Reviewing the law reviews: terrorism litigation and protection.

• Author: Youngdale, Elizabeth M.
• Position: Response to Caitlin M. Piccarello, Villanova Sports & Entertainment Law Journal, vol. 12, p. 365, Sept. 2005, Michelle E. Boardman, Georgetown Law Journal, vol. 93, p. 783, 2005 and Robert J. Rhee, Arizona State Law Journal, vol. 37, p. 435, 2005

Law Review Highlights: Terrorism Litigation and Protection

Four years after the terrorist attacks of September 11, 2001, the United States continues to wrestle with the economic repercussions of those events. The American legal system struggles to find a way to evaluate risks and anticipate financial needs if and when terrorism occurs in the future. How best can we compensate victims without bankrupting the insurance industry or miring the courts in tort litigation?

Increased security at events such as the Super Bowl, the Academy Awards, and even college events, is a direct response to the fear that many have that the next terrorist attack in the United States may strike such a venue. In her comment, Terrorism, Tourism, and Torts: Liability in the Event of a Terrorist Attack on a Sports or Entertainment Venue, Caitlin M. Piccarello looks at the potential legal ramifications for venue owners should an attack occur. (1) Entertainment and sports venues are considered prime "soft targets" because not only are they symbolic of American culture, but they are also representative of American capitalism. They are difficult to protect because of the large numbers of people entering and exiting major arenas and the open spaces often associated with such venues. Ms. Piccarello analyzes how the five elements of a negligence cause of action might be applied in a case involving a terrorist attack, using a hypothetical bombing during a football game at Giants Stadium in New Jersey to predict how such a case might be approached. She also acknowledges that any likelihood of a lawsuit in these situations will be tempered by the precedence set in the aftermath of September 11th. The federal government's willingness to step in and ease the financial burden placed on the private sector, specifically the airlines, provides a possible alternative to heavy reliance on tort litigation should attacks occur in the future.

In an attempt to provide coverage for terrorist attacks, Congress also enacted a program that halted state legislatures' attempts to allow insurance companies to exclude terrorism from future policies. In spite of this governmental action, Michelle E. Boardman argues that American terrorism is not covered by insurance policies today and cannot be covered tomorrow, in her article, Known Unknowns: The Illusion of Terrorism Insurance. (2) Large portions of losses from future attacks would not be covered under existing policy language--even without specific terrorism exclusions--because many current commercial policies already exclude potential forms of terrorist acts, such as nuclear bombs, radiation from dirty bombs, and chemical or biological attacks. Additionally, Ms. Boardman posits that absent meaningful actuarial data of the risk of an international terrorist attack, insurance in the future is not possible. She proposes that it would be better for the government to adopt a straightforward aid policy than to continue to pretend that insurance would cover a terrorist attack in the future.

Insurance coverage for events like future terrorist attacks may require an entire industry reconfiguration. Robert J. Rhee discusses the insurance dimension of terrorism risk as a long-term economic problem in his article, Terrorism Risks in a Post-9/11 Economy: The Convergence of Capital Markets, Insurance, and Government Action. (3) His article examines whether the private sector can provide a market solution to this insurance crisis and the appropriate governmental role. The author concludes that the private market is a more efficient way to spread risk, and that the government's role should be to facilitate the convergence of the insurance and capital markets.

The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel.

U.S. and International

Damages

Michael P. Allen, The Supreme Court, Punitive Damages and State Sovereignty, 13 GEO. MASON L. REV. 1 (2004).

Carl S. Beattie, Note, Apportioning the Risk of Delay in Construction Projects: A Proposed Alternative to the Inadequate "No Damages for Delay" Clause, 46 WM. & MARY L. REV. 1857 (2005).

Dawn R. Bonnett, Note, The Use of Colussus[R] to Measure the General Damages of a Personal Injury Claim Demonstrates Good Faith Claims Handling, 53 CLEV. ST. L. REV. 107 (2005).

Nathaniel R. Boulton, The Farmer's Retort to Tort Reform: Why Legislation to Limit or Eliminate Punitive Damages Hurts the Agricultural Sector, 9 DRAKE J. AGRIC. L. 415 (2004).

Harold Caplan, Post 9/11--Air Carrier Liability Towards Third Parties on Land or Water as a Consequence of War or Terrorism, 30 AIR & SPACE L. 5 (2005).

Linda Clarke, Remedial Responses to Breach of Confidence: The Question of Damages, 24 CIV. JUST. Q. 316 (2005).

Richard Clayton, Damage Limitation: The Courts and Human Rights Act Damages, 2005 PUB. L. 429.

Thomas A. Eaton, et al., The Effects of Seeking Punitive Damages on the Processing of Tort Claims, 34 J. LEGAL STUD. 343 (2005).

Stewart A.G. Elgie & Anastasia M. Lintner, The Supreme Court's Canfor Decision: Losing the Battle but Winning the War for Environmental Damages, 38 U.B.C. L. REV. 223 (2005).

Kris Gledhill, Note, Damages under the Human Rights Act, 24 CIV. JUST. Q. 298 (2005).

Rebecca Hollander-Blumoff & Matthew T. Bodie, The Effects of Jury Ignorance About Damage Caps: The Case of the 1991 Civil Rights Act, 90 IOWA L. REV. 1361 (2005).

Foad Hoseinian, Passing-on Damages and Community Antitrust Policy--An Economic Background, 28 World Competition: L. & ECON. REV. 3 (2005).

Drame Ibrahima, Recovering Damage to the Environment per se Following an Oil Spill: The Shadows and Lights of the Civil Liability and Fund Conventions of 1992, 14 REV. EUR. COMMUNITY & INT'L ENVTL. L.: RECIEL 63 (2005).

Mara Kent, The Common-Law History of Non-Economic Damages in Breach of Contract Actions Versus Willful Breach of Contract Actions, 11 TEX. WESLEYAN L. REV. 481 (2005).

Lisa Litwiller, From Exxon to Engle: The Futility of Assessing Punitive Damages As Against Corporate Entities, 57 RUTGERS L. REV. 301 (2004).

Alexia Norris, Note, When "Contracting Around" the Law Will Not Work: The Potential Inability to Expressly Prohibit Punitive Damages in Arbitration, 2005 J. DISP. RESOL. 147.

Martin Z. P. Olszynski, The Assessment of Environmental Damages Following the Supreme Court's Decision in Canfor, 15 J. ENVTL. L. & PRAC. 257 (2005).

Ralph Peeples & Catherine T. Harris, Learning to Crawl: The Use of Voluntary Caps on Damages in Medical Malpractice Litigation, 54 CATHOLIC U. L. REV. 703 (2005).

Michael L. Rustad, Happy No More: Federalism Derailed by the Court That Would Be King of Punitive Damages, 64 MARYLAND L. REV. 461 (2005).

Catherine M. Sharkey, Unintended Consequences of Medical Malpractice Damages Caps, 80 N.Y.U...