Interest in law-and-sociology and law-and-anthropology research is growing among among law faculty. This is certaintly true in my corner of intellectual property law; read the presentations and comments from the recent Cultural Environmentalism conference at Stanford (particularly those by Rebecca Tushnet and Julie Cohen) for examples of what ethnography might do. Interest in this approach is also growing, judging from my conversations with colleagues, in areas of law as diverse as international law and hate crimes law.
Ethnographic inquiry involves research on or involving human subjects, and that means that it runs into the problem of the university’s Institutional Review Board, or IRB, which sits in judgment of research methods that pose an undue risk of harm or exploitation. The idealized research models at the core of the typical IRB are biomedical research and psychological research. Social science research, particularly descriptive social science research, doesn’t fit the IRB paradigm very well.
The conflict between social science research methods and the goals of IRBs has been the subject of recent blogospheric commentary at Savage Minds. The American Anthropological Association even has a formal statement. I want to raise a related question.
The HHS definition of “research” that triggers IRB review of research protocols is this: “Research means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge. ” Ordinary journalism, I take it, usually falls outside of the definition. (Particular universities have their own guidelines, but any university that receives federal funding for research begins with the HHS standard.) If I, as a faculty member, interview someone and publish an article in the local newspaper that relies on that interview, my interviewing “method” isn’t subject to IRB review. (If my interview notes become part of some later research project, then my “method” is, I assume, subject to IRB review. But I’ll leave problems of retroactivity aside.)
Here’s my question: For purposes of IRB review, what is blogging? If I intend to interview people and post discussions of my interviews at this site, am I planning to engage in the kind of systematic investigation that counts as “research”? Is blogging “designed to develop or contribute to generalizable knowledge”? If I happen to interview people and post the results, but don’t formulate a plan in advance, is that “research”? Or is this, in either case, “journalism” (or something else), so that it falls outside the scope of IRB review?
UPDATE (3/29): It turns out that Dave Hoffman posted about this very topic at Prawfsblawg Concurring Opinions, in February, and I missed it.
Mike,
A little more than a month ago, David Hoffman made a great post at CoOp raising some interesting, and related, IRB questions. As I said in a comment to Hoffman’s post, “It is interesting to note, in connection with IRBs that, so far as I could tell, nothing in the schedule at the recent AALS annual meeting in DC addressed IRB questions for the law professor. Given that the topic of the annual meeting was empirical research in law, it seems a rather glaring omission.”
Anyone interested in the topic should also look at a few cool posts on IRBs Jason Czarnezki at the Empirical Legal Studies blog, here, here, and here.
You could look for an intermediary layer of journalism or some other IRB-neutral activity. e.g. If your research were a planned meta-analysis of many news stories, you’d be in the clear I suppose. So maybe one could argue that self-selected cyber respondents are in effect their own journalists, for which in the first stage you are only a cyber publisher (having set the theme of this week’s issue). I suppose though that IRB rules just need updating.
Mike,
The more I think about this problem, the more I think that my initial views were wrong. “[D]esigned to develop or contribute to generalizable knowledge”: we can’t have it both ways. Either blogging is frivolous, an outcome that I bet most law prof. bloggers would find unfortunate, or it is meaningful, in which case IRB approval may be needed under current standards. It is a serious problem. And I don’t think that the interview-hypo is where it hurts: it is when you open up your blog to comments and encourage discussion there.
Actually, a small nit: the post you kindly referred to was at Concurring Opinions.
Dave,
I’m inclined to think that blogging is a spectrum rather than an either/or, and that the spectrum applies intra-blog as well as inter-blog. The way you’ve phrased your hypo illustrates some of the problematic gradations. If I merely open comments, do I “encourage discussion”? Does it matter if the post specifically includes questions for discussion? What if I post something that I know is provocative, subjectively hoping that commenters will respond? Does it matter if I’m subjectively “targeting” certain commenters (or classes of commenters)? What if the blog dialogue is connected to off-line dialogues? Explicitly? Conceptually?
Mike
Mike, I agree with you that blogging presents a line-drawing problem, which is made particularly acute by comment threads. To complicate the problem, what about slashdot rating systems for commentators, which are well-known on political blogs. Now law blogs, w/the exception of the VC, haven’t really needed traffic management of comments to date, but maybe one day they will. Does encouraging folks to rate each other, with the possible effects on human subjects, make it look more or less like research? If you were to later write about the rating system as a part of a project on deliberative democracy?
I’m tempted, of course, to see this as mission creep in the regs., that could be solved by HHS, but which won’t be until someone, somewhere, is taken to task for blogging-like activity. Thus, I evaluate the legal risks facing law professor bloggers in order of seriousness as copyright infringment, IRB meltdown, and libel. And libel is a distant third.
Dave,
Everything is creeping (creepy?). For example, Orin Kerr has what I think is a reasonable commenting policy at orinkerr.com, but Orin is privately rating his commenters. If Orin writes up something about his rating experience, does that make his system “research”? If I write it up (relying on observations of Orin’s blog, for example), is that different?
We could spin out a lot of examples. I’d put privacy claims high on your list of serious potential problems, however, behind copyright and related IP issues, and before IRB meltdown.
Mike
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