Last Spring, Alison Winter and I designed and co-taught a course on Human Sciences and the Law for law, graduate, and undergraduate students. Alison is an historian of science (her first book is on mesmerism in Victorian Britain), and her new research focuses on the history of law and psychology in 20th-century America. The course's goal was to provide an introduction to major themes in the field from the Wigmore-Munsterberg debate in 1908-09 to the Scooter Libby trial in 2007.
I'm posting the course syllabus after the break, and I welcome comments. The University of Chicago is on the quarter system, so a number of interesting topics (capital punishment, behavioral law & econ, etc) had to be left out. Our units are similar to those in other courses on the history of law and psychology, but those courses are often arranged thematically. We chose, however, to present the material chronologically hoping to convey a better sense of the historical changes in psychological and legal thinking. Thus, whereas most courses teach Frye and Daubert together, we introduced Frye with American Legal Realism and taught Daubert with imaging technologies.
Human Sciences and the Law Syllabus
This course is a historical exploration of the relationship between the human sciences and the law in America over the past century. Its purpose is to use the tools of social and intellectual history to probe the complex and increasingly entangled relationship between the human sciences (especially psychology, psychiatry, and the neurosciences) with legal practices, processes, and reasoning. The course begins with a famous episode, the exchange between psychologist Hugo Munsterberg, who sought to establish the legal importance of psychological expertise based in laboratory psychology, and John Wigmore, the pre-eminent authority on evidence law in the early twentieth century. Wigmore’s rebuff of Munsterberg (which we shall place in historical context) was an early marker of an increasingly complex, conflicted attitude to the human sciences, marked both by ambivalence about the prospect of psychological expertise in court (particularly in the evaluation of witness testimony), and high hopes as to the possibilities of using the social and psychological sciences to help solve conceptual and pragmatic problems. We will trace the legal fortunes of various projects in the human sciences from 1900 onward: laboratory techniques and forensic psychology in 1900-1920; the attempt to reframe law with respect to early twentieth-century social science; the significance of 1950s psychology (particularly psychoanalysis) for the framing of concepts like volition, the will, and insanity; the yoked histories of interrogation, confession, and understandings of privacy; and the conflicts over various understandings of memory in the postwar period, and particularly in the “memory wars” of the 1980s and 1990s.
Week 1 – March 29 Introduction
Jeffrey Rosen, The Brain on the Stand, NY Times Magazine (2007).
Week 2 – April 5: Psychological expertise on trial
Hugo Munsterberg, On the Witness Stand (1908).
John H. Wigmore, Professor Muensterberg and the Psychology of Testimony, 3 Ill. L. Rev. 399 (1909).
Tal Golan, Laws of man and laws of nature, excerpts
Week 3 – April 12: Law as social science
Roscoe Pound, Mechanical Jurisprudence, 8 Columbia L. Rev. 605 (1908).
Walter Wheeler Cook, Scientific Method and the Law, 13 A.B.A. J. 303 (1927).
Jerome Frank, Law and the Modern Mind (1931).
Underhill Moore, Rational Basis of Legal Institutions, Colum. L. Rev. (1923).
Frye v. United States, 293 F. 1013 (DC Cir. 1923).
Selections from Dewey, Whitehead, and Pearson
Week 4 – April 19: Session on research methods in history of law, science, and medicine
Week 5 – April 26 Mid-century psychology and the Model Penal Code
Selections from the American Law Institute’s Model Penal Code
Herbert Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum. L. Rev. 1425 (1968). see p. 1441 ff.
Lawrence Zelig Freedman, Manfred Guttmacher & Winfred Overholser, Mental Disease or Defect Excludity Responsibility: A Psychiatric View of the ALI MPC, 118 Am. J. Psychiatry 32 (1961).
Lawrence Zelic Freedman & Harold D. Lasswell, Cooperation for Research in Psychiatry and Law, 117 Am. J. Psychiatry 692 (1961).
Manfred S. Guttmacher, Current Trends in Regard to Criminal Responsibility, 117 Am. J. Psychiatry 684 (1961).
Henry Weihofen, Law and the Mentally Ill, 21 Ohio St. L. J. 1 (1960).
Louis H. Swartz, “Mental Disease”: The Groundwork for Legal Analysis and Legislative Action, 111 U. Penn. L. Rev. 389 (1963).
Week 6 – May 3 Confession, interrogation, and the history of Miranda
Miranda v. Arizona, 384 U.S. 486 (1966).
Fred E. Inbau & John E. Reid, Criminal Interrogation & Confessions (1962).
Weeks 7 – May 10 Scientific authority, Scientific expertise, and Scientific Imaging
Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993)
Popper, Conjectures and Refutations (5th ed. 1989)
Neil Feigenson, Brain Imaging and Courtroom Evidence (2006).
Adam Kolber, Pain Detection and the Privacy of Subjective Experience (2007).
Joseph Dumit, Picturing Personhood
Week 8 – May 17 The memory wars
Rock v. Arkansas, 483 U.S. 44 (1987).
People v Shirley (1982).
Bernard L. Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal. L. Rev. 313 (1980).
Tyson v. Tyson, 727 P.2d 226 (Wash. 1986)
Hammer v. Hammer, 418 N.W. 2d 23 (Wis. Ct. of App. 1987)
Denise M. DeRose, Adult Incest Survivors and the Statute of Limitations: The Delayed Discovery Rule and Long-Term Damages, 25 Santa Clara L. Rev. 191 (1985).
Gary M. Ernsdorff & Elizabeth F. Loftus, Let Sleeping Memories Lie? Words of Caution About Tolling the Statute of Limitations in Cases of Memory Repression, 84:1 J. of Crim. L & Criminol. 129 (1993).
Ian Hacking, Rewriting the Soul: multiple personality and the sciences of memory, excerpts.
Week 9 – May 24 The legacy of disputes about psychological expert witnessing: current cases
.S. v. Libby – Judge Walton’s opinion excluding testimony of memory expert Dr. Bjork.
Hearing transcript in U.S. v Libby, Patrick Fitzgerald’s examination of Elizabeth Loftus (Oct 27 2006)).
Richard S. Schmechel, et al., Beyond the Ken?: Testing Juror’s Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics J. 177 (2006).
This class sounds very interesting! Thanks for posting the info.
Posted by: Adam Kolber | 09/10/2007 at 09:12 PM