Therapeutic Jurisprudence Perspective Research Articles

Retained EU Law and Implications for Pregnant Workers: A Therapeutic Jurisprudence Perspective

Using the lenses and language of therapeutic jurisprudence, this paper will argue that the rights of pregnant workers are vulnerable in a post-Brexit climate. Whilst the sunset clause from the Retained EU Law Bill, which would have caused all retained EU law to automatically expire at the end of 2023 unless expressly stated otherwise by Ministers, was lifted, the original drafts of the Bill made clear the government’s lack of respect for and interest in protecting workers’ rights (amongst others). Furthermore, despite the abandonment of the sunset, the now legislated Retained EU Law (Revocation and Reform) Act 2023, aiming to deal with all laws that were once of European origin, still gives Ministers wide powers with limited input from Parliament to change EU derived legislation and replace with UK provision. Using an example from employment law, specifically, pregnant workers, this paper will show that the Act is a therapeutic jurisprudence unfriendly bottle as it has the potential to violate positive physical, social, and psychological outcomes. Recognising that these laws are currently vulnerable, we urge the government to keep intact (and potentially enhance) the laws protecting pregnant workers.

Sex offender registration and notification act with adolescents adjudicated for illegal sexual behavior: a therapeutic jurisprudence perspective.

Adolescents adjudicated for illegal sexual behavior (AISB) are subjected to the same Sex Offender Registration and Notification Act (SORNA) policies as adults with sexual offense histories despite current research documenting their relatively low likelihood of recidivism. Therapeutic jurisprudence is a framework which suggests the law should value psychological well-being and strive to avoid imposing anti-therapeutic consequences. The purpose of this article is to analyze the use of SORNA policies with AISB from a therapeutic jurisprudence perspective. Given the current literature documenting the collateral consequences of SORNA on AISB and their families and the lack of efficacy in reducing recidivism, we argue SORNA should not be applied to children and adolescents. We conclude with a discussion of future directions for the juvenile justice system and public policy reform.

Seen and Heard: A New Look At Child Participation in Family Disputes

Israeli legislation adopted a unique model of children's participation in conflicts adjudicated in family courts. The article looks at this model and at the findings of one evaluation study and one follow‐up study through the lens of therapeutic jurisprudence. It considers aspects of therapeutic jurisprudence manifest in the model and in these studies' findings as well as the potential entailed by broader adoption of this movement's ideas for the model's continued and effective implementation. Insights that emerged from these studies' findings, which could enrich therapeutic jurisprudence and contribute to its implementation in various countries, are also suggested. In the last section, we look through a therapeutic jurisprudence perspective at a development in Israeli law that promotes referral of family conflicts to non‐adversarial proceedings and considers how the children's right to participation can also be implemented in these collaborative, out–of‐court settings.

Hiding in Plain View: How the Extensive Use of Non-Judicial Officers Corrupts the Criminal Justice System

This chapter introduces our new book, JUSTICE OUTSOURCED: THE THERAPEUTIC JURISPRUDENCE IMPLICATIONS OF JUDICIAL DECISION-MAKING BY NON-JUDICIAL OFFICERS (Temple University Press) (2021). In it, we explain what led us to write this book, and how it focuses on a topic so far not discussed in the legal or criminological literature: the omnipresent use of non-judicial officers to make decisions in all aspects of the criminal justice system, and the implications of this use from the perspective of therapeutic jurisprudence, the ultimate aim of which is to determine whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. Essays in this book – by practicing lawyers, law professors, criminologists, sociologists and psychologists -- deal with non-judicial officers in the courtroom, with such officers in administrative settings, with ethical and practical considerations in the use of non-judicial officers, and the issues related to the use of such individuals from the perspective of a trial judge. it includes chapters on correctional law, immigration law, divorce law, criminal law and procedure, mental disability law, problem-solving courts, and other relates aspects of law and society. We hope that this book will lead to a greater understanding of this hidden aspect of the law, and why, on a daily basis, we -- giving this decision little or no thought --outsource important justice decision-making.

“But I Ain’t a Judge:” The Therapeutic Jurisprudence Implications of the Use of Nonjudicial Officers in Criminal Justice Cases

The role of nonjudicial officers occupies a hidden space in the U.S. judicial system. Statutorily sanctioned in many jurisdictions, such officers have a wide range of duties and responsibilities, including hearing certain pretrial motions in criminal cases and making decisions as to conditions of probation for sex offenders. These latter officers are frequently not lawyers, and there is significant evidence that many of the basic rudiments of the criminal trial process are often not honored. There has been virtually no consideration of this phenomenon in the scholarly literature, and absolutely no consideration from the perspective of therapeutic jurisprudence (TJ). An investigation into TJ’s basic inquiry into whether legal rules, procedures, and lawyer roles need to be reshaped suggests that TJ is not practiced in the systems under discussion here.

‘But I Ain’t a Judge’: The Therapeutic Jurisprudence Implications of the Use of Non-Judicial Officers in Criminal Justice Cases

The role of non-judicial officers occupies a hidden space in the US judicial system. Statutorily sanctioned in many jurisdictions, such officers have a wide range of duties and responsibilities, including hearing certain pre-trial motions (e.g., NY CPL § 255.20) and making decisions as to conditions of probation for sex offenders (e.g., SDCL § 23A-27-12.1). In many jurisdictions, these officers are frequently not lawyers, and that there is significant evidence that many of the basic rudiments of the criminal trial process are often not honored. There has been virtually no consideration of this phenomenon in either the scholarly literature, and absolutely no consideration from the perspective of therapeutic jurisprudence (TJ), Among TJ’s primary focuses is an inquiry into whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. This clearly does not happen in the systems under discussion here.

Study on Treatment Order introduced from the perspective of Therapeutic Jurisprudence

Study on Treatment Order introduced from the perspective of Therapeutic Jurisprudence

Análisis terapéutico de precedentes: un estudio de la intersexualidad a partir de los pronunciamientos de la Corte Constitucional

A partir de la perspectiva que plantea la jurisprudencia terapéutica en el estudio de casos judiciales, fueron sometidos a revisión los nueve fallos que hasta ahora ha emitido el Alto Tribunal de la Jurisdicción Constitucional colombiano acerca del problema jurídico más importante relacionado con la intersexualidad, esto es, el de la obtención del consentimiento informado en los procedimientos de reasignación de sexo o normalización. La regla jurídica adoptada como precedente judicial genera eventuales efectos terapéuticos o anti-terapéuticos según la obtención del consentimiento informado privilegie el ejercicio de la autonomía del menor de edad intersex, o el de sus representantes legales.

'Have You Seen Dignity?': The Story of the Development of Therapeutic Jurisprudence

This paper will be presented at a special event, hosted by the Victoria Legal Aid Society and RMIT University School of Law (Melbourne, Australia), on March 31, 2017. It traces the development of therapeutic jurisprudence (TJ) over the past three decades, and explains its impact on legal education, legal scholarship and legal practice. In it, I explain the initial insights of David Wexler and the late Bruce Winick, consider these insights in the context of the state of mental disability law in the late 1980s and early 1990s (when TJ first emerged), with a focus on their early essay collections and the initial TJ conference that I ran at New York Law School (where I taught for 30 years) in 1993. I then discuss how TJ expanded beyond the relatively-narrow framework of “just mental disability law”, and the significance of that expansion, TJ’s internationalization, and its expansion from law to psychology, criminology, social work, and other disciplines (though interestingly, not, to any significant extent, psychiatry). After this, I consider the impact it has had on traditional trial courts and case law, and the, focus on its significant impact on “problem-solving courts” – mental health courts, drug courts, and others. I then consider my own work from the past few years, and how I approach the full range of substantive topics in my writing from a TJ perspective. Next, I look at what David Wexler has been thinking about lately – about what he calls the “vineyards of the law,” and about his metaphor of “wines and bottles” – and the impact that will likely have on TJ’s future. I then share some ideas about how TJ-focused lawyers need to start thinking more seriously about how TJ should inspire them in dialogues they have with their clients, and conclude by speculating about what must be done in the future to insure that TJ continues to reinforce dignity in all aspects of the entire legal process.

Legally invisible: stewardship for Aboriginal and Torres Strait Islander health

ObjectivesThe need to improve access to good health care for Aboriginal and Torres Strait Islander people has been the subject of policy debate for decades, but progress is hampered by complex policy and administrative arrangements and lack of clarity about the responsibilities of governments. This study aimed to identify the current legal basis of those responsibilities and define options available to Australian governments to enact enduring responsibility for Aboriginal health care. MethodsThis study used a framework for public health law research and conducted a mapping study to examine the current legal underpinnings for stewardship and governance for Aboriginal health and health care. More than 200 pieces of health legislation were analysed in the context of the common and statutory law and health policy goals. ResultsVery little specific recognition of the needs of Aboriginal people was found, and nothing that creates responsibility for stewardship and governance. The continuing absence of a legislative framework to address and protect Aboriginal health can be traced back to the founding doctrine of terra nullius (unoccupied land). ConclusionsWe considered the results applying both a human rights perspective and the perspective of therapeutic jurisprudence. We suggest that national law for health stewardship would provide a strong foundation for progress, and should itself be based on recognition of Australia's First Peoples in the Australian Constitution, as is currently proposed.

How Teaching About Therapeutic Jurisprudence Can Be a Tool of Social Justice, and Lead Law Students to Personally and Socially Rewarding Careers: Sexuality and Disability as a Case Example

Therapeutic jurisprudence (TJ) asks us to look at law as it actually impacts people’s lives and focuses on the law’s influence on emotional life and psychological well-being. It suggests that law should value psychological health, should strive to avoid imposing anti-therapeutic consequences whenever possible, and — when consistent with other values served by law — should attempt to bring about healing and wellness. The ultimate aim of TJ is to determine whether legal rules and procedures or lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. An inquiry into therapeutic outcomes does not mean that therapeutic concerns ‘trump’ civil rights and civil liberties. TJ’s aim is to use the law to empower individuals, enhance rights, and promote well-being, And one of TJ’s central principles is a commitment to dignity. We know that, in many cases, law students’ desire to engage in pressing social issues fades as they become both disillusioned and passive over the course of their law school experience, and this disillusionment is often abetted by the attitudes of their professors and the way that law school is traditionally taught. We believe that the adoption of TJ principles is a way to end this disillusionment and help return students to a focus on social justice, as a way of better insuring more personally enriching and rewarding careers. In this paper, we consider this issue through the prism of teaching (and learning about) the intersection between sexuality and disability. In other articles, the authors have argued that the way society both (often simultaneously) demonizes and infantilizes persons with disability when questions of sexuality are raised reflects the level of sanism and pretextuality that permeates all of mental disability law. In these articles, we have argued further that a therapeutic jurisprudence perspective can best insure that the persons in question have voice, and are treated with dignity. In this paper, we discuss these issues, as well as examine the ways in which intersectionality — expanding our view to include factors such as race, sex, gender and sexual orientation — can compound the difficulty of discussing this topic. We seek to lay out a blueprint for other faculty members — senior, junior and future — to employ in teaching about marginalized populations, especially in substantive areas (such as this) that often evoke wildly negative reactions, even among classically “left/progressive” faculty and students.

Personality Affects Memory Performance and Psychological Well-Being in Investigative Interviews: A Therapeutic Jurisprudential Approach

Therapeutic jurisprudence (TJ) aims to execute legal procedures in ways that promote the psychological well-being (PWB) of the individuals involved. This experimental study investigates the impact of personality on interviewees' memory performance and PWB from a TJ perspective. PWB was defined by state anxiety (STAI-S) and sense of coherence (SOC). Interviewees' personalities were assessed using the 10-item short version of the Big Five Inventory (Rammstedt, B., & John, O. P. (2007). Measuring personality in one minute or less: a 10-item short version of the Big Five Inventory in English and German. Journal of Research in Personality, 41, 203–212) and State–Trait Anxiety Inventory (STAI-T; Spielberger, C. D., Gorsuch, R., Lushene, P. R. Vagg, P. R., & Jacobs, G. A. (1983). State–Trait Anxiety Inventory for Adults. Palo Alto, CA: Consulting Psychologists Press]. Participants (N = 146) were assigned to undergo either humanitarian rapport interviews or non-rapport interviews. Each group underwent one exposure (computer simulation) and two interviews separated by a 6-month interval. Regression analysis showed that neuroticism (N), openness to experience (O) and extraversion (E) predicted interviewees' memory performance; N and O were moderated by interview style. Moreover, E and agreeableness (A) predicted higher SOC and lower STAI-S, that is, increased PWB, whereas N predicted lower SOC and elevated levels of STAI-S, that is, lower PWB. In Interviews I and II, STAI-T and a non-rapport approach were a stronger predictor of lower SOC. The results are discussed from a TJ perspective.

The legal aspects of conditional release in the criminal and civil court system.

This article considers the legal implications of conditional release in both the civil and criminal parts of the law. In the criminal context, conditional release takes the form of probation and parole. It also involves persons who are found to be incompetent to stand trial or not guilty by reason of insanity. In the civil context, conditional release exists for persons with mental illness and sex offenders who face mandatory outpatient treatment. The public policy behind conditional release is to allow certain persons the least restrictive alternative with proper oversight that will prevent the person from recidivating or being re-hospitalized. Conditional release is also used as a cost-saving mechanism in response to the overwhelming costs of incarceration and hospitalization. This article explores the issues of professional liability, third party liability, and individual rights in relation to conditional release. This article also addresses public policy concerns with conditional release and examines conditional release from a therapeutic jurisprudence perspective.

Guardianship for your own good: Improving the well-being of respondents and wards in the USA

Adult guardianship is a coercive exercise of the state's power over an innocent individual, justified only by: 1) the ward's incapacity; and 2) the need to protect the ward's well-being. The raison d'être of guardianship is to improve the well-being of the incapacitated ward. Studies of actual guardianship proceedings have long indicated serious ongoing concerns with the process. Repeated revisions of statutes have attempted to improve guardianship procedures, with some success. However, relatively little attention has been paid to the actual effect of guardianship on the well-being of respondents and wards, when the system functions as intended. The presumption that guardianship, when not abused, is in the best interests of an incapacitated adult is called into serious question by empirical research into the role of internal locus of control and autonomy on human well-being. Indeed, a wide range of data indicates that guardianship itself can have significant negative effects on the physical and mental well-being of respondents and wards. The guardianship system must be reformed to maximize the therapeutic effects of guardianship and to minimize the unnecessarily anti-therapeutic effects. I examine the effects of guardianship from a therapeutic jurisprudence perspective and propose and analyze modifications that could enhance the therapeutic effects of guardianship.

Guardianship for Your Own Good: Improving the Well-Being of Respondents and Wards in the USA

Adult guardianship is a coercive exercise of the state's power over an innocent individual, justified only by: 1) the ward's incapacity; and 2) the need to protect the ward's well-being. The raison d'etre of guardianship is to improve the well-being of the incapacitated ward. Studies of actual guardianship proceedings have long indicated serious ongoing concerns with the process. Repeated revisions of statutes have attempted to improve guardianship procedures, with some success. However, relatively little attention has been paid to the actual effect of guardianship on the well-being of respondents and wards, when the system functions as intended. The presumption that guardianship, when not abused, is in the best interests of an incapacitated adult is called into serious question by empirical research into the role of internal locus of control and autonomy on human well-being. Indeed, a wide range of data indicates that guardianship itself can have significant negative effects on the physical and mental well-being of respondents and wards. The guardianship system must be reformed to maximize the therapeutic effects of guardianship and to minimize the unnecessarily anti-therapeutic effects. I examine the effects of guardianship from a therapeutic jurisprudence perspective and propose and analyze modifications that could enhance the therapeutic effects of guardianship.

Therapeutic Jurisprudence, Legal Landscapes, and Form Reform: The Case of Diversion

At the University of Puerto Rico School of Law (UPR) in the fall term of the 2008-2009 academic year, I offered, for the first time, a sentencing and corrections seminar—approached, of course, with a distinctly therapeutic jurisprudence (TJ) spin. During that term, I was also asked to review a manuscript prepared by Florida Coastal School of Law student Dax Miller. Dax Miller’s paper, prepared for Professor Susan Daicoff’s Comprehensive Law course and published in The Florida Coastal Law Review, did not relate to sentencing and corrections. Rather, it critiqued, from a TJ perspective, the standard Florida divorce agreement form. Moreover, Dax Miller proposed a rewritten form, one highly consistent with TJ principles. At just the time that I read Dax Miller’s paper I came across, in my assigned sentencing casebook, the federal pretrial diversion form, and concluded that it too was in desperate need of Daxing. Suddenly, it occurred to me that Dax Miller had opened up a completely new potential branch of TJ scholarship—what might be called Form Reform.

A therapeutic jurisprudence perspective on participation in research by subjects with reduced capacity to consent: a comment on Kim and Appelbaum

The law on the protection of human subjects in biomedical and behavioral research remains unclear for research subjects of reduced capacity. Regulations of the U.S. Department of Health and Human Services fail to address many of the key issues. Federal regulations prohibit participation in research unless the investigator has obtained a legally effective informed consent of the subject or the subject's legally authorized representative. When the individual is not competent to provide informed consent, the key question is when his representative can consent on his behalf. Few people execute advance directive instruments, and even those who do rarely deal with future participation in research. Research is much needed to increase understanding of conditions such as Alzheimer's disease and chronic mental illness. Yet, many individuals in these categories will not possess sufficient competence to decide on research participation for themselves. This article argues for a relaxation of traditional competency rules in this area so as to facilitate increased research. While strong utilitarian considerations argue for expansion of the opportunities for research with these populations, the traditional value we place on the protection of human rights and dignity justifies imposing restrictions on such participation. When an individual is unable to comprehend the risks and rationally decide, society is generally reluctant and even unwilling to permit participation. This article contends that the debate has insufficiently taken into account an important consideration - the therapeutic dimension. By focusing attention on the therapeutic jurisprudence considerations that participation in research raises, this article seeks to clarify the debate.

Exploration of the association between apology and forgiveness amongst victims of human rights violations

Forgiving may lead to an improvement of mental health, and from a therapeutic jurisprudence perspective it is important to establish what aspects of judicial procedures can be changed to promote forgiving. The literature suggests that receiving an apology may encourage forgiving. However, there is a dearth of empirical research regarding the association between forgiving and apology in judicial settings. This paper reports the findings of a study that examined the association between forgiving and four restorative situations (i.e. excuse, admission of guilt, apology, and true sorriness) in a group of 134 victims of gross human rights violations who were actual or potential participants in the proceedings of the South African Truth and Reconciliation Commission. The best predictors of forgiveness in this sample were gender and whether victims perceived wrongdoers to be truly sorry.

Hospitalization as experienced by the psychiatric patient: a therapeutic jurisprudence perspective

Hospitalization as experienced by the psychiatric patient: a therapeutic jurisprudence perspective

Why Have Hearings for Kids if You're Not Going to Listen?: A Therapeutic Jurisprudence Approach to Mental Disability Proceedings for Minors

This article explores the therapeutic jurisprudence (TJ) implications of civil commitment or other mental disability proceedings involving children. Its primary focus is due process hearings provided to review the appropriateness of minors' hospitalization in public or private mental health facilities. Providing such due process protections including legal counsel for children has been criticized as counter-therapeutic, reinforcing the child's denial of mental disability and increasing conflict with parents and therapists. Advocates for minors' civil rights have replied that due process hearings for minors are required to prevent inappropriate hospitalization and promote accurate evaluation and treatment in the least restrictive setting. This paper will analyze from a TJ perspective one state's attempt to balance the interests of parent, child, and state by providing independent clinical review hearings and legal representation for minors committed to private mental health facilities. After a brief overview of the case law and policy background establishing due process rights for minors in the civil commitment context, the article reviews the literature on the therapeutic possibilities of civil commitment proceedings, summarizing key concerns. Using a hypothetical due process hearing, the article identifies ways in which the existing procedures are counter-therapeutic. Finally, the article recommends ways of improving the therapeutic potential of mental disability proceedings for minors.