The Power of Myth: a Comment on Des Rosiers' Therapeutic Jurisprudence and Appellate Adjudication

• Publication year: 2000

SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 2FALL 2000

The Power of Myth: A Comment on Des Rosiers' Therapeutic Jurisprudence and Appellate Adjudication

Edward A. Dauer(fn*)

Nathalie Des Rosiers' discussion(fn1) of the Canadian Supreme Court's opinion in the Quebec Secession case(fn2) suggests, in a most compelling way, the value of a therapeutic jurisprudence (TJ)(fn3) approach to the unending problem of Quebec's identity in the Canadian federation. In his Introduction to this Symposium, David Wexler applauds the idea and, inspired by Des Rosiers' argument, sees in the Quebec decision the potential for TJ-oriented appellate decision-making more generally. I have no doubt of either the descriptive or the prescriptive accuracy of Professor Des Rosiers' analysis, and little doubt that her implicit prediction will come to pass: that because the court in that case adopted a TJ-like approach (albeit without so identifying it), the underlying problem of Quebec and "The Rest of Canada" was made less corrosive rather than more.(fn4) The more debatable question is whether Wexler's broader hope for TJ can be achieved. In the American legal system, the myths surrounding judicial decision-making may pose significant impediments.(fn5) Courts, we are taught, are confined to the preexisting law, applying it to the conflict as the law itself requires that the conflict be framed.(fn6) This is, in many ways that matter, a belief system that is not conducive to the TJ way.

The difference between passive, legalistic adjudication and the TJ approach, as Des Rosiers describes it, is striking. Even more striking is how closely her view of the latter tracks modern mediation rather than traditional adjudication. Appellate courts, she argues, should be "process-oriented listeners,"(fn7) recognizing the value to each party of an opportunity to explain its view and its position, and reflecting those concerns in an opinion crafted in part as an empathetic "letter to the loser."(fn8) Courts should also appreciate their power to act as facilitators, creating the possibility for ongoing dialogue and negotiation.(fn9) The relationship between the parties should be valued as both a source of joint welfare and as an objective of the adjudication.(fn10) For their part, lawyers may have to relinquish their monopoly on telling the parties' stories,(fn11) allowing the narratives to express more authentically the implicated needs and values. In all, appellate opinions TJ can:legitimiz[e] the [competing] concerns, fram[e] the dispute around a series of hopefully shared values, identify[] the pitfalls of each position, and possibly articulat[e] processes for resolving future disputes. [The court] cannot pretend to have all the answers.(fn12)

I dare say that anyone familiar with the literature of mediation would find the descriptions of that process and of the mediator's role to be remarkably parallel, if not identical to Des Rosiers' desiderata for the courts. To those of us who have made a living distinguishing mediation from adjudication, the problem may be obvious-can such an assignment be formally accepted by the appellate judiciary, or was the Quebec secession case truly unique?

Professor Des Rosiers herself sees the case not as unique, but certainly as one of a kind. She proposes its lessons for application in other matters of a constitutional character, in which the respective roles of majority and minority populations within a single nation are the source of ongoing adjustment, friction, and opportunity. It is difficult to imagine many other lawsuits quite like the Quebec Secession case. The assemblage of a nation from disparate cultures inevitably gives rise to claims of identity, the titles to which can be rooted nowhere so firmly as in the telling of historical narratives, of the importance of distinctiveness, of the promises of its preservation, and, most of all, of the conditions for the consensus from which the legitimacy of a unified or a multicultural state may emerge. This is heady stuff. "Rules" hardly do it justice. Decisions that do not consider the underlying realities will solve only symptoms, making the juridical incisions into fragile scars.

One could imagine other cases where the values of TJ might be the same, and therefore where the temptation to depart from the conventional myths might be irresistible. TJ may be even more irresistible at the appellate level than in the trial courts, for it is at the appellate level that courts, in the guise of deciding individual disputes and legal cases, articulate in public ways the social and political values around which individuals in society find comfort, esteem, and belonging. Examples might include cases on "Official English," same-gender marriage, or the rights of immigrants and aliens. Likewise, cases involving abortion rules call into play not legal questions, but rather competing versions of religious and cultural commitments. These are the things by which peoples define themselves. Although it was a trial-level case, imagine the untoward sense of alienation that the Italian-American community must once have felt with the decision (and the process) in the case of Sacco and Vanzetti.(fn13)

All of this, however, is only to say that appellate court TJ is a good thing, not that it is a likely thing.

To give a concrete setting for advancing the discussion in this somewhat critical direction, I would like to pose a rather different kind of case. This is a dispute that is presently in process in several courts, in several styles of legal dress. It is not constitutional. It is not even necessarily a matter involving national or group-identifying values. But it is, to everyone involved, terribly important.

I will state it starkly, as the plaintiffs in some of these cases would: Should physicians be required to tell their patients that the physicians work within a system that rewards them for withholding medical care?(fn14) In one of its many forms, this problem is now before the United States Supreme Court.(fn15) How should the Court address this issue? May-or can-the Court behave as the process-oriented facilitator Professor Des Rosiers describes...