Facing the Maelstrom, Part II

America’s Bullying Persona

As I look at the concerns identified in Part I of this essay, so many of them — authoritarian domination, rage and anger, cruelty, gaslighting, and cancel culture — capture the dynamics of bullying and the tools of bullies. This is both personally distressing and professionally relevant.

Since 1998, a considerable portion of my attention as a law professor and legal scholar has been devoted to understanding bullying, mobbing, and harassment in the workplace. This focus has produced a considerable body of scholarship about the legal and policy implications of workplace bullying, including the first comprehensive analysis of the need for new legal protections against severe bullying at work (Georgetown Law Journal, 2000). Furthermore, partnering with Drs. Gary and Ruth Namie of the Workplace Bullying Institute, I have drafted, and advocated for, legal responses to this destructive form of interpersonal abuse. (You may read about all of these developments on my Minding the Workplace blog, here.)

For the longest time, I regarded this work as a niche specialization, a deep dive typical of what academics do via their research and publishing. But in recent years, it has become evident that understanding bullying and related behaviors at work helps us to interpret current trends in society at large, especially civic and political life in the U.S. Now, with the return of Donald Trump to the White House, America has officially become a bullying nation. We truly have entered our Dark Age.

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It is tempting to obsess over our deterioration toward this challenging place. Doomscrolling is, after all, easy. However, ruminating over these disturbing trends will not put us in a healthier, more sustainable direction. (Believe me, I’ve tried.) We also need to foster an appealing vision for our lives and communities, as well as offer ideas for how to reach those places via our legal and political systems.

To the extent that I can contribute to this broader conversation, my thoughts are a work-in-progress. As such, what follows is a bit more personal in tone, reflecting a lot of personal and intellectual influences that have brought me to this point, as well as some plain thinking out loud. Here goes….

Notes Toward a Better Society

Envisioning the “Good Life”

What kind of lives do we want to live — in America and elsewhere? In search of this vision, I first turn to the work of a late dear friend, John Ohliger (1926-2004), a pioneering, iconoclastic adult educator, writer, and activist. I will then again reference the writings of Bertram Gross, whose important work is discussed Part I.

John Ohliger

John Ohliger enjoyed a rich life steeped in the world of adult education. At one point in his career, it appeared he might settle down into a more conventional path, having earned tenure as a professor at Ohio State University. Ever rebellious and restless, however, he would voluntarily resign his faculty position in the early 1970s and relocate to Madison, Wisconsin. There he would fashion a self-styled role as an independent intellectual and activist. (For more about Ohliger’s life and work, see this book chapter that I wrote about his unique public intellectual role.)

By the early 1980s, Ohliger anticipated deeper conflicts over wealth and material goods in American society. In a 1982 essay, “Adult Education in a World of Excessive Riches/Excessive Poverty,” he drew upon the work of fellow adult educator Phyllis Cunningham and futurist Michael Marien to sketch out two competing narratives about how we might live.

The first narrative envisioned a “technological, top-down, service society” that defined “the ‘good life’ as affluence and leisure with high-tech big technology solving problems which lead to mastery of the environment.”

The second, more desirable narrative envisioned the “good life” as embracing “useful work, peace, self-fulfillment, and appropriate technology leading to harmony with the environment.” He further elaborated upon the latter:

My picture is of a future where we live more relaxed and more modest lives with an abundance of unmeasurable and infinitely available non-material (or better, trans-material) resources. All the travail and pressure we’re going through right now may be paving the way for that future. This future could be one where we will have a choice of “goodies”; not ones requiring scarce energy, minerals, or dollars; or ones permitting some people to get rich while others go hungry, but choices that we create with our own hearts and heads and hands among people we know and care for.

Bertram Gross

Bertram Gross, whose work is discussed in Part I, offered similarly contrasting visions of how American society might unfold. In the preface to the 1982 edition of Friendly Fascism, he briefly explained them:

The first is a slow and powerful drift toward greater concentration of power and wealth in a repressive Big Business-Big Government partnership. . . .

…The other is a slower and less powerful tendency for individuals and groups to seek greater participation in decisions affecting themselves and others. . . . It is embodied in larger values of community, sharing, cooperation, service to others and basic morality as contrasted with crass materialism and dog-eat-dog competition.

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Both Ohliger and Gross were taking aim at a kind of technocratic, top-down society now in vogue today. It is disheartening to see how on-target they were in anticipating our current state of affairs.

Nevertheless, their idealized visions of what life in America (and elsewhere) could look like remain enormously appealing. To get there, we must substantially reverse course, rejecting authoritarians like Trump and heartless high-tech moguls like Elon Musk. I don’t believe, however, that we must necessarily pursue a radically opposite extreme. Some five years ago, with the pandemic bearing down on our lives, I wrote this about the kind of changes we need:

OK, I confess, as far as pathways to change go, I’m not a revolutionary or a creative destruction guy. I believe in a mixed economy with strong private, public, and non-profit sectors, offering opportunities for enterprise, efficient public services, humane social safety nets, and protections in the form of checks & balances. My politics are that of an old-fashioned liberal, holding that government can and should serve the common good. My views on law and public policy are critically informed by the school of therapeutic jurisprudence, which calls upon us to view our laws and legal institutions through a lens of human dignity and societal well-being.

That said, I do believe that our world needs some dramatic changes. Indeed, for over a decade, I’ve…urge[d] that our workplace laws and policies should advance human dignity. Our obsessions with short-term profits and excesses of managerial power have led to a lot of innocent people paying the price. More broadly, the coronavirus pandemic has highlighted serious, pre-existing fault lines in our health care and economic systems. Global climate change is an existential threat to humanity.

As an overlay to what I wrote in 2020, I would strongly add a psychologized understanding of these core perspectives. Some examples include:

Therapeutic jurisprudence

Therapeutic jurisprudence (“TJ”) is a multidisciplinary field of legal theory and practice that examines the therapeutic and anti-therapeutic properties of law, legal procedures, and legal institutions. TJ promotes the use and design of law to affirm human dignity and achieve psychologically healthy outcomes in legal proceedings. It is the most comprehensive framework for applying psychological insights to law and policy.

[My note: In 2017, I served as the founding board chair of the International Society for Therapeutic Jurisprudence, a non-profit, learned society established to support TJ-related public education, scholarly work, and best practices in the legal profession and judiciary. For a thorough explanation of therapeutic jurisprudence, see my 2021 law review article, published in the University of Miami Law Review.]

Trauma-informed law and policy

The practice of law, the administration of justice, and the processes of enacting laws would all benefit by being more trauma-informed. Fortunately, insights about trauma and traumatization are entering the mainstream of the legal profession, especially via trauma-informed legal practice, problem-solving courts, and restorative justice approaches. All of these threads are, by the way, completely compatible with therapeutic jurisprudence.

[My note: I have written about trauma-informed law and policy here. I soon will be publishing a law review article on the design of trauma-informed legislation, using as an example a new model statute I have written, the Workplace Bullying Accountability Act.]

Positive psychology and public policy

Positive psychology, the Penguin Dictionary of Psychology (2009) tells us, is an “approach to clinical, social and personality issues that emphasizes mental health and well-being rather than pathology.” I can think of no better example of applying positive psychology to public policy making than the 2019 “Wellbeing Budget” adopted by New Zealand’s coalition government, led by prime minister Jacinda Ardern. The budget expressly asserted that the well‑being of its citizens should be the nation’s top policy priority, identifying categories such as mental health, childhood well-being, indigenous populations, and economic transformation.

[My note: To read more about the New Zealand Wellbeing Budget, see my 2020 essay, “Should Public Policy Center on Society’s Well-Being?“]

Understanding political pathologies

The 2024 U.S. election had major psychological dimensions, especially concerning Donald Trump. Thankfully, fresh, smart voices entered the public intellectual sphere to enlighten us. To wit:

• Psychiatrist Bandy X. Lee took the lead in raising alarms about how Trump’s mental state posed a significant danger to the nation and the world.
• Historian Ruth Ben-Ghiat shed light on Trump’s tactics by drawing on her grasp of authoritarian leaders such as Mussolini and Hitler conducted themselves in office.
• Cult psychology expert Steven Hassan explained how Trump’s hold over a wide swath of voters resembled cult control.
• Historian Heather Cox Richardson provided a deep, historically contextualized understanding for the 2024 election, helping us to distinguish between normal and abnormal political developments.
• Political writer Sarah Kendzior spotted the Trump contagion early, well before the 2016 election, demonstrating a sixth sense for anticipating his appeal to a large share of the electorate.

The grim importance of these wise perspectives continues, as Trump and other authoritarian leaders continue to exert and claim power over their respective nations. We are paying a terribly heavy price for the elevation to power of such damaged, raging individuals. In the U.S., the very rule of law is under attack by the Trump Administration, stoking enormous fear and anxiety. Against this backdrop, the insights of these experts and others will help to clarify our choices and decisions.

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As I see it, the evolution we need is fundamentally relational in nature, both between individuals and among groups. It is about how we relate to each other, our communities in general, and our systems of governance and law. In light of the ugly and hostile directions America and other nations are pursuing, reversing course and repairing the extraordinary damage will not be easy. But we certainly must give it a try. I hope that this blog, however modestly, can contribute to that effort and stoke the much-needed underlying conversations.