In the heat of sorrow after Sept. 11, Congress easily created a $6 billion fund for surviving victims and victims' families. This is enough to provide the average family with almost $2 million. But the World Trade Center was attacked once before, in 1993, and there was no such fund. Those victims and families want in now. So do those injured or bereaved by other terrorist episodes, such as the 1995 bombing of the federal building in Oklahoma City. And families of soldiers killed in Afghanistan ask: If families of police and firefighters who died answering the call of duty on Sept. 11 qualify for a share of this fund, why not those who died answering the call of duty afterward?
These are all good questions, and there is no good answer. One bad, though accurate, answer is that this fund is a back-door taxpayer bailout of the airlines, because recipients must give up their right to sue. Another bad answer is, well, you've got to draw the line somewhere. Even the one line everybody seems to accept—that this is for fallen soldiers of the war on terrorism in which we all have a stake—makes no sense. The victims of 9/11 weren't fighters against terrorism. The war on terrorism began after—and because—they died.
Why must you draw the line somewhere? The real reason we want to help those whose lives were crushed on Sept. 11 is more like simple human sympathy and shared grief. But in that case, what about victims of non-terrorist bad guys, or of no one in particular?
Hold that thought. Because the 9/11 fund illustrates a common flaw in the American sense of justice. We are too concerned about justice in specific situations and not concerned enough about justice in general. That makes justice highly arbitrary and dependent more on publicity than on morally relevant factors. If the World Trade Center falls on you because of an astonishing plot by a comic-book villain, we give you (or your survivors) a couple million dollars. But if your house falls on you when no one is looking, through nobody's fault including your own, we do not even guarantee you basic medical care.
This cramped sense of justice helps to explain one of the anomalies of American politics: the liaison between trial lawyers and the Democratic Party. This is often portrayed as a marriage de convenance between an underloved interest group and an underfunded political apparatus, and it is that in part. But the trial lawyers are also delivering daily, via lawsuits, the only kind of social justice that's easy to deliver in this country, while the Democrats, via legislation, have difficulty delivering anything at all.
The Republicans are mostly right and the Democrats are mostly wrong about trial lawyers. Lawsuits really are a costly, inefficient, arbitrary, and often counterproductive way to deliver justice. In a recent study, the libertarian CATO Institute figures (with slightly suspect exactitude) that tort litigation costs the country $91.5 billion a year in lawyers' fees alone.
But the Republican complaints gloss over the fact that most lawsuits, including some of the most absurd ones, do deliver justice of a sort. There are exceptions: If the vegetarians currently suing McDonald's for covertly using beef extract in its fries manage to get their palms greased, that will be a parody of justice. But if, say, a smart lawyer managed to smoke $2 million out of McDonald's for a 9/11 widow—plus another million for his own contingency fee—by persuading a jury that eating Chicken McNuggets fueled the terrorists' hatred of America—that would be a parody of justice but not unjust. Would you voluntarily exchange your beloved spouse for a $2 million check? If your answer is yes, just ignore the next point. If your answer is no, then the widow is still undercompensated for her loss (and McDonald's, although blameless, needs the $2 million less than she probably does).
What's missing from Republican attacks on lawyers and lawsuits is any desire to replace crazy, random social justice with sane social justice. Limits on patients' rights to sue their doctors, for example, would go nicely with a credible plan for universal health insurance. This says: Let's worry more about fixing everyone's bum knee and less about trying to salve a few bum knees with extra cash.
Our misplaced emphasis on justice in specific over justice in general encourages competitive victimhood, the poisonous game of American public life. Victimhood is your claim on the rest of society and it is the language in which you make that claim. (As opposed to citizenship in nations with fewer lawyers and more social insurance.) Victimhood is the story line favored by the media, which can distill it from almost any set of facts. It is the best way to inspire the opportunism of politicians. It is essential to lawsuits.
Sept. 11 represents the gold standard of victimhood—real, tragic, massive, shocking, impossible to stop thinking about. Even so, inevitably, Sept. 11 folks have felt obliged to organized to protect their interests. A spokesman for "Families of Sept. 11" told the Wall Street Journal that rival claimants "definitely" deserve compensation—just not from his group's fund. We're the victims around here, buddy—wanna make something of it?