ex post facto civil laws
mm
The current limit for BP's liability in the Gulf oil spill is 50
million dollars iirc. That's a pittance, compared to the damage.
Can a law be passed that is retroactive?
If not that, if they hustle, can't they pass a law today and have it
signed to day that would at least increase the amount for damage
caused from the time it was signed until it's over?
Would they have to take th amount released after today until the end,
divide by the total amount released, and mulitply that times the total
damage? Or could they count all the damage that was caused by oil
starting at the time the laws was signed?
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Rich Carreiro
> Are ex post facto civil laws permissable?
>
> The current limit for BP's liability in the Gulf oil spill is 50
> million dollars iirc. That's a pittance, compared to the damage.
BP's liability for *economic damages* is $75 mil. There a $1.9
billion fund supplied by taxes on oil producers for the purposes of
paying out on economic damages (though I believe it's limited to $1
bil per accident).
BP's liability for *cleanup costs* is unlimited.
--
Rich Carreiro rlc...@rlcarr.com
Barry Gold
>Are ex post facto civil laws permissable?
>
>The current limit for BP's liability in the Gulf oil spill is 50
>million dollars iirc. That's a pittance, compared to the damage.
>
>Can a law be passed that is retroactive?
Probably. The courts have pretty much held that the "ex post facto"
rule applies to criminal laws, and to a limited extent to civil laws
that function like criminal laws (e.g., creating a cause of action
that didn't exist at common law). The basic underlying case is Calder
v. Bull (1798).
One example is the Adam Walsh Child Protection and Safety Act of 2006.
It imposes new registration requirements on convicted sex offenders,
and SCOTUS has ruled that registration requirements are not
"punishment" and hence adding new registration rules does not violate
the ex post facto rule.
Similarly, the Court has held that tax laws can be applied
retroactively in United States v. Carlton (1994). Carlton relied on a
provision of tax law that granted favorable treatment to selling a
company's stock to an ESOP. Congress then changed the law, and
Carlton sued. The 9th Circuit agreed with him, but the Supreme Court
overruled and allowed the retroactive provision.
Of course, as with many legal questions, this one isn't entirely
one-sided. For example, some states have extended the Statute of
Limitations on sex offenses (both civil and criminal). IIRC, the
courts allowed the SoL to be extended for cases where it had not
already expired, but not for those where the SoL had already run out.
For example, assume the "old" law specified an 8-year statute of
limitations. In 2008, the legislature passes a law extending that to
20 years. Under that ruling, the State could prosecute offenses that
happened after 2002, and would have until 2022 to do so. But any
offenses before 2002, which had already become non-prosecutable, would
not be revived by the law. (At least, that's the way I remember the
rulings.) IIRC, the same rule was applied to civil cases -- Congress
or the State could extend the SoL on civil cases, but not for cases
that where the Statute of Limitations had already run out.
Now, allowing an oil leak is (at least arguably) negligence, a Common
Law tort. So it's not as if Congress is creating a _new_ reason why
oil drillers can be sued. Instead, if COngress passed such a rule
they would be taking away a _benefit_ -- a protection against suits
above a certain amount. And that is (usually) allowed.
retroactively.
--
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Mike Jacobs
> Are ex post facto civil laws permissable?
Technically, the term "ex post facto law" refers only to a law making
something a crime that purports to apply to conduct occurring before
the law was passed. It does not refer to changing the civil law
governing the expectations of contracting parties or changing the
requirements of civil tort law (or recognizing a new tort). Those
standards do change from time to time, virtually every time a court
decides a new appellate case with precedental value, or a new statute
is passed. New case-law precedents are typically applied to any cases
that have not come to trial yet as of the date the appellate opinion
was published (that is, they are usually completely retroactive),*
while the effect of statutes varies: they may either be completely
retroactive (apply to all pending or future claims), may only apply to
_cases_filed_ after the statute's effective date, or may only apply to
_claims_arising_ after the effective date. Whether a statute
"should" say one or the other choice, and whether it is constitutional
to do so under the circumstances in which it is being applied, is a
complicated question beyond a quick answer. But, the constitutional
issue at stake there is simply due process, not "ex post facto
crimes."
* Some court decisions _do_ state that they are to be applied only to
cases arising after their publication, or (if it is a procedural
decision) to cases not yet in suit as of the date of publication.
This is usually done if the judges are in effect consciously _making_
new law, that is, if the change from existing law is so drastic that
it seems unfair to impose such a change on cases that are already in
progress. Otherwise, the idea behind complete retroactivity of new
case law is that the appellate judges' opinion is not _making_ new
law, it is simply _discovering_ what the proper unwritten rule had
been all along (or, more accurately, the proper scope and application
under particular circumstances of the existing, already widely known
unwritten common law rule, such as, "always act reasonably to avoid
causing harm to others").
> The current limit for BP's liability in the Gulf oil spill is 50
> million dollars iirc.
Says who? Limit for what? In what forum? Citation? Please don't
just throw numbers around without telling us what they refer to, and
where you got them from.
If you are referring to EPA-regulation-mandated pollution-cleanup
costs, that only refers to the actual cost of cleaning up the goop, it
does not refer to the evaluation of the total damage caused by the
spill. The former is a regulatory duty, while the latter is for the
court or jury deciding a tort or contract lawsuit.
To take an overly simplified example, it may _cost_ only $10/hour for
BP to hire a cleanup guy to throw an oil-soaked Picasso painting into
the incinerator. However, the _damages_ (loss caused to the owner of
the painting) is perhaps $100 million or more, even if the house where
the painting had been hung can be rendered squeaky-clean and free of
pollutants for much less money. Ditto if the pollution kills a prized
racehorse, or causes the death of some humans - there is a big
difference between chargeable cleanup costs, and claimable damages.
> That's a pittance, compared to the damage.
Perhaps, but it is _not_ a limitation on the collective total amount
for which BP can be sued by all of those who incurred damage as a
result of the spill, nor is it a limitation on any single tort damage
claimant. Unless there is some law out there I never heard of.
Citation, please?
> Can a law be passed that is retroactive?
Yes, and some are, while some are not.
> If not that, if they hustle, can't they pass a law today and have it
> signed to day that would at least increase the amount for damage
> caused from the time it was signed until it's over?
I don't understand the question. Perhaps because it's based on a
misunderstanding of the concept.
The duty of a polluter to pay for the costs of cleanup is an ongoing
duty, set by EPA regulation, totally separate from any tort damage
claim. The cap amount is also subject to change from time to time,
due to inflation and other factors. However, none of that has
anything to do with how much a victim can claim the BP spill cost
them, or how much a jury can award on such a claim.
> Would they have to take th amount released after today until the end,
> divide by the total amount released, and mulitply that times the total
> damage? Or could they count all the damage that was caused by oil
> starting at the time the laws was signed?
Again, those questions don't have an answer because they are based on
a misunderstanding of the concept. There is no limit AFAIK on the
amount of tort damages that can be claimed, or awarded, now or in the
future, in a case like this. If you think otherwise, please provide
a citation to the current law that says so.
--
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
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Cy Pres
> IIRC, the same rule was applied to civil cases -- Congress
> or the State could extend the SoL on civil cases, but not for cases
> that where the Statute of Limitations had already run out.
That's not quite it. Congress can extend the SoL but not on cases which are
already *adjudicated*. In other words, someone who had already filed suit after
the old SoL ran out but before the new SoL took effect, and had their case
thrown out on SoL grounds (and any appeals deadlines having expired) was barred
from bringing the case again under the new SoL. The case is Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211 (1995). This case was a response to Lampf,
Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991), in which
the Supreme Court applied a shorter SoL to certain stock fraud claims than
courts and litigants had previously believed to apply, and applied this new rule
to all pending cases in the federal courts. Congress passed a law changing the
application of the SoL in response to this interpretation by the Supreme Court,
purporting to negate the part of the Supreme Court's ruling which applied to
dismissed case. Plaut, a litigant whose case had been pending at the time of
the Lampf decision, and whose case was ruled time-barred under the Lampf SoL
tried to reinstate his suit. Plaut had not appealed the dismissal of his case
as time-barred by the District Court, and it had become final.
The Supreme Court ruled that their original ruling applied to dismissed cases,
and that Congress, although it could alter SoL's at will, including for
previously time-barred cases, it could not reverse the dismissal of cases which
had already been dismissed, and which were not on direct appeal. Therefore, a
plaintiff in a newly filed case, or a case still on appeal, could take advantage
of the new SoL, but a more diligent and speedy litigant whose case had already
been decided and was final could not.
Mike Jacobs
> On May 4, 6:51 pm, mm <mm2...@bigfoot.com> wrote:
> > The current limit for BP's liability in the Gulf oil spill is 50
> > million dollars iirc.
>
> Says who? Limit for what? In what forum? Citation? Please don't
> just throw numbers around without telling us what they refer to, and
> where you got them from.
Okay, since this spill is turning into a Really Big Deal, and is going
to be in the top news for awhile now, and I have heard from various
other sources continuing references to some mere-millions limitation
on liability similar to what mm mentioned, I thought to actually look
up the law mm was apparently referring to (since he didn't, even after
I asked him to....)
The $75 million cap on liability (not $50 mil as mm guessed) which the
OP referred to is found in the Oil Pollution Act of 1990, passed in
the wake of the Exxon Valdez disaster. The full text of the bill, as
passed and signed into law, can be read at
http://epw.senate.gov/opa90.pdf
> > That's a pittance, compared to the damage.
>
> Perhaps, but it is _not_ a limitation on the collective total amount
> for which BP can be sued by all of those who incurred damage as a
> result of the spill, nor is it a limitation on any single tort damage
> claimant. Unless there is some law out there I never heard of.
> Citation, please?
Well, the law _does_ limit the collective total amount of
_economic_damages for which BP can be held liable, not just the
cleanup costs (tor which their exposure to costs is unlimited). I was
wrong about that, got it backwards. But I was right that this limit
does _not_ affect _tort_ damages. In effect, section 1002 of the Act
sets up a "strict liability" or "no fault" statutory scheme in which
anyone with "economic loss" caused by a covered spill can claim
against the "responsible party" (subject to the cap) and section
1004(a)(3) sets a $75 mil per-occurrence liability cap limit, if the
spill came from "an offshore facility except a deepwater port" (which
is apparently how this drilling rig would be classified by the Act -
the limit is less if it comes from a single ship, more if it comes
from a port facility).
However, 1004(c) provides numerous exceptions to this limitation,
which would allow unlimited liabillity to be imposed. 1004(c)(1),
which is probably of most concern here, says "Subsection (a) does not
apply if the incident was proximately caused by.- (A) grioss
negligence or willful misconduct of, or (B) the violation of an
applicable Federal safety, construction, or operating regulation by,
the responsible party...." 1004(c)(2) elimitates the cap if the
responsible party tried to cover up its responsibility or failed to
cooperate in the cleanup or failed to obey orders regarding cleanup,
and 1004(c)(3) eliminates the cap for Outer Continental Shelf (OCS)
drilling rigs. Query, was the Deepwater Horizon (the rig that blew
up and sank in April) an OCS facility?
> There is no limit AFAIK on the
> amount of tort damages that can be claimed, or awarded, now or in the
> future, in a case like this. If you think otherwise, please provide
> a citation to the current law that says so.
As in any other tort case, a plaintiff would have to prove the basis
for liability, as well as damages, to collect beyond the no-fault
cap. Unlimited liability under the Act can be shown by either gross/
willful fault, or violation of an applicable safety, construction or
operational regulation - all very familiar concepts, none of which
pose too high a hurdle so long as evidence shows how the operator
screwed up. (Section 1003 of the Act provides defenses to liability,
if the defendant can prove the spill was due to an "Act of G-d" or an
"act of war" - again, very much like what the common law of tort
already provided (you're not liable in tort at common law if the cause
of the harm was not your own acts or omissions, but some unrelated
cause). Non-tort bases which can be shown which would also remove the
cap under the Act and make the operator strictly liable without regard
to further proof of fault include coverup/laziness in cleanup, or
operation of an OCS facility (which is always strictly liable for
_all_ damages resulting from its operation).
So, I know there was talk in Congress about retroactively raising the
cap to several billion (which is why mm started this thread), but in
light of the above, it hardly seems necessary, so long as fault can be
proven through violation of some regulation, even without showing
gross negligence or willful misconduct.