Likelihood of persuasion

Originally posted 2008-07-28 09:44:58. Republished by Blog Post Promoter

Rick Hasen expresses understandable concern over a footnote in the recent Supreme Court opinion in Exxon Shipping Co. v. Baker, suggesting that a certain set of studies is not worthy of consideration because it was “litigant-funded.” Here’s the 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. [Citations to the literature.] Because this research was funded in part by Exxon, we decline to rely on it.

Hasen is understandably worried …

There will be cases . . . in which there are no extant studies on an empirical question at the heart of a case. At that point, it makes sense for litigants to fund such research. Indeed, when such research appears in an expert report subject to cross-examination, I assume the Court has no problem relying upon the evidence. So why should it be different when a litigant funds the research, particularly if the research has gone through peer review and of course if the funding source is disclosed so that the opposing side may probe for bias?

It’s idiotic, if there is indeed such a rule. We may as well also end expert testimony, considering that their reports, indeed their testimony, are also “funded” by the litigants proffering them. The WSJ Law Blog is less bothered:

Hugh Young of the Product Liability Advisory Council, one of the organizations that cited the study, says the footnote is “peculiar,” but adds, “I wouldn’t take it as a slap in the face. You don’t have to worry about Exxon buying out the Yale Law Journal.”

I wouldn’t either. I think, in fact, that the footnote must have been political prophylaxis by a pretty political justice. As the WSJ blog asks, “Why would Souter go out of his way . . . to disparage research that supported his concern about the unpredictability of jury awards?” Among those casually “dissed” by this footnote were no less a scholar than the eminent Cass Sunstein.

Well, here’s the thing: It’s the Supreme Court. Souter already knows how he is going to come out on this — Souter is writing a majority opinion overturning the $2.5 billion punitive damage award in the Exxon Valdez case. He doesn’t have to “support” his opinion as against appellate review, but he does have to face his friends in Georgetown who may not like his intellectually honest vote against a preferred liberal outcome. Why not distance the court from any accusation that it was taken in by supposedly bought- and- paid- for studies? It looks as if Souter is essentially saying, “Don’t even start up with us about those studies and who paid for them. We don’t need them to come to this conclusion, and in order to even avoid the accusation of being blind to bias regarding one of the world’s richest companies, we decline to rely on this stuff. Move on, nothing to see here.”

We can live with that … right?

The only problem with this hypothesis is that affirmatively ignoring something is much more compelling when you don’t actually, uh, write about it. Of course that may have been necessary to effect the necessary distancing. How else would you refute the argument that the studies influenced you?

Well, we decline to worry about that.

(Hat tip to Bill Gratsch.)

Cross-posted on Likelihood of Success.

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Author:Ron Coleman

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