Elevating Therapeutic Jurisprudence: Structural Suggestions for Promoting a Therapeutic Jurisprudence Perspective in the Appellate Courts

Abstract

This short essay notes that therapeutic jurisprudence (TJ) has had a considerable impact on many lower courts, but, despite some important scholarship a bit over a decade ago relating to TJ in the appellate arena, has yet to be felt in the higher courts. The paper notes two different potential streams for TJ appellate activity: 1. the drafting of opinions that should read more as respectful letters to the loser (rather than the conventional opinion which reads more like a congratulatory letter to the winner), and 2. the formation of legal doctrines that achieve therapeutic/preventive objectives. For the appellate courts to adopt more of a therapeutic jurisprudence approach, scholars have noted that "lawyering needs to be done differently," and the present essay finds that potential for different lawyering in the form of law clerks/appellate court staff attorneys, and amici curiae. The law clerks/staff attorneys can be enlisted to assist in more sensitive opinion drafting and the use of amicus curiae briefs in appropriate cases can focus on the therapeutic or anti-therapeutic impact of the legal doctrines under consideration in those cases.

Keywords: therapeutic jurisprudence, law clerks, amicus curiae, appellate courts, appeals