Monday, February 27, 2012

Perlin on Sadoff

New on SSRN: Michael L. Perlin, "Justice's Beautiful Face": Bob Sadoff and the Redemptive Promise of Therapeutic Jurisprudence, J. Psychiatry & L. (forthcoming 2012).  The abstract:
Dr. Robert Sadoff’s career is a reflection of his commitment - both as a scholar and as an expert witness - to the values of care, the avoidance of harm, and the well-being of those who come in contact with the forensic system. These are commitments that resonate in the therapeutic jurisprudence literature.

One of the most important legal theoretical developments of the past two decades has been the creation and dynamic growth of therapeutic jurisprudence (TJ). Initially employed in cases involving individuals with mental disabilities, but subsequently expanded far beyond that narrow area, therapeutic jurisprudence presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law that can have therapeutic or anti‐therapeutic consequences. The ultimate aim of therapeutic jurisprudence is to determine whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. There is an inherent tension in this inquiry, but Professor David Wexler - one of TJ’s “founding fathers” - clearly identifies how it must be resolved: “the law's use of “mental health information to improve therapeutic functioning [cannot] impinge upon justice concerns.” As I have written elsewhere, “An inquiry into therapeutic outcomes does not mean that therapeutic concerns `trump’ civil rights and civil liberties.”

In this article, I first explain the fuller meaning of therapeutic jurisprudence. Next, I will look at Dr. Sadoff’s writing that has been explicitly about TJ, to be followed by (1) a consideration of his other writing that has clearly been inspired by his adherence to TJ principles (although those are not necessarily specified), and (2) a consideration of some of the reported litigated cases in which he has testified in which his testimony reflects TJ values. I conclude with some thoughts about his contributions in this area, coupled with some speculations as to why so few forensic psychiatrists ever write from this perspective.

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