Punitive damages, remunerated research, and the legal profession.

Author:Barday, Shireen A.

INDEX OF FIGURES AND TABLES INTRODUCTION I. FINANCIAL SUPPORT FOR LEGAL RESEARCH A. Methodology for Analyzing Law Review Articles on Punitive Damages B. Trends in Law Review Articles on Punitive Damages C. Treatment of Funded Articles by the Legal Profession II. THE TROUBLE WITH REMUNERATED RESEARCH A. Daubert and Judicial Scrutiny of Industry-Funded Scientific Studies III. TOWARD RESOLVING THE PROBLEM OF INDUSTRY FUNDING CONCLUSION APPENDIX A: AUTHOR, TITLE, FUNDERS, CASES CITING TO THE ARTICLE, AND THE MAJOR HOLDING OF THE CASE AS RELATED TO PUNITIVE DAMAGES APPENDIX B: AUTHOR, TITLE, FUNDER, CASES CITING TO ARTICLE, AND QUOTATIONS FROM CASES REFERENCING ARTICLE INDEX OF FIGURES AND TABLES Figure 1. Article Identification Flowchart Figure 2. Financial Disclosures by Year by Type Table 1. Law Review Articles by Funder Table 2. Exxon-Funded Articles Table 3. Articles by Funding Type Table 4. Articles by Funding Type by Citations in Legal Briefs INTRODUCTION

A sociology professor is sitting in his office one day when he receives an unsolicited call from a representative of a large corporation facing a devastating punitive damages award. The caller says that the corporation is "exploring... whether it's feasible to get something published in a respectable academic journal, talking about what punitive damage awards do to society, or how they're not really a very good approach." The caller explains, "[t]hen, in [the corporation's] appeal, we can cite the article, and note that professor so-and-so has said in this academic journal, preferably a quite prestigious one, that punitive awards don't make much sense." (1) The professor was William Freudenburg and the corporation was Exxon, which contacted Freudenburg and a host of other scholars in the wake of its appeal of a $5 billion punitive damages verdict arising from the Exxon Valdez oil spill off the coast of Alaska.

This practice of soliciting and then funding "for-litigation" research is not unique to Exxon. A host of other groups, including corporations and conservative think tanks with corporate underwriters, continue to fund research for the purpose of presenting their findings to courts in order to discredit jury verdicts that awarded punitive damages against them. (2) This kind of hired-gun research would be problematic even if the results were accurate, because as the Supreme Court has recently acknowledged, it creates an appearance of bias. (3) But even more troubling is the fact that prominent scholars have discredited this research by showing that numerous industry-funded law review articles are methodologically flawed. (4)

This Note expands upon the literature analyzing the problems with remunerated research by examining law review articles on the topic of punitive damages that disclose financial support. It first reviews the scope and methodology used to gather the relevant set of funded law review articles, and then highlights trends in the data, such as frequent funders and peak funding years. Next, the Note examines the treatment of funded law review articles, first by the legal profession and then by the judiciary. In assessing the treatment of such articles, this Note looks at the number of citations to particular articles, as well as the prestige of the courts citing to industry-funded pieces as compared to pieces funded by universities. In the second Part, using the Daubert standard for admissibility of expert testimony as a point of departure, the standards governing what qualifies as "authority" within the legal profession are compared and contrasted with those from other fields. Finally, this Note concludes by offering two proposals for reform: mandatory disclosure of funding sources and the creation of a database to identify articles by funding source.


    Law professors often receive financial support for the articles they publish--by 2008, 24,300 or approximately 5.5% of law review articles included financial disclosures. (5) As many as half of the acknowledged donors are universities (or donors to universities) who exert no influence over the content of the article being published. Many universities and law schools have public relations policies in place to ensure that donors to the school are acknowledged in publications stemming from research their contributions have supported. (6) Others offer faculty a portion of their annual salary in the form of a grant to support summer research. (7) The remaining 12,000 or so pieces are funded by government, industry, and interest groups, or some combination thereof. For example, Texaco, Exxon, and Honda each funded a series of studies by sympathetic scholars in response to large punitive damages awards against them. (8) Fourteen of these types of studies have been published in law reviews. (9)

    Fourteen may seem like a small sample, but these works have exerted an impact on the legal profession of substantially greater magnitude than their numbers indicate. Many have been used to reduce hundreds of millions of dollars in punitive damage verdicts assessed against some of the very corporations that have underwritten them. (10) And while the Supreme Court has recently explicitly declined to rely upon some of the studies financed by Exxon in adjudicating Exxon's appeal of the punitive damages verdict resulting from the Exxon Valdez oil spill, (11) all of these articles--including those upon which the Supreme Court has not relied--have been cited as authority by courts at every level. 12 Even the Supreme Court has previously relied upon these very articles in pronouncing rulings on punitive damages. 13 This suggests that the Supreme Court has recognized the direct conflict of interest posed by citing to literature funded by a party to the litigation but not the inherent trouble with this literature itself. Nevertheless, the influx of corporate money into legal research and jurisprudence has led some scholars to question whether industry money has infiltrated the sanctity of the legal academy and begun to distort legal scholarship. (14) Professor Kip Viscusi, formerly of Harvard Law School, has been a frequent target of these charges. (15) Widely published and cited in the field of mass tort litigation, he has written extensively on the subject of punitive damages. (16) His initial work was concerned with damages arising from smokers' lawsuits against tobacco companies, but in 1997, Exxon-Mobil gave him a research grant to author articles detailing "why punitive damages awards are inappropriate in today s civil justice system." (17) At that time, Exxon was appealing a $5 billion punitive damages award, resulting from the Exxon Valdez oil tanker spill off the coast of Alaska. (18)

    1. Methodology for Analyzing Law Review Articles on Punitive Damages

      The data used in this Note are limited to funded research published in law reviews and other legal journals. Although this data set does not capture the full range of research underwritten by corporations, the law review is an appropriate medium for analysis because it occupies such a unique and central place in legal scholarship and research. The Supreme Court cited to law review articles as early as 1897. (19) In 1900, a Harvard Law Review article became the first such piece to be cited in a majority opinion. (20) During the twentieth century, Justices Brandeis and Cardozo drew heavily from law reviews in drafting opinions. (21) Indeed, recognizing the unique influence of the law review as an institution, Justice Brandeis himself underwrote most, if not all, of the articles published in the Harvard Law Review by students of then-Harvard Law Professor Felix Frankfurter. (22) These were written pursuant to "recommendations" of appropriate topics by Justice Brandeis, and they constituted the majority of articles he later cited in his judicial opinions. (23)

      The articles analyzed for the purposes of this Note were first identified by using a Westlaw query to isolate articles in the "journals and law reviews" database that are either entirely or substantially about punitive damages where the author acknowledged funding from outside sources. (24) This list was then crosschecked against a subdirectory of all privately funded law review articles contained within the Westlaw database, yielding fifty-one articles. Then eighteen documents that either were not actually about punitive damages or did not actually include a financial disclosure were excluded as false positives. (25) The remaining thirty-three articles were classified first according to the position proffered with regards to reducing or otherwise limiting punitive damages, and second as to whether the outside funding cited by the author originated from a university or some other source.

      Finally, the articles were tracked using Westlaw's "KeyCite" feature, which identifies the number of citations and types of documents citing to a particular article. (26) For the purposes of this Note, the number of references to a particular article includes citations that have appeared in judicial opinions, briefs, and miscellaneous secondary sources, including treatises and other law review articles.


      This Note includes articles that disclose grants by universities, because they serve as a useful benchmark against which to compare research arising from other funding sources. "University sources" include any funds originating in the school's endowment that did not condition release of funds upon the university's approval of the specific research project (i.e., that did not require a grant proposal or vetting process). "University funding" does not include organizations like the Harvard Olin Center or the John M. Olin Program in Law and Economics at Stanford, both of which have full discretion (separate and apart from the university) over which research projects they fund. Unlike corporate and think tank underwriters, university grants do not raise...

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