Does the theory of vicarious liability apply to cases of research fraud?

How big a problem is research fraud, especially in the soft sciences like psychology, economics, and political science? By now, most people in Academia are familiar with the case of Diederik Stapel, a former professor of social psychology at Tilburg University who allegedly fabricated data in over 50 of his published research papers. (See, e.g., Ewen Callaway, “Report finds massive fraud at Dutch universities,” Nature, Vol. 479 (Nov. 1, 2011), p. 15.) Then there is the more recent case of Michael LaCour, a PhD candidate at UCLA who also allegedly fabricated data for a social science study that was published (and then later retracted) by the journal Science. (See Marcia McNutt, “Editorial expression of concern,” Science, Vol. 348, no. 6239 (June 5, 2015), p. 1100. By the way, we are using the word “allegedly” in these cases in order to immunize ourselves from legal liability for defamation.)

In truth, cases of research fraud in science are still relatively rare overall (though such cases do appear to be increasing), and one of the virtues of science is that it’s a self-correcting process. Sooner or later, alleged frauds like Stapel and LaCour will be detected and exiled from Academia. But at the same time, even a few publicized cases of research fraud can threaten the credibility of science as a whole, presenting a distorted view of science to the public and providing ammunition to science’s detractors. (But don’t take our word for it; consider the “ClimateGate” controversy.)

In this blog post (and in an ongoing legal research project that we are currently working on), we pose a different question, a legal one. Under what conditions, if any, could academic institutions themselves (e.g. universities, research institutes, etc.) be legally liable for fraud committed by their researchers? Under the well-established legal theory of vicarious liability as well as centuries of common law precedents, for example, a principal or “master” can be legally liable for the harms caused by its agents or employees, but only if those harms occurred within the scope of the agent’s or employee’s employment. Thus, if the following two conditions are met—(1) if a fraudulent researcher is employed by a university or other academic institution, and (2) if the researcher’s fraud has occurred within the scope of his employment—then one can make a very strong legal case indeed for imposing vicarious liability against the university itself.

Let’s return to the case of Diederik Stapel, by way of example. He was affiliated with two prestigious research institutions in the Netherlands during his alleged fraudulent research spree: Tilburg University and the University of Groningen. Although we have no direct or personal knowledge of these institution’s inner workings, it is very likely that Professor Stapel’s legal status was that of an “employee” or agent of both universities while he was teaching and conducting research at both places. Furthermore, one could also argue that academic research, including the collection of data and the publication of original research, is completely within the scope of a university professor’s employment.

In other words, the many possible “victims” of Professor Stapel’s alleged research fraud, including the academic journals that published (and later retracted) his papers and his fellow colleagues who relied on his research in their own work, could in theory bring a civil action against Stapel’s employers under the theory of vicarious liability. Of course, these potential plaintiffs would still have to prove damages in order to win their case, but we would argue damages should not be too hard to prove in cases of research fraud. Specifically, a journal that publishes a fraudulent paper suffers a serious harm to its reputation. Likewise, researchers who cite a fraudulent paper waste valuable time and resources when they rely on the fraudulent paper in their own research. Of course, a judge or jury would still have to quantify or monetize the damage to a journal’s reputation or a fellow researcher’s loss of time and resources, but it’s worth noting that legal actors in ordinary tort cases are able to monetize more amorphous damages such as “pain and suffering.”

In a future post, we will explore another legal theory for imposing vicarious liability in cases of research fraud: the doctrine of “apparent authority.” This doctrine would be especially relevant in cases in which the researcher was not (legally speaking) an “employee” of a research institution. In addition, we will consider whether a U.S. court could have “jurisdiction” over cases involving alleged fraud by researchers living abroad. Stay tuned …

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One Response to Does the theory of vicarious liability apply to cases of research fraud?

  1. Pingback: “Research fraud as tort” | prior probability

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