March 1, 2008
Bloggers tackle the Supreme Court and the Exxon oil spill
Three quick updates as bloggers attempt to wrestle with Wednesday's Supreme Court gathering to hear oral arguments in the punitive damages phase of the Exxon Valdez oil spill.Long and fascinating, here is Jan Crawford Greenburg of ABC News in Washington, D.C., Oil and Water:
The most fascinating thing about the argument—and it really was one of the most fascinating arguments of the term--was watching the justices explore different proposals and options to put some limits on punitive damages.I tried to capture a bit of this in my own story for the Cordova Times, here -- how it did seem even to my uninformed eyes that this was a rockin' day at the court, and that Ginsburg ruled the day.You saw Justice Scalia—who has long refused to put constitutional limits on punitive damages (he doesn't see it in the Constitution any more than he sees a right to abortion in the Constitution)—free to weigh in and discuss a framework.
You saw Chief Justice Roberts, who has not ruled squarely on that broader constitutional issue, expressing skepticism about punitive damages and exploring the differences in maritime law—an area he knows well, having argued (and won) the important maritime case, Grubart v Great Lakes Dredge and Dock, which came about after the great Chicago flood. That case, written by Justice Souter, is one of his favorites—as a lawyer he quoted it frequently as an advocate, because it squarely rejected confusing multi-factor tests for admiralty jurisdiction.You saw Ginsburg—who always is prepared at argument, but yesterday exhibited an almost astoundingly expert level of knowledge about this tortured and complex case—pressing Dellinger on the record, on precedent and on federal procedural rules. It was an extraordinarily impressive display, and to many observers she clearly got the best of the argument.
At Scotusblog, former Baltimore Sun courts reporter Lyle Denniston weighs in with Commentary: Exxon may both lose and win.
First impressions, based on what was said or intimated at a fast-paced oral argument, can be quite misleading. This Court usually divides quite deeply in considering punitive damages claims — a factor that is even more complex in this case, because one Justice (Samuel A. Alito, Jr.) is not taking part, leaving at least a chance of a 4-4 split, perhaps on some but not all issues. But first impressions also might qualify as reasonable reactions, when what was asked and answered is parsed closely, and when atmospherics are taken into account. It was apparent that Exxon’s lawyer, Washington attorney Walter Dellinger, was under serious challenge throughout his argument, and critically so on his efforts to get the Court to forbid any punitive damages award for this kind of maritime accident. But it was equally apparent that the lawyer for the individuals and businesses who were awarded punitive damages, Stanford professor and lawyer Jeffrey L. Fisher, had to deal with a spreading view on the bench that there had to be some curbs on punitive damages in the maritime context — especially when the punitive verdict runs into the billions.And finally, here's a podcast from the Federalist Society for Law and Public Studies, direct link here. This gives a more skeptical view of the plaintiffs' arguments for those seeking a balance of information.
