Bent Research
posted by Frank Pasquale
Jeffrey Rosen’s fascinating piece Supreme Court Inc. is a must-read for anyone interested in business cases before the Court. It helps unravel (among other mysteries) why Judge Luttig may have been the “wrong type of conservative” for business interests deeply concerned about the composition of the Court. Rosen’s piece also explores the extraordinary influence of corporations in encouraging certain directions in research by legal scholars, as this excerpt suggests:
In 1989, the Exxon Valdez tanker, whose captain had a history of alcoholism, ran into a reef and punctured the hull; 11 million gallons of oil leaked onto the coastline of Prince William Sound. A jury handed down a $5 billion punitive-damage award. After the verdict, Exxon began providing money for academic research to support its claim that the award for damages was excessive. It financed some of the country’s most prominent scholars on both sides of the political spectrum. . . .
Exxon’s role here reminded me of a fantastic presentation by Prof. Wendy Wagner on “Bent Science” (a phenomenon she will also explore in a forthcoming book co-authored with Thomas McGarity). Here are the questions Wagner and McGarity will be asking:
What do we know about the possible poisons that industrial technologies leave in our air and water? How reliable is the science that federal regulators and legislators use to protect the public from dangerous products? As this disturbing book shows, ideological or economic attacks on research are part of an extensive pattern of abuse.
Thomas O. McGarity and Wendy Wagner reveal the range of sophisticated legal and financial tactics political and corporate advocates use to discredit or suppress research on potential human health hazards. Scientists can find their research blocked, or find themselves threatened with financial ruin. Corporations, plaintiff attorneys, think tanks, even government agencies have been caught suppressing or distorting research on the safety of chemical products.
I plan to review the book as soon as it is released. It looks like it will be an important read, especially in light of a growing “deregulatory presumption” at the Supreme Court and the quasi-scientific status of some economics research.
March 16, 2008 at 3:13 pm
Posted in: Economic Analysis of Law
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Responses (2)
Patrick S. O'Donnell - March 16, 2008 at 4:35 pm
Frank,
I blogged about several recent titles having to do (more or less) with “bent science” at the Medical Humanities Blog in early February: http://www.medhumanities.org/2008/02/cancer-and-our.html#comments
In a comment to the post I mention several other helpful books on topic and here I would add David B. Resnik’s The Ethics of Science: An Introduction (1998) and Kristin Shrader-Frechette’s Ethics of Scientific Reasearch (1994). Of course work in the fields of “social epistemology” and “science and technology studies” are likewise invaluable.
dave hoffman - March 16, 2008 at 10:01 pm
There is lots more on the Exxon front: Denise E. Antolini, Punitive Damages in Rhetoric and Reality: An Integrated Empirical Analysis of Punitive Damages in Hawaii, 1985-2001, 20 J.L. & POL. 143, 151-53 (2004); Theodore Eisenberg, Damage Awards in Perspective: Behind the Headline-Grabbing Awards in Exxon Valdez and Engle, 36 WAKE. FORR. L. REV.1129, 1147-49 (2002); Neil Vidmar, Juries Don’t Make Legal Decisions! And Other Problems: A Critique of Hastie et al. on Punitive Damages, 23 LAW & HUM. BEHAV. 705, 713 (1999); Richard Lempert, Juries, Hindsight, and Punitive Damage Awards: Failures of a Social Science Case for Change, 48 DEPAUL L. REV. 867, 871 n.16 (1999) (”[I]t appears that Exxon is making a concerted effort to build a social science case for reducing or taking away the jury’s discretion in awarding punitive damages and that the Hastie and Viscusi study is a part of this effort. … Indeed, Exxon has recently cited the above research [about jury behavior] in its appeal of the $5.3 billion Exxon Valdez award.”).
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