WEBVTT - The Neutral 0:00:15.276 --> 0:00:22.676 Pushkin. Now, two women who were harlots came to the 0:00:22.756 --> 0:00:27.956 king and stood before him, and one woman said, oh, 0:00:28.076 --> 0:00:31.436 my Lord, this woman and I dwell in the same house, 0:00:32.236 --> 0:00:34.956 and I gave birth while she was in the house. 0:00:35.956 --> 0:00:41.636 Then it happened Old Testament, first King's three sixteen. There 0:00:41.636 --> 0:00:44.756 are these two women, one whose baby has died, the 0:00:44.796 --> 0:00:48.556 other whose baby is still alive. Each claims the living 0:00:48.556 --> 0:00:51.476 baby as her own. They go to the new King 0:00:51.836 --> 0:00:59.236 Solomon and ask him to sort it all out. In 0:00:59.316 --> 0:01:03.436 the night, this woman's child died because she lay upon it. 0:01:04.236 --> 0:01:07.476 Wherefore she removed my son from beside me while I slipped, 0:01:07.916 --> 0:01:12.396 and they'd had dead child wild against marbles Chila. This 0:01:12.476 --> 0:01:16.556 is from the somewhat less than classic film Solomon and Sheba. 0:01:16.716 --> 0:01:19.796 The women are shushed by King Solomon played by Yule 0:01:19.876 --> 0:01:22.796 Brenner in whatever they use for spray tan in nineteen 0:01:22.876 --> 0:01:26.116 fifty nine. The living child is mine, the dead is yours. 0:01:26.156 --> 0:01:29.796 The dead is yours, the living mine. Bring the infant forward. 0:01:30.596 --> 0:01:34.596 A guard puts the baby down, and then yule Brenner 0:01:34.676 --> 0:01:40.436 tells him to draw his sword, divide the child into 0:01:40.436 --> 0:01:45.796 two parts. Give half to the one woman, half to 0:01:45.876 --> 0:01:48.876 the other. Many close ups of people looking horrified. Here, 0:01:50.116 --> 0:01:55.316 Oh no, if it must be give the child to her, 0:01:55.876 --> 0:01:58.636 that it may not be slay divided, it should be 0:01:58.636 --> 0:02:06.036 neither has nor mine as non fiction is not totally believable. 0:02:06.716 --> 0:02:08.996 I mean, why would either woman want to see the 0:02:08.996 --> 0:02:12.596 baby cut in half? Even the liar wants a live baby, 0:02:12.636 --> 0:02:15.796 not a dead one. But Solomon's such a good character. 0:02:16.236 --> 0:02:20.676 No one cares make your son mother, He's surely yours 0:02:21.156 --> 0:02:27.236 would rather have surrendered him to another than to seem harmed. Now, 0:02:27.276 --> 0:02:31.036 at last, I have seen a judgment of Solomon, and 0:02:31.236 --> 0:02:36.076 your wisdom amazes me. That's Sheba. The ladies do love 0:02:36.076 --> 0:02:40.196 the wisdom, even if it isn't all that wise. Solomon's 0:02:40.236 --> 0:02:42.436 trick only works if the baby thief is suddenly happy 0:02:42.476 --> 0:02:45.556 to see it killed and stupid enough to show it. Otherwise, 0:02:45.556 --> 0:02:49.116 he's got nothing worse than nothing to save face. He'd 0:02:49.116 --> 0:02:51.156 probably need to go through with it and cut a 0:02:51.196 --> 0:02:54.036 totally innocent baby in half and then wears it. Leave 0:02:54.116 --> 0:02:56.676 him as the guy who began his reign as the 0:02:56.756 --> 0:03:00.916 king of Israel by cutting babies in half. Still, if 0:03:00.956 --> 0:03:04.516 referees have an origin story, this is it, and it's 0:03:04.516 --> 0:03:08.716 got two ideas buried inside. And all Israel heard of 0:03:08.716 --> 0:03:12.476 the judgment which the king had rendered, and they feared 0:03:12.476 --> 0:03:15.756 the king, for they saw that the wisdom of God 0:03:15.996 --> 0:03:20.676 was in him to administer justice. That's the last line 0:03:20.716 --> 0:03:24.076 of the story and the first idea. The job of 0:03:24.116 --> 0:03:27.356 the referee is so hard to do that doing it 0:03:27.436 --> 0:03:34.796 really well is a sign of divine inspiration. Another idea 0:03:34.996 --> 0:03:36.956 is sort of taken for granted right from the start, 0:03:37.836 --> 0:03:40.076 that the job needs to be done at all, that 0:03:40.156 --> 0:03:43.636 when two squabbling human beings go looking for justice, they 0:03:43.636 --> 0:03:46.116 should turn to some other human being to act as 0:03:46.116 --> 0:03:49.196 a neutral third party, as if human beings weren't the 0:03:49.236 --> 0:03:52.876 problem in the first place. But people are just no 0:03:52.956 --> 0:03:55.996 good at resolving their own conflicts. Any parent of more 0:03:55.996 --> 0:03:58.956 than one child knows this, so does every teacher, a lawyer, 0:03:58.956 --> 0:04:01.716 and cop. We just take it for granted that we 0:04:01.756 --> 0:04:06.236 need legal systems, both formal and informal, and we just 0:04:06.316 --> 0:04:09.756 assume that some totally innocent third party will want to 0:04:09.756 --> 0:04:13.596 help us to resolve even our most petty disputes. We 0:04:13.716 --> 0:04:17.156 never ask why should someone with no real interest in 0:04:17.156 --> 0:04:20.756 our conflicts be better at refereeing them than we are. 0:04:21.556 --> 0:04:25.196 And we also don't ask would actually make someone good 0:04:25.436 --> 0:04:35.036 at this job no one wants. I'm Michael Lewis and 0:04:35.196 --> 0:04:38.916 This is Against the Rules, a show about the attack 0:04:38.956 --> 0:04:41.916 on the authority of referees in American life and what 0:04:42.156 --> 0:04:54.276 that's doing to our idea of fairness. A few months ago, 0:04:54.716 --> 0:04:57.036 I was at a bar in Washington, d C. With 0:04:57.116 --> 0:04:59.836 a friend of mine who's a sports writer, Rob Nyer. 0:05:01.316 --> 0:05:02.996 He's the opposite of what you think of when you 0:05:02.996 --> 0:05:09.476 think of sports writer. Quiet, well mannered, almost shy. He's 0:05:09.516 --> 0:05:17.156 a fan, but he's never fanatical. He's like his writing, cool, analytical, detached. 0:05:18.236 --> 0:05:21.476 But then at the bar, his cell phone rang. He 0:05:21.516 --> 0:05:25.396 looked at the number, got all agitated. All I hate 0:05:25.436 --> 0:05:27.916 my life. I hate these people who keep calling me, 0:05:28.396 --> 0:05:31.436 but I have to take this one. I'd never seen 0:05:31.516 --> 0:05:36.116 him like this. He spent twenty minutes pacing around outside 0:05:36.876 --> 0:05:41.676 on his phone, came back a total wreck, angry, distracted, 0:05:42.076 --> 0:05:45.916 incapable of pleasure. It was this new job he'd taken, 0:05:45.996 --> 0:05:50.996 he said, As commissioner of an amateur baseball league, I 0:05:51.036 --> 0:05:54.756 would travel around, visit every team eleven ballparks, which is 0:05:55.836 --> 0:05:58.476 for most baseball fans, that's sort of a dream come true. 0:05:58.836 --> 0:06:00.956 Why would I not agree to all of that. It 0:06:01.036 --> 0:06:04.556 was known as the West Coast League. The teams were 0:06:04.596 --> 0:06:07.836 all owned by rich guys. They had persuaded Rob to 0:06:07.876 --> 0:06:12.236 become the league's public face, it's symbolic leader. These rich 0:06:12.276 --> 0:06:15.356 guys love the game. Rob loved the game. What could 0:06:15.396 --> 0:06:18.916 go wrong? Well, it turned out that these owners argued 0:06:18.956 --> 0:06:23.196 amongst themselves a lot. Their coaches and players fought with 0:06:23.236 --> 0:06:27.476 each other too, and everyone fought with the umpires. They 0:06:27.516 --> 0:06:30.156 expected Rob, as commissioner, to get in the middle of 0:06:30.156 --> 0:06:33.756 all these fights and referee them. But the rich guys 0:06:33.796 --> 0:06:36.796 hated to be refereed unless the call went their way. 0:06:37.876 --> 0:06:39.396 That's what the phone call had been about. In the 0:06:39.396 --> 0:06:45.636 Washington Bar, yet another dispute. The umpire reported that the 0:06:45.676 --> 0:06:49.676 head coach poked him with his finger, and this was 0:06:49.716 --> 0:06:51.996 the second time that this head coach had been suspended. 0:06:51.996 --> 0:06:56.076 The first time he had sprayed, whether inadvertently or not, 0:06:56.156 --> 0:07:02.276 the rules don't make a distinction. Sprayed with saliva an umpire, 0:07:02.676 --> 0:07:05.756 so he was suspended at that time, and then just 0:07:05.796 --> 0:07:10.676 a couple of weeks later reported the according to the 0:07:10.756 --> 0:07:15.716 umpire's report, poked the umpire. Unfortunately, the video was inconclusive, 0:07:16.236 --> 0:07:19.076 so I felt like I had to take the umpire's 0:07:19.756 --> 0:07:24.716 report at face value. Rob suspended the head coach again, 0:07:25.316 --> 0:07:27.636 thus pissing off the owner, who blamed the whole thing 0:07:27.676 --> 0:07:30.196 on the umpire, with whom he now thought Rob was 0:07:30.196 --> 0:07:33.396 in some sort of secret alliance. For his part, Rob 0:07:33.436 --> 0:07:35.916 couldn't see what he'd done to deserve this. No one 0:07:35.916 --> 0:07:38.276 asked if he had some special talent for refing other 0:07:38.316 --> 0:07:42.276 people's disputes. They just sort of assumed he'd figure it out, 0:07:43.116 --> 0:07:46.436 which he was trying to do. You have to as 0:07:46.436 --> 0:07:49.916 a league, you you have to have an incredibly compelling 0:07:49.956 --> 0:07:53.996 reason to dispute the report or the integrity of an umpire. 0:07:54.076 --> 0:07:58.676 Otherwise you just lose control. Anarchy. That night in the bar, 0:07:59.356 --> 0:08:02.196 that was when Rob had realized that he was losing control, 0:08:03.516 --> 0:08:07.956 that in this amateur baseball league it was anarchy. I 0:08:08.036 --> 0:08:11.516 had just covered two days after the fact that the 0:08:12.156 --> 0:08:16.796 head coach actually did not serve his suspension. So yes, 0:08:16.876 --> 0:08:21.996 I mean I was apoplectic because you what am I 0:08:21.996 --> 0:08:23.796 supposed to do? Now? So what did you do to him? 0:08:25.196 --> 0:08:28.676 I suspended the owner for three games and levied a 0:08:29.876 --> 0:08:34.876 relatively small fine. And how did he respond to that? Not? Well, no, 0:08:35.036 --> 0:08:37.916 not well at all. The owner had screamed at him, 0:08:38.396 --> 0:08:41.116 accused him of somehow being on the take from another 0:08:41.156 --> 0:08:45.476 team's owner. But Rob was just doing his job enforcing 0:08:45.476 --> 0:08:50.356 the rules, which sounds simple, right, I mean, Solomon did it. 0:08:51.476 --> 0:08:55.556 But it turns out there's a great deal of ambiguity 0:08:55.796 --> 0:08:59.596 in the rules. For example, there is a rule against 0:09:00.156 --> 0:09:05.076 prolonging an argument after an injection, but there's no definition 0:09:05.116 --> 0:09:08.716 of prolonging. And now I have to go read all 0:09:08.716 --> 0:09:11.836 these things and watch video and try to make some 0:09:11.876 --> 0:09:16.956 sort of reasonable determination, and almost invariably neither side is 0:09:16.996 --> 0:09:20.076 happy ultimately with my decision. What kind of person would 0:09:20.196 --> 0:09:28.396 enjoy being in the middle, Well, my it's a good question. 0:09:29.196 --> 0:09:33.116 I keep getting this sneaking suspicion that there are at 0:09:33.156 --> 0:09:38.716 least a few people in the league who actually enjoy conflict, 0:09:38.756 --> 0:09:42.596 who thrive on it. I don't know if that's true. 0:09:43.636 --> 0:09:45.996 Maybe they can't help themselves, and maybe the conflict makes 0:09:46.036 --> 0:09:48.716 them as miserable as it makes me. I don't know, 0:09:49.156 --> 0:09:51.676 And I've actually tried to reason with people, these people 0:09:51.716 --> 0:09:56.156 who seem to enjoy it, because there's a part of 0:09:56.156 --> 0:09:59.116 me the things they can't be having fun yelling at you, 0:09:59.116 --> 0:10:02.676 can they of course they can. People love to scream 0:10:02.716 --> 0:10:06.076 it refs. They do it all the time. And the 0:10:06.156 --> 0:10:08.596 same people who love to scream it refs also just 0:10:08.596 --> 0:10:10.716 sort of a zoom. The ref's job is to sit 0:10:10.756 --> 0:10:14.276 there and take it. I told Rob all this, but 0:10:14.356 --> 0:10:17.156 it didn't seem to make him any happier. So I 0:10:17.196 --> 0:10:21.756 asked him was there anything he liked about his new job? Oh? No, no, 0:10:21.956 --> 0:10:25.356 why not? How at the end of the day, how 0:10:25.876 --> 0:10:31.116 do you feel good knowing that someone is upset with 0:10:31.196 --> 0:10:34.676 you and might be questioning your integrity. Rob had clearly 0:10:34.756 --> 0:10:37.396 never been a ref, and he was learning that he 0:10:37.476 --> 0:10:39.996 wasn't cut out for it. I probably couldn't be an 0:10:40.036 --> 0:10:48.596 umpire because my first reaction would probably be to start fighting. 0:10:49.236 --> 0:10:50.876 So you'd just be out there. You'd be out there 0:10:50.996 --> 0:10:53.636 throwing sledgehammer punches at the people who came up to 0:10:53.716 --> 0:10:56.756 argue with you. Well, I wouldn't be good at throwing punches, 0:10:56.796 --> 0:10:58.796 but yes, I would be throwing punches. The first time 0:10:58.836 --> 0:11:02.316 someone got inchest from my face and started screaming profanities 0:11:02.316 --> 0:11:04.036 at me, I would lose it. I mean, I have 0:11:04.156 --> 0:11:06.516 road rage issues, Not that I've ever done anything, but 0:11:06.516 --> 0:11:08.476 but I have that impulse so they need to find 0:11:08.476 --> 0:11:11.116 a different kind of person to do this job. Well, 0:11:11.156 --> 0:11:13.476 I don't want to fire myself, but I would recommend 0:11:13.516 --> 0:11:17.356 someone else. Yeah. Sure, I've watched Rob work for years 0:11:17.436 --> 0:11:20.636 on a book and overcome all sorts of obstacles. But 0:11:20.756 --> 0:11:22.756 just a few months into his career as a referee, 0:11:22.836 --> 0:11:25.996 he's already looking to quit hand the job to someone else. 0:11:26.716 --> 0:11:31.716 But to whom I mean that generally, not just in baseball, 0:11:32.076 --> 0:11:35.636 In all the places where disputes need resolving, the job 0:11:35.756 --> 0:11:39.516 obviously needs doing, maybe more than ever, But what sort 0:11:39.516 --> 0:11:52.316 of person can do it? Back in nineteen seventy nine, 0:11:52.756 --> 0:11:55.956 a huge number of Vietnam vets filed a lawsuit against 0:11:56.036 --> 0:12:00.236 Monsanto and Dow Chemical and other companies that had manufactured 0:12:00.276 --> 0:12:04.636 a herbicide called Agent Orange. Millions of gallons of the 0:12:04.676 --> 0:12:07.756 stuff had been dumped under the Vietnamese jungles to kill 0:12:07.796 --> 0:12:12.396 the plant cover used by the Vietcong. Thousands of vets 0:12:12.396 --> 0:12:15.316 exposed to agent Orange believed it was responsible for their 0:12:15.396 --> 0:12:19.156 various health problems. They didn't have much evidence, but the 0:12:19.156 --> 0:12:21.956 companies wanted to settle just to end the whole thing. 0:12:22.996 --> 0:12:26.236 That effort kicked around the courts for five years, but 0:12:26.276 --> 0:12:28.876 no one could find a solution that would satisfy everyone. 0:12:29.876 --> 0:12:32.516 Then the judge decided to see if he could find 0:12:32.556 --> 0:12:36.636 a solution outside the American legal system, to appoint an 0:12:36.636 --> 0:12:43.516 outside mediator, special master the courts called it. And I 0:12:43.716 --> 0:12:47.636 just got a telephone call out of the clear blue 0:12:48.276 --> 0:12:52.236 from a federal judge in Brooklyn, New York. Did he 0:12:52.356 --> 0:12:54.956 explain to you why he thought you'd be good at 0:12:54.996 --> 0:12:59.916 that job? Yes, he said, You've got the personality for it. 0:13:00.476 --> 0:13:05.396 The young lawyer's name was and Is ken Feinberg. A 0:13:05.476 --> 0:13:08.796 case that went unresolved for half a decade, he settled 0:13:09.356 --> 0:13:13.836 in six weeks. A legend was born. I changed my life. 0:13:13.836 --> 0:13:17.036 It changed my professional life. You see. Once I got 0:13:17.036 --> 0:13:20.796 AIGs in Orange resolved and it was on the front 0:13:20.876 --> 0:13:25.316 page of every newspaper in the United States, I started 0:13:25.356 --> 0:13:30.756 getting a flood of calls. Was there any any experience 0:13:30.796 --> 0:13:33.796 in your life before this that was like this where 0:13:33.796 --> 0:13:35.636 you could say, all, I've been in this kind of 0:13:35.676 --> 0:13:40.276 situation before. No. I had been in high school and college. 0:13:40.356 --> 0:13:44.436 I had been an actor on the stage. I had 0:13:44.476 --> 0:13:48.276 thought that I might end up on Broadway. When I 0:13:48.316 --> 0:13:52.796 went to law school in nineteen seventy there was no 0:13:52.916 --> 0:13:59.156 course in mediation or arbitration. There's nothing like that. But 0:13:59.196 --> 0:14:01.916 there was this role that needed to be played in 0:14:01.916 --> 0:14:07.236 American life. It just hadn't been written yet. Feinberg created 0:14:07.316 --> 0:14:12.196 it by sheer force of personality. He wound up running 0:14:12.196 --> 0:14:15.996 the nine to eleven Victims Compensation Fund and met personally 0:14:15.996 --> 0:14:18.476 with the families of the three thousand people who were killed. 0:14:19.116 --> 0:14:21.276 He ran the fund to compensate victims of the BP 0:14:21.436 --> 0:14:24.996 oil spill. After the two thousand and eight financial crisis, 0:14:25.436 --> 0:14:31.276 the United States Congress gave Ken Feinberg sole authority to 0:14:31.396 --> 0:14:33.716 determine the pay of the CEOs of the banks that 0:14:33.756 --> 0:14:37.036 had been bailed out by government money. And that's just 0:14:37.156 --> 0:14:40.596 the start. The Paul snight Club in Orlando, Florida, when 0:14:40.596 --> 0:14:44.436 the terrorists attack, they raised and asked me to distribute 0:14:44.476 --> 0:14:50.436 thirty million. The harvest, Las Vegas shootings from the Mandalay Hotel. 0:14:50.796 --> 0:14:56.916 I killed fifty nine people. They raised thirty million. Distribute 0:14:56.916 --> 0:14:59.596 that money Sandy Hook. They asked me to go up 0:14:59.596 --> 0:15:03.316 to Sandy Hook and decide how should we distribute the money. 0:15:03.796 --> 0:15:08.156 The Pittsburgh Tree of Life Synagogue shootings the next day, 0:15:09.396 --> 0:15:14.796 the Federation of Jewish Philanthropies in Pittsburgh, call, how do 0:15:14.836 --> 0:15:20.516 we distribute this money? It is astounding. One hundred thousand 0:15:20.596 --> 0:15:25.156 people after those Boston Marathon bombings sent in money unsolicited, 0:15:26.276 --> 0:15:29.756 you know, and Mayhem Nino and Governor Patrick said, ken, 0:15:29.916 --> 0:15:34.436 you're from Massachusetts, you grew up here. We want you 0:15:34.476 --> 0:15:38.676 to design and administer a compensation program. Four dead, two 0:15:38.836 --> 0:15:44.476 hundred and forty runners are observers at the finish line, injured, 0:15:45.716 --> 0:15:52.996 sixteen single amputees, two double amputees. Sixty one million distribute 0:15:53.036 --> 0:15:57.876 the money. The mass shooting in a movie theater in Aurora, Colorado. 0:15:58.556 --> 0:16:03.116 The thousands of disputes after Hurricane Katrina between insurance companies 0:16:03.116 --> 0:16:06.916 and homeowners who are covered for wind but not flood damage. 0:16:07.236 --> 0:16:10.556 And they retained me to set up a mediation program. 0:16:11.396 --> 0:16:15.196 Any whole owner wants to participate, voluntarily, Come on in. 0:16:15.836 --> 0:16:20.436 Feinberg will be the neutral. The neutral, This magical extra 0:16:20.556 --> 0:16:25.596 legal character, this gifted referee who drops into a situation 0:16:25.716 --> 0:16:29.836 where people are traumatized, a situation that also might easily 0:16:29.876 --> 0:16:35.996 become ugly and public, and he resolves it quietly, privately, 0:16:36.636 --> 0:16:40.276 and hardly anyone says anything about it, or even knows 0:16:40.356 --> 0:16:45.196 who he is, or just how much power he's wielded. 0:16:46.436 --> 0:16:49.596 That's why victims Advocate John Fia wants everyone who is 0:16:49.596 --> 0:16:52.436 eligible to sign up. We have lost forty two people 0:16:52.476 --> 0:16:55.156 this year alone to nine eleven lady chancers. This will 0:16:55.196 --> 0:16:58.156 provide money to victims families. In all of these programs, 0:16:58.196 --> 0:17:02.036 you have some discretion, but you have to exercise it wisely, 0:17:02.076 --> 0:17:09.236 because the public and the victims are all circling. How 0:17:09.316 --> 0:17:13.876 you strike the balance between paying people enough for their 0:17:13.956 --> 0:17:20.356 loss example Pete nine to eleven and not paying them 0:17:20.396 --> 0:17:22.996 too much. So you couldn't so in dolling out the money, 0:17:23.036 --> 0:17:27.716 you couldn't actually reflect just pure expected earnings. You couldn't. 0:17:28.036 --> 0:17:32.556 You couldn't. The law wisely said, and finebergs shall consider 0:17:33.556 --> 0:17:37.356 expected earnings. And then there's another clause that says, and 0:17:37.476 --> 0:17:41.516 he will see to it that justice is done well. 0:17:41.516 --> 0:17:45.236 That gave me the opening to bring down the top 0:17:45.436 --> 0:17:48.476 and bring up the bottom so that the gap between 0:17:48.516 --> 0:17:51.996 the stockbroker who died and the bus boy who died 0:17:52.556 --> 0:17:55.796 was not to Why what was the difference, the monetary 0:17:55.836 --> 0:17:58.476 difference between what would have happened if you just had 0:17:58.716 --> 0:18:02.076 a raw, cold calculation of lost earnings and what you 0:18:02.116 --> 0:18:04.556 actually did. Oh I think some people I don't know 0:18:04.596 --> 0:18:07.756 how many, but I think some widows or widowers, I 0:18:07.836 --> 0:18:12.156 should say, would have maybe got thirty five million dollars 0:18:12.156 --> 0:18:14.476 in tax to pay it, money which I reduced to 0:18:14.476 --> 0:18:16.716 no more than six and would about on the other end. 0:18:16.956 --> 0:18:19.756 And on the other end, some people might have got 0:18:19.916 --> 0:18:23.476 two hundred thousand dollars, and I increased the bottom to 0:18:23.596 --> 0:18:26.836 up over a million dollars. He turned thirty five million 0:18:26.876 --> 0:18:29.716 dollars into six for the family of a bond trader, 0:18:30.076 --> 0:18:33.156 and two hundred thousand dollars into a million for the 0:18:33.196 --> 0:18:37.356 family of a bus boy, all by himself for free. 0:18:38.316 --> 0:18:41.196 Feinberg refused to be paid for his work settling the 0:18:41.236 --> 0:18:45.476 nine to eleven victims Compensation Fund. He doesn't take money 0:18:45.516 --> 0:18:48.796 after mass shootings either. He just feels it's his duty 0:18:48.836 --> 0:18:53.436 to do the job. And hardly anybody complains about the results. 0:18:53.996 --> 0:18:56.716 Of course, plaintiff lawyers don't like it, but about the 0:18:56.756 --> 0:19:00.556 only principled objection to Ken Feinberg comes from legal scholars 0:19:00.876 --> 0:19:02.996 who worry that his success makes a mockery of the 0:19:03.076 --> 0:19:07.196 legal system. Like this guy. I'm Eric Posner, and I'm 0:19:07.236 --> 0:19:10.276 a professor of law at the University of Chicago. In 0:19:10.396 --> 0:19:13.356 his writing, Posners raise questions about the role that Ken 0:19:13.356 --> 0:19:20.196 Fineberg plays. So the legal system doesn't always reflect people's 0:19:20.836 --> 0:19:24.916 ordinary moral intuitions about how dispute should be solved. To 0:19:25.076 --> 0:19:27.756 give me an example, it's like a concrete example or 0:19:27.756 --> 0:19:32.036 two of outcomes the legal system might generate that would 0:19:32.116 --> 0:19:36.996 violate common sense notions of fairness. So suppose you're driving 0:19:36.996 --> 0:19:41.196 your automobile and you run over a wealthy person and 0:19:41.876 --> 0:19:45.996 kill him. His family sues, you may have to pay 0:19:46.076 --> 0:19:50.196 damages equal to his lost income, which could be millions 0:19:50.236 --> 0:19:53.516 of dollars. And then someone else runs over a poor 0:19:53.596 --> 0:20:00.156 person and the poor person's family sues, and the damages 0:20:00.156 --> 0:20:02.956 that are awarded might just be a few hundred thousand 0:20:02.956 --> 0:20:06.436 dollars or less, just like what might have happened after 0:20:06.516 --> 0:20:10.756 nine to eleven if Fineberg hadn't been there. Because of 0:20:10.796 --> 0:20:14.596 this legal rule that compensates victims in their families based 0:20:14.596 --> 0:20:18.356 on their lost income, that values people's lives by how 0:20:18.396 --> 0:20:22.116 much money they make, and it looks quite unfair because 0:20:22.116 --> 0:20:23.996 it's as if the law is saying that the wealthy 0:20:24.036 --> 0:20:26.956 person's life is worth a lot and the poor person's 0:20:26.996 --> 0:20:30.636 life is worth not that much. And that's very much 0:20:30.636 --> 0:20:37.116 inconsistent with our moral intuitions about equality. This disconnect between 0:20:37.196 --> 0:20:40.156 the common sense notion of what's fair and with the 0:20:40.236 --> 0:20:44.156 legal system produces is allowed to sort of chug along 0:20:44.716 --> 0:20:47.396 until there's a big spotlight thrown on it, like there 0:20:47.436 --> 0:20:51.276 was in nine to eleven. Right, So the legal system 0:20:51.276 --> 0:20:53.796 can chug along as long as you people aren't paying 0:20:53.796 --> 0:20:57.556 too much attention to it. But when there is some 0:20:57.636 --> 0:21:03.836 kind of massive public spotlight on the particular conflict that 0:21:03.876 --> 0:21:07.596 the law is supposed to deal with, people see how 0:21:07.596 --> 0:21:11.836 it operates out of context, and they can get very angry. 0:21:11.916 --> 0:21:14.996 I love this idea that the only reason the legal 0:21:14.996 --> 0:21:17.516 system works is that people don't pay attention to it, 0:21:17.956 --> 0:21:20.716 that when they do pay attention to it, they're shocked 0:21:20.716 --> 0:21:24.236 by its unfairness. That the stability of the entire society 0:21:24.316 --> 0:21:27.156 depends on people not looking too closely at its foundation, 0:21:27.796 --> 0:21:31.156 because when they do, they get seriously pissed off. And 0:21:31.196 --> 0:21:34.276 then the system, you know, our system of law and politics, 0:21:34.316 --> 0:21:37.676 has to address this anger in some way. This anger 0:21:37.756 --> 0:21:41.596 is a political problem that the legal system is really 0:21:41.596 --> 0:21:46.596 not set up to address. And that's when ken Feinberg appears. 0:21:48.036 --> 0:21:51.396 When the anger hits a certain point when people are 0:21:51.476 --> 0:21:54.076 chucking beer cans onto the field and deciding the game 0:21:54.156 --> 0:21:59.476 is rigged. Feinberg descends by parachute, and the arena goes quiet, 0:22:00.596 --> 0:22:04.596 and just about everybody accepts his judgment, and just about 0:22:04.636 --> 0:22:11.356 everybody agrees it's fair. So so what Ken Feinberg really 0:22:11.396 --> 0:22:14.516 is as a political solution, That's exactly what he is. 0:22:14.556 --> 0:22:19.236 He's a political solution. A legal scholar looks at ken 0:22:19.236 --> 0:22:22.036 Feinberg and asks, why do we turn to this one 0:22:22.156 --> 0:22:26.916 guy time and again to dispense justice? And why is 0:22:26.956 --> 0:22:30.356 that justice so obviously different from what our legal system 0:22:30.436 --> 0:22:34.876 might supply. I'm interested in a different question. I look 0:22:34.916 --> 0:22:37.596 at ken Feinberg and ask, how the hell does he 0:22:37.716 --> 0:22:43.316 do it? I mean, how does any citizen of this fractious, unreasonable, entitled, 0:22:43.396 --> 0:22:47.236 moronic country persuaded to come together and agree on anything? 0:22:47.916 --> 0:22:51.076 Do they be asking how you're doing that? I don't 0:22:51.116 --> 0:22:53.796 really think that. Most people who ask me to do this, 0:22:56.436 --> 0:22:59.916 they don't really prole very much as to how it 0:22:59.956 --> 0:23:03.476 gets done. They like the results. Right, the time has 0:23:03.516 --> 0:23:11.076 come to ask him how he does it? So, I 0:23:11.356 --> 0:23:13.996 see you're a talker, But I loved your book, The 0:23:13.996 --> 0:23:17.036 One on Wall Street. I went to visit Ken Feinberg 0:23:17.116 --> 0:23:21.596 at his apartment in the suburbs of Washington, DC. Nice place, 0:23:22.676 --> 0:23:26.316 not a money person's place, not extravagant. His wife diets 0:23:26.356 --> 0:23:29.316 with us on the sofa beside us. They're both in 0:23:29.356 --> 0:23:32.556 their seventies, their kids all grown up and gone. They've 0:23:32.556 --> 0:23:35.236 earned the right to move to some beach. Let the 0:23:35.236 --> 0:23:39.196 world find another referee. But they haven't moved since we 0:23:39.316 --> 0:23:44.476 last spoke. I'm now resolving all of these Catholic priest 0:23:44.556 --> 0:23:48.716 abuse cases in New York and Pennsylvania. We are the 0:23:48.796 --> 0:23:55.116 Codinal Dolan in New York and the Archbishop in Philadelphia 0:23:55.356 --> 0:23:57.716 came and basically said to me, you know, this is 0:23:57.996 --> 0:24:01.436 one situation where the Jews have to bail out the Catholics, 0:24:01.636 --> 0:24:04.436 and we've been resolving all these cases. Just how you 0:24:04.476 --> 0:24:07.796 want to spend your golden years refing the dispute between 0:24:07.836 --> 0:24:11.356 the Catholic Church and however many Americans have been abused 0:24:11.396 --> 0:24:15.476 by its employees. But this is clearly Feinberg's idea. I 0:24:15.516 --> 0:24:17.836 was about to say fun but that's not quite right. 0:24:18.436 --> 0:24:20.956 It's more like his idea of where he needs to be. 0:24:21.796 --> 0:24:25.196 Like Finburg GPS, if at any given moment, you want 0:24:25.236 --> 0:24:27.876 to know where Ken Fineburg is. Just go looking for 0:24:27.916 --> 0:24:31.996 the most upsetting public controversy. You'll find him in the 0:24:31.996 --> 0:24:35.396 middle of it. As the neutral and the church came 0:24:35.436 --> 0:24:40.196 and said, basically, will you meet with individual victims voluntarily 0:24:40.196 --> 0:24:42.116 if they don't want to, they don't have to, and 0:24:42.636 --> 0:24:46.996 we'll pay for it. We'll compensate them for the damage 0:24:47.036 --> 0:24:52.516 we did, horrible damage, I mean penetration, a sodomy rape 0:24:53.116 --> 0:24:57.076 going back forty years or more. And we've resolve virtually 0:24:57.116 --> 0:25:00.756 all of the cases in New York. How many were there, Well, 0:25:01.716 --> 0:25:06.276 we know voluntarily that fifteen hundred people came forward in 0:25:07.196 --> 0:25:11.996 five dioceses in New York. Oh and fourteen hundred and 0:25:12.116 --> 0:25:17.356 ninety seven of the fifteen hundred we resolved. The victims 0:25:17.396 --> 0:25:20.796 don't have to accept Feinberger's judgment, and yet they do. 0:25:21.676 --> 0:25:25.836 But why, I mean, why do these controversies always find 0:25:25.996 --> 0:25:29.356 him or he them? And how is it that he 0:25:29.436 --> 0:25:35.156 always and I mean always gets to a resolution. Well, 0:25:35.196 --> 0:25:40.436 I think that there are a couple of characteristics. Don't 0:25:40.596 --> 0:25:46.276 underestimate the importance of empathy, the perception that you're trying 0:25:46.316 --> 0:25:50.956 to get into that person's shoes and understand the damage, 0:25:51.596 --> 0:25:55.276 and I think the ability to listen. I've learned the 0:25:55.356 --> 0:26:01.636 hard way. Don't try and express too much empathy. It 0:26:01.996 --> 0:26:07.436 is perceived as hollow. You're not in my shoes, mister Feinberg. 0:26:07.956 --> 0:26:13.916 You're a higher gun. You can empathize and express support 0:26:15.716 --> 0:26:18.956 without saying things like I've said in my early years, 0:26:19.116 --> 0:26:22.836 I know how you feel. I said that one to 0:26:22.916 --> 0:26:25.956 one person who lost a son in the World's the 0:26:26.076 --> 0:26:30.356 Pentagon nine eleven attacks. Eighty three year old man buried 0:26:30.356 --> 0:26:33.556 his son and he said, mister Fiber, you're telling me 0:26:33.716 --> 0:26:38.916 you know how I feel. You have no idea how 0:26:39.036 --> 0:26:42.756 I feel, and it sounds pretentious. And I'm just telling you. 0:26:42.756 --> 0:26:46.596 You've got a tough job. But in the future, people 0:26:46.716 --> 0:26:50.156 like you listening to them. They do. It's very odd 0:26:50.156 --> 0:26:53.276 for someone who talks. If you're a talker too, you 0:26:53.556 --> 0:26:57.076 learn right. Yes, so most people are talker, don't listen. 0:26:57.116 --> 0:27:00.396 You learn to listen. Sometimes I think that all people 0:27:00.436 --> 0:27:02.796 who are really good at what they do are like magicians. 0:27:04.156 --> 0:27:07.316 Asking them how they do it is rude. They don't 0:27:07.316 --> 0:27:10.876 really want to tell you. They shouldn't tell you because 0:27:10.876 --> 0:27:14.436 if they tell you, they ruin the trick. But Ken Feinberg, 0:27:14.916 --> 0:27:17.916 he took money away from guys who ran Wall Street banks. 0:27:18.836 --> 0:27:23.676 I don't know how anyone does that. I thought that 0:27:23.796 --> 0:27:28.116 in cutting the pay of the CFO of City Bank, 0:27:29.436 --> 0:27:33.196 I would go to the CFO and say you don't 0:27:33.236 --> 0:27:38.356