The intended and unintended consequences of problem-solving courts

Abstract

In considering the role of problem solving courts, this chapter examines the larger structure of the US legal system and legal education. Problem solving courts developed as a way to provide innovative and different approaches to dealing with legal cases; their very existence demonstrates that the traditional system was lacking in some way. Yet, despite the benefits and successes highlighted in the other chapters of this book, there are unintended consequences of these court alternatives. For instance, in problem solving courts the judges' role moves away from the mechanical rule arbiter and into a more compassionate helper. However, judges' training generally does not match this role, beyond a hodgepodge of continuing legal education and self-selected seminars. The tendency then is for these judges, and their courts, to regress back toward the more criminal courts from which problem solving courts were an intended alternative. We propose that the only way to resolve this predicament is to start with the current legal education. The old way of traditional courts focusing only on the sole issue presented before them has transformed into the idea that courts, and those who work within them, should serve a greater purpose and be prepared to take different and innovative approaches. However, the training for those who work in and lead these courts may not be adequately providing the necessary tools to meet the needs of these new and innovative approaches. A deeper and more comprehensive focus on empirical legal studies is one such approach that needs to be a focus in law schools. Another is a restructuring of the legal education to prepare law students for the actual work they will do. In particular, law schools should provide their students with a viable way to specialize their training, in some ways analogous to medical training. Such training could provide formal specializations akin to those in the medical model, while at the same time providing opportunities for hands-on legal training utilizing an apprenticeship model. Although our suggested changes to legal education would likely extend the time of law school training, these changes acknowledge that the legal world does not exist in a vacuum - other forces (and the work of other fields) are continuing to grow. The legal educational system is at a time when it can and should make some changes; such changes will improve the court systems - including (and especially) problem-solving courts.