Theralaw and the Law-Business Paradigm Debate

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PL is the school of legal thought that emphasizes the importance of prophylactic activity by lawyers in counterweight to the traditional notion of legal services as something applied to acute and imminent problems. PL is a “proactive approach to lawyering” that “emphasizes the lawyer's roles as a planner and proposes the careful private ordering of affairs as a method of avoiding the high costs of litigation and ensuring desired outcomes and opportunities.” PL also “has been defined as a ‘branch of law that endeavors to minimize the risk of litigation or to secure more certainty as to legal rights and duties.”’ Advocates of PL have invoked an analogy of preventive medicine, suggesting that “preventive medicine works from the premise that keeping people healthy constitutes a better allocation of resources than treating people who become sick [and] preventive law works from the premise that preventing legal disputes is less costly than litigation.” To a large degree, PL jurisprudence is not a 1990s phenomenon; its intellectual roots were planted over the course of a career of teaching and scholarship by Louis Brown, who appears to have been the first law professor to focus on the topic and was certainly the legal academician most responsible for articulating PL as a school or subdiscipline in the study and practice of law. Although it would be a mistake to minimize the impact of Brown's portfolio of work, including the Brown and Dauer casebook and text (published in 1977 and 1978), it is more than fair to say that PL has enjoyed renewed interest during the 1990s, as evidenced by the publication of a new text based on the Brown and Dauer book, an upsurge in PL scholarship and interest, and the additional interest created by the connections drawn to date between PL and TJ. Despite the apparent increased attention to PL, there exists some resistance in the legal profession to PL on the ground that PL observations may merely be reinventing the metaphorical wheel. Lawyers state that they have always been conducting PL with their clients. Although this is undoubtedly true, it is equally true that lawyers and clients both have underused PL and consequently tended to overuse (or be forced to overuse) legal triage for acute legal problems. For example, instead of having affairs in order and ironclad documentation of a plan for distribution of an estate, individuals frequently are involved in will contests and related litigation.

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5 Psychol. Pub. Pol'y & L. 849 (1999).

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