Moral Character and (Legal) Ethics Education

One of my research projects for the summer is to get a handle on the social psychology research on character and its effects on human behavior.  Well, that description is a bit too ambitious -- the project is really to figure out how this vast literature matters for moral philosophy, and I'm helped a great deal in this endeavor by an excellent recent book by John Doris (formerly of UC-Santa Cruz, now at Wash. U.), Lack of Character.  Doris's claim, based on extensive familiarity with experimental social psychology, is that a person's character, personality, virtue, or what have you makes considerably less difference to behavior than is commonly assumed.  Knowing that a person is honest or compassionate tells us relatively little about whether he or she will cheat or come to the aid of another in a given situation.  If the empirical research actually means what Doris says it does, teachers who aim to affect their students' character, judgment, or ethical reflection have some hard questions to ask themselves. 

Some of the studies Doris relies on are quite well known, such as the Milgram  experiments on obedience to authority and the Stanford Prison Experiment.  In this group, the "Good Samaritan" study is particular fascinating:  A group of students at Princeton Theological Seminary were told they were participating in a study of how quickly they could think on their feet as they prepared to preach a sermon.  One group was told to deliver a sermon on the parable of the Good Samaritan (in which an outcast from the community was the only one of three passers-by to render aid to a traveler in distress) and the other group was given a topic having nothing to do with helping behavior.  As they were leaving, each student was told that he or she either had plenty of time to get to the building where the sermon would be delivered, that he or she was basically on time, or that he or she was late and had to hurry.  The "hurry" condition was randomly distributed with respect to the topic of the sermon -- that is, some of the students in each group (no hurry, moderate hurry, big hurry) preached on each topic.  On the way to the other building, the students encountered a "victim" (actually a confederate of the experimenters) slumped against a doorway, in some apparent distress.  The victim did not look particularly threatening, and the experiment took place during the day.  One might think that the students' likelihood of helping would depend on whether they had recently been mulling over the Good Samaritan story, but actually the subject of the sermon made absolutely no difference to observed helping behavior.  Of the students told they were in a big hurry, 10 percent stopped to help; of the group told they were just on time, 45 percent stopped to help; and of the students told they had plenty of time, 63 percent assisted the "victim."  The study, by the way, is reported in J.M. Darley & C.D. Batson, "From Jerusalem to Jericho:  A Study of Situational and Dispositional Variables in Helping Behavior," 27 J. of Personality and Social Psych. 100 (1973).

This and many other studies show that antecedently existing moral character traits (presumably divinity students are commonly regarded as more compassionate than the average person) and even specific attempts to change behavior through moral instruction have less influence on behavior than seemingly insignificant situational variables.  If these findings are valid, then is there any room for education that aims to influence one's character or values?  In the context of the subject of this blog, I often hear the claim that legal ethics education ought to be about more than just learning and applying a bunch of legal rules -- the law of lawyering, as it's called.  Legal ethics education ought to be about inculcating the right kind of moral character.  Leaving aside questions of whether we could agree on what constitutes the right character for lawyers (does Lynne Stewart have it?  John Yoo?  Joe Jamail?), research in social psychology suggests that contextual features wholly unrelated to character have a much more profound influence on behavior. 

This doesn't mean simply giving up the game of ethics, and certainly not legal ethics.  Where the behavior of lawyers is involved, we can always fiddle with the rules, impose new duties (e.g. the S-Ox up-the-ladder reporting requirement), step up enforcement, create new lines of accountability (such as the loss prevention programs that malpractice insurers often require of insured law firms), or try to make informal enforcement mechanisms more effective.  The one thing that seems likely not to work, however, is affecting the character of lawyers and law students directly.  This suggests we can show To Kill a Mockingbird at CLE's all we want, and it won't make a darn bit of difference.  I'm not denying that ethical reflection is an interesting process, or that the subject of ethics (here in the sense of "ethics beyond the rules") is an important discipline for study.  Insofar as we aim to affect behavior, however, the best available empirical research seems to suggest that attempting to modify students' (or lawyers') character is likely to be useless. 

Comments

[Dennis J. Tuchler]

In a way, this is good news, given the very limited degree to which we law teachers have a role in the shaping of already well-shaped characters. I don't think that virtue training or virtue exercise is the only way we can affect the way that our students will consider and respond to particular kinds of situations in practice.

[Scott Moss]

You should look at the article, "Does Studying Economics Inhibit Cooperation?" by Robert Frank. Unsurprisingly, the answer is "yes."

[Tigran Eldred]

Brad: Some of the most interesting research I have seen in this area is being done by Jon Haidt, a social psychologist at the University of Virginia (his home page is: http://wsrv.clas.virginia.edu/~jdh6n/home.html).

His seminal article, "The Emotional Dog and Its Rational Tail: a Social Intuitionist Approach to Moral Judgment," is a fascinating read. If I understand the social science correctly, the basic claim is that moral judgments are primarily the result of quick, automatic affective and moral heuristics that sidestep rational deliberation (he calls the process "social intuition"). Haidt's article, and other writings, make the claim that rational ethical deliberation is an important element for an integrated understanding of ethical behavior, but that it's role is more limited and less causal than otherwise believed.

The larger conclusion for legal education, it seems to me, is not to abandon emphasis on rules and cases in PR classes, but to integrate them into a larger discussion about these perspectives -- the purpose of which is to focus attention on the complexity of the subject. Maybe every PR class should start with a video presentation, and then discussion about, Milgram's obedience experiments (there's a great clip of them in the new documentary about Enron, fyi). It also suggests that experiential learning may be the key to influencing students’ hardwiring on ethical issues (was John Dewey right after all?).

[John Steele]

Very interesting post. Tigran's comments are prompting me to note a PR teaching technique that has always seemed to work for me -- and perhaps now I know why.

When we first discuss a fact pattern, I often ask for a show of hands based on "your moral intuition," or "your perhaps half-baked notion of what the right answer should be." The choices are deliberately simplistic: good/bad; do it/don't do it; permit it/ban it. From there we move to the text of the rule itself, to various interpretations of the rule, and then to discussions of what the rule ought to be.

[John Steele]

I wonder if we can teach the phenomenon Brad mentions. That is, would student awareness of the effect of contextualized features help them counteract those features? We always discuss "ethical climates" within institutions, and I offer my views on the climates leading to the S&L crisis, restatement of earnings at tech companies, the fall of Arthur Andersen, and Enron, etc. We also discuss the importance of having an ethical sounding board who doesn't work in the same setting. It's surprising how often when a lawyer is uncomfortable and anxious and asks for ethics advice from an outsider, the correct course of conduct becomes immediately apparent. The outsider, presumably, is not in the thrall of the contextualized features that are leading the lawyer to do what she otherwise would not do. I think "To Kill A Mockingbird" is important for some (not me) as inspiriation, but perhaps a discussion like the kind Brad suggests is a more practical type of teaching.

[Duncan Webb]

I have always found the stance that we (law teachers) should seek to change the way our students behave as deeply flawed in a number of respects. Let me count the ways.
1. It is arrogant to assume that for some reason academics have any special insight as to the proper way to approach a moral problem. In fact we are very poorly situated being well removed from any of the actual tensions of legal practice. I refuse to morally condemn a lawyer for acting in the face of a conflict because of the pressures by partners/commercial practice. However, as Brad notes, we can legislate and discipline accordingly.
2. Students' moral positions are well established by the time we get to them. The suggestion that by a course that is (for us anyway) fascinating and challenging, we can actual alter the way in which a young lawyer will approach the practice of law is naive.
3. The material Brad traverses consolidates the fact that even if you change your student's outlook it is unlikely to change thier behaviour.
4. Atticus Finch was bad. Well that is one (possible misrepresentation) of the very respectable view of Tim Dare. If such a scholar thinks that and another scholar (like Brad) thinks otherwise, what kind of improvement can there be if both of those scholars are seeking to alter thier respective student's character.

I fear I am a most deplorable sceptic. I agree, challenge students, make them aware of who/what they are, and educate them as to the choices they must make and the framework in which they must be made. But in terms of what you think you might achieve, modesty is everything. If you are interested in such heresy you can torture yourself further by reading “Ethics as a Compulsory Element of Qualifying Degrees: Some Modest Expectations” (2001) Legal Ethics 109 – 126.

[John Steele]

For some contrarian views of Atticus Finch, including the article Duncan mentions, see:

Dare, Tim "Lawyers, Ethics, and To Kill a Mockingbird" Philosophy and Literature - Volume 25, Number 1, April 2001, pp. 127-141

Lubet, Stephen, Classics Revisited: Reconstructing Atticus Finch, 97 Michigan Law Review 1339 (1999)