In a recent article in The Nation, Jon Wiener of UC Irvine writes about historians who have worked as expert witnesses or researchers on behalf of Big Tobacco. It’s an interesting piece, I think, not least because it suggests that souls don’t come cheap the expert-witnessing business is lucrative: Kenneth Ludmerer, a historian of medicine at Washington University in St. Louis, apparently made more than $500,000 working for tobacco companies. That’s real money!
But there’s a catch (there always is, right?): it’s a contentious business. Ludmerer and other scholars who have worked on Big Tobacco’s side during litigation claim that they’ve been harassed because of their efforts. Ludmerer asks:
Where is civility in this country? These ad hominem attacks are injurious. I had coronary artery bypass surgery in 2005. I’m sure a lot of the disease came from tension from the comments people made about my testimony. I’ve never done anything other than serve the public interest.
Ludmerer then insists that he can have his cake and it too although he worked for the tobacco industry, he really hoped the corporations would lose. So “why”, Wiener asks, “did he testify for the industry?” Because Ludmerer “considered it honorable to stand up for doing history properly.” Heroic!
Anyway, after reading Wiener’s article, I found myself (entirely predictably) sympathizing with the author. Sure, I like money, but I’m reasonably* confident I wouldn’t sell my services to Big Tobacco, the NRA, or other corporate lobbying organizations whose politics I find deplorable. At the same time, it seems possible, based on the evidence Wiener presents, that historians working on behalf of the tobacco companies have set aside professional norms in service of a payday. Still, I do enjoy the sophisticated taste of Parliaments! And I feel like more of a man when I smoke Marlboros! Please send me a check, Mr. Philip Morris!
But after reading an exchange of letters between Wiener and Matthew Gallman, a historian at The University of Florida, published in The Nation the week after Wiener’s article appeared, I started questioning my initial reaction.
Gallman raises what seem to be reasonable concerns about the way that Wiener depicts the actions of graduate students in the history department at the University of Florida, where Gallman directed the graduate program during the period in question. Wiener replies with drama. First, he notes that smoking kills lots of people every year. Next, he intimates that historians who work with Big Tobacco may have blood on their hands. And then he insists that Gallman, by raising the issue of the graduate students at the University of Florida, is getting worked up about “a footnote to a footnote.” Maybe. But that’s not the point.
Gallman is making two claims: that Wiener plays fast and loose with evidence (the very same charge that Wiener levels at historians working for the tobacco industry), and that there are power dynamics at play here, as the UF graduate students were worried about being outed for the work they had done. Wiener replies to this by noting that the students had the opportunity to speak on their own behalf but chose not to. I have to say, that doesn’t surprise me, and it shouldn’t surprise Wiener either. Again, these are graduate students who would prefer to remain anonymous. They’re worried about the consequences of their actions. And maybe they should be. But absent a clearer sense of their motives, and also of how much they knew about the job when they took it, it’s very hard for me to judge. And furthermore, I wonder if the ethics of working for Big Tobacco are different for graduate students making $25/hour than for faculty making as much as $500/hour. I’m guessing they are. But I’m not a philosopher, so I should be careful about what I say.
* Note: not entirely confident. After all, I’m quite greedy.
88 comments
March 16, 2010 at 4:35 pm
kid bitzer
i liked this post it was good at the beginning because i hated mr. ludmerer and i knew who to hate so i liked it but then it got more longer and complicated and there were nuances and other things and i didn’t know who to hate and then i didn’t like it anymore once it had nuances in it.
March 16, 2010 at 4:37 pm
politicalfootball
Haven’t read the links, but if you’re going to do history on behalf of tobacco companies, you risk being exposed as someone who does history on behalf of tobacco companies.
One can imagine all sorts of tragic circumstances that would lead someone to do such a thing. (My mom had lung cancer and I needed to pay for chemo!) But the validity of Wiener’s article seems to depend on the accuracy with which he portrayed the work that was being done.
Now I’ll go read the links.
March 16, 2010 at 4:37 pm
politicalfootball
I see that kb anticipated my objection.
March 16, 2010 at 5:18 pm
Robert Halford
Historians are such pikers when it comes to this game. Look up the apartment that the former Dean of the University of Chicago Law School was able to buy as a result of serving as an expert witness — almost exclusively on the side of major corporations in litigation resulting from significant scandals.
To rant about a subject that no one here but me probably cares about, I’ve never really understood why Lexecon and other private expert witness firms haven’t caused more of a scandal in the law schools. I mean, you had a huge chunk of the private law faculty of the University of Chicago — probably the most prestigious faculty for such subjects, and a faculty that heavily influenced the teaching of libertarian-influenced law and economics to students are — literally earning 90% of their income from shilling for corporations accused of wrongdoing. It’s a conflict of interest of epic proportions.
March 16, 2010 at 5:42 pm
Chris Johnson
I was sorry to read this because Ludmerer has done some excellent work on the history of medical education in America, particularly his Learning to Heal. Oh well. Even schnooks can do good history. But for a physician-historian to do this — yikes. On the other hand, I was glad to read in the linked article about Alan Brandt’s role in this. I respect his work a great deal.
March 16, 2010 at 5:54 pm
ari
Sorry for the nuance, kb. You should adopt my strategy: hate everyone.
March 16, 2010 at 6:18 pm
Ben Alpers
Us historians would rather fight than switch!
March 16, 2010 at 6:33 pm
PorJ
Doesn’t Jon Wiener continue to defend the work of Michael Bellesiles – specifically: Bellesiles’s non-existent archival research (Wiener said Bellesiles was “sloppy” without engaging the question of the records Bellesiles claimed to consult that were destroyed in the 1906 San Francisco fire)?
And he’s pretending to be an ethicist here?
Did I miss something?
March 16, 2010 at 6:45 pm
ben
I’ve never really understood why Lexecon and other private expert witness firms haven’t caused more of a scandal in the law schools
Law schools are filled with law students.
March 16, 2010 at 6:57 pm
politicalfootball
Having read the links, I really have to stand up for the un-nuanced view here. Gallman is an unambiguous bureaucratic prick trying to falsely impugn Proctor and Wiener.
Proctor, remember, was accused of witness-tampering. Gallman, while not having the balls to say it straight out, tries to suggest that Proctor was guilty. Referring to Smocovitis, he says:
Leave aside Gallman’s concern for the department rather than for the students. Leave aside the fact that Smocovitis, as portrayed by Wiener, doesn’t agree that Proctor was trying to pressure these students. Leave aside that Gallman provides no actual evidence that Proctor was trying to pressure the students.
Let’s just consider Gallman’s own testimony:
So in the end, Gallman seems to agree here that there was no factual basis for the tobacco companies’ claims. What’s his gripe?
Here’s Gallman’s description of Wiener’s article:
Nonsense. This is simply a misrepresentation of the article. The Florida students were only brought up in the context of the bullshit allegations against Proctor – allegations, remember, that even Gallman can’t find any support for.
And look at this part of the quote:
<blockquote "First, Wiener mentions the research done by UF graduate students and then immediately quotes a … student … who describes how she had been instructed to engage in unprofessional research
If by “immediately” Gallman means “in the same article,” then I guess this is true. But if you look at the actual words that Wiener wrote, there’s a considerable distance between the discussion of Florida and the discussion of the other student. And the discussion of the Florida students took place only in the context of the false charges against Proctor.
Sorry, I just can’t find the nuance. Maybe we should sympathize with poor graduate students compelled to work for disreputable companies – I certainly won’t vouch for everybody I’ve ever worked for – but there’s no evidence that Wiener or Proctor subjected these students to any undue attention whatsoever. How can Wiener possible talk about bogus witness-tampering charges without mentioning the witnesses?
March 16, 2010 at 10:21 pm
AYY
“I’m reasonably* confident I wouldn’t sell my services to Big Tobacco, the NRA, or other corporate lobbying organizations whose politics I find deplorable.”
I get the part about Big Tobacco (after all wasn’t Duke University built on tobacco money), but what’s with the knock against the NRA? If it wasn’t for them only criminals would have guns.
As for corporate lobbying organizations with deplorable politics, I think, but I don’t know, but I think that might have been what KB was referring to when he talked about nuances and making things more complicated. Corporate issues are nuanced and complicated, and if corporations lose too much money people lose jobs and the community loses services, so maybe that’s what he meant–the jobs and the services. I don’t know if he meant that-maybe he didn’t-but he could have meant that.
March 17, 2010 at 12:47 am
dave
And hey, it’s Morning in America! (TM)
March 17, 2010 at 1:08 am
kid bitzer
dear ayy please do not put nuances into my comment it did not have any and i do not like nuances but i like ari because he told me to hate everybody so i will because i like ari but not nuances.
you should not of said what you said about my question it was just the same old question and why are people always trying to find nuances to old questions?
March 17, 2010 at 1:23 am
Walt
Dude, don’t listen to kb. Whenever I go down to the corner to pick up a dime bag of nuance, it’s always kb who glides out of the shadows to hook me up.
March 17, 2010 at 5:53 am
ari
AYY, take a look at the post. It says “corporate lobbying organizations whose politics I find deplorable”. I think that allows me plenty of opportunity to wonder at the majesty of corporate America’s nauances. For example, I just took a gig with the asbestos manufacturers, who provide a critical public service.
March 17, 2010 at 6:20 am
kid bitzer
the latest data on asbestos workers from the depression era shows conclusively that even if they had not been exposed to asbestos most of those people would have died anyhow by now.
“oh i have mesothelioma,” people whine, “oh i have millions of fibers wrapped around my lungs and they prevent me from breathing.” whine whine whine, and not a word of gratitude to johns manville for keeping them safe from spontaneous lung combustion.
March 17, 2010 at 7:46 am
elizardbreath
I can’t speak to the specifics of this case, but I have some sympathy for academics working for Big Tobacco generally. Those who know me will remember that I used to be a cog in the Big Tobacco litigation machine, and may remember me talking about how weak, legally, most of the current cases against Big Tobacco are IMO. Even though Big Tobacco is evil, the sort of disclosure of the risks of smoking that’s been imposed on them since 1964 would, in any non-tobacco context, be enough to get them out of fraud-based liability for those risks.
Which meant, in at least the case I was working on, that the experts working for Big Tobacco could be pretty straightforwardly honest (that honesty was supporting the interests of bad people, and was for a great deal of money, of course. So still morally questionable. But we didn’t need them to lie). And the experts on the other side, because they were trying to establish a very legally difficult case, had to push their facts a great deal harder, to the point where they were doing what looked like very questionable scholarly work to me.
But of course my experience with this comes from being paid by one side, so I’m hardly an honest broker myself.
March 17, 2010 at 12:11 pm
politicalfootball
Even though Big Tobacco is evil, the sort of disclosure of the risks of smoking that’s been imposed on them since 1964 would, in any non-tobacco context, be enough to get them out of fraud-based liability for those risks.
On what basis did plaintiffs get their victories? Product liability?
It’s interesting that fraud isn’t actionable in this instance. I know a lot of smokers who bought the Tobacco Institute line – and the fact that the tobacco companies went to some trouble and expense to put out such a line indicated that they expected people to buy it. Do mixed messages prevent a finding of fraud, as long as some of those messages aren’t fraudulent?
And what about addiction? Surely the tobacco companies didn’t start telling the truth about that until very late in the game. Isn’t that fraud?
March 17, 2010 at 12:12 pm
politicalfootball
Also: Thank You For Smoking was a really good movie.
March 17, 2010 at 12:36 pm
Phantom Scribbler
Coming out of lurkdom as someone with personal ties to one of the (successful) cases mentioned in that article. In general, plaintiffs got their victories because Big Tobacco has a long history of trying to suppress research that would damage them (just like the article describes, right), and that sort of slightly undermines their argument that the risks have been fully disclosed since 1964. (I personally know of at least a half-dozen academics who have been similarly threatened with harassing subpoenas and/or political pressure to cut their research funding if they agreed to testify against the tobacco industry. Those days are mostly over now in health fields — Big Tobacco has given up trying to dispute the science. But historians are, er, a little behind the times, I guess.)
March 17, 2010 at 1:09 pm
Elliott
On his own initiative, Proctor emails a professional acquittance – Smocovitis – working at the University of Florida, informing her “that grad students in the history department ‘have been working quite intensively for the tobacco industry.'” After Smocovitis responds, Proctor sends along the names of not only the grad students but also their advisors, writing “this is historical malpractice, and I would be very interested to know if the advisers of these students know what they have been doing.” In a later email, Proctor believes Smocovitis should bring up this issue at the next faculty meeting, suggesting she ask her colleagues if they think it is appropriate “for graduate students to be working secretly for the tobacco industry.”1
That is not the harmless email exchange Weiner makes it out to be. Proctor thought these grad students were behaving unethically, and he decided to take unilateral action (informing Smocovitis) in hopes that the students would be pressured into halting their research.
Yes, Big Tobacco buys historians. Yes, they wage a tireless campaign against historians who oppose them. But Weiner is wrong when he writes that the grad student issue is “a footnote to a footnote.” It’s very much at the heart of the issue Weiner is writing about – academic integrity.
1 Schmidt, Peter. “Big Tobacco Strikes Back at Historian in Court.” The Chronicle of Higher Education, November 13, 2009. On A10, available here.
March 17, 2010 at 1:37 pm
bitchphd
1. “Thank you for Smoking” was a terrible movie.
2. Of the two, I would *far* rather work for Big Tobacco than for the NRA. Indeed, I can say with confidence that I would rather prostitute myself than work for the NRA.
3. Even with full honesty about addiction and the health problems of smoking, I imagine there will always be a market for tobacco–even if advertising it were banned (which it should be). It is, after all, a drug that has mild and pleasant short-term effects (as well as unpleasant ones) and that, popular belief and popular brands to the contrary, can actually taste/smell lovely. Given that the major health problems are long-term ones, and that addiction takes a while to set in (and once it has done, it’s too late), I really don’t think that tobacco producers/sellers need to be fradulent simply to sell product. I would guess the reasons they are anyway are the desire to make it a mass market product (i.e., to sell tons and tons rather than just a little bit) and to avoid liability, no?
March 17, 2010 at 7:06 pm
ac
Not sure if it comes up in the piece, but Robert H. Frank of Cornell has a bit about the economics of testifying for tobacco companies in his article on unselfish motives in economic behavior. Basically, the fact that the public interest witnesses do it for free tells you all you need to know about the ethics of the situation. Frank is analyzing the “reservation pay premium” for doing unethical work.
March 17, 2010 at 8:03 pm
AYY
“I just took a gig with the asbestos manufacturers, who provide a critical public service.”
Ari, that’s a line I don’t cross. If a company tries to hook little children with asbestos candies or teenagers with Joe Asbestos ads, I don’t want any part of it.
March 18, 2010 at 5:38 am
Fanny Najef-Yoga
public interest witnesses do it for free tells
My car now sports a new bumper sticker.
March 18, 2010 at 5:39 am
Fanny Najef-Yoga
…which does not contain the word “tells.” Stupid cut-and-paste.
March 18, 2010 at 5:54 am
politicalfootball
After Smocovitis responds,
Elliott, it’s interesting what you’re eliding here. Smocovitis according to the article, said she was “shocked” to find out about this, and she specifically requested more information before Proctor provided the names.
That is not the harmless email exchange Weiner makes it out to be. Proctor thought these grad students were behaving unethically, and he decided to take unilateral action (informing Smocovitis) in hopes that the students would be pressured into halting their research.
The question is: Is there a legitimate ethical issue involved here. It seems to me that there is. Why should Proctor have not brought that up?
March 18, 2010 at 6:20 am
Walt
I’m with pf.
March 18, 2010 at 7:04 am
Ben Alpers
It seems to me there are a number of ethical issues here. Beyond simply what our ethical responsibilities are as historians, what are our ethical responsibilities for helping our graduate students in making decisions about such things?
I certainly don’t think that professors ought to substitute our ethical judgment for our students’ own. But at least in my graduate program there was absolutely no formal instruction or discussion about how one might approach these issues. Not only are the professional norms here potentially murky, but I don’t think we do a great job communicating what norms there are to the next generations of professional historians.
(I apologize if this comment seems blindingly obvious….I’m still on my first cup of coffee and I can be that way in the morning!)
March 18, 2010 at 10:08 am
silbey
I was bothered (in my post on Wiener’s article: it’s JW week here at the Edge!) by the historians who testified in service of the tobacco industry *even though they had no particular expertise in that history.* Stephen Ambrose should no more be testifying about smoking in American culture in the 20th century than I should.
March 18, 2010 at 10:58 am
elizardbreath
On what basis did plaintiffs get their victories? Product liability?
It would depend on the individual case, and I can’t speak for all of them. There are a fair number of cases I’m aware of where liability would have been unlikely with similar facts but a non-tobacco defendant — both judges and juries have a tendency to bend the facts and the law to punish those who obviously deserve it.
Older cases, where the plaintiffs started smoking and became addicted before 1964, are much more legally reasonable. But given the lapse of time, there aren’t many of those left to bring.
March 18, 2010 at 11:03 am
elizardbreath
Basically, the fact that the public interest witnesses do it for free tells you all you need to know about the ethics of the situation.
Well, it tells you that public interest witnesses think they’re doing the right thing by lining up against Big Tobacco. In cases where, despite the manifest evil of Big Tobacco in general, the theory of the case against them is fundamentally flawed, you can get an ethical conflict between two goods: damaging Big Tobacco, and putting forth straightforwardly accurate scholarship. An expert opinion that is, in the expert’s belief, a good thing to do, is not by that sincere belief necessarily good scholarship.
March 18, 2010 at 11:10 am
ari
LB, what say you wrt to the well-organized disinformation campaign that Big Tobacco used post ’64? I honestly have no way of gauging whether such a thing should have an impact on legal outcomes — as a matter of law I mean.
March 18, 2010 at 11:11 am
elizardbreath
(I’m dragging into these comments a year’s worth of irritation at an anti-tobacco expert witness with a very high public profile on lots of great liberal issues — someone who I thought very well of before this encounter. And the historical/economic expert opinion he submitted was absolute crap, and at deposition it came out that he hadn’t read most of the documents it was based on, and hardly seemed to have read the opinion he ‘wrote’ at all. But I’m sure he thought he did a good thing by letting plaintiffs’ counsel slap his name on a load of nonsense he didn’t write, and maybe, when you net it out, the good of damaging the tobacco companies really is greater than the evil of doing bad academic work.
And maybe he was really unusual. I’m just pissed at him because I see him in the news being on my side of a bunch of political issues, and I have to think of him as lacking any academic principles, rather than being able to approve of him.)
March 18, 2010 at 11:25 am
elizardbreath
what say you wrt to the well-organized disinformation campaign that Big Tobacco used post ‘64?
Generally, for fraud liability (and this is very, very general, and not guaranteed good in all contexts or in all fifty states, but it’s the basis of what I’m saying), you need a misrepresentation that brought about the damages and that plaintiff was reasonably entitled to rely on. And generally, if a product bears a label saying that it’ll kill you, you’re not entitled to rely on a representation that it won’t.
And on the well-organized disinformation campaign — it was real, and despicable. But it didn’t involve a whole lot of actual lying, which you mostly need for fraud. The tobacco companies knew from 64 on that they would get in massive trouble if they made any affirmative claims that cigarettes generally, or their cigarettes specifically, didn’t cause health problems (or caused less health problems). And so they didn’t. The disinformation campaign was about sponsoring research suggesting that there was some doubt about the cancer link, which, you know, there’s some doubt about everything. And about not coming out and affirmatively saying that we, the tobacco companies, know that cigarettes are addictive and cause cancer. But there’s not much at all post ’64 that a smoker could point to and say “the tobacco companies said X, and because I believed them I believed smoking was safe.”
March 18, 2010 at 11:41 am
andrew
This seems to be one of those cases where the phrase “the scandal isn’t what’s illegal, it’s what’s legal” applies.
March 18, 2010 at 12:12 pm
LizardBreath
Well, yeah. There’s a good argument that the US should have banned the sale of tobacco back in 1964, when they decided that it was killing people for sure. Once selling a mildly pleasurable and highly addictive drug that’ll kill you is legal, that’s most of the problem right there.
March 18, 2010 at 12:48 pm
Elliott
PF, I wasn’t trying to elide anything – I thought I was being honest in my depiction of what happened. Proctor didn’t originally provide the names, but did so after the “shocked” Smocovitis responded to him. I apologize for any perceived error of omission – I really wasn’t trying to tailor evidence to fit my argument, honest!
The question is: Is there a legitimate ethical issue involved here. It seems to me that there is. Why should Proctor have not brought that up?
We are agreed to disagree then, it appears. I’m not convinced that the hired graduate students were behaving unethically. I think the example of Pfleger and her professor at UC Irvine was unethical. But I think Proctor very much overstates his case when he claims that the grad students at UF were “committing historical malpractice.” The grad students in question aren’t in the direct employ of the Tobacco Industry – they’ve been hired by a historian to do archival research. Gallman claims – and I grant, he is in no way an neutral participant in this – that the students were given no unethical instructions by Michel and were told “not to make any decisions about whether the stories supported or contradicted the arguments made by Big Tobacco.” (The question of whether Michel is behaving unethically is a completely different matter. But the sloppiness or unethicalness of an advisor/professor does not necessarily reflect on the grad students working for them – especially when those students are acting at a distance.)
What this is avoiding, though, is the two-fold question of what Proctor intended by initiating this email, and why he did it. The latter question appears self-evident – he was acting out against perceived unethical behavior. That’s understandable and admirable.
The clinch for me is what Proctor thought would be a consequence of his actions. He wanted those grad students to stop their research and for members of the department to apply pressure to that effect. Put another way, he wanted to cause a ruckus, and he wanted to get those grad students in trouble. As Ari rightly pointed out, power dynamics is very much at play here.
March 18, 2010 at 1:04 pm
elizardbreath
Is there a legitimate ethical issue involved here. It seems to me that there is.
I am wildly embarrassed being the defender of Big Tobacco here, particularly because I took their money for a couple of years.
But I’m not clear what the ethical issue is. Is it always unethical for an academic to provide a truthful, accurate expert opinion for Big Tobacco simply because of all the harm they do, or for a subordinate academic to do academically sound research that will ultimately support an expert opinion for Big Tobacco? Or are you assuming academic misconduct on the part of the grad students, and that’s where the ethical issue comes in?
March 18, 2010 at 1:55 pm
politicalfootball
I am wildly embarrassed being the defender of Big Tobacco here, particularly because I took their money for a couple of years.
I can’t think of a better reason to defend Big Tobacco.
I think the ethical issue is: should historians knowingly work for people who are going to distort their work.
Is it okay for a historian to do historical research for Holocaust deniers – even if that research is done honestly, and presented honestly to the deniers? I think not, though I’m not sure what the proper role of a university is in enforcing this kind of ethics.
Here’s an oddly analogous case.
March 18, 2010 at 2:07 pm
elizardbreath
should historians knowingly work for people who are going to distort their work.
And they know their work is going to be distorted because? I’m serious about what I said above — Yes, selling cigarettes is evil even if all the risks are disclosed, I’m not claiming that Big Tobacco isn’t evil, they’re evil, I worked for evil people. But leaving their generic evil to one side, on a lot of these cases they are, or should be, legally pretty safe without telling any lies about happened.
Would it be ethically okay for a historian to work for Big Tobacco if they didn’t know their work was going to be distorted? If they were pretty sure it wouldn’t be?
March 18, 2010 at 3:01 pm
silbey
And they know their work is going to be distorted because?
Because the tobacco companies are not making a historical argument in the court room, they are making a legal argument, and that requires the lawyers to argue one side to the exclusion of all else.
March 18, 2010 at 3:52 pm
ac
public interest witnesses think they’re doing the right thing by lining up against Big Tobacco
What Frank is getting at was that if it’s about good scholarship, then the witnesses for Big Tobacco wouldn’t need to be paid quite so much. It’s in the context of a study of what people feel they need in compensation for doing bad things. Salaries being the same, people (or at least the Cornell students he was studying) overwhelmingly choose to work for organizations they view as ethical. They require x amount above that base salary in order to work for Bad Company—in the paired companies he was using, the average ran about 40K. When there’s a huge huge disparity, in this case people who testify for free versus people who are making 500K, there’s the very great possibility that paid people feel they require the huge sum in order to overcome their own sense that what they are doing is wrong. Compensation that big is, in this sense, a bribe to one’s own conscience.
He also generally found that companies tend to lie about what it is that they’re compensating *for.* Most of the Cornell recruiters, for example, say they are rewarding high GPAs. But if you look at the group hired to work for perceived “bad” companies, their GPAs are lower than the sample average. Similarly, tobacco companies lie about hiring the best scholars; most people who testify for them have notably lesser credentials than those testifying against. The lies are consistent with the bribery to conscience reading.
March 18, 2010 at 4:10 pm
matt w
there’s some doubt about everything
If anyone wants an expert witness to testify that this fact has no bearing on anything whatsoever, I would happily offer my services gratis. And I’d be qualified to do so.
(If you want someone to testify that “There’s some doubt about every scientific conclusion” has no bearing on anything, you should probably go for a philosopher of science, though.)
March 18, 2010 at 4:36 pm
kid bitzer
oh sure, you’d would be happy to testify that the fact that there’s some doubt about everything has no bearing on anything.
but could you dispel the jurors’ doubts about your testimony?
meanwhile, you could use your expertise to explain why “legally, you may kill millions of people” may not entail, “ethically, you may enable others to kill millions of people, so long as you earn a lot of money doing so”?
there seems to be some doubt about this matter on this thread.
March 18, 2010 at 5:33 pm
LizardBreath
Silbey- I’m sure you realize this, but that’s not an argument that being an expert witness for tobacco companies is wrong, that’s an argument that being an expert witness at all is wrong.
Ac- the problem with that argument is that you can’t distinguish between the financial premium required to convince someone to violate their ethical standards by doing bad scholarship, and the financial premium required to convince someone to violate their ethical standards by doing good scholarship for people they regard as morally in the wrong. All the financial premium tells us is that tobacco companies are pariahs, who need to pay extra to get anyone to work for them.
March 18, 2010 at 5:53 pm
big bad wolf
as a lawyer, not a historian, i wonder, genuinely and in good-faith, what argument means in “historical argument.” i suspect that historical arguments may be somewhat purer than legal argument, but i doubt, if they are arguments, that they are free of, at least unconscious or subconscious, biases, and thus think that they too may suffer from “distort[ion],” in the non-pejorative sense. perhaps “argument” in historical argument is a term of art that i am not comprehending.
March 18, 2010 at 6:40 pm
Josh
All the financial premium tells us is that tobacco companies are pariahs, who need to pay extra to get anyone to work for them.
Or that the expert witnesses recognize that the tobacco companies have deep pockets and are taking them for all they’re worth.
March 18, 2010 at 7:56 pm
JPool
LB: And generally, if a product bears a label saying that it’ll kill you, you’re not entitled to rely on a representation that it won’t.
Except the label has never said this. From 1966 to 1970 it said that smoking may be hazaardous to you health, from 1970 to 1984 that the Surgeon General had determined that smoking is hazaardous, and only since 1985 the current rotating warnings about specific diseases, pregnancy, carbon monoxide and that it’s healthier if you don’t smoke. In the next year the warnings will get much bigger and somehow involve pictures, but they’ve never been as plain as “this will kill you.” That may sound nitpicky, but up to 1985, at least, it really seemed to be “Well the surgeon general says that cigarettes are bad for you, but other scientists say different, so who knows.”
March 19, 2010 at 4:00 am
elizardbreath
Yes, that was hyperbolically phrased. And of course “This will kill you” would be wrong as well — plenty of smokers die old of other things. But the difference between “this will kill you” and “The Surgeon General says,” and all the other public information about smoking, doesn’t actually make a difference to the argument I was making.
March 19, 2010 at 4:40 am
silbey
Silbey- I’m sure you realize this, but that’s not an argument that being an expert witness for tobacco companies is wrong, that’s an argument that being an expert witness at all is wrong
Yep.
i suspect that historical arguments may be somewhat purer than legal argument, but i doubt, if they are arguments, that they are free of, at least unconscious or subconscious, biases, and thus think that they too may suffer from “distort[ion],” in the non-pejorative sense. perhaps “argument” in historical argument is a term of art that i am not comprehending.
I don’t think that I claimed that historical arguments were “purer” or that they were free of bias. But a good historical argument should allow for, admit to, and analyze contradictory arguments and evidence. It should also be ambivalent about itself and allow for the possibility that it is, in fact, wrong (apparently, historical arguments are quite self-aware…).
March 19, 2010 at 5:34 am
Walt
Like SkyNet.
March 19, 2010 at 6:05 am
silbey
Like SkyNet.
Arnold Schwarzenegger in Terminator V: The Department Meeting
March 19, 2010 at 8:04 am
big bad wolf
silbey, you didn’t claim it, but it seems implied by the use of distort and to the exclusion of all else. the former is true in that the selective use of parts of the history will be used in the legal argument, and so the historical argument will not retain its original shape; that is, it will be distorted in the denotative sense.
but i am not at all sure that it is true to say the legal argument is entirely one-sided. this is so for a couple of reasons. the first, perhaps more aspirational than real in some cases, is that professional ethics prevent a lawyer from misrepresenting things, as opposed to focusing attention on those parts of the record that are helpful to the client. the second is practical. people are not going to be persuaded if the argument insists that everything that falls on one side. good legal arguments need to address contradictory evidence and arguments—doing so makes the argument advanced appear more fully thought out and usually more persuasive. so, i guess the main difference is that a historical argument could admit it might be wrong, which a legal argument can never do on professional ethical grounds. the ethic being to make the best argument possible, which, i think, is different from an exclusive or one-sided argument. the best argument might still be rather weak, but it’s weakness must be found by others, not admitted. thanks for helping me think this through
March 19, 2010 at 10:20 am
Robert Halford
I don’t really want to get into this in detail, but most of the big tobacco related cases weren’t really about whether or not a plaintiff could show common law fraud — products liability under various theories or deceptive advertising or violations of various consumer protection statutes were much more common. And, in the majority of cases, there really wasn’t much a tobacco company could do about hiding behind the surgeon general’s warning. LB, who I love, is kind of cherry-picking one of the worst arguments that plaintiffs’ lawyers had and using that to justify the decision of the experts to represent the tobacco companies.
I don’t think there’s any real question that almost all expert testimony, on any side, in the litigation context is always a distortion of “pure” academic work. That’s part of the adversarial system that we have in the US.
March 19, 2010 at 10:24 am
Robert Halford
Of course, just because expert testimony distorts pure academic work doesn’t mean that it’s false or misleading or even inaccurate. And only a really lousy expert witness will fail to understand and address contrary facts and evidence. But the objects of an academic and of a party-selected expert witness in litigation are inherently different, which means that it’s a different kind of work.
March 19, 2010 at 10:56 am
Barry
Chris Johnson:
“To rant about a subject that no one here but me probably cares about, I’ve never really understood why Lexecon and other private expert witness firms haven’t caused more of a scandal in the law schools. I mean, you had a huge chunk of the private law faculty of the University of Chicago — probably the most prestigious faculty for such subjects, and a faculty that heavily influenced the teaching of libertarian-influenced law and economics to students are — literally earning 90% of their income from shilling for corporations accused of wrongdoing. It’s a conflict of interest of epic proportions.”
Or, it’s living down to the standards of the elite law professors. Which standards, I believe, have been heavily influenced by U Chic.
March 19, 2010 at 11:00 am
elizardbreath
Damn, I do apologize if I mistakenly gave the impression that I was claiming that all cases against big tobacco were legally flawed, rather than that there was a significant subset of such cases.
But the point I was making in the context of this thread was that you can’t go from the statement “Big Tobacco wants to hire you, a historian, as an expert witness” to “They’re going to demand that you commit academic misconduct” with any kind of certainty.
March 19, 2010 at 11:05 am
Barry
(not sure whom, due to the f*cked up formatting of this site):
“Even though Big Tobacco is evil, the sort of disclosure of the risks of smoking that’s been imposed on them since 1964 would, in any non-tobacco context, be enough to get them out of fraud-based liability for those risks.”
That’s odd; when did Big Tobacco cease their decades-long, well-funded efforts to suppress research and commit fraud by sponsoring and disseminating false research?
That’s assuming that they have, of course.
March 19, 2010 at 11:30 am
Robert Halford
you can’t go from the statement “Big Tobacco wants to hire you, a historian, as an expert witness” to “They’re going to demand that you commit academic misconduct” with any kind of certainty.
I agree with that as stated, but you definitely can go from “Big Tobacco wants to hire you, a historian, as an expert witness” to “you will be distorting and avoiding your purely academic work, on behalf of a truly evil entity, in exchange for a bunch of money.”
March 19, 2010 at 11:37 am
elizardbreath
Barry: That’s me, LizardBreath, that you quoted. Again, the tobacco companies suck, and do the best they can to market products that kill people. That said:
There really wasn’t much the tobacco companies could do to literally suppress research. From, call it 1964, the date of the first Surgeon General’s Report, it was well accepted in mainstream medical science that tobacco caused lung cancer and a host of other bad effects. At that point, the cat was out of the bag — whatever the tobacco companies tried to do (and having tried makes them morally corrupt certainly), they simply didn’t have any way of ‘suppressing’ that research. Their efforts to argue against the mainstream research just didn’t have much of an effect on the medical consensus. I mean, what research are you talking about that got suppressed and for how long?
And “sponsoring and disseminating false research” — certainly, they shoveled cash at any crackpot with a theory that tobacco was harmless, and certainly this was a bad thing to do. But again, it’s hard to come up with much in the way of results they got out of it.
March 19, 2010 at 11:40 am
elizardbreath
I agree with that as stated, but you definitely can go from “Big Tobacco wants to hire you, a historian, as an expert witness” to “you will be distorting and avoiding your purely academic work, on behalf of a truly evil entity, in exchange for a bunch of money.”
As I understand this, you’re saying that it’s per se unethical for an academic to act as a paid expert witness for bad people, whether or not the work they do as an expert involves any specifically academic misconduct. I can see that as a rule of conduct, and I think it’s the one that people are applying — mostly, I just wanted to get it clearly stated.
March 19, 2010 at 12:57 pm
Robert Halford
I wouldn’t say per se unethical. I was really just agreeing with Silbey that one’s work as an academic will almost inevitably be somewhat distorted by serving as an expert witness — which doesn’t mean that the academic will be lying, or committing actionable academic misconduct.
I also don’t want to suggest that, in general, academics who serve as expert witnesses aren’t providing a valuable service — they often are, and I think juries are better off deciding cases based on expert testimony. But an academic expert who chooses to accept an assignment is doing something more than just reiterating her academic work to a different audience; she is taking on a different job, with different responsibilities and obligations than a professor has. A cynical and perhaps overly pejorative, but I believe accurate, way of putting this is to say that serving as an expert witness distorts academic work. But that’s just how it is — a courtroom isn’t a lecture hall or a professional journal.
In the context of the tobacco cases, I think that this means that academics who represented the companies do have to own up for the fact that they chose to work on behalf of a fairly evil client, for evil purposes, for money. The excuse of “I was just doing good history” really doesn’t cut it.
(Perhaps there are some experts who decided to provide their factual testimony out of the goodness of their hearts, in order to stand up for the inalienable rights of even unpopular corporations to invoke obscure common law defenses — but I doubt it.)
March 19, 2010 at 1:21 pm
elizardbreath
obscure common law defenses
Having to show reasonable reliance on a misrepresentation is hardly an obscure common law defense. It’s more of an element of any cause of action based on or closely related to fraud.
So, generally, working for Big Tobacco isn’t per se academic misconduct, but nonetheless should be stigmatized because they’re evil. That’s about how people feel about lawyers working for them, and I can’t disagree.
March 19, 2010 at 1:40 pm
Robert Halford
Oh, I was exaggerating a bit for effect, you’re absolutely right about the elements of fraud. But I doubt that an independent commitment to upholding the legal elements of a common law fraud claim was what was driving any expert witnesses’ decision to testify on behalf of a tobacco company.
As an ethical matter,I think there is a strong distinction between lawyers and experts in this context. A lawyer has an distinct and independent professional obligation to law and the adversarial process. Thus, I think it’s perfectly ethical for lawyers to take on work on behalf of tobacco companies (although I wouldn’t do that work personally). Experts, however, are different — they have different full-time jobs, different professional obligations, and they do not have the lawyer’s particular responsibility to the legal process. I’d say that a historian who puts aside her full time job to earn money testifying on behalf of a tobacco company is in a far different (and more ethically culpable) position than the tobacco company’s lawyer. But maybe that’s just me.
March 19, 2010 at 2:08 pm
elizardbreath
I’m not sure. I think you’re right that it’s not unethical for lawyers to represent Big Tobacco (if I really thought it was unethical, I wouldn’t have done it. It sure is embarrassing, though), so long as they don’t do anything independently unethical in the representation.
I’ve very uncomfortable saying “The standards of my profession allow me to work for the scum of the earth without being tainted by the contact. You non-lawyers, on the other hand, should be ashamed of yourself working for my clients.” If there’s not some specifically academic prohibition on working for bad people, how are historians any worse than people who sell tobacco companies office supplies, or support them in any other way?
March 19, 2010 at 2:12 pm
silbey
But maybe that’s just me
And me!
To rephrase something you said: doing expert witness work is in service of a process with different goals and means than historical work. Given that, the historian has to ask themselves about the trade-off: doing not-historical work in return for what goal? When the goal is supporting the tobacco companies, I think it becomes a really big problem.
March 19, 2010 at 3:05 pm
Robert Halford
Well, I do think lawyers have a special professional obligation to be advocates for the scum of the earth in a way that others don’t. I mean, we can and do and should represent murderers and child rapists, etc.
But I think this is related to the point I was trying to make above and that I think Silbey agrees with — for an academic committed to the independent pursuit of knowledge, being an expert witness is not really being an academic, it is doing something else (not “something else” that’s at all automatically wrong or improper, just something different). I think, but am not sure, that this is important for academics in a way that it is not important for the office supply guy — OSG is just selling his office supplies to the highest bidder, but academics are specifically not supposed to sell themselves to the highest bidder, and receive special benefits, like tenure, for their commitment to the independent pursuit of knowledge.
March 19, 2010 at 7:05 pm
politicalfootball
Above, I compared a historian working for tobacco companies to a historian working for Holocaust deniers, and I’m prepared to defend that comparison. Such historians are, as historians, behaving badly.
The ethical and professional demands placed on lawyers are different. A lawyer can represent a Holocaust denier or tobacco company – or rapist or murderer, as Robert points out – with no ethical qualms whatsoever.
March 19, 2010 at 7:36 pm
Elliott
Above, I compared a historian working for tobacco companies to a historian working for Holocaust deniers, and I’m prepared to defend that comparison.
Alright, Godwin’s Law at work!
March 19, 2010 at 10:50 pm
AYY
RH said:
“Experts, however, are different — they have different full-time jobs, different professional obligations, and they do not have the lawyer’s particular responsibility to the legal process.”
What if the tobacco company’s lawyer shows the expert the report of the plaintiff’s expert, and the tobacco co’s expert thinks the plaintiff’s expert is distorting the evidence? In that case what’s the ethical problem with representing the tobacco co?
“Well, I do think lawyers have a special professional obligation to be advocates for the scum of the earth in a way that others don’t. I mean, we can and do and should represent murderers and child rapists, etc.”
Okay but what if they have to hire an expert witness. What’s the problem with the expert witness testifying? He’s not advocating, he’s testifying.
Politicalfootball said:
“Above, I compared a historian working for tobacco companies to a historian working for Holocaust deniers, and I’m prepared to defend that comparison. Such historians are, as historians, behaving badly.”
Wouldn’t it depend on what the historian is being called upon to do in each case? I don’t see what the problem is as long as the historian is making an honest attempt to deal with the evidence and doesn’t go beyond his expertise. The jury has to rely on the medical experts for the medical part of the trial. The historian is going to be testifying on a different issue. Nor do I see a problem if the historian is working for the tobacco company in a second hand smoke case.
March 20, 2010 at 5:22 am
politicalfootball
Wouldn’t it depend on what the historian is being called upon to do in each case?
Yes. Implicit in my argument is the assumption that a historian would have a reasonable expectation in all cases that professional standards would be tossed out the window in the use of his or her work.
March 20, 2010 at 7:50 am
kid bitzer
the historian who wishes to set the record straight on some question can always, you know, publish an article.
March 20, 2010 at 8:44 am
jim
But publishing an article doesn’t actually bring in any money, directly.
I draw the ethicql line at being paid for testifying. ac above pointed out that public interest witnesses do it for free. It’s reasonable to accept reimbursement of legitimate expenses (yes, I know that expenses is an ill-defined term), but once you’ve taken a fee for preparing testimony and testifying, you’ve crossed an ethical line. Doesn’t matter if it’s Big Tobacco or Crucial Environmentalism.
March 20, 2010 at 11:40 am
AYY
PF said,
“Implicit in my argument is the assumption that a historian would have a reasonable expectation in all cases that professional standards would be tossed out the window in the use of his or her work.”
Why is this expectation reasonable? Is there an empirical basis for it? Also since the other side can expose a lack of professional standards, why would this be a problem? And why would a historian be responsible for the way his information is used if he gives honest information? He can’t judge the ultimate merits of the case.
Jim,
What’s the ethical problem with being paid for your time? And not all “public interest” experts do it for free. And if they do it for free, then doesn’t it seem that they might be ideologues who are testifying only to push an agenda?
March 20, 2010 at 2:44 pm
silbey
Why is this expectation reasonable
Because historical professional standards are different from legal professional standards.
March 20, 2010 at 3:18 pm
elizardbreath
But it’s not really generally recognized as unprofessional for a historian to be a paid expert witness at all, is it? I mean, there are huge issues with the whole expert witness process, and it often leads to very questionable behavior. But without the lead in of ‘the client is Big Tobacco’, could you really walk up to a reputable historian, ask “Is it ethically permissible for a historian to be paid for acting as an expert witness” and expect a ‘No’? I suppose it’s possible, but I’d be really surprised if that were the case.
March 20, 2010 at 3:40 pm
silbey
But it’s not really generally recognized as unprofessional for a historian to be a paid expert witness at all, is it?
I think the general consensus is that it doesn’t count as real historical work.
But, in any case,
But without the lead in of ‘the client is Big Tobacco’, could you really walk up to a reputable historian, ask “Is it ethically permissible for a historian to be paid for acting as an expert witness” and expect a ‘No’? I suppose it’s possible, but I’d be really surprised if that were the case.
Speculation is not evidence, so I’m not sure what we can gain about speculating about potential responses.
March 20, 2010 at 4:23 pm
jim
What’s the ethical problem with being paid for your time?
But you’re not being paid for your time. You’re being paid for your testimony.
March 20, 2010 at 5:21 pm
elizardbreath
I’m not sure what we can gain about speculating about potential responses.
I suppose I could have been more explicit. I know it’s a long shot, but by any chance are there any academic historians reading this who know whether or not there’s a generally recognized ethical bar on academic historians serving as expert witnesses?
March 20, 2010 at 6:31 pm
kid bitzer
i’d be happy to tell you, lb, but you should know in advance that I get a nickel an hour for that kind of work. plus travel. i can probably get you the answer for under two grand, but if it runs over five i’ll prorate the travel.
March 20, 2010 at 7:02 pm
JRoth
I don’t know if a third-profession POV will help this discussion, but:
Architects, of course, are also called upon to be expert witnesses. My first long-term boss made quite a sideline of it. In the end, I quit over it, because he consistently worked the wrong ethical side of every case*.
What’s potentially illuminating here is that a fair amount of architecture is (reasonably) cut and dry – I actually once testified at an arbitration hearing, talking about downspout capacity relative to roof areas. No matter who the client is, it’s hard to see that as ethically problematic, because it’s establishing the facts of the case (facts that aren’t readily available otherwise – I had to do drawings and calculations to support my testimony, it wasn’t just citing textbook design standards). But there were also plenty of cases that fit the competing interpretations model of expert witness (basically, “this building is historically significant” vs. “no it’s not”). And my take would be that the latter case has a much higher ethical bar to clear than the former.
IOW, if I’m arguing a position on a debatable issue, then I’d better be doing it on the side of what I believe to be right and good. In an adversarial situation, me throwing out colorable arguments isn’t enough; I need to know that the underlying position/principle is legit, or else I’m not acting on any ethics stronger than what’s good for my bank account.
To transfer this to history, I’m not sure what fact-based expertise a historian offers that falls in the former category. If the Good Guys are making dishonest historical claims (“A smoking-cancer link was proven in 1920”), then you don’t need an academic historian** to disprove it; old newspapers (and, I guess an archivist or someone so you can introduce them as evidence) or whatever can do the trick. So the only reason to bring in an academic historian is so that she can provide you with colorable claims that advance the Bad Guys’ position.
Or perhaps analogies should be banned, and I’ll just go to bed.
* The closest thing to an exception was when I thought the results were good – a wooded hillside was saved – but it was on behalf of a bunch of rich NIMBY assholes, so he barely gets credit for that. It wasn’t so much that the guy’s ethical compass was bad (although it wasn’t awesome), but that he had a relationship with a pretty loathsome land use lawyer. OTOH, it was due to this that I met my wife, so it all worked out.
** This is really really not any kind of dig at academic historians; my point is just that the kind of misrepresentations of fact that I think even a wicked litigant deserves to have corrected in court strike me as being beneath the attentions of an academic. Kind of like how you don’t need a hydrologist to testify that flooding is bad for drywall.
March 20, 2010 at 7:04 pm
JRoth
by any chance are there any academic historians reading this
I think we can all agree that academic historians have better things to do than to read overlong comment threads. Sheesh.
March 21, 2010 at 3:12 am
silbey
I suppose I could have been more explicit. I know it’s a long shot, but by any chance are there any academic historians reading this who know whether or not there’s a generally recognized ethical bar on academic historians serving as expert witnesses?
If only we could find an academic historian around here somewhere…
March 21, 2010 at 3:31 am
elizardbreath
an archivist or something
I don’t think that works. Someone with the archival expertise to put together a file of what was publically known on an issue from contemporaneous newspapers is probably going to be some kind of academic. And the claim you’re making — that the only reason you’d need a historian, rather than some lowlier admin type, is to lie for you, because if a historical claim is true, it’ll be obvious, also seems not self evident to me.
March 21, 2010 at 6:49 am
JRoth
Someone with the archival expertise to put together a file of what was publically known on an issue from contemporaneous newspapers
This strikes me as the kind of thing (or closely comparable) that anyone with a Bachelors degree was required to do as a freshman or sophomore assignment. I guess you can argue that, if you want it done well, you need an expert/professional, not merely someone smart who’s getting paid a lot of money to get it right.
the only reason you’d need a historian, rather than some lowlier admin type, is to lie for you, because if a historical claim is true, it’ll be obvious
My point is that historical claims* that are not obviously true are the kind that I wouldn’t worry about bad actors having defended. IOW, if the claim in question is arguable (this 90-y.o. building is/is not historically significant), then I don’t see an ethical obligation to make sure the Bad Guy’s position is well-represented. Where I want to see Bad Guys’ positions well-represented is when the Good Guys are flagrantly misrepresenting facts (this 5-y.o. building is plainly historical).
I guess “sophistry” is the concept I’m getting at here. I don’t see an ethical obligation to deploy sophistry on behalf of bad actors. At least not for non-lawyers.
* about the recent past, since that’s what’s going to be at issue in court. There are tons of factual historical claims that are subtle and would require lots of academic expertise, but I don’t think anyone’s getting sued over whether Erik the Red visited Newfoundland
March 21, 2010 at 8:22 am
Erik Lund
Actually, in this case it may have worked the other way. It very much appears that the history of medieval Greenland (and so Erik the Red) was laid down by the bench. It might even actually be of some relevance if people keep arguing about a “Medevial Warm Period.”
Otherwise, may be I’ll end the thread with a goofy little illustration of how history can work in the courts.
http://www.worldcourts.com/pcij/eng/decisions/1933.04.05_greenland/
http://en.wikipedia.org/wiki/Erik_the_Red%27s_Land
Click to access skarsteinLR.pdf
March 25, 2010 at 9:03 am
Barry
And they know their work is going to be distorted because?
ac: “Because the tobacco companies are not making a historical argument in the court room, they are making a legal argument, and that requires the lawyers to argue one side to the exclusion of all else.”
And because the tobacco companies spent a few decades funding fraudulent research trying to disprove links between smoking and lung diseases. There’s a f*cking history here.