stolle fm autocx 11/13/01 1:29 PM Page i Practicing Therapeutic Jurisprudence

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1 stolle fm autocx 11/13/01 1:29 PM Page i Practicing Therapeutic Jurisprudence

2 stolle fm autocx 11/13/01 1:29 PM Page iii Practicing Therapeutic Jurisprudence Law as a Helping Profession Edited by Dennis P. Stolle David B. Wexler Bruce J. Winick C a rolina Academic Pre s s D u rham, North Caro l i n a

3 stolle fm autocx 11/13/01 1:29 PM Page v For my father D. P. S. For Rhoda D. B. W. For Soia Mentschikoff, mother of legal realism, who bro u g h t me from law practice into legal education, was my mentor, friend, and on one occasion, lawyer, and who would have liked therapeutic j u r i s p rudence and its contribution to the craft of lawyering; and for my new granddaughter, Beatrix Pearl Kinney Wi n i c k, b o rn June 26, 2000, who one day will read this book and I hope will apply its principles in whatever she decides to do. B. J. W.

4 stolle fm autocx 11/13/01 1:29 PM Page vii Contents A c k n o w l e d g m e nt s F o re w o rd, by Edward A. Dauer I nt ro d u ct i on, by Dennis P. Stolle x i x i i i x v Chapter 1 Part I Integrating Therapeutic Jurisprudence and Preventive Law I nt e g ra t i ng Pre v e ntive Law and Thera p e u t i c J u r i s p rudence: A Law and Psychology Based A p p ro ach to Law y e r i ng Dennis P. Stolle, David B. We x l e r, B ruce J. Winick, and Edward A. Dauer 5 Chapter 2 P ract i c i ng Therapeutic Jurispru d e n c e : Psycholegal Soft Spots and Stra t e g i e s David B. We x l e r 4 5 Chapter 3 Better Legal Co u n s e l i ng Through Empirical R e s e a rch: Ident i f y i ng Psycholegal Soft Spots and Stra t e g i e s M a rc W. Patry, David B. We x l e r, Dennis P. Stolle, and Alan J. To m k i n s 6 9 Part II Civil Practice Chapter 4 Chapter 5 Advance Dire ctives, AIDS, and Mental Health: TJ Pre v e ntive Law for the HIV-Positive Client Dennis P. Stolle 8 3 Legal Planning for Unmarried Co m m i t t e d P a rtners: Empirical Lessons for a Pre v e nt i v e and Therapeutic Appro ac h Jennifer K. Robbennolt and Monica Kirkpatrick Johnson v i i

5 stolle fm autocx 11/13/01 1:29 PM Page ix Cont e nt s i x VI Therapeutic Jurisprudence and Legal Culture Chapter 15 T h e rapeutic Jurisprudence and the Culture of Critique David B. We x l e r A f t e rw o rd A p p e n d i x The Role of Therapeutic Jurisprudence within the Co m p rehensive Law Movement Susan Daicoff I d e nt i fic a t i on of Psycholegal Soft Spots and Stra t e g i e s About the Cont r i b u t o r s About the Editors I n d e x 5 0 5

6 stolle fm autocx 11/13/01 1:30 PM Page xi Acknowledgments B ruce Winick thanks Dean Dennis O. Lynch for his and the law school s s u p p o rt, and his secre t a ry Eileen Russell and work study/assistant Jaymy B e ngio for their secretarial assistance. He also thanks re s e a rch assistant s C h e ryl Potter, Tricia Shakelford, and Frank Anzalone. David Wexler thanks Deans Toni Massaro (University of Arizona) and Ant onio Garcia Padilla (University of Puerto Rico) for their encoura g e m e nt and support, Jessica Cousineau for her re s e a rch assistance, and Norma Kelly for her secre t a r- ial and administrative services. Dennis Stolle gratefully acknowledges the s u p p o rt of the University of Nebraska Law/Psychology Pro g ram during a p o rt i on of the pre p a ra t i on of this volume and thanks many of his colleagues at Barnes & Thorn b u rg for their encoura g e m e nt. We also thank C a rolina Academic Press, especially its Pre s i d e nt Keith Sipe, and also Ti m Co l t on and Kathy Kay. Special thanks goes to Ed Dauer and Susan Daicoff for cont r i b u t i ng the F o re w o rd and Afterw o rd, re s p e ct i v e l y. Finally, we are most grateful to the authors who contributed to this volume and their publishers. In their ord e r of appearance, they are : Chapter 1 (Dennis P. Stolle, David B. We x l e r, Bruce J. Winick, & Edward A. Dauer) Int e g ra t i ng Pre v e ntive Law and Therapeutic Jurisprudence: A Law and Psychology Based Appro ach to Law y e r i ng, 34 California We s t- e rn Law Review 15 (1997). Reprinted with perm i s s i on. Chapter 2 (David B. Wexler) Pract i c i ng Therapeutic Jurisprudence: Psycholegal Soft Spots and Strategies, 67 Revista Juridica Universidad de P u e rto Rico 317 (1998). Reprinted with perm i s s i on. Chapter 3 (Marc W. Patry, David B. We x l e r, Dennis P. Stolle, & Alan J. Tomkins) Better Legal Co u n s e l i ng Through Empirical Research, 34 Cali f o rnia We s t e rn Law Review 440 (1998). Reprinted with perm i s s i on. Chapter 4 (Dennis P. Stolle) Advance Dire ctives, AIDS, and Ment a l Health: TJ Pre v e ntive Law for the HIV-Positive Client, 4 Psychology, Public Policy & Law 954 (1998). Copyright 1998 by the American Psychological Association. Reprinted with perm i s s i on. Chapter 5 (Jennifer K. Robbennolt & Monica Kirkpatrick Johnson) Legal P l a n n i ng for Unmarried Committed Partners: Empirical Lessons for a Pre- x i

7 stolle fm autocx 11/13/01 1:30 PM Page xiii Foreword Few things have captured the tide of the times so well. In the scant fiv e years since Wexler and Winick first described the wide angle lens of Therapeutic Jurisprudence in their book Law in a Therapeutic Key, TJ has become a managing partner in the enterprise of fashion i ng the 21st cent u ry s l awyer; and We x l e r, Winick and Stolle are though they might disclaim the role the managers of TJ. It was their vision that uncovered the benefit s of a liaison among TJ and Pre v e ntive Law and ADR and Creative Pro b l e m S o l v i ng, and the crises of purpose with which the pro f e s s i on and many of its members are gra p p l i ng today: How might the humane objectives of l aw and law y e r i ng be re t u rned, from being the platitudes and abstract i on s that drive public policy to become the daily re w a rds of lawyers and their c l i e nts? Their energy continues to int e g rate the seemingly diverse ideas (and their pro p on e nts) that together offer promise for a new legal re a l i t y. This book is the latest pro d u ct of that eff o rt, and one of the most immediately useful. This is no small or unimport a nt task. When the legal history of the t w e ntieth cent u ry is written, it will in all likelihood tell of an unpara l l e l e d e x p l o s i on of legal pro t e ct i ons for those members of society perceived to be d i s a d v a ntaged in a world otherwise red in tooth and claw. The re s u l t i ng c h a racter was, perhaps, inevitable, for America has had two driving trad i t i ons. The first is cultural diversity. In mon o c u l t u ral societies, norms are born in history, embedded in expect a t i on and tra d i t i on, learned almost since weaning, seldom debated. The c o m m on denominators are the fabric of everyday life. In authoritarian societies, norms are simply dictated, even less often debated. In America by hope and defin i t i on a non-authoritarian and poly-cultural plac e t h e re is little unanimity about norms, and much of our Con s t i t u t i on a l s t ru ct u re is designed precisely to pre v e nt the views of a majority fro m b e c o m i ng inescapable common denominators. Lac k i ng con fidence in the universality of substance, we have invested heavily in the con s t ru ct i on of p ro c e s s. The second tra d i t i on has been, throughout our legal history, the adversarial nature of legal process. For better or worse, dialectical advocac y (with all of its eff e cts and extremes) has been legal tru t h s primary sourc e of nutrition. No won d e r, then, that as American society matured to re c- ognize the imperative of inclusiveness and the pro t e ct i on of the less advan- x i i i

8 stolle fm autocx 11/13/01 1:30 PM Page xv Introduction How can mental-health law maximize therapeutic outcomes? This was the fundamental question pre s e nted by my co-editors, David Wexler and B ruce Winick, when they formally int roduced therapeutic jurisprudence as a distinct legal theory, about a decade ago. The subsequent impact of this q u e s t i on on mental-health law scholarship, and legal scholarship in general, has been nothing short of phenomenal. Therapeutic jurisprudence off e re d a fresh and creative new perspective, which served as a catalyst for a coope rative and truly int e rd i s c i p l i n a ry appro ach to legal scholarship. The re s u l t has been scores of authors writing hundreds of articles addre s s i ng this fund a m e ntal question in legal contexts ra ng i ng from tra d i t i onal areas of mental-health law, such as involunt a ry commitment, to areas far beyond tra d i- t i onal mental-health law, such as commercial law and cont ract s. 1 Much of the success of therapeutic jurisprudence stems from its re f u s a l to displace other values or priorities. Like law and economics, which often asks how can the law maximize economic utility?, therapeutic jurisprudence takes a quasi-utilitarian appro ach to jurisprudence, asking how can the law maximize therapeutic outcomes? However, thera p e u t i c j u r i s p rudence does not attempt to displace the maximization of econ o m- ic utility with the maximization of therapeutic outcomes, nor does it attempt to trump individual rights, or other values or priorities, in the name of a v o i d i ng ant i - t h e rapeutic consequences. Rather, therapeutic jurispru d e n c e p l aces the psychological and emotional health of persons aff e cted by the l aw and by legal actors as one import a nt con s i d e ra t i on among many. The question of how to maximize therapeutic outcomes has most often been appro ached from a systemic, or top-down, perspective. This systemic appro ach tends to focus on law re f o rm and its methodology tends to i d e ntify ant i - t h e rapeutic (or potentially ant i - t h e rapeutic) aspects of existi ng laws, legal institutions, or legal pro c e d u res and then advocate specific legal re f o rms, often at the legislative level, with the int e nt i on of maximizi ng therapeutic outcomes. By the mid 1990 s, though, my co-editors were also thinking about bottom-up appro aches to therapeutic jurispru d e n c e. That is, they were thinking not only about how laws could be c h a n g e d t o 1. See e.g., David B. Wexler & Bruce J. Winick, L aw in a Therapeutic Key ( ). See also, T h e rapeutic Jurisprudence Bibliography available at www. l aw. a r i z on a. e d u / u p r- i ntj. x v

9 stolle fm autocx 11/13/01 1:30 PM Page xvii x v i i I nt ro d u ct i on x v i i B ruce, Ed, myself, and others met in Los Angeles to begin planning a prog ram of scholarship focused on int e g ra t i ng therapeutic jurisprudence and p re v e ntive law. The first step, it seemed, would be the pre p a ra t i on of a fullyi nt e g rated theory, to which we each would contribute. We first pre s e nt e d that theory at the May 1997 meeting of the Law and Society Association in St. Louis, Missouri. The Law and Society pre s e nt a t i on elicited insightful c o m m e nts from the audience, leading to a spirited and con s t ru ctive disc u s s i on that continued over dinner and into the evening. That discussion f o rmed the basis for, and essentially became, chapter one of this book I nt e- g ra t i ng Pre v e ntive Law and Therapeutic Jurisprudence: A Law and Psychology Based Appro ach to Law y e r i ng. To g e t h e r, Chapters One, Tw o, and Three pre s e nt the fundamentals of therapeutic jurisprudence, pre v e n- tive law, and the int e g rated theory, with particular emphasis on the practice, unique to the int e g rated theory, of ident i f y i ng psycholegal soft spots. This book, however, is not intended to merely pre s e nt a theory, but, ra t h e r, to pre s e nt potential and actual applications of the principles underlying that t h e o ry, re g a rdless of whether the application of those principles expre s s l y p roceeds under the name therapeutic jurisprudence, pre v e ntive law, or n e i t h e r. To that end, Chapters Four through Fourteen pre s e nt applications of the int e g rated theory as well as related theories, such as collaborative law and aff e ctive law y e r i ng, in the contexts of civil practice, criminal practice, liti g a t i on, and client counseling. However, I believe that the scope of the potential applications of the principles underlying these theories is much bro a d e r than the few topic areas pre s e nted in this volume. My hope is that this book will encourage pract i t i oners, scholars, teachers, and students of the law to take the application of these principles beyond the contexts pre s e nted in this volume and to more fully develop and apply them in such contexts as juvenile law, health law, commercial law, and tort law. If the principles espoused in this book, re g a rdless of whether or not they a re advanced under the names therapeutic jurisprudence or pre v e nt i v e l aw, are to have an impact on legal practice, the principles need to become p a rt of law school education and, ultimately, the broader legal (and social) c u l t u re in which modern pract i t i oners must funct i on. To g e t h e r, Chapter Fifteen and Susan Daicoff s Afterw o rd consider the place of thera p e u t i c j u r i s p rudence in our culture of critique, including the context in which that culture is perhaps most palpable, law school education. My hope, and that of my co-editors, is that the principles embodied in this book will become a part of law school education and that therapeutic con c e rns, a p re v e ntive orient a t i on, and creative problem solving might, there b y, become as much the hallmarks of legal culture as arg u m e nt, debate, and critique. Dennis P. Stolle August 2000