The BP Macondo Well Blowout MDL: A Case Study in Characterization and Consequences in the Managerial Justice Era

Abstract

The article critiques BP Macondo oil spill MDL governance under admiralty and general maritime law rather than under three interlocking federal statutes: Clean Water Act, Outer Continental Shelf Lands Act and Oil Pollution Act of 1990. The article disputes admiralty/general maritime choice on grounds that general maritime law was displaced by three federal statutes, and that oil spill failed to meet admiralty tort jurisdictional requirement that event giving rise to tort be substantially related to a traditional maritime activity, as required under United States Supreme Court's decision in Jerome B. Grubart v. Great Lakes Dock and Dredge Company. The article attributes MDL's contrary view on these issues to Fifth Circuit's unduly expansive conception of admiralty jurisdiction's scope; trial court's single-minded pursuit of settlement in accordance with case management principles; and an unwillingness to deviate from liability outcomes essentially assured under admiralty law because stakes in this largest and most financially momentous of any legal event in nation's history rendered MDL too big to fail. The argument is presented as a case study of style of mass tort case management, It praises relatively rapid settlement of many of MDL's claims. But it concludes that Professor (and BP MDL Special Magistrate) Frances McGovern’s aspiration that the managerial justice horse not be allowed to trample valued aspects of our dispute resolution process was not achieved in BP MDL outcome.