Disclosure, Scholarly Ethics, and the Future of Law Reviews: a Few Preliminary Thoughts

• Publication year: 2021

DISCLOSURE, SCHOLARLY ETHICS, AND THE FUTURE OF LAW REVIEWS: A FEW PRELIMINARY THOUGHTS

Ronald K.L. Collins(fn*) and Lisa G. Lerman(fn**)

The reader should know through what

spectacles his adviser is viewing the problem. (fn1)

-William O. Douglas

Washington Law Review (1965)

Scholarship is the work-product of scholars. The word derives from the Latin schola, as in school. Hence, scholarship is related to education, which in turn is related to the advancement of human knowledge. By that measure, the best scholarship may increase our knowledge, both practical and theoretical. But when undisclosed bias affects that which is offered up as knowledge, it may unduly slant our understanding of life, law, and other things that matter. While bias-free knowledge may be a utopian ideal, it is, nonetheless, a principle worthy of our respect.

Case in point: According to the Washington Post,(fn2) the National Rifle Association has funded some of the scholarship propounding the view that the Second Amendment protects an individual right to own a gun. Before this sponsored scholarship, such an interpretation of the Amendment was regarded as tenuous.(fn3) Over three decades and a number of books and articles later, the United States Supreme Court, in 2008, recognized for the first time an individual, though limited, constitutional right to possess a gun.(fn4) The change has altered the political and regulatory framework and constrains attempts to stem the tide of gun violence in the United States. Whatever one makes of this, there is reason to believe that the success of a legal scholarship campaign funded by the NRA and the gun industry might well have affected the direction of the law.

It is not easy to decipher which articles on the Second Amendment were paid for by the gun lobby because very few of these articles include information about financial support, if any, for the work.(fn5) This is unsurprising because the vast majority of law reviews do not require disclosure of financial support or affiliations that might compromise the intellectual independence of their authors.(fn6)

One scholar reports that in 2008 only 5.5% of law review articles included acknowledgement of financial support for research.(fn7) Perhaps half of these acknowledged donors are universities, which routinely support research and usually have no impact on the content.(fn8) Thus, almost ninety-five percent of law review articles included no information about whether the researcher received financial support for the work. Because virtually all law reviews have no disclosure policy, these authors are free to reveal or conceal the sources of their funding and their affiliations.(fn9)

In varying ways, legislators, regulators, and judges rely upon legal scholarship in developing law and policy and in writing, amending and interpreting legal rules. Scholars have time to delve deeply into the topics on which they write. At its best, their work is respected because of the depth of inquiry involved and because of their expertise. It is important, then, for legal scholars to exercise independent judgment and likewise to be open and candid with their audiences as to how they reached their conclusions.

I. IMPARTIALITY AS A PROFESSIONAL NORM

American judges must recuse themselves from deciding matters if their "impartiality might reasonably be questioned . . . ."(fn10) Such impartiality is defined as the "absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues . . . ."(fn11) What is important is not only actual judicial integrity, but the appearance of integrity as well. It also is important for anyone involved in the judicial system to have full knowledge of those who judge them, including possible sources of bias.

Like judges, all lawyers are expected to uphold the administration of justice, and accordingly, to avoid conduct that exhibits bias. Commentary in the Model Rules of Professional Conduct explains it this way: "A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates [the Model Rules] when such actions are prejudicial to the administration of justice."(fn12) While this passage formally applies only to the conduct of lawyers representing clients, the basic principle underlying the rule certainly is relevant to legal scholars. To be sure, we do not regulate legal scholars in the same way that we regulate judges and lawyers. Nevertheless, we expect scholars to embody high standards of integrity in the work that they do. While scholars do not decide cases, they publish articles that may influence the outcomes of cases and impact the development of the law. The legitimacy of legal scholarship depends on the integrity of the scholar's work. Both the careful process that law schools undertake in reviewing the written work of a prospective faculty member, and the review process law journals engage in before they make an offer to publish, provide some safeguards of the disinterestedness and the integrity of the scholar's work product. Even so, given current standards (or the lack of them), much legal scholarship is published without editorial knowledge or disclosure of the authors' backgrounds and affiliations.

II. TRANSPARENCY IN DISCLOSURE POLICIES

How much we value what is offered to us as fact depends on how information is presented and who presents it. This much is obvious from the way we speak, as in, "You cannot believe anything on Fox News," or "Did you expect the New York Times to be objective?" So, too, some express skepticism when, for example, they hear of an environmental assessment prepared by either the Sierra Club or underwritten by ExxonMobil. To much the same effect, consider how we might judge a report on the causes of violence in America if the study were, on the one hand, conducted by the National Rifle Association, or, on the other hand, underwritten by the Coalition to Stop Gun Violence. Or how might we view the objectivity of a judge presiding over a case in which she or her spouse had a financial interest? In all of these instances and others, we would have suspicions. This is not to say that a bias-free result is impossible in every such instance. But it is to say that we do want to know of that potential for bias and we do want to know the facts or affiliations that may jeopardize what is offered to us as fact. In other words, disclosure is important; transparency matters; and the more we know about the speaker's perspective and potential biases, the more likely we are to make truly...