Juristocracy in the Trenches: Problem-Solving Judges and Therapeutic Jurisprudence in Drug Treatment Courts and Unified Family Courts

Abstract

This article explores the role of judges on two types of "problem-solving courts": drug treatment courts and unified family courts. It compares the behavior these "problem-solving" judges to more traditional models of judicial behavior and to activist judging at the appellate level. The authors conclude that the judges who serve on these problem-solving courts have largely repudiated the classical judicial virtues of restraint, disinterest and modesty in favor of a more activist and therapeutic stance. However, the causes and consequences of this role-shift are complex. In particular, the authors suggest that the proliferation of problem solving courts and judges is not primarily a "trickle-down" effect of activist judging at the appellate level; rather, these developments are a response to powerful political and institutional forces outside the judicial system. Legal scholars who seek to understand "juristocracy in the trenches" should therefore broaden their analytic focus to include the ways in which these institutional forces shape the behavior of state trial court judges.

Keywords: drug treatment courts, family courts, unified family courts, judges