Perlin, M L --- "They keep it all hid': the ghettoisation of mental disability law and its implications for legal education" [2010] LegEdDig 19; (2010) 18(2) Legal Education Digest 10

• ‘They keep it all hid’: the ghettoisation of mental disability law and its implications for legal education

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‘They keep it all hid’: the ghettoisation of mental disability law and its implications for legal education

M L Perlin

New York Law School Legal Studies Research Paper Series 09/10 #16, 2009, pp1-27

The Supreme Court has, since 1972, decided well over fifty cases involving persons with mental disabilities, a docket spanning virtually every aspect of constitutional law and criminal procedure. These cases have dealt with the substantive and procedural limitations on the commitment power, the conditions of confinement in psychiatric institutions, the application of the Americans with Disabilities Act to persons institutionalised because of mental illness, the substantive and procedural aspects of the criminal incompetency inquiry and the insanity defence, the relationship between mental disability and sexually violent predator laws, and all aspects of the death penalty. Thousands of cases have been decided in every state in the nation dealing with similar issues. In fact, in the Supreme Court’s first modern mental disability law case – finding that due process clause is implicated in all decisions related to both the ‘nature and duration’ of the commitment process – it expressed surprise that there were not more mental disability law cases brought to its attention.

Over a decade ago, Toni Massaro pointed out that constitutional criminal procedure has been treated as a subject ‘separate from basic constitutional law materials and courses’.

Mental disability law – make no mistake about it – has been ‘ghettoised’ in the same way that criminal procedure has been ghettoised. It is a ghettoisation that in some ways is far more troubling than the criminal procedure ghettoisation, since every law school in the nation (perhaps with one or two exceptions) offers at least two courses in basic criminal procedure (frequently called ‘Investigation’ and ‘Adjudication’), and these courses are regularly well-subscribed, in large part since they are perceived as ‘bar courses’. On the other hand, there are courses in ‘mental disability law’ offered only at about half of all American law schools, and, at many schools, those courses are offered infrequently and only by adjuncts (who often have no legal training).

I contend that the ghettoisation reflects a hard truth that has passed under the radar of most civil rights teachers and civil rights students. Mental disability law is simply not a topic taken seriously as a civil rights topic (or as a constitutional law topic or as a federal courts topic). And this failure of inclusion goes directly to the heart of the challenge of teaching mental disability law. It is hidden (nearly, totally hidden) from the traditional law school curriculum. It is not in the curriculum at many law schools. It is largely invisible to students and professors alike.

I do not think this invisibility is necessarily conscious, but I do believe it is a reflection of the invidious sanism that permeates the legal academy in the same way it permeates the rest of society. Sanism, as I define it, ‘is 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’. Seventeen years ago, in my first article-length treatment of this issue, I wrote this, and it still rings true today:

Tenure-track professors know that articles about mental disability law topics do not augur a fast path to tenure. Most law reviews are mildly interested in, but far from eager to solicit and publish, mental disability law scholarship. In short, the study and teaching of mental disability law are marginalized in the same way that mentally disabled individuals are marginalized. The news here is not that the academy is sanist (for why should professors be immune from the pernicious impact of bias and stereotypes), but that, with some major and important exceptions, very little attention is being paid to mental disability law.

When I was a law student, I took a course in ‘Psychiatry and Law’. It was not until Ralph Reisner published the first edition of his casebook in 1985 that this course was unmoored from a strictly-psychiatry focus.

Interestingly, here, the courts were ahead of the scholars. State Supreme Courts and federal trial and appellate courts contributed a ‘dizzying proliferation of cases’. And all of these cases focused on a question very different than the regulation of professionals. They focused, in Federal District Court Judge Harold Ackerman’s unforgettable phrase, ‘[on] how [plaintiffs] are treated as human beings’.

When I came to full-time law teaching in 1984, I taught a course in ‘Mental Health Law’. Until I joined the faculty, the course had been called ‘Legal Regulation of Psychiatry’. My change of the title was not an effort at political correctness, but as a reflection that the questions that students considered in that course – the civil commitment process, the rights of institutionalised persons, deinstitutionalisation and the interplay between mental disability and the criminal trial process – affected hundreds of thousands of individuals, and that the developing law was focused much more on them than on the issues involving professional regulation.

Interestingly, and most likely not coincidentally, in 1990, the Association of American Law Schools changed the name of the section that had formerly been known as ‘Law and Psychiatry’ to ‘Law and Mental Disability’, to better reflect, in the words of the then-section chair, Professor Linda Fentiman, ‘the more diverse interest of its members’. In many ways, this was the first academic acknowledgement that ‘mental disability law’ was a true academic discipline.

I have told in several law review articles (and elsewhere) the story of how the online program in mental disability law was created at New York Law School, due to the vision of our dean, Richard Matasar. Briefly, it began with one course in 2000 (offered then only as a CLE/CEU course) and has since grown to 12 courses, an MA in mental disability law studies and an Advanced Certificate in mental disability law studies. The pedagogy includes these elements: (1) 14 hours of video; (2) weekly reading assignments; (3) detailed web pages, including learning objectives and directed study questions; (4) on-going, threaded, online asynchronous discussion boards; (5) a weekly, moderated on-line chat room; and (6) two live day-long seminars, one soon after the course begins, and one at the course’s conclusion.

Our courses include: (1) Advocacy Skills in Cases Involving Persons with Mental Disabilities: The Role of Lawyers and Expert Witnesses; (2) The Americans with Disabilities Act: Law, Policy and Practice; (3) Custody Evaluations, Juvenile and Family Law and Mental Disability; (4) Forensic Reports, the Role of Experts, and Forensic Ethics; (5) International Human Rights Law and Mental Disability Law; (6)Mental Health Issues in Jails and Prisons; (7) Mental Disability and Criminal Law; (8) Mental Illness, Dangerousness, Risk Assessment and the Police Power; (9) Race, Gender, Class, and Mental Disability; (10) Sex Offenders; (11) Survey of Mental Disability Law; and (12) Therapeutic Jurisprudence.

Depending on demand, there is another array of courses that have been tentatively approved by the faculty. These include Health Care Financing Law, Health Benefits and Entitlements Law, Antitrust Problems in Health Care Law, Mental Health Courts, Complex Mental Disability Litigation, and Bioethics.

By 1987, I had agreed to accept as auditors any and all Forensic Fellows from the NYU Medical School’s post-doctoral program. The next year, I accepted Forensic Fellows from NY Medical College. Over the next few years, I also accepted – on an individualised basis – PhD students and post-doctoral students from Columbia and Fordham’s graduate schools of psychology. I found that having psychiatrists and others in our ‘bricks and mortar’ classes at NYLS inevitably enlivened and enhanced the classroom discourse, and gave rise to some of the very best teaching moments of my career.

When we offered the first section of the Survey course online in 2000, most of the students were forensic or administrative psychologists (and in that first year, the course was not offered as a credit course to NYLS students). We now have a contract with The Chicago School of Professional Psychology which sends us multiple students each term for both the Jails and Prisons course and the Sex Offenders course. Our non-NYLS students regularly include practising attorneys, forensic psychologists, forensic psychiatrists, social workers, hearing examiners, court advocates, case workers, and others whose focus is philosophy or ethics. This heterogeneity of class composition adds so much for all concerned (and, to a person, the law students have been pleased with this array of students with other professional backgrounds).

We offer our Survey course on an ongoing basis domestically at Southern University Law Center, at McGeorge Law School, and at Gonzaga University Law School, and also regularly offer the ADA course at 20 Southern. We have also offered sections of our Survey courses in Japan (in conjunction with the Tokyo Advocacy Law Office) and in Nicaragua (in conjunction with Universidad Americana Managua), and the ADA course in Japan with the same partner.

What matters most in the teaching of mental disability law is the recognition that to simply teach a series of easy-to-outline holdings as if this were just another boutique class in the law class curriculum is nothing less than academic malpractice. I believe that, unless students studying mental disability law understand the concepts of (and the poisonous residue of) sanism and pretextuality, the pitfalls of false ‘ordinary common sense’ (OCS) and heuristic reasoning, and the significance of therapeutic jurisprudence, teaching this course may well be a vacuous and meaningless exercise. It is also necessary to teach these concepts so students can grasp the enormous cognitive dissonance between the expansive due process holdings of many of the important US Supreme Court and lower court appellate decisions in this area, and the crabbed decision making undertaken in trial courts (and in relatively unknown reported cases) that is so common to this area of law.

Sanism infects both our jurisprudence and our lawyering practices. It is largely invisible and largely socially acceptable. It is based predominantly upon stereotype, myth, superstition, and de-individualisation, and is sustained and perpetuated by our use of alleged OCS and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process. But there are other concepts that must be made clear to students if the teaching of mental disability law is to have any authentic meaning.

Pretextuality refers to the ways in which courts accept (either implicitly or explicitly) testimonial dishonesty and engage similarly in dishonest (and frequently meretricious) decision making, specifically where witnesses, especially expert witnesses, show a high propensity to purposely distort their testimony in order to achieve desired ends. This pretextuality is poisonous; it infects all participants in the judicial system, breeds cynicism and disrespect for the law, demeans participants, and reinforces shoddy lawyering, blasé judging, and, at times, perjurious and/or corrupt testifying.

Underlying much pretextuality is society’s use of OCS, a ‘powerful unconscious animator of legal decision making’. ‘[W]here defendants do not conform to “popular images of craziness”, the notion of handicapping mental disability is flatly and unthinkingly rejected’.

Finally, it is essential that students understand the significance of therapeutic jurisprudence (TJ). TJ presents a new model by which we can assess the ultimate impact of case law and legislation that affects mentally disabled individuals; study the role of the law as a therapeutic agent; recognise that substantive rules, legal procedures, and lawyers’ roles may have either therapeutic or anti-therapeutic consequences; and question whether such rules, procedures, and roles can or should be reshaped so as to enhance their therapeutic potential, while not subordinating due process principles.

The law can (and must) use TJ as a mechanism ‘to expose pretextuality and strip bare the law’s sanist facade’, and thus become a powerful tool to serve as ‘a means of attacking and uprooting “the we/they distinction that has traditionally plagued and stigmatised the mentally disabled”’. It is an approach that professors – both as classroom teachers and scholars – must always keep in mind.