Scholarship Update

Two important works on behavioral ethics have been posted recently. The first is by Professor Eyal Zamir, a leading scholar on the application of behavioral science to legal decision-making, who makes the important point that behavioral research supports “many of the predictions of standard economic analysis, without committing to a simplistic portrayal of human motivation.”  The second is co-authored by Professor Yuval Feldman, a leader in the field of behavioral ethics (see our prior post about his book), who discusses the implications of behavioral ethics in the field of compliance.  Abstracts for both papers are provided below.

Zamir, Eyal, Refounding Law and Economics: Behavioral Support for the Predictions of Standard Economic Analysis (August 26, 2019). Review of Law and Economics, Forthcoming; Hebrew University of Jerusalem Legal Research Paper. Available at SSRN: https://ssrn.com/abstract=3442740

Abstract

Based on the premise that people are rational maximizers of their own utility, economic analysis has a fairly successful record in correctly predicting human behavior. This success is puzzling, given behavioral findings that show that people do not necessarily seek to maximize their own utility. Drawing on studies of motivated reasoning, self-serving biases, and behavioral ethics, this article offers a new behavioral foundation for the predictions of economic analysis. The behavioral studies reveal how automatic and mostly unconscious processes lead well-intentioned people to make self-serving decisions. Thus, the behavioral studies support many of the predictions of standard economic analysis, without committing to a simplistic portrayal of human motivation. The article reviews the psychological findings, explains how they provide a sounder, complementary foundation for economic analysis, and discusses their implications for legal policymaking.

Feldman, Yuval and Kaplan, Yotam, Behavioral Ethics as Compliance (September 23, 2019). Forthcoming, Cambridge Handbook of Compliance (Van Rooij & Sokol Eds.) Available at SSRN: https://ssrn.com/abstract=3458582

Abstract:

This chapter studies the implications of behavioral ethics research to questions of legal compliance. Behavioral ethics emphasizes the concept of bounded ethicality, referring to a long list of biases and cognitive limitations that prevent people from making a full and candid evaluation of the ethicality of their own actions. In other words, people often act unethically not because they made a conscious choice to behave badly, but because they were able to ignore, downplay, or justify their own misconduct. This chapter explores the meaning of behavioral ethics findings for questions of compliance with the law. That is, if people often ignore or downplay their own unethical choices, how can law-makers and regulators act to improve compliance with the law? The chapter describes the central relevant findings of behavioral ethics research, the challenges these findings pose for legal compliance, and outlines possible solutions. In particular, we advocate a novel regulatory approach utilizing ethical nudges: regulatory interventions that are designed to improve ethical deliberations by potential wrongdoers.

Debating Debate (repost)

Many lawyers started on their path toward law in high school and college — as members of an organized debate team, arguing one side and then the other of the annual national resolution. For me it was an all-consuming affair in high school, with travel most weekends to debate tournaments across the country. Exhilarating and formative, debate taught me many of the analytical and research skills I have needed since — as a lawyer and now a teacher.  So, I was very happy to see Robert Prentice’s excellent response to the recent NYT op-ed critique of organized debate.  Professor Prentice is correct that, if we are looking to understand our wayward political discourse, the explanation is not to be found in the tools taught by organized debate, but rather in the psychological processes that produce self-serving and related psychological biases. These are useful lessons for all lawyers, especially those interested in the psychology of ethical decision-making.

As Professor Prentice notes:

When politicians engage in excessively partisan wrangling, it is not because of the debate training that some small number of them may have had. It is because of the self-serving bias. Debaters, more than others, know that there are at least two sides to every argument because they’ve practiced arguing for both sides. They know better than others that they should be open minded, though the self-serving bias may cause them to ignore than knowledge.

Because of their training, debaters also know better than most, that some arguments are better than others, that real facts should be more persuasive than “alternative facts,” and that calling something “fake news” just because you wish it were fake new does not make it fake news.

Those of us who wish to be moral actors must realize that (a) in the political arena, we must fight against the undue impact of the self-serving bias, and (b) the self-serving bias undermines the integrity of our moral judgments just as it does our political judgments. But you can let your kids go out for the debate team, we promise.

Professor Prentice’s full response is available here.

2019 ComplianceNet Conference

ComplianceNetBehavioral ethics has forceful implications for the compliance world, as many leaders in the field have demonstrated (for a sampling, see works by Donald Langevoort, Scott Killingsworth, Jeff Kaplan, Todd Haugh, Linda K. Trevino, Yuval Feldman, among others). For those interested in this intersection, a treasure trove of videos on this and related topics are available from the 2019 ComplianceNet Conference, which took place at Villanova University Charles Widger School of Law. Many of the presenters are leading voices in the world of behavioral ethics research and its applications, including compliance. Links to the videos can be found here.

Congratulations!

Congratulations to the Practising Law Institute for winning a Gold Award, the highest level of recognition, in the “Best Use of Video for Learning” category in the Brandon Hall Group’s Excellence Awards, for its video MOTIVATED REASONING AND LEGAL ETHICS. This video is freely available to legal educators.  More information here.

Here is the press release about the award.

The CLE of BLE

Two of the audiences for this blog are teachers of legal ethics who want to explore the behavioral aspects of ethical decision-making with their students and practicing attorneys who grapple with ethical decisions. For the former group, recently I culled from our archives blog posts that might be of interest. Finding ways for the latter group to access relevant material can be more difficult — after all, practicing lawyers tend to be quite busy and learning about a new field, especially one that is inter-disciplinary, has its challenges. This is why I am thrilled to learn about what looks like an excellent CLE program on the subject, sponsored by the Texas Center for Legal Ethics, entitled “Your Brain on Ethics: How That Thing Between Your Ears Can Lead You Astray” (for a description, see Your Brain on Ethics — course description — April 2019).

This program caught my eye for two reasons (in addition to its catchy title). The first is that the faculty involves a leader in the field of behavioral science scholarship and pedagogy, Professor Robert Prentice, who is Department Chair, Business, Government and Society, at McCombs School of Business, University of Texas at Austin. For those not familiar with Professor Prentice’s work, I commend his long list of publications on behavioral science and decision-making, including his more recent work about behavioral ethics pedagogy (listed in this post).  In addition, Professor Prentice is a founder of Ethics Unwrapped, one the best resources available for teaching behavioral ethics (I guest blogged for Ethics Unwrapped a few years ago).

The second reason that this CLE program caught my eye is that it includes an excellent written overview of the field of Behavioral Legal Ethics, entitled “Ethical Decision Making, Fast and Slow,” which is now publicly available here.  The summary includes a description of the role of Systems 1 and 2 processing, as well as the many situational factors and cognitive and motivational biases that can produce unintended unethical behavior. For anyone looking for an introduction to the field, this is a wonderful place to start.

This program will next be presented at the Texas Health Law Conference on October 8, 2019, for anyone who might be interested.

Update:  9/12/19: Here is the Table of Contents for the written materials for “Ethical Decision Making, Fast and Slow”:

Scholarship Update

Professor Seymore

An interesting application of the research on behavioral ethics to adoption lawyers: Malinda L. Seymore, Ethical Blind Spots in Adoption Lawyering, University of Richmond Law Review (2019), Forthcoming.

 

Here is the abstract:

Lawyers engaged in adoption work often call it “happy law,” and consider adoption – finding a child for yearning parents, finding parents for a needy child – an unmitigated good. That attitude can mask the fact that all adoption begins with loss. One family loses a child so that another family can gain one. A lawyer’s assurance that she is engaged in positive work can lead to ethical blind spots that ignore the complexities of adoption practice. And while the touchstone of adoption is the best interests of the child, the primacy in legal ethics of the interests of the client, who is rarely the child, skews that focus. This article discusses ethical issues relevant to adoption attorneys, centering on the Model Rules of Professional Conduct most applicable to adoption practice, as well as the lessons from behavioral ethics that inform the ethical blind spots common in the practice. Rules relating to competency and confidentiality, conflicts of interest and dual representation, and the lawyer’s role as counselor are particularly germane. Since legal ethics can be both descriptive and normative, this article addresses both what the ethical requirements of professional responsibility are, and what they should be in adoption practice. This article sketches the contours of ethical lawyering in adoption in order to shine light on the ethical blind spots adoption attorneys should avoid, and to suggest some solutions from behavioral ethics to eradicate blind spots.

Teaching Behavioral Legal Ethics: A Blog and Literature Review

As we head into a new semester, I thought it would be a good time to cull from our archives blog posts that are helpful to teaching Behavioral Legal Ethics. Here is my list, with links for those who are interested:

In addition, there is growing scholarship about the pedagogy of Behavioral Legal Ethics. I have started a bibliography, broadening it to include behavioral ethics and psychology/legal education more generally. Here is my initial list (in addition, I would encourage anyone teaching BLE to be familiar with its foundational scholarship, starting with Behavioral Legal Ethics). Please let me know if there are other articles on BLE pedagogy that should be included (I can be reached at teldred@nesl.edu). Thanks!

Behavioral Legal Ethics: