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.

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.

Scholarship Update

Professor W. Bradley Wendel

For a fascinating discussion of the role of behavioral ethics in the context of judicial decision-making, see W. Bradley Wendel, Campaign Contributions and Risk-Avoidance Rules in Judicial Ethics, 67 DePaul L. Rev. 255 (2018).  Professor Wendel’s work contrasts the rules of judicial recusal from those of attorney conflicts, making the argument that the former should more closely track the latter. Behavioral ethics research sits at the center of the paper. From the introduction (footnotes omitted):

“Well-understood, predictable psychological mechanisms create ‘blind spots’ in which the effect of a conflict of interest is not apparent to someone subject to it. The effect of campaign contributions on judges’ perceptions of bias is often unconscious. To make matters worse, judges also remain unaware of their unawareness resulting in a persistent and difficult-to-dispel illusion of objectivity. Judges, like other professionals, believe their ethical commitments are sufficient to withstand the bias effects of external factors, such as financial conflicts of interest.”

Scholarship Update

Professor Yuval Feldman

Recently published, Professor Yuval Feldman‘s new book, The Law of Good People: Challenging States’ Ability to Regulate Human Behavior, is a rich and comprehensive description of the state of behavioral ethics research and its impact on public policy and decision-making.

Here is the book’s abstract:

Currently, the dominant enforcement paradigm is based on the idea that states deal with ‘bad people’ – or those pursuing their own self-interests – with laws that exact a price for misbehavior through sanctions and punishment. At the same time, by contrast, behavioral ethics posits that ‘good people’ are guided by cognitive processes and biases that enable them to bend the laws within the confines of their conscience. In this illuminating book, Yuval Feldman analyzes these paradigms and provides a broad theoretical and empirical comparison of traditional and non-traditional enforcement mechanisms to advance our understanding of how states can better deal with misdeeds committed by normative citizens blinded by cognitive biases regarding their own ethicality. By bridging the gap between new findings of behavioral ethics and traditional methods used to modify behavior, Feldman proposes a ‘law of good people’ that should be read by scholars and policymakers around the world.

For an excellent review the book, see Richard Moorhead, Good People and the Ethics of Quiet Egocentricity, JOTWELL (September 17, 2018).

Scholarship Update on Stanley Milgram

50 Years of ‘Obedience to Authority’: From Blind Conformity to Engaged Followership, Annual Review of Law and Social Science, Vol. 13, pp. 59-78, 2017

Abstract

Despite being conducted half a century ago, Stanley Milgram’s studies of obedience to authority remain the most well-known, most controversial, and most important in social psychology. Yet in recent years, increased scrutiny has served to question the integrity of Milgram’s research reports, the validity of his explanation of the phenomena he reported, and the broader relevance of his research to processes of collective harm-doing. We review these debates and argue that the main problem with received understandings of Milgram’s work arises from seeing it as an exploration of obedience. Instead, we argue that it is better understood as providing insight into processes of engaged followership, in which people are prepared to harm others because they identify with their leaders’ cause and believe their actions to be virtuous. We review evidence that supports this analysis and shows that it explains the behavior not only of Milgram’s participants but also of his research assistants and of the textbook writers and teachers who continue to reproduce misleading accounts of his work.

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.

Scholarship Update

Thanks to Ethicalsystems.org for posting an important new draft paper by Professor Donald Langevoort of Georgetown Law Center.  In it, Professor Langevoort — one of the leading scholars in the field of behavioral law and corporate ethics — takes a multidimensional approach to the thorny question of corporate culture and compliance.  Many of the lessons have applicability to a variety of organizational cultures, including law firms and other legal organizations. A must read for anyone interested in the topic.

Here is the abstract:

In the last few years especially, law-makers have increasingly invoked culture as something crucial to good compliance. The phrase “culture of compliance” has thus made its way into common legal discourse as describing both a goal and a marker. Precisely they mean by this is contestable, but there is enough evidence that the demand for healthy compliance culture is serious to invite careful thought. What is it, or should it be, and how might we know? This article draws from organizational behavior, behavioral ethics, and financial economics to develop an approach to how and why corporate cultures resist naively appealing interventions of “tone at the top” and ethical exhortation. Though recognizing the limited institutional capacity of government enforcers to promote structural changes in corporate governance and internal controls, the article concludes that any hope of getting to a socially optimal level of compliance — including a healthy culture of compliance — depends on a strong public voice to counter the beliefs and biases that grease internal perceptions of how firms succeed. In the end, however, the most important message about cultures of compliance is for corporate leaders and, especially, boards of directors. It is much too easy to look around and see good people working hard at difficult jobs and assume that a good compliance culture exists simply because everyone has been warned of the damage that can come from getting caught doing wrong. Or worse, to assume that an observable abundance of intensity, loyalty and creativity are signs that all is good. Taking culture seriously — appreciating the opportunities for transmitting values as well as anticipating the many hidden pathways of resistance and denial — is a necessary step toward the sort of compliance that never attracts prosecutors’ unwanted attention.

New ABA Video — “Hidden Injustice: Toward a Better Defense”

As I’ve noted previously, research on implicit bias has taken hold at the highest levels of government, with the U.S. Department of Justice requiring training on implicit bias for all of its employees.

Criminal defense lawyers, of course, are also prone to implicit bias, as Professor L. Song Richardson has written in her excellent article in the Yale Law Journal. Now she and other experts discuss implicit bias and criminal defense in a new video, produced by the ABA, which is available here. It is an excellent introduction to the subject, and can be quite useful in classroom discussions (I plan to use it in my criminal defense ethics class this semester).

(The research basis for implicit bias also corresponds with the reasons why lawyers for indigent defendants can suffer from what I call “ethical blindness,” as I have written elsewhere).

Happy viewing!

The Moral Compass of In-House Counsel

There is a growing body of scholarship that addresses the behavioral aspects of in-house lawyers and how they function. Some of the more prominent scholars in the area include Professor Sung Hui Kim (see here and here) and Professor Donald Langevoort (see here and here). Now comes a new and important study of in-house counsel in the United Kingdom, entitled Mapping the Moral Compass: The Relationships Between In-House Lawyers’ Role, Professional Orientations, Team Cultures, Organisational Pressures, Ethical Infrastructure, and Ethical Inclination.  The study, which surveyed 400 respondents from England and Wales, provides keen insights into how in-house lawyers perceive the ethical dimensions of their work.

The abstract of the study provides more detail:

This report provides a unique profile of real differences within the in-house community. We examine individual and team orientations to the in-house role; the invocation of professional principles; and ethical infrastructure, ethical pressure and relationships with the employer. We relate these to externally validated indicators of ethical inclination: (i) moral attentiveness (the extent to which people deal with problems as moral problems and the extent to which people identify moral problems); and (ii) moral disengagement (the extent to which people are inclined to morally disengage to behave unethically without feeling distress). It is as rich a picture of what it means to be an ethical in-house lawyer as has ever been attempted.

Through this research we profile the characteristics of individuals, teams and environments most associated with a stronger or weaker inclination to behave ethically. It is important to emphasise that this mapping of the ‘moral compass’ of in-house lawyers shows that ethicality is associated with individual and professional notions of the in-house role but also with team orientations and the broader organisational environment. Ethicality is both a systemic and individual phenomenon.

To help understand the diversity in ethical identities, we identify four main groups of in-house lawyers (described in more detail in Chapter 9):

• the Capitulators (who are reasonably morally attentive but are under ethical pressure and are less morally engaged);

• the Coasters (who do not perceive themselves as under ethical pressure and have moderate-low levels of moral attentiveness but not lower moral disengagement);

• the Comfortably Numb (who do not perceive high levels of ethical pressure and have low levels of moral attentiveness and higher moral disengagement – the most concerning of the four groups); and,

• the Champions (who are under the highest levels of ethical pressure but retain the highest levels of moral attentiveness and the lowest levels of moral disengagement).

Our research suggests that ethical in-house practice is about individual understandings of the role (orientations towards commerciality; ethicality; independence; being a mere advisor; and exploiting uncertainty); it is about the approach of teams and the organisations those teams work in; it is about understanding and drawing on all the obligations of professionalism; and, it is about building a better infrastructure to manage the tensions within the role.

The report is part of a larger project, entitled Ethical Leadership for In-House Lawyers (more here).

For those who are interested, two of the authors of the study, Richard Moorhead and Steven Vaughan, will be discussing their work at NYU Business School on July 14 at 5:00 pm. Details are available here.

International Legal Ethics Conference VII (ILEC)

I’m happy to report that we will have two panel discussions dedicated to Behavioral Legal Ethics at the upcoming ILEC VII Conference at Fordham Law School in New York City, July 14-16, 2016.  For those who may not know, ILEC takes place every two years and is attended by legal ethics scholars, practitioners and researchers from across the globe. This year’s conference, entitled The Ethics & Regulation of Lawyers Worldwide: Comparative and Interdisciplinary Perspectives, expects to be an exciting mix of discussions on a wide range of topics.

The first panel, “Recent Developments and Future Directions in the Study of Behavioral Legal Ethics,” will feature Professor and Associate Dean Catherine Gage O’Grady, University of Arizona James E. Rogers College of Law; Professor Jane Moriarty, Duquesne University School of Law; and Professor (and BLE co-founder) Molly Wilson, PhD, St. Louis University School of Law. Professor and Associate Dean Alice Woolley from the University of Calgary School of Law will moderate.  Here is the description:

This will explore recent developments and future directions in the study of behavioral legal ethics and its application to the professional practice of law. Panelists will discuss how unconscious biases, self-deception, and situational dynamics impact lawyers’ ethical decision making, behavior, and professional identity. In addition, the panel will explore the unique ways that behavioral legal ethics principles impact new lawyers, examine the way ethical cultures and infrastructures differ between different legal practice settings and different jurisdictions, and suggest how insights from behavioral science can be harnessed to promote ethical professionalism in a wide variety of practice settings.

The second panel, “Experiential Approaches to Teaching Behavioral Legal Ethics,” will feature Professor Vivien Holmes, Australian National University College of Law; Professor (and BLE co-founder) James Milles, University of Buffalo School of Law; and me. Professor Julian Webb from University of Melbourne Law School will moderate. Here is the description:

This panel will focus on experiential approaches to teaching behavioral legal ethics. These include simulation exercises that place students in role where situational influences that affect behavior can be explored and the use of multimedia and online resources to engage students in the foundations of behavioral science. In keeping with this approach, the panel will not only report on the latest empirical and educational research, but will involve audience members in interactive exercises so as to illuminate core findings of behavioral research.