June 2, 2010
Over a month after the devastating explosion that took the lives of 11 workers and initiated the biggest offshore oil spill since Exxon Valdez, the oil continues to flow, and reports of corporate negligence and regulatory failure dominate the headlines. Much like the recent mining disaster in West Virginia, the BP accident illustrates the lengths to which some corporations will go to protect their bottom line at the expense of safety, and protect their hind ends when their corner-cutting measures end in disaster. These kinds of accidents illustrate the importance of a right that too many Republicans or "Conservatives" often trivialize: The right to seek restitution for injury to person or property caused by negligence or malfeasance. They also highlight the woeful inability of government regulations to protect the American people from corporate wrongdoers - yet another reason why our civil justice system is indispensable.
Turns out that Transocean - the owner of the rig that's currently spewing oil into the Gulf - has filed a petition in Houston, TX to limit its liability for damages caused by the spill to $27 million, even thought the final tally for damages is projected to run into the billions. Fox News Channel's Shepard Smith, clearly outraged by Transocean's attempt to evade full accountability for their part in the accident, recently discussed Transocean's actions with Judge Andrew Napolitan
"Why should [Transocean] be able to limit a damn thing, Judge? Ask the people who own restaurants and fisheries along the Gulf Coast if they'd like a limit . . . but it's a little late for that, isn't it? . . . And people [are] talking about limiting damages to these big companies that plopped their stuff down out in the the water! Who's looking out for the little guy? That should probably be Congress, but we also know that BP spent a record amount lobbying, more than $15 million in Washington last year. . . . They're clearly not trying to look like or act like good neighbors. You know those fishermen down there don't want their money, the hotel owners don't want their money; the fishermen want to fish and the hotel owners want to welcome guests, but they can't do that because of this and for that in America thankfully you still have to pay."
Shep makes a good point: Wrongdoers should be fully accountable for the damage they cause. And when a disaster of this magnitude happens, one is hard pressed to find a person who doesn't think the corporate miscreants responsible should be made to pay. Nothing, after all, casts the ruthless, profit-driven motives of corporate America into stark relief like a big industrial disaster and the shameful aftermath in which those responsible channel enormous resources into getting off the hook. What's odd is that so many on the Right lose sight of the importance of accountability when it comes to situations involving harm or damage inflicted upon an individual.
The drive for tort reform is a prime example of this double standard. Because I am a trial lawyer, I often find myself having to defend my "conservative" credentials merely because I believe that it is fundamentally unjust to place arbitrary caps on the amount of compensation a jury can award to a party with a legitimate civil claim. Conservatives love to demonize trial lawyers and their clients as greedy frauds seeking "jackpot justice," too often failing to consider the pain and suffering, the mental and emotional anguish of a person who's had the wrong leg amputated, or whose child has suffered brain damage in the delivery room, or who's experienced injury due to a prescription drug that was not properly vetted. Yet when they can see celluloid images of oil-soaked shores, Republicans are just as likely as Democrats to clamor for justice.
Why is this? Do conservatives value property more than they value human life? Is it a matter of scale? Is it permissible to allow corporate wrongdoers to escape accountability when they only harm one person instead of 100,000 people? Transocean is attempting to cap its liability for the oil spill by citing a maritime law passed in 1851, a maneuver so outrageous it is sure to fail. Despite their legal hail Mary, Transocean will likely get what's coming to them. As Shepard Smith predicted, they will have to pay. And whether their negligence harmed one person or a whole coastline of communities, it should be a jury that decides how much responsibility the company bears, not Congress, and certainly not the dictates of an antiquated and inapplicable maritime statute.
The importance of the civil justice system has been demonstrated though the oil spill disaster in one other major way: A jury is likely to hold corporations accountable for their misconduct in ways that federal regulators simply will not. Time and time again, in industry after industry, it has been proven that government regulators often do a sorry job of preventing the interests of big business from trumping the safety of the American people. This is because, so often, those responsible for enforcing industry regulations are former industry insiders who still have allegiance to or sympathy for their former employers. Such circumstances make for muddy regulatory waters. Add to this the influence of powerful lobbies, which are only too eager to provide perks like fine dining, travel - heck, even sports and sex - in order to endear themselves to the regulators who are supposed to ride herd on their behavior.
When the regulators fail to protect the people, the victims of that failure should have the right to seek justice in the courts, and this right should not be stymied by artificial, arbitrary caps on damages. Such policies undercut accountability and invite manipulation. In the final analysis, the only way to ensure justice in the marketplace is to provide a means whereby wrongdoers can be held fully accountable to their victims, and this means allowing recovery of damages proportionate to the harm suffered. Anything less is not fit to be called true justice.
Ken Connor is an attorney and co-author of "Sinful Silence: When Christians Neglect Their Civic Duty" He is also Chairman of the Center for a Just Society.