From therapeutic jurisprudence ... to jurisprudent therapy

From TherapeuticJurisprudence . . . toJurisprudent Therapy

Eric Y. Drogin, J.D., Ph.D., A.B.P.P.*

For nearly a decade, ``therapeutic jurisprudence'' (TJ)

has provided a theoretical framework within which legal

rules, legal procedure, and legal roles are analyzed in

terms of their therapeutic, neutral, or antitherapeutic

e�ects. This article proposes ``jurisprudent therapy''

(JT), an extension of the TJ model, as a context for

analyzing mental health science, mental health practice,

and mental health roles in terms of their ``jurisprudent,''

neutral, or `àntijurisprudent'' e�ects. The JT perspective

neither supplants nor supersedes TJ; rather, it mirrors

and augments an established process for interdisciplin-

ary contrast, comparison, and integration. Just as an

empathic and evolving legal system provides psychologi-

cal bene®ts, so does a legally informed and juridically

compatible progression of social science promote princ-

iples of justice and human freedom. Consideration of

these two complementary models in tandem yields an

array of brainstorming devices, to synergistic e�ect, with

heuristic implications for teaching, research, and service

delivery. Copyright # 2000 John Wiley & Sons, Ltd.

INTRODUCTION: A FOUNDATION IN THERAPEUTICJURISPRUDENCE

Professors David B. Wexler and Bruce J. Winick developed TherapeuticJurisprudence (TJ) as ``the study of the role of law as a therapeutic agent.''1

Paving the way for widespread utilization of this innovative focus, they wrote:

Therapeutic Jurisprudence is interdisciplinary, empirical, and international inits orientation. It seeks to sensitize legal policy makers to a frequently ignored

Copyright # 2000 John Wiley & Sons, Ltd.

Behavioral Sciences and the Law

Behav. Sci. Law, 18, 489±498 (2000)

* Correspondence to: Eric Y. Drogin, J.D., Ph.D., A.B.P.P., University of Louisville School ofMedicine, P.O. Box 22576, Louisville, KY 40252-0576, U.S.A.Email address: [email protected]

Dr. Drogin is Associate Clinical Professor of Psychiatry and Behavioral Sciences, University ofLouisville School of Medicine. The author gratefully acknowledges the contributions of Curtis L.Barrett, Ph.D., A.B.P.P. and Sandra A. Garcia, J.D., Ph.D. in reviewing the development of theseconcepts over the course of the past decade.

1 DAVID B. WEXLER & BRUCE H. WINICK, ESSAYS IN THERAPEUTIC JURISPRUDENCE 8 (1991).

aspect of mental health law policy analysisÐthe therapeutic impact of legal rulesand proceduresÐand to serve as a tool to frame a new and useful researchagenda. Ironically, mental health lawÐone of the potentially most inter-disciplinary of legal ®eldsÐhas fallen considerably short of accomplishing itsinterdisciplinary potential.2

Speci®cally, Professors Wexler and Winick asserted that while ``law andpsychology and social science in law . . . are empirically based ways of looking atlaw that often purport to have no normative agenda,'' the TJ approach `ìs norma-tive in its orientation [and] posits that the therapeutic domain is important andought to be understood and somehow factored into legal decision making.''3 TJscholars encourage legal practitioners and policy makers alike to master and thenimplement relevant principles of social science, whenever promulgating or imple-menting new lawsÐor modifying, discarding, or accommodating old ones.4

Occam's razor5 notwithstanding, the best new ideas are not always the simplestor the easiest to understand. Professors Wexler and Winick have o�ered oneparticularly helpful distillation: ``Therapeutic Jurisprudence [examines] the extentto which substantive rules, legal procedures, and the roles of lawyers and judgesproduce therapeutic or antitherapeutic consequences.''6 Professor Wexler alsowrote: `Às I see it, [TJ] can itself be divided into four overlapping areas of inquiry:These involve (1) the role of the law in producing psychological dysfunction, (2)therapeutic aspects of the law, (3) therapeutic aspects of the legal system, and (4)therapeutic aspects of judicial and legal roles.''7

For some, a graphic representation is the most accessible. TJ authors andlecturers have brandished the diagram in Table 1 for years, with occasional minorvariations.8

2 David B. Wexler & Bruce J. Winick, Therapeutic Jurisprudence as a New Approach to Mental HealthLaw Policy Analysis and Research, 45 U. MIAMI L. REV. 979, 981 (1991). These authors have furtheropined that ``[t]ypically, the creative and analytical work in traditional mental health law scholarship hasbeen to determine whether a right recognized elsewhere in the lawÐusually in the area of constitutionalcriminal procedure (or perhaps in disability law)Ðshould be stretched to cover the mental health system. . . This sort of legal development and scholarship surely has its place. It certainly was important in theearly years of modern mental health law. But a nearly exclusive emphasis on this approach is both riskyand, after twenty years, sterile.'' Wexler & Winick, supra note 1, at 4±5.3 Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, 3 PSYCHOL. PUB. POL'Y & L. 184, 188(1997).4 See, e.g., Je�rey A. Klotz et al., Cognitive Restructuring Through Law: A Therapeutic JurisprudenceApproach to Sex O�enders and the Plea Process, 15 U. PUGET SOUND L. REV. 579 (1992); Kathryn E.Maxwell, Preventive Lawyering Strategies to Mitigate the Detrimental E�ects of Clients' Divorces on TheirChildren, 67 U. P. R.L. REV. 137 (1998); Marc Patry et al., Better Legal Counseling Through EmpiricalResearch: Identifying Psycholegal Soft Spots and Strategies, 34 CAL. W. L. REV. 439 (1998); Bruce J.Winick, Competency to Consent to Voluntary Hospitalization: A Therapeutic Jurisprudence Analysis ofZinermon v. Burch, 14 INT'L J. L. & PSYCHIATRY 169 (1991).5 ``William of Occam . . . is remembered for his use of the principle of parsimony, formulated asÒccam's razor,' which enjoined economy in explanation with the axiom, `What can be done with fewer[assumptions] is done in vain with more.'' THE NEW COLUMBIA ENCYCLOPEDIA 2981 (William H. Harris& Judith S. Levey eds., 1975).6 Wexler & Winick, supra note 1, at ix.7 DAVID B. WEXLER, THERAPEUTIC JURISPRUDENCE: THE LAW AS A THERAPEUTIC AGENT 4±5 (1990).8 The earliest version of this diagram referred to ``Substantive Law'' instead of ``Legal Rules,'' with``[t]hanks to Robert F. Schopp for suggesting the diagram.'' Wexler, supra note 7, at 5. A later versionreferred to ``Legal Rule'' and ``Legal Role'' rather than ``Legal Rules'' and ``Legal Roles,'' stillacknowledging Dr. Schopp's role in its development. Wexler & Winick, supra note 1, at 19 (1991).

490 E. Y. Drogin

Copyright # 2000 John Wiley & Sons, Ltd. Behav. Sci. Law, Vol. 18, 489±498 (2000)

In order to enable a direct contextual reference to each cell in this paradigm, theclassic TJ diagram may be embellished as in Table 2.

Here, the focal discipline of Law (L) is separated into three di�erent com-ponents: rules (a), procedure (b), and roles (c). The resulting analysis seeks togauge the positive (�), neutral (0), and/or negative (ÿ) societal mental healthe�ects of each of these three components of Law in a particular context. In otherwords: are laws, their application, and the people who create and enforce themmaking a curative, nurturing, and empowering di�erence in the lives of the peoplethey are intended to serve? If this is achieved, then the sequelae of theseinterventions are ``positive;'' if no signi®cant e�ects can be identi®ed, the resultsare ``neutral;'' and if observed results actually detract from the well-being ofcitizens, these outcomes are characterized as ``negative.''

To cite a contextual example from the extant TJ literature, Professor Wexler hasexamined the prospects for criminalizing failure to take prescribed antipsychoticmedications by applying a ``reckless endangerment'' standard to such conduct.9

Pursuing this proposal legislatively we might rely, inter alia, on the followingassumptions: that such laws improve medication compliance to the bene®t ofpatients and citizenry alike (a�), that the legal mechanisms necessary to enforcethem would not detract from the e�ects of treatment and the patient's regardtherefore (b0), and that the judge's role in applying this standard would evolve inrecognition of therapeutic as well as legal goals, without unduly supplantingmedical judgment in this regard (c0).

As we shall see, the TJ approach is heuristic not only regarding its statedresearch, academic, and professional goals, but also in the development ofcomplementary models that seek to encompass other realms of interdisciplinarytheory and practice.

WHY ``JURISPRUDENT THERAPY?''

TJ is not designed to bend the law to the will of psychiatrists and psychologists;nor do its creators seek to provide an avenue for mental health professionals to

Table 1. Therapeutic Jurisprudence

Legal rules Legal procedure Legal roles

TherapeuticNeutralAntitherapeutic

Table 2. Therapeutic Jurisprudence (Therapeutic Societal E�ects of Law)

Legal rules Legal Procedure Legal Roles

Therapeutic L (a�) L (b�) L (c�)Neutral L (a0) L (b0) L (c0)Antitherapeutic L (aÿ) L (bÿ) L (cÿ)

9 David B. Wexler, Inducing Therapeutic Compliance through the Criminal Law, 14 L. & PSYCHOL. REV.43, 46 (1990).

Jurisprudent therapy 491


pursue self-serving agendas for guild purposes.10 There is no need to develop an`àlternative'' to TJ in order to preserve or defend any political, legal, or philo-sophical doctrine.

This having been acknowledged, Professor Winick himself has characterized TJas adopting `à more narrow focus . . . concerned with a more narrow set ofconsequences'' than traditional interdisciplinary paradigms, specifying that ``[TJ]seeks to apply social science to examine law's impact on the mental and physicalhealth of the people it a�ects.''11 This delineation of scope amounts to a virtualinvitation to adapt, embellish, and extend the original construct.

Given that the TJ model seeks to measure various aspects of the law in terms oftheir ``therapeutic,'' neutral, or `àntitherapeutic'' e�ects, its most obviousaugmentation would be an inversion, whereby di�erent facets of mental healthin a social science context are evaluated for their ``jurisprudent,'' neutral, or`àntijurisprudent'' e�ects. The term ``jurisprudent'' in this context is de®ned interms of legal rights, privileges, and options.12 It complements the TJ focus onin¯uences measured by the mental and physical health of citizens, and is notlimited to issues of ``policy analysis'' alone, given that legal status can constitute aprimary, tangible, and discretely measurable factor in the lives of individuals aswell as classes of persons (see Table 3).

Here, the focal discipline(s) of Mental Health (M) are separated into threedi�erent components: science (a), practice (b), and roles (c). The resulting analysisseeks to gauge the positive (�), neutral (0), and/or negative (ÿ) societal legal e�ectsof each of these three components of Mental Health in a particular context. Inother words: are psychological theories, their clinical and policy-making applica-tions, and the people who develop and provide them making a fair, just, and legallysupportable contribution to the lives of the people they are intended to serve? If so,

Table 3. Jurisprudent Therapy (Jurisprudent Societal E�ects of Mental Health)

Mental healthscience

Mental healthpractice

Mental healthroles

Jurisprudent M (a�) M (b�) M (c�)Neutral M (a0) M (b0) M (c0)Antijurisprudent M (aÿ) M (bÿ) M (cÿ)

10 ``Let us, at the outset, emphasize that therapeutic jurisprudence does not embrace a vision of law, oreven mental health law, as serving exclusively or primarily therapeutic ends. We do not call for a returnto the `therapeutic state,' or extol what Wexler once called `therapeutic justice.' The law serves manyends, and our suggestion that the impact of legal rules and practices on therapeutic values should beanalyzed does not mean that therapeutic values should predominate others. Nor do we suggest that thelaw should assume a deferential posture toward clinical expertise. Many of the issues at the heart ofmental health law are legal, not clinical, in nature.'' Wexler & Winick, supra note 2, at 982.11 Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, 3 PSYCHOL. PUB. POL'Y & L. 184, 187(1997).12 ``Jurisprudence'' has been de®ned as ``[t]he philosophy of law, or the science which treats of theprinciples of positive law and legal relations.'' BLACK'S LAW DICTIONARY 854 (6th ed., 1990). For ahistorical perspective, see also BOUVIER'S LAW DICTIONARY 625 (William Baldwin ed., 1928) (de®ning``jurisprudence'' as ``the science of the law,'' and distinguishing between its `ànalytical,''``comparative,'' `èquity,'' and ``medical'' forms). ``Jurisprudent,'' in its extant adjectival form, refersto being ``skilled in the law.'' WEBSTER'S NEW WORLD DICTIONARY 734 (Victoria Neufeldt ed., 1988).Historically, an expanded de®nition (more consonant with this term's usage in the context of theproposed JT model) has included ``having knowledge of the principles of the law.'' OXFORD ENGLISH

DICTIONARY 1522 (James Murray et al. eds., 1928).

492 E. Y. Drogin


the outcomes are deemed ``positive;'' if no noteworthy e�ects are discerned, theyare seen as ``neutral;'' and if the results run contrary to the letter and/or spirit ofconstitutionally supportable rules, they are labeled as ``negative.''

For example, we might apply a JT analysis to the dubious example of mentalhealth practitioners seeking to provide expert witness testimony regarding personswhom they have already served as psychotherapy clients. There is a growingconsensus that such practice ``constitutes engaging in dual-role relationships andoften leads to bad results for patients, courts, and clinicians.''13 This perspectivecan be expressed and tested in terms of the questionable reliability and/or validityof data obtained in a clinical treatment mode when applied in a forensic context(aÿ), the violation of patient rights when impressions formed in an earlier,undefended context are allowed to contaminate the requisite tabula rasa mindset ofthe forensic evaluator (bÿ), and the undue deference of judges and juries to theclinician in the role of healer and treatment provider when the proper role is that ofan independent examiner (cÿ).

Again, what are analyzed in the JT context are legal (``jurisprudent'') rami®ca-tions of the actions of mental health science, practice, and roles, as opposed tohealth (``therapeutic'') results stemming from the in¯uence of legal rules, legalprocedure, and legal roles. The rationale for this extension of the TJ model is anaugmentation of our options in conceiving, developing, and evaluating those waysin which the e�ects of a living and evolving social institution (e.g., the mentalhealth system) may be viewed in terms of those values prized, championed, andadvanced by another (e.g., the legal system).14

Professors John Monahan and Laurens Walker anticipated the utility of thisdistinction when they developed their concept of ``social authority,''15 recom-mending that courts a�ord social science principles no more nor less deferencethan that accorded common law legal precedent. Not only did the authors recom-mend the expanded nature of judicial review of social science research eventuallyre¯ected in Daubert v. Merrell Dow Pharmaceuticals, Inc.;16 they also predicted,consistent with goals one could ascribe to a JT analytical perspective, that ``the[social science] material that is used will be of much higher quality.''17

13 Stuart A. Greenberg & Daniel W. Shuman, Irreconcilable Con¯ict Between Therapeutic and ForensicRoles, 28 PROF. PSYCHOL. RES. & PRAC. 50, 50 (1997). ``Forensic psychologists recognize that their . . .personal and professional relationships with parties to a legal proceeding may interfere with their abilityto practice competently,'' Committee on Ethical Guidelines for Forensic Psychologists, SpecialtyGuidelines for Forensic Psychologists, 15 LAW & HUM. BEHAV. 655, 658 (1991). `À prior professionalrelationship with a party does not preclude psychologists from testifying as fact witnesses or fromtestifying to their services to the extent permitted by applicable law.'' American PsychologicalAssociation, Ethical Principles of Psychologists and Code of Conduct, 47 AM. PSYCHOLOGIST 1597, 1610(1992). This does not address, however, the role of the `èxpert'' as imposed to the ``fact'' witness. `Ìnmost circumstances, psychologists avoid performing multiple and potentially con¯icting roles in forensicmatters.'' Id. See also Mary M. Hornsby et al., The Clinician±Expert Identity Crisis: There's Such aThing as Being Too Helpful, 37 KY. PSYCHOLOGIST 8 (1997).14 Other dual-disciplinary comparisons could bene®t from the same treatment, e.g., chemistry andbiology; music composition and physics; and law and theology: how might legal rules, procedure, and/orroles produce societal e�ects viewed from a particular religious perspective as ``virtuous,'' ``neutral,'' or``sinful?''15 See John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and EstablishingSocial Science in Law, 134 U. PA. L. REV. 477 (1986).16 509 U.S. 579 (1993). See GARY B. MELTON ETAL., PSYCHOLOGICAL EVALUATIONS FOR THE COURTS 20±3 (2d ed., 1997) for an in-depth treatment of this expanded gatekeeping function for federal judges.17 Monahan & Walker, supra note 15.



Further development of a JT method of analysis may be particularly useful inexpanding the practical scope of current dual-degree graduate training in law andpsychology. For example, an increasing focus on ways in which the mental healthscience, practice and roles may be held to applicable legal standards is likely toprovide fresh encouragement and stimulation to the student who wishes to practicemore as a scienti®cally informed lawyer than as a legally savvy expert witness orother forensic clinician.18 Functioning in this mode, individuals identifyingprimarily with the attorney role could accomplish for the law (via pointed cross-examination, issue-speci®c trial consultation, and focused clinical legal teaching)what forensic psychologists with legal educations have achieved for the advance-ment of social scienti®c principles in the courts (by virtue of e�ective testimony,greater precision and concision in evaluations, and contributions to the profes-sional literature). To some extent, such lawyers would raise the standard of forensicpractice by their mere presence in cases where psychiatric or psychologicalevidence is to be pro�ered.

The notion of essential balance recommended in the training and professionalacculturation of dual-degree researchers and practitioners may be brought to bearin another context as well: that of the current TJ de®nition of ``psycholegalsoftspots'' as `àreas where legal intervention or procedures may not lead to alawsuit or to legal vulnerability, but may lead to anxiety, distress, depression, hardand hurt feelings, etc.''19 Expanding this concept to accommodate the JTperspective as well, we would include the notion of `àreas where psychologicalor psychiatric treatment may not fail to meet acknowledged clinical standards, butmay lead to loss of previous rights, diminished legal status, limited ¯exibility inadversary proceedings, imputation of increased liability or responsibility, etc.''

INTRADISCIPLINARY ASSESSMENT AND THEJUXTAPOSITION OF COMPONENTS AND EFFECTS

When examining components of two disciplines, each in terms of e�ects morecommonly associated with the other discipline, it is inevitable that we wouldeventually return to perform an internal assessment of those e�ects in their tradi-tional context. Such retrenchment allows us to check assumptions, reconnect with(and re-evaluate) established doctrines, and develop fresh ideas for interdisciplin-ary analysis. Revisiting core aspects of the Law, we ®nd Table 4.

Here, the focal discipline of Law (L) remains separated into three di�erentcomponents: rules (A), procedure (B), and roles (C).20 The resulting analysis seeksto gauge the positive (�), neutral (0), and/or negative (ÿ) societal legal e�ects ofeach of these three components of Law in a particular context.

18 ``Within the broad spectrum that encompasses law and psychology, relatively little attention has beenpaid to nonclinical or social science training at the graduate level.'' Donald N. Berso� et al., Training inLaw and Psychology: Models From the Villanova Conference, 52 AM. PSYCHOLOGIST 1301, 1304 (1997).Training of lawyers, in particular, is but one of an array of acknowledged current foci including ``policydevelopment, analysis, and evaluation,'' `àssessment of court functioning and administrative pro-cesses,'' ``mediation and dispute resolution,'' ``case and jury consultation,'' `èmployment on legislativecommittee sta�s,'' ``service as an expert witness,'' and ``social science research.'' Id.19 Patry et al., supra note 4 at 441.20 E�ects traditionally associated with the originating discipline are denoted with capital letters.

494 E. Y. Drogin


For example, before assuming that we had exhausted the fund of relevant issueswhen gauging the therapeutic e�ects of legal roles in a TJ analysis, we might revisitthe antijurisprudent e�ect of legal roles (Cÿ), when an attorney ``knowinglymanifests by words or conduct, bias or prejudice based upon race, sex, religion,national origin, disability, age, sexual orientation, or socioeconomic status.''21

Reconnecting with this principle in a legal context might lend additional force toarguments that the e�ects of such behavior are antitherapeutic as well asantijurisprudent, buttressed by an investigation of the social science literatureregarding juries and jury decision-making.22

Revisiting core aspects of Mental Health, we ®nd Table 5.Here, the focal discipline(s) of Mental Health (M) remain separated into three

di�erent components: science (A), practice (B), and roles (C). The resultinganalysis seeks to gauge the positive (�), neutral (0), and/or negative (ÿ) societaltherapeutic e�ects of each of these three components of Mental Health in aparticular context.

For example, prior to concluding that we had surveyed the full range ofapplicable issues when reviewing the jurisprudent e�ects of mental health practicein a JT analysis, we might revisit the antitherapeutic e�ect of mental healthpractice (Bÿ) when a certi®ed chemical dependency counselor, rendering servicesto a litigant in a suit for child custody, fails to recognize that the ``current state ofthe art'' in addiction treatment and assessment involves incorporation of a

Table 4. Internal Assessment of E�ects (Law) (Jurisprudent SocietalE�ects of Law)

Legal rules Legal procedure Legal roles

Jurisprudent L (a�) L (b�) L (c�)Neutral L (a0) L (b0) L (c0)Antijurisprudent L (aÿ) L (bÿ) L (cÿ)

Table 5. Internal Assessment of E�ects (Mental Health) (TherapeuticSocietal E�ects of Mental Health



Mental healthroles

Therapeutic M (A�) M (B�) M (C�)Neutral M (A0) M (B0) M (C0)Antitherapeutic M (Aÿ) M (Bÿ) M (Cÿ)

21 MODEL RULES OF PROFESSIONAL CONDUCT Rule 8.4 cmt. 2 (1999) (as amended 4 August, 1998).Speci®c recognition of the fact that such behavior constitutes professional misconduct is thus relativelynew in this context. See also MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 1-102(A) (1980)(proscribing ``dishonesty,'' ``fraud,'' ``deceit,'' ``mispresentation,'' and conduct ``prejudicial to theadministration of justice,'' but without direct reference toÐor commentary regardingÐany conductamounting to a display of ``bias'' or ``prejudice'').22 See, e.g., Joel D. Lieberman & Bruce D. Sales, What Social Science Teaches Us About the JuryInstruction Process, 3 PSYCHOL. PUB. POL'Y & L. 589 (1997); Daniel W. Shuman & Anthony Champagne,Removing the People from the Legal Process: The Rhetoric and Research on Judicial Selection and Juries, 3PSYCHOL. PUB. POL'Y & L. 242 (1997); Merrie Jo Stallard & Debra L. Worthington, Reducing theHindsight Bias Utilizing Attorney Closing Arguments, 23 LAW & HUM. BEHAV. 671 (1998).



``bio-psycho-socio-spiritual model''23 and relies instead upon a single modality(e.g., second-hand psychological testing) in conceptualizing the patient's addictionprocess. Revisiting the possible psychological harm done in this context couldassist in developing the thesis that the e�ects of such an omission are antijuris-prudent as well as antitherapeutic, in terms of a negative impact on the patient'schance for obtaining custody due to misdiagnosis.24

As suggested by the preceding two examples, the eventual goal of such``brainstorming''25 may be a direct juxtaposition of components of the twodisciplines under consideration, in order that useful analogies may be generated(see Table 6).

Utilizing this paradigm, we may inquire: how do science and law de®ne similardilemmas? Do social science researchers and jurists seek answers to pressingproblems in the same fashion, with the same presumptions, or with comparablegoals? Does the public at large perceive mental health professionals and lawyers assimilarly devoted to positive outcomes for the citizenry at large?

To cite a speci®c example, analysis of the distinct ``truth-®nding mechanisms''26

of the legal and psychological professions may yield insight into the ways that theroles of lawyers and psychologists (C/c) often result in di�erent conceptualizationsof the same core issues. While lawyers derive results and meaning from an`àdversary system'' (and pay the price such a lifestyle inevitably demands),27

psychologists' ``truth-®nding mechanism'' can be described in terms of

Table 6. Direct Juxtaposition of Components (Law and Mental Health)



Mental healthroles

Legal rules M/L (A/a) M/L (B/a) M/L (C/a)Legal procedure M/L (A/b) M/L (B/b) M/L (C/b)Legal roles M/L (A/c) M/L (B/c) M/L (C/c)

23 Eric Y. Drogin & Curtis L. Barrett, Addictions and Family Law, in 1998 WILEY FAMILY LAW UPDATE

61, 84 (E. Pierson et al. eds., 1998). See also COGNITIVE THERAPY WITH INPATIENTS 323 (Jesse H.Wright et al. eds., 1993) (describing the practical therapeutic aspects of the ``bio-psycho-socio-spiritualmodel'' in the treatment of addictions).24 See Melton, supra note 16, at 470±2 (describing legal aspects of custodial issues involving ``parentswho abuse alcohol'' and ``parents who use illegal drugs'').25 ``Brainstorming'' is an exercise in hypothesis generativity, popular for decades in both science andlegal contexts, that encourages researchers, theorists, and/or practitioners to view environmentalin¯uences and object interrelationships from as many di�erent perspectives as possibleÐand with asfew preconceptions as possibleÐin an attempt to develop innovative ideas and highlight nuances thatmight not otherwise be accessible. See Eric Y. Drogin, The Use of ``Generators'' in Brainstorming: AnInteractive-Environmental Approach to Case Conceptualization, 19 ADVOCATE 36 (1997); William Grahamet al., Creative Supergroups: Group Performance as a Function of Individual Performance on BrainstormingTasks, 93 J. SOC. PSYCHOL. 101 (1974); William Turner et al., Di�erential E�ects of ``Brainstorming''Instructions Upon High and Low Creative Subjects, 17 PSYCHOL. REP. 753 (1965).26 Curtis L. Barrett, Time Out! Your Mental Health Expert is Confused, 14 CHAMPION 14, 15 (1990).Professor Barrett is the originator of the ``truth-®nding mechanisms'' approach to discerninginterdisciplinary perspectives on psycholegal issues.27 See Eric Y. Drogin, Alcoholism in the Legal Profession: Psychological and Legal Perspectives andInterventions, 15 LAW & PSYCHOL. REV. 117 (1991) (describing the social and environmentaldeterminants of ``burnout'' in the legal profession, and its partial fallout in terms of the prevalence ofsubstance abuse among this population). See also MERIT BENNETT, LAW AND THE HEART (1997) andGERALD LEVAN, LAWYERS' LIVES OUT OF CONTROL (1992).

496 E. Y. Drogin


``statistical'' methods and ``replication,''28 although they are prone to `ùtilizescholarly opinion and professional consensus until a sound scienti®c basis has beenestablished.''29 Failure to achieve `à special perspective that di�ers from thatprovided by a single discipline''30 can result in chaos within (or in the struggleagainst) a defense or prosecution team, eventually resulting in `à jury who will notreadily comprehend the abstract theories of the science upon which even [the]profession itself is divided.''31

In a fashion similar to the contrast and comparison of two disciplines' comple-mentary components, the direct juxtaposition of their corresponding e�ects yieldsadditional opportunities for creative re¯ection (see Table 7).

This paradigm is particularly suited to philosophical aspects of interdisciplinaryanalysis. Scholars might be moved to wonder, for example, whether what is ``just''is inherently ``healthy'' (�/�), or to debate whether it is justi®able to pursuecertain means, even though illegal, as long as they lead to a therapeutic end (�/ÿ).These broad considerations may, in turn, identify practical issues warranting moredetailed review.

In addition, such exercises in contrast and comparison may contribute further tothe ongoing scholarly discussion of ``con¯icts'' between legal and therapeuticvalues, in light of Professor Winick's assertion that ``[a]lthough therapeuticjurisprudence is premised on the notion that, other things being equal, health is avalue that law should seek to foster, it makes no attempt to assign relative values tothe various other goals of law.''32 Similarly, while the jurisprudent therapyperspective adopts as its primary thrust the promotion of principles of justice, itdoes not range beyond that emphasis to recommend additional emphases for themental health sciences.

Acknowledging, however, that ``convergence'' of interdisciplinary goals is to bepursued where possible,33 this direct juxtaposition of closely held values of bothprofessions should provide additional opportunities to bridge a portion of theperceived gap between law and social science. One re¯ection of this potential couldinvolve an analysis of the potentially antitherapeutic nature of certain legallyjusti®able aspects (ÿ/�) of ``substituted judgment'' (i.e., guardianship or

Table 7. Direct Juxtaposition of E�ects (Health and Justice)

Therapeutic Neutral Antitherapeutic

Jurisprudent �/� 0/� ÿ/�Neutral �/0 0/0 ÿ/0Antijurisprudent �/ÿ 0/ÿ ÿ/ÿ

28 Barrett, supra note 26, at 15.29 Drogin & Barrett, supra note 23, at 91.30 StEVEN R. SMITH & ROBERT G. MEYER, LAW, BEHAVIORAND MENTAL HEALTH: POLICYAND PRACTICE x(1987).31 FRANCIS L. WELLMAN, THE ART OF CROSS-EXAMINATION 96 (4th edn., 1936). `Às Taylor even moreemphatically puts it in the last edition of his treatise on the `Law of Evidence,' Èxpert witnesses becomeso warped in their judgment by regarding the subject in one point of view that, even whenconscientiously disposed, they are incapable of expressing a candid opinion.' '' Id. at 94.32 Winick, supra note 3, at 198.33 Id. See also Robert F. Schopp, Therapeutic Jurisprudence and Con¯icts Among Values in MentalHealth Law, 11 BEHAV. SCI. & L. 31±45 (comprehensive overview of the balancing of autonomy andwell-being in both ``therapeutic'' and ``jurisprudential'' contexts).



conservatorship), which could inform a search for less restrictive alternatives34

such as might traditionally be reviewed within the context of a TJ analysis.35

INTEGRATION AND CONCLUSIONS

Tables 2 through 5 supra may be combined as in Table 8.

This paradigm represents an analytical template for reviewing any psycholegalissue in terms of its therapeutic or jurisprudent e�ects, gauged in the context ofnumerous components of both Law and Mental Health. Such a combinatoryapproach could be applied to the interface of any two disciplines, for example:architecture and physics, biology and ethics, or ®nance and politics. It provides atribute to the core heuristic potential and staying power of the original TJ doctrine,an idea that will continue to inspire teachers, researchers, and practitioners foryears to come.

Table 8. Integrative Psycholegal Model

Mental Health Law

Mentalhealthscience

Mentalhealthpractice

Mentalhealth roles Legal rules

Legalprocedures Legal roles

Therapeutic e�ectsTherapeutic M (A�) M (B�) M (C�) L (a�) L (b�) L (c�)Neutral M (A0) M (B0) M (C0) L (a0) L (b0) L (c0)Antitherapeutic M (Aÿ) M (Bÿ) M (Cÿ) L (aÿ) L (bÿ) L (cÿ)

Jurisprudent e�ectsJurisprudent M (a�) M (b�) M (c�) L (A�) L (B�) L (C�)Neutral M (a0) M (b0) M (c0) L (A0) L (B0) L (C0)Antijurisprudent M (aÿ) M (bÿ) M (cÿ) L (Aÿ) L (Bÿ) L (Cÿ)

34 See STEVEN ANDERER, DETERMINING COMPETENCY IN GUARDIANSHIP PROCEEDINGS (1990); PaulApplebaum, Limitations on Guardianship of the Mentally Disabled, 33 HOSP. & COMMUNITY PSYCHIATRY

183 (1982); Thomas L. Hafemeister & Bruce D. Sales, Responsibilities of Psychologists UnderGuardianship and Conservatorship Laws, 13 PROF. PSYCHOL. 354 (1982); Bernard Lo, AssessingDecision-Making Capacity, 18 LAW MED. & HEALTH CARE 193 (1990).35 See supra notes 1±9 and accompanying text.

498 E. Y. Drogin


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