ABA Panel on Behavioral Legal Ethics

The ABA’s Business Law Section will be holding what promises to be an excellent panel on behavioral legal ethics at its annual meeting in Chicago on September 12, 2014. It looks great and is highly recommended.

Michael Herman, the program chair, has provided the following description:

The Road to Abilene, Temporary Blindness, Slippery Slopes, and Other Hazards to Ethical Behavior by Lawyers

Lawyers confront ethical challenges, such as potential conflicts of interest, on a daily basis. Our last program discussed the largely unconscious cognitive biases that, without our being aware of them, affect everyone, including lawyers. This program will explore what research in behavioral, social, and organizational psychology can teach us about how the dynamics of group and other organizational settings, including law firms, influence our ethical choices.

The panel of distinguished scholars and practitioners (including long-time Section friend Don Langevoort, of Georgetown Law Center, and leading behavioral ethics scholar Ann Tenbrunsel, of Notre Dame) will cover topics such as bounded ethicality, self-serving bias, framing, ethical fading, motivated blindness and incrementalism, using case studies, demonstrations, and video clips.

In addition, Dr. Larry Richard will be part of the panel. Dr. Richard, a psychologist and a lawyer, will speak to how lawyers in particular are subject to some of these influences. We will also be discussing two fact-based studies to give the audience a sense of how these concepts actually play out in particular circumstances.

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Teaching Through Literature

Over at Ethical Systems, which is organized by many of the leading researchers in the field of behavioral ethics, there is a post about how business schools are using literature to teach ethics to their students. Included is an excellent list of business-related novels that address professional ethics.

Which poses the question to law professors: what literature, if any, do you assign to teach professional responsibility? I know, for example, that many have assigned one of my favorite novels, Kazuo Ishiguro’s Remains of the Day, as a wonderful exemplar of questions raised by role morality. And, of course, To Kill a Mockingbird is one of the all-time classics to teach the importance of social responsibility, duties owed to clients and other important themes.

I just did a quick search and found that my alma mater, Fordham Law School, held a symposium a number of years ago on the role of story-telling in professional ethics. Here’s the link for anyone who is interested.

Cognitive Reflection Test

NB:  This is a modified version of a post from another forum that might be of interest to readers of this Blog.

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As part of my effort to explain the power and fallibility of System 1 thinking to my Professional Responsibility students, I provided them with the questions from Shane Frederick‘s Cognitive Reflection Test (CRT). For those not familiar with the CRT, it consists of three questions that help illuminate the errors that can occur through quick, intuitive thinking.

Here are the CRT questions [spoiler alert for those who haven’t seen the test, the answers with explanations are at the end of this post]:

(1) A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?

(2) If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?

(3) In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake?

I’ll be curious to see how my students respond and whether they exceed the performance of the approximately 3400 undergraduate students who took the test in Frederick’s original study, which was 1.24 out of 3 (although there was a wide divergence of results, depending on the school). Interestingly, the undergraduates averaged slightly better than 252 trial judges in Florida who took the CRT as part of a study by Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich, entitled Blinking on the Bench: How Judges Decide Cases.

The CRT is one way I’m exploring the foundations of BLE with my students. I’ll share others in the future (for example, this short video provides a quick overview of fast v. slow thinking). And, if anyone has used the CRT or other methods to teach any aspect of BLE, I’d be interested to hear about your experiences.

[As some may have seen, the CRT has generated publicity in the last few years for its role in studies of whether performance on the test predicts religious belief — here’s a sample].

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Here are the answers and explanations for the CRT provided by the authors of the Blinking at the Bench study (pp. 10-11, footnotes omitted):

“Each of the three CRT items has a correct answer that is easy to discern upon reflection, yet each also has an intuitive—but incorrect—answer that almost immediately comes to mind. Consider the first question. For many people, the answer that immediately jumps to mind is ten cents. Though intuitive, this answer is wrong, as a bit of reflection shows. If the ball costs ten cents and the bat costs one dollar more, the bat must cost $1.10. Adding those two figures together, the total cost of the bat and ball would be $1.20, not $1.10. Therefore, the correct answer is five cents—the ball costs five cents, the bat costs $1.05, and together they cost $1.10.

For the second question, the answer that immediately jumps to mind is 100 minutes. Though intuitive, this answer is also wrong. If five machines make five widgets in five minutes, then each machine makes one widget in that five-minute time period. Thus, it would take only five minutes for 100 machines to produce 100 widgets, just as 200 machines would make 200 widgets during that same period.

The third question immediately invites an answer of twenty-four days, which is wrong. The correct answer—obvious upon reflection—is forty-seven days. If the patch of lily pads doubles each day and covers the entire lake on the forty-eighth day, it must cover half the lake the day before.”

More Behavioral Lessons from the Dewey Downfall

The Dewey & LeBoeuf implosion and subsequent criminal indictments have been all the rage in legal circles, raising a number of intriguing issues – including the decision by Manhattan DA Cyrus Vance to bring the full weight of his office against a low-level former Dewey employee who, while working as federal clerk, has been twice indicted in the case, and Vance’s decision not to disclose the deals of the seven ex-Dewey employees who have already pled guilty in the case (all of which have been subsequently unsealed by court order). Some of the behavioral aspects of the case have been discussed by Nancy Rapoport, whose forthcoming article in the St. Mary’s J. L. Ethics & Malpractice addresses the cognitive biases and blind spots that may have led to the firm’s demise.

Now comes another perspective that raises important questions for behavioral legal ethics: does Dewey’s downfall demonstrate the need for Big Law (and other law firms) to take a compliance approach when developing an ethical infrastructure? Donna Boehme, the compliance columnist for Corporate Counsel (free registration required), concludes that the answer is yes — arguing that many of the same risk factors that exist in the corporate world also apply to Big Law (her top ten reasons why the compliance model should be adopted by law firms is here).

From a behavioral science perspective, what is fascinating is that the compliance world seems to be taking seriously the role that behavioral ethics can play in creating an ethical culture. Indeed, Boehme prominently cites Bryan Cave partner Scott Killingsworth, the leading voice advocating for a behavioral approach to compliance issues (His GJLE article, entitled Modeling the Message: Communicating Compliance Through Organizational Values and Culture, has been downloaded on SSRN 2147 times by last count!).

In a nutshell, Killingsworth argues that organizations that promote and communicate implicit ethical values are more likely to successfully foster compliance with ethical norms than those that rely exclusively on traditional “command-and-control” models (such as fear of punishment and/or other explicit incentives for compliance). Along the way, he discusses the role of priming, framing, obedience to authority, procedural justice, the slippery slope, and many other aspects of behavioral ethics. His work also relies heavily on empirical work of leading researchers such as Dan Ariely, Tom Tyler and Linda Trevino, among others (Killingsworth also specifically highlights Giving Voice to Values, a program developed by Mary Gentile who previously taught for ten years at Harvard Business School (for more about GVV, there is an excellent series of videos and additional material available at Ethics Unwrapped).

So how might Killingsworth’s recommendations have helped in the Dewey case? To take but one example, he notes that organizations that promote the intrinsic motivation of employees to act ethically are more likely to produce voluntary disclosure of violations than organizations where such attributes are missing. Coming back to the Dewey example, would the fraud that is alleged to have contributed to the firm’s downfall been discovered and reported much earlier if the employees with insider knowledge felt comfortable disclosing it? (Boehme makes a similar point: “A compliance program, tailored to the law firm structure, could have given those seven Dewey employees a safety valve. If just one of them had sounded the alarm at the beginning instead of quietly acquiescing, the story might have taken a different turn.”).

Others will debate whether the Dewey case  is a warning bell for how other large firms operate, including those who disagree that it portends similar egregious misconduct by other members of Big Law.  But to the extent that this debate involves inquiry into how firms facing economic uncertainty should reinforce the importance of an ethical culture within their infrastructure, it is heartening to know that there is a well-developed behavioral approach that can – and should — be part of the discussion.

[update:  4/7/14:  For more discussion of the role of behavioral ethics in the world of business compliance, see this string of posts from Jeff Kaplan, the editor of conflictofinterestblog.com]

[update #2: 6/2/14:  Jeff Kaplan has indexed all of his posts regarding behavioral ethics at the conflictsofinterestblog.com here]