This article is based on the Charles Miller Endowed Lecture given at the University of Tennessee College of Law in April 2014 and forms the core of a chapter about judicial leadership in the family court in a planned book about the court. A central element of the historical juvenile court and the ensuing family courts has been the role of the judge as a judicial leader, shouldering responsibilities, including therapeutic ones, far beyond those of the traditional legal decision-maker. These multiple roles – as investigator, collaborator, convener, advocate, mediator, and problem-solver – have given the family court judge tremendous power to intervene in the lives of families, often at the price of diminished due process, biased and flawed decision-making, and increased reliance on court-based rather than preventive solutions to family problems. Recent efforts to integrate therapeutic jurisprudence into family court reform, particularly in creating unified family courts, have reinvigorated the idea that the court is capable of intervening in a family’s life not just to resolve the legal dispute that brought the family to court but also to improve the family’s life by addressing the complex social, emotional or psychological issues underlying the dispute. These reforms are built on the belief that when unified, therapeutic courts intervene in the lives of families, the outcomes for the families will improve and, most centrally, that the court is a good place to resolve family problems. These basic tenets of the unified, therapeutic family court sound remarkably like the therapeutic justifications for the original juvenile court. This historical review of judicial leadership in the juvenile and family court systems, however, has never found these therapeutic attempts to be successful on a systemic level and strongly cautions against this trend.
Jane M. Spinak,
Judicial Leadership in Family Court: A Cautionary Tale,
Tennessee Journal of Law & Policy, Vol. 10, p. 47, 2014; Columbia Law School Public Law & Legal Theory Working Paper No. 14-451
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2498