Compensation for Terrorism: What We are Learning

16 Pages Posted: 3 May 2004

Abstract

This article participates in the quest for "the informing principle beyond raw politics" concerning compensation for victims of terror, concluding with an analysis employing "a kind of rationalized emotion." Noting that the quest presently involves a "steep learning curve," the piece builds on a previous article (published at 30 Hofstra 1245 and 36 Ind. L. Rev. 237). Briefly reviewing the history of the September 11th Victim Compensation Fund, the article opines that the Justice Department's rules for the Fund, and the "intense" discussions between the Fund's special master and victims' groups, provide examples of what Tocqueville called Americans "becom[ing] educated about the formalities of government." This process leads to the question of what it means to be a member of a national community, physically attacked and rendered vulnerable by a monstrous terrorist act.

The article says that Congress, strongly influenced like all its constituents by dramatic media coverage, printed "a ticket that covers one set of events." Placing the fatalities of September 11th in statistical perspective with the annual toll of accident deaths in the country and of combat deaths in foreign wars and the Civil War, the article surveys alternative models for dealing with injuries. Looking to the possibility of future attacks, it suggests that any such episodes are likely to exert a "powerful downward pressure on valuation" of injuries, particularly the valuation of intangibles. Noting revelations about governmental failures in the use of available information - and citing thriller fiction published in 2000 as illustrative of knowledge about the risks of terrorist attacks on the World Trade Center in particular - the article declares that in retrospect this information makes the Fund appear "to represent a kind of expiation by the Government itself." The article indicates that compensation for terrorism will become more concretized as a function of Government. The conclusion views the statute that set up the Fund as a funneling device for rage - "do[ing] something for somebody" when it was not then possible to do something "against somebody." Although the penultimate sentence of the article predicts that "[if] there are next times, we will be cooler in our response in the doing-for category," the last sentence asserts that "on this first occasion, Congress spoke for the community with a meaning that outstrips the wisdom of conventional analysis."

Keywords: Compensation, victims, terrorism

JEL Classification: K13, K10, D62, D63, D64, D70, K40, K41

Suggested Citation

Shapo, Marshall S., Compensation for Terrorism: What We are Learning. Available at SSRN: https://ssrn.com/abstract=538983

Marshall S. Shapo (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8436 (Phone)
312-503-7396 (Fax)

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