Scholarship Update

WritingRobert Prentice, whose excellent online resource, Ethics Unwrapped, we have profiled here many times, is one of the leading thinkers and writers on the pedagogy of behavioral ethics.  His newest article, co-written by Minette Drumwright and Cara Biasucci, is entitled Behavioral Ethics and Teaching Ethical Decision Making.  The published version is available behind a pay wall here.  A downloadable draft version is available here.   Highly recommended!

The First (Annual?) BLE Film Festival

Verite_student_film_festival_color.psd_2To my delight, this year has turned into a festival of sorts for a wonderful set of new films about social psychology, behavioral science and ethics.  As we’ve discussed previously, Dan Ariely’s new film, (Dis)honesty: The Truth About Lies, has been released to favorable reviews (e.g., here and here).

In addition, an amazing actor, Billy Crudup (find and watch Jesus’ Son if you haven’t), is starring as Philip Zimbardo in the soon-to-be released film version of the Stanford Prison Experiment. Here’s a fascinating interview with Dr. Zimbardo about the film and his work.

Last, but certainly not least, Stanley Milgram’s famous experiments and life story have come to the silver screen in Experimenter, which premiered at the Sundance Film Festival in January (a trailer for the movie is here; review here) and is on the film festival circuit. It stars the wonderful Peter Sarsgaard as Milgram (I’ve been a big Sarsgaard fan since his recurring role on The Killing) and Winona Ryder as Milgram’s wife. When the film will be released for general viewing, I do not know – soon, I hope! (stay tuned for updates on Twitter: #experimenter).

Update 07/17/15:  MSNBC’s interview with Billy Crudup about the Stanford Prison Experiment is here.

Update: 07/27/15:  And now one more film  . . .  As the New York Times reported this weekend, the Kitty Genovese case — which has generated so much publicity over the last fifty years (and controversy about how it was reported) and made the Bystander Effect a household name — is the subject of a new film, entitled 37Here is the trailer. Stay tuned.

Teaching Confidentiality . . . and Confirmation Bias

confidentialityWhen I teach confidentiality in my legal ethics class, I start by surveying my students – all in their second year of law school – on their views about the importance of confidentiality as a lawyering value. The responses each year have been largely uniform, with the students ranking the need to preserve confidential information at or near 9 out of 10 – in other words, my students start our discussion with an expectation that client confidentiality is well worth protecting.

Why this survey? Because I want the students to have some sense of how their preconceptions will impact our subsequent discussions, including their views on how, as lawyers, they might exercise their discretion to make permissible disclosures under Model Rule 1.6(b). For example, I want my students to have some sense of how their predispositions on confidentiality might influence their decision under MR 1.6(b)(1) on whether disclosure would prevent “reasonably certain death or serious bodily harm,” or under MR 1.6(b)(2) and (3) on whether a lawyer’s services have been used to cause “substantial injury to the financial interests or property of another.”

To drive the point home, we discuss the psychology of confirmation bias, a ubiquitous phenomenon that reveals the tendency we all possess to seek out, interpret and remember information in a manner that is consistent with our preexisting views.  In previous years, I have introduced the power of confirmatory reasoning by asking my students to participate in a variation of the  Card Selection Task, one of the famous experiments designed by Peter Wason to demonstrate confirmation bias. More recently, however, I have found another experiment, also designed by Wason, that I think is even more powerful.  For those unfamiliar with this experiment, known as the “2, 4, 6 Task,” it was profiled on the front page of yesterday’s New York Times in an article describing the pernicious influence of confirmation bias in spheres such as governmental policy and corporate decision-making.  For those who have not read it, I encourage you to do so.  If nothing else, it’s a lot of fun (for those looking for other ways to teach this material, you might find this video helpful as well). Enjoy!

ABA Conference on Professional Responsibility


For those attending the ABA’s National Conference on Professional Responsibility in Denver later this week, please join us for a panel discussion on Behavioral Legal Ethics (program here).  I am participating, along with Molly Wilson, Robert Prentice and Catherine O’GradyAndy Perlman, who was recently announced as the next Dean of Suffolk Law School, will moderate.  I will report back on the event next week.

Update:  06/4/15:  The ABA conference was excellent. Our BLE presentation followed a wonderful discussion, led by Stephen Pepper and John Barrett, and moderated by Lisa Lerman, about lawyer decision-making in Nazi Germany, which has been described as “the worst legal ethics disaster in the Western world.” Our panel on behavioral ethics focused on a more modern case of legal ethics, the Dewey & LeBoeuf debacle, which again is in the news because of the current trial of the firm’s leadership.  I understand that the materials from our presentation will soon be posted by the ABA, which I will link to here when available.  Thanks to all who helped make the panel discussion so enjoyable.

Update:  06/9/15:  The ABA has now posted the materials from the session here.

Podcast on BLE

NELRI enjoyed discussing growing interest in Behavioral Legal Ethics, including some of my scholarship in the area and how I teach this material to my students, with the editors of the New England Law Review.  Here is the podcast.

Programming Note, #4

Highly recommended for educators and students of behavioral legal ethics (look also for further upcoming podcasts, which will focus on other aspects of behavioral science).

In Memoriam: Monroe Freedman


Monroe Freedman, former dean and professor at Hofstra Law School, passed away yesterday.  A legendary figure in legal ethics, he will be missed by so many for his warmth, generosity and tremendous and highly influential body of work.  In the field of what we now call behavioral legal ethics, Monroe may have been the first scholar to use behavioral insights from psychology with regard to lawyers’ ethics (see Lawyers’ Ethics in an Adversary System (Ch. 6, Counseling the Client: Refreshing Recollection or Prompting Perjury?) (1975)).  His subsequent book, Understanding Legal Ethics, continued to make use of the insights from psychology and related fields (See pp. 202-216 (preparing witnesses), 139-140 (confidentiality), 40-41 (adversary system) (3d ed. 2004)).

He will be deeply missed.

[update: LEF readers have been leaving their thoughts about Monroe here].

[Update #2:  Prof. Abbe Smith‘s moving remarks about Monroe are here]

[Update #3:  Hofstra Law School has re-named the Institute for the Study of Legal Ethics in Monroe’s memory.  Information here].