Abstract

http://ssrn.com/abstract=2466301
 


 



Designing Compensatory Funds: In Search of First Principles


Linda S. Mullenix


University of Texas School of Law

July 15, 2014

Stanford Journal of Complex Litigation, Vol. 3, 2015, Forthcoming
U of Texas Law, Public Law Research Paper No. 567

Abstract:     
The World Trade Center Victims’ Compensation Fund of 2001 ushered in a new age of fund approaches to resolving claims for mass disasters in the United States. Since then, numerous funds have been created following several mass events injuring large numbers of claimants. The Gulf Coast Claims Facility, created in the immediate aftermath of the BP Deepwater Horizon oil platform explosion, represented a further expansion of fund design and operation. The funds that have been implemented since 2001, including the World Trade Center Fund, have been the object of both praise as well as criticism. Notably, all these funds have been designed and implemented after the events giving rise to a universe of mass claimants. This article suggests that the policy recommendations for future fund design largely fail to address antecedent threshold questions about the nature of the events giving rise to possible recourse to a fund for compensation of claims. Although such compensation funds have been intended to provide an alternative to the tort compensation system and to operate largely outside the purview of the judicial system, instead most fund designs have relied on tort notions of corrective justice that mimic the tort system. However, many funds have in practice entailed mixed theories of corrective and distributive justice, confusing the purpose, utility, and goals of such funds. This article asks fundamental questions about the goals of such funds and whether and to what extent disaster compensation funds comport with theories of justice. It suggests that certain types of mass disaster events ought not to be resolved through fund auspices at all, while only a limited universe of communitarian harms should give rise to such a response. Finally, a communitarian fund designed ex-ante might more fairly be based on theories of distributive justice based on an egalitarian social welfare norm.

Number of Pages in PDF File: 32

Keywords: BP Gulf Oil Spill, World Trade Center Victims' Compensation Fund, Gulf Coast Claims Facility, Ken Feinberg, victim compensation fund, corrective justice, distributive justice, rertibutive justice, fund design, Judge Barbier

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Date posted: July 15, 2014  

Suggested Citation

Mullenix, Linda S., Designing Compensatory Funds: In Search of First Principles (July 15, 2014). Stanford Journal of Complex Litigation, Vol. 3, 2015, Forthcoming; U of Texas Law, Public Law Research Paper No. 567. Available at SSRN: http://ssrn.com/abstract=2466301

Contact Information

Linda S. Mullenix (Contact Author)
University of Texas School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)
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