|
|
|
Facing the Limits of Law, and of Lawsuits Philip K. Howard
New York Times, September 21, 2002 When establishing the Victim Compensation Fund last year, Congress foresaw a
potential legal nightmare. It thus imposed one condition before victims of the
Sept. 11 attacks could receive money from the fund: They had to waive their right
to sue anyone except the terrorists. But recent claims suggest that Congress did
not go far enough. It should reconsider whether lawsuits arising over the events
of Sept. 11, other than those against the terrorists, should be allowed at all.
Last week, lawyers for one of the firms hardest hit by the attacks, Cantor Fitzgerald,
issued a report claiming that the planned allocations of the fund are contrary
to law. The family of a young trader should be given $5 million for lost income,
they argue, not $3 million. The decision by the fund's special master, Kenneth
Feinberg, to give every family an additional $250,000 for pain and suffering,
they say, is "woefully inadequate."
So far, some 30 families have filed lawsuits against the airlines (claiming they
should have done more to stop the terrorists) and against the Port Authority of
New York and New Jersey (alleging it should have better evacuated the buildings).
Hundreds of the families are considering similar claims. The City of New York
has been hit with over 1,500 claims, including 1,200 by firefighters who argue
that their equipment was inadequate to protect them. These claims alone total
$9 billion.
There is no logical limit to these lawsuits, or indeed, to others that readily
could be brought. Nearby residents also suffered significant damages. Probably
millions of people in the region breathed air with toxins. Businesses in New York
suffered huge losses. Thousands across the country lost their jobs. Why shouldn't
they be able to sue?
The moral authority of the victims' families is overwhelming. No one even wants
to argue with them, much less deny them anything. But it is beyond the capacity
of litigation to produce a just or fair result here. Dollars can support a family
but can't ever make up for the loss. Some victims say they seek not money but
the truth. One widow who lost her husband on a hijacked United Airlines flight
has said that, by filing a lawsuit, she hoped to reduce the chances of another
attack. She knew she couldn't bring her husband back, she said, but the lawsuit
gave her "a new purpose and a goal in mind, something to hold onto and to fight
for."
But what happened here is not a mystery: terrorists exploited the conventions
of an open and free society to commit an act of mass murder. Allowing this litigation
comes at a high cost to society. The airlines employ tens of thousands of workers
and are integral to the national and world economy. Is it in our common interest
to drive them out of business? Billions sought from the City of New York would
come out of schools, health care and other common services. Is that fair?
Perhaps the greatest cost of allowing these claims, as we teeter on the edge
of decades of litigation, is to the fabric of our culture. The recriminations
are potentially endless. Open the door to litigation over fairness after a mass
tragedy, and no one will ever be satisfied. Bitterness has already begun to fester.
Why should the family of a bond trader receive $3 million, asks the family of
a kitchen worker, when they receive only a fraction of that? The harder we strive
to satisfy each person's claim to fairness, the greater will be the perceptions
of unfairness. What about deserving victims elsewhere, like the father who drowned
last year while saving three children from the flooded Mississippi? Is his family
less deserving than that of someone who happened to work at the World Trade Center?
There is no right answer, no point of true justice, no correct box to fill in.
On behalf of society, someone must simply make a choice. This is the proper job
of the special master. For casualties of war, Congress has prescribed a set schedule
of benefits. Among other modest benefits like a gravestone and funeral costs,
the family of a soldier lost in war gets a ''death gratuity'' of $6,000, the proceeds
of a life insurance policy of as little as $200,000 and a pension for widows of
at least $10,000 per year. No lawsuits are permitted, even if the decision of
the commanding officers was negligent or a piece of equipment failed. The families
get an American flag to honor the loved ones who died to protect our freedom.
An important lesson of Sept. 11 is that Americans must come together and face
the future with a new awareness of our risks and responsibilities. Descending
into a pit of litigation and recrimination cannot satisfy the families of victims;
their loss can never be satisfied. But this litigation will harm all of society.
One of the virtues of law is finality. To focus our energies on the future, Congress
must bar civil litigation seeking to place blame for the devastating events of
the past. | |
