"johnny's in the Basement/mixing Up His Medicine"f: Therapeutic Jurisprudence and Clinical Teaching

• Publication year: 2000
• Citation: Vol. 24 No. 01

SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 2FALL 2000

"Johnny's in the Basement/Mixing Up His Medicine"f: Therapeutic Jurisprudence and Clinical Teaching

Keri K. Gould(fn*) Michael L. Perlin(fn*)

I. Introduction

Clinical education has progressed through astonishing permutations during the last two decades.(fn1) Experiential learning,(fn2) the crux of clinical legal pedagogy, was initially the province of practitioners only marginally admitted into the sanctuary of law school education. Now it is seen, albeit grudgingly by many traditionalists, as an important aspect of law school education.(fn3) For those, like us, who envision law school as a "holistic"(fn4) means of bridging the gap between practical substance and methodology and traditional course content, we wish to propose a teaching paradigm that integrates the positive aspects of both educational approaches. This Article attempts to do just that: juxtapose the experiential learning found in clinical courses with the theoretical premises of therapeutic jurisprudence.

Therapeutic jurisprudence (TJ) has been hailed as a means of viewing the law as a potentially therapeutic agent, giving law practitioners the means to explore the extent to which legal roles influence legal process and, conversely, how legal process may affect legal roles.(fn5) The study of legal process should begin at the point in which it is taught and absorbed by law students and new lawyers. One would think, therefore, that legal education-a subject that has been deconstructed from every imaginable perspective over the past decade(fn6)- would be a natural laboratory for TJ inquiries, especially given the universal level of dissatisfaction that law students report.(fn7) Yet, just as there is minimal literature on TJ and the practice of law, there has been, to our knowledge, only a few other applications of TJ to any aspect of legal education.(fn8)

In particular, TJ seems a natural "fit" with clinical legal education. Clinical courses, whether live-client clinics, externships, or simulation courses, tend to focus on ethics, interpersonal communication, and collaboration among students, faculty, and clients under very different circumstances than those found in a traditional law school class. Clinical work is both a more stressful and a more exhilarating educational experience for most students.(fn9) Nowhere else in a law school will students confront first-hand the diversity of a poverty practice,(fn10) be challenged on their reflections of their experiences, and be forced to integrate new doctrine, theory, and practice.(fn11)

This Article has been generated from our experiences as clinical education teachers and TJ scholars. Recently, we combined these two "hats." Michael L. Perlin (MLP) teaches a Mental Disability Litigation Seminar and Workshop and a Seminar in Therapeutic Jurisprudence. Keri K. Gould (KKG) teaches an intensive trial advocacy course, Mental Health Law, and, as the Assistant Dean for Extern-ships, she has created the curriculum for, and taught in, a variety of externship courses. KKG's latest clinical teaching endeavor is a new domestic violence family court litigation clinic. In these courses, each of us has made an effort to specifically incorporate TJ into our teaching philosophy and methodologies, our practice of law, and our critique of other lawyering observed by our students.(fn12)

Our thesis is both simple and modest: therapeutic jurisprudence provides a new and exciting approach to clinical teaching. By incorporating TJ principles in both the classroom and out-of-classroom components of clinic courses, law professors can give students new and important insights into some of the most difficult problems regularly raised in clinical classes and practice settings.

This Article will proceed in three sections. The first section briefly provides some background about TJ and how it has been employed to investigate other areas of the law. Then, the Article discusses some of the important new theoretical developments in clinical legal education, mostly from the "critical lawyering" perspective. Finally, in the last section, the Article illustrates the use of TJ as a paradigm for teaching in the clinical law setting-both to encourage, shape, and inform classroom discussions, and to teach specific lawyering skills. We will conclude with some brief recommendations and suggestions.

Thirty-five years ago, Bob Dylan electrified his fans with the song, Subterranean Homesick Blues (which contains the often-cited line, "You don't need a weatherman to know which way the wind blows").(fn13) The song begins with the lines, "Johnny's in the basement/ Mixing up his medicine."(fn14) This couplet serves as an appropriate epigram for this entire inquiry.

Clinics have traditionally been relegated to "basement" status, both literally and figuratively.(fn15) Other law professors often had only the vaguest idea about what really does go on in clinical education.(fn16) In this article, we contend that the incorporation of TJ into clinical methods can be a tonic(fn17)-for students, for teachers, and ultimately, for case clients. Like Dylan's protagonist, we "mix up the medicine," and offer it to our colleagues as a remedy for much that ails the clinical learning process.

II. Therapeutic Jurisprudence

In the past ten years, the microuniverse of "mental disability law scholars" has turned its attention with increasing frequency to the area of TJ. Therapeutic jurisprudence proponents argue that all legal interactions may have therapeutic or antitherapeutic effects, view the law as a potentially "therapeutic agent,"(fn18) and characterize TJ as a "vehicle for bringing mental health insights into the law's development."(fn19) The aim is to suggest that legal decision-makers explicitly take account of the potential impact that legal judgments may have on an individual's psychological well-being, and in doing so, become more sophisticated about and make better use of the insights and methods of the behavioral sciences.(fn20) Therapeutic jurisprudence also calls for the empirical audit of the law's success or failure in this regard.(fn21)

TJ began as one of the most exciting and controversial contemporary developments in mental disability law, capturing the attention of prominent forensic experts, academic psychologists, psychiatrists, and practitioners.(fn22) It has been the subject of symposia in law reviews,(fn23) special issues in behavioral and "crossover" journals,(fn24) academic workshops,(fn25) and books.(fn26) It has been hailed by its advocates as "a tonic for mental health law,"(fn27) as a discipline "brimming" with "new ideas,"(fn28) and as "provocative and compelling."(fn29) In recent years, TJ scholars have gone far beyond the original mental health framework and staked out compelling territory in other substantive areas.(fn30)

On the other hand, TJ has not escaped criticism. The most pointed commentary has come from John Petrila and, to a lesser extent, from Joel Haycock and Chris Slobogin. Petrila has noted the failure of scholars writing in this area to explicitly incorporate the perspective of both the voluntary and involuntary consumer of mental health services.(fn31) In addition, Haycock has stated, "The success of therapeutic jurisprudence will depend in part on the degree to which it empowers the objects of therapeutic and judicial attention."(fn32) In the face of this criticism, David Wexler has restressed that in his model TJ does not trump civil rights and civil liberties: "Therapeutic jurisprudence in no way supports paternalism, coercion, or a therapeutic state. It in no way suggests that therapeutic considerations should trump other considerations. . . ,"(fn33)

Subsequently, Slobogin described several of the dilemmas he sees in the maturing therapeutic jurisprudence movement: (1) the need to define the term "therapeutic," (2) the seemingly inevitable problems with empirically measuring the therapeutic outcome of a given law or procedure, and (3) the problem of potential outcome indeterminacy in the practices and procedures viewed through the lens of therapeutic jurisprudence.(fn34) Likewise, MLP recently has warned that therapeutic jurisprudence analyses must be undertaken with a full awareness of the impact of sanism and pretextuality on all aspects of the mental disability law system.(fn35)

The early TJ articles, as well as many of the precursors, focused primarily on "typical" mental disability law questions.(fn36) Subsequent pieces applied TJ principles to issues somewhat more collateral (e.g., corrections(fn37) and sexual battery(fn38)). Later articles bridged the gap between mental disability law and traditional legal inquiries (e.g., jury service,(fn39) contracts,(fn40) torts,(fn41) and estate planning(fn42)). Perhaps a tad perversely, we, in a paper co-authored with Debbie Dorfman,(fn43) an attorney now working for the Washington State Office of Protection and Advocacy, took this inquiry full circle by examining, inter alia, the constitutional cases that are the "grandparents" of mental disability law: O'Connor v. Donaldson,(fn44) Wyatt v. Stickney(fn45) and Lessard v. Schmidt.(fn46) This examination was an effort to determine whether the development of the bodies of law that these cases spawned-primarily, the placement of constitutional limitations on the civil commitment process and the right...