The Three Faces of SupCo Coverage

Slate, the NYT, and the WSJ on Exxon Valdez

It was 1989 in the Supreme Court last week. Lawyers argued about whether ExxonMobil should pay punitive damages for the Exxon Valdez oil spill off the coast of Alaska nearly two decades ago.

You might have thought that case was over by now, but no—marathon death-row appeals have nothing on Exxon Shipping Co. v. Baker. In the two decades since the spill, the newspaper as an institution has run aground but media generally have flowered, unleashed by the freedom of the Internet. Three stories in three publications illustrate three schools of journalistic thought over the last couple of decades. Which one turned out to work best?

Supreme Court reporter Linda Greenhouse, a forty-year veteran of The New York Times, shows how the old newspaper formula still does an admirable job of conveying what readers need to know—within the confines of the newspaper and without. It’s the five Ws and a cloud of dust—straightforward reporting on what happened and why, with a Timesian analytical flourish.

Greenhouse, of course, is one of the country’s premier beat reporters (and sadly one whom the Times has just bought out in its bid to slash 100 newsroom jobs), and she opens with Exxon’s argument:

The Exxon Valdez oil spill, which caused a 3,000-square-mile oil slick and still affects Alaska’s fisheries after nearly 19 years, was a “tragedy,” Exxon’s lawyer told the Supreme Court on Wednesday.

But the company has been punished enough by $3.4 billion in criminal fines, cleanup costs and compensation payments, the lawyer added, arguing that the $2.5 billion in punitive damages approved by a federal appeals court served no additional ‘public purpose.’

Then she expands into a compact summary of the color that will keep us reading past the first few paragraphs.

Exxon’s appeal of the biggest punitive damage award ever upheld in federal court led to a lively Supreme Court argument in which everything was open to dispute, from the significance of a 200-year-old case about robbery on the high seas to the world of modern maritime commerce in which a 1,000-foot tanker like the Exxon Valdez is considered a separate ‘business unit’ in the organization chart of its corporate owner.

The idea that “everything was open to dispute” sets a kind of anarchic tone, and we get a sense of wide-ranging argument and counterargument, among justices and between sides.

The Wall Street Journal presents a Newspaper 2.0-style piece, emphasizing less what happened than what’s going to happen. It’s the second-day story that runs on the first day—and it doesn’t really work here. The WSJ steps away from the chronological style used by the Times (and Slate, as we’ll see below), and emphasizes instead the likely outcome of the case based on its reading of the justices’ questions.

By presenting less reporting on what was said in the here and now and emphasizing what it may mean in the nebulous future, the WSJ dilutes the power, and frankly, the believability of its piece. You can practically hear the paper straining to spin the news forward—there are three “seemed” hedges in the first three sentences alone.

The Supreme Court seemed ready to steer a middle course between fishermen whose waters were contaminated in the 1989 Exxon Valdez oil spill, and Exxon Mobil Corp., which argues the Alaskans have no right to the $2.5 billion punitive award they won.

The justices seemed unpersuaded by Exxon’s argument that the special nature of admiralty law precluded punitive damages against Exxon. But several justices seemed concerned that under the plaintiffs’ theory, punitive damages for maritime accidents might face no upward limit.

The piece is a little too neat. Instead of a back-and-forth, we mostly get Justice David Souter’s opinions, which the WSJ uses to present the more or less consensus leanings. Souter seems to support damages, but limited ones.

This very well may be an indicator of the case’s outcome, which will be decided in a few months. But the Journal’s own Law Blog, in summarizing the print piece, includes an expert suggesting the verdict could go any way:

We caught up with University of Texas law professor Michael Sturley, who was there (and also helped Exxon-Mobil prepare its brief)…. Sturley wouldn’t hazard a guess as to where the chips will fall. They could uphold the damages or say no punitives at all are permissible. In between, they could remand it with more specific guidelines. None of these outcomes would really surprise me.

While we’re not saying the Journal is wrong, we don’t think it captured the oral arguments as well as it should have. We fault the Journal’s piece (and Slate’s below) for not reporting that Justice Samuel Alito is sitting out this case because he owns Exxon stock (an aside: Why would it be acceptable for a Supreme Court justice to own shares in the biggest corporation in the world? Doesn’t it seem likely that he’ll have lots of conflicts there? Buy some bonds or put your money in a blind trust, dude. Here’s the WSJ’s Law Blog again).

Dahlia Lithwick’s piece in Slate illustrates the promise of Internet-era journalism. Unrestrained by column-inch limits, she gives us needed details from the courthouse steps on how many of the plaintiff class has died (20 percent), and includes her own moral perspective. It’s a well-written piece of journalism that puts us in the courtroom for the blow-by-blow of the oral arguments, but doesn’t get lost in the punch count.

Lithwick reports the lively back-and-forth between justices and lawyers, in which two primary issues come up: Should Exxon have to pay punitive damages, and if so should they be capped somehow?

Citing an admiralty case from 1818 called, delightfully, the Amiable Nancy, (Exxon’s attorney) claims that to uphold the judgment against Exxon would be to disrupt maritime law that’s been ‘settled for almost 200 years.’

Justice Ruth Bader Ginsburg quickly challenges him on the claim that a 200-year-old case, followed by loads of constitutional radio silence, represents “long-settled law.” To which Dellinger replies that the law was “so settled” the issue “didn’t come up.”

We like Slate’s piece because it gives us a nice sense of intellectual exchange, but also because it departs from straight legal reporting to address what ought to be obvious but may not be after nineteen years: this verdict is not a legal abstraction.

Even if Exxon pays out the full amount, the $75,000 or so each class member will collect won’t be enough to rebuild the dying town and businesses the Valdez spill has left behind. Which further contributes to the sense that Exxon should pay simply because it can afford to. Of course, that’s not the issue here, but then, when you’re surrounded by grizzled men in faded rugby shirts in the gallery of the Supreme Court, the niceties of vicarious liability fall away, which is precisely what [the plaintiffs’ attorney Jeffrey] Fisher set out to prove. In an unusually visceral way today, you can’t quite shake the contrast between the high-flying corporate world of big oil and the rusting old fishing boats in Cordova, Alaska. Oil and water still don’t mix. Even 19 years later.

Relatively chronological writing that quotes a variety of justices proved the best way to convey information in these cases. This particular legal ceremony gives reporters an excellent opportunity to make the Supreme Court human—to convey to readers how justices speak and how their arguments play off both one another and the lawyers who stand before them. The guesswork of how the court will decide has a place in this kind of reporting, but we prefer description to prediction, and we like lots of context so that we can connect legal language to, well, reality.

We grant that all of this is hard to do in a daily news story—but it’s not impossible. And as the newspaper is unmoored from its physical bonds, following Slate’s example here will work better than the Journal’s, while the Times’ approach is ageless.

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Elinore Longobardi is a Fellow and staff writer of The Audit, the business-press section of Columbia Journalism Review.