Legal Process Presented In Ryan Report Requires Reconsideration

Since their release earlier this year, the recommendations of the congressionally chartered Commission on Research Integrity (CRI) have generated ongoing controversy (B. Goodman, The Scientist, Jan. 22, 1996, page 1; B. Goodman, The Scientist, July 22, 1996, page 3). It should surprise no one that the report containing those recommendations has been the subject of much debate. The commission, chaired by Kenneth Ryan, was required by its charter to perform a difficult balancing act: juggling the interests of the scientific community, the public, and various governmental agencies. Amid such acrobatics, any of these constituencies might have found their particular interest was fumbled or even dropped, and none of them could possibly receive the center-stage attention that they expected. What might instead surprise members of the scientific community is the degree to which the commission's report shifts the balance between legal and scientific interests in misconduct inquiries. To appreciate this dramatic change of stance, one need only look carefully at the new articulation of scientific misconduct contained in the report. The commission recommends to Congress the adoption of a new definition of misconduct. In place of the familiar "fabrication, falsification, and plagiarism" previously used by federal agencies, the commission proposes the terms "misappropriation, interference, and misrepresentation." This may seem a fairly cosmetic change. Yet the new definition carries with it a shock of familiarity to anyone with legal training. Whereas the terms "fabrication," "falsification," and "plagiarism" have no defined legal meaning and carry no lawyerly connotations, the terms "misappropriation," "interference," and "misrepresentation" are old friends to any attorney. Lawyers will recognize these terms from the laws of intellectual property, unfair competition, and torts, respectively. Such stock legal phrases unquestionably will carry connotational baggage with them into any new usage. And given that more and more cases of scientific misconduct are being resolved in court, one might expect that the former legal usage of these terms will influence the way that judges interpret their new usage. The hidden significance of the commission's proposed definition is by no means an isolated occurrence in the report. The commission formulates its new definition in terms taken directly from criminal statutes, including in the explanation what lawyers call a "mens rea," or intent requirement. Indeed, the commission's report is chock-full of terms loaded with legal meaning: phrases such as "reckless disregard," "good-faith," "reasonable belief," and "breach of duty" all have a long and rich legal history, and carry with them an enormous load of lawyerly implication. The use of such legalistic terms in the commission's report signals a distinct shift in the approach to issues of scientific misconduct. The report in effect recognizes a move away from resolution of misconduct by the scientific community and toward resolution of misconduct by the legal community. This transition was perhaps inevitable: When public money is used to finance scientific research, there must be accountability to the public, and such accountability is readily had through legal institutions such as courts and administrative agencies. When the enormous coercive power of such institutions is implemented, we generally require procedural protection against misuse of that power. Scientists facing the power of the state will quite naturally seek whatever process they are entitled to simply to equalize the contest. Thus, the injection of public money into research naturally tends to lead to formalization and legalization of misconduct inquiries. Nonetheless, such formalization is far from the traditions and purposes of the scientific research community. Legal scholar Steven Goldberg, a professor of law at Georgetown University Law Center, has observed that law is concerned with process, whereas science is concerned with progress. Legal standards are designed to enable people to resolve disputes peaceably and not necessarily to determine the empirical basis of any particular dispute. Thus, law may well sacrifice empirical veracity to accommodate differing viewpoints. Science, by contrast, strives to accumulate knowledge that has been proved and certified by intellectual rigor, public dissemination, replication, and peer review. To that end, the major focus of misconduct inquiry by the scientific community will be to determine the empirical demonstrability of a researcher's claims, to purge the record of fabricated or incorrect data, and to discourage future conduct that would tend to corrupt the acquisition of certified knowledge. The major focus of a misconduct inquiry by the legal community will instead be to develop a process that balances the rights of the accused and of the public-determining the empirical truth or falsity of the disputed data will be a secondary and distinctly subordinate consideration. This shift from scientific progress to legal process should be a matter of profound concern to scientists. Yet even if scientific misconduct has become irrevocably the provenance of lawyers, scientists should be even more disturbed over the assumptions about legal process made in the commission's report. These assumptions are typified, for example, by the report's statement that "It is well established that justice is not usually served by having a single individual or group function as investigator, prosecutor, judge, and jury." This statement has been repeated publicly by Commissioner Ryan on a number of occasions. Yet however well-established this principle may seem to Ryan, it is quite alien to many legal systems around the world. Even within the United States, its establishment is questionable. Such statements from the commission reflect an implicit adoption of the court system familiar to American viewers from television shows such as "L.A. Law" or "Perry Mason." In the U.S., lawsuits are initiated by a plaintiff, who in some instances may be a prosecutor or similar official representing the state. Evidence is developed by the parties to the suit, and the course of the proceeding is largely controlled by those parties or their legal representatives. The judge is expected to stand by as a sort of referee, ruling on motions that are almost always initiated by the parties. The ultimate resolution of the case is given over to a jury, although in some cases the parties may waive the right to a jury and ask the judge to rule on the dispute. Such a division of roles is required in the Anglo-American court system because of the system's adversarial nature. The system is termed "adversarial" because the trial is conceptualized as a sort of contest of viewpoints in which truth will emerge the victor. Each party, or the lawyers that represent them, is expected to present his or her own viewpoint without concern for the views of the other party, or for the views of non-parties. The plaintiff and defendant are fully justified, and in fact encouraged, to go to extremes in presenting their views. Indeed, the lawyers representing the parties have a professional duty to "zealously advocate" their clients' cause. The premise of this system is that from the presentation of an extreme thesis and antithesis, some synthesis will emerge: The jury or judge is expected to sort through the admittedly biased presentations and reach some reasonable accommodation. Although the separation of advocate and decision-maker may be "established" for adversarial legal systems, it is by no means established in all legal systems. The U.S. and other former British colonies have inherited their adversarial common law systems from England. Civil law systems originating from the European continent have quite a different tradition, in which, in many instances, a magistrate may initiate an investigation, develop the evidence, and order a resolution. Even within the U.S., the same is true of many governmental commissions and administrators, and the Supreme Court has held that there is no constitutional violation if the head of an administrative agency wears both quasi-prosecutorial and quasi-judicial hats. Additionally, the American legal community has begun to recognize that the traditional adversarial model of justice may leave much to be desired. In order to decrease the expense, frequency, and frustration of litigation, many legal experts have championed the use of "alternative dispute resolution," or ADR, proceedings. In general, these alternative procedures are less formal and procedurally rigid than traditional court proceedings, and may be more satisfying to the parties. Some of them, such as arbitration, are adversarial in nature, whereas others, such as mediation, avoid the adversarial model. Legal experts have also begun to suggest that the U.S. may have much to learn from the civil law tradition, in which judges are proactive rather than reactive, and primary control of the proceedings is removed from the parties and placed in the hands of the judge. It seems ironic that at a time when the legal profession has begun to turn away from formalistic and adversarial models, those very models are being enthusiastically embraced by a commission making recommendations on resolving scientific misconduct. Except for a brief mention of ADR in connection with whistleblower disputes, the possibility of nonadversarial resolution of misconduct questions goes unexplored in the commission's report. However, alternative dispute resolution methods may be far more compatible with scientific inquiry and far more sensitive to the needs of the scientific community than the adversarial model that the report assumes. Such methods deserve more careful consideration if the resolution of misconduct is not to become wholly a matter of legal process rather than one of scientific progress. Dan L. Burk is an assistant professor of law at Seton Hall University.

Legal Process Presented In Ryan Report Requires Reconsideration

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