August 1, 2008

Ever since the high court's punitive damage decision in Exxon Shipping, commentators have been abuzz about Justice Souter's footnote disclaiming reliance on a major set of studies of jury behavior on the grounds that they had been in part financially supported by Exxon, a party in the case. The studies in question -- which had drawn on the participation of top-ranked academics including Chicago's Cass Sunstein -- had been ferociously attacked in the press as tainted by the funding, even though support of similar research by interested parties hardly counts as in any way unusual; in particular, earlier rounds of widely cited research on punitive damage issues were supported by plaintiffs' lawyer interests. Indeed, litigation-relevant research is carried on (and is taken under court consideration) in a variety of other settings every day with support from litigants.

Justice Souter appears to agree with the basic thrust of the jury-predictability studies. So why did he find it necessary to hold them at a distance as if with tongs, to avoid cooties? We may never know for sure, but Ron Coleman at Likelihood of Confusion offers what seems at least plausible psychological speculation.