Therapeutic jurisprudence's future in health law: Bringing the patient back into the picture

More than 25 years ago, Professors David Wexler and Bruce Winick envisioned broad application of therapeutic jurisprudence (TJ), an interdisciplinary theory of law suggesting that legislatures, regulators, and judges consider the extent to which their decisions impact the psychological well-being of those upon whom the law acts. TJ most obviously plays a significant role in mental health and criminal law, where it originated, but Wexler and Winick long ago opined that TJ could be useful in a wide variety of other disciplines as well. Indeed, TJ has expanded exponentially in application over the years. Yet, although Wexler and Winick originally suggested that health law was an “obvious” field in which it could expand, application of TJ in that discipline has been less robust than one might have expected. This article will examine the extent to which TJ has been applied in health law other than mental health law, categorize the areas of health law in which it has been applied, and suggest future paths for expansive application in this most obvious of areas.