By Jeffrey B. Morris. Oxford University Press, 398 pages, $85
Linus Van Pelt in Charles Schulz’s “Peanuts” comic strip denied that he worshipped Miss Othmar, his teacher, even while freely acknowledging that he was quite fond of the ground on which she walked. That’s pretty much the way I feel about my senior colleague, the subject of Jeffrey B. Morris’s new book, “Leadership on the Federal Bench: The Craft and Activism of Jack Weinstein.” My ability to review the book objectively is diminished by the fact that I’d be captivated by an account of Jack Weinstein’s preferred grocery stores, or favorite travel routes to the courthouse. Nonetheless, my bias now fully disclosed, review it I shall.
The bedrock of Morris’s book is the “Weinstein Oral History.” This is not your typical oral history, involving two or three hours of recorded conversation with the subject. Morris began meeting with Weinstein almost 20 years ago. By 1994 there were 50 hours of recorded conversations with him about his cases and career. That early trove of material was supplemented over the years by additional recorded interviews, keeping the oral history current. Morris’s footnotes reveal that the transcript of the sessions exceeds 1,700 pages. The author has admirably woven into the book not only what he has gleaned from the judge and his thousands of opinions, but also information from a wide array of other sources about the man, his times and his contributions.
The main focus of the book is Weinstein’s work on our bench, but even those who already know a lot about the judge will learn more about his storied career, both before and after President Lyndon Johnson appointed him in 1967. That he was a law professor at Columbia and on the briefs of Brown v. Board of Education is widely known, as is his service as Nassau County Attorney under County Executive Gene Nickerson.
Less well known are his clerkship with Stanley Fuld on the New York Court of Appeals­—a formative experience for the young Weinstein—and that his brief stint in private practice included handling election matters for a Republican state senator. Morris brings to life these and many other interesting details of Weinstein’s early career. Lawyers of my and younger generations will be struck by the description of Weinstein’s unsuccessful effort, as a sitting federal judge, to be elected Chief Judge of the New York Court of Appeals (then an elected position), an effort that would not even be permissible today. (Along with Jack Mishler and Nickerson, both of whom graced the Eastern District bench, Weinstein has helped make the case that the best start to becoming a giant on our court is to lose the most important election of your life.)
Sit on the federal bench for 44 years and you can get a few things accomplished. Sit on the bench like Jack Weinstein does it for 44 years and you can become the single most important judge of your generation even while occupying the lowest rung on the Article III ladder.
Morris organizes well the vast accomplishments and disappointments of an astonishingly productive judge who remains just as active in his tenth decade as he was when he took the bench. The result is a rewarding stroll through the judge’s decisions, the political and social contexts in which he made them, and the impact of the most innovative and controversial jurist of our time, all of it anchored by the fascinating oral history.
There are some weaknesses. Too many cases are addressed, and some are ordinary, unworthy of attention in a book. Some case descriptions are tedious; others are perfunctory, with no indication of how the cases were resolved or why they helped shape the judge or his jurisprudence. The 10-point font borders on cruel. And Morris seems a bit out of his element when discussing criminal cases; an uninformed reader might come away thinking most cases include preliminary examinations, judges can freely immunize recalcitrant witnesses and the risk of prejudicial pretrial publicity is a common problem in even routine cases.
But these glitches are dwarfed by the book’s great strength: its excellent treatment of the various areas of federal law that bear Jack Weinstein’s signature. In chapters titled “Bringing Justice to Large Groups of People: Mass Torts and Class Actions,” Parts I and II, Morris walks the reader through how the judge almost single-handedly converted a fledgling mechanism for class actions into the modern law of mass tort litigation.
Beginning with the Agent Orange cases in the early 1980s, Weinstein created tools that helped him bring big solutions to big, complex national problems. From his invention of a “national consensus” standard to deal with the maze of conflicting state tort laws, to the use of multiple special settlement masters, to assuming the blended role of mediator and decision-maker to forge a settlement only hours before the trial was to begin, he built something that was not entirely judicial in nature but was remarkably effective. In subsequent cases he sought to build on what the Agent Orange litigation accomplished to solve other complex problems: the illnesses and deaths among millions of people exposed to asbestos in construction and other industries; millions of women and their daughters damaged by DES, a synthetic estrogen administered to pregnant women in the 1950s and 1960s; and the injuries attributed to breast implants, repetitive stress and the schizophrenia drug Zyprexa. And then of course there were the cases involving what Weinstein properly regarded as scourges of our city (illegal handguns) and country (cigarettes).
Though these later efforts did not achieve the level of success of the Agent Orange cases, they shaped the debate and the law concerning how our society deals with mass torts. Morris’s book helps the reader appreciate how and why Jack Weinstein created the field as we know it today. It doesn’t look precisely the way he might want it to look, and he’s weathered criticism and quite a few appellate reversals along the way, but all the meaningful features of the landscape of mass tort litigation were either created by or in response to Jack Weinstein’s decisions.
The marvel of the man is that his signature is in so many other places as well. Like many early supporters of sentencing reform, he has watched the determinate federal sentencing regime grow into something different, and dramatically more wooden and severe, than the reformers envisioned, and so he has taken on that regime in the name of justice. He literally wrote “the book” on Evidence and another one on New York’s Civil Practice Law and Rules. He remains an active, contributing member of the American Law Institute. He is and has been just about everywhere our profession goes, and Morris’s book does a fine job of taking us there along with him.
In one respect the book falls short of one of its goals, but the lapse is entirely understandable. Morris acknowledges in his introduction that Judge Weinstein is “virtually sui generis” and a “most unusual trial judge,” yet he strives to show through his portrait of the judge something universal about federal district judges generally: “It is this author’s hope that from this book, the reader will not only learn something about Jack Weinstein, but more generally about the federal district courts.” Thus, the book seeks to focus on the judge to “describe what trial judges do,” and to “answer…questions about the work of federal trial judges.”
As a federal trial judge myself, I applaud the effort. We are the public face of the judiciary. We make our decisions alone, and they have a dramatic impact on the parties before us, yet most of those decisions are either unreviewed or essentially unreviewable.
So the idea of shedding more light on what we do is a good one, but the truth is one learns about as much about federal judges from a book about Jack Weinstein as can be learned about boxers from a book about Muhammad Ali.
But Weinstein’s uniqueness is precisely what makes him worthy of a book. We are all engaged in the craft of judging, but he plies the craft on a different plane than the rest of us. And whatever your view about the wisdom of his decisions, or the correctness of his unusual conception of the judicial role in our democracy and society, no one has ever embodied all of Jack Weinstein’s vision, energy, scholarship, kindness, resilience and dedication to delivering justice. He is a Great American, and his life and career in the law are worth reading about even while they remain works in progress. Morris’s book is an excellent place to do it.
John Gleeson is a U.S. district judge in the Eastern District of New York.