PCL-R Psychopathy: Threats to Sue, Peer Review, and Potential Implications for Science and Law. A Commentary

Abstract

Disputes among academicians are not uncommon. They are usually played out in peer review journals in the form of point-and-counterpoint articles, or rebuttals and rejoinders. Recently however, a threat of litigation was issued against the authors of an article and the editor of the scientific journal which had accepted that article for publication following peer review. In this commentary we review legal commentary on litigation (and threats of litigation) involving academic disputes and literature regarding the values that underpin the scientific peer review process. We conclude that the use of threats of litigation to suppress the publication of articles accepted for publication in scientific journals strike at the heart of the peer review process, may have a chilling effect on the values at the core of academic freedom, and may potentially impede the scientific testing of various theories, models and products.

Keywords:

• scientific peer review
• academic freedom
• conflict of interest

Notes

¹Robert R. McCrae et al., Evaluating Replicability of Factors in the Revised NEO Personality Inventory: Confirmatory Factor Analysis versus Procrustes Rotation, 70 J. Pers. & Soc. Psychol. 552 (1996).

² See, e.g., Richard Rogers et al., A Critical Review of Published Competency to Confess Measures, 28 Law & Hum. Behav. 707 (2004), and the rejoinder by Thomas Grisso, Reply to ‘A Critical Review of Published Competency to Confess Measures, 28 Law & Hum. Behav. 719 (2004).

³ See, J.P. Newman & C.A. Brinkley, Reconsidering the Low-Fear Explanation for Primary Psychopathy, 8 Psychol. Inquiry 236 (1997) (a critique of David Lykken, The Antisocial Personalities (1995)).

⁴For differing views of “ultimate issue” testimony, see, Stephen Morse, Crazy Behavior, Morals, and Science: An Analysis of Mental Health Law, 51 So. Cal. L. Rev. 527 (1978); Richard Bonnie & Christopher Slobogin, The Role of Mental Health Professionals in the Criminal Process: The Case for “Informed Speculation,” 66 Va. L. Rev. 427 (1980); Richard Rogers & Charles P. Ewing, Ultimate Opinion Proscriptions: A Cosmetic Fix and a Plea for Empiricism, 13 Law & Hum. Behav. 357 (1989).

⁵Robert D. Hare, Manual for the Hare Psychopathy Checklist – Revised (1991/2003).

⁶ See, e.g., Norman G. Poythress et al., Associations among Early Abuse, Dissociation, and Psychopathy in a Large Offender Sample, 115 J. Abnormal Psychol. 288 (2006). “The best validated measure of psychopathy is Hare's (2003) PCL-R …” (Id. at 289).

⁷ See, e.g., Randy Salekin, et al., A Review and Meta-analysis of the Psychopathy Checklist and Psychopathy Checklist – Revised: Predictive Validity of Dangerousness, 3 Clinical Psychol.: Sci. & Prac. 203 (1996); James F. Hemphill et al., Psychopathy and Recidivism: A Review, 3 Legal & Criminological Psychol. 139 (1998); Glenn D. Walters, Predicting Institutional Adjustment and Recidivism with the Psychopathy Checklist Factor Scores: A Meta-analysis, 27 Law & Hum. Behav. 541 (2003).

⁸ See, e.g., Stephen J. Lally, What Tests are Acceptable for Use in Forensic Evaluations? A Survey of Experts, 34 Prof. Psychol., Res. & Prac. 491 (2003); Anton O. Tolman & Kristine B. Mullendore, Risk Evaluations for the Courts: Is Service Quality a Function of Specialization?, 34 Prof. Psychol., Res. & Prac. 225, 229 (2003).

⁹ See, e.g., John F. Edens, Unresolved Controversies Concerning Psychopathy: Implications for Clinical and Forensic Decision Making, 37 Prof. Psychol.: Res. & Prac. 59 (2006); Terence W. Campbell, The Validity of the Psychopathy Checklist-Revised in Adversarial Proceedings, 6 J. Forensic Psychol. Prac. 43 (2006). These authors discuss, among other things, concerns about the adequacy of expert witnesses' training on the use of the PCL-R, difficulties determining whether the quantum of available third-party and file information is satisfactory for scoring the PCL-R, and the potential impact of the adversary process on the reliability of scoring the PCL-R. See also, Daniel C. Murrie et al., Does Interrater (Dis)agreement on Psychopathy Checklist Scores in Sexually Violent Predator Trials Suggest Partisan Allegiance in Forensic Evaluations? 32 Law & Hum. Behav. 352 (2008) (reporting much lower estimates of interrater reliability for experts in actual trials than are reported in the PCL-R manual).

¹⁰ See Paul Gendreau et al., Is the PCL-R Really the “Unparalleled” Measure of Offender Risk? A Lesson in Knowledge Accumulation, 29 Crim. Just. & Behav. 397 (2002), and the response by James F. Hemphill & Robert D. Hare, Some Misconceptions about the Hare-PCL-R and Risk Assessment: A Reply to Gendreau, Goggin, and Smith, 31 Crim. Justice & Behav. 203(2004).

¹¹ See, e.g., David Cooke et al., Reconstructing Psychopathy: Clarifying the Significance of Antisocial and Socially Deviant Behavior in the Diagnosis of Psychopathic Personality Disorder, 18 J. Pers. Disorders 337 (2004), and the response by Craig Neumann et al., Reconstruing the Reconstruction of Psychopathy: A Comment on Cooke, Michie, Hart and Clark, 19 J. Pers. Disorders 624 (2005).

¹² See, David Cooke et al., Assessing Psychopathy in the U.K.: Concerns about Generalisability, 186 Brit. J. Psychiatry 335 (2005) and the response by Daniel M. Bolt et al., Score Metric Equivalence of the Psychopathy Checklist – Revised (PCL-R) Across North America and the United Kingdom: A Critique of Cooke, Michie, Hart and Clark (2005) and New Analyses, 14 Assessment 44 (2007).

¹³Jennifer L. Skeem & David Cooke, Is Criminal Behavior a Central Component of Psychopathy? Conceptual Directions for Resolving the Debate.

¹⁴The summary of events in this section is taken from a letter dated November 8, 2007, from Hare's attorney to Professors Cooke and Skeem, and to Dr. Milton E. Strauss, the editor of Psychological Assessment.

¹⁵Id.

¹⁶In this article we take no position on the scientific dispute between Drs. Hare, Skeem, and Cooke regarding the construct validity of the PCL-R, nor do we question the right of an individual to sue for damages if he or she has actually been defamed by others. Rather, the objective of our analysis is to use this particular dispute to consider the “collateral damage” that may result when, as in this instance, a dispute between academics gives rise to a threat of litigation. The authors of this article have long been advocates for and supporters of the PCL-R in its role as a risk assessment tool. In our text on forensic assessment we have touted the PCL-R as “perhaps the single most promising recent development in risk assessment of correctional and forensic populations” (Gary B. Melton et al., Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (2nd ed) (1997) at 286). As Chair of the Department of Mental Health Law and Policy at the University of South Florida, John Petrila retained Professor Hare and his colleague, Stephen Hart, to teach the PCL-R to the clinical faculty who staffed the department's forensic assessment clinic in the early 1990's. Norman Poythress has used the PCL-R both clinically and as a primary research instrument in studies of antisocial personality and psychopathy funded by the National Institutes of Mental Health (Grant No. RO1 MH63783-01A1). Each of the authors has also been a research collaborator with Dr. Skeem. See, e.g., Jennifer L. Skeem et al., Psychopathy, Treatment Involvement, and Subsequent Violence among Civil Psychiatric Patients, 26 LAW & HUM. BEHAV. 577 (2002); Jennifer L. Skeem & John Petrila, Juvenile Psychopathy: Informing the Debate (Preview), 22 BEHAV. SCI. & LAW 1 (2004); Jennifer L. Skeem et al., Psychopathic Personality or Personalities? Exploring Potential Variants of Psychopathy and their Implications for Risk Assessment, 8 Aggression & Violent Behav. 513 (2003).

¹⁷David Shatz, Peer Review: A Critical Inquiry (2004) (supplemental essay by Joe Cain, Why be my Colleague's Keeper? Moral Justifications for Peer Review, at 179-190. This essay describes the peer review process as “a quality control mechanism for a field's literature, and therefore, for a field's knowledge base” … and “a means for validating claims about results.” Id. at 183, 184). See also, Sense about Science, Peer Review and the Acceptance of New Ideas, p. 4 (2005; accessed Feb. 3, 2009, by NP) < www.senseaboutscience.org.uk/PDF/peerReview.pdf >. (“peer review … is central to establishing which scientific claims should be trusted.”) Hereinafter, SAS.

¹⁸International Committee of Medical Journal Editors, Uniform Requirements for Manuscripts Submitted to Biomedical Journals II.C. (2005; accessed Feb. 3, 2009, by NP) < http://www.icmje.org/#conflicts >. Hereinafter, ICMJE Requirements.

¹⁹ Id.

²⁰Donald Kennedy, Editorial: Publish or not Publish? 295 Science 1793 (2002) 1793. The reference to “efforts at repetition and reinterpretation” reveals an important quality about scientific knowledge – that it is not a single study or finding, but the full corpus of literature on any particular topic or issue that defines “truth” at any point in time. See also, Stephen Lock, A Difficult Balance: Editorial Peer Review in Medicine (1985) (“Peer review does not, and cannot, ensure perfection: scientific journals are records of work done and not of revealed truth.”) Id. at 129. See SAS, supra note 17 (“… if the [published] findings are very significant, any flaws are likely to be discovered quite quickly because the paper will be widely read and discussed and other scientists will attempt to repeat the work. (This rapid discovery of mistakes is often referred to as science being ‘self-correcting’.))” See also, James M. Wood & M. Teresa Nezworski, Science as a History of Corrected Mistakes, 60 Am. Psychologist 657 (2005) (“The history of science can be viewed as a constant and largely successful struggle to overcome confirmatory biases. … Put another way, science is a history of corrected mistakes.”). Id. at 657.

²¹“As with any system that is dependent on human judgment, such as jury trials and doctors' diagnoses, mistakes are sometimes made by referees.” SAS, supra note 17 at xi. One authority humorously commented that peer review “… is the worst form of evaluation, except for all the others.” David Shatz, supra note 17 at 12.

²²Irene Hames. Peer Review and Manuscript Management in Scientific Journals: Guidelines for Good Practice. (2007), 2.

²³For broad discussions and examples of problems with the peer review process, see Ann C. Weller, Editorial Peer Review: Its Strengths and Weaknesses (2001). Mohammadreza Hodat, et al., Impartial Judgment by the “Gatekeepers” of Science: Fallibility and Accountability in the Peer Review Process, 8 Advances in Health Sci. Educ. 75 (2003). Shatz, supra note 17. Many of these issues are examined from a legal perspective in M.R. Patterson, Conflicts of Interest in Scientific Expert Testimony, 40 William and Mary L. Rev. 1313 (1999). Despite its many flaws, surveys reveal that the majority of scientists are satisfied with the peer review process. See J. de Vries, Peer Review: The Holy Cow of Science, in A Century of Science Publishing: A Collection of Essays 231 (E.H. Fredriksson ed 2001). See also, Hames, supra note 22, at 2. For a thoughtful discussion of the traditional peer review process and some alternatives, see J. Suls & R. Martin, The Air We Breathe: A Critical Look and Practices and Alternatives in the Peer-Review Process, 4 Perspectives on Psychol. Sci. 40 (2009).

²⁴Council of Science Editors, CSE's White Paper on Promoting Integrity in Scientific Journal Publications (2006; accessed Feb. 3, 2009 by NP). < http://www.councilscienceeditors.org/editorial_policies/white_paper.cfmaccessed > (defining conflict of interest as “conditions in which an individual holds conflicting or competing interests that could bias editorial decisions. Conflicts of interest may be only potential or perceived, or they may be factual.”) Hereinafter, CSE.

²⁵Astrid James & Richard Horton, The Lancet's Policy on Conflicts of Interest, 361 Lancet 8 (2003).

²⁶ICMJE Requirements, supra note 18, II.D. See also, Teddy D. Warner & Laura W. Roberts, Scientific Integrity, Fidelity, and Conflicts of Interest, 17 Current Opinion in Psychiatry 381 (2004) 381 (“… conflicts of interest, and the appearance of conflicts of interest, undermine trust in the scientific integrity as perceived by key stakeholders (cites omitted).” Id. at 381. The CSE, supra note 24, also identified financial conflict as “The most evident type of potential conflict” and as one that arises “when an individual or organization may benefit financially from a decision to publish or to reject.”

²⁷Hames, supra note 22, at 166. Although we highlight financial conflict of interest, conflicts of interest resulting from other motivations (e.g., to protect one's favorite scientific theory from attack) could just as well undermine the integrity of the scientific peer review process. See, e.g., Eliot Marshall, When Does Intellectual Passion become Conflict of Interest? 257 Science 620 (1992).

²⁸World Association of Medical Editors, WAME Publication Ethics Policies for Medical Journals (2008; accessed Feb. 3, 2009 by NP) < www.wame.org/resources/ethics-resources/publication-ethics-policies-for-medical-journals/ >. See also, Hames, supra note 22 (“No conflict of interest (also known as a dual commitment, competing interest, or competing loyalty) or prejudice must be allowed to influence the submission of a manuscript, its review, or the decision whether or not it should be published.”) Id. at 164.

²⁹“Commercial interests also need to be considered. A referee might, for example, have a significant share-holding in a company whose product is called into question by a piece of research. It is important that anything of this nature is declared by referees immediately on receiving the paper.” SAS, supra note 17, at 13. See also, Hames, supra note 22, at 162-ff.

³⁰Richelle J. Cooper, et al., Conflict of Interest Disclosure Policies and Practices in Peer-Reviewed Biomedical Journals, 21 J. Gen. Intern. Med. 1248 (2006). In this survey of journal editors' practices, 46% of respondents indicated that the journal had an explicit policy in place to deal with reviewer conflict of interest. Id. at 1248. Approximately a quarter of the respondents indicated that they asked peer reviewers with a conflict of interest to recuse themselves from the review process. Id. at 1250. See also, ICMJE Requirements, supra note 68. (“Editors should avoid selecting external peer reviewers with obvious potential conflicts of interest …”.) Section II.3.D. Biological Resources Division, U.S. Geological Survey, Peer Review Guidelines (1996) (“Peer reviewers cannot … have any personal financial or professional interests in the outcome of the review.”).

³¹This sequence of events is described in the letter from Hare's attorney, supra note 14, and was confirmed by Jennifer Skeem (personal communication). Professor Strauss declined to discuss with us any aspects of the editorial process (personal communication).

³²Letter from Hare's attorney, supra note 14.

³³Richard Hofstadter, Academic Freedom in the Age of the College (1996), at 61.

³⁴Philip G. Altbach, Academic Freedom in a Global Context: 21 ^st Century Challenges, The NEA Almanac of Higher Education 1 (2007) provides an overview of threats to academic freedom from several countries. Altbach discusses the governmental use of force to stifle free expression by academics, but also notes the periodic efforts to bring pressure on academicians in western countries, including the firing of professors who would not take loyalty oaths during the McCarthy era to more recent and more subtle threats emerging from the corporate financing of research.

³⁵Those who view the Patriot Act as a significant threat to academic freedom cite provisions of the Act that permit broad governmental access to records such as library records, documenting the activities of professors and students, as well as governmental reluctance to answer Freedom of Information requests, among other things. Douglas Toma, Academic Freedom at the Dawn of a New Century: How Terrorism, Governments, and Culture Wars Impact Free Speech (review). 79 J. of Higher Educ. 482 (2008).

³⁶For a review, see William G. Tierney, Vicente M. Lechuga, Academic Freedom in the 21 ^st Century, Fall NEA Higher Education Journal Thought & Action 7 (2005), at 13-18. Other legislation, not focused specifically on universities, can have an impact on academic freedom through control of the export of certain types of intangibles such as technical data thought to be important to national security. Bryan R. Reed, The United Kingdom's New Export Control Act of 2002 and Its Possible Impact on United Kingdom Universities and Academic Freedom: A Comparison of Export Control in the United States and the United Kingdom, 8 UCLA J. Int'l. L. & Foreign Affairs 193 (2003).

³⁷Kenneth Lasson, Scholarly and Scientific Boycotts of Israel: Abusing the Academic Enterprise, 21 Touro L. Rev. 989 (2006).

³⁸Larry Alexander, Horowitz, Churchill, Columbia—What Next for Academic Freedom, 77 U. Colorado L. Rev. 883 (2006).

³⁹A very good discussion of the impact of corporate funding of research, and how researchers and others might respond to maintain the integrity of reported findings, can be found in Gary Edmond, Judging the Scientific and Medical Literature: Some Legal Implications of Changes to Biomedical Research and Publication, 28 Oxford Journal of Legal Studies 523 (2008).

⁴⁰In re Grand Jury Subpoena, 583 F.Supp. 991(E.D. N.Y. 1984). Judge Weinstein compared the role of the researcher to that of a reporter, and concluded that the same interests underlying the limited privilege enjoyed by reporters applied to researchers.

⁴¹In re Grand Jury Subpoena Dated January 4, 1984, 750 F. 2d 223 (2d Cir. 1984). The court wrote “Given the present record, establishment of a scholar's privilege would require us to create virtually an unqualified and indeterminate immunity attaching generally to all academically related inquiries upon the bald assertion that someone was promised confidentiality in connection with the study. None of the arguments marshaled by the district court, taken at their strongest, support a privilege that broad. At best, they raise an arguable question as to the validity of a qualified privilege where a serious academic inquiry is undertaken pursuant to a considered research plan in which the need for confidentiality is tangibly related to the accuracy or completeness of the study.” Id. at 225.

⁴²At least one federal court has extended a privilege to researchers, based on legal principles that underlie a reporter's privilege to resist divulging sources. In In re Cusumano, 162 F. 3^rd 708 (1^st Cir. 1998) the first circuit court of appeals quashed a subpoena from Microsoft for the notes of two professors who had written a book about the “browser wars” between Microsoft and its competitors. In defending itself against antitrust claims brought by the federal government, Microsoft sought the professors' material on the ground that their notes of interviews with competitors could reveal information important to its defense. The court of appeals found otherwise, concluding that “as with reporters”, access to researchers' work product would result in a “drying up of sources” and important information to the public. Id. at 266. In other litigation, courts have required researchers' notes and related material to be made available, for example, compelling Dow Chemical to provide documents relating to three studies Dow claimed exonerated it from plaintiffs' claims that Dow's products had caused harm. Smith v. The Dow Chemical Company, 173 F.R.D. 54 (1997). At least one commentator, in discussing Cusumano and other cases, argues that a researcher's privilege should be grounded in the principle of academic freedom, rather than in the reporter's privilege, asserting that the reporter's privilege was designed to protect confidentiality of sources and that this need would apply only to certain types of research. In contrast, basing a researcher's privilege on academic freedom would have broader applicability. Rebecca Emily Rapp, In re Cusumano and the Undue Burden of Using the Journalist Privilege as a Model for Protecting Researchers from Discovery. 29 Journal of Law & Educ. 265 (2000). For a discussion of this issue in Canadian law, see Ted Palys & John Lowman, Protecting Research Confidentiality: Toward a Research-Participant Shield Law, 21 Canadian J. of Law & Soc'y 163 (2006).

⁴³509 U.S. 579 (1993).

⁴⁴526 U.S. 137 (1999).

⁴⁵For a comprehensive review, see William G. Childs, The Overlapping Magisteria of Law and Science: When Litigation and Science Collide, 85 Neb. L. Rev. 643 (2007). Childs also notes that the Daubert decision has given rise to what he characterizes as “litigation-driven scholarship,” that is, research and publication performed primarily to augment the admissibility of testimony offered by the researcher. This phenomenon has been noted and discussed by others as well. William L. Anderson, et al., Daubert's Backwash: Litigation-Generated Science, 34 U. Mich. J. L. Reform 619 (2001). Litigation involving the peer review process has become common enough that guides about peer review written for lawyers are beginning to appear. For an example, see Susan Haack, Peer Review and Publication: Lessons for Lawyers, 36 Stetson L. Rev. 789 (2007).

⁴⁶One commentator discussing discovery tactics (for example, subpoenas and depositions of those who participated in the peer review process) writes “Letting lawyers into the citadel of science in this way could weaken science's ability to assist the legal fact-finding process and to assist society more generally, by creating disincentives for scholars to participate in the peer-review process or to be fully honest in that process.” William G. Childs, supra note 45 at 645.

⁴⁷Restatement (Second) of Torts Section 558 (1977). Actual harm is not necessary; a statement may be defamatory regardless of whether actual harm occurred, but the absence of actual harm will affect the award of damages. Section 559.

⁴⁸Restatement (Second) of Torts Chapter 25 (1977). For the most recent discussion of the “fair comment” defense by the Supreme Court of Canada, see WIC Radio Ltd v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420. The United States Supreme Court established fair comment as part of constitutionally protected free speech in New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

⁴⁹Douglas W. Vick & Linda Macpherson, Anglicizing Defamation Law in the European Union, 36 Va. J. Int'l. Law 933 (1996). There have been efforts to standardize defamation law because of the significant impact that choice of national forum can have on the outcome of the case. These efforts are generally in the direction of broadening defenses to defamation, because such claims are viewed as a significant burden on free speech when wrongly brought. Note: Uncertainty from Abroad: Rome II and the Choice of Law for Defamation Claims, 32 Brooklyn J. Int'l. Law 269 (2006).

⁵⁰David Lowenthal, Academic Freedom: The Hiss Case Yields A Noteworthy Victory, 42 Perspectives on History (2004), available on-line at http://www.historians.org/perspectives/issues/2004/0405/0405vie1.cfm and accessed October 19, 2009 by author JP. In this British case, a former KGB courier sued publisher Frank Cass Ltd claiming he had been defamed in an essay by Lowenthal in a Cass publication. After trial, the jury found that the essay was defamatory (because a person would be likely to think less well of the former courier after reading it). However, the material was deemed a matter of opinion and fair comment, and so the defendant was acquitted.

⁵¹Bette Denich, Debate or Defamation? Comment on the Publication of Cushman's ‘Anthropology and Genocide in the Balkans’, 5 Anthropological Theory 555 (2005), in which Denich responds to what she considers a defamatory article misrepresenting her position on genocide in the Balkans. Denich writes that her best defense against her protagonist's accusations was the text of her own article.

⁵² See note 50.

⁵³Kwang Y. Cha sued Bruce Flamm, an obstetrician-gynecologist for defamation. Cha had published a paper in which he reported that women undergoing in vitro fertilization for whom prayers had been offered had an increased chance of becoming pregnant. Flamm wrote a commentary dismissing the results and claiming that one of the authors of the paper had been jailed for fraud. A trial court initially dismissed the case on the ground that the lawsuit lacked merit, but the case was then reinstated. California Court Reinstates Dr. Kwang Y. Cha's Defamation Lawsuit Against Dr. Bruce Flamm, Business Wire, January 25, 2008. Accessed on October 19, 2009 at http://findarticles.com/p/articles/mi_m0EIN/is_2008_Jan_25/ai_n24224101 by author JP.

⁵⁴Kate Bronfenbrenner, Director of Labor Research at Cornell, was sued by Beverly Industries, a nursing home provider, after Bronfenbrenner gave invited testimony before a congressional town hall on Beverly's employment practices. The lawsuit by Beverly attracted congressional support for Bronfenbrenner, and the lawsuit was eventually dropped. IRL's Bronfenbrenner Gets Congressional Support for Her Legal Battle, Cornell Chronicle, August 6, 1998. Accessed at http://www.news.cornell.edu/chronicle/98/8.6.98/Bronfenbrenner.html on October 19, 2009 by author JP.

⁵⁵A University vice-president sued a faculty member who maintained a website on which accusations of mismanagement were made against the vice-president. A Louisiana court of appeals dismissed the case ruling that the professor was exercising his right to free speech on a matter of public interest. Baxter v. Scott, 847 So. 2d 225 (2003).

⁵⁶Ralph D. Davis, New Censors in the Academy: Two Approaches to Curb Their Influence, 13 Sci. Technol. & Hum. Values 64 (1988), at 67, 69.

⁵⁷Canadian Association of University Teachers, Policy Statement on Defamation Actions Arising Out of Academic Activities, Preamble, November 2005. Accessed at the Association's website at http://www.caut.ca/pages.asp?page=260&lang=1 on October 19, 2009 by author JP.

⁵⁸Robert R. Kuehn, Suppression of Environmental Science, 30 Am. J. L. & Med. 333, 363 (2004). Michael Kent Curtis has written that “regardless of the outcome, long and expensive libel suits may have a chilling effect, not only on false ideas, but also on those that are true, and on those whose truth is problematic. Critics may be intimidated by the possibility of libel actions.” Monkey Trials: Science, Defamation, and the Suppression of Dissent, 4 William & Mary Bill of Rights Journal 507, 531-532, 1995-1996.

⁵⁹Robert R. Kuehn, supra note 58, at 348.

⁶⁰ Ezrailson v. Rohrich, 65 S.W. 3d 373, 382 (Tex. App. 2001).

⁶¹ Underwager v. Salter, 22 F. 3d 730 (1994) at 736. Some judges have observed that judges ‘are not well equipped to resolve academic controversies… scholars have their own remedies for unfair criticisms of their work—the publication of a rebuttal. Unlike the ordinary citizen, a scholar generally has ready access to the same media by which he is allegedly defamed”. Dilworth v. Dudley, 75 F. 3d 307 (1996) at 309.

⁶² See notes10-12 and accompanying text.

⁶³ See notes 20-34, supra, and accompanying text.

⁶⁴These interviews were conducted by NP. A third new Ph.D. reported that learning of Dr. Hare's threat of litigation had been unsettling, although he or she did not believe that it would affect current and future career plans regarding psychopathy research. All three individuals requested that we describe their responses without attribution, with some explicitly stating a fear that “going public” in this matter might adversely affect their careers in the long term if they did ultimately decide to continue studying psychopathy. Thus, the names of these individuals are not reported here.

⁶⁵ See references at note 20 and accompanying text.

⁶⁶ Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

⁶⁷ Id. at 594.

⁶⁸ See notes 25-27 and accompanying text.

⁶⁹For periodic reviews of reported cases citing the PCL-R, see David DeMatteo & John F. Edens, The Role and Relevance of the Psychopathy Checklist – Revised in Court: A Case Law Survey of U.S. Courts 1991-2004, 12 Psychol. Pub. Pol'y & L 214 (2006), and Tiffany Walsh & Zach Walsh, The Evidentiary Introduction of Psychopathy Checklist-Revised Assessed Psychopathy in U.S. Courts: Extent and Appropriateness, 30 Law Hum. Behav. 493 (2006).

⁷⁰ Underwager v. Salter, supra note 61.