Land Use Consultations Advancing Therapeutic Jurisprudence: Ripe for Clinical Trials
18 Cardozo J. Conflict Resolution 85 (2016)
Arizona Summit Law School Paper Series No. 2016-A-03
27 Pages Posted: 1 Mar 2016 Last revised: 28 Mar 2017
Date Written: February 29, 2016
Some land use matters produce high volumes of “combatants.” Developers change neighborhoods and daily routines, but not always for the better. Disruption of street life at the granular level has devastating impacts on the neighborhood. Poor and lower-income populations, and increasingly middle-income persons, cannot afford hiring lawyers to represent them in costly land use battles. Local regulators are charged with securing competing goals: to protect property owners against the potential erosion of their wealth and health caused by new development, and to promote their towns’ economic efficiency and growth for competitiveness. This difficult balance at times renders outcomes of land use hearings justified by seemingly incredible or irrationally-based premises. Local bureaucrats are not oblivious but have limited opportunity to focus on some negative dimensions of development.
From the Therapeutic Jurisprudence perspective, resulting intense public disaffection with an administrative legal process like land use regulation is unhealthful. Academics and practitioners urge American law schools to teach collaborative problem-solving and unconventional forms of conflict resolution, while Therapeutic Jurisprudence advocates urge introducing students to how legal processes and their actors affect a community’s well-being.
The Task Force on the Future of Legal Education was created in summer, 2012, charged to recommend to the American Bar Association how law schools, the ABA, and other groups and organizations might take concrete steps to address issues concerning the economics of legal education and its delivery. The task force’s Final Report (January, 2014, page 24) tells law schools to accommodate missions featuring more skills-related courses and simulations of real-world law practice (so-called experiential learning), so that new graduates have some competencies in delivering some legal services (Page 26, Report).
This paper addresses a proposed experiment at the confluence of currents of public disenchantment with policy-making bodies, citizens' perceived underrepresentation and lawyering-education transition. While a legal clinic specializing in mediation of land use controversies conceived here has built-in challenges, the Task Force affirmed that 21st Century legal education needs “a much stronger culture of innovation, nimbleness and attention to factors outside the academy.” (Pages 4 and 27, Report) As explained in the paper, focused clinic students can gain a sense of citizenship and appreciation of the power of Therapeutic Jurisprudence to raise public spirits in land use determinations in the process of learning practical problem-solving skills like active listening and task-absorption. The risk-reward balance favors engaging both law schools and their surrounding communities in this paper's proposed clinic endeavor.
Keywords: zoning, land use, land use controversies, Therapeutic Jurisprudence, conflict resolution, consultation, law school clinic, joint fact-finding, problem solving, land use disputes, zoning processes, zoning entitlements, law clinic, legal clinic, mediation clinic, mediation, real estate development
JEL Classification: K11, K20, K41, Q15, R14, R52, R58, D74
Suggested Citation: Suggested Citation