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Oil and Water: the Exxon Valdez Case Runs Aground at the Supreme Court

Publication Date: 
February 27, 2008
Dahlia Lithwick

Slate editor (and Stanford Law School alumna) Dahlia Lithwick reports on the Exxon Valdez hearing, from the Supreme Court, and quotes Jeffrey Fisher:

Professor Jeffrey Fisher of Stanford University represents the class of plaintiffs in this case, and in addition to having the best hair of the Supreme Court appellate bar, he is also one of its coolest new additions. With respect to whether Hazelwood was in fact Exxon's "managerial agent," Fisher contends he was, but argues that the important thing is Exxon's misconduct, not the captain's. It was Exxon that overlooked its own policies and put him in charge of this "business unit." Once they gave him authority over an aspect of the business, he became an agent.

"A janitor has authority over an aspect of the business," snaps Scalia. When Fisher replies that Chief Justice Roberts himself had earlier stated that corporations act through their people, the chief cuts him off to remark curtly, "That was a question. Not a statement."

Justice Kennedy says Hazelwood could not be an agent of Exxon if he was violating express company instructions by drinking on the job. Roberts asks Fisher to cite cases in maritime law that included punitive damagesand Fisher concedes that the applicability of punitive damages awards in admiralty law is "an open question with a smattering of cases pulling in different directions." He says there is a dispute among the appeals courts, "and that's why you agreed to hear this."

Roberts worries that if Exxon is liable for the acts of Hazelwood, what can a corporation do to protect itself when its agents act against company policy?

"They can hire fit and competent people," replies Fisher.

"But that is its policy," says Roberts. "What else can it do?" Fisher says it can implement its policies, which Exxon did not. "There were 33 instances of Exxon employees drinking with Hazelwood over a three-year span."

Fisher finally takes aim at Exxon's claim to have been punished enough. He says it was not until the end of the legal process that Exxon's complicity in the spill really came to light, referring the court to a DVD he's sent them illuminating the misconduct in detail. Fisher reminds them that "in the wake of the spill, Exxon fired one person—Hazelwood—reassigned one, and everyone else received bonuses and raises."