Therapeutic jurisprudence and cognitive complexity: an overview.

• Author: Gould, Philip D.

INTRODUCTION

I have no doubt that if the records of the time of ... Hammurabi, could be completely restored, we should learn that in the third millennium before Christ men were complaining about the inefficiency of legal procedure, and ... if any of you are destined in the year 7000 A.D.... to examine and write a monograph ... upon the condition of human law courts, you will be obliged to report ... that mankind still exhibits the same discontentment with its methods of adjusting human differences that you know today. (1) --Judge Learned Hand These words of Judge Learned Hand to the New York City Bar Association resonate with increasing vigor eighty years after they were first delivered. The traditional underpinnings of the American legal system are under constant pressure to produce outcomes consistent with everyday life or "common sense." (2) The system is criticized for failing to incorporate "real world" procedures into legal education and giving slavish devotion to a set of calcified rules that isolate the contact between the litigation participants and the legal system. (3) This perceived gap between legal conclusions and life experience has been partially attributed to a system of legal education that produces professionals prepared primarily for adversarial litigation. (4)

Some lawyers and judges remain untrained, unprepared, or unwilling to deal with litigants' life experiences. Segments of the litigants' lives not directly relevant to the litigation are excluded from consideration. Post-litigation consequences to litigants' lives are similarly omitted. (5) Also neglected are individuals who are not parties to the litigation, but who are of importance to the incident that gave rise to the litigation. (6) Therapeutic jurisprudence attempts to take all of these factors into account.

Among the many ideas that have become deeply rooted in the existing legal system is the view that a court should be a relatively passive decision maker, utilizing existing law found in statutes or case law precedent to fashion an applicable remedy. Courts are specifically discouraged from considering the emotional context of a particular case or the immediate post-decision future of the parties. (7) However, the legal system cannot afford to ignore these considerations.

The idea that the judiciary has a separate and independent role in governance has been, ab initio, part of American jurisprudential fundamentalism. (8) Alexander Hamilton, arguing for the adoption of the Federal Constitution, noted the importance of judicial independence and public support for the legal system:

Considerate men of every description ought to prize whatever will tend to beget [integrity and moderation] in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by that he may be a gainer today. And every man must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence and to introduce in its stead universal distrust and distress. (9) Even the decisional independence of judges--their ability to decide cases free from threats of physical violence, financial ruin, or political pressure, is today severely tested. This is evidenced by incidents involving former New York Federal District Judge Harold Baer, Jr. and former Tennessee Supreme Court Justice Penny White. Baer and White were both driven from their benches because of decisions they made in high profile criminal matters that appeared before their respective courts. (10) Following Justice White's subsequent loss in her retention election, Tennessee Governor Don Sundquist surprisingly remarked, "Should a judge look over his shoulder [in making decisions] about whether they're going to be thrown out of office? I hope so." (11)

Less common are instances of judges leaving the bench because their personal beliefs conflicted with the strictures of the law. After being required to implement a mandatory sentence that conflicted with his conscience, New Mexico Supreme Court Justice Gene Franchini resigned. (12) The contrast between an ideally independent judicial branch and the current reality is significant. Developing methods to bridge this rift concerns modern legal practitioners and judges alike. Therapeutic jurisprudence is one outcome of these efforts.

This article will first examine the beginnings of the therapeutic jurisprudence movement, its extension through various areas of the legal system, and its limitations. Following this discussion, the role of judges in courts embracing therapeutic jurisprudence will be examined. This examination will focus on aspects of cognitive theory developed by William Perry and expanded by Charles Claxton and Patricia Murrell. Finally, the paper will discuss outcomes resulting from the application of educational theories designed to prepare judges to assume their roles.

1. DEVELOPMENT OF THERAPEUTIC JURISPRUDENCE

   Notions of therapeutic jurisprudence originally arose in the mental health law context, focusing on the rights of persons exposed to the civil commitment aspect of legal practice. It gradually expanded to incorporate a therapeutic view of the law. (13) As such, therapeutic jurisprudence has served as a catalyst for interdisciplinary outreach, synthesizing the work of lawyers and judges with that of criminologists, sociologists, psychologists, philosophers, educators, and law professors. (14) The expanded role of legal dispute resolution through the use of problem-solving techniques is one strength of the movement, resulting in an increased number of individuals who possess sufficient skills to engage in the resolution of those disputes. (15)

   The term "therapeutic jurisprudence" is defined as "the study of the role of law as a therapeutic agent, exploring the extent to which substantive rules, legal procedures and the role of judges and lawyers produce therapeutic or anti-therapeutic consequences." (16) Therapeutic jurisprudence recognizes the limitations on existing legal practice, in which over-reliance on stare decisis and the other traditions of normative litigation lead to an unsatisfactory result. Advocates of therapeutic jurisprudence believe that the emotional context of the case is not only real, but important. In order for a satisfying resolution to occur the emotional context must be considered. (17) Failing to take these issues into account leaves only a partial resolution.

   Therefore, the purpose of therapeutic jurisprudence is to augment current rigid legal processes by taking into account the intangible, emotional states of the parties to the litigation. Therapeutic jurisprudence seeks to resolve disputes in a manner that addresses the totality of the parties' needs. (18) The traditional impartiality of the judge is made more complex by the addition of subjective empathy to the tools the judge may employ in fashioning decisions. (19)

   Preventive law, originally a separate theoretical discipline, has allowed both lawyers and judges to put therapeutic principles into practice. (20) By focusing on the needs and interests of the parties, not just their respective rights, the various sides of the controversy are aligned. Using existing legal principles and practices as a beginning point, rather than as an end in itself allows the most comprehensive solution for the needs of all parties to be constructed. (21)

   However, there are limitations on the role that therapeutic jurisprudence can play in dispute resolution. A court's empathy is of little use in the fact-finding process of the litigation. Determining whether parties have met the appropriate burden of proof has significant consequences for the outcome of the case, but has little to do with structuring a therapeutic outcome. (22)

   Sometimes the issues presented in a case are difficult, troubling, far beyond a court's expertise, or so influenced by external forces that the courtroom may be an inappropriate place to resolve the dispute. The Elian Gonzalez case, stripped of its international political features and treated as a case involving the custody of a minor child, is a pertinent example. (23) The Gonzalez case involved a minor's father, the only surviving biological parent, seeking custody from his ex-wife's family following her demise. (24) The court held that a parent's residence in a communist-totalitarian state was not a special circumstance to...