The Neutral

Apr 30, 2019

What kind of person makes a neutral referee? It’s not the kind of person you think. Learn more about your ad choices. Visit megaphone.fm/adchoices

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if the 24-hour news cycle leaves you feeling like you know everything but understand nothing you need to listen to one of Pushkin Industries new podcasts it's called Deep background and it's hosted by Harvard Law School Professor Noah Feldman Noah recently made news himself as one of the four legal Scholars chosen to testify at the house impeachment hearings he was the guy people said look like Benedict Cumberbatch

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now two women who are harlots came to the king and stood before him and one woman said oh my Lord this woman and I dwell in the same house and I gave birth while she was in the house then it happened Old Testament First Kings 3:16 that these two women one whose baby has died the other whose baby's still alive

each claims the living baby as her own they go to the new King Solomon and ask him to sort it all out

in the Night This Woman's child died because she lay upon it wherefore she removed my son from beside me while I slept and laid her dead child against my bosom she lies I don't know this is from the somewhat less than classic film Solomon and sheba the women are shushed by King Solomon played by Yul Brynner in whatever they use for spray tan in 1959 the living child is mine the dead is yours the dead is yours the living mine

bring the infant forward

a guard puts the baby down and then you'll Brenner tells him to draw his sword

divide the child into two parts

give half to the one woman after the other many close-ups of people looking horrified here

if it must be

be give the child to her that it may not be slain divided it should be neither has no mind

as nonfiction is not totally believable I mean why would either woman want to see the baby cut in half even the liar once alive baby not a dead one but Solomon such a good character no one cares take your son mother He's Surely yours would rather have surrendered him to another and to see them harmed

now at last I have seen a judgment of Solomon and your wisdom amazes me that Sheba the ladies do love the wisdom even if it isn't all that wise Solomon's trick only works if the baby Thief is suddenly happy to see it killed and stupid enough to show it otherwise he's got nothing worse than nothing to save face he'd probably need to go through with it and cut a totally innocent baby in half and then where does it leave him

as the guy who began his reign as the king of Israel by cutting babies in half still if referees have an origin story this is it and it's got two ideas buried inside and all Israel heard of the Judgment which the king had rendered and they feared the king for they saw that the wisdom of God was in him to administer Justice that's the last line of the story and the first idea the job of the

curry is so hard to do it doing it really well is a sign of divine inspiration

another idea is sort of taken for granted right from the start that the job needs to be done at all that when two squabbling human beings go looking for justice they should turn to some other human being to act as a neutral third party as a human beings weren't the problem in the first place

but people are just no good at resolving their own conflicts and he parent of more than one child knows this so does every teacher a lawyer and cop we just take it for granted that we need legal systems both formal and informal and we just assume that some totally innocent third party will want to help us to resolve even our most Petty disputes

we never asked why should someone with no real interest in our conflicts be better at refereeing them than we are and we also don't ask what actually makes someone good at this job no one wants

I'm Michael Lewis and this is against the rules a show about the attack on the authority of referees in American life and what that's doing to our idea of fairness

a few months ago I was at a bar in Washington DC with a friend of mine who's a sports writer Rob neyer

he is the opposite of what you think of when you think of sports Rider quiet well-mannered almost shy I suppose he's a fan but he's never fanatical he's like his writing cool analytical detached but then at the bar his cell phone rang

he looked at the number got all agitated oh I hate my life I hate these people who keep calling me but I have to take this one

I'd never seen him like this

he spent 20 minutes pacing around outside on his phone came back a total wreck angry distracted incapable of pleasure

it was this new job it taken he said as commissioner of an amateur baseball league

I would travel around and visit every team 11 ballparks which is yellow for most Baseball fans that sort of a dream come true why would I not agree to all of that it was known as the West Coast League the teams were all owned by Rich guys they had persuaded Rob to become the League's public face it's symbolic leader these rich guys love the game Rob love the game what could go wrong

what turned out that these owners argued amongst themselves a lot their coaches and players fought with each other to and everyone fought with the umpires they expected Rob as commissioner to get in the middle of all these fights and referee them but the rich guys hated to be refereed unless the call went their way that's what the phone call had been about in the Washington bar yet another dispute the Umpire reported that the head

coach poked him with his finger and this was the second time that this head coach had been suspended the first time he had sprayed whether inadvertently or not the rules don't make a distinction sprayed with saliva and umpire so he was suspended that time and then just a couple of weeks later he reportedly according to the umpires report poked the Umpire and fortunately the video was was inconclusive

so I felt like I had to take the umpires report at face value Rob suspended the head coach again thus pissing off the owner who blame the whole thing on the Umpire with whom he now thought Rob was in some sort of secret Alliance for his part Rob couldn't see what he done to deserve this no one asked if you had some special talent for reffing other people's disputes they just sort of assumed he'd figure it out

which he was trying to do you have to as a league you you have to have an incredibly compelling reason to dispute the report or the Integrity of an Umpire otherwise you just lose control you it's an anarchy that night in the bar that was when Robyn realized he was losing control

didn't this amateur baseball league it was Anarchy

I had just discovered two days after the fact that the head coach actually did not serve his suspension so yes I mean I was apoplectic because you what am I supposed to do now so what did you do to him

I suspended the owner for three games and levied a relatively small fine it how did he respond to that not well no not well at all the owner had screamed at him accused him of somehow being on the take from another team's owner but Rob was just doing his job enforcing the rules which sounds simple right

I mean Solomon did it but it turns out there's a great deal of ambiguity in the rules for example there is a rule against prolonging an argument after an ejection but there's no definition of prolonging and now I have to read all these things and watch video and try to make some sort of reasonable determination and almost in a invariably neither side is Happy ultimately with my decision

what kind of person would enjoy being in the middle well my it's a good question I keep getting this sneaking suspicion that there are at least a few people in the league who actually enjoy conflict who thrive on it I don't know if that's true maybe they can help themselves and maybe the conflict makes them as miserable as it makes me I don't know

and I've actually tried to reason with people these people who seem to enjoy it because I there's a part of me that thinks they can't be having fun yelling at me can they of course they can people love to scream it refs they do it all the time and the same people who love to scream it rafts also just sort of assumed the refs job is to sit there and take it I told Rob all this but it didn't seem to make him any happier

so I asked him was there anything he liked about his new job oh no then why not how at the end of the day how do you how do you feel good knowing that someone is upset with you and might be questioning your integrity robbed clearly never been a ref and he was learning that he wasn't cut out for it I probably couldn't be an Umpire because my first reaction would probably be to start

fighting fighting so you just be out there you'd be out there throwing Sledgehammer punches at the people who came up to argue with you well I wouldn't be good at throwing punches but yes I would be throwing punches the first time someone got sick two inches from my face and started screaming profanities at me I would lose I mean I have road rage issues not that I've ever done anything but but I have that impulse so they need to find different kind of person to do this job well I don't want to fire myself but I would recommend someone else yeah sure

I've watched Rob work for years on a book and overcome all sorts of obstacles but just a few months into his career as a referee he's already looking to quit hand the job to someone else but to whom I mean that generally not just in baseball in all the places where disputes need resolving the job obviously needs doing maybe more than ever but what sort of person can do it

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yes

back in 1979 a huge number of Vietnam Vets filed a lawsuit against Monsanto and Dow Chemical and other companies that had manufactured an herbicide Called Agent Orange millions of gallons of the stuff had been dumped onto the Vietnamese jungles to kill the plant cover used by the Vietcong

thousands of vets exposed to agent orange believed it was responsible for their various health problems they didn't have much evidence but the company's wanted to settle just to end the whole thing that effort kicked around the courts for five years but no one could find a solution that would satisfy everyone then the judge decided to see if he could find a solution outside the American legal system to appoint an outside mediator

special Master the courts called it

and I just got a telephone call out of the clear blue

from a federal judge in Brooklyn New York did he explain to you why he thought you'd be good at that job yes he said you've got the personality for it the young lawyers name was and is Ken Feinberg a case that went unresolved for half a decade he settled in six weeks a legend was born a changed my life it changed my professional life you see once I got a jinora

resolved and it was on the front page of every newspaper in the United States I started getting a flood of calls

was there anything any experience in your life before this that was like this where you could say oh I've been in this kind of situation before no I had been in high school and college I had been an actor on the stage I had thought the I might end up on Broadway when I went to law school in 1970

it was no course in mediation or arbitration was nothing like that

but there was this role that needed to be played in American life it just hadn't been written yet Feinberg created it by sheer force of personality

he went up running the 9/11 victims compensation fund and met personally with the families of the three thousand people who were killed he ran the fund to compensate victims of the BP oil spill after the 2008 financial crisis the United States Congress gave Ken Feinberg sole authority to determine the pay of the CEOs of the banks that had been bailed out by government money

and that's just the start Pulse Nightclub in Orlando Florida when the terrorist attack they raised and asked me to distribute 30 million the Harvest Las Vegas shootings from The Mandalay Hotel and I killed 59 people

they raised Thirty million distribute that money Sandy Hook they asked me to go up to Sandy Hook and decide how should we distribute the money the Pittsburgh Tree of Life synagogue shootings the next day the Federation of Jewish philanthropies in Pittsburgh call how do we distribute this money it is astounding a hundred thousand people after those Boston Marathon bombings sent in money

unsolicited

you know and Mayor Menino and governor Patrick said Ken you're from Massachusetts you grew up here we want you to design and administer a Compensation Program for dead 240 runners or observers at the Finish Line engine 16 singly amputees to double amputees 61 million distribute the money

the mass shooting in a movie theater in Aurora Colorado the thousands of disputes after Hurricane Katrina between insurance companies and homeowners who were covered for wind but not flood damage and they retained me to set up a mediation program any homeowner wants to participate voluntarily come on in Feinberg will be the neutral the neutral this magical extralegal character

this gifted referee who drops into a situation where people are traumatized a situation that also might easily become ugly and public

and he resolves it quietly privately and hardly anyone says anything about it or even knows who he is or just how much power he's wielded that's why victims advocate John feel once everyone who's eligible to sign up we had lost 42 people this year alone to 9/11 related cancers this will provide money to victims families in all of these programs you have some discretion but you have to exercise it wisely because

was the public

and the victims are all circling and how you strike the balance between paying people enough for their loss example peep 911

and not paying them too much so you couldn't so in Doling out the money you couldn't actually reflect just pure expected earnings you couldn't you couldn't the law wisely said and Feinberg shall consider expected earnings and then there's another Clause that says and he will see to it that Justice is done well that gave me the opening to bring down the top and bring up the bottom so that the gap between

died and the bus boy who died was not to why what was the difference the monetary difference between what would have happened if you just down a raw cold calculation of lost earnings and what you actually did oh I think some people I don't know how many but I think some widows or widowers I should say would have maybe got 35 million dollars in taxpayer money which I reduced to no more than six and what about on the other end and on the other end some people might

might have got $200,000 and I increase the bottom to up over a million homes he turned 35 million dollars into six for the family of a bond Trader and $200,000 into a million for the family of a busboy all by himself for free Feinberg refused to be paid for his work settling the 9/11 victims compensation fund

he doesn't take money after mass shootings either he just feels it's his duty to do the job and hardly anybody complains about the results of course plaintiff lawyers don't like it but about the only principled objection to Ken Feinberg comes from legal Scholars who worry that his success makes a mockery of the legal system

like this guy I'm Eric Posner and I'm a professor of law at the University of Chicago in his writing posner's raised questions about the role that Ken Feinberg plays

so the legal system doesn't always reflect people's ordinary moral intuitions about had disputes should be solved to give me an example seem like a concrete example or two of of outcomes the legal system might generate that would violate common-sense Notions of fairness so suppose you're driving your automobile and you run over a wealthy person and kill him his family sues

you may have to pay damages equal to his lost income which could be millions of dollars and then someone else runs over a poor person and the poor person's family sues and the the damages that are awarded might just be a few hundred thousand dollars or less just like what might have happened after 9/11 if Feinberg hadn't been there

because of this legal rule that compensates victims in their families based on their lost income that values people's lives by how much money they make

that looks quite unfair because it's as if the was saying that the wealthy persons life is worth a lot and the poor person's life is worth not that much and that's very much in consistent with our moral intuitions about equality this disconnect between the common sense notion of what's fair and with the legal system produces is allowed to sort of chug along until there's a big Spotlight thrown on it like there was a 911

right so the legal system can chug along as long as you know people aren't paying too much attention to it but when there's some kind of massive public Spotlight on the particular conflict that the was supposed to deal with people see how it operates out of context and they can get very angry

I love this idea that the only reason the legal system works is that people don't pay attention to it that when they do pay attention to it they're shocked by its unfairness that the stability of the entire Society depends on people not looking too closely at its foundation because when they do they get seriously pissed off and then the system you know our system of law and politics has to address this anger in some way this anger is a political problem that the legal system is really not

set up to address and that's when Ken Feinberg appears

when the anger hits a certain point when people are checking beer cans onto the field and deciding the game is rigged Feinberg descends by Parachute and the arena goes quiet and just about everybody accepts his judgment

and just about everybody agrees it's fair so we so it can Feinberg really is a political Solution that's exactly what he is he's a he's a political solution

a legal scholar looks at Ken Feinberg and asks why do we turn to this one guy time and again to dispense Justice and why is that justice so obviously different from what our legal system might Supply

I'm interested in a different question I look at Ken Feinberg and ask how the hell does he do it I mean how does any citizen of this fractious unreasonable entitled moronic country persuaded to come together and agree on anything is a be asking how you're doing that

I don't really think that most people who ask me to do this

they don't really Pro very much as to how it gets done they like the result right the time has come to ask him how he does it

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but I loved your book I went to visit Ken Feinberg at his apartment in the suburbs of Washington DC nice place not a money person's place not extravagant his wife Dee Dee's with us on the sofa beside us they're both in their 70s their kids all grown up and gone they've earned the right to move to some beach let the world find another referee but they haven't moved since we last spoke

I'm now resolving all of these Catholic priest abuse cases in New York and Pennsylvania we are the Cardinal Dolan in New York in the Archbishop in Philadelphia came and basically said to me you know this is one situation where the Jews have to bail out the Catholics and we've been resolving all these cases just how you want to spend your golden years reffing the dispute between the Catholic church and however many

Americans have been abused by its employees but this is clearly feinberg's idea I was about to say fun but that's not quite right it's more like his idea of where he needs to be like Feinberg GPS if at any given moment you want to know where Ken Feinberg is just go looking for the most upsetting public controversy you'll find him in the middle of it as the neutral the church came and said basically will you meet with individual victims

only if they don't want to they don't have to and we'll pay for it will compensate them for the for the damage we did horrible damage I mean penetration sodomy rape Going Back 40 years or more and we've resolved virtually all of the cases in New York how many were there well we know voluntarily that 1,500 people came forward in in five diocese in New Yorker

and 1497 of the 1500 we resolved

the victims don't have to accept feinberg's judgment and yet they do but why I mean why do these controversies always find him or he them

and how is it that he always and I mean always gets to a resolution

well I think that there are a couple of characteristics don't underestimate the importance of empathy the perception that you're trying to get into that person's shoes and understand the damage and I think the ability to listen I've learned the hard way

don't try and express too much empathy

it is perceived as Halo you're not in my shoes mr. Feinberg you're a Hired Gun you can empathize and express support

without saying things like I've said in my early years I know how you feel I said that went to one person who lost a son in the world to have the Pentagon 9/11 attacks 83 year old man buried his son and he said mr. Feinberg you're telling me you know how I feel you have no idea how I feel and it sounds pretentious and I'm just telling you you got a tough job but in the future

people like you listening to them they do it's very odd for someone who talks to try because you're a talker to you learn right yes so most people are stalkers don't listen you learn to listen sometimes I think that all people who are really good at what they do or like magicians

asking them how they do it is rude they don't really want to tell you they shouldn't tell you because they tell you they ruin the trick But Ken Feinberg he took money away from guys who ran Wall Street Banks I don't know how anyone does that

I thought that in cutting the pay of the CFO of Citibank

I would go to the CFO and say you don't need three cars and you don't need a home on Long Island and the summer and therefore I'm going to cut your pay by 80% and you get pushed back I figured about who you to tell me what I need you get victimology I love these Wall Street victims you get the CFO saying

you're cutting me by 80%

you have made a determination of my self-worth

when I look in the mirror in the morning I'm not thinking about two cars if you cut my pay you are telling me I'm not worth what I was getting they said this kind of thing oh my goodness this was a curveball this was a curveball you see it's not about material gain if you dare come to me and say I'm only worth 20%

of what I was worth last year

you have made a determination that my life is meaningless

that I'm only worth a fraction of what I thought I'm were what's your response to this

not a rabbi or a priest he kind of our no no yeah Feinberg doesn't want to go there part of his job as he sees it is to resist the temptation to make anything personal to expect some connection with the people on the other end of his work

I put it this way never take on one of these assignments and expect thank you

gratitude appreciation it never ever happens never the most you can hope for is resignation and why is that well because you know if you're worried about stuff like that you're going to split the baby you can't worry about how you'll be perceived post mediation

just like a referee in a basketball game can't be worried about how the team or a player will feel about that referee based on a call that he may she made you just have to do your job and have enough sense of self

he's been doing this work for 40 years now he's interacted with countless victims and perpetrators of tragedies it feels incredibly personal but no one stays in touch with Ken Feinberg one 9/11 victim sent me flowers on the 9/11 day for about 15 years one and I think it's very important to deliberately push people away

say this is a horrible chapter move on as best you can it's not easy and I'm not minimizing it but move on as best you can don't look back to this program or to me or the money just move on and so you push them away oh absolutely of deliberately pushed them

I gotta say I don't feel pushed away at least not sitting on feinberg's couch but I noticed he's got me on the edge of my seat wondering when he's going to erupt and fill the air with exclamation points he's obviously got several traits that make him good at what he does I can think of at least four none of which he mentions until I passed him a bit this is our second interview by the way so I'm actually re pestering him and you told me it was a throwaway line at the end of our interview we did

and that you actually had refereed you don't buy a baseball games in the 8th grade maybe and referee basketball games in high school and I couldn't believe you buried that that's you buried the lead as they say in The Newsroom when you were a kid how did you discover this interest in being in that role he likes being in charge

that's Ken's wife Deedee she knows the First Quality ego he likes being in charge yeah but he but there's a but you've got to be shrewd about how you're in charge because otherwise people take away the privilege those are an exclusive qualities not know they are expressive qualities but you've got if you don't pick the team's fairly you won't be allowed to pick the team's next time

second quality political sense shrewdness

a kind of ESP about disputes a nose for those that can be refereed and those that cannot example somebody says you know why don't you get the Israelis and the Arabs to sit down and you can get them to yes in the Middle East and I would say that I say to people that's not true I would take on that assignment you cannot get to yes on that assignment because for one thing you can't get the right people at the table to get to yes

you sit down as I read the newspapers you sit down with a group of Arabs and say we're going to get to yes with Israel and the Arabs may say yes they can't deliver their own group people so I mean that's a typical assignment where I would say no thank you can why don't you mediate resolution of congressional polarization let's get in a room and why don't you help them get to yes

possible that the yes that would want me actually they would want him he just wouldn't want them

because in those situations he lose something more than his time he lose a sense of who he is that's the third quality Feinberg has a kind of total immersion in the role of Ken Feinberg how many kids do you have 3 and help their how old are they today 4139 and 36 so when they were little and they're growing up what role did he play in disputes in the household you got it you nailed it right on the head

I was I was the mom who stayed at home with kids and he was the one who just walked in the house at the end of the day and I got him settled disputes he waits sit at the dinner table and we would hold Court was he good yeah he was good

so you know what's interesting is I think in my that I shy from conflict because I have like two modes it's either we're in a fistfight or we're just getting along I don't have the I'm very bad at the middle ground my wife saw me about this all the time black is white No Gray right and and so it's I don't like people shouting at me I don't like people upset with me I'd respond very badly to it so when I'm put in the middle of a dispute I don't usually respond that well to it

have trouble remaining neutral and keeping myself out of it and it sounds like you just don't tell you really don't you know when I try to draw Ken Feinberg out about himself he's either already got a story at hand or he acts like he hasn't heard the question so we're lucky is Weiss here on the flip side we've been married 43 years we've never had a fight I've had a lot of arguments but we have never had one you've never had fun doesn't engage

age you never had a funny way but they won't be confrontation no no conflicts a lot of self-control live his partner faked there can't be many married couples in America who been married more than a few years your I'm arguing I'm getting agitated and raising my voice and you know I just can't he won't give you anything back

to enter into a dispute as a participant even with his family would be a violation of his inner nature or at least some packed he's made with himself to stay removed apart the neutral a character who's maybe just a little bit feared

that's the fourth quality Feinberg has a willingness to intimidate not with Force but with force of character

and all Israel heard of the Judgment which the king had rendered and they feared the king for they saw that the wisdom of God was in him to administer Justice okay so it was my idea to have Ken Feinberg read the Bible but it's a funny choice of words they feared the king not because he threatened them

but because of what his disapproval said about them because he's righteous righteousness it's not really something you can learn

if you're looking to hire someone to be a mediator what qualities do you look for I mean I take a minority view I think I believe that mediators are born not made I don't think you can train somebody to Be an Effective mediator they either have the talent and the personality or they don't

either the wisdom of God is in them or it isn't

so we're doing a podcast on referees mediators and people who kind of resolve conflicts and so we were we were here for recess to talk to the fifth graders because they're the ones they were you know in battle will you I assumed but the did you did you were you the kind of person who got involved in other people's conflicts last year I mean it depends on what we were doing

I would often solve the conflicts of house playing because like that's just what I like to do but you know you like it you like it is if I'm yeah I do like to do it but it depends if I am playing a sport like if I'm playing if I'm not playing all just like stay out of it just because like I know I just so what do you like about

the peace process and getting involved into people who are violating it um I mean I guess it's just it's just I just feel proud because I don't like seeing their faces they're like okay okay yeah you know you actually it actually works yeah it works sometimes

I'm Michael Lewis thanks for listening to against the rules against the rules is brought to you by Pushkin Industries the shows produced by Audrey dilling and Catherine Gerardo with research assistance from Zoe Oliver gray and Beth Johnson our editor is Julia Barton Mia Lobel is our executive producer

our theme was composed by Nick brutal with additional scoring by Seth Samuel mastering by Jason gambrel a show was recorded by Topher Ruth at Northgate studios in Berkeley special thanks to our Founders Jacob Weisberg and Malcolm Gladwell