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

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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.

DOJ and Implicit Bias

Implicit Bias.jpgAs readers of this blog may know, there is a wealth of research on how implicit bias can influence judgment and behavior (for example, my co-blogger Molly Wilson has discussed implicit bias in the context of Batson challenges, here). One area where implicit bias has received extensive attention relates to the prosecution (and defense) of crime. That’s why the United States Department of Justice’s recent announcement that all DOJ employees will receive training on implicit bias is such as important step.  As Attorney General Loretta Lynch stated in announcing the initiative:

“Our officers are more effective and our communities are more secure when law enforcement has the tools and training they need to address today’s public safety challenges . . . At the Department of Justice, we are committed to ensuring that our own personnel are well trained in the core principles and best practices of community policing. Today’s announcement is an important step in our ongoing efforts to promote fairness, eliminate bias and build the stronger, safer, more just society that all Americans deserve.”

For those wanting more resources on the role of implicit bias on judgment and decision-making, a large body of information is available, including at the American Bar Association’s website (which includes this excellent video on the neuroscience of implicit bias) and this list of resources created by Professor Kimberly Norwood from Washington University School of Law.

The Supreme Court’s Intuition

I’ve noticed over the years that, at least with regard to judicial disqualification, the Supreme Court has a penchant for making interesting assertions about human psychology, but then failing to provide an empirical basis for its claims — a matter I discuss in more detail with regard to the Court’s recent decision in Pennsylvania v. Williams in a new blog post on the New England Law faculty website, On Remand.

Update: 06/23/16:  Others have written more extensively about the role of unconscious bias with regard to judicial recusal and disqualification.  For some of the scholarship in this area, see:

Debra Lyn Bassett, Three Reasons Why the Challenged Judge Should Not Rule on A Judicial Recusal Motion, 18 N.Y.U. J. Legis. & Pub. Pol’y 659 (2015)

 Melinda A. Marbes, Reshaping Recusal Procedures: Eliminating Decisionmaker Bias and Promoting Public Confidence, 49 Val. U. L. Rev. 807 (2015)

 Melinda A. Marbes, Refocusing Recusals: How the Bias Blind Spot Affects Disqualification Disputes and Should Reshape Recusal Reform, 32 St. Louis U. Pub. L. Rev. 235 (2013)

 Debra Lyn Bassett & Rex R. Perschbacher, The Elusive Goal of Impartiality, 97 Iowa L. Rev. 181 (2011)

Ethics By Design

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Many of the leading researchers and scholars in the area of behavioral ethics and systems design gathered last week at a conference held by EthicalSystems.org.  Entitled “Ethics By Design,” the conference focused on business ethics, but much of what was discussed has direct applicability to the world of Behavioral Legal Ethics. Luckily for those of us who were not in attendance, videos of the conference presentations are now available here.  Thanks EthicalSystems.org for your leadership and work in the field!

Update: 6/17/16:  For those not familiar with the work of EthicalSystems.org or its approach, the introduction to the conference by the organization’s founder, Jonathan Haidt, is a great introduction: