Ted Eisenberg (Cornell University Law School), Michael Heise (Cornell University Law School), and Martin Wells (Cornell University Department of Social Statistics) have posted “Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court’s Decision in Exxon Shipping Co. v. Baker” on SSRN, see here. In this paper, the authors more or less reaffirm their earlier findings that there is “overall restraint” in awards of punitive damages in state courts, and that the size of compensatory damage awards is strongly correlated to the size of punitive damage awards in their random sample of both jury and bench trials in 46 of the 75 most populous counties in the United States. Of particular significance, the authors criticize the Court for relying on their earlier study, see here, in suggesting in Baker that punitive awards at all compensatory damages levels have been unpredictable (primarily on the basis of a table of summary statistics in their original article). Yet, as the authors point out in their current paper, the high variability (and higher mean) of the ratio between punitive and compensatory damages awards occurs when the compensatory award is less than $10,000. In other words, the Court struck down a high punitive damages award in Exxon Shipping when there was a high compensatory award ($500 million) on the basis of the unpredictability of punitive damage awards when compensatory awards are under $10,000. In the Court’s defense, while it is true that figures 1 and 2 in the authors’ original article are suggestive that the variability in punitive awards occurs primarily with respect to lower compensatory awards, that observation is not at all clear from the original article, particularly for those that do not engage in empirical or statistical work. In defense of the authors, their article was not intended to analyze variability in punitive damage awards based on the size of compensatory damage awards; the authors’ 2006 article was aimed at analyzing variability in punitive awards between jury and bench trials, and to determine whether the size of punitive awards have increased over time. However, this article does demonstrate the risk when the Court relies on complicated statistical studies, particularly those that are not directly on point, but I also think that empirical scholars should do a far better job in making their studies more accessible to non-statisticians.
Given that the hearings for Sonia Sotomayor are scheduled to begin in little more than a week, I thought I would point our readers to a co-authored paper (with Ryan W. Scott) I published late last year entitled “Navigating the New Politics of Judicial Appointments,” see here. It was one of the few scholarly papers out there that looks at the federal judicial appointments process, and particularly the Supreme Court appointments process, from the viewpoint of the Executive Branch. So many books and papers focus on the appropriate role of the Senate in the process, but very few focus on the President’s role. Two other great resources for examining judicial appointments from the viewpoint of the President are Christine Nemacheck’s excellent book entitled “Strategic Selection: Presidential Nomination of Supreme Court Justices from Herbert Hoover through George W. Bush,” see here, and Michael Gerhardt’s 1998 article entitled “Toward a Comprehensive Understanding of the Federal Judicial Appointments Process,” which was published in the Harvard Journal of Law and Public Policy, but is unfortunately unavailable online either through a free service or the journal’s website.