Robin Effron Discusses Lessons from the September 11th Litigation

Although the tragedy of September 11th is already more than six years in the past, litigation of claims arising out of that event continues, with some of the cases still at the beginning phases. In a recent paper posted to SSRN, Bigelow Teaching Fellow and Lecturer in Law Robin Effron focuses on the continuing problems facing the judge and litigants in these cases, and argues that many of those difficulties are a result of the Air Transportation Safety and Systems Stabilization Act which gave the Southern District of New York exclusive jurisdiction over all cases arising out of the events of September 11th, and created a cap on damages limiting recovery to the total amount of available liability insurance. 

The abstract is below, and the full paper is here.

Event Jurisdiction and Protective Coordination: Lessons from the September 11th Litigation

ROBIN EFFRON
University of Chicago - Law School
Southern California Law Review, Vol. 81, No. 2, 2008

Abstract:    
Shortly after the tragic events of September 11, 2001, Congress passed the Air Transportation Safety and System Stabilization Act (ATSSSA). The September 11th Victim Compensation Fund (VCF) was the centerpiece of the statute and provided a source of no-fault compensation to the tragedy's victims and victims' families. The ATSSSA also allowed victims to elect to pursue traditional litigation instead.

The ATSSSA contains three jurisdictional features that have shaped the path of the litigation. The Act created a federal cause of action “for damages arising out of” the terrorist related aircraft crashes; it gave the Southern District of New York original and exclusive jurisdiction over all actions “resulting from or relating to the terrorist-related aircraft crashes.” Finally, it implemented a liability cap by limiting recovery in all actions to the defendants' available liability insurance. These jurisdictional aspects of the “traditional” litigation option under the ATSSSA contain unusual and practically unprecedented elements, yet they have received almost no scholarly attention. This Article attempts to fill that gap by telling the story of the course of the September 11th litigation, tracking the challenges and issues that have arisen as a result of the ATSSSA coordination mandate, and exploring the relationship between federalization of forum and aggregation of claims.

The jurisdictional puzzles seen in the September 11th litigation call for two new labels. “Event jurisdiction” refers to Congress's choice to give the federal courts subject matter jurisdiction over an “event” of perceived national importance, rather than locating subject matter jurisdiction over a certain class of cases or type of claim. The second phenomenon deserves the label “protective coordination” because, like protective jurisdiction, it evinces a congressional desire to protect certain real or perceived federal interests by manipulating the shape and direction of certain classes of lawsuits. The Article concludes by suggesting how Congress might better evaluate post-disaster litigation legislation in the future.