Let’s make character a primary criterion for selecting leaders

Think about it: What if individual character was a primary criterion for selecting our leaders in business, the public sector, and the non-profits? How would that improve our organizations, our society, and our quality of work life?

On Friday and Saturday, I hosted a workshop for a group of lawyers and law professors who affiliate themselves with therapeutic jurisprudence, a legal philosophy that examines the therapeutic and anti-therapeutic properties of our laws and legal systems. TJ, as we call it, implicitly embraces legal outcomes that support psychological health and well-being. We enjoyed two great days of insightful, spirited, supportive discussions. I’ll be writing more about the overall workshop soon.

As often occurs at TJ-related gatherings, the side conversations with our colleagues plant more seeds of interest. During the wrap-up group dinner at a local Boston eatery, TJ co-founder David Wexler and I were discussing the topic of introverts vs. extroverts, prompted by David’s reading of Susan Cain’s Quiet: The Power of Introverts in a World That Can’t Stop Talking (2012). Cain suggests that society’s attraction to extroverted personality traits correlates with our downplay of individual character; the “Culture of Personality” has triumphed over the “Culture of Character.”

The observation rings true for me. All too often, being able to sell one’s self in the room has become a dominant factor in selecting our leaders. Flash, style, and charisma — the “wow” impact — may crowd out other qualities that have deeper and longer-term significance. Character is among those qualities sometimes given the short shrift.

Wouldn’t it be wonderful, however, if characteristics such as moral courage, honesty, empathy, and maturity were placed front and center in what we look for in our leaders? Think of what a better place the world would be if we did. Even we find ourselves swimming upstream on this one, when selecting leaders we should look at individual character and urge others to do the same.

Can a quirky band of law professors, lawyers, and judges transform the law and legal profession?

Guest blog post at https://mainstreamtj.wordpress.com/2015/08/31/mainstreaming-therapeutic-jurisprudence-challenges-and-opportunities-in-the-united-states/

My guest blog post examining the challenges of mainstreaming therapeutic jurisprudence in the U.S.

This Friday and Saturday, I’ll be hosting a workshop for a group of lawyers and law professors who affiliate themselves with therapeutic jurisprudence, a legal philosophy that examines the therapeutic and anti-therapeutic properties of our laws and legal systems. TJ, as we call it, implicitly embraces legal outcomes that support psychological health and well-being. We’ll be gathering at Suffolk University Law School for two great days of informal presentations and thoughtful exchanges.

Much of our discussion will be devoted to how North American TJ scholars and practitioners can mainstream a philosophical lens that, despite some genuine advances, exists somewhat on the periphery of legal thought. In fact, last month I wrote a guest post for the Therapeutic Jurisprudence in the Mainstream blog, examining some of the challenges that face TJ adherents in the U.S. as we attempt to grow our numbers, visibility, and influence. Here are a couple of snippets:

American lawyers and judges learn very early in their legal training – commonly, during the first year of law school – of the law’s discomfort with psychology, whether in interpreting tricky issues of intent or wrestling with how to incorporate insanity or incapacity into legal decision making. Furthermore, emotions are regarded as messy, getting in the way of analysis. When it comes to dealing with legal disputes, it’s easier to get the parties’ stories and apply rules to facts, hopefully without too much mucking around in the human mind and complicated feelings.


I offer the hypothesis that many American lawyers, judges, legislators, and law students have little idea of how truly miserable the standard-brand civil or criminal litigation experience can be for most parties to a legal dispute. Being a party to litigation is, at best, a major distraction from more life-affirming activities, and often proves expensive, time consuming, intimidating, fearful, and stressful, with significant stakes in the result.

We’ll have lots of good stuff to talk about! I look forward to welcoming participants David Wexler (TJ co-founder), Indira Azizi, Susan Brooks, Caroline Cooper, Heather Ellis Cucolo, Michael Jones, Shelley Kierstead, Alison Lynch, Michael Perlin, Amanda Peters, Marjorie Silver, and Carol Zeiner.


Related posts

Mainstreaming psychological well-being in the law: TJ’s challenge (2015)

Academic conferences: When small is beautiful (2014) 

Why legal scholarship?

Some readers outside of academic circles may understandably wonder about the usefulness of engaging in scholarly research and writing, especially when much of what professors produce seems abstract, theoretical, and laden with jargon and citations. I can’t speak for all academic disciplines or all scholars, but I can address the inquiry from my standpoint and experience as a law professor.

For me, engaging in legal scholarship has opened the door to the development of law reform proposals such as drafting the anti-bullying Healthy Workplace Bill and challenging the practice of unpaid internships. In both of these instances, the work started with a foundational writing in the form of a comprehensive law review article:

Here’s a snippet of what I say about that scholarly process in my forthcoming article, “Intellectual Activism and the Practice of Public Interest Law” (Southern California Review of Law and Social Justice):

For law professors, lawyers, and law students, the most likely publication venue for this foundational writing will be a scholarly law journal. The traditional law review article, even with its stodgy and sometimes excessive conventions of style and citation, requires us to document our sources and to spell out, in painstaking detail, the bases of a conclusion or recommendation. In this sense, it also serves as the primary database of sources informing our work, containing through footnotes our main bibliography, which in turn show how these materials relate to the overall analysis and argument. As a whole, it serves as the core document for subsequent efforts to bring a topic before a more public audience. If the writer has succeeded in the tasks of research and analysis, then the recommended action steps may justifiably be considered “evidence-based.”

That foundational research piece becomes the basis for advancing law reform initiatives, such as “drafting model legislation or administrative rules,” “developing litigation strategies,” “supporting impact or class-action litigation through brief writing and other tasks,” and “designing bureaucratic or structural reforms.” It may also involve public education work such as blogging and social media outreach, providing interviews to print and electronic media, and partnering with supportive organizations.

In other words, doing legal scholarship creates opportunities to influence the law and how people think about it.

I wish I could say that legal academe has embraced scholarship for the potential usefulness of its content, but like in so many other academic disciplines, questions of individual and institutional prestige and rankings tend to predominate discussions of what “counts.” In too many circles, scholarship has become mainly a commodity, signifying who stands where in the pecking order and deployed as currency to obtain appointments at more prestigious institutions.

In a 2010 law review article, “Therapeutic Jurisprudence and the Practice of Legal Scholarship” (University of Memphis Law Review), I critiqued that debilitating culture of scholarship and suggested that there are healthier ways for us to regard and use scholarly work. I framed my viewpoint in the context of therapeutic jurisprudence, a legal philosophy that implicitly favors laws and procedures that promote psychologically healthy outcomes.

In essence, I challenged a prestige-driven culture of legal scholarship that inevitably produces “a handful of ‘stars’ and a vast assemblage of ‘worker bees,'” with the twist being that a lot of people eventually lopped into the latter category have bought into that value system. The far better approach, I suggested, is to value scholarship for its content, meaning its ability to inform, enlighten, provoke, and persuade, and letting the rest take care of itself.


Annotated Bibliography

For those interested in reading more about the intersection of scholarship and social action, I have included a short annotated bibliography of some 40 relevant, mostly non-legal books in my article, “Intellectual Activism and the Practice of Public Interest Law.”

Working Notes: Engaging in intellectual activism

I’m delighted to share a draft of a forthcoming law review article on intellectual activism and news of a wonderful new board affiliation with a favorite group.

“Intellectual Activism and the Practice of Public Interest Law”

I’ve posted to my Social Science Research Network page a draft of a law review article, “Intellectual Activism and the Practice of Public Interest Law,” which will appear in the Southern California Review of Law and Social Justice, published at the University of Southern California law school. You may access a freely downloadable pdf version here.

Here is the article abstract:

How can law professors, lawyers, and law students use legal scholarship to inform and inspire law reform initiatives that advance the public interest? How can we bridge the gaps between academic analyses that sharpen our understanding of important legal and policy issues and practical proposals that bring these insights into the light of day and test their application? How can we bring an integrated blend of scholarship, social action, and evaluation into our professional practices?

I would like to explore these and related questions by invoking a simple framework that I call intellectual activism, which serves as both a philosophy and a practice for engaging in scholarship relevant to real-world problems and challenges, putting its prescriptions into action, and learning from the process and results of implementation. In the legal context, intellectual activism involves conducting and publishing original research and analysis and then applying that work to the tasks of reforming and improving the law, legal systems, and the legal profession.

This article explores the concept and practice of intellectual activism for the hopeful benefit of interested law professors, lawyers, and law students. It is a very personal piece, grounded in extensive scholarly, public education, and advocacy work that I have done in two areas: (1) researching and authoring proposed workplace anti-bullying legislation and building public awareness of the phenomenon of bullying at work; and (2) playing a visible role in an emerging legal and social movement to challenge the widespread, exploitative practice of unpaid internships. It also discusses my involvement in three unique, multidisciplinary networks and institutions that have nurtured my work in an intellectual activist mode, examines the relevant use of social media, and provides examples of how law students can function as intellectual activists.

The article also includes an annotated bibliography of books broadly related to intellectual activism. Those seeking guidance and inspiration on how to blend scholarship and social action will find some valuable stuff in this book list.

Human Dignity and Humiliation Studies

I have gratefully accepted an invitation to join the board of directors of Human Dignity and Humiliation Studies (HumanDHS), a global, transdisciplinary network of scholars, practitioners, activists, and students who are committed to advancing human dignity and reducing the experience of humiliation.

I have written frequently about HumanDHS and my participation its annual workshops, including a piece last week highlighting writings by some of its core members that dig deep into the meaning of dignity and humiliation in our society. 

Frankly, some requests to join non-profit boards feel like a burden. Others, however, naturally mesh with one’s ongoing work and activities. My joining the HumanDHS board fits squarely in the latter category.

A view from Vienna: New wine and new bottles for the practice and substance of law

It seems that every time you turn a corner in Old Vienna, you see sights like this one. (photo: DY, 2015)

Location indeed: It seems that every time you turn a corner in Old Vienna, you see sights like this one. (photo: DY, 2015)

Yup, as the real estate folks might say, sometimes it’s all about location, location, location.

As I wrote over the weekend, I’m in Vienna, Austria, for the International Congress of Law and Mental Health. Among other things, this biennial gathering allows me to reconnect with people and ideas associated with therapeutic jurisprudence (TJ), the pioneering school of legal thought that examines the therapeutic and anti-therapeutic properties of law, legal processes, and legal practice.

It struck me how absolutely cool it is to be at this particular conference in a city where matters of the mind have such deep historical roots. It is both inspiring and instructive to exchange ideas with scholars, practitioners, judges, and students who embrace no less than a transformative commitment to creating laws and legal systems that advance psychological well-being.

Professor David Wexler, a co-founder of therapeutic jurisprudence, is fond of invoking a “new wine” and “new bottles” analogy for describing TJ’s role. In a 2014 law review article about the criminal justice system, David suggests that we “think of TJ professional practices and techniques as ‘liquid’ or ‘wine,’ and . . . think of the governing legal rules and legal procedures—the pertinent legal land- scape—as ‘bottles.'”

In other words, the “wine” of the law is how lawyers and other legal stakeholders go about doing their work. This may include essential lawyering tasks such as interviewing clients, negotiating settlements, and conducting litigation. The “bottles” of the law are the substantive rules that define legal rights, responsibilities, and relationships and the procedural structures and mechanisms by which we attempt to resolve legal matters.

I like the wine and bottles analogy, and it certainly applies to my realm of employment and labor law and policy. A TJ-inspired “wine” for employment law practice involves acting preventively concerning employment disputes, trying to mend work relationships rather than to further fracture them, and engaging in smart, sensitive client counseling.

A TJ-inspired “bottle” for employment law includes drafting and advocating for the anti-bullying Healthy Workplace Bill, the very topic that attracted me to therapeutic jurisprudence in the first place. Properly constructed workplace bullying legislation creates incentives for employers to act preventively and responsively towards bullying behaviors and provides targets with a legal claim for damages.

I realize that some readers may pass over articles in which I toss around this unwieldy sounding term. “Therapeutic jurisprudence” is a mouthful, yes? But let’s think about it: How much better would our laws and legal systems be if they were designed mainly to encourage psychologically healthy outcomes? If you understand the significance of this question, then you now comprehend the essence of therapeutic jurisprudence and why it’s so important.

Learning about law and mental health in Vienna

St. Stephen's Cathedral, Vienna, a top attraction (photo: DY, 2015)

St. Stephen’s Cathedral, Vienna, a top attraction for visitors (photo: DY, 2015)

I’m in Vienna, Austria, for the International Congress of Law and Mental Health. This is a biennial, large-scale event, with roughly 1,000 registrants and multiple panels running concurrently throughout the five-day period. The Vienna gathering is appropriately being held at Sigmund Freud University.

For me, the Congress is an opportunity to learn about important intersections between law, public policy, psychology, and mental health on a global scale. It’s also a chance to connect with friends and colleagues within the therapeutic jurisprudence community. Therapeutic jurisprudence (TJ), as I’ve written here before, is a school of legal thought that examines the therapeutic and anti-therapeutic properties of law, legal processes, and legal practice. I originally became associated with the TJ community through my work on workplace bullying and the law. Now the TJ lens substantially frames my perspectives on the law.

With so many participants descending upon a big city (the last three Congresses were held in Amsterdam, Berlin, and New York), this can easily become the type of event where one feels lost in the crowd. However, the International Network on Therapeutic Jurisprudence has organized a “conference within a conference,” a series of panels on various aspects of therapeutic jurisprudence, held over the entire course of the event. While even those who are strongly connected to the TJ community often present at and attend other panels, the dedicated array of TJ-related panels serves as a sort of home base. People become more familiar with names and faces and thus are more likely to forge connections that would be more difficult to make without this ongoing series of panels.

The importance of this global perspective cannot be overemphasized. Compared to many other nations, the U.S. is often somewhat resistant toward integrating psychological perspectives into its laws and legal procedures. American law students discover this right at the beginning of their studies, when they learn how legal doctrines such as criminal law and tort (personal injury) law struggle to find a place for psychology and mental health in assessing key questions such as intent and emotional distress.

It’s also a treat to be able to spend some time exploring Vienna. I have not been here since 1981, when I followed a semester abroad in England with a quick tour through parts of western Europe. There is so much culture and history in this city, starting with the tumultuous 20th century and going way, way back. Of course, Freud and Carl Jung also made their imprints here, so I’m bound to pick up some lessons in psychology as well beyond what I learn at the conference.


Cultivating heart quality in professional practices

Carolyn Thomas, a heart attack survivor and women’s health advocate, writes about the importance of kindness in health care practice in her popular Heart Sisters blog, starting with a story about her visit to the emergency room and subsequent placement in the cardiac care unit:

What I do vividly remember, however, is a small but profound act of kindness later that day when I was brought to my bed in the CCU (the cardiac intensive care unit). The nurse who came to greet me as my gurney was pushed off the elevator placed one gentle hand on my shoulder (and more importantly kept it right there as she walked alongside down the long corridor). As we moved, she bent lower over my head to speak slowly and softly into one ear, introducing herself and assuring me that I was “in the right place” – and that her whole team would do their best to take very good care of me while I was with them.

She goes on to reference, among other things, studies showing that medical students’ levels of empathy begin to decline during the course of their training:

Much of this interaction, however, depends largely on health care professionals’ ability to empathize – to imagine what it’s like to walk in the hospital booties of their patients.

So it’s shocking for many people to learn that, even among naturally kind and empathetic medical students, studies suggest that empathy for others begins to wane by the third year of med school as students progress. This is particularly true, apparently, for future doctors entering technology-oriented specialties – like cardiology.

Thomas’s article raises important questions about the training and education of those entering the helping and human service professions, especially fields such as health care, law, and social services.

For example, a healthy dose of training in client counseling should be an important part of a law school program, including the cultivation of greater sensitivity to a client’s emotional state during often stressful legal proceedings. Therapeutic jurisprudence, the school of legal thought that examines the therapeutic and anti-therapeutic properties of the law, legal practice, and legal education, takes these matters seriously.

To illustrate, in a 2010 law review article, “Employment Law as if People Mattered: Bringing Therapeutic Jurisprudence into the Workplace,” I devote a lot of attention to client counseling in the context of employment disputes, including the recognition that clients may be experiencing considerable anxiety and stress in view of the stakes involved.

These considerations should be examined against the broader canvass of emotional and social intelligence. As I wrote four years ago in a post on leadership:

For those who have the personal qualities to be effective leaders but lack the background and experience, leadership and management training programs emphasizing the so-called “soft skills” would help sensitize them to the human aspects of their jobs.

In fact, it’s arguable that basic management training should be part of all professional degree programs, such as medicine, education, law, and business. This initial exposure can be augmented by continuing education offerings for those elevated to leadership positions.

Maybe this seems like a lot in order to get back to the point of Carolyn Thomas’s blog post: How a nurse’s simple words of comfort and reassurance helped her to deal with a life-threatening health crisis. Nevertheless, in professions that, by their nature, must place great emphasis on analysis and problem solving, the human element needs reinforcing as well.


Hat tip to Peggy Berry for the Thomas article.


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