Issue No. 119-a (December 2008) – Mark Satin, Editor

Reinventing the law?:
A multilogue

Our article about reinventing the U.S. legal system via Therapeutic Jurisprudence, “Healing First! Time for the U.S. Justice System to Get Less Mechanistic and More Compassionate” (October / November 2008), generated so many emails that I ended up weaving some of them into this hopefully logically arranged “multilogue” among lawyers, activists, and others.  I hope it helps you think clearly not just about the nature of a TJ-oriented legal regime, but about how to bring one about in our lifetimes. – M.S.

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I. FIRST CUP

Great piece!, and great effort, command of Therapeutic Jurisprudence [TJ] literature (“Healing First! Time for the U.S. Justice System to Get Less Mechanistic and More Compassionate,” October / November 2008)!  I’ve just now sent to our TJ listserv . . . do you belong?:

TJ LISTSERV MESSAGE FROM DAVID B. WEXLER

Mark Satin is the author of a fascinating and influential 2004 book, Radical Middle: The Politics We Need Now, and of the online Radical Middle Newsletter.  His latest issue is all about TJ, urging me, and all of you (and many of you are specifically mentioned there), to fight – and he means REALLY fight – for TJ’s transformative possibilities.

It’s a wonderful call-for-action essay deserving the attention of all of us.  I’m glad there are many diversely talented people in the world, for Mark says and does this better than I ever could!

I am distributing this article to my students tomorrow, and I urge all of you to get this essay into as many hands as possible.

I mean it when I say that there are many talents, and you are better able than I am to do what you just did!  Hope we’ll meet someday, and that you’ll be up for giving a major TJ address at some international meeting, etc.

David Wexler
Founder, International Network on Therapeutic Jurisprudence
Distinguished Research Professor of Law, Rogers College of Law, University of Arizona
Tucson, Ariz.

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II. RIGHT ON!

Good article

Good going Mark!

Clement Bezold, Ph.D.
President, Institute for Alternative Futures
Arlington, Va.

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Thank you so much!  Your work is great.

Amy Ronner
Professor of Law, St. Thomas University School of Law
Miami, Fl.

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I devoured the wonderfully put-together article on our justice system! You write so energetically and it always flows so beautifully; it’s a pleasure just to read it, not even counting the interest of the subject matter.

Edryce Reynolds, Ed.D.
Community activist
Tacoma, Wash.

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Your article on the U.S. judiciary, which you said had become mechanistic, fits in aptly with the condition of the judiciary in India, where I live.  The judiciary's only real task here now is to protect society and nation from chaos -- which is of course impossible if the judiciary is mechanical or lacking in human touch.

Bireshwar Banerjee
Attorney
New Delhi, India

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Therapeutic Jurisprudence is not a topic that as a futurist / cultural psychiatrist I can pretend to have great knowledge about.  But I have facilitated think-tank processes around related law topics, and your article makes a concise and valuable addition to those reflections.  I will pass it around.

Charles Johnston, M.D.
Director, Institute for Creative Development
Seattle, Wash.

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Not just blather

Vancouver’s Downtown Community Court – established just this year – may be exactly the sort of “TJ court” you are imagining.

I’ve visited this Court and can tell you more about it.  There are problems, of course, not so much with the Court, but with the backup it needs to succeed.  A court cannot make up for a lack of detox [facilities], or recovery beds, [or] basic housing.

But it is a humane court, one that works on a reasonable timeline and with a gentleness that can be understood by folk with head injuries, fetal alcohol [syndrome], mental illness.  And with some sense of solutions to the very individual causes of the crimes committed.

Within the community, the Court can (and does) provide unassailable documentation that more housing and more recovery and psychiatric services are needed.

I see the Court as the first hopeful step to preparing creative AND pragmatic solutions to some of society’s toughest problems.

Judy Graves
Housing and homeless advocate
Coordinator, Tenant Assistance Program for the City of Vancouver
Vancouver, B.C., Canada

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Neutral – or normative?

I am a psychologist who became aware of Therapeutic Jurisprudence literature in 1996 (I met David Wexler very briefly at a conference and asked “what’s this thing called TJ”?).  It was the first interesting literature I had read – in my view psychology tediously maintains the status quo.

In 1999 I went to Puerto Rico for six months to audit TJ subjects taught by David and expected that TJ would be radical with a strong civil libertarian base.  However, I learned that it isn’t, and I often use David’s “sets the stage for their sharp articulation” line when describing its stance.  So I was disappointed but accepted it, as I am aware that change agents can wear many masks.

TJ does gets a bit of a drubbing as it is often presented as neutral, indeterminate, or “utterly non-normative” (as your article laments).  On the other hand, it is also occasionally presented as normative (which you might prefer).  But then it is drubbed as unacceptable, mundane, and / or too radical!

From my point of view, TJ needs to decide whether it ought to be normative (a visionary “philosophy”) or not normative (a neutral “theory”).  As a philosophy it can prescribe what the law ought to do (it would become value-laden but lack explanatory power).  As a theory it cannot prescribe anything (but could be used to explain or predict behavior).

In an “under-consideration” article, I’ve argued that TJ needs to take a normative stance in relation to offender rehabilitation.  In a nutshell, I’ve argued that a human rights perspective could underpin TJ to balance community and offender rights.  To do so, TJ needs to declare itself a philosophy rather than a theory.

Astrid Birgden, Ph.D.
Forensic psychologist
Prison director at Corrective Services
Sydney area, Australia

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III. I AM DUBIOUS

I had not heard of – let alone read – this [Therapeutic Jurisprudence literature], and my jurisprudence colleague [here at Rutgers Law-Newark] seems to be baffled.  Without having read the materials, I think there may be some heavy downside to therapy [as an ultimate goal], not the least of which is the skill and sagacity of the coaches.  But I will read. . . .

Saul Mendlovitz
Dag Hammarskjold Professor of Peace and World Order Studies, Rutgers Law School-Newark
Member, Council on Foreign Relations
New York, N.Y.

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IV. IT IS HAPPENING!

Is it happening?

Many Domestic Violence Courts and other specialized problem-solving courts are models of Therapeutic Jurisprudence.  I worked in a DV Court from 1996 through 2002, and as a result I am a big advocate of them, because I think they contribute to reducing recidivism and to healing on all sides – including that of the children.

I saw the parties involved in these cases develop a respect for the court, because they were involved in the process.  Besides the domestic violence victim advocate (me), there was a mental health professional, a local Batterer Intervention Program provider, and a recovery services provider (probation should also be there, if you have formal probation in your area).

The judge used the courtroom as a classroom, swiftly remanding [defendants] or praising behavior.  It was not unusual for offenders to eventually request time in court to share their life improvements, with pride.

Still, despite such breakthroughs, I wonder about U.S. willingness to apply TJ concepts and models.  Are we as slow about it as it seems?

Melinda Shrock
Marriage and Family Therapist Intern, Options Recovery Services
Berkeley, Calif.

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You can see it happening

I am not sure how quickly TJ is spreading.  I do know that some complementary approaches – the Strengths Perspective (from social work), Positive Psychology, and Motivational Interviewing – are significantly influencing the legal profession.

When seen from the criminal justice field (probation & parole), the landscape is definitely changing.  In 1998, at the American Correctional Association’s annual Congress of Corrections, only one workshop out of 122 had a topic complementary to TJ.  In 2007, at the American Probation and Parole Association’s annual gathering, therapeutic work and assisting behavior change was the theme of the keynote address!  It seems to have moved from back seat to front row within a decade.

The recent National Institute of Corrections monograph, “Motivating Offenders To Change: A Guide for Probation & Parole Officers,” also demonstrates the criminal justice field’s remarkable new interest in assisting long-term behavior change (as distinct from focusing solely on compliance and supervision).  I have heard that of all the varied materials published over the years by the NIC, this monograph exhausted its first printing the fastest.  That indicates to me an undeniable groundswell.

I have a book chapter that speaks to a lot of this change in at least the service delivery (probation / parole) part of our field, “The Strengths Perspective in Criminal Justice,” chap. 7 of Dennis Saleebey, ed., The Strengths Perspective in Social Work Practice (2008).

Last but not least, I know that Europe is doing some wonderful work at moving Motivational Interviewing into prison work as well as into community-based services.

Michael D. Clark, M.S.W.
Director, Center for Strengths-Based Strategies
East Lansing area, Mich.

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It is not just happening, it’s winning

Whether called a lens or a philosophy, TJ has already been a critical part of adding compassion and rehabilitation to significant changes in our legal landscape.  The growing number of treatment courts, re-entry courts, etc., the growth in collaborative law, and all Alternative Dispute Resolution practices resonate with TJ.

In many ways, today’s legal practice is not the one you may remember from your brief time in the law.

The adversary system does not dominate today’s practices!  This is a critical point.  Most civil and criminal cases are resolved long before trial.  In most fields of the law, 98% of cases do not go to trial.  The adversary system provides an imperfect safety net, but one that wonderfully separates us from dictatorships or overly paternalistic approaches.

Your attack on the adversary system is the ultimate throwing away of the baby with the bathwater.  There are areas of discovery, depositions, and interrogatories that are still in need of greater civility, but I have seen improvements in even these areas.

The adversary system in the rare trial is not a winner-take-all system.  Jurors compromise and apply common sense.  If you haven’t yet sat on a jury, I hope you’ll someday have that opportunity.

Today most cases settle – often through the use of various mediation processes.  These processes emphasize partnering, curiosity, openness, contribution instead of blame, listening, problem solving, recognizing feelings, and demonstrating empathy.  Much more can be done, but not at the expense of both the adversary system and respect for individual rights.

While I leave it to Judges Hora and Schma to reflect on your references to their work, my reaction is that you have missed the context from which they have advocated TJ.  My impression is that they understand the need for an adversary system while at the same time favoring increased efforts towards healing and rehabilitation.

I believe that an advocate fighting for his client’s due process with compassion can be a healing agent.  The advocates whom I admire – and who most often succeed in the practice of law – practice with vigorous integrity.  I reject your generally negative characterization of lawyers.  Over time, ethical lawyers still rise to the top.

Moreover, there has been a dramatic change in law school offerings.  Nearly 200 law schools now offer an array of courses in mediation, collaborative law, problem-solving courts, counseling, and other topics that emphasize humanizing the law and lawyers.

I love the respect and admiration you show for TJ, but I think David Wexler has it right in emphasizing this as a strong lens but not as a complete alternative to a sometimes flawed but in my opinion noble system.

Martin Reisig
Principal, Martin I. Reisig Mediation Services
Adjunct Professor of Advanced Mediation, University of Detroit Mercy School of Law
Birmingham, Mich.

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V. TOWARD AN APPROPRIATE STRATEGY

Beyond either-or

I rarely find it productive to denigrate one system (e.g., adversarial) while elevating the other (e.g., Therapeutic Jurisprudence).  And I think your article – thought-provoking though it is – comes from a paradigm in which adversarial litigation and compassion could never co-exist.

However, there are situations in which one inexorably leads to the other almost seamlessly, and neither could produce fruitful resolution without the other.  There are also situations in which both co-exist rather peacefully.

Both TJ and adversarialism have negatives as well as positives, and I disagree with the concept that either is “better” to the exclusion of the other.

Susan Asselin-Connolly
Attorney, Asselin-Connolly, LLC: The Family Law Group
New London, Conn.

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Modesty and balance is our best strategy

Thank you for the latest of your thoughtfully provocative commentaries.  You are absolutely right in identifying Therapeutic Jurisprudence as a neglected beacon of understanding and wisdom.

However, you’re going overboard by suggesting that David Wexler has undersold this movement and not shown sufficient backbone in advancing it.  Here’s why:

First, when we can look back at a century of ideologues and demagogues who were absolutely, 100% sure that their idea was the (only) right one, isn’t it refreshing that someone is advancing an intriguing, compelling concept with a note of modesty and even caution?

Your newsletter has been built around the core idea that we should take the best ideas out there, regardless of ideological stripe, to help move society forward.  Explicitly and implicitly, you have been critical of the kind of dogmatism that has fueled extreme movements, including some that had been part of your life.  Against this backdrop, why the friendly harangue towards Wexler for not playing that same game?

Second, isn’t it possible that Wexler and other TJ adherents are correct in suggesting that TJ is only one perspective that should be weighed in developing the institutions and substance of our legal system?  Surely notions of procedural fairness and due process, as well as economic justice and efficiency, must enter the equation as well.

Like you, a light bulb went off for me when I discovered TJ, and I now anticipate it playing an important role in my scholarship and advocacy in the realm of employment law.  But as enthusiastic as I have become about TJ’s transformative potential, I believe it should be only one of several important perspectives used to shape the law of the workplace.  (For a sampling, see my upcoming law review essay, “Human Dignity and American Employment Law.”)

That said, we share the lament over the law’s woefully inadequate recognition of insights from psychology.  I, too, believe that TJ can help to illuminate this void and shift our focus in a much-needed way.  Let’s hope this movement gathers steam with speed and continued integrity.

David Yamada
Professor of Law, Suffolk University Law School
Director, New Workplace Institute
Boston, Mass.

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Let it evolve!

Your article in the form of a letter to David Wexler is certainly a wonderful call to (therapeutic) arms.  But I think there is already great passion in a core group of people for the use of Therapeutic Jurisprudence in legal systems around the world.  For example, I was impressed by the passion for taking a TJ approach by many creative and dedicated professionals who attended the recent Canadian Association of Drug Treatment Courts conference in Ottawa at which I spoke.

My view is that the manner in which TJ has been introduced into legal thinking and practice is, in fact, in harmony with its purpose and with how the law generally evolves.

TJ is wide-ranging in its purpose and application.  It extends to all areas of domestic and international law, and it calls for well-being to be taken into account in the formulation of laws and legal processes as well as in the work of legal actors.  While well-being has been taken into account in some areas of the law, there has been hitherto no systematic application of behavioral science findings concerning well-being in many areas.

The common law generally develops incrementally.  Where there is significant change, it is generally in one area or aspect of the law at a time (such as that brought about by key court decisions such as Marbury v. Madison in constitutional law, Donoghue v. Stevenson in negligence, and Mabo v. Queensland (No. 2) in Australian native title law).  More radical change generally comes via statute or, at its extreme, by revolution.

For change to occur, the legal justice system personnel must be committed to change.  While there are some radical thinkers in the law, generally the profession as a whole is conservative in nature.  It does not generally react positively to calls for radical, wide-ranging change.

Thus far, in its short history, TJ – while being just a “research agenda” (which you lament) – has changed the way that a growing number of judicial officers, lawyers, legal educators, and justice system personnel think about the law and approach their work.

From my time on the bench I have observed this incremental change take place within the magistracy within Australia.  More often than not, magistrates exposed to the benefits of applying TJ in practice – as distinct from being told about how good it is – become committed to applying its principles.

This change in judicial attitude comes from internal motivation and commitment and is likely to be more effective and enduring than radical change attempted to be imposed from the outside.  Happily, this incremental form of progress in the judiciary, legal profession, and justice system is likely to continue.

Incremental change, fed by the experience of therapeutic jurisprudence and research, is likely to be the most effective method of effecting the change that is being sought.  It is also one that is more likely to be able to deal with the side effects that can come with change, and to prevent people from being hurt. Sudden, radical change can be experienced as traumatic.

In addition, for radical change to occur as you proposed, the community attitude must also change.  Adversarialism exists in the mindset of those who come to a lawyer’s office for assistance.  As Deborah Tannen notes in the book of hers you mentioned, adversarialism exists in politics, education, the media, and other areas of the community.

If non-adversarialism is to become the principal response to conflict, and adversarialism the secondary response, then a change in community attitudes must occur.  Again, given the scale of the required change, it is likely only to be effected incrementally.

There is already some good work being done in this area, with more and more schools around the world applying “restorative justice” principles in disciplinary matters and school conflict (rather than taking a punitive approach), and with the use of mediation training programs and mediation competitions in school systems.  Also, restorative justice approaches are increasingly being used in workplace conflict.

Michael S. King
Co-author, Non-Adversarial Justice (forthcoming, 2009)
Senior Lecturer, Monash University Law School, Melbourne, Australia
Former Magistrate, Geraldton Magistrates Court, [State of] Western Australia
Former Staff Attorney, Aboriginal Legal Service of Western Australia

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VI. RESPONSE FROM THE EDITOR

With Prof. David Wexler's anthology Rehabilitating Lawyers (2008), full of concrete suggestions for healing new lawyer roles and legal processes, and his important overview article "Two Decades of Therapeutic Jurisprudence" (Touro Law Review, vol. 24, no. 1, 2008), we can say without qualification that Therapeutic Jurisprudence has arrived.  More than arrived -- it is the most exciting legal movement of our time.

It promises to transform the U.S. legal system from one focused on mechanistic and abstract "justice" to one focused on the healing of everyone that system touches, from plaintiffs and defendants and -- importantly -- their families, to judges, witnesses, jury members, associated social workers and support staff, and (not least of all) the relevant communities.

Nevertheless, I am not surprised that some Therapeutic Jurisprudence practitioners take a more modest view of TJ's role (and their role), and disagree with my call for using TJ to reinvent the U.S. law-and-justice system.

As my article pointed out, virtually all lawyers see the legal system as fundamentally benign and steadily "improving."  It would be difficult for good people to practice law and feel otherwise, and as you can tell from the correspondence above, TJ practitioners are very good people indeed.

The truth is, though, that for well over 100 years, sensitive and caring attorneys have been telling themselves that the legal system is "improving" (see the introduction to Marilyn Silver’s anthology for a history of some of their enthusiasms).  And the truth is also that, in poll after poll, Americans continue to express their dismay at the legal system (for example, according to a just-released Gallup Poll, law is one of the “least well-rated professions for honesty and ethics” – nursing is 84% highly rated, law 18%, advertising 10%; and according to a 2005 Harris Interactive poll, only 33% agree that the legal system provides timely and reliable resolution of disputes, and only 16% trust the legal system to defend them against baseless claims).

We are deeply out of sorts now.  Our society needs healing, and so do nearly all of us individually.  And the adversary system is deeply inimical to healing, because it preserves “us-against-them” as our fundamental stance toward other people and the world.  However much it changes at the margins and however much it may make room for niche practitioners, it will always continue to contribute significantly to our dis-ease.

That is why I believe it is imperative for the U.S. legal system to change at its core, by making the healing of everyone and everything it touches its primary purpose.

That doesn’t mean law’s traditional purposes should be forgotten.  This is a radical-middle newsletter (as distinct from an unblinkingly radical one) for a reason; and anyway, many of law’s traditional purposes – providing a fair hearing, protecting individual rights, ensuring abstract justice, etc. – are often elements of true healing.

But it does mean that the legal system must be made to change so that the Goddess of Justice’s thumb will always ultimately press more heavily on the TJ side of the Scale of Justice than on the more traditional side.  Even individual rights and abstract justice can be destructive of healing when they’re allowed to overwhelm such essential values as community rights and restorative justice.

As soon as possible, therefore, law professionals must be given in effect a new job description.  They must be charged with practicing in such a way that their primary focus is on helping us heal our hearts and minds so we can live together peacefully, and constructively, and hopefully even happily, in our brief time on Earth.

Even the most humanistic lawyers and law professors tend to lose that focus sometimes.  (The law is so many-sided, so delicious!)  But I think the vast majority of the American people would appreciate that focus no end.

TJ literature has already shown what that focus should consist of (see my original article).  TJ theorists and practitioners, please now concentrate on how to implement that focus via deftly formulated changes in professional rules, legal procedures, and substantive law.  And then build an organization to promote those changes, much as Physicians for a National Health Program has done (with regard to single-payer), or Educators for Social Responsibility has done (with regard to bringing conflict resolution into the schools).

TJ theorists and practitioners!  We have a world to reinvent, and you have nothing to lose but your modesty.