April 26, 2011
Footnote of the Day: Who Funded Those Studies?
In footnote 17, the Court wrote
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 Plaintiff's 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.
Exxon Shipping Co. v. Baker, 554 U.S. 471, 501n.17 (2008).
The case resulted from the spilling of oil from the supertanker Exxon Valdez and the issue was one of the parameters of punitive damages under "maritime common law," but the resonance of footnote 17 is potentially far-reaching. Indeed, today's oral argument in IMS v. Sorrell involving studies funded by "big pharma" may raise similar concerns.
The Stanford Law and Policy Review put on a symposium on the issue of academic integrity in 2010, including Lee Epstein, Academic Integrity and Legal Scholarship in the Wake of Exxon Shipping Footnote 17, 21 Stan. L. & Pol’y Rev. 33 (2010), and Thomas O. McGarity, A Movement, a Lawsuit, and the Integrity of Sponsored Law and Economics Research, 21 Stan. L. & Pol’y Rev. 51 (2010) (both available on westlaw and lexis).
with J. Zak Ritchie
[image: Oil Cleaning After Exxon Valdez Spill, Prince William Sound, via]
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