Behavioral Legal Ethics and Accurate Science

In my article on teaching behavioral legal ethics, I noted that as teachers we have an obligation to remain atop of the science in the field to make sure that we impart the most accurate and up-to-date scientific understandings to our students. This duty has become all the more important given the debate over what has been called the “replication crisis” — that is, the extensive discussion in the field of psychology (as well as other sciences) about whether the effects in many studies have been overstated or, in some cases, are non-existent. A number of methodological questions have been raised, including whether researchers have engaged in what is referred to as “P-hacking” – that is, manipulation of data to produce effects. This provocative topic was recently discussed in the New York Times Magazine’s cover article, When The Revolution Came for Amy Cuddy.  Even Nobel Award winner Daniel Kahneman (author of Thinking Fast and Slow) has notably weighed in, stating in an open letter that a sub-field of social psychology known as social priming has become “the poster child of doubts about the integrity of psychological research.”  More recent questions about the replicability of psychology research have also emerged.

The challenge for the legal community – at least those of us who do not rely on our own empirical research – is to ensure that we teach our students accurate science. Yet, how does one know whether previously reported studies that have been called into question should still be taught, or what provisos should be provided to students as part of our instruction?

In my professional responsibility class, for instance, in past years I have discussed (on our class blog) money priming, relying on the considerable research that demonstrates that priming people with thoughts of money can increase anti-social behavior. I usually alert my students to these studies and ask them to consider how these results might impact their ethical choices as practicing attorneys, as well as the career choices they plan to make after graduation.

In the last few years, however, there has been a debate about whether the research on money priming is as dependable as has been claimed. One set of researchers, for example, was unable to replicate some of the most well-known studies in the field, leading to questions about whether money priming even occurs. A rejoinder, based on a 10-year review of experiments, posited alternative explanations for the failures of replication, concluding that the vast majority of studies in the field still demonstrate money priming effects.

Given these competing views about the research, what should one do? One approach would be to avoid the entire subject until the dust settles and a new consensus emerges.  I may take this approach next semester when I teach professional responsibility, as money priming is a relatively narrow topic that I teach as a small portion of my overall discussion of behavioral legal ethics. Or I may decide to engage my students in the debate, exposing them to the competing research claims and encouraging them to come to their own conclusions about how to consider the state of the science.

Either way, this example reinforces how essential it is to stay abreast of the science in the fields in which we teach. After all, behavioral legal ethics is only as stable as the science upon which it rests.

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