The Exxon-Valdez and Whales in the Supreme Court
The New York Times recently published a story about the Supreme Court decision in the Exxon Valdez case. In 1989 Exxon's tanker ran aground in Prince William Sound, piloted by an overworked seaman and his drunk master. The ship spilled 11 million gallons of crude oil over 1,200 miles of Alaska shoreline. The livelihoods of 32,000 plaintiffs were ruined.
The jury awarded the plaintiffs $5 billion in damages, a sum the district court reduced to $2.5 million. The Supreme Court then lowered the punitive award from "$2.5 million to $500 million. Exxon-Mobil made about $40 billion dollars in profits in 2006. $5 million accounts for about 4 days of Exxon-Mobil profit. By the time the Supreme Court ruled on the case, in June of this year, 20 years after the accident, about 20% of the plaintiffs had died.
From the title of the NYT article, "From One Footnote, a Debate Over the Tangles of Law, Science and Money", I thought that the Times story would have similar themes to the recent case about Navy sonar testing off the California coast. In that case, Winter vs. NRDC, (we wrote on this in "Whales in the Supreme Court"), the justices seemed to take at face value oral assertions by the Navy that their sonar caused no harm to whales, despite government funded research proving sonar did indeed cause significant harm to marine animals. In fact the Navy's own research -- both published and suppressed -- also found risks for significant damages to marine mammals. The damning evidence was significantly downplayed in the Navy's arguments.
The science in Navy case, Winter vs. NRDC also seemed for the most part to be explicitly ignored by the Supreme Court. Said Justice Breyer: "you are asking us who know nothing about whales and less about the military to start reading all these documents to try to figure out who's right in the case where the other side says the other side is totally unreasonable." The court appeared to perfunctorily reduce the case to a question of national defense vs. an incidental whale, and naturally ruled in deference to defense.
The ruling in the Navy training case was narrow, which environmentalists like NRDC and the Sierra Club took as a good sign. Despite NRDC's sanguine public relations statements in face of their defeat, however, it is not clear to me that the court's decision was even any real calculation of the risks the Navy's training efforts would face by making efforts to spare whales. Rather, it seemed more simply to be a nod to the Bush administration and its callous approach to the environment when it comes to the military, commerce (or, well, anything else)?
Scientific details which could have influenced the decision were ignored. While the court didn't say that the military would never have to do environmental impact statements, the ruling hinted that they were thinking in that direction.
When Exxon Recruits Researchers
The Times article on Exxon Shipping Co. v. Baker ended with a quote from Prof. William R. Freudenburg, who teaches sociology at UC Santa Barbara: "The legal system and the scientific method, he said, co-exist in a way that is really hard on truth."
Freudenburg had been recruited by Exxon to do sociological research showing (basically) that juries are too generous in awarding damages. His initial research apparently offended people at the company, so Exxon terminated his contract. Exxon than paid other sociologists and legal experts to do the work and published their findings in two prestigious law journals. The Supreme court read these articles, and wrote the following footnote to their decision.
"The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous "mock juries," where different "jurors" are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L. Rev. 1139 2000); Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of Plaintiff's Requests and Plaintiff's Identity in Punitive Damage Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 Yale L. J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it."
However the court's decision concurred with this Exxon funded research, despite the footnote saying the opposite. This, combined with the fact that the court misinterpreted non-Exxon funded research to show that jury awards were generally fair compensation, led Freudenburg to comment on science and the court.
The Supreme Court's footnote has led to a maelstrom in the legal world over both the validity of the sociological research and the court's treatment of it. After the June decision, some writers were alarmed about the court's assertion since they considered the legal research in question ""top notch work". Others voiced a completely different concern -- "skepticism about these particular mock jury trials."
These two vastly different interpretations of the validity of sociological research and its place in the court distract from a different problem evident in both the Navy and the Exxon-Valdez case. Science brought before the courts can easily be sidelined as it was in Baker in favor of sociology research, or denigrated, as it was in the Navy case when the court simplified the question to one of national security. The environment lost in both cases and the plaintiffs lost in the Exxon Valdez case.
Of course sociological research is different than science research. Exxon is well known for supporting "anti-research", for example stating that global warming doesn't exist. In the current case, Exxon didn't deny damages to the plaintiffs rather they supported research claiming that juries are rather simple-minded and over compensate, research that doesn't hold up in other studies. This is more useful to them in the long run and allows them to skirt the real questions.
Despite my initial impression, the Exxon case did not resemble the NRDC case in a simple way. But the two cases are similar in how predictably the court seems to decide, despite whatever science research is out there. The footnote is a puzzle, and seems politically motivated rather than anything else. It's either cover for a court decision that actually was influenced by Exxon's research, or evasive action based on the acknowledgment that the reader might suspect this.
It's hard to ignore the fact that corporations have long worked to eviscerate the ability of the public to impose financial damages because of bad behavior. Corporations have also long worked to reduce consideration of the environment when doing business. The court seems merely to be codifying these goals.
