The September 11 Victim Compensation Fund: A Circumscribed Response or an Auspicious Model

Abstract

What are the implications, if any, of the September 11 Victim Compensation Fund of 2001 for the future? Although the tort option was not foreclosed for the victims of Sept. 11, Congress made a serious effort to provide incentives that would channel claims into the no-fault compensation scheme established by the Air Transportation Safety and System Stabilization Act. At this distance from the event, it seems appropriate to reflect on whether the Fund, established in the turmoil following the most riveting single-event, mass disaster in the nation's history, should be regarded as a singular response, or as a window for thinking about redress of future victims of terrorist activity - or even, perhaps, victims of criminal violence more generally.

I begin by offering a set of building blocks: three scenarios of terrorist activity considered from the vantage point of recovery in tort. Next, I shift ground to no-fault as an option for addressing these various types of claims, grounding my discussion in a brief recapitulation of the Sept. 11 scheme, as well as the model that emerges from the regulatory gloss provided by the Special Master designated to implement the scheme. In addition, I offer some context by discussing briefly a limited number of alternative no-fault strategies that have been employed in offering redress to the victims of terrorist acts, and more broadly, to victims of criminal violence. Finally, I address a more fundamental question: Can a satisfying principle be articulated for treating those suffering injuries from terrorist acts as a distinct category of beneficiaries? In the end, I conclude that fairness considerations suggest not so much the normative superiority of tort for addressing every manner of personal injury, as the problematic nature of affording special status to victims of terrorism as no-fault claimants, whether in mass calamities or in isolated incidents.