DePaul Journal of Health Care Law, Vol. 10, No. 2, 2007
36 Pages Posted: 19 Feb 2009
Date Written: January 1, 2007
The tragic devastation that followed Hurricane Katrina was largely the result of governmental negligence. Although the ineptitude of federal, state and local authorities in the aftermath of the hurricane has been well-chronicled, less attention has been paid to the shoddy construction, inspection, and maintenance of the levee system; a system that failed under the stress of a low-level hurricane. Drawing on authoritative engineering reports that reviewed problems with the levees, this article concludes that the system's failure was principally the fault of the Army Corps of Engineers, abetted by state and local failures. Thus, the federal government bears responsibility to the citizens of New Orleans whose lives were lost or shattered after Katrina.
Notwithstanding this fault, those injured or killed by Katrina have received little from the government. Federal disaster relief, available in all cases following a declaration of disaster, has been the principal - and inadequate - remedy. In contrast, the families of those killed by the terrorist acts of September 11 received generous payouts, in many cases totaling millions of dollars, from general revenue. These payments were made in spite of the government's likely lack of substantial fault in the events leading up to September 11.
This article argues that the difference in treatment cannot be justified by recourse to any principle of justice. Government does have an obligation to come to the assistance of disaster victims, but this obligation is constrained by the requirement of distributive justice, which mandates that the welfare of all citizens be taken into account. Thus, even the heartbreaking events of September 11 should have triggered no more than typical FEMA relief efforts. Matters are more complicated, though, where government itself is to blame for a tragedy, as was to a great extent true in the case of Katrina. In that case, one can argue that the government should pay the victims for the same reasons that we require private defendants to pay for injuries they cause innocent victims (plaintiffs): the imperatives of corrective justice, which treat the parties as a closed set and require one to pay the other to redress an imbalance that culpable conduct creates.
But the government, of course, is not a private "party," and it is therefore impossible to "close off" its assets from those of everyone else. Thus, although it seems clear that Katrina victims have a better claim to government compensation than did the victims of September 11, it does not follow that the government should simply pay out in the same way that tort plaintiffs would be compensated. The article argues for a creative middle ground: Government should not restrict itself to disaster payments, but should stop short of full tort compensation. Flexibility and attention to changing developments, and a "long tail" approach to improving the lives of Katrina's victims, are the best solutions to a theoretically and practically difficult problem.
Keywords: hurricane katrina, september 11, terrorism, disasters, tort law, victim compensation
JEL Classification: K10, K13
Suggested Citation: Suggested Citation
Culhane, John G., What Does Justice Require for the Victims of Katrina and September 11? (January 1, 2007). DePaul Journal of Health Care Law, Vol. 10, No. 2, 2007. Available at SSRN: https://ssrn.com/abstract=1346028