Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture . By

Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture. By Susanna L. Blumenthal. Cambridge, MA: Harvard University Press, 2016. 400 pp. $45.00 hardcover.Histories of the expansion of American freedom do not dwell upon the potential downside for the newly free. But if there is a downside story to be told, maybe it is that for self-making individuals the highs are higher, and the lows, in particular, are qualitatively different. In post-civil war America, the expansion of freedoms fuelled a surging sense of individual agency. Unexpectedly, however, cases of debilitating anxiety began to appear which doctors had not previously encountered. Irrational behavior and mental unsoundness caused by "too much liberty" were increasingly implicated in business and family legal disputes. The resulting civil capacity litigation is at the center of Susanna Blumenthal's Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture. The book details the struggle of 19th century jurists to reconcile respect and liability for free choices with new scientific perspectives on the frailty of the human mind. This same high level aim, in the last decade has come to the forefront of psychologically informed approaches to policymaking, although the connection is not made explicit in the book. Well-designed laws, today's behavioral economists argue, ought to balance respect for our choices with recognition of our cognitive limitations. Their key strategy is characterized as libertarian paternalism: using law to establish generally beneficial defaults we can opt out of, or otherwise structuring choices to impede but not preclude us from making decisions unlikely to reflect our true preferences. More than a century ago jurists mulled over similar problems when confronted with litigants of uncertain mental soundness. They too converged upon the importance of default legal rules when capacity was at issue. In an important way, then, libertarian paternalism is the modern successor to the civil capacity jurisprudence chronicled in depth for the first time in Law and the Modern Mind.In the Introduction and Part One, Blumenthal sets the scene in the heady, raucous days of rapid capitalist expansion in the second half of the 1800s and turn of the 20th century. Tales of fortunes easily made loomed large in the popular imagination, as did the reality of financial ruin for the many who succumbed to market speculation mania and lost. Cases of mental unsoundness and insanity were on the rise. Social commentators suggested too much freedom was to blame for the seemingly novel mental disturbances of the day. The disorders commonly noted on asylum intake registers included dread of poverty, pecuniary concerns, stock speculations, and the like. To avoid accountability for legal arrangements ranging from contracts to illadvised marriages, an increasing number of civil litigants pleaded insanity. For the courts hearing these cases, there was no ready answer to the question of when mental deficiency ought to allow individuals to escape responsibility for their conduct. Blumenthal recounts the inadequacies of the existing common law rules on capacity and the limits of the judges' preferred methodology of introspection for settling questions of mental soundness. Sanity defied a single definition. The circumstances giving rise to capacity challenges varied too greatly.In this doctrinal vacuum, Blumenthal details the emergence of a new field of inquiry and expertise: medical jurisprudence. Lawyers and doctors worked together with the aim of integrating into the legal system medical advancements in the diagnosis and treatment of unsound minds. Medical jurists believed psychological science could improve upon traditional means of identifying persons who were non compos mentis. Common law rules on insanity and responsibility, they argued, expected too much of human nature. …