Today’s Supreme Court decision in the Exxon case relies
heavily upon the empirical literature to punitive damages to evaluate the availability
and scope of punitive damage awards under maritime law. See footnote 13 (citing several studies shows
that punitive damages were on the rise between the 1960s and 1990s but
acknowledging more recent research, including Eisenberg, Heise, et al., Juries, Judges, and Punitive Damages:
Empirical Analyses Using the Civil Justice Survey of State Courts 1992, 1996,
and 2001 Data, 3 J. OF EMPIRICAL LEGAL STUDIES 263, 278 (2006), which
document flat or decreasing punitive damage awards).
After a review of the empirical literature of punitive damages, including the relationship between punitive and compensatory awards, the Court concluded that the real issue it confronted was the "stark unpredictability of punitive awards." The Court continues, "We are aware of no scholarly work pointing to
consistency across punitive awards in cases involving similar claims and
circumstances." There are, however, studies based upon mock juries; the Court dismissed them because they were funded in part by Exxon. See footnote 17.
[I am familiar with many of the authors and studies cited in footnote 17and it] is really top notch work.
So I find this footnote troubling. There will be cases (including
election law 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?
Good question.
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