Panel 3: DSD in Times of Crisis


Panel 3 – Realplayer Video

March 8, 2008
11:00 A.M. – 12: 30 P.M.

Our justice system traditionally presumes that conflicts arise between two parties: a single complainant and a single defendant. This notion is becoming increasingly outmoded. Class actions suits and mass tort cases test our current system’s ability to efficiently and justly resolve disputes while meeting the interests of multiple parties. Can we use DSD principles to rethink handling these types of complex situations?            

Photos:

  • Photo of Panel 3 (1)
  • Photo of Panel 3 (2)
  • Audience (1)
  • Audience (2)
  • 12 Comments

    1. Bob Bordone

      March 8, 2008 @ 11:25 am

      1

      Why is Ken so confident that it will not used as a precedent for a future terrorist attack. HE says it shouldn’t be used. But why is he confident it won’t be, especially if he largely defends its success?

    2. Lisa Blomgren Bingham

      March 8, 2008 @ 11:27 am

      2

      Gillian Hadfield has written a qualitative research study on 9/11 victims and family and their feelings about the Compensation Fund. She concludes that disputants did not want the justice system to reduce their recourse to a number, but rather, as citizens, they wanted to use the justice system to uncover information and make transparent who did what to whom, who was negligent, and where there were problematic decisions (e.g., telling people to stay in their offices and wait for helicopters) that suggest policy changes in the future. How do you think about justice in the 9/11 Fund?

    3. Bob Bordone

      March 8, 2008 @ 11:37 am

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      Janet Alexander raises an interesting question: When you design a new system we ought to consider what impact the new system will have on the systems already inplace or other systems. In other words, the system may end up changing the other procedures in place and there seems to be very little discussion (at least at ths conference) about how we ought to think about the exogenous effects of the system. Do we have a responsibility to consider this? If so, what is that responsibility and how should we be thinking about it?

    4. Akilesh Ayyar

      March 8, 2008 @ 11:50 am

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      I find the contrast between the touchy-feely aspects of the identity questions Udi poses and the mostly-money-oriented aspects of the compensation fund that Ken talked about (though he did mention the listening/venting aspect). Is there any kind of trade-off between addressing emotional needs and addressing financial concerns? Is the divisiveness engendered by unequal money distributions necessarily a block to emotional reconciliation?

    5. Lisa Blomgren Bingham

      March 8, 2008 @ 11:51 am

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      There are many ways to think about exogenous effects. In an institutional employment context, there are many complaint streams: collective bargaining, administrative grievances, workers compensation, employee assistance plans, sexual harassment policies, hotlines, EEO complaint procedures, etc. Does one new program reduce complaints in other streams? Does it make it easier for more people to use a process? (Is this even exogenous…)

      Using the example of adhesive employment arbitration, the common criticism is that it impoverishes the quality of precedent in the public justice system. To what extent do the speakers agree that the various examples they give of alternative systems have had this effect on public justice? Do we need to develop precedent in the context of these emerging new crises?

    6. Bob Bordone

      March 8, 2008 @ 11:53 am

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      We’ll try to get the ABA Report on Principles for Designing a System in the wake of a mass disaster and post it to our symposium website soon (assuming it’s available to the public).

    7. Bob Bordone

      March 8, 2008 @ 12:21 pm

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      Carrie Menkel-Meadow’s idea that it’s not just process pluralism that matters, but also outcome pluralism matters is an interesting one. In some sense, it is just saying that people have different interests with respect to outcomes. But that means that a good system has to be able to be responsive to different sets of interets. A system that can only deliver a certain kind of outcome (for example a monetary outcome like a court), might be a terrible system.

    8. David Lee

      March 8, 2008 @ 12:25 pm

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      For ease of reference (and to justify my use of a laptop), here’s the link to Gillian Hadfield’s paper:

      http://works.bepress.com/cgi/viewcontent.cgi?article=1027&context=ghadfield

    9. Joan McMaster

      March 12, 2008 @ 1:43 pm

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      It seems that lessons learned in times of crisis could be reconfigured in the preventive context even though the panel seemed to disagree w/that idea. Building DSD into new constitutional contexts in a very general way would give emerging populations some security that their grievances would be redressed in a prompt and meaningful way.

    10. Lande A. Spottswood

      March 17, 2008 @ 7:12 pm

      10

      I am a little late joining this discussion, because I am watching the web feed of the video now that it is posted, but I have a few thoughts on the panel:

      (1) The UN Compensation Commission — One of the things I liked about the system was how it utilized different fact-finding processes for different types of claims. Using different combinations of computer programs, models, arbitrators and judges for different situations seemed like a successful way to strike a balance between efficiency and accuracy in the fact-finding process. What is less certain from Mr. McGovern’s summary, however, is what other goals of DSD are achieved through the different treatments of different classes of claims. Based upon Mr. McGovern’s summary and the UN’s web site (http://www2.unog.ch/uncc/), it seems that all small claims are treated perfunctorily, which is good for efficiency, but it may not increase satisfaction of the stakeholders who have lost loved ones. The idea of a computer program noting, “Yes, you lost a loved one, okay here’s your check” might seem a little course, and not help heal those who were injured.

      (2) The precedential value of the 9/11 Victim Compensation Fund — It does seem like the question of precedent is a very interesting one surrounding the 9/11 Commission. As Prof. Bordone asked at the beginning of the panel, how can Mr. Feinberg know that the system won’t act as a precedent? Now, it may not act as a model, and it may in fact actually be held up as an example of what not to do in certain respects, but it will always be the backdrop for the discussion of how (and if) the next compensation fund should be designed. Kenneth Abraham wrote on this topic when he pointed out that certain novel aspects of the Fund (in particular how it both borrows from and rejects certain aspects of the tort system) were pushed into the spotlight because of the 9/11 fund. His paper was actually entitled “Genie and the Bottle” because his notion was that “the genie is now out of the bottle” and the 9/11 fund’s model will have to be considered in all future designs. Now, looking at what happened post-Katrina in 2005, it doesn’t look like this model has taken hold and become a revolutionary new model for compensating for loss of life in the US (at least not loss of life that won’t lead to a massive wave of litigation against the airline industry). This doesn’t look like a new kind of social insurance system. But what will happen with the next terrorist attack?

      (3) Designing empirical studies to measure effectiveness of DSD — Mr. McGovern just said that he thinks the most useful thing that the academy could contribute to the field of DSD would be to do empirical studies testing the efficacy of dispute systems. I think this is probably even more important when it comes to funds like the 9/11 fund, which aren’t ongoing dispute systems, but systems designed to deal with a single issue. With ongoing systems, the systems can be evaluated and adjusted as time goes on. But here, that is not possible, so the only way to learn is through collective wisdom in the academy.

      It also seems like he is referring to work just like Ms. Hadfield’s paper linked above (and just now mentioned during the panel), which does a great job illustrating some of the limitations of the fund.

    11. Esther Warshauer-Baker

      March 20, 2008 @ 1:54 pm

      11

      I was also intrigued by the classification system used to distribute the UN compensation fund. Using computer modeling certainly can increase the efficiency of the distribution, but I’m curious to know how the use of computer models to generate compensation amounts jibes with Ken Feinberg’s “microlesson” of the importance of the right to be heard. In what forum should individuals be heard when their claims are managed by computer software? Do you lose what you gained through computer assistance if you do give people the opportunity to be heard? Or, as Lande suggests, might you gain something in stakeholder satisfaction? Would it upset individuals to know that their words would have no bearing on the compensation they receive? Or do people primarily want their stories to make a difference in some other way? Or, is the right to be heard primarily about catharsis? Perhaps the comment from the audience close to the end of the session fits in here: maybe the opportunity to be heard is important – or not – to different people for different reasons.

      It does seem ironic that corporations, which I would guess might have less of a desire to be heard than individuals, get their disputes resolved through arbitration — a forum that gives the opportunity to be heard – while many individuals get a computer. Given the efficiency concerns, though, perhaps this is unavoidable?

      I wonder, too, how this relates to Udi Eiran’s opening comments about identity. He argued that the use of earnings capacity by the 9/11 compensation fund as the metric for compensation reveals the socially constructed value placed on earnings capacity over, say, number of lives saved. One could say something similar about the UN compensation commission – if I understand it correctly, the higher the monetary value of the claim, the more arbitration-like your compensation determination would be. Larger claims might be more complex and less amenable to computer projections. Still, does this system say something about the social value placed on individual claims versus corporate claims, for example? Or the claims of wealthy individuals versus poorer individuals?

    12. food pyramid

      August 18, 2011 @ 2:42 am

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