THERAPEUTIC JURISPRUDENCE MISUNDERSTOOD AND MISREPRESENTED: THE PRICE AND RISKS OF INFLUENCE
Therapeutic jurisprudence has been described as a mechanism, vector, prism, lens, and heuristic for viewing the content of law and legal process, and as having the potential for reform of the law. It has been highly influential and, if anything, its influence is gathering momentum. However, in the two decades of success since it was coined as a concept in 1987,1 a number of less welcome challenges and consequences have followed. These include detractors, trendiness, populism, cult status, and a degree of indiscriminate and inaccurate invocation of ‘‘TJ’’ as a rationalization, justification, and even a badge of honor. This Article scrutinizes a range of the critiques of therapeutic jurisprudence and reflects upon the risks of it being misused in the name of legislative and court reforms. Unfortunately, some proponents that wish reforms to appear avant-garde, sensitive, and community-responsive do not fulfill the basic tenets of lawyering. But it is these basic tenets of lawyering that will promote autonomy and choice, minimize adverse outcomes to health, and maximize pro-therapeutic consequences. This Article argues that in the maturation phase of therapeutic jurisprudence those who identify its advantages have an intellectual responsibility to be clear about the parameters and limits of therapeutic jurisprudence. This will reduce its invocation in ways that will bring it into disrepute and result in outcomes inconsistent with its values. In addition, with its successes comes an obligation to explore what is claimed to be its implementation in practice and to evaluate rigorously whether such implementation is achieving the desired objectives.