New Fellowship: U Chicago, Behavioral Law & Economics

Brian Leiter’s Law School Reports blog reports the new fellowship, which looks fantastic!

Here’s the announcement from Professor Jonathan Masur:

The Wachtell Fellowship in Behavioral Law & Economics is designed for aspiring legal academics with research or teaching interests in behavioral law & economics.  Fellows will have substantial time and resources (including research funding) to pursue their own research.  In addition, Fellows will have the opportunity to teach seminars of their choosing related to behavioral law & economics, present papers at faculty workshops, and participate in conferences.  The Fellowship will run for one year, with an option to renew for a second year.  We are currently accepting applications for fellowships covering the 2016-17 academic year, and we anticipate having one or more openings in subsequent years as well.  Any candidates who are interested in the Fellowship or would like more information are very welcome to email me at jmasur@uchicago.edu.

Scholarship Update: Bounded Ethicality and Deliberative Reasoning

bar-ilan

Recent research has added interesting dimensions to important components of behavioral legal ethics. For example, researchers from Bar-Ilan University recently sought to determine whether certain types of conflicts of interest can be reduced through deliberative forms of reasoning – such as making people explicitly consider the costs of succumbing to the conflict or appealing to their sense of morality about the conflict. See Yuvel Feldman & Eliran Halali, Can We Regulate ‘Good’ People in Subtle Conflicts of Interest Situations, available at: http://ssrn.com/abstract=2536575.

According to the results, “subtle” conflicts of interest produced by slight financial incentives can be reduced through these types of explicit interventions. To be sure, this is only one study and its external validity needs to be assessed. Yet, if its findings can be replicated, especially in the types of situations where lawyers face real world conflicts, it suggests that the errors produced by bounded ethicality can be reduced (at least in some instances) by explicit forms of reasoning.

Here is the abstract provided by the study’s authors:

The growing recognition of the notion of ‘good people’ suggests that many ethically relevant behaviors that were previously assumed to be choice-based, conscious, and deliberate decisions, are in many cases the product of automatic/intuitive processes that prevent people from recognizing the wrongfulness of their behaviour – an idea dubbed by several leading scholars as an ethical blind spot. With the rise of the focus on good people in psychology and management, the lack of discussion on the implications of this growing literature to law and regulation is quite puzzling. The main question, this study will attempt to explore is what are the implications of this literature to legal policy making. We examined, experimentally, using two m-Turk studies, the efficacy of deterrence- and morality-based interventions in preventing people who are in subtle conflict of interest from favoring their self-interest over their professional integrity and to behave objectively. Results demonstrate that while the manipulated conflict was likely to “corrupt” people under intuitive/automatic mind-set (Experiment 1), explicit/deliberative mechanisms (both deterrence- and morality-based) had a much larger constraining effect overall on participants’ judgment than did implicit measures, with no differences between deterrence and morality (Experiment 2). The findings demonstrate how little is needed to create a risk to the integrity of individuals, but they also suggest that a modest explicit/deliberative intervention can easily remedy much of the wrongdoing.

 

New Scholarship: Giving Voice to Values in Legal Education

Vivien Holmes

A leading approach to ethics training in business schools comes from Professor Mary Gentile’s ground-breaking curriculum, Giving Voice to Values (GVV). What makes GVV so valuable is that it provides students with the specific skills they will need to act upon their values in situations where there are deep pressures to act unethically. Through a structured curriculum that draws on research findings from behavioral ethics, and that employs role plays, case studies, and simulations, students are taught how to develop what is described as a “moral muscle” — where, through practice and preparation, they pre-script and rehearse approaches to acting ethically in difficult situations. Many excellent resources are available to learn more about GVV, including Prof. Gentile’s book, Giving Voice to Values: How to Speak Your Mind When You Know What’s Right, and a series of videos about GVV narrated by Prof. Gentile and produced by Ethics Unwrapped.

Until recently, little had been written to adapt the GVV approach to the law school environment. That has now changed with an excellent article by Vivien Holmes of Australian National University College of Law (readers might be familiar with her earlier work on behavioral approaches to legal ethics). The just published article, entitled “Giving Voice to Values”: Enhancing Students Capacity to Copy with Ethical Challenges in Legal Practice,” describes ANU’s approach to teaching GVV to more than 600 law students a year (alas, it is behind a pay wall; hopefully, many readers will have access through their institutions).

Here is the abstract:

Legal ethics pedagogy does not often attend to the gap between principles and effective action. A pedagogy that does attend to this gap is ‘Giving Voice to Values’ (GVV). Developed by a US business academic, Mary Gentile, GVV focuses not on the normative questions of ’what is the right thing to do?’ but on the behavioural question ‘how do we get the right thing done?’ GVV has much to offer efforts to foster ethical behaviour in lawyers. In this article, I situate GVV within the behavioural ethics literature, which examines how and why people make the decisions they do in the ethical realm. I then turn to a discussion of the GVV curriculum and a case study of its application in legal education. I report preliminary results from research into the effectiveness of the GVV approach in postgraduate practical legal training. Finally, I encourage legal ethics teachers to experiment with GVV as a way of helping students develop skills for dealing constructively with ethical challenges in legal practice.

Highly recommended for anyone interested in teaching behavioral legal ethics!

The Role of Statistical Risk Prediction in Criminal Sentencing

This posting is a follow-up to my earlier post, A New Era in Criminal Sentencing and Incarceration, which described the growing unease over the high rates of incarceration in the U.S.  Prison overcrowding and the disparate impact of incarceration on certain populations and communities are topics with important ethical implications.  Mandatory minimums and “three strikes” sentencing schemes have been controversial since their inception.  In the face of pressure to address the large numbers of prisoners and mounting concern over the psychological, social, and financial consequences of long-term incarceration on individuals and communities, legislatures seem poised to act.   However, replacing current sentencing schemes is no easy task; both individualized and standardized approaches are fraught with difficulties.

For more than a decade—since before the time when I was his student at UVA Law—John Monahan has been developing risk assessment models to predict the future behavior of offenders.  This work, supported by the National Institutes of Health and MacArthur Foundation, has resulted in many articles (and a book).  Monahan’s latest article, with frequent coauthor, Jennifer Skeem, is titled Risk Assessment in Criminal Sentencing.  It can be found here:  Risk Assessment in Criminal Sentencing

The use of demographic and other information, along with statistics to determine future behavior is quite different from the more traditional “gut intuition” approach.  Monahan has noted that the two methods were described in Paul Meehl’s 1954 article, Clinical Versus Statistical Prediction (1954):

[…there are ]two ways of forecasting behavior. One, a formal method, uses an equation, a formula, a graph, or an actuarial table to arrive at a probability, or expected value, of some outcome; the other method relies on an informal, “in the head,” impressionistic, subjective conclusion, reached… by a human clinical judge.

[From John Monahan, Violence Risk Assessment: Scientific Validity and Evidentiary Admissibility, 57 Wash. & Lee L. Rev. 901 (2000):  Violence Risk Assessment  ]

The Federal Sentencing Guidelines (FSG) can be viewed as an attempt to strike a balance between the human decision-maker and the actuarial design. The guidelines are equitable in that they establish consistency across jurisdictions among like offenders, but they fail to take some of the more individualistic information (such as marital status and education level) into account.   Although the FSG address several problems with the judicial discretion model, critics have pointed out the guidelines achieve uniformity at the expense of fairness, in that factors indicating the appropriateness of a lighter sentence are ignored.

Consideration of factors that have been identified and demonstrated to be reliable predictors of future criminal behavior may strike the perfect balance.  On the one hand, this approach respects the individuality of each offender, because it takes into consideration that offender’s characteristics and background.  On the other hand, statistics-based risk assessment decisions would, at least in some senses, treat similarly situated defendants similarly.

Of course, predictions of future violence have been a central part of the civil commitment process for years.  Mental health professionals have been tasked with examining individuals and making assessments about future violence prediction.  The advantage of a pure data-driven approach is increased accuracy and cognitive errors.  In the criminal sentencing context, an actuarial approach lessens the impact of the personal preferences and biases of judge and jury.  Ultimately, the argument goes, risk prediction models are likely to result in better accuracy, and therefore more “correct” outcomes.

Although some factors related to risk of reoffending are common in sentencing schemes, of late, primary or wholesale reliance on statistical prediction of future risk has not been.  That may be changing.  Courts in a number of jurisdictions appear to be incorporating risk prediction into sentencing decisions.  At least one state is formally considering the move. Several months ago, news outlet fivethirtyeight reported that Pennsylvania would be the first state to experiment with a new sentencing practice, based upon risk assessment.  According to the report:

Pennsylvania is about to take a step most states have until now resisted for adult defendants: using risk assessment in sentencing itself. A state commission is putting the finishing touches on a plan that, if implemented as expected, could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely. Those deemed high risk could spend more time behind bars. [For more, see: Prison Reform Risk Assessment]

Risk assessment tools could help Pennsylvania effectively distinguish between the offenders who are most likely to pose a risk to society and those who would benefit from rehabilitation, substance abuse or other treatment, or a simple second chance.  The new method may allow a state to address prison overcrowding in an effective and humane way, and it could result in less crime down the road.  However, a bevy of ethical issues arise as well.  As fivethirtyeight notes,

The risk assessment trend is controversial. Critics have raised numerous questions: Is it fair to make decisions in an individual case based on what similar offenders have done in the past? Is it acceptable to use characteristics that might be associated with race or socioeconomic status, such as the criminal record of a person’s parents? And even if states can resolve such philosophical questions, there are also practical ones: What to do about unreliable data? Which of the many available tools — some of them licensed by for-profit companies — should policymakers choose?  Prison Reform Risk Assessment

As states and the federal government address the thorny issue of how to eliminate prison overcrowding and lower incarceration rates, actuarial data derived from social science will likely play a major role.  Time will tell whether these new risk assessment tools can be implemented in a way that is ethical and effective.

A New Era in Criminal Sentencing and Incarceration

On October 20, the New York Times reported that “more than 130 police chiefs, prosecutors and sheriffs — including some of the most prominent law enforcement officials in the country” have formed a group (Law Enforcement Leaders to Reduce Crime and Incarceration) to lobby for a wide-scale reduction in the  incarceration rate.  The group wants a range of alternatives to criminal arrest, and calls for a revision of the criminal code and an end to mandatory minimum prison sentences.  Criticism for get-tough-on-crime sentencing has been gaining momentum, and a growing number of investigative reporters, law-makers, judges, civic leaders, and academics have been asking hard questions about the ethics of practices like mandatory minimum laws and solitary confinement.

Some data-driven analyses seem to suggest that incarceration has a host of counter-productive and counter-intuitive effects. The U.S. Department of Health and Human Services points to the psychological effects of incarceration. DHHS Report  Incarceration is associated with lower earning potential and a loss of connection with family and friends. Safer Foundation Report

And there has been concern for some time regarding certain features of the Federal Sentencing Guidelines that have been perceived to disproportionately and needlessly affect minority populations. For example, before the Fair Sentencing Act (FSA) was passed in 2010, a defendant faced a minimum five-year sentence if convicted of possessing at least five grams of crack. Possession of 50 grams brought a minimum of 10 years. Conviction for possession of powder cocaine resulted in far milder consequences.

Meanwhile, the deterrent effect of harsh prison sentences is being called into question.  A study by David S. Lee, Justin McCrary examining the deterrent effects of prison sentences in young people under age 18 (when sentences are relatively short) and over 18 (when sentences are relatively harsher) detected little discernable difference in the level of deterrence, leading them to conclude that severity of sentencing had little effect on the decision to commit a crime in this population. Lee & McCrary Study

Slowly, steps taken to address these concerns are bearing fruit.  A 2015 U.S. Sentencing Commission study reported that over the three years following the passage of the Fair Sentencing Act, the number of offenders sentenced to a prison term for crack-cocaine offenses dropped by half.  The commission estimated the FSA will reduce the number of prisoners by 29,653 per year. Meanwhile, Congress appears poised to do more.  Conservative Republican Senator Charles E. Grassley (Iowa) and Democrat Senator Richard J. Durbin (Illinois) are two prominent politicians who are reaching across the aisle and spearheading attempts to lessen the effects of mandatory prison sentences, increase early release for prisoners, and create new programs to prepare offenders for life after prison.  Earlier this month, the Justice Department announced one of the largest releases of federal prisoners in history.  Approximately 6,000 inmates will be released (roughly one third will be deported).  Most of those released were convicted for nonviolent drug offenses.

We are at a turning point regarding sentencing offenders.  Much of the current activity involves undoing what has been done—revisiting the question of mandatory minimums, asking tough questions about legislation that imposes disproportionate burdens on minority populations, and releasing inmates whose freedom likely poses little threat to society.  These are positive steps in the right direction, but they leave questions about how we should rebuild our criminal justice system to create one that accomplishes our goals.  This project begins by clearly identifying our objectives.

Behavioral science has an enormous role to play in this project.  A major function of the criminal justice system is encouraging positive behavior and discouraging decisions that result in harm.  There is a wealth of data that can and should speak to the best way to accomplish these ends.  In the next several posts, I will take a look at several angles of the sentencing question to propose positive steps forward.

Online CLE — When Good Intentions Go Awry: An Introduction to Behavioral Ethics in a Legal Context

PLI If you are in need of continuing legal education credit (or are otherwise interested), I will be co-presenting an upcoming seminar on Behavioral Legal Ethics on November 10, 2105, with Professor Catherine Gage O’Grady of the James E. Rogers College of Law at the University of Arizona.  The program provider, Practising Law Institute, is a leader in the field of CLE education.

Here is the link and description for anyone who might be interested:

Description:

Ethics discussions often focus narrowly on the “bad apples” who deliberately choose to evade the rules of the profession. But as decades of empirical research demonstrate, unethical behavior frequently results from a broader set of variables that can cause even well-intentioned lawyers to act contrary to their own principles. Recently dubbed “Behavioral Legal Ethics,” this area of study draws lessons from behavioral science – including social psychology, behavioral economics and neuroscience – to explore the many subtle, often unconscious, factors that influence ethical decision-making. These include, for example:

  • The power of conformity and obedience to authority
  • The role of framing in ethical deliberation
  • The slippery slope toward misbehavior
  • The pernicious influence of overconfidence and self-serving biases

Please join Professor Catherine Gage O’Grady from the University of Arizona’s James E. Roger College of Law and Professor Tigran W. Eldred from New England Law | Boston for a one-hour briefing on Behavioral Legal Ethics. Topics to be explored will include how behavioral science challenges standard conceptions of legal ethics, as well as how a behavioral approach can address misconduct in diverse practice settings. This session will be of particular interest to newly admitted lawyers, who are uniquely vulnerable to the behavioral factors that contribute to unethical behavior and, conversely, are well-suited to overcome them.

(full disclosure: the program fee is $299, which is the tuition charged by PLI for the event)

Update,  11/20/15: I thoroughly enjoyed teaching this material with Professor Catherine Gage O’Grady.  The recording of the PLI session is available at a reduced rate here.

EthicalSystems.org — The “Go To” Site for Behavioral Ethics

Home

EthicalSystems.org, which we have discussed many times here at BLE, is a must-read for anyone interested in behavioral ethics.  Put it on your favorites list, add it to your browser, make a sticky note reminding yourself to visit often — in other words, do what you can to be a regular visitor to this site.  You won’t be sorry.

If you need more of a nudge (!), here is a sampling of three relevant recent posts from the EthicalSystems.org blog:

  1. Framing the Language of Business:  This post, which discusses Scott Killingsworth’s excellent article on the power of framing in the business context, has clear implications for the legal community.  Just as the “business as war” frame can lead to ethical lapses, Killingsworth’s article provides a sober warning against the excesses that framing “litigation as war” can produce.
  2. Testing, Testing: Drawing Conclusions From Test Environments: This post focuses on a recent work by Professor Donald Langevoort of Georgetown Law School, who was one of the first scholars to write about behavioral legal ethics (well before we had a name for it), beginning with his 1993 article, Where Were the Lawyers? A Behavioral Inquiry Into Lawyers’ Responsibility for Clients’ Fraud.  In his recent work, Prof. Langevoort describes the state of empirical research and its application in the compliance field, but his discussion of behavioral science has wide-ranging application for virtually any area of ethical decision-making.
  3. An Executive Order Promoting Behavioral Science: This post provides a rich description of the importance of President Obama’s recent executive order mandating that federal agencies look for ways to apply the insights from behavioral science to promote public policy in executive branch decision-making.  Not that there was much doubt, but behavioral science has arrived — front and center — in policy discussions, now and for the future.