Scholarship on legal ethics often turns to behavioral science to help explain the sources of misbehavior. Take, for example, the “Fundamental Attribution Error” (FAE), which is the established tendency to overestimate the predictive value of disposition (“personality” or “character traits”), rather than focusing on the power of situational forces in explaining misconduct. Many leading ethics scholars have described the power of FAE in ascribing blame. Here is one cogent explanation by Professor W. Bradley Wendel:
Another well documented feature of human psychology is the fundamental attribution error (FAE) – we tend to attribute the explanation of wrongdoing to character traits or dispositions, not features of the situation. Asked to explain the Milgram results, people will often say the subjects must have been sadists. The same effect can be observed outside the laboratory. Ask people for an explanation of the decision to launch the space shuttle Challenger, the collapse of Enron, the Abu Ghraib abuses, or the failure of the ratings agencies or the risky financial transactions leading up to the 2007 financial crisis, and you will probably hear an explanation in terms of the greed, dishonesty, or cruelty of key players – the “bad apples” account. It turns out, however, that the vast majority of participants are not bad apples, but are ordinary people whose ethical decisionmaking is subtly influenced by group dynamics such as in-group favoritism, pluralistic ignorance, induction effects that evaluate conduct in terms of previous similar actions, and subtle influences on the way people construe unfamiliar or ambiguous circumstances.
Wendel’s post on the “ingrained tendency” of the FAE, which can be found at Legal Ethics Forum (and recently republished by the Journal of Law), provides an excellent example of the phenomenon in action: he describes how the decision of the California Supreme Court to deny admission to practice law to Stephen Glass, the former journalist who was discharged from the New Republic for extensive plagiarism, has prompted unwarranted assumptions about the relative importance of Glass’s history of dishonesty. Wendel’s point is not that Glass automatically deserves admission to the bar, nor that Glass’s past misbehavior should be overlooked in assessing whether to grant him a bar license; rather, it is that the regulatory process that denied Glass his law license places too much emphasis on the types of fallacies in reasoning that the FAE can produce.
Other legal ethics scholars have also cited the FAE as part of their analysis. For example Professor Alice Woolley, who has written extensively about the application of behavioral science to legal ethics, describes here how the FAE can undermine the purported justification often articulated by bar regulators about the predictive value of past conduct. Once again, the variable that is missing from the analysis – and which is often overlooked in bar admission decisions – is the power of the situation in influencing behavior (update: for more on Woolley’s work regarding the power of situational factors, see this earlier post).
This is not to say, of course, that situational forces necessarily determine behavior. After all, as Professor David Luban points out, one-third of study participants in the famous Milgram experiments did not comply with the demands of experimenters to continue shocks all the way to “xxx.” And while there is debate about whether Luban appropriately accounts for situational forces in his theory of legal ethics, he does recognize the powerful pull of the situation, noting “how difficult – but not impossible — swimming against the situational tide is.” Legal Ethics and Human Dignity, p.284. (For a detailed discussion of the interrelationship between personality, disposition and situational forces, see Woolley and Wendel’s jointly authored article, “Legal Ethics and Moral Character,” in GJLE).
Teaching students about the FAE may be one of the most important tasks of Behavioral Legal Ethics. As usual, an excellent teaching tool can be found at Ethics Unwrapped:
And here is a wonderful video clip of a conversation with Richard Nisbett and Lee Ross, the researchers who first articulated the FAE:
(note: this video is part of an excellent MOOC, called “Think101x The Science of Everyday Thinking,” available free of charge, with great video resources, on EDx).
To explore these issues in more depth, two of the best sources available are Lee Ross and Richard Nesbitt, The Person and the Situation: Perspectives of Social Psychology (1991) and John M. Doris, Lack of Character (2002).