The Uncommon Leadership Series

Guest Commentary

Professor Steven Arons, UMass Amherst
Stephen Arons,
Professor of Legal Studies
University of Massachusetts -- Amherst

One of the strongest impressions that I get upon reading Mr. Feinberg's remarks is of his own heroism and immense humanity in a situation that is hedged in by all sorts of problems with the law that he administered and by the minefield of emotions planted on that horrible day in 2001. In my own work with the law and ethics of end-of-life care, I have sometimes seen-in doctors, nurses, and social workers-a similar pattern of practical wisdom, deep empathy with the pain of families facing incomprehensible loss, and humility about making tough choices in an imperfect world made even more imperfect by clumsy laws. But I have never seen this heroism and humanity operate on such an enormous scale. In rising to an almost impossible challenge, Ken Feinberg brought out, and modeled, the best in all of us.

My second strong impression is of the poignant comment on law and culture in America that the entire compensation endeavor makes. For this relatively short historical moment, it seemed that even with imperfect tools the Nation could rise to the heights of simple decency and activate its deep commitment to the common good. We dealt with incalculable grief and anger in ourselves without generating more grief and anger for others. Yet, as Mr. Feinberg and the tragedy of Hurricane Katrina make clear, this national process of healing the living and honoring the dead is unlikely ever to be repeated. And, as the exchange with former Oklahoma Governor Keating demonstrates, it is all-too-American that even in the wake of 9/11 our initial legal and institutional instincts were to cope with the burdens of death by employing the tools of economic and class stratification.

Ken Feinberg saw beyond this crass and divisive economic calculus. He saw the benefit of aiding families in expressing their grief and anger. He saw the need to honor the suffering of these families and to validate the memory of the dead. He tried to ameliorate the inequalities imposed by the statute. His skill and humanity made a flawed compensation program a success for victims and for the Nation. But his success may be the exception that proves a bittersweet rule of American law and culture.

Professor Robert Feldman, UMass Amherst

Robert S. Feldman
Department of Psychology
University of Massachusetts-Amherst

Kenneth Feinberg's work with the survivors of family members lost in the 9/11 tragedy touches on the most basic dimensions of the human condition: life, death, loss, grief. As a psychologist, I find that his observations are consistent with what we know about how the healing process proceeds. For instance, Feinberg instinctively understood how important and comforting it was for family members to be heard as they described their losses. It was only through speaking of their loss that they could come to grips with their grief and to give meaning to what had happened to their loved ones, and themselves.

I also was struck by the wisdom of Feinberg's observation that "no one is lying" when they described their losses. People often believe what they want to believe, and their expectations, hopes, and dreams inform the way they see the world. As someone who conducts research on lying in everyday life, I have repeatedly seen how people can come to believe profoundly things about others and themselves that have only the slimmest relationship to objective reality. But no matter-it is their own reality that shapes not only their memories, but also how they envision the world and their perceptions of what to expect from life. Feinberg's greatest achievement might have been his ability to balance those personal realities with the very concrete task of deciding issues of financial compensation.

Professor John Hird, UMass Amherst

John A. Hird
Professor and Chair, Political Science Department
Professor of Public Policy and former Director of the Center for Public Policy and Administration
University of Massachusetts -- Amherst

It is a pleasure to comment on the extraordinary account of public service offered by Ken Feinberg in his role with the September 11 Victim Compensation Fund as "Special Master" (a title that surely inspires envy.) As a student of public policy I'd like to add a few comments.

The first involves the nature of the fund itself, and what it suggests for future policymaking. It was widely considered to be a bailout of the airline and insurance industries, many of whom would have been bankrupt by the tragedy and its impacts in the ensuing months. This much is probably true. But what was too little recognized was the broader impact of the Fund; by eliminating the vast majority of law suits, it spared the nation of a steady drumbeat of accounts of protracted legal battles, wrenching stories, and what would have been viewed by some as greedy individuals cashing in. This would have been harmful for the individuals involved as well as for a nation trying both to remember and heal.

Second, it may surprise some people to learn that there is a voluminous public policy literature on the issue of "valuing life". Of course, most public policy issues deal not with "what is life worth?", but how much society should spend to prevent anticipated future deaths, such as through regulations that would prevent automobile or workplace accidents. In these instances, economists have developed measures of how much individuals through their everyday decisions - such as spending more money to buy a safer car, or not - reflect their own willingness to trade off money and future risks. When aggregated across all individuals, the presumption is that society should spend the same for every individual to prevent future deaths and not, for example, more to save rich people. Nonetheless, as Ken notes, our legal system takes a different approach, one based on future earnings potential, which was also the approach stipulated in the statute. I think it is ethically dubious, and Ken appears to as well, to compensate individuals at different levels, but that was required. Nonetheless, to Ken's credit many applicants- such as those where the victim was about to retire, or her earnings were low - at least received far more than the future earnings approach would have stipulated.

Third, Ken is right that this form of public policy was unique, but it does raise the issue of the circumstances under which it is appropriate to compensate individuals for past suffering, as well as the motivation for the 9/11 fund and not, for example, for the devastation of Katrina. For example, for those who view this fund as largely an industry bailout, it is worth considering whether, were the World Trade Center destroyed by bombs placed beneath it rather than by (corporate-owned) airliners, the same compensation fund would have been implemented absent obvious corporate targets of lawsuits.

Finally, we should reflect briefly on the individual who took on this job. I have never met Mr. Feinberg, but to my mind he is a public service exemplar. Ken didn't have to offer to meet all of the individuals involved, but he did. Ken didn't have to work on this - pro bono - for years, but he did. And he could have delegated these tasks, particularly meeting all of the individuals, to his staff; but he didn't. I have no idea what impact these actions had on the nation, but I'm sure that upon reflection the families who met with Ken - some of whom inevitably were disappointed by the financial outcome - must have appreciated his personal generosity in hearing their cases. For those developing and implementing public policy, it is so easy to forget the very immediate and personal impacts of our actions. Those in public service would do well, as Ken did, to meet some of the people whose lives they affect so profoundly. It would give public servants a new appreciation of the challenges and issues that people confront as well as the significant impacts they have on their lives.

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Guest Commentary

  • Stephen Arons, Professor of Legal Studies
    University of Massachusetts -- Amherst
  • John A. Hird, Professor and Chair, Political Science Department
    Professor of Public Policy and former Director of the Center for Public Policy and Administration
    University of Massachusetts -- Amherst
  • Add your own commentary!