The Responsible Judge: Readings in Judicial Ethics

By John T. Noonan Jr.; Kenneth I. Winston | Go to book overview

M. Settling a Case

Peter Schuck, noted scholar of torts and public policy, is Simeon E. Baldwin Professor of Law at Yale. He was educated at Cornell University (B.A., 1962) and Harvard Law School (J.D., 1965). After practicing law in New York and teaching briefly at Harvard, he became director of the D.C. office of Consumers Union and spent one year with the Department of Health, Education, and Welfare. He was appointed to the Yale faculty in 1979. His book, Agent Orange on Trial: Mass Toxic Disasters in the Courts ( 1987), from which the following excerpt, "Fashioning a Settlement," is taken, won the Silver Gavel Award of the American Bar Association.

Jack B. Weinstein, who is at the center of Peter Schuck's story, was educated at Brooklyn College (B.A., 1943) and Columbia University (LL.B., 1948). He was appointed to the United States District Court for the Eastern District of New York by President Lyndon Johnson in 1967.

From the moment Weinstein entered the Agent Orange case, the goal of settlement was uppermost in his mind. He had said as much to the lawyers on October 21, and those who best knew his thinking--the special masters and his law clerks--believe that purpose guided his every action in the months that followed. For Weinstein, the attractiveness of settlement had much to do with his belief that a mass toxic tort with the special problematic features of a case like Agent Orange should not be litigated, at least under traditional rules. To try such a case, he felt, would consume an almost unthinkable amount of time (he predicted a very long trial), money, talent, and social energy, and with the inevitable appeals and possible retrials, the outcome might well be uncertain for many years to come. In the end, the only people who would surely benefit from such an endless litigation would be the defendants' lawyers, who were paid by the hour. And for all his courage and independence of mind, the liberal Weinstein must have dreaded the prospect that his genuine doubts about the veterans' causation evidence might oblige him to withhold their case from the jury or, if he submitted it to the jury and the jury found for plaintiffs, he might enter judgment for the chemical companies, notwithstanding that verdict. Finally, a

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