Tuesday Night Links
* “Don’t talk to the cops” just got a little more complicated. One of the knocks against Sonia Sotomayor was that she’s be too prosecutor-friendly, so it’s good to see her on the right side on this:
Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.
* Justice department to launch criminal investigation of BP. More here. Could the oil spill end BP? If the government chose to prosecute BP under the Clean Water Act, it could fine the company $4,300 per barrel leaked into the Gulf — fines independent of the liability cap. If the government won those damages, BP would currently be on the hook for $116 billion — enough to bankrupt the company immediately. Related: Robert Reich says Obama should put the company in receivership. And it looks as if BP has given up trying to contain the spill before the relief wells are completed this August.
* Peter Jackson being coy about whether he’ll now direct The Hobbit.
* Marvel as Stephen Stromberg makes an important point in a very stupid way.
* Heat wave in Northern India kills hundreds as temperatures approach 120 degrees.
* Six astronauts begin simulating this week a 520-day mission to Mars.
* Behold, the Wikipedia game.
* And you had me at “Japanese construction firm Shimizu Corporation has developed a series of bold architectural plans for the world of tomorrow.” Via Tim.
Gerry Canavan 
The Clean Water Act case seems open and shut. You can seek penalties up to $1,100 even without any showing of negligence (you can get an enhancement if you show gross negligence or willful misconduct). But the “up to” language is key. The maximum penalty is not mandatory, and a penalty as high as $116 billion would raise a legitimate constitutional question under the Excessive Fines Clause, which bars penalties that are “grossly disproportional” to the severity of the defendant’s offense. That judicial assessment is 10 parts art and 0 parts science. There’s certainly an argument that an unprecedented fine of over $100 billion is NOT grossly disproportional, given the unprecedented nature and extent of the harm. It would be buttressed if there were a showing of a high degree of culpability.
Shankar D
June 3, 2010 at 3:10 am