"The Republican Street Fight Over Transparency in Government"

[applegrove]

The Republican Street Fight Over Transparency in Government

by Lawrence Lessing at the Daily Beast

http://www.thedailybeast.com/articles/2014/03/26/the-republican-street-fight-over-transparency-in-government.html

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A growing rift in the Republican Party about transparency has deepened within the Senate, with 16 Republicans now scolding a federal agency for the outrage of requesting that scientists submitting studies in a rule-making procedure identify any financial conflicts of interest. But to see just how crazy this scolding is, we need some background.

In 2008, the Supreme Court heard a case reviewing a punitive damages award against Exxon, following the 1989 Exxon Valdez disaster. As part of its argument, Exxon relied upon academic research that purported to show the irrationality in jury verdicts, at least in cases involving large punitive damages. Exxon had helped fund that research. It had hoped the Court would rely upon it to reach a conclusion in its favor.

Exxon won its case. The academic research did less well. In a footnote to the Court’s opinion, Justice David Souter wrote, The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous “mock juries,” where different “jurors” are con- fronted with the same hypothetical case. … Because this research was funded in part by Exxon, we decline to rely on it. (emphasis added)

To many, Justice Souter’s care was admirable. The Court should protect itself from scholarship-for-hire, or even the appearance of scholarship-for-hire (which in this case was the worst that could have been said of the scholarship at issue). Taking care to explicitly discount such research might slow the flow of such work into the judicial process in the future. That, in turn, could make it less likely that the Court would be misled by compromised science.

But to some, the footnote felt a bit precious. For within the modern administrative state, agencies rely upon research “funded in part by” an interested party all the time. So why should a federal agency be required to consider conflicted research while a court is free simply to ignore it?


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1. K & R nt