Above the Law: Research Methods, Ethics, and the Law of Privilege

Abstract

In Anticipating Law: Research Methods, Ethics and the Law of Privilege, -- J. Sociological Methodology -- (2002), Ted Palys and John Lowman set forth the rationale for a "researcher-participant privilege" and advise scholars how best to preserve the confidentiality of their research in the face of a legal system that has not looked kindly on such a privilege. Although recognition of a researcher-participant privilege would, on balance, be beneficial, the case for the privilege is hardly self-evident. This paper reviews some of the reasons why courts and legislatures have not embraced such a privilege. The paper also explores the advice Palys and Lowman offer researchers in the absence of such a privilege (to promise research-participants absolute confidentiality, even if the researcher will have to defy a court order to satisfy the promise) and concludes that their advice is unwise and, arguably, unethical.