The instructor for the course is James R. Elkins. My office is located at Rm. 110. My secretary, Karen Feather, is located in Rm. 117. The best way to reach me is by email. My email address is located on the homepage of the course website.

The required texts to purchase for use in the course are: Richard J. Bonnie, et.al., A Case Study in the Insanity Defense: The Trial of John W. Hinckley, Jr. (New York: Foundation Press, 2nd ed., 2000); Willard Gaylin, The Killing of Bonnie Garland (New York: Penguin Books, 1983)(1982); Michael Weissberg, The First Sin of Ross Michael Carlson (New York: Dell Publishing, 1992) [the Weissberg book may be out-of-print, so it is unclear as to whether it will be assigned]

Most of the assigned cases and many of the course readings are web-based. You will also be required to purchase some materials that will be xeroxed for your use.

Further information about the nature, strucuture, and evaluation of the course is provided in a FAQ (Frequently Asked Questions) webpage which accompanies (and is incorporated herewith by reference). (Note: The basis for the determination of the course grade set out in the FAQ differs significantly from the method of evaluation which appeared on this page and on the course web site prior to the first day of class.)

Reflections on the Structure and Strategy of the Course: First, a note about legal education and law practice. Those who set out to be lawyers often find that what they are learning is irrelevant to the practice of law. I know the problem first hand because I teach “perspective” courses ("lawyers and literature"; "narrative jurisprudence"; "lawyers and film"; "practical moral philosophy for lawyers." Many students consider these kind of courses as irrelevant to the real world practice of law. Other students find that getting beyond their traditional courses (even if it means getting outside law) is exactly what they need to do, to see how law works and what kind of lawyer they imagine themselves to be. What we find then, is that students disagree on the relevance of perspective courses. The result is disagreement between those of us looking for all the perspective we can get and those who think perspective a waste of good time.

Law & Psychiatry is a perspective course but of a different sort. In this course we explore the possibility that perspective means practical understanding. The practical understanding I have in mind comes not only from reading judicial opinions but readings that offer insight into what lawyers and judges do when confronted with psychiatrists and clinical psychologists in a legal setting. The perspective of this course comes from reading and talking about lawyers and how they use (and abuse) psychiatric and psychological testimony (and in turn, reading what psychiatrists and clinical psychologists have to say about their encounters with lawyers). In this course, I take perspective to mean the use of psychology and psychiatry in a legal setting. I envision what we do in this course as a kind of translation: moving from what we know about law, to a different “field” and “discipline”--the psychological sciences--and seeing if we can learn the rudiments of language and rhetoric found in a discipline other than our own.

There is nothing esoteric or particularly difficult about the translations we will attempt. We engage in similar acts of translation all the time. We start out with something we know and a language for articulating that understanding. We know something about law, but we find that law is not enough. Law must deal with the problem of abortion, but cannot do so devoid of reference to medicine and science, politics and religion. Law must deal with the mentally disordered person and in doing so seeks an understanding of the behavior of the mentally ill persons by drawing on knowledge from the fields of psychiatry, psychology, counseling, and therapy. We need to know something about these disciplines--these "fields" of human understanding--to make use of the representations of those who practice these disciplines and offer their advice when the law tries to deal with mental illness and the behavior of the mentally ill. The only way, in law, that we can make use of these new bodies of knowledge is to translate them into strategies and languages we can understand. Sometimes our translation is rough and crude, simplistic and reductive. We confront what we don't know with the limited language we bring to the translation and mangle the new learning rather badly. We set out, in Law & Psychiatry, not to master new fields of learning, but to translate in a way that avoids mischievous distortions.

In Law & Psychiatry you are asked to venture out from the traditionally defined legal world (of rules and cases) and learn still another language and way of thinking about human behavior. In law, we often find, to our surprise and dismay, just how complex human behavior can be. One aspect of the complexity is grounded in the fact that law turns out to be only one way of assessing and evaluating human behavior. There are others. Consider for example, anthropology. An anthropologist goes off to do field work. She learns a new language and uses that language to describe a cultural framework for understanding human beings whose behavior is new to her.

In law, we too, sometimes act as anthropologists. We are asked to confront behavior that seems strange, odd, and perverse. We are required, as lawyers, to explore this behavior, describe it to others (as well as to ourselves), and to explain the meaning of this behavior. The behavior in question, in law, can be ordinary and banal (ordinary negligence, everyday greed, theft, fraud), but it can also be behavior of the most alien, foreign, strange, and perverted kind. Confronted with strange behavior lawyers must become anthropologists, learning the language spoken by those who engage in strangeness, and the language of those who purport to be expert in decoding, mapping, and exploring this strange behavior, and then translating the strange to the familiar, psychology to law, interior world of mind, reason, emotion, and imagination to exterior world of social order, legal rules, observable behavior, and responsibility for actions. Lawyers and the legal system must translate acts of strangeness and disorder into an ordered language of legal rules and decisional outcomes, a language used by other lawyers and legal decision-makers in the courts.

In Law & Psychiatry we study language and behavior, whatever its origin, whatever we may personally know of it, because we are in the business of passing judgment on behavior. (In this sense, lawyers and anthropologists part ways. Our friends in anthropology can describe the behavior they find without passing judgment. In law we describe behavior in order to have social and legal judgment passed on the behavior. Anthropologists witness the behavior to describe and understand. We lawyers must do what anthropologists do and do it in a context in which a judge/jury (or some other legal actor) will use our translation to make a decision that affects whether we will be held responsible for our acts. The act of judgment sets law apart from anthropology.

The legal doctrinal areas which we will focus on in Law & Psychiatry include: competence to stand trial, diminished capacity, the insanity defense, battered woman syndrome, and involuntary civil commitment. We will read judicial opinions but use them in a different way--to learn to read and translate the psychiatry presented in the cases. Our focus will be on psychiatric testimony and the role of psychiatrists and psychologists in the legal setting. (There are, of course, other approaches to Law & Psychiatry: e.g., the course could focus on public policy issues. Should the insanity defense be abolished, as in has been in few states? Should the use of psychiatric and psychological testimony be expanded by use of the legal concept of diminished capacity? Should legal decision-makers prevent and avoid the battle of psychiatrists by adopting a system of court-appointed, allegedly“neutral,” psychiatrists? While these questions will be in the background of our discussions, neither the course readings or course discussions will be oriented toward providing explicit guidance in devising appropriate answers to these questions.

One way to think about Law & Psychiatry is that we are learning to be more "clinical" in perspective. In a law practice (which is, in some sense, a clinic), a lawyer is confronted with a variety of problems and must figure out what to do. The client shows up at a law office seeking help to solve a problem--something has gone wrong, or something may go wrong unless preventive action is taken. In the law office, as in a medical clinic, the first question is: What is wrong? To respond, the lawyer/physician needs to make a "diagnosis." In Law & Psychiatry we are always asking: What is wrong? What is wrong with this person with which the law must deal? What is wrong with the law as it goes about trying to "deal with" this person and his behavior? In law, diagnosis is necessary because we lawyers are clinicians.

In Law & Psychiatry our diagnosis turns, frequently, on one of several questions: What kind of mental capacity does this person have (to understanding something, to know what he is doing, to conform his behavior to what the law requires)? Is this person mentally ill or simply bad? If the person is mad--crazy, mentally disordered, mentally incompetent, mentally ill--there may be legal consequences. Or is the person simply bad? If the person is bad rather than mad, we (supposedly) don't need psychiatrists and clinical psychologists to tell us what bad means. We reserve to lay people and law people, the evaluation of bad behavior. If behavior is mad or crazy, American legal jurisprudence dictates that the person be dealt with differently than if she is simply bad (realizing, of course, that bad can itself be quite mystifying).

A note about language: I use terms like madness and craziness, in addition to mental illness to suggest that there is more to the behavior in question than medical notions of illness. We have, historically, used different language to talk about the mad and the bad, and we'll need to pay particular attention to the language we find ourselves using in the course.

Most of us probably know more about the bad than we do about the mad. (Our knowledge is a function of our everyday experience, our culture, and our profession.) In the legal system we are faced with the necessity to acknowledge the mad, and our need for help in understanding it. Our lack of knowledge and our need to understand something about which we know so little has it's own psychological wrinkles (as we will undoubtedly discover in the course of our discussions). (What accounts for the way law and lawyers so frequently skirt the real need for knowledge and then maim and mangle the knowledge they seek out for use?) The law is, as you might suspect, far more secure in the knowledge and resoluteness it reflects in dealing with badness; we are, at times, skating on thin-ice when we attempt to deal with madness.

In Law & Psychiatry, you will be expected to learn something about the discipline, language, and methodology of the various practitioners of the psychological sciences, in particular, psychiatry and clinical psychology. (There are other mental health professionals involved in the legal system and during the course of the semester we will try to talk about the various professionals and how they differ in their psychological orientations.) (Note: I often use the term psychiatry as a shorthand expression to include the various mental health professionals--psychologists, therapists, counselors, psychiatric social workers, and psychoanalysts--that may find their way into the legal system.)

Our "clinical" work in Law & Psychiatry revolves around the question: What is wrong with this person (this behavior)? Is the person bad or mad? Both those who engage in mad and bad behavior end up in the legal system. Our task as lawyers and legalists is to determine for legal, social, political, and ethical reasons, whether and how to distinguish between mad and bad for purposes of the law. Sometimes we are willing to do this without the help of outsiders; at other times, we need all the help we can get.

In clinic, what you try to do, and what you find you must know to do it, is driven by different kinds of problems: (1) What is wrong with this person? (2) How is the law to deal with this behavior? (3) Does psychiatry help us understand the behavior and how to deal with it? What kind of language/discipline/world-view does psychiatry use in its efforts to understand behavior?

Our focus is a dual one: the person and the discipline of psychiatry/psychology used to understand the person. To make effective use of a psychiatrist or to insure that psychiatrists stay within the bounds of their skills and knowledge, you must learn to be clinical (and diagnostically oriented) toward psychiatry as well as to the strange behavior of persons.

In Law & Psychiatry we make psychiatrists, as well as law, the focus of our clinical gaze. Psychiatrists appear in the legal system under the guise of providing “expertise” that will help lawyers, judges, and jurors do their work: Is the defendant mentally competent to stand trial? Is the defendant mentally ill, and mentally ill in a fashion that satisfies the criteria established by law to constitute an insanity defense? Is the individual mentally ill, and dangerous to self and others, so as to invoke the state's statutory procedures to involuntarily civilly commit the person to a mental institution? Are there psychological problems of the parent that have bearing on the child's “best interest” in a child custody dispute? Of what weight and bearing is the plaintiff's psychological trauma in this tort action? In response to each of these “legal” questions we turn to psychiatrists (and other mental health professionals) to “evaluate” (that is, diagnose) individuals so an appropriate legal decision can be made. When psychiatrists appear in the legal setting (as “expert” witnesses) we must explore the basis for their testimony. The only way to do that is to explore the basis for their determination, evaluation, and diagnosis of the individuals mental status which becomes a part of the basis for a legal decision.

One party in litigation asks the law to draw on psychiatric explanations to reach a particular result. In response, the opposing party seeks to refute the implications and conclusions of the psychiatric testimony, by cross-examination of the offered psychiatric testimony, by its own use of psychiatrists who have reached contrary conclusions, or by presentation of lay witnesses to suggest that psychiatric testimony is not conclusive or determinative.

In Law & Psychiatry we will concentrate on the knowledge and strategies necessary to successfully present and refute psychiatric testimony. This concentrated focus on psychiatric testimony means we will be confronted with two questions: (1) What did the prosecution (or plaintiff) seek to have the judge/jurors conclude by the offer of this psychiatric testimony? (2) How can the defense respond to this testimony and the conclusions such testimony would have legal decision-makers reach? These questions turn more on strategy and an understanding of the nature and limits of psychiatric “expertise” than on the employment of legal precedents and statutory rules. While there will be situations in which legal disputes arise about the psychiatric testimony permitted by a particular legal rule or legal doctrine, the more immediate, practical, strategic problem is how to protect and/or how to refute the psychiatric testimony that is permitted (or denied) by the court.

Course Portfolio Writings

In a traditional law school course, you read cases, write up (brief) assigned cases, take notes in class, read outside/unassigned commentary (which you find in student study guides, or law review articles, or legal treatises), talk with the instructor in the course about what you are reading (or how you are being asked to read it). What I have in mind for Law & Psychiatry is something akin to what a student must do in any law school course and that is to take the (mind-numbing) stuff of the course (assigned readings and classroom discussions)(and the readings necessary to organize and explicate assigned readings and classroom commentary) and to translate what you are doing in the course into something you can use. In the traditional case, what you are asked to translate for use is the knowledge you need to take an examination. I ask that you do something of a similar sort, but instead of translating what you learn for the purpose of taking an examination, that you, instead, produce well-articulated statements and commentary of the kind that a lawyer might put to use. You might think of your work here as being a member of an editorial team assembling a manual on law and psychiatry. For this manual, you must produce not the kind of notes you would to prepare for an examination, but in the kind of commentary a lawyer, prosecutor, or psychiatrist might find useful.

You are forewarned that your writings for the course will be inadequate unless you pay attention to the focus, structure, readings, and strategy of the course. One purpose of these portfolio writings is to practice what we practice together in class. Consequently, you are expected to be present for each class. Absences may be grounds for a reduction in grade or a failing grade.

Your writings need not be confined to assigned readings and classroom discussion. It is, basically, as a simple matter of economy of time and energy, that you will focus more on the course readings and classroom discussions. (Some of you may will want to explore significant areas of law and psychiatry that we do not take up in class.) I assume you will find it necessary and worthwhile to turn to outside sources (and subject matters beyond our discussions) to flesh out what we do in class.

I assume that all your writing for the course will reflect thoughtful composition, good grammar, good order and organization, and interesting presentation. (Keep an eye on layout and physical appearance. Remember: You are not writing an instruction manual for a gas grill.) Your writing (here, as elsewhere in life) is subject to all the conventional rules of quality. Some writing reflects care and attention, other writing reflects a kind of thoughtlessness which Zen teaches us is an absence of mindfulness.

You might think about your course writings as an effort to develop and produce a text that someone (you, the firm where you work, the prosecutor's office, a psychiatrist) might actually find useful.