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In valuing different lives differently--the first part of the equation--the fund follows common legal practice. Courts always grant money on the basis of a person's earning power in life. That's because the courts are not attempting to replace "souls," says Philip Bobbitt, a law professor at the University of Texas who has written about the allocation of scarce resources in times of tragedy. "We're not trying to make you psychologically whole. Where we can calculate the loss is in economic loss." The Feinberg plan differs from legal norms in deducting the value of life insurance and pensions. Also, it allows no flexibility in determining noneconomic damages. In court, pain and suffering would be weighed individually.
Money aside, a lawsuit can be an investigative device like no other, forcing answers about what led to a death. Some Sept. 11 families say they might file suit for that reason alone, even if they never get a dime. And for other families, there is enormous value in no lawsuits at all. David Gordenstein lost his wife, Lisa Fenn Gordenstein, on American Flight 11. "Am I sad? I've had my heart torn out," he says. But he would rather devote his life to raising his two young daughters than pursuing a lawsuit. He will probably file a claim with the federal fund, which he acknowledges is not perfect. "I am proud of what my country tried to do. I think the intention is noble."
The night before Lisa died, she slipped a clipping under the door of David's home office, something she often did. It was a saying from theologian Charles Swindoll that read, "Attitude, to me, is more important than facts. It is more important than the past, than education, than money, than circumstances, than failures, than successes, than what other people think or say or do...It will make or break a company, a church, a home." David read it at her memorial. And while he jokes that it's kind of cliched--"typical Lisa"--he says he thinks its message might help carry his family through this.
--With reporting by Nadia Mustafa and Julie Rawe/New York and Karen Tumulty/Washington