40 Clev. St. L. Rev. 517 (1992)
Justice, Mental Health, and Therapeutic Jurisprudence

handle is hein.journals/clevslr40 and id is 527 raw text is: JUSTICE, MENTAL HEALTH, AND THERAPEUTIC
JURISPRUDENCE
DAVID B. WEXLER1
Mental health law advocates and even scholars have typically been hostile
toward, afraid of, or at best indifferent to, the mental health disciplines (mainly
psychiatry and psychology) and their practitioners. The reason for this is that
modem mental health law, as part of the civil liberties revolution, was
conceived to correct the abusive exercise of state psychiatric power.2 As such,
it took its place as part of the anti-psychiatry movement.
Learning to be skeptical of supposed scientific expertise is an important
lesson, and the law should never simply defer to psychiatry and the related
disciplines.3 But to the extent that the legal system (and even legal academics)
now ignore developments in the mental health disciplines, the lesson of healthy
skepticism has been overleamed. It is my thesis, then, that those of us interested
in 'justice in mental health law ought not to adopt the shortsighted and
anti-intellectual stance of ignoring or shunning the mental health disciplines.
Indeed, as I hope to show in this essay, an appreciation of the mental health
disciplines can in many instances help to create a more just legal system and
should surely contribute meaningfully and refreshingly to the dialogue on
rights and justice.
The vehicle for bringing mental health insights into the study of law is
therapeutic jurisprudence-the study of the role of the law as a therapeutic
1J.D., 1964, New York University. John D. Lyons Professor of Law and
Professor of Psychology, University of Arizona. The author, a former student
of Robert McKay, served, together with Dean Steven R. Smith, as a co-leader
of a Conference Workshop dealing with justice issues in law and mental health.
2 See BRUCE J. ENNIS, PRISONERS OF PSYCHIATRY (1972). Often, however, the
judiciary encouraged the exercise--and misuse--of psychiatric power,
sometimes through discouraging effective advocacy by attorneys. Norman G.
Poythress Jr., Psychiatric Expertise in Civil Commitment: Training Attorneys to
Cope with Expert Testimony, 2 LAW & HUM. BEHAV. 1, 16 (1978); Michael L.
Perlin, Fatal Assumption: A Critical Evaluation of the Role of Counsel in Mental
Disability Cases, 16 LAW & HUM. BEHAV. 39, 44-45 n.33 (1992) [hereinafter Fatal
Assumption] (referring to personal advocacy experience and the advocacy
experience of colleague, Professor Keri Gould).
3For current examples of inappropriate deference-even abdication--by
the appellate judiciary, see Susan Stefan, Leaving Civil Rights to the Experts:
From Deference to Abdication Under the Professional Judgment Standard, 102 YALE
L.J. 639 (1992).

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