My Judicial Experiences, 1979 to 1985 

 

My service as a federal district court judge began in 1979. I was happy at the Columbia Law School, where starting in 1969 I taught property, administrative law, and other subjects to excellent students, and enjoyed the friendship and cooperation of brilliant colleagues. 

During my sabbatical year, 1976-77, I was appointed a New York State Administrative Judge to decide an action brought by the NY Department of Environmental Conservation (DEC) against the General Electric Co. for illegally discharging PCBs into the Hudson River. The action was legally complex and difficult to manage. PCBs had not at that time been held to be a carcinogen or serious pollutant, and GE had a permit that authorized the discharge of PCBs into the Hudson River, though it also required GE to comply with existing environmental standards. In addition to the two main parties, the federal Environmental Protection Agency and seventeen environmental groups intervened. They were led by the Natural Resources Defense Council (NRDC) which played a major and constructive role in the litigation. 

After conducting a hearing, I issued an opinion holding that PCBs were a serious pollutant and potential carcinogen. I found that GE had violated the state permit, but also held that the permit may reasonably have led GE to feel justified in discharging PCBs into the Hudson, a factor that would be pertinent to the remedy that should be imposed. (See Interim Opinion and Order In the Matter of Alleged Violations of Sections 17-0501, 17-0511, and 11-0503 of Environmental Conservation Law of the State of New York by General Electric Company, File # 2833 in the Hoover Archives.) At that point, the GE representative, future CEO Jack Welch, indicated to me (during a break) that he would be prepared to negotiate a settlement. [Welch describes the case in his biography, Straight From the Gut pp. 284-94 (Business Plus 2001.)] All the parties agreed to discuss a settlement, and asked me personally to lead the effort. I agreed to mediate if all parties and interveners agreed that I could perform that function without losing the authority to decide the case on the merits. They agreed, allowing me to perform the task. 

After several months, the negotiation culminated in a dramatic meeting during my summer vacation, on the porch of a little cottage where I was vacationing at Martha’s Vineyard, across a small pond behind Lucy Vincent Beach. Peter Berle, later to become Executive Director of the Audubon Society, was then head of the DEC, provided invaluable guidance and assistance. He was a great public servant, steady, intelligent, balanced, and trusted by all. He died tragically in an accident after a career of highly significant contributions to society. GE was represented by N. Earle Evans, Jr. of Bond Schoenek and King, who did an impeccable job; and the NRDC was represented by two outstanding attorneys, Philip H. Gitlen and Sarah Chasis, the latter going on to become one of the NRDC’s senior executives and a major force in environmental law. 

Given the extraordinary process followed and the constructive result that we reached, I wrote and published a report describing the agreement and its terms. (That report can be found in the Hoover Archives in paper form at Box 35.) The agreement called on GE to stop all discharges of PCBs into the Hudson, and to contribute $1 million in cash and millions more in services to begin studying how best to clean up the Hudson River of PCBs and other pollutants. Many years later, and much to the disappointment of all concerned, this important settlement was undermined when a retaining wall at the GE plant collapsed, allowing a large amount of PCBs to enter the River. GE was thereafter ordered to remove PCBs from the river by dredging sediment from certain places and relocating it. On December 24, 2010, the Wall Street Journal (pp. B2) reported that GE had spent $830 million on the Hudson River cleanup effort, and had taken a charge for $500 million as part of its plan to “resolve future uncertainty regarding Hudson dredging liabilities.” 

My handling of the GE case led Peter Fishbein (a friend and former Brennan clerk practicing at Kaye Scholer) to bring my name to the attention of the committee established by Senator Daniel P. Moynihan to screen candidates for the federal district courts of New York. The committee at the time was chaired by Leonard Garment, former White House Counsel under President Richard Nixon. The Garment committee recommended to Senator Moynihan that I be nominated a federal district judge in the Southern District of New York, the trial court widely regarded as handling the most important commercial and admiralty litigation in the US. I was the youngest of several candidates for appointment. Len Garment called and advised me that the committee approved in principle of my candidacy, but given my age at the time (38) I should be patient since other good candidates were older and would be appointed first. It was good news, and I used the time to finish the first volume of a study of the war powers and the Constitution during the first forty years of the nation’s history, which is discussed elsewhere on this website. 

Two years later, I was interviewed by Senator Moynihan, at the Carlyle Hotel. With him at the interview was Renata Adler, a brilliant writer for the New Yorker and novelist. She was not a member of the committee but had become a friend of the Senator, and seemed to be observing the process to see how such things are done. [She later attended the Sharon trial, discussed below, and wrote a book about that trial and the Westmoreland case, Reckless Disregard (Knopf Pub. 1986.)] Moynihan asked penetrating questions about my judicial philosophy, but was careful to avoid seeking information on specific, policy positions. He was erudite, articulate, and fully aware of the careers of such luminaries as Oliver Wendell Holmes, Felix Frankfurter, and Benjamin Cardozo. Soon after the interview I was called by Garment and told I would be recommended to the White House for appointment. The White House screening was congenial, since at the time Lloyd Cutler was White House Counsel. Cutler was one of the nation’s most able and admired attorneys. He had offered me a job at his law firm when I was clerking in Washington, D. C. President Jimmy Carter sent my name to the Senate for confirmation, which was granted after a brief and non-controversial hearing. 

I was sworn in as a U.S. District Judge on March 23 1979. It felt good to become a judge in the same court in which I had worked as an Assistant U.S. Attorney. Many of my friends attended the ceremony. My family also came, including my sisters Pearl and Shoshanna, and my brother Ike from California. My wife Marian’s grandparents, Si and Posted October 21, 2011 Helen Scheuer were there, and seemed proud and happy. Si Scheuer was a strong and outspoken person. I had a cordial relationship with him and admired his achievements and charitable activities. Helen Scheuer was a beautiful and gracious lady, loved and admired by the entire family. 

My appointment to the district court was gratifying but did not go to my head. The night after my induction, Ike and I went to a Rangers playoff game against Montreal. The Rangers got clobbered. But we had an amusing encounter with a scalper who sold us tickets at the last minute. He was worried when we approached him that we might be undercover cops, setting him up for prosecution. He seemed eager to sell us the two tickets we wanted (at an exorbitant price) but was reluctant to hand them to us and take our money in public, looking around uneasily even after we had negotiated the price. I told him, in as genuine a New York City accent as I could muster: ―What do you think I am, a federal judge or something? He handed over the tickets, I gave him the money, and Ike and I have laughed over the incident ever since. 

I worked hard as a judge, as most district judges do. By the time I began to serve, the federal courts were on the individual calendar system, pursuant to which judges are assigned for all purposes a portion of all civil and criminal cases filed in the district in which they serve. This system proved to be much more efficient overall than having cases go from judge to judge for different purposes. Increased efficiency resulted in part from the fact that each judge worked harder because he/she was accountable for all the cases he/she had been assigned. The workload of district judges in a busy courthouse is substantial and endless; civil and criminal cases are constantly being filed. When I served, each active judge in my district received about 350 civil and 50 criminal cases each year. It was and remains virtually impossible to keep up with the inflow of cases, including the motions and trials that follow. With guidance from some senior colleagues (particularly Charles L. Brieant, Jr. and Edward Weinfeld) after a year or so, I had my caseload under control, with a monthly average of about 325 pending civil cases. Some judges did not care how many cases were pending on their calendars; and when the number got high enough (about 600 to 800 in some instances) the total pending would level off due to the high rate of settlements. But most judges cared, and still care, a great deal about keeping up, so they work long hours and virtually every day for what has become an absurdly low salary, causing many excellent people to decline to serve or to resign. Congress should increase judicial salaries to a reasonable level, and set up a process for automatically adjusting them for inflation. 

The most efficient judges in the Southern District at the time I served — Edward Weinfeld and Milton Pollack — used very different methods for achieving their exemplary performance. Judge Weinfeld did not push people into settling; he made prompt decisions on motions and called cases to trial as soon as they were ready. Judge Pollack pressured parties to settle, though he also worked very hard, and his pending case numbers were essentially the same as Weinfeld’s (about 275 to 300 civil cases.) Weinfeld, before whom I tried my first case as an Assistant U.S. Attorney and who was my mentor on the Court, advised me not to try to be like Pollack, which anyway would have been impossible. “Just keep your cases moving,‖ Weinfeld advised, ―and they will settle at the same rate as Pollack’s or anyone else’s.” He was correct. 

During the six years I spent on the bench I had many interesting trials and motions, and spent two weeks on the Second Circuit Court of Appeals by designation. My most famous trial was the libel action brought by General Ariel Sharon against Time magazine, but I presided over other significant and fascinating matters, and had many memorable moments. All told, I published over two hundred decisions, which can be found through the Westlaw system. My work – and the pleasure of service – was greatly enhanced by my wonderful law clerks. I had 12 law clerks during the six years I served; five went on to clerk on the U.S. Supreme Court, and all twelve of them were good enough to have deserved that job. 

My clerks worked on my most important projects, helping me deal with complex issues and drafting opinions. This was how Judge J. Skelly Wright and Justice William J. Brennan, Jr. used me when I served them as a clerk. The routine stuff was easy for me to do efficiently without the help of clerks, so I did that work myself, relying on my clerks to help me with the most complex matters. I left the bench in 1985 after accepting an offer from Secretary of State George P. Shultz to become Legal Adviser at the U.S. Department of State. 

Sharon v. Time, Inc. The Sharon case was assigned to me from the wheel, like all my other cases (except those I accepted to relieve judges who were behind in their work.) Both sides knew that I was Jewish, and that I and my wife’s family were supporters of Israel and Jewish charities. Time, Inc. had no objection to my acting as judge over the matter and in fact offered to waive a jury, a proposal that Sharon’s brilliant and amusing lawyer, Milton S. Gould, wisely refused to accept. The case was full of interesting legal and human twists. Each side viewed the other with scorn and disdain. Time, and especially its Editor-in-chief Henry Gruenwald, regarded Sharon as a war criminal. Gruenwald, a refugee from Nazi-controlled Austria, thought Sharon was essentially a Nazi. Sharon, on the other hand, as well as Gould and his team, regarded Time as anti-Semitic and arrogant. The Anti-Defamation League arranged for Gould to try the case using contributions received from the public for the purpose of providing Sharon a defense, but largely on a pro bono basis relative to Gould’s normal fees. Gould was assisted by Bernard D. Fischman, Arnold Foster, Richard M. Goldstein (and others) and an Israeli lawyer, Dov Weisglas, Sharon’s brilliant and amusing personal lawyer and friend (who later acted as a negotiator during Sharon’s administration as Prime Minister.) Time was represented by an exceptionally capable team from Cravath Swaine & Moore, led by Thomas Barr, with Robert Rifkind, Paul C. Saunders, Stuart Gold, and others assisting. 

The major aspects of the Sharon litigation are reported in published opinions on motions to dismiss and for summary judgment. . [See Sharon v. Time, Inc., 575 F. Supp. 1162 (1983); 599 F. Supp. 538 (1984); 609 F. Supp. 1291 (1984); and 103 F.R.D. 86 (S.D.N.Y. 1984.)] The case stemmed from a story in Time that reported on the decision of a Commission of Inquiry, appointed by the government of Israel, to determine responsibility for the massacre of civilian Palestinians in the refugee camps of Sabra and Shatilla in Lebanon in 1982. The killing was done by Phallangist forces in apparent revenge for the murder of their leader, President Bashir Gemayal. The camps were, however, under the control of Israeli forces at the time, and the inquiry was concerned with (among other things) who had authorized the Phalangists to enter the camps and round up those who were murdered; why such an authorization was given; and whether any Israeli commanders or personnel knowingly or negligently allowed the massacre to occur. 

Time reported accurately that the Commission, chaired by former Chief Justice Kahan and with Justices Aharon Barak and Yona Efrat as its other members, had concluded that Sharon (Minister of Defense at the time of the massacre) had acted negligently and inconsistently with his duties by failing to prevent the killings. The Commission required Sharon to resign from his position as Defense Minister. The Commission also found, however, that Sharon had not knowingly allowed the massacre. While Time reported the Commission’s conclusions, it also asserted that the Commission had made a finding in a secret Appendix B to its report that Sharon “told the Gemayels that the Israeli army would be moving into West Beirut and that he expected the Christian forces to go into the Palestinian refugee camps. Sharon also reportedly discussed with the Gemayels the need for the Phalangists to take revenge for the assassination of Bashir.” Sharon claimed in his suit that this statement that the Commission had secretly found he had knowingly allowed the killings, was false and libelous in that it would be understood by a reasonable reader that Sharon had actually been found to have known that the Phalangists intended to massacre Palestinian civilians and had knowingly allowed the massacre to occur. The allegation also necessarily implied that the distinguished Justices serving on the Kahan Commission had lied in publishing the public conclusion that Sharon was not directly responsible for the killings, while secretly finding that he had in fact knowingly allowed the killings to take place. 

Many legal issues arose before and during the trial. I was assisted in dealing with them by one of my law clerks at the time, the brilliant and productive Pamela Karlan, who has become one of America’s best teachers of civil procedure and constitutional law. Among the most interesting of these was a motion seeking dismissal based on the theory that, even if Time intended to libel Sharon, he could not have been damaged because he had such a bad a reputation. Time also made a motion for summary judgment, on the ground that Sharon had presented insufficient evidence of actual malice on the part of Time and its reporters to raise a material issue of fact warranting a trial. The evidence of ill will and negligence on the part of Time personnel was strong enough, however, to require a trial on actual malice. Many books and articles have been written about the trial. Among the best are Renata Adler’s Reckless Disregard: Westmoreland V. CBS Et Al., Sharon V. Time and the one-sided view of Sharon’s media adviser, Uri Dan, Blood Libel: The Inside Story of General Ariel Sharon’s History-Making Suit Against Time Magazine (Simon & Schuster 1987.) 

The most interesting legal precedent set in the litigation was procedural. I had read about juries ruling in favor of plaintiffs in cases brought against publications, most Posted October 21, 2011 notably in William Tavoulareas v. The Washington Post Co. 817 F.2d 762 (D.C. Cir. 1987)(en banc). Tavoulareas claimed that The Washington Post was guilty of libel by publishing two articles stating that his “ownership interest in Atlas Maritime Company and Mobil's extensive business transactions with Atlas were a result of nepotism.” Jurors interviewed after their verdict in that case said they had given little or no weight to the constitutional requirement of “actual malice” that must be established by a public figure to obtain relief under US constitutional law. (The D.C. Circuit ultimately held that the jury’s finding of actual malice was not supported by the evidence.) Since Sharon was a public figure, to obtain relief he would have to prove, not only that the statement on which he sued was libelous and false, but also that Time published it knowing it was false or with a deliberate disregard of its truth or falsity. 

I suggested to the parties that the jury in the Sharon case might do its job of applying each required element of proof more carefully if I were to instruct it to make separate findings on each element: first whether the statement was libelous; then whether it was false; then whether it was made with actual malice; and if so, then what recoverable damages occurred. Both Sharon and Time agreed to this procedure. I therefore instructed the jury separately on each element. This was a great benefit to Sharon, since the jury made clear in separate findings that what Time said about Sharon was libelous, and that it was untrue. These findings vindicated Sharon’s moral position. The process also greatly benefited Time, however, in that the jury found that Time had acted without actual malice, a conclusion it might well not have reached if it were to have rendered a single, undifferentiated verdict. 

This form of verdict in libel cases is now called the ―Sharon Verdict,‖ and Justice Brennan among others wrote to me after the trial applauding the idea. It would have been nice if that form of verdict were called the “Sofaer Verdict”, since I invented it not Sharon; but the case was all about him, not me. Few people are aware, even now, that the Sharon case could easily have been settled. The animosity that each side felt for the other went far beyond what was usual even in a hotly contested trial. Sharon and Tom Barr almost came to blows at one point during discovery. One day, however, as the start of the trial drew near – and when elections were imminent in Israel – Gould indicated to me that Sharon would gladly be done with the case if Time were to publicly disavow its story. Sharon felt that such a statement would enable him to claim victory and resume his political career. 

At that time Barr was ill in Connecticut, and Henry Gruenwald was overseas somewhere on an assignment. Bob Rifkind, whom I knew well and respected greatly, was in charge of Time’s defense. I told Rifkind what Sharon had said, and urged him to come up with a statement that might be sufficient, noting that Time had repeatedly claimed during the pre-trial process that it had not intended to libel Sharon. Rifkind did just that, with some suggestions from Gould and myself. He proposed that Time would issue a public statement to the effect that it did not intend to libel Sharon, and that, if anyone understood its story as libelous, Time “regretted” that fact. Surprisingly, Sharon accepted the statement, telling me that he wanted to get back to work in Israel. I was as pleased as I was surprised and passed on the news to Rifkind, who seemed equally delighted and informed Time. At that point, however, Gruenwald returned to the US and rejected the deal, thus requiring a trial to go forward that became an embarrassment to Time. The verdict also eventually led to Sharon’s winning a monetary settlement in Israel, where the law does not require proof by a public official that a false, libelous statement about him was made with “actual malice”. 

Another, extraordinary aspect of the Sharon case was the request made of the Government of Israel, with both parties’ approval, to allow access to the secret Appendix B of the Kahan Commission Report. As a Minister accused of negligence, Sharon had been permitted to read the entire Report, including Appendix B. Time apparently believed, nonetheless, that Sharon had sued, not because he knew that the story was incorrect as to what was in Appendix B, but because he was counting on the Israeli Government to refuse to reveal the actual contents of the Appendix. At one point I suggested that nothing could establish the truth as to the contents of the Appendix more reliably than if the Government of Israel allowed access to both the parties. I asked if they would agree to authorize a request under the Hague Convention, through the Department of State, for access to the information in a form that would be admissible into evidence. Both parties agreed. 

I made the request through the Office of Legal Adviser, at the US Department of State, where I would be appointed to serve less than a year later. Israel’s response to the request was handled by then Attorney General of Israel, Yitzhak Zamir (later a Supreme Court Justice) who along with a committee recommended to the Cabinet that access be provided. Israel did not want the contents of the Appendix publicly released, and the parties agreed instead to designate one person, acceptable to both sides, to examine the document. Time proposed as that person its counsel in Israel, former Minister of Justice Haim Zadok. Sharon accepted this nominee, who was well known in Israel as a person of integrity. Despite this indication that Sharon must have known what was in the Appendix, Time persisted in its belief that the contents would support its position. Israel granted the request, however, and the examination of Appendix B (and other secret portions in which such findings could have been made) went ahead even as the trial continued. 

A few days later, Zadok returned from Israel and was prepared to testify to the contents of the Appendix and the other portions of the report he had examined. The trial was ending, and I needed to have the testimony presented immediately. Attorney General Zamir asked that I close the courtroom so that the information would not be made public until the Cabinet could convene and give its approval to allowing the testimony to be made public the next day. I agreed, and the testimony was given in a closed courtroom on the premise that it would be publicly released within 24 hours. 

The Appendix was nothing more than a list of the names of witnesses from security agencies called by the Commission. It did not even include a reference to Sharon, and neither did the other portions of the report the witness had examined. While I assured the press that the testimony would be released within 24 hours, my friend Floyd Abrams sought an order from the Second Circuit Court of Appeals on behalf of The New Posted October 21, 2011 York Times mandating immediate release. By the time the appellate court heard oral argument the next day, the Israeli Cabinet had authorized release of the testimony and I made the transcript public. The appeal was dismissed as moot, with Judge Mansfield expressing his disapproval of my having made the information request in an opinion that was puzzling given the parties’ agreement that the request should be made, and the existence of a treaty expressly providing a vehicle for such judicial assistance. 

After I left the bench in 1985, and especially during my tenure as Legal Adviser in the State Department, Israeli officials and reporters occasionally offered to tell me the ―true‖ or ―full‖ story of what happened at Sabra and Shatilla, and why Time’s correspondent David ―Dudu‖ Halevy was led to believe the story that the Kahan Commission had made a secret finding about Sharon in Appendix B to its report. The stories I was told could not all have been true. One thing that did emerge clearly, however, was that Halevy had a credible source for his story, and therefore had an arguably credible basis for having been misled. The hatred some people had for Sharon – including high level intelligence officials – was so intense it apparently led them to believe the worst about him, however untenable. The notion that Kahan and his colleagues would hide such a finding from the Israeli public and the world was not only a libel against Sharon, however, it was a profound insult to the State of Israel and to the distinguished members of the Kahan Commission, which explained why the Israeli government agreed to cooperate in its refutation. 

Home Box Office, Inc. v. Directors Guild of America, 531 F. Supp. 578 (S.D.N.Y. 1982) affirmed, 708 F.2d 95 (2d Cir. 1983). One of the benefits of being a lawyer in America is the opportunity to be exposed to disputes involving the full range of American life, including its industries. This benefit is especially true for judges in both the federal and state courts, and for commercial arbitrators in major disputes. 

A particularly striking example of this benefit for me was the non-jury, labor-antitrust action by Home Box Office (HBO) a producer of TV movies and shows against the Directors Guild of America (DGA) essentially a union of directors and other high-level participants in the TV film and program business. The parties were represented by two of the best trial lawyers in America at that time, George G. Gallantz of Proskauer, Rose, Goetz and Mendelsohn (with Bettina B. Plevan and Matthew E. Hoffman) on behalf of HBO, and Sidney Dickstein of Dickstein, Shapiro & Morin (with William Osborne, Jr. and others) on behalf of the DGA, along with very talented supporting casts. They put on a fabulous show, making a record of the role directors had played in creating the television industry in the US. 

Labor-antitrust law is complex. Federal labor laws exempt unions from antitrust prohibitions; workers are allowed to organize collectively to bargain with employers, often giving them monopoly power. But management personnel do not qualify as workers, and HBO claimed that TV film and program directors are part of management and therefore not exempt from the antitrust laws. The practices and powers cited by HBO in its complaint, and proved during its case in chief, established that the director members of the DGA at the time the suit was brought were managers, and were therefore violating the law by bargaining collectively. But Dickstein and his defense team were clever enough to see that they were likely to lose on the evidence at the start of the case, and nimble enough to change the facts relevant to the injunctive relief that HBO sought. During the course of the trial, DGA amended its rules and procedures to eliminate legally questionable aspects of its conduct, and to reduce the authority and collective activities of directors, so that they would no longer have monopoly power over important aspects of TV film and program production. By the time I issued my long and technical opinion deciding the case, the basis for injunctive relief had disappeared (and with it of course the most questionable forms of combined activity.) HBO appealed, even though it had effectively achieved its objectives. The Second Circuit, many months after argument, affirmed on the basis of my opinion.

American Home Products, Corp. v. Liberty Mutual Ins. Co., 565 F. Supp. 1485 (S.D.N.Y. 1983) affirmed, 748 F. 2d 760 (2d Cir. 1984). A particularly interesting case decided during my tenure involved a suit against their insurers by manufacturers of products that caused injuries after long-term exposure. AHP sued Liberty Mutual for refusing to take on the burden of its defense in 54 product liability suits. Liberty Mutual argued it had no obligation to defend or compensate AHP under the insurance policies it had issued, because the physical harm resulting from use of the products did not become manifest until coverage had lapsed. AHP argued that Liberty Mutual was required to assume defense of the lawsuits at issue (and to pay on the policies) because physical harm from AHP’s products had occurred during the time its policies with Liberty were in force. 

Initially, it seemed unlikely that I would have much to say about the applicable law in the AHP litigation. Five circuit courts had ruled on the central issue in the case — when policies covering injuries caused by such long-term exposures cover a particular injury at issue: at exposure; upon manifestation of the harm; or upon the best estimate of when the harm occurred. It seemed as though I would merely have to choose among positions advanced by the five decisions. None of those rulings came however from the Second Circuit; and, while I had to treat rulings by other circuit courts with respect, I was obliged to follow only the rulings of the circuit of which New York was a part. Furthermore, I soon realized that the five decisions were inconsistent with each other, and all of them appeared to ignore state-court precedents, which federal courts are supposed to follow in actions based on diversity of citizenship. 

The deeper I got into the case the more convinced I became that the correct basis for liability under the contracts at issue — and the basis upon which the parties to those insurance contracts had set the rates of payment for coverage — was the doctrine known as ―injury in fact.‖ While it is often difficult to determine when an injury in fact took place due to exposure to chemicals and other long-term risks, it is feasible to do so, often with considerable certainty. Anyway, the history of rate setting and contract negotiation of the policies at issue demonstrated that ―injury in fact‖ was the basis upon which the parties had proceeded in their relationship, and that New York precedents favored that standard. I therefore wrote, with the help of my brilliant law clerk at the time, Richard Posted October 21, 2011 Toranto (who went on to become one of the nation’s most distinguished appellate advocates) an opinion explaining why I was declining to follow any of the prior decisions, and why I believed that New York law and the negotiating history required application of the ―injury in fact‖ standard. The Second Circuit, with some qualifying language, affirmed [See 748 F.2d 760 (1984).] Years later, the New York Court of Appeals cited my opinion with approval in adopting the ―injury in fact‖ standard. [See: Continental Casualty Co. v. Rapid-American Corp., 80 N.Y.2d 640 (1993.) The AHP opinion is included in Kenneth S. Abraham’s Coursebook, Insurance Law and Regulation (Foundation Press 1990) pp. 480, and in other insurance treatises.] 

Thomas & Madeleine Morrison v. Eugene S. Lefevre, et al., 592 F. Supp. 1052 (S.D.N.Y. 1984). One of the most shocking cases I ever decided was an eye-opener for me of the need to keep an open mind in evaluating prisoner claims of injustice. 

No category of cases has a worse reputation for lacking merit than those filed by prisoners. Jailhouse lawyers (who usually are not lawyers at all) are constitutionally entitled to assist fellow prisoners in preparing and filing all sorts of civil actions. These include habeas corpus and other collateral attacks on convictions, as well as actions for damages and other forms of relief due to alleged improper treatment in federal and state prisons. Class actions have resulted in rulings affecting prison conditions, including medical care, food, and other aspects of confinement. But most prisoner petitions lack merit. I had to force myself to be careful in studying the prisoner petitions I was assigned in order to avoid ruling unfairly or prematurely against allowing such cases to go to trial. 

The case that taught me more in this regard than any I have been involved with was an action by Thomas Morrison and his wife Madeleine seeking damages and other relief against the warden and several prison guards at the Green Haven Correctional Facility in Greenburgh, New York. The complaint seemed superficially to have the earmarks of a frivolous action. Mr. Morrison, a prisoner convicted for murder. had taken to helping other prisoners with their legal petitions. He had many successes in helping others, including a successful petition that required prisons to pay interest on prisoner accounts or permit prisoners to move their funds to banks. He claimed to have done nothing to deserve punishment within the prison. Yet, he alleged, the guards and the warden had decided to punish him by planting marijuana in his cell, and concocting a scheme in which they allegedly planted invisible ink on his wife when she visited him which he supposedly could have used to get through a security check point as part of an effort to escape. These measures were used, he claimed, to justify putting him in solitary confinement and transferring him to a facility much further from his wife’s residence. 

Mrs. Morrison alleged that defendants must have put the invisible ink in a battery recharger that she had left at the prison for her husband in order to punish them both. When she complained about her husband’s transfer to a more distant location, she noted that while he had been punished, no claim had been made against her. She was charged promptly thereafter, of criminal mischief, but was acquitted, and all charges against her Posted October 21, 2011 associated with the invisible ink incident had been dismissed before I tried the case that they had brought against the guards. 

The defendants filed affidavits denying the complaint’s facially fanciful allegations, contending that Mr. Morrison was a liar and troublemaker who had been properly punished. The State distinguished Mrs. Morrison’s acquital as having been based on the strict standard of proof in a criminal prosecution. 

The plaintiffs were assigned an attorney, Dennis H. Lewitas, who often assisted people who could not afford counsel. Mr. Lewitas was slow in preparing and filing his papers, due to his many other commitments, but also because of the difficulty of discovering evidence related to the allegations. In the course of handling the case, the complaint had to be amended twice because the plaintiffs had failed to name some guards responsible for their treatment, while naming many others about whom no evidence of responsibility was alleged. At one point I indicated my intention to dismiss the complaint for lack of prosecution; Mr. Lewitas convinced me otherwise, however, taking the blame for the delay, and explaining his difficulties in collecting evidence from clients such as Morrison with his limited resources. He argued that I could not resolve all the factual disputes on the basis of a motion, without hearing the testimony of the plaintiffs and the guards. I denied the State’s efforts to obtain dismissal, but with considerable doubt in my mind that the plaintiffs would be able to prove their extravagant claims of deliberately illegal conduct amounting to significant deprivations of constitutional rights. 

After many delays, the case was ready for trial, and both parties waived a jury. Many of the specific complaints made by the Morrisons were insufficient to establish violations of their rights under federal law, and so were dismissed. It did not take long for me to realize, however, that my expectations about the underlying merits of the action were wrong. 

The plaintiffs testified with dignity and veracity. Mrs. Morrison was a religious woman, a US Post Office employee for over 20 years, with no record of criminal or other antisocial conduct. She had prevailed in the trial earlier brought against her largely on the basis of her calm, convincing testimony. Nothing in her background supported the notion that she would try to smuggle invisible ink into the prison to help her husband in a jail break. Mr. Morrison established through his testimony that he was a decent and enlightened person. He had indeed been convicted of killing someone, but he testified without contradiction that he and a friend had pursued the person with guns because he had burglarized Morrison’s house, and had threatened his common-law wife and child. He said that it was the person with him who had actually shot the victim to death. Ballistic evidence in the prosecution’s control proved that the friend’s gun, and not Morrison’s fired the deadly bullet; that testimony and other exculpatory factors eventually led the State prosecutor to agree to a reduction in Morrison’s sentence so that he could be released sooner than would have been allowed under the 20 year sentence originally imposed. Morrison’s testimony made sense in other respects as well. He had been transferred to a new institution soon after rejecting the warden’s request that he cooperate in identifying drug dealers, thereby losing his musical instruments and the jewelry he had purchased for the business he ran in the prison (with the warden’s consent) to generate profits for use by the prisoners. 

The notion that Mrs. Morrison could somehow have found and purchased the invisible ink needed to get her husband through a security check point was thoroughly demolished. Eventually the plaintiffs established (with evidence from a New York State expert similar to the chromatography evidence concerning chemical signatures I heard in the PCB case) that the ink ―found‖ by the prison guards in the battery recharger left with the guards by Mrs. Morrison had almost certainly come from the same batch of ink that the guards controlled and used. In addition, the testimony of the guards was inconsistent, incredible and crude. Their obvious hostility toward both the Morrisons tended to establish the animus that led them to adopt the scheme resulting in Mr. Morrison’s punishment and Mrs. Morrion’s unjust prosecution. I wrote a detailed set of findings and conclusions to support the surprising results the evidence had caused me to reach. I awarded Mr. Morrison compensatory damages of $50,000, and Mrs. Morrison $25,000. (Larger amounts were difficult to justify due to the lack of evidence of economic losses.) I also imposed punitive damages on the culprits among the guards of $5,000 each, a modest sum in the abstract, but one which constituted a significant punishment for men of modest means. I also ordered that an appropriate attorney’s fee would be included in the judgment in light of costs incurred by the plaintiffs, and the parties ultimately settled on an amount. The NY Attorney General’s office did not appeal my decision. 

This case is a textbook example of why it is important that federal courts maintain the capacity to consider claims from prisoners and others who may in general be inclined to exaggerate or falsify claims, but who from time to time present grave injustices that must be corrected. To preserve the right to due process, prisoners must be able to present claims of oppression and fraudulent charges concocted by prison officials, or other seriously improper conduct. 

The Moynihan Courthouse. In due course, I will try to add descriptions on this website of some of the other interesting cases I handled as a trial judge, though none was more interesting and important than those described above. The one, non-judicial matter I handled as a District Judge that is worth mentioning is my effort to get a new courthouse built near the old and wonderful, but entirely inadequate, US Courthouse in Foley Square. That project began during my first year on the bench. I was assigned a newly designed courtroom that was much smaller than the grand courtrooms in the courthouse, in order to provide the expanded corps of judges with places to try cases. (My chambers were also inferior to those of my more senior colleagues, but they were at least adequate.) 

The courtroom I was assigned had no windows, and the air conditioning was insufficient to keep even that small room cool in the hot, Manhattan summer of 1979. Trying cases in that room was horrible, not only for me, but also for the lawyers, jurors, and my staff. Posted October 21, 2011 One evening, as I was leaving the courtroom after hearing a motion for preliminary injunction on a long and very hot day, I met Chief Judge Lloyd McMahon in the hallway. He was a crusty old guy, whom I liked a lot, but who was kidding no one but maybe himself by supporting the program to design and assign such tiny and ill-equipped courtrooms. Of course, since courtrooms were given out on the basis of seniority, the new ones were assigned to the newly appointed judges, like myself. 

McMahon walked up to me in the hall, threw his arm around my shoulders, and had the audacity to assert: “Well, how about those new courtrooms. I bet you are getting along fine in yours.” I was very tired, hot, and sick of the courtroom. So, I said “Lloyd, the courtroom is a nightmare. It is cramped and hot, and everyone working there is miserable. If you think it is such a great invention, why don’t you use it and let me use yours?” McMahon stormed off in a huff. 

The story soon spread all over the courthouse, and everyone agreed that I had spoken truth to the Chief. But McMahon had a lovely, Irish sense of humor, and got his revenge. The next time the issue of the need for space came up in a meeting of the district judges, he said the matter was so important that the Court should have a committee to make the case for a new courthouse. He proposed a committee of one: Abe Sofaer. Everyone laughed, including me. I was stuck with a real job, but one in which I strongly believed. 

With the help of the District Executive, Steve Flanders, I was able to establish a strong statistical case for a new courthouse. Given the litigation trends, and the likely number of new District and Circuit Court judgeships over the next ten years or so, it was essential that additional space be created for both courts. I did a lot of preliminary, analytic work, and then expanded my committee to include Circuit Judge Amalya Kearse, certainly among the most engaging and brilliant minds I have ever encountered We drew up a plan that I managed to get into the hands of New York’s two Senators. The result, about ten years later, was to move the Bankruptcy Court downtown, and to authorize two new courthouses, one in Manhattan named for then Senator Daniel Patrick Moynihan, and one in Long Island, named for the other Senator from New York, Alfonse D’Amato. 

I expected no one to remember, let alone mention, my role in causing the new courthouse to be built. But that gracious heroine of the civil rights movement, Constance Baker Motley, did just that. When, as the new Chief Judge, she dedicated the Moynihan Courthouse, she said that it had been brought into being as a result of a process that had begun with a committee headed up by me. More recently, Steve Flanders wrote: “Among the many judges and staff whose determined efforts led to construction of the Daniel Patrick Moynihan Courthouse at 500 Pearl Street, one might single out former Judge Abraham Sofaer, who undertook a sort of crusade for suitable space during his brief judicial career. Upon his appointment in 1979, he found himself as junior judge in cramped quarters on the 30th floor that were so questionable that the floor has now been turned over exclusively to machinery. As a recent appointee, Judge Sofaer had better and livelier political connections than many judges who were his senior, and he was indefatigable in pressing anyone and everyone for action.” (See “In the Courts,” Federal Bar Council Quarterly, June/July/August 2010, pp. 8.)