March 17, 2009

Punitive Damages, Remunerated Research, and the Legal Profession

The December 2008 edition of the Stanford Law Review, now available on Westlaw, contains this student note entitled "Punitive Damages, Remunerated Research, and the Legal Profession." The Westlaw citation is 61 STNLR 711.

The note, authored by recent Stanford graduate Shireen A. Barday, explores an issue that attracted a lot of attention last summer when Justice Souter, while authoring the majority opinion in Exxon Shipping, included a footnote stating that the court would not rely on academic research that was funded by Exxon. (Footnote 17.) Adam Liptak wrote a New York times piece on that footnote, and Rick Hasen questioned the Supreme Court's approach on his Election Law Blog.

Barday's note observes that medical and scientific journals require authors to disclose their sponsors, but law reviews freely publish articles without requiring any financial disclosure. Barday proposes (1) mandatory financial disclosure requirements for law review submissions, and (2) the creation of a conflicts database that would allow lawyers and judges to track industry funded research. The first proposal seems eminently reasonable, but the second may be a little too ambitious to be realistic.