What Asch’s Line Experiment Can Teach Us about Conformity and In-House Lawyers

Imagine that you have volunteered to participate in an experiment on visual judgment.  You, along with several other college undergraduates, file into a room in a psychology department and are shown various pictures of lines of varying lengths.  One after another, your fellow participants in the study respond to the question: “Which is the longest line?”  One after another, they give an obviously incorrect response.  The time comes for you to provide an answer.  What do you say?

This is the experiment that was conducted by Solomon Asch in 1951 at Swarthmore College.  Asch hypothesized that when confederates (fake participants) uniformly gave a particular response in a group setting, the lone true participant would feel pressure to conform to the group consensus.

Asch was correct.  Over the course of twelve critical trials, 75% of the true participants conformed to the incorrect majority at least once.  On average, there was a 32% rate of conformity, in spite of the fact that there was no real consequence for failing to conform and the answer given by the majority was clearly incorrect.

Why did the participants conform? Later work hypothesized that individuals go along with a majority for normative, reputational, and information reasons.   In other words, the group sets the standard for what behavior is appropriate (normative), the individual wants to be seen as fitting in (reputational), and the individual takes cues from the group regarding the true state of the world (informational).

Interestingly, the effect seems to dissipate when the group is small (four or fewer) and when the target has at least one other person who deviates from the group.

Lately, I’ve wondered how this very human proclivity influences attorneys who are “in house”.  A number of well-publicized cases of misconduct on the part of in-house counsel bring this question to the forefront.  Recently, Donald Langevoort, from Georgetown University  wrote the following in the Wisconsin Law Review: “[T]he most powerful effect is probably cultural, when the lawyers develop a sense of identity that is tied as much or more to their status as key employees as to their status as professional attorneys. This is a visceral process, generating the kind of loyalty that results from bonding experiences early on and, over time, being caught up in the competitive arousal and sense of corporate mission. It means bringing lawyers into the corporate team.”  Whether the process is “visceral” is a matter of debate.  But without question, it is a psychological process—with evolutionary roots—which is driven by a human need to associate closely with members of ones species who are most likely to protect and provide for the individual.  What is pack behavior in wolves is “herd behavior” in humans, at least it is to psychologists who study it.  When attorneys serve the important role of gatekeeper for a variety of corporate activities and functions, the human tendency to conform to what the majority deems good, right, or in the best interests of the firm can be a powerful force.  Even for the casual observer of human behavior, it should be unsurprising that attorneys in this position feel pressure to violate rules of ethics for the benefit of the corporate bottom-line.  This is not to suggest that all, or even most in-house lawyers behave badly.  Rather, behavioral research tells us that the impulse to acquiesce to serve the common good is both fundamentally adaptive, and irrepressibly human.  Perhaps it is time to use what we know about conformity, starting with research that is more than 60 years old, to identify strategies to encourage compliance with rules of ethics, even when pressures are overwhelming.

While executives of corporations have good reason to incentivize loyalty, psychological theory tells us that best ethical practices are encouraged when in-house lawyers feel a connection to other lawyers who have similar professional ethics training.  Encouraging in-house lawyers to make contact with lawyers outside the company is one way to increase feelings of connectedness between the in-house lawyer and other members of the legal profession.  Relationships that occur outside of the corporation can lessen pressures resulting from an insular existence, in which the corporate culture is the lawyer’s entire professional world.  These relationships can also enforce ethical norms and can encourage in-house lawyers to remember and comply with ethical rules.  Perhaps it makes sense to consider developing new avenues for in-house lawyers to meet and work with other legal professionals who will promulgate accepted ethical standards.

For more reading, please see:

Click to access A_SECAttyConductRules1004.pdf

Click to access 9-Langevoort.pdf

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What Asch’s Line Experiment Can Teach Us about Conformity and In-House Lawyers

Imagine that you have volunteered to participate in an experiment on visual judgment. You, along with several other college undergraduates, file into a room in a psychology department and are shown various pictures of lines of varying lengths on one side, and a single line on the other side. One after another, your fellow participants in the study respond to the question: “Which line on this side most closely matches the line on the opposite side?” One after another, they give an obviously incorrect response. The time comes for you to provide an answer. What do you say?

This is the experiment was conducted by Solomon Asch in 1951 at Swarthmore College. Asch hypothesized that when confederates (fake participants) uniformly gave a particular response in a group setting, the lone true participant would feel pressure to conform to the group consensus.

Asch was correct. Over the course of twelve critical trials, 75% of the true participants conformed to the incorrect majority at least once. On average, there was a 32% rate of conformity, in spite of the fact that there was no real consequence for failing to conform and the answer given by the majority was clearly incorrect. Why did the participants conform? Later work hypothesized that individuals go along with a majority for normative, reputational, and information reasons. In other words, the group sets the standard for what behavior is appropriate (normative), the individual wants to be seen as fitting in (reputational), and the individual takes cues from the group regarding the true state of the world (informational). Interestingly, the effect seems to dissipate when the group is small (four or fewer) and when the target has at least one other person who deviates from the group.

Lately, I’ve wondered how this very human proclivity influences attorneys who are “in house”. A number of well-publicized cases of misconduct on the part of in-house counsel bring this question to the forefront. Recently, Donald Langevoort, from Georgetown University wrote the following in the Wisconsin Law Review: “[T]he most powerful effect is probably cultural, when the lawyers develop a sense of identity that is tied as much or more to their status as key employees as to their status as professional attorneys. This is a visceral process, generating the kind of loyalty that results from bonding experiences early on and, over time, being caught up in the competitive arousal and sense of corporate mission. It means bringing lawyers into the corporate team.” Whether the process is “visceral” is a matter of debate. But without question, it is a psychological process—with evolutionary roots—which is driven by a human need to associate closely with members of ones species who are most likely to protect and provide for the individual. What is pack behavior in wolves is “herd behavior” in humans, at least it is to psychologists who study it. When attorneys serve the important role of gatekeeper for a variety of corporate activities and functions, the human tendency to conform to what the majority deems good, right, or in the best interests of the firm can be a powerful force. Even for the casual observer of human behavior, it should be unsurprising that attorneys in this position commit ethical violations in the form of acts or omissions for the benefit of the corporate bottom-line. This is not to say that most lawyers who take up residence in corporate environments violate ethical rules and norms. Rather, behavioral research tells us that the impulse to acquiesce to serve the common good is both fundamentally adaptive, and irrepressibly human. Perhaps it is time to use what we know about conformity, starting with research that is more than 60 years old, to more effectively identify strategies that encourage compliance with rules of ethics, even when pressures are overwhelming.

Judge Rakoff Raises Questions about Prosecutorial Ethics and Guilty Pleas

Federal District Court Judge (NY-Manhattan) Jed Rakoff offered some provocative thoughts about the pressures facing targets of criminal investigations and the role prosecutors play in creating strong incentives to accept plea deals.  As a judge and former defense attorney, Rakoff has a long history of observing the criminal justice system in action.  Among other things, he offered this comment:

Plea bargains have led many innocent people to take a deal.  People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.

More of Rakoff’s thoughts on this topic can be found at USC News and Sentencing Law and Policy (Law Prof Blogs Network):

http://news.usc.edu/61662/why-innocent-people-plead-guilty/

http://sentencing.typepad.com/sentencing_law_and_policy/2014/04/why-innocent-people-plead-guilty-judge-jed-rakoff-suggests-tens-of-thousands-of-innocent-people-have.html

Lessons from the Stanford Prison Experiment

Lately I’ve been giving a lot of thought to how the classic social psychology experiments can inform our understanding the attitudes and behaviors of lawyers–particularly criminal defense lawyers–toward their clients. So, I’ve decided to do a blog series exploring each of several of these classic social psychology experiments and their implications and lessons for criminal defense lawyering.

The first I will discuss is the somewhat infamous Stanford Prison Experiment. The Stanford Prison Experiment was conducted in the summer of 1971 at Stanford University by Philip Zimbardo and his colleagues. The experimenters had planned a two week experiment simulating a prison environment using college students. However, they had to shut down the experiment prematurely after only one week because of the cruelty of some of the “prison guards” and the extreme distress experienced by some of the “prisoners.” Zimbardo his colleagues started by putting an advertisement in the local newspaper. They asked for volunteers to participate in an experiment I would pay $15 a day. The experimenters carefully screened all applicants in order to assess their psychological health. Any applicant who appeared to be emotionally or psychologically compromised in anyway was not selected. In the end, they chose twenty-four participants. The determination of who would be prisoner in who would be prison guard was made by a flip of a coin. The experimenters created a prison like environment in the basement of the psychology department at Stanford University. Their efforts to create a realistic “prison” environment were significant. In fact, they replaced the standard laboratory doors with doors with bars. Other aspects of the experiment were designed to be realistic as well. The “prisoners” were initially rounded up The help of the Palo Alto Police Department. They were arrested, handcuffed, and taken to the police department, where they were fingerprinted. There, they waited he be taken to the experiment location. Once there, a variety of things happen to them that were carefully designed to mimic that which would happen to a real prisoner. For example, they were stripped naked and deloused and they were given special prison garb that was designed to degrade them and to set them apart from the prison guards. The prison guards also were dressed carefully so as to be as realistic as possible. They were given uniforms and reflective sunglasses such as those that you might see in a classic Hollywood cop movie. The experiment participants who were playing the role of prison guard were permitted to use whatever force or practices they deemed necessary to keep control of the prisoners. Over the course of the first day or two, these “guards” became increasingly comfortable engaging in practices designed to display dominance, such as forcing the prisoners to perform push-ups, and waking them in the middle the night for head counts. On the morning of the second day, in response escalating force and punitive practices on the part of the guards, the prisoners rebelled. They tore off their numbers and barricaded themselves inside their cells. They also begin to taunt the prison guards. In an effort to put down the rebellion, the prison guards called in reinforcements–other prison guards who had been on break at the time. Eventually, the guards increased their dominant behavior, engaging in a series of tactics over a period of days that were degrading, humiliating, and thoroughly broke down the would-be prisoners. In fact, a number of prisoners were found sobbing in their cells and had eventually to be released. Perhaps most interesting, the psychologists–including Zimbardo himself–got caught up in the role play, taking on the role of prison wardens, and initially refusing to release participants who were clearly at a breaking point. When various prisoner participants displayed evidence of serious psychological distress, the experimenters, rather than fulfilling their ethical obligation to treat and release them, resisted letting them go. Other parties, including parents who came to visit their “prisoner” children and a priest who was brought in to counsel the prisoners, fell into their roles perfectly. At no time did these outsiders question the experiment, nor did they argue for release of the participants.

Forty years after the fact, what lessons can we take from this experiment? When it comes to the relationship between a criminal defendant and his lawyer, the experiment may shed light on how roles affect attitudes and decision-making of the lawyer. In our criminal justice system, the criminal defense lawyer is the defendant’s greatest ally; the lawyer is her client’s advocate, and is in the best position to help the defendant-client. An important part of advocacy is respecting–or at least valuing the client. The more the lawyer views her client as dangerous or deviant, the more difficult zealous advocacy becomes. In a very real sense, the extent to which the attorney perceives her client as worthy of effort, the harder the attorney will fight for him. Accordingly, the lawyer’s attributions about the defendant ultimately influence the disposition of his case. To what extent do various aspects of the criminal justice system interfere with the relationship of a defendant-client with his lawyer? Does the jail or prison environment contribute to a degradation in this very important relationship? Do criminal defense attorneys experience an us-versus-them mentality similar to that developed in the Stanford Prison Experiment? Or was the attitude of the “guards” a function of the job these participants were given to “control” the “prisoners”? Perhaps the results of the experiment were unusual, an outlier. Or perhaps they apply only to prison employees — in which case we have a problem, but not with the attorney-client relationship.

The Stanford Prison Experiment should give us pause. We ought to use the results as a starting point for important conversations about how obstacles to effective lawyers for criminal defendants exist today. Public defenders are over-worked and under-resourced. We are accustomed to having that conversation. But perhaps there are even more insidious factors at play. The students who were playing the role of prison guard knew, to a certainty, that the participants were playing prisoners were not actually guilty of any crime. Now imagine the mentality of a criminal defense lawyer who has seen criminal defendants repeatedly plead guilty to charges. Imagine also that this criminal defense lawyer represents mainly in the indigent defendants, and is more often than not face with a situation in which resources for investigating the charges are scarce or nonexistent, making discovery of shoddy police work. mistaken identity, or mitigating factors difficult to discern. What happens to the presumption of innocence in the eyes of the one person who is appointed to fight for the rights of that defendant? If criminal defense lawyers struggle to overcome the biasing factors that can influence their attitudes about their clients, they can hardly be blamed. As Zimbardo and his colleagues taught us several decades ago, this is only human.

McCutcheon and Ethical Campaigns: The Behavioral Case for Funding Limits

Wednesday’s Supreme Court ruling in McCutcheon v. Federal Election Commission, the case in which the Court considered existing limits on an individual’s ability to contribution to political candidates, struck down overall financial contribution limits to political candidates, and aggregate limits to political parties. The holding was yet another blow to sensible regulation of money to influence elections, with echoes of the Court’s controversial ruling in Citizens United, four years ago. The Court’s definition of money as speech is sufficiently established that it is rarely seriously debated. But the most recent holding again raises the issue of how to define “corruption.” This definition is critical, because corruption is the only consideration accepted by the Court as legitimate in balancing against the free speech concerns raised by limiting campaign donations. The conservative bloc on the Court has again narrowed the definition of corruption, so that only quid-pro-quo, or the literal exchange of dollars for votes counts. Any other form of corruptive influence–the unequal exercise of power, the imbalance in the ability to communicate ideas, and the potential for wealthy donors to hold candidates and law makers hostage with the threat or inducement of campaign money–has been soundly rejected as a basis for regulation. Not only does McCutcheon threaten to increase the influence of wealthy donors over members of congress, it also makes in more likely that wealthy patrons can influence voters to elect their preferred candidates. Today, with the advent of so many modes of communication, the proliferation of political consultants, the dissemination of empirical research on how to strategically craft messaging to influence attitudes, the concern is that these dollars buy the ability to distort voters’ decision-making. More money in elections means the potential for an increase in the use of techniques such as framing, priming, anchoring, and the inducement of emotions such as fear to influence citizen attitudes. Political scientists, psychologist, law scholars, and communication specialist understand this potential. Americans without any particular expertise in this area perceive the pernicious influence of campaign money. Why doesn’t the majority on the Court?

A Journey from Psychology to Law to Ethics

I didn’t start out asking questions about ethics. I started out wanting to study how humans’ behaviors affected other humans’ behaviors. That’s how I ended up in a PhD program in Social Psychology at the University of Virginia. I was enthralled with the work I did while I was in that program, particularly when I became involved with research in social cognition. But I had little patience for the myopic approach to the application of the findings. We seemed content with research that was relevant only in the bowls of Gilmer Hall, where the psychology faculty, graduate students, and undergraduate research assistants met weekly to discuss on-going and future research studies. I was acutely aware that a study on the helping behavior of 146 college undergraduates under high and low cognitive load was only interesting to other psychology PhDs, unless we could make a case that it mattered, I mean, it mattered to someone besides us and others doing virtually the same kind of work.

So, I went to law school. But because I was still finishing up my six-year graduate program, I was still making frequent trips to Gilmer Hall, even as I was preparing my oral argument for Trial Advocacy. In short, I had a foot in both worlds. It was an eye-opening experience. I was horrified by the casual way my Psych colleagues would suggest dispensing with, or entirely upending rules of evidence, rules of procedure, and practices based upon the Constitution (and settled by our highest Court). I was likewise shocked and dismayed by the myriad assumptions upon which our legal system is built; many of them had been empirically demonstrated to be inapposite. Mostly what I found distressing was the ignorance of one field for the other. Needless to say, the time I spent driving back and forth from the law school to the psychology department at UVA was a period of much dissonance for me.

Although I was only vaguely aware at the time, I was not alone in my voyage. Hundreds of PhD/JD psychology and law types were engaged in some stage of schooling or academia along with me. Many had come before and were already out there doing ground-breaking work, and forging a path for future research. Both fields have benefitted immensely from efforts by those with knowledge of the foci and methodologies of each to bring them together. My writing and teaching continues to be an outlet for the dissonance I still experience when I teach doctrinal courses.

More recently, my thinking about how behavioral research should inform legal rules and practices has gained a new dimension. I see a common thread in much of the scholarship I see, and it is ethics. In a way, this is unsurprising. I always start my first-year, first-semester Torts class by encouraging student to think about law as the mechanism by which we govern human interaction. We talk about the social contract and I ask them to describe “good” society, and then to think about what they know about law and how law “works” to enforce the social contract and to increase common good. These are themes throughout the course. Conversation about law as a deterrent of bad actions and a reinforcer of desirable behavior is often, I’ve found, devoid of any discussion of ethics or morality. Law is instrumental, morality is not. Morality—good ethical practice—exists on its own as a kind of exogenous virtue. Certainly, we might create rules that require “ethical” practices, but that is really just about using laws (or standards) in an instrumental way, in the same way we use speed limits to encourage safe driving.

I have come to believe that many discussions about law and policy would benefit from a straight-forward, integrated consideration of ethical implications of various choices we might make. Why? Because at bottom, our expectations about how human beings should behave derive from our most basic sensibilities—our affective, moral judgments, and all law can ultimately be distilled from this.

For example, ethical considerations are clearly implicated in the way in which political campaigns are financed. In my writing about the Supreme Court decision in Citizens United, the case in which the majority on the Court held that Corporations should be permitted to spend unlimited amounts of money on political advocacy, Justice Kennedy balanced First Amendment freedom of speech concerns against the concerns about the power of corporations with millions of dollars to spend for or against candidates who might advance corporate or industry objectives. Kennedy’s opinion referenced ethical considerations only implicitly. That is unfortunate. Consideration of the ethical basis for free speech might provide a clearer sense for what is at stake when we privilege that good at the expense of preventing corrupting influences in our political system. Similarly, corporate campaign spending should start with the question of what a corporation should and should not ethically be able to do to influence an election.

Ethical questions about law and policy invariably raise psychological questions. How is unethical behavior likely to shape attitudes or behaviors? What features of the environment influence people to behave ethically or unethically? How best can we encourage ethical practices? Under what circumstances do people behave unethically by strategically exploiting known cognitive or attributional tendencies. Even our thinking about ethics and the factors that determine whether we apply an ethical framework to legal problems are ultimately questions about human psychology.

I am looking forward to future discussions about behavioral legal ethics. I imagine that this forum will provide a rich source of thoughtful conversations, and hopefully, it will spotlight the many ways that behavioral and ethical considerations can inform law and policy.