What law school ought to be.

OVERVIEW
MULTI-DIMENSIONAL LAWYER
PREVENTIVE LAW AND PROBLEM SOLVING: LAWYERING FOR THE FUTURE
ESSAYS
ASPECTS OF PRACTICE
CORPORATE COMPLIANCE
RULE OF LAW
CENTER FOR CREATIVE PROBLEM SOLVING
OTHER LINKS
PREVENTIVE SUCCESS STORIES
FEEDBACK

 


BEYOND ANALOGY: PREVENTIVE LAW AS PREVENTIVE MEDICINE

David B. Wexler

University of Arizona and University of Puerto Rico

Preventive law("PL") has traditionally been analogized to preventive medicine. (1) Indeed, even the methods and terminology of preventive law are often transplants from the field of preventive medicine. A standard preventive law technique, for example, is the "periodic legal checkup." (2) Recently, the links between preventive law and preventive medicine have grown even stronger. Much current writing centers on fusing the practical procedures of preventive law with the psychological sensitivity and insights provided by the related perspective of therapeutic jurisprudence("TJ"). TJ is an interdisciplinary approach that concentrates on the law's impact on psychological well-being and emotional life. (3) Drawing on promising developments in psychology and related disciplines, TJ seeks to make the law--and the lawyering process--more humane and less stressful. While PL asks us to be systematically alert to possible 'legal soft spots" and to plan and draft around such potential legal pitfalls, TJ asks us also to be explicitly and systematically alert to possible "psycholegal soft spots"--legal measures that may not in themselves raise serious legal concerns, but that may potentially cause anger, stress, hurt and hard feelings, sibling rivalry, and the like. When integrated in practice with PL, then, TJ sees law as a legitimate and full-fledged member of the helping professions. (4) Moreover, the helping and healing function of a TJ/PL approach becomes even more fascinating and important as we become increasingly aware of the impact of mental health on immunological function and on physical health. (5) For example, recent TJ/PL writings address legal planning methods that lawyers may use with HIV-positive clients. (6) Intriguingly, given the emerging mind/body literature, it is quite possible that the more a person with HIV is able to plan for possible future problems, and thus lower the stress level, the better the chance that severe sickness will itself be postponed or perhaps avoided. In that sense, TJ/PL lawyering may take us well beyond analogy: preventive law, when mixed with a heavy dose of therapeutic jurisprudence, may in itself actually constitute a powerful form of preventive medicine.

1. See Robert M. Hardaway, Preventive Law:Materials on a Nonadversarial Legal Process(1997).

2. Id. at 180-222

3. See the website (including a comprehensive TJ bibliography) of the International Network on Therapeutic Jurisprudence at <http://www.law.arizona.edu/upr-intj>

4. See Dennis P. Stolle, David B. Wexler, and Bruce J. Winick(eds), Practicing Therapeutic Jurisprudence: Law as a Helping Profession(Carolina Academic Press 2000). See also the special issue of the interdisciplinary journal, Psychology, Public Policy, and Law, devoted to developments in the integration of TJ and PL. 5 Psychology,Public Policy & Law(1999)

5. See generally William R. Lovallo, Stress and Health: Biological and Psychological Interactions(1997). See also James W. Pennebaker, Opening Up: The Healing Power of Confiding in Others(1990)(writing about traumatic events can improve physical health): James W. Pennebaker, Putting Stress into Words: Health, Linguistic, and Therapeutic Implications, 31 Behav. Res. Therapy 539(1993)(same): Daniel W. Shuman, Therapeutic Jurisprudence and Tort Law: A Limited Subjective Standard of Care, in Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (David B. Wexler and Bruce J. Winick eds, 1996) 385-93(relationship between stress and accident proneness)

6. See Stolle et al, supra note 4