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ATL Idol: Week 3, Head-to-Head Round

Wednesday, August 13, 2008 3:32 PM - By David Lat

We’re down to your last two ATL Idols: FROLIC AND DETOUR and SOPHIST. It’s time for them to face off in the third and final head-to-head round of ATL Idol, the reality-TV-style talent search for Above the Law’s new editor. You know the drill, but if you’re just tuning in, here’s how this round will work:

ATL Idol Above the Law Idol AboveTheLaw Idol smaller.jpgThe head-to-head round is designed to serve as a test of pure writing ability. We’ll publish the contestants’ different takes on the same (assigned) story. The head-to-head round is designed to show how the bloggers write up the same story, to eliminate any advantage from story selection. Story selection is an important skill for bloggers, but it’s one that the contestants have demonstrated in their features and freestyle posts.

Just like the past two weeks, this round will be reviewed by ATL’s panel of celebrity judges: Ann Althouse, Tom Goldstein, and Dahlia Lithwick.

Check out the bloggers’ contributions, after the jump.

Here are the takes of FROLIC AND DETOUR and SOPHIST on the same story, marked with each contestant’s avatar (at the top of each submission). We gave them this link:

Any Interest in the Exxon-Valdez Case? The 9th Circuit Will Decide [WSJ Law Blog]

And a length limit of 400 words. Here’s what they came up with (presentation order determined by coin flip):

avatar Frolic and Detour ATL Idol.jpgPole Position: Is That a Silent Protest, or Are You Just Happy to See Me?

By FROLIC AND DETOUR

Remember the 1989 Exxon Valdez oil spill? It’s been keeping lawyers busy for close to twenty years.

30,000+ plaintiffs, including fishermen, local governments, and Alaska natives, have been pursuing a mass tort action since shortly after oil hit the beach. The Supreme Court, which reduced a multibillion-dollar punitive damages award in the matter, has kicked the question of interest on punitives back down to the Ninth Circuit. Class action litigators (myself included, at least for now) will want to keep an eye on this. Scotusblog has covered that angle nicely.

Shame Pole.jpgBut at ATL, we’re more intrigued by a creative response to the problem of multi-decade litigation. Exxon may be immortal, but old fishermen aren’t. About twenty percent of the plaintiffs have died since the case was filed. So while the federal courts pondered the matter, a frustrated Alaska resident resorted to a speedier path to justice: carving totem poles.

The native tribes around Prince William Sound rely on a form of alternative dispute resolution called the shame pole. The purpose of the pole is to force “some person of high standing to meet or recognize an obligation” via public rididule. Artist Mike Webber hand-carved the seven-foot Exxon shame pole with images of dead otters, out-of-business fishermen, and corporate villains.

The Exxon shame pole gets around; it has its own MySpace page, and it made it down to DC for the SCOTUS oral argument in February. It’s even shared the stage with the governor of Alaska. So far, Exxon has shown no sign of embarrassment, but for a fair comparison with the federal courts, we should evaluate the pole’s effectiveness after nineteen years.

No word on whether Exxon plans to erect a shame pole decorated with worried shareholders in front of Webber’s house.

avatar Sophist ATL Idol.jpgTHE EXXON-VALDEZ CASE: HAVE YOU EVER TRIED SEPARATING MONEY FROM OIL?

By SOPHIST

Ask Minneapolis-based law firm Faegre & Benson how meaningless jury awards of punitive damages are. 17-plus years after the Exxon-Valdez emptied her cargo into the Prince William Sound, Faegre & Benson is now fighting Exxon over interest payments, and still losing.

On Tuesday, by a vote of 5-3 (Exxon stockholder Justice Alito recused himself), the Supreme Court remanded the question of whether the petitioners are entitled to interest on unpaid punitive damages.

Penguin Fire.jpgThe interest, if awarded by the 9th Circuit, could be as much as $490 million. The award would be crucial to Faegre & Benson, who will need to recoup upwards of $180 million in legal fees generated by representing 2,600 of the 32,000 plaintiffs, mostly Alaskan fishermen, harmed by the oil spill. Faegre & Benson’s clients cannot hope to be so fortunate. Some clients, like Peninsular Aleutians Roe Herring, stand to gain as little as $19 and a flammable penguin, according to Faegre & Benson’s payout calculator.

Even with half a billion dollars up in the air, attorneys at O’Melveny & Myers have certainly earned their fees during their 15 year representation of Exxon. At trial, the jury hit Exxon with an historic $5 billion punitive price tag. That was slashed first to $2.5 billion, and then reduced again in June to $507.5 million. The Court’s June decision brought Exxon’s punitive damages in line with their compensatory liability, drawing upon principles of substantive due process and maritime common law (who said that maritime law was an utterly useless law school class?).

Meanwhile, there was much gnashing of teeth over at Faegre & Benson. Brian O’Neill, an attorney who has dedicated 12 years and one marriage to this case, said that Exxon’s “history is to jack people around until the last day.”

Whatever the 9th Circuit decides, the interest question will likely be before the Court again. The Court failed to comment on the application of its own Rule 42.1. As Lyle Denniston explains over at SCOTUSblog, “the Rule also says that, if the Court has ‘modified or reversed’ a lower court’s judgment, and ordered the lower court to award ‘a judgment for money,’ the Court would provide ‘instructions with respect to the allowance of interest.’”

The lesson to plaintiff attorneys: settle.

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Posted in: 9th Circuit, ATL Idol, SCOTUS, Supreme Court

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