Vikram Amar spoke on the implication of changing Court personnel on the Court's doctrine in the dormant commerce clause and punitive damages context. Thus far, Amar noted, Justices Scalia and Thomas have been unable to woo the Chief Justice and Justice Alito to adopt their methodological originalism in these areas. This not only has implications for business but also, Amar suggested, but perhaps also on the continued viability of originalism as an interpretive methodology.

On punitive damages, Amar notes, the Court does not split along traditional ideological lines, with Justice Breyer (rather than Justice Kennedy) playing the pivotal role. In the Philip Morris case, for instance, Justice Breyer wrote the majority for Justices Kennedy, Alito, Souter and the Chief Justice, whereas Justices Stevens, Ginsburg, Scalia and Thomas dissented, Thomas on the explicit grounds that the Court had no business limiting punitive damages on substantive due process grounds. Justice Thomas and Scalia reject any constitutional limitation on punitive damages, though both were willing to support limits on punitive damages under maritime law in the Exxon Shipping v. Baker, where Congress retains the ability to impose a different rule.

Turning to the dormant commerce clause, Amar noted that Scalia and Thomas (and particularly the latter) take a similarly absolutist view, rejecting the idea that the dormant commerce clause has any textual basis. Justice Scalia is willing to strike down some truly discriminatory measures on stare decisis grounds, but Justice Thomas has said he will not enforce the clause at all. Though the Chief Justice and Justice Alito have differed on application of the dormant commerce clause, neither has shown any inclination to join the Scalia-Thomas originalist position.

In both areas, it may appear that Scalia and Thomas are opposing the constitutionalization of particular rules without textual basis. Yet, Amar noted, the dormant commerce clause operates as a default rule, subject to legislative revision. Just as Congress can alter the limit on punitive damages in maritime law, Congress can authorize state measures that would otherwise violate the dormant commerce clause. Moreover, Amar observed, there is well-over one-hundred years of precedent on the dormant commerce clause upon which Congress has relied in deciding when and whether to authorize state measures that could inhibit interstate commerce. If Scalia and Thomas were truly concerned about preserving Congress' role, Amar suggested, their strict originalist approach is misplaced.

Pam Karlan sought to compare Caperton v. A.T. Massey Coal Co. with Exxon Shipping v. Baker, two cases involving large punitive damage awards against corporate defendants. In Caperton, a corporate CEO spent approximately $3 million to unseat a pro-plaintiff state supreme court justice in West Virginia so as to secure a favorable verdict in a punitive damages case. The justice who won refused to recuse, and cast the deciding vote in Massey Coal's favor. Later this term the Court will consider whether this failure violated Caperton's due process rights.

The efforts Of Massey Coal's CEO, Blankenship, to buy a favorable court result, Karlan suggested, are similar to the campaign by Exxon to influence the outcome of its litigation efforts by funding academic research raising questions about the reliability and fairness of large punitive damage awards. Such efforts, she suggested, were an equivalent effort to alter the course of litigation, and influence not only a specific case (Exxon's eventual appeal to the Supreme Court) but how lower courts address similar issues going forward.

Why did Exxon feel the need to fund these studies, Karlan wondered. It must be because otherwise the studies would not have been written (or at least not when they were). This could be because some sorts of studies, such as those involving hiring mock jurors, are sufficiently expensive that they would not otherwise occur. Another possibility is that Exxon's funding alters the research queue of the experts receiving Exxon funds. If so, Karlan wondered whether this is unethical for academics, for what are our universities paying us for if not (among other things) our independent judgment about what subjects are worthy of academic investigation. [What does that say about symposia like this one? This invitation certainly altered my research queue -- alas, there was no massive check attached.]

Interestingly enough, Justice Souter's majority opinion in Exxon Shipping noted Exxon's funding of academic research on the consistency and variability of punitive damages awards, in footnote 17, and explicitly disclaimed any reliance those studies. Why did the Court do this? One possibility, Karlan suggested, was because Exxon was a party to the case. But would this mean that the same studies could be considered in another case raising similar issues? Or would the Exxon funding be similarly disqualifying?

Karlan said she did not believe Exxon's efforts to "seed" the academic research so as to improve its case rise to the level of a due process violation. The Caperton case, on the other hand, raises a more serious due process issue that could require the Court to adopt a legislative-type rule to prevent this sort of abuse and govern potential conflicts-of-interest in state courts going forward. If Blankenship's actions create a due process problem, the Court will have little choice but to develop a series of legislative-type rules about what is or is not required when parties before elected state courts have contributed to campaigns or election efforts.

I'll add a post summarizing my remarks later today or tomorrow.