“In These Times of Compassion when Conformity’s in Fashion”: How Therapeutic Jurisprudence Can Root Out Bias, Limit Polarization, and Support Vulnerable Persons in the Legal Process

Authors

Michael L. Perlin, New York Law SchoolFollow

Document Type

Article

Abstract

This Article considers the extent to which caselaw has—either explicitly or implicitly—incorporated the precepts of therapeutic jurisprudence (“TJ”), a school of legal thought that focuses on the law’s influence on emotional life and psychological well-being, and that asks us to assess the actual impact of the law on people’s lives. Two of the core tenets of TJ in practice are commitments to dignity and to compassion. I conclude ultimately that with these principles as touchstones, TJ can be an effective tool—perhaps the most effective tool—in rooting out bias, limiting polarization, and supporting vulnerable persons in the legal process. But this cannot and will not happen until more judges and practicing attorneys understand the potentially reformative (and transformative) role of TJ. My review of some relevant caselaw (both domestic and international)—a review that, to the best of my knowledge, has never previously been undertaken—suggests that an incorporation of TJ principles is by no means a sure thing.

First, I briefly consider the creation and dynamic growth of therapeutic jurisprudence over the past 30 years, looking specifically at the interplay between TJ and values of dignity and compassion. Then, I assess the role of TJ in dealing with issues most central to this Article: bias, polarization, and vulnerability. I next review court decisions—both domestic and from other nations—in which TJ is explicitly mentioned (and in some cases, relied upon). Following this, I look at some other relevant caselaw in which (1) TJ implicitly helped bring about a solution that minimized bias or polarization, or offered support to vulnerable persons or classes; (2) the failure to employ TJ led to decisions that reinforced bias and ignored the needs of those who are vulnerable; or (3) a determination of one’s perspective is needed to determine if one sees the case as “pro-TJ” or “anti-TJ.” I then, in conclusion, offer some modest suggestions as to how TJ can best be employed to ensure decisions that are, optimally, bias free via approaches that improve therapeutic functioning and do not sacrifice civil liberties.

DOI

10.37419/LR.V10.I2.2

First Page

219

Last Page

268

Recommended Citation

Michael L. Perlin, “In These Times of Compassion when Conformity’s in Fashion”: How Therapeutic Jurisprudence Can Root Out Bias, Limit Polarization, and Support Vulnerable Persons in the Legal Process, 10 Tex. A&M L. Rev. 219 (2023).
Available at: https://doi.org/10.37419/LR.V10.I2.2