Traumatized Systems Theory: Accountability for Recurrent Systemic Harm.

• Author: Cunningham, E. Christi

CONTENTS INTRODUCTION I. RECURRENT SYSTEMIC HARM A. Defining Systems B. Examples of Recurrent Systemic Harm 1. Corporate Risk-Taking 2. Systemic Racism 3. Artificial Intelligence II. TRAUMA AND TRAUMA RESPONSE A. Trauma B. "Perpetrator" Trauma: Trauma to Those who Inflict Trauma C. Trauma Response D. Non-cognitive Trauma Response E. Repetition and Control: Spotlight on Trauma Symptoms 1. Symptoms Repetition: Recurrence and Relationship 2. Trauma Response is not Easily Controlled III. TRAUMATIZED SYSTEMS: TRIGGERED SYSTEMS IV. TRAUMATIZED SYSTEMS THEORY A. Accountability Gaps B. Control Paradigm C. Inverse Accountability V. REGULATION OF THE SYSTEMIC MIND A. Personification Revisited B. Conscious Systemic Cognition: Accountability for Conscious Organizational Thinking 1. Organizational Criminal Liability for Conscious Cognition 2. Corporate Civil Liability for Conscious Cognition C. Unconscious Systemic Cognition: Accountability for Unconscious Organizational Cognition VI. TRAUMATIZED SYSTEMS' TRANSFORMATION CONCLUSION INTRODUCTION

Eva Rowe's parents, James and Linda Rowe, were both killed by an explosion at a British Petroleum ("BP") refinery in Texas City, Texas in March 2005. (1) Thirteen other workers were killed, and 170 people were injured when an outdated piece of equipment overfilled with a highly flammable liquid and ignited. (2) Before the explosion, a 2003 external audit found a "checkbook mentality" at the refinery and that the infrastructure was "poor." (3)

Ms. Rowe testified before the U.S. House Education and Labor Committee that she believed that BP murdered her parents with its corporate culture of greed for profits and requested legislation that would increase safety inspections in order to protect workers from future accidents. (4) She ultimately settled her lawsuit against BP for an undisclosed amount after seeking 1.2 billion dollars in damages. In addition to monetary damages, Ms. Rowe's attorney said that the settlement included an agreement that BP would improve safety at the refinery and other facilities. (5)

Exactly a year later, in March 2006, more than 200,000 barrels of crude oil spilled from a pipeline at BP's Prudhoe Bay oil field in Alaska. (6) BP admitted that it "failed to adequately maintain its pipelines." (7) BP was later fined twenty-five million dollars, the largest per-barrel penalty ever imposed at that time. (8)

And then, almost exactly four years later, in April 2010, a BP oil exploration project at the Deepwater Horizon oil rig exploded, killing eleven workers and spilling four million barrels of oil over an eighty-seven-day period and resulting in the "largest spill of oil in the history of marine oil drilling operations." (9) Eventually, BP "paid $75 billion in clean-water fees, legal settlements, grants to Gulf Coast researchers and state governments." (10)

These are only some of the BP disasters. After each event, BP faced a variety of efforts to hold it accountable and control its activities. (11) Despite these efforts and despite changes in BP leadership, BP continued to engage in behavior that harms individuals, communities, itself, and the environment. (12)

Why are traditional remedies and forms of accountability sometimes ineffective in altering the behavior of organizations and groups of organizations that cause harm? This article hypothesizes that some systems are triggered, meaning that they have experienced trauma and act out in destructive or self-destructive, trauma-responsive ways. Many traditional forms of control--formal law, social and cultural pressures, and market forces--are insufficient to alter these systems and produce meaningful social change. Therefore, in addition to traditional forms of control, accountability for triggered systems must include trauma transforming prescriptions.

The goal is not to move harmful systems into a posture of victim; instead, the goal is to develop law and policy that produces lasting social change. Consideration of systemic trauma is not intended to excuse harmful behavior; instead, the goal is to find more effective ways of ending it. Trauma-informed systemic remedies should supplement, not replace, existing remedies. And trauma-informed remedies should be viewed as part of long-term strategies to address social injustice, rather than an immediate fix to some of the more urgent and existential challenges.

This article proposes a new legal theory--Traumatized Systems Theory. Traumatized Systems Theory considers the implications of social science research concerning organizational trauma for law and offers an area for further research, systems transformation--the identification and healing of triggered systems. Currently, two failed approaches to triggered systems perpetuate recurrent harm: 1) inverse accountability and 2) symptom-focused remedies. Inverse accountability means that individuals are held accountable for the outcomes of trauma caused by systems. When individuals suffer or are punished for responding to trauma that is inflicted, facilitated, funded, enabled or ignored by systems, accountability is inverse. The systems that cause the individual trauma are often not held accountable. Symptom-focused remedies are responses to systemic harm that address the harms or outcomes, without addressing the traumatic origins of the behavior. Often, symptom-focused remedies have exclusive or primary goals of controlling recurrent systemic harms or promoting efficiency. Instead, Traumatized Systems Theory hypothesizes that law and policy should facilitate trauma-informed systemic transformation as an equally important goal.

Part I sets the focus on recurrent systemic harm and provides examples from various areas of society. Part II discusses trauma and trauma response. Part III describes traumatized systems. Part IV presents Traumatized Systems Theory. Part V discusses precedent for considering the systemic mind when fashioning accountability. Finally, Part VI offers systems transformation as a supplemental approach to addressing triggered systems and recurrent systemic harm.

1. RECURRENT SYSTEMIC HARM

   A starting point for Traumatized Systems Theory is recurrent systemic harm. Recurrent systemic harm is systemic harm done to individuals and communities that persists despite efforts to remedy it. (13) When harm is recurrent, legislative, regulatory, judicial, or market penalties may have the effect of temporarily diminishing or stopping the harm. But the harm returns later. Because some harmful systemic behavior is trauma-driven, traditional remedies are insufficient to address it. Focusing on recurrent harm does not rule out the possibility that a single harmful act may be trauma responsive; however, initially, the central concern is recurrent systemic harm because it may be more indicative of systemic trauma response.

   1. Defining Systems

      The political, scholarly, and social critiques of dysfunctional institutions and systems are extensive. Many people have identified "the system," "the man," or "them" as the cause of social ills, both colloquially and in scholarship and practice. (14) These faulty institutions and systems may be public, like government agencies; (15) private, like media and entertainment entities; (16) hybrid, like the education system (17) and prison-industrial complex; (18) or social power structures, like patriarchy, white supremacy, imperialism, or capitalism. Scholars and practitioners have observed the many ways that institutions and systems inflict harm on individuals and communities. (19)

      Proposed solutions have focused both on changing the systems/institutions and on compensating or healing the individuals and communities that have been harmed.* (20) These are extremely important and necessary works.

      This article attempts to build on these works in three distinct ways--first, by focusing on a particular type of identifiable system, second by offering a new perspective on the problem of systemic oppression, and third by offering a supplemental form of accountability for oppressive systems.

      "System," for the purposes of this article, is a type of community. It refers to an organization or group of organizations. An organization is a community of individuals, and a system may be an organization or a community of organizations. It has structure and leadership. It often contains departments and factions. It communicates internally and externally, has rules that govern behavior, and its own culture.

      Organizational identity is an important factor in the law's approach to accountability for systems. In some cases, organizational identity is viewed vertically. The identity of the organization rests largely in its officers and top executives and their actions and decisions. This identity follows Frederick Winslow Taylor's theory of scientific management, which allocated responsibility for thinking and planning to managers while workers implemented these goals through their labor. (21) As Max Weber observed, the hierarchical and assembly-line structure of classical organization theory had the effect of attempting to control workers physically and emotionally for the sake of production. (22)

      Another view of organizational identity is horizontal, following theories of more democratized workplaces. "Social connection, interaction, and reciprocity lies at the heart of workplace social capital and is reflected in trust between and among employees and management, shared workplace values, norms of cooperation and reciprocity, esprit de corps, and what some organizational behavior theorists call 'organizational citizenship behavior.'" (23)

      A horizontal perception of organizational identity means that responsibility and decisionmaking is spread more broadly throughout the organization. More planning occurs at the unit level and information may be more compartmentalized.

      A system may also be a group of organizations that share a common or related purpose. General Systems Theory suggests that it...