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.