Using scholarship to make a difference

I’ve been spending large chunks of recent weekends working away on a law review article about therapeutic jurisprudence (TJ), the school of legal thought that examines the therapeutic and anti-therapeutic properties of laws, legal systems, and legal institutions. In this article I’m trying to pull together many aspects of TJ as a field of study, scholarship, and practice. As steady readers of this blog may know, I’ve been deeply involved in the TJ community for many years. TJ’s emphasis on the psychological impact of the law and the importance of human dignity has strongly shaped my own thinking and scholarship.

When I first became a law professor, I was skeptical about the potential of legal scholarship to influence law reform. My intention was to do scholarship in sufficient volume and quality to earn tenure, and then to pursue writing and activist projects that didn’t involve lots of citations and footnotes.

But my final law review article before going up for tenure was my first piece about the legal implications of workplace bullying, “The Phenomenon of ‘Workplace Bullying’ and the Need for Status-Blind Hostile Work Environment Protection,” published by the Georgetown Law Journal in 2000. (Go here for free pdf.) The response to that article helped to persuade me that scholarship can make a difference in the real world. And so I continue to go at it.

In the meantime, I’ve also written two law review articles that dig into the practice of legal scholarship and how it can be used to engage in law and policy reform activities.

The first article is “Therapeutic Jurisprudence and the Practice of Legal Scholarship,” published by the University of Memphis Law Review in 2010. (Go here for free pdf.) Here’s the abstract describing it:

The culture of legal scholarship has become preoccupied with article placement, citations, and download numbers, thus obscuring a deeper appreciation for the contributions of scholarly work. This article proposes that therapeutic jurisprudence (“TJ”), a theoretical framework that examines the therapeutic and anti-therapeutic properties of the law and legal practice, provides us with tools for understanding and changing that culture.

More prescriptively, the article applies a TJ lens to: (1) identify a set of good practices for legal scholarship; (2) examine the TJ movement as an example of healthy scholarly practice; (3) consider the role of law professors as intellectual activists; and, (4) propose that law schools nurture a scholar-practitioner orientation in their students to help them become more engaged members of the legal profession.

As law review articles go, it’s a fairly brisk piece that covers a lot of ground about the culture of scholarship in American legal education and proposes ways to make the practice of legal scholarship more genuine and attentive to addressing challenges of law and policy.

The second article is “Intellectual Activism and the Practice of Public Interest Law,” published by the Southern California Review of Law and Social Justice in 2016. (Go here to freely download a pdf of the article.) Here’s the abstract describing it:

Intellectual activism is 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 benefit of interested law professors, lawyers, and law students.

This is a very personal piece, grounded in extensive scholarly, public education, and advocacy work that I have done in two areas: (1) fostering the enactment of workplace anti-bullying legislation and building public awareness of the phenomenon of bullying at work; and (2) participating in an emerging legal and social movement to challenge the widespread, exploitative practice of unpaid internships. It also discusses my involvement in multidisciplinary networks and institutions that have nurtured my work, examines the relevant use of social media, and provides examples of how law students can function as intellectual activists. This article closes with an Appendix containing a short annotated bibliography of books that are broadly relevant to the topics discussed in the text.

This is a somewhat longer piece, as it goes into considerable detail about how legal scholarship can be harnessed to engage in law reform activities. I discuss my scholarly and advocacy work concerning workplace bullying and unpaid internships as illustrations of intellectual activism. For those seeking guidance and inspiration on how to translate ideas into action, this article may be useful.

In my last blog post of 2019, I suggested that we should make 2020 a year of working on solutions and responses. This world is a very fractured and divisive place right now, and a lot of people are hurting as a result. For me, writing — of both the scholarly and popular varieties — is a way of answering my own call to action. It is a modest but hopefully meaningful path toward lighting candles amidst the darkness.

MTW Revisions: September 2019

In this regular feature, each month I’m reviewing some of the 1,700+ entries to this blog since 2008 and opting to revise and update several of them. I hope that readers find the revised posts useful and interesting. Here are this month’s selections:

Professional schools as incubators for workplace bullying (orig. 2012; rev. 2019) (link here)  — “It has long been my belief that the seeds of workplace bullying are planted in professional schools that prepare people to enter occupations such as law and medicine. You start with ambitious young people who (1) are used to being heralded as academic stars; (2) do not have a lot of life experience; (3) disproportionally come from privileged backgrounds; and (4) tend to be driven, Type A achievers. You then put them in high-pressured, competitive educational environments that emphasize technical knowledge and skills and a lot of analytical thinking. . . . You then unleash them into the world of work.”

Are calls for more resilience and “grit” an indirect form of victim shaming & blaming? (orig. 2016; rev. 2019) (link here) — “Bottom line? Resilience and grit are good. Targeted bullying, mobbing, and abuse are bad. Let’s strive for less interpersonal mistreatment and more individual resilience. And let’s take more personal and social responsibility for our actions and the state of the world.”

After Auschwitz, Viktor Frankl saw only two races (orig. 2017; rev. 2019) (link here) — “When Viktor Frankl reflected upon his experiences as a Nazi concentration camp prisoner, including time spent at Auschwitz, he concluded that humanity basically can be divided into two races: ‘From all this we may learn that there are two races of men in this world, but only these two — the “race” of the decent man and the “race” of the indecent man. Both are found everywhere; they penetrate into all groups of society. No group consists entirely of decent or indecent people.'”

“Let’s run it more like a business” (The problem with many non-profit boards) (orig. 2014; rev. 2019) (link here) — “If running a non-profit group ‘more like a business’ means empowering effective, inclusive, and socially responsible leaders and holding them accountable, then I’m all for it. . . But all too often, the ‘more like a business’ mantra translates into the same authoritarian, top-down, command & control model that at least some board members who are drawn from the private sector may embrace in their respective roles as executives and managers.”

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.

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…..

Texting suicide case: When words have terrible consequences

In 2014, Michelle Carter, then 17 years old, used an ongoing series of text messages to repeatedly encourage her boyfriend, Conrad Roy, age 18, to die by suicide. Prodded by Carter, Roy killed himself by using a truck filled with carbon monoxide gas.

Carter was convicted of involuntary manslaughter and sentenced to 15 months in prison. Earlier this month, the Massachusetts Supreme Judicial Court upheld her conviction, holding that Carter’s intentions and acts overcame concerns about freedom of speech. As reported by WBUR News:

A young woman who as a teenager encouraged her boyfriend through dozens of text messages to kill himself is responsible for his suicide, Massachusetts’ highest court ruled Wednesday in upholding her involuntary manslaughter conviction.

The Supreme Judicial Court said in a unanimous decision in the novel case that Michelle Carter’s actions caused Conrad Roy III to die in a truck filled with toxic gas in a deserted parking lot nearly five years ago.

…”After she convinced him to get back into the carbon monoxide filled truck, she did absolutely nothing to help him: she did not call for help or tell him to get out of the truck as she listened to him choke and die,” Justice Scott Kafker wrote.

The Court’s full opinion may be accessed here.

Both of these young people had struggled with mental illness during the time preceding Roy’s death:

Carter and Roy both lived in Massachusetts but met in Florida in 2012 while both were on vacation with their families. Their relationship consisted mainly of texting and other electronic communications. Both teens struggled with depression. Carter had also been treated for anorexia, and Roy had made earlier suicide attempts.

Carter was 17 when Roy, 18, took his own life in Fairhaven, a town on the state’s south coast, in July 2014. Her case raised thorny legal questions about free speech and provided a disturbing look at teenage depression and suicide.

“I thought you wanted to do this. The time is right and you’re ready – just do it babe,” Carter wrote in one message.

“You’re finally going to be happy in heaven. No more pain. It’s okay to be scared and it’s normal. I mean, you’re about to die,” she wrote in another.

Boston Globe columnist Kevin Cullen, who has followed this case closely, expresses concerns that, in the court’s eyes, Carter’s actions didn’t become illegal until she directed him to get back into his poisonous gas-filled truck and then failed to call for assistance:

The Supreme Judicial Court unanimously affirmed Juvenile Court Judge Lawrence Moniz’s ruling that Carter was guilty because she took “wanton and reckless” actions by ordering Roy to climb back into his truck and by not summoning help.

The SJC ruling suggests that, absent behavior as egregious as Carter’s, it will be a stretch for prosecutors to charge someone who encourages or coerces a vulnerable person to kill themselves.

Carter repeatedly encouraged Roy to kill himself, recommended ways for him to do it, and chastised him when he lost the nerve, besieging him with text messages and calls so that her cellphone became a virtual weapon. But under current Massachusetts law, none of those abhorrent actions amounted to a crime.

Cullen would like to see the law cover the broader spectrum of Carter’s actions.

When it comes to this particular set of facts, I am comfortable with the legal result: A manslaughter conviction with a very light sentence. The crime for which Carter was found guilty sends the right message, while the sentence imposed takes into account her age, immaturity, and mental health status at the time. As to whether the criminal law should reach deeper into the ongoing course of Carter’s behavior that led to Roy’s death, I think it is worthy of discussion.

Furthermore, Cullen may be hinting at what some of us are thinking: There is something profoundly disturbing about this young woman. Yes, she may have psychiatric problems that call for treatment and understanding. But her own words also reveal how a sharp intellect and a seeming absence of conscience combined to prod and manipulate Conrad Roy into taking his own life. Especially given her age at the time of the act, I will defer to my colleagues with clinical and counseling training to opine on whether this is suggestive of a more baked-in personality disorder that could lead to future like behaviors. That said, in my psychological layperson’s view, she gives me the creeps.

Applications to workplaces

I pay attention to stories like this one in part because I ask how they may be pertinent to workplaces. Alas, there is no shortage of relevancy. The worst instances of workplace bullying and mobbing, and most toxic workplaces generally, are often fueled by intellectually sharp people who lack a conscience. Whether it’s targeted abuse towards an individual, or, say, a wave of ground-level layoffs without an ounce of sacrifice from highly-paid executives, the actions are frequently executed and/or enabled by those who are missing qualities of empathy and kindness. In cases of work abuse, words are typically deployed as weapons.

Here in the U.S., we pride ourselves on boasting that we enjoy the right of free speech, as enshrined in our Constitution. How true that happens to be in reality may be subject to debate, but it is part of our cultural norm nonetheless. In any event, we too often see that right as absolute, rather than acknowledging how freedom of speech should come with a responsibility — moral if not legal — to use it wisely. In some cases, an expression of speech becomes harmful conduct, such as when it is used intentionally to harass, bully, and hurt others. When words are used specifically to wound, and they achieve that desired objective, then we should at least be discussing the possibility of legal interventions.

We’ve already crossed that juncture with employment discrimination laws, under which harassment on the basis of race, sex, religion, disability, and other protected classes is an unlawful employment practice. We’re also working on creating legal protections against severe workplace bullying, mobbing, and abuse via the proposed Healthy Workplace Bill, which is currently pending before the Massachusetts legislature with over 90 co-sponsors. Adapting from sexual harassment law, the bill uses the term “abusive work environment” to signal needed legal protections.

Freedom of speech is necessary for open, democratic societies. But when words are used to abuse and destroy others, well, that’s not something we should be waving the flag about. A decent nation embraces human dignity as part of free expression.

 

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.

Getting beyond the justice lottery of the #MeToo movement

When Fox News program host Gretchen Carlson agreed to a $20 million settlement of her claim accusing Fox News chairperson Roger Ailes of sexual harassment, it helped to spark a movement underscored by the harsh reality that behaviors prohibited under law still manage to flourish in too many workplaces and other settings.

However, for those who have been victimized by sexual harassment and assault, the #MeToo movement remains something of a justice lottery, with some folks more eligible to win than others. A small number of women — mostly in positions of prominence — obtain very large settlements or verdicts in civil claims, and/or pursue successful criminal prosecutions of their abusers. Meanwhile, many others are left to look at these highly publicized outcomes and wonder what it will take to get similar results in their situations.

Please don’t get me wrong. The #MeToo movement is overdue and vitally important. It’s just that there’s a lot more progress to be made before the results obtained in headline-making cases become the norm rather than the exception. This will require cooperative grassroots organizing and support, legal and policy advocacy in the trenches, and media outlets willing to give voice to the stories of all victimized individuals. It also would help if those who are influential within this realm commit to the proposition that the #MeToo movement is not done until it reaches all walks of life.

After all, the chances of obtaining justice should not rival the odds of buying a winning lottery ticket.

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