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Big Business And The Roberts Court - Panel III.

Publication Date: 
January 23, 2009
The Volokh Conspiracy
Jonathan Adler

Professor Pamela S. Karlan's statements reflecting what she said during a panel discussion on the Roberts Court are summarized by Jonathan Adler of the Volokh Conspiracy Blog. Panel III of the Santa Clara Law Review symposium on "Big Business and the Roberts Court: Explaining the Court's Receptiveness to Business Interests," featured Vikram Amar (UC Davis), Pam Karlan (Stanford) and Jonathan Adler:

Pam Karlan sought to compare Caperton v. A.T. Massey Coal Co. with Exxon Shipping v. Baker, two cases involving large punitive damage awards against corporate defendants. In Caperton, a corporate CEO spent approximately $3 million to unseat a pro-plaintiff state supreme court justice in West Virginia so as to secure a favorable verdict in a punitive damages case. The justice who won refused to recuse, and cast the deciding vote in Massey Coal’s favor. Later this term the Court will consider whether this failure violated Caperton’s due process rights.

The efforts Of Massey Coal’s CEO, Blankenship, to buy a favorable court result, Karlan suggested, are similar to the campaign by Exxon to influence the outcome of its litigation efforts by funding academic research raising questions about the reliability and fairness of large punitive damage awards. Such efforts, she suggested, were an equivalent effort to alter the course of litigation, and influence not only a specific case (Exxon’s eventual appeal to the Supreme Court) but how lower courts address similar issues going forward.

Why did Exxon feel the need to fund these studies, Karlan wondered. It must be because otherwise the studies would not have been written (or at least not when they were). This could be because some sorts of studies, such as those involving hiring mock jurors, are sufficiently expensive that they would not otherwise occur. Another possibility is that Exxon’s funding alters the research queue of the experts receiving Exxon funds. If so, Karlan wondered whether this is unethical for academics, for what are our universities paying us for if not (among other things) our independent judgment about what subjects are worthy of academic investigation. [What does that say about symposia like this one? This invitation certainly altered my research queue – alas, there was no massive check attached.]

Interestingly enough, Justice Souter’s majority opinion in Exxon Shipping noted Exxon’s funding of academic research on the consistency and variability of punitive damages awards, in footnote 17, and explicitly disclaimed any reliance those studies. Why did the Court do this? One possibility, Karlan suggested, was because Exxon was a party to the case. But would this mean that the same studies could be considered in another case raising similar issues? Or would the Exxon funding be similarly disqualifying?

Karlan said she did not believe Exxon’s efforts to “seed” the academic research so as to improve its case rise to the level of a due process violation. The Caperton case, on the other hand, raises a more serious due process issue that could require the Court to adopt a legislative-type rule to prevent this sort of abuse and govern potential conflicts-of-interest in state courts going forward. If Blankenship’s actions create a due process problem, the Court will have little choice but to develop a series of legislative-type rules about what is or is not required when parties before elected state courts have contributed to campaigns or election efforts.