Scientific Misconduct and Liability for the Acts of Others

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