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.

 

 

 

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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.

Scholarship Update

UnknownAnyone who is interested in ethical decision-making by in house counsel now has an exhaustive new study on which to draw. Entitled In House Lawyers’ Ethics:  Institutional Logics, Legal Risk and the Tournament of Influence, the book  is co-authored by Richard Moorhead, Stephen Vaughn and  Cristina Godinho.

 

Here is the abstract:

This book provides an empirically grounded, in-depth investigation of the ethical dimensions to in-house practice and how legal risk is defined and managed by in-house lawyers and others. The growing significance and status of the role of General Counsel has been accompanied by growth in legal risk as a phenomenon of importance. In-house lawyers are regularly exhorted to be more commercial, proactive and strategic, to be business leaders and not (mere) lawyers, but they are increasingly exposed for their roles in organisational scandals. This book poses the question: how far does going beyond being a lawyer conflict with or entail being more ethical? It explores the role of in-housers by calling on three key pieces of empirical research: two tranches of interviews with senior in-house lawyers and senior compliance staff; and an unparalleled large survey of in-house lawyers. On the basis of this evidence, the authors explore how ideas about in-house roles shape professional logics; how far professional notions such as independence play a role in those logics; and the ways in which ethical infrastructure are managed or are absent from in-house practice. It concludes with a discussion of whether and how in-house lawyers and their regulators need to take professionalism and professional ethicality more seriously.

(for an excellent review of this book in JOTWELL by Professor Amy Salyzyn, see here).

Job Opportunity @ Ethical Systems

Ethical Systems, a leader in the field of behavioral science and business ethics, is seeking a new Executive Director. Readers of this blog know how often we cite to, and rely on, the work done by Ethical Systems. This is a fantastic opportunity to lead an organization that is at the cutting edge of behavioral science and ethical decision-making.

Here is the tweet announcing the position:

Scholarship Update

Professor Schaefer

Paula Schaefer, Associate Dean for Academic Affairs and Professor of Law at University of Tennessee College of Law, has posted a new paper, entitled Behavioral Legal Ethics Lessons for Corporate Counsel (forthcoming, Case Western Reserve Law Review, Vol. 69, No. 4, 2019).

 

Here is the abstract:

This Article draws on legal ethics and behavioral science to explain what the corporate advisor should do, as well as what we have reason to believe he may do, when faced with a corporate client’s misguided—but potentially lucrative—scheme. Part I starts with the corporate lawyer’s consciously held conceptions and misconceptions about duty owed to her corporate client when company executives propose a plan that will create substantial liability for the company—when and if it is caught. This Part focuses on the legal ethics piece, without the behavioral science perspective, and discusses not only what the lawyer should know but what many falsely believe about their duty.

Then, Part II turns to behavioral science and highlights some of the key factors that corporate attorneys are unconsciously influenced by as they try to decide how (or if) to address client conduct that may amount to a crime or fraud. This discussion moves from attorney self-interest, to obedience and conformity pressure, and concludes with partisan bias. While numerous other biases, heuristics, and situational factors can subtly impact any person’s decision making, these are some of the most salient influences for the corporate advisor. Both the consciously held beliefs and unrecognized influences can combine to lead a well-meaning corporate attorney astray. Research reveals that many will fail to advise against corporate misconduct, and some will even become enthusiastic participants in that misconduct.

It is against this backdrop that Part III considers which interventions could lessen the risk of corporate attorneys providing poor advice to company agents on the brink of liability-creating conduct. Again, drawing on legal ethics and behavioral science, this discussion suggests the pressure points—from priming to education—that are most likely to result in positive changes in attorney advice. The Article concludes with thoughts on what corporate attorneys can learn from behavioral legal ethics in order to provide better advice to their corporate clients.

(Prof. Shaefer’s article was just profiled on the Conflict of Interest blog, a wonderful resource for discussion of behavioral ethics and other topics)

(update:  7/9/19: Prof. Shaefer’s article has also been profiled on Law360.com).

 

 

 

Must See TV (actually YouTube video)

Anyone interested in the psychology of negotiation is likely to be well acquainted with the scholarship of Professor Russell Korobkin, who is Vice Dean for Academic and Institutional Affairs and Richard C. Maxwell Professor of Law at UCLA Law School (for the breadth of his scholarship, see here). Professor Korobkin recently gave the 2019 Chris Beecroft Jr. Lecture at the UNLV William S. Boyd School of Law, entitled “Behavioral Ethics and Legal Negotiation.” The lecture provides a wonderful overview of the field of behavioral ethics and how it relates to types of ethical issues that arise during legal negotiations (as an added benefit, the lecture is introduced by Professor Jean Sternlight, Director of the Saltman Center for Conflict Resolution at UNLV Law School, whose work essentially co-founded the field of Behavioral Legal Ethics).

Here is the video:

UNLV_video

Scholarship Update

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Professor Fortney

Susan Saab Fortney, Professor of Law and Director of the Program for the Advancement of Legal Ethics at Texas A&M University School of Law, has posted an interesting paper, entitled Mandatory Legal Malpractice Insurance: Exposing Lawyers’ Blind Spots, which relies on behavioral research to help explain why lawyers fail to carry proper legal malpractice insurance.

Here is the abstract:

The legal landscape for lawyers’ professional liability in the United States is changing. In 2018, Idaho implemented a new rule requiring that lawyers carry legal malpractice insurance. The adoption of the Idaho rule was the first move in forty years by a state to require legal malpractice insurance since Oregon mandated lawyer participation in a malpractice insurance regime. Over the last two years, a few states have considered whether their jurisdictions should join Oregon and Idaho in requiring malpractice insurance for lawyers in private practice. To help inform the discussion, the article examines different positions taken in the debate on mandatory insurance and recent empirical research related to uninsured lawyers and legal malpractice litigation. The article focuses on arguments in favor of mandating insurance and considers approaches that may address particular concerns expressed by those who oppose requiring lawyers to carry professional liability insurance. The article also considers select alternatives to mandatory insurance. After concluding that mandatory insurance better promotes public and lawyer protection than the alternatives, the article examines reasons why decision makers fail to require that lawyers carry a minimum level of insurance. Drawing on ethics scholarship and behavioral psychology research, the article notes that individual uninsured lawyers may fail to see the consequences of their conduct because they have a blind spot. The conclusion also suggests that the bar and judiciary may suffer from a collective blind spot that contributes to lawyers and judges not seeing financial accountability as an ethics issue. The conclusion urges decision makers and insured lawyers to address the blind spots and promote their states joining Oregon, Idaho and countries around the world that recognize that financial accountability is a hallmark of an ethical profession.