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June 16, 2021


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Wes Oliver

Sorry to hear this news. Though I never met him, I've always had a fondness for him because of his work. I frequently teach his cases on evidence and love teaching the ones where the Second Circuit reversed him. I always say to my students, nothing proves that there is more than one side to many issues than to see the Second Circuit say Judge Weinstein got an evidentiary ruling wrong.

LawProf John Banzhaf

I knew him as Professor Jack Weinstein when I was a student at Columbia Law School from 1962-1965.

He inspired me to write my first law review article [Banzhaf, Weighted Voting Doesn't Work: A Mathematical Analysis, 19 Rutgers L. Rev. 317 (1964-1965)] - when I was still a law student - although that’s almost certainly not what he intended.

Here’s what happened.

As a second-year law student, I had just joined the Law Review. Weinstein had just submitted an article for publication about the Supreme Court’s “One Man, One Vote” decision.

In it he suggested that, if new district lines could not be drawn so that the populations of each voting district were somewhat close to equal as the law now required, one could use “weighed voting.”

For example, if one voting district had about three times as many people as the other districts, and could not easily be divided into three equal-population districts, simply give the legislator from that district three votes instead of one.

Because I was the only one on the Review who had any mathematical training (as an MIT graduate), I was asked whether that would work. My immediate answer was “of course not.”

So I was ordered to go to law school office of “Big Black Jack,” as he was then known, and tell him. When I did, he did not take it very well.

In fact he stood up and, towering over my 6ft 200 pound figure, shouted: “if you are so God damned smart, write your own law review article.”

So I did!

To prove that he was wrong, I had to invent a new mathematical measure of voting power - today it’s widely known as the “Banzhaf Index of Voting Power” - and it’s taught in most colleges and even many high school math courses.

I used the article to have weighted voting declared unconstitutional [Iannucci v. Board of Supervisors, 229 N.E. 2d 195 (1967)].

Subsequently I used the Banzhaf Voting Power Index to prove that, contrary to conventional wisdom, it was people in the most populous states who had the most voting power [Banzhaf, 3.312 Votes, A Mathematical Analysis of the Electoral College, 13 Villanova L. Rev. 303 (1968)], and to analyze many other voting systems.

I greatly admired Prof. Weinstein, and certainly would not fault him for not seeing the mathematical problems with weighted voting - something other politicians and mathematicians also hadn’t recognized.

Indeed, during the many years that Nassau County (Long Island, NY) used weighed voting, nobody realized that half of the supervisors had no voting power at all.

My professor, of course, went on to become a famous and trail-breaking judge, and I will always be grateful to the nudge he gave me, and happy that he was able to make so much new law while on the bench.


When I was a young tax lawyer at Cravath, we had a case going before Judge Weinstein. About ten days before the trial was scheduled to commence the IRS issued a published Revenue Ruling on all fours with our case taking a position four square against our client’s position. Almost in panic I took it to the senior tax partner. He calmly told me that the IRS was attempting to influence the judge before trial but that I should not be concerned because Judge Weinstein is too smart to be so fooled.

At trial, the government attorney started off right away by stating that there is a very recently published revenue ruling that he feels he is professionally obligated to call to the attention of the court. Before he could say another word, Judge Weinstein told him he could sit down because he knows the IRS tends to issue such rulings before trial in an attempt to influence judges. He said the ruling is consistent with the position stated in their brief and that the purpose of the days work of the court was to decide whether the position of the taxpayer or the government is to be upheld. Argument then followed. One the way back to the office, the senior partner said to me, “See, I told you that Judge Weinstein was too smart to be so easily fooled.”

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