After a national tragedy such as 9/11, the Boston Marathon bombing, or the BP oil spill, victims and their families are left to seek compensation through a process most people know little about. For decades, when a president, Congress, a court, or a company decided to set up a special fund, the call went to one lawyer.
In this TalksOnLaw interview, Joel Cohen sits down with Kenneth Feinberg, former Special Master of the September 11th Victim Compensation Fund and administrator of compensation programs for Agent Orange, the Deepwater Horizon oil spill, GM's defective ignition switches, the Boston Marathon bombing, the Pulse nightclub shooting, and more. He explains how these funds are built and who qualifies. He also takes on the hardest question in the field: how to put a dollar value on a life.
How a Compensation Fund Comes to Be
Feinberg's path started in the 1980s, when Judge Jack Weinstein in Brooklyn asked him to design and administer the settlement program for Vietnam veterans exposed to Agent Orange. Airline crashes, asbestos, and pharmaceutical cases followed. Within days of the September 11 attacks, Congress created a fund paid for entirely by taxpayers, not by the airlines, Boeing, the insurers, or the World Trade Center, and Attorney General John Ashcroft asked Feinberg to run it. Feinberg calls it a one-time national response to an unprecedented tragedy, and a way of showing the world that "we take care of our own."
The 9/11 Fund: A No-Fault Bargain
The statute offered a trade. Anyone who lost a loved one, or who was physically injured, at the towers, the Pentagon, or on the planes could give up the right to sue domestic defendants and enter a no-fault program instead. Claimants did not have to prove anyone was at fault, only that the attack caused the death or injury. They would then be paid as if they had gone to court and won.
Who Gets the Money
Where a victim left a will, the fund followed it. Most victims were young and had none, so the fund applied each state's intestacy law. That produced painful cases: a fiancé whose wedding was planned for September 12, siblings who asked Feinberg to cut out an estranged brother, and parents at odds with partners. Feinberg worked out all but 18 disputes and sent those to probate court. Years later, the Pulse nightclub fund in Orlando raised similar conflicts between biological families and same-sex partners, and most of those were resolved as well.
Why Almost Everyone Opts In
Participation is voluntary, yet 97 percent of eligible 9/11 families joined, as did 92 percent of those who lost income after the oil spill and about 95 percent of eligible GM claimants. The appeal is speed, certainty, and no legal fees. The few who stay out usually want a public trial, deterrence, and answers about what went wrong. Feinberg takes those goals seriously. He points out that 94 families did litigate 9/11 claims, and that a holdout who wins more may wait five years and pay a quarter of the recovery to a lawyer.
Funds, Class Actions, and the Problem of Aggregation
Feinberg supports class actions as a way to resolve many claims at once. But he notes that a closely divided Supreme Court has made it harder to certify classes in tort cases, on the ground that the injured are too different from one another. Funds like 9/11, BP, and GM partly fill that gap. His warning is that if mass claims cannot be combined somehow, whether through a fund, Rule 23, multidistrict litigation, or bankruptcy, "justice delayed is justice denied."
Gifts Versus Alternatives to the Courtroom
Charitable funds such as those after the Boston Marathon bombing, Virginia Tech, and Pulse work differently. The money is a gift, no one gives up any rights, and so awards can be uniform. In Boston, Feinberg explains, every death was treated the same, whatever the victim's age or income, and injury awards turned only on the length of the hospital stay, confirmed by a letter from the hospital. The figures he gives from memory are close to what the fund paid in the event: about $2.2 million for each death, roughly $950,000 for the longest hospital stays, and $8,000 for outpatient treatment. A fund that replaces a lawsuit cannot be so simple. To persuade people to sign a release, it has to pay roughly what a court would.
Drawing the Line on Causation
Every program has to decide how far its causal reach extends. The 9/11 statute covered physical injuries in the "immediate vicinity" of the attacks. Feinberg's regulations defined that as the area bounded by West Street, South Ferry, lower Broadway, and Canal Street. That excluded a woman on East 96th Street who fell while watching the attack. The original fund paid only for injuries that existed at the time. When lasting illnesses emerged, Congress passed the Zadroga Act, which reopened the fund even for some people who had signed releases.
Putting a Price on a Life
Because the 9/11 fund replaced lawsuits, it followed the tort system in paying more for higher lost earnings. Economic loss was projected over each victim's working life using Bureau of Labor Statistics data. A standard $250,000 was added for pain and suffering, plus $100,000 for each surviving spouse and dependent. Feinberg admits the results could feel "outrageous" to families, such as a widower awarded $1 million while her neighbor received $3 million. That, he says, is how American courts value lives. The gift funds avoid the problem by treating similar injuries the same.
Room for Discretion
Each program Feinberg designs has an "extraordinary circumstances" exception, and he uses it sparingly so that it doesn't swallow the rule. He gives two examples from the GM program. One was a parent who lost two daughters within two weeks. The other was a driver who survived long enough to have both limbs amputated to free him from the wreck, and then died.
Volkswagen and the Archdiocese
The conversation closes with two programs Feinberg was then running. The Volkswagen diesel program was simple: owners could have the car bought back or fixed and receive an extra payment. The Archdiocese of New York's program for survivors of clergy abuse was far harder, involving claims 20 to 50 years old that were already time-barred. Survivors still had to sign releases, because the legislature in Albany might extend the statute of limitations.
What to Know Now
Several things Feinberg anticipated have come to pass. The problem of lasting illness that the original 9/11 fund left out is now the main work of the reopened fund. In 2019, Congress passed the Never Forget the Heroes Act, which made the September 11th Victim Compensation Fund effectively permanent, with a claims deadline of October 1, 2090, and funding to pay eligible claims. The fund now compensates illnesses linked to Ground Zero exposure, including cancers and respiratory disease, and its Special Master since 2023 has been Allison Turkel.
Albany did change the law. New York's Child Victims Act, signed in February 2019, opened a revival window for time-barred abuse claims, which was later extended to two years. Thousands of suits followed, and several New York dioceses sought bankruptcy protection. Survivors who had taken payments from the Archdiocese's program had already signed releases, which is the tradeoff Feinberg described. Roughly 1,300 of those suits were filed against the Archdiocese of New York, and in May 2026 the Archdiocese proposed an $800 million settlement to resolve them, conditioned on survivors opting in; negotiations were continuing as of mid-2026.
Combining mass claims has become harder in some areas and more organized in others. In Harrington v. Purdue Pharma (2024), a 5–4 Supreme Court held that Chapter 11 does not allow releases of claims against non-debtors, such as the Sackler family, without the victims' consent. That removed a tool many mass-tort bankruptcies had relied on. Purdue then won confirmation in November 2025 of a revised plan, funded in large part by the Sacklers, under which victims could choose whether to release their claims. Supporters of the ruling saw it as protecting victims' right to their day in court. The dissent warned it could reduce and delay compensation. A new Federal Rule of Civil Procedure 16.1, effective in December 2025, gives judges a framework for managing multidistrict litigation early in a case. Class certification in tort cases remains contested. The debate Feinberg's work raises also continues. Supporters of funds point to speed, certainty, and near-universal participation. Critics worry about privately negotiated awards and a public trial record that never gets made. Feinberg himself has written that future programs of this kind might do better to pay every eligible claimant the same amount. His work on the 9/11 fund was dramatized in the 2020 film Worth, with Michael Keaton as Feinberg, and he remains in practice in 2026.
