I didn’t start out asking questions about ethics. I started out wanting to study how humans’ behaviors affected other humans’ behaviors. That’s how I ended up in a PhD program in Social Psychology at the University of Virginia. I was enthralled with the work I did while I was in that program, particularly when I became involved with research in social cognition. But I had little patience for the myopic approach to the application of the findings. We seemed content with research that was relevant only in the bowls of Gilmer Hall, where the psychology faculty, graduate students, and undergraduate research assistants met weekly to discuss on-going and future research studies. I was acutely aware that a study on the helping behavior of 146 college undergraduates under high and low cognitive load was only interesting to other psychology PhDs, unless we could make a case that it mattered, I mean, it mattered to someone besides us and others doing virtually the same kind of work.
So, I went to law school. But because I was still finishing up my six-year graduate program, I was still making frequent trips to Gilmer Hall, even as I was preparing my oral argument for Trial Advocacy. In short, I had a foot in both worlds. It was an eye-opening experience. I was horrified by the casual way my Psych colleagues would suggest dispensing with, or entirely upending rules of evidence, rules of procedure, and practices based upon the Constitution (and settled by our highest Court). I was likewise shocked and dismayed by the myriad assumptions upon which our legal system is built; many of them had been empirically demonstrated to be inapposite. Mostly what I found distressing was the ignorance of one field for the other. Needless to say, the time I spent driving back and forth from the law school to the psychology department at UVA was a period of much dissonance for me.
Although I was only vaguely aware at the time, I was not alone in my voyage. Hundreds of PhD/JD psychology and law types were engaged in some stage of schooling or academia along with me. Many had come before and were already out there doing ground-breaking work, and forging a path for future research. Both fields have benefitted immensely from efforts by those with knowledge of the foci and methodologies of each to bring them together. My writing and teaching continues to be an outlet for the dissonance I still experience when I teach doctrinal courses.
More recently, my thinking about how behavioral research should inform legal rules and practices has gained a new dimension. I see a common thread in much of the scholarship I see, and it is ethics. In a way, this is unsurprising. I always start my first-year, first-semester Torts class by encouraging student to think about law as the mechanism by which we govern human interaction. We talk about the social contract and I ask them to describe “good” society, and then to think about what they know about law and how law “works” to enforce the social contract and to increase common good. These are themes throughout the course. Conversation about law as a deterrent of bad actions and a reinforcer of desirable behavior is often, I’ve found, devoid of any discussion of ethics or morality. Law is instrumental, morality is not. Morality—good ethical practice—exists on its own as a kind of exogenous virtue. Certainly, we might create rules that require “ethical” practices, but that is really just about using laws (or standards) in an instrumental way, in the same way we use speed limits to encourage safe driving.
I have come to believe that many discussions about law and policy would benefit from a straight-forward, integrated consideration of ethical implications of various choices we might make. Why? Because at bottom, our expectations about how human beings should behave derive from our most basic sensibilities—our affective, moral judgments, and all law can ultimately be distilled from this.
For example, ethical considerations are clearly implicated in the way in which political campaigns are financed. In my writing about the Supreme Court decision in Citizens United, the case in which the majority on the Court held that Corporations should be permitted to spend unlimited amounts of money on political advocacy, Justice Kennedy balanced First Amendment freedom of speech concerns against the concerns about the power of corporations with millions of dollars to spend for or against candidates who might advance corporate or industry objectives. Kennedy’s opinion referenced ethical considerations only implicitly. That is unfortunate. Consideration of the ethical basis for free speech might provide a clearer sense for what is at stake when we privilege that good at the expense of preventing corrupting influences in our political system. Similarly, corporate campaign spending should start with the question of what a corporation should and should not ethically be able to do to influence an election.
Ethical questions about law and policy invariably raise psychological questions. How is unethical behavior likely to shape attitudes or behaviors? What features of the environment influence people to behave ethically or unethically? How best can we encourage ethical practices? Under what circumstances do people behave unethically by strategically exploiting known cognitive or attributional tendencies. Even our thinking about ethics and the factors that determine whether we apply an ethical framework to legal problems are ultimately questions about human psychology.
I am looking forward to future discussions about behavioral legal ethics. I imagine that this forum will provide a rich source of thoughtful conversations, and hopefully, it will spotlight the many ways that behavioral and ethical considerations can inform law and policy.