26 June 2008
A few bloggers at other sites (Concurring Opinions and Election Law Blog) have pointed out an interesting footnote in the Supreme Court's recent decision on punitive damages in the Exxon Valdez case. Justice Souter took note of experimental research on jury decisionmaking done by Cass Sunstein, Daniel Kahneman, and others, but then dismissed it for the purposes of the decision because Exxon had contributed funding for the research:
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.
It will be interesting to see whether this position is taken up by the lower courts; if so, we might see less incentive for private actors to fund social science research. That could be good or bad, I suppose, depending on one's views of likelihood that researchers will be unduly influenced by their funding sources.