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Copyright (c) 1997 The Columbia Law Review
Columbia Law Review

November, 1997

97 Colum. L. Rev. 2010

LENGTH: 14952 words

ARTICLE: JUDGE FOR THE SITUATION: JUDGE JACK WEINSTEIN, CREATOR OF TEMPORARY ADMINISTRATIVE AGENCIES

Martha Minow*


 
* Professor, Harvard Law School. Thanks to Elizabeth Schneider and Steve Subrin for conversations about this topic, to Steve Burbank for comments, and to Nina Wang and Laurie Corzett for fine research assistance.

SUMMARY:
  ... In this Article, Professor Minow explores Judge Jack Weinstein's efforts to recast the role of the judge, as problem solver, to the entire situation. ... Professor Minow calls this phenomenon of inclusive resolution creation of the "temporary administrative agency. ... Deserving equal attention are his animating vision, his inventive use of both technical expertise and personal talents, and his resulting exposure to criticism for departure from the usual role of the judge. ... Judge Weinstein's Agent Orange settlement had this effect; Congress responded with a bill to aid veterans affected by exposure to dioxin, and the Veterans' Administration eventually interpreted its mandate to include responding to the needs of these veterans. ... Third, exposure and defense of the boundaries between the branches are necessary for reasoned debate: The initiative of someone like Judge Weinstein can generate public debate and analysis to sharpen understandings of separation of powers, a crucial element of our governmental structure. ... Judge Weinstein's conduct in the Agent Orange settlement has received the most scrutiny, no doubt because Professor Peter Schuck reported on it in a best-selling book. ... In addition, where the settlement resolves a class action, appellate review of the trial judge's requisite approval provides a potential means to check abuse. ...  

TEXT:
 [*2010] 

In this Article, Professor Minow explores Judge Jack Weinstein's efforts to recast the role of the judge, as problem solver, to the entire situation. Through his bold personal transcendence of the traditional role of the judge, Weinstein has attempted to fashion global resolutions to multijurisdictional conflicts like the Agent Orange case and the DES Cases. Bucking the trend to narrow litigation, Judge Weinstein has sought to allow all potentially affected parties a voice in the dispute. Professor Minow calls this phenomenon of inclusive resolution creation of the "temporary administrative agency."

Professor Minow explains that unlike traditional, self-perpetuating administrative agencies, Judge Weinstein's "temporary administrative agencies" - including claims processing facilities, public hearings, appointment of special masters, and consultation with community members and experts - are uniquely temporary and contextually specific. Accordingly, "temporary administrative agencies" deal with specific problems and disappear when those problems are resolved. Professor Minow identifies potential constitutional, institutional, and practical objections to "temporary administrative agencies," but argues that Judge Weinstein's unique combination of intellect, dedication, and humaneness has enabled him to fashion inclusive resolutions to avoid these potential infirmities. According to Professor Minow, though, these objections counsel against general adoption of Judge Weinstein's techniques by perhaps less extraordinary judges. For the same reasons that Louis D. Brandeis's holistic approach to representing clients earned him the title "counsel for the situation," Judge Weinstein often is the "judge for the situation."


 


Introduction
 
Rather like Louis D. Brandeis, Jack Weinstein has placed a personal stamp on the legal profession through his willingness and capacity to respond to the situations before him. n1 Indeed, rather like Brandeis, Weinstein has faced intense criticism for stepping beyond the conventional role of the judge and trying more to solve problems than to pursue the logic of the law. n2 Critics of Brandeis the lawyer argued that he  [*2011]  wrongly departed from the loyalty owed individual clients in order to harmonize interests and pursue a vision of community values in the public interest. n3 Critics of Weinstein the judge charge him with departing from the independence and detachment required of a judge because he seeks settlements to advance a vision of community values in the public interest. n4 Brandeis the lawyer was too much the judge; Weinstein the judge is too much the advocate.
 
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n1. See Clyde Spillenger, Elusive Advocate: Reconsidering Brandeis as People's Lawyer, 105 Yale L.J. 1445, 1502 (1996) (discussing concept attributed to Brandeis of serving as "counsel for the situation").

n2. Compare Alpheus Thomas Mason, Brandeis: A Free Man's Life 465-508 (1946) (describing focus on Brandeis's departure from proper lawyer's role throughout Senate battles over his confirmation as Associate Justice of the United States Supreme Court), with Peter H. Schuck, Agent Orange on Trial: Mass Toxic Disasters in the Courts 241-44, 258-76 (enlarged ed. 1987) (offering criticisms of Jack Weinstein's departure from proper judicial role in Agent Orange case). Alongside criticisms, Schuck's detailed analysis of the Agent Orange case includes many appreciative evaluations of Judge Weinstein's acumen, skill, and capacity for innovation.

n3. See Spillenger, supra note 1, at 1498-1522.

n4. See Schuck, supra note 2, at 143-44, 178-79; see also Stanley E. Cox, Introduction to Case Five: Complex Litigation and Prior Rulings Issues, 29 New Eng. L. Rev. 703, 703 (1995) (criticizing Judge Weinstein's aggressive case management style); John D. Feerick, Disqualification of Judges (The Sarokin Matter): Is It a Threat to Judicial Independence?, 58 Brook. L. Rev. 1063, 1082 (1993) (statement of Professor Monroe H. Freedman) (disagreeing with Judge Weinstein that a priority of a judge should be to send a moral message to the public). Weinstein himself explicitly defends his work by reference to a vision of communitarian values. See Jack B. Weinstein, Ethical Dilemmas in Mass Tort Litigation, 88 Nw. U. L. Rev. 469, 485-93 (1994).
 
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In contrast to these kinds of critiques, I will suggest that Judge Weinstein shares a conception of justice associated with Justice Brandeis, and invests his role with commitment to that conception and extraordinary ability to implement it. Even though specific decisions deserve serious critique and on occasion rejection, Judge Weinstein has made particular situations, the role of the judge, and the American legal system, better than they would have been without him.

Thus, this Article will explore Judge Weinstein's effort to recast the role of the judge to respond, as a problem-solver, to the entire situation. Like Brandeis's conception of "counsel for the situation," Weinstein has repeatedly crafted a role as "judge for the situation," defined broadly enough to move beyond private parties to wider communities. Deserving equal attention are his animating vision, his inventive use of both technical expertise and personal talents, and his resulting exposure to criticism for departure from the usual role of the judge. Judge Weinstein has given the legal profession an example of bold personal transcendence of the professional role. He exemplifies the "public law" judge, n5 and the virtues and troubles posed by that conception of the judicial role. He also has helped to launch a very particular innovation, which I will call here the "temporary administrative agency." Although both Judge Weinstein's general example and his particular innovations deserve critical scrutiny, the legal profession and the larger society are better off because of them.
 
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n5. See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1284 (1976).
 
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I. Getting Hold of the Whole Problem
 
Lawyers and judges are familiar with the narrowing effects of litigation. Pleading rules, pre-trial conferences, and increasingly managerial roles for judges usually point in the direction of reducing the issues for trial and streamlining the dispute before the court. More generally, restating underlying harms into issues ripe for judicial consideration requires transforming open-ended questions about the array of possible social arrangements into yes or no questions about whether particular rules have been violated. n6 A very different approach, and one frequently pursued by Judge Weinstein, uses the powers of the court to expand the lawsuit to encompass more of the actors and institutions involved in a given problem. n7
 
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n6. See Martha Minow, Are Rights Rights for Children?, 1987 Am. B. Found. Res. J. 203, 216-18 (reviewing Robert H. Mnookin, In the Interests of Children: Advocacy, Law Reform, and Public Policy (1985)).

n7. Cf. Michael Polanyi, The Study of Man 29 (1959) ("We cannot comprehend a whole without seeing its parts, but we can see the parts without comprehending the whole.").
 
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The Mark Twain School case presents an example of Judge Weinstein's expansive approach. n8 The plaintiffs argued that the New York City public school system denied equal treatment to poor and nonwhite children because of pervasive racial segregation and unequally distributed resources. Similar lawsuits have been shaped by some courts to narrow in on the school finance scheme, the assignment of students to schools, or the schedule for completing paperwork assessing children's special needs. n9 Yet, as Professor Geoffrey Hazard has commented about the case, a claim of racially discriminatory schools "impinges on a locality's whole social fabric and involves not only complex legal issues but virtually all political, economic, fiscal, psychological, religious, and moral aspects of modern experience." n10
 
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n8. Hart v. Community Sch. Bd., 383 F. Supp. 769 (E.D.N.Y. 1974), aff'd, 512 F.2d 37 (2d Cir. 1975).

n9. Even the landmark case of Brown v. Board of Education, 347 U.S. 483 (1954), resulted from a process of narrowing the plaintiffs' desires for quality education and a nonracist society to a claim for eliminating explicit racial segregation in the public schools. See Richard Kluger, Simple Justice 18, 769-73 (1976); Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 472-73 (1976). This process of restricting the focus of school reform cases reflects not only judicial, but also national, skepticism about the power of courts to produce effective reform. Gary Orfield argues that this narrowing trend in school desegregation cases "reflects a change from the assumption that education can remedy historic racial inequalities to the assumption that it is futile to seek an actual remedy as schools have no power to make outcomes more equal." Gary Orfield, Conservative Activists and the Rush Toward Resegregation, in Educators and Lawyers in the Search for School Improvement (Jay Heubert ed., forthcoming Sept. 1998) (manuscript at 22-23, on file with the Columbia Law Review).

n10. Geoffrey C. Hazard, Jr., Reflections on Judge Weinstein's Ethical Dilemmas in Mass Tort Litigation, 88 Nw. U. L. Rev. 569, 573 (1994).
 
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Reflecting this kind of commitment to grasp the whole problem, Judge Weinstein ultimately involved, or tried to involve, not only parents and school officials in the Mark Twain School litigation, but also the teachers' union, parents' associations, religious leaders, and other community leaders; experts in law, education, housing, and organizational change; city, state, and federal housing authorities; and the city's police commissioner, the Metropolitan Transit Authority, and the Parks Department. n11 Judge Weinstein appointed a court officer, a special master, and entrusted him with the task of establishing a process of consultation and developing a plan for community redevelopment. n12
 
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n11. See Hart v. Community Sch. Bd., 383 F. Supp. 699, 756-58 (E.D.N.Y.), supplemented by 383 F. Supp. 769 (E.D.N.Y. 1974), and aff'd, 512 F.2d 37 (2d Cir. 1975). For discussions of the case, see generally Curtis J. Berger, Away from the Court House and Into the Field: The Odyssey of a Special Master, 78 Colum. L. Rev. 707 (1978) (reflections by the special master in the case); Susan P. Sturm, A Normative Theory of Public Law Remedies, 79 Geo. L.J. 1355 (1991) (discussing public law remedies).

n12. See Hart, 383 F. Supp. at 767-68 (supplemental opinion); Berger, supra note 11, at 710.
 
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Although Judge Weinstein decided not to issue the special master's community redevelopment plan as a court order, he exhorted the third parties to follow the plan and required them to submit monthly progress reports. n13 The reviewing appellate court directed dismissal of all proceedings against the third parties. n14 Curtis Berger, who served as the special master, later explained his initial disappointment and anger with the result, but also concluded that the process of community-wide consultation and planning set in motion by Judge Weinstein produced concrete, desirable changes in public education. n15 Judge Weinstein concluded that court orders alone would not be effective in producing the comprehensive reforms needed in the community, but nonetheless used the powers of the court to involve actors and institutions throughout the community in a process of change.
 
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n13. See Hart, 383 F. Supp. at 775; Berger, supra note 11, at 733-37.

n14. See Hart, 512 F.2d at 55-56.

n15. See Berger, supra note 11, at 733-37.
 
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Judge Weinstein's conduct in the Agent Orange litigation provides another example of his commitment to embrace the whole situation rather than use litigation to narrow the issues. n16 This litigation, a consolidation of more than 600 cases, alleged that Vietnam veterans and their family members wrongfully suffered injuries due to exposure to a chemical substance produced by companies under contract to the United States and used in conducting the war. n17 Judge Weinstein took over the case from another judge, and quickly adopted a commitment to a wide lens and inclusive party structure for the case - a sharp departure from the approach taken by the judge previously assigned to the case. Judge  [*2014]  Weinstein sought to keep the United States government as a party in the case, involve more defendants, and include within the scope of the suit all potential claimants, including children not yet born. n18 The case ultimately involved approval of a class action despite difficulties identifying all of the individual plaintiffs. n19 It ended with a monetary settlement, approved by Judge Weinstein and affirmed by the Court of Appeals for the Second Circuit, which established a structure for processing the claims of individual plaintiffs. n20
 
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n16. In re "Agent Orange" Prod. Liab. Litig., 506 F. Supp. 737 (E.D.N.Y. 1979), rev'd, 635 F. 2d 987 (2d Cir. 1980).

n17. See id. at 746.

n18. See Schuck, supra note 2, at 118, 126, 165, 187-89.

n19. See id. at 188.

n20. See In re "Agent Orange" Prod. Liab. Litig., 611 F. Supp. 1396 (E.D.N.Y. 1985) (approving settlement distribution plan), aff'd in part and rev'd in part, 818 F.2d 179 (2d Cir. 1987) (affirming part of distribution plan permitting awards to veterans despite inconclusive proof that death or disability resulted from exposure to Agent Orange, but setting aside portion of plan designed to establish a foundation to fund projects for the entire class), on remand, 689 F. Supp. 1250 (E.D.N.Y. 1988) (approving settlement and permitting claimants who originally opted out an opportunity to claim benefits); Schuck, supra note 2, at 220, 312-13.
 
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Especially in complex tort cases, Judge Weinstein has repeatedly structured suits as efforts to achieve "total peace," and therefore approved plans to include potential future claims. n21 Indeed, he has been described as "the leading judicial advocate of global resolution." n22 In complex tort cases, civil rights cases, and other contexts, Judge Weinstein's search for global resolutions has involved six distinctive elements: (1) he has sought prospective as well as compensatory solutions; (2) he has permitted the involvement of multiple parties and tried to keep seemingly marginal parties in the suits; (3) he has included potential reforms of political and economic systems within the ambit of analysis in individual cases; (4) he has managed cases actively; (5) he has appointed additional court officers and given them unusual powers not only to find facts, but also to hold meetings and devise plans for the future treatment of the problems behind the suits; and (6) he and his court-appointed officers have used community-wide hearings and other such devices to promote extensive debate and participation in deliberating the issues at hand.
 
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n21. See Civil Litigation in the Twenty-First Century: A Panel Discussion, 59 Brook. L. Rev. 1199, 1207 (1993) [hereinafter Panel Discussion] (comments of Kenneth R. Feinberg).

n22. Martin H. Redish & Eric J. Beste, Personal Jurisdiction and the Global Resolution of Mass Tort Litigation: Defining the Constitutional Boundaries, 28 U.C. Davis L. Rev. 917, 933 n.61 (1995).
 
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These six elements happen to be the emblems of "public law" judging, as described by Abram Chayes and Owen Fiss. n23 Basic to all of the elements is the commitment to use the court to try to connect all of the people and institutions relevant to a problem. The resolution of the case, in this approach, depends on a process of framing a solution with the  [*2015]  participation of the broad range of affected individuals and representatives of relevant institutions. n24
 
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n23. See Chayes, supra note 5, at 1284; Owen M. Fiss, The Social and Political Foundations of Adjudication, 6 Law & Hum. Behav. 121, 124-25 (1982).

n24. For an argument that courts have always engaged in "extraordinary" efforts to provide a flexible forum for airing social grievances, see, e.g., Theodore Eisenberg & Stephen C. Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 Harv. L. Rev. 465 (1980).
 
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Judge Weinstein's underlying vision conceives of the judiciary as an institution primarily connected with, and obliged to serve, the larger community. "We are public servants pledged to do justice," Judge Weinstein once explained, "not exalted elites who bless the masses with such bites of judicial time as we deign to dole out." n25 In this vision, justice is the touchstone and a concern for everyone, not just the named parties. Justice requires attention to whole situations, not just to neatly parsed, pristine legal issues. Even those who share this vision may be skeptical that a federal court has the tools to pursue total justice, much less to engage in that pursuit through a participatory process involving large numbers of individuals and groups. Judge Weinstein's techniques of innovation, thus, deserve attention not only in their own terms, but as tentative means to pursue his ambitious vision.
 
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n25. Stephen N. Subrin, Fireworks on the 50th Anniversary of the Federal Rules of Civil Procedure, 73 Judicature 4, 6 (1989-1990) (quoting Jack B. Weinstein, After Fifty years of the Federal Rules of Civil Procedure, Are the Barriers to Justice Being Raised? Remarks at the Conference on the 50th Anniversary of the Federal Rules of Civil Procedure (Oct. 7-8, 1988)).
 
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II. Inventive Procedural Techniques
 
To maintain the involvement of a broad range of individuals and institutions in particular lawsuits, Judge Weinstein has devised creative rulings on a range of technical procedural issues, including personal jurisdiction, choice of law, and class action certification. These individual rulings show erudition and a willingness to stretch, if not defy, existing rules; they also reflect Judge Weinstein's larger vision of global resolution and total peace. Unlike a nineteenth-century doctrine directing courts to dismiss a case lacking perfect party structure, n26 Judge Weinstein's inclusive approach is aspirational and proceeds even when imperfectly achieved. His gifts of persuasion and pressure reflect not only personal traits, but also a strategy for producing inclusive results. His court's actions often set in motion the equivalent of a temporary administrative agency, and the technical rulings necessary to accomplish this act of creation underscore Judge Weinstein's brilliance, creativity, and audacity.
 
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n26. See generally Geoffrey C. Hazard, Jr., Indispensable Party: The Historical Origin of a Procedural Phantom, 61 Colum. L. Rev. 1254 (1961) (discussing and analyzing how equity courts traditionally struggled with which parties should be present in a lawsuit and with what the absence of certain parties would mean).
 
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A. Technical Rulings
 
Judge Weinstein's technical rulings often depart from the common practice of courts to use procedural rules to sift, narrow, curb, or avoid altogether the lawsuits brought before them. In In re DES Cases he proposed to modify the rules of personal jurisdiction in a case alleging a mass tort. n27 In the 1940s, many companies across the country developed and tested the substance diethylstilbestrol (DES). During the 1950s and 1960s, with national advertising, sales, and promotion by local doctors, DES became a standard drug treatment for miscarriages. Yet, many of the offspring of women who ingested the drug claimed that they suffered injuries. They alleged that fetal exposure to DES in utero created increased risks of cancer, deformities, ectopic pregnancies, sterility, and genetic changes causing those risks to be passed on to the next generation. n28 Judge Weinstein reasoned that the "technology, marketing, sociology, and possible ill effects of DES knew no state boundaries." n29 The big picture, he maintained, called for recognizing the common economic pond in the United States rather than treating conduct within any of the fifty states as entirely distinct for the purposes of establishing personal jurisdiction in another state. n30 Conceding that the defendants lacked territorial connections with the forum state, and that prevailing views of fairness would deem the exercise of personal jurisdiction beyond acceptability, Judge Weinstein proposed an alternative inquiry into whether the state has appreciable interests in the litigation. n31 He further proposed that such a state interest should be presumed, and rebutted only if the defendant could demonstrate relatively substantial hardship from having to defend in that jurisdiction. n32 Such an approach would not only allow the Eastern District of New York to retain cases that otherwise would have to be dismissed; it would also allow any given court to retain the involvement of seemingly remote defendants in order to attain global resolution.
 
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n27. 789 F. Supp. 552 (E.D.N.Y. 1992).

n28. See id. at 558.

n29. Id.

n30. See id. at 576.

n31. See id. at 587.

n32. See id. at 588-89.
 
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For similar reasons, Judge Weinstein experimented with innovative choice-of-law rules in the Agent Orange case. n33 There, no single trial could proceed with all of the plaintiffs and defendants if the laws of different states and nations had to apply to each particular claim, based on the plaintiffs' and defendants' locations and contacts. Moreover, a strange kind of unfairness would ensue if soldiers who had received the same exposure to Agent Orange, with the same injuries, were to obtain different court judgments based on the happenstance of their home states.
 
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n33. See In re "Agent Orange" Prod. Liab. Litig., 580 F. Supp. 690, 708 (E.D.N.Y. 1984).
 
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Judge Pratt, who first presided over the case, concluded that federal common law should apply, and thus permitted a unified trial, n34 but the court of appeals reversed in an interlocutory appeal. n35 Judge Weinstein was left with the apparent morass posed by more than 600 consolidated cases involving multiple state and national laws applicable to 2.4 million veterans, their families (including children not-yet born), and soldiers from Australia and New Zealand. n36 Yet, in the words of Professor Peter Schuck, Judge Weinstein waved a "magic wand" and "vaporized the choice-of-law problem" by declaring that any state court would look to a "national consensus law" on manufacturers' liability, relevant defenses, and damages. n37 Thus, Judge Weinstein reasoned that his federal court must do the same. n38 Weinstein's magic combined attention to the federal interest in the case with a tour-de-force analysis of all competing schools of thought in the choice-of-law field. n39 He treated his own announcement of national consensus law as a provisional ruling to guide the parties' thinking. He thus insulated his reasoning from further appellate review pending the case's denouement. n40 Keep everyone in one lawsuit, and get the suit going - these are the watchwords behind Judge Weinstein's magic.
 
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n34. See In re "Agent Orange" Prod. Liab. Litig., 506 F. Supp. 737, 749 (E.D.N.Y. 1979), rev'd, 635 F.2d 987 (2d Cir. 1980); Schuck, supra note 2, at 57.

n35. See Agent Orange, 635 F.2d at 995; Schuck, supra note 2, at 66.

n36. See Schuck, supra note 2, at 4-5

n37. Id. at 128.

n38. See id.

n39. See In re "Agent Orange" Prod. Liab. Litig., 580 F. Supp. 690, 693-99 (E.D.N.Y. 1984); In re "Agent Orange" Prod. Liab. Litig., 100 F.R.D. 718, 724 (E.D.N.Y. 1983).

n40. See Schuck, supra note 2, at 128-31.
 
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A generous approach to party structure is another crucial procedural step toward global resolution of cases. In the Mark Twain School case, Judge Weinstein sought formal or informal involvement of representatives of almost all sectors of the community. n41 In other cases, Judge Weinstein innovated the broad use of class actions in mass torts. For example, after Judge Weinstein indicated his support for nationwide class action treatment of asbestos litigation, n42 other judges held off ruling in asbestos cases until an unprecedented joint order established a national, multi-court cooperative plan to manage suits filed all over the country. n43 In the Agent Orange litigation, Judge Weinstein did more than just approve certification of a class despite many divergent factual circumstances in the underlying claims, and despite almost insuperable obstacles to eff-  [*2018]  ective notification of affected individuals. n44 He also devised a technique to keep in the same suit individuals who might have preferred to opt out of the class, and who technically had such an option. n45
 
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n41. See supra text accompanying note 11.

n42. See In re Joint E. & S. Dists. Asbestos Litig., 129 B.R. 710, 877 (E.D.N.Y., S.D.N.Y., & Bankr. S.D.N.Y. 1991), vacated by 982 F.2d 721 (2d Cir. 1992), modified by 993 F.2d 7 (2d Cir. 1993).

n43. See Linda S. Mullenix, Beyond Consolidation: Postaggregative Procedure in Asbestos Mass Tort Litigation, 32 Wm. & Mary L. Rev. 475, 484-85 (1991); Stephen Labaton, The Bitter Fight Over the Manville Trust, N.Y. Times, July 8, 1990, 3, at 1.

n44. See Schuck, supra note 2, at 126-27. The bulk of the case involved certification of a Rule 23(b)(3) class, which required individualized, actual notice for all claimants who could be identified through reasonable effort, to ensure opportunities to opt out of the class action suit and bring individual suits. See id. The Supreme Court recently rejected certification for settlement purposes of a class of persons exposed to asbestos, or spouses or household members of such persons. See Amchem Prods., Inc. v. Windsor, 117 S. Ct. 2231, 2237 (1997).

n45. See John C. Coffee, Jr., Rethinking the Class Action: A Policy Primer on Reform, 62 Ind. L.J. 625, 661-63 & n.86 (1987). Professor Coffee criticized Judge Weinstein's decision permitting applications to opt out of the class precisely when the lawyers gained access to multidistrict litigation discovery materials. Individual attorneys are least able to invest in the action at that stage, and thus least able to opt out of the class suit. Judge Weinstein's ultimate treatment of the individuals who did opt out of the Agent Orange settlement seems like a kind of punishment for exercise of their opt-out right: He dismissed the cases after deeming irrelevant or unavailing the evidence proffered to support the theory that the plaintiffs' conditions were caused by exposure to the defendants' products. See Schuck, supra note 2, at 226-44. The appellate court and other observers have expressed disagreement and even dismay at his treatment of the opt-out claims. See id. at 232, 301. Yet, Judge Weinstein's evidentiary rulings here also "signaled a new era" in judicial attitudes about evidence relevant in mass tort cases. See Anthony Z. Roisman, Conflict Resolution in the Courts: The Role of Science, 15 Cardozo L. Rev. 1945, 1947 (1994). For example, Judge Weinstein found animal studies less than illuminating given the differences in human and animal physiology, and instead called for epidemiological studies. See id.
 
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B. The Personal as Powerful
 
No small measure of Judge Weinstein's innovative success depends on his personal powers and techniques. Most obvious is his stance as an active judge. n46 A litigant in Judge Weinstein's court must expect the judge to take initiative in shaping the suit, to establish strict and quick time lines for the litigation, to explore innovative substantive norms, to appoint masters, to work with magistrates, and to devise expert panels to move discovery, pre-trial scheduling, and fact-finding along, while promoting settlement throughout the process. Judge Weinstein communicates enormous energy and humaneness, along with confidence that difficulties can be tackled successfully. n47 He also knows how to pressure, cajole, and make believable threats in order to push lawyers to act despite continual requests for delay.
 
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n46. Another description might be "managerial judge." See Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 374, 376-77 (1982).

n47. See Schuck, supra note 2, at 117.
 
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A particular personal technique perfected by Judge Weinstein could be used even by individuals whose personalities do not resemble his buoyancy and spirit: Judge Weinstein has been known to act "as if he were dealing not with a case at law, but rather with a political problem that required a political solution transcending the legal conflict between  [*2019]  plaintiffs and defendants." n48 To do so, he has introduced, or emphasized, uncertainty about the legal and factual issues in order to encourage the parties to settle, n49 while also often involving broader sectors of the community in hearings on the fairness of proposed settlements, or potential plans for community change. n50 These strategies at times make the judge himself seem more threatening and unpredictable to the parties than the opposing parties seem to each other, while at other times they make the judge seem like a person who understands how much people want to participate and be heard.
 
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n48. Joseph H. Sommer, Note, Transformative Torts, 97 Yale L.J. 645, 647 (1988).

n49. See id.

n50. See Susan P. Sturm, A Normative Theory of Public Law Remedies, 79 Geo. L.J. 1355, 1372-73 (1991) (describing Weinstein's directive that the special master appointed in Hart v. Community School Board solicit views of community groups and housing agency staff about potential community redevelopment).
 
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C. Creator of Temporary Administrative Agencies
 
It is easy to conclude that the courts are not equipped to hold trials that involve complex litigation once the trials are framed to deal with whole problems that involve massive numbers of individuals, institutions, and groups. n51 Judge Weinstein's bold conduct in complex cases ex-  [*2020]  presses a very different attitude. n52 Yet, even Judge Weinstein did not seem to look forward to the prospect of actually proceeding to trial in a case like Agent Orange. Instead, he pressed for settlement, and a settlement that created a system for processing individual claims. In this way, he steered the settlement toward the model of judicially supervised structures for processing individual claims which he and other judges have used in other mass tort cases, n53 and even in civil rights cases. n54
 
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n51. See Donald L. Horowitz, The Courts and Social Policy 22-23 (1977) (arguing that adjudication is ill suited for resolution of "major issues of social policy" due to its individualistic nature and the need to justify decisions by reason); Robert F. Nagel, Separation of Powers and the Scope of Federal Equitable Remedies, 30 Stan. L. Rev. 661, 706-12 (1978) (arguing that courts should withhold relief in "complicated matters of broad impact" until the "relevant state institutions [have] had an opportunity to act"); David L. Shapiro, Courts, Legislatures, and Paternalism, 74 Va. L. Rev. 519, 551-55 (1988) (remedial powers of the courts are circumscribed by limited resources and by doctrine and precedent); Sommer, supra note 48, at 645 (discussing mass disasters that result in tort suits of such magnitude "that they strain the limits of adjudication"). Lon Fuller's classic work, The Forms and Limits of Adjudication, offers the basic argument for this conclusion. Lon L. Fuller, The Forms And Limits of Adjudication, 92 Harv. L. Rev. 353 (1978). According to Fuller, the judge must stand in contrast to an arbiter. See id. at 357-58. The judge must only determine cases brought to the court and not initiate action or conduct his own factual inquiries; the judge's decision must be retrospective and not prospective, like legislation; the judge must reach a decision based on grounds argued by the parties; the judge must not be preoccupied with reaching a result acceptable to the parties; and the courts should stay away from tasks that are "polycentric" and require managerial or contractual solutions. See id. at 385, 388, 391, 393, 394-96, 404. Recent scholars have disputed whether complex tort cases actually present challenges of a significantly new order to the process of adjudication. See, e.g., Linda S. Mullenix, Mass Tort as Public Law Litigation: Paradigm Misplaced, 88 Nw. U. L. Rev. 579, 581 (1994) ("The essential mass tort case is nothing more or less than an injured plaintiff, represented by a personal-injury, contingency-fee lawyer, suing the product's manufacturer."); John A. Siliciano, Mass Torts and the Rhetoric of Crisis, 80 Cornell L. Rev. 990, 991 (1995) (arguing that mass tort litigation presents "few interesting or novel questions of doctrine" and that the problems attributed to the size of such cases are not unique).

n52. For example, the certification of the class action in the Agent Orange case marked the first certification of a class in a mass toxic tort case to survive appellate review. See Schuck, supra note 2, at 7.

n53. See, e.g., In re DES Cases, 789 F. Supp. 552 (E.D.N.Y. 1992) (settlement establishing claims process). The model has since been followed elsewhere. See, e.g., In re Silicone Gel Breast Implants Prods. Liab. Litig., No. CV92-P-10000-S, Civ. A. No. CV94-P-11558-S, MDL No. 926, 1994 WL 578353 (N.D. Ala. Sept. 1, 1994) (class action settlement of breast implant liability).

n54. A prime example of the model in the civil rights context is Halderman v. Penhurst State Sch. & Hosp., 446 F. Supp. 1295 (E.D. Pa. 1977) (class action suit brought on behalf of mentally retarded residents of state-operated institution seeking damages and equitable relief for violation of statutory and constitutional rights), aff'd in part, rev'd in part, 612 F.2d 84, rev'd, 451 U.S. 1 (1981).
 
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Functionally, court-supervised settlements that establish systems for processing individual claims create temporary administrative agencies without proceeding through the legislative or executive branches. Even without the establishment of such claims facilities, judicial supervision of complex suits resembles administrative agency activity, especially in the use of masters and magistrates authorized to conduct fact-finding hearings, to manage parts of disputes, and to gather expert knowledge. n55 Such solutions provide redress without destroying private defendants and construct flexible procedures and norms intended - by the judge and by the parties' lawyers - to suit particular circumstances. Sometimes, the court-created process is actually integrated into another prepackaged administrative procedure through the bankruptcy framework. n56 At other times, the administrative dimensions of the court-supervised process are illustrated by the reactions of other players; other branches of government, government institutions such as schools, and private actors often send lobbyists to influence the court process, just as administrative agencies have inspired the development of vital advocacy organizations such as the AIDS Action Committee and the Natural Resources Defense Council. n57 Judging for the situation, then, involves contextualized efforts to construct procedures tailored for a particular circumstance; judging  [*2021]  for the situation involves generating temporary administrative structures responsive to the claims at hand.
 
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n55. See supra text accompanying notes 11-12 (discussing Mark Twain School case).

n56. See In re Joint E. & S. Dists. Asbestos Litig., 120 B.R. 648 (E.D.N.Y., S.D.N.Y., & Bankr. S.D.N.Y. 1990) (coordinating plaintiffs' class action and defendants' previously filed bankruptcy proceedings).

n57. See Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. Rev. 1, 18 (1997); Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1683 (1975).
 
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Intriguingly, observers have drawn analogies between judicial action in complex cases and administrative agencies, but have not gone so far as to suggest that the courts are actually creating temporary administrative agencies. Thus, Professor Geoffrey Hazard has written that the "roles of judges and lawyers in the new entitlement programs resemble those of members of tripartite administrative commissions, assisted by staff and interacting with constituent interest groups." n58 He argues that the point of making such an analogy is to highlight "the web of interests, power, authority, and responsibility" emerging in the judge-made setting. n59 Professor Richard Nagareda has argued that judicial settlement of mass tort class actions "mirrors the development of public administrative agencies" and justifies a level of appellate review analogous to the one developed for judicial review of administrative action. n60 Nagareda thus emphasizes that judge-created institutions are not sui generis and instead fit an existing model for judicial control. n61
 
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n58. Hazard, supra note 10, at 577 (emphasis added).

n59. Id. at 578.

n60. Richard A. Nagareda, Turning from Tort to Administration, 94 Mich. L. Rev. 899, 902-03 (1996) (emphasis added). Professor Nagareda specifically urges use of the "hard look" doctrine, developed in the context of judicial review of administrative action, for cases in which appellate courts review district court approvals of class action settlements under Federal Rule of Civil Procedure 23(e). See id.

n61. See id.
 
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Judges like Judge Weinstein engage in action that does more than resemble the creation of administrative agencies. Creation of claims processing facilities, use of public hearings, and consultation with community members and experts amount to the establishment of uniquely temporary and contextually specific administrative processes. These devices are framed around the parties to a litigation. The court, and the adjunct actors employed by the court, perform the work of processing claims under simplified procedures and management, seeking to fulfill party expectations swiftly. n62 Exemplifying the range of administrative agencies in this country, some of the court-sponsored processes may be technically competent and efficient while others may be immersed in partisan debates. n63 Typically, the claims-processing activity set up under court approval accomplishes the same shift from fault-based norms to compensation for harms that administrative agencies have adopted in contexts such as black lung disease and workers' compensation for injuries on the job. n64
 
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n62. In these respects, the court-created administration neatly fits the characteristics that Lon Fuller described as beyond the competence of adjudication. See supra note 51.

n63. Cf. Hazard, supra note 10, at 577 (analogizing courts to different administrative agencies).

n64. See Jack B. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and Other Multiparty Devices 148 (1995) (explaining purpose of mass tort cases is compensation, not fault finding); John C.P. Goldberg, Misconduct, Misfortune, and Just Compensation: Weinstein on Torts, 97 Colum. L. Rev. 2034, 2048 (1997).
 
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Yet, while it is fair to point to the similarities between these judicially created claims procedures and legislatively created administrative agencies, the differences between the two are also striking. Two important differences divide court-created administration systems from established administrative agencies: (1) the fact of court creation rather than legislative or executive authorization, and (2) their temporary, collapsible structure as compared to the more enduring, and at times entrenched, bureaucratic nature of traditional administrative agencies. The first invites intense scrutiny and potentially fatal objection on Article III and separation-of-powers grounds; the second may offer an intriguing challenge to other forms of administration. Both are, in my view, valuable contributions to American law and politics.



1. Separation of Powers. - If a federal court, rather than the legislative or executive branches, creates an administrative agency, it is fair to inquire into the potential breach of separation-of-powers requirements and bounded authority for the judiciary. Has the court strayed into the domain of the executive to enforce the law or taken over the task of the legislature to devise prospective rules and establish governmental agencies? Have appointed judges stepped into the fray reserved for elected officials? Are the judges making political judgments that require accommodation, bargaining, and the accountability of the electoral sanction for democratic legitimacy and efficacy? Answers to these questions are bound to reflect the political preferences of the observer as much as considered theories of democratic governmental structures. Yet, seeing the inevitable infusion of politics into the question restates the problem. A judge who engages in the process of creating administrative responses to social problems is also inevitably immersed in political views, but lacks the tethering or camouflage of the traditional adjudicatory procedure.

Judge Weinstein himself has not been shy in detailing his own support for compensatory, rather than fault-based, approaches to mass torts, n65 and a cost-sharing approach toward defendants' liability. n66 Similarly, Judge Weinstein has tried to reframe debates over the alleged litigation crisis and difficulties of access to the courts by labeling the issues as the challenge of responding to "the mass of cases working their way through the system." n67 This is the language and conception of adminis-  [*2023]  tration; it also reflects a choice in favor of redistribution and spreading the costs of injuries across broad communities, rather than other potential responses to harms in the world. For those who think these kinds of questions require the tangling and wrangling of legislative debate, such court actions amount to unchecked fiat, beyond the scope of legal authority and in violation of democratic principles.
 
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n65. See Peter H. Schuck, Multi-Culturalism Redux: Science, Law, and Politics, 11 Yale L. & Pol'y Rev. 1, 11 (1993); Charles T. Kimmett, Rethinking Mass Tort Law, 105 Yale L.J. 1713, 1714 (1996) (reviewing Jack B. Weinstein, supra note 64). Judge Weinstein's interest in using epidemiological evidence to predict the incidence of asbestos-related injuries similarly reflects a compensation-based orientation. See Coffee, supra note 45, at 649 n.59.

n66. See Uniroyal, Inc. v. Home Ins. Co., 707 F. Supp. 1368, 1390 (E.D.N.Y. 1988) (construing ambiguities in insurance contract to provide coverage for defendant who agreed to Agent Orange settlement).

n67. Georgene M. Vairo, Will the New Procedural Regime Help Resolve Mass Torts?, 59 Brook. L. Rev. 1065, 1071 (1993). The backlog of cases and the pressure exerted by court executives in most federal courts teach district court judges to be concerned with docket control.
 
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Three modest defenses can be offered on behalf of Judge Weinstein and other judges who use judicial resources to respond to such social problems despite inaction by the elected branches. The first is precisely the inaction of the elected branches: The vacuum created by their inaction leaves judges with properly filed, concrete claims, requiring some sort of response. Kenneth R. Feinberg, sometimes a special master in mass tort cases and always an expert in them, has concluded that no sweeping congressional reform is forthcoming on either the procedural or substantive sides of the field, "so in effect the courts must do what they can with the tools at their disposal." n68 These cases warrant utilization of untraditional means, like special masters, community input, and aggressive case management, because they encompass unanticipated problems with wide-ranging social and political ramifications. n69 As Judge Weinstein insightfully notes, "[a] rigid and unresponsive judiciary, blind to the needs of various communities and of society at large, is far more likely to cause an erosion of public confidence in legal institutions than a judiciary perceived as overly interested in resolving the problems before it." n70
 
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n68. Panel Discussion, supra note 21, at 1205-06 (comments of Kenneth Feinberg).

n69. See Weinstein, supra note 4, at 541.

n70. Id.
 
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Judicial action actually may trigger action by the other branches, and thereby promote the vision of overlapping and checking branches of government that lies behind the separation of powers. n71 Judge Weinstein's Agent Orange settlement had this effect; Congress responded with a bill to aid veterans affected by exposure to dioxin, n72 and the Veterans' Administration eventually interpreted its mandate to include responding to the needs of these veterans. n73 Unlocking the logjam in the electoral branches may be a role uniquely assigned to the courts, and thus a basis for justifying judicial action that otherwise seems to interfere with legisla-  [*2024]  tive and executive prerogatives. n74 Energetic judging thus may stimulate action by other branches that have been frozen and unresponsive.
 
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n71. See Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law 356-72 (1990) (discussing dialogic conception of separation of powers).

n72. See Agent Orange Act of 1991, Pub. L. No. 102-4, 2, 105 Stat. 11, 11-13 (codified as amended at 38 U.S.C. 1116 (1994)).

n73. See Adam Clymer, Bill Passed to Aid Veterans Affected by Agent Orange, N.Y. Times, Jan. 31, 1991, at B6; Vietnam Veterans to Get Benefits For Ailment Tied to Agent Orange, N.Y. Times, July 3, 1991, at B6. Each of the branches has different questions and constraints when responding to the issues, but the political logjam that often prevents action by the elected branches may be dissolved by journalistic and political pressure unleashed through judicial action.

n74. See Lino A. Graglia, Do Judges Have a Policy-Making Role in the American System of Government, 17 Harv. J.L. & Pub. Pol'y 119, 124 (1994) (arguing that Brown v. Board of Education changed the Supreme Court from a source of conservative judicial review to "our society's most important initiator and accelerator of change"); Bernard James & Julie M. Hoffman, Brown in State Hands: State Policymaking and Educational Equality after Freeman v. Pitts, 20 Hastings Const. L.Q. 521, 522-32 (1993) (discussing the legacy of Brown on state law and policy); Peter H. Schuck, Public Law Litigation and Social Reform, 102 Yale L.J. 1763, 1773-77 (1993) (reviewing Gerald P. Lopez, Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice (1992), and Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991)) (reflecting on Brown's role in the debate over judicial activism and social change). But see Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice 231-32 (1987) (contending that Brown was not meant to be a groundbreaking act of judicial activism intended to lead society, but a preservation of the racial status quo).
 
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Second, judicial action may be defended here as continuous, rather than discontinuous, with other forms of adjudication. There is not an obvious or steady line distinguishing the judicial role involved in selecting strict liability as the standard in a particular tort case from the judicial role involved in supervision of a settlement achieving a similar result. Of course, this line of defense may simply expose even more judicial action to critique as invasive of the ambit of legislative or executive authority. Moreover, if the costs of the administrative process include assessments to the government, and not just to private parties, obtaining public revenues and justifying their use calls for resort to the elected branches. n75 Yet, all judicial action requires appropriations and expenditures of public funds, ranging from the salaries of judges and clerks to outlays for paper and computer disks. Enforcement of the simplest damages award requires the use of personnel to process forms and, at times, to execute liens on property. There is no sharp line separating the tasks of adjudication and the tasks of implementing the law. A separation-of-powers objection starts a debate about appropriate judicial behavior; it does not clinch the debate, nor provide an absolute bar to a temporary administrative apparatus.
 
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n75. See Rosenberg, supra note 74, 18-19; cf. Jack B. Weinstein, The Effect of Austerity on Institutional Litigation, 6 Law & Hum. Behav. 145, 146-50 (1982) (emphasizing limitations on complex litigation given failure of electoral branches to provide resources or mood of responsiveness to public problems).
 
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Third, exposure and defense of the boundaries between the branches are necessary for reasoned debate: The initiative of someone like Judge Weinstein can generate public debate and analysis to sharpen understandings of separation of powers, a crucial element of our governmental structure. Jack Weinstein's approach to judging renders immediate what otherwise can remain a remote debate about the proper relationship between law and justice. Weinstein's approach reminds lawyers, judges, and theorists that legal rules - ranging from the most technical procedures to the basic constitutional structure - were devised by human  [*2025]  beings as means for governing with justice. In Judge Weinstein's court, it is no defense to argue "that's never been done before"; legitimacy and legality are to be measured as much by results as by concordance with precedent. Accordingly, if governing with justice requires bending the rules and altering precedents, then the rules and the precedents need to be bent and altered. Of course, this is only one of many vigorously competing views about the proper relation between justice and law. As a result, Judge Weinstein's landmark cases afford rich, real examples to test the typically abstract debates over this and other competing views of law. In this way, his decisions benefit even those who find his approach to law to be an appalling disregard of its constraints.



2. Temporary Administration. - An administrative agency established by the legislature or the executive may have an endpoint or sunset provision terminating its existence, but this is not the common practice. n76 Instead, such administrative agencies, once established, tend to endure and require massive efforts to trim them, much less to close them down. n77 The administrative processes established by courts, in contrast, have very specific time limitations, even if they endure for several years. n78 A claims facility lasts only as long as the fund exists and claims remain to be processed; judicial supervision through masters and magistrates may extend longer than some would like, but it does come to an end when assigned tasks are fulfilled, when the parties complete their assigned duties or successfully move to modify their obligations, or when the judge involved concludes that no more can be done. These are not perfectly calibrated measures for termination, but they do yield endpoints to judicially sponsored administrative action.
 
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n76. See Eric J. Gouvin, Truth in Savings and the Failure of Legislative Methodology, 62 U. Cin. L. Rev. 1281, 1366-67 (1994) (sunset laws provide for "explicit review and reauthorization" of agencies, but they "have not lived up to their advance billing").

n77. See Stephen Barr, Energy Dept. May Show Its Staying Power, Wash. Post, May 16, 1995, at A1 (reporting that though long-term costs of eliminating the Energy Department might materialize over time, the short-term costs of reorganizing its functions of nuclear weapons storage, nuclear waste management, and weapon site cleanups would be overwhelming); John C. Kester, Down With Incrementalism: If You Want Real Change, Quit Tinkering and Act Boldly, Washingtonian, Sept. 1995, at 37, 44 ("Simply giving government agencies a trim is like mowing crabgrass. Unless you pull up the roots, it grows right back tougher than ever.").

n78. Granted, some types of judicial supervision can extend for long periods of time. Notable examples include judicial supervision of school desegregation in particular cities, and judicial supervision of complex consent decrees designed to reform mental institutions and prisons. See Sturm, supra note 50, at 1357-58. Yet, even these lengthy involvements have endpoints, and an overarching sense of temporariness that can be invoked by the parties to push for speeding along the process, or terminating the judicial role.
 
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Many observers of bureaucracies emphasize their self-perpetuating tendencies and their capacity to redefine tasks to justify the continuation  [*2026]  of the bureaucracy itself. n79 In this light, self-limiting administrative initiatives offer real benefits in terms of cost savings and accountability. Very specific appointments to the role of master and precise uses of magistrates who report to one judge produce svelte administrative structures that can be enlarged or diminished with relative ease. At a minimum, these structures offer a rich possibility for empirical comparisons of alternate administrative structures. More ambitiously, the temporary administrative forms devised by courts could offer models for administrative initiatives created or sponsored by the other branches. Inventing flexible, responsive administrative practices may be the only alternative to big, blunt bureaucracies on the one hand, and private market mechanisms on the other. n80
 
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n79. See Michel Crozier, The Bureaucratic Phenomenon 187 (1964); The Organizational Behavior Reader 478-80 (David A. Kolb et al. eds., 6th ed. 1995).

n80. See Thomas O. McGarity, Reinventing Rationality: The Role of Regulatory Analysis in the Federal Bureaucracy, 263-67 (1991); Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 96-99 (1995); Gunther Teubner, Substantive and Reflexive Elements in Modern Law, 17 L. & Soc'y Rev. 239, 240-41 (1983).
 
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III. Critiques and Responses
 
Judge Jack Weinstein exemplifies public law judging, with all the virtues and vices of that phenomenon. He exhibits bold, pragmatic responsiveness to complex problems. He combines brilliant technical and deft personal abilities to manage polycentric disputes. But he treats rules like pipe cleaners to be bent or tossed aside. And his personal powers risk extending to the point of insulating his own actions from review or limitation. Quite aside from objections based on separation-of-powers concerns, n81 Judge Weinstein can be criticized for using his personal strengths to produce settlements, rather than to declare and enforce the law; to impose his own views, rather than to shepherd fair negotiations among the parties; and to shield his actions from review by higher courts. These are serious and weighty objections that help to highlight occasions where even those who hold him in the utmost regard may conclude that he has mistepped.
 
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n81. See supra Part II.C.1 (discussing separation of powers objections).
 
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A. Supervising Settlements vs. Declaring the Law
 
When a judge uses the structure of a federal court to grab the whole of complex problems, negotiated settlements are more likely results than trials. n82 If done repeatedly and systematically, this use of the court tilts away from its function of declaring the law and toward its role in resolving disputes. The proper relationship between these two goals has been the subject of intense debate since Marbury v. Madison. n83 Recently, Professor Owen Fiss has led the charge that excessive emphasis on ob-  [*2027]  taining settlements jeopardizes goals of attaining justice for the parties and for society at large, while using up limited public resources. n84 Others, in contrast, have emphasized the value of settlements in promoting compliance by private parties, reducing the investment of judicial resources required to conduct trials and enforce judgments, and enhancing the power of private parties to shape societal norms. n85 This debate, in turn, implicates competing views about the relative importance of individual rights and community needs, and the relative societal costs of conflict and compromise. n86
 
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n82. See supra Part I.

n83. 5 U.S. (1 Cranch) 137 (1803).

n84. See Owen M. Fiss, Against Settlement, 93 Yale L.J. 1073, 1075 (1984); see also Harry T. Edwards, Comment, Alternative Dispute Resolution: Panacea or Anathema?, 99 Harv. L. Rev. 668, 669-82 (1986) (describing dangers and benefits of settlement).

n85. See Roger Fisher & William Jackson, Teaching the Skills of Settlement, 46 SMU L. Rev. 1985, 1987 (1993); Frank E.A. Sander, Alternative Methods of Dispute Resolution: An Overview, 37 Fla. L. Rev. 1, 3 (1985); Carrie Menkel-Meadow, Judges and Settlement: What Part Should Judges Play?, Trial, Oct. 1985, at 24, 27; Frank E.A. Sander, Professional Responsibility: Should There Be a Duty to Advise of ADR Options?, A.B.A. J., Nov. 1990, at 50, 50.

n86. See Mary Ann Glendon, Rights Talk 13-17 (1991); Fleming James, Jr. et al., Civil Procedure 6.7 (4th ed. 1992).
 
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This set of concerns looks largely theoretical and remote from practice. Most cases settle long before trial. n87 A small number of cases proceed to trial, with an even smaller number of these generating moments to clarify or declare the law, rather than simply apply it to contested factual circumstances. The practical concern, which is weighty, involves how to assure that settlements are fair--that weaker, less well funded parties are not perpetually induced to forgo good claims because of the sheer costs of litigating and living with uncertainty. Judicial guidance through pre-trial conferences and supervision of settlements, especially in the context of class actions, should provide some check, but then confidence in the judge becomes the central point of contention - and this is precisely the concern raised by the second objection. n88
 
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n87. See Samuel Issacharoff & George Lowenstein, Second Thoughts About Summary Judgment, 100 Yale L.J. 73, 100 (1990).

n88. In addition, judicial efforts to produce settlements can undermine the right to be heard in an adjudication. Even parties who ultimately lose find value in the process of testifying publicly; at least in the United States, people apparently find outcomes more deserving of respect when they follow from opportunities to be heard. See Tom R. Tyler, Procedural Justice Research, 1 Soc. Just. Res. 41, 52-53, 56 (1987); Tom R. Tyler, What is Procedural Justice?: Criteria Used by Citizens to Assess the Fairness of Legal Procedures, 22 L. & Soc'y Rev. 103, 106, 128 (1988). Especially because settlements tend to be negotiated by lawyers, not the parties, the trial process potentially affords more chances for parties to feel recognized and heard. On this particular score, Judge Weinstein paid attention in the Agent Orange case; he described his own work as listening to veterans and permitting individual contact. See In re "Agent Orange" Prod. Liab. Litig., 597 F. Supp. 740, 764-65 (E.D.N.Y. 1984), aff'd, 818 F.2d 145 (2d Cir. 1987); see also Schuck, supra note 2, at 173-74 (describing fairness hearings conducted in Brooklyn, Chicago, Houston, Atlanta, and San Francisco, in which Judge Weinstein heard live testimony from more than 1000 class members, and received written testimony from hundreds more). Yet, this personal dimension is precisely the next objection: substituting a government by an extraordinary person for a government of laws is not a wise or legitimate alternative to a society committed to the rule of law.
 
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B. The Person of the Judge
 
The objection actually comes in two versions: first, reliance on the person of the judge exposes litigants, and society, to risks of abuse of power; and, second, decisions that depend upon the brilliance and compassion of even an exceptional person may inspire other, less talented people to impose their personal views through the office of the judge. The underlying ideal could be called "separation of persons" from the office of the judge. Somehow, the role of the impartial arbiter who is obligated to interpret the law is supposed to confine and constrain individual discretion, preference, and politics. As applied to Judge Weinstein, this ideal supports an objection: Judge Weinstein allegedly has abused his power, or, even if he has not, he inspires others to act in ways that might produce abuses of power. Instead of such conduct, proceeds the objection, all judges should be limited to settled routines. Otherwise, broad powers exercised by a person with whose values one agrees would remain available to be exercised by someone with less agreeable values. Moreover, the role of the judge should be designed for the ordinary, not the extraordinary person. n89
 
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n89. See James M. Landis, The Administrative Process 41 (1938) ("Most government affairs are run by men of average capabilities, and ... it is necessary to supply such men with a routine and a ready-made technique." (quotation and citation omitted)).
 
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Again, the context of settlement comes to the fore. Outside the sphere of the adversary process and the rule-bound trial system, the settlement process permits room for personal persuasion, input, or pressure by the judge. Judge Weinstein's conduct in the Agent Orange settlement has received the most scrutiny, no doubt because Professor Peter Schuck reported on it in a best-selling book. According to Schuck, Judge Weinstein pressed for settlement from the start of his involvement in the case, and he directed the lawyers to report to the courthouse for round-the-clock negotiations over the weekend before the scheduled trial date. n90 Thus far, these actions simply place Judge Weinstein on the aggressive side of the continuum of trial judges who all influence settlements by the sheer fact of their presence and readiness to proceed to trial.
 
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n90. See Schuck, supra note 2, at 143-67.
 
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More troubling, and indeed, most troubling to the students in my annual Civil Procedure class who each year read Schuck's Agent Orange on Trial, is evidence of Judge Weinstein's role in dictating the dollar amount of the settlement. According to Schuck, Judge Weinstein resisted an apparent agreement between the lawyers to settle the case for $ 200 million, and instead insisted on $ 180 million. n91 Judge Weinstein reportedly maintained that the plaintiffs' case was too weak to support the higher amount and that he had a duty to ensure that the settlement would not en-  [*2029]  courage future, groundless mass toxic tort litigation. n92 In the early morning hours before trial was scheduled to begin, the lawyers agreed to settle for $ 180 million. n93 Many of my students view this as an abuse of power and an imposition of personal preference. Professor Richard Marcus noted that Judge Weinstein's role in the settlement process was not unscrupulous, but instead, his effort to assure the appearance of fairness by both sides through a showing of his continuing concern for what was right. n94 Nonetheless, Weinstein's selection of the settlement figure remains "problematical" for Professor Marcus. n95 Able to press for settlement in part by threatening various rulings had the case proceeded to trial, Judge Weinstein mixed law declaration with dispute resolution in a way that may have misused both.
 
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n91. See id. at 159.

n92. See id.

n93. See id. at 158-59.

n94. See Richard L. Marcus, Apocalypse Now?, 85 Mich. L. Rev. 1267, 1293 (1987) (reviewing Schuck, supra note 2).

n95. See id. at 1294.
 
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Perhaps this last moment in the settlement process was simply a mistake; or perhaps it was the tip of a larger mistaken effort by Judge Weinstein to blur the boundaries between the settlement discussions and the decisions at trial. In a sense, the exposure of the sheer will of the judge on the amount of the settlement works to remind all observers that law, and judging, inevitably reveal and express the views of specific, real persons. n96 Despite the trappings of reasons and words, law is violence; law involves the direct imposition of some people's will on others. n97 If this is the case, tying the hands of individual judges, confining them to established practices and routines, may offer some reassurance that the imposition of force does not stem from only one person's views. Yet, practices and routines can work their own injustices, while still embodying the views of some people.
 
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n96. See American Legal Realism 165 (William W. Fisher et al. eds., 1993) ("A Judge's 'biases'... affect his response to a given dispute .... Some realists ... argue that those biases are derived ... from life experiences peculiar to the Judge." (citations omitted)).

n97. See Narrative, Violence, and the Law: The Essays of Robert Cover 203-38 (Martha Minow et al. eds., 1992).
 
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Would it be possible to ready a different judge to proceed with trial so the judge presiding over the settlement process could distinguish that role from the task of judging? Or would this solution prove both impracticable (given the costs of another judge coming up to speed in a complex case) and destructive to the dynamics of settlement (if it depends in part on predictions of what actually would happen at trial)? Experiments to test these risks would be worthwhile in order to examine and check the dangers of abuse. Especially when a judge has created a temporary administrative agency, another judge should be available to hear disputes and to review issues about procedure and substance. n98 Such efforts  [*2030]  would at least afford second chances for individuals caught in a legal world created almost out of whole cloth by an individual judge. Alternatively, an experiment could revive the use of a three-judge panel in cases involving complex settlements or the creation of a temporary administrative agency. The danger of the personal biases and preferences held by a judge would not disappear with these alternatives, but would at least be met by the personal biases and preferences of other judges, and affected by the process of public debate and collaborative decisionmaking. n99
 
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n98. See Charles M. Haar & Lance Liebman, Property and Law 453-54 (2d ed. 1985) (discussing Perez v. Boston Housing Authority, 400 N.E.2d 1231 (Mass. 1980), and noting that Judge Garrity's high level of involvement with the special master and the Boston Housing Authority gave rise to criticism regarding his impartiality).

n99. The benefits of collaborative decisionmaking underlie the jury system as well as multijudge courts. Similarly, a first rule of ethics could be: Do not take an action about which you have moral doubts without first talking it over with someone else. Deliberative practice requires dialogue, and dialogue requires more than one person; practical reason and politics, in turn, demand participation by more than one individual. See Frank Michelman, Law's Republic, 97 Yale L.J. 1493, 1528-33 (1988); Spillenger, supra note 1, at 1534 ("[A] meaningful politics cannot emerge from a community of one.").
 
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C. Unreviewable Discretion
 
The one remaining check provided by the system against abusive behavior by an active judge is the possibility of appellate review. Of course, a thoughtful trial judge can shield many judgments from review by clothing them in factual findings or other matters left to trial court discretion. Subject then to the "abuse of discretion" standard, only truly egregious decisions will be overturned.

Once again, the Agent Orange case provides an illustration - and it is one that presses the limits of acceptability. Judge Weinstein issued many "tentative" rulings in the case, such as his notion of "national consensus law" to handle the choice-of-law problem, n100 yet none of these rulings remained subject to review once the case ended in settlement. This, I believe, should not provide great cause for concern precisely because the settlement erased all of those rulings: They have no binding force in that, or any subsequent, case. However, such rulings undoubtedly affected the settlement process; and once more, assuring the availability of an independent judge should the case proceed to trial might help both the appearance and assurance of fairness in future cases. In addition, where the settlement resolves a class action, appellate review of the trial judge's requisite approval provides a potential means to check abuse. n101
 
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n100. See In re "Agent Orange" Prod. Liab. Litig., 580 F. Supp. 690, 696, 711-13 (E.D.N.Y. 1984).

n101. See Fed. R. Civ. P. 23(e). The Supreme Court's recent rejection of a class certified solely for settlement - when such a class would not have been certified for trial - indicates skepticism about the power of judicial review to protect potential class members from lawyers who stand to gain from settlements. See Amchem Prods., Inc. v. Windsor, 117 S. Ct. 2231, 2250-52 (1997).
 
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More worrisome is the basic problem that no reviewing court is likely to want to undo the settlement of a sprawling, messy case. Some comfort  [*2031]  against this prediction is afforded by the actual behavior of the Court of Appeals for the Second Circuit in the Agent Orange case, which reformulated aspects of the trial court's reasoning. n102 Yet, appellate handling of subsequent claims, filed in state court but moved through extraordinary procedural maneuvers to Judge Weinstein's court and merged there into the settlement, seems very much an abdication of independent review. n103 The reviewing courts approved the remarkable use of the All Writs Act to remove a newly filed Texas state court case to federal court - despite the absence of independently existing grounds for federal jurisdiction. n104 The predictable transfer of the case to Judge Weinstein's chambers ensured that no fresh judicial eyes would deal with the merits of the newly filed claims. Instead, those claims were absorbed in the preexisting settlement, with the rubber stamp of the Second Circuit. n105
 
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n102. See In re "Agent Orange" Prod. Liab. Litig., 635 F.2d 987 (2d Cir. 1980); Schuck, supra note 2, at 305-14.

n103. See Ivy v. Diamond Shamrock Chems. Co., 996 F.2d 1425, 1430-33 (2d Cir. 1993). For insightful commentaries on the interaction of public law and the independence of judicial review, see Susan P. Koniak & George M. Cohen, Under Cloak of Settlement, 82 Va. L. Rev. 1051, 1122-30 (1996) (discussing judicial incentives for accepting class action settlements); Nagareda, supra note 60, at 930-33 (discussing the need for independent judicial review of settlements in mass tort litigation).

n104. See Ivy, 996 F.2d at 1431.

n105. See id. at 1439.
 
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Perhaps, ironically, the most reassuring defense of Judge Weinstein comes from the pattern of reversals that earned him the nickname, "reversible Jack." n106 Frequent reversals by the appellate courts indicate some degree of review, although inevitably only a small portion of cases end up on appeal. n107 At the same time, frequent reversals should not be understood as a measure of a trial judge's incompetence. Never to be reversed is not a badge of honor. If the law is ever to grow and respond to changing circumstances, trial judges need to push and stretch it. Those closest to the situations presented in court especially need to test the settled patterns of case law and practice against more immediate perceptions of what justice requires. Moreover, it is "reversible Jack" who helps judges, lawyers, and students understand precisely the contingent boundaries of the law. In this way, reversed trial court decisions teach the same way that dissenting opinions do. The presence and publication of rejected positions educate the entire community about the range of concerns that could be raised, about the lines of arguments rejected at least  [*2032]  temporarily, and about avenues for decision that could open in the future.
 
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n106. See Charles T. Kimmett, Book Note, Rethinking Mass Tort Law, 105 Yale L.J. 1713, 1714 (1996) (reviewing Weinstein, supra note 64); Michele Galen, The Man Who's Cutting Through the Asbestos Mess, Bus. Wk., Jan. 28, 1991, at 71, 72; see also Richard B. Schmitt, 'Tort Reform' Action is Urged by Coalition, Wall St. J., Aug. 7, 1995, at B5 (describing Judge Weinstein's views on tort reform).

n107. Moreover, consider the story of the frequently reversed trial judge who happily greeted an appellate judge one morning. "Aren't you a bit embarrassed that we reversed you five times last month?" asked the appellate judge. "Why, that's nothing," replied the trial judge, "I reverse you five times every day."
 
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If Judge Weinstein did not exist, law professors would have to invent him, but we could never convince students that such a smart, learned, creative, and iconoclastic person actually served as a judge. A legal system filled with Judge Weinsteins, however, would be unimaginable, and probably undesirable. At the same time, a legal system without him would be deeply impoverished.



IV. Closing Comments
 
During the confirmation hearings following his nomination to the Supreme Court, Louis D. Brandeis became the subject of scathing critiques for failing to give unqualified loyalty to his clients. n108 It is ironic that his critics attacked Brandeis, the judicial nominee, for seeking fairness for all rather than zealous advocacy for a client. n109 Yet, his critics probably also reflected the skepticism - a skepticism that has only grown deeper during the course of the twentieth century - that any individual can know and speak for the public good. n110 This skepticism also animates critiques of Judge Jack Weinstein, who brings to the judicial role a commitment to achieve harmony between private and public interests that parallels the "moral activism" of Louis Brandeis. n111
 
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n108. See Spillenger, supra note 1, at 1500.

n109. See id. at 1501.

n110. See id. at 1527-28.

n111. See David Luban, Lawyers and Justice: An Ethical Study 238 (1988) (discussing Brandeis and his activism).
 
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Indeed, objections to Judge Weinstein's approach to judging are more likely to be cast in terms of the imposition of his personal views than in terms of his commitment to the public good. Ours is an age that makes personal testimony often the only form in which to speak with honesty about the public good. Perhaps this is why Judge Weinstein used a personal locution when he exercised the prerogative of a senior judge and removed himself from hearing criminal drug cases. He said:


 
I need a rest from the oppressive sense of futility that these drug cases leave.

...

I have taken my name out of the wheel for drug cases.

...

This resolution leaves me uncomfortable since it shifts the "dirty work" to other judges. At the moment, however, I simply cannot sentence another impoverished person whose destruction has no discernible effect on the drug trade .... I am just a tired old judge who has temporarily filled his quota of remorselessness. n112
 
 [*2033]  Although cast in such personal terms, these comments reveal Judge Weinstein's profound commitment to the public good. Judge Weinstein reminds us to keep foremost in mind the purposes behind the daily routine, to hold judicial practices up to constant scrutiny in light of the full situation, and to risk exposure to personal criticism for refusing to silence one's own view of justice in deference to prevailing practices. He reminds us, in short, to remember not only the rules limiting one's role, but also the rules governing the creation of those limits. n113
 
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n112. Jack B. Weinstein, No More Drug Cases, N.Y. L.J., Apr. 15, 1993, at 2.

n113. See generally Robert M. Cover, Justice Accused: Antislavery and the Judicial Process 125 (1985). Here, Professor Cover examined both kinds of rules as part of an exploration of the mind set of antebellum judges who personally opposed slavery, but enforced the Fugitive Slave Laws because of a belief that they lacked power, as judges, to do otherwise. Professor Cover identified the crucial difference between rules within a game that are already constructed and rules about constructing the game or generating new rules. See id. at 128. The claim by a judge that he or she can't do what justice requires confuses the first with the second. See id.
 
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Not many people in history have had the talents to fulfill this bracing vision of justice, and probably no system of justice could work if filled with people trying to pursue their own visions of justice. Professor Robert Cover sketched the distribution of judicial talent this way:


 
There are those who speak law-language poorly - whose departures from the rules will not live; who reflect neither the wave of the future to be washed into prophecy by the acceptance of the masses nor the compelling idiosyncratic departure of the master, which will pull the masses after it. Others - the vast majority - speak according to the rules, for the rules are largely derived from such as these. They depart occasionally, usually inadvertently. Then there are prophets and masters who move the law more than their democratic, per-capite share. Either they evoke the response: "This is what we've known or wanted all along, but never before so articulated." Or they strike the chord: "we've rejected or never thought of this before, but your argument compels attention, even conviction." n114
 
 
 
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n114. Id. at 128.
 
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Judge Weinstein's mastery compels attention; his special abilities involve the rules of the judicial process themselves. Creating temporary administrative agencies with those rules, Judge Weinstein has at times departed from the rules. More commonly, he has combined nimble use of prevailing legal rules with personal courage, stamina, and charisma, all in service of a commitment to use the tools available to address problems in their totality. Being a great judge requires the hubris to do what seems necessary, and perhaps surprisingly, the humility to admit the limitations of oneself and the materials at hand. n115 Judge Jack Weinstein has this remarkable palette of talents; his mastery of the judicial arts is to be admired, though probably not emulated by the rest of us who do not have his array of gifts.
 
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n115. See text accompanying note 15 (discussing Judge Weinstein's decision not to adopt the special master's report in the Mark Twain School case).
 
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