From Gimlet, I’m Alex Blumberg and this is Without Fail, the show where I talk with artists, athletes, entrepreneurs, visionaries of all kinds, about their successes and failures, and what they’ve learned from both.

And today on the show I’m talking to someone who has... again and again... taken on an impossible job. 

ALEX BLUMBERG: First of all, just tell me who you are.

KENNETH FEINBERG: My name is Kenneth Feinberg, a lawyer. And I have the unenviable tasks periodically of compensating victims of tragedy and misfortune.

Kenneth Feinberg. You might know his name. If you do, you probably heard it in connection with tragedy, and in connection with something we often do, in America, when tragedy strikes. We distribute money. 

In the case of our greatest calamities, it’s often Ken Feinberg who is tapped to figure out where that money should go -- who should receive it, and how much they should get. He’s the one who’s called on to review the evidence and calculate the amounts. And the events he’s been involved with in this way make for a long, grim list. 

KENNETH FEINBERG: The September 11 Victim Compensation Fund, the Virginia Tech shootings, the Deepwater Horizon oil rig explosion in the Gulf of Mexico, Sandy Hook Elementary School in Connecticut and the 25 first graders shot and killed. 

Also the Boston Marathon bombings. The General Motors ignition switch failure compensation program. Mass shootings. In Aurora, Colorado, at the Pulse Nightclub in Orlando, the country music festival in Las Vegas.

Sometimes the money Feinberg distributes has been donated, and it’s given out as charity. Other times the compensation programs he’s in charge of are meant to work as alternatives to the legal system. They’re created by companies or other entities. 

And what I wanted to know … how do you end up with this as your job? And when it is your job … what does it do to you? 

Kenneth Feinberg said he didn’t start out with this as a career goal. He was drawn into it by accident. It all started in the late 70s, veterans who came back from Vietnam started talking about health problems they were having -- cancers, neurological disorders. Problems they believed were caused by exposure to the chemical Agent Orange. Agent Orange is an herbicide and was used to kill vegetation and millions of gallons of it had been sprayed over Vietnam, Cambodia and Laos. Eventually, veterans began to file lawsuits against the handful of companies, like Dow and Monsanto, that had manufactured the chemical for the government. The cases gained steam and grew into a class action lawsuit, representing 250 thousand veterans.

The dispute came to a head in 1984. That is when Ken Feinberg enters the story. At this point he was working as a lawyer after having served as Senator Ted Kennedy’s chief of staff.

KENNETH FEINBERG: The case was pending in federal court in Brooklyn, New York, before a very distinguished jurist, Judge Jack B. Weinstein. Federal judge. He called me and said, "Ken? You know politics. I need a smart person to be appointed special master mediator to try and resolve this products liability litigation with the chemical industry that manufactured the herbicide. And then I want you to design and administer a claims program." Well.

ALEX BLUMBERG: How did you feel when you got that call?

KENNETH FEINBERG: I was both gratified that Judge Weinstein thought of me that highly...

ALEX BLUMBERG: Uh-huh.

KENNETH FEINBERG: ... that I could do this job. I told him I had never mediated a case in my life. I'm not sure I'm up to this task. He said, "Yes, you are. You'll be perfect for this." And I was off to the races after that.

ALEX BLUMBERG: Why did Judge Weinstein think that a special master was needed in this case? You said he needed somebody who knew politics. Talk more about that. 

KENNETH FEINBERG: He was concerned that if the Vietnam veterans who had suffered so as a result of the war and its aftermath frankly, that he was concerned that if there were a trial the Vietnam veterans might very well lose the case.

ALEX BLUMBERG: Oh.

KENNETH FEINBERG: He wanted the case settled. He wanted some sort of concrete victory for the class of Vietnam veterans who had suffered so, both during the war and after. And he was hoping that somebody with the -- the competence and the political savvy to help negotiate a settlement, help mediate a resolution, would be in the best interest of everybody. He couldn't do it. He was going to try the case.

ALEX BLUMBERG: Right.

ALEX BLUMBERG: So he was essentially saying, like, if this thing goes to trial it could be bad for the veterans and thus bad for the country.

KENNETH FEINBERG: Yep. You never know what a jury will do.

ALEX BLUMBERG: Uh-huh. And he just didn't want to take that risk on something that was so politically sensitive as, basically, the legacy of Vietnam, which was going to be sort of on trial here in some ways.

KENNETH FEINBERG: Exactly.

ALEX BLUMBERG: So you accepted the job, and how far apart were the two sides? Like, what were the -- what was this class of 250,000 veterans asking for, and what was -- what were the -- what was the -- the group of chemical companies offering?

KENNETH FEINBERG: In the initial meeting that I had with the chemical industry and with the Vietnam veterans, I said to the Vietnam veterans, "What do you want to resolve this litigation?" And they said, "Our demand is $1.2 billion."

ALEX BLUMBERG: Uh-huh.

KENNETH FEINBERG: I then turned to the chemical industry and I said to the eight representatives of Dow and Monsanto and the others, "What are you collectively willing to pay?" And they said, "We'll pay a total of $25,000." And I then said, "Well, we're making progress now."

ALEX BLUMBERG: [laughs]

KENNETH FEINBERG: "We're closing the gap. We're -- we're starting to move in the right direction."

ALEX BLUMBERG: And -- and I think in -- in, you know, money is always a proxy for feeling. And I understand what the veterans were saying when they were saying, "We want $1.2 billion." They’re saying like, "We have suffered for this war, and we -- we -- we died and got cancer because of this -- of this chemical. And we want that recognized. We want that pain recognized, and we want that sacrifice recognized. And $1.2 billion seems like the right way to recognize that." What were the chemical companies saying with their initial offer? What was -- what was the feeling that was manifest in that $25,000 offer?

KENNETH FEINBERG: This is a hold up. No Vietnam veteran is going to be able to demonstrate through medical causation that their malady, their illness was caused by Agent Orange exposure in Vietnam. This is nothing more than extortion. We shouldn't have to pay it. Our offer is an accurate barometer reflection of the weakness of their case. That was the opening position of the chemical industry.

ALEX BLUMBERG: And so they were saying, like, "This is -- this is extortion, essentially. You guys are, like, trying to use public opinion to get money, basically."

KENNETH FEINBERG: That's right. 

ALEX BLUMBERG: That was their position. Got it.

KENNETH FEINBERG: That's right. That was their opening position. They soon came to realize that from a purely financial point of view, they might lose the case. And it won't be $1.2-billion, it might be $10 or $12 billion. They could lose the case. The judge made it very clear to the chemical industry that there's going to be a trial here. You have already tried to dismiss the case on grounds that there's no medical proof. I've rejected that claim. And we're going forward with a Brooklyn jury, and you better re-evaluate your position in light of the risks that you take going to trial. 

In the end, Ken Feinberg did it. He pulled off the thing that everyone had thought was impossible and got the two sides to an agreement. The chemical companies agreed to pay 180 million dollars - close to half a billion in today’s dollars. It was the largest product liability claim ever paid. 

Settling the case was a big deal, of course, but the thing that Ken Feinberg would later become famous for, that came next. He had to come up with a plan for distributing the money. He decided that the veterans who were the most disabled and the survivors of those who had died would get direct payouts. And then tens of millions of dollars would go to social service programs intended to help veterans.

Eventually, in the wake of all this, Feinberg established a firm focused on dispute resolution, where he negotiated things like asbestos and other product liability claims. And that’s what he was doing on September 11, 2001, the event that led to the most public and most difficult job of his career.

That’s coming up after the break. 

BREAK 1

Welcome back to Without Fail and my conversation with Ken Feinberg. 

In the days after 9/11, Congress created a fund to compensate victims and survivors of the attacks. The law authorizing the fund was thin on specifics. It didn’t give much guidance on how to calculate payouts, and it didn't define key terms. For example, it said to be eligible, you had to be quote present in the immediate vicinity of the attacks... but it didn't say what that exactly meant. The law did authorize the appointment of a special master who would determine which victims of the attacks should receive compensation and how much they should get. The fund was uncapped. The money would be paid straight from the U.S. Treasury. 

It was an unprecedented fund—and one that Feinberg felt he was uniquely qualified to administer. 

I called my old boss Senator Kennedy and told him, based on what I've read in the paper, this is something I'd be interested in doing. He said, "You're absolutely the perfect person to do this." He then called President Bush and suggested me. President Bush contacted Attorney General John Ashcroft. Ashcroft interviewed me, and offered me the position.

ALEX BLUMBERG: What was that interview like?

KENNETH FEINBERG: The interview was fabulous. He said he liked the idea of a Kennedy person doing this because there was a very substantial likelihood that the program would be a bust. An emotional disaster. And the idea of somebody far removed from the Bush administration would be perfect. If the program worked, he selected me. And if it failed, what do you expect from a Kennedy person? And he was very accommodating. I told the Attorney General I would only take on this assignment pro bono, without compensation. I did not want to get paid for this patriotic duty. And he was stunned by that. He said that's fabulous, and offered me the position.

ALEX BLUMBERG: So you -- the two big things you had to determine was, like, was who was eligible and how much would they get?

KENNETH FEINBERG: That's right.

ALEX BLUMBERG: So how did you go about designing that? How did you go about answering those questions?

KENNETH FEINBERG: Not difficult at all. First of all, for the -- for the -- for the 2,800 who died, just show me a police or a military death certificate. Or an airplane manifest as to who were on the four planes. Determining eligibility got a little tricky with physical injury.

ALEX BLUMBERG: Uh-huh.

KENNETH FEINBERG: What constitutes the "immediate vicinity" of the World Trade Center? Mr. Feinberg, I was hanging a painting in my apartment on East 96th Street, four miles from the World Trade Center, when I saw the planes hit the buildings. Well, I fell off the ladder and broke my leg. Pay me.

ALEX BLUMBERG: Did somebody actually make that argument?

KENNETH FEINBERG: Of course! Sorry, you're not in the immediate vicinity of the World Trade Center.

ALEX BLUMBERG: But if that person had been hanging their picture within a quarter mile of, like -- that -- if they'd been hanging their picture the next building over, they -- they would have been?

KENNETH FEINBERG: I think so.

ALEX BLUMBERG: Interesting.

KENNETH FEINBERG: I think so. If they fell off the ladder when the planes hit the building and they lost their balance, that's something we would probably pay. Rather arbitrary I must say. But we had to make some decisions based on the -- the clear language of the statute which guidance -- guided our decision-making.

Like Feinberg said, coming up with a framework to make the decisions wasn’t the hard part. Feinberg had actuarial tables and centuries of tort law to guide him. What ended up occupying much of his thinking was something else...a promise that he made to everyone seeking compensation from the fund.

KENNETH FEINBERG: I stated in the claim form that they had to fill out and I stated on the website and I stated over and over again publicly on television and the radio, anybody who voluntarily wants to come and see me privately, I will see them.

He ended up holding hundreds and hundreds of those private meetings with survivors of the attacks and family members of those who had died. 

ALEX BLUMBERG: What was the first conversation that you had like? Do you remember the very first one?

KENNETH FEINBERG: 24-year-old woman. I remember it like it was yesterday. A 24-year-old woman came to see me, sobbing. "Mr. Feinberg, my husband died in the World Trade Center. He was a fireman. And he left me with our two children six and four. Now, I've applied to the fund and you have calculated that I'm going to get $2.8-million tax free. I want it in 30 days." I said, "Mrs. Jones, 30 days? Why do you need the money in 30 days?" She said, "My husband died and left me with our two children, six and four. Now, Mr. Feinberg why 30 days? I have terminal cancer. I have 10 weeks to live.

ALEX BLUMBERG: Ugh!

KENNETH FEINBERG: "My husband was gonna survive me and take care of our two children. Now they're gonna be orphans. I have got to get this money while I still have my faculties. I've gotta set up a trust. I've gotta find a guardian. We never anticipated this."

ALEX BLUMBERG: Oh!

KENNETH FEINBERG: Well, I ran down to the Treasury, we accelerated the processing of her claim, we got her the money, and eight weeks later she died, you see?

ALEX BLUMBERG: Wow.

KENNETH FEINBERG: 950 similar stories. 

ALEX BLUMBERG: That was your first conversation?

KENNETH FEINBERG: Yeah. You think you're ready for anything and you're not.

ALEX BLUMBERG: And after that conversation, you had to have another one, and another one that very same day?

KENNETH FEINBERG: Sometimes eight, 10 a day. Sometimes one or two a day, depending on the schedule.

ALEX BLUMBERG: What other kinds of things were people -- did people bring to those conversations?

KENNETH FEINBERG: "Mr. Feinberg, I lost my wife at the World Trade Center. We were married for 25 years. And the reason I'm here is I want to show you a video of our wedding 25 years ago." "Well Mr. Jones, you don't have to show me that video. It'll only be very emotional and ..." "You're gonna watch. I want you to see what those bastards did in taking my angel from me." And he played the video. 

ALEX BLUMBERG: Did you feel like you were getting better at these conversations as they were going forward?

KENNETH FEINBERG: Oh, I think so. You start off with sort of a lawyer's mentality about here's the realities of the case, and the -- and you quickly morph into being more of a priest or a rabbi as you listen to these.

ALEX BLUMBERG: Give me an example of the difference. Like, what would you say.

KENNETH FEINBERG: You know, // "Mrs. // Jones, you're here to talk about your -- the death of your husband. You're receiving $3-million. It seems to us that that's the appropriate amount. And sorry about your husband. And ..." "Mr. Feinberg, with all due respect I'm not here to talk about $3-million, and I'm here to talk about the impact of my husband on my life and -- please let me express my views." 

KENNETH FEINBERG: You learned to say less and less. You're not -- you want to express empathy? Express empathy by listening. I remember at the Pentagon, an 82-year-old man came to see me, tears streaming down his face. And he said to me, "Mr. Feinberg, I lost my son in the Pentagon. When the plane hit the building, my son escaped safe. But he thought his sister, who also worked in the Pentagon, was trapped. So he went back in to look for her. She had escaped through a side door. She was safe. He died looking for her. Now Mr. Feinberg, my life is over. I'm just going through the motions. A father should never have to bury a son." And I looked at him, and in an attempt to express empathy I said, “this is terrible. You lost your son. I know how you feel." Well, he looked at me. He said, "Mr. Feinberg, you got a tough job. I don't envy what you have to do, but let me give you a little bit of advice: don't ever tell somebody like me that you know how I feel. You have no idea how I feel, and it's condescending, it's hollow, and it's pretentious. And I wouldn't do it if I were you." Well I never did that again. You learn the hard way. You make mistakes every time, and you try and learn from those mistakes.

ALEX BLUMBERG: Were you just crying all day long?

KENNETH FEINBERG: Never in public. Sometimes in private. The horror of it. 

ALEX BLUMBERG: What would you do? They would leave and then you would close the office door, and ...?

KENNETH FEINBERG: You'd just change the subject. You'd bite your lip, you'd think of something nice. You'd -- anything you can do. You can't -- you're a professional, and you don't want to lose control of the whole process. I'd start crying, everybody's going to be crying. You can't -- but plenty of times in private you shed tears.

ALEX BLUMBERG: Uh-huh... how did you keep going back day after day?

KENNETH FEINBERG: Well, you're a professional. You're asked by the President of the United States to do this. It's a patriotic duty. 

ALEX BLUMBERG: I know why you did it. I'm saying, how?

KENNETH FEINBERG: Well, I mean you haven't -- you know, you offered to do this. You signed up for it. And you better have a very loving family, which I do, which supported me.

ALEX BLUMBERG: Uh-huh.

KENNETH FEINBERG: Very great friends. You take breaks during the day, and you go outside and you walk around the block and you watch little kids playing in a playground, laughing and happy. You buy an ice cream cone, you sit on a bench in the park and you try and clear your head. And at night before you go to bed, you listen to classical music, to opera. The height of civilization, and try and compare that with the horrors of civilization that you're dealing with during the day. You get through it. You -- you learn that human nature being what it is, people react in myriad different ways to tragedy.

ALEX BLUMBERG: What were some of the surprising or different ways that you saw people react?

KENNETH FEINBERG: Some people react with anger. Life is unfair. Other people are more resigned. More -- more understanding. 

KENNETH FEINBERG: I had one woman I'll never forget. One woman out of the thousands who was rather buoyant and joyous over the death of her husband. She came to see me. She said, "Mr. Feinberg, my husband abused me so during our lifetime together. Three or four times I left him but I came back. Now he's dead. He's worth more dead to me than he ever was alive. I'm getting $3 million. Thank you very much. I'm going to take a vacation."

ALEX BLUMBERG: Wow!

KENNETH FEINBERG: You never know. 

ALEX BLUMBERG: Wow!

KENNETH FEINBERG: Yeah.

ALEX BLUMBERG: That's a nice bright spot in your day at that point.

KENNETH FEINBERG: Yeah, that one we were -- we -- we -- we didn't suffer too much on that one.

ALEX BLUMBERG: Uh-huh.

KENNETH FEINBERG: We were rather shocked but that was -- that was her.

ALEX BLUMBERG: For the people who were angry, who were they angry at?

KENNETH FEINBERG: The government. Well, I mean they were angry at the world. They were angry at God. They were angry at any number of things: fate, fortune. Varies from individual to individual.

A claimant would come in very angry and say, "I lost my son at the World Trade Center, and you tell me there's a God? No God would ever allow my son to die that way. There is no God. I'm agnostic now. I don't believe in God, and I will never again step foot in a church."

The other half I must say, it reinforced their religion. God will take care of my daughter. God will take care of my husband. 

ALEX BLUMBERG: Were you surprised at how religious these conversations turned? Like, here you are    it's a pretty nuts and bolts sort of situation you're doing here. You're -- you're trying to design compensation and distribute it, but it sounds like a lot of the conversations were around God.

KENNETH FEINBERG: That's right.

ALEX BLUMBERG: Is that surprising to you?

KENNETH FEINBERG: Maybe at the beginning, but by the time you get into this and you hold these hearings, you realize that religion looms large one way or another in most claimants' attitudes. And you -- you'd listen.

ALEX BLUMBERG: I'm just thinking about if I was in the role that you were in, and I would imagine myself just constantly at a loss for what to say.

KENNETH FEINBERG: I -- every once in a while there would be a claim that would be brought to my attention. And one claim in particular. You say if you were in my shoes, let me ask you what you would have done if you were in my shoes with the following claim.

ALEX BLUMBERG: Okay, bring it on.

KENNETH FEINBERG: Lady comes to see me. Sobbing. I thought she was going to collapse in my office. "Mr. Feinberg, I lost my husband at the World Trade Center. He was a fireman. And he left me with our three children: six, four, and two. Mr. Feinberg, my husband was Mr. Mom. Every day that he wasn't at the firehouse, he was home teaching our six-year-old how to play baseball, teaching our four-year-old how to read. Reading a bedtime story to the two-year-old. Mr. Mom, what a cook. He cooked all our meals. Mr. Feinberg, the only reason I haven't gone to the roof and jumped to join him are the three children. But you're gonna give me $3.5 million Mr. Feinberg, it doesn't mean a thing. My life is over. I have no purpose. I am rudderless. I'm going through the motions."

ALEX BLUMBERG: Oh!

KENNETH FEINBERG: We helped her out of the office. We had to physically help her get to the elevator. The next day, I get a telephone call from a lawyer in Queens. "Mr. Feinberg, did you meet yesterday with Mrs. Jones with the three kids and Mr. Mom?" I said, "Yup. Terrible. Just terrible." He goes, Mr. Feinberg I don't envy what you have to do every day. But I got to tell you, she doesn't know that Mr. Mom has two other kids by his girlfriend in Queens. Five and three. And I represent the girlfriend. And when you cut your check from the 9/11 fund, there's not three surviving children, there's five surviving children. But I'm sure you'll do the right thing." Click. He hangs up, of course. Do you tell her? Do you tell her that when he wasn't at the firehouse, he was leading a double life in Queens with another woman and two other kids? Or do you keep your mouth shut? That's the -- that's the tough one. What would you do if you were in my shoes?

ALEX BLUMBERG: Well, it's -- in general, a principal, is that it's better to know the truth than to not.

KENNETH FEINBERG: Transparency. That's right. "Mrs. Jones, like it or not, here's the full, unvarnished truth." Well, we went around on this one for three weeks. The staff, divided. And then one morning at about 3:00 a.m., my wife says to me, "Don't you dare tell that woman. Suffering already. What are you piling on for? There's no reason for you to tell her." Well, we never told her. We cut one check to her and the three kids. And without her knowledge, we did a separate calculation and cut a separate check to the girlfriend as the guardian of the two kids. That was it. Suffered enough. Why add this? Not necessary. We didn't tell her.

ALEX BLUMBERG: How'd you feel about that decision once  you made it?

KENNETH FEINBERG: Oh, once we made it, I -- to this day I think it was the right decision.

ALEX BLUMBERG: Are you a different person now that you've gone through this?

KENNETH FEINBERG: Oh, I'm whole a much more fatalistic.

ALEX BLUMBERG: What do you mean? 

KENNETH FEINBERG: I mean, I don't plan more than two weeks ahead. You don't know what's going to happen.

ALEX BLUMBERG: How does that manifest, not -- not planning more than two weeks ahead? What do you mean? 

KENNETH FEINBERG: I just try and live and do the best I can in the immediate time-frame. And when somebody says, "Let's plan a vacation next summer," I'll say, "Plan a vacation? Go ahead and plan it, but I'm buying refundable tickets."

ALEX BLUMBERG: Oh… And you weren't that way before? 

KENNETH FEINBERG: No.

Coming up after the break … What Kenneth Feinberg is working on today … 

BREAK 2

Welcome back to Without Fail and my conversation with Kenneth Feinberg. 

After nearly three years, Feinberg concluded his work on the 9/11 Victim Compensation Fund. He expected to return to a career in private practice. But then a gunman killed 32 people at Virginia Tech in 2007. And Ken Feinberg received a request. Would he help distribute all of the charitable donations people had sent? After that, tragedy had a way of finding him. 

Now, going on 20 years after he first picked up the phone and reached out to his old boss Senator Ted Kennedy, Feinberg has cemented his reputation. He’s been called, quote, “A modern-day King Solomon.” and “The nation’s leading expert in picking up the pieces.”

ALEX BLUMBERG: Wow! What did you like about this job?

KENNETH FEINBERG: Nothing. I don't like anything about the job. I -- I look back with respect and satisfaction about the job, but the idea that you like cutting checks to victims of tragedy, wrong word to use.

ALEX BLUMBERG: What's the satisfaction?

KENNETH FEINBERG: You've been asked by a President, an Attorney General, a Governor, a Mayor, a Member of Congress. You've been asked to perform a public service.

ALEX BLUMBERG: Was there some of it though that I -- when I hear you talk and I hear -- I -- I don't know if there's somebody else who could have done this difficult job better, and -- and there's something satisfying about doing a job that you know you are the best-qualified person to do. Did you feel that?

KEN FEINBERG: Well, I'm the most qualified person to do this because I did the last one successfully. One of these days, one of these assignments will blow up in my face, and then we'll ask somebody like Preet Bharara or somebody like that to take on the assignment next time.

ALEX BLUMBERG: Uh-huh.

KENNETH FEINBERG: Most Americans would accept the call if asked to step up.

ALEX BLUMBERG: Uh-huh.

KENNETH FEINBERG: But it's relatively rare. 

ALEX BLUMBERG: Yeah.

KENNETH FEINBERG: I mean, that's why I tell the critics, you know, there are always critics, usually lawyers, who say what Feinberg does is un-American. It's against the rule of law. No judge, no jury, no lawyers, no adversarial system, no appeals, no committees, under the guise of speed and efficiency and certainty, Feinberg rules. This is very, very bad public policy. And my answer is: calm down. You may be right that it's bad public policy. It's so rare that one of these programs even blossoms, I wouldn't lose sleep over it.

ALEX BLUMBERG: Right.

KENNETH FEINBERG: The American legal system works pretty well in most cases.

ALEX BLUMBERG: It strikes me that in -- in a lot of the -- these -- in these situations though, where you are called to serve and it's -- it's in the wake of a mass tragedy of one kind or another, for most of the people that you are dealing with it is the single worst event in their lives, and it's completely unprecedented. And for you, it's something that you've been through now hundreds or perhaps thousands of times. Having gone through it so many times, do you feel like you have something to say to people who are going through it for the first time or not?

KENNETH FEINBERG: Absolutely not. It's as if it's the first time I've ever done one of these. You -- be careful about confusing the substantive terms and conditions of the program, where we build on what we've done before, from the emotional response of victims and myself, to the individual cry that comes from the victim. Right -- right now as we speak, I'm resolving -- about 3,000 individual sexual abuse claims brought by victims against the Catholic Church. When you listen to that victim explain how he was abused by a priest in Brooklyn or Philadelphia or Trenton, it is absolutely horrifying. And you don't easily get over it.

ALEX BLUMBERG: How important ultimately is -- since the money -- since people aren't there to talk about the money, and since the money can't actually compensate them for the actual loss, is there a way to do a program that wouldn't involve money?

KENNETH FEINBERG: Not in America. Now in South Africa you will recall post-apartheid, they enacted legislation creating a truth and reconciliation committee, program. Where everybody, victim and perpetrator alike, was permitted to come and testify in open court about the horrors of apartheid, knowing that if they did so they would be immunized from liability. I don't think a Truth and Reconciliation Commission in the United States would work. The United States ...

ALEX BLUMBERG: Why?

KENNETH FEINBERG: Because the United States has always, from its inception, viewed the courtroom and money as the great leveler. As the way that you have the victim be compensated for her or his loss, paid for by the perpetrator. And that's the American capitalist system. It's always been that way, and it's part of our heritage, and I doubt very much you could ever change it.

ALEX BLUMBERG: So money in America is more than just a -- a medium of exchange. It is also the vehicle by which we solve our thorniest moral issues.

KENNETH FEINBERG: That's right. It is a placeholder for moral responsibility or absence of responsibility, the innocent victim.

ALEX BLUMBERG: As a placeholder, how good a job does it do?

KENNETH FEINBERG: Oh, I think it does a very good job. And even if it didn't do a good job, it is such a -- it is so ingrained in the history and character of our nation, it will never change. It's now been over 200 years. This is the way we do things here. And I think every day in every courtroom around the country, right in Brooklyn, there is a judge and jury deciding how much a victim of an automobile accident should get from the driver or his insurer. And that -- that exchange of liability and compensation ends the moral dilemma.

That was my conversation with Kenneth Feinberg.

Without Fail is hosted by me and produced by Molly Messick and Rob Szypko. It is edited by me and Devon Taylor.

Music and mixing by Bobby Lord.

If you like Without Fail, make sure you’re subscribed.  You can get every episode for free through Spotify, or wherever you get your podcasts. Thanks for listening.