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Monday, October 29, 2007

Punitive Damages at Sea: Warning, Bad Puns Ahead

After a wondrous weekend in the Boston area, where my wife was giving a talk at Brandeis, we had the misfortune of spending 25 hours getting home to Tallahassee because of USAirways' incompetence.  That trip in itself should be a good segue to discussion of punitive damages.

On account of the time lost in transition, I found out from a student in my punitive damages seminar only this evening that the Supreme Court granted review of the Ninth Circuit's punitive damages decision in the Exxon Valdez case. Here's the NYT report and the wonderful SCOTUSblog post by Lyle Denniston, which has some helpful links to the various briefs.

One thing you'll notice is that Exxon's lawyers (the usual suspects including my bosses from when I spent a couple summers at OMM) have framed the inquiry as being chiefly and almost exclusively about maritime law and much less so about the conventional analysis that would be expected under the Due Process Clause.  It seems fishy that after almost 20 years of litigation, the maritime law issue comes into focus, when, to my recollection, this case has already gone up and down on appeal on almost every other issue. A quick perusal of the Brief in Opp on cert indicates some decent waiver arguments.

Meanwhile, Justice Alito has recused himself because he owns lots of Exxon shares (quite certainly more than I have), and so if I had to predict without knowing a lick of maritime law, I'd bet the decision below (which allowed $2.5 billion against Exxon in punis) is affirmed since Alito was part of the defendant-friendly 5-member majority in the Philip Morris case. That said, Philip Morris, like many of the other major SCT punitive damages cases, fails to split in conventional liberal-conservative blocs, and that lack of predictability is part of that which makes this area a lot of fun to study and teach--though probably more maddening to litigate. 

I plan on reading the various briefs filed and if I get my sea legs on the maritime issue's newfound prominence, I'll post some more thoughts. I will also be circulating an initial draft of my Retributive Damages project next month, both here on the blog and on SSRN, so stay tuned for more punitive damages coverage...

Posted by Administrators on October 29, 2007 at 08:24 PM in Current Affairs | Permalink


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I argue here that the same rules for vicarious punitive liability should apply in criminal law and in punitive damages. I don't think there's any reason to have a "the principal must ratify" rule for corporate punitive damages, when we don't have that rule for corporate crime. If you take the rule seriously, it would eliminate corporate punitive damages entirely, since corporations only act through agents.

Posted by: Chris | Oct 30, 2007 11:46:07 AM

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