THEB E N J A M IRECORD N N. C A R D O Z O L E C T U R E OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 2008 Vol. 63, No. 2 BENJAMIN N. CARDOZO LECTURE The Role of Judges In A Government Of, By, and For the People 2 0JACK 0 8 B.V O WEINSTEIN L. 6 3 , N O. 2 307 THEJ A C RECORDK B. W E I N S T E I N 2008 Vol. 63, No. 2 Contents REMARKS OF SENATOR EDWARD M. KENNEDY 312 58TH BENJAMIN N. CARDOZO LECTURE: THE ROLE OF JUDGES IN A GOVERNMENT 314 OF, BY, AND FOR THE PEOPLE by Judge Jack B. Weinstein NOTES FOR THE 58TH BENJAMIN N. CARDOZO LECTURE: 326 by Judge Jack B. Weinstein THE RECORD OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK is published by The Association of the Bar of the City of New York, 42 West 44th Street, New York, NY 10036-6689. Available by subscription for $60 per volume. For information call (212) 382-6695. THE RECORD is printed on paper which meets the specifications of American National Standard ANSI Z39.49-1984, Permanence of Paper for Printed Library Materials. Copyright © 2008 The Association of the Bar of the City of New York. All rights reserved. T H E R E C O R D 308 B E N J A M I N N. C A R D O Z O L E C T U R E 58th Benjamin N. Cardozo Lecture The Role of Judges in A Government Of, By, and For the People Introduction by The Honorable Jack B Weinstein TABLE OF CONTENTS Senator Edward M. Kennedy 312 Lecture by Judge Jack B. Weinstein 314 I. INTRODUCTION 326 II. WHY A LECTURE IN THE ASSOCIATION’S GREAT HALL 328 IS SO GREAT AN HONOR III. PRIOR CARDOZO LECTURES 329 IV. “OF,” “BY,” AND “FOR” THE “PEOPLE” 331 History to Gettysburg 333 Effect Since Gettysburg 336 V. APPROPRIATE MODESTY WITHOUT ABNEGATION 338 Experience’s Effect on Justice: Fact, Law and Empathy 341 Facts 341 Law 342 Empathy 345 Interpreting the Constitution Flexibly to Help 354 the Disadvantaged VI. “PEOPLE” REQUIRES THAT NONE BE EXCLUDED 357 Expansion by Constitution, Statute and Social Acceptance 358 2 0 0 8 V O L. 6 3 , N O. 2 309 B E N J A MJ IA N C N.K B. C AW R E DI NO SZ T O E I LN E C T U R E Children 359 Undocumented Immigrants 360 VII. “OF” REQUIRES EASY ACCESS TO THE COURTS 364 Attorney Availability 366 Criminal Cases 367 Immigrants 372 New York State Courts 373 Training 375 Other Sources of Help 376 Changes for the Future 381 Standing 382 Political Question 400 Abstention 403 Habeas Corpus 410 Statutes of Limitations 413 Government Privileges 415 State Secrets 415 Executive Privilege 418 Government Immunity 421 Sovereign Immunity 421 Eleventh Amendment 422 Qualified Immunity 427 Procedural Rules 429 Pleadings 433 Other Procedural Controls 438 VIII. “BY” REQUIRES PARTICIPATION BY THE PEOPLE 442 WHENEVER PRACTICABLE Juries 442 Jury Selection 444 Batson v. Kentucky 447 Death Qualifying 448 Juror Nullification 448 Neutralization of Juries Through Control by Judges 449 Voting 452 T H E R E C O R D 310 B E N J A M I N N. C A R D O Z O L E C T U R E Equalization of the Vote 456 Felon Disenfranchisement 457 Gerrymandering 461 Ballot Access 463 Campaign Finance 470 Bush v. Gore 471 Transparency 474 IX. “FOR” REQUIRES EMPHASIS ON SUBSTANTIVE RULES 477 OF REDRESS, PARTICULARLY FOR THE DISADVANTAGED Education 478 Inequality By Law 478 Equality By Law 479 Inequality in Fact Abetted By Law 483 Equality in Fact Encouraged By Law 488 Property Rights: Condemnation, Zoning and Conservation 493 Torts 495 Right to Compensation 495 Protean Doctrine 499 Mass Torts 501 Restrictions on Remedy 504 Sentencing 506 History 510 Effect of Reforms on Mass Imprisonment 527 Economic and Political Consequences of Discriminatory Justice 532 Regional Differences 539 Lessons for the Law 541 X. CONCLUSION 559 2 0 0 8 V O L. 6 3 , N O. 2 311 J A C K B. W E I N S T E I N 58th Benjamin N. Cardozo Lecture The Role of Judges in A Government Of, By, and For the People Remarks of Sen. Edward M. Kennedy The 58th Annual Benjamin Cardozo Lecture was presented at the New York City Bar, November 28, 2007. ’m honored to participate in this special occasion in this Great Hall, and I wish very much that I could be there in person. It’s a privilege to introduce this year’s Cardozo Lecturer, Judge Jack Weinstein. The annual Cardozo Lecture is one of the nation’s Imost prestigious honors, and it’s fitting that it’s being given this year by one of the nation’s most prominent jurists. Jack Weinstein has graced the Federal Bench in New York for forty years, and is renowned for his intel- ligence, dedication, integrity, and sense of compassion. His ability and commitment to the law are remarkable, and he certainly ranks among the nation’s finest jurists, in the great tradition of Benjamin Cardozo. In many ways, his life is the story of the American Dream—born in Kansas—took a job in Brooklyn at 17 as clerk for Byrnes Express Trucking Company—rose to manager while earning his B.A. degree at night at Brooklyn College—served in the Naval Reserve in World War II— came home to earn his law degree at Columbia, and went on to a bril- T H E R E C O R D 312 B E N J A M I N N. C A R D O Z O L E C T U R E liant legal career, including service as a member of the legal team in Brown v. Board of Education. There is hardly any area of the law on which Judge Weinstein has not had a profound impact far beyond his courtroom in Brooklyn. Whether the issue is torts, civil or criminal procedure, criminal law, or sentencing offenders, his expertise is legendary. He’s been a pioneer on mass tort liti- gation involving Agent Orange, asbestos, and tobacco, and his textbooks on evidence and on civil procedure are classics frequently cited by the Supreme Court—sometimes by both the majority and dissenting opin- ions in the same case. In his brilliant career, he’s been a superb lawyer, a respected member of the faculty at Columbia Law School, and for the past four decades an excellent federal judge. Throughout his extraordinary career, he’s always put the public interest first, and he’s often been called the nation’s judi- cial conscience. Needless to say, the Kennedy family has also relied on his wise coun- sel and sound judgment. When my brother Robert Kennedy was a Sena- tor from New York, he wisely sought out Jack for legal and political ad- vice, especially on state reapportionment in the 1960s and the political minefield at the New York State Constitutional Convention. When a fed- eral court vacancy for the Eastern District of New York became available in 1967, Bobby urged President Lyndon Johnson to nominate Jack, and the rest is history. I too have frequently relied on Jack over the past forty years as a member of the Senate Judiciary Committee. On issues such as criminal code reform, bail reform, and the federal law on criminal sentencing, he has always been extremely knowledgeable and far-sighted. I commend the City Bar Association for honoring Jack as this year’s Cardozo Lecturer. Benjamin Cardozo would be proud of Jack for all he’s accomplished for the people of New York, for the nation, and for the rule of law. I’m proud to introduce him now—the Honorable Jack B. Weinstein. 2 0 0 8 V O L. 6 3 , N O. 2 313 J A C K B. W E I N S T E I N 58th Benjamin N. Cardozo Lecture The Role of Judges in A Government Of, By, and For the People* Jack B. Weinstein The Honorable Jack B. Weinstein delivered the 58th Annual Benjamin Cardozo Lecture at the New York City Bar, November 28, 2007. am deeply grateful for Senator Kennedy’s words. They are much more generous than I deserve. It is a matter of great regret that he could not be here tonight. For almost half a century he has fought a con- tinuing battle for the oppressed and for the future of our great na- Ition—as did his brothers. Delivering this lecture is, for me, an extraordinary honor. It was this Association’s superb library that supplied the resources I needed as Judge Stanley Fuld’s clerk in the 1940s, and later as a private practitioner with a tiny office on 42nd Street. Here, in the early 1950s, I had the privilege of working on committees with Harry Tweed, Jack Dykman, Judge Sylvia Jaffin Liese and other gen- erous lawyers. They persuaded youngsters like me, through example, that with good luck we too might ultimately practice law in their great tradi- tion—to improve society. Entering this building in the forties and fifties, when we were still heady from having defeated the world’s tyrants, the fluted pillars seemed to whisper, “liberty, equality and justice for all.” * Copyright c November 28, 2007, Jack B. Weinstein. All rights reserved. T H E R E C O R D 314 B E N J A M I N N.