Legal News

Justice Souter and the Mystery of Footnote 17

By Ashby Jones

Is any footnote in U.S. Supreme Court history as famous as Footnote 4 in the U.S. v. Carolene Products case? Perhaps not; Footnote 4, after all, essentially established different levels of constitutional review. But a new Supreme Court footnote appears to be dethroning Footnote 4 — at least for the time being.

According to a story by Legal Times’s Tony Mauro, the footnote at issue is Footnote 17 from this term’s Exxon Shipping Co. v. Baker, issued by the Supreme Court on June 25.

Justice David Souter authored the opinion that struck down a $2.5 billion punitive damage award in the Exxon Valdez case. His Footnote 17 referenced “a body of literature” that documented the unpredictability of punitive damages. The footnote went on to mention studies written by the likes of Cass Sunstein at the University of Chicago. But then, this: “Because this research was funded in part by Exxon, we decline to rely on it.”

It’s that last part that has much of legal academia buzzing. Why would Souter go out of his way, Mauro asks, to disparage research that supported his concern about the unpredictability of jury awards? The justice did not elaborate.

Some reactions: Richard Hasen, law professor at Loyola Law School in Los Angeles, spotted the footnote right away and described it as “troubling” and “unfortunate” on his Election Law blog. There are times, Hasen reportedly said, when litigants pay for necessary empirical studies in litigation, and now Souter was casting doubt on their credibility.

Sunstein, however, was reportedly unfazed, saying he took no offense from the footnote. “I thought his opinion was excellent,” Sunstein told the Legal Times, “especially his emphasis on the problem of unpredictability.”

According to Mauro, Sunstein said in 1999 that he had only received travel expenses for his study, which was published in the Yale Law Journal, and that he had retained editorial control.

Hugh Young of the Product Liability Advisory Council, one of the organizations that cited the study, says the footnote is “peculiar,” but adds, “I wouldn’t take it as a slap in the face. You don’t have to worry about Exxon buying out the Yale Law Journal.”

Full post as published by Law Blog - WSJ.com on July 07, 2008 (boomark / email).