Feinberg Addresses September 11 Compensation Quandry

Author: Charlie Goulding

Attorney General John Ashcroft appointed visiting Winter Term Professor Kenneth Feinberg to the position of head of the newly formed Sept. 11 Victim Compensation Fund in November of 2001, just two months after the attacks on New York and Washington, D.C. Both the fund and Feinberg's position have been controversial.

In fact, the families of seven victims recently filed a lawsuit against Feinberg, accusing him of acting illegally and unfairly. Feinberg's current post as "special master" of this fund was the topic of his lecture given on the evening of Friday, Jan. 24.

Secretary of the College and Professor of Political Science Eric Davis introduced Feinberg, and offered insight into the compelling logic behind Feinberg's appointment. After having graduated from New York University Law School, Feinberg gained recognition politically by serving as Massachusetts Senator Edward M. Kennedy's chief of staff. Feinberg later enjoyed a successful career as a lawyer, and is most famous for his groundbreaking work in the realm of class action lawsuits -- specifically those concerning breast implants and Agent Orange. Feinberg's expertise in class action litigation, particularly with respect to devices endangering humanity on a mass scale, made him a sensible choice for head of the fund.

Feinberg divided the content of his speech into three sections: a description of the fund itself, an analysis of the way in which the fund has been received and utilized by the victims thus far and the problems and concerns Feinberg sees with the fund.

The Sept. 11 Victim Compensation Fund was enacted by Congress to provide support to those directly affected by the attacks. The fund is applicable to any "next-of-kin" to someone who died in the World Trade Center, Pentagon or any of the four airplanes crashes and also applies to anyone physically injured from the attacks resulting in at least a temporary disability. Monetarily, the fund is essentially a blank check from the U.S. Department of The Treasury.

After reviewing applications for participation in the fund, Feinberg must then compute the amount to be allotted to each individual participant. To do so, he takes a fixed number of $250,000 (non-economic loss) and adds it to a rough estimate of what he believes the victim would have earned over the course of a lifetime (economic loss). Feinberg then subtracts from that sum any collateral income generated by the deceased such as the book proceeds of an author. Finally, as a departure from this decidedly formulaic model, Feinberg is allowed to exercise his own discretion.

Though the Sept. 11 death count currently stands at just below 2,900, only 1,000 next-of-kin have applied for compensation thus far. Considering Feinberg awards an average of $1.5 million to those participating in the fund, the number of current participants appears strikingly low.

Feinberg attributes this dearth of participation to three things. First, he believes some relations of victims are still too grief stricken to seek compensation. He also thinks that some remain dubious and await the results from other cases before deciding to take action themselves. Lastly, he believes that some people simply plan to wait until the last minute before applying. Feinberg expects a deluge of applications shortly before the Dec. 20, 2003, deadline.

Not all who were affected by Sept. 11 intend on participating in the program. Some will not seek any sort of recompense, while others will choose a wholly different course of action. To date, 61 people have filed lawsuits, bringing litigation against airlines, foreign countries and a slew of other potential sources of culpability.

According to Feinberg, "victims choose to sue when they believe it is the only way to make airlines safe. The other possibility is that they believe bringing litigation is the only way to get at 'the truth,' whatever that may be."

Feinberg labeled these potential motives as "spurious," having no desire to mask his own partiality.

Feinberg went on to illustrate the difficulties associated with the fund by providing poignant examples from his work.

To begin, Feinberg is endowed with the impossible task of assessing the life's worth of an individual in economic terms.

Feinberg spoke about allotting more money for a deceased bond trader than for someone with a less lucrative job. He recalled, "I was giving a presentation to a group once when the widow of a fireman gets up and says, 'my husband was a hero. He went into the first building, brought everybody out, and then went into the second building and it collapsed on him. Why should he be getting less than anybody else?' Then, the widow of a bond trader gets up and says, 'A fireman knows the risk he takes in his line of work. My husband was minding his own business when a plane crashed into the building he was working in.' What do you say to that?"

The contentions of both women shed light on the difficulty of Feinberg's task.

A Pandora's box can also lay at the heart of deciding who constitutes the "next-of-kin." When possible, Feinberg molds his decisions of where to direct the money in accordance with state law. All proceeds typically go to the spouse, if living, then the biological parents provided there are no children. Feinberg stated that, "I will always follow the guidelines of a will, if it exists. However only 25 percent of the victims had wills."

One fiancÈe approached Feinberg with her dilemma. Though she and her fiancÈe were not married, their wedding was to occur within weeks after the tragedies. Furthermore, the deceased had not spoken to his biological parents in 11 years. Feinberg identified this example as one in which he chose to exercise his personal discretion.

Finally, Feinberg appeared visibly moved by the most fundamental and human aspect of his job -- the stories of pain and suffering with which people must come to him each day. One man was unsure of whether to apply for compensation on behalf of one person or two since his wife died while pregnant. Another from the Pentagon suffered 80 percent burns on his body and showed up on Feinberg's doorstep bandaged from head to toe.

Feinberg concluded his speech by posing a question which cut straight to the heart of both the Victim Compensation Fund and the Sept. 11 tragedies themselves.

"Is the program a good idea?" Admirably, the simplicity of the question, as well as its bold objectivity, reflected Feinberg's professorial qualities more so than his obvious skills of persuasion.

Earlier in his lecture, Feinberg alluded to the connection between the fund and Congress' desire to protect the airlines from potentially crippling litigation. A vital aspect of the statute holds that "anyone who decides to enlist [in the fund] waives the right to bring litigation." Congress made it exceedingly unappealing to sue via other clauses in the act as well, including a provision to cap liability in case of a favorable judgment.

On a more fundamental level, Feinberg's inquiry brought into question the philosophical underpinnings of the fund.

"I got an e-mail from a victim of the Oklahoma City bombing asking: 'Dear Mr. Feinberg, my son died at Oklahoma City. Why don't I get money?' 'African Embassy bombing, Why not me?... What is it that's so special about Sept. 11 that justifies this unprecedented response?"

When questioned this fundamental issue, Feinberg affirmed his support of the fund. "I think it's wise ... there's a historical vein in this country. Call it compassion, call it an expression of solidarity, that makes this fund possible ... There's also something uniquely American about [it]. Something like this could only take place in America."

Feinberg also speculated that the very uniqueness of Sept. 11 could justify Congress' response to it.

Audience response to Feinberg's speech
seemed far less critical than the recent piece on him in the Nov. 25 issue of The New Yorker, to which Feinberg alluded when he began his lecture.

Indeed, Feinberg achieved a commanding sense of empathy with his audience, largely through his use of poignant illustrations and examples. Furthermore, Feinberg's use of stories and examples subtly evoked the all-too-simple reality that he has been appointed to perform a job. '"Dear Mr. Feinberg, my son died in the first World Trade Center bombing, in 1993; why not me?'"

The question points our gaze not only in the direction of the irrationality the incomprehensible humanity of the issue- but also at the person whose job it is to deal with it. "What do you say to that?" Feinberg kept repeating.

Feinberg posed one final question about the merit of issuing variable rewards.

When asked what changes he would suggest to Congress, Feinberg asserted that he would eliminate the variance in awards and compensate each person equally.