Published: “On anger, shock, fear, and trauma: therapeutic jurisprudence as a response to dignity denials in public policy”

The International Journal of Law and Psychiatry, has just published my article, “On anger, shock, fear, and trauma: therapeutic jurisprudence as a response to dignity denials in public policy.” Through May 18, you may click here to obtain free access to the article.

This piece is not about employment law and policy, but it embraces a relevant theme, namely, how the making and content of public policy can either advance or deny our dignity. Here’s the article abstract:

This article asserts that when policymaking processes, outcomes, and implementations stoke fear, anxiety, and trauma, they often lead to denials of human dignity. It cites as prime examples the recent actions of America’s current federal government concerning immigration and health care. As a response, I urge that therapeutic jurisprudence should inform both the processes of policymaking and the design of public policy, trained on whether human dignity, psychological health, and well-being are advanced or diminished. I also discuss three methodologies that will help to guide those who want to engage legislation in a TJ-informed manner. Although achieving this fundamental shift will not be easy, we have the raw analytical and intellectual tools to move wisely in this direction.

Although it’s a scholarly journal piece, it’s relatively short (10 pp.) and accessible to non-legal folks.

The article appears as part of a special issue honoring Prof. David Wexler (U. Puerto Rico/U. Arizona), a co-founder of the therapeutic jurisprudence movement. It was co-edited by Profs. Amy Campbell (U. Memphis) and Kathy Cerminara (Nova Southeastern U.). The journal is hosted by the International Academy of Law and Mental Health.

Shawn Ginwright: From “trauma informed care” to “healing centered engagement”

Today I’m happy to share the work of Dr. Shawn Ginwright, a San Francisco State University professor who devotes himself to challenges facing young people in urban areas. Dr. Ginwright asserts that rather than focusing on “trauma informed care,” we should embrace a framework of “healing centered engagement.” Although he is a practitioner of trauma informed care, he sees some limitations in the concept. Here’s a snippet of what he wrote last year in Medium (link here):

More recently, practitioners and policy stakeholders have recognized the impact of trauma on learning, and healthy development. In efforts to support young people who experience trauma, the term “trauma informed care” has gained traction among schools, juvenile justice departments, mental health programs and youth development agencies around the country.

…While trauma informed care offers an important lens to support young people who have been harmed and emotionally injured, it also has its limitations. I first became aware of the limitations of the term “trauma informed care” during a healing circle I was leading with a group of African American young men. All of them had experienced some form of trauma ranging from sexual abuse, violence, homelessness, abandonment or all of the above. During one of our sessions, I explained the impact of stress and trauma on brain development and how trauma can influence emotional health. As I was explaining, one of the young men in the group named Marcus abruptly stopped me and said, “I am more than what happened to me, I’m not just my trauma”. I was puzzled at first, but it didn’t take me long to really contemplate what he was saying.

The term “trauma informed care” didn’t encompass the totality of his experience and focused only on his harm, injury and trauma.

Toward healing centered engagement

Ginwright goes on to suggest that we should look at healing from trauma in a more holistic way:

What is needed is an approach that allows practitioners to approach trauma with a fresh lens which promotes a holistic view of healing from traumatic experiences and environments. One approach is called healing centered, as opposed to trauma informed. A healing centered approach is holistic involving culture, spirituality, civic action and collective healing. A healing centered approach views trauma not simply as an individual isolated experience, but rather highlights the ways in which trauma and healing are experienced collectively. The term healing centered engagement expands how we think about responses to trauma and offers more holistic approach to fostering well-being.

A healing centered approach to addressing trauma requires a different question that moves beyond “what happened to you” to “what’s right with you” and views those exposed to trauma as agents in the creation of their own well-being rather than victims of traumatic events.

Although I have written about the importance of understanding psychological trauma, I agree with Ginwright’s preferred framework. Being trauma informed is very important, but it’s just part of the process of healing centered engagement. Furthermore, we might also consider that healing centered engagement naturally incorporates the idea of post-traumatic growth, another important concept that I wrote about last year (go here for link).

Ginwright’s focus also reinforces what I’ve tried to communicate many times here, namely, that social problems must be scrutinized at both the individual and systematic levels. This includes examining the political, social, and economic cultures that create and enable abusive mistreatment of others. 

Applied to workplace bullying and mobbing

This is very relevant to workplace bullying, mobbing, and other forms of worker mistreatment. Severe work abuse can wreak havoc on an individual’s mental and physical health. It can significantly undermine one’s ability to pursue a livelihood and a career. These behaviors rarely occur in a vacuum. Rather, they are typically enabled by the organization and its leadership.

In other words, the actors in work abuse situations and their impacts are often multifaceted — or, to add a twist, negatively holistic. In response, then, we should look at preventing and responding to bullying and mobbing in a more positive holistic, systemic way.

Finally, healing centered engagement helps to focus us away from trauma or victimization as a defining status, without ignoring the underlying mistreatment, its effects, and frequent lack of accountability that come with it. As the young man in Dr. Ginwright’s youth group told him, “I am more than what happened to me, I’m not just my trauma.” 

Applied to law and public policy

Healing centered engagement carries a lot of significance for practitioners of therapeutic jurisprudence (TJ), a school of legal thought that supports psychologically healthy outcomes in legal proceedings and the creation of laws that advance individual and societal well being.

Among other things, how can lawyers, judges, and other practitioners support laws and policies that support healing centered engagement? How can our systems of justice and dispute resolution do the same? Healing from trauma is relevant to many, many aspects of the design and application of our laws and legal systems.

***

As I’ve written here before, I sometimes use this blog to share “pondering in progress.” I’m doing that here. I’ve got more thinking to do about this concept of healing centered engagement, but it resonates with me on many levels. I hope it prompts some useful thinking for you, too.

***

Additional notes

  • Dr. Ginwright later revised his Medium piece and added references for an Occasional Paper published by an Australian social services agency, Kinship Carers Victoria. You may freely access it here. For a YouTube video including Ginwright’s 2018 conference presentation, go here.
  • I serve on the boards of two organizations relevant to the commentary above, and I invite readers to learn more about them. First is Human Dignity and Humiliation Studies, a global network of scholars, writers, practitioners, artists, activists, and students who are committed to advancing human dignity and reducing the experience of humiliation. Go here for the HumanDHS website. Second is the International Society for Therapeutic Jurisprudence, a new non-profit organization dedicated to the mainstreaming of therapeutic jurisprudence perspectives in our laws and legal systems. Go here for the ISTJ website

***

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Workplace bullying, worker dignity, and therapeutic jurisprudence: Finding my center of gravity, Part I

The process of retrospection may sometimes yield soggy nostalgia, confusion, or even regret. On other occasions, it delivers a surprising dose of clarity. I experienced a big chunk of the latter, when — and apologies for the cliché — a random trip down memory lane reminded me of the origins of, and connectivity between, so much of the work I’m doing now. I forewarn readers that I’m going to use this post to ponder about this and meander a bit.

Recently I retrieved from my bookshelves Mark Satin‘s Radical Middle: The Politics We Need Now (2004). Mark is a political author, lawyer, and one-time 60s anti-war and left activist whose writings evolved to a place that he called the “radical middle.” I bore witness to a piece of his political transition. From 1984 to 1992, Mark wrote and published an independent, left leaning but “post-liberal” political newsletter titled New Options. I was among his subscribers, and I found it to be a thought-provoking publication.

However, at 46, and after many years of writing and editing New Options, Mark sought to have a greater impact within the mainstream. He figured that law school would give him some insights on how the worlds of law, policy, and commerce operated, so he set his sights on obtaining a legal education and earning a law degree.

This is how paths can cross in person: In the fall of 1992, I was starting my second year as an instructor in the first-year legal skills program at New York University School of Law, my legal alma mater. I looked at my class list and saw the name “Mark Satin” on it, and I soon confirmed he was the very person whose newsletter I had read. This connection led to many conversations about legal education, politics, and the future of the country.

During his second year at NYU, Mark asked me to supervise an independent study project that he had been contemplating for some time. Always attentive to emerging social and political trends, he wanted to write about the growing confluence between law and psychology. He envisioned putting together a broad-ranging paper that surveyed and analyzed law and psychology linkages in many different aspects of legal thought and practice. I agreed to oversee the paper despite that I only a mild curiosity in the topic that Mark had described. I saw law & policy through a primarily political lens, and while I didn’t disregard the role of psychology informing legal doctrine and practice, it wasn’t a front and center perspective for me.

With characteristic determination, Mark dove into his research project, and eventually producing a law review article, “Law and Psychology: A Movement Whose Time Has Come,” published by the Annual Survey of American Law, one of NYU’s student-edited law reviews. (Unfortunately, there is no open online access to this article.)

After graduating from law school, Mark did go mainstream, at least for a short while! For several years he became a commercial lawyer, working for a New York law firm. But the writing/newsletter/policy wonk side of him couldn’t be suppressed for long. Furthermore, Mark’s political worldview was evolving in a direction that he would call the “radical middle.” And so in the late 90s he launched what would become the Radical Middle Newsletter, which he would write and publish from 1999 to 2009. (You may access the newsletter archives here.) He would also author his book, Radical Middle, which was published in 2004.

Although my own political outlook was somewhat to the left of Mark’s, I agreed to join his first board of directors and then later would slide over to his advisory board. During this time, Mark started writing about stuff that I was discovering independently. You see, my work on workplace bullying and dignity at work was drawing me to the law and psychology perspective that he had championed in his law review article. Among other things, Mark wrote feature articles for Radical Middle discussing therapeutic jurisprudence (here), “rankism” and human dignity (here), and workplace bullying (here).

In one of his last Radical Middle pieces (here), he highlighted my 2009 law review article, “Human Dignity and American Employment Law:

At the risk of sounding immodest, I think my article (pictured at the top) still holds up well. It remains the best articulation of my beliefs of what our system of regulating the workplace and resolving employment disputes should look like. (You may download it without charge, here.)

My political center of gravity is still more left than center, and in many ways I’m an old-fashioned liberal. (Indeed, it makes sense that for many years, I’ve been on the board of Americans for Democratic Action, an old-fashioned liberal advocacy organization.)

But these deep themes of psychology, human dignity, and societal & individual well-being now frame my outlook on the making, implementation, and practice of law and public policy. Furthermore, the overlaps between Mark Satin’s “radical middle” and my back-in-the-day brand of liberalism appear to be many, at least if my other affiliations with the workplace anti-bullying movement, therapeutic jurisprudence movement, and human dignity movement are any indication. Perhaps this also means that while political labels matter at times, maybe the distinctions between them aren’t as sharp as we sometimes imagine them to be, at least at their respective margins. 

To be continued…..

The Kavanaugh confirmation as a mirror onto America

(image courtesy of getdrawings.com)

Here in America, we have just endured an extraordinarily ugly and partisan confirmation process for a U.S. Supreme Court nominee. Events leading to the confirmation of Brett Kavanaugh to be the next Justice of the U.S. Supreme Court now comprise a terrible episode in our political and legal history. This will reverberate on many levels for a long time.

Kavanaugh, a U.S. Court of Appeals judge, was nominated by Donald Trump to fill a vacant seat on the Supreme Court. Late in the confirmation process, several women accused Kavanaugh of sexual misconduct when he was in high school and in college.

Psychology professor Christine Blasey Ford was the first and most prominent accuser, alleging that during high school, a drunken Kavanaugh and his friend attempted to rape her. She and Kavanaugh both testified about these allegations before the Senate Judiciary Committee on September 27. The debates over these allegations and Kavanaugh’s suitability for confirmation have dominated the national news coverage and everyday conversations across the country.

I make no claim to objectivity on this topic. I was among some 2,400 American law professors who signed a public letter expressing concerns about Judge Kavanaugh’s judicial temperament and urging the U.S. Senate to reject the appointment. However, my purpose here is to pull back on the camera a bit and examine the destructive impact of this episode on America’s civic, political, and legal culture. Here are some of the key dimensions:

A deeply divided country

If America needed yet another painful reminder of its deep political and ideological divisions, this was it. It’s too early to predict exactly how this will affect future national elections, but it will play a major role in shaping political discussions.

Trauma and abuse

For trauma survivors, especially women who have experienced sexual assault, these events may have been alternately re-traumatizing, empowering, sorrowful, clarifying, angering, depressing, and validating. It has been a very difficult and trying two week period for many. It remains to be seen whether this will galvanize a movement to call greater attention to sexual assault, psychological trauma, and the rights of abuse victims.

Toxic masculinity

The mocking and trashing of women who courageously gave credible accounts of sexual assault was horrific and outrageous, especially when it came from men in positions of power. It’s time to mainstream the term toxic masculinity and to understand that this behavioral dynamic is very much a part of American culture.

Getting to the truth

Thanks to boundaries set by the White House, the FBI’s investigation into allegations against Kavanaugh was grossly inadequate and gave all appearances of providing cover, rather than searching for the truth. Neither the accusers’ allegations nor Kavanaugh denials were subjected to a thorough vetting, and numerous possible witnesses were ignored.

High school

Believe me, a lot of people people experienced vivid flashbacks to high school during these events. For some this was accompanied by uncomfortable memories and contemplations about behavioral excesses during adolescence and early adulthood.

Class privilege

Matters of class privilege played out prominently. Media coverage of student life at elite private high schools and Ivy League career networks gave detailed, snapshot examples about how such advantages manifest themselves early in life and continue through adulthood.

Public job interview

My own impressions of Kavanaugh notwithstanding, I would not wish upon anyone this equivalent of a job interview in the form of a public ordeal, with millions of people watching the proceedings and discussing very personal and normally private aspects of an applicant’s life. It made for a tawdry spectacle.

Institutional credibility

The reputations of both Congress and the Supreme Court took well-deserved hits. And thanks to Kavanaugh’s highly partisan language and angry, threatening tones towards his opponents in his September 27 testimony, his credibility as an impartial judge is forever suspect. With that suffers the credibility of the Supreme Court as a judicial body.

Bullying behaviors

Accusations of bullying behaviors flew back and forth between both sides. While few incidents rose to the kind of virulent bullying discussed often on this blog, the proceedings were rife with incivility and name calling.

Conservative bloc

The Kavanaugh confirmation gives the conservative bloc of the Supreme Court the votes it needs to advance a sharply right-leaning legal agenda for years to come. We are very likely to see reversals in civil rights and workers’ rights as a result.

***

The events surrounding the Kavanaugh confirmation process will be studied and discussed for many years. Kavanaugh’s votes and judicial opinions will be scrutinized closely against the backdrop of how he was confirmed. I don’t have much optimism for the civic aftermath of what we’ve just experienced, but I hope that I’m wrong.

The Great Recession: Are we looking at a repeat?

Ten years ago…

A decade ago, the world economy crashed. Fellow news junkies have no doubt noticed the surfeit of news articles reflecting back on the brutal unfolding of the Great Recession. For me, the Great Recession is such a defining chapter in my generation’s story that these pieces prompt vivid “where were you when…” remembrances of September 2008.

Watching from afar

I was in Hawaii at the time, and it was surreal.

I had been awarded a research sabbatical for that fall term. But before digging into my sabbatical work, I visited Maui for two weeks to help out and support a dear cousin who had lost her husband to cancer.

As we sorted through the many details that follow the passing of a loved one, regular TV programming was constantly interrupted by news coverage of the rapid economic collapse. It quickly became clear that this was no ordinary downturn, and that the world’s economic and financial structures were at risk of breaking apart.

To watch this unfold from one of the most beautiful places in the world, with a six-hour time difference between the East Coast and Hawaii, made for a disconnected and strange experience. You step outside into sunlight and palm trees and locals going about their business. You then watch the television news, with a lot of normally cool characters looking visibly shaken and fearful.

Today’s reality

So here we are, a decade later, looking back at the Great Recession and all the human and financial carnage it exacted. It would be nice to assume that we’ve learned from the massive debt bubbles and casino-style investing that helped to bring down the economy in 2008, and that somehow we’ve managed to reclaim those losses.

But there are two stark realities facing us today: First, although a booming stock market, record profits, and executive raises have fueled the net worths of the wealthy and upper middle class, a lot of middle-class, working-class, and poor people have never recovered from the last recession. As Alana Semuels wrote in “The Never-Ending Foreclosure,” a December 2017 piece in The Atlantic:

In the big picture, the U.S. economy has recovered from the Great Recession, which officially began a decade ago, in December of 2007. The current unemployment rate of 4.4 percent is lower than it was before the recession started, and there are more jobs in the economy than there were then (though the population is also bigger). But for some, the recession and its consequences are neverending, felt most strongly by families . . . who lost jobs and homes. Understanding what these families have experienced, and why recovery has been so evasive, is key to assessing the economic risks the nation faces. Despite ever-sunnier economic conditions overall, the Great Recession is still rattling American families. When the next economic crisis hits, the losses could be even more profound.

Secondly, a lot of knowledgeable people are saying that we are once again on the brink of a significant economic downturn. I won’t even attempt to link to the array of opinion pieces and analyses making this point. Just search “next recession,” and you’ll see what I mean. These assessments are coming from liberal, moderate, and conservative economists alike. Their biggest question is how bad will it be. It’s safe to say, however, that especially for the millions of people who never recovered from the last recession, the added punch will be extremely hard.

I know I’m sounding like a doomsayer, but I think we’re in for another rough go of it. My biggest question is whether we’ll come out of the next recession with a genuine civic and political commitment toward building an economy that works for everyone, not just for the wealthy and well-to-do.

…on-the-ground realities today

Abuse survivors can draw inspiration from John McCain’s life story

Here in America, the death of U.S. Senator John McCain is dominating the news, and rightly so. He has been a major political figure for several decades, marked by a penchant for outspokenness and independence that formed his trademark public image. Most of the McCain remembrances are looking at the broad arcs of his life and career, but upon reading Robert D. McFadden’s feature-length obituary for the New York Times, another thing hit me: He was a trauma survivor.

It’s a well-known part of McCain’s story that he survived more than five years as a POW during the Vietnam War. McCain was a fighter pilot, and during a mission over Hanoi in July 1967, his plane took a missile hit. He managed to eject, but he suffered two broken arms and a shattered knee in the process. He was quickly captured by the North Vietnamese, who immediately set upon him. McFadden writes:

Mr. McCain was stripped to his skivvies, kicked and spat upon, then bayoneted in the left ankle and groin. A North Vietnamese soldier struck him with his rifle butt, breaking a shoulder. A woman tried to give him a cup of tea as a photographer snapped pictures. Carried to a truck, Mr. McCain was driven to Hoa Lo, the prison compound its American inmates had labeled the Hanoi Hilton.

There he was denied medical care. His knee swelled to the size and color of a football. He lapsed in and out of consciousness for days. When he awoke in a cell infested with roaches and rats, he was interrogated and beaten. The beatings continued for days. He gave his name, rank and serial number and defied his tormentors with curses.

After two weeks, a doctor, without anesthesia, tried to set his right arm, broken in three places, but gave up in frustration and encased it in a plaster cast. He was moved to another site and tended by two American prisoners of war, who brought him back from near death.

This was only the beginning of years of continuous torture and beatings, including two years of solitary confinement.

McCain had chances for early release, thanks to his father’s status as a high-ranking U.S. Navy admiral. He refused:

When Admiral McCain became the Pacific Theater commander…, his son was offered early repatriation repeatedly. Commander McCain refused, following a military code that prisoners were to be released in the order taken. He was beaten frequently and tortured with ropes.

(Think about it: How many of us would decline repeated chances to jump the line while facing ongoing torture?)

With the Vietnam War coming to an end, McCain was finally released in March 1973. After a long convalescence, he would return to active duty in the Navy. Eventually, of course, he decided to enter politics.

Trauma survivor and critic of torture tactics

When John McCain was convalescing from his years as a POW, our knowledge of psychological trauma was in its infancy. Among other things, Post-Traumatic Stress Disorder would not enter the psychiatric nomenclature until the 1980s — informed strongly by the experiences of Vietnam veterans.

Thus, it’s fair to surmise that much of the focus of McCain’s recovery was on his physical health. But make no mistake about it, he was also a trauma survivor. Despite the horrific physical and psychological abuse that he endured as a POW, he would go on to lead a full and rich life, including long, distinguished service as a U.S. Senator and the Republican Party nomination for President in 2008.

It is worth noting that throughout his political career, McCain was an outspoken critic of the use of torture tactics to interrogate prisoners and those suspected of engaging in terrorist activities. This criticism did not sit well with many people during the post-9/11 era, but McCain persisted. He knew damn well what it felt like to be on the receiving end.

Standing up to a bully at the U.S. Naval Academy

Stories of McCain’s rebellious streak at the U.S. Naval Academy are apparently the stuff of legend. He piled up a mountain of demerits and disciplinary measures as he resisted the strictures of officer training. Tucked into that colorful history of barely escaping expulsion is a story of standing up to bullying, as recounted in an Arizona Republic profile of McCain by Dan Nowicki and Bill Muller:

It’s 1955 in Annapolis, Maryland, and Midshipman John McCain and his roommate, Frank Gamboa, were eating lunch at the mess hall at the U.S. Naval Academy. A first class man, a “firstie” in Navy parlance, began dressing down a Filipino steward.

Gamboa hardly noticed the exchange, but young John McCain was paying close attention. Since the steward was an enlisted man, he couldn’t fight back. The firstie was being a bully, a no-no at the Naval Academy.

The man outranked everyone at the table. McCain and Gamboa were barely past being plebes, the school’s lowest rank. Fearing trouble, other underclassmen ate quickly and left. The browbeating continued.

Finally, McCain could take no more.

“Hey, why don’t you pick on someone your own size?” McCain blurted.

There was a moment of silent shock at the table.

“What did you say?” replied the firstie.

“Why don’t you stop picking on him?” McCain said. “He’s doing the best he can.”

“What is your name, mister?” snapped the firstie, an open threat to put McCain on report.

“Midshipman John McCain the Third,” McCain said, looking straight at the upperclassman. “What’s yours?”

The firstie saw the look in McCain’s eyes. And fled.

Today we’d call it “bystander intervention.” Back then it was simply standing up to a person who is picking on someone else. I don’t know if McCain’s life story includes other instances of intervening in bullying situations, but this one account shows that even as he resisted the disciplinary conventions of Naval Academy training, he was guided early on by something more than simple youthful rebelliousness.

Summing up

Surviving severe, ongoing abuse. Recovering from that abuse to lead a full, meaningful life. Standing up to a bully on behalf of someone being targeted. 

Regardless of our respective political beliefs, there’s something that we all can learn from these chapters of John McCain’s story.

Forthcoming article: “On Anger, Shock, Fear, and Trauma: Therapeutic Jurisprudence as a Response to Dignity Denials in Public Policy”

Dear readers, later this year the International Journal of Law and Psychiatry, the peer-reviewed journal of the International Academy of Law and Mental Health, will publish my article, “On Anger, Shock, Fear, and Trauma: Therapeutic Jurisprudence as a Response to Dignity Denials in Public Policy.” Here’s the abstract:

This article asserts that when policymaking processes, outcomes, and implementations stoke fear, anxiety, and trauma, they often lead to denials of human dignity. It cites as prime examples the recent actions of America’s current federal government concerning immigration and health care. As a response, I urge that therapeutic jurisprudence should inform both the processes of policymaking and the design of public policy, trained on whether human dignity, psychological health, and well-being are advanced or diminished. I also discuss three methodologies that will help to guide those who want to engage legislation in a TJ-informed manner. Although achieving this fundamental shift will not be easy, we have the raw analytical and intellectual tools to move wisely in this direction.

If you’d like to read my author’s draft of the piece in a pdf, you may download it without charge from my Social Science Research Network page, here.

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