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Why shouldn’t law school introduce its students to modern, cutting edge theories, concepts, and practical skills? Teaching therapeutic jurisprudence (TJ) to law students accomplishes this goal by exposing students to innovative perspectives that demand rigorous application of one’s knowledge and values in a creative problem-solving approach. TJ does not promote the practice of psychotherapy by untrained or unqualified personnel; rather it seeks to educate lawyers, judges, legal personnel, and law students to use the law in a manner helpful to individuals and society as a whole.
“Professionalism as a personal characteristic is revealed in an attitude and approach to an occupation that is commonly characterized by intelligence, integrity, maturity, and thoughtfulness.”
“Words are the principal tool of lawyers and judges, whether we like it or not.”
The quotes above refer to two quintessential aspects of lawyers’ work. First, as members of a self-regulated profession, we must aspire to a level of professionalism that is characterized by intelligence, maturity, and thoughtfulness. Second, regardless of the tasks we undertake, words are critically important to lawyers. Not only must we be able to conduct comprehensive and coherent legal analysis; our ability to serve clients properly depends on effectively translating the analysis into words—both spoken and written.
In this short essay, I will discuss my historical involvement with therapeutic jurisprudence (TJ), how I use it in my classes (both in the free-standing TJ class and in all the others that I teach), its role in my written scholarship, and its role in conferences that I regularly attend. Although this will all be positive and will certainly be supportive of all efforts to widen the appeal of TJ as well as its applicability in the classroom, in scholarship, and in “real life,” I will also be sharing some information that is far from optimistic with regard to how law students and teachers react to TJ. I am deeply saddened by this but feel that this must also be “on the table” in any reflective conversation about TJ.
My contribution to the April 11, 2014, Suffolk University symposium on therapeutic jurisprudence (TJ) related mainly to my project—with Judge Michael Jones (ret.) of Arizona (another symposium participant) and Victoria Australia Magistrate Pauline Spencer—to “mainstream” TJ in the criminal and juvenile justice process. The project was part of the Hague Institute for the Internationalisation of Law’s (HiiL) Forum on Innovating Justice, and as it turns out, several entrants had projects and proposals that were TJ-related. In these published remarks, part of Suffolk University Law Review’s effort to expose the readership to a broad range of TJ ideas, it seems appropriate to briefly canvass the TJ-type projects, discuss how they can enrich legal education, and suggest ways in which law faculty and law students can improve on the forum’s innovations and add to their durability and practical application.
In the spring of 2013, the attention of many turned to one of the largest jackpots available in the history of the Powerball multistate lottery. Eventually, it was reported that Pedro Quezada of New Jersey was the sole winner of the prize. Quezada opted to take a $211 million lump-sum payment, rather than receiving the full amount of the $338 million prize in installments. However, New Jersey authorities made clear that the $29,000 Quezada owed in child support arrears would be deducted before any payments were made to him.
Other than perhaps Quezada himself, few people would have any quibble with this relatively small deduction from his jackpot winnings. After all, the obligation to support one’s children is firmly established in both law and morals. To the extent Quezada can use his newfound wealth to make up for any past failures to satisfy his child-support obligations, he should do so. Similarly, many would agree that Quezada’s minor children should be able to share in his lottery winnings. However, reasonable people may disagree regarding whether this should be in the form of increased mandatory child support payments, or whether Quezada should be able to independently determine how to share (or not share) his newfound wealth with his children as part of his parental prerogative.
For decades, the Supreme Court has expressly declined to address whether the Fifth Amendment right against self-incrimination prohibits the State from using evidence of a non-testifying defendant’s pre-arrest silence in its case-in-chief. But it did so last term in Salinas v. Texas, a ruling that significantly affected the rights of Americans set forth in Miranda v. Arizona. In Salinas, the Court considered whether the Fifth Amendment’s protection against self-incrimination bars the admission of evidence about a defendant’s pre-arrest, pre-Miranda silence as substantive evidence of guilt. However, the Court did not ultimately address this broad issue. Instead, a three-justice plurality only narrowly held that because Salinas did not expressly invoke his Fifth Amendment privilege in his pre-arrest, pre-Miranda police interview, his silence was admissible at his trial.
Americans and their historians have long viewed constitution-making in the Founding Era as a local event with global repercussions. It is a story of American ideals and interests in which American drafters, voters, and ratifiers made key decisions. Americans then began to work out the meaning of their constitutions in state and federal institutions, which required that some officeholders be citizens. Only after the ratification of the federal Constitution did foreign nations take heed, through imitation and (later) force. This myth of the originally authentic, and later diffusionist constitution, is not limited to the United States.It has been the dominant conception of constitution-making
in many times and places.
In fact, American constitution-making began as an international process. All the American constitutions of the Founding Era, state and federal, were made with foreign, as well as domestic, audiences in mind. International factors, from wartime imperatives to calculations of long-term commercial advantages, contributed to American constitution-making from the beginning. Indeed, the founding documents of the early United States⎯the state constitutions, the Articles of Confederation, the Declaration of Independence, and the Model Commercial Treaty⎯were designed at least in part as diplomatic instruments that, together, formed a revolutionary portfolio. Furthermore, the foundational documents articulated an Enlightenment-inflected vision of an international order of “civilized nations,” among which commerce would balance power.
Defamation suits involving anonymous online speech swing between extremes: Some cases involve vulgar postings meant to harass and ridicule, while others take on a whistleblower-like significance in exposing possible political or corporate malfeasance. Despite the prevalence of such cases, there are no national standards guiding a judge’s determination of when to reveal the identities of anonymous posters. Instead, courts have applied a jumble of tests. Some worried observers see the lack of uniformity and the accompanying uncertainties as threats to speak anonymously—a right the
Supreme Court has jealously guarded.
Complicating the issue is the variety of scenarios present in these defamation cases. These suits can be broadly separated into two factions: legitimate defamation suits sometimes called “cybersmears,” and illegitimate suits aimed merely at intimidating critics that resemble illegal Strategic Lawsuits Against
Public Participation (SLAPPs), which are sometimes called “cyber-SLAPPs.” Cybersmear suits are typical defamation actions brought against an anonymous poster who has sought to sully the reputation of his or her target; such speech is not constitutionally protected. CyberSLAPPs, on the other hand, are baseless
lawsuits that corporations, politicians, or others bring to silence critics engaged in constitutionally protected political speech online. Legitimate cybersmear cases and illegitimate cyberSLAPPs are both filed as defamation claims and can appear indistinguishable at first glance, making it difficult to balance one person’s right to speak anonymously against another person’s right to protect his or her reputation against defamation.
Two separate, but related, stories represent a growing debate permeating throughout the competitive atmosphere of Massachusetts high school athletics. At the 2010 Western Massachusetts Division I girls’ field hockey championship game, the two title contenders were engaged in a highly competitive match with the score tied late in the game. With time running out, a player broke free from the field and scored the championship-winning goal as the player collided into the opposing team’s goaltender. Both the play and ensuing result appear relatively normal until it is revealed that a male student athlete, a standout performer in both ice hockey and lacrosse, scored the game-winning goal, and that the female goaltender suffered a concussion as a result of the collision.
One year later, at the 2011 Massachusetts Women’s South/Central Sectional Swimming and Diving Championships, one of the top female swimmers in the meet, who had trained all year to receive the honors and accolades associated with an individual championship, was forced to settle for second place. Competing in the fifty-yard freestyle, the female swimmer was the fastest female in the field but was out-touched by one of the several male athletes competing in the event. The male athlete, whose time would have failed to qualify for the Massachusetts Boys’ Swimming and Diving State Championship, received all of the individual accolades associated with an individual championship while the fastest female swimmer in the meet had to content herself with second place.
The concept of a legal remedy is an old tenant of both the English and the American legal systems. At one time, based on the very remedies they had jurisdiction to provide litigants, American courts were split in two, with courts of equity and courts of law.
Remedies are omnipresent in civil litigation. The relief sought in civil cases fall into two broad categories: monetary or equitable. The concept of monetary damages, at its most basic level, is that the liable party pays a dollar amount for the harm it caused another. Conversely, equitable relief is sought in situations where money is insufficient to right the wrong suffered by the nonliable party. In many instances, this form of relief can require the liable party to act or forbear from acting.
A preliminary injunction—the focus of this Note—is one equitable remedy granted by the trial court, which typically lasts until a case can be fully adjudicated on the merits. The preliminary injunction is one of the most powerful remedies a court can issue.It is also an important tool for litigators when monetary compensation is insufficient to right the wrong suffered. In modern courts, a preliminary injunction can be the difference between moving forward with the case or dropping it all together because of how long it can take for a contested case to be docketed for trial.