Capture & Academic Punitive Damages Research
Today’s punitive damages decision in Exxon is a wild piece of work, which tears the remaining guts out of punitive damages practice in the United States, and I’m still digesting it. But on the first read, one particular footnote from Justice Souter’s majority opinion stood out. In a section of the opinion relying heavily on Ted Eisenberg, Michael Heise, Martin Wells, Paul Hannaford-Agor, Neil LaFountain, G. Thomas Munsterman, and Brian Ostrom’s work on the variance in punitive damage awards, the Court takes a strong shot against Cass Sunstein and others who have studied juries in the laboratory. Here’s what the Court said about that work:
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.
I agree with this skepticism about these particular mock jury studies, as I argued here, and here, and as Neil Vidmar, Denise Antonili, Richard Lempert, and others have discussed. But I was still fairly shocked to see the Court acknowledge the problem of deep capture in such an open way.
By the way, the fact that the Court et al.’ed the punitive damages empirical work (led by the ELS-folks at Cornell) is more evidence of my thesis that the bluebook hurts interdisciplinary contributors by reducing the recognition of their work.
[Update: For a defense of the Exxon-funded studies, and more thoughts about the footnote, check out Rick Hasen's post.]