Academic Biases (Regarding Google, and Beyond)

Yesterday a vice president of the European Commission announced preliminary conclusions regarding the EU’s antitrust investigation into Google. The EC has warned Google to “change or face fines,” as Alex Barker puts it, noting “possible antitrust problems in how Google favours its own products in search results.” I cannot predict exactly how far US cases will go, or if the EC’s efforts to guide the development of the search market will succeed. (I have offered some preliminary thoughts at Danny Sokol’s excellent symposium on Google at the Antitrust & Competition Law Blog.) However, I applaud the EC for its attention to the matter.

After attending the “Regulating Search” conference in 2005, I spent some of my early academic career trying to understand whether complaints about Google had merit. I was publishing on the matter in 2006, and have continued to do so. When I started writing about this topic, some established scholars mocked my interest in it. After I published Federal Search Commission? with a co-author, one IP professor loudly scoffed that “maybe we need a federal map commission” at a conference where the restaurant location was unclear. Establishment voices who have fought for net neutrality looked with disdain or bored incomprehension at someone who dared to question a Silicon Valley darling. One scholar even threw a draft of mine on the table at a faculty talk, loudly muttered “This is not scholarship!,” and boldly predicted that Google’s dominance of search couldn’t last for more than a few years. (That was in 2008.)

I don’t know whether the EU’s actions today will lead these skeptics to a different view of my work, or to condemnations of creeping socialism. But I do think the EU has now confirmed that it was appropriate for a legal scholar to raise the types of questions I have posed over the past six years. They deserved to be part of the agenda of internet law.

This is a somewhat roundabout (and hopefully not too self-pitying) response to Frank Bowman’s earlier post on the role of outside funding in academic research (and particularly Eugene Volokh’s intervention regarding First Amendment protection for search results). Like Bowman, I worry about the effect of outside money on research. However, I think it is often the academy’s own biases and presumptions that most threaten independent thought.

I am all in favor of more disclosure of the role of funders in shaping any piece of academic research. The situation is dire in economics, and I worry that law profs will lose credibility if we fail to be completely open about all payments for academic work. I have found that not taking outside funding from corporate clients for my writing and research has liberated me to consider certain fields in a more theoretical and disinterested way than an advocate can. It has also allowed me to move on to what I see as bigger problems (such as the implementation of electronic health records, or the role of technology in finance) once I’ve “said my piece” regarding search.

I do worry that actual (or potential) funding will affect researchers’ substantive positions. And perhaps there are some professors who are so connected to certain large companies that they literally cannot take a position adverse to those companies in their scholarship. If that is the case, it needs to be more widely known.

However, in the case of Volokh, I have no doubt he’d produce very similar opinions on Google’s situation regardless of whether they were sponsored or not. He has been at the vanguard of expansive interpretations of corporate speech protection for over a decade. Moreover, in the First Amendment area, precedents appear to offer little constraint on the current Supreme Court. Cases like IMS Health and Citizens United essentially invite creative minds to push the boundaries of the First Amendment.

So perhaps I am not as concerned about outside funding as Bowman is. At the present time, the larger problem is likely the unquestioned assumptions that constrain inquiry in given fields—be they derived from perceived political necessity, a wish not to offend those at the top, undue deference to “tech geniuses,” or sheer habit. As Gillian Tett and John Gaventa have shown (in very different ways), the most critical power is to control the agenda, to determine what gets talked about and what does not. The “social silence” on certain topics is deafening. I worry about research agendas warped by money, but I’m more concerned by professional quiescence and inertia that could lead scholars to miss the most important problems of their day.

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