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High Caliber Justice


Federal trial judges are paid to be lonely. Appointed for life, they hear cases and make rulings, only to be second-guessed by appellate panels they don't get to confront. Quite often, hamstrung by precedents and sentencing guidelines, they're more machines than mediators. A few, though, push for independence: They micromanage trials with an eye to testing new legal interpretations; they consolidate scores of cases and push for out-of-court settlements before higher courts can touch them; they write voluminous opinions and even books on why and how the law should evolve. When judges today try any of these moves, they're working from the playbook of Jack B. Weinstein.

Weinstein's formative experiences -- a Depression-era youth, service in World War II, the shock of first learning about the Holocaust -- reflect those of a whole generation of liberal jurists who are currently dying off. But as the bench's most daring overseer of mass-tort litigation -- where hundreds, sometimes millions, of complainants go after a single big defendant -- Weinstein has done more than any other to bring justice to large groups of people. In the eighties, he wrangled thousands of festering claims against the government by Agent Orange victims into one megacase and brokered an unprecedented $180 million settlement that was virtually appealproof. It also set the stage for every class-action suit since -- from the Exxon Valdez to tobacco.

Weinstein doesn't always come out against business: In breast-implant and repetitive-stress-injury cases, he blocked some long-shot claims against manufacturers. But in huge class actions involving asbestos and DES (the anti-miscarriage drug that was found to cause birth defects),
Weinstein has extracted cash awards in cases he grouped together himself, all in the service of fulfilling what he calls a "communitarian" purpose.

His innovations have inspired awe in some court watchers -- Alan Dershowitz has called him "the most important federal judge in the last quarter-century" -- and exasperation in others. "He's very crafty and very shrewd in the sense of appellate-court review," says Yale law professor Peter Schuck, whose book Agent Orange on Trial describes how Weinstein would call any controversial opinion "preliminary" or "provisional" to keep his theories afloat. "I would worry more about some of his judicial techniques if applied by less talented and scrupulous judges."

The judge gets much of his press from his preference for dishing out compassionate sentences that consider criminals' impoverished backgrounds and family situations. Until recently, he used his seniority to take himself out of the rotation completely for drug trials, refusing to hear cases where Congress's war on drugs required him to dispense penalties he felt were too harsh. (He jumped back in after federal judges were given a bit more leeway -- and defense lawyers told him their clients would suffer without him.) "My suspicion is there were a lot of people over the years who were jealous of Judge Weinstein," says Mario Cuomo. "It was just the force of his personality, the force of his strength as a judge, that made him able to deal with a situation in a way that got it publicity."

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