Judge Jack Weinstein Mourned as Champion of Justice

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U.S. District Judge Jack B. Weinstein of the Eastern District of New York

Since the death of Judge Jack B. Weinstein on June 15 at age 99, his legendary life and legal career have been celebrated by fellow judges, who hailed him as a role model and champion of justice, and others of more humble standing who remember him as an “incredibly thoughtful” gentleman who stood up for “little guys.”

By any measure, Weinstein was a giant in the legal profession. A member of Thurgood Marshall’s legal team that prepared the landmark Brown v. Board of Education case, he was appointed by President Lyndon B. Johnson to the Eastern District of New York in 1967. In 53 years, until his retirement in 2020, he reinvented how courts handle mass tort litigation, greatly upgraded the role of U.S. magistrate judges, and conducted himself in an egalitarian manner, wearing business suits instead of a robe in the courtroom and often sitting at a table with defendants as he sentenced them.

“The Judiciary has lost a national treasure,” said Chief Judge Margo K. Brodie in a statement. She added that during his tenure as chief judge of the Eastern District, Weinstein “helped transform the Court into what it is today — a court that has served and continues to serve as a model of innovation in the administration of justice for the federal courts nationally.”

In a tribute in the New York Law Journal, lawyer Darryl M. Vernon recalled visiting a mob trial in Weinstein’s courtroom while attending law school. Weinstein recognized that Vernon and a friend were law students and invited them up to the bench, even permitting them to listen to sidebar conversations during the trial.

“It was an incredible experience and Judge Weinstein made it so,” said Vernon, who received his law degree from Yeshiva University in 1981. “He went out of his way to treat two law students that he didn’t know with the utmost dignity, consideration and thoughtfulness about how we might learn more before we became lawyers.”

Born in Wichita, Kansas, Weinstein moved with his family to Brooklyn as a child. He appeared as a young actor in a Broadway play and helped pay his way through Brooklyn College by working on the docks. In 1943, he joined the Navy and served in the Pacific on a submarine. Even in wartime, his sense of justice was evident.

Jack B. Weinstein on the deck of his submarine in World War II: "I was proud to be part of ... a great war for freedom."

While Weinstein remained proud of serving in “a great war for freedom,” he also harbored guilt, seven decades after the fact, for his submarine’s role in torpedoing and sinking a Japanese cruiser. “It had about a thousand Japanese sailors aboard. I’ve since thought about those men and their deaths, and regretted it, as I regret war generally,” Weinstein said in a 2014 video interview.

Weinstein graduated from Columbia Law School in 1948 and became a law professor there in the 1950s. Future Supreme Court Justice Ruth Bader Ginsburg was among his students, and a New York Times obituary of Weinstein noted that at a 2015 event, she “approvingly referred to him as ‘indomitable.’”

While teaching at Columbia, Weinstein assisted in researching and drafting the NAACP’s legal brief in Brown v. Board of Education. “My role was of the most minor degree,” he recalled with characteristic humility.

Serving in the Eastern District of New York’s Brooklyn courthouse, Weinstein became a recognized author in courtroom procedure. Starting in 1979, while presiding over a class-action lawsuit filed by Vietnam veterans exposed to the defoliant Agent Orange, he essentially rewrote the book on how federal courts manage mass litigation.

As recalled in a 2017 Moments in History video, Weinstein traveled around the country gathering testimony on the impact of Agent Orange, and then pioneered the use of court-appointed special masters to hear testimony from litigants. In 1984, as the case was nearing trial, the chemical companies settled by creating a $180 million reparations fund.

“The veterans were treated dreadfully at that time,” Weinstein said in an interview. “I as a veteran had a great deal of empathy for them.” 

While some critics painted Weinstein as overreaching in his approach to mass tort litigation, his process was replicated in federal courts around the country. Weinstein personally presided over mass torts cases involving manufacturers of asbestos, the anti-miscarriage drug DES (diethylstilbestrol), tobacco products, and handguns.

“The things that Judge Weinstein has done in the world of mass torts has had implications far beyond his courtroom,” said Les Fagen, who served as a law clerk for Weinstein. “He developed a body of law for how to settle and resolve mass torts which other courts and other litigants are following.”

Weinstein’s management of the Agent Orange case had a more personal impact for Phillip Case, a Vietnam veteran. “Thank God for people like Judge Weinstein,” he said in 2017, “because little guys like us didn’t stand a chance.”

A statement from the Eastern District of New York, where Weinstein served as chief judge from 1980 to 1988, provided a long list of his innovations.

“He transformed the way in which magistrate judges were utilized in case management, raising their experience, profile, and visibility in ways that attracted increasingly qualified individuals, a trend replicated nationally,” Chief Judge Brodie wrote.

“He oversaw the implementation of a court-annexed arbitration and mediation program, a novelty at the time that has become a model for the rest of the country and, indeed, the world; he created the Eastern District Pro Bono Panel and the Eastern District Civil Litigation Fund to support pro bono representation of civil litigants, another innovation that was soon copied in other federal and state courts; and, in keeping with his concern that indigent persons be properly represented, he created the Criminal Justice Act Committee to ensure that the Constitutional guarantee of a right to representation in criminal cases is meaningfully afforded to indigent defendants.”

A widely respected expert on legal procedure, Weinstein said he wanted to be remembered for helping individuals to “avoid the life-killing environment of prisons.”

Weinstein also was a prolific scholar who wrote several books, including such legal profession standards as the multivolume New York Civil Practice and Weinstein’s Federal Evidence.

In and out of court, Weinstein embraced an everyman informality aimed at putting people at ease in a courtroom. He wore a suit into court and sometimes stepped away from the bench so that he could see proceedings from the viewpoints of others.

At a June 18 memorial service, Weinstein’s oldest son, Seth, recalled that “he sentenced people sitting not from the high bench but across the table. Explaining to them what the sentence was, what it was for, and how they could redeem their lives.”

In 2017, the Eastern District dedicated its ceremonial courtroom in Brooklyn in Weinstein’s name, and in 2020, at the age of 98, he retired as a judge.

“I would like to be remembered for trying to work with individuals to help them avoid the life-killing environment of prisons,” he told the New York Times, “and to save them for a life with relatives and friends, with a job, and with the opportunity to lead a lawful life.”

Weinstein’s wife of 66 years, the former Evelyn Horowitz, died in 2012. Two years later, he married Susan Berk. In addition to his wife, survivors include three sons from his first marriage, Seth, Michael, and Howard Weinstein; two stepchildren, Ronnie Rosenberg and Stephanie Berlin; and two grandchildren.

Related Topics: A Lifetime of Service, Judges & Judgeships, Judicial History

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GAO estimates that CMS had some level of supporting evidence of its review for about 74 percent of MMIS requests and about 99 percent of E&E requests. However, GAO estimates that about 100 percent of E&E requests and 68 percent of MMIS requests lacked pertinent information that would be essential for indicating that a complete review had been performed. Among CMS requirements for system implementation funding is that states submit an alternatives analysis, feasibility study, and cost benefit analysis. However, GAO found that about 45 percent of such requests it sampled for fiscal years 2016 through 2018 did not include these required documents. The above weaknesses were due, in part, to a lack of formal, documented procedures for reviewing state funding requests. CMS also lacked a risk-based process for overseeing systems after federal funds were provided. CMS provided helpful comments and recommendations to states in selected cases, but in other instances it did not. In two states that had contractors struggling to deliver successful projects, state officials said they had not received recommendations or technical assistance from CMS. The states eventually terminated the projects after spending a combined $38.5 million in federal funds. According to CMS officials, they rely largely on states to oversee systems projects. This perspective is consistent with a 2018 Office of Management and Budget (OMB) decision that federal information technology (IT) grants totaling about $9 billion annually would no longer be tracked on OMB's public web site on IT investment performance. Accordingly, the CMS and Health and Human Services chief information officers (CIO) are not involved in overseeing MMIS or E&E projects. Similarly, 21 of 47 states responding to GAO's survey reported that their state CIO had little or no involvement in overseeing their MMISs. Such non-involvement of officials with duties that should be heavily focused on successful acquisition and operation of IT projects could be hindering states' ability to effectively implement systems. To improve oversight, CMS has begun a new outcome-based initiative that focuses the agency's review of state funding requests on the successful achievement of business outcomes. However, as of February 2020, CMS had not yet established a timeline for including MMIS and E&E systems in the new outcome-based process. CMS had various initiatives aimed at reducing duplication of Medicaid systems (see table). Description and Status of Centers for Medicare and Medicaid Services Initiatives Aimed at Reducing Duplication by Sharing, Leveraging, and Reusing Medicaid Information Technology Initiative Description Implementation status Number of surveyed states reporting use of the initiative Reuse Repository Used by states to collect and share reusable artifacts. Made available in August 2017. As of January 2020, CMS was no longer supporting this initiative. 25 of the 50 reporting states Poplin Project Was to provide free, open-source application program interfaces for states to use in developing their modular Medicaid systems. Initiative never fully implemented. As of January 2020, CMS was no longer supporting this initiative. Three of the 50 reporting states Open Source Provider Screening Module Open-source module for states to use at no charge. Made available in August 2018. As of January 2020, CMS was no longer supporting this initiative. One of the 50 states reported attempting to use the module. Medicaid Enterprise Cohort Meetings A forum where states can discuss sharing, leveraging, and/or reuse of Medicaid technologies. As of January 2020, Cohort meetings were being held on a monthly basis. 47 of the 50 states reported participating in the meetings. Source: GAO analysis of agency data. | GAO-20-179 However, as of January 2020, the agency was no longer supporting most of these initiatives because they failed to produce the desired results. CMS regulations and GAO's prior work have highlighted the importance of reducing duplication by sharing and reusing Medicaid IT. To illustrate the potential for reducing duplication, 53 percent of state Medicaid officials responding to our survey reported using the same contractor to develop their MMIS. Nevertheless, selected states are taking the initiative to share systems or modules. Further support by CMS could result in additional sharing initiatives and potential cost savings. The Medicaid program is the largest source of health care funding for America's most at-risk populations and is funded jointly by states and the federal government. GAO was asked to assess CMS's oversight of federal expenditures for MMIS and E&E systems used for Medicaid. This report examines (1) the amount of federal funds that CMS has provided to state Medicaid programs to support MMIS and E&E systems, (2) the extent to which CMS reviews and approves states' funding requests for the systems and oversees the use of these funds, and (3) CMS's and states' efforts to reduce potential duplication of Medicaid IT systems. GAO assessed information related to MMIS and E&E systems, such as state expenditure data, federal regulations, and CMS guidance to the states for submitting funding requests, states' system funding requests, and IT project management documents. GAO also evaluated a generalizable sample of approved state funding requests from fiscal years 2016 through 2018 to analyze, among other things, CMS's review and approval process and conducted interviews with agency and state Medicaid officials. GAO also reviewed relevant regulations and guidance on promoting, sharing, and reusing MMIS and E&E technologies; and surveyed 50 states and six territories (hereafter referred to as states) regarding the MMIS and E&E systems, and assessed the complete or partial responses received from 50 states. GAO is making nine recommendations to improve CMS's processes for approving and overseeing the federal funds for MMIS and E&E systems and for bolstering efforts to reduce potential duplication. Among these recommendations are that CMS should develop formal, documented procedures that include specific steps to be taken in the advanced planning document review process and instructions on how CMS will document the reviews; develop, in consultation with the HHS and CMS CIOs, a documented, comprehensive, and risk-based process for how CMS will select IT projects for technical assistance and provide recommendations to assist states that is aimed at improving the performance of the systems; encourage state Medicaid program officials to consider involving state CIOs in overseeing Medicaid IT projects; establish a timeline for implementing the outcome-based certification process for MMIS and E&E systems; and identify, prior to approving funding for systems, similar projects that other states are pursuing so that opportunities to share, leverage, or reuse systems or system modules are considered. In written comments on a draft of this report, the department concurred with eight of the nine recommendations, and described steps it had taken and/or planned to take to address them. The department did not state whether it concurred with GAO's recommendation to encourage state officials to consider involving state CIOs in Medicaid IT projects. HHS stated that it was unable to discern evidence as to whether a certain structure contributed to a specific outcome. GAO believes, consistent with federal law, that CIOs are critically important to the success of IT projects. For more information, contact Vijay D’Souza at (202) 512-6240 or dsouzav@gao.gov.
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