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.
Over at the Election Law Blog, Rick Hasen questions the wisdom of this approach.
[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?