| Book Review | Law and History Review, 25.2

Book Review

William E. Nelson, In Pursuit of Right and Justice: Edward Weinfeld as Lawyer and Judge, New York: New York University Press, 2004. Pp. 291. $50.00 (ISBN: 0-8147-5828-2).

In Pursuit of Right and Justice reviews the life of Edward Weinfeld (1901–1988), a federal trial judge in New York from 1950 until his death. Widely respected during his lifetime, Weinfeld's story is worthy of book-length treatment, particularly because judicial biographies are rarely devoted to those who have served on the front lines. Trial judges have great latitude to shape trials, encourage settlement, and organize and portray the facts of cases ultimately to be reviewed by higher courts. Nelson adds an intimate and sympathetic view of an important trial judge's career to the relatively few such biographies.

Nelson documents Weinfeld's beginnings as the self-made son of immigrants, including his law school years at NYU, his law practice and political involvement, and the circumstances of his appointment to the bench. Nelson identifies Weinfeld's climb from humble origins as an "illustration of the way Catholics and Jews descended from turn-of-the-century immigrants were assimilated into the mainstream of New York and ultimately American life during the course of the twentieth century" (2). The interesting and revealing details of Weinfeld's career come from Nelson's review of voluminous documents (including Weinfeld's personal papers) and his interviews with family, former clerks, and others.

Conceding at the outset that "it remains unclear whether Weinfeld's life and career will have lasting significance," Nelson seeks a lasting significance in Weinfeld's judicial style, a "distinctive jurisprudence of potential importance to scholars and judges of today" (174). Weinfeld's jurisprudence supposedly allowed him to separate law from politics in a systematic way: "In Edward Weinfeld's courtroom, fidelity to law produced just results that others can achieve only by politicizing the law. Understanding Weinfeld's approach thus might provide a means for achieving social justice in individual cases without the political divisiveness that increasingly characterizes the judiciary today" (5).

Yet, it is difficult to discern not only Weinfeld's particular approach, but also how it may have differed from other judges who also were respected for impartiality. In one passage, for example, Nelson accords exceptionalism to Weinfeld in his respect for the rule of law: "Weinfeld's vision of justice and equality, like the visions of other judges, controlled the way he approached legal doctrine. But, since his vision was different—it required only that he adhere consistently to the rule of law—it never created a conflict with the imperative of fidelity to law that a judge with a vision of equality as distributional justice would face. Instead, it directed fidelity to law" (171). According to Nelson, Weinfeld accomplished this singular jurisprudence through a "preference for finding facts rather than deciding issues of law" (142). Somehow, meticulous attention to factual details obviated the need for interpretation of statutes or case law.

When Nelson writes that an "Old Testament attitude precluded Weinfeld from seeing himself as a judicial lawmaker," Nelson seems to suggest that Weinfeld experienced some self-delusion about his judicial method (224). Nonetheless, Nelson maintains that emulation of Weinfeld's style would help remove judges from the stigma of lawmaking and political choice. Weinfeld "adhered to legal principle and avoided deciding cases by recourse to contested policy preferences" (169). This view does not recognize that the choice of rule to apply, the interpretation of ambiguous precedent, or even the facts chosen for emphasis, must often implicate a discretion not adequately captured by the claim that one has simply "adhered to legal principle." Without comparative examples, it is difficult to avoid concluding that an unrealistic view of the judicial decision-making process has been set up against a straw man of judicial activism.

Nelson is a former Weinfeld law clerk as well as the Edward Weinfeld Professor of Law at New York University (and the book is published by NYU Press). These facts make the superlatives accorded to Weinfeld understandable. Weinfeld was "a figure on the bench of nearly biblical proportions" and a "righteous" Article III judge (131, 132). Nelson is also justifiably proud of former Weinfeld law clerks; he attributes their collective success to Weinfeld's role as a teacher. But again, no point of comparison gives the reader the ability to judge statements such as "no other district judge and few circuit judges have produced an equally notable body of alumni" (182). Nelson remarks that "twenty-eight out of thirty-five former Weinfeld clerks who have spent all or most of their careers in private practice either founded or became partners in major New York City or national law firms" (187). Indeed, a federal clerkship often predicts later successes in both the private and public sphere, and clerkships in the Southern District of New York provide elite entry into the New York legal scene.

These encomiums distract only minimally from Nelson's search for Weinfeld's "timeless legacy." Nelson asks, "Can we, as the Bible suggests, gain wisdom by studying how Weinfeld achieved justice for those who came before him?" (223). If this book does not supply that wisdom, we have certainly learned a great deal more about Edward Weinfeld's life, ethics, and accomplishments than we knew before.

Polly J. Price

Emory University School of Law

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