Article Preview: Lawyering Practice: Uncovering Unconscious Influences Before Rather Than After Errors Occur

It will likely come as no shock that most lawyers will inevitably face ethical challenges shortly after they begin to practice law. The types of ethical dilemmas faced by new attorneys, and the manner in which those ethical challenges are resolved, is largely dependent on the environment in which the new attorney has chosen to work. Associate Dean Catherine O’Grady’s recent legal scholarship has focused on the ethical decision-making of new attorneys working in private law firms. In her latest article, A Behavioral Approach to Lawyer Mistake and Apology, Associate Dean O’Grady argues that senior lawyers in law firms should examine ethical missteps made by lawyers through the lens of social psychology. By focusing on behavioral principles of psychology, Associate Dean O’Grady believes, senior lawyers in law firms will be in a better position to address ethical lapses after they occur and to prevent their recurrence by developing leadership models that allow them to pass their insights on to the firm’s new lawyers.

In Professor Wallace J. Mlyniec’s response to O’Grady’s article, titled Lawyering Practice: Uncovering Unconscious Influences Before Rather Than After Errors Occur, Professor Mlyniec argues that Associate Dean O’Grady’s after-the-fact approach to rectifying ethical lapses should be coupled with more robust training and contemporaneous reflection. Professor Mlyniec, drawing from his experience as a long-time clinical law professor, maintains that training that allows for reflection by new attorneys prior to beginning work on a client matter will make the attorney cognizant of problematic ethical and professional issues before they arise. Professor Mlyniec argues that a deterrence-oriented training model, although costly and time-consuming, will increase the probability that ethical issues are dealt with before they come to fruition. This model will allow firms to better prevent any potential damage arising from ethical and professional lapses of the firm’s new attorneys.

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Faculty Blog: The Most Important Qualification for a Post in President Trump’s Cabinet

By: Lawrence M. Friedman and David M. Siegel

As the confirmation process for President Trump’s cabinet comes to a close, it’s worth noting that Senators have failed to question any of the nominees about their understanding of their constitutional responsibilities under the Twenty-Fifth Amendment, much less whether any would be willing to fulfill those responsibilities. That Amendment provides for succession when the President “is unable to discharge the powers and duties of his office”—either when the president declares this inability or when a majority of “principal officers of the executive departments,” together with the vice president, make that determination. It is this latter situation that we should hope the members of President Trump’s cabinet fully appreciate.

This President has insisted, throughout the campaign and into his first weeks in office, on the truth of facts at odds with objective reality—sometimes harmless, and at other times in ways that have antagonized America’s longstanding allies. To their credit, some cabinet nominees have acknowledged, tacitly, their divergence from the Chief Executive on many of these points. But that acknowledgment is just the start: the Constitution charges the members of the cabinet with determining whether the President’s inability to accurately perceive and respond to objective reality poses a threat to our national security. Should they make such a determination, they, together with the Vice President, have a duty to act on that information and trigger the succession provisions of the Twenty-Fifth Amendment.

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Article Preview: Intentional Infliction of Emotional Distress & The Hulk Hogan Sex Tape

Most people know that, in 2016, Terrence “Hulk Hogan” Bollea was awarded $140 million by a Florida jury after successfully suing Gawker Media, LLC for invading his privacy when it released a video of Hogan having sex with a friend’s wife. However, it often goes overlooked that Hogan was also successful in a separate cause of action for intentional infliction of emotional distress (IIED). Professor Clay Calvert explores this aspect of Hogan’s case in his Article, Intentional Infliction of Emotional Distress & The Hulk Hogan Sex Tape: Examining a Forgotten Cause of Action in Bollea v. Gawker Media, the Gap It Reveals in IIED’s Constitutionalization, and a Path Forward for Revenge Porn Victims.

At the outset of his Article, Professor Calvert explores Florida’s legal definition of IIED and its elements, as applied in Bollea. He also describes the constitutional layer of protection for defendants in speech-based IIED claims added by the U.S. Supreme Court in Hustler Magazine v. Falwell and Snyder v. Phelps. Specifically, Professor Calvert utilizes the decisions reached in Falwell and Snyder to explain the tension between IIED and the freedom of speech protected by the First Amendment. Professor Calvert asserts that while these cases strengthened First Amendment protections, they alternatively narrowed the circumstances in which an IIED claim can prevail.

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Article Preview: A Behavioral Approach to Lawyer Mistake and Apology

Why do new attorneys make mistakes? How can new attorneys remedy these mistakes and avoid them in the future? How can law firms provide the guidance necessary to assist new attorneys in their transition to the profession? In her article, A Behavioral Approach to Lawyer Mistake and Apology, Associate Dean Catherine Gage O’Grady utilizes testimonials from practicing attorneys, principles from behavioral psychology, and examples from the medical profession to answer those questions; and she provides a detailed behavioral analysis of lawyering and legal ethical decision-making.

Associate Dean O’Grady begins her article by reviewing several concepts, such as overconfidence bias and cognitive dissonance, that are fundamental to an understanding of behavioral psychology. She argues that these concepts lead to mistakes in the law firm setting, and she provides several examples of how the concepts may affect new attorneys. For example, Associate Dean O’Grady states that confirmation bias—“the tendency to focus on information that confirms our decisions and to undervalue information that cuts the other way”—may lead a new attorney to make significant mistakes while performing legal research. This is because a new attorney will focus his or her research efforts to confirm legal conclusions already reached, even if those conclusions were wrong from the beginning. She also argues that cognitive dissonance—“a state of tension that occurs when a person realizes she is holding two psychologically inconsistent idea or beliefs”—can also result in lawyering mistakes. Associate Dean O’Grady poses the example that when a new attorney, who thinks of him- or herself as timely and organized, is suddenly faced with a new failure to stay organized or respond to client emails, he or she will experience cognitive dissonance and will likely make excuses for these mistakes. The new attorney, therefore, will be unable to acknowledge his or her mistakes.

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Article Preview: Moral Courage in Indigent Defense

Why do some individuals act more ethically than others, even in similar situations? This is the question Professor Tigran Eldred explores in his article, Moral Courage in Indigent Defense. Professor Eldred narrows this question to a familiar domain from his past work, the many ethical challenges that defense lawyers are confronted with while representing indigent clients.

Professor Eldred’s article—a response to Associate Dean Catherine Gage O’Grady’s article, A Behavioral Approach to Lawyer Mistake and Apologyfocuses around the phenomenon of “moral courage,” the ability of some lawyers to act ethically in the face of pressure to the contrary. He seeks to answer why some lawyers resist the temptations against subpar performance and also offers knowledge on what can be done to encourage greater acts of moral courage by others. While Associate Dean O’Grady’s article focuses on mistake recognition and acknowledgement, Professor Eldred focuses on why people are able to act ethically despite pressures to do otherwise.

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Faculty Blog: The Post-9/11 Weight of Korematsu

By: Lawrence M. Friedman and Victor M. Hansen 

Associates of President-elect Donald J. Trump have suggested that the infamous Supreme Court decision upholding the internment of Japanese-Americans during World War II, Korematsu v. United States, could be used to justify measures aimed at tracking and potentially detaining Muslim-Americans and Muslim immigrants. As Professor Noah Feldman has recently noted, the Korematsu decision is widely regarded today as having been wrongly decided and it has been, as Justice Stephen G. Breyer has put it, “discredited.”

But there is another reason why the precedential value of Korematsu has been diminished: its basic premise has been undermined by the Supreme Court’s more recent decisions in Hamdi v. Rumsfeld and Boumediene v. Bush.

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Article Preview: Ain’t Misbehaving: Behavioral Ethics and Rest’s Model of Moral Judgment

Lawyers and law students are taught how to spot ethical issues through analysis of hypothetical situations. When it comes to recognizing our own ethical mistakes, there appears to be a disconnect between the ability to apply that knowledge to theoretical situations and to use it to resolve situations in practice.

In their article Ain’t Misbehaving: Behavioral Ethics and Rest’s Model of Moral Judgment, authors Milton C. Regan, Jr. and Nancy L. Sachs respond to Associate Dean Catherine Gage O’Grady’s analysis of the “dynamics that can affect new lawyer’s ability to recognize that they have made a mistake and their willingness to acknowledge it to others.” As both Associate Dean O’Grady and the authors point out, these kinds of mistakes can have significant ethical implications if the mistaken attorney cannot or will not acknowledge the impact of her error. In order to assist in the process of acknowledgment and avoid ethical issues, Regan and Sachs propose a framework for guiding these issues to their appropriate conclusion. Regan and Sachs find value in the union of psychology and ethics to guide the thinking of a new lawyer deciding whether to acknowledge her mistake to others and the ethical violations that can arise from that choice.

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Article Preview: Lawyers, Impression Management and the Fear of Failure

Lawyers often struggle to recognize and learn from their mistakes. Associate Dean Catherine Gage O’Grady has made the argument in her article, A Behavioral Approach to Lawyer Mistake and Apology, that this is a result of cognitive biases, and offered insight about how law firms might respond to facilitate learning, professional growth, and stronger ethics. In his Response Article, Lawyers, Impression Management and the Fear of Failure, Donald C. Langevoort not only supports O’Grady’s position, but also presents additional reasons to pay close attention to the insight provided by Associate Dean O’Grady.

At the outset of his response article, Langevoort suggests that researchers who attempt to predict lawyers’ behavior face challenges when relying on cognitive or social psychology understandings. Specifically, he points out that the means by which information is gathered and used by psychological experimentation is inherently problematic. Langevoort recommends that researchers should contemplate taking additional and, in his view, necessary steps before offering predictions and suggestions about the behavior of lawyers. Although he strongly urges researchers to follow his recommendations, Langevoort acknowledges that doing so may be difficult because lawyers often fail to cooperate with researchers.

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Faculty Blog: Deportation of Undocumented Persons and DACA Beneficiaries Could Crash this Country

By: Dina Francesca Haynes 

President Elect Trump has indicated, in his 100–day plan, that he would, on his first day in office, invalidate all unconstitutional Executive Orders issued by President Obama. Those of us who work in the immigration and constitutional law fields understand this to mean that in January, among other actions, approximately one million young people here pursuant to Executive Action and currently in high school, college, or the military, or who have recently completed one of these, will become deportable. These are the DACA recipients, beneficiaries of Deferred Action for Childhood Arrivals. They are in school with you or your children. They work alongside you. They pay college tuition (they are not eligible for federal financial aid, so they pay a lot of college tuition). Those who applied and were successful received work authorization and a temporary promise from the Obama Administration enabling them to remain in the United States for a short period of time, so that families would not be torn apart and so that children who entered through no fault of their own, many of whom never even knew they were undocumented until they applied to college, were not punished.

If Trump goes through with his promise to invalidate DACA, he has several options, all of which have serious and perhaps unintended economic consequences that are very bad for this country.

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Faculty Blog: Analyzing Race-Based Classifications After Fisher

By: Lawrence M. Friedman 

In his dissenting opinion in Fisher v. University of Texas, Justice Alito argues that the Court indulged the university’s “plea for deference” in the application of strict scrutiny to its race-based affirmative action program. And he’s probably right, too: the scrutiny the majority applied in Fisher seems less strict than the scrutiny the Court historically has given race-based classifications.

But this isn’t to say that the result Alito would have reached—striking down the university’s plan—is also right. For he fails to appreciate that, just as equal protection doctrine protects only individuals who are similarly situated, strict scrutiny applies in the same way only in similarly situated cases. In other words, context matters—and context explains why higher education affirmative action programs may survive judicial review where the governmental use of race in other contexts would not.

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