The American Historian


Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture

Susanna L. Blumenthal

Review by Herbert Hovenkamp

This very readable book borrows its title from a well-known book by the legal realist Jerome Frank, published in 1930. Unlike Frank’s book, however, Susanna L. Blumenthal’s Law and the Modern Mind is largely concerned with the nineteenth century and is much more historical than normative. She explores the way that the American legal system encountered various forms of mental deviancy or departures from the usual assumptions about consciousness, capacity, rationality, or responsibility. The scope is broad and the book jumps off from the traditional historical concern with criminal law, but focuses mainly on issues of private law. Blumenthal discusses the legal capacity to make a contract or will, tort liability for intentional acts or negligence, and even insanity or mental state as grounds for divorce.

Blumenthal begins with the prevailing psychology and philosophy among conservatives during the enlightenment and early national period: faculty psychology and Scottish common sense realism. Many of their more articulate proponents were Calvinists who had a very difficult time reconciling any concept of human free will and responsibility with God’s plan. Nevertheless, their strong sense of divine determinism prevented them from reaching one logical conclusion: no one is responsible for anything. The trick was to come up with a defensible notion of human responsibility that adhered to the premise that everything is a part of God’s plan but people are nevertheless accountable for their actions.

This naturally led to different problems in criminal and civil law. Blumenthal mainly focuses on the latter, making the occasional obvious analogy to criminal law. Additionally, many of the ideas she discusses migrated from criminal law to private law. She includes a fascinating discussion about the emerging field of the medical jurisprudence of insanity, focusing first on Isaac Ray, whose 1838 Treatise on the Medical Jurisprudence of Insanity would have a strong influence on both criminal and civil law. Most notably, Ray’s work led to an exchange of letters with New Hampshire Justice and later Chief Justice Charles Doe, which Blumenthal recalls very briefly. Justice Doe’s exchange with Ray led him to object to and eventually to change New Hampshire’s criminal rules of legal responsibility. This resulted in the abandonment of the then widely followed by severely narrow McNaghten rule for insanity defense in criminal cases.

Blumenthal also recounts the influence of Francis Wharton’s and Moreton Stille’s Treatise on Medical Jurisprudence, first published in 1855 but reprinted several times. This book, as well as others, represented a major interdisciplinary venture in law for the nineteenth century, and was noteworthy for doing so in a field other than economics. Nevertheless, Oliver Wendell Holmes, Jr. and Nicholas St. John Green, both pioneers in tort law and Holmes in many other areas as a well, were highly skeptical. In a review, Holmes even doubted the legitimacy of the field, regarding it as a superficial attempt to combine law and medicine. That prediction turned out to be wildly wrong. In the late 1860s, when Holmes wrote his review, the fields of psychology and psychiatry were on the verge of major expansion, much of which Holmes would live to see and experience.

This reviewer would have liked to see more discussion of the influence of Charles Darwin on mental science, much of which began during the period that Blumenthal discusses, although the most expansive developments occurred later. For example, there is no mention of Italian criminologist Cesare Lombroso, whose book Criminal Man was published in 1876 and had considerable influence on American thinking about legal responsibility. The same is true of Francis Galton, whose work published from the 1860s through the 1890s strongly influenced the American eugenics movement. While much of the historical study of post-Darwinian mental science and law focuses on criminal law, the effects on civil responsibility remain largely unexplored. For example, it is worth remembering that Holmes’ opinion upholding a compulsory sterilization order in Buck v. Bell (1927), written just as the science of eugenics was falling apart, was a civil, not criminal, action.

Some of the most interesting parts of this book concern the role of alleged mental incapacity in actions involving tort liability, or the capacity to make a contract or will or obtain a divorce. One characteristic of the period was the notion that criminal and civil competence were fundamentally different things. Blumenthal observes that already by the first half of the nineteenth century Isaac Ray complained that it was extremely difficult to assert an insanity defense successfully in a criminal case, even when capital punishment was on the table. However, the slightest disorder might suffice to take away a person’s property or liberty rights in civil actions. Ray could find no “physiological or psychological ground” for this civil-criminal distinction. These stark differences were highlighted in a 1907 California Supreme Court decision, which observed that “there are many kinds and degrees of insanity, and it is not every kind or degree which will relieve a person from such responsibility, and the degree of mental impairment which would authorize his confinement in an asylum for the insane may be entirely different from the degree of mental derangement which will relieve him from responsibility for his criminal acts” (People v. Willard, 150 Cal. 543). The court then upheld the conviction and execution of a severely mentally ill man who killed the attending sheriff in a courtroom just as a judge was signing his civil commitment order.

This is a well done and comprehensive book, covering a great deal of unexplored territory. While the history of mental capacity in criminal cases has been written and rewritten, most of the historical treatments of civil cases are thin and superficial. Blumenthal supplies an important corrective.


Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877

Amalia D. Kessler

Review by Kevin Butterfield

Henry Vanderlyn kept a daily diary of his life and his law practice in Chenango County, New York, from 1827 to 1857 and was obsessively mindful of how he presented himself to others. Even his diary could be a means of publicity: he would read aloud favorite passages to family and friends. And Vanderlyn, like countless other lawyers in the young United States, found the courtroom—with its speeches to the jury, its heated cross-examinations, and its doors open to the public—to be a good venue for what Stanford law professor Amalia Kessler calls “republican self-display” (p. 186). In court, Vanderlyn found that common-law trials created countless opportunities for lawyers like him to live up to the Ciceronian ideal of a republican citizen. He could be a lawyer-orator as he represented his clients and his fellow citizens could see him doing it.

There were, however, many courts in the early United States in which men like Vanderlyn would have had no opportunity to display their skill and their virtue. Equity, or chancery, courts existed in many states, which lacked a jury; took testimony in writing and typically in secret; and relied on court officials such as judges, masters, commissioners, and examiners to gather evidence and control the proceedings, equipping the judge with broad discretionary power over the procedure and course of each suit. Equity courts were, in short, what Kessler calls “quasi-inquisitorial” institutions: yes, the parties and their lawyers initiated the litigation, but those lawyers did not then run the show. And in the nineteenth-century United States, courts like these, lacking in the thrust-and-parry of oral, adversarial procedure, would soon come to be seen as essentially un-American, unable to provide the due process to which all were entitled and ill-suited to a nation of self-seeking equals.

This is the story that Kessler tells in this remarkably persuasive and insightful account of legal change. One part of the explanation, writes Kessler, is that those closed-door, judge-directed proceedings did little to satisfy men in the rapidly expanding legal profession, men like Vanderlyn who sought opportunities for courtroom performance. But that was just one of many factors at play, and it is just one small part of Kessler’s nuanced exploration of the embrace of adversarialism as a distinctively American approach to dispute resolution and the search for justice.

The massive expansion of the market economy also meant growing numbers of plaintiffs and defendants, too many for the limited staff of equity courts to maintain their active role, and lawyers who coveted the chance to dictate evidence-gathering in equity proceedings soon got it. No less important, a “longstanding discourse linking equity with authoritarian (and thus antidemocratic) rule,” powerful in England in the seventeenth century, found fertile soil in the post-Revolutionary United States, particularly in Kessler’s primary area of study, New York (p. 114). And there was, too, a coinciding market-oriented conception of American society, in which “the adversarial courtroom clash of conflicting interests came to be praised as a valuable (market-promoting) public good” (p. 201). Though many features of equity, such as the injunction, would persist even after the famous Field Code reforms of the mid-nineteenth century (and, indeed, some states such as Delaware have preserved separate courts for law and equity to this day), there was in the first half of the nineteenth century a wide-scale embrace of characteristics foreign to equity, especially lawyer-driven, oral, adversarial procedure.

Inventing American Exceptionalism, as the title suggests, is much more than a tale of the gradual changes in procedures followed by the beleaguered equity courts of the early United States. Kessler has written an important, engaging, and even inspiring book that ultimately asks us to reflect on “the contingent and contested nature of our nineteenth-century embrace of adversarialism” (p. 354) It was an embrace that helped Americans in the nineteenth century make sense of what made them unique in the world. But it was also an embrace of an ethos that, in the twenty-first century, can thwart efforts to reform our legal system in any meaningful way that might help expand access to justice for the poor and for the powerless.

There were, it turns out, other options that were seriously considered by Americans as they faced “the urgency of ameliorating the growing tensions between capital and labor” over the course of the first several decades of the 1800s (p. 209). Kessler describes how Americans considered and dismissed the idea of the conciliation court, an informal, lawyer-free alternative to adversarial litigation that emerged amid the French Revolution. A conciliator, a figure of some standing in the community, would hear both parties in secret and arrive at some equitable resolution, sans lawyers. Courts on this model, such as those set up by the Danish in 1795, would be discussed on this side of the Atlantic across much of the nineteenth century.

But those kinds of institutions worked, Americans would soon conclude, only in places “where the populace tended toward subservience” (p. 253). They were entirely unsuited to “a society lacking the centuries-old tradition of European corporatist hierarchy” (p. 350). Americans wanted both sides in a contest to vie for the upper hand with all the legal tools available, and attempts to establish or maintain those kinds of institutions in places as far apart as New York, Florida, and California were quashed. When what were essentially conciliation courts were set up by the Freedmen’s Bureau in their efforts to reconstruct the South, they met serious opposition from southern whites and their supporters. Resistance came in part because these tribunals were seen as emblems of an occupying military force. But perhaps even more deeply felt was the idea that these courts simply “failed to deliver due process,” something conceived of by then, as now, largely in adversarial terms (p. 313).

History reveals options. In a civil case, how a court goes about its business might be the process dominated by the parties’ lawyers to which we are accustomed, or it might be one controlled by a powerful judge with the discretionary authority to seek answers and dispense justice. Both options were available to nineteenth-century Americans, but they chose only one. They did so for many reasons, including the desires of the Henry Vanderlyns of the young nation to make their mark. But in the end much of the story Kessler tells us comes down to how Americans saw themselves: we are, wrote one man in a letter to the editor of the Baltimore Post in 1856, a “litigious people…a keen, shrewd, energetic, business people, tenacious of our rights, even to the tenth part of a hair” (p. 262). Kessler does a tremendous job examining how and why ideas of American exceptionalism shaped the American justice system in enduring ways, for good and for ill. Legal historians should and, I think, will read this book. All scholars and students interested in the origins of American cultural identity—or in how and why our present court system can provide such unequal access to justice for the (wealthy) few and for the many—should read it, too.