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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