Playing Solomon in Today’s Legal Culture

Kenneth Feinberg has one of the most thankless jobs imaginable. Feinberg is the Special Master in charge of the Victims Compensation Fund created by Congress in the wake of September 11. The Fund is intended to compensate the victims and their families.   The Fund embraces the idea that, whatever the negligence of the airlines and their contractors, the hijackings themselves were the reason for the three thousand-plus deaths on September 11.   Under Feinberg's proposals, awards would range from $350,000 for the family of a single man earning $10,000 to approximately $3.8 million for the family of a married man with two kids who is earning $225,000. The average award would be $1.65 million.   These proposals, as well as the ideas they reflect, run counter to some of the ideas most responsible for the outrageously huge jury verdicts that have become part of our legal landscape. And victims and their lawyers didn't waste any time expressing displeasure.   One widow told the Seattle Times that she was "ready to throw up" after learning that she would "only" receive $1.5 million under Feinberg's proposal. A representative of Families of September 11 unfavorably compared the plan to the "$2 million to $5 million or more . . ." that other plaintiffs in aviation cases and terrorism cases have gotten. And one trial lawyer, who won $17 million for the widow of a man killed on Pan Am 103, called the plan "absolutely terrible."   Feinberg calls the criticism "incorrect but perfectly understandable." It is understandable, but not just for the reasons he gives. Changes in our legal system have transformed our expectations and beliefs about suffering and loss profoundly. Americans have come to believe that every injury must have a remedy.   It doesn't matter if the circumstances were scarcely foreseeable or, as in the events of September 11, the direct result of an act of war. Blame must find its way to someone with assets. This is a complete reversal of the historic understanding of tort law, which taught that insurers or owners weren't responsible for damages that resulted from unforeseeable causes, like some natural disaster. In other words, people couldn't recover unless someone was culpable.   This reversal has created a sense of entitlement. It's not enough to compensate victims for their financial losses. Rather, any damage award or compensation must amount to a windfall for the victims and their family. Tort law has helped turn tragedy and loss into a lottery ticket -- one that's guaranteed to pay big.   Similarly, there's no sense of law's limits, or of its inability to compensate for some losses, such as those that occurred on September 11.   All of this is the result of separating our legal system from its moral roots. The great legal scholar Sir William Blackstone once said that the genius of the Anglo-American common law was that it reflected the beliefs of people infused with the spirit of Christ. Not anymore. Law is now the ticket for greed and the playground for social engineers.   And that's what makes Feinberg's task so thankless. Acting justly in these circumstances is hard enough. Doing it while working in a system that's forgotten what makes being just possible is nearly impossible.   For further reading:   "Victims' families to get average of $1.6 million," The Seattle Times, 21 December 2001.   Chuck Colson, When Night Fell on a Different World: How Now Shall We Live?  

01/10/02