Date of this Version
Court Review, Volume 45, Issue 3, 116-121
State court systems have done much in recent years to deepen their “problem-solving” qualities. Across the country, courts have adopted court-annexed mediation programs and developed a variety of specialty courts tailored to drug and alcohol abuse, domestic violence, mental health, homelessness, and sexual offenders. These innovations have broadened the scope in which legal problems are understood and deepened the level of engagement between legal system personnel and claimants/defendants. They have spawned thoughtful reflections by judges and lawyers about the impact and effectiveness of legal institutions and methods as exemplified by the Therapeutic Jurisprudence and Comprehensive Law movements.
“Preventive Law” could be considered the next frontier for American courts. Although Preventive Law is making steady progress within the practicing Bar, implementation of its concepts are especially challenging for the judiciary. Yet its simple truths are enduringly appealing for every part of the legal system. Why should the pain and expense of an injury be endured if it could have been averted? It is almost always easier and cheaper to prevent a dispute than to fight over it. This essay explores the prospects and obstacles for general-jurisdiction judges to participate in the movement toward preventing legal problems as well as in resolving them well and creatively.
The essay begins by connecting problems with procedures generally, describing the importance of a good fit. Part II suggests, however, that in recent years, legal problems have taken on new shapes that strain the seams and buttons of traditional adjudication. ADR and Problem-Solving Courts may have evolved precisely as a way of grafting new procedures onto changing legal problems. Part III identifies how Preventive Law differs from Problem Solving, and some rule-of-law obstacles that confront judges who may wish to employ stronger preventive methods. Finally, the essay explores how judges might participate in Preventive Law within their traditional powers and jurisdictional authority.