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.

Ten popular MTW posts from 2019

Dear Readers, I’ve collected ten of the most popular MTW posts written during 2019. If you missed them before, I hope they will prove interesting and enlightening to you this time around. Here goes:

Man faced surgery, while bullying co-workers bet on his survival and gave him a toe tag (link here) — When Charlie Bowlby faced heart surgery, his co-workers placed bets on the likelihood that he would survive and gave him a mock toe tag before he went off to the hospital.

Speaking truth to power: Incivility & abrasiveness vs. bullying & mobbing (link here) — Bullying and mobbing are forms of abuse, not bad manners, and we should treat them accordingly.

Workplace bullying, DARVO, and aggressors claiming victim status (link here) — Dr. Jennifer Freyd’s conceptualization of DARVO — Deny, Attack, and Reverse Victim and Offender — applies to many workplace bullying and mobbing situations.

Workplace bullying and incivility: Does kissing up fuel kicking down? (link here) — One study suggests a link between kissing up to one’s superiors and picking down one’s subordinates.

It’s not Yale or fail: The college admissions scandal and our unhealthy obsession with school prestige (link here) — The burgeoning college admissions scandal has prompted a fast-developing and overdue dialogue about how the wealthy and powerful are able to game the college admissions systems on behalf of their children.

Workplace bullying: Should “creative” folks get a pass? (Uh, no) (link here) — A workplace aggressor should not be given a free pass simply because they happen to be creative.

A short list of recommended books for targets of workplace bullying and mobbing (link here) — I thought I’d offer a very selective list of four affordable books that I repeatedly recommend to others.

A short speech in Rome (link here) — The text of my acceptance speech after receiving the Bruce Winick Award for contributions to the field of therapeutic jurisprudence, at the International Congress for Law and Mental Health.

Boston Globe: Two important features on workplace bullying (link here) — Discussing two feature articles, one a piece on a former corrections officer who faced savage bullying and sexual harassment, the other a piece on bullying of resident physicians.

On following evil orders at work (link here) — What if an employee is directed or enlisted to take part in the bullying, mobbing, or harassment of a co-worker?

Let’s make 2020 a year of working on solutions and responses

 

For those of us who are committed to making human dignity a framing characteristic of modern society, let’s make 2020 a year of working on solutions and responses.

Over the years, I’ve witnessed an unsurprising but nonetheless troubling trend about traffic to this blog. On balance, pieces that discuss the hurt, pain, and injustice of workplace bullying, mobbing, and harassment get higher readership stats than those that discuss systemic solutions, law reform, and possible paths toward individual healing & recovery.

This appears to be a twist on internet clickbait patterns generally, whereby online readers are drawn to negative topics that validate and fuel outrage. Let’s face it: Sometimes we’re more likely to curse the darkness than to light a candle. Especially if you’ve been a target of workplace abuse, it’s perfectly natural to react in such a manner.

But lighting that candle towards effective solutions and responses must be our primary objective. And therein lies the hard work before us. In terms of what that means, I can speak only for myself.

Of course, I remain steadfastly committed to enacting the anti-bullying Healthy Workplace Bill. As I wrote earlier this year (link here), we’re on a gradual but inevitable march toward enacting workplace anti-bullying laws in the U.S. It’s taking a long time to do this, particularly in the face of corporate opposition, but we are making genuine progress.

Overall, I’ll be continuing work on several fronts that encourages our legal systems, places of employment, and other political and civic institutions to embrace human dignity as a primary framing value. I will be emphasizing this theme as part of my service on three non-profit boards, in particular: The International Society for Therapeutic Jurisprudence, Human Dignity and Humiliation Studies, and Americans for Democratic Education Fund.

I’m also excited about a new course I’m offering at my law school during the coming semester. It’s called the Law and Psychology Lab, and it will incorporate heavy doses of therapeutic jurisprudence, encouraging law students to examine how laws can support psychologically healthy outcomes in legal disputes and transactions. In addition to developing projects on topics of individual interest, the students will work on a larger, co-created group project with a specific theme, which for this initial offering will be bullying, abuse, and trauma along the lifespan. We will be making some of the results of our work publicly available.

Here’s to a 2020 full of positive change. Let’s all be a part of it.

A short speech in Rome


Judge Pauline Spencer of the International Society for Therapeutic Jurisprudence board of trustees introduced me and presented the award

Hello dear readers, during the next week I’ll be at the International Congress on Law and Mental Health in Rome, sponsored by the International Academy of Law and Mental Health. At the conference’s opening ceremonies on Sunday, I received the Bruce Winick Award for contributions to the field of therapeutic jurisprudence (TJ). I was invited to make a short acceptance speech, and I share it with you below.

A bit of background: In 1987, Bruce joined fellow law professor David Wexler to establish the interdisciplinary field of therapeutic jurisprudence, which examines the therapeutic and anti-therapeutic properties of laws, legal systems, and legal institutions. Sadly, Bruce passed away in 2010. But his memory and important writings, plus the ongoing, energetic presence of David Wexler, continue to inspire us. I’ve written about TJ often on this blog, including how it has become a theoretical and philosophical home base for my work on workplace bullying, mobbing, and abuse. In fact, I’ll be talking about this work at a panel discussion later this week.

This conference has served as a sort of global meet-up for the TJ community. In fact, at the 2017 International Congress in Prague, we launched the International Society for Therapeutic Jurisprudence. (Dues are $25 USD for the calendar year; students may join for free!) I’m now concluding my term as the group’s board chair.

Anyway, here’s the speech, in slightly edited form:

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Bruce Winick Award — Acceptance Remarks — International Congress on Law and Mental Health

David Yamada

July 21, 2019

Ciao a tutti, hi everyone. I want to express my deep gratitude to the International Academy of Law and Mental Health, and to my colleagues in the International Society for Therapeutic Jurisprudence, for nominating and selecting me for this award.

This distinction is especially meaningful because of its namesake, our late friend, Bruce Winick. Bruce co-founded, with David Wexler (another of one of my heroes), the field of therapeutic jurisprudence. But equally important, he was a good soul and a person of exceptional character. I knew Bruce only during the last two years of his life, but throughout that time, he, David, and others, welcomed me with open arms into the TJ community.

In fact, it was around a decade ago that I found myself drawn to TJ, as a mid-career professor. It had finally dawned on me that so much of my work on the legal aspects of workplace bullying and mobbing continually raised questions of psychology and mental health. The 2009 International Congress at New York University, especially, helped me to foster ties with the TJ community and led to friendships that I now regard as lifelong.

As many of you know, Bruce lost his eyesight during his later years. In fact, I recall Bruce at that 2009 NYU conference, sitting in one of the classrooms where sessions were held, often reaching down to affectionately pet Bruno, his loyal friend and service dog.

These warm impressions say a lot about this International Congress on Law and Mental Health. Every time I’m here, the compelling topics and speakers manage to compete mightily with the attractions of the great host cities. Every time I’m here, I make and renew connections with good people. I strongly endorse the adult education and community-building potential of great conferences, and this one stands among the very best.

This 2019 gathering strikes me as having a special significance. Around the world — including in my country — we see authoritarian forces undermining the rule of law and rejecting the values of inclusion, empathy, and compassion. As we scroll through the news headlines on our various devices each day, we may feel like we’re struggling for solutions to these existential threats.

Well, I gently submit that at least some of the answers we seek are in the work that brings us together this week. After all, we know that human dignity and psychological well being are cornerstones of a decent society. We know that psychology, mental health, and other disciplines can shape law and policy to create a better world. We know that kindness and understanding, paired with research and analysis, can be powerful forces for good.

So may I close with a modest suggestion that we use this week to recharge our intellectual batteries, gain new insights and inspirations, and nurture connections with friends and colleagues? And while we’re at it, let’s enjoy some good food and drink, and lots of great sightseeing . . . because after all, we also know that we are in Rome. Grazie, thank you.

Working notes as summer beckons

Briefing MA legislators, staffers, and interns on the Healthy Workplace Bill

Dear readers, with summer now officially here in Boston, I’m working away at various projects, initiatives, and events. In addition to writing a law review article, here is a sampling of what has been keeping me busy and drawing my attention during recent months and heading into summer:

Legislative briefing on MA Healthy Workplace Bill

Last Tuesday, we had a very successful briefing session on the Massachusetts Healthy Workplace Bill (Senate No. 1072, link here), with a full room of legislators, legislative staffers, and interns joining us at the State House. Jim Redmond, legislative agent for SEIU-NAGE, facilitated the briefing. Our lead sponsor, Senator Paul Feeney, spoke about the need for the HWB, and I gave a short presentation about the legal and policy mechanics that have informed my drafting of the bill. We had time for Q&A, which included added remarks by former SEIU president Greg Sorozan, a key leader behind labor efforts to address workplace bullying.

This coming Tuesday, June 25, the legislature’s Joint Committee on Labor and Workforce Development will hold a hearing on labor-related bills, including public testimony on the HWB (go here for info). We’ll be there in full force for that, as well.

Medium highlights the Healthy Workplace Bill campaign

We continue to advocate for workplace anti-bullying legislation on a national basis. Recently, for a piece in Medium titled “How to Outlaw the Office Bully” (link here), I shared this observation with writer Leigh Ann Carey:

“We are benefitting from a ripple effect from the #MeToo movement,” Yamada says. “The media headlines start with sexual harassment, but as you read deeper into the story you find out there’s a lot of generic bullying. These behaviors don’t occur in a vacuum. They hang together. Shouldn’t we be free of all this stuff by now?”

A Rome conference

A recurring educational highlight for me is the biennial International Congress on Law and Mental Health, sponsored by the International Academy for Law and Mental Health (IALMH). Thanks to the good graces of the IALMH, our International Society for Therapeutic Jurisprudence organizes a dedicated stream of panels specifically on therapeutic jurisprudence topics. The conference is a welcomed opportunity to share some of my own work and to attend panels featuring colleagues from around the world.

The next International Congress is scheduled for this July in Rome. I’ve organized two panels for the conference, both of which I’ll share more details later:

  • A panel on “Bullying, Mobbing, and Harassment: Psychological Trauma and Civil Litigation.” I’ll be talking about the concept of “trauma points” in employment litigation, highlighting (1) the many points at which a plaintiff in an employment lawsuit must retell the narrative of an abusive work situation, leading to re-traumatization; and (2) the traumatizing nature of litigation itself, as a legal process. I’ll be building my talk around a prototypical racial harassment claim, drawn from real-life cases. 
  • A panel on “Legislative Scholarship, Design, Advocacy, and Outcomes.” I’ll be examining how therapeutic jurisprudence principles should be applied to the development of public policy, referencing — among other things — the U.S. push for workplace anti-bullying legislation.

I’ve included in my travel schedule a few extra days for sightseeing, as I’ve never been to Rome and look forward to exploring it. But seriously, the conference is a draw in and of itself, as every time I come away from it enriched by the research, insights, and ideas offered by so many of my colleagues. It’s an intellectual treat, with real-world applications.

Blog planning

I’ve never been very systematic about planning entries to MTW, but I’d like to become a bit more focused in the future. Also, with some 1,700 pieces posted here since late 2008, and a lot of other folks entering the social media fray on topics such as workplace bullying, I’d like to spend more time updating past pieces and sharing relevant commentaries from other sites. This summer I’ll be implementing a monthly blogging schedule that looks something like this:

  • A new and original post about workplace bullying, mobbing, and abuse;
  • A post that collects and shares my revisions of, and updates to, some of the 1,700+ articles previously posted here;
  • A post that collects and links to a variety of articles and resources relevant to work, workers, and workplaces, as well as broader, related topics of psychology, economics, and public affairs;
  • A post on miscellaneous topics relevant to this blog.

I’m also going to consider ways in which educators might better access and use the material that I’ve posted here. This idea was planted by a review of this blog discussed below.

Finally, I’m posting more content to my new Facebook Page, especially links to interesting pieces and to relevant past blog posts. If you’re on Facebook, you may receive new postings by “liking” or “following” this link.

MTW receives positive review from educational resources site

MERLOT.org, a popular educational resources site devoted to sharing online materials that can be used for classroom purposes, has given Minding the Workplace a very positive peer review (link here). This is especially gratifying in view of the fact that MTW has not been necessarily designed for classroom use. Nevertheless, the reviewer saw the potential usefulness of MTW for classroom purposes. Here’s a snippet of that review:

The blog underscores workplace issues of enormous contemporary significance (e.g., diversity, bullying, toxic cultures) and provides a perspective that can deepen students’ understanding. The author of the blog is an expert in the subjects that the blog addresses. The blog is exceedingly well-written, well-informed, and professionally presented. Entries link out to a variety of newspapers and periodicals. The blog contains links to key organizations and scholarly articles that address workplace bullying, employee dignity, and employment law. 

The reviewer concluded that MTW is an “excellent resource for faculty and students who have an academic or professional interest in issues and challenges related to workplace culture.”

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.

Talking about workplace bullying and disability at the Jacobus tenBroek Disability Law Symposium

Dr. Jacobus tenBroek (www.nfb.org)

Last week I had the privilege of discussing workplace bullying and disability at the Jacobus tenBroek Disability Law Symposium, an annual conference sponsored by the National Federation of the Blind (NFB) in Baltimore, Maryland. Based on the feedback I received, I believe that my presentation offered a useful contribution to the conference. (More on that below.) In addition, for me personally, the biggest gift of the conference was being able to experience it and learn from other participants.

Perspective-changing

I’ve been to dozens of academic and professional conferences during my career, but this was my first attendance at a larger event where people living with various disabilities — in this case, especially those with visual impairments — formed such a significant share of fellow participants. One might claim that I was long overdue in this regard, and I would strongly agree. It is a perspective-changing thing to spend an extended period of time in such a setting, to be in a very different kind of normalcy. Many of the lawyers, advocates, and scholars are living with disabilities that happen to be among the focal points of their work. Substantively, this diverse mix positively influenced the quality, depth, and authenticity of exchanges on topics that are sometimes understood and treated superficially. 

Conferences, symposia, and workshops have their own cultures or vibes. Some are friendly, while others are stuffy. Some help to foster a sense of community and inclusion, while others feature preening and posturing. The tenBroek event is a community builder, where people hatch ideas, teach and mentor one another, and renew friendships and acquaintances. It’s not as if everything is all hearts-and-flowers consensus. Among other things, there were earnest discussions about the need for more racial diversity among speakers and attendees. Nevertheless, the tenBroek symposium serves as an important annual gathering spot for folks interested in legal and policy issues concerning disabilities of all types.

Workplace bullying and disability

The session on bullying, harassment, and the civil rights of persons with disabilities was the final panel of the conference, and I happened to be the last speaker on it. This gave me an opportunity to explain the basics of what we know about bullying and mobbing at work, then go into why existing employment protections have proven inadequate to provide relief to so many abused workers. I then discussed the Healthy Workplace Bill and why it’s needed.

Although we have long understood that work abuse can cause mental disabilities or exacerbate current ones, we know a lot less about the experiences of those with physical disabilities and workplace bullying. During my remarks, I said that we would benefit greatly by learning more about that.

I also put in plugs for two organizations whose overall missions are very consistent with the work being done by folks at the conference, the International Society for Therapeutic Jurisprudence (link here) and Human Dignity and Humiliation Studies (link here), both of which I’ve mentioned frequently on this blog. (In fact, it was my connection with Prof. Michael Perlin, a mental health law expert who is active in both of these communities and serves on the NFB board, that led to my invitation.)

About Jacobus tenBroek

I also learned a little bit about Dr. Jacobus tenBroek , the NFB’s founder and a remarkable individual. The NFB’s Lou Ann Blake, in a 2006 biographical profile about tenBroek (link here), wrote the following:

Most Federationists know that Dr. Jacobus tenBroek founded the National Federation of the Blind in 1940. However, today in 2006, thirty-eight years after his death from cancer on March 27, 1968, the majority of Federationists may not be aware that Dr. tenBroek was also a constitutional law scholar, a civil rights activist, a leader in the reform of social welfare, and a distinguished national and international humanitarian. From his days as a law student until his death, Dr. tenBroek produced thousands of written documents, including letters, speeches, law review articles, and books.

Wow, what a powerhouse. No wonder his spirit helps to drive this conference.

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