A quick word first1
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Putting a price on that which is priceless
Three thousand people lost their lives twenty years ago when two planes slammed into the Twin Towers in New York, another hit the Pentagon, and a fourth crashed in Pennsylvania.
What was the value of those lost lives?
That question fell on the shoulders of Ken Feinberg, the special master of the September 11th Victim Compensation Fund. (I’ve met him several times since then, but do not know him well.) His story is told, in a somewhat fictionalized form, in the new Netflix’s film “Worth,” starring Michael Keaton.
The movie portrays Feinberg being aloof, perhaps officious, at the start of the process, but increasingly empathetic as the months wore on. Apparently that aspect is exaggerated to some extent,2 but there’s no doubt, that the role he filled and the challenges he faced were demanding and stressful.
Feinberg had been a law clerk, a federal prosecutor, and then chief of staff in Senator Ted Kennedy’s office. After that, he practiced law privately. In the mid 1980’s, a federal judge asked him to mediate a high-profile lawsuit brought by Vietnam veterans against chemical companies who had manufactured and marketed the toxic “Agent Orange.” As Michael Rosenwald reported in a Washington Post article earlier this week:
Feinberg had no training in mediation, but he did have a booming Boston voice and a natural ability to lean in very close to people and help them narrow their differences enough so that both sides thought they were agreeing to something that resembled something like fairness.
That work led to involvement in other high profile cases involving breast implants, heart values, and asbestos. When Feinberg learned that the government planned to appoint a special master to handle claims arising out of the September 11th attacks, he tapped his political connections on both sides of the aisle to get the position. Feinberg worked pro bono for thirty-three months.
The power of special masters
Mediators can try to persuade, enlighten, and cajole disputants to resolve a dispute, but they cannot force an outcome. By contrast, special masters, like judges, can declare who wins and how much they then receive.
They also have a lot of latitude. The size of awards for wrongful death claims varies case-to-case and jurisdiction-to-jurisdiction. Some states limit the amount can be awarded. Others don’t. The age of victim is one factor. The amount of his or her potential earnings is another. Survivors of a Wall Street financier and a hard-working waitress who die in the same accident may receive vastly different amounts. Those who most need money may get the least.
Moreover, the litigation coming out of the 9/11 disaster was far different from typical special master cases, however. There was no precedent and little in the way of applicable law. In many respects, Feinberg had to be judge, jury, and legislator all rolled into one.
When he was appointed 9/11 special master role, there was no limit on how much money he could disperse. Inevitably, some survivors harshly criticized Feinberg for being unsympathetic and distributing too little. There were unsuccessful attempts to remove him from his role. (The Worth movie portrays how one of his harshest critics ultimately came to support him.) In the end, Feinberg and his colleagues distributed more that $7 billion to 5,562 people.
All of that played out in public. What was not seen was how Feinberg was affected emotionally by his meetings with hundreds of distraught family members and others who were horribly injured. He told the Post’s Michael Rosenfield:
“You cry in private, never professionally in front of the families. And then you’re up all night. What do we do with this one? What about this? What about them? And it’s just debilitating.”
Feinberg says of himself that over his nearly three years as special master, he evolved from a by-the-books attorney to being, “a rabbi and a priest and a nun.” Since then, he has taken on that role after other tragedies, including the shootings at Virginia Tech, Sandy Hook, and Aurora, Colorado.
In all of them he has been tasked with doing the impossible, putting a price on lives that are priceless. “It’s not justice,” he says. “It’s not fairness. It can’t be fairness. It’s mercy.”
Housekeeping
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Here’s the link for Feinberg book’s, “What is Life Worth.”
See Mathew Dessem’s article, “What is Fact and What’s Fiction in Worth”, in Slate.
Maybe less a negotiation than a “Moral Leader” question… but you mention the $7B dispersed to the 5K+ families.
The question is … was that really enough? And by trying to measure the actual damages did this go down the exact wrong path?
Seems there is a cogent argument (100% in hindsight of course) that in the context of a 20yr war that cost trillions, having doubled or tripled the compensation to those victim families would have been quite literally a gnat on an elephant’s rear.
I do not know Feinberg, and have no reason to doubt he is both a brilliant and empathetic person. But seems this is the perfect situation to debate whether the “correct” answer is alway the “right” answer.