¹ The term “Before the Law” is taken from Franz Kafka's title in his little story within his book, “The Trial.” See Kafka, Franz, The Trial (trans., Mitchell, Breon, 1998)Google Scholar.

² See, e.g., Cover, Robert, Violence and the Word, in Narrative, , Violence and the Word 203 (Minow, Martha ed., 1995)Google Scholar.

³ Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts (Winick, Bruce J. & Wexler, David B. eds., 2003)Google Scholar.

⁴ For an overview of the history, literature and activities of “therapeutic jurisprudence,” available at http://www.law.arizona.edu/depts/upr-intj/ (last visited 22-1-06) [hereinafter therapeutic jurisprudence website].

⁵ Therapeutic Jurisprudence: The Law as a Therapeutic Agent (Wexler, David B. ed., 1990)Google Scholar.

⁶ Law is a Therapeutic Key: Developments in Therapeutic Jurisprudence (Winick, Bruce J. & Wexler, David B., eds. 1996)Google Scholar.

⁷ Practicing Therapeutic Jurisprudence: Law as a Helping Profession (Stolle, Dennis P., Wexler, David B. & Winick, Bruce J. eds., 2000)Google Scholar.

⁸ For a reference to the intersection of ADR and TJ, see id., at 467-468, 212-213.

⁹ Winick & Wexler, supra note 3, at 7.

¹⁰ See the therapeutic jurisprudence website, supra note 4.

¹¹ For a critical discussion of this claim, see section D infra.

¹² Fisher, Roger & Ury, William, Getting to Yes: Negotiating Agreement Without Giving in (1983)Google Scholar.

¹³ David B. Wexler, Therapeutic Jurisprudence and the Culture of Critique, in Practicing Therapeutic Jurisprudence: Law as a Helping Profession supra note 7, at 449, 459. For a direct reference by Wexler to Fisher and Ury, see id., at 460:

The result is a kind of Fisher and Ury Getting to Yes-type scholarship, in which the scholar goes through the process of carefully anticipating the various needs and interests (as opposed to rigid right and positions), explaining the possible options through brainstorming and finally mentally mediates (through a type of internal dialogue) a proposed solution.

¹⁴ Winick & Wexler, supra note 3, at 7. See also, therapeutic jurisprudence website, supra note 4: It is important to recognize that therapeutic jurisprudence does not itself suggest that therapeutic goals should trump other ones. It does not support paternalism, coercion, and so on. It is simply a way of looking at the law in a richer way, and then bringing to the table some of these areas and issues that previously have gone unnoticed. Therapeutic jurisprudence simply suggests that we think about these issues and see if they can be factored into our law-making, lawyering, or judging.”

¹⁵ Winick & Wexler, id., at 2.

¹⁶ Id., at 3

¹⁷ Id.

¹⁸ Id., at 73-74.

¹⁹ Id., at 7.

²⁰ Id., at 21-29.

²¹ Id., at 31-37.

²² Id., at 39-43.

²³ Id., at 23.

²⁴ Id., at 33.

²⁵ Id., at 39.

²⁶ Id., at 57.

²⁷ Id., at 59.

²⁸ Id., 63-66.

²⁹ Id., at 67.

³⁰ Id., at 73-86.

³¹ Id., at 87-92.

³² A nolo plea permits the sex offender to accept the consequences of a conviction without going to trial and without admitting guilt.

³³ For a discussion of additional areas of potential impact of TJ on the sex offender, see Klotz, Jeffery A., Wexler, David B., Sales, Bruce D. & Becker, Judith B., Cognitive Restructuring Through Law: a Therapeutic Jurisprudence Approach to Sex Offenders and the Plea Process, 15 U. Puget L. Rev. 579 (1992)Google Scholar.

³⁴ Winick & Wexler, supra note 3, at 91.

³⁵ Id., at 105.

³⁶ Id.

³⁷ Id., at 106.

³⁸ Id. at 111-127.

³⁹ Id., at 113.

⁴⁰ For a criticism of the too therapeutic approach for offenders, see part III.

⁴¹ Winick & Wexler, supra note 3, at 130.

⁴² Judge Robert K. Warren, Public Trust and Procedural Justice, id., at 132-136.

⁴³ Id., at 133.

⁴⁴ Michael D. Clark, A Change-Focused Approach for Judges, in id., at 137-147.

⁴⁵ Carrie J. Petrucci, The Judge-Defendant Interaction: Toward a Shared Respect Process, in id., at 148-156.

⁴⁶ Bruce Winick, The Therapeutic Value of the Civil Commitment Hearing, in id., at 156-158.

⁴⁷ Charles J. Kennedy, Judicial Behavior and the Civil Commitment Petitioner, in id., at 158-164.

⁴⁸ Id., at sections D, E, F. 165-199.

⁴⁹ A quote from a British psychologist in: David B. Wexler, Sex Offenders and the Plea Process, in id., at 165, 165.

⁵⁰ See the text of supra note 32.

⁵¹ Winick & Wexler, supra note 3, at 166-167.

⁵² Id., at 177-180.

⁵³ Id., at 187.

⁵⁴ Id., at 189-199.

⁵⁵ See Beck, Ulrich, Society, Risk, Towards a New Modernity (trans. Ritter, Mark, 1992)Google Scholar; see also, Scott Lash and Brian Wynne, Introduction, id.

⁵⁶ See Winick & Wexler, supra note 3, at 9.

⁵⁷ Id., at 227-230.

⁵⁸ Id., at 231-285.

⁵⁹ See also Gothard, Sol, Therapeutic Jurisprudence in the Appellate Arena—A Louisiana Jurist's Response, 24 Seattle U. L. Rev. 335 (2000)Google Scholar. The author discusses the relation TJ and advisory opinion. See also Abrahamson, Shirley S., The Appeal of Therapeutic Jurisprudence 24 Seattle U. L. Rev. 223 (2000)Google Scholar. The author offers to consider the role of appellate courts of imposing or enabling a culture of dialogue. Courts do best by proceeding in a way that is catalytic rather than preclusive, she claims, and this goes together with democratic principles of deliberation and dialogue.

⁶⁰ Winick & Wexler, supra note 3, at 76.

⁶¹ This expression is taken from the subject of “the Pound Conference” which is considered the founding event of the ADR movement.

⁶² Pound, Roscoe, The Causes of Popular Dissatisfaction With the Administration of Justice, 35 F.R.D. 241 (1906)Google Scholar.

⁶³ See Merry, Sally Engle, Disputing Without Culture, 100 Harv. L. Rev. 2057, 2068 (1987)CrossRefGoogle Scholar. “Many of the Progressive Era reformers of the early twentieth century, for example, advocated reforms similar to ADR processes.” See also, Sarat, Austin, The “New Formalism” in Disputing and Dispute Processing, 21(V) Law & Soc'y Rev. 695 (1988)Google Scholar.

⁶⁴ See Galanter, Marc, The Day After the Litigation Explosion, 46 Md. L. Rev. 3, 4 (1986)Google Scholar. See also, Galanter, Marc, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 Ucla L. Rev. 4 (1983)Google Scholar.

⁶⁵ Merry, supra note 63 at 2068: “There seems to be an historical pattern of oscillation between formal systems of dispute resolution and informal reforms that gradually became more formalized, leading to new calls for informal reforms of the now calcified other reforms.”

⁶⁶ See National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, The Pound Conference: Perspectives on Justice in the Future (Levin, Leo & Wheeler, Russell R. eds., 1979)Google Scholar.

⁶⁷ Frank E. A. Sander, Varieties of Dispute Processing, id., at 72-85.

⁶⁸ See also, Sander, Frank E. A. & Goldberg, Stephan B., Fitting the Forum to The Fuss: A User-Friendly Guide to Selecting an ADR Procedure, 10 NEG. J. 46 (1994)Google Scholar.

⁶⁹ For a discussion of the relation between TJ, ADR, and preventive law, see Schneider, Andrea Kupfer, The Intersection of Therapeutic Jurisprudence, Preventive Law, and Alternative Dispute Resolution, 5 Psychol. Pub. Pol'y & L. 1084 (1999)Google Scholar. For a discussion of the relation between TJ and preventive law, see Winick, Bruce J., The Expanding Scope of Preventive Law, 3 Fla. Coastal L.J. 189 (2002)Google Scholar.

⁷⁰ Winick & Wexler, supra note 3, at 106.

⁷¹ For an overview of the collaborative law movement, see Tesler, Pauline H., Collaborative Law a New Paradigm for Divorce Lawyers, 5 Psychol. Pub. Pol'ly & L. 967 (1999)CrossRefGoogle Scholar.

⁷² Susan Daicoff, The Role of Therapeutic Jurisprudence Within the Comprehensive Law Movement, in supra note 7, at 465.

⁷³ Id., at 468.

⁷⁴ Id.

⁷⁵ Bush, Robert A. Brusch & Folger, Joseph P., The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition 249–250 (1994)Google Scholar.

⁷⁶ For the description of “scientific revolution” which produces a change of paradigm, see Kuhn, Thomas, The Structure of Scientific Revolution (1962)Google Scholar. A paradigm is, according to Kuhn, “a set of assumptions, rules or model problems that define what the important questions are and how to go about answering them.”

⁷⁷ Menkel-Meadow, Carrie, Toward another View of Legal Negotiation: The Structure of Problem Solving, 31 U.C.L.A. L. Rev. 754, 763–764 (1984)Google Scholar.

⁷⁸ Gilligan, Carol, In A Different Voice: Psychological Theory and Women's Development (1982)Google Scholar.

⁷⁹ Menkel-Meadow considers the possibility of perceiving the problem solving conception of negotiation as a feminine conception of dispute resolution and transaction planning, and refers to Gilligan. She says that “To the extent that some of the elements of problem solving, such as trying to satisfy the needs of all parties and addressing the relational aspects of negotiation seem to represent women concerns, this is so.” Menkel-Meadow, supra note 77, at 796.

⁸⁰ Regarding transformative leadership in organizations, see Improving Organizational Leadership (Bass, Bernard M. & Avolio, Bruce J., eds., 1994)Google Scholar.

⁸¹ For an analysis of the differences between the individualistic worldview and the relational one in terms of perceptions of mediation, see Bush & Folger, supra note 75, at 236-259. For a more general discussion of feminine relational epistemology and the relation worldview in general, see Gilligan, supra note 78; West, Robin, Jurisprudence and Gender, 55 U. CHI. L. REV. 1 (1988)CrossRefGoogle Scholar.

⁸² See e.g., Bush & Folger, supra note 75, at 243:

Indeed, the central feature of human nature, when perceived from the starting place of the transformation value, is neither individuality nor connectedness (and their associated qualities) but the element that related the two in an integrated, whole human consciousness —the relational capacity…. Internally, human beings can relate the dual aspects of self-interestedness and other-awareness within the individual's own consciousness. Externally, human beings can relate to others non-instrumentally, with an awareness of their common humanity.

⁸³ See Winick & Wexler, supra note 3, at 105, describing both phenomena as emerging in parallel arenas and having a symbiotic relationship.

⁸⁴ The roots of this call can be related to the sociological jurisprudence of Roscoe Pound. See Pound, Roscoe, Law in Books and Law in Action, in American Legal Realism 39 (Fisher, William W., Horwitz, Morton J. & Reed, Thomas A. eds., 1993)Google Scholar.

⁸⁵ See the therapeutic jurisprudence website, supra note 4.

⁸⁶ For a discussion of Holmes and his significance for American legal discourse, see Gordon, Robert, The Legacy of Oliver Wendell Holmes (1992)Google Scholar; Kelley, Patrick J., Holmes, Langdell and Formalism, 15 Ratio. Juris. 26 (2002)CrossRefGoogle Scholar; Grey, Thomas C., Holmes and Legal Pragmatism, 41 Stan. L. Rev. (1989), 787 CrossRefGoogle Scholar.

⁸⁷ Holmes, Oliver Wendell, The Path of the Law, 10 Harv. L Rev, 457 (1897)Google Scholar: “For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.” For a discussion of the relation between Holmes and the Realists in terms of the pragmatic idea and the American identity, see Alberstein, Michal, Pragmatism and Law: From Philosophy to Dispute Resolution ch. 1, 2 (2002)Google Scholar.

⁸⁸ Sarat, Austin & Silbey, Suzan, Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstruction of the Juridical Subject, 66 Denv. U. L. Rev. 433, 459 (1989)Google Scholar.

⁸⁹ See Posner, Richard A., The Problematics of Moral and Legal Theory (1999)Google Scholar.

⁹⁰ Winick & Wexler, supra note 3, at 7.

⁹¹ See Stolle, Wexler & Winick, supra note 7.

⁹² See Perlin, Michael L., A Law of Healing, 68 U. Cin. L. Rev. 407 (2000)Google Scholar.

⁹³ For an acknowledgement of the inconsistency between some of the strands of TJ, as part of its infancy and lack of precise definitions, see Stephani, A. J., Introduction—Symposium: Therapeutic Jurisprudence and the Importance of Expression in the Law, 3 Fla. Coastal L. J. 113, 114–115 (2002)Google Scholar.

⁹⁴ For a criticism of the statistical backing of empirical claims for the problem-solving courts, see Pearson, Jessica, Models of Collaboration in Family Law: The Bookshelf, in Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts, 42 Fam. Ct. Rev. 384, 385 (2004)Google Scholar. For a critical evaluation of the success of drug courts, see Miller, Eric J., Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism, 65 Ohio St. L.J. 1479 (2004)Google Scholar.

⁹⁵ See the definition of the approach in the therapeutic jurisprudence website supra note 4.

⁹⁶ See Christie, Nils, Limits to Pain 37–52 (1982)Google Scholar; Zehr, Howard, Changing Lenses: A New Focus for Crime and Justice 33–43, 63–94 (1990)Google Scholar; Wright, Martin, Restoring Respect for Justice: A Symposium 36–63, 140–202 (1999)Google Scholar.

⁹⁷ See, e.g. Menkel-Meadow, Carrie, What Will We Do When Adjudication Ends? A Brief Intellectual History of ADR, 44 UCLA L. Rev. 1613 (1997)Google Scholar; Luban, David, Settlements and The Erosion of The Public Realm, 83 Geo. L.J. 2619 (1995)Google Scholar.

⁹⁸ For soft versions of legal decision making see Benjamin N. Cardozo, The Nature of the Judicial Process, in American Legal Realism, supra note 84, at 178; Joseph C. Hutchenson, Jr., The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decisions, id., at 202.

⁹⁹ For a description of the wave of critique of ADR following its formative period, see Noce, Dorothy J. Della, Mediation Theory and Policy: The Legacy of the Pound Conference, 17 Ohio St. J. Disp. Resol. 545 (2002)Google Scholar. Some of the prominent papers in this context are Penelope Bryan, E., Killing Us Softly: Divorce Mediation and the Politics of Power, 40 Buff. L. Rev. 441 (1992)Google Scholar; Dayton, Kim, The Myth of Alternative Dispute Resolution in the Federal Courts, 76 Iowa L. Rev. 889 (1991)Google Scholar; Delgado, Richard, ADR and the Dispossessed: Recent Books About the Deformalization Movement, 13 Law & Soc. Inquiry 45 (1988)CrossRefGoogle Scholar; Delgado, Richard et al. , Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 Wis. L. Rev. 1359 (1985)Google Scholar; Edwards, Harry T., Alternative Dispute Resolution: Panacea or Anathema? 99 Harv. L. Rev. 668 (1986)CrossRefGoogle Scholar; Fiss, Owen M., Against Settlement, 93 Yale L.J. 1073 (1984)CrossRefGoogle Scholar; Grillo, Trina, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545 (1991)CrossRefGoogle Scholar; Hermann, Michele G., The Dangers of ADR: A Three-Tiered System of Justice, 3 J. Contemp. Legal Issues 117 (1989–1990)Google Scholar; Luban, David, Bargaining and Compromise: Recent Work on Negotiation and Informal Justice, 14 Phil. & Pub. Aff. 397 (1985)Google Scholar; Menkel-Meadow, Carrie, Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or “The Law of ADR,” 19 Fla. St. U. L. Rev. 1 (1991)Google Scholar; Silver, Marjorie A., The Uses and Abuses of Informal Procedures in Federal Civil Rights Enforcement, 55 Geo. Wash. L. Rev. 482 (1987)Google Scholar; Singer, Jana B., The Privatization of Family Law, Wis. L. Rev. 1443 (1992)Google Scholar.

¹⁰⁰ See supra text to notes 61-68.

¹⁰¹ Galanter, Marc, The Day after the Litigation Explosion, 46 Md. L. Rev. 3 (1986)Google Scholar. Galanter, Marc, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. Rev. 4 (1983)Google Scholar.

¹⁰² Abel, Richard, 1, 2 The Politics of Informal Justice (1982)Google Scholar.

¹⁰³ Fiss, supra note 99; Delgado et al., supra note 99; Grillo, supra note 99.

¹⁰⁴ See John Petrila, Paternalism and the Unrealized Promise of Essays in Therapeutic Jurisprudence, in Wexler & Winick, supra note 3, at 685. Petrila claims that in the case of mental-health law the editors ignore the growing challenge to professional hegemony of mental disability law and treatment. They ignore criticism of the existing therapeutic values in the field; they do not answer the question who decides what constitutes a therapeutic outcome; they assume too easily that researchers, practitioners, and lawyers working together are capable of defining and implementing therapeutic values.

¹⁰⁵ Nader, Laura, The ADR Explosion—The Implications of Rhetoric in Legal Reform, 8 Windsor Y.B. Access to Jus. 269 (1988)Google Scholar. Nader, Laura, Disputing Without the Force of Law, 88 Yale L.J. 998 (1979)CrossRefGoogle Scholar.

¹⁰⁶ See the text to supra note 5

¹⁰⁷ See the therapeutic jurisprudence website, supra note 4.

¹⁰⁸ See Schopp, Robert F., Integrating Restorative Justice and Therapeutic Jurisprudence, 67 Rev. Jur. U.P.R 665, 666 (1998)Google Scholar: “TJ does not attempt to resolve underlying normative issues, but it can inform normative analysis by clarifying and informing empirical premises.” The author says although TJ remains normatively neutral in principle, in practice it maintains at least a minimal commitment to well-being as a good that law should advance. For a description of TJ as a social movement and an attempt to fill the assumed normative neutrality of TJ, see Madden, Robert G. & Wayne, Raymie H., Constructing a Normative Framework for Therapeutic Jurisprudence Using Social Work Principles as a Model, 18 Tourno L. Rev. 487 (2002)Google Scholar.

¹⁰⁹ See section I supra.

¹¹⁰ For an application of the therapeutic ideas on constitutional debates when dealing with minority groups, see Anya, S. James, The United States Supreme Court and Indigenous Peoples: Still a Long Way to go Toward a Therapeutic Role, 24 Seattle U. L. Rev. 229 (2000)Google Scholar. For a critical discussion of the expansion of TJ principles into constitutional cases, see Arguelles, Luis Muniz, Yelling, Not Telling: An Antitherapeutic Approach Promoting Conflict, 24 Seattle U. L. Rev. 237 (2000)Google Scholar.

¹¹¹ Resnik, Judith, Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication, 10 Ohio St. J. Dip. Resol. 211 (1995)Google Scholar. In the case of the ADR, Alternative Dispute Resolution became Appropriate Dispute Resolution.

¹¹² See Perlin, Michael L., What is Therapeutic Jurisprudence, 10 N.Y.L. Sch. J. Hum. Rts. 623, 624 (1993)Google Scholar. See also Perlin, supra note 92, at 411-412. Perlin claims that TJ may be seen as another alternative school in the intellectualist tradition of the critical schools in legal thought.

¹¹³ See David B. Wexler, Therapeutic Jurisprudence and the Culture of Critique, in Stolle, Wexler & Winick, supra note 7 at 449.

¹¹⁴ Tannen, Deborah, The Argument Culture: Moving From Debate To Dialogue (1998)Google Scholar.

¹¹⁵ Wexler, in Stolle, Wexler & Winick, supra note 7 at, at 451.

¹¹⁶ Id., at 455.

¹¹⁷ Id., at 459.

¹¹⁸ Id.

¹¹⁹ See also, Pearson, supra note 94, at 386:

What about jobs, housing, food, education, and health care? Can we address the causes of recidivism without creating jobs for offenders or places where they can live? Will domestic violence and child abuse neglect be “cured” when “breadwinners” cannot find jobs and jobs do not pay livable wages? Will we deter youth from crime when their families fail to nurture them; their schools fail to educate them, and the economy affords them no opportunity to succeed? By all means, judges should conduct themselves in a respectful, caring manner in their courtrooms, but they and the rest of us should be pushing for the social and economic reforms that a truly therapeutic approach will require.

¹²⁰ See, e.g., the difference between the TJ and the Law and Economics approach, which confronts mainstream legal jurisprudence theoretically and claims for better theoretical foundations. The position of this movement within legal academia is established and appreciated even by its opponents.

¹²¹ See Alberstein, supra note 87, at ch. 4.

¹²² See, e.g., Perlin, supra note 92, at 411, referring to development of more sophisticated behavioral and empirical research on the roots of mental disability and the reason for some previously misunderstood behavior of persons with mental disability.

¹²³ For an equivalent call in broad terms, see Perlin, supra note 112, at 635.

¹²⁴ See section III A for a preliminary discussion of such connection; see Kupfer Schneider, supra note 69. See also, Paquin, Gary and Harvey, Linda, Therapeutic Jurisprudence, Transformative Mediation and Narrative Mediation: A Natural Connection, 3 Fla. Coastal L.J. 167 (2002)Google Scholar. The authors argue that the transformative and narrative approaches to mediation are both as concerned with relationship issues as they are with settlements, and this is why they suit the concerns of TJ. For an incorporation of TJ principles and preventive law ideas into the ADR practice of “fitting the forum to the fuss,” see Schneider, Andrea Kupfer, Building a Pedagogy of Problem Solving: Learning to Choose Among ADR Processes, 5 Harv. Negot. L. Rev. 113 (2000)Google Scholar.

¹²⁵ See Posner, Richard, Economic Analysis of the Law (1998)Google Scholar; Posner, Richard, The Economic Approach to Law, Tax L. Rev. 53 (1975)Google Scholar; Posner, Richard, The Economic Structure of the Law (Davisi, Francesco ed., 2001)Google Scholar; Mercuro, Nicholas & Megema, Steven G., Economics and the Law: From Posner to Post-Modernism (1977)Google Scholar.

¹²⁶ See Behavioral Law and Economics (Sunstein, Cass R. ed., 2000)CrossRefGoogle Scholar; Jolls, Christine et al. , A Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1471 (2000)CrossRefGoogle Scholar.

¹²⁷ Feminist Legal Theory: Readings in Law and Gender 5, 100 (Bartlett, Katharine T. & Kennedy, Rossan eds., 1991)Google Scholar. See also Gilligan, supra note 78; Mackinnon, Katharine A, Feminist, Toward A Theory of the State (1989)Google Scholar.

¹²⁸ See Mackinnon, id.

¹²⁹ See Law and Literature: Text and Theory (Ledwon, Lenora ed., 1996)Google Scholar; White, James Boyd, Heracles' Bow: Essays on the Rhetoric and Poetry of Law (1985)Google Scholar; White, James Boyd, The Edge of Meaning (2001)Google Scholar.

¹³⁰ See the discussion in Fisher, et al., american legal realism, supra note 84, at sec. 3(c).

¹³¹ Critical Legal Studies expose the suppressive quality of law, and thus their critique can be read in terms of the TJ emphasis on the therapeutic aspects of law. Although these two schools seem to come from the opposite sides of the academic political map, their claims have some similarities which are worth exploring. See, e.g., Gordon, Robert, Law and Ideology, in Lloyd's Introduction to Jurisprudence (6th ed. 1994) 950–959 Google Scholar.

Kelman, Marc, A Guide to Critical Legal Studies (1987)Google Scholar. Other relevant schools of thought are the law and psychology, new legal process and a few other fields that will not be discussed here.

¹³² This motivation is emphasized in some of the Legal Realists' writings, and in Richard Posner's recent writing. See discussion above, supra note 125.

¹³³ For the call for such a balance within ADR discourse, see Bush, Robert A. Baruch, Efficiency and Protection, or Empowerment and Recognition: The Mediator's Role and Ethical Standards in Mediation, 41 Florida L. Rev. 253 (1989)Google Scholar. Menkel-Meadow, Carrie, Do the “Haves” Come out Ahead in Alternative Judicial Systems? Repeat Players in ADR, 15 Ohio St. J. Disp. Resol. 19 (1999)Google Scholar.

¹³⁴ Winick & Wexler, supra note 3, at 83.

¹³⁵ The reference here is to Lon Fuller's discussion of forms of social order, including adjudication, mediation, managerial judging and elections. See Fulller, Lon, The Principles of Social Order (2001)Google Scholar; Fuller, Lon L., The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978)CrossRefGoogle Scholar.

¹³⁶ See, e.g., Winick & Wexler, supra note 3, at 116-117. The most important role of the domestic violence court is presented as “to confront the perpetrator's cognitive distortions.” Id. at 117. The need to address the victim's needs and to make the offender accountable is recognized but the main focus is on the offender. See also, Wexler, David B., Robes and Rehabilitation: How Judges Can Help Offenders “Make Good?,” 38 Court Rev. 18 (2001)Google Scholar: “In the criminal law context, the challenge for therapeutic jurisprudence is multifaceted, and includes a concern not only for defendants, but also for other drawn into the process, such as victims and jurors.”

¹³⁷ See, e.g.. the discussion in Winick & Wexler, supra note 3, 231-248, 276-277.

¹³⁸ See supra note 96.

¹³⁹ For an elaboration of such an approach in the realm of domestic violence and for a discussion of the ways mandatory state interventions replicate the rejection, degradation, terrorization, social isolation and other traumatic experiences of battered women, see Mills, Linda G., Killing Her Softly: Intimate Abuse and the Violence of State Intervention, 113 Harv. L. Rev. 551 (1999)CrossRefGoogle Scholar. See also, Mills, Linda G., Insult to Injury: Rethinking Our Responses to Intimate Abuse (2003)Google Scholar. See also Tsai, Betsy, The Trend Toward Specialized Domestic Violence Courts: Improvements on an Effective Innovation, 68 Fordham L. Rev. 1285 (2000)Google Scholar.

¹⁴⁰ See also Schopp, supra note 108. The author offers to apply TJ to restorative justice conferences, since the latter can inform the normative arguments of restorative justice. For a theoretical elaboration of the restorative justice worldview and a reflection on the perception of justice it suggests see also Christie, Nils, Limits to Pain 37–52 (1982)Google Scholar; Zehr, supra note 96, at 33-43, 63-94. On the paradigmatic shift which the restorative justice approach suggests see Martin, Wright & Claassen, Ron, The Paradigm of Restorative Justice (Paper for conference at Tel-Aviv, May 2002)Google Scholar.

¹⁴¹ See Menkel-Meadow, supra note 97, at 1613.

¹⁴² See Menkel-Meadow supra note 99, at 1.

¹⁴³ For a discussion of the impact of the problem solving courts on the role of lawyers, see Kluger, Judy H., The Impact of Problem Solving on the Lawyer s Role and Ethics, 29 Fordham Urb. L.J. 1892 (2002)Google Scholar. Lawyers in problem-solving courts have the challenge of ensuring that the cooperative atmosphere in the problem-solving court does not turn into capitulation. They also learn to be cooperative and to work in a team. Winick, Bruce, Redefining the Role of the Criminal Defense Lawyer at Plea Bargaining and Sentencing a Therapeutic Jurisprudence/Preventive Law Model, 5 Psychol. Pub. Pol'y & L. 1034 (1999)Google Scholar. For a discussion of the therapeutic role of counsel in litigation in general, see Winick, Bruce, Therapeutic Jurisprudence and the Role of Counsel in Litigation 37 Cal. W. L. Rev. 105 (2000)Google Scholar. For a preventive law-TJ perspective on the lawyer's role, see Stolle, Dennis P. & Wexler, David B., Therapeutic Jurisprudence and Preventive Law: A Combined Concentration to Invigorate the Everyday Practice of Law, 39 Ariz.. L. Rev. 25 (1997)Google Scholar.

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