There’s a lot of chatter (at Election Law Blog and Concurring Opinions) about this footnote in Exxon v. Baker (by Souter, writing for the Court):
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 on 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.
(emphasis supplied by ELB and CO). What’s interesting, too, is that they tagged Columbia Law Review, Yale Law Journal, and Law & Human Behavior as well.
I’m with Hoffman at CO on it — the Court isn’t laying down a rule excluding litigant-funded research, they’re just declining to consider there, and offering a rebuke to academics who taint their own work by accepting funding from parties with multi-billion-dollar interests in their outcome.
Moreover, it bears note that the record here included nothing about the predictability of punitive damages awards — it’s a case about an oil tanker spill — all of that information came in through judicial notice. So let’s review Federal Rule of Evidence 201:
Rule 201. Judicial Notice of Adjudicative Facts
This rule governs only judicial notice of adjudicative facts.
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
A court may take judicial notice, whether requested or not.
A court shall take judicial notice if requested by a party and supplied with the necessary information.
A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
Judicial notice may be taken at any stage of the proceeding.
In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
First, the "fact" here is obviously open to reasonable dispute. Second, the source of the information obviously opens up questions about its accuracy.
Finally, the Court was declining to exercise judicial notice of that research, a decision that, even when done at the trial level, stands essentially unreviewable. If a trial court wants to make you prove the sun rises in the east and sets in the west, that’s its prerogative. If the fact is so obvious, you should be able to prove it easily.