From the Field to the Courthouse: Should Social Science Research Be Privileged?
Robert H. McLaughlin
Robert McLaughlin is a graduate student in the Department of Anthropology, University of Chicago. He received a B.A. from Columbia University in 1994 and a J.D. from the University of Chicago in 1997. He wishes to thank John Comaroff, Albert Alschuler, the anonymous reviewers for their comments and encouragement in preparing this paper, and Paula Rubel for her course on research methods in anthropology, which motivated the research.
Search for more papers by this authorRobert H. McLaughlin
Robert McLaughlin is a graduate student in the Department of Anthropology, University of Chicago. He received a B.A. from Columbia University in 1994 and a J.D. from the University of Chicago in 1997. He wishes to thank John Comaroff, Albert Alschuler, the anonymous reviewers for their comments and encouragement in preparing this paper, and Paula Rubel for her course on research methods in anthropology, which motivated the research.
Search for more papers by this authorAbstract
Social scientists need clarification about the extent to which the confidential aspects of their research are protected from compulsory disclosure in legal proceedings, and the extent to which they ought to be. Investigating the nature of social science research with an emphasis on researcher-participant relationships in ethnographic practice, I conclude that a qualified privilege would confer three major benefits on social science researchers: confidence that the government will not unnecessarily interfere with research, facilitation of improved researcher-participant relationships, and increased accuracy, thoroughness, and reliability of research data. I also discuss the development of privilege and confidentiality issues in practical research contexts through an examination of two criminal cases in which social science researchers refused to divulge the confidential information obtained in the course of research. Finally, I discuss the possible formulations of a scholarly research privilege. This is especially important because courts have cast social scientists as members of the larger community of academic or scholarly researchers with respect to these issues. Potential sources of protection include state journalist protection laws, federal common law, and federal statutory law. Evaluation of these sources and the case law to which they correspond suggests that developing common law privileges in state and federal jurisprudence is the most promising means of affording the confidential aspects of social science research legal protection. As researchers continue to press privilege
REFERENCES
- Ablon, Joan. 1994. Reflections on Fieldwork with Little People of America: Myths and Methods. In Fowler and Hardesty 1994.
- Akeroyd, Anne, V. 1984. Ethics in Relation to Informants, the Profession, and Governments. In Ellen 1984.
- American Anthropological Association. 1973. Professional Ethics: Statements and Procedures of the American Anthropological Association. Washington , D.C. : American Anthropological Association.
- American Bar Association (ABA). 1993. ABA Model Rules of Professional Conduct. Reprinted in Gillers, Stephen, and Roy D. Simon Jr. Regulation of Lawyers: Statutes and Standards. Boston : Little, Brown.
- American Psychological Association. 1993. Ethical Principles of Psychologists and Code of Conduct. Washington , D.C. : American Psychological Association.
- Appell, G. N. 1978. Ethical Dilemmas in Anthropological Inquiry. Los Angeles : Crossroads Press.
- Boas, Franz. 1919. Scientists as Spies. The Nation, 19 December, 797.
- Brajuha, Mario, and Lyle Hallowell. 1986. Legal Intrusion and the Politics of Fieldwork: The Impact of the Brajuha Case. Urban Life 14: 454–78.
- Brown, Bruce, P. 1983. Free Press, Privacy, and Privilege: Protection of Researcher-Subject Communications. Georgia Law Review 17: 1009–48.
- Campbell, Mary, B. 1988. The Illustrated Travel Book and the Birth of Ethnography: Part I of de Bry's America. In The Work of Dissimilitude: Essays from the Sixth Citadel Conference on Medieval and Renaissance Literature, ed. David G. Allen and Robert A. White. Newark : University of Delaware Press.
- Carrington, Paul, D., and Traci, L. Jones. 1996. Reluctant Experts. In Cecil and Wetherington 1996.
- Cecil, S. Joe, and Gerald T. Wetherington, eds. 1996. Court-Ordered Disclosure of Academic Research: A Clash of Values of Science and Law. Law and Contemporary Problems 59 (summer): 1–191.
- Clifford, James. 1995. Anthropology's Edges. A Celebration of the Scholarship of George W. Stocking, Jr. University of Chicago, Humanities Institute. Typescript.
- Committee on Federal Agency Evaluation Research. 1975. Protecting Individual Privacy in Evaluation Research. Washington , D.C. : National Academy of Sciences.
- Cotchett, Joseph, W., and Arnold, B. Elkind. 1993. Federal Courtroom Evidence. 3d ed. New York : Butterworth.
- Coutin, Susan Bibler. 1994- Enacting Law Through Social Practice: Sanctuary as a Form of Resistance. In Contested States: Law, Hegemony, and Resistance, ed. Mindie Lazarus-Black and Susan F. Hirsch. New York : Routledge.
- Crabb, Barbara, B. 1996. Judicially Compelled Disclosure of Researcher's Data: A Judge's View. In Cecil and Wetherington 1996.
- Du Bois, Cora. 1970. Studies in an Indian Town. In Women in the Field: Anthropological Experiences, ed. Peggy Golde. Chicago : Aldine.
- R. F. Ellen, ed. 1984. Ethnographic Research: A Guide to General Conduct. San Diego , Calif. : Academic Press.
- Ellen, R. F., and David Hicks. 1984. Preparation for Fieldwork. In Ellen 1984.
- Fowler, Don, D., and Donald, L. Hardesty. 1994. Others Knowing Others: Perspectives on Ethnographic Careers. Washington , D.C. : Smithsonian Press.
- Gay, Lance. 1998. Criminal Lawyers Want Parent-child Confidentiality. Orange County Register, 14 February, 26.
- Goodale, C James, Joseph P. Moodhe, and Rodney W. Ott, eds. 1995. Communications Law: Reporter's Privilege Cases. PLI Pat., Copyrights, Trademarks, and Literary Property Course Handbook Series No. 412, 63. New York : Practicing Law Institute.
- Gooding, Susan. 1996. Reeling from Justice: Ritual Mappings of Identity in a Native American Court Case. Workshop on Religion, Law, and the Construction of Identities. University of Chicago. Typescript.
- Hallowell, Lyle. 1985. The Outcome of the Brajuha Case: Legal Implications for Sociologists. Footnotes 13 (December): 1, 13.
- Hazard, C. Geoffrey, Susan P. Koniak, and Roger C. Crampton, eds. 1994. The Law and Ethics of Lawyering. Westbury , N.Y. : Foundation Press.
- Hendel, Samuel, and Robert Bard. 1973. Should There Be a Researcher's Privilege AAUP Bulletin 59 (winter): 398–401.
-
Humphreys,
Laud. 1970. Tearoom Trade: Impersonal Sex in Public Places.
Chicago
: Aldine.
10.1007/BF02812336 Google Scholar
- Labaton, Stephen. 1998. The Law Ranks Its Privileges. New York Times, 22 February, 5.
-
Leo,
Richard, A.
1995. Trial and Tribulations: Courts, Ethnography, and the Need for an Evidentiary Privilege for Academic Researchers.
American Sociologist
26: 113–34.
10.1007/BF02692013 Google Scholar
- Lorant, Stefan, ed. 1965. The New World: The First Pictures of America. New York : Duell, Sloan, and Pearce.
- Marcus, Richard, L. 1991. Discovery Along the Litigation/Science Interface. Brooklyn Law Review 57: 381–428.
- Melton, Gary, B. 1988a. When Scientists Are Adversaries, Do Participants Lose Law and Human Behavior 12: 191–206.
- 1988b. Must Researchers Share their Data Law and Human Behavior 12: 159–62.
- Mueller, Christopher, B., and Laird, C. Kirkpatrick. 1995. Federal Rules of Evidence with Advisory Committee Notes, Legislative History, and Case Supplement. Boston : Little, Brown.
- Nash, Dennison, and Ronald Wintrob. 1972. The Emergence of Self-consciousness in Ethnography. Current Anthropology 5: 527–41.
- Nejelski, Paul, and Howard Peyser. 1975a. A Researcher's Shield Statute: Guarding Against Compulsory Disclosure of Research Data. In Committee on Federal Agency Evaluation Research 1975.
- 1975b. An Act to Protect Researchers and Their Subjects. In Committee on Federal Agency Evaluation Research 1975.
- Paul, Benjamin, D. 1953. Interview Techniques and Field Relationships. In Anthropology Today: An Encyclopedic Inventory, ed. Alfred L. Kroeber. Chicago : University of Chicago Press.
- Pinsky, Valerie. 1992. Archaeology, Politics, and Boundary Formation: The Boas Censure (1919) and the Development of Archaeology during the Inter-War Years. In Rediscovering Our Past: Essays on the History of American Archaeology, ed. Jonathan E. Reyman. Aldershot , England : Avebury Press.
- Punch, Maurice. 1986. The Politics and Ethics of Fieldwork. Beverly Hills , Calif. : Sage.
- Rosman, Abraham, and Paula, G. Rubel. 1995. The Tapestry of Culture: An Introduction to Cultural Anthropology. New York : McGraw-Hill.
- Safire, William. 1998. Privilege Proliferation. New York Times, 5 March, A25.
- Sanjek, Roger. 1990. Fire, Loss, and the Sorcerer's Apprentice. In Fieidnotes: The Makings of Anthropology, ed. Roger Sanjek. Ithaca , N.Y. : Cornell University Press.
- Scarce, Rik. 1994. (No) Trial (But) Tribulations: When Courts and Ethnography Conflict. Journal of Contemporary Ethnography 23: 123–49.
-
1995. Scholarly Ethics and Courtroom Antics: Where Researchers Stand in the Eyes of the Law.
American Sociologist
26: 87–112.
10.1007/BF02692012 Google Scholar
- Shein, Brian. 1987. Playing, Pretending, Being Real. Akert Bay's U'Mista Potlatch Collection: Strength at the Core of Illusion. Canadian Art, spring.
-
Smith,
Gavin. 1989. Livelihood and Resistance: Peasants and the Politics of Land in Peru.
Berkeley
and
Los Angeles
: University of California Press.
10.1525/9780520912021 Google Scholar
- Stocking, George, W. Jr. 1982. The Scientific Reaction against Cultural Anthropology. In Race, Culture, and Evolution: Essays in the History of Anthropology, ed. George W. Stocking Chicago : University of Chicago Press.
- Traynor, Michael. 1996. Countering the Excessive Subpoena for Scholarly Research. In Cecil and Wetherington 1996.
- Ward, Martha, C. 1989. Nest in the Wind: Adventures in Anthropology on a Tropical Island. Prospect Heights , N.J. : Waveland Press.
- Warwick, Donald, P. 1982. Tearoom Trade: Means and Ends in Social Research. In Social Research Ethics: An Examination of the Merits of Covert Participant Observatton, ed. Martin Bulmer. New York : Holmes and Meier.
- Wiggins, Elizabeth C, and Judith, A. McKenna. 1996. Researchers' Reaction to Compelled Disclosure of Scientific Information. In Cecil and Wetherington 1996.
- Williams, Terry. 1989. Cocaine Kids: The lnside Story of a Teenage Drug Ring. Reading , mass. : Addison-Wesley.
