Liberty and the Therapeutic State. Courts and Culture in Comparative Perspective

Revisiting themes first addressed in his book The Therapeutic State, James L. Nolan, Jr., in this article, considers the extent to which the international problem-solving court movement is a phenomenon that either inhibits or enhances the realization of individual liberty. Based on a comparison of problem-solving courts in six different common law countries (England, Ireland, Scotland, Australia, Canada, and the United States), Nolan finds that countries outside of the United States demonstrate greater concern with preserving due process, open and natural justice, the dignity of the criminal court, and the protections of individual rights and liberties. However, inasmuch as these courts first emerged in an American cultural context with pronounced therapeutic tendencies, there are signs that the borrowing countries may be importing more of American legal culture than they realize or wish for—a development that bears directly on issues of individual liberty as well as the very legitimacy of the court system.

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