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On the morning of Sept. 11, Kenneth Feinberg had just left the mass tort class he teaches at University of Pennsylvania Law School when he heard the news. Hopping his usual train for the return trip to Washington, D.C., he got only as far as Wilmington, Del. From there, he and a few other travelers split the cab fare for the two-hour drive down Interstate 95. In life as in law, Feinberg knows how to improvise. A couple of days later, when he heard about congressional plans to offer victims’ families government compensation in return for not going to court, Feinberg was on the phone in a wink. “I called my old friend Chuck Hagel,” recalls Feinberg, dropping the name of Nebraska’s senior senator. “He said, ‘I know why you’re calling — you’re the man for the job.’” The “job” is special master of the Sept. 11th Victim Compensation Fund of 2001. For that, Feinberg certainly has the bona fides. His eponymous mediation firm has grabbed headlines for brokering settlements over claims centered on everything from Agent Orange to asbestos and the Dalkon Shield intrauterine device. Still, why would he accept, much less lobby for, such a position? True, his role has brought The Feinberg Group, LLP, free publicity. But he’s serving without pay. He’s had to hand over his entire book of business to his colleagues. And he’s been forced to endure a ceaseless barrage of complaint born of a mass murder. Feinberg’s answer comes quickly, and as almost always, in a stentorian Massachussetts cadence. “I knew going in that this process would be filled with distraught, angry, sorrowful people; that there’d be angst and depression. But I’d do it all again, exactly as I’ve done it.” There has been, of course, ample sorrow and angst. But also he’s won a fair amount of grudging trust from the families of the victims who are waiting for his judgments, hoping that they won’t be scarred again. Thus far only about 650 of 3,300 families have filed their claims, many assisted in the complicated process by volunteer advisers from Trial Lawyers Care Inc., a group created after 9/11. The families are closely watching the first awards from Feinberg, looking both for guidance and reassurance. The dead are honored equally only in memory. The parents of a dishwasher at Windows on the World will receive a compensatory award that values their loss as far less than that of, say, the parents of a high-rolling bond trader. But for the public and political nature of the loss, such a standard equation would hardly be noted. Can Feinberg’s fund rectify socioeconomic disparity? Was that part of the Congressional mandate, anyway? Feinberg answers such questions without a hint of defensiveness. Although he anticipates that the first two dozen awards he would announce — scheduled for late August — would range from roughly $500,000 to $3 million, he also says that the statute and his related orders from the attorney general gave him plenty of discretion to “do the right thing.” And he adds that the political class was not pressuring him to rein in the program’s costs, which are theoretically unbounded. “Some of the survivors whose family members were at the high end of earning have raised some legitimate questions,” he says. “Our charts stopped at those earning $231,000, because that took care of 98 percent of the universe [of victims]. But I can envision the family of a stockbroker or bond trader making a successful argument for $5 million or $6 million.” On the thorny issue of single decedents, whose so-called consumption rates would have declined had they ever gotten married and whose claimants (typically parents or partners) might therefore make a case for higher awards, Feinberg’s tone is matter-of-fact. “I believe we assumed that the person who died would continue that lifestyle, but that assumption can cut both ways.” In the end, he says, this rough form of civil justice will succeed. He predicts that the survivors will file with him as the deadline of December 2003 nears. “If you want to really gauge the success of this thing,” he says, “it resides in the fact that only 10 suits have even been brought at this point — and a couple of those filers are now trying to get back into my program. The early vitriol and invective have diminished. All in all, it reinforces my faith in American democracy and the rule of law. It really does.” But Feinberg is emphatic that his plan is an extraordinary response to an extraordinary crisis. He’s not trying to erect a substitute for the civil courts. “Tort law is part of the fabric of American life,” he insists. “It’s not going anywhere.”

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