I just posted the draft of my article, Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility, ___ Mich. St. L. Rev. ___ (2016) (forthcoming). In it, I describe how I incorporate lessons from behavioral science into the survey course I teach on professional responsibility. I have discussed some of these techniques before (for example, here, here and here), but this article explores these themes and ideas in much more detail.
Here is the abstract:
The field of behavioral legal ethics — which draws on a large body of empirical research to explore how subtle and often unconscious psychological factors influence ethical decision-making by lawyers — has gained significant attention recently, including by many scholars who have called for a pedagogy that incorporates behavioral lessons into the professional responsibility curriculum. This article provides one of the first comprehensive accounts of how law teachers can meet this challenge. Based on an approach that employs a variety of experiential techniques to immerse students in the contextual and emotional aspects of legal practice, it provides a detailed model of how to teach legal ethics from a behavioral perspective. Reflections on the approach, including the encouraging response expressed by students to this interdisciplinary method of instruction, are also discussed.
The role of the GM lawyers in the ignition switch case has received scrutiny, including by the legal ethics community. But, until now, the scandal has not been explored from a behavioral perspective. That has now started to change with the publication of Inside Lawyers: Friends or Gatekeepers, Professor Sung Hui Kim’s most recent consideration of the role of inside counsel. The article, which responds to a critique of her views about the gatekeeping role of inside counsel, once again explores why lawyers (such as in the GM case) possess a host of psychological biases that make it difficult to uncover and report misdeeds committed by others inside an organization. Prof. Kim’s current article, as well her earlier work that explore these psychological phenomena in more detail (see here, here and here), are a must read for anyone interested in the behavioral aspects of corporate legal ethics.
Most of us probably recall Batson, the case in which the Supreme Court held that a criminal defendant could challenge his conviction if he or she could convince a judge that jurors of a protected class were intentionally excluded because of their membership in that class. Recently, the Missouri Court of Appeals for the Eastern District published an opinion in the case of Missouri v. Rashad in which the issue was whether the prosecutor’s dismissal of two African American jurors was pretextual. This case was interesting because the prosecutor admitted that, in the case of one African-American juror, he had made a mistake in not dismissing a similarly situated Caucasian juror. The question for the court was whether a prosecutor’s oversight is an excuse for differential treatment. The court answered that it was, seemingly because Batson requires intentional exclusion.
What is truly notable about this opinion is the concurrence, written by Chief Judge Lisa Van Amburg, which takes issue with Batson because it does not address implicit bias. In its simplest form, implicit bias is the unconscious tendency most people have to favor particular groups of people and disfavor others. The Implicit Association Test (IAT) is a test in which people are asked to pair items, and their reaction time is measured. There are a number of different versions of this test, and each measures a different type of bias. In one, people pair black and white faces with positive or negative words. Most people are faster when they are pairing white faces with positive words than when they are pairing black faces with positive words. Judge Van Amburg’s point in her concurrence is that when an attorney makes an “honest mistake” by dismissing a black juror, but not a similarly situated white juror, he may well be exhibiting implicit bias. Moreover, it is likely that this type of implicit bias occurs more broadly in the selection of jurors, and in a variety of other areas in the criminal justice system.
The opinion and concurrence can be read here: Missouri v. Rashad
I have watched the 60 Minutes story, Anonymous, Inc. (link here), only once and have just skimmed the report by Global Witness, so let me start by saying that these are very preliminary assessments – but on first blush, what I have seen is quite disturbing: a dozen lawyers from different firms, when presented with the opportunity for a significant fee, provided preliminary advice on how to help a potential client “scrub” dirty money by explaining how to structure transactions to hide the source of the funds (in contrast, a thirteenth lawyer who was approached refused to provide any advice or assistance to the potential client). There are a wide number of ethical questions raised: do the prescriptions of Model Rule 1.2(d) apply to prospective clients?; to what extent do the lawyers in the video “know” that the prospective client has obtained the funds through crime or fraud?; what obligation exists to perform due diligence to determine if the funds are the result of crime or fraud, etc.? (Two prominent ethics experts, who provided an opinion about the conduct of the lawyers involved in the story, have expanded on their views here).
There are also some very interesting behavioral questions: why would these lawyers, who presumably are aware of the ethical prohibitions against assisting fraud and criminal conduct, seemingly skate toward (or over) the edge of permissible conduct so easily? Merely out of greed and avarice or because of powerful behavioral factors, such as partisan bias, where advancing a (potential) client’s interest trumps the formal rules prohibiting such conduct? Is cognitive dissonance at play: once the lawyer starts to provide advice on how to structure a transaction to protect anonymity is there a need to rationalize the behavior as consistent with the ethical rules? Is motivated reasoning afoot – allowing the lawyers to convince themselves that the rules are ambiguous enough that the advice (and the potential hefty fee) is permissible? How about moral disengagement — after all, the misbehavior that produced the dirty money happened far away, across the globe, with no identifiable (or at least immediately salient) victims? Per this last point, is this an example of ethical fading, where the business aspects of the decision (how to provide the potential client with technical advice on how to hide the source of the funds) crowded out the ethical considerations involved? These are just some of the questions that jumped out at me as I watched this disturbing video.
I will spend more time thinking about these issues, posting more as I delve deeper.
(Disclosure: The CEO of Global Witness, which led this undercover investigation, and I worked together for many years and we are friends).
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 firstname.lastname@example.org.
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.
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!