Promoting a Scholar's Privilege: Accelerating the Pace: [Commentary

Abstract

As social scientists involved in issues of research ethics and science policy, we appreciate the position taken in the McLaughlin paper (1999). McLaughlin advocates for a limited social science research privilege and the importance of its recognition through common law. Both points are essentially sound. As we argue here and elsewhere (Levine 1994), a research privilege is necessary to produce critical knowledge without constraint or interference and to protect persons who provide confidential information. Further, scholars should be encouraged to use the courts when necessary to press for recognition of a researcher's privilege. The McLaughlin analysis is compatible with the reasoning advanced by the American Sociological Association (ASA) in amicus briefs submitted before the courts in Popkin (United States v. Doe, 460 F.2d 328 [1st Cir. 1972]), Brajuha (In re Grand Jury Subpoena, 750 F.2d 223 [2d Cir. 1984]), and subsequently Scarce (In re Grand Jury Proceedings, 5 F.3d 397 [9th Cir. 1993]). In the Scarce case, the ASA urged the court to recognize a qualified privilege for scholars to protect information received in confidence based on researchers' ethical obligations to their subjects and on the public's interest in fostering high-quality, accurate, and complete research. The ASA maintained that such a privilege should be recognized in criminal investigations and in civil discovery absent an overriding, compelling need to the contrary. The ASA further argued that a common law privilege for research information obtained under a pledge of confidentiality fosters important First Amendment interests. The Association buttressed its position by