Law's Madness

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Law and madness? Madness, it seems, exists outside the law and, in principle, society struggles to keep these slippery terms separate. From this perspective, madness appears to be law's foil, the chaos that escapes law's control and simultaneously justifies its existence. Law's Madness explores the gray area between the realms of reason and madness.
The distinguished contributors to Law's Madness propose a fascinating interdisciplinary approach to the instability and mutual permeability of law and madness. Their essays examine a variety of discursive forms—from the literary to the historical to the psychoanalytic—in which law is driven more by narrative than by reason. Their studies delineate the ways in which the law takes its definition in part from that which it excludes, suppresses, or excises from itself, illuminating the drive to enforce barriers between non-reason and legality, while simultaneously shedding new light on the constitutive force of the irrational in legal doctrine.
Law's Madness suggests that the tense and paradoxical relationship between law and madness is precisely what erects and sustains law. This provocative collection asks what must be forgotten in order to uphold the rule of law.
Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Lawrence Douglas is Associate Professor of Law, Jurisprudence, and Social Thought at Amherst College. Martha Merrill Umphrey is Associate Professor of Law, Jurisprudence, and Social Thought at Amherst College.
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Law'S Madness

By Martha Merrill Umphrey

University of Michigan Press

Copyright © 2003 Martha Merrill Umphrey
All right reserved.

ISBN: 0472113291

Policing Stories

Peter Brooks

I will be talking here about the law from the perspective of an outsider--a perilous enterprise, but one in which I take some comfort from recent arguments, especially by Austin Sarat and Paul W. Kahn, that legal culture and discourse need critique from without: that most legal scholarship, however critical of the law, situates itself within the law, in a reformist enterprise that cannot, by its very nature, stand outside law as a system. "There is remarkably little study of the culture of the rule of law itself as a distinct way of understanding and perceiving meaning in the events of our political and social life," writes Kahn in The Cultural Study of Law. My own effort here may be in the nature of what the Russian Formalists--that remarkable group of critics and theorists who flourished in the Soviet Union just after the revolution, before Stalinism put an end to their experimentalism--called ostranenie, "making strange," the attempt to bathe the familiar in a new light, in order to ask questions of legal business-as-usual. In particular, I want to think about the place of narrative in the law, and the strange manner in which the law recognizes that place: by way of denial.

I begin with a Supreme Court case from 1997, Johnny Lynn Old Chief v. United States (117 S. Ct. 644). The question at issue is whether a defendant with a prior conviction on his record should be allowed to "stipulate" to the prior conviction, thus disallowing the prosecution from presenting the facts of the earlier felony in making the case against him for his new alleged crime. In other words, the defendant here knew he had to admit to a prior crime and conviction--on an assault charge--but didn't want the prosecutor to be able to detail the prior crime, for fear that it would aggravate his sentence on the new crime (which in fact was quite similar to the prior one). The prosecutor refused to accept the stipulation, and the district court judge ruled in his favor: the full record of the prior crime and conviction was offered as evidence. Old Chief was found guilty on all counts of the new charges of assault, possession, and violence with a firearm. He appealed. His conviction was upheld by the Ninth Circuit, which essentially restated the traditional position that the prosecution is free to make its case as it sees fit. This will be the position argued by Justice O'Connor when the case reaches the Supreme Court. O'Connor writes for the four dissenting justices (Rehnquist, Scalia, Thomas, and herself): "That a variety of crimes would have satisfied the prior conviction element of the . . . offense does not detract from the fact that petitioner committed a specific offense. The name and basic nature of petitioner's crime are inseparable from the fact of his earlier conviction and were therefore admissible to prove petitioner's guilt" (657).

But this claim is rejected by the majority (consisting of Justices Souter, Stevens, Kennedy, Ginsburg, and Breyer) in an opinion written by Souter that is full of interest. Souter argues that introduction of the full story of the past crime could be unfairly prejudicial; it could lead the jury to convict on grounds of the defendant's "bad character," rather than on the specific facts of the new crime. The story of the past crime might "lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged" (650). The story of the past crime must be excluded, not because it is irrelevant, but because it may appear overrelevant: "It is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge" (650-51, citing Justice Jackson in Michelson v. United States, 335 U.S. 469, 475-76). The story of Old Chief's past crime must be excluded because it risks creating too many narrative connections between past and present, and presenting the story of a bad actor deserving punishment whatever the specific facts of the new case.

Souter in this manner orders the exclusion of the past story, reverses Old Chief's conviction, and remands the case for further proceedings. But the most interesting moment of his opinion comes in his discussion of the dissenters' point of view, their argument that the prosecution needs to be able to present all the evidence, including the story of past crime and conviction, in its specificity. He concedes the need for "evidentiary richness and narrative integrity in presenting a case" (651). He goes on to say that "making a case with testimony and tangible things . . . tells a colorful story with descriptive richness." And he continues:

Evidence thus has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. This persuasive power of the concrete and particular is often essential to the capacity of jurors to satisfy the obligations that the law places on them. (653)
It is almost as if Souter had been reading literary "narratology" (which he may have been, since he appears to be the most erudite and curious of the current justices) and been persuaded by the argument that narrative is a different kind of organization and presentation of experience, a different kind of "language" for speaking the world. In conclusion to this section of his opinion, he writes:

A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. People who hear stories interrupted by gaps of abstraction may be puzzled at the missing chapters . . . A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best. (654)
Here Souter turns back to the case of Old Chief, to argue that the prosecution's claim of the need to tell the story of the earlier crime is unwarranted because that is another story, it is "entirely outside the natural sequence of what the defendant is charged with thinking and doing to commit the current offense." Old Chief's stipulation does not result in a "gap" in the story, it does not displace "a chapter from a continuous sequence" (655).

Souter hence rules out the prosecution's longer, fuller narrative as the wrong story, something that should not be part of the present narrative sequence. It is interesting that in so doing he feels the need to discourse on the place and power of narrative in the presentation of legal evidence: its "richness," its "momentum," its "persuasive power." "A syllogism is not a story": in this phrase, Souter recognizes what some scholars concerned with "law and literature" have argued, that the law's general assumption that it solves cases on the basis of reasoning alone is inadequate, and indeed a falsification. Storytelling is present everywhere in the law, from the competing stories presented in the courtroom, to the reformulation of those stories from the written record at the appellate level, on up to the grand narratives of the Supreme Court, which must match the story of the case at hand to the continuing narrative of constitutional interpretation.

Souter here breaches the bar over what you might call an element of the repressed unconscious of the law, bringing to light a narrative content and form that traditionally go unrecognized. Yet curiously, or perhaps predictably, he does it by way of arguing that in the present case the lower courts failed to guard against the irrelevant and illegitimate power of narrative, admitting into evidence story elements--the story of Old Chief's prior crime--that should not be considered part of the "natural sequence" of the present crime. The past story would give too much credence to the present story that the prosecution must prove. It is in defending against the power of storytelling that Souter admits its force.

This defensiveness is typical of the law: its recognition of the claim of narrative in the law most often comes--though rarely in such open and perspicuous form as Souter gives it here--by way of its desire to limit the play of narrative, its desire to set narrow formal limits to storytelling. The law rarely recognizes overtly how much it in fact does implicitly, almost preconsciously, recognize the power of storytelling. We detect this implicit recognition in the ways that law has been intent, over the centuries, to formalize the conditions of telling, in order to assure that narratives reach those charged with judging them in controlled, rule-governed forms. In modern judicial procedure, stories rarely are told directly, uninterruptedly. They are elicited piecemeal by attorneys intent to shape them to the rules of evidence and procedure, then reformulated in persuasive rhetoric to the listening jurors. The fragmented, contradictious, murky unfolding of narrative in the trial courtroom is subject to formulas by which the law attempts to impose rule on stories, to limit their free play and extent. Should Nicole Simpson's 911 phone call be considered part of the story of her murder? Or is that part of another story which, brought within the sequence ending in homicide, takes on a misleading significance and force? All the "rules of evidence"--including the famous "exclusionary rule," barring illegally seized evidence--touch on the issue of rule-governed storytelling. The judge must know and enforce these rules. And when stories are culled from the trial record and retold on the appellate level, it is in order to evaluate their conformity to the rules. At this level, all narratives become exemplary: they illustrate a point of law, a crucial issue in justice, a symbolic moment in the relations of individual and state. So it is that the law has found certain kinds of narrative problematic and has worried about whether or not they should have been allowed a place at trial--or what place they should have been allowed. Rules governing confessions by criminal suspects--formulated in the well-known Miranda warnings--offer a perennially controversial example. There is also the hotly contested question of victim impact statements used in the sentencing phase of trials on capital offenses.

In a famous paper on the concept of "negation"--or denial--Sigmund Freud writes: "Negation is a way of taking cognizance of what is repressed." In other words, the patient's denial of an explanation or association that arises in analysis does not erase its truth, but rather strikes a line through it, so it is visible under the act and the fact of its negation. In the restatement of Freud's definition by the French analysts Laplanche and Pontalis, negation is "the procedure by which the subject, in the process of formulating one of his hitherto repressed desires, thoughts, feelings, continues to defend himself from it by denying that it is his own." In negation, one could say, what is denied is visible under its erasure. The bar of repression keeps the narrative content and form of the law under erasure, subject to formal rule, visible but unarticulated. Souter in Old Chief does articulate the nature and force of narrative in the law, in a startling move that I have not found in other legal opinions.

Let me try to make this clearer--and to make the stakes of the issue clearer--by way of discussion of a classic torts case from 1928, one that every first-year law student knows by heart. This is Palsgraf v. Long Island Railroad Company (248 N.Y. 339), where the Court of Appeals of the State of New York, in a famous opinion by its chief judge, Benjamin Cardozo, reversed the tort finding against the railroad. I begin with the "facts of the case" as stated by Cardozo himself:

Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact, it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues. (340-41)
Legal commentators for decades clucked admiringly over the laconic clarity of Cardozo's presentation here. More recently, Judge John Noonan has pointed to some of the relevant ancillary facts we don't get, such as the nature of Helen Palsgraf's injuries, her income and family status, the financial resources of the Long Island Railroad, the number of injuries annually resulting from railway accidents, and so forth: facts that would tend to go into a modern torts settlement. But what interests me here is less those other facts than how the admirable concision of Cardozo's narrative of the accident controls that very narrative, limiting its reach as a story, keeping it within well-policed boundaries.

Cardozo, like most judges, only appears to tell the story of the event under adjudication. He recasts the story events so that they make a legal point, rendering it a narrative recognizable in terms of legal principle. He wants to demonstrate that the defendant, in the person of the railway guard, could not reasonably have foreseen the harm to the plaintiff:

The conduct of the defendant's guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. (341)
The alliteration of this sentence gives it a kind of conclusive panache. After running through a brisk series of hypothetical narratives intended to show that "prevision so extravagant" as to include the remote consequences of acts cannot be a basis for a ruling in favor of the plaintiff, Cardozo writes, "Negligence, like risk, is thus a term of relation" (345). It has to do with a relation of a legal duty of care and foreseeable harm, which Cardozo cannot find here. His concise narrative of the incident on the railway platform is an antinarrative in that it seeks precisely to destroy relation, to show that certain linkages of cause and effect are "extravagant."

The eloquent dissent in Palsgraf, by Judge William Andrews, gives a narrative of the incident even more laconic than Cardozo's, which is strange since one would think it in Andrews's interest to elaborate on this story. Instead, Andrews meditates philosophically on kinds of relation established in stories, and he presents us with a series of hypotheticals: a dam with faulty foundations breaks, injuring property far downstream; a boy throws a stone into a pond, and "the water level rises. The history of that pond is altered to all eternity"; "A murder at Sarajevo may be the necessary antecedent to an assassination in London twenty years hence. An overturned lantern may burn all Chicago"; and:

A chauffeur negligently collides with another car which is filled with dynamite, although he could not know it. An explosion follows. A, walking on the sidewalk nearby, is killed. B, sitting in a window of a building opposite, is cut by flying glass. C, likewise sitting in a window a block away, is similarly injured. And a further illustration. A nursemaid, ten blocks away, startled by the noise, involuntarily drops a baby from her arms to the walk. We are told that that C may not recover while A may. As to B, it is a question for court or jury. We will all agree that the baby might not. (353)
In fact, says Andrews, there are no fixed rules to guide us here. "It is all a question of expediency" (354). The best guide he can offer is: "The court must ask itself whether there was a natural and continuous sequence between cause and effect."

What Andrews is getting at is something akin to Souter's "narrative integrity," and the question of what should be included in the story. How far do the Rube Goldberg-like consequences of the dynamite-laden car exploding extend? Where do you declare the story to be over? Without saying so--and again, without unpacking the incident on the railway platform--Andrews seems to point to a problem in the doctrine of "foreseeability" of harm. We know what harm was caused only retrospectively, after it has occurred. Narrative itself is retrospective, its meanings become clear only at the end, and the telling of a story is always structured by anticipation of that end, the "point" of the story, the moment at which its sequences and their significance become clear. It is only in hindsight, retrospectively, that one can establish a "chain of events," in the manner of Sherlock Holmes concluding one of his cases. " 'You reasoned it all out beautifully,' I exclaimed in unfeigned admiration. 'It is so long a chain, and yet every link rings true' "--as Dr. Watson admiringly declares at the end of one of Holmes's stories. In this sense, there are no principles to guide you, there is only the causal and sequential linkage of events, the concrete particulars that narrative alone can convey.

Now, in the tellings and retellings of the Palsgraf story I can find nothing about the narrative particular that seems to me most deeply mysterious and important: those scales that, in Cardozo's account, were "thrown down" by the shock of the explosion, injuring Helen Palsgraf. Where and what were these scales? What did they look like? Were they attached to the wall, or freestanding? How did they become dislodged from their customary position in such a way as to strike Helen Palsgraf? And how did they strike her, and what kind of injuries did they cause? You seek in vain, in both the majority and the dissenting opinions, for any attempt to render this vital moment--the moment of the injury--in the story. Any student in Creative Writing 101 would be sent to rewrite his or her draft for omitting this crucial information. The very clever student might, in detective story fashion, reserve it for the end. One can imagine Holmes and Watson in discussion: "So those scales, you see . . ."

Cardozo once eloquently declared in a speech that as "a system of case law develops, the sordid controversies of the litigants are the stuff out of which great and shining truths will ultimately be shaped." The statement makes very clear the rationale for repressing the sordid story of Mrs. Palsgraf on the railway platform. But surely those great and shining truths in Palsgraf depend intimately on narrative constructions, on "sordid" story details, which the opinions in the case repress even as they recognize their importance. Cardozo and Andrews both recognize that there is a story to be told, and the dissent, in particular, notices that how it is constructed makes a difference.


Excerpted from Law'S Madness by Martha Merrill Umphrey Copyright © 2003 by Martha Merrill Umphrey. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Madness and Law: An Introduction 1
Policing Stories 29
Narrating Nymphomania between Psychiatry and the Law 49
"A Situation So Unique That It Will Probably Never Repeat Itself": Madness, Youth, and Homicide in Twentieth-Century Criminal Jurisprudence 79
The Claims of the Dead: History, Haunted Property, and the Law 119
Rethinking Legal Ideals after Deconstruction 147
Contributors 169
Index 171
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