By Andrew Siske, CFCC Student Fellow (2016-2017)

Early on as a CFCC Student Fellow, I learned about therapeutic jurisprudence (TJ), which can be defined as “the study of the role of law as a therapeutic agent.”[1]  TJ represents a normative understanding of law which aims to identify the beneficial and harmful consequences of law, with the goal of bolstering the former while minimizing the latter.[2]  Toward this end, TJ “seeks to apply social science to examine law’s impact on the mental and physical health of the people it affects.”[3]

During our weekly seminars, the Student Fellows have been exposed to several notable examples of TJ in practice, such as problem-solving courts,[4] the use of restorative practices for student discipline,[5] and the implementation of Unified Family Court models.[6]  As interesting as I’ve found these applications, my curiosity has been aroused most by TJ’s theoretical basis and its most basic implicit normative claim that social science should inform the development of law.  Consequently, the CFCC Student Fellows Program has left me most curious to understand this question: To what extent can social science serve as an authority to law?

The Supreme Court has considered – indeed relied on – social science in coming to some controversial holdings. Take, for example, Roper v. Simmons, a 2005 decision in which a 5-4 majority held that executing an individual who committed a capital crime before turning eighteen constituted cruel and unusual punishment in violation of the Eighth Amendment.[7]  In reaching this decision, the court relied heavily on research from developmental psychologists to establish that adolescents were categorically less culpable than adults.[8]  Specifically, the Court drew from psychological theory and research to establish the following “[t]hree general differences” between minors and adults:

1. Minors are generally less mature than adults
2. Minors have an increased vulnerability to outside influences, such as peer pressure, and
3. Minors’ character structures are comparatively “transitory.”[9]

The Court concluded that these differences “render suspect any conclusion that a juvenile falls among the worst offenders.”[10]

While Roper was far from the first instance when the Supreme Court found that adolescents differ from adults, the extent to which it embraced developmental science in reaching its decision was “new and noteworthy.”[11]  However, while it reached an exciting conclusion, the Roper Court neglected to explain the methods used by its cited studies or why these studies were particularly authoritative.  Indeed, Justice Scalia offers this very critique in a scathing dissent, in which he accuses the Court of “picking and choosing [studies] that support its position.”[12]  As much as I agree with the conclusion in Roper, I can’t help but agree with Justice Scalia that the majority inadequately justified its use of the particular studies it cited.

Reading Roper has left me wondering how social science will be used in future legal decisions and to what extent TJ’s success is connected to the Supreme Court’s acceptance of social science as a legitimate source of authority.

To what extent do you think social science should serve as an authority in Supreme Court jurisprudence and in courts in general?

If you think social science can properly inform law, to what extent do you believe the Court is obligated to describe the research or theory it uses?  How much detail or what details would suffice?

Do you think the long-term viability of therapeutic jurisprudence depends at all on whether social science is accepted as a source of authority in the courts?  Or will TJ and its practical applications thrive, regardless of whether social science is acknowledged as legitimate authority by the courts?

[1] Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, 185, Psychology, Public Policy, and Law, Vol 3(1), Mar 1997.

[2] Id. at 189 (emphasis added).

[3] Id. at 188 (emphasis added).

[4] Kathleen Seifert, Review of Problem-Solving Courts in Maryland, Sayra and Neil Meyerhoff Center for Families, Children, and the Courts, Oct. 18, 2016, https://ubaltlawcfcc.wordpress.com/2016/10/18/review-of-problem-solving-courts-in-maryland/.

[5] Christelle-grace Lowe, For Restorative Practices, So No Child Can Be Left Behind, Sayra and Neil Meyerhoff Center for Families, Children, and the Courts, Oct. 11, 2016, https://ubaltlawcfcc.wordpress.com/2016/10/11/for-restorative-practices-so-no-child-can-be-left-behind/.

[6] Barbara A. Babb, Unified Family Courts: An Interdisciplinary Framework and a Problem-Solving Approach, Problem Solving Courts: Social Science and Legal Perspectives, Editors: Richard L. Wiener, Eve M. Brank (2013).

[7] Roper v. Simmons, 543 U.S. 551, 570-71 (2005).

[8] Emily Buss, Developmental Jurisprudence, 88 Temp. L. Rev. 741, 742 (2016).

[9] Roper, 543 U.S. at 569-70.

[10] Id. at 570.

[11] Buss, supra note 8, at 743.

[12] Roper, 543 U.S. at 616-17 (Scalia, J., dissenting).