Legal Accents and Legal Borrowing:
American Exceptionalism in the
International Problem-Solving Court Movement
James L. Nolan, Jr.
Professor of Sociology
Williams College
Presented at
Tel Aviv University/Taubenshlag Conference
“New Directions in Criminal Court Research”
Tel Aviv
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May 16-17, 2007
Please do not cite, copy, or distribute this paper without permission of the author.
The Miami drug court in Dade County, Florida, started in 1989, is commonly
cited as the first of what has become a widespread international movement of problemsolving courts. Since 1989, nearly 1,200 additional drug courts have been established
throughout the United States. The judicial movement has continued to expand in two
important directions. First, the drug court model has been applied to other populations
in the American criminal justice system. In the U.S., there are now domestic violence
courts, mental health courts, community courts, DUI courts, homeless courts,
prostitution courts, and re-entry courts, inspired by—and in many cases formatted in the
same manner and style as—the drug court model. Today there are nearly 1,700
problem-solving courts in the U.S., approximately 500 of which are some type of
problem-solving court other than a drug court. Although American problem-solving
courts vary in important respects, they can generally be characterized by five defining
features: 1) close and ongoing judicial monitoring, 2) a multidisciplinary or team
approach, 3) a therapeutic or treatment orientation, 4) the altering of traditional roles in
the adjudication process, and 5) an emphasis on solving the problems of individual
offenders—hence the umbrella term of “problem-solving” that has emerged to describe
this new breed of courts.
The problem-solving court movement has expanded in a second important
direction. Not only has the model been applied to other populations in the criminal
justice community, but problem-solving courts have also been exported internationally.
American drug courts, for example, have been transplanted to Australia, Canada,
England, Scotland, and Ireland. Domestic violence courts have been developed in
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England, Scotland, Australia, and Canada. Both Australia and Canada have introduced
variations of mental health courts, and England and Australia have set up community
courts based on the Red Hook community court in New York.
This paper is one part of a larger research project that investigates comparatively
the development of problem-solving courts in the U.S., Australia, Canada, England,
Ireland, and Scotland. The work pays particular attention to the important role of
culture in determining the shape and style of problem-solving courts in different
national contexts. The growing literature on globalization provides a useful starting
point for making sense of the international borrowing of problem-solving courts. In
particular, Peter Berger offers a helpful framework for conceptualizing the various
consequences of the intersection between global (by which scholars often mean
American) and local cultures. Berger describes four possible responses to the
intersection between local cultures and the global culture: 1) rejection, 2) acceptance, 3)
the coexistence of the global and the local, and 4) synthesis. The last of these is what
George Ritzer refers to as hybridization, and what Roland Robertston has called
glocalization—that is, the synthesis of the global and the local. Legal actors in the five
non-U.S. regions to which problem-solving courts have been transplanted certainly
acknowledge that they are importing a legal product originating from the U.S., but they
also see themselves as adapting the product to fit their own local situation.
Consider, for example, the views of an Irish judge, who was at the time helping
to set up the Dublin drug court. He acknowledged the U.S. origins of the program, but
he was very clear that the innovation had to be adjusted to fit the particularities of the
Irish situation.
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You can take the huge enthusiasm of the Americans. You can take their generosity
in sharing their ideas with people and giving their time and knowledge . . . But in
the natural order of things, you tailor the program to what suits you best. Not
because you think there's anything wrong with the American system—but all
you're saying is, we're three thousand miles away from you, we have a different
culture, etc. And we've just got to tailor that, put up the cuffs, and make the suit fit
us.
If, as the Irish judge put it, a suit must be altered to fit the defining features of a
particular legal system, observing the alteration process is especially revealing as it
concerns related cultural differences.
This paper focuses on the unique forms the problem-solving courts assume in the
different localities and the story these differences tell about varying cultural habits and
sensibilities. Clifford Geertz writes that “the law is a distinctive manner of imagining
the real.”i The law’s distinguishing qualities, as such, provide a glimpse into the
peculiar social realities of a given society. Moreover, according to Geertz, law is local
knowledge: “local not just to place, time, class, and variety of issue, but as to accent.”ii
The notion of accent is especially helpful as it concerns a comparison of six Englishspeaking regions. Just as the distinctive accents of a shared language indicate very
profound cultural and regional differences, so too do the varying accents of local legal
innovations reveal important cultural differences.
In his discussion of law and local knowledge, Geertz proposes that “law sees.”
He also says that laws "tell stories."iii The question here, then, is: what do we see
through the transplantation of this legal innovation, and what story does it tell? Put
another way, what cultural differences are reflected in discernable legal accents? A
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comparison of problem-solving courts in these six regions reveals an interesting
difference between an American disposition characterized by enthusiasm, boldness, and
pragmatism, and the contrasting penchant of other countries toward moderation,
deliberation, and restraint.
The American Model
Enthusiasm
Consider first the predilections of the American courts, beginning with the
defining quality of enthusiasm. A visit to an American problem-solving court or a
discussion with an American problem-solving court judge quickly reveals that there is a
great deal of commitment to and personal investment in these programs. Judges and
other advocates of problem-solving courts are true believers, if you will, and they
believe that what they are invested in is something of profound historical significance.
Not only are they committed to their own local court programs, but they are often
proselytizers, wishing to spread the good news of problem-solving courts to their
immediate judicial colleagues—and, quite literally, to the rest of the world. Greg
Berman of the Center for Court Innovation (a New York-based institution dedicated to
the implementation and promotion of problem-solving courts) reflects the attitude of
many in this community when he urges advocates to look “for every possible
opportunity—PSAs, op-eds, public events—to spread the gospel of problem-solving
justice.”iv
Court officials in Phoenix, Arizona, certainly appear to follow Berman's advice.
Phoenix is one of many cities in the U.S. that has introduced multiple problem-solving
courts, including a drug court, a mental health court, a DUI court, and a domestic
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violence court. One judge, who was instrumental in the establishment of Phoenix's
mental health court, described the problem-solving court movement as “radical,
revolutionary, the trend of the future.” “It's the future of the law,” he said. “It’s the
future of justice.” Incidentally, this judge studied under David Wexler—one of the
leading architects of therapeutic juriprudence (TJ)—while a student at the University of
Arizona Law School. TJ is an important legal theory to which problem-solving courts
have been closely linked.
Both David Wexler and Bruce Winick, another major figure in the world of
therapeutic jurisprudence, likewise, speak in effusive terms about the advancement of
problem-solving courts. At an international conference in Edinburgh in the summer of
2002, for example, Winick spoke of the movement toward problem-solving courts as a
“paradigm shift,” while Wexler observed that “the courts are doing things they have
never done before . . . Courts are playing the bold role of problem-solvers . . . We all feel
we are on the verge of serious systemic change.” In their co-edited book, Judging in a
Therapeutic Key, Wexler and Winick similarly assert: “In the past dozen or so years, a
remarkable transformation has occurred in the role of the courts.”v
The title of another edited collection, put out by the Center for Court Innovation
in New York, likewise refers to the movement as no less than A Problem-Solving
Revolution.vi Using similar language, a judge and one of the leaders in the problemsolving court movement described the development as “nothing short of revolutionary.”
“What we are doing here,” she said, “is no less than a complete revolution in
jurisprudence.” Still another U.S. judge, who described herself as a “disciple” of the
movement and who has actually served as a drug court judge, a mental health court
judge, and a domestic violence court judge, said this of problem-solving courts: “I love
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it I tell you. I mean any place that we can expand it [we should].” In fact, someone had
approached her about the possibility of starting a court for people over 60 years of age.
Her response: “Do you want to start up a senior citizens court? I'm your woman.”
Two California judges have even surveyed judges and presented evidence that
problem-solving court judges have much higher rates of job satisfaction and feel better
about themselves while working in such a context.vii Judicial enthusiasm, as such, is
viewed as an asset to the movement. Indeed, Laurie Robinson, former Assistant
Attorney General in the U.S. Department of Justice, even argues that it is a feature of the
movement that should be fostered. She has said:
The energy, enthusiasm, and optimism embedded in the burgeoning problemsolving courts movement is a significant asset right now for the nation's
beleaguered justice system, one that should be . . . nurtured.viii
Boldness
A second and related feature of the American version of these courts is a certain
boldness in the actions of problem-solving court professionals—particularly the judges.
In her book, A Nation Under Lawyers, Mary Ann Glendon identifies two types of judges:
what she calls classical judges and romantic judges. The classical judge is characterized
by “modesty, impartiality, restraint, and interpretive skill,” whereas the romantic judge
is “bold, creative, compassionate, result-oriented, and liberated from legal
technicalities.”ix While these are clearly ideal types in the Weberian sense, one finds
among American problem-solving court judges a tendency toward the romantic, while
in the five other regions, judges generally tend toward the classical.
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Boldness is one of the defining qualities of Glendon's romantic judge. As it
concerns problem-solving court judges, this boldness is expressed in a number of ways.
American problem-solving court judges are activist judges. They are the leaders of the
movement, directing initiatives both inside and outside the courtroom. Some judges
have even engaged in fundraising to help support their programs. American problemsolving court judges are also bold in the sense that they recognize that the format of
problem-solving courts affords them more power and discretion than they would have
in a regular criminal court, and they are not afraid to use this increased power to “solve
the problems” of the individuals who come before them. Judges engage defendants (or
“clients,” as they are often called in these settings) directly and personally, sometimes
addressing them by their first names. It is not uncommon for there to be some kind of
physical contact between the judge and client. A number of judges are comfortable with
offering hugs, while others allow clients to visit their judicial chambers. Some judges
have elected not to wear their traditional black robes in order to be seen as more
compassionate and approachable. A North Carolina judge literally does cartwheels
when clients successfully attend 90 counseling sessions in 90 days. Thus, in a number of
ways, problem-solving court judges boldly step out of the constraints of their traditional
roles. As one American judge put it: “We are the judges who get to color outside the
lines.”
Judges in more traditional U.S. courts express frustration with the manner in
which legislative mandates have eroded their discretionary sentencing powers.
Mandatory minimum sentence guidelines make judges feel hampered and constrained.
The format of the problem-solving courts, in contrast, allows judges much greater
discretion. They can impose a variety of intermediate sanctions, ranging from
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community service, to increased attendance at 12-step meetings, to involvement in
“quality of life” groups (offered in some community courts), to compulsory
participation in anger management classes (popular in domestic violence courts), to
short periods in jail. Interestingly, these sanctions are often understood in therapeutic
terms. Jail has been referred to as “motivational jail,” “shock therapy,” and even by one
judge as “my motel,” and sanctions have been described as the “restructuring of a
defendant's lifestyle.” Thus, therapeutic nomenclature is used to justify these sanctions.
In spite of these euphemisms, many of the sanctions clearly have a coercive
quality. This does not bother most American problem-solving court judges. They cite
new research indicating that coerced treatment is just as effective as voluntary treatment
to justify the coercive nature of some of these programs, and also to stave off criticism
that the programs are soft on crime.
Pragmatism
That coerced treatment is justified, in part, on the grounds that it is just as
effective as voluntary treatment points to a final feature of the American courts that
distinguishes it from the other regions, namely a distinctively pragmatic orientation.
Greg Berman describes the problem-solving court movement in these terms: “I think it
is a deeply pragmatic movement . . . and its pragmatism is what appeals to me.” An
important manifestation of this pragmatism is the extent to which judges and other
advocates repeatedly defend problem-solving courts on the grounds of program
efficacy. According to supporters, these courts save money because treatment is cheaper
than jail, and they reduce the recidivism rates of offenders. In short, supporters argue
that these courts work. One example comes from Judith Kaye, the Chief Judge of the
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State of New York and a tireless promoter of problem-solving courts. “Problem-solving
courts,” Kaye has said, “bring together prosecution and defense, criminal justice
agencies, treatment providers and the like, all working with the judge toward a more
effective outcome than the costly revolving door.”x
In the U.S., it often seems that efficacy and the problem-solving capabilities of
these courts outweigh other considerations. This is reflected in Judge Stanley
Goldstein's summary of the purposes of the courts. He once told a group of other
American drug court judges: “As long as whatever you do is designed to get them off
drugs and put them back out on the street in a position where they can fight using
drugs, whatever you do to accomplish that is fine.”
Given this type of sentiment, I sometimes asked American judges whether the
apparently radical departure from the common law tradition bothered them at all. For
some, it does not. One New York judge, for example, said, “it was never a concern of
mine.” Why?
We weren't making any headway and we are not stupid. So why don't we try
different approaches? Our job is to make sure justice is done. Our job is also to
punish, but what's the point of punishing if it doesn't work? . . . When they
developed the common law, they didn't have these problems . . . But we do now,
so let's deal with it.
Thus, efficacy, solving problems, and making the courts work are of primary concern,
and American judges appear willing to jettison other jurisprudential considerations in
deference to these emphases. Whether or not these programs are as effective as many
advocates claim is another question. That advocates think in such clearly pragmatic
terms and justify the programs on these grounds, however, is undeniable.
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Thus far I have noted some of the qualities of the American version of problemsolving courts, revealing a legal culture accented by the defining traits of enthusiasm,
boldness, and pragmatism. I have suggested that these characteristics are unique to the
U.S. and are, as such, distinguishable from the defining qualities of related programs in
the five other regions.
Common Law Contrasts
Moderation
As noted earlier, the first distinguishing feature of courts in the non-U.S. regions
is moderation, which in certain respects is a direct contrast to the bold and enthusiastic
tendencies of the American courts. Whereas problem-solving courts are seen in the U.S.
as a revolutionary panacea, individuals in the other locations do not speak of these
programs as a universal remedy to society's pressing social difficulties. Instead,
problem-solving courts are viewed as one type of program among others that may be
worth trying.
Judge Bentley of Toronto, Canada, is clear on this point. His comments in this
regard were offered in the context of a discussion about Proposition 36, an initiative
passed in California in 2000 that mandated treatment for low-level drug offenders.
Interestingly, most drug court judges in the U.S. opposed Proposition 36; they saw it,
justifiably, as a thinly veiled push toward drug legalization. They also saw it as
undermining the coercive powers of drug court judges, because it would take away their
ability to impose sanctions. Bentley found the strong opposition to Proposition 36 in the
United States a bit perplexing.
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I was never suggesting, and I was hoping they weren’t suggesting, that this is the
answer. If you think it’s the answer, then of course what they’ve done in
California is wrong. But if you don’t think it’s the answer, it’s just an option . . . I
mean, you have a whole spectrum of options. And drug courts can’t possibly
work for all people . . . you have to have all these other options.
As reflected in Bentley's discussion, Canadians—among others—don't see these courts
as a cure-all. Rather, the programs are one attempt among others to deal with a number
of complex and difficult social problems.
Moderation is also evident, in the sense that those in the non-U.S. regions harbor
fewer illusions that the perennial problems addressed in these courts will ever be fully
solved. Australian criminologist Arie Freiberg, who has written thoughtfully about
problem-solving courts and about the influence of American legal culture on Australia
more generally, even takes issue with the American preference for the term “problemsolving.” Instead, he prefers to call them “problem-oriented” courts—which, as he puts
it, is “slightly less hubristic” than “problem-solving.”xi
Another example of the difference between American boldness and the relative
moderation of the other countries is the differing treatment goals of total abstinence in
the case of the U.S., and harm reduction or harm minimization in the case of the other
countries. To graduate from a U.S. drug court, participants typically must achieve a
condition of total abstinence, usually including abstinence from alcohol, whereas in the
other countries, the programs are satisfied with a reduction in use (and do not usually
require alcohol abstinence). Some Irish judges, for example, are clearly baffled by the
notion of including alcohol as a substance from which participants must abstain.
Moreover, other countries are much more likely to use methadone as a form of
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treatment, whereas in the U.S. methadone maintenance is much less popular (and in
many programs is strictly forbidden). Natasha Bakht and Paul Bentley note this
difference between American and Canadian courts: “Unlike most U.S. drug courts, the
Toronto DTC [Drug Treatment Court] incorporates methadone maintenance as part of
its treatment arsenal for heroin addicts. The abstinence model of most U.S. courts does
not permit the use of methadone.”xii Similarly, Katherine Rynne, the treatment
coordinator of Sydney’s first drug court, explains Australia’s harm-reduction
philosophy as being in direct contrast to U.S. practices.
What’s important when we’re talking about Australia is that there’s really some
cultural differences to the United States . . . What we have is drug treatment,
which is based on a harm-minimization philosophy. And harm-minimization
really is a public health approach; it uses a broad definition, which is aimed at
decreasing the adverse effects for health, social, and economic consequences of
drug use . . . Harm-minimization incorporates things like methadone treatment .
. . and our very successful needle and syringe exchange programs.
Deliberation
A second feature of the non-U.S. problem-solving courts is deliberation. In part,
deliberation refers to the extent to which judges allow the formation of these courts to
take place within the deliberative processes of the other branches of government. In the
non-U.S. cases, problem-solving courts are not typically initiated or advanced until there
has been legislative approval, the establishment of an investigative working group, a
long discussion among relevant parties, the launching of a pilot scheme, and/or the
reevaluation of a program based upon the results of a pilot scheme. In the U.S.,
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problem-solving courts usually start at the local level without legislative approval or
discussion. Practitioners in several countries have noted this important difference.
Amanda Coultas, a solicitor from the Sydney drug court, for example, observes that the
Sydney drug court “is completely a creature of statute; so it wasn’t a grassroots
movement as it appears to be in the United States, but something that’s been imposed
from above.” Instead of boldness, then, problem-solving courts in the other regions are
characterized by caution and deliberation—caution with respect to the extent to which
judges are willing to act outside of legally defined and legislatively approved limits to
their actions, and deliberation about whether to start the programs and/or to expand
them after they have been piloted for a specified period of time.
Concerning the latter, officials in the five non-U.S. countries appear more willing
than their American counterparts to reflect critically on the court processes they have
put in place and to adjust them or scale them back accordingly. One interesting example
comes from Victoria, Australia. Jelena Popovic is the Deputy Chief Magistrate in
Victoria and is a solid supporter of therapeutic jurisprudence and problem-solving
courts in Australian magistrates’ courts. However, she also worries that these courts
may be “trampling on people's human rights,” and she is willing to question her own
practices as a problem-solving court judge.
I am conscious that in my own practice of therapeutic jurisprudence, I have to a
large extent abandoned the “arm’s length” approach (and the protection it
offers). I query whether this is in fact a good thing.xiii
Popovic presides over several therapeutically oriented court schemes, including a courtbased program for prostitutes and a mental illness (“special circumstances”) court. As is
common in problem-solving courts, her court is less formal than a normal criminal
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court. She has expressed concerns about the informality of her court and has reflected
somewhat nostalgically about the benefits of a more formal courtroom. She notes, for
example, that a court's formality usefully emphasizes “the solemnity and seriousness of
what is occurring.” It also “assists with the predictability of the proceedings so that
persons appearing both as counsel and as defendants know what to expect and are not
taken by surprise.” Finally, she observes that dressed-down courts may, in fact, send
the wrong message to clients. In this regard, Popovic wonders whether the informality
could be “construed as patronizing” and convey the impression to those involved that
they “are being treated as second-class citizens.”xiv
Therefore, though still a supporter of therapeutic jurisprudence and problemsolving courts, Popovic is willing to look critically at the movement and to consciously
guard against possible violations of due process and other human rights. Moreover, she
warns: “We must strive to ensure that we are not trampling over the rights of court
users . . . We must ensure that our processes are beyond reproach.”xv
Restraint
This sense of caution and deliberation relates directly to—and will be further
illustrated by—a final feature of the non-U.S. courts: the notion of restraint. Recall the
ideal types of romantic vs. classical judges. One of the features of the classical judge in
Glendon's typology is restraint. She identifies three types of restraint: structural,
interpretive, and personal.xvi All three are evident in the judicial mentality and practices
among the non-U.S. judges.
Structural restraint refers to those limits placed on the judge by the other
branches of government, by the structure of government (e.g., a federalist system), and
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by the court's place in the hierarchy of the judiciary. With both drug courts and
domestic violence courts in England, the particular legal structure has prevented these
courts from achieving some of the bolder elements of the American versions. Two
courts in West Yorkshire County—Pontefract and Wakefield—initially referred to
themselves as drug courts. Beginning in the summer of 2000, the Pontefract and
Wakefield courts were rolled into the larger national Drug Treatment and Testing Order
(DTTO) scheme, which was itself directly inspired by the drug court model. Magistrates
in the DTTOs and the two West Yorkshire courts never had much power. Lay
magistrates in England simply do not have the authority and discretion of American
judges. Therefore, magistrates working in DTTOs do not have available to them the
kind of intermediate sanctions, including short terms of incarceration, that American
judges can employ. Moreover, in the U.K. the programs are probation-led rather than
judge-led. It is not surprising that in England responsibility for DTTOs was given to
probation. In England probation is much better funded and more centrally organized
than its counterpart in the U.S., and it enjoys a higher status. Because English probation
officers manage clients in the DTTOs, magistrates have less direct responsibility and
control.xvii
Structural restraints are even more apparent in the new English domestic
violence courts, which were initiated on a pilot basis in 1999. Even though some
involved with the domestic violence courts in England wish the programs were more
like those in the U.S., without legislative approval, the domestic violence courts have
been limited with respect to the types of sanctions they can impose. The Leeds Domestic
Violence Court, for example, does not even have regular review sessions—an important
feature of the DTTOs and other varieties of U.K. drug courts, where clients regularly
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return to the court to discuss with magistrates their progress in the treatment program
(and a feature of the courts that approximates American problem-solving court
processes). As the District Legal Manager of the Leeds Domestic Violence Court
explained, “there is no statutory basis for that.” Instead, the court is basically run “just
as a normal criminal court.” Without some kind of "national directive," court officials
don't feel like they can push the innovations any further.
This kind of top-down orientation is typical of British legal and political culture.
Jonathan Freedland made much of this point in his celebrated comparison between
American and British political cultures. As he put it, where “bottom-up power” is a
defining feature of American society, “in Britain power flows in the reverse direction,
from the top down.”xviii When I asked a probation officer from the Croydon DTTO why
she and her colleagues decided to implement a DTTO, her response lacked the
missionary, entrepreneurial zeal typical of American problem-solving court advocates.
Instead, she simply shrugged and explained that they had been told by the government
to do so. In her words: “We've been basically told to get on with it. Here's the
legislation. Here are the Home Office guidelines. Work with it.” When I asked a
medical doctor from the same program whether she anticipated that problem-solving
courts would spread in the U.K., she likewise deferred to the wishes of the British
government. “It will be for the government to decide. Largely we will have to move the
way the government wants . . . One of the things that is true about the British system is
that we are totally dependent on government funding . . . We are going to have to do
what the government says.”
The magistrates in both English DTTOs and domestic violence courts, then, have
limited power. They also more readily look to and wait for the executive and legislative
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branches of government to provide direction and funding for their programs. As a court
official in Leeds noted, support for any further innovations “really needs to be
parliamentary-driven.” Given these realities, it may not be altogether surprising that
magistrates are not as invested in these programs as are American judges. A very
different legal structure dictates a very different program, one that clearly places
restraints on the kind of power that a judge or magistrate can exercise.
An example of interpretive restraint can be found in the processes of the
Glasgow drug court. Interpretive restraint refers to those limits required by judicial
deference to constitutional precepts, statutory law, and legal precedent. Prior to the
actual court session in Glasgow, the drug court team holds a pre-court meeting in which
members discuss the various clients who will be appearing that day in court. In one precourt session, a client was discussed at some length. The medical doctor on the team
noted that the client had been testing positive for both cocaine and benzodiazepines. A
social worker added that his attendance had been inconsistent. Another social worker
said that he had given false urine samples. The only positive thing she said about his
progress in the program was that his heroin use was down. The sheriff (the Scottish
equivalent of a judge) said that he was inclined to impose a breach of the probation
order, but he wanted to wait until the court session when the offender's agent (defense
lawyer) would be present. At one point the sheriff deliberately stopped the pre-court
discussion because an agent was not present, and he felt the nature of the discussion
would not be fair without the presence of defense counsel. Interestingly, after the
defense agent made her case during the review session in court, the sheriff decided not
to breach the order and gave the participant one more chance.
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Faced with similar circumstances in the U.S., the judge would have been more
likely to put the person in jail for a few days. Moreover, it is unlikely that a defense
lawyer would have been present during the review session. In deference to his
understanding and interpretation of traditional due process procedures, however, the
Scottish sheriff limited his own powers. Though initially inclined to breach the man's
order, he delayed his decision until open court proceedings, and he then decided against
breaching the order after listening to the defense agent.
Finally, personal restraint, according to Glendon, refers to the limits the judge
places on herself in her efforts to be fair, impartial, objective, and dispassionate. Judge
Murrell of Australia is very aware of the kind of powers that she has, and she therefore
feels that in the context of a problem-solving court, the judge needs to be all the more
aware and cautious.
It is quite important to be a little bit restrained, because the judge does have such
enormous power—not just in terms of things like sanctions or sentences, but in
terms of emotional abuse in the person, if you'd like—in throwing their weight
around generally. And I think the whole boundaries in which the judge operates
[in this kind of court] are so blurred as compared to a traditional judicial setting
that you've got to try to be aware of those boundaries. To that extent, restraint
helps you not to transgress those boundaries.
Judge Murrell has also said that “it is important that the drug court judge guard
against inappropriate psychological interaction with participants. The judge must resist
the temptation to make a personal emotional investment in the rehabilitation outcome
for participants.”xix Contrast this with the following statement from Jeffrey Tauber, the
first president of the National Association of Drug Court Professionals (NADCP) in his
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instructions to American drug court judges: “Be less the dignified, detached judicial
officer. Show your concern . . . Don't lecture the offender, but engage him or her in
conversation . . . Make a connection.”xx
The Australian judge was very conscious of the differences between her court
and the behavior of judges in the States.
In Australia there is less scope for judicially idiosyncratic behavior. I think that
judges here are probably more reserved, and the whole atmosphere of the court
is probably more reserved and less demonstrative than you would see in the U.S.
courts . . . The Australian way is not to be as demonstrative as that. And also the
judge is not so much a Personality with a capital P, as some of the American
judges are.
An Irish judge was equally concerned about the “judicial overreaching” that he
witnessed among American judges, and he was determined that the Irish would behave
differently. “We don't have the idea of a judge going off on an ego trip here,” he
explained, then adding, "It strikes me that there's perhaps the possibility for that in the
U.S.” This view of the over-expressive, overreaching, over-the-top behavior of
American judges was common among judges and other officials working in the five
non-U.S. regions.
Judges in each of the five other countries were particularly opposed to judges
hugging clients, a practice not uncommon in U.S. problem-solving courts. One English
magistrate, for example, said: “We won't hug.” Another added, “that is where we draw
the line.” Still another: “I'm not in favor of that.” He went on to note that “these are
really criminals at the end of the day. The decency of the court must be upheld.” Said
another: “I haven't gotten that close.” A Scottish sheriff went even further, stating that
20
not only would there be no hugs in his court, but that he didn't like shaking hands with
the defendant or even allowing applause in the courts.
In many ways it’s applauding them for keeping out of trouble for a year to
eighteen months, which is in the grand scheme of things not a big deal for most
people. And I find that I’d rather not get involved in that and hugging people
and all that.
Ambivalent Anti-Americanism
What these observations reflect is a rather complicated attitude toward the
United States—what I have termed, “ambivalent anti-Americanism.” That is, even
while these countries are readily adopting American-inspired legal innovations, those
involved in the transplantation process also worry out loud about American cultural
imperialism, and they seek to eliminate or replace that which they see as the off-putting
extremes of the American version of problem-solving courts. It is in this context that
Irish and Australian judges object to the “demonstrative” and “theatrical” behavior of
some American judges. A Canadian judge explained how he had to sell problemsolving courts to skeptical Canadian officials by pitching the programs in explicitly antiAmerican terms. Why so? Because, as he put it, “we have to be very careful in Canada,
because although Canadians love Americans they also dislike Americans because of
cultural imperialism.”
Arguably, the sentiments conveyed here are emblematic of more general
attitudes toward the U.S. globally. Consider the findings of an extensive international
survey conducted by the Pew Charitable Trust, What the World Thinks in 2002. As
reported in the summary of survey findings, “opinions about the U.S. . . . are
21
complicated and contradictory. People around the world embrace things American and,
at the same time, decry U.S. influence on their societies . . . U.S. global influence is
simultaneously embraced and rejected by world publics.”xxi Jonathan Freedland rather
graphically makes the same point regarding the apparently contradictory nature of
British attitudes toward America: “We simultaneously disdain and covet American
culture, condemning it as junk food even as we reach for another helping—a kind of
binge-and-puke social bulimia.”xxii This ambivalent anti-Americanism represents a
curious and fascinating paradox, a deeper understanding of which is all the more
important in light of recent world events.
Globalizing Problem-Solving Courts
Though importers of American-inspired problem-solving courts often speak in
terms of adaptation, the question remains whether they are, in fact, adapting the
programs to suit their own needs, or whether they are importing more of American
culture than they realize or would care to admit. Jack Hiller warns that the
transplantation of law brings with it a lot of cultural baggage. As he puts it, “A country
can probably adopt and adapt any law or body of laws from another culture” but he
goes on to say that “such laws . . . carry with them so much imperceptible and
incommensurable cultural 'baggage' that the receiving country will inevitably
experience far more internal cultural change than it either realized, intended or would
have intended.”xxiii
This notion of incommensurable cultural baggage is similar to ideas put forth in
Gunther Tuebner's discussion of legal borrowing. Tuebner even calls into question the
appropriateness of the “legal transplant” metaphor, preferring instead the notion of a
22
“legal irritant”—such that the importation of a legal rule results not in some kind of
successful synthesis, but rather “works as a fundamental irritation which triggers a
whole series of new and unexpected events.”xxiv Both Hiller and Tuebner, thus,
anticipate fundamental, albeit usually unintended, change as a consequence of legal
borrowing.
The question, then, is what will happen as a result of this international
borrowing of problem-solving courts? In Berger's terms we might ask whether the
result will ultimately be characterized as rejection, synthesis, or replacement. But Hiller
and Tuebner seem to suggest the possibility of another category: the intention and
perception of synthesis (or domestication), but with profound cultural consequences—
consequences that cannot quite be characterized as replacement, but which are no less
transformative of a local legal culture. Consider several recent developments. One
example from the Dublin drug court offers some evidence in support of these warnings.
In spite of all the denunciations of American judicial expressivism, applause is now part
of the Dublin drug court. Is it possible that countries are unwittingly importing the very
things they say they dislike?
Consider also that in 2004, at their annual conference in Perth, the Western
Australia County magistrates unanimously passed a resolution endorsing and adopting
therapeutic jurisprudence. So impressed were Canadians by this that they included the
resolution in a 2004 report put out by the National Justice Institute in Canada on TJ and
problem-solving. Therapeutic jurisprudence is a very new legal theory that was
developed in a particular cultural context—the U.S. It is a loaded, culturally embedded
concept, and it may well be the kind of culturally determined legal sensibility or legal
irritant that is likely to have important legal and cultural consequences in the way that
23
Hiller and Tuebner anticipate. Is it really possible to domesticate such an allencompassing and culturally determined legal philosophy as therapeutic jurisprudence?
The ultimate consequences, unintended or otherwise, of the globalization of
problem-solving courts are, of course, beyond the scope of the present analysis. The
continuing development of this important international legal movement certainly invites
further attention and analysis. At this point, however, I would tentatively conclude that
the differences between problem-solving courts in the U.S. and in the other five
countries are pronounced, and that with respect to these six cases America represents an
interesting exception to the practices and sensibilities of courts in the other five
countries. In light of ideas put forth by Tuebner and Hiller, however, the comparativist
does well to pay close attention to the degrees to which boldness, enthusiasm, and
pragmatism replace, are rejected by, or in some fashion alter legal cultures that at least
initially appear more disposed toward moderation, deliberation, and restraint.
24
Endnotes
i
Clifford Geertz, “Local Knowledge: Fact and Law in Comparative Perspective,” in Local
Knowledge (London: Fontana Press, 1993): 184.
ii
Ibid., 215.
iii
Ibid., 173,175.
iv
Greg Berman, "The Hardest Sell? Problem-Solving Justice and the Challenges of Statewide
Implemenation," Center for Court Innovation Think Piece (June 2004): 5.
v
Bruce Winick and David B. Wexler, Judging in a Therapeutic Key: Therapeutic Jurisprudence and the
Courts (Durham, North Carolina: Carolina Academic Press, 2003): 3.
vi
Gerg Berman, Aubrey Fox, and Robert V. Wolf, editors. A Problem-Solving Revolution: Making
Change Happen in State Courts (New York: Center for Court Innovation, 2004).
vii
Peggy Fulton Hora and Deborah J. Chase, "Judicial Satisfaction when Judging in a Therapeutic Key,"
Contemporary Issues in Law 7, no. 1 (2003-2004): 8–38.
viii
Laurie O. Robinson, “Commentary on Candace McCoy Paper” American Criminal Law Review
40, 4 (Fall 2003): 1539.
ix
Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession is
Transforming American Society (New York: Farrar, Straus and Giroux, 1994): 152.
x
Judge Judith Kaye, “The State of the Judiciary 2002,” New York, 14 January 2002, p. 14.
xi
Arie Freiberg, "Problem-Oriented Courts: Innovative Solutions to Intractable Problems?"
Journal of Judicial Adminstration 11, no. 1 (August 2001): 25, fn. 5.
xii
Natasha Bakht and Paul Bentley “Problem Solving Courts as Agents of Change” (National
Justice Institute, Canada, 2004): 11.
xiii
Jelena Popovic, “Court Process and Therapeutic Jurisprudence: Have We Thrown the Baby
Out with the Bathwater?” eLaw Journal, Special Series 1 (2006): 61.
xiv
Ibid., 61–66.
25
xv
Ibid., 76.
xvi
Mary Ann Glendon, A Nation Under Lawyers, 118.
xvii
James L. Nolan, Jr. “Separated by an Un-Common Law: Drug Courts in Great Britain and
America, in James L. Nolan, Jr., Ed., Drug Courts: In Theory and in Practice (New York: Aldine de
Gruyter, 2002): 100-101.
xviii
Jonathan Freedland, Bring Home the Revolution: The Case for a British Republic (London: Fourth
Estate, 1998): 19, 22.
xix
Gay Murrell, “Breaking the Cycle: NSW Drug Court,” Reform 77 (Spring 2000): 23.
xx
Jeffrey S. Tauber, "A Judicial Primer on Drug Courts and Court-Ordered Drug Rehabilitation
Programs," A paper presented at the California Continuing Judicial Studies Program, Dana Point,
California (20 August 1993): 8.
xxi
“What the World Thinks in 2002,” The Pew Global Attitudes Project, chaired by Madeleine K.
Albright (Washington, D.C.: The Pew Research Center for the People and the Press, 2002).
xxii
Freedland, Jonathan. Bring Home the Revolution: The Case for a British Republic. London:
Fourth Estate, 1998.
xxiii
Jack A. Hiller, "Language, Law, Sports and Culture: The Transferability or Non-transferability
of Words, Lifestyles, and Attitudes Through Law," Valparaiso University Law Review 12, 3 (1978):
434.
xxiv
Teubner, "Legal Irritants, How Unifying Law Ends up in New Divergences," in Varieties of
Capitalism, eds. Peter A. Hall and David Soskice (Oxford: Oxford University Press, 2001), 418.
References
Bakht, Natasha and Paul Bentley. “Problem Solving Courts as Agents of Change.”
National Justice Institute, Canada, 2004.
Berger, Peter. “Four Face of Global Culture.” The National Interest (Fall 1997): 23–29.
Berger, Peter and Samuel P. Huntington. Many Globalizations: Cultural Diversity in the
Contemporary World. Oxford: Oxford University Press, 2002.
Berman, Greg. "The Hardest Sell? Problem-Solving Justice and the Challenges of
Statewide Implemenation." Center for Court Innovation Think Piece (June 2004).
Berman, Greg, Aubrey Fox, and Robert V. Wolf, Editors. A Problem-Solving Revolution:
Making Change Happen in State Courts. New York: Center for Court Innovation,
2004.
Freedland, Jonathan. Bring Home the Revolution: The Case for a British Republic. London:
Fourth Estate, 1998.
Frieberg, Arie. "Problem-Oriented Courts: Innovative Solutions to Intractable
Problems?" Journal of Judicial Adminstration 11, no. 1 (August 2001): 8–27.
Geertz, Clifford. “Local Knowledge: Fact and Law in Comparative Perspective.” Local
Knowledge (London: Fontana Press, 1993).
27
Glendon, Mary Ann. A Nation Under Lawyers: How the Crisis in the Legal Profession is
Transforming American Society. New York: Farrar, Straus and Giroux, 1994.
Hiller, Jack A. "Language, Law, Sports and Culture: The Transferability or NonTransferability of Words, Lifestyles, and Attitudes Through Law." Valparaiso
University Law Review 12, no. 3 (1978): 432–465.
Hora, Peggy Fulton and Deborah J. Chase. "Judicial Satisfaction when Judging in a
Therapeutic Key." Contemporary Issues in Law 7, no. 1 (2003-2004): 8–38.
Murrell, Gay. “Breaking the Cycle: NSW Drug Court,” Reform 77 (Spring 2000): 20–24,
90.
Nolan, James L., Jr. The Therapeutic State: Justifying Government at Century’s End. New
York: New York University Press, 1998.
Nolan, James L., Jr. Reinventing Justice: The American Drug Court Movement. Princeton:
Princeton University Press, 2001.
Nolan, James L., Jr., editor. Drug Courts: In Theory and in Practice. New York: Aldine de
Gruyter, 2002.
Ritzer, George. The McDonaldization of Society: Revised New Century Edition. Thousand
Oaks: Pine Forge Press, 2004.
Robertson, Roland. Globalization: Social Theory and Global Culture. London: Sage , 1992.
28
Robertson, Roland. "Glocalization: Time-Space and Homogeneity-Heterogeneity." In
Global Modernities. Edited by M. Featherstone, S. Lash, and R. Robertson, 25–44
London: Sage (1995).
Robinson, Laurie O. “Commentary on Candace McCoy Paper.” American Criminal Law
Review 40, 4 (Fall 2003): 1535–1539.
Teubner, Gunther. "Legal Irritants: How Unifying Law Ends up in New Divergences."
In Varieties of Capitalism. Edited by Peter A. Hall and David Soskice. Oxford:
Oxford University Press, 2001: 417–441.