Mental Health Court Judges as Dynamic Risk Managers: A New Conceptualization of the Role of Judges

Although risk management has been studied in a variety of contexts, risk management has not been traditionally framed or analyzed as a function of the judiciary. This article examines how mental health court judges take on risk management functions. This article does not argue for or against judges taking on risk management functions but instead, attempts understand how risk management approaches by judges play a growing role in the criminal court process. I argue that mental health court judges are “dynamic risk managers.” Rather than simply processing cases and allowing criminal defendants with mental illnesses to cycle in and out of the criminal justice system, judges manage risk and simultaneously attempt to resolve the underlying mental illness and heal the defendant. Specifically, with the assistance of team members, including the public defender, prosecutor, behavioral and mental health specialists, and others, the judge performs three tasks: (1) she conducts a risk assessment in which he evaluates the defendant’s potential harm to himself and the public; (2) she evaluates and implements a treatment plan designed to manage and reallocate the defendant’s risk; and (3) she monitors the risk over a period of time often requiring frequent return visits by the defendant. Judges behave dynamically because they continually assess and adjust the management plan depending on how the offender is progressing. I show how this new conceptualization of the judge’s role affects how the criminal justice system processes defendants. When performing risk management, mental health court judges function as a hybrid social worker (diagnosing and implementing a plan) and probation officer (monitoring the offender to ensure compliance), focusing less on group characteristics and managing the risk of categories of people to effectuate incapacitation and other non-rehabilitative goals, and more on therapeutically intervening in each individual’s life. When functioning in its ideal form, the collaborative, team-oriented approach of mental health courts shifts focus of the criminal process toward healing and away from punishment

A New Institutional Theory of Insurance

Insurance law scholars often analyze the forms and functions of insurance and discuss the various ways that insurance institutions (i.e., insurance companies, brokers, and agents) impact society. Within these frameworks, scholars often draw from law and economics principles to understand insurance company and insured behavior. Analyses of insurance law view law as “top-down” and exogenous to the insurance institutions that draft, market, and sell insurance. In other words, law is treated as formed and defined outside of insurance institutions by courts, legislatures, and administrative agencies, and the role of the insurance industry is limited to reacting to law by either complying or not complying with law often due to rational, strategic considerations. By exploring how and why insurance impacts society, and why insurance companies wield considerable influence in society, insurance law scholars lay an excellent foundation for thinking about insurance and insurance institutions. While existing approaches are helpful, there is not an insurance theory anchored in organizational behavior, culture, and decision making that explains how insurance companies respond to law. This Article suggests that the relationship between legal regulation and insurance institutions is more “bottom-up” than we think. The interaction between insurance companies and legal regulation is best illustrated not by examining the forms or functions of insurance or the insurance industry’s broad impact on society, but rather through a processual model in which insurance organizations influence not just private law but public law. I show how insurance institutions construct the meaning of compliance with antidiscrimination laws through drafting, marketing, and selling Employment Practice Liability Insurance; use the National Association of Insurance Commissioners to influence legislation and regulation; and shape the nature of property insurance regulatory frameworks. This Article, therefore, offers a theory that explains insurance industry behavior and, in particular, how insurance companies respond to laws in ways that end up influencing the meaning of law, not just in insurance companies’ own legal environment, but also among public legal institutions such as courts, legislatures, and administrative agencies