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
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