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"Equity for All Victims"--A Commentary by Prof. Peter Schuck

(This essay originally appeared in the December 19, 2001, edition of the "New York Times")

Equity for All Victims

By Peter H. Schuck, Simeon E. Baldwin Professor of Law

New Haven -- America's response to the catastrophe of Sept. 11 is in many ways reassuring. Through both public policy and individual action, we are striving, in Lincoln's memorable phrase, to bind up the nation's wounds.

The survivors of the attack are the beneficiaries of the greatest outpouring of financial support for victims of an unforeseen calamity in our history. Congress has provided at least $11 billion in compensation funds, which could average out to more than $2 million per victim.

The new fund, scheduled to begin operations Friday, will prompt many questions about fairness. The family of a 47-year-old stockbroker, for instance, is likely to receive a higher award--based on a calculation of her future earning potential--than the family of a 19-year-old dishwasher. Our legal system assigns different monetary values to human lives even as we strive in other ways to treat every human life as equally precious.

But a more fundamental question raised by the Sept. 11 compensation fund is this: Why them? Why are these victims treated so generously, while countless other equally innocent victims of horrific accidents go uncompensated?

Simply asking this question may seem callous. After all, the families of those who died Sept. 11 have suffered immense economic and emotional loss, and a compassionate society should attend to their suffering and try to assuage their losses insofar as money can do so. Their claim on America's generosity is compelling.

Our eagerness to satisfy this claim, however, stands in contrast to a striking social fact. We exhibit little solicitude for the far more numerous victims who through no fault of their own suffer equally traumatic losses. We leave them to their own devices--insurance, private charity and tort law. Compared to the victims of Sept. 11, most of them end up with a pittance.

How can we justify treating these more typical victims so differently? One answer is that those who died Sept. 11 suffered for an act of terror directed against the United States, and so the federal government must bear some responsibility for making them whole. But this cannot explain a system that allows such disparate treatment of equally deserving victims.

Certainly these more typical victims can suffer as much harm as those who died Sept. 11. The costs of accidental deaths and injuries in the United States are staggering--approximately $500 billion each year. Nor are typical accident victims more responsible for their own losses than the victims of Sept. 11. Of the hundreds of thousands killed or injured in accidents in the United States each year, for example, 40,000 die in automobile accidents. Some of these victims are negligent, but many of them, like passengers or pedestrians, are not. Almost all of the nearly 600 people who die in railroad accidents each year are faultless. And these are only the deaths; serious injuries are far more common.

The typical accident victim must follow a tortuous path. First she must find a lawyer who sees a profit in taking her case. Then she will embark on a long adversarial process in the courts, where she must prove, among other things, precisely who caused her loss and that the wrongdoer was negligent. (It is not clear that the Sept. 11 survivors could have met these requirements if they sued the airlines, for example.) If she does prove this, and obtains a judgment, she must then try to collect it--and a third of that recovery will typically go to her lawyer. If she fails to prove her case, of course, she receives nothing. No wonder that only one injured accident victim in 10 attempts to collect compensation. (This proportion rises to about five in 10 for those injured in auto accidents.)

Fortunately, the Sept. 11 victims will not have to go through the same legal system as more typical victims. They can invoke an application process that has few obstacles and culminates in swift and generous compensation. By law, they will receive a decision on their case within 120 days. Unfortunately, we continue to insist that other victims endure the frustrations of the tort system.

There are strong arguments for moving to a system in which all incidents that inflict large losses on innocents are compensated through an administrative claims process that assures swift, certain payment on a no-fault basis. Indeed, states established workers' compensation programs almost a century ago for industrial accidents. In 1932 a similar approach was proposed for automobile accidents, and some states have passed plans that mix tort and no-fault elements.

The federal government has created special compensation programs for a few narrow categories like childhood vaccine injuries, black lung and nuclear accidents. These programs are designed partly to reduce the income-based disparities in awards so characteristic of the tort system.

No-fault compensation is no panacea. All of these reforms are plagued with difficulties because the goals of reducing accidents, compensating victims and avoiding fraud at an acceptable cost cannot be fully reconciled. The Sept. 11 victims compensation fund will surely face some of these same problems. Yet not even tort lawyers have proposed that the victims of Sept. 11 should have to seek relief through the tort system.

America's dedication to justice for the victims of Sept. 11 is admirable. Even more inspiring would be a commitment to treat all seriously injured victims with equal justice and compassion.

Peter H. Schuck is a professor at Yale Law School and author, most recently, of "The Limits of Law."