Monday, November 20, 2017

More on Behavioral Legal Ethics

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.

(Scott Fruehwald)

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