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 United States Court of Appeals for the Second Circuit 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.
Wearing a Suit, Not Robes
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 the judge’s book “Individual Justice in Mass Tort Litigation” (1995), Charles T. Kimmett wrote in The Yale Law Journal that Judge Weinstein’s “communitarian ethic” and his calls for legislative solutions, like 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.
In a 2004 law review article, speaking of “grotesque over-sentencing” required by drug laws, Judge Weinstein wrote that if judges left the bench to avoid enforcing unjust laws, they risked being replaced by “government puppets.” The legal system, he said, could and should accommodate judicial protest.