Originially from: World Arbitration and Mediation Review (WAMR)

THE SEPTEMBER 11 VICTIM COMPENSATION FUND:
AROAD FROM HELL PAVEDWITH GOOD INTENTIONS
by
Robert M. Ackerman
Editor, Domestic Mediation
Professor of Law, Penn State’s Dickinson School of Law
On September 22, 2001, less than two weeks after the terrorist attacks on the World
Trade Center, the Pentagon, and United Airlines Flight 93 (which crashed in Shanksville,
Pennsylvania), Congress established the September 11 Victim Compensation Fund. The
measure establishing the Fund was enacted with no hearings and little debate. The Fund
combined an automatic compensation scheme with a simple claims process. It had two features,
one substantive, one procedural, that distinguished it from previous compensation schemes: (1)
the Fund provided a no-fault remedy under which the families of September 11 victims could
obtain full economic and noneconomic compensation without any statutory limit; (2) the
legislation vested full authority to determine noneconomic compensation from the Fund in a
Special Master, whose decisions were unappealable. These two features have generated
considerable controversy.
THE LEGISLATION
Despite the large outlay of federal funds the Fund would entail, and despite the massive
outpouring of sympathy that the Fund represented, its establishment was really something of an
afterthought. The legislation creating the Fund was attached to the Air Transportation Safety and
System Stabilization Act,1 the legislation designed to bail out the airline industry, about which
there was grave concern in the aftermath of the events of September 11. Legislation originally
proposed by the Bush Administration would have allowed September 11 victims’ families to sue
the airlines, but with damages capped at the limits of the airlines’ insurance (a total of less than
$7 billion).2 The Association of Trial Lawyers of America (ATLA) approached members of
Congress, arguing that the government could not limit the rights of victims without providing an
alternative remedy. Congressional Democrats agreed and pushed for inclusion of the Victim
Compensation Fund. The legislation establishing the Fund was drafted in three days.
“According to key participants in the process, almost no time was spent discussing the moral or
philosophical whys of the plan.”3
At the time of passage, however, few were about to question the philosophy or mechanics
of the Fund. The Fund captured the massive national outpouring of grief and sympathy in the
wake of the unprecedented September 11 attacks. The terrorist missions were attacks on the
nation, and it was regarded as altogether fitting that the nation as a whole should provide relief to
its most serious victims. The nuances of compensation could be ironed out through the
regulations to be promulgated by the Attorney General, on the advice of the Special Master. In
the meantime, the Victim Compensation Fund stood as an example of the largess of the