University President __ Law School, Board Of Trustees, Chair _, And Vice Chair Donald P

WIDENER UNIVERSITY SCHOOL OF LAW COMMENCEMENT CEREMONY

CLASS OF 2000

OUR CAUSE … THE LAW

ADDRESS BY: STEPHEN J. McEWEN, JR. PRESIDENT JUDGE SUPERIOR COURT OF PENNSYLVANIA MAY 21, 2000 HARRISBURG, PA -2-  UNIVERSITY PRESIDENT ROBERT J. BRUCE,

 VICE CHAIR DONALD P. WALSH,

 LAW SCHOOL DEAN DOUGLAS E. RAY,

 HARRISBURG CAMPUS DEAN LOREN D. PRESCOTT, JR.

 MEMBERS OF THE BOARD OF TRUSTEES AND

 FACULTY OF WIDENER LAW SCHOOL:

 ESTEEMED GRADUATES AND STUDENT BAR ASSOCIATION

PRESIDENT LORI HACKENBERG-BAILEY, AND CLASS

VALEDICTORIAN MAGGIE MARIANNE FINKELSTEIN

 YOUR FAMILIES AND FRIENDS:

 MY COLLEAGUE HONOREES:

While some might suggest that the joy and warmth attendant so auspicious and happy occasion as this Graduation Convocation might cause the sincerity of my opening remarks to suffer, may I assure you with the utmost sincerity that each of the Judges of the Superior Court of Pennsylvania are grateful for the honor which you confer upon them by selecting the President

Judge of their Court to deliver this address, and, as well, to receive an honorary degree – and so it is on behalf of all of my colleagues that I acknowledge the honor you confer upon our Court, while expressing, as well,

-1- their gratitude – and, of course, the deep, deep appreciation of the McEwen

Clan for this honor.

A few days ago, on May 1, the Court Houses throughout America reverberated with the celebration of Law Day and the featured speakers exhorted the citizenry to comply with the summons of Law Day – to

Celebrate Your Freedom. Surely, however, the contemplation of those freedoms requires a threshold focus upon that characteristic which has made our democracy the light of the world – I refer, of course, to The Rule of the

It was in 1986 that the United States Supreme Court in Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) decreed that equal protection principles prohibit a prospective juror from being peremptorily challenged on the basis of race. While that Supreme Court decision was a further beat upon the drum of equal justice for all, it was a

Pennsylvania Superior Court judge who, in addressing Batson, urged:

Equal justice for all is not simply an expression of boast, it must be,

as well, a declaration of goal.

[Commonwealth v. Jackson, 386 Pa.Super, 29, ___, 562 A.2d, 338, 359

(1989) (dissent), allo. denied, 525 Pa. 631, 578 A.2d 926 (1990).]

And so it is with the freedom which is the focus of Law Day, 2000:

-2- Celebrate we should, but pursue we must.

That pursuit, that march which enables us to today celebrate our freedoms commenced in earnest a century and a half ago in the bloody conflict of the

Civil War, and the march of freedom since that War has been forward and constant for there was never a period in this country when civil and individual rights were not the subject of debate and struggle.

It was Frederick Douglass who declared in 1857, on the eve of the Civil War, that:

The whole history of all the progress of human liberty shows that all

concessions yet made to her august claims, have been born of

earnest struggle …. If there is no struggle, there is no progress ….

This struggle may be a moral one, or it may be a physical one, and it

may be both moral and physical, but it must be a struggle. Power

concedes nothing without a demand. It never did and it never will.

[Remarks of Frederick Douglass on August 4, 1857, reprinted in 2

Philip S. Foner, The Life and Writings of Frederick Douglass 437

(1950), as quoted in Wapner v. Somers, 630 A.2d 885 (1993).]

It was with a brogue and within a decade and just across the county lines from this Capitol that this very message of Frederick Douglass inspired the

Molly Maguires to confront their oppressors in the coal regions of

Pennsylvania and thereby spark the organization of labor in this country and

-3- the effort of unions to carve out respect for the working man and to confront the barons of the Industrial Revolution who had so plundered the people that if their wealth were tea, they could have brewed the oceans.

And, of course, shortly thereafter the Suffragette Movement also took flight and attained the constitutional amendment (Article XIX) which extended the vote to women.

While through the first century after the Civil War, the changes and improvements were principally effected by legislative initiative, if one were to select a particular component of the vast change to which the latter half of the 20th Century has been witness, surely that component would be the enormously enhanced awareness of the worth and stature and dignity of the individual – an enhancement inspired principally by judicial initiative. We refer to such events as:

Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686 (1954),

in which the USSC removed the final vestige of servitude from

children.

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 (1963),

[Escobedo (1964) and Miranda (1966)], which commenced the

enforcement of centuries-delayed due process in the criminal courts.

The Pennsylvania Supreme Court heard the same drum beat as the United

States Supreme Court, for during the recent decades it has made the civil

-4- courtroom the scene of judicial enlightenment when it, inter alia:

 imposed strict liability in tort against the manufacturer,

 removed the requirement of privity in breach of warranty suits

against a remote manufacturer, and

 abolished the doctrines of both governmental and sovereign

immunity.

There is a jurisprudential school which urges the judiciary to be slow to engage in sweeping change and to be sensitive to the virtues of synthesis.

Well, happily, the United States Supreme Court and the Pennsylvania

Supreme Court both rejected that counsel and instead not only became clarion courts, but did so in such clear and certain terms that it was the judiciary which defined the legislative debate and dominated the statutory decrees. As a result, we have even come to see the imposition of an “equal access” to the civil courts which freed the less fortunate from the intimidation that they could not fight City Hall, and now enables them to not only sue City Hall but also to recover.

It is to be quickly emphasized, of course, that the judiciary was able to trigger such momentous change only because of the efficacy of the advocacy system. In fact, I have long been of an uncertainty as to whether scholars of our justice system accord sufficient credit to the adversarial aspect of our

-5- advocacy system, because:

 Certainly the adversarial relationship between government and

the private sector has reduced the otherwise dominant role that

government would play.

 Moreover, the interplay between claimants advocates and their

adversaries enhances the efficacy of the private sector,

 And, just as surely as the dominance of government prosecutors

is not always matched by the justness of their cause, the only

factor balancing the abundant resources of the prosecution is the

devotion and skill of counsel for the accused.

Implicit in these thoughts is the notion that the efficacy of the adversary system is due specifically to the commendable intensity of effort provided by the individuals who serve as advocates. Thus it follows that the success of the advocacy system is really the achievement of the lawyers who have through the decades of the past two centuries devoted their minds and skills and instincts – in effect, their lives – to the cause of justice.

You, as advocates of the 21st Century, are certain to encounter challenges and to confront demands posed by a technology of such speed that each day is a New Age, by an artificial intelligence uninhibited by intuition or

-6- conscience, and by such biogenetic engineering as appears to defy even

Heaven.

Our concern for the future must not, however, exceed our confidence that mankind through reliance upon the law will prevail, a notion so aptly expressed by scientist/philosopher Freeman J. Dyson in his mighty work,

Disturbing the Universe, (Harper & Row 1979) at p. 172:

Man cannot play God and still stay sane. And the progress of biology

is inescapably placing in man’s hands the power to play God. But

from these two facts it does not follow that there is no hope for us.

We still can choose to be masters of our fate. To deny to any man

the power to play God, it is not necessary to forbid him to experiment

and explore. It is necessary only to make strict laws placing the

applications of his knowledge under public control.

History records that such demands upon and challenges to the efficacy of the law have been as constant and relentless as the law has been impervious and triumphant. The law as foundation will continue to endure and prevail only, of course, if you, the lawyers of the 21st Century, are individuals of undiminished vigor and enthusiasm and passion, and advocates of exceptional intellect, industry, and integrity, who remain ever true to the tradition and precepts of the moral code.

May I tell you that as, in your new role of advocate, you become more

-7- seasoned, you will realize that, while success is in the achievement, fulfillment is in the effort[,].

And, if such be the lesson of the seasoned lawyer, it is the veteran advocate who most fully understands that the lawyer who fervently and intensely serves the cause of client, despite difficulties and obstacles, is assured of far more than fulfillment in professional life, because serving intensely during career years insures against retirement reflection regret – for, as John

Mortimer, the creator of Rumpole of Old Bailey, suggests: The anguish of declining years is not so much of what we have ceased to be as of what we could have been.

So, my distinguished graduates of the Widener University School of Law, the advocates upon whom the Rule of Law will henceforth rely, before bidding you adieu, may I echo in fervor a Latin imperative: fideles simus in conatu … which is really the entreaty of a scarred courtroom warrior, at both Bar and

Bench, urging you to: Be Loyal in the Struggle … What struggle? … The struggle for the cause … What cause? … A constantly changing cause …, the cause of justice … the cause of freedom.

I now bid you adieu and in doing so may I:

Thank the Board of Trustees for the insightful leadership that has

enabled the Widener University School of Law to achieve,

-8- Congratulate the graduates, each and all, upon the successful

completion of your arduous course of study,

Salute your loved ones for their encouragement in your effort, and

Pronounce my sincere hope that your success will be equal to my

fervent wishes.

May God bless you.

-9- SAVE: TEXT vs. TIME

When Board of Trustees Vice Chair Don Walsh invited me to participate in the grand ceremony of this afternoon, I was absolutely delighted, and, as you will observe, the glow of delight remains – as does my early concern about this address, a concern I quickly expressed to Vice Chair Walsh when I told him:

Don, for a couple of decades I delivered political speeches, and for

the past two decades, I have been lecturing to lawyers who for

obvious reasons always seem to nod in agreement, and so I am

concerned about my qualifications to address an academic assembly

of learned graduates, bright with the knowledge of the law attained

from years of study and association with professors who are

acclaimed jurisprudential scholars.

Don, would The Defense of Justification be a suitable subject,

because I can go on for an hour about that.

Don did not respond – he just gave me a funny look.

So, there is good news and there is good news. The good news is that my remarks will not be about The Defense of Justification. The other good news is that I will not be going on for an hour – rather, 14 minutes should about do it.

-10- Page 3:

Initially, however, it seems appropriate to address the concern of the

American people who lament that it makes no difference who is the

President – or which party controls the House of Representatives and the

Senate. They so conclude because recent Presidents have abdicated for the hand of the affluent and their multinational corporations, and because the

House and the Senate has each delivered its sword to the PACs. It is to be emphasized that political scientists and governmental scholars, while sharing the concern of the American people, do not fault the system, since they quickly declare that the magnificent triumph which is our Constitution is still the brightest design for government in the history of man. Rather, they assert, the abdication and surrender of the executive and the legislative branches is the fault of many of the individuals who have been elected.

Significantly for us in the legal profession, these governmental scientists take solace in the performance of the judicial branch for only the courts have remained impervious to the vested interests whose seductive blandishments reveal not simply self interest but unholy greed.

That lament, however valid and real and perniciously destructive of our system, must not be permitted to obscure the fact that our peacetime history has always presented problems and challenges and obstacles which had to be addressed, resolved, and corrected. But such challenges and

-11- obstacles in our history have always been viewed as opportunities, because a distinctive, even compulsive, national characteristic is the constant and unceasing effort to enhance, and to improve and to progress.

Thus, we may not doubt that the perceived For Lease or Purchase signs on government offices, which today inspire deep concern for survival of the

Republic, will in a few years be a chapter of past history – and so, certain it is that we can today safely Celebrate Our Freedoms.

[fulfillment is in the effort] a notion most adequately expressed by The

Grand Chancellor of All England Sir Thomas More – Saint Thomas More, if you will permit – in his Utopia:

You must not forsake the ship in a tempest because you can not rule

and keep down the winds … but you must with a crafty wile and a

subtle train endeavor yourself as much as in you lies to handle the

matter wittily and handsomely with a purpose, and that which you

cannot turn to good so to order that it cannot be very bad.

University President ______ Law School, Board Of Trustees, Chair _____, And Vice Chair Donald P

University President __ Law School, Board Of Trustees, Chair _, And Vice Chair Donald P