A Movement, a Lawsuit, and the Integrity of Sponsored Law and Economics Research
McGarity, Thomas O., Stanford Law & Policy Review
Of the thousands of footnotes in the thousands of opinions that the Supreme Court of the United States has published over the years, (1) very few capture the attention of the national media. (2) Footnote 17 of Justice Souter's majority opinion in Exxon Shipping Co. v. Baker, (3) decided in June 2008, may turn out to be one of those rarities. (4) In that case, which involved Exxon Shipping Company's challenge to a $4.5 billion punitive damages award in the notorious Exxon Valdez litigation, the Court had to decide the limits that federal maritime law placed on punitive damage awards. After examining punitive damages in historical perspective, the Court penned a brief summary of recent critiques and defenses of punitive damage awards in civil litigation, most of which it drew from the academic literature. At the end of this discussion, the Court dropped footnote 17.
The footnote noted the Court's awareness 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." (5) After providing numerous citations to the mock jury research, the Court added the following: "Because this research was funded in part by Exxon, we decline to rely on it." (6) One could read the footnote as a veiled endorsement of the research, which does support the Court's conclusion that the $4.5 billion award was far too high, with an associated caveat that the Court was not relying on it because of its provenance. Alternatively, one could interpret the footnote as an expression of concern about the integrity of the appellate process and a warning to future Supreme Court litigants that efforts to affect the outcomes of their appeals by funding citable research are likely to fail. I take the latter view, and I commend Justice Souter for issuing the warning. The extent to which the Court, in Justice Souter's absence, will continue to avert its eyes from sponsored research remains to be seen.
As the Court observed (and as discussed in more detail in this Article), the research was supported by the parent company of the defendant in the litigation, and it was supported for the particular purpose of giving the company and its allies empirical ammunition for their argument that punitive damage awards by juries were inherently arbitrary. The company got what it paid for. The research did support its position, and it was able to bring it to the Court's attention through several amicus briefs. (7) One of the Exxon employees who approached the law professors and psychologists who undertook the research noted that, despite the disclaimer, "the arguments the justices used in part reflected the conclusions of the studies." (8)
Exxon's attempt to affect the outcome of a particular legal proceeding by sponsoring academic research relevant to the judicial resolution of the claims in that proceeding raises profound questions about the integrity of policy-relevant research that is directly sponsored by entities with an economic or ideological stake in the policy or legal implications of that research. Many of the same questions are raised by the broader attempt by the Olin Foundation, several other conservative foundations, and the business community to advance their minimalist view of the role of government in society by supporting the fledgling law and economics movement in legal academia during the early 1980s. Like the Exxon-sponsored research, the sponsored law and economics research was for the most part undertaken by academics at academic institutions. Although academic institutions gratefully accept funding from private foundations and corporations to support their ongoing research programs, they are not in the business of providing research for hire to entities shopping for research that advances their economic or ideological agendas. Academic researchers and academic institutions abide by certain scholarly norms that are designed to ensure the integrity of their research and thereby protect their reputations among their peers and peer institutions. …