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The old man looked deep into him. "Mr. Feinberg, I have some advice,"
December 29, 2013 8:37 AM   Subscribe

But really, Feinberg picked up the phone that day for the same reason Americans yield to their instinct to give money to those felled by spectacularly unkind fates: He felt helpless but wanted to help, and his version of helping was to volunteer for one of the worst jobs in the world. Hagel placed a call to Attorney General John Ashcroft, and after a series of backroom discussions, Ashcroft appointed Feinberg the special master of the September 11th Victim Compensation Fund, working pro bono, as he almost always does on behalf of the dead. That work and the work that has followed it, his growing collection of aftermaths, have changed him. He has become smarter, humbler, more acute, more uniquely fitted to his task. Virginia Tech, the Deepwater Horizon, Newtown, Boston—he managed each of those horrors, and each was managed better because of what he has learned. But all of them were shaped, because he was shaped, by September 11.
Kenneth Feinberg: The Nation's Leading Expert in Picking up the Pieces

What I've Learned: Kenneth Feinberg - "A DC lawyer was asked to put a price on each of the thousands of lives lost in two of America’s greatest tragedies. Here’s how he did it—and the lessons he came away with."
Meet Kenneth Feinberg, The Man Who Puts A Price On Pain
NYU Law: A Chat With Kenneth Feinberg
How Much Is A Life Worth?
Special Master at the Cornell Legal Information Institute

Kenneth Feinberg ran the 9/11 Fund (Final Report of the Special Master [PDF]), BP Oil Spill, The VT shooting fund, was appointed to review executive pay on Wall Street, was hired by Penn State to manage the claims after the Sandusky molestation trial, ran the Sandy Hook Elementary victim's fund, and One Fund Boston.


Feinberg has spoken at the Cooley Law School and the Moritz College of Law
posted by the man of twists and turns (28 comments total) 24 users marked this as a favorite

 
I have yet to plow through TFA, but from this, the guy sounds like a real mensch. More selfless, caring, dedicated people running countries please thanks.
posted by feckless fecal fear mongering at 8:41 AM on December 29, 2013 [2 favorites]


Man, talk about jobs that I wouldn't want, no matter how much it pays. Also, I can't remember reading "dead-nuts" used as an adjective before.
posted by Halloween Jack at 8:53 AM on December 29, 2013 [1 favorite]


Yeah, a real mensch seems like the perfect description. And how fitting that he rarely accepts compensation for it. Such a nice change.
posted by nevercalm at 9:03 AM on December 29, 2013


He did an interview on Fresh Air awhile ago... interesting guy.
posted by ph00dz at 9:33 AM on December 29, 2013


Interesting article. Well written too.
posted by Tell Me No Lies at 9:39 AM on December 29, 2013 [1 favorite]


There are two sides to every story. Then there is a reality which incompasses both of them.

The other side of the story:

The Case Against Kenneth Feinberg

posted by dragonsi55 at 10:26 AM on December 29, 2013 [2 favorites]


Yeah, a real mensch seems like the perfect description.

This "mensch" is the guy who decided that the family of a janitor who died at the World Trade Center would get $250,000 of government money while the family of a stockbroker would get $7 million of government money.
posted by JackFlash at 12:16 PM on December 29, 2013 [2 favorites]


dragonsi55, in most cases, victims accept the settlement offered rather than pursue their own cases; in only a few cases are they actually barred involuntarily from suing.

JackFlash, I see your point in that a life is a life, but one could just as easily say that an individual life is invaluable and outside any reasonable compensation. If two persons have wildly differing future earnings potential I see that as a large problem of social inequality and not something that it's the responsibility of any given party to a lawsuit to solve for us (them). This question, what is the value of a life?, really is ineffable and I can only admire Feinberg for attempt to address a question that goes beyond humanity with his mere human prowess.
posted by dhartung at 12:31 PM on December 29, 2013 [1 favorite]


This "mensch" is the guy who decided that the family of a janitor who died at the World Trade Center would get $250,000 of government money while the family of a stockbroker would get $7 million of government money.

If both families were at risk of losing their family possessions, and $250k protected the janitor's family while $7M protected the stockbroker's, an argument can be made that this was maximally positive, minimally negative use of limited resources.

I don't care how fucking wealthy you are, if the only breadwinner (your husband, the father of your children) dies, and someone shows up at the door saying you are in debt for the value of your house... that's a helluva pile-on.
posted by IAmBroom at 1:25 PM on December 29, 2013 [2 favorites]


JackFlash, did you not read the article, or did you just skip this line?

Congress had mandated that Feinberg factor projected future earnings into each settlement, a standard practice in mass torts—but in effect making some people worth more than others
posted by the agents of KAOS at 1:27 PM on December 29, 2013 [2 favorites]


Congress had mandated that Feinberg factor projected future earnings into each settlement, a standard practice in mass torts—but in effect making some people worth more than others

You can read the law yourself. Here is the full extent of the law on determining compensation:

The Special Master shall review a claim
submitted under subsection (a) and determine--
(A) whether the claimant is an eligible individual
under subsection (c);
(B) with respect to a claimant determined to be an
eligible individual--
(i) the extent of the harm to the claimant,
including any economic and noneconomic losses; and
(ii) the amount of compensation to which the
claimant is entitled based on the harm to the
claimant, the facts of the claim, and the
individual circumstances of the claimant.

This gives the Special Master wide latitude for interpretation. He chose to interpret it in the narrowest possible manner.

The idea of the compensation fund was to buy off claimants in order to prevent thousands of private lawsuits against private insurance companies, airlines, employers, etc. It was protection for private companies. The rich people were expensive to buy off because they could afford expensive attorneys. The janitors -- less so.
posted by JackFlash at 2:15 PM on December 29, 2013 [1 favorite]


It is impossible to calculate a human being's future earning potential with anything more precise than financial voodoo (especially these days, when paupers and billionaires can be made in minutes). There should absolutely be no discrimination in the law based on income level, though I know that's going to be a hugely controversial position. But the status quo effectively denies equal protection under the law based on personal wealth.
posted by saulgoodman at 2:42 PM on December 29, 2013 [1 favorite]


Ken Feinberg spoke to a torts class I taught in 2002. He was humble and reflective about his task, and emphasized just how singular the 9/11 Victims Compensation Act was: the law did not even provide for a budget or appropriations. Feinberg's awards would be drawn directly from the Treasury, just like that. Pretty astonishing.

For his views on different amounts vs. same for all, check out his report at the rather generic url of http://www.justice.gov/final_report.pdf beginning at p. 80. Feinberg indeed believed that the statute required him to pay out different amounts, in part, as JackFlash says, because both he and Congress were measuring success of the Fund through how many private lawsuits it would avert. And it averted nearly all of them; what was left were firms (rather than people) suing. (I think Cantor Fitzgerald, which lost over 300 employees, just settled with American Airlines and is still seeking to go after Saudi Arabia.) In his report Feinberg says that equal amounts for all would be a "better approach," though "not without controversy." (And p. 30 onward explains how he calculated various amounts; once he was basing it on actual economic loss, he tended to construe the inevitable ambiguities in favor of an increased individual award.)

A question remains why tort damages in general value lives according to demonstrated income potential. The basic answer -- apart from that's how the English did it -- is that tort damages are meant to approximate (however inartfully) making someone injured "whole" again, in particular economically. If someone is liable for a pothole that damages a car, the driver is entitled to have the car fixed. A Porsche owner will likely collect more damages from the pothole-maker than a Pontiac owner. Personal pain and suffering isn't meant to track one's station, but anything depriving someone of his or her income is. I imagine any equality here would end up simply capping upper end damages, rather than setting a floor for the poor, as happens with workers' compensation, another system meant to substitute for lawsuits when accidents happen in the workplace. (Many plaintiffs would certainly like to opt out and pursue a suit instead, since the cookie-cutter damages are typically low.)

As one plaintiff's lawyer put it: tort law is meant to be compensatory, not redistributive. If you want to be redistributive, there are policy levers to pull for that (like progressive taxation) independent of the tort system, one that don't rely on accidents (or worse) as the point of intervention.
posted by zittrain at 6:15 PM on December 29, 2013 [8 favorites]


The idea of the compensation fund was to buy off claimants

Given the number of people who voluntarily accepted the terms, it seems a bit strange to be so critical. Just as there is no moral law saying what Feinberg should decide each person owes, neither are they owed whatever imaginary figure you might say that they could have gotten with a lawsuit.

It's really sort of weird -- conservatives like punitive justice for individuals, but dislike it in the civil tort world (all that tort reform nonsense). Liberals seem to go the opposite direction and desire the outcome of any tort to be punitive, when our system is as zittrain describes fundamentally compensatory in nature. Certainly the popular view of cases like the infamous Stella Liebeck v. McDonald's is that it's a kind of unfair lottery where if you have a claim you get to win big (never mind the actual facts of the case, the popular imagination is seized on the initial jury award) -- and this applies to quite a few of various groups of Americans who fall decidedly on the lower end of the inequality teeter-totter, that it's a chance to balance the thing.

But really, there is no one moral value that can be placed on a life, only what will "buy off" a victim where they feel they have received due compensation worth the effort and risk factors involved, because it's a pricing mechanism.

You're saying, oh, they should have received more -- but how much more? This is the price you, who are not a victim, are demanding. The victims themselves were by dint of accepting the settlement (or compensation fund monies) satisfied under the law.
posted by dhartung at 12:42 AM on December 30, 2013 [1 favorite]


It's really sort of weird -- conservatives like punitive justice for individuals, but dislike it in the civil tort world (all that tort reform nonsense). Liberals seem to go the opposite direction and desire the outcome of any tort to be punitive, when our system is as zittrain describes fundamentally compensatory in nature.

Speaking as a liberal, I think it's more about individuals vs institutions. Obviously, not all tort cases are against large corporations, but it's frustrating when corporations can do real harm to people and simply pay a fee as a cost of doing business. In certain cases, we'd like it if civil action could be corrective as well, and actually make corporate malfeasance unprofitable.
posted by heathkit at 9:07 AM on December 30, 2013


The victims themselves were by dint of accepting the settlement (or compensation fund monies) satisfied under the law.


This is absolute bullshit. This is the same sort of reasoning that says that a worker who accepts a minimum wage non-union job is satisfied. As if they had a choice.

The stockbroker's family has $1000 an hour white shoe lawyers on their side fighting for them. If they didn't get what they wanted they could threaten to sue the airlines directly. The janitor's family has a simply choice -- take or leave it -- as they always do. If that is what you call satisfaction, I just don't know what to say.

A special master has extraordinary authority and discretionary power. That is why lawyers greatly fear them in most cases, because they are completely out of their control or influence in swinging a case. So Feinberg had the opportunity to do something great. Feinberg could have made a more equitable distribution, but he took the coward's way out, the way that would cost him the least amount of grief from the powerful. He could have given $2 million to each of the claimants, a substantial sum for anyone, but instead he reasoned that the high powered lawyers would give him untold grief if he didn't give a small sum to the little people and a huge sum to the powerful. $250,000 for the janitor and $7 million for the stockbroker, that was his choice.

These are the same stockbrokers who destroyed the economy in 2008, put millions out of work, and destroyed families. These are the same stockbrokers who make their livings by skimming off money from widows and orphans. These are the same stockbrokers who demanded that taxpayers make good on their multi-million dollar bonuses even as they failed. These people can never lose, even after they are dead.

At least the janitor performs a useful service for society. The stockbroker does not. He's simply a casino dealer that rakes off a percentage. This doesn't mean the stockbroker's family deserves less, but they certainly deserve no more.

This isn't life insurance. This a compensation fund paid for by taxpayers. As hideous as the civil laws are regarding valuation of human life, there is no reason that the special master had to follow those same traditional rules, stacked in favor of the rich and powerful. That is the coward's path, the easy choice, and that is the path chosen by Feinberg.

And don't forget the most important client that Feinberg had, the airlines. The entire purpose of the fund was to save the airlines and protect them from lawsuits by the $1000 an hour attorneys for the rich. Feinberg chose the easiest way to satisfy his most important client, the airlines. That meant buying off the rich and powerful at whatever cost necessary. After all, it was just taxpayer money. The same money that Wall Street demanded when things went bad in 2008. Remember this one rule -- the rich and powerful can never fail and they can never suffer.

This is truly sad. Progressives do not stand a chance when people so willingly buy into the system that creates and perpetuates inequality.
posted by JackFlash at 9:27 AM on December 30, 2013 [1 favorite]


Poorer injured parties are already less likely to sue due to the disproportionate potential financial burden of legal action relative to their wealth and other cultural factors (like the double standard we have that tends to view lower income earners seeking damages as litigious and parasitic while wealthier and larger institutional claimants are seen positively as looking out for their best financial interests).

Fundamentally, the more our law relies on the court system to protect individual rights, the less fair our system becomes in the current economic reality.

The very fact that congress' stated goal was to minimize the number of lawsuits rather than to unconditionally ensure the welfare of anyone damaged creates a perverse incentive to under-compensate less legally powerful claimants.

I wouldn't pin much of the blame on Feinberg, personally, because he's just muddling along like anyone else would in his place (and I don't feel qualified to judge how well). But the deeper issues with how our court systems systematically favor wealthier claimants really need to be addressed if we ever expect to have anything approaching an equitable, truly fair system of law in the US.
posted by saulgoodman at 10:51 AM on December 30, 2013


I'm not sure it was the government's business to unconditionally ensure the welfare of anyone damaged. That's what life insurance is for.

In fact a lot (all?) of the money that has come into the coffers for other tragedies has come from private sources. Certainly that was the case at Sandy Hook.

The airline industry on the other hand is perpetually teetering (and sometimes more than teetering) on the edge of bankruptcy and for it to collapse would have been a serious blow to the U.S. as a whole. The airlines are not too big to fail, but as a whole the industry is too important to fail. Keeping them solvent is something the entire population has a stake in.

So I'm thinking the government actually protected my interests fairly well by protecting the airlines. That fact that they also provided post facto insurance to a lot of grieving people was a nice side effect.

(although I have to admit the incredible disparity between the average $2 million dollar 9/11 payout and the $100,000 payout for a dead soldier still irks me. You get twenty times more because you didn't put yourself in harm's way?)
posted by Tell Me No Lies at 12:47 PM on December 30, 2013


I'm not sure it was the government's business to unconditionally ensure the welfare of anyone damaged. That's what life insurance is for.

The government's explicit charge is to provide equal protection for all comers under the law. As long as mounting a good legal case is an expensive and risky proposition, it fails to provide that.
posted by saulgoodman at 1:15 PM on December 30, 2013


The government's explicit charge is to provide equal protection for all comers under the law. As long as mounting a good legal case is an expensive and risky proposition, it fails to provide that.

While this is a good point it does seem like more of a general problem than one specific to 9/11, etc.
posted by Tell Me No Lies at 6:56 PM on December 30, 2013


That's a fair point.
posted by saulgoodman at 7:45 PM on December 30, 2013


I'm not sure it was the government's business to unconditionally ensure the welfare of anyone damaged. That's what life insurance is for.

This may come as a surprise, but not everybody can afford life insurance.
posted by feckless fecal fear mongering at 5:56 AM on December 31, 2013


And, on postview, when the event in question is the result of almost deliberate governmental mismanaging and incompetence, yeah, you bet your ass it's the government's job to provide some sort of restitution.

Actually wait no, it is the government's business to unconditionally ensure the welfare of all. That's pretty explicitly exactly what governments are for, and in fact the preamble to your constitution includes the words 'promote the general welfare.'
posted by feckless fecal fear mongering at 5:58 AM on December 31, 2013


That's a pretty huge step, from "promote the general welfare" to "unconditionally ensure the welfare".

Is the Chamber of Commerce now required to unconditionally ensure the success of all businesses, since it is formed to promote local business?
posted by IAmBroom at 7:46 AM on December 31, 2013


Is the Chamber of Commerce now required to unconditionally ensure the success of all businesses, since it is formed to promote local business?

That's a silly comparison.

Promoting the general welfare of the populace does require a point at which it becomes unconditional, yes. You live here = you are unconditionally entitled to certain things aimed at promoting your welfare.

That's how society works.

And, again, to this particular example: 9/11 happened pretty directly due to governmental incompetence. I am at a loss to understand how the government (I mean ideally the actual incompetent people involved but I guess that's a can of worms that could be used for evil) is therefore not responsible for making the injured parties whole.
posted by feckless fecal fear mongering at 8:03 AM on December 31, 2013


This may come as a surprise, but not everybody can afford life insurance

I didn't say it was fair. But people die all the time without the government lifting a finger to make them whole, which is why we have life insurance.
posted by Tell Me No Lies at 8:23 AM on December 31, 2013


How often is the government directly and substantively responsible (via incompetence, this isn't some truther bullshit) for the deaths of thousands?
posted by feckless fecal fear mongering at 9:08 AM on December 31, 2013


But people die all the time without the government lifting a finger to make them whole, which is why we have life insurance.

But these were stockbrokers, for god's sake.

The families of those who died in the Oklahoma bombing, nada. But they where *shudder* just government workers.
posted by JackFlash at 10:28 AM on December 31, 2013


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