Disclosing Our (or Our Institution’s) Potential Biases. Or Not.
I teach at a university with no medical school, so we don’t have a conflict of interest (COI) policy addressing teaching, speaking and scholarship. This isn’t a criticism of my institution – my calls to colleagues at other institutions suggests that most law schools haven’t adopted such a policy; if anything, they fall under a university policy adopted primarily to deal with conflicts of interest in medical research. Indeed, the ABA Law School Accreditation Standards address conflict of commitment (outside activities); a search of AALS Statements on Good Practices produced nothing about faculty conflicts of interest except in the context of serving on an accreditation team; and even the AAUP conflict of interest guidelines focus exclusively on human subject research.
Given the recent work I’ve done critiquing physicians and medical schools about their inadequate management of COIs, I felt hypocritical about the lack of guidance from my own institution on this issue, and (naively) became excited about the opportunity, given the apparent lack of attention to the issue in the legal academy, to create a cutting edge policy. Like many law schools, our dean spends a disproportionate amount of time fund-raising, and he’s getting pretty good at it. My institution is located in New Jersey, where pharmaceutical companies are among the most generous corporate givers, including to my institution. Wholly unsolicited, we were also the beneficiary of a (very controversial) endowed chair as part of a deferred prosecution agreement (DPA) between the then-New Jersey U.S. Attorney (an alum) and a pharma company. We were perfectly positioned to lead this self-reflective process, I thought, and could be a thought-leader among law schools.
So, having been steeped in articles about conflicts policies for months, and having nightmares about being the first law school swept up in Senator Grassley’s campaign against COIs, I blithely placed a proposal on a faculty meeting agenda, recklessly assuming it would be a no-brainer, because, I reasoned, lawyers are at least as attuned to and sensitive about COIs as other professions. I have terrific colleagues who are very thoughtful – about everything, including as I painfully learned, my proposed COI policy.
Like academic physicians, our faculty fell along the entire spectrum of never seeing a scenario that created a conflict of interest to, as I’m sure some would describe my position, seeing everything as a conflict. An extremely abridged recounting of a faculty dialogue is illustrative. I thought that disclosing to an audience, including students in a class, when one had represented one of the parties in a case under discussion was a clear case of a conflict simply resolved by such disclosure. A good place to start, I reasoned, since it is so uncontroversial. Well, actually, one of my colleagues passionately argued that his legal positions precede his agreement to work on any case, so that his consultations and involvement in litigation do not comprise a conflict, because his positions do not arise from his representation or expert testimony. Further, even if they did, he felt strongly that his audience should not know that he assisted a particular litigant because it might bias their reaction to his legal analysis. (Really.) And finally, even if the policy required disclosure of such representation, there should be a statute of limitation on the obligation because…I forget why….
And then there’s indirect financial benefit. Clinical investigators’ holding investments in the product being tested in a trial involving human participants has come under tremendous criticism of late. I didn’t think it was necessary to go so far as to state that law faculty shouldn’t write about the law’s affect on entities in which they invest, simply that they should disclose that investment interest. Let me begin by admitting how refreshing it was to learn that some of my colleagues aren’t quite sure what their Wall Street spouses actually do, except that it’s something to do with the stock market. Acknowledging the conflict, the question then became whether it could be managed by the law professor spouse remaining ignorant of family equity holdings, which could include, of course, investments in entities that are the subject of the professor’s scholarship. This was the subject of extensive discussion which, if I recall correctly, led to the crafting of language of which I am certain we had about four interpretive understandings, which enabled it to pass when voted upon.
Our energies were depleted by the time we finished addressing individual conflicts of interest, so we punted on institutional conflicts of interest until this year. If you are wondering what we could possibly have left unaddressed that would require another year of discussion — remember the DPA endowed chair – it presents a possible institutional conflict of interest for those few faculty who write or speak about prosecution of corporate corruption, DPAs and federal monitors. Do these faculty have to disclose the institution’s status as a beneficiary of a DPA? This discussion raised the jurisdictional question of whether our own conflict of interest policy should compel disclosure by a faculty member publishing or speaking in a context ungoverned by a COI policy (which remains the case at many law schools), or whose policy fails to capture institutional conflicts such as this one. It is probably unsurprising to you that the school year concluded before we truly plumbed the depths of these questions.
I speak frequently at medical schools, where I complete paper-work in advance disclosing any conflicts, and, more recently, am now required to address COIs in one of my first powerpoint slides. I have begun revealing my conflicts to legal audiences as well, even though I have yet to be asked about it. I know other law school deans are even more successful than my own in fund-raising. So, I find it curious that I never hear colleagues at law conferences disclose conflicts, and rarely see an asterisk footnote in law review articles identifying conflicts. While law professors’ conflicts of interest may not attract Senator Grassley’s attention, our standing as a profession, and our duties to our students and readers suggest that the issue might merit some of our consideration.
Seton Hall Law School, the author’s employer, is the recipient of grants, donations and endowments from the pharmaceutical industry. No part of the author’s compensation is funded by these gifts.