Aspects of Deconstruction: Thought Control in Xanadu

Nearly every case in nearly every legal system is a case where the factfinder—that is, the judge or jury—must decide what was going on in the minds of the litigants. For example, every criminal case turns on mens rea—a guess that the defendant harbored thoughts amounting to criminal intent. Tort cases involve the intention of the defendant, or at least his reckless indifference to risk. Estate cases require the probate court to assess the intent of the testator. Antitrust cases involve the question whether there was an intent to form a combination in restraint of trade. I can\u27t think of a single case where the mental processes of one or both of the litigating parties—whatever the jury says those processes are—doesn\u27t play a critical role in the outcome