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No. 119 (October
/ November 2008) – Mark Satin, Editor
Dear David Wexler,
You should be proud of yourself. For the last two decades, you’ve been spearheading the most exciting movement in contemporary law – “Therapeutic Jurisprudence” (TJ) – and your new anthology, Rehabilitating Lawyers, with its delicious double-entendre, and its spirited exchanges between you and militant defense attorney Mae Quinn, may be your most suggestive yet.
But David, oh David, ever since I discovered your writings in the early 1990s (en route to penning my own early contribution to TJ theory, “Law and Psychology: A Movement Whose Time Has Come,” Annual Survey of American Law, 1994, pp. 580-631), I have wondered about your tendency to downplay the transformative, visionary, paradigm-challenging aspects of TJ.
Yes, you’re a law professor at two universities (Arizona and Puerto Rico) with 13 books and six professional awards to your credit, and you're the founder of the International Network on Therapeutic Jurisprudence, and credibility is undoubtedly important to you. But beyond a certain point, “what will it profit a man if he gains the whole world and forfeits his soul” (Matthew 16:26, NASB translation)?
Two decades ago you denied that TJ is a normative theory, a new way of conceptualizing law and justice. Noooooo, you’ve reiterated, in innumerable law journals since then --all TJ is, is a “lens.” A little add-on. A way of viewing law’s psychological consequences that’s compatible with and ultimately subordinate to the existing legal system. And you’re still saying that; see “Where’s the Backbone?” below.
And so I am writing you this letter to plead with you to please, please stop this charade; drop the fig leaf; demonstrate the courage of your convictions.
Please, for the sake of all of us who sense that the adversary system and its mechanistic processes do more harm than good – for the sake of all of those who (like me) have exited the legal arena because we recognized that the stale smarmy rhetoric about the Wheels of Justice was cover for a jealous profession whose heroic self-image keeps it from seeing the pain it produces in the lives of those it claims to serve – please, use your credibility to help TJ reach its maximum potential, which is:
– to reinvent the very nature of our law-and-justice system;
– to challenge the logic of the adversary system itself;
– to establish that the purpose of the law is NOT to achieve mechanistic, abstract “justice,” but to help heal and illuminate all those whose lives it happens to touch.
You can do it. After all, like it or not, you have already planted the seeds. . . .
What a mouthful! –
but such beauty there
You may have given an eight-syllable moniker to your
movement -- “therapeutic jurisprudence” (TJ for short) -- but you’ve
defined it with admirable simplicity, as you did in this lecture from 1999 (n.b.: ALL
authors & publications are referenced in the RE:SOURCES section below):
TJ is the study of the role of the law as a therapeutic agent. It focuses on the law’s impact on emotional life and on psychological well-being. These are areas that have not received very much attention in the law until now [talk about understatement! – ed.]. . . . Basically, TJ . . . wants us to see whether the law can be made or applied in a therapeutic way. . . .
In a delightful retrospective law review article from
earlier this year (“Two Decades of TJ”), you stress the healing potential
and integral scope of TJ:
[TJ] recognizes that, whether we know it or not, whether we like it or not, the law is a social force with consequences in the psychological domain. [Thus it] examines the role of law as a therapeutic agent and its enormous potential to heal. [And it] looks not merely at the law on the books but rather at the law in action – how the law manifests itself in law offices, client behavior, and courtrooms. . . .
This spring one of your colleagues in Australia, Monash
University law professor Ian Freckelton, tallied up the influence of TJ in
(especially) the U.S., Australia, and Canada, and here is what he found:
In excess of 900 articles have been published on the area of TJ and some 42 books. It has played a major role in the emergence of problem-solving courts, including youth courts, mental health courts, indigenous courts, drug courts, neighborhood justice courts and domestic violence courts. . . . It has influenced thinking on law across an extremely wide range of areas, including mental health law, health law generally, criminal law, civil law, family law, human rights law, disability law, tort law, probate law, labor law, . . . evidence law, . . . regulatory law. . . .
Where’s the backbone?
With such influence, David, why haven’t more of the rest of us even heard of TJ, let alone had an opportunity to discuss its exciting implications and turn it into a political issue and goal, much as preventive-and-holistic health care has been turned into a political issue and goal?
The reason, I’m afraid, is that you and Prof. Freckelton and some other TJ spokespeople have persisted in making dismayingly modest claims for TJ . . . claims that may make it more acceptable to the traditional adversarial and individual-rights-obsessed legal profession, which serves us oh-so-well, but at the heavy cost of muting – even crippling -- TJ’s transformative potential.
Here is how you put it in that retrospective in 2008:
“It is important to note . . . that
TJ does not seek to promote therapeutic goals over other ones.”
Which is virtually exactly what you said in that lecture in 1999: “TJ
does not itself suggest that therapeutic goals should trump other ones. . . .
It is simply a way of looking at the law in a richer way.”
Which is virtually exactly what you were saying earlier that decade:
TJ is no way suggests that therapeutic considerations should trump other considerations. Therapeutic considerations are but one category of important considerations. . . . TJ does not itself purport to resolve the value questions: instead, it sets the stage for their sharp articulation.
Elsewhere you refer to TJ as a mere “lens,” a mere “method.” Not, God help us, a philosophy or ideology or normative theory carrying the seeds of a (gasp) alternate conception of justice.
Your colleague Freckelton takes your lead and runs with
it. In a remarkably squeamish law
review article from earlier this year (“TJ Misunderstood and Misrepresented:
The Price and Risks of Influence”), he says,
It is important to acknowledge that TJ, like any relatively new mode of analysis, from time to time will be evangelized loosely and with uncritical fervor – thereby generating claims it cannot realistically satisfy. . . . It is not a cult, a religion, or a New Age movement. . . . It is not an opportunity for just being a “nice,” “sensitive,” “flexible,” or “new age” decision-maker. . . .
Fortunately, others who are your colleagues and admirers have more vision – or more backbone.
To Judges Peggy Hora and William Schma, TJ is a
full-fledged “legal theory.” To
law professor Susan Daicoff, it’s an indispensable part of a healing new
conception of law and justice. To
Susan Goldberg and the good people at the National Judicial Institute of
Canada, it’s a “theoretical framework” whose implications include moving
David, dear David, these are some of the true implications of your two decades’ worth of TJ work. Don’t you see that? Don’t you on some deep level know that, and doesn’t it make you happy that what you’re doing is laying the foundation for a challenge – the first real, sophisticated, within-the-legal-profession challenge we’ve ever had – to the dominant mechanistic, adversarial, individual-rights-uber-alles, formulaic, impersonal, other-blaming, position-taking U.S. “justice” system that most Americans approach (if they must) with a mixture of loathing and fear?
If you won’t believe me or your visionary colleagues on the inexorable system-transforming implications of TJ, then perhaps you’ll heed your most perceptive critics.
Criminal-defense attorney and University of Tennessee law professor Mae Quinn (who happens to hail from your own legal alma mater, NYU Law, as do I) rather gleefully accuses you of hypocrisy when she states,
Williams College sociologist James Nolan Jr. is less bemused:
The U.S. legal system
doesn’t deserve your fealty!
In the short run, it may make sense for you to downplay TJ’s transformative message. But I implore you to take a longer view.
The U.S. legal profession sees the U.S. legal system (and, by extension, itself) as God’s great gift to Earth – I couldn’t believe the arrogance I experienced there, among liberals and conservatives alike (even a radical like Prof. Quinn, above, is wedded to it) -- and unless prominent lawyers and law professors such as yourself have the gumption to address what’s fundamentally wrong, things will never fundamentally change.
There is a generic critique of the U.S. legal system – courts too slow, lawyers self-serving, judges out of touch, fees exorbitant, jury service oppressive & bewildering, legal outcomes influenced by money & class, etc. That critique is important, and many good lawyers share parts or all of it.
But the critique that TJ can bring (and that some TJ practitioners and supporters are already bringing) is more fundamental. It wouldn’t just twiddle the dials of the U.S. legal system. It would, as Prof. Nolan laments, reinvent law and justice at their cores:
-- The adversary system would be the first pillar to fall. As TJ-oriented law professors Michael King and Arie Freiberg rather delicately note, “An adversarial approach . . . can amplify differences between the parties and fail to address underlying issues.” And as linguist Deborah Tannen notes (in her great “Litigation Is War” chapter in her important book The Argument Culture), the adversary system stirs our proclivities for competition and suppresses our inclinations toward collaboration and compromise. It makes one “yearn for a system of justice that is investigative rather than adversarial.”
-- The winner-take-all logic of the legal system would also go. As Tannen says, winner-take-all requires lawyers “to do all in their power to manipulate facts and distort impressions if necessary to make the best case for their clients.” As a result, it poisons our whole society – e.g., by contributing to the “contempt in which many citizens hold . . . our justice system,” and by causing victims of the justice system to feel that the world is abusive and unsafe and not right.
-- The zealous-advocacy requirement would go, or
would at least be redefined. As
it is now, zealous advocacy often means that lawyers and clients overstate
claims and fail to honestly engage in an attempt to pursue the truth.
In one recent article on TJ, Michigan Judge William Schma excoriates
U.S. law’s propensity for “artifice” and “device” as distinct from
“honest discourse and cooperative truth seeking.”
In a moving speech to the 2006 International Conference on Therapeutic
Jurisprudence, Australia lawyer Nicholas Murfett said,
I believe justice requires the pursuit of truth, to the deepest possible level. However, the current process is in my view two-dimensional, [in that it] sets parties against each other rather than being of a nature which encourages people to cooperatively investigate their disputes. . . .
-- The trial system would go, or at least be rendered unrecognizable. As it is now, says TJ advocate and Stockholm University law professor Christian Diesen, “in a court proceeding, the conflict will be cemented and often aggravated. The material dispute is combined with prestige and fighting spirit. . . . [I]t can be more important to the litigant to cultivate the damages rather than attempt to repair them.”
-- Most litigation would be shown the door –
literally, by TJ judges. It’s
not only that most disputes could be far more deftly dealt with by alternative
dispute resolution (mediation and the like) – my #1 lesson from practicing
law in the 1990s. It’s that
litigation is often what Wayne Martin, Chief Justice of Western Australia (and
a TJ supporter), calls a “superficial manifestation of a deeper underlying
problem.” Listen to Murfett
[Even m]any partnership, shareholder, or director disputes are, in my view, more to do with the anger people have with each other – and [with] pride – than the commercial remedies they seek in their litigation. Often personality issues and a fear of owning up to a mistake are the major reason a dispute leads to litigation. The legal issues in these cases have nothing to do with the deeper issues. At the end of these cases the clients’ underlying fear and behavior which led to the dispute in the first place is not resolved. . . . [T]he underlying emotions and issues [simply must be] addressed in the legal process. The current system does not do this.
-- Rights absolutism would go. In a book that deeply influenced many TJ advocates, Rights Talk: The Impoverishment of Political Discourse, Harvard law professor Mary Ann Glendon argues that we’ve developed an “absolutist formulation” of rights at the expense of compromise and community. She says that our obsession with individual rights promotes unrealistic expectations (all school jungle gyms must guarantee your child’s complete safety), heightens social conflict (youth gangs must be “free” to hang out on your street corner), and inhibits dialogue (one of us must be “right,” so hopefully you lose, pal).
-- A hyperconcern with mechanistic process would go. Judge Schma, for one, regrets the “process binge” that has overtaken the law. Under a TJ regime, Susan Goldberg suggests, formal processes would often give way to informal processes, and “efficient” processes would give way to “effective” processes – that is, processes that were effective in healing the parties and other stakeholders in the dispute.
TJ scholars who share these views (and I suspect you share them too, David) have concluded not only that our legal system is sick, but that it’s making those who run and use the system sick – literally.
Judge Schma speaks of a “jurigenic” effect comparable to the “iatrogenic” effect in medicine: the propensity of doctors and hospitals to make their patients sick. Stockholm University’s Diesen warns of a growing “justice obsession syndrome,” and attorney Murfett details how fear underlies the current system and its problems – fear of “losing” (among lawyers), fear of failing to be “wise” (among judges), and fear of the legal profession and of lack of control (among once and future legal clients).
In this context, it is silly and wasteful and tragic for you to speak obeisantly of TJ as merely one view among many. With Obama about to take office, and with the possibility of once- or twice-in-a-lifetime change in the air, now is the time for all good legal scholars to have the courage of their convictions.
Now is the time for you to claim that TJ should be the DOMINANT legal paradigm.
Now is the time for you to claim that TJ should override traditional laws and processes whenever people’s vital psychological needs are being disserved by such laws and processes.
To paraphrase Justice Oliver Wendell Holmes Jr., the Fourteenth Amendment does not enact the American Bar Association’s Complete Personal Legal Guide.
The TJ vision
I love your work, David. But some of the boldest visions of TJ law and justice can be found in other people’s writings. (Of course, you’ve helped inspire much of it, and you’ve collected some of it in your anthologies. Which is why I think you can still be persuaded to become an advocate for a DOMINANT TJ paradigm. . . .)
For the last two decades, as you well know, over 1,000 specialized courts have sprung up across the U.S. – drug courts, youth courts, community courts, and the like – and most of them are explicitly or implicitly committed to TJ. “[W]e propose to establish TJ as the Drug Treatment Court movement’s jurisprudential foundation,” Judges Peggy Hora and William Schma declared in an influential law review article in 1999.
In fact, many specialized courts –now best known as “problem-solving” courts – have been helping to define TJ just as much as TJ has been helping to define them. It is a reciprocal relationship (what radical activists used to refer to as “praxis”).
Nowhere can this better be seen than in Greg Berman and John Feinblatt’s moving and incendiary book, Good Courts: The Case for Problem-Solving Justice (2005). Berman and Feinblatt are attorneys with the Center for Court Innovation, and they’ve spent years networking among and being of use to problem-solving courts.
In a chapter tellingly entitled “A New Approach to
Justice,” the authors set forth a number of distinguishing characteristics
of such courts. Among them:
Lawyering too would be qualitatively different under a TJ
regime. Law professor Susan
Daicoff (yet another NYU Law grad) – building on the work of Vermont lawyer
and networker Bill van Zyverden – draws some dramatic contrasts between
traditional and TJ lawyering. Among
Perhaps, David, you could encourage the American Bar Association to change its ethics rules -- which are enforceable in court! -- from fostering the former behaviors (e.g., via the “zealous representation” rule) to fostering the latter behaviors. Having read your recent law review article attempting to envision new roles and behaviors for criminal defense attorneys (“TJ and the Rehabilitative Role of the Criminal Defense Lawyer”), I’m sure your heart is with me in this.
Law journals are not without proposals from visionary TJ supporters. Put those proposals together and they add up to a whole new law-and-justice system. Three quick examples:
-- Judge Wayne Martin wants courtroom spaces to become far less formal. He wants many hearings to be held with judges “sitting on the same level as the parties, sometimes at the same table, in an environment which is intended to put parties at their ease and encourage amicable resolution.”
-- Law professors Amy Ronner and Bruce Winick want appellant judges to issue “reasoned response[s]” to appealing parties’ arguments, rather than summary dismissals (as they do now). “When litigants emerge from a legal proceeding with a sense of voice and validation,” Ronner and Winick write, “they are often satisfied with the result – even an adverse result. . . . Satisfaction of [one’s] participatory or dignitary values can engender healing and more effective behavior in the future.”
Perhaps a collection of such articles could constitute your next anthology, David – a collection with a title like Toward a Therapeutic Justice System: The Emerging New Alternative to the Adversary “Justice” System. THAT might prompt the leaders of the Bar, or at least the educated portion of the American public, to sit up and take notice.
Don’t let them bully
A final reason I’m imploring you to have the courage of your (probable) convictions, David, and call for a full-fledged TJ legal regime, is that TJ has attracted just enough attention, now, to come under attack from within the legal profession. And that sort of attack can quickly destroy a movement’s credibility, if it’s not carefully and thoroughly and HONESTLY rebutted.
Maybe until now it was enough for you to claim that TJ is “only” a sort of lens, “only” an additional way of looking at the law that’s in the end deferential to the adversary / mechanistic justice system, and leave it at that (with allies like Prof. Freckelton meanwhile signifying loyalty to the system by condemning “New Age” idealists in the TJ community).
But as this article shows, other authors and attorneys recognized – long before you should have recognized and acknowledged it – that TJ does constitute a plausible (and exciting, and deeply necessary) alternative to the dominant adversary / mechanistic justice system. Therefore, it is threatening to the powers-that-be, and they’ll attempt to destroy TJ despite your best efforts to continue to present it as ultimately deferential.
Consider three recent attacks on TJ in the legal /
academic literature – by a radical (law professor Mae Quinn), a liberal
(“law and society” sociologist James Nolan Jr.), and a conservative (Judge
Arthur Christean of Utah). All
are credible figures in the traditional legal community.
And all are out for blood. Among
them, here are some of the things they say about TJ in the criminal-defense
David, my point is not that these criticisms are valid (though some may indeed be valid given our current laws and rules). My point is that they’re serious criticisms, and that you cannot continue answering them by continuing to pretend that TJ is merely a new wrinkle in the old adversary / mechanistic system. If you continue to accept the assumptions of that system, you’ll lose, and we’ll all lose.
The only way to successfully answer those criticisms – and the many more like them -- is by finally acknowledging that TJ is not in fealty to the traditional law-and-justice system. It is the foundation for a new law-and-justice system, and needs to be defended on the basis of its own new values and priorities.
Two decades ago you began forging the creation of a legal movement that could help Americans heal their often self-inflicted wounds. For years you were able to pretend your movement was non-threatening to the powers that be.
But the critics are on to you now. And, just as important, visionary lawyers and judges and law professors have discovered you. All of us – critics and visionary supporters alike – understand the remarkable transformative potential of TJ.
Please, David, accept responsibility for the implications of your own creation. Please help us promote TJ as an increasingly coherent ALTERNATIVE to the traditional justice system.
Sincerely, -- Mark Satin
The best single source for information on the TJ movement is the International Network on Therapeutic Jurisprudence, founded by Professor Wexler. The best single source for information on TJ-oriented problem-solving courts is the Center for Court Innovation.
For an integrative look at law as a (potentially) healing profession, see Susan Daicoff, “Law as a Healing Profession: The ‘Comprehensive Law Movement,’” paper presented at the 6th International Clinical Conference, UCLA / University of London (2005), or Marjorie Silver, ed., The Affective Assistance of Counsel: Practicing Law as a Healing Profession (Carolina Academic Press, 2007), introduction online HERE.
For the more-or-less standard argument that TJ has its roots in the legal-realism movement from the early part of the last century (Oliver Wendell Holmes Jr., Roscoe Pound, and the like), see part II-B of Peggy Hora et al., “Therapeutic Jurisprudence and the Drug Treatment Court Movement,” Notre Dame Law Review, vol. 74 (1999).
For evidence that the “maternal justice” of Depression-era prison reformer Miriam Van Waters was the real progenitor of TJ, see Estelle Freedman, Maternal Justice: Miriam Van Waters and the Female Reform Tradition (Univ. of Chicago Press, 1996). For evidence that TJ is rooted in the human potential movements of the 1950s-80s, see the Introduction to Marjorie Silver's anthology above (pp. xx-xxiii).
The following materials – all from the last 10 years (except for one chapter from Wexler’s pathbreaking 1,000-page anthology from 1996) – were relied upon for this article. All available Web links have been provided:
Greg Berman and John Feinblatt, Good Courts: The Case for Problem-Solving Justice (New Press, 2005)
Arthur Christean, “Therapeutic Jurisprudence: Embracing a Tainted Ideal,” The Sutherland Institute (January 2002)
Susan Daicoff, “The Role of Therapeutic Jurisprudence within the Comprehensive Law Movement,” Afterword to Stolle et al. below (2000)
Christian Diesen, “The Justice Obsession Syndrome,” Thomas Jefferson Law Review, vol. 30, special TJ issue (2008)
Ian Freckelton, “Therapeutic Jurisprudence Misunderstood and Misrepresented: The Price and Risks of Influence,” Thomas Jefferson Law Review, vol. 30, special TJ issue (2008)
Susan Goldberg and the staff of the National Judicial Institute [of Canada], “Judging for the 21st Century: A Problem-Solving Approach,” National Judicial Institute (2005)
Peggy Hora, William Schma, and John Rosenthal, “Therapeutic Jurisprudence and the Drug Treatment Court Movement,” Notre Dame Law Review, vol. 74 (1999)
Michael King and Arie Freiberg, “Justice Calls for More than One Size Fits All,” The Age [Melbourne daily newspaper] (June 16, 2008)
Wayne Martin, after-dinner speech at the Third International Conference on Therapeutic Jurisprudence, Perth, Australia (June 2006)
Nicholas Murfett, “The Case for a Paradigm Shift in Civil and Commercial Dispute Resolution,” speech at the Third International Conference on Therapeutic Jurisprudence, Perth, Australia (June 2006)
Bruce Neckers, “The Art of the Apology,” Michigan Bar Journal (June 2002)
James Nolan Jr., Reinventing Justice: The American Drug Court Movement (Princeton Univ. Press, 2001)
Mae Quinn, “An RSVP to Professor Wexler’s Warm Therapeutic Jurisprudence Invitation to the Criminal Defense Bar: Unable to Join You, Already (Somewhat Similarly) Engaged,” Boston College Law Review, vol. 48 (2007); also in Wexler, ed., Rehabilitating Lawyers, below (2008)
Amy Ronner and Bruce Winick, “The Per Curiam Affirmance: A Therapeutic Jurisprudence Critique,” Florida Bar Record (Spring 2001); also in Winick and Wexler, eds., below (2003)
William Schma, “Therapeutic Jurisprudence,” Michigan Bar Journal (January 2003)
Dennis Stolle, David Wexler, and Bruce Winick, eds., Practicing Therapeutic Jurisprudence: Law as a Helping Profession (Carolina Academic Press, 2000)
Deborah Tannen, “’Litigation Is War,’” chap. 5 of Tannen, The Argument Culture: Stopping America’s War of Words (Ballantine edition,1999, orig. 1998)
Bill van Zyverden, see International Alliance of Holistic Lawyers
David Wexler, “Justice, Mental Health, and Therapeutic Jurisprudence,” chap. 36 of Wexler and Bruce Winick, eds., Law in a Therapeutic Key (Carolina Academic Press, 1996)
David Wexler, “Not Such a Party Pooper: An Attempt to Accommodate (Many of) Professor Quinn’s Concerns About Therapeutic Jurisprudence Criminal Defense Lawyering,” Boston College Law Review, vol. 48 (2007); also in Wexler, ed., Rehabilitating Lawyers, below (2008)
David Wexler, ed., Rehabilitating Lawyers: Principles of Therapeutic Jurisprudence for Criminal Law Practice (Carolina Academic Press, 2008)
David Wexler, “Therapeutic Jurisprudence: An Overview,” revised version of a public lecture at the Thomas M. Cooley Law School, Grand Rapids, Mich. (orig. October 29, 1999)
David Wexler, “Therapeutic Jurisprudence and the Rehabilitative Role of the Criminal Defense Lawyer,” St. Thomas Law Review, vol. 17 (2005); also in Wexler, ed., Rehabilitating Lawyers, above (2008)
David Wexler, “Two Decades of Therapeutic Jurisprudence,” Touro Law Review, vol. 24 (2008)
Bruce Winick and David Wexler, eds., Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts (Carolina Academic Press, 2003)
Bruce Winick, “Therapeutic Jurisprudence,” personal Web page (retrieved September 18, 2008)
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