November 25, 2008

NY Times Story on Exxon Shipping Footnote 17

The New York Times has this story by Adam Liptak about Exxon Shipping's footnote 17, in which the Supreme Court stated that it would not rely on research funded by Exxon. Liptak suggests that the footnote may represent a trend away from reliance on empirical work:

The Supreme Court has often considered academic studies in its decisions, starting with Louis D. Brandeis’s famous 1908 brief collecting medical and other evidence to support laws limiting work hours. Lawyers still call such submissions “Brandeis briefs.” The court’s signal triumph, Brown v. Board of Education in 1954, cited studies from psychologists and others, and citations to empirical work are commonplace these days. The Exxon footnote, many law professors fear, may be a sign that the court is moving in a different direction, at least when studies are financed by interested parties.
The last clause ("at least when the studies are financed by interestd parties") is an important qualifier, since the Exxon Shipping opinion relied heavily on empirical studies. Just not the studies funded by Exxon.

Loyola Law Professor (and H&L academic consultant) Rick Hasen previously posted a critique of footnote 17 on his Election Law blog.