Why it's important to treat all Sept. 11 victims alike. - By Emily Bazelon - Slate Magazine

Emily Bazelon - Slate Magazine:

Nobody argued when Congress offered to set up a fund for the families of the Sept. 11 victims who would agree not to sue in exchange for compensation. Even the Association of Trial Lawyers of America—an entity that rarely cheers for anything that deflects big lawsuits—announced that its members would give free advice to the families who applied to the fund.

But only six months after setting up shop, the fund is stuck. Fewer than 10 of the 3,000-plus eligible families have signed up. Most of the rest are concerned the fund won't treat them fairly and think that they might be better off relying on the courts and tort law to compensate them for their losses. The problem with the fund as it's conceived is that it treats damage awards too much like a court would. The best way for the fund to gain the families' trust—and with it some momentum—is to act less, rather than more, like a court.

The fund currently proposes to give families different awards based on the projected earnings and life expectancy of each victim. This future-earnings principle is the standard basis for calculating damage awards in tort suits, but here it's a wrong turn. The impulse behind this fund wasn't really to compensate the Sept. 11 families for their economic loss—it was to ease, in some way, the massive suffering caused by a national attack. In the currency of suffering, there's no way to compare one family to another. So the fund should give each the same award. Obviously there's no perfect way to decide who's entitled to what here—just as there's no way to justify a federal fund for the Sept. 11 families, when the families of the Oklahoma City and 1993 World Trade Center bombing victims (not to mention Pearl Harbor) got nothing. But if you set aside the goal of universal fairness and assume it's OK for Congress to help the families hurt by this particular attack, then equal awards are a little more just and a little more practical than anything else the fund can do.

As it stands, the Sept. 11 families who sign up are hit with a 30-page application filled with actuarial tables. There's a table for a victim who died leaving a spouse and one child, for example, and another one for a victim with two kids and no spouse. Across the top of the tables are arrayed numbers from $10,000 to $225,000 representing the victim's annual earnings. Along the side are ages from 25 to 65. Using set formulas, the tables work up variables like projected pay raises and tax rates. To arrive at a first estimate for an award, you look at the table that matches the composition of your family after the tragedy and locate the box that corresponds to the age and salary of the person you lost. If you have a child and lost a 45-year-old wife, the government will pay you $828,974 tax-free if she made $30,000 a year. If she made $150,000, you'll get $2,145,697.