The Appeal of Therapeutic Jurisprudence

JurisdictionUnited States,Federal
CitationVol. 24 No. 01
Publication year2000


The Appeal of Therapeutic Jurisprudence

Shirley S. Abrahamson(fn*)

Therapeutic jurisprudence, a broad and potentially all-encompassing concept, first appeared in mental health law and scholarly literature and has been evolving and growing ever since. According to Professor David Wexler, a leader of the therapeutic jurisprudence movement, therapeutic jurisprudence "tries to eschew doctrinal niceties and symmetries in favor of looking at a problem and trying to develop reasonably workable solutions."(fn1) Therapeutic jurisprudence is, he writes, "centrist"(fn2) and "leads us to probe beneath a rhetoric of rights and to focus instead on needs and interests, all the while seeking a creative convergence or compromise."(fn3) This approach to jurisprudence moves away from the "argument culture" that infuses the adversarial system, in which the culture of critique, opposition, and debate are preferred over a culture of dialogue, cooperation, and other approaches of intellectual inquiry.(fn4)

Therapeutic jurisprudence examines whether the law and legal institutions have healing effects or detrimental effects. Therapeutic jurisprudence proposes reforms that enable the legal system to focus more on problem-solving without sacrificing the rule of law and the principles that our legal system serves, such as predictability and stability.

Therapeutic jurisprudence has, in recent months, come out of the scholarly literature and become part of the everyday judicial lexicon. Therapeutic jurisprudence has also become the subject of various judicial education programs. Chief justices of state courts speak enthusiastically about therapeutic courts, namely federally-funded drug courts.(fn5) The drug courts, labor-intensive and expensive, are characterized as problem-solving and community-oriented courts using interdisciplinary knowledge and diverse professionals. Their goal: to help eradicate drug addiction rather than imprison individuals who are likely to reenter the criminal justice system on release from prison. State court judges are also talking about creating mental health law courts, using the drug courts as models.(fn6)

If therapeutic jurisprudence is so good, its applicability should not be limited to the trial courts. This Article offers some examples of how appellate courts can join the trial courts in applying therapeutic jurisprudence, but it also raises some concerns.

Appellate practice is part of the adversarial system and the "argument culture."(fn7) An appeal pits at least two sides against each other and lets them slug it out in public. Yet appellate courts, like trial courts, are concerned about the inappropriateness of the adversarial system, at least in certain settings.

Appellate judges are becoming more interested in alternatives to the "argument culture"; they are increasingly interested in enabling the parties to create solutions to complex problems in addition to declaring rights and naming winners and losers. Appellate courts are beginning to use mediation to resolve disputes. Ellen Waldman describes mediation as "conflict resolution...

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