A Proposal for Basic and Brief TJ Education: Promoting Academic, Ethical, and Vocational Objectives
David B. Wexler*
I'm really pleased to have received an invitation from Emma Jones and Anna Kawalek, co-chairs of the UK chapter of the International Society for Therapeutic Jurisprudence ISTJ), to write a brief introduction to this exciting issue devoted to therapeutic jurisprudence (TJ).
It comes at a particularly important point for me as I have, in my last two book chapters, basically brought together and virtually put a bow on my principal and long- term academic interest: playing with and refining the original TJ conceptual framework of the law itself as a therapeutic agent, and "law" consisting of Legal Rules, Legal Procedures, and Roles of Legal Actors 1 .
This new stage is gratifying and exciting, but it is at the same time exceedingly frustrating: now, a crucial need is to promote and implement the TJ perspective, and this many- pronged task is dependent on the TJ community as a whole. I am merely one cog in the wheel, and I find myself flailing around a bit instead of having a sedentary scholarly focus.
I am an Honorary President of the ISTJ, intltj.com, and the Society is of major importance in the task of both promoting and implementing TJ. We are working hard to populate its website with links to the crucial TJ resources, such as the TJ listserv 2 , an excellent Blog (managed by Australian Magistrate Pauline Spencer) 3 , a Facebook group 4 , and an important cumulative Bibliography 5 . Beyond that, the ISTJ releases a monthly Newsletter (TJ News) to keep members updated on new developments, publications, conferences, etc. And importantly, it has created a number of geographical chapters (France, Iberoamerica, Ireland, Israel, Japan, Nepal, North America, Oceania, Puerto Rico, and UK), with more on the way. A number of these chapters have already held in-person meetings, and I am now preparing to create a group of members to serve as persons willing to give occasional Skype or Zoom lectures to interested chapters.
TJ in Legal Education
But my principal personal interest and challenge at the moment is how we might introduce TJ in legal education. There are a sprinkling of TJ courses, clinics, or course components currently available (and I am privileged to teach some such elective courses/seminars at the University of Puerto Rico) 6 . But the struggle of injecting TJ into a law curriculum has been well-stated in the UK context in an important article by Emma Jones and Anna Kawalek in a recent TJ- themed issue of the International Journal of Law and Psychiatry 7. They underscore the current and expected increased tension between vocational goals and academic/ethical considerations, and how a proposed TJ offering would struggle in that atmosphere.
Despite its local context, many of the points made by Jones and Kawalek resonate strongly with the difficulties of devoting time and resources to TJ in other jurisdictions--including Puerto Rico, where, during a mandatory faculty meeting devoted to the urgency of attending to matters of respect /inclusion/appreciation of difference in the classroom, TJ awareness was mentioned as a meaningful partial antidote; in the aftermath of the meeting, I emailed the Dean and the relevant teaching faculty about the importance--and ease-- of introducing a basic TJ orientation into the required first- semester course of Legal Profession.
My proposal (which I hope will in due course receive consideration by the relevant faculty) is exceedingly modest: in fact, it would consume merely a single class session (of approximately an hour and 45 minutes). And, it proposes pre-class student preparation that includes viewing a 20 minute TJ video 8 and reading two ten-page short essays 9. The assignment sheet would also include a handout listing basic resources (already cited above) that students can refer to in the future and hopefully use (ISTJ website and membership-free for students--, TJ Blog, Facebook group, and a comprehensive and cumulative TJ Bibliography that indicates a sample of the multiple legal areas where substantial TJ scholarship exists-employment law, criminal law and procedure, immigration law, disability law, family law, trusts & estates, etc.).
Is this proposal so modest that, if implemented, it will likely get drowned out by all the other material covered in a Legal Profession class? Perhaps, but I don't really think so. Why not?
Because, in my introductory chapter-The DNA of Therapeutic Jurisprudence--- in the recent Stobbs, Bartels and Vols (2019) TJ methodology book 10 , I noted that:
"TJ is in itself a method-a method of thinking-more so than it is a specific body of knowledge. TJ is not a packet of materials one simply learns and then applies".
I also stressed that TJ has now culminated in "a suggested integrated approach to facilitate the Therapeutic Design and Application of the Law (TDL and TAL)" 11 . TDL looks at the legal structure or "bottles" (rules and procedures) and TAL looks at the "roles" of legal actors (practices and techniques or "liquid" or "wine"). TDL is solid "law", though we often look at its provisions to see if they are designed to allow good TJ practices. Those TJ practices-like voice, respect-are derived principally from psychology, criminology, social work 12 .
The idea of this integrated approach is to understand the relationship between TDL and TAL, in the hope that the TJ method will encourage others to "think TJ" in their own areas of interest. Mainly, the perspective this far has been applied to the criminal law and procedure area, but it is now expanding to juvenile law 13 , family law 14 , even to public housing law 15 , and beyond.
A very brief introduction to TJ, then, should guide future lawyers on how to think about the law and its application, and this process is a clear merging of vocationally useful material with an appreciation of the contributions of social science to the development of law and lawyering 16 .
Psycholegal Softspots and Office Counseling
I want to mention one additional twist -another TJ simple "method of thinking" -- that looks again to the "roles" of lawyers-this time in an office-counseling context rather than in courtroom work, and something that would, I suppose, be of special interest to solicitors. The second short reading (presented at a Monash University Non- Adversarial Justice conference) mentioned in my email message to my Dean is a decade-old paper that looked to legal planning and to what I referred to as "psycholegal softspots" and strategies for dealing with them 17 ---basically, the psychological bag and baggage that will often accompany legal measures: matters that are ,technically, not legally determinative but which can arouse strong emotional reactions: family friction, anger, stress, embarrassment , resentment, jealousy, sibling rivalry, and the like. TJ urges lawyers to be attentive to these factors and to offer to engage the willing client in a conversation-some would say "zealous counseling" 18 --to explore how these matters might be avoided or at least reduced.
It is crucial to note that the lawyer is decidedly not here acting as a psychologist, but as a lawyer experienced in working with clients under stress, and interested in and sensitive to interpersonal aspects of legal practice and sensitive communication. Of course, this is 100% the client's choice: whether or not to engage in the conversation and to take the steps that may seem, in the aggregate, helpful to avoid the friction. The appropriateness of this role for a lawyer should be evident from these examples:
a) A mother left a broken-down house to her struggling daughter and not to her accomplished son. The son was livid and perhaps an explanatory letter could have cleared the air and prevented the son's reaction, which was based on his feeling that the distribution underscored the mother's greater love for the daughter.
b) Parents dividing their estate evenly among their three children but giving two of them an outright inheritance while putting in trust the amount to the third child, who now seemed to be on the road to recovery, but who had long been struggling with drugs and alcohol. Again, perhaps a lawyer/client conversation could raise the distinct possibility of anger and resentment on the part of the third child; the lawyer might propose diffusing somewhat the situation by the parents leaving a letter explaining that the parents were proud of the progress of the third child and didn't want to create a situation that might tempt a relapse.
c) Another twist is how a serious situation can perhaps provide an opportunity: a young adult with an HIV diagnosis goes to prepare a will, living will, health care document, etc. He had long ago had a falling out with his father, and when asked by the lawyer who the client wished to name as a surrogate decision-maker, the client mentioned that he and his father weren't even on speaking terms, and he would thus choose a cousin. In this situation, a TJ lawyer might mention that several clients have found themselves in this situation, and some of them took the opportunity to contact their fallen-away family member to explain the current serious situation and to ask whether the relative might be willing to serve in the surrogate capacity. Once again, this would be completely up to the client (who runs the risk of an additional rebuff by the father), but is a conversation that might be worth having: "Would you like to put this decision off for a month or so, and during that time you can decide whether-and how- you might contact or reach out to your father?"
Unlike the earlier discussion regarding TDL/TAL, where growth is often made in the TJ literature and at TJ conferences where judges are often in attendance, the development of the TJ area of psycholegal softspots and strategies has been much harder to achieve. Even those general practice lawyers or solicitors mindful of the idea, and even those who may be actually using it in practice, are not likely to write or speak about the situations and strategies. Thus, there is no growing body of illustrations to disseminate to students and other lawyers. What is needed, I think, is a series of "captive audience" Continuing Legal Education conferences attended by general practice lawyers/solicitors and psychologists, social workers, and counselors (who will often have patients/clients stressed by domestic matters, inheritance issues, bankruptcy prospects, etc. ). These meetings could discuss problem areas and suggested strategies, and the attendees might be contacted periodically in the future to help build a collection of relevant suggestions. It would be wonderful if some of these situations could find themselves mentioned in law school texts on the various substantive areas, even given descriptive names to identify and remember them (e.g., "the HIV attempted family reconciliation case", "the broken down house case" 19 . ) Indeed, perhaps the suggested continuing legal education conference and follow-up itself could have a law school host and student attendees from law and from psychology, social work, and related fields.
In conclusion, my thought is that a basic and brief introduction to therapeutic jurisprudence, with a focus on its methods of thinking, can and should be a component of the required first-year law school curriculum, perhaps in a Legal Profession course or in a Legal Writing, Skills, and Analysis course (which seems a perfect setting for an assignment of an "amicus justitia brief," described immediately below).
Trying to rock the boat in an almost imperceptible manner, I was really skimpy in my suggestion of a mere video and two readings and a single class session. Still, if only a single class session is realistically available, I think it could be fully acceptable as a meaningful TJ introduction. But as constituting a component of a required first-year course in Legal Profession or Legal Analysis and Writing, I would really hope for a slightly more robust TJ component-but only by squeezing in an additional class session. That would permit the assignment of a more nuanced TJ methodological article 20 and a short blog that explains a new writing suggestion called an 'amicus justitia brief'. 21 Such a brief requires students to select or be assigned a law or legal rule and to suggest the therapeutic practices that should be engaged in by legal actors working to apply the law. This is a device, by the way, that can help make TJ application better known and thus more sustainable. But even more important for present purposes, my experience has been that such an assignment truly solidifies a student's understanding of the TJ conceptual framework, the difference between and yet the crucial relationship between TDL and TAL. This understanding will stay with students in other classes, in clinical situations, and in later practice. 22 A big payoff for a simple- and interesting and exciting-investment in a handful of classes!
*Professor of Law, University of Puerto Rico; Distinguished Research Professor of Law Emeritus, University of Arizona; Honorary President, International Society for Therapeutic Jurisprudence. The author may be reached by email to firstname.lastname@example.org. Many thanks to Michael Perlin for helpful comments on an earlier draft.
Professor Wexler would also like to thank his research assistant, Rodney A. Ríos, for his help and assistance.
1 David B. Wexler, Mental Health Law and the Seeds of Therapeutic Jurisprudence, in The Roots of Modern Psychology and Law: A Narrative History https://ssrn.com/abstract=3129013 78-93 (Thomas Grisso & Stanley L. Brodsky, eds., 2018); David B. Wexler, The DNA of Therapeutic Jurisprudence, in The Methodology and Practice of Therapeutic Jurisprudence https://ssrn.com/abstract=373157 3-13 (Nigel Stobbs, Lorana Bartels, & Michel Vols, eds., 2019).
2 To join, send a BLANK email from your preferred email to Tjlistemail@example.com.
5 See "Resource" tab of International Society for Therapeutic Jurisprudence, https://www.intltj.com.
6 Professor Michael Perlin conducted a survey on the TJ listserv regarding TJ offerings internationally. His survey "TJ courses described" may be accessed by ISTJ members (free for students). Log in to ISTJ at https://www.intltj.com/community/main-forum/other-items-of-interest/tj-courses-described-2.
7 Emma Jones & Anna Kawalek, "Dissolving the Stiff Upper Lip: Opportunities and Challenges for the Mainstreaming of Therapeutic Jurisprudence in the United Kingdom", in International Journal and Psychiatry Volume 63, 76-84 .
8 Available on the opening page of the International Society for Therapeutic Jurisprudence, https:// www.intltj.com and is accessible on YouTube searching Wexler NASEM Health and Medicine Division.https://ssrn.com/abstract=1580129
12 E.g., Amy D. Ronner, "Songs of Validation, Voice, and Voluntary Participation: Therapeutic Jurisprudence, Miranda and Juveniles", 71 U. Cin. L. Rev. 89, 94-95 ; David B. Wexler, "Guiding Court Conversations Along Pathways to Rehabilitation: Integrating Procedural Justice and Therapeutic Jurisprudence", 1 International Journal of Therapeutic Jurisprudence 367 , available online at https://ssrn.com/abstract=2677431.
14 Tali Gal & Dahlia Schilli-Jerichower, "Mainstreaming Therapeutic Jurisprudence in Family Law: The Israeli Child Protection Law as a Case Study", 55 Family Court Review 177-194 , available online at https://ssrn.com/abstract=2847239.
15 Michel Vols, "Neighbors from Hell: Problem-solving and Housing Law in the Netherlands", 7 Arizona Summit L. Rev. 507 , available online at https://ssrn.com/abstract=2425653.
17 David B. Wexler, "From Theory to Practice and Back Again in Therapeutic Jurisprudence: Now Comes the Hard Part", 37 Monash Univ. L. Rev. 33 , available online at https://ssrn.com/abstract=1580129.
18 Robert Ward, "Criminal Defense Practice and Therapeutic Jurisprudence: Zealous Advocacy through Zealous Counseling: Perspectives, Plans and Policy", in David B. Wexler (ed.), Rehabilitating Lawyers: Principles of Therapeutic Jurisprudence for Criminal Law Practice 206 .
19 See generally: Practicing Therapeutic Jurisprudence: Law as a Helping Profession , especially chapters 1-3 , (eds. Dennis Stolle, David B. Wexler, & Bruce J. Winick). Chapter 2 in particular makes use of these "case nicknames."
20 David B. Wexler, "New Wine in New Bottles: The Need to Sketch a Therapeutic Jurisprudence 'Code' of Proposed Processes and Practices", 7 Arizona Summit L. Rev. 463 , available online at https://ssrn.com/abstract=2065454.
21 The Therapeutic Application of the Law and the Need for Amicus Justitia Briefs , available online at https://ssrn.com/abstract=3168768. Ideally, this additional class session would also permit the instructor to assign a TJ article in his or her own substantive specialty area as well as a reading that makes clear the value of TJ analysis to proposed law reform. E.g., Sofia Yakren, "Wrongful Birth and the Paradox of Parenting a Child with a Disability", 81 Fordham L. Rev. 593 , available online at https://ssrn.com/abstract=3146669.
22 Another especially valuable TJ writing experience, this one more in the clinical externship and office counseling realm, comes from Professor Leslie Cooney, where in a Business Law Clinic, students are introduced to TJ and ultimately prepare a final clinical experience report, the "TJ Report" (along the business school final report model) capsulizing and reflecting on their clinical experience. Leslie Cooney, "Giving Millennials a Leg-Up: How to Avoid the "If I Knew then what I Know Now' Syndrome", 96 Kentucky Law Journal 505 (2008), available online at https://ssrn.com/abstract=1140785. This experience is also likely to solidify a TJ approach that students can carry with them throughout their experience in the legal profession. It is noteworthy that Professor Cooney, to orient students to TJ and to writing the final TJ Report, assigns one very short but substantive piece, David B. Wexler & Bruce J. Winick, "Putting Therapeutic Jurisprudence to Work", 89 ABA Journal 54 , as well as a short essay from which the methodology of the TJ Report is drawn, Marc W. Patry et. al., "Better Legal Counseling through Empirical Research: Identifying Psycholegal Soft Spots and Strategies", 34 Cal. W. L. Rev. 439 . Also noteworthy, of course, is that different instructors will, not surprisingly, have different personal preferences for materials to introduce TJ to their students. Although an introduction to therapeutic jurisprudence is the overall goal, the materials may differ, too, on whether the course is one on Legal Profession, on Research and Writing, on a Clinical offering, or some other course. It will be interesting and worthwhile in the future for us to gather and distribute proposed materials, and perhaps for the International Society for Therapeutic Jurisprudence to help coordinate this effort.