How can ADR alleviate long-standing social problems?

• Author: Feinberg, Kenneth R.

KEYNOTE ADDRESS

Thank you very much.

The Dean said that academic criticism was leveled primarily at the statute. (1) I can assure you that the families did not make that distinction. The families did not want to know, "Well, I'm constrained by the statute." That approach got me nowhere in trying to explain the vagaries of this law.

Four different reasons bring me to Fordham.

The first and most important reason is that John Feerick asked me, and one does not say no to John Feerick. You think you can say no, you brace yourself to say no, but it's the way he asks you to do something: "Will you find time? Can you possibly? I'd be so grateful." By the time he is finished asking you, you are ready to attend the class for a week. The second reason is to return to Fordham, this fabulous school and this great institution. I am glad to be part of anything that Fordham does. The third reason: I find the subject matter extremely cutting edge. I do a lot of alternative dispute resolution, but it has never been quite packaged and posited in terms of social justice and individualized justice. The subject intrigued me.

And finally, I am here to thank people. This is a rather sophisticated crowd. The 9/11 Fund is now history, but this is an opportunity to thank the people from Safe Horizons, who helped us immeasurably in resolving individual 9/11 claims, and the members of the bar. Two thousand people in the 9/11 Fund were represented pro bono by members of our legal profession. (2) We would have never been successful without the bar, and I am here to thank everyone who made that possible.

I will try to explain how the 9/11 Fund was a perfect example of today's forum, "ADR as a Tool for Achieving Social Justice," and, specifically, the main panel this morning on "Mechanisms for Creating Individual Justice in the Face of Disaster." We have a very sophisticated audience here today. I see not only John Feerick, who knows as much about ADR as anybody alive, but my Deputy Special Master Jordie Feldman. Jordie was with me for thirty-three months helping to design, implement, and administer the program. Peter Steenland, the former head of ADR at the Department of Justice, is here, with whom I've worked and who really understands these issues. I must also point out the presence of Michael Cardozo, the Corporation Counsel of the City of New York. I got to know Michael very well during the 9/11 Fund. We set up a hotline, and we must have telephoned each other three times a week about the Fund and its impact on New York City. He is an extraordinary public servant. I am very much in Michael Cardozo's debt and have formed a friendship with him that will last a lifetime. He helped make the Fund work, and our collective coordination had a practical impact on this City and on thousands of lives in this City.

THE 9/11 FUND

Since you all know a lot about 9/11, let me briefly remind people about the statute. Eleven days after 9/11, Congress passed a law, signed by the President, which said that anybody who lost a loved one on 9/11 as a result of the attacks, or anybody who was physically injured in the attacks, could voluntarily waive their right to litigate against domestic would-be tortfeasors--the airlines, the World Trade Center, the Port Authority, Mass. Port, security guard companies, Boeing Aircraft, et cetera--and instead could participate in a no-fault, administrative, legislatively pronounced compensation fund program. (3) The statute said: you don't have to, but if you want to, come on in and get your money. (4)

The money was entirely funded by you, the taxpayer. Not a nickel came from private sources, like the airlines or the World Trade Center. It was all paid for by the taxpayer, and the awards were unprecedented. The statute did not specify how much to give to each claimant, but the statute did require that I take into account the economic wherewithal of the victim-like tort based economic loss. (5) For example, what would the victim have earned but for 9/11? That calculation guaranteed huge awards, with each individual getting a different amount of money. It was very provocative, very divisive, and very controversial. But the result was that the average award that we paid out under this program for a death was about $2 million, tax-free. (6) The average award for a physical injury was about $400,000, tax-free. (7)

As you all know, there were not many physical injuries arising out of 9/11--you either got out of those buildings and planes or you did not. The number of serious physical injuries on 9/11 was on the order of several dozen, and they were mostly burn victims. The majority of the physical injury claims that we paid occurred after the attacks, such as the 2,000 respiratory damage claims that we paid arising out of the cleanup at the World Trade Center. Those people all got paid, but that was post-9/11. Fortunately, there were only a handful of physical injury claims on 9/11.

The smallest award we paid was $500 for a broken finger at the World Trade Center. The largest award we paid, $8.6 million, was given to a survivor who came to see us with third-degree burns over eighty-five percent of her body. Seven thousand, four hundred and three people applied, five thousand, three hundred people were found eligible, and $7 billion of your money was spent under the program. (8)

There was no appropriation for this program. (9) Congress in its wisdom delegated the authority to one person, appointed by the President and the Attorney General--it turned out to be me--and said, "Ken, whatever you authorize, it will be paid out of petty cash from the U.S. Treasury." Congress did not know what this program would cost. And we implemented the program over thirty-three months. (10)

INDIVIDUALIZED JUSTICE IN THE 9/11 FUND

How did the Fund promote individualized justice as...