BY TAREAH IKHARO
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In his own words, “bad things happen to good people everyday.” It is only in special cases, however, when faced with a tragedy that leaves an indelible mark on the United States and its citizenry, that Kenneth Feinberg is called upon to decide how best to compensate victims.
On November 3, 2010, Feinberg lectured to a packed house of professors, students, and community members at Harvard Law School as part of its Views from Washington series. Introduced by Dean Martha Minow as “the master of problem solving,” Feinberg launched immediately into a discussion of his role as Special Master in charge of compensating victims of some of the country’s greatest public policy crises in recent times, including the Virginia Tech shootings, the September 11 terrorist attacks and, most recently, the BP gulf oil spill. His distinct Boston accent and oratory skill on full display, the reluctant “pay czar” described his methods of approaching national crises, why his strategies have been successful in different situations, and why mastery, creativity, and flexibility have proven key ingredients to career success.
Sometimes the conventional way of resolving a dispute in the courtroom does not or cannot work, said Feinberg. In such situations, as after September 11, dispute resolution and mediation may prove more useful tools.
“The sheer volume of claims [that would arise as a result of a monumental tragedy] makes the legal system inefficient, which is a terrible label to put on the system,” said Feinberg.
Instead, dispute resolution and managed funds help remove pressure from the system and provide compensation for victims of national tragedies. The decision to establish a fund for the families of September 11 victims, for example, was “a very unique response to an unprecedented event,” said Feinberg, one he believes is rivaled only by World War II, the bombing of Pearl Harbor, and the assassination of President Kennedy in terms of national significance. The decision to introduce compensation as an option for victims depends greatly on how a tragedy impacted the country as a whole, Feinberg explained, rather than on how it is perceived by individual victims.
Feinberg addressed also his own attitude towards his work, and his methods of mediating some of the country’s most prominent crises. “You’ve got to love what you do, and you’ve got to believe that you are doing something in the public good,” he said.
One attendee posited that the key to Feinberg’s success at getting individuals to join victims’ funds rather than pursuing lawsuits was in his bedside manner. Feinberg agreed wholeheartedly.
“I would’ve been better off with a divinity degree, or a psychology degree,” he joked, explaining that success in his line of work depends on his ability to effectively and compassionately appreciate the emotional component of individual cases and to step beyond his formal role as an attorney. Feinberg graduated from New York University Law School in 1970 and is an adjunct professor at various law schools in addition to his role administering compensation funds.
Audience members got the opportunity to push back on many of Feinberg’s assertions. One man inquired about the arbitrariness of placing a value on lost lives and, in a sense, playing god. After all, Feinberg’s task is, in part, to determine which lives deserve compensation and how much each life is worth. Feinberg explained that judges and juries around the country, in deciding how to compensate the negligent death of a banker versus that of a busboy, valuate lives similarly every day.
“I am judge and jury structurally,” he noted, “but nothing illogically.”