Reviewing the law reviews.

AuthorYoungdale, Elizabeth M.

Law Review Highlights:

The environmental and financial impacts of the 2010 BP Deep Water Horizon oil spill in the Gulf of Mexico are still being assessed and will continue to be evaluated for years to come. Several articles in this issue's bibliography address varying legal ramifications of the spill. The three articles below consider: (1) different methodologies for determining the value of the natural resources damaged or destroyed, (2) the pros and cons of eliminating limits on liability for companies under the Limitation of Shipowners Liability Act, and (3) distributing money and implementing restoration projects through the natural resources damage assessment process.

In the article Of Dead Pelicans, Turtles, and Marshes: Natural Resources Damages in the Wake of the BP Deepwater Horizon Spill, (1) Itzchak Komfeld asserts that current methods of valuing resources in the aftermath of ecological disasters are not sufficient. A system that takes a piecemeal approach to such assessment, for instance, considering how much a particular bird might be worth or attempting to determine the value of a single acre of marshland, fails to take into account the damage done to an ecosystem as a whole. The author suggests that a holistic view of the devastation inflicted on the environment would provide a more accurate estimation of actual damages.

In addition to raising concerns about how best to repair and recompense the damage done during the spill, the Deepwater Horizon disaster has raised the issue of whether or not the parties responsible should have their liability limited by federal statute. Limitation of Liability: Should It Be Jettisoned After the Deepwater Horizon? (2) considers whether or not the Limitation of Liability Act is "an unconscionable loophole" that protects big oil companies or simply one of a number of laws that reflect the belief that liability against certain parties should be limited in order to benefit society overall. The author discusses several examples of similar laws before addressing whether or not limitations against ship owners should be eliminated.

Finally, Deepwater Horizon Natural Resource Damages Assessment: Where Does the Money Go? (3) explores what it means, practically, to try to make the environment "whole again" after an accident like that in the Gulf of Mexico. The authors look at money collection and restoration plans for damaged ecosystems as required by the Oil Pollution Act Natural Resource Damage Assessment. The article also evaluates potential controversies involved in the collection and distribution of restoration money.

The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel.

U.S. and International

Damages

Elizabeth M. Bailey, et al., Making Sense of "Apportionment" in Patent Damages, 12 COLUM. SCI. & TECH. L. REV. 255 (2011).

Patrick J. Bonner, Limitation of Liability: Should It Be Jettisoned After the Deepwater Horizon?, 85 TUL. L. REV. 1183 (2011).

Daniel L. Burkard, A Tale of Spoiled Garlic and the Second Circuit's Flawed Approach to Damage Mitigation in APL Co. PTE Ltd. v. Blue Water Shipping U.S. Inc., 35 TUL. MAR. L.J. 585 (2011).

Theodore Eisenberg and Michael Heise, Judge-Jury Difference in Punitive Damages Awards: Who Listens to the Supreme Court?, 8 J. EMPIRICAL LEGAL STUD. 325 (2011).

Richard Frankel, The Disappearing Opt-Out Right in Punitive-Damages Class Actions, 2011 WIS. L. REV. 563.

Jim Gash, The End of an Era: The Supreme Court (Finally) Butts out of Punitive Damages for Good, 63 FLA. L. REV. 525 (2011).

Mark A. Geistfeld, The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability, 12l YALE L.J. 142 (2011).

Wyatt J. Glynn, Note, Musical Albums As "Compilations": A Limitation on Damages or a Trojan Horse Set to Ambush Termination Rights, 26 BERKELEY TECH. L.J. 375 (2011).

Michael C. Harper, Eliminating the Need for Caps on Title VII Damage Awards: The Shield of Kolstad v. American Dental Ass'n, 14 N.Y.U.J. LEGIS. & PUB. POL'Y 477 (2011).

Yen P. Hoang, Note, Assessing Environmental Damages After Oil Spill Disasters: How Courts Should Construe the Rebuttable Presumption Under the Oil Pollution Act, 96 CORNELL L. REV. 1469 (2011).

Robert Knueper and James Langenfeld, The Potential Role of Civil Antitrust Damage Analysis in Determining Financial Penalties in Criminal Antitrust Cases, 18 GEO. MASON L. REV. 953 (2011).

Itzchak E. Kornfeld, Of Dead Pelicans, Turtles, and Marshes: Natural Resources Damages in the Wake of the BP Deepwater Horizon Spill, 38 B.C. ENVTL. AFF. L. REV. 317 (2011).

Nicholas J. Lund and Niki L. Pace, Deepwater Horizon Natural Resource Damages Assessment: Where Does the Money Go?, 16 OCEAN & COASTAL L.J. 327 (2011).

Lillian Marquez, Making "Bad Men" Pay: Recovering Pain and Suffering Damages for Torts on Indian Reservations Under the Bad Men Clause, 20 FED. CIR. B.J. 609 (2011).

Daniel P. O'Gorman, Expectation Damages, the Objective Theory of Contracts, and the "Hairy Hand" Case: A Proposed Modification to the Effect of Two Classical Contract Law Axioms in Cases Involving Contractual Misunderstandings, 99 KY. L.J. 327 (2011).

Andrew F. Popper, Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill and Arbitrary Limits on Civil Liability, 60 DEPAUL L. REV. 975 (2011).

Kent Roach, A Promising Late Spring for Charter Damages: Ward v. Vancouver, 29 NAT'L J. CONST. L. 135 (2011).

David W. Robertson, The Oil Pollution Act's Provisions on Damages for Economic Loss, 30 MISS. C. L. REV. 157 (2011).

Michael L. Rustad and Thomas H. Koenig, Parens Patriae Litigation to Redress Societal Damages from the BP Oil Spill: The Latest Stage in the Evolution of Crimtorts, 29 UCLA...

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