The nature of juristic paradigms: Exploring the theoretical and conceptual relationship between adversarialism and therapeutic jurisprudence.

Source: (2011) Washington University Jurisprudence Review. 4:97-149.

Problem solving courts appear to achieve outcomes which are not
common in mainstream courts. There are increasing calls for the adoption
of more “therapeutic” and ‘problem solving” practices by mainstream
judges in civil and criminal courts in a number of jurisdictions, most
notably in the United States and Australia. Currently, a judge who sets out
to exercise a significant therapeutic function is quite likely to be doing so
in a specialist court or jurisdiction, outside the mainstream court system,
and, arguably, from outside the adversarial paradigm itself To some
extent, his work is tolerated but marginalized. But do therapeutic and
problem solving functions have the potential to define, rather than
complement, the role ofjudicial officers? The basic question addressed in
this Article is, therefore, whether the judicial role could evolve to be not
just less adversarial, but fundamentally non-adversarial. In other words,
could we see-or are we seeing a paradigm shift not just in the
colloquial, casual sense of the word, but in the strong, worldview
changing sense meant by Thomas Kuhn? (author’s abstract)