Law and the Unconscious: A Psychoanalytic Perspective by Anne C. Dailey

Field: Arts and Humanities (Social Sciences)

Reviewed by: Law and the Unconscious: A Psychoanalytic Perspective by Anne C. Dailey Katherine Ebury Dr. (bio) Law and the Unconscious: A Psychoanalytic Perspective by Anne C. Dailey. New Haven and London: Yale University Press, 2017, 304 pages. I began reading Anne C. Dailey's Law and the Unconscious while writing the Call for Papers (CFP) of a conference I was organizing called "Literature, Law, and Psychoanalysis, 1890-1950" at the University of Sheffield. It was recommended to me initially by Dr. Ravit Reichman (Brown University), who I had asked to be one of our keynote speakers. Some years earlier, I had read Dailey's special issue of American Imago on "Legal Analysis" (published 2007) and had been intrigued by her identification of the seminal moment for law and psychoanalysis as the 1930 publication of Jerome Frank's widely read book, Law and the Modern Mind. She also argued that the "high water mark of law and psychoanalysis" was the 1967 book Psychoanalysis, Psychiatry, and Law by Jay Katz, Joseph Goldstein, and Alan Dershowitz (2007, pp. 291-292). Frank's 1930 book and Katz et al.'s 1967 book are still the key reference points for the thinking in her new Law and the Unconscious. As I am a researcher based in the UK, I immediately wondered if equivalent paradigm-altering texts to Frank's book or Katz's were published in the UK. One landmark option I considered was Theodore Reik's polemic The Unknown Murderer (1932), which was promptly translated into English by Dr. Katherine Jones (wife of Ernest) and published by Virginia and Leonard Woolf's influential Hogarth Press. Reik and Frank share a similar ambition not simply to deploy psychoanalysis, but to go beyond this aim to, as Dailey puts it, call attention "to the unconscious and irrational influences that permeated judicial decision making" (2007, p. 291). Reik (1961) goes further and says he will examine "a pathology of legal judgements," as, for example, "one must not underestimate the influence of unconscious unfavourable impressions on judge and jury; they diminish suspicion against evidence which would otherwise [End Page 269] have been more carefully examined" (p. 45). The role of psychoanalysis in the legal system is thus not only intended for the criminal, but for the legal profession. Frank himself was a judge who had undergone analysis himself with Bernard Glueck, "one of Darrow's expert witnesses in the Leopold and Loeb Case" (Dailey, 2017, pp. 57-61). In Dailey's nuanced updating of this application of psychoanalytic questioning to the judicial process, she claims that "[p]sychoanalysis puts faith in judges to engage in decision-making that is relatively free from unconscious bias" and that judges are like analysts in having a "professional imperative" to reflect on the process of their decision-making (2017, p. 138). Dailey's excellent book has been long in preparation, with article versions of the chapters appearing in legal journals dating as far back as 1998. Indeed, across eight chapters and a conclusion, the reader of Law and the Unconscious begins to experience it as a "life's work" kind of book, a calculated intervention which seeks to change things in the real world. Indeed, the design of the book reflects this, with three initial chapters on "Foundations," focused on historical and theoretical contexts, followed by five chapters on "Applications," which seek to reengineer the relationship between law and psychoanalysis through case studies. Throughout the book, Dailey targets "law's dogged resistance to the reality of unconscious life" and its "denial of human irrationality," but she also examines even-handedly the pragmatic value of "legal fictions" originally designed to preserve the social contract and to keep us safe (pp. 2-3). These legal fictions include the presumption of rationality and the reasonable person standard (p. 225). Dailey argues that while branches of knowledge which have their roots in the psychoanalytic revolution (such as behaviorism, neuroscience, and cognitive psychology—however far they might now diverge from it) are represented in the court room, psychoanalysis is currently excluded both from the law and from behavioral psychology (p. 13). In the "Foundations" section, she examines topics including Oliver Wendell Holmes's reading of Freud...