Fordham Law School

Remedies
Final Examination Spring 2014
Prof. George W. Conk
INSTRUCTIONS
There are two questions. You must answer both. Work to answer
each question well. I will grade your exam for its overall strength, not
on a strictly arithmetic basis.
The word limit is 3,000.
You have 48 hours to answer, complete upload/return this exam from
the moment of download.
Late papers, if accepted, will be downgraded 1/3 grade.
THIS IS AN OPEN BOOK EXAMINATION.
There are no restrictions on materials that may be used. However, you may not
consult with any other person while working on the exam and may not disclose
the examination questions to any other student or discuss the exam or the
questions with anyone until the end of the exam period. Graduating
students must submit their answers by Wednesday, May 7
th
at
5:00PM and non- graduating students must submit their answers by
Tuesday, May 13
th
at 5:00PM.
You must type your answers and insert your Exam Identification Number
(begins with the letter E) and graduation year on the top of each page of your
answer. Do NOT otherwise disclose your name, Fordham ID number or social
security number. Your answers must be typed, using a 12 point font (preferably
Georgia spaced at 1.25 or 1.5)
If you are graduating please note that at the top of the paper so that I am
sure to get your grade in by the deadline.
This is not a research paper. You should be able to answer these
questions using the materials assigned or referenced in the exam itself or
on Torts Today.
Your objective is to write a coherent essay - identify relevant issues and
dispose of them: reach conclusions. Lawyers are rhetors. Their objective
is to persuade. See, e.g. Judge Aldiserts advice at
http://blackstonetoday.blogspot.com/search?q=aldisert
In preparing for the exam you might want to read Strunk & White -
Elements of Style for reminders on concise writing. It just marked its
50
th
anniversary in print. Sentences and paragraphs must end.
Generally sooner rather than later. If a paragraph is entering its 4
th
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sentence, think again. See, for an example:
http://blackstonetoday.blogspot.com/2010/03/blog-post.html
Verbs should have objects. E.g. RPC. 1.8 broadly bars acquisition by an
attorney of pecuniary interests adverse to those of her client. (17
words) Rather than AThe Model Rules, 1.8 in particular, generally
don=t let lawyers develop business interests that are in conflict with
those of their clients, except for certain circumstances which are set
forth in the Rule itself.@ (34 words) Twice the words, with no
appreciable increase in content.
You need not conform to blue book requirements. If it is a case in our
materials fuzzy cites are enough, e.g. Robins Drydock. If it is a dissent,
name the dissenter and the case. If you have found a new source, a full
cite should be used (e.g. Smith v. Jones, 343 US 202 (1977).
Ordinary rules regarding quotation, citation, and plagiarism apply. The
source of the observation or insight must be cited. Quotes must be in
quotes and paraphrases must be cited as to source. Statements like
this are OK:
As Justice Holmes observed in Robins Drydock 85 years ago there is
generally no recovery in tort for economic losses negligently inflicted
unless the plaintiff has suffered injury to his property or person.
Rule of thumb: rule each paragraph that asserts a rule of law should have
a reference to some authority.
I suggest that you first read through the complete exam. After you get
over the sticker shock, while you are answering one question thoughts on
the others will simmer on the back burner. Before you start writing I
suggest you make an outline - or sketch out the issues you want to touch.
These are essay questions. Therefore good sentence structure, sensible
paragraphs, and readability are important.
Your principal object is to analyze the issues, identify the appropriate
legal principles and reason to a conclusion. State your opinions and
defend them. A well organized argument, buttressed by reference to
authority, which discusses the issues in an informed, critical way, is your
goal.
Concrete reference to the Rules, Comments, and other authorities is
valuable to clarity of thought and explanation. But a reference to a rule
number or a case by itself is not explanatory. The key is to present the
principle and explain the logic of the position you urge. The number of
the rule or name of the case just shows where you found the idea, or how
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you know it expresses the law. The essay should be understandable even
without the numbers or case names.
Brief identifying citations are all that is needed, e.g. Rest. ' 440, Cuyler v.
Sullivan, etc. are acceptable forms of citation. But the Rule number and
the case name are not a substitute for stating the proposition you are
asserting. E.G. `There is a Rule 23 issue here= is opaque. But A`FRCP
Rule 23 permits class actions only where common questions of law and
fact predominate. is helpful to the reader.
Future endeavors
I hope you found the course and the exam instructive. I expecct to teach remedies in
the fall 2014 and Professional Responsibility in spring 2015. I hope you will
recommend my classes to colleagues and to see you in my PR class.
I will continue my work as State Court Chair of the Faculty Clerkship Committee. We
support both current students and recent graduates. If you are interested in a post-
graduate judicial clerkship please feel free to contact me. Generally the sooner the
better.
- GWC
Page 3 of 10
Q. 1 From Topeka Kansas to Seattle, Washington: Lessons of Brown v.
Board of Education and its progeny
While it's tempting to adopt rules of law that give us the ultimate say on hotly
contested political questions, we should keep in mind that we are not infallible, nor
are we the repository of ultimate wisdom. Elected officials, who are much closer to
ground zero than we are -- and whose political power ebbs and flows with the
approval of the voters -- understand the realities of the situation far better than we
can, no matter how many depositions and expert reports we may read in the quiet of
our chambers. It therefore behooves us to approach issues such as those presented
here with a healthy dose of modesty about our ability to understand the past or
predict the future. It should make us chary about use of the strict scrutiny standard of
review, which proclaims us the ultimate arbiters of the issue and gives those who
oppose the policy in question every incentive to turn litigation, to paraphrase
Clausewitz, into a continuation of politics by other means.
Judge Alex Kozinski, concurring
Parents Involved in Cmty. Sch. v. Seattle Sch. Dist., No. 1, 426 F.3d 1162, 1196 (9th
Cir. Wash. 2005)
The United States Supreme Court in Brown v. Board of Education declared
unconstitutional the widespread laws in the southern and border states that
authorized or compelled racially segregated schools. The principal targets of de jure
segregation were African American students, though Mexican-American, and Native
Americans were often similarly segregated or grouped together with black students as
they too were colored. Strict scrutiny was applied to the various efforts of southern
governments to avoid the command of Brown. The object, declared the Supreme
Court in Green v. new Kent County was to eliminate the dual school systems root
and branch.
When the courts confronted racially separate schools in the north the product of
social forces other than statutory command the Supreme Court majority declared
in Milliken v. Bradley thus far and no farther, that is only de jure discrimination was
subject to the equitable remedies of integration. Only an official policy of racial
separation and discrimination would support a remedy for racial imbalance. Local
schools that were innocent of such practices were not to be burdened by the
remedies imposed on schools in states where racial segregation was mandated or
authorized by statute. The Supreme Court there found local control of education to
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be a traditional practice worthy of protection and did not treat the Detroit metro area
racial imbalances as a wrong that justified a remedy.
In the Seattle case cited above the Ninth Circuit majority wrote The dissent urges,
`The way to end discrimination is to stop discriminating by race. Bea, J.,
dissentingMore properly stated the way to end segregation is to stop separation of
the races. The Seattle school district is attempting to do precisely that. The Ninth
Circuit majority therefore deferred to the judgment of the Washington Supreme
Court which (on a certified question) had approved Seattles tie-breaker use of race
to achieve racial balance.
The United States Supreme Court did not defer to Washington state law which
approved the Seattle plan. Instead Chief Justice Roberts paraphrased Circuit Judge
Bea, saying in his plurality opinion
For schools that never segregated on the basis of race, such as Seattle,
or that have removed the vestiges of past segregation, such as
Jefferson County, the way "to achieve a system of determining
admission to the public schools on a nonracial basis," 75 S. Ct. 753, is
to stop assigning students on a racial basis. The way to stop
discrimination on the basis of race is to stop discriminating on the
basis of race.
C.J. Roberts words showthat strict scrutiny for racial classifications can be, in
Professor Gerald Gunther's famous words, "'strict' in theory and fatal in fact." Justice
Ginsburg, like Justice Breyer, has ben concerned with the purpose of the race or
gender conscious programs. They have distinguished betwen benign and
invidious discrimination. Justice Stevens has supported a flexible approach in
such cases, but observed in one dissent I think it is unfortunate that the majority
insists on applying the label "strict scrutiny" to benign race-based programs. That
label has usually been understood to spell the death of any governmental action to
which a court may apply it
As Oliver Wendell Holmes famously said the life of the law is not logic but
experience. Circuit Judge Alex Kozinski makes a similar argument against rigid
rules of law, urging in his concurring opinion in the Seattle case that the Supreme
Court reconsider its adherence to strict scrutiny. He suggests that robust rational
basis scrutiny would be a better approach. No one took him up on that suggestion,
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but you have that opportunity now. Today we find great disparities among public
schools both racial and economic, and sometimes both. Assuming that good
education for all is an important social objective:
Is there a way for courts to apply the principle of equal protection in a coherent way
that takes into account the bona fides of benign efforts like those of the Seattle
school system? Can we reliably distinguish between benign and invidious
distinctions? What principles would guide such determinatons?
Tiered review suggestions have been made like the robust rational basis review
Judge Kozinski put forward. Would reasonable accommodation serve to review
benign state efforts like the Seattle school boards, or efforts to preserve the
benefits of historically black colleges whose value Justice Thomas embraced in the
Seattle case? `Intermediate scrutiny required an exceedingly persuasive
justification as Justice Ginsburg applied it in rejecting the all-male admission policy
of Virginia Military Institute (VMI) in U.S. v. Virginia (1996)?
How would such standards of review affect (if at all) the outcomes in Milliken v.
Bradley? Missouri v. Jenkins? Parents Involved v. Seattle?
For LLM students - you may want to draw on efforts made in your countries to
equalize or impove conditions of persons from different tribes, clans, ethnic groups,
or backward regions.

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Q. 2 - Scope of Liability - Lessons of the Deepwater Horizon Oil Spill
Prof. John Goldberg wrote that the Oil Pollution Act 33 USC 2702 authorizes
recovery of damages by any claimant for economic loss that "result[s] from" "a
discharge of oil" and that is "due to the injury, destruction, or loss of . . . property or
natural resources." This supports in Goldbergs view a limitation of claims to those
who suffered a loss due to their use of the sea. This obviously extends the scope of
liability for economic loss beyond property damage and the narrow `fishermens
exception that has been recognized in maritime law. The use standard as he
suggests it would permit some recoveries for damage proximately caused by a spill
that extends beyond the scope suggested by Judge Wisdom dissenting in Guste v.
M/V Testbank, 752 F.2d 1019 (5
th
Cir. 1985), since shoreline restaurants and hotels
could be said to use the sea and to have suffered from the polluting oil spill. Yet the
Deepwater Horizon settlement agreement extended to claimants far from polluted
shores, well beyond both the Wisdom and the Goldberg suggestions. And it gained
the approval of District Judge Carl Barbier as a class action, and affirmance by a
divided Court of Appeals in January 2014. In re Deepwater Horizon, 739 F. 3d 790.
In March 2014 a divided Fifth Circuit panel the BEL (business economic loss) panel
allowed the settlement to proceed over BPs objection in In re Deepwater Horizon,
744 F.3d 370. The panel explained that the BP/Deepwater Horizon spill
caused damages in all of the six [33 USC 2702] O[il] P[ollution] A[ct]
categories. Following the unprecedented spill that affected thousands of
businesses across the Gulf Coast and surrounding regions, it seemed
apparent that BPs liability for business economic loss (viz., loss of
profits or impairment of earning capacity) could be enormous.
However, the full scope of 2702(b)(2)(E) liability, which is defined as
affording recompense for business economic loss due to property and
environmental damage that result[s] from a covered oil spill, had not
yet been, and still has not been, judicially construed. Furthermore, the
scope of such liability was, and still is, subject to intense scholarly
debate.
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A BP expert, in testimony supporting the class settlement explained:
The DWH Oil Spill had some direct implications for tourism and
seafood industries with consequential effects on some businesses in
related industries. The tourism and seafood industries are concentrated
in the immediate coastal area. As distance from the coastal area
increases, the composition of economic activity shifts, with tourism and
seafood becoming less important drivers of economic activity.
The Economic Damage Claim Frameworks explicitly incorporate these
economic realities in the methodologies for compensating Class
Members.
. . .
Businesses and individuals may suffer losses for a wide variety of
reasons. Thus, it is necessary and economically appropriate to evaluate
the likelihood that a Claimants losses were due to the DWH Spill or to
other unrelated factors. The standardized approaches established in the
Settlement Agreement for determining the likelihood that a Claimants
losses were caused by the DWH Spill, including granting a presumption that certain Claimants los
defined, reasonable and based on sound economic principles.
The settlement provided for presumption of causation in certain geographic areas and
the categories of claimants extended more widely than either Wisdom or Goldbergs
use rule would allow. See, for example, Exhibit 4C to the settlement which
established a $57 million tourism promotion fund and allows recovery by a wide
range of tourism-dependent businesses from hotels to gas stations (Exhibit. 2,
Tourism Definitions, Settlement at page 172), and real estate sale economic losses as
far away as Florida where the oil did not in fact reach the shores.
BP soon came to regret the settlement agreement, claiming that the presumption
language was so broad that some who had not actually suffered a loss were going to
get paid. BP attacked the implementation of the order in motions to the trial court.
In the appeals court it assailed the class action settlement approval order it had
sought. BP was particularly distressed by a policy statement by Deepwater Horizon
Settlement Administrator Patrick Juneau, interpreting the business economic loss
causation requirements of Exhibit 4B (Settlement areement at p. 201, and on the
syllabus page.) Embraced by District Judge Barbier, it states:
The Claims Administrator will thus compensate eligible Business
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Economic Loss and Individual Economic Loss claimants for all losses
payable under the terms of the Economic Loss frameworks in the
Settlement Agreement, without regard to whether such losses resulted
or may have resulted from a cause other than the Deepwater Horizon
oil spill provided such claimants have satisfied the specific causation
requirements set out in the Settlement Agreement.
In re Deepwater Horizon, supra, 744 F.3d 370, 381 (5th Cir. 2014)
The BEL Panel majority (Southwick) permitted the settlements to proceed, saying
BP identifies its desired relief but does not identify a part of the Settlement Agreement
that in any way suggests that each submitted claim would be examined as to whether
it satisfies a traceability requirement.
Judge Dennis concurred but explained that ...BP's belated attempt to raise the issue
of causation of damages under the OPA clearly did not survive BP's entering
voluntarily into the settlement agreement and consent decree and failing to raise the
causation issue in the initial proceedings in the district court and appeal. In re
Deepwater Horizon, 744 F.3d 370, 379 (5th Cir. 2014)
But Judge Clement had a more basic objection. She would vacate the class
certification because she saw a fatal flaw in the failure to require causation as an
element of every claim recognized:
The judicial power of federal courts extends only to cases and
controversies. There are but three irreducible constitutional
requirements: an injury in fact, a causal connection between the injury
and the conduct complained of, and that the injury is likely to be
redressed by a favorable decision.
The BP Gulf oil spill was unprecedented in its scale. Previous oil spills like the 1974
Santa Barbara oil wells did not approach its size. And the Exxon Valdez super tanker
spill was not only much smaller but was in a remote location - not the heavily
populated Gulf Coast. BP wanted to achieve a global solution. Under OPA liability
clearly was strict but the scope of liability was not clear. Judge Barbier, perhaps to
encourage settlement, did not try to define its scope. To this day no one has. BPs
global reach and enormous assets enabled it to undertake such a broad remedial
program. But the Oil Pollution Act- still unconstrued - remains on the books. So
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does the $75 million dollar damages cap (absent gross negligence or violation of
federal safety regulations) which BP waived.
Looking forward, look back at the BP experience. Should the class action approval
order be set aside on U.S. Constitution Article III case and controversy standing
grounds, as judges Garza argued in dissent? What order would Garzas opinion
require and what would be its impact?
Probably most importantly, in contemplation of future oil spills (which could occur
in coastal waters in the arctic, or in the south or either coast), what kind of example
has the BP experience set? If you were a federal judge how would you construe the
scope of Liability under the Oil Pollution Act? If you were a member of the U.S.
Senate would you propose any amendment to the statute? What? Why or why not?
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