Wednesday, July 20, 2016

Obligations of law faculty to disclose research supported by those with a stake in the findings?

Prof. Jeff Sovern (St. John's) writes:

I have been wondering about the extent of law professors’ ethical obligations to disclose when their research has been supported by a grant from a group with a stake in the findings, and because you are the de facto moderator of the law professor village square, I wondered if you would consider posting the item below to your blog and seeking comment. I apologize for its length.

 

A grant that results in the publication of a law review article or similar publication should be acknowledged in the article, but what about later work in the same general area that espouses a policy position consistent with what the grantor would have wanted? That issue is germane to a 2013 article in The Nation, The Scholars Who Shill for Wall Street which criticized academics (notably, George Mason’s Todd Zywicki) for failing to disclose in papers, congressional testimony, speeches, op-eds, etc. compensated work for the financial industry.  The AALS has been rather vague on this subject, but here’s what it said in its Statement of Good Practices by Law Professors in the Discharge of Their Ethical and Professional Responsibilities: “Sponsored or remunerated research should always be acknowledged with full disclosure of the interests of the parties. If views expressed in an article were also espoused in the course of representation of a client or in consulting, this should be acknowledged.” It’s not at all clear to me that the conduct described in The Nation article violated that policy.

 

My own concern is more personal.  My law school (St. John’s) accepted a grant from an organization with ties to a particular industry.  My co-authors and I conducted a survey financed by this grant (we had to purchase a software license, compensate those who completed the survey, and so on) and published a law review article about our findings.  We had complete control over the survey and what we wrote about our findings and the grantor did not comment on them; in all respects, its behavior was exemplary.  We acknowledged the funder in the article.  Later, I wrote some op-eds about our work, and acknowledged the grantor again.  Still later, I wrote op-eds about the broader subject, giving no more than a sentence to our research, or not mentioning it at all. Do I have an obligation in the later op-eds to mention the grantor?  Would readers want to know that my law school accepted money from the grantor which supported my research?  If your answer is no, do you see anything wrong with the conduct described in The Nation article?  If you answer is yes, would it be different if the funder were not associated with a particular industry or point of view?

 

Perhaps the AALS would consider updating and elaborating on its statement.  It might be a good project for professors specializing in professional responsibility. When the AALS re-evaluates a school for membership every seven years, does it inquire into compliance with this aspect of its Statement of Good Practices?  Should it? 

Good questions, I've opened it for comments.  (Submit your comment only once, comments are moderated, and may take awhile to appear.)

http://leiterlawschool.typepad.com/leiter/2016/07/obligations-of-law-faculty-to-disclose-research-supported-by-those-with-a-stake-in-the-findings.html

Legal Profession, Of Academic Interest, Professional Advice | Permalink

Comments

Robin Feldman, Mark Lemley, Arti Rai, and I recently took up the same issue. This is of particular concern in IP because there is a significant amount of high-tech money flowing to IP scholars and university centers, and many IP scholars practice or consult on the side. We drafted an open letter that eventually garnered 50+ signatures, and we published it in the Harvard Journal of Law and Technology. We think it goes substantially beyond what the AALS currently requires. It’s available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2714416, in case anyone is interested.

Posted by: Jonathan Masur | Jul 22, 2016 7:05:51 AM

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