This is a deep and serious philosophical question that we ask juries and others who award monetary damages to answer all the time. This weekend I finished Kenneth Feinberg’s book What is Life Worth? describing his work with the 9/11 Compensation Fund. It’s an interesting read that details the working s of the team of individuals who worked for the fund, the agonizing stories that Feinberg heard, his workings with legislators, information about the Fund’s awards (the average award for a death claim was $2 million while the median award for a death claim was $1.7 million), and the list could go on and on. One point that he makes clear is that the Fund was not valuing the moral worth of those injured or killed, which was a very difficult point to drive home – hence the title of the book.
Among other things that Feinberg does in the book is answers questions about the fund and his experience – has it changed you (made him a better listener, more compassionate, and more accepting of human flaws and foibles), should there be a similar fund for earthquakes, etc. (no – interesting in light of Deepwater Oil Spill, although that’s private money), if there’s another attack like 9/11 should public compensation be just like the 9/11 Fund (no – the monetary awarded for each victim should be the same, not based on how much the victims were making per year), was it greedy for the 9/11 victims to try to maximize their awards (no – the law created a scale of victimhood which was measured in dollars thereby incentivizing them to try to maximize their awards).
The most important lesson from the book that we can take as every day lawyers and lawyers-to-be is to recognize the humanness of the situations of those we deal with. They are often in very difficult circumstances and their emotions are as much a part of their experience as the legal aspects. I see this from at least one disputant in nearly every mediation I do, be it a business dispute where people feel their careers are on the line to the small claims cases where I work with students. Lawyers too often, however, fail to understand this claiming that “it’s only about the money.” Those lawyers are either lazy or projecting their or their client’s feelings about the situation onto others. Here’s how Feinberg handles that argument.
A cynic might say that the hearings were all about money, that the emotional outpourings were well-orchestrated attempts to win greater cash payments. Maybe so – in a few cases. But the testimonials and memorabilia [of deceased victims] also helped many claimants gain some degree of psychological closure. In order to move on with their own lives, they first had to lay bare the life that ended on 9/11. And they had to perform this exorcism in front of someone. I happened to be there as a governmental respresentative to witness and preside over these final reflections and goodbyes. They would move on. But first, the memories of their lost love ones needed to be memorialized in an official proceeding.
Of course, not all claimants did this through hearings, but understanding and giving people room for emotional issues is an important lesson for any lawyer.
To Joe: The 9/11 victims could have sued the airlines for not having property safety procedures, i.e. allowing their planes to be hijacked and crashed into a building. The twin tower developers could have been sued for building a structure that collapsed with such ease and for any other legal argument laywers can devise.
The BP oil spill is definitely different though, a much clearer case of negligence.
http://www.bpandfeinbergbankruptedus.com
I failed to mention this in the post – the documentary about the 9/11 Fund “Out of the Ashes” will be playing at the ABA DR Section Conference in Denver. It will be worth your time as it follows 7 families with very different circumstances, including one of whom rejected the fund and sued.
They were compensated for a number of reasons, but primarily b/c those entities fearing devestating lawsuits – particularly the airline industry who feared that their industry would be wiped out – asked to government to do so. By participating in the Fund, claimants waived any civil claims against any individuals and entities. The Fund was as much a corporate bailout as it was compensation to individuals to keep them out of court. Finally, the country’s mood was that this was the right thing to do. Of course this causes some difficulties – what about the Oklahoma City bombing victims, what about the 1993 WTC terrorist attack, etc. – essentially where does one draw the line? And, that is one of the most difficult questions to answer, one that Feinberg wisely avoids.
9/11 was arguably foreseeable. Many of the lessons learned issued by the 9/11 comission noted that there were mistakes made.
Irrelevant of any of the negligent elements, however, is the fact that over 3,000 people were abruptly lost on that tragic day. I would argue the tragedy in itself is an example of why we need a program that justly and fairly compensates those lost by loved ones.
But even aside from these arguments, almost every one of the lives lost were at work when they were killed. This obviously includes the firefighters and police officers. But even those killed in the offices were working, which means that workers compensation is involved. So that’s one obvious reason why a vast majority of them would be compensated. I would imagine the government stepping in and compensating some of them directly (if that even happened) was meant to help insurance companies mitigate a loss that almost certainly ran into the billions — maybe even trillions — of dollars.
So from a policy standpoint, compensation for these victims makes an awful lot of sense. It saved American insurers, and thereby American insureds, an incredible amount of money. And it did so while ensuring that everyone got something. Sounds like a good plan to me.
Why exactly are victims of 9/11 being compensated? Their deaths didn’t happen as a result of a negligent oil spill or a fire caused by faulty wiring in an apartment that the landlord refused to have taken care of. This was an event that couldn’t have been forseen.