Law School Discussion Guide Access to Justice Issues: In theory, our legal system should provide the victims of the spill full recovery. Yet in practice, there are many barriers that may prevent this ideal from becoming a reality. Those affected by the Gulf Oil Spill must decide whether to accept a final settlement and give up their right to sue BP, or to take their chances in court. Both avenues raise access to justice concerns. The Exxon Shipping Co. v. Baker case was litigated for nearly twenty years. In the time it took for victims to receive compensation, one out of every five plaintiffs had died. What does this say about the ability of our legal system to provide meaningful relief? Is there a way to fix it while also ensuring Due Process for defendants? Do you think victims of the Gulf Oil Spill have a realistic chance of obtaining justice against deep-pocketed defendants? The administration of the Feinberg compensation fund raises its own access to justice concerns. Should victims be entitled to legal representation before signing a final settlement and waiver of the right to sue? Should there be a mechanism to ensure that materials associated with the Fund are translated so that all affected communities are able to understand them? How can we ensure that victims receive adequate notice? What other access to justice concerns might victims face? Can the Fund serve as an adequate replacement for our judicial system in measuring and recompensing individuals harm? While BP has set up a voluntary fund, what happens if BP either fails to provide adequate funding, or if BP changes it mind about making voluntary payments to people? Is there any type of enforceable contractual relationship established at this point of the process? Ken Feinberg has a list of required documentation for a claim for final payment through the Gulf Coast Claims Facility, including pay stubs, income tax returns, etc. Should an individual be precluded from receiving compensation if he/she has not filed taxes or other official documents required in order to receive compensation? How should the fact that the fishing industry is largely a cash economy factor into the burden of establishing lost income?
With the possibility of long-term damages that may not be foreseeable for many years to come, victims face a tough choice. Is it fair to ask victims to decide whether or not to waive their rights to sue without knowing the full extent of the damages they have suffered? How could the Fund be restructured to avoid this Hobson s choice? Could the Fund be set up so that victims only waived their right to sue for damages suffered during a set period of time, while retaining the right to sue in the future for currently unknowable harms? What other solutions can you think of? One major access to justice concern is ensuring that victims of the spill are fully informed of the pros and cons of bringing a claim through the courts or through the Gulf Coast Compensation Fund. What are the pros and cons of each choice? What route would you take? Proximate Cause OPA is a strict liability statute and does not require negligent conduct on the part of the responsible party. Thus, under OPA, plaintiffs must simply prove that they suffered a loss covered by the statute and caused by the responsible party. At common law, a defendant will be liable for harms proximately caused by his/her culpable act. Proximate cause requires that the harm would not have occurred but for the defendant(s) s conduct, and that the harm must have been reasonably foreseeable to the actor at the time he/she acted. The Oil Pollution Act (OPA) does not contain the words proximate cause. Instead, it limits damages to those that are due to or result from the incident. 1 It is not entirely clear under OPA to what extent those who suffer indirect losses are entitled to compensation. Just how remote can economic damages be? o Should local hotels, restaurants, shops and other businesses be able to recover under OPA? o What about a travel agency in New York claiming that its business has been negatively impacted by the spill? o At what point is the chain of causation cut? What about damages alleging harm based on the perception that seafood in the Gulf of Mexico is unsafe? Should individuals and businesses be able to claim lost profits under OPA resulting from an assumption that Gulf seafood is unsafe to eat (even if this is not the case)? Ken Feinberg initially indicated that geographic proximity to oil-polluted beaches would be taken into account as a compensation factor. Is geographic proximity relevant to proximate cause? Should individuals hundreds or even thousands of miles from a polluted beach be able to bring claims against the responsible parties? 1 33 U.S.C. 2702(a) (1990) states that in general, defendants are liable for damages that result from such incident. 33 U.S.C. 2702(b)(2)(E) (1990) says that damages for lost profits are defined as damages equal to the loss of profits or impairment of earning capacity due to the injury, destruction, or loss of real property, personal property, or natural resources.
Should the fact that OPA did not use the term proximate cause be taken to mean that a lower, but for standard of causation is meant to apply? 2 Do you find OPA s imposition of strict liability rather than negligence relevant to this determination? Punitive Damages after the Exxon Decision: The Supreme Court s decision in Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008) limited punitive damages to the amount of compensatory damages awarded, creating a new 1:1 rule. The majority acknowledged that, despite criticism, recent studies prove that discretion to award punitive damages has not mass-produced runaway awards. In dissent, Justice Stevens argued judges already have the ability to rein in the anomalistic excessively high punitive damage award through the abuse of discretion standard. The majority, meanwhile, argued that like sentencing guidelines, imposing a cap on punitive damages could help ensure consistency in punitive damage awards. Which side do you agree with? The Court noted that its limitation on punitive damages was based on maritime common law, not the Due Process Clause of the Constitution. Yet in dissent, Justice Ginsburg questioned whether the Court was also signaling that any ratio higher than 1:1 will be held to exceed the constitutional outer limit? 3 Should there be constitutional limits on a jury s ability to punish a defendant deemed to have engaged in particularly outrageous conduct? Is a punitive:compensatory damages ratio an appropriate way in which to do so? Justice Stevens argued that evidence indicating that Congress affirmatively decided not to impose limits on punitive damages meant that the Court should adhere to a policy of judicial restraint and defer to the will of Congress. 4 Did the Court overstep its role in Exxon? The majority noted that if Congress disagreed with the new 1:1 rule, it could overrule the Court legislatively. 5 If you believe that the majority overstepped, does Congress s ability to have the final word alleviate separation of powers concerns raised by the Court s overreach? What do you think about the fact that after the Supreme Court invalidated the Civil Rights Act of 1875, almost 100 years of Jim Crow law passed before Congress overruled the Court by passing the Civil Rights Act? Louisiana and a number of other states have barred punitive damages except in a handful of statutorily proscribed cases. What role do you think punitive damages play in our legal system and what do you think of the policy choice to limit or eliminate them? 2 See Gatlin Oil Co. v. United States, 169 F.3d 207, 211 (4 th Cir. 1998), holding that damages covered under OPA are those that result from the discharge of oil or from a substantial threat of a discharge of oil. 3 Ibid. 4 Ibid. 5 128 S. Ct. at 2619.
Judicial Recusal Based on Industry Ties: As discussed in AFJ s recent Judicial Gusher report, many of the judges in the Fifth Circuit maintain significant investments in the oil and gas industries, have represented oil and gas companies before becoming a judge, and attend oil industry-sponsored retreats. 28 U.S.C. 455(a) requires a judge to recuse him or herself from any proceeding in which his impartiality might reasonably be questioned. This prong of the recusal statute governs the mere appearance of impartiality. Meanwhile, 28 U.S.C. 455(b) sets out three specific scenarios that trigger mandatory recusal: when a judge has a financial interest in (1) the subject matter in controversy, (2) in one of the parties to the proceeding, or (3) in some other interest that could be substantially affected by the outcome of the proceeding. Does ownership in energy industry stock coupled with other ties to the industry create the appearance of partiality such that recusal is appropriate? If not, do you nonetheless see problems with judges that have close ties to an industry they must adjudicate? If so, what can be done about it? What are some of the practical difficulties that may arise in requesting that a judge be recused from the case? Is there a way to ensure that fear of repercussion, or damaging an ongoing relationship with a judge, do not inhibit litigants from invoking the recusal statute? Recently, Judge Martin Feldman refused to disqualify himself from hearing the legal challenge to the Obama Administration s six-month moratorium on deepwater drilling, despite a motion for recusal based on the fact that he held stock in oil and gas companies that would be directly impacted by the drilling moratorium. Can judges reasonably be expected to adjudicate their own alleged partiality? Other Recent Supreme Court Environmental Decisions: In recent years, advocates for the environment have faced an uphill battle in making their arguments before the Supreme Court. Professor Simon Lazarus, Director of the Supreme Court Institute at Georgetown University Law Center, called the 2008-2009 Supreme Court term the worst term ever for environmental interests, with the pro-environmental side losing to big business in five out of five environmental cases that term. Consider: In Rapanos v. United States, 6 the Court restricted the federal government s jurisdiction over the nation s waterways by narrowing the definition of navigable waters covered by the Clean Water Act even though pollution from waterways outside the Court s new definition can make its way into sources of drinking water for about 117 million Americans. As a result of the Court s decision, more 6 547 U.S. 715 (2006).
than 1,500 major pollution investigations have been halted and EPA regulators now say that they are unable to prosecute as many as half of the nation s largest known polluters. In Winter v. NRDC, 7 the Supreme Court held in a narrow 5-4 decision that interests in national security and military preparedness outweighed interest in protecting marine mammals from harm caused by underwater sonar devices employed by the Navy. As Justice Ginsburg noted in dissent, the use of sonar has been linked to mass strandings of marine mammals, hemorrhaging around the brain and ears, and organ damage. In Entergy v. Riverkeeper, 8 the five conservative Justices held that the EPA has discretion to conduct cost-benefit analysis in determining the best technology available, a requirement the Clean Water Act created in order to minimize environmental impact of cooling water intake structures at power plants. The Court s decision ignored the fact that the plain language of the statute requires use of the best technology with no mention of a cost-benefit analysis. Justice Stevens, in dissent, noted that cost-benefit analysis often, if not always, yields a result that does not maximize environmental protection. Do you think that the current Supreme Court favors business and/or security interests over the environment? An Impartial, Effective Judiciary The tragedy in the Gulf is a stark reminder of why it is so important to have fair-minded, impartial judges on the federal bench. The President and the Senate must weigh a variety of factors in deciding whether to nominate and confirm candidates to the federal bench. Forty-four percent of President Obama s nominees have been women and people of color, a far higher percentage than for any of his predecessors. Does gender and racial diversity on the bench improve the impartiality of the judiciary as a whole? (For a full breakdown of Obama s nominees by prior profession see http://www.afj.org/check-the-facts/nominees/afj-report-state-of-the-judiciaryobama-at-20-months.pdf at 13-14.) President Obama has nominated 37 candidates who have previously served as prosecutors, compared with 14 nominees who have served as public defenders. Does having federal judges with diverse legal backgrounds (i.e prosecutors, public defenders, professors, state judges, etc.) improve the impartiality of the judiciary as a whole? [For a full breakdown of Obama s nominees by prior profession see http://www.afj.org/check-the-facts/nominees/afj-report-state-ofthe-judiciary-obama-at-20-months.pdf at 14-16.] If you were President, what characteristics would you look for in a judicial nominee? 7 129 S. Ct. 365 (2008). 8 129 S. Ct. 1498 (2009).
Should it matter if a nominee has strong ties to a specific political party? How can nominees demonstrate that they have made the transition from advocate to impartial adjudicator? Should Senators vote against nominees who say that they will be empathetic when considering parties claims? Can a judge be empathetic and impartial at the same time? President Obama has confirmed fewer judges at this point in his presidency than every president back to Nixon and a lower percentage of nominees than any president in American history. The number of empty seats considered judicial emergencies, as defined by the Administrative Office of the U.S. Courts, has grown from 20 to 49 during his tenure. If you were a Senator, would you vote against a nominee who would fill a judicial emergency as a form of political payback for delays in judicial confirmations during previous presidencies? At what point does the effective functioning of our judicial system outweigh political motives?