Scholarship Update on Stanley Milgram

50 Years of ‘Obedience to Authority’: From Blind Conformity to Engaged Followership, Annual Review of Law and Social Science, Vol. 13, pp. 59-78, 2017

Abstract

Despite being conducted half a century ago, Stanley Milgram’s studies of obedience to authority remain the most well-known, most controversial, and most important in social psychology. Yet in recent years, increased scrutiny has served to question the integrity of Milgram’s research reports, the validity of his explanation of the phenomena he reported, and the broader relevance of his research to processes of collective harm-doing. We review these debates and argue that the main problem with received understandings of Milgram’s work arises from seeing it as an exploration of obedience. Instead, we argue that it is better understood as providing insight into processes of engaged followership, in which people are prepared to harm others because they identify with their leaders’ cause and believe their actions to be virtuous. We review evidence that supports this analysis and shows that it explains the behavior not only of Milgram’s participants but also of his research assistants and of the textbook writers and teachers who continue to reproduce misleading accounts of his work.

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Behavioral Legal Ethics and Accurate Science

In my article on teaching behavioral legal ethics, I noted that as teachers we have an obligation to remain atop of the science in the field to make sure that we impart the most accurate and up-to-date scientific understandings to our students. This duty has become all the more important given the debate over what has been called the “replication crisis” — that is, the extensive discussion in the field of psychology (as well as other sciences) about whether the effects in many studies have been overstated or, in some cases, are non-existent. A number of methodological questions have been raised, including whether researchers have engaged in what is referred to as “P-hacking” – that is, manipulation of data to produce effects. This provocative topic was recently discussed in the New York Times Magazine’s cover article, When The Revolution Came for Amy Cuddy.  Even Nobel Award winner Daniel Kahneman (author of Thinking Fast and Slow) has notably weighed in, stating in an open letter that a sub-field of social psychology known as social priming has become “the poster child of doubts about the integrity of psychological research.”  More recent questions about the replicability of psychology research have also emerged.

The challenge for the legal community – at least those of us who do not rely on our own empirical research – is to ensure that we teach our students accurate science. Yet, how does one know whether previously reported studies that have been called into question should still be taught, or what provisos should be provided to students as part of our instruction?

In my professional responsibility class, for instance, in past years I have discussed (on our class blog) money priming, relying on the considerable research that demonstrates that priming people with thoughts of money can increase anti-social behavior. I usually alert my students to these studies and ask them to consider how these results might impact their ethical choices as practicing attorneys, as well as the career choices they plan to make after graduation.

In the last few years, however, there has been a debate about whether the research on money priming is as dependable as has been claimed. One set of researchers, for example, was unable to replicate some of the most well-known studies in the field, leading to questions about whether money priming even occurs. A rejoinder, based on a 10-year review of experiments, posited alternative explanations for the failures of replication, concluding that the vast majority of studies in the field still demonstrate money priming effects.

Given these competing views about the research, what should one do? One approach would be to avoid the entire subject until the dust settles and a new consensus emerges.  I may take this approach next semester when I teach professional responsibility, as money priming is a relatively narrow topic that I teach as a small portion of my overall discussion of behavioral legal ethics. Or I may decide to engage my students in the debate, exposing them to the competing research claims and encouraging them to come to their own conclusions about how to consider the state of the science.

Either way, this example reinforces how essential it is to stay abreast of the science in the fields in which we teach. After all, behavioral legal ethics is only as stable as the science upon which it rests.

Scholarship Update: Blind Injustice

Blind InjusticeAs I am sure is true for many, I have large stacks of books waiting to be read that sit in piles on my office desk or home book stand. One pile, which I am working through — books about the role of behavioral science in criminal justice — just expanded with the publication of Mark Godsey’s Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions.  The director of the Ohio Innocence Project, Professor Godsey‘s book  promises to be a tour de force about how a myriad of psychological factors — such a confirmation bias, cognitive dissonance and dehumanization, to name a few — can cause prosecutors to make horrible errors in judgment.  One chapter is dedicated to tunnel vision, a term well-known to those in the field of criminal justice, which too often causes prosecutors and law enforcement to focus narrowly on evidence of guilt without objectively assessing contrary evidence of innocence (I have written about tunnel vision with regard to the famous case of Jeffrey MacDonald, the army doctor who was convicted of the brutal slaying of his wife and two young daughters more than 40 years ago).

Peppered with examples from cases Professor Godsey has worked on, as well as others in the news, the book promises to be a valuable addition to the growing body of scholarship exploring the role of psychological biases in the process of criminal adjudication.

Other notable books on the subject include: Adam Benforado’s Unfair (2015), Dan Simon’s In Doubt: The Psychology of the Criminal Justice Process (2012), and Daniel Medwed’s Prosecution Complex (2012).  And, of course, there is a large and growing body of academic scholarship in law reviews, including this article by Keith Finley and Michael Scott and this one by Alafair Burke.

Ethical Systems’ new E-book: Head to Head

ESProfiled in today’s Wall Street Journal, the new E-book by Ethical Systems, Head to Head: A Conversation on Behavioral Science and Ethics, is a great introduction to the subject. Easily accessible to non-experts, the book is formatted as an interesting conversation between ES’s CEO, Azish Filabi, and Jeff Kaplan, a leader in the field of Compliance & Ethics (Kaplan’s Conflicts of Interest blog provides a wealth of useful material on behavioral ethics in the compliance field). As the WSJ noted today:

Behavioral science can help organizations improve their ethics and compliance programs, but wading through the academic prose of such research reports can make them less useful to the people tasked with overseeing those programs. A new e-book from Ethical Systems, a collaboration of researchers that promote ethical business culture, highlights the latest insights from the behavioral science field and provides action points for organizations to incorporate any lessons that are learned.

Many of the behavioral topics in Head to Head will be familiar to readers of this blog, such as overconfidence bias, the “Holier Than Thou” effect, conformity bias, priming by money, the corrupting influence of power, slippery slopes, the counterfeit self, and the power of nudges. A great read for anyone who wants a lively refresher on the power of behavioral science to shape ethical decision-making.

Update: 10/10/17: Ethics and Compliance Initiative has posted a webcast by the two authors of Head to Head, which is available here (the webcast is free; registration required).

New Compliance Video

In an earlier post, I discussed the role that behavioral ethics plays in the compliance field, highlighting the work of Scott Killingsworth, Jeff Kaplan, and others. For those who teach or write in the compliance area, a new video is now available (for commercial licensing) that I highly recommend. Created by Richard Bistrong in conjunction with Mastercard, it explores Mr. Bistrong’s own compelling story. The video is exceptionally well-done and would be a valuable addition to any training or educational program. For the trailer of the video and more details, visit the FCPA Blog.

Moral Courage

 

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John Doar (right) and U.S. marshals escorting James Meredith to class at the University of Mississippi

Douglas Linder and Nancy Levit‘s inspiring book, The Good Lawyer, describes the work of John Doar (1921-2014), who, as Assistant Attorney General for Civil Rights under Presidents Kennedy and Johnson, was at the front lines of many of the most contentious events in the civil rights movement. It was Mr. Doar who guarded James Meredith during his first night in his dormitory amidst riots at the University of Mississippi in 1962; who prevented bloodshed by situating himself between police and protesters while pleading for peace three days after Medgar Evers was killed in Jackson, Mississippi in 1963; and who, despite death threats, argued for and obtained convictions in the infamous “Mississippi Burning” trial in 1967 (more here). These are but some of the courageous acts by Mr. Doar, who consistently put principle before his own personal safety in his illustrious career.

As the New York Times noted, Mr. Doar “‘was the face of the Justice Department in the South,’ President Obama said in 2012 when he presented Mr. Doar with the Presidential Medal of Freedom, the country’s highest civilian honor. ‘He was proof that the federal government was listening.'”

What was it about Mr. Doar, who also played a leading role in the impeachment proceedings against Richard Nixon, that spurred him to act so bravely in situations where others would have shied away? Linder and Levit survey the literature on three types of courage — physical, moral and psychological — noting that, as both genetic and developmental factors contribute to courageous conduct, training and the proper conditions can help nurture courage by lawyers.

My own scholarship, Moral Courage in Indigent Defense, has led me to similar conclusions. Situating the discussion of moral courage within the context of criminal defense lawyers who represent indigent clients, I explore ways to encourage defenders to resist excessive workloads that undermine competent representation.

The abstract:

This essay, part of New England Law Review’s symposium on Behavioral Legal Ethics, explores the conditions under which criminal defense lawyers for indigent clients can be expected to resist excessive workloads. Drawing from research on the psychology of moral courage, it identifies factors that have been found to correlate to courageous conduct in the face of personal risk, most notably the role of anger, moral conviction and sensitivity to injustice. Applying these findings to the field of indigent defense, it sets out some preliminary ideas about how to identify and overcome barriers to action.

 

@TheBLEBlog

Our new Twitter account has been active —  for example, highlighting scholarship over the years on subjects that we now call Behavioral Legal Ethics. For those on Twitter, we can be followed @TheBLEBlog.

Here are a few of our recent tweets: