You have a long history in litigation centered on product liability and tort cases, perhaps the most impactful of which was your 1998 tobacco case that resulted in a multi-billion dollar settlement. How did you become involved in that case? What do you perceive to be its significant results?
I started practicing law in 1978, and in 1984 I joined a law firm in Minneapolis. They were well known for doing high-level product liability cases and representing the plaintiffs, which was unusual for a big law firm. Product liability was a big field, generally speaking, in the law back then. It is less so now, but it certainly was back then. So, I did a lot of trial work, and then in 1994 the firm was considering this big undertaking, and I was approached by the chairman of the firm to be part of the trial team. We pushed and pushed and finally succeeded in finally getting hundreds of thousands of documents from the tobacco industry, and it took two trips to the Supreme Court to get it. We had to open a document depository to manage this and hire a full time staff. Everything was paper back then, so there had to be an orderly way that it had to be organized and accessed. The case went to trial in 1998. And we settled at the very end, the industry actually did nine hours of closing argument on a Thursday, and Friday morning we were to give our closing arguments, and it would’ve gone to the jury. And the judge told us that once it went to the jury there would be no settlement, and we settled it [right before the defense gave its closing argument].
Tulane professor Gabe Feldman is quoted saying that you “favor[ed] the little guy,” in relation to the tobacco litigation. Do you find this to be true?
You know, I take my oath very seriously, and it’s one thing to have been a trial lawyer to represent my clients as I did. I enjoyed what I did, but once I became a judge …I am a believer in the necessity to be entirely impartial, so I don’t favor anybody. I rule the way I need to rule based on what argument’s more persuasive.
Though you have a history working with civil rights suits, can you tell me a little bit about your role in ending the NFL lockdown? That was your second case concerning issues related to the NFL. Did you ever imagine that you would have such an impact on the world of sports litigation?
We’ve had a long history in the district of the disputes between the NFL and its players, going back decades. …The case really has to do with the intersection between the anti-trust world and the labor world. In the free market, you can’t restrain trade; you can’t tell players that they can only work at some particular salary for a particular term. In the labor world, you can; you can have labor agreements that impose those restraints on unions from anti-trust [laws]. What happened here is that we were right on the edge, and the players had de-certified their union, and then they argued that the athletes of the NFL were in violation of anti-trust laws. That was the subject matter of the case. It didn’t actually ever get to the point of resolving that question; it’s still an open question. It’s been addressed before in the football context, but it also hasn’t reached a conclusion. Here the question was limited to whether I had the power to enjoin the lockout because we now had non-unionized employees who were locked out, which is traditionally a labor action. I ruled that I did have the power to enjoin the lockout, [a decision later reversed by an appeals court].
I read on your wikipedia page — which, by the way, I would imagine is an exciting thing to have — that you worked with Minnesota Women Lawyers for over a decade. Do you find it important to work with and support other women lawyers? Do you find that your gender has had an impact on your career as a lawyer and a judge?
First of all, when I became a lawyer in 1978, I didn’t know any women judges, I didn’t know any women lawyers, I didn’t know any women partners … I barely knew any women professionals. So it was isolating to be a woman in the profession. There was a sense that you couldn’t really do that and have a family, or that women were too weak to be trial lawyers or too emotional. It was a big issue when I was a young lawyer. Fortunately it improved over time, and — moving ahead a couple of decades when I moved to Minnesota — there was this wonderful organization that created an affinity group for women lawyers. They had programming around improving your professional career, or marketing or balancing your life. It was just a nice group of women. And by then there were some women judges, so it was just a fun group to be a part of. I became president of it in the mid ’90s and they had an annual dinner where we had these big speakers, so Sandra Day O’Connor came out, Coretta Scott King came out, Janet Reno came out… so it was really fun to meet these world-famous prominent women.
How did your undergraduate experience at Oberlin affect your approach to law and your career as a successful lawyer and judge?
You know, you can’t really gauge that until you come back all these decades later and sit out there, like I did this morning, and think about that question. The reason it was significant in part had to do with the political times and in part had to do with Oberlin. Just imagine this; I started here in the fall of 1970, and in the spring of 1970 was Kent State. The Vietnam War was so disfavored by then that barely anybody was in support of it, and kids my age were being drafted, which totally changed their life. I can’t describe to you the difference between a draft and a volunteer army. It becomes such a part of your existence when there’s a draft, especially for a war that people didn’t believe in. So, it was in that context that I came to college.
I think the real answer to the question is that Oberlin infused three things in me that really lasted. When people come here, they’re young and trying to imagine their lives as adults, and when powerful things happen to you when you’re 18 and 19, it’s so deeply embedded in you that it really does define your whole life. So, first, I came to believe that it was possible as a woman to have a career. Now, that’s a given, but that was not a given back then. That was huge back then. My mother didn’t have a career; none of her friends had a career.
The second thing was that it mattered that you dedicated your life to public service, that you left the world a better place than when you entered it. And that philosophy was deeply embedded in my soul.
The third thing is how important it is to dedicate a college education to learning how to think critically and independently. I was telling my husband a story about being a junior here, and I was in an ethics class. I was a religion major, and my professor had written this book [which the class was assigned to read]. I was the kind of student before then who was very good at memorizing and regurgitating and saying what everyone already agreed with. For the first time I was going to assert myself. So, I remember sitting in the library the night before getting all worked up about how I disagreed with him about a point he was making in this book. But you can’t imagine how much effort it took for me to assert that. I got to class the next day, and he talked about this particular point, and I summoned up my courage, and I raised my hand and I said, respectfully of course, “I disagree with you.” I had never done that before. And that sounds silly to you probably, but it was really major for me. And he said, “Well, defend yourself; support yourself; why do you disagree with me; what are your arguments?” And I told him. And I thought he would say to me, “Well, idiot, this is why you’re wrong,” but instead he smiled and he said, “Good for you.” And from then on I was all of a sudden capable of having an independent thought that I hadn’t really done before. So that’s what college needs to do for you.