It does seem ironic that corporations, which I would guess might have less of a desire to be heard than individuals, get their disputes resolved through arbitration — a forum that gives the opportunity to be heard – while many individuals get a computer. Given the efficiency concerns, though, perhaps this is unavoidable?

I wonder, too, how this relates to Udi Eiran’s opening comments about identity. He argued that the use of earnings capacity by the 9/11 compensation fund as the metric for compensation reveals the socially constructed value placed on earnings capacity over, say, number of lives saved. One could say something similar about the UN compensation commission – if I understand it correctly, the higher the monetary value of the claim, the more arbitration-like your compensation determination would be. Larger claims might be more complex and less amenable to computer projections. Still, does this system say something about the social value placed on individual claims versus corporate claims, for example? Or the claims of wealthy individuals versus poorer individuals?

(1) The UN Compensation Commission — One of the things I liked about the system was how it utilized different fact-finding processes for different types of claims. Using different combinations of computer programs, models, arbitrators and judges for different situations seemed like a successful way to strike a balance between efficiency and accuracy in the fact-finding process. What is less certain from Mr. McGovern’s summary, however, is what other goals of DSD are achieved through the different treatments of different classes of claims. Based upon Mr. McGovern’s summary and the UN’s web site (http://www2.unog.ch/uncc/), it seems that all small claims are treated perfunctorily, which is good for efficiency, but it may not increase satisfaction of the stakeholders who have lost loved ones. The idea of a computer program noting, “Yes, you lost a loved one, okay here’s your check” might seem a little course, and not help heal those who were injured.

(2) The precedential value of the 9/11 Victim Compensation Fund — It does seem like the question of precedent is a very interesting one surrounding the 9/11 Commission. As Prof. Bordone asked at the beginning of the panel, how can Mr. Feinberg know that the system won’t act as a precedent? Now, it may not act as a model, and it may in fact actually be held up as an example of what not to do in certain respects, but it will always be the backdrop for the discussion of how (and if) the next compensation fund should be designed. Kenneth Abraham wrote on this topic when he pointed out that certain novel aspects of the Fund (in particular how it both borrows from and rejects certain aspects of the tort system) were pushed into the spotlight because of the 9/11 fund. His paper was actually entitled “Genie and the Bottle” because his notion was that “the genie is now out of the bottle” and the 9/11 fund’s model will have to be considered in all future designs. Now, looking at what happened post-Katrina in 2005, it doesn’t look like this model has taken hold and become a revolutionary new model for compensating for loss of life in the US (at least not loss of life that won’t lead to a massive wave of litigation against the airline industry). This doesn’t look like a new kind of social insurance system. But what will happen with the next terrorist attack?

(3) Designing empirical studies to measure effectiveness of DSD — Mr. McGovern just said that he thinks the most useful thing that the academy could contribute to the field of DSD would be to do empirical studies testing the efficacy of dispute systems. I think this is probably even more important when it comes to funds like the 9/11 fund, which aren’t ongoing dispute systems, but systems designed to deal with a single issue. With ongoing systems, the systems can be evaluated and adjusted as time goes on. But here, that is not possible, so the only way to learn is through collective wisdom in the academy.

It also seems like he is referring to work just like Ms. Hadfield’s paper linked above (and just now mentioned during the panel), which does a great job illustrating some of the limitations of the fund.

http://works.bepress.com/cgi/viewcontent.cgi?article=1027&context=ghadfield

Using the example of adhesive employment arbitration, the common criticism is that it impoverishes the quality of precedent in the public justice system. To what extent do the speakers agree that the various examples they give of alternative systems have had this effect on public justice? Do we need to develop precedent in the context of these emerging new crises?