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13 Dev. Mental Health L. 1 (1993)

handle is hein.journals/dvmnhlt13 and id is 1 raw text is: Developments in Mental Health Law Institute of Law, Psychiatry and Public Policy - The University of Virginia Volume 13, Number 1 January-June 1993 New Currents in Mental Health Law By Richard J. Bonnie According to one of Oliver Wendell Holmes, Jr.'s most quoted aphorisms, the life of the law has not been logic; it has been experience. By experience, Holmes meant the realities of social life, the felt necessities of the time. 1 In all aphorisms, the price of cleverness is some loss of accuracy. I would rather say that law is a living tradition, shaped both by the internal logic of ideas embedded in the legal culture and by changing social and technological circum- stances. Mental health law, for example, is given its distinctive texture by the internal logic of two large ideas--liberty and equality of citizenship. I will refer to these two ideas as the libertarian and egalitarian strands of mental health law. Liberty refers to the right to be free of unwar- ranted governmental restraint or interven- tion. The need to Also i regulate coercive treatment iswhat dis- In the U.S. Suprem Richard 1. Bonnie, In the Federal Cour LLB., is the John I. Cases from other S Battle Professor of Law at the University of Books Virginia and the Director of the Institute Training Programs of Law, Psychiatry and Public Policy. tinguishes mental health law from mainstream health law. In this respect, mental health law is analogous to public health law and is analyzed within the same constitutional paradigm. Equal citizenship in its thin form refers to the right not to be legally disadvantaged on grounds of mental disability. In a thicker form, this idea encompasses affirmative governmental efforts to counteract the effects of private discrimina- tion. Mental health law, as we now know it, has developed only over the past 25 years. The libertarian strand of mental health law was rooted in a distrust of discretionary power, and a deepening skepticism about governmental intrusion into people's personal lives. It was in this sense tied to In re Gault,2 which subjected the juvenile court to the rule of law, his issue: andRoe v. Wade, 3 which substan- ourt 6 tially restricted governmental 11 interference with a woman's repro- ductive decision- 18 making. Both of these themes ap- 24 pear prominently in O'Connor v. n t eC 'ts ates

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