Why Don’t You Need IRB Approval to Talk About People in Cases?

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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6 Responses

  1. 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.

  2. 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.

  3. Bruce Boyden says:

    Surely the reasonable expectation of privacy dissipates if you file a record with the court, not under seal, in a lawsuit.

  4. dave hoffman says:

    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?

  5. Bruce Boyden says:

    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.

  6. Stuart Buck says:

    Is your research “conducted” or “supported” by the federal government in the first place? If not, why would IRB requirements apply at all?