The Problematic Structure of the September 11th Victim Compensation Fund

Abstract

This Article addresses the structure and organization of the September 11th Victim Compensation Fund of 2001. The Article is inspired by the extraordinary controversy that has attended the Fund and its operation. There is—in my view—a universal consensus that it was entirely appropriate for the Congress, on behalf of the American people, to create the Fund. All citizens sympathize with the thousands of victims of the September 11th attacks, and I have seen no serious commentary suggesting that a compensation program like the September 11th Fund should not have been created. Moreover, there is also general consensus that the person to whom widespread discretion for its implementation has been delegated, Special Master Kenneth Feinberg, has executed his duties, as much as he possibly can, with good judgment, commitment, and dedication to the victims whom the Fund aspires to compensate. Nevertheless, the September 11th Fund has generated remarkable controversy. Virtually all of its individual components have been criticized in some form. Although the very large majority (97%) of those eligible for compensation filed claims, the Special Master has been sued by sets of families in federal court, chiefly, it appears, by families of comparatively high income victims (many from Cantor Fitzgerald). For months, the press reported heated complaints about the Fund on nearly a weekly basis.