Weinstein won't comment -- not until he's through reviewing post-trial motions in April. Next January, he's slated to hear a Blue Cross and Blue Shield lawsuit accusing Big Tobacco of suppressing information about smoking's health hazards. In a general sense, he mentions other social issues that one day could trigger mass torts, among them affirmative action and the repeal of remediation at cuny. Somewhere out there is a case or two that could expand collective liability even further -- protecting the individual from the unknown and uncontrollable. Maybe he'll get to them before God forces him off the bench.
In a 1997 issue of the Columbia Law Review paying tribute to Weinstein's legacy, University of Pennsylvania law professor Stephen Burbank wrote about the dangers of the judge's independent tactics. "The good news and the bad news is that Jack Weinstein is unique," Burbank tells me. "The question is whether the system could tolerate too many Jack Weinsteins." Weinstein wrote Burbank a warm letter, actually thanking him for taking the time to write about him.
"After a while," Weinstein explains, "if you've spared enough of your brains and other facilities, you can direct yourself to the professional role without the ego aspect of it. It's one of the advantages, I think, of the federal judicial position. At some point -- we hope earlier better than later -- you just don't care about anything but trying to do your professional duty. It's a kind of stoic philosophy."
It's also a declaration of judicial independence -- a resolution to interpret law with more sympathy for the public than for precedent.
"Agent Orange was the first of those cases, but it's not the last of them," the judge says matter-of-factly -- even serenely. "These problems exist, and if Congress took care of them or the states took care of them by legislation, we wouldn't have to."