Programming Note #2

The trailer for Dan Ariely‘s upcoming film, (Dis)Honesty – The Truth About Lies, is now available:

For more information, visit the (Dis)honesty Project website.

Teaching BLE: Ethical Fading

In my survey course on legal ethics, I created a blog (accessible only to my students) to address many aspects of Behavioral Legal Ethics.  A few people have asked me about the content of the blog, so here’s a sample that focuses on Ethical Fading (which Jim Milles recently discussed).  I’d be interested in any thoughts or comments.

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Ethical Fading

A significant factor in producing unethical behavior is called “Ethical Fading.”  Here is a nice introduction from Ethics Unwrapped.

Essentially, ethical fading refers to the cluster of techniques — many of which occur unconsciously — that we use to delude ourselves about our own ethicality.

You may recall that Behavioral Legal Ethics (BLE) discusses ethical fading on pages 1120-24.  For an excellent overview, read this Op-ed from the New York Times; and for a much more detailed explanation, here is a seminal article by two of the leading researchers, Ann Tenbrunsel and David Messick.

This is a theme we will return to quite often, as it involves many different components — including the role that emotion plays in ethical decision-making, how decisions are framed, the language we use to free ourselves from morally difficult decisions, the ease with which we engage in self-deception (often by failing to make proper casual connections between our actions), and the slippery slope of small ethical transgressions into bigger ones — just to name a few.

For now, let’s focus on two related aspects of ethical fading — the idea that the way an issue is framed* matters, as well as the language used to describe the situation.

Let’s start with an example of framing:  have you ever heard of the famous Pinto case, where Ford produced a car with a gas tank in the back that was susceptible to exploding in low speed collisions?  Here’s a short video (including footage of a crash!) about the case:

 

After numerous deaths and injuries occurred, the question was why didn’t Ford prevent the defect in the first place, or at least recall the cars to fix them? Behavioral ethicists see this as a classic case of ethical fading.  According to a Ford field manager, the company employed an economic cost-benefit analysis in deciding whether to address design flaws — viewing the issue as only a business decision (assessing the frequency of the collisions to determine if a recall was needed) rather than an ethical one (assessing the human cost of injuries and deaths from the faulty design).  Here’s how the manager who was in charge of recalls described his own experience:

My cue for labeling a case as a problem either required high frequencies of occurrence or directly-traceable causes. I had little time for speculative contemplation on potential problems that did not fit a pattern that suggested known courses of action leading to possible recall. . . . I remember no strong ethical overtones to the case whatsoever. It was a very straightforward decision, driven by dominant scripts for the time, place, and context (BLE at 1121).

 In other words, the ethical dimension of the decision just faded away . . .

The language we employ also can reduce or eliminate the ethical dimensions of a question.  Do you think that calling a bombing mission during war a “surgical strike,” or describing civilian casualties that result as “collateral damage,” makes it easier to overlook the ethical difficulties involved?  Here is how one leading scholar explains the role that euphemisms play in moral disengagement.

The Godfather (1972)

Even famous movies help explain this phenomenon — anyone remember how Michael Corleone described the murderous ways of his crime family in The Godfather? . . .

“It’s not personal . . . It’s strictly business”

  
How might these factors influence ethics in action for lawyers?  One obvious place to start is with the same type of business frame that occurred in the Pinto case.  Can you imagine how a corporate lawyer might become overly focused on helping a business promote its business goals, thus reducing or eliminating the need to consider the ethical aspects of decisions that are made? What about lawyers as “gatekeepers” under Model Rule 1.13 (a rule we will be discussing later in the semester) who are  required to report to their superiors when they encounter certain forms of misconduct?  There is significant legal scholarship on how these lawyers too often succumb to their clients’ business demands.  Is part of this explanation that the frame the lawyers have adopted essentially fades away the ethical dimensions of the problems they face?

What about the language lawyers employ?  Is it easier to think about “rounding up” on hourly billing than it is to call the same practice “stealing” from a client?  How about when lawyers “coach” a witness.  Would there be more sting if it was called “telling a witness to lie”?  How many other examples can you think of?

[*NB for #BLEBlog readers:  Framing as a core aspect of ethical blindness is explained in detail in the article written by Professors Guido Palazzo and Ulrich Hoffrage from the University of Lausanne, which I blogged about recently; their Coursera MOOC also does an excellent job of discussing its importance]

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Athletes, Domestic Violence, and Sources of Prosecutorial Bias

Recently, the National Football League has come under scrutiny for its response to revelations about domestic violence committed by players. Most of the criticism has fallen squarely on the shoulders of NFL commissioner Roger Goodell; he has been maligned for acting slowly or not at all to suspend players following evidence of domestic abuse. For those of us who think and write about ethical lawyering, the focus is often elsewhere—on a prosecutor’s decision to investigate and charge football players and other professional athletes when evidence of violence surfaces. Do athletes and other high profile figures receive special treatment? It is an empirical question that is difficult to answer. Part of the reason for this is that the answer is complicated by the degree to which an incident has received media attention and resulting public pressure. Public outcry is often a precursor to charges being filed in a well-publicized case. In cases where athletes appear to be receiving special treatment, there is often cynicism about the motivations of those making charging decisions. However, empirical work tells us that various cognitive features of human choice may be at least part of the problem. Below is a compilation of several relevant biases:

Cognitive Dissonance: Leon Festinger coined the term “cognitive dissonance” to describe the human need for internal consistency. When an individual holds two or more contradictory beliefs, dissonance is experienced, and the individual becomes psychologically uncomfortable. This discomfort leads the individual to attempt to reduce the dissonance by changing one of the internal states. This can be accomplished by altering behavior, by changing an attitude, or by rejecting some information that contradicts previously held beliefs.

Halo Effect: The halo effect is the name for a cognitive bias in which an observer’s overall impression of a person influences the observer’s interpretation of novel information about the person’s character. Edward Thorndike first identified this effect. The halo effect is related to the confirmation bias, wherein individuals look for and selectively accept information that confirms existing beliefs. The halo effect causes individuals who have favorable impressions of a person to interpret ambiguous information about that person in a positive light.

Belief Perseverance: This bias, also related to the confirmation bias, is a psychological phenomenon in which a person clings to previously held beliefs, even when new evidence sheds doubt on the early-formed attitudes.

Bias Blind Spot: The bias blind spot relates to the failure of human beings to compensate for their own cognitive tendencies. Emily Pronin, Daniel Lin and Lee Ross adopted the term “blind spot” to describe the inability of individuals to perceive their own biases (even while acknowledging that the biases influence others). Research reveals that even when individuals are educated about the existence of biases, such as the halo effect and confirmation bias, they nevertheless claim to be significantly less vulnerable to these biases than the average person.

Professional athletes tend to be admired. The popularity of the NFL (thirty-four of America’s thirty-five most-watched 2013 fall TV shows were NFL games) means that this is particularly true for players in this league. The Halo Effect describes how this positive impression can make it more likely that prosecutors and other actors in the criminal justice system will interpret ambiguous information in a way that is consistent with players conforming to the law. Research on belief perseverance tells us that the image of football players as respectable role models decreases the likelihood that contradictory information about players will be accepted. Relatedly, cognitive dissonance explains why observers might reject information that sheds a negative light on football players. Finally, the bias blind spot suggests that those in charge of evaluating information about players are—like other human beings—naive about their own biases.