Speaker 1: Pushkin. Now, two women who were harlots came to the
Speaker 1: king and stood before him, and one woman said, oh,
Speaker 1: my Lord, this woman and I dwell in the same house,
Speaker 1: and I gave birth while she was in the house.
Speaker 1: Then it happened Old Testament, first King's three sixteen. There
Speaker 1: are these two women, one whose baby has died, the
Speaker 1: other whose baby is still alive. Each claims the living
Speaker 1: baby as her own. They go to the new King
Speaker 1: Solomon and ask him to sort it all out. In
Speaker 1: the night, this woman's child died because she lay upon it.
Speaker 1: Wherefore she removed my son from beside me while I slipped,
Speaker 1: and they'd had dead child wild against marbles Chila. This
Speaker 1: is from the somewhat less than classic film Solomon and Sheba.
Speaker 1: The women are shushed by King Solomon played by Yule
Speaker 1: Brenner in whatever they use for spray tan in nineteen
Speaker 1: fifty nine. The living child is mine, the dead is yours.
Speaker 1: The dead is yours, the living mine. Bring the infant forward.
Speaker 1: A guard puts the baby down, and then yule Brenner
Speaker 1: tells him to draw his sword, divide the child into
Speaker 1: two parts. Give half to the one woman, half to
Speaker 1: the other. Many close ups of people looking horrified. Here,
Speaker 1: Oh no, if it must be give the child to her,
Speaker 1: that it may not be slay divided, it should be
Speaker 1: neither has nor mine as non fiction is not totally believable.
Speaker 1: I mean, why would either woman want to see the
Speaker 1: baby cut in half? Even the liar wants a live baby,
Speaker 1: not a dead one. But Solomon's such a good character.
Speaker 1: No one cares make your son mother, He's surely yours
Speaker 1: would rather have surrendered him to another than to seem harmed. Now,
Speaker 1: at last, I have seen a judgment of Solomon, and
Speaker 1: your wisdom amazes me. That's Sheba. The ladies do love
Speaker 1: the wisdom, even if it isn't all that wise. Solomon's
Speaker 1: trick only works if the baby thief is suddenly happy
Speaker 1: to see it killed and stupid enough to show it. Otherwise,
Speaker 1: he's got nothing worse than nothing to save face. He'd
Speaker 1: probably need to go through with it and cut a
Speaker 1: totally innocent baby in half and then wears it. Leave
Speaker 1: him as the guy who began his reign as the
Speaker 1: king of Israel by cutting babies in half. Still, if
Speaker 1: referees have an origin story, this is it, and it's
Speaker 1: got two ideas buried inside. And all Israel heard of
Speaker 1: the judgment which the king had rendered, and they feared
Speaker 1: the king, for they saw that the wisdom of God
Speaker 1: was in him to administer justice. That's the last line
Speaker 1: of the story and the first idea. The job of
Speaker 1: the referee is so hard to do that doing it
Speaker 1: really well is a sign of divine inspiration. Another idea
Speaker 1: is sort of taken for granted right from the start,
Speaker 1: that the job needs to be done at all, that
Speaker 1: when two squabbling human beings go looking for justice, they
Speaker 1: should turn to some other human being to act as
Speaker 1: a neutral third party, as if human beings weren't the
Speaker 1: problem in the first place. But people are just no
Speaker 1: good at resolving their own conflicts. Any parent of more
Speaker 1: than one child knows this, so does every teacher, a lawyer,
Speaker 1: and cop. We just take it for granted that we
Speaker 1: need legal systems, both formal and informal, and we just
Speaker 1: assume that some totally innocent third party will want to
Speaker 1: help us to resolve even our most petty disputes. We
Speaker 1: never ask why should someone with no real interest in
Speaker 1: our conflicts be better at refereeing them than we are.
Speaker 1: And we also don't ask would actually make someone good
Speaker 1: at this job no one wants. I'm Michael Lewis and
Speaker 1: This is Against the Rules, a show about the attack
Speaker 1: on the authority of referees in American life and what
Speaker 1: that's doing to our idea of fairness. A few months ago,
Speaker 1: I was at a bar in Washington, d C. With
Speaker 1: a friend of mine who's a sports writer, Rob Nyer.
Speaker 1: He's the opposite of what you think of when you
Speaker 1: think of sports writer. Quiet, well mannered, almost shy. He's
Speaker 1: a fan, but he's never fanatical. He's like his writing, cool, analytical, detached.
Speaker 1: But then at the bar, his cell phone rang. He
Speaker 1: looked at the number, got all agitated. All I hate
Speaker 1: my life. I hate these people who keep calling me,
Speaker 1: but I have to take this one. I'd never seen
Speaker 1: him like this. He spent twenty minutes pacing around outside
Speaker 1: on his phone, came back a total wreck, angry, distracted,
Speaker 1: incapable of pleasure. It was this new job he'd taken,
Speaker 1: he said, As commissioner of an amateur baseball league, I
Speaker 1: would travel around, visit every team eleven ballparks, which is
Speaker 1: for most baseball fans, that's sort of a dream come true.
Speaker 1: Why would I not agree to all of that. It
Speaker 1: was known as the West Coast League. The teams were
Speaker 1: all owned by rich guys. They had persuaded Rob to
Speaker 1: become the league's public face, it's symbolic leader. These rich
Speaker 1: guys love the game. Rob loved the game. What could
Speaker 1: go wrong? Well, it turned out that these owners argued
Speaker 1: amongst themselves a lot. Their coaches and players fought with
Speaker 1: each other too, and everyone fought with the umpires. They
Speaker 1: expected Rob, as commissioner, to get in the middle of
Speaker 1: all these fights and referee them. But the rich guys
Speaker 1: hated to be refereed unless the call went their way.
Speaker 1: That's what the phone call had been about. In the
Speaker 1: Washington Bar, yet another dispute. The umpire reported that the
Speaker 1: head coach poked him with his finger, and this was
Speaker 1: the second time that this head coach had been suspended.
Speaker 1: The first time he had sprayed, whether inadvertently or not,
Speaker 1: the rules don't make a distinction. Sprayed with saliva an umpire,
Speaker 1: so he was suspended at that time, and then just
Speaker 1: a couple of weeks later reported the according to the
Speaker 1: umpire's report, poked the umpire. Unfortunately, the video was inconclusive,
Speaker 1: so I felt like I had to take the umpire's
Speaker 1: report at face value. Rob suspended the head coach again,
Speaker 1: thus pissing off the owner, who blamed the whole thing
Speaker 1: on the umpire, with whom he now thought Rob was
Speaker 1: in some sort of secret alliance. For his part, Rob
Speaker 1: couldn't see what he'd done to deserve this. No one
Speaker 1: asked if he had some special talent for refing other
Speaker 1: people's disputes. They just sort of assumed he'd figure it out,
Speaker 1: which he was trying to do. You have to as
Speaker 1: a league, you you have to have an incredibly compelling
Speaker 1: reason to dispute the report or the integrity of an umpire.
Speaker 1: Otherwise you just lose control. Anarchy. That night in the bar,
Speaker 1: that was when Rob had realized that he was losing control,
Speaker 1: that in this amateur baseball league it was anarchy. I
Speaker 1: had just covered two days after the fact that the
Speaker 1: head coach actually did not serve his suspension. So yes,
Speaker 1: I mean I was apoplectic because you what am I
Speaker 1: supposed to do? Now? So what did you do to him?
Speaker 1: I suspended the owner for three games and levied a
Speaker 1: relatively small fine. And how did he respond to that? Not? Well, no,
Speaker 1: not well at all. The owner had screamed at him,
Speaker 1: accused him of somehow being on the take from another
Speaker 1: team's owner. But Rob was just doing his job enforcing
Speaker 1: the rules, which sounds simple, right, I mean, Solomon did it.
Speaker 1: But it turns out there's a great deal of ambiguity
Speaker 1: in the rules. For example, there is a rule against
Speaker 1: prolonging an argument after an injection, but there's no definition
Speaker 1: of prolonging. And now I have to go read all
Speaker 1: these things and watch video and try to make some
Speaker 1: sort of reasonable determination, and almost invariably neither side is
Speaker 1: happy ultimately with my decision. What kind of person would
Speaker 1: enjoy being in the middle, Well, my it's a good question.
Speaker 1: I keep getting this sneaking suspicion that there are at
Speaker 1: least a few people in the league who actually enjoy conflict,
Speaker 1: who thrive on it. I don't know if that's true.
Speaker 1: Maybe they can't help themselves, and maybe the conflict makes
Speaker 1: them as miserable as it makes me. I don't know,
Speaker 1: And I've actually tried to reason with people, these people
Speaker 1: who seem to enjoy it, because there's a part of
Speaker 1: me the things they can't be having fun yelling at you,
Speaker 1: can they of course they can. People love to scream
Speaker 1: it refs. They do it all the time. And the
Speaker 1: same people who love to scream it refs also just
Speaker 1: sort of a zoom. The ref's job is to sit
Speaker 1: there and take it. I told Rob all this, but
Speaker 1: it didn't seem to make him any happier. So I
Speaker 1: asked him was there anything he liked about his new job? Oh? No, no,
Speaker 1: why not? How at the end of the day, how
Speaker 1: do you feel good knowing that someone is upset with
Speaker 1: you and might be questioning your integrity. Rob had clearly
Speaker 1: never been a ref, and he was learning that he
Speaker 1: wasn't cut out for it. I probably couldn't be an
Speaker 1: umpire because my first reaction would probably be to start fighting.
Speaker 1: So you'd just be out there. You'd be out there
Speaker 1: throwing sledgehammer punches at the people who came up to
Speaker 1: argue with you. Well, I wouldn't be good at throwing punches,
Speaker 1: but yes, I would be throwing punches. The first time
Speaker 1: someone got inchest from my face and started screaming profanities
Speaker 1: at me, I would lose it. I mean, I have
Speaker 1: road rage issues, Not that I've ever done anything, but
Speaker 1: but I have that impulse so they need to find
Speaker 1: a different kind of person to do this job. Well,
Speaker 1: I don't want to fire myself, but I would recommend
Speaker 1: someone else. Yeah. Sure, I've watched Rob work for years
Speaker 1: on a book and overcome all sorts of obstacles. But
Speaker 1: just a few months into his career as a referee,
Speaker 1: he's already looking to quit hand the job to someone else.
Speaker 1: But to whom I mean that generally, not just in baseball,
Speaker 1: In all the places where disputes need resolving, the job
Speaker 1: obviously needs doing, maybe more than ever, But what sort
Speaker 1: of person can do it? Back in nineteen seventy nine,
Speaker 1: a huge number of Vietnam vets filed a lawsuit against
Speaker 1: Monsanto and Dow Chemical and other companies that had manufactured
Speaker 1: a herbicide called Agent Orange. Millions of gallons of the
Speaker 1: stuff had been dumped under the Vietnamese jungles to kill
Speaker 1: the plant cover used by the Vietcong. Thousands of vets
Speaker 1: exposed to agent Orange believed it was responsible for their
Speaker 1: various health problems. They didn't have much evidence, but the
Speaker 1: companies wanted to settle just to end the whole thing.
Speaker 1: That effort kicked around the courts for five years, but
Speaker 1: no one could find a solution that would satisfy everyone.
Speaker 1: Then the judge decided to see if he could find
Speaker 1: a solution outside the American legal system, to appoint an
Speaker 1: outside mediator, special master the courts called it. And I
Speaker 1: just got a telephone call out of the clear blue
Speaker 1: from a federal judge in Brooklyn, New York. Did he
Speaker 1: explain to you why he thought you'd be good at
Speaker 1: that job? Yes, he said, You've got the personality for it.
Speaker 1: The young lawyer's name was and Is ken Feinberg. A
Speaker 1: case that went unresolved for half a decade, he settled
Speaker 1: in six weeks. A legend was born. I changed my life.
Speaker 1: It changed my professional life. You see. Once I got
Speaker 1: AIGs in Orange resolved and it was on the front
Speaker 1: page of every newspaper in the United States, I started
Speaker 1: getting a flood of calls. Was there any any experience
Speaker 1: in your life before this that was like this where
Speaker 1: you could say, all, I've been in this kind of
Speaker 1: situation before. No. I had been in high school and college.
Speaker 1: I had been an actor on the stage. I had
Speaker 1: thought that I might end up on Broadway. When I
Speaker 1: went to law school in nineteen seventy there was no
Speaker 1: course in mediation or arbitration. There's nothing like that. But
Speaker 1: there was this role that needed to be played in
Speaker 1: American life. It just hadn't been written yet. Feinberg created
Speaker 1: it by sheer force of personality. He wound up running
Speaker 1: the nine to eleven Victims Compensation Fund and met personally
Speaker 1: with the families of the three thousand people who were killed.
Speaker 1: He ran the fund to compensate victims of the BP
Speaker 1: oil spill. After the two thousand and eight financial crisis,
Speaker 1: the United States Congress gave Ken Feinberg sole authority to
Speaker 1: determine the pay of the CEOs of the banks that
Speaker 1: had been bailed out by government money. And that's just
Speaker 1: the start. The Paul snight Club in Orlando, Florida, when
Speaker 1: the terrorists attack, they raised and asked me to distribute
Speaker 1: thirty million. The harvest, Las Vegas shootings from the Mandalay Hotel.
Speaker 1: I killed fifty nine people. They raised thirty million. Distribute
Speaker 1: that money Sandy Hook. They asked me to go up
Speaker 1: to Sandy Hook and decide how should we distribute the money.
Speaker 1: The Pittsburgh Tree of Life Synagogue shootings the next day,
Speaker 1: the Federation of Jewish Philanthropies in Pittsburgh, call, how do
Speaker 1: we distribute this money? It is astounding. One hundred thousand
Speaker 1: people after those Boston Marathon bombings sent in money unsolicited,
Speaker 1: you know, and Mayhem Nino and Governor Patrick said, ken,
Speaker 1: you're from Massachusetts, you grew up here. We want you
Speaker 1: to design and administer a compensation program. Four dead, two
Speaker 1: hundred and forty runners are observers at the finish line, injured,
Speaker 1: sixteen single amputees, two double amputees. Sixty one million distribute
Speaker 1: the money. The mass shooting in a movie theater in Aurora, Colorado.
Speaker 1: The thousands of disputes after Hurricane Katrina between insurance companies
Speaker 1: and homeowners who are covered for wind but not flood damage.
Speaker 1: And they retained me to set up a mediation program.
Speaker 1: Any whole owner wants to participate, voluntarily, Come on in.
Speaker 1: Feinberg will be the neutral. The neutral, This magical extra
Speaker 1: legal character, this gifted referee who drops into a situation
Speaker 1: where people are traumatized, a situation that also might easily
Speaker 1: become ugly and public, and he resolves it quietly, privately,
Speaker 1: and hardly anyone says anything about it, or even knows
Speaker 1: who he is, or just how much power he's wielded.
Speaker 1: That's why victims Advocate John Fia wants everyone who is
Speaker 1: eligible to sign up. We have lost forty two people
Speaker 1: this year alone to nine eleven lady chancers. This will
Speaker 1: provide money to victims families. In all of these programs,
Speaker 1: you have some discretion, but you have to exercise it wisely,
Speaker 1: because the public and the victims are all circling. How
Speaker 1: you strike the balance between paying people enough for their
Speaker 1: loss example Pete nine to eleven and not paying them
Speaker 1: too much. So you couldn't so in dolling out the money,
Speaker 1: you couldn't actually reflect just pure expected earnings. You couldn't.
Speaker 1: You couldn't. The law wisely said, and finebergs shall consider
Speaker 1: expected earnings. And then there's another clause that says, and
Speaker 1: he will see to it that justice is done well.
Speaker 1: That gave me the opening to bring down the top
Speaker 1: and bring up the bottom so that the gap between
Speaker 1: the stockbroker who died and the bus boy who died
Speaker 1: was not to Why what was the difference, the monetary
Speaker 1: difference between what would have happened if you just had
Speaker 1: a raw, cold calculation of lost earnings and what you
Speaker 1: actually did. Oh I think some people I don't know
Speaker 1: how many, but I think some widows or widowers, I
Speaker 1: should say, would have maybe got thirty five million dollars
Speaker 1: in tax to pay it, money which I reduced to
Speaker 1: no more than six and would about on the other end.
Speaker 1: And on the other end, some people might have got
Speaker 1: two hundred thousand dollars, and I increased the bottom to
Speaker 1: up over a million dollars. He turned thirty five million
Speaker 1: dollars into six for the family of a bond trader,
Speaker 1: and two hundred thousand dollars into a million for the
Speaker 1: family of a bus boy, all by himself for free.
Speaker 1: Feinberg refused to be paid for his work settling the
Speaker 1: nine to eleven victims Compensation Fund. He doesn't take money
Speaker 1: after mass shootings either. He just feels it's his duty
Speaker 1: to do the job. And hardly anybody complains about the results.
Speaker 1: Of course, plaintiff lawyers don't like it, but about the
Speaker 1: only principled objection to Ken Feinberg comes from legal scholars
Speaker 1: who worry that his success makes a mockery of the
Speaker 1: legal system. Like this guy. I'm Eric Posner, and I'm
Speaker 1: a professor of law at the University of Chicago. In
Speaker 1: his writing, Posners raise questions about the role that Ken
Speaker 1: Fineberg plays. So the legal system doesn't always reflect people's
Speaker 1: ordinary moral intuitions about how dispute should be solved. To
Speaker 1: give me an example, it's like a concrete example or
Speaker 1: two of outcomes the legal system might generate that would
Speaker 1: violate common sense notions of fairness. So suppose you're driving
Speaker 1: your automobile and you run over a wealthy person and
Speaker 1: kill him. His family sues, you may have to pay
Speaker 1: damages equal to his lost income, which could be millions
Speaker 1: of dollars. And then someone else runs over a poor
Speaker 1: person and the poor person's family sues, and the damages
Speaker 1: that are awarded might just be a few hundred thousand
Speaker 1: dollars or less, just like what might have happened after
Speaker 1: nine to eleven if Fineberg hadn't been there. Because of
Speaker 1: this legal rule that compensates victims in their families based
Speaker 1: on their lost income, that values people's lives by how
Speaker 1: much money they make, and it looks quite unfair because
Speaker 1: it's as if the law is saying that the wealthy
Speaker 1: person's life is worth a lot and the poor person's
Speaker 1: life is worth not that much. And that's very much
Speaker 1: inconsistent with our moral intuitions about equality. This disconnect between
Speaker 1: the common sense notion of what's fair and with the
Speaker 1: legal system produces is allowed to sort of chug along
Speaker 1: until there's a big spotlight thrown on it, like there
Speaker 1: was in nine to eleven. Right, So the legal system
Speaker 1: can chug along as long as you people aren't paying
Speaker 1: too much attention to it. But when there is some
Speaker 1: kind of massive public spotlight on the particular conflict that
Speaker 1: the law is supposed to deal with, people see how
Speaker 1: it operates out of context, and they can get very angry.
Speaker 1: I love this idea that the only reason the legal
Speaker 1: system works is that people don't pay attention to it,
Speaker 1: that when they do pay attention to it, they're shocked
Speaker 1: by its unfairness. That the stability of the entire society
Speaker 1: depends on people not looking too closely at its foundation,
Speaker 1: because when they do, they get seriously pissed off. And
Speaker 1: then the system, you know, our system of law and politics,
Speaker 1: has to address this anger in some way. This anger
Speaker 1: is a political problem that the legal system is really
Speaker 1: not set up to address. And that's when ken Feinberg appears.
Speaker 1: When the anger hits a certain point when people are
Speaker 1: chucking beer cans onto the field and deciding the game
Speaker 1: is rigged. Feinberg descends by parachute, and the arena goes quiet,
Speaker 1: and just about everybody accepts his judgment, and just about
Speaker 1: everybody agrees it's fair. So so what Ken Feinberg really
Speaker 1: is as a political solution, That's exactly what he is.
Speaker 1: He's a political solution. A legal scholar looks at ken
Speaker 1: Feinberg and asks, why do we turn to this one
Speaker 1: guy time and again to dispense justice? And why is
Speaker 1: that justice so obviously different from what our legal system
Speaker 1: might supply. I'm interested in a different question. I look
Speaker 1: at ken Feinberg and ask, how the hell does he
Speaker 1: do it? I mean, how does any citizen of this fractious, unreasonable, entitled,
Speaker 1: moronic country persuaded to come together and agree on anything?
Speaker 1: Do they be asking how you're doing that? I don't
Speaker 1: really think that. Most people who ask me to do this,
Speaker 1: they don't really prole very much as to how it
Speaker 1: gets done. They like the results. Right, the time has
Speaker 1: come to ask him how he does it? So, I
Speaker 1: see you're a talker, But I loved your book, The
Speaker 1: One on Wall Street. I went to visit Ken Feinberg
Speaker 1: at his apartment in the suburbs of Washington, DC. Nice place,
Speaker 1: not a money person's place, not extravagant. His wife diets
Speaker 1: with us on the sofa beside us. They're both in
Speaker 1: their seventies, their kids all grown up and gone. They've
Speaker 1: earned the right to move to some beach. Let the
Speaker 1: world find another referee. But they haven't moved since we
Speaker 1: last spoke. I'm now resolving all of these Catholic priest
Speaker 1: abuse cases in New York and Pennsylvania. We are the
Speaker 1: Codinal Dolan in New York and the Archbishop in Philadelphia
Speaker 1: came and basically said to me, you know, this is
Speaker 1: one situation where the Jews have to bail out the Catholics,
Speaker 1: and we've been resolving all these cases. Just how you
Speaker 1: want to spend your golden years refing the dispute between
Speaker 1: the Catholic Church and however many Americans have been abused
Speaker 1: by its employees. But this is clearly Feinberg's idea. I
Speaker 1: was about to say fun but that's not quite right.
Speaker 1: It's more like his idea of where he needs to be.
Speaker 1: Like Finburg GPS, if at any given moment, you want
Speaker 1: to know where Ken Fineburg is. Just go looking for
Speaker 1: the most upsetting public controversy. You'll find him in the
Speaker 1: middle of it. As the neutral and the church came
Speaker 1: and said, basically, will you meet with individual victims voluntarily
Speaker 1: if they don't want to, they don't have to, and
Speaker 1: we'll pay for it. We'll compensate them for the damage
Speaker 1: we did, horrible damage, I mean penetration, a sodomy rape
Speaker 1: going back forty years or more. And we've resolve virtually
Speaker 1: all of the cases in New York. How many were there, Well,
Speaker 1: we know voluntarily that fifteen hundred people came forward in
Speaker 1: five dioceses in New York. Oh and fourteen hundred and
Speaker 1: ninety seven of the fifteen hundred we resolved. The victims
Speaker 1: don't have to accept Feinberger's judgment, and yet they do.
Speaker 1: But why, I mean, why do these controversies always find
Speaker 1: him or he them? And how is it that he
Speaker 1: always and I mean always gets to a resolution. Well,
Speaker 1: I think that there are a couple of characteristics. Don't
Speaker 1: underestimate the importance of empathy, the perception that you're trying
Speaker 1: to get into that person's shoes and understand the damage,
Speaker 1: and I think the ability to listen. I've learned the
Speaker 1: hard way. Don't try and express too much empathy. It
Speaker 1: is perceived as hollow. You're not in my shoes, mister Feinberg.
Speaker 1: You're a higher gun. You can empathize and express support
Speaker 1: without saying things like I've said in my early years,
Speaker 1: I know how you feel. I said that one to
Speaker 1: one person who lost a son in the World's the
Speaker 1: Pentagon nine eleven attacks. Eighty three year old man buried
Speaker 1: his son and he said, mister Fiber, you're telling me
Speaker 1: you know how I feel. You have no idea how
Speaker 1: I feel, and it sounds pretentious. And I'm just telling you.
Speaker 1: You've got a tough job. But in the future, people
Speaker 1: like you listening to them. They do. It's very odd
Speaker 1: for someone who talks. If you're a talker too, you
Speaker 1: learn right. Yes, so most people are talker, don't listen.
Speaker 1: You learn to listen. Sometimes I think that all people
Speaker 1: who are really good at what they do are like magicians.
Speaker 1: Asking them how they do it is rude. They don't
Speaker 1: really want to tell you. They shouldn't tell you because
Speaker 1: if they tell you, they ruin the trick. But Ken Feinberg,
Speaker 1: he took money away from guys who ran Wall Street banks.
Speaker 1: I don't know how anyone does that. I thought that
Speaker 1: in cutting the pay of the CFO of City Bank,
Speaker 1: I would go to the CFO and say you don't
Speaker 1: need three cars, and you don't need a home on
Speaker 1: Lone Island in the summer, and therefore I'm going to
Speaker 1: cut your pay by eight and you get pushedback. I
Speaker 1: figured about who you to tell me what I need?
Speaker 1: You get victimology. I love these Wall Street victims. You
Speaker 1: get the CFOs saying you're cutting me by eighty percent.
Speaker 1: You have made a determination of my self worth. When
Speaker 1: I look in the mirror in the morning, I'm not
Speaker 1: thinking about two cars. If you cut my pay, you
Speaker 1: are telling me I'm not worth what I was getting.
Speaker 1: They said this kind of thing. Oh my goodness, this
Speaker 1: was a curveball. This was a curveball. You see. It's
Speaker 1: not about material gain. If you dare come to me
Speaker 1: and say I'm only worth twenty percent of what I
Speaker 1: was worth last year, you have made a determination that
Speaker 1: my life is meaningless, that I'm only worth a fraction
Speaker 1: of what I thought i'm worth. What's your response to this.
Speaker 1: I'm not a rabbi or a priest, you kind of
Speaker 1: are No, Yeah, Feinberg doesn't want to go there. Part
Speaker 1: of his job, as he sees it, is to resist
Speaker 1: the temptation to make anything personal, to expect some connection
Speaker 1: with the people on the other end of his work.
Speaker 1: I put it this way, Never take on one of
Speaker 1: these assignments and expect thank you, gratitude, appreciation. It never
Speaker 1: ever happens. Never. The most STU can hope for is resignation.
Speaker 1: And why is that, Well, because you know, if you're
Speaker 1: worried about stuff like that, you're going to split the baby.
Speaker 1: You can't worry about how you'll be perceived post mediation,
Speaker 1: just like a referee in a basketball game can't be
Speaker 1: worried about how the a team or a player will
Speaker 1: feel about that referee based on a call that he
Speaker 1: made or she made. You just have to do your
Speaker 1: job and have enough sense of self. He's been doing
Speaker 1: this work for forty years now. He's interacted with countless
Speaker 1: victims and perpetrators of tragedies. It feels incredib personal, but
Speaker 1: no one stays in touch with Ken Feinberg. One nine
Speaker 1: eleven victims sent me flowers on the nine to eleven
Speaker 1: date for about fifteen years one. And I think it's
Speaker 1: very important to deliberately push people away and say, this
Speaker 1: is a horrible chapter. Move on as best you can.
Speaker 1: It's not easy, and I'm not minimizing it, but move
Speaker 1: on as best you can. Don't look back to this
Speaker 1: program or to me or the money. Just move on.
Speaker 1: And so you push them away. Oh, absolutely, deliberately push
Speaker 1: them away. I gotta say I don't feel pushed away,
Speaker 1: at least not sitting on Feinberg's couch. But I notice
Speaker 1: he's got me on the edge of my seat, wondering
Speaker 1: when he's going to erupt and fill the air with
Speaker 1: exclamation points. He's obviously got several traits that make him
Speaker 1: good at what he does. I can think of at
Speaker 1: least four, none of which he mentions until I pester
Speaker 1: him a bit. This is our second interview, by the way,
Speaker 1: so I'm actually repasting him. And you told me it
Speaker 1: was a throwaway line at the end of our interview.
Speaker 1: We did that. You actually hit refereed. Uh. You umpired
Speaker 1: baseball games in the eighth grade maybe, and refereed basketball
Speaker 1: games in high school. Uh. And I couldn't believe you
Speaker 1: buried that that's you buried the lead, as they say
Speaker 1: in the newsroom, when you were a kid, How did
Speaker 1: you discover this interest in being in that role? He
Speaker 1: likes being in charge. That's Ken's wife, d D. She
Speaker 1: knows the first quality ego. He likes being in charge. Yeah,
Speaker 1: but he But but you've got to be shrewd about
Speaker 1: how you're in charge because otherwise people take away the
Speaker 1: privilege es. No, they aren't exclusive qualities, but you've got
Speaker 1: If you don't pick the teams fairly, you won't be
Speaker 1: allowed to pick the teams next time. Second quality political sense, shrewdness,
Speaker 1: a kind of esp about disputes, a nose for those
Speaker 1: that can be refereed and those that cannot. For example,
Speaker 1: somebody says, you know, why don't you get the Israelis
Speaker 1: and the Arabs to sit down and you can get
Speaker 1: them t yes in the Middle East? And I would
Speaker 1: say that, I say to people, that's not true. I
Speaker 1: wouldn't take on that assignment. You cannot get to us
Speaker 1: and that assignment because for one thing, you can't get
Speaker 1: the right people at the table to get to us.
Speaker 1: You sit down, as I read the newspapers, you sit
Speaker 1: down with a group of Arabs and say, well, they
Speaker 1: don't get to yes with Israel, and the Arabs may
Speaker 1: say yes, they can't deliver their own group people. So
Speaker 1: I mean, that's a typical assignment where I would say, no,
Speaker 1: thank you, Ken, why don't you mediate resolution of congressional polarization,
Speaker 1: let's get inner room, and why don't you help them
Speaker 1: get to yes? Possible? It would want me, Actually, they
Speaker 1: would want him. He just wouldn't want them because in
Speaker 1: those situations he'd lose something more than his time, he'd
Speaker 1: lose a sense of who he is. That's the third quality.
Speaker 1: Fineberg has a kind of total immersion in the role
Speaker 1: of Ken Feinberg. How many kids do you have? Three?
Speaker 1: And how they're How old are they today? Forty one,
Speaker 1: thirty nine, and thirty six? So when they were a
Speaker 1: little and they were growing up, what role did he
Speaker 1: play in disputes in the household? You got it, You
Speaker 1: nailed it right on the head. I was I was
Speaker 1: the mom who stayed at home with kids, and he
Speaker 1: was the one who just walked in the house at
Speaker 1: the end of the day, and I had him settled disputes.
Speaker 1: We'd sit at the dinner table and we would hold court.
Speaker 1: Was he good? Yeah, he was good. So you know
Speaker 1: what's interesting this is I think that I shy from
Speaker 1: conflict because I have like two modes. It's either we're
Speaker 1: in a fist fight or we're just getting along. I
Speaker 1: don't have them. I'm very bad at the middle ground.
Speaker 1: My wife's army about this all the time, right, And
Speaker 1: so it's it's I don't like people shouting at me.
Speaker 1: I don't like people upset with me. I respond very
Speaker 1: badly to it. So when I'm put in the middle
Speaker 1: of a dispute, I don't usually respond that well to it.
Speaker 1: I have trouble remaining neutral and keeping myself out of it.
Speaker 1: And it sounds like you just don't sound like you
Speaker 1: really don't. You know, when I try to draw Ken
Speaker 1: Feinberg out about himself, he's either already got a story
Speaker 1: at hand, or he acts like he hasn't heard the question.
Speaker 1: So we're lucky as wife's here. On the flip side,
Speaker 1: we've been married forty three years. We've never had a fight.
Speaker 1: I've had a lot of arguments, but we have never
Speaker 1: had one. But he doesn't engage. You've never had a
Speaker 1: fight away, but there won't be confrontation it's a lot
Speaker 1: of self control at his partner. There can't be many
Speaker 1: married couples in America who've been married more than a
Speaker 1: few years. I'm arguing, I'm getting agitated and raising my voice,
Speaker 1: and you know, I just can't and he won't give
Speaker 1: you anything back. To enter into a dispute as their participant,
Speaker 1: even with his family, would be a violation of his
Speaker 1: inner nature or at least some pact he's made with
Speaker 1: himself to stay removed apart the neutral. A character who's
Speaker 1: maybe just a little bit feared. That's the fourth quality.
Speaker 1: Fineberg has a willingness to intimidate, not with force, but
Speaker 1: with force of character. And all Israel heard of the
Speaker 1: judgment which the king had rendered, and they feared the king,
Speaker 1: for they saw that the wisdom of God was in
Speaker 1: him to administer justice. Okay, so it was my idea
Speaker 1: to have Ken Feinberg read the Bible. But it's a
Speaker 1: funny choice of words. They feared the king not because
Speaker 1: he threatened them, but because of what his disapproval said
Speaker 1: about them, because he's righteous righteousness. It's not really something
Speaker 1: you can learn if you're looking to hire someone to
Speaker 1: be a mediator. What qualities do you look for I mean,
Speaker 1: I take a minority view. I think I believe that
Speaker 1: mediators are born, not made. I don't think you can
Speaker 1: train somebody to be an effective mediator. They either have
Speaker 1: the talent and the personality or they don't. Either the
Speaker 1: wisdom of God is in them or it isn't. So
Speaker 1: we're doing a podcast on referees and people mediators and
Speaker 1: people who kind of resolve conflicts. And so we were
Speaker 1: we were ye for recess to talk to the fifth
Speaker 1: grades because they're the ones they were, you know in battle.
Speaker 1: Were you, I assume if you're sixth rade this year?
Speaker 1: But did you? Did you? Were you the kind of
Speaker 1: person who got involved in other people's conflicts last year?
Speaker 1: I mean, it depends on what we were doing. I
Speaker 1: would often solve the conflicts, is how I was playing,
Speaker 1: because like that's just what I like to do. But
Speaker 1: you know, so it depends if I'm yeah, I do
Speaker 1: like to do it, but it depends if I am
Speaker 1: playing the sport, like if I'm playing, if I'm not
Speaker 1: playing all just like today out of it just because
Speaker 1: like I don't know why. So what do you like
Speaker 1: about the peace process and getting involved in two people
Speaker 1: who are violating it. Um. I mean, I guess it's
Speaker 1: just um, it's just um. I just feel proud because
Speaker 1: then it's like seeing their faces they're like, okay, okay, yeah,
Speaker 1: you know you actually it actually works. Yeah, it works sometimes.
Speaker 1: I'm Michael Lewis. Thanks for listening to Against the Rules.
Speaker 1: Against the Rules is brought to you by Pushkin Industries.
Speaker 1: The show is produced by Audrey Dilling and Kathin and Girardo,
Speaker 1: with research assistance from Zoe, Oliver Gray and Beth Johnson.
Speaker 1: Our editor is Julia Barton. Mia Lobelle is our executive producer.
Speaker 1: Our theme was composed by Nick Brittel, with additional scoring
Speaker 1: by Seth Samuel, mastering by Jason Gambrel. Our show was
Speaker 1: recorded by Tofa Ruth at Northgate Studios in Berkeley. Special
Speaker 1: thanks to our founders, Jacob Weisberg and Malcolm Gladwell.