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." 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. 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. 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...

 

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