THE MYTH OF MORAL JUSTICE IN-PRINT SYMPOSIUM: A BRIEF RESPONSE

THE MYTH OF MORAL JUSTICE IN-PRINT SYMPOSIUM: A BRIEF RESPONSE Kenneth R. Feinberg* If Thane Rosenbaum's The Myth ofmoraljustice' makes for interesting reading, so too do the stimulating responses from authors Michael Giudice, 2 Daniel Kornstein, 3 Stuart Scheingold, 4 Daniel Abuhoff, 5 and Adam Liptak. 6 Read together, the book and essays raise important questions about the moral foundation of American law and our nation's legal profession. Whether Rosenbaum's book constitutes a credible broadside on the very nature of law in our modern complex society or, instead, merely serves the function of gadfly, an irritant provoking us to reconsider some of our most basic preconceptions about the law and our legal profession, is open to debate. What I found of particular parochial interest is how Rosenbaum's thesis, and the reaction of the other authors, comport with my thirty-three month tenure as Special Master of the Federal September 11th Victim Compensation Fund ("9/11 Fund" or "Fund"). There are important lessons to be learned relevant to this symposium. * Kenneth R. Feinberg was appointed by the Attorney General of the United States to serve as the Special Master of the Federal September Ilth Victim Compensation Fund of 2001. In this capacity, he developed and promulgated the regulations governing the administration of the Fund and administered all aspects of the program, including evaluating applications, determining appropriate compensation and disseminating awards. Mr. Feinberg is the managing partner and founder of The Feinberg Group, LLP. He received his B.A. cum laude from the University of Massachusetts in 1967 and his J.D. from New York University School of Law in 1970. He is the author of numerous articles and essays on mediation, mass torts and other matters and has recently published his book entitled, WHAT is LIFE WORTH? THE UNPRECEDENTED EFFORT TO COMPENSATE THE VICTIMS OF 9/11 (PublicAffairs, 2005). 1 THANF ROSENBAUM, THE MYTH OF MORAL JUSTICE: WHY OUR LEGAL SYSTEM FAILS To Do WHAT'S RIGHT (2005) [hereinafter THE MYTH OF MORAL JUSTICE]. 2 Michael Giudice, Asymmetrical Attitudes and Particzpatory Justice, 4 CARDOZO PUB. L. PoL'Y & ETHICS J. 15 (2006). 3 Daniel J. Kornstein, The Myths of Thane Rosenbaum, 4 CARDOZO PUB. L. POLY & ETHics J. 33 (2006). 4 Stuart A. Scheingold, Essay for the In-Print Symposium on The Myth of Moral Justice, 4 CARDOZO PUB. L. POL'Y & ETHICS J. 47 (2006). 5 Daniel J. Abuhoff, On Morality and the Law: Truth, Justice, and the American Way, 4 CARDOZO PUB. L. PO'Y & ETHICS J. 67 (2006). 6 Adam Liptak, Filing A Heartfelt Appeal Against The Legal System, 4 CARDOZO PUB. L. POLY & ETHICS J. 11 (2006). 79

80 CARDOZO PUB. LAW POLICY &k ETHICS j [Vol. 4:79 The 9/11 Fund was created by Congress just eleven days after the terrorist attacks. 7 The statute, drafted in haste without the benefit of Senate or House hearings, was long on rhetoric and short on specifics. Congress delegated to a Special Master, an individual appointed by the Attorney General, the responsibility of designing and administering the rules and regulations of the Fund.' Awards issued by the Special Master were final and binding;.no individual appeals to the courts were permitted. Eligibility for generous compensation was limited to those individuals who lost a loved one on September 11, or who were physically injured but survived the terrorist attacks. Other victims of terrorist attacks in Oklahoma City, the African Embassy bombings in Kenya, on the U.S.S. Cole, or even at the first World Trade Center attacks in 1993 were ineligible. September 11, and September 11 alone, constituted a precondition for eligibility. The 9/11 Fund was unprecedented in its generosity. Over seven billion dollars in public tax-free compensation was paid to over 5,300 individuals. The average award for a death claim was around two million dollars; the average compensation paid to the physically injured was $400,000. Awards ranged from a low of $500 (paid to an individual who incurred a broken finger at the World Trade Center) to around $8,600,000 awarded a survivor with third-degree burns over eightyfive percent of her body. Although the Fund was voluntary, those who filed the claim agreed to surrender their right to litigate in court against the airlines, the World Trade Center, and other domestic institutions allegedly negligent in failing to prevent the attacks. Some ninety-seven percent of all eligible claimants filed with the Fund before the statutory deadline of December 22, 2003. By practically any account, this unique Fund, unprecedented in American history in the size and scope of awards, was a stunning success. Today, there are only around eighty-five people who have decided to litigate rather than seek compensation from the Fund. This brief explanation of the genesis of the Fund, and the statistical evidence of success, set the stage for a test of what is argued by Rosenbaum as well as Giudice, Kornstein, Scheingold, and Abuhoff. The rules and regulations of the Fund offer an appropriate opportunity to consider some of Rosenbaum's concerns about the 'alleged dichotomy 7 Air Transportation Safety and System Stabilization Act, Pub. L. No. 107-42, 115 Stat. 230 (2001), codified at 49 U.S.C. 40101 (2001). 8 Id.

2006] BRIEF RESPONSE TO THE MYTH OF MORAL JUSTICE 81 between the law and morality. At the same time, the actual administration of the Fund and the role that the legal profession played in assuring its success help provide an illuminating response to some of the theoretical arguments proposed by the symposium authors. The 9/11 Fund constitutes one specific example that can be evaluated in testing the rhetoric of the contributors to this symposium. In administering the Fund, I evolved from skeptic to believer when it came to the importance of "the therapeutic effect of storytelling," 9 permitting "individuals or groups to tell their story" of what happened."o This essential feature of Rosenbaum's thesis, that individuals must be afforded more meaningful participation in the legal process, accounts for a good deal of the Fund's success. Although the federal legislation that created the Fund made no provision for the Special Master to provide individual hearings for those family members and injured victims who requested an opportunity to be heard, Fund regulations gave each and every claimant an opportunity to personally address the Special Master face-to-face with no limitation on subject matter or hearing length. Despite my initial misgivings that such an opportunity to be heard would fuel emotion and promote delay and inefficiency in the processing of claims, it turned out that these hearings, providing meaningful participation by claimants, were an essential reason for the success of the Fund. I personally conducted almost 1,000 individual hearings with September 11 claimants; an additional 700 were hosted by designees from my staff. The free-wheeling, non-adversarial hearings were not limited to a dollars and cents discussion of appropriate individual awards. To the contrary, these hearings usually provided the claimant with an opportunity to vent about life's unfairness, the loss of a loved one, the moral intrinsic worth of a spouse, a child or a friend, and the black hole now existing in the survivors' lives following September 11. Claimants presented videos of weddings and bar mitzvahs, home movies, diplomas, medals, ribbons and certificates. All were offered to me as evidence of lives lost on September 11. Whether or not one agrees with Rosenbaum's contention, that failure to allow citizens to give their own account of the nature of a dispute 9 Kornstein, supra note 3, at 36. 10 Giudice, supra note 2, at 21.

82 CARDOZO PUB. LAW POLICY & ETHICS J [Vol. 4:79 explains the general dissatisfaction with the American legal system," it became clear to me that meaningful participation by claimants proved to be a major impetus for the decision to enter the Fund. Legal formalities and restrictive rules of evidence and procedure were subsumed by my determination to make the Fund accessible and friendly to grieving families and individuals. The hearings guaranteed that the law would not be "divorced from emotion." 1 2 The opportunity to be heard provided the very type of "catharsis" apparently overlooked by Rosenbaum but pointed out by Kornstein. 13 The hearings were essential to the Fund's success. The 9/11 Fund also provided an important opportunity for lawyers and the legal profession to come to the aid of September 11 families in need. Over 1,800 individual claimants were represented pro bono by Trial Lawyers Care, a national organization established by the American Trial Lawyers Association solely for the purpose of representing September 11 families and victims." The willingness of lawyers throughout the Nation to represent these families without any compensation stands as one of our profession's finest moments. This unique effort is relevant to this symposium in two important respects. First, it offers specific corroboration for the argument that "cause lawyers are indeed responding to their moral muses and that in giving themselves 'something to believe in' beyond the adversary process as such, cause lawyering does make legal practice more fulfilling just as Rosenbaum claims."" Just as importantly, such representation helps minimize the "clear and distinct polarization of attitudes between the legal profession and the public." 1 6 Empathy and compassion rather than contingency fees and the adversary system helped define the 9/11 Fund and the role of lawyers in assuring its success. Rosenbaum may argue that such a unique alliance between lawyer and client is temporary and constitutes only a limited partnership tied to the unprecedented circumstances of 9/11. However, it is a precedent that can be used by Giudice and Scheingold in attacking Rosenbaum's thesis. Without the commitment and dedication of I" See Giudice, supra note 2, at Part II, see also THE MYTH OF MORAL JUSTICE, at 34-35, 37, 98. 12 Kornstein, supra note 3, at 40. 13 Id. at 42. 14 Trial Lawyers Care homepage, http://www.91i1lawhelp.org (last visited Dec. 27, 2005). 15 Scheingold, supra note 4 at 48. 16 Giudice, supra note 2, at 16.

2006] BRIEF RESPONSE TO THE MYTH OF MORAL JUSTICE 83 lawyers investing in the "cause" that was the 9/11 Fund, it is doubtful that the Fund would be considered such a success. Finally, it is important to cite the 9/11 Fund in discussing the important debate between Rosenbaum and Scheingold surrounding "the culture wars." Scheingold maintains that "one of the unintended consequences of the inclusive citizenship which was the objective and an initial result of rights advocacy has been to revitalize moral narratives of exclusion." 1 7 However, at least when it comes to the 9/11 Fund, the opposite occurred. Instead of advocating "exclusion," the Fund invited participation by a diverse group of individual claimants-gays, unmarried domestic partners, fiancees, families of undocumented workers, foreign citizens-anybody who satisfied the broad definition of eligibility under Fund rules and regulations. The 9/11 Fund made no distinctions on the basis of race, gender, creed, or sexual preference. Instead, it accepted the victims' intentions as expressed in his or her will; in the absence of a will, the Fund took a neutral stance, following the intestacy laws of the September 11 victims' domiciles. Although this neutral principle precluded legal recognition of those claimants not formerly deemed to be a legal spouse, almost all disputes between and among claimants were satisfactorily resolved through a process of mediation or informal negotiation among competing claimants. Simply stated, Scheingold's "culture wars" were avoided in a successful bipartisan effort to minimize controversy and promote harmony among competing claimants. One can argue whether the design and implementation of the 9/11 Victim Compensation Fund significantly undercuts the major arguments advanced by Thane Rosenbaum in The Myth ofmoraljustice. He might argue that the Fund constitutes an aberration, a unique response to an unprecedented historical event which does not undercut his thesis. Or, he may argue that the Fund is, itself, immoral in that it reduces victims to numbers." I tend to disagree. Instead, I believe that the Fund is simply the most current visible example of the relationship between morals and law, between the public which consumes justice and our legal profession which helps to provide it. In this regard, I tend to disagree with Daniel Abuhoff who argues that "a legal system like ours is not animated by any particular moral system, but rather by a consensus 17 Scheingold, supra note 4, at 63. 18 See THE MYTH OF MORAL JUSTICE, supra note 1, at 64-65.

84 CARDOZO PUB. LAW POLICY & ETHICS J [Vol. 4:79 on the desirability of individual freedoms."' 9 Our "individual freedoms" are grounded in the moral fabric of the community; there may be disagreements at the margins over the meaning and scope of this common morality, but it is a fundamental mistake to attempt to divorce law from its moral foundations. I agree with authors Giudice, Kornstein, and Scheingold that Rosenbaum's pessimism is belied by the law as a diverse social instrument for promoting community morals and that our profession succeeds more often than not in advancing such an agenda. The September 11th Victim Compensation Fund demonstrated the best in the American character. It is a clear example of what Rosenbaum refers to as "moral repair," and satisfies Abuhoffs concerns about "therapeutic potential" and "likely effect on justice." 2 0 The 9/11 Fund helped engage 9/11 families and victims in a type of therapeutic healing, using law to demonstrate the nation's solidarity and social cohesion with the victims. At the same time, it helped promote "justice," at least insofar as compensation acts as a surrogate for loss in our society. 19 Abuhoff, supra note 5, at 67. 20 Id. at 74.