Falling off the Vine: Legal Fictions and the Doctrine of Substituted Judgment

Abstract

The legal fiction used to be a hot topic on the jurisprudential agenda.It was written and talked about passionately by those who wrote and talked about such things in the nineteenth and early twentieth centuries.Then interest in the subject withered and died, and virtually fell off the vine.Why would anyone want to write, or read for that matter, an article about a formerly hot topic?For historical insight perhaps.Subjects that were once intensely debated can reveal the circumstances and concerns of those who went before us; they promote an understanding of an earlier time.But even the historical purist needs to feel that a formerly hot topic has some bearing on how we lead our lives today-or that the insights we gain from its study might matter in the future somehow.I would like to revive the debate on the legal fiction.It is a subject worthy of enduring concern.I came to this conclusion from my study of the history of the doctrine of substituted judgment, which has its origins in the early nineteenth-century law of lunacy.Lord Eldon crafted the legal fiction of "doing that which it is probable the lunatic himself would have done," permitting equity courts to make gifts of the lunatic's surplus income to relatives for t Associate Professor of Law, Touro College Jacob D. Fuchsberg Law Center.I am grateful to the following people for their invaluable assistance in the preparation of this Article: Robin A. Bielski and Wendi K. Waldman for their help with the research; Charles B. wheeler for his help

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