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.

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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.

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:

• Summer Fun with Illusions (and a metaphor to boot!)
• The Technological Future of Behavioral Legal Ethics?
• Ethics Unwrapped, an Invaluable Resource
• New Interactive Video on Behavioral Legal Ethics — available free for law professors!
• Teaching Behavioral Legal Ethics: A Seminar
• Published: “Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility”
• New Scholarship: Giving Voice to Values in Legal Education
• Teaching Confidentiality . . . and Confirmation Bias
• Podcast on BLE
• Sharing Teaching Ideas
• Teaching Ferguson
• Teaching BLE: Ethical Fading
• Big Moral Issues and Everyday Compromises
• What Asch’s Line Experiment Can Teach Us about Conformity and In-House Lawyers
• Fundamental Attribution Error
• What Asch’s Line Experiment Can Teach Us about Conformity and In-House Lawyers
• Teaching Through Literature
• Teaching Partisan Bias
• Lessons from the Stanford Prison Experiment
• Cognitive Reflection Test
• Teaching about the Slippery Slope
• BLE In the Classroom, Part 1

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:

• Paula Schaefer, Building on the Professionalism Foundation of Best Practices for Legal Education, 14 U. St. Thomas L.J. 320, 322 (2018)
• Vivien Holmes, ‘Giving Voice to Values’: Enhancing Students’ Capacity to Cope with Ethical Challenges in Legal Practice, 18 LEGAL ETHICS 115 (2015)
• Tigran W. Eldred, Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility, 2016 Mich. St. L. Rev. 757 (2016)

Behavioral Ethics:

• Mark S Schwartz, Teaching Behavioral Ethics: Overcoming the Key Impediments to Ethical Behavior, 41 J. Mgmt. Educ. 497 (2017)
• Robert A. Prentice, Behavioral Ethics: Can It Help Lawyers (And Others) Be Their Best Selves?, 29 Notre Dame J.L. Ethics & Pub. Pol’y 35 (2015)
• Minette Drumwright et al., Behavioral Ethics and Teaching Ethical Decision Making, 13 Decision Sci. J. Innovative Educ. 431 (2015)
• Robert Prentice, Teaching Behavioral Ethics, 31 J. Leg. Stud. Educ. 325 (2014)
• Robert A. Prentice, Teaching Ethics, Heuristics, and Biases, 1 J. Bus. Ethics Educ. 57 (2004)

Psychology and Legal Education:

• Jean R. Sternlight & Jennifer K. Robbennolt, Psychology and Effective Lawyering: Insights for Legal Educators, 64 J. LEGAL EDUC. 365, 375-77 (2015)

 

Scholarship Update

New article of interest: Nancy 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.

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).

 

 

 

Scholarship Update

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.

Scholarship Update: Blind Injustice

As I am sure is true for many, I have large stacks of books waiting to be read that sit in piles on my office desk or home book stand. One pile, which I am working through — books about the role of behavioral science in criminal justice — just expanded with the publication of Mark Godsey’s Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions.  The director of the Ohio Innocence Project, Professor Godsey‘s book  promises to be a tour de force about how a myriad of psychological factors — such a confirmation bias, cognitive dissonance and dehumanization, to name a few — can cause prosecutors to make horrible errors in judgment.  One chapter is dedicated to tunnel vision, a term well-known to those in the field of criminal justice, which too often causes prosecutors and law enforcement to focus narrowly on evidence of guilt without objectively assessing contrary evidence of innocence (I have written about tunnel vision with regard to the famous case of Jeffrey MacDonald, the army doctor who was convicted of the brutal slaying of his wife and two young daughters more than 40 years ago).

Peppered with examples from cases Professor Godsey has worked on, as well as others in the news, the book promises to be a valuable addition to the growing body of scholarship exploring the role of psychological biases in the process of criminal adjudication.

Other notable books on the subject include: Adam Benforado’s Unfair (2015), Dan Simon’s In Doubt: The Psychology of the Criminal Justice Process (2012), and Daniel Medwed’s Prosecution Complex (2012).  And, of course, there is a large and growing body of academic scholarship in law reviews, including this article by Keith Finley and Michael Scott and this one by Alafair Burke.

Ethical Systems’ new E-book: Head to Head

Profiled in today’s Wall Street Journal, the new E-book by Ethical Systems, Head to Head: A Conversation on Behavioral Science and Ethics, is a great introduction to the subject. Easily accessible to non-experts, the book is formatted as an interesting conversation between ES’s CEO, Azish Filabi, and Jeff Kaplan, a leader in the field of Compliance & Ethics (Kaplan’s Conflicts of Interest blog provides a wealth of useful material on behavioral ethics in the compliance field). As the WSJ noted today:

Behavioral science can help organizations improve their ethics and compliance programs, but wading through the academic prose of such research reports can make them less useful to the people tasked with overseeing those programs. A new e-book from Ethical Systems, a collaboration of researchers that promote ethical business culture, highlights the latest insights from the behavioral science field and provides action points for organizations to incorporate any lessons that are learned.

Many of the behavioral topics in Head to Head will be familiar to readers of this blog, such as overconfidence bias, the “Holier Than Thou” effect, conformity bias, priming by money, the corrupting influence of power, slippery slopes, the counterfeit self, and the power of nudges. A great read for anyone who wants a lively refresher on the power of behavioral science to shape ethical decision-making.

Update: 10/10/17: Ethics and Compliance Initiative has posted a webcast by the two authors of Head to Head, which is available here (the webcast is free; registration required).