April 26, 2005

Laboratories of justice.

In constitutional law, we often speak of the states as "laboratories of democracy" -- Justice Brandeis invented the term. Less often do with think of the state courts as laboratories of justice -- I think I had to invent that term. But here's a nice example of the state courts working in a new way and setting an example for the rest of the country:
New York State is ... creating a homelessness court, domestic violence courts and mental health courts. Backed by the state's chief judge, and bolstered by the court system's own research, these new courts are, among other things, trying to cut down on the number of people who appear in courtrooms over and over again.

Judges - who in law school may have mastered the rules of procedure or the penal code - are now meant to know about the science of addiction, the pathology of wife batterers, the bureaucracy of welfare programs....

"It's a very important new revolution" in the way courts work, said Bruce J. Winick, a former city health official who is now an academic expert on what he calls "therapeutic jurisprudence."

And while New York and California are at the forefront of this movement, there are now hundreds of such courts nationwide, from Hartford to Honolulu, addressing problems like drug abuse and drunken driving; Anchorage opened a court last year dedicated to dealing with the problems of veterans.
This, too, is federalism. Read the article -- it's long -- to see who is critical of this and why.

I'll just pick a little fight. That definition of what law school is like: "master[ing] the rules of procedure [and] the penal code." I'm afraid that's what a lot of people who avoid law school imagine it's like and a lot of people who go to law school are disappointed that it's not. We actually put far less emphasis than you'd think on learning a lot of detailed rules -- something some students might find a bit disconcerting. And some schools -- Wisconsin in particular -- make the interplay between law and society the center of legal education.

11 comments:

Internal Medicine Doctor said...

With so much specialization I am wondering why the idea of a special Medical MAdlpractice court is getting so much protest from the bar association. Do they believe that you need special understanding to judge homelessness but none to understand the intricacies of medicine?

Timothy K. Morris said...

"I'm afraid that's what a lot of people who avoid law school imagine it's like and a lot of people who go to law school are disappointed that it's not."

Amen. The unofficial motto of my law school was something like "Graduate and you'll be able to learn to practive anywhere the common law runs." The best professors, for me, anyway, were the ones who tried to show us how to dig out the why of the law as well as the how. Or as the Dean put it when addressing my first year class "Don't worry about the bar exam, you're here to learn about the Law [you could hear the capital L]. Passing the bar is what bar review courses are for."

leeontheroad said...

Of course, the general argument against such practical ideas is that it grows the bureacracy. New York likes to do this, especially downstate, since north and west of Albany, one is more likely to have circuit judges in the old sense of the term (except they don't rely on horses anymore).

Still, given the clogging of courts downstate and elsewhere, I'm more interested in whether the experiment produces positive results.

Gerry said...

"laboratories of justice"

Love it. As if I needed another reason to be a federalist.

Smilin' Jack said...

One of the most annoying things about lawyers is the way they casually conflate "law" with "justice." To clarify: justice is a concept in philosophy; also to some extent in psychology, sociology, economics, etc. Law is what a bunch of mostly long-dead politicians thought would get them reelected. There's no connection between the two. None. The relation between law and those other fields is much like the relation between astrology and astronomy...except that astrologers don't have guns.

As for the heart-warming depictions of judges "intervening" in the lives of drug addicts...support is increasing for the view that what drug addicts need most is for judges to stay out of their lives. Hopefully that view will soon prevail.

Karl Maher said...

Your "laboratories of justice" are interesting in other ways as well. For example, only one of them, Rhode Island, offers lifetime tenure. Three others have "career tenure" -- life with a mandatory retirement age. The rest require some sort of requalification, with a plurality using retention elections.

Odd, isn't it, that state legislatures and executives closely track their federal counterparts, but hardly anyone uses the federal judiciary as a template. Wonder why that is?

Details here.

Ann Althouse said...

Wipe that smile off your face, Jack. You have a ridiculously narrow conception of law, if it excludes justice, and my post talks about what courts are doing. You think courts aren't supposed to dispense justice? Whether you like NY's experiment or not is irrelevant to these questions.

Karl: some prominent lawprofs think fed judges should be elected or given limited terms. Others think state judges would be better if they had life or at least very long terms. I think the main reason the federal model for judges isn't copied is that it's too hard to find that many people you want to trust for life.

Richard Fagin said...

I still have a hard time with the stated "leaning the (why of) Law" philosophy of many law schools. My grades went from C+ to A- when I started memorizing doctrine and using a stict, formulaic method to essay exam answers, notwithstanding what the professors said. That and a year and a half after graduation I felt it nececssary to pay another attorney to probate my father in law's will - I didn't even know how to draft and where to file the petition. It seems to me that before a student can learn the why of the law, a whole lot more of the what and how needs to be memorized.

Smilin' Jack said...

You think courts aren't supposed to dispense justice?

Two words, Ann: mandatory minimums.

Ann Althouse said...

Two words, Jack: inadequate answer.

vkk1_hypno said...
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