Rehabilitating Legal Scholarship - A Role for Therapeutic Jurisprudence?

David Yamada of Suffolk University Law School has recently posted a thoughtful and stimulating article to SSRN. It bears the title "Therapeutic Jurisprudence and the Practice of Legal Scholarship". The article is to be published in the University of Memphis Law Review. The article makes a novel, creative and important contribution to the expansion of TJ scholarship – examining how a TJ analysis can improve legal scholarship and at the same time promote a more rewarding experience for those involved in it.

I do not intend to repeat the contents of the article – I encourage you to read it in full. What follows are a few observations and some highlights from the article.

While Yamada’s critique relates to US law schools, much of what he said resonated with me in that some of the trends that he notes in legal scholarship in the US are now emerging in Australia – where I am currently teaching and writing about the law, therapeutic jurisprudence and non-adversarial justice. For example Yamada provides a cogent critique of the journal ranking system. Our scholarly legal fraternity in Australia has been grappling (and continues to grapple) with the introduction of a journals ranking system that effectively grades legal academics’ articles according to which journal in which they are published. The ranking of journals in which articles are published will have a significant bearing on how much money a law school (and legal scholars) can attract in funding.

As Yamada points out, journal ranking systems are often a poor measure of quality of content. They also do not measure the practical impact an article may have irrespective of where it is published. Ranking systems also can divert us from more profound aspects of our work. Being preoccupied with one’s status arising from rankings is a risk of such a system. As Yamada observes: “Forget soggy reflections on the deeper meaning of scholarly work; today’s faculty scholarship committees hold workshops on how to place law review articles in the most prestigious venues possible.” I hope this is not the direction in which we are headed in Australia.

How, then, can TJ help? Yamada suggests that there are certain qualities of good scholarly practice that are evident in TJ scholarship. First, rather than a focus on status, there is a focus on content and meaning and a willingness to encourage the scholarship of others and exchange ideas. He observes that TJ scholarship of a good standard is “is at once grounded and visionary”. Further, TJ literature is generally well-written, succinct and clearly explained rather than being cloaked in the mists of jargon and poor expression.

Moreover, TJ is inclusive – bringing in scholars and practitioners alike not only from the law but also from other disciplines whose interests intersect with the law’s concerns. I recall that at the Third International Conference on Therapeutic Jurisprudence in Perth, Australia, we had amongst our speakers, community members, architects, a police sergeant, corrections officers, lawyers, members of the judiciary and academics amongst others.

In emphasising the intellectual activist role of TJ – it is explicitly directed at law reform – Yamada sees a greater role of law schools in promoting scholar practitioners, practitioners of the law who can translate ideas into practice, who can bridge the “gap between scholarship and practice”. While not explicitly using the term “scholar practitioner”, some law schools already offer programs that have this potential. For example, Monash law school, at which I teach has a undergraduate unit that places students in one of its community legal centres working on formulating proposals for law reform (I regularly give a guest lecture in that unit on the use of TJ as a mechanism for promoting law reform).

At a time when the idealism and professional goals of many a law academic are under challenge from the economic/managerialist forces that seem to have an increasing influence in academia, David Yamada’s article is a breath of fresh air. Perhaps TJ can promote the wellbeing of legal scholars, showing that professional satisfaction and other aspects of their wellbeing are not tied to status above all things but are heavily influenced by the intellectual and other challenges of their work, their creativity, quality of output, ability to respect, support, encourage and collaborate with colleagues and their ability to make a difference for their students, profession and the community.