The news was, broadly speaking, inevitable. It nonetheless arrived with a jolt: One of America’s most distinguished jurists, Jack B. Weinstein, recently announced his retirement after 52 years as a judge of the U.S. District Court for the Eastern District of New York. Still mentally at the top of his game, Weinstein, 98 years old, finally has found it too great a burden physically to continue on the bench.
In a career as practitioner, professor, and judge, Weinstein has been a central figure in the fields of civil procedure, evidence, and New York State civil practice. He was the principal author of the New York Civil Practice Law and Rules almost 60 years ago and then co-authored the principal treatise on the CPLR with Harold Korn and Arthur R. Miller. He played a major role in the creation of the Federal Rules of Evidence, also following that with a major treatise co-authored with Professor Margaret Berger. Before he came to the bench and during his judicial career, Weinstein wrote several hundred articles in a wide variety of legal fields and served on dozens of committees and boards. As a judge, he produced thousands of opinions.
Weinstein’s Early Career
Without a doubt, Jack Weinstein is a “Brooklyn boy,” although he was actually born in Wichita, where his parents were assisting his father’s newly widowed sister and her children. Weinstein became a Brooklyn resident at the age of four when his parents returned home. Almost a century later, Weinstein recalls the sights and sounds of Brooklyn during his childhood—when he was delivering milk at 4:30 in the morning and, following the horse-drawn milk wagon, collected droppings to be sold as fertilizer. Weinstein attended Brooklyn College at night while earning $14 for a 60-hour week with a trucking company whose office was located under the Brooklyn Bridge. Born into a loving American Jewish household that was neither really poor nor middle class, Weinstein learned through his job with the trucking company (and never forgot) what it meant for workers and for their company to be living at the margin of viability.
The Second World War took Weinstein to the Pacific, where he served as a junior officer on the USS Jallao, a submarine that saw action in the Pacific and sunk two Japanese cruisers. After the war, he considered advanced work in physics and mathematics but decided instead to enter Columbia Law School. After graduation, he clerked for the Hon. Stanley Fuld of the New York Court of Appeals, who would earn the reputation as one of the nation’s preeminent judges. While Fuld was no easy man to work for, Weinstein learned much from this “consummate craftsman,” who eventually emerged as a lifelong friend. Although only briefly in private practice, Weinstein did serve as a member of the legendary team of attorneys who worked on the appeal to the Supreme Court of Brown v. Board of Education.
In 1952, Weinstein became a professor at Columbia Law School, where he taught an unusually wide variety of courses and wrote prolifically. He also served for two years as County Attorney for Nassau County, during which he launched social action programs including the expansion of legal services for the poor. He became familiar with leading New York political figures, including Senator Robert F. Kennedy, who recommended his appointment to the District Court. President Lyndon Johnson nominated Weinstein in January 1967, and he was confirmed three months later. Weinstein was 46-years old when he took his seat on the bench.
Weinstein brought to the bench an outstanding legal mind, super-human energy, a habit of thoroughness, and a strong streak of independence. Graced with a felicitous prose style and steeped in legal history, much of his scholarship had been devoted to the modernization of the law. Along with encyclopedic knowledge of substantive law and procedure, he seemed to be intellectually curious about anything and everything. Weinstein came to the bench with notable self-confidence but also profound empathy. He was decisive yet tenacious. He could be dignified yet also puckishly witty and capable of great warmth.
Weinstein would prove to be a master at the job of a trial judge – discerning jurisdiction, pushing a case along, controlling discovery, transforming little cases into big ones. He knew how to protect the record to avoid reversal, but also how to make sure information found its way into the record so that new law could be made by an appellate court. He had a virtually unrivaled ability to shape and sometimes to transform cases by putting ingenious procedural strategies into the minds of attorneys appearing before him along with the capacity to gain considerable attention for his work. Over the decades Weinstein developed a reputation not only for these, but also for extraordinarily high productivity, fierce independence, striking innovativeness encompassing not only the use of new technology in the courtroom but creativity in the employment of procedural rules and willingness to remake substantive law. However, he was criticized for devising solutions that were too far beyond the precedents he had to work from.
Weinstein’s fount of energy was always extraordinary and continued well into his tenth decade. While a prolific writer of opinions, many of them quite long, he continued for decades to update his treatises and casebooks and turned out hundreds of law review articles. At the age of 82, while carrying a full caseload, he volunteered to attack the backlog of habeas corpus petitions among all the judges of the Eastern District. Assigned 500 of the nearly 800 backlogged cases, Weinstein resolved them all in about nine months, with the assistance of a former law clerk.
Weinstein’s independence as a judge was particularly fierce and was marked by considerably less deference to the Court of Appeals than the usual norm for district judges. For Weinstein, the real point of judges having independence is to allow them to take risks. Cases must be decided the way a judge believes they should be decided without worrying either about public opinion or reversal.
Weinstein was among the most innovative judges of our time, enough so that one Court of Appeals judge spoke of Weinstein as a man who “never saw an innovation he didn’t like.” Tongue in cheek, Weinstein riposted, “Sometimes innovations are successful, sometimes they are more successful.” Weinstein was innovative in techniques used in the courtroom, in the use of procedural rules and in the development of substantive law. He was keenly alert to the opportunities for innovation and willing to invest the resources and assume the risk of developing new legal concepts.
One particularly important innovation made by Weinstein while he was Chief Judge of the Eastern District was to push for greater integration of U.S. Magistrates (now titled “U.S. Magistrate-Judges”) into the court and to make much greater use of them. Weinstein himself used magistrates as special masters to, among other things, mediate, handle discovery, interact with administrative agencies, and achieve settlement.
Weinstein has made audacious use of the equity powers of a judge and been flexible in their use, issuing, for example, a series of path-breaking opinions on the power of district judges to stay litigation in state and federal courts throughout the nation. He made use of the common law to fill gaps in federal statutes. He offered a model of how a judge could use expert testimony. Weinstein appointed experts to the court to review scientific issues. He also made use of expert testimony by swearing in experts, seating them at a table with him and attorneys in the case, and engaging them in colloquies.
Weinstein and Mass Torts
Weinstein has had a marked national influence in the development of class actions for mass tort litigation and for pioneering the use of other methods for aggregating such cases. Through his opinions (many over one hundred pages) and other writings—articles, speeches, and his book, Individual Justice in Mass Torts Litigation (1995)—Weinstein has illuminated many corners of the field of class actions.
His most important work as a judge in mass tort cases occurred in the Agent Orange litigation, which has been described by Kenneth Feinberg (who has headed such funds as that created by Congress for the victims of the 9/11 attacks), as the “fundamental pillar, the precedent for all of the subsequent compensation schemes.”
The Agent Orange litigation involved a class action brought against the manufacturers of an herbicide that had been used by tens of thousands of Americans to defoliate Vietnam’s forests and mangroves. Between 600,000 and 2.4 million American veterans were believed to have had some exposure to the herbicide, which allegedly caused a variety of illnesses and reproductive problems.
Weinstein viewed the litigation over Agent Orange not as a product liability action multiplied many times over, but as a major social problem needing settlement. Seeing the case through a “wide lens” as an injury to the community, Weinstein’s underlying objectives were to see that the veterans not be left without a sense of recourse, but also that the defendants be charged only for harms they might have caused.
From his first meeting with the attorneys in the case, Weinstein took a comprehensive role in managing and structuring the Agent Orange litigation. He appointed then-U.S. Magistrate Shira Scheindlin to ride herd on the attorneys, forcing discovery into three months rather than the anticipated three years. Weinstein applied a “national consensus” standard as the appropriate governing law, leaving him with breathtaking flexibility in the application of legal principles. He avoided derailment of the cases by denying interlocutory appeals and avoiding writing final opinions, thereby giving many effectively unreviewable signals from the bench revealing his “preliminary thinking” to the lawyers. He took a powerful role in seeking settlement, which occurred a few hours before the trial was set to begin. The settlement was for $180 million. Although Weinstein’s work on Agent Orange was widely praised, there was some sharp criticism for his departing from the model of a passive, neutral umpire. The Court of Appeals affirmed virtually all of Weinstein’s rulings in nine separate, unanimous opinions totaling over 200 pages. The Supreme Court denied review. In the years after Agent Orange, Weinstein continued to make important contributions in class actions and aggregate litigation in cases involving victims of asbestos, breast implants DES and Zyprexa.
Sitting in a district with as rich a jurisdiction as the Eastern District of New York, Weinstein handled a great many highly noteworthy cases involving Mafia leaders, terrorists, political corruption, and immigration. While there are many more important Weinstein cases that should be noted, the format of this column permits just one more: In Nicholson v. Williams (2002), Weinstein dealt with a class action attacking New York City’s policy of removing children from the custody of battered mothers immediately after the government found out about the battering. By appointing experts from all over the country, the case led not only to New York City to alter its policy, but alerted governments all over the country to the problem. Throughout his tenure, Weinstein wrote many treatise-like opinions in cases to illuminate the law for other judges and practitioners, assisting in solving knotty legal problems.
The “Human Face of the Law”
Flowing through much of Jack Weinstein’s judging and his writing has been his emphasis on the “human face of the law.” Weinstein had a deep concern for and awareness of the humanity of the parties who came before him, and he also had the ability to put himself in their shoes. He demonstrated this repeatedly, but particularly in cases involving sentencing, Social Security disability decisions, and immigration cases. A judge must, he said, “expose himself or herself to the emotional and other needs of the litigants.” Furthermore, a judge should act in a “compassionate way,” he has said, “to show that the law isn’t all that rigid and cruel.” Just listening to people and demonstrating sympathy and empathy are important.
“Judicial activism” has become a pejorative phrase, often employed in the political arena as a reaction to the overruling, ignoring, or poor distinguishing of precedents. Weinstein has never denied that this label can be appropriately applied to some of his judging. He was often impatient with gate-keeping doctrines. His use of the powers of equity at times was breath-taking. At times, he has played fast and loose with precedent. Yet, far more than most judges, he was always been willing to explain why he did what he did carefully in writing. If he has been an activist, his has not been a reflexive judicial activism.
Weinstein has had one of the longest and most productive careers of any judge in American history. As rule-maker, treatise-writer, and scholar, he has left important legacies. As a trial judge, he was the master of his courtroom. As a jurist, he has taken a deeper and broader look at difficult problems and had the ability to find solutions others had been unable to see. Beyond his opinions and writings about class actions and mass torts, what Weinstein ought to be remembered for are the ways in which he placed a human face on the law and for opinions, articles, and speeches reflecting the belief that aiding the weak and suffering delineates the primary duty and soul of American law. Granted the good fortune of being able to spend a lifetime doing a job he not only loved but had a rare talent for, Weinstein never forgot where he came from and whom he was serving. We can pray that his aspirations for American law will prevail in a happier era.