Can neuroscience give us an accurate lie detector for employment disputes?

What if we had the use of a reliable, scientifically trustworthy lie detector test for determining who is telling the truth in employment disputes and litigation?

It’s possible that the field of neuroscience someday will provide a test for doing so.

The fMRI test

Clay Rawlings and Rob Bencini, writing in the current issue of The Futurist magazine published by the World Future Society, explore potential applications of functional magnetic resonance imaging (fMRI) tests for the purpose of detecting lies in legal proceedings:

Functional magnetic resonance imaging (fMRI)—a technique for measuring and mapping brain activity—allows psychologists to observe the brain as it functions in real time. Two companies, No Lie MRI Inc. and Cephos Corporation, claim that they can use fMRI to determine conclusively whether or not an individual is telling the truth.

…This methodology should be foolproof: You either have a real memory, or you do not. If your answer is based in fantasy rather than memory, it is almost certainly a lie.

…At some point, this technology may replace random groups of 12 jurors as the “finders of fact.” We will know with certainty whether someone is telling the truth.

…If technology can tell us with scientific certainty whether a person is telling the truth, why not place a scanner above the witness stand? As witnesses testify, the court will be able to see in real time whether or not the testimony is true.

Applying the fMRI to employment disputes

I’ve written about how the tools of neuroscience can be used to measure post-traumatic stress disorder. For targets of workplace bullying and harassment, someday this test might be utilized to prove damages due to abusive conduct.

Perhaps the fMRI could play a similarly useful role in assessing truth telling in employment disputes, including those that have led to litigation.

Imagine a test that sorts truth from fiction when allegations of bullying, sexual harassment, and other forms of worker misconduct arise. For targets of these behaviors who have had the exasperating, painful experience of being ignored or regarded dismissively, this could be a way of getting to the heart of the matter.

Caution (lots of it)

But let’s not get carried away. Even putting aside expenses, we’re a long way from proclaiming the fMRI test as being sufficiently foolproof for routine use.

We have an excellent example of why caution is advisable: The most commonly recognized electronic “lie detector test” is the polygraph machine, which has a long history of usage in law enforcement settings. Furthermore, until the late 1980s, it was a popular pre-employment screening mechanism for prospective employees.

However, polygraph evidence has never been admissible in criminal proceedings, due to ongoing concerns about its reliability. Furthermore, after the Congressional Office of Technology Assessment raised severe doubts about the polygraph’s reliability as employee screening tool, Congress banned this use through the Employee Polygraph Protection Act of 1988.

Therefore, we should regard the fMRI, or any other scientific test, with reasonable skepticism. Can it detect the lies of a psychopath? Will it falsely identify honest statements as being untrue? These are among the questions that must be answered.

For targets of workplace abuse, a genuine lie detector test may seem like a panacea. We’re not there yet, but perhaps someday scientific technology will deliver a solution.

***

Related posts

Brain science and the workplace: Neuroscience and neuroplasticity (2011)

In recovering from adversity, past adversity can fuel our resilience (2011)

Do organizations suppress our empathy? (2010)

Understanding the bullied brain (2010)

Bully Rats, Tasers, and Stress (2009)

Why concentrated power at work is bad (2009)

Visiting Louisville to talk about workplace bullying and the law

WARNS-savethedate-500

I was fortunate to make my first-ever visit to Louisville, Kentucky, to speak at the annual Warns-Render Labor and Employment Law Institute, a major regional continuing legal education program sponsored by the University of Louisville’s Brandeis School of Law.

I gave an overview of workplace bullying and attendant legal issues. I was delighted to be joined by Indiana attorney Kevin Betz, lead counsel on the Raess v. Doescher litigation that culminated in a 2008 Indiana Supreme Court decision and helped to bring wide attention to legal issues surrounding workplace bullying. Here’s what I wrote about the case in 2009:

In the 2008 case of Raess v. Doescher, the Indiana Supreme Court affirmed a jury award of $325,000 for assault to a perfusionist (operator of “a heart-lung machine during open heart surgeries”) who brought an action against a surgeon for an altercation at a hospital. The claim was based on the following factual allegations:

(T)he defendant, angry at the plaintiff about reports to the hospital administration about the defendant’s treatment of other perfusionists, aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him. The plaintiff backed up against a wall and puts his hands up, believing that the defendant was going to hit him…. Then the defendant suddenly stopped, turned, and stormed past the plaintiff and left the room, momentarily stopping to declare to the plaintiff, “you’re finished, you’re history.”

The Court’s decision was based largely on procedural and evidentiary issues. It rejected a challenge to expert testimony about workplace bullying rendered by Dr. Gary Namie for the plaintiff, finding there was nothing in the record to suggest that Namie’s testimony was inadmissible, and ultimately holding that the issue was not properly preserved for appellate review. It also held that the trial court “did not abuse its discretion in refusing” the defendant’s tendered jury instruction concerning workplace bullying.

The legal impact of Raess v. Doescher with regard to workplace bullying is modest because of the limited scope of the Indiana Supreme Court’s holdings. It created no new legal claim, and did not expand substantive tort law in a way that might pave the way for future plaintiffs. However, the decision has received national attention because the media characterized it as a successful workplace bullying claim. It has been cited as evidence of a growing liability risk that counsels employers to take workplace bullying more seriously.

Continuing legal education programs are a useful way to introduce legal issues relevant to workplace bullying to practicing attorneys, and this was an enjoyable, albeit all-to-brief(!) opportunity to do so. Many thanks to the folks at the University of Louisville, especially professor Ariana Levinson, ombudsman Tony Belak, conference chair Don Meade, and administrator Margaret Bratcher for facilitating my visit and their kind hospitality.

Exorbitant student loan debt: The biggest “duh” crisis ever?

Natalie Kitroeff reports for the New York Times on the impact of student loan debt on the ability of graduates to rent or buy real estate in New York City:

For young people, moving to New York City hasn’t made much mathematical sense for decades. The jobs don’t pay enough, the internships don’t pay at all, and the rents are prohibitive by any sane standard.

But now add a new economic fact of life to that list: soaring student loan debt. More students are taking out bigger loans than ever before, and in the last 10 years alone, education debt tripled, reaching over $1 trillion. A record number of college students are graduating knee deep in a financial hole before they begin their adult lives.

She adds that some big-name economists are weighing in on the broader implications for the economy:

Economists are worried. Last month, former Treasury Secretary Lawrence Summers said that student loan debt was taking the life out of the housing recovery, and the Nobel laureate Joseph Stiglitz called the rising debt “an educational crisis” that is “affecting our potential future growth.”

I’m not criticizing the article — a good piece that includes profiles of recent graduates struggling with NYC’s real estate market and their student loan payments — when I say this:

We are at least two decades late in labeling the student loan debt situation a “crisis.”

Today, you’ll find plenty of news and commentary covering the student loan debt crisis. Elected officials are considering policy options as well. But the problem was in the making years ago, and the implications were clear to anyone who was paying attention.

In the 1980s, tuition levels began to soar above the rate of inflation, while grants and scholarships gave way to student loans as the primary form of financial aid, often at high interest rates. These trends continued largely unabated through the current economic meltdown.

Yeah, I take this one a bit personally. Over the years I’ve experienced a lot of eye rolls and sighs in faculty meetings when I’ve warned about a looming crisis in student loan debt and the role of legal education in stoking it. I’ve also been vocal on the impact of heavy debt on graduates who want to enter public service.

As with most overlooked crises, so much of the damage already has been done, placed on the shoulders of heavily indebted graduates. We’d better act quickly and meaningfully if we want to stop this one from getting even worse.

As graduation season approaches, some words of advice to students (and others)

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[As a law professor at Suffolk University Law School, I’ve been serving as the founding faculty advisor to a new student-edited law journal, Bearing Witness: A Journal on Law and Social ResponsibilityBW just published its second issue, and I contributed a short column of advice to the students in response to a request from the editors. I thought I’d share it here.]

When the editors of Bearing Witness invited faculty to contribute short pieces of advice for the second issue, I wasn’t sure what to offer. But then I started thinking about life in general, and suddenly the words came easier. Do not assume that I’ve done all these things right; rather, some of these points represent lessons learned. Here goes:

  1. Living a fulfilling life beats living a mindlessly happy one. Just my opinion.
  2. Pick your battles carefully, but don’t use that maxim as an excuse for never getting involved. The world is littered with people who always find reasons not to take a principled stand.
  3. When it comes to people you want to be around, political affiliations may be important, but overall character and a sense of humor count for even more.
  4. The years ahead will be very challenging ones for this world. Concerns about the economy, jobs, and the environment, to name a few, aren’t going away. Strive to contribute solutions.
  5. Personal setbacks and hard times are never good, but they can teach us about resilience, recovery, and renewal.
  6. A dose of self-promotion is often helpful toward success, but rather than constantly trying to impress people, let your work and deeds do most of your speaking for you. Avoid becoming one of those highly credentialed individuals whose greatest talent is “wowing” people in an interview.
  7. The Golden Rule is hard to live by sometimes, but it’s a key to a better world.
  8. If someday you reach a point where you have a group of friends going back 20 years or more, consider yourself blessed.  Make those friends now, and in 20 years you’ll know what I mean.
  9. All that stuff about finding your own way, choosing your own path, etc., may sound trite, but give it some hard thought. Few things are worse than living an inauthentic life.
  10. Be accountable to yourself. Own up to your miscues and mistakes. It’s easier said than done, I know, but you’ll feel better about yourself in the long run.
  11. Keep learning and growing. If someone wrote in your high school yearbook, “Stay the way you are! Don’t ever change!,” don’t take it literally.
  12. Whether you loved law school, hated law school, or fell somewhere in between, you can use this knowledge to make a positive difference. Good luck!

******

Related posts

How a Cole Porter musical embodies Howard Gardner’s multiple intelligences (2013) — Includes a link to a terrific Ball State University commencement speech by Tony Award-winning performer Sutton Foster, who tells graduates, above all, don’t be a jerk.

Inauthenticity and the fast track to a midlife crisis (2013) — “But one of the most important lessons I’ve learned is to pick and choose wisely among these markers of achievement. If you fail to do so, you may find yourself living an inauthentic life (at least the part spent at work), and your psyche may struggle with the grudging realization that you’re pursuing someone else’s definition of success.”

Some Graduation Day-type reading (2012) — “For those of us in the education field, this is Commencement season, and with it brings the usual blizzard of graduation speeches — a few truly excellent, most okay, and a sprinkling of the genuinely dreadful. I’m not about to offer the online version of one of these speeches, but instead, I want to share four books for graduates and non-graduates alike that contain a lot of wisdom, guidance, and food for thought.”

How’s this for an epitaph? “She lived a balanced life” (2011) — “Way back in 1985, Norman Redlich, the dean of NYU Law School, referenced those Broadway lyrics in his remarks at our graduation convocation. His message: It sounds great, but most of us can’t have it all. There are choices to make and realities to navigate in a life that moves all too quickly.”

Willy Loman, defining success, and the Great Recession (2010) — “J.K. Rowling . . . told the graduates that bottoming-out as a financially-strapped single mom prodded her to finish the manuscript that led to the Harry Potter series. Rowling smartly added: ‘You will never truly know yourself, or the strength of your relationships, until both have been tested by adversity.'”

******

I contributed a longer piece to the first issue of Bearing Witness, “If It Matters, Write About It: Using Legal Scholarship to Effect Social Change.” Go here to access a pdf copy.

This article is an expanded version of an earlier post to my personal blog, Musings of a Gen Joneser.

Visioning law and legal systems through a psychologically healthy lens

One of my periodic “battery rechargers” is the opportunity to reconnect in person with a network of law professors, lawyers, judges, and students associated with a school of legal thought called therapeutic jurisprudence (“TJ”), which examines law, legal procedures, and the legal profession from the standpoint of psychological health. Law professor and TJ co-founder David Wexler (U. Puerto Rico) defines therapeutic jurisprudence this way:

Therapeutic Jurisprudence (TJ) concentrates on the law’s impact on emotional life and psychological well-being. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does not suggest that therapeutic concerns are more important than other consequences or factors, but it does suggest that the law’s role as a potential therapeutic agent should be recognized and systematically studied.

David was among those who came to Boston and Suffolk University Law School for a Friday public symposium, “The Study and Practice of Law in a Therapeutic Key: An Introduction to Therapeutic Jurisprudence,” followed by a smaller Saturday workshop to plan future TJ activities and initiatives.

In addition to thanking David, I’d like to extend my warm appreciation to out-of-town participants Mark Glover (U. Wyoming), Michael Jones (Arizona Summit), Shelley Kierstead (York U., Osgoode Hall), Michael Perlin (New York Law School), Amanda Peters (South Texas), Amy Ronner (St. Thomas U., Florida), and Carol Zeiner (St. Thomas U., Florida), as well as to my Suffolk colleagues Gabriel Teninbaum, Kathleen Vinson, and Patrick Shin, for being a part of the two-day program.

You can view the agenda for the Friday symposium here. My presentation on  employment law drew heavily from this blog to emphasize the significant stress and anguish experienced by workplace bullying targets, the importance of multi-faceted counseling & coaching for those targets (legal, mental health, and career), and the need to reform our legal processes for resolving employment-related disputes.

As a law professor and lawyer, the TJ community has become my intellectual home base. Equally important, it has provided me with a group of dear friends and colleagues. Last night, a group of us went out to a karaoke bar here in Boston, and while we probably shouldn’t count on Plan B careers as performing artists, we had great fun. Tonight we’ll be heading out for a nice Italian dinner in Boston’s North End. Such fellowship with good people confirms that I’m running with the right crowd for me.

***

For more on the International Network on Therapeutic Jurisprudence, go to the network website.

You may also join the TJ Facebook page here.

 

April 11 Boston program: How can we create psychologically healthier legal systems?

At a time when levels of unhappiness within the legal profession run high, and litigants’ experiences with the legal system are often stressful and unpleasant, an April 11 symposium at Suffolk University Law School will examine how legal practice and legal proceedings can be made psychologically healthier for all involved.

The symposium, titled “The Study and Practice of Law in a Therapeutic Key: An Introduction to Therapeutic Jurisprudence,” will be held on Friday, April 11, from 10:00 a.m. to 2:30 p.m., at Suffolk University Law School, 120 Tremont Street, in downtown Boston.  It is sponsored by the school’s New Workplace Institute.

Therapeutic jurisprudence (TJ) is a school of legal thought that examines the therapeutic and anti-therapeutic aspects of the law, legal practice, and legal profession.  TJ has attracted the interest of practicing lawyers, judges, law professors, and law and graduate students.  The Suffolk workshop will feature law professors from the U.S. and Canada presenting TJ perspectives on legal practice, including legal writing and drafting, appellate advocacy, and specific fields such as mental health law, criminal law, employment law, tort law, and trusts & estates law.

“Too many lawyers are stressed out in their practices, and too many members of the public have terrible experiences with our legal systems, even when they win,” said Suffolk law professor David Yamada, director of the New Workplace Institute and organizer of the conference.  “Therapeutic jurisprudence is part of a solution that fosters psychologically healthier legal systems, legal results, and lawyers,” he added.

The symposium is designed for lawyers, law teachers, and law students, but members of the public are invited as well.

Program

10:00 a.m. Welcome

  • Prof. David Yamada, Suffolk University Law School
  • Assoc. Dean Patrick Shin, Suffolk University Law School

10:15 a.m. — Panel 1: Applying to TJ to law teaching, legal writing, and drafting

  • Hon. Michael Jones, Arizona Summit Law School — “Teaching Therapeutic Jurisprudence”
  • Prof. Shelley Kierstead, York University, Osgoode Hall — “Legal Writing, TJ, and Professionalism”
  • Prof. Amy Ronner, St. Thomas University Law School — “Lessons from Bartleby the Scrivener for an Appellate Practice Clinic”
  • Prof. David Wexler, University of Puerto Rico School of Law — “The Emotional and Legal Benefits of Reforming Legal Forms”
  • Discussant: Prof. Kathleen Elliott Vinson, Suffolk University Law School, and President, Association of Legal Writing Directors

12:00 noon — Light Lunch

  • Speaker: Prof. David Wexler, TJ co-founder — “The Creation, Present, and Future of Therapeutic Jurisprudence”

1:00 p.m. — Panel 2: Applying TJ to legal practice areas

  • Prof. Mark Glover, University of Wyoming College of Law — “The Solemn Moment: Expanding Therapeutic Jurisprudence Throughout Estate Planning”
  • Prof. Michael Perlin, New York Law School — “’There’s a dyin’ voice within me reaching out somewhere': How TJ can bring voice to the teaching of mental disability and criminal law”
  • Prof. Amanda Peters, South Texas College of Law — “TJ and Mental Health Courts”
  • Prof. Gabriel Teninbaum, Suffolk University Law School — “Putting Patients First in the Aftermath of Medical Malpractice”
  • Prof. David Yamada, Suffolk University Law School — “Employment Law, Stress, and Employee Well-Being”

2:30 p.m. Closing remarks

  • Prof. David Yamada

Location

The workshop will be held at Suffolk University Law School, 120 Tremont Street, in downtown Boston.

To Register

Registration (including a light lunch) is free, but space is limited. To register, please send an e-mail to Patricia McLaughlin at tmclaughlin@suffolk.edu by Wednesday, April 9 with “TJ Conference” in the subject line and include in the text your name, affiliation, and e-mail address.

For more on the International Network on Therapeutic Jurisprudence, go to the network website.

“Rebellious Lawyering” conference: Discussing origins and meaning of the intern rights movement

From the Rebellious Lawyering conference program book

From the Rebellious Lawyering conference program book

On Friday I was part of a terrific panel discussing unpaid internships at the annual Rebellious Lawyering conference, held this year at Yale Law School. Among other things, we discussed how the emerging intern rights movement got started and how the seeds of litigation challenging unpaid internships were planted. It was an honor to be in the presence of three individuals who are pioneers in the intern rights movement, Eric Glatt, Ross Perlin, and Rachel Bien. More about their signature roles below…

Path to pathbreaking lawsuit

My connection to this august group came about from an article I wrote over a decade ago.

In a 2002 law review article, “The Employment Law Rights of Student Interns” (Connecticut Law Review), I set out a legal framework arguing that many unpaid internships violated minimum wage laws. Frankly, it didn’t cause much of a stir. Rather, over the years it attracted a handful of citations in other law review articles, and this was pretty much about it.

That changed when writer Ross Perlin cited and touted the article in his seminal book, Intern Nation (2011; 2012 updated p.b. edition), the first comprehensive examination of the social, economic, and legal implications of the burgeoning intern economy.

9781844678839 Intern Nation PB

Ross was the first writer to connect all the dots on the intern economy. I regard his book as the bible of a new movement. It’s quite possible that none of this would’ve happened had he not written it.

Among the early readers of Intern Nation was Eric Glatt, an MBA holder and former unpaid accounting department intern for the Fox Searchlight Pictures production of the movie “Black Swan.” Eric spied the references to my law review article, and after reading it he came away with ideas for a lawsuit seeking back wages from Fox. He sought a law firm to explore this possibility, and he found one of the very best in Outten & Golden, a leading plaintiffs’ employment firm in New York City. They decided to file suit, and Rachel Bien, a partner at the firm, would serve as lead counsel.

The lawsuit prompted some media coverage when it was filed, and then the story exploded when, last June, a New York federal district court judge ruled that Glatt and co-plaintiff Alex Footman were entitled to back pay under state and federal minimum wage laws and certified the case as a class action for other Fox interns.

Rachel and Eric are now planning for the case to be heard by the U.S. Court of Appeals.

In the meantime…

As the lawsuit against Fox was percolating, Glatt and others were busy organizing in New York.

Out of the Occupy Wall Street movement came a working group that evolved into Intern Labor Rights. ILR has become the “go-to” informational and organizational presence on challenging unpaid internships. More than any other group, ILR is responsible for branding this as a movement now properly “owned” by a younger generation of activists who are putting their own stamp on it via creative social media outreach, organizing, and advocacy.

From Intern Labor Rights

From Intern Labor Rights

Many more lawsuits challenging unpaid internships have been filed. Some have settled; others are pending. The intern rights movement has hit the court dockets.

There’s so much more I can say, but I’ll save space and simply reference these three excellent resources:

  • Go here for a comprehensive report by Intern Labor Rights documenting the extraordinary developments of 2013.
  • Go here for ProPublica’s wide-ranging investigative project on the intern economy.
  • Go here for an in-depth Boston Globe Sunday magazine cover story on unpaid internships by Melissa Schorr.

Beyond unpaid internships

The discussion about unpaid internships at the Yale conference quickly evolved into a broader examination of social, economic, and political ramifications concerning students, recent graduates, and work, especially as it pertains to law students and new lawyers who want to do public interest work.

There’s a particular dilemma here for those who want to extend legal services to the poor, while not wanting to deprive law students and lawyers from compensation for their work, especially during rough economic times for the legal profession. Because most of the unpaid intern litigation has focused on for-profit corporations, the applications of wage & hour laws to the non-profit sector are unsettled. In a nutshell, federal minimum wage laws do not exempt non-profit employers, but they also allow for taking on volunteers. Hence, there’s a massive gray area for legal pro bono work.

In addition, the dialogue explored the implications of the intern economy for work in general. What happens when young people get caught in a cycle of constant unpaid “opportunities,” with no paying work on the horizon? Indeed, the narrower focus on internships per se is giving way to a broader inquiry about employment, jobs, and the labor market in the midst of the meltdown economy, as it should.

***

Nostalgic, already

Please forgive a brief nod to my Cancerian nostalgic side, but at the conference I couldn’t help but reflect upon a December 2011 meeting with Eric, Ross, and journalist Tiffany Ap at my favorite Manhattan diner. Ross’s book had been published earlier that year, and Eric had filed his lawsuit in September. As you can read from the tone of my write-up on our get together, we had very little idea of what was to come.

Since then, it has been my pleasure to serve in a background, resource role to this growing movement. As I suggested above, it is now the province of a younger generation. I’m happy to say that there’s more to come.

You may go here for my 2002 law review article (Connecticut Law Review) on internships and go here for my forthcoming 2014 law review article (Northeastern University Law Journal) discussing legal and policy developments of the past three years.

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