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Abstract:
The Supreme Court's 2002 decision in Atkins v. Virginia and 2005 decision in Roper v. Simmons marked a significant new direction in Eighth Amendment jurisprudence. This Article explores the Court's emerging conception of proportionality under the Eighth Amendment, which also is reflected in its 2008 decision in Kennedy v. Louisiana. The Article analyzes the application of this emerging approach in the context of severe mental illness. It argues that the Court can extend Atkins and Roper to severe mental illness even in the absence of a legislative trend away from using the death penalty in this context. The strong parallels between severe mental illness at the time of the offense and mental retardation and juvenile status make such an extension of the Eighth Amendment appropriate.

Severe mental illness would not justify a categorical exemption from the death penalty; rather, a determination would need to be made on a case-by-case basis. The major mental disorders, like schizophrenia, major depression, and bipolar disorder, could qualify in appropriate cases, but not antisocial personality disorder, pedophilia, and voluntary intoxication. The Article discusses the functional standard that should be used in this context, and proposes that the determination be made by the trial judge on a pretrial motion rather than by the capital jury at the penalty phase. Future implications of the Court's emerging approach also are examined.

Abstract:
Therapeutic jurisprudence is the study of the law's healing potential (Wexler & Winick, 1996; Wexler & Winick, 1991; Winick, 2005; Winick, 1997b). An interdisciplinary approach to legal scholarship that has a law reform agenda, therapeutic jurisprudence seeks to assess the therapeutic and counter-therapeutic consequences of the law and how it is applied, as well as to increase the former and diminish the latter. This book chapter discusses how therapeutic jurisprudence contributes to the functioning of drug treatment courts.

Abstract:
This article describes how therapeutic jurisprudence, and the therapeutic jurisprudence/preventive law model, can be imported into legal education and practice. Although the approach can (and does) find application in a broad spectrum of legal areas, the present article focuses on the criminal law clinic and on training future criminal lawyers with an expanded professional role: one that explicitly adds an ethic of care and considerations of rehabilitation. As such, it brings an interdisciplinary perspective into clinics and law practice, with particular emphasis on insights and techniques drawn from psychology, criminology, and social work. The article explores a therapeutic jurisprudence framework for thinking about criminal law competencies, and illustrates the explicit use of the expanded professional role in the area of sentencing, in juvenile parole revocation proceedings, and in a tribal reentry court project.

clinical legal education, therapeutic jurisprudence, criminal law

Abstract:
The article discusses how law schools can satisfy the new ABA standards for legal education, which require law students to receive expanded professional training. The article suggests that training students in therapeutic jurisprudence constitutes an excellent way of meeting the new ABA standards and moves legal education into the modern era in a manner that will significantly increase the quality of lawyering and both client and professional satisfaction.

Therapeutic jurisprudence, ABA standards, legal education, skills, professional skills, professional training

Abstract:
Therapeutic jurisprudence embodies a psychological approach to law - one that applies the insights and principles of psychology to the examination of legal rules and practices and to their improvement. It provides a new focus for law and psychology scholarship, identifying a variety of issues in need of theoretical and empirical examination Law reform is an important theme of therapeutic jurisprudence, and scholars applying the approach have succeeded in offering an enormous range of proposals for legal change in a wide variety of legal contexts. In addition, therapeutic jurisprudence identifies a number of new roles and contexts for clinical psychologists working in the legal system.

This chapter illustrates the growing impact of therapeutic jurisprudence on the field of law and psychology. It then illustrates how therapeutic jurisprudence can be used to map a new research agenda for law and psychology scholarship that would be highly useful for the legal system. Empirical work examining the therapeutic consequences of legal arrangements and therapeutic jurisprudence reform proposals has begun to emerge, but the extent of such work still remains disappointingly small. This chapter is designed to help research psychologists and other social scientists to understand better the potential of therapeutic jurisprudence for identifying important questions for empirical investigation.

Abstract:
Therapeutic jurisprudence focuses attention on the emotional well-being of those who come into contact with law and the legal system. This book chapter discusses how therapeutic jurisprudence can contribute to our understanding of the plight of victims of crime and how the legal process can be re-imagined to facilitate their healing and human potential. It argues that the criminal process and the way police, judges, court personnel, prosecutors, and defense lawyers play their roles with regard to the victim of crime should be animated, in important part, by a concern for the needs of the victim.

Abstract:
This article describes the approach of therapeutic jurisprudence, an interdisciplinary form of legal scholarship that has a law reform agenda. It then illustrates the approach by applying it to the question of when coercion might be appropriate in the area of involuntary psychiatric hospitalization and treatment, and when appropriate, how clinicians, judges, and lawyers should act so as to minimize coercion's potentially antitherapeutic effects and maximize the therapeutic potential of law in this area. The article considers areas of psychological research involving the relative effectiveness of coercion and voluntary choice in the area of hospitalization and treatment, and on what makes patients feel coerced in these contexts. The article seeks to reshape legal rules and legal and clinical practices relating to involuntary hospitalization and treatment to reflect a therapeutic jurisprudence orientation.

civil commitment, involuntary treatment, perception of coercion, therapist-patient relationship

Abstract:
The American Bar Association and other professional organizations have adopted policy statements calling for an exclusion from capital punishment for those with severe mental illness at the time of the offense. If this policy is adopted, either legislatively or judicially under the Eighth Amendment, a procedural question would arise concerning how this mental illness/capital punishment exclusion issue is determined. Should the issue be determined by pretrial motion made to the trial judge or a special jury convened for this purpose? Should it be determined by the capital jury at the penalty stage that would follow conviction for a capital crime? This Chapter analyzes the various factors that should be considered in resolving the procedural question of how this exclusion from capital punishment should be determined, and argues that Eighth Amendment values and considerations of accuracy, cost, and therapeutic jurisprudence all tilt strongly in the direction of having the issue decided pretrial by the trial judge. The chapter then examines whether having the trial judge make the determination would be inconsistent with Ring v. Arizona (2002), which reflects the Sixth Amendment’s constitutional preference for jury determinations of disputed issues of fact in capital sentencing. Finally, the chapter analyzes whether the prosecution or the defense should have the burden of persuasion on the Eighth Amendment question, and by what standard of proof that burden should be carried.

Abstract:
This article paper examines the lawyering in the Schiavo case. It examines not the quality of the arguments made or the procedures used, but the extent to which the lawyering was consistent with the emotional needs of the respective clients. The Schiavo case provides an opportunity to illustrate the therapeutic jurisprudence/preventive law model of lawyering. In many ways, the case was an emotional disaster for all parties. The litigation became the functional equivalent of a train wreck. Could it have been avoided? Could the lawyers have acted differently in the way they counseled their clients? Were there approaches other than high conflict litigation that could have been attempted that would have reduced the level of conflict or even resolved the controversy?

The article explains the therapeutic jurisprudence/preventive law model and conducts a sort of autopsy of the case, rewinding it back to several crucial points at its early stages to examine what the lawyers could have done differently. What techniques or approaches could have been used that were not? How should the lawyers have advised their clients concerning the risks and emotional costs of litigation? To what extent should rules of professional conduct or lawyering practices be changed to ameliorate the problems that this case so vividly illustrates? The article examines these questions, and in the process, analyzes lawyering generally.

Schiavo, therapeutic jurisprudence, lawyering, litigation, preventive law, client counseling

Abstract:
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.

Abstract:
This chapter argues that people diagnosed with psychopathy alone should not qualify for inpatient involuntary hospitalization or preventive outpatient commitment. Preventive outpatient commitment is controversial. Even though it involves a lesser intrusion on liberty than inpatient commitment, it nonetheless involves a deprivation of liberty protected by due process. As a result, the nature of such commitment must satisfy the reasons that serve to justify it.

Outpatient commitment is justified largely based on parens patriae considerations, and this typically requires that the patient be incompetent to make treatment decisions for himself or herself. Moreover, such commitment contemplates that the individual will be provided treatment that is effective for his or her condition. As involuntary treatment generally is not effective for people suffering from psychopathy, the chapter argues that outpatient commitment is inappropriate for this population for parens patriae purposes. Furthermore, people with this condition do not suffer from cognitive impairments that render them incompetent.

An additional purpose justifying commitment is protection of the community from harm, a purpose grounded in the state's police power. To justify commitment for this purpose, however, the person must suffer from a condition that makes it difficult for him to control his behavior. The chapter argues that individuals with psychopathy can control their conduct. As a result, the chapter concludes that outpatient commitment based on the police power also is inappropriate. Instead of inpatient or outpatient commitment, the chapter argues that the criminal law should be used for purposes of protecting the community from the antisocial conduct of those suffering from psychopathy.

psychopathy, outpatient commitment

Abstract:
The problem of elder drivers experiencing impariments that diminish their driving abilities raises serious concerns for public health and safety. Although this is an important health problem, existing state practices are inadequate in several respects and impose unnecessary negative social, economic, health, and psychological consequences for many of the elder drivers whose driving privileges are restricted or terminated.

This article uses the approach of Therapeutic Jurisprudence to examine these issues by focusing attention on the antitherapeutic consequences of existing rules and practices. Therapeutic jurisprudence provides a useful complement to public health strategies for dealing with these issues. We seek to balance the public health needs of the community with the desire to minimize the negative consequences that existing practices pose on the psychological wellbeing of elder drivers and their families. We propose a comprehensive solution based on the Social Ecology of Health model augmented by principles and approaches of therapeutic jurisprudence. This model, which we call the Safe Driving Center, combines screening and assessment, remedial/rehabilitation interventions, education and training, individual and family counseling, and a comprehensive community-based approach for dealing with the problem preventatively. Whenever possible, the center will seek to persuade impaired elder drivers voluntarily to cease or restrict their driving by offering inducements and alternative transportation solutions.

Abstract:
This foreword to a law review symposium on victim's rights describes the approach of therapeutic jurisprudence and suggests how its approach can be used to improve the plight of the victim in the criminal justice process.

Abstract:
Therapeutic jurisprudence has spawned a reconceptualization of the role of the lawyer. It envisions lawyers who practice their profession with an ethic of care, enhanced interpersonal skills, a sensitivity to their clients' emotional wellbeing as well as their legal rights and interests, and a preventive law orientation that seeks to avoid legal problems. This chapter explores the role of the lawyer representing a client in a potential or actual civil dispute.

If litigation can be avoided, the client most often will be much better off. Yet, the client will often bring to the law office a variety of emotional responses to the controversy that can make settlement quite difficult.These include anger at the adversary and denial about what has happened or the extent to which the client is at fault. How can the lawyer reduce the client's emotional stress and facilitate her ability to resolve the conflict and experience psychological healing? How can the lawyer deal with the client's anger and denial so as to make settlement possible? This chapter discusses how the lawyer can deal with these psychological barriers to settlement.

Abstract:
This Article applies the approach of therapeutic jurisprudence to the processing of domestic violence cases. It explores selected topics and controversies in domestic violence law, analyzing them through the lens of therapeutic jurisprudence. In addition to proposing changes in the law in this area, it offers suggestions about how the various legal actors that deal with domestic violence cases - police, judges and other court personnel, prosecutors, and defense lawyers - can perform their roles in ways that can help to rehabilitate offenders and bring about healing for their victims.

Abstract:
Appellate courts are increasingly deciding cases without issuing a formal opinion. The most frequent instance of this is the per curiam affirmance. While the per curiam affirmance can be justified on efficiency grounds, it may have antitherapeutic effects for the party who appealed. This article uses psychological theory to examine these antitherapeutic effects, and to propose a remedy: the use of a short therapeutic or speaking affirmance. In particular, the literature on the psychology of procedural justice and its application to this context is explored. The article applies the approach of therapeutic jurisprudence by seeking to identify the antitherapeutic consequences of this legal practice, and to make recommendations designed to avoid or minimize them. If followed, the recommendations made can help to provide a measure of healing for the appellant who has lost his or her appeal.

Abstract:
An important reason why advance directive instruments are underused is that people faced with the need to think about the end-of-life, or future mental health problems or the need for nursing home admission experience psychological stress that produces denial and procrastination. This essay examines how lawyers counseling clients about advance directive instruments can deal with such denial and resistance. It explains the psychological defense mechanism of denial and related forms of resistance, and offers suggestions about techniques that lawyers can use for dealing with them in counseling their clients about advanced directives. It suggests ways in which lawyers can develop their interpersonal skills, becoming more empathic and more sensitive to their clients? psychological needs.

Abstract:
Because civil commitment results in a massive deprivation of liberty, a hearing is required as a matter of due process. Due process contemplates a fairly elaborate adversarial judicial hearing. In practice, however, the civil commitment hearing often is an empty ritual in which the lawyer relaxes her adversarial role and the judge reaches a foregone conclusion after a brief proceeding lasting only minutes. This article uses the approach of therapeutic jurisprudence to criticize this practice and to suggest ways in which the civil commitment hearing can be reformed so as to maximize its therapeutic potential. Judges, lawyers, and testifying clinicians can play their roles differently to provide the individual with a greater sense of voice, validation, dignity, and respect. This will produce greater satisfaction by the individual and increased compliance with the court's ultimate decision, and should enhance the efficacy of any hospitalization that is ordered.

Abstract:
This Foreword traces the development of advance directive instruments and discusses their legal enforceability and many benefits. Despite their advantages, advance directives remain underused and are frequently ignored by service providers. The articles in the special issue discuss why this is so and offer and debate a variety of remedial proposals. They analyze the various legal, clinical, ethical, and practical issues presented by the use of advance directives for health and mental health care, and examine new directions in their use. The Foreword describes the organization of the special issue, summarizes the articles it contains, and comments upon their significance.

Abstract:
An important reason why advance directive instruments are underused is that people faced with the need to think about the end-of-life, or future mental health problems or the need for nursing home admission experience psychological stress that produces denial and procrastination. This article examines how lawyers counseling clients about advance directive instruments can deal with such denial and resistance. It explains the psychological defense mechanism of denial and related forms of resistance, and offers suggestions about techniques that lawyers can use for dealing with them in counseling their clients about advanced directives. It suggests ways in which lawyers can develop their interpersonal skills, becoming more empathic and more sensitive to their clients' psychological needs.