Tuesday, November 25, 2008
Today's New York Times has a wonderful column by Adam Liptak, "From One Footnote, a Debate Over the Tangles of Law, Science, and Money," available here. The article discusses footnote 17 in the U.S. Supreme Court's opinion in Exxon v. Baker, handed down in June, 2008. In 1989 the Exxon Valdez struck a reef and spilled 11 million gallons of crude oil into Prince William Sound in Alaska. A jury awarded 32,000 Alaskan natives, landowners, and commercial fishermen $507 million in compensatory damages and $5 billion in punitive damages. The Ninth Circuit, on appeal, had reduced the amount of punitive damages to $2.5 billion. The U.S. Supreme Court, in a 5-3 decision, said, through Justice Souter, that the punitives should be further reduced to $500 million on the ground that there should be a ratio of compensatory to punitive damages of one-to-one, at least in admiralty cases.
In footnote 17, Justice Souter had written,"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."
What has caused a stir is the final line in the footnote. And understandably so. The articles and authors cited there are all excellent scholarship and first-rate scholars. The implicit criticism of their work as being advocacy rather than scholarship is unfortunate. I fully understand the worry that research funded, even in part, by a party to litigation could be tainted. But I think that there is something deeper going on here. To begin, one of the central skills that we teach in law school is advocacy, which means, among other things, putting your client's case in the best possible light. There are, of course, constraints on what a legal advocate may do in representing her client's case. Nonetheless, there is a sensible fear on the part of some legal decisionmakers, such as judges, that those constraints are not sufficient for the decisionmaker to rely upon the advocate's assertions. Why? Two reasons. First, the adversary's client may cite assertions to the contrary. And second, the decisionmaker feels unequipped to evaluate the assertions.
I think that one could make a case that most legal decisionmakers are equipped to evaluate scholarly work in the law. What they may feel unequipped to evaluate are empirical results. And if so, that is a terrible shortcoming in our method of legal education. An increasing number of policy and legal issues involve empirical evidence, and as a result, lawyers ought to have the skills to look at that work critically.
The scholars whose work Justice Souter declined to use in resolving the case were not writing as advocates. They were writing as scholars. And there is a subtle but very important difference between being an advocate and being a scholar. Two colleagues (Jen Robbennolt and Bob Lawless) and I have wrestled with this difference in a course that we jointly teach in empirical methods. We ask our students to do an empirical project and present the preliminary results to the class. The presentations always serve as the occasion to talk about the difference between advocacy and scholarship. What is the difference? Among other things, the scholar's duty is to the truth and to balanced inquiry. The scholarly community values transparency, so that the scholar should be prepared to share her data. Indeed, following the practices of most peer-reviewed journals, we require our students to submit their data along with their final papers. There is also a scholarly norm by which scholars build upon the work of others, criticizing others gently, if at all. The presumption is that the scholarly community is collegial and cumulative, working jointly ("standing on the shoulders of giants," to use Newton's marvelous phrase) to reach a mutually shared goal -- better understanding. This is not to say that there isn't fierce competition in the scholarly community. Of course there is. And, of course, there are mistakes made in scholarly work, even fraud. But the peer review process (by which I mean the presentation to conferences, scholarly seminars, and the like; the review of work before publication; and the evaluation of a scholarly record for promotion and tenure) generally catches those. In short, the scholarly norms, the prudent concern of the scholar for his or her reputation, and the peer review process generally weeds out scholarship that is mere advocacy.
With respect to the particular articles and scholars cited in footnote 17 of Exxon v. Baker, I find it inconceivable that those articles or scholars could have confused advocacy and scholarship. The Justices could have and should have relied on the literature cited there.