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11 Behav. Sci. & L. 17 (1993)
Therapeutic jurisprudence and changing conceptions of legal scholarship

handle is hein.journals/bsclw11 and id is 17 raw text is: 


Behavioral Sciences and the Law, Vol. 11, 17-29 (1993)


                        Therapeutic Jurisprudence and
                        Changing Conceptions of Legal
                        Scholarship

                        David B. Wexler, J.D.


                        This article traces changes in the nature oflegal scholarship
                        and illustrates how therapeutic jurisprudence reflects
                        changing conceptions of the law and legal scholarship. It
                        argues that therapeutic jurisprudence may be regarded as
                        a mental health law counterpart to New Public Law, and
                        shows that questions asked by therapeutic jurisprudence
                        scholars parallel closely those asked by public law scholars.


Mental health law scholarship is in a state of flux. The doctrinal, constitutionally-
oriented scholarship that has characterized the field over the last two decades is
losing its driving force. There is, however, an emerging interest in new, interdisciplin-
ary approaches to the field. One such approach is therapeutic jurisprudence-the
study of the role of the law as a therapeutic agent.'
  In many ways, the change in mental health law scholarship is symptomatic of
a change in legal scholarship generally. And the change in legal scholarship is in
turn related to changing conceptions of the law. This article examines those changing
conceptions of law and legal scholarship and relates them to developments in thera-
peutic jurisprudence.


                       LEGAL SCHOLARSHIP

In a recent article in the Michigan Law Review entitled The Concept of Law and
the New Public Law Scholarship,' Professor Edward Rubin traces the recent
change in legal scholarship, with particular reference to public law and administrative
law scholarship. This section of the essay will summarize Rubin's essential conclu-
sions regarding public law scholarship. The next section will look at changing mental
health law scholarship and at therapeutic jurisprudence. The purpose of this article
is to show how therapeutic jurisprudence may be regarded as a mental health law
counterpart to the New Public Law scholarship.
  Rubin begins by noting that most legal scholarship, whether of the older or newer

David B. Wexler, J.D., is John D. Lyons Professor of Law and Professor of Psychology, University
of Arizona. Thanks to Joel Dvoskin, Cynthia Ginnetti, Jeffrey Klotz, John Monahan, Michael Perlin,
Ted Schneyer, Robert Schopp, Daniel Shuman, and Alan Tomkins for helpful comments on an earlier
draft. Address reprint requests and correspondence to Professor Wexler at College of Law, University
of Arizona, Tucson, AZ 85721, USA.
DAVID B. WEXLER, THERAPEUTIC JURISPRUDENCE: THE LAW AS A THERAPEUTIC AGENT (1990); DAVID
B. WEXLER & BRUCE J. WNIcK, ESSAYS IN THERaPEUrIc JURISPRUDENCE (1991).
2 Edward L. Rubin, The Concept of Law and the New Public Law Scholarship, 89 MICH. L. REV. 792
(1991).

0735-3936/93/010017-13$11.50
© 1993 byJohn Wiley & Sons, Ltd.

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