On being restlessly patient in advancing positive law and policy reforms

A piece in the current issue of the Economist, the venerable British news magazine, resurrects the tax policy positions of Henry George, an author and political economist who built a worldwide following during the last half of the 19th century:

ON A trip to New York in the late 1860s the journalist Henry George was puzzled. He found the rapidly growing city to be a place of unimaginable wealth. Yet it also contained deeper poverty than the less-developed West Coast. How could this be? George had an epiphany. Too much of the wealth of New York was being extracted by landowners, who did nothing to contribute to the development of the city, but could extract its riches via rents. The problem could be solved by a tax on land values.

George’s subsequent masterpiece, “Progress and Poverty”, sold more copies in America in the 1890s than any other book except the Bible. It spawned campaigns for land-value taxation around the world. It also inspired a board game, “The Landlord’s Game”, a precursor to “Monopoly”. The game was designed to show how property markets naturally tend towards monopolies in which one player can extract all the rent.

Examining the current state of tax policy, the Economist concludes that a stronger reliance on land taxation might be a good thing.

I’ve been interested in George’s land tax proposal ever since reading about it in Robert L. Heilbroner’s The Worldly Philosophers: The Lives, Times, and Ideas of the Great Economic Thinkers back in college. (Heilbroner has passed, but his book — last revised in 1999 — remains, in my opinion, the most engaging, lucid, and accessible introduction to the history of economic thought.) As the Economist piece suggests, Henry George’s ideas would fade into obscurity. They have been kept alive by a small but determined band of economists and social activists, coalescing around a group of independent Henry George Schools dedicated to providing continuing education and scholarship about Georgist economic principles.

But the purpose of this writeup isn’t to convince you, dear readers, on the merits of Henry George’s taxation theories, even though I believe they are worth considering. Rather, it’s to point out that important ideas about law reform and public policy sometimes take years to percolate, in some cases beyond our lifespans.

With that reality in mind, I have favored an attitude of restless patience in advocating for desired changes in law and public policy. In this context I think of restless as being dissatisfied with the status quo. I think of patience as being smart, persistent, and determined. I have had to give myself this advice on at least three areas of law and policy reform very dear to me:

Workplace bullying and law reform

Some 20 years ago, my first law review article on the legal and public policy implications of workplace bullying was accepted for publication, and it would be published by the Georgetown Law Journal in 2000. Among other things, it surveyed potential legal protections for targets of workplace bullying under American employment law and found them wholly wanting. I proposed the parameters of what would become a model workplace anti-bullying statute, eventually dubbed the Healthy Workplace Bill (HWB).

For some 15 years, the HWB has been the main template for law reform efforts concerning workplace bullying, but it has not yet been enacted in its full form by any of the 30 states in which it has been introduced. However, in recent years we have had some breakthroughs, with several states and municipalities enacting workplace bullying legislation and ordinances drawing heavily from the language of the HWB. Unions and government entities are also using the HWB language to collectively bargain over workplace bullying concerns and to design internal agency employment policies.

Here in Massachusetts, we continue to work hard to make our state the first one to enact comprehensive workplace anti-bullying legislation. The HWB once again stalled in the just-completed session of the MA legislature, despite dozens of legislative sponsors and a positive report out of the committee overseeing it.

Advocacy work can be frustrating and sometimes demoralizing. But if you believe deeply in something, you keep going. Maybe you change strategies or tactics, but you persevere. And come January, when the 2019-20 session of the legislature begins, we’ll be ready to go.

Like an unwanted holiday fruitcake

In 2002, the Connecticut Law Review published my article on the legal status of interns, in which I looked at the burgeoning intern economy and concluded that many unpaid internships are running afoul of minimum wage laws. I hoped that the piece would quickly stir some interest, but for many years it pretty much sat there, like an unwanted holiday fruitcake.

This changed when a writer named Ross Perlin authored the first comprehensive examination of the explosive growth of unpaid internships, Intern Nation (2011). He referenced my 2002 law review article and called it “the single best source of information for American internships and the law.” (Thank you again, Ross, for pulling my article out of depths of Westlaw and Lexis-Nexis.) One of Ross’s readers, Eric Glatt, chased down my law review article and concluded that his unpaid internship with Fox Searchlight Pictures just might’ve been in violation of minimum wage laws. Eric would become the lead plaintiff in a federal lawsuit seeking compensation for that internship.

To our disappointment, federal courts have not been friendly to these claims brought by unpaid interns, adopting a very pro-employer legal test for exempting interns from the minimum wage. However, the door has not been completely closed on such legal claims, and the considerable publicity generated by these cases has caused many employers to opt to pay their interns. The debate over unpaid internships, once a non-existent one, continues to reverberate in business and legislative settings.

Should law be therapeutic?

In recent years I’ve allied myself with a much broader effort to change our laws and public policies, an interdisciplinary field of philosophy and practice called therapeutic jurisprudence. “TJ,” as it is commonly referred to, examines the therapeutic and anti-therapeutic properties of laws, legal systems, and legal institutions. It favors outcomes in legal disputes and transactions that advance human dignity and psychological well-being.

TJ was founded in 1987 by two American law professors, David Wexler and Bruce Winick. Although it has grown into a global network of scholars, lawyers, judges, and other practitioners, it has yet to enjoy a mainstream presence in legal academe or legal practice. To help expand TJ’s influence, we have formed a new non-profit, membership organization, the International Society for Therapeutic Jurisprudence. I am serving as the ISTJ’s first board chair.

I hope that someday, sooner than later, TJ will be recognized as a primary framing theory for the design and application of the law. In the meantime, I find myself inspired by that cohort of scholars, educators, and activists who have kept the flame of Henry George’s ideas alive for so many years.

On being restlessly patient

Indeed, I’d like to think that the spirit of Henry George is pleased to see his ideas about land taxation knocking on the door of greater mainstream reception. Of course, in my case I’d rather not wait for some 130 years to see workplace bullying laws widely enacted, interns being paid for their work, and our laws and public policies embracing human dignity and psychological well-being. But at least it’s a reminder that good ideas can’t be suppressed forever.

As I find myself urging upon those who are understandably frustrated with the pace of social progress and justice, we cannot control outcomes, we can only try to influence them. This is an especially important reality for the times in which we live. Buoyed by a spirit of restless patience, our job is to dig in, plant the seeds for positive change, and take part in moving our society toward something better.

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You may freely download my law review articles on workplace bullying, intern rights, and therapeutic jurisprudence from my Social Science Research Network page. At the risk of being immodest, I have been told by many folks who are not lawyers or academics that they are very readable and accessible, which I consider to be a supreme compliment.

Psychopaths, sociopaths, and narcissists: What’s in a label?

In countless discussions about workplace bullying, mobbing, and abuse, we often speculate on whether the chief aggressors may have narcissistic, psychopathic, or sociopathic tendencies. These conversations may be informed by some clinical knowledge of the symptoms of, and differences between, these personality disorders. Other times, they’re based on bits of information picked up from the media and popular culture. In any event, given the relevance of this general topic to workplace mistreatment, I thought it might be useful to appeal to some experts in taking a closer look.

For starters, if you have 12 minutes for an informative and fascinating video, check out MedCircle‘s interview of Dr. Ramani Durvasula (Cal St U-Los Angeles), “Narcissist, Psychopath, or Sociopath: How to Spot the Differences.” Here are a few highlights:

  • A lot of people “are using these terms interchangeably,” but they shouldn’t.
  • “One rule of thumb to remember right off the bat. Every psychopath is narcissistic, but not every narcissist is psychopathic.”
  • A narcissist “lacks empathy, is grandiose, is entitled, is constantly seeking validation, is arrogant . . . it’s a disorder of self-esteem.”
  • Narcissists do feel shame and guilt when they do bad things, but psychopaths feel no shame or guilt when doing the same, they “don’t care who gets hurt.”
  • The “sociopath is a lot like the psychopath: They do bad things and they don’t care. . . . Here’s the key difference: A psychopath is born, and a sociopath is made.” However, Dr. Durvasula recognizes that the influences of genetic and environmental factors may be difficult to distinguish.
  • Unfortunately, psychopaths and sociopaths rarely seek treatment, unless it is court-ordered.
  • “Psychopaths and sociopaths and narcissists make great chameleons.” Psychopaths and sociopaths, in particular, “view the world as an instrument to fulfill their desires.”

Narcissistic personality disorder

In a piece for PsychCentral, Dr. Steve Bressert summarizes the symptoms of “narcissistic personality disorder” this way:

The symptoms of narcissistic personality disorder include: grandiose sense of importance, preoccupation with unlimited success, belief that one is special and unique, exploitative of others, lack of empathy, arrogance, and jealousy of others. These symptoms cause significant distress in a person’s life.

Dr. Bressert reports that research studies on the causes of NPD are inconclusive, leading him to suggest that biological, genetic, social, and psychological factors may all play a role. As to treatment of NPD, it “typically involves long-term psychotherapy with a therapist that has experience in treating this kind of personality disorder.”

Antisocial personality disorder

PsychCentral‘s founder, Dr. John Grohol, echoes and expands upon much of what Dr. Durvasula says about the differences between psychopaths and sociopaths, and explains how the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) combines psychopathy and sociopathy under the single clinical category of “antisocial personality disorder”:

The common features of a psychopath and sociopath lie in their shared diagnosis — antisocial personality disorder. The DSM-5 . . . defines antisocial personality as someone have 3 or more of the following traits:

  1. Regularly breaks or flouts the law
  2. Constantly lies and deceives others
  3. Is impulsive and doesn’t plan ahead
  4. Can be prone to fighting and aggressiveness
  5. Has little regard for the safety of others
  6. Irresponsible, can’t meet financial obligations
  7. Doesn’t feel remorse or guilt

Two peas in a pod?

Can antisocial personality disorder be treated? Read between the lines of this PsychCentral piece by Dr. Donald Black and you may reach the same conclusion as I did, namely, that psychopathy and sociopathy do not easily respond to psychological and psychiatric treatment. In fact, Black concludes:

Incarceration may be the best way to control the most severe and persistent cases of antisocial personality disorder. Keeping antisocial offenders behind bars during their most active criminal periods reduces their behaviors’ social impact.

The “almost psychopath”

I’ve periodically referenced Dr. Ronald Schouten’s (Harvard Medical School) work on the “almost psychopath,” i.e., individuals who fall short of a clinical diagnosis of psychopathy, but who demonstrate some of the most disturbing psychopathic behaviors. In their co-authored book, Almost a Psychopath (2012), Schouten and attorney James Silver acknowledge that although they have dealt with genuine psychopaths in their professional practices, there’s another type of individual they encounter more often, the almost psychopath, whom they describe this way:

Nevertheless, we much more frequently find ourselves dealing with people who don’t meet the current technical definition of a psychopath, but who have more than the usual amount of difficulty following rules, fulfilling obligations, or understanding how to treat others.

. . . Whether because of the nature of their behavior . . . or because they violate social or legal norms so frequently, these people live their lives somewhere between the boundaries of commonplace “not-so-bad” behavior and psychopathy.

Almost is bad enough

Relevance to workplace abuse

Well, I’m now stating the obvious: We’ve known for a long time that, on an individual level, psychopathic, sociopathic, or narcissistic traits are associated with bullying, mobbing, harassment, and other forms of workplace mistreatment. They also fuel the organizational cultures that enable such abuse and protect the abusers.

Among the bottom-line points that resonate most strongly with me are that narcissists, psychopaths, and sociopaths are (1) unlikely to seek treatment; and (2) treatment may not make much a difference anyway. A good number of these folks occupy positions of power in society and thus significantly impact working conditions for millions of people.

Institutional gaslighting of whistleblowers

If you’re interested in whistleblowing and gaslighting behaviors, then I strongly recommend a piece by Retraction Watch, “How institutions gaslight whistleblowers — and what can be done.” It features an interview with Dr. Kathy Ahern (U. New South Wales, Australia), author of a new journal article on how whistleblowers are traumatized by institutional betrayal and gaslighting.

I’m going to share some snippets of the Retraction Watch interview with Dr. Ahern here, but it’s definitely worth a full look:

Whistleblower gaslighting entails officers of an institution using their authority to deceive a whistleblower so that he stays engaged in a process designed to harm him.  Employees have an expectation of support derived from social norms regarding workplace interactions and formal policies. Whistleblower reprisals have a sting of betrayal that is largely imperceptible to outsiders because gaslighting institutions use deception to exploit the employee’s trust in his employing institutions.  

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One gaslighting strategy is to use this trust to force the whistleblower to repeatedly defend himself against bogus disciplinary charges presented as genuine complaints.  Eric Westervelt describes whistleblowers at the U.S. VA who were subjected to investigations of unspecified charges such as “creating a hostile work environment” or “abuse of authority”, although subsequent FOI requests yielded no details of the charges.  As a gaslighting strategy, the dual purpose of false charges is to both discredit and exhaust the whistleblower.

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Descriptions of whistleblower experiences and outcomes in the literature show a constellation of symptoms that are very similar to complex post-traumatic stress disorder (C-PTSD) typically found in survivors of child abuse.  It is hypothesized that the abuse by a trusted, more powerful adult leads to a general distrust of self and others. Adults with C-PTSD have trouble regulating intense negative emotions, and feel disconnected to other people. 

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The other symptom I see in targets of whistleblower gaslighting is a desperate urgency to be believed.  This looks a lot like an “obsession,” but as with the “paranoia,” it is not the result of a mental disorder.  It is more like the normal response of someone who spent 10 years in jail for crime he didn’t commit. Such a person is indefatigable in pursuit of having his name cleared, as are targets of whistleblower gaslighting who also are intent upon clearing their names and reputations. 

Folks, there’s so much here that will resonate with individuals who have experienced or witnessed institutional responses to whistleblowing. For those who want to read Dr. Ahern’s scholarly take on this, please look at her journal article, “Institutional Betrayal and Gaslighting: Why Whistle-Blowers Are So Traumatized.”

In short, this is very important work.

If you’d like to read more about gaslighting behaviors generally, Dr. Robin Stern’s The Gaslight Effect: How to Spot and Survive the Hidden Manipulation Others Use to Control Your Life, (2018 pb ed. with rev. intro) is the best general treatment of the topic.

And here are some of my previous entries on gaslighting:

Gaslighting at work (2017, rev. 2018)

Is gaslighting a gendered form of workplace bullying? (2013)

Gaslighting as a workplace bullying tactic (2012, rev. 2017)

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Hat tip to Dr. Kenneth Pope for the Retraction Watch piece.

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