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  • Preface
  • Anne C. Dailey

Psychoanalysis has been a presence in legal thinking for over seventy years. Nevertheless, the history of the relations between the fields of law and psychoanalysis is fraught with ambiguity. Each discipline has had its internal controversies, while the interaction of the two has produced a distinctive set of accomplishments and setbacks. Yet despite the historiographic challenges, the convergence of law and psychoanalysis is clearly demarcated by the publication of two works, one that called the field into being in 1930, and another that ushered it into relative dormancy in the 1960s. The publication of this special issue of American Imago may well mark a third such defining moment to the extent it portends a renewal of earlier scholarly aspirations for the broad investigation of psychoanalytic ideas about human nature and their relevance to law.

The seminal event for law and psychoanalysis was the publication in 1930 of Jerome Frank's widely read book, Law and the Modern Mind, in which he called attention to the unconscious and irrational influences that permeated judicial decision-making. This was a distinguished beginning for the field of law and psychoanalysis. Frank was a judge on the Second Circuit Court of Appeals, a member of the Yale Law School faculty, and a leading figure in early twentieth-century legal thought. He became interested in psychoanalysis after he underwent six months of treatment with the New York analyst Bernard Glueck (Brickner 1987). Frank's influence on legal thinking was profound. His book "fell like a bomb on the legal world," as one commentator remarked, and opened the door to decades of psychoanalytic inquiry by his followers (Verdun-Jones 1974, 184).

These decades witnessed the application of psychoanalysis to a wide range of legal subjects, including criminal law, mental health law, child custody law, and jurisprudence. As Susan Schmeiser observes in her essay in this issue, psychoanalytically oriented doctors and lawyers were closely involved during the [End Page 291] 1950s in drafting the nation's first model criminal code, which laid the foundation for the modern criminal justice system. Analysts and lawyers were busy collaborating in other areas of the law as well. The Yale law professor, Joseph Goldstein, and the Yale child psychiatrist, Albert Solnit, worked closely with Anna Freud to produce a trilogy of psychoanalytically informed books (1973; 1979; 1986) on child custody that revolutionized the law in this area by focusing on the psychological needs of the child.

But the high water mark of law and psychoanalysis was, indisputably, the publication in 1967 of the 800-page treatise Psychoanalysis, Psychiatry, and Law, by Jay Katz, Joseph Goldstein, and Alan Dershowitz. Working with Goldstein was Jay Katz, an analyst on the Yale Law Faculty, and Alan Dershowitz, a Yale law student at the time and future Harvard law professor. With the publication of their book, law and psychoanalysis as a distinct field of academic study reached its zenith and, at the same moment, presaged its own imminent decline.

The authors of this path-breaking treatise had high ambitions. Katz, Goldstein, and Dershowitz sought "to identify the assumptions reflected in and by law about the nature of man, his motivations, his capacities, and his limitations and to compare them with the assumptions in a single theory of man, psychoanalysis" (1967, 2). They scoured legal doctrines as diverse as trusts and estates, criminal procedure, copyright law, family law, military law, evidence, insurance, civil commitment, and patent law, and they excerpted material from legal scholars and philosophers as diverse as Friedrich Nietzsche, Georg Simmel, Henry Maine, John Bentham, Oliver Wendell Holmes, Jr., and Jerome Frank. Their references to psychoanalytic authors included, to name only a few, Sigmund Freud, Richard Sterba, Edith Jacobson, Heinz Hartmann, Ernst Kris, Rudolph Loewenstein, Roy Schafer, and Robert Waelder. By applying the ideas of these thinkers to a variety of legal doctrines and cases, the authors hoped to uncover the assumptions about human nature and motivation that lay beneath the law's ideal of the "reasonable man," a fictional figure who embodied conscious, rational thinking. They probed ideas about the dynamics, economic underpinnings, and development of the structural model of mind, and its relevance to issues such as criminal guilt...


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pp. 291-295
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