Scientific disputes traditionally have been settled by time and experiment, but lately researchers are using the judicial system to resolve what appear to be fundamentally scientific issues, or to defend themselves against critiques of their work. The latest such case was filed by Mark Jacobson, a climatologist at Stanford University, who wants $10 million from the first author and publisher of a recent critique of his work.
Jacobson’s paper, which he co-wrote with colleagues, was called “Low-cost solution to the grid reliability problem with 100% penetration of intermittent wind, water, and solar for all purposes.” In it, he argued that computer models show the U.S. could switch to a completely green energy grid by about 2055. It was published by Proceedings of the National Academy of Sciences (PNAS), a prestigious U.S. journal. Six months later, another group of academics and scientists from the energy industry, published a broadside against Jacobson’s article, again in PNAS. Their paper, “Evaluation of a proposal for reliable low-cost grid power with 100% wind, water, and solar,” claimed that the earlier article suffered from “significant shortcomings” including “invalid modeling tools … modeling errors … and implausible and inadequately supported assumptions.” This kind of critique is common in science.
JACOBSON ISN’T THE FIRST SCIENTIST TO TURN TO THE COURTS
In response, Jacobson filed his suit, calling for retraction and a payout. The Stanford professor singled out the first author of the article, Christopher Clack, saying he “knew and was informed prior to publication that many of the statements in the [paper] were false.” And he said the National Academy of Sciences, which publishes the journal, “knowingly and intentionally published false statements of fact.” Most concerning, Jacobson asserted, is that Clack’s paper undermines the core of his credibility as a researcher. (According to the lawsuit, the Clack paper is “particularly harmful and damaging to Dr. Jacobson’s reputation because his primary expertise is in computer modeling.”)
Jacobson isn’t the first scientist to turn to the courts to fight their critics. Mario Saad, a researcher in Brazil, failed to convince a judge in Massachusetts that an expression of concern - a step that often, although not always, comes before a retraction - about four of his papers in the journal Diabetes, was defamatory. Andrew Mallon, a former post-doc at Brown University, in Providence, Rhode Island, brought a copyright case to federal court urging that PLoS Biology retract a 2013 paper by his erstwhile lab director that left Mallon off the list of authors. He failed, too. (The judge, Timothy Hillman, agreed with the defense argument that Mallon had been using the copyright claim as a means of slinging mud at former coworkers.)
As funding for research gets tighter, anything that threatens to cut research money becomes an existential threat. And there’s a growing sense among researchers that the conventional gears for handling disputes grind slowly and rarely produce definitive conclusions.
DO DISPUTES OVER SCIENTIFIC VALIDITY BELONG IN THE COURTROOM?
Yet while a legal ruling might seem a satisfying outcome for scientists who feel wronged by their colleagues, the approach carries significant caveats and perils. And the strategy raises several questions: Do disputes over scientific validity belong in the courtroom? Are judges and juries capable of understanding the sort of hair-splitting details around which these disputes tend to revolve? And, perhaps most important, are scientists comfortable ceding control of their field to outside arbiters? It’s hard to see how the answers to any of these questions is yes.
Why might scientists be turning to the courts for help correcting the record? After all, the costs of legal representation are potentially enormous, especially compared with writing a letter to a journal. One explanation is editors often appear -- by their inaction, at least -- to be reluctant to fix mistakes. Just ask David Allison. Allison, a public health researcher at the University of Alabama at Birmingham, published an article in Nature in February 2016 describing his frustrations trying to get journals to correct dozens of clear errors in their pages. “After attempting to address more than 25 of these errors with letters to authors or journals, and identifying at least a dozen more, we had to stop — the work took too much of our time,” Allison and his colleagues lamented. Or ask CrossFit, which sued a journal’s publisher after it failed to retract a paper that, it turned out, deserved retraction.
Even journals that want to come clean are notoriously slow to police themselves. Corrections and retractions can take years to become public. Sometimes those delays make sense: Editors can’t rely on the word of a single author, who might have ulterior motives for changing or withdrawing a paper, and tracking down every member of a research group can be time-consuming. Lawyers for various sides try to wordsmith notices to protect their clients. Sometimes, journals delay for no apparent reason.
CORRECTIONS AND RETRACTIONS CAN TAKE YEARS TO BECOME PUBLIC
The Jacobson case is different. He appears to be behaving less like a scientist attempting to improve the state of knowledge in his field than a celebrity trying to protect his image. A celebrity like, say, Taylor Swift, who recently demanded the retraction of an article which called her “an icon of white supremacist, nationalists, and other fringe groups” and suggested that one the pop star’s most recent hits is come-hither wink to the alt-right. The American Civil Liberties Union scoffed at Swift’s legal threat, noting that the singer is a public figure about whom journalists have wide latitude to write what they please.
One question, then, for Jacobson and other researchers tempted to sue their critics is whether they want to continue using the courts to arbitrate scientific disagreements. The choice is obviously theirs to make -- and Jacobson’s attorney, Paul Thaler, says this is just part of defending a scientist’s reputation -- but legal wrangling doesn’t seem like the best way to keep the scientific record as up-to-date as possible.
Nor is it fail-safe. Sometimes a ruling makes matters worse for science -- and society. In 1927, for example, the U.S. Supreme Court agreed by an 8-1 margin in Buck v. Bell that governments could compel sterilization “for the protection and health of the state.” The noxious decision, in which Oliver Wendell Holmes, Jr., infamously wrote that "Three generations of imbeciles are enough," endorsed the cleansing of the so-called "feeble-minded" from the gene pool. It remains on the books.
“A JUDGE IS NOT A SCIENTIST, AND A COURTROOM IS NOT A SCIENTIFIC LABORATORY.”
Some judges appear less than eager to wade into scientific matters. Supreme Court Justice Stephen Breyer wrote in 2000 that he and colleagues on the bench “cannot hope to investigate all the subtleties that characterize good scientific work. A judge is not a scientist, and a courtroom is not a scientific laboratory.”
Echoing Breyer’s sentiment, a group of researchers recently wrote in JAMA Internal Medicine that “courts should not allow lawsuits to proceed to trial solely on the basis of warring affidavits over a study’s soundness or conclusions.” The reason: “It’s easy to find ‘experts’ -- typically paid hourly rates -- who are willing to present a contrary opinion or second-guess a study,” and in the process allowing claimants to say the facts are in dispute. Challenges to the science of climate change bear this out starkly. Those guns for hire could well be earning hefty paychecks very soon. A group of 21 children have sued the Trump Administration over its stance on climate change, arguing that the refusal to take steps to reduce the reliance on fossil fuels and to otherwise mitigate climate change amounts to a breach of the public trust. Next month, a federal appeals court will take oral arguments on whether it will allow the suit, which is being brought by an advocacy group called Our Children’s Trust, to go to trial.
The better way would be for researchers, journal editors and others to accept that criticism is part of the scientific process, and to step up their efforts to correct the record. If they persist in dragging their feet, as so many do, more lawsuits are inevitable and scientists will be saying: “See you in court” a lot more. But they really should be saying, “See you in the lab.”
Jacobson’s paper, which he co-wrote with colleagues, was called “Low-cost solution to the grid reliability problem with 100% penetration of intermittent wind, water, and solar for all purposes.” In it, he argued that computer models show the U.S. could switch to a completely green energy grid by about 2055. It was published by Proceedings of the National Academy of Sciences (PNAS), a prestigious U.S. journal. Six months later, another group of academics and scientists from the energy industry, published a broadside against Jacobson’s article, again in PNAS. Their paper, “Evaluation of a proposal for reliable low-cost grid power with 100% wind, water, and solar,” claimed that the earlier article suffered from “significant shortcomings” including “invalid modeling tools … modeling errors … and implausible and inadequately supported assumptions.” This kind of critique is common in science.
JACOBSON ISN’T THE FIRST SCIENTIST TO TURN TO THE COURTS
In response, Jacobson filed his suit, calling for retraction and a payout. The Stanford professor singled out the first author of the article, Christopher Clack, saying he “knew and was informed prior to publication that many of the statements in the [paper] were false.” And he said the National Academy of Sciences, which publishes the journal, “knowingly and intentionally published false statements of fact.” Most concerning, Jacobson asserted, is that Clack’s paper undermines the core of his credibility as a researcher. (According to the lawsuit, the Clack paper is “particularly harmful and damaging to Dr. Jacobson’s reputation because his primary expertise is in computer modeling.”)
Jacobson isn’t the first scientist to turn to the courts to fight their critics. Mario Saad, a researcher in Brazil, failed to convince a judge in Massachusetts that an expression of concern - a step that often, although not always, comes before a retraction - about four of his papers in the journal Diabetes, was defamatory. Andrew Mallon, a former post-doc at Brown University, in Providence, Rhode Island, brought a copyright case to federal court urging that PLoS Biology retract a 2013 paper by his erstwhile lab director that left Mallon off the list of authors. He failed, too. (The judge, Timothy Hillman, agreed with the defense argument that Mallon had been using the copyright claim as a means of slinging mud at former coworkers.)
As funding for research gets tighter, anything that threatens to cut research money becomes an existential threat. And there’s a growing sense among researchers that the conventional gears for handling disputes grind slowly and rarely produce definitive conclusions.
DO DISPUTES OVER SCIENTIFIC VALIDITY BELONG IN THE COURTROOM?
Yet while a legal ruling might seem a satisfying outcome for scientists who feel wronged by their colleagues, the approach carries significant caveats and perils. And the strategy raises several questions: Do disputes over scientific validity belong in the courtroom? Are judges and juries capable of understanding the sort of hair-splitting details around which these disputes tend to revolve? And, perhaps most important, are scientists comfortable ceding control of their field to outside arbiters? It’s hard to see how the answers to any of these questions is yes.
Why might scientists be turning to the courts for help correcting the record? After all, the costs of legal representation are potentially enormous, especially compared with writing a letter to a journal. One explanation is editors often appear -- by their inaction, at least -- to be reluctant to fix mistakes. Just ask David Allison. Allison, a public health researcher at the University of Alabama at Birmingham, published an article in Nature in February 2016 describing his frustrations trying to get journals to correct dozens of clear errors in their pages. “After attempting to address more than 25 of these errors with letters to authors or journals, and identifying at least a dozen more, we had to stop — the work took too much of our time,” Allison and his colleagues lamented. Or ask CrossFit, which sued a journal’s publisher after it failed to retract a paper that, it turned out, deserved retraction.
Even journals that want to come clean are notoriously slow to police themselves. Corrections and retractions can take years to become public. Sometimes those delays make sense: Editors can’t rely on the word of a single author, who might have ulterior motives for changing or withdrawing a paper, and tracking down every member of a research group can be time-consuming. Lawyers for various sides try to wordsmith notices to protect their clients. Sometimes, journals delay for no apparent reason.
CORRECTIONS AND RETRACTIONS CAN TAKE YEARS TO BECOME PUBLIC
The Jacobson case is different. He appears to be behaving less like a scientist attempting to improve the state of knowledge in his field than a celebrity trying to protect his image. A celebrity like, say, Taylor Swift, who recently demanded the retraction of an article which called her “an icon of white supremacist, nationalists, and other fringe groups” and suggested that one the pop star’s most recent hits is come-hither wink to the alt-right. The American Civil Liberties Union scoffed at Swift’s legal threat, noting that the singer is a public figure about whom journalists have wide latitude to write what they please.
One question, then, for Jacobson and other researchers tempted to sue their critics is whether they want to continue using the courts to arbitrate scientific disagreements. The choice is obviously theirs to make -- and Jacobson’s attorney, Paul Thaler, says this is just part of defending a scientist’s reputation -- but legal wrangling doesn’t seem like the best way to keep the scientific record as up-to-date as possible.
Nor is it fail-safe. Sometimes a ruling makes matters worse for science -- and society. In 1927, for example, the U.S. Supreme Court agreed by an 8-1 margin in Buck v. Bell that governments could compel sterilization “for the protection and health of the state.” The noxious decision, in which Oliver Wendell Holmes, Jr., infamously wrote that "Three generations of imbeciles are enough," endorsed the cleansing of the so-called "feeble-minded" from the gene pool. It remains on the books.
“A JUDGE IS NOT A SCIENTIST, AND A COURTROOM IS NOT A SCIENTIFIC LABORATORY.”
Some judges appear less than eager to wade into scientific matters. Supreme Court Justice Stephen Breyer wrote in 2000 that he and colleagues on the bench “cannot hope to investigate all the subtleties that characterize good scientific work. A judge is not a scientist, and a courtroom is not a scientific laboratory.”
Echoing Breyer’s sentiment, a group of researchers recently wrote in JAMA Internal Medicine that “courts should not allow lawsuits to proceed to trial solely on the basis of warring affidavits over a study’s soundness or conclusions.” The reason: “It’s easy to find ‘experts’ -- typically paid hourly rates -- who are willing to present a contrary opinion or second-guess a study,” and in the process allowing claimants to say the facts are in dispute. Challenges to the science of climate change bear this out starkly. Those guns for hire could well be earning hefty paychecks very soon. A group of 21 children have sued the Trump Administration over its stance on climate change, arguing that the refusal to take steps to reduce the reliance on fossil fuels and to otherwise mitigate climate change amounts to a breach of the public trust. Next month, a federal appeals court will take oral arguments on whether it will allow the suit, which is being brought by an advocacy group called Our Children’s Trust, to go to trial.
The better way would be for researchers, journal editors and others to accept that criticism is part of the scientific process, and to step up their efforts to correct the record. If they persist in dragging their feet, as so many do, more lawsuits are inevitable and scientists will be saying: “See you in court” a lot more. But they really should be saying, “See you in the lab.”