Kenneth R. Feinberg in 2012 wrote Who Gets What which is something of an autobiography with a focus on five cases he was involved in where a pot of money generated to ease the impact of a tragedy was allocated without recourse to standard legal procedures.
- Agent Orange
- 9/11 Victim Compensation Fund
- Virginia Tech shooting Memorial Fund
- Paying Wall Street Executives
- Gulf of Mexico Oil Spill
These days Mr. Feinberg is engaged in overseeing the fund for victims of the Orlando shooting while also involved in a polar opposite case where he is charged with deciding how and how much participants in six (and counting) multiemployer pension plans will have taken away from them.
After reading these excerpts:
Who would get what? The answers were outside the traditions of established law and up to me to decide. (page xv)
Though existing law may be capable of addressing these tragedies, in the context of a mounting public uproar, its machinations seem too complex, too time-consuming, too inefficient, or too uncertain. (page 188)
The case has not been made for wholesale replacement of the existing tort system. Piecemeal reform aimed at specific flaws in the system – limiting multiple punitive damage awards in the same litigation, enforcing more consistency in compensating for paid and suffering, providing administrative alternatives to deal with medical malpractice claims – is worthy of consideration, and model programs might be implemented to test the merit of such proposals. But radical changes – modifying the burden of proof at trial, federalizing state tort laws, adopting the “English rule,” which requires the losing party in a tort lawsuit to pay the legal fees of the successful adversary – are unwarranted. (page 193)
Efficient and speedy individual compensation determinations will be made through an administrative system that will bypass conventional legal proceedings. Procedural niceties, lawyer advocacy, and courtroom due process yield to the necessities of the moment – getting pay out the door to thousands of eligible claimants with a minimum of fuss and bother. (page 195)
Whether it is immediate cash in the wake of a national man-made calamity, or a compensation program traceable to populist anger over business excesses, these programs are established only because the public, acting through its elected representatives and agents, cries out for some type of government response. Not tomorrow, but today. Procedural niceties will follow later, along with an after-the-fact debate about the wisdom of delegating such awesome responsibility to one person. But for now, get the money out, fix corporate pay, and respond immediately and effectively to the crisis. (page 196)
I constantly remind individuals affected by these payment programs to channel their anger and frustration at policy makers, not at me. As an administrator, I simply do what I am told – relying upon statues, agency regulations, court orders, escrow agreements, or other enabling directives. The law establishes my jurisdiction. And I follow the law. (page 197)
What struck me was that if the Special Master concept works so well for these cataclysmic tragic situations that can’t afford the time to wait for resolution or the money to transfer half the available funds to maintain a tort system then why can’t we use it for all cases?
For participants in multiemployer plans, most of whom will lose on average about 60% of their ‘promised’ benefits some time over the next ten years, either system will yield similar outcomes though the road the participants are on likely means more money but fewer answers for them.