The Yale Law Journal

February 2016

Bo Burt: In the Whirlwind of His Own Making

author. Director, Center for Global Communication Studies, Annenberg School for Communication, University of Pennsylvania; Professor of Law, Benjamin N. Cardozo School of Law at Yeshiva University.

Bo Burt was multiple conversations in process, so daring in ideas, so important to so many, so generative of ways of thinking. My vantage point is as a classmate and a friend, fortunate to have interacted with Bo as part of a rich and interesting cohort of (almost entirely) young men augmented by marriages and families. Already ambitious and with dreams of future accomplishment, our class, brought together through chance and skill, would together be reshaped and repositioned through the intense funnel of the Yale Law School. We could not then foresee how our friendships intersecting with major events would affect the arcs of our careers.1

Now we have hindsight, for all it is worth. Even the fiftieth reunion of our law school class, the Class of 1964, is receding into memory. Increasingly, the stories of our classmates have not only beginnings, but ends. We can see how members, Bo included, negotiated political and cultural changes (Bo starting, after law school, with that most engaged of all federal judges, Chief Judge David Bazelon, and staying true to Bazelon-like principles of involvement). Still, we fight to adjust to the abrupt caesura of a man with such staggering vitality and range of ideas, mindful of how much he brought to meaningful realization in his books, articles, lectures, and those many conversations where he would happily guide those of us lucky enough to be his friends.

Given these many contributions, I focus on what those early Yale and post-Yale years might have meant to Bo, and what course they helped to set. Doing so might help us see again the magic in the fact that we were at that Yale Law School, interacting with those faculty and that extraordinary combination of fellow law students. It might refresh our sense of racing up and down those New Haven staircases, from Coke Lounge to the library, working through the night in a decidedly predigital age, always in a cauldron of strong personalities, clanging ideas, and wrestling intellects. We get a glimpse of what it meant that we lunched together and launched together. How did our interactions at 127 Wall Street help forge a path? How did that path turn or pivot with our initial ventures after graduation, like Bo’s with Chief Judge Bazelon and, just afterwards, Senator Joseph Tydings? How did we function as a group, classmates checking in with each other, collaborating, becoming family friends, often being mutually supportive? Surely, those precious years together engendered ideas and vectors traceable in the lives that unfolded.

A convenient starting place, oddly, is Bo’s very last public presentation, preternaturally elegiac, which he gave two weeks before his death. The title was resonant with valedictory, bringing him and us back to our formative student days. The site of his talk was the Sigmund Freud University, the audience scholars of law and mental health, and the subject The Yale School of Law and Psychoanalysis, from 1963 Onward. I like the title especially because he describes an epoch defined as starting when we were students.And I like it because it makes the task of eulogizing easier: Bo was given to elegant, subtle, and satisfying self-eulogy.

“Here we were,” he wrote in his Vienna talk, “in an intimate seminar room with Anna Freud, the founder of the discipline of child psychoanalysis and the daughter of Sigmund Freud, the founder of the entire enterprise of psychoanalysis.” He recounted, somewhat breathlessly, that “[t]his was the beginning for me of a long fascination and engagement with psychoanalytic thought. It was an exhilarating beginning.” Of course, Bo’s suggestion that we were part of an about-to-be significant moment, if not an already historic one, is nicely typical of how we were acculturated at the law school and thereafter, how we were encouraged to think, and of how things were. His talk resonated with a recollected perception: we were persuaded that what we were doing at the Yale Law School was, or would be, thunderingly consequential—though just how and when that might be was shielded from view. Bo captured that tone of expectation in his talk and captured that fulfillment in his life.

Bo recounted how we were witness to Anna Freud’s thinking, as it had evolved in the not quite two decades since World War II. A main feature, Bo recalled, was her concept of “the psychological parent,” which followed from the child’s need—“purportedly according to psychoanalytic thinking,” as Bo gently distilled it—“for a single, physically engaged caretaker.”2

In the seminar, Freud and her colleagues argued “that this concept of ‘the psychological parent’ should trump any claims to child custody by biological parents who had not been physically engaged with the child, especially [during] infancy.” Something about this gnawed at Bo, as it did for many, both in the seminar and later on. Should there be such a conclusive rule? Could it effectively counter other human impulses? Bo’s Vienna talk indicates how nettled he was, in a constructive and creative way, even during the seminar. The talk celebrates how he and fellow students debated these propositions every week, mentions how he organized rump sessions in Max’s (the law school’s then-dining facility), describes how he and his fellows tried to confront their famous instructor, and also notes how puzzled he was at the calm and authoritative way in which Freud tamped down students’ objections upon their return to the seminar room.

Of course, most of us in the seminar left it at this, satisfied with an engaging and interesting course. But the thing about Bo, as we could come to know from his later thinking and writing, was that he saw the largest, most consequential issues in various human interactions. And he cared deeply about them. The 1963 seminar lingered in his mind, engaging him for the rest of his life.

A half century later, he would bring these worries to a dramatic Viennese conclusion. “I tell you this account of our seminar with Anna Freud,” Bo wrote, “because it illustrates one reason that led, soon after 1963, to the precipitate decline of the intellectual influence of psychoanalytic thinking in America.” Linking our Yale experience to something as substantial as the global fate of an intellectual movement might reflect some Yale-centrism, but why not?

More importantly, what it reveals is that Bo’s writings were often scholarship in the grip of autobiography. To make his major point, Bo faulted what he called “our deferential awe and Miss Freud’s self-confidence, even dogmatism, in providing answers to every puzzling question about human behavior. Miss Freud was polite,” he wrote, “attentive, gracious to us—but she also appeared certain that she could understand the psychological functioning of the individuals we studied.” This certainty and claim to definitive authority, which Bo noticed at a young age, would not only be a flaw in the seminar, but a disaster as an approach to psychoanalysis. As he said in Vienna, breaking from his teacher, “The great intellectual contribution of psychoanalysis is not in its certainty, not in its capacity to answer questions about individuals’ psychological functioning, but in its uncertainty, its capacity to see questions, contradictions and complexities that lie beneath the ordinary surface of rational thinking.”

It is an insight into Bo’s life and mind that his talk was a critique of certainty, finality, and authority. His all-encompassing interpretation justified the sweeping title of the remarks. For him, this truly was the story from 1963 onward, “a progression from an authoritarian conception of the analyst’s role, in which he was all-knowing and his patient was expected to defer to his superior scientific pronouncements.” Bo was able to see this progress, grasp its importance, and help us see it, too.

In the end, a bold and illuminating thesis emerged from that seminar and the ensuing history. Bo, of course, puts it best:

Psychoanalysis never provides the basis for imposing final resolution of conflict on anyone. Psychoanalysis can only build from one tentative hypothesis to another. . . . This is the core proposition that I derive from my career-