Research and its Revelation: When Should Courts Compel Disclosure

The best hope for improving the resolution of disputes concerning disclosing research is for lawyers to present the research and litigation issues clearly and for courts to develop a keener sense for the area of expertise involved

Research and its Revelation: When Should Courts Compel Disclosure

The best hope for improving the resolution of disputes concerning disclosing research is for lawyers to present the research and litigation issues clearly and for courts to develop a keener sense for the area of expertise involved

The Uncontroversial Controversy in Compelled Commercial Disclosures

Federal and state administrative agencies increasingly advance public health goals through the use of mandatory disclosures, like warning labels on cigarettes, that are intended to both inform and influence consumer decisions. However, the standard for determining whether these requirements violate a commercial speaker’s First Amendment rights is unsettled. In Zauderer v. Office of Disciplinary Counsel, the U.S. Supreme Court adopted a test that defers to the government’s determination that the compelled disclosure of “factual and uncontroversial information” is justified. Since Zauderer was decided, lower courts have disagreed about the meaning of “uncontroversial.” A recent Supreme Court case, National Institute of Family & Life Advocates v. Becerra (NIFLA), may have resolved the debate by treating “uncontroversial” as a requirement that a disclosure not relate to a controversial subject matter. In doing so, the Court diverged from two interpretations commonly adopted by lower courts: that “uncontroversial” refers to the factual accuracy of the disclosed information or to the underlying ideology. This Note illustrates the public health implications of these various interpretations in the context of an ongoing international debate over the benefits of breastfeeding and mandatory disclosures with respect to infant formula. It argues that the Court’s position in NIFLA poses a significant obstacle to government efforts to protect public health and ignores Zauderer’s firm grounding in listeners’ informational interests. Factual accuracy more appropriately limits Zauderer’s scope. Heightened scrutiny should only apply if the government compels a commercial speaker to convey opinion. While concerns about the overuse of warnings for remote or unsubstantiated risks are well-founded, this issue may be addressed by evaluating whether a particular disclosure fails Zauderer review as “unjustified or unduly burdensome.” This framework for compelled disclosures is more strongly supported by the text of Zauderer itself, and it would grant proper deference to a legislature’s policy determination that potential health risks justify a disclosure

Researcher’s Reactions to Compelled Disclosure of Scientific Information

Demands placed on researchers by subpoenas for scientific information are not necessarily any greater than those placed on other third-party recipients of subpoenas

Countering the Excessive Subpoena for Scholarly Research

A researcher has many opportunities to safeguard research and take a stance in court to protect the privacy of study participants in the interest of well-grounded scientific or social analysis

Judicially Compelled Disclosure of Researchers’ Data: A Judge’s View

Crabb looks at the approach one court has established to balance the demands of the legal system with the legitimate concerns of researchers

Science and Subpoenas: When do the Courts Become Instruments of Manipulation?

Fischer says he believes that the uneasy relationship between law and science is likely to continue regarding disclosure of scientific research materials