Mainstreaming Therapeutic Jurisprudence – Challenges and Opportunities in the United States

In this blog post, David Yamada explores the challenges of mainstreaming therapeutic jurisprudence (TJ) in the U.S. and offers some ideas for discussion both in the U.S. and other countries …

At the ripe old age of 25, Therapeutic Jurisprudence (TJ) has spawned a core community of academicians, practitioners, judges, and students.  An online database bulges with TJ-related scholarship.  Judges and lawyers are incorporating TJ lessons into their professional practices.  Many TJ denizens participate in online and social media discussions and gather periodically at conferences and symposia.

And yet, we are far from declaring TJ sufficiently mainstreamed into the legal profession. Hence, we have this TJ project and blog, not to mention an intensifying discussion within the TJ community about how to expand its influence.

What follows is an assessment of challenges we face toward mainstreaming TJ in the United States, along with a preliminary suggested agenda for how to move forward.  Please forgive my Ameri-centric angle; it is the venue I know best.  Furthermore, colleagues in other countries can best write about TJ’s presence in their respective jurisdictions.  I hope that this short commentary will serve as an invitation to do so, and perhaps nurture the broader dialogue on how we can advance the reach of TJ among legal and policy stakeholders.

Psychology = Messy

American lawyers and judges learn very early in their legal training – commonly, during the first year of law school – of the law’s discomfort with psychology, whether in interpreting tricky issues of intent or wrestling with how to incorporate insanity or incapacity into legal decision making.  Furthermore, emotions are regarded as messy, getting in the way of analysis.  When it comes to dealing with legal disputes, it’s easier to get the parties’ stories and apply rules to facts, hopefully without too much mucking around in the human mind and complicated feelings.  This attitude also dovetails nicely with the less-developed emotional intelligences of many young law students whose analytical skills often outpace their life experiences.

Legal Systems

I offer the hypothesis that many American lawyers, judges, legislators, and law students have little idea of how truly miserable the standard-brand civil or criminal litigation experience can be for most parties to a legal dispute.  Being a party to litigation is, at best, a major distraction from more life-affirming activities, and often proves expensive, time consuming, intimidating, fearful, and stressful, with significant stakes in the result.  It is hard to talk about therapeutic legal processes and outcomes when those in charge of the machinery don’t fully understand the experience of being processed in it.

TJ’s Flexibility

TJ’s very flexibility may serve to undermine it. Frameworks, ideologies, and philosophies tend to attract people who seek a sense of certainty and consistency that helps them to interpret and understand a complex world.  The American academic and legal communities are no exception. TJ’s basic tenets are much less directive than those of some of its more established siblings.  This offers scholars and practitioners more room to define TJ ideas and practices, but it may frustrate those who seek an ideological affiliation with more structure and prescription.

Elevator Speech

TJ is hard to explain in the span of what marketing people like to call the “elevator speech.” Start talking about what’s “therapeutic and anti-therapeutic” in the law and many legal eyes quickly show confusion.  By contrast, if you say “the legal system is rigged against the poor, disenfranchised, and people of color” (Critical Legal Studies) or “the law should be all about wealth maximization and economic efficiency” (Law and Economics), then you’ll quickly know whether you have a potential adherent – well before the elevator reaches the household goods or electronics floor.

Lack of Breadth

Virtually any area of doctrinal law seemingly would benefit from an infusion of TJ perspectives. In terms of substantive legal topics in the U.S. legal academy and scholarship, however, TJ remains concentrated in fields such mental health and disability law, criminal justice, and dispute resolution.  Even obvious candidates such as family law, tort law, and employment law (my area of specialty) currently show only small numbers of faculty and lawyers expressly identifying with TJ.

Joining Associations

TJ presently has no membership association that people can join to mark their allegiance and that harnesses dues to support programming and visibility.  This is a void amid a legal profession and academic disciplines known for establishing affinity groups. (It also may be a very American trait, with deep historical and cultural roots. In the 19^th century, French visitor Alexis de Tocqueville observed that Americans are uniquely drawn to joining voluntary associations formed around common interests.)

Valley of Tiers

In an age of American legal education positively obsessed with institutional prestige, hierarchy, and tier-based rankings, TJ presents modestly. TJ-affiliated American professors are drawn largely from regional law school faculties, not elite national ones, along with a sprinkling from criminal justice and public administration schools.  TJ-related scholarship is more likely to appear in law reviews published at regional schools and in specialty journals from across the ranking spectrum, but typically not the reviews tagged most prestigious.  The reasons for these dynamics are many and complex, but in terms of the American legal academy, the results create hedgerows that greet mainstreaming efforts on behalf of TJ.

Thoughts on Moving Forward

In drafting this commentary, I realized that TJ’s goals are, in many ways, downright revolutionary in view of the realities of the current American legal system – and, I’m sure, of legal systems elsewhere.  Nevertheless, I’d like to offer a preliminary agenda for mainstreaming TJ in the study and practice of law:

• Create a non-profit, international membership association with an unambiguous name, something as simple as the Society for Therapeutic Jurisprudence;
• Form TJ working groups based in cities, law schools, etc., where a critical mass of people can be organized, perhaps as chapters of an international membership association;
• Strategize about how to introduce TJ to mainstream bar associations, legal academic societies, and legal newspapers and newsletters;
• Strategize about how to build a TJ presence in continuing legal education programs, where experienced lawyers may be more open to these ideas and practices;
• Identify and, when necessary, write TJ survey-type law review pieces in various doctrinal areas of law, leading to the creation of core subject-matter bibliographies easily accessible by educators, practitioners, judges, and students; and,
• Popularize slightly punchier, more agenda driven language that better translates the “therapeutic and anti-therapeutic” frame of TJ, such as “a legal philosophy that believes laws and legal systems should value psychologically healthy outcomes,” or a “legal ideology favoring laws and legal systems that advance human dignity and well being.”

David Yamada (dyamada@suffolk.edu) is a Professor of Law at Suffolk University Law School in Boston and an advisory group member of the TJ Mainstreaming project.  Check out his blog “Minding the Workplace” and his law review articles.

Have you got ideas on how to move TJ mainstreaming forward?  Let’s get the discussion happening…Comment below…