Volokh’s Law Review Experiment
posted by Dan Filler
Eugene Volokh reports that, this spring, he participated as a faux-student in the UCLA Law Review writing competition. Happily, he succeeded in writing on (though he assures us that no deserving student was denied a slot as a result.) But when he tells us that he learned a lot that he’ll use in the third edition of his book, and in his blog, I immediately wondered whether a) he needed and b) he obtained approval for this “research” from UCLA’s Institutional Review Board (IRB) for human research. The much debated IRB rules typically demand IRB approval before you do systematic investigations designed to contribute to generalizable knowledge, using human subjects. Under this gaping definition, a massive portion of social science work is subject to IRB review – and it looks to me like Volokh’s project is as well. I imagine that UCLA’s IRB would have exempted it from review, or given an expedited OK, if he had submitted the proposal. But a researcher is usually required to submit a proposal to the IRB so they can make that call.
I doubt that IRB’s were created to manage this sort of low risk research, but I know that administrators of big universities – like Alabama – hope that we law profs don’t personally exempt ourselves from these provisions. Agree with their existence or not, but universities can lose a lot of federal money when they get caught cheating on IRB’s. And I suspect it won’t be the law schools that feel that particular pain.
May 10, 2006 at 5:27 pm
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Responses (7)
John Armstrong - May 10, 2006 at 6:25 pm
That’s an interesting question, and it raises (to me at least) another: to what extent does a typical law school feel the pain of federal funding repercussions?
As an example, when the famous Solomon Amendment case came up, how much did Yale Law stand to lose, both in numbers and in real-world terms? Compare numbers with the biology department’s multi-billion dollar grants. Compare real-world terms with my own department, where revoking the grant which provided much of the grad student stipends at the time would have left graduate students in a mad scrable for funding to avoid being left homeless.
Joe Miller - May 10, 2006 at 7:33 pm
John Armstrong’s Solomon Amendment comparison is interesting, but a little off. The Solomon Amendment is a forceful mechanism precisely because it links law school conduct (in the recruiting context) to funding for the university as a whole. As a result, a given university can’t isolate the law school’s decisions about whether to allow military recruiters from the broader availability of federal research dollars.
Michael Risch - May 11, 2006 at 3:10 am
I haven’t done any IRB studies, but it doesn’t seem clear at all that IRB is implicated.
45 CFR 46.101(b) says:
(b) Unless otherwise required by department or agency heads, research activities in which the only involvement of human subjects will be in one or more of the following categories are exempt from this policy:
(1) Research conducted in established or commonly accepted educational settings, involving normal educational practices, such as (i) research on regular and special education instructional strategies, or (ii) research on the effectiveness of or the comparison among instructional techniques, curricula, or classroom management methods.
Doesn’t this “experiment” qualify as something that was conducted in an established educational setting (law school/law review) in order to research the effectiveness of instructional techniques and curricula (that is, instruction on how to “write on”)? Seems like a clear exception to me.
Jeremy A. Blumenthal - May 11, 2006 at 10:33 am
I do think that much of the empirical legal research law that professors conduct is generally appropriate for IRB review – indeed, more than is generally assumed. This particular endeavor, though, doesn’t seem to fit the requirements. Going by what I recall of my university’s rules, IRB approval is required for research on human subjects. This law review effort does seem to be “research” – an effort to collect generalizable information for publication by a university-affiliated researcher. But query whether it is really research on “human subjects” – it seems to neither collect identifiable private information nor to be research about the individuals with whom Prof. Volokh interacted. So I vote “no.”
Jeremy A. Blumenthal - May 11, 2006 at 10:35 am
I do think that much of the empirical legal research law that professors conduct is generally appropriate for IRB review – indeed, more than is generally assumed. This particular endeavor, though, doesn’t seem to fit the requirements. Going by what I recall of my university’s rules, IRB approval is required for research on human subjects. This law review effort does seem to be “research” – an effort to collect generalizable information for publication by a university-affiliated researcher. But query whether it is really research on “human subjects” – it seems to neither collect identifiable private information nor to be research about the individuals with whom Prof. Volokh interacted. So I vote “no.”
Dan Filler - May 11, 2006 at 10:43 am
Michael, I think the exception you suggest would apply to asking students in your own class how they felt about a particular pedagogy. But I’m not sure it applies when you go undercover into another prof’s class, acting like a student, asking everyone what they think of that prof’s pedagogy. And in any case, I’m not sure this is about pedagogy or about learning how a competitive process, that produces significant non-educational benefits to students, works.
Jeremy, you’ve identified a central question, I guess, which is whether Volokh is gathering information about how the law review works, institutionally, or how student editors behave. There is no question, though, that this research does have the potential (albeit relatively limited potential) to put particular students at risk. Imgaine that the law review has four students who are reading these competitions, and that their identity is either public or discoverable. Imagine that Eugene is unsucessful in his effort to get on the law review, but that he is convinced that his paper was good enough. (Maybe he runs it by a colleague, who agress.) Now he is in a position to do harm to those four students – giving weaker recs, lower grades, or who knows what else. Nobody is suggesting that he would, in fact, do so. But the same can be said about the risk attached to much social science research. However, wouldn’t it be most fair to ask those four students if they’d like to be exposed to this risk?
Jeremy A. Blumenthal - May 11, 2006 at 5:10 pm
Two quick points – (1) Apologies for this morning’s duplicate posting and (2) I do think the activity qualifies as “research;” I think my issue is whether it’s research on “human subjects” (and no, that’s not a comment on the students involved!).
More broadly, Dan, I’m not sure I agree with your example, though you implicitly bring up another point that gets me thinking more. I question the particular example as showing the need for IRB review. Those facts show the danger of a investigator’s deliberate misuse of information obtained – which is of course always present. IRB review itself wouldn’t prevent that, though it might prevent that IRB from subsequent approval of proposed research. The possibility of improper behavior by the investigator doesn’t affect whether these students are “human subjects.” (Moreover, participating in the writeon isn’t obtaining “private information” – presumably, the students’ identities are public or discoverable in any event.) [par break]
On the other hand, though, the point that the identities might be (and likely are) discoverable is relevant. If the goal were to demonstrate vagaries or inability on the part of the student reviewers, then the information collected about the experience might have the potential for embarrassment, etc., and the case for needing IRB review is stronger. If the goal is to document the process of this law review selection, I think it’s weaker, because it’s not involving “human subjects”. Back to what you’ve generously described as “the central question.” [par break]
And even if the purpose is the latter (describing the law review process), there is the potential issue of characterizing the student reviewers as “third parties,” whom IRB’s also often take into account. That is, how do we treat information obtained that arises incidentally to an investigator’s activities? Sort of a “doctrine of double effect” issue. Generally, third parties aren’t considered “research subjects,” unless (and I’m paraphrasing and simplifying) the information obtained is substantially distinct from the behavior or experience of the original subjects. [par break]
I too wondered whether it could fall under the pedagogical exception, but even if it did, that (rightly or wrongly) is a judgment for the IRB to make, i.e., that the proposed “research” falls under an exempt category. Finally, I think it would be quite a stretch, but IRB’s also make exceptions for “expert opinion” – communications with experts on information within their area of expertise is excluded from needing IRB review.
Most generally, I think this and similar issues show why we need recognition of the IRB issues and more discussion of them (such as the recent Northwestern gig).
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