Scholarship Update

langevoort-don_1 Thanks to for posting an important new draft paper by Professor Donald Langevoort of Georgetown Law Center.  In it, Professor Langevoort — one of the leading scholars in the field of behavioral law and corporate ethics — takes a multidimensional approach to the thorny question of corporate culture and compliance.  Many of the lessons have applicability to a variety of organizational cultures, including law firms and other legal organizations. A must read for anyone interested in the topic.

Here is the abstract:

In the last few years especially, law-makers have increasingly invoked culture as something crucial to good compliance. The phrase “culture of compliance” has thus made its way into common legal discourse as describing both a goal and a marker. Precisely they mean by this is contestable, but there is enough evidence that the demand for healthy compliance culture is serious to invite careful thought. What is it, or should it be, and how might we know? This article draws from organizational behavior, behavioral ethics, and financial economics to develop an approach to how and why corporate cultures resist naively appealing interventions of “tone at the top” and ethical exhortation. Though recognizing the limited institutional capacity of government enforcers to promote structural changes in corporate governance and internal controls, the article concludes that any hope of getting to a socially optimal level of compliance — including a healthy culture of compliance — depends on a strong public voice to counter the beliefs and biases that grease internal perceptions of how firms succeed. In the end, however, the most important message about cultures of compliance is for corporate leaders and, especially, boards of directors. It is much too easy to look around and see good people working hard at difficult jobs and assume that a good compliance culture exists simply because everyone has been warned of the damage that can come from getting caught doing wrong. Or worse, to assume that an observable abundance of intensity, loyalty and creativity are signs that all is good. Taking culture seriously — appreciating the opportunities for transmitting values as well as anticipating the many hidden pathways of resistance and denial — is a necessary step toward the sort of compliance that never attracts prosecutors’ unwanted attention.

Repeated Misconduct and “Unethical Amnesia”

Those of us who study and write about ethics often wonder why human beings repeat unethical behaviors and fail to learn from their mistakes. Recently, researchers from Northwestern and Harvard have grappled with that question and believe that they may have an answer. Maryam Kouchakia and Francesca Gino conducted a study on cheating and found evidence that people suffer from “Unethical Amnesia,” the tendency to forget past, unethical behavior.  Kouchakia and Gino hypothesize that the psychological discomfort that individuals experience when they cheat leads them to obfuscate memories of their ethically questionable actions. As a result, these individuals fail to learn from the past, and are more likely to repeat bad acts.

More information about the research can be found here: Unethical Amnesia

Psychology of Torts


Jennifer Robbennolt, whose work on behavioral legal ethics inspired this blog, has a new book out, entitled The Psychology of Torts Law, co-authored by Valerie Hans (the introduction is available here).  Looks like a fascinating and important read.

Here is the description as provided by the publisher, NYU Press:

Tort law regulates most human activities: from driving a car to using consumer products to providing or receiving medical care. Injuries caused by dog bites, slips and falls, fender benders, bridge collapses, adverse reactions to a medication, bar fights, oil spills, and more all implicate the law of torts. The rules and procedures by which tort cases are resolved engage deeply-held intuitions about justice, causation, intentionality, and the obligations that we owe to one another. Tort rules and procedures also generate significant controversy—most visibly in political debates over tort reform.

The Psychology of Tort Law explores tort law through the lens of psychological science. Drawing on a wealth of psychological research and their own experiences teaching and researching tort law, Jennifer K. Robbennolt and Valerie P. Hans examine the psychological assumptions that underlie doctrinal rules. They explore how tort law influences the behavior and decision-making of potential plaintiffs and defendants, examining how doctors and patients, drivers, manufacturers and purchasers of products, property owners, and others make decisions against the backdrop of tort law. They show how the judges and jurors who decide tort claims are influenced by psychological phenomena in deciding cases. And they reveal how plaintiffs, defendants, and their attorneys resolve tort disputes in the shadow of tort law. 

Robbennolt and Hans here shed fascinating light on the tort system, and on the psychological dynamics which undergird its functioning.

(Update:  9/1/06, 9:40pm:  for those who teach in law schools, this would be a good purchase for your libraries — hint hint).

New ABA Video — “Hidden Injustice: Toward a Better Defense”


As I’ve noted previously, research on implicit bias has taken hold at the highest levels of government, with the U.S. Department of Justice requiring training on implicit bias for all of its employees.

Criminal defense lawyers, of course, are also prone to implicit bias, as Professor L. Song Richardson has written in her excellent article in the Yale Law Journal. Now she and other experts discuss implicit bias and criminal defense in a new video, produced by the ABA, which is available here. It is an excellent introduction to the subject, and can be quite useful in classroom discussions (I plan to use it in my criminal defense ethics class this semester).

(The research basis for implicit bias also corresponds with the reasons why lawyers for indigent defendants can suffer from what I call “ethical blindness,” as I have written elsewhere).

Happy viewing!

Scholarship Update: Motivated Reasoning

For those of us who study behavioral legal ethics, one of the most important and relevant psychological findings is known as “motivated reasoning,” which is the unconscious tendency we all possess to reason our way to conclusions we prefer (I have written about motivated reasoning in a number of articles, including here, here and here).

In a new and important article, Professor Francesca Gino and her colleagues lay out the foundations of motivated reasoning in the context of ethical decision-making.  Entitled Motivated Bayesians:  Feeling Moral While Acting Egoistically, the paper explains how people often prioritize self-interest at the expense of morality, all the while convincing themselves that they are acting ethically.  As they note in the paper:

[P]eople who appear to exhibit a preference for being moral may in fact be placing a value on feeling moral, often accomplishing this goal by manipulating the manner in which they process information to justify taking egoistic actions while maintaining this feeling of morality.

The paper is chock full of experimental evidence that supports these conclusions and is highly recommended.

It is available as part of a symposium on motivated reasoning in the Journal of Economic Perspectives. The paper starts on page 189 of the full symposium, which is available on Google Scholar (also recommended is the excellent introduction to the symposium by two notable experts, Nicholas Epley and Thomas Gilovich, which starts on page 133).

BLE and the Practicing Lawyer

Having recently returned from International Legal Ethics Conference VII, I was happy to see so much interest in the emerging field of Behavioral Legal Ethics (BLE).  The two BLE panels on which I participated were well attended.  Other panels also included discussions of BLE, including a fascinating discussion of how behavioral science is making its way into the education of South African lawyers.

I am also heartened to see that the field is expanding to include important discussions among legal practitioners.  For instance, Catherine O’Grady and I have produced this online CLE program with the Practising Law Institute that has been viewed by more than 800 lawyers (registration fee required).  As another example, I just came across this article in a recent edition of the Oregon State Bar Bulletin (the magazine for Oregon’s practicing lawyers) that lays out some of the fundamentals of BLE (citing many leading BLE scholars such as Jean Sternlight & Jennifer Robbennolt, Robert Prentice and Catherine O’Grady).  How great that BLE has started to take hold with those who need it most — lawyers who regularly struggle with the ethical dilemmas that arise in practice.

For anyone interested in BLE, it is an exciting time indeed!

The Moral Compass of In-House Counsel

There is a growing body of scholarship that addresses the behavioral aspects of in-house lawyers and how they function. Some of the more prominent scholars in the area include Professor Sung Hui Kim (see here and here) and Professor Donald Langevoort (see here and here). Now comes a new and important study of in-house counsel in the United Kingdom, entitled Mapping the Moral Compass: The Relationships Between In-House Lawyers’ Role, Professional Orientations, Team Cultures, Organisational Pressures, Ethical Infrastructure, and Ethical Inclination.  The study, which surveyed 400 respondents from England and Wales, provides keen insights into how in-house lawyers perceive the ethical dimensions of their work.

The abstract of the study provides more detail:

This report provides a unique profile of real differences within the in-house community. We examine individual and team orientations to the in-house role; the invocation of professional principles; and ethical infrastructure, ethical pressure and relationships with the employer. We relate these to externally validated indicators of ethical inclination: (i) moral attentiveness (the extent to which people deal with problems as moral problems and the extent to which people identify moral problems); and (ii) moral disengagement (the extent to which people are inclined to morally disengage to behave unethically without feeling distress). It is as rich a picture of what it means to be an ethical in-house lawyer as has ever been attempted.

Through this research we profile the characteristics of individuals, teams and environments most associated with a stronger or weaker inclination to behave ethically. It is important to emphasise that this mapping of the ‘moral compass’ of in-house lawyers shows that ethicality is associated with individual and professional notions of the in-house role but also with team orientations and the broader organisational environment. Ethicality is both a systemic and individual phenomenon.

To help understand the diversity in ethical identities, we identify four main groups of in-house lawyers (described in more detail in Chapter 9):

• the Capitulators (who are reasonably morally attentive but are under ethical pressure and are less morally engaged);

• the Coasters (who do not perceive themselves as under ethical pressure and have moderate-low levels of moral attentiveness but not lower moral disengagement);

• the Comfortably Numb (who do not perceive high levels of ethical pressure and have low levels of moral attentiveness and higher moral disengagement – the most concerning of the four groups); and,

• the Champions (who are under the highest levels of ethical pressure but retain the highest levels of moral attentiveness and the lowest levels of moral disengagement).

Our research suggests that ethical in-house practice is about individual understandings of the role (orientations towards commerciality; ethicality; independence; being a mere advisor; and exploiting uncertainty); it is about the approach of teams and the organisations those teams work in; it is about understanding and drawing on all the obligations of professionalism; and, it is about building a better infrastructure to manage the tensions within the role.

The report is part of a larger project, entitled Ethical Leadership for In-House Lawyers (more here).

For those who are interested, two of the authors of the study, Richard Moorhead and Steven Vaughan, will be discussing their work at NYU Business School on July 14 at 5:00 pm. Details are available here.