Articles on Law, Science, and Engineering

Warnings to Researchers & Federal Agencies[index]

Although the Abbs case was dismissed for lack of jurisdiction, Judge Posner's opinion carries important messages to both research professionals and the agencies that administer research grants. Clearly, a potential source of great difficulty for both the funding agencies and the researchers is the ALERT system: potential harm from the system can destroy the reputation of the innocent and serve as the basis for overturning findings against the guilty.

A related message to funding agencies is that funding and oversight must be conducted with due recognition for the enormous value of federal grants to research professionals. In addition to the dollars grants bring to universities and research institutes, many institutions substitute the fate of grant applications for evaluations by those who should be making them locally. Peer review approval of grant applications by anonymous reviewers is used to determine who gets tenure, who gets laboratory space, who gets promoted, and who gets fired. The dependence has become so great for some researchers that a protectable property interest is emerging.

An important message to research professionals is that the courts will provide no protection from the inconvenience and expense of proper administrative oversight to control research misconduct or any other misuse of federal funds. Individuals who are willing to place their fate in the hands of anonymous reviewers have undermined their claims for due process and independence. The emerging property interest is accompanied by new costs and different responsibilities.

Federal involvement in research funding has created a complex dependency of modern academic research on Uncle Sam. The financial and other sacrifices of three decades ago are no longer required of modern academic research professionals, and as a consequence, society no longer holds them in their previous position of respect. It is ironic that involvement of public monies has been accompanied by a smaller cut for society of increasing benefits from research. Research data, once regarded as collected in trust for the benefit of society, is increasingly regarded as the property of those who collect them. The generation of biotech companies with products priced beyond the reach of many whose taxes funded fundamental research in molecular biology and genetics is one example amongst many.

Both Judge Crabb and Judge Posner demonstrated substantial insight in describing "the scientific grants business." Judge Posner recognized the potential of a legally protectable interest in obtaining grants, at least for professors whose primary role is outside the classroom. However, the change from trustee to businessman cuts both ways. As the courts recognize legally protectable interests in having access to public grant funds, they will also apply ordinary principles of administrative law to control conduct using those funds. Thus, professionals engaged in the "grants business" should expect to sustain the usual disruptions and costs of investigations and administrative hearings.

Judge Posner's dictum that a "serious danger of having grant money reduced" would be sufficient grounds for Dr. Abbs to challenge the blacklist undoubtedly got the attention of attorneys for OSI. In their shoes we would be strengthening procedures to protect researchers from imminent irreparable harm from the ALERT system and all other aspects of the OSI investigatory and adjudicative process.

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