This article examines the hindsight bias in the context of mental health malpractice litigation, analyzes various legal mechanisms for dealing with the bias, and discusses whether the law should strive for debiasing in all mental health malpractice cases.

This article uses the Supreme Court's decision in Daubert as an opportunity to address a chronic concern regarding the disparity between mental health law as officially enunciated and the practical application of that law. After Daubert, admissibility of expert evidence under the federal rules requires a qualified expert, a reliable basis for the testimony, and relevance to the legal issue. Ongoing psychological research pursues empirical data that expands the scope of psychological expertise and clarifies its limits. This article addresses the requirement of relevance by examining the logical relationship between the psychologist's actuarial and clinical expertise and the legal issues addressed by the court in civil commitment proceedings. Ideally, Daubert might stimulate a process of cooperative analysis in which psychologists and lawyers clarify the proper roles of psychological experts and of the courts with which those experts interact. This article begins that project by clarifying the legal determination required in civil commitment proceedings and by explicating the relationship between the responsibilities of experts and those of courts.

Therapeutic Jurisprudence provides a conceptual framework for a research agenda designed to promote development of legal rules, procedures, and roles in a manner consistent with the therapeutic mission of the mental health system. As such, it draws attention to the tension between the jurisprudential values of autonomy and well-being that permeates mental health law specifically and the law and ethics of health care generally. This article advances an analysis of these values in the context of the patient-centered approach to health care. The article endorses a priority for the deontic aspect of autonomy over well-being but allows balancing of the consequentialist component of autonomy against well-being. Finally, it applies this framework to several traditionally difficult types of cases.

Recent judicial decisions regarding commitment under sexual predator statutes and commentary addressing the legal significance of psychopathy provide an interesting opportunity to reflect upon the exculpatory significance of psychopathy and the appropriate relationship between criminal conviction and police power civil commitment. This paper examines the legal significance of psychopathy for the purposes of criminal responsibility and of civil commitment under sexual predator statutes. By examining the significance of psychopathy for each of these legal institutions, it clarifies our understanding of the legal significance of psychopathy and of the relationship between these institutions. This process illuminates the defensible functions and boundaries of each institution and clarifies the nature of the impairment that should qualify an individual for confinement by each. This analysis interprets criminal conviction and police power commitment, including sexual predator commitment, as integrated institutions of social control intended to provide a coherent approach to psychopaths as well as to others who require state intervention under the police power.

In Panetti v. Quarterman, three professional associations advocated commutation of capital sentences for offenders who are incompetent to face execution. Some judicial opinions deny that convicted offenders have any protected interest in avoiding a legally imposed sentence, and other opinions have found that the Eighth Amendment requires treatment for prisoners with serious mental health needs. This article examines some circumstances in which health care providers in the context of criminal punishment encounter apparent conflicts among the treatment interests of the individuals, the comprehensive interests of these individuals, legally protected interests, and the public interest. This analysis pursues clarification of these interests and of potential tensions among legal and professional obligations of health care providers. This article does not provide comprehensive resolution of this tension. Rather, it is intended to promote rigorous ongoing inquiry by clarifying the relevant interests at stake and the responsibilities of various participants in the complex interaction of health care and corrections.