JAMS ADR Blog by Chris Poole
Mass disasters are mercifully rare. However, when one occurs, many lives are altered in one stroke. These tragedies call for special care and expertise in determining whether and how anyone involved will be compensated. Fortunately Kenneth Feinberg has the special talent to deal with these crises and has also written a book describing the inner workings of his professional life, titled, Who Gets What.
In WGW, Feinberg details his involvement in five enormous crises.
The first chapter—titled, “The Professor, the Judge, the Lawyer, and the Senator—is an extended thank-you card to Feinberg’s great mentors: law professor Robert Pitofsky, the Honorable Jack Weinstein, now-U.S. Supreme Court Justice Stephen Breyer and the late U.S. Senator Ted Kennedy. Feinberg describes the debt he owes to each of these men, and following Kennedy’s advice about the “advantages of sharing credit with others,” he begins by thanking the mentors who made his career possible.
In Chapter Two, “Agent Orange,” Feinberg discusses how between two and three million soldiers and eight to 10 million family members were implicated in litigation over consequences stemming from the use of Agent Orange. Traditional tort law would require calculations of causation and damage that were impractical in this case. After extensive rounds of conversations with the vets, Feinberg proposed that only claimants who had illnesses—not injuries—associated with Agent Orange would be compensated and that approximately one-quarter of the money be dedicated to a fund that would be used for advocacy, insurance and other social services for anyone affected by Agent Orange.
Chapter Three, “The September 11th Victim Compensation Fund,” is full of heart-rending quotes from surviving family members and details of insider discussions with government players desperately trying to prevent the airlines from being sued into bankruptcy. More than $7 billion was distributed to more than 5,500 claimants.
Chapter Four, “The Hokie Spirit Memorial Fund,” involves a much smaller amount of money and a smaller pool of affected parties, but the massacre on the Virginia Tech campus affected college students and their families everywhere. Feinberg describes all the complexities of determining whether nightmares caused by seeing the events are as compensation-worthy as physical injuries that came from being wounded.
Chapter Five, “Paying Wall Street Executives,” and Chapter Six, “Oil Spill in the Gulf of Mexico” are equally compelling in ways that are simultaneously intellectual, political and profoundly personal.
Feinberg takes a first-person approach to his writing, and the reader is given an inside account of the people, ideas and arguments at the core of each of these complex issues of compensation. The book provides a terrific narrative of some of America’s hardest-to-solve problems and an even deeper insight into the mind of the man who brought resolution to each of them. We highly recommend it.
The article was originally published in The Conversation on 31 July 2020, available here, and subsequently picked up by the Otago Times on 3 August 2020, available here. The Australian Competition and...By Rob Nicholls