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.

Published: “Emerging American Legal Responses to Workplace Bullying”

The Temple Political & Civil Rights Law Review has just published my article, “Emerging American Legal Responses to Workplace Bullying,” that emerged from the February 2013 symposium on bullying across the lifespan at Temple University’s law school.

The piece provides a short update of legal and policy developments concerning workplace bullying and includes the current template version of the Healthy Workplace Bill. I had posted a draft last year; this is the final published version.

Although the complete collection of articles from the symposium is not yet available online, you can access Prof. Nancy Knauer’s (Temple U.) overview of the symposium issue here. And for my write-up of the Temple conference, go here.

Previous scholarly articles on workplace bullying and related topics

For readers who would like more in-depth explorations of the legal issues concerning workplace bullying and related topics in the U.S., here are links to, and brief summaries of, relevant journal articles I’ve written over the years. Each may be accessed without charge from my Social Science Research Network page. While these articles are published in academic journals, they nevertheless have attracted many readers who are not lawyers or law professors.

Workplace bullying and the law

The Phenomenon of “Workplace Bullying” and the Need for Status-Blind Hostile Work Environment ProtectionGeorgetown Law Journal, 2000 — This is the first in-depth examination of the American legal and policy implications of workplace bullying. Considered a groundbreaking piece.

Crafting a Legislative Response to Workplace Bullying — Employee Rights and Employment Policy Journal, 2004 — This contains and explains the first version of the Healthy Workplace Bill, as well as brief discussions of early legislative and regulatory responses to workplace bullying in other nations.

Workplace Bullying and American Employment Law: A Ten-Year Progress Report and Assessment — Comparative Labor Law & Policy Journal, 2010 — This piece is part of a collection of articles looking at enacted and proposed legal responses to workplace bullying on an international scale. It contains an updated version of the Healthy Workplace Bill.

Workplace bullying generally

Workplace Bullying and Ethical Leadership — Journal of Values-Based Leadership, 2008 — This article provides a general overview of workplace bullying and its implications for organizational leadership.

Employee dignity generally

Human Dignity and American Employment Law — University of Richmond Law Review, 2009 — I pulled in a lot of historical and theoretical sources in an attempt to construct a case for making human dignity the primary framework for evaluating and shaping U.S. employment law.

Employment Law as If People Mattered: Bringing Therapeutic Jurisprudence into the WorkplaceFlorida Coastal Law Review, 2010 — This article places employment law issues (including workplace bullying) in the context of therapeutic jurisprudence, the school of legal thought that examines the therapeutic and anti-therapeutic properties of our laws and legal systems.

Bullying lawyer suspended from practice for two years

Okay, so this may not exactly shock anyone, but I think it’s worthy of note: The Florida Supreme Court has suspended an attorney for two years in response to his repeatedly confrontational, disrespectful, and bullying conduct toward another lawyer in a litigation matter.

Deborah Cassens Weiss reported for the ABA Journal:

The Florida Supreme court has suspended a lawyer for two years for rude conduct and recommended that the case be studied “as a glaring example of unprofessional behavior.”

The court rejected a referee’s recommended sanction for Jeffrey Alan Norkin as too lenient, saying a two-year suspension is appropriate given Norkin’s “appalling and unprofessional behavior.”

The main object of Norkin’s ire was a 71-year-old attorney named Gary Brooks, who was suffering from Parkinson’s Disease and kidney cancer at the time and has since passed away. The Court noted that Brooks had a “lengthy and unblemished” legal career.

This portion of the Court’s lengthy opinion, quoted here by Weiss, gives you some idea of how bad Norkin’s behavior was toward Brooks and others:

“Competent, zealous representation is required when working on a case for a client. There are proper types of behavior and methods to utilize when aggressively representing a client. Screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him, are not among the types of acceptable conduct but are entirely unacceptable. One can be professional and aggressive without being obnoxious. Attorneys should focus on the substance of their cases, treating judges and opposing counsel with civility, rather than trying to prevail by being insolent toward judges and purposefully offensive toward opposing counsel.”

In my judgment, Norkin’s behavior went way beyond “rude,” the term used by Weiss to describe it. For a copy of the full Florida opinion, go here.

Concerns about bullying and incivility exhibited by lawyers have been raised repeatedly in bar association journals. Anecdotally, at least, the legal profession ranks high in the frequency of reports and complaints about bullying, both within law firms and between opposing counsel.

Not included in Weiss’s article was another piece of the Court’s opinion: It approved the referee’s recommendation that Norkin “undergo a mental health evaluation and participate in any recommended counseling.” I don’t know anything about Norkin beyond what I’ve read in the article and opinion, but this makes sense. Perhaps counseling will lead him to address the sources of his behavior and allow him to someday return to practice in a better state of mind, to the benefit of all concerned.

Neglected blog posts seeking more love

At times I will toil away at a blog post that I really think has something to say, only to find that it’s a dud with my readers. The WordPress platform that I use for this blog enables me to check how many “hits” a given article has attracted, and I can see which ones aren’t exactly lighting up the Internet. (In truth, a niche blog like this one rarely “lights up” the online world, but I’m cool with that.)

Anyway, as I close in on 1,000 posts for this blog, here are 10 articles that I believe fall within the “good-but-neglected” category:

Our avocations and hobbies: The third pillar of work-life balance? (2012) — On the importance of finding non-work activities that engage us.

I wish our political leaders would send us to the moon (2012) — A call for public leaders to inspire us, linking two nifty videos of JFK.

Professional schools as incubators for workplace bullying (2012) — Consider the seeds planted by law schools and med schools.

Loyalty, “betrayal,” and workplace bullying: Does insider status matter? (2011) — As a denizen of Boston, loyalty and betrayal are key concepts to me!

Dignity amidst horrific indignity: A job shoveling s**t in the Łódź Ghetto (2011) — A WWII story that helps to illustrate how almost any job has inherent dignity.

What’s the plot line of your life story? (2011) — Is it about overcoming the monster, comedy, rebirth, or something else???

What if we paid less attention to advertising? (2010) — Instead of “them” telling us what to buy…

The moral obscenity of a “jobless recovery” (2010) — Read this and compare to where we are three years later.

On hiring consultants (2010) — I would underscore what I wrote here.

Work and the middle-aged brain (2010) — Some things we do not as well, some things actually better.

Inspiration in Amsterdam

Anne Frank House, Amsterdam

Anne Frank House, Amsterdam (photo: DY)

I just returned from the biennial Congress of the International Academy of Law and Mental Health in Amsterdam, Netherlands, where I found myself inspired and informed by a global assemblage of professors, lawyers, judges, mental health providers, graduate students, and others who are committed to using law and public policy to advance mental health.

I went to a lot of panels, as the conference was the focal point of trip. However, I did accompany one of my friends to the Anne Frank House, the one “must see” item on my list for this first-ever visit to Amsterdam.

The photo above doesn’t do the site justice. It is the interior, which has been recreated to show us how Anne and seven others lived in hiding for some two years, that is so compelling. I realize that I am among countless others to say it, but it was a very moving experience to stand in the same cramped spaces of the “Secret Annex” where they lived before they were discovered and arrested.

For me, the most chilling part of the tour was walking up the long, narrow stairwell to the Annex, located behind the moving bookcase that covered the entrance. It was the same walk their captors took to arrest them.

You can take your own virtual guided tour of the Annex here.

University of Amsterdam, Faculty of Law building

University of Amsterdam, Faculty of Law building (photo: DY)

As I’ve written before, my participation in this conference is tied to my affiliation with the therapeutic jurisprudence (TJ) movement, the school of legal thought that examines the therapeutic and anti-therapeutic properties of our laws and legal systems. The conference included an ongoing series of 20 or so panels expressly related to TJ, stretching across the week.

In addition, the opening session — held at the University of Amsterdam’s law building shown above — had a special TJ connection. It featured the presentation of the Bruce Winick Award to Michael Perlin, by David Wexler.

These three individuals have played a critically important role in the development of therapeutic jurisprudence: Bruce Winick, who passed away in late 2010, taught at the University of Miami law school and co-founded the TJ movement with David Wexler, now at the University of Puerto Rico law school after many years at the University of Arizona. Awardee Michael Perlin, who teaches at the New York Law School in Manhattan, is among the world’s leading authorities on mental disability law.

One of Amsterdam's beautiful canals, early evening

One of Amsterdam’s beautiful canals, early Sunday evening (photo: DY)

Of course, I would be remiss if I didn’t include at least one photo capturing the beauty of Amsterdam. I opted for a quieter Sunday evening view of one of the canals, a contrast to the younger, louder, anything goes atmosphere that pervades this part of the city. I’m not much of a party animal — I joked to my friends that the free wheeling recreational choices of Amsterdam were wasted on me! — but being in a historic, old world city does allow for some reflective moments. That certainly was the case here, buoyed by the ideas sparked at the conference.

***

Previous posts referencing this conference:

The ongoing disconnect: Employment law and worker well-being

The social responsibilities of intellectuals at a time of extraordinary human need

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