The Common Law by Oliver Wendell Holmes, Jr.  explains the “Reasonable Person” standard of tort law stating, “The ideal average prudent man, whose equivalent the jury is taken to be in many cases, and whose culpability or innocence is the supposed test, is a constant, and his conduct under given circumstances is theoretically always the same.” Holmes, who has family ties to the Berkshires, was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932. Noted for his long service, his concise and pithy opinions and his deference to the decisions of elected legislatures, he is one of the most widely cited United States Supreme Court justices in history.
Anne Dailey, J.D. , has spent the last three months in the Berkshires as the Erikson Scholar  at Riggs working on a project that argues against some of the ideas that Holmes referrs to in The Common Law. During her time at the Erikson Institute, Dailey has worked on a book on psychoanalysis and law, entitled When Rational Minds Differ: Psychoanalysis, Scientific Psychology, and Law, to be published by Yale University Press. The book presents an historical and theoretical framework for understanding the relationship between law and psychoanalysis.
According to Dailey, current laws and legal policies often operate from the idea that individuals are rational, autonomous actors who consciously intend what they say and do. The legal fiction of rationality, as she calls it, represses the many ways in which individuals do not act rationally. Particularly in criminal law and family law, people frequently behave in ways that conflict with their conscious interests, values, and beliefs.
Psychoanalysis offers legal decision makers the best explanation for why people so often act in irrational ways. Dailey’s book aims to uncover the ways in which a more complex, psychoanalytic portrait of human nature can contribute to the development of laws and policies.