Distinguished Visiting Lecturer Kenneth Feinberg addressed the Law School about mediation and alternative dispute resolution, emphasizing the kinds of cases he administers fall into two categories and often take an unseen emotional toll.
Feinberg has managed claims arising from the nation’s “darkest moments” and posing the problem of determining what a life is worth, said Dean Mark E. Brandon.
As the nation mourned, Feinberg administered funds for several tragedies, including the Virginia Tech University shootings, the Aurora, Colorado, movie theater shootings; the Sandy Hook Elementary School shootings; and the Boston Marathon bombing.
Feinberg also administered funds after Americans were harmed during the Sept. 11 terrorist attacks, the Gulf of Mexico oil spill in 2010 and the General Motors ignition switch failure that was linked to the deaths of 124 people.
“It is probably no exaggeration to say that Mr. Feinberg has become one of the most active and successful mediators, arbitrators, alternative dispute resolvers in the history of the world,” Brandon said during his introduction of Feinberg.
Feinberg used his lecture to draw a distinction between the Sept. 11 Victim Compensation Fund, the claims paid by British Petroleum for the Gulf of Mexico oil spill and those paid by General Motors. He said they are true alternatives to the American tort system, while he emphasized that other programs where Americans donated money, such as the funds paid to victims of the Boston Marathon bombings, are gifts because they do not limit the possibility of future lawsuits.
He noted that more than $61 million was raised in 60 days for the victims of the Boston Marathon bombings.
“One thing you learn in what I do: Never underestimate the charitable impulse of the American people,” he said. “It is astounding how much money comes in, solicited or otherwise, to help fund private programs.”
In the cases of 9/11, the Gulf of Mexico oil spill, and the failure of the General Motors ignition switch, some may view those funds as alternatives to the tort system, but Feinberg said that is incorrect. Instead, he called them alternatives to tort litigation, what he referred to as a first cousin of tort system.
When deciding how much to pay a victim in cases such as 9/11, GM or the Gulf of Mexico oil spill, the systems that he oversaw paid victims for economic losses, but did not individualize payments due to pain and suffering or emotional distress.
“I don’t do that. How would anybody do that?” he asked.
But claims do take into consideration whether there was a death, the number of dependents and the spouse, making the awards different from person to person. Sometimes claims are adjusted when they are either too high or too low, he said.
By contrast, when the public provides charitable donations, every person who files a claim for that program receives the same amount of money. This was the case for funds administered for the Virginia Tech University shootings.
“All lives are equal because it’s not joined at the hip of the tort system,” Feinberg said.
Feinberg, who received his J.D. from New York University School of Law in 1970, said he is often asked whether his law degree helps him administer funds.
“My law degree in all of these programs is largely a wash. It doesn’t help very much, although I took torts,” he said. “A divinity degree would be better, or a degree in psychiatry. You are dealing with very, very vulnerable people who are the innocent victims of life’s misfortune.”
He has heard countless stories: the story of the widow who lost her husband during the Sept. 11 attacks who had only 10 weeks to live and needed her claim processed within 30 days so that she could make sure her children would be provided for after her death, the man who lost his leg during the Boston Marathon bombing and didn’t want the money but rather wanted his leg back, and the widow whose husband saved the lives of others during the Sept. 11 attacks only to be killed by a man who jumped from 103rd floor.
Feinberg said listening to the stories is an essential part of what he does. It is part of the right to be heard in confidence, but that listening to such stories “becomes very debilitating.”
The nation came to the rescue of thousands of Americans who were hurt or killed during the Sept. 11 attacks, but Feinberg doesn’t think the nation will ever rally to help in quite the same way.
“I spend a fair amount of my time defending the 9/11 victim fund as sound public policy. It was the right thing to do. Don’t ever do it again. Bad things happen to good people every day in this country, and there is no 9/11 fund.”
