Who Gets What: Fair Compensation after Tragedy and Financial Upheaval is a story told by Kenneth Feinberg and his involvement in several historical tragedies over 28 years. Kenneth Feinberg is a lawyer here in the United States who has been involved in very large cases involving oil spills, victim compensation funds, and even the Agent Orange litigation. From Agent Orange to the Virginia Tech Shooting, there are people that were hurt. People, who under traditional tort concepts, should be compensated. This book talks about the decisions that needed to be made to help determine what those who were hurt should receive. This book also goes into the question of whether those hurt should be compensated at all. Feinberg was tasked with putting a price tag on some of the worst events in American history and was responsible for putting a dollar sign on the amount of suffering people faced post tragedy.
The book starts with a firsthand account of Feinberg’s upbringing in Brocton, Massachusetts. Feinberg then goes on speaking of his education, law school acceptance, working with Chief Judge Fuld, and then Justice Kennedy. It then goes on to discuss some of the largest compensation plans in U.S. history, such as the Agent Orange Compensation Plan after the Vietnam War when soldiers were suffering from their exposure to Agent Orange.
Agent Orange: Tort Compensation
In the second chapter, Feinberg recounts the 1984 Agent Orange litigation post-Vietnam War. “Agent Orange is a blend of tactical herbicides the U.S. military sprayed from 1962 to 1971 during Operation Ranch Hand in the Vietnam War to remove trees and dense tropical foliage that provided enemy cover.” “More than 19 million gallons of various “rainbow” herbicide combinations were sprayed, but Agent Orange was the combination the U.S. military used most often. This was a very strong chemical that affected soldiers for years to come.” Feinberg acted on behalf of these soldiers and families to distribute the settlement from these eight chemical manufacturing companies who created Agent Orange. Throughout the case, the soldiers were unable to produce strong evidence of the connection between Agent Orange and their ailments in which they alleged.
Feinberg came into this position due to appointment of the Judge presiding over this case. The Judge, aside from knowing Feinberg, knew of Feinberg’s extensive background and connections with cases and politics. The Judge even noted that he did not care Feinberg had no background in mediation at all but instead stated “I need somebody I can trust, somebody with the personality and skill to secure a global settlement of the litigation.” Although the evidence was weak, after five years of litigation, those eight chemical companies agreed to settle for $180 million dollars. This money was placed into a general victim fund which eligibility for recovery was decided by Feinberg himself. Feinberg spoke of this decision as a unique one, that post-Vietnam was a very uneasy time between the government, soldiers, and citizens. Although the actual settlement was small “the court (and the veterans themselves) viewed the settlement itself and a vindication of their suffering.” This was the beginning of the healing process after a very unpopular war. Although this settlement was unique and unprecedented, since specific dollar amounts were given in a qualification manner its concepts would be found useful post 9/11.
9/11 Compensation Fund: Fund Allocations
Feinberg then skips forward to his associations with the 9/11 Victims Compensation Fund. He starts with a recount of a Congressional bill passed only 9 days after the attack. This bill limited the ability to sue the airlines for the attack. Congress was trying to send a message, “think twice before litigating: it is not in America’s interest for the airline industry to become a courtroom target.” Feinberg became the head administrator for the fund, much like his role in Agent Orange, Feinberg was responsible for allocating the funds to the victims of 9/11. In the decision of how to allocate funds there were two options first, one could receive a payment via the 9/11 fund or the second option, a riskier option that allowed plaintiffs to file directly in federal court against the airline. Feinberg notes those cases would be no only risky, but plaintiffs would be hoping for a “homerun” in the courtroom. Meaning, this would be much harder to prove but at the same time if proven, would be much more lucrative.
The book talked about potential allocations of funds in which would allow some to receive millions and where alternate people involved, such as firefighters, would receive fractions of this amount via the first option of a monetary compensation. This was known as as the “who” argument. Congress in the flurry of events following 9/11 was quick to gain support in order to pass a bill, so much so that the “who” can recover was omitted. This may or may not have been on purpose, but Feinberg asserts it was an accident. This is where Fienberg’s efforts and expertise came into play. Expertise he used in his allocation plan associated with the Agent Orange plan. Feinberg argued payments of $250,000 to families of all victims, plus another $100,000 per surviving dependent would help make returns more reasonable. This uniform formula was later adopted, paying out nearly 5,500 victims and their families.
Concept Opinions: Author Critique
In summary the book then talks about a few other instance’s of compensation plans which revert back to traditional tort law concepts in determining liability and calculating damages based upon injury, much like the earlier discussed topics of Agent Orange and the 9/11 compensation fund. These other topics include setting compensations for Wall Street executives pre and post bailout and the BP Oil Spill. Although I agree with the authors allocations in a practical sense there were a few disagreements I had with his approach. The main issue of disagreement was the authors continued discussion of the repercussions of his decisions. In a sense, I feel as if the author wanted to create compensation plans that would please the most people on its face, but deep down I believe this idea was to evade his own liability. I first came to this conclusion at not only his tone but also the fact that he did many of these compensation plans pro bono. Again, on its face this makes the author look like a great guy and he might as well be so, but I believe this was ultimately to gain a fringe benefit of him looking good to the community. I also say this because in his discussions he reverts to his thought of who would be upset with his ultimate decisions. This is fine except for the fact that I never really got a sense of the victims’ stories. For example, if your child was just killed in a shooting, do you really want money? My answer to this question is no. The money aspect which was given to families in this situation was to avoid liability.
I do agree with the author that the money given out was a “no strings attached” grant of money. Meaning families could use that money to hire a lawyer, but I am willing to bet there was a miniscule amount of people who received compensation, used that money to sue the school. I understand the critical nature of my analogy, but I bring it up for the fact that I believe the author was too machine like. That when there is money, that money was calculated and doled out in a very concrete, robotic manner that was essentially the same in all three topics discussed. That in fact maybe that money could have been used in a better manner that would have helped families cope even more. Such ideas could have been, scholarships in the student’s names that the families could have chosen the recipients or maybe even a memorial much like the 9/11 memorial. Again, I say this because there is a very wide range of topics covered, from intentional to non-intentional acts in which the acclamation process was essentially the same. This can be good or bad, in my opinion, tort law must conform to the situation, and although structure is needed when assessing topics, different strategies need to be used in different situations.
Although I may seem very critical of the author, this book has also taught me a few concepts that will surely affect me into the future. It is also a great possibility that the authors approach to tort compensation should be structural and methodical. There are several ways in which those injured can be compensated and in fact, he might have made the right choice to create compensation plans in the way he did. With these altering views I will note, Feinberg did a very good job purporting to the masses of individuals in his structural approach. I especially agree with the BP Oil Spill allocations of funds and more so, the Agent Orange compensations. The Agent Orange were, in my opinion, one of the greatest compensation plans that were given and came at a very good time in which strengthened his decision to do what he did. I say this because Vietnam was a very unpopular war, and soldiers were coming back home with little to no support. This compensation plan, in my opinion, gave these men and women a sense of not only closure, but support for the things they had endured in Vietnam. Although the law is constantly changing, this compensation is one that teaches people that in the end, it is the people that matter. That although bad things happen to good people, there are always people that are there to support them. This is also shown in the millions of dollars raised for Virginia Tech and the 9/11 Compensation Fund.
Conclusion: Closing Remarks
This book outlines the personal account of Kenneth Feinberg and his personal influence on compensation funds from Agent Orange to the BP Oil Spill. Feinberg did an exceptional job in outlining the controversies between these topics as well as the authors thought process when trying to determine who gets what. There couldn’t be a better title to this book. I would also recommend this book to students who have an interest in history and especially to those students who are interested in torts and accident compensation.
