Friday, April 11, 2008
Robert Rabin (Stanford Law) and Stephen Sugarman (Boalt Hall) have just posted an intriguing article entitled "The Case for Specially Compensating the Victims of Terrorist Attacks: An Assessment" on SSRN. The paper was published in the Hofstra Law Review in 2007. The abstract explains:
In light of the daunting prospect of terrorists striking again on the home front, what special measures, if any, should be taken to assure compensation to those killed or injured by such violence? The starting point for any discussion of the compensation of these victims (and their survivors), we believe, is an appreciation of the baseline arrangements our nation has in place for those killed or seriously injured regardless of cause. One policy option would be to leave victims of terrorism to whatever they might obtain from these baseline tort and social welfare compensation systems in default of special treatment. On what basis, if any, should terrorist victims be singled out for different treatment? Is there something about being victims of terrorism that should entitle them and their survivors to be better treated than they would be by Social Security, victims of violent crimes schemes, and the like? Is there something about tort law's application, or non-application to the terrorist setting, that makes a special compensation scheme appropriate for victims of terrorism?
In addressing these questions, there are two basic alternatives to the default solution. One would involve the creation, ex ante, of an ongoing victim compensation fund in anticipation of the occurrence of future terrorist acts. The other would involve the ad hoc creation of a fund established after the occurrence of a terrorist event to provide retrospective compensation to victims. Israel and Northern Ireland are examples of countries with longstanding experience with terrorism, which have adopted legislative schemes of the first sort. In the U.S., the 9/11 Victim Compensation Fund is an example of the ad hoc retrospective approach.
We begin by commenting on the 9/11 Fund itself, setting it in the context of other American compensation schemes that arose out of concerns about the appropriateness of having injury victims seek compensation through tort law. Next, we consider, in turn, the ex ante and ex post options for addressing the claims of terrorist victims. Finally, we return to the default systems mentioned above, raising the question of whether they offer in all, or most, circumstances the most sensible approach to dealing with future incidents of personal injury from terrorist acts.