Editor Blog, Uncategorized

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… Continue reading Article Preview: A Behavioral Approach to Lawyer Mistake and Apology

Article Preview, Behavioral Legal Ethics, Editor Blog, New England Law Review, Symposium

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 Behavior Ethics and the Four-Component Model of Moral Judgment and Behavior, 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 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.

Due Process, Eldred, Faculty Blog, Federal Courts, Judges, New England Law Review, U.S. Supreme Court

Faculty Blog: The Psychology of Conflicts of Interest in Williams v. Pennsylvania

The U.S. Supreme Court’s recent decision in Williams v. Pennsylvania, handed down during the turmoil in the presidential campaign over the heated rhetoric on judicial impartiality, adds to the Supreme Court’s growing jurisprudence on the due process requirements for judicial disqualification. The issue in the case—whether a justice on the Pennsylvania Supreme Court could properly adjudicate a death penalty case when he had previously been the prosecutor who authorized capital charges against the defendant—set the stage for a ruling that could have provided broad guidance on the due process parameters for judicial disqualification, especially in criminal cases. Yet the Court’s holding may end up having only limited impact. As others have already started to note, the test announced by the Court—“that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a crucial decision regarding the defendant’s case”—will be hard to prove and adds little additional guidance to what is already available under existing ethical standards for judicial recusal in most states. In addition, my guess is that there are few cases in which a prosecutor-turned-judge will be asked to rule on a case in which he or she was previously involved, so this test is likely to directly apply to only a narrow band of future situations.