Michael Hoenig
New York attorney Michael Hoenig is the author of the column “Complex Litigation” that appears in the New York Law Journal. He works for the law firm Herzfeld & Rubin.
I read these two recent columns by Mr. Hoenig in which he describes the problems of using scholarly articles in court cases:
‘Unreliable’ Articles, ‘Trial by Literature’ Revisited (May 12, 2014)
‘Unreliable’ Articles: More on Peer Review’s Frailties (June 9, 2014)
Although Mr. Hoenig doesn’t use the term “predatory publishers,” he certainly seems to be aware of and understand some of the problems these journals cause.
Referring to them, in his May 12 article, Mr. Hoenig writes,
Many so-called “open-access” journals that accept articles charge the author a fee. That dynamic seems to create potential conflicts of interest. Many of these journals publish articles without peer review. Others do a so-called peer review that is laughable and porous.
New York Law Journal
He refers to some scholarly literature as hearsay and warns that, in court, journal articles cannot be cross-examined. As a litigator, he is especially aware of the problems predatory publishers cause in litigation. He continues,
Sometimes, the quality and trustworthiness of professional writings fall between the extremes of “reliability” and “junk,” into a vast gray area of “quasi-reliability” or “not-quite-reliable” or “not-quite-junk.” The articles may be published by journals with professional-sounding names or by institutions or entities recognized in the technical world, thereby creating an aura of trustworthiness that masks the diminished quality of the substantive content—existing somewhere along the scale in the gray zone (perhaps with enough slivers of accuracy thrown in to help disguise the “junky” portion). What happens when the expert relies on such less-than-reliable professional literature? What should be the consequences of such reliance?
This sounds like a description of predatory journals to me. Predatory publishers are beginning to have a negative influence beyond academia. Researchers aren’t the only consumers of scholarly research — other professions, such as law, clinical medicine, and public policy — extensively rely on it.
In his June 9 column, Mr. Hoenig concludes,
Similarly, if courts, willy nilly, infer reliability of the hearsay simply because it was published, the courts are ignoring realities of the publishing marketplace, hampering the justice system in its search for the truth and defaulting on their judicial gatekeeping task.
This statement highlights the new reality that predatory journals have created. No longer can one rely on research just because it was published in a scholarly journal. Predatory journals are essentially counterfeit, accepting much bogus and sloppy research just to earn the author fees.
Under the subscription model, libraries and individual subscribers would cancel the subscriptions of journals that published faulty research or that otherwise underperformed. Subscribers had a powerful voice in the market, a voice that played a very effective role in quality control. Open-access publishing models remove this voice; consequently, we are seeing an increase in the publication of junk science.
