ARTICLES Jack B. Weinstein: Judicial Entrepreneur JEFFREY B. MORRIS* I. INTRODUCTION ...................................................... 393 II. THE FEDERAL DISTRICT COURTS ....................................... 393 III. JUDICIAL ENTREPRENEURSHIP .......................................... 397 IV. JACK B. WEINSTEIN .................................................. 398 A. Weinstein the Judicial Entrepreneur ................................ 405 B. Jack Weinstein and Class Actions .................................. 408 V. CONCLUSION ........................................................ 426 I. INTRODUCTION The University of Miami Law Review’s 2014 Symposium, Leading from Below, honored Judge Jack B. Weinstein for his extraordinary career as a private practitioner, government lawyer, advisor to legislators and executive officials, major legal scholar, and federal district judge for over forty-seven years. It also offered the possibility of pausing for sev- eral days to consider the significance of the federal district courts more generally. II. THE FEDERAL DISTRICT COURTS Too little attention is paid to the work of the federal trial courts. In the two months immediately preceding this Symposium, Robert J. Shelby of the U.S. District Court for the District of Utah made it possi- ble for gay couples in Utah to marry by striking down the state’s anti- gay marriage law.1 Less than one month later, Judge Terrence C. Kern * Professor of Law, Touro Law School. Professor Morris delivered the Introduction of the Keynote at the University of Miami Law Review’s 2014 Symposium, Leading from Below. See 2014 Symposium, U. MIAMI L. REV., http://lawreview.law.miami.edu/2014-symposium/ (last visited Nov. 15, 2014). 1. Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013). See also Emiley Morgan & Marjorie Cortez, Gay Couples Wed After Federal Judge Overturns Utah’s Same-Sex Marriage Ban, DESERET NEWS (Dec. 26, 2013, 10:33 AM), http://www.deseretnews.com/article/865592784/ Federal-judge-rules-Utahs-ban-on-same-sex-marriage-unconstitutional.html?pg=all. Earlier in the same month, a different federal district judge in Utah struck down part of Utah’s anti-polygamy law. Brown v. Buhman, 947 F. Supp. 2d 1170 (D. Utah 2013). See also Jack Healy, Uncertainty in Utah as Appeals Process Plays Out over Gay Marriage, N.Y. TIMES, Jan. 8, 2014, at A14, available at http://www.nytimes.com/2014/01/08/us/uncertainty-in-utah-as-appeals-process-plays- out-over-gay-marriage.html?_r=0. 393 394 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 69:393 for the Northern District of Oklahoma struck down that state’s constitu- tional amendment barring same-sex marriage.2 In December 2013, Judge Richard L. Leon of the U.S. District Court for the District of Columbia held unconstitutional the National Security Agency’s program of collecting data on every American’s telephone records. Within a few days, Judge William Pauley III of the Southern District of New York held the same practice constitutional.3 At the same time, the New York Review of Books published a blistering article written by a judge of the Southern District of New York demanding an explanation for why there had not been a single prosecution of any prominent figure in the 2008 financial crisis.4 If this was not enough, the U.S. Court of Appeals for the Second Circuit summarily tossed out the findings of the highly regarded Southern District Judge Shira Scheindlin, who held that the New York City Police Department’s program of stopping and frisking without reasonable individualized suspicion was unconstitutional.5 Federal district courts perform functions central to the modern state—“policy-making, and social control, and regime legitimation.”6 In the United States, the federal courts are instruments of national power. Ordinarily, they are centralizing agents: enforcing the supremacy of the federal government, helping to achieve national uniformity of govern- ment policies, and conferring legitimacy on government activities. Yet, paradoxically, the federal district courts are also decentralized institu- tions operating under and constituted in some measure by state and local political leaders. As the major intake point for cases in the federal judiciary, the fed- eral district courts are also an important part of the American political process. They provide a forum in which individuals may seek to advance their goals of directing governmental actions and allocating resources. Judicial decisions resolve disputes, enforce norms, and allocate social 2. Bishop v. United States, 962 F. Supp. 2d 1252 (N.D. Okla.), cert. denied sub nom. Smith v. Bishop, 135 S. Ct. 271 (2014). See also Erik Eckholm, Oklahoma’s Ban on Gay Marriage is Unconstitutional, Judge Rules, N.Y. TIMES, Jan. 15, 2014, at A15, available at http://www.ny times.com/2014/01/15/us/federal-judge-rejects-oklahomas-gay-marriage-ban.html. 3. Klayman v. Obama, 957 F. Supp. 2d 1, 41 (D.D.C. 2013); ACLU v. Clapper, 959 F. Supp. 2d 724, 757 (S.D.N.Y. 2013). See also Sheryl Gay Stolberg, Judge Has Record of Wrestling with Thorny Issues, and the U.S. Government, N.Y. TIMES, Dec. 17, 2013, available at http:// www.nytimes.com/2013/12/17/us/politics/judge-has-never-let-presidents-off-easy-on-pornogra phy-terrorism-or-surveillance.html?_r=0; Joel Stashenko, U.S. Judge Backs Collection of Phone Data, 250 N.Y. L.J. 1, Dec. 30, 2013, at 1, 1. 4. Jed S. Rakoff, The Financial Crisis: Why Have No High-Level Executives Been Prosecuted?, N.Y. REV. BOOKS (Jan. 9, 2014), http://www.nybooks.com/articles/archives/2014/ jan/09/financial-crisis-why-no-executive-prosecutions/?pagination=false&printpage=true. 5. Ligon v. City of New York, 736 F.3d 118, 131 (2d Cir. 2013). 6. HERBERT JACOB ET AL., COURTS, LAW, AND POLITICS IN COMPARATIVE PERSPECTIVE 3 (1996). 2015] JACK B. WEINSTEIN: JUDICIAL ENTREPRENEUR 395 values. They may not be able to command social change, but they are able to speed it up or slow it down. They monitor the institutions of government and attempt to insure equal treatment and governmental “fair play” by keeping the agencies of government within their constitu- tional and statutory limits. They also are a “safety valve . provid[ing] a forum for outraged individuals or groups to vent their disapproval” of the actions of local, state, and national governments and sometimes of the private sector as well.7 Although it is rare for an individual district court judge to make law affecting the entire nation, by far the greatest quantity of cases decided in the federal court system begin and end in the district court.8 District judges preside over state trials, hear cases involving political corruption, are the first source of interpretation of federal statutes, and implement Supreme Court decisions. District judges play an important role in keep- ing the powers of the federal and state governments in balance and con- tribute to the protection of constitutional rights by insuring that American governments operate under the rule of law. The district courts are regulators of the market place, facilitators of interstate commerce, protectors of property, and enforcers of federal law. Why, then, is the literature on the federal district courts produced by legal scholars, political scientists, historians, and journalists so rela- tively thin? First, a disproportionate amount of writing on American courts is devoted to the Supreme Court of the United States. Second, while most of the nearly one thousand district judges in the United States each deal with hundreds of cases every year,9 many cases are not of great signifi- cance to the legal or the political system. Furthermore, a study of those district court cases that are of great significance demands knowledge of far more areas of law than the Supreme Court—which primarily deals 7. KENNETH M. DOLBEARE, TRIAL COURTS IN URBAN POLITICS 113 (1967); see also HERBERT JACOB, DEBTORS IN COURT 16 (1969) (“The services offered by the courts are a significant element of the output of the political system.”); LAWRENCE BAUM, THE PUZZLE OF JUDICIAL BEHAVIOR 66 (1997) (discussing policy considerations in the judicial process and their implications for society); CHRISTOPHER E. SMITH, COURTS, POLITICS AND THE JUDICIAL PROCESS 7 (1993) (“The judicial process, like other political and governing processes, involves human beings in setting goals and establishing values for society.”); ALEC STONE, THE BIRTH OF JUDICIAL POLITICS IN FRANCE 7, 10–15 (1992) (noting that judges, through their decisions, “necessarily make public policy”). 8. See Judicial Caseload Indicators, U.S. CTS., http://www.uscourts.gov/Statistics/Federal JudicialCaseloadStatistics/caseload-statistics-2013/judicial-caseload-indicators.aspx (last visited Dec. 17, 2014). 9. See Paul Mark Sandler, The World of a U.S. Magistrate Judge: An Interview with Paul W. Grimm, SHAPIRO SHER GUINOT & SANDLER (Jan. 26, 2007), http://www.shapirosher.com/pages/ news/136/the-world-of-a-u.s.-magistrate-judge_an-interview (indicating that federal trial judges can hear an “extraordinarily large number of misdemeanor criminal cases” alone each year). 396 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 69:393 with constitutional cases, criminal cases, and federal statutory interpretation. Additionally, while the Supreme Court and the courts of appeals may be studied through judicial opinions (or opinion drafts), much of the work of the district courts is not captured by opinions but buried in lengthy records. A great deal of the important work of district judges lacks a paper trail.10 It involves the judge’s role in framing, managing and settling cases, his ability to be dignified, fair and efficient in the courtroom, as well as his talent for creating findings of fact that are useful for the court of appeals and, hopefully, that are reversal-proof. Yet, much has happened in the past three decades to ease the bur- dens of observers of the district courts. Electronic legal databases permit almost instant compilation of any judge’s complete list of published opinions (as well as unpublished ones that are accessible online).