Law, Literature, and Therapeutic Jurisprudence

Transcription

1 Law, Literature, and Therapeutic Jurisprudence Amy D. Ronner Carolina Academic Press Durham, North Carolina

2 Copyright 2010 Amy D. Ronner All Rights Reserved Library of Congress Cataloging-in-Publication Data Ronner, Amy D. Law, literature, and therapeutic jurisprudence / Amy D. Ronner. p. cm. ISBN (alk. paper) 1. Law and literature. 2. Law in literature. 3. Therapeutic jurisprudence. I. Title. PN56.L33R ' dc Carolina Academic Press 700 Kent Street Durham, North Carolina Telephone (919) Fax (919) Printed in the United States of America

3 Dedicated to my husband, Michael P. Pacin, M.D., who makes all good things possible, and (borrowing the words of poet Theodore Roethke) is lovely in [his] bones.

4 Contents Acknowledgments ix Chapter One Law, Literature, and Therapeutic Jurisprudence: A Multidisciplinary Partnership 3 I. Introduction 3 II. Law and Literature 6 III. Therapeutic Jurisprudence 17 IV. A Natural Partnership 28 V. The Organization of the Book 41 Chapter Two Law, Literature, and Therapeutic Criminal Justice 45 I. Introduction 45 II. Therapeutic Jurisprudence and Criminal Practice 46 A. Problem Solving Courts and TJ Practice 46 B. Confessions 52 III. Melville and the Therapeutic Sixth Amendment 56 A. Introduction 56 B. The Sixth Amendment and Voice 61 C. The Story of Billy Budd, Sailor 66 D. Billy Budd as the Voiceless Accused 69 E. Summation 84 IV. Dostoyevsky and Therapeutic Confessions 89 A. Introduction 89 B. Confessions and the Constitution 93 C. Raskolnikov s Compulsion to Confess 108 D. Dostoyevsky s Lessons in Therapeutic Jurisprudence 128 E. Summation 146 V. Conclusion 148 vii

5 viii CONTENTS Chapter Three Law, Literature, and Anti-Therapeutic Tribunals 151 I. Introduction 151 II. Anti-Therapeutic Tribunals and The Crucible 156 A. The Forces 159 B. The Hunters 165 C. The Damage 168 D. Miller s Lessons in Anti-Therapeutic Justice 170 III. Anti-Therapeutic Tribunals and Harvard s Secret Court 173 A. The Forces 176 B. The Hunters 181 C. The Damage 186 D. Wright s Lessons in Anti-Therapeutic Justice 193 IV. Anti-Therapeutic Tribunals Today 199 A. The Forces 202 B. The Hunters 205 C. The Damage 220 V. Conclusion 223 Chapter Four Law, Literature, and Therapeutic Legal Education 233 I. Introduction 233 II. Melville s Bartleby 237 A. The Story 237 B. The Critics 239 III. Lessons in Therapeutic Jurisprudence 247 IV. Contemporary Law Practice 253 A. Human Machines 255 B. Walls 259 C. Hunger 263 V. Therapeutic Legal Education 268 A. Legal Education and Change 269 B. The Law School Clinics 271 C. The TJ Clinic: A Vaccine against Bartleby Syndrome 276 VI. Conclusion 286 Chapter Five Conclusion: A Crystal Age Plus Passion 291 Index 297

6 Acknowledgments Because so many friends, colleagues, administrators, and scholars have helped me in many ways, there are too many to thank. Nevertheless, I will give it a try. Special appreciation is due to my mentor, Professor Bruce J. Winick, who gave his precious time to ensure that this book would be born. Further, if it were not for Professor Winick, I probably would not have explored that synergy between Law and Literature and Therapeutic Jurisprudence. I would like to thank both Professors Winick and David B. Wexler, the co-founders of Therapeutic Jurisprudence, for introducing me to their inter-disciplinary movement and for including me in the many conferences and events that fostered my development as a teacher and scholar. I would also like to mention that Professors Winick and Wexler s many excellent books and articles have helped shape my career and philosophy. I also thank John McShane and Professors Barbara Babb, Marjorie Silver, Thomas Barton, and Bernie Perlmutter for being such great people and for cheering me on. A major thank you is due to the Honorable Juan Ramirez, Jr., Chief Judge on the Third District Court of Appeal in Florida, who first came to me with Billy Budd and invited me to be his co-author in an article on Billy Budd and the Sixth Amendment. Not only did Judge Ramirez encourage me to connect my own Ph.D. studies with my legal background, but also agreed to have a portion of one of this book s chapters build upon ideas in our article. This book is, to a great extent, about the power of the human heart. I want to acknowledge how lucky I am to have found a publisher with a heart of gold: I thank Keith Sipe of Carolina Academic Press profusely and extend appreciation to other caring people, like Linda Lacy, Karen Clayton, and Martha Hopper, at CAP for their wonderful work and support. In addition, St. Thomas University School of Law has played a significant role in this book. I would like to thank my President, Monsignor Franklyn Casale, for supporting all of my endeavors and for being so kind to me over the years. I also thank Monsignor Andrew Anderson, who is a true champion of academic freedom and scholarly dialogue. My law school Dean, Alfredo Garcia, is also amazing: he has been generous with his time, advice, research ix

7 x ACKNOWLEDGMENTS stipends, and an unconditional friendship that spans almost two decades. Associate Dean Cecile Dykas also deserves applause for her painstaking efforts to facilitate my writing schedule and create a peaceful environment one that nurtures creativity. I would like to thank all of my friends and colleagues on the faculty. Here I extend a special thank you to Professors Daniel R. Gordon and Stephen Plass, both of whom mentored me and pushed me to accomplish my goals when I first made that leap from private practice back to academia. Further, I want Professor John Hernandez to know that he is precious and indispensable: I thank him for giving me materials and ideas that have culminated in books and articles. Professor Lenora Ledwon, a Law and Literature guru, also deserves recognition for being a role model and source of inspiration. Further, this book would not have been completed without our law library administration and staff: while I thank all of them, I give extra credit to Karl T. Gruben for always being willing and ready to help, and to Katherine Brown, who, with her humor, energy, talent, and background in law and literature, went beyond the call of duty in assisting me with research. Because segments of chapters build upon ideas introduced in a previously published article, in Touro Law Review, I would like to thank them for giving me permission to incorporate revised portions of The Learned-Helpless Lawyer. I also thank Sarah Marx, who was Touro s Editor-in-Chief, for being such a great help to me with the article itself and with the effort to spread the word about Therapeutic Jurisprudence. I thank past research assistants, Gail Hamaty-Bird and Raisa Romanaelle, for their help. Here I cannot thank enough my past research assistant/teaching assistant and right arm, Warren Hawkins, who helped edit the book on top of a demanding workload. I also thank my present research assistant, A. Starkey De Soto, who is both brilliant and diligent. Further, I thank my faculty assistant, Mariela Torres, for her support with this and with everything I have done over the past eighteen years. I also thank administrative assistants Elaine Aliberti and Sharon L. Bogard, who have been caring and, at times, even life-saving. There are other individuals that I carry around in my heart. My dear friend, ex-law student, fine lawyer, and super-family man, Brett Barfield, has fielded me valuable sources of information, has shared my hopes, and has inspired me for many years. Thank you, Brett! I also thank one of the finest lawyers I know, Elizabeth F. Schwartz. Although Ms. Schwartz is actively engaged in making the world a better place, she has never hesitated to give me time and help and share her thoughts. In addition, I could not publish a book without thanking my oldest friend from childhood, Susan Weiner, who has been a willing adventurer on our decades-long journey of trauma, joy, and change.

8 ACKNOWLEDGMENTS xi Finally, I thank once again my husband, Michael P. Pacin, M.D., who is the finest human being I have ever known. Without his patience, even temperament, and love, nothing would ever get done. I also thank the family (my only family), the one that Michael has given me: my sister-in law and her husband, Marilyn and Dan Beckman; my artist sister-in law, Phyllis Pacin; my step-children, Marc and Lisa Pacin; and my in-laws, Alice and Sid Pacin, who immediately embraced me as their daughter.