Distraction, Indifference, and Remedies

First year students learn that the end game of any case is the remedy. A whole defense is enumerated under the Federal Rules of Civil Procedure to highlight the importance of importance of a remedy for sustaining a viable case. See Fed. R. Civ. P. 12(b)(6), “failure to state a claim upon which relief can be granted,” and Fed. R. Civ. P. 12(h)(2), allowing the defense to be raised by pleading, motion, or during trial. Law school discussions center on notions of "efficiency," "just how much is enough," and understanding judge and jury. The questions on efficiency and sufficiency are billed as normative proxies for justice. Most professors and students lose faith in the jury system, be it because a random sampling of society cannot come to fair judgments in sophisticated cases or because they “runaway” with exorbitant judgment amounts.

In my Civil Procedure class, we read Exxon Shipping v. Baker for its discussion of punitive damages. Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 (2008). In this case, the initial jury judgment was over $5 billion, but after multiple appeals, reaching the United States Supreme Court, damages were limited to a mere $500 million in compensatory damages and $500 million punitive damages. Aside from the extraordinary environmental and ecological damage the Exxon Valdez oil spill caused Prince William Sound, Alaska in 1989, what was sorely lacking in the discussion was a discussion of the initial plaintiffs: the human victims of the spill. Any attempt to discuss whether the Supreme Court’s decision to limit punitive damages to a 1:1 ratio was dismissed, though it was an example of the confluence of the legal fiction dichotomy of law and fact, in what was presented as a question of law. As law students, we did not stop to consider how much each harmed Native Alaskan or fisher would need to survive for a couple years before finding a new livelihood along a different piece of untainted seashore. We did not ask, likely because many of us are so young and lack an understanding of everyday life outside privilege and academia, how much was enough to make a family whole and who would be in the best position to make such a judgment. In my opinion, a set of twelve Alaskan jurors is in a much better position to know what is justice in this case than a law student in Manhattan or Harvard Law Review alumni. Here, I echo Justice Stevens’ final words of his dissent in Scott v. Harris, “In my judgment, jurors in Georgia should be allowed to evaluate the reasonableness of the decision to ram respondent’s speeding vehicle in a manner that created an obvious risk of death and has in fact made him a quadriplegic at the age of 19.” Scott v. Harris, 127 S. Ct. 1769, 1785 (2007).

More than twenty years after the 1989 oil spill, in 2011, plaintiffs began receiving payments from Exxon. If you do the long division, and if every one of the 35,000 plaintiff class members shared equally, each would receive at most $30,000--not counting the legal fees. In reality, according to local Alaska news sources (they still care to follow the story), payments range from a few dollars to $50,000. As a matter of civil procedure, would it not have been crucial to know that the end game of a case would arrive over two decades later? Why does the legal academy make me feel like I'm going rogue for asking these functional questions, following the litigation, and researching their real-world effects? Why was it more important to learn about Justice Souter's magical 1:1 ratio for compensatory and punitive damages? And if there was anything redeeming about this decision, it was that if anything, justice was found for Exxon: its corps of innocent employees worldwide and its shareholders. We forgot about the Facts in favor of the meaningless, human-less, Rule.

Blaise Pascal's Pensees describes distraction as man's attempt to escape reality. Indifference about those who are to benefit or suffer from the end game, be they plaintiffs or defendants, is the first distraction towards an indifference to justice—and towards an unethical practice of law. This notion is so close to the heart of the law, that the New York Appellate Division Courthouse erected a memorial named “Memorial to Victims of the Injustice of the Holocaust.” Framing a relief of an aerial view of the main camp at Auschwitz is the inscription, “Indifference to Injustice Is the Gate to Hell.” Above and below the aerial view, carved flames recall the flames of the gas chambers at Auschwitz.

I came to law school because I wanted to join a profession that is ultimately about counseling human beings and facing their realities with them, making them whole again. A discussion of remedies or damages is meaningless without a real, down-to-earth and empathetic understanding of the actors in the balance. This is what can and does make lawyers extraordinary: to find their marketplace among the realities of their neighbor.

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-- ArleneOrtizLeytte - 14 Jun 2012