Judge Jack Weinstein may have taken senior status more than two decades ago on the US District Court for the Eastern District of New York, but at age 93, he continues to handle a full docket. In his 47 years—and counting—as an Eastern District adjudicator, including eight years as chief judge, Weinstein has made an unparalleled impact, particularly in the continually evolving area of mass torts. Simultaneously, Weinstein has been a prolific legal author. His important work of both adjudication and scholarship prompted the student staff of the NYU Annual Survey of American Law to dedicate the journal’s 72nd volume to Weinstein in a warm and lively ceremony on February 24.
Introducing the event, Dean Trevor Morrison described Weinstein’s fame stemming from “the strength of his principles and his unflagging efforts to combat what he calls the unnecessary cruelty of the law.” For example, Morrison explained, Weinstein has refused to handle drug cases due to his opposition to mandatory minimum sentences, and has issued rulings attacking five-year mandatory sentences for those convicted of receiving child pornography. Morrison also praised Weinstein’s innovative contributions to the field of class-action and aggregate litigation; in recent decades the judge has set many important mass-tort precedents while presiding over litigation involving Agent Orange, asbestos, guns, and pharmaceuticals.
Christina Liu ’15, the Annual Survey’s editor-in-chief, addressed Weinstein as she spoke of his “towering contributions” to legal scholarship on civil procedure, evidence, and complex litigation. Liu also mentioned Weinstein’s recognition of the law’s human element: “You have sat face to face with defendants, have placed the defendant’s hand in yours as you sentenced him, and have put your arm around a defendant’s family member to provide comfort in times of need.”
Adjunct Professor John Gleeson, a colleague of Weinstein on the Eastern District bench, first encountered him three decades ago when Gleeson was an assistant US attorney in the Eastern District; nine years later, Gleeson assumed Weinstein’s vacated seat when the older judge took senior status. Calling Weinstein “the single most influential judge of our time, even while occupying the lowest rung on the Article III ladder,” Gleeson described Weinstein’s iconoclastic approach to jurisprudence.
Not only does Weinstein eschew robes for an everyday suit, but he also sits with litigants at the counsel table rather than on the bench, making the environment “much more like a book group than a courtroom,” Gleeson said. More significant, he added, Weinstein tends to dispense with formalities in the interest of expedient justice. Gleeson recalled one of his early cases as an assistant US attorney when, as Gleeson tried to submit evidence, Weinstein told him, “You have enough evidence to win your case, so let’s end this trial.” This statement, Gleeson suggested with a grin, reflected the “you’ve got enough rule of evidence preclusion.”
Elizabeth Cabraser, a partner at Lieff Cabraser Heimann & Bernstein and a prominent mass-tort lawyer, praised Weinstein’s book Individual Justice in Mass Tort Litigation as one of her most essential references. “Its writing is plain, clear, and true, and both poses a profound paradox in modern litigation and points us to the solution: How do we preserve the dignity and value of individuals in our mass age? How do we counteract the digitization and depersonalization when people are victimized by mass wrongs?”
The night before Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, began law school, he read Weinstein’s 240-page opinion in Hart v. Community School Board and was confounded by its legal complexities. His later encounters with Weinstein, a fellow faculty member when Issacharoff taught at Columbia Law School, were often equally challenging, especially when Issacharoff served as reporter for the American Law Institute’s Principles of the Law of Aggregate Litigation.
Weinstein, an adviser to the project, insisted indefatigably that it should look beyond working out how courts should deal with the cases before them to a more ambitious agenda of restoring the concept of equity to aggregate litigation. In the end, Issacharoff admitted, “I realized just how coherent his idea of equity in justice was.” Despite the Second Circuit’s overturning of many of Weinstein’s most progressive opinions, his rulings had as much of an effect on the appellate court as the judge had on the younger professor: “In each of these circumstances, Jack is way out ahead of the law, way out, and pushing the law…. But each time it got overturned, the law moved. The Circuit didn’t look like it did before.”
Les Fagen, a partner at Paul, Weiss, Rifkind, Wharton & Garrison who once clerked for Weinstein, revealed that the judge had been condemned by both Dr. Phil and J. Edgar Hoover. “Undeterred by controversy,” said Fagen, “Jack Weinstein goes on with the job of judging. He follows the law, but when he finds that the rigidity of the law is inadequate to do justice, he follows his soul to interpret, apply, shape the law and sometimes, infrequently, even to defy it.”
Diane Zimmerman, Samuel Tilden Professor of Law Emerita and another former Weinstein clerk, offered her own take on Weinstein’s inclination to reach beyond the established boundaries: “The judge opened my eyes to understanding the operation of the law in the social context rather than solely in a formalistic vacuum. He knew that ignoring the broader consequences of discrete legal decisions can be perilous, that society is poorer for every instance where law and justice diverge.”
Kenneth Feinberg ’70, the country’s most prominent leader in mediation and alternative dispute resolution, has successfully carried out nearly impossible tasks as special master of victim compensation funds for mass tragedies such as 9/11, the Virginia Tech shootings, and the BP oil spill. He freely acknowledged that Weinstein had “invented” him, explaining that, when the judge called out of the blue to ask Feinberg to mediate the Agent Orange claims, Feinberg’s career began an astonishing new trajectory: “Overnight, that one case changed my professional life.”
When Weinstein’s time at the lectern finally came, he accepted the Annual Survey honor on behalf of all federal district judges. “Trial judges are the eyes and ears of the judicial system, applying the law to the real world,” he said. “Our grasp of the facts and societal changes is essential, not only in deciding individual cases but in providing the basis for needed changes in the law, both procedural and substantive.… When seeking truth, passivity is not a virtue. Justice requires us to be skeptical, to doubt, to question, to test, and to think outside the box. That we may be reversed on appeal must not inhibit us in the least, and does not.”
Watch the full video of the event (1 hr, 39 min):
Posted February 27, 2015