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Monday, December 19, 2016

Confidential Academic Informants

While prepping my new CrimPro class next semester, I was reviewing the materials on the use of informants to satisfy probable cause. It got me thinking about the academic use of informants. We all talk to folks who work directly and indirectly with the industries or agencies or whatever it is we write about, who we sometimes quote as sources of information. Some (few?) legal academics obtain IRB permission to interview and study human subjects. What I have in mind here is something a little different. I write about criminal justice, and have family members who are retired or current police officers. We occasionally talk at family gatherings about policing, and the things they say give me important information and insights relevant to the things I teach and write about (they know I write about law enforcement databases and interrogation and DNA collection, often in a manner that is critical of current practices, and they do not share my ultimate conclusions). None of those conversations, however, is "on the record", I can't drop a footnote that says "backyard conversation with my family member on Thanksgiving," and while we've never discussed this, I wouldn't betray the relationship and their trust by directly using anything they say in a blog post or a publication. 

Are there ethical guidelines or rules that guide or govern these sorts of conversations with our family, friends, former classmates and colleagues?

Posted by Kevin Lapp on December 19, 2016 at 07:43 AM | Permalink

Comments

You raise some interesting points here, some of which I have been thinking about for a while. The short answer is no - unless you plan on using these conversations as data, then there are no rules governing them. I have had numerous conversations with judges about my work and as you say cannot cite what they say in a paper. I will occasionally say something like "anecdotal evidence suggests" to reinforce something for which I have other sources, but you are correct that it is a tricky area.

However, the larger issue that you mentioned (in passing) is how few legal scholars understand human subjects review and the need to obtain approval of studies involving human subjects. As an interdisciplinary scholar trained in the social sciences and the law, I support the move toward more empirical studies of law and legal issues. However, many of these studies lack rigor, and some don't seem to abide by human subjects guidelines; I think part of this is because lawyers are not trained in methodology. For example, what methods are appropriate to answer what research questions? What is qualitative research? More basically, what is empirical research? I remember when I was a post-doc, another post-doc presented his "empirical" research which involved him analyzing cases he found on Westlaw. It was not a universe of cases on his topic of interest; nor was it a random sample of those cases. He had just selected a group of cases that were relevant to his study and couldn't understand why I and others were telling him that was not empirical work.

A more fundamental question is why IRB approval is important. While IRB approval originated in the hard sciences and medicine, where risks could be physical, it is nonetheless vital that any time research is being conducted, even if that is as simple as asking an attorney questions about their job, human subjects approval is obtained. It is important that the person conducting the study has considered the risks of the study and thought about confidentiality. Participants in research need to be protected. The risks may be minimal, but measures need to be in place to address those risks. For example, interviews about apparently neutral subjects can sometimes result in serious distress. It is important that the researcher has thought about this - both how to minimize the risk of distress and what to do if it does occur. Some research is exempt; other research is subject to expedited review; research with vulnerable populations, including people in prison, requires a higher level of review. I have been through IRBs at multiple universities, as well as at a non-profit where I worked, and while it can sometimes be frustrating and seem like you are jumping through hoops, it is an important step.

Posted by: Christine | Dec 20, 2016 9:11:08 AM

When I read the title of this post, I thought you were referring to anonymous external reviewers of tenure files. Those are law schools' real "confidential academic informants"!

Posted by: Untenured | Dec 20, 2016 4:21:02 PM

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