Sunday, May 31, 2020

Behavioral Ethics, Deception, and Legal Negotiation by Russell B. Korobkin

Here is an excellent article on behavioral legal ethics and legal negotiations:

Behavioral Ethics, Deception, and Legal Negotiation by Russell B. Korobkin.

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.'

Behavioral legal ethics has become a key topic in the legal ethics field.  Korobin says this about BLE:

"This Article contributes to this literature by viewing legal negotiation through the lens of social science research in the field of 'behavioral ethics.' The core finding of body of research is that much unethical behavior is not attributable to the classic Holmesian 'bad man,' who is consciously amoral—that is, interested only in his own gratification and completely unconcerned with the interests of other individuals or societal norms and expectations. Rather, cognitive and motivational biases often enable and even encourage people who care about other individuals and society more generally, rather than just themselves, to act in ways neutral observers would view as unethical, without ever recognizing their behavior as such."

(Scott Fruehwald)

https://lawprofessors.typepad.com/legal_skills/2020/05/behavioral-ethics-deception-and-legal-negotiation-by-.html

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