Thursday, February 28, 2008
At least for our result-oriented friend Justice Scalia, its all about the money. Yesterday when the Exxon Valdez punitive damages case was argued before the U.S. Supreme Court, plaintiffs' counsel Jeffrey Fisher suggested hopefully that the justices had agreed to hear the case because of an unsettled aspect of maritime law, Scalia said sharply: "That," the justice said, "and $3.5 billion." SCOTUS argument transcript for Exxon Valdez
So count the votes.
Votes to overturn the appellate court's decision reducing the verdict to $ 2.5 billion and award no punitive damages: Scalia, Roberts, Thomas. Roberts would argue the corporation cannot be punished without culpability. Scalia and Thomas would argue no punitive damage award is ever appropriate.
Votes to reverse and remand for punitive damages to roughly $ 800,000, which would be twice the compensatory damages consistent with the rule of thumb suggested previously in State Farm: Kennedy, Breyer, and Souter.
Votes to affirm: Ginsberg, Stevens. Ginsberg showed her sympathies. Stevens limited his questions to those about Exxon's responsibility for the Captain's actions -- phrased in a way that suggests he believes Exxon is liable.
My guess. 6-2 limiting damages to twice the amount, with concurring opinions by scalia and roberts. Alito is not participating. Lots of media are talking about the consequences of a 4-4 split, which would affirm. I don't think there's any chance of that.