Tuesday, August 13, 2013
John Culhane (Widener) has posted to SSRN Sandusky's Victims: Compensation, Vindication, and Blame. The abstract provides:
In a select group of high-profile cases, compensation funds have begun to emerge as an alternative to tort law. After the tragic events of September 11, 2001, Congress created a Victim Compensation Fund for the families of those killed, and then expanded the fund in 2010 to cover first responders and others who suffered from long-term injuries in the aftermath of the attack. After the Deep Horizon Oil Spill in April 2010, BP established a compensation fund mostly to pay those who could prove they had suffered economic loss. Most recently, a compensation fund was created to compensate victims in the sex abuse case involving Earl Bradley, a Delaware pediatrician whose decades-long abuse of small children has caused untold physical and emotional suffering.
The cases that have given rise to these compensation schemes have little in common. This article explores the principal distinctions among them, and concludes that it is difficult to discern any rhyme or reason to the circumstances that give rise to compensation funds, or to the justification or shape of these funds when they are established. In the course of this project, the article sets forth some ground rules for deciding whether a compensation fund is a justifiable in particular cases.
With this analysis as backdrop, I then make the argument that the sex abuse case involving Penn State employee Jerry Sandusky case is an especially apt candidate for a compensation fund, and that the fund created to settle the civil case against Earl Bradley case provides a useful (though not perfect) template to follow in fashioning relief. The article concludes with a few more general observations on the special suitability of compensation funds to sex abuse cases.