Academic journal article Fordham Urban Law Journal

Therapeutic Jurisprudence and Cognitive Complexity: An Overview

Academic journal article Fordham Urban Law Journal

Therapeutic Jurisprudence and Cognitive Complexity: An Overview

Article excerpt


   I have no doubt that if the records of the time of ... Hammurabi, could be 
   completely restored, we should learn that in the third millennium before 
   Christ men were complaining about the inefficiency of legal procedure, and 
   ... if any of you are destined in the year 7000 A.D.... to examine and 
   write a monograph ... upon the condition of human law courts, you will be 
   obliged to report ... that mankind still exhibits the same discontentment 
   with its methods of adjusting human differences that you know today. (1) 
   --Judge Learned Hand 

These words of Judge Learned Hand to the New York City Bar Association resonate with increasing vigor eighty years after they were first delivered. The traditional underpinnings of the American legal system are under constant pressure to produce outcomes consistent with everyday life or "common sense." (2) The system is criticized for failing to incorporate "real world" procedures into legal education and giving slavish devotion to a set of calcified rules that isolate the contact between the litigation participants and the legal system. (3) This perceived gap between legal conclusions and life experience has been partially attributed to a system of legal education that produces professionals prepared primarily for adversarial litigation. (4)

Some lawyers and judges remain untrained, unprepared, or unwilling to deal with litigants' life experiences. Segments of the litigants' lives not directly relevant to the litigation are excluded from consideration. Post-litigation consequences to litigants' lives are similarly omitted. (5) Also neglected are individuals who are not parties to the litigation, but who are of importance to the incident that gave rise to the litigation. (6) Therapeutic jurisprudence attempts to take all of these factors into account.

Among the many ideas that have become deeply rooted in the existing legal system is the view that a court should be a relatively passive decision maker, utilizing existing law found in statutes or case law precedent to fashion an applicable remedy. Courts are specifically discouraged from considering the emotional context of a particular case or the immediate post-decision future of the parties. (7) However, the legal system cannot afford to ignore these considerations.

The idea that the judiciary has a separate and independent role in governance has been, ab initio, part of American jurisprudential fundamentalism. (8) Alexander Hamilton, arguing for the adoption of the Federal Constitution, noted the importance of judicial independence and public support for the legal system:

   Considerate men of every description ought to prize whatever will tend to 
   beget [integrity and moderation] in the courts; as no man can be sure that 
   he may not be tomorrow the victim of a spirit of injustice, by that he may 
   be a gainer today. And every man must now feel that the inevitable tendency 
   of such a spirit is to sap the foundations of public and private confidence 
   and to introduce in its stead universal distrust and distress. (9) 

Even the decisional independence of judges--their ability to decide cases free from threats of physical violence, financial ruin, or political pressure, is today severely tested. This is evidenced by incidents involving former New York Federal District Judge Harold Baer, Jr. and former Tennessee Supreme Court Justice Penny White. Baer and White were both driven from their benches because of decisions they made in high profile criminal matters that appeared before their respective courts. (10) Following Justice White's subsequent loss in her retention election, Tennessee Governor Don Sundquist surprisingly remarked, "Should a judge look over his shoulder [in making decisions] about whether they're going to be thrown out of office? I hope so." (11)

Less common are instances of judges leaving the bench because their personal beliefs conflicted with the strictures of the law. …

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