[lg policy] When Should Linguists Disclose a Conflict of Interest?

Wed Dec 16 15:17:51 UTC 2009

When Should Linguists Disclose a Conflict?

December 15, 2009 @ 8:23 pm · Filed by Geoff Nunberg under Language and the law

Questions about disclosure of possible conflicts of interest don't
arise very often in our field. I take that as that as a testament to
the economic insignificance of our results. There are plenty of people
who have a financial interest in linguistic research, but they rarely
have a stake in having it come out one way rather than another, the
way a pharmaceutical company does if it can show that drug X is more
effective than drug Y. You don’t have to worry about ethical conflicts
when the author can be presumed to have an unequivocal interest in
doing the science right. They only become important when the author
might conceivably have an interest in doing the science wrong.

But these questions can arise when a linguist is engaged to testify as
an expert witness in a legal proceding and decides to revisit the
issue later in a scholarly talk or publication. In fact it was a
disagreement about just such a situation that provided the impetus for
a symposium at last January's LSA meeting on "Ethical Issues in
Forensic Linguistic Consulting."

The backstory: Some years ago I served (pro bono) as the linguistics
expert for a group of Indians who petitioned the Trademark Board to
cancel the trademark of the Washington Redskins on the grounds that
federal law disallows the registration of marks that are disparaging.
I wrote a report arguing that redskin had a long history of use as a
derogation, and that it retained those connotations now, as witness
the contemporary dictionaries that label the word "offensive slang"
and the like.

Ronald Butters of Duke was one of the two linguistic experts engaged
by the Redskins organization. He wrote a report arguing that redskin
was a neutral, if informal, synonym for Indian that did not have and
had never had any disparaging connotations — the dictionary labels, he
said, were just capitulations to political correctness.

A year later Professor Butters made the same argument in a talk he
delivered at the Dictionary Society of North America, without
disclosing that he had been retained by the Redskins in the trademark
case, and a while after that he made the same point in a posting to
the American Dialect Society list, again without saying anything about
his earlier legal engagement.

I posted to the list to suggest that Professor Butters should have
mentioned his work for the Redskins when he presented his views on the
word. He responded that disclosure "just didn't seem particularly
important." His involvement in the Redskins case, he said, was
irrelevant to the evaluation of his research, adding later that
"it has always seemed to me that the truth is the truth, regardless of
the source." He noted, correctly, that neither the LSA nor any other
relevant organization had any rules that required such disclosures. In
response, I argued that disclosure was appropriate whenever there
might be a presumption that one's views have been influenced by the
interest of a client, whether or not there was an explicit disclosure
policy — as I put the point in my symposium paper, "policies don’t
create practical and/or ethical imperatives about disclosure and
conflicts, they just institutionalize and formalize them." Readers
with time on their hands can track our conversation here, here, here,
here, here, here, and here. (Readers who want to know more about the
case itself can start with the rulings, discussions, and law review
articles here, here, here, here, and here.)

We did agree on one thing, though, which is that these issues deserved
a more thorough and thoughtful discussion both among forensic
linguists and within the field as a whole.

I dropped the ball after this, but Ron Butters got together with Ed
Finegan of USC and organized last year's LSA symposium, with
presentations by Butters, Finegan, Gail Stygall and Janet Ainsworth on
a variety of ethical issues surrounding linguists' expert work: mine
was called "Is it Ever Okay Not to Disclose Work for Hire?"(The
symposium was chaired by our own Roger Shuy, who heads up the Big Sky
offices of Language Log LLP; he described the panel in a LanguageLog
post in October of 2008.) The papers from the panel will appear in a
forthcoming number of the International Journal of Speech, Language,
and the Law; I recently got back the edited version of mine, and
posted it here.

So when is a linguist obliged to disclose a prior expert engagement in
reporting research? In the paper, I proposed a "client's interest
test": if your views on an issue are the product of work that was
undertaken on behalf of a party who will benefit if your opinion is
favorable to that party’s interests, then your audience has a right to
know that. My sense is that this would probably cover pro bono work as
well as work for hire — and in any case, what compelling reason is
there not to disclose? (The only exception is when a linguist is asked
to testify on the results of research that was undertaken for
independent reasons before the legal matter arose — if someone asks
John Baugh to testify about his work on accent discrimination, say, he
doesn't have to disclose that every time he mentions the subject from
then on.)

But do we have to codify this: should linguistics — or more
specifically, the LSA, Language, etc. — have a policy on disclosure of
conflicts? I had argued in my posts of the ADS list that we should,
but I wound up concluding that it wasn't necessary. The question
doesn't come up that often, and when it does it can usually be
referred to ethical common sense. But I have no doubt that many others
would argue that these issues can sometimes be complicated or
nonobvious, and that scholars need a standard to point to in cases of
disagreement.

http://languagelog.ldc.upenn.edu/nll/?p=1961

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