Esteemed Yale Law Professor Says Kenneth Feinberg “Personifies Everything that Is Frustrating and Obscure About the Law”


Well, 2011 begins in the wake of a terrible week for the legal standing of the Gulf Coast Claims Facility. The underpinnings had already eroded significantly, with states and victims asking a judge to order more even-handed treatment, and, earlier, Alabama Attorney General Troy King issuing a “consumer alert” about representations by Kenneth Feinberg, the claims center administrator.

Into that now comes a potential tipping point: Yale University Law Professor Douglas A. Kysar, writing in (and at the request of) the Times-Picayune, has published a scathing essay equating Mr. Feinberg to the fictional Professor Charles W. Kingsfield Jr., the character from “The Paper Chase” you likely recall because of actor John Housman’s magnificent performance.

First noting that the Paper Chase professor “…personifies everything that is frustrating and obscure about the law,” Mr. Kysar says Mr. Feinberg “is staging his own re-enactment…starring himself as the exacting professor and victims of the BP oil spill as his unwitting students.”

To establish his case, the Yale professor notes that “up to one-third of the Gulf Coast fishing industry is Vietnamese-American and more than half of Vietnamese-Americans in Louisiana, Mississippi and Alabama are dependent on the fishing industry for their livelihoods.”

And, of course, Mr. Feinberg has not only denied those claims en masse, but they are often noted as an example of the “no documentation” practices of some of our local Gulf economies. Referred to by the patronizing term “subsistence-use claims,” they represent the practice of saving some of the catch for personal use or giving to other members of the community. In a slightly different form – say, you agree to watch your neighbor’s home while they’re on vacation – this is akin to what they call “cultural capital.” Maybe your neighbor should report that “income” based on what a security firm would have charged?

Mr. Kysar rightly points out that these “practices aren’t just about eating shrimp and oysters – they are about strengthening and preserving culture. Subsistence-use claims of this sort are clearly eligible for compensation under the federal Oil Pollution Act… [and] by denying subsistence-use claims, Feinberg suggests that the value of the Vietnamese-American community’s cultural practices is zero. He should instead look to market replacement cost or some other admittedly imperfect proxy…after all, it’s better to be vaguely right than precisely wrong.”

At this point, we might wonder if the real question is how much more rope is allotted to the Gulf Coast Claims Center process. Mr. Feinberg raised eyebrows last week by saying that he expects that economic claims will only require half the $20 billion BP set-aside fund – a statement that means little to Gulf residents but likely means plenty to anyone eyeing BP stock purchases.

Granted, Mr. Feinberg has every qualification to address the inner workings of the BP fund – he’s really the only one who knows what’s planned in the coming months. But I’m thinking that the final bill for economic damages for the BP spill could be more than double that $20 billion, and remember he’s not talking about the fines and other categories of payment.

A well-respected Yale law professor authoring such a strong statement on the heels of learning that the strongest academic voice in favor of Mr. Feinberg’s claims arrangement was hired to offer BP “ethics advice” – at $950 an hour. Well, you never know about tipping points but this has the look and feel of a real sea change in claims perception.

It’s the kind of change that often leads to serious political pressures, especially as Congress returns to Washington for a new year. (And since Professor Kysar included his email in the Times-Picayune essay, I’ll repeat it here. I don’t know the readership of the op-ed page there, but we’re weighing in at about 60,000 unique visits a day, so hopefully he has time for some emails.)

Mr. Kysar’s must-read essay is here:

The professor’s published email is

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Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
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