Remedies for Victims of Terrorism

The September 11 attack on the World Trade Tower and the Pentagon left thousands of victims in its wake. Seemingly quite laudably, Congress almost immediately enacted a bill that set up a Victim's Compensation Fund ("VCF") that held out the potential for quickly and reasonably compensating those injured in the disaster as well as the families of those who were killed. This paper describes the VCF, and discusses some of the problems that the Special Master of the VCF confronted while preparing the rules for how the victims would be compensated. This discussion then leads into the much larger question of the extent to which Congress ought to be involved in the resolution of personal injury and other state based claims. Traditionally, of course, our legal system generally has left the resolution of personal injury claims to state law. Additionally, the vast majority, at least until the rise of mass tort litigation, of such cases were resolved in state courts. It would seem that United States Supreme Court's recent federalism cases would support federal abstinence in this area. To the contrary, Congress, generally led by Republicans, have enacted and proposed legislation that have the effect of stripping state courts of their traditional role in the resolution of tort and other state law based cases. Thus, the paper raises the question whether the VCF is the camel's nose under the tent. It is notable that at the same time that Congress created the VCF, it also provided a massive bailout for the airline industry. Is the legislative climate such that we can expect future enactment of legislation providing, for example, compensation for victims of exposure to asbestos, while limiting the liability of the corporations and entities involved in the ever-expanding asbestos litigation? What are the federalism implications of bills like the Class Action Fairness Act that would allow defendants to remove virtually any class action from state court to federal court? The paper concludes that the ought to be a reasonable balance. There always has been concurrent federal and state jurisdiction over a large number of cases. As a practical matter, when complex litigation of a national scope threatens the ability of the state and federal court's ability to provide reasonable compensation within a reasonable time frame, the federal courts should play an important role, and Congress ought to provide the courts with the tools necessary to resolve the litigation and achieve global peace if possible. Nonetheless, it is important to consider that federal resolution, whether in federal courts or some administrative scheme like the VCF, violates important principles of federalism, and therefore ought not become the general rule. For example, given the intractability of the asbestos litigation and the numerous bankruptcies it has spawned, it may well be appropriate for Congress to enact appropriate legislation. The VCF is a response to a disaster, though localized, that is national in nature. On the other hand, bills like the Class Action Fairness Act are suspect because they simply evidence distrust of state courts' ability to fairly resolve cases.