Event Jurisdiction and Protective Coordination: Lessons from the September 11th Litigation
Brooklyn Law School
Southern California Law Review, Vol. 81, No. 2, 2007
U of Chicago, Public Law Working Paper No. 183
Shortly after the tragic events of September 11, 2001, Congress passed the Air Transportation Safety and System Stabilization Act (ATSSSA). The September 11th Victim Compensation Fund (VCF) was the centerpiece of the statute and provided a source of no-fault compensation to the tragedy's victims and victims' families. The ATSSSA also allowed victims to elect to pursue traditional litigation instead.
The ATSSSA contains three jurisdictional features that have shaped the path of the litigation. The Act created a federal cause of action "for damages arising out of" the terrorist related aircraft crashes; it gave the Southern District of New York original and exclusive jurisdiction over all actions "resulting from or relating to the terrorist-related aircraft crashes." Finally, it implemented a liability cap by limiting recovery in all actions to the defendants' available liability insurance. These jurisdictional aspects of the "traditional" litigation option under the ATSSSA contain unusual and practically unprecedented elements, yet they have received almost no scholarly attention. This Article attempts to fill that gap by telling the story of the course of the September 11th litigation, tracking the challenges and issues that have arisen as a result of the ATSSSA coordination mandate, and exploring the relationship between federalization of forum and aggregation of claims.
The jurisdictional puzzles seen in the September 11th litigation call for two new labels. "Event jurisdiction" refers to Congress's choice to give the federal courts subject matter jurisdiction over an "event" of perceived national importance, rather than locating subject matter jurisdiction over a certain class of cases or type of claim. The second phenomenon deserves the label "protective coordination" because, like protective jurisdiction, it evinces a congressional desire to protect certain real or perceived federal interests by manipulating the shape and direction of certain classes of lawsuits. The Article concludes by suggesting how Congress might better evaluate post-disaster litigation legislation in the future.
Keywords: civil procedure, federal courts, september 11, complex litigation, multidistrict litigation, jurisdiction, mass torts, toxic torts, aviation
JEL Classification: K4, K13
Date posted: October 4, 2007 ; Last revised: September 1, 2010