Addiction veridiction: gendering agency in legal mobilisations of addiction discourse

This paper explores the question of whether and in what ways the law and legal processes work to stabilise addiction as a health problem or ‘disease’. In undertaking this analysis, we also explore the associated gender implications of these practices and the means through which legal processes that stabilise addiction simultaneously stabilise gender. Using the work of science and technologies scholar Bruno Latour, in particular his anthropological analysis of scientific and legal ‘modes of existence’, we explore legal processes of what he calls ‘veridiction’ – or the specific processes by which law distinguishes truth from falsity – associated with addiction. We focus on processes that are largely hidden from public view and as such receive little scrutiny, but through which the meaning of addiction as a disease is secured. Our aim is to consider the role of legal negotiations in establishing agreed facts, and to explore lawyers’ understanding of these processes. We argue that although in public discourse judges are ascribed the status of the law’s key decision-making figures, lawyers’ accounts do not necessarily support this view. Instead, their accounts of the judicial process foreground their own and other lawyers’ role in decisions about addiction, despite an absence of training or education in the area. We also note that lawyers’ accounts suggest little independent oversight – even from judges – of the work lawyers do in stabilising addiction ‘facts’. Based on these observations, we consider the ways such processes of stabilisation impact on women in the legal system whose lives are in some way affected by discourses of addiction as a disease. We argue that legal practices of veridiction are centrally implicated in the making of both gender and health and that elements of these processes, which are not often publicly visible or subjected to scrutiny, require more analysis

Therapeutic Jurisprudence: Foundations, Expansion, and Assessment

Therapeutic Jurisprudence: Foundations, Expansion, and Assessment Founded in 1987 by law professors David Wexler and the late Bruce Winick, therapeutic jurisprudence (“TJ”) is a multidisciplinary school of legal theory and practice that examines the therapeutic and anti-therapeutic properties of law, policy, and legal institutions. In legal events and transactions, TJ inherently favors outcomes that advance human dignity and psychological well-being. Starting with original groundings in mental health and mental disability law, criminal law, and problem-solving courts, and with a geographic focus on the United States, TJ now embraces many aspects of law and policy and presents a strong international orientation. This Article provides a meta-level examination of the field, including its origins, core doctrinal and theoretical foundations, critical reviews, expansion into many areas of law, procedure, and legal institutions, and connections with other modalities of legal theory and practice. Furthermore, it assesses TJ’s standing and considers opportunities and challenges for the field’s expansion and growth. The intended purpose of this Article is two-fold: first, to spur discussions within the TJ community about the past, present, and future of the field and, second, to provide a substantive, yet accessible introduction to TJ for those who wish to learn more about it

“Satan’s Minions” and “True Believers”: How Criminal Defense Attorneys Employ Quasi-Religious Rhetoric and What It Suggests about Lawyering Culture

The notion of law as sacred, and lawyers as righteous saviors, may seem anachronistic in the current context of heavy caseloads and expedited processing in the criminal justice system. Nevertheless, language reflecting these ideals still permeates defense attorneys’ descriptions of their roles, their legal practice, and their relationships to their colleagues and adversaries. We examine this language – specifically, attorneys’ quasi-religious rhetoric – to better understand courtroom dynamics: how attorneys see themselves, their work, their colleagues, and their legal adversaries. In this analysis of semi-structured interviews with 30 defense attorneys, we find that attorneys use of quasi-religious rhetoric manifests as a cultural practice that helps to establish and maintain professional identities, boundaries, and relationships. Our findings also suggest that young and novice public defenders are likely to express especially zealous views, which may compromise their efforts to collaborate within the adversarial system, as well as contribute to burnout

The teaching of alternative dispute resolution in selected Australian law schools: towards second generation practice and pedagogy

Alternative dispute resolution (ADR) theory and practice can contribute to the development of non-adversarial practice in law; an approach that privileges non adversarial options over litigation and better addresses clients’ needs including the emotional concerns inherent in many legal disputes and issues of power and culture in conflict resolution. Additionally, emergent theory in negotiation and mediation, sometimes known as second generation practice and pedagogy, contends that these processes can lead to conflict transformation between parties, where there is fundamental change in the ways that parties perceive each other, the conflict and the larger societal issues that pertain to the dispute. Second generation practice differs from first generation paradigms in negotiation and mediation, because it is interactional rather than transactional and instrumental, relational rather than individualistic and does not privilege the rational over emotional concerns in conflict. Despite the potential of ADR to contribute in a positive manner to law, lawyers and parties a number of initiatives in ADR have been subverted by the traditional adversarial mindset of many lawyers. The rise of evaluative mediation, where parties are advised about the likely court outcomes of a dispute and sometimes pressured to settle, means that in the court-connected context the potential of alternative processes can be compromised. Evaluative mediation undermines party self-determination and the experience of procedural justice, whereby parties experience benefits from a third party hearing the story of their conflict. Legal education is a key site for the construction of legal practice. ADR in legal education is important to research in order to understand the ways that this area might better contribute to shaping the lawyers of the future. The teaching of ADR in legal education can contribute to law students developing a professional identity that privileges non-adversarial practice, and understanding the full potential of negotiation and mediation. This thesis explored the content and pedagogies used by law teachers in teaching the discipline area of ADR. The research was primarily constructivist and considered the teaching of ADR in two states in Australia, Victoria and Queensland. The methodology adopted included both qualitative and quantitative data through interviewing or surveying twenty nine ADR teachers and the content analysis of thirteen ‘main’ course guides dealing with the area of ADR. The data was gathered in late 2007 and 2008. This thesis uses various theoretical lenses to analyse the data, including non-adversarialism, particularly the works of Julie Macfarlane and Nickolas James. The thesis explored the complex forces affecting the place of ADR in legal education and made a number of findings, including the need to formalise a community of practice of ADR teachers in Australia in order to promote the teaching of second generation practice and pedagogy in negotiation and mediation. This community of practice is also necessary to lobby for appropriate funding of ADR pedagogy, particularly the funding of role-plays

Marriage of convenience or a match made in heaven? Collaboration between a Law School Clinic and a Commercial Law Firm

The cost of clinical legal education courses has always been a challenge to law schools. In the last 40 years clinicians have developed and trialed many different innovations in clinical law, in response to increased student demand for clinical experience, and greater pressure on the legal services market. Two common models are the in house clinic and the externship placement. This article explores the idea of a ‘reverse externship’ – with private solicitors coming into an in house clinic to assist in the supervision of students on placement. It tracks the development and implementation of this initiative, and reports on both the practical challenges and the pedagogical benefits that we encountered