The Psychoanalytic Tradition in American Law

2017 ◽  
Author(s):  
Anne C. Dailey
Keyword(s):  
Free Speech ◽  
Criminal Responsibility ◽  
The United States ◽  
The Unconscious ◽  
Judicial Decision Making ◽  
Oliver Wendell Holmes ◽  
American Law ◽  
Early Childhood Experience ◽  
The Common ◽  
Unconscious Guilt

This chapter surveys the long and important tradition of law and psychoanalysis in the United States beginning with the work of Oliver Wendell Holmes, Jr., up to the mid-twentieth century. While “tradition” may seem too strong a term for the diverse collection of psychoanalytic writings carried out by legal thinkers over the course of more than a half-century, what ties this work together is a shared recognition of the unconscious depths of the human psyche and the common questions that a psychoanalytic perspective on human behavior raises for law. As this chapter details, many early- to midcentury legal thinkers and judges turned to psychoanalytic ideas for help in addressing a broad set of concerns, including the value of free speech in a democracy, the processes of judicial decision-making, degrees of criminal responsibility, and child custody. The chapter focuses on those legal thinkers in this period whose attention was captured by the unconventional, sometimes even shocking, psychoanalytic ideas about the unconscious, guilt, free will, conflict, instinctual drives, sexuality, and early childhood experience. A study of the psychoanalytic tradition in American law is essential for understanding the vital contribution that contemporary psychoanalysis can make to law today.

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

The Republic of Bees

2019 ◽  
pp. 77-126
Author(s):  
Lawrence M. Friedman
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
The United States ◽  
State Constitutions ◽  
System A ◽  
The Social ◽  
American Law ◽  
The Common ◽  
The Republic ◽  
Law Of Evidence

This chapter details changes in American law from the eighteenth century onward, covering federal and state constitutions, judges, organization of courts, and civil procedure, and the law of evidence. The colonies declared themselves independent in 1776. However, American law continued to borrow from English law. English doctrines that were needed and appropriate were welcome. Between 1776, and the middle of the nineteenth century, there developed a true republic of bees; their flowers were the social and economic institutions that grew up in the United States. American conditions and ideas were the lawmakers that made American law a distinctive system: a separate language within the common-law family.

scholarly journals All of Life an Experiment

2020 ◽  
Vol 4 (1) ◽  
pp. 21-39
Author(s):  
Jared Harpt
Keyword(s):  
World War I ◽  
Supreme Court ◽  
Free Speech ◽  
World War ◽  
Supreme Court Justice ◽  
Oliver Wendell Holmes ◽  
Us Supreme Court ◽  
The Common ◽  
Clear And Present Danger ◽  
Do So

US Supreme Court Justice Oliver Wendell Holmes, Jr. reshaped American free speech law through his Supreme Court opinions during World War I and after. This paper explores the oft-debated questions of whether and how Holmes’s free speech views changed between his legal education (during which he was taught that the common law’s bad tendency test allowed governments to punish any speech after it was uttered) and World War I (during which he created and developed the more expansive clear and present danger test). This paper argues that Holmes developed the underlying principles of his later free speech ideas in his writings on American common law, but that he only expressed those ideas in Supreme Court opinions after several other legal thinkers prodded him to do so.

Introduction

2021 ◽  
pp. 1-6
Author(s):  
Amanda L. Tyler
Keyword(s):  
United States ◽  
Great Britain ◽  
Common Law ◽  
The United States ◽  
Habeas Corpus ◽  
American Law ◽  
History Of ◽  
The Common ◽  
Anglo American

The Introduction provides an overview of the history of the writ of habeas corpus and an overview of the book, which tells the story of what is sometimes known as “the Great Writ” as it has unfolded in Anglo-American law. The primary jurisdictions explored are Great Britain and the United States, yet many aspects of this story will ring familiar to those in other countries with a robust habeas tradition. The book chronicles the longstanding role of the common law writ of habeas corpus as a vehicle for reviewing detentions for conformity with underlying law, as well as the profound influence of the English Habeas Corpus Act of 1679 on Anglo-American law. The Introduction highlights how the writ has at times failed to live up to its glorification by Blackstone and others, while noting that at other times it has proven invaluable to protection of liberty, including as a vehicle for freeing slaves and persons confined solely based on a King’s whim.

Foreign-Official Immunity under the Common Law

2020 ◽  
pp. 433-468
Author(s):  
John B. Bellinger ◽  
Stephen K. Wirth
Keyword(s):  
Foreign Relations ◽  
Common Law ◽  
The United States ◽  
Executive Branch ◽  
Deep Roots ◽  
Open Questions ◽  
American Law ◽  
The Common ◽  
Heads Of State ◽  
Foreign Ministers

This chapter looks at foreign-official immunity. Foreign-official immunity is divided into status-based immunity, which affords absolute immunity to sitting heads of state, heads of government, and foreign ministers, and conduct-based immunity, which affords immunity to sitting and former foreign officials for official conduct undertaken on behalf of the foreign sovereign. Each of these immunities has deep roots in customary international law and the common law. And for nearly two centuries, U.S. courts applied common-law principles of immunity, as articulated by the executive branch in court filings known as “suggestions of immunity,” to assess whether a foreign state or foreign official was immune from suit in the United States. The Fourth Restatement of Foreign Relations Law does not yet include a section on the immunity of foreign officials in U.S. courts. The American Law Institute may consider including this passionately debated topic in a future volume. In the meantime, the chapter provides a background on the state of the case law and executive-branch practice, identifies several challenging open questions, and outlines some principles that may be useful to the eventual drafters of the Fourth Restatement’s section on the topic.

scholarly journals Parental Criminal Responsibility for the Misconduct of Their Children: A Consideration

2018 ◽  
Vol 21 ◽  
pp. 1-21
Author(s):  
Charnelle Van der Bijl
Keyword(s):  
United States ◽  
South African ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Common Law ◽  
Strict Liability ◽  
The United States ◽  
Parental Responsibility ◽  
The Common

This contribution examines parental criminal responsibility for the delinquent acts of their children.  As South African law has been swayed by legal philosophy of Anglo-American jurisprudence, a comparative analysis is undertaken with the United States of America, where this issue has been addressed legislatively in both civil tort law and criminal law. The reasoning behind the implementation of specific legislation in the United States is that the common law principles are rooted on the principles of individualisation, which does not specifically cater for parental liability.  Parental responsibility laws have been challenged constitutionally over the years in the United States. Critics are of the view that such laws interfere with the rights of parents to raise their children and are a form of cruel punishment. Additional criticism raised is that parental responsibility laws impose strict liability on parents. Furthermore, some misgivings have been shed that many parents face challenges of being single parents or poverty, which will be exacerbated with the imposition of fines or imprisonment for the misconduct of their children. Despite these concerns and criticism, it will be shown that these laws have withstood the challenges over many decades, in the United States, in both the fields of the law of tort and criminal law. The common law of tort provides for the liability of parents for the conduct of their child. However, such conduct must be specifically attributable to a parent’s action or inaction. The purpose behind tort parental responsibility legislation focuses not only on providing monetary compensation by parents where their children are unable to do so, but also aims to encourage parents to provide better supervision of their children.  At the opposite end of the spectrum, the focus of statutory criminalisation tends to remain on criminal liability of parents for failing to protect others from their child, due to a failure in supervision and to prevent juvenile delinquency.  The South African law of delict is briefly contiguously considered in the context of parental responsibility laws. The concept of parental criminal responsibility laws under South African law is then considered and proffered as a useful mechanism to regulate misconduct of children currently falling outside the aegis of the criminal law.

Ives and MacPherson: Judicial Process in the Regulatory State

2016 ◽  
Vol 9 (1-2) ◽  
Author(s):  
John Fabian Witt
Keyword(s):  
New York ◽  
United States Supreme Court ◽  
The United States ◽  
Modern World ◽  
Regulatory State ◽  
Judicial Process ◽  
Court Of Appeals ◽  
American Law ◽  
The Common ◽  
The Relationship

AbstractA century ago, the New York Court of Appeals decided a case whose implications have reverberated through American law ever since. The case, like so many, arose out of one of the most notorious body-smashing technologies of the modern world. And it was a case whose opinion was authored by an up-and-coming jurist rumored to be a likely future nominee to the United States Supreme Court. Naturally, that opinion has appeared in torts casebooks ever since. The case, of course, was not MacPherson v. Buick, the occasion for this symposium, but rather Ives v. South Buffalo Railway, in which the New York Court of Appeals struck down what was essentially the nation’s first workmen’s compensation statute. It does not appear in that many casebooks. But it does in some. In an opinion written by Judge William Werner, the court tried to throw itself in front of the coming regulatory state. It failed, of course, at least in the most obvious sense. The regulatory state plays a vast role in the contemporary state, and has for more than three quarters of a century at least. But the Ives case’s engagement with the compensation scheme anticipated the central theme in American tort law in the century since: the relationship between tort adjudication and the common law, on one hand, and the forms of administration, on the other.

Benjamin Henry Latrobe and the nomenclature of two North American fishes

1987 ◽  
Vol 14 (1) ◽  
pp. 85-88
Author(s):  
CHARLOTTE M PORTER
Keyword(s):  
United States ◽  
North American ◽  
The United States ◽  
American Shad ◽  
New Name ◽  
The Common ◽  
Fish Louse

A curious error affects the names of three North American clupeids—the Alewife, American Shad, and Menhaden. The Alewife was first described by the British-born American architect, Benjamin Henry Latrobe in 1799, just two years after what is generally acknowledged as the earliest description of any ichthyological species published in the United States. Latrobe also described the ‘fish louse’, the common isopod parasite of the Alewife, with the new name, Oniscus praegustator. Expressing an enthusiasm for American independence typical of his generation, Latrobe humorously proposed the name Clupea tyrannus for the Alewife because the fish, like all tyrants, had parasites or hangers-on.

Louis Menand: The Metaphysical Club: A Story of Ideas in America. 2001. New York: Farrar, Straus and Giroux. 546 pp.

2003 ◽  
Vol 9 (1) ◽  
pp. 201-204
Author(s):  
Lance Kenney
Keyword(s):  
New York ◽  
Cold War ◽  
William James ◽  
The United States ◽  
History Of Ideas ◽  
Cultural Impact ◽  
Oliver Wendell Holmes ◽  
History Of ◽  
Charles Peirce ◽  
The Cold War

Louis Menand’s The Metaphysical Club, daunting in its choice of subject matter, closely aligns itself with the ancient sense of the word ‘history’ as a fluid, almost epic narrative. The Metaphysical Club of the title was a conversation group that met in Cambridge for a few months in 1872. Its membership roster listed some of the greatest intellectuals of the day: Charles Peirce, William James, Oliver Wendell Holmes, Chauncey Wright, amongst others. There is no record of the Club’s discussions or debates—in fact, the only direct reference to the Club is made by Peirce in a letter written thirty-five years later. Menand utilizes the Club as a jumping-off point for a sweeping analysis of the beliefs of the day. The subtitle of the book belies its true mission: ‘a story of ideas in America.’ Menand discusses the intellectual and social conditions that helped shape these men by the time they were members of the Club. He then shows the philosophical, political, and cultural impact that these men went on to have. In doing so, Menand traces a history of ideas in the United States from immediately prior to the Civil War to the beginning of the Cold War.

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