New York Attorney Warns of “Junk Science” and “Trial by Literature”

Michael Hoenig

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

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.

10 Responses to New York Attorney Warns of “Junk Science” and “Trial by Literature”

  1. For better or worse, the recent U.S. Supreme Court decision protecting the privacy of cell phones from warrant less wiretapping mentions the potential aid to gang communication as a cost of protecting the greater good. Open access journal business models with APC charges do serve the greater good of many serious readers that cannot afford individual or institutional subscriptions. It is the increasing cost of predatory paper mills that cries out for continued reader education in blogs like this.

  2. Ken Lanfear says:

    It’s even scarier when unworthy articles are quoted in the political arena. At least in court, opposing counsel has the opportunity to question a journal’s validity.

  3. “Under the subscription model, libraries and individual subscribers would cancel the subscriptions of journals that published faulty research or that otherwise underperformed.”

    But will anyone unsubscribe from Nature because they published the “STAP” stem cell papers?

    • Couldn’t agree more. Equally, libraries can’t cancel one part of a “big deal” they are tied into just because a particular journal is low quality. Mr Beall’s remark is simply untrue.

      • herr doktor bimler says:

        The librarians at my university would rather not subscribe to “Medical Hypotheses”, for instance, but under their package deal with Elsevier, they do not have that option.

  4. […] New York Attorney Warns of “Junk Science” and “Trial by Literature” by Jeffrey Beall […]

  5. coppenheim says:

    “Although Mr. Hoenig doesn’t use the term “predatory publishers,” …………….”

    Yes, that’s because the term is not generally used except by Mr Beall himself.

  6. […] New York attorney is warning of “junk science” and “trial by literature,” Jeffrey Beall […]

  7. Anil Awad says:

    I am willing to join the team.

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