Why Don’t You Need IRB Approval to Talk About People in Cases?
posted by Dave Hoffman
Legal archaeology is a term sometimes used to refer to scholarship that brings a rich context to famous cases. If you were a legal researcher seeking to enrich a modern classic – e.g., Pepsico [contracts], Lawrence [con law], Liebeck [torts], Twombly [civ pro] – you might proceed by interviewing the parties and their attorneys, examining prior and related cases, and boning up on the briefs and exhibits. It seems pretty clear to me that before undertaking such research, a prudent professor would check in with their IRB. The interviewing of the parties and their attorneys in particular doesn’t appear to be clearly covered by any exemption, and I imagine that at least expedited review would be indicated.
But how about simply writing about living parties – or judges – in modern cases? It would seem inconceivable to go to the IRB before writing about, say, Yaser Hamdi. Well, you never know how your local IRB will deal with novelty. So let’s go back to the basics. Is this research under Section 46.102? Arguably: it is a “systemic investigation . . . designed to contribute to generalizable knowledge.” Is it research regarding human subjects? Well, under 46.102(f), human subjects are people you collect data from through actual contact or those who you collect data that is otherwise private. Private information “includes information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, and information which has been provided for specific purposes by an individual and which the individual can reasonably expect will not be made public (for example, a medical record).” Are their facts about behavior disclosed in judicial opinions which fit this definition? I can think of many: disclosure of facts from police reports, medical records, taxes, etc. Indeed, most opinions disclose facts about individuals that they’d never, ever, want told to the public, and were forced to disclose only through contentious discovery. Quite often, the discovery contained stipulations of confidentiality that bind the parties, but not the court.
Nevertheless, it’s clear that writing about such personal facts in released opinions is in fact exempt from IRB review, since a judicial opinion is, under 46.101(b)(4), a public record. So you might think that this entire exercise is academic. And for some IRBs, it would be. But most IRBs would take the position – if asked – that researchers must submit an application to them, so that the board can evaluate the claim for exemption. This is a slam dunk case for exemption, but that doesn’t mean that the professor gets to decide for herself that no application is necessary. Of course, I’ve never heard of a law professor submitting to an IRB before writing an article about a recent case of interest, even when discussing the most personal facts relating to the parties or the judge. In fact, some articles about particular judges have created political scandals of some note. Unless I’m mistaken about any of the previous analysis, I think that means that most law professors, some of the time, are not in technical compliance with a set of (very silly and possibly unconstitutional as applied) regulations. Ironically, it is probably constitutional law professors, who write about recent cases involving individual parties most often, who are the prime violators. If your law school has not reached a general understanding with your local IRB about how to proceed, it should.
Thoughts?
September 1, 2010 at 3:04 pm
Posted in: Administrative Law, Bioethics, Constitutional Law, Empirical Analysis of Law, Law School (Scholarship)
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Responses (6)
Zachary Schrag - September 1, 2010 at 8:47 pm
These are great questions. Unfortunately, there is no simple answer, because university policies vary so widely. UCLA’s Guidance and Procedures Number: 42, “Research Involving Public Use Data Files,” states that researchers must apply for permission before quoting blogs or letters to the editor. By contrast, Princeton’s “Guidance for Submission to the IRB” grants researchers broad leeway to conduct some types of interview research without contacting the IRB. Most universities lack such explicit policy statements, leaving researchers guessing about when they have crossed an invisible line into noncompliance.
Aaron Burstein - September 1, 2010 at 11:04 pm
Very interesting post. I’m not convinced that the Common Rule would require review under the circumstances you sketched at the beginning of your post. If the object of study is some aspect of the legal system, or a disputed legal issue, then gathering information from human beings to establish context or get background information might not constitute human subjects research. (Also note that 45 CFR 46.102 limits the definition of human subjects to /living/ individuals, so the situation for constitutional law scholars might not be so dire.)
If the research you describe (or other legal scholarship) does amount to HSR, it’s still HSR even if it’s exempt, and only the IRB can make that determination. In my direct and vicarious experience, IRBs vary widely in how aggressively they apply the all-important threshold definition of a human subject. IRB faculty and staff tend to be very busy, so it’s not necessarily the case that IRBs will err on the side of calling something HSR when it’s a close call (especially when the risk of harm to the putative subjects is remote).
On the other hand, with some planning, as well as borrowing from colleagues who have gone through the process, getting a protocol approved usually isn’t a big deal. That’s not to say the first amendment concerns you and others (e.g., Philip Hamburger, 2004 Sup. Ct. Rev. 271; and Dale Carpenter, 101 Nw. U. L. Rev. 687) aren’t real, but the time scales of IRB review are manageable in the context of legal scholarship. In many other disciplines, conference deadlines and such can create much more severe pressures.
Bruce Boyden - September 2, 2010 at 12:16 am
Surely the reasonable expectation of privacy dissipates if you file a record with the court, not under seal, in a lawsuit.
dave hoffman - September 2, 2010 at 8:00 am
Bruce,
I agree that if you file a document with a court, then you probably don’t have a REP regarding public display. But let’s say that you disclose a document to the other party because of a discovery request and they file it with the court, whether or not under seal. The court then decides to highlight that fact an in opinion which the researcher in turn focuses on. Or, say that you disclose a piece of information to the police in a report (whether as a witness, a victim, or the perp); that report makes its way into evidence through no action of your own. If the researcher were to look at the report directly and seek to summarize its contents, there is an IRB issue. Why does the simple fact that the report happened to be caught up in a public lawsuit change the equation w/r/t the original data collection?
Bruce Boyden - September 2, 2010 at 11:56 am
I don’t see how the mechanism by which information makes its way into a public record should matter with respect to the question of what a person’s reasonable expectations of privacy are (I take it the word “reasonable” here means something more than what the person hopes or subjectively expects will remain private). If there was no protective order in place on the other party, and you disclose relevant information to them, I don’t see how you could have a reasonable expectation that it won’t get used (otherwise why did your lawyers produce it?). Same with the police report that makes its way into evidence consistent with police procedures — that’s what the police do, they gather evidence for later possible use in a open court proceeding. But then, I’m a skeptic concerning IRB authority to regulate historical research in general, so perhaps I’m the wrong person to ask.
Stuart Buck - September 9, 2010 at 9:41 am
Is your research “conducted” or “supported” by the federal government in the first place? If not, why would IRB requirements apply at all?
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