Indiana Law Review Compensation for Victims of Terror: A Specialized Jurisprudence of Injury Marshall S. Shapo* I. A Jurisprudence OF Injury The attacks of September 11 pose challenges to what I have called our jurisprudence of injury:' a comprehensive, if loosely defined system of law that includes tort, compensation statutes and regulation. The basic tort features ofthe events are clear. The primary wrongdoers were intentional tortfeasors, ofwhom the operational villains are dead and their managers, as a practical matter, are unreachable, unless the attacks eventually come to be tied to a government. One could ascribe negligence to a number of secondary actors in the American private sector and also to the federal government. Although one may reasonably predict that any negligence of the government would be immunized by the discretionary function exception of the Federal Tort Claims Act,^ this asserted negligence would provide a policy basis for the funding provided by the September 1 1th Victim Compensation Fund of2001 ("Fund").^ Further fleshing out the broad spectrum ofthejurisprudence of injury, the Fund itself represents, in an extraordinarily complex way, the sort ofcompensation system that has been primarily associated with workers' compensation. Finally, various regulatory and quasi-regulation issues swirl around the subject after the fact, notably the question ofhow much the government should be involved in providing security against terrorists—in this case, airport security. Complicating the analysis is what I have called, in another connection, the "Problem ofthe Missing Tsar,'"* Ideally, we might desire a sovereign who would make decisions on both an overall basis and a day-to-day basis about how the consequences of personal injuries are to be allocated among various social institutions. It is true that all of our traditions—philosophical as well as practical—^militate against having a Tsar. What is striking about the legislation setting up the Fund, however, is that in fact we have created a sub-Tsar for the event: the Special Master.^ A global challenge to a targeted fund of this sort inheres in the * Frederic P. Vose Professor, Northwestern University School of Law. This paper was first published in 30 HOFSTRA L. REV. 1245 (2003). I gratefully acknowledge permission of the editors ofthe Hofstra Law Review to reprint the paper in this Conference issue. I also express my particular thanks to Professor Warren Schwartz for encouraging me to write this paper. 1 . See generally MARSHALL S. SHAPO, ABA SPECIAL COMMITTEE ON THE TORT LIABILITY System, Towards a Jurisprudence of Injury (1984). 2. 28 U.S.C.§ 2680(a) (2000). 3. Air Transportation Safety and System Stabilization Act, Pub. L. No. 107-42, §§ 401-09, 1 15 Stat. 230 (2001) [hereinafter Air Safety Act]. 4. Marshall S. Shapo, Tort Reform: The Problem ofthe Missing Tsar, 1 9 HOFSTRA L. REV. 185 (1990). 5. Air Safety Act § 404(a). 238 INDIANA LAW REVIEW [Vol. 36:237 compassionate desire to create a comprehensive umbrella for a wide range of misfortunes. At the other pole is the instinct to decentralize the allocation of injury costs as much as possible to those who cause injuries and to victims who have any responsibility for their injuries. Thus, our desire for large public policy solutions, of which the most comprehensive injury compensation plan on the planet is the New Zealand solution,^ is forever at war with a tort approach, highly focused on the circumstances ofparticular injuries. The events of September 1 1 put these philosophical issues to a grisly test. This essay focuses on the Victim Compensation Fund, which is one title of a broader statute, the Air Transportation Safety and System Stabilization Act.^ I will comment on what Congress may have been thinking when it hurriedly passed this legislation, which is dated just eleven days after the horrific events in question. In addition, I will suggest some other rationalizations for this unique statute, including its specific combination of wealth transfers and liability limitations. II. The Events Let us briefly rehearse the facts of September 1 1 as they would appear in the narrow terms ofthe common law. The events in question arose out ofa carefully planned set of intentional torts. Persons who were literally troglodytes, halfway around the world, conceived a massive series oftrespasses and batteries with the purpose of inflicting emotional distress not only on victims but on the nation as a whole. As this is written, it is not beyond the realm of possibility that there may be some involvement of actual governments, in addition to unofficial organizations, in these events. If that were the case, there would be a potential to impose an international form of tort liability against those governments^ as well as, theoretically, against individuals and nongovernmental groups. From a domestic law point of view, however, the principal bases for tort liability lay in a set ofpossible negligences—or even strict liabilities—^that might be taxed to various actors. These included private providers of security, whose alleged carelessness in hiring and carrying out their duties appeared to present a prima facie case ofnegligence. Those front-line negligent tortfeasors, however, were likely to be unsuable for anything like the amounts at stake. More practical potential defendants were the airlines, who contracted with the security organizations, and who had independent responsibilities of care to their passengers and to others who would prove to be in harm's way. At least at the time the legislation was passed, before the disastrous plunges toward 6. For a summary by a knowledgeable observer, see Sir Geoffrey Palmer, Beyond Compensation: The New Zealand Experience, 15 U. HAW. L. REV. 604 (1993). 7. Air Safety Act §§401-09. 8. See, e.g., The Foreign Sovereign Immunities Act, 28 U.S.C. § 1 605(a)(5) (1 994 &Supp.) (allowing actions for damages "against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state" or its officials or employees). 2003] JURISPRUDENCE OF INJURY 239 bankruptcy of major carriers, the airlines were at least perceived to have had much more capacious pockets than the security firms. They were also the beneficiaries of the immunity provided by the waiver requirements the statute imposed on those who take advantage ofthe compensation system established for the victims of the attacks. Another group of private parties that might be defendants were the makers ofthe airplanes, who could be alleged to have provided inadequate security for the flight deck. Finally, a possible defendant was the government, whose agents possessed fragments of information that, in retrospect, could be interpreted to create duties to prevent these deadly acts, with the variety ofrisks they presented to many interests. I set against this background of legal theory a few personal anecdotes that have policy relevance to a day on which Americans will always remember where they were when they heard the news. As members ofmy law school community gathered in the school atrium during the first hours after the attacks, I encountered a woman whom I recognized as a member ofthe torts class that had just begun for the term. We chatted briefly about the possible effects of the events on civil liberties. The next morning I encountered her again, and she mentioned that she had been acquainted with a young man who had been a leader ofthe passengers' heroic stand against the hijackers on the Pennsylvania flight. That morning I also received an e-mail from another member of the class who told me that he would not be in class for some days because he had gone to New York City to see his orthodontist and could not get a return flight. He reported that his plane had landed at La Guardia at precisely 9:00 a.m. just as the attacks were in progress. A fellow synagogue member of one of my sons, who lives in Northern Virginia, crawled from the wreckage of the Pentagon. A friend and former professional colleague of my other son, who lives in Illinois, was the recently appointed director ofthe New York Port Authority. He did not escape from his office in the eyrie of one of the Twin Towers. I record these stories purely as illustrations ofthe radiations ofthese events throughout the polity—examples of how in a dreadfully fortuitous way they tended, at least pro tem, to make that fragmented collection of a quarter billion people into a community. III. The Legislative Response Congress' provision of compensation to individuals focused on those who died or were physically injured by the attacks. The legislation setting up the Victim Compensation Fund^ provides a virtual textbook of leading issues in contemporary injury law: • It establishes a non-tort alternative for "any individual (or relatives of a deceased individual) who was physically injured or killed as a resulf ofthe attacks. ^^ This alternative is a specialized compensation system under the 9. Air Safety Act §§401-09. 10. Id. §403. 240 INDIANA LAW REVIEW [Vol. 36:237 administration ofthe Special Master." "[T]he Special Master shall not consider negligence or any other theory of liability,"'^ and "may not include amounts for punitive damages in any compensation paid."^^ A remarkable subsection declares that "the amount ofcompensation to which the claimant is entitled" shall be "based on the harm to the claimant, the facts of the claim, and the individual circumstances of the claimant.""* "The Special Master shall reduce the amount of compensation ... by the amount of the collateral source compensation the claimant has received or is entitled to receive."'^ Collateral sources to be deducted from payments under the program include "life insurance, pension funds, death benefit programs, and payments by Federal, State, or local governments related to" the attacks.'^ The waiver of the right to file civil actions for those who submit claims under the Fund "does not apply to a civil action to recover collateral source obligations."'^ A claimant who submits a claim for compensation "waives the right to file a civil action ... for damages sustained as a result of the attacks.'^ For those who elect to sue carriers, there will be "a Federal cause ofaction" that "shall be the exclusive remedy for damages arising out of the attacks,'^ and the liability ofthe carriers for both compensatory and punitive damages "shall not be in an amount greater than the limits of the liability coverage maintained by the air carrier."^^ With a swiftness matched to the occasion, the Department of Justice, in consultation with the Special Master, who was appointed on November 26, 200 1 , moved to establish a detailed set ofrules for the administration ofthe Fund. The rules, originally promulgated in the form of an Interim Final Rule on December 21, 2001,^' include the following provisions as augmented in the Final Rule published on March 13, 2002:^^ • "Eligible claimants" include those present at the attack sites "at the time of or in the immediate aftermath ofthe crashes . . . who suffered physical harm" 11. Id. §404. 12. Id. § 405(b)(2). 13. Id § 405(b)(5). 14. Id §405(b)(l)(B)(ii). 15. Id § 405(b)(6). 16. Id §§ 405(b)(6), 402(4). 17. Id § 405(c)(3)(B)(i). 18. Id 19. Id § 408(b)(1). 20. Id § 408(a). 21. Interim Final Rule, September 1 1th Victim Compensation Fund of 2001, 66 Fed. Reg. 66,274 (Dec. 21, 2001) (to be codified at 28 C.F.R. pt. 104). 22. Final Rule, September 1 1th Victim Compensation Fund of 2001, 67 Fed. Reg. 1 1,233 (Mar. 13, 2002) (to be codified at 28 C.F.R. pt. 104). 2003] JURISPRUDENCE OF INJURY 241 and the personal representatives of those who died on any of the four hijacked planes or at any of the attack sites.^^ • The Special Master "shall take into consideration . . . individual circumstances" that "may include the financial needs or financial resources of the claimant or the victim's dependents and beneficiaries."^"* • Before the deduction of collateral sources, no compensation award could be less than $500,000 where a decedent had a spouse or dependent, or less than $300,000 if the decedent was single with no dependents.^^ • In the case ofdecedents "who did not have any prior earned income, or who worked only part time outside the home," economic loss could be calculated "with reference to replacement services and similar measures."^^ • "The presumed non-economic losses for decedents" would be "$250,000 plus an additional $100,000 for the spouse and each dependent of the deceased victim. "^^ • "[T]he United States shall be subrogated to all potential claims against third party tortfeasors of any victim receiving compensation from the Fund."^* IV. Problems in Administration and Public Perception The statute and the rules, drafted under the pressure ofpublic outrage at the events and compassion for the plight of the survivors, generated some difficult problems in practical administration as well as public relations. As the new year dawned, there were reports about the reluctance of potentially eligible people to sign on as beneficiaries of the Fund.^^ Television news clips captured the discomfiture of the Special Master, the very able and experienced Washington lawyer Kenneth Feinberg, as he faced emotional criticisms by survivors. The survivors complained of such features of the Fund as the $250,000 cap on noneconomic damages. A New York City police officer whose wife died in the attacks told Mr. Feinberg at a meeting with victims, "I feel your offer spits on my wife, my mother-in-law and my father-in-law," saying that he had to watch his in-laws "pop pills just to get through the day."^^ At the same time, criticism mounted from those vexed with what they considered the avarice of the victims' families. One viewer wrote an officer of 23. Interim Final Rule, September 1 1th Victim Compensation Fund of2001, § 104.2(a), 66 Fed. Reg. at 66,282. 24. Id. § 104.41, 66 Fed. Reg. at 66,286. 25. Id. 26. Id § 104.43(c). 27. Final Rule, September 1 1th Victim Compensation Fund of2001, § 104.44, 67 Fed. Reg. at 11,246. 28. Interim Final Rule, September 1 1th Victim Compensation Fund of 2001, § 104.63, 66 Fed. Reg. at 66,287. 29. E.g. , CBS Evening News (CBS television broadcast, Jan. 1 8, 2002). 30. Milo Geyelin, Criticism ofSept. 1 1 Victims ' FundSparks Backlash, WALL St. J., Jan. 23, 2002, at Bl. 242 INDIANA LAW REVIEW [Vol. 36:237 a victim advocacy group, "If $1 .6 million isn't enough for you, then I hope you rot in hell."^' Another letter writer said, 'Ve feel your grief, really," but "I'mjust wondering ifwe have to feel your greed, too."^^ A particularly graphic example of the almost tawdry mediaizing of the issue was a full color picture that occupied most ofthe front page ofthe Chicago Sun-Times. The photograph was of sixteen women, pregnant on September 11, whose husbands died in the attacks." These widows, most ofthem smiling broadly with their infants in their arms, appeared surrounding a radiantly smiling Diane Sawyer, anchor person for ABC. A Chicago computer consultant, interviewed by a reporter on State Street, declared that "a little bit ofthis is becoming a money grab How you die and when you die is somehow becoming worth more money. I don't think we're giving $1.6 million to the families of soldiers killed in Afghanistan."^"* Even within the narrow topic addressed here, Osama Bin Laden had created a problem for Solomon. Indeed, it was one that went far beyond deciding what to do with one baby in a controversy between two women. It required a consideration of the traditional rationales oftort law, ofthe bases for fashioning specialized compensation systems, and of the overarching problem of how society should respond to misfortunes generally. V. The Goals OF Law AND POLICY When we analyze policy questions both molar and molecular,^^ our scholarly traditions teach us to look for the major premise. What are the goals of law and policy in determining society's responses to the attacks of September 1 1? One orthodox form of analysis indicates that a principal goal of injury law is the control of behavior that creates risks. Interestingly, the deterrence function indirectly provided by the statute requires initiation by claimants who elect to bring private actions. Ifone assumes that allowing suits against carriers and their agents would lead to efficient levels of risk-taking, the statute creates an intriguing wrinkle on the usual criticism of the "negligence lottery." In this context, any social dicing will depend upon the decisions ofindividual claimants to seek compensation from the fund or to exercise their common law rights to sue the airlines. It is relevant here to refer to the very first section of the overall statute, which, as noted, is called the Air Transportation Safety and System Stabilization Act, and of which Title I is labeled "Airline Stabilization."^^ That section provides for federal compensation for air carriers, implemented by the President, 3L Id. 32. Id 33. Victims ' Families Face Backlash, Cm. SUN-TlMES, Jan. 24, 2002, at 1 . 34. Art Goleb, Victims Fund Raises Ire, CHI. SUN-TlMES, Jan. 24, 2002, at 18. 35. Justice Holmes penned this dichotomy in Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J., dissenting). 36. Air Safety Act, Pub. L. No. 107-42, 1 15 Stat. 230 (2001). 2003] JURISPRUDENCE OF INJURY 243 "in an aggregate amount equal to $5,000,000,000 for direct losses incurred beginning on September 1 1th, 2001, by air carriers as a result of any Federal ground stop order"^^ and subsequent orders ofthat sort. This amount also covers "the incremental losses incurred beginning September 11, 2001, and ending December 31, 2001, by air carriers as a direct result of such attacks."^^ Thus, typifying a public choice approach, Congress pays off the airlines for their misfortunes as a result ofthe attack; under the same statutory roof, it also leaves open a litigation avenue for injured persons and survivors that presumably would have the incidental result of making the airlines more careful. The legislation manifests several specific purposes. But intuition suggests that, fashioned in the emotional aftermath ofthe attacks, the statute also reflects an unfocused desire to strike out against a particularly awful set of life's misfortunes, events burdening the national soul with a recognition that retribution is not available on behalfofthe victims—or the nation—in any tit-for-tat manner. The statute is thus both a symbol of displaced vengeance and a marker of social compassion. At the very outset ofthe Special Master's statement attached to the Interim Final Rule for the Fund, he refers to the Fund as "an unprecedented expression ofcompassion on the part ofthe American people to the victims and their families devastated by the horror and tragedy of September 1 1 ."^^ The use of law—any kind of law—as a deterrent is imprecise at best.''^ Because ofthat inexactitude, dependence on deterrence as the centerpiece oftort rationales constantly runs the risks of both under- and over-deterrence. Those difficulties find a close parallel within injury law in problems ofunder- and over- compensation. In traditional analysis, fairness of compensation is the other principal pillar of injury law alongside deterrence. Suits against the carriers, in the view of some, would provide some corrective justice in favor of the victims and survivors. However, the enactment of the compensation legislation obviously is aimed at fairness in the round—at a kind of distributive justice in a situation where the concept ofjustice is multifaceted. In theory. Congress might have begun the legislative process by viewing itself as a think tank, dedicated to cogitating on the human toll of the attacks in the broad context of how society allocates life's burdens, including the burdens of death and injury in general. However, Congress did not have that meditative luxury. Even if it had, it would have been sensitive to the problem of the Tsar; Congress would have recognized that it is not at all likely that it will enact a fully 37. Id. § 101(a)(2)(A). 38. Id. § 101(a)(2)(B). 39. Interim Final Rule, September 1 1th Victim Compensation Fund of 2001, Statement by the Special Master, 66 Fed. Reg. 66,274, 66,274 (Dec. 21, 2001) (to be codified at 28 C.F.R. pt. 104). 40. Cf. Moisan v. Loftus, 1 78 F.2d 1 48, 1 49 (2d Cir. 1 949). In this opinion, which implicitly emphasizes the limits ofthe formula in UnitedStates v. Carroll Towing Co., 159F.2d 169, 173 (2d Cir. 1947), Learned Hand notes the "illusory" nature of quantitative estimates ofthe factors most often crucial to issues of negligence. I am grateful to Chris Montroy for calling this case to my attention. 244 INDIANA LAW REVIEW [Vol. 36:237 articulated, comprehensive compensation system for all kinds of misfortune. Therefore, in deciding to allocate federal funds to the victims, Congress made a pragmatic decision to carve out these particular events from all the rest of life's misfortunes for which some remedy can be provided by dollars. In this regard, it is noteworthy that the victim compensation part of the statute "constitutes budget authority in advance ofappropriations Acts and represents the obligation of the Federal Government to provide for the payment of amounts for compensation under this title.'"*^ With respect to those who choose to take advantage of federal funding and thus to waive any tort actions. Congress made a number of rough-and-ready judgments. Thesejudgments reflect many ofthe cross-currents that run through our law of injuries, including the common law of torts and the development of statutory compensation systems. The decision to enact a no-fault system is one ofthe most important ofthese choices. We should note the contrast between this no-fault scheme and that of workers' compensation. Even at the time that the states adopted the workers' compensation model to deal with the problem of industrial injuries, there was at least a real possibility of a tort action against a known defendant who was directly responsible for the injuries in question. By comparison, any fault of potential domestic defendants in the case of the September 1 1 attacks is a fault that derives only from the crimes of third parties who are either dead or extremely elusive. The decision to leave to claimants the choice of an assured compensation payment from federal funds or the gamble of a torts suit is not a unique one,*^ although this surely is not the approach of the workers' compensation model. Again, the comparison with that system is interesting. Workers' compensation is in the main an exclusive remedy, with its exclusivity justified on the basis of a well known quid pro quo: plaintiffs give up the tort action, tied as it is to the handicaps of contributory negligence and assumption of risk, in exchange for a relatively assured, if often less lucrative, payment. By comparison, the Fund legislation offers legal consumerism in the hyper mode. Although the suit against the carriers is an exclusive remedy within the category of civil actions, it is only one oftwo full alternative remedies. Wildly differing metaphors may apply: the consumer gets to play one oftwo games available in the casino or gets to pick from either oftwo sections ofthe supermarket. These crass presentations of the issue simply underline the leeway to indirectly influence the choice of social policy that Congress has given to potential claimants. In addition to the straight subsidy provided to the airlines for both direct and incremental losses, and the compelled waiver of civil actions imposed on those who elect compensation from the Fund, the carriers received yet another benefit from the Fund section ofthe legislation. This is the provision on liability actions 41. Air Safety Act § 406(b). 42. See, e.g., Allison v. Merck & Co., 878 P.2d 948, 960-61 (Nev. 1994) (allowing tort suits for vaccine-caused injuries despite the National Childhood Vaccine Injury Act of 1 986, 42 U.S.C. §300aa-ll (Supp. 1992)). 2003] JURISPRUDENCE OF INJURY 245 that caps "liability for all claims, whether for compensatory or punitive damages" at the "limits of the liability coverage maintained by the air carrier.'"*^ That provision is an anomaly where traditional tort law is concerned. In fact, it is a very different kind of cap than those that typically appear in tort reform legislation and proposals, which focus on damage amounts for noneconomic losses and punitive damages. Those types of caps essentially define, if arbitrarily, what losses are. By comparison, the Fund legislation implicitly acknowledges that legally recognized losses may be greater than insurance coverage but makes a public choice that is in essence a direct subsidy. The usual stance of tort law, in current slang, has been that entities that are careless on a large scale "deserve to die." Illustrative are the bankruptcies of many asbestos companies as well as of the maker ofthe Dalkon Shield. But for a variety of policy reasons. Congress in this statute enacted the view that the airlines deserved to live even if they were careless; indeed. Congress in effect said that they must live, for the health of the nation. Another interesting feature of the Fund legislation is the breadth of its definition of the collateral sources that must be deducted from payments by the Fund. Particularly striking is the inclusion of life insurance in the definition of deductible collateral sources, a choice that goes beyond traditional definitions of such payments. Giving especially sharp point to Congress' decision to deduct collateral sources and to deduct them so broadly—and its apparent premise for doing so—is the Special Master's explication ofthe definition ofeconomic loss. He paraphrases the Rules as mandating that his "schedules, tables, or charts should identify presumed determinations of economic loss up to a salary level commensurate with the 98th percentile of individual income in the United States. '"*"* He comments that "[a]ny methodology that does nothing more than attempt to replicate a theoretically possible future income stream would lead to awards that would be insufficient relative to the needs ofsome victims' families, and excessive relative to the needs of others.'"^^ He also notes specifically that the requirement in the Act that he consider "the individual circumstances ofthe claimant" indicates that the Special Master may consider a particular claimant's financial needs and resources, just as the Department [of Justice] and the Special Master considered the needs of claimants in concluding that no claimant bringing a claim on behalf ofa deceased victim should receive less than $500,000 or $300,000 before collateral source offsets.^^ Congress, the Rules, and the Special Master thus all accept the proposition that social fairness requires taking need into account. But need is defined, in true 43. Air Safety Act § 402(4). 44. Interim Final Rule, September 1 1th Victim Compensation Fund of 2001, Statement by the Special Master, 66,274, 66,278 (Dec. 21, 2001) (to be codified at 28 C.F.R. pt. 104) (paraphrasing § 104.43(a)). 45. Id. 46. Id. 246 INDIANA LAW REVIEW [Vol. 36:237 capitalist style, as related closely to income levels. Illustratively, before collateral offsets, the payments to survivors of a married victim who died at thirty-five with two dependent children would total $613,714 if he was earning $10,000, but would be $3,805,087 if he was earning $225,000.^^ For a single decedent who was thirty-five and earning $10,000 when she died, the payments—again before collateral offset—would be $3 12,083, but they would be $2, 1 89,3 1 1 for someone earning $225,000.^^ These raw numbers are excellent examples of the reasons for the canker of critical legal scholars about the inegalitarian nature oftort damages."*' However, the Rules do make a small bow to feminist analysis in providing that for non- earners, the Special Master may consider "replacement services and similar measures."^^ The bow is a restrained one because at least in their terms, the Rules do not take into account the opportunity cost of homemakers who would net more money by putting their children in day care while they more fully realize their earnings potential.^' The Rules make a cleai: set of choices about the dollar value of feelings and of life generally. Perhaps the most interesting of these is the presumption of a $250,000 value for the noneconomic loss of decedents and an additional $100,000 for that of spouses and dependents. Those familiar with the cases involving pre-impact fear ofpersons killed in air crashes will understand that this appears to be exceptionally generous with respect to the awful final moments of the decedents.^^ By contrast, the Rules seem relatively stingy with respect to the affective losses of survivors. These arbitrary choices simply illustrate the incoherency—perhaps the necessary incoherency—of our theories of tort damages, especially damages for intangibles. Underlining the difficulty of quantifying affective relationships in precise dollar amounts is the change ofthe awards for spouses and dependents from $50,000 in the Interim Final Rule to $100,000 in the Final Rule.^^ The explanation is laconic, as it almost had to be: "After reviewing the public comments and meeting with numerous families of victims, we have decided to double that amount to $100,000 for the spouse and each dependent."^'* Related benchmarks are the overall compensation minimurns of$500,000 for 47. Id. (Charts of the Special Master). 48. Id. 49. See, e.g., Richard L. AbeM Critique ofTorts, 37 UCLAL. REV. 785, 799 (1990) ("[t]ort damages deliberately reproduce the existing distribution of wealth and income"). 50. Interim Final Rule, September 1 1th Victim Compensation Fund of 2001, 66 Fed. Reg. at 66,286. 51. I am grateful to Martha Chamallas for remarks that led to this observation. 52. See, e.g., Haley v. Pan Am. World Airways, 746 F.2d 311, 317-18 (5th Cir. 1984) (affirming $ 1 5,000 award "for no more than four to six seconds of . . . anguish"). 53 . Compare Final Rule, September 1 1 th Victim Compensation Fund of200 1 , 67 Fed. Reg. 1 1,246 (Mar. 13, 2002) (to be codified at 28 C.F.R. pt. 104), with Interim Final Rule, September 1 1th Victim Compensation Fund of 2001, 66 Fed. Reg. 66,286. 54. Final Rule, September 1 1 th Victim Compensation Fund of200 1 , 67 Fed. Reg. at 1 1 ,239. 2003] JURISPRUDENCE OF INJURY 247 decedents with spouses or dependents and $300,000 for single decedents with no dependents. These are themselves arbitrary figures that could be criticized as too low; few would have the temerity to say that they are too high. What is significant is that they appear to codify a general belief that for a variety of reasons, stated and mostly unstated, the existence of a life itself has financial value. It is interesting in this connection that Congress, perhaps casually, specifically included the currently controversial concept of "hedonic damages" in the definition of "noneconomic losses." It is worth noting, at least incidentally, that the statutory references to those eligible for compensation do not appear to be rigorously logical. One may compare, in this regard, the statement of congressional purpose "to provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed" in the attacks^^ with the definition of the category of eligible individuals as including "the personal representative of the decedent who files a claim on behalf of the decedent."^^ There appears to be a mixture here oftraditional concepts ofwrongful death and survival, but this is surely not unique in our existing state law. Conclusion The Fund legislation, and the losses that generated it, house many of the central arguments about how society should deal with injuries. In particular, they raise in a very emotional context the cross-equity problem among all kinds of injuries and misfortune more generally. From a social point ofview, how do we distinguish the deserts ofthose who slip in the bathtub from those injured in the "second collision" ofan allegedly uncrashworthy automobile? More relevantly, how do we distinguish those individuals from the firemen who were headed up into the Twin Towers as everyone else was coming down, and American soldiers who die from either hostile or friendly fire in Afghanistan? Tort law provides only interstitial answers, and those only to the first referenced pairing of victims, and Congress, as we have noted, is not likely to provide a comprehensive solution that encompasses all the cases. With no Tsar to place the issues in a general framework and settle them globally, the equity profile of compensation is a jagged one. On this battleground, symbolic disputants are the man who claims that a cap of a quarter of a million dollars on the intangible losses ofhis wife spits on her memory, and the person who accuses survivors of greed. And that battleground is a political one. In creating the Fund, Congress tried to broker the politics of injury. What are we to make of this legislative patchwork, hastily constructed with the noblest intentions? Unlike the thoroughgoingNewZealand scheme, the Fund legislation carves out a narrow wedge of misfortune. Limited as it is to the relief ofvictims of events occurring in just three places on a single morning, the statute even contrasts with the workers' compensation laws and the varied no-fault statutes 55. Id. § 403. 56. Id. § 405(c)(2)(C). 248 INDIANA LAW REVIEW [Vol. 36:237 for motor vehicle accidents. All of those statutes embrace injuries that occur every day throughout their jurisdictions. There will be many different interpretations of why, out of the broad spectrum of possible responses. Congress chose to create this Fund with its distinct provisions. Surely some ofthe distinguishing features ofSeptember 1 1 th that led our national legislature to this solution include the unique occasion ofan attack on the continental United States that caused thousands of deaths and the repetitively broadcast television images ofthe events. Even the instigating cave- dwellers ofAfghanistan saw—as we all did—^the crashes, the fire and the smoke as they rolled along miles of videotape. Let me compare the day of the attack on Pearl Harbor, at the edge of my memories ofboyhood. Without plumbing the comparative impact ofprint, radio, and television, I think that we can say that the events of September 1 1 turned out to be a quintessential television occasion. That would have been so even ifthose events had not been made for television, though it appears that in a very real sense their diabolical instigators planned them that way. By contrast, Americans who saw films of the attack on Pearl Harbor saw them, if at all, in newsreels in theaters. Moreover, Hawaii was not a state at that time and, in any event, was 2500 miles away from the country as it then was constituted. The attack on the continental United States in 2001 aroused many feelings, but one response that stands out and is manifested in the Fund legislation—^and is further magnified by the subsequent anthrax cases—is a new sense of national vulnerability. All of this has led to a unique form of public choice. Responding to a most tragic set of circumstances, the legislation has something for everyone. Specifically as to the airlines, it pays them off, it limits their liability in any event, and it offers them a potential immunity—remarkably, one conferrable by choices made by victims and survivors. All this it does while compensating a wide range of losses for those victims and survivors from the general revenues. Finally, the legislation and the Rules provide a certain balm for us all, in our continuing horror at the events, our collective compassion for the victims, and our increased sense ofvulnerability. The film clips and reports ofthe discussions that a sometimes beleaguered Special Master has had with the survivors present a continuing drama that would be as familiar to Tocqueville as to devotees of soap operas. After the accelerated fashioning and passage ofthe statute and the speedy drafting of the rules with the Special Master's explication, we are only in an intermediate stage of that drama. Now we appear to be witnessing a nationwide community conversation about the limits ofcompassion, the sharing of burdens, and even the vices of greed and envy. A byproduct ofthe Fund statute is its teaching about the limits oftraditional economic analysis. Perhaps the most noteworthy feature ofthe Fund legislation is its most obvious feature: the commitment of federal money for the relief of victims of what was not only perceived domestically as an attack on us all, but was intended to be perceived that way. Churchill, perhaps the greatest figure of the twentieth century in light of his combined accomplishments, captured the core of the situation with his characteristic eloquence, concision and humanity. In his war memoirs, he describes how his insistence on a national insurance scheme for bomb damage arose from his view of a demolished restaurant in 2003] JURISPRUDENCE OF INJURY 249 Margate: The proprietor, his wife, and the cooks and waitresses were in tears. Where was their home? Where was their livelihood? Here is a privilege of power. I formed an immediate resolve. ... I dictated a letter to the Chancellor of the Exchequer laying down the principle that all damage from the fire of the enemy must be a charge upon the State and compensation be paid in full and at once.^^ Churchill observed that it was essential to the political success of this scheme that the public and Parliament were willing "to separate damage resulting from the fire ofthe enemy from all other forms ofwar loss."^^ He added, "it would be a very solid mark ofthe confidence which after some experience we are justified in feeling about the way we are going to come through this war."^^ There are, of course, differences in both the events and the responses. But as a general description of the politics and the policy of this specialized jurisprudence of injury, the words ofthe master are resonant. The Fund forges a linkage, one beyond the graphs of microeconomic theory, among tens of millions of souls. Besides the survivors, these include—only illustratively—my student with her acquaintance on the Pennsylvania plane, my student with the orthodontist's appointment in New York, and my sons and their friends and colleagues, living and dead. 57. Winston Churchill, Their Finest Hour 349 (1 949). 58. Id. at 350. 59. Id.