Category Archives: Uncategorized

Two Brief Announcements

Twitter BLEBlog Pic

  1. As the field of Behavioral Legal Ethics matures, we are happy announce that our blog just passed 15,000 page views! Thank you to everyone who has been reading and visiting — it’s very much appreciated!
  2. To mark the occasion, we thought it would be a good idea to have our own Twitter account, so you can now find us at @TheBLEBlog. Follow us if you would like updates about recent posts, activities, etc.

As always, we are eager for feedback and suggestions, either as comments to posts or directly to the contributors.

Thank you!

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Repeated Misconduct and “Unethical Amnesia”

Those of us who study and write about ethics often wonder why human beings repeat unethical behaviors and fail to learn from their mistakes. Recently, researchers from Northwestern and Harvard have grappled with that question and believe that they may have an answer. Maryam Kouchakia and Francesca Gino conducted a study on cheating and found evidence that people suffer from “Unethical Amnesia,” the tendency to forget past, unethical behavior.  Kouchakia and Gino hypothesize that the psychological discomfort that individuals experience when they cheat leads them to obfuscate memories of their ethically questionable actions. As a result, these individuals fail to learn from the past, and are more likely to repeat bad acts.

More information about the research can be found here: Unethical Amnesia

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

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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!

BLE and the Practicing Lawyer

Having recently returned from International Legal Ethics Conference VII, I was happy to see so much interest in the emerging field of Behavioral Legal Ethics (BLE).  The two BLE panels on which I participated were well attended.  Other panels also included discussions of BLE, including a fascinating discussion of how behavioral science is making its way into the education of South African lawyers.

I am also heartened to see that the field is expanding to include important discussions among legal practitioners.  For instance, Catherine O’Grady and I have produced this online CLE program with the Practising Law Institute that has been viewed by more than 800 lawyers (registration fee required).  As another example, I just came across this article in a recent edition of the Oregon State Bar Bulletin (the magazine for Oregon’s practicing lawyers) that lays out some of the fundamentals of BLE (citing many leading BLE scholars such as Jean Sternlight & Jennifer Robbennolt, Robert Prentice and Catherine O’Grady).  How great that BLE has started to take hold with those who need it most — lawyers who regularly struggle with the ethical dilemmas that arise in practice.

For anyone interested in BLE, it is an exciting time indeed!

The Supreme Court’s Intuition

I’ve noticed over the years that, at least with regard to judicial disqualification, the Supreme Court has a penchant for making interesting assertions about human psychology, but then failing to provide an empirical basis for its claims — a matter I discuss in more detail with regard to the Court’s recent decision in Pennsylvania v. Williams in a new blog post on the New England Law faculty website, On Remand.

Update: 06/23/16:  Others have written more extensively about the role of unconscious bias with regard to judicial recusal and disqualification.  For some of the scholarship in this area, see:

Debra Lyn Bassett, Three Reasons Why the Challenged Judge Should Not Rule on A Judicial Recusal Motion, 18 N.Y.U. J. Legis. & Pub. Pol’y 659 (2015)

 Melinda A. Marbes, Reshaping Recusal Procedures: Eliminating Decisionmaker Bias and Promoting Public Confidence, 49 Val. U. L. Rev. 807 (2015)

 Melinda A. Marbes, Refocusing Recusals: How the Bias Blind Spot Affects Disqualification Disputes and Should Reshape Recusal Reform, 32 St. Louis U. Pub. L. Rev. 235 (2013)

 Debra Lyn Bassett & Rex R. Perschbacher, The Elusive Goal of Impartiality, 97 Iowa L. Rev. 181 (2011)

Ethics By Design

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Many of the leading researchers and scholars in the area of behavioral ethics and systems design gathered last week at a conference held by EthicalSystems.org.  Entitled “Ethics By Design,” the conference focused on business ethics, but much of what was discussed has direct applicability to the world of Behavioral Legal Ethics. Luckily for those of us who were not in attendance, videos of the conference presentations are now available here.  Thanks EthicalSystems.org for your leadership and work in the field!

Update: 6/17/16:  For those not familiar with the work of EthicalSystems.org or its approach, the introduction to the conference by the organization’s founder, Jonathan Haidt, is a great introduction:

 

International Legal Ethics Conference VII (ILEC)

ILEC VII

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.