Indeterminate Future Harm in the Context of September 11

The primary purpose of this paper is to assess how the September 11 Victim Compensation Fund, enacted by Congress within two weeks of the terrorist acts, addresses (and fails to address) the particular subset of prospective injuries that are associated with toxic exposure and possible harm arising in the future. Whatever one makes of the basic design of the scheme for immediate victims and their survivors, which is in fact quite controversial, the consequences for "futures victims" are a distinct matter about which Congress appears to have been either inattentive or unconcerned. After providing a general overview of the Fund and the correlative tort action established by the umbrella legislation, the Air Transportation System and Stabilization Act, the paper evaluates the compensation scheme along the lines of four key determinants for assessing no-fault compensation plans: 1) designating a compensable event; 2) setting limits on compensation; 3) deciding whether to retain the tort system; and 4) financing the system. In the course of discussing those determinants, the paper focuses, in particular, on discrete categories of prospective victims, based on the varying circumstances of exposure. Most commonly, claims arising under compensation schemes raise now-familiar issues of causation under conditions of uncertainty. By contrast, under the Fund, basic issues of system design, entirely apart from individual causation inquiries, require close attention. This circumstance, in turn, leads to a final section of the paper commenting briefly on some salient political considerations that offer still another perspective on the action Congress took in the wake of September 11. Rather than ending in the domain of realpolitik, the paper suggests that Congress could (and should) have provided for futures victims as well as those suffering immediate physical harm, assuming that a compensation plan was warranted in the first instance.