Short Primer on Motivated Reasoning and Legal Ethics

Here is a short primer on Motivated Reasoning and Legal Ethics, published in the PLI Chronicle. This is a companion to the interactive video on the same subject, which is available here. The co-authors are Prof. Molly Walker Wilson and Tigran Eldred.

Reminder: Motivated Reasoning and Legal Ethics

A reminder to anyone who teaches legal ethics that the interactive video program, Motivated Reasoning and Legal Ethics, is available free to law professors from the Practising Law Institute. This valuable resource teaches about various cognitive biases and situational influences that affect ethical decision-making and includes simulations (addressing over-billing and disclosure requirements in criminal cases) performed by professional actors.  In these times when so much of the educational landscape is occurring online, this resource can complement other aspects of the ethics curriculum. More information here.

Scholarship Update

Professor Russell Korobkin from UCLA School of Law has posted an important new article, Behavioral Ethics, Deception, and Legal Negotiation.

Abstract

Research in the field of behavioral ethics finds that much unethical behavior is not the result of conscious amorality. Rather, cognitive and motivational biases enable and even encourage people who consider themselves to be pro-social to act badly without ever recognizing the shortcomings of their behavior. This Article, delivered as the annual Chris Beecroft, Jr. Memorial Lecture on Dispute Resolution at the UNLV Boyd School of Law, explores how the findings of behavioral ethics can help to better understand, predict, and potentially combat unethical behavior in legal negotiation. Its admittedly pessimistic conclusion is that legal negotiation is an activity that is likely to be rife with behavior that is unethical, or at least presses hard against ethical boundaries.

The Article summarizes the core findings of behavioral ethics research, explains why this research suggests that deceptive behavior will be common in negotiation, argues that the agency role played by lawyers in legal negotiation likely also encourages unethical behavior, and, finally, propose steps that lawmakers or negotiators themselves might take to reduce the amount of deceptive behavior in legal negotiation.

Scholarship Update

Professor Donald Langevoort from Georgetown Law, a leading scholar on the application of behavioral science in the corporate context, has posted an important new work, Gatekeepers, Cultural Captives, or Knaves? Corporate Lawyers Through Different Lenses (Fordham Law Review, forthcoming).

Here is the abstract:

Studying the behavior of high-status corporate lawyers is challenging. Much writing (including some of my own) addresses the risk of lawyer enabling of client misconduct by drawing from work in behavioral ethics suggesting that at least some apparent complicity is without full awareness of the impropriety. Is this naïve? The first part of this essay pushes harder on consciousness by looking more closely at the lengthy continuum — not a binary yes/no — in the awareness of wrongdoing risk as heavily influenced by the “slippery slope.” Looking at corporate lawyers’ professional responsibility through this lens has some interesting, and as far as I can tell, under-explored implications that help us understand ethical apathy as a distinctive state of mind. The essay’s second part is more hopeful: that such ethical apathy among private practitioners might be offset by greater embrace of the possibility by in-house lawyers. There has emerged in recent years a different lens for the empirical examination of corporate general counsel, using the tools of financial economics to seek correlations (and maybe causation) between identifiable lawyer characteristics and outcomes for the company in terms of (for example) its legal exposure. There is some hopeful news in this research, albeit heavily contingent on the company’s governance structure. The essay ends by suggesting that, while the effort in normative legal ethics to enlist corporate lawyers in more than a legalistic conception of gate-keeping has failed, corporate governance and corporate ethics — surprisingly, perhaps — have some potential to enable gate-keeping general counsels in a way that filters down to the demand for more ethically-sensitive outside counsel as well.

 

Scholarship Update

Two important works on behavioral ethics have been posted recently. The first is by Professor Eyal Zamir, a leading scholar on the application of behavioral science to legal decision-making, who makes the important point that behavioral research supports “many of the predictions of standard economic analysis, without committing to a simplistic portrayal of human motivation.”  The second is co-authored by Professor Yuval Feldman, a leader in the field of behavioral ethics (see our prior post about his book), who discusses the implications of behavioral ethics in the field of compliance.  Abstracts for both papers are provided below.

Zamir, Eyal, Refounding Law and Economics: Behavioral Support for the Predictions of Standard Economic Analysis (August 26, 2019). Review of Law and Economics, Forthcoming; Hebrew University of Jerusalem Legal Research Paper. Available at SSRN: https://ssrn.com/abstract=3442740

Abstract

Based on the premise that people are rational maximizers of their own utility, economic analysis has a fairly successful record in correctly predicting human behavior. This success is puzzling, given behavioral findings that show that people do not necessarily seek to maximize their own utility. Drawing on studies of motivated reasoning, self-serving biases, and behavioral ethics, this article offers a new behavioral foundation for the predictions of economic analysis. The behavioral studies reveal how automatic and mostly unconscious processes lead well-intentioned people to make self-serving decisions. Thus, the behavioral studies support many of the predictions of standard economic analysis, without committing to a simplistic portrayal of human motivation. The article reviews the psychological findings, explains how they provide a sounder, complementary foundation for economic analysis, and discusses their implications for legal policymaking.

Feldman, Yuval and Kaplan, Yotam, Behavioral Ethics as Compliance (September 23, 2019). Forthcoming, Cambridge Handbook of Compliance (Van Rooij & Sokol Eds.) Available at SSRN: https://ssrn.com/abstract=3458582

Abstract:

This chapter studies the implications of behavioral ethics research to questions of legal compliance. Behavioral ethics emphasizes the concept of bounded ethicality, referring to a long list of biases and cognitive limitations that prevent people from making a full and candid evaluation of the ethicality of their own actions. In other words, people often act unethically not because they made a conscious choice to behave badly, but because they were able to ignore, downplay, or justify their own misconduct. This chapter explores the meaning of behavioral ethics findings for questions of compliance with the law. That is, if people often ignore or downplay their own unethical choices, how can law-makers and regulators act to improve compliance with the law? The chapter describes the central relevant findings of behavioral ethics research, the challenges these findings pose for legal compliance, and outlines possible solutions. In particular, we advocate a novel regulatory approach utilizing ethical nudges: regulatory interventions that are designed to improve ethical deliberations by potential wrongdoers.

Debating Debate (repost)

Many lawyers started on their path toward law in high school and college — as members of an organized debate team, arguing one side and then the other of the annual national resolution. For me it was an all-consuming affair in high school, with travel most weekends to debate tournaments across the country. Exhilarating and formative, debate taught me many of the analytical and research skills I have needed since — as a lawyer and now a teacher.  So, I was very happy to see Robert Prentice’s excellent response to the recent NYT op-ed critique of organized debate.  Professor Prentice is correct that, if we are looking to understand our wayward political discourse, the explanation is not to be found in the tools taught by organized debate, but rather in the psychological processes that produce self-serving and related psychological biases. These are useful lessons for all lawyers, especially those interested in the psychology of ethical decision-making.

As Professor Prentice notes:

When politicians engage in excessively partisan wrangling, it is not because of the debate training that some small number of them may have had. It is because of the self-serving bias. Debaters, more than others, know that there are at least two sides to every argument because they’ve practiced arguing for both sides. They know better than others that they should be open minded, though the self-serving bias may cause them to ignore than knowledge.

Because of their training, debaters also know better than most, that some arguments are better than others, that real facts should be more persuasive than “alternative facts,” and that calling something “fake news” just because you wish it were fake new does not make it fake news.

Those of us who wish to be moral actors must realize that (a) in the political arena, we must fight against the undue impact of the self-serving bias, and (b) the self-serving bias undermines the integrity of our moral judgments just as it does our political judgments. But you can let your kids go out for the debate team, we promise.

Professor Prentice’s full response is available here.

Has competitive debate trained students to make one-sided arguments that have led to our current "unproductive political discourse," or is there something else at play? #newblogpost https://t.co/lBbFfYvfBC

— Ethics Unwrapped (@EthicsUnwrapped) October 17, 2019

2019 ComplianceNet Conference

Behavioral ethics has forceful implications for the compliance world, as many leaders in the field have demonstrated (for a sampling, see works by Donald Langevoort, Scott Killingsworth, Jeff Kaplan, Todd Haugh, Linda K. Trevino, Yuval Feldman, among others). For those interested in this intersection, a treasure trove of videos on this and related topics are available from the 2019 ComplianceNet Conference, which took place at Villanova University Charles Widger School of Law. Many of the presenters are leading voices in the world of behavioral ethics research and its applications, including compliance. Links to the videos can be found here.

Congratulations!

Congratulations to the Practising Law Institute for winning a Gold Award, the highest level of recognition, in the “Best Use of Video for Learning” category in the Brandon Hall Group’s Excellence Awards, for its video MOTIVATED REASONING AND LEGAL ETHICS. This video is freely available to legal educators.  More information here.

Here is the press release about the award.

PLI is proud to have earned a Gold Award in the Brandon Hall Group's Excellence Awards for the Motivated Reasoning and Legal Ethics program, created by our Interactive Learning Center. Read the press release here to learn more about this innovative program:https://t.co/HbOq7QHofT pic.twitter.com/TWMq35Dzvh

— PLI (@PractLawInst) September 27, 2019

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”:

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.