Toward a Natural History of Ethical Censorship/Response to Comments
Katz, Jack, Feeley, Malcolm M., Law & Society Review
Acting under a mandate to protect human subjects of research, institutional review boards (IRBs) have become nationwide instruments for implementing censorship. As censors, IRBs constitute an historical novelty in the United States. In the past censorship has been administered as the overt policy of centralized agencies. Examples include the use of government criminal prosecution offices to bans books as obscene and the Hays Commission, Hollywood's all-encompassing, "self-policing" funnel for prescreening and forcing the editing of movies. Previous forms of censorship were not always shy to declare their purpose. While stimulating many subtle processes of repression in work organizations, Cold War politicians histrionically demanded repression of subversive professors, journalists, and entertainment writers, providing clear political targets for opposition. By contrast, the IRB censorship role has operated behind multiple masks: the institution's inspiring ethical mandate, which itself emerged as a way retrospectively to oppose infamous examples of brutish, overbearing state power; the confidentiality that surrounds IRB administrative proceedings, which exists without explicit rationale but may be justified as a beneficent precaution to protect researchers from the humiliation of public rejection when proposals are found wanting; and the operationalization of repressive power in a form especially difficult to map, namely through the highly differentiated, vast social geography of higher education.
Advocates and critics of IRB power often debate the interest of avoiding harm to research subjects against the value of protecting freedom for critical inquiry and expression. But if IRB censorship operates in relatively hidden ways, a research program will be required to ground any compelling conclusions. How to structure that research is not obvious. Malcolm Feeley wisely counsels thatwe make use of the convergence of research traditions that led to legality studies.
Before directing his work toward illuminating legality as a morality for the exercise of power, Selznick had developed a series of organization studies, kicked off by Michels' finding of the systematic emergence of hierarchical domination emerging in the administration of socialist parties (Selznick 1949). When social research began to focus specifically on issues of legality, the investigative domain was, most consistendy, social relations at work: in labor relations (Selznick et al. 1980); in the exercise of police discretion (Skolnick 1966; Bittner 1967); in the everyday routines of court administration (Feeley 1979). Investigators studied people at work in order to see through the vagaries and isolate the systematic ironies that frustrate the achievement of legality in the practicalities of governance.
At about the same time, legal academics were discovering a series of injunctions implicit in the morality of law (Hart 1961; Fuller 1969; Davis 1969). Three will be indispensable for understanding how IRBs have institutionalized the power to censor.
1. No law (or regulation) can be morally defended if it demands the impossible.
2. Laws should be floated for public discussion by those likely to be affected.
3. As they review and adjudicate individual cases, administrators should make themselves reviewable. Minimally, officials should make records of what they have considered and decided so that they can take distance from themselves in reviews conducted at a later date. Maximally, they should articulate reasons that can be reviewed publicly.
Research following in the footsteps of legality studies would describe three courses of organizational history. How have IRB rules and procedures changed in what is now a 30-year history? How has the evolution of IRBs been shaped by the changing environment of higher education as a social institution? How has the history of social research been shaped by the impact of IRB power? …