The peer reviewers and editor wanted to publish my paper. The legal team rejected it.

Move over, Reviewer 2: The legal reviewer wants your job. 

Last month, I was relieved when the journal Research Ethics published my article, “The Use of Confidentiality and Anonymity Protections as a Cover for Fraudulent Fieldwork Data.” One unexpected hurdle had almost thwarted publication. The problem wasn’t with the proverbial hard-to-please peer reviewer called Reviewer 2. Rather, the problem was with a behind-the-scenes reviewer of a different sort, Legal Reviewer 1.

I suspect that many authors have never heard of a legal reviewer. Yet depending on your research topics, you may have had your manuscripts delayed—or even rejected—without ever knowing of the powerful influence of persons in that role. In my case, the journal editor was candid in telling me that my manuscript would be sent to a “legal team” after clearing peer review.

Peer review and legal review are separate and unrelated processes. Peer reviewers are experts in the field who judge whether a manuscript makes a genuine disciplinary contribution to knowledge. Not so with legal reviewers: they likely have no expertise in the field and judge manuscripts from a standpoint extraneous to the principles of the discipline.

I submitted my manuscript (Version 1) to Research Ethics — published by SAGE — in August 2019. Due to a change in editorship, the manuscript wasn’t assigned to peer reviewers until February 2020, but in April I received two sets of supportive comments. The first reviewer was brief, recommending publication and suggesting two corrections. The second reviewer was not brief, providing eight single-spaced pages of comments. Revising the manuscript in light of both sets of comments strengthened it considerably (and increased its size by over a third). Peer review worked: experts identified some weaknesses in my manuscript and their insightful suggestions guided my revisions. I then submitted the revised manuscript (Version 2) to Research Ethics within a specified 30-day window. In early June 2020, the editor expressed support for publication but provided an additional set of comments, so I revised and submitted again (Version 3).

My manuscript considered how anonymization techniques in the social sciences enable inauthentic researchers to generate fraudulent fieldwork data. It contained a case study examining a 2017 article in the journal Communist and Post-Communist Studies. I showed that all the anonymized fieldwork quotations presented in that 2017 article are patently unreliable: each purported fieldwork quotation corresponds to a sentence of scholarly analysis found in previously published articles by other authors that appeared in print years before the interviews were alleged to have taken place. This form of research misconduct seemed to me to be unusual and distinctive, partaking simultaneously of all three major categories of research misconduct: fabrication, falsification, and plagiarism. 

Despite the support of the two peer reviewers and the editor for publishing my manuscript, I received an update on June 24, 2020: Legal Reviewer 1 had rejected the manuscript. 

I learned many things from the rejection report: (1) my manuscript was viewed by the legal team as “too problematic”; (2) my case study was regarded as merely an accusation, not a demonstration of data fabrication; (3) my discovery of the true sources of the fieldwork quotations was considered to be merely an opinion; and (4) the legal team judged there was no hard evidence in the public domain of data fabrication.

All these claims troubled me. The journal’s academic experts—the two peer reviewers—had already scrutinized my evidence and argumentation and found it publishable. Version 2 of the manuscript had included references to the author of record’s many retractions and had cited Retraction Watch’s reporting on some of the cases, but these references had been removed in Version 3 at the request of the editor. I asked the editor whether I could restore this “hard evidence in the public domain” and resubmit the manuscript, with the thought that doing so could allay the concerns of Legal Reviewer 1. Upon getting approval to do so, in July 2020 I resubmitted a revised manuscript (Version 4) that included a new section discussing in detail the 11 retractions that had appeared at that point for data fabrication and plagiarism.

The next month, August 2020, Legal Reviewer 1 rejected the manuscript a second time. The key point was that the particular 2017 article discussed in my case study had itself not been retracted; the many other retractions for data fabrication and plagiarism were apparently judged irrelevant. So again, my scholarly analysis was regarded as merely doxastic and accusatory, not scientific and demonstrative. Legal Reviewer 1 had rendered a final judgment: only if that 2017 article were to be retracted would Research Ethics publish my manuscript.

I wondered at the time whether any other manuscript author had ever been in my position: if I can get one journal to issue a retraction, then another will publish my article. To put the matter in another way: the decision to publish my manuscript in Research Ethics now hinged on a decision by an editor at another journal. This situation seemed odd. 

My one consolation was that securing retractions is not new to me; with colleagues I have requested retractions for more than 150 articles since 2009 in a variety of academic fields. Perhaps an author without my background would have given up.

Legal Reviewer 1’s apparent inability to digest the demonstrative evidence of data fabrication troubled me. In every version of the manuscript, I had been careful to use the qualified expression “suspected data fabrication” throughout. Furthermore, I had restricted myself to publicly available evidence that anyone could verify. 

This situation had larger ramifications beyond whether I would be able to publish my manuscript. An academic and scientific claim was being rejected by an outsider, for reasons unrelated to the integrity of science. I am under no illusions about the significance of my research; I contribute only in a small way to the larger world of learning. Nevertheless, my experience highlights of a key feature in scientific communication: researchers have largely abdicated the control of scientific publication to third-party publishers. In the present-day system, the judgment of peer reviewers with disciplinary expertise is not necessarily the principal arbiter of what warrants admittance to the body of published research literature. A system that operates in this way seems to me detrimental to academic and scientific progress. 

My professional investment in the dissemination of research is not only as a researcher and manuscript author, but also as a peer reviewer. A considerable amount of my academic time in recent years has been spent on reviewing manuscripts for other journals and book publishers. But now I wonder to what extent Legal Reviewer 1 has been lurking behind the scenes, undermining my work as a peer reviewer after I have submitted recommendations to publish. 

It turns out that Legal Reviewer 1 has likely been thwarting me for years in yet another capacity. Occasionally when communicating with a publisher about a case of research and publication misconduct, a publisher will tell me and my colleagues that the precise wording of a forthcoming retraction is being checked by the publisher’s legal team. The retractions coming out of legal review are sometimes the most opaque and euphemistic retractions that I have seen. (The problem of unhelpful retraction notices is well known to readers of Retraction Watch.) 

Confident in my research, I thought about how best to approach Communist and Post-Communist Studies to secure a retraction of the 2017 article. Prior to submitting to Research Ethics, I had first tried my manuscript there, but it had been quickly rejected by the then-editors-in-chief. They had recommended I submit to a journal specializing in ethics in the social sciences. Communist and Post-Communist Studies had just appointed a new editor, so in August 2020, I wrote to the new editor and requested a retraction of the 2017 article, appending the evidence from the case study.

In response, in April 2021, Communist and Post-Communist Studies published a lucid retraction of the 2017 article that explained, “The author fabricates interview data in attributing quotes to respondents that previously appeared in published works by other authors” and “the article contains substantial unattributed material.” The retraction that I needed to publish my manuscript—and that the scholarly record needed to have its reliability restored—had appeared.

In light of this development, I added a postscript at the very end of my manuscript that referenced this new retraction. It was important to me that discussion of the retraction be separate from the main text in the manuscript. Welcome though it was, the retraction was immaterial to the integrity of my analysis, argumentation, and conclusions. I had demonstrated the data fabrication in a scientific way, and the truth of the data fabrication was not tethered to the recent retraction. I submitted again to Research Ethics (Version 5) in April 2021. The editor had additional comments so I made some more revisions (Versions 6-7), and the article was published on May 22, 2021, some 21 months after initial submission.

The interventions begun by Legal Reviewer 1 in June 2020 delayed the publication of the manuscript by about a year. At no point during any of the revisions of the manuscript (Versions 1-7) was the evidence of data fabrication augmented or strengthened; all the improvements were to other parts of the manuscript. The delay was not without cost; researchers during this period have unwittingly treated the defective 2017 article as reliable, and very recent positive downstream citations to it now include a 2021 journal article and a 2021 book chapter. (Earlier positive citations are present in a 2018 report commissioned by the UK Government’s Department for International Development, a 2018 case study by a think-tank organized by Radboud University, and a 2019 thesis from Linnaeus University.)  

Positive citations to this now-retracted 2017 article are likely to continue. Although the retraction statement appears with the article on the University of California Press website, the retraction is not (at the time of this writing) found in the two other official gateways to the 2017 article (Elsevier ScienceDirect and JSTOR).

At the end of my article, I thanked both peer reviewers and the editor of Research Ethics for supporting publication. The publication process involved extensive correspondence with the editor, and I suspect that publishing my manuscript involved a much-greater-than-average time investment. 

As a result of this publication odyssey, I no longer worry too much about the proverbial Reviewer 2. I worry more about Legal Reviewer 1, who can quietly intervene after successful peer review processes and halt publications.

Michael Dougherty is Professor & Sr. Ruth Caspar Chair in Philosophy at Ohio Dominican University and the author of Disguised Academic Plagiarism: A Typology and Case Studies for Researchers and Editors.

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