Kenneth R. Feinberg is best known for the work that he did as the special master of the federal September 11th Victim Compensation Fund, which was established by Congress to distribute billions of taxpayer dollars to those who were either injured or lost loved ones during the terrorist attacks. Feinberg went on to preside over the Hokie Spirit Memorial Fund (for victims of the Virginia Tech shootings) as well as funds set up to compensate victims of the BP oil spill; the Aurora, Colorado, shootings; and the Boston Marathon bombings. Feinberg insists that these funds were established to address unique situations. But at a time when class action litigation is on the wane, such programs are increasingly being touted as a viable alternative to mass tort litigation. In January, Feinberg spoke with UC Hastings law professor Evan Lee in Washington, D.C. Here are edited excerpts from that videotaped discussion.
Q: In your book, What Is Life Worth?, you say that for the people who were compensated by the 9/11 fund it was less about the money than it was about catharsis. Did that surprise you?
Yes. I thought it would be all about the money. But as it turned out, money was rarely the issue. Instead, it was more about people wanting the opportunity to be heard-and to validate the goodness of lost loved ones. In the hundreds of public and private meetings that I held with family members, people invariably took advantage of that opportunity. I also learned, much to my disappointment, that grief can sometimes paralyze people. There was a woman in her seventies, maybe even 80, who was so overcome by grief after she lost her son at the World Trade Center that she could not fill out an application that would probably have provided her with a tax-free award of more than $2 million. She just couldn't do it. And I tried everything, including visiting her at her home. "Take the money," I told her. "Don't let the terrorists win." But she just stared at me blankly, and then in a robotic tone told me to go away. "Thank you for coming, Mr. Feinberg," she said, "but no amount of money can replace my son." She never did file.
When Congress passed its 9/11 legislation, victim compensation was something of an afterthought. The main purpose of the statute was to protect the airlines from bankruptcy. With the benefit of hindsight, do you think that the legislation should have been drafted differently?
If we had it to do over again, I would have advised Congress not to ask the administrator-i.e., me-to calculate different individual amounts for every single claimant. In other words, instead of everybody getting a different amount, I would say if you lost a loved one you get X; if you were physically injured you get Y. That way you wouldn't be pitting the people who you're trying to help against each other.
But one of the cardinal principles of tort law is that you compensate people with different earnings potential for their expected losses.
You're absolutely right, Professor. The 9/11 Victim Compensation Fund by statute was joined at the hip to the tort system. But the great bulk of the programs I've since been involved in-the One Fund Boston; the Hokie Spirit Memorial Fund; the Aurora, Colorado, movie shooting-were not cousins of the tort system. Those programs, as difficult as they were, were much easier to manage and administer than the 9/11 fund.
You talk constantly about the uniqueness of these compensation funds and say that therefore they do not serve as precedents. However, I must say I do see a bit of a disconnect. These programs may not be precedents in the strict legal sense, but aren't they providing us with models that are in fact being increasingly replicated?
Well, let me parse your comments, which are very well taken. The 9/11 Victim Compensation Fund is obviously a precedent for nothing. I know of no [other previous] program, funded by the taxpayer, to compensate the victims of an attack. So the 9/11 fund is best studied, I think, not in a law school but in an American history class. The BP fund was also rather unique. There you had an alleged would-be tortfeasor fronting $20 billion three or four weeks after a tragedy and just saying, "Here, go spend it. We'll worry later on about getting contributions from codefendants." That's not likely to happen again. However, I do think you're right that as unique as these programs are, they do encourage us in a general sense to think outside the box when it comes to compensating victims more efficiently and effectively in the wake of these massive tragedies-both natural and man-made. And that, I think, is a worthwhile public-policy discussion to have.
That doesn't make you a likely candidate for the Trial Lawyers' Hall of Fame, does it?
No, but I must say that without the trial lawyers' help, there wouldn't have been a successful 9/11 fund. Secondly, if you think that there is ever going to be a substitute for the traditional legal tort system in this country, I think you are vastly overestimating the applicability of these creative alternatives.
Looking back, do you have any regrets?
I regret that, during the first six months of the 9/11 program, I presented myself in a much too legalistic, businesslike manner. I thought initially that this program would benefit from an objective, antiseptic approach to claims. But what I learned is that what drives the interests of claimants in a program like this is emotion.
In law school, don't we teach you to keep your guard up and to never show your cards?
My law degree served me very, very well when it came to designing a compensation program that would survive legal challenge. But once that work was done, my law degree was at best a wash. I would have been much better off administering the program if I had a degree in psychiatry-or divinity.
To view the full video visit our Legally Speaking page.