Judging Responsibility, Responsible Judging

Abstract

I am honored to have this opportunity to pay public tribute to Judge Weinstein. The most important things to say about him are the most obvious. He is superhuman—learned and wise beyond measure, eternally curious, impossibly energetic, deeply compassionate, fiercely determined, and completely charming. He has also been, and still is, an extraordinary public servant. As a lawyer, government official, judge, and legal scholar, he has devoted his life to the well-being of others, especially the vulnerable. Simply put, there are precious few who can claim to have done as much, and lived as well, as Jack Weinstein. I will take this occasion to sketch out two ways in which Judge Weinstein’s performance as a district judge raises issues of responsibility. First, I will consider how he has understood and applied concepts of responsibility central to tort law. Unsurprisingly, I will claim that, in his efforts to do “equity” through mass tort litigation,1 he has sometimes stretched these concepts quite far. This claim in turn raises a second set of questions about responsibility—namely, questions about the role responsibilities of a federal district court judge. Responding to those who criticize Judge Weinstein for being an “activist” whose decisions exceed the bounds of his office, I will contend that, notwithstanding his creativity, he has acted in a manner faithful to his official responsibilities. Indeed, I will show that, in important respects, he has acted more responsibly than other judges, including some who take pride in being “restrained.”