Monday, June 08, 2009

On Weinstein's Reflections On Administering Complex Litigation

On the one hand, we love Judge Jack Weinstein.

He's a distinguished scholar, an empassioned advocate for social reform, and a historic figure in the law.

On the other hand, sometimes he scares the bejeesus out of us.

We just finished reading, for example, his "Preliminary Reflections on Administration of Complex Litigation" in the inaugural issue of Cardozo Law Review's de novo. It leaves us with a certain discomfort.

How does Judge Weinstein feel about the Executive Branch?

Sadly, the piece of that Branch that matters to us, the FDA, "has not measured up to its responsibilities in this country for a variety of legislative and administrative reasons." Id. at 16.

And how, according to the judge, does the Legislative Branch perform?

Well, Congress didn't do what Judge Weinstein wanted in the hand gun cases: "Congress intervened to make it almost impossible to obtain the necessary information from the Federal Bureau of Alcohool, Tobacco, Firearms and Explosives. . . . Individual actions to meet a mass problem are of limited efficicacy where legislative and administrative powers are being utilized to protect an industry." Id. at 15-16.

So who will save society?

Judges.

And not simply judges interpreting the law. Rather, in the DES cases, the courts had to engage in "pragmatic modification of substantive law and reasonable interpretation of procedural law" to secure the settlement that Judge Weinstein thought was appropriate. Id. at 12 (emphasis added).

omg!

(We couldn't resist. All of our older readers will have to click through that link to figure out wtf we just wrote, while the younger readers grin knowingly. (We're so hip.))

Judge Weinstein's logic scares us.

The two elected branches of government are incompetent, and we must rely on unelected judges to "modif[y]" the substantive law to protect us???

If judges were uniformly brilliant, compassionate, and in agreement with us on all matters of policy, we wouldn't mind living in that world.

But we fear that the average judge is . . . well . . . average.

And even if the judiciary were like Lake Wobegon, and all judges were above average, those perfect judges would still differ on matters of policy. That's why the Founders created two elected branches of government.

We love you, Judge Weinstein, but we're with Sir Thomas More on this one. We'd enforce the laws as written, for our own sakes:

"William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!"

Not bad authority, that.

2 comments:

Andrew Oh-Willeke said...

Actually, you are quoting writer Robert Bolt channeling Sir Thomas More, but this is the Drug and Device blog, rather than the copyright blog, so the error in attribution can be forgiven.

Mark said...

I'm plenty fond of that passage from A Man For All Seasons. I don't see this as apropos of Judge Weinstein, however. Quite the contrary. How many people have done more to facilitate the rule of law in our society?