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October 25, 2008, 2:30 PM

The Presumption of Rationality: Psychological Challenges to Legal Certainty

Participants: Peter Brooks, Anne Dailey (moderator), Carol Gilligan, Nomi Stolzenberg, Kenji Yoshino

Rationality has long prevailed as the dominant model of individual decision making in law. For the most part, legal rules assume that people act rationally and that most individual behavior is the product of reasoned choice. What this dominant model of individual decision making ignores is the fundamental role of imagination in individual thought and behavior. In his seminal 1930 book, Law and the Modern Mind, Jerome Frank drew on psychoanalytic ideas about imagination in describing the distorting effects of infantile wishes and fantasies on the decision making of legal actors and judges. More recently, legal thinkers and judges, including David Bazelon, Peter Brooks, and Martha Nussbaum, have applied psychoanalytic and related ideas about imagination to particular legal problems. This roundtable takes a step back to consider more broadly the interplay between law and imagination. What would it mean for law to take seriously the idea of imagination? How do we reconcile the law's emphasis on objective behavior with a psychodynamic understanding of unconscious fantasy? How does a focus on imagination threaten the liberal legal ideal of the rational, autonomous individual? Does imagination inevitably lead us toward a more romantic, but arguably more authoritarian and less democratic, vision of law?

Peter Brooks has recently joined the faculty of Princeton University as Mellon Visiting Professor, after many decades of teaching at Yale, where he was Sterling Professor of Comparative Literature. A recent recipient of the Mellon Foundation Distinguished Achievement Award, he plans to lead a three-year seminar at Princeton's University Center for Human Values on "The Ethics of Reading and the Cultures of Professionalism." He is the author of a number of books, including Henry James Goes to Paris, Realist Vision, Troubling Confessions, Reading for the Plot, and The Melodramatic Imagination.

Anne Dailey is the Evangeline Starr Professor of Law and Associate Dean for Research and Faculty Development at the University of Connecticut School of Law. Professor Dailey received her B.A. from Yale University and her J.D. from Harvard Law School. Her current research focuses on the application of psychoanalytic developmental psychology to modern conceptions of children's rights. She is the recipient of the 2003 CORST prize from the American Psychoanalytic Association, and recent Guest Editor for the Fall 2007 issue of American Imago, entitled "Legal Analysis."

Carol Gilligan is a psychologist, professor, and novelist. She was named by Time Magazine as one of 25 most influential Americans. Harvard University Press describes her 1982 book, In a Different Voice, as "the little book that started a revolution." Her first novel, Kyra, published in January 2008, was reviewed in the San Francisco Chronicle as "a rare thing: an engrossing, deeply emotional, thinking person's love story." In 2002, The Birth of Pleasure was described by the Times Literary Supplement as a "thrilling, new paradigm" and characterized by National Public Radio as the work of a psychologist who writes like a novelist. She is currently University Professor at New York University.

Nomi Stolzenberg is the Nathan and Lilly Shapell Professor of Law at the University of Southern California Law School. Her research spans a range of interdisciplinary interests, including legal fictions, law and religion, law and liberalism, and the complex relations between property, community, and sovereignty. A strong proponent of multidisciplinary research and teaching, she helped establish the USC Center for Law, History and Culture, which involves scholars and students from throughout USC's campus. She is currently at work on two books on liberalism and religion in American law and culture, as well as several other research projects—one exploring the relationship between liberalism and romanticism, another examining the concept of "creating facts on the ground."

Kenji Yoshino is a Chaired Professor of Constitutional Law at NYU School of Law. Educated at Harvard, Oxford (as a Rhodes Scholar), and Yale Law School, he taught at Yale Law School from 1998 to 2008, most recently as the inaugural Guido Calabresi Professor of Law. He has published in both academic journals, such as the Columbia Law Review and the Yale Law Journal, and in more popular media, such as The New York Times and The Washington Post. His book, Covering: The HIdden Assault on our Civil Rights, was published in 2006. He is currently at work on his second book on Shakespeare and the law.


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