-jaMn.,,,·. Volume 14, Number 1

From the Dean i CREDITS Dean Pamela B. Gann

Associate Dean for External 2 Conflict Resolution Relations Linda G. Steckley Arbitrating Malpractice Disputes 7 Offer of Settlement Devices 13 EDITORS The Private Adjudication Center 16 Evelyn M. Pursley '84

Profile: Paul D. Carrington 20 Allison Adams Profile: Gerald T. Wetherington '63 23 Book Review: Medical Malpractice by Neil Vidmar 26 DESIGN Book Summary: Health Care Choice by Clark Havighurst 27 Hopkins Design Group Ltd

PHOTOGRAPHY

Duke University Ethics in Legal Education 31 Photography Chris Hildreth. Students Pursue Thorny Legal Problem All the Way to the Balkans 32 Les Todd, Jimmy Wallace, Visit the Law School's Web Site 33 and Bruce Feeley 34 Gender's Role in Higher Education Dan Crawford Good Global Citizens 35 Building Intellectual Capital Around the Globe 36 PRINTING LENS Center Sponsors Programs 36 Meredith-Webb Dedicated to Durham 37 New Leadership in External Relations, Admissions 38

Flat Tax, VAT Tax, Anything But That Tax 40 Faculty News 46

Cover Photo Profiles: Ember Reichgott Junge '77 and Susan Bysiewicz '86 50 January 1988-Duke Profile: Tanya Martin Oubre '89 52 students demonstrate Profile: Paul Sanders ' 34 53 against government policy Professional News 54 Personal Notes 66 outside Cameron Stadium Obituaries 68 during a speech by Law Alumni Association News 72 President Ronald Reagan.

Duke Law Magazine is published under the auspices of the Office ofthe Dean, Duke University School of Law. Durham. North Carolina 27708. © 1996 Enhancing the human capital of the Law standing appointment in the fields of tax policy, not-for-profit organizations, School is one way to describe the way I commercial law and transactions, bank­ and charitable giving. spent this academic year. The faculty and ruptcy and corporate restructuring, and Beth A. Simmons was promoted to I devoted an unusually high degree of structured finance. Schwarcz earned a BS associate professor with tenure in Duke's activity to faculty development. In addi­ from New York University School of political science department, and appoint­ tion, we deepened our commitments to a Engineering and a JD from Columbia. He ed associate professor of law. A Harvard number of program areas, including was a partner and practice group chair at PhD, Simmons writes in the fields of inter­ ethics and conflict resolution. We also a large New York law firm, where he national political economy and interna- worked diligently to take advantage of represented many of the our extensive investment in information world's leading financial technology and to understand better the institutions in structuring impact that a networked environment innovative capital market has on our work. I want to share a brief financing transactions, both overview of these initiatives with you. domestic and internation­ al. While practicing law, he Faculty Appointments taught at Yale, Columbia The most important asset of the Law and Cardozo (Yeshiva School is its faculty. We enjoyed an out­ University) Law Schools. standing year in faculty development, Schwarcz has written including the appointment of five new numerous scholarly works faculty. We also granted tenure to two and his monograph, junior faculty, which you can read about Structured Finance, A in Faculty News on page 49. Guide to the Principles of James E. Coleman, Jr. will return to Asset Securitization, is the Duke Law School as a professor of law. He most widely used book in is a graduate of Harvard University and the field of inventive com­ Columbia University Law School, where mercial finance. At Duke, he will teach tional relations theory. She is, without he was a contributing editor of the courses in commercial law and transac­ question, one of the best young scholars Columbia Human Rights Law Review. tions, bankruptcy and corporate restruc­ working in this field. Her first book, His extensive professional experience turing, and capital markets. He brings the Who Adiusts! Domestic Sources of Foreign includes a judicial clerkship and service experience of someone at the top of his Economic Policy during the Interwar with a congressional committee, the Legal professional field in an area of law where Years 1923-1939, won the 1995 American Services Corporation, and the Office of practical experience is extremely valuable Political Science Association (APSA) Legal Counsel for the U.S. Department of to both teaching and scholarship, while Woodrow Wilson Award for the best book Education. He is leaving his partnership also having achieved a worldwide reputa­ published in the United States on govern­ with a large Washington, D.C. law firm, tion for his scholarship. ment, politics, or international affairs, and where he performed a significant amount Professor Charles T. Clotfelter, the the 1995 APSA's Section on Political of pro bono publico services, particularly z. Smith Reynolds Professor of Public Economy Award for the best book or arti­ in the area of capital proceedings. Policy Studies at Duke, also was appoint­ cle in political economy published in the Coleman was on our faculty from 1991- ed as a professor of law at Duke. He holds past three years. Her next major research 93, and received the 1993 Duke Bar a PhD in economics from Harvard, and project will take her full force into the Law Association's Distinguished Teacher his fields include public finance, tax pol­ School. She plans to work on the subject of Award. He returned to private practice icy, and the economics of education. His compliance in international law in the while continuing to teach the death penal­ books include Federal Tax Policy and absence of effective enforcement. In pur­ ty seminar each year. At Duke, he will Charitable Giving, Economic Challenges suing this field, she would be one of the few teach criminal law, and, with Robert in Higher Education, and the forthcom­ scholars working on the relationship Mosteller, he will teach a seminar on the ing Buying the Best: Cost Escalation in between international law and interna­ death penalty and an associated clinic. Elite Higher Education. Clotfelter and tional relations theory. Her appointment The appointment of Steven 1. Schwarcz Richard Schmalbeck have co-taught a and research complement those of Benedict culminates a two-year search for an out- number of seminars in the Law School on Kingsbury in public international law.

DUKE LAW MAGAZ I NE • Doriane Lambelet Coleman will join program. No other law school in the United our means of communicating, including the faculty in the full-time position of lec­ States has organized an affiliate to provide with our alumni. Among the key factors turing fellow. She graduated with distinc­ research, education, and dispute services. influencing all of these areas are the exis­ tion from Cornell University, where she A description of some of the Center's cur­ tence of the Internet and our World Wide was a varsity track athlete, and she com­ rent activities is a feature on page 16. Web site and the context of a networked pleted her law degree at Georgetown This issue of Duke Law Magazine also client/server computing environment. University Law Center, where she was features articles by professors Thomas B. I invite you to look at our Web site associate editor of the Georgetown Law Metzloff and Thomas D. Rowe, Jr. , both of from time to time at http://www.law. Tournal. She has worked for several years whom are active in the work of the Center. duke.edu. You will see a rapidly growing as an associate in a major Washington, Continuing with this issue's focus, be sure use of this site for admissions, career ser­ D.C. law firm, and also maintained a con­ to read the article on conflict resolution, vices, journals, legal information, and sulting practice for international athletics. which includes brief profiles of our alum­ communications with our alumni. Over In addition to teaching torts, she will offer ni working in the field; articles about half of our alumni have graduated since a new course on international sports law, books by professors Neil Vidmar and 1980, and an increasing number are locat­ drawing upon her extensive practical expe­ Clark Havighurst; and profiles of Paul D. ed outside the United States. These two rience in this rapidly expanding and impor­ Carrington and Gerald Wetherington. portions of our alumni surely will rely on tant field of international law. A citizen of computer-based communications. We are Switzerland and fluent in French, she has Professionalism and Ethics using the Web site for alumni communi­ a significant interest in our non-American In March, u.s. News etJ World Report pub­ cations and information, and I hope that students and will work with the graduate lished its latest rankings of professional and you will "bookmark" the site so that you LLM students in their course on the intro­ graduate programs. The magazine's lead will use it frequently. duction to the American legal system. feature on law schools concerned the Looking over this summary of appoint­ increased emphasis on the teaching of Leadership in Legal Education ments, our attention to faculty develop­ ethics and professionalism, and the initial Duke Law School continues to provide ment is evident. The law faculty is examples were drawn from the Duke Law leadership in legal education. Our recent developing at the highest possible levels School. It used, in particular, the judicial faculty appointments are world-class. of both academic and practical capacity. ethics course taught by Judge Wetherington They reflect careful thought about fields The challenge to any superb law school '63 and federal judge William Hoeveler. of knowledge, the mix of the theoretical in a major research university is to bal­ Judge Hoeveler is quoted as saying to the with the practical, and the attention that ance faculty appointments across fields of students: "I guarantee that sometime you must be paid to globalization and the law. That balance extends to having a fac­ will be asked to do something dishonest. increasing importance of comparative law. ulty who have the capability and interest Your future lies in that moment. Even if We take seriously our commitment to law in shaping whole fields central to legal you have kids and a big mortgage, there's as an intellectual field and also to law in scholarship, by tackling large topics and only one answer: 'No.'" its application to manage private and pub­ developing their own analytical frame­ As discussed at page 31, the Law lic relationships in our world society. work, while also drawing applications of School hosted the W.M. Keck Foundation The field of conflict resolution is one their work to the improvement of law and board and officers and all the law schools example of a subject in which law schools legal institutions. that received grants from the Foundation have a special role to play in research and to improve the teaching of ethics in teaching. This Law School seeks solutions Conflict Resolution American law schools. This conference to major problems, such as the modeling of One of Duke Law School's strengths is was intellectually rich, bringing together appropriate dispute resolution mechanisms the area of conflict resolution. It also is deans and faculty from leading law and facilities and the maintenance of pro­ an area that we have targeted for signifi­ schools to work intensely for two days on fessional and ethical standards in an cant future development. The Law School what the schools had learned about the increasingly competitive and complex prac­ already possesses an extensive curricu­ teaching of ethics, what types of curricu­ tice environment. Lastly, information tech­ lum in conflict resolution. Its wide range lar materials had been created pursuant to nology is one of the most significant extends to negotia tion, media tion, the grants, and in particular, what would opportunities that we all face. We expect to alternative dispute resolution, complex be some of the most important steps that be among those law schools staking out a litigation, international litigation and could be taken by law schools perma­ leadership position in the incorporation of arbitration; inclusion of specialized areas nently to improve the teaching of ethics. information technology in legal education. like mass torts and toxic substances; and PAMELA B. GANN '73 larger international and societal conflict Technology and Legal Education DEAN issues such as mass crimes arising from The Law School enjoys one of the finest societal upheavals to management of eth­ computing environments anywhere. nic conflict by constitutional provisions With this infrastructure in place, we are and voting arrangements. turning to the interesting questions of The Private Adjudication Center is a how to apply technology to change the unique feature of our conflict resolution way we work, our teaching methods, and

ii • DUKE LAW MAGAZINE SPRING 96

PERSPECTIVE

"Do I UNDERSTAND YOU CORRECTLY? Your promise rather than capitulate on pain client is asking for a million dollars for and suffering. Defendant Ben Butler some temporary numbness in one hand? reserved most of his comments for closed That is just not reasonable." door strategy sessions, appearing impas­ "But my client's hand is her entire sive during the active negotiations. But livelihood. Because of the defendant's when his attorney, Marc Fitoussi, drew an negligence, my client lost an entire sea­ analogy between the jazz pianist and a rel­ son of her working life. Imagine if your ative whose numbness briefly had kept client, a surgeon, were to lose use of his him off the tennis court, Butler winced right hand or if you as a lawyer were to visibly as he saw the comparison pierce lose all use of your voice. And, now, imag­ his opponent like a poison dart. With ine the suffering caused by believing this $70,000 still separating them, the parties loss might be permanent." disbanded, promising to meet again in With their clients intent beside them, court, many months later, when the the negotiators squared off. How much crowded docket would permit. CONFLICT Resuming their identities as law stu­ dents, Butler, King, McFadden, and Fitoussi joined classmates and professor Neil Vidmar to debrief. Furrowed brows and tough postures now relaxed, students exchanged impressions of the case they had negotiated. Fewer than half of the student teams had reached settlement and, one after one, those headed for court enumerated the obstacles that derailed their first foray into alternative dispute resolution (ADR). "When I felt my injuries were being reduced to a number, I became incensed and my willingness to compromise was destroyed," said one plaintiff. "It was hard to get out of a legal role," reflected a nego­ tiator. Another observed that "reaching a settlement is not always the best outcome." "When I was first considering a course in negotiation," said Vidmar, "I would not have predicted that it would now be Litigation should a jazz pianist be compensated for one of the most popular electives in the a controversial, but probably not unrea­ Law School." Five years hence, student Alternatives sonable, medical procedure that cost her demand has prompted two additional sec­ the use of her hand for six months? And tions taught by legal writing instructor and what about the prospective engagements Diane Dimond and Private Adjudication Dispute she usually booked during the high sea­ Center (PAC) executive director Rene son? Alongside the basic legal and ethical Stemple Ellis '86. Originally, in planning Resolution questions, the parties grappled with tac­ the course, Vidmar sought the advice of tical issues. Should the physician reveal faculty at the handful of law schools that he carried no malpractice insurance? teaching dispute resolution and, closer to Would this information liquidate the home, at the Fuqua School of Business. punitive damages claim or be interpreted The result: a practicum, short on lecture as professional irresponsibility? and long on experiential learning. The allotted time elapsed, and the two After this first, single-party session, parties remained locked in conflict. Vidmar's students move on to more com­ Unlike most plaintiffs in a courtroom, plex, multi-party negotiations. The course Dayatra King was an active participant in culminates in a joint simulation that her case, frequently whispering legal pairs an MBA student with a law student, pointers, urging her attorney, Angus playing the roles of executive and lawyer­ McFadden, to hold the line on lost mediator, respectively. Students also are income and medical expenses and com- invited to create and field test their own

2 • DUKE LAW MAGAZINE SPRING 96 simulations, an exercise that Vidmar learn his fate had a determining effect on in a variety of areas. Recently, for exam­ speculates might lead to a student­ their mediation. "The parties could see ple, the PAC undertook the processing of authored case book. how scary it can be to face a jury and in claims from the Dalkon Shield litigation Vidmar believes that negotiation those few moments, I think they uncon­ (see page 18). training should not be reserved for those sciously moved closer to settling their As the Law School's focus expands headed for careers in alternative dispute own case." globally, so, too, do student opportunities resolution. "A good portion of what all Metzloff, who teaches a seminar in dis­ to explore international dispute resolu­ lawyers do is develop relationships, and pute resolution, believes that such tion. Professor Donald Horowitz weaves negotiation is central to almost any ongo­ research projects provide invaluable clin­ into his teaching, his vast and ever-enlarg­ ing relationship. A contract is signed and ical experience for students. "They see the ing experience observing and advising immediately the situation changes­ vitality of the practice of law and learn governments across the globe that are lawyers have to modify the original both the benefits and drawbacks to alter­ seeking to manage ethnic conflict. Last agreement or figure out how their client native dispute resolution." And observing spring, Horowitz traveled to Canterbury, can disengage. All this has to be negoti­ actual mediations has New Zealand, to work ated." Vidmar also notes that the grow­ given Kinz a more bal­ with a constitutional ing size and organizational complexity of anced view of alterna­ commission to develop law firms favor lawyers most skilled in tives to litigation. "When an electoral process for negotiating for finite resources. I first came to law Fiji designed to amelio­ What does it take to be an effective school," said Kinz, "I rate the rift between the negotiator? Vidmar looks to his own back­ thought the court system country's Indian and ground in psychology for some of the was totally inferior to the native Fijian popula­ answers. "Effective negotiators think about beauty of ADR. Now I've tions. In 1994, Horowitz the intangibles-emotions, egos, and face­ seen that ADR has its was part of a delegation saving. They also are good listeners who weaknesses, that some to Romania whose mis­ resist imposing their own interests and cases should be tried." sion was to stem vio­ solutions on others." According to Vidmar, Both Vidmar and lence against gypsies. novice negotiators fall prey to the assump­ Metzloff make a point of The previous year took tion that others think and feel the way stressing the limits as him to Tatarstan, south­ they do. The presence in the course of well as potential of ADR. east of Moscow, where international LLM students, who bring a Vidmar, for example, has he made recommenda­ variety of cultural norms to the table, presented research he tions about establishing helps correct this fallacy. conducted with Duke an electoral system that For one student in Vidmar's class, colleagues Ellis and would diffuse conflict Susan Kinz, the exercise must have Karla Fischer, a specialist between Tartar and looked familiar. As professor Thomas in law and psychology, that questions the Russian populations. Horowitz also has Metzloff's summer research assistant, use of mediation in domestic violence worked on constitutional reforms aimed Kinz was part of a team charged with cases where power differentials between at lessening ethnic conflict in South observing mediations involving aggriev­ batterer and victim are extreme. Africa, Nigeria, and Northern Ireland. ed patients and relatives. "The project, Like Vidmar, Metzloff stresses that These ventures provide rich case study explained Metzloff, "is part of a larger ADR is not a "niche area," but one that material for students in Horowitz's statewide initiative to redesign the struc­ infuses the entire judicial system. "When seminar in comparative law and policy. ture of North Carolina courts-our part you consider that 90 percent of all cases Cross-listed in the Political Science is to consider who should fit within this settle, it's hard to view ADR as a utopian Department, the seminar takes a decid­ new structure." Kinz and her fellow vision. It's out there now." edly interdisciplinary approach, drawing researchers visited courthouses in sever­ Metzloff, who also supervises the on fiction, sociology, and foreign policy al North Carolina counties, examining required first-year program in ethics and to crystallize the explosive potential of legal records and sitting in on mediation the legal profession, believes ethics and ethnic group relations in Asia, Africa, and sessions to determine the effectiveness conflict resolution are inextricable. "The the Caribbean. A comparative approach of court-ordered mediation in bringing program helps overcome the image of is essential, Horowitz believes, not only medical malpractice cases to resolution. lawyer as hired gun, which is neither eth­ to "explore the dimensions of ethnic con­ Kinz recalls a mediation that took ically desirable nor required." Thus, in his flict in severely divided societies," but place in a small rural courthouse on the classes, Metzloff invites prospective also to "come to grips with the prescrip­ final day of the O.J. Simpson trial. The lawyers to consider not just how, but also tive problem of what might be done about informal nature of the mediation pro­ whether to bring a claim. such conflict." ceedings prompted the parties to decide Duke students interested in dispute Horowitz's research provides some to break for the verdict. Kinz believes that resolution also benefit from Duke's clues to prevention. In Romania, he dis­ the tense moments the participants Private Adjudication Center, where stu­ covered the subtle, but devastating effect shared with Simpson while he waited to dents obtain direct practical experience of" authoritative social approval" on esca- lating violence against gypsies. The gov­ lawyer/humanitarian who coined the This is a problem because the former ernment delivered the implicit message to term genocide while teaching at Duke, Yugoslavia operated under a sort of all-or­ its police that the political costs of sup­ the University has forged a collaboration nothing criminal sentencing system. pressing antigypsy violence outweighed with Connecticut-based Save the Chil­ Convicted defendants faced either the the practical benefits. "This became a dren. Under the Lemkin Fellows program, death penalty or rather short terms of green light for violence." Horowitz also interns from a variety of disciplines deal imprisonment." Thus by abandoning the cautions his students against uncritical directly with the impact of genocide on death penalty, conclude Cors and Fisher, loyalty to American paradigms. When children. Currently, Lemkin Fellow the tribunal must grapple with a commit­ Nigeria sought to institute an electoral David Archey is spending a year in Kigali ment that has boxed them into inappro­ college similar to that of the United on leave from his studies at the Law priately mild sanctions. When they States, Horowitz recommended an alter­ School. A veteran of Peace Corps service publish their research, Cors and Fisher native model in which geography served in Chad, Archey is part of an interna­ hope to benefit future tribunals as they as a proxy for ethnicity. tional, interdisciplinary team confronting seek just and consistent remedies. With Horowitz, students examine the problem of how the Rwandan judicial Another '96 graduate, Greg Mose, is ways to avert ethnic system should respond investigating violation of international violence. In Madeline to genocide involving laws prohibiting destruction of cultural Morris's classes, they children as perpetrators. property. His research focuses on the face the dilemma of One particularly grisly selective despoiling of churches as a con­ determining how gov­ aspect of the Rwandan sequence of religious and ethnic conflict ernments should react to cataclysm was the in Bosnia. Mose expects to publish his ethnic violence ex post recruitment of young findings in an upcoming issue of facto. Morris is engaged adolescent boys into the the Duke TournaI of Comparative eJ in a comparative study death squads charged International Law. of legal responses to with carrying out some Can there be justice after genocide? mass scale crimes of the war's most har­ Duke law students and faculty will have against humanity. She rowing slaughter. Archey the chance to explore this wrenching has gone to Kigali, is helping the interna­ question in July 1996 at a symposium in Rwanda, where the tional tribunal frame Brussels that will draw experts in inter­ courts face the stagger­ an appropriate response national criminal prosecutions from ing task of prosecuting to this crisis in juvenile across the globe. Duke law professor more than 60,000 large­ justice. Madeline Morris is organizing the event, ly Hutu defendants In addition to their "Justice in Cataclysm: Criminal Tribunals charged with massacring class and field work, in the Wake of Mass Violence." Among millions of Tutsis. Morris Duke law students also the speakers and panelists will be Richard will focus on establish­ are involved in research Goldstone, prosecutor for the Interna­ ing alterna ti ves to cos t­ and publication related tional Criminal Tribunal for the former ly and time-consuming to international facets Yugoslavia and Rwanda; Girma Wakjira, traditional litigation and of conflict resolution. chief special prosecutor for the Republic sentencing. "This is particularly chal­ Supervised by Morris and her colleague, of Ethiopia; Alexander Boraine, vice chair lenging in a country with a civil-law sys­ Benedict Kingsbury, an international law of the South African Truth and Reconci­ tem and no history of plea bargaining," specialist, Duke law students Dylan Cors liation Commission; and Michael Scharf said Morris. "And add to this a decimat­ and Siobhan Fisher, and Rob Plowden '96 '88, assistant professor at New England ed court system in which 80 percent of conducted research designed to help the Law School. the country'~ judges were either killed or courts mete out punishment to those con­ In offering exposure to conflict resolu­ fled the country, and the urgency of find­ victed of war crimes in Bosnia. After tion within domestic and international ing alternatives to traditional litigation devoting months to mastering the politi­ contexts, the Law School hopes to prepare becomes compelling." Given the magni­ cal landscape of the former Yugoslavia graduates for legal careers in both tradi­ tude and motive behind the genocide, and the rudiments of Serbo-Croatian, tional and nontraditional settings. But Morris emphasizes that sanctions not Cors and Fisher spent the past summer in even before this range of opportunities become too lenient. "There's something Belgrade and Zagreb, mining archives rel­ was available, some Duke law graduates particularly chilling about taking a whole evant to both national and international forged their own paths in alternative dis­ people and saying you don't deserve to criminal law. pute resolution, as the following profiles inhabit the earth." "We found that because there are few illustrate. Duke law faculty and students are international norms, the tribunal agreed to LucyHAAGEN involved in other aspects of healing the respect the laws of the former Yugoslavia, /I rifts caused by genocide. In commemora­ explained Corso "But the tribunal also tion of Rafael Lemkin, the international removed the death penalty as an option.

4 • DUKE LAW MAGAZINE SPRING 96 fidentiality," said Sgrosso. He also considers the company caught developing wetlands and a For Yin Sgrosso, an interest in alternative creative ability to generate multiple options regulatory agency. "We were able to convince dispute resolution developed gradually over vital to gaining a viable solution. When suc­ the parties to negotiate trade-offs that enabled the course of a career as general counsel for cessful,Sgrosso believes,"mediation has got to the company to complete its project, while BellSouth. "Many be better justice than litigation because par­ limiting environmental impact," said Coughlin. times in resolving ties are fashioning their own agreements." Coughlin emphasizes the variety of talents a disputes with the mediator must possess."Charisma is a huge fac­ union," said Sgrosso, tor. Parties must feel a sense of identity with the "we turned to Like Yin Sgrosso, Pat Coughlin came to medi­ mediator from the outset." Coughlin also be­ arbitration. When ation with extensive experience in a traditional lieves that "neutral" is really a misnomer for the you've got a com­ legal setting. But unlike Sgrosso, his transition effective mediator. "People want an evaluative pany to run, you was epiphanic rather than evolutionary. As mediator, not just a facilitator. They want you to often need a quick managing partner in a large Los Angeles law call it as you see it-to know what you see as decision. Take the firm, Coughlin found himself dismayed at the the strengths and weaknesses of their case." case of a contested increasingly adversarial nature of litigation and Coughlin's mediation practice has brought firing. No one its incentive system. "Are we crazy, I thought, him into close touch with Duke. A member of benefits from a paying people for how much time they're tak­ the board of directors of the Durham Dispute prolonged state of ing, rather than for their skill or effectiveness." Settlement Center, Coughlin also credits the irresolution during At the same time, Coughlin found himself turn­ growing national reach of his practice to the which back pay ing more frequently to negotiation at the Duke law alumni network. builds and ongoing behest of his Pacific Rim clients. He operations suffer." was particularly influenced by Akio But even more intriguing to Sgrosso than Morita, president of Sony, who straight arbitration, long a feature of labor rela­ Coughlin remembers as chiding, "We Anne Claussen took a tions, was mediation, increasingly a component have as many lawyers in all of Japan as long time to decide of management-union negotiations. you have in Palm Beach." between graduate In 1989, with retirement in mind, Sgrosso In the mid-I 980s, Coughlin left Los school in psychology set about becoming an American Arbitration Angeles and his legal practice for and law. Though Association-certified mediator/arbitrator, Portland, Maine, where he acquired she opted for law, taking practicums in both civil and domestic several real estate related businesses Claussen knew she cases and specialized training in "lemon law" and a children's camp. In 1988, with would never practice negotiation. Since his retirement in 1994, he the connections and capital gained in a large metropoli­ has served as a neutral in a variety of cases, from his foray into business, Coughlin tan firm. Upon gradu­ including one in which he found himself faced started a mediation firm. "It was ation, she sought out with test-driving a car alleged to have mal­ rough-gOing finanCially at first;' said a small firm in a livable functioning brakes. Coughlin, who estimates that it took community. But even Though Sgrosso has been impressed by the three years to establish a viable enter­ after three successful effectiveness of mediators and arbitrators prise. In a risk that paid off, Coughlin years practicing envi­ from a wide variety of professions, he believes merged with two other northeastern ronmental law in Tallahassee, Florida, she real­ that a legal background is a definite advantage. providers to form Conflict Solutions, a full-ser­ ized she didn't want to continue in the private "As a lawyer, I have a certain credibility and can vice mediation, arbitration, partnering, and practice of law, however congenial the setting. talk to my client with some authority about training firm with a national reputation. "The law firm was great, but I really want­ the costs of going to court." Sgrosso is quick Coughlin and his four partners handle a ed to be representing the public interest," said to add that negotiation requires a host of skills range of cases from construction contracts Claussen That realization led her to the Florida from a variety of disciplines, as well as some and real estate transactions to divorce and Treasurer's Office, where she served as a legal innate instincts. "A good mediator must be personal injury suits. Some of his more inter­ adviser on environmental issues. While in the able to establish rapport quickly with each esting work has come in the environmental Treasurer's Office, she took the courses and party to demonstrate both neutrality and con- arena. Recently, he settled a case between a completed other requirements to become

PERSPECTIVE DUKE LAW MAGAZINE • 5 certified as a family court and circuit court ing is crucial to a mediator's credibility. But she Solutions, an Atlanta-based consulting firm.The mediator in Florida. The training proved use­ also finds herself using human skills gained in firm is devoted to helping clients improve pro­ ful when Hurricane Andrew struck, spawning her prelaw career as a teacher. "An effective ductivity and profitability through a proactive a volume of insurance disputes and a legallog­ mediator has to get a feel for when a person approach to business disputes. In approaching jam that threatened to overwhelm the state's is approaching the point of no return and be potential clients, Benne stresses the time and courts.When Florida responded by instituting able to diffuse explosion," said Claussen. "You money saved by avoiding litigation, citing an a mediation program, Claussen volunteered to must be able to help people get their needs and automobile manufacturer that resolved 68 assist with the program. desires out on the table without sympathizing percent of customer complaints before they "Mediation was immediately attractive.The too much or making them feel patronized." reached litigation. She also notes the positive peacemaking aspects appealed to me," said correlation between in-house conflict man­ Claussen. "I never really enjoyed litigation; my agement programs and customer retention. tendency has always been to try to help peo­ Caroline Guthrie Benne came to Duke Law Unlike many mediation firms, Partnership ple work th ings out." A year after becoming a School knowing she wanted to pursue a career Solutions does more than provide mediators trained mediato r, Claussen left the Treasurer's in mediation. Before applying to Duke, Benne and arbitrators to clients. Benne and Lake Office in 1993 to launch a private mediation worked for the Saturn Corporation, where believe their special niche is providing training practice. Shortly thereafter, she took a part­ during her last year and a half, she set up a dis­ for managers to establish their own permanent time job as mediation coordinator for Florida's pute resolution program for the firm's fran­ programs. A key feature of such programs is the Second Circuit and currently balances the two chisees. Inspired by the project, Benne sought use of an ombudsman. According to The Wall positions. Claussen recently adopted an 8-year­ advice on careers in ADR. Those she Street Journal, use of ombudsmen at medium­ old daughter from Russia, and the prospect of consulted-attorneys and executives alike-­ sized and large companies has more than dou­ parenthood on a single income makes the two­ stressed the need for graduate management bled in the past five years, largely in response to job approach an economic necessity for her. and legal training. Undaunted, Benne chose to a rise in employee discrimination cases. Claussen has completed approximately invest four years in aJD/MBA and found Duke's Ombudsmen, the majority of whom are not 1,000 mediations. As an environmental lawyer joint degree program particularly attractive. lawyers, function as sounding boards for employ­ living in a fragile setting, she has Benne credits the ee complaints ranging from sexual harassment mediated a number of natural Fuqua School of Business to pay disputes."Such a neutral party is a confi­ resource cases. Recently, she with giving her positive dential resource for someone who thinks they brought landowners and environ­ exposure to collabora­ are experiencing discrimination ," said Benne. mentalists to the table to resolve tive problem solving."You "They help the employee figure out if they want a dispute involving cougars with an really learn how to man­ to bring a more formal complaint" appetite for local livestock. The age conflict when you Somewhat in jest, Benne describes the largest proportion of Claussen's have been sitting in a tiny fledgling enterprise as a "virtual company." work comes in resolving family room for I0 hours work­ From their small office , Lake and Benne, the conflict, particularly related to the ing on a team project," firm 's only two permanent employees, can aftermath of divorce. Claussen said Benne. At the Law call upon a network of 20 associates trained finds this sphere both her most School, she found the in different areas to provide a wide range of challenging and rewarding. "I urge case study/simulation services. Like other entrepreneurs, Benne my divorce clients with children to approach in her negotia­ admits to being somewhat scared by the remember that divorce does not tions class useful prepa­ risks associated with starting her own com­ end a relationship. I remind them ration for anticipating pany. "But I love the flexibility and being the that years from now, they will be issues and cl ient respons­ person who makes things happen, rather grandparents together." And for es. Equally valuable was a than just a provider of underlying support Claussen, and others in the field , th is situation course on ethics in the civil system taught by as I would be as an employee in a large exemplifies why mediation is the preferred professor Thomas Metzloff. organization." solution in instances of an ongoing relationship. Out of Benne's joint degree experience Like her fellow Duke law graduates, Sgrosso came a joint venture. In 1995, Benne and Fuqua and Coughlin, Claussen believes that legal train- graduate Jana Dean Lake founded Partnership

6 DUKE LAW MAGAZINE SPRING 96 I Thomas B.Metzloff '.,;l1.I+.h,

Those interested in alleviating problems It is important to remember that unlike with the current litigation system for other ADR mechanisms, arbitration is medical malpractice cases have long sug­ not a process designed to promote volun­ gested the use of binding arbitration. tary settlement. Rather, it is an alterna­ Indeed, the very first governmental report tive method of reaching a decision on the on malpractice written in 1973, just merits of the case. In addition, the parties before the first malpractice crisis erupt­ to an arbitration have substantial power ed, included a reference to arbitration as to determine for themselves the particu­ ARBITRATING a "better way" to handle malpractice lar details of the arbitration procedure. MALPRACTICE cases, even though there was no evidence Procedural variables relating to the con­ DISPUTES that it would be an improvement. During duct of an arbitration hearing include, the first malpractice crisis among others: the length of the arbitra­ in the 1970s, a number of tion hearing, the number of arbitrators, state legislatures suppos­ the required qualification of arbitrators, edly provided some im­ the process for selecting arbitrators, and petus to arbitration by the amount of discovery permitted to be enacting malpractice spe­ conducted. Significantly, arbitration does cific statutes designed to not change the basic tort theory of liabil­ facilitate its use. ity; most arbitration clauses require the What does arbitration arbitrators to apply the applicable sub­ potentially offer? For its stantive law. To be sure, however, arbi­ proponents, arbitration trators are not subject to the same level offers several benefits, of appellate review as judges and, thus, including the use of more might have greater flexibility to ignore qualified decision makers. specific substantive law requirements. Many arbitration advo­ Yet, it is clear that, to date, few mal­ cates question the ability practice cases have been resolved through of lay juries to decide arbitration. In other litigation contests, complex malpractice dis­ such as securities and construction dis­ putes and have looked to putes, arbitrations have become routine. alternative dispute reso­ But for malpractice, arbitration remains lution (ADRI to provide a an exception to the norm of traditional more qualified decision litigation heading towards trial by jury. maker. Proponents also For example, in Michigan-a state that regularly cite arbitration's made a concerted effort to promote mal­ potential to reduce the practice arbitration-a recent study indi­ high costs associated with cated that during a 13-year period, only the current litigation sys­ 247 malpractice disputes out of a total Thomas B. Metzloff tem. Malpractice litigation is undoubt­ pool of approximately 20,000 claims were is professor of law and edly expensive. If administered properly, arbitrated. In another study of all mal­ director of the PAC's arbitration offers the potential for signif­ practice claims closed in 1984, the U.S. Medical Malpractice icantly shorter "trial" time. Arbitration General Accounting Office (GAOl esti­ Research Project. hearings can be shorter than trials, in mated that well less than 1 percent of This article is adapted part, because there is no need to select, malpractice claims were arbitrated. from his article instruct, or manage a jury. In addition, The Unrealized conflicts over evidentiary issues are min­ Why Hasn't Malpractice Potential of Malpractice imized because arbitration hearings are Arbitration Become Predominant? Arbitration, 3 I Wake typically less formal than a jury trial. In What combination of legal, social, struc­ Forest L. Rev. 205 addition, arbitration hopefully reduces tural, and political factors explain this (1996). the amount of discovery required. failure? The differing explanations cannot Traditional malpractice litigation takes all be simultaneously true. For example, an emotional toll on the parties, particu­ it cannot be the case that an arbitration larly the doctor accused of malpractice. system, on the one hand, is inherently Physicians perceive suits as allegations of derogatory of patients' rights, while, on almost criminal misconduct. Arbitration the other hand, it is likely to result in an reduces the emotional drain by being explosion of successful and lucrative more private as well as less lengthy.

PERSPECTIVE DUKE LAW MAGAZINE • 7 awards to plaintiffs. The combination of tration agreement will be enforced only if cases and are often successful in either these explanations reveals the difficul t the claimant's consent occurs after the narrowing the issues or resulting in out­ challenges that lie ahead for developing date of the physician's alleged negligence right victories for defendants. While arbi­ arbitration programs in the current mal­ and only if the patient has consulted with tration forums must provide some practice climate. an attorney. A statute that truly promotes mechanism to resolve discovery disputes, Judicial Hostility and Legal Uncertainty: malpractice arbitration would simply the procedures for such matters are not Conventional wisdom says that part of need to announce that the public policy well understood. Additionally, in arbitra­ the lack of use of arbitration is a function of a particular state was tion there is no clear of judicial hostility to malpractice arbi­ to encourage the use of analog for a summary tration. To be sure, there are cases from arbitration under the judgment motion. Instead, the mid-1970s and 1980s relying on such same flexible rubric the norm is that the mat­ contract notions as the unconscionabili­ that defines the Federal ter proceeds to the arbi­ ty doctrine to void or significantly modi­ Arbitration Act. tration hearing where fy malpractice arbitration agreements. Comfort with the Cur­ non-meritorious cases One of the supposed benefits of arbitra­ rent System: Malprac­ will be so adjudged. De­ tion is to avoid prolonged preliminary dis­ tice insurers and defense fenders might also value putes. If plaintiffs can routinely challenge counsel are clearly repeat procedural rules designed the validity of an arbitration agreement players in the li tiga tion to sanction attorneys or on a case-by-case basis, a major advantage system. As such, they parties for filing non­ of arbitration has been denied. are cognizant of the meritorious claims; arbi­ Regardless of the degree to which many potential advan­ trators rarely engage in these early cases interfered with the tages that the litigation such considerations. development of arbitration, an argument system affords to mal­ The Lack of Empirical could be made that recent U.S. Supreme practice defendants. Thus, Information: Those Court cases, such as the recent decision while physicians might interested in using arbi­ in Allied-Bruce Terminix Companies, Inc. be highly critical of juries, tration have not received v. Dobson, and state cases authorizing the insurers and defense any impetus from empir­ routine use of arbitration have removed counsel might be less so. ical studies showing that any real doubt about the availability of Aware of the results that the perceived benefits of arbitration even in the malpractice con­ doctors fare well before juries, insurers arbitration are in fact attainable. text. Nonetheless, issues about the basic and defense counsel are understandably Empirical research on the impact of arbi­ validity of malpractice arbitration con­ reticent about trading the known quanti­ tration on malpractice cases is sparse pri­ tinue to be raised. Recently, the Cali­ ty of the current litigation system for marily because so few malpractice cases fornia Supreme Court granted review of a what is the unknown of arbitration. This have been submitted to arbitration. case that challenges the underlying legal­ comfort level is not necessaril y nefarious; Empirical analyses of tort reform mea­ ity of the arbitration program operated by it is, in part, simply a recognition that the sures generally have found that the exis­ Kaiser Permanente, the acknowledged current system provides extensive oppor­ tence of a malpractice arbitration statute leader in requiring malpractice arbitra­ tunities for defendants to obtain the vin­ did not have a significant impact. tions. Other courts continue to entertain dication that many physicians seem to The scant evidence that does exist sug­ claims that malpractice arbitration claus­ desire. By the same token, malpractice gests that the arbitration process is not es are unconscionable under particular insurers are in a better position than inherently pro-physician as some have facts indicating overreaching by health patients to use the expense associated contended. A recent study by the GAO, care professionals. with the current litigation system to cre­ for example, found that plaintiffs pre­ State Statutes Designed to Promote ate incentives for plaintiffs to drop cases vailed slightly more often in arbitration Arbitration Did Nothing of the Sort: In or settle cheaply. than traditional litigation and that the retrospect, many of the malpractice-spe­ Need for Judicial Involvement: Mal­ process was less time consuming. Sur­ cific arbitration statutes based during the practice defenders also appreciate the prisingly, however, the GAO study found first wave of malpractice "reform" mea­ high level of involvement that malprac­ that the average cost to the litigants of sures in the 1970s did little to promote tice cases collectively have within the resolving the cases was comparable, and the use of arbitration. In Michigan, for court system. Many of the procedural not cheaper as expected. example, the malpractice arbitration tools available through the court system There is at least one HMO that has statute details the specific form that provide physicians with strategic advan­ extensive experience with arbitration over arbitration hearings must follow, thus tages. For example, one benefit of having an extended period of time. Kaiser Per­ defeating one of the advantages of arbi­ cases proceed in court is the availability manente Health Maintenance Organiza­ tration-party control over a flexible pro­ of the judge to resolve discovery motions tion has used arbitration as the exclusive cedure. Georgia's provision is even more or motions for summary judgment. Such remedy for its subscribers in California restrictive in that the malpractice arbi- motions are common in malpractice since the mid-1970s. To date, however,

8 • DUKE LAW MAGAZINE SPRING 96 Kaiser has not permitted a detailed analy­ Many academics see arbitration, even were ineffective in impacting the culture sis of the outcome of its experience. More if done well, as little more than a band­ or reality of malpractice litigation; indeed, general accounts suggest that arbitration aid that would cover up the far more seri­ several states have recently abandoned leads to quicker results and that plaintiffs ous shortcomings. Most would prefer their programs. achieve similar or even better results than significant reform of the controlling lia­ Proponents of Other ADR Forms: Even in the trial system. By the same token, bility principles often towards some those who are ADR evangelists do not without more rigorous empirical scrutiny, aspect of no-fault compensation. necessarily support the use of binding these generalized assessments lack any Understanding Policy Priorities: arbitration. For example, one area of rapid predictive force. Policy leaders within the medical estab­ growth in the ADR field is the develop­ Fundamental Flaws of the Litigation lishment have not made arbitration, or ment of court-sponsored ADR programs. Process: Arbitration in and of itself does ADR for that matter, a priority in recent Concerned with burgeoning dockets, not radically change how a dispute is years. It is a relatively low-level concern numerous state and federal courts have litigated apart from the identity of the among those interested in pursuing tort initiated mandatory, non-binding ADR decision maker. Discovery might be reform options. As a policy choice, arbi­ procedures. Such ADR initiatives have somewhat limited and the hearing itself tration must be considered in a political the advantage of not engendering active is hopefully shorter. But beyond such tin­ context in which a host of policy alter­ opposition from patient advocates since kering, the use of an arbitration format natives are being simultaneously consid­ these programs are non-binding, meaning does not usually alter many of the proce­ ered. Put simply, the American Medical that the plaintiff can obtain a traditional dural elements that malpractice defend­ Association (AMA) is, at this point, more jury trial if desired, and because they fall ers find objectionable. For example, interested in establishing meaningful under the supervision of the court. arbitration is not thought of as a means caps on damages than it is in developing Still others who believe in the desir­ to limit plaintiff's attorneys' contingency ADR programs. ability of litigation alternatives would fees, to impose more effective offer of set­ Perceived Failure: Defenders have rather invest their time and energy not in tlement rules, or to develop more elabo­ been turned off from pursuing arbitration arbitration, but in alternative systems rate cost-shifting mechanisms. by the perceived past failures of ADR seeking early identification and resolu­ Nor does the use of arbitration in and efforts in alleviating the problems of mal­ tion of potential claims. Such approach­ of itself solve the uncertainties inherent practice. The foremost example is the es would rely on the use of mediation in the process of determining pain and experience of states that adopted, at the rather than arbitration. The mediator's suffering. To be sure, it changes the deci­ urging of the medical profession, "pre­ role is primarily to facilitate the parties' sion maker, moving from trial screening panels" understanding of the nature of the dispute a panel of jurors to an for medical malpractice and to explore practical solutions, even if arbitrator or panel of cases in the mid-1970s. those solutions are not necessarily arbitrators. But without These early ADR proce­ required by applicable substantive law some additional change dures typically required principles. The challenge of ADR is learn­ in the applicable sub­ plaintiffs to submit their ing how to choose intelligently among a stantive law to be claims to a special panel, range of procedures-to "fit the forum to applied, the arbitrators often composed of a the fuss." Each of the different procedures must make the same physician, attorney, and might be better suited to certain types of subjective determination lay member. The panels malpractice disputes. If true, then realiz­ about the value of non­ issued non-binding deci­ ing the full benefits of ADR requires a economic damages as are sions which would, in careful matching of specific malpractice made by jurors. While theory, convince the disputes with the particular ADR process some would argue that parties either to drop or best sui ted to that case. arbitrators are less likely settle the claim. A com­ Letting the Genie Out of the Bottle: to make a runaway award mon criticism of the The malpractice insurers' lack of interest of the type that juries are panels is that they were also represents a concern that if a truly occasionally accused of administratively cum­ expedited process for asserting malprac­ making, a counter-argu­ bersome and that they tice claims were established, the number ment exists that because often led to long delays. of malpractice claims would skyrocket. It of their own higher Other concerns were is generally thought that health care incomes and sophistica­ that the process came providers would be the beneficiaries of tion, arbitrators may too early in the evolu­ arbitration, based in large part upon the tend to award more tion of the claim before fact that those providers were the ones money in certain cases the parties had conduct­ who initially raised the idea. This sim­ because they value interference with the ed sufficient investigation. The conven­ plistic notion is no longer uncritically enjoyment of life in greater absolute dol­ tional wisdom is that these panels, which accepted. The interest in developing bind­ lar terms than lay jurors. looked something like arbitration panels, ing arbitration has no doubt been cooled

PERSPECTIVE DUKE LAW MAGAZINE • 9 by recent evidence of the large, currently the current system hardly operates to the After reviewing the lengthy list of rea­ untapped pool of potential malpractice benefit of patients? Certainly, as noted sons, it should hardly come as a surprise claims. Arbitration could solve that prob­ above, there is no valid empirical basis for that malpractice arbitration has largely lem by providing a quality system that plaintiff advocates at this point to tar and been a non-starter. Among those who lit­ would quickly deal with what was a large feather malpractice arbitration. Upon igate malpractice cases day to day, there cohort of nonmeritorious claims. The reflection, it is no wonder that the pub­ is no common understanding that the Harvard study changed the perception­ lic's perception is that arbitration is a current system has failed. Lacking a clear the real situation is not that there are too loaded pistol being aimed at its head by empirical basis for believing that arbitra­ many claims being asserted, but in fact physicians given how the issue has been tion would be better, why face the hassles too few. Moreover, the available empiri­ presented. The primary proponents of of legal review to force arbitration down cal evidence did not support the claim malpractice arbitration have been mem­ the throats of patients who apparently that plaintiffs routinely won their cases. bers of the medical profession who, at the believe that arbitration is a bad idea? In This insight logically requires rethinking same time as they tout arbitration, have reviewing the list, however, there is one of the premise of arbitration as a means been forwarding a panoply of other tort important truth. Despite conventional primarily of limiting the filing of non­ reform options such as caps on damages wisdom, there is no clear understanding meritorious suits. If an effective and effi­ or other measures to restrict access. It has that arbitration is demonstrably "better" cient arbitration system were in fact not been presented as a neutral and for physicians. Indeed, some of the rea­ developed, plaintiffs now excluded from informed suggestion for improving the sons why there has not been greater use the current system might overall quality of how of arbitration is the suspicion that arbi­ find it easier to file and malpractice disputes are tration would benefit plaintiffs in a num­ pursue claims. resolved. In the simplis­ ber of important ways. As a result, in "Splitting the Baby" tic nature of the tort looking to the future, there is no reason Concerns: Some mal­ reform debates, patient based upon the present record to assume practice defenders do not advocates are against it that arbitration is somehow inappropri­ have sufficient faith in the because doctors are for ate or inherently unfair in the malprac­ process of arbitration to it; arbitration has become tice context. Its possible virtues should seek routine submission a prisoner of war. The be considered unencumbered by the ill­ of malpractice disputes. general suspicion with informed claims and counterclaims made Anecdotal experiences which consumer groups in the heat of "tort reform" battles. have served to give them view arbitration also is serious pause. Perhaps based on the fact that The Future of the most widespread contractual relationships Malpractice Arbitration concern is that arbitra­ of this sort are not nec­ In looking towards the future, one is con­ tors tend to make com­ essarily limited to proce­ fronted by a number of questions about promise decisions that dural as opposed to the possible role of arbitration. If one do not fully vindicate substantive law changes. accepts a broad view of patient interests­ their clients' interests. They are concerned that one that focuses not just on those slight Especially in malpractice arbitration clauses will minority of patients who currently have where physicians are be used as a front to a malpractice claim-is arbitration a good often interested in vindi­ mask more direct assaults idea? As a policy matter, should its use in cating their conduct, the upon plaintiffs' rights. malpractice be tolerated or indeed perception that arbitra­ Certainly, there are encouraged? Is there anything unique tors "split the baby" rep­ those who advocate the about malpractice cases that make them resents a serious potential difficulty. use of private contracts as vehicles for inappropriate for arbitration? What arbi­ Another widely-held notion about arbi­ altering legal rules in this area. trator qualifications should be most tration is that it can be just as expensive Another factor is the role played by sought after in forming panels? Will arbi­ as regular litigation. Other anecdotal plaintiffs' counsel who serve as spokes­ trators be as willing as juries apparently accounts criticize arbitrators who step in people, almost by default, for the inter­ are to award defendants outright victories to help unprepared plaintiffs or who feel ests of patients. It is generally assumed, when they perceive the case to be non­ compelled to make some award to a plain­ for example, that plaintiffs' attorneys are meritorious? Will they be as able or bet­ tiff regardless of the proof offered. suspicious of arbitration and desire ter than juries when it comes to valuing Anti-Arbitration Sen timent: Plain­ strongly to have a jury. As a result, plain­ meritorious claims? Will malpractice tiffs' advocate groups continue to strong­ tiffs are likely to challenge arbitration arbitrations in fact prove to be more cost­ ly oppose the use of binding arbitration in agreements vigorously, and such chal­ efficient than traditional litigation? Will most contexts, including medical mal­ lenges would defeat a central benefit of arbitration deal more effectively with the practice. Why is this position held so arbitration, namely, expedited resolution special challenges of using experts? strongly despite the clear evidence that on the merits.

10 • DUKE LAW MAG AZI N E SPRING 96 These questions cannot at this time be compromise awards, the agreement pro­ process employing neutral arbitrators can answered with any confidence. Nonethe­ vided for the three arbitrators to deliber­ indeed make decisions on the merits and less, my opinion is that arbitration, if ate separately and render separate awards. thereby avoid the "compromise" mental­ well-administered, can be a particularly In two cases, the parties agreed to limit ity that has led some to eschew the arbi­ effective dispute-resolution method in their use of adversarial experts in favor of tration process. In most of these cases, I malpractice. This conclusion is based neutral experts jointly attended all or part of upon my own involvement through the paid for by the litigants. the arbitration hearings Duke Private Adjudication Center coor­ The hearings were and reviewed the rele­ dinating malpractice arbitrations. clearly far less lengthy vant documents. In each In 1987, the Private Adjudication than trials. On average, case, based upon my Center received a grant from the Robert the hearings lasted one own experience in the Wood Johnson Foundation to study the day or less; the longest field of professional potential of alternatives to litigation in was only two-and-a-half responsibility, myassess­ the context of medical malpractice cases. days. Moreover, the costs ments matched the deci­ The grant involved two major efforts: the associated with the pro­ sion of the arbitrators. evaluation of the current litigation sys­ cess were modest because The remaining 12 tem and direct efforts to facilitate the use quality arbitrators were cases were "damages of alternatives. With respect to the sec­ available for a fee of only" cases in which the ond objective, our goal was to facilitate between $100 and $125 parties submitted to the the use of various forms of ADR in a large per hour. The parties also were charged arbitrators only the issue of damages. In number of medical malpractice cases. an administration fee of about $500 per most of these cases, the defendant did not Experiences with Mal practice case to reflect our efforts in setting up the expressly admit liability, but rather Arbitration: Working under the auspices arbitrations and assisting the parties. This "accepted responsibility" for the injury. of Duke Law School's Private Adjudication rate was subsidized by the grant from the The fact that the issue turns only on dam­ Center, I have, during the past five years, Robert Wood Johnson Foundation. ages does not always mean that no med­ worked closely with malpractice litigants These 19 arbitration cases were, of ical issues are presented. In many of these in discussing the voluntary use of binding course, not randomly selected, thus no disputes, difficult causation issues remain. arbitration. Some of the discussions were empirically-based conclusions can be Typical is the question as to whether the largely perfunctory with one party seeking drawn from the results. Nonetheless, plaintiff's injuries are a result of the neg­ general information on what arbitration some important points may still be made ligence (which is assumed) or rather the might offer. Most discussions were more in reference to some of the assumptions natural consequence of the plaintiff's elaborate, but not always fruitful. There about arbitration discussed above. underlying illness. All but one of these were numerous cases in which one party Included in the 19 cases were seven cases involved a "high/low" agreement in was seriously interested in arbitration only cases in which liability was at issue. In which the parties established maximum to have the other side, or a co-party, refuse six cases, the defendant prevailed; in only and minimum recoveries to minimize the the offer. In 19 cases, however, the discus­ one of the cases did the plaintiff clearly risk associated with overly generous or sions led to an agreement about the use of prevail. In one of these six cases, the lia­ restrictive awards. binding arbitration. The disputes ranged bility issue was submitted to three arbi­ The results in these 12 cases clearly from relatively minor cases involving less trators who returned separate decisions favored plaintiffs. Of the 12 cases, seven than $100,000 in damages, to two multi­ without deliberating. One of the three were close to or exceeded the "high" fig­ million dollar disputes involving sharply arbitrators returned an award finding lia­ ure of the agreed upon "high/low" contested issues of liability. These cases bility and entered a small award for dam­ amount. The defendant clearly prevailed, provide an overview of the inherent ages, but the other two found no liability. defined as obtaining a result close to or flexibility of the arbitration process; the Does this indicate that arbitration is below the "low" in the "high/low," in parties in many cases developed unique somehow biased against plaintiffs? In only three cases. Of these, two of the approaches. For example, numerous fact, this rate of plaintiff victory in con­ three defendant victories were in small approaches were developed for the selec­ tested liability cases is about the same as stakes cases. As noted above, one of the tion of arbitrators. In no case were any arbi­ the plaintiff success rate in jury trial concerns with arbitration is the perceived trators directly selected by one party; all cases. Moreover, one must also consider tendency of arbitrators to "split the dif­ arbitrators were "neutral" arbitrators even the possibility of a selection bias. Some ference." Such an effect was not notice­ though, in most cases, the parties had sig­ of the cases in this group appeared to be able in these awards. Only two of the 12 nificant input into who would be selected. relatively weak cases where the plaintiffs' "damages only" awards were in the The nature of the decision-making attorneys were willing to submit to arbi­ middle of the "high/low" award ranges. process was also a point for creative tration rather than undergo the greater As a matter of policy, the Private thinking. In one case, in an effort to over­ expense associated with a trial. My inter­ Adjudication Center does not inform the come what one party believed was an pretation of the results in these cases is arbitrators of the "high/low" agreements, inherent tendency for arbitrators to reach that it demonstrates that an arbitration thus ensuring that the arbitrators cannot

PERSPECTIVE DUKE LA W MAGAZ I N E • intentionally chose to split the difference. providers who would agree up front with What else should arbitration provide These results lend some credence to the all patients within the organization to a that would make it better suited to concern expressed by set dispute resolution the malpractice context? Flexibility in some malpractice system. The key is not to administering malpractice arbitrations is insurers that arbitra­ significantly encumber a virtue. There is no one ideal length or tion may in fact not the ini tial decision to approach. Rather, some degree of indi­ result in lower awards; employ arbitration, but vidualized design is appropriate for many although with reason­ ra ther to think more malpractice disputes. Moreover, flexibil­ able "high/low" agree­ seriously about what ele­ ity should also be encouraged to permit ments, runaway awards ments will maximize the the parties to employ other ADR meth­ can be prevented. fairness and quality of ods (perhaps most notably mediation) in Collectively, these the arbitration process. appropriate cases. 19 cases demonstrate If consumer protec­ tha t if adminis tered tion measures of the type Conclusion carefully, arbitration can previously used are not Having researched both the litigation be an efficient process. appropriate, what should and arbitration processes in the The average duration be done to ensure the malpractice context, I have become con­ of the arbitrations was quality of the arbitration vinced that well designed and adminis­ about six hours. In program? As I have tered arbitration systems would provide the damages-only cases, argued elsewhere with several advantages over traditional liti­ most of the cases were my colleague Clark gation. The primary benefits include resolved following hear­ Havighurst, the key is quality of the decision maker and speed ings that lasted four in providing statutory of resolution, with its attendant poten­ hours or less. Even in safeguards to ensure the tial reduction in litigation expenses. In the most complex mat­ quality of the arbitration expressing this preference, it is impor­ ter, the longest arbitra­ procedure itself. On this tant to point out that the potential ben­ tion was two-and-a-half point, the most impor­ efits accrue both to physicians and to days in a case in which the parties esti­ tant factors are the neutrality and quali­ claimants who often are unable to access mated that trial of the matter would have fications of the arbitrator. Also important the system because of its exceptionally been a minimum of three weeks. is requiring that malpractice arbitrations high administrative Decisions in the cases were reached be administered by a costs. A flexible arbitra­ promptly, usually within two or three neutral entity that tion program using days of the arbitration hearing. No possesses appropriate other ADR methods in appeals were filed on any of the decisions; expertise. Ideally, an appropriate cases, quali­ payments were usually made within a ADR provider handling fied decision makers, week of the receipt of the award. a complex matter such and perhaps neutral as the typical medical experts would be as Effective Arbitration: It is commonly malpractice case should, likely-and indeed in argued that the key to effective protection at a minimum, have my view more likely­ of patient interests is the inclusion of var­ demonstrated expertise to generate reliable ious "consumer protection" provisions in administering ADR and consistent results within arbitration clauses. Such clauses procedures; employ at a significantly lower would require clear notice to patients methods of selecting cost than the current about what rights they are waiving or arbitrators that insure system. III would insist that arbitration clauses not their neutrality and be a condition of medical treatment or competence; disclose that they be revocable. In my view, such funding sources; and standard consumer protection add-oilS are develop a set of counterproductive. To the extent that appropriate procedures. they increase the transaction costs asso­ Legisla tion to ensure ciated with entering into valid arbitration such attributes (as agreements, they primarily serve to deny opposed to limiting the the potential benefits associated with use of arbitration) would arbitration. More importantly, as one be welcome as the type looks toward the future, the likely growth of a new generation of area of arbitration relates to managed care reforms needed to improve the situation.

12 • DUKE LAW MAGAZIN E SPRING 96 I Thomas D.Rowe, Tr 'alilJa,'ih,

Proposals to modify Federal Rule of Civil settlements by eliciting reasonable offers Procedure 68 keep appearing in response early and giving offerees incentives to to various perceived civil litigation prob­ consider them seriously. Considerable lems. Such "offer of judgment" or "offer theoretical work, however, has ques­

of settlement" rules provide for some tioned some of these expectations, I and consequence, such as the payment of a empirical evidence on the actual or like­ larger share of litigation costs, if a civil ly effects of present and proposed offer litigant does not accept an adversary's for­ rules has been scanty. mal offer and then fails to improve on it Whatever the theoretical reasons for (or come within a certain range) at trial. doubt and the empirical information To the extent that the eventual judgment gaps, proposals for enhanced settlement fairly reflects what had been the case's offer devices have been coming increas­ settlement value, such offer rules reward ingly thick and fast. In the early 1980s, those who make-and punish those who around the time that the Advisory reject-an offer that turns out to have Committee on Civil Rules was proposing been fair or more than fair. the major changes that greatly stiffened Federal Rule 11 on sanctions for party and attorney misconduct, it floated kindred but soon-abandoned drafts to amend Rule 68. One of these would have allowed sanctions in the form of attorney fee liability for those who forced needless litigation by rejecting an offer and failing to improve on it at trial. More recently the Advisory Committee informally circulated another possible revision of Rule 68, based on a 1992 proposal by the then Director of the Federal Judicial Center, Judge William Schwarzer.' Using another variant, the Eastern District of Texas has incorporated into its Civil Justice Expense and Delay Reduc­ tion Plan a rule imposing limited post­ offer attorney fee liability on a rejecting offeree if lithe final judgment in the case is of more benefit to the party who made ·

the offer by 10 percent. II Just last year, acting to implement the Contract with America, the House of Representatives

included in the II Attorney Accountability Professor Thomas D. Rowe, Jr. Rule 68 has had limited use and effec­ Act of 1995" a fee-shifting offer of settle­ is senior associate tiveness, though, because it usually affects ment device that would apply in all fed­ dean for academic affairs liability for only non-fee "costs" and not eral diversity actions except to claims at Duke Law School. attorney fees, which are commonly much seeking equitable relief. And most recent­ His co-author the largest item of litigation expenses. It ly the American Bar Association, aban­ David A. Anderson is also has been available to defendants doning its long-standing total opposition assistant professor only, to reverse or arrest cost or fee enti­ to "loser-pays" attorney fee shifting pro­ of economics at Centre tlements that would otherwise run to posals, narrowly supported yet another College. They began plaintiffs. Consequently the most fre­ form of offer device that would contain working together quent type of proposal to add teeth to several limits but still let either side while Anderson was a existing Rule 68 would make it available make offers that could entitle it to recov­ doctoral student to plaintiffs and defendants alike and er attorney fees.' in economics at Duke. would have it affect, as it usually does not We cannot hope to do laboratory or now, liability or entitlement to post-offer field testing on all these variants, but we attorney fees. A widely shared hope and have tried to run realistic empirical sim­ expectation for such changes is that they ulations to test some of the expected would encourage more, earlier, and fairer effects of enhanced offer rules. After an

P ERSPECTIVE DU K E LAW MAGAZINE . 13 initial round of experimentation using would be unlikely to net better at trial. ble cases taken from actual jury verdict student subjects and paper questionnaires Because of these incentives we nicknamed reports. that was reported in an article by this variation the Sincerity or Godfather Once subjects had read this part, the Professors Rowe and Vidmar some years Rule-you'd better be sincere and make program asked them to estimate an ago in Law tV Contemporary Problems, 4 an offer that's too good to refuse. expected jury award and also to state like­ we have moved on to the novel device of Our second simulation tested a type of lihoods that the result would reach vari­ computer simulations of litigation situa­ rule that very much exists in the real ous dollar levels. These two different tions administered to practicing lawyers. world of federal civil rights litigation: a ways of evaluating the same case permit In this effort we have received invaluable defendant, otherwise liable for all of plain­ a comparison of whether the subjects sys­ help from the American Inns of Court tiff's reasonable attorney fees, may make tematically varied depending on the esti­ Foundation and the Dispute Resolution an offer that if rejected and not improved mation technique they were asked to use. Committee of the North Carolina Bar on will eliminate the defendant'S liability The program then asked for what their Association, which provided endorsement for the plaintiff's post-offer fees. A possi­ bottom line would be if no offer rule were and access to their members. The subjects ble variant, not used in practice, could go in the picture, and followed by injecting bring up our program on a computer beyond stopping the clock on plaintiff's a fee-affecting Rule 68 and asking screen, give some data about themselves, fees and make the plaintiff liable for post­ whether they would recommend accep­ and read about a hypothetical but realis­ offer defense fees . In both these simula­ tance of offers $1,000, $2,000, $4,000, tic litigation situation, in which they are tions we were testing hypotheses about $6,000, and $8,000 worse than what they cast in the role of plaintiff's or defense likely impact of offer rules, looking for had said was their bottom line. This key counsel. They are then asked about their what effects they actually seemed to have aspect of the simulation sought to test evaluation of the case and how they would on the likelihood that litigants would whether the offer device made parties advise their clients in making and be more or less likely to accept offers, more likely to accept settlement offers responding to settlement offers under dif­ what they would recommend by way of inferior to what they had said they would ferent types of formal offer rules. The counter-offers, and so on. Some of the data insist upon, with consequent increases in answers are recorded by the program and we collected also enable us to look at the likelihood of settlement. Moving on can be loaded directly into a database for other interesting matters aside from the to the "Sincerity Rule" to test the statistical analysis along with other working of offer rules themselves, such as hypotheSiS that plaintiffs would accept responses. This use of modern technolo­ apparent degrees of attorneys' optimism defense offers greater than or equal to the gy brings a new and as yet little-explOited in evaluating a case. expected jury award, the program made tool to empirical legal research. We will try to describe each simulation offers under the rule for amounts equal We ran two different simulations, one and its results as concisely as we can, and to, and $1,000 and $3,000 more and less based on a tort scenario and using an offer we will spare our readers here the equa­ than, the expected award. rule somewhat like that in the House's tions and statistical analysis.' The first The results indicated that offer rules Contract with America bill-each side simulation used a typical auto tort sce­ did have some impact on subjects' will­ could trigger possible attorney fee liabili­ nario and tested three possible types of ingness to recommend acceptance of ty if it made a formal offer that was reject­ offer rules-none, a fee-shifting version offers worse than what they had said was ed and not improved on at trial. Exploiting under which either side can make Rule 68 their bottom line. With the case evalua­ the versatility of the computer-simulation offers, and the "Sincerity Rule." The tion averaging about $25,000, 62 percent tool, we included in this first simulation respondents were practitioner members of of plaintiffs'-side respondents and 91 per­ an unconventional rule that, in theory, American Inns of Court with the inns cent of those on the defense side said they destroys imbalance in bargaining posi­ selected for geographical dispersion, prac­ would recommend acceptance of an offer tions and assures settlement near the level titioner members of the North Carolina $1,000 worse than their bottom line. of the expected jury award. Under this Bar Association's Dispute Resolution Those numbers declined to 42 percent and variation an offeror, instead of gaining a Committee, and some upperclass law stu­ 61 percent for offers $2,000 worse, and 21 possible favorable fee shift from an adver­ dents. The simulation assigned the prac­ percent and 39 percent for offers that were sary's rejection of an offer and failure to do titioners to the side they said they usually $4,000 worse. This result, showing fairly better, would be liable for the reasonable represented in real life, and practitioners rapidly decreasing but still notable rates post-offer fees of a rejecting offeree, what­ with no predominant side plus all the stu­ of recommended acceptance of signifi­ ever the result of trial. The method behind dents to the plaintiffs' side. We ran our cantly less favorable offers, suggests some what may at first sound like the madness data with and without the students so as modest effect for this form of enhanced of this approach is that offers would have to avoid possible systematic bias from the Rule 68 on settlement rates. More trou­ to be good enough to be highly likely to students' inexperience. Students tended bling, though, this effect could come at be accepted, yet could still be worth mak­ to say they would demand somewhat the cost of giving considerable impact to ing because the offeror would benefit from higher settlements than practitioners but "low-ball" settlement offers, playing on the savings of not going to trial. And even in other respects did not affect the results. an adversary's risk aversion to force a set­ offerees who would have a free ride should The program gave subjects the facts of the tlement favorable to the offeror. As for the not turn down good offers, because they tort case and data on awards in compara- Sincerity or "Godfather" Rule, it elicited

14 • DUKE LAW MAGA ZI N E SPRING 96 responses more or less as expected-rec­ risk of down-side outcomes. Recom­ The main results from this second ommended acceptance rates well above 50 mending acceptance of Sincerity Rule scenario were that plaintiffs' demands percent for offers equal to or more favor­ offers that are inferior to the expected moderated slightly under the costs-only able than the expected verdict, but drop­ award is a sign of risk aversion, because and clock-stopping version of Rule 68, but ping below 50 percent when offers became offerees have the prospect of a free ride at considerably under the stiff liability­ inferior to the expected verdict. Thus the trial with fees paid by the offeror. reversing version. At the same time defense Sincerity Rule showed promise not only Substantial minorities showed risk aver­ offers became not less but somewhat more for inducing settlement, but for doing so sion by this measure, which could trans­ favorable to plaintiffs as rule impact in ways that might limit the effects of late into some impact of increased increased. The logic to this opening of the unequal bargaining power and reduce settlement likelihoods under the more purse strings could be that the prospect of unfairness by encouraging settlements conventional form of enhanced offer rule. greater gain from not having to pay plain­ not just at any level but at amounts close In our second simulation, the scenario tiffs' post-offer fees, or from even recover­ to the expected result of trial. involved a federal civil rights damage suit ing the defense's own fees, is attractive Undue optimism on the part of either by the victims of a mistaken-address drug enough to elicit more generous offers. If side makes settlement less likely, and we bust. In such cases prevailing plaintiffs this effect were to appear regularly, the stiff took advantage of the simulation's ex­ are entitled to attorney fees under the version of Rule 68 with its definite pected-verdict questions to compare the Civil Rights Attorney's Fees Awards Act demand-moderation impact on plaintiffs verdicts expected by plaintiffs' and of 1976; but it is now settled as a matter and its possible offer-improving effect on defense sides as a measure of optimism of interpretation of present Federal Rule defendants might considerably increase based on their position. With both sides 68 that a rejected but unbeaten defense the likelihood of settlement. The evalua­ given identical information, the mean offer stops the clock on plaintiffs' fee enti­ tive question that remains, of course, is stated expectation for plaintiffs' lawyers tlement-yet ordinarily without making whether such an impact on settlement was more than $2,000 above that for the plaintiff liable for the defendant's rates would be worth the threat of making defense counsel. By contrast, the figures post-offer fees. As in the tort scenario, the often impecunious civil rights plaintiffs for likely result based on estimates the program gave subjects the facts and sam­ liable for defense fees, with the effects that subjects gave of probabilities of verdicts ple verdicts from comparable cases, and would likely have on the pursuit of civil at various levels differed by less than asked for recommended bottom lines. rights claims in the first place. $1,000. The greater difference when sub­ The simulation then described three pos­ On the one hand, the results we have jects gave just a single figure for expected sible alternative applications of Rule 68 reported are tentative and modest. On the verdict suggests the presence of some to a civil rights suit: that an offer would other hand, these results do permit us to degree of settlement-inhibiting optimism affect only non-fee "costs" of litigation, say to advocates and critics of offer rules in a common way that attorneys evaluate that it would stop the clock on defense that they should not be too sure that cases-and the importance of litigation liability for plaintiffs' attorney fees, and changing offer rules to affect attorney fee devices aimed at inducing realism. that it could go further and threaten the liability will have a strong impact, for good Such optimism may be offset, though, plaintiff with liability for defense fees. or ill, on settlement-offer and -demand by risk aversion-a tendency to avoid the levels and on settlement rates. With less pronounced changes than the polar shift from plaintiff to defendant The main reasons for questioning whether and how much enhanced offer devices will succeed in encouraging set· fee entitlement, our results indicate that tlements are that they might not remove the general inlpediments to settlement from the parties' disagreement over the likely outcome of trial or from bargaining impasse over how to divide the savings from not going to trial. There enhanced versions of Rule 68 might still also can be a "dig·in" effect making settlement harder to reach after a rejected offer because the offeror expects the have some settlement-encouraging effect, likely trial outcome to be more favorable as a result of the offer, perhaps by more than the offer worsens a relatively yet it appears likely to be modest. If that optimistic adversary's expected yield from trial. In short, although formal offers might smoke out realistic offers early and get settlement in cases that are likely to settle anyway, the making and rejection of an offer might push the par· is so, the moderating features of such ver­ ties further apart than before and leave them with less reason to be forthcoming in later settlement negotiations. sions as the Schwarzer and ABA propos­ 2 William W Schwarzer, Fee·Shilting Offers of Judgment-An Approach to Reducng the Cost of Litigation, 76 als would be likely to dampen still further Judicature 147 (1992). The central feature of the Schwarzer proposal and of the draft considered by the Advisory Committee is a "capped·bene£t·of·the·judgment" formula for reckoning attorney fee liability. Rather than being the incentive effects of the offer device. liable for all of an adversary's reasonable post·expiration·of·offer fees, a party who rejected and did not improve With the uncertainty that remains undis­ on an offer would ordinarily owe the amount of such fees minus the difference between the offer and the judg· pelled after the theoretical debates and ment, limited by the total amount of the judgment. The limit to the total amount of the judgment would keep winning plaintiffs from going into the hole, and would save defendants who lose modest judgments from having our empirical efforts, moderate proposals to pay large plaintiffs' attorney fees. Deducting the offer-judgment difference from post.offer fees would reduce might be the best way to start. Larger­ total fee liability and give offerors the net outcome they had been willing to accept as shown by their offer. scale experience with such provisions 3 See Henry J. Reske, ABA Won't Endorse Fee Shifting, but OKs Model, A.B.A. J., Apr. 1996, at 34. A key element of this ABA model is a 25 percent buffer that would shield from fee liability plaintiffs who recover more than 75 percent could replace our small-scale experiments of the rejected defense offer, and defendants who are held liable for no more than 125 percent of a plaintiff's rejected offer. as a basis for debate and decision on 4 Thomas D. Rowe, Jr. , with Neil Vidinar, Empirical Research on Offers of Settlement: A Preliminary Report, reforming Rule 68 . • 51:4 Law &. Con temp. Probs. 13 (Autumn 1988 ). 5 Full repofts on our experiments and their results appear in two articles, David A. Anderson &. Thomas D. Rowe, Jr., Empirical Evidence on Settlement Devices: Does Rule 68 Encourage Settlement?, 71 Chi.·Kent L. Rev. 517 (1996), and Thomas D. Rowe, Jr. and David A. Anderson, One· Way Fee-Shifting Statutes and Offer of Judgment Rules: An Experiment, 36 Jurimetrics J. 255 (1996).

PERSPECTIVE DUKE LAW MAGAZINE • I 5 'ijJ;ljijj"'" Rene Stemple Ellis

In 1983, members of the Law School fac­ more efficient than the traditionallitiga­ ulty began discussions about the ineffi­ tion system. The Center must compare ciencies frequently faced by litigants in and contrast cases that are adjudicated civil disputes and the burdens faced by through some alternative procedure to courts in their attempts to process and those that continue through the tradition­ advance cases to a just resolution. It was al court system. To this end, the Center the expressed desire that one or more engages in alternative dispute resolution state or federal courts might enter a coop­ IADR) programs, over which it has a great THE erative effort with a law school affiliate deal of control, that are designed to test the organization to provide a laboratory for merits of new and innovative procedures. PRIVATE research on more efficient methods of One of the Center's earlier opportuni­ judicial administration. ties to critically examine a dispute reso­ ADJUDICATION This distinction sets the Private lution program was its administration of Adjudication Center apart from other a court annexed arbitration program for CENTER organizations involved in dispute resolu­ the Middle District of North Carolina. tion. It also relates to its focus on the The U.S. District Court entrusted court AT DUKE investigation of private adjudication annexed arbitration to the Center on an processes that might be more efficient experimental basis for two and one-half than the traditional system, but that years in a program described more fully adhere to fundamental legal principles. below. Cases that are processed by the This early discussion continued with Center are clinical laboratories for the Carmon J. Stuart '38 Iformer clerk of study of methodologies for improving the court for the U.S. District Court in the administration of private law-each is Middle District of North Carolina), other an independent educational endeavor. friends of the Law School, and with fed­ Providing private adjudication services is eral judges in the U.S. District Court in a central element of the Center's educa­ Greensboro. The discussion centered on tion and research goals by providing the idea of court annexed arbitration of on-site observation opportunities. One civil cases, an idea that was considered criterion used to determine whether a somewhat novel at the time. The court case is appropriate for the Center is direct­ favored the concept and was interested in ly related to its educational function: Will cooperating with the Center. the Center learn something from the According to its Articles of Incorpo­ experience that might be helpful in iden­ ration, the Private Adjudication Center's tifying ways of improving the adminis­ purpose is to improve the administration tra tion of jus tice? of private law by studying and providing The other purposes identified in the alternative means of dispute resolution in Articles are to provide instruction to Law lieu of traditional judicial routes. The School students, and to a wider audience, Center also provides instruction to Duke in the arts of settlement and private adju­ law students and wider audiences in the dication; to pursue inquiry into effective arts and skills of settlement and private procedures for resolving disputes regard­ adjudication. The Center develops and ing the application of private law; and presents continuing legal education pro­ to disseminate knowledge derived from Rene Stemple Ellis '86, grams and publishes articles setting forth research and application of private adju­ Executive Directo r, the results and conclusions of its studies. dication through publication and contin­ Private Adjudication Its purpose also is to improve the admin­ uing education. Center istration of private law by exploring an In a typical ADR process there are edu­ alternative means of dispute resolution cational events at every step-from pro­ which will be efficient yet faithful to cedure design, through the process itself, controlling law. to post-hearing study. The first purpose of the Center identi­ Designing a dispute resolution process fies the means by which the administra­ appropriate in a specific case or group of tion of private law might be improved, that cases involves an understanding of the is by exploring "alternative means of dis­ choices for developing an alternative pro­ pute resolution." This requires that the cedure. The Center spends a significant Center involve itself in opportunities to amount of time educating practitioners create processes and procedures that are about the details and options available.

16 • DUKE LAW MAGAZINE SPRING 96 There are many dispute resolution pro­ More recent educational efforts of the other institutions, judicial and academic, cedures, ranging from the negotiation Center include development of in-house and to develop a trained cadre of instruc­ model to the summary jury trial, includ­ continuing legal education programs. A tors who can serve as faculty or discus­ ing arbitration, mediation, mini-trials, partial list of the program topics includes sion leaders in similar programs. Four med-arb, ombudspersons, early neutral ADR Basics, ADR and Mediation in programs were conducted between 1991 evaluation, and other hybrid processes. Employment Cases, Construction Cases, and 1996. Twenty state and federal judges This design phase is a learning experience Medical Malpractice Cases, and Bank­ attended each seminar. for the parties to a dispute, their lawyers, ruptcy, Dispute Resolution in Mass Torts, With the support of the Smith and the Center personnel assigned to Ethics Issues in Mediation, Early Neutral Richardson Foundation and the Federal negotiate and develop the process. In some Evaluation, and short courses in media­ Judicial Center, a superb faculty assembled cases, law students have been observers tion and negotiation. by the Center presented 24 hours of high during this stage. This opportunity allows The Center also is training lawyer quality education for the 1995 program. the Center to control the process in a mediators in the N.C. Superior Court The program included lectures on statisti­ manner conducive to further study and Mediated Settlement Conference Program. cal, survey, medical, economic, epidemio­ dissemination of information. The comprehensive 40-hour training pro­ logical, and DNA evidence, including an Once a procedure has been designed an gram is certified by the Administrative intensive analysis of the court's gatekeep­ opportunity is created for all who are in­ Office of the Courts. The Center offers ing function governing the admissibility of volved to learn about more efficient meth­ these programs with David Strawn, presi­ the scientific evidence under the U.S. ods of dispute resolution. It is through this dent of Dispute Management Incorpo­ Supreme Court's Daubert decision and critical observation that data is collected rated, a former judge, and active mediator. related authorities. Participants evaluated by the Center for study and analysis. The faculty includes Private Adjudication the seminar as contributing significantly The Center attempts to study the Center mediators Robert A. Beason as lead to their understanding of scienti£c and ADR processes and report its findings. It trainer, J. Dickson Phillips, III, professor technical evidence. carries out this evaluative component by Thomas Metzloff, and Center executive The Center's interest in promoting a following each procedure with evaluation director Rene Ellis. The training programs better understanding and resolution of forms, interviews, and follow-up study. are scheduled every three months. issues involving scientific and technical From the efforts involved in dispute res­ subjects was furthered by the establish­ olution design and administration, the Programs for the Judiciary ment of an Advisory Committee to assist Center makes significant contributions to Another component of the Center's con­ in the implementation of a certification the body of knowledge available about tinuing education mission is to contribute program for scientific and technical conflict resolution. to the effective administration of justice experts. The program aims to aid public by enhancing the education and informa­ and private adjudication by assisting Educational Programs tion available to the judiciary. The Center courts, private adjudicators, and parties The Center has sponsored major confer­ has offered a series of three educational in obtaining scientific and technical ences over the years, including a 1988 programs for state and federal judges, experts who are committed to a code of conference on empirical studies of civil sometimes referred to as "Judging Science" conduct that eschews conflicts of inter­ procedure. In 1989, the Center co-hosted seminars. The Center develops educa­ est and requires expert assistance based a conference with the Law School and the tional programs to improve the capacity upon competence, objectivity, fairness Torts and Insurance Practice section of of state and federal judges to deal with the and impartiality. Again with the generous the American Bar Association, the Asso­ concepts, theories, data, and personnel of support of the Smith Richardson Foun­ ciation of Trial Lawyers of America, and science, and to apply these insights in con­ dation, a planning conference to discuss the Defense Research Institute on the set­ texts that are often significant for the out­ this proposed certification program was tlement of mass torts. come of litigation. held in September 1995 . The Center sponsored a 1992 confer­ The seminars have helped judges learn The Center has developed a grant pro­ ence on international civil procedure. The enough about scientific concepts, meth­ posal to present a seminar on judicial papers, published in Law eY Contemporary ods, theOries, and data to distinguish responsibility to invited state and federal Problems, were presented under the aus­ acceptable scientific evidence from unac­ judges. This seminar will focus on issues pices of the Hague Conference on Private ceptable "junk science." A related objec­ involving judicial ethics, judicial han­ International Law, by the Center and the tive is to improve judges' awareness of dling of courtroom misconduct by attor­ ABA Section on Litigation. They address resources available to assist them in neys, independence and accountability of the efforts of the Hague Conference to understanding and utilizing the materials judges, the duty of recusal, the duty to facilitate litigation across international of science in litigated disputes involving avoid ex parte communications, judges' boundaries. In 1994, the Center sponsored serious scientific issues. freedom of speech, issues confronting a conference on international commercial Additional aims of the programs are to judges in sensational trials, management arbi tra tion. test a revised curriculum that, when fully of public institutions, sanctioning im­ refined, will serve as a model for use by proper conduct, and involvement in the settlement process.

PERSPECTIVE DUKE LAW MAGAZINE • 17 This proposed seminar was modeled • to work with HMOs, insurance regu­ The Dalkon Shield Claimants after a successful seminar presented to lators, and others to overcome regula­ Trust Arbitration Programs Duke law students by Judge Gerald tory and other legal obstacles to In 1991, the Center successfully secured Wetherington, the Center's 1994-95 acting arbitration and to ADR clauses in a contract approved by the U.S. District president, Metzloff, and Federal District HMO and other contracts; Court for the Eastern District of Virginia Judge William Hoeveler of the Southern • to design an innovative ADR proce­ and the U.S. Bankruptcy Court to admin­ District of Florida. dure that can serve as part of a larger ister arbitration programs for the Dalkon process, by which an organized health Shield Claimants Trust. U.S. District Research Opportunities plan, an ERISA plan administrator, or Judge Robert R. Merhige, Jr. retained juris­ The Center is seeking foundation funding a health insurer makes difficult cov­ diction over the case and jointly decides to study the effectiveness of ADR proce­ erage determinations in areas of med­ matters with bankruptcy Judge Blackwell dures for adjudicating or otherwise set­ ical uncertainty; N. Shelley. The A.H. Robins Company's tling liability questions that arise between • to operate the comprehensive ADR bankruptcy plan of reorganization impli­ health care providers and their patients or program for at least three years, cated hundreds of thousands of tort claims between organized health plans and their improving it in accordance with which are "inherently judicial" matters enrollees. Specific procedures will be insights gained in its operation; within the sole authority of Article ill fed­ developed to resolve, in particular, claims eral judges. IA brief history of the Dalkon • to use social science research methods of profeSSional malpractice or corporate Shield and the Chapter 11 case is set forth to evaluate experience under the pro­ negligence, and disputes concerning the in In re A.H. Robins Co., 880 F.2d 709, gram both concurrently and upon obligation of a health plan to cover a par­ 711-22 14th Cir.), cert.denied sub nom. completion of the project. ticular procedure or treatment. Anderson v. Aetna Casualty eiJ Surety The Center's specific goals in design­ Co., 493 U.S. 95911989). Court-Annexed Arbitration Program ing and implementing such procedures The bankruptcy plan discharged the will be as follows: The first major program undertaken by the debtor, the A.H. Robins Company. It Center was contributing research, drafting • to develop a comprehensive ADR pro­ released the Robins family, company offi­ rules and procedures, and providing guid­ gram offering standard procedures tai­ cials, insurers, and doctors or health care ance to the U.S. District Court for the lored for the accurate and expeditious providers who otherwise could have been Middle District of North Carolina in design­ resolution for particular classes of dis­ sued for malpractice on claims arising out ing a program for court annexed arbitration putes, as well as optional alternative of the insertion, removal, or use of the of pending civil cases and later co-manag­ procedures; Dalkon Shield by permanently enjoining ing the program with the clerk's office per­ claims against them. The plan authorized • to assist selected entities lincluding sonnel. This program was the first of its the court to appoint five trustees to carry organized health plans and one or kind in the southeast and one of 10 pilot out the plan, and Merhige supervises their more liability insurers) in utilizing the programs in the nation. It was recognized activities. The plan provided the format Center's program to resolve liability as a success by a district-wide advisory for setting up the claims resolution issues; committee and in an extensive published process and arbitration programs. • to identify reasons why health plans, study conducted by the Rand Corporation. The Center developed a training pro­ providers, and counsel for various par­ The program was co-administered gram to provide the expertise necessary ties might resist the use of ADR to with the Court under the leadership of for the Dalkon arbitrators to carry out resolve malpractice disputes and to Carmon Stuart, the Center's then-vice their responsibilities in an effective and take appropriate steps to overcome president for adjudication services. Stuart efficient manner. The six-hour training such resistance; now serves as the vice chairperson of the session consisted of basic training in board of directors. obstetrics/gynecology and epidemiology relevant to the Dalkon Shield arbitration program, in addition to the rules and Professor philosophy of the arbitration program. Neil Vidmar Experts were recruited from the Centers leads a for Disease Control and Dul

18 • DUKE LAW MAGAZINE S P RING 96 PAC attorney - mediator RobertA. Beason, at far left, leads a mediation training session.

and deciding how best to train the train­ plete schedule of the meetings. The meet­ ers. The Center recruited 20 well-qualified ings were scheduled in 27 cities across the lawyers who were also dispute resolution country during a series of four-day week­ professionals to facilitate the regional ends in February. The Center initially meetings. scheduled over 450 sessions. After each To design the structure of the region­ weekend, the Center compiled reports. al meetings, pilot sessions were sched­ Although the number of attendees was Silicone Gel Breast Implant uled in Memphis and Atlanta with significantly lower than anticipated, Orientation Program invited audiences. The hope was that the those who attended the meetings seemed The Center was requested to playa major pilot sessions would provide information satisfied with the content. role in assisting the U.S . District Court for planning the actual claimant meet­ for the Northern District of Alabama in ings. In addition, a training session was Fibreboard Interim its effort to help claimants understand held for the facilitators in Memphis in Arbitration Program their rights and options under the revised conjunction with a meeting of the Sili­ The Interim Committee of the Fibreboard settlement program being offered by four cone Gel Breast Implant Litigation Sub­ Asbestos Trust selected the Center to participating defendants in the Silicone Committee of the Mass Tort Litigation administer an arbitration program for Gel Breast Implant Litigation. Under the Committee of the Conference of State indigent and exigent claims prior to the leadership of professor Francis McGovern, Supreme Court Chief Justices. The goals approval of a global settlement. The University of Alabama School of Law and of the training included both assisting the Center's role is to appoint arbitrators, pur­ Special Master in the litigation, the facilitators in their assimilation of the suant to a random selection procedure Center began its coordination effort with details of the revised settlement program established by the Interim Committee, a planning meeting in Washington, D.C. and designing a structure for the pre­ and coordinate the scheduling and loca­ on December 14, 1995. sentations in the regional meetings. The tion for the arbitrations. Participants at the planning meeting training effort also included a day at the claims office in Houston for each facili­ included Judge Sam C. Pointer, Jr., Chief IN SUMMARY, the Center has had, and con­ Judge of the Northern District of Alabama; tator to answer the telephones and respond tinues to have, a pioneering and signifi­ Judge Ann Cochran, Administrator of the to questions from claimants. cant role in the changing legal landscape. Claims Office; McGovern; key lawyers Regional information meetings were Its officers, directors, and the Law School from the plaintiff's steering committee; scheduled for two hours in length. The view its future as rich with opportunities key lawyers for the defendants; and Ellis content consisted of a video recording of for creative public service. Thus it has of the Private Adjudication Center. The a Court TV program, which had aired on made, and is poised to make truly signif­ agenda focused on the best design for a January 24, 1996, and featured Pointer and icant contributions to the education of comprehensive program to educate claim­ Cochran, along with Leslie Bryan, lawyer students, the practicing bar and to society ants about the revised settlement pro­ for the plaintiff's steering committee, and generally in the delivery of civil justice. gram. The goal was to have the program Linda Willett, lawyer for Bristol-Meyers. ready to serve claimants by February 1, The Court TV program explained the • about two weeks after the program notice forms and notices and the rights and was mailed to over 350,000 potential options of implant recipients. Facilitators claimants. presented a brief overview of the materi­ Planners decided that public informa­ als and invited questions from the atten­ tion meetings held in major metropolitan dees after the Court TV video was shown. The PrivateAd;udication Center offers medi­ ation certification training. In con;unction cities with high claimant concentrations Claimants were notified about the with Dispute Management, Inc. , the PAC will might be an effective way to orient claim­ meetings through an 800 number (includ­ offer training in November at Duke's R. David ants. Another major task was identifying ed in a packet of information mailed to Thomas Center. For information, call 1-800- DUKE-PAC or 1-800-385-3722. persons qualified to educate the claimants, them in January) that contained a com-

PERSPECTIVE DUK E L AW MAGA Z INE . 19 'aii"a,'.", Fa culty Profile

Paul Carrington, Harry R. Chadwick, Sr. establishing new programs and founding Professor of Law, looks and acts the part the Private Adjudication Center. of the traditional professor. He wears suits and bow ties to class and uses a The Civ Pro Foundation desktop lectern. He teaches what the Practitioners might come to view civil uninitiated might consider the driest of procedure as a weapon of litigation, a set subjects-civil procedure, a course of of rules in which to ensnare one's oppo­ technical rules with great potential for nent. But Carrington introduces first-year confusion. So Carrington's first-year stu­ students to the philosophies and consti­ dents are jolted when, in the midst of tutional principles behind the rules. "I like to begin the course by reviewing the constitutional elements of civil pro­ cedure, the constitutional law of civil pro­ cedure in state courts, our basic values," Carrington explains. In his class, "due process" is not just a buzzword; it is a concept that is thoroughly explored. How much process is due when the state aims to terminate parental rights or welfare benefits? When does one have a right to a jury trial? How should controversies be adjudicated so that rights are preserved? These questions formed the foundation of Carrington's highly successful civil procedure casebook. First published in 1969, the book has been through three editions and used by dozens of law pro­ fessors around the country. The one civil procedure class that never uses his casebook is his own. For Paul D. Carringto n, his students, Carrington assembles a fresh explaining how a plaintiff in New York Harry R. set of course materials every summer, may sue a defendant in Connecticut, he Chadwick, Sr. logging onto LEXIS and combing through turns to the chalkboard and draws swift, Professo r of Law the previous year's legal developments. perfect outlines of New York and Con­ and former dean His students receive a three-inch stack of necticut. Word has it he can draw every the most recent Supreme Court decisions state in the union freehand. adjudicating rights and interpreting the Impromptu graphic design is just one rules of civil procedure. of Carrington's many talents. An innova­ tive teacher, he has guided several thou­ Scholar of the Law School sand students down the twisting paths of civil procedure, illuminating their consti­ But Carrington is not just a scholar in tutional underpinnings. A prolific scholar, the Law School; he is a scholar of the he has authored an influential casebook Law School. A great portion of his intel­ and chronicled the history of American lectual energy has been directed toward legal education. And as dean of Duke Law critically examining legal education. In School from 1978 to 1988, he guided Duke the late 1960s and early 1970s he direct­ during a criticallO-year period of growing ed a law curriculum study for the national and international prominence, Association of American Law Schools. His report, "Training for the Public Pro-

20 • DUKE LAW MAGAZINE SPRING 96 fessions of the Law," was called "a act. He defined the prob­ the administration soli­ provocative analysis of legal education." lem, created a solution, cited financial support More recently, he researched the history and pursued it, and it for the students from of legal education in the United States. In sustains us to this day." American law firms. each of the past few years, he has written Under Carrington's plan, Other international in­ several articles on the subject, which he academic stars like novations during Carring­ hopes to compile into a book. He has historians John Hope ton's deanship include already completed a book-length manu­ Franklin and William adding an associate dean script on Thomas Cooley, the former Leuchtenburg, English for international studies, dean of Michigan Law School and Chief professor Stanley Fish, Judith Horowitz; found­ Justice of Michigan's Supreme Court. political scientist Peter ing the JD/LLM program But Carrington's best opportunity to Fish, and philosopher for American students; scrutinize legal education was his 10 Martin Golding enriched and establishing visiting years at the helm of Duke Law School. the Law School curricu­ scholar relationships with When he assumed the deanship in 1978, lum with cross-discipli­ legal scholars from abroad. he was a tenured professor at one of the nary courses. "Interna tionalization country's most prestigious law schools, Carrington's ideas shaped the student occurred on my watch, but I don't take the University of Michigan. As professor body as well as the faculty. "The summer­ creditfor it," Carrington insists. "Oppor­ William Van Alstyne put it, "Paul was by entering class was his idea," Gann notes. tunities came along, people started apply­ far the Duke faculty's first preference for Though other schools had held summer ing. My own interest was opportunistic. dean, but we were caught in the usual sessions, Duke was the first to start a por­ If there's an opportunity, let's do it." paradox of such things: the sort of person tion of its first-year class in the summer. One such opportunity came all the one most often desires to attract as one's Because each summer-entering student way from Anchorage, Alaska. In 1983, dean is very often the same person already pursues one of a dozen joint degrees, the Duke's faculty was considering estab­ enthusiastically engaged, and therefore summer class uniquely comprises students lishing a third law journal to join the least likely to want to respond." But with diverse intellectual backgrounds. Duke Law Journal and Law eJ Contem­ Carrington did respond, despite the Carrington also is responsible for the porary Problems. At the same time, the increased workload and decreased time high number of international students at Alaska Bar Association was seeking a law for academic pursuits. "The costs [of Duke. Duke's LLM program for foreign school to publish its law journal. Because being dean] were much less for me than lawyers, established during Carrington's there are no law schools in Alaska, the bar for others," Carrington insists, "because deanship, enrolls young attorneys from had no natural forum for scholarly analy­ it was my own interest." around the world in a year-long American sis of Alaska's unique legal issues. So "Paul Carrington was incredibly cre­ law curriculum. Students take first-year Duke joined several other law schools in ative about ideas for the institution to courses as well as upper-level, business­ a competitive bidding process. Carrington change and grow, during a time of great oriented courses. and Walter Dellinger, Duke law professor stimulation and ferment," says current The three-year JD program also is now on leave at the U.S. Department of Dean Pamela B. Gann. For example, in a open to international students. One of Justice, drafted a proposal, and Carrington time when the law was awakening to the Carrington's legacies is a list of 30 alum­ flew to Anchorage to present Duke's pro­ interdisciplinary nature of many legal ni from mainland China with Duke JDs. posal to the Bar Association personally. problems, many law schools recruited fac­ "Our close relationship with China is 100 The contract was awarded, and the Law ulty with doctorate degrees. "But Paul did percent credited to him," declares Gann. School has maintained this unique tie to not want to skew our fac­ While students from Alaska ever since. ulty to be another arts and Europe had attended sciences faculty," Gann Duke Law School in the ADR Pioneer states. "Instead, he used pas~ in the 1970s and A substantial portion of Carrington's the joint appointment '80s political and finan­ legacy is the Private Adjudication Center process, where scholars cial difficulties ham­ (PAC). When Carrington first arrived at would have a primary pered efforts to attract Duke, its involvement with a legal aid home that was not in the Asian students. Duke's clinic had waned, and it had no formal Law School. This added most famous alumnus, public service commitments. Carrington to our ability to do legal the late President of the strongly desired some public service theory, jurisprudence, United States, Richard involvement for the Law School. "We social science applica­ Nixon '37, eased the have a public service responsibility as an tions, without tilting the political difficulties in institution, as well as individuals," he faculty toward the arts bringing the first student declares. He combined this desire with and sciences," Gann from China in 1980. And his career-long interest in adjudicating explains. "It's a balancing Carrington and others in

PERSPECTIVE D UK E L AW MAGA Z INE • 21 rights, and devised the PAC. An affiliate Carrington cautions investment on the of the Law School, the PAC was created that mediation between Committee to have been as a laboratory for teaching, research, parties with unequal "trying to lighten up and direct service in the area of conflict bargaining power risks un­ Rule 11." In 1983, Rule resolution. "It was an attempt at law fairness, especially when 11 was amended to reform, to learn how to enforce rights," it is mandated by the allow a party to recover Carrington says. courts. The weaker party attorneys' fees upon the Gann considers establishment of the ends up waiving the con­ filing of an opponent's PAC one of Carrington's greatest innova­ stitutional protections frivolous pleading or tions. "This was the first adjudication available in the courts. motion. That year, 1,000 center that was an affiliate with a law He cites a study showing Rule 11 cases were filed . school at a research university," she says. that divorcing mothers Carrington pushed hard "Just as medical schools run hospitals receive lower sums from for a softening of the and deliver patient care, this was a direct mediation than litiga­ rule. Finally, in 1993, service delivery system." tion. "Divorcing mothers the Rule was amended A member of the PAC's executive are most anxious about custody," he says, to provide a 21-day "safe harbor" in committee and board of directors since so their keen desire to keep their children which to withdraw a motion or pleading 1983, Carrington took a turn as executive can cause them to bargain away property before it draws a Rule 11 challenge. director in 1988, and is currently chair­ or money. "There is a romantic element "It's a political job in a lot of ways," man of the board. in the ADR movement that the lion will Carrington reflects. "The process is now "He's been a true leader," says Rene lie down with the lamb," Carrington somewhat embattled. Congress is more Stemple Ellis '86, PAC executive director. smiles. "The fact is, without some pro­ aggressive. [The Advisory Committee "He guided the Center through its grow­ tection, the lion will eat the lamb." during his tenure] was dominated by ing pains and helped it blossom into what Ellis credits Carrington with influ­ judges. They were disinterested for the it is today. He has contributed literally encing the PAC's approach so that it most part. When Congress is involved, it's thousands of hours to the Center with no "uses dispute resolution mechanisms because it's political." He points to the compensation. " that are faithful to the law, so that we're new federal statute establishing a special Most recently, Carrington has orga­ working within the current system." procedure for shareholder suits against nized conferences on international com­ corporations. "Congress would reinvent mercial arbitration and Professional the forms of action," he complains. on dispute resolution Commitments "They would have a different procedure programs in Pacific Rim As if the deanship of a for every kind of case. Congress is letting nations. He also has pro­ law school were not itself in for a nightmare." moted more efficient enough to occupy him, Though he no longer serves on the judicial administration in 1985 Carrington took Committee, Carrington has not let up his through the PAC's ini­ on another major com­ scrutiny of the rules process. His latest tiative to educate judges mitment in the profes­ article examines whether there are con­ on scientific evidence sion. For seven years, stitutionallimits on Congress's ability to and expert witnesses. three of them overlap­ interfere with the Rules of Civil Despite his involve­ ping with his deanship, Procedure. ment with the PAC, he served as reporter for After four decades in the law, 17 at Carrington does not the Advisory Committee Duke, Carrington is going strong. "I've view alternative dispute on Civil Rules for the been employed for 40 years and I've never resolution [ADR] as the Judicial Conference of done a day's work," he says. "It's all been best way to resolve most the United States. This fun to me." conflicts. "I'm a skeptic job required some two AMY GILLESPIE '93 about ADR," he pro­ months' work per year, claims. "1 think it is in drafting and coordinating danger of being overused, review and discussion and it will have negative of amendments to the secondary impacts. It is Federal Rules of Civil the law of unintended Procedure. "It was fun," consequences: Put in an Carrington says. "1 thor­ ordinary quota of greed oughly enjoyed doing it." and mendacity, and you Carrington considers don't know what the his largest emotional consequences will be."

2 2 • DUKE LAW MAGAZINE SPRING 96 Alumni Profile 'A.;ljA""·"

During his 20 years on the bench in public service as an assistant county Dade County, Florida, Judge Gerald T. attorney in Dade County. Since public Wetherington '63 has more than a few service to Wetherington has always exceptional accomplishments of which to included teaching as well as service to the be proud, including his record-breaking court, he also became an instructor of law tenure as chief circuit judge, immense at the University of Miami in 1967, and popularity with his colleagues, and the was named University legal officer in implementation of many innovative and 1971. According to his daughter, Chriss pioneering programs in alternative dispute Wetherington '90, "His students often tell resolution and judicial education. But, it me he is the best professor they ever had. is perhaps his unswerving commitment to He is the funniest and most articulate and public service that is his most impressive can take extremely difficult legal con­ achievement. After serving a decade each cepts and make them accessible." as circuit judge and chief judge of one of the largest metropolitan court systems in On the Bench the country, which routinely handles huge In 1974, Wetherington was appointed as and difficult case loads, Wetherington has circui t judge to the 11 th Judicial Circuit, not lost his enthusiasm or optimism for Dade County, by Governor Rubin Askew finding creative solutions to society's pro­ and was elected for a six-year term in blems either within the courts or in alter­ September 1976 and again in 1982. Dade native dispute resolution [ADR) programs. County's circuit and county judges elect­ ed Wetherington chief judge in 1981 and A Distinguished Foundation for four more terms after that. No other Wetherington first distinguished himself judge had previously supervised the Dade early in his academic career. He graduat­ County system for more than two terms. ed from the University of Miami summa This feat may be attributable to the cum laude in 1959 with a political sci­ fact that Wetherington "has an outstand­ ence degree. In 1963, he received his JD ing reputation in the legal community as from Duke University, graduating first in judge and administrator and is considered his class, a member of the national moot to be above politics," according to Judge court team, and recipient of 14 American Philip Hubbart '61, a former appellate Jurisprudence Awards for the highest judge in Florida, and Wetherington's friend grades in law courses. That same year, he since they were law students at Duke. was admitted to the Florida Bar after achieving the highest score on the bar Pioneering Educational Programs GeraldT. Wetherington '63 exam. Says professor Melvin Shimm, According to Hubbart, Wetherington "set "Jerry was one of those truly exceptional up excellent education programs for his students who I felt probably could teach judges ranging from routine legal matters me more than I could teach him. Among to lectures on problems of philosophy and my most vivid memories of him is the Western culture, which have an impact 'Wetherington seminar'-Jerry down in on the cases judges handle. These subjects the lounge area after class, surrounded by illustrate his own broad range of knowl­ a small crowd of classmates to whom he edge and intellectual curiosity." was lucidly "interpreting" fine points of "We felt that judicial education in the law that the professor had been trying broader sense of the term was extremely [apparently less than successfully) to get important for our court and particularly across." so in a metropolitan court that deals with After two years as an associate with a all of the problems that you confront law firm in Miami, he began his career in

PERSPECTIVE DU KE L AW MAGAZINE • 23 within Western society," explains We have had about a 94 percent settle­ and vice versa. Consequently, both par­ Wetherington. "So our education programs ment rate since 1981," Wetherington ties had confidence in the arbitrators who were geared not only to bringing in top concludes. were made available on a voluntary, no­ legal scholars, such as Arthur Miller from Wetherington also expanded the gen­ charge basis. Harvard, but also scholars, such as pro­ eral masters program for dealing with Wetherington not only implemented fessor Louis Dupre from the humanities family cases. Cases involving child sup­ creative alternative dispute resolution department at Yale, to deal with such port or custody, visitation, or even finan­ programs in his court system, but he questions as: What are the causes of soci­ cial matters in divorce were referred to developed long-range budget strategies ety's problems? What are the best ap­ the general masters (appointed quasi judi­ so that programs could be adequately proaches to take to confront the ills that cial officers) to make sure they would get funded. For example, he introduced a generate huge judicial caseloads?" a quick hearing. In addition to these offi­ program in the juvenile court to help With the help of his Law School class­ cers, Judge Wetherington established an dependent children who were being auto­ mate, Frank (Tom) Read '63, who is pres­ additional special group of non-lawyers matically placed in foster homes that ident and dean of the South Texas College who played a mediation role in the area would allow them to stay in their homes of Law in Houston, Wetherington devel­ of child custody and visitation. "This under supervision. oped a video on teaching hearsay evidence became an automatic requirement, and to new judges that is used by the court to we were able to resolve about 85 percent Importance of ADR this date. According to Read, one of of our child custody and visitation dis­ Wetherington adamantly believes that Wetherington's major contributions to putes at this level. As we went on, we ADR programs are tremendously impor­ public service was the pioneering of edu­ expanded the number of people in that tant in assisting the courts in dealing cational programs for judges. particular unit because of its tremendous with society's problems. The most obvi­ effectiveness and because it had an enor­ ous reason is the increase in the number ADR Programs in the Courthou se mously positive impact in protecting of cases. Says Wetherington, "the courts, When Wetherington began supervising children." many times, are driven by an over­ close to 100 Dade County judges, he had "We also developed, and greatly whelming criminal caseload to which to cope with "the expanding responsibil­ expanded, a citizen's dispute program for they have to give priority because of ities that were being imposed upon handling neighborhood disputes," con­ speedy trial rules and constitutional con­ the court because of the escalating num­ tinues Wetherington. "Neighbors could siderations." Court annexed mediation ber of criminal cases and come in and present programs can alleviate some of this bur­ the tensions that existed their dispute to our den by dealing principally with civil dis­ in the community," says mediators who would putes and family cases. Wetherington. He also help them work out an However, "it's not simply the volume would have to deal with a agreement so that the of cases that makes these alternative dis­ number of major civil matter would never pute resolution programs essential," disturbance cases that have to go to court. This Wetherington says, "but also the dramat­ occurred during his 10 program offered an ic change in the court's remedial function years in office. immediate and inexpen­ in the last 30 to 40 years. In the past, a It was the "continued sive forum in which case was brought before the court, a judg­ expansion of the use of neighbors could settle ment was entered, and the court was fin­ alternative dispute reso­ disputes without get­ ished with it. With the breakdown, to lution in various forms ting into fights or taking some extent, of other institutions of that was essential to the the law into their own social control, such as the family unit, ability of the courts in hands." problems afflicting people, such as alco­ Dade County to properly Wetherington intro­ holism, drug addiction and mental ill­ perform their function" duced mediation on a ness, are brought before the courts with during this period, he broad-scale basis. In increasing frequency. Often the courts explains. "In 1981, we those programs that end up having to supervise people in initiated a court annexed were not formal media­ their family relationships and in rehabil­ mediation program for settling landlord/ tion programs, such as the general mas­ itation or mental health programs for tenant disputes. When the people came ters, mediation techniques were used many, many years, in some cases for life." to court for their final hearing, they effectively to reach settlements. "In addressing many of these prob­ would be referred to the mediator who In 1985, Wetherington initiated a pilot lems," says Wetherington, "you have to was right there on the same floor with the program involving the use of non-binding depend upon cooperation to get people to judges. The mediator would meet with arbitration in tort cases. This program, change their behavior. That's the area these people and try to resolve their dis­ which was basically voluntary, was inno­ where mediation techniques, alternative pute without the judge having to hear it. vative in that it required the plaintiff's dispute resolution techniques, are so sig- lawyers to pick the defendant's arbitrators

24 • DUKE LAW MAGA Z IN E SPRING 96 nificant and have such a great impact. diction of the court, with certain periods in the whole area of alternative dispute They can do for you what you can't do in the criminal division, until the end of resolution," says Wetherington. through a hearing and an order. If you can 1995 . He took a leave of absence from the Rene Stemple Ellis '86, the Private find a basis for agreement between parties court system for the first half of 1995 to Adjudication Center's executive director, in dealing with their problems, chances are assume the position of acting president of is looking forward to working with Wether­ greatly improved for a lasting solution." the Private Adjudication ington. According to Ellis, Mediation also can be helpful in the Center at Duke and to he is an excellent leader criminal area, according to Wetherington. teach at the Law School. and administrator. "He is "The idea of simply warehousing people While at the PAC he clearly willing to take on isn't going to work. We don't have enough coordinated two impor­ challenging projects and prisons and it's not the most effective way tant projects. As part to create the action plans to deal with most people. A high per­ of the Center's ongoing necessary to implement centage of criminal defendants can be educational programs them. He is highly effec­ rehabilitated by using probation with for the judiciary, tive in moving people in conditions that treat their basic problems. Wetherington helped the right direction in such This is not a softhearted approach; it's assemble a superb facul­ a friendly and outgoing actually a very tough approach. If you ty to present a series of manner." demand that offenders comply with effec­ seminars on statistical, tive rehabilitative conditions, you'll often survey, medical, econo­ An Inspiration achieve a better result than you would mic, epidemiological Wetherington'S commit­ with a prison stretch." and DNA evidence to ment to public service top state and federal is an inspiration to his Respect of Colleagues judges. "It has been an colleagues, including his The legal community regards Wetherington extremely successful daughter Chriss, who is very highly, according to Hubbart. During program, and I think, special assistant to the his tenure as chief circuit judge, he was from what I have been director of the National repeatedly ranked as one the county's most told by Joe Cecil, the Institute of Justice, where qualified judges by the Bar Association. director of research at she is studying crime The Cuban American Bar Association the Federal Judicial control and the justice ranked him as one of the most sensitive to Center, a co-sponsor of system to find innovative Hispanics; the young lawyer's section of the program, it is the ways to deal with offend­ the Florida Bar named him as Florida's out­ best program that is ers and those at risk for standing jurist; the South Florida Chapter available on scientific evidence in the becoming offenders. She says of her father, of the American Society for Public country," says Wetherington. "1 have probably never known anyone so Administration gave him its Outstanding Wetherington also was asked by pro­ incredibly committed to serving others Public Administrator Award; and the fessor Paul Carrington, founder of the and doing everything in his capacity to Grand Jury Association of Florida named Center and present chairman of the make their lives better. He has an amaz­ him citizen of the year. He was elected board, to set up a planning conference to ing ability to relate to other people and president of the National Association of study the feasibility of administering a understand what's going on with them. I Chief Judges of Metropolitan Courts in panel of independent scientific and tech­ can't begin to tell you the number of peo­ 1981. He was honored by the Duke Law nical experts. In September 1995, a group ple he has counseled, helped find jobs, Alumni Association with the Charles S. of distinguished legal and scientific schol­ encouraged to seek treatment for sub­ Murphy Award for Public Service in 1988 ars, judges, and lawyers met to discuss the stance abuse or other problems. My cur­ in recognition of his long career serving the state of scientific evidence in the rent career path is a complete reflection of public in a variety of ways. In 1992, he was American court system and to consider a both my mother and father, two people honored by the National Center of State proposal by the Center to offer a program who have spent their lives committed to Courts with its Distinguished Service to certify impartial expert witnesses who public service-serving the underserved Award for trial judges for his "outstanding would assist judges in trial courts, both and less fortunate." contributions to the administration of jus­ state and federal. PEGGY SEEGER tice nationally and for the work he has Wetherington served for one semester done for the Center." as a visiting professor at the South Texas College of Law, and assisted in teaching a Back at Duke mediation course. "Among other activi­ ties, I'm also going to serve as vice presi­ After serving the Dade County Court dent of judicial education for the Private System as its chief for 10 years, Adjudication Center and work on special Wetherington served in the general juris- projects involving judicial education and

PERSPECTIVE DUKE LAW MAGAZINE • 25 . :i.t.Jli'ii'ftw Neil Vidmar

During a break in trial a few years ago I Vidmar demonstrates that the evidence went to investigate a cheer from a neigh­ fails to support any of these conclusions. boring courtroom. Two of my fellow His basic argument is set forth in an lawyers had just won a jury verdict of engaging mix of statistical evidence and hundreds of thousands of dollars for a well-told stories, and it's persuasive: The client who had been injured on Halloween criticism of civil juries is much exagger­ when, blind drunk and reportedly naked ated, and the problems that do exist except for a condom beneath a Batman should be dealt with by carefully consid­ cape, he had apparently attempted to ered reforms (a subject regrettably beyond board, if not actually copulate with, a the scope of this review) rather than rad­ moving Metrobus. ical or knee-jerk changes. VVeird cases Vidmar reminds us that the alterna­ make good stories. tive to juries is judges. Why does the pub­ No one blinks at a lic think that judges are never erratic, do sensible verdict for not display marked differences among modest damages in themselves, and are not sometimes con­ some garden-vari­ fused? Lawyers know that outcomes can ety accident case. be determined by what judge they draw. Now that Court TV That's why lawyers judge-shop whenever is returning us to they can-and why well-run court sys­ those golden years tems are carefully designed to prevent of our colonial their doing so. experience when Sometimes Vidmar's argument is other people's legal almost too well made. You'd almost think misfortunes were a there were no dumb jurors, or that expe­ public sport, the rienced trial counsel are not sometimes public knows first­ compelled to settle cases based on the hand the lurid tales intolerable possibility of a runaway ver­ from one end of the dict. These occasional realities present Professo r Neil Vid m ar country to the other-OJ Simpson, difficulties for lawyers and can be is t he author of Medical Lorena Bobbitt, the Menendez brothers. wrenching for clients. But these and other Malpractice and the Some days I get phone calls from minor points do not diminish the force of American Jury: Confronting friends in far -off places like France or Vidmar's well-made case. t he Myths about Jury New Jersey demanding to know whether One thing he doesn't do is explain the In competence, Deep we should amend the Constitution to get gap between the evidence and the percep­ Pockets and Outrageous rid of jury trials in favor of panels of tion, especially among physicians, of how Damage Awards. This experts [like my friends). Meanwhile, op­ juries behave. That subject is beyond the review of his book is ed prescriptions for fixing a system with scope of this book, but the question is illu­ written by Joel F. Brenner, which most op-ed writers have little or minating. In most of their encounters with who practices law in no experience appear regularly. The weird non-professionals, professionals exercise Washington with Storch cases are driving the public debate. power. For a physician to be suddenly & Brenner. It appeared For anyone really interested in the evi­ forced to submit to the judgment-espe­ in The Wash ington Post dence about the daily grind of the court­ cially in the area of his or her expertise­ on De cember 24, 1995. house mill, Neil Vidmar's Medical of a dozen retired postal workers, cocktail Malpractice and the American Tury is a waitresses, and folks for whom 40 bucks a good place to start. Vidmar confronts the day is good money is an enraging experi­ usual rap on civil juries: that they're errat­ ence. Nor is the fear confined to physi­ ic, decide cases differently from the way cians. Lawyers feel it too, especially judges or experts would, render judgment lawyers who rarely try jury cases. Juries more readily and in larger amounts against figure you out in a flash. This is scary, but wealthy defendants, are suckers for mere­ hardly a demerit in the system. tricious experts, and are easily and often confused. Drawing on a large sample of © 1995. The Washington Post. Reprinted with permission. medical malpractice cases from populous North Carolina counties and a review of the literature from other jurisdictions,

26 • DUKE LAW MAGAZINE SPRING 96 Clark G.Havighurst ':t+g'i'hWMW

PRIVATE CONTRACTS AS INSTRUMENTS OF HEALTH REFORM

Health Care Choices is primarily con­ Th e following is a summary of the book cerned with the effectiveness of private Health Care Choices: Private Contracts as contracts as instruments memorializing Instruments of Health Reform by professor the choices that consumers make in pur­ Clark C. Havighurst. "Health Care Choices is an importan t, even seminal scholarly accom ­ chasing health care. Its objective is to plishment. It presents a morally powerfu l inspire organized health plans to write vision of what health care m arkets might contracts with their subscribers that someday accomplish," according to a {anu arr 3 review in The Journal of the American address the cost problem that so bedevils Medical Association. health care in the United States. Only by doing so can they give consumers a full range of health care options. Without contract. Ordinarily, when purchasers better contracts, consumers can choose contract for the future delivery of com­ only different versions of the same cost­ plex goods or services, the sales contract ly product-state-of-the-art, American­ con tains detailed specifications of the style medical care. The book suggests purchaser's requirements. In contrast, how health plans could offer contracts today's health care contracts are unspe­ cific concerning the nature, quality, and content of the services to be provided. The failure of private contracts to specify patients' entitlements in health care transactions has made them ineffec­ tive as instruments of consumer choice. The absence or inadequacy of crucial terms in health care contracts has meant that all concerned have had to look else­ where for definitive decisions concerning the specific services to be provided. The bundle of rights belonging to each con­ sumer is ultimately established by judges, juries, and medical expert witnesses. As construed by these arbiters, patients' enti­ tlements have come to include the legal right to expect-and to demand at little or no direct cost to themselves-the provision of many health services having Clark C. Havighurst that authorize providers to take efficient, a low probability of significant benefit. is William Neal responsible cost-saving measures that are The adverse cost and legal conse­ Reynolds Professor deterred by legal risks today. quences of inadequate health care con­ of Law. Health Care tracts have become increasingly serious. Choices is published Contract Failure in Health Care With physicians, technology suppliers, by American and hospitals free to sell ever more cost­ Although immense market-driven changes ly goods and services with little reference Enterprise Institute have occurred in the financing and deliv­ Press. to cost considerations, health care costs ery of American health care since the have risen to levels now regarded as 1970s, it is still not clear that health plans unbearable. At the same time, the courts and providers are fully responsive to con­ picked up the costly professional stan­ sumer choice. The market failure that dards and customary practices emerging causes the cost of health care to remain in the dysfunctional marketplace as ref­ beyond effective control by its purchasers erence points for defining the coverage is, in the last analysis, a failure of private obligations of health plans and for detect-

PERSPECTIVE DUKE LAW MAGAZINE • 27 ing substandard care in A Precis for Health care contracts in use today pro­ malpractice suits. The Policy Makers vide no legal authority for challenging spending on benefit-cost grounds. Instead, health care industry thus With a view to capturing virtually every contract makes a commit­ has operated for many the attention of busy ment to provide all "medically necessary" years as a kind of regu­ policy makers, the care, defined by reference either to profes­ lated industry, under book's themes are con­ sional standards or to efficaciousness. legal standards that have nected to issues in the Indeed, contract failure is significant never been formally movement for health precisely because it reflects implicit or adopted as public policy reform. Instead of pro­ explicit acceptance of medical efficacy and that have increasing­ posing a complete alone-what might be called an "any-ben­ ly lost touch with eco­ national health policy, efit" test-as the sole criterion for deciding nomic reality. however, the book what care should be provided and financed. Why have private argues only that con­ Because industry custom and professional contracts not been tracts could strengthen, practice generally embody this same stan­ employed to help con­ and could in turn be dard, the legal system threatens to give it sumers and providers strengthened by, a vari­ escape the tyranny of the force of law in every case. ety of policy initiatives. Another feature of today's contracts inefficien t standards? In particular, it demon­ Ascribe much of the between health plans and their sub­ strates how better health scribers is their disclaimer of responsibil­ blame to a paradigm of care contracts would ity for the quality of care actually medical care that denies advance the objectives of provided. Most plan-subscriber contracts consumers any say in the nature of the the managed-competition strategy of perpetuate the idea that financing entities services provided. In addition, courts have health care reform and, indeed, are do not provide health care but merely been reluctant to enforce contracts that necessary to fully realize those objectives. enable its provision by licensed providers. might have been fair ex ante but that The book uses the 1993 Clinton reform This notion is another tenet of the pro­ appear to cause avoidable hardship when bill to illustrate the jeopardy in which the fessional paradigm of medical care and viewed ex post. reform movement placed health care con­ finds expression in legal rules against Although HMOs and other managed­ tracts. It also shows how that bill might the "corporate practice of medicine" and care plans are currently rationing some have been written to leave contracts a in industry resistance to recent propos­ care, they are doing so without clear legal role in implementing consumer choices. als to establish" enterprise liability" for authority. The consumer-driven revolu­ medical malpractice. tion in health care will remain unfinished Failures to Define Obligations Under a similar line of thinking, pro­ as long as private contracts do not serve fessional-patient relationships are not a consumers as explicit instruments of The book demonstrates both that private matter of contract. Yet deriving the rights choice and as legal authority for the health care spending in the United States and responsibilities of parties from their degree of economizing that consumers is out of control and that the instruments by which consumers might exercise con­ relative stations in life, rather than from elect. Yet contract failure and impedi­ their voluntary contracts, is reminiscent ments to freedom of contract have never trol-private contracts-have been near­ ly useless for that purpose. It calls of prerevolutionary America, when, as been addressed in policy proposals. historian Gordon Wood reports, contracts Although this book documents the fail­ attention to the "benefit-cost no man's land" in which health plans must fight were "patriarchal" and served merely "as ure of today's contracts to customize the evidence that the parties to the relation­ economically inappropriate health spend­ standards under which health services are ship, however unequal, had mutual rights ing. As the metaphor implies, any effort provided under individual health plans, it and obligations established in custom." to fight the battle on the ground that mar­ also shows how a new generation of Instead of empowering consumers, ginal costs exceed marginal benefits is health care contracts could give con­ today's health care contracts simply likely to draw heavy fire, including liti­ sumers just what they are willing and deliver them into the hands of self-gov­ gation. Responsible economizing is thus able, with some government assistance, erning professional elites. Introducing systematically deterred, accounting in to pay for. freedom of contract in health care is a large measure for the failure of health care truly revolutionary and democratic idea. contracts to address critical issues.

28 • DUKE LAW MAGAZINE SPRING 96 Using Contracts for Consumers would face only limits alternative dispute reso­ Writing a contract that fully specifies an to which they had previ­ lution [ADR) mecha­ administrable alternative regime under ously agreed, at least in nisms in this process, which to finance and deliver health ser­ general terms. recommending that in­ vices is a daunting task. Nevertheless, the Health plans are dependent arbiters be book provides numerous recommenda­ advised to cease their charged not with making tions, including actual contract language, common practice of treat­ de novo determinations for specifying crucial features of health ing "experimental" tech­ of coverage but only with care transactions. The goal is both to nologies differently from evaluating the reason­ induce creative lawyering in the rewrit­ other services and, ableness and procedural ing of health plan contracts and to instead, to approach all integrity of the plan's demonstrate for policy makers and skep­ health care choices in the interpretation. tics the reasonableness of many innova­ same plan-specific, appro­ Among the entitle­ tions that contracts might accomplish. priately cost-conscious ments implicitly con­ Many health care contracts now are being way. It is not only new ferred on patients by the offered under conditions that give con­ technologies that lack a legal system is the right sumers enough choice and information to solid foundation in health to obtain a particular legitimize alternative legal regimes that services research or that kind of legal redress consumers might elect to govern their involve difhcult trade-offs for whatever the law health care. between benefits and [not the provider-patient Contracts are proposed to knit the costs. The current policy of covering pro­ contract) defines as medical malpractice. various parties into a single, integrated cedures only if they are accepted in med­ Private contracts can be written to intro­ transaction coordinating the legal respon­ ical practice is a vivid demonstration of duce substantial reforms of patients' mal­ sibilities of providers with the financing how health plans have abdicated their practice rights and remedies. Indeed, any obligations of the health plan. The book responsibilities for product design in favor of the reforms being proposed for legisla­ also suggests different ways in which of the medical profession. A vital point to tive adoption might also be adopted health plans could articulate varying be gained by innovative health care con­ by contract. The book suggests clauses degrees of coverage to tracts is the freedom of a for introducing ADR, limitations on expand the economizing plan, acting through its damages, and modifications of the opera­ options of consumers. physician agents, to con­ tive standard of care as well as more One approach is to incor­ sider both benefit-cost radical reforms. porate selected practice trade-offs and the state of In sum, this book offers drafters of guidelines in the contract scientific evidence in health care contracts not only food for as a way of defining the deciding coverage issues further thought, but also actual ammu­ plan's obligations in par­ of all kinds. nition for revolutionary action in the no ticular clinical situa­ A crucial element in man's land of benefit-cost trade-offs. As tions. Greater specificity an innovative contract is private health plans exhaust the cost-con­ in contracts will dimin­ the procedure by which tainment possibilities of cost sharing, of ish disputes and improve the plan gives effect to categorical limits on coverage, of utiliza­ the conditions of medical its contractual standard tion management, of new methods of practice by giving physi­ in individual cases. payment, and of selective contracting cians advance guidance Although plan personnel with providers, they soon will be search­ in treating their patients, would interpret the con­ ing for better legal authority for hus­ obviating much of the tract in the first instance, banding the resources that consumers micromanagement they it is essential to provide entrust to them. This book shows the currently encounter in an expeditious appeal potential value of freedom of contract in managed-care plans. mechanism for close meeting the challenge of spending re­ Patients, instead of fac­ cases. The book offers sources wisely on health care. III ing sub rosa rationing, insights on the uses of

P E RS P ECTIVE DUKE LAW MAGAZ I NE • 29

THE DOCKET

The important role that ethics play in More than 60 legal scholars and deans legal education at Duke Law School met at Duke Law School to discuss the earned national recognition in two lead­ teaching of legal ethics during the two­ ing arenas in recent months. us. News day symposium in November. Over the etJ World Report recognized Duke's lead­ past five years, the Keck Foundation has ing role in this field in the magazine's made grants to 23 law schools and other

annual rankings issue, II America's Best organizations to develop innovative ETHICS MATTER Graduate Schools/' published March 18. approaches in the teaching of ethics. The And in November, leading legal scholars objective of the symposium was to share IN and law school deans convened at Duke the lessons learned by those receiving the to attend the "Symposium on Teaching Keck grants. LEGAL Ethics and the Legal Profession/' spon­ Law school representatives gave pre­ sored by the Law School and the W.M. sentations on their approaches to ethics EDUCATION Keck Foundation, a leading supporter of education. Duke's approach is to develop ethics in legal education. specialized courses that typically are

The us. News article, entitled II A taught through advanced seminars, in Move to Ethics," reported that law schools addition to the standard required course. are putting "more emphasis on teaching Metzloff contends that students are bet­

right from wrong. II The article began by ter served by examining ethical dilemmas describing a Duke Law School seminar in through concrete, factual examples, rather which federal judge William Hoeveler, than evaluating ethical issues only from who heard the case of Manuel Noriega, theoretical or philosophical perspectives. warned Duke students: "I guarantee that Duke Law School has developed a sometime you will be asked to do some­ series of advanced course offerings in thing dishonest. Your future lies in that the areas of ethics and professional Judges William moment. Even if you have kids and a big responsibility. During the 1994-95 acad­ Hoevele r, at left, mortgage, there's only one answer: 'No.' II emic year, the Law School offered a suc­ and Gerald "For generations, the subject of ethics cessful series of nine advanced ethics Wetherington '63 was little more than a throwaway in the offerings. Student interest was high, evi­ taught a seminar curriculum at most law schools/, Ted denced by oversubscription in three of the on the ethics Gest wrote in us. News. "Duke's empha­ courses. The spring semester offerings of judicial de cision sis on ethics typifies a new focus on provide a rich array: Ethics and the making. courses in professionalism at many of the Government Lawyer; Ethical Consid­

nation's 178 accredited law schools. II erations in Corporate Law and Practice; The article reported that Duke offers Deals, Government, Crime, and the a required week-long course for first-year Attorney; Lawyers in the Criminal students each January, as well as advanced Setting; and Seminar in Medical-Legal­ ethics seminars in which 40 percent of Ethical Issues. upperclass students enrolled in the past In fall 1994, two faculty seminars were two years. "They hunger for these kinds held to enhance substantive knowledge of discussions," Duke Law professor and to assist in curricular development. Thomas Metzloff told US. News. Professor Ted Schneyer of the University

Because the required ethics course of Arizona discussed II An Institutional taught at most schools historically has not Approach to Legal Ethics," and New York been popular with students, Keck sympo­ University law professor Stephen Gillers sium participants explored innovative shared his use of a videotaped series of approaches to improving its teaching. liThe ethics scenarios. seriousness of the endeavor was demon­ Metzloff is eager to repeat the expand­ strated by the participation of deans from ed seminar on the ethics of judicial 14 of the country's leading law schools/' decision making. Hoeveler, senior judge said Metzloff, symposium organizer. for the U.S. District Court for the Southern District of Florida, and Gerald

THE DOCKET DUKE LAW MAGAZINE . 31 THE DOCKET

Wetherington '63, circuit judge for Dade research technology which tracks rele­ Students Pursue Thorny County, Florida, taught the course in an vant ethical material on a state-by-s tate Legal Problem All the Way intensive, four-hour per day format over basis on a CD-ROM. Another session the span of a week. The seminar covered dealt with the special issues surrounding to the Balkans such diverse topics as the regulation of ethics education for judges. hat began as a pro bono project for judicial free speechi the meaning of The Keck symposium also considered W law students Dylan Cors and Siobhan impartiality and independencei recusali priorities for law schools and foundations Fisher blossomed into an independent pro­ judicial accountabilitYi and judicial man­ regarding future funding of ethics pro­ ject that took them to the Balkans for seven agement of institutions. grams. Investments in ethics was a source weeks of research. "Our experience with the judiCial of debate at the "Deans' Roundtable," as Cors and Fisher traveled last summer to responsibility course was particularly tight budgets affect law schools' alloca­ Belgrade, Serbia, and Zagreb, Croatia, to positive," said Metzloff. "Our hope for tion of resources. Still, deans remain study the sentencing practices of the for­ this course was to provide students with interested in improving their ethics pro­ mer Yugoslavia. Their find ings will serve as an introduction to and an appreciation for grams spurred on by the strong views of the special responsibilities of judges with­ alumni and bar officials to bolster such an academic resource for the U.N.-estab­ in our law system. Too often, law schools offerings. lished International Criminal Tribunal for the focus exclusively on the role of the lawyer This climate makes fo undation sup­ forme r Yugoslavia looking at war crimes in as advocate rather than the lawyer as port increasingly important for future the civil war. decision maker. Increasingly, lawyers are advancements in the ethics field. The The project was the ideal forum to syn­ playing more diverse roles. Many law stu­ Keck Foundation is one of only a handful thesize the students' special interests, skills, dents serve as judicial law clerks. of foundations that has supported law and work experience with the study of law. Alternative dispute resolution programs schools in achieving major curricular Both are enrolled in the JD/LLM program rely on attorneys as arbitrators or media­ changes. It has invested $5 million in this in international and comparative law at tors to assist in solving disputes. More area since 1991. Duke. Cors is a MIT physics graduate who clients are asking attorneys to assist in "The W.M. Keck Foundation confer­ spent a year studying in Australia and two dispute resolution rather than litigate. ence was an intellectual feast," said Dean years as a field engineer on oil rigs in So our seminar was a response to these Pamela Cann. "Curricular innovation Southeast Asia. Fisher is a Stanford graduate trends-by providing our students with accomplished by the law schools was very who studied in Berlin and lectured at the insights into the responsibilities of a Significant, and these innovations will be University of West Bohemia. She developed judicial decision maker." shared with law schools generally. The her skills as an interpreter fo r several East­ Another approach to teaching ethics is conference participants also noted sever­ West joint ventures and as a researcher for the "pervasive method" of integrating al remaining shortcomings-in particu­ an Eastern European economic journal. ethical considerations in a number of lar, not enough law schools have faculty "Our interest in legal issues surrounding other substantive law courses. Other dedicated to research and teaching in the allegations of war crimes in the former methods include the use of clinical or ethics as their primary responsibility. Yugoslavia came out of our involvement in simulated clinical settings and an "oral Until law schools treat legal ethics and a pro bono project at the Law School," said history" seminar that pairs students with professionalism as a serious subject fo r Fishe r. "Fifteen students researched unre­ distinguished members of the profession research, the supply of faculty in the solved issues that arose when, in 1993, the or an interdisciplinary approach. field will remain thin. I believe that A primary focus of the W. M. Keck this is the next area to be tackled by the U.N. Security Council created the first Foundation grants has been on teaching law schools." major international criminal tribunal since legal ethics within law schools. Still, Duke's Law eJ Contemporary Problems the post-World War II trials at Nuremberg some of the foundation-funded programs will publish a special edition of the Keck and Tokyo. Our group focused on the issue included elements that dealt directly symposium papers. The journal is one of of criminal sentencing, such as what form with the profession. The University of the most widely circulated law journals of punishment a person would receive if Texas works with practicing lawyers, in the United States and abroad. til convicted by the new tribunal." with students having the option of attend­ Fisher and Cors learned more about the ing confidential disciplinary actions tribunal when the Law School's Center on against lawyers. Cornell University pro­ Law, Ethics and National Security sponsored fessors Roger Cramton, a member of the conferences on international humanitari­ Duke Law School's Board of Visitors, and an law, a field that includes war crimes. Peter Martin demonstrated a new (See page 36.) They met Judge Richard

3 2 • DUKE LAW MAGAZINE S PRI N G 9 6 THE DOCKET

Goldstone, a South African jurist who is the chief prosecutor for the tribun al, his senior legal adviser William Fenrick, and others associated with the tribunal. The students received fe edback on their pro bono project and their ideas for an independent research project. If a busy schedule Ne tscape: Duke Unluerslty Sc hool or l aw >- The two became intrigued by criminal is preventing a trip to sentencing by the International Tribunal. the Law School, II "In determining the appropriate punish­ visit the Internet ment, the International Tribunal is directed where you will find to follow the general practice of the courts our new site on the of the former Yugoslavia regarding impris­ World Wide Web. onment," said Corso" There is a simple, Point your browser at but thorny problem involved in this.The tri­ http://www.law.duke. bunal is precluded from passing the death edu. There you will penalty, but the law that it is directed to fol ­ find the alumni calen­ low-the civil code of the former dar, information Yugoslavia-included the death pe nalty as about faculty, interna­ an option. Moreover, a maximum duration tional programs, on prison sentences in the former Yugoslavia upcoming events, the was set at 15 years, or 20 in special cases. weekly Herald, links c: In interpreting the provision directing 1\1 recourse to the law of the former Yugoslavia. the International Tri bunal will have to decide _ a N8Uc.cpe: uun unluen,ly scnool Of lOw \;o ntents "098 whether the former Yugoslav sentencing to other Web sites framework will place limitations on its own and more. The Law maximum sentencing competency." DU!/('/ '/lIICI\I'\ SCHOOL OF LAW School launched the Legal analysis of how that provision Gt:Ut: I.lllflform.IWIII -.< Web site in October should be applied required an in-depth to foster both ~lud(,111 \Clltm(~ &: PuhllcallUll<' investigation of the law of the former external and internal communication. Yugoslavia. "For us, this provided an oppor­ tunity to study civil law, the legal system prevalent in continental Europe and some­ what different from the English an d American common law' system. It also pro­ vided an opportunity to examine the legal and political evolution of an ex-Communist country undergoing vi olent change, as well as the motivation to undertake an intensive language study. since we would conduct our primary research in Serbian an d Croatian," said Fisher. The opportunity was ripe. too, since the two would be in Brussels in July attending Duke's Institute in Transnational Law. "We wanted to use the rest of the summer to augment our direct study of international legal issues," said Fisher.

THE DOC K ET DUKE LAW MAGAZINE • 33 THE DOCKET

Cors and Fisher raised funds to support what seemed to be a random order. We Gender's Role in the project from the Law School, Peter are accustomed to going into stacks and Higher Education Lange and the office of the vice provost for browsing through books and journals, but academic and international affairs, and an there you had to request a specific book and diverse group of interdisciplinary schol­ interdisciplinary fund established by Duke the librarian would bring it out for you ." Aars and legal practitioners from across professors Benedict Kingsbury of the Law "The best we could do was look up a the country gathered at Duke in February School and Joseph Grieco of the political title that seemed somewhat relevant and to explore the role gender plays in higher science department. Preparation for their then follow our noses," Cors said. "Much of education. The Duke Journal of Gender Law travels included intensive language study, what we pored through wasn't exactly on & Policy presented "Gender & The Highe r versing themselves in relevant legal issues point, so when we found something that was Education Classroom: Maximizing the and historical background, and arranging useful we latched right on to it. Creativity, Learning Environment" February 16-17 at logistics for the summer stay. They also persistence, and patience were required to the Sanford Institute. established contacts with law professors, unearth pertinent materials, but our efforts The conference explored the legal issues attorneys, and court officials in Zagreb were rewarded. We returned home with arising from the existence of government­ and Belgrade. many journal articles and penal code provi­ supported, single-sex educational institu­ Although they never came close to the sions related to our narrow topiC of long­ tions; publiC policy issues relating to war front, a late bombing assault in Croatia term prison sentences." separate schools and programs for women changed their plans. Initially, they intended The students deemed the project a suc­ and men ; and social issues relating to to spend most of their time in Zagreb, but cess, one that complements the interna­ gender-based differences in learning. Duke the risks associated with the bombing cam­ tional training they are receiving at Duke. president Nannerl Keohane opened the paign convinced them to head to Belgrade "Conducting this research has been an inte­ conference. Professor Jane Roland Martin, instead, and conduct as much of the gral part of our legal education ," Cors said. professor emerita of philosophy at the research as they could there. (They later "By creating and executing the project, we University of Massachusetts, Boston and found out that one of the bombs fell just not only became well-versed in a rapidly author of Changing the Educational Land­ 40 yards from the law school's front door.) developing area of international law, but also scape and Reclaiming a Conversation, gave This presented last minute complications of worked in a domestic legal system in a dif­ the keynote address. daunting proportions. For example, the ferent language. Through this combination, Duke Law professor Katharine Bartlett U.N.-mandated sanctions on the former we familiarized ourselves with the issues moderated a panel on single-sex versus Yugoslavia prohibited international mone­ surrounding the sometimes painful devel­ coeducational learning. The recent Virginia tary transactions. This meant that credit opment of the international community." Military Institute and Citadel litigation cards and travelers checks were not an Cors and Fisher plan to put that educa­ served as a platform to explore questions option, and they had to use cash. tion to use in their professional endeavors. of educational policy and gender equity. One They spent much of their time in the law They have written an article based on their of the panelists was Ron Vergnolle '94, a library of the Law Faculty of Belgrade. findings , which they are submitting for pub­ Citadel graduate who received a JD/LLM Previously made contacts proved helpful as lication in a legal journal. Cors intends to in transnational and comparative law from they po red through the criminal code com­ study and work in the area of energy law Duke. Vergnolle, who practices in the mentaries, scholarly articles, and legal with a focus on Russia and other former Washington, D.C. office of Baker & Botts, gazettes to determine what were the Soviet states. Fisher's goals focus on the served as a witness on Shannon Faulkner's standard sentencing practices for the types reconstruction process between East and behalf in The Citadel case. of crimes in which the tribunal would be West, in pa rticular facilitating mergers, A second session examined the class­ interested. investments, and joint ventures in Eastern room dynamics and the university environ­ "We received a lot of cooperation from Europe and Russia. III ment as influenced by gender and race. the faculty members we had contacted," Pane li sts discussed recent observational Fisher said. "But legal research in Belgrade studies and explored the cu rrent campus and Zagreb was quite unlike anything we had and classroom climate for women, men and experienced at Duke. The concept of minorities in undergraduate, graduate and research librarian is essentially a fantasy. professional institutions. The conference There were few computers, and the index ended with an exploration of strategies for cards in the card catalogues were placed in change and how to optimize the education­ al experience for men and women. This

3 4 • DUKE LAW MAGAZINE S PRING 9 6 THE DOCKET

panel explored various strategies that Legal address gender inequities at the graduate professionals and undergraduate levels, including cur­ from riculum transformation, alternative class­ around the room models and the transition from the world came classroom to the workplace. to Duke Also speaking at the conference was to learn law professor Linda R. Hirshman, director about the of the Women's Legal Studies Institute at U.S. legal Illinois Institute of Technology, Chicago­ system. Kent College of Law. In the September issue of Glamour she wrote about a study of women's potential at various law schools, finding that "some law schools offer more opportunities fo r success for Good Global Citizens their women students than other schools do." The study re-ranks the U.S . News & he Law School expanded its role in the with Justice Willis Whichard of the Supreme World Report top 20 law schools, placing Tglobal community by hosting two pro­ Court. Three of the delegates gave a pre­ Duke in the No. I spot as the law school grams on the U.S. legal system for profession­ sentation at the Law School on Chinese ranked highest fo r developing women's als from around the world du ring the past year. property and securities law. The Law potential. Judges, attorneys, and academics from 21 School expects to hold additional programs Schools were ranked by comparing the nations in Africa, the Caribbean, the Middle with the Shanghai Bar Association. III percentage of female students with the per­ East, and Southeast Asia attended a day-long centage of female students on law review. presentation on U.S. legal education at the "At Duke , for instance, women made up 40 Law School in July. The U.S. Information percent of the classes involved and 48 pe r­ Agency and the Triangle International cent of law review members," according to Visitors Council sponsored the program, Hirshman.The study found a high percent­ which was organized by Jennifer Maher '83, age of female faculty members at law senior lecturing fellow. Charles Becton '69, schools where female students excel. Duke a Raleigh attorney and senior lecturing fel­ had 21 percent tenured or tenure-track low, explained the importance of experien­ female professors in 1994. tial learning and practical skills training in Symposium planning and fund raising U.S. law schools. The group attended class­ were done entirely by students, under the es, learned about curriculum and faculty di rection of Loren Montgomery '96. The development, and attended a seminar on symposium was the third in an annual teaching ethics and professional responsi­ series. The Duke Journal of Gender Law & bility. They also attended a session on law Policy will publish a symposium issue con­ school/university relations and law school! taining conference papers. III bar relations led by Paul Carrington, ajor General William K. Chadwick professor of law and dean emer­ Suter, clerk of court for the itus, and watched a demonstration on the MSupreme Court of the use of computers in legal education. United States, visited the Law Seven delegates from the Shanghai Bar School October 27 at the invita­ Association spent three days at the Law tion of long-time friend , professor School and in courts and law offices in Robinson Everett. Suter gave a 1997 Gender Durham and Raleigh in November. Hosted behind-the-scenes look at the Law Conference by professor Jonathon Ocko, they visited the Supreme Court and met with stu­ offices of Parker, Poe, Adams & Bernstein dents and Moot Court Board February 14-15 and Jack Nichols, and met with representa­ members. tives of the North Carolina State Bar and

THE D OCK ET DUKE LAW MAGAZINE • 3 5 THE DOCKET

Building Intellectual Capital Around the Globe eveloping a greater understanding of Dlaw In a global economy is the driving force behind a series of programs spon­ sored by Duke Law School. The most effective and appropriate roles for justice systems to respond to mass crimes committed in the context of violent conflict will be the focus of "Justice in Cataclysm: Criminal Tribunals in the Wake of Mass Violence." The confer­ ence will be held in Brussels July 20-21 by Duke Law School in conjunction with the Office of the Prosecutor of the International Tribunal for the former Yugoslavia and Rwanda. Leading legal scholars and interna­ tional lawyers, including personnel of the Atlanta Mayor Bill Campbell '77 returned to the Law School in November International Criminal Tribunals for Rwanda to talk with students and (acuity. "Cities are in crisis today," he said. and the former Yugoslavia, will examine the "The challenges are so great it requires a reordering o( our priorities." appropriate roles of national and interna­ tional criminal justice systems in respond­ ing to war crimes, genocide, and crimes against humanity. Panel topics will include foundations. For more information, contact four-week summer institute is designed for national prosecutions in collapsed justice Morris at (919) 613-7049 or e-mail her at students and young professionals with systems and prospects for international [email protected] . interests in international and comparative assistance; international and national tri­ Other global activities for the Law law and transnational practice. It is part of bunals and the implications of concurrent School include the second Asia-America the fully accredited curriculum of the Law jurisdiction; issues confronting the interna­ Institute in Transnational Law, offered School and approved by the ABA. Institute tional criminal tribunals for the former jointly with the University of Hong Kong students are invited to attend "Justice in Yugoslavia and Rwanda; prosecutions and Faculty of Law, July 7- August 6. The Asia­ Cataclysm." l1li the reconciliation process; and alternatives America Institute is designed to address and adjuncts to criminal prosecutions. the educational needs of young profession­ LENS Center Sponsors Duke law professor Madeline Morris, als in law and business who are engaged Programs who is organizing the conference, will serve in, or plan to enter, transnational practice he Center on Law, Ethics and National on the national prosecutions panel. Justice in Asia or work in corporations and finan­ Security (LENS) made significant con­ Richard Goldstone, prosecutor of the cial institutions doing business in Asia. T tributions to the international legal commu­ International Criminal Tribunal for the The study program offers accredited cours­ nity by sponsoring conferences and teaching former Yugoslavia and Rwanda, will give a es in comparative intellectual property, seminars during the 1995-96 academic year. major address. Goldstone visited Duke Law comparative and transnational solvency, LENS sponsored "National Security Law School in 1994 to meet with faculty and international business transactions in China, in a Changing World: The Fifth Annual students, two of whom were inspired to Taiwan, and Asia; international human rights; Review of the Field" in conjunction with the undertake an independent study project of introduction to American law for non-U.S. Standing Committee on Law and National sentencing practices in the former students; and transnational securities law. Security of the American Bar Association. Yugoslavia. (See page 32.) The Summer Institute in Trans­ The two-day conference in Washington, "Justice in Cataclysm" has received national Law sponsored by the Law D.C. reviewed developments in national funding support from the Carnegie School and Faculty of Law of the Universite security law and dealt with such timely Corporation, U.S. Institute for Peace, Libre de Bruxelles will be held July 7- issues as the press and national security, Duke University, and several individuals and August 6 in Brussels. The I Ith annual,

36 • DUKE LAW MAGAZINE SPRING 96 THE DOCKET

reinventing the intelligence community, problems in counterintelligence, addressing the threat of domestic terrorism, and the DEDICATED TO DURHAM continuing challenge of international ter­ undreds of Law School students, Volunteers warmed with calisthenics rorism. Governor Frank Keating of Hfaculty, and staff set their alarm clocks before they contributed more than 500 Oklahoma addressed the issues involved in to rise early on a Saturday morning last hours of service to such projects as build­ the aftermath of the bombing of the August. They volunteered their day-and ing affordable housing, cleaning up highways, Oklahoma City federal building. He said sweat equity-to tackle service projects for preparing meals for the hungry, and reno­ that the greatest lesson of the Oklahoma local non-profit organizations as part of vating a shelter. City bombing is that terrorism cannot the second "Dedicated to Durham ." Now an on-going program, "Dedicated overcome the spirit of free men and women "Dedicated to Durham" debuted in to Durham" was designed to strengthen who value, respect, and emulate democratic April 1995 as part of the dedication events ties within the Law School community as virtues. for the Law School addition.That event was well as with the larger Durham communi­ "Nuremberg and the Rule of Law: A so successful that associate professor ty. A third event was held AprilS, 1996. Fifty-Year Verdict" was the second fall con­ Jonathan Wiener agreed to organize a sec­ More than 200 members of the Law School ference sponsored by LENS, the Center for ond event to "work together as a commu­ shared their time and service. III National Security Law at the University of nity for the community." He thought that Virginia School of Law, and the Center for "re-dedicating ourselves to being a con­ Law and Military Operations at the U.S. structive part of the broader Durham com­ Professor Jonathan Wiener Army's Judge Advocate General School. munity" was a positive way to begin the warms up with volunteers who Looking at the legacy of the tribunals in academic year. are "Dedicated to Durham." Nuremberg and Tokyo, the conference dealt with a variety of questions: Would a more systematic deterrence of regime elites con­ templating aggressive war or genocide serve to lessen such horrors? Can war crimes of a more regional nature, involving ethnic conflict, be successfully dealt with by U.N.­ chartered tribunals? Is there a need for a permanent international criminal court­ rather than ad hoc tribunals such as those convened at Nuremberg and Tokyo-to deal with future violations of international humanitarian law? LENS sponsored "The United Nations, Regional Organizations and Military Opera­ tions," April 12-13, 1996, in conjunction with UVA's Center for National Security Law. It examined the interrelationship between the U.N. and regional organizations, such as the OAS and OAU. It also addressed the unique status of NATO as it continues its private sector. The Honorable Kofi Annan, University of North Carolina in January. In mission in Bosnia; the President's authority U.N. Under-Secretary-General for Peace­ addition, Silliman teaches several blocks of to deploy U.S. armed forces to Bosnia under keeping, gave a major address. instruction during the spring semester at the NATO sponsorship; the adequacy of law Executive director Scott L. Silliman and various services' Reserve Officer Training to protect peacekeepers; and the issues founder Robinson O. Everett, Duke law pro­ Corps program at Duke, UNC-Chapel Hill , surrounding the refusal of the United States fessor, taught the popular national security and North Carolina State University. to honor its financial obligations to the U.N. law seminar at law schools of Wake Forest For information about LENS and The conference attracted prominent speak­ University and North Carolina Central its programs , contact Silliman at ers from government, academia, and the University in the fall , and at Duke and the [email protected]. III

THE DOCKET DUKE LAW MAGAZINE . 37 THE DOCKET

the Law School in July. "I've never met a New Leadership in External Cynthia L. Rold Relations, Admissions Duke graduate who didn't love the University," Steckley said."Development and wo staff members have joined the Law alumni relations begin with building a sense TSchool: Linda G. Steckley is associate of community.This process starts the day an dean of external relations, and Cynthia L. individual decides to become a student Rold is assistant dean for admissions and here. It's the totality of experiences­ fina ncial aid. student experiences, faculty experiences, Linda G. Steckley directs the Law School's alumni experiences-that is the essence of fund-raising and alumni operations, the Law School. My job is to enhance the with responsibilities for publications and building of this community and to develop communications. the financial resources for achieving goals determined by Dean Gann, the faculty, and the University." Since her arrival at Duke in July, Cynthia l. Rold has implemented a number of initia­ tives, including inviting pre-law advisers to campus for a weekend and hosting recep­ "In searching for someone to fill the able tions for admitted students in New York and shoes of Liz Gustafson '86," recalled Susan Washington, D.C. Sockwell, associate dean for student affairs, Rold received her JD from Northwestern, "we looked for a candidate who could lead and is a magna cum laude graduate of Carroll Duke Law School through a challenging peri­ College. She came to Duke from the Univer­ od.We recognized that strong leadership in sity of Illinois College of Law. As assistant admissions will be critical to Duke's ability dean for student affairs, she managed the to continue matriculating the best law stu­ offices of admissions, career services, and dents. We also recognized that as tuition registrar. Previously she served as director rises and students reach the limits on loan of career counseling and placement at eligibility, astute management of the finan­ Northwestern University School of Law. cial aid office is critical. Cindy Rold 's success She also worked as a summer associate record in law school administration and the Steckley came to Duke from New York with Crowell & Moring in Washington, D.C. breadth of her experience made us confi­ University School of Law, where she was and Calkins, Kramer, Grimshaw & Harring dent that she could meet these challenges." assistant dean for development and alumni in Denver. Rold was president of the National relations, and responsible for directing Association for Law Placement for 1994-95. a $125 million fund-raising campaign. A She serves on the executive committee of graduate of Dickinson College, she received the AALS Section on Prelegal Education. her MBA from the University of Miami , She served on the Illinois State Bar where she worked in key positions at the Association Committee on Legal Education, business school, the medical school, and for Admission and Competence and the edito­ the university. rial advisory board of Minority Law journal. "She is a highly regarded professional who New Toll-Free She is a member of the Illinois Bar. brings rich and diverse experience to Duke," Number for "I am gratified by the interest Duke said Dean Pamela Gann, who appointed her. alumni take in the Law School and the ad­ "Everyone has been unstinting in their praise External Relations missions process," Rold said. "The support of Linda's abilities and contributions to the and involvement of alumni is critical to our University of Miami and to New York Uni­ 1-888-LAW-ALUM efforts. Alumni help in many ways, such as versity. Many have noted that she is among encouraging students to apply, calling admit­ a handful of the very best working in the ted students to encourage them to matric­ field of university development anywhere." ulate, hosting receptions, and being Steckley had formed a high opinion of enthusiastic advocates for the School." l1li Duke long before she began her work at

38 • DUKE LAW MAGAZINE SPRING 96 • •

, I i FlatTax, VAT Tax, Anything But That Tax

faculty News Richard Schmalbeck

For those of us who work in tax policy, gerprints are quite visible on the current FLAT TAX, the first few months of years divisible by tax code. They may find it hard to per­ four are interesting times. The quadren­ suade the public that they share the tax­ VAT TAX, nial alignment of the presidential prima­ payers' pain in confronting their Form ry and tax preparation seasons rescues our 1040s every spring, and for this reason tax ANYTHING vocation from the obscurity that techni­ issues may recede a bit from the current BUT cal fields naturally attain, and temporar­ campaign. Still, gross unhappiness with ily thrusts it to the forefront of the public our tax system persists. Major changes in THAT TAX mind. This year was better than ever, the tax system seem likely in the next with each candidate proposing some new few years, and radical change is far from or recycled tax plan. One momentarily impossible. It seems a good time to ask successful candidate-Steve Forbes­ what some of the alternatives might be. even went so far as to base his entire cam­ Literally dozens of plans have been paign on his vision of the tax future. suggested, most of which can be described Interest in tax policy could not be as belonging to a category of tax systems sustained even briefly were it not for broadly referred to as consumption taxes. the widespread dissatisfaction with our Consumption taxes have two great-and current tax struc­ closely related-attractions. First, by ture. Though I removing tax burdens from income that and most of the is not consumed, they could be expected tax professionals to stimulate private savings. The appro­ I know believe priate measure of national savings is sub­ that our system ject to debate, but analysts agree that the is actually rea­ United States has one of the lowest sav­ sonably fair and ings rates among developed nations, and reasonably well most think that this is regrettable. administered, that The second, related attraction of con­ is certainl y far sumption taxes has to do with the moral from the general qualities associated with thrift, and cor­ taxpayer view. As respondingly with a tax system that one reliable baro­ encourages that virtue. Whatever we tax meter of popular we tend to discourage. Income represents opinion pu tit the return on productive deployment of in describing the labor and capital; why would we want Forbes campaign: to discourage that? Consumption, in con­ "He has captured perfectly the fury trast, is a necessary but essentially Americans feel for a system they think destructive activity; it quite literally con­ treats them like suckers while the sumes resources, making them unavail­ rich enjoy a secret tax code written just able for the future use of the current for them." l taxpayers, or for future generations. There is no little irony in this view, Burdening that activity as a means of since Forbes himself and many of his simultaneously financing the govern­ supporters are the supposed beneficiaries ment and sending the right signals to tax­ of this secret code. Perhaps the tax payers has considerable appeal. system's dismal popular stature derives With that affirmative case as back­ from the fact that rich people hate it ground, let's look at several of the possi­ because it actually is progressive,> while bilities that have been suggested within everyone else dislikes it because they the last year or so: don't believe that. A National Sales Tax: Both conceptu­ In any case, the presidential primary ally and administratively, the simplest smoke has now cleared, and the principal form of consumption tax is the sales tax. remaining contenders are men whose fin- Among its advantages is its familiarity: all

40 • DU K E LAW MAGAZ I N E S P RING 96 but five states had general sales taxes in tunately, this is always percent is added to a effect in 1994. Sales taxes appear to most imprecise, and usually state and local tax rate of of us to be easy to compute and collect, complicated. 6 percent or more, the generally without the aid of an army of A preferable means of overall tax rate would be accountants, lawyers, and auditors, and controlling regressivity is high enough to provide without the intrusiveness that many asso­ to distribute a partial tax ample incentives for ciate with current income tax system. rebate to all households, buyers and sellers to find Senator Lugar (R-Indiana) has proposed in fixed amounts that ways to avoid reporting such a tax, at a rate of 18 percent, as the depend only on family taxable sales. In fact, tax primary federal revenue source. size. This provides some administration experts Of course there are some problems. relief from regressivity, believe that a sales tax The first has to do with the scope of the but at some additional rate very much above 10 tax. To keep the tax rate as low as possi­ administrative and com­ percent would not be fea­ ble, the base against which it is assessed pliance costs: taxpayers sible due to enforcement must be as broad as possible. But most must presumably file problems.' state and local sales taxes are assessed some sort of statement A Value-Added Tax: only on sales of goods, not on services. In regarding their eligibility A value-added tax (VAT) an increasingly service-oriented econo­ for the credit, and some is a tax under which my, a national sales tax could not afford government agency must businesses are assessed to be so generous with its exemptions. verify the accuracy of the family size on the difference between the cost of their But how will Americans feel about adding claimed, and that no claim for that year purchases and the volume of their sales. 18 percent to their doctors' bills, their col­ had already been made, and must also Although the tax rate would be about as lege tuition payments, their apartment process payment of the rebate. These costs high as in the case of a retail sales tax, the rent? In addition to the surprise of having would undoubtedly be smaller than the tax collection is spread over the entire these things taxed, there are other more costs associated with the current income chain of production, from initial manu­ deeply troubling conceptual conundrums. tax systemj but they would not be facture through the distribution and retail For example, how should we tax the pur­ insignificant, and the amount of progres­ networks. This spreads the compliance chase of a life insurance policy, where sivity that could be achieved through burdens more equitably among business­ some part of the payment is for services, these devices would be quite limited. es, and also yields a lower tax amount col­ but another part functions more like a The greatest administrative problem lected at each point in the production savings account, creating a life insurance with a national sales tax, however, is like­ chain, with concomitantly lower incen­ reserve for the policyholder? These ques­ ly to be in its enforcement. Enforcement tives to try to evade the tax on any single tions are not easily answered. Most of the problems begin with bald-faced noncom­ transaction. available options either ignore the prob­ pliance, as might be expected from ped­ Otherwise, the advantages and disad­ lems-which means tolerating unfair­ dlers, sellers at flea markets, and other less vantages of value-added taxes closely ness-or add a good deal of complexity to formal participants in the economy. But resemble those of a national sales tax. a tax system whose simplicity is sup­ a more insidious and probably greater Incentives are provided to be thrifty, to posed to be one of its great strengths. enforcement problem stems from the fact avoid immediate taxation by saving Another problem with a national that a retail sales tax puts a great deal of rather than spending one's income. But a sales tax is a problem that is endemic to pressure on the determination of when a value-added tax tends to be regressive, all consumption taxes: they tend to be retail sale has taken place. With only final and can only be made less so at some cost. regressive. Lower-income households sales subject to tax, buyers would have The several VAT proposals currently spend a larger proportion of their incomes incentives to portray their purchases as under discussion in Congress include on domestic retail purchases than middle intermediate ones, whether they were or some creative approaches to the regres­ and higher income households do, and not, and sellers would have an incentive sivity problem. The bill sponsored by will thus face higher average tax rates to believe those claims, so as to reduce the Rep. Gibbons (D-Fla.) would retain an unless something is done to mitigate this gross prices of their goods and services. income tax on very high income taxpay­ effect. One mitigation mechanism is to Reasonable control of abuses of this sort ers. The revenue generated by this in­ exempt-or tax at lower rates-certain is imaginable, but it would be expensive. come tax would permit modest lowering categories of goods and services that are Enforcement problems have not been crit­ of the VAT rate, and would relieve the disproportionately likely to be consumed ical with respect to the current low-rate bulk of the taxpaying public from the by lower-income households. Unfor- retail sales taxes. But if a federal rate of 18 necessity of filing income tax returns.

FACULTY FORUM DU K E L AW MAGAZINE • 41 This approach would preserve existing ings deduction, the rate structure would have presented variants to the public. progressivity between the very rich and be about as high as under the present tax. What are the essential elements of a flat the rest of the taxpaying public; howev­ Proposals in this category have tax? As to individuals, a single rate-typ­ er, within the group of taxpayers below received considerable attention in acade­ ically about 17 percent-is assessed the threshold of the Gibbons income mic and policy-making circles. However, against that part of the tax base that tax-which is to say, among the vast they suffer from some serious defects. exceeds a fairly generous family exemp­ majority of taxpayers-this tax would First, they present considerable transition tion. The size of the exemption varies still be regressive. Alternatively, both of difficulties, stemming largely from the with the particular plan, and in all plans the next two types of tax reform present perceived need to protect existing savings varies as well with family size; typically, ways of retaining some progressivity assets from double taxation. In fairness, a an exemption of between $25,000 and within the context of a VAT-like tax, as taxpayer ought to be able to dispose of any $35,000 for a family of four is provided. will be explained below. pre-enactment assets (that were pur­ The tax base is defined to include only A Consumed-Income chased without benefit wages and salaries paid in cash, pensions, Tax: The proposals of of a savings deduction) and income from labor. Interest, divi­ this type would retain without negative tax dends, rents, royalties, and capital gains the current income tax affect. Thus, consump­ are simply excluded from the tax base in something resembling tion financed by those of individual taxpayers. its present form, but assets ought not be sub­ A tax at the same rate would also be wi th deductions for tracted from gross new assessed against all business income. The additions to savings. The savings to reach the net base of the business tax generally allows income tax has been new savings deduction. the same deductions as the present sys­ moving in this direction On the other hand, con­ tem, except that interest paid is nonde­ for a number of years, as sumption financed by ductible. Thus, business costs except more and more opportu­ liquidation of previously capital costs are deductible under this tax. nities for deductible tax-favored savings clear­ The flat tax is essentially a VAT, with savings have been added ly should reduce the a personalized element for wages. Thus, to the code. Qualified deduction for net sav­ the business tax allows deduction of all pension plans, Keogh ings. Making this dis­ purchases-as does a VAT-but also plans, 401(k) plans, and tinction in an accurate allows deduction of wages. The wage individual retirement and just manner adds a income that is taken out of the VAT base, accounts are all exam­ good deal of complexity however, is also taxed, but is assessed ples of this trend. to the USA tax, for at least as long as pre­ against the individual wage-earner, not Some of the plans within this category enactment savings assets exist.s against the business. At year-end, the would simply extend favorable treatment In addition to the complexity, the rate wage-earner reports her wage income, and to one or more additional savings vehi­ structure, as noted, is as apparently bur­ computes a tax on that amount, incorpo­ cles-specialized accounts created to save densome as the current system, or even rating the $25,000 (or more) exemption for higher education or home purchases, more so. Taken together, these features provided by the act. This accomplishes for example. In other plans, the deduction deprive the USA tax of the two principal much the same purpose as the rebate of a for net savings is more general. The most objects of tax reform sought by most sales tax might: it provides for a basic, prominent example of the latter type of American taxpayers: simpler rules and subsistence level of income to be con­ plan is the "Unlimited Savings Act" (USA) lower rates. It thus seems to deserve the sumed free of tax, and thus preserves at bill introduced by Senators Nunn (D-Ga.) characterization it has received as an least a modest amount of progressivity in and Domenici (R-NM). This plan would "inside-the-beltway" proposal. It is diffi­ the system. The flat tax thus incorporates retain the general contours of the current cult to imagine that it would generate the a personal element into what would oth­ income tax, including deductibility of sort of popular, grass-roots support nec­ erwise be a purely transactional tax. mortgage interest and charitable contri­ essary to enact major tax changes. Some proponents of a flat tax have butions, but would also allow deduction of Flat Taxes: The so-called "flat tax" has made bold claims about the effects such any new "savings assets"-a concept enjoyed an enthusiastic reception among a tax would have on the economy, sug­ defined broadly enough to permit invest­ some part of the electorate. Senators gesting that it might double the rate of ment in virtually any financial asset or real Specter and Gramm, House Majority growth. There is some theoretical support estate.' Because the base of the tax would Leader Armey, former Presidential candi­ for the claim that flat taxes favor growth: be somewhat eroded by allowance of a sav- date Steve Forbes, and a host of others lower rates and stronger incentives to

42 • DUKE LAW MAGAZINE SPRING 96 save are certainly consistent with Investors would demand re-valuation shuffle will improved growth prospects. However, the similar rates from simi­ argue vociferously for magnitude of these effects is uncertain. lar financial instru­ partial relief in the form History offers conflicting lessons on these ments, since the nature of lengthy transition issues. On the one hand, the 1964 tax cut of the borrower would rules-phase-outs, grand­ was followed by solid growth." The first no longer be a meaning­ fathering, and the like; 2) Reagan tax cut, which reduced top rates ful variable. All else those who seem likely to on investment income from 70 percent to being equal, the prices of benefit will not expect to SO percent, and cut the rates at all income (previously) tax-exempt find their windfall gains levels by about 23 percent, presents bonds would fall, and subject to transition ambiguous evidence with respect to prices of (previously) tax­ rules; and 3) Congress growth. But that act unambiguously con­ able bonds would rise. will respond to this lob­ tributed to hugely increased budget How much rise and fall would occur bying asymmetry by letting the gains fall deficits.' And it remains true that the depends on what happens to interest rates where they may, while providing at least greatest period of American economic generally after enactment of a new tax some transition relief to the losers. growth in this century occurred during system. But if we assume-just to take These observations lead in turn to a few the 25 years or so following the end of one possible outcome-that the new other predictions: 1) Whatever the revenue World War II-a period that was charac­ equilibrium rate is midway between the losses of the tax proposals in their purest terized by marginal tax rates much above two pre-enactment rates, then the value form might be, they will be exacerbated the levels that prevail under current law. of a recently-issued tax-exempt bond during the transition period; and 2) medi­ In light of this very mixed record, it would fall by about 10 percent, and the ating between those revenue losses and the would be difficult to conclude that low­ value of a recently-issued taxable bond legitimate complaints of the victims of tax ering marginal tax rates is likely to have would rise by a similar percentage. changes will lead to a web of transition any profound effects on economic growth. Predictably, the owner of the taxable bond rules that will be highly complex, yet will will enjoy her windfall gain quietly, while still leave some residual unfairness unre­ Transitions the owner of the tax-exempt bond will be lieved. If one doubts the accuracy of these There is a tax policy maxim to the effect outraged by his windfall loss, thinking­ predictions, he need only review the effects that an old tax is a good tax. There is more not without reason-that Congress has of the Tax Reform Act of 1986, which con­ to this observation than mere resistance reneged on one of the terms of his invest­ tained a number of transition rules that to change. The crucial insight of this ment contract. And, of course, local gov­ were complex, but still inadequate. And maxim is that taxpayers make invest­ ernments will suffer a detriment as a that act was of modest scope in compari­ ments based on, and in some sense, side-effect of tax reform: their cost of son to the proposals discussed here. investments in, existing tax rules, espe­ financing new capital assets will increase cially if they have reason to believe that by 10 percent or so. Distributional Effects those rules are durable. This example is a microcosm of the As George Bernard Shaw once observed, A simple example will illustrate the massive windfall gains and losses that will " A government which robs Peter to pay wisdom of a conservative approach to tax develop in the market as every asset under­ Paul can always depend on the support of changes. Municipal bonds-interest on goes revaluation in light of a radically dif­ Paul.'" In the long run, it seems clear that which is exempt from federal income ferent tax regime. Perhaps the area of the wealthy would do very well under a taxes-generally have rates of return that greatest concern in this regard to most tax­ consumption tax regime, and especially so are about 20 to 30 percent below the rates payers is the effect of tax changes on the under a flat tax; proponents of such a tax of return available on taxable corporate price of owner-occupied housing. can presumably count on the support of bonds of comparable risk. The market Estimates of the loss in value of such hous­ this group. One countervailing effect deems this discount an appropriate price ing that would be occasioned by enact­ should be noted: consumption taxes are to pay for the tax exemption. (In fact, the ment of a flat tax vary between 15 percent likely to be at least partially passed on to discount is itself a form of tax payment, and 40 percent--or more, in some markets. consumers in the form of higher gross since it is received by a local governmen­ The magnitudes-and in some cases prices for everything touched by the con­ tal unit as an interest subsidy.) What if the even the direction--of the changes in the sumption tax. This general increase in tax exemption suddenly vanishes, as it value of assets following fundamental tax price levels-which might be as much as essentially would under a flat tax that system changes are highly uncertain. But 20 percent-will have the effect of lower­ made all interest payments excludable? a few predictions can be made: 1) Those ing the purchasing power, and hence the who seem likely to be losers in the asset

FACULTY FORUM DU K E LAW MAGAZ I NE • 43 value, of all fixed-rate assets. This is like­ Progressivity of the rich, but its operation is roughly opposite ly to be particularly troublesome with Present Income Tax what is popularly supposed: it operates respect to elderly taxpayers, whose assets Of course, many taxpayers do not believe primarily to control the wealthy's ten­ generally represent after-tax investments, that the current income tax is really pro­ dency toward tax-avoidance excess. It who would nevertheless face, under a con­ gressive at all. However, as the table consists, for example, of several hundred sumption tax regime, an additional tax as shows, the federal income tax is notice­ pages of regulations regarding the alter­ they spend down those assets on support ably progressive, with average rates native minimum tax, a vehicle designed during retirement. marching up from less than 5 percent on exclusively to ensnare high-income tax­ My guess, however, is that much of low-income groups, to more than 25 per­ payers who run up large "tax prefer­ this one-time tax on wealth will be cent for taxpayers with incomes above ences." It consists of the complex web of relieved by transition rules of the sort dis­ $200,000. rules referred to as the "time value of cussed in the preceding section. That will leave us with the effects of a system that is centered around a consumption tax, with some relief thrown in at the bottom end in the form of the exemption of the INCOME PCT. OF ALL PCT. OF ALL ADJ. PCT.OFALL AYG.INCOME first $25,000 or so of income. This is like­ GROUP TAXPAYERS GROSS INCOME INCOME TAX TAX RATE ly to produce a revenue profile that < $20K 48.9% 12.8% 4.6% 4.7% appears modestly progressive when $20-50K 33.8% 34.5% 25.8% 9.8% households at the lowest income levels $50-100K 13.9% 29.0% 29.4% 13.3% are compared to households having mod­ $100-200K 2.5% 10.2% 14.2% 18.3% erate incomes; above those levels, the rev­ > $200K .9% 13.5% 26.0% 25.3% enue profile will likely be flat at best, and may well be regressive. The regressivity in the upper half or so Those inclined to disbelieve that the money" rules, which exist exclusively to of the individual part of the flat tax stems graduated rate schedules produce a tax prevent taxpayers with large amounts of from the fact that a flat tax rate would be that is progressive in practice may be dis­ capital income from engaging in income assessed primarily against wage and inclined to believe in this table as well. deferral, or conversion of ordinary income salary income, which is a component of They might point out, for example, that into capital gain. total income whose proportion dimin­ adjusted gross income does not include Curtailing excessive tax-avoidance ishes as income rises. In 1992, for exam­ much of the true income of the wealthy, behavior is difficult, and certainly not ple, more than 80 percent of the income and that the denominator of the average comprehensively accomplished by the of taxpayers with adjusted gross incomes rate fraction is therefore understated in current code. Nevertheless, it is effective less than $200,000 was wage and salary the upper bracket. On the other hand, the enough that the overall pattern of the income, while less than 50 percent of the implicit tax (in the form of foregone inter­ income tax is one of moderate progres­ income of taxpayers above that level was est) incurred by investors in tax-exempt sivity, through a broad range of incomes. from wage and salary sources.' bonds is not included in the numerator It is possible that some of the regres­ either. I believe (but cannot prove) that Why a Progressive Tax? sivity inhering in these distributional when appropriate adjustment is made for Throughout this article, I have addressed facts would be offset by the tax burden of both the tax savings and the foregone the issues involved in selecting an appro­ the business side of the flat tax; however, income of tax-motivated investments, priate federal tax system at least partly in the incidence of that part of the tax is very the table would not look very different. terms of whether or not proposed tax sys­ difficult to project. Much of the business For the most part, our tax system-at tems preserve the progressivity of the cur­ tax may well be borne by consumers least since the very important reforms in rent income tax. It is certainly fair to ask rather than by owners of businesses. the 1986 Tax Reform Act-does very well why that is important. There is a short Overall, it seems fairly likely that the flat at taxing income from labor, and fairly answer to that and a long one. tax would turn out to be regressive in the well, though less comprehensively, at tax­ The long one is too long for this arti­ middle-to-upper ranges of the income dis­ ing income from capital. cle;'2 fortunately, the short one is suffi­ tribution, and would in any event be sig­ One of the reasons is that there really cient. It is premised on the belief that the nificantly less progressive than the is a "secret"-or at least a little-known overall revenue profile of governments at 1O current income tax. and poorly understood-tax code for the all levels in this country, as a minimal con-

44 • DUKE LAW MAGAZINE SPRING 96 dition of fairness, ought not be regressive. About 20 percent of state and local taxes applies only to the first $62,700 of wages. Because that overall revenue profile­ are in the form of individual income taxes; The corporate income tax, which pro­ except for the federal income tax-consists but these are, with a few notable excep­ duced about $151 billion of revenue in mostly of taxes that are regressive, it tions, not structured to be very progressive. 1995, may be one element besides the requires the addition of a significantly pro­ They either run through a very narrow individual income tax that tends to be gressive element to reach a balance that is range of rates, or reach the top rate very somewhat progressive. The accepted roughly proportional overall. quickly, or both. State and local govern­ view now appears to be that this tax is for The largest state and local revenue ments also generate revenue by operating the most part a tax on capital, and hence sources are sales taxes, which accounted monopolies of public utilities, lotteries, borne by those who own it. But it seems for about 35 percent of the $556 billion in liquor distribution, and transit systems­ doubtful that this is enough to offset the state and local tax revenues in 1992, and which tend to be regressive for the same regressivity of the other taxes noted. property taxes, which accounted for reasons that sales taxes generally are. In the 19705, the conventional wisdom another 32 percent." Because the propor­ The federal revenue picture is no more was that the revenue proille was U-shaped, tion of a household's budget that is devot­ encouraging. Payroll taxes generate al­ with relatively high effective tax rates at ed to items burdened by such taxes most as much revenue as the individual the very bottom of the income distribution declines with income, sales taxes tend to income tax: about $484 billion, compared (mostly due to benefit phase-outs of non­ be regressive, and property taxes might be with $588 billion in 1995. 15 The largest tax programs), and slightly higher effective as well." part of that is the FICA tax, most of which tax rates at the very top end, due to the then high marginal income tax rates of the individual income tax. The effective tax Gibbs, "Knock 'em Flat," Time, 1/29/96, at 22,24. The candidate, of course, was Steve Forbes. rates were thought to be lower, and rela­ 2 A progressive systcln is one in which tax burdens as a proportion of income rise as income rises. A regres­ sive system is one in which they decline as income rises. A proportional system taxes all incomes at the same tively flat, through the middle 80 percent rate. A tax system can be continuously progressive or regressive, or it can be progressive within some ranges, and or so of the income distribution. regressive within others. However, the flood of tax legislation 3 See V. Tanzi, Taxation in an Integrating World, Washington, D.C., The Brookings Institution, 1995, pp. 50·51. 4 Of course, taxpayers engaged in a business also could deduct investments in machinery and equipment. in the 1980s surely destabilized that view. The principal category of investment that would not be deductible would be collectibles-paintings, carpets, A new consensus on the revenue proille antiques, and the like. This bill also would add a VAT to the tax system, as a substitute for the current cor­ hasn't yet emerged, but that profile has parate income tax. 5 In some sense, it is unfairto criticize the USA tax for its complex transition rules. As will be discussed below, been flattened at the upper end with rate all consumption taxes face the same problem of what to do about taxing consumption financed by previously cuts, and flattened at the lower end by an taxed savings. The USA tax is the only plan that really takes this problem seriously, and therefore the only one expanded earned income tax credit, so the that makes clear what a difficult problem this is. 6 Of course, it was also followed by an expensive war, which had its own stimulative effects. It is also worth overall revenue structure is by now prob­ noting that the top-end rate cuts in the 1964 Act were from a breath-taking 91 percent to a mere 70 percent. ably close to being flat throughout the 7 The federal budget deficit, which had averaged less than $50 billion per year over the decade preceding the income distribution. If we were at this 1981 Act, averaged $190 billion per year in the decade following. Author calculations based on The Statistical Abstract of the United States, 1995, Table 51 7. point to replace the moderately progres­ 8 G. Shaw, Everybody's Political What's Whatl London: Constable and Co., 1944. p. 256. sive federal income tax with something 9 Author calculations based on data in the 1992 Individual Tax Returns report from the IRS Statistics of that was much less progressive, or even Income series. 10 A preliminary study on the distributional effects of several structural tax options by Gale, Houser, and Scholz regressive, we would, in all probability, indicated that the Armey flat tax plan would reduce the tax burden on taxpayers with incomes above $200,000 produce a revenue proille in which over­ by 42 percent if we assume that the business part of the tax is borne by consumers, and by 26 percent if we assume all effective tax burdens as a percentage that the business part is borne in equal measure by capital and labor. II This table is prepared from author calculations based on the 1992 individual report from the IRS Statistics of income decline as income rises. In an of In com e series.il992 is the most recent year for which final data are available; the progressivity of the current era of increasing pre-tax income inequal­ income tax is actually somewhat greater than is shown in this table, due to the addition in 1993 of the 36 per­ ity, we don't need "reform" like this.'· • cent and 39.6 percent btackets.1 12 It has to do with the fact that income is the best measure of ability to pay tax, and with the fact that the declin­ ing marginal utility of additional sums of after-tax income suggest that overall sacrifice can be minimized by some progression in the tax structure. These ideas are quite controversial, but I believe they are still defensible. 13 Author calculations based on The Statistical Abstract of the United States, 1995, table 481. 14 Local property taxes are somewhat problematic. The general assessment within the public finance commu­ nity is that if such taxes are geographically uniform, they are a tax on capital, and hence a progressive element in the tax system. To the extent that they vary, they can be passcd on to renters, and this tends to be regressive. 15 Table 518, Statistical Abstract of the United States, 1995. 16 Indeed, some commentators who have studied our increasing income inequality have specifically suggested increasing the progressivity of the tax system as a means of reducing the effects of changing income distribu­ tions. See Frank and Cook, The Winner-Take-All Society, 1995.

FACULTY FOR U M DUKE L AW MAGA Z INE • 45 Faculty News

Before the Supreme Court persuade the Supreme Court that judicial When Everett appeared in December to review is necessary both to protect the argue Shaw v. Hunt, he "urged the court In the spring of 1995, the Supreme Court defendant'S interests and to ensure that to strike down a 'monstrosity' of racial ger­ appointed professor Sara Su n Beale to rep­ the government does not exceed the rymandering that cast aside such tradi­ resent an indigent inmate who sought to statutory authority for forfeiture. In the tional redistricting principles as contiguity overturn the agreement in which he had absence of judicial review, she explained, and compactness," according to Knight­ pled guilty and forfeited all of his proper­ "a wealthy defendant could buy a short­ Ridder News Service. He argued that cre­ ty. The case was something of a home- er sentence by agreeing to forfeit proper­ ating separate but equal districts for ty the government is not entitled to take, minorities simply divides people further, and an overzealous prosecutor could force according to States News Service, which a defendant to agree to such a forfeiture quoted Everett as saying, "The North in order to avoid a much longer prison Carolina redistricting is a racial classifica­ sentence." Libretti, for example, was tion and therefore unconstitutional." faced with a mandatory SO-year sentence On June 13, 1996, the Court ruled in a if he did not agree to forfei t all of his prop­ 5-4 decision that the use of race in leg­ erty, including assets that were not drug islative districting in North Carolina and tainted, such as his employer funded Texas was unconstitutional. retirement plan and a bank account his parents started for him in elementary school. Medal of Freedom In December 1995, professor Robinson to Franklin O. Everett returned to the Supreme Court to argue a case he first presented in 1993. President Bill Clinton presented the In the 1993 appearance, Everett argued Presidential Medal of Freedom, the Shaw v. Reno concerning the practice of nation's highest civilian honor, to John redistricting in compliance with the Hope Franklin. Franklin, professor emeri­ coming for Beale, whose last job before Voting Rights Act. Everett, representing tus of legal history, was one among 12 joining the Duke Law School faculty was himself and four other Durham voters, honorees to receive the honor during a representing the United States in the including professor Melvin Shimm, White House ceremony in September. Supreme Court, where she has argued six argued that the state General Assembly Clinton called him the "true face of cases. Beale used the case as an opportu­ violated constitutional principles when it American heroism," according to States nity to expose Duke students to the real created districts that would "guarantee News Service. "John Hope Franklin, son world of appellate litigation, using stu­ the election to Congress of persons of a of the South, has always been a moral dent research assistants to help prepare specific race." compass for America, pointing us in the the briefs, having students sit on a panel way of the truth." In other honors, the that conducted a practice argument, and Duke University Library has established arranging for 30 students in her classes to the John Hope Franklin Research Center attend the argument. for African and African American The principal question in Beale's case, Documentation, which will collect and Libretti v. United States, was whether preserve research critical to scholarly the trial judge had an obligation to deter­ research and teaching in all areas related mine if there was a factual basis for crim­ to African and African American studies. inal forfeiture pursuant to a guilty plea. The lower court ruled that the Federal Rules do not require such an inquiry when the defendant pleads guilty and agrees to the forfeiture. Beale sought to

46 • DUKE LAW MAGAZINE SPRING 96 Faculty News

New Faces at Duke Law Honors for Cox

Two faculty members joined the Law Professor James D. Cox received the School during the 1995-96 academic year. Distinguished Teacher Award for 1994-95 Assistant professor Trina Jones worked from the Duke Bar Association (DBA). in general litigation as an associate for The DBA has presented the Distinguished Wilmer, Cutler & Pickering in Wash­ Teaching Award annually since 1985 to ington, D.C. from 1991-95. Her primary recognize outstanding classroom contri­ interests are in race and gender issues, butions from a member of the Law School and she teaches civil procedure and faculty. Cox is a previous winner of this employment discrimination at Duke. She high honor. received her JD in 1991 from the Uni­ Cox's book Corporations has received versi ty of Michigan, where she served as the award for best new legal book of articles editor for the Michigan Law 1995 in the Association of American Review, and a BA from Cornell Uni­ Publishers' annual awards competition. versity in 1988. His co-authors are Thomas Lee Hazen and the late P. Hodge O'Neal, a former Michael Bradley is the P.M . Kirby Professor Duke Law School professor and dean. The ment regulation of the securities market, of Investment Banking, with appoint­ AAP presents the awards to recognize insider trading, fiduciary duties of corpo­ ments in the Law School and the Fuqua rate managers, corporate governance and School of Business. His teaching and corporate bankruptcy. His work has been research interests lie at the intersection cited in textbooks, professional journals, of corporate finance and corporate law. He and in the decisions of numerous state has published papers on corporate capital and federal courts, including the U.S . structure, mergers and acquisitions, Supreme Court. Bradley earned his Ph.D. takeover defenses and tactics, govern- from the University of Chicago, an MBA from Syracuse University and an AB from the University of Idaho. Bradley came to Duke from the University of Michigan where he had appointments at the law and business schools; he also served on the faculties of the Universities of Chicago and Rochester.

excellence and innovation in profession­ al, scholarly, and reference publishing. Corporations is the first comprehensive treatment of corporate law in more than 30 years. Cox and his co-authors cover contemporary issues of corporate law, including corporate governance and direc­ tors' fidUCiary duties, mergers and acqui­ sitions, shareholder litigation, takeovers and defensive maneuvers, and the full range of share transactions. Little, Brown and Company published the book.

FACULTY FORUM DUK E L AW MAGAZINE • 47 Faculty News

DeMott Appointed academic affairs. During her term she as ALI Reporter focused on the faculty community and the curriculum, while continuing to serve Professor Deborah DeMott was appointed the School as a productive scholar and the reporter for the American Law Insti­ teacher. "Her leadership and service have tute's new (third) Restatement of Agency. left this a better law school," said Dean The project also will have a group of Pamela Gann. judges, practicing lawyers, and academics Associate professor Amy l. Chua has designated to serve as its advisers. This is received an International Affairs Fellow­ the third time the ALI has restated the ship from the Council on Foreign law of Agency; the previous projects were Relations. Chua will spend 1997-98 in a in 1958 and 1933. DeMott joins her col­ policy-making setting, such as the league, professor Katharine Bartlett, as an International Monetary Fund or the U.S. ALI reporter. Bartlett was appointed as a Department of the Treasury, pursuing her reporter on the ALI's Principles of the research project. Chua is studying the Law of Family Dissolution in 1994. Her interrelationship among the forces of eth­ primary area of responsibility on the pro­ nonationalism, marketization, and democ­ ject is child custody. ratization in the Central Asian republics Protecting Health of the former Soviet Union. Chua is the and the Environment Professional News third Duke Law School faculty member to receive this honor: professor Donald L. Associate professor Jonathan B. Wiener co­ Professor Sara Sun Beale was asked to Horowitz, and Dean Pamela B. Gann edited and co-authored Risk versus Risk: serve on the criminal law advisory board were International Affairs Fellows in, Tradeoffs in Protecting Health and the of the lournal of Criminal Law etJ Crimi­ respectively, 1971-72 and 1983-84. Environment (Harvard University Press, nology. She will work with colleagues Dean Gann appoin ted professor 1995). Wiener and John D. Graham of the from other top law schools around the Thomas Rowe to serve as senior associate Harvard School of Public Health use case country on the newly formed board. dean for academic affairs for the 1995-96 studies to demonstrate how efforts to Professor Katharine Bartlett completed academic year. reduce risks to health and the environment her service as senior associate dean for can actually make things worse by creat­ ing new risks. They illustrate the com­ plexities of risk trade-offs, ranging from personal medical choices to control of toxic Assessing the substances and prevention of global crises. N.C. Justice System Risk versus Risk critiques counter-produc­ tive risk-reduction efforts, but it also offers Three Duke Law faculty members are part a new method of analysis designed to illu­ of a 27-member commission designed to minate and help resolve risk tradeoffs. The assess the future of the justice system in book concludes by suggesting constructive North Carolina. Professors Thomas Metzloff reforms in government institutions, med­ and Robert Mosteller, and Theresa Newman , ical care, and risk decision making to help senior lecturer/head of the research and solve the conundrum of risk tradeoffs. writing program, are serving on the com­ Wiener received special recognition mission, along with legal professionals, for his essay, "Law and the New Ecology: business and government leaders, and Evolution, Categories and Consequences," politicians. The commission will take the published in Ecology Law Quarterly in first comprehensive look at the state court 1995. A national expert panel chose the system since the 1950s. Newman and Mosteller will serve as reporters for the commission's civil justice and criminal justice committees, respectively.

48 • DUKE LAW MAGAZINE SPRING 96 essay as one of the best 13 articles on with the meaning of "property," and par­ environmental law published in 1995, ticularly its application in the context of selecting it from more than 400 entries. "takings" of property under the Fifth and The next annual Land Use and 14th Amendments. Environmental Law Review will reprint Underkuffler plans to begin compara­ the selected articles. tive work in the field of corruption. This project includes the development of a conceptual framework for looking at the area, and the application of the frame­ work to the problem of corruption in the Faculty Granted Tenure context of our legal and judicial systems. She will apply her work across three Laura S. Underkuffler was granted tenure countries: the United States, Chile, and and was promoted to the rank of profes­ Venezuela. This work will move her sor of law on July 1, 1996. Her scholarship directly into the field of comparative is concentrated in two fields: religion and law, which is an under-worked field. law, and the constitutional protection of Underkuffler regularly teaches the first­ property. Both fields include the role of year required course in property, an elec­ of law and philosophy. For Stone, this the state in limiting fundamental indi­ tive in advanced property theory, and requires a kind of philosophical work in vidual freedoms, and both involve the the course in federal courts. which the law becomes a genuine source exploration of basic areas of jurispruden­ of philosophical creativity, which means tial and constitutional inquiry. Both also Martin J. Stone was granted tenure and was that the law would interrogate philoso­ involve the presence (or absence) of promoted to the rank of professor of law phy and not simply be submitted to it. He explicit value choice in public decision at July 1, 1996. Stone, who was awarded has an abiding interest in the relation making. Her more recent work has dealt his PhD in philosophy from Harvard this between law and the larger intellectual June, holds a secondary appointment in culture, including literature and film. Duke's Department of Philosophy. His Stone regularly teaches the first-year re­ published scholarship has engaged in con­ quired course in torts, and he also teach­ temporary debates concerning the ratio­ es upper-class seminars in legal theory nality of legal and political institutions. and in jurisprudence. Because of his sec­ His earliest published essay, focusing on ondary appointment in the philosophy the work of Roberto Under, examined the department and his more general inter­ "politicS of modernism"-a politics ests in the humanities, he will offer a appropriate to the historical experience graduate seminar in the School of Arts that Nietzsche calls "nihilism" and iden­ and Sciences. tifies as the re-grounding of all values in human will. His second essay took up issues in interpretive theory that are cur­ rently central not only in legal studies but in philosophy and literary studies, too. His most recent work concerns the sub­ stantive justification of a specific area of legal doctrine, tort law, and it attempts to illuminate certain classical theses of legal philosophy by bringing them to bear on the problems in this area of law. The major thrust of his work is to forge pro­ ductive alliances between the disciplines

FACULTY FORUM DUKE L AW MAGAZINE • 49 Alumnae Legislators

uke Law School graduates Ember schools are autonomous public schools DReichgott Junge '77 and Susan funded by state dollars that are subject to a Bysiewicz '86 are applying their talents to charter, or contract, with the school district their state legislatures. to live up to certain performance standards. For Ember Reichgott Junge '77, public Twenty states have followed the charter service and private practice offer a perfect school legislation originated in Minnesota. complement. The fourth-term Minnesota As chair of the Senate Sub-Committee state senator, who plans to run again in on Ethical Conduct, Reichgott Junge 1996, finds "it's a wonderful balance to be faces a particularly challenging situation. able to spend time dealing with the issues Several state senators have been convicted that are so real to Minnesotans, and at the of misdemeanor criminal violations, and same time to continue to grow profession­ another has been charged with felony vio­ ally as a lawyer and to confront challenges lations. "We have opened hearings on the in that realm." Because the Minnesota leg­ ethics issues that have come before our islature is a part-time or "citizen" legislature, committee, so this has been a very chal­ Reichgott Junge has been able to balance a lenging time. And it's one area where I have career as a lawyer-legislator. When not had to use every possible skill that I learned attending to her legislative duties, she is one in law school and in my practice." of eight lawyers in The General Counsel, Reichgott Junge first became interested Ltd ., a firm that serves as in-house counsel in politics when, as a senior at St. Olaf to major corporations in the Twin Cities College, she went to Washington as an area on a time-shared or contract basis. Reichgott Junge has represented five sub­ urban Minneapolis communities since she was first elected to the Minnesota State Senate in 1982. In 1994, she was the first woman elected to the state senate leader­ ship, when she assumed the role of Senate Assistant Majority Leader, the second-rank­ ing leadership post in the Minnesota Senate. She also was the first woman to serve on the Judiciary Committee when she joined in I 982,and the first woman to chair that com­ mittee in her state, as she did from 1993-94. Since then, the membership of the commit­ tee has grown to 50 percent women."This is extremely important;' she explains,"because Ember Reichgott Junge '77 we deal with many issues of concern to families, such as family law and adoption." intern with then-Senator Walter Mondale. Judiciary is one of three main areas "I became very interested in some of the where Reichgott Junge has focused her issues he was working on, including the work over the years. She also has worked Select Committee on Children and Families on tax policy, chairing several tax sub-com­ and the issue of domestic violence." mittees and working to reform the state's Although she originally planned to work tax system. Her third area of interest-the with the federal government, during her one closest to her heart-is education and studies at Duke Law School she became education funding. She was the chief spon­ more interested in returning to Minnesota sor of the first open enrollment legislation and becoming involved in politics there. in the country, as well as the first charter Her experience at Duke Law School has school legislation in the country. Charter been helpful in her legislative duties as well

50 • DUKE LAW MAGAZINE SPRING 96 Profiles """WIIUWIJ

as her legal career. "A number of the issues her book on Ella Grasso, the first pointments to state we talked about in criminal law and consti­ woman governor elected in her boards and commis­ tutional law at Duke have become impor­ own right. She transferred to sions to consider tant in the work that I do in the legislature, Duke Law School for her second the gender and eth­ and I had a number of opportunities to use and third years. "I knew Duke nic diversity in Con­ my business law background as weil.l chief­ was a beautiful school with a fine necticut in making authored legislation that created limited lia­ reputation, and I wanted to go those appointments, bility companies and partnerships,authored to law school in a different part and has focused on a number of changes to our business cor­ of the country. Duke Law School improving day care poration laws, and authored legislation cre­ was important in that it taught health and safety ating living wills, durable powers of attorney me to think critically. It was a regulations. and related initiatives ." good place to learn and to meet Bysiewicz and Eighteen of Minnesota's 67 state sena­ other people who were inter­ another woman law­ tors are women, as are approximately 25 ested in public affairs." yer were the first percent of the entire state legislature. "The After graduating from Duke, women to serve on cl imate for women has changed," Reichgott Bysiewicz joined a firm in New Susan 8ysiewicz '86 the Judiciary Com- Junge notes. "When I began serving 14 years York City, then moved back to mittee in her state. ago, women were definitely well-respected Connecticut and practiced law in Hartford. Bysiewicz agrees that it is particularly and effective in getting their bills passed, but She decided to help Dick Blumenthal run important for women to serve on th is there wasn't that critical mass that helped for Connecticut attorney general and committee, since issues related to civil bring issues to the forefront. Now that we served as his campaign manager for his first rights, criminal justice, confirmation of have more women, we are focusing more on term election. "That's when the political judges, issues of gender and access to health crime prevention, education, health care, and bug bit," she remembers. "Dick had served care, and laws related to reproductive the issues that affect middle class families . in the state legislature before he ran for choice are decided there. Women have been able to bring some life attorney general, so when the opportunity Both women have husbands who under­ experience to the legislature that has arose to run for state representative, I was stand the demands of legal careers. In 1993 changed the focus over the years ." familiar with the office, and I decided it Reichgott Junge married Mike Junge, an One of those women who joins would be interesting." She was elected in elected county attorney (district attorney) Reichgott Junge in bringing life experience 1992, and reelected in 1994. for a rural community in Minnesota. to the state legislatures of our nation is Like Minnesota, Connecticut also has a "Because we are both elected, we are not Representative Susan Bysiewicz '86, who part-time legislature, although Bysiewicz allowed to live together by statute!" serves in the Connecticut General says that in practice, it is a full-time job, par­ Reichgott Junge laughs, explaining that Assembly. The youngest woman serving ticularly with her responsibilities as a co­ the two maintain separate homes and com­ in the Connecticut legislature-which is chair of one of the major committees, in mute back and forth. Bysiewicz met her approximately 25 percent women-and addition to her role in representing her husband, David Donaldson, JD/MBA '87 at the only one with three young children, district. In spite of the time commitment, Duke Law School.They have three children Bysiewicz feels that she represents the she also maintains her own private practice under age five . "I had our first daughter five young, working woman with children. "It's in consumer law. months before I first ran for the legislature, hard enough for women who work and have As co-chair of the Government a daughter during my first term,and my son a family-it's doubly hard to be in the legis­ Administration and Elections Committee, in the second term!" exclaims Bysiewicz. lature too," she explains. Bysiewicz has worked toward creating a sin­ ''I'm lucky to have a very supportive hus­ Growing up with a mother who was one gle New England Presidential Primary on band, otherwise I couldn't do what I do." of the first female graduates of the March 5. Setting the presidential primaries Both women are pleased with their University of Connecticut Law School, a in Connecticut, Massachusetts, Rhode career choice. Reichgott Junge's words are prominent lawye r, law professor and an Island, Maine, andVermont on the same date, echoed by Bysiewicz. "Public service is one appointed member of a number of state she says, will give the Northeastern states of the most rewarding occupations you commissions, Bysiewicz was attracted to more clout in the presidential primary can have. It is an honor and a privilege, and public service. After earning her under­ process. She also has worked on gender it has added a great richness to my life ." graduate degree at Yale , Bysiewicz began balance law, which requires the Governor L AURA ERTEL her legal studies at UConn while finishing and other legislative leaders who make ap-

ALUMNI NEW S DUKE LAW MAGAZINE • 5 I '.""m"~lmj Profiles

White House Fellow for the company's nuclear licensing and the chance to be there." She has been work­ waste disposal matters. Previously she ing in areas involving the development of or the second time in this decade, a worked as a corporate associate at school-business-community partnerships, Fyoung Duke Law School alumna is serv­ Simpson,Thacher & Bartlett, and as a math­ the role of education in community devel­ ing as a White House Fellow. Appointed ematics instructor for Upward Bound opment, teen pregnancy prevention, charter by President Clinton,Tanya Oubre is spend­ preparing disadvantaged students for col­ schools, and access to post-secondary ing the 1995-96 year as a Fellow in Wash­ lege.Since 1990,she has taught music,dance, education. ington , D.C. She follows in the footsteps of drama, and Sunday School to children at The program was of interest to her Kimberly Till 'SO who began the decade as an inner-city ministry and has volunteered "because of the exposure it provided to a Fellow for 1990-91 . senior-level leadership and policy-making, A non-partisan award, the White House and its emphasis on having Fellows use the Fellowship program places exceptionally tal­ experience to benefit their communities." ented men and women in full-time positions At the end of the Fellowship, Oubre will fo r a year at the White House and Cabinet­ "return better prepared to contribute to my level agencies. The Fellows write speeches, community and to my profession with an chair meetings, draft legislation, and coordi­ enhanced understanding of public policy." nate policy. In addition, they attend an edu­ One of the most exciting parts of the cational program of regular meetings with year for Oubre and her husband, Derek, was senior government officials, top business the birth of a daughter, Lauren Elise, on executives, journalists, and other leaders. November 12, I 995-nicely timed so that Says Oubre, "This wonderful education it corresponded to the government fur­ program has allowed us to have many engag­ lough. Oubre notes,"Lauren has had a num­ ing and timely discussions with a variety of ber of interesting experiences, including fascinating people, including President seeing the White House Christmas decora­ Clinton, former President Bush , Ambassa­ tions and being introduced by Secretary dor Richard Holbrooke,Attorney General Riley, that I will enjoy telling her about in Janet Reno, Carl Sagan, Vernon Jordan, Tom the years to come." • Brokaw, and Justice Stephen Breyer.We will be traveling to Vietnam, Cambodia, Hong as a tutor and mentor 'for at-risk youth. Kong, and Singapore." While in Law School, she was director of Educator, Arbitrator The program's alumni include HUD the Volunteer Income Tax Assistance pro­ Believes in Community Secretary Henry Cisneros, CNN president gram and secretary of the Duke Bar n the fall of 1931 , a very young and deter­ Tom Johnson,Tenneco CEO Dana Mead,and Association,as well as serving on the Deans' mined Paul Sanders hitchhiked from Texas former chairman of the Joint Chiefs of Staff Advisory Council and the Moot Court I to North Carolina to enter Duke Law Colin Powell .Till, who spent her year work­ Board and working with the Black Law School. "A Duke sticker on the small bag I ing on a variety of international trade pro­ Students Association. carried and my thumb enabled me to aver­ jects with the Secretary of Agriculture, Oubre, who is spending the year as spe­ age over 300 miles a day for four days over now works as director of business planning cial assistant to Secretary of Education roads at times unpaved ," Sanders said. "I for EuroDisney. Richard Riley, has had the opportunity to arrived in Durham early on the fifth day in Oubre is an attorney specializing in ener­ conduct briefings, review legislation and time to check in at the Law School and be gy regulation at the Southern California other documents, and observe the process settled in a dormitory room. My out-of­ Edison Company, where she is responsible of governing at the highest levels. She finds, pocket travel expenses were around $20." "One highlight of my job has been to pre­ Sanders' spirit of adventure was matched pare for and attend meetings between by the activity on the "new" West Campus: Secretary Riley and various members of the Cabinet. Whenever I am in the West Wing of the White House, I am struck by its magnificent history and am grateful to have

5 2 • DUKE LAW MAGAZINE SPRING 96 Profiles ' · "'nml~ltilj

construction of the Duke Chapel, the plant­ War Labor Board and then to serve in the Sanders' motivation to make these gifts is ing of oak trees on the West Campus, and U.S. Navy as an industrial relations special­ clear:"1want to help keep a publication like the beginning of Wallace Wade's legendary ist. He engaged in private practice in Atlanta this doing its job!" career as the Duke football coach. before returning to the academy in 1948 to Sanders' involvement with the publica­ As it is today, the environment at the Law teach at Vanderbilt. He was accorded the tion dates back to his student days. It was School was energetic and ambitions were rank of professor emeritus in 1974 and first published during his second year at high. Under the leadership of Dean Justin taught until the late I 980s. Duke and he served as its associate editor Miller and then-professor H. Claude Horack, Reflecting on his career for Who's Who, from 1937-46. "Its editorial concept and its the School forged new paths in legal study Sanders said,"My primary interests as a law approach to a better understanding of a sig­ and trained future leaders for the bench, the teacher and arbitrator have centered in sys­ nificant law-related problem attracted me bar, and the academy. The faculty-mostly tematic study of the processes of dispute from the very beginning," recalled Sanders. young, brilliant, and newly recruited-num­ settlement and conflict resolution, particu­ "On returning to Duke in 1936 to teach, bered 12 and included "giants" David larly in the labor relations field. This reflects my duties included assisting David Cavers Cavers, Lon Fuller, and John Bradway. a conviction that building'community' is the with Law & Contemporary Problems. This later Professors Douglas Maggs, William Roalfe, essence of civilization and that there needs included major responsibility for developing, and Gordon Dean accompanied Dean Miller to be individual and group commitment organizing, and editing a number of issues, to Duke the year before.The student-facul­ to understand and utilize the art of peace­ including the "Labor Dispute Settlement" ty ratio was 8: I, and the Law School's loca­ ful accommodation. Social conflict is as issue, published in the spring of 1947. The tion in a handsome, new Gothic building inevitable as change. All too frequently we entire issue provided the springboard for the on the main quadrangle enhanced the pio­ show that we have not learned to distin­ Vanderbilt Seminar on "Conflict Resolution neering mood. guish, and to maintain the proper balance and Legal Process" initiated in 1972. In my It was into this milieu that Paul Sanders between the productive and counterpro­ opinion, most of the basic ideas in the pre­ immersed himself. Like many of his class­ ductive aspects of such conflict." sent alternative dispute resolution develop­ mates, Sanders was attracted to Duke by the Sanders established four Paul H. Sanders ment were subject to discussion and analysis generous scholarship monies available for Charitable Gift Annuities between 1990 and in that 1947 symposium." its gifted student body. And like Sanders, 1995. Upon the termination of the annuities, True to the mission set forth by the fac­ many traveled long distances to attend Duke will add the funds to the Law & ulty in the I 930s, the Law School continues Duke. "Although the total School enroll­ Contemporary Problems Endowment Fund. to open the minds of students to the broad­ ment was very small by today's standards, er implications of law. Duke encourages students came from virtually every section joint studies that link law to other insights of the country," said Sanders. "My room­ into the human condition. Evidence of this mate was a Phi Beta Kappa graduate of commitment is that the faculty has more Dartmouth, whose home was in New joint appointments than any other law fac­ Hampshire." ulty and more Duke law students pursue Sanders-lawyer, educator and arbitra­ joint degrees than at any other law school­ tor-has embodied the School's vision of regardless of size in both cases. leadership at the bar and in the academy. And much like the now majestic oaks He started out in private practice in Texas, that were planted on the Duke quad during and then spent two years at the American Sanders' first year, the Law School has Bar Association's headquarters in Chicago. matured, enjoying a position of consequence He returned to Duke to teach in 1936, and in the profession." 'Tis education forms the earned the rank of professor 10 years later. common mind, just as the twig is bent, the With the onset of World War II, Sanders tree's inclined ." • took leave, first to work with the National

ALUMNI NEWS DUKE LAW MAGAZINE • S3 '.""m"~'¥ij Professional News

Richard W. Kiefer retired as senior partner James S. Byrd , after serving 13 years on the John A. Carnahan finished 12 years as a of Hooper, Kiefer & Cornell in Baltimore federal bench and six years on the Florida member of the ABA House of Delegates as of June 30, 1995. Circuit Court, was appointed as regional and is finishing a 7-year term as chairman administrator of the Florida Parole of the Ohio Fellows of the American Bar Charles S. Rhyne has published his autobi­ Commission with jurisdiction over nine Foundation. He is active in private prac­ ography. Representing states, cities and central Florida counties. tice as a partner with Arter & Hadden. counties in cases in federal and state courts throughout the United States, Roland R. Wilkins retired as associate direc­ Rhyne argued cases in the Supreme Court tor of development for the Duke Medical from 1939-84 including serving as lead Edward L. Williamson of Whiteville, N.C., Center in February. counsel in the "one man, one vote" case was one of five attorneys inducted into of Baker v. Carr, 369 U.S . 226 11962). the General Practice Hall of Fame at the Rhyne held offices in bar associations at N .C. Bar Association's annual meeting in Business North Carolina magazine fea­ the local, national, and world levels, June 1995. The Hall of Fame selection tured Russell M. Robinson , II in the cover including serving as president of the committee considers general practition­ story of its December 1995 issue. The American Bar Association. He worked to ers' ethical standards and history of legal article about liThe Brow" described him expand the rule of law as a credible competence as well as their standing in as having a "mind as sharp as raptor method of achieving world peace. The the community. Williamson, city attor­ talons II and as a "legal eagle that makes book sets out the accomplishments of his ney for Whiteville for 24 years, is now of many of the biggest deals fly. But his career in litigation and public service counsel to the firm Williamson & Walton greatest gift might be his talent for keep­ placing them in historical context. which includes his son and nephew. ing his law firm's feet on the ground." Robinson is a partner in the Charlotte firm, Robinson, Bradshaw & Hinson. Charles F. Blanchard, formerly of Blanchard, Abraham I. Gordon, a partner in Gordon Twiggs, Abrams & Strickland announces & Scalo of Bridgeport, was awarded the the formation of a new general trial prac­ Rotary Foundation's highest honor, Arnold H. Pollock has been serving as an tice firm, Blanchard, Jenkins & Miller of the Distinguished Service Award. The administrative law judge for the state of Raleigh. The firm emphasizes product lia­ Foundation, the humanitarian arm of Florida in Tallahassee since retiring from bility, wrongful death, personal injury, Rotary International, presents no more the USAF Judge Advocate General's aviation, and profesional negligence law. than 50 such awards worldwide annually, and only 12 were presented to Rotarians Department as a colonel. in the United States. In announcing the award, Hugh Archer, chairman of the E. D. Baumgartner is retired and living in Foundation's board of directors, said that Robinson O. Everett was named a vice pres­ Key West, Fla. Gordon's "efforts to promote the ideals of ident of the N.C. Bar Association during the Foundation have greatly contributed Hugh E. Re ams retired from the St. the 1995 annual meeting. He also is chair Petersburg office of Holland & Knight in to the success of its many international of the N.C. Continuing Legal Education 1995 after 45 years of law practice in the programs. You represent the best that Board. He is in private practice in area of trusts and estates. During his Rotary has to offer, the caring, the con­ Durham, on the faculty at Duke Law career, he served as president of the St. cern, the hope of a better life for those less School, and a senior judge of the U.S. Petersburg Bar Association, president of fortunate than ourselves. II Court of Military Appeals. the Pinellas Trial Lawyers Association, Perry Keziah, attorney in High Point, N.C., and president of Gulfcoast Legal Services. was appointed chairman of High Point He has been a member of the board Regional Hospital's board of trustees for Alexander Drapos, lawyer and active com­ of directors of the Florida Methodist 1995-96. Keziah has served on the hospi­ munity leader in Worcester, Mass., was Foundation and a member of the tal's board since 1991. elected to the board of trustees of the Conference Legal Advisory Council of the American Farm School of Thessaloniki, Florida Conference of the Methodist Charles E. Rushing retired as a senior Greece. The American Farm School is an Church. He served as attorney for the foreign service officer for the State agricultural training center and demon­ St. Petersburg District of the United Department in 1994 after serving 38 years stration farm, which has provided Methodist Church for more than 25 years. in 10 countries. advanced practical education for Greek stu-

54 • DUKE LAW MAGAZINE S P R I NG 96 I ProfeSSional N ews ""'I*IIHt4J

dents since 1904. Robert E. Young is retired from the John T. Berteau, who practices with the law Drapos practices Baltimore firm of Piper & Marbury after fum of Williams, Parker, Harrison, Dietz law with the 26 years, including 18 as a partner. & Getzen of Sarasota, was elected a fellow firm of Fletcher, of the American College of Trust and Tilton & Whipple, Estate Counsel. The College is an associ· where he special­ ation of lawyers who have been recog· E.D. Gaskins, Jr., Raleigh attorney, was izes in the areas nized as outstanding practitioners in the named to the Board of Governors of of commercial fields of estate and trust planning and the N.C. Bar Association at its annual and banking law administration, related taxation, business meeting in June 1995. Gaskins has and immigration. succession and insurance planning, chaired the N.C. Bar Association's employee benefits and fiduciary litigation. Public Information Committee and Lawyer Effectiveness and Quality of Life Norman Cooper was named head of Charles W. Petty, Jr. joined the Washington, Committee. Active with many profes­ the U.S. Department of Agriculture's D.C. office of Ross & Hardies as a part­ sional groups and projects serving the National Appeals Division. The Division, ner. He will continue to repesent domes­ county and city, he served on the Greater an independent USDA agency, is respon­ tic and foreign enterprises, individuals Raleigh Chamber of Commerce Board sible for administrative appeals of deci­ and financial insti tu tions in transactions and the Advisory Council to the Wake sions within certain program agencies of and regulatory matters. County School Board. the department and replaces separate administrative appeals staffs. Previously, William K. Holmes, a partner with the Frank T. Read is president and dean of Cooper served as assistant general coun­ Grand Rapids-based law firm, Warner South Texas College of Law in Houston. sel with the Department of Veterans Norcross & Judd, was elected to the Affairs, and as the senior legal officer for American Board of Trial Advocates. Over the commander-in-chief of the U.S. forces 4,000 defense and plaintiff civil trial in South Korea. Cooper retired as a Harry J. Haynsworth is president and dean lawyers are "by invitation only" mem­ colonel after serving for over 25 years in of William Mitchell College of Law in bers. Holmes practices in the areas of the U.S. Army's Criminal Law Division, Minneapolis. business and commercial litigation, chief of its Government Appellate including antitrust, securities, corporate David G. Warren was chosen as one of three Division, a military circuit judge, and control litigation, and mass tort litiga­ Americans to serve on an international associate professor of law at the U.S. tion. He is a fellow with the Michigan bioethics network panel established by Army Judge Advocate General's School in State Bar Foundation and the American the McGill University Centre for Charlottesville. Medicine, Ethics and Law. College of Trial Lawyers. Lanty L. Smith, Greensboro business exec­ utive and chair of the Law School's Board of Visitors, was named a trustee of the Paul R. Ervin , Jr. was elected executive Jerry J. McCoy opened an office in 1994 as a sole practitioner in Washington, D.C., Kathleen Price Bryan Family Fund. vice president of The Foundation for Smith, who is chairman of the board of Evangelism. He was in private practice specializing in charitable tax planning and nonprofit organizations. directors and chief executive officer of until 1984, when he became chief of Precision Fabrics Group, a manufacturer staff for U.S. Representative George of high-technology textile products, also Darden. Ervin is a member of the General is chair of the board of trustees of Moses Board of Discipleship and secretary for James A. Adams, who is the Richard M. and H. Cone Hospital in Greensboro. Discipleship Resources. He is a trustee of Anita Calkins Distinguished Professor of Gammon Theological Seminary in Law at Drake University Law School, was Atlanta, and on the board of both Cobb selected the Leland Forrest Outstanding County and Georgia Special Olympics. Professor by the students of the Class of Rosemary Kittrell is in the final year 1995-the fourth time he has received of a master's degree program in social Ronald G. Seeber serves as a member of the this award. He co-authored Trial Motions work at the University of Georgia, after board of directors of the N .C. League of in Criminal Prosecutions published by which she will have a practicum assign­ Municipalities and is a past president of the The Michie Co. ment as a counselor at a counseling N.C. Association of Municipal Attorneys. agency, Families First.

AL U MNI NEWS DUKE LAW MAGAZINE • SS ,.jI"WII:t#iJ Professional News I

Carl F. Lyon , Jr. joined the New York office Julie A. Gaisford has her own law practice Federation of State, County, and of Orrick, Herrington & Sutcliffe as a in Seattle. She is a frequent lecturer and Municipal Employees from 1991-93. partner. Lyon, nationally known for his panelist for the American Trial Lawyers comprehensive energy finance practice, Association, a public defender for the James R. Fox, director of the Winston­ has extensive experience in all areas of Suquamish Tribe, and a member of the Salem law firm of Bell, Davis & Pitt, finance and contractual negotiations for Pacific Islanders Children and Youth was appointed to chair the Trial Practice rural electric cooperatives, public power Services Board. Continuing Legal Education Curriculum issuers, and federal power agencies. Committee of the N.C. Bar Association, E. Will iam Haffke was named partner-in­ charged with developing and coordinat­ Robe rt S. Ma r quis , a member of charge of the Cleveland office of Benesch, ing continuing legal education in the McCampbell & Young in Knoxville, was Friedlander, Coplan & Aronoff. Prior to areas of litigation and trial practice. elected a fellow of the American College of joining the firm in 1992, he was executive Trust and Estate Counsel. He practices in vice president of credit policy and risk David L. Sigler, shareholder of The Gray the areas of federal and state tax and estate management at Ameritrust Corporation. Law Firm of Lake Charles, La., was law, corporate law and health care law. appointed chairman of the Advisory Charles B. Neely, Jr. , director of the firm Commission for Estate Planning and Marlin M. Volz, Jr. was appointed co-chair Maupin Taylor Ellis & Adams in Raleigh, Administration Specialization of the of the Iowa Governor's Blue Ribbon was named to the Board of Governors Louisiana State Bar Association. Transportation Taskforce to review how of the N .C. Bar Association. Neely has the road use tax fund is spent. chaired the Association's law office management section. His primary area D. Todd Christofferson was called in 1993 to Lynn E. Wagner is a partner in the Orlando of practice is state and local taxation. serve as member of the First Quorum of the office of Baker & Hostetler. He is a member of the N.C. House of Seventy of the Church of Jesus Christ of Representatives. Latter-Day Saints. Prior to serving as a full time general authority of the Church, Charles L. Becton , Raleigh attorney and for­ he was associate general counsel of mer N.C. Appeals Court judge, received Ernie Baird is majority leader of the NationsBank in Charlotte. Previously he the Robert E. Keeton Trial Advocacy Arizona House of Representatives, in was senior vice president and general Teaching Award from the National addition to practicing law in Phoenix. counsel for Sovran Bank of Tennessee Institute for Trial Advocacy. in Nashville, and practiced law in John R. Ball was named to the new posi­ Washington, D.C. after serving as law clerk John P. Cooney, Jr., a partner in the New tion of execu ti ve vice president for clini­ to then-U.S. District Judge John J. Sirica. York firm of Davis Polk & Wardwell, was cal services at Pennsylvania Hospital. inducted as a fellow of the American The nation's first hospital, Pennsylvania John D. Englar was named senior vice pres­ College of Trial Lawyers. Hospital, is a major teaching institution. ident for corporate development at Ball is the chief administrative officer for Burlington Industries, a new position that Ronald E. DeVeau established the firm of will facilitate the company's exploration DeVeau & Norcross in Kill Devil Hills, the hospital and related clinical matters, N.C. He emphasizes civil litigation, par­ and serves as a member of the hospital's of new business opportunities worldwide. ticularly personal injury and business dis­ board of managers. He oversees the hos­ Englar has held a number of corporate putes. pital's three operating divisions, an acute offices since joining Burlington in 1978, care facility in Society Hill, a psychiatric and has been a member of the company's Frank M. Mock, a partner in the Orlando facility in West Philadelphia, and the board of directors since 1990. office of Baker & Hostetler, was elected a Hall-Mercer Community Health Center. fellow of the American College of Joseph A. McManus, Jr., a partner practicing Mortgage Attorneys. Mary Joyce Carlson was named deputy gen­ construction and government contract eral counsel of the National Labor law with Lyon and McManus in Thomas W. Murray joined Central Carolina Relations Board. Since 1993, Carlson had Washington, D.C., was elected secretary Bank and Trust Company as senior vice been special counsel, International of the American College of Construction president and manager of the trust and Brotherhood of Teamsters, where she was Lawyers. He was appointed chair of the investment division in Durham. responsible for setting up an ethical prac­ Procurement Reform Task Force com­ tices committee and internal ethical stan­ missioned by the District of Columbia dards and guidelines for the union. She City Council's Government Operations was associate general counsel, American Committee.

56 • DUKE LAW MAGAZINE S P RING 9 6 Professional News '."ilm"~li·4j

Jeffrey S. Portnoy was appointed per diem Ira Sandron, judge of the U.S. Immigration Charles Wiggins was appointed to complete district court judge in Hawaii and elect­ Court in Miami, was appointed to an unexpired term on the Washington ed as state representative to the Defense the Task Force on Opportunities for Court of Appeals in 1994, after practicing Research Institute. Minorities in the Judiciary of the Judicial law with Seattle's Edwards, Sieh, Wiggins Administration Division of the American and Hathaway for 18 years. Laurence R. Tucker, a partner at Watson, Bar Association. He spoke at a program Ess, Marshall & Enggas in Kansas City, is sponsored by the American Immigration G. Gray Wilson, attorney in Winston­ president of the Missouri Bar Association. Lawyers Association on issues pertaining Salem, was elected a fellow in the to the inter-relationship between crimi­ American College of Trial Lawyers. nal and immigration law held in Miami Allan D. Windt , who in 1981 authored S. Ward Greene, who practices with Greene in 1995. Insurance Claims and Disputes & Markley in Portland, was elected pres­ Peter D. Webster received a master of laws [Shepard's/McGraw-Hill, 1988, 2d ed.) ident of the Owen M. Panner American degree in judicial process from the had a two-volume edition of the book Inn of Court in Portland for 1995-96. The University of Virginia Law School in 1995. published in 1995. Inn promotes civility, professionalism, ethics, and excellence in the practice of law. Allyson K. Duncan, a commissioner on the Harold I. Freilich is a member of the Kenneth W. Starr, former U.S. Solicitor N.C. Utilities Commission, received the Washington, D.C. office of Verner Liipfert General and currently a partner in the 1995 Gwyn Davis Award from the N.C. Bernhard McPherson and Hand, where he Washington, D.C. office of Kirkland & Association of Women Attorneys. continues his corporate and internation­ Ellis, and Whitewater counsel, was named Duncan was honored for her community al transaction practice. the third president of the Council for involvement with women's organizations Court Excellence by its board of directors. Lau ren E. Jones was elected secretary of the and as the first African-American Rhode Island Bar Association. Jones is the Ralph B. Weston received a master's degree woman to serve on the N.C. Utilities principal of the Providence law firm, in information science with honors from Commission and the N.C. Court of Jones ASSOciates, where his practice is the University of Texas at Austin with Appeals. Duncan is a member of the 1996 concentrated in appellate law. He has emphasis on legal informatics. He is coor­ U.S. Women's Open Golf Championship been active in the Rhode Island Bar dinator of the Center for Computer-Based advisory committee. Association's House of Delegates and Legal Research and Instruction at the Nathan C. Goldman , adjunct professor of Executive Committee, and recently com­ Tarlton Law Library at Texas. Formerly of space law at South Texas College of Law, pleted a six-year term as editor-in-chief of counsel to the firm of Wray, Woolsey & is publishing the second edition of his the Rhode Island Bar Journa1. Anthony, Weston had practiced law in American Space Law: Domestic and Andrew J. Peck is magistrate judge for the Corpus Christi since 1973, and started Internationa1. His article on changes in Lawyers' Information Services, a business U.S. District Court for the Southern space law appears in the fall edition of District of New York. providing information retrieval and con­ Trial magazine. sulting services to the legal profession. Michael H. Wald was appointed vice chair of the Alternative Dispute Resolution Committee in the General Practice Griffeth T. Parry formed the law firm of Edna Ball Axelrod opened a law office as a Section of the American Bar Association. Parry & Howard in West Orange, N.J. The The General Practice Section represents sole practitioner in West Orange, N.J" in firm primarily represents insurers. 1995. She concentrates in the areas of crim­ approximately 13,000 lawyers through­ inal defense, white collar litigation, appel­ Robert C. Weber is president of the out the country, most of whom are in pri­ late practice and commercial litigation. Cleveland Bar Association. His plans for vate practice. the association include a special effort to Candace Carroll was elected to a three-year substantially improve juvenile justice by term on the San Diego County Bar establishing a Juvenile Justice Initiative Suzanne J. Melendez was appointed crimi­ Association's board of directors [SDCBA) and Juvenile Justice Committee. in 1995. Carroll is a mentor in the SDCBA nal court judge of the City of New York Partnerships in Education Program and by the Mayor. president of the Muirlands Foundation.

ALUMNI NEWS DUKE LAW MAGAZINE • 57 Renewing

Our

Ties

for the

Future

... "...... " . 58 • DUKE LAW MAGAZINE SPRING 96 , i . " -

ALUMNI NEWS DUKE LAW MAGAZINE • S9 i.,"'m"~lmj Professional News

Edward P. Tewkesbury, former senior real Michael B. Kupin joined the real estate prac­ Thomas W. Logue served on the faculty of estate counsel with Giant Food, Inc. tice group of the New York-based law a series of legal seminars sponsored by the in Washington, D.C., joined Adams firm, Camhy, Karlinsky & Stein. Kupin, National Trust for Historic Preservation. Kleemeier Hagan Hannah & Fouts, a formerly associated with firms in New Logue, an assistant Dade County attor­ multi-specialty law firm serving clients York and Newark, tax consultant with ney, has served as legal adviser to the throughout the Southeast. He concentrates Price Waterhouse, and in-house legal Dade County Historic Preservation Board on commercial real estate, construction counsel to a New York real estate invest­ since 1984. For his work in preservation, financing, and environmental law. ment company, has extensive experience he was given a 1995 individual service in commercial leasing and lending. award from the Dade Heritage Trust.

Kimberly S. Perini is assistant general I. Scott Sokol was appointed executive Alan Bender is senior vice president and counsel, U.S . lodging management and director of the South Carolina Democratic general counsel with Western Wireless real estate development for Marriott Party. Corporation in Bellevue, Wash. International in Bethesda, Md.

Joel H. Feldman was elected president of David C. Tarshes was named co-recipient of the Florence Fuller Child Development the 1995 Trial Lawyer of the Year Award Mark S. Calvert, an associate general coun­ Center in Boca Raton, a non-profit by Trial Lawyers for Public Justice. sel at Carolina Power & Light, was select­ preschool, afterschool and summer camp, ed by the Land Trust for Central North providing services to approximately 600 Beth Woodland-Hargrove, former deputy Carolina to serve on its board of advisors. economically disadvantaged children in counsel to Maryland's Department of The Land Trust protects land resources Palm Beach County. The Palm Beach Housing and Community Development, for the public benefit. He continues to County Bar Association presented him was named deputy Baltimore County serve on the board of directors for with the 1994 Community Service Award attorney. Since 1988, she has worked in Artspace, Inc., a non-profit art studio and for outstanding pro bono services. the Maryland attorney general's office. gallery in Raleigh.

Gray McCalley is general counsel for the Richard L. Garbus is a partner at Solomon, German division of the Coca-Cola Fornari, Weiss & Moskowitz in New York. Company's European operations. Barbara J. Degen, a staff attorney at Catawba Valley Legal Services in John B. Garver, III became a shareholder Morganton, N.C., received the N.C. Bar at Robinson, Bradshaw & Hinson in Association's 1995 Outstanding Legal Charlotte, where he practices business, Elizabeth Kuniholm was one of 48 women Services Attorney Award honoring legal employment, and domestic litigation. in the North Carolina delegation to the services attorneys who have provided Paul A. Hilding is practicing with the San United Nations Fourth World Conference outstanding service to low-income and Diego firm of Hilding, Kipnis, Lyon & on Women and the tandem Non­ disadvantaged North Carolinians. Governmental Organization forum. Kelly in the areas of insurance coverage, Vern Fagin wrote the surety bond chapter real estate, financial institutions, and Happy R. Perkins was appointed general in the three-volume treatise, Insurance general business litigation. counsel and general manager, public Litigation, on the topic of California Michael A. Lampert, board certified tax affairs for General Electric Appliances bonds and surety law. He is an attorney lawyer in private practice in West Palm headquartered in Louisville, Ky. for the Los Angeles office of Wilson, Elser, Beach, serves as emergency services chair Moskowitz, Edelman & Dicker. Lisa Margaret Smith became a U.S. magis­ and chapter vice chair of the Palm Beach trate judge for the Southern District of John A. Forlines, III was appointed a man­ County Red Cross. New York in 1995. aging director of JP Morgan & Company. Mark J. Langer was appointed to serve as He is a senior banker in JP Morgan's clerk of court of the U.S. Court of Appeals investment banking division specializing for the District of Columbia Circuit. He in public equity and debt financings. will oversee a major reorganization of the Bernard H. Friedman took a position as a Clerk's Office and the Chief Staff Counsel's law clerk to Washington State Supreme Office. Langer was chief staff counsel to the Court Justice Philip A. Talmadge in 1994.

60 • DUKE LAW MAGAZ I NE SPRING 96 Professional News '·ji'UmIHiflJ

Court for eight years supervising a 17-per­ son Counsel's Office that assists the Court FIGHTING FOR A CURE in organizing and managing complex liti­ gation and in handling motions and emer­ aniel J. Grossman '89 has given up the practice of law to gency matters and the screening of cases. Dlead a charitable foundation that promotes research and Michael T. Petrik, a partner in the Atlanta education into his young son's rare disease. Grossman has office of Alston & Bird, was elected to the organized the Children's Motility Disorder Foundation board of directors of the United Way of (CMDF), dedicated to physician education and medical Metropolitan Atlanta. He is a member of the board of directors of Big Brothers/Big research in the type of rare gastrointestinal disorder suffered Sisters of Metro Atlanta. by his son, Matthew, since he was born in October 1992. Grossman resigned from the Atlanta law firm of Powell, Carolyn J. Woodruff announces the forma­ tion of Schoch & Woodruff with offices in Goldstein, Frazer & Murphy after five High Point and Greensboro. years as a commercial litigation attorney. As president of the foundation, which he established in January 1995, Grossman Benjamin R. Foster was elected to the national board of directors of the raises and distributes funds to increase Alzheimer's Association. Foster now awareness about pediatric gastrointesti­ serves as president of Sunset Management nal motility disorders, a range of rela­ Services, a company providing services to people with Alzheimer's disease and their tively rare disorders affecting a child's families, from offices in Harvard, Mass., ability to eat and process food. and Jupiter, Fla. "As a result of my son's iIIness,l expe­ Aud rey McKibbin Moran has her own firm rienced the grief, terror, and desperation in Jacksonville, Fla., where she practices felt by parents facing the possible loss of employment law. a child, whose only hope is that a long­ term treatment or cure will be discov-

Carla Behnfeldt opened her own general ered before it is too late. I knew that I practice in West Chester, Pa. needed to do whatever I could to help this

William W. Ho rton joined Healthsouth Daniel Grossman cause," wrote Grossman. Atlanta resi- Corporation, the nation's largest provider and his son, dents read about Grossman and the CMDF in the article "A of rehabilitative and outpatient health Matthew. care services, as group vice-president for father finds another calling" in the Atlanta Business Chronicle legal services in Birmingham, Ala. in May: Matthew's condition is stable but "requires constant medical attention .... Requiring the occasional aid of oxygen, Michael A. Kalish was promoted from asso­ ciate to counsel in the New York office of he is fed through feeding tubes that run directly into his small the law firm of Winthrop, Stimson, intestine." Putnam & Roberts. He is a litigator con­ centrating his practice on the representa­ "We have gotten considerable support from the Duke tion of management in all aspects of labor Law alumni community," said Grossman. "As just one exam­ and employment law. ple, Randy Hughes of Powell, Goldstein was one of our ear­ liest supporters." For more information about the Children's Motility Disorder Foundation, contact Grossman at 1534 DunwoodyViliage Parkway, Suite I04 , Atlanta, Ga. 30338.

ALUMNI NEWS DUKE LAW MAGAZINE • 61 '.j"'m"~IWj Professional News I

David S. Liebschutz was appointed associ­ John Pelletier is vice president and gener­ Thomas S. Gauza is of counsel to the law ate director of the Center of the States at al counsel of Boston Institutional Group, firm of Blau, Kokoszka & Bonavich in the Nelson A. Rockefeller Institute of Inc. and senior vice president and gener­ Chicago. Government. The Center was established al counsel of its Funds Distributor, Inc., in 1990 to provide high quali ty, practical, Premier Mutual Fund Services, Inc. and Cynthia Buss Maddox independent research about state pro­ Boston Institutional Group, Inc. sub­ was named part­ grams and finances. Liebschutz joins the sidiaries. In addition, he is vice president ner in the law Center after four years in New York State and secretary of the Dreyfuss Funds. firm of Goldberg government, most recently as the direc­ & Simpson. She tor of marketing and special projects Michael Peterson-Gyongyosi manages the practices in the a t the NYS Environmental Facilities Prague office of the German partnership Louisville, Ky. Corporation. He spent several years in Haarmann, Hemmelrath, attorneys, CPAs office where she Washington working for the U.S. Trea­ and tax advisers. The partnership will concentrates in sury Department and the private sector. open additional offices in Eastern Europe. commercial loan documentation, secured transactions, Ne il D. McFeeley, an attorney with the Robert A. Scher was named partner in commercial real estate, bankruptcy, and Boise, Idaho law firm of Eberle, Berlin, Friedman, Wang & Bleiberg in New York. commericiallitigation. Kading, Turnbow & McKlveen, was re­ Daniel R. Schnur was promoted to senior Julie O'Brien Petrini was promoted to trade­ elected to the board of directors of the vice president, general counsel and secre­ American Judicature Society, the nation­ mark counsel at Polaroid Corporation in tary of Richfood Holdings, Inc, a whole­ Cambridge, Mass. al organization that promotes improve­ sale grocery distributor headquartered in ments in the courts. Richmond. J. Thomas Vitt, III was named a partner in David E. Mills is a partner at Dow Lohnes the trial department of Dorsey & Whitney Kri sten Larkin Stewart is a partner in in Minneapolis in 1995. & Albertson in Washington, D.c. in the the Pittsburgh office of Kirkpatrick & litigation department. Lockhart, where she practices general Peter Weinstock served on the special task corporate, securities and financial insti­ Amy Kincaid Berry returned to the full-time force that rewrote the state banking laws tutions law. practice of law, following her maternity in Texas. Peter Tobias is a partner at Viner, Kennedy, leave with her second son in March 1995, Frederick, Allan & Tobias in Kingston, at the law firm of Hill, Wynne, Troop & Ontario, where he practices corporate and Meisinger in Los Angeles. She was elect­ M. David DeSant is is a partner in the commercial law. ed to principal status in 1994. Northern California law firm Kincaid, Richard H. Win ters was named rector of St. Gianunzio, Caudle & Hubert specializing Kodwo Ghartey-Tagoe is an associate with John's Episcopal Church in Saginaw, in civil litigation. the Richmond-based law firm of Mays & Mich. Valentine, where his practice focuses on Larry Gramlich was named partner in the utility and insurance regulatory law and Atlanta firm of Troutman Sanders where international business. He was elected to he practices in the commericial real Scott A. Cammarn is senior counsel for a two-year term on the Virginia State estate area. regulatory affairs for NationsBank in Bar's Administrative Law Section Board of Governors. Christopher M. Kelly joined Jones, Day, Charlotte. He will teach a banking regu­ Reavis & Pogue, working in the firm's lations class at the Law School this fall. Robert McDonough joined Aetna Health Cleveland office. Carol Davis has associated with the law Plans in Middletown, Conn., in 1995 as medical director and senior technology Lisa A. Krupicka is a partner in the law firm firm of Wear & Travers in Vail, Colo., where she practices real estate law. consultant in Aetna's clinical and cover­ Burch, Porter & Johnson in Memphis. age policy division. Previously, he was Rob in Panovka is a member of the David Donaldson owns and operates the senior analyst and project director for the Wachtell, Lipton, Rosen & Katz law firm Bysiewicz-Donaldson insurance agency Health Program, Office of Technology in New York. in Manchester, Conn. Assessment, U.S . Congress in Washing­ ton, D.C.

62 • DUKE LAW MAGAZIN E S P R I N G 96 I Professional News , .,."WIIHlfiJ

Theresa A. Newman, head of Duke Law Dania A. Leatherman joined Kizer and Black Michael B. Gay School's legal research and writing pro­ in Maryville, Tenn., as an associate con­ joined Foley & gram, will serve as reporter for the civil centrating in tax and corporate law. Lardner as an justice committee for the commission associate in the designed to assess the future of the jus­ Phillip McCarthy, who received an MBA litigation depart­ tice system in North Carolina. from the University of Chicago in 1995, ment of its is a financial consultant with KPMG Peat Orlando office. Emily Quinn received an MLS from the Marwick in Chicago. He was in pri­ University of Washington. vate practice in Tricia Wilson Medynski became a partner in Houston. Michael C. Sholtz is director of planned giv­ Wallace, Creech, Sarda & Zaytoun in ing for Duke University. Raleigh, where she concentrates her prac­ Thomas A. Hanusik is senior counsel in the tice in the areas of medical negligence, Division of Enforcement at the SEC in Howard A. Skaist is senior attorney with complex tort litigation, and commercial Washington, D.C. Intel Corporation in Hillsboro, Ore., litigation. where his responsibilities include pro­ Sally J. McDonald, viding counseling covering all aspects of Wendy D. Sartory is working with Gunster, an associate at intellectual property such as patents, Yoakley, Valdes-Fauli & Stewart in West Rudnick & Wolfe copyrights and trade secrets. Palm Beach in the real estate and finance in Chicago, was departments. awarded the Barbara Heggie Stewart is a clerk on a full­ Chicago Bar time, permanent basis with the New Matthew L. Woods was named partner in Foundation's 1994 Hampshire Supreme Court. the Minneapolis office of Robins, Maurice Weigle Kaplan, Miller & Ciresi, where he prac­ Outstanding Ser­ James Walker IV joined the Atlanta office tices all aspects of business litigation vice Award which of Nelson Mullins Riley & Scarborough with a special emphasis on intellectual as an associate in the corporate and secu­ property and antitrust matters repre­ is given in recognition of young lawyers whose activities in a given year make an rities area. senting both plaintiffs and defendants. exceptional contribution to the integrity of the legal profession, the organized bar and the community. McDonald is active Carla L. Brown was promoted to head of Gregory Baylor is assistant director of the with the Young Lawyers Section of the the litigation department in the West Center for Law and Religious Freedom, Chicago Bar ASSOCiation, since 1991 Palm Beach office of Honigman Miller the legal advocacy arm of the Christian serving as co-chair of the Women and Schwartz and Cohn. Legal Society in Washington, D.C. The the Law Committee and vice-chair of Center seeks to protect religious liberty Jeffery S. Haff is employed with the law the Section for 1995-96. She chaired of Americans through litigation, amicus firm of J. Michael Dady & Associates in the Young Lawyers Section's annual Minneapolis, which specializes in litiga­ advocacy, legislative work, and public Children's Book Drive, and organized a tion on behalf of franchisees, distributors, education. Children's Story Hour and collection and dealers throughout the United States. drive for necessities for area homeless Bradley B. Furber shelters. She serves on the personnel is a founding part­ Angela M. Hinton announces the opening board of the Greater Chicago Food ner of the Van of her office in Savannah for the general Depository. practice of law. Valkenberg Furber Law Group in Mark A. Redmiles has joined the Denver Paula A. Hulnick announces the opening of Seattle, which office of Cooley Godward Castro her office for the general practice of law provides assis­ Huddleson & Tatum, where he continues in Teaneck, N.J. tance with corpo­ to practice in the areas of business, bank­ rate finance and ruptcy and employment related litigation. Frank J. Kokoszka is managing partner of general business Blau, Kokoszka & Bonavich in Chicago. matters. Lawrence Silverman was appointed to the Council of the American Bar Association Section of Antitrust Law.

ALUMNI NEWS DUK E L AW MAGAZ I N E • 63 , . ,,"m"~ltMj Professional News I

Calvin Bennett was promoted to major and Ron Krotoszynski, Jr. joined the faculty at Henry J. Mims is in private practice in assigned to headquarters, U.S. Marine Indiana University School of Law where Greer, S.c., where he also serves as a Corps Military Law Policy Branch in he will teach administrative law, consti­ municipal court judge. He was invited Washington, D.C. tutional law, and communications law. to attend the first Gerry Spence Trial He recently published Celebrating Selma: Lawyer's College in Wyoming. Cris D. Campbell is a law clerk for Judge The Importance of Context in Public Clarence Brimmer, U.S. District Court in Forum AnalYSis in the Yale Law TournaI. Douglas H. Jackson joined Jenner & Block Cheyenne, Wyo. He was previously an as an associate in the corporate depart­ associate in the Washington, D.C. office Trent W. Ling started his own firm ment in 1995. of Kirkland & Ellis. practicing insurance defense litigation in Orlando. Norman H. Petty, Jr. is an associate in the James R. Cannon is practicing patent law at business and finance section in the Bell, Seltzer, Park & Gibson in Raleigh. Adam A. Milani joined the University of Philadelphia office of Morgan, Lewis & Illinois as a legal writing instructor Bockius. Louis S. Citron joined the New York City following a clerkship with the federal office of Kramer, Levin, Naftalis, Nessen, magistrate in South Bend, Ind. Erin E. Powell has moved from the public Kamin & Frankel where he practices in to the private sector. After serving as an the area of financial services representing Michael S. Popok joined the New York administrative judge for the EEOC from mutual fund complexes, investment office of Sidley & Austin concentrating 1992-95, Powell is now an associate in advisers, broker-dealers and other service on complex commercial and business tort the Washington, D.C. office of Ogletree, providers within the pooled investment litigation and white collar defense. Deakins, Nash, Smoak & Stewart, which vehicle industry. speCializes in labor and employment law. Dara S. Redler is in-house counsel for Jane Elizabeth H. Davis has jOined the Worldspan in Atlanta. Anuja Purohit has joined the San Francisco Richmond office of McGuire Woods office of Sonnenschein Nath & Rosenthal Cliona Mary Robb is working at Christian, Battle & Boothe where she practices in as an associate. Barton, Epps, Brent & Chappell in the general business section. Richmond. Bradford J. Tribble is working in-house at Shawn Flatt joined the U.S. State Sara Lee/DE in the Netherlands, where he Department in 1995, and was posted to is responsible for the legal affairs of the Santo Domingo, Dominican Republic for direct selling division. Gloria Cabada-Leman is an associate in the a two-year consular/economics rotation. Durham office of Moore & Van Allen Paul Veidenheimer returned to Boston in Dawn M. Futrell opened an office in Stuart, practicing intellectual property litigation. 1995, where he is working at Hutchins, Va ., where she is engaged in a general law Wheeler & Dittmar. Jayne Chapman has joined the CIT group practice and is an assistant Common­ in Atlanta as in-house counsel. wealth's attorney on a part-time basis. Gail H. Forsythe has settled in White Rock, Stephen A. Good is in-house legal counsel Anna Elizabeth Daly has joined her father, British Columbia, where she has her own with PCS Health Systems, Inc., the George Daly, as an associate with his law offices, after living in four American largest prescription benefit management practice in Charlotte. and Canadian cities. company in the United States, located in Jennifer Buchanan Machovec is a staff attor­ Scottsdale. Sandra Galvis is an associate at Cleary, ney at the U.S. Court of Appeals for the Gottlieb, Steen & Hamilton in New York. Cynthia Craig Johnson and Todd C. Johnson Federal Circuit. are in Jacksonville, Fla., where they work Katherine A. Hermes, who received her James O. Stuckey, II is an associate in the for Mahoney, Adams & Criser and Ph.D. in history from Yale University in Columbia, S.c., office of Nelson Mullins Holland & Knight, respectively. 1995, is on the history faculty at the Riley & Scarborough. University of Otago in New Zealand. Monique Rowtham Kennedy joined the Jamie Yavelberg is an attorney with Orans, legal department of Northeast Utilities Elsen & Lupert in New York. Service Company in Berlin, Conn., as a regulatory attorney.

64 • DUKE LAW MAGAZINE SP R ING 96 I Professional News ""'Um':'¥tlJ

SPECIALLY NOTED Constantine J. Zepos moved to Paris, where Kevin J. Karpin joined the Overland Park, he works on financial and legal projects Kansas office of Shook, Hardy & Bacon as of the European Commission in the an associate in the business litigation LAW ALUMNI former Soviet Republics. He expects to practice group. spend at least eight months in Moscow. ELECTED AS Giordano Rezzonico has re-joined his firm, Lenz & Stachelin, in Switzerland follow­ DUKE ing an internship with Hogan & Hartson Randall l. Clark joined the Los Angeles in Washington, D.C. After spending six TRUSTEES office of Morrison and Foerster. months in the Zurich office focusing on intellectual property matters, he re-joined David A. Coolidge, Jr. entered the Duke Two Law School alumni were named the litigation department of the Geneva School of Medicine class of 1999. to the Duke University Board of office. Frank M. Dale , Jr. joined the Washington Trustees. Paul Hardin III '54, former Kathy Schill is an associate in the litigation D.C. fum of Dickstein, Shapiro & Morin chancellor of the University of North group at Michael Best & Friedrich in in the business crimes group. Milwaukee. Carolina at Chapel Hill, was elected Theodore C. Edwards, II has joined the to serve a six-year term. State Rep. James W. Smith, III was promoted to the Charlotte office rank of captain in the U.S. Army Judge Daniel T. Blue Jr. '73, former speaker of Petree Stockton Advocate General's Corps. He is a legal where he prac­ of the North Carolina House of assistance officer at Fort Eustis, Va. tices in the area Representatives, is completing the of environmental Michael J. Sorrell is an associate in the cor­ unexpired term of retiring trustee law. He is a mem­ porate section of Jenkens & Gilchrist in Dr. Daniel Tosteson, serving through ber of the N.C. Dallas. Black Lawyers 1999 before becoming eligible for re­ Association and Lisa P. Sumner is an associate at the election to the board. Another new the Law Student Columbia, S.c., office of Nelson Mullins Riley & Scarborough. Un iversity Trustee is Sally Dalton Activities Com­ mittee of the N .C. Bar Association. Robinson, a 1955 Duke graduate, a community service volunteer in Michael J. Elston was appointed an adjunct professor of legal writing at the Charlotte, and wife of Russell M. University of Missouri at Kansas City Robinson, II '56. They join Christine School of Law for the 1995-96 academic M. Durham '71, an associate justice of year. He is in the second year of a two­ year term as a law clerk to the Honorable the Utah Supreme Court, who began Pasco Bowman of the U.S. Court of her Duke Trustee service in 1994. Appeals for the Eighth Circuit. John A. Koskinen, chairman of the Patrick C. Heinrich joined Robinson, board, said the new trustees "bring a Bradshaw & Hinson in Charlotte. Having wealth and variety of experience to been admitted to the Brussels bar, where he practiced briefly, Heinrich is licensed the board." to practice in all member states of the European Union and handles a variety of international corporate and commercial matters.

ALUMNI NEWS D U KE LAW MAGAZINE • 65 • .".'WIIHMj Personal Notes

Jeremy R . Johnson married Kathleen Gale David C. Tarshes married Deborah James R. (Rob) Moxley, III and his wife, Ann, McCourt on September 16, 1995, in Kerdeman on August 20, 1995. They announce the birth of their second child, Washington, D.C. He is a retired appel­ reside in Seattle. Ellen Marie, on January 6, 1995. She jOins late judge for the U.S. Army Court of a brother, James, lV. Military Review in Washington. They reside in Sarasota, Fla . Mary Woodbridge married Robert K. de Veer, Nina Collins Carey married Stephen James Jr. on February 18, 1995. They are both Merten on August 5, 1995. They live in managing directors of Lehman Brothers in Traverse City, Mich. New York and live in Bernardsville, N.J., Je rry J. McCoy married Alexandra with their five children. Armstrong on September 30, 1994. They Edith K.W.J. Revet and her husband, Paul reside in Washington, D.C. Klemann, announce the birth of a son, Marc Alexander Paul, on May II, 1995. Susan Bysiewicz and David Donaldson '87 announce the birth of their third child, John C. Weistart married Denise E. Thorpe Tristan Taylor, on August 5, 1995. Richard L. Garbus and his wife, Peggy, '90 on May 28, 1995, in Denver. They reside in Raleigh. announce the birth of their third child, Larry Gramlich and his wife, Chris, Richard William, on December I, 1995. announce the birth of Sean Daniel on December 28, 1994. He joins a brother, Rond i Hewitt Grey and her husband, Eric Andrew. Joan Harre Byers Erwin married Robert Michael, announce the birth of a son, Erwin on November 24, 1995. They Colin Andrew, on November 9, 1994. LyndaJl J. Huggler and his wife, Elizabeth reside in New Hill, N.C. Joan is an assis­ Seiders, announce the birth of a daughter, tant attorney general in Raleigh. Kimberly Susan, on November 29, 1994.

Barbara Tobin Dubrow and her husband, Ira Sandron married on February 24, 1996, Lisa A. Krupicka and her husband, Sam the birth of their sec­ in Miami. Kenneth, announce 1. Crain, Jr., announce the birth of ond child, Scott Forrest, on May 22, 1995. Samantha Charles on September 25, 1994. Audrey Moran and her husband, John, wel­ comed their fourth child and second son, Kiyoshi Nakatsu i and his wife, Dorothy, had Stephen Labaton married Miriam Sapiro their first child, a daughter named Kiyoko Michael Patrick, on March I, 1995. on June II, 1995, in East Hampton, N.Y. Alicia, on February 20, 1995. They reside in Washington, D.C. where Steven Natko and his wife, Sherrie, announce the birth of a daughter, Emily Stephen is a legal affairs correspondent for George, on June 22, 1995. The New York Times and Miriam is a lawyer in the Legal Adviser's Office of the Robert M. Blum and his wife, Tracy, announce the birth of a son, Matthew Eric Weiss reports that he and his wife, U.S. Department of State. Lynch, on November 11, 1994. Stacey, are the parents of twin boys, Alexander Vale and Benjamin David. Jess Lorden and her husband, Dave, wel­ comed their first son, Robert, on February Lawrence G. McMichael and his wife, 27, 1995. He joins a sister, Sarah. Virginia, announce the birth of a son, John Lawrence, on April 6, 1995. Carla Behnfeldt married Chuck Mooney in Robert Scher and his wife, Amy, announce June 1994, and moved to the Philadelphia the birth of Madeline on July 31, 1995. area. She joins a brother, Jackson. The family Genevieve Harris Roche and her husband, resides in Pleasantville, N.Y. Con, report the birth of their second son, William W. Horton and his wife, Judilyn Brooks, announce the birth of their first Peter Tobias and his wife, Heather, are liv­ Con Kieran, on July 7, 1995. child, William Reid Horton, on May 4, ing in Kingston, Ontario, and have two Lisa Margaret Smith married William 1995. children, George and Madeleine. Bowen in October 1994. They reside in South Salem, N.Y.

66 • DUKE LAW MAGAZINE S P RING 96 Personal Notes ' · "'nml~I'flj

Joel Bell and his wife, Susan, announce the Lyman H. birth of their first child, a daughter named Brownfield '37 Courtney Taylor, on April 30, 1995. meets Carol Anne David Donaldson and Susan Bysiewicz '86 Sennello '96 announce the birth of their third child, and Julie Anne Tristan Taylor, on August 5, 1995. Sennello '96 attheABA James E. Felman and Marleen A. O'Connor announce the birth of their second daugh­ reception ter, Allison Lynne Felman, on July 31, 1995. in Chicago.

Amy Solomon Hecht announces the birth of Allison Whitney on February 8, 1995. She joins a sister, Sara Hilary.

Chris and Julie O'Brien Petrini announce the Ansley and Mary Grey Reddick Moses Mark A. Redmiles and his wife, Beth, birth of Tabitha O'Brien Petrini on announce the birth of a son, James announce the birth of their first child, September IS, 1994. She joins a brother, Thatcher, on March 31, 1995. He joins a Elissa Marie, on September 29, 1994. Shawn. sister, Ann Tyler. James E. Ritch married Paulina Rocha Cito Erika Ch ilman Roach and her husband, Phillip Nichols and his wife, Amy, on March 2, 1996, in Mexico City. Neal, announce the birth of their first announce the birth of a second son, Lawrence Silverman married Jennifer Berry child, Samuel Chilman Roach, on Hilyard James, on January 8, 1995. on July 9, 1995. September 29, 1994. Emily Quinn and her husband, Mark Ryan, Den ise E. Thorpe married John C. Weistart Susan Gwin Ruch and her husband, David, announce the birth of their second child, '68 on May 28, 1995 in Denver. They announce the birth of their third son, Emma Dallas, on August 2, 1995. reside in Raleigh. Michael Robert, on January 4, 1996. Michael Scharf and his wife, Trina, Michael and Debra Marcus Watton announce Tom Vitt and his wife, Kamala, announce announce the birth of a son, Garrett the birth of Jacob Benjamin on May 16, the birth of their first child, Joseph Paul, Michael, on August 17, 1995. 1995. He joins a sister, Melissa. on April 20, 1995. Barbara Heggie Stewart and her husband, Van Xuan and his wife, Delphine Kune, David, announce the birth of a daughter, announce the birth of their son, Matthew Madeleine, on July 29, 1995. They reside James R. Cannon announces the birth of K. Yan, on June II, 1995, in Fountain in Concord, N.H. Christopher John on April I, 1995. He Valley, Calif. joins a brother, Drew, and a sister, Maria.

Carol Hardman and her husband, John, Louis S. Citron married Danielle Keats Morris in Garden City, N.Y., on May 7, Amy Kincaid Berry had a son, Andrew announce the birth of their son, Robin 1995. They reside in New York. Laurence, in March 1995. He joins a Paul, on October 17, 1994. brother, Alexander Scott. Irene Bruynes Ponce and Mario Ponce '88 Charles S. Det rizio and Erica Edwards were married on October 8, 1995, in Jeffrey Paul Bloch and his wife, Sharon, announce the birth of William Alexander, Bernardsville, N.J. They reside in announce the birth of their first child, on May 20, 1995. He joins a sister, Flemington, N,J. Randall Adam, on November 18, 1994. Elizabeth. Monique Rowtham Kennedy and her hus­ Mark DiOrio announces the birth of Wendy D. Sartory married Scott J. Link on band, Ken, announce the birth of a daugh­ Nicholas Grant, on April 30, 1995. He March 4, 1995, in Palm Beach Gardens, ter, Taylor Joyce, on November 23, 1994. joins a sister, Bailey, and a brother, Luke. Fla. They reside in West Palm Beach.

ALUMNI NEWS DUKE LAW MAGAZIN E • 67 ,.".'WIHdMj Personal Notes Obituaries

Susan Lennon married Edward Reed on Mark C. Brandenburg married Michelle Class of 1932 October 21, 1995 in Washington, D.C., Leigh Fulghum on December 16, 1995. Clyfford Goodman Scott,92, of Waynesville, where they are both associates at Shaw N.C., died December 27, 1995. Born in Jennifer Buchanan married Lieutenant Pittman, Potts & Trowbridge. Kenneth Machovec, USN, on September Concord, N.C., Scott received degrees from Trinity College and Duke Law Ellen Lisa Marx married Christoph Zeyen 2, 1995. They live in Alexandria, Va. in Brussels on July I, 1995. The couple are School. He was in private practice in associates at the law firm of Akin, Gump David Ross married Samant ha Evans '92 on Durham from 1932-42, then became pro­ & Strauss in Brussels. October 14, 1995. ject manager and attorney for the U.S. Corps of Engineers, for whom he engaged Jamie Yavelberg married Hunter Hagewood Dara S. Redler and her husband, Daniel, in land acquisitions until 1945. He trans­ announce the birth of Alec Brent on on December 10, 1994. They reside in ferred to the Office of General Counsel December 26, 1995. Morristown, N.J. with the U.S. Department of Agriculture in Washington, D.C. Later he was Jonathan Zeitler and his wife, Cynthia David Sage r announces the birth of a son, assigned to the rural electrification divi­ William Benjamin, on June 23, 1995. Baker, announce the birth of a son, Adam, on September IS, 1994. They live in sion, where he served until his retirement Washington, D.C. in 1965. He is survived by his wife of 70 years, Lois Collins Scott, a sister, and sev­ Eri c Avram and his wife, Lynne Greenberg, eral nieces and nephews. announce the birth of a son, Benjamin Kaye. Victoria K. McElhaney married Charles Class of 1933 Coleman Benedict, Jr. in Dallas on J. Paul Coie, 84, one of Washington state's Samantha Evans married David Ross '93 on September 2, 1995. They reside in leading trial lawyers and anchor of his October 14, 1995. Atlanta, where McElhaney is employed firm's litigation department, died March as director of annual giving for the pro­ 25, 1995. He earned a political science Martina Monique Garris married Galen fessional schools at Emory Unversity. Bingham on April 29, 1995, in New degree from Washington State College, Haven, Conn. They reside in University Paige N. Tobias married Timothy H. Button and after completing his law degree at Heights, Ohio. on August 27, 1994. They reside in Duke, he moved to Seattle, where in 1942 Indianapolis, where Tobias is a corporate he joined the law firm that is now Perkins CHona Mary Robb and her husband, Henry, finance associate with Baker & Daniels. Coie and helped build it into one of the announce the birth of their first child in largest firms in the Northwest. He November 1995. belonged to many professional organiza­ tions, including service as a regent of the American College of Trial Lawyers and president of the King County Bar Association. He established the 1. Paul Coie Fellowship at the Law School to pro­ vide financial aid to joint degree candi­ dates. Coie is survived by two sons, a daughter, grandchildren, great-grandchil­ dren, and two sisters.

Sam Garland Winstead, Jr., 85, attorney and philanthropist in Dallas, died April 12, 1995. Born in North Carolina, he attend­ ed Davidson College and graduated from the University of North Carolina at Chapel Hill with a degree in classics and a membership in Phi Beta Kappa. He earned an LLM at Columbia. Upon arriv­ ing in Dallas in 1934, he joined the facul­ ty at Southern Methodist University Law

68 • DUKE LAW MAGAZ I NE S P R I NG 96 Obituaries ' ."'IWIIU*j

School. He went to work in the U.S. John Calvin Harmon, Jr. , 85, of Morehead the Long Leaf Pine, the highest civilian Treasury's tax department in 1935, and City, N .C., died March 27, 1995. After honor awarded by the governor. He is sur­ entered private practice in 1944. In 1947, receiving the bachelor's and law degrees vived by his wife, Janice Little he was one of the founders of the finn of from Duke, he became director of social McConnell, two sons, two daughters, Jackson, Walker, Winstead, Cantewell & and industrial relations for the Board three stepsons, a brother, grandchildren, I Miller, the predecessor of the present-day of National Missions for the Methodist and great-grandchildren. firm, Jackson & Walker where he contin­ Church. He was director of special ser­ ued to serve of counsel. vices and legal counsel of Goodwill Class of 1938 Industries of America in Washington, 1 Morris Marks, native of Augusta, died May Class of 1935 D.C., where he was instrumental in get­ 3, 1995. A graduate of Augusta College, ting legislation enacted that aided shel­ Roy Murphy Booth , 83, died February 9, Marks served in the Army Air Forces dur­ 1995. Born in Pollocksville, N.C., Booth tered workshops for the handicapped. ing World War II. He was manager at graduated from Duke University. He was Harmon is survived by his wife, Lucille Marks Handkerchief Manufacturing admitted to the North Carolina bar in C. Harmon. Company, founded by his parents in 1924, 1935, practiced in Greensboro from 1946- where he remained until 1995. He was co­ 94, and was a member of both the James Rutledge Peake , Jr., 84, died founder of Sardis Manufacturing Co., American Bar Association and the N.C. November 6, 1994, in Norfolk. After Carole Fabrics, Burke Manufacturing Co., Bar Association for more than 50 years. receiving bachelor's and law degrees from Homestead Draperies, Southgate Bank During World War II, Booth served as a Duke, he was an agent with the Equitable (later Trust Company Bankl, Belle S. communications officer in the U.S. Navy Life Assurance Society for more than 60 Marks Foundation, and Augusta West with active duty in both the Atlantic and years, and served in the U.S . Navy during Rotary Club. Marks is survived by his Pacific. Active in the Greensboro com­ World War II. He was involved in the wife, Henrietta T. Marks, two sons, a munity, Booth was on the board of direc­ United Way for over 40 years. He is sur­ stepson, two stepdaughters, a brother, and tors of the Bank of North Carolina and vived by his wife, Sara W. Peake, a daugh­ a sister. later the board of NCNB. Booth is sur­ ter, and grandchildren. vived by his wife of 60 years, Marguerite Class of 1940 Collins Booth, two daughters, three sons, Class of 1937 R. Kennedy Harris, 82, retired Greensboro grandchildren, four sisters, and a brother. John Daniel McConnell, 85, retired North attorney, died December 30, 1995. He was Carolina Superior Court judge, died a special agent of the FBI from 1942-45, Frank U. Fletcher, 83, retired communications October 14, 1995, in Pinehurst, N.C. Born and served as an assistant U.S . attorney. attorney, died in Washington, D.C. on July in Davidson, McConnell graduated from He retired from a general civil practice in 23, 1995. A native of North Carolina, Davidson College where he was a mem­ 1983. He was president of the Greensboro Fletcher attended Wake Forest and Duke ber of Phi Beta Kappa, Omicron Delta Bar Association. He is survived by his universities. He joined the FCC in 1934, and Kappa and Kappa Alpha Order. He taught wife, Margaret Adams Harris '40; a daugh­ moved to private practice in Washington in at Episcopal High School in Alexandria, ter, Ann Louise Matney; two sons, Charles 1939. Following service in the Army as a Va ., before earning his law degree at Marcus Harris '72 and Thomas Adams Harris legal officer during World War II, he Duke. During World War II, he served in '71 , and grandchildren. returned to private practice retiring in the Navy as a It. commander. From 1946- 1983. He helped his father, A. Fletcher, 48 he served as an assistant U.S. attorney J. Maurice A. Weinstein, 79, a champion of establish the Capitol Broadcasting Co. in before becoming administrative assistant Jewish education on the national level, Raleigh and served as grants coordinator to U.S. Senator J. Melville Broughton and died July 25, 1995, in Charlotte. for the A. J. Fletcher Foundation. Fletcher his successor, Senator Frank P. Graham. Weinstein helped to create a study insti­ served as president of the Federal He was in private practice until his tute for adult Jews at Wildacres, North Communications Bar Association, on the appointment to the Superior Court by Carolina, in 1948. This retreat gave rise National Association of Broadcasters Board, Governor Terry Sanford in 1961, where to the B'nai B'rith Institutes of Judaism, and as chairman of the Washington chapter he served until his retirement in 1980. He the centerpiece of a national B'nai B'rith of Broadcast Pioneers, which gave him its was a member of the North Carolina Bar adult education program. He was the chapter award in 1984. Fletcher received an from 1937; vice president of the N.C. Bar founding chairman of the B'nai B'rith honorary law degree from Shaw University. Association in 1979-80; and former pres­ Continuing Jewish Education Commis­ He is survived by his wife, Nelle Wood ident of the North Carolina Judges sion, which publishes books and sponsors Crowell Fletcher, two sons, and a daughter. Conference. He was awarded the Order of the B'nai B'rith Jewish Book Club and

ALUMNI NEWS DU KE LAW M AGAZINE • 69 Obituaries

B'nai B'rith Lecture Bureau. He was a Sidney A. Martin, 76, retired attorney in John E. Pierce, Jr., 67, of Sanford, Fla., died chair of the International Council of B'nai Tulsa, died May 18, 1994. February II, 1995. A lifelong Central B'rith. Aiter graduating from Duke with Florida resident, Pierce had retired from bachelor's and law degrees and serving in Class of 1948 Sunniland Corporation and had been in World War II, he founded a law firm in William Brinkley, Jr., 71, died July 6, 1994, private practice and a co-owner of the Charlotte, where he practiced until his in Coral Gables, Fla. Brinkley received Mayfair Country Club. He is survived by retirement. He is survived by two daugh­ his undergraduate degree from the his wife, Mary Ann Whelchel, two sons, ters, a son, and grandchildren. University of Colorado. He was director two daughters, a sister, grandchildren, of admissions at Duke and Johns Hopkins and a great-grandchild. Class of 1941 University, former vice president for stu­ Hervey Moore,Jr., 78, retired state Superior dent affairs at the College of Charleston, James A. Scott, 70, died on May 31, 1995. Court judge and former mayor of and director of admissions at Florida He was a native of North Carolina and Hamilton Township, N.J., died August International University. He is survived received bachelor's and law degrees from 13, 1995. Aiter graduating from Duke by his friend, Blake Powell, a sister, a Duke after serving as commanding officer Law School, Moore served in the military nephew, and a great-nephew. of a patrol boat in the Pacific during World during World War II, leaving in 1946 to War II. A former chief counsel for the accept a commission in the National Class of 1950 Cleveland office of the Internal Revenue Service, he later entered private practice Guard. He served as head of New Jersey's William R. Cameron of Newtown, Pa., died Selective Service Board from 1963 until as a tax attorney. His professional April 22, 1994. He practiced law in affilia tions included the American Bar his retirement from the National Guard Bensalem, Pa., for 42 years. He was a at the rank of colonel in 1973. Moore was Association, Cleveland Tax Institute, solicitor for Bensalem Township, and and the Ohio and North Carolina Bar mayor of Hamilton Township from 1954- served as Bucks County controller. He is 55, after which he co-founded a law firm Associations. He is survived by his wife of survived by his wife, Lois, two daughters, 45 years, Patricia, two daughters, a son, in Princeton, where he was a partner until two sons, two sisters, and grandchildren. his appointment to the court in 1973. four sisters, and a brother. Moore began his judicial career as a judge Class of 1951 of the Mercer County Court, becoming a Class of 1968 Superior Court judge in 1980, and presid­ Jay Gore , 69, died September 4, 1995, in J. Michael Hardin , 51, died August 8, 1995, ing judge of the Civil Division in 1982 Grenada, Miss. Gore received his bache­ in Atlanta. He was an associate of Vaul­ until his retirement in 1986. Upon retir­ lor's degree from the University of Cas, Inc., an attorney, and a Marine vet­ ing from the bench, he returned to the Mississippi. He was a lieutenant in the eran of the Vietnam War. He is survived firm he helped found as of counsel until Navy Reserve from 1943-45. A member by his wife, Liz Hardin, a son, his parents, his retirement in 1994. of the Mississippi and the American Bar a sister, and a brother. Associations, he was a president and Class of 1947 member of the Grenada County Bar Class of 1975 Associationj member of the American James Tilghman Earle, Sr. , 71, who prac­ Judicature Society, Mississippi Defense John Robert Kernodle, Jr. , 50, a Greensboro ticed law in St. Petersburg, Fla., for more Lawyers Associationj and fellow of the community leader who led the Guilford than four decades, died August 27, 1994. Mississippi Bar Foundation. He was a County school system into a successful After doing his undergraduate work at prosecuting attorney for Grenada County, merger and chaired its board, died Washington and Lee and the University member of the Mississippi Judiciary October 25, 1995, in Atlanta. Kernodle, a of Texas, and receiving his law degree Selection Committee, and attorney for lawyer and an ordained minister in the from Duke, he joined a private firm in the Grenada County Board of Supervisors. United Church of Christ, received an St. Petersburg. Working with several He is survived by his wife, Mary Jane undergraduate degree from Duke, where firms during his career, he specialized in Daigre Gore, a daughter, a son, and grand­ he was an Angier B. Duke Scholar, workers' compensation cases. He was a children. and graduated from Andover Newton president of the Pinellas County Trial Theological Seminary in Boston. He was Lawyers Association and a member of in private practice in Greensboro for a the Florida Bar and the St. Petersburg Bar decade before becoming executive direc­ Association. He is survived by his wife, tor of the Community Justice Resource Barbara P. Earle, four sons, two daughters, Center and a lecturer in justice and poli­ a brother, a sister, and grandchildren. cy studies at Guilford College in 1987. He

70 • DUKE LAW MAGAZINE S P RING 9 6 Obituaries ,.".'WIIHMj

was an adjunct faculty member of Class of 1989 Class of 1998 the Wake Forest University School of Ralph Erich Jones died July 9, 1995. He was Jason lee Haight, Law, assistant to the dean and lecturer in private practice in New York City. He 22, first-year stu­ in education administration at UNC­ is survived by his partner, Daniel. He is dent, died August Greensboro, a law clerk for U.S. District remembered by classmate Leora Tee: 24, 1995 in Dur­ Court Judge Eugene Gordon, campus "I remember the first time I saw ham. Born and minister at Duke and Brandeis, and Ralph. It was at the picnic for the sum­ raised on a ranch prison chaplain at Walpole Prison in mer students in 1986. We started talking in Gillette, Wyo., Massachuetts. He is survived by his wife, and I glanced at his name tag: 'Ralph Haight was a Lynn Wright-Kernodle, a son, his parents, Jones-Columbia Bible College.' 'Ob, no,' National Merit and a sister. I sighed inwardly, 'Just my luck. ' I bare­ Scholar who ly listened as he spoke about his recent graduated from George Washington Class of 1979 experience in Japan, so eager was I to get University, where he was a Presidential Elizabeth Dunn away from this person with whom Iobvi­ Scholar in the Honors Program and White died April ously had nothing in common. earned a distinguished prize for his acad­ 4, 1995. The "Luckily, logistics forced us to spend emic accomplishments in international daughter of a mil­ a lot of time together. 1 quickly learned business. He represented GWU on its itary family, her that Ralph was far more complex and Intercollegiate Debate Team for four childhood years multi-faceted than 1 had imagined. 1 years, winning many awards, and was a spanned locations learned what a warm, funny, reliable, member of the Interfraternity Council. in Taiwan, Ger­ brilliant, and curious person Ralph was. He was pursuing the JD/LLM in compar­ many, Australia, "After taking the bar I led a group of ative and international law at Duke Law Texas, Florida, law students on a seminar to Israel dur­ School, where he was the Nixon Scholar and Maryland before she chose North ing which we met with government offi­ in his class, the distinction awarded Carolina as her home. She was a graduate cials and academics. Ralph was the only annually to an outstanding law student of the University of North Carolina, non-Jewish student on the trip. He also who shows promise in international where she was a member of Phi Beta was the one who asked the most insight­ affairs. Haight is survived by his parents. Kappa. She served as research assistant to ful questions. Following a memorial service at Duke the Honorable J. Franklin Parker on the "Over the last several years though I Chapel, a tree was planted on the Law N.C. Court of Appeals before entering pri­ saw Ralph every year when visiting from School grounds in Jason's memory. vate practice in Greensboro. She was a Israel, we hadn't kept in such close touch member of the American Bar Association, between visits. Still, I always knew that Greensboro Bar Association, and the N.C. Ralph would come through if I needed Bar Association. The Young Lawyers him. He will be sorely missed by me and Division has named the Justice Fund in my family and countless others who were memory of Betsy White. A Justice Fund fortunate to know him. " is a named endowment of at least $25,000 in memory or honor of a lawyer whose Leora Tee '89 career has demonstrated dedication to the pursuit of justice and outstanding service Class of 1992 to the profession and to the public. She is Karen Elizabeth Forehand Boychuk, 31, died survived by her husband, William Donald December 31, 1995. She was in solo pri­ White, two sons, and her parents. vate practice in Raleigh where she moved after a short time in private practice in New York. She is survived by her hus­ band, William Boychuk, and her parents.

A L UMN I N E WS DUKE LAW MAGAZINE . 71 ' , "lJm"~"'4j LAA News

The Duke Law Alumni Association Law Alumni Weekend Classes ending in 'I' and '6' returned (LAA), which includes all law alumni, The classes ending in '5' and 'a' celebrat­ on April 12-13 to celebrate their reunions sponsors programs designed to advance ed their reunions on October 12-13 for Law Alumni Weekend 1996, which legal education and to promote commu­ during Law Alumni Weekend 1995. was held in conjunction with the 1996 nication between alumni and the Law Members of the Half Century Club­ Barristers Weekend and featured a cele­ School. Following is a report on some of those who have celebrated the 50-year bration of professor Melvin Shimm's time these programs. anniversary of graduation-also attended. at the Law School from his arrival with Alumni and their families returned to the Class of 1956 through his retirement renew friendships with classmates and in the spring of 1996. This weekend Career Panels ties with faculty. marked a change from fall to spring dates Alumni returned to the Law School to The weekend began on Friday after­ for the annual Law Alumni Weekend. share career advice with students in a noon with a student/alumni luncheon, Photos and a full report on Law Alumni series of panels sponsored by the Offices sponsored by the LAA to provide career Weekend '96 will appear in the fall issue of External Relations and Career Services advice to students. Students were of Duke Law Magazine. The 1997 Law during spring semester. Panelists, who are matched with alumni who have special­ Alumni Weekend with reunions for the listed below, discussed legal careers in ty areas or who reside in areas that are of '2' and '7' classes will be April 4-5, 1997. public interest, government, internation­ particular interest to students. allaw, corporate practice and litigation The luncheon was held on the front practice. lawn of the Law School to accommodate Wheeler Receives Murphy Award Cindy Adcock '91 the large crowd and to take advantage of Douglas Wheeler '66, California's secretary Karen A. Aviles '84 beautiful weather. Over 125 alumni and of resources, received the Charles S. Gill Beck '85 students attended the luncheon, includ­ Murphy Award at the LAA October 12, Alexandra Allen Carr '86 ing members of the Law School's Board of 1995, all-alumni dinner. The LAA pre­ Roger M. Cook '84 Visitors and LAA Board of Directors. sents the award annually to an alumnus Christine Witcover Dean '71 Friday evening offered an all-alumni of the School who, through public service John S. DeGroote '90 reception and dinner, during which the and/or dedication to education, has Mary Woodbridge deVeer '85 LAA held its annual meeting and presen­ shown a devotion to the common welfare James Alec Gelin '87 tation of public service awards. On reflecting ideals exemplified in the life Peter S. Gilchrist, III '67 Saturday morning two programs were and career of Charles S. Murphy. Murphy Elizabeth A. Gustafson '86 attended by alumni, families, and facul­ was a 1931 graduate of Duke University, Mark Daryl Gustafson '86 ty. "Two Perspectives on the Death and a 1934 Duke Law School graduate. He Thomas A. Hanusik '90 Penalty" featured professor Phillip received an honorary LLD from Duke in Sharon Harrington '89 Cook from the Sanford Institute of 1967. During his career, he held several Cecily Hines '81 Public Policy Institute presenting" An positions in the Truman, Kennedy and Katherine S. Holliday '80 Examination of the Costs of Capital Johnson administrations including John Keller '87 Punishm en t in North Carolina," and pro­ serving as administrative assistant and Denise 1. Majette '79 fessor Robert P. Mosteller of the Law special counsel to President Truman, Jim Maxwell'66 School presenting "A Look at Post­ undersecretary of agriculture under Michelle Nowlin '92 Conviction Litigation in an Individual President Kennedy and counselor to Rick Robinson '92 Death Case." The second program, President Johnson. He also was a member Elizabeth Miller Roesel'87 "Should We Pay College Athletes of the Law School's Board of Visitors and Martin Schaefermier '90 (More)?" was moderated by professor the University Board of Trustees. John Stark '89 Paul Haagen, who has served on the The awards committee of the LAA Denise Thorpe '90 University's committee to advise student Board of Directors recommended that Gregory Wets tone '78 athletes, and featured former Duke Wheeler receive the Murphy Award basketball stars and Law School alumni, because "he has dedicated his career to Jay Bilas '92 and John Marin '80, Richard public service, particularly in the fight to W. Chryst '89 of the Atlantic Coast protect and improve the environment at Conference, Sonja Steptoe '85 from Sports Illustrated, and Paul Braithwaite '96.

72 • DUKE LAW MAGAZINE S P RING 96 LAANews , .i1"WIIMJUJ

In accepting the award, Wheeler noted civil litigation, municipal and school law to the audience, which included his son business law, and wills and trusts. H~ Duke law student Clay Wheeler '97, tha~ served in the Army Air Corps during public service is not only satisfying but World War II, earning the rank of major. also pleasurable. He encouraged all alum­ Former counsel to the City of Winston­ ni to become as involved in public service Salem and the local school board he pursuits as possible in a variety of ways. served as president of the Junior' Bar Association of Winston-Salem, Forsyth County Bar Association, and N.C. Bar Womble Receives Rhyne Award Association. His long-time involvement The LAA established the annual Charles with the American Bar Association S. Rhyne Award to honor alumni with includes current membership on the distinguished careers in private practice Standing Committee on Ethics and who have also made significant contribu­ Professional Responsibility and the Douglas Wheeler '66 received the 1995 tions pro bono publico in education Resource Development Council, and ear­ Charle s S. Murphy Award. professional affairs, public service 0; lier participation in the ABA House of community activities. The second Rhyne Delegates, the ABA Board of Governors Award was presented to William F. Womble and the National Conference of Ba; a time when this goal is reaching a criti· '39, Winston-Salem attorney, at the LAA cal point." Wheeler said that he came to all-alumni dinner during Law Alumni Duke Law School with "the idea of a career in government and public policy" Weekend, October 12, 1995. The award is named for Charles S. Rhyne '37, who has and found that "law school strengthened been an active trial lawyer in Washington the impetus to government service." Wheeler, who has been California secre· D.C. since 1937, representing chiefly states, cities, and counties in cases in fed­ tary of resources since 1991, stresses eral and state courts throughout the "cooperative problem solving" as the best United States, including serving as lead approach to enduring improvement. In a career devoted to public service in counsel in the " one man, one vote" case of Baker vs. Carr, 369 U.S. 226 (1962). both government and private organiza­ While actively engaged in the practice of tions, Wheeler's previous government law, Rhyne held offices in bar associa­ positions include deputy assistant secre­ tions at the local, national and world lev­ tary for Fish and Wildlife and Parks and els, including serving as president of the legislative counsel for the u.S. Depart­ American Bar Association. He also par­ William F. Womble '39 received the 1995 ment of the Interior. He served as vice ticipated in education, serving as visiting Charles S. Rhyne Award. president of the World Wildlife Fund and professor at a number of universities and The Conservation Foundation, as execu­ on the Board of Trustees of both Duke and tive vice president of the National Trust George Washington University. Rhyne Presidents. He received the N.C. Bar of Historic Preservation, and executive actively worked to expand the role of law Foundation's John J. Parker Award for director of the Sierra Club. He was found­ as a credible method of achieving world Service to the profession in 1984. ing president and first chief executive offi­ peace by serving in a number roles at the A member of the N.C. House of cer of the American Farmland Trust a highest levels of the federal government Representatives from 1953-58, Womble not-for-profit proponent of farmla~d and international organizations. also has held memberships on the N.C. retention and conservation of agricultur­ Womble, a recent recipient of the 50- General States Commission, N.C. Board al resources. He serves on the boards of Year Award of the Fellows of the of Higher Education, and N.C. Budget directors for the Resources Development American Bar Foundation, joined what is Commission. He has been a leader in fund Foundation, the Walkways Center and now Womble Carlyle Sandridge & Rice raising for numerous bar association caus­ the Wildlife Habitat Enhancement (presently over 180 lawyers strong with es, including the 1986-88 Founders Council, and received the Department of offices in Winston-Salem Charlotte Campaign that established a permanent the Interior Achievement Award for Raleigh, and Atlanta) follo.'ving gradua: endowment for the N.C. Bar Association. Outdoor Recreation in 1980. tion. He developed a practice in general

ALUMNI NEWS DUKE LAW MAGAZINE • 73 LAA president ValerieT. Broadie '79 1996 DUKE with president­ LAW SCHOOL elect Richard ALUMNI DIRECTORY Salem '72, and past president Keep up with your classmates Haley J. and other friends from Duke Fromholz '67. law School. Network with your Duke law School col­ leagues around the world.The law Alumni Association will publish an updated all-alumni directory with alphabetical, class, and geographic listings. He is an active member of the Centenary David L. Vaughan '71 , both of Washington, This will be the first directory United Methodist Church in Winston­ D.C. Bruce Baber '79 of Atlanta became Salem, and has served as county United the new secretary-treasurer of the LAA. printed since 1993 . Be sure Way chairman, Chamber of Commerce He will rotate through the officer ranks that the law School External president, Rotary Club president, and a to become president. trustee of High Point College. He also was During the LAA meeting on October Relations Office has your a founder and first president of the 12, 1995, president Valerie T. Broadie '79 current address information. Association for the Handicapped. thanked immediate past president Haley Our toll-free number is In recognizing him as this year's J. Fromholz '67 for his outstanding service, Rhyne Award recipient, the LAA Board and presented him with an engraved 1- 888-lAW-AlUM. noted, "Bill Womble is a perfect example gavel and stand to commemorate his of a lawyer who maintains the highest service as president for 1994-95. Fromholz standards of professional ability and was appointed to the California Superior integrity in establishing a distinguished Court, Los Angeles County in 1994. career in private practice, while also Before that he was a litigation partner at devoting himself to the improvement of Morrison Foerster's Los Angeles office. the legal community through service in He joined the LAA Board in 1989. He professional organizations." served on and chaired both standing com­ mittees (Awards and Nominations). Because of the by-laws revision in 1993, New LAA Members and he served an additional year as vice pres­ Officers Welcomed ident and therefore served as chair of the The Board of Directors welcomed the new standing committees for two years. While members recommended by its nominat­ secretary-treasurer he chaired the ad hoc ing committee at its fall meeting on committee to review the LAA Treasury October 13, 1995. The new members are: policies. He has chaired the education Sarah Adams '73 of Atlanta, Herbert O. Davi s committee for two years, and he served '60 of Greensboro, Willie O. Dixon '88 of on a committee to review the LAA Raleigh, Michael Dockterman '78 and matching program for the Student Funded Martin P. Marta '72, both of Chicago, Stuart Fellowship in 1993-94. Feiner '74 of Toronto, Sandra J. Galvis '92 of New York, William L. Riley '67 of San Francisco, Martin Schaefermeier '90 and

74 • DUKE LAW MAGAZINE SPRING 96 For more information about events at the Law School, consult our Web site at http://www.law.duke.edu.

Alumni Event in Durham Inn of Court

Alumni Event in Boston Alumni Conference in Brussels

Board of Visitors meeting, Alumni Weekend/Barrister Weekend Alumni Event in Columbia, S.C. Inn of Court Half Century and classes of 1946,1951,1956,1961,1966,1971, 1976,1981,1986,1991 Alumni Event in Myrtle Beach, S.C., Scholarship Luncheon N.C. Bar Association meeting

Conference:The United Nations, Regional Organizations and Military Operations Asia-America Institute in and Military Operations, Center on Law, Transnational Law begins in Hong Kong Ethics and National Security and Summer Institute in Law Alumni Association Board Transnational Law begins in Brussels of Directors Meeting All Alumni Reception and Dinner Alumni Event in Hong Kong AALS annual meeting in Washington, D.C. Barristers/Reunion/Mel Shimm with Law School reception Retirement Celebration

Alumni Event in London Inn of Court Conference:The United Nations, Regional Organizations and Military Operations, Center on Law, Alumni Event in Brussels Inn of Court Ethics and National Security Issues Forums: "Technology and the Law: Tomorrow is Today:' "Medical Malpractice Alumni Event in Frankfurt and the American Jury: Myth vs. Reality" Gender Law Conference Seminar on Alternative Careers International Conference: "Justice in Cataclysm: Criminal Tribunals in the Inn of Court Wake of Mass Violence in Brussels" Cummings Colloquium on Environmental Law, "Beyond the Balance of Nature" Alumni Weekend: ABA reception in Orlando 1947 and Half Century, 1952,1957,1962,1967,1972, Hooding Ceremony, Address by 1977,1982,1987,1992 Atlanta MayorWiliiam C. Campbell '77 Inn of Court

University Commencement Hooding Ceremony Board of Visitors meeting Law Alumni Association Alumni Event in Raleigh Board of Directors meeting Commencement Alumni Weekend Barristers Weekend