DukeLawAiaga.~~~in~e~ ______DEAN EDITOR ASSOCIATE EDITOR DESIGN CONSULTATION Pamda B. Gann Evelyn M. Pursley Janse Conover Haywood Azalea Graphics

CONTENTS

From the Dean ......

FORUM Prior Similar Acts in Prosecutions for Rape and Child Sex Abuse Sara Sun Beale...... 4

Contesting the Fiducial Line: Legal Theory and the Duty to Be Loyal Deborah A. DeMott...... 10

ABOUT THE SCHOOL Teaching Trial Skills ...... 17

Public Interest Thriving at the Law SchooL ...... 20

New Research and Writing Program ...... 24

SuccessfUl Training Program for Taiwanese Judges ...... 26

Changes in Career Services Office ...... 27

Fourth Annual Siegel Competition ...... 28

THE DOCKET Alumnus Profile: William H. Grigg '58 Right Man for the Right Time ...... 30

Alumnus Profile: Paul S. Nathanson '67 Master of Chaos ...... 32

Faculty Profile: William W Van Alstyne Teaching the Constitution ...... 34

Faculty News ...... 37

Law Alumni Association News ...... 39

Specially Noted...... 43

Alumni Activities ...... 45 About the Cover The cover fearures a phomgraph Obituaries ...... 59 of a piece fmm the Law School's collection of legal art. It reproduces a painting by W Dendy Sadler entitled "A Breach of Promise.» The painting was published by Catalda Duke lAw Magazine is published under the auspices Fine Arts Inc. of New York City. of the Office of the Dean. Duke University School of Law, and the copy phomgraph was taken by Dan Crawford of Chapel Hill. Durham. North Carolina 27708 © Duke University 1994. VOLUME 12, NO.2

From the Dean

want to highlight a few important July 1, 1994, as an associate professor Law School developments during of law. She is a Phi Beta Kappa gradu­ I the last few months. ate of Harvard College and a graduate of the Harvard Law School where she Death of A. Kenneth Pye was the executive editor of the Harvard The death of A. Kenneth Pye on Law Review. After clerking for Chief July 11, 1994, came as a great loss to Judge Patricia M. Wald of the U.S. many of us who knew him as a teacher, Court of Appeals for the D.C. Circuit, colleague, dean of the Law School, and she worked for a large firm in New chancellor of Duke University. I recall York City, where she specialized in him as a reacher of criminal procedure international business transactions. in my firsr year of Law School. He was Professor Chua will teach in the field the consummate lecturer, saying that of private international law, including "we could learn how to brief and ana­ international business transactions lyze cases from Professor Sparks." He and securities law and also in the first­ was surpassed by almost no one in his year course in contracts. Her research command of facts and his preparation New professor, Amy L Chua includes an analysis of the privatiza­ for any occasion. He believed in a lean tion-nationalization cycle in developing administration for the Law School, orary society of national scholars and countries and her law firm experience pardy because he could and would do leaders. Professor Katharine T. Bartlett includes the privatization of large gov­ everything, from presiding, to teaching, has been appointed by the American ernment-owned corporations. Professor and responding to anyone in the Law Law Institute as co-reporter for the Chua's international teaching interests School community who sought him Principles of the Law of Family Disso­ will complement the curricula taught out. My colleague, Professor George lution because of her substantial reputa­ by Professor Benedict Kingsbuty (pub­ Christie, recalls that "Ken Pye was an tion in family law, and especially her lic international law), Professors Her­ impressive man. He was a born leader expertise in the area of child custody. bert Bernstein and Donald Horowitz who was able to deal with difficult situ­ The University Provost has named (comparative law), and me (private ations without flinching. Perhaps his Professor Donald L. Horowitz to a international law), creating a group greatest single strength was his intellec­ James B. Duke tual honesty. He abhorred fake senti­ Chaired Professorship. mentality. Ken was a good and dear He previously held friend. He will be sorely missed." My the Law School's colleague, Professor Walter Dellinger, Charles S. Murphy spoke at the A. Kenneth Pye Memorial Chaired Professorship. Service held at Duke Chapel, and the This lateral switch to editors have included his apt remarks the University-wide later in this issue at page 64. James B. Duke Chair was made in recog­ Faculty Recognitions and nition of his special New Appointments accomplishments as a I am pleased to recognize the scholar in such fields recent accomplishments of some of as ethnic relations and our faculty. Professor William W Van democratization and Alstyne, the Perkins Professor of Law, ethnic violence. has been named to the American Aca­ Amy L. Chua The courtyard between the existing building and the new addition nears completion. demy of Arts and Sciences, an hon- joined our faculty on 2 DUKE LAW MAGAZINE / SUMME R 1994

of faculty within the Law School to provide studenrs a comprehensive set of offerings in the inrerna­ tional and comparative law areas. Professor Chua will also complemenr Profes­ sors Lawrence Baxter, James Cox, and Deborah r DeMott in the business curriculum, both domesti­ cally and inrernationally.

Construction Progress Occupancy of the new Phase II building occurred at the end of July, which involved moving all of the faculty and administrative staff in the Law School. The renovation portion of Work con tinues on the new entra nce to the Law Schoo l. Phase II also began in July, which involves appropriately inrercon­ many more capacities in behalf of the in the 1992-93 and 1993-94 academic necting the old and the new buildings, Law School and Duke University more years. Dave has been unstinring in his particularly the old and new portions generally, both here in Durham and in involvemenr in the Law School. He of the library and all of the Law School California. has inrerviewed and recruited studenrs corridors. The renovation also creates Presidenr Nannerl Keohane has from various colleges and universities; new space for the library staff, studenr appoinred Lanty L. Smith '67, to suc­ he has previously been president of the work and study rooms in the library, ceed Bob as the new chair of the Board local alumni association in Pittsburgh; and a renovated studenr lounge. of Visitors. After being a corporate he has served on alumni panels; and partner with Jones Day Reavis & he has provided the Law Alumni Asso­ Alumni leadership Pogue in Cleveland, Lanty returned to ciation with an expanded agenda of I wanr to extend a warm, personal North Carolina, where he was general services to both alumni and students note of gratitude ro Robert K. Monr­ counsel and later presidenr of Burling­ while he has been president. gomery '64, who has served 11 years, ton Industries, Inc. He is presently the Haley Fromholz '67 succeeded beginning in 1983, as a member of CEO of Precision Fabrics Group, Inc., Dave Klaber as the new president of the Board ofVisirors and as the Board's headquartered in Greensboro, North the Law Alumni Association on July 1, chair for the last six years. Bob is an Carolina. Neither Lanty nor his family 1994. He is a litigation partner in the exemplary model of the best of the are strangers to Duke. His wife, Mar­ Los Angeles office of Morrison & Duke Law School. He is a fine profes­ garet Chandler Smith is a graduate of Foerster. He brings to the president's sional person as a partner in Gibson, Trinity College and also has a Ph.D. position many years of experience in Dunn and Crutcher in Los Angeles, from Duke University, and they are the alumni affairs and development activi­ and he has provided extraordinary parenrs of a rising senior at Trinity Col­ ties for the Law Scchool. leadership to his local community in lege. Lanty previously served a term on Working collaboratively with our Los Angeles, particularly for the 1984 the Law School's Board of Visitors, and fine alumni is the greatest pleasure of Olympic Games. He has mainrained a he responded enrhusiastically to the my job. I am very grateful to these and special loyalty to the Law School, while invitation to become the chair of the other alumni who maintain such an also being a tireless advocate for bring­ Board. I very much look forward to extraordinary interest in the success ing together all the various parts of working with him in his new leader­ and well-being of Duke. Duke University inro a cohesive and ship capacity. workable partnership. I look forward David G. Klaber '69 was presidenr Pamela B. Gann, Dean to working with Bob in the future in of the Law School Alumni Association THE FORUM 4 DUKE LAW MAGAZINE / SUMMER /994

Prior Similar Acts in Prosecutions for Rape and Child Sex Abuse Sara Sun Beale

ongress now has before it a proposal co change me arrived at the Kennedy estate, Smith suddenly disrobed, grabbed evidentiary rules governing the admissibility of evidence her when she tried to run away, and raped her on the beach. Smim Cconcerning prior similar .acts by a person being prosecuted conceded mat intercourse had occurred bur contended that it had for rape or child sex abuse. Though the crime bill passed by the been consensual. The jury acquitted Smith. The jurors were not Senate incorporates such a provision, I it is uncenain at this writing permitted co hear me testimony of three orner women who came whether it will survive the conference process and become law. If forward before trial and offered co testify co sim ilar experiences 3 it is not enacted by this Congress, the issue seems likely co remain with Smith. Each of me three women claimed that, after initially on the legislative agenda. 1 acting in a friendly and nonthreatening manner, Smith had sud­ 4 If enacted, this legislation will amend the Federal Rules of denly undergone a frightening transformation and assaulted her. Jr Evidence co add new rules authorizing the admission of acts of a seems obvious that the result in the Smith prosecution might have similar character in a prosecution for either rape or child sex abuse. been different if the proposed amendment had been in effect and Although relatively few rape and child sex abuse cases are prose­ the jury had heard the testimony of the orner women. cuted in the federal couns, this proposal is significant because most This anicle will review the current law in me United States states now base their own rules of evidence on the Federal Rules. regarding the admissibility of prior similar acts in prosecutions for The highly publicized acquaintance rape prosecution of rape and child sex abuse and evaluate the arguments for and William Kennedy Smith demonstrated the powerful effect that the against enacting the proposed amendments. proposed amendment might have. The complainant in the Smith case testified mat she met Smim in a bar and agreed co accompany The Current Law him co me place where he was staying. She alleged that when they All U.S. jurisdictions now place significant restrictions on me admission of evidence concerning prior wrongs and crimes com­ mitted by the defendant. There is general agreement that prior acts should not be admitted to prove propensity, and also general agree­ ment on a number of purposes for which prior acts may be admit­ ted, including proof of intent, knowledge, motive, plan, and absence of mistake or accident.' Rule 404(b) of the Federal Rules of Evidence is in force in the federal courtS, and it has served as the model for me rules now in effect in more than half of the states. This rule provides:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order co show that he acted in conformity there­ with. It may, however, be admissible for other purposes, such as proof of motive, opporrunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

I ViolelH Crime Control and Law Enforcement Act of 1993, H.R. 3355, § 831, 103rd Cong., 1st Sess., 139 Congo Rec. 16288 (daily ed. Nov. 24,1993). The text of this provision is set OUt in the box on page 5.

2 An amendment of this nature was first introduced by the Bush administration in 1991 , and has been reintroduced in numerous later bills in both the House and the Senate. See Comprehensive Violent Crime Control Act of 1991, S. 635, 102nd Cong., 1st Sess. § 80 I (1991), 137 Cong. Rec. S3192 (daily ed. Mar. 13, 1991). \ Although no published opinion is available, contemporary press reportS state that the judge ruled "their testimony would prejudice the jury against Mr. Smith" and Sara Sun Beale is Professor of Law, Duke University. She joined the Duke "[tl hat concern outweighed their testimony's value as showing a pattern ofbehav­ ior" on the defendant's parr. Michael Hedges, Other Women Paint Smith tIS Violent, Law faculty in 1979, affer three years at the Department of Justice. Her prin­ "Not Too Bright, "Wash. Times, Dec. 7, 1991 , at A4. 4 One of the women would have testified that Smith raped her, and the other twO cipal academic interests are in the field of criminal law and procedure. would have testified that they prevented attempted rapes. ld. One of the women, An earlier version of this article was presented at a conference on now a doctor, would have testified that Smith assaulted her in 1988 when she was a medical student, suddenly taking off his clothes after a casual conversation near a Reform of Evidence Law held by the Society for Reform of the Criminal Law pool, acting as if this were normal behavior. Id This was the closest parallel to the Florida victim's version of the events. in Vancouver, British Columbia, Canada, August 3-7, 1992; this earlier , Jurisdictions do differ, however, on the question whether the generally recognized version was published at 4 CRiM. L. F 307 (1993). categories are exhaustive or merely illustrative. VOLUME 12. NO.2 5

Proposed Changes to the Federal Rules of Evidence

Rule 413. Evidence of Similar Crimes (2) contact, without consent, be­ mony that is expected to be offered, at (6) an attempt or conspiracy to in Sexual Assault Cases tween any part of the defendant's body or least fifteen days before the scheduled engage in conduct described in para­ (a) In a criminal case in which the any object and the genitals or anus of date of trial or at such later time as the court graphs (1)-(5). defendant is accused of an offense of sex­ another person; may allow for good cause. ual assault. evidence of the defendant·s (3) contact, without consent, be­ (c) This rule shall not be construed to Rule 415. Evidence of Similar Acts commission of another offense or offenses tween the genitals or anus of the defendant limit the admission or consideration of evi­ in Civil Cases Concerning Sexual of sexual assault is admissible. and may be and any part of another person's body; dence under any other rule. Assault or Child Molestation considered for its bearing on any matter to (4) deriving sexual pleasure or (d) For purposes of this rule and Rule (a) In a civil case in which a claim for which it is relevant. gratification from the infliction of death, 415. "child" means a person below the age damages or other relief is predicated on a (b) In a case in which the Government bodily injury, or physical pain on another of fourteen. and "offense of child molesta­ party's alleged commission of conduct con­ intends to offer evidence under this rule. person; or tion" means a crime under Federal law or stituting an offense of sexual assault or the attorney for the-Government shall dis­ (5) an attempt or conspiracy to the law of a State (as defined in section child molestation, evidence of that party's close the evidence to the defendant. engage in conduct described in para­ 513 of Title 1B, United States Code) that commission of another offense or offenses including statements of witnesses or a graphs (1)-(4). involved- of sexual assault or child molestation is summary of the substance of any testi­ (1) any conduct proscribed by admissible and may be considered as pro­ mony that is expected to be offered. at Rule 414. Evidence of Similar Crimes chapter 109A of Title 1B , United States vided in Rule 413 and Rule 414 of these least fifteen days before the scheduled in Child Molestation Cases Code. that was committed in relation to a rules. date of trial or at such later time as the court (a) In a criminal case in which the child; (b) A party who intends to offer evi­ may allow for good cause. defendant is accused of an offense of child (2) any conduct proscribed by dence under this rule shall disclose the evi­ (c) This rule shall not be construed to molestation, evidence of the defendant's chapter 110 of Title 1B, United States dence to the party against whom it will be limit the admission or consideration of evi­ commission of another offense or offenses Code; offered, including statements of witnesses dence under any other rule. of child molestation is admissible, and may (3) contact between any part of or a summary of the substance of any tes­ (d) For purposes of this rule and Rule be considered for its bearing on any mat­ the defendant's body or an object and the timony that is expected to be offered, at 415. "offense of sexual assault" means a ter to which it is relevant. genitals or anus of a child; least fifteen days before the scheduled crime under Federal law or the law of a (b) In a case in which the Government (4) contact between the genitals date of trial or at such later time as the court State (as defined in section 513 of Title 1B, intends to offer evidence under this rule, or anus of the defendant and any part of may allow for good cause. United States Code) that involved- the attorney for the Government shall dis­ the body of a child; (c) This rule shall not be construed to (1) any conduct proscribed by close the evidence to the defendant, (5) deriving sexual pleasure or limit the admission or consideration of evi­ chapter 109A of Title 1B, United States including statements of witnesses or a gratification from the infliction of death, dence under any other rule. Code; summary of the substance of any testi- bcdily injury, or physical pain on a child; or

Although some states have developed special rules, most U.S. plan.? The complainant testified that she met the defendant while jurisdictions purport to apply the general rule described above ro she was working as a waitress and agreed ro give him a ride home rape and child sex prosecutions. A close examination of the cases after her shift. She testified that once he was in her van, the defen­ reveals that the jurisdictions lacking special rules actually fall into dant grabbed her neck with both hands and pressed his thumbs on two quite different camps. Courts in the first group of states apply her windpipe, pulled her hair, and forcibly had oral and vaginal the general rule regarding prior acts with the same rigor in rape intercourse. He also rold her he would have an alibi if she went ro and child sex prosecutions as in other types of cases, and not infre­ the police and that his name was Mike. Two other women testified quently they exclude prior convictions and uncharged conduct of a ro similar experiences. The first witness was also a waitress who met similar nature. Courts in the other camp, in contrast, also purport the defendant at work; she, roo, claimed that he raped her in her ro apply the general rule in prosecutions of this nature, but the rule car at the end of her shift. The second witness testified that the operates quite differently in practice. In these jurisdictions the pur­ defendant picked her up while she was hitchhiking, pressed his poses for which prior acts may be admitted-particularly, intent thumbs on her windpipe, grabbed her hair, and forced her ro have and plan-are construed so broadly in rape and child sex abuse oral and vaginal intercourse. He rold this victim that his name was prosecutions that virtually any similar act is admissible. In effect, Mike and that his friends would give him an alibi. courrs in these jurisdictions allow proof of prior acts to show The California Supreme Court held that the evidence from propensity if there is the thinnest pretext of some other purpose for these two women should not have been admitted ro prove a com­ the evidence. G mon plan because the latter is only a "subordinate objective of A brief description of a few cases will demonstrate the wide proof, whose relevance depends upon the presence of some other disparity between these approaches. A California decision illus­ actual issue, such as identity or innocent intent. ,,8 In the case trates how the rigorous application of traditional evidentiary rules before it, the court concluded there was no issue of identity, since can bar evidence of similar acts that would corroborate the com­ the defendant admitted the intercourse. Nor was there any issue plainant's testimony. In People v. Tassell, the state supreme court of "equivocal or ambiguous" intent, since neither the prosecution held that it was error ro admit evidence of two earlier uncharged nor the defense claimed that the defendant mistakenly believed sexual assaults that were introduced to show a common design or that the complainant was consenting.') In light of those circum­ stances, the court concluded that the common plan rationale was "merely a euphemism for 'disposition,'" and it should not have

(, The court candidly recognized this point in State v. Kitson, 817 S.W2d 594, 598 (Mo. Ct. App. 1991) (citations omitted): - 679 P.2d I (Cal. 1984). Although this concept, labeled the "depraved sexual instinct doctrine" by the , Id at 4 (quoting People v. Covert, 57 Cal. Rptr. 220, 222 (Ct. App. 1967)). Court in Taylor, has been rejected in name, it has been adopted in fact. The 'J Id at 7 n.7. Justice Reynoso dissented on this point. arguing that intent was at evidence of sexual misconduct rejected under this concept is simply admitted issue since the defendant claimed that he had intended consensual intercourse, and under the strained and questionable guise of one of the well established excep­ the prosecution contended that he had intended intercourse by force or threats. tions to the rule prohibiting the use of sexual misconduct to attack character. Id at 10, 11. 6 DUKE LAW MAGAZINE / SUMMER 1994

been admined. 'o In California and other jurisdictions following this rule is now uncertain in many jurisdictions. The special excep­ a similar approach, prior acts are admissible only if the prosecutor tion came under fire in the 1960s, and courts in several states can make a convincing showing that the evidence is relevant to responded by eliminating the rule or imposing limitations. '9 The some contested issue other than a predisposition to commit rape introduction of new state evidence codes modeled on the Federal or acts of child sex abuse. I I Rules casts further doubt on the survival of a special rule for prior In contrast, other jurisdictions that purpon to follow the same sex crimes, since Rule 404 does nor recognize any exemption of evidentiary rules achieve quite different results. For example, in this nature. The state coum are divided on the question of whether United States v. Peden, a prosecution for rape and sexual abuse of a special state rules should survive the adoption of provisions mod­ minor, the coun upheld the admission of a prior conviction result­ eled on Federal Rule 404(b).20 ing from the defendant's fondling of another child. '2 Nthough the defendant admitted to having had intercourse with the victim, the The Proposed Amendments court concluded that his prior conviction was admissible to show The Senate crime bill would add fWo new provisions to the his "intent to take advantage of one incapable of resisting or unable Federal Rules of Evidence. 21 Proposed Rule 413 would provide: to appreciate the act, as well as his knowledge that young children are easily victimized."'3 Similarly, in a prosecution for sexual (a) In a criminal case in which the defendant is accused molestation of a 15-year-old girl, the Iowa Supreme Court upheld of an offense of sexual assault, evidence of the defendant's the admission of prior conduct with other victims on the ground commission of another offense or offenses of sexual assault is that this conduct showed the motive of "desire to gratifY his lustful admissible, and may be considered for its bearing on any mat­ desire by grabbing or fondling young girlS."'4 It seems clear that ter to which it is relevant. the California Supreme Court would find the evidence in the Paragraph (d) of this rule defines offenses of sexual assault broadly claims of motive or intent in these cases to be merely a euphemism to include both state and federal offenses involving rape or other for propensity or disposition. forms of sexual assault. Proposed Rule 414 sets out in paragraph A third group of states takes a more forthright position and (a) a parallel rule of admissibility for evidence of "another offense recognizes that prosecutions for rape and child sex abuse justifY a or offenses of child molestation" offered at a erial for child molesta­ special rule permitting the introduction of prior similar acts by the tion. Rule 414(d) defines a child as a person under the age of 14, defendant. As one commentator has stated, in these jurisdictions and it defmes offenses of child molestation to include state, as well "intellectual honesty triumphed, and the coum eventually as federal, offenses of child sex abuse. Paragraph (b) of both rules acknowledged that they were recognizing a special exception to the requires that the defendant be given pretrial notice of the prior acts norm prohibiting the use of the defendant's disposition as circum­ to be offered so that he or she have a fair opporrunity to stantial proof of conducr."'5 Originally this exception was limited will respond. to prior acts involving the same victim and to conduct deemed The legislative history indicates that evidence admitted under abnormal and deviant, such as incest and child molestation, and it this rule did not include heterosexual rape. 16 Gradually, however, the excep­ tion expanded, first to deviant acts involving third parties and then could be considered as evidence that the defendant has the to rape, as well as deviant conducr. ' 7 motivation or disposition to commit sexual assaults, and a At one time at least 20 states probably followed this third lack of effective inhibitions against acting on such impulses, position, recognizing a special rule allowing the admission of prior and as evidence bearing on the probability or improbability acts in prosecutions for rape and child sex abuse,'8 but the status of that the defendant was falsely implicated in the offense of which he is presently accused. 22 10 /d at 8.

II Another good example of this approach is State v. Hansen, 608 P.2d· 1083 (Mont. I ') Imwinkelried, supra note 15, §§ 4: 16-4: 17 (New York courts tightened standards 1980). The State supreme Court reversed the defendant's conviction for rape without explicit overruling; Arizona imposed procedural limitations). Scholarly because of the il1troduction of evidence of an earlier uncharged rape. There were critiques of the special rule are collected in § 4: 16 nn. 6-12. numerous similarities between the victims' accounts of the twO attacks. Both vic­ id tims testified that they len a bar with the defendant in the early morning hours, 10 Compare State v. McKay, 787 P.2d 479 (Or. 1990) (holding evidence of prior acts that he drove them up into the mountains. that he grabbed them and twisted admissible ro prove exual predisposition for this victim), and State v. Edward their thumbs against their wrists, and that he forced them ro have intercourse. Charles L. , 398 S.E.2d 123 (W. Va. 1990) (holding that prior acts of child sexual The court held that the admission of the uncharged rape was improper because it assault and abuse with same or different victims may be introduced to show lust­ was nOt sufficiently contemporaneous and not sufficiently similar to the charged ful disposition roward particular child or children in general), with Gerz v. State, rape, and did not demonstrate a common scheme or plan. The court identified 538 A.2d 726 (Del. 1988) (holding sexual propensity exception inconsistent with several differences between the two attacks and also suggested that sexual actS Del. Rule Evid. 404(b)); see also Hulton, supra note 18, at 614-15 & nn.52-54 originating in barroom pickups are so common that they have little value in (noting prevailing view that the sexual propensity exception did not survive the establishing a common scheme or plan. Finally, the court concluded that any pro­ adoption of Rule 404(b), but Asizona and Nebraska have taken a contrary posi­ bative value the evidence might have was outweighed by its prejudicial impact. tion and Iowa has vacillated). 12 961 F.2d 517 (5th Cit. 1992). " Set supra nOtes 1-2. As noted earlier, the various proposals ro amend the Federal Rules are virtually identical. The recommended changes are set OUt in the appen­ " Id at 520. dix ro this article. 14 State v. Schlack, III N.W.2d 289, 291 (Iowa 1961). n 137 Congo Rec. S3239 (daily ed. Mar. 13, 1991). This passage is taken nom " Edward Imwinkelried, Unchargtd Misconduct Evia'enct § 4: 14, at 37 (1991). J. the commentary explaining the legislation proposed by the Bush administration. Ie, !d. at 36-37. Since the current porposal is modeled on the Bush administration bill, I refer ro I' !d. §§4:14-4:15. this Bush administration commentary throughout as the legislative hisrory of the " Set Chris Hutton, Commentary: Prior Bad Acts Evitknct in Cases ofSexual Contact proposal. It should be noted, however, that if this provision is enacted the legis­ with a Child, 34 S.D. L REV. 604, 614 n.47 (J 989) (approximately 20 states had lative hisrory will be supplemented by materials explaining the intention of the or have such an exception). current Congress. VOLUME 12, NO.2 7

The Rationale for the Exclusion of Prior Acts simplifY and judge others on the basis of some outstanding good or Despite scholarly macks on the rraditional rule barring evi­ bad quality. 29 In addition, psychologists have identified other fac­ dence of prior acts ro prove the defendant's character or propensity, rors that tend ro prejudice jurors against a defendant if prior bad and hence actions in conformiry therewith,23 the general prohibi­ acts are introduced. First, there is evidence that people tend ro give tion on character evidence remains firmly rooted in U.S. law?4 greater weight ro negative or derogarory information about others There are three main reasons given for excluding evidence of prior than they do ro positive information of equal intensity.30 People acts ro show propensity and conduct in conformity: irrelevance, also overestimate the predictive value of data by making predic­ prejudice, and procedural efficiency and fairness. In the past 10 tions based upon very small samples that statisticians would con­ 3 years, the scholarly debate has included not only the traditional sider inadequate. ! Unfortunately, the inaccurate perceptions that arguments that shaped the common law but also insights gleaned resulr are difficulr ro shake, for people tend ro interpret all subse­ from modern psychological research. quent data so as ro maintain their initial belief32 Some authorities take the position that character evidence Finally, the introduction of past acts ro show character and based upon prior acts is simply irrelevant ro the issue of conduct ulrimately action in conformity raises procedural concerns. The on another occasion: introduction of evidence about events other than those charged in the indictment may be burdensome and time-consuming, bringing The basic reason for the inadmissibility of evidence of other in collateral issues that disrract the juty from the main issue. 33 In crimes, wrongs, or acts is that such evidence is irrelevant ro prove the conduct in question. As Wigmore says, it "has long cases in which the defendant wishes ro challenge the occurrence of been accepted in our law * '" * [tlhat 'the doing of one act is in the other acts, the potential for delay and confusion is significant. itself no evidence that the same or a like act was again done by the same person'* * *." The reason for this is that our knowl­ The Arguments For and Aga inst an Exception edge of the causes of human conduct is roo weak ro provide The principal reason for following a special rule admitting any major premise that will support the desired inference .... prior acts of rape or child sex abuse is the structural difficulty of The only explanarory model for human conduct expressly rec­ proving sexual offenses under the current evidentiary rules. The ognized by the law of evidence is the concept of "character." offenses virrually always occur in private and there is little, if any, But our confidence in this construct is so weak that its explicit corroborative physical evidence in most cases.34 Hence the cases use is only authorized under special circumstances. 25 tend ro come down ro the complainant's word versus the word of the defendant, with the prosecution required ro prove the offense The view that character evidence has no predictive value, and beyond a reasonable doubt. This structural problem is difficult ro hence no relevance, finds some support in modern psychology. overcome in the case of the rape of an adult, and it is heightened The "traits theory" of personality has been discredited by empirical in a prosecution for child sex abuse, where the victim may be very research demonstrating that "behavior is largely shaped by specific young. 35 Under these circumstances, the verdict often rums on the situational determinants that do not lend themselves easily ro pre­ availability of evidence that can be used ro resolve the swearing dictions about individual behavior."26 contest between complainant and defendant. While it is true that Other authorities-some of whom concede that character evi­ there are other offenses, such as theft, that often occur in a clandes­ dence may indeed be probative-focus on the prejudicial impact tine fashion, treating sex offenses differenrly from other clandestine that such evidence may have.27 This view was expressed over 40 offenses may be justified. The injury resulting from sex offenses years ago by the U.S. Supreme Court, which stated that though is more serious than that associated with most other offenses, and such evidence is "logically persuasive," it is roo powerful with the jury, and likely ro persuade them ro prejudge the defendant, deny­ 28 ing the accused a fair trial on the charge. In recent years, evidence 29 Mendez, supra note 26, at 1047-48. scholars have offered psychological data ro buttress the courts' .J(} Id at 1045-46. common sense view of the potential for prejudice from the intro­ 31 Id at 1048. duction of prior bad acts. Particular attention has been given ro 32 Id at 1054. what psychologists call the "halo effect": the propensity ro over- 3' See, eg., McCormick, supra note 27, at 797-98. 34 This statement is generally accurate in most acquaintance rape cases and many child sex abuse cases. Physical evidence typically plays a mOte significant role in stranger rape cases, where there may be evidence of physical trauma consistent 23 Professor Kuhns has argued persuasively that there is no real distinction between with the use offorce, as well as blood or semen, which may help establish the character and noncharacter evidence because both entail assumptions about rapist's identity. the accused's tendencies and disposition. Richard B. Kuhns, The Propensity to Misunderstand the Character ofSpecific Act Evidence, 66 IOWA L. REv. 777 (1981). 35 The court in State v. Edward Charles L., 398 S.E.2d 123, 132-33 (W Va. 1990) Others have argued that uncharged crimes can be so highly probative even on a (citation omitted), described some of the special problems in proving child sex character theory that they should be admitted. H. Richard Uviller, Evidence of abuse: Character to Prove Conduc~ 130 U. PA. L. REv. 845, 883, 890 (1982); see also [T]hese cases generally pit the child's credibility against an adult's credibility Hutton, supra note 18. and often times an adult family member's credibility. Since sexual abuse com­ mitted against children is such an aberrant behavior, most people find it easier H SeeEdwardJ. Imwinkelried, The Use ofEvidence ofan Accuseds Uncharged Misconduct to Prove Mens Rea, 51 OHIO ST. L.J. 575, 576 (1990). ro dismiss the child's testimony as being coached or made up or conclude that any rouching of a child's private pans by an adult must have been by accident. 25 22 Charles A. Wright & Kenneth W Graham, Federal Practice and Procedure § In addition, children often have greater difficulty than adults in establishing 5239, at 436 (1978) (footnotes omitted). precise dates of incidents of sexual abuse, not only because small children don't 26 Miguel Angel Mendez, Californias New Law on Character Evidence, 31 UCLA L. possess the same grasp of time as adults, but [also] because they obviously may REv. 1003, 1052 (1984). not report acts of sexual abuse promptly, either because they are abused by a 27 Eg., 1 Kenneth S. Broun et al., McCormick on Evidence§ 190, at 797-99 Uohn primary care-raker and authority figure and are therefore unaware such con­ W Strong ed., 4th ed. 1992) [hereinafter McCormick]. duct is wrong, or because of threats of physical harm by one in almost rota! 18 Michelson v. United States, 335 U.S. 469,475-76 (1948) . control of their life. 8 DUKE LAW MAGAZINE / SUMMER 1994

there is a correspondingly greater need to prosecute offenders Though it is popularly believed that sexual offenders are far successfully. Few people would dispute that the sexual abuse of a mote likely than other offenders to repeat their offenses, the reality child works a more profound and lasting harm than a theft and is more complex. The common law sexual propensiry exception that society has a greater responsibility to identifY and punish sex has been attacked on the ground that the statistics on criminal his­ offenders than thieves. tory actually show that sex offenders have a lower recidivism rate Recognition of this structural difficulty sets the stage for a than other categories of offender,40 though this argument has been reconsideration of the objections to prior act testimony in this dis­ attacked in turn by scholars who point out that the data in ques­ tinctive context. As noted above, three concerns underlie the rule tion omit undetected recidivism. 41 Since sexual offenses are often excluding such evidence: irrelevance, prejudice, and procedure. not reported, data based only on reported crimes may be quite It is these concerns that must be reassessed in the context of the misleading. Although methodological problems limit the conclu­ current proposal to amend the Federal Rules. sions that can be drawn at present, studies including self reponing The procedural objections are most easily met. The proposed show much higher rates of repeated conduct than the data on legislation itself disposes of one procedural concern by providing reported crimes indicate,42 and there is evidence that repetition the defendant with pretrial notice and an opponunity to respond of some forms of conduct is especially likely. 43 to any prior acts that will be introduced. The traditional rule of Indeed, the psychiatric profession recognizes pedophilia as a exclusion is also based upon the concern that introduction of evi­ disorder characterized by "recurrent, intense sexual urges and sexu­ dence of prior acts would unduly prolong trials and tend to dis­ ally arousing fantasies, of at least six months' duration, involving tract the jury from the main issue. Certainly the introduction of sexual activiry with a prepubescent child. 44 Given this definition evidence of ptior acts would somewhat prolong the trials in ques­ of a trait or predisposition that is defined by an intense urge or tion.36 Proponents of admission argue, however, that given the propensiry for certain conduct, it is difficult to argue that prior imponance of successful prosecutions of sex crimes, longer trials acts that might in turn demonstrate the trait of pedophilia are not are acceptable. Moreover, proponents also argue that evidence of relevant to the question whether a given individual has sexually other similar acts would not distract jurors but rather would assist abused a child. Moreover, within the general category of pedo­ them in resolving correctly the key issue in dispute: whether the philia it is possible to identifY types of individuals who are more complainant or the defendant is telling the truth. The determina­ likely than others to repeat their conduct, and also to identifY cir­ tion of whether such evidence imposes an undue burden on the cumstances under which cenain rypes of pedophiles are especially coun or distracts the jury thus ultimately comes down to the likely to commit additional offenses.45 One need not accept the question of whether evidence of this type is relevant and highly discredited character trait theory of personality to agree that a few probative on the disputed issues, or is-as the general rule barring traits or conditions, such as pedophilia, do have predictive value. such evidence assumes---of little or no probative value and highly On the other hand, neither the recognition of pedophilia prejudicial. as a psychiatric condition characterized by intense, recurrent, To frame the debate in terms of the William Kennedy Smith and long-term sexual urges nor the data suggesting that recurrent prosecution, if the evidence of the other assaults was indeed highly conduct is characteristic of some forms of pedophilia justifies the probative of the question whether the complainant or the defen­ wholesale treatment of sexual offenses in the current proposal. dant was telling the truth, it would not have been a distraction "Isolated sexual acts with children"-which would be admissible from the main issue, and it would have been appropriate to under the proposed changes-"do not necessarily warrant a diag­ extend the trial to admit this evidence. On the other hand, if the nosis of Pedophilia. "46 Moreover, as noted earlier, different forms evidence was of little or no probative value, though it would have of pedophilia seem ro show different rates of recidivism, and it is been given great weight by the jury, the trial should not have been questionable whether rape has the same distinctive etiology pro­ extended to admit this evidence. viding predictive value. 47 Thus, while arguments based upon the Two different arguments can be made regarding the relevance likelihood of repetition, and hence the greater probative value of of prior sex crimes. The first, which was typically used by the courts that developed the common law exception admitting such 40 Imwinkelried, supra note 15, § 4: 16. evidence, is that such conduct is relevant to show an abnormal 41 Hutton, supra note 18, at 622 & n.82. sexual predisposition strongly linked to repetitive conduct.37 The 4! David Finkelhor, Abusers, in A SOURCeBOOK ON CHILO SEXUAL ABUSf 119,336 present proposal relies in pan on this argument. The accompany­ (1986) . See generally Lita Furby et aI., Sex Offender Recidivism, 105 PSYCHO L. ing commentary argues that prior acts are relevant to show the BULL. 3 (1989). defendant's "motivation or disposition to commit such offenses" 4.1 Finkelhor, supra note 42, at 134 (all studies surveyed found abusers of boys among the most likely to repeat; three studies found them more than twice as 38 to in sexual assault cases. This argument is said be especially likely to repeat as offenders against girls); Furby et aI., supra note 42, at 27 (twO strong in child sex abuse cases, since "[elvidence of other acts of studies found lower rate of recidivism for pedophiles than for aggressive/assaul­ molestation indicates that the defendant has a rype of desire or tive offenders, that is , rapists); Hutton, supra nOte 18, at 620-23 (distinguishing impulse-a sexual or sexual-sado interest in young children-that fixated and regressed child molesters). 44 Diagllostic alld Statistical Mallual ofMental Disorders (DSM JIl-R) 284 (3d rev. simply does not exist in normal people.39 ed. 1987) (emphasis added) [hereinafter DSM JIl-RJ. 4\ Finkelhor, supra note 42, at 134-36; Hutton. supra note 18, at 619-23. 36 It is not clear how burdensome this would be in a typical case. Relatively few '6 DSM 11f-R, supra note 44, at 285. witnesses may be needed or indeed be available to ptove prior acts that also ,- For example, some data suggest that a large percentage of college-age men would occurred in private, where the only witness may be the alleged victim. engage in forcible sexual intercourse if they thought they would nOt be punished r lmwinkelried, supra note 15, §§ 4: 14-4: 15. for that behavior. See, eg. , Neil Malamuth et aI. , Testing Hypotheses Regarding 38 137 Cong. Rec. S3240 (dailyed. Mar. 13, 1991). Rape, 14J. REs. PE RSONALITY 121 , 130, 134 (1980) (51 percent of male college 3' Id students in sample indicated some possibility that they would commit rape if VOL U ME 12 , NO . 2 9

prior acts, might justifY a more narrowly tailored exception for Finally, it has been suggested that admitting evidence of a some forms of child sex abuse,48 they do not provide a convincing rape in the defendant's prior acts with others would be fundamen­ basis for the broader rules included in the Senate crime bill. tally inconsistent with the rape shield laws now in force in virru­ The proposed changes also provide a second, more broadly ally every U.S. jurisdiction; such laws generally bar evidence of the applicable rationale for admitting prior acts of rape and child victim's prior conduct with others.53 The legislative history of the abuse. The proposal relies on what Wigmore called the "doctrine proposal to amend the Federal Rules identifies three reasons for of chances," treating prior similar acts as "evidence of the improb­ distinguishing between the prior acts of the accused and the com­ ability that the defendant has been falsely or mistakenly accused of plainant in rape prosecutions: the crime."49 As the bill's legislative history explains: First, there is a basic difference in the probative value of the It is inherently improbable that a person whose prior acts evidence that is subject to exclusion under such rules. In the show that he is in fact a rapist or child molester would have ordinary case, enquiry by the defense into the past sexual the bad luck to be later hit with a false accusation of com­ behavior of the victim in a rape case will show at most that mitting the same type of crime, or that a person would she has engaged in some sexual activity prior to or outside of fortuitously be subject to multiple false accusations by a marriages circumstance that does not distinguish her from number of different victims. 50 most of the rest of the population, and that normally has lit­ This reasoning applies not only when identity is at issue but tle probative value on the question whether she consented to also when the defendant admits that he had intercourse with the the sexual acts involved in the charged offense. In contrast, victim but claims thar she consented.51 While in individual cases evidence showing that the defendant has committed rapes on the force of this probabilistic argument may be decreased by other occasions places him in a small class of depraved crimi­ showing that the different accusations were not independent or nals, and is likely to be highly probative in relation to the that there is a reason why multiple victims would make false or pending charge .... mistaken charges, these arguments can be presented to the jury Second, the rape victim shield laws serve the important when such cases arise. 52 purpose of encouraging victims to report rapes and cooperate The doctrine of chances analysis meets squarely the objection in prosecution by not requiring them to undergo public that the prior acts evidence is irrelevant or only weakly probative, exposure of their personal sexual histories as a consequence of but it does not meet the objection thar the evidence will be preju­ doing so. Rules limiting disclosure at trial of the defendant's dicial. As noted above, the traditional rule of exclusion is based in commission of other rapes do not further any comparable part on the fear that the jury will give evidence of prior crimes far public purpose .... Third, the victim shield laws serve the important greater weight than it deserves. Arguments can readily be made purpose of safeguarding the privacy of rape victims .... both for and against the proposed changes on this ground. In In contrast, violent sex crimes are not private acts, and the favor of the proposal it can be said that Rule 404(b) reflects the defendant can claim no legitimate interest in suppressing overall judgment that the danger of prejudice from prior acts evi­ evidence that he has engaged in such acts when it is relevant dence is not sufficiently great to bar such evidence when it is rele­ to the determination of a later criminal charge.54 vant to prove some disputed issue. Once it has been determined that prior sex offenses are relevant to proving either the act or the intent elements in prosecutions for rape and child sex abuse, this Conclusion evidence should be admitted subject to the court's general author­ The final question raised by proposed Rules 412,413, and ity to exclude it in a particular case if its prejudicial impact out­ 414 is whether their adoption would inevitably undermine the weighs its probative value. On the other hand, it can be argued general rule limiting the introduction of prior acts. Of course, the that this general calculus should not apply when the prior acts are proposal is limited on its face to prior acts of rape and child sex rape or child sex abuse, ro which jutors typically react with anger abuse, and the arguments based on greater likelihood of repetition and disgust. These Strong negative reactions are likely to be the are by their narure applicable only to a limited class of offenses. most prejudicial and difficult to counter. However, the doctrine of chances argument is applicable to any offense, and it has the potential to override the traditional rules lhey could be assured they would nOl be punished; 21 percent indicaled they strictly limiting the introduction of prior acts evidence. 55 In my would be likely to do so). But see Furby el al. , supra nOle 42, at 27 (ciling evi­ dence suggesling thaI rapisls have a higher rale of recidivism than pedophiles). view, a strong case has been made for the more generous admis­ .. See HUllon, supra no Ie 18, al 605, 623-25 (courtS should nOl recognize a general sion of prior uncharged misconduct in rape and child sex abuse child sex abuse exceplion, bu[ a more limiled use of abuser pallern-with expert cases, particularly in cases of acquaintance rape.56 I leave to others leslimony and appropriale opportunity for defendant to respond-would be the broader question of the desirability of a more general reevalu­ appropriate). " 137 Cong. Rec. 53240 (daily ed. Mar. 13, 1991 ). ation of rhe tradrional rules resrricting the admission of other \6 Jd crimes evidence. \l Id " !d. In facl, il can be argued that in mOSl cases the events would nOl be truly \J Set generally Harrietl R. Galvin, Shielding Rapt Victims in the State and Federal independent, and thaI an innocent person with a prior record of similar offenses CourlJ, 70 MINN. L. REv. 763 (1986). is more likely lhan an innocent person wi thou I any prior record to be accused ,. 137 Cong. Rec. 53241 (dailyed. Mar. 13, 1991). and to go to lrial. See Richard O. Lemperl & 51ephen A. 5alrzburg, A Modern Approach to Evitima 21 7-18 (2d ed. 1982) (an innocent person with a prior II Imwinkelried, supra nOle 24, at 585-602. record is more likely to be apprehended because of bias in lhe invesligative \6 For an excellent argument thaI prior similar acts evidence should be admissible process, less likely to have weak charges dropped, and more likely 10 plea bargain in acquaintance rape cases, see David P. Bryden and Roger C. Park, "Other since he or she knows thaI having a prior record makes conviclion more likely). Crimes" Evidence in Sex Offense Cases, 78 MI NN . L. REv. 529, 575-82 (I 994). 10 D U KE LAW MAGAZINE / SUMMER 1994

Contesting the Fiducial Line: Legal Theory and the Duty to Be Loyal Deborah A. DeMott

Introduction and unhelpfUl descriptions of the content and application of fidu­ To what extent, and in what contexts, are human decisions ciary obligation. Moreover, these questions of characterization appropriately assumed ro be shaped by the acror's rational calcula­ maner in shaping the evolution of commercial and social norms tion of self interest? These questions and their corollaries underlie that proceeds within the legal community and in the broader many disputed points in contemporary legal theory. In particular, society. Justifications for conduct do not develop independently much work in law and economics presupposes that people make of intellectual constructs. At the least, legal theory ought nor wir­ decisions in a rationally calculative way in pursuit of self interest, lessly provide rhe mechanics to undermine the normative core of a presupposition that varies in strength and specificity among many relarionships. authors. This essay examines how law-and-economics theorists As conventionally understood ourside the realm of law and characterize fiduciary obligation, thar is, rhe legal obligation to act economics, fiduciary obligarion imposes on persons subjecr to ir a loyally in the interest of another. A uustee, for example, owes such distinctive form of obligation. Although the specifics vary among an obligation to beneficiaries of a trust, as does an agent to her types of relationships, a fiduciary must, within the scope of the principal and a corporate director to the corporation and its share­ pertinent relationship (a matter left considerably to the parties' holders. My thesis is that a pervasive assumption of rational calcu­ own agreement to define), abjure the pursuit of self interest when lariveness, if defined to have operative content, leads to inaccurate it conflicts with the beneficiary's interests. In such relationships, unlike those defined solely by contract, the fiduciary is not free to rake self-interested actions, even those not expressly or impliedly prohibited by the parties' agreement. The law draws what may use­ fully be called a fiducial line, a fixed point to govern action within the parties' relationship. Like the fiducial line drawn for purposes of navigation or surveying, fiduciary obligation provides a stable plane of reference by which to guide the parties' conduct within their relationship and assess its propriety in the event of disputes. The scope and consequences of fiduciary obligarion can be summarized briefly. The law rreats some relationships as inherently fiduciary; by its legal nature such a relationship imposes duties of a fiduciary nature. These include the relationship between an agent and her principal, a union officer and the union's members, a senior corporate officer and the corporation and its shareholders, a uustee and the beneficiaries of the trust, a lawyer and her client, a guardian and her ward, and a partner and the partnership of which she is a member. The precise content of fiduciary obligation in each such relationship varies somewhat, but the basic animating ideas are the same. The law also recognizes that such a list will never exhaust situ­ ations in which fiduciary norms should apply. Fiduciary obligation governs as well in confidential relationships, which are "those infor­ mal alliances that arise whenever one person trusts in, and relies upon, another ... any relationship of blood, business friendship or association in which the parties repose special confidence in Deborah DeMott is Professor of Law. Duke University. She joined the Duke each other and are in a position to have and exercise, or actually Law faculty in 1975, and in 1989 was named the Duke University Scholar/ have and exercise influence over each other.'" By definition, a per­ son believed to lack integrity and a capacity for fidelity would have Teacher of the Year. She writes and teaches in the areas of corporate law. a defense against the imposition of fiduciary duty founded solely in takeovers and acquisitions, and fiduciary obligation a confidential relationship.2 No such defense is available in inher­ This essay was delivered in July 1994 at the Sixth International Con­ ently fiduciary relationships. In Don King Productions, Inc. v. Douglas, a fighter was unsuccessfUl in establishing that his rela­ ference on Socia-Economics, sponsored by the Society for Advancement of tionship with a boxing promoter was one of trust and confidence Socio-Economics in France, at a session honoring Professor Amitai Etzioni. A revised version of this essay will appear in a collection in honor of Pro­ 'United States v. Reed, 601 F. Supp. 685, 712 (S.D.N.Y. 1985). fessor Etzioni, edited by David Scuilli, to be published in the fall of 1995 by ' See Don King Productions, Inc. v. Douglas, 742 F. Supp. 741, 770 (S.D.NY ME Sharpe. 1990). VOLUME 12, NO.2 11

giving rise to fiduciary duties. The fighter testified that he was one beneficiary no worse off than he would have been in any event of the few people in the world of boxing '''that has ever had any­ because the lessor independently refused to renew the lease for the thing halfWay decent to say'" about the promoter, a perception benefit of the trust beneficiary. Finally, in some American juris­ the court held to be inconsistent with a high level of trust.3 On the dictions, some breaches of fiduciary dury expose the fiduciary to other hand, had the promoter in fact been a trustee, or an agent, liabiliry for punitive or exemplary damages beyond the amounts on behalf of the fighter, the fighter's view of the promoter's required to compensate the beneficiary for loss or to disgorge the integriry would not have relieved him from fiduciary duties. fiduciary's gain. Fiduciary obligation requires the person subject to it to use care in her actions within the scope of the relationship and, more Does Judicial Language Matter? distinctively, it prohibits the creation of a conflict berween self­ A striking feature of judicial opinions interpreting and apply­ interest and the beneficiary's interest. Early in the Anglo-American ing fiduciary norms is the language used by judges to explain and development of this body oflaw, Keech v. Sandford held that a justifY the outcomes they reach. The best-known example appears trustee commirred a breach of trust by obtaining a renewal of a in ChiefJudge Cardow's 1928 opinion in Meinhard v. Salmon: lease for his own benefit (as the new lessee) when the lessor refused to renew the lease for the benefit of the trust beneficiary.4 Were the Joint adventurers, like copartners, owe to one another, while trustee's renewal not a breach of trust, the court reasoned, the con- the enterprise continues, the dury of the finest loyalry. Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fidu­ ciary ties. A trustee is held to something stricter than the Like the fiducial line drawn for purposes of morals of the market place. Not honesry above, but the punc­ navigation or surveying, fiduciary obligation tilio of an honor the most sensitive, is then the standard of behavior.? provides a stable plane of reference by which to guide the parties' conduct within their Once bound by fiduciary ties, that is, the rationally calculative pursuit of self-interest is circumscribed by strict rules that favor the relationship and assess its propriety in the interests of the beneficiary over those of the fid uciary. In contrast, prior to forming fiduciary ties, parties deal at arms' length and event of disputes. do not owe each other duties of loyalry. Indicative of the force of Cardow's formulation, later courts occasionally characterize the conduct expected of a fiduciary as the "punctilio of honor" sequences would be obvious. Freed to negotiate to achieve his own standard.8 interests, any trustee might be tempted to prefer them to the bene­ Within the law-and-economics genre, many writers character­ ficiary's interests. The fiduciary prohibition on creation of conflicts ize fiduciary obligation as a species of contract, in which "the dury encompasses acts by the fiduciary that compete with business activ­ of loyalry replaces detailed conrracrual terms, and courts flesh out iry within the scope of the parties' relationship. the dury ofloyalry by prescribing the actions the parties themselves A significant component of the fid uciary's loyalry to the bene­ would have preferred if bargaining were cheap and all promises ficiary is a dury to disclose material information that is broader fully enforced."9 In consequence, as Judge Easterbrook and Pro­ than the duties of disclosure created by contract law and tort law. fessor Fischel wrote recently, fiduciary duties are "not special ... In any relationship, a person who has made a factual representation they have no moral footing, they are the same sorts of obligations, as to a significant matter has a dury to disclose information she derived and enforced in the same way, as other contractual under­ subsequently acquires if its import is to make the prior represen­ takings."10 I rerum later in this essay to the substantive import of tation untrue or misleading. A fiduciary is under an additional this passage. obligation to disclose material information to her beneficiary More generally one might wonder what to make of the whether or not the subsequent information makes a prior repre­ language used in opinions like Meinhard, replete as it is with non­ sentation untrue. 5 contractual-sounding terms and explicit references to moraliry. Distinct remedial consequences follow from a breach of fidu­ Easterbrook and Fischel observe that "we seek knowledge of when ciary obligation: the fiduciary has an obligation to compensate the fiduciary duties arise and what form they take, not a theory of beneficiary for any loss caused by the breach or, alternatively, the rhetoric-a theory of what judges do, not of explanations they fid uciary has an obligation to account for and disgorge any benefit give."ll This characterization seems to misalign the scholar's project realized through the breach.6 The obligation to account and dis­ gorge operates even when the beneficiary cannot show that the breach caused a loss or detriment to his position. In Keech v. Sandford, it is no defense to the trustee that his action left the Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546 (I 928}. ' SeeWartski v. Bedford, 926 F.2d 11,20 (1st Cir. 1991), {standard applicable to partner}; In re Van Swearingen Corp., 155 F.2d 1009, 1011 (6th Cir. 1946) (stan­ dard applicable to trustee); Alderman v. State, 615 So. 2d 640, 648 (Ala. App. lId. 1993) {standard applicable to construction contract advisor}. 'Keech v. Sandford, 25 Eng. Rep. 223 (I 726} . ' Frank H. Easterbrook & Daniel R. Fischel, Contract and Fiduciary Duty, 36 J. LAw 'Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Boeck, 377 N.W.2d 605, 614 {Wis. & ECON. 425, 427 (I 993}. 1985} (Abralumson, ]., concurring). IOld 6See REsTATEMENT (SECOND) OF TRUSTS § 205. "Id at 429. 1 2 DUKE LA W MA G A Z INE / S U MM E R 1 9 9 4

of explanation with the phenomenon, judging, to be explained. law as applied to fiduciary obligation. One basic point should be What judges do, they do with words, words purposely chosen acknowledged at the outset. Enforceable contracts, like most rela­ to explain and justifY the decision being made. Using words to tionships that attract fiduciary obligation, begin with a voluntary explain and justifY a decision is not an exercise in mere rhetoric. association and agreement among the parties. An exception in the Interestingly, other law-and-economics writers acknowledge fiduciary realm is a constructive trust, which is a remedy imposed implicitly that intellectual fashion and the language it attracts on a person who might not have intended such a relationship with matter because people internalize and act upon their justificatory the trust's beneficiary. As a general matter, the law of contract does and explanatory devices. Ptofessor Williamson frets about spillover not encompass or exhaust the legal consequences of aIL voluntary effects; he identifies a risk that rational calculativeness will pervade agreements and associations; many have their own distinct set of spheres of activiry that become dysfunctional when people do legal norms, such as those applicable to transactions in real prop­ not act cooperatively or even personal relationships where trustfUl erry, dispositions of properry intended to be effective upon the behavior is essential.12 For example, the aesthetic qualiry of an owner's death, and marriage and divorce. For that matter, norms orchestra's output is not likely to be furthered by precise physio­ defined by tort law-like fraud and products liabiliry-a1so apply logical measurement of each player's effort or by a compensation to voluntary associations, agreements and transactions. Thus, my scheme that rewarded such effort. One visualizes the violinists' concern is limited to claims that can be made distinctively about elbows swinging farther, and the flutists blowing harder, while in contract law, within the range oflegal norms applicable to all the imagination's ear the music deteriorates audibly. voluntary relationships. Personal relationships, those created by love, friendship and Contract law, many writers have noted, is morally uncon­ family ties, are undermined by participants who engage in ongoing cerned with whether promises are kept; rules specifYing remedies rational calculations of their prospects to "trade up" to a better for breach of contract at most compensate the non-breaching party friend, lover or family member. Early in Louis Begley's recent for the value that would have been conferred by the other party's novel, As MfJJC Saw It, the narrator (Max) reflects on the collapse performance, and in many respects such rules operate to under­ of his long-lived relationship with Kate: "ultimately it was the faint compensate. Writing in 1897 (well before the emergence of the indigniry of being the abandoned parry, and the inconvenience, contemporary law-and-economics movement), Justice Holmes I minded the most. Kate's skin had begun to coarsen; she was asserted, "[t]he duty to keep a contract at common law means a smoking too much; and she had become shrill. In time, I might prediction that you must pay damages if you do not keep it-and do better." 13 This passage skillfully leaves the reader with doubts of nothing else ... you are liable to pay a sum unless the promised many sorts about Max. Even if his statement that he might do bet­ event comes to pass . .. . "15 In any event, you the actor are free , ter is an attempt to rationalize away his loss, he seems, on balance, having entered into a contract, to calculate and act upon the course to be more comfortable with believing himself a cad than a lover that best furthers your self-interest. Indeed, argue many contempo­ left behind. To be sure, the world of personal relationships is more rary theorists, breaches of contract are and should be encouraged to complex than can be addressed within the ambit of this modest the extent they are efficient. If the breaching party can fully com­ essay. In some relationships, both parties may be attentive to pensate the nonbreaching party, and use his ptoductive capacity prospects of trading up; or one may be aware of the other's propen­ to greater gain elsewhere, the breach is efficient. And contract law siry to trade up but love the person unconditionally nonetheless. is stingy in its computation of damages, a trait that makes some Professor Williamson's response to spillover risk is to isolate breaches efficient at the margin that would not be were contract relationships of personal trust from the proper sphere of calculative law damages more expansive. Contract damages in the United behavior. He favors checking calculative excess elsewhere, outside States, for example, do not include attorneys' fees incurred by the the insulated sphere of personal relationships, by promoting aware­ nonbreaching parry to recover after a breach has occurred, nor do ness of "attitudinal spillovers," on the one hand and on the other, they include punitive damages or damages for pain and suffering. the nonpecuniary satisfactions that follow in relationships in which In striking contrast, the norms imposed by fiduciary obliga­ exchanges are not monitored too closely.1 4 One might instead treat tion operate to discourage the calculated pursuit of self-interest that trust as a more general phenomenon, to be valued and protected in underlies accounts of efficient breach. For starters, the beneficiary commercial as well as personal relationships. In any event, choices will always have the remedial option of compelling the fiduciary about language figure in the spillover phenomenon because they to account for and disgorge profit gained through the breach, as an reflect and influence acceptable patterns of explanation and justifi­ alternative to seeking compensation for loss. A rationally calcula­ cation for behavior. Even internal monologues (like Max's) are tive beneficiary who sues his fiduciary should, of course, choose the attempts to justifY our conduct to ourselves. remedy that yields the larger recovery. In this respect remedies for breach of fiduciary obligation resemble those generated by norms Enabling Efficient Breaches of property law, which does not permit one person to take what To assess the substantive import of the claim that fiduciary belongs to another even though the taker can use the ptoperty to obligation is a type of contractual obligation, it is helpful to test generate greater gains than can its owner. Such remedies operate the validiry of assertions about the nature and operation of contract ex ante to deter breach. Put more metaphorically, once the fiducial line is drawn, the well-known legal consequences of breach make it idle for a fiduciary to reckon the gain a breach would produce. "Oliver E. Williamson, Calcu!Juiveness. Trust and Economic Organization, 36 J. LAw The language in opinions like Meinhard v. Salmon, moreover, & EcON. 453. 48 1-83 (1993). is uncongenial to concepts like efficient breach precisely because it "Louis Begley. As Max Saw I~ 10 (1994). As it happens. the fictional Max is a law professor, a point that need not detain us. "Williamson, supra note 12. at 481-84. 150liver Wendell Holmes, The Path o/the Law. 10 HARV. L. REv. 457, 462 (1897) . VOLUME 12, NO.2 13

articulates normative footings for fiduciary dury. Emphatic judicial more carefUlly and more reluctantly whether and when to involve emphasis on punctilios of honor and duties of finest loyalry, if themselves in relationships of reliance which appear to them internalized by private parties, discourages the calculated pursuit increasingly insecure."17 And once in a relationship, fiduciary of self-interest. Justice Holmes, to be sure, observed that his con­ obligation reduces the costs of ever-vigilant distrust of the other ception of contract "stinks in the nostrils of those who think it party. In short, fiduciary norms reduce a commercial form of advantageous to get as much ethics into the law as they can. "16 The entropy. Along related lines, Professor Cooter and Mr. Freedman incorporation of ethical norms into a portion of the law is a major argue that the law of fiduciary duty deters misappropriation of the dimension of judicial opinions analyzing alleged breaches of fidu­ beneficiary's property by presuming that misappropriation has ciary obligation, a dimension that distinguishes fiduciary relation­ occurred, in many situations in which the beneficiary would have ships from those in which concepts like efficient breach are usefUl. difficulry establishing its actual occurrence. As a result, at the out­ Concepts of efficiency and anticipated economic benefit are, set of any relationship governed by fiduciary norms, the bene­ however, usefUl in understanding the reasons why people enter into ficiary's confidence in the other party is enhanced. IB Within an fiduciary relationships. Given the prospective liabiliry, why would established fiduciary relationship, to betray the beneficiary's con­ anyone join a partnership? Why would anyone other than an altru­ fidence will not be advantageous to the fiduciary. istic family member serve as a trustee or a guardian? Why (for that marter) does anyone become a lawyer? One hypothesis is that peo­ ple who subject themselves to fiduciary norms fail to understand The incorporation of ethical norms into a and properly account for their risks of liability, risks that may seem remote when the relationship is initially undertaken. As a general portion of the law is a major dimension of explanation, this hypothesis is not plausible; too many people­ judicial opinions analyzing alleged breaches many of them demonstrably clever and well-informed-have served as fiduciaries. A more plausible hypothesis for the assump­ of fiduciary obligation, a dimension that tion of fiduciary obligation in commercial settings is simply a well­ founded calculation of personal benefit through conduct that distinguishes fiduciary relationships from conforms to fiduciary norms. Prospective partners, for example, those in which concepts like efficient anticipate mutual advantage through their association; some fidu­ ciaries, like trustees and lawyers, additionally anticipate future ben­ breach are useful. efit by developing a reputation for faithfUl and competent service. Indeed, a prospective beneficiary who realizes that breach will not be efficient for his fiduciary can assign a more certain value to Carving-Out and Contracting-In to Duties their relationship and pay for the fiduciary's services knowing that To be sure, the precise or technical content of fiduciary norms breach should not be an attractive option for the fiduciary. varies among types of relationships. The duties applicable to corpo­ In contrast, the contract-law world of efficient breach is less rate directors under the general fiduciary aegis of loyalty are not certain; a contracting parry lacks accurate foresight into future identical to trustees' duties. Variability also occurs because the par­ developments that would make breach attractive to the other parry ties' own agreement significantly shapes the relationship and the and will always lack fUll information about the other parry's pro­ norms applicable to it. This point, of course, is crucial in evaluat­ pensity to breach the contract if self-interest so dictates. Of course, ing the claim that fiduciary norms are in essence contractual. My if these risks can be identified with precision, they can be insured concrete focus will be examples drawn from the law of trusts, but against. The magnitude of the risk in any particular relationship other areas of the law would, I think, support the general points. will be difficult to assess because the likelihood of a self-interested A trust is "a fiduciary relationship with respect to properry, breach is impossible to predict, even if the parry has a known track subjecting the person by whom the title to the property is held to record. Pricing the insurance would thus be difficult. In any event, equitable duties to deal with the property for the benefit of another to the extent any risk is insurable, the insurance is not free. Nor do person, which arises as a result of a manifestation of an intention markets for insurance themselves operate without cost or friction. to create it."19 The settlor, who creates the trust and transfers title In commercial settings especially, it is helpfUl to distinguish to the properry to the trustee, would typically manifest his inten­ between motives for entering into a relationship, which are likely tions in a written trust agreement. A typical trust agreement desig­ to be self-interested, and norms that govern conduct within the nates the beneficiary, specifies the nature and extent of the trustee's relationship once it is formed. The relative certainty created by a powers regarding trust property, and determines the trustee's fiduciary norm, oddly enough, should facilitate more accurate duties. In particular, trust law recognizes that "the terms of the calculation of whether entering into a particular fiduciary relation­ trust" -the provable manifest intention of the settlor--determine ship will be advantageous. Such certainty----created by the legal norm applicable to the relationship--substitutes for contractually­ defined insurance against a set of risks surrounding the parry's 17Roger Correrrell. Trusting in Law. 46 CURRENT LEG. PROBS. 75. 95 (1993. pan 2). future self-interested conduct. It also obviates or, at least, reduces "See Robert Cooter & Bradley j. Freedman. The Fiduciary Relatiomhip: Its Eco­ the loss described by Roger Cotterrell that otherwise results as "the nomic Character and Legal Comequences. 66 N.Y.U. L. REv. 1045. 1074 (1991). pace of economic, financial life ... slows as individuals calculate 19REsrATEMENT (SECOND) OF TRUSTS § 2. The existence of a trust for legal purposes does not require trust beneficiaries to demonstrate that they actually reposed psy­ chological trUSt in the trustee. For treatments of the psychological and institu­ tional circumstances of trust, see TRUST: MAKING AND BREAKlNG COOPERATIVE RELATIONS (Diego Gamberra ed. 1988). 14 DUKE LAW MAGAZINE / SUMMER 1994

the nature and extent of the trustee's duries and powers.20 In the of the duty by imposing on the parties the terms they hypotheti­ absence of terms determining otherwise, the rrustee-among cally would have agreed to "if bargaining were cheap and all other duties-must keep and render accurate accounts and fur­ promises fully enforced."24 But if the parties to an actual relation­ nish accurate information to the beneficiary, must use the skill ship do not bargain out its terms fully, how do we know what and care of they would have agreed to? Why assume that, in any particular a prudent person in administering the trust, must deal impartially relationship, a bargain reached by the parties would replicate the with beneficiaries and must segregate trust property from the law of fiduciary obligation as it presently exists? trustee's own property and use reasonable care to preserve rrust Indeed, the limits that trust law invariably imposes on gen­ properry and make it productive. Most fundamentally, the trustee eral exculpations and transaction-specific consents manifest skep­ has a duty of loyalty "to administer the trust solely in the interest ticism of actual bargains and agreements. Actual bargains reflect of the beneficiary" and, in dealings with the beneficiary, to deal each party's intensity of need or desire to conclude a deal and each fairly with him and "communicate to him all material facts in party's skill in bargaining to achieve her ends (which contract law connection with the transaction which the trustee knows or itself does not require be candidly disclosed to the other party). should knoW."21 All such duties, though are subject to "the terms Nor does the parties' opportunity to bargain foreclose judicial of the trust." imposition of fiduciary duties when a dispure later arises; more­ On closer inspection, trust law limits the efficacy both of over, courts impose relatively exacting forms of the duty ofloyalty carve-outs from otherwise-applicable fiduciary duties, as well as in relationships in which the parties likely had an actual opportu­ transaction-specific waivers or consents to rransactions that con­ nity to bargain over the terms of their relationship. Meinhard v. stitute breaches of trust. Although a trust agreement may include Salmon, the origin of the "punctilio of honor" label, involved a exculpatory provisions that relieve the rrustee ofliability for rwo-person joint venture in real estate in which the joint venturers breach of trust, exculpatory provisions are ineffective ro relieve the had a detailed written agreement. Likewise, many courts impose trustee from liability to account for any ptofit derived from breach fiduciary duties on fellow shareholders in small, closely-held of rrust. Nor may the trustee be exculpated against liability result­ corporations but not in larger publicly rraded corporations.25 If ing from breaches of trust committed in bad faith or with reckless fiduciary obligation were a judicially-crafted substitute for the indifference to the beneficiary's interests.22 Even when the bene­ parties' own bargain, one would expect the obligation to operate ficiary consents to a transaction, if the trustee has an interest in it more stringenrly when the parties lacked a realistic opportunity to adverse to the beneficiary's interest, the beneficiary is not bound bargain and less stringenrly in cases like Meinhard and closely-held unless the transaction is fair and reasonable?3 corporations. One reason for these restrictions is definitional. If a trust agreement could effectively relieve the trustee of her duty to Mandatory Elements of Contract Law account for profit derived from a breach of trust, the trustee The parties' agreement does not control all aspects of a rela­ would not be a fiduciary in any operative sense, and the settlor tionship governed by the general law of contract. Mandatory rules would have created a relationship other than a trust. The rransac­ oflaw (among other things) prohibit fraud, require certain agree­ tion purportedly creating the "rrust" would, in operative effect, ments to be in writing to be enforceable, and limit the parties' be a gift of the property to the trustee who would be free to use it ability freely to specifY the remedies to apply in the event of 26 solely in her own interests. A separate reason for the resrrictions breach. More generally, contract law imposes on parties a duty is prudential. Trustees, it is feared, may overreach both in drafting to act in good faith in the performance and enforcement of the trust insrruments and in procuring beneficiaries' consent to prob­ contract. That contract law imposes such a duty suggests a con­ lematic transactions. vergence between contract law and fiduciary obligation because In any event, the concept just explicated is that of carving­ both require other-regarding behavior. out from otherwise applicable fiduciary duties through the terms The extent of the convergence, however, is far from com­ of an instrument or other agreement. In many respects, agree­ plete. Many contract cases, in fact, hold that self-interested behav­ ments subject to general contract law proceed in the opposite ior is not a breach of contract, even when the legal framework is direction-the parties contract into duties, and contract law expressly understood to include a duty of good faith and the self­ imposes on each party only those duties of performance that the interested conduct injures the other party. In a leading example, party agreed to assume. Contract law, to be sure, has some man­ Metropolitan Life Insurance Co. v. RjR Nabisco, Inc., RJR Nabisco datory content discussed later, but the defining feature of the incurred enormous amounts of additional indebtedness to fund a 27 process of contracting is the specific identification and assumption leveraged buyout rransaction. The impact-clearly foreseeable­ of duties. of the additional borrowing was sharply to reduce the market To characterize fiduciary obligation as essentially contractual, given this background, law-and-economics theorists use the con­ struct of the hypothetical contract. Easterbrook and Fischel argue 14&e Easterbrook & Fischel , SlIp,.. nOte 9, at 427. that fiduciary obligation is contractual because "the duty ofloyalty "Compare Noakes v. Schoenborn, 116 Or. App. 464, 841 P.2d 682 (1992) (hold­ ing that controlling shareholder in closely-held corporation is a fiduciary toward replaces detailed contractual terms" and courts specifY the content minority shareholders) with Kahn v. Sprouse, 842 F. Supp. 423 (D. Ore. 1993) (court declines to apply Noakes principle when public market exists for minority's shares). 1.!d. § 164(a}. 16For a theoretical treatment, see Michael J. Trebilcock, TH E LIMITS OF FREEDOM " !d. § 170. OF CONTRACf (1993). "Id § 222. " Metropolitan Life Insurance Co. v. RjR-Nabisco, Inc. , 716 F. Supp. 1504,1516- BId § 216(3}. 23 (S.D.N.Y. 1989). VOLUME 12, NO.2 15

value of debt securities previously issued by RJR Nabisco. The party's truSt or ignorance will stifle demands for a formal bar­ court held that the subsequent borrowing did not violate any duty gain.32 Professor Kotritsky's definition would catch parties who of good faith owed by RJR Nabisco ro its prior creditors; had they do not lie and who withhold only the information that they are wished ro constrain its ability subsequently to borrow massive not trustworthy. amounts of money, the loan instruments could have so provided. Other writers, prominent among them Judges Posner and In short, the contractual duty of good faith is not fiduciary Easterbrook, emphasize the problem of sequential performance: obligation labelled in different language; it does not proscribe in a contract relationship in which one party must perform fust, self-interested conduct that, as in RJR Nabisco, could readily be the other may seek occasions to evade his obligation to perform addressed in the parties' agreement. 2S Instead, the contractual duty in return. 33 A common example would be an employer's decision of good faith prevents parties from evading the consequences of to terminate a long-term employee shortly before his pension the express commitments they have made and from abusing the vests. This definition, though, is difficult for lawyers to use opera­ other party. For example, if a shoe manufacturer enters into a con­ tionally because it catches both conduct that is a "mere" breach of tract with a leather supplier to buy all its requirements ofleather contract, if the breach follows the other party's full performance, for some period of time, the buyer's duty of good faith limits the as well as conduct that attracts sanctions beyond the remedies quantity of leather it may demand to one determined "in good available for simple breaches of contract. Insurance companies, for faith."29 But the leather supplier is free, unless the contract explic­ example, who decline or refuse to pay claims for no good reason itly provides otherwise, to furnish leather to the manufacturer's are often subject to extracontractual tort remedies, chief among them punitive damages. Finally and most broadly, Professor Cohen defines oppor­ Many aspects of fiduciary obligation resist tunism as "any contractual conduct by one party contrary to the other party's reasonable expectations based on the parties' agree­ explanation if one begins with a robust ment, contractual norms, or conventional morality."34 Under Professor Cohen's definition, all breaches of contract would assumption that all human conduct is presumptively be opportunistic. This definition of opportunism driven by the rationally calculative pursuit either vitiates the moral disapproval the term conventionally con­ veys, or undermines the posture of moral irrelevance into which of self-interest. Justice Holmes so resolutely cast breaches of contract. Although they define opportunism in divergent ways, many contemporary law-and-economics theorists, unlike Justice Holmes, explicitly chief competitor. On the other hand, a director of an incorporated treat some breaches of contract as morally culpable. Broad defini­ shoe manufacturer would owe fiduciary duties to the corporation tions of opportunism, in particular, undermine the claim that and its shareholders; if the director acquired an undisclosed inter­ within the law-and-economics tradition, contractual duties lack est in the competing manufacturer, the director would have moral footing. breached her fiduciary duty ofloyalty. Interestingly, many law-and-economics theorists characterize Conclusion as "opportunistic" conduct that seems excessively self-regarding. Many aspects of fiduciary obligation resist explanation if one Although the term "opportunism" always conveys moral disap­ begins with a robust assumption that all human conduct is driven proval in this literature, it gathers under one umbrella conduct by the rationally calculative pursuit of self-interest. The operation that has different legal consequences. Relatedly, law-and-econom­ of this body of legal doctrine is distinctive and, in particular, is ics theorists define the term differently.3o To Professor Williamson dissimilar in major respects to general contract law because its and his co-authors, an opportunist attempts "to realize individual function is different. It protects expectations of loyal behavior gains through a lack of candor or honesty in transactions."31 within specific types of relationships. The value of fiduciary Translated into legal categories, Professor Williamson's definition obligation in commercial settings is that its imposition is known would encompass a fraudfeasor, one who induces a transaction to proscribe certain types of self-seeking conduct. Paradoxically, through a misrepresentation of fact, but not a buyer in a require­ drawing the fiducial line by requiring other-regarding conduct ments contract relationship who demands quantities beyond the from one party can be beneficial to all within a relationship. needs of his business, so long as he doesn't lie. Professor Ko tritsky's definition is broader: opportunism is the "strategic withholding of information"; a party also acts opportunistically by strategically avoiding making a commitment in negotiations when the other

" Id at 1519. See further William W Bratton, Jr., Self-Regulation, Nonnative Choice, and the Structure o/Corporate Fiduciary Law, 61 GEO. WASH. L. REv. 1084, 1122-28 (1993); Deborah A. DeMott, Beyond Metaphor: An Analysis 0/ 32 See Juliet P. Kotritsky, Bargaining wiih Uncertainty, Moral H=rd and Sunk Costs: Fiduciary Obligation, 1988 DUKE L.J. 879,892-902. A Deftult Rule for Precontractual Negotiations, 44 HAsTINGS L.J. 621,642-43 "See VCC § 2-306(1). (! 993). JOFor a fuller discussion, see Deborah A. DeMott, Do You Have the Right to Remain 33See Richard A. Posner, ECONOMIC ANALYSIS OF LAw 89-90 (4th ed. 1992); Jor­ Silmt: Duties o/Disclosure in Business Transactions, 19 DEL. J. CORP. L. 65 (1994). dan v. Duff & Phelps, Inc., 815 F.2d 429, 438 (7th Cir. 1987) (Easterbrook, J.) . 11 See Oliver E. Williamson et aI., Understanding the Employment Relationship: The "See George M. Cohen, The Negligence-Opportunism Tradeoffin Contract Law, Analysis 0/ Idiosyncratic Exchange, 6 BELL J. ECON. 250, 258 (1975). 20 HOFSTRA L. REv. 941, 957 (1992) (foomotes omitted). ABOUJJl SC'H VOLUME 12. NO.2 17

Teaching Trial Skills

n the changing world of legal edu­ firms can no longer afford. This throws the general aspects of public speaking, cation in the United States, the the responsibility for training young persuasion and communication to con­ I 1994 model for teaching trial prac­ lawyers to try cases back into the laps sider.... Trial practice doesn't replace tice to young lawyers is fast-paced and of the law schools, and most are ill­ actual experience, but it can make that practical. It has replaced an older, more equipped to meet the challenge. But first actual experience much more passive model-one in which teachers not Duke's students," she adds. "They pleasant and successful. The trial-and­ simply told students what to do with­ are getting some of the best trail advo­ error method oflearning isn't efficient; out ever giving them a chance to do it, cacy training in the country." now, we're teaching learning-by-doing according to Donald H. Beskind '77, in simulated cases in Duke's class­ an attorney with the Raleigh firm of learning by Doing rooms." Blanchard, Twiggs, Abrams and Strick­ Beskind, who received his LL.M. Beskind also involves other litiga­ land, and a senior lecturing fellow at degree from Duke in 1977, said he tors in working with the students. Duke Law School who supervises the trial practice program. "The new model is a response to firms trying fewer cases and having less opportunity to provide trial training for new lawyers. Without anybody actually realizing it, there was a time when neither law firms nor law schools were putting the time or resources into training young attorneys to actually try cases," says Beskind, who has been instrumental in developing pioneering methodology for teaching trial skills. "Once upon a time, firms had the time to wine and dine and train new attor­ neys; now, in the increasingly compe­ titive legal services market, firms expect attorneys to work and function imme­ diately. That means they need to learn more trial and other skills in Don Beskind (at judges' bench) presides during trial practice class. Elizabeth Catlin '94 (at podium) addresses the jury. law schooL" Carol Boyles Anderson '80, a pro­ learned as a law student participating Michael Dockterman '78, now practic­ fessor of trial advocacy, agrees. "In the in early trial practice teaching exper­ ing in Chicago who has taught NITA old days, corporate clients never ques­ iments that there's a world of difference courses for eight years, declares it is tioned the common practice of dis­ berween knowing what the law says "great coming down to help reach." He patching a senior partner and a junior and actually putting that knowledge enjoys seeing the change in students in associate to depositions and trials. into practice with a real client, judge just a day or rwo of classes as they "see Though the senior partner actually did and jury. "There are so many things other people learn through trial and all the work, the junior associate came one doesn't learn in the normal course error, giving them the courage to try along to learn critical trial skills. Cli­ of classroom study," Beskind said. "For things and to be self-critical." ents, however, are no longer willing example, on top of learning how to "If all you do is observe, you learn to pay for in-house mentoring, the tra­ examine and cross-examine a witness, to imitate," says Dockterman. By actu­ ditional method of training new asso­ how to deal with expert witnesses and ally doing the work, you learn that ciates. It was a luxury that modern law make closing arguments, there are all you need to accommodate your own 18 DUKE LAW MAGAZINE / SUMMER 1994

strengths and weaknesses. You also dents. The idea is to get students on mastered the art of academic achieve­ learn the "need to struggle to find the their feet as much as possible." ment. Persuading a jury is an art for right style for the job that needs to The most innovative and exciting which most of us are grossly unpre­ be done. The most effective cross in part about the trial advocacy programs pared. That kind of communication is some cases is a very gentle style; for over the last few years is the intensified simply not reinforced or taught in the other witnesses it is a rigorous cutting trial practice experience for some stu­ cerebral world of academia. For this examination. " dents through unique scheduling. For reason, I always tell my students that in The alumni who work with the two and a half very long days over the trial practice they will be doing a differ­ program primarily critique student first weekend of the semester, the stu­ ent kind of learning and developing performances of the various skills and dents do nothing but trial advocacy. skills different from the ones that have They spend mornings in lectures and been valued for their many years of the afternoons and evenings in exer­ academic success. The kinds of skills "Clients . .. are no longer cises. At the end of the weekend, the that are needed in trial are often new to willing to pay for in-house course in half over. The class meets a them and are essentially performance few more times during the term and and communication skills." mentoring, the traditional then is completed with the students' method of training new mock trials. International Exchange Becton says the program is well­ The evolution in teaching trial associates. It was a lUXUry liked. Students get this class out of the skills is one that can be traced over way and can concentrate better on decades and from Great Britain to that modern law firms can other classes. Most importantly, during the States and back again, according no longer afford. " those intense few days, students give to Beskind, a program director for the their full attention to learning the intri­ National Institute for Trial Advocacy cacies of trial advocacy. Becton further and a teacher of trial practice at Duke in doing so share their experiences and notes that "although lectures and dem­ since 1977. accumulated wisdom about how to onstrations are an important part of In the 1970s and early '80s, some try a case. For Dockterman, this is the the course, the heart and soul of this U.S. scholars expressed admiration for most interesting aspect of the class as 'learning by doing' class is student par­ the English legal system, which sepa- students have a chance to see them­ ticipation in simulated trial practice selves on tape and receive critiques exercises. Or, as many trial advocates from peers and practitioners so that now say: 'Trial practice class, because they can "realize what is effective about Tell me, and I will forget it is small and intimate, and other's presentations and their own." Show me, and I will remember Carol Anderson '80, who also Involve me, and I will understand." because it is not real (no returns to help with the trial advocacy Elizabeth Kuniholm '80, who also courses, credits her experience taking teaches trial practice finds, "In my one's life or livelihood hangs these same courses with Beskind when experience students both fear and enjoy in the balance), is a place a law student as being "largely respon­ the process. T he class itself is a chance sible for the career choice I've made­ to learn in a protected environment. I to experiment and test trial advocacy and clinical teaching at always tells the students that their best [studentsjlimits in a Wake Forest Law School." Obviously learning will occur if they make them­ it was a good choice, as Anderson just selves vulnerable and are willing to supportive environment. " received the Association of Trial Law­ take risks. Trial practice class, because yers of America Jacobson Award as the it is small and intimate, and because best trial advocacy teacher in America. it is not real (no one's life or livelihood rates trial lawyers, known as barristers, The first recipient of the Jacobson hangs in the balance), is a place to from other attorneys, called solicitors, Award, Charles L. Becton '69, also experiment and test their limits in a Beskind said. "So, for a time, we continues to teach trial practice at the supportive environment." brought over some of the best barristers Law School on a regular basis. He She also finds that trial practice is a in England to help us train trial law­ describes his class as a "show-and-tell very different experience for "most stu­ yers." But in recent years, U.S. attor­ presentation" that stresses maximum dents who have reached second or third neys, such as Beskind and former Duke participation on the part of his stu- year at Duke Law School and have fac ulty members Joe Harbaugh and VOLUME 12 , NO .2 19

Tony Bocchino, have developed the system has been one of sharing for United States-South African Leadership new techniques required for what more than 200 years. Now, other coun­ Exchange Program, which is based in became, in essence, an entirely new tries, like Russia and New Zealand and Washington, D.C., Becton and three method of legal education. "Some of Australia, have begun to express inter­ other Americans taught trial advocacy the techniques we developed and used est in having us come to teach trial to black lawyers in Durban, Johannes­ at Duke in the '70s are still used today practice courses." burg, and the Transkei and Zululand homelands.

Young Lawyer Thinks Classes Useful Closer to home, trial skills courses are not required at Duke but are always filled with upperclass students who believe they need this kind of training. In trial practice, students take turns fill­ ing all the roles found in a courtroom -from judge and jury to attorneys, defendants, plaintiffs, and witnesses. The proceedings are videotaped and analyzed during group discussions and in individual sessions with Beskind. Scott Pritchett '92, who is now a civil litigator in Raleigh, said trial practice was one of the most "signifi­ cant and useful" things he gained as a law student. "I found that what you Doug Chalmers '95 (at podium) practices his technique during Don Beskind's trial practice class. learned in class wasn't really useful until you had to apply it to a specific set of in law schools and firms across the facts. It's an entirely different scenario country," according to Beskind. "It's an entirely different when you're arguing in front of a jury That methodology is of particular scenario when you 're and a judge, with another attorney interest now in England, where there's breaking your train of thought with a movement afoot to increase the arguing in front of a jury objections. It calls for a lot more think­ "rights of audience" of solicitors allow­ and a judge, with another ing on your feet not to be thrown off ing them to try cases formerly reserved attorney breaking your train by the unexpected and the adverse. It for barristers. Beskind and other attor­ teaches you how to hold your ground." neys have been traveling to England of thought with objections. Another important aspect of several times a year to offer such It calls for a lot more thinking Beskind's trial practice course was the courses in law schools and firms. In on your feet not to be thrown opportunity to learn to work with September, he will be at Oxford for a other 'attorneys,' Pritchett added. "We week teaching the first such program off by the unexpected and had to work with two other attorneys for barristers who evidently watched the adverse. It teaches you on our team, so we learned to share "the solicitors get trained and are think­ responsibilities, pooling our strengths ing that they could learn from the how to hold your ground. " and weaknesses so that we could teaching methodology as well." Bes­ develop strategies to put the best spin kind stresses, however, that "this is not Becton has also taught interna­ on the case. Now that I've been work­ a case of the U.S. sending lawyers to tionally. In the summer of 1988, he ing for a while, I can see how impor­ Britain to show them how to do it. was invited to bring his skills to the tant that was." Our relationship with the English legal Republic of South Africa. Through the Debbie Selimky and Evelyn Pursley '84 20 DUKE LAW MAGAZINE / SUMMER 1994

Public Interest Thriving at the Law School

es Powell '94, who helped AlDS and HIV-positive W patients write their living wills, powers of attorney and wills, and Rick Peltz '96, who worked to explain the relevance of the First Amendment to area middle-schoolers, represent the diversity and reach of Duke University School of Law's thriving Pro Bono Project.

Increasing Interest Established three years ago as a formal volunteer program directed by Carol Spruill, the Pro Bono Project is an effort to interest as many students as possible in a public service experience. (The Magazine featured the establish­ Above: Lark Hayes (gesturing at end of table) leads a ment of the Pro Bono Project in its luncheon discussion on environmental law. Left: Rick Summer '93 issue.) The Project has Peltz '96 (leaning on the right) presents aworkshop on the First Amendment to local eighth-graders. grown rapidly: in the first year 87 stu­ dents participated, and in the second year, 180 law students were involved approximately 12 students volunteered in organized pro bono work for those with the Guardian ad Litem program. who can't afford legal services. During the 1993-94 academic year, a total of Getting Involved 225 law students volunteered. The Pro Rick Peltz '96 from Baltimore, Bono Project also spawned two new, Maryland, has made the First Amend­ related programs: a luncheon series, ment the basis of his studies. While he which is open to all students who want hasn't yet decided if he'll become an to supplement their experience with a attorney focusing on media issues or a group learning situation, features journalist focusing on legal issues, Peltz speakers from public interest areas and has had a strong interest in freedom of discussions of related books, and the press and expression since his experi­ Poverty Law Seminar offers an in-depth ences as editor of his high school and exposure to poverty law issues. college newspapers. On May 11, Peltz The 225 students who participated presented a workshop on the First in 1993-94 offered a variety of much­ sentation, from policy advocacy to Amendment with a member of the needed services to the Duke and Tri­ client interviewing and case prepara­ North Carolina Press Club, an affiliate angle Area communities, and were tion. Several organizations or projects of the National Federation of Press supervised by 93 area professionals. received the energies of more than one Women (NFPW), to 26 eighth-graders The students worked in over 100 loca­ student. For example, 35 students were at Githens Middle School in Durham. tions in more than 30 subject-matter involved in the AlDS Wills Project, Using a variety of participatory areas in the public, private and non­ 27 students participated in the newly­ teaching methods suggested by the profit sectors. Their job functions revived Volunteer Income Tax Assis­ national Student Press Law Center in ranged from research to in-court repre- tance (VITA) program, and Washington, D.C., and materials pre- VOLUME 12, NO.2 21

pared by the First Amendment con­ year at the Law School to a project to see during early discovery phases gress, Peltz said he hoped they commu­ with North State Legal Services. Dur­ things you don't learn in law school," nicated some basic understanding of ing a recent interview, Montgomery said Montgomery. "[It] absolutely the amendment's importance. "The said she was interested in seeing "how added so much to my first year of law really important thing that we want to the law affects the lives of real people." school experience. I've seen the civil convey to the students is that the First After talking with Spruill, she decided procedure process in action. It makes Amendment isn't just something vague on a pro bono project in legal services what we were learning in civil proce­ floating out there that doesn't affect so that she could see how a case is put dure class seem more real." them. They will encounter it as young together and played out in the court This experience reinforced to her people, perhaps, for example, in the system. how difficult it is to overcome language form of censorship of the school Montgomery assisted Carlene and cultural barriers in pursuing access paper," Peltz said in an interview. McNulty, managing anorney of Norrh to the legal system and that people who are interested in public service need to understand and relate to the variety of backgrounds and situations repre­ sented. "I think every student at Duke Law School should do pro bono work at some point during their three years here. It's good to expand our perspec­ tives no matter what aspect of law we choose to pursue. Anytime we extend ourselves to other people and experi­ ences it's good for us and for our communities."

Working Together The AIDS Wills Project provides specialized services to a growing num­ ber of needy Durham residents-those with HIV or AIDS. The project began with Duke Law adjunct faculty mem­ ber Carolyn McAllaster, who had been Carolyn McAiiaster and Wes Powell work on the AIDS Wills Project. volunteering her individual services as an attorney to area HIV and AIDS "And while there are First State Legal Services, who is litigating a patients. She received so many requests Amendment rights available only to class action suit on behalf of employees from people wanting assistance with older people-the right to vote, drink, at a poultry processing plant. During living wills, wills, and powers of attor­ drive, go to R-rated movies-students her first semester, Montgomery spent ney that she sought volunteers from the have some rights now. For example, time on general intake interviews at Law School. they can publish a student newspaper, NSLS in Hillsborough. She also trav­ The project was exactly what Wes they can write a letter to the editor of eled to Siler City to interview some of Powell '94, a Brownsville, Tennessee a newspaper-these are things students the poultry workers, many of whom native, had been seeking. "Making a need to understand about the First are Latino and speak little or no Eng­ will and a living will are good ideas Amendment so that they can show lish. As Montgomery had worked and for everybody, but especially for AIDS responsible use of their rights and con­ been involved in Latino communities patients, who know they will reach a tinue to fight for them." Peltz contin­ in Los Angeles prior to coming to point when they can't communicate ues to pursue his interest this summer Duke, she speaks Spanish fluently and their health care needs," Powell said as an intern with the Student Press was able to communicate with the in an interview. "Durham and North Law Center, which is directed by Mark workers. Carolina have been hard-hit by AIDS, Goodman '85. Montgomery also prepared not only the gay male population but Loren Montgomery '96 devoted research memoranda on various issues particularly the African-American pop­ much of her free time during her first related to the case. "It was interesting ulation. Until I became really involved 22 DUKE LAW MAGA Z INE / SUMMER 199 4

in this project, I didn't realize how muniry who have had a major impact many people there were who needed Powell Receives in a policy area; students discussing the kind of services we can provide. Pro Bono Award their public service experiences; and A living will, which enables the patient student-led discussions of agreed­ to make advance decisions about his Wes Powell '94 has been named this year's upon books. Seven outside speakers future health care, lets AIDS patients Outstanding Pro Bono Student for Duke Law presented discussions on a wide variery rest easier, knowing they've taken the School by the North Carolina Bar. Each year, the of topics, from Ran Coble, director burden of decision-making from their Bar honors one student from each of the five of the N.C Center for Public Policy families and loved ones." North Carolina law schools. Powell has been Research, discussing emerging democ­ active in the Law School's Pro Bono Project for McAllaster had worked primarily racies, based on his world travels with three years, working for the NC Civil Liberties through the AIDS Service Project of a Kellogg Fellowship to Mary Lee Hall, Union, North State Legal Services, and for the law executive director of Farmworkers Durham to connect with AIDS and firm of Patterson, Harkavey & Lawrence doing pro HN-positive patients who live in the bono work on an employment discrination case. Legal Services in Raleigh, speaking Fitz-Powell Apartments, a federally­ He also served as the student director of the AIDS about the plight of migrant farmwork­ funded apartment complex in Durham Wills Project. ers. Other speakers were Lark Hayes, for people who are disabled, particu­ N.C director of the Southern Envi­ larly from AIDS, and with the AIDS ronmental Law Center in Chapel Hill, Communiry Residence Association's first-year law students who will keep on environmental law; Pam Silberman, Blevins House, a D urham residential the project growing for the next couple founder of the N.C Health Access faciliry providing care for six AIDS of years, Powell said. Annette Parent Coalition and the depury commis­ patients. She, Spruill and Powell got '96, new student director of the pro­ sioner of the N.C Health Planning together to have Duke Law students ject, is working with Powell to ensure Commission, on health care reforms; take up a program at the Duke Medical that some level of service is available to Abdul Rasheed, president ofN.C Center's infectious disease center pre­ HN and AIDS patients in the Triangle Communiry Development Initiative, viously run by law students from the over the summer. Inc., in Raleigh, on communiry eco­ Universiry of North Carolina at The Volunteer Income Tax Assis­ nomic development; Greg Malhoit, Chapel Hill. tance (VITA) program was revitalized director of the N.C Legal Services While student Powell and faculry in 1993-94. Under the leadership of Resource Center, on education issues; supervisor McAllaster hoped they'd Tania Dyson '95, Craig Lair '95 and and Sherri Rosenthal, a former Legal get eight or ten volunteers at the Law Shannon Geihsler '%, VITA again Services attorney who has worked with School for the AIDS Wills Project, 35 offered income tax assistance to people gay & lesbian rights and who devel­ students signed up for the program this who are unable to afford the assistance oped the Eno River Cooperative Living year. "Many of the students who vol­ of professional preparers. Working out Project, on creating your own public unteered told us they'd never met any­ of a local communiry center, the stu­ interest career. one with AIDS and felt that it was dents enlisted the volunteer services of Three student presentations were important to do so, to humanize AIDS 24 other students to provide tax prepa­ part of the Luncheon Series. Winston victims and to help those who can't ration assistance to people living in Henderson '%, spoke of his experi­ afford lawyers," Powell said. Students, the area. All three student leaders will ences working with inner ciry youth in who worked in pairs, saw a total of return in 1994-95 so VITA is expected New York Ciry teaching survival skills. around 15 clients this academic year, to remain a viable alternative for public Linda Sauer '94 and James Smith '94 while Powell personally had about 12 service. shared a program during which they clients this year. discussed their summer experience in Under McAllaster's professional learning Over lunch legal services offices. Sauer worked on supervision, students helped HN and The Luncheon Series was started the Navaho Indian Reservation and AIDS patients write their wills, living as an effort to create a public interest Smith worked on voting rights litiga­ wills, traditional powers of attorney, communiry to give people the opportu­ tion in eastern North Carolina. Jessica and health care powers of attorney, niry to discuss public interest issues as Buranosky Lee '94, James Knudsen '94 which designate a person to make a group. Spruill remarked that it repre­ and Carolyn Kimbler '94, who spent health care decisions when the patient sents "an open classroom studying pub­ three years working with the Guardian is no longer able to communicate. lic interest issues." During 1993-94, ad Litem program, spoke of their expe­ Fortunately, many of the student vol­ there were 14 different events in one of rience serving as friends, confidants unteers for the AIDS Wills Project are three formats: speakers from the com- and representatives of abused and VOLUME 12 , NO.2 23

neglected children going through the Durham County court system. Year-End Recognition In addition to all their Law School reading, students involved in the book The Duke University School of Law recently honored the 225 students who club made a commitment to read volunteered their time to public service this year and the 93 supervisors who par­ books that dealt with public interest ticipated in this year's Pro Bono Project with a reception and awards presenta­ issues. During 1993-94 four books tion. The awards presentation, which featured remarks by Dean Pamela Gann, were read and discussed. James Smith included the following: '94 led a discussion on Faces at the • Chris Leobsack '%, whose undergraduate studies focused on soil agron­ Bottom ofthe Well-The Permanence of omy, received the Most Perfect Award for a project to study pollution of ease­ &zcism by Derrick A. Bell. The discus­ ments by utility companies. sion on Prayingfor Sheetrock by Melissa • North Carolina assistant attorney general David Kirkman and students Fay Greene was led by Carol Spruill. Randy Lehner '%, Jon Lurvey '% and Jim Levy '% received the "Don't Call Me" John Coburn '95, who has done exten­ Award for their work on a fraud case against telemarketers from Las Vegas. sive work with educational issues, led a • North Carolina State Legal Services managing attorney Carlene McNulty discussion on Savage Inequalities­ and student Loren Montgomery '% received the "We Are Not Too Chicken to Children in America's Schools by Jona­ Take You On" Award for work on a class-action lawsuit on behalf of Hispanic than Kozol. The fourth book in the poultry industry workers. series was The Alchemy of&zce and • Awards for unusual projects were given to students Kristi Olson '96 for Rights-The Diary ofa Law Professor by developing Duke University Medical Center policies and procedures for treat­ Patricia J. Williams. Deb Kuhn '94 and ment of obese patients; to Marja Lutsep '95 and Rick Sherley '95 for incorpora­ Mary Johnson '% led the discussion. tion of the Magnolia Opera Co. and contract drafting for the American Dance Plans are already underway for the Festival; to Brian Hurowitz '96 for research on questions about North Carolina book club for 1994-95. Six books have obscenity laws for ManBites Dog Theater; and to Jennifer Slone '% and her been selected for discussion and Kristi supervisor Stewart Fisher for research on stand-by counsel issues in the Philip Olson '% will lead the first discussion Berrigan case. on Within Our Reach: Breaking the • Students Tania Dyson '95, Craig Lair '95 and Shannon Geishler '% were Cycle ofDisadvantage by Lisbeth B. recognized for revitalizing the Volunteer Income Tax Assistance program with Schorr. Other books to be discussed Operation Breakthrough. include Black Robes White Justice, Bruce • Student Andrea Williams '95 was honored for starting a new group, Wright; Making All the DifJerence­ Families of Murdered Victims Assitance Program. Inclusion, Exclusion and American Law, • Sam Staight '% accepted congratulations on behalf of all the students in Martha Minow; The Broken Contract: the new Custody Investigation Program started by Durham County District A Memoir ofHarvard Law School, Court judge Richard Chaney. Richard D. Kahlenberg; Sexual • James Knudsen '94, James Smith '94, Elizabeth Catlin '94, Sue Abbott Violence: Our ~r Against &Zpe, Linda '94 and West Powell '94 were honored for their contributions and years of ser­ A. Fairstein; and Dead Man Walking: vice to the Duke and Durham communities. An Eyewitness Account ofthe Death Penalty in the United States, Helen Prejean. programs, employment, housing, edu­ who represented clients in unemploy­ Poverty Law Seminar Added cation, community economic develop­ ment hearings won their cases. The The Poverty Law Seminar pro­ ment, and family law. The students Poverty Law Seminar will be taught vided the most formal classroom expe­ received skills-training in client inter­ again in 1994-95. rience and the most in-depth viewing, problem-solving and how to By developing good public service exploration of issues related to poverty represent non-profit corporations. The habits during Law School it is hoped and the inadequacy of access to justice course was partially clinical in nature in that students will see the value of for the poor. Limited to 21 students that each student worked on a specific public service and the importance of and taught by Carol Spruill during the case for a client and wrote a 20-30 page making time in their careers for public spring 1994 semester, the two-hour paper on the experience. One student service. course covered many substantive areas won a Social Security hearing for a including health, food and income client with AIDS and four students Debbie Selinsky and Cynthia Peters 24 DUKE LAW MAGAZINE / SUMMER /994

New Research and Writing Program

his summer, the Law School introduced a new Legal T Research and Writing program of instruction. The program, which was designed by a faculty committee during the 1993-94 academic year, evidences the Law School's continued commitment to writing and research excellence. Theresa A. Newman Glover '88, who will continue to serve as edi­ tor and supervisor of the Law School's various journals, was named director of the program and Janet Sinder, the Law Library's head of information services, Theresa Glover Janet Sinder George Gopen was appointed director of research. In the past, the Law School's first­ year research and writing course was the course, linking specific research students learn how to be creative in bifurcated into a research component goals with writing tasks. The research constructing a variety of interpretations and a writing component. The library and writing instructors are paired for of a given piece of prose; in their writ­ teaching staff instructed students in each section of students, providing ing course, they learn how best to limit research methodology the first six an opportunity for team-teaching or the number of interpretations of their specialized instruction throughout the prose that others will be able to make. now year-long course. To further sys­ The new program also provides The new program integrates tematize the teaching of legal research ample opportunity for revising drafts the research and writing and writing, all instructors will employ and critiquing classmates' work, both a single instructional methodology­ of which will encourage thoughtful components of the course, one that provides a common vocabu­ analysis, informed redrafting and audi­ lary and teaching approach. ence awareness ("reader reception"). linking specific research At the request of the faculty com­ goals with writing tasks. mittee, Dr. George Gopen, director of The new program concen­ the Duke University Writing Program, agreed to serve as consultant to the trates not on how writers weeks of the semester, and then the Law School's program and to train the writing instructors-tenured or tenure­ instructors in the teaching methodol­ can go about fulfilling writing track members of the faculty-guided ogy he helped establish. Gopen's meth­ assignments, but rather on the students through a variety of writ­ odology is informed by the "reader ing assignments for the remainder of expectation theory," the theory that how readers go about inter­ the fall semester. While this faculty­ clear and effective writing can be intensive approach has been a hallmark taught by meeting the reader's expec­ preting a finished document. of the Law School's first-year program, tations-at the word, sentence, para­ the new program promises to provide graph and document level. The new The intertwined research and writing a more unified experience and greater program concentrates not on how tasks additionally promise to enhance opportunity for classroom and individ­ writers can go about fulfilling writing retention of research skills and promote ualized instruction. assignments, but rather on how readers more effective research strategies. The new program integrates the go about interpreting a finished docu­ Professor Katharine Bartlett, senior research and writing components of ment. In their substantive courses, the associate dean for academic affairs and VOLUME 1 2. NO.2 25

a member of the faculty committee couldn't be more delighted with the benefit from the continued involve­ that recommended the new writing blend of academic strength and first­ ment in 1994-95 of Professor Thomas program to the faculty, is highly enthu­ rate practical experience our instruc­ Rowe, who will be assisting in the siastic about the changes and about the tors bring to the program." greater integration of computer tech­ quality of the new staff. "We thought The new program will be super­ nology into legal research and writing the market would be strong and we vised by a faculty committee and will instruction.

Diane Dimond Allison Rice Jane Wettach

The Writing Instructors

The new program will be greatly enhanced by the efforts of the three new writ­ eight years, the last several of which as managing attorney. Most recently, Rice ing instructors who joined the program over the summer in preparation for teach­ has served as consultant to Legal Services of Southern Piedmont, Inc. , and as ing the incoming class. The instructors have extensive practice experience in both contract at torney with Ferguson, Stein Law Offices also in Charlotte. the private and public sectors. Diane Dimond, a 1977 graduate of Harvard Law Jane Wettach , a1981 graduate of the University of North Carolina School of School , has specialized in commercial litigation for more than 15 years . Since Law, began practice as staff attorney with the Legal Aid Society of Northwest 1984, she has practiced with Poyner & Spruill in Raleigh , where she was named North Carolina in Winston-Salem. After several years, Wettach joined East a partner in 1987. Central Community Legal Services in Raleigh, where she most recently served Allison Rice, a 1984 graduate of Boston University School of Law, practiced as senior attorney with an emphasis in education and employment law. with Legal Services of Southern Piedmont, Inc., in Charlotte, for approximately 26 DUKE LAW MAGA Z INE / SUMMER 1 9 9 4

Successful Training Program for Taiwanese Judges

or three weeks in May, Duke Law School ran a successful judi­ Fcial training program for four judges from the Court of Appeals of Taiwan, R.O.C. The group was led by Judge Jiin-Fang Lin, who received her LL.M. (,84) and S.J.D. ('89) degrees from Duke Law School. In addition to Judge Lin, Judges Ching-You Tsay, Chiang-Hsiang Lin and Ching-Yuan Wu also attended the program. Program director Carolyn McAI­ laster, senior lecturing fellow at the Law School, described the goal of the train­ ing: "The judicial administration of Taiwan is interested in obtaining a comprehensive view of the operation Taiwanese judges enjoy Duke's hospitality. From left, Chiang-Hsiang Lin, Ching-Yuan Wu , Jiin-Fang Lin , Carolyn of the trial courts in the United States McAiiaster, and Ching-You Tsay. on the state and federal levels in order to evaluate possible changes in the Taiwanese judicial system." detailed notes on the duties of the Sara Sun Beale to learn about federal judges and case management systems. criminal procedure, with Professor Studying the Courts They particularly liked the system of Herbert Bernstein to learn about the Since there are no jury trials in having the attorneys submit proposed German system of having rwo layper­ Taiwan, the judges were impressed with findings of fact and conclusions of law. sons and a judge sit on some cases, the American commitment to trial The judges were here on an elec­ with Professor Thomas Metzloff to by jury and with the amount of time tion day, and were quite intrigued by hear about alternative dispute resolu­ devoted to such trials. They watched a the North Carolina system of electing tion, and with Carolyn McAllaster to criminal and civil jury trial and an arbi­ judges from the trial level to the state learn about federal civil procedure. tration in the state courts. They met supreme court. In Taiwan, judges must extensively with the state trial judges take an extremely competitive exam On th e Road and the arbitrator presiding over these following law school in order to sit on Towards the end of their second trials. They also had briefing sessions the bench. week in the United States, the judges with several Durham County court In the federal system, the judges went on the road, traveling first to officials including the district attorney, observed part of a civil case before Washington, D.C. They toured the trial court administrator, clerk of court United States District Court Judge Earl Supreme Court, and visited with Yanlei and the arbitration coordinator. The Britt, and met with Judge Britt. They Wu '88 at Sidley & Austin. They also judges observed arguments in the also had briefings with the chief assis­ spent an afternoon at the Federal North Carolina Supreme Court and tant to the United States attorney for Judicial Center learning more about Court of Appeals, and met with the the Eastern district, Wayne Rich, and our federal court system during sessions clerk of the Supreme Court, Christie with the United States District Court arranged by William Eldridge '56, the Speir Cameron, and the associate direc­ clerk of court, David Daniel and mem­ Center's director of research. The week­ tor of the Administrative Office of the bers of his staff. end was spent seeing the sights of Courts, Dallas Cameron. While in Durham, the judges took Washington and taking lots of pictures. In each of these sessions, the advantage of the expertise on the Duke On Monday it was on to Rich­ judges asked questions and took Law faculty and met with Professor mond, Virginia, where the judges VOLUME 12 , NO.2 2 7

visited the Dalkon Shield Trust and tion courtroom of the 21 st cen tury at and even managed some shopping. were briefed by Mike Shepard, director William & Mary Law School. After leaving Durham, they were off of the Trust. After stopping off at the By the end of the program, the for a week's vacation in Boston, New Fourth Circuit, they headed for Wil­ judges had received and digested exten­ York, Chicagxo and San Francisco. liamsburg, where in one day they went sive information about our state and from an 18th century courtroom in federal trial courts. Through their gra­ Carolyn MeA/laster Colonial Williamsburg to a demonstra- ciousness, they made many new friends

Changes in Career Services Office

xciting things are devel­ oping in the Career EServices area! Ninety percent of the May 1994 graduates had full-time legal employment as of Graduation Day, proving that the Career Services Office has been very successful. The Law School has set ambitious goals for its Career Services operation, and given the changes in the legal profession and the economy, the decision was made to expand the professional career New Career Services space provides comfortable seating . Along the far wall , computers counseling staff and the array Robert Smith will be available to assist students' job searches. of services offered. A national search for a new director with a Juris Doctor degree Smith became in-house litigation excellent work with students. She has and law-related experience has been counsel for a Fortune 500 company also represented Duke well on the completed, and Robert E. Smith is the in New York. national level, serving on the Board Director of Career Services beginning Most recently, Smith has been of Directors of the National Associa­ July 5, 1994. Smith's experience will an attorney placement consultant in tion of Law Placement. On-campus enable him to nerwork effectively with Washington, D.C. He was a founding recruiting will continue to be coordi­ potential employers as well as counsel partner of the legal search firm that was nated by Sandra Peters, who also law students abour career planning in selected as the best in Washington and manages the extensive database of the changing legal employment market. one of the top ten in the nation by employers. Robert Smith began his legal The American Lawyer. He will bring to The Career Services suite in the career as a clerk to the Honorable Duke almost 10 years of experience in new Law School building addition is George Barlow, then ChiefJudge, recruiting, client development, job roughly six times larger than its old United States District Court for the search training, and attorney place­ space. The new suite features com­ District of New Jersey. He then worked ment. puters for students to use for career four years as a litigator at Curtis, Cynthia Peters will remain on the search purposes, an expanded resource Mallet-Prevost, Colt & MosIe, a large professional staff as assistant director library, and soft seating and a hospital­ law firm in New York. Following that, of career services, and will continue her ity area for employers and recruiters. 28 DUKE LAW MAGAZINE / SUMMER 1994

Fourth Annual Siegel Competition

record 16 teams competed in the Fourth Annual Rabbi A Seymour Siegel Memorial Moot Court Competition held at the Law School February 25-27, 1994. Schools from the Universiry of Maine to Cumberland School of Law (in Birmingham, AL) and from Chicago­ Kent to William & Mary sent students to the competition. Although Duke does not field a team in order to avoid appearances of impropriery, Duke Moot Court Board members are actively involved in developing the problem and administering the competition. Funded by alumnus Allen G. Siegel '60 in memory of his brother, Pictured following the 1994 Siegel Competition are, from left to right, Justice Robert Benham, Lee Childs and Lynn the competition focuses on problems Barrett (the runners-up from Cumberland Law School), Chief Judge Gerald Tjoflat '57, Allen Siegel '60, Margaret involving medical or legal ethics. This Underwood and Renee Martin (the winners from Villanova Law School), and Professor Rhoda Billings. year, students argued the constitution­ aliry of a statute banning assisted sui­ Georgia Supreme Court, and Professor Many Duke alumni volunteered cides as applied to a disabled person. Rhoda Billings of the Wake Forest to serve as judges for the preliminary Arguing before the distinguished final Law School (former justice of the rounds. A list of volunteers follows. argument panel of Chief Judge Gerald North Carolina Supreme Court), the The Law School is extremely grateful Tjoflat '57 of the Eleventh Circuit, team from Villanova prevailed over for their generous donation of time. Associate Justice Robert Benham of the Cumberland.

Volunteer Judges for the 1994 Siegel Competition

Cynthia Adcock-Steffey '91 Roger M. Cook '84 Charles R. Holton 73 Scott M. Pritchett '92 Robin Anderson William Cotter 79 David R. Hostetler '90 John M. Reagle '91 Elizabeth Armstrong Lauren Dame Celia Grasty Jones '90 David M. Rooks 76 Brenda C. Becton 74 E. Lawrence Davis, III '63 Jodee Sparkman Larcade Patrick M. Rosenow '84 Victoria Bender Christine Witcover Dean 71 Susan McAIl ister Robert Schapiro Gary K. Berman 75 Douglas F. DeBank '62 Amy Shaw McEntee '91 Agnes Schipper Richard S. Boulden '86 F. Joseph Diab '92 Pressly M. Millen '85 Stuart M. Sessoms, Jr. 74 William J. Brian, Jr. '89 Allyson K. Duncan '75 William E. Moore, Jr. '81 Steven M. Shaber 76 Brian Brown Rene Stemple Ellis '86 Claire L Moritz '80 Marlene Spritzer David T. Buckingham '83 Richard W Evans '82 Robert J. Morris '88 Juliann Tenney 79 Marianna Burt Richard W Farrell Patrick Oglesby Michael E. Weddington '73 Joan Harre Byers '74 Robert C. Glesener '86 Timothy J. O'Sullivan '90 Richard N. Weintraub '76 Kevin Capalbo Paul M. Green '85 Robert F. Page '69 Thomas R. West 79 Rick Castiglia EI izabeth A. Gustafson '86 Elizabeth S. Petersen 72 Richard N. Cook '89 Thomas A Harris 71 John D. Prather '88 THE DOCKET 30 DUKE LAW MAGAZINE / SUMMER 1994

William H. Grigg '58 Right Man for the Right Time

here is an ancient Chinese with his fellow employees. curse that, roughly translated, He has steadily climbed T says, "May you be born in a the ranks of Duke Power, time of great change." For the electric serving variously as vice utility industry in the United States, president of finance, now is such a time. The man chosen to general counsel, senior lead Duke Power Company, the vice president oflegal nation's seventh largest electric utility, and finance, vice president through this difficult period is William of customer service and H. Grigg, chairman and CEO and a vice chairman. 1958 graduate of Duke Law School. In April, Grigg suc­ The question is how will Grigg use ceeded Bill Lee as chair­ his legal training and financial skills man and CEO. At a news to weather this time of great change? conference announcing Grigg's appointment, Lee Laying the Groundwork said, "Bill [Grigg] is very Bill Grigg, a native of Shelby, bright. He has a high level North Carolina, attended Duke Uni­ of energy. His vision is versity as an undergraduate through way out ahead. He's a nat­ 1954. He spent two years in the ural leader.... Yet he feels Marine Corps then returned to Duke just as much at home in to get a law degree. Grigg practiced law a pick-up truck on a ser­ vice run as he does in the boardroom." At Duke Power, Grigg has earned a reputation as an Change Lee, an engineer by William H. Grigg '58 intelligent, hard-working training, presided over manager who gets along well Duke Power in an era of rapid construction of new power tricity in territories of varying size. with his fellow employees . ... plants and growth in employees and Their only real competition has been customers. But Grigg's job will be con­ from natural gas utilities, and only then "[HJe feels just as much at siderably different. There will be no in areas where gas lines run. Utility home in a pick-up truck on more building of big power plants, the profits have been assured, and also lim­ workforce will have to be trimmed, ited, by state regulatory commissions. a service run as he does in and the steady addition of new cus­ The industry has attracted stolid types tomers is by no means assured. Duke who might best be characterized as the boardroom. " Power, and electric utilities as a whole, risk-avoiders, certainly not entrepre­ are entering a new era in which they neurs who thrive in a competitive in Charlotte for four years, then joined will have to get "lean and mean" to environment. Duke Power Company in 1963 as an keep the customers they already have In recent years, technological assistant general counsel. He has been and attract new ones in the face of advances in generating equipment have with the company ever since. growing competition. made it possible for independent, un­ At Duke Power, Grigg has earned For the better part of a century, regulated enterprises to produce elec­ a reputation as an intelligent, hard­ electric utilities have been granted tricity at prices comparable to what the working manager who gets along well monopolies to produce and sell elec- regulated utilities have offered. Further, VO L UME 12. NO.2 3 1

the deregulation fever that swept up alma mater-James Buchanan Duke. the airline, telephone, trucking and Grigg thinks his legal training J .B.'s grand dream was to harness the banking industries in the 1970s and will serve him well in a situa­ power of the rivers of the North Caro­ 80s has now reached the electric utility lina piedmont, electrifY industry, and industry. Federal authorities are consid­ tion where the rules govern­ use the profits to plow back into the ering allowing the creation of a nation­ ing the industry are being welfare of the region. Grigg has been wide power grid, in which power rewritten. His persuasiveness proud to watch that dream come true, producers can "wheel" electricity and to be a part of it. around the nation (and Canada) and and knowledge of the industry Grigg says he's also been proud customers can buy from the lowest may enable him to influence to watch Duke University grow in size bidder. All of this means that utilities and prestige, particularly on the basket­ will face competition from multiple the nature of re-regulation ball court. Grigg is an ardent Blue sources, and will have to trim costs and where others might simply Devil fan, and as a resident of Char­ increase efficiencies to retain their cur­ respond to or fight it. lotte, he was able to get a ringside seat rent customers or even stay in business. at the NCAA Final Four Basketball Championship in April. Grigg also Facing the Challenge to change. I think I can adapt to a very maintains more formal ties to the "At this particular time, Bill Grigg different environment." Grigg thinks University. He serves on the Fuqua is the best person I know of to lead his legal training will serve him well in School of Business Board of Visitors Duke Power," says Robert Koger, presi­ a situation where the rules governing and has served on the Board of Direc­ dent of the North Carolina Alternative the industry are being rewritten. His tors of the Law Alumni Association. Energy Corporation and former head persuasiveness and knowledge of the And he maintains strong friendships of the North Carolina Utilities Com­ industry may enable him to influence from his days at the Law School. "In mission. "I was always impressed with the nature of re-regulation where others 1958, there were only 37 people in my the presentations he made before the might simply respond to or fight it. Law School class," he says. "We were commission as chief counsel. He's got With characteristic modesty, Grigg practically a family, and some of my strong legal and financial skills, which says, ''I'm fortunate that Duke is a very best friends today were ones I made utilities need now more than ever. efficient, low-cost producer of electric­ in that class. " Beyond that, he's a good listener, which ity. Our rates are among the lowest in John ManueL is crucial in a time of change." the industry. The way you win in this Grigg has helped Duke Power environment is to provide better service through tough times before. In 1973, at lower cost." the company was on the verge of bank­ Grigg also hopes to find new ruptcy due to cost-overruns on nuclear sources of revenue from Duke Engi­ power plant construction and dramatic neering & Services Inc., which provides increases in fuel costs for its coal-burn­ engineering, professional and technical ing power plants. Grigg saved the day services worldwide, and Crescent by convincing institutional investors to Resources, Inc., Duke Power's land float $100 million in five-year bonds­ development arm. Those and other this at a time when Duke's bond rating Duke Power subsidiaries earned $24 had dropped from AAA to A and no million last year. Grigg wants to raise other utility was able to sell bonds with that to $100 million by 1998. less than a AA rating. Asked how he feels about stepping The Duke Bond in the fire again, Grigg says, "Every Duke Power Company was started electric utility executive must be willing by the same man who founded Grigg's 32 DUKE LAW MAGAZINE / SUMMER 1 994

Paul S. Nathanson '67 Master of Chaos

"p aul is somewhere between a National Senior Citizens scholar and a street hustler," Law Center, located in says Dr. Richard Peck, presi­ Los Angeles and Washing­ dent of the University of New Mexico ton, D.C., a part of the in Albuquerque. As someone who National Legal Service models himself after the legendary Corp. He held that job community organizer, Saul Alinsky, until 1980. Asked what Paul Nathanson '67 should take that as attracted him to working the compliment it was intended to be. with senior citizens, par­ Dr. Peck was referring to Nathanson's ticularly the elderly poor, latest assignment as his special assistant Nathanson replies, "Ini­ in charge of community relations. tially, it was a gut issue. I Nathanson has used the job to establish would go out to Pershing partnerships between the university Square and see all these and such unlikely groups as Navajo old people pushing their Indians living in isolated rural belongings in a grocery communities. cart. It just didn't seem Dr. Peck has equally high praise right. Once I got into it, for Nathanson's other job as executive I found that substantive director of UNM's Insti tute of Public legal issues are exacerbated Law-a position he has held for more when you are poor and than a decade. "The Institute is Paul's old. The poorer and older creation," the president says. "He you are, the more likely has been responsible for all kinds it is you are reliant on a of activities that have been of great bureaucratic maze like benefit to both the university and the Medicare. Lawyers wrote community." the laws for these pro- Paul S, Nathanson '67 grams and you often need ------The Path a lawyer to interpret them." wide variety of tasks from the training Since graduating from Duke Law In 1979, Nathanson met his wife­ of tax collectors to training of judges. School in 1967, Nathanson has chosen to-be, Marcia Green. She had always Under Nathanson's direction, the a career path unlike that taken by most wanted to practice Indian law, so in Institute's budget has grown from law graduates. He started off in typical 1980, Nathanson resigned as director $200,000 to $1.8 million per year. It fashion as an associate in the tax of the Law Center and moved with has focused on programs designed to department for a major law firm­ Green to New Mexico. Nathanson help New Mexico's culturally diverse O 'Melveny and Myers in Los Angeles. received an assistant professorship at population, and on national projects But he soon molded the job in his UNM and, true to form, expanded in aging and health policy and ethics. activist fashion by opening a pro bono from there to a clinical law program for clinic for the elderly. "I helped the the elderly in the mountains of north­ Involvement elderly poor with things we were ern New Mexico. ''They say the future of America is already doing for our rich c1ients­ In 1983, Nathanson was hired to brown," Nathanson explains. "In that drafting wills, advocating on their run the University of New Mexico's respect, New Mexico is a harbinger for behalf on landlord tenant issues," Institute of Public Law-a job he has the future. We have a large and grow­ Nathanson says. held ever since. The Institute is mod­ ing Spanish-speaking community and a In 1972, Nathanson was hired eled after the Institute of Government large Indian population. We are a labo­ as the first executive director of the at UNC-Chapel Hill, and performs a ratory for new policies and programs." VO L UME 12, NO.2 33

Nathanson's particular concern has relations functions involve the univer­ betterment of the community." been how to get important policy mes­ sity boasting about itself," Dr. Peck Recently, UNM announced plans sages-be it the need to wear seat belts, says. "Paul has actually gone out and to open a Health Sciences Center. or the need to vote-across to a cultur­ helped people in the community, such Nathanson urged key planners of the ally diverse population. "It's not just a that they become our p.r. agents." center, including Dr. Peck, to travel question of putting messages in their As an example, Dr. Peck describes with him around the state and ask New own language," he says, "it's under­ Nathanson's idea of holding seminars Mexicans what they would like the standing how they hear the message." for the members of the Hispano center to do. The process proved suc­ Nathanson has involved the Insti­ Chamber of Commerce on how to bid cessful in more ways than one. "We tute in producing radio pieces that on university contracts. As a result of discovered concerns that rural people are fed to local stations for broadcast would like to see addressed through the throughout the state. These include "I try to make my students center, such as distance learning, and topics such as what to do when a flu programs to get doctors out into the epidemic hits a community. Nathanson aware of the importance of communities," Nathanson says. "But has also sponsored an initiative where­ giving citizens more access we also brought people together who'd by high school students use the local never met each other before--doctors CBC network television station to to the law, " he says, "of and the president of the university, dri­ produce their own news program and translating messages so that ving through the snow to speak to real public service messages. "It's a wonder­ people of different cultures people in rural New Mexico." ful way of empowering the students," Back in Albuquerque, Nathanson Nathanson says. "We've won some and levels of education can set up meetings with legislators and Rocky Mountain Emmys and major understand them and utilize cabinet secretaries to explain what the national awards for the show. Charles center would be doing. "We really sur­ Kuralt even did a 'Sunday Morning' them for their benefit. " prised them," he says. "The president piece on us." was able to say, 'I've been out talking to While directing the Institute, those seminars, a number of small, your constituents and it's clear we need Nathanson also teaches courses in leg­ Hispanic-owned businesses have won to partner with so-and-so on such-and­ islative policy at the UNM School of new business from the university, and such a health care delivery program.' Law. "I try to make my students aware the Chamber, in turn, regularly features We'd obviously taken the time to go of the importance of giving citizens stories on the university in their out and listen to people. The legislators more access to the law," he says, "of newsletter. couldn't say we didn't know what we translating messages so that people of "I'm trying to determine how the were talking about." different cultures and levels of educa­ university can be of more assistance to Asked what has kept him in that tion can understand them and utilize the community," Nathanson says. "It's job for more than a decade, Nathanson them for their benefit." not rocket science-a lot of what needs says, "The subject matter is always to change is just attitudinal. The typical changing, the venues in which we can New Horizons attitude of universities toward their do something to help people are always Because of his demonstrated communities is 'we're here, that should changing . . . . It's hard to get bored." respect for diversity and his accom­ be good enough for you.' Well, maybe But Nathanson readily admits that plishments in community organizing, it's not good enough. I realize that our neither he nor the path he's chosen is Nathanson was asked by the university primary mission is to educate. But our a model for the average law student. president in 1993 to be his special budget is $800 million a year, only "Part of my strength is to take risks, to assistant for community relations. $150 million of which is spent for not think linearly, to understand that Nathanson accepted the position with instruction, so there's a lot more going chaos can be creative. That's not some­ relish, and, as Dr. Peck testified, has on. We should at least ask how the thing most lawyers like." brought real depth to it. "Most public funding we get might be used for the John Manuel 34 DUKE LAW MAGAZINE / SUMMER 1994

William W. Van Alstyne Teaching the Constitution

hen William Van Alstyne expense of his students and teaching. useful to say, 'Well, that's probably entered Stanford Law Teaching is his primary concern." right, but what do you mean by W School in the fall of 1955, Van Alstyne tries to sharpen 'racism,' and where are its manifesta.­ he was certain of one thing: he did not students' minds by challenging their tions, and how do you deal with it want to become a professor. To follow assumptions. "This is a graduate most effectively?' To the extent that in the footsteps of his history professor school," he says. ''And while one is some students get lost, it's a flop. But father, he believed, would be to con­ being trained to be an advocate, it I would like students to walk out of my demn himself to frustration. "My should be like a graduate school in that class feeling that they got something father was a very gloomy person," you're still cultivating people's maturity out of listening to others or to me that Van Alstyne recalls. "And I related his they would not have gotten had they gloom to the fact that he was a history just listened to tapes or read the mate­ professor. His sense of fulfillment was rial or gone to some other lecture." very vague. There was always an uncer­ Some of his students don't walk out tainty whether his teaching made any of his classes so much as they stumble, difference. " dazed by the 50 intense minutes of fast-paced, high-level intellectual dis­ The Professor course Van Alstyne inevitably delivers. Yet by 1959, after brief stints at the California and United States Constitutional Study Departments of Justice, Van Alstyne Van Alstyne is at his best in his found himself teaching law at Ohio perennially oversubscribed upper-level State University. He credits "the course on the First Amendment. This ineluctable pleasure of a good idea and demand is partly attributable to Van other people's clash on their writing Alstyne's reputation as the country's about it" for drawing him back to the foremost expert on the First Amend­ academic life. ment. In addition to his authoritative Today it is difficult to imagine casebook, his vitae boasts 37 articles Van Alstyne as anything but a law William W Van Alstyne on freedom of speech and religion and professor. For 35 years, the last 29 at academic freedom. Student interest is Duke, he has projected the larger-than­ and critical faculties. I try to teach also piqued by the controversial and life persona of a motorcycle-riding, slightly against the grain. Not so much high-profile subjects addressed by the pipe-smoking academic who also hap­ that it will fail or become frustrating, First Amendment, including political pens to be one of the most respected although for some students it does. speech and obscenity. Van Alstyne in­ constitutional law scholars in the But 'against the grain' means to stay in tentionally exposes students to real-life world. "William Van Alstyne is the touch with what students are thinking examples of the speech they abstractly crown jewel of the Duke faculty," says and feeling these days, what their seek to protect. For example, recent long-time faculty colleague and friend predisposition is about a certain area classes have included a tape recording Melvin Shimm. "He embodies all of of the law, and then teach mildly of Two Live Crew's "Nasty as They the virtues that one would hope to find against it." Wanna Be," a recording that was in a faculty member." Van Alstyne val­ "I don't want to fall into a conge­ banned as obscene in Durham as well ues his performance in the classroom as nial discussion in class, where we move as elsewhere. much as his work as a scholar. "It's easy along, all acquiescing in a certain "Some of it's provocative, some of to just try to advance oneself profes­ social view, for example, that we defi­ it's willful. Some of it's probably gratu­ sionally at the expense of teaching," nitely agree that the world is full of itous," Van Alstyne admits. "But in a says Shimm. "Bill is a productive racism, and isn't it awful, and don't we First Amendment course, it's critical to scholar, but he doesn't do it at the need to do x, y, and z. I find it more prepare people to be real lawyers. It's a VOLUME 12, NO.2 35

tremendous mistake to leave out very concrete examples. Students over­ whelmingly want to be understood as open to new ideas, unflinching, toler­ ant. But it's a matter of coming clean as to what we are talking about in fact. You want to lift up the actual facts of some of these cases, particularly in the obscenity area. This stuff is pretty shocking. It's hard to see how it makes much social contribution. But you also ask, 'what is it that makes me want to send these people to prison?' So I would insist that it's not all fun and games." Although a First Amendment specialist, Van Alstyne has published extensively on the topics of equal pro­ Bill Van Alstyne vacationing in the Galapagos Islands. tection, judicial review, constitutional amendment, federalism, and separation continuity of theme or uniformity of and an excellent social reformer," he of powers. ''I've tried over the years principles. You'll just be a better scholar reflects. "The latter reflects a powerful to keep moving on, and finding addi­ if you try to pay attention to all of it commitment to what one regards as a tional things that I hadn't previously over a period of time." more just society. The former will not attended to, rather than merely allow that to be the conttolling force. becoming a superspecialist in the Playing Different Roles If you're an academic, you're required First Amendment," he says. Understanding the Constitution to have a greater sense of documentary ''Anybody who presumes to stay as a whole also helps Van Alstyne main­ integriry, of authenticiry of decision, with constitutional law over a sub­ tain his sense of intellectual integrity. rather than merely social preference stantial period of time has to become "It allows you to determine whether or even your emotion as to in which acquainted with the rest of this docu­ you have an authentic consistency of direction justice lies." ment, with the rest of its history, rather "There are those who see constitu­ than just bits and pieces. No one ought tionallawas simply another lever by to feel comfortable with themselves if "There's an enormous tension means of which you try to bring about a person should walk in and say, 'Well between being an excellent varieties of social change one way or professor, I've just been reading the academic and an excellent the other. But these are instrumental­ Constitution again, and here's a clause ists, opportunists of constitutional law. I hadn't really noticed before. What do social reformer, " he reflects. I had to resolve this early in my career you think about this?' I don't want to 'The latter reflects a powerful and try to come to an understanding reply, 'Well, I actually never thought commitment to what one of my own principles." about that.' Not after 30 years in the "Van Alstyne is a very meticulous field!" he laughs. regards as a more just society. and honest scholar, a scholar of great Appearing well-informed is not his The former will not allow that integrity," agrees George Christie, only reason for studying different areas another long-time Duke law faculry of the Constitution. Rather, he believes to be the controlling force. " colleague. "He is prepared to take that only by studying the many clauses unpopular positions if he thinks they of the Constitution can one under­ position, regardless of the constitutional are intellectually compelled." Most stand the document as a whole. law subject that you're addressing. recently, Van Alstyne has interpreted "There's a chemistry in the document; Otherwise, the likelihood is enhanced the long-neglected Second Amendment there are synergies among the clauses. that you're not an academic anymore; in support of the National Rifle Asso­ The Constitution is likely to become you're becoming an advocate." ciation's essential claim that citizens a very funny document if it is farmed "There's an enormous tension have some genuine personal right to out among specialists who don't see any between being an excellent academic own guns. For those who dislike the 36 DUKE LAW MAGAZINE / SUMMER 1994

results he reaches, he routinely recom­ "So moving in and out of the Hong Kong, China and Japan, they mends constitutional amendment. more litigative or adversarial role is a embarked on a trekking excursion in "The amendment process is a way to partial testing. It's also, actually, much the Himalayas. Closer to home, they bring about changes in a manner in easier in some ways," he says. "You're can often be seen cheering on the Blue which the instrument itself is not vio­ not responsible for trying to get to the Devils in Cameron Indoor Stadium. lated," he says. truth of the matter, you're responsible Van Alstyne's perspective on the Yet for all of his focus on the intel­ for doing the best you can within the Constitution has also been enriched by lectually right result, Van Alstyne also bounds of ethical scruples. Deciding his experiences abroad. He has taught seeks opportunities to test his theories which perspective will prevail and the and given professional papers in Ger­ in practical arenas. He has been presi­ responsibility for getting to the truth of many, Austria, Denmark, the Soviet dent and general counsel of the Ameri­ the matter, that's for the judges or even Union, China, Japan, Canada, and can Association of University Professors the academics. That's much harder." Australia. He was a Fulbright Lecturer and chaired the Association of Amer­ in Chile and a Faculty Fellow at the ican Law Schools's Committee on The Broader Perspective Hague International Court of Justice. Academic Freedom and Tenure. He has Outside the law, Van Alstyne His exposure to other constitutional appeared both as counsel and as amicus greatly enjoys hiking, scuba diving, systems has convinced him that any curiae in a wide variety of constitu­ successful constitution must contain tional cases in the federal courts, certain crucial features. First, the including the Supreme Court, and Van Alstyne considers free amendment process must be relatively in numerous hearings before various speech to be crucial to a civi­ difficult, so that the document can Senate and House Committees on weather shifts in the political winds. proposed amendments to the Constitu­ lized society. ' ~I/ in aI/," he Second, there must be a fair degree tion, pending legislation and constitu­ says, "freedom of speech is of independent judicial review. "It's a tional questions, separation of powers, vastly more important than very simple thing," he says, "but you'd war powers, constitutional conven­ be dumbfounded at how few countries tions, civil rights and civil liberties, and the right to vote. I have no have that modicum of judicial inde­ nominations to the Supreme Court. pendence that's reflected in our Article doubt about it. 11 "Occasionally doing an amicus III." Third, there must be some kind brief lets you check your sense of real­ of habeas corpus clause. "It is certainly ity," he says. "There is an anxiety that and travel, interests he shares with crucial to be able to push a piece of if one confines oneself to the classroom his spouse, Duke Law School Dean paper out between bars to some magis­ -and the captive audiences of stu­ Pamela Gann '73. Together they have trate who literally has the power to dents who are not quite free to express enjoyed trekking the Inca trail, hiking require the military or the executive their own views-and the law journals, in the mountains of Switzerland and department to produce the body of one might risk an artificial kind of her­ the Pacific Northwest, and scuba div­ the prisoner and show just cause for metic scholasticism, away from what ing in the Caribbean, often joined by his detention." legislatures and courts are in fact doing. one or more of Van Alstyne's three Finally, Van Alstyne considers free It's nice once in awhile to do a piece children, Lisa, Allyn and Marshall. Also speech to be crucial to a civilized soci­ of advocacy, to get involved in those sharing a strong interest in the Law ety. ''All in all," he says, "freedom of conversations and experiences and School, when possible they combine speech is vastly more important than to see whether it meshes and whether their adventurous travel plans with the right to vote. I have no doubt you can hold your own and whether trips on behalf of the School as when about it. Because if you can really be it makes any difference, whether it over the past spring break, they visited held harmless for your speech, even if connects to reality-or whether what with an alumni group in Panama and you can't vote, I'm quite convinced that you've been writing or thinking has then vacationed with the help and no regime can exist if it can't silence its become so attenuated, so desiccated, so advice ofJaime Aleman '78. Last critics. Even if nobody votes, a govern­ antiquarian, that you're just some kind summer after visiting Asia, where ment can't stand against sheer ridicule." of quaint curiosity." Gann represented the Law School in Amy Gillespie '93 VOLUM E 12 , NO. 2 37

Faculty News

Bartlett Co-Reporter on Van Alstyne Elected Family Dissolution Project to AAAS Katharine T. Bartle" was appointed William W. Van Alstyne has been in April by the American Law Institute elected to the American Academy of as co-reporter for the Principles of Arts and Sciences, an honorary society rhe Law of Family Dissolution. Her of scholars and national leaders, which co-reporter is Ira Ellman of Arizona conducts studies of current public, Srare University College of Law. This social and intellectual issues. Founded appointment acknowledges Professor in 1780 by a small group of scholar­ Bartlett's substantial reputation in fam­ patriots led by John Adams, the Aca­ ily law, and especially her expertise in demy now has approximately 3,150 rhe area of child custody law which fellows and 550 honorary members. will be her focus of attention in rhe In his latest publication, The Second ALI project. Amendment and the Personal Right to Bartlett has served as senior associ­ Arms, 43 Duke L.J. 1236 (1994), Van ate dean for academic affairs during the Alstyne's analysis of the Second and 1993-94 academic year, and has agreed Fourteenth Amendments of the Con­ to extend her service in the position stitution indicates federal and state gov­ one more year. While holding this ad­ Donald L. Horowitz ernments may not infringe upon rhe ministrative post, Bartlett has remained personal right of citizens to "keep and an active scholar, continuing to publish bear arms," although each may provide in the areas of gender discrimination importance of family, the role of com­ appropriate controls to respond to and feminist legal theoty. passion in Christianity and the signifi­ criminal misuse or abuse. cance of democracy. Hauerwas Named to Chair Horowitz New Wiener Appointed to Stanley M. Hauerwas, who holds James B. Duke Professor Community Service a joint appointment with the Duke Commission Divinity School and the Law School, Donald L. Horowitz has been named has been named the Gilbert T. Rowe to a James B. Duke Chaired Profes­ In January 1994, Jonathan B. Professor of Theological Ethics. In his sorship. He previously held the Law Wiener was named by North Carolina most recent book, Dispatches from the School's Charles S. Murphy Chaired Governor James Hunt to the state's Front: Theological Engagements with the Professorship; this lateral switch to the newly formed Commission on Secular (Duke University Press, 1994), University-wide James B. Duke Chair National & Community Service. Pro­ Hauerwas says he seeks to show read­ was made in recognition of his special fessor Wiener spent the fall of 1993 in ers, especially non-Christians, that God accomplishments as a scholar. An Washington DC, serving as an advisor is much more interesting than Chris­ authority on ethnic relations, democra­ to rhe new National Service program. tians and theologians have managed tization and ethnic violence, Horowitz National Service will award grants­ to make him seem. Toward this end, has spent the 1993-94 academic year largely through the state Commissions Hauerwas combines Christian theology on leave while working on a book enti­ -to support innovative community­ and social criticisms in essays that tled "The Deadly Ethnic Riot." His based service programs that "get things attack what he sees as current senti­ project has been funded by a grant done" by accomplishing demonstrable mentalities about topics such as the from the Carnegie Corporation. benefits for underserved communities 38 DUKE LAW MAGAZINE / SUMMER 1994

in the areas of education, health, safety [0100,000 by 1998), making it many and its Commission is at the forefrom and the environmem; and it will train times larger than the overseas Peace of states working [0 launch Ameri­ service participants in specific skills Corps while more community-based corps. Professor Wiener has also and mutual trust, and offer them edu­ than the federal Civilian Conservation worked [0 organize local community cational scholarships. National Service Corps of the 1930s. Norrh Carolina is service efforts in Bos[On and in Wash­ aims [0 pur 20,000 "Americorps" par­ home [0 a multitude of creative, ener­ ing[On, and is eager [0 be involved in ticipants in the field in 1994 (rising getic community service emerprises, service efforrs in his new home state.

Schmalbeck Receives Distinguished Teacher Award

Richard l. Schmal beck honestly doesn't get it when students praise his class in end-of­ semester reviews as "not bad, for a tax law course," "The first time I read that remark, I thought, That's a little like saying dinner wasn't bad, given that it was lobster. What's his poin!?'" Schmalbeck said in an interview, "The secret is that I've chosen a field that is actually exciting but isn't thought to be so by my students, So I get credit for making it interesting , when it's intrinsically interesting." Schmal beck, known among students for his low-key, conversational teaching style, has obviously made believers out of some Duke law students, They selected him to receive the Duke Bar Association Dis­ tinguished Teacher Award for 1993-94. Schmal beck insists there's no deep secret to what he does with tax law in the classroom, "The best thing aclassroom teacher can do in 50 minutes with students is to add something to the material students have already read, to explain it better, to illustrate it in ways that promote its understanding. This is where I believe a teacher can really make a difference," he Richard Schmal beck (right) is congratulated by Thomas Morey '96, incoming Duke Bar Association president (left) said, Schmal beck added that for many students and Gregory Brown '95, outgoing president (center) , entering law school from majors such as political sci­ ence or comparative literature, courses such as Carolina, where he re-joined Dean Pamela Gann in while most good teachers are doing cutting-edge tax law, while not computational, represent the first teaching tax law courses at Duke, research , good teaching can't be packaged that way," time they've delved deeply into "quantitative" mate­ While his course reviews by students have he said, "So it's reassuring to see university admin­ rial-something that can be a little intimidating or been generally positive over the years, Schmal beck istrators at the intermediate level and higher making uncomfortable, said that he bel ieves he learned even more about the good faith efforts to treat teaching as seriously as The teaching award is especially significant to importance of good teaching during his stint as an SCholarship, " Schmal beck because it comes at the end of his first administrator. "As dean at Illinois, I paid alot of atten­ The DBA Distinguished Teacher Award has year back at Duke after a three-year stint as dean of tion to teaching evaluations. And I've been involved been presented annually since 1985, Previous win­ the Law School at the University of Illinois, He'd been in ABA site evaluations at law schools for the past ners include James Coleman, Thomas Metzloff, on the Duke faculty for 10 years before accepting the three years , , . One major difficulty is that teaching , Melvin Shimm , Sara Beale, John Weistart, James dean's job at Illinois in 1990. He and his family hap­ by nature, is hard to evaluate, We can , as researchers, Cox, Richard Maxwell and Thomas Rowe. pily returned last summer to their adopted North send free-standing pieces around the world, and Debbie Selinsky VOLUME 12, NO.2 39

Law Alumni Association News

he Law Alumni Association be a valuable tool in bringing alumni Alumni Weekend, will address Board of Directors (Board), back to the Law School. It involves "Changes in the Delivery of Legal T the governing body of the Law alumni who want to help generate Services." The Committee suggested Alumni Association (LAA), meets twice interest in the reunion making calls to several panelists: a journalist covering annually to make decisions concerning their classmates to encourage attendance. legal topics to discuss trends in the legal alumni programs at the Law School. community; an attorney from a corpo­ The fall meeting of the Board is held in Educational Programs ration to talk about in-house services conjunction with Law Alumni Week­ The Education Committee of the and how decisions are made to retain end and includes representatives from LAA Board of Directors met in the outside counsel; a consultant to law local law alumni associations. The spring to consider future student/ firms or someone who does lawyer Board business meeting is held in the recruiting; and a man­ spring in conjunction with the Confer­ aging partner from a ence on Career Choices. law firm. The Com­ Following is a report on some of mittee also recom­ the programs considered at the spring mended bringing in Board meeting. representatives from small to medium-sized The Alumni Directory firms to talk to the A newall-alumni directory was students about their mailed last fall to all alumni who paid practices. their Law Alumni Association dues or The Committee made a gift to the Law School during also considered alumni programs for those 1991-92 or 1992-93. (Others may pur­ Terry Richard Kane '86 (far right) talks with law students following the Career chase the directory for $25 by contact­ Conference in February 1994. returning during Law ing the Law School Alumni Office.) Alumni Weekend The Law Alumni Association will alumni programs and programs for and Barristers Weekend. The topics sponsor the next Law Alumni Direc­ alumni and reported to the Board. The reviewed included constitutional law, tory in 1995. Because the directory is LAA continues to sponsor the Career ethics and professionalism, interna­ used by many alumni for referrals, it Conference and Alumn i Seminar for stu­ tional law and regulatory issues. was suggested that specialty areas be dents. Alumni who participate in these Alumni and other friends of the included in the next edition. The Law programs provide information about School returning for Barristers Week­ Alumni Office asks all alumni to keep their careers and experiences, their per­ end in April enjoyed the program, that office informed of all address and sonal choices and lifestyles otherwise "The Office of Legal Counsel, Lawyers phone changes so that the directory not available to students. to the Executive Branch" presented by will be as accurate as possible. Several topics of student interest Jeff Powell and Christopher Schroeder, were recommended for upcoming Duke Law School faculty members Law Alumni Weekend alumni seminars, including govern­ serving as deputy assistant attorney Attendance has been good for Law ment careers, public interest careers, generals, assisting Walter Dellinger, the Alumni Weekend even though Law law firm governance, lawyer satisfac­ assistant attorney general in the Office School alumni are widely dispersed. tion, the economics of law practice, of Legal Counsel. They discussed the The Board agreed, however, that they and client development. The Commit­ responsibilities of the Office of Legal would like to increase attendance at tee agreed to continue to select topics Counsel which include advising Presi­ reunions. At their suggestion, this year that would help students make career­ dent Clinton and Attorney General the phone tree system was implemented related decisions. Reno on the constitutionality of gov­ in the spring instead of late summer. The next seminar, scheduled for ernment actions and congressional bills. The phone tree system has proved to October 6, 1994, just prior to Law 40 DUKE LAW MAGAZINE / SUMMER 199 4

Topics for the program for the Awards CommiHee School's Charles S. Murphy Award upcoming Law Alumni Weekend The Awards Committee recom­ in 1990. were considered. It was suggested that mended Kenneth W Starr '73 to be The Charles S. Murphy Award Professors Robinson Everett and Jeff the 1994 recipient of the Charles S. will continue to recognize alumni Powell could discuss the constitutional Murphy Award and Russell M. Robin­ whose careers have been mainly in pub­ issues involved in the redistricting case, son, II '56 to be the first recipient of lic service, education or public interest Shaw v. Reno, and the experience of the Charles S. Rhyne Award. Starr and practice. arguing the case before the Supreme Robinson will receive their awards at Court. Another recommendation was the all-alumni reception and dinner on New Members the internationalization of law practice, Friday, October 7 during Law Alumni The Board of Directors approved presented by a panel of faculty and Weekend 1994. the new members recommended by its alumni. The Committee asked Dean The Charles S. Rhyne Award, a nominating committee and will wel­ Gann and Associate Dean Pursley to public service award given for the first come them at the fall meeting: pursue ideas and seek other suggestions time in 1994, recognizes distinguished Phil Sotel '62, Pasadena, Califor­ from the faculty. nia; Barrington Branch '66, Atlanta, Georgia; Michael Pearlman '70, SFF Challenge Grant Rochester, New York; Pamela Peters The Student '78, Winter Park, Florida; Karen Jack­ Funded Fellowship son '78, Philadelphia, Pennsylvania; Program (SFF) is a Bruce Baber '79, Atlanta, Georgia; student organization Michele Sales '81, Seattle, Washington; formed in 1977 to Helen N. Grant '84, Columbia, South raise money for grants Carolina; Porter Durham '85, Chat­ to students taking tanooga, Tennessee; and Brent Clink­ summer jobs in the scale '86, Greenville, South Carolina. public sector where they receive little or local Alumni Association Meetings no salary, such as jobs Sharon Carr Harrington '89 (far left) continues discussions with students following During the 1993-94 year several in public interest orga­ the 1994 Career Conference. events were planned in conjunction nizations and public with meetings around the country. defender and legal services offices. SFF alumni in private practice who devote New York City. A large group of contributions are raised from students much of their time to public service alumni enjoyed the annual reception through an annual spring pledge drive. through scholarship, education, pro held in conjunction with the annual The LAA has contributed to SFF bono representation, professional or meeting of the American Bar Associa­ since the 1984-85 academic year (with community affairs, or public service. tion held in New York in August 1993. gifts ranging from $500 to $5,000), The award honors Charles S. Rhyne The reception was hosted by Associate most recently through a challenge '37, who is senior partner in the law Dean Evelyn Pursley '84 and in­ grant. The Board of Directors felt firm of Rhyne & Rhyne in Washing­ coming president of the LAA, Haley that it was important to maintain the ton, D.C. Rhyne has had a distin­ Fromholz '67. student funded orientation of the pro­ guished career as a trial lawyer Orlando, Florida. A reception was gram, so it approved a matching pro­ representing mainly states, cities and hosted by Dean Pamela Gann in Janu­ gram based on the participation rate of counties in cases in federal and state ary in Orlando, coinciding with the student contributors. The Board pro­ courts throughout the U.S., including annual meeting of the Association of posed to donate $2,500 if student par­ serving as lead counsel in the "one American Law Schools (AALS), with ticipation reached 10% of the student man, one vote" case of Baker v. Carr, the help of Jay Whitehurst '82, presi­ body, $4,000 if it reached 15%, and 369 U.S. 226 (1962). He is recognized dent of the local association in Orlando. $5,000 for reaching a 20% participa­ for his lifelong dedication to public Alumni from the area and alumni tion rate with a $5,000 ceiling on the service through a variety of avenues members of the AALS-faculty and contribution. This year the LAA con­ including legal education, the bar and administrators-were invited to attend. tributed $4,500 based on an 18.5% bar associations, the federal govern­ Washington D. C. Professor Walter participation rate. ment and national and international Dellinger, assistant attorney general in institutions, and he received the Law the Office of Legal Counsel, hosted an VOLUME 12 . NO. 2 4 1

alumni reception with local president, David Vaughan '71, in February in Additional Events Facility Host Local Host Washington, D.C. at the Metropolitan ALABAMA Club. Vaughan also hosted a luncheon - Birmingham Dean Pamela Gann John Coleman '81 wi th Dean Gann in May in conjunc- ARIZONA [ion with the annual meeting of the - Phoenix William Reppy Thomas Pickrell '82 American Law Institute (ALI) to which CALIFORNIA alumni from the area and alumni - Orange County David Lange Randall Erickson '71 members of the ALI were invited. - Los Angeles David Lange Phillip Sate I '62 - San Diego David Lange Jan Adler '78 North Carolina. Dean Gann and - San Francisco David Lange Robert Pringle '69 Associate Dean Pursley hosted a recep- COLORADO tion in Myrtle Beach, South Carolina - Denver William Reppy Steven PI issey '84 on June 24 in conjunction with the CONNECTICUT annual meeting of the North Carolina - Hartford Dean Pamela Gann Dean Cordiano '76 Bar Association. FLORIDA Europe. Judy Horowitz, Associate - Ft. Lauderdale Dean Pamela Gann Gail Richmond '71 - Jacksonville Melvin Shimm Lori Terens '80 Dean for International Studies, along - Miami Dean Pamela Gann David Profilet '85 with alumnus Jean-Francois Willame - Palm Beach Dean Pamela Gann Peter Sachs '82 '92, hosted a reception and dinner a[ - Tampa Melvin Shimm Emil Marquardt '65 Willame's family home in Brussels, GEORGIA Belgium in July. This event is held - Atlanta Sara Beale Alfred Adams '74 annually in conjunction with the Law William Van Alstyne Alfred Adams '74 ILLINOIS School's Institute ofTransnational Law. - Chicago Dean Pamela Gann Martin Marta '72 All alumni living in Europe and stu- MASSACHUSETIS dents attending the summer program - Boston Dean Pamela Gann Howard Levin '78 are invited to the dinner, which pro- MARYLAND vides an opportunity to meet infor- - Baltimore Dean Pamela Gann Mitchell Kolkin '76 mally with both Duke Law School NEW JERSEY faculty members and the international - Newark Dean Pamela Gann Glenn Tucker '80 faculty teaching at the program. The NEW YORK - New York Robinson Everett Valerie Schwarz '83 July event had over 90 people in NORTH CAROLINA attendance. - Charlotte Dean Pamela Gann John Miller '75 The local law alumni associations - Durham Sara Beale James Maxwell '66 help to maintain a sense of community - Greensboro Tom Metzloff Gary Beaver '82 and identity with [he Law School and - Raleigh Sara Beale Renee Montgomery '78 among our alumni. The Law Alumni - Winston-Salem Dean Pamela Gann Bill Blancato '83 OHIO Office tries to send Dean Gann or a - Cleveland Dean Pamela Gann Jim Rydzel '71 faculty member to host an event at OREGON least once a year with each local asso- - Portland Melvin Sh imm Ronald Hoevet '75 ciation. The Law School host shares PENNSYLVANIA information on the state of the School, - Philadelphia William Van Alstyne Michael Sholtz '88 current faculty projects and other items SOUTH CAROLINA that may be of interest to alumni. In - Charleston Dean Pamela Gann Sidney Boone '64 addition to the events noted above, TEXAS - Dallas Dean Pamela Gann Jeffrey King '80 other local association events were - Houston Dean Pamela Gann Marjorie Schultz '80 held this year (see box) with the help VIRGINIA of the local association president or an - Richmond Thomas Metzloff John Patterson 72 a1umnus/a from the area. WASHINGTON If you would like more informa- - Seattle David Lange Michele Sales '81 tion about any of these programs, BELGIUM please contact the Law Alumni Office - Brussels Judy Horowitz Jean-Francois Willame '92 at 919-613-7013. 42 DUKE LAW MAGAZINE / SUMMER 1994

Upcoming Events

August 8, 1994 ABA Meeting Reception October 6, 1994 Alumni Seminar October 7, 1994 Board of Visitors Meeting October 7, 1994 Law Alumni Association Board of Directors Meeting October 7-8, 1994 Law Alumni Weekend 1944, 1949, 1954,1959,1964 1969,1974, 1979, 1984,1989 April 7-8, 1995 Building Dedication Barristers Weekend Board of Visitors Meeting May 13, 1995 Graduation Reception May 14, 1995 Degree Awarding Ceremony October 13-14, 1995 Law Alumni Weekend 1945, 1950, 1955,1960, 1965 1970, 1975, 1980, 1985, 1990

Professors Chris Schroeder (left in background) and Jeff Powell lead adiscussion about "The Office of Legal Counsel , Lawyers to From left above, the Executive Branch" during Barristers Weekend Robinson Everett '59, in April 1994. Both Schroeder and Powell served Kenneth Starr '73 and as deputy assistant attorneys general at the Jefferson Powell chat Justice Department during 1993-94. during Barristers Weekend 1994.

LAW ALUMNI WEEKEND October 7-8, 1994

Friday, October 7, 1994 Saturday, October 8, 1994 11 :00 - 5:00 PM Registration Desk Open at Law School 9:00 AM - 2:00 PM Registration Desk Open at Law School 12:00 -1 :30 PM Student/Alumni Luncheon, Law School 9:00 AM Coffee and Danish, Law School 2:00 PM Law Alumni Association Board of 10:00 AM Continuing Legal Education Program, Directors Meeting, Law School Law School 7:00 PM All Alumni Reception and Dinner 1200 noon North Carolina Barbecue, Law School Lawn Alumni Association Meeting, 1:30 PM Golf at the Washington Duke Golf Course Washington Duke Inn 2:00 PM Duke University Primate Center Tour 9:00 PM Hospitality Suite open at Washington Duke Inn 2:00 PM Duke Gardens Tour 7:00 PM Class Dinners - Various Locations 9:00 PM Hospitality Suite Open at Washington Duke Inn REUNION COORDINATORS

Law Class of 1949 Charles Speth Law Class of 1964 Kenneth Biehn Law Class of 1979 Valerie T. Broadie 45th Year Reunion Marion, South Carolina 30th Year Reunion Doylestown, Pennsylvania 15th Year Reunion Silver Spring, Maryland 803-423-7648 215-348-6066 202-806-4956 Law Class of 1954 William Kaelin Law Class of 1969 David G. Klaber Law Class of 1984 Sol Bernstein 40th Year Reunion Fairfield, Connecticut 25th Year Reunion Pittsburgh, Pennsylvania 10th Year Reunion New York, New York 203-255-5455 412-355-6498 212-602-1511 Law Class of 1959 Law Class of 1974 Philip Moise Law Class of 1989 Susan Prosnitz 35th Year Reunion 20th Year Reunion Atlanta, Georgia 5th Year Reunion Boston, Massachusetts 404-527 -4380 617-343-4550 VOLUME 12, NO.2 43

Gifts to the law School

Funds to Support Adoption mination of the three annu­ Conference ities, the funds will be added Dr. Joseph A. Puma of to the Law & Contemporary Galax, Virginia, recently Problems Endowment Fund. donated funds to support the Sanders was associate editor of conference, "Defining Family: Law & Contemporary Problems Adoption Law and Policy" at from 1937 to 1946, and he Duke Law School on April 8-9, comments that L&CP's 1994. The conference was spon­ "approach to better under­ sored by the new interdiscipli­ standing of a significant law­ nary student publication, Duke related problem attracted me Journal ofGender Law and from the very beginning. Policy. Student organizers of the I want to help keep a publica­ conference included Elizabeth tion like this doing its job." Catlin '94, Wes Powell '94 and Michael Sorrell '94. Thompson & Knight Law The keynote address was Scholarship Endowment delivered by Harvard Law Members of the firm School professor Elizabeth Thompson & Knight of Bartholet, author of Family Dallas, Texas, have established Bonds: Adoption and the Politics a need-based scholarship fund ofParenting. She spoke on the for the Law School. Those impact of biological bias on alumni participating in the adoption practices and repro- scholarship gift include: Mar- Pau I H. Sanders ductive technology. Other issues garet S. Alford Loomis '78, discussed at the conference were Cheryl E. Diaz '87, Sharon M. the 'Baby Jessica' case, interdisciplinary director of the Cardiac Catheterization Fountain '82, M. Lawrence Hicks, Jr. adoption issues, gay and lesbian adop­ Services of Southeastern Regional Med­ T'67, David E. Morrison '77, James R. tion, and trans racial adoption. The ical Center of Lumberton, North Caro- Peacock '82, and Joe A. Rudberg T'68. conference considered some of the lina, also made a gift to the conference. Matching funds from Thompson & most important issues in family law Knight were also added to the fund. and was a tremendous success for Sanders Gift Annuity #3 Dean Pamela Gann especially faculty, students and the surrounding Paul H. Sanders '34 has estab­ thanked Lawrence Hicks for his leader­ community. It accomplished Dr. lished a third annuity to benefit Duke ship in establishing the gift. "He and Puma's goal of obtaining serious atten­ Law School. Sanders taught at Duke his colleagues understand the impor­ tion for the public policy and legal Law School for 10 years, from 1936 tance of scholarships to matriculate issues about adoption, and it provided to 1946. During World War II, he talented students regardless of their a platform for the successful inaugura­ worked with the National War Labor personal ability to attend Duke. It has tion OC the new Journal ofGender Law Board and served in the U.S. Navy. also been fairly unusual for graduates and Policy. He returned to the classroom in 1948, in law firms to come together to make Dr. Puma specializes in cardiovas­ teaching law at Vanderbilt University a restricted gift to their law school, cular medicine at Twin County Medi­ in Nashville, Tennessee until the late and these alumni have established an cal Associates in Galax, Virginia, and is 1980s. important donor precedent for others a consulting associate in the Division In 1990, Sanders established to follow." of Cardiology at the Duke Medical the Paul H. Sanders Charitable Gift Center. Dr. Stephen H. Royal, medical Annuities No.1 and No.2. Upon ter- 44 DUKE LAW MAGAZINE / SUMMER 1994

1994 Currie Lecture

rofessor ErnestJ. Weinrib of temporary legal scholarship. These arti­ demic in memory of Professor Brainerd the University of Toronto Law cles on private law have culminated in Currie who was a member of the Duke PFaculty presented the 1994 a fresh statement ofWeinrib's view in Law faculty in both the late 1940s and Brainerd Currie Memorial Lecture a book which is forthcoming this year early 1960s. Recent lecturers include on March 18, 1994. His topic was from Harvard University Press entitled Margaret Jane Radin of Stanford "Gains and Losses Under Corrective The Idea ofPrivate Law. University, Peter Schuck of Yale Law Justice." Professor Weinrib, whose The Currie Lecture is presented School, and Lea Brilmayer, now at scholarship and teaching have concen­ each spring by a distinguished aca- New York University. trated on tort law, legal theory and Roman law, also taught a special class at the Law School on "The Fetus as Aggressor: Abortion, Self-Defense, Canadian law Conference Interpretation & Jewish Law." Professor Weinrib is best known for a series of influential articles written over the past decade on the nature of

In April , the Law Library in conjunction with the Duke Canadian Studies Center sponsored its fourth invitational conference on Canadian Law and Legal Literature at the Aqueduct Conference Center near Chapel Hill. The theme for 1994 was "Canada and the World," The keynote address on Canada's interna­ Ernest J. Weinrib tional trade policy and NAFTA was given by Professor Armand deMestral of the law facaulty of McGill University, Other speakers included Stephen Clarke of the Library of Congress Law Library on US and Canadian free trade; Claire Germain of Cornell Law School on NAFTA; Benedict Kingsbury of the Duke Law private law. Taking tort law as their faculty on trade and the environment; and Patricial Young of McGill on electronic sources of legal infor­ central example, these articles attempt mation in Canada, to defend a version of classical legal Pictured are, from left, Duke Law Professor Richard Danner, co-organizer of the conference; Claire thought-a style of thought about law Germain, Edward Cornell law librarian and professor of law at the Cornell Law School (and former asso­ which Weinrib sees as coming under ciate library director at Duke); Professor Armand deMestral of McGill Law School in Montreal; and P~tricia threat in the predominant (and largely Young, law librarian at McGill. instrumentalist) assumptions of con- VOLUME 12 , NO.2 45

Professional News

'37 Farley Hunter Sheldon is the ,/.19 Reunion plans are underway for organization is limited to 600 trial development and personnel Lf the Class of '49. Law Alumni lawyers, barristers, judges and law pro­ director of the Rocky Mountain Insti­ Weekend will be October 7 & 8, 1994. fessors in the United States, Canada, tute in Snowmass, Colorado. Details have been mailed. Please contact New Zealand, England, Belgium, the Law Alumni Office at 919-613- Luxembourg, Sweden and Puerto Rico. 7013 or 613-7017 ifyou have not '39 Will iam F. Womble, partner leila Sears reports that she is enjoying with Womble, Carlyle, Sand­ received the information or ifyou have her retirement in North Pomfret, Ver­ ridge & Rice in Winston-Salem, has any questions. mont. She previously was assistant been named chair-elect of the Senior Charles F. Blanchard , senior member vice president of the American Kennel Lawyers Division of the North Caro­ of the Raleigh, Club. lina Bar Association. North Carolina firm of Blan­ '50 Nathan H. Wilson has been '44 Reunion plans are underway for chard, Twiggs, honored by Florida Com­ the Class of '44. Law Alumni Abrams & Strick­ munity College at Jacksonville, which Weekend will be October 7 & 8, 1994. land, has been is constructing the Nathan H. Wilson Details have been mailed. Please contact elected president Center for the Arts. He was chair of the the Law Alumni Office at 919-613-7013 of the Interna­ College's Board of Trustees from 1984 or 613-7017 ifyou have not received the tional Society of to 1989. Charles F. Blanchard '49 information or ifyou have any questions. Barristers. The

Hardin Receives Honorary Degree

Paul Hardin , III '54 was awarded an honorary degree by Duke University during the May 8, 1994 commencement exercises. Hardin, who is the chancellor of the University of North Carolina, received the doctor of humane letters award from Duke President Nannerl Keohane, who noted that, "Duke University is proud to honor you, for your work as a teacher, as a criminal-justice scholar, and as a university president and champion of higher education whose professional life has been characterized by your devotion to integrity and fair play." President Keohane further commented that Hardin's "career in higher educa­ tion has been an impressive demonstration of what can be accomplished through creative approaches to academic programs and unswerving dedication to high principle, .. . You have headed the state system's flagship institution with skill, diplomacy, humor and vision through a major fund-raising effort and the bicen­ tennial celebration of the opening of our country's first state university." Hardin received both his undergraduate and law degrees at Duke, serving as an editor of the Duke Law Reviewand Singing in the Duke Chapel Choir. He taught at the Law School from 1958 to 1968 and served as aUniversity trustee from 1968 to 1974. Before becoming chancellor at UNC in 1988, Hardin, a Charlotte, North Carolina native and a U,S. Army veteran , was president of Wofford College in Paul Hardin III '54 Spartanburg, South Carolina from 1968 to 1972; of Southern Methodist University from 197? to 1974; and of Drew University in Madison, New Jersey from 1975 the United Methodist Church and aformer chairman of the Legal Services Review to 1988. Panel of the National Association of Independent Colleges and Universities. The Active both in local and national educational and professional organizations, first chairman of the Durham Human Relations Council , Hardin continues to serve Hardin is a past president of the National Association of Schools and Colleges of as co-chairman of the Japan-US, Conference of University Presidents. 46 DUKE LAW MAGAZINE / SUMMER 1994

Montgomery Receives University Award of Merit

In April , during his last meeting in guiding the Law School through as chai r of the Law School's Board of the past six years . They can stand Visitors, Robert K. Montgomery together with great pride in the con­ '64 was presented a Duke University tinued improvement of every aspect of Award for Merit by President Nannerl the Law School during this time and O. Keohane. The Award for Merit is for bringing to reality the magnificent given at the President's discretion to building that is nearly completed. " persons serving the University in In addition to his service to the recognition of special and extraordi­ ~ Board of Visitors, Montgomery is also nary contributions to the University ~ the current chair of the Duke community. Montgomery has been a ~ University Development Council for member of the Board since 1983, and i Los Angeles, is amember of the Duke served as its chair since 1988. i University Executive Leadership In presenting the Award , Presi­ ~ Board for Los Angeles, and is amem­ dent Keohane noted that "Bob is an ~ ber of the Law School Barristers. He exemplary model of the best of the ~ has previously been an agent for the Duke Law School. He is afine profes­ Law Class of '64, a member of the sional person-having joined the law Robert K. Montgomery '64 is congratulated by Duke President Nan Keohane (left) and Southern California Arts & Sciences Dean Pamela Gann. firm of Gibson, Dunn & Crutcher in Executive Committee, and has served Los Angeles when it was 70 lawyers on several other University and Law and watching the firm grow to hundreds of lawyers be a "University" President, and that students should School committees and organizations He has previ- throughout the world. He has also provided extraor­ be brought up to be "University" graduates, and that ously received the University's Charles A. Dukes dinary leadership to his local community. Perhaps alumni leaders should represent the "University" and Award for Outstanding Volunteer Service, and based his greatest achievement in community service was not the special interests of their own narrow con­ on his gift to the Law School's Fund for Excellence, his active role as senior vice president of the Los stituencies." the registrar's office in the new addition will be named Angeles Olympic Organizing Committee for the 1984 Members of the Board of Visitors were joined for the Robert K. Montgomery Registrar's Suite. Olympic Games." the Award presentation by Law School faculty mem­ Dean Gann said that "Bob Montgomery has been Keohane also mentioned Montgomery's service bers, administrators, and by Montgomery's wife, absolutely exemplary in his attention to the Board of to the Law School and the University, stressing that Valerie, and their daughter, Loren , who is a member Visitors and the Law School. It is hard for me to imag­ "while always maintaining his special loyalty to the of the Law School Class of '96. Noting that Mont­ ine being Dean without his being simultaneously the Law School, Bob has also been a tireless advocate gomery took over as chair of the Board of Visitors in chair of the Board. Many members of the Board of for bringing together all the various parts of Duke 1988, the same year that Pamela Gann became Dean , Visitors told me that he was irreplaceable. I am count­ University into acohesive and workable partnership. Keohane said that Montgomery and Dean Gann had ing on his continu ing to be a good friend of Duke He has always advocated that the President should "created an effective faculty/alumni leadership team University."

'52 Grady B. StoH, senior partner general practitioner of the law and for 1013 or 613-1011 ifyou have not with the firm of Stott, providing a role model for all lawyers received the information or ifyou have Hollowell, Palmer and Windham in in North Carolina." any questiom. Gastonia, North Carolina, has been S.G . (Cy) Clark has been appointed to inducted into the North Carolina Bar '54 Reunion plam are underway for a special National Labor Relations Association's General Practice Hall of the Class 0/'54. Law Alumni Board Advisory Panel, consisting of Fame. The Hall of Fame recognizes "a Weekend will be October 1 & 8, 1994. union lawyers and management lifetime of exemplary service and high Details have been mailed. Please contact lawyers that will provide the Board ethical and professional standards as a the Law Alumni Office at 919-613- VOL U M E 1 2, N O .2 47

with information on a variety of topics. Clark is senior general attorney for employee relations for u.s. Steel in Smith to Chair Board of Visitors Pittsburgh, Pennsylvania. Lanty L. Smith '67 of Greensboro, North '57 Richard E. Glaze, a partner Carolina, has been appointed by Duke President with Petree Stockton in Win­ Nannerl O. Keohane to chair the Law School 's Board ston- Salem, is a member of the Execu­ of Visitors beginning July 1, 1994. Smith succeeds tive Council of the Senior Lawyers Robert K. Montgomery '64 who chaired the Board Division of the North Carolina Bar for the last six years . Association. Dean Pamela B. Gann 73 said that she is "delighted that Lanty Smith has agreed to serve in this capacity. William R. Patterson '50 provided signifi­ '59 Reunion plans are underway for cant leadership on the Board from 1977 to 1987, fol­ the Class 0/'59. Law ALumni lowed by Robert Montgomery's strong performance Weekend will be October 7 & 8, 1994. from 1988 to 1994. The Law School has experienced Details have been mailed. Please contact such attentive and sign ificant assistance from the the Law Alumni Office at 919-613- chair of the Board of Visitors in the past, that it was 7013 or 613-7017 ifyou have not very important to find another alumnus who could received the information or ifyou have follow these earlier examples. Lanty combines exten­ Lanty L. Smith '67 any questions. sive professional experience both in private practi ce and in business, with significant volunteer leadership Arecent recipient of the Outstanding Community Julian W. Walker, Jr. retired in March positions in Greensboro and in North Carolina. He Service Award from the Greensboro Jaycees and the after 26 years as the South Carolina also cares deeply about Duke University from which Americanism Award from the Anti-Defamation trust executive for Wachovia Trust he has a Law School degree and his wife has both League, Smith is an avid public service volunteer and Services, in Columbia. He began his undergraduate and doctor of ph ilosophy degrees, community leader. He is a member of the Board of bank trust career in 1967 after six years and in which one of his daughters is currently Directors and of the Executive Committee of First of private practice in Norfolk, Virginia. enrolled as aTrinity College student. I personally look Union Corporation; he is also a director of Masland forward to working closely with him in this capacity." Industries, Inc. and Southern Optical Company. He is '61 Arthur B. Parkhurst is a senior Smith is chairman of the Board of Directors and a member of the Rotary Club of Greensboro, the mediator associated with chief executive oHicer of Precision Fabrics Group, Greensboro Development Corporation Executive Mediation, Inc. in Fort Lauderdale, Inc ., a leading manufacturer of high-technology, Committee, the Board of the North Carolina Institute Florida. He has conducted over 2,000 specification textile products. He previously was of Medicine, and of the North Carolina Institute of president and general counsel of Burlington Indus­ Public Leadership. He is vice chair of the Board of mediation conferences in state and tries, Inc , and practiced law as a partner of Jones, Trustees of Cone Hospital and of the Board of Visitors federal cases. Day, Reavis & Pogue in Cleveland, Ohio. Smith is of North Carolina A& TState University. He is amem­ also presently the chairman of the Board of Directors ber of the Board of Governors of The Center for '6"'l Charles O. Verrill was recently of The Greenwood Group, Inc., which operates the Creative Leadership, a trustee of the North Carolina ~ awarded the Charles Fahy largest franchise business of Manpower Temporary Textile Foundation and president of the Board of Distinguished Adjunct Professor Award Services. Directors of The Foundation of Greater Greensboro. at Georgetown University Law Center, where since 1977 he has taught a course on international trade law and regulation. He continues as head of the '62 Edward S. Robe , senior part- unexpired term will be on the ballot in international practice at Wiley, Rein & U ner of the Robe & Robe November. Robe has also been installed Fielding in Washington, D.C. law firm in Athens, Ohio, has been as president of the Ohio State Bar appointed to serve out an unexpired Foundation, an educational and term on the bench of the Athens charitable organization. County Juvenile-Probate Court; the 48 DUKE LAW MAGAZINE / SUMMER 1994

'64 Reunion plans are underway for the Class 0/,64. Law Alumni Weekend will be October 7 & 8, 1994. Durham Joins Duke Trustees Details have been mailed. Please contact the Law Alumni Office at 919-613- Christine M. Durham '71 has been selected 7013 or 613-7017 ifyou have not to fill an unexpired term on the Board of Trustees of received the information or ifyou have Duke University beginning July 1, 1994. She is an associate justice of the Utah Supreme Court, which any questions. she joined in 1982, after serving on Utah's general Richard H. Rogers has organized the jurisdiction trial court for three and one-half years. firm Rogers, James & Dulaney in As atrial judge, she was the presiding judge in her Dayton, Ohio, which concentrates district and served a term as president of the Utah on business, construction and inter­ District Judges' Association. Before coming to the bench in 1978, Durham practiced law in North national law. Carolina and in Salt Lake City and was an adjunct John D. Taylor retired as managing professor at the J. Reuben Clark Law School at director ofThe Chase Manhattan Brigham Young University. She previously taught a Private Bank in April. He has been course on medical jurisprudence at the Duke named a department executive for the University Medical Center and was a research Asian Development Bank, where he associate at the Law School. Dean Pamela Gann notes that "Christine will have responsibility for the Bank's Durham was an exceptional Law School student, private sector activities. He will be and she has gone on to significant achievements in Christine M. Durham 71 located in Manila, The Philippines. the profession. Her work on the Law School Board of Visitors proved that she can be an effective mem­ Rules. She is a founding member and past presi­ '65 Jeffrey P. Hughes, vice chair- ber of advisory and governing university bodies, so dent of the National Association of Women Judges. man, announces the forma­ I know that she will be a significant leader for the Justice Durham was a co-organizer of Women tion of The Cypress Group, Inc., a Duke University Board of Trustees. She is also the Lawyers of Utah in 1980 (and was that group's merchant banking firm in New York first Law School graduate to jOiQ the Board of Woman Lawyer of the Year in 1986), and has City. Trustees since L. Neil Williams, Jr. '61 became a served as president of the Women Judges' Fund for member in 1980 (he is now a Trustee emeritus) Justice. She is a member of the Council of the Fred A. Windover is vice president and and Lloyd C. Caudle '56 became amember in 1983 American Law Institute, a fellow of the American general counsel of Allegro Microsys­ (he is serving his second term, which expires Bar Foundation, a former member of the Board of terns, Inc., an international manufac­ in 1995)." Directors of the American Judicature Society, and turer of semiconductors in Worcester, Justice Durham has recently been appointed by a life member of the Duke Law School Board of Massachusetts. Chief Justice Rehnquist to the United States Visitors. She also teaches acourse on state consti­ Judicial Conference Advisory Committee on Civil tutionallaw at the University of Utah College of Law. '66 James B. Maxwell, a partner of the Durham firm of Max­ well, Freeman & Beason, has been of Law at the Drake University Law '68 Roger H. Kissam, general elected to the Board of Governors of School in Des Moines, Iowa. He counsel and secretary of the North Carolina Bar Association. teaches trial practice, evidence, criminal Welbilr Corporation in Stamford, Douglas P. Wheeler, the secretary of the practice and procedure. Connecticut, was recently elected a Resources Ageney of the State of Cali­ William H. Steinbrink has been named vice president. fornia, has been appointed a charter president of Laurel Industries, Inc. in Stephen P. Pepe, a partner with O'MeI­ member of the Yosemite Concession Cleveland, Ohio, which refines anti­ veny & Myers in Los Angeles, Califor­ Services (YCS) Advisory Council. The mony oxide, an additive used as a fire nia, is the co-author of Designing an Council will be a consultant to YCS to retardant in plastics. The company Effective Fair Hiring and Termination help maintain a proactive and environ­ also has a plastics compounding divi­ Compliance Program, Vol. 9 of the mentally sensitive park operation. sion. Steinbrink has been on Laurel's Corporate Compliance Series pub­ board since the company was formed lished by Clark Boardman Callaghan '67 James A. Adams has been in 1983. and co-author of Privacy in the WOrk­ 1/ named the Richard M. and place published by Merchants and Anita Calkins Distinguished Professor Manufacturers Association. Pepe is VOLUME 12 , NO.2 49

Blue Receives Honorary Degree

Daniel T. Blue , Jr. '73, speaker of the North Carolina House of Representatives, was awarded an honorary doctor of laws degree by the University of North Carolina at Chapel Hill during graduation ceremonies in May. Blue is a seven-term legislator from Wake County; he was elected speaker of the House in 1991 and was re-elected to the post in 1993. The first African-American speaker, Blue has guided a divided General Assembly through several crises. In 1991 , he oversaw the resolution of a $1.2 billion budget shortage that resulted in large spend­ ing cuts and tax hikes. The next year, he helped re-write workplace safety laws after a fire killed 25 workers at a Hamlet, North Carolina poultry plant. Active in several regional and national legislative committees, Blue serves on the executive committee of the Southern Legislative Conference and the National Conference of State Legislators. He prac­ tices civil litigation with the Raleigh firm of Thigpen, From left, Garland Hershey, vice provost and vice chancellor for medical affairs, House Speaker Dan Blue '73 , and Blue, Stephens and Fellers. He recently received the Chancellor Paul Hardin '54. At center, background , is George Lensing, secretary of the faculty. Outstanding Leadership Award from the North Carolina Academy of Trial Lawyers in recognition of for Equal Opportunity in Higher Education in 1993 stitutional government. He called for a new revolu­ his work in the 1994 special session on crime. He is and was a recipient of the National 4-H Alumni tion , "a revolution of thinking ... that brings us the recipient of the Robert F. Kennedy-Jacob Javits Recognition award in 1991. together as communities, neighbors, and friends . Award for State Advocate of the Year in 1993. This During the UNC ceremony, Blue's remarks made That revolution should be based on ... the need for award is given by the National Congress for Com­ on the occasion of the Bicentennial of the Bill of all of us to participate in our government and to make munity Economic Development. He also received Rights in 1991 were remembered and praised. Blue sure it works the way we designed it.' the Leadership Award from the National Association noted that Americans seem to be losing faith in con- also co-author of Defomation in the John A. Canning , Jr. , president of First . '710 John R. Dawson will serve as Workplace, and co-editor of the Cali­ Chicago Venture Capital in Chicago, / I president of the Milwaukee, fornia Employment Law Letter, both Illinois, has been named to the Board Wisconsin Bar Association for the by M. Lee Smith Publishers. of Trustees of Northwestern University. 1994-95 operating year. He is also Charles H. Gibbs, Jr. is now a partner chair of the Advisory Group of the '60 Reunion plans are underway for with Sinkler & Boyd in Charleston, Eastern District of Wisconsin (a pilot 17 the Class 0/,69. Law Alumni South Carolina, handling commercial district) under the Civil Justice Reform Weekend will be October 1 & 8, 1994. litigation cases. Act of 1990, appointed by Chief}udge Details have been mailed. Please contact Evans of that federal district. Dawson Kathleen M. Mills has been elected an the Law Alumni Office at 919-613- is a partner at Foley & Lardner. assistan t secretary of Bethlehem Steel 7013 or 613-1017 ifyou have not Corporation in Bethlehem, Pennsyl­ received the information or ifyou have l aurent R. Hourcle is the vania, where she is also assistant general '71 any questions. deputy director of the new counsel. She handles general litigation George Washington University Envi­ Charles l. Becton, a partner with Fuller, work with an emphasis on antitrust, ronmental Law and Policy Program, in Becron, Billings & Slifkin in Raleigh, employment, mining and civil rights addition to his regular faculty respon­ North Carolina, has been elected presi­ matters. dent of the North Carolina Academy sibilities. He has authored Military of Trial Lawyers. He is a former North Secrecy and Environmental Law, pub­ Carolina appellate judge. lished in the Winter 1993 issue of the NYU ENVlRONMENTAL LAw JOURNAL. 50 DUKE LAW MAGA Z INE / SUMMER 199 4

Advocating for Children

"A world class community begins by caring with acrowded jail , aclogged court system , an over­ about its children ," says Katie Holliday '80, co­ burdened child welfare system, inadequate police founder and executive director of the Children's Law protection and a school system that cannot direct all Center in Charlotte, North Carolina. Holliday gradu­ energies to the teaching-learning process." ated from Wake Forest University in 1970 with a As executive director, Holliday's responsibilities degree in psychology and a passion for helping grow and change daily. Managing a staff-paid and young people at risk. The logical next step was a volunteer-numbering upwards of 250 on a lean masters degree in counseling and a career as a high budget of $660,000 requires incredible energy and school teacher and guidance counselor. "But after ingenuity. Like all those at the helm of not-for­ seven years in public education, I realized I needed profits, Holliday logs many hours and miles raising other skills to more effectively advocate for children," funds. This year, she's also spent considerable time she says. That realization brought her to Duke Law in Raleigh as coordinator of "Justice for Children ," School in 1977. At Duke, Holliday claims she was an advocacy group representing the interests of chil­ "never a typical law student," and credits Duke with dren caught in the juvenile justice system to North allowing her the flexibility to shape her program Carolina legislators. Concerned that children might around her public service interests. This included a suffer in the "get tough " climate of the Special Crime focus on civil rights and extensive work with legal Session, Holliday and her colleagues pushed hard­ services in her native Charlotte. and successfully-for programs designed to deter Immediately out of law school, Holliday clerked rather than merely punish juvenile offenders. Katie Holliday '80 for Charlotte federal district court judge James B. Holl iday reflects positively on her Duke Law McMillian. "Working with the federal courts crystal­ experience. In law school , she had relatively few lized my interest in making sure there was access to through confUSing and often unresponsive court pro­ classmates who shared her unwavering interest in the system for all-not just the privileged," explains ceedings, she realized that helping at-risk children public law. Yet, since graduation, she has increas­ Holliday. But instead of moving directly inlo public find more stable lives would require abroader , multi­ ingly come to rely on a rich network of Duke class­ law, Holliday spent three years in private practice faceted approach. mates in the private sector to support her work. In honing her advocacy skills. Unlike many new attor­ Thus, in 1987, Holliday and a like-minded col­ turn , she's lent her support to Duke's efforts to expand neys, Holliday did not wait until she had her regular league founded the Children 's Law Center (CLC), an public interest law. This summer, the CLC has its first case load under control to take pro-bono cases. "I umbrella organization dedicated to assuring that Duke summer intern, John Coburn '95, and this took court-appointed cases in juvenile court right legal and social service processes work for children. past January, Holliday was a panelist at the Frontiers away, and soon I found my high juvenile court load Guided by the proposition that children be treated as of Legal Thought Conference, "Criminal Justice: was outweighing everything else." citizens in their own right, rather than parental prop­ Towards the 21 st Century. " "The conference was After three years as an associate at James, erty, the CLC assists thousands of children every a magnificent undertaking. I've been impressed McElroy and Diehl in Charlotte, in 1984 Holliday year. Obtaining a heart transplant for a two-year-old , by what Duke's undertaking in the whole public inter­ moved into full-time child advocacy work as an attor­ demonstrating that a 13-year-old can function suc­ est arena." ney for the Mecklenburg County Guardian ad Litem cessfully outside a psychiatric hospital , reinstating Personally, Holliday believes her own experience Program (GAL). This program uses trained volun­ an honors student excluded from school for bringing as the parent of three daughters, ~ine-year-old twins teers working in tandem with lawyers to ensure that a knife to work on an arts project, CLC and volunteer and a 12-year-old, probably has been the greatest every child involved in an abuse or neglect case gets staff work on many fronts. single influence on her career. "Having children really representation . As aGAL attorney advocate, Holliday Holliday is quick to point out that the CLC serves did take me in a different direction-it led me to feel encountered a service del ivery system "so frag ­ more than children ; it serves the entire community just how crucial the parent-child relationship must mented and inadequate that children simply weren't "If all children in Charlotte-Mecklenburg County be. It's made me try to always look at situations from being served ." While she had the daily satisfaction of could grow up in environments that promote their a child's viewpOint. " being on the front lines helping to steer children well-being , this community would not be plagued Lucy Haagen

Randolph J. May has been appointed administration and justice. May is Bryan E. SharraH has been appointed to serve as a public member of the a parmer in the Washington, D.C. deputy assistant secretary of the Air Administrative Conference of the office of Sutherland, Asbill & Brennan, Force for reserve affairs at The Penta­ United States, which conducts studies where he specializes in communica­ gon. He will be responsible for oversee­ and makes recommendations concern­ tions law. He has recently authored ing and establishing policies for the Air ing the improvement of government an article on judicial review. National Guard, the Air Force Reserve VOLUME 12 , NO . 2 51

and the Civil Air Patrol. He will also which focuses on bankruptcy, collec­ Clair F. White has become a partner at manage the counterdrug activities of tion, real estate and commercial law, in the newly-formed law firm of Barlow the U.S. Air Force. Portland, Oregon. and Hardtner in Shreveport, Louisiana. David l. Sigler, a director of The Gray John J. Pomeroy has been elected vice Law Firm in Lake Charles, Louisiana, president-secretary and general counsel '75 Stanley G. Hilton has authored has been elected a fellow of the Amer­ of Allendale Insurance in Johnston, SENATOR FOR SALE: A BIOG­ ican College of Trusts & Estates Rhode Island. Allendale Insurance spe­ RAPHY OF SENATOR BOB DOLE, forth­ Counsel. cializes in loss control management and coming from St. Martin's Press. Hilton the insurance of industrial and institu­ is a former aide to Dole. He is now tional properties worldwide. practicing law in San Francisco, California and is an adjunct lecturer '72 Jeffrey S. Portnoy has been John D. Volk now practices with the elected as the Hawaii State teaching political science at Golden firm of Fthenakis & Yolk in Palo Alto, Bar Association representative to the Gate University. California. ABA House of Delegates and has been appointed chair of the Hawaii Federal ''h Robert E. McCorry, Jr. has '7/' Reunion plans are underway for District Court Advisory Committee. A / ~ retired from the United States / Lf the Class 0/'74. Law Alumni D parmer in the Honolulu firm of Cades, Naval Reserve with the rank of captain Weekend will be October 1 & 8, 1994. Schutte, Fleming & Wright, he is the after 25 years of service. He is currently Details have been mailed. Please contact author of MAss COMMUNICATIONS serving as president of the Board of the Law Alumni Office at 919-613- LAw IN HAWAlI, published by New Directors of the Pawtucket Day Nurs­ 1013 or 613-1011 ifyou have not Forums Press. ery Association, the oldest (101 years) received the information or ifyou have child day care center in the state of David A. Thomas is editor-in-chief and any questions. principal author of THOMPSON ON Rhode Island. Alfred G. Adams, Jr., a partner with REAL PROPERTY, THOMAS EDITION, a Celia A. Roady has joined the firm of Sutherland, Asbill & Brennan in 15-volume treatise on American real Morgan, Lewis & Bockius as a tax Atlanta, Georgia, has been named property law, published in June 1994 partner, resident in its Washington, chairman of the firm's real estate by The Michie Company. He wrote D.C. office. She focuses on federal and department. He specializes in com­ six of the 15 volumes, and assembled state income taxation primarily involv­ mercial real estate and creditors' rights, a team of 30 other property law pro­ ing tax-exempt organizations. and is a former chairman of the Real fessors from around the country to Property Section of the Georgia Bar. produce a completely new edition of '77 Ember Reichgo" Junge the old treatise, which had been out Howard B. Gelt has been re-e1ected chair practices with The General of print since 1981. Thomas has been of the Democratic Party of Colorado. Counsel, Ltd., a firm that provides professor of law at Brigham Young He is a partner at Sherman & Howard time-shared in­ University since 1974. in Denver, specializing in international house counsel business matters. laurence R. Tucker has been elected services to cor­ vice president of the Missouri Bar for Jay J. levin has been named a partner porations in the the 1993-94 term. He is a partner at at Powell, Goldstein, Frazer & Murphy Minneapolis/ the Kansas City firm of Watson, Ess, in Atlanta, Georgia. St. Paul, Minne­ Marshall & Enggas, litigating personal Thomas E. Mclain is a partner and head sota area. She is injury, contract disputes, and product of the corporate department of the Los also serving her and personal professional liability cases. Angeles, California office of Perkins, 12th year in the Minnesota Sen- Ember Reichgotl Junge 77 James W. Ummer has become a share­ Coie. He specializes in complex inter­ ate, and is now the majority whip and holder in the Pittsburgh, Pennsylvania national business transactions, with a chair of the Senate Judiciary Commit­ firm of Babst, Calland, Clements and special emphasis on Asia. He is a mem­ tee. She also serves on the Tax, Edu­ Zomnir. ber of the advisory board of Interna­ tional Computer Lawyer and the advis­ cation, and Elections and Ethics ory committee for the U.S. Agency for Committees. '73 s. Ward Greene has been inducted into the American International Development-funded Richard W. Sco" has been appointed College of Bankruptcy. He practices Indonesia Law Reform Project. executive vice-president and general with the firm of Greene & Markley, counsel for the Western National Corporation in Houston, Texas. 52 DUKE LAW MAGA Z INE /

Carolina, has been awarded the Asso­ secretary of defense Dick Cheney in '78 Karen I. Jackson is now the / I assistant dean for career plan­ ciation of Trial Lawyers of America Washington, D.C. ning at Temple University School of (ATLA) 1994 Jacobson Award for Charles J. Ingber has relocated to Law in Philadelphia, Pennsylvania. She being the best trial advocacy teacher in Portland, Oregon, and is with the firm is also vice president for programming the country. of Weiss, Jensen, Ellis & Botteri, spe­ of the Board of Directors of the Phila­ Russell S. Jones is a partner with cializing in taxation, estate planning delphia Bar Education Center, and has Shughart, Thompson & Kilroy in and assisting closely-held businesses. recently been appointed to the Board Kansas City, Missouri. He is now the Blake A. Watson joined the faculty of of Directors of the Duke Law Alumni head of the firm's trademark, copyright the University of Dayton School of Association. and intellectual property litigation Law in 1992, where he teaches envi­ Gregory S. lewis is now president and and enforcement group. He also does ronmentallaw, natural resources law, CEO of U.S. Africa Airways, Inc. in other types of commercial and business administrative law, and property. He Reston, Virginia. litigation. was voted professor of the year by the Richard J. Webb has been named a Elizabeth Fairbank Kuniholm, who prac­ first-year class in 1992-93, and profes­ partner lit McCarter & English in tices in Raleigh, has been elected legal sor of the year by all three classes in Newark, New Jersey, where he special­ affairs vice president of the North 1993-94. izes in health care law. Carolina Academy of Trial Lawyers. Jane Pickelmann long has moved to '82 w. David Edwards, an associate with Womble Carlyle San­ '79 Reunion plans are underway for Memphis, Tennessee and is an attorney the Class 0/79. Law Alumni with Apperson, Crump, Duzane and dridge & Rice in Charlotte, North Weekend will be October 7 & 8, 1994. Maxwell, where she practices defense Carolina, has co-authored Chapter 28, Details have been mailed. Please contact litigation, commercial and banking law. Partners & Partnerships in CHAPTER 11 THEORY AND PRACTICE: A GUIDE TO the Law Alumni Office at 919-613- John W. (Jack) Marin won the 1994 REORGANIZATION Games F. Queenan, 7013 or 613-7017 ifyou have not Michael Jordan-Ronald McDonald Jr., Philip J. Hendel & Ingrid M. received the information or ifyou have Children's Charities Celebrity Golf Hillinger, eds., 1994). He practices in any questions. Classic in Woodridge, Illinois in June. the areas of bankruptcy and com mer­ Jeffrey C. Coyne is chairman and chief A former NBA all-star, he is the first ciallitigation. executive officer of Divi Resorts, cur­ basketball player to win a national rently headquartered in Miami, Florida celebrity golf event. Marin is a partner Barbara S. Esbin has been promoted to and scheduled to relocate to Chapel in the firm of Maupin, Taylor, Ellis & assistant chief, Tariff Division, Com­ Hill, North Carolina. Adams in Raleigh, North Carolina. mon Carrier Bureau of the Federal Communications Commission in Kevin P. Gilboy, Andromeda Monroe is the senior asso­ Washington, D.C. a fiduciary part­ ciate corporate counsel with American ner with Dechert, Bankers Insurance Group in Miami, Mark l. Koczela has been Price & Rhoads Florida, with primary responsibility for '83 named treasurer and executive in Philadelphia, assumption reinsurance arrangements. vice president for finance and adminis­ Pennsylvania, Robert E. Rigler announces the forma­ tration of ARI Network Services in recently served as tion ofThe Rigler Law Firm in Alex­ Milwaukee, Wisconsin. ARI is the co-course plan­ andria, Virginia, concentrating on the leading provider of electronic com­ ner, author and representation of commercial banks, Kevin P Gilboy '79 merce services to several distribution lecturer for the investment banks, insurance companies channels in or close to the agribusiness Pennsylvania Bar Institute program and other financial institutions. industry. ARI's services allow customers titled, "Estate Planning for Second (Editor's Note: This announcement was to conduct business transactions elec­ Marriages." Gilboy is a member of the originally published in the Winter 1994 tronically, computer-to-computer. firm's employee benefits practice group, issue under an incorrect class year head­ Michael A. lampert, a tax attorney in where he concentrates in S corpora­ ing. Our apologies.] tions and Pennsylvania inheritance tax. West Palm Beach, Florida, is the chair of disaster services for the Palm Beach David S. Addington has '81 ~een County chapter of the American Red Carol Boyles Anderson, a pro­ named president of the Alli­ '80 Cross. He is also treasurer of the Jewish fessor of law at Wake Forest ance tor American Leadership, a politi­ Family and Children's Service of Palm University in Winston-Salem, North cal action committee chaired by former VOLUME 12, NO.2 53

Legal Affairs Correspondent at The Times

''I'm much more of ajailhouse lawyer than many In contrast to practicing lawyers, who typically do of my colleagues in big practices who develop spe­ as much business as law, Labaton enjoys the luxury cialties ," says Stephen labaton '86 . And the of being able to focus exclusively on legal issues. broad range of legal issues he covers appeals to "Because I have to think and write about it daily, I'm Labaton , who has worked with The New York Times probably more absorbed in law than many of my con­ since his first year in law school. temporaries." Though Labaton sees parallels The son of a lawyer and brother of Duke Law between the work of a journalist and a lawyer, he grad, Mark Labaton '88, Steve Labaton came to Duke describes his work as closer to the work of a judge. in 19a3 thinking about both journalism and law. "You have to maintain clear objectives and standards Having written for both his college and high school of justice. There are people at The Times who are newspapers, he "liked the idea of being paid to be advocates-I'm not one of them ." curious." Aconceptual interest in law led him to pur­ While he claims not to be an advocate, Labaton's sue a joint-degree program, earning an MA in phi­ abiding commitment to the public interest is unmis­ losophy along with his JD. But Labaton's interest in takable. Covering the government's handling of the journalism did not steer him away from a hard core, Branch Dividian crisis in Waco, Texas, he was able corporate law curriculum. And he credits the rigor of to establish the veracity of an agent who had been Duke's case-study method with providing him accused of lying, ultimately expos ing serious incom­ invaluable investigative skills. petency in the leadership of the federal Bureau of Between his first and second years , Labaton Alcohol , Tobacco and Firearms. Another such oppor­ landed an internship with The Times After law tunity came in his recent coverage of the discrimina­ school, he continued there as aclerk in the business Stephen Labaton '86 tion suit against the Denny's restaurant chain . news section. Within four months, he was writing his Charged with deliberate and systematic mistreatment own biweekly business and law column. In 19a7, he phering complex financial transactions. These skills of black customers, Denny's CEO insisted that was promoted to legal affai rs correspondent, cover­ were invaluable when he spent a month this winter instances of poor service were isolated and that the ing stories focusing on the prosecutions of Ivan uncovering the connections between Hilary Clinton's corporation could not be expected to control every Boesky and Michael Milken, as well as the major cor­ commodity windfall , the failed Madison Guaranty employee of the company. Labaton quickly estab­ porate takeovers and bankruptcies that have come Savings and Loan, White House aide Vincent Foster's lished the disparity between this disclaimer and to symbolize the excesses of the 19aOs. suicide, and the Whitewater real estate venture. Denny's reputation as a tightly controlled , hierarchi­ In 1990, Labaton was transferred to The Times' Labaton finds his Duke Law experience provides cal company. Talking with lawyers for the plaintiffs, Washington Bureau, where the range of his assign­ other advantages as well. He frequently consults his Labaton uncovered micro-managing by a "hands-on ments broadened considerably. In the past year he former professors-both in Durham and in Wash­ executive who runs every detail of the 1,500 restau­ has written about Hilary Clinton's commodity trad­ ington. "In asense , I feel I haven't left the Law School. rant chain down to the temperature of the oil for the ing, the Branch Dividians, the Denny's restaurant I can pick up the phone on the pretext of working on french fries." As an ironic footnote to the article, chain discrimination judgment, gays in the military, astory and talk to professors like Jim Cox on corpo­ Labaton noted that the $54 million judgment against and recently the indictment of veteran Congressman rate securities, Richard Schmal beck on tax ques­ Denny's was likely to have little effect on parent com­ Dan Rostenkowski. tions, and Walter Dellinger at the Justice pany Flagstar's bottom line-in part because pay­ Labaton reflects a growing trend among major Department. " And Duke Law professors often send ments to its black customers are tax deductible. news media to hire legal affairs correspondents with Labaton to other sources, helping him build an In summing up the appeal of journalism, Labaton law degrees. He acknowledges that a journalist who extensive and reliable information network. Labaton's adm its to taking pleasure in "comforting the afflicted is a quick study can pick up sufficient legal knowl­ law degree is also adecided investigative asset when and afflicting the comfortable." edge on the fly to handle most stories. As a trained it comes to dealing with other lawyers. "Lawyers who lawyer, though, Labaton believes he has a definite know you're alawyer open up to you . They also know Lucy Haagen edge when it comes to reading legislation and deci- it's harder to mislead you ."

Beach County and president of the Susan Westeen Nova" has joined the '84 Reunion plans are underway for Palm Beach Tax Institute. new law firm of Nordman, Cormany, the Class 0/,84. Law Alumni J. Daniel McCarthy is currently assigned Hair & Compton in Oxnard, Califor­ Weekend wilL be October 1 & 8, 1994. as a special assistant to the Secretary nia, as a tax attorney. Details have been mailed. Please contact of the Navy for legal matters in Wash­ the Law Alumni Office at 919-613- ington, D .C. 1013 or 613-1011 ifyou have not 54 DUKE LAW MAGAZINE /

received the information or ifyou have '86 Ellen Soffin Coffey is now an Sco" A. Cammarn has become a partner any questions. assistant counsel with the in the Columbus, Ohio firm of Zeiger, David M. lockwood has been named a Commonwealth of Pennsylvania State Dremer & Carpenter, which specializes partner in the firm of Stradley, Ronon, Employees' Retirement System in in banking law. Stevens & Young in Philadelphia, Harrisburg. R. Wilson Freyermuth, Jr., a professor Pennsylvania. Christy M. Gudaitis has been named a at the University of Missouri-Columbia Steven P. Natko has become a partner in partner in the Charlotte, North Caro­ School of Law, was selected by the the Trenton, New Jersey office of lina office of Smith Helms Mulliss & students at the school as the outstand­ McManimon & Scotland. Moore. ing teacher for 1994. He is also the recipient of the Annual Award of the Stevan J. Pardo has been named a Gordon F. Kingsley, Jr. is a vice presi­ American College of Commercial shareholder in the firm of Greenberg dent at J.P. Morgan Securities, Inc. in Finance Lawyers for the best legal Traurig Hoffman Lipoff Rosen & New York City, working as an invest­ article relative to commercial finance Quentel in Miami, Florida. ment banker with responsibility for Latin America private sector clients. law. His article was O/Hotel Revenues, Edward Redlich is in Los Angeles, Rents, and Formalism in the Bankruptcy Alexandra D. Korry has been named a California, and is a writer for the legal Courts: Implications for Reforming partner in the firm of Sullivan & drama "Sweet Justice," to be on NBC Commercial Real Estate Finance Law, Cromwell in New York City. this fall. 40 u.c.L.A. L. REv. 1461 (1993). Kelly J. Koelker is on a one-year leave of Thaddeus S. Gauza announces the Janet Ward Black has become absence from law practice to teach '85 opening of a solo practice in Chicago, a partner in the Greensboro, research, writing and advocacy at Geor­ Illinois, specializing in business and North Carolina firm of Donaldson & gia State University College of Law. commercial litigation. Horsley. She has been named North Bozena Sarnecka-Crouch is a senior Timothy R. Johnson has joined the Carolina liaison counsel for Federal legal specialist for Polish law at the Law Southern Pacific Transportation Com­ Breast Implant Litigation by the Hon­ Library of Congress. She has recently pany in San Francisco, California, as orable Sam Painter (E.D. Alabama) returned from a year in Warsaw work­ manager of labor relations. and she has been appointed to the ing as a Polish liaison of the Central executive council of the litigation sec­ and Eastern European Law Initiative Stephanie A. lucie has been elected vice tion of the North Carolina Bar Associ­ (CEELI). CEELI is a project of the president of the Houston Young law­ ation. She is also a member of the American Bar Association designed yers Association. She practices corpo­ board of directors of the Presbyterian to support the process of law reform in rate securities law in the Houston office Counseling Center in Greensboro. Eastern and Central Europe. A premise of Wei I, Gotshal & Manges. David S. liebschutz is the director of of the project is that lasting economic Robert l. Maddox, III has been marketing and special projects for the and political reform is dependent on a appointed assistant general counsel of New York Environmental Facilities functioning system of law and on Providian Corporation in Louisville, Corporation (EFC). EFC, established adherence to the rule of law. Kentucky. He provides legal support in 1970, is one of New York's 39 public Anne T. Wilkinson has relocated to San for Providian's retail annuity business. benefit corporations; it helps local gov­ Diego County, California, where she is Providian, formerly Capital Holding, ernments, state agencies and private currently a full-time mother to her two is a leading provider of consumer businesses comply with state and fed­ daughters, ages four and almost one. financial services including insurance, eral environmental laws and regulations consumer loan and annuity and pen­ in the most cost-effective way. '87 Axel Bolvig III has become a sion products. David C. Profilet announces the forma­ partner in the Birmingham, Wendy Beth Oliver is now practicing law tion of his new firm, Profilet & Asso­ Alabama office of Bradley, Arant, Rose part-time with the firm of Sussman, ciates in Miami, Florida. The firm & White, where he practices in the Shank, Wapnick, Caplan & Stiles in specializes in business bankruptcy cases, areas of construction law, public con­ Portland, Oregon. She is also writing loan work out negotiations and com­ tracts law and general commercial a book about her travels over the last merciallitigation. litigation. year through Asia and Latin America. C. Forbes Sargent, III has been named lindsey A. Rader has been elected a a partner at the firm of Mahoney, partner at Shapiro and Orlander, a Hawkes & Goldings in Boston, Baltimore, Maryland-based firm. She Massachusetts. VOLUME 12 , NO.2 55

Alumnae Clerk at U.S. Supreme Court

This summer, land is Cox '92 and including music and geography. "He has a Ann Hubbard '92 will complete one-year good sense of humor," Cox says. "He is clerkships at the United States Supreme really fun to work for!" Court. Cox, from Greensboro, North Caro­ Both clerks admit to frustrations on the lina, clerks for Chief Justice William Rehn­ job. "The worst part of the job is the exe­ quist, while Hubbard, who is from Durham, cutions ," Hubbard declares. "Any time clerks for Justice Harry Blackmun. there's an execution anywhere in the coun­ The work has been fast-paced and try, the Supreme Court will stand by to take diverse, encompassing both the breadth last minute appeals. Because executions and depth of the law. In helping the justices usually are in the dead of night, the justices sift through some 6,000 certiorari petitions, often are at home, which leaves the clerks Cox and Hubbard have analyzed cutting­ here at the Court to read the materials that edge issues in virtually every area of the are faxed in. Next to the fax machine is acot law Each has written more than 200 to sleep on . When an appeal is faxed in, no lengthy memoranda assessing petitions' matter what time of night, we get it, read it, "cert-worthiness." For the approximately then call the justice. Sometimes the defen­ 110 cases the Court hears each year, they dant is actually innocent, but by the time an have crafted bench briefs discussing the appeal reaches us, there is seldom any­ issues and applicable law. And they have thing this Court can do." drafted majority opinions, concurrences , Cox's concern is more mundane but and dissents, which demand exhaustive ever-present. Despite 14-hour days, in­ research and scrupulous attention to detail. cluding weekends , she confesses, "I Cox finds opinion-drafting to be always wish I had more time to feel com­ simultaneously the most stressful and fortable with my understanding of each most enjoyable part of the job. "There's a issue and what the right answer is. There's creative element involved in putting all the so much to do that I have to be satisfied pieces together, " she says. "Italso provides with a lower level of certainty than I like." good interaction with the Chief. He takes Cox, who previously clerked for Judge our drafts and definitely revises them. And Carlton Tilley of the Middle District of that's just a great learning process." Ann Hubbard '92 (left) and Landis Cox '92 relax at the Supreme Court court- North Carolina, has one more clerkship Hubbard agrees. "The beauty of clerk- yard with Ann's new puppy, named Brennan. left. This fall she will serve on the Iran ­ ing is having a mentor. Often when you go United States Claims Tribunal in the into practice, senior partners will be too busy to uinely interested in our lives and our opinions." Hague, the Netherlands. The Tribunal was estab­ take time to edit your work or try to unravel your Hubbard feels privileged to work with Blackmun in lished to settle claims arising out of the United analysis." his last term before retirement. A 1970 Nixon States's economic sanctions against Iran in the Both clerks report that despite their justices' appointee, Blackmun has become the "conscience of 1970s. stature, they feel comfortable challenging and argu­ the Court," she says "He's the one who is likely to Hubbard , who previously clerked for Judge ing with them. "We have good conversations about say, wait a minute. When you think about denying a Patricia Wald of the U.S. Court of Appeals for the the cases ," Cox says "The Chief is acurious person. federal prisoner's in forma pauperis habeas petition D.C. Circuit, will join the Chapel Hill office of the He likes to learn. He has never made me feel uncom­ because it's three days late, think about the conditions Charlotte, North Carolina firm Ferguson, Stein, fortable about voicing what I think is the right way in which this person wrote it. Think about the effect Wallas, Adkins , Gresham & Sumter. She sums up to approach a problem." Hubbard concurs. "Justice of our decisions on people's everyday lives. " Every her Supreme Court experience: "The opportunity Blackmun always makes the call , but he takes evening as Blackmun leaves the Court, he instructs to work with Justice Blackmun and the other his clerks' advice seriously. He has invited me to his clerks with the same words: "Work hard. And clerks-in our chambers and on the Court-has disagree with him and allowed me to persist in be kind. " been unparalleled." disagreeing ." Rehnquist too has an established persona on the While many judges form lasting bonds with their Court. He is well-known as the intellectually formi­ Editor's Note: As the Magazine was gOing to press, clerks, few spend as much time with them as Justice dable leader of the Court's conservative wing. But his we learned that Jeffrey Carlton Dobbins, a 1994 Blackmun, who breakfasts with his clerks every clerks also know him as a well-rounded , fun-loving graduate, will clerk for Justice John Paul Stevens in morning for an hour. "Our conversations range from boss. Rehnquist often joins his clerks for doubles the 1995 term law to baseball to music," Hubbard says. "He is gen- tennis and engages them in his many other interests, Amy Gillespie '93 56 DUKE LAW MAGAZINE / SUMMER 1994

concentrates in public finance and the Law Alumni Office at 919-613- breast implant multi-district litigation. municipal law. 7013 or 613-7017 ifyou have not Kenneth D. Sibley, a partner with Bell, received the information or ifyou have '91 Juan F. (Pancho) Aleman is Seltzer, Park & Gibson in Raleigh, any questions. now in Panama City, Panama North Carolina, has edited THE LAw CarloHa Martin Brown is a litigation working for the investment arm of AND STRATEGY OF BIOTECHNOLOGY partner at the firm of Honigman, Grupo del Istmo, a Panamanian hold­ PATENTS (Butterworth-Heinemann, Miller, Schwartz and Cohn in West mg company. 1994). Palm Beach, Florida. Chinyere Okoronkwo has joined the Robert S. Michaels is now a staff bankruptcy and commercial law group '88 Willie O. Dixon IV has joined atrorney at the Environmental Law of the Seattle, Washington office of the firm of Burford, Pugh, & Policy Center of the Midwest in Sroel Rives Boley Jones & Grey. She Lewis and Dixon in Raleigh, North Chicago, Illinois, a regional public focuses her practice on creditors' rights, Carolina, where he practices in the area interest organization that provides workouts and bankruptcy law. of business and commercial law. legal-technical support to grassroots GarreH Epps, an assistant professor of David M. Feitel is a staff counsel for environmental groups in the midwest. law at the University of Oregon, has the U.S. Senate Select Committee on He concentrates on clean air and authored On Comtitutional Seances and Ethics in Washington, D.C. transportation Issues. Color-Blind Ghosts, 72 N.C. L. REv. loren Monroe Feitel is an associate with Susan Prosnitz has been named chief of 401 (1994). the firm of Patton, Boggs & Blow in litigation for the Boston, Massachusetts Jane Elizabeth Davis Smith is now Baltimore, Maryland. Police Department. practicing in the Frankfurt, Germany Charles T. Francis announces the for­ Wendy D. Sartory has become a real office ofJones, Day, Reavis & Pogue, mation of the firm of Wood & Francis estate and finance associate in the firm working on international arbitration in Raleigh, North Carolina, concen­ of Gunster, Yoakley & Stewart in West matters. trating in the areas of civil litigation, Palm Beach, Florida. Shabbir S. Wakhariya is a litigation municipal and land use law, felony and corporate associate with Kelley criminal defense, business representa­ '90 Gregory A. Balke is a legal Drye & Warren in New York City. tion, appeals, insurance law, commer­ protection officer with the Xianping Wang has been elected a part­ ciallitigation, and employment and United Nations High Commissioner ner in the Washington D.C.-based firm labor law. He is also a member of the for Refugees in Dushanke, Tajikistan. of Galland, Kharasch, Morse & Gar­ Raleigh City Council. John S. DeGroote is now an assistant finkle. He heads the firm's office in George R. (Randy) James is president vice president and counsel for First Beijing, People's Republic of China. of James International Group, Inc. in USA, Inc. in Dallas, Texas. Tampa, Florida, which provides con­ Xiaoming li is one of three attorneys '9(") Sean Andrussier is now clerk- sulting services to United States busi­ who have opened the Hong Kong Ling for the Honorable M. nesses that wish to enter the Eastern office of the firm Debevoise & Plimp­ Blane Michael, U.S. Court of Appeals European, and particularly the Czech, ton. The office will concentrate initially for the Fourth Circuit. markets. on project finance and related securities Gail H. Forsythe has joined the Van­ Beate Jostmeier has spent the last two transactions and joint ventures and couver, British Columbia firm of years in Brussels, Belgium and Warsaw, other forms of direct investment. Singleton Urquhart MacDonald, Poland developing the Central Euro­ Li concentrates in joint venture and where she specializes in commercial pean practice group for the firm of financing transactions. and construction mediation, partnering leBoeuf, Lamb, Greene & MacRae, Michael J. WaHon announces the open­ workshops, corporate dispute reso­ where she is a senior associate in the ing of his business, LawyerTemps, Inc. lution system design and conflict international practice department of in Milwaukee, Wisconsin. The business management. the New York City office. places lawyers in temporary, part-time Francis M. Gregory, III has joined the legal positions in industry, law firms Washington, D.C. firm of Pantaleo & '89 Reunion plam are underway for and government. Lipkin, specializing in labor, employ­ the Class 0/,89. Law Alumni Cynthia l. Weisman is with The Branch ment and civil rights law. Weekend wilL be October 7 & 8, 1994. Law Firm in Albuquerque, New Mex­ Douglas H. Hsiao, an associate with Details have been mailed. Please contact ico, where she works exclusively on Jenner & Block in Washington, D.C., VOLUME 12, NO.2 57

has co-authored And Where You Go I'fl Jacksonville. He has accepted a position '93 Jeffrey A. Benson is now an Follow: The Constitutionality ofAnti­ as an assistant state attorney for the associate in the Raleigh, stalking Laws and Proposed Model State of Florida. North Carolina Legislation, 31 HARv. J. ON L EG IS. 1 Paul S. Veidenheimer has joined the law office of Petree, (1994) . firm of Bernstein, Stockton, where Douglas H. Jackson is practicing corpo­ Shur, Sawyer and he concentrates rate and securities law with Keck, Nelson in in commercial Mahin & Cate in Chicago, Illinois. Portland, Maine, real estate. where he concen­ Mark F. Dever has Michael S. Sherman is an associate at /- Pelino & Lentz in Philadelphia, trates in products become an associ­ Pennsylvania, concentrating in health liability and ate concentrating . . Jeffrey Alan Benson '93 care law. patent matters 111 In communlCa- the firm's litiga­ ~ ~~ ) tions law with Drinker, Biddle & Edward H. Trent has completed his two­ Paul S. Veidenheimer '92 tion department. Reath in Washington, D.C. year clerkship with the Honorable John H. Moore, II, chief judge, U.S. District Catherine F.L. Stanton has joined the Court, Middle District of Florida in Chicago, Illinois law firm of Keck, Mahin & Cate.

Personal Notes

'6" Charles O. Verrill was recently Linda A. Malone and Rodney A. Smo"a '81 Nancy Ho"and Kerr and her I.L married to Dena Sollins. announce the birth of their second husband, John, announce the They reside in Washington, D.C. daughter, Corey Colleen Malone birth of a daughter, Julia DeEtte Kerr, Smolla, on April 5, 1994. on Januaty 3, 1994. Julia joins her '77Jay R. Hone and Heather brother, Alexander, age four. Wilson annouce the birth of '79 Denise L. Majette was married a second child and son, Joshua Paul, on to Rogers J. Mitchell, J r. on '84 Diane M. Barber and her October 12,1993. August 4, 1993. T hey reside in Stone husband Robert Mobley, Ember Reichgott was married to Mountain, Georgia, where Denise is announce the birth of their first child, Michael Junge on October 23, 1993. a judge on the State Court of DeKalb a daughter, on February 17,1993. They reside in Minneapolis, Minnesota. County. Briget M. Polichene and her husband, Chuck Nunzio, announce the birth of '78 Jaime E. Aleman and his wife, '80 Stephen Q. Giblin and his wife, a daughter, Sarah Elizabeth (Sallie) , on / I Pilar, announce the birth of a Debbie, announce the birth April 8, 1994. third child, Juan Manuel, on June 22, of a son, Kevin Matthew, born on 1994. He joins a brother and sister. March 24, 1994. Kevin joins his sisters, '85 Brenda Hofman Feis and her Meghan and Lauren, and brother husband, Lance, announce Patrick. the birth of their first child, a son 58 DUKE LAW MAGA Z INE /

named Benjamin Harry, on November Rachel Contorer Perlman and her hus­ Patricia Romano Schoenberg and 24, 1993. band, Neil, announce the birth of twin Claude I. Schoenberg, both Class of '89, Thomas J. Gorman and his wife, Nan­ daughters, Laura Elizabeth and announce the birth of their second nette, announce the birth of their first Caroline Anne, on January 20, 1994. child, a son named Noah Isac, on May child, a son named Patrick Gerard, on 13, 1994. He joins his sister Elizabeth. July 8, 1993. '88 Jeffrey P. Bloch was married to Sharon Beth Arnold on Grant B. Osborne and his wife, Anna, '90 Jacqueline W. Jarvis was mar- November 7, 1993 in Washington, ried to Sean Michael Jones announce the birth of their first child, D.C., where Jeff is a senior attorney on May 30, 1993. They now reside in a daughter named Kathleen Stowe, on with the Federal Deposit Insurance Charlotte, North Carolina, where Jac­ October 13,1993. Corporation. queline is an associate in the corporate and securities group of Moore & Van Ellen Soffin Coffey and her Jonathan M. Crotty and his wife, Lisa '86 Allen. husband, Rick, announce the Maloney Crotty, Class of'89, announce birth of a daughter, Cecelia Marie the birth of twin sons, Matthew Ryan Audrey M. LeVine was married to Coffey, on July 30, 1993. and William Garrett, on January 15, Geoffrey Manicone on May 22, 1993. 1994. Audrey is a senior court attorney to the Pamela Gronauer Hill and her husband, Honorable Charles LaTorella, Civil Al Hill, announce the birth of a daugh­ Kodwo Pere Ghartey-Tagoe and his wife Court in Queens, New York. ter, Elizabeth Lea, on December 8, announce the birth of a second child, 1993. a daughter named Essie Aseda, on Sally J. McDonald was married to Rich April 17, 1994. Levin on October 16, 1993. They Gordon F. Kingsley, Jr. and his wife, reside in Chicago, Illinois, where Sally Barbara, are the parents of a son, David M. Feitel and his wife, Lorin is an associate with Rudnick & Wolfe, Wilder, age two. Monroe Feitel, Class of'89, announce the birth of their first child, a daughter practicing labor and employment law. Alexandra D. Korry and Robin Panovka, named Alexandra Lee Feitel, on Janu­ Michael J. Watton and Debra Marcus both Class of '86, announce the birth ary 29, 1994. Watton, both Class of '90, announce of their first child, Rebecca Michelle the birth of their first child, a daughter Panovka, in November 1993. Martha Schauer Klinker and her hus­ band, Mike, announce the birth of named Melissa Lauren, on November 24, 1993. '87 Joel B. Bell was married to a second daughter, Meredith Stone Susan Taylor on December 4, Klinker, on October 21, 1993. Richard J. Oelhafen, was 1993. They reside in Baltimore, Mary­ '94 Jr. married to Alvina M. Ma on land, where Joel is director of interna­ '89 Lisa Maloney Crotty and her May 15 , 1994 in Nashville, Tennessee. tional team sports for Advantage husband, Jonathan M. Crotty, They reside in Atlanta, Georgia, where International. Class of'88, announce the birth of twin sons, Matthew Ryan and William Richard is an associate with Alston Jennifer Carson and her husband, Garrett, on January 15, 1994. & Bird. Ernesto Luciano-Perez announce the birth of their third child, a son named Gabriel Ernesto Luciano-Carson on September 25, 1993. He joins his twin sisters, Celeste Rene and Marina Janelle, who are three. VOLUME 12, NO.2 59

Obituaries

Class of 1925 Class of 1936 governor in 1947. In 1960, Walker was Charles Ware Bundy, 97, of Horace L. Bomar, Jr., 81, of Spar­ selected Durham's Father of the Year. Charlotte, North Carolina, died on tanburg, South Carolina, died April 25, Walker is survived by his wife, January 10, 1994. He had practiced 1994. He was a senior partner in the Annie Carpenter Walker; rwo sons, law in Charlotte since 1925, retiring a law firm of Holcombe, Bomar, Francis E. Walker, Jr. of Durham and few years ago. He was the oldest mem­ Cothran and Gunn, which he estab­ Thomas Walker of Sarasota, Florida; ber of the Mecklenburg Counry Bar lished in 1946. He was an assistant and five grandchildren. Association and served on the Char­ United States attorney from 1940 to lotte Parks and Recreation Commis­ 1942 and served in the U.S. Navy in Class of 1937 sion. He had been a page in the U.S. World War II from 1942 to 1946. Carl H. Nissen, 81, of Meriden, House of Representatives and was a Bomar was past chairman of the Connecticut, died April 7, 1994. He member of the Mecklenburg Counry Kennedy Free Library, now Spartan­ was an World War II Army veteran, Democratic executive committee. A burg Counry Public Library. He was a and worked for the State of Connec­ World War I Army veteran, Bundy member and past president of the Spar­ ticut as a division chief in the Depart­ was a member of the American Legion, tanburg Counry Bar Association and ment of Transportation until his the Phalanx Masonic Lodge and Oasis of the South Carolina Bar Association. retirement in 1985. Temple of the Shrine. He was a member and past president of Nissen is survived by his wife, Bundy is survived by his wife, the Spartanburg Kiwanis Club and the Catherine Graycer Nissen; rwo Katharine; a sister, Mrs. Victor Will; Spartanburg Chamber of Commerce, daughters, Nancy Fryer of Branford, and a stepson, Robert Smathers. and a former board member and presi­ Connecticut and Judith Rooney of dent of the Piedmont Club. He was Wallingford, Connecticut; and six Class of 1932 a current board member of Spartan grandchildren. J. Berkley Wilson, 84, ofIndianola, Radio Casting and Tietex Corporation. Richard Milhous Nixon, 81, the Iowa, died on August 26, 1993. He He is survived by his wife, Martha 37th President of the United States, was a senior partner with the Indianola Grier Bomar; rwo sons, H. Leland died from a massive stroke on April 22, law firm of Wilson, Fowler & Fusco, Bomar, III and J. Grier Bomar of Spar­ 1994 in a New York Ciry hospital. Fol­ and was a member of the Indianola tanburg; a daughter, Berry B. Littlejohn lowing his graduation from the Law Men's Garden Club, the Iowa State Bar of Greenville, South Carolina; a School in 1937, Nixon returned to Association, the Warren Counry Bar brother, John Earle Bomar of Spartan­ his hometown of Whittier, California, Association, the Masonic Lodge and burg; rwo sisters, Lou B. Thomason where he practiced law for four years. the IOOF Lodge. He was a former and Elenor B. Hunt of Spartanburg; At the outset of World War II, he member of the Iowa Bar Association 11 grandchildren; and rwo step-grand­ worked at the Office of Price board of governors. children. Administration for several months, Wilson is survived by his wife, Francis E. Walker, 84, of Durham, then served as a noncombat Navy offi­ Ena; a son, Richard Whitcher of Des died on February 20, 1994. From 1942 cer in the South Pacific from 1942 to Moines; and rwo grandchildren. to 1964, he was assistant secretary and 1945. Upon his rerurn from service, legal counsel for Wright Machinery he won election to the House of Repre­ Class of 1933 Company in Durham. From 1964 sentatives, where he served until 1950. Norman Spark Herring, 85, of until his retirement in 1975, he was Nixon was then elected to the Senate. Green Valley, Arizona, died on Feb­ employed by Blue Cross and Blue From 1953 to 1960, Nixon served ruary 14, 1994. He practiced law in Shield of North Carolina. as vice president under Dwight D. Arizona and California, and before Walker was a member of the Dur­ Eisenhower. In that position, he the U.S. Supreme Court. Herring ham Ciry Schools Board of Education assumed many of Eisenhower's obliga­ is survived by a daughter; rwo sons; from 1965 to 1969, and was a member tions as leader of the Republican Parry seven grandchildren; and rwo great­ of the Durham Lions Club, serving and represented the Administration grandsons. as its president in 1946 and as district in many overseas trips. In 1960, he ran 60 DUKE LAW MAGAZINE / SUMMER 1994

for president, narrowly incLuding the special losing the election to t; efforts ofthe Duke Law John F. Kennedy. In School in the last ten 1962, he lost his bid years to educate Chinese for the California gover­ students about law and norship. He remained legal institutions. active in politics throughout the mid- In 1934, Richard 1960s, while also M. Nixon responded practicing law in Los to a notice on the bul­ Angeles and New letin board at Whittier York City. College, announcing In 1968, Nixon twenty-five $250 captured the Republican tuition scholarships presidential nomination to Duke University

~ and narrowly defeated l' School of Law. Nixon the Democratic nomi­ ! joined many other nee, Hubert H . Hum­ E needy Phi Beta Kappa phrey and a third party ...... ,.., ~ college graduates who candidate, George C. '--_~ ______-' 0 began their legal educa- Wallace. In 1972, he tion together at Duke Class of '37 Reun ion Dinner at the White House defeated Democrat in the 1930s at a Law George S. McGovern, to On May 9, 1972, President Richard M. Nixon hosted a black tie dinner in the White House for the School reorganized win his second term. He members of his 1937 Law School class and their spouses. Present to celebrate their 35th reunion were, under the leadership left to right, top row: Hale McCown, William E. Washburn, Carl H. Nissen, Davis Williams; fourth row: resigned the presidency Arthur A. Brooks, Jr. , Harland F. Leathers, Therman J. Troxler; third row: William R. Perdue, Jr. , Thomas B. of President William on August 9, 1974, dri­ Stoel , Lyman Brownfield, James M. Haley, J. Mack Holland, Jr. , William J. Baird; second row: Fred Preston Few and Dean ven from office by the Albrink, William R. Lybrook, Charles S. Rhyne, David Henry Henderson, John David McConnell , Basil Justin Miller, who had Watergate scandal and Lee Whitener; front row: Claiborne B. Gregory, Caroline Phillips Stoel , President Nixon, Helen Lanier arrived from the Uni- . . Its ensulllg cover-up. McCown, Richard W. Kiefer, John Richard Fay, Emma Lee Smith Crumpaker, Homer H. Hilton, Jr. , and versity of Southern Sigrid Pedersen Foley. In the two decades California. They were following his resigna- taught by a young and tion, Nixon wrote many books and tion ceremony, we incLuded this printed brilliant faculty, attracted by generous traveled extensively. Nixon's wife, Pat, version ofthe statement in the May 8, starting salaries made possible by gifts died in 1993. He is survived by his 1994 graduation program. Though we do in the 1920s from James B. Duke. two daughters, Patricia Nixon Cox and not normally recognize the deaths offlc­ President Nixon worked while a Julie Nixon Eisenhower, four grand­ ulty, alumni or friends ofthe Law School student in the Law School library to children, and a brother. at graduation, an exception was made in supplement his tuition scholarship. this case because ofthe students' request He had a very distinguished academic In Memoriam Richa rd M. Nixon and because President Nixon's death had career as a student, graduating third in The following statement, written by occurred so cLose in time to the gradua­ his class and being honored with mem­ Dean Pamela B. Gann, was mailed to tion weekend We chose this permanent bership in the Order of the Coif He the Nixon Library for President Nixon's method to remember him at the ceremony was also invited to work with Professor fUneral services and to remain in the because the statement provides a usefol David Cavers on his new interdisci­ Library's archives. Having been asked summary ofPresident Nixon's associations plinary law journal called Law and by approximately 100 ofour students to with the Law School and his particular Contemporary Problems, for which he honor President Nixon at their gradua- interests in foreign affairs and China, wrote and published an article. He was VOLUME 12, NO.2 61

elected president of the Duke Bar Asso­ ciation, foreshadowing his interest in elective office. His family joined him in 1937 for his graduation, after which he returned to Whittier and became the first graduate of the Duke School of Law to become a member of the California bar. President Nixon has remained a loyal alumnus of the Law School, where his 1937 classmates established a student scholarship endowment fund in his name. Through gifts from stu­ dents, faculty and alumni, his portrait was presented to the Law School in 1969. President Nixon graciously hosted the 35th reunion of his class in the White House in 1972. He has been interested in the Law School's recent efforts to educate Chinese students in the law and legal institutions in a larger effort to create a rule of law in the Nixon Portrait Commissioned for law School People's Republic of China. In recog­ Renowned artist Joseph Wallace King is shown with President and Mrs. Nixon at the White House in 1969 with his nition of President Nixon's impressive portrait of the President. The portrait was commissioned by the Law School's Alumni Association and was presented to achievements in foreign affairs, several the School during the commencement ceremony in May 1969. The portrait was briefly removed by pranksters in 1974, but it was recovered undamaged and is now stored in a vault for safekeeping until such time as a decision can be made of these Chinese students have been as to where and how the portrait may be appropriately displayed and protected . awarded the Richard M. Nixon Schol­ arship, along with American students who have shown a special interest in He alone was able to communicate to written several books, much of the con­ international law and organizations. the Chinese leaders the outrage and tents of which deal with the views of a President Nixon had a distin­ disappointment in the United States senior statesman about foreign affairs. guished and innovative record in inter­ and elsewhere about these events, President Nixon will be considered by national affairs during his presidency. warning the Chinese leaders not to many to be the most interesting presi­ His 1972 visit to China was probably sink into "a backwater of oppression dent in this century in the conduct of his greatest foreign policy triumph, cre­ and stagnation." He is also closely asso­ foreign affairs, both as president and as ating the opportunity for the United ciated with modern international arms a subsequent senior statesman. States later to establish formal diplo­ control treaties. He signed the SALT President Nixon is the only grad­ matic relations with China for the first treaty in 1972, and in his recent writ­ uate of Duke Universiry to hold the time since the Communists controlled ings, he has stressed the importance offices of vice-president and president China. He was deeply respected by the of recognizing the limits of the use of of the United States. The Duke Uni­ Chinese leadership for his seminal act force. He has always been concerned versity School of Law salutes its grad­ of diplomacy. His October 1989 visit with the issues and problems in the uate, President Richard M. Nixon, for to China, following the Tiananmen separation of powers between the his endless quest to address questions Square crackdown on demonstrators, Executive Branch and the Congress of public life and about humankind. was also probably his greatest act of in the conduct of foreign affairs. Since Dean Pamela B. Gann statesmanship as a former president. leaving the office of president, he has Duke University School ofLaw 62 DUKE LAW MAGAZINE / SUMMER 1994

Class of 1939 James Harrison Greene, 71, of Friends and Faculty Rufus Heflin Powell, III died April Syracuse, New York, died in February 7, 1994 in Durham. His first career 1994. He retired in 1982 as assistant Ruth W. Latty, 86, the widow of was as an agent for the FBI. He later general counsel after 31 years with the former dean of the Law School, Elvin returned to Duke University, where Carrier Corporation. He was a lieu­ R Qack) Latty, died in Durham on he was an assistant dean of the Law tenant in the Navy during World War June 15, 1994 following a long illness. School for one year, and secretary of II, serving in the Pacific. Mrs. Latty was a native of Ann the University for 16 years. Greene is survived by his wife, Arbor, Michigan, but was a longtime Powell is survived by his wife, Jean Jeffrey Greene; a son, James H. resident of Durham, moving here with Mattie Bell Thomas Powell; two Greene, Jr. of Hillsborough, California; Professor Latty in 1937. She received daughters, Martha Powell Wilkins of and three grandchildren. her undergraduate degree from the University of Michigan and a master's Raleigh, North Carolina and Margo Hal Akard Masengill, of Bristol, degree from the University of North Powell of Atlanta, Georgia; two broth­ Tennessee, died on August 23, 1993. Carolina at Chapel Hill. ers, Joe Reade Powell of Charlotte, A World War II Army veteran, he She served as librarian for the North Carolina and Lt. Col. Thomas practiced law for over forty years in his Durham Public Library for many years. Clay Powell (Ret.) of Lady Lake, Flor­ native Tennessee. He was a member She was an artist known for her paint­ ida; a sister, Anne Powell Leathers of of the Sullivan County, Tennessee and ings and was a frequent exhibitor Durham; and two grandchildren. American bar associations. throughout North Carolina. She was Masengill is survived by his wife, a member of the Folio Club of Dur­ Class of 1947 Carrie Jean Masengill; five daughters, ham, Durham Arts Guild, and the Arthur B. Craig of East Lansing, Ann Habenicht of Seattle, Washington, Three Arts Society. Michigan, died on September 3, 1993. Ellen Keys of Lilburn, Georgia, Marsha Mrs. Latty is survived by a daugh­ He retired as a bill drafter and head of Benthin of Kalamawo, Michigan, Eliz­ ter, Joan Latty Freeman of Pacific research for the State of Michigan abeth Stark of Aspen, Colorado, and Palisades, California; a sister, Mary Legislative Service Bureau. He is sur­ Logan Nance of Fort Collins, Colorado; Elizabeth Gall of Pacific Palisades; a vived by his wife, Isabel; a son; his a sister, Margaret DeVault of Bristol; brother, Phillip Wagner of Baltimore; mother; three sisters; and a grandson. 12 grandchildren; two nephews; and and two grandchildren. one mece. Class of 1948 George l. Breithaupt, 73, of Mount Class of 1973 A. Kenneth Pye, 62, former profes­ Vernon, Ohio, died on June 15, 1994. William E. Walter, 46, ofWyn­ sor and dean of the Law School, died For many years, he was a practicing stone, North Barrington, Illinois, died on July 11, 1994 after a short battle attorney in Knox County, Ohio, and November 30, 1993 in East Strouds­ with inoperable cancer. His failing had been a clirector of the Peoples Bank burg, Illinois. He was a corporate attor­ health led Pye in late June to resign in Gambier, Ohio. He was a former ney for Borg-Warner Corporation in as president of Southern Methodist chairman of the Knox County Demo­ Chicago. University, a position he had held for cratic Party, and was an Army veteran Walter is survived by a son, almost seven years. of World War II. Geoffrey William of Garden City, Illi­ Pye came to Duke in 1967 as dean Breithaupt is survived by four nois; his mother, Madelyn McConnell of the Law School; he also served two sons, George Breighaupt, Jr. of New of East Stroudsburg; a step-sister, stints as chancellor of Duke University, York, New York, John Breithaupt of Coleen McConnell and a step-brother, from 1970-71 and 1976-82. He had Wakefield, Massachusetts, James John McConnell, both of Stroudsburg. also been university counsel and direc­ Breithaupt of Phoenix, Ariwna, and tor of Duke's International Studies Pro­ David Breithaupt of Gambier; a sister, gram. He was a former chair of Duke's Virginia Helbling of Dresden, Ohio; Athletic Council and had served as the and two grandchildren. NCAA representative from Duke. VOLUME 12 , NO.2 63

athletics by instituting tough reforms, including closer supervision of athletics and a system of checks and balances to guard against future problems," SMU has said in a statement. A straight-talking administrator, Pye led Duke through many tough decisions, including the retrenchment and elimination of several programs and academic units at the University. He was an advocate of the American Ruth and Jack university as a strong center of under­ Latty are shown graduate learning and as a source of at the celebration professional training in law, medicine, of the opening of theology and business. the Law School's "Ken Pye was one of the most Rule of Law Center in April 1966. well-known persons in legal educa­ tion," notes Dean Pamela Gann. "He served as president of the Association Ruth latty Remembered of American Law Schools and was a The passing of Ruth Latty marks a close to a forcefully to what was weak as well as what was frequent speaker and writer on legal remarkable time in the life of the Duke Law excellent about this institution, what it needed, and education. While president of SMU, he School. She and Jack were married in 1926. They how to go about securing it getting done. She pos­ was the keynote speaker at a conference came here in 1937. Jack was the dean who, in the sessed a special wit, moreover, a Quickness that of university presidents and deans on 1950s, moved the Law School more dynamically made one want to check one's own impressions legal education last year. I have received with her, just to see whether, or how, one might than anyone had since its new beginning with the inquiries about his health from legal construction of Duke University. But Ruth was the have gone amiss. She passionately loved Jack, educators allover the country during spirit that moved Jack, and hers was also the spirit and Jack, I think, fully knew how lucky he was in the last few months. Ken had a special of a great person wholly in her own right as well. Ruth. Ruth was a genuinely gifted artist (her paint­ There will be other fine moments in the life of gift for using facts and statistics in his ings, as others have noted, are exhibited even now this University and this Law School. And there will analysis of legal education and higher and are still among my favorites) . She was also be other people memorable to each of us as well. education more generally. People loved well educated, smart, lively, and good looking as But I do not think they can be better than the times to hear him speak because he was in I'm pretty sure she knew. Uninhibitedly outspo­ when Ruth Latty was among us, or more memo­ such command of his topics. He was ken , articulate, always engaged, Ruth was fully a rable people than she. Here, at the "house that Jack also a fine teacher and scholar. He was partner in Jack's ambitions for the Law School and built," Ruth 's own presence will be greatly missed. the "compleat" professor and adminis­ in the mutually active professional lives they trator and served as an excellent men­ shared. She understood the University, she spoke William W Van Alstyne tor to younger colleagues about what it meant to be an university educator." George Christie, James B. Duke Pye left Durham in August 1987 including payments to players from professor of law, joined the faculty in to become the ninth president of boosters. Shortly before Pye arrived, 1967, the same year as Pye. Christie Southern Methodist University, taking SMU was banned from fielding a team recalls that "Ken Pye was an impressive over a university that just a few months for two years. Pye has been credited man. He was a born leader who was earlier became the first ever to receive with leading the school back from the able to deal with difficult situations the NCAA "death penalty" for chronic penalty period. "He quickly restored without flinching. Perhaps his greatest violations in its football program, the integrity and credibility of SMU single strength was his intellectual hon- 64 DUKE LAW MAGA Z I N E / S UMMER 199 4

Ken Pye Remembered

Remarks by Professor Walter Del­ of Saint Thomas Becket and Sir Thomas linger at the memorial service for Ken More; and on their examples he modeled Pye at Duke Chapel on July 15, 1994 his life. What I remember best about Ken was As Ken was to religion, he was to his laugh ; it came easily and often , fre­ law. Although he often laughed about quently following one of his own irrever­ silly laws and foolish lawmakers, and ent remarks . As perhaps only Judy and told wonderful stories about the foibles Henry are aware, the world could know of the bar, at the end of the day he was only some of what this great man was all deeply devoted to the concept of the rule about. of law, to the profound idea of norms In a vocation surrounded by pomp binding even on government itself. and circumstance , there was about Ken To work with Ken at Duke day after not a trace of pretense or pomposity. As day was to be constantly dazzled by his dean , he knew no limits to his job decisiveness, his gift for problem solv­ description; I remember seeing him early ing, his keen sense of strategy and tim­ on a Saturday morning cleaning up the ing, his vision of where a law school , and Moot Courtroom in anticipation of Law then a university, should go. But there Day. And I remember seeing him late in were still more important things to learn the evening, calling around the country from Ken-things like integrity, candor, to lawyers he knew personally tryi ng to fairness . His devotion to family was place in jobs the most hard-to-place of inspiring. In Ken , decency went all the his graduating students. way down. To many outsiders he must have In the end, what mattered most about seemed like a bull in an academic china A. Kenneth pye Ken was a simple matter: his deep and ------shop, grudgingly admired for his hard- abiding integrity. He went through life headed management skills. But to those on the law On the surface , Ken was always jauntily irrever­ and work determined to do the right thing , every time, faculty who knew him as acolleague , Ken was abril ­ ent, never pious, a Catholic leader of Methodist wholly regardless of whether it made people like him liant intellect, widely read in the classics , in history schools whose wit at times seemed to teeter on the or dislike him ... which , in the end , was why so many and in biography. As he became a university leader brink of anti-clericalism. And yet, those who know people loved him. he reveled in immersing himself in the great intellec­ him well knew that his deep religious conviction was I have never known a better man. tual pursuits of the many and varied departments a fundamental guide for his life and work. He read under his purview. Aquinas and Cardinal Newman; he studied the lives Walter E Dellinger, 11/

esty. He abhorred fake sentimentality. Iiams Pye, both of Dallas. Memorials to the A. Kenneth Pye Cancer Research Ken was a good and dear friend. He may be made to the A. Kenneth Pye Fund at the University of Texas South­ will be sorely missed." Scholarship Endowment established at western Medical Center. Pye is survived by his wife, Judith the Law School by former Duke presi­ Hope Pye, and their son, Henry Wil- dent and U.S. Senator Terry Sanford or CHANGE OF ADDRESS Return to law School Alumni Office , Box 90389, Durham , NC 27708-0389 PHONE 919-613-7016; FAX 919-613-7231

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