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Problem-solving courts, therapeutic jurisprudence and the constitution : if two is company, is three a crowd?

Duffy, James (2011) Problem-solving courts, therapeutic jurisprudence and the constitution : if two is company, is three a crowd? Melbourne University Law Review, 35(2), pp. 394-425.

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Abstract

Court costs, resource-intensive trials, booming prison populations and the obduracy of recidivism rates all present as ugly excesses of the criminal law adversarial paradigm. To combat these excesses, problem-solving courts have evolved with an edict to address the underlying issues that have caused an individual to commit a crime. When a judge seeks to help a problem-solving court participant deal with issues like addiction, mental health or poverty, they are performing a very different role to that of a judicial officer in the traditional court hierarchy. They are no longer the removed, independent arbiter — a problem-solving court judge steps into the ‘arena’ with the participant and makes active use of their judicial authority to assist in rehabilitation and positive behavioural change. Problem-solving court judges employing the principles of therapeutic jurisprudence appreciate that their interaction with participants can have therapeutic and anti-therapeutic consequences. This article will consider how the deployment of therapeutic measures (albeit with good intention) can lead to the behavioural manifestation of partiality and bias on the part of problem-solving court judges. Chapter III of the Commonwealth Constitution will then be analysed to highlight why the operation and functioning of problem solving courts may be deemed unconstitutional. Part IV of this article will explain how a problem-solving court judge who is not acting impartially or independently will potentially contravene the requirements of the Constitution. It will finally be suggested that judges who possess a high level of emotional intelligence will be the most successful in administering an independent and impartial problem solving court.

Impact and interest:

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ID Code: 49376
Item Type: Journal Article
Additional URLs:
Keywords: Problem-solving court, Therapeutic Jurisprudence, Constitution, Catharsis, Empathy, The Pygmalion Effect, Countertransference, Emotional contagion, Emotional intelligence
ISSN: 0025-8938
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Copyright Owner: Copyright 2011 [Please consult James Duffy]
Copyright Statement: Although copyright in the manuscript remains with the author, if you wish to publish your manuscript elsewhere after it is published in the Review you undertake to obtain the Editors’ permission in advance to do so.
Deposited On: 28 Mar 2012 16:01
Last Modified: 13 Apr 2012 04:33

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