Punitive Damages in Maritime Law

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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7 Responses

  1. Curt Cutting says:

    Senator Whitehouse has introduced a bill to do exactly what you discuss – change the 1:1 rule of Exxon Shipping. (See S.3345, the “Big Oil Polluter Pays Act.”) The proposed bill is so broadly worded, however, that it is almost certainly unconstitutional under the Supreme Court’s recent punitive damages jurisprudence.


  2. Chris says:

    Wouldn’t there be ex-post-facto/bill-of-attainder-like due process concerns with retroactive punishment, especially under the “fair notice” stuff from BMW?

    Exxon’s 4-4 bit on the food-chain issue is depressing to remember. If BP’s compensatories don’t bankrupt them, maybe the Supreme Court will resolve it. Hope Alito wouldn’t be recused on this one.

  3. vassil_petrov says:

    The question is can Congress change the law retroactively?

  4. JayR says:

    I’m also surprised by the 1:1 rule. Of all entities, oil companies should be the ones most liable for losses that are so widespread, in my opinion.

    See also:

  5. Jim Maloney says:

    V. Petrov asks whether the law re: punis may be changed retroactively. A good question. I followed the link C. Cutting provided, which raises the question of whether such an Act would be constitutional. The way I see it, Exxon v. Baker is jurisprudential, not constitutional, and BMW v. Gore straddles the fence a bit. You can call it a due process question, but you can call just about anything a due process question. An honest evaluation would examine whether a law expanding punis retroactively is subject to Ex Post Facto clause analysis. I think it ought to be. Any argument out there otherwise?

  6. Chris says:

    Calder v. Bull says E/P/F is only criminal, not civil.

  7. Jim Maloney says:

    OK. A state (or Congress) enacts a statute providing for “punitive civil assessments” (not “fines,” mind you) to be paid by persons or corporations found guilty of having committed a certain activity that was not prohibited before the enactment. Can we say with a straight face that that escapes application of the E/P/F clause? Ditto for retroactive punitive damages. Or, smoke:fire::punishment:crime (as in “Where there’s …”).