Federal Trial Judges: Dealing with the Real World

BY JACK B. WEINSTEIN, 69 U. Miami L. Rev. 355 (2015)

Introduction: A realistic description of the federal trial judge’s role might be “Dealing with the Real World.” We are concerned with real people and the impacts of law on those people. We observe real lives through our window to the world. Where the law is inadequate or perverse, we report our observations to those with power to lead: the public, the legislature, and the appellate courts. And, from time to time, we bend the procedural and substantive law to do justice in individual cases.

The perpetually troubled underclasses, the cheated consumers, those injured by pharmaceuticals, and those deprived of constitutional and other rights are grist for our mill. Too often we are reminded of Job’s wail: “Behold, I cry out wrong, but I am not heard: I cry aloud, but here is no judgment.”
Amid massive abuse by the government of prisoners, the mentally disabled, and those otherwise deprived, a class action with decrees and long-term supervision is needed. Providing justice for those who need help on a massive scale requires tough, controlling trial judges.

Allow me to illustrate my views on mass litigation by briefly touching on my own odyssey as a trial judge. Along the way, I have developed some personal “Rules for Survival.”

The first ten of these “Rules for Survival” address class actions, quasi-class actions, multi-district litigations, and the like. In the real world, such mass actions are the only practicable way to impose liability on those causing major harm and to provide adequate remedies to the many injured.In these remarks, I do not address the critical issue facing our profession: the representational problems faced by the vast number of individuals—immigrants, the poor, and the middle class—without adequate counsel and without adequate civil legal protections.A discussion of the work being done to respond to these profound legal problems must be left for another day.

Later, I will also state three of my personal “Rules for Survival” in the criminal law context and then conclude with one “General Rule for Survival.” . . . Full Article.

Recommended Citation: Jack B. Weinstein, Federal Trial Judges: Dealing with the Real World, 69 U. Miami L. Rev. 355 (2015).

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