Therapeutic jurisprudence in a comparative law context

Behavioral Sciences and the Law

Volumn 15, Issue 3, 1997, Pages 233-246

  Wexler, David B ^a,b  

^a UNIVERSITY OF ARIZONA   (United States)

^b UNIVERSITY OF PUERTO RICO   (Puerto Rico)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; COMPARATIVE STUDY; JURISPRUDENCE; LAW;

EID: 0030727741     PISSN: 07353936     EISSN: None     Source Type: Journal    
DOI: 10.1002/(SICI)1099-0798(199722/06)15:3<233::AID-BSL263>3.0.CO;2-S     Document Type: Article

References (57)

1. LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE (David B. Wexler & Bruce J. Winick eds., 1996)
2. [hereinafter LAW IN A THERAPEUTIC KEY]. Many writings referred to in the present article have been anthologized in LAW IN A THERAPEUTIC KEY. These articles are cited to the appropriate chapter in the anthology.
3. Robert F. Schopp, Therapeutic Jurisprudence and Conflicts Among Values in Mental Health Law, in LAW IN A THERAPEUTIC KEY, chapter 37.
4. Kay Kavanagh, Don't Ask, Don't Tell: Deception Required, Disclosure Denied, in LAW IN A THERAPEUTIC KEY, chapter 17.
5. For a discussion of the British law, see G. R. Rubin, Section 146 of the Criminal Justice and Public Order Act of 1994 and the "Decriminalization" of Homosexual Acts in the Armed Forces, 1996 CRIM. L. REV. 393 (1996).
6. [I]t will be helpful to the therapeutic jurisprudence community if a relatively discrete literature is regarded as principally relevant to the enterprise. Rather than the whole of social science, or even the whole of psychology, of special interest should be those articles, whether expressly related to law or not, that are written on cognitive-affective - behavioral topics by and for mental health professionals - psychiatrists, psychologists, social workers, counselors, and criminal justice and correctional professionals. In that way, efficiency will be promoted, for therapeutic jurisprudence scholars will have a handle on the kind of literature they need to keep up with and examine through the legal lens of therapeutic jurisprudence. David B. Wexler, Reflections on the Scope of Therapeutic Jurisprudence in LAW IN A THERAPEUTIC KEY, chapter 41, at 822.
7. David B. Wexler, Therapeutic Jurisprudence and the Criminal Courts, in LAW IN A THERAPEUTIC KEY, chapter 9.
8. Id.
9. DANIEL GOLEMAN, EMOTIONAL INTELLIGENCE (1995).
10. Id. at 107 (quoting Pithers).
11. Id.
12. Allison R. Shiff & David B. Wexler, Teen Court: A Therapeutic Jurisprudence Perspective, in LAW IN A THERAPEUTIC KEY, chapter 14.
13. Id. at 288. For more on victims in the criminal process, see Richard P. Wiebe, The Mental Health Implications of Victims' Rights, in LAW IN A THERAPEUTIC KEY, chapter 12;
14. Andrew Ashworth, Victim Impact Statements and Sentencing, 1993 CRIM. L. REV. 498 (1993).
15. DAVID B. WEXLER & BRUCE J. WINICK, ESSAYS IN THERAPEUTIC JURISPRUDENCE 317-320 (1991) (calling for a comparative law approach). Law in a Therapeutic Key contains several chapters that touch on comparative law matters.
16. See especially Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY, chapter 32;
17. David Carson & David B. Wexler, New Approaches to Mental Health Law: Will the UK Follow the US Lead, Again?, in LAW IN A THERAPEUTIC KEY, chapter 31.
18. See also David Carson, Therapeutic Jurisprudence for the United Kingdom?, 6 J. FORENSIC PSYCHIATRY 43 (1995);
19. David Carson, Therapeutic Jurisprudence: An Alternative Approach to Issues Affecting the Criminal Justice System, in DOES PUNISHMENT WORK? 72 (James McGuire ed., 1996).
20. MARY ANN GLENDON ET AL., COMPARATIVE LEGAL TRADITIONS: TEXT, MATERIALS AND CASES 1 (2d ed. 1994).
21. Myron Moskovitz, The O.J. Inquisition: A United States Encounter with Continental Criminal Justice, 28 VAND. J. TRANSNAT'L L. 1121 (1995).
22. Of course, that does not mean the United States should - even if constitutionally it could - move toward such a system. See, e.g., Edward A. Tomlinson, Nonadversarial Justice: The French Experience, 42 MD. L. REV. 131 (1983) (criticizing certain aspects of the French system). Nonetheless, some attractive features of the Continental system have already received some mention in the therapeutic jurisprudence literature.
23. See, e.g., David B. Wexler, Therapeutic Jurisprudence and the Criminal Courts, in LAW IN A THERAPEUTIC KEY, chapter 9, at 158 n.5;
24. Allison R. Shiff & David B. Wexler, Teen Court: A Therapeutic Jurisprudence Perspective, in LAW IN A THERAPEUTIC KEY, chapter 14, at 298;
25. David B. Wexler, Justice, Mental Health, and Therapeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY, chapter 36, at 728.
26. For a discussion of some of the rehabilitative features of the Japanese criminal justice system, see HERBERT JACOB ET AL., COURTS, LAW, AND POLITICS IN COMPARATIVE PERSPECTIVE 342-47 (1996).
27. For a discussion of drug courts, see Judge Jack Lehman, The Movement Toward Therapeutic Jurisprudence: An Inside Look at the Origin and Operation of America's First Drug Courts, 10 NJC ALUMNI 13 (Spring 1995).
28. Mark D. Herbst et al., Treatment Outcomes for Methadone Clients Receiving Lump-Sum Payments at Initiation of Disability Benefits, 47 PSYCHIATRIC SERVICES 119 (1996).
29. Paul Gendreau, Offender Rehabilitation: What We Know and What Needs to be Done, 23 GRIM. JUST. & BEHAV. 144 (1996).
30. In an article on the teaching of therapeutic jurisprudence, David B. Wexler, Some Thoughts and Observations on the Teaching of Therapeutic Jurisprudence, 35 REVISTA DE DERECHO PUERTORRIQUEÑO 273, 285-86 (1996), I gave the following example of subjecting psychological literature to therapeutic jurisprudence scrutiny: For instance, I have been intrigued by the possible relevance to law of the work of James Pennebaker on the healing power (on mental and physical health) of writing and speaking about traumatic events.
31. Most of Pennebaker's findings have been synthesized in his book Opening Up: The Healing Power of Confiding in Others. Pennebaker's work is just now barely beginning to find its way into the therapeutic jurisprudence literature. Although his book does not itself deal with the law, its possible legal implications are evident to anyone who reads it from the perspective of therapeutic jurisprudence. Seminar students reading it could explore the relevance of Pennebaker's thesis to such matters as the drafting and processing of victim compensation claims, the preparation and presentation at sentencing of victim impact statements, the importance of a psychotherapist-patient privilege, the debriefing of jurors in traumatic trials, and even the role of the federal government in interviewing victims of natural disasters. Of course, the discussion of the possible application of Pennebaker's work to the legal arena would be even richer if the legal arena included a variety of legal systems.
32. Of course, a similar dichotomous classification could be constructed to conceptualize comparative law/behavioral science work generally, not only comparative therapeutic jurisprudence. To construct that diagrammatic scheme, we would not limit the outcome axis to clinically-related "therapeutic outcomes" but would speak instead of "behavioral consequences" generally. For a discussion of the use of dichotomies for bringing order to comparative law analysis, see Inga Markovits, Playing the Opposites Game: On Mirjan Damaska's The Faces of Justice and State Authority, 91 STAN. L. REV. 1313 (1989). Of course, despite their strength as a tool of organization, dichotomies typically oversimplify the real world. Thus, matters classified here as either the "same" or "different" often are in fact situated along a continuum. Similarly, when matters such as population concentration and ethnicity are taken into account, the effect of a given law may well vary even within a single jurisdiction. In this first-cut analysis, I have resisted the temptation further to break down the classification. In addition, some reviewers of an earlier draft of the manuscript have suggested that social/cultural/ demographic/historical matters similarly deserve to be classified along a same/different dimension. I have not done so primarily for the following reason: If psychology is in fact a science - and the entire endeavor postulates that it is - then if the legal arrangements (i.e., the law and its administration) and the overall cultural factors in two jurisdictions are truly identical, the therapeutically-relevant outcomes should likewise be identical. Likewise, if the legal arrangements are truly identical and the therapeutic outcomes are different, we should postulate that the differential results are due to differences that lie within the overall cultural domains of the two jurisdictions.
33. Alexander Greer et al., Therapeutic Jurisprudence and Patients' Perception of Procedural Due Process of Civil Commitment Hearings, in LAW IN A THERAPEUTIC KEY, chapter 47.
34. See ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW (2d ed. 1993).
35. See also O. Kahn-Freund, On Uses and Misuses of Comparative Law, 37 MOD. L. REV. 1 (1974).
36. Sometimes, although we may be unwilling on normative grounds to import another nation's legal scheme, a familiarity with the other nation's situation may lead us to at least modify or tinker in interesting ways with our domestic law: For example, research in another country showing that a high degree of communal involvement in the raising of children increases the mental health of children and their families would not cause us to reexamine due process protection for a sphere of family privacy that allows a significant degree of parental autonomy, free of government control, over the rearing and education of children. It might, however, make us think about ways, consistent with parental autonomy, of providing services and opportunities to parents (that they could be free to accept or reject) that might increase the degree of participation by grandparents, neighbors, and teachers in the child-rearing process. Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY, chapter 32, at 674.
37. See supra note 20 at 940.
38. Another example of [Cell B] comparative therapeutic jurisprudence could look at the use of psychological health care compliance principles to enhance a conditionally released mental patient's chances of taking prescribed medication. We know, for instance, that if a court encourages the patient to enter into a behavioral contract and to make a public commitment to comply, the chances of compliance are likely to be enhanced. . . . [A] court composed of a single judge is arguably better able to apply these psychological health care compliance principles than is an administrative Psychiatric Security Review Board, such as the type that exists in the state of Oregon. How, one might ask, might a British Mental Health Review Tribunal fare in using the health care compliance principles? DAVID B. WEXLER & BRUCE J. WINICK, ESSAYS IN THERAPEUTIC JURISPRUDENCE 318 (1991) (footnote omitted).
39. This discussion is drawn from id. at 319-20.
40. 383 U.S. 375, 378 (1966) ("the conviction of an accused person while he is legally incompetent violates due process").
41. Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880, 1882 (1991).
42. But see Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591 (1996). Relatedly, homogeneity/heterogeneity may also make a difference in the operation of the psychological principles of health care compliance. See supra note 24. For example, "if a court encourages the patient to enter into a behavioral contract and to make a public commitment to comply, the chances of compliance are likely to be enhanced. But, in a comparative exercise, we should ask whether a public commitment is more likely to yield compliance in rural or homogeneous societies than in urban or heterogeneous ones.
43. DAVID B. WEXLER & BRUCE J. WINICK, ESSAYS IN THERAPEUTIC JURISPRUDENCE 318 (1991). The stigma of seeking mental health treatment (and perhaps the corresponding need for a psychotherapist/patient privilege) may also vary according to the size and homogeneity of the community. At the 1996 annual convention of the American Academy of Psychiatry and Law, held in San Juan, Puerto Rico, I met the sole psychiatrist of a tiny Caribbean nation. To avoid stigmatizing his patients, he characterizes his practice (on his business cards and otherwise) as one involving "general and psychological medicine".
44. Such a "borrowing" of the law could easily occur; the "appropriateness" of a law is hardly the principal reason for legal transplantation. See Alan Watson, supra note 21, at 112-13.
45. Other cautionary examples might involve the duty to warn and the civil commitment system. With respect to the former, Wexler has argued that a rule requiring psychotherapists to warn a particular victim of a patient's potential dangerousness may be therapeutically sound: if patients overwhelmingly threaten intimates and family members, which they do in the United States, a warning rule may operate to bring the potential victim into family therapy. In a comparative context, we should of course be interested in learning whether the pattern of threatening intimates holds in other jurisdictions. If it does not, "transplantation" of the rule might work more therapeutic harm than good. DAVID B. WEXLER & BRUCE J. WINICK, ESSAYS IN THERAPEUTIC JURISPRUDENCE at 317-18. With regard to civil commitment, I have been given anecdotal evidence by psychologist colleagues in Puerto Rico that an American-style civil commitment code does not function well on the island. This is apparently so because in Hispanic culture, a mother, instead of invoking the commitment law, will care for a mentally ill adult child at home, regardless of the emotional toll to her and to other family members. Only when the mother dies, it is said, will the mentally ill person be committed - or consigned to the streets. Perhaps a creative respite care law should be designed to fit this situation.
46. Alan Watson, supra note 21, at 118.
47. Id. at 112-13.
48. Jacob et al., supra note 14, at 266 (discussing the attention paid by German law professors to an objective legal science).
49. GLENDON ET AL., supra note 13, at 12. Yet, the comparatists may benefit from the behavioral science perspective of therapeutic jurisprudence scholars, for, as a leading comparatist has noted, "we [comparatists] talk about legal systems but not about the people living and breathing under those systems." Inga Markovits, Hedgehogs or Foxes: A Review of Westen's and Schleider's Zivilrecht im Systemvergleich, 34 AM. J. COMP. L. 113, 134 (1986).
50. On the judicial absorption of social facts, see Peggy Davis, There is a Book Out: An Analysis of Judicial Absorption of Legislative Facts, 100 HARV. L. REV. 1539 (1987).
51. See also REFORMING THE LAW: IMPACT OF CHILD DEVELOPMENT RESEARCH (Gary B. Melton, ed. 1987).
52. On the diffusion of "innovation" generally, see EVERETT M. ROGERS, DIFFUSION OF INNOVATIONS (3d ed. 1983).
53. John Petrila, Paternalism and the Unrealized Promise of Essays in Therapeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY, Chapter 34;
54. David B. Wexler and Bruce J. Winick, Patients, Professionals, and the Path of Therapeutic Jurisprudence: A Response to Petrila, in LAW IN A THERAPEUTIC KEY, chapter 35.
55. GLENDON, ET AL., supra note 13, at 1 (quoting EMILE DURKHEIM, THE RULES OF SOCIOLOGICAL METHOD 139 (8th ed. 1964)). Therapeutic jurisprudence, with an interest in empirical and comparative law issues, parallels developments in the "new evidence law" scholarship.
56. See generally Richard Lempert, The New Evidence Scholarship: Analyzing the Process of Proof, 66 B.U. L. REV. 439, 477 (1986),
57. and J. F. Nijboer, Common Law Tradition in Evidence Scholarship Observed from a Continental Perspective, 41 AM. J. COMP. L. 299, 338 (1993). Perhaps law itself will someday have a comparative dimension, so that there will no longer be comparative law, only law.