Scientific Misconduct and Liability for the Acts of Others

Medicine and Law, Vol. 26, p. 477, 2007

Arizona Legal Studies Discussion Paper No. 07-22

18 Pages Posted: 19 Sep 2007

See all articles by Roy G. Spece

Roy G. Spece

University of Arizona - James E. Rogers College of Law

Carol Bernstein

University of Arizona

Abstract

We argue that two ambiguities in Public Health Service misconduct regulations make them so vague that they are unconstitutional and unfair: (1) they provide no guidance concerning when one can be held responsible for others' actions; and (2) they simultaneously are intended to allow misconduct findings only when there are "significant departure[s] from established practices of the relevant research community" but even if one complied with customary standards of practice in her research community, thus providing confusion rather than guidance. The effect of these ambiguities is not only to leave researchers without notice as to proscribed or prescribed conduct but also to give officials discretion to apply the regulations arbitrarily and discriminatorily. The regulations' effect is illustrated by applying them, hypothetically, to facts relating to the central charge in the misconduct case pressed by the University of Arizona in 1997 through 2003 against then Arizona Regents' Professor Marguerite Kay.

Keywords: scientific misconduct, vicarious liability, unconstitutionally vague, reckless hiring or supervision

JEL Classification: K42

Suggested Citation

Spece, Roy G. and Bernstein, Carol, Scientific Misconduct and Liability for the Acts of Others. Medicine and Law, Vol. 26, p. 477, 2007, Arizona Legal Studies Discussion Paper No. 07-22, Available at SSRN: https://ssrn.com/abstract=1015368

Roy G. Spece (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

Carol Bernstein

University of Arizona ( email )

Department of History
Tucson, AZ 85721
United States

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