Therapeutic jurisprudence and changing conceptions of legal scholarship

Behavioral Sciences and the Law, Vol. 1 1 , 17-29 (1993)

Therapeutic Jurisprudence and Changing Conceptions of Legal Scholarship David B. Wexler, J.D.

This article traces changes in the nature oflegal scholarship and illustrates how therapeutic jurisprudence reflects changing conceptions of the law and legal scholarship. It argues that therapeutic jurisprudence may be regarded as a mental health law counterpart to “New Public Law,” and shows that questions asked by therapeutic jurisprudence scholars parallel closely those asked by public law scholars.

Mental health law scholarship is in a state of flux. The doctrinal, constitutionally- oriented scholarship that has characterized the field over the last two decades is losing its driving force. There is, however, an emerging interest in new, interdisciplinary approaches to the field. One such approach is therapeutic jurisprudence-the study of the role of the law as a therapeutic agent.‘

In many ways, the change in mental health law scholarship is symptomatic of a change in legal scholarship generally. And the change in legal scholarship is in turn related to changing conceptions of the law. This article examines those changing conceptions of law and legal scholarship and relates them to developments in therapeutic jurisprudence.

LEGAL SCHOLARSHIP

In a recent article in the Michigair Law Review entitled “The Concept of Law and the New Public Law Scholarship,”2 Professor Edward Rubin traces the recent change in legal scholarship, with particular reference to public law and administrative law scholarship. This section of the essay will summarize Rubin’s essential conclu- sions regarding public law scholarship. The next section will look at changing mental health law scholarship and at therapeutic jurisprudence. The purpose of this article is to show how therapeuric jurisprudence may be regarded as a mental health law counterpart to the “New Public Law” scholarship.

Rubin begins by noting that most legal scholarship, whether of the older or newer

David B. Wexler, J.D., is John D. Lyons Professor of Law and Professor of Psychology, Universiry of Arizona. Thanks to Joel Dvoskn, Cynthia Ginnetti, Jeffrey Klotz, John Monahan, Michael Perlin, Ted Schneyer, Roberc Schopp, Daniel Shuman, and Alan Tomkins for helphl comments on an earlier draft. Address reprinr requests and correspondence to Professor Wexler at College of Law, University ofArizona, Tucson, AZ 85721, USA. ’ DAVID B. WEXLER, THERAPEUTIC JURISPRUDENCE: THE L4w AS A THERAPEUTIC AGENT (1 990); DAVID B. WEXLER & BRUCE J. WINICK, ESSAYS IN THERAPEUTIC JURISPRUDENCE ( 1 99 1). ’ Edward L. Rubin, The Concept of Law and the New Public Lam Scholarship, 89 MICH. L. REV. 792 (1991).

0735-3936/93/010017-13$11.50 @ 1993 by John Wiley & Sons, Ltd.

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variety, is distinguishable from the scholarship of most other academic disciplines by its prescriptive nature. Its purpose, in other words, is “to frame recommendations to responsible decisionmakers. ”3

Under the “old” concept of law, the “law” was thought of as judge-made and, before legal realism, as judge “discovered.” Such judge-made law developed incrementally, on a case-by-case basis. Courts would carefully examine prior precedent, reason by analogy, and try to extract overarching principles from previously decided cases. More recently, judges have been explicitly willing to consider policy arguments in developing d ~ c t r i n e . ~ With or without policy arguments, the overall goal of the common law is to achieve an intellectual coherence.’ Indeed, even other areas, including the Supreme Court’s meticulously developed body of constitutional law, “aspire to this same coherence and thus encourage and respond to similarly theoreti- cal argument^."^

Traditional legal scholarship comported well with the “old” concept of law. Orig- inally, legal scholars helped courts and practitioners extract the principles embedded in the case law and communicated those principles in treatises. Later, law reviews became the principal scholarly forum. Law review articles served the same extracting, synthesizing, and disseminating function as the treatises. Even more, however, law reviews served to critique the intellectual coherence of given bodies of judge-made law, and presented well-reasoned proposals, based on precedent and policy, for particular doctrinal developments. Tied closely to the common law feature of incrementalism, law review articles most typically recommended to courts how best to grapple with pending or “next generation” legal issues.

Of course, this description of law review writing applies even now to many of the law review articles being written (although the highest prestige law reviews rarely print “straight” doctrinal pieces). But there is also a discemable “new” legal scholarship that derives largely from a “new” concept of law.’

The “new” concept of law flows from the reality of the modem administrative state and from the recognition that legislatures and administrators, rather than judges, are today the primary lawmakers. Today’s primary (non-judicial) lawmakers are not particularly interested in legal principles and meticulous reasoning processes. T o them, the law is an instrumentality designed to deal with a particular problem; law is successful if its results satisfactorily tackle the problem. Incrementalism is

Id. at 796. Of course, some legal scholarship-such as legal history and sociology of law-is not prescriptive. The great bulk of legal scholarship-that performed by academic lawyers on law school faculties-is, however, prescriptive in nature. Rubin notes that the quality of a legal scholar’s prescriptive work ought not to be judged by whether it is adopted, but by whether other scholars accept its “logic, creativity, and judgment.” Id. at 796. Hence, the work is addressed in a technical sense to law and policymaking bodies, but is in reality largely read and evaluated by scholars. Nonetheless, although, in light of political realities, scholars cannot except their recommendations to be accepted as a whole, some portion of some recommendations are likely to be accepted on an occasional if not a regular basis. Id. at 830. Moreover, the recommendations may create general moods or catalysts for action. Id. Indeed, “once a body of prescriptive scholarship exists, it may influence the legislators’ estimation of political advantage.” Id. at 83 1. ‘ Id. at 802,809.

Id. at833. ’ Id. at833. ’ Rubin notes that two distinctly new trends in legal scholarship-critical legal studies and law and economics-have shockingly “remained bound to the judicial orientadon of standard scholarship.” Id. a t 810.

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not a necessary part of this lawmaking process. Reasoning by analogy is inappropriate. Prior legislation is looked to as ‘‘data”8-it is looked to for its efficacy rather than for its precedential value. Increasingly, in other words, the referent of legal analysis is social problems, not the body of law itself.

The “new” legal scholarship addresses recommendations to legislatures and administrators rather than to the judiciary. According to Rubin, the reasoning represents a “shift from process justification to cause-and-result justification. ’I9 When shifting ‘‘from analogical to instrumental thinking,”10 scholars are “not searching for solutions which are intellectually coherent with a pattern of previous decisions, but for solutions that effectively [achieve] specific goals.yy” A new series of questions are posed by the new brand of scholarship:

Which rules work best in general? Which work best for particular purposes? Under what circumstances is specificity desirable, and under what circumstances is it counterproductive? What is the best mechanism for enforcing various provisions? How important is public participation for achieving the purpose and how can such participation be secured!l2

The “New Public Law” scholarship asks legal scholars to be sensitive to “insights and techniques from social science discipline^."^^ They should use studies of the law’s effectsI4 and, in collaboration with social scientists, might participate in the development of such studies. The crucial task of the legal scholar, however, is not so much to generate data but rather to use data in framing recommendation^'^ and to suggest important and relevant lines of inquiry to social scientists.

Ultimately, general theories may emerge regarding such matters as “when private causes of action are effective, what kind of agencies can implement specific programs, how statutory language can be used to control adjudicatory behavior, or which enforcement strategies an agency should use in particular circumstances.”16 Perhaps such scholarship will eventually be marshalled in a new breed of treatise.”

Normatively, the “New Public Law” scholarship is based on the assumption that the enhancement of “the welfare of our society”, and the promotion of compliance with “the essential, deontological norms in which we believe,” are “achievable by governmental action,” and that “the performance of our government can be improved, that there are techniques of governance that can be discovered, adopted, and applied.””

~

’ Id. at 823. ‘ Id. at820. “ I d . at 812. ’ I Id. at 819. l 2 Id. at 815. “ I d . at 827. “ Id. l5 Id. at 828.

Id. at 827. ” Id. See Ted Schneyer, Uniring rhe Bdkam: Wolfinrn on Legal Ethics, 37 J. LEGAL ED. 434, 438 (1987) (book review) (neatise writing as scholarship). ” Rubin, supru note 2, at 836.

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THERAPEUTIC JURISPRUDENCE AND THE NEW LEGAL SCHOLARSHIP

Without question, “traditional” mental health law scholarship was grounded in the “old” concept of law, albeit with a strong constitutional component. The core of traditional mental health law is probably the civil commitment system. Civil commitment is, of course, governed by codes, but scholarly attention was attracted almost exclusively to constitutional controversies, largely of the procedural due process variety. The body of mental health law of interest to legal scholars was basically judge- made doctrine, developed incrementally and through a process of analogical reasoning. In the area of civil commitment of the mentally ill, the analogy was almost always to the area of constitutional criminal procedure:

The Supreme Court has said indigent criminal defendants and juveniles alleged to be delinquent have a right to appointed counsel. Since civil commitment can also lead to a deprivation of liberty, shouldn’t proposed patients have a similar right to counsel?

What about the right to jury trial? Criminal defendants have a right to jury trial. But the Supreme Court has held that the right to jury trial does not extend to juvenile delinquency proceedings. Since civil commitment is closer to juvenile delinquency proceedings than to criminal proceedings) perhaps no right to jury trial should attach in commitment proceedings.

What standard of proof is appropriate in civil commitment cases? Criminal cases of course require proof beyond a reasonable doubt. Traditional civil cases, on the other hand, require only a mere preponderance of the evidence. Is civil commitment “truly” criminal or is it civil? Or is it perhaps a hybrid? And if it is a hybrid, should a compromise standard of “clear and convincing” evidence ~uffice?’~

As noted elsewhere,” that sort of mental health law and its accompanying scholarship is losing its lustre. T o a considerable extent, traditional mental health law scholarship was successful in incorporating basic procedural safeguards into the mental health system, and many mental health law scholars believe it is now time to move on to other matters. In any event, recent developments make it clear that the constitutional rights revolution is, at least for the time being, over. Indeed, the current decline of traditional mental health law scholarship seems largely attributable to the fact that the scholarship was built on a constitutional criminal procedure foundation that is itself now crumbling.” But independent of the Supreme Court’s lack of interest in forging on to new constitutional frontiers, the doctrinal approach to

‘‘ David B. Wexler, Purring Mental Health inro Mental Health Law: Therapeuric Jurisprudence, 16 LAW Sr HUM. BEHAV. 27, 28-29 (1992). See also Tom R. Tyler, The Psychological Conszquences of Judicial Procedures: Implications for Civil Commirment Hearings, 46 SMU L. REV. 433 (1 992) (blending procedural justice and therapeutic jurisprudence perspectives); Michael L. I’erlin, Rerexu and ,Vknral Disability Law: The C u e of Competency, 46 U. M ~ I L. REV. (1992) (pondering the therapeutic or andtherapeutic impact of courts condoning “pretextuality” at involuntary civil commitment and incompetency to stand trial hearings).

David B. Wexler &K Bruce J. Winick, Therapeuric Jurisprudence as a Neu Approasli to Mental Health Law Policy Analysis and Research, 45 U. MIAMI L. REV. 979 (199 1). ” Id.

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mental health law scholarship is, at least after 20 years, simply sterile.22 The scholarly malaise regarding the manipulation of mental health law doctrine signals the need for new approaches and may be evidence of a changing conception of law and legal scholarship.

Some legal scholars are now striking out in a new, highly interdisciplinary direction, and are developing an approach known as therapeutic jurisprudence. Therapeutic jurisprudence suggests that the law itself can be seen to function as a therapist or therapeutic agent. Legal rules, legal procedures, and the roles of legal actors (principally lawyers and judges) may be viewed as social forces that sometimes produce therapeutic or antitherapeutic consequences. The prescriptive focus of therapeutic jurisprudence is that, within important limits set by principles of justice, the law ought to be designed to serve more effectively as a therapeutic agent.23 Therapeutic jurisprudence in no way suggests that therapeutic considerations should trump other considerations. It suggests that, other things being equal, mental health law should be restructured to better accomplish therapeutic goals. But whether other things are equal is often debatable, and therapeutic jurisprudence does not resolve that debate.

The therapeutic jurisprudence “lens” enables us to ask a series of questions regarding legal arrangements and therapeutic outcomes that likely would have gone unad- dressed under the traditional doctrinal approach to mental health law and scholarship. Therapeutic jurisprudence will lead us to raise questions, the answers to which are empirical24 and normative. The key task is, of course, to determine how the law can use mental health information to improve therapeutic functioning without impinging upon justice concerns.

In digesting the therapeutic jurisprudence literature presented below, the reader should keep in mind the hypothesis-generating role of therapeutic jurisprudence. That is, the overall project of therapeutic jurisprudence should not stand or fall on the reader’s assessment of the empirical accuracy of particular illustrations. Indeed, the illustrations themselves typically call for further empirical research.

An examination of the emerging therapeutic jurisprudence scholarship reveals patterns that track quite closely the new directions in legal scholarship described by Rubin. Much of the scholarship in therapeutic jurisprudence continues to be technically directed to the appellate arena of lawmaking. The unique contribution of therapeutic jurisprudence in that arena, however, is to argue for the acceptance or rejection, of a legal doctrine on the basis of policy arguments grounded in mental

”Daniel W. Shuman, Ovem‘ew, 46 SMU L. REV 323 (1992) (introduction to mental disabilicy law symposium); Wexler, supra note 19, at 29. 23 D. WEXLER, supra note 1; D. WEXLER & B. WINICK, supra note 1 . The nonnative question is extensively explored in Robert F. Schopp, 7herapeuric Yun>prudence and Conjicts Among Values in Mental Health Law (this issue).

Because of methodological considerations, the empirical questions will in practice vary markedly in their receptivity to actual empirical analysis. Legal scholars should not “censor’’ these questions under some prior restraint notion of methodological difficulty. Instead, the questions should be asked, and social scientists and ethicists should be given the opportunity of thinking through the propriety of conducting the research. Indeed, policy recommendations may ofren be permissibly made on rhe basis of empirical questions chat yield suggestions but that lack definitive empirical answers. See John Monahan & Laurens Walker, Empirical Questions Wirhout EmpiricalAnswers, 1991 WIS. L. REV. 569 (199 1).

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health information or psychological theory. A conceptual analysis may be undertaken simply to show how the policy-driven proposed doctrine is consistent with an intellectually coherent body of law.

A case in point of appellate-oriented therapeutic jurisprudence scholarship is Winick’s article on the Zinennon” case. In Zinennon, the Supreme Court called into question the competence of patients to consent to voluntary hospitalization. Zinermon was himself so delusional that he was unaware he was entering a mental hospital. In its Zinennon opinion, however, the Supreme Court used unnecessarily broad language in its constitutional condemnation of Zinermon’s “voluntary” admission. Some dicta in the opinion can, therefore, be read as seriously limiting the voluntary admission process.

Relying on the vast literature relating to the psychological value of choice, Winick has urged appellate courts to construe the Zinennon rule narrowly.’6 Looking to principles of cognitive and social psychology to support the presumed therapeutic advantages of voluntary hospitalization over involuntary commitment, Winick suggests Zinennon, if taken literally, could undermine much of the therapeutic value of the voluntary hospitalization process. His thesis is that voluntary hospitalization is more likely than involuntary hospitalization to be efficacious, and that the potential for success is enhanced when the patient is treated as competent and when his or her choices are honored. Winick, therefore, engages in a careful doctrinal analysis- such as separating the Court’s “holding” from its “dictutn”-in order to convince appellate courts that they need not read Zinermon literally and broadly. It is, however, his psychologically-driven, therapeutically-oriented policy argument that is offered to persuade the courts that they should read Zinennon narrowly.”

Therapeutic jurisprudence scholars have also addressed appellate courts in areas not involving constitutional concerns. Both Schopp and Shuman, for example, have examined particular aspects of tort doctrine through a therapeutic jurisprudence lens.

Schopp has looked at certain aspects of a psychotherapist’s Turusof18 duty to

”Zinermonv. Burch, 110 S.Ct. 975 (1990). ’‘ Bruce J. Winick, Competency to Consent ro Voiunra y Hospiralizarion: A Therapricric Jzirispncdence Analysis of Zinennon v. Burch, 14 INT’L J. L. & PSYCHIATRY 169 (1991). Of course, to the extent that coercive influences drive patient decisionmaking, Winick recognizes that the value of “choice” may evaporate. Id. at 193. For a recent empirical study of coercive influences in voluntaxy hospital admission, see Susan C. Reed & Dan A. Lewis, The Nrgotiarion of Volunray Admission in Chicago’s Srare iL1rntal Hospirals, 18 J. PSYCHIATRY &L. 137 (1990). 2i In a separate piece based on the importance of choice, Winick suggests that therapeutic value may well flow from the judicial recognition of a right to refuse treatment. Bruce J. Winick, The Right ro Refuse Trearmenr: A TherapeuticJurispmdence Analysis, 15 INT’L J.L. & PSYCHIATRY (1 992). For addiuonal therapeutic jurisprudence questions regarding the right to refuse treatment, see Michael L. Perlin, Reading rhe Supreme Coun’s Tea Leaves: PredicringJudicial Behavior in Civil and Criminal Righr ro Refuse Treament Cases, 12 AM. J. FORENSIC PSYCHIATRY 37, 54 (1991). See also Bruce J. Winick, Comperency robe Executed: A TherapeuticJurispndencePerspective, 10 BEHAV. SCI. & L. 317 (1992) (constirutional question in capital context). For other constitutional questions viewed through a therapeutic jurisprudence lens, see Fred Cohen, Liabiliv for Custodial Suicide: i’he Information Base Requirements, JAIL SUICIDE UPDATE, summer 1992, at 1 (constitutional suicide prevention duty); Daniel W. Shuman, Calling in rhe Cavaly: Tht. Duty of rhe State to Rescue the Vulnerable in the United States (unpublished manuscript 1992) (discussing advisability of a constitutional duty to rescue victims of child abuse). 28 Tarasoff v. Regents of the Univ. of Calif. 131 Cal. Rptr. 14 (1976).


protect third persons from dangers posed by the therapist’s patient.29 Schopp does not enter the debate over whether the Tarasoff obligation is itself therapeutically detrimental (by pitting the therapist against the patient),” or whether the obligation might in the aggregate prove to be therape~t ic .~’ The “therapeutic” thesis is that since homicidal threats are overwhelming made against family members and inti- mates who themselves play a substantial role in contributing to the violence, Tarusoff may prompt therapists to make contact with potential victims-persons who might profitably be brought into some sort of “couple” or “conjoint” therapy.

Assuming the existence of a Tarasoff rule, Schopp shows how therapeutic jurisprudence considerations might inform the debate over whether the obligation should constitute only a duty to warn or a more general duty to protect. Moreover, he discusses whether a therapist’s obligation should be limited to situations involving “specific threats against identifiable Victims” (STIV), or whether, under the “zone of danger” (ZOD) rest, it should apply whenever the patient poses a foreseeable danger-and extend to all victims within the zone of danger.

Basing his therapeutic jurisprudence analysis on a “consistent body of research [indicating] that successful therapy depends heavily on a therapeutic relationship in which the patient perceives the therapist as concerned about and dedicated to the patient’s ~ e l l - b e i n g , ” ~ ~ Schopp womes that the tort regulation of psychotherapy might sometimes be self-defeating. Tort law tries to influence a therapist’s fiduciary obligations-to put the patient’s interests first-by appealing to the self-interest of the therapist in avoiding liability. A tort rule governing psychotherapists would be particularly self-defeating if it “encourages prudent therapists to practice their pro- fessions with a wary eye toward potential liability rather than with full attention on their patients’ interests.’y33

Schopp suggests that the self-defeating feature of a therapist’s duty to warn or protect potential victims can be greatly reduced by the law “providing a crystallized trigger that clearly identifies cases in which the . . . duty to warn applies.”34 That way, “therapists could then put this concern [of potential patient dangerousness] aside until the triggering conditions o c ~ u r r e d . ” ~ ~ They “could attend to their fiduciary responsibilities most of the time, but sacrifice these concerns when the duty to warn demanded

Schopp regards the STIV standard as just such a crystallized trigger. A therapist could go about his or her duty, putting the patient’s interests first and not thinking at all in self-interested legal liability terms, unless and until the patient makes a

’’ Roben F. Schopp, The Psychorherapst’s Duty to Prorect the Public: The Appropriate Srandard and the Foundation in Legal Theory and Empirical Remises, 70 NEB. L. REV. 327 ( 1 99 1) .

Alan A. Stone, The Tarasoff Decisions: Suing Psychorherapkt to Safeguard Society, 90 HARV. L. REV. 358 (1976). ” David B. Wexler, Parienrr, Therapisrr, and Third Pames: The Victimlogical Vinues of Tarasoff, 2 IKT’L J. L. & PSYW~UTRY 1 (1979). See also Michael L. Perlin, Tarasoff and the Dzlemma of rhe Dangerotis Patient: N m Direcrions for the 1990’s, 16 IAW & PSY~HOL. REV. 29 (1992) (therapeutic jurisprudence questions posed by Tararofn. ” Schopp, supra note 29, at 354.

JUST. &BEHAV. 492 (1988).

’’ Id. ’’ Id.

30

Id. at 354. See also Stanley L. Brodsky, Fear of Litigation in Menrd Hralrh Professionals, IS CRW.

Schopp, supra note 29, at 355.

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specific threat against an identifiable victim. If and when such a threat occurs, the balance would, for public policy purposes, shift.37

Schopp proposes to enhance therapeutic outcome through tort rules directed at psychotherapists. Shuman, on the other hand, hopes to improve therapeutic outcome through a proposed rule directed at emotionally stressed accident-prone person^.^' Drawing on the literature linking stressful life events to high accident rates, Shuman postulates that accident proneness would decrease if non-mentally ill but emotionally stressed individuals were encouraged to seek effective treatment.

Shuman believes that traditional tort law, with its “objective” standard of care, does not play a role in encouraging such treatment-seeking behavior. The objective standard assesses negligence according to an abstract, idealized notion of the “reasonable” person. Accordingly, the objective standard would not have the jury take into account the defendant’s special stressful situation and the measures the defendant has taken to relieve the stress-and to relieve the concomitant accident proneness. Shuman urges appellate courts to depart from the objective standard and to adopt a limited “subjective” standard of care in certain situations. Under a limited subjective standard, the jury would learn of the defendant’s stress and of therapeutic measures undertaken to relieve it. Given the defendant’s situation and therapeutic efforts, a jury would presumably be less inclined to find negligence than it would be if it knew nothing of the defendant’s stress and judged the defendant’s behavior under an objective reasonable person standard. Indeed, the jury would be specifically instructed to evaluate the defendant’s conduct under a subjective standard. Shuman hopes that the use of a limited subjective standard might actually prompt persons suffering considerable stress to seek professional a s~ i s t ance .~~

The constitutional and tort law proposals described above are obviously aimed primarily at appellate court lawmakers, although many of the proposed policies could,

~~

In contrast to the STN, the ZOD (zone of danger) standard is a vague, non-crystallized “trigger” that leaves a therapist at sea with regard to when a protective duty arises. Just as triggers may be crystallized or non-crystallized, so too may be the underlying duty. A duty to warn is crystallized insofar as it requires specific action; a duty to protect, on the other hand, is general and might be discharged in various ways. Schopp has noted the various potential combinations:

When courts adopt the STIV standard for the duty to warn, they establish a fully crystallized standard of care, and when they adopt the S T N for the general duty to protect, they establish a crystallized trigger for a broad general duty. Analogously, when courts adopt the ZOD standard for the duty to protect, they crystallize neither the duty nor the trigger, and when they apply the ZOD standard to the duty to warn, they establish a crystallized duty without a crystallized trigger.

Id. at 353. Schopp notes that the therapeutic or antitherapeutic consequences of the various combinations are of course empirical matters. Nonetheless, given his assumption that therapy works best when a therapist can think in undiluted terms about the patient’s interest only, Schopp hypothesizes that a ZOD trigger combined with a crystallized duty to warn “draws the worst from both worlds.” Id. The ZOD “trigger” will lead the therapist constantly to practice with “a wary eye toward potential liability,” id. at 354, and the crystallized duty to warn will require a warning even in circumstances where the therapist has “good reason to believe that warnings will exacerbate the danger ofhann.” Id. at 353.

Daniel W. Shuman, Therapeuric Jurisprudence and Ton Law: A Limired Subjectizx Standard of Cure, 46 SMU L. REV. 409 (1992). ’’ If an individual suffering considerable emotional stress goes to a physician, counselor, or walk-in clinic, the appropriate professional could advise the individual to accept-or continue with-psychotherapy. In encouraging the individual to receive treatment, the professional could emphasize that attending therapy sessions might reduce the risk of an accident and, if an accident should nonetheless OCCUT, should reduce the risk of legal liability. In that way, t on law might serve a deterrent-and therapeutic-funcdon. Perhaps the therapeutic impact will be suongest among “law-regarding” potential defendants, such as professionals womed about malpractice liability, and weakest among the ordinary automobile driver.

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of course, also be achieved through legislative efforts.“ Other recent therapeutic jurisprudence writings, however, are clearly addressed to audiences other than appellate judges.

In a recent piece by Wexler and Winick4’ and in another by Klotz, Wexler, Sales, and BeckerY4’ commentators have applied a therapeutic jurisprudence approach to generate questions and suggestions about sex offenders and the plea process. These pieces draw upon the literature suggesting sex offenders are notorious in their harboring of “cognitive distortions” denying or minimizing their culpability. Therapists, therefore, often begin therapeutic efforts with a process of “cognitive restructuring,” an endeavor that seeks to induce offenders to confront their distortions and admit their criminal behavior.

A therapeutic jurisprudence approach to the sex offense area might lead us to ask whether the law (rules, procedures, or roles of lawyers and judges) in the context of sex offenders operates therapeutically or antitherapeutically. For example, does the law in this area promote cognitive restructuring? Or does it instead promote cognitive distortion (and thus perhaps contribute to psychological dysfunction and criminality)?

In that connection, consider the following: in terms of plea bargaining, in jurisdictions where judges have considerable discretion in imposing sentence, offenders will often engage in “sentence” bargaining, where they will plead guilty to the charged offense in exchange for leniency in the sentence imposed. In jurisdictions with heavy mandatory sentencing provisions for certain offenses (such as sex offenders), however, judicial discretion is laclung; discretion in such jurisdictions is in essence trans- ferred to prosecutors in their charging decisions. In those jurisdictions, offenders will often engage in “charge” bargaining, where they are charged with crime X, but acquire sentence leniency by pleading to lesser offense Y . Therapeutic jurisprudence would lead us to ask whether, by encouraging defendants to plead to conduct different from-and less serious than-the conduct they actually engaged in, charge bargaining contributes to cognitive distortion more so than does sentence bargaining.

Similarly, do sex offenders disproportionately seek to plead “no contest,” where they take the consequences of a guilty plea without admitting guilt? Do no contest pleas lead to a missed opportunity for the law to engage the defendant in cognitive restructuring? If no contest pleas were unavailable, would defence lawyers seeking to anange plea bargains for their clients be more inclined to encourage their clients to face the facts, thereby in essence performing a cognitive restructuring function?

Finally, when a judge accepts a guilty plea, the court possesses considerable discretion in how to establish the required “factual basis” for the plea. The nature

An interesting application of therapeutic jurisprudence in the tort context also appears in Norman G. Poythress & Stanley L. Brodsky, In rhe Wake of a Negligent Release Law Suit: A n Investigarion of Professional Consequences and Insrirurional Impacr on a Stare Psychiatric Hospiral, 16 LhW & HUM. BEHAV. 154 (1992). That inquiry is more descriptive rhan prescriptive, however, and thus is not addressed to the appellate judiciary. See also James L. Stirling, Jr., “Lirigaphobia” in Alabama’s Stare MenralHospitalr: Can Qualified Immunary Put the King’s Men Back Togerher Again?, 15 LAW & PSYCHOL. REV. 185 (1991) (recommending legislative solutions). ” David B. Wexler & Bruce J. Winick, TherapeuticJunsprudence and CriminalJusrice Mental Health Issues, 16 MEN-TAL & PHYSICAL DISABILITY L. REP. 225 (1 992). “Jeffrey A, Klorz, David B. Wexler, Bruce D. Scales & Judith V. Becker, Cognitive Resrrurruring through Law: A Therapeutic Jurisprudence Approach to Sex Offenders and the Plea Process, 15 U. PUGET S O W L. REV. 579 (1992).

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and detail of the court’s questioning of the defendant might bear heavily on whether cognitive distortion or cognitive restructuring results.

Once the empirical evidence is in, to whom will the policy recommendations regarding sex offenders be made? If charge bargaining is antitherapeutic, at least in sex offense cases, that is a matter that presumably ought to be factored into the question whether mandatory sentencing for such offenses ought to continue. The primary message is indeed to the legislature. Secondarily, however, prosecutors might think twice about engaging in charge bargaining in certain contexts. If no conrest pleas are antitherapeutic in the sex offender context, again legislators might wish to take action to make such pleas unavailable (generally or in specific sorts of cases). Regardless of what the legislature does, however, trialjudges might decide to accept no contest pleas in sex cases reluctantly if at all. Finally, if detailed questioning of the offender on the record yields greater cognitive restructuring than does cursory questioning, trial courts might begin to take quite seriously their role in establishing a factual basis for sex offense pleas.

Note that the concept of “law” for this therapeutic jurisprudence exercise consists of (1) legislation, (2) administration and enforcement of the law (by the public prosecutor), and (3) judicial behavior unrelated to the creation of legal doctrine. Prescriptive scholarship and “law reform” might, therefore, often be addressed to functionaries in the system, urging them, for therapeutic reasons consistent with principles of justice, to change their behavior or their ordinary course of doing busi- ness.

When the functionaries in the legal system operate with wide discretion-when they exist in an unconstrained (or “ ~ n i m p a c t e d ” ) ~ ~ legal field-we must face Appel- baum’s concern, expressed in the somewhat different context of civil commitment, that “to the extent that judges, attorneys, or mental health professionals must alter their behavior to effect the aims of therapeutic jurisprudence, the call for them to do so presumes a preexistent willingnes~.”~~ If those actors lack a pre-existing will- ingness to engage in the suggested behavior, the message, theory, empirical support, and practicability of the suggested behavior must be convincingly provided in the scholar’s pre~cription.~~ Of course, certain actors-perhaps especially judges-may be hesitant to perform a supposedly therapeutic role, as opposed to a strictly legal or judicial one. Like it or not, however, judicial behavior may produce therapeutic or antitherapeutic consequences, and judges may therefore ultimately decide (or be persuaded) to behave in a manner most beneficial to society. Today’s law students, more accustomed than their predecessors to thinking about the law in interdisciplin-

See Duncan Kennedy, Freedom and Conscraint in Adjudication: A Critical Phenornetlolopy, 36 J. LEGhL EDUC. 518 (1986).

Paul S . Appelbaum, Cizd Comminnent from u Systems Perspective, 16 L!W & HUM. BEHAV. 61, 69 (1 992). ” And, of course, remember Rubin’s consolation that the scholarship need not be evaluated by whether it is immediately accepted in practice. See supru note 3.

An actor who possesses considerable discretion-who is legally unconstrained-may decide to exercise his or her discrcuon in a particular way in order to constrain the behavior of another actor. And the fvst actor might act to constrain the second actor so as to help achieve a possibly therapeutic effect. For example, if a judge decides not to accept a no contest plea in a sex offender case, the defense counsel’s role in achieving a satisfactory plea bargain for his or her dient might now be more constrained and more difficult; the defense counsel, in turn, might exert more pressure on the client. That pressure, however, might serve a cognitive restructuring function.

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ary terms, may, when they ascend to the bench, be reasonably comfortable with such an expanded role.

Another example of therapeutic jurisprudence scholarship aimed at the behavior of trial judges is my proposed incorporation of psychological health care compliance principles in the insanity acquittee conditional release process.46 Psychologists have discerned certain principles that health care professionals might employ in order to increase patients’ medication and treatment adherence. One such principle is that those who enter into behavioral contracts to comply are likely to have greater compliance than those who do not; another is that compliance is enhanced by making a “public commitment” to comply; relatedly, if family members are aware of a patient’s agreement to comply, the rate of patient compliance is likely to be higher.

By using these principles, courts might be able to structure conditional release proceedings to better serve a risk management function. Those hearings might then be used not simply to predict whether a patient will continue to take medication if released, but to actually inpuence and facilirate that compliance. A judge familiar with the principles and willing to use them might ask whether the patient, hospital, and community facility have signed a behavioral contract; the hearing might be deferred in the event such a contact had not yet been negotiated and signed. The judge might use the hearing as a forum in which a patient might make a public commitment to comply with certain release conditions, and the judge might arrange for certain agreed-upon family members to be present at the hearing. By following these principles, therapeutic compliance and public safety may presumably be enhanced without any sacrifice to liberty/justice principles.

In the proposed health care compliance scheme, judges are encouraged to use psychological principles to promote compliance with court orders. By contrast, in his look at the psychotherapist-patient privilege, Klotz4’ uses a therapeutic jurisprudence perspective to argue that psychotherapists ought to use legal principles to enhance treatment goals.

Klotz builds upon the empirical “privilege study” conducted by Shuman and Weiner.“ Shuman and Weiner concluded that, contrary to the conventional wis- dom, the presence or absence of a psychotherapist-patient privilege actually has very little therapeutic impact. Relying on deterrence theory in conjunction with the Shuman and Weiner findings, Klotz suggests that the absence of an absolute psychotherapist-patient privilege could actually be therapeuricalIy beneficial. Klotz reasons that those patients who come to therapy in order to receive treatment for behaviors that may result in criminal conduct are likely to speak with their therapists about their criminal desires. But:

were the absolute psychotherapist-patient privilege removed from the typical therapeutic relationship, those patients who make potentially incriminating communications to their therapist (e.g., of the desire or intent to commit a crime) might be less likely to act on those urges. They might be deterred from engaging in behaviors that have foreseeable legal consequences in order

David B. Wexler, Health Care Compliance Principles and rhe Insaniry Acquinee Condirional Release Process,

Jeffrey A. Klorz, Limiting rhe Psychorherapisr-Parienr Privilege: The Therapeuric Porenrial, 27 CUM. L.

Daniel W. Shuman & Myron S. Weiner, The Privilege Srudy: An Empirical Examination ofthe Psychorhera-

*I

27 CRIM. L. BULL. 18 (1991).

BULL. 416 (1991).

pix-ParienrkviZege, 60 N.C. L. REV. 893 (1982).

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28 D. B. Wexler

to avoid disclosure of the communication in a future criminal proceeding. In short, the removal of the psychotherapist-patient privilege could be therapeutically beneficial.*’

The Klotz suggestion is really addressed to two audiences: (a) the legislature, which, if Klotz is right, ought to eliminate or limit the psychotherapist-patient privilege, and (b) psychotherapists, who would presumably need to know about the content of the privilege law and about the postulated therapeutic and deterrent benefit that ought to flow from communicating the status of the law to their patient^.^'

The Klotz example shows us how, in therapeutic jurisprudence terms, even private therapists might be regarded as “administrators” or “enforcers” of the pertinent law. One way for the law to reach and influence the behavior of this type of fhc t ionaq is by rules such as Turusoflthat serve to guide and constrain the behavior of mental health professionals. The Klotz example is, however, quite different: If mental health professionals are, as a matter of law, relatively or wholly unconstrained in their discretion whether or not to notify patients of limitations in the privilege law,” the suggestions of scholars will need to convince the professionals that it is indeed in their professional interest to use or “administer” the law in the recommended manner.

CONCLUSION

What might we conclude from our examination of the emerging therapeutic jurisprudence literature? Changes in our conception of the law and in our mode of conducting legal scholarship is occumng in many areas, and mental health law is no exception. In some ways, therapeutic jurisprudence seems to be mental health law’s counterpart to what Rubin describes as the “New Public Law” scholarship. Therapeutic jurisprudence has important constitutional law and common law components, and it has dearly not abandoned the appellate arena. In that arena, however, ir sees its role as providing empirically- or theoretically-derived, therapeutically-oriented, justice-

Klorz, supra note 47, at 417. Klorz suggests, id. at 428, that a psychotherapisr might make an introductory sratement explaining

to the patient the concept of confidentiality and assuring the patient that confidentiality will be respected unless it is legally or ethically necessary for the therapist to make a disclosure. As an example of a legal restriction on confidentiality, the therapist might then state:

[For example,] in this state, there is no absolute psychotherapist-patient privilege. What this means is that if, for some reason, what is said between us in therapy becomes relevant to a judicial proceeding, 1 could be compelled ro tell the court the confent of the communication. For example, if you are arrested for a crime, and go to trial, I can be compelled to disclose in the judicial proceeding what you have told me relating to the crime with which you have been charged, your intention to commit it, and so forth.

Depending upon the jurisdiction, and upon professional ethics requirements, a psychotherapisr may be either entirely unconstrained about whether to tell the patient anything about the limitation of the privilege (and related marten), or the therapist might be under some obligation to disclose the lirnirs of the privilege (and other limits). The law and practice is at present quite unsettled. Id. at 427 11.52. Psychotherapists may be as reluctant to use the law in their work as members of the bench and bar may be about using therapeutic concepts. Increased interdisciplinary education will, however, exprctedly reduce that reluctance. Psychotherapists sensitive to the law and to legal context may be able to devise effective “psycholegal” treatments. See Amiram Elwork, Psycholegal Treatment and Inrrrvention: The N e x t Challenge, 16 LAW & HUM. BEHAV. 175 (1 992).

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compatible policy arguments as the basis for urging new legal and constitutional doctrine. Therapeutic jurisprudence has begun its foray into the legislative arena, but obviously has only begun to scratch the surface of that promising scholarly enterprise. In some ways, the conception of law harbored by therapeutic jurisprudence scholars is remarkably broad, and includes the behavior of trial judges, the exercise of prosecutorial discretionY5’ the performance of trial lawyers,53 and the behavior of mental health professionals and others.

The questions asked by therapeutic jurisprudence scholars parallel closely the ones asked by the new brand of public law scholars. In light of what we have seen regarding Tarasoff and “crystallized triggers,” and in light of what we have seen regarding the possible judicial use of health care compliance principles such as public commitment and the involvement of family members, consider, in a therapeutic jurisprudence context, the relevance of the questions posed earlier by Rubin:

Which rules work best in general? Which work best for particular purposes? Under what circumstances is specificity desirable, and under what circumstances is it counterproductive? What is the best mechanism for enforcing the various provisions? How important is public participation for achieving the purpose and how can such participation be secured?54

Not surprisingly, given the similarities we have seen between the two, therapeutic jurisprudence and the “New Public Law” scholarship share basic normative assump- tions. Recall that, according to Rubin, the latter body of scholarship works from the assumption that the enhancement of “the welfare of our society,’’ and the promotion of compliance with “the essential, deontological norms in which we believe,” are “achievable by governmental action,” and that “the performance of our government can be improved, that there are techniques of governance that can be discovered, adopted, and applied,”55 Therapeutic jurisprudence, as an application of the social science in law (SSL) enterprise, is in accord. Consider, in closing, the striking similar- ity between Rubin’s remarks and those of Melton, who notes that SSL scholars share a “commitment to the question of social welfare” and also share “beliefs that the law is a useful means to that goal, that the law is reformable, and that social science can assist the law in its mission.”56 Therapeutic jurisprudence scholarship can assist in the “law and mental health” aspect of the law’s mission.

For a therapeutic jurisprudence example of the suggested exercise of prosecutorial discretion, see David B. Wexler, Inducing Therapeutic Compliance through the Criminal Law, 14 LAW 8i PSYCHOL. REV. 43 (1990) (discussing possible reckless endangerment prosecutions against those who refuse to take reasonable steps to reduce their dangerous propensities). I’ Michael L. Perlin, Fat& Assumption: A Critical Evaluation of the Role of Counsel in Mental Disability Cases, 16 LAW & HUM. BEKAV. 39,57-58 (1992). See also note 45 supru (role of defense counsel). I‘ Rubin, supru note 2, at 8 15. Therapeutic jurisprudence represents a new brand of scholarship designed to address those sorts of questions in a pamcular context. Ultimately, with cooperation between legal scholars and social scientists, we may end up with a body of material answering these questions and illuminating the relationship between “legal arrangements and therapeutic outcomes.” Some day, such materials may even be synthesized and categorized in a new brand of treatise, as Rubin speculates may eventually occur with the “New Public Law” scholarship. Id. at 827.

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Rubin, supru note 2, at 836. Gary B. Melton, Law, Sczince and Humanity: The Nonnative Foundation of Social Science in Law, 14

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LAw&HuM. BEHAV. 315,321 (1990).

Documents

Therapeutic jurisprudence and changing conceptions of legal scholarship