The CLE of BLE

Two of the audiences for this blog are teachers of legal ethics who want to explore the behavioral aspects of ethical decision-making with their students and practicing attorneys who grapple with ethical decisions. For the former group, recently I culled from our archives blog posts that might be of interest. Finding ways for the latter group to access relevant material can be more difficult — after all, practicing lawyers tend to be quite busy and learning about a new field, especially one that is inter-disciplinary, has its challenges. This is why I am thrilled to learn about what looks like an excellent CLE program on the subject, sponsored by the Texas Center for Legal Ethics, entitled “Your Brain on Ethics: How That Thing Between Your Ears Can Lead You Astray” (for a description, see Your Brain on Ethics — course description — April 2019).

This program caught my eye for two reasons (in addition to its catchy title). The first is that the faculty involves a leader in the field of behavioral science scholarship and pedagogy, Professor Robert Prentice, who is Department Chair, Business, Government and Society, at McCombs School of Business, University of Texas at Austin. For those not familiar with Professor Prentice’s work, I commend his long list of publications on behavioral science and decision-making, including his more recent work about behavioral ethics pedagogy (listed in this post).  In addition, Professor Prentice is a founder of Ethics Unwrapped, one the best resources available for teaching behavioral ethics (I guest blogged for Ethics Unwrapped a few years ago).

The second reason that this CLE program caught my eye is that it includes an excellent written overview of the field of Behavioral Legal Ethics, entitled “Ethical Decision Making, Fast and Slow,” which is now publicly available here.  The summary includes a description of the role of Systems 1 and 2 processing, as well as the many situational factors and cognitive and motivational biases that can produce unintended unethical behavior. For anyone looking for an introduction to the field, this is a wonderful place to start.

This program will next be presented at the Texas Health Law Conference on October 8, 2019, for anyone who might be interested.

Update:  9/12/19: Here is the Table of Contents for the written materials for “Ethical Decision Making, Fast and Slow”:

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Scholarship Update

Professor Seymore

An interesting application of the research on behavioral ethics to adoption lawyers: Malinda L. Seymore, Ethical Blind Spots in Adoption Lawyering, University of Richmond Law Review (2019), Forthcoming.

 

Here is the abstract:

Lawyers engaged in adoption work often call it “happy law,” and consider adoption – finding a child for yearning parents, finding parents for a needy child – an unmitigated good. That attitude can mask the fact that all adoption begins with loss. One family loses a child so that another family can gain one. A lawyer’s assurance that she is engaged in positive work can lead to ethical blind spots that ignore the complexities of adoption practice. And while the touchstone of adoption is the best interests of the child, the primacy in legal ethics of the interests of the client, who is rarely the child, skews that focus. This article discusses ethical issues relevant to adoption attorneys, centering on the Model Rules of Professional Conduct most applicable to adoption practice, as well as the lessons from behavioral ethics that inform the ethical blind spots common in the practice. Rules relating to competency and confidentiality, conflicts of interest and dual representation, and the lawyer’s role as counselor are particularly germane. Since legal ethics can be both descriptive and normative, this article addresses both what the ethical requirements of professional responsibility are, and what they should be in adoption practice. This article sketches the contours of ethical lawyering in adoption in order to shine light on the ethical blind spots adoption attorneys should avoid, and to suggest some solutions from behavioral ethics to eradicate blind spots.

Teaching Behavioral Legal Ethics: A Blog and Literature Review

As we head into a new semester, I thought it would be a good time to cull from our archives blog posts that are helpful to teaching Behavioral Legal Ethics. Here is my list, with links for those who are interested:

In addition, there is growing scholarship about the pedagogy of Behavioral Legal Ethics. I have started a bibliography, broadening it to include behavioral ethics and psychology/legal education more generally. Here is my initial list (in addition, I would encourage anyone teaching BLE to be familiar with its foundational scholarship, starting with Behavioral Legal Ethics). Please let me know if there are other articles on BLE pedagogy that should be included (I can be reached at teldred@nesl.edu). Thanks!

Behavioral Legal Ethics:

Scholarship Update

New article of interestNancy B. Rapoport & Joseph R. Tiano Jr., Legal Analytics, Social Science, and Legal Fees: Reimagining “Legal Spend” Decisions in an Evolving Industry, 35 Ga. St. U. L. Rev. (2019).

This article, co-authored by Professor Nancy Rapoport, who has written extensively about Behavioral Legal Ethics, discusses “how legal analytics can help law firms and clients understand, monitor, and improve the components that comprise bills for legal fees and expenses.” Part II of the paper surveys some of the behavioral reasons — including anchoring, social pressure and cognitive dissonance — that can influence the costs of legal services. Download it from SSRN here.

Summer Fun with Illusions (and a metaphor to boot!)

As August moves slowly toward the beginning of the school year, I find myself thinking about teaching legal ethics in the new semester.  As I discussed in my paper on the subject, when I teach Behavioral Legal Ethics I start by showing my students a few visual illusions, just to get them thinking about the limits of perception. My favorite, which I show in video form, is the Checker Board Illusion. Here it is for those not familiar with it:

As I was tinkering around with Twitter today, I came across another illusion, which is a must see. I have no idea how it works, but that it does is amazing. Here it is (and quite a metaphor for our times, I might add!):

 

 

The Technological Future of Behavioral Legal Ethics?

The advent of Virtual Reality (VR), and the more recent exploration of Augmented Reality (AR), is creeping forward in law schools, with only a handful of schools experimenting with the technology, according to a recent article in the ABA Journal. As the article notes, Virtual Reality, for those not familiar with it, “involves the use of computer technology to create a simulated environment, immersing a user in a 3D experience.” Augmented Reality, which has received a lot of media attention since the release of the game Pokémon Go, is largely still in its infancy and, according to one source, refers to technology that “superimposes computer-generated images on a user’s view of the real world, thus providing a composite image.”  Announcements of new releases in the AR field, especially of Microsoft’s Hololens 2, have created excitement about the potential for more interactive immersive experiences for the user in the future.

I have been interested (from afar, as I am no expert) about the use of this technology for law school pedagogy, so it’s gratifying to see that some schools have already started to experiment.  As the ABA Journal notes, for instance, students at University of North Texas Dallas College of Law have used VR technology to stage a 360-degree crime scene.  And the University of Oklahoma has created the Oklahoma Virtual Academic Laboratory “to provide students with technologically advanced immersive education experiences.”

But what about technology and legal ethics? As those of us involved with behavioral legal ethics know, much of our work is about exploring the gap between deliberative consideration of the rules of legal ethics, which dominates much of legal ethics pedagogy, and the ways that people actually make ethical decisions, as demonstrated by the large and growing body of behavioral ethics research. Can VR and AR technology help our students (and lawyers in CLE programs) experience the power of cognitive biases and heuristics, and the social pressures that contribute to unethical behavior, in ways that traditionally have been unavailable in legal education?

Professor Sylvie Delacroix from Birmingham Law School recently posted a co-authored paper (forthcoming in Modernising Legal Education), entitled Virtually Teaching Ethics: Experiencing the Discrepancy between Abstract Ethical Stands and Actual Behaviour using Immersive Virtual Reality, that wonderfully encapsulates this discussion and explores the possibilities of Immersive Virtual Reality (IVR) and similar approaches in the future in ethics education. The first part of her paper reviews the dichotomy between System 1 and System 2 thinking, citing leading researchers on the difference between intentional and unintentional responses to ethical dilemmas:

“It is often assumed that when faced with an ethical dilemma, individuals recognise it for what it is and respond to it intentionally, preferably (in the case of law) by applying the relevant rules of conduct. However, unethical behaviour often arises without intention to act unethically, either because an individual is unaware of the situation or unaware of the contextual influences. These ‘blind spots’ mean that being taught the rules of conduct is unlikely to improve ethicality. Most people routinely fail to recognise the ethical components of decisions and succumb to common cognitive biases; as a result many responses to ethical dilemmas are characterised by ignorance rather than intention” (p. 5-6).

Professor Delacroix then connects these observations to the limitations of current ethics instruction, noting that “[t]he failure of students to see when they are personally prone to ethical blind spots produces a key challenge for ethics education, that of ‘inducing students to act in an ethical manner when faced with real challenges’” (p.9).

Then — and this is what I find most fascinating — Professor Delacroix describes a module that she designed for teaching her legal ethics class of LLM and LLB students, in which the students engaged with IVR to experience a difficult ethical decision in a simulated environment at University College London. As she describes it,

“At an early stage within both modules (week three) students were given the opportunity to experience the CAVE – the highly IVR environment managed by the University’s Computer Science Department. The CAVE projects images in real-time onto the surrounding walls and the floor. Specialised eyewear gives users the illusion of 3D objects appearing within and beyond the walls of the CAVE, whilst a head-tracking unit monitors movement to ensure the images displayed remain in the correct perspective.” (p.12-13).

The ethical dilemma posed in the CAVE involved a variation of the well known Trolley Problem, this time involving an elevator ride in which participants must decide whether to sacrifice one life in order to save five. Students who participated voluntarily in the IVR experience, on the whole, reported it to be positive. Many of the students also noted — and for me this is the key to this type of pedagogy — that their actual reactions during the CAVE experience differed from how they thought they would act when considering the question more theoretically prior to the immersive experience. In other words, the students learned how their anticipated ethics and actual ethics often do no align — the key insight that behavioral ethics has to offer.

Professor Delacroix’s work demonstrates that teaching legal ethics through IVR technology is possible. While there are still obstacles to overcome (the technology still needs to advance and the relative merits and possible downsides of using IVR technology in the classroom need to be considered), we might be seeing in Professor Delacriox’s work the future of ethics education — a future where students will be able to experience and explore the multifaceted, three-dimensional nature of ethical decision-making in real time. An exciting prospect indeed!

Here is the abstract of Professor Delacroix’s article:

The CAVE experience is an immersive virtual reality (IVR) environment employing high- resolution, 3D video and audio technology. Using the CAVE, researchers at University College London designed an IVR scenario intended to echo the logical structure of a traditional ‘trolley scenario’ problem, and deployed this activity within an undergraduate Law and Ethics Course. In this chapter we explore how the use of virtual reality can offer students an unparalleled opportunity to reflect on the dissonance between the behaviour they adopt when faced with an ethical dilemma, and the theoretical stance they propose during class discussion. We explore how this personalisation gives rise to sustained student engagement borne out of a desire to understand the discrepancy between principle and practice. Our chapter considers the potential of IVR technology when teaching ethics to future and current professionals. We conclude by considering how such technology can offer more dynamic opportunities for student reflection and how IVR might be sensibly integrated into a broader legal ethics curriculum.

(update, 8/4/19: For anyone interested in the use of VR to re-consider classic experiments in social psychology, here is a fascinating paper discussing VR and the famous Milgram experiments on obedience.  And here is short blog post in Scientific American about the study).

 

Promotional Video for Motivating Reasoning and Legal Ethics

Here is the new promotional video for the Practising Law Institute’s interactive video program, Motivated Reasoning and Legal Ethics:

For more details about the program, including how law professors can gain access to use the video free of charge for classroom teaching, see our prior post here.