25 Pages Posted: 25 Mar 2005
September 11th laid bare the foundations not only of the Twin Towers in downtown Manhattan but also of American ambivalence about a central democratic institution, the civil justice system. American democracy is built on the idea that ordinary individuals can participate in governance, taking action to ensure the laws are followed by activating and indeed to some extent directing the power of the state through the judicial branch. American businesses have relied on the availability of the courts to resolve their disputes about how their losses caused by the terrorist attacks should be distributed. But Congress sought to divert non-business entities out of the courts, rushing to provide an alternative source of compensation which it would make available to those who waived their right to litigate their disputes with those who may have contributed to their losses. In collapsing the compensation (actually insurance, for compensation implies a payment from one who caused an injury to a person harmed by that injury) function of the civil justice system with its democratic function - requiring access to one be purchased through disavowal of the other - Congress contributed to the erosion of democratic commitment to litigation as an important means by which the rule of law is honored. The VCF was, as the Special Master concluded, a generous expression of shared loss by the American public and served well, as the RAND study concluded, to fill the gaps in other sources of social insurance. But by tying access to that insurance to the waiver of civil litigation, the VCF went farther than it had to and farther than it should have. The problems with civil litigation - its extraordinary cost, complexity and slowness - are real, and require real solutions. But closing off the courts is not among the solutions a democratic society should entertain. Congress had the opportunity, and still does, to devise a democratic response to the problems of civil litigation. An alternative in cases of mass tragedy such as September 11th could well provide both for democratic commitments and a reasonable and contained process. Reasonably just substitutes for civil actions should, perhaps constitutionally must, provide a substitute not only for the money plaintiffs might recover through this means, but also for the opportunity civil litigation gives ordinary citizens to participate in the institutions that give meaning to the rule of law.
Suggested Citation: Suggested Citation
Hadfield, Gillian K., The September 11th Victim Compensation Fund: 'An Unprecedented Experiment in American Democracy'. THE FUTURE OF TERRORISM RISK INSURANCE, Defense Research Institute (DRI), 2005. Available at SSRN: https://ssrn.com/abstract=690401