The historians of conscience are at it, again. Professor David Rosner, of Columbia University, and Gerald Markowitz, of John Jay College, City University of New York, testify for plaintiffs in products liability cases. They are paid for their troubles, but they do not like the idea that other historians testify for the defendants. It is another example of those pesky asymmetries that people have in their beliefs about conflicts of interest, access to underlying data, and other issues that surround contemporary products liability litigation.
In the current issues of Academe, Rosner and Markowitz describe their troubles as testifiers. See “The Historians of Industry” (November – December 2010), at <http://www.aaup.org/AAUP/pubsres/academe/2010/ND/feat/mark.htm>
Their description of their testimonial adventures is noteworthy on several scores:
“Five years ago, one of us received an odd e-mail. ‘Dear Dr. Rosner’, it began. ‘I am writing to introduce you to the Round Table Group, and to notify you of a short-term consulting opportunity which may be of interest. Our client is seeking an historian, highly credentialed, at a prestigious university to perform some historical research, and instruct a lay jury about what was known about a particular occupational hazard (lead paint contamination) in 1950 to 1980.’
The letter went on to explain how the historian they sought “need not be a subject matter expert” but need only be a good communicator’ who could ‘easily communicate a story to a jury. The e-mail continued in some detail, telling how the process would work: if David were interested, he could send in his résumé, a brief explanation of his expertise, and a statement of his consulting fee. The note continued by informing him about the consulting group: it was a consortium of several thousand professors in management, law, medicine, science, computer science, education, engineering, economics, and other disciplines who make themselves available to law firms and companies who are clients of the Round Table Group.”
Rosner’s description of this solicitation is fascinating for what it leaves out.
Rosner acknowledges that this article is essentially a republication of articles that previously appeared in two other journals. Actually, he failed to acknowledge that this material actually was published previously three times. Historians apparently are not subject to the same ethical rules as scientists on not gratuitously republishing the same material, over and over. Rosner and Markowitz’ article in Academe is their fourth iteration of the same theme, with much of the same content. Perhaps the inference is that historians, like history, are doomed to repeat themselves. See Schachtman, How Testifying Historians Are Like Lawn-Mowing Dogs (May 15, 2010). The prior publications were:
- D. Rosner & G. Markowitz, “The Trials and Tribulations of Two Historians: Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 280-81 (2009)
- D. Rosner & G. Markowitz, “L’histoire au prétoire. Deux historiens dans les procès des maladies professionnelles et environnementales,” 56 Revue D’Histoire Moderne & Contemporaine 227, 238-39 (2009)
- D. Rosner, “Trials and Tribulations: What Happens When Historians Enter the Courtroom,” 72 Law & Contemporary Problems 137, 152 (2009)
In their earlier publication, Rosner and Markowitz expand on the Round Table Groups (RTG) and its solicitation of Rosner for paid testimony:
“What was amusing, if that is the right word, was that RTG was searching for an expert to testify on behalf of companies in a lead trial and at that very moment both of us were preparing to testify in a major lead trial on behalf of the state of Rhode Island.”
Rosner & Markowitz, “The Trials and Tribulations of Two Historians: Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 273 (2009)`
Now, Rosner and Markowitz’ description of the Round Table Group is fascinating because, if true, RTG engaged in conduct, both incompetent and unethical. The Group, charged by defendants and their counsel, should have known that Rosner and Markowitz were adverse to their clients’ positions in the lead litigation. A casual reading of their publications would have revealed their quasi-Marxist leanings, and their antipathy towards business interests. Trying to recruit Rosner and Markowitz as defense historian experts was a bit like recruiting Vladimir Lenin to the University of Chicago economics department.
Furthermore, the RTG solicitation, as described, was potentially unethical. Lawyers are not supposed to communicate with adverse parties, without the permission or presence of their counsel, and expert witnesses are agents of the party that retained them. RTG, in addition apparently to not conducting due diligence about the views of the historians it was contacting, should have known what witnesses were already retained or likely retained by the adversary party.
Rosner and Markowitz appear more intent upon calling attention, not to the ethical or competency issues, but to the appearance of sleaziness in recruiting expert witnesses for hire. The solicitation letter’s suggestion that one need not be a “subject-matter” expert is disquieting, but accurate. The standard for qualifying expert witnesses is very low, and in some jurisdictions, even the reasonable pretense of expertise suffices to qualify a witness to hold forth with an “expert” opinion in court. Of course, in approaching Rosner, the RTG was attempting to recruit an historian who had written on lead issues.
Curiously, Rosner and Markowitz fail to mention that they have testified numerous times, in silica and in lead cases, and that Markowitz has testified in vinyl chloride cases. They fail to discuss how they were recruited by plaintiffs’ lawyers, or the terms of remuneration for their testimonial efforts.
As for the apparent sleaziness of recruiting expert witnesses, consider what appears to be Rosner’s and Markowitz’ role in recruiting faculty and students to write screeds against conservative positions. Last May, the blogosphere erupted with news of an email sent out by Peter Drier, of the “Cry Wolf Project,” to undisclosed recipients, re “Paid activist research – request for mini-proposals.” The email was a request for proposals to write propaganda and information pieces for left-wing causes:
We are looking for faculty and graduate students (in history, sociology, economics, political science, planning, public health, and public policy) interested in writing short (2000 word) policy briefs for which we can pay $1,000. For specifics, read on…
We are writing to ask for your help in an important project in the battle with conservative ideas. Today, as in the past, the fight to transform American politics and policy takes place on a battlefield in which ideas, narratives, and the construction of a politically driven conventional wisdom constitutes a set of highly potent weapons. Too often conservatives in the Congress and the media have captured the rhetorical high ground by asserting that virtually any substantial, progressive change in public policy, especially that involving taxes on the wealthy or regulation of business, will kill jobs, generate a stifling government bureaucracy, or curtail economic growth.
But history shows that in almost every instance the opponents of needed social and economic change are ‘crying wolf’. We therefore need to construct a counter narrative that demonstrates the falsity or exaggeration of such claims so that the first reaction of millions of people, as well as opinion leaders, will be ‘There they go again!’ Such a refrain will undermine the credibility and arguments of the organizations and individuals who use such dire social and economic prognostications to thwart progressive reform.
To give substance and scholarly integrity to this ‘crying wolf’ argument, we are calling upon historians and social scientists, in training or well established, to use their research skills to identify instances, in recent years as well as in the more distant pass, in which the ‘crying wolf’ scare was put forward by industry executives, conservative politicians, and right-wing pundits before the passage of legislation or the promulgation ofregulations that have become hallmarks of popular and progressive statecraft. On each issue we seek to document three things: First, historical examples and quotes drawn from speeches, legislative testimony, newspaper and other media opinion pieces, think-tank reports, or political platforms which claim that a proposed policy or regulation would generate a set of negative consequences; second, a discussion of how these crying-wolf claims impacted the new laws or regulations as they were passed into law; and third, a well-documented analysis of the extent to which conservative and special interest fears were or were not realized during the years and decades after the new laws or regulations went into effect.
This work is sponsored by the San Diego-based Center on Policy Initiatives and funded by a grant from the Public Welfare Foundation. Donald Cohen of CPI, Peter Dreier of Occidental College, and Nelson Lichtenstein of UC Santa Barbara constitute the ad hoc committee now administrating this initiative.
Based on some of the policy areas listed below, we solicit one page proposals for the kind of short studies outlined above. If we think the proposal promising, we will then ask the applicant to develop a larger policy brief, perhaps 2,000 words in length. It should be well documented and scrupulously accurate. We will pay $1,000 for each brief that meets these standards. We hope that many of these become the basis for opinion pieces designed to run in the mainstream media, on line, on the air, or in the press.
We will be focusing on the following policy areas.
We will be looking for the following things in each case study/policy brief:
- Taxes and public budgets
- Labor market standards
- Food, tobacco and drug health and safety
- Environmental protection: air, water, toxics, etc
- Workplace safety
- Financial regulation
- Consumer product safety
- Local issues (i.e. inclusionary housing, building code standards, etc.)
Proposals should be sent to Donald Cohen at email@example.com.
Please feel free to forward this RFP and/or to send ideas, references and proposals.
Peter Dreier, Donald Cohen, and Nelson Lichtenstein”
And guess who were listed among the members of Cry Wolf’s Project Advisory Board?
Gerald Markowitz, and David Rosner!!
I wonder whether they were paid $1,000 to write their piece in Academe. If so, what easy money to recycle their triplicate 2009 publications.
The Drier email raised conservative hackles and hyperbolic criticisms in the blogosphere, but it is hard to see what is wrong with writing papers to rebut what one believes is factually or politically wrong. See BREAKING NEWS: WOLVES IN SHEEP’S CLOTHING? CRY WOLF PROJECT: ACADEMIC INTEGRITY FOR SALE: DEM ACTIVISTS BUYING UP POLICY PAPERS TO COUNTER CONSERVATIVES IN MEDIA POWER PLAY http://theenterprisereport.typepad.com/news/2010/06/breaking-new-dems-activists-buying-up-policy-papers-to-counter-conservatives-in-media-power-play.html .
Although I do not see the Cry Wolf Project as necessarily undermining academic integrity, I do believe it raises some interesting issues. First, for me at least, I find the analogy to what the Round Table Group did in soliciting Rosner, interesting and compelling. The Cry Wolf Project did not seem to focus its solicitation on those academics particularly qualified and suited to write on their topics of interest. Furthermore, the Cry Wolf Project folks were interested in soliciting faculty and students to write pieces of pre-determined positions and conclusions, which seems somewhat at odds with the open-minded, free inquiry that we, perhaps idealistically, hope goes on at colleges and universities. Indeed, the Drier email, with hot air in its sails from Rosner and Markowitz, seems a LOT like the RTG’s solicitation of Rosner, in the lead paint litigation. And where did the money come from to fund these earnest academicians?
Finding Rosner and Markowitz at the heart of the Cry Wolf Project, after their repeated, supercilious criticisms of the Round Table Group, and of defendants in litigation, is an irony too sweet to be overlooked.
Crying wolves, indeed.