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Deciding who gets what after a tragedy

Attorney Kenneth Feinberg discusses the difficulties in determining how much to pay victims after tragedies like 9/11 and the BP oil spill.

Image of Who Gets What: Fair Compensation after Tragedy and Financial Upheaval
Author: Kenneth R. Feinberg
Publisher: PublicAffairs (2012)
Binding: Hardcover, 240 pages

Update: Kenneth Feinberg has been hired to advise General Motors about compensation of victims killed or injured in cars that the company has recently recalled. Below is Kai Ryssdal's 2012 interview with Feinberg.

Imagine that your job was to put a dollar amount on a life. Or on a livelihood. Or on what fair pay might be for a CEO of a bank bailed out with taxpayer dollars. Five times in the past 30 years, Kenneth Feinberg's been asked to do exactly that.

Feinberg was enlisted after 9/11, the BP oil spill, and the financial crisis. His book about how he came to this unusual calling is called "Who Gets What."

Until Feinberg became the special master for TARP compensation after the bank bailout, all of his assignments had focused on some kind of tragedy. There was 9/11, there was Agent Orange, and with TARP position, he dealt with something that was fundamentally man-made and didn't involve huge loss of life. He says that was a big change for him:

Totally. Totally different. That was Congress' populist revenge on Wall Street. That was, deciding what corporate officials ought to be paid, was pursuant to a statute where Congress basically said 'If we're going to provide TARP public taxpayer bailout money for Citigroup and Bank of America and AIG, well, by God, we're going to fix their pay and we're going to ask somebody to do that. And the Secretary of the Treasury asked me to do that, so I did it. This was symbolic. This was a sideshow compared to some of the other steps undertaken by Treasury, and the SEC, FDIC and the Federal Reserve to try and institutionalize limitations on pay. I'm not sure how much actual impact it had -- other than to those people, so it'll remain to be seen.

But what is it about the need we have as a society -- when there is injury or harm done -- to compensate, to throw money at the problem? Feinberg says its part of history:

It's been that way since the founding of the republic. We're a capitalist society. We believe in the free market system. We believe in money as the medium of exchange -- not barter, not a "thank you" or "I'm sorry." In our courts, from the very beginning, money is the medium that is used to rectify wrong or damage. And it's always been that way. I think that it's part and parcel of our heritage that when a wrong is committed, one critically important way to try and balance the scales is through the payment of compensation. Clearly in times of public tragedy, one way or another, our money invariably enters into the picture.

Feinberg says he wraps up every assignment hoping in a way that he'll never have to do it again.

"You say to yourself, 'I hope and pray that there isn't the type of national trauma resulting from some disaster -- financial upheaval, tort tragedy, oil spill or a terrorist attack -- where I won't be called on to do this again,'" he says, "But if you're fatalistic about these things, as I have become, you realize that sooner -- probably sooner rather than later -- there will be some other call by public officials for a compensation program."

Kai Ryssdal: Imagine that your job was to put a dollar amount on a life. Or on a livelihood. Or on what fair pay might be for a CEO of a bank bailed out with taxpayer dollars. Five times in the past 30 years Kenneth Feinberg's been asked to do exactly that. After 9/11, the BP oil spill, and the financial crisis to name three. His new book about how he came to this unusual calling is called "Who Gets What." Thanks for being here.

Kenneth Feinberg: Thank you.

Ryssdal: Until you became the special master for TARP compensation after the bank bailout, all of your assignments, if you will, had been some kind of tragedy. There was 9/11. There was Agent Orange. And now you have this thing that was fundamentally manmade and didn't involve huge loss of life. Was that different, that TARP compensation job?

Feinberg: Totally. Totally different. That was Congress' populist revenge on Wall Street. That was, deciding what corporate officials ought to be paid, was pursuant to a statute where Congress basically said if we're going to provide TARP public taxpayer bailout money for Citigroup and Bank of America and AIG, well, by god, we're going to fix their pay and we're going to ask somebody to do that. And the secretary of the Treasury asked me to do that, so I did it. This was symbolic. This was a sideshow compared to some of the other steps undertaken by Treasury, and the SEC, FDIC and the Federal Reserve to try and institutionalize limitations on pay. I'm not sure how much actual impact it had -- other than to those people, so it'll remain to be seen.

Ryssdal: This is kind of a metaphysical question, I guess, but what is it about the need we have as a society -- when there is injury or harm done -- to compensate, to throw money at the problem?

Feinberg: It's been that way since the founding of the republic. We're a capitalist society. We believe in the free market system. We believe in money as the medium of exchange -- not barter, not a "thank you" or "I'm sorry." In our courts, from the very beginning, money is the medium that is used to rectify wrong or damage. And it's always been that way. I think that it's part and parcel of our heritage that when a wrong is committed, one critically important way to try and balance the scales is through the payment of compensation. Clearly in times of public tragedy, one way or another, our money invariably enters into the picture.

Ryssdal: I imagine you wrap up every one of these assignments hoping you'll never have to do it again?

Feinberg: That's absolutely right. You say to yourself, as I say at the end of the book, I hope and pray that there isn't the type of national trauma resulting from some disaster -- financial upheaval, tort tragedy, oil spill or a terrorist attack -- where I won't be called on to do this again. But if you're fatalistic about these things, as I have become, you realize that sooner -- probably sooner rather than later -- there will be some other call by public officials for a compensation program.

Ryssdal: Kenneth Feinberg, his most recent book is called "Who Gets What." Thanks very much for your time, sir.

Feinberg: Thank you.

About the author

Kai Ryssdal is the host and senior editor of Marketplace, public radio’s program on business and the economy.
Image of Who Gets What: Fair Compensation after Tragedy and Financial Upheaval
Author: Kenneth R. Feinberg
Publisher: PublicAffairs (2012)
Binding: Hardcover, 240 pages

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