What's Law Got to Do with it? Designing Compensation Schemes in the Shadow of the Tort System

27 Pages Posted: 2 Mar 2004

See all articles by Anthony J. Sebok

Anthony J. Sebok

Yeshiva University - Benjamin N. Cardozo School of Law

Abstract

This article, which was prepared for the 2003 Clifford Symposium at DePaul University School of Law, examines the doctrinal foundations of Congress's decision to create an alternative compensation plan for victims of the terrorist attack on September 11, 2001. According to the statements made by the drafters of the plan, the risk of tort litigation against the airlines by victims on the ground (especially in the World Trade Center) was so large that the financial solvency of the airlines seemed imperiled. This paper examines that assumption from the perspective of duty. It looks at the law of one state - New York - and analyzes structure of the duty of a defendant to protect another against the intentional wrongdoing of a third party. The article argues that, in New York at least, doctrine developed since Strauss v. Belle Realty Co. requires judges to take into account public policy concerns quite similar to those that motivated the U.S. Congress to preempt the common law. The article concludes with a consideration of whether, from the perspective of institutional competency, the Congress or judiciary are in a better position to circumscribe duty in a way faithful to the demands of tort law.

Keywords: duty, torts, negligence, airline, terrorism, liability

JEL Classification: K13

Suggested Citation

Sebok, Anthony J., What's Law Got to Do with it? Designing Compensation Schemes in the Shadow of the Tort System. Brooklyn Law School, Public Law Research Paper No. 3, Available at SSRN: https://ssrn.com/abstract=508744

Anthony J. Sebok (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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