The Death and Rebirth of Codes of Legal Ethics: How Neuroscientific Evidence of Intuition and Emotion in Moral Decision Making Should Impact the Regulation of the Practice of Law
47 Pages Posted: 21 Aug 2015 Last revised: 12 Nov 2015
Date Written: August 1, 2014
The only constant in the regulation of legal ethics in the United States has been change. With the adoption of the Model Rules of Professional Conduct, the legal profession as a whole has arrived at a rationalist model for the regulation of the practice of law because the Model Rules are rules of reason. The problem is that recent evidence from the field of moral cognitive neuroscience suggests that individuals commonly resort to irrational thinking when making moral decisions by drawing upon intuition and emotion when faced with ethical dilemmas. This evidence validates various theories and models about moral decision making from other disciplines, and it complicates the regulation of legal ethics because rational rules are currently being used to govern what is at least in part irrational thinking.
This article argues that the legal profession should begin taking a dual process approach to regulating legal ethics because it better conforms to how people make moral decisions through a mix of both intuition and reason. This article concludes that an approach that is similar to the Model Code of Professional Responsibility is the best model for regulating the practice of law because such an approach entails both ethical standards and rules for purposes of regulating ethical behavior. Such an approach is superior because it appeals to irrational, intuitive thinking through standards and rational thinking through rules. In essence, it offers a dual process model for formulating and enforcing codes of legal ethics that mirrors how individuals think in making moral decisions.
This approach is superior to either rationalist or intuitionist approaches because it sets basic rules for lawyers while using standards to fill in the gaps and ambiguities that invariability exist in and among rules. Clients and others dealing with lawyers are better protected because this dual process approach provides a comprehensive system of regulation. In addition, society is likely to be more comfortable with such an approach because a system of regulation can be created that engages and satisfies society’s collective intuitions and reasoning about what is permissible in the practice of law. Under a dual process approach, clear mandates should trump intuition and emotion, and the specificity of rules should be honored above broad standards and norms. In addition, a system employing a dual process approach to regulating the practice of law should also be updated regularly to reflect evolving intuitions regarding what is just. The time has come to conform legal ethics to scientific reality and to offer a system of professional regulation that is state of the art.
Keywords: Behaviorial Ecomics, Legal Ethics, Metaethics, Moral Psychology, Neuroscience, Neurolaw
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