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Vol. 8 - Issue 1
January 3, 2019
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I told Jack Weinstein that I'd come to figure out what makes him tick. "Should I lie down on my couch?," the legendary jurist asked, looking over at the seating area in his spacious office in Brooklyn federal court. With a million Dollar view of the bridge that is constantly offered for sale to the gullible, Judge Weinstein was just getting warmed up. While the 97-year old scion of the Eastern District of New York uses a cane to get around, that's the only step he's lost.
Weinstein has been a federal judge in New York for over a half-century. He was appointed to the District Court by President Lyndon Johnson. Yeah, Johnson. Weinstein's age allows for some wonderful anecdotes. He was RBG's evidence professor when the would-be Supreme Court Justice was a student at Columbia Law School. He assisted Thurgood Marshall, and his NAACP legal team, in Brown v. Board of Education. Weinstein downplays his role, but the organization's Supreme Court brief bears his name. And Weinstein's Senate confirmation hearing took place in a bygone era. He was asked four questions. His collective answers required a grand total of 48 words – a little less than one for each of the 52 years he would go on to serve on the bench.
Weinstein himself couldn't pass up a joke about his age. While he does not wear a robe in court, one is sometimes required for ceremonies. And this has become a problem. "I'm now shrinking," he quipped. "So when I have to wear a robe I have to remember to bring in [an altered one]."
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Weinstein's body of work as a judge is there for anyone to see. And what those who look will find is fierce independence – admittedly sometimes making decisions based on a sense of rightness, even if not always following the literal reading of the law. Not surprisingly, he sets himself up for reversals by the more stickler-like Second Circuit Court of Appeals. But, for Weinstein, that's just a cost of doing business – his way.
If my interest were only in Weinstein's work I could have stayed in Philadelphia and typed his name into Lexis and also looked at his landmark treatises on New York civil procedure and the Federal Rules of Evidence, which both came about following his extensive role in drafting these rules themselves.
But I have a different search in mind: the answer to the question -- what has made the near-centenarian jurist so unique? And of course I couldn't get inside Jack Weinstein's head sitting at my desk. I needed to go to Brooklyn. And it was well worth the trip to where the tree grows. I got what I came for.
Over the course of a half-hour that I won't soon forget, the gracious and quick-witted Weinstein shared with me some memories of his remarkable life. I listened to his testimony and reached my verdict. Weinstein's judging is the product of a combination of life experiences.
Weinstein grew up during the height of the Depression, where working hard wasn't about getting ahead -- it was about survival. He worked on New York's docks and in its train yards to put himself through Brooklyn College at night. This exposed Weinstein to people living on the economic fringes. These memories were never forgotten, translating into an application of humanity and judicial access to his decisions. Weinstein's time on a submarine, during World War II, taught him the control that he would later bring to his courtroom. Columbia Law School opened up the future judge's eyes to innovative uses of the law. And from Weinstein's time as a law clerk, for a perfectionist and abusive Judge of the New York Court of Appeals, he would always be reminded of the standards that his work could be.
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Jack Weinstein's Way
In "Leadership on the Federal Bench – The Craft and Activism of Jack Weinstein" (Oxford University Press, 2011), Jeffrey Morris, Professor at Touro College School of Law, provides a 400 page (tiny font) study of the life and career of Judge Weinstein. Besides Morris's encyclopedic knowledge of Weinstein's work, his outstanding book also features excerpts from a 2,000 page oral history of the Judge that the professor prepared, over the course of two decades of one-on-one taped conversations.
In his book, Professor Morris recounts the story of Alan Skop, Inc. v. Benjamin Moore, Inc. It was 1990. Weinstein had before him the owner of a paint store, and his son, a painter, seeking a preliminary injunction to prevent Benjamin Moore from pulling the store's right to sell its paint. During the hearing, Weinstein asked to see the two painters' hands. The Judge described them as "very heavily calloused" and "with paint stains embedded" and called the workmen "just a half a rung up from poor workers." Weinstein observed that their hands reminded him of the calloused hands of those with whom he had worked, decades before, lifting crates on Brooklyn's docks for a trucking company. He concluded that he believed the painters' hands more than the words coming from the paint company executives. Relying on equity, where rights are not to be terminated improvidently, Weinstein granted the injunction. The Second Circuit vacated it. |
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I asked Weinstein about the Skop case. He remembered it well, chuckling as soon as I mentioned the name. Looking at his own hands and turning them, Weinstein recounted what the painters' looked like.
Weinstein also remembered that he had been reversed. But it wasn't just a reversal, I pointed out to him. I reminded the Judge that the Second Circuit didn't even break a sweat in concluding that he had "overstepped [his] discretion" as there was no legal basis for the preliminary injunction. Weinstein explained his thinking to me. "I had hoped that the people from the paint company would relent and say 'ok, we'll make an exception in this case' but they wouldn't," he said, with a tone of dejection still in his voice all these years later.
In 1976, Weinstein decided In re Holliday's Tax Services. He permitted the sole shareholder of a closely held corporation, who was not an attorney, to represent the corporation in a bankruptcy proceeding. This, despite acknowledging that "[a] virtually unbroken line of state and federal cases has approved the rule that a corporation can appear in court only by an attorney." But all streaks must come to an end.
The rule, Weinstein noted, "protects the courts from pleadings awkwardly drafted and motions inarticulately presented." However, observing that the lack of a guarantee of counsel to people of modest means is "one of the scandals of our judicial system," Weinstein concluded that "[a] person's day in court is, however, more important than the convenience of the judges."
While the Holliday's decision was affirmed by the Second Circuit, without opinion, a Southern District of New York judge recently noted that "there now exists overwhelming case law that is contrary to the holding." [Edelstein v. 360 Sports Management, Inc., 2017 U.S. Dist. LEXIS 61182 (S.D.N.Y. Apr. 21, 2017).]
David v. Heckler began in small claims court and turned into a class action over the Department of Health and Human Services's incomprehensible explanations of benefits provided to Medicare recipients. In his 1984 decision, Weinstein, as Chief Judge, lambasted DHHS for issuing letters that "defy understanding by the general populace." He order the Department to take prompt action to stop using letters that contain "bureaucratic gobbledegook, jargon, double talk, a form of officialese, federalese and insurancese, and doublespeak. It does not qualify as English." I read all of this to Weinstein. He listened intently and his response was decisive. "I was right," he said, chuckling.
Weinstein's way also includes the use of innovative techniques to address large multi-party litigation and keep cases in his courtroom. As Professor Morris points out, concerns about Weinstein's activism flow from his "impatience with gate-keeping doctrines," such as standing, mootness and abstention. When Weinstein gets a case, "I like to decide it," he has said. "I'm not too excited about jurisdiction." (stated in the context of deciding in which New York district a case belonged, and not Article III). |
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Weinstein's Background: "I Can't Escape It."
Jack Weinstein was born in Wichita in 1921. His grandparents had emigrated to the United States from Eastern Europe. By around age five he was living in Brooklyn – his parents having returned to New York following the care of relatives in Kansas.
As Professor Morris recounts in his book, Weinstein had a variety of jobs as a child during the Depression, including appearing in some Broadway shows. Weinstein smiled when I mentioned his failed screen test for the "Our Gang" comedies. But it wasn't all glamorous as Morris points out. Weinstein woke at 4:30 A.M. to help deliver milk. While following the horse-drawn wagon he saw an opportunity for added income. He collected the droppings and sold them as fertilizer. I joked to Weinstein that this was the beginning of his use of creative solutions to problems. He mentioned that he also collected lost clothes pins and sold them back to their original owners.
Weinstein shared with me the struggles of his parents and grandparents trying to keep the family together during the Depression. In his oral history he stated that "it was always the practice in his family to work at as many jobs at the same time as possible."
Following high school Weinstein went to work for a trucking company, doing office work as well as handling freight on New York's docks. He attended Brooklyn College at night and shared with me fond memories of the men with whom he worked. "None of the men in our barn, where they kept the trucks, had more than grade and partially high school educations. They all gave me full support because here was a kid that came out of their background, more or less, and went to college and they all wanted me to succeed." Surely Weinstein's experience with these men stayed with him as a judge, I suggested. "Of course."
Weinstein has said of his judging: "Whenever I see the chance to improve the administration of justice or to correct an injustice I will utilize whatever powers I have." Weinstein has said it's in his "background." "I can't escape it."
World War II – Learning Control On A Submarine
Weinstein's training for the bench began early. Following graduation from Brooklyn College he went on to be a Lieutenant in the Navy during World War II. He was given training in electronics and radar and served on the submarine USS Jallao.
I asked Weinstein whether his Naval experience impacted him as a judge. It certainly did he told me. In addition to leaning discipline, it taught him a "certain self-reliance," something necessary "particularly if you are a deck officer during wartime and responsibility for the entire ship is in your hands, as it is on a submarine a night."
From this, Weinstein explained, "I never felt any problem coming into court. It was my court. I had the conn. I was in charge. I was afraid of some questions I would be asked and I knew I would have to say 'I don't know' and go back and study. But it was my courtroom and it was my ship."
"I've never used a gavel. I've never used a robe in the courtroom," he told me. About abandoning these judicial trappings, Weinstein has said: "When I come into a courtroom I don't think there is anybody that doesn't know that I am in charge. I don't need help." Weinstein sometimes also eschews the use of his bench. He enjoys hearing cases while sitting at a table with all parties and lawyers gathered around.
The Impact Of Columbia Law School
Weinstein entered Columbia Law School in 1946. He has said that, prior to law school, he had never meet a lawyer. I posed to Weinstein whether this could account for taking unique approaches to the law. In other words, he didn't do things because they had always been done that way, because he didn't know what that way was.
"Possibly," Weinstein responded. "The law meant nothing to me until I went to Columbia." But it wasn't just Weinstein seeing the law as something new. So too were his professors. "I was enormously impressed by the faculty then," Weinstein explained. "Each one of the faculty members in their courses were considering new ways of doing things. It was just after the war and our minds had been opened up. Many of the faculty had served in the government." Weinstein said that this instilled in him "the idea that you asked 'if it's going to work' as well as 'what is the precedent.'"
He shared the lessons of some of his Columbia professors. From the noted scholar, Karl Llewellyn, "you have to look at the essence of the problem, the essence of the litigation, before you begin to work on it."
Weinstein also recalled a class that "almost nobody liked because they didn't like the professor, Julius Goebel." But Goebel, teaching the development of legal institutions, had an influence on the future judge. From this unpopular professor Weinstein learned that, over time, the English courts completely changed both the substantive and procedural law. But it took hundreds of years for this to take place. Weinstein contrasted this with here: "Our economy and society and technology have changed so rapidly that we've been forced to make almost equivalent changes in the space of very short time. So that course really opened my eyes to what could be done by the courts in making new law."
Weinstein's association with Columbia Law School continued long after his graduation. He served on the faculty for fifteen years before his appointment to the bench and continued to do so for thirty more, even after joining the Eastern District.
Judge Fuld And The New York Court of Appeals
From 1949 to 1950, Weinstein was a law clerk for Judge Stanley Fuld of the New York Court of Appeals. Fuld was a perfectionist, causing him to be abusive to his clerks. "A tough guy," Weinstein described Fuld to me. "He demanded a great deal of himself and therefore he made demands on us that I think were really outrageous."
But despite the unpleasant experience, it was not without a positive effect on Weinstein. "Very often when I'm working here I think of him. 'You can do better than that Jack. What would Fuld think of this? He wouldn't accept it.'"
Indeed, Fuld's effect on Weinstein went beyond his work. "For years when I was a judge, when he was alive, when I would speak to him on the telephone, I would stand up," Weinstein said, laughing at this memory.
The Senate Confirmation "Hearing"
Weinstein's Senate confirmation hearing, before the Judiciary Committee, took place on April 12, 1967. I got my hands on the transcript. It began at 10:35 in the morning. It adjourned at 10:40. But for Weinstein's part, it was far from even five minutes. Most of the speaking was done by Senators Jacob Javits and Robert Kennedy, discussing Weinstein's excellent reputation and qualifications. When they finally got around to Weinstein it went like this:
Senator James Eastland (Chairman): Mr. Weinstein, is this paragraph here correct? [Presumably a copy of his bio.] I believe you have a copy there.
Weinstein: Yes, sir, it is.
Eastland: It will be placed in the record. How long have you practiced law, sir?
Weinstein: Eighteen years.
Eastland: What has been the nature of your practice?
Weinstein: General practice, all litigation; and teaching and advising various legislative and other commissions.
Eastland: What courtroom work have you done?
Weinstein: I have been in all the courts of New York state, as well as a number of the federal courts. In private practice I was primarily in appellate courts.
Eastland: That will be all. The meeting will be adjourned.
Weinstein: Thank you very much, sir.
I read the entire colloquy to Weinstein. It took me 30 seconds. Weinstein recalled that he was also asked how was the trip to Washington?
Senator Javits, in stating his support for Weinstein, called his appointment "thoroughly noncontroversial." I read this to Weinstein and smiled. "I don't know if I'd be confirmed today," he said, chuckling.
The Activist Label
Doing things his way has earned Weinstein the title of an "activist judge." But he disputed the connotation of that term. "We're all activist judges," he told me. "You're an activist judge if you want to go back. You're an activist judge if you want to go forward. And you're an activist judge if you take no active -- because that's action. So all judges have to be activists."
Weinstein also said that he is not guided by any sort of judicial doctrine. "I don't want to go right, back to originalism or forward to some other theory," he explained. "I try to be as pragmatic as I can, and decide, as Llewellyn indicated, on the essence of the problem in the case among the litigants."
The Welcomed Missed Opportunity
Around 1980 Weinstein was passed-over for a possible appointment to the Second Circuit. It seems to me that, for Weinstein, he was fortunate for the missed opportunity. As an appellate judge, he could not have had as extensive an impact on the law. And the job would not have been a good fight for his people-person personality.
I shared my theory with Weinstein, saying that the Second Circuit "would have been the worst thing that could have happened to him." "I've concluded that myself," he responded, without a moment of hesitation.
"Seeing the kind of casting that the law does in bringing these cases before me can't be duplicated any place," Weinstein said with a smile. "I think it's the best job in the world." |
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[Elizabeth Vandenberg, a student at University of Iowa College of Law, assisted with this article.] |
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