“In These Times of Compassion When Conformity’s in Fashion”: How Therapeutic Jurisprudence Can Root out Bias, Limit Polarization and Support Vulnerable Persons in the Legal Process

Abstract

In this paper, I consider the extent to which caselaw has – either explicitly or implicitly – incorporated the precepts of therapeutic jurisprudence (TJ), a school of legal thought that focuses on the law’s influence on emotional life and psychological well-being, and that asks us to assess the actual impact of the law on people’s lives. Two of the core tenets of TJ in practice are commitments to dignity and to compassion. I conclude ultimately that, with these principles as touchstones, TJ can be an effective tool – perhaps the most effective tool – in rooting out bias, limiting polarization, and supporting vulnerable persons in the legal process. But, this cannot and will not happen until more judges and practicing attorneys understand the potentially reformative (and transformative) role of TJ. My review of some relevant caselaw (both domestically and internationally) – a review that, to the best of my knowledge, has never previously been undertaken -- suggests that an incorporation of TJ principles is by no means a sure thing.

This article will proceed in this manner: First, I will briefly consider the creation and dynamic growth of therapeutic jurisprudence over the past thirty years, looking specifically at the interplay between TJ and values of dignity and compassion. Then, I will assess the role of TJ in dealing with the questions most central to this paper: bias, polarization, and vulnerability. I next review court decisions – both domestic and from other nations -- in which TJ is explicitly mentioned (and in some cases, relied upon). Following this, I will look at some other relevant caselaw in which (1) TJ implicitly helped bring about a solution that minimized bias or polarization or offered support to vulnerable persons or classes, (2) the failure to employ TJ led to decisions that reinforced bias and ignored the needs of those who are vulnerable, or (3) a determination of one’s perspective is needed to determine if one sees the case as “pro-TJ” or “anti-TJ.” I then, in conclusion, offer some modest suggestions as to how TJ can best be employed to ensure decisions that are, optimally,-bias free via approaches that improve therapeutic functioning and do not sacrifice civil liberties.

Keywords: therapeutic jurisprudence; judges; mental disability law; criminal proecdure; attorneys; dignity; compassion; bias