Therapeutic jurisprudence in the courts

Therapeutic jurisprudence is an emerging field of law and social science inquiry that explores the role of the law in fostering therapeutic or antitherapeutic outcomes. This article considers the relationship between therapeutic jurisprudence and court performance goals, examines applications of therapeutic jurisprudence in court settings, discusses the steps involved in incorporating therapeutic jurisprudence principles into the work of courts, outlines the pros and cons associated with practicing therapeutic jurisprudence primarily in specialized courts, and offers suggestions for fostering continued experimentation by courts.     

Race, youth violence, and the changing jurisprudence of waiver

This article analyzes the legal history and jurisprudential theory of legislative offense-exclusion and prosecutorial waiver laws over the past quarter-century. Initially concerns about racial discrimination and civil rights motivated the Supreme Court in Kent v. United States to require due process in judicial waiver hearings. Offense-exclusion and "direct file" laws evolved and expanded in direct reaction to Kent as lawmakers sought simple and expedient alternatives to judicial waiver hearings. The "just deserts" sentencing movement of the 1970s, which advocated determinate and presumptive offense-based sentences, provided a conceptual alternative to judicial discretion and a jurisprudential rationale for offense exclusion laws. Research on delinquent and criminal careers in the 1970s, which initially promised empirically grounded selective incapacitation sentencing strategies, provided another conceptual foundation for offense-based waiver laws that focused on youths' prior records. Finally, offense exclusion provided a politically attractive strategy for "get tough" public officials who proposed to "crack down" on "baby boom" increases in youth crime. The jurisprudential shift in sentencing emphases from considerations of the offender to characteristics of the offense relocated waiver and sentencing discretion from judges to prosecutors. By the early 1990s, as a result of political "crack-downs" on youth crime, the scope of excluded offense legislation increased substantially, became overly inclusive and excessively rigid, and exhibited many of the negative features associated with mandatory sentencing laws.     

Therapeutic jurisprudence and conflicts among values in mental health law

Therapeutic Jurisprudence provides a conceptual framework for a research agenda designed to promote development of legal rules, procedures, and roles in a manner consistent with the therapeutic mission of the mental health system. As such, it draws attention to the tension between the jurisprudential values of autonomy and well-being that permeates mental health law specifically and the law and ethics of health care generally. This article advances an analysis of these values in the context of the patient-centered approach to health care. The article endorses a priority for the deontic aspect of autonomy over well-being but allows balancing of the consequentialist component of autonomy against well-being. Finally, it applies this framework to several traditionally difficult types of cases.     

American legal realism and sociological jurisprudence: The methodological roots of a science of law

There remains a good deal of confusion concerning the respective roles legal realism and sociological jurisprudence played in the movement to demythologize the study of law in the United States. It is asserted that this confusion is the result of a failure to recognize that American legal realism was part of the intellectual tradition of the thennew behavioral sciences–in particular, adopting as its methodological premise the ideal of a divorce between the study of fact and value. In contrast, sociological jurisprudence under the influence of Roscoe Pound, relied upon the tradition of pragmatic philosophy, ultimately denying that the realist's separation was either possible or desirable. As such, American legal realism should be seen as the true precursor of more modern attempts to engage in the study of judicial behavioralism and to attempt more scientific studies of the judicial process.     

Di Algemeyne Entsiklopedye,the Holocaust and the changing mission of Yiddish scholarship

The first attempt to publish a comprehensive encyclopedia in the Yiddish language began in Berlin in the early 1930s. The editors of Di algemeyne entsiklopedye (The General Encyclopedia) were initially concerned with bringing the latest discoveries from fields such as history, demography, biology, economics and political science to readers in need of assistance in comprehending the larger world. Almost from its inception, however, the project was forced to reconsider its agenda because of the Nazi rise to power. Dropping their original timetable, the first seven volumes were published in Paris (to where its editors first fled after Hitler’s 1933 appointment as Chancellor) and the final volumes were published in New York (to where they subsequently fled the 1940 German invasion of France). With its final volume in 1966, Di algemeyne entsiklopedye totaled twelve volumes—one more than originally planned. Only five ultimately fell within the editors’ original edifying mission, while the remaining seven volumes were dedicated to the subject “Yidn” (“Jews”). Originally planned as a supplement to the Normale volumes, the Yidn series became the primary focus of the Entsiklopedye on account of the rapidly deteriorating circumstances of the Jews in Europe. In this, the Entsiklopedye serves as a useful map of the changing representational imperatives that shaped Jewish scholarship as a consequence of the Holocaust.     

Forensic psychology and Islamic jurisprudence

Islamic jurisprudence is the most widely used system of religious law in the world today. However, how forensic psychology may operate within this system has been largely unexplored. The current review sets out to explore the relationship between Islamic jurisprudence and forensic psychology by examining the Islamic legal concepts of evidence, competence, insanity, psychological disorder and intellectual disability and their implications for forensic practice. Also discussed are the potential barriers to forensic psychological practice in countries using a system of Islamic law.     

The uneasy (and changing) relationship of health care and religion in our legal system

This article provides a brief introduction to the interplay between law and religion in the health care context. First, I address the extent to which the commitments of a faith tradition may be written into laws that bind all citizens, including those who do not share those commitments. Second, I discuss the law’s accommodation of the faith commitments of individual health care providers—hardly a static inquiry, as the degree of accommodation is increasingly contested. Third, I expand the discussion to include institutional health care providers, arguing that the legal system’s resistance to accommodating the morally distinct identities of institutional providers reflects a short-sighted view of the liberty of conscience. Finally, I offer some tentative thoughts about why these dynamics become even more complicated in the context of Islamic health care providers.     

Therapeutic jurisprudence and the resolution of value conflicts: what we can realistically expect, in practice, from theory

This article assesses the criticisms of therapeutic jurisprudence that it cannot resolve value conflicts, especially between autonomy rights and therapeutic values, or, less radically, that it has not provided a general method for resolving conflicts. Grounded in general jurisprudential principles about conflict resolution, including novel developments respecting the meaning of weighing and balancing, the article rejects the criticisms as unfounded. The article also develops and critiques arguments maintaining that therapeutic jurisprudence cannot resolve certain value conflicts because the values are incommensurable. The argument is illustrated by examples concerning the right to refuse treatment, and jurisprudential analyses of that right.     

Psychological jurisprudence and the information processing paradigm

The purpose of this article is to further recent work in the psychology of jurisprudence. After summarizing the value positions that are central to a jurisprudence that emphasizes the role of law in the everyday lives of individuals, we examine the interaction between the tenets of that philosophy and the paradigmatic content of psycholegal research. We propose that one dominant perspective, information processing, assumes that legal actors are imperfect processors of social information and proceeds to document biases and propose ways for the law to minimize shortcomings in human cognition. After summarizing the emerging theory of psychological jurisprudence, we discuss the information processing paradigm in psychology and law, illustrating its contributions with three recent studies. Next, we present an empirical analysis of abstracts from the last 5 years of empirical research to demonstrate that there is a representative body of information processing research in psychology and law. Following this is an in-depth assessment of a sample of cognitive and social cognitive studies, detailing the scientific and normative issues that make up this literature. Finally, we conclude with some recommendations for jurisprudential theorists and psycholegal researchers which will integrate the philosophy of psychology and law with its empirical underpinnings.     

Contrasting conceptions of perception and action

An examination of contrasting conceptions of perceptual processes, control of action and the nature of the linkage between perception and action leads to identification of a family of options. Two of these options, labeled pure realism and pure constructivism, are widely recognized. The argument is offered that the other options, which are hybrid networks of propositions, cannot be ruled out on a priori grounds. Nevertheless, the hybrids are usually ignored. It is proposed that investigators in the field of perception and action should embark on programmatic research that evaluates these contrasting conceptions on common empirical terrain.     

Folk conceptions of fairness and unfairness

This study sought to identify the standards people invoke when judging the fairness or unfairness of outcomes of everyday events, and to determine whether their standards of judgment vary according to the fairness of the outcome and to their perspective, i.e. whether the outcomes are ones they personally experienced or witnessed. The standards of fairness laypeople were found to invoke, even when unprompted, coincided with the standards social scientists have emphasized (e.g. distributive, procedural) in their theories of psychological justice. However, laypeople emphasized these standards differently when accounting for the fairness–unfairness of personal experiences versus those they had witnessed, and when accounting for fair versus unfair outcomes. As predicted, they were more likely to invoke procedural and interpersonal criteria when judging the fairness–unfairness of their own outcomes, but more likely to invoke distributive criteria when judging others' outcomes. Regardless of perspective, laypeople cited procedural criteria as the major determinants of their fairness judgements; but cited procedural, distributive and interpersonal criteria as comparably influential in determining their unfairness judgments. Copyright © 2000 John Wiley & Sons, Ltd.     

Philosophical conceptions of identity and culture

Identity and culture as the main concepts of INPE '94 were analyzed from philosophical perspectives that questioned their implications for our era of globalization. The formation of identities in a cultural context and their relationships with education gave focus to discussion. In other words, the effects of culture upon the individual and the role of education in strengthening or degrading these effects afforded the main concerns of our topical group.