Compensation for Victims of Terror: A Specialized Jurisprudence of Injury

Abstract

The legislation and Rules creating the September 11th Victim Compensation Fund (the "Fund") constitute a new entry in the "jurisprudence of injury." The Fund presents challenges that cut across traditional tort and compensation law, economic theory, philosophy, psychology and political science. This article combines analysis of the statute and the Rules with suggestions about their political significance, including brief summaries of heated public discussion about the Fund and a couple of personalized anecdotes, selected for their symbolic power.

Trying to "broker the politics of injury," Congress in establishing the Fund created a "unique form of public choice," with "something for everyone, in response to a most tragic set of circumstances." It provides victims of the attacks and their survivors an option to take advantage of a federal compensation fund or to sue air carriers. The Fund combines features of no-fault compensation systems like workers' compensation and of tort damages law, although departing from traditional American damages law by requiring the deduction of collateral sources. It also provides direct subsidies to the air carriers whose passengers and planes were lost in the attacks, as well as limiting their liability and offering them a potential immunity - a highly specialized immunity that depends on choices made by victims and survivors.

By contrast with the traditional statutory compensation systems, the Fund "carves out a narrow wedge of misfortune." Reaching beyond "the graphs of microeconomic theory," it appeals to the communitarian instinct, responding to "our continuing horror at the events" of September 11th, "our collective compassion for the victims, and our increased sense of vulnerability." At the same time, the Fund has provoked a nationwide community conversation about the limits of compassion, the sharing of burdens, and even the vices of greed and envy.