Jack Weinstein and His Love-Hate Relationship with the Court of Appeals

Abstract

There was a time when Jack Weinstein loved the court of appeals. Note that I do not state the U.S. Court of Appeals for the Second Circuit. Rather, I referred to the New York Court of Appeals, the Empire State's highest court. How do I know that Judge Weinstein loved the New York Court of Appeals? Like another district judge before him-no less than Learned Hand himself-Judge Weinstein ran for the Chief Judgeship of that great court. And he nearly won, losing by only a few votes-755-to Jacob Fuchsberg in 1973, when thatjudgeship was still an elective office. Perhaps because of the Learned Hand precedent, Judge Weinstein received little, if any, public criticism of his running even though he was a sitting federal judge. Nor did he deserve any, for there was no question of conflict since he would have resigned his federal position had he been elected. Similarly, his campaigning was not a problem; he simply ran the proverbial back-porch campaign, relying on his reputation as a scholar, a teacher, and a judge, not on an elaborate television promotion, to count with the voters. The surprise to me was that he came so close to winning, considering that his opponent did indeed spend a considerable sum on self-promotion. The results demonstrated, I think, the scope of Judge Weinstein's tremendous reputation. Over the years I have come to appreciate how well that reputation is deserved. Judge Weinstein was recently introduced at the Second Circuit Judicial Conference by my colleague, former Fordham Law School Dean Joe McLaughlin, as a man who saw an innovation he didn't like. And, in a very real sense, that's true, as this little piece will attempt to establish. But innovations by trial judges do not always meet with resounding success in, although they always present challenges to, appellate courts. Thus, the hate relationship with our court of appeals, which oversees Judge Weinstein's work (at least when asked by a litigating party) yet has not always put its stamp of approval on that work. I hasten to add that-unlike some trial judges of lesser stature-Judge Weinstein has never once griped about his appellate treatment. But, on the other hand, where he has had the opportunity upon remand to express his disagreement with the court of appeal's views on a legal issue or a factual interpretation, he has never been bashful, as we shall see below. It is, of course, in the area of mass tort litigation that Judge Weinstein has been the most concerned, the most thoughtful, may I say the most profound, and certainly the most innovative of trial judges. He has become probably our foremost expert on the subject, looking at it from every vantage point, including that of a judge, but by no means