Wednesday, May 15, 2013
There is a very nice, lauditory article on Kenneth Feinberg in the New York Times today: "One Man Disperses Charity After Tragedy in Boston."
The interesting thing about the compensation funds Feinberg is often asked to run are the way they bring distributive justice issues that are always imbedded in tort litigation to the surface. How should people with similar injuries be compensated when they have different life circumstances? Should weathier people receive less (or more) compensation than poorer people with similar injuries? Should emotional harm be compensated? What about fraud, the flip side of desert? These questions arise in ordinary tort litigation and in mass tort litigation as well. What any fund, whether created by an insurance company, a mass tort litigation, a charitable foundation or the government can do that ordinary decentralized tort litigation cannot is treat similarly situated people equally, which is the promise of the common law maxim that like cases ought to be treated alike and the foundation of the rule of law. But that raises difficult questions about what it means to treat people alike who are different from one another but suffered similar injuries.
Perhaps because these funds aren't governed by legal prinicples but instead by charitable ones, the issues of distributive justice, luck and social inequality are easier to discuss. There is no legally imposed baseline of how compensation is to be awarded, so this opens up our thinking about how things ought to be. These are the fundamental philosophical issues of tort law in the United States, and decision-maker's philosophy affects how the law and non-legal funds (like the One Fund Boston) operate in real life. Should these funds track the tort system? The 9/11 fund kind of did (not completely), and in his book "What is Life Worth?" Feinberg notes that he would have preferred to pay everyone a flat amount rather than distinguish based on earning capacity and other factors that end up reflecting societal inequalities. The tort system presently often reinforces existing social inequalities in compensation, should it? Similarly, as PTSD on the military side has become more recognized as disabling, will we reach a point where emotional trauma receives more recognition on the civil justice side as well?
Also notable, the article points out that the number of funds has accelerated in the 21st century. According to the article, between 1984 and 2010 Feinberg worked on five such funds, since then he's worked on five more.