New England Law Review: Volume 51, Number 1 - Winter 2017

NEW ENGLAND LAW REVIEW

VOLUME 51

NUMBER 1

Winter 2017

NEW ENGLAND LAW | BOSTON

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CONTENTS

51 NEW ENG. L. REV. ___ (2017)

MARY JOE FRUG MEMORIAL SYMPOSIUM EXTENSION

WHY FEMINIST LEGAL THEORY STILL NEEDS MARY JOE FRUG: THOUGHTS ON CONFLICTS IN FEMINISM

Elizabeth M. Schneider

SYMPOSIUM ISSUE:

BEHAVIORAL LEGAL ETHICS

A BEHAVIORAL APPROACH TO LAWYER MISTAKE AND APOLOGY

Catherine Gage O’Grady

AIN’T MISBEHAVING: ETHICAL PITFALLS AND REST’S MODEL OF MORAL JUDGMENT

Milton C. Regan, Jr. & Nancy L. Sachs

LAWYERS, IMPRESSION MANAGEMENT, AND THE FEAR OF FAILURE

Donald C. Langevoort

LAWYERING PRACTICE: UNCOVERING UNCONSCIOUS INFLUENCES BEFORE RATHER THAN AFTER ERRORS OCCUR

Wallace J. Mlyniec

MORAL COURAGE IN INDIGENT DEFENSE

Tigran W. Eldred

COMMENT

CRYING FOWL OVER CHURCH’S CHICKEN SANDWICH TRADEMARK: HOW EMPLOYEES LOSE OWNERSHIP RIGHTS TO THEIR IDEAS

Somto C. Ojukwu

NOTES

READING, WRITING, AND RETHINKING DISCIPLINE: EVALUATION OF THE MEMORANDA OF UNDERSTANDING BETWEEN LAW ENFORCEMENT AND SCHOOL DISTRICTS IN MASSACHUSETTS

Dara Yaffe

WHISTLEBLOWING FROM THE BENCH

Zachary J. Gregoricus

SHOOTING IN HIGH DEFINITION: HOW HAVING TOUGH POLICIES IN PLACE MAKES THE USE OF BODY CAMERAS IN LAW ENFORCEMENT COMPORT WITH THE FOURTH AMENDMENT

Richard Shiller

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FACULTY

ANNE M. ACTON, Professor of Law and Director of the Law Library, B.A., M.L.S., J.D.

GARY M. BISHOP, Professor of Law and Director of Legal Research and Writing, B.A., J.D.

ELIZABETH M. BLOOM, Associate Professor of Law and Director of the Academic Excellence Program, B.A., J.D.

DAVALENE COOPER, Professor of Law, B.A., M.A., J.D.

ROBERT A. COULTHARD, Academic Excellence Professor and Director of Bar Examination Preparation Services, B.A., J.D., LL.M.

BARBARA DORTCH‐OKARA, Professor of Law, B.A., J.D.

ALLISON M. DUSSIAS, Professor of Law, A.B., J.D.

TIGRAN W. ELDRED, Professor of Law, A.B., J.D.

RUSSELL ENGLER, Professor of Law and Director of Clinical Programs, B.A., J.D.

LISA R. FREUDENHEIM, Visiting Academic Excellence Professor, B.A., J.D.

LAWRENCE M. FRIEDMAN, Professor of Law, B.A., J.D., LL.M.

JUDITH G. GREENBERG, Associate Dean and Professor of Law, B.A., J.D., LL.M.

VICTOR M. HANSEN, Professor of Law, B.A., J.D., LL.M.

DINA FRANCESCA HAYNES, Professor of Law, B.A., J.D., LL.M.

WILTON B. HYMAN, Professor of Law, B.A., J.D., LL.M.

PETER J. KAROL, Associate Professor of Law, B.A., J.D.

ILENE S. KLEIN, Clinical Law Professor, B.A., J.D.

LISA J. LAPLANTE, Associate Professor of Law and Director of the Center for International Law and Policy, B.A., M.Ed., J.D.

WAYNE K. LEWIS, Visiting Professor of Law, B.A., J.D.

ERIC A. LUSTIG, Professor of Law and Director of the Center for Business Law, B.S., M.S., J.D., LL.M.

PETER M. MANUS, Professor of Law and Co‐Director of the Center for Law and Social Responsibility, B.A., J.D.

CARYN R. MITCHELL‐MUNEVAR, Clinical Law Professor, B.A., J.D.

GARY L. MONSERUD, Professor of Law, B.A., J.D., LL.M.

JOHN F. O’BRIEN, Dean and Professor of Law, B.A., J.D., LL.M.

KENT D. SCHENKEL, Professor of Law, B.A., J.D., LL.M.

DAVID M. SIEGEL, Professor of Law and Co‐Director of the Center for Law and Social Responsibility, B.A., J.D.

JORDAN M. SINGER, Professor of Law, A.B., J.D.

CHARLES W. SORENSON, JR., Professor of Law, B.A., M.A., J.D.

PAUL F. TEICH, Professor of Law, A.B., J.D.

MONICA TEIXEIRA DE SOUSA, Professor of Law, B.A., J.D.

J. RUSSELL VERSTEEG, Professor of Law, A.B., J.D.

ADJUNCT PROFESSORS OF LAW

ALEX AFERIAT, Lecturer on Law, B.S., J.D.

HON. GERALD ALCH, Adjunct Professor of Law, A.B., LL.B.

HON. AMY BLAKE, Lecturer on Law, B.A., J.D.

ERIC K. BRADFORD, Lecturer on Law, B.A., J.D.

ROBERT BUCHOLZ, Lecturer on Law, B.A., J.D.

ADRIENNE E. CAMIRE, Lecturer on Law, B.A., J.D.

THOMAS CAREY, Lecturer on Law, B.A., J.D.

ERIC B. CARRIKER, Adjunct Professor of Law, A.B., J.D.

ANDREW P. CORNELL, Lecturer on Law, B.A., J.D.

FRANK C. CORSO, Adjunct Professor of Law, B.A., J.D.

HON. JOHN J. CURRAN, JR., Adjunct Professor of Law, A.B., J.D.

WAYNE F. DENNISON, Lecturer on Law, A.B., M.P.A., J.D.

MICHAEL JOSEPH DONOVAN, Adjunct Professor of Law, B.A., J.D.

MICHELE DORSEY, Adjunct Professor of Law, B.A., J.D.

MARTHA DRANE, Lecturer on Law, B.A., J.D.

DAWN D. EFFRON, Adjunct Professor of Law, B.A., J.D.

AMANDA EKEY, Lecturer on Law, B.A., J.D.

PAUL FAXON, Lecturer on Law, B.A., J.D.

ERIN FITZGERALD, Lecturer on Law, B.A., J.D.

BRIAN FLAHERTY, Adjunct Professor and Reference Librarian, B.A., M.L.S.

MICHAEL GRANNE, Lecturer on Law, A.B., J.D.

LINDA GRASSO, Lecturer on Law, B.A., M.A., J.D.

LAURA GREENBERG‐CHAO, Lecturer on Law, A.B., J.D.

HON. SYDNEY HANLON, Lecturer on Law, A.B., J.D.

PATRICIA A. JONES, Adjunct Professor of Law, A.B., M.A., J.D

JOHN KIERNAN, Adjunct Professor of Law, A.B., J.D.

VINCENT LAU, Lecturer on Law, B.A., J.D., M.A.

HON. MARK E. LAWTON, Adjunct Professor of Law, B.A., J.D.

ANDREW LELLING, Lecturer on Law, B.A., J.D.

HON. STEPHEN M. LIMON, Adjunct Professor of Law, A.B., J.D.

JEFFREY LOEB, Lecture on Law, B.A., J.D.

DAVID H. LONDON, Lecturer on Law, B.A., J.D.

HON. DAVID A. LOWY, Adjunct Professor, B.A., J.D.

MAUREEN A. MACFARLANE, Lecturer on Law, B.A., M.A., M.S., J.D., M.E.L.

KRISTIN MCCARTHY, Adjunct Professor and Associate Director of the Law Library, B.A., J.D., M.L.S.

CLARE MCGORRIAN, Lecturer on Law, B.A., J.D.

PETER J. MCGOVERN, Lecturer on Law, B.A., J.D., ED.D., LL.M.

DAVID MONAHAN, Lecturer on Law, B.A., J.D.

HALIM MORIS, Lecturer on Law, B.S., J.D.

FRANCIS C. MORRISSEY, Lecturer on Law, B.A., J.D.

WENDY J. MURPHY, Adjunct Professor of Law, B.A., J.D.

GARETH ORSMOND, Adjunct Professor, B.A., M.M., J.D.

CINDY TK PALMQUIST, Lecturer on Law, B.A., J.D.

PETER PERRONI, Lecturer on Law, B.A., J.D.

LARRY PLAVNICK, Lecturer on Law, B.S., J.D.

JOAN RENEHAN, Lecturer on Law, B.A., J.D.

HON. ROBERTO RONQUILLO, JR., Adjunct Professor, B.A., J.D.

HON. JAMES P. ROONEY, Lecturer on Law, A.B., J.D.

DAVID RUSSMAN, Lecturer on Law, B.A., J.D.

ELIZABETH SAHATJIAN, Lecturer on Law, B.A., M.A. J.D.

FRANK J. SCHARAFFA, Adjunct Professor, A.B., LL.B., LL.M.

THOMAS SHACK III, Lecturer on Law, B.A., M.B.A., J.D.

HON. CHARLES T. SPURLOCK, Lecturer on Law, B.S., J.D.

LAWRENCE T. STANLEY, Lecturer on Law, B.A., J.D.

VINCENT M. TENTINDO, Adjunct Professor, A.B., J.D.

GARY OWEN TODD, Lecturer on Law, B.A., J.D.

HON. RICHARD E. WELCH III, Adjunct Professor, B.A., J.D.

DONNA WHITE, Lecturer on Law, A.B., J.D., LL.M.

TIMOTHY L. WILLIAMSON, Lecturer on Law, B.A., J.D.

BETH A. WOLFSON, Lecturer on Law, B.A., J.D.

LEGAL RESEARCH AND WRITING FACULTY

DAVID N. BRODSKY, Instructor of Legal Writing, A.B., J.D., LL.M.

ELAINE M. BUCKLEY, Adjunct Professor of Legal Writing, B.A., J.D.

BETH PIRRO COOK, Instructor of Legal Writing, B.A., J.D.

CURTIS B. DOOLING II, Instructor of Legal Writing, B.A., J.D.

LANE N. GOLDBERG, Instructor of Legal Writing, B.S., J.D.

GINA GOMBAR, Instructor of Legal Writing, B.A., J.D.

DOUGLAS R. HYNE, Instructor of Legal Writing, B.A., J.D.

LISA JOHNSON, Adjunct Professor of Legal Writing, B.A., J.D.

C. VERED JONA, Instructor of Legal Writing, B.A., J.D.

MICHELLE R. KING, Adjunct Professor of Legal Writing, B.A., M.P.H., J.D.

LUKE H. LEGERE, Instructor of Legal Writing, B.A., J.D.

CATHERINE LIZOTTE, Instructor of Legal Writing, B.S., J.D.

PAULA F. MANGUM, Adjunct Professor of Legal Writing, B.A., J.D.

NANCY L. MCPHEETERS, Adjunct Professor of Legal Writing, B.S., J.D.

NOREEN A. MUPRHY, Adjunct Professor of Legal Writing, B.A., J.D.

STEPHANIE M. SIMMONS, Instructor of Legal Writing, B.A., J.D.

JOSEPH F. STANTON, Adjunct Professor of Legal Writing, B.A., J.D.

AMY STUTIUS, Instructor of Legal Writing, B.A., J.D.

MARK D. SZAL, Instructor of Legal Writing, B.A., J.D.

SIDRA VITALE, Instructor of Legal Writing, B.S., J.D.

Why Feminist Legal Theory Still Needs Mary Joe Frug: Thoughts on Conflicts in Feminism

MARY JOE FRUG MEMORIAL SYMPOSIUM EXTENSION

ELIZABETH M. SCHNEIDER*

51 NEW ENG. L. REV. 1 (2017)

___________________

Mary Joe Frug was murdered in Cambridge, Massachusetts in 1991, more than twenty-five years ago. Some of us who were close to Mary Joe, or whose lives and/or work have been influenced by Mary Joe, were invited to contribute the New England Law Review’s Memorial Symposium on the twenty-fifth anniversary of her tragic death. The first issue of this Symposium has already been published.¹ Mary Joe was a dear friend of mine, and I have written several previous articles, both on my own and with others, that have explored her contributions to feminist legal theory and practice in a number of different ways.² The last of these efforts was on the twelfth anniversary of her death.³

Today, twenty-five years after her death, I see even more of a need for the integration of Mary Joe’s perspectives into ongoing work on feminist legal theory and practice. We are in the midst of a very fragmented time, where there seems to be little appreciation of, and sensitivity to, the history of feminist legal theory and practice, and there has been considerable scholarly and activist dispute. Recent attention to the scourge of sexual assault on campuses has led to spirited debates about the limits of Title IX remedies for educational institutions and whether criminal prosecution should ever be used in these contexts.⁴ Feminists who accomplished major law reforms on domestic violence and international human rights are called governance feminists by some as a term of derision.⁵ There is controversy about slut shaming, trafficking, and what has been called carceral feminism.⁶ Hillary Clinton’s lost race to be the first woman President of the United States has raised new questions about the meaning of feminism, especially in the face of Donald Trump’s explicit and extreme misogyny, and sexist and racist pandering.

In this brief essay, I want to pick up on themes touched on by Martha Minow and Laura Rosenbury in their contributions to the first symposium volume.⁷ Like Martha Minow, in many situations, I am continually re-thinking what Mary Joe Frug (would) do and what she would think.⁸ One of the areas in which Mary Joe would have a lot to say is how to think about conflicts in feminism. She was a person who had the intellectual inclination, the emotional capacity, and the desire for engagement with people to consider a wide range of perspectives. She also had the rare ability to do this in a non-judgmental way. I hope this essay will assist feminist legal scholars to think about how to approach tensions and disagreements concerning feminist legal perspectives differently.

I. Dimensions of Mary Joe Frug’s Feminism

Mary Joe called herself a post-modernist but her approach had many different dimensions. She was not simple and reflexive. Both Minow and Rosenbury highlight the flexibility of her thinking and her constant questioning and re-questioning of her own views. Martha Minow identifies several aspects of Mary Joe’s thinking: she introduced, elaborated, or demonstrated a range of strategies and tactics in every situation, and saw the danger of turning any form of critical analysis into a formula or mechanical application . . . .⁹ There was no freezing of one single approach; no rigidity. Laura Rosenbury emphasizes the complex dimensions of Mary Joe’s attitude toward law: she saw law as not simply a tool of repression or liberation. Law could also play a constructive force, and law reform strategies were important to her in concrete settings.

Mary Joe focused on specifics, such as: a particular doctrinal issue, the contested interpretation of a particular legal strategy. Contingency and context were both central to her approach to law.¹⁰ An article discussing Mary Joe’s work that Martha Minow, Judith Greenberg, and I wrote was titled Contradiction and Revision to call attention to these dimensions of Mary Joe’s thinking.¹¹

II. Current Disagreements Among Feminists

There is a long history to conflicts in feminism. The first wave of the feminist movement in the nineteenth century was filled with strife.¹² A more recent example that was particularly important—and has been widely chronicled—was the so-called equal treatment or special treatment struggle over pregnancy discrimination in the 1980s with the California Fed. S. & L. v. Guerra case in the United States Supreme Court.¹³ There are many other examples of these conflicts. But, increasingly, feminist legal views tend toward the extreme, and are either-or, black or white. Some gray, but perhaps not enough.

There are several recent areas that deserve mention. Throughout the range of issues in recent feminist legal theory, one immediately stands out: claims of too much criminalization and victimization in feminism. Carceral feminism is a term used by critics to argue that feminist legal theory has an emphasis on criminal sanctions at the expense of other approaches and/or remedies. The debates concerning sexual assault on campus, Title IX, and criminal sanctions are one example of alleged carceral feminism. Everything is criticized. Any use of a criminal sanction is part of the carceral state, and Title IX implementation efforts constitute sex bureaucracy. All the reforms that have been developed are wrong and should be junked. Similarly, trafficking becomes a struggle between rescue and sexual agency. Slut-shaming is a rejection of sexual agency. All criminal sanctions are wrong.

Then we have had the reaction to the perceived prevalence of dominance feminism to take a break from feminism. Feminism is seen as inherently binary—bad and constraining. These efforts show little appreciation of many other feminist legal approaches. There were no other possibilities but to leave it and walk away? And when feminists make reforms and work with the state in any way, this is governance feminism—bad. Any concrete accomplishments of feminist reform efforts are seen as bad.

There is not much gray here. Yet there should be. We are lawyers, not just academics. Part of our task as law professors is to try to grapple with real-life problems and help students learn to do this. Our scholarship, teaching, and activism should be part of this process. We cannot just criticize without offering ways to make things better. Yes, relying on criminal sanctions exclusively is problematic. Yes, there has been a tendency in much law reform work to do that. Yes, Title IX implementation has problems. Yes, dominance feminism has serious limitations. Yes, legal reforms can be limited, and governance feminism can in some contexts point out how dimensions of feminism may suppress other points of view that are useful. But law often has to work with the state, and we can’t hide from that.

III. What Mary Joe Contributes

Variation is good; disagreement is healthy. Mary Joe looked at feminist legal dilemmas in particular contexts; nuance was key, and her views were not totalistic. She vigorously rejected gender stereotypes, including the stereotype of victim. Constant re-thinking, not rigidity, was the name of the game. Also, flexibility over time.

Mary Joe saw the complexity of legal feminism, depth of the issues, variety of perspectives and the contributions of postmodernism—but variation and context did not affect her commitment to legal reform. What does it mean to constantly question? You might be wrong. Or this view that you are expressing now might be wrong or you might want to revise it later in light of new information. Maybe you will have a different view later. We need to be open to other perspectives and to rethinking and revising our own approaches. All of us make mistakes. We cannot always anticipate how a reform or struggle in theory will play out in practice. We should have a historical perspective, a long view of feminist legal struggle, and we should be learning from history. Many aspects of the dilemmas we are seeing now may have happened in some form before.

Mary Joe was post-modern in her intellectual method and process of analysis, but she was open to legal reforms in result. And she knew that legal reforms were never perfect. She embraced and recognized contradiction and was always open to revision.

I think Mary Joe would have liked the idea of uncomfortable conversations, a format that Martha Fineman developed many years ago for some of her Feminism and Legal Theory Conferences, and that still continues today.¹⁴ It is an effort to bring people together who might disagree and feel uncomfortable talking with each other to explore their differences. It is important to be able to talk, process ideas and strategies, and debate them together. There is a need to develop new and innovative approaches.

We need feminist legal thinking that is both deep and nimble, but also generous. We need to acknowledge other work and other perspectives and the history that has come before. We need to be able to see how contemporary struggles can contain the seeds of old ones and replicate the past. Not blaming and pointing the finger at others, but introspective, thoughtful, and collaborative. This does not mean that we all have to, or will, agree, but that we can point out different perspectives with respect and appreciation. Here is why I think the approach that I am offering is better, although I can appreciate the value of a different view. The development of feminist legal approaches that both recognize history but move us forward in new ways is so important because crises and problems will be emerging every day. The daily barrage of shocking issues concerning feminism that we have been experiencing with such intensity in this election cycle shows that so clearly. And now, in January 2017, we need all our allies to do the moving forward together.

Footnotes

* Rose L. Hoffer Professor of Law, Brooklyn Law School. Thanks to Martha Minow, Judith Greenberg, Linda Gordon, and Cynthia Godsoe for comments on an earlier version and to Philippa Ratzki ’17 for research assistance. I am grateful to the Brooklyn Law School Faculty Summer Research Program for support.

1 Symposium, Mary Joe Frug Memorial Symposium, 50 NEW ENG. L. REV. 269–318 (2016).

2 Elizabeth M. Schneider, Violence Against Women and Legal Education: An Essay for Mary Joe Frug, 36 NEW. ENG. L. REV. 843 (1991–92); Judi Greenberg, Martha Minow & Elizabeth M. Schneider, Contradiction and Revision: Progressive Feminist Legal Scholars Respond to Mary Joe Frug, 15 HARV. WOMEN’S L.J. 65 (1992) [hereinafter Greenberg, Minow & Schneider, Contradiction and Revision]; Regina Austin & Elizabeth M. Schneider, Mary Joe Frug’s Postmodern Feminist Legal Manifesto Ten Years Later: Reflections on the State of Feminism Today, 36 NEW ENG. L. REV. 1 (2001); Regina Austin & Elizabeth M. Schneider, Musings on the Issues of the Day, Inspired by the Memory of Mary Joe Frug, 16 COLUM. J. GENDER & L. 660 (2003) [hereinafter Austin & Schneider, Musings on the Issues of the Day].

3 Austin & Schneider, Musings on the Issues of the Day, supra note 2.

4 See Michelle J. Anderson, Campus Sexual Assault Adjudication and Resistance to Reform, 125 YALE L.J. 1940 (2016); Symposium, Sexual Assault on Campus, 64 KAN. L. REV. 861 (2016); Jacob Gersen & Jeannie Suk, The Sex Bureaucracy, 104 CAL. L. REV. 881 (2016); Susan Frelich Appleton & Susan Ekberg Stiritz, The Joy of Sex Bureaucracy, 7 CAL. L. REV. ONLINE 49 (2016); Nancy Gertner, Complicated Process, 125 YALE L.J. F. 442 (2016).

5 See Janet Halley et al., From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 HARV. J. L. & GENDER 335, 336 (2006).

6 See Elizabeth Bernstein, Militarized Humanitarianism Meets Carceral Feminism: The Politics of Sex, Rights and Freedom in Antitrafficking Campaigns, 36 SIGNS J. WOMEN IN CULTURE & SOC’Y 45, 47 (2010); Deborah Tuerkheimer, Slutwalking in the Shadow of the Law, 98 MINN. L. REV. 1453, 1462 (2014).

7 See generally Martha Minow, Continually Re-Thinking: What Would Mary Joe Frug Do? (A Preface to Symposium Discussions), 50 NEW ENG. L. REV. 269 (2016); Laura A. Rosenbury, Channeling Mary Joe Frug, 50 NEW ENG. L. REV. 305 (2016).

8 See generally Minow, supra note 7.

9 Id. at 271.

10 See Laura A. Rosenbury, Postmodern Feminist Legal Theory: A Contingent, Contextual Account, in FEMINIST LEGAL THEORY IN THE UNITED STATES AND ASIA: A DIALOGUE (Cynthia Grant Bowman, ed., 2016 Forthcoming).

11 Greenberg, Minow & Schneider, Contradiction and Revision, supra note 2.

12 See KATHARINE T. BARTLETT, DEBORAH L. RHODE & JOANNA L. GROSSMAN, GENDER AND LAW: THEORY, DOCTRINE, COMMENTARY 11–21 (2013).

13 See Stephanie M. Wildman, Pregnant and Working; The Story of California Federal Savings & Loan Association v. Guerra, in WOMEN AND THE LAW STORIES 253 (Elizabeth M. Schneider & Stephanie M. Wildman eds. 2011); California Fed. S. & L. v. Guerra, 479 U.S. 272 (1987).

14 Holly Cline, A Global Uncomfortable Conversation: Professor Martha A. Fineman Develops a Paradigm, EMORY LAWYER 28–30 (Summer 2012).

SYMPOSIUM

A Behavioral Approach to Lawyer Mistake and Apology

CATHERINE GAGE O’GRADY*

51 NEW ENG. L. REV. 7 (2017)

___________________

I should have known better–I don’t like to make any mistakes at all; but in this case, my client’s freedom was on the line. I felt terrible.

*New lawyer, describing a mistake made in second year of practice

INTRODUCTION

We all make mistakes—it is only human. Lawyers are only human; thus, it follows that lawyers—even smart, well-educated, conscientious lawyers—will occasionally make mistakes in their professional work. These are universally accepted axioms—in theory. In specific application, however, when we face circumstances that should cause us to ask whether we have made a mistake—that is an entirely different story. This Article explores the behavioral principles grounded in social psychology that prevent us from recognizing that we have made a mistake and applies those principles to lawyering and the practice of law. A behavioral analysis suggests that the toughest acknowledgement of mistake is the one we make to ourselves—we fail even to recognize that we made a mistake. Once a mistake is fully recognized, acknowledgement of it to others becomes a critical consideration.¹ For the lawyer, especially the new lawyer, mistake acknowledgment often means a difficult discussion with senior lawyers and even clients. After considering the behavioral underpinnings to mistake recognition, this Article explores mistake acknowledgement and considers a role for apology to clients for lawyering mistakes. Although lawyers increasingly advise their clients to apologize to opposing parties in a dispute, often to facilitate settlement, they generally do not consider the role of apology as it applies to them and to their lawyering work. This Article opens up that topic, primarily by exploring the increasing use of apology in the medical field and suggesting that a carefully limited role for apology may exist in the professional practice of law to promote a work environment that values transparency and eases the psychological burdens that accompany mistake recognition and acknowledgement.

In general, a behavioral analysis of lawyering and of legal ethical decision-making is receiving some well-deserved, if belated, scholarly consideration.² Behavioral legal ethics, relying on empirical research from behavioral science, posits that psychological factors, which often occur outside the conscious awareness of a legal decision maker,³ may produce decision-making errors that may ultimately result in unethical conduct.⁴ Because those influences—cognitive biases, heuristics, and situational factors—often operate unconsciously, a disconnect or gap frequently exists between how people think they would behave if given a chance to predict their responses to a given set of circumstances, and how they actually do behave when confronted with that situation.⁵ When combined with an analysis of judgment and decision-making, a behavioral legal ethics analysis shines some light on the pivotal points in the lawyer’s ethical decision-making process that may be particularly vulnerable to the impact of unconscious cognitive bias or the inappropriate use of heuristics.⁶

But not every decision-making