Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law
One of my goals as associate dean for public interest and public service has been to increase the pro bono opportunities for students and to make it easier for them to find and participate in projects to their liking. We are making progress, as the student-initiated example described below illustrates.
The enormous BP oil spill was all over the news for months, and in early summer several students emailed me to see if there was something that they could do to help. In recent years, GW students have gone to New Orleans on winter break to volunteer their services to work on the lingering after-effects of Katrina, but that would have been almost six months away, and these students wanted to do something now.
Their request sparked an idea: I had known Ken Feinberg, the BP special master in charge of the $20 billion fund, for many years and was planning to meet with him to discuss the fund. I decided to include in our discussion what our students might do. The fund was just getting started, and Ken wanted to know what the law was in the affected states, and under the federal Oil Pollution Act of 1990, as to BP’s legal liability, not just for actual damage to property and direct interference with fishing, but losses in businesses from motels on beaches that no one would go to because of the oil spill, as well as other businesses that depended on tourism. In legalese, there was no question that the spill was a “but for” cause of these business losses, but are there limits―sometimes denominated “proximate cause”―when the courts say that, in effect, the claimant is “too far” from the actual spill to be entitled to recover?
I met with the students and Associate Dean Lee Paddock, who is in charge of our environmental program, and they eagerly undertook this assignment. We knew that the student research would not be the only legal analysis that Ken and BP would receive, but our students were looking at the issue from the claimants’ perspective and we thought that would be an important viewpoint. As they were working through their drafts and meeting with me to discuss them, the fund issued a protocol regarding the emergency payments that it was then making that did not answer the original coverage question, but raised two others that seemed important. The first of these was the possibility that the fund would offset, from any payments that it might make, other money that the claimants had received relating to their losses, such as property insurance and, most significantly, wages paid to shrimpers and other fishermen to help BP clean up the oil. The other was whether some or all of the payments that the claimants received would be treated as taxable income, and whether the fund was telling the claimants the most accurate and useful information about the issue of taxes. The first group was continuing to refine their memo, and so I located two other groups of students to work on the other two aspects. All of the students, whose names and project are listed below, worked on a pro bono, no-credit basis.
I had been in regular contact with Ken, and when I reported to him that the students had produced quite useful analyses, he offered to come to the Law School and listen to their conclusions, which he did on November 15 (see photo). It was a very exciting time for the students as they offered their views, and Ken questioned them extensively. The coverage issue continued to bedevil him as well as the students, but he was sufficiently encouraged by their work that he offered to send them a memo prepared by a torts professor for their comments. On the offset issue, he seemed very interested in the students’ conclusions, particularly on the possibility that the money BP paid out for cleanup might not have to be offset from the payments that the fund would make for losses of earnings. And on the tax front, the students pointed out that IRS had issued a set of “questions & answers” that addressed many of the issues that should have been referenced on the fund’s website (but were not) and urged BP to be as helpful as possible when it informed claimants of the possible tax implications, instead of suggesting that they see a tax adviser. He also indicated that he expected to meet with the IRS commissioner in the near future and said he would invite the students to come with him.
The project is not over. In addition to the follow-ups on these three topics, there are likely to be other ways in which our students can have input into the operation of the fund as it proceeds. But beyond the value that the students brought to the process, the special opportunity that GW made available to them to have a substantive discussion with the person who is running one of the largest and most important claims funds ever was something that each one of them will treasure as they reflect on their time at the Law School. Every pro bono project may not equal the significance of BP, but each can be important to the beneficiaries and the participating students in its own way, as next month’s blog will illustrate with another student inspired project―assisting the Mid-Atlantic Innocence Project in reviewing claims of actual innocence by prisoners with wrongful conviction claims. ~ A. Morrison
Coverage Group
Michael Onufer, Chris York, Daniel Singer, & Margaret Pollard
Offset Group
Madeline Stano, Johanna Hariharan & Chiara Pappalardo
Tax Group
Tiffany Lee, Derek Wagner, & Steven Dean
GW pro bono program takes on BP oil spill « 20th & H: GW Law …
