Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, May 27, 2008

The "Ghost Busters" Will Interface

Christopher J. Buccafusco (student, University of Chicago Law School) has recently posted on SSRN his article entitled Spiritualism and Will(s) in the Age of Contract.

Here is the abstract of his article:

Spiritualism was one of the most salient cultural phenomena of late-nineteenth-century American life. The belief of considerable numbers of respectable citizens that they could communicate with the dead via an entranced medium called into question both popular and scientific conceptions of rationality, volition, and freedom. In turn, these changing ideas about the mind challenged American law's commitment to its belief in free and reasonable legal actors. This Article, the first to consider Spiritualism's implications for American law, examines the legal reaction to the anxieties Spiritualism generated for the age of contract. Principally, it looks at the judicial response to cases of Spiritualists' wills that were challenged on the grounds of insanity and undue influence. In dealing with such cases, I argue, American judges adopted a realist, pragmatic strategy of promoting polyphonic discussion and preserving democratic decision making. Approaching the subject from the perspective of cultural legal history, I suggest that popular culture, science, and the law were mutually constitutive discourses in which nineteenth-century Americans enacted their anxieties about the mind, the will, and the family. Finally, I argue that a contextualized understanding of these nineteenth-century debates can suggest much about current legal debates about rationality, responsibility, and volition engendered by recent discoveries in behavioral economics, the psychology of emotions, and cognitive neuroscience.


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