Choice Between Cash and the Courthouse

Prof. Gillian Hadfield looks for the rule of law in the Sept. 11 Victim Compensation Fund

—By Gilien Silsby

After interviewing dozens of family members and victims of the September 11, 2001, attacks, Gillian Hadfield, a USC Law professor, has shed new light on the question of whether sustained efforts through tort reform and alternative dispute resolution to reduce litigation threaten to undermine important democratic values.

Prof. Gillian Hadfield

“Responses make it clear that potential plaintiffs saw much more at stake than monetary compensation and that the choice to forego litigation required the sacrifice of important nonmonetary, civic values: obtaining and publicizing information about what happened, prompting public findings of accountability for those responsible, and participating in the process of ensuring that there would be responsive change to what was learned about how the attacks and deaths happened,” Hadfield said.

The results shed light on the framing component of the transformation of disputes, and in particular on how potential litigants see the decision to sue, or not, as a decision as much or more about how they understand their relationship to their community and their responsibilities as a citizen as how they evaluate monetary considerations.

Although many considered the VCF to be a success — 97 percent of families received payments — Hadfield argues that the fund itself perpetuated a damaging misconception of the civil legal system.

“The fund ignored the most important function of the civil legal system: providing ordinary citizens an opportunity to participate in resolving disputes and adjudicating rights and wrongs,” she said. “Our legal system is indispensable to democracy not simply because it provides cash to those who suffer wrongs, but because it allows a regular person to call upon the power of the state to investigate a wrong and hold someone accountable.”

For Hadfield, the issue isn’t about assigning blame, but rather who gets to decide whether blame should be assigned.

Clearly, she said, some Sept. 11 families felt their rights were sacrificed. Through interviews with victims’ families, Hadfield found that several were frustrated by the “choice” presented to them: either receive immediate assistance through the fund or pursue a lengthy, expensive claim in court. Even those who wanted to pursue a claim found that few lawyers would take their cases.

“Some were angry that they were being funneled into the fund,” Hadfield said. “They didn’t want to just sit back and see what elected officials would do.”

In fact, the much-delayed congressional investigation of 9/11 focused solely on the government’s failure to prevent the terrorist attacks. Poorly enforced fire codes, faulty equipment that hampered communication and rescue efforts, and airport security lapses were not part of the investigation.

“Money is not what the families were concerned about,” Hadfield said. “If more people died than needed to because of poor fire proofing, shouldn’t we want to know that and address it?”

Hadfield’s recommendations include eliminating any requirement to forego litigation in exchange for compensation or establishing a forum to provide victims and families with a streamlined version of the essential powers of a civil lawsuit.

“Civil litigation is an extraordinary democratizing instrument,” Hadfield said. “It is the only way that a housewife from New Jersey, for example, can make the president of American Airlines show up and answer questions about her husband’s death. The system is obtuse, open to distortion and incredibly slow. But the answer isn’t — and can’t be — to throw out the system entirely.”