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Thoughts on the Gulf Spill

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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1 Response

  1. Jim Maloney says:

    As I’ve posted elsewhere, an honest evaluation of any retroactively applicable legislation expanding punitive damages beyond Exxon’s 1:1 punitive-to-actual ratio should examine whether the Ex Post Facto clause applies. Whether one calls punitive damages civil or criminal, the stated purpose of awarding punitive damages is to punish (note the common root in both words) and, correlatively, to discourage wrongful conduct. I say this not because I’m a BP defender (they are not a client of mine) but because calling essentially criminal-type sanctions (imposed retroactively) “civil” is an end-run around the Ex Post Facto clause. Accepting such rubric-based sophistry is not all that far from accepting that email is not “speech” protected by the First Amendment. But a point raised in Prof. Magliocca’s para 2 is worth some further thought: Congress has pretty wide latitude in amending the Bankruptcy Law, so insulating the “Fund” from future potential creditors in a bankruptcy ought to be fairly easy provided the political will is there. Of course, that may be like summoning up demons: what other pre-petition sheltering might it allow? To extend the pun further and to borrow from an ancient Currie article about ferderalism and the admiralty, the devil in that particular mess is in in the details. It would require some “slick” drafting.

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