Human Subject Rules As A Violation Of Academic Freedom

Disapproving Of Tactics Isn't Grounds For University Discipline

I don’t know what I think of Boghossian’s hoax. I’m fully convinced these subjects fundamentally lack any truth-relevant standards. However, I haven’t actually read the papers in question and some of the rebuttals have claimed that the papers made observational claims. Peer review isn’t meant to challenge those kind of claims but it is meant to reject nonsense. So, before I settle on a view about the hoax I’d need to see if the papers themselves were obviously absurd even taking the factual claims for granted. However, how you feel about the underlying hoax doesn’t really matter here. There is no question that the hoax was undertaken as a rhetorical tactic to demonstrate the intellectual weakness of certain academic disciplines via the normal practice of submitting journal articles (even if there was dishonest intent). Moreover, many prominent academics praised it as an important contribution. Even if you think this was a pointless, dishonest and mean spirited attack on these disciplines it is well within the traditional academic role. This makes the use of human subject experimentation rules to punish Boghossian for his antics raises serious academic freedom concerns.

While Boghossian’s punishment was, in one sense, a slap on the wrist the particular form it took (essentially a complete ban on participating in human subject research) is very concerning. It is suggestive (though not conclusively) of a desire to bar him from doing further work on this question and not just a desire to see the niceties of IRB review followed. Regardless of the motives of his punishment the value laden choice to apply human subjects rules to a context where they are generally not applied raises concerning questions about academic freedom.

To illustrate the fact that we don’t normally think of human subject rules as being applicable to interactions with other academics in anything resembling normal practice consider the following examples.

Consider the case of Professor Wood debunking N-rays by surreptitiously removing part of the apparatus (without effect) to show it was a hoax. If this episode happened today should we punish Wood for performing an experiment on professor Blondlot without his knowledge? As this episode illustrates, misrepresentations in academic discussion have a long history and as such shouldn’t just be pushed outside the protections of academic freedom.

But maybe you’d object that Boghossian’s research was systematic in a way that Professor Wood’s was not. In that case consider Nosek’s Open science Collaboration. This collaboration literally asked people (other researchers) to perform a task (replicate these existing results) and published papers evaluating the percentage of those tasks that succeeded (successful replications). The project was expressly designed both to prompt researchers in the field to engage in these representations (so wasn’t merely observational) and then to do a systemic evaluation of how the researchers performed (successful replications or not). That’s the archetypal structure of research that requires IRB approval in other contexts.

Or what about going to a philosophy conference and asking your colleagues how they feel about some interesting moral dilemma you thought up. Is it human subjects research to write a philosophy paper noting that this dilemma seems to divide philosophers in such and such a fashion? Does making sure you ask a wide range of colleagues mean it suddenly qualifies? What if your goal is to write a paper arguing that other philosophers are deeply confused about some issue? Surely we don’t want to be running to an IRB every time we get a gestalt sense of what our colleagues believe or accept as evidence. Is it somehow that one is being inexact and summarizing a gestalt sense one’s colleagues believe that saves ones from needing IRB approval?

In that case consider all the conferences, such as the American Geophysical Union meeting, which have taken to releasing the race/gender breakdown of submitted/accepted papers to facilitate analysis and publication. That’s an archetypal experiment which any IRB would deny in another context. The reviewers (subjects) surely didn’t give meaningful consent as they risked professional consequences if they tried to back out after being informed the data summarizing their behavior would be released, if they were informed at all. I mean imagine what your colleagues would think of you if you backed out after finding out that your work would be statistically analyzed to determine racial and gender fairness. Worse, the research would convey potentially highly disturbing information directly to friends and colleagues aware of your status as a subject (perhaps even able to infer how you affected the data if conference organizers gossip).

I’m not saying that any of these behaviors is comparable to Boghossian’s misrepresentations. But I think they show that the choice to apply the human subject rules to Boghossian was highly value laden. Indeed the case with Wood shows we approve of this behavior when we believe the victims truly are charlatans suggesting it’s the belief that grievance studies researchers aren’t charlatan that is driving this application. No matter how wrong you may think that conclusion may be, not being punished for advocating (even in a mean, disrespectful and unpleasant way) for an incorrect view is at the heart of academic freedom.

I mean if universities can use human subjects research ethics as an excuse for condemning Boghossian in this situation I see no reason why they couldn’t do the same next time a philosopher talks to a bunch of colleagues at the APA to get a sense of their view on some controversial topic, e.g., the argument that we have a moral obligation to abort the disabled. I happen to be a fan of what Boghossian was trying to do (even f I might quibble with his implementation) but even if you aren’t you should recognize the potential to apply human subjects rules to do an end run around academic freedom guarantees and use their interactions with other academics, attempts to achieve more transparently on racial/gender fairness and other normal aspects of academic life as an excuse to apply them to controversial academics.

For instance, even though it’s a normal practice to get widespread feedback on a philosophical puzzle or argument from colleagues and reference the overall nature of those opinions in subsequent papers one can easily imagine that in the face of a public controversy about a philosopher advancing a a version of the (very philosophically reputable) argument that women have a moral duty to abort a disabled fetus the same excuse might be used. Just gather evidence that they had indicated their intent to poll colleagues about this argument at the conference (say because they planned to write a paper arguing that philosophers are insufficiently responsive to unpopular moral views) and use that to claim it was a systematic investigation of human subjects.

Peter Boghossian on Twitter

Attached is the outcome of Portland State University’s disciplinary investigation into my Grievance Studies probe. (1)

Standing and The Border Wall

Horrible Outcome Plausible Opinion

So I was initially aghast at the opinion granting the government a stay in Trump v. Sierra (the emergency funding for the wall case). How could the court have done something so obviously wrong. But then I went and read the briefs and came out with a different view.

However, a key caveat here is that it’s only reasonable if Judge McFadden’s decision decision the House lacked standing to challenge is overturned on appeal. If the Supreme Court upholds that then, precedent or no, they’ve endorsed the position that the president could just start spending money without the fig lead of an excuse and no one could challenge it.

First, the court’s stay wasn’t based on whether or not the expenditure was unlawful (obviously yes IMO) but the court’s conclusion that the plaintiffs probably lacked standing. Personally, I would have voted with Bryer to allow the transfer of money but not the start of construction (thus avoiding harm to both parties) but the fact that they convinced Breyer to at least stay the injunction on the transfer of money suggests there was a pretty good argument for this point of view. And, indeed, after reading the briefs (there is only a super short opinion as it was an order) I came away thinking that this was a plausible outcome.

The most important point here is that the court has a long held rule for prudential standing that the interests of the plaintiffs raising a statutory challenge has to fall within the zone of interests the law was intended to protect. For instance, in Tax Analysts the court denied standing to an oil company seeking to challenge an IRS ruling that gave competitors tax benefits it argued were barred by law. I think it’s a stupid rule (uniform application is always an interest of the legislature).

This puts the plaintiffs in a tough spot since they are obviously not within the zone of interests protected by section 8005 (the law that allows the DoD to transfer money in an emergency) so they argue that it’s a constitutional violation of the spending clause since that means the government is spending money without congressional authorization. However, this is a dubious move as in some sense all government actions in violation of a statute are unconstitutional1. I think the fact that any claim of statutory violation could be turned into a constitutional violation to be a reducto of the supreme court’s precedent but the precedent is what it is. Indeed, there is some pretty explicit precedent in Dalton that seems to establish that when the executive makes a decision in a way that violates some constraint congress placed on that decision it doesn’t thereby become a constitutional violation (in the sense that’s relevant for standing). Specifically, the court held that

Our cases do not support the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution. On the contrary, we have often distinguished between claims of constitutional violations and claims that an official has acted in excess of his statutory authority. See, e. g., Wheeldin v. Wheeler, 373 U.S. 647, 650-652 (1963) (distinguishing between “rights which may arise under the Fourth Amendment” and “a cause of action for abuse of the [statutory] subpoena power by a federal officer”); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396-397 (1971) (distinguishing between “actions contrary to [a] constitutional prohibition,” and those “merely said to be in excess of the authority delegated . . . by the Congress”).

I think this distinction is kinda arbitrary and unreasonably provides the (arguably more important) rights protected by structural features of the constitution less protection than explicitly named rights. The plaintiffs try to distinguish Dalton by suggesting it applies only when the decision is ultimately relegated wholly to the discretion of the president but I think this misreads Dalton2.

The government also argues the constitutional violation would occur when the money is transferred between accounts not when it is spent. This feels too clever by half since the intent of section 8005 is obviously to prevent the expenditure of funds on projects congress disapproves of not to change DoD accounting procedures3.

Finally, even if we accept that the challenge should be considered based on a constitutional violation there is some debate over whether the zone of interests test still applies.

The government argues that it does based on an absurdly strained reading of the phrase “statutorily created” arguing that because the courts of equity are a creation of congress that any cause of action arising out of them are statutorily created. Frankly, that’s absurd (if that was true what function does “statutorily created” have?). But from a structural point of view it’s not implausible to think that for derivative constitutional claims, i.e., constitutional claims that arise because a statutory constraint is violated, that the zone of interests test still applies and that zone of interests is determined by those specified in the statute. Indeed, if one accepts the principle behind the zone of interests tests it seems like it applies just as strongly here (though if you, like me, don’t one would want to limit it’s application).

I’d note that the government’s argument that the transfer of funds here was legal is just absurd. It relies on a technical distinction between the budget item in the DoD and the funding of the very same project via DHS (which congress denied). That’s ridiculous and would let the president fund absolutely anything just by changing the names or agencies under which it was funded.

  1. I mean why can’t the competing business in Tax Analysts just allege that issuing their competitors a refund (after estimated tax payments) based on this interpretation is an expenditure without congressional authorization or just generally rely on the fact that the constitution vests legislative authority with congress to challenge any contrary administrative ruling. 
  2. Specifically, in Dalton the president’s only power was to either accept in whole or reject in whole a proposal by a commission on what military bases to close and the plaintiffs alleged the commission’s proposal was crafted in violation of law. I can’t see how the fact that the president ultimately had to approve or reject is relevant to the standing. 
  3. To steelman the argument as best I can consider this. Imagine the Trump admin had refused to say on what exact pieces of land it was planning to build the wall on before transfering the money. In that case the plaintiffs could surely not claim injury when the transfer happened (the mere fact that the government might do something isn’t enough) and surely standing can’t turn on what you believe the government plans to do with the money. However, I’d respond that in this case if the defendants would (if they otherwise would have had standing) gain standing when that money was spent (or about to be spent) in a way that injured them. 

Effects Of Internet Dating

Everyone talks about social media increasing polarization. I wonder if our ability to pre-screen our romantic partners has something to do with it as well. We can now ensure we don’t ever have to date people we don’t want to.

How Couples Met By Year

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Benefits Of Hypersonic Missles

Not All Fancy New Killing Machines Are Bad

I don’t understand why all the press about hypersonic missiles has only focused on their risks. Some risks are real but there are also strategic benefits and it irks me that it seems like the media is just reasoning based on their gut level feeling that a new fancy weapon must be bad. I’m sure experts have considered both costs and benefits and I’d love to see them but articles that don’t even stop to refute potential benefits irk me. Much like tech workers who refuse to work on military applications on principal rather than weighing the pros and cons of helping the US acquire that particular tech.

  1. Despite claims that they undermine deterrence it seems to me the exact opposite is true for the major nuclear powers. If anti-ICBM defenses destabilize deterrence it stands to reason tech which can’t be defended against could improve deterrence.
  2. The expense and technical difficulty of hypersonic weapons means that only the major powers will likely be able to build them. So now we get the best of bost worlds in that we can build out full anti-ICBM tech to reduce the danger of attacks from rogue nations like NK (unlikely to be able to afford a massive barrage or a huge number of decoys) without undermining the balance of nuclear deterrence with the other major powers. Indeed, the sheer speed of hypersonic weapons offers the tantalizing possibility of anti-ICBM weapons that could impact during boost phase provided they were stationed nearby (e.g. in SK).
  3. These missiles don’t force decisions about counterattack to be made within the short window before striking since the major powers can still counterstrike with missles housed safely on nuclear subs, hidden in silos in their vast empty fields and scrambled to wait in the air. Using hypersonic weapons as second strike weapons ensures that a relatively small number of nukes scattered on subs, scrambled into the air or placed in a few of our minutemen silos provide an effective MAD style deterrence against great powers.
  4. The fact that hypersonic missiles potentially render aircraft carriers and other capital ships useless isn’t all bad. China inevitably will develop its own aircraft carriers if they remain useful meaning both countries will spend massive amounts of money to remain on par. Far better if we remained on par without the capital ships given that whenever we need to project airpower against distant weaker states (e.g. UN approved bombings etc..) we can use the hypersonic missiles to project power. It potentially harms our strategic position re: russia but it’s not totally obvious to me if it’s a net harm or benefit.

Hypersonic Missiles Are Unstoppable. And They’re Starting a New Global Arms Race.

At War The new weapons – which could travel at more than 15 times the speed of sound with terrifying accuracy – threaten to change the nature of warfare. A Mach 14 Waverider glide vehicle, which takes its name from its ability to generate high lift and ride on its own shock waves.