Therapeutic Jurisprudence in the Appellate Arena

Abstract

Therapeutic Jurisprudence (TJ) is a perspective that focuses on the impact of the law on emotional life and psychological well-being. TJ originated in the field of mental health law but soon developed into a therapeutic lens to look at the law in general. Recently, therapeutic jurisprudence has been moving from the academy to the world of judging and law practice. Most judicial interest has related to trial courts confronting issues of drug abuse and treatment, domestic violence, family law issues and the like. The current essay, however, discusses the potential application of TJ in the appellate arena. The essay serves as an introduction to a symposium where appellate and trial judges, lawyers and law professor ponder the role of TJ in the appellate courts. The introductory essay indicates the potential breadth of a TJ approach in the appellate arena. One such approach would be for courts to develop doctrinal rules that will promote dialogue. Another is for the court to pay particular attention to the language used in its opinion. The essay introduces these issues, and they are then developed further by the other contributions to the symposium.

Full text

THERAPEUTIC
JURISPRUDENCE:
ISSUES,
ANALYSIS,
AND
APPLICATIONS
Introduction
Therapeutic
Jurisprudence
in
the
Appellate
Arena
David
B.
Wexler*
As
part
of
this
Symposium,
the
Seattle
University
Law
Review
is
engaging
in
an
exciting
undertaking:
the
beginning
of
a
dialogue
about
the
use
of
therapeutic
jurisprudence
in
the
appellate
courts.
Therapeutic
jurisprudence
is
a
perspective
that
focuses
on the
impact
of
the
law
on
emotional
life
and
psychological
well-being.'
It
examines
how
the
law-which
consists
of
legal
rules,
legal
procedures,
and
the
behavior
and
roles
of
legal
actors-often
produces
therapeutic
or
antitherapeutic
outcomes.
2
Therapeutic
jurisprudence
originated
within
the
core
content
area
of
mental
health
law.
3
Its
broader
application
was
apparent
virtu-
ally
from
the beginning,
4
and
the approach
quickly
expanded
from
a
*
Lyons
Professor
of
Law
and
Professor
of
Psychology,
The
University
of
Arizona,
and
Professor
of
Law
and
Director,
International
Network
on
Therapeutic
Jurisprudence,
University
of
Puerto
Rico.
The
author
is
best
contacted
via
e-mail
at
<dwexler@compuserve.com>.
1.
See Introduction
to
LAW
IN
A
THERAPEUTIC
KEY:
DEVELOPMENTS
IN
THERAPEUTIC
JURISPRUDENCE
xvii
(David
B.
Wexler
&
Bruce
J.
Winick
eds.,
1996)
[hereinafter
LAW
IN
A
THERAPEUTIC
KEY].
The
website
for
the
International
Network
on
Therapeutic
Jurisprudence,
which
includes
a
cumulative
bibliography,
is
located
at
<http://www.law.arizona.edu/upr-intj>.
2.
See id.
3.
See THERAPEUTIC
JURISPRUDENCE:
THE
LAW
AS
A
THERAPEUTIC
AGENT
(David
B.
Wexler
ed.,
1990).
4.
See
DAVID
B.
WEXLER
& BRUCE
J.
WINICK,
ESSAYS
IN
THERAPEUTIC
JURISPRU-
DENCE
x
(1991).
It
seems
only
natural
(at
least
to
those
of us
who
specialize
in
mental
health
law)
that
initial
forays
into
therapeutic
jurisprudence
took place
within
the
core
content
areas
of
mental
health
law.
Obviously,
however,
therapeutic
jurisprudence
also
has
applications
in foren-
sic
psychiatry
generally,
in
health
law,
in
a
variety
of
allied
legal
fields
(criminal
law,
juvenile
law,
family
law),
and
probably
across
the
entire
legal
spectrum.

Seattle
University
Law
Review
new
perspective
on
mental
health
law
to
a
mental health
or
therapeutic
perspective
on
the
law
in
general.
5
Recently,
the
area
of therapeutic
jurisprudence
has
begun
to
reach beyond
academic
circles
and
into
the
world
of
legal
practice.'
Of
particular
note
has
been
the
increasing
interest
of
the
judiciary,
both
as
consumers
and
as
producers
of
thera-
peutic
jurisprudence
literature and insights!
In
fact,
therapeutic
jurisprudence
was
the
topic
of
the May
2000
midyear meeting
of
the
American
Judges
Association;
the
association
devoted
a
full
issue
of
its
official
journal,
Court
Review,
to
the
topic.
8
To
date,
judicial
interest
has concentrated on
courts
of
first
impres-
sion--drug
treatment
courts,
9
domestic
violence
courts,
1°
criminal
courts,
1
and
juvenile
and
family
courts.
12
Two
pieces
in
Court
Review,
however, raise
the
issue
of
therapeutic
jurisprudence
at
the
appellate
level:
an
article
by
Professor
Nathalie Des
Rosiers
of
the
law
faculty
of
the
University
of
Western
Ontario,
3
and
a
brief
comment
by
Professor
Amy
Ronner,
a
law
professor
and
former
director
of
the
in-house
appellate
clinic
at
St.
Thomas
University
in
Miami, Flor-
ida.
14
Professor
Des
Rosiers
launches
her
article
with
a
discussion
of
the
1998
opinion
of
the
Supreme
Court
of Canada
in
Ref
Re
Secession
of
Quebec.'
5
(Parenthetically,
it
is
interesting
to
note
that
the
discus-
sion
of the
appellate
process
is
actually
sparked
by
a
case
involving
the
Supreme
Court
of
Canada's
original jurisdiction.)
5.
See
LAW
IN
A
THERAPEUTIC
KEY,
supra
note
1,
at
xvii.
6.
See
generally
PRACTICING THERAPEUTIC
JURISPRUDENCE:
LAW
AS
A
HELPING
PROFESSION
(Dennis
P.
Stolle
et
al.
eds.,
2000);
Marc
W.
Patry et
al.,
Better
Legal Counseling
Through
Empirical
Research:
Identifying
Psycholegal
Soft Spots
and
Strategies,
34
CAL.
W.
L.
REV.
439 (1998);
David
B.
Wexler,
The
Development
of
Therapeutic
Jurisprudence:
From
Theory
to
Practice,
68
REVISTA
JURIDICA
U.P.R.
691
(1991);
David
B.
Wexler,
Therapeutic
Jurispru-
dence
and
the
Culture
of
Critique,
10
J.
CONT.
LEGAL
ISSUES
263
(1999).
7.
See,
e.g.,
Hon.
Peggy
Fulton
Hora
et
al.,
Therapeutic
Jurisprudence
and
the
Drug
Treat-
ment
Court
Movement:
Revolutionizing
the
Criminal
Justice
System's
Response
to
Drug
Abuse
and
Crime
in
America,
74
NOTRE
DAME
L.
REV.
439
(1999).
8.
See
CT.
REV.,
Spring
2000,
at
4
et.
seq.
9.
See
WEXLER
&
WINICK,
supra
note
4.
10.
See
Randal
B.
Fritzler
&
Leonore M.J.
Simon,
Creating
a
Domestic
Violence
Court:
Combat
in the
Trenches,
CT.
REV.,
Spring
2000,
at
28;
Betsy
Tsai,
Note,
The
Trend Toward
Spe-
cialized
Domestic
Violence
Courts:
Improvements
on
an
Effective
Innovation,
68
FORDHAM
L.
REV.
1285
(2000).
11.
See
Judge
Robert
J.
Kane, A Sentencing Model
for
the 21st
Century,
in
LAW
IN
A
THERAPEUTIC
KEY,
supra
note
1,
at
203.
12.
See
Hon.
William
J.
O'Neil
&
Hon.
Barry
C.
Schneider,
Recommendations
of
the
Com-
mittee
to
Study Family
Law
Issues
in
the
Arizona
Superior Court:
A Family
Court
System,
37
FAMILY
&
CONCILIATION
CTs.
REV.
179 (1999).
13.
Nathalie
Des
Rosiers,
From
Telling
to
Listening:
A
Therapeutic
Analysis
of
the
Role
of
Courts
in
Minority-Majority
Conflicts,
CT.
REV.,
Spring
2000,
at
54.
14.
Amy
D.
Ronner,
Therapeutic
Jurisprudence
on
Appeal,
CT.
REV.,
Spring
2000,
at
64.
15.
Ref.
Re
Secession
of
Quebec,
2
S.C.R.
217
(1998).
[Vol.
24:217

Therapeutic
Jurisprudence
in
Appellate
Arena
In this
Introduction,
I
will
briefly
summarize
Des
Rosiers'
Court
Review
article,
entitled
From
Telling
to
Listening:
A
Therapeutic
Analy-
sis
of
the
Role
of
Courts
in
Minority-Majority
Conflicts,
6
placing
it
in
a
framework
that
transcends
minority-majority
conflicts
and
encourages
discussion
regarding
the
use
of
therapeutic
jurisprudence
by
appellate
tribunals.
My
brief
summary
is
followed
by
a
series
of
comments
that
have
the
potential
of
launching
a
refreshing
line
of
inquiry
into
the
appellate
process,
opinion
writing,
and
the
formulation
of
legal
doctrine.
I.
Even
though
there
was
no
immediate
plan
for
a
referendum
regarding
the
independence
of
Quebec,
the
Canadian
federal
govern-
ment,
exercising
its
power
to
refer
questions
to
the
Canadian
Supreme
Court,
asked
the
Court
to rule
on
the
constitutionality
of
a
possible
future
unilateral
Quebec
secession.
The
Court
held
that
Quebec
did
not
have
the
right
to
unilaterally
secede,
but
it
nonetheless
stated
that
a
"clear"
majority
vote
in
Quebec
on
a
"clear"
question
favoring
seces-
sion
"would
confer
democratic
legitimacy
on
the
secession
initiative
which
all
of
the
other
participants
in
the
Confederation
would
have
to
recognize."17
Des
Rosiers
notes
that
both
separatists
and
federalists
applauded
the
Supreme
Court
decision."
i
Using
a
therapeutic
jurisprudence
framework,
she
attempts
to
explain
the
favorable
reaction.
Basically,
Des
Rosiers
claims
that
the
members
of
the
Canadian
Supreme
Court
moved
away
from
their
past
stance
as
"tellers
of
the
truth,"
19
becom-
ing
"more
process-oriented
listeners,
translators,
educators,
and,
if
possible,
facilitators."
20
She
notes
the
therapeutic
value
of
process--of
telling
one's
story
and
being
heard-and
of
a
procedure
that
values
the
ongoing,
continuous
relationship
between
the
parties.
2
'
And,
of
course,
she
notes
the
sensitive
use
of
language
by
the court.
22
Finally,
she
commends
the
Canadian
Supreme
Court's
doctrinal
solution-the
imposition
of
an
"obligation
to
negotiate.
2
3
16.
Des
Rosiers,
supra
note
13.
17.
Ref.
Re
Secession
of Quebec,
2
S.C.R.
217
at
150.
18.
See
Des
Rosiers,
supra
note
10,
at
54.
19.
Id.
20.
Id.
21.
Id.
at
57.
See
also
Janet
Weinstein,
And
Never
the
Twain
Shall
Meet:
The
Best
Interests
of
Children
and
the
Adversary
System,
52
U.
MIAMI
L.
REV.
79
(1997)
(examining
the
conven-
tional
legal
paradigm,
its
operation
in
the context
of
child
protection
and
custody
matters).
22.
Des
Rosiers,
supra
note
13,
at
62.
23.
Id.
20001

Seattle
University
Law
Review
II.
In
these
brief
introductory
remarks,
I
cannot
even
attempt
to
capture
the
nuances
and
texture
of
the
case
or
Professor
Des
Rosiers'
analysis.
Those
writings
clearly
deserve
to
be
read
in
full.
Instead,
I
will
race
to
Des
Rosiers'
conclusion,
and,
through
my
own
italics,
try
to
set
the
stage
for
the
commentaries
that
follow:
It
is
true
that
it
is
easier
for
a
court
to
be
"therapeutic"
when
the
case
presented
is
"hypothetical",
as
the
Secession
Reference
was.
However,
there
is
still
a
lesson
to
be
learned
in
the
approach
adopted
by
the
Supreme
Court.
Its
attention
to the
language
it
used
in
order
not
to
create
a
problem
of
legitimacy
for
itself
in
Quebec
has
been
fruitful.
Particularly
welcome
is
the
process-
driven
solution
it
offered,
which
called
for
respect
for
other
minorities
and
defined
the
values
which
had
to
be
taken
into
account.
It
could
be
that
an
inventory
of
process-driven
solutions
ought
to
be
offered
to
courts.
The
imposition
of
an
obligation
to
negotiate,
as
was
done
here,
is
one
example.
The
creation
of
duties
to
con-
sult,
as
was
done
in
the
Aboriginal
context,
may
also
be
of
value.
Several
mechanisms
that
exist
in
other
fields,
the
obligation
to
negotiate
in
good
faith
in
labor
law
or
the
obligation
to
inform
in
tort
law,
for
example,
could
be
explored.
More
must
be
done
in
this
area.
It
could
also
be
that
lawyering
will
have
to
be
done
differently:
if
the
process
is
to
have
the
therapeutic
benefits
argued
for,
it
requires
that
the
"true"
story
be
told,
that
the
groups'
narratives
be
heard.
It
may
require
that
lawyers
relin-
quish
control
of
the
story
told
by
the
group-client.
Again,
the
implications
for lawyers
of
a
judicial
therapeutic
approach
will
have
to
be
examined
further.
2
4
Des
Rosiers'
first
point
is
structural:
she
posits
a
therapeutic
advantage
to
the
"hypothetical"
nature
of
the
case.
2
'
Does
the
ability
to
issue
advisory
opinions
enhance
a
court's
ability
to
create
"thera-
peutic"
doctrines?
Surely,
this
issue
warrants
discussion.
Interest-
ingly,
Des
Rosiers
notes
that
asking
the
unilateral
secession
question
in
the
absence
of
an
immediate
plan
for
another
referendum
was
risky
and
"angered
most
Qub&cois.
' ' 26
Might
a
"reference
power"
judicial
structure
possibly
have
antitherapeutic
pre-decision
consequences
and
therapeutic
post-decision
consequences?
24.
Id.
(emphasis
added).
25.
Seeid.atSS.
26.
Id.
at
54.
[Vol.
24:217

Therapeutic
Jurisprudence
in
Appellate
Arena
Next,
Des
Rosiers
speaks
of
language
use,
and
elsewhere
she
speaks
of
opinion-writing
as
writing
a
"letter
to
the
loser.,
27
If
past
opinions
are
read
through
this
prism,
we
are
likely
to
find
admirable,
abominable,
and
average
illustrations.
It
may
be
useful
to
collect,
classify,
and
use
these
illustrations
in
educational
programs
for
judges,
lawyers,
and
law
students.
Des
Rosiers
is
very
much
taken
with
the
"obligation
to
negoti-
ate"
or,
as
she
terms
it,
the
"process-driven
solution
' 2
1
shaped
by
the
Supreme
Court
of Canada.
In
fact,
she
cites
similar
doctrinal
devices
found
in labor
and
tort
law,
and
makes
the
intriguing
suggestion
that
"an
inventory
of
process-driven
solutions
ought
to
be
offered
to
the
courts."
29
We
should
indeed
seek
to
collect
examples
from
existing
law
(in
various
legal
regimes),
and perhaps
begin
to
propose
still
other
solutions.
In
this
connection,
I
have
long
been impressed with:
the
Warren
Court's
invitation,
apparently
never
accepted
by
policymakers
or
scholars,
to
think
through
the
true
bases
of
Miranda
and
the
line-up
cases.
Recall
that
the
Miranda
Court
required
specific
warnings
and
waivers,
including
advice
regard-
ing
appointed
counsel
during
interrogation,
"unless
other
fully
effective
means
are
devised
to
inform
accused
persons
of
their
right
of
silence
and
to
assure
a
continuous
opportunity
to
exer-
cise
it
....
With
lineups,
the
Court's
right
to counsel
was
not
intended
as
a
"constitutional
straightjacket."
"Legislative
or
other regulations
...
which
eliminate
the
risks
of
abuse
and
unintentional
suggestion
at
lineup
proceedings
and
the
impedi-
ments
to
meaningful
confrontation
at
trial
may
...
remove
the
basis
for
regarding
the
stage
as
'critical.'
3
0
The
United
States
Supreme
Court
accomplished
much
in
Miran-
da
by
not
creating
a
constitutional
straightjacket.
The
Court
took
some
of
the
sting
out
of
its
rulings
by
allowing
critics
to
consider
and
propose
alternative
options
for
satisfying
the
interests
at
stake
and
by
allowing
itself
enough
breathing
space
to
turn
back
and
take
a
differ-
ent
approach
in
the
future
if
its
ruling
did
not
work
well
in
the
real
world.
By
and
large,
dialogue-producing
doctrines
are
likely
to
be help-
ful.
Such
doctrines
may,
in
and
of
themselves,
actually
constitute
the
27.
Id.
at
56.
28.
Id.
at
62.
29.
Id.
30.
David
B.
Wexler,
Justice,
Mental
Health,
and Therapeutic
Jurisprudence,
in
LAW
IN
A
THERAPEUTIC
KEY,
supra note
1,
at
713,
720.
2000]

Seattle
University
Law
Review
corpus
of
an
emerging
therapeutic
and
preventive
law.
3
" In
some
instances,
however,
courts
may
eventually
need
to
call
a
halt
to
endless
and
unproductive
dialogue.
When
might
that
be
the
case?
How
might
it
best
be
accomplished?
Des
Rosiers'
conclusion notes
that,
in
some
instances,
perhaps
"lawyering
will
have
to
be
done differently,"
32
perhaps
by
giving
more
room
to
clients
or
group-clients
to
tell
their
own
stories.
Professor
Amy
Ronner's
Court
Review
article,
Therapeutic Jurisprudence
on
Appeal,
33
a
companion
piece
to
Des
Rosiers',
deals in
part
with
the
potential
therapeutic
impact
of
appellate
attorney/client
interaction.
The
role
of
the
appellate
lawyer
may
be
profitably
viewed
through
the
therapeutic
jurisprudence
lens.
These
are
some
of
the
many
issues
that
can
be
healthy
and
appetizing
food
for
thought
in
a
therapeutic
jurisprudence
appellate
project.
Such
a
project
should,
of
course,
be
ongoing,
but
it
will surely
be
given shape
and
direction
by the
rich
commentary
that
follows.
31.
In
his foreword
to
Lawyering
Through
Life:
The
Origin
of
Preventive
Law,
Professor
Dauer
writes:
Nearly
thirty
years
ago
Hans
Kelsen
(the
founder
of
the
"Pure
Theory
of
Law"
school
of
jurisprudence)
wrote
to
Louis
Brown.
"The
term
'Preventive
Law'
is
in
my opin-
ion
not
correct,"
Kelsen suggested.
"It
is
not
the
law
which
is
preventive,
it
is
the
activity
of
the
professional
lawyer
who
recommends
to his client
an
action
(or
the
abstention
from an
action)
by
which
the
client
may
avoid
legal
effects
not
in
is
inter-
est."
Louis
Brown
devoted
the
next
three
decades-in
his
writing,
in
his
teaching,
in
his
life as
a
professional
lawyer-as
if
proving
the
truth
of
Kelsen's correction.
Edward
Dauer,
Foreword
in
Louis
M.
BROWN,
LAWYERING
THROUGH
LIFE:
THE
ORIGIN
OF PREVENTIVE
LAW
at
xv
(1986).
A
corpus
of
process-oriented
legal
doctrines enables
us
to
begin
considering
whether the
law
itself
may
indeed
sometimes
be
preventive.
The
law
can
surely
be
"preventive"
in
a
therapeutic
jurisprudence
sense-discouraging
stressful,
aggressive
encounters
and
encouraging
harmonious
interactions.
And
to
the extent that
such harmony
reduces
the
likelihood
of
future
legal
conflict
and
resort
to
litigation,
the
law
would
presumably operate
"preventively" even
in the
narrower
(more
legally-tailored)
preventive
law
sense
of
the term.
32.
Des
Rosiers,
supra
note
13,
at
62.
33.
Ronner, supra
note
14,
at
64.
[Vol.
24:217