Somebody gets it...

There are ways to put a value on that bartered shrimp: A guest column by Douglas A. Kysar
Published: Thursday, December 23, 2010, 3:36 PM

In the classic law school novel, "The Paper Chase," Professor Charles W. Kingsfield, Jr. personifies everything that is frustrating and obscure about the law. Memorably portrayed on-screen by John Houseman, Professor Kingsfield relentlessly pushes and criticizes his students in an effort to teach them how to "think like a lawyer." If reports out of the Gulf are to be believed, Kenneth Feinberg is staging his own re-enactment of "The Paper Chase," starring himself as the exacting professor and victims of the BP oil spill as his unwitting students.

In his role as chief administrator of the Gulf Coast Claims Facility ­-- the $20 billion fund established by BP to compensate individuals and businesses affected by the Deepwater Horizon disaster -- Feinberg faces the difficult challenge of offering speedy and fair compensation to hundreds of thousands of claimants without also rewarding false claims. So far, Feinberg seems to be erring on the side of denying valid claims, perhaps to make good on his prediction that the money set aside by BP will be more than enough to compensate all eligible victims.

The most worrisome example of this tendency is Feinberg's treatment of subsistence use claims by the Vietnamese-American fishing community. Members of this community have been hit particularly hard by the spill. 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.

But members of this community don't just depend on the industry for a paycheck. They also typically hold back a small portion of their catch or harvest for "subsistence use."
Rather than sell this portion in the market, they reserve it for their own consumption, for sharing with relatives and neighbors or for bartering with other members of their community. And 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, yet Feinberg has indicated little interest in recognizing them.

Why? One concern might be valuation: How does one put a price on practices that are specifically intended to happen outside of the economic market? After the spill, Vietnamese Americans couldn't just go to the supermarket to replace what was lost. A major point of subsistence use is that members of the community become reciprocally dependent on each other, rather than on some anonymous supermarket chain.

This might sound like a law school exam question, but it's really not that hard. The legal system faces a similar dilemma every time someone is compensated in money for wrongful loss of life or limb. There may be no right answer to the question, "How much money is a life worth?", but there is definitely one wrong answer: zero.

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.

Feinberg might also be concerned about documentation. Admittedly, with $20 billion on the table, the Claims Facility is likely to attract speculative or even fraudulent claims. But any historian or social worker knowledgeable about the Vietnamese American fishing community will attest to the prevalence and significance of subsistence use.

Feinberg seems to think that these losses can be proven through formal receipts or legal documents. That expectation is misguided when the loss at issue is specifically intended to avoid formality and legality. The very meaning of subsistence use to the Vietnamese-American community would change if it required elaborate paperwork and accounting ledgers.

For Feinberg to deny these claims because they don't leave a paper trail like "normal" claims adds insult to injury.

All of this should be obvious to Feinberg. It should also be obvious that if the Claims Facility insists on the same level of paperwork and exactitude as the legal system, then the whole reason for having an alternative to the legal system will disappear. The people of the Gulf have seen enough disappear in recent years.

Douglas A. Kysar, Joseph M. Field '55 Professor of Law at Yale Law School, is the author of "Regulating from Nowhere: Environmental Law and the Search for Objectivity" (Yale University Press). His e-mail address is douglas.kysar@yale.edu.