On being restlessly patient in advancing positive law and policy reforms

A piece in the current issue of the Economist, the venerable British news magazine, resurrects the tax policy positions of Henry George, an author and political economist who built a worldwide following during the last half of the 19th century:

ON A trip to New York in the late 1860s the journalist Henry George was puzzled. He found the rapidly growing city to be a place of unimaginable wealth. Yet it also contained deeper poverty than the less-developed West Coast. How could this be? George had an epiphany. Too much of the wealth of New York was being extracted by landowners, who did nothing to contribute to the development of the city, but could extract its riches via rents. The problem could be solved by a tax on land values.

George’s subsequent masterpiece, “Progress and Poverty”, sold more copies in America in the 1890s than any other book except the Bible. It spawned campaigns for land-value taxation around the world. It also inspired a board game, “The Landlord’s Game”, a precursor to “Monopoly”. The game was designed to show how property markets naturally tend towards monopolies in which one player can extract all the rent.

Examining the current state of tax policy, the Economist concludes that a stronger reliance on land taxation might be a good thing.

I’ve been interested in George’s land tax proposal ever since reading about it in Robert L. Heilbroner’s The Worldly Philosophers: The Lives, Times, and Ideas of the Great Economic Thinkers back in college. (Heilbroner has passed, but his book — last revised in 1999 — remains, in my opinion, the most engaging, lucid, and accessible introduction to the history of economic thought.) As the Economist piece suggests, Henry George’s ideas would fade into obscurity. They have been kept alive by a small but determined band of economists and social activists, coalescing around a group of independent Henry George Schools dedicated to providing continuing education and scholarship about Georgist economic principles.

But the purpose of this writeup isn’t to convince you, dear readers, on the merits of Henry George’s taxation theories, even though I believe they are worth considering. Rather, it’s to point out that important ideas about law reform and public policy sometimes take years to percolate, in some cases beyond our lifespans.

With that reality in mind, I have favored an attitude of restless patience in advocating for desired changes in law and public policy. In this context I think of restless as being dissatisfied with the status quo. I think of patience as being smart, persistent, and determined. I have had to give myself this advice on at least three areas of law and policy reform very dear to me:

Workplace bullying and law reform

Some 20 years ago, my first law review article on the legal and public policy implications of workplace bullying was accepted for publication, and it would be published by the Georgetown Law Journal in 2000. Among other things, it surveyed potential legal protections for targets of workplace bullying under American employment law and found them wholly wanting. I proposed the parameters of what would become a model workplace anti-bullying statute, eventually dubbed the Healthy Workplace Bill (HWB).

For some 15 years, the HWB has been the main template for law reform efforts concerning workplace bullying, but it has not yet been enacted in its full form by any of the 30 states in which it has been introduced. However, in recent years we have had some breakthroughs, with several states and municipalities enacting workplace bullying legislation and ordinances drawing heavily from the language of the HWB. Unions and government entities are also using the HWB language to collectively bargain over workplace bullying concerns and to design internal agency employment policies.

Here in Massachusetts, we continue to work hard to make our state the first one to enact comprehensive workplace anti-bullying legislation. The HWB once again stalled in the just-completed session of the MA legislature, despite dozens of legislative sponsors and a positive report out of the committee overseeing it.

Advocacy work can be frustrating and sometimes demoralizing. But if you believe deeply in something, you keep going. Maybe you change strategies or tactics, but you persevere. And come January, when the 2019-20 session of the legislature begins, we’ll be ready to go.

Like an unwanted holiday fruitcake

In 2002, the Connecticut Law Review published my article on the legal status of interns, in which I looked at the burgeoning intern economy and concluded that many unpaid internships are running afoul of minimum wage laws. I hoped that the piece would quickly stir some interest, but for many years it pretty much sat there, like an unwanted holiday fruitcake.

This changed when a writer named Ross Perlin authored the first comprehensive examination of the explosive growth of unpaid internships, Intern Nation (2011). He referenced my 2002 law review article and called it “the single best source of information for American internships and the law.” (Thank you again, Ross, for pulling my article out of depths of Westlaw and Lexis-Nexis.) One of Ross’s readers, Eric Glatt, chased down my law review article and concluded that his unpaid internship with Fox Searchlight Pictures just might’ve been in violation of minimum wage laws. Eric would become the lead plaintiff in a federal lawsuit seeking compensation for that internship.

To our disappointment, federal courts have not been friendly to these claims brought by unpaid interns, adopting a very pro-employer legal test for exempting interns from the minimum wage. However, the door has not been completely closed on such legal claims, and the considerable publicity generated by these cases has caused many employers to opt to pay their interns. The debate over unpaid internships, once a non-existent one, continues to reverberate in business and legislative settings.

Should law be therapeutic?

In recent years I’ve allied myself with a much broader effort to change our laws and public policies, an interdisciplinary field of philosophy and practice called therapeutic jurisprudence. “TJ,” as it is commonly referred to, examines the therapeutic and anti-therapeutic properties of laws, legal systems, and legal institutions. It favors outcomes in legal disputes and transactions that advance human dignity and psychological well-being.

TJ was founded in 1987 by two American law professors, David Wexler and Bruce Winick. Although it has grown into a global network of scholars, lawyers, judges, and other practitioners, it has yet to enjoy a mainstream presence in legal academe or legal practice. To help expand TJ’s influence, we have formed a new non-profit, membership organization, the International Society for Therapeutic Jurisprudence. I am serving as the ISTJ’s first board chair.

I hope that someday, sooner than later, TJ will be recognized as a primary framing theory for the design and application of the law. In the meantime, I find myself inspired by that cohort of scholars, educators, and activists who have kept the flame of Henry George’s ideas alive for so many years.

On being restlessly patient

Indeed, I’d like to think that the spirit of Henry George is pleased to see his ideas about land taxation knocking on the door of greater mainstream reception. Of course, in my case I’d rather not wait for some 130 years to see workplace bullying laws widely enacted, interns being paid for their work, and our laws and public policies embracing human dignity and psychological well-being. But at least it’s a reminder that good ideas can’t be suppressed forever.

As I find myself urging upon those who are understandably frustrated with the pace of social progress and justice, we cannot control outcomes, we can only try to influence them. This is an especially important reality for the times in which we live. Buoyed by a spirit of restless patience, our job is to dig in, plant the seeds for positive change, and take part in moving our society toward something better.

***

You may freely download my law review articles on workplace bullying, intern rights, and therapeutic jurisprudence from my Social Science Research Network page. At the risk of being immodest, I have been told by many folks who are not lawyers or academics that they are very readable and accessible, which I consider to be a supreme compliment.

Forthcoming article: “On Anger, Shock, Fear, and Trauma: Therapeutic Jurisprudence as a Response to Dignity Denials in Public Policy”

Dear readers, later this year the International Journal of Law and Psychiatry, the peer-reviewed journal of the International Academy of Law and Mental Health, will publish my article, “On Anger, Shock, Fear, and Trauma: Therapeutic Jurisprudence as a Response to Dignity Denials in Public Policy.” Here’s the 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.

If you’d like to read my author’s draft of the piece in a pdf, you may download it without charge from my Social Science Research Network page, here.

The Trump effect on productivity (including mine)

I read the news today, oh boy

My confession: I am so appalled and alarmed by Donald Trump that he has had a negative impact on my productivity. It positively galls me to admit that this man has had that kind of influence on me for over two years.

Yesterday was a prime example. The momentous story that Trump chose to credit Russian president Vladimir Putin’s insistence that Russia did not interfere with the 2016 U.S. election, while largely dismissing the opposite findings of American law enforcement and intelligence agencies, left me stunned. It also meant that a chunk of my day was lost to reading news analyses online.

When it comes to Trump and my productivity, perhaps it doesn’t help that for nearly 20 years, I’ve steeped myself in research and commentary about bullying, dishonesty, bigotry, and abuses of power, especially in work settings. Some readers disagree with my assessment of Trump — every time I post negatively about him, I lose a few subscribers — but during the 30-plus years that I’ve been aware of him, I have yet to see any real evidence of empathy or kindness from the man. He is the consummate workplace bully and dishonest boss, and he is a master of gaslighting behaviors.

However, it’s not only a reaction to a certain personality type that pushes my buttons. I am alarmed by what I see transpiring on the national and international stages in terms of public policy. And I am deeply concerned that Trump is displaying a form of so-called leadership that others are emulating. He has been president for less than two years, yet I believe it will take at least a decade for us to recover from this.

Direct hit

Sometimes the Trump effect on my productivity has been about as direct as it gets, namely, on the very work I do concerning workplace bullying, mobbing, and abuse.

Two summers ago, when Maureen Duffy and I were working on our co-edited book set, Workplace Bullying and Mobbing in the United States, the unfolding presidential campaign was so distressing and distracting that I sometimes had trouble staying focused on the project. (How ironic is that!?)

In January 2017, I was still so dazed and reeling from the November election that it took me by surprise that it was time to reintroduce the anti-bullying Healthy Workplace Bill in the new session of the Massachusetts legislature. I did manage to pull myself out of my numbed state, but I was shaken that the election had such a profound impact on my psyche. (That won’t happen again.)

What to do?

Trump does what other deeply narcissistic, abusive types do so well. He sucks up our energy and attention in disproportionate amounts.

For those of us so affected, what are we to do? For starters, we need to be consciously aware of this impact. It means repeatedly reminding ourselves that many other important matters deserve our attention.

It can also mean taking the events of these times and turning them into lessons on how to change things for the better. For example, I’ll soon be sharing a draft of a law journal article that discusses how the Trump Administration’s policies and practices on immigration and health care have had especially traumatic effects on those directly affected by them. My longer range solution is that therapeutic jurisprudence — a school of philosophy and practice that embraces human dignity and psychologically healthy outcomes in the law — should be a framing perspective for making public policy.

Okay, I’m going to take a deep breath and publish this post. Then it’s back to other tasks, hopefully with fewer newsworthy distractions than yesterday. After all, bullies like it when others merely keep reacting to them. To advance human dignity in the face of contrary forces, we need to create our own agendas and pursue them.

Summer work is mostly about writing

My writing workspaces are not nearly as ornate! (Isabella Stewart Gardner Museum, Boston; photo by DY)

With spring semester final exams and papers graded, another academic summer begins. I understand that because I don’t teach in the summer, many folks assume that I have “summers off.” In reality, much of this time is devoted to writing. I deeply appreciate the opportunity to focus on serious scholarly projects. 

Among other things, I’m writing a new law review article about therapeutic jurisprudence, and it will complement my work as board chair of our new International Society for Therapeutic Jurisprudence. In this piece I’m attempting to make the case that American law should be framed by human dignity and psychological well-being. This article is a broad outgrowth of my longtime research and advocacy work on workplace bullying.

One of the biggest perks of working in this mode is that I’m not tied down to my office. I like to work at home or in the Boston Public Library. I’ve also been traveling a lot, and my laptop goes with me, typically joined by small piles of notes and article printouts. I can even get work done on airplanes, if the passenger seating space is sufficient. (For me, JetBlue is generally the best in that regard. By comparison, flying coach on an American Airlines 737 triggers claustrophobia and prompts even greater empathy for chickens confined to battery cages.)

Of course, long gone are the days when the summer seemed endless. It goes quickly, and soon another school year beckons. And in Boston, the seasons change, too. Before we know it, the leaves will be turning color as the cycle continues.

P.S. By the way, I just revised and beefed-up one of this blog’s most popular posts, “Gaslighting at work.” Especially because the term has entered our popular and civic culture more prominently in recent years, you may find it of interest.

The Boston Public Library is a pretty cool place to work. (Bates Hall reading room; photo by DY)

Therapeutic jurisprudence group on bullying, mobbing, and abuse across the lifespan

If you’ve been following this blog regularly, then you may know that I have been closely involved in the creation of the International Society for Therapeutic Jurisprudence, a global, non-profit learned organization dedicated to advancing therapeutic jurisprudence, “an interdisciplinary field of philosophy and practice that examines the therapeutic and anti-therapeutic properties of laws and public policies, legal and dispute resolution systems, and legal institutions.”

The ISTJ will be conducting many of its activities through Interest Groups organized around substantive topics of law and public policy. As part of that effort, I’ve joined with a small group of fellow members to form an Interest Group on Bullying, Mobbing, and Abuse Across the Lifespan. The group will examine and address these behaviors from an interdisciplinary perspective, emphasizing the intersection of psychological trauma and law & public policy. Here are among the group’s possible activities:

  • Creating and improving trauma-informed public education programs and workshops about bullying/mobbing/abuse in all settings;
  • Examining how we can support targets and victims in litigation, such as providing information to attorneys and planning expert witness testimony and analyses;
  • Examining different approaches to legislation and public policy, i.e., differences and commonalities in dealing with abusive behaviors across the spectrum; and,
  • Organizing writing projects, programs, etc.

I should note that this group will not be able to provide individual counseling, coaching, or legal advice for those who are experiencing any of these behaviors. However, in the future we may be able to develop resource listings like that on this blog for workplace bullying to guide those experiencing abusive mistreatment in other contexts.

If you are interested in becoming a member of this group, then you’ll first need to join the ISTJ (memberships run calendar year, Jan-Dec; $25 regular; free for currently enrolled students). After joining you’ll either want to indicate your interest in this topic of the TJ Forum page and/or e-mail me at dyamada@suffolk.edu.

On being responsibly bold (and other advice for legal activists)

The short version is here

At the recent therapeutic jurisprudence (TJ) workshop hosted by Professor Carol Zeiner and the St. Thomas University School of Law in Miami, Florida, I urged us all to be “responsibly bold” in our research and advocacy for legal and policy change. The term resonated with a number of workshop participants, and that response has prompted me to gather three clusters of advice for legal activists who are working toward the greater good.

The advice is based primarily on two ongoing points of significant involvement:

  1. engaging in scholarship, legislative drafting and advocacy, and public education on workplace bullying and mobbing; and
  2. researching and proposing law reform measures concerning the widespread practice of unpaid internships.

It is also informed by the promise of our new organization, the International Society for Therapeutic Jurisprudence, which is happily recruiting founding members.

I hope these thoughts will inspire your ideas about how to be effective in a legal activist mode.

Be responsibly bold

If it matters, write about it, even if no one else is doing so.

Take smart chances to be among the first, if not the first, to address a topic worthy of attention.

Furthermore, instead of merely analyzing the problem and providing broad parameters for a legal or policy response, offer a proposed solution with enough detail to lead the discussion on what should be done.

This may include outlining the specific strategy of a legal challenge or drafting a proposed statute or regulation.

As a law professor, I’ve noticed that some legal scholars opt not to take their analysis and writing this far. They critique a set of judicial decisions or an existing statute thoroughly and relentlessly, leaving nothing to pick over but the bones. However, when it comes to proposing a solution, they lapse into safer generalities. Rather than proposing, for example, specific language for a statutory amendment or a revised regulation, they morph into Impressionism and finish with erudite yet vague conclusions.

Instead, when recommending new or reformed public policies, the potential agenda setting approach is to write up the proposed statute or regulation. Greater specificity fuels the possibility of playing a more significant role in changing law and policy.

Be willing to write the first draft

Many years ago, Anthony Amsterdam, a New York University law professor and legendary civil rights lawyer, suggested to a group of new law instructors that if we are willing to be “the bottom name on the brief,” i.e., the person who does the grunt-level research and drafting even though others with fancier titles are listed above us on the pleading, then we can potentially enjoy the greatest influence over the shaping of the document.

Tony’s maxim taught me a lesson, and it has been verified in virtually every legal, political, policy, and bureaucratic setting to which I have been privy: Do a really good job on a first draft and the words continue to influence others. They may even help to frame a broader legal or policy agenda.

A quality brief or proposed statute becomes the template for others to borrow or tweak. A well-crafted set of talking points appears time and again in the remarks and speeches of others. A neatly worded resolution cuts through a lot of excess verbiage and half-baked thoughts in a meeting or conference.

Seek out partnerships and affiliations

A change agent should seek out partnerships and affiliations with organizations, associations, and agencies that can help to advance one’s work. Connections with the right groups and individuals can lead to a sharing of ideas, access, and resources. They can open doors that may appear to be closed when working solely on our own.

Considerations of partnerships and associations overlap strongly with writer and entrepreneur Seth Godin’s suggestion that in order to achieve desired change, those of like interests and commitments should gather together in “tribes.”

In his 2008 book, Tribes: We Need You to Lead Us, Godin defines a tribe as “a group of people connected to one another, connected to a leader, and connected to an idea,” adding that the two things a group needs to operate as tribe are “a shared interest and a way to communicate.”

He has further identified three types of tribes and individuals:

  • Those who react,
  • those who respond, and
  • those who initiate.

He suggests that while many simply react or respond to external stimuli, genuine leaders initiate by recognizing needs and opportunities that others miss, thereby playing a greater part in shaping change.

I am currently serving as the first board chairperson of the International Society for Therapeutic Jurisprudence. For those interested in law reform that embraces well-being and psychological health, I hope that the ISTJ will serve as a nurturing, inclusive, and forward-looking tribe. One look at the overall state of the world should tell us that a TJ perspective is badly needed when it comes to informing our laws, legal systems, and legal institutions.

We’ve got our work cut out for us. Let us be among the change agents who offer responsibly bold and humane solutions that advance human dignity.

***

A slightly different version of this post was published by the Therapeutic Jurisprudence in the Mainstream blog. Portions of the above are adapted from my 2016 article, “Intellectual Activism and the Practice of Public Interest Law” (Southern California Review of Law and Social Justice), which can be downloaded here without charge.  It’s a very personal piece, filled with reflections on my experiences with law reform activities. The roles of TJ and interdisciplinary connections figure prominently in my commentary.

Therapeutic jurisprudence: Human dignity as a prime objective for law and public policy

(photo: Kathy Cerminara)

I just returned to Boston from a two-day workshop on therapeutic jurisprudence (TJ), hosted by Professor Carol Zeiner at the St. Thomas University School of Law in Miami. Like every other TJ gathering that I’ve been a part of, it was a compelling blend of thought-provoking ideas and information, matched by a wonderful sense of fellowship.

My talk was titled “TJ as a Framing Response to Anger, Shock & Trauma in Public Policy Making.” In addition to quickly surveying some of the disturbing developments in U.S. immigration and health care policy, I discussed the challenges of advocating for workplace anti-bullying legislation. The key message of my talk was that we must, without apology, frame debates about law reform and the making of legislation in terms of individual and collective dignity.

If you’d like a sampling of what TJ scholars and practitioners are working on, here’s the Day 1 agenda of our workshop:

And here’s the Day 2 agenda:

As some subscribers to this blog are aware, I am serving as board chair of the new, non-profit International Society for Therapeutic Jurisprudence (ISTJ). For many years, the TJ community existed as an informal, interdisciplinary network of scholars, practitioners, judges, and students. With the formation of the ISTJ, we are consolidating a variety of TJ initiatives and building a global organization for this growing community. Membership is open to all who share the goals of the ISTJ (not just lawyers!), with regular 2018 membership dues set at $25 USD and student memberships for free.

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