Midway through his majority opinion in Exxon Shipping Co. v. Baker, (1) Justice Souter inserted a short, three-sentence footnote:
The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous "mock juries," where different "jurors" are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L. Rev. 1139 (2000); Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of PlaintifFs Requests and Plaintiff's Identity on Punitive Damage Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 Yale L.J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it. (2)
To the casual reader, Footnote 17 seems innocuous enough. But to members of the scholarly and legal communities it is anything but bland. Perhaps not since Footnote 4 in United States v. Carolene Products (3) or Footnote 11 in Brown v. Board of Education (4) has a footnote in a Supreme Court opinion generated so much debate. (5)
Why has this little footnote created such a big stir? Part of the answer is that Footnote 17 is akin to the beast in the tale of the blind men and the elephant. In an effort to "see" the elephant, each man touches a different (but only one) part: the elephant's leg, its tail, and its trunk. As a result, the men can't agree on whether the elephant looks like--a pillar, a rope, or a tree.
And so it goes with Footnote 17. When experimentalists read it, they tend to focus on the first sentence and express resentment at Justice Souter's use of a second set of quotes around the word "jurors." To them, the scare quotes mock experiments for their failure to capture the experience of serving on a real jury. (6)
To legal academics working in the area of punitive damages, the second sentence of Footnote 17--the string citation--moves to the fore. In their corner of the world, the footnote reignites fierce debates over the various studies Justice Souter cites. (7) Representing one side, Jeffrey Rachlinksi argues that "[t]he Justices say they did not rely on the [studies] Exxon funded, even though it is actually very good work AND they seem to have been affected by it." (8) On the other side, David Hoffman--among other important academics (9)--has expressed agreement with the Court's "skepticism" about the cited works. (10)
The third and final sentence of Footnote 17 ("Because this research was funded in part by Exxon, we decline to rely on it.") also has been the subject of much discussion, especially among those who conduct empirical research. But while the first two sentences of Footnote 17 have generated debate and even resentment, the reaction to the third sentence has been almost uniformly positive. Even those who disagree over the value of the cited studies praise sentence three. As Rachlinkski wrote, the Justices "disparage funded studies in Footnote 17. Now, I agree funded studies can be suspect ... so maybe that is a good move." (11) Hoffman put it this way: "I was ... fairly shocked to see the Court acknowledge the problem of deep capture in such an open way." (12) Hoffman and Rachlinski are hardly alone. When we looked over the existing commentary, we came across only one scholar who questioned the Court's refusal to rely on the cited studies; (13) the other commentaries all expressed enthusiasm for the Court's approach. (14)
For the reasons we lay out in Parts I and II, the exuberance over Footnote 17 may be understandable, but at bottom we think it is misguided: courts and …