Souter’s ‘Great Mystery Footnote’ Disses Exxon-Funded Research
A footnote by Justice David H. Souter in his Supreme Court opinion overturning $2.5 billion in punitive damages imposed against Exxon Mobil is prompting some raised eyebrows.
Hugh Young, a lawyer who represented a group submitting an amicus brief in the case, told Legal Times (reg. req.) that Souter’s footnote 17 “is going to become the great mystery footnote of the decade.”
Souter wrote of “the stark unpredictability of punitive awards,” but his conclusion wasn’t based on legal studies funded by Exxon, the story says. “Because this research was funded in part by Exxon, we decline to rely on it,” the footnote declares. Studies mentioned in the footnote include research by law professor Cass Sunstein of the University of Chicago.
Observers interviewed by Legal Times had a variety of reactions to the footnote. Law professor Richard Hasen of Loyola Law School Los Angeles said Souter was casting doubt on the credibility of necessary empirical studies funded by litigants. He saw it as a “troubling” development.
But Sunstein was taking the footnote in stride. Souter “is right not to rely on work partly funded by a party,” Sunstein told Legal Times. “I thought his opinion was excellent—especially his emphasis on the problem of unpredictability.”
