Thursday, November 30, 2017
Short Articles on Alternative Dispute Resolution
Here is the latest issue of Resolution, the electronic newsletter of the Pennsylvania Bar Association’s Alternative Dispute Resolution Committee. It offers a number of articles that you may want to pass on to your students. Let me highlight two of them.
In ADR "Don't Get No Respect" — But It Has Preserved the Justice System, the Honorable Richard B. Klein (retired) places alternative dispute resolution in historical perspective and argues that the various methods of resolving legal disputes short of litigation have kept the judicial system from collapsing under the burden of heavy dockets. By the way, Judge Klein has been a pioneer in the plain English movement in Pennsylvania.
In Mediating the Orphans’ Court Dispute, my wife, attorney Patricia (Patti) Brennan, provides a step-by-step guide to mediating these disputes, which are often highly emotional. “Orphans’ Court” is the name for probate courts in Pennsylvania. (By the way, the apostrophe in the name of the court is not a typo.)
"Researchers have found an imbalance in the brain chemistry of young people addicted to smartphones and the internet, according to a study presented today at the annual meeting of the Radiological Society of North America (RSNA)."
"Hyung Suk Seo, M.D., professor of neuroradiology at Korea University in Seoul, South Korea, and colleagues used magnetic resonance spectroscopy (MRS) to gain unique insight into the brains of smartphone- and internet-addicted teenagers. MRS is a type of MRI that measures the brain's chemical composition."
"The study involved 19 young people (mean age 15.5, 9 males) diagnosed with internet or smartphone addiction and 19 gender- and age-matched healthy controls. Twelve of the addicted youth received nine weeks of cognitive behavioral therapy, modified from a cognitive therapy program for gaming addiction, as part of the study."
"Dr. Seo reported that the addicted teenagers had significantly higher scores in depression, anxiety, insomnia severity and impulsivity."
"More study is needed to understand the clinical implications of the findings, but Dr. Seo believes that increased GABA in the anterior cingulate gyrus in internet and smartphone addiction may be related to the functional loss of integration and regulation of processing in the cognitive and emotional neural network."
"The good news is GABA to Glx ratios in the addicted youth significantly decreased or normalized after cognitive behavioral therapy. "
Wednesday, November 29, 2017
From the Chronicle of Higher Education:
Republicans in the U.S. House of Representatives are expected to release a bill this week that would reauthorize the federal law governing higher education, the Higher Education Act of 1965, and it includes several significant changes, according to The Wall Street Journal, which reviewed a summary of the proposal.
Among the changes in the overhaul package from the U.S. House’s education committee, led by Rep. Virginia Foxx of North Carolina, are a plan to simplify the Free Application for Federal Student Aid, the Fafsa, and cap the amount that students may borrow. And it would end a loan-forgiveness program for public servants who have made payments on their loans for 10 years.
The bill would repeal the gainful-employment regulation, a thorn in the side of for-profit colleges, which is slated to undergo negotiated rule-making next week and be rewritten. The House Republicans’ bill also would expand job-training and apprenticeship opportunities, which have been championed by the Trump administration and Education Secretary Betsy DeVos. The bill would also maintain the ban on a unit-record system, which would foster the tracking of students’ attainments and has seen a groundswell of bipartisan support.
And while funding levels for historically black colleges and minority-serving institutions would remain flat with 2017 appropriations levels, the bill would tie Title III and Title V federal funds to institutions’ ability to graduate or transfer 25 percent of their students.
You can read more here.
In its “Skills Hour Series,” McGeorge Law School offers Legal Skills for Law School and Legal Practice, written by Professor Courtney Lee and Assistant Dean Tim Naccarato.
The ten skills are: 1. Critical thinking 2. Critical reading 3. Critical listening 4. Case briefing 5. Note taking 6. Outlining 7. Writing skills 8. Organizing for success 9. Maintaining balance 10. Collaborating & leading
For full discussions of these skills, please click here.
Tuesday, November 28, 2017
After being fired by the White House, Anthony Scaramucci submitted a book proposal. After the story leaked out, he withdrew the proposal, saying that he didn’t want to write a tell-all book. Here is the proposal’s opening paragraph:
TITLE: I DID IT MY WAYBY ANTHONY SCARAMUCCI
DELIVERY: SEPTEMBER 30, 2017 TARGET LENTGH: 60,000 WORDS
Anthony Scaramucci was President Donald Trump’s White House Communications Director for ten days. This book is the story of those ten days -- from the perspective of the outspoken Wall Streeter-turned Washingtonian who lived them. In retrospect, it was around Day 6 of his appointment as Communications Director that things took a strange turn, when his comments about the White House chief of staff created an uproar, leading to Scaramucci’s ouster. What the public doesn’t know was the countless other interactions involving Sean Spicer, General McMaster, Sarah Huckabee and even the Vice President.
You can read the rest here at the Business Insider. For those of you planning to write a book, I think you can view the proposal as a bad example. It doesn’t begin with enough “fireworks” or “sizzle” to suggest that the book would attract enough of a readership to make the book profitable. In additional, Scaramucci is old news; the political world has moved on.
Yesterday, I argued that, to be effective, sexual harassment training must include training in recognizing and overcoming cognitive biases. Otherwise, many sexual harassers will not recognize that they are sexual harassers. (here)
Many others have recognized the inadequacy of traditional sexual harassment training. For example, a recent article in the Washington Post stated, "Unfortunately, there is little evidence that training reduces sexual harassment. Rather, training programs, along with anti-harassment policies and reporting procedures, do more to shield employers from liability than to protect employees from harassment." (here) The article continued, "There have been only a handful of empirical studies of sexual harassment training, and the research has not established that such training is effective. Some studies suggest that training may in fact backfire, reinforcing gendered stereotypes that place women at a disadvantage."
Similarly, an article in Time declared, "according to the Harvard Business Review, men who are found likely to harass women leave trainings sure that harassment is not a big deal." Time noted, "Those trainings tend to focus on helping people understand the rules, law, and procedure around harassment."
In sum, instead of "helping people understand the rules, laws, and procedure around harassment," sexual harassment training must focus on why people sexually harass and help harassers recognize that they are harassers. Otherwise, people may know the rules of workplace conduct, but they will not know how to conform to it. In other words, people must be taught about their cognitive biases.
Monday, November 27, 2017
Here are a few from Town & Country:
- "Cut out all these exclamation points. An exclamation point is like laughing at your own joke."
- "And I like large parties. They're so intimate. At small parties there isn't any privacy."- The Great Gatsby
3."Whenever you feel like criticizing anyone, just remember that all the people in this world haven't had the advantages that you've had." – The Great Gatsby
- "Youth is a dream, a form of chemical madness." - The Diamond As Big As The Ritz
Quotes both wise and well written. You can read more here.
With all the news of sexual harassment recently, there has been much discuss about sexual harassment training. Even Congress is considering sexual harassment training for its members and staff.
However, sexual harassment training will do no good unless it also includes training in cognitive biases. Three kinds of people are in sexual harassment training: 1) those who don't need it because they already know how to act like human beings, 2) those who realize what they are doing and don't care, and 3) those who think sexual harassment is wrong but don't recognize that they are sexual harassers because of cognitive biases. Sexual harassment training will do no good for those in group 2. What members of this group need to curtail their misconduct is the threat of punishment and public embarrassment. Sexual harassment training, however, can help those in group 3, but only if they are shown that cognitive biases are preventing them from recognizing that they are sexual harassers.
Take an example from behavioral legal ethics concerning conflicts of interest. David Boies represented Harvey Weinstein in his defense against allegations of sexual harassment. He was also an attorney for the New York Times, which was reporting on Harvey Weinstein. Concerning this conflict, Mr. Boies stated, "If evidence could be uncovered to convince The Times the charges should not be published, I did not believe, and do not believe, that that would be adverse to The Times’s interests." Mr. Boies is a prominent, successful attorney. He probably intended to be an ethical attorney, and he was probably shocked when allegations of a conflict of interest were asserted against him. However, any objective person would see his representation of two parties with adverse interests as a conflict of interest. Why did such an intelligent man fail to see this egregious ethical breach? Cognitive biases. Mr. Boies suffered from the overconfidence effect, and he had bias blind-spot concerning his own conduct. He thought he could avoid an ethical violation under these facts, even if lesser attorneys couldn't.
The same thing applies to sexual harassment training. Many harassers know the pitfalls of sexual harassment, but, because of cognitive biases, such as the overconfidence effect and bias blind-spot, they wrongly think they can avoid them. For example, some college professors believe they can date a student without any problems. However, as we all know from countless news stories, when a conflict arises in the relationship, sexual harassment claims usually result.
In sum, it is not enough that sexual harassment training show what sexual harassment is. It must also show how good people can sexually harass because they are unaware of their cognitive biases.
Sunday, November 26, 2017
At this time of year, my law school puts up a white board and, next to it, post-it notes and markers. We are asked to write on the post-it notes the name of someone or something for which we are grateful and stick it on the white board.
With the stress of exams and the probable increase in negative vibes, the gratefulness board helps alleviate the negativity. The white board quickly fill up with post-it notes. I wrote one thanking Patty and Victoria, my administrative assistants.
Saturday, November 25, 2017
Friday, November 24, 2017
Wake Forest joins the growing number of law schools that will accept GRE scores in place of LSAT scores. From the official announcement:
The decision to accept the GRE as an additional valid and reliable admission test in the JD admissions process follows Wake Forest School of Law’s role as one of the first three law schools — along with the University of Arizona James E. Rogers College of Law and the University of Hawaii’s Richardson Law School — in the nation to have started a validation study of the GRE test in collaboration with Educational Testing Service (ETS). Wake Forest School of Law is the first law school in North Carolina to accept the GRE.
The Wake Forest Law study, completed recently, revealed that GRE scores were predictive of first-year law school grades, which correlate to students’ overall success in law school.
Wake Forest Law joins eight other law schools in the order of their decisions to accept the GRE scores: the University of Arizona James E. Rogers College of Law; Columbia Law School, Harvard Law School; Georgetown University Law Center; Northwestern University’s Pritzker School of Law; the University of Hawaii’s Richardson Law School; and Washington University at St. Louis. The University of California at Los Angeles School of Law allows graduate students already on campus to apply using the GRE.
Here is more information.
Thursday, November 23, 2017
The proposal not to require using the LSAT (or GRE or other test) is now before the American Bar Association Section of Legal Education and Admissions to the Bar.
From the Tax Prof Blog:
After 90 minutes of discussion on Friday afternoon [Nov. 3, 2017] and a split vote, the council of the American Bar Association Section of Legal Education and Admissions to the Bar approved a recommendation from one of its committees to delete an accreditation standard that requires law schools to test students using a “valid and reliable” admissions test.
If the proposal passes, technically, law schools wouldn’t have to test applicants at all, but they would still need to follow sound admissions practices, which likely would include the LSAT or Graduate Records Examination, since a different accreditation standard would still require schools to make sure that applicants appeared capable of graduating and passing the bar. And to determine if schools were living up to that, the legal education council still would look at admissions test data.
The biggest change would be that schools themselves would decide which test to use, without the burden of judging whether it was “valid and reliable.”
You can read more here.
Wednesday, November 22, 2017
That’s the finding of an international study commissioned by Havas, the advertising and public relations company. Here are the main findings:
- 75% of both men and women believe the two sexes are equally valuable to society
- 69% of men and 71% of women believe the sexes are equally smart
- 64% of men and 68% of women believe the sexes are equally intellectual
- 63% of both men and women believe the sexes are equally trustworthy
- 61% believe the sexes are equally hardworking
- 57% believe the sexes are equally creative/innovative
You can read the full report here.
Tuesday, November 21, 2017
As part of the continuing accounting of the impact of fake news and misinformation on the 2016 elections, this analysis tracks search results for senate and presidential candidates in that election, revealing that up to 30% of these national candidates had their search results affected by potentially fake or biased content.
This is the finding of a recent study. Here is the abstract:
This paper analyzes Google’s role in proliferating fake news and misinformation in the months leading up to and immediately following the U.S. 2016 national election. It is one section of a longer report, Fake News and Misinformation: The roles of the nation’s digital newsstands, Facebook, Google, Twitter and Reddit, that serves as the first phase of a continuing inquiry over the 2017-18 academic year.
This paper reviews the role of Google, and specifically Google Search, in the misinformation landscape. It tracks the problem of misinformation in search engines from the advent of search engine optimization and spam through the present day, focusing on Google’s efforts to curb its role in spreading fake news following the 2016 U.S. elections.
The study recommends:
in particular that Google and other companies increase data transparency, in particular for researchers, to better understand misinformation phenomena online. The study concludes that transparency and civilian oversight are the next critical steps towards a society which benefits fully from the ubiquitous and powerful technologies that surround us.
You can access the study here. Danaé Metaxa-Kakavouli & Nicholas Torres-Echeverry, Google’s Role in Spreading Fake News and Information.
Monday, November 20, 2017
Some excerpts from Behavioral Ethics: Can It Help Lawyers (And Others) Be Their Best Selves? by Robert A. Prentice will further illuminate what behavior legal ethics is.
"Behavioral ethics is the body of learning that focuses on how and why people make the ethical (and unethical) decisions that they do." (emphasis added)
This one is very important: "Behavioral ethics is primarily descriptive, rather than normative, explaining how cognitive heuristics, psychological tendencies, social and organizational pressures, and even seemingly irrelevant situational factors can make it more likely that good people will do bad things." In other words, traditional ethics assumes that humans are rational actors. Behavioral legal ethics studies how the psychology of our minds and environmental factors affect this rational actor model. (bounded rationality). Thus, legal behavioral ethics does not replace traditional ethics; it adds to it. Finally, behavioral legal ethics is to traditional legal ethics as behavioral economics is to traditional (rational actor) economics. Behavioral ethics and behavioral economics are based on the same observations.
"[T]eaching behavioral ethics in law schools, business schools, and elsewhere has a realistic chance of increasing students’ (and others’) ability and inclination to live up to their own moral standards, which should have a beneficial impact on society and the world we live in. It can move the needle in the right direction."
"Concentrating not on how people should decide but upon how they do decide, Kahneman, Tversky, and their progeny have established beyond dispute that people are rational, but only boundedly so."
"Because of psychological and related factors, 'many people are blind to their own unethical conduct.'"
"If the principles underlying behavioral psychology, behavioral economics, and related fields can help realize policy goals by shaping human behavior, then it is plausible to believe that comparable principles might improve moral behavior if properly applied."
"If people can be fruitfully warned about their vulnerability to psychology-based marketing techniques so that they can guard against them, as seems to be the case, then perhaps they can be similarly educated regarding how to avoid making ethical mistakes caused by these same and related phenomena."
"Thaler and Sunstein note that by changing the choice architecture—the conditions under which people make decisions—employers, governments, and others can dramatically affect the outcome of those choices. In theory, this should apply to ethical decisions as well as to other categories of decisions."
Finally, here is a quote from another article, "The most important conclusion of the research on behavioral ethics, however, may be on how ethics is currently taught in professional schools. Rather than teaching students how they should behave when facing ethical dilemmas, or informing them about what philosophers would recommend, the behavioral ethics perspective suggests a different approach. Behavioral ethics sees an opportunity in helping students and professionals better understand their own behavior in the ethics domain, and compare it to how they would ideally like to behave. We believe that only by reflecting on their ethical failures and the inconsistencies between their desire to be moral and their actual behavior they can rise to the actions (and ethical standards) that their more reflective selves would recommend." (here at 32)
I hope these posts have helped you understand the importance of behavioral legal ethics. While this field is still in its infancy, I believe that it will soon dominate legal ethical research and teaching.
From the Associated Press:
President Donald Trump is nominating white men to America’s federal courts at a rate not seen in nearly 30 years, threatening to reverse a slow transformation toward a judiciary that more closely reflects the nation’s diversity.
So far, 91 percent of Trump’s nominees are white, and 81 percent are male, an Associated Press analysis has found. Three of every four are white men, with few African-Americans and Hispanics in the mix. The last president to nominate a similarly homogenous group was George H.W. Bush.
You can read more here
Did you know that an attorney who represented the New York Times was, at the same time, helping Harvey Weinstein cover up his sexual misconduct? "One of the nation’s most respected lawyers, David Boies, is among those whose work helped Mr. Weinstein try to conceal his abusive behavior." (here) "Mr. Boies’s representation posed a conflict of interest, because his firm, Boies Schiller Flexner, was representing The New York Times, the 'leading NY Newspaper,' in libel litigation at the same time."
"Mr. Boies denied that efforts to discredit the Times story reflected such a conflict. In his view, it was 'entirely appropriate to investigate precisely what he' — Mr. Weinstein — 'was accused of doing and to investigate whether there were facts that would rebut those accusations.' And he added, If evidence could be uncovered to convince The Times the charges should not be published, I did not believe, and do not believe, that that would be adverse to The Times’s interests.'"
The Times noted that this was an ethical conflict: "A lawyer who represents them is prohibited from accepting other matters that would reasonably be considered adverse to their interests without their informed written consent." Mr. Boies defended himself: "Mr. Boies responded in a public statement that his firm had a clause in its retainer agreement with The Times that purported to waive all conflicts of interest on matters unrelated to cases in which the newspaper had retained the firm. But as The Times’s leadership pointed out in its own statement, it never contemplated that the firm would contract with investigators to do opposition research on its own reporters."
Why did Mr. Boies engage in conduct that so clearly violated written ethical rules? The conventional answer would be that Mr. Boies is inherently bad, but a new group of legal ethical scholars would say that his behavior was due to "a combination of situational pressures and all too human modes of thinking." (BLE at 5) Stated differently, "While most of us desire to act ethically, 'psychological processes . . . [can] lead people to engage in ethically questionable behaviors that are inconsistent with their own preferred ethics.'" (Id. at 8) Or, as stated by Dan Ariely "What we found is that when people are thinking about honesty versus dishonesty, it's all about being able, at the moment, to rationalize something and make yourself think that this is actually okay." (here) Concerning Mr. Boies's conduct, he rationalized that his actions were not a conflict of interest adverse to the NY Times's interests because of defects in the human thought processes, called cognitive biases.
Professors Jennifer K. Robbennolt & Jean R. Sternlight coined the term "Behavioral Legal Ethics" to describe the effects of cognitive processes on lawyer's ethics. (BLE) These authors declare, "The psychology we present here helps explain how ethical lapses can occur more easily and less intentionally than we might imagine, providing substantial insight into why attorneys sometimes behave unethically, why attorneys may have difficulty curbing or reporting the unethical conduct of their clients or fellow attorneys, and why it is often difficult for attorneys to learn from their own ethical missteps and the missteps of others. It also helps us see how, even as we make what could be considered to be unethical decisions, we may still believe we are ethical actors. At the same time, the psychological research also provides insight into why attorneys are often able to resist substantial pressure to act unethically—pressure that comes from clients, adversaries, superiors, and their own self-interest." (Id. at 6)
Excerpts from BLE:
"Ethical lapses occur more easily and less intentionally than we might imagine. While most of us desire to act ethically, 'psychological processes . . . [can] lead people to engage in ethically questionable behaviors that are inconsistent with their own preferred ethics.'"
"Unethical decisions are more likely when the decision maker does not see the decision at hand as involving ethical issues or when she believes that any potential ethical challenges can easily be overcome. Each of us tends to believe that we see the world objectively; to see ourselves as more fair, unbiased, competent, and deserving than average; and to be overconfident about our abilities and prospects. This tendency to view the self in positive terms is heightened when the characteristic at issue is socially desirable—as is the case with ethical behavior. Indeed, attorneys tend to believe that their own ethics and their firm’s ethical standards are more stringent than those of other attorneys and other firms."
"[P]eople commonly make inaccurate forecasts of their own future emotions and behavior—and, thus, may predict that they will act ethically when this is not necessarily so."
"Another factor that can contribute to our bounded ethics is that the path to unethical conduct often runs along a slippery slope. Just as it is frequently extremely difficult for people to visually detect changes in their environment, so can it be quite difficult to notice when conduct degrades gradually."
"Ethical blindspots and the contours of the slippery slope contribute to a process of ethical fading or moral disengagement in which decision makers 'do not ‘see’ the moral components of an ethical decision, not so much because they are morally uneducated, but because psychological processes fade the ‘ethics’ from an ethical dilemma.'"
"Different ethical climates can push behavior in different directions. But, while it is important to promote ethical behavior, it is also important to promote ethical behavior for the right reasons. It turns out that instrumental ethical climates grounded in not getting caught, self-interest, or individual advancement tend to be associated with a greater likelihood of unethical behavior as compared to ethical climates based on benevolence or concern for clients, colleagues, or social justice. Thus, whereas a culture of 'eat what you kill' might be a fertile breeding ground for unethical behavior, climates based on principles or rules and standards tend to be associated with more ethical behavior."
The above gives you a flavor of how behavioral legal ethics differ from conventional legal ethics, which teaches students the rules and then threatens punishment for breaking those rules. The new discoveries demonstrates that teaching legal ethics most be more nuanced; it must show students how defects in human reasoning can lead to unethical behavior. It also demonstrates that students must be taught to overcome, as best they can, the defects in their reasoning.
This means that there must be a new type of legal ethics class. As I described last week, Tigran Elred has created such a class (here). As I have stated several times, schools should help their students develop their professional identities. This includes teaching them about psychology and cognitive biases because students need to understand their psychological processes to understand theirselves. I included a chapter on human psychology and cognitive biases in my book Developing Your Professional Identity: Creating Your Inner Lawyer.
Behavioral Legal Ethics is an exciting new field. It is only in its infancy, but it has already helped us understand how law schools should be teaching their students ethics.
Sunday, November 19, 2017
Akron School of Law launches Master of Studies in Law degree program to train non-lawyers in legal skills
Akron is one of a group of law schools (my own included) that are exploring the demand for those who'd like to study law to advance in their chosen careers but aren't interested in obtaining a J.D. Thus, Akron launched this fall a Master of Studies in Law degree program with an inaugural class of six students who will take 30 credit hours at an annual cost of just over $24K. The school's law profs are teaching the curriculum which includes courses in contracts, torts, property, criminal law, civil procedure and the fundamentals of intellectual property. Among the backgrounds of those students who've enrolled this fall are a personal banker, patient liaison and a corporate quality assurance officer. Here's an excerpt from Akron Legal News which provides more details about the school's new program:
While the program was approved in the summer of 2016, Matthew J. Wilson, former Akron Law dean and president of The University of Akron, said the plans have been in the works for a while.
”The law school faculty had started talking about creating a master’s in law program before my arrival in 2014,” said Wilson. “When I started at the law school, I reignited the discussion and began working with the faculty to put the program together and obtain the necessary university and state approvals.
“I think the degree is something that is beneficial and needed in the marketplace,” said Wilson. “Oftentimes people cannot afford either financially or timewise to get a three-year juris doctor degree, yet they do need a better understanding of legal issues to help them do their jobs or secure gainful employment.
“This program provides the chance for them to enhance their abilities and knowledge in as little as two semesters if they go full time, or two to three years if they study on a part-time basis. Fortunately at Akron Law, students have the flexibility of studying during the day or night and commencing their masters studies in August, January or May.”
As of the fall of 2017, full-time MSL tuition and fees for Ohio residents cost $24,214, with non-residents paying just $100 more to cover an out-of-state surcharge.
To apply a candidate must have a bachelor’s degree or the equivalent and provide a personal statement and letters of recommendation. Non-native English speakers must submit evidence of English proficiency.
“We do not require that applicants take the GRE or the LSAT,” said Peters. “We will look at undergraduate grades, majors, life experience and ability to write. If applicants choose to submit standardized test scores, we will consider them.”
You can continue reading here.
Let me recommend Joe Kimble’s new book, Seeing Through Legalese (Carolina Academic Press). Joe is the recognized leader in the effort to bring a clearer, plainer style to legal writing and drafting.
In this book, he collects a number of essays that he has written. In the essays, Joe makes his case with examples of how plain English improves writing. The book is full of before-and-after versions of documents that we can use as illustrations in our teaching. You will enjoy this book and learn from it.
As Joe writes, the struggle for better writing and drafting is an ongoing endeavor:
Just know that more forces are at work for better legal writing than ever before — in the law schools, in the literature, in the CLE courses, in various pockets of government, and in multiple organizations and groups worldwide. No revolution; just a gradual cutting down and cleaning up of one verbose pile after another, until readers can see more easily through the legalese — to the light of clarity.