1 00:00:15,276 --> 00:00:22,676 Speaker 1: Pushkin. Now, two women who were harlots came to the 2 00:00:22,756 --> 00:00:27,956 Speaker 1: king and stood before him, and one woman said, oh, 3 00:00:28,076 --> 00:00:31,436 Speaker 1: my Lord, this woman and I dwell in the same house, 4 00:00:32,236 --> 00:00:34,956 Speaker 1: and I gave birth while she was in the house. 5 00:00:35,956 --> 00:00:41,636 Speaker 1: Then it happened Old Testament, first King's three sixteen. There 6 00:00:41,636 --> 00:00:44,756 Speaker 1: are these two women, one whose baby has died, the 7 00:00:44,796 --> 00:00:48,556 Speaker 1: other whose baby is still alive. Each claims the living 8 00:00:48,556 --> 00:00:51,476 Speaker 1: baby as her own. They go to the new King 9 00:00:51,836 --> 00:00:59,236 Speaker 1: Solomon and ask him to sort it all out. In 10 00:00:59,316 --> 00:01:03,436 Speaker 1: the night, this woman's child died because she lay upon it. 11 00:01:04,236 --> 00:01:07,476 Speaker 1: Wherefore she removed my son from beside me while I slipped, 12 00:01:07,916 --> 00:01:12,396 Speaker 1: and they'd had dead child wild against marbles Chila. This 13 00:01:12,476 --> 00:01:16,556 Speaker 1: is from the somewhat less than classic film Solomon and Sheba. 14 00:01:16,716 --> 00:01:19,796 Speaker 1: The women are shushed by King Solomon played by Yule 15 00:01:19,876 --> 00:01:22,796 Speaker 1: Brenner in whatever they use for spray tan in nineteen 16 00:01:22,876 --> 00:01:26,116 Speaker 1: fifty nine. The living child is mine, the dead is yours. 17 00:01:26,156 --> 00:01:29,796 Speaker 1: The dead is yours, the living mine. Bring the infant forward. 18 00:01:30,596 --> 00:01:34,596 Speaker 1: A guard puts the baby down, and then yule Brenner 19 00:01:34,676 --> 00:01:40,436 Speaker 1: tells him to draw his sword, divide the child into 20 00:01:40,436 --> 00:01:45,796 Speaker 1: two parts. Give half to the one woman, half to 21 00:01:45,876 --> 00:01:48,876 Speaker 1: the other. Many close ups of people looking horrified. Here, 22 00:01:50,116 --> 00:01:55,316 Speaker 1: Oh no, if it must be give the child to her, 23 00:01:55,876 --> 00:01:58,636 Speaker 1: that it may not be slay divided, it should be 24 00:01:58,636 --> 00:02:06,036 Speaker 1: neither has nor mine as non fiction is not totally believable. 25 00:02:06,716 --> 00:02:08,996 Speaker 1: I mean, why would either woman want to see the 26 00:02:08,996 --> 00:02:12,596 Speaker 1: baby cut in half? Even the liar wants a live baby, 27 00:02:12,636 --> 00:02:15,796 Speaker 1: not a dead one. But Solomon's such a good character. 28 00:02:16,236 --> 00:02:20,676 Speaker 1: No one cares make your son mother, He's surely yours 29 00:02:21,156 --> 00:02:27,236 Speaker 1: would rather have surrendered him to another than to seem harmed. Now, 30 00:02:27,276 --> 00:02:31,036 Speaker 1: at last, I have seen a judgment of Solomon, and 31 00:02:31,236 --> 00:02:36,076 Speaker 1: your wisdom amazes me. That's Sheba. The ladies do love 32 00:02:36,076 --> 00:02:40,196 Speaker 1: the wisdom, even if it isn't all that wise. Solomon's 33 00:02:40,236 --> 00:02:42,436 Speaker 1: trick only works if the baby thief is suddenly happy 34 00:02:42,476 --> 00:02:45,556 Speaker 1: to see it killed and stupid enough to show it. Otherwise, 35 00:02:45,556 --> 00:02:49,116 Speaker 1: he's got nothing worse than nothing to save face. He'd 36 00:02:49,116 --> 00:02:51,156 Speaker 1: probably need to go through with it and cut a 37 00:02:51,196 --> 00:02:54,036 Speaker 1: totally innocent baby in half and then wears it. Leave 38 00:02:54,116 --> 00:02:56,676 Speaker 1: him as the guy who began his reign as the 39 00:02:56,756 --> 00:03:00,916 Speaker 1: king of Israel by cutting babies in half. Still, if 40 00:03:00,956 --> 00:03:04,516 Speaker 1: referees have an origin story, this is it, and it's 41 00:03:04,516 --> 00:03:08,716 Speaker 1: got two ideas buried inside. And all Israel heard of 42 00:03:08,716 --> 00:03:12,476 Speaker 1: the judgment which the king had rendered, and they feared 43 00:03:12,476 --> 00:03:15,756 Speaker 1: the king, for they saw that the wisdom of God 44 00:03:15,996 --> 00:03:20,676 Speaker 1: was in him to administer justice. That's the last line 45 00:03:20,716 --> 00:03:24,076 Speaker 1: of the story and the first idea. The job of 46 00:03:24,116 --> 00:03:27,356 Speaker 1: the referee is so hard to do that doing it 47 00:03:27,436 --> 00:03:34,796 Speaker 1: really well is a sign of divine inspiration. Another idea 48 00:03:34,996 --> 00:03:36,956 Speaker 1: is sort of taken for granted right from the start, 49 00:03:37,836 --> 00:03:40,076 Speaker 1: that the job needs to be done at all, that 50 00:03:40,156 --> 00:03:43,636 Speaker 1: when two squabbling human beings go looking for justice, they 51 00:03:43,636 --> 00:03:46,116 Speaker 1: should turn to some other human being to act as 52 00:03:46,116 --> 00:03:49,196 Speaker 1: a neutral third party, as if human beings weren't the 53 00:03:49,236 --> 00:03:52,876 Speaker 1: problem in the first place. But people are just no 54 00:03:52,956 --> 00:03:55,996 Speaker 1: good at resolving their own conflicts. Any parent of more 55 00:03:55,996 --> 00:03:58,956 Speaker 1: than one child knows this, so does every teacher, a lawyer, 56 00:03:58,956 --> 00:04:01,716 Speaker 1: and cop. We just take it for granted that we 57 00:04:01,756 --> 00:04:06,236 Speaker 1: need legal systems, both formal and informal, and we just 58 00:04:06,316 --> 00:04:09,756 Speaker 1: assume that some totally innocent third party will want to 59 00:04:09,756 --> 00:04:13,596 Speaker 1: help us to resolve even our most petty disputes. We 60 00:04:13,716 --> 00:04:17,156 Speaker 1: never ask why should someone with no real interest in 61 00:04:17,156 --> 00:04:20,756 Speaker 1: our conflicts be better at refereeing them than we are. 62 00:04:21,556 --> 00:04:25,196 Speaker 1: And we also don't ask would actually make someone good 63 00:04:25,436 --> 00:04:35,036 Speaker 1: at this job no one wants. I'm Michael Lewis and 64 00:04:35,196 --> 00:04:38,916 Speaker 1: This is Against the Rules, a show about the attack 65 00:04:38,956 --> 00:04:41,916 Speaker 1: on the authority of referees in American life and what 66 00:04:42,156 --> 00:04:54,276 Speaker 1: that's doing to our idea of fairness. A few months ago, 67 00:04:54,716 --> 00:04:57,036 Speaker 1: I was at a bar in Washington, d C. With 68 00:04:57,116 --> 00:04:59,836 Speaker 1: a friend of mine who's a sports writer, Rob Nyer. 69 00:05:01,316 --> 00:05:02,996 Speaker 1: He's the opposite of what you think of when you 70 00:05:02,996 --> 00:05:09,476 Speaker 1: think of sports writer. Quiet, well mannered, almost shy. He's 71 00:05:09,516 --> 00:05:17,156 Speaker 1: a fan, but he's never fanatical. He's like his writing, cool, analytical, detached. 72 00:05:18,236 --> 00:05:21,476 Speaker 1: But then at the bar, his cell phone rang. He 73 00:05:21,516 --> 00:05:25,396 Speaker 1: looked at the number, got all agitated. All I hate 74 00:05:25,436 --> 00:05:27,916 Speaker 1: my life. I hate these people who keep calling me, 75 00:05:28,396 --> 00:05:31,436 Speaker 1: but I have to take this one. I'd never seen 76 00:05:31,516 --> 00:05:36,116 Speaker 1: him like this. He spent twenty minutes pacing around outside 77 00:05:36,876 --> 00:05:41,676 Speaker 1: on his phone, came back a total wreck, angry, distracted, 78 00:05:42,076 --> 00:05:45,916 Speaker 1: incapable of pleasure. It was this new job he'd taken, 79 00:05:45,996 --> 00:05:50,996 Speaker 1: he said, As commissioner of an amateur baseball league, I 80 00:05:51,036 --> 00:05:54,756 Speaker 1: would travel around, visit every team eleven ballparks, which is 81 00:05:55,836 --> 00:05:58,476 Speaker 1: for most baseball fans, that's sort of a dream come true. 82 00:05:58,836 --> 00:06:00,956 Speaker 1: Why would I not agree to all of that. It 83 00:06:01,036 --> 00:06:04,556 Speaker 1: was known as the West Coast League. The teams were 84 00:06:04,596 --> 00:06:07,836 Speaker 1: all owned by rich guys. They had persuaded Rob to 85 00:06:07,876 --> 00:06:12,236 Speaker 1: become the league's public face, it's symbolic leader. These rich 86 00:06:12,276 --> 00:06:15,356 Speaker 1: guys love the game. Rob loved the game. What could 87 00:06:15,396 --> 00:06:18,916 Speaker 1: go wrong? Well, it turned out that these owners argued 88 00:06:18,956 --> 00:06:23,196 Speaker 1: amongst themselves a lot. Their coaches and players fought with 89 00:06:23,236 --> 00:06:27,476 Speaker 1: each other too, and everyone fought with the umpires. They 90 00:06:27,516 --> 00:06:30,156 Speaker 1: expected Rob, as commissioner, to get in the middle of 91 00:06:30,156 --> 00:06:33,756 Speaker 1: all these fights and referee them. But the rich guys 92 00:06:33,796 --> 00:06:36,796 Speaker 1: hated to be refereed unless the call went their way. 93 00:06:37,876 --> 00:06:39,396 Speaker 1: That's what the phone call had been about. In the 94 00:06:39,396 --> 00:06:45,636 Speaker 1: Washington Bar, yet another dispute. The umpire reported that the 95 00:06:45,676 --> 00:06:49,676 Speaker 1: head coach poked him with his finger, and this was 96 00:06:49,716 --> 00:06:51,996 Speaker 1: the second time that this head coach had been suspended. 97 00:06:51,996 --> 00:06:56,076 Speaker 1: The first time he had sprayed, whether inadvertently or not, 98 00:06:56,156 --> 00:07:02,276 Speaker 1: the rules don't make a distinction. Sprayed with saliva an umpire, 99 00:07:02,676 --> 00:07:05,756 Speaker 1: so he was suspended at that time, and then just 100 00:07:05,796 --> 00:07:10,676 Speaker 1: a couple of weeks later reported the according to the 101 00:07:10,756 --> 00:07:15,716 Speaker 1: umpire's report, poked the umpire. Unfortunately, the video was inconclusive, 102 00:07:16,236 --> 00:07:19,076 Speaker 1: so I felt like I had to take the umpire's 103 00:07:19,756 --> 00:07:24,716 Speaker 1: report at face value. Rob suspended the head coach again, 104 00:07:25,316 --> 00:07:27,636 Speaker 1: thus pissing off the owner, who blamed the whole thing 105 00:07:27,676 --> 00:07:30,196 Speaker 1: on the umpire, with whom he now thought Rob was 106 00:07:30,196 --> 00:07:33,396 Speaker 1: in some sort of secret alliance. For his part, Rob 107 00:07:33,436 --> 00:07:35,916 Speaker 1: couldn't see what he'd done to deserve this. No one 108 00:07:35,916 --> 00:07:38,276 Speaker 1: asked if he had some special talent for refing other 109 00:07:38,316 --> 00:07:42,276 Speaker 1: people's disputes. They just sort of assumed he'd figure it out, 110 00:07:43,116 --> 00:07:46,436 Speaker 1: which he was trying to do. You have to as 111 00:07:46,436 --> 00:07:49,916 Speaker 1: a league, you you have to have an incredibly compelling 112 00:07:49,956 --> 00:07:53,996 Speaker 1: reason to dispute the report or the integrity of an umpire. 113 00:07:54,076 --> 00:07:58,676 Speaker 1: Otherwise you just lose control. Anarchy. That night in the bar, 114 00:07:59,356 --> 00:08:02,196 Speaker 1: that was when Rob had realized that he was losing control, 115 00:08:03,516 --> 00:08:07,956 Speaker 1: that in this amateur baseball league it was anarchy. I 116 00:08:08,036 --> 00:08:11,516 Speaker 1: had just covered two days after the fact that the 117 00:08:12,156 --> 00:08:16,796 Speaker 1: head coach actually did not serve his suspension. So yes, 118 00:08:16,876 --> 00:08:21,996 Speaker 1: I mean I was apoplectic because you what am I 119 00:08:21,996 --> 00:08:23,796 Speaker 1: supposed to do? Now? So what did you do to him? 120 00:08:25,196 --> 00:08:28,676 Speaker 1: I suspended the owner for three games and levied a 121 00:08:29,876 --> 00:08:34,876 Speaker 1: relatively small fine. And how did he respond to that? Not? Well, no, 122 00:08:35,036 --> 00:08:37,916 Speaker 1: not well at all. The owner had screamed at him, 123 00:08:38,396 --> 00:08:41,116 Speaker 1: accused him of somehow being on the take from another 124 00:08:41,156 --> 00:08:45,476 Speaker 1: team's owner. But Rob was just doing his job enforcing 125 00:08:45,476 --> 00:08:50,356 Speaker 1: the rules, which sounds simple, right, I mean, Solomon did it. 126 00:08:51,476 --> 00:08:55,556 Speaker 1: But it turns out there's a great deal of ambiguity 127 00:08:55,796 --> 00:08:59,596 Speaker 1: in the rules. For example, there is a rule against 128 00:09:00,156 --> 00:09:05,076 Speaker 1: prolonging an argument after an injection, but there's no definition 129 00:09:05,116 --> 00:09:08,716 Speaker 1: of prolonging. And now I have to go read all 130 00:09:08,716 --> 00:09:11,836 Speaker 1: these things and watch video and try to make some 131 00:09:11,876 --> 00:09:16,956 Speaker 1: sort of reasonable determination, and almost invariably neither side is 132 00:09:16,996 --> 00:09:20,076 Speaker 1: happy ultimately with my decision. What kind of person would 133 00:09:20,196 --> 00:09:28,396 Speaker 1: enjoy being in the middle, Well, my it's a good question. 134 00:09:29,196 --> 00:09:33,116 Speaker 1: I keep getting this sneaking suspicion that there are at 135 00:09:33,156 --> 00:09:38,716 Speaker 1: least a few people in the league who actually enjoy conflict, 136 00:09:38,756 --> 00:09:42,596 Speaker 1: who thrive on it. I don't know if that's true. 137 00:09:43,636 --> 00:09:45,996 Speaker 1: Maybe they can't help themselves, and maybe the conflict makes 138 00:09:46,036 --> 00:09:48,716 Speaker 1: them as miserable as it makes me. I don't know, 139 00:09:49,156 --> 00:09:51,676 Speaker 1: And I've actually tried to reason with people, these people 140 00:09:51,716 --> 00:09:56,156 Speaker 1: who seem to enjoy it, because there's a part of 141 00:09:56,156 --> 00:09:59,116 Speaker 1: me the things they can't be having fun yelling at you, 142 00:09:59,116 --> 00:10:02,676 Speaker 1: can they of course they can. People love to scream 143 00:10:02,716 --> 00:10:06,076 Speaker 1: it refs. They do it all the time. And the 144 00:10:06,156 --> 00:10:08,596 Speaker 1: same people who love to scream it refs also just 145 00:10:08,596 --> 00:10:10,716 Speaker 1: sort of a zoom. The ref's job is to sit 146 00:10:10,756 --> 00:10:14,276 Speaker 1: there and take it. I told Rob all this, but 147 00:10:14,356 --> 00:10:17,156 Speaker 1: it didn't seem to make him any happier. So I 148 00:10:17,196 --> 00:10:21,756 Speaker 1: asked him was there anything he liked about his new job? Oh? No, no, 149 00:10:21,956 --> 00:10:25,356 Speaker 1: why not? How at the end of the day, how 150 00:10:25,876 --> 00:10:31,116 Speaker 1: do you feel good knowing that someone is upset with 151 00:10:31,196 --> 00:10:34,676 Speaker 1: you and might be questioning your integrity. Rob had clearly 152 00:10:34,756 --> 00:10:37,396 Speaker 1: never been a ref, and he was learning that he 153 00:10:37,476 --> 00:10:39,996 Speaker 1: wasn't cut out for it. I probably couldn't be an 154 00:10:40,036 --> 00:10:48,596 Speaker 1: umpire because my first reaction would probably be to start fighting. 155 00:10:49,236 --> 00:10:50,876 Speaker 1: So you'd just be out there. You'd be out there 156 00:10:50,996 --> 00:10:53,636 Speaker 1: throwing sledgehammer punches at the people who came up to 157 00:10:53,716 --> 00:10:56,756 Speaker 1: argue with you. Well, I wouldn't be good at throwing punches, 158 00:10:56,796 --> 00:10:58,796 Speaker 1: but yes, I would be throwing punches. The first time 159 00:10:58,836 --> 00:11:02,316 Speaker 1: someone got inchest from my face and started screaming profanities 160 00:11:02,316 --> 00:11:04,036 Speaker 1: at me, I would lose it. I mean, I have 161 00:11:04,156 --> 00:11:06,516 Speaker 1: road rage issues, Not that I've ever done anything, but 162 00:11:06,516 --> 00:11:08,476 Speaker 1: but I have that impulse so they need to find 163 00:11:08,476 --> 00:11:11,116 Speaker 1: a different kind of person to do this job. Well, 164 00:11:11,156 --> 00:11:13,476 Speaker 1: I don't want to fire myself, but I would recommend 165 00:11:13,516 --> 00:11:17,356 Speaker 1: someone else. Yeah. Sure, I've watched Rob work for years 166 00:11:17,436 --> 00:11:20,636 Speaker 1: on a book and overcome all sorts of obstacles. But 167 00:11:20,756 --> 00:11:22,756 Speaker 1: just a few months into his career as a referee, 168 00:11:22,836 --> 00:11:25,996 Speaker 1: he's already looking to quit hand the job to someone else. 169 00:11:26,716 --> 00:11:31,716 Speaker 1: But to whom I mean that generally, not just in baseball, 170 00:11:32,076 --> 00:11:35,636 Speaker 1: In all the places where disputes need resolving, the job 171 00:11:35,756 --> 00:11:39,516 Speaker 1: obviously needs doing, maybe more than ever, But what sort 172 00:11:39,516 --> 00:11:52,316 Speaker 1: of person can do it? Back in nineteen seventy nine, 173 00:11:52,756 --> 00:11:55,956 Speaker 1: a huge number of Vietnam vets filed a lawsuit against 174 00:11:56,036 --> 00:12:00,236 Speaker 1: Monsanto and Dow Chemical and other companies that had manufactured 175 00:12:00,276 --> 00:12:04,636 Speaker 1: a herbicide called Agent Orange. Millions of gallons of the 176 00:12:04,676 --> 00:12:07,756 Speaker 1: stuff had been dumped under the Vietnamese jungles to kill 177 00:12:07,796 --> 00:12:12,396 Speaker 1: the plant cover used by the Vietcong. Thousands of vets 178 00:12:12,396 --> 00:12:15,316 Speaker 1: exposed to agent Orange believed it was responsible for their 179 00:12:15,396 --> 00:12:19,156 Speaker 1: various health problems. They didn't have much evidence, but the 180 00:12:19,156 --> 00:12:21,956 Speaker 1: companies wanted to settle just to end the whole thing. 181 00:12:22,996 --> 00:12:26,236 Speaker 1: That effort kicked around the courts for five years, but 182 00:12:26,276 --> 00:12:28,876 Speaker 1: no one could find a solution that would satisfy everyone. 183 00:12:29,876 --> 00:12:32,516 Speaker 1: Then the judge decided to see if he could find 184 00:12:32,556 --> 00:12:36,636 Speaker 1: a solution outside the American legal system, to appoint an 185 00:12:36,636 --> 00:12:43,516 Speaker 1: outside mediator, special master the courts called it. And I 186 00:12:43,716 --> 00:12:47,636 Speaker 1: just got a telephone call out of the clear blue 187 00:12:48,276 --> 00:12:52,236 Speaker 1: from a federal judge in Brooklyn, New York. Did he 188 00:12:52,356 --> 00:12:54,956 Speaker 1: explain to you why he thought you'd be good at 189 00:12:54,996 --> 00:12:59,916 Speaker 1: that job? Yes, he said, You've got the personality for it. 190 00:13:00,476 --> 00:13:05,396 Speaker 1: The young lawyer's name was and Is ken Feinberg. A 191 00:13:05,476 --> 00:13:08,796 Speaker 1: case that went unresolved for half a decade, he settled 192 00:13:09,356 --> 00:13:13,836 Speaker 1: in six weeks. A legend was born. I changed my life. 193 00:13:13,836 --> 00:13:17,036 Speaker 1: It changed my professional life. You see. Once I got 194 00:13:17,036 --> 00:13:20,796 Speaker 1: AIGs in Orange resolved and it was on the front 195 00:13:20,876 --> 00:13:25,316 Speaker 1: page of every newspaper in the United States, I started 196 00:13:25,356 --> 00:13:30,756 Speaker 1: getting a flood of calls. Was there any any experience 197 00:13:30,796 --> 00:13:33,796 Speaker 1: in your life before this that was like this where 198 00:13:33,796 --> 00:13:35,636 Speaker 1: you could say, all, I've been in this kind of 199 00:13:35,676 --> 00:13:40,276 Speaker 1: situation before. No. I had been in high school and college. 200 00:13:40,356 --> 00:13:44,436 Speaker 1: I had been an actor on the stage. I had 201 00:13:44,476 --> 00:13:48,276 Speaker 1: thought that I might end up on Broadway. When I 202 00:13:48,316 --> 00:13:52,796 Speaker 1: went to law school in nineteen seventy there was no 203 00:13:52,916 --> 00:13:59,156 Speaker 1: course in mediation or arbitration. There's nothing like that. But 204 00:13:59,196 --> 00:14:01,916 Speaker 1: there was this role that needed to be played in 205 00:14:01,916 --> 00:14:07,236 Speaker 1: American life. It just hadn't been written yet. Feinberg created 206 00:14:07,316 --> 00:14:12,196 Speaker 1: it by sheer force of personality. He wound up running 207 00:14:12,196 --> 00:14:15,996 Speaker 1: the nine to eleven Victims Compensation Fund and met personally 208 00:14:15,996 --> 00:14:18,476 Speaker 1: with the families of the three thousand people who were killed. 209 00:14:19,116 --> 00:14:21,276 Speaker 1: He ran the fund to compensate victims of the BP 210 00:14:21,436 --> 00:14:24,996 Speaker 1: oil spill. After the two thousand and eight financial crisis, 211 00:14:25,436 --> 00:14:31,276 Speaker 1: the United States Congress gave Ken Feinberg sole authority to 212 00:14:31,396 --> 00:14:33,716 Speaker 1: determine the pay of the CEOs of the banks that 213 00:14:33,756 --> 00:14:37,036 Speaker 1: had been bailed out by government money. And that's just 214 00:14:37,156 --> 00:14:40,596 Speaker 1: the start. The Paul snight Club in Orlando, Florida, when 215 00:14:40,596 --> 00:14:44,436 Speaker 1: the terrorists attack, they raised and asked me to distribute 216 00:14:44,476 --> 00:14:50,436 Speaker 1: thirty million. The harvest, Las Vegas shootings from the Mandalay Hotel. 217 00:14:50,796 --> 00:14:56,916 Speaker 1: I killed fifty nine people. They raised thirty million. Distribute 218 00:14:56,916 --> 00:14:59,596 Speaker 1: that money Sandy Hook. They asked me to go up 219 00:14:59,596 --> 00:15:03,316 Speaker 1: to Sandy Hook and decide how should we distribute the money. 220 00:15:03,796 --> 00:15:08,156 Speaker 1: The Pittsburgh Tree of Life Synagogue shootings the next day, 221 00:15:09,396 --> 00:15:14,796 Speaker 1: the Federation of Jewish Philanthropies in Pittsburgh, call, how do 222 00:15:14,836 --> 00:15:20,516 Speaker 1: we distribute this money? It is astounding. One hundred thousand 223 00:15:20,596 --> 00:15:25,156 Speaker 1: people after those Boston Marathon bombings sent in money unsolicited, 224 00:15:26,276 --> 00:15:29,756 Speaker 1: you know, and Mayhem Nino and Governor Patrick said, ken, 225 00:15:29,916 --> 00:15:34,436 Speaker 1: you're from Massachusetts, you grew up here. We want you 226 00:15:34,476 --> 00:15:38,676 Speaker 1: to design and administer a compensation program. Four dead, two 227 00:15:38,836 --> 00:15:44,476 Speaker 1: hundred and forty runners are observers at the finish line, injured, 228 00:15:45,716 --> 00:15:52,996 Speaker 1: sixteen single amputees, two double amputees. Sixty one million distribute 229 00:15:53,036 --> 00:15:57,876 Speaker 1: the money. The mass shooting in a movie theater in Aurora, Colorado. 230 00:15:58,556 --> 00:16:03,116 Speaker 1: The thousands of disputes after Hurricane Katrina between insurance companies 231 00:16:03,116 --> 00:16:06,916 Speaker 1: and homeowners who are covered for wind but not flood damage. 232 00:16:07,236 --> 00:16:10,556 Speaker 1: And they retained me to set up a mediation program. 233 00:16:11,396 --> 00:16:15,196 Speaker 1: Any whole owner wants to participate, voluntarily, Come on in. 234 00:16:15,836 --> 00:16:20,436 Speaker 1: Feinberg will be the neutral. The neutral, This magical extra 235 00:16:20,556 --> 00:16:25,596 Speaker 1: legal character, this gifted referee who drops into a situation 236 00:16:25,716 --> 00:16:29,836 Speaker 1: where people are traumatized, a situation that also might easily 237 00:16:29,876 --> 00:16:35,996 Speaker 1: become ugly and public, and he resolves it quietly, privately, 238 00:16:36,636 --> 00:16:40,276 Speaker 1: and hardly anyone says anything about it, or even knows 239 00:16:40,356 --> 00:16:45,196 Speaker 1: who he is, or just how much power he's wielded. 240 00:16:46,436 --> 00:16:49,596 Speaker 1: That's why victims Advocate John Fia wants everyone who is 241 00:16:49,596 --> 00:16:52,436 Speaker 1: eligible to sign up. We have lost forty two people 242 00:16:52,476 --> 00:16:55,156 Speaker 1: this year alone to nine eleven lady chancers. This will 243 00:16:55,196 --> 00:16:58,156 Speaker 1: provide money to victims families. In all of these programs, 244 00:16:58,196 --> 00:17:02,036 Speaker 1: you have some discretion, but you have to exercise it wisely, 245 00:17:02,076 --> 00:17:09,236 Speaker 1: because the public and the victims are all circling. How 246 00:17:09,316 --> 00:17:13,876 Speaker 1: you strike the balance between paying people enough for their 247 00:17:13,956 --> 00:17:20,356 Speaker 1: loss example Pete nine to eleven and not paying them 248 00:17:20,396 --> 00:17:22,996 Speaker 1: too much. So you couldn't so in dolling out the money, 249 00:17:23,036 --> 00:17:27,716 Speaker 1: you couldn't actually reflect just pure expected earnings. You couldn't. 250 00:17:28,036 --> 00:17:32,556 Speaker 1: You couldn't. The law wisely said, and finebergs shall consider 251 00:17:33,556 --> 00:17:37,356 Speaker 1: expected earnings. And then there's another clause that says, and 252 00:17:37,476 --> 00:17:41,516 Speaker 1: he will see to it that justice is done well. 253 00:17:41,516 --> 00:17:45,236 Speaker 1: That gave me the opening to bring down the top 254 00:17:45,436 --> 00:17:48,476 Speaker 1: and bring up the bottom so that the gap between 255 00:17:48,516 --> 00:17:51,996 Speaker 1: the stockbroker who died and the bus boy who died 256 00:17:52,556 --> 00:17:55,796 Speaker 1: was not to Why what was the difference, the monetary 257 00:17:55,836 --> 00:17:58,476 Speaker 1: difference between what would have happened if you just had 258 00:17:58,716 --> 00:18:02,076 Speaker 1: a raw, cold calculation of lost earnings and what you 259 00:18:02,116 --> 00:18:04,556 Speaker 1: actually did. Oh I think some people I don't know 260 00:18:04,596 --> 00:18:07,756 Speaker 1: how many, but I think some widows or widowers, I 261 00:18:07,836 --> 00:18:12,156 Speaker 1: should say, would have maybe got thirty five million dollars 262 00:18:12,156 --> 00:18:14,476 Speaker 1: in tax to pay it, money which I reduced to 263 00:18:14,476 --> 00:18:16,716 Speaker 1: no more than six and would about on the other end. 264 00:18:16,956 --> 00:18:19,756 Speaker 1: And on the other end, some people might have got 265 00:18:19,916 --> 00:18:23,476 Speaker 1: two hundred thousand dollars, and I increased the bottom to 266 00:18:23,596 --> 00:18:26,836 Speaker 1: up over a million dollars. He turned thirty five million 267 00:18:26,876 --> 00:18:29,716 Speaker 1: dollars into six for the family of a bond trader, 268 00:18:30,076 --> 00:18:33,156 Speaker 1: and two hundred thousand dollars into a million for the 269 00:18:33,196 --> 00:18:37,356 Speaker 1: family of a bus boy, all by himself for free. 270 00:18:38,316 --> 00:18:41,196 Speaker 1: Feinberg refused to be paid for his work settling the 271 00:18:41,236 --> 00:18:45,476 Speaker 1: nine to eleven victims Compensation Fund. He doesn't take money 272 00:18:45,516 --> 00:18:48,796 Speaker 1: after mass shootings either. He just feels it's his duty 273 00:18:48,836 --> 00:18:53,436 Speaker 1: to do the job. And hardly anybody complains about the results. 274 00:18:53,996 --> 00:18:56,716 Speaker 1: Of course, plaintiff lawyers don't like it, but about the 275 00:18:56,756 --> 00:19:00,556 Speaker 1: only principled objection to Ken Feinberg comes from legal scholars 276 00:19:00,876 --> 00:19:02,996 Speaker 1: who worry that his success makes a mockery of the 277 00:19:03,076 --> 00:19:07,196 Speaker 1: legal system. Like this guy. I'm Eric Posner, and I'm 278 00:19:07,236 --> 00:19:10,276 Speaker 1: a professor of law at the University of Chicago. In 279 00:19:10,396 --> 00:19:13,356 Speaker 1: his writing, Posners raise questions about the role that Ken 280 00:19:13,356 --> 00:19:20,196 Speaker 1: Fineberg plays. So the legal system doesn't always reflect people's 281 00:19:20,836 --> 00:19:24,916 Speaker 1: ordinary moral intuitions about how dispute should be solved. To 282 00:19:25,076 --> 00:19:27,756 Speaker 1: give me an example, it's like a concrete example or 283 00:19:27,756 --> 00:19:32,036 Speaker 1: two of outcomes the legal system might generate that would 284 00:19:32,116 --> 00:19:36,996 Speaker 1: violate common sense notions of fairness. So suppose you're driving 285 00:19:36,996 --> 00:19:41,196 Speaker 1: your automobile and you run over a wealthy person and 286 00:19:41,876 --> 00:19:45,996 Speaker 1: kill him. His family sues, you may have to pay 287 00:19:46,076 --> 00:19:50,196 Speaker 1: damages equal to his lost income, which could be millions 288 00:19:50,236 --> 00:19:53,516 Speaker 1: of dollars. And then someone else runs over a poor 289 00:19:53,596 --> 00:20:00,156 Speaker 1: person and the poor person's family sues, and the damages 290 00:20:00,156 --> 00:20:02,956 Speaker 1: that are awarded might just be a few hundred thousand 291 00:20:02,956 --> 00:20:06,436 Speaker 1: dollars or less, just like what might have happened after 292 00:20:06,516 --> 00:20:10,756 Speaker 1: nine to eleven if Fineberg hadn't been there. Because of 293 00:20:10,796 --> 00:20:14,596 Speaker 1: this legal rule that compensates victims in their families based 294 00:20:14,596 --> 00:20:18,356 Speaker 1: on their lost income, that values people's lives by how 295 00:20:18,396 --> 00:20:22,116 Speaker 1: much money they make, and it looks quite unfair because 296 00:20:22,116 --> 00:20:23,996 Speaker 1: it's as if the law is saying that the wealthy 297 00:20:24,036 --> 00:20:26,956 Speaker 1: person's life is worth a lot and the poor person's 298 00:20:26,996 --> 00:20:30,636 Speaker 1: life is worth not that much. And that's very much 299 00:20:30,636 --> 00:20:37,116 Speaker 1: inconsistent with our moral intuitions about equality. This disconnect between 300 00:20:37,196 --> 00:20:40,156 Speaker 1: the common sense notion of what's fair and with the 301 00:20:40,236 --> 00:20:44,156 Speaker 1: legal system produces is allowed to sort of chug along 302 00:20:44,716 --> 00:20:47,396 Speaker 1: until there's a big spotlight thrown on it, like there 303 00:20:47,436 --> 00:20:51,276 Speaker 1: was in nine to eleven. Right, So the legal system 304 00:20:51,276 --> 00:20:53,796 Speaker 1: can chug along as long as you people aren't paying 305 00:20:53,796 --> 00:20:57,556 Speaker 1: too much attention to it. But when there is some 306 00:20:57,636 --> 00:21:03,836 Speaker 1: kind of massive public spotlight on the particular conflict that 307 00:21:03,876 --> 00:21:07,596 Speaker 1: the law is supposed to deal with, people see how 308 00:21:07,596 --> 00:21:11,836 Speaker 1: it operates out of context, and they can get very angry. 309 00:21:11,916 --> 00:21:14,996 Speaker 1: I love this idea that the only reason the legal 310 00:21:14,996 --> 00:21:17,516 Speaker 1: system works is that people don't pay attention to it, 311 00:21:17,956 --> 00:21:20,716 Speaker 1: that when they do pay attention to it, they're shocked 312 00:21:20,716 --> 00:21:24,236 Speaker 1: by its unfairness. That the stability of the entire society 313 00:21:24,316 --> 00:21:27,156 Speaker 1: depends on people not looking too closely at its foundation, 314 00:21:27,796 --> 00:21:31,156 Speaker 1: because when they do, they get seriously pissed off. And 315 00:21:31,196 --> 00:21:34,276 Speaker 1: then the system, you know, our system of law and politics, 316 00:21:34,316 --> 00:21:37,676 Speaker 1: has to address this anger in some way. This anger 317 00:21:37,756 --> 00:21:41,596 Speaker 1: is a political problem that the legal system is really 318 00:21:41,596 --> 00:21:46,596 Speaker 1: not set up to address. And that's when ken Feinberg appears. 319 00:21:48,036 --> 00:21:51,396 Speaker 1: When the anger hits a certain point when people are 320 00:21:51,476 --> 00:21:54,076 Speaker 1: chucking beer cans onto the field and deciding the game 321 00:21:54,156 --> 00:21:59,476 Speaker 1: is rigged. Feinberg descends by parachute, and the arena goes quiet, 322 00:22:00,596 --> 00:22:04,596 Speaker 1: and just about everybody accepts his judgment, and just about 323 00:22:04,636 --> 00:22:11,356 Speaker 1: everybody agrees it's fair. So so what Ken Feinberg really 324 00:22:11,396 --> 00:22:14,516 Speaker 1: is as a political solution, That's exactly what he is. 325 00:22:14,556 --> 00:22:19,236 Speaker 1: He's a political solution. A legal scholar looks at ken 326 00:22:19,236 --> 00:22:22,036 Speaker 1: Feinberg and asks, why do we turn to this one 327 00:22:22,156 --> 00:22:26,916 Speaker 1: guy time and again to dispense justice? And why is 328 00:22:26,956 --> 00:22:30,356 Speaker 1: that justice so obviously different from what our legal system 329 00:22:30,436 --> 00:22:34,876 Speaker 1: might supply. I'm interested in a different question. I look 330 00:22:34,916 --> 00:22:37,596 Speaker 1: at ken Feinberg and ask, how the hell does he 331 00:22:37,716 --> 00:22:43,316 Speaker 1: do it? I mean, how does any citizen of this fractious, unreasonable, entitled, 332 00:22:43,396 --> 00:22:47,236 Speaker 1: moronic country persuaded to come together and agree on anything? 333 00:22:47,916 --> 00:22:51,076 Speaker 1: Do they be asking how you're doing that? I don't 334 00:22:51,116 --> 00:22:53,796 Speaker 1: really think that. Most people who ask me to do this, 335 00:22:56,436 --> 00:22:59,916 Speaker 1: they don't really prole very much as to how it 336 00:22:59,956 --> 00:23:03,476 Speaker 1: gets done. They like the results. Right, the time has 337 00:23:03,516 --> 00:23:11,076 Speaker 1: come to ask him how he does it? So, I 338 00:23:11,356 --> 00:23:13,996 Speaker 1: see you're a talker, But I loved your book, The 339 00:23:13,996 --> 00:23:17,036 Speaker 1: One on Wall Street. I went to visit Ken Feinberg 340 00:23:17,116 --> 00:23:21,596 Speaker 1: at his apartment in the suburbs of Washington, DC. Nice place, 341 00:23:22,676 --> 00:23:26,316 Speaker 1: not a money person's place, not extravagant. His wife diets 342 00:23:26,356 --> 00:23:29,316 Speaker 1: with us on the sofa beside us. They're both in 343 00:23:29,356 --> 00:23:32,556 Speaker 1: their seventies, their kids all grown up and gone. They've 344 00:23:32,556 --> 00:23:35,236 Speaker 1: earned the right to move to some beach. Let the 345 00:23:35,236 --> 00:23:39,196 Speaker 1: world find another referee. But they haven't moved since we 346 00:23:39,316 --> 00:23:44,476 Speaker 1: last spoke. I'm now resolving all of these Catholic priest 347 00:23:44,556 --> 00:23:48,716 Speaker 1: abuse cases in New York and Pennsylvania. We are the 348 00:23:48,796 --> 00:23:55,116 Speaker 1: Codinal Dolan in New York and the Archbishop in Philadelphia 349 00:23:55,356 --> 00:23:57,716 Speaker 1: came and basically said to me, you know, this is 350 00:23:57,996 --> 00:24:01,436 Speaker 1: one situation where the Jews have to bail out the Catholics, 351 00:24:01,636 --> 00:24:04,436 Speaker 1: and we've been resolving all these cases. Just how you 352 00:24:04,476 --> 00:24:07,796 Speaker 1: want to spend your golden years refing the dispute between 353 00:24:07,836 --> 00:24:11,356 Speaker 1: the Catholic Church and however many Americans have been abused 354 00:24:11,396 --> 00:24:15,476 Speaker 1: by its employees. But this is clearly Feinberg's idea. I 355 00:24:15,516 --> 00:24:17,836 Speaker 1: was about to say fun but that's not quite right. 356 00:24:18,436 --> 00:24:20,956 Speaker 1: It's more like his idea of where he needs to be. 357 00:24:21,796 --> 00:24:25,196 Speaker 1: Like Finburg GPS, if at any given moment, you want 358 00:24:25,236 --> 00:24:27,876 Speaker 1: to know where Ken Fineburg is. Just go looking for 359 00:24:27,916 --> 00:24:31,996 Speaker 1: the most upsetting public controversy. You'll find him in the 360 00:24:31,996 --> 00:24:35,396 Speaker 1: middle of it. As the neutral and the church came 361 00:24:35,436 --> 00:24:40,196 Speaker 1: and said, basically, will you meet with individual victims voluntarily 362 00:24:40,196 --> 00:24:42,116 Speaker 1: if they don't want to, they don't have to, and 363 00:24:42,636 --> 00:24:46,996 Speaker 1: we'll pay for it. We'll compensate them for the damage 364 00:24:47,036 --> 00:24:52,516 Speaker 1: we did, horrible damage, I mean penetration, a sodomy rape 365 00:24:53,116 --> 00:24:57,076 Speaker 1: going back forty years or more. And we've resolve virtually 366 00:24:57,116 --> 00:25:00,756 Speaker 1: all of the cases in New York. How many were there, Well, 367 00:25:01,716 --> 00:25:06,276 Speaker 1: we know voluntarily that fifteen hundred people came forward in 368 00:25:07,196 --> 00:25:11,996 Speaker 1: five dioceses in New York. Oh and fourteen hundred and 369 00:25:12,116 --> 00:25:17,356 Speaker 1: ninety seven of the fifteen hundred we resolved. The victims 370 00:25:17,396 --> 00:25:20,796 Speaker 1: don't have to accept Feinberger's judgment, and yet they do. 371 00:25:21,676 --> 00:25:25,836 Speaker 1: But why, I mean, why do these controversies always find 372 00:25:25,996 --> 00:25:29,356 Speaker 1: him or he them? And how is it that he 373 00:25:29,436 --> 00:25:35,156 Speaker 1: always and I mean always gets to a resolution. Well, 374 00:25:35,196 --> 00:25:40,436 Speaker 1: I think that there are a couple of characteristics. Don't 375 00:25:40,596 --> 00:25:46,276 Speaker 1: underestimate the importance of empathy, the perception that you're trying 376 00:25:46,316 --> 00:25:50,956 Speaker 1: to get into that person's shoes and understand the damage, 377 00:25:51,596 --> 00:25:55,276 Speaker 1: and I think the ability to listen. I've learned the 378 00:25:55,356 --> 00:26:01,636 Speaker 1: hard way. Don't try and express too much empathy. It 379 00:26:01,996 --> 00:26:07,436 Speaker 1: is perceived as hollow. You're not in my shoes, mister Feinberg. 380 00:26:07,956 --> 00:26:13,916 Speaker 1: You're a higher gun. You can empathize and express support 381 00:26:15,716 --> 00:26:18,956 Speaker 1: without saying things like I've said in my early years, 382 00:26:19,116 --> 00:26:22,836 Speaker 1: I know how you feel. I said that one to 383 00:26:22,916 --> 00:26:25,956 Speaker 1: one person who lost a son in the World's the 384 00:26:26,076 --> 00:26:30,356 Speaker 1: Pentagon nine eleven attacks. Eighty three year old man buried 385 00:26:30,356 --> 00:26:33,556 Speaker 1: his son and he said, mister Fiber, you're telling me 386 00:26:33,716 --> 00:26:38,916 Speaker 1: you know how I feel. You have no idea how 387 00:26:39,036 --> 00:26:42,756 Speaker 1: I feel, and it sounds pretentious. And I'm just telling you. 388 00:26:42,756 --> 00:26:46,596 Speaker 1: You've got a tough job. But in the future, people 389 00:26:46,716 --> 00:26:50,156 Speaker 1: like you listening to them. They do. It's very odd 390 00:26:50,156 --> 00:26:53,276 Speaker 1: for someone who talks. If you're a talker too, you 391 00:26:53,556 --> 00:26:57,076 Speaker 1: learn right. Yes, so most people are talker, don't listen. 392 00:26:57,116 --> 00:27:00,396 Speaker 1: You learn to listen. Sometimes I think that all people 393 00:27:00,436 --> 00:27:02,796 Speaker 1: who are really good at what they do are like magicians. 394 00:27:04,156 --> 00:27:07,316 Speaker 1: Asking them how they do it is rude. They don't 395 00:27:07,316 --> 00:27:10,876 Speaker 1: really want to tell you. They shouldn't tell you because 396 00:27:10,876 --> 00:27:14,436 Speaker 1: if they tell you, they ruin the trick. But Ken Feinberg, 397 00:27:14,916 --> 00:27:17,916 Speaker 1: he took money away from guys who ran Wall Street banks. 398 00:27:18,836 --> 00:27:23,676 Speaker 1: I don't know how anyone does that. I thought that 399 00:27:23,796 --> 00:27:28,116 Speaker 1: in cutting the pay of the CFO of City Bank, 400 00:27:29,436 --> 00:27:33,196 Speaker 1: I would go to the CFO and say you don't 401 00:27:33,236 --> 00:27:38,356 Speaker 1: need three cars, and you don't need a home on 402 00:27:38,396 --> 00:27:42,116 Speaker 1: Lone Island in the summer, and therefore I'm going to 403 00:27:42,156 --> 00:27:46,796 Speaker 1: cut your pay by eight and you get pushedback. I 404 00:27:46,916 --> 00:27:49,236 Speaker 1: figured about who you to tell me what I need? 405 00:27:49,556 --> 00:27:53,956 Speaker 1: You get victimology. I love these Wall Street victims. You 406 00:27:54,076 --> 00:27:59,316 Speaker 1: get the CFOs saying you're cutting me by eighty percent. 407 00:28:01,316 --> 00:28:08,076 Speaker 1: You have made a determination of my self worth. When 408 00:28:08,116 --> 00:28:10,676 Speaker 1: I look in the mirror in the morning, I'm not 409 00:28:10,796 --> 00:28:15,916 Speaker 1: thinking about two cars. If you cut my pay, you 410 00:28:15,956 --> 00:28:20,676 Speaker 1: are telling me I'm not worth what I was getting. 411 00:28:20,756 --> 00:28:23,316 Speaker 1: They said this kind of thing. Oh my goodness, this 412 00:28:23,476 --> 00:28:28,556 Speaker 1: was a curveball. This was a curveball. You see. It's 413 00:28:28,636 --> 00:28:32,996 Speaker 1: not about material gain. If you dare come to me 414 00:28:33,196 --> 00:28:37,836 Speaker 1: and say I'm only worth twenty percent of what I 415 00:28:37,956 --> 00:28:44,516 Speaker 1: was worth last year, you have made a determination that 416 00:28:44,676 --> 00:28:49,676 Speaker 1: my life is meaningless, that I'm only worth a fraction 417 00:28:50,156 --> 00:28:52,876 Speaker 1: of what I thought i'm worth. What's your response to this. 418 00:28:54,116 --> 00:28:56,356 Speaker 1: I'm not a rabbi or a priest, you kind of 419 00:28:56,396 --> 00:29:00,076 Speaker 1: are No, Yeah, Feinberg doesn't want to go there. Part 420 00:29:00,116 --> 00:29:01,916 Speaker 1: of his job, as he sees it, is to resist 421 00:29:01,916 --> 00:29:05,396 Speaker 1: the temptation to make anything personal, to expect some connection 422 00:29:05,476 --> 00:29:06,956 Speaker 1: with the people on the other end of his work. 423 00:29:08,276 --> 00:29:11,476 Speaker 1: I put it this way, Never take on one of 424 00:29:11,516 --> 00:29:21,076 Speaker 1: these assignments and expect thank you, gratitude, appreciation. It never 425 00:29:21,676 --> 00:29:28,476 Speaker 1: ever happens. Never. The most STU can hope for is resignation. 426 00:29:29,436 --> 00:29:32,396 Speaker 1: And why is that, Well, because you know, if you're 427 00:29:32,396 --> 00:29:35,636 Speaker 1: worried about stuff like that, you're going to split the baby. 428 00:29:36,116 --> 00:29:41,596 Speaker 1: You can't worry about how you'll be perceived post mediation, 429 00:29:42,916 --> 00:29:45,556 Speaker 1: just like a referee in a basketball game can't be 430 00:29:45,636 --> 00:29:48,956 Speaker 1: worried about how the a team or a player will 431 00:29:48,996 --> 00:29:51,516 Speaker 1: feel about that referee based on a call that he 432 00:29:51,636 --> 00:29:54,516 Speaker 1: made or she made. You just have to do your 433 00:29:54,596 --> 00:29:59,396 Speaker 1: job and have enough sense of self. He's been doing 434 00:29:59,436 --> 00:30:03,796 Speaker 1: this work for forty years now. He's interacted with countless 435 00:30:03,876 --> 00:30:10,796 Speaker 1: victims and perpetrators of tragedies. It feels incredib personal, but 436 00:30:10,876 --> 00:30:14,916 Speaker 1: no one stays in touch with Ken Feinberg. One nine 437 00:30:15,036 --> 00:30:18,396 Speaker 1: eleven victims sent me flowers on the nine to eleven 438 00:30:18,476 --> 00:30:23,996 Speaker 1: date for about fifteen years one. And I think it's 439 00:30:24,276 --> 00:30:29,876 Speaker 1: very important to deliberately push people away and say, this 440 00:30:29,956 --> 00:30:34,076 Speaker 1: is a horrible chapter. Move on as best you can. 441 00:30:34,596 --> 00:30:38,316 Speaker 1: It's not easy, and I'm not minimizing it, but move 442 00:30:38,396 --> 00:30:42,236 Speaker 1: on as best you can. Don't look back to this 443 00:30:42,396 --> 00:30:45,636 Speaker 1: program or to me or the money. Just move on. 444 00:30:46,356 --> 00:30:51,316 Speaker 1: And so you push them away. Oh, absolutely, deliberately push 445 00:30:51,356 --> 00:30:55,556 Speaker 1: them away. I gotta say I don't feel pushed away, 446 00:30:55,676 --> 00:30:58,516 Speaker 1: at least not sitting on Feinberg's couch. But I notice 447 00:30:58,596 --> 00:31:00,636 Speaker 1: he's got me on the edge of my seat, wondering 448 00:31:00,636 --> 00:31:03,636 Speaker 1: when he's going to erupt and fill the air with 449 00:31:03,716 --> 00:31:07,356 Speaker 1: exclamation points. He's obviously got several traits that make him 450 00:31:07,356 --> 00:31:09,236 Speaker 1: good at what he does. I can think of at 451 00:31:09,276 --> 00:31:11,956 Speaker 1: least four, none of which he mentions until I pester 452 00:31:12,076 --> 00:31:15,276 Speaker 1: him a bit. This is our second interview, by the way, 453 00:31:15,396 --> 00:31:19,276 Speaker 1: so I'm actually repasting him. And you told me it 454 00:31:19,396 --> 00:31:22,116 Speaker 1: was a throwaway line at the end of our interview. 455 00:31:22,196 --> 00:31:26,676 Speaker 1: We did that. You actually hit refereed. Uh. You umpired 456 00:31:26,676 --> 00:31:29,316 Speaker 1: baseball games in the eighth grade maybe, and refereed basketball 457 00:31:29,316 --> 00:31:32,756 Speaker 1: games in high school. Uh. And I couldn't believe you 458 00:31:32,836 --> 00:31:35,316 Speaker 1: buried that that's you buried the lead, as they say 459 00:31:35,316 --> 00:31:38,756 Speaker 1: in the newsroom, when you were a kid, How did 460 00:31:38,756 --> 00:31:42,836 Speaker 1: you discover this interest in being in that role? He 461 00:31:42,916 --> 00:31:47,276 Speaker 1: likes being in charge. That's Ken's wife, d D. She 462 00:31:47,476 --> 00:31:54,476 Speaker 1: knows the first quality ego. He likes being in charge. Yeah, 463 00:31:54,516 --> 00:31:57,476 Speaker 1: but he But but you've got to be shrewd about 464 00:31:57,476 --> 00:31:59,476 Speaker 1: how you're in charge because otherwise people take away the 465 00:31:59,516 --> 00:32:04,436 Speaker 1: privilege es. No, they aren't exclusive qualities, but you've got 466 00:32:04,676 --> 00:32:06,676 Speaker 1: If you don't pick the teams fairly, you won't be 467 00:32:06,676 --> 00:32:12,956 Speaker 1: allowed to pick the teams next time. Second quality political sense, shrewdness, 468 00:32:14,036 --> 00:32:18,436 Speaker 1: a kind of esp about disputes, a nose for those 469 00:32:18,476 --> 00:32:21,916 Speaker 1: that can be refereed and those that cannot. For example, 470 00:32:21,996 --> 00:32:26,196 Speaker 1: somebody says, you know, why don't you get the Israelis 471 00:32:26,196 --> 00:32:29,356 Speaker 1: and the Arabs to sit down and you can get 472 00:32:29,436 --> 00:32:32,156 Speaker 1: them t yes in the Middle East? And I would 473 00:32:32,196 --> 00:32:35,156 Speaker 1: say that, I say to people, that's not true. I 474 00:32:35,156 --> 00:32:37,436 Speaker 1: wouldn't take on that assignment. You cannot get to us 475 00:32:37,516 --> 00:32:40,436 Speaker 1: and that assignment because for one thing, you can't get 476 00:32:40,436 --> 00:32:43,236 Speaker 1: the right people at the table to get to us. 477 00:32:43,396 --> 00:32:45,796 Speaker 1: You sit down, as I read the newspapers, you sit 478 00:32:45,796 --> 00:32:47,876 Speaker 1: down with a group of Arabs and say, well, they 479 00:32:47,876 --> 00:32:50,516 Speaker 1: don't get to yes with Israel, and the Arabs may 480 00:32:50,556 --> 00:32:54,316 Speaker 1: say yes, they can't deliver their own group people. So 481 00:32:54,356 --> 00:32:57,276 Speaker 1: I mean, that's a typical assignment where I would say, no, 482 00:32:57,436 --> 00:33:02,556 Speaker 1: thank you, Ken, why don't you mediate resolution of congressional polarization, 483 00:33:03,436 --> 00:33:07,116 Speaker 1: let's get inner room, and why don't you help them 484 00:33:07,156 --> 00:33:13,636 Speaker 1: get to yes? Possible? It would want me, Actually, they 485 00:33:13,636 --> 00:33:17,276 Speaker 1: would want him. He just wouldn't want them because in 486 00:33:17,276 --> 00:33:20,716 Speaker 1: those situations he'd lose something more than his time, he'd 487 00:33:20,716 --> 00:33:23,676 Speaker 1: lose a sense of who he is. That's the third quality. 488 00:33:23,716 --> 00:33:27,036 Speaker 1: Fineberg has a kind of total immersion in the role 489 00:33:27,356 --> 00:33:32,156 Speaker 1: of Ken Feinberg. How many kids do you have? Three? 490 00:33:32,556 --> 00:33:38,036 Speaker 1: And how they're How old are they today? Forty one, 491 00:33:38,076 --> 00:33:40,636 Speaker 1: thirty nine, and thirty six? So when they were a 492 00:33:40,636 --> 00:33:42,556 Speaker 1: little and they were growing up, what role did he 493 00:33:42,676 --> 00:33:45,236 Speaker 1: play in disputes in the household? You got it, You 494 00:33:45,396 --> 00:33:48,756 Speaker 1: nailed it right on the head. I was I was 495 00:33:48,796 --> 00:33:50,996 Speaker 1: the mom who stayed at home with kids, and he 496 00:33:51,076 --> 00:33:54,356 Speaker 1: was the one who just walked in the house at 497 00:33:54,356 --> 00:33:56,636 Speaker 1: the end of the day, and I had him settled disputes. 498 00:33:57,876 --> 00:34:00,316 Speaker 1: We'd sit at the dinner table and we would hold court. 499 00:34:00,756 --> 00:34:04,596 Speaker 1: Was he good? Yeah, he was good. So you know 500 00:34:04,716 --> 00:34:08,356 Speaker 1: what's interesting this is I think that I shy from 501 00:34:08,396 --> 00:34:11,836 Speaker 1: conflict because I have like two modes. It's either we're 502 00:34:11,836 --> 00:34:14,276 Speaker 1: in a fist fight or we're just getting along. I 503 00:34:14,276 --> 00:34:16,556 Speaker 1: don't have them. I'm very bad at the middle ground. 504 00:34:16,556 --> 00:34:20,316 Speaker 1: My wife's army about this all the time, right, And 505 00:34:20,956 --> 00:34:23,996 Speaker 1: so it's it's I don't like people shouting at me. 506 00:34:24,156 --> 00:34:26,996 Speaker 1: I don't like people upset with me. I respond very 507 00:34:27,036 --> 00:34:28,796 Speaker 1: badly to it. So when I'm put in the middle 508 00:34:28,836 --> 00:34:32,636 Speaker 1: of a dispute, I don't usually respond that well to it. 509 00:34:33,876 --> 00:34:36,836 Speaker 1: I have trouble remaining neutral and keeping myself out of it. 510 00:34:37,396 --> 00:34:40,596 Speaker 1: And it sounds like you just don't sound like you 511 00:34:40,676 --> 00:34:42,836 Speaker 1: really don't. You know, when I try to draw Ken 512 00:34:42,876 --> 00:34:46,396 Speaker 1: Feinberg out about himself, he's either already got a story 513 00:34:46,436 --> 00:34:49,436 Speaker 1: at hand, or he acts like he hasn't heard the question. 514 00:34:50,476 --> 00:34:53,076 Speaker 1: So we're lucky as wife's here. On the flip side, 515 00:34:53,116 --> 00:34:56,716 Speaker 1: we've been married forty three years. We've never had a fight. 516 00:34:57,676 --> 00:35:01,556 Speaker 1: I've had a lot of arguments, but we have never 517 00:35:01,636 --> 00:35:06,316 Speaker 1: had one. But he doesn't engage. You've never had a 518 00:35:06,356 --> 00:35:10,916 Speaker 1: fight away, but there won't be confrontation it's a lot 519 00:35:10,956 --> 00:35:15,196 Speaker 1: of self control at his partner. There can't be many 520 00:35:15,276 --> 00:35:19,076 Speaker 1: married couples in America who've been married more than a 521 00:35:19,076 --> 00:35:25,036 Speaker 1: few years. I'm arguing, I'm getting agitated and raising my voice, 522 00:35:25,076 --> 00:35:28,476 Speaker 1: and you know, I just can't and he won't give 523 00:35:28,476 --> 00:35:32,396 Speaker 1: you anything back. To enter into a dispute as their participant, 524 00:35:32,796 --> 00:35:35,956 Speaker 1: even with his family, would be a violation of his 525 00:35:35,996 --> 00:35:38,116 Speaker 1: inner nature or at least some pact he's made with 526 00:35:38,196 --> 00:35:43,916 Speaker 1: himself to stay removed apart the neutral. A character who's 527 00:35:43,956 --> 00:35:48,836 Speaker 1: maybe just a little bit feared. That's the fourth quality. 528 00:35:48,836 --> 00:35:54,596 Speaker 1: Fineberg has a willingness to intimidate, not with force, but 529 00:35:54,756 --> 00:35:58,956 Speaker 1: with force of character. And all Israel heard of the 530 00:35:59,076 --> 00:36:03,076 Speaker 1: judgment which the king had rendered, and they feared the king, 531 00:36:03,556 --> 00:36:06,436 Speaker 1: for they saw that the wisdom of God was in 532 00:36:06,556 --> 00:36:10,996 Speaker 1: him to administer justice. Okay, so it was my idea 533 00:36:11,036 --> 00:36:13,636 Speaker 1: to have Ken Feinberg read the Bible. But it's a 534 00:36:13,676 --> 00:36:18,556 Speaker 1: funny choice of words. They feared the king not because 535 00:36:18,556 --> 00:36:22,276 Speaker 1: he threatened them, but because of what his disapproval said 536 00:36:22,316 --> 00:36:28,596 Speaker 1: about them, because he's righteous righteousness. It's not really something 537 00:36:28,636 --> 00:36:34,396 Speaker 1: you can learn if you're looking to hire someone to 538 00:36:34,516 --> 00:36:37,556 Speaker 1: be a mediator. What qualities do you look for I mean, 539 00:36:38,396 --> 00:36:42,156 Speaker 1: I take a minority view. I think I believe that 540 00:36:42,316 --> 00:36:44,676 Speaker 1: mediators are born, not made. I don't think you can 541 00:36:44,756 --> 00:36:47,396 Speaker 1: train somebody to be an effective mediator. They either have 542 00:36:47,516 --> 00:36:52,036 Speaker 1: the talent and the personality or they don't. Either the 543 00:36:52,076 --> 00:37:01,156 Speaker 1: wisdom of God is in them or it isn't. So 544 00:37:01,436 --> 00:37:05,756 Speaker 1: we're doing a podcast on referees and people mediators and 545 00:37:05,756 --> 00:37:08,516 Speaker 1: people who kind of resolve conflicts. And so we were 546 00:37:08,836 --> 00:37:11,276 Speaker 1: we were ye for recess to talk to the fifth 547 00:37:11,316 --> 00:37:14,676 Speaker 1: grades because they're the ones they were, you know in battle. 548 00:37:14,676 --> 00:37:17,676 Speaker 1: Were you, I assume if you're sixth rade this year? 549 00:37:17,796 --> 00:37:21,476 Speaker 1: But did you? Did you? Were you the kind of 550 00:37:21,476 --> 00:37:23,956 Speaker 1: person who got involved in other people's conflicts last year? 551 00:37:24,076 --> 00:37:26,676 Speaker 1: I mean, it depends on what we were doing. I 552 00:37:26,716 --> 00:37:28,916 Speaker 1: would often solve the conflicts, is how I was playing, 553 00:37:29,596 --> 00:37:32,196 Speaker 1: because like that's just what I like to do. But 554 00:37:32,276 --> 00:37:36,516 Speaker 1: you know, so it depends if I'm yeah, I do 555 00:37:36,676 --> 00:37:38,796 Speaker 1: like to do it, but it depends if I am 556 00:37:38,876 --> 00:37:41,276 Speaker 1: playing the sport, like if I'm playing, if I'm not 557 00:37:41,316 --> 00:37:43,316 Speaker 1: playing all just like today out of it just because 558 00:37:43,356 --> 00:37:46,916 Speaker 1: like I don't know why. So what do you like 559 00:37:46,996 --> 00:37:51,596 Speaker 1: about the peace process and getting involved in two people 560 00:37:51,636 --> 00:37:56,156 Speaker 1: who are violating it. Um. I mean, I guess it's 561 00:37:56,196 --> 00:38:00,476 Speaker 1: just um, it's just um. I just feel proud because 562 00:38:00,476 --> 00:38:05,636 Speaker 1: then it's like seeing their faces they're like, okay, okay, yeah, 563 00:38:05,716 --> 00:38:08,876 Speaker 1: you know you actually it actually works. Yeah, it works sometimes. 564 00:38:17,076 --> 00:38:20,996 Speaker 1: I'm Michael Lewis. Thanks for listening to Against the Rules. 565 00:38:21,276 --> 00:38:23,916 Speaker 1: Against the Rules is brought to you by Pushkin Industries. 566 00:38:24,596 --> 00:38:27,796 Speaker 1: The show is produced by Audrey Dilling and Kathin and Girardo, 567 00:38:28,236 --> 00:38:31,316 Speaker 1: with research assistance from Zoe, Oliver Gray and Beth Johnson. 568 00:38:32,116 --> 00:38:37,276 Speaker 1: Our editor is Julia Barton. Mia Lobelle is our executive producer. 569 00:38:38,516 --> 00:38:41,836 Speaker 1: Our theme was composed by Nick Brittel, with additional scoring 570 00:38:41,836 --> 00:38:46,116 Speaker 1: by Seth Samuel, mastering by Jason Gambrel. Our show was 571 00:38:46,156 --> 00:38:50,516 Speaker 1: recorded by Tofa Ruth at Northgate Studios in Berkeley. Special 572 00:38:50,556 --> 00:38:54,636 Speaker 1: thanks to our founders, Jacob Weisberg and Malcolm Gladwell.