Published: “Therapeutic Jurisprudence: Foundations, Expansion, and Assessment”

Dear readers, my magnum opus survey and assessment of the field of therapeutic jurisprudence (TJ) has now been published. You may freely access a pdf of “Therapeutic Jurisprudence: Foundations, Expansion, and Assessment” (University of Miami Law Review) by clicking here. 

Here’s my abstract, which introduces the article:

Founded in 1987 by law professors David Wexler and the late Bruce Winick, therapeutic jurisprudence (or “TJ”) is a multidisciplinary school of legal theory and practice that examines the therapeutic and anti-therapeutic properties of law, policy, and legal institutions. In legal events and transactions, TJ inherently favors outcomes that advance human dignity and psychological well-being. Starting with original groundings in mental health and mental disability law, criminal law, and problem-solving courts, and with a geographic focus on the United States, TJ now embraces many aspects of law and policy and presents a strong international orientation.

This article provides a meta-level examination of the field, including its origins, core doctrinal and theoretical foundations, critical reviews, expansion into many areas of law, procedure, and legal institutions, and connections with other modalities of legal theory and practice. Furthermore, it assesses TJ’s standing and considers opportunities and challenges for the field’s expansion and growth. The intended purpose of this article is two-fold: First, to spur discussions within the TJ community about the past, present, and future of the field; and second, to provide a substantive, yet accessible introduction to TJ for those who wish to learn more about it.

Some folks might understandably ask, what do you mean by therapeutic vs. anti-therapeutic legal outcomes? Here’s a quick example: It is therapeutic that we have created laws against sexual harassment. After all, creating liability-avoiding incentives for employers to prevent and respond to sexual harassment and providing workers with legal rights against sexual harassment are good things. However, the ways in which we sometimes apply these laws, which may include wholly inadequate employer responses to reports of sexual harassment, as well as anxiety-producing, perhaps even trauma-generating, litigation, are anti-therapeutic.

TJ’s lens on legal matters helps to yield this kind of analysis, thus shining a necessary light on the ways in which our laws, dispute resolution procedures, and legal institutions advance or undermine psychological health and well-being, individually and collectively.

I hope the piece will be especially useful to:

• Individuals who would like a fulsome introduction to TJ. This includes folks with and without formal legal training.
• Scholars who seek a thorough overview of the field and abundant source listings (contained in the footnotes) for their own research.
• Members of the TJ community, for the purpose of gauging and discussing the field’s past, present, and future.

This article is a long one, clocking out at 90 pages and containing nearly 500 footnotes. Thanks to a very detailed table of contents, however, readers can easily dip into specific sections. It works as a cover-to-cover read and as a piece that can be sifted for individual sub-topics. It works well as a “textbook” on TJ for relevant courses in law and other disciplines.

I discovered TJ some 13 years ago, when my scholarship and advocacy on the legal implications of workplace bullying continually led me to questions about psychology and well-being. Over the years, I’ve become more deeply involved in this wonderful community of scholars, practitioners, judges, and students. I’ve long believed that the TJ community needs a comprehensive survey article of this type, and I hope this will be an educative and scholarly contribution.

School anti-bullying researcher questions whether “workplace bullying” is a real phenomenon

On occasion, I am left deeply dismayed by a commentary concerning workplace bullying. Such was my reaction to Elizabeth Englander’s “Is Workplace Bullying a Genuine Phenomenon?,” just published in The Atlantic (link here).

Dr. Englander is a psychologist who directs a center at Bridgewater State University that primarily addresses school bullying. Building on news stories of well-publicized toxic work situations, she questions the reality of workplace bullying. Here’s a snippet:

Whenever powerful people wage a campaign of misery against someone with less agency, it can be harmful. Victims of bullying are typically less productive, less happy, and less likely to be positive contributors to society. They’re more likely to use dangerous drugs, to be violent, and to break laws.

Bullying doesn’t refer to just any type of social cruelty, however; it’s specifically when an individual or group repeatedly and deliberately attacks a less powerful person.

…Just calling something bullying doesn’t make it so, of course, and identifying bullying among adults can be difficult. In schools, we can clearly distinguish between a child who makes a random mean comment about a haircut and a child who goes after a target every single day on a playground or on social media. Only the latter is waging a repetitive campaign of cruelty. In a workplace, a nasty comment that might seem like a single incident could actually be a repetitive behavior—or not. For example, if your boss berates and belittles you one day in a meeting, you may wonder if that’s how she talks about you to management. Could that explain why you weren’t promoted? Or maybe your boss was just having a bad day and she took her anger out on you—not great, but not bullying.

Englander is right on in saying that “identifying bullying among adults can be difficult” and that bullying, in its essence, is an abuse of power. She’s also right that workplace bullying is not about a “boss just having a bad day.” I personally agree with a definition of bullying that includes intent on the part of the aggressor. In fact, I have written the anti-bullying Healthy Workplace Bill to include intent as a required element towards proving a legally actionable claim. (Not all anti-bullying advocates agree with me, but after considerable pondering I have held firm on this point.)

Despite this apparent common ground, Englander concludes:

Ultimately, the word bullying may be simply a distraction. Whether a workplace problem fits the definition of bullying is secondary. What’s more important is promoting professional behavior and workplaces that improve the lot of employees.

It appears that Englander is practicing the unfortunate academic game of defining a term restrictively (here, bullying), then questioning that which doesn’t fit easily within it, and finally (and somewhat paradoxically) claiming at the end that definitional distinctions are secondary distractions. Ultimately, by reserving the mantle of “bullying” mainly for applications to children, her commentary overlooks decades of research, public education, clinical, and advocacy work on an international scale about workplace bullying and mobbing. Perhaps had she done a deeper dive into that abundant body of work, rather than build her piece around individual instances of bad bossism, the published result would’ve been different.

Why not seek common ground instead?

Ms. Englander’s primary domain is bullying among children. Mine is workplace bullying. I respect that, at times, the dynamics of school bullying and workplace bullying are different. Indeed, I and many others have likened workplace bullying more to domestic abuse than to school bullying in terms of core relational dynamics. But I have increasingly regarded these differences as being less important than the similarities.

Thus, I am mystified as to what triggered Englander’s commentary. The heart of the movement to address workplace bullying and mobbing has always been in steadfast support of efforts to respond to other forms of interpersonal abuse, such as school bullying, cyberbullying, domestic abuse, and sexual harassment. We’ve also learned that it’s unproductive to get overly hung up on labels and vocabulary, especially when it comes to the risks of creating turf battles.

In sum, it’s unfortunate that Englander (and The Atlantic) would invest in an article that misses the mark so unnecessarily. The more constructive common ground is to comprehend that bullying behaviors exist at every life stage and to share many related insights for our mutual benefit.

Published: “Teaching Therapeutic Jurisprudence”

I’m happy to report that my latest law review article, “Teaching Therapeutic Jurisprudence,” has been published in the University of Baltimore Law Review. To access a freely downloadable pdf, please click here.

Therapeutic jurisprudence, or “TJ,” is a multidisciplinary field of theory and practice that examines the therapeutic and anti-therapeutic properties of law and policy, legal processes, and legal institutions. TJ has become a central framing theory for my work in drafting and advocating for legal protections against workplace bullying. From 2017-19, I served as the founding board chairperson of the International Society for Therapeutic Jurisprudence, a global, non-profit organization dedicated to public education about TJ.

The purpose of this article is to foster the incorporation of TJ into law school curricula, so that future lawyers may benefit from its insights and lessons. Here’s the abstract: 

If the field of therapeutic jurisprudence (TJ) is to enjoy greater influence in the realms of legal practice and the making of law and policy, then it must expand its presence in the standard law school curriculum. This Article aspires to provide guidance and suggest resources towards that end. Part I considers the ways in which TJ can be introduced into law school curricula, including dedicated courses and seminars, single-session overviews, and clinical and skills courses. This will include a detailed discussion of my initial design and teaching of a Law and Psychology Lab, built around TJ principles and applications, which I launched in the spring of 2020 at Suffolk University Law School in Boston. Part II is a bibliographical essay discussing resources that can be used as assigned and recommended reading in courses incorporating some TJ component.