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High Caliber Justice

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In 1961, Weinstein helped his friend and neighbor Eugene Nickerson campaign for Nassau County executive. Two years later, Nickerson hired Weinstein as county attorney. By the mid-sixties, Weinstein had marshaled the reform of the state rules of civil procedure, and he co-wrote the authoritative book on the subject, still known informally to every New York lawyer as Weinstein, Korn & Miller.

During that time, Weinstein and Nickerson met Bobby Kennedy. After a brief flirtation with an attorney-general candidacy (the party ran an upstate candidate instead), Weinstein served as a delegate at the 1967 state constitutional convention. That same year, Kennedy and Republican senator Jacob Javits were in rare agreement on Weinstein's nomination to the Federal District Court.

On the far wall of Weinstein's chambers hangs a framed 1992 letter from Thurgood Marshall in which the Supreme Court justice empathizes with Weinstein's deliberations over assuming "senior status" in the Eastern District. In the fifties, Weinstein had helped edit some of Marshall's briefs in Brown v. Board of Education -- a seminal class-action suit if there ever was one. "I thought he was a great lawyer," Weinstein tells me dispassionately, "not so much in an academic sense but in his ability to get people together to accomplish something useful."

On another wall, the judge points out a framed letter from Bobby Kennedy. "I wrote him a memorandum when he was thinking of running for senator, saying that he could without living here," Weinstein says with a smile. The party's reigning legal scholar managed to stay above the fray -- while remaining well-connected.

Weinstein's oldest son, Seth, a real-estate investor in Connecticut, considers his father less extreme than many legal scholars do. "He's a very conservative person," he says. "He's always very concerned with civil rights, with equality of opportunity, with opening up the system -- but he views those positions as being conservative ones, as being fundamental parts of the American dream. He is willing to look at how to adapt the law not radically but through adaptation. I consider him evolutionary, not revolutionary."

The new judge was drawn to innovation almost right away, first floating the idea of collective liability in 1972: Ruling on Hall v. E. I. Du Pont, a lawsuit involving children who hurt themselves playing with dynamite blasting caps, he said an entire industry could be held liable for not safeguarding its products, even if just one manufacturer made the caps that went off. In 1974, when he circuitously desegregated Coney Island's Mark Twain Junior High by converting it into a magnet school, he started to formulate notions of negligence that would come into play with Agent Orange. "Benign neglect is as illegal as malign intent," he wrote in that decision. "Both are unconstitutional."

Before long, his political ambition returned. In 1973, he risked giving up his lifetime appointment to run for chief judge of the state court. Friends say Weinstein had his eye on reforming the entire state court system -- finishing the work he had started when he rewrote the state's rules of civil procedure. But Weinstein relied mainly on his reputation, running a quiet, back-porch campaign. His opponent, Jacob Fuchsberg, outspent him, and the judge lost by 755 votes.

Weinstein found other methods of reform soon enough, turning to mass torts full-throttle. "Today, unlike the situation when I was a kid in the twenties, a mistake by a manufacturer can injure hundreds of thousands and millions of people," he tells me. "So in the Agent Orange cases and these other cases, we've had to devise ways of interpreting the law using procedure -- using concepts to meet needs of our present technology and size."


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