Restoration and Relief: Procedural Justice and the September 11th Victim Compensation Fund

Pearl, Tracy Hresko
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Less than ten days after the tragic events of September 11th, Congress passed the Air Transportation Safety and System Stabilization Act ("ATSSA"). The law served the dual purposes of saving the airline industry from financial ruin and providing financial compensation to those who had lost loved ones or suffered personal injuries during the attacks. The latter provision was unprecedented in American legal history: never before had Congress issued a "blank check" for governmental compensation to persons injured by tortious or criminal conduct. Indeed, though the government had provided assistance and even compensation to disaster victims in the past, such financial assistance was rare and had always been subject to strictly enforced caps. The victims of September 11th, therefore, were on the verge of receiving an unprecedented amount of financial relief from the federal government. Less than two weeks after the creation of the Victim Compensation Fund ("Fund"), however, September 11th victims began raising serious concerns about its various provisions. Due to lack of historical precedent and ability to know what the Fund would provide, complaints became about the ethics behind providing financial relief where such relief was not previously given. Most of the complaints received focused on fairness, effectiveness, and justice. There are strong legal and societal expectations that institutional procedures—legal, governmental, and administrative—will embody certain ethical values or principles. Studies have concluded that individuals are more satisfied by procedures that they perceive to be fair than by procedures that they perceive to be in their self-interest. The United States government codifies extensive procedural rules in the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of Evidence, and the United States Constitution. These rules are designed to ensure both that parties in conflict have opportunities to present their respective sides and that the outcomes of such conflicts are as fair as possible. If such fairness and efficiency were not important to American civil society, such procedural mechanisms would not be as extensively developed, commented on, reviewed, and revised. This article examines whether ethical principles or norms valued in American procedural systems can be identified and used to establish a framework against which new and unique procedural systems like the September 11th Victim Compensation Fund can be measured. Fairness and efficiency are identified as the two most important overarching procedural values, with several other sub-values embodied by each. The article then concludes that the Fund fulfilled efficiency values, but failed to fulfill fairness values due to its frequent arbitrariness and lack of accountability.

Air Transportation Safety and System Stabilization Act, Victim Compensation Fund, efficiency, ethics, procedure, Federal Rules of Civil Procedure
42 Gonz. L Rev. 95 (2006)