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Jack Weinstein, judge with an activist streak, is dead at 99

Among the hundreds of federal judges around the nation, Judge Weinstein was one of the best known, both for his bold jurisprudence and for his outsize personality.
Among the hundreds of federal judges around the nation, Judge Weinstein was one of the best known, both for his bold jurisprudence and for his outsize personality.Bebeto Matthews/Associated Press

Jack Weinstein, a legal scholar and famously independent federal judge in New York City who led the legal system into an era of mass tort litigation, changing the way huge classes of people claiming injuries from toxins, pollutants, and faulty products could get redress in the courts, died Tuesday at his home in Great Neck, N.Y. He was 99.

His death was confirmed by his wife, Susan Berk.

Among the hundreds of federal judges around the nation, Judge Weinstein was one of the best known, both for his bold jurisprudence and for his outsize personality.

He was the personification of the activist judge, defying decades of increasingly conservative influence in the federal judiciary. He said he would rather be reversed by an appellate court than risk compromising individual rights. He assailed and circumvented federal sentencing guidelines. He carried out his own war on the war on drugs and, as a senior judge, refused to handle most drug prosecutions. He described himself in a 1993 memorandum to his colleagues as “a tired old judge who has temporarily filled his quota of remorselessness.”

Judge Weinstein was on the bench for 53 years and spent nearly a decade as the chief judge of the Eastern District of New York. And throughout, until he announced his retirement last year at the age of 98, he kept protesting the strictures of the criminal justice system.

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In a stinging 2018 decision, in which he refused to dismiss a lawsuit against New York City police officers, he asserted that the US Supreme Court had gone too far in protecting law enforcement personnel. The court’s recent rulings, he wrote, meant that “many individuals who suffer a constitutional deprivation will no longer have redress.”

Judge Weinstein was most noted for his sway over entire industries as courts were increasingly confronted by product liability claims affecting thousands of people. He engineered mechanisms to distribute damages in sprawling, complex lawsuits; he also sometimes fashioned the lawsuits himself, consolidating as many cases and corralling as many parties as he could in his courtroom.

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Judge Weinstein heard many claims that plaintiffs’ lawyers acknowledged would have been dismissed by other judges — cases that defense lawyers said lacked scientific support.

Probably his best-known case was the class action over Agent Orange, the herbicide that was used by the US military as a defoliant during the Vietnam War and that was blamed for birth defects, cancer, and other ailments among Vietnam veterans as well as Vietnamese civilians. Judge Weinstein took on the litigation in 1983 and designed a single fund for claims against the manufacturers.

He later handled mammoth lawsuits against manufacturers of asbestos and the anti-miscarriage drug DES (diethylstilbestrol) and, with less success, against the handgun and tobacco industries.

Judge Weinstein was revered, feared, and disparaged, sometimes in the same sentence. “In many of these cases, it seems to me you are something of a benevolent despot,” Peter Schuck, a Yale Law School professor who wrote a book on the Agent Orange case, told Judge Weinstein at a symposium in his honor in 2001. “Now, if we are going to have a despot, I would just as soon he or she be benevolent, and you certainly are. But it is a despotism nonetheless.”

Among friends, colleagues, and former law clerks, however, Judge Weinstein was equally famous for his compassion. In one tribute, Associate Justice Stephen Breyer of the Supreme Court noted in a 1997 Columbia Law Review article that Judge Weinstein had established a fund for legal fees and other assistance for the indigent. The money came from his book royalties.

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Judge Weinstein, in his chambers with his associates Marc Falkoff and Eileen Levine in New York.
Judge Weinstein, in his chambers with his associates Marc Falkoff and Eileen Levine in New York.G. PAUL BURNETT/NYT

As a scholar and law professor of expansive intellect before his appointment to the bench, Judge Weinstein wrote the book — several books, actually — on New York civil procedure and the federal rules of evidence. His multivolume treatises “New York Civil Practice” and “Weinstein’s Federal Evidence” are law library standards.

He wrote several more books and dozens of law review articles on legal ethics, judicial administration, civil procedure, torts, and the role of scientific evidence in court. He maintained a nearly full docket well into his 90s, reporting to the courthouse at Cadman Plaza in Brooklyn after a predawn workout.

On stepping down from the bench, Judge Weinstein acknowledged the conservative tide that he had resisted, but he affirmed his faith in the judiciary. “I’m convinced our country is bound to equalize, democratize and to save with love, not hate,” he said in an interview with The New York Times.

Asked about his post-retirement plans, he said that, having taken an interest in the Jim Crow era in the American South, he would like to study for a master’s degree in history.

Jack Bertrand Weinstein was born Aug. 10, 1921, in Wichita, Kan., and grew up in Brooklyn, the son of Harry and Bessie (Brodach) Weinstein. His father was a sales manager, his mother an actress. He displayed a theatrical streak early; he was a child actor, briefly playing one of the Dead End Kids on Broadway.

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He graduated from Brooklyn College in 1943, by which time his resume included a day job on the Brooklyn docks. He then served in World War II as a Navy lieutenant in the Pacific. After returning in 1945, he married Evelyn Horowitz, his college sweetheart, and started law school at Columbia. He graduated in 1948.

He clerked for Judge Stanley Fuld of the Court of Appeals of New York, the state’s highest court, and after two years of private practice, he began teaching at Columbia. (Among his students was Ruth Bader Ginsburg, who at a 2015 event approvingly referred to him as “indomitable.”)

Judge Weinstein was the Nassau County attorney on Long Island while he was teaching at Columbia and living in the county, where he and his wife, a psychiatric social worker, were raising their three sons. Evelyn Weinstein died in 2012.

In addition to Berk, whom he married in 2014, Judge Weinstein leaves three sons, Seth, Michael, and Howard; two stepchildren, Ronnie Rosenberg and Stephanie Berlin; two grandchildren; and four stepgrandchildren.

President Johnson in 1967 named Judge Weinstein to the bench in the Eastern District, which includes Brooklyn, Queens, Staten Island, and Long Island.

Judge Weinstein soon confronted the complex product liability cases that by the 1970s were growing to a nearly impossible scale. He first dealt with industrywide liability in a 1972 case involving children injured by blasting caps; he ruled that all manufacturers could be held liable, even though it was impossible to identify which manufacturers’ caps had exploded.

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Assigned by a federal judicial panel to manage more nationwide litigation, Judge Weinstein would establish his expertise in consolidating and organizing claims by the hundreds, and sometimes thousands, against manufacturers, and then finding novel — some said extralegal — mechanisms for compensation.

In the Agent Orange litigation, he inherited more than 600 cases around the nation involving more than 2 million veterans. He quickly applied his stamp. When many legal experts argued that the issue belonged in Congress, not in court, Judge Weinstein said pointedly that Congress had done nothing to address the veterans’ health problems.

Two Vietnam War veterans, Bobby Sutton (left) and Louis Huffman, spoke outside federal court in Brooklyn as Judge Jack Weinstein presided over a class-action suit by veterans who had been sickened by the military's use of the herbicide Agent Orange during the war.
Two Vietnam War veterans, Bobby Sutton (left) and Louis Huffman, spoke outside federal court in Brooklyn as Judge Jack Weinstein presided over a class-action suit by veterans who had been sickened by the military's use of the herbicide Agent Orange during the war.CHESTER HIGGINS JR./NYT

He set up hearings in five cities and personally heard testimony from more than 1,000 class members in the suit. Convinced that the veterans risked losing at trial, he twisted arms for a settlement to guarantee some money for them. They were ultimately awarded $180 million.

To administer the thousands of claims, he appointed a special master, a move that would later become common in complex cases.

While trial court judges are rarely known outside their districts, Judge Weinstein’s rulings and writings have been debated for decades in classrooms, at academic symposiums, and by law reviews. Most commentators celebrated his innovative handling of mass tort cases, although they recognized the limits that Judge Weinstein had encountered in an increasingly cautious environment.

Two of his mass tort cases, involving the handgun and tobacco industries, were stymied. He had approved a lawsuit that accused handgun manufacturers of negligently allowing illegal gun traffic, and in 1999 a jury found nine manufacturers liable. But the verdict was overturned for lack of evidence of a direct connection between the manufacturers and the shootings cited by the plaintiffs.

Judge Weinstein’s decision in the tobacco litigation, in 2002, would have leapfrogged hundreds of lawsuits in courts around the nation with a single trial to determine whether cigarette manufacturers should be assessed punitive damages. In May 2005, the Second US Circuit Court of Appeals rejected the plan, finding flaws in the composition of the plaintiff class — all Americans suffering from smoking-related ailments and their survivors — and citing the difficulty of maintaining a single fund to compensate victims without more specific evidence of individual injuries.

Judge Weinstein was often called “Reversible Jack,” but in tort cases, he could craft decisions that would be hard for an appeals court to dismember, even going so far as to establish de facto agencies to administer his rulings. And because so many of these cases were settled rather than taken to trial, how appeals courts would have addressed his decisions would never be known.

Some critics said his jurisprudence submerged individual interests in broader social goals. Reviewing Judge Weinstein’s book “Individual Justice in Mass Tort Litigation” (1995), Charles Kimmett wrote in The Yale Law Journal that the judge’s “communitarian ethic” and his calls for legislative solutions, such as insurance mechanisms and aid for defined groups of victims, would necessarily expand the very institutional powers that he regarded with suspicion.

Still, Judge Weinstein often said that the individual before the courts was their highest responsibility, a concern he made obvious in criminal cases. As a senior judge concerned about wrongful detentions and other abuses of defendants’ rights, he took on nearly 500 backlogged habeas corpus cases — and read them all. When sentencing criminal defendants, he sat at a table with them instead of looking down from a bench. In court, he almost always wore a business suit instead of robes.

Judge Weinstein viewed federal sentencing guidelines as a betrayal of the moral imperative that the punishment should fit the crime. When he took senior status and could refuse cases, he stopped hearing minor drug cases.

“I have become increasingly despondent over the cruelties and self-defeating character of our war on drugs,” he wrote in a Times opinion essay in 1993, noting that 60 percent of federal prison inmates were drug offenders.

Judge Weinstein held lawyers to exacting standards, his authority reinforced by his imposing height and his thick, even terrifying, eyebrows. And he closely watched those before him.

In the Agent Orange case, he dispensed with the plaintiff’s lawyers’ contingency fees and reviewed their bills, chastising two of them for, among other things, submitting hotel bills for a weekend at the Helmsley Palace in Manhattan when their time sheets showed that they had finished their work Friday.

Burt Neuborne, a law professor at New York University, told of his first case before Judge Weinstein, representing parents of pupils who had been expelled from city schools for truancy. After fruitless negotiations with district officials, Neuborne said, he filed a motion for an injunction late one afternoon. That evening, Judge Weinstein called him at home. “How dare you wait so long to get these kids back in school,” he scolded.

Judge Weinstein’s view of his profession was complicated. “One of the great resources of our nation is the legal profession,” he said at a symposium in his honor in 2001, 53 years after he joined the bar. “It is entrepreneurial. It is selfish. It is sometimes stupid. It has all kinds of conflicts of interest. And yet it is independent, fighting for individuals against institutions.”