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.

• Published date: 01 June 2017
• Date: 01 June 2017
• DOI: http://doi.org/10.1111/lasr.12274

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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.

Reviewed by Sarah Polcz, Stanford Law School, Stanford University

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 debilitat-

ing 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: Conscious-

ness 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 policy-

making, although the connection is not made explicit in the book.

Well-designed laws, today’s behavioral economists argue, ought to

balance respectfor our choices with recognitionof our cognitive limi-

tations. 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 timein L aw andthe 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 the20th 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

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