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

Screenshot from (Photo: DY)

Screenshot from (Photo: DY)

What if our laws and legal systems focused on creating psychologically healthy outcomes for parties involved in legal matters and for society as a whole? What if considerations of economics (leaning right) and rights (leaning left) in creating law and policy were screened through the lens of psychological well-being of people affected by those laws and policies?

Long-time readers may recognize that I have aligned myself with therapeutic jurisprudence (“TJ”),  a school of legal thought that examines the therapeutic and anti-therapeutic properties of the law, legal practice, and legal education. In essence, TJ asks if our laws and legal systems lead to psychologically healthy results, and it implicitly favors initiatives designed to make them so.

I discovered the TJ community as a result of my work on workplace bullying and employment law & policy, and I have found it to be a welcoming and natural home for my legal scholarship and public education work.

Now I have taken this affiliation a step further by joining the Advisory Group of the International Therapeutic Jurisprudence in the Mainstream Project, which “seeks to promote the use of Therapeutic Jurisprudence…approaches in mainstream legal settings through a variety of activities,” including a blog (photo above) and:

  • Linking the latest research and resources with the people who are doing this work “on the ground” in courts and tribunals – judges, lawyers, prosecutors, managers, staff and court support workers.
  • Encouraging and sharing TJ scholarship among academic and students in law and other disciplines.
  • Linking people with expertise in this area with others who want to explore how TJ can make their courts and tribunals more effective.

The Project is the brainchild of TJ co-founder and law professor David Wexler (Puerto Rico), Australian magistrate judge Pauline Spencer (Victoria), and law professor and retired judge Michael Jones (Arizona).

The Project’s Advisory Group (list and bios here) is drawn from 18 countries and “includes judges, lawyers and prosecutors, academics and students in the field of law and other fields such as psychology.”

TJ’s challenge

How do we make the promotion of psychologically healthy outcomes a prime objective for our laws and legal systems?

In a field so dominated by considerations of logic, reasoning, economics, rights, and procedure, psychology and human emotion are often regarded with some discomfort for their lack of precision and, well, messiness.

And yet, it makes perfect sense to me that the psychological well-being of individuals and society as a whole should be a primary lens through which we view and develop the law and its institutions. This is far from being the dominant viewpoint among lawyers, judges, and policy makers, but that reality only makes it more important for us to gather together (often virtually) to promote the mainstreaming of TJ.

This is among the many reasons why I am delighted to be more closely affiliated with this global assemblage of lawyers, professors, judges, and students. They inspire me with their dedication to the hard work of making the world a better place.


Of possible interest

I’ve written two law review articles expressly built around ideas of therapeutic jurisprudence. They can be freely accessed here:

Therapeutic Jurisprudence and the Practice of Legal Scholarship (University of Memphis Law Review, 2010).

Employment Law as if People Mattered: Bringing Therapeutic Jurisprudence into the Workplace (Florida Coastal Law Review, 2010).

Academic conferences: When small is beautiful

I am becoming a big fan of smaller scale academic gatherings that allow time and space for dialogue and fellowship. Toward that end, I’ve just posted to my Social Science Research Network page a short essay, “Academic Conferences: When Small is Beautiful” (Suffolk University Law Review Online, 2015), which may be downloaded without charge. The essay grew out of a 2014 symposium on therapeutic jurisprudence (TJ) that I hosted at Suffolk University Law School. Here’s the abstract:

This essay makes a case for organizing and hosting smaller academic conferences, workshops, and symposia that promote genuine dialogue and move at a slower, more contemplative pace. Although the main purpose of an academic gathering is not to create and experience a “feel good” event, smaller scale programs may better facilitate spirited, respectful dialogue, intellectual exchange, and an ethic of fellowship that nurtures connections and friendships. In addition, in offering post-program publication opportunities, we may consider packages of shorter essays as less burdensome alternatives to full-length symposium issues of journals. This essay grew out of the author’s hosting of, and participation in, a small conference on therapeutic jurisprudence at Suffolk University Law School in 2014.

Therapeutic jurisprudence symposium

The piece also serves as an introduction to five essays authored by presenters at the 2014 symposium, which may be downloaded here. In brief, here are the authors and their topics:

  • Prof. Mark Glover, University of Wyoming College of Law (TJ and estate planning)
  • Prof. Michael Jones, Arizona Summit Law School (Teaching TJ)
  • Prof. Shelley Kierstead, Osgoode Hall Law School, York University (TJ and legal writing)
  • Prof. Michael Perlin, New York Law School (TJ law teaching & scholarship vis a vis mental health & criminal law)
  • Prof. David Wexler, University of Puerto Rico School of Law (mainstreaming TJ in criminal & juvenile justice law)

Academic culture and practice

For those interested in reading more of my thoughts on academic culture and practice, especially in legal scholarship, here are two pieces I’ve authored, which can be accessed by clicking the titles:

If It Matters, Write About It: Using Legal Scholarship to Effect Social Change (Bearing Witness: A Journal on Law and Social Responsibility, 2013) — From my abstract: “This essay centers on the concept of ‘intellectual activism,’ discussing how legal scholarship can be used as the foundation for social change work. It recounts and reflects upon the author’s ongoing work in advancing issues such as workplace bullying and the rights of student interns. It concludes with advice on how to be effective in an intellectual activist mode.”

Therapeutic Jurisprudence and the Practice of Legal Scholarship (University of Memphis Law Review, 2010) — From my abstract: “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.”


Related posts

Workshopping human dignity (2014)

Inspiration in Amsterdam (2013)

Why conferences? (2013)

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Presenting about workplace bullying & the law at annual legal education conference

On Monday, I’ll be participating in a panel discussion titled “Emotions At Work: The Employment Relationship During an Age of Anxiety,” at the annual meeting of the Association of American Law Schools (AALS), being held this year in Washington, D.C. My presentation is titled “Is Workplace Bullying Entering the Mainstream of American Employment Law?”

The AALS annual meeting is the major U.S. conference for legal academicians, and thus it will be a good opportunity to talk about workplace bullying and the law with fellow employment law professors.

In essence, I’ll be briefly covering developments that long-time readers of this blog have been following for years, including:

  • Introduction of the Healthy Workplace Bill in some 25 states over the past decade;
  • California and Tennessee workplace bullying legislation enacted in 2014;
  • Municipal and county anti-bullying policies covering public workers & proclamations supporting Freedom from Workplace Bullies Week ;
  • County grand jury reports on workplace bullying in county agencies;
  • Insurance companies starting to cover bullying-related lawsuits in Employment Practices Liability Insurance policies;
  • Professional associations, such as the Joint Commission (a non-profit organization that accredits health care providers), addressing workplace bullying in their membership requirements; and,
  • A growing amount of legal scholarship and coverage in the legal media about workplace bullying.

While these are all constructive developments, my main editorial point will be that workplace bullying has yet to enter the mainstream of U.S. employment law, especially in comparison to its presence in academic and professional fields such as organizational psychology and human resources. And obviously, we’re behind those countries that have enacted workplace bullying laws on a national or state/provincial levels.


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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


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)


[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.


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