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When he filed the first major lawsuit after the 1989 Exxon Valdez oil spill, famed California lawyer Melvin Belli proclaimed, with a measure of glee: “There will be native Alaskans, sea otters, beavers marching into court for years on end. It’ll never be over.” Hyperbole aside, Belli has been proven right. No sea otters have been spotted, but lawyers are certainly still marching into court. On Feb. 27, they’ll be at the U.S. Supreme Court possibly bringing to a close the legal wrangling over the damage caused by the spill. Arguments in Exxon Shipping Co. v. Baker, No. 07-219, will focus on a $2.5 billion verdict awarded against the oil company on behalf of a class of more than 32,000 commercial fishermen, Native Alaskans and other individuals and businesses harmed by the accident, which spilled 11 million gallons of crude oil into Prince William Sound. Exxon describes that judgment as “larger than the total of all punitive damages awards affirmed by all federal appellate courts in our history.” The plaintiffs call it “about three weeks of Exxon’s current net profits.” Squaring off in court will be former acting Solicitor General Walter Dellinger of O’Melveny & Myers and Stanford Law School Professor Jeffrey Fisher, a young star of the Supreme Court bar who made his name representing criminal defendants before the high court � and winning. Fisher was involved in the Exxon Valdez case at earlier stages at Seattle’s Davis Wright Tremaine, where he continues to co-chair the appellate group. But, he acknowledges, “[t]his is the first time I have really delved into maritime law.” Which means he is learning about precedents like the Amiable Nancy case of 1818, which some interpret as a bar on punitive damages when a ship captain is at fault. The dispute draws on an unusual mix of maritime law and more recent sources, such as the Clean Water Act and the Supreme Court’s decisions limiting punitive damages. But the court explicitly rejected Exxon’s request to review the $2.5 billion verdict as a violation of the U.S. Constitution’s due process clause. As a result, Exxon supporters are hoping to win over justices Antonin Scalia and Clarence Thomas, who have never found in their copies of the Constitution a bar against punitive damages. However, under maritime law � a form of judge-made common law � the two justices might join others who have voted to limit punitive damages in recent years. “The shackles are off” Scalia and Thomas, said Mayer Brown’s Andrew Frey, a top strategist in the long battle against punitive damages. Frey, who wrote a brief for the American Petroleum Institute, says, in part, that, even though the ruling may stress maritime law, it may also be “very important for the issue of punitive damages generally.” Both sides are also curious about Chief Justice John G. Roberts Jr. His views on punitive damages are still emerging, and in several cases as a private practitioner, he represented the state of Alaska before the Supreme Court. Alaska, which sides with the plaintiffs against Exxon before the high court, is seeking argument time, but the court has not yet ruled. Justice A. Samuel Alito Jr. might also have been in play, but he has recused, posing the possibility of a 4-4 tie, which would leave the pro-plaintiff ruling of the 9th U.S. Circuit Court of Appeals standing. According to his financial disclosure statements, Alito owns between $100,001 and $250,000 in Exxon Mobil stock.

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