Therapeutic Jurisprudence and Public Health

Written By: Sam Savage

Published Date: August 27, 2008 Last Edited: August 27, 2008

By Davidovitch, Nadav Alberstein, Michal

INTRODUCTION The development of the therapeutic jurisprudence (TJ) movement in the last decade significantly challenges traditional legal thinking and is relevant to understanding new modes of institutionalizations in law.1 Although substantial research exists on the various interdisciplinary implications of TJ on the law,2 theoretical reflection on the methodologies and underlying principles of TJ as a reform movement is lacking.3 This Article elaborates on the theoretical foundations and methodologies of TJ by referring to another reform movement that challenges an established profession: the public health discipline. Although the concerns and practices of public health have existed since antiquity, it developed into its modern form since the nineteenth century, with the rise of the modern state.4 It joined other social reform movements and entered previously “private sphere” areas such as the family, communities, and education. Also, it offered new perspectives on, and professional challenges to, medical practice and education. There is fertile ground for a dialogue between the disciplines of TJ and public health, which share some general aspirations and concerns. Both challenge well-established professions, TJ that of law and public health that of medicine. Both professions have long histories and, over the past two centuries, they established themselves as highly competent in dealing with the social order.5

TJ scholarship can benefit and be enriched by public health theories, methodologies, and practices in the areas of disease prevention and health promotion. Public health practitioners and academics, in turn, can benefit from a TJ approach to law by correcting their rigid, authoritarian image of the law and by emphasizing the roles of emotions and individual psychology in the promotion of public health law enforcement.

The following section introduces the public health field and the basic principles and methodologies which characterize it. Part II briefly introduces TJ theory and how its goals parallel those of public health. Part III discusses the potential contributions public health can make to TJ, and vice versa. Finally, Part IV presents some theoretical reflections and open questions for future collaboration and research between TJ and public health.

I. PUBLIC HEALTH: BRIEF HISTORY AND GUIDING PRINCIPLES

This section presents briefly the historical roots of public health theory and practice. It will explain the basic tenets of public health including the relations between the state, community, and individuals and the traditional role assigned to the law as one of the prerequisites for public health activities.

A. Public Health

Although many definitions exist for public health, a recent report submitted to the United Kingdom’s Prime Minister defined public health as “the science and art of preventing disease, prolonging life and promoting health through the organized efforts and informed choices of society, organizations, public and private, communities and individuals.”6

The principles of public health, as distinct from those of clinical medicine, are based on a population approach. Additional important components include the following: (1) an upstream focus (primary prevention, health promotion), (2) targeting a range of forces (economic, political, and environmental) that affect populations and cause diseases, and (3) strategically modifying social and environmental variables and promoting public health via active social and political involvement.7 This strategy sharply contrasts with that of “traditional” modern medicine, especially as practiced in hospitals.8

Public health preservation is a function of the complex relationship between the social actions of the state, various institutions, and groups of citizens. Dorothy Porter, a historian of medicine and public health, wrote, “[i]n the modern period, the study of the operation of power in relation to population health necessarily involves an examination of the rise of the modern state as an autonomous political sphere.”9 This involves understanding “different interpretations, made in different periods, of the rights and obligations of citizens within the ‘social contract’ of health between the state and civil society in modern democracies.”10 Therefore, the analysis of public health policies and practices “is concerned largely with social, economic, and political relations of health between classes, social structures and organizations, pressure groups, polities, and [the state].”11

Conceptualizing the interrelationships between the individual and the state, in the context of the state’s public health policies, requires an understanding of the socialphilosophical basis of the entire relationship between the individual and the state. Thus, for example, the liberal approach focuses on the right of an individual to defend her freedom in the face of coercive state actions performed in the interest of the greater good. On the other hand, a communitarian approach views public health care as part of community welfare.12 The authority of the state in the area of public health is broad, permitting extensive interventions in the private sphere. Hence, critics view the field of public health care as open to exploitation by the state, which can engage in coercive practices.13 The health domain is a potential area for hegemonic control that tramples individual rights to enforce what it perceives as proper, “normal” behavior.

The perception and interpretation of disease, both by the patient and by her environment, are defined by social and cultural contexts. State actions for maintaining public health and security are applied to, and sometimes even forced upon, individuals, either singularly or because they belong to certain social groups.14 As a result, ethical questions in the field of public health must relate to both the individual and public dimensions. Furthermore, the unique socio- historical relationship under which public health acts are performed by state authorities must be examined. Such multifaceted analysis is necessary when dealing with public health responses for specific diseases, as well as for injuries caused by state actions.15

B. Public Health Law

Law is interwoven into each segment of public health care described above.16 It defines the boundaries for the activities of the public health authorities, the limits to their power, and the restrictions placed upon them in their array of relationships with individuals or social groups. Law determines the balance between private interests and public welfare. With differing degrees of success, the state attempts to use law to construct and impart lifestyle norms and healthy, safe behavior.17 To a great extent, therefore, the various institutions of the law constitute a central arena for public discourse on public health measures.

Although a wealth of literature exists on health law, it is concerned mainly with medicine and personal health care services, and issues such as clinical decision making, delivery, organization, and finance. Public health law has a different focus. Albeit personal medical services are an important part of community health, medical care is only one contributor to health, and probably not the major one. Public health law shares conceptual terrain with the fields of law and medicine, but is a distinct discipline. American public health law theorist Lawrence O. Gostin defined public health law as

the study of the legal powers and duties of the state to assure the conditions for people to be healthy (e.g., to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the protection or promotion of community health.18

Accordingly, Gostin claims that a model public health statute should reflect at least three principles: (1) Duty: “the law should impose duties on government to promote health and well-being within the population;” (2) Power: “the law should afford public health authorities ample power to regulate individuals and businesses to achieve the communal benefits of health and security;” and (3) Restraint: “the law should restrain government from overreaching in the name of public health.”19

Traditionally, public health law was directed largely at communicable diseases and other externalities with negative health impacts, such as pollution.20 Recently, the main impetus in the public health law reforms of various countries was that of enforcing public health measures: quarantine in the case of SARS21 and other infectious diseases, or enforcement of environmental standards in the case of polluting industry.22 Although this level of enforcement is crucial for protecting public health, there are alternatives to the law that are more in line with the archetypal public health principles of promoting good health and civic participation in advancing public health. As such, the integration of TJ principles into public health law can only contribute to a more cooperative mode of operation in this field, as will be discussed later. II. THERAPEUTIC JURISPRUDENCE: BRIEF HISTORY AND GUIDING PRINCIPLES

The TJ school of law introduced ideas of care and therapy into legal theory and practice. TJ emerged in the area of mental health law in response to various aspects of the then existing mental health law with its seemingly anti-therapeutic effects.23 Soon thereafter, however, TJ found applicability in other areas of the law-criminal, juvenile, family, personal injury-and has emerged as a therapeutic approach to the law in general.24

The TJ perspective regards the law as a social force that affects behaviors and consequences, the latter of which can be either therapeutic or anti-therapeutic. “Therapeutic Jurisprudence concentrates on the law’s impact on emotional life and psychological well-being. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or antitherapeutic consequences.”25 Promoting more therapeutic goals and perceiving law as a helping profession are important goals of the movement. TJ scholars declare that it aims to supplement rather than criticize the existing regimes of law.26 The principles of TJ have already been applied in a wide variety of legal environments, including preventive law, mental health law, problem-solving courts, and legal counseling. They inspire new pedagogies of legal education27 and therapeutic manuals for judges,28 and they are broadly applicable to legal rules, legal procedures, and legal actors.29 In the case of problem-solving courts, TJ is suggested as the supporting theory for the special practice of judges, which is very different from the adversarial mode of the regular court.30

The emphasis of TJ on interdisciplinary teamwork among court staff, social workers, and lawyers in problem-solving courts, and on taking a holistic, coordinated approach to criminal offenders, finds parallels in current interdisciplinary approaches to patient care and to public health in general. TJ and the new problem-solving courts actually represent a public health approach to the problems of juvenile delinquency, drug addiction, domestic violence, and mental illness.31

III. THE DIALOGUE BETWEEN THERAPEUTIC JURISPRUDENCE AND PUBLIC HEALTH

There are a few possible interactions between TJ and public health. This section analyzes the potential contribution of public health to TJ theory and practices and, from the other side, examines how TJ can supplement public health studies and public health law practice in particular. It concludes with a preliminary discussion of potential academic programs which may integrate TJ with public health.

A. Contribution of Public Health to Therapeutic Jurisprudence

A broad perception of public health law dovetails with a TJ approach to law, which supports promoting the well-being of the subjects of the law.32 Yet, according to common perceptions, public health law operates from above, focusing on the general population as the target. TJ, on the other hand, focuses on the individual activities of the legal actors and mainly examines rules and legal procedures as they affect concrete situations.33 In terms of prevention, TJ focuses on particularized counseling that considers psychological soft points and well-being in general.34 Both approaches, however, still share an interest in promoting well- being and in preventing disease.

The main emphasis of TJ scholarship, in its various manifestations, is on individual psychology and mainly on the interpersonal interactions among legal practitioners.35 TJ is actually defined as focusing “on the law’s impact on emotional life and psychological well-being.”36 The emphasis of public health scholarship, on the other hand, is on the community at large, trying to prevent diseases and to promote the welfare of society in general, with a strong emphasis on a population approach.37 Applying the focus, target, and strategy of public health to TJ scholarship enables a more “public” orientation of TJ that transcends the interpersonal level.

1. Upstream Focus: Primary Prevention, Health Promotion

How will primary prevention appear when law, and not medicine, is the guiding discipline? This raises the question whether the prevention of legal disputes is a legitimate goal for TJ to promote, especially when the disputes are considered crucial for the development of society, such as constitutional controversies and human rights debates. Initially, in contrast to medicine, which is primarily concerned with curing and preventing diseases, the law functions as both regulator and educator-not only as a means to resolve and prevent disputes.38 Following the complex functions of the law and their intersection, prevention may be relevant only when other functions of the law are not compromised. Perhaps prevention is compatible with the basic definition of TJ, which declares that its therapeutic goals are not meant to trump other, more conventional goals, and which aims to enrich legal discourse and to avoid injustice.39 On a deeper level, learning to manage social conflicts while minimizing the anti-therapeutic consequences of the process may contribute to more effective functioning of the law in all its manifestations, including its regulative and expressive embodiments. In other words, TJ should aspire to manage legal conflicts in ways that maximize the positive elements of the conflict while minimizing the psychological distress conflict creates.

What does primary prevention mean when we discuss preventing unnecessary disputes or minimizing their antitherapeutic effects? On a very basic level, it seems different from “preventive law” as traditionally understood in legal scholarship. When prevention is defined as “preventing legal risks from becoming legal problems”40 or as securing “more certainty as to legal rights and duties,”41 the intersection between TJ and preventive law is limited to the lawyer’s role in interviewing a client. “It emphasizes the lawyer’s role as a planner and proposes the careful private ordering of affairs as a method of avoiding the high costs of litigation and ensuring desired outcomes and opportunities.”42 When prevention includes a broader focus on group behaviors and public goals, as in a public health perspective, other legal players such as judges and educators should be involved in the therapeutic mission. Prevention in this public sense includes legislation and education. In criminal law, it might include involvement of problem solving courts in educational campaigns and in advising legislative reforms. In civil cases, it might include recommendations for a new procedural framework for processing tort litigation or other areas of law where TJ can be applied.

2. Targeting Economic, Political, and Environmental Forces that Affect Populations and Cause Disease

When we try to manipulate the environment to prevent unnecessary legal conflicts, the significance of cultural disputing behavior comes to mind. Legal disputes are social constructs reflecting unanswered claims.43 These claims are based on the perceived gaps between legal norms and injurious behavior.44 Intervention aimed at shaping forces that affect legal disputes thus requires more primary enforcement of legal norms, such as environmental regulation, safety rules in public facilities, and so forth. Better compliance with the law and increased normative behavior will help to reduce legal claims and unnecessary disputes. Preventing disputes is also achievable by changing disputing behaviors and educating people to tolerate deviation from the social norms.45 But such a goal will not be recommended from a broader perspective which aspires to address the functions of law in their multiplicity, especially the regulative and educative ones. We can educate a person to learn to minimize the anti-therapeutic effects of a coercive legal rule, but we would not like to do so since sustaining this rule will be worse and anti-therapeutic in the long term, or even just immoral.

3. Strategically Modifying Social and Environmental Variables and Social and Political Action

Modifying social and environmental variables where legal disputes are concerned is related to the broader interest of affecting cultural behavior. It is reasonable to assume that in a liberal, modern society, changing disputing behavior will not include challenging individual assumptions and will not entail transforming society to become more collectivist and harmonious. Therefore, more sophisticated techniques for instilling therapeutic concerns into individual behavior should be considered. Ethically oriented public health discussions on the relation between the individual and the community are relevant here. The study and teaching of modern mediation, with its emphasis on problem solving, depersonalization, the interests of the parties involved, and creative brainstorming, can be used as a therapeutic means to manage hard legal conflicts. Educating people to deal with disputes creatively while developing their dispute resolution skills can be suggested as a starting point for modifying disputing behavior.

On another level, public health literature can help TJ by providing methodologically improved tools to enhance compliance and to measure the effectiveness of TJ interventions. The emphasis of public health on research methodologies, as expressed in epidemiology and other social science approaches, can be adapted to TJ research. Multi-disciplinary teams working on the evaluation of public health interventions can serve as a model for TJ.

B. Contribution of Therapeutic Jurisprudence to Public Health

The design of public health administration and its policy formation have generally been rooted in a classic perception of law as an authoritative mechanism based on rules and coercion. Traditionally, compliance with public health measures was promoted through legislation and strict enforcement mechanisms and focused on detailed regulations to govern each branch of public health activities.46 This emphasis on enforcement through coercion and black letter law still prevails in some areas of public health development today. 47 In preventing diseases and monitoring risk behavior, public health scholarship is very much aware of the problem of compliance with medical norms and, as such, sophisticated methods of persuasion and education are employed to convey its messages.48 When approaching the legal field, public health providers adopt a very rigid perception of legal norms.49 According to this perception, legal methods are considered the ultimate measure to achieve compliance and less attention is allotted to the problems of compliance with legal norms, which are no less prevalent in public health than in other legal fields. Indeed, the institutionalization of a TJ approach in public health theory and practice favors the use of soft power methods to promote compliance, which need not rely only on external motivation as exemplified in legal norms.50 Instead, TJ promotes alternative forms of conflict resolution (i.e., mediation and arbitration) and encourages more care and attentiveness among public health practitioners, especially for those who are responsible for enforcing public health regulations.

Since TJ has always been preoccupied with encouraging a more therapeutic and functional version of law, the introduction of TJ philosophy into public health law practice, training, and scholarship is only natural. A TJ emphasis in public health will strengthen the interpersonal level that exists in any enforcement mechanism.

C. Preliminary Questions Concerning a Public Health Approach to Law and a TJ Approach to Public Health

Can TJ be described as a public health approach to law? Can we imagine a future TJ professional as a graduate of a TJbased academic education that is considered a branch of public health? Perhaps we can envision the professionalization of TJ to an MPH-like program in law schools. Approaching TJ as a serious discipline might mean enriching it with public health principles and methodologies. Maybe a TJ approach can function as an alternative to how law is currently taught and applied.

The exchange between the disciplines can be enhanced by adopting a broad perspective of public health (and of its goals, missions, and field of action) combined with a broad perspective of law as an interdisciplinary arena. According to our claim, the broadening of the concept of public health enables a deeper dialogue between TJ and public health, and collaborative projects can be imagined and planned. Concurrently, the dialogue between the disciplines can continue, focusing on the transformation in legal thought in the past century and the shift from a narrow to a broad perception of law. As the legal field becomes more diverse and interdisciplinary in its nature, the interest in TJ and public health is growing.

Just as the interdisciplinary nature and maturity of the field of law today can benefit public health studies, which have been addressing questions of individual-state tensions for hundreds of years,51 TJ scholarship can benefit from the in-depth public health discussion of paternalism.

As discussed above, public health scholarship discusses the existing, basic tension between the individual and the community.52 Introducing this discussion into TJ studies may enrich the existing debate on the application of therapeutic measures, which is currently limited to addressing the problem of paternalism only in particular cases.53

IV. INTERDISCIPLINARY EXCHANGES: LEVEL OF DIALOGUE AND INTERACTIONS

The legal field has been steadily moving in an interdisciplinary direction in recent decades, transforming much of the academic work into diverse spheres of “law and . . .” writing.54 Intersections between law and other academic disciplines usually foster several opportunities for dialogue and exchange. In this Article we use the existing modes of interdisciplinary collaboration in law55 to draw preliminary outlines for developing a public health approach to TJ and vice versa. An intersection between TJ and public health represents different levels of dialogue and opportunity for interdisciplinary exchanges.

Certain classic public health discussions can be included in TJ studies and enriched by TJ principles. Issues of malpractice, apologies in public health, prevention, and compliance can be studied within a public health curriculum or a TJ seminar, and each discipline can use materials from the other to enrich its case studies and reading materials. Such a mode of exchange between the two fields produces a very basic form of dialogue that preserves a shallow level of interaction between scholars in both disciplines. In fact, it is currently the only mode of interaction between public health and TJ and, as such, this Article aims to promote a deeper exchange between the two disciplines.

The study of TJ and public health as a unique interdisciplinary mixture involves more than a curricular exchange of case studies that invoke mutual interest. When a thorough study of the engagement of these disciplines is considered, a broader framework of collaboration between the disciplines can be imagined. Using the methodologies and principles of public health when applying TJ studies can be one way of collaboration. Establishing graduate programs defined as specialized TJ studies tracks, which are dedicated to public health, or building public health graduate studies tracks that educate TJ professionals, as suggested above, may be the beginning of a broader dialogue. Intensive dialogue focusing on the guiding principles of TJ and public health, that highlights their similarities and differences, can more fully engage the two fields of study. This would produce fertile projects of collaboration. The juxtaposition of TJ and public health can help reframe the basic assumptions of each field.

Greater interaction between TJ and public health, which may symbolize the end of the dialogue and the beginning of assimilation, entails understanding TJ as a branch of public health or vice versa. Since public health is a more established profession, however, in the assimilation scenario, TJ would most likely be incorporated as a branch of public health and not the opposite. Under this perception TJ may promote well-being in a manner similar to that of public health scholarship, but this possibility is still only a prospect for the distant future.

CONCLUSION

The fertile dialogue between TJ and public health, as outlined in this Article, has fostered some preliminary links between the two approaches.

First, both TJ and public health can be perceived as reform movements that challenge basic tenets in medical and legal education and practice. They are both interested in developing alternative views of these professions.

Second, the broad formulae of both TJ and public health are concerned with promoting the well-being of the community: public health addresses disease prevention and health promotion, while TJ addresses the prevention of psychological discomfort and of unnecessary legal disputes.

Third, both TJ and public health strive to prevent what their original disciplines consider their lifeblood: legal disputes and medical diseases. While in public health the focus is on prevention through referring to the public at large, in TJ the focus is on individual conflicts. Each approach, then, can be enriched by adopting the focus, either individual or public, of the other.

Fourth , TJ focuses on individual psychology and may be enriched by a broad public focus, with limitations of preserving the expressive elements of the law. Public health may benefit from an approach which promotes negotiation, therapeutic contracts, and less coercive legal measures.

Fifth , public health methodologies can help TJ encourage behaviors with therapeutic consequences and measure the effectiveness of TJ interventions. At the same time, TJ can help public health to encourage more compliance through emphasis on the interpersonal and psychological well-being of the subjects involved.

In summary , there are several possible levels of interaction between TJ and public health. This Article calls for a sincere approach that supports intense dialogue in which each discipline borrows methodologies and sensitivities from the other-an approach in which mutual influences and transformations are considered desired outcomes of the interaction.

1. LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE (David B. Wexler & Bruce J. Winick eds., 1996) [hereinafter LAW IN A THERAPEUTIC KEY]; PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HELPING PROFESSION (Dennis P. Stolle, David B. Wexler & Bruce J. Winick eds., 2000); JUDGING IN A THERAPEUTIC KEY: THERAPEUTIC JURISPRUDENCE AND THE COURTS (Bruce J. Winick & David B. Wexler eds., 2003) [hereinafter JUDGING IN A THERAPEUTIC KEY]. On institutionalization of ADR, see Judith Resnik, Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication, 10 OHIO ST. J. ON DISP. RESOL . 211 (1995).

2 . See LAW IN A THERAPEUTIC KEY, supra note 1.

3. For a preliminary discussion of some theoretical dilemmas, see Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to Ponder, in LAW IN A THERAPEUTIC KEY, supra note 1, at 763-94. For a reasoned refusal to define “therapeutic” for purposes of TJ, see David B. Wexler, Reflections on the Scope of Therapeutic Jurisprudence, 1 PSYCHOLOGY, PUBLIC POLICY AND LAW 220 (1995). Wexler prefers to keep the definition of the term very flexible for purposes of promoting research. Id. at 223. He still provides a preliminary definition which speaks about “[a] focus on the mental health and psychological aspects of health,” and adopts Slobogin’s definition above: “the use of social science to study the extent to which a legal rule or practice promotes the psychological or physical well-being of the people it affects.” Id. at 223-24. 4. On the connection between public health care and the rise of the welfare state in such contexts, see DOROTHY PORTER, HEALTH, CIVILIZATION AND THE STATE: A HISTORY OF PUBLIC HEALTH FROM ANCIENT TO MODERN TIMES (1999).

5. There is ample literature on the history and sociology of the professions. One useful survey and analysis is by ANDREW ABBOTT, THE SYSTEM OF PROFESSIONS: AN ESSAY ON THE DIVISION OF EXPERT LABOUR (1988). See also THE FORMATION OF PROFESSIONS: KNOWLEDGE, STATE, AND STRATEGY (Rolf Torstendahl & Michael Burrage eds., 1990); KEITH M. MACDONALD, THE SOCIOLOGY OF THE PROFESSIONS (1995); ELIOT FREIDSON, PROFESSIONALISM: THE THIRD LOGIC (2001).

6. DEREK WANLESS, SECURING GOOD HEALTH FOR THE WHOLE POPULATION 23 (2004).

7. For a recent general overview of public health characteristics, see INSTITUTE OF MEDICINE, THE FUTURE OF THE PUBLIC’S HEALTH IN THE 21ST CENTURY (2003).

8. On the tensions between public health and clinical medicine, see Allan M. Brandt & Martha Gardner, Antagonism and Accommodation: Interpreting the Relationship Between Public Health and Medicine in the United States During the 20th Century, 90 AM. J. OF PUB. HEALTH 707 (2000).

9. PORTER, supra note 4, at 5.

10. Id.

11 . Id. at 4.

12 . See, e.g., MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 68-91 (1983).

13. PORTER, supra note 4, at 128-46, discussed the issue of coercion and resistance in Chapter 8: The Enforcement of Health and Resistance. Traditional issues of content included public health measures, such as vaccination, quarantine, water fluoridation, medical examination of immigrants, as well as forced sterilization and other eugenic measures. See JAMES COLGROVE, STATE OF IMMUNITY: THE POLITICS OF VACCINATION IN TWENTIETH-CENTURY AMERICA (2006); see also JOHANNA SCHOEN, CHOICE AND COERCION: BIRTH CONTROL, STERILIZATION AND ABORTION IN PUBLIC HEALTH AND WELFARE (2005); ALEXANDRA MINNA STERN, EUGENIC NATION: FAULTS AND FRONTIERS OF BETTER BREEDING IN MODERN AMERICA (2005); HOWARD MARKEL, QUARANTINE! EAST EUROPEAN JEWISH IMMIGRANTS AND THE NEW YORK CITY EPIDEMICS OF 1892 (1997); AMY L. FAIRCHILD, SCIENCE AT THE BORDERS: IMMIGRANT MEDICAL INSPECTION AND THE SHAPING OF THE MODERN INDUSTRIAL LABOR FORCE (2003).

14. These groups can be immigrants, ethnic minorities, or indigenous populations in colonial regimes. See, e.g., PORTER, supra note 4; STERN, supra note 13; MARKEL, supra note 13; FAIRCHILD, supra note 13.

15. For an analysis of state reaction to past traumatic public health events, see Nadav Davidovitch & Avital Margalit, Public Health, Law, and Traumatic Collective Experiences: The Case of Mass Ringworm Irradiations, in TRAUMA AND MEMORY: READING, HEALING, AND MAKING LAW (Austin Sarat, Nadav Davidovitch & Michal Alberstein eds., 2008).

16. On the intimate relationship between the law and public health care, see LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT (2000).

17 . Id. at 145-72.

18 . Id. at 4.

19 . See Lawrence O. Gostin, Public Health Law Reform, 91 AM. J. OF PUB. HEALTH 1365, 1365 (2001).

20 . See GOSTIN, supra note 16, at 85-109.

21 . See Lawrence O. Gostin, Ronald Bayer & Amy L. Fairchild, Ethical and Legal Challenges Posed by Severe Acute Respiratory Syndrome: Implications for the Control of Severe Infectious Disease Threats, 290 JAMA 3229 (2003).

22 . See GOSTIN, supra note 16.

23. Mae C. Quinn, An RSVP to Professor Wexler’s Warm Therapeutic Jurisprudence Invitation to the Criminal Defense Bar: Unable to Join You, Already (Somewhat Similarly) Engaged, 48 B.C. L. REV. 539, 543- 46 (2007); DAVID B. WEXLER, MENTAL HEALTH LAW: MAJOR ISSUES 11-57 (1981); Bruce J. Winick, Competency to Consent to Voluntary Hospitalization: A Therapeutic Jurisprudence Analysis of Zinermon v. Burch, in ESSAYS IN THERAPEUTIC JURISPRUDENCE 83 (David B. Wexler & Bruce J. Winick eds., 1991).

24. JUDGING IN A THERAPEUTIC KEY, supra note 1, at 7.

25 . See David B. Wexler, International Network on Therapeutic Jurisprudence, http://www.law.arizona.edu/depts/upr-intj (last visited Mar. 7, 2008) [hereinafter Therapeutic Jurisprudence website].

26. For a critical discussion of this claim, see Michal Alberstein, Therapeutic Keys of Law: Reflections on Paradigmatic Shifts and the Limits and Potential of Reform Movements, Bruce J. Winick and David B. Wexler eds., Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts, 39 ISRAEL L. REV. 140 (2006) (book review).

27 . See Andrea Kupfer Schneider, Building a Pedagogy of Problem- Solving: Learning to Choose Among ADR Processes, 5 HARV. NEGOT. L. REV . 113 (2000).

28 . See SUSAN GOLDBERG, NATIONAL JUDICIAL INSTITUTE, JUDGING FOR THE 21ST CENTURY: A PROBLEM-SOLVING APPROACH (2005), available at http://www.nji.ca/nji/Public/documents/Judgingfor21scenturyDe.pdf.

29 . See Therapeutic Jurisprudence website, supra note 25.

30. See JUDGING IN A THERAPEUTIC KEY, supra note 1.

31 . See Charity Scott , Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts, 25 J. LEGAL MED. 377 (2004) (book review).

32. See also the discussion of Slobogin, supra note 3, who reaches the conclusion that the reasonable interpretation of TJ’s notion of “therapeutic” is the promotion of well-being.

33. On micro emphasis of TJ on “the subtle impact of law on therapeutic outcomes,” see Wexler, supra note 3, at 229-36.

34 . See Dennis P. Stolle et al., Integrating Preventive Law and Therapeutic Jurisprudence: A Law and Psychology Based Approach to Lawyering, in PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HELPING PROFESSION 5 (Dennis P. Stolle, David B. Wexler, & Bruce J. Winick eds., 2000); Andrea Kupfer Schneider, The Intersection of Therapeutic Jurisprudence, Preventing Law, and Alternative Dispute Resolution, 5 PSYCHOL. PUB. POL’Y & L. 1084 (1999).

35. See, for example, the TJ approach to client counseling as described in Schneider, supra note 34.

36 . See Therapeutic Jurisprudence website, supra note 25.

37 . See supra Part I (describing public health principles).

38. For a basic description of the functions of law, see Steven D. Smith, Reductionism in Legal Thought, 91 COLUM. L. REV. 68 (1991).

39 . See Therapeutic Jurisprudence website, supra note 25.

40 . California Western School of Law, Nat’l Center for Preventive Law, http://www.preventivelawyer.org/main/default.asp (last visited Mar. 7, 2008).

41. Stolle et al., supra note 34, at 6.

42 . Id.

43. Richard E. Miller & Austin Sarat, Grievances, Claims and Disputes: Assessing the Adversary Culture, 15 L. & SOC. REV. 525 (1980-1981) (defining a dispute as a social construct which exists mainly in the eye of its beholder).

44. William L. Felstiner, Richard L. Abel & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, 15 L. & SOC. REV. 631, 631 (1980-1981). According to the authors, disputes develop through three stages: naming, when an injurious experience becomes perceived; blaming, when an attribution of responsibility is given to someone and a grievance is created; and claiming, when the claim is brought before the other side and becomes a dispute. Id.

45. An illustration of a TJ position which calls for a modification of behavior to tolerate a non progressive rule is the so-called “don’t ask, don’t tell” antigay policy in the U.S. military. See 10 U.S.C. [section] 654 (2000); see also Victor C. Romero, Crossing Borders: Loving v. Virginia as a Story of Migration, 51 HOW. L.J. 53, 69-70 (2007) (mentioning the statute by its commonly known name, “don’t ask, don’t tell”). The offer is to learn to live with this rule while minimizing its anti-therapeutic consequences through training for discrete responses.

46 . See PORTER, supra note 4.

47 . See GOSTIN, supra note 16.

48. On the social and political aspects of education and persuasion in public health, including their tension with coercion in the case of compulsory vaccination, see COLGROVE, supra note 13.

49. For such a typical example of how public health law should be implemented, see INSTITUTE OF MEDICINE, supra note 7. The report calls for public health law reform, which is directly tied to issues of preparedness and law enforcement (as in the case of pandemic influenza, SARS). This is how it is presented in their list of the essential public health services: “Enforce laws and regulations that protect health and ensure safety.” Id. at 32. No other lawrelated alternatives are mentioned. Id.

50. For a systematic overview and discussion of the bases of social power and the relative effectiveness of soft powers over coercive influence, see Bertram H. Raven, A Power/Interaction Model of Interpersonal Influence: French and Raven Thirty Years Later, 7 J. SOC. BEHAV. & PERSONALITY 217 (1992).

51. For discussions of paternalism law, see, for example, Cass R. Sunstein & Richard H. Thaler, Libertarian Paternalism is Not An Oxymoron, 70 U. OF CHI. L. REV. 1159 (2003); Anthony T. Kronman, Paternalism and the Law of Contracts, 92 YALE L. J. 763 (1983).

52 . See supra Part I (discussing public health definition).

53 . See John Petrila, Paternalism and the Unrealized Promise of Essays in Therapeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY, supra note 1, at 685. Petrila claims that in the case of mental health law the editors ignore the growing challenge to the professional hegemony of mental disability law and treatment. Id. at 688. They ignore criticism of the existing therapeutic values in the field; they do not answer the question who decides what constitutes a therapeutic outcome; they assume too easily that researchers, practitioners, and lawyers working together are capable of defining and implementing therapeutic values. Id.

54. For a description of the interdisciplinary approach which characterizes legal academia, see DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (1997).

55. For a discussion of the various ways in which law and literature intersect in legal writing, see LAW AND LITERATURE: TEXT AND THEORY (Lenora Ledwon ed., 1996). Nadav Davidovitch* and Michal Alberstein**

* Nadav Davidovitch, M.D., M.P.H, Ph.D. is a senior lecturer, Department of Health Systems Management, Faculty of Health Sciences, Ben Gurion University, Israel and adjunct lecturer, Center for the History and Ethics of Public Health, Mailman School of Public Health, Columbia University, New York.

** Michal Alberstein, LL.M., S.J.D. is a senior lecturer, Faculty of Law, Bar Ilan University. We would like to thank David Wexler for his comments as well as for his constant support, advice, and friendship. An earlier version of this paper was presented at the International Association of Law and Mental Health Annual Conference, Padua, Italy, June 2007.

Comments

comments