The Situation of Policy Research and Policy Outcomes

Yesterday, Adam Liptak published a nice article , “From One Footnote, a Debate Over the Tangles of Law, Science and Money,” in the New York Times.  In it he explores the dubious role of Exxon on the legal scholarship regarding punitive damages.

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Two years after Exxon was hit with a $5 billion punitive damages award for the Exxon Valdez disaster, Prof. William R. Freudenburg’s phone rang. The call propelled him, the professor said the other day, into “an ethical quagmire of the bottomless pit variety.”

The caller was an Exxon engineer who wanted to pay the professor to conduct a study taking a dim view of punitive damages. The Exxon Valdez case would eventually reach the Supreme Court, the engineer said, and the study would be useful in convincing the court that punitive damages make little sense, especially if it was published in a prestigious academic journal.

Professor Freudenburg, who now teaches sociology at the University of California, Santa Barbara, took Exxon’s money and conducted preliminary research. Exxon stopped supporting the study when the early findings did not point in a direction helpful to the company. But Exxon did help pay for several studies critical of punitive damages that appeared in places like The Yale Law Journal and The Columbia Law Review.

As the engineer predicted, the case did reach the Supreme Court. In a 5-to-3 decision in June, the court said the appropriate punishment for dumping 11 million gallons of crude oil into Prince William Sound in Alaska in 1989 was no more than about $500 million, a tenth of what the jury had awarded.

But the court also addressed the aggressive effort to reshape the academic debate over punitive damages. “Because this research was funded in part by Exxon,” Justice David H. Souter wrote in a footnote that has rocked the legal academy, “we decline to rely on it.”

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Science and the law have always had a tricky relationship, but it gets especially tangled in the appeals courts.

Whatever may be said about questionable scientific evidence submitted at trial, often accompanied by dueling expert witnesses, it is at least subject to the scrutiny of the adversary system, including cross-examination. Studies merely cited in footnotes to appellate briefs may represent the worst of both worlds — suspect science and untested evidence — which helps explain why Justice Souter was skeptical of them. But focusing on financing rather than quality is only a partial solution.

People who conduct empirical legal research say their work should be considered on the merits. Others accuse Justice Souter of being disingenuous, noting that the court largely adopted the approach advocated by the Exxon studies, disclaimer or no. Still others say the court mishandled the studies it cited with approval.

But Terry N. Gardner, the engineer who called Professor Freudenburg and coordinated the Exxon project, expressed satisfaction. “My feeling was that they seemed to have an obligation to say that,” Mr. Gardner said of the footnote. “Yet the arguments the justices used in part reflected the conclusions of the studies.”

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“The opinion reads like a bad joke,” said Jeffrey J. Rachlinski, a law professor at Cornell. “They say they know of no study showing punitive damages are orderly in any way, and yet they cite” a study by Theodore Eisenberg, a prominent empirical legal studies scholar at Cornell, “showing punitive damages are pretty orderly.”

Professor Eisenberg struggled to stay respectful about the court’s approach to his work, saying he had been flattered to be cited at all. He finally settled on this phrase: “I believe the court went seriously astray” in concluding that his work supported a reduced award.

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Before Exxon cut off his financing, Professor Freudenburg said, one of his tentative conclusions had been that corporate transparency encourages responsible corporate behavior. That did not go over well with Exxon’s legal department.

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The Supreme Court’s decision in the Exxon case, Professor Freudenburg said, had caused him to come to a reluctant conclusion. “The legal system and the scientific method,” he said, “co-exist in a way that is really hard on truth.”

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To read the entire article, click here.  For other Situationist posts examining the influence of corporations on science and policy theory, see “Without the Filter,” “The Situation of University Research,” “The company “had no control or influence over the research” . . . .,” ” Deep Capture – Part VII,” “Industry-Funded Research,” and “Industry-Funded Research – Part II.”