The Oil Pollution Act of 1990: A Glance in the Rearview Mirror

This Article recreates the state of oil pollution procedures and processes in 1989 and the mindset that existed among the legislators tasked with fixing a broken system. It will reveal the persons and events that shaped the single largest restructuring of pollution response in U.S. history. Finally, the Article will peek into the future and consider the impact of the Deepwater Horizon calamity on future revisions to the oil pollution response and compensation system.

It is noted that this Article is not intended to be a comprehensive review of how OPA 90 was created or the content of its provisions. That review has certainly been done countless times. This Article will consider primarily the aspects of the oil pollution statutory scheme that were broken at the time of the EXXON VALDEZ disaster, the variety of options available to lawmakers to correct those deficiencies, and whether the choices made by Congress accomplished the intended results.

The Deepwater Horizon Rig Disaster: Issues of Personal Injury and Death

On April 20, 2010, the mobile offshore drilling unit (MODU) Deepwater Horizon exploded and caught fire in the Gulf of Mexico. Eleven (11) workers were killed and seventeen (17) were injured. Three days later the rig sank, and millions of gallons of oil escaped into the Gulf of Mexico until the well was finally capped on July 15, 2010. Numerous lawsuits followed seeking compensation for the personal injuries and deaths as well as for property, business, and natural resource damages caused by the explosions, fire, and spill. These cases have been consolidated in the United States District Court for the Eastern District of Louisiana by order of the United States Judicial Panel on Multidistrict Litigation.

This disaster and the resulting litigation has brought national attention to the complex substantive and procedural issues that arise from such maritime accidents. It has also showcased the disparities in the remedies among classes of personal injury and wrongful death plaintiffs. While the litigation also involves claims for property damage, business loss, and damage to natural resources, this Article will analyze the issues strictly as they relate to the claims for personal injury and death. It will provide a broad overview of the rights and remedies of the injury and death plaintiffs and highlight the differences between the different plaintiff groups.

Odd Men In: The Fascinating Legal Kinship of Scotland and Louisiana

Conscientious scholarly exploration of a burgeoning family of mixed jurisdictions dates from 1958. Visiting Louisiana law faculties in that year, a Scots law professor, Sir Thomas Brown Smith, urged comparison of Scotland's legal system with that of Louisiana as “a means of overcoming the perils of isolation and steady assimilation by the Common Law." Spurred by Smith's lectures, scholars in time classified over a dozen hybrid systems into a “third legal family,” featuring a blend of civilian and common law influences. The private laws in a number of these jurisdictions (for example, Louisiana, Quebec, and Puerto Rico) were enshrined in a civil code of typically French or Spanish provenance. Although other mixed systems (such as South Africa and Scotland) had no civil code, their legal communities found “proto-codes” in major treatises and institutional writers indebted to Roman law.. . .

Decision By Recusal: Comer v. Murphy Oil USA Let's Naysayers and Disqualified Judges in the Fifth Circuit Determine the Outcome of a Case Without a Hearing

The United States Court of Appeals for the Fifth Circuit held that disqualified judges must be counted to determine the number of judges required for a quorum; because half the judges could not participate due to recusal and one vacancy, the court could no longer hear the case en banc, nor could they reinstate the earlier panel decision. Comer v. Murphy Oil USA, 607 F.3d 1049, 1055 (5th Cir. 2010).  

Proving Natural Resource Damage Under OPA 90: Out with the Rebuttable Presumption, in with the APA-Style Judicial Review?

In the aftermath of the Deepwater Horizon oil spill of 2010, President Obama urged Congress to amend the natural resource damage provisions of the Oil Pollution Act of 1990 to replace the rebuttable presumption of validity the law presently accords to damage assessments by the designated natural resource trustees that were conducted in accordance with regulations promulgated by the National Oceanic and Atmospheric Administration with the standard of judicial review prescribed by the Administrative Procedures Act (APA). Although the House of Representatives passed such an amendment in 2010, the Senate failed to act on the amendment before the 111th congressional term ended. Nevertheless, White House and congressional support in the wake of the 2010 spill suggests that the proposal is likely to resurface in the near future. Accordingly, this Article examines the meaning and effect of the proposed substitution of APA review for the existing rebuttable presumption, potential difficulties in implementing the new standard, and whether the amendment might unconstitutionally deprive spillers of the right to a jury trial.

Beyond Profit: Rethinking Corporate Social Responsibility and Greenwashing After the BP Oil Disaster

The explosion of the BP-leased Deepwater Horizon and subsequent oil spill stand as an indictment not just of our national energy priorities and environmental law enforcement; they equally represent a failure of Anglo-American corporate law and what passes for corporate social responsibility in business today. Using BP and the disaster as a compelling case study, this Article examines green marketing and corporate governance and identifies elements of each that encourage firms to engage only superficially in corporate social responsibility yet trumpet those efforts to eager consumers and investors. This Article then proposes reforms and protections designed to increase corporate social responsibility, root out greenwashing, and recognize liability for corporate social responsibility frauds on consumers and investors. One of these protections derives from the newly enacted Dodd-Frank Act, whose Bureau of Consumer Financial Protection could play a leading role in policing fraudulent claims of corporate social responsibility.

Deepwater Horizon: Removal Costs, Civil Damages, Crimes, Civil Penalties, and State Remedies in Oil Spill Cases

What is the current scheme in the United States for dealing with oil pollution? This Article examines the question from several perspectives. These include the basic liability regime, including removal costs and damages. OPA has gone further than any other statute in providing for both public and private remedies. The discussion will cover the basis for liability, parties responsible for paying removal costs and damages, defenses to liability, damages recoverable by governmental entities and private parties, limitation of liability, including loss of the right to limit, insurance, and other forms of financial responsibility. This Article will briefly address the claims procedure, including claims made against the Oil Spill Liability Trust Fund. This Article will then discuss possible criminal prosecutions followed by administrative and civil penalties. Finally, this Article will look at choice-of-law issues with particular attention devoted to the role of state laws.  

Combating Antimicrobial Resistance: Regulatory Strategies and Institutional Capacity

Amnesia is a common, important, but rarely noted side effect of antibiotics. Apart from medical historians, few recall the severe morbidity and mortality once associated with acute bacterial infection. However, decades of antibiotic overuse and misuse have compromised the long-term availability and efficacy of these life-saving therapies. If designed and implemented appropriately, regulation can reduce the risk of bacterial infection, reserve antibiotics for circumstances where they are necessary, and rationalize the use of the most powerful agents. Regulation of antibiotic resistance can be justified, and should be guided, by both efficiency and fairness. A range of regulatory options are available--some information-based, some incentive-based, some command-and-control--each of which has indications, strengths, and weaknesses. A desired set of regulatory strategies must then be matched with the appropriate legal and regulatory institutions. A renewed focus on regulatory and institutional design has significant potential to reduce antibiotic-resistant bacterial infections and increase the effective life of existing and new antibiotics.

Doctors as Bankers: Evidence from Fertility Markets

In a variety of medical contexts, doctors play a prominent role as bankers, lending directly to patients or arranging for patients to obtain loans from third-party lenders. I offer evidence of this activity from fertility markets based on an empirical study of virtually every fertility clinic's Web site in the United States and on interviews with key market participants. I find that doctors play an important role in patients' decisions about credit, discussing credit with patients, and even recommending and promoting specific lenders to patients while excluding consideration of other potential lenders. Despite the prevalence of this conduct, the law generally does not regulate doctors as bankers. Patients largely are left unprotected by current regulations, but they face significant problems when doctors act as bankers. Patients, vulnerable to their physicians' suggestions, often uncritically accept financial advice from their doctors. Instead of shopping for the best loans, they take the loans their doctors select for them. But, doctors face a conflict of interest when choosing which lender to recommend because different lenders charge physicians different amounts when patients pay for services with loans. Also, patients often are left confused when doctors present piecemeal information about lenders, and patients end up taking out loans with unfavorable terms.

In light of these problems, I offer a potential regulatory framework to regulate doctors acting as bankers. I suggest that regulations should require doctors to disclose the basic loan information that the Truth in Lending Act currently requires lenders to disclose. Moreover, policy makers should require physicians to disclose the financial arrangement between themselves and the lenders they recommend and, if they recommend lenders, to recommend to patients at least three potential lenders to encourage price shopping.

Governing the Presidential Nomination Commons

States jockeying to hold primaries and caucuses as early as possible has become the central theme of the presidential primary system. While the trend of racing to vote is not new, it has increased alarmingly. In 2008, more than half the states held contests by the first week of February. This free-for-all hurts the democratic process by encouraging uninformed voting, emphasizing the role of money in campaigns, and pressing candidates to rely on sound-bite campaigning. Because the presidential nomination is one of the most important decisions left to voters in the United States, this problem is well-recognized. It is also widely misunderstood. This Article casts the problem in a different light, demonstrating that the front-loading of the nomination process is a classic tragedy of the commons. Recognizing the problem as a commons dilemma provides a powerful explanation for the trend towards earlier primaries and, more importantly, provides insights into how best to reform the nomination system.