Yale Law & Policy Review Publishes Article Critical of 9/11 Victim Compensation Fund

The Yale Law & Policy Review has just published an article by Elizabeth Berkowitz entitled The Problematic Role of the Special Master: Undermining The Legitimacy of the September 11th Victim Compensation Fund, 24 Yale L. & Policy Rev. 1 (2006). Here is an excerpt from the Introduction:

Despite its practical and noble intentions, the ATSSSA [Air Transportation Safety and System Stabilization Act], and the Fund in particular, is a hastily constructed legislative patchwork that fails on a variety of counts. Given the speed of its enactment, the ATSSSA establishes only the bare bones of the Fund, furnishing few details and delegating much of its formation to an administrator called the Special Master. As authorized by the Act, the Special Master singlehandedly controls all operations of the Fund, wields broad power to create procedural and substantive rules, adjudicates claims exempt from judicial or administrative review, and manages an unlimited budget with no cap on expenditures. Congress failed to set bright-line rules, enunciate exclusionary definitions, or articulate a principled system of compensation. There is simply no "rationale, restraint, ethic or coherence" in the definition of awards, leaving the Special Master unilaterally responsible for filling in nearly every detail of the program.

In certain respects, the power the Act entrusts to the Special Master is sensible. Significant judicial review or congressional oversight generally slows the process of compensation. Furthermore, a single individual, especially one with expertise like the Special Master, is better suited to issue appropriate awards through a uniformly administered compensation scheme and can promptly construct a reliable and efficient procedure providing more immediate closure to the victims. Notwithstanding these benefits, the role granted to the Special Master is highly problematic and represents a significant defect in the Act. The ATSSSA's Special Master is a powerful decision maker vested with unfettered discretion to craft and run the Fund. All of our traditions, constitutional, doctrinal, and otherwise, militate against such authority being concentrated in a single individual. Moreover, previous congressional experience with national compensation schemes warns against the vesting of such discretion in a single individual. "The September 11th Fund will remain controversial because the source of the definition of its awards-- however able and committed--is not in any sense democratic."

. . .

This Article challenges the legitimacy of the Fund, and in part the statute that created it, by focusing on the role of the Special Master.