- So thanks for coming here.
How's this?
Anyway, thanks for coming here.
We've got one of our most
distinguished alums with us today,
Kenn Feinberg, who graduated in 1970.
He was a member of the
Law Review, an editor,
went to a fancy clerkship,
New York Court of Appeals,
was a prosecutor in lower
Manhattan for a while,
and then, his world changed.
He entered the wonderful world of torts.
He was involved in probably
the first mass tort.
There was other ones brewing at the time,
but the Agent Orange litigation that grew
out of the Vietnam War, Kenn
ended up serving as something
and Kenn did a special master
getting this complicated lawsuit settled.
And that launched him on a career
involving mass settlements
and the mass torts.
His resume more or less reads
like a history of catastrophe
in late 20th century.
Always on the end of trying to compensate
for the harms that have been done.
Aside from the September 11th
victims compensation fund,
which is probably the
most prominent matter
that he's dealt with, he's been involved
with the BP oil spill in the Gulf.
He's currently involved in
these massive settlements
involving the defective
ignition switches in GM cars.
He's a founding partner,
founding member, and managing partner
of Feinberg Rozen right now,
a small firm down in Washington D.C.
So he'll speak for about 30 minutes.
I'll wrap up for maybe five
minutes or so after that
and then we'll open up to questions.
- Well, I want to thank Rob
for that brief introduction.
Brief is important.
We only have a limited amount of time.
This is a very sophisticated crowd.
(laughing)
You guys are tort experts.
So let me jump to
chapter five and avoid the chapters
that you need to understand
when you evaluate
these programs like 9/11, or
BP, or GM, or Boston Marathon,
or Newtown, Connecticut, or Virginia Tech.
These compensation programs
that I'm involved in,
you have to distinguish
two types of programs.
There are the programs that
are a true alternative to the tort system.
If you decide to take money
as a 9/11 victim or a family of a victim,
or if you decide to take money
for business interruption or economic harm
after the BP oil spill in the Gulf,
or if you decide to take
money because your daughter
was killed in a GM automobile
with a defective switch,
now those programs, 9/11, BP, GM,
those programs are a true
alternative to the tort system.
If you take that money, you
waive your right to litigate.
You can't sue the World
Trade Center, the airlines,
mass port, the security guard
companies, BP, General Motors.
"Mr. Feinberg, we hereby give up
"our right to litigate in tort.
"Instead, we'll take the money.
"Where do we sign?"
Now, those programs are
very, very different
from One Fund Boston after
the marathon bombings,
the Virginia Tech shootings,
Newtown, Connecticut,
Aurora, Colorado, the
India State Fair windstorm.
Those programs are a
gift from private donors
around the country who send in checks.
They're an alternative to nothing.
You can take that money, turn around,
hire a lawyer, and litigate
against Virginia Tech,
against the school board
or whatever in Newtown, Connecticut,
against the owners of the movie
theater in Aurora, Colorado.
Go ahead.
Now, one of the fascinating things,
one of the fascinating aspects
of all of these programs
that are a gift, charitable
money, that don't involve
a waiver or your right
to sue, nobody sues.
Why don't they?
Why do people in a gift program
like the Boston Marathon,
why did they take this free money
and instead of hiring a lawyer, walk away?
There's a lot of research
being done now on that subject,
but I want to focus today,
because of the sophisticated
nature of this audience,
I want to focus on these three programs
that I've mentioned that
I've been involved in,
that are true alternatives
to the tort system.
9/11 by statute,
federal law.
13 days after 9/11, Congress passed a law
and the law simply said,
"Anybody who died on 9/11,
"airplanes, World Trade Center, Pentagon,
"or anybody who was
physically injured on 9/11
"can waive their right to litigate
"and come into a no-fault
administrative compensation fund,"
funded entirely by the taxpayer.
Federal money.
Not airline money, not insurance
money, not a mass port.
Federal money.
You don't have to.
You don't have to come into this fund.
It's voluntary.
Over the 33 months of that program,
97% of all the families that lost
a loved one on 9/11 came into the fund.
$7.1 billion
was paid by me,
out of petty cash from the U.S Treasury
and all but 94 people,
or 96 people, decided to take the money.
94 decided to sue and they all
settled their cases five years later.
It was never a trial on 9/11,
who was responsible, who was
negligent, never a trial.
Two people did nothing, nothing.
They never entered the fund
and they never filed a lawsuit.
Two people, overcome by
grief, they did nothing.
They let the statute
of limitations expire.
They let the statutory deadline
for filing with me expire.
They never did anything
because they were in such grief
that they couldn't bring
themselves to file or sue.
Everybody else, 97% came in.
94 people went out, filed a lawsuit,
settled with the airlines
five years later.
There you are, 9/11, wrapped
up with a ribbon around it.
BP, just as successful.
Over the 16 months, now
that wasn't Congress.
That was BP and a handshake
with President Obama.
Let's set a fund and we recommend
Kenn Feinberg and Kenn
Feinberg will do it.
Over 16 months,
$6.5 billion paid out,
223,000 releases.
"I will not sue."
From individuals and businesses.
92%,
92% of all eligible
claimants came into the fund.
Now after I left,
after I came home, BP decided,
as some of you know,
to enter into a Rule 23
class action settlement with
the remaining plaintiffs.
Well, they're still litigating down there.
I just asked them.
Don't blame me.
I'm long gone.
When I left, virtually all
of the real, eligible victims
of that oil spill had been
paid and signed a release.
It worked.
GM wasn't even the president.
There was such Congressional turmoil
over GM's alleged coverup of a defective
ignition switch in certain GM automobiles
that GM announced to the
Congress and the world:
"We're gonna set up an
independent compensation program
"as an alternative to the tort system
"and we're gonna turn it
over to Kenn Feinberg.
"Let him design it, administer it.
"We'll do whatever he says
"and you give up your right
to sue and there you are."
Now that program is still
ongoing as I'm here today.
4,500 people have filed a claim.
We have paid.
GM announced that they knew
of 13 death attributable to the switch.
We're up to 67 deaths
and about 150
physical injuries so far.
And that's how GM works, you see.
Now, I can guarantee to
the people in this room,
some of the conceptual
and political backdrop
to what I do is on your final
torts exam in a few months.
I mean, it is vintage tort one.
You cannot possibly
understand these programs
without being well-versed in
basic conceptual tort law.
All of the programs of those three,
not the private programs, not the programs
that aren't alternatives
to the tort system.
They have nothing to do with tort.
They have a lot to do
with trust and estates,
but very little to do with tort law.
But if you're trying, you guys get this.
This is NYU, you get this.
If the goal is to entice
people not to sue,
but instead voluntarily take advantage
of an alternative program
that'll compensate,
well, the alternative
program has two features.
One, there must be enough money
in it to attract people not to sue.
You can't ask people to sign
a release and get $1.60.
If you want them to not sue,
you've got to tell them
that we will pay you
a very substantial consideration
in return for your voluntary surrender
of the right to litigate.
Duh, it makes a lot of sense.
The other thing that you find right away
when you are trying to
voluntarily get people not to sue,
everybody gets a different
amount of money, right?
It's a fortiori.
If my programs are joined at
the hip of the tort system,
don't sue, we'll pay.
Well, the stock broker, the banker,
the lawyer, you've got to pay
them more than the waiter,
the busboy, the cop, the
fireman, the soldier.
They make more.
They're not gonna give
up their right to sue if
they can't get what they think
they might get if they roll
the dice in the courtroom.
So everybody gets a
different amount of money.
Now, that raises havoc with me, you see,
because people get very, very emotional
about this as you can imagine.
I'm asked all the time, "Is my law degree
"from NYU a help in
administering these programs?"
Not particularly.
(laughing)
I don't think it hurts.
It's sort of a wash, a divinity degree.
A divinity degree would be better.
A divinity degree or a
degree in psychiatry.
You're dealing with individual,
very emotional people.
It's not about law.
The law degree helps design the program
and set it up with rules and protocols.
It's human nature you're dealing with,
individual victims and their families.
Angry, frustrated,
dissappointed, saddened.
That's the problem.
That's the problem, dealing with
very emotionally vulnerable people.
So when you take on one
of these assignments,
it's nice to have an NYU
law degree behind you,
but brace yourself for
what you're gonna hear.
What you're gonna hear
and what you're gonna have to deal with.
Now, what do I mean when I say
you can't really understand
these programs without a
basic knowledge of tort one?
Well, let's look at the three programs.
Again, not the gift programs,
but the basic three, BP, 9/11, GM.
Agent Orange to some extent,
but we can talk about that another time.
If you read that 9/11 statute,
it says in the statute passed by Congress
that the methodology
that Feinburg will use
in calculating damages should
be based on state tort law.
Well, dust off tort one.
Get my notes.
It says right in the
statute, right in the law.
"When you evaluate individual claims,
"you will be guided by tort law."
Was the claimant's
death or physical injury
caused by the terrorist attacks
or were the terrorist attacks
the proximate cause of
the death of the injury?
Now, the deaths are easy.
The deaths are easy.
You either died at the World Trade Center
and have a police death certificate,
you have the airline manifests
who were on the planes,
or the military has excellent
records at the Pentagon.
The deaths aren't the tort problem.
The deaths we could rubber stamp based
on secondary evidence
like airline manifests,
New York City police departmant, Pentagon.
That's not a problem.
Ah, physical injury.
You better understand tort law.
Physical injuries, filed injuries.
"Mr. Feinburg, I was injured
"as a result of the 9/11 attacks.
"I live in Jersey City.
"When those World Trade
Center towers collapsed,
"the guck, the smoke, the asbestos dust,
"the ploom wafted over the Hudson
"and I have emphysema now.
"I didn't before.
"I was breathing that gunk for weeks.
"Pay me, pay me."
"Mr. Feinburg, I leave
on east 96th street,
"four miles from the World Trade Center.
"I was hanging a picture on a ladder
"in my living room when
I saw from my window,
"the airplane hit the World Trade Center.
"I fell off the ladder and broke my leg.
"Pay me, pay me."
Tort one.
The ladder with the painting,
that may not be a whole
excerpt in your book,
but it might be one of the
notes from a case, right?
So,
it's basic tort.
We won't pay you in Jersey City.
We won't pay you if you
fell off the ladder.
Now, it's not so much
that we won't pay you
because you can't make a colorable claim
based on proximate cause.
We won't pay you because we evaluate
your tort claim by reading
the statute that says,
"A claim asserted in the
"immediate vicinity of
the World Trade Center."
Well, we looked at the legislative
history, there was none.
Immediate vicinity.
In my discretion, unfettered,
immediate isn't East 96th Street
or across the Hudson River.
"Well, we think it is."
Well, then, you do it.
I don't think it is.
If you want me to do it and
I have unfettered discretion,
immediate vicinity means West Street,
South Ferry, Canal, and Lower Broadway.
That's the immediate vicinity
of the World Trade Center.
Not East 96th Street.
Nobody can really argue unless
they live in Connecticut
that East 96th Street's in the
immediate vicinity of
the World Trade Center.
Now, those are the decisions you make.
They are tort based.
Now, if you want a great
example of tort based,
take a look at the protocol online
right now governing the GM case.
Was the defective switch
the proximate cause
of the accident causing
death or physical injury?
Now,
the case is almost
entirely circumstantial.
Most of these GM accidents
occurred years ago.
The car is long gone.
The black box data in the engine
like on an airplane, long gone.
So how do you construct
a case that my son,
my daughter, my wife,
my husband, my whatever,
died as a result of a defective switch
in an automobile that no longer exists?
How?
Go to tort one and maybe
your class in evidence
and construct for Feinburg,
who's evaluating the claims,
construct a circumstantial evidence case
that the switch was the proximate cause.
Now, in fairness to GM that
never took a torts class here,
GM says, "We know of 13 deaths where
"there's direct evidence
it was the switch.
"We have the car.
"We have the switch.
"We have the death.
"We have the injury.
"We know by examining the car,
"there's something wrong with the switch."
Well, that's not this program.
My program is tort-based, proximate cause.
What does the police report
after the accident say?
Did the airbag deploy?
If the airbag deployed,
it can't be the switch.
Because if the airbag deployed,
the automobile's on, not off
at the time of the accident.
Otherwise, the airbag wouldn't deploy.
If the airbag deployed, you're ineligible.
Don't even bother.
Don't even bother.
You don't meet the
eligibility requirements.
It can't be the switch.
What does the police report say?
What do the photographs that were made
at the time of the
accident, what do they show?
Was it a front-end
collision where the airbag
should have deployed,
where the car hit a tree
and the engine's
practically in the backseat?
And no airbag deployed?
Sounds like a valid claim to me.
What does the insurance
investigative report say?
What about maintenance records?
We don't expect maintenance records
that mention the switch,
but "Maintenance, GM dealer,
"my car keeps stalling
going 70 miles an hour."
Stalling at 70?
Something's wrong.
"My antilock brakes don't work.
"The power steering locks."
If you've got maintenance records
tied to a power off while
you're driving, eligibility.
Damages?
I don't know if you guys
have studied damages yet,
but damages are right
out of the tort system.
What would the victim have
earned over a lifetime,
but for the tragedy?
Economic loss.
Chapter eight of your textbook.
What about pain and suffering?
Add that.
Chapter nine of your textbook.
Collateral offsets, if and only
if you've made a previous settlement
with GM before you knew about the switch.
Collateral offsets, chapter
10 of your textbook.
That's it.
That's it.
Now, before we take
questions from the boss
and you,
are these programs,
forget the alternatives
to the tort system,
they happen occasionally,
they're based on the charitable impulse
of the American people,
which is unbelievable,
and put them aside.
That's a whole nother course, you see.
But are these programs like 9/11,
BP, GM, are they a good idea?
Are they sound public policy?
Now, don't be too sure.
The 9/11 victim compensation fund,
I will defend that fund
until my dying breath.
I think it was sound public policy.
I think it was the right thing to do.
I think it exhibited the best
in the American character.
Don't ever do it again.
The 9/11 fund was compensation
using taxpayer money.
Now, bad things happen
to good people every day
in this country and there's no 9/11 fund.
The idea that Congress will
segregate for very special,
generous treatment, only these people.
Everybody else, fend for yourself.
If you're a 9/11 victim,
we'll pay, tax free.
Anybody else, sorry.
I think you can, and I
do, defend the 9/11 fund.
At the time, from the perspective
of the American people,
not the victims, sound
public policy at the time.
But you should've read some of the emails
I got during my administration
of the 9/11 fund.
"Dear Mr. Feinburg, my
son died in Oklahoma City.
"Where's my check?"
"Dear Mr. Feinburg, I don't get it.
"My daughter died in the basement
"of the World Trade Center
in the original 1993 attack
"committed by the very
same type of people.
"Where's my check?
"And it wasn't just terrorism."
"Dear Mr. Feinburg, I am
at a loss to understand.
"Last year, my wife
saved three little girls
"from drowning in the Mississippi River
"and then she drowned a heroine.
"Where's my check?"
You know, you better be
careful when you spell out
for public taxpayer
money, only these people.
Everybody else, out of luck.
Everybody else, out of luck.
"Dear Mr. Feinburg, I don't understand.
"I'm reading here in the Gulf oil spill,
"you're paying all of this money
"to the victims of the BP oil spill.
"Well look, I'm still waiting for Exxon
"to pay me for Exxon Valdez 22 years ago
"and I'm still waiting and
you're paying people in 60 days.
"Doesn't sound fair to me."
Fair?
Wrong word.
What's fair about any of this?
Just?
What's just about any of this?
This isn't about justice
or fairness, forget it.
It's mercy.
It's about mercy, not justice or fairness.
But I can understand why an
Exxon victim ain't too pleased
with the speed at which
BP is paying claims.
And you know all I can tell people is,
"Well, go ask the Congress.
"Go ask BP."
GM.
"Mr. Feinburg, I don't understand.
"My son died in an auto accident
and it was a GM switch."
"Well, what car were you
driving, he was driving?"
"A Mercedes."
Now, look, if your kid
was driving a Mercedes,
it can't be a GM switch.
It's a Mercedes switch.
"No, my mechanic told
me it was a GM switch."
"Get me the name and
number of your mechanic."
"Oh, he died.
"He's not around anymore."
Ineligible.
There are hundreds of thousands of people
with recalled GM automobiles
that are not eligible to
participate in this program.
So, in so far, certainly the 9/11 fund,
you'll never see that case again.
You'll never see that fund again.
The 9/11 fund is better studied,
not in tort law, better
studied in a history class
because it is a unique response
to an unprecedented national tragedy.
Now, let me close before
we get some Q&A going here.
People ask me all the time,
"What's the most difficult
aspect of designing,
"implementing, and administering
all of these programs?"
Tort, non tort, whatever.
By far, the most difficult
is when you agree,
as you must be willing to do, to meet
with any individual claimant,
one on one, in confidence.
It is absolutely debilitating.
You have to do it.
Anybody who lost a loved one on 9/11,
anyone who lost a loved one
because of a GM automobile
who wants to see me, come and see me.
A lot of people don't
want to come and see me.
A lot of people grieve in private.
They close the door
and they want nothing to do with anybody.
They send in their claim, they get paid,
they move on or they don't, but that's it.
Some people grieve when
they want to see me.
Now when they come and see me,
they never really come to
see me to talk about money.
Money isn't on their mind.
They come for two reasons.
One, to vent about life's unfairness.
"Mr. Feinburg, I lost my daughter.
"She had just graduated
William and Mary Law School.
"She had a first year law associate job
"at a law firm in Richmond.
"She was an angel.
"And because of the GM
coverup, I lost my daughter.
"Where is the justice?
"There is no God.
"No God, Mr. Feinburg,
could allow this to happen.
"My daughter's gone."
Or people come to see me to validate
the memory of a lost loved one.
"Mr. Feinburg, I lost my husband
at the World Trade Center.
"He was a fireman.
"We were married for 25
years and I'd like to,
"at this hearing now, I'd
like to start my hearing
"by showing you a video of
our wedding 25 years ago."
"Mrs. Jones, you don't
have to show me that video.
"It'll be very emotional
"and it won't impact the
compensation one penny."
"You're gonna watch.
"I want you to see what those
murderers did to my husband."
"Show the video."
My office was filled with
memorabilia, ribbons,
diplomas, medals, certificates
of good conduct, honors.
It was unbelievable.
Filled my office to the brim,
I couldn't get in the
office with memorabilia,
where people come and wanna
validate what it's like
for the lost one and what that
lost loved one meant to them.
It's unbelievable.
And the stories you hear
when you go one on one.
Two examples.
Two.
24-year-old woman comes to see me.
"Mr. Feinburg, I lost my husband.
"He was a fireman at
the World Trade Center.
"He left me with our two
children, six and four.
"Now, you're gonna give me $2.5 million.
"I want it in 30 days."
"30 days?
"Mrs. Jones, this is
the federal government.
"This is the treasury.
"This is taxpayer money.
"The bureaucracy, it may take more than
"30 days to cut the check."
"30 days!"
"Why do you need the money in 30 days?"
"Why?
"I'll tell you why.
"I have terminal cancer.
"I have 10 weeks to live.
"My husband was gonna survive me
"and take care of our two children.
"Now, they're gonna be orphans.
"I still have my faculties
"for a few more weeks, Mr. Feinburg.
"I gotta get this money and
set up a trust for my two kids.
"Now, they're gonna be orphans."
Well, we accelerated the money.
Eight weeks later, she died.
I mean,
unbelievable.
Stories like this.
And then there's this story
and I'd be interested.
You guys are all masters of the universe.
If you were in my shoes,
what would you have done with
this real claim, a real story?
A 24-year-old woman comes to me sobbing
so I thought she might collapse.
"Mr. Feinburg, I lost my husband.
"He was a fireman at
the World Trade Center.
"He was Mr. Mom.
"Every day that he wasn't
working at the firehouse,
"he was home, teaching our six-year-old
"how to play baseball,
teaching our four-year-old
"how to read, reading a bedtime
story to our two-year-old.
"What a cook!
"Mr. Mom cooked all our meals.
"He was the gardener around the house,
"mowing the lawn, planting the flowers.
"Mr. Feinburg, I don't care
how much money you give me,
"my husband, Mr. Mom, my husband is gone.
"The only reason I haven't
jumped out a window
"to join him is our three
kids, but my life is over.
"It is over.
"I'm going through the motions."
She leaves.
The next day, I get a telephone call
from a lawyer in Queens.
"Mr. Feinburg."
"Yes?"
"Did you meet yesterday with the lady,
"Mr. Mom, and the three
kids, six, four, and two?"
I go, "Yes, terrible."
He goes, "Now look,
you've got a tough job.
"It ain't easy.
"I don't envy what you've gotta do,
"but I gotta tell you Mr. Feinburg,
she doesn't know that Mr. Mom
"has two other kids by his girlfriend
"in Queens, five and three.
"And I'm telling you
this because I represent
"the girlfriend and
when you cut your check
"from the 9/11 fund, there's
not three surviving children.
"There's five surviving children,
"but I'm sure you'll do the right thing."
Click, he hangs up.
(laughing)
Do you tell her?
Do you tell her about these two kids?
I know there's some
lawyer here, "Paternity?"
Yes, paternity.
Do you tell the wife
about the two other kids?
Now, we went around and
around and around on that.
I didn't tell her.
Not my place.
I'm a federal bureaucrat trying
to get money out the door.
I don't know the facts.
I don't know all the circumstances.
She has a memory of her husband.
I'm not about to.
Now that was what, 12, 13 years ago.
I'll bet you anything, they
know now, but not my place.
We cut one check to the
wife and the three kids
and cut a separate check to the girlfriend
that's the guardian of the two kids.
That's it.
We move on.
Finally, I will tell you
this, good way to end
and take some questions.
In all the years I do these programs,
I've only had one claim, one,
in all these years, thousands of claims.
A lady after 9/11 came to see me.
You guys will appreciate this.
She says to me, "Mr. Feinburg,
"I lost my husband in
the World Trade Center.
"Now, am I right that no matter what I say
"in this hearing, you're
not gonna change the award?"
I go, "That's right.
"We're gonna give you 2.9
million and this is a hearing,
"voluntary, you wanna come
and see me, that's fine."
She goes, "All right, I
wanted to make sure about that
"because I want to tell you something.
"My husband was scum.
"He ruined my life.
"He's so much better off
dead than he ever was alive.
"I'm at last getting justice.
"I waited all these years
for some opportunity.
"Thank God he's gone.
"Now, I get 2.9 million.
"It ain't enough for the
torture I went through married
"to him, but at least I'm
gonna get paid for something.
"But I just wanted to make
sure I'm getting this money.
"There is some justice in this world."
Now, that was a very unique claim, I must.
So there we are and I will take questions.
(clapping)
- It was as I'd hoped.
If you're deferring what Kenn Feinburg
is most expert at and to do it
in kind of a tort framework,
I would say that out of
anybody in human history,
Kenn probably understands the
compensatory damages remedy
better than anybody else.
And what you've just
heard is a description
about how tort law, which you think of
in a derogatory way on the street,
is there's ambulance
chasers going after money.
You've got greedy tort
plaintiffs going after money.
It's just about the money or
the compensatory damages remedy
in a lawsuit and of course,
it's not at all that.
So compensatory damages
remedy is deeply psychological
for all the reason Kenn just described
because what you're doing in
these cases quite routinely,
is you're trying to compensate
something that quite simply,
cannot be compensated by money.
Wrongful death is the most extreme,
but severe bodily injury, there's no way
that a few million dollars or
whatever makes somebody whole
when we're talking about
severe bodily harm.
And so there's just a massive
emotional component to all of that.
Part of tort prep is that
there's no possible way
you can convey that in a torts class.
Nor can most people
even actually come close
to understanding it through
tort practice itself.
The idea in tort class,
the idea in tort doctrine
is that compensatory damages
make the plaintiff whole.
That's all you have to say about it,
nothing more and you move on
and you talk about other
aspects of tort doctrine.
And yet, if you could
gather from the remarks
from Kenn here, is that the practice
of awarding compensatory tort damages
is heartily about simply
making people whole
because what it needs to be made whole
in a contest like this is
extraordinarily complex.
It's not a legal question.
You go to divinity school,
you're a psychiatrist or whatever.
But what you're trying to do
is come to some sort of peace,
a closure, to be best that you can
using money as the medium for doing so.
Now, the interesting question to take from
this is it's really hard to
teach this in torts class.
You don't get it by
reading a pallet opinions.
The cases are always tragic,
but it's abstract and analytic.
But the reality of it is not something
that's lost on the practice of tort law.
Because if you think that tort law
is just about the
compensatory damages remedy,
then you've completely missed everything
that Kenn was just describing.
Because if you are in that world
and you're experiencing,
and trial judges, of course,
have this kind of experience,
and you're thinking about,
"Well, what kind of tort
system should we have?",
what you realize pretty clearly is that
what we're talking about here
is what the common law
calls, irreparable injuries.
These are a category that if
we have to compensate them,
of course, we'll do so with the
compensatory damages remedy.
But let's not pretend that
these are injuries that
in general, can be adequately
compensated with money.
That's why we call them irreparable.
Now, within the common law,
this is a remedies doctrine.
It's not one you would think of as tort,
but the logic of it is so obvious
after hearing Kenn that
there's no question in my mind
that this deeply informs
the way that tort law is,
in fact, formed in practice.
The common law principle
when you're dealing
with irreparable injuries
is that obviously,
what you should try to do
is prevent them in the first instance.
And so far as these
injuries happen, of course,
we'll try to clean up the mess
the best we can and understand though,
that the money is never gonna
make up for a lost life.
So at the very simple
idea that we're dealing
with a world of irreparable harms
and the reality of those irreparable harms
are brought to light over and over again
by the stries that Kenn tells,
makes you understand
that when you're thinking
about tort doctrine, of course
a compensatory damages remedy is helpful.
But to really understand tort law,
you need to understand the inadequacies
of the compensatory damages remedy.
And in the light of those inadequacies,
how do you set up tort rules
to govern behavior and so on?
Now, when people ask me why
I spend my life doing this,
isn't is horrible and everything else?
And the point is that what you wanna do
is make the world a safer place.
When things go bad, of course,
that's when we wish things
had been differently,
but it doesn't mean that we can't prevent
those kind of bad outcomes
from moving forward.
And I'm pretty confident that Kenn's
understanding of tort law, after all,
this isn't that tort law's a bad thing.
As compensation, is it a good thing?
No.
As a method of responsibility, prevention,
deterrence, or whatever,
absolutely essential.
And I think to really, fully appreciate
the psychological reality of
that is just to understand,
to listen to those
stories that he tells us
because that's the reality of tort law.
Money helps, but money hardly
comes close to compensating these harms.
So we'll take questions from the group.
Identify yourself if you can
before asking a question.
Go to one of the microphones
because it's being taped so that way those
who aren't here can hear the
question on the video tape.
All right, while I see you go back there,
I'll ask questions.
I was putting words in your mouth as to
how you understand tort law.
If you could respond to what I said there,
the extent to which you think.
- I have a couple of
responses to those statements.
First, is tort compensation adequate
to make the victim whole?
No.
Money is a very poor substitute
for injury, loss, death.
Somebody have a better way?
Does somebody have a better way?
If you think that the
programs that I administer
make the victim whole,
you are sadly mistaken.
The compensation that I
provide tied to the tort system
is not anymore adequate
than the tort system itself.
And one of the difficulties
I have is when I try
and explain to victims or their families
how all I can do is give you this money.
I got a call from a victim
of the Boston Marathon.
He was running and it was right there
when the bombs went off
and blew his leg off.
He called me up.
"Mr. Feinburg, I'd like to
come and see you but I'm still
"in rehab in Spalding, in
the hospital in Boston."
I said, "That's all right.
"I'll come to see you."
So I went over there.
This is exactly the point Matt's making.
I went over there.
I walk into his hospital room.
There he is lying in a bed,
hospital bed, with a stump.
On his lap, his
nine-year-old son, and around
the hospital bed, his wife,
his mother, his brother.
I say, "Mr. Jones, this
is terrible, horrible.
"I'm here to tell you that One Fund Boston
"is going to give you a check
tax-free for $1,125,000.
He looks at me.
"A million 125, huh?
"I've got a better idea.
"Keep the money.
"Give me my leg back, how's that?
"Give me my leg back."
"I'm sorry Mr. Jones.
"I wish I had that power, I don't.
"It's all I can do."
Inadequate, you see.
But
is there a better way?
For over 200 years, we've
thought about and written
law review articles about
whether there's a better way.
I haven't read a better way.
What's a better way?
In a capitalist society,
free market, it's money.
Money's the equalizer.
It's always been that way.
My compensation fund removes
from the litigation system,
the process for obtaining money,
but money is still the end game.
It's the whole rhyme and purpose
of the program is money at the end game.
Secondly, second point made,
this is a great exam question actually.
Do the compensation programs
that I design and administer,
fail to give
true value
to theories of tort deterrence?
In so far as the tort system is designed
by punishing the wrongdoer through money,
in so far as the tort system is designed
to deter negligent
conduct, reckless conduct,
inappropriate conduct, do these programs
that I administer fail
to take into account
theories of tort deterrence?
If you pay everybody in 9/11 a check
and there's no lawsuits,
how are you going to make
the airlines safer, or the
World Trade Center safer,
or Mass Port safer?
Doesn't the tort system act as
a check on improper behavior?
Now, I hear that all
the time in law schools
from those who challenge
these programs of mine.
And I have a couple of answers.
One, you're right.
These programs don't take into account
theories of tort deterrence.
That's why they're so rare, you see.
Don't try and build
too much of an argument
about theories of tort deterrence
by looking at these three
programs in the last 15 years.
Because theories of
tort deterrence continue
to survive in the 99.9% of
the rest of the tort system.
Secondly,
the flip side of tort
deterrence is over deterrence.
94 people opted out of the 9/11 fund
and most of them said they were opting out
because their dead wife
or their dead husband
would want me to opt out in order to make
the airlines safer by litigation.
My answer.
"Don't be ridiculous.
"First of all, you're not gonna make
"the airlines any safer
by filing a lawsuit.
"the airlines are already being made
"safer every day through
regulatory activity.
"If you wanna make the American
"transportation system safer, sue Amtrak.
"Sue the cargo companies in New Orleans
"or at ports around the United States,
"where an atomic bomb may come
in in pieces in a cargo ship.
"The airlines?
"How much safer are you gonna
make the airlines than now?
"And besides, you really believe
"you're gonna make the
airlines safer, why?
"There's 93 other people who opted out.
"They're gonna make the airlines safer.
"You don't have to sue.
"Why don't you take this
money and let the other
"93 people sue to make
the airlines safer?"
Over deterrence.
You get those arguments.
So I don't really think that
these three, BP, GM, 9/11.
You could make the academic
arguments, academic.
But as a practical matter,
I don't think that there's much to it.
I think there's a great
deal to the argument
that worker's comp programs in 50 states
or some other administrative
alternatives to the tort system
might undervalue tort
deterrence in the workplace.
That's another argument altogether.
- So, do we have any?
Oh, here we go.
- Oh, good, because I
would've been embarrassed
if I had left my alma mater
without a few questions
from the distinguished,
sophisticated crowd.
- I can't possibly
imagine that would happen.
- [Kenn] Good, you'll start.
- So, I'm Dougland and I'm a 3L.
Thank you for being here and
giving this enlightening talk.
My question is this, with
respect to the programs
that take the place of the tort system,
you've casted doubt on
whether you think they're
a good idea in the abstract
and whether they should
continue and be common.
But if they are to continue,
do you think there is a
better way to administer this
than to have one distinguished
person, a private citizen
who everyone goes to every
time we need to do this?
Or should there be some government office
or some permanent system?
- That is a very good
first question, I must say.
And there are two problems
with delegating to me
this type of authority.
You've mentioned one.
No checks and balances.
No appeals.
No committees.
Under the guise of efficiency,
speed, cost effectiveness,
administrative convenience,
let's just delegate to one guy
and let him do the job and
we wash our hands of it.
That's the easiest, most cost effective,
consistent, certain way to do it.
I think there's big problems with that.
Now, I don't think the
problems are as important
in a law school class as in
a political science class.
I'm not sure it's a very good idea
and I tend to think it's
not, to delegate all of this
authority to one person,
to just say, "You do it.
"You did it last time and you did it well,
"so it's a perfect cover for us."
It's a problem.
You're right.
Now, people say, you're
implicit in your other comment,
if I do it over again,
is there a different
way to make it better?
Yeah.
Don't tie it to the tort system
and give everybody the
same amount of money.
Don't pit one against another.
You're gonna get three million,
you're gonna get two million.
"I'm only getting two and
my neighbor's getting three?
"What do you have
against my wife who died?
"You didn't even know her."
He's right.
It's a problem.
You fuel
the very tension and the very emotion
you're trying to suffocate by coming up
with the program in the first place.
And yet, you're fueling it by
giving everybody a different
amount of money because it's
tied to the tort system.
You have to.
Very problematic, I must say.
- [Dougland] Thank you.
- Next.
Yes, ma'am.
- [Anna] My name is Anna.
I'm an LLM student.
Thank you for being here.
- I'm sorry?
- [Anna] I said, my name is Anna.
I'm an LLM student and
thanks for being here.
My question has to do with the comment
that you made early on about some research
into why people quite readily
sign away the right to sue.
I wonder if there's been,
if you can tell us a
little bit more about those
93 or 94 people, if the
imagined idea of deterrence is
really something that they all
think they're moving forward.
And my question, it's more
about what your role is.
Do you have any obligation to
those people who opted out,
to encourage them to opt in?
Do you have an obligation to
steer them away from the tort system?
How do you view that?
- I try and encourage them not to sue.
I try to encourage them by
telling them if they do sue,
they may get more money, they
may get more satisfaction.
But the policy makers who assign
this task to me, don't want lawsuits.
It's not my role.
Policy makers decide,
let's set up a 9/11 fund,
a BP fund, an oil spill fund, a GM fund.
They are looking to divert
people out of the tort system.
In a way, I'm your agent.
And I'm trying to
encourage them voluntarily
to give up that lawsuit option.
Now, where I get a lot of help
in that regard is from the judges.
In 9/11, all of the 94 that opted out
went to Judge Hellerstein
in the Southern District.
He told them, each one of them,
"I'll give you a fair trial.
"You're entitled to do this and
I'll protect your interests.
"Are you sure you don't want
to get out of the street
"and see Feinburg, who will
get you your money in 60 days?
"No roll of the dice, no uncertainty.
"Are you sure?
"Because if you are sure
you don't wanna, fine."
Judge Borbier in New
Orleans in the BP oil spill,
"Anybody who wants to come
into the class, you're invited,
"but are you sure?
"Feinburg's over here
settling cases right and left
"and paying billions of dollars.
"Are you sure?"
"Judge, we don't think you want
"to encourage people to go to Feinburg."
"Why not?
"220,000 releases.
"That's 220,000 that I don't
have to deal with in the class.
"Why wouldn't I encourage it?
"It's on the up and up."
Now, why don't people come
in and why did the 94 sue?
Well, I met with the 94.
None of them avoided my fund
because they thought they
could get more money.
That's ridiculous.
You couldn't get more money.
People did, but then they had to give
25% of the recovery to their lawyer.
Maybe they did.
Most people told me, one, "We
heard Professor Gleasagon.
"We heard what he said.
"We're suing because my dead wife
would want me to make the airlines safer."
Or,
"We're suing because only in a lawsuit
"will we really find out
who's responsible for 9/11.
"In a lawsuit, that'll all come out."
I said, "It won't come out in a lawsuit.
"You're not gonna find out.
"If you wanna find out
what really happened,
"go down to the special committee
"established by Congress
to look into the attacks.
"They're gonna issue a report.
"They'll tell you everything.
"Go to the Select
Committee on Intelligence
"in the Senate of the
House, the CIA committee.
"They're gonna issue a report.
"That's where you'll find out.
"You're not gonna find out in a lawsuit
"with national security
overtones what happened.
"That's crazy."
94 people said, "Thank you.
"Thank you Judge, thank you Kenn.
"We're gonna sue."
Fine.
Much more problematic are
the two people who were
paralyzed and did nothing.
That was really a blow.
Sue if you want, but do something
before the statute expires.
Next question.
- Hi, my name's Noah, I'm a 3L.
- [Kenn] I know you well.
- It's good to see you Kenn.
(laughing)
Two questions.
You mentioned that the
problem with the 9/11 fund
was that other victims
did not get compensated
and as a relative matter, that's unfair.
So I was wondering about your response
to two responses to that.
One is, Oklahoma City
victims were not gonna
get taxpayer money anyway,
so what's the problem
when I at least compensate these people?
And another spin would be,
why not expand the number
of eligible victims so
other countries like Israel,
for example, offer payments
and psychological counseling
to all victims of terrorism?
- First of all, why do you
say that Oklahoma City victims
weren't gonna get paid
public money anyway?
I don't know why that follows.
Why aren't Oklahoma City
victims of an American
terrorist attack as eligible
as anybody to get public money?
Now, if what you mean by that is,
but they didn't have the
political clout to get that money,
so why not give it to those who
do have the political clout?
That's a rather Machiavellian approach,
but that's exactly what happened.
But I wonder whether that
doesn't leave a sour taste
in the minds, not only of Oklahoma victims
and their families, but
any victim of a disaster
where they're innocent and
yet, they're not eligible.
To what extent is paying
just 9/11 antithetical
to Constitutional theories
of egalitarianism and equal
protection of the law and
everybody's life is valued.
I just wonder whether singling out 9/11
as the sole political objective
of political power
is just or does it do harm
to the American constitutional
and republican system?
That's the problem.
Now, why don't we pay everybody
who is an innocent victim?
Well, they do that in other countries
through either the social service network.
Germany's done something
like that since Bismark.
There is a floor
of health and related costs
where government funded
programs provide that floor.
Nowhere on Earth does anybody
talk about paying victims
millions of dollars instead of litigation.
It's one thing to say, "In
America, we have a bad system.
"Anybody who's harmed, innocently
or not, for that matter,
"ought to get free health
insurance, free mortgage payments.
"Your car automobile payment
ought to be protected."
Maybe, maybe.
The idea that in addition, we'll give you
$3 million if you promise not to sue.
Well, no other country allows
you to sue for $3 million.
No other country.
So, it's all about the dollars.
If you have a system of
social safety network
and you don't have a litigation system
like in the United States, sure.
Right now, if you're
murdered in New york City,
God forbid, your family will get what?
$5,000.
There's some victim assistance.
There's some pittance that
reflects, here's a few dollars
to pay for the last two
payments of your automobile.
Three million, seven
billion, five billion?
Unheard of.
I went over to England
after the terrorist attacks,
the buses and the subways, 52 dead.
I go to testify Parliament.
Very interesting.
"Mr. Feinburg, we've been
following your program after 9/11.
"We're thinking of doing
something like that
"here in England for 52 terrorist dead.
"How did it work?"
"Well, we set up this fund and
"it was taxpayer money
and we administered it.
"Wonderful, what a fabulous program.
"How much did you pay on
average to each death?"
"A little over two million."
I'm on the next British
Airways plane home.
They heard those numbers and gagged.
"Mr. Feinburg, in our country,
we don't allow payment
"like that and thank you
very much for your visit.
"This was very enlightening."
And I think they ended
up giving each victim,
I don't know, a few thousand dollars.
America is really unique in that regard.
It's not transportable anywhere else.
- Hi, my name is Winston.
I'm a 1L.
My question is actually
very similar to that,
but I'd already stood up
so I thought I'd stay.
(laughing)
- [Kenn] I'll find you a different answer.
- Okay, well, maybe I'll
narrow it a little bit.
Could you just tell us a bit
more about the decision to use
public money and what, if any,
debate there was at the time?
Because I'm actually very interested in,
you mentioned and you alluded
to earlier that at the time,
right around 9/11, that felt
like a very popular decision
that people could get on board with.
But that that's because they
have a lot of political clout.
It was a national shared
tragedy, but does, generally,
the decision to use public money,
in the abstract but also at that moment?
- If Congress had waited two more weeks,
I don't think there would
have been a 9/11 fund.
Not this type of fund.
This was a very emotional response.
Congress, within two weeks of 9/11,
wanted to do something to demonstrate
to the country and the world,
we take care of our own.
We take care of our own.
We will show it
how we take care of our own family.
Now, it's true the
genesis of the 9/11 fund
with the airlines coming to
Congress saying, "We need help.
"If you don't come up with a program,
"people will be afraid
to fly because of 9/11.
"They'll be afraid to fly and lawsuits
"will encourage people not to fly.
"Forget that we'll win the suits.
"The mere fact that
suits are filed will be
"in the newspaper and people will be
"afraid to fly and we'll go bankrupt."
Well, they went bankrupt
anyway, but the fact is,
Congress reacted by setting up this
very generous fund that went
way beyond the airlines.
Very emotional, patriotism.
It was a lot of patriotism.
You may have killed these people.
We'll show you we take care of, you know.
We will rally around the victims.
That's a very emotional, patriotic thing.
That's the American flag, you see.
And that was a major reason for this.
And I think if it happened
again, God forbid,
I don't think Congress
would react the same way.
There was no 9/11 fund after
Katrina, 1,000 people died.
There was no 9/11 fund
after the Boston Marathon.
That was not public money.
That was private money.
It's a one off, the 9/11 fund.
Good thing too.
- Hi, my name is Mitch Sternum, a 2L.
And I was curious to at
what point are programs
like these essentially
filling in where we could have
an insurance system or,
you mentioned before,
a social security
disability that if you had
a more robust system there that that
is arguably a more
efficient way of doing it.
If somehow, if the government
is going to do this
for the 9/11 fund, there's no reason
you couldn't extend that program,
have it be ongoing for the whole country
and have a certain amount
of tax dollars go in
and you have payments going
out when someone's working
and you can issue out payments
based upon prior tax returns
or however you want to
measure income potential.
And so,
in that regard, there's
certainly little doubt
in my mind that at least in these cases,
they are more efficient
per say than litigation,
but if what we're really going after is
compensation, then is maybe
more insurance like this the answer?
Or alternatively, if what we're going for
is overall healing and recovery,
should we be talking
about more comprehensive,
psychological services that,
I found your stories incredibly moving,
but it seems to me that these are people
that maybe should be talking to someone's
who's got an advanced
degree in psychology.
- Can I just say, very reasonable.
That's a very reasonable
statement, very reasonable.
And backing up the reason,
I'm going to say in a minute
why it hasn't got a prayer,
but it's so reasonable,
it doesn't have a prayer.
The fact of the matter is,
your argument has been
made over and over again
for the last hundred
years in this country.
The best example of your argument,
the best example I know of your argument.
In 50 states, we have a
worker's compensation system.
You cannot sue as an
employee injured on the job.
Go to your worker's comp agency.
You will be paid in
lieu of going to court.
Wonderful idea.
Second, to show you how unrealistic it is
to think that you could ever go from that
academic concept, conceptual
approach to reality.
The American system
is so antithetical
to that type of communitarian
reliance as opposed
to every individual has
their own responsibility.
Private insurance.
If you don't wanna buy private insurance,
that's your problem.
If you'd rather roll the
dice with no insurance,
that's your problem not the community's.
The fight over the last 50 years,
over single payer health insurance.
The fight over the Affordable Care Act,
which isn't even single
payer health insurance.
It buys into the notion
of individual computation
to buy insurance unless
you can't afford it.
But then if you can't
afford it, you're gonna
go to a private carrier
to get that insurance.
So the idea that we ought to just sit down
and reasonably replace the
vagueness and uncertainties
of the existing system with
a model along the lines
of what your reasonably
articulating makes a lot of sense.
Political science wise,
it doesn't have a prayer.
Senator Kennedy tried.
He was in the Senate for
45 years, Ted Kennedy.
He tried over and over again
to use your words and come up,
just in the health system
with a single payer,
communitarian, Medicare, not a chance.
Not a chance.
Made a lot of sense.
Not a chance.
And I don't defend or
criticize that approach.
I'll go then to say,
any type of European bisma or
any type of Medicare/Medicaid,
Social Security expansion
designed to provide an
alternative to litigation system
that will replace the sealant programs
that I do once every five years, BP, 9/11,
no political muscle could do it.
No political muscle.
It's not the American way.
It's just not.
And for that reason, I think it's
worth a discussion, but in torts.
I assure you guys, if you haven't already,
will soon be taking a quick
look at the New Zealand
pubic insurance system.
Cradle to grave insurance.
In every tort class, I was
on with Professor Sugarman
in Burlington for a couple of months.
What about New Zealand?
New Zealand?
You're a lost sheep to people.
How are you gonna get a New Zealand?
There's no interest in this
country in New Zealand.
The only way they deal with
injuries, taxes, deaths,
so there's the worker's comp system.
Check mark next to your argument.
There's the New Zealand cradle to grave
system of communitarian insurance.
Check mark to your argument.
Everybody else, you're dreaming.
You're dreaming.
That's what you are.
You're just dreaming.
Couple more?
- I think we still have two more hours
of Kenn for those of us who
have torts this afternoon,
so we'll conclude here.
And those in my torts class,
we're not studying the New Zealand plan.
Don't worry about that.
(laughing)
- But you know all about it.
(laughing)
Thank you.
(clapping)
