Therapeutic Jurisprudence in the Appellate Arena: Judicial Notice and the Potential of the Legislative Fact Remand

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

SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 2FALL 2000

Therapeutic Jurisprudence in the Appellate Arena: Judicial Notice and the Potential of the Legislative Fact Remand

A.J. Stephani(fn*)

I. Introduction

Therapeutic jurisprudence, now almost reflexively defined as either the "study of the role of the law as a therapeutic agent" or the "study of the law as a therapeutic agent,"(fn1) has made tremendous strides in its efforts to reach across disparate fields of legal doctrine to elucidate the therapeutic aspects of various tenets of those doctrines. Similarly, the methods used to explicate the therapeutic jurisprudence (TJ) message have benefited from cross-disciplinary cross-pollination, particularly within the social sciences, and from collaboration with other legal analytical methods. However, TJ in the appellate arena remains largely unexplored. This omission is unfortunate, as TJ analysis is perhaps most conducive to policymaking tasks, for which appellate courts are best suited. Accordingly, appellate courts represent an especially fertile and appropriate forum for TJ-inspired advocacy.

This Article begins with a modest objective and ends with an ambitious one. First, it asserts that appellate courts are an appropriate forum for considering the therapeutic impact of the law strand of TJ scholarship. TJ's character as a "field of social inquiry"(fn2) is especially suited to the appellate courts' task of formulating new rules of law and choosing among competing policy objectives when resolving opposing normative principles.

Because TJ faces a peculiar "empirical indeterminacy"(fn3)-the tendency of TJ proponents to rely on social science data requiring "painstaking"(fn4) construction of methodologies to evaluate its hypotheses-TJ's persuasive force remains primarily theoretical and speculative. Accordingly, presenting TJ-inspired analysis through appellate briefs may be the default mechanism for now. However, once increasingly sophisticated empirical research tools are refined or developed, or where such methods currently exist, the most appropriate forum for TJ-inspired advocacy should be the appellate arena.

Empirical research data used to support TJ propositions are properly characterized as one species of "legislative facts"-facts not only relevant to legal reasoning when formulating a legal principle, but to the lawmaking process generally-and are thus susceptible to judicial notice.(fn5) Although considering legislative facts is certainly an appropriate task for trial courts when resolving particular factual controversies, legislative facts are particularly conducive to the appellate courts' task of considering normative values when creating new law.

Finally, this Article suggests that if TJ ultimately embraces an ideological agenda such as the one recently recommended by Professor La Fond,(fn6) the intriguing notion of a legislative fact remand should be considered. Though the mechanism has rarely been used, the notion of a legislative fact remand is hardly novel, and the appellate courts' ability to resolve cases creatively has received increasing attention in recent years. In many cases, remanding to the trial court for the determination of legislative facts creates an opportunity to present empirical data in support of a TJ proposition without misrepresenting its potentially policy-oriented and normative character. Furthermore, the intriguing notion of a legislative fact remand preserves the opportunity to present empirical data to support the consideration of therapeutic values without misrepresenting TJ's potentially policy-oriented and normative character.

ii. distinguishing the two strands of Therapeutic Jurisprudence

TJ recognizes that rules of law, legal procedures, and legal and law-related roles, such as those played by attorneys, judges and other professionals performing quasi-legal functions, produce therapeutic or antitherapeutic consequences for those who come into contact with those rules, procedures, or roles. The TJ heuristic is typically used to draw attention to these consequences and to explore whether their desirable psychological effects may be enhanced or their undesirable effects reduced without disturbing the balance of social policy considerations already engrafted onto those rules, procedures, or roles.

A more holistic, integrative, and transformative approach to legal practice-an approach that perhaps implicitly emphasizes the salubrious effects of the legal profession on its participants' psychological well-being-has been undoubtedly embraced pell-mell by practitioners for decades.(fn7) However, this approach has not had the benefit of either a formalized theoretical framework or the legitimacy that inheres in express ratification by the legal academy. Since TJ's introduction on a broad scale in 1990,(fn8) express and deliberate delineation of the TJ method has animated a great deal of thoughtful scholarship under TJ's imprimatur.

One strand of TJ scholarship focuses on ways in which legal roles, such as those as played by attorneys and judges, and legal procedures, such as sentencing hearings, civil commitment hearings, and mediations, may be ameliorated to increase their therapeutic effects or to minimize their antitherapeutic effects without sacrificing other values actualized within those roles and procedures.

This aspect of TJ, which Professor Wexler once termed "therapeutic legal administration,"(fn9) is made possible through the distillation of form by extracting the substantive elements of legal content. TJ of this character is within what might be termed a "pure method" paradigm, where legal methods, practices, and procedures are sufficiently desiccated from their underlying value-laden objects of regulation and the baggage of social policy concerns to allow for evaluation of the therapeutic effects of their method qua method.

This endeavor, the central object of which is to examine legal method as a therapeutic agent, has made tremendous strides within the forum where theoretical discourse is likely to operate in practice, having forged a symbiotic relationship with the movement known as preventive law.(fn10) The complementary relationship between the two movements emphasizes the role of lawyer-as-counselor, and it acknowledges a perspective of TJ scholarship that is familiar, and perhaps even prosaic, to most practitioners.

This perspective should be contrasted with TJ scholarship that evaluates the therapeutic impact of particular rules of law themselves. The primary focus of that TJ scholarship is to examine law itself as a therapeutic agent. This second strand of TJ scholarship is founded upon the express objective of TJ to inform legal decision-making, on both a legislative and judicial level, of the therapeutic consequences of any particular decision. "The therapeutic jurisprudence approach [argues] . . . that empirical information from the social sciences can inform legal decision-making and should indeed be taken into account in legal decision-making."(fn11) The difference between the two strands of TJ scholarship is not merely semantic; they diverge conceptually with respect to the objects of their inquiry, their catalogues of outcome measures, and, possibly, the perception of TJ by the legal profession.

Unlike TJ scholarship's "therapeutic administration"(fn12) strand, precious little has been written about the mechanisms through which the "therapeutic impact of law" strand may be formally introduced into legal and judicial decision-making processes. The bulk of existing discourse is primarily theoretical, though its proponents have relied on empirical behavioral science research when available. This existing discourse is designed to articulate the specific antitherapeutic effects of particular legal rules, and how legal reform may be achieved by taking those effects into account. If the therapeutic impact of law is to be an important determinant of policy in judicial decision-making processes, the question remains: How should courts, and appellate courts in particular, obtain "evidence" of this therapeutic impact?

III. The Consideration of Therapeutic Values by Appellate Courts

Despite its interdisciplinary focus and heavy reliance on social science data, TJ's "therapeutic impact" strand should be distinguished from fields such as law and psychology and social science in law, which simply offer empirical methods of examining legal rules without connecting those methods to any particular normative agendas.(fn13) It appears settled that "therapeutic impact" embraces an agenda that is more than merely descriptive in character. Rather, TJ offers a prescriptive agenda, arguing that policymakers should incorporate knowledge of the therapeutic consequences of law into their decision-making processes. As stated by Professor Winick,Therapeutic jurisprudence suggests that, other things being equal, positive therapeutic effects are desirable and should generally be a proper aim of law, and that antitherapeutic effects are undesirable and should be avoided or minimized. Because this normative agenda drives therapeutic jurisprudence research, it is not the neutral, value-free mode of scholarly inquiry that law and psychology and social science in law often try to be.(fn14)

Thus far, TJ's prescriptive character has been procedural in nature, limiting its emphasis to specific...