The terrorist attacks of September 11, 2001 were a unique event in United States history. Congress reacted in part by establishing the September 11th Victim Compensation Fund (Fund), an approach to victim compensation that was unprecedented and so far unrepeated.1 While the Fund shared its goal of compensating victims for the incredible loss of a wrongful death with the wrongful death tort regime of the fifty states, the methods the Fund used to calculate awards differed dramatically from those used by the states. The Fund enjoyed overwhelming acceptance among those eligible, with a participation rate of over 97%2 - and this was despite requiring participants to waive their right to litigate with respect to the attacks and to have their awards reduced by the amount received from collateral sources such as insurance.3 It was the consensus view of those eligible for the Fund that it offered a deal preferable to the one available through tort actions.
What can the Fund teach us about reforming state wrongful death law? This Article compares the goals of the Fund with those of the states' wrongful death tort law. It analyzes the shortfalls of state tort law and proposes improvements suggested by the success of the Fund. Its proposals address the method of determining plaintiff eligibility and the calculation of both the economic and noneconomic damages of wrongful death, as well as the collateral source offset rule. Ultimately, this Article recommends (1) looser restrictions on who can receive an award to include the heir designated in the victim's will or her first intestate successor in cases where states would currently dismiss the claim outright; (2) greater, nearconclusive reliance on generalized demographic data to ascertain components of economic damage currently barred or left to speculation; and (3) a large, near-conclusive presumption of a fixed amount of non-economic damages with additional, pre-defined increases for a surviving spouse and each surviving dependent.
Together, these changes should (1) allow for more cases to proceed that would otherwise have failed because of the lack of a statutory beneficiary; (2) provide a fairer measure of damages, thereby better serving both the compensatory and deterrent goals of tort law; (3) reduce the arbitrariness of wrongful death verdicts, both by raising the lowest outliers and by lowering the highest; (4) shorten the damages phase of wrongful death suits, thereby lowering both the economic and emotional cost of the trial; and (5) reduce the tension that judges and juries feel between the strictures of the law and the intuitively correct outcome.
II. OVERVIEW OF THE FUND AND OF TORT LAW
To evaluate the effectiveness of the various frameworks for wrongful death causes of action under state law and the reasons for the success of the Fund, we first must ascertain the goals behind each institution. Canonically, tort law serves two purposes: to deter potential tortfeasors from committing torts by threatening them with the cost of an adverse judgment, and to compensate the tort victim for the harm caused by the tort. Both goals are satisfied when courts can reliably ascertain the existence of a tort, precisely calculate the extent of the harm that it caused, and effectively award this amount to the victim.
Each of these three steps can fail, however, and frustrate either or both goals of the tort system. If courts cannot ascertain whether a tort has occurred because the victim never brings a claim or because a case is erroneously dismissed, the victim in that case receives no compensation and potential tortfeasors will be at best partially deterred in the general case.4 If a court cannot precisely calculate the extent of the harm that the tort caused, it cannot be assured that an award will appropriately deter potential tortfeasors or that the victim in that case will be appropriately compensated. And, if a court cannot effectively award the amount of the harm to the victim because the plaintiff or the defendant is unavailable, then deterrence is frustrated because the tortfeasor will not pay the award and compensation is frustrated because the victim will not receive the award. …