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Michael L Perlin - One of the best experts on this subject based on the ideXlab platform.
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changing of the guards david wexler therapeutic jurisprudence and the transformation of legal scholarship
Social Science Research Network, 2018Co-Authors: Michael L PerlinAbstract:This article – a tribute to Professor David Wexler – explores how and why the idea of therapeutic jurisprudence first came to him, traces its early development, and contextualizes it in the changes in modern mental Disability Law in the 1980s. It then sketches out the core principles of this school of legal thought, and considers its expansion beyond mental Disability Law, both substantively (as it was applied to other areas of the Law, some related to mental Disability Law, and some totally different), procedurally (considerations of how therapeutic jurisprudence methodologies could restructure all of the legal system, including the role of courts, legislatures, administrative agencies and Lawyers), and professionally (as others beyond Lawyers began to embrace it). Finally, it speculates as to the future, using as its fulcrum the just-created International Society of Therapeutic Jurisprudence.
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Sex, Sexuality, Sexual Offending and the Rights of Persons with Mental Disabilities
MDPI AG, 2017Co-Authors: Michael L Perlin, Heather Ellis Cucolo, Alison J. LynchAbstract:Although the legal issues related to sexual autonomy and sexual offending are significantly different, the resistance to providing adequate and effective counsel and the employment of the vividness heuristic (to privilege anecdote and reject valid and reliable research) is similar in both cases. The past forty years has seen an explosion of interest in mental Disability Law, and a significant expansion of rights for the population of persons with mental disabilities, both in institutions and the community, during which the society has witnessed a revolution in American mental Disability Law. It saw the first broad-based, federal civil rights statutes enacted on behalf of persons with mental disabilities. It witnessed the creation of a “patients’ bar” to provide legal representation to such persons. But this revolution largely bypassed persons seeking to argue for sexual autonomy and seeking to apply procedural and substantive due process to matters involving invocation of the sexually violent predator status. However, at the same time that all this happened, another parallel set of developments has had a profound application on mental Disability Law—on case Law, statutes, administrative regulations and Lawyers’ roles. The expansion of the school of legal analysis known as therapeutic jurisprudence has caused scholars to reconsider many of the basic principles of this area of Law, and it is critical that any analysis of mental Disability Law take the insights of this area seriously. The question we address in this paper is this: although there has been a general “revolution” in mental Disability Law, there are those whom it has not affected. To what extent does the Law that governs sexual autonomy and that governs matters involving alleged sexually violent predators comport with these therapeutic jurisprudence principles? This paper considers that question
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there must be some way out of here why the convention on the rights of persons with disabilities is potentially the best weapon in the fight against sanism
Social Science Research Network, 2013Co-Authors: Michael L PerlinAbstract:It is impossible to consider the impact of anti-discrimination Law on persons with mental disabilities without a full understanding of how sanism permeates all aspects of the legal system – judicial opinions, legislation, the role of Lawyers, juror decision-making – and the entire fabric of society. For those unfamiliar with the term, I define "sanism" as an irrational prejudice of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that permeates all aspects of mental Disability Law and affects all participants in the mental Disability Law system: litigants, fact finders, counsel, and expert and lay witnesses. Notwithstanding over two decades of anti-discrimination Laws and, in many jurisdictions, an impressive corpus of constitutional case Law and state statutes, the attitudes of judges, jurors and Lawyers often reflect the same level of bigotry that defined this area of Law half a century ago. The reasons for this are complex and, to a great extent, flow from centuries of prejudice – often hidden prejudice, often socially acceptable prejudice – that has persisted in spite of prophylactic legislative and judicial reforms, and – at least superficially – an apparent uptick in public awareness. I have railed multiple times about the "irrational," "corrosive", "malignant" and "ravaging" effects of sanism, but its "pernicious power" still poisons all of mental Disability Law.The recently-ratified Convention on the Rights of Persons with Disabilities (CRPD) is the most revolutionary international human rights document – ever – that applies to persons with disabilities. The Disability Convention furthers the human rights approach to Disability and recognizes the right of people with disabilities to equality in most every aspect of life. It firmly endorses a social model of Disability – a clear and direct repudiation of the medical model that traditionally was part-and-parcel of mental Disability Law. It calls for "respect for inherent dignity" and "non- discrimination." Subsequent articles declare "freedom from torture or cruel, inhuman or degrading treatment or punishment," "freedom from exploitation, violence and abuse," and a right to protection of the "integrity of the person."In this paper, I consider the impact that the Convention is likely to have on sanism. First, I will briefly discuss both our sanist past and our sanist present. Then, I will consider how the CRPD has the greatest potential for combating sanism, and for changing social attitudes. In this latter inquiry, I will also draw on the tools of therapeutic jurisprudence. Then, I will offer some brief and modest conclusions.
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there must be some way out of here why the convention on the rights of persons with disabilities is potentially the best weapon in the fight against sanism
Psychiatry Psychology and Law, 2013Co-Authors: Michael L PerlinAbstract:It is impossible to consider the impact of anti-discrimination Law on persons with mental disabilities without a full understanding of how sanism permeates all aspects of the legal system – judicial opinions, legislation, the role of Lawyers, juror decision-making – and the entire fabric of society. For those unfamiliar with the term, I define “sanism” as an irrational prejudice of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, 1 that permeates all aspects of mental Disability Law and affects all participants in the mental Disability Law system: litigants, fact finders, counsel, and expert and lay witnesses. 2 Notwithstanding over two decades of anti-discrimination Laws 3 and, in many jurisdictions, an impressive corpus of constitutional case Law and state statutes, 4 the attitudes of judges, jurors and Lawyers often reflect the same level of bigotry that defined this area of Law ...
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promoting social change in asia and the pacific the need for a Disability rights tribunal to give life to the un convention on the rights of persons with disabilities
2012Co-Authors: Michael L PerlinAbstract:There is no question that the existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental Disability Law, there is now a remarkably robust body of case Law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission on Human Rights.In Asia and the Pacific region, however, there is no such body. Many reasons have been offered for the absence of a regional human rights tribunal in Asia; the most serious of these is the perceived conflict between what are often denominated as “Asian values” and universal human rights. What is clear is that the lack of such a court or commission has been a major impediment in the movement to enforce Disability rights in Asia.The absence of such a body has become even more problematical since the United Nations’ Convention on the Rights of Persons with Disabilities has been ratified. Finally, there is now “hard Law” clearly establishing the international human rights of persons with disabilities, but, without a regional enforcement body, we cannot be overly optimistic about the “real life” impact of this Convention on the rights of Asian and Pacific region persons with disabilities.The research is clear. In all regions of the world, persons with mental disabilities – especially those institutionalized because of such disabilities – are uniformly deprived of their civil and human rights. The creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP) would be the first necessary step leading to amelioration of this deprivation. It would be a bold, innovative, progressive and important step on the path towards realization of those rights. It would also, not unimportantly, be – ultimately – a likely inspiration for a full regional human rights tribunal in this area of the world. If, however, it were to be created, it is also clear that it would be an empty victory if there were not Lawyers available to represent individuals who seek to litigate there.In this paper, I first consider the existence and role of regional human rights tribunals in other parts of the world, and then briefly discuss some of the important Disability rights cases litigated in those regions so as to demonstrate how regional tribunals can have a significant impact on the lives of persons with disabilities. Then, I consider why there is a need for the DRTAP, looking at the absence of such bodies in Asia and the Pacific, the need for such a body, focusing specifically on the gap between current domestic Law “on the books” and how such Law is practiced in “reality”, as well as the importance of what is termed the “Asian values” debate, concluding that this debate leads to a false consciousness (since it presumes a unified and homogenous multi-regional attitude towards a bundle of social, cultural and political issues), and that the universality of human rights must be seen to predominate here. I then explain why the new Convention is paradigm-shattering, and why the creation of the DRTAP is timely, inevitable and essential, if the Convention is to be given true life. I then briefly summarize the work that has already been done on the creation of a DRTAP, and how this work needs to continue in the future. I conclude by looking at the role of counsel in the representation of persons with mental disabilities, the current lack of counsel experienced in this subject matter in Asia and the Pacific, and the importance of training Lawyers to provide adequate representation before DRTAP, insuring that this Tribunal has an authentic impact on social change.
Michael Ashley Stein - One of the best experts on this subject based on the ideXlab platform.
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the domestic incorporation of human rights Law and the united nations convention on the rights of persons with disabilities
Washington Law Review, 2008Co-Authors: Janet E Lord, Michael Ashley SteinAbstract:Abstract: This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification, or other means of incorporation. Specifically, we consider the transformative vision of the Convention on the Rights of Persons with Disabilities (CRPD or Convention) as a vehicle for fostering national-level Disability Law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in Disability rights advocacy, and we draw conclusions that bear generally upon human rights practice and scholarship. We contend that the role of human rights in domestic Law and process reflect important dimensions of international Law and practice. At the same time, human rights advocates and scholars often fail to account for the potentially mutually constitutive nature of domestication processes and the transformative role that human rights treaties perform within societies. Accordingly, we argue that effective Convention implementation must result in a human rights practice that includes Law reform or court-based advocacy, but also moves beyond it to include strategies that support deeper domestic internalization of human rights norms. INTRODUCTION The United Nations adopted the Convention on the Rights of Persons with Disabilities (CRPD or Convention)1 along with its Optional Protocol2 by general consensus on December 13, 2006.3 The CRPD opened for signature by States Parties on March 30, 2007, and a vast majority of States signed it soon thereafter. It attained the requisite twenty ratifications to trigger entry into force on May 3, 2008. 4 As the first human rights treaty of the twenty-first century, as well as the first legally enforceable United Nations instrument specifically directed at the rights of persons with disabilities, the Convention ushers in a new era of international human rights Law and practice.5 Fewer than fifty States Parties have any sort of systemic Disability legislation,6 and many of those are in need of drastic revision.7 In addition, the Convention mandates that its monitoring Committee review measures taken by States Parties to incorporate the treaty's obligations into domestic legal frameworks.8 States Parties are obligated to undertake a wide range of national-level implementation measures (some familiar to human rights treaties, and others reflecting obligations more frequently found in other international Law contexts), in order to give full effect to the CRPD provisions.9 Consequently, the CRPD initiates an unprecedented opportunity for domestic Law, policy reform, and genesis on behalf of the globe's "largest minority."10 This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification or incorporation.11 Specifically, we consider the transformative vision of the CRPD as a vehicle for fostering national-level Disability Law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in Disability rights advocacy and draw conclusions that bear more generally upon human rights practice and scholarship.12 Part I of this Article explains the processes influencing domestic incorporation of the CRPD. Next, Part II examines ways the Convention seeks to transform the respective domestic Laws - and social processes-of States Parties. Finally, Part III explores some of the challenges faced by States Parties in adopting the CRPD into domestic legal regimes and in achieving the transformative social change envisioned by the Convention drafters. I. PROCESSES OF DOMESTIC INCORPORATION It is axiomatic that international human rights standards are implemented domestically,13 and are intended to take root through processes of domestic incorporation.14 Human rights treaties reflect this most basic idea in provisions that create obligations at the international level to be given effect at the domestic level, thereby ensuring meaningful translation of international norms into national-level action. …
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the domestic incorporation of human rights Law and the united nations convention on the rights of persons with disabilities
Social Science Research Network, 2008Co-Authors: Michael Ashley Stein, Janet E LordAbstract:This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification, or other means of incorporation. Specifically, we consider the transformative vision of the Convention on the Rights of Persons with Disabilities (CRPD or Convention) as a vehicle for fostering national-level Disability Law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in Disability rights advocacy, and we draw conclusions that bear generally upon human rights practice and scholarship. We contend that the role of human rights in domestic Law and process reflect important dimensions of international Law and practice. At the same time, human rights advocates and scholars often fail to account for the potentially mutually constitutive nature of domestication processes and the transformative role that human rights treaties perform within societies. Accordingly, we argue that effective Convention implementation must result in a human rights practice that includes Law reform or court-based advocacy, but also moves beyond it to include strategies that support deeper domestic internalization of human rights norms.
Janet E Lord - One of the best experts on this subject based on the ideXlab platform.
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the domestic incorporation of human rights Law and the united nations convention on the rights of persons with disabilities
Washington Law Review, 2008Co-Authors: Janet E Lord, Michael Ashley SteinAbstract:Abstract: This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification, or other means of incorporation. Specifically, we consider the transformative vision of the Convention on the Rights of Persons with Disabilities (CRPD or Convention) as a vehicle for fostering national-level Disability Law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in Disability rights advocacy, and we draw conclusions that bear generally upon human rights practice and scholarship. We contend that the role of human rights in domestic Law and process reflect important dimensions of international Law and practice. At the same time, human rights advocates and scholars often fail to account for the potentially mutually constitutive nature of domestication processes and the transformative role that human rights treaties perform within societies. Accordingly, we argue that effective Convention implementation must result in a human rights practice that includes Law reform or court-based advocacy, but also moves beyond it to include strategies that support deeper domestic internalization of human rights norms. INTRODUCTION The United Nations adopted the Convention on the Rights of Persons with Disabilities (CRPD or Convention)1 along with its Optional Protocol2 by general consensus on December 13, 2006.3 The CRPD opened for signature by States Parties on March 30, 2007, and a vast majority of States signed it soon thereafter. It attained the requisite twenty ratifications to trigger entry into force on May 3, 2008. 4 As the first human rights treaty of the twenty-first century, as well as the first legally enforceable United Nations instrument specifically directed at the rights of persons with disabilities, the Convention ushers in a new era of international human rights Law and practice.5 Fewer than fifty States Parties have any sort of systemic Disability legislation,6 and many of those are in need of drastic revision.7 In addition, the Convention mandates that its monitoring Committee review measures taken by States Parties to incorporate the treaty's obligations into domestic legal frameworks.8 States Parties are obligated to undertake a wide range of national-level implementation measures (some familiar to human rights treaties, and others reflecting obligations more frequently found in other international Law contexts), in order to give full effect to the CRPD provisions.9 Consequently, the CRPD initiates an unprecedented opportunity for domestic Law, policy reform, and genesis on behalf of the globe's "largest minority."10 This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification or incorporation.11 Specifically, we consider the transformative vision of the CRPD as a vehicle for fostering national-level Disability Law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in Disability rights advocacy and draw conclusions that bear more generally upon human rights practice and scholarship.12 Part I of this Article explains the processes influencing domestic incorporation of the CRPD. Next, Part II examines ways the Convention seeks to transform the respective domestic Laws - and social processes-of States Parties. Finally, Part III explores some of the challenges faced by States Parties in adopting the CRPD into domestic legal regimes and in achieving the transformative social change envisioned by the Convention drafters. I. PROCESSES OF DOMESTIC INCORPORATION It is axiomatic that international human rights standards are implemented domestically,13 and are intended to take root through processes of domestic incorporation.14 Human rights treaties reflect this most basic idea in provisions that create obligations at the international level to be given effect at the domestic level, thereby ensuring meaningful translation of international norms into national-level action. …
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the domestic incorporation of human rights Law and the united nations convention on the rights of persons with disabilities
Social Science Research Network, 2008Co-Authors: Michael Ashley Stein, Janet E LordAbstract:This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification, or other means of incorporation. Specifically, we consider the transformative vision of the Convention on the Rights of Persons with Disabilities (CRPD or Convention) as a vehicle for fostering national-level Disability Law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in Disability rights advocacy, and we draw conclusions that bear generally upon human rights practice and scholarship. We contend that the role of human rights in domestic Law and process reflect important dimensions of international Law and practice. At the same time, human rights advocates and scholars often fail to account for the potentially mutually constitutive nature of domestication processes and the transformative role that human rights treaties perform within societies. Accordingly, we argue that effective Convention implementation must result in a human rights practice that includes Law reform or court-based advocacy, but also moves beyond it to include strategies that support deeper domestic internalization of human rights norms.
Perlin, Michael L. - One of the best experts on this subject based on the ideXlab platform.
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There\u27s Voices in the Night Trying to Be Heard: The Potential Impact of the Convention on the Rights of Persons with Disabilities on Domestic Mental Disability Law
DigitalCommons@NYLS, 2019Co-Authors: Perlin, Michael L., Weinstein NaomiAbstract:This paper carefully examines, through a therapeutic jurisprudence framework, the likely impact of the ratification of this UN Convention on society’s sanist attitudes towards persons with mental disabilities. We argue that it is impossible to consider the impact of anti-discrimination Law on persons with mental disabilities without a full understanding of how sanism -- an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry -- permeates all aspects of the legal system and the entire fabric of American society. Notwithstanding nearly thirty years of experience under the Americans with Disabilities Act (ADA), and an impressive corpus of constitutional case Law and state statutes, the attitudes of judges, jurors and Lawyers often reflect the same level of bigotry that defined this area of Law a half century ago. The reasons for this are complex and, to a great extent, flow from centuries of prejudice -- often hidden prejudice, often socially-acceptable prejudice -- that has persisted in spite of prophylactic legislative and judicial reforms , and a seeming (on the surface) significant uptick in public awareness. Soon after the passage of the ADA, advocates and scholars began to slowly turn their attention to the potential redemptive influence of international human rights Law. By 2008, the United Nations ratified the Convention on the Rights of Persons with Disabilities (CRPD), the most significant historical development in the recognition of the human rights of persons with mental disabilities, inspired by the participation of persons with disabilities and the clarion cry, Nothing about us, without us. This has led commentators to conclude that the CRPD is regarded as having finally empowered the \u27world\u27s largest minority\u27 to claim their rights, and to participate in international and national affairs on an equal basis with others who have achieved specific treaty recognition and protection. In this paper, we will consider whether the CRPD (still not ratified by the US) is likely to finally extinguish the toxic stench of sanism that permeates all levels of society. First, we will briefly discuss both our sanist past and our sanist present. Then, we will consider how the CRPD has the greatest potential for combating sanism, and for changing social attitudes. In doing so we will look at five universal core factors that must be considered when evaluating the likely impact of the CPRD. In this latter inquiry, we draw largely on the tools of therapeutic jurisprudence. We conclude by finding that the CRPD demands Law reform at the local and national level all over the world (we briefly consider Canadian Law in this paper, as an example of a Western nation that has ratified the CRPD)
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“Who Will Judge the Many When the Game isThrough?”: Considering the Profound DifferencesBetween Mental Health Courts and “Traditional”Involuntary Civil Commitment Courts
Seattle University School of Law Digital Commons, 2018Co-Authors: Perlin, Michael L.Abstract:For forty years, we have known that involuntary civil commitment hearings are—in most jurisdictions—“charades.” When the Supreme Court noted, in Parham v. J.R., that the average length of a civil commitment hearing ranged from 3.8 to 9.2 minutes, the reaction of many who had done these cases was, “What? So long?!” The characterization of such hearings as being a “greased runway” to a state institution has never been disputed. Lawyers representing these individuals were bored or contemptuous; judges simply wanted to get cases moving; opposing counsel looked at their wrist watches to see when the cases would be done. This is not news to anyone who regularly did civil commitment hearings at any time since 1972 (the beginning of contemporary civil commitment Law, coinciding with the Supreme Court’s decision in Jackson v. Indiana); I, and others, have written about this many times. Some sixteen years ago, I wrote the following (and to the best of my knowledge, it has never been contradicted): “[T]he overwhelming number of cases involving mental Disability Law issues are ‘litigated’ in pitch darkness. Involuntary civil commitment cases are routinely disposed of in minutes behind closed courtroom doors.” In this Article, I will contrast this shabby track record with the promises of those mental health courts (MHCs) that operate as problem solving courts are supposed to operate, and I will discuss how these courts may provide due process and fair hearings. I will assess—via traditional “compare and contrast” means—these two ways of adjudicating cases involving persons with mental disabilities via the models of procedural justice and therapeutic jurisprudence, and I will end with some thoughts about other topics that must be considered in this context
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On Desolation Row: The Blurring of the Borders between Civil and Criminal Mental Disability Law, and What It Means to All of Us
DigitalCommons@NYLS, 2018Co-Authors: Perlin, Michael L., Dorfman Deborah, Weinstein NaomiAbstract:One of the great tensions of mental Disability Law is the unresolved, trompe d’oeil question of whether it is a subset of the civil Law, of the criminal Law, or something entirely different. The resolution of this question is not an exercise in formalism or pigeonholing, but is critical to an understanding of the future direction of mental Disability Law, the deeper meaning of US Supreme Court cases and important state legislative initiatives, and the whole array of hidden issues and agendas that lurk under the surface of mental Disability Law-decision making. As mental Disability Law has matured, a dual system appeared to have fallen into place: in civil cases, a patient was generally entitled to a relatively broad panoply of procedural and substantive due process rights in involuntary civil commitment and institutional rights decision making; on the other hand, the Supreme Court has made it explicit that defendants convicted of crimes would have fewer substantive treatment rights, specifying that at least in the area of the right to refuse treatment, “penological interests” would “trump” fundamental civil libertarian interests, and that insanity acquittees could have fewer substantive and procedural due process rights at retention and review hearings than would civil patients. Yet, subsequent important developments cast new light on this separation and call into question the future of a two-tiered mental Disability Law system: • the proliferation of so-called assisted outpatient treatment (AOT) statutes, of which New York’s Kendra’s Law is the most well-known example; • the expansion of sexually violent predator acts (SVPA), of which New Jersey’s Megan’s Law is often seen as the exemplar but which have been subject to Supreme Court scrutiny in cases from other jurisdictions such as Kansas v. Hendricks, Seling v. Young, Crane v. Kansas, and United States v. Comstock, • the policy implications of a system that provides no meaningful continuity of care, resulting in large numbers of persons continually “shuttling” between jails (or prisons) and mental hospitals, • and the sanctioning of the imprisonment of insanity acquittees in prison facilities. These overlaps blur the borderline between civil and criminal mental Disability Law in very troubling and problematic ways, and threaten to make this area of the Law even more pretextual than it currently is. Laws such as these enforce social control in punitive ways under the guise of the beneficence of civil commitment. Although the universes of individuals subject to statutes such as Kendra’s Law or Megan’s Law, those who are shuttled from jail to hospitals to the street for minor crimes, or those who have been found not guilty by reason of insanity appear quite different – in the first instance, persons not subject to the inpatient involuntary civil commitment power but who may be in danger of deterioration in the absence of forced treatment; in the second, persons who have been charged and/or convicted of violent sexual offenses who are targeted as potentially recidivistic pedophiles; in the third, persons charged with crimes that basically involve “nuisance activities,” and, in the fourth, individuals who have been found not responsible for the antecedent criminal action – there are important, and troubling, points in common in the structures of these kinds of Laws. Moreover, they all demonstrate comfort with a system in which many functions of civil and criminal mental Disability Law merge. Remarkably, until now, virtually no attention has been paid to this phenomenon. In this paper, we will first trace the development of the two-tiered mental Disability Law system (with a special focus on the right to refuse treatment). We will then review developments in AOT Law (focusing on Kendra’s Law), SVPA Law, continuity of care issues, and the imprisonment of insanity acquittees, and the blurring effects of each area and implications for the rest of mental Disability Law. We will next discuss those “blur” areas that may serve to, optimally, limit pretextuality (the creation and expansion of mental health courts, and the application of the Americans with Disabilities Act to cases arising out of the criminal justice system). We will then look at these issues from the perspectives of therapeutic jurisprudence, and then conclude with some modest recommendations
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Mental Disability Law: Cases and Materials, 3rd ed (2017)
DigitalCommons@NYLS, 2017Co-Authors: Perlin, Michael L., Cucolo, Heather Ellis, Lynch AlisonAbstract:This comprehensive casebook covers all areas of civil commitment Law, institutional rights Law, community rights Law, sex offenders Law, and the Americans with Disabilities Act. Mental Disability Law also explores all aspects of the criminal process, including all criminal competencies, the insanity defense, trial practice issues, sentencing and the death penalty. It is the only casebook available that considers the important factors that have shaped mental Disability Law — sanism, pretextuality, heuristics and false “ordinary common sense.” The third edition includes expanded new sections on therapeutic jurisprudence and international human rights Law.https://digitalcommons.nyls.edu/fac_books/1066/thumbnail.jp
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I\u27ve Got My Mind Made up: How Judicial Teleology in Cases involving Biologically based Evidence Violates Therapeutic Jurisprudence
DigitalCommons@NYLS, 2017Co-Authors: Perlin, Michael L.Abstract:Courts are, and have always been, teleological in cases involving litigants with mental disabilities. By “teleological,” I refer to outcome-determinative reasoning; social science that enables judges to satisfy predetermined positions is privileged, while data that would require judges to question such ends are rejected. In this context, judges treat biologically-based evidence in criminal cases involving questions of mental Disability Law so as to conform to their pre-existing positions. This applies to cases involving questions of the death penalty, the insanity defense, civil competency, incompetency to stand trial, questions related to malingering, and criminal sentencing, and more. In this paper, I will consider what the implications of this behavior are for future criminal procedure developments, and will show how this behavior violates the basic precepts of therapeutic jurisprudence. First, I will consider a range of teleological judicial behaviors. Then, I will consider how biologically-based evidence (including, but not limited to neuroscience evidence, is especially susceptible to these sorts of misjudgments, with a specific focus on how this damages the application of constitutional criminal procedure doctrines. Finally, I will consider how this behavior flies in the face of the basic tenets of therapeutic jurisprudence
Peter Bartlett - One of the best experts on this subject based on the ideXlab platform.
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the united nations convention on the rights of persons with disabilities and mental health Law
Modern Law Review, 2012Co-Authors: Peter BartlettAbstract:The United Nations Convention on the Rights of Persons with Disability (CRPD) took effect in 2008. This paper discusses a number of flashpoints where the CRPD will require real and significant reconsideration of English mental health and mental capacity Law. The CRPD introduces a new paradigm into international Disability Law, relying on the social model of Disability. While that is no doubt a good thing, there is as yet no clear sense as to how that is to be implemented. After providing an introduction to the Convention, the paper considers four specific areas: mental capacity Law (focussing on the provisions of the Mental Capacity Act 2005), psychiatric treatment without consent, civil detention of people with mental disabilities, and mental Disability in the criminal system (fitness to plead, insanity and diminished responsibility).