The Myth of Moral Justice In-Print Symposium: A Brief Response

AuthorKenneth R. Feinberg
Pages79-84

Page 79

If Thane Rosenbaum's The Myth of Moral Justice1 makes for interesting reading, so too do the stimulating responses from authors Michael Giudice,2 Daniel Kornstein,3 Stuart Scheingold,4 Daniel Abuhoff,5 and Adam Liptak.6 Read together, the book and essays raise important questions about the moral foundation of American law and our nation's legal profession. Whether Rosenbaum's book constitutes a credible broadside on the very nature of law in our modern complex society or, instead, merely serves the function of gadfly, an irritant provoking us to reconsider some of our most basic preconceptions about the law and our legal profession, is open to debate. What I found of particular parochial interest is how Rosenbaum's thesis, and the reaction of the other authors, comport with my thirty-three month tenure as Special Master of the Federal September 11th Victim Compensation Fund ("9/11 Fund" or "Fund"). There are important lessons to be learned relevant to this symposium.Page 80

The 9/11 Fund was created by Congress just eleven days after the terrorist attacks.7 The statute, drafted in haste without the benefit of Senate or House hearings, was long on rhetoric and short on specifics. Congress delegated to a Special Master, an individual appointed by the Attorney General, the responsibility of designing and administering the rules and regulations of the Fund.8 Awards issued by the Special Master were final and binding; no individual appeals to the courts were permitted. Eligibility for generous compensation was limited to those individuals who lost a loved one on September 11, or who were physically injured but survived the terrorist attacks. Other victims of terrorist attacks in Oklahoma City, the African Embassy bombings in Kenya, on the U.S.S. Cole, or even at the first World Trade Center attacks in 1993 were ineligible. September 11, and September 11 alone, constituted a precondition for eligibility.

The 9/11 Fund was unprecedented in its generosity. Over seven billion dollars in public tax-free compensation was paid to over 5,300 individuals. The average award for a death claim was around two million dollars; the average compensation paid to the physically injured was $400,000. Awards ranged from a low of $500 (paid to an individual who incurred a broken finger at the World Trade Center) to around $8,600,000 awarded a survivor with third-degree burns over eighty-five percent of her body. Although the Fund was voluntary, those who filed the claim agreed to surrender their right to litigate in court against the airlines, the World Trade Center, and other domestic institutions allegedly negligent in failing to prevent the attacks. Some ninety-seven percent of all eligible claimants filed with the Fund before the statutory deadline of December 22, 2003. By practically any account, this unique Fund, unprecedented in American history in the size and scope of awards, was a stunning success. Today, there are only around eighty-five people who have decided to litigate rather than seek compensation from the Fund.

This brief explanation of the genesis of the Fund, and the statistical evidence of success, set the stage for a test of what is argued by Rosenbaum as well as Giudice, Kornstein, Scheingold, and Abuhoff. The rules and regulations of the Fund offer an appropriate opportunity to consider some of Rosenbaum's concerns about the alleged dichotomyPage 81 between the law and morality. At the same time, the actual administration of the Fund and the role that the legal profession played in assuring its success help provide an illuminating response to some of the theoretical arguments proposed by the symposium authors. The 9/11 Fund constitutes one specific example that can be evaluated in testing the rhetoric of the contributors to this symposium.

In administering the Fund, I evolved from skeptic to believer when it came to the importance of "the therapeutic effect of storytelling,"9 permitting "individuals or...

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