Exxon: Pouring Oil on Troubled Waters -- Part 6
-AKA-
How The Grinch Stole Christmas
For many years ... nearly 20 actually, the "standard" birthday or Christmas wish was "May Exxon come in this year!"
For the first Christmas in the lifetime of some young adults ... that will not be a Christmas wish this year.
We never knew; we never even seriously considered the possibility. Hardly anyone truly doubted; even those who gruffly claimed "Ah we'll never get nuthin; the courts are part of the "system" and the Exxons of the world run the 'systems'. The courts will never make Exxon pay what they owe us". Even that was essentially just bluster to cover up how deeply they cared.
Other than a handful of the crazy paranoids, we knew better. We knew the judicial system and the justice system were just different names for the same thing. To the utter shame of our country thousands of victims involved now know that was extremely naive. In addition to being bad simply because it was immoral, unethical and illegal; it also fed the rapidly growing disgust by the citizenry with the government, and; (particularly in Alaska the ramifications are especially critical) the mistrust, distrust and beliefs that they are an (illegal) trust with Big Oil. It may well be that Exxon will yet rue the day when they decided as a "matter of principle" to fight their victims with every possible weapon at their disposal; to throw so much money and lawyers at it the plaintiffs would be buried; to call in all chits, favors, lobbying benes and fight this in as dirty a "take no prisoners" and salt the earth battle as can be conducted.
But that day will do none of the current victims any good.
Because now, it, the unthinkable, the unbelievable, the life-shatteringly tragic has happened. [Nope, that is not hyperbole ... for many, many people their Exxon claim was their primary asset. And the only one that would give them a chance at a retirement that didn't solely consist of social security and food stamps].
This Christmas ... the first since 1989 ... we have no magical, mysterious "Exxon claim" keeping the holiday spirit alive. "Do you have a claim?" was a regular question; especially this time of year because we always hoped that someday we'd be able to buy that [fill in the blank] that we really couldn't afford "until Exxon comes in".
I don't know if pride goeth before a fall or not. But it certainly does at times after one. Through no fault of their own ... after a decade, certainly after two decades, people could not maintain the positive self-image that had seen them through so much of the rough, wild, hard ... but ultimately, intensely fulfilling life they led before Exxon dumped oil on them.
All many now lived for, wrapped in their bitterness, was making Exxon pay for destroying their lives and life styles. They believed ... these men who trusted nothing but their own two hands ... somehow had faith in our judicial system.
It is a sad thing to watch faith die.
But die it most certainly did, even among the most pro-court plaintiffs. It may have hit them the hardest because they really believed that the Court was above simple theft and now they know it is not. The Supreme Court stole our money. They "redistributed" it as President-Elect Obama likes to say. But the Supremes took from the poor to give to the rich. Sort of the "anti-Robin Hood". The Court will get away with it because there is no one to stop them. And it will not technically be considered "theft" because the Supremes are the ones who ultimately define all legal terms. But make no mistake, it was stolen.This is how it happened. This is how the Grinch stole Christmas:
I mentioned how the "pro-court" plaintiffs were taken and shaken by this decision. Sadly, I think the same realization has happened to the plaintiff lawyers who devoted their careers to this. I think they really believed in the system and (essentially all the main players that I met were that rare breed of top notch lawyer who truly believed they were doing good with their "life's work" and who truly -- believed in our justice system and honestly believed that right would prevail and that we would ultimately win (and not because they were being paid on a contingency basis and probably made 5 cents/hour for their time on this case over the 20 years since the spill). They apologized on behalf of the courts (!) to the fishermen for this process taking so long. As "officers of the court" as all attorneys are, they are part of the system.
It may be difficult for those who had no faith in the judicial system anyway (and who probably figured all lawyers to be crooks :) to believe the plaintiff lawyers who were sharp enough and had been practicing long enough that they were intimately familiar with the system truly had faith. Maybe I'm the naive one here, but I'm convinced that Brian O'Neill (and the entire law firm of Faegre & Benson - who were my attorneys) were honestly embarrassed that "their system" (the judicial system of which they are a part) took so long to render unto the victims what was the victims'. They never apologized because they thought the judgment might be in jeopardy. Oh, everyone knew it might get cut a bit ... and even the 50% cut that the 9th Circuit gave us was somehow ... acceptable because the interest the award had accrued by then offset the cut! :-)
But I don't believe that Brian or any of the main plaintiff attorneys believed there was a realistic possibility that the punitives would be hacked to the bone. As difficult as it is for the cynics to believe ... I honestly think that Brian and others believed ... both in the system and that we would get the majority of our jury award (and that those two propositions were necessarily intertwined.)
I haven't talked to Brian since the Supremes did their dirty work, but is fairly well assured that this is no longer true.
The "anti-punitive damage" crowd (primarily, though certainly not entirely, conservative Republicans) has been in control of the strings long enough that their political appointments to the Federal Court Bench were finally wielding the primary power. This is the George Bush "crowd" (and by that I am not pointing fingers solely at either George Bush individually for the totality of the damage; it goes back many years before them and included many people besides them). But it is made up of the people who favor "tort reform" which is just another euphemism for destroying punitive damages. Aside from the rare actually bribed judge or legislator, they believe this because the insurance companies and Big Business have scared the doctors, business people of all kinds and others with their demonstrably false malarkey. They contribute heavily to the campaigns of those who oppose punitive damages and who, when in office, will appoint judges and justices to the Federal Bench who agree with that litmus test. To a large degree federal judges "advance" from within. So, you appoint a pile of District court judges who agree with your litmus test and in a few years a lot of them are sitting on federal Appellate courts and some even make the Supremes. [Seven of the nine current Supreme Court Justices were appointed by Republican presidents (four by the Bushes), the other two by Clinton.]
They do this because they believe that punitive damage awards hurt the giant multi-national corporations (say, for example, companies like Exxon) that contribute so heavily to their campaigns and they hate anything that dips its hand into the pocket of Big Oil because ... well, you get the idea. The fact that the Bushes are, in fact, oilmen themselves didn't help their objectivity any either.
Bizarrely this is largely brought to you by people who decree that they are "strict constructionists" and who want only "strict constructionists" on the bench! They want judges and justices who follow the law, not make it. The inherent absurdity of this position is unclear to these people.
All "common law" is judge made law! That's what it means (although I'd bet well over half of the "strict constructionists" who, of course, believe in the Common Law, don't understand that is just another term for "judge-made law!") We are a "common law" nation (as opposed to many "civil law" countries where the bench has to follow the specifics of the vastly complex codified laws). In our country, Louisiana is the only example of a civil (code-based) legal system, which is a relic of their French heritage.
Our forefathers waged their "lives and sacred fortunes" so that we may have the benefit of a Constitution that enshrines "judge made law" because they knew that was so critical to protecting our liberties. Again, this "judge made law" is the "common law" ... no matter how many times I say it, there is a large contingent who will refuse to understand because they have been fighting to uphold the common law and to stop the judges from making law! Their lives have been devoted to riding a Push-Me Pull-You and they are incapable at this point in understanding what they are doing.
In civil-law countries (most of Europe, for example; indeed, most of the rest of the "civilized" world) the judiciary is generally a rubber stamp rather than a "balance of power" or third branch of government. This balance of power was so crucial to the Founding Fathers ensured that the protections of the common law were specifically provided for in the Constitution. In other words ... a strict constructionist should believe in judge-made law by definition!
Those folks who couldn't say enough bad about the French when France decided not to slaughter their young in exchange for oil for the U.S. ... (unknowingly ... which is a nice way of saying ignorantly) want us to adopt France's legal system(!)
The Founders were very careful and very specific:
U.S. Constitution; 7th Amendment: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
[Emphasis added.]
But that all got tossed. Those who are in the pocket of the insurance companies (whether they know it or not) and are in favor of Tort Reform and getting rid of punitive damages dislike opinions like, for instance, Roe v. Wade because the justices "made up" law [the law of privacy that they found written between the lines in the Bill of Rights to the U.S. Constitution ... but which is specifically provided for in the Alaska Constitution]. But in deciding that punitive damages should equal a certain percentage of the compensatory damage award ... the Supreme Court simply pulled that number out of the thin air without even a pretense of any other justification but that it seemed fair. [This is "strict constructionism"???] The Justices made far more law in the Exxon v. Baker case than they ever did in Roe v. Wade.
Very briefly, the Supreme Court's terrible "made-up law" in this case was to decide that punitive damages can only be within a range of damages tied to percentages of the recoverable compensatory damages.
The Court focused on the fact that the punitive damage award in this case was so large compared to historical standards. If size is a legitimate legal issue/consideration/criteria, then what they should have focused on was how large the companies are compared to historical standards!
The Supreme Court made a gross error that effectively destroyed many lives (except that, as noted previously regarding their infallibility), when it is the Supreme Court they don't make errors. Instead, they make "bad law". Yet legal scholars can certainly debate and determine whether it was a rotten decision even if it can't be an error since they have the power to change the common law and are not bound by stare decisis. (It is, however, Court policy to follow it unless they specifically determine that the earlier decisions were in error ... or that the world has changed so much that they no longer apply). The Court does not typically go around just ignoring the precedents set by earlier Supreme Courts, but gives them the utmost deference possible.
For hundreds of years the common law was generally interpreted to hold that the size of a punitive damage award should be based not on the size of the accompanying compensatory award, but on the size and profitability of the tortfeasor [the one who wrongfully causes the damages]. This Court switched those considerations. Even if I had nothing to do with the Exxon claims I could tell that this was bad law. In essence it is a "Get Out of Punitive Damages Card" that is valid only for giant corporations and insurance companies.
The Supreme Court completely abrogated the existing and ancient concept of punitive damages.
The theory of punitive damages is completely different from that regarding compensatory damages. The amount of compensatory damages is calculated by attempting to determine what the negligent acts of the wrongdoer have cost the victim and then come up with a number that tries to make the victim "whole". It is irrelevant whether the tortfeasor (wrongdoer) is rich or poor. What counts is the value of the damage (s)he caused.
Punitive damages are an entirely different concept. When a wrongdoer's behavior is so bad , so grossly negligent(or even intentional), or so "reckless" [or as often stated "so recklessly indifferent to the lives and property of others"], then our society, through the courts, developed within the "common law" a mechanism to punish these wrongdoers. It is not a criminal action. That differs in too many ways to explain at the moment. Indeed, about the only thing they have in common is their joint goal of punishing the wrongdoers. One reason it developed as part of the civil law goes back to that determination that a corporation is a "person" for legal purposes ... yet one cannot jail a corporation. Another mechanism for punishment was required.
For those reasons and others, the doctrine of punitive damages was created (by the English courts, before the founding of this country). Determining a standard for when they should apply, although responsible for the death of forests from the trees harvested to write books, articles and treatises arguing the point, is fairly straightforward, (although it may not have seemed so clear originally, it has, by now, had a few centuries of honing and clarifying).
If a wrongdoer did something so bad that it was bad enough or reckless enough that it "shocked the conscience" [eg: a classic example: turning the keys to a loaded oil supertanker over to a drunk who couldn't even legally drive a Ford pickup (as previously mentioned he'd lost his driver's license sue to drunk driving) and telling him to take it through one of the world's most pristine and productive waters in the world ... at night] then they would be liable to pay punitive damages as punishment for their recklessness.
The more difficult question lay in determining "how much" once it was determined that a company was indeed liable for punitives. It would make no sense to tie that award to the amount of damages done. Suppose an Exxon officer, while on company time at the annual Christmas party had imbibed a bit too much and wanted to see how big a splatter a balloon filled with crude oil would make when dropped from the 38th floor of Exxon's U.S Headquarters. Suppose further that, although accidental, the balloon landed on someone knocking them over, giving them a slight neck joint problem which resulted in medical bills and slight but permanent nerve damage in the neck (as well as soaking their clothes with oil). Ultimately in our example, suppose these actions resulted in a jury verdict against Exxon (as well as the balloon dropper personally), with the jury determining that the victim was damaged in the reasonable amount of $15,000. Suppose also that the jury decided that since all of the officers and directors were at the party and had all encouraged the balloon dropper, that the company had shown recklessness to a degree that warranted punitive damages.
If those damages were tied to the amount of the compensatory award of $15,000; even assuming that it was a multiple of it: say three times the comps. That $45,000 punitive damage judgment could come out of Exxon's next year's Christmas party fund and the whole thing would remain a big joke. If it had been George's Shoe Store that had rented a room on the 38th floor of a hotel for their annual Christmas party and all five of their employees had shown up, and everything else happened identically, the $45,000 punitive damage award (particularly on top of the $15,000 compensatory damage award) could easily send George's Shoes into bankruptcy.
This is clearly and demonstrably unfair. George's is being punished vastly more severely than Exxon for the identical actions. This breaches several Constitutional guarantees, including such things as equal protection and due process. It is basic hard-wired "even Supreme Courts can't change it" Constitutional law called "substantive due process" (which is much "tougher" than "procedural due process"). In this country ... people [and corporations are legally people] are to be treated generally equally by the court system. George's Shoes should receive approximately the same level of pain and punishment as should Exxon for the identical bad acts.
So instead, after struggling with it for years (which is an advantage that the common law has over statutory law ... the courts can more appropriately refine it) it was determined that for punitive damages, the only fair (and possibly the only constitutional) system was to tie them to the value of, and/or the earnings of, the tortfeasor. If, for instance, the jury thought that the act was bad enough that it should equal 2% of the company's net profit for that year ... George's might have to pay $5,000. Exxon, however, to feel the same amount of pain ... to receive a similar amount of punishment ... might have to pay, say, $800,000.000.
On February 1, 2008 Exxon nka Exxon Mobil, posted the largest annual profit by a U.S. company in the history of the universe. Exxon had a profit [not just gross income] of $40.6 billion dollars! They also had the highest quarterly net income of any U.S. company in history: $11.7 billion dollars of net profit for the last three months of 2007. They ruined the lives of tens of thousands of people, countless fish and wildlife, thousands of miles of pristine shoreline, with continuing and likely permanent damage and had been ordered by judge and jury to pay $5 billion dollars as punishment for their horrendously stupid and reckless actions. That is less than 6 weeks of their NET profit! It is frankly unconscionable that they should be able to be so reckless and do so much damage and receive such a tiny slap on the hand for doing so.
The spill covered 11,000 square miles! They oiled and blackened 1,300 miles of some of Alaska's most beautiful and bountiful shoreline. Pristine waters that teemed with fish and the mammals and birds that fed on them. By comparison, ANWR is a tiny bleak ugly piece of frozen tundra that is virtually incapable of supporting life. People demonstrate by the thousands to "keep ANWR" away from the Oil companies. Where is the public outrage at what Exxon already did which is thousands of times worse than it is even possible to do to ANWR.
Less than 6 weeks worth of their net profit was all the punishment they received for recklessly causing almost unimaginable damage! And the Supreme Court of the United States decided that was much too high and sliced it to approximately $500 million dollars. This is a company that makes $130 million dollars of net profit PER DAY!
The day when punitive damages actually punished the wrongdoer is clearly gone ... for the Big Boys. The giant corporations, the insurance companies, people who are well insured ... there will be no "punitive" remaining in "punitive damages". This is one of the most asinine decisions that the U.S. Supreme court has ever made and it will have horrendous consequences beyond the wreck of the Exxon Valdez! The big corporations are now free to behave as recklessly as they please. They risk less than four days of their net profit for the most egregious intentional or grossly negligent actions. And they managed to delay even that for just a few months shy of 20 years (and are claiming to the courts and will probably win, that they owe no interest on it).
If the idea is to spank the wrongdoer ... 10% if their net profits spanks them substantively but doesn't destroy them. Nor does it let them off with a limp wrist hand swat that they don't notice. That would be a reasonable criteria for punitive damages. But to comply with substantive due process and equal protection guarantees of the U.S. Constitution, punitive damages must be tied to the value and profitability of the company ... not (as the Supreme Court just did) to the amount of compensatory damages.
If the amount of punitives is tied to the amount of compensatories, as it now is following this Decision, then for exactly the same acts, either George's Shoes would be bankrupted, or Exxon wouldn't even notice the "punishment". This is flatly unconstitutional. Clearly a Court that understands the law and the Constitution and has enough I.Q. points to comprehend what today's Court did, will have to change this. This Decision and our Constitution cannot co-exist. But until the day that we have a Court that understands Constitutional Law 101, horrendous damage will be done; the corporations will gain vastly more power and control; the "people" will have lost so many of their rights and protections ... that I'm honestly afraid it might be too late.
By making the Supreme Court a lackey of the corpocracy we may well have just ensured that we will be passing on to our children and grandchildren a destroyed country which has totally reverted to corporate feudalism.
We should be ashamed.
This, then, is how the doctrine evolved such that the relevant standard focused on company size and income since the purpose is "punishment". It was on that basis that punitive damages have been calculated for most of our country's history and it is the instructions that Judge Holland gave the jury.
And it is this doctrine that the U.S. Supreme Court defenestrated [:-)] (threw out the window).
We are now back to that Never-Never land which I just finished describing and explaining why damages could not rationally or fairly be tied to the amount of the compensatory reward. But ... despite the fact that is impossible for it to be fair and that the only fair formulation was just destroyed ... that is exactly what the Supremes did and, because they are the Supremes, that is what is now the law of the land.
It is terrible. It is inexcuseable. It is horribly unfair. And it creates terrible law that will need to be applied to thousands of other situations in the next few years. The punitive damages doctrine was a valuable ... indeed critical ... part of the arsenal of justice. But it was an egg sitting on a wall and the Supreme Court came by and blithley knocked it off.
And all the King's insurance companies and all the King's multinational corporations are dancing hand-in-hand because they know that Humpty Dumpty cannot be put back together again.
In a display of corporate arrogance unmatched in modern times (well, perhaps, other than Enron giving top management huge bonuses just before closing their doors), Exxon vowed that as a matter of principle, and because it thought that people should be grateful to it (for all the work it did cleaning up the spill) instead of suing it, it would make sure the fishermen and other plaintiffs never received anything anywhere close to an award of that magnitude. Tragically, they successfully carried through on their arrogant pronouncement.
And so: your right to trial by jury in civil matters just got tossed because the jury verdict is now irrelevant if it isn't "politically correct". Indeed, it is part of an ongoing trend by the "Conservative Court" to take power away from the juries and trial judges (who are the only ones truly familiar with the case)! You right to trial by jury is eroding much faster than you probably realize.
Even a source as conservatively mainstream as Answers.com says this about it:
We now have law of politics instead of law of justice. Given various historical precedents (which is all a topic I will expand on in a later post), this does not bode well for the future of our country or the people in it.In a brief break from all the ranting I've been doing here, I'd like to single out three ... "entitles" if you will that performed admirably and deserve out deepest appreciations despite the ultimate outcome. First, believe it or not (! :-), the plaintiff lawyers. They did magnificently without a dime coming into their coffers for the whole 20 years.
Secondly, Judge Holland. Despite the fact that "chain of command" is probably more rigidly enforced in the court system [I will no long be referring to it as the justice system!], Judge Holland "was there" at the trial. Unlike every other judge he heard and saw the evidence. Unlike every other judge ... he watched as the jury stuggled through the difficulties presented in trying to reach a fair accomodation. Unlike every other judge he had the ability to question witnesses (judges can do that if they wish) and rule on the evidence ... including ruling evidence inadmissible so the jury (and appelate courts) didn't get to see it ... but he did. He knew right from wrong. He knew that the 9th Circuit was doing wrong. And he rebuffed them. Masterfully. Twice. It is amazing that they let him retire instead of tossing him from the bench. Because he did what he knew was right despite the orders form the higher muckety-mucks.
The third "heros"; who would get appropriate recognition as such if the case hadn't been trashed. (No one builds statues for the losers!) was ... the jury. At great personal sacrifice (and potential personal danger ... someone, presumably hired by the Oil Boys, threw a dead salmon in an elderly lady's front yard as a "warning"). She was one of those "on the fence" and the Oilees apparently thought they could scare her away from crossing them. They obviously don't know Alaskan women! :-) [It is also a spooky realization that they knew who was on the fence. Jury deliberations are supposed to be private. It appears they had infiltrated the jury ... or possibly the jury room.] In any event ... they are true heros. They did what they knew to be right after agonizing over their decision. They did so knowing that Big Oil knew who they were and bad things sometimes happened to people who "crossed" Big Oil.
Judge Holland and the jurors are people we should be proud to claim as "true Alaskans" in heart and spirit.
It wasn't the judge or jury that shafted the victims. It was one of the the giant multi-national corporations that will soon be (truth be told, already are) running out lives and economies more than we allow ourselves to believe ... and it was the judicial system that has been filled, fairly quietly, with the "approved selections" of the Big Boys and the conservatives such that now they have taken over from inside "without a shot being fired". Although the giant corporations had a huge hand in making it come to pass, they couldn't have done it alone. I blame the "strict constructionist" conservatives who have been in ascendence for the past few decades. They are the brain-washed backers of "tort reform" which is one of the greatest scams ever pulled on the American people. I blame them for their utter ignorance (which is simple to cure - it is ignorance, not stupidity that is our problem and that is morally blameworthy) in not understanding that "strict construction" requires that they believe in judge-made law since that is what the common law is; and the common law is guaranteed to us as surely; truthfully more surely, than the right to bear arms and is right up there with freedom of speech and religion.
I think it is good for citizens to get involved in their government. Civic affairs are important and public service can be exactly what it is called. Thomas Jefferson did what was necessary to serve his country, then went home. He didn't make a profession out of it. I think it is much more difficult to justify being a professional politician. That isn't just civic involvement. Once it becomes your career, your priorities change. You are no longer doing your civic duty to make government better. You are doing it to further your professional career.
I do not believe that it is possible for professional politicians to have the public's interest as "foremost" as a non-professional who is doing his or her civic duty to try to help out the country (or their little part of it ... serving on a county advisory board is morally just as admirable as serving in the state or even U.S. Senate).
But back to "tort reform". If the Legislature passes a constitutional law (questionable if it is even possible), limiting tort punitive damage awards ... that is one thing and the courts should examine that law when/if it properly comes before them with their constitutional maginifying glass. But to have the courts do it on their own as they did in this case ... to abrogate the common law and to "make law" they like better by pulling a concept and a number out of ... this is a G rated blog ... thin air ... these "strict constructionists" made [and made up] more law than the "liberal justices" the conservatives railed about for years.
Ultimately, if this is not soon changed (and I see no possibility of that for very many years), we will have lost the judicial system as a substantive part of our government. Oddly, they are castrating themselves at the behest of those who gave them their power. As far as our country goes, this is a recipe for disaster.
Very briefly, countries appear to have a choice when they evolve out of the "monarchial" or "totalitarian" phases of government and attempt to become what has, by really poor semantical choice, come to be called "democracies". They either make the courts a real functioning third branch of Government with substantial power over the other two (which have substantive, but different, powers over the Supremes in exchange); or ... that power vacuum gets filled by the military which is often forced to step in when the rest of the government gets out of control.
It turns out that governments, unlike storks, cannot long stand on one leg nor, like people, on two. To achieve any sort of long term balance by anything other than the barrel of a gun, a govenment must have three solid legs. If there is not a powerful working court system making up that third leg ... historically (and currently) around the world, the military (often of necessity, sometimes simply out of opportunity) steps in to become that third leg. So we have a simple but stark choice. Do we want the third leg of our government to be the courts or the military. It truly is that simple.
We have already surrendered, due to the insurance companies and Big Boy multinational corporations, the ability for a jury of real people to punish it with punitive damages (which was the only realistic way ordinary people could punish a giant corporation). That's one more of our extraordinarily valuable and rapidly diminishing supply of "protections for the people" that our Founders attempted to claim for us disappearing. Again, without knowing what they do ... the conservative "strict constructionists" who claim to believe in limited government and strong protections for the people, have emasculated the court system which was our only chance to maintain limitations on government and maintain strong protections for the people. They (these self-described "patriots") have already turned us into a corpocracy with many fewer rights and protections. Let's just hope that they have also not taken us too far down the path to a military dictatorship to stop on that slipperiest of slopes.
Many things caused this horrendous and incongrous result. Two stand out:
Exxon was evil. But, not to put too fine a point on it ... court systems are designed to deal with evil and to deal with it appropriately! So, although I think Exxon should have been a better corporate citizen if only for their long-term bottom line, it isn't their job to slap their own hand and tell it to get out of the cookie jar.
The courts were (are) packed with conservative judges and justices who do not believe that punishing giant corporations is a good idea. (How can the money "trickle down" if it is used to pay victims of the cheap greed that acquired it?) Let's face it. As much as I have disagreed with every Supreme Court (! :-) on occasion, at least the U.S. Supreme Court used to be made up of people who were smarter than the MENSA average. That clearly is no longer true.
The Exxon Valdez was a huge event in many ways. It is a much more critical decision than anyone seems to yet realize. For those whose lives it destroyed, that destruction is, of course, the primary effect of the ruling. And this happened because the insurance companies and multinational business interests have slickly (and sucessfully) worked at brainwashing the populace with fear techniques.
They cleverly convinced the constitutional "strict constructionists" that tort reform was required to keep us on track with the Constitution. It is not. Tort reform is just an honorable sounding name for taking away the jury's right to punish a corporation ... or well insured individual ... for actions unacceptable in a civilized society; and the corresponding right of the victims to be awarded the benefit of such punishments because they were unacceptably mistreated [well beyond the "treated negligently" standard which is used for compensatory damages] and because, frankly, the standards for compensation for negligence often don't come close to truly making the victims whole.
They certainly didn't in the Exxon case. Justice was not done. Injustice was purchased by those who have a lot more money than anyone opposing them, and the determination was, in the end, a political decision, instead of one that resulted from the intelligent, trained ponderings of our greatest legal minds.
Lawyers and judges like to say "hard cases make bad law". This refers to a situation where the apparent equities in a case make one want to rule in a way favorable to a sympathetic person or position ... but doing so would create law that if followed in subsequent cases would bring negative results. And we do follow the law as set forth by the Supreme Court. To do otherwise would result in sheer chaos as each court and jurisdiction took off following their own predispositions and "court shopping" would be the name of the game. This doctrine of stare decisis is (a critical) part of the common law guaranteed to us by the Constitution.
But the Supreme Court decision that ended the case of the Exxon-Valdez, and its eventual ramifications, was the most major (although so far generally unrecognized as such) event of all of the events involved in the history of this sad twenty year saga and the court's pathetic final ruling.
We all bear responsibility in allowing the system to get so far out of whack.
And we should all be ashamed of ourselves.
To Be Continued:
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