DukeLawMagan~n~e ______DEAN EDITOR ASSOCIATE EDITOR DESIGN CONSULTATION Pamela B. Gann Evelyn M. Pursley Janse Conover Haywood Azalea Graphics
CONTENTS
From the Dean ......
FORUM Germany's Unification and its Discontents Herbert L. Bernstein...... 4 The Tuna-Dolphin Controversy, the World Trade Organization, and the Liberal Project to Reconceptualize International Law Benedict Kingsbury...... 8 An International Manual for the Law of Armed Conflict at Sea Horace B. Robertson, Jr...... 14
ABOUT THE SCHOOL Duke's World Rule of Law Center and Founder Arthur Larson Made World Peace a Priority ...... 20 Law School Center Promoting National Security Law Conferences ...... 24 Duke Law Students Research Issues for War Crimes Tribunal ...... 25 Duke Law School Faculty: Becoming International in a Variety of Ways...... 27 Asia-America Institute Established ...... 33
THE DOCKET Faculty Profile: Donald L. Horowitz Exploring Ethnic Conflicts ...... 35 Duke Law Alumni Practice Around the Globe...... 38 Specially Noted...... 49 Faculty News ...... 61 Law Alumni Association News...... 63 Alumni Activities ...... 69 Obituaries ...... 83
Duke Law Magazine is published under the auspices of the Office of the Dean, Duke University School of Law, Durham, North Carolina 27708 © Duke University 1995. VOLUME 13, NO.1
From the Dean
his issue of the Duke Law much government monopoly; and lack Magazine focuses on law, law of intellectual property protection and Tyers, and legal education in a evolution to fit the new technology in global economy - topics of increasing most countries. Often domestic regu importance. lation, and international regulation to In the last few decades the United the extent that it exists, can retard the States has shifted from a domestic creation of natural linkages between manufacturing economy to a global financial markets and services and service economy. The shift is reflected information technology. The major in the evolution of American corpora driver of what happens in the develop tions into multinational corporations ment of capital markets and financial and by the global leadership of United services may be information technology States firms in many service fields, and telecommunications. For example, including legal services. These shifts we may discover in the future that will only intensifY as we move toward Microsoft has become the largest finan the 21st century. cial services deliverer in the world. Dean Pamela Gann Asia, outside of Japan, is expected At the same time, tremendous, to grow at seven to eight percent and darker issues exist. Development to require $1 trillion in new capital expand, so long as open flllancial throughout the world is causing seri investments in the next five years. These markets are maintained. These charac ous environmental degradation. The capital demands will be met from the teristics of the global economy enable projected environmental goods and private sector, which will take private nimble corporations to combine capital services market is expected to be at savings from throughout the world, and and labor in locations that favor the least $600 billion by 2100. The gap through private capital markets and highest quality production at the lowest between the "haves" and the "have financial services institutions, deploy total cost and that take advantage of nots" is widening, both domestically them where they are most needed. the lowest available trade barriers. and internationally. The income spread Areas outside the Organization for Eco Parallel to these trends are the between countries creates a threat that nomic Cooperation and Development revolutions in information technology demands assiduous attention, because and Asia are expected to grow rapidly and the transformations taking place if the "haves" do not share more with also, causing a large demand for capital the "have nots," huge immigration and there as well. Even in the West, signi refugee flows can occur. If funds do not ficant capital needs still exist, as illus The best law schools in the go into the "have not" countries, then trated by the privatization of the tele United States expect to work people are going to come out. Serious communications industry in Germany. ethnic conflict and human rights viola The financial services industry in the in the most dynamic and tions occur daily. Nuclear proliferation United States will be among the most difficult parts of the domestic is a threat ro world security. important actors in these global capital and world political economy. All of these significant issues that markets. I have just identified are global. More International trade flows are also over, all are legally intensive problems rapidly increasing. With the lowering in global telecommunications, which for national governments, international of trade barriers in many of the fastest will become the largest industty in the organizations, and the huge private growing parts of the world, the devel world. Capital and financial markets sector occupied by multinational cor opment of regional trade areas like and telecommunications are still porations. The best law schools in the NAFTA, and the transformation of affected, however, by serious global United States expect to work in the GATT into the World Trade Organi issues: continued barriers to free trade most dynamic and difficult parts of the zation, international trade should and investment in these sectors; too domestic and world political economy. 2 DUKE LAW MAGAZINE / WINTER 1995
These fields-global capital markets permits us to see things we would To succeed, they must also possess the and financial services, telecommuni otherwise take for granted. management and interpersonal skills cations and information technology, Students who expect to engage in required ro be effective in a large, com the environment, ethnic conflict and transnational practice are encouraged plex organization servicing the most human rights, international security to continue to improve their foreign talented and demanding clients in present some of the most pressing language skills and, in particular, to the world. Young lawyers must also be issues that they will be addressing. take law courses taught in foreign comfortable working in an environ The curricula of the high status languages. The percentage of foreign ment that reflects a great deal of uncer law schools unsurprisingly include a students enrolled in high status US tainty. The internationalization of great deal of attention to business practice and the rapidness of techno organization and the modern economic logical and business change create regulatory state, including the regula Imagine the cross-cultural significantly higher levels of business tion of securities markets and financial understanding that is uncertainty for clients and law firms institutions, telecommunications, the than in the past. environment, and intellectual property. gained when law school We already live in an interdepen Many courses focus on international classes composed of both dent world--economically; legally, and trade, business transactions, and forms in other ways. It is perhaps false even of transnational dispute resolution. American and non-American to categorize really important problems Most graduates of these schools will students are able to simulate and issues as domestic or international. encounter international and foreign transnaVonalnegoVaVons But this distinction has not yet disap law in their practice. For example, a peared in the organization of the legal practitioner in civil litigation likely will between lawyers from profession. Large US law firms service encounter foreign parties, the need to different countries. global corporations. Their young law discover evidence outside the jurisdic yers, whether American or foreign, tion of the United States, or the need are almost all trained in American to consider international arbitration. In law schools may well increase from 10 law schools, and mostly in high status all these instances, the US civil litigator percent to 20 percent, thereby enabling law schools. These schools possess an will come into contact with a foreign American students to work directly educational comparative advantage in legal system and lawyers. A practitioner with foreign students in the curriculum the training of lawyers, both domestic in corporate law increasingly works and to participate in a foreign language and foreign, for the 21st century. They with American clients making out table at lunch. Imagine the cross seek young women and men who have bound foreign investments and foreign cultural understanding that is gained taken the challenges of the global econ clients making investments in the US when law school classes composed of omy seriously in their undergraduate economy, thereby servicing the needs both American and non-American stu work in preparation for graduate pro of global corporations. dents are able to simulate transnational fessional training. The well prepared Because transnational lawyers will negotiations between lawyers from young lawyer-through a combination inevitably work with foreign law and different countries. of undergraduate work and study lawyers, law students are encouraged Lawyers who service global corpo abroad, and superb legal training-can to study comparative law. It introduces rations through large law firms are sub be among the finest legal professionals students to other legal systems and the jected to an extraordinarily demanding in the global economy. substantive law of other nations, and environment. Beginning associate law The faculty of the Duke University by showing how similar problems are yers in these firms are expected already School of Law has thought carefully handled differently by other legal sys to have mastered excellent legal writing about globalization, law, and the legal tems, it serves as a mirror back on our and communications skills and to profession and the Law School is own system. Often, in fact, comparison possess the finest analytical skills. They already known for its significant and shows the distinctive character of work in a fast paced environment, frequently unique contributions to American solutions to legal problems utilizing sophisticated computers these important subjects. and permits us to evaluate them more and information technology through Pamela B. Gann 73 knowledgeably. Comparison, in short, which their legal work is performed. Dean THE FORUM 4 DUKE LAW MAGAZINE / WINTER 1995
Germany's Unification and its Discontents Herbert L. Bernstein
ostra res agitur. This Latin phrase concluded an article of surprise, Chancellor Kohl worked out a deal with President Gor mine in this Magazine five years ago (German Unification: bachev that allowed Germany to remain in NATO with a reduced N Political and Legal Aspects ofCurrent Events, DUKE L. military force of no more than 370,000 men and on the condition MAG., Summer 1990 at 5). At that time Germany's unification was that non-German forces and nuclear weapons shall never be imminent; and "our" interest was certainly involved. Germany's deployed in the Eastern part of reunited Germany. neighbors and allies in the West as well as its neighbors and former Another highly sensitive issue involved Germany's Eastern adversaries in the East had a lively and perfectly legitimate interest border. As discussed in my earlier article, in strictly legal terms the in the conditions and modalities of the unexpected event which status of that border was still precarious even after the conclusion was going to reunite the two German states that had come into of treaties between West Germany and Poland in the early 1970s. existence after the second World War. From a more political point of view, Poland had reason to suspect that its interests would not be adequately represented at the "Two External Aspects of Unification plus-Four" negotiations to which it was not a parry. Also there Hardly anyone would have predicted the unparalleled ease may have been a feeling in Poland that the political forces behind and speed of the "Two-plus- Four" negotiations which resolved Chancellor Kohl which in their majority had opposed the treaties the so-called external aspects of Germany's unification. At fust, it of the early 1970s, would still be unwilling to accept the Oder appeared as if the Soviet Union would never agree to the member Neisse line as a permanent and immutable German border in the ship of a united Germany in NATO. On the other hand, the East. Eventually the Kohl government did exactly that. West was rightly concerned about the ptospect of an unaligned Finally, the continued membership of a united Germany in Germany with a well-trained and well-armed military force of the European organizations, especially in the Economic Commun half a million men, as it possessed at that time. To nearly everyone's ity, presented significant problems. How far could and would the other members go in agreeing to special conditions for the Eastern part of Germany during a transitional period? To what extent was the weight of a member state with 80 million people compatible with the delicate balance among the larger member states (Britain, France, Germany, and Italy) that had existed before? Fo r the time being these questions have been resolved too. Germany got fairly favorable transitional conditions for its Eastern territoty. Its con siderable increase in population as a consequence of unification, however, did not lead to an increase in voting power in the most important institutions of the Common Market. Only in the Euro pean Parliament is Germany's share of votes now greater than that of the other large member states; but this institution continues to be much less powerful than in Western democracies. In addition to these major political issues of the first order, innumerable other problems had to be addressed, some of them being of a highly technical nature, some involving significant socio-economic consequences. These included the termination of the rights and responsibilities of the four powers with respect to Germany as a whole and with respect to Berlin that I discussed in my earlier article. Also the withdrawal of the Soviet/Russian forces from East Germany within four years and their resettlement in Russia (with considerable financial assistance by the Germans) was arranged. The simultaneous withdrawal of the troops of all four former occupation powers from Berlin was another vexing and to the Russians-highly sensitive problem. Readers will probably recall that this withdrawal culminated in two separate farewell ceremonies in August of 1994-much to the chagrin of President Professor of Law, Duke University. Professor Bernstein, a native of Germany, Yeltsin who came to Berlin for this event. All of the arrangements dealing with the external aspects joined the Law School faculty in 1984. He previously practiced law in Germany, of German unification were accomplished within seven months. and was a member of the law faculty at Hamburg University before moving Considering that the international agreements and accompanying permanently to the United States. He also taught from 1967 to 1971 at the documents embodying the resolution of the complicated issues mentioned before had to be drafted ad hoc without the benefit of University of California. Professor Bernstein teaches in the areas of contracts, much, if any, preparatory work, it is truly amazing that this gigan comparative law, insurance, legal institutions, and international organizations. tic task was completed at all and within such an unprecedented VOLUME 13. NO.1 5
shorr period. This appears even more amazing in view of the fact both in the Eastern and in the Western part of the reunited coun that not all of the parties involved in this joint endeavor were try, albeit for different reasons. It finds expression in various forms, enthusiastic about the ultimate objective of their efforts: Germany's most drastically in sometimes acerbic jokes that "Wessies" (West unification. In fact, French President Mitterand arrempted to Germans) crack about "Ossies" (Germans from formerly Com prevent rapid unification when he traveled to East Germany in munist East Germany) and vice-versa. It also manifests itself in 1989; and Prime Minister Thatcher expressed her opposition to opinion polls, in the media, and in some elections in which the "precipitous" unification repeatedly and rather undiplomatically. PDS, the successor parry to East Germany's ersrwhile ruling They were, however, no match for the team of Genscher and Kohl Communist parry, has recently gained an amazing percentage of who knew how to placate the Poles, how to strike a deal with the votes in some Eastern German regions. These election results have Russians, and how to appeal to the goodwill of the Americans. generally been interpreted not as indicating a desire to return ro Today, more than four years after German unification a Communist regime-which the PDS itself does not advocate occurred on October 3, 1990, it seems that the apprehensions and but as a way of protest against those economic consequences of fears which Mitterand and Thatcher shared with millions of people unification that many people in Eastern Germany find unaccept in Europe and elsewhere have more or less disappeared from the able and which they tend ro blame on the "Wessies" rather than political landscape. To be sure, there have been occasional irrita on their former rulers who bankrupted their part of the country, tions in other countries about this or that policy pursued by the ruined its environment, and failed miserably to develop its German government, especially in matters supposedly affecting infrastructure. the stability of the German economy and in particular its currency, There are several identifiable grounds for disappointment such as interest rates. Also there have been serious concerns about with the results of German unification among citizens in both the resurgence of right-wing extremism in Germany. Violence parts of the formerly divided nation. Yet one needs to remember against foreigners and anti-Semitic actions provide more than suf that all too frequently emotions-of groups as well as individuals ficient grounds for such concerns. Sadly, however, activities of this -to some extent defY attempts at rational analysis. Without any kind occur in most European countries today; with respect to this doubt, that applies to the case we are considering here. Nonetheless, problem media attention is focused more on Germany than on any I will try to identifY what I regard as the most important legal and other nation. In view of the Nazi past there are very good reasons economic conditions inherent in the process of unification that seem for this; in all fairness, however, it should not be overlooked that to have contributed in no small measute to the present malaise. in electiom right-wing groups in Germany do not get nearly as much suppOrt as, for instance, in France or Italy-not to mention Currency Reform and Legal Perfectionism the alarming election results of similar groups in the former Soviet In the summer of 1990, the then still existing rwo German Union and other formerly Communist nations. This intensified states entered into the Treaty Establishing a Currency Union and expression of nationalism, xenophobia, and anti-Semitism has an Economic and Social Union that came into effect on July 1, obviously more to do with the collapse of the Soviet empire which 1990. By far the most important component of this agreement was for better or worse conttolled and contained these tendencies, than the introduction of the West German currency, the D-Mark, in with German unification as such which occurred in connection East Germany. The question of the rate at which the worthless East with the demise of Soviet rule in Central and Eastern Europe. German money was allowed to be exchanged constituted a most controversial issue whose resolution in the end was dictated-as Germany's Internal Problems one might expect-by political expediency, instead of economic All in all, unified Germany has proved, at least until now, to reasonableness. Sixteen million people in EaSt Germany were per be less of a threat than outside observers anticipated. So who are mitted to change large amounts of their money into D-Marks at a the discontents today? Ironically, they are to be found primarily rate of 1:1, the individual amount ranging from DM 2,000 to DM among the Germans themselves. 6,000 per person (roughly US $1,350 to $3,950) depending on That is not to say that there is any serious political movement a person's age; an even greater volume of worthless East German attempting to reverse or even only to slow down the process of uni money which people possessed in excess of the specified sums fication. In 1990 certain elements in the Social Democratic Party, could be exchanged at a rate of2:1. At the same time, the legal the largest opposition party, cautioned against the speed and some structures constituting the core of West Germany's economic of the modalities of unification. Among intellectuals, especially system and its very elaborate and advanced social and labor law among writers in East and West Germany, even more fundamental were introduced in East Germany. The principal purpose of this opposition was voiced against the very idea of unification. All of extremely generous arrangement was to provide an incentive for these calls went unheeded. And how could it have been otherwise people in East Germany to stay in their part of the country after when hundreds of thousands of people in the East were ready to several hundreds of thousands had already moved to West Germany exercise their new-found freedom to move to the West where living after the borders opened in November of 1989. conditions were so much better? Naturally, the most enterprising A few months later the formal unification of Germany was and most talented young people were in the majoriry among those accomplished by the Treaty Establishing Germany's Unity moving West. This wave of migration had to be brought under Unification Treaty-which took effect on October 3, 1990. By conttol in view of its potentially disastrous impact on the demo virtue of this treaty, East Germany, comprising the five re-estab graphy and thus on the future recovery of the East. Creating better, Lished states which had been abolished by the Communists in and eventually equal, chances in the East through unification 1954, joined the Federal Republic of Germany ("West Germany") seemed to be the obvious answer. by an act called "accession" in international and constitutional law. What we see in Germany today is a fairly widespread feeling One of the cardinal clauses of this treaty, its Art. 8, provides for of malaise over certain consequences of unification. It can be seen the wholesale adoption of all of West Germany's law by the "New 6 DUKE LAW MAGAZINE / WINTER 1995
Federal States," as they are colloquially called. The ueary, [Ogether regime kept prices for most basic consumer items artificially low. with its appendices, comprises several hundred pages wherein it With the introduction of a market economy, such subsidies had to specifies in minute detail exceptions [0 the principle just stated as be phased out, and people discovered that spending relatively large well as conditions for the transition f[Om the old East German law amounts of cash on expensive cars and similar items lefr them with [0 the newly adopted law. It [Ook the German negotia[Ors, and inadequate reserves to cope with a situation they had never experi the specialists in the various Ministries in Bonn supporting their enced before: rapidly and disproportionately rising costs of living. efforts, less than cwo months and only three sessions of the com Their understandable response was a vehement demand for higher plete negotiating teams [0 review the entire body of German law wages and salaries. Nobody could have expected that in the long so as [0 make the decisions about adaptations necessary for a run the level of compensation for employees in the cwo parts of smooth legal transition in the East. All of this occutred in tandem reunited Germany would remain grossly disparate. But wage with the negotiations concerning the external aspects of Germany's increases in the East should have tracked increases in productivity unification discussed above. which, in the wake of unification remained considerably lower than As a p[Ofessional achievement of the highest qualiry, the in the West. Under pressure from the traditionally strong German work of these tireless bureaucrats deserves praise and a great deal of unions, economic reasonableness was again ignored, and wage respect. The question remains, however, whether the substance of increases outpaced gains in productivity. As an inevitable conse their labors is equally praiseworthy. In a very informative book on quence, unemployment in the "New Federal States" is dangerously
his experiences as the principal negotia[Or on German uniry which high; after a slight decrease it still amounts [0 13 percent, while in has recently been translated into English, Wolfgang Schauble-a Western Germany it is slightly below eight percent. In the Eastern powerful figure in Chancellor Kohl's parry-makes it abundantly region where people had not experienced unemployment in more clear that he did not favor the wholesale adoption of West German than 50 years, the resulting malaise is great. Of course, a consider law by the East Germans and would have preferred a more selec able percentage of the unemployed would have lost their jobs after tive, gradual introduction of that law since he believed conditions privatization of their enterprises even if pay increases had been in East Germany did not permit the unmitigated application of more moderate. Under Communism these enterprises had [0 main several parts of West German law. For example, the Eastern states tain a workforce much larger than actually needed since for ideo lacked the corps of skilled professional bureaucrats [0 enforce logical reasons unemployment was simply not a viable alternative. environmental protection laws or Germany's very demanding con In summing up, the current negative reaction [0 unification struction codes and urban planning rules. (Under the German among East Germans can be explained [0 a large extent by these constitution the enforcement of most federal laws is in the hands fac[Ors: Legal perfectionism tending [0 impede investment, a of state agencies and officials.) It could be easily foreseen that politically motivated currency exchange rate, and unemployment application of all these strict laws in a region with a badly polluted resulting from low productiviry coupled with a disproportionately environment and a poorly developed infrasuucture was bound [0 high wage level and also resulting from streamlining the workforce create the most serious impediments [0 the dearly needed indus after privatization. trial investments. It is extremely costly [0 comply with these laws The other side of the ledger reads like this: In the summer in substance and it takes an inordinate amount of time for an inex of 1990 when the Treary Establishing a Currency Union and an perienced administration [0 process the requests by prospective Economic and Social Union was concluded, a "German Uniry inves[Ors for permits, waivers and the like. And yet even a man as Fund" was created with resources [0 be provided by the Federal powerful as Schauble had [0 give in [0 the pressures coming from Government and the West German states. It was stipulated that the (by then democratically elected) East German government this fund would transfer a [Otal of DM 115 billion (roughly US supported by Bonn bureaucrats who, as a matter "of principle" $70 [0 $75 billion) from West to East within the period from 1990 always weighing heavily in Germany-insisted on wholesale to 1994. At t11e time, it was thought that this amount would give adoption of West German laws in the East. the region formerly under Communist control a sufficient boost to This kind of legal perfectionism must be seen as one reason catch up wiili the West so as [0 stand on its own feet after 1994. for the fairly slow economic recovery in the "New Federal States" Chancellor Kohl and others in his coalition government made in the aftermath of unification. Schauble's foresight was well campaign promises [0 the effect that "no new taxes" would be founded. To be sure, there are other reasons not necessarily needed to finance Germany's unification. That was 1990, and how connected with legal perfectionism. They are, however, closely different everyiliing looks [Oday! Like so many politicians Kohl intercwined with the currency reform policy discussed above. had [0 eat his words. It is [0 his credit, however, that he admitted Obviously, the generous exchange rules created an enormous [0 have been mistaken about the full extent of East Germany's overhang of purchasing power which, because of the lack of an disaster-not hiding behind the phrase that "mistakes were made" adequate supply of consumer goods in East Germany, would which leaves it open who made them. The truth of the matter is ordinarily have led [0 an inflationary push. But West German and that transfer payments f[Om West [0 East since unification have non-German industry were only [00 happy [0 satisfY the demand. amounted [0 an average annual rate ofDM 170 billion (more
All of a sudden East Germans were able [0 enjoy the luxury of real than US $100 billion per year). Predictably, this has led [0 budget cars-as opposed [0 "Trabbies," aptly described as something like deficits and-you guessed it-quite painful tax hikes. A "solidariry a mini-car wrapped around a power-lawn mower-and many tax" was introduced in 1991 allegedly as a temporary measure and other benefits of a Western-sryle consumer sociery they had been then indeed abandoned for a while; it is back now for an indefinite deprived of for so long. period of time and amounts [0 a surcharge of7.5% on everybody's For many of them, however, a cruel awakening followed income tax. In addition, indirect taxes, in particular the already before [00 long. Their wages and salaries were far below Western extremely high gasoline tax, have been increased. Nobody taking levels. This was oflittle consequence as long as the Communist note of these dire consequences will be terribly surprised that VOLUME 1 3 . NO. I 7
unification doesn't look so great any more in the eyes of many and the Treaty announce as a principle that exptopriated property West Germans. nor falling into the first category shall be returned to the former owners or their successors in tirle; the statute implements that prin Property Issues ciple. Thirdly, exceptions from this principle are made in certain But there is still another legal/economic aspect of German circumstances, in particular for the protection of present owners unification which has contributed greatly to feelings of disen and holders oflimited rights in the ptoperty who acquired their chantment on both sides of the former divide and which, at least rights in an "honest" manner; other exceptions apply where the in the early stages of the post-unification period, may also have return of the property is physically impossible or would adversely been a cause for the slow growth of investment activities in the affect public interests and where a potential investor interested in "New Federal States." A thorny issue arising in the negotiations the property presents a feasible investment plan which the claimant between the twO German states eventually leading to the conclu cannot match. sion of the Unification Treaty in 1990 involved the taking of prop This solution bears all the earmarks of an unfortunate com erty by Soviet and East German authorities after World War II. promise, perhaps inevitably so. Speaking grosso modo one can say Several waves of expropriations without compensation, in other that it tends to pit millions of East Germans as present title holders words confiscations, swept over East Germany; the first occurred and tenants against millions of people mosrly residing in West in the immediate post-war period and concerned the owners of Germany as claimants for the return of property; more than two large agricultural estates as well as the property of people rightly million claims have been filed. It also pits potential investors in or wrongly accused of an active involvement with the Nazi regime need of reclaimed property against the claimants for that particular and/or war crimes. Other acts of expropriation, usually without piece of property. Finally, it has infuriated all those who cannot compensation, involved indusuial property, apartment buildings, reclaim property confiscated under the law or the sovereignty of and even single-family homes, especially if the owners were con the Soviet occupation power between 1945 and 1949. Critics of sidered to be "enemies" of the Communist regime. In many other the compromise solution argue that many of these unfortunate instances people lost their property not by an overt act of expro conflicts could have been avoided if a principle of compensation priation, that is not by the exercise of sovereign power. Rather, rather than physical return of the expropriated property had been many losses of tide occurred by virtue of a seemingly voluntary act adopted. Wolfgang Schauble, the West German chief negotiator of of conveyance. In fact, however, many property owners, especially the Unification Treaty, on the other hand, in his book rakes pride of residential property, were prompted to agree to such convey in the fact that his insistence on the principle of return instead ances by machinations of party bosses or Communist state officials of mere compensation helped the government to escape from an who themselves or whose "friends" frequently acquired the prop unbearable financial burden. At the time of the negotiations it erty in question on very favorable terms. In other cases the con was also argued that the takings clause of the Bonn constitution veyance was motivated by the unprofitability of a piece of property, required the physical return of unlawfully expropriated property again mostly residential property, due primarily to severe rent con unless compelling public policy reasons justified an exception from trols. These acts have sometimes been called "cold expropriations." this principle. As mentioned before, at the time of the negotiations between the two still existing German states in 1990, East Germany was Constitutional Law and Political Wisdom represented not by Communists but by a democratically elected As a matter of constitutional law the principle of physical coalition government in which the role of the senior partner was return of expropriated property was hardly mandated, even though played by the same party, the Christian Democrats, that led the some experts have made that argument. The acts of taking involved coalition in Bonn. Still, the two sides did not have identical views here were not acts of the government of the Federal Republic of with respect to the various issues to be resolved. In particular, the Germany which is subject to the Basic Law, the constitution of property issue was seen from widely divergent perspectives. The 1949 which includes a guarantee of private property and compen East German negotiators had in mind not the interests of Com sation in case of a taking of such property. The territory where the munist functionaries and their "friends" who had executed, and/or acts in question tOok place did not belong to the Federal Republic benefited from , expropriation measures; rather they were con at that time. Before 1949 the Federal Republic did not even exist. cerned about the protection of ordinary citizens who had acquired For these and other reasons, a group of people excluded from the ownership or certain more limited interests in expropriated prop principle of physical return by the "1945-to-1949" Clause who erty. The West German side felt that both for reasons of consti challenged the constitutionality of this exclusion, had their cases tutional consuaints and of political expediency they had to insist dismissed by the German Federal Constitutional Court. on the return of expropriated property "in principle." Thus even In terms of political wisdom one wonders whether the gains before the treaty was worked out, the two sides had to reach a on which Schauble prides himself are worth the price that Ger compromise on this most controversial issue. It was embodied in many continues ro pay for the solution he helped to engineer. The a document termed the Joint Declaration on the Settlement of conflict-ridden situation it created is likely to plague Germany for Open Property Questions ofJune 15, 1990 which together with an quite some time. And even though it is not the sole cause, it greatly implementing statute was incorporated into the Unification Treaty. exacerbated the mood of discontent prevailing in both parts of the The Joint Declaration, the Treaty and the implementing country. Conditions might have looked better roday if Schauble statute, as amended several times, have three essential components. had not had his way on the property issue and had been successfUl The first is that expropriations which occurred between 1945 and in his attempt to prevent the wholesale adoption of West German 1949 under the law or the sovereignty of the Soviet occupation law in the East. There is irony in the fact that a politician's suc power cannot and shall nor be reversed. Secondly, the Declaration cesses can be as fatefUl as his failures. 8 DUKE LAW MAGAZINE / WINTER 1995
The Tuna-Dolphin Controversy, the World Trade Organization, and the Liberal Project to Reconceptualize International Law Benedict Kingsbury
n the 1991 Tuna-Dolphin case, a three-member GATT dispute European Union (EU). All but one of the large-membership US settlement panel reported that the United States had violated environmental groups opposed-unsuccessfully-US ratification I GATT (the General Agreement on Tariffs and Trade) by of the 1994 GATT Uruguay Round Agreements extending GATT embargoing imports of tuna from Mexico-an embargo imposed and folding it into the new World Trade Organization (WTO). A because the Mexican tuna fleet did not meet US standards for politically potent coalition of environmentalist and pro-protection reduced incidental dolphin mortality. This brought forth a torrent ist interests-sometimes dubbed 'baptist and bootlegger' on the of environmentally-oriented criticism and proposals for reform of basis of a breezy assessment of the politics of Prohibition- has GATT. US environmental groups conducted an anti-GATT cam opposed recent trade agreements in several countries. Such oppo paign, invoking the image of a rampaging GATTzilia trampling sition is reinforced by others concerned that the free trade agenda on US environmental laws and on US sovereignty. In 1994 the US entails sacrificing labor rights, general human rights, social policy, lost another GATT Tuna-Dolphin case, this time brought by the global equity, or other important goals. The debate on trade-environment issues and the WTO tra verses some of the most fundamental problems of contemporary international law. The specific focus of the debate is how to con nect environment and trade, two spheres of policy and institutional activity that have evolved in isolation from one another. Behind much of the debate lie questions about how the legal system estab lished among sovereign states should respond to rising interdepen dence and to the globalization of markets, capital, information, and culture. Four sets of problems command particular attention. First are the increasing concerns about democratic partici pation in the international law-making and dispute settlement process. In particular, the traditional analysis of states as unitary actors, with the executive branch providing adequate international representation for the domestic civil society, has increasingly come into question. Second, relations between national and international action are central and defY simplistic categorization. Many pressing issues, including environmental protection, cannot be addressed effectively by individual states, while, in light of the weakness of international institutions, the rules promulgated by international bodies ofren depend on national action for their enforcement. Third, inter-state institutions are caught in a dual role, as they are created by and answerable to states, yet designed to regulate state behavior. Specialist inter-state bodies such as the WTO secure the power to regulate certain trade practices of states by protecting the sovereignty of states in other areas, but as international governance regimes cover more and more issues, this kind of trade-off becomes Professor of Law, Duke University Professor Kingsbury joined the full-time harder to maintain. Fourth, as is evident in the apparent conflict faculty of the Law School in 1993. He had previously been a member of the between some environmental treaties and WTO rules, it is per fectly possible for standards set in different international agree Law Faculty at Oxford, and had also taught as a visitor at Cornell Law School ments to conflict. A theory of international law is needed in which and the University of Padua. His research and teaching interests are in the problems arising from this tension between contractual and legis areas of public international law, international human rights, international lative models oflaw are rendered soluble, if not simple. These problems suggest that the traditional conception of environmental law, and international organizations This article draws on international law-an inter-state consent-based system premised the author's longer pieces in Alan Boyle (ed.) Environmental Regulation and on the freedom and juridical equality of mono-voiced territorial Economic Growth (Oxford, 1994) and the Yearbook of International Environ states-is overly beneficent toward states, and unpromising as a comprehensive framework within which to explain and systematize mental Law (forthcoming). The author is grateful for the helpful suggestions everything that happens already, let alone as a basis to deal with of colleagues Robert Schapiro and Amy Chua. further evolution. VOLUME 13, NO.1 9
One response is to argue that it is time to reconceptualize trapped by purse-seine nets used to catch tuna. In the 1991 case, international law, to move away from the state-centric paradigm Mexico challenged the embargo imposed on tuna from Mexico toward a broader view of international law as the liberal law of and other primary producing states whose performance with an emerging transnational civil sociery. Such a sociery is said to respect to incidental dolphin mortaliry was regarded by the US be founded on shared values and transnational interactions among as falling short of the standard set for foreign nations by the US non-state entities: corporations, bar associations, environmental Marine Mammal Protection Act (MMPA). The 1994 case was a networks, feminist groups, political movements, internet user challenge by the EU and the Netherlands to the US embargo on groups, migrant workers, religious institutions, and thousands of imports of tuna from 'intermediary' nations which had within other sttuctures. States are important actors shaping such a sociery, the previous six months imported tuna from primary producing but they are not the only actors. This is an attractive view to many nations subject to the US embargo. Neither panel report has been environmentalists who see state sovereignry as an obstacle to ratio adopted by the GATT Council, so neither has direct legal effect nal management of global environmental resources and the web within the GATTfWfO system. The reasoning in the reports has of interdependent ecosystems. On the other hand, national sover nevertheless reinforced the position ofWTO member states hostile eignty and politically-accountable national management also has to such sanctions, and has altered the negotiating environment its attractions-for many people in developing countries as well as with respect to trade sanctions in the WTO and in international some of the US environmentalists who opposed the WTO agree environmental agreements. ments. Some liberals favor the strengthening of international Defending itself in the GATT proceedings, the US argued organization to rein in states. Others fear that tendencies of state that the embargoes were simply the application to imports of bureaucracies to dampen or channel the market-liberated energies rules comparable to those applied internally to tuna caught by of non-state actors are replicated and magnified in international US vessels. The panels found, however, that the US rules did not institutions. Liberal views diverge, but the core features of the pro regulate tuna as a product so much as process and production posed liberal framework merit exploration. The next section of this methods (PPMs) for the product, and GATT has not hitherto paper will examine the ways in which the four sets of problems for countenanced regulation of foreign PPMs in most cases. The US international law referred to above were addressed in the Tuna measures were prima facie a quantitative restriction on imports Dolphin controversy in the WTO. The final section will use this contrary to GATT. The question was whether they were permitted case study to consider the possible contributions of the liberal pro under exceptions to GATT (contained in Article XX) allowing ject to reconceive in ternationallaw. certain measures necessary to protect animal life or health, or mea sures aimed at the conservation of exhaustible natural resources. The Tuna-Dolphin Cases The 1994 panel determined that the Article XX exceptions The Tuna-Dolphin controversy provides an interesting case did not allow one state to take trade measures which can work only study with which ro explore some of the implications of globali by forcing other states to change policies pursued within their own zation and liberalism for evolving conceptions of the international jurisdictions. Given that the US embargoes were prima facie con legal system. The WTO is a trade body, established to give effect trary to GATT, to uphold them under the exceptions would be to a unified and well-ordered body of global trade rules, with very (as the 1991 panel had found) to change the balance of rights and modest environmental expertise. Its core set of rules for trade in obligations under GATT, and in particular to weaken the right of goods are those contained in the 1947 GATT (re-adopted by the access to markets. In taking a circumscribed view of the relevant Uruguay Round agreements), and these make no reference what exceptions, the panels undoubtedly reflected the preferences of ever to environmental protection as an explicit justification for the vast majoriry of member states, and both panel reportS were departure from trade rules. The trade-environment debates forced warmly welcomed. it to confront a set of issues with which it was ill-equipped to deal. Ideally it might have looked to a body of co-ordinate competence Four WTO PrinCiples Concerning the Nature of the spe.:ializing in environmental matters, but international environ International Legal System mental rules are still only fragmentary, and there is no comparable Amongst the myriad of legal issues raised by the Tuna environmental body capable of settling a range of trade-environ Dolphin cases and related trade-environment debates, four prin ment disputes. In a more advanced legal system there might be a ciples bearing on the nature of the international legal system were body of overarching competence to resolve such problems, but the adopted or implicitly relied on by the Tuna-Dolphin panels. The only general judicial body, the International Court ofJustice, is not problems in maintaining each of these principles raise in a very likely to deal with such cases very often, and political bodies such practical way the question whether the present framework for as the UN Commission on Sustainable Development are not effec international law is adequate for present and future needs. The tive enough to resolve many sharply focused disputes. four principles will be discussed in turn. The Tuna-Dolphin cases (1991 1 and 19942) arose when the US unilaterally closed its markets to one product, yellowfin tuna, 1. State 'Representatives' Define Interests, Make the Rules, in order to protect stocks of a different species, dolphins, found and Settle Disputes in the high seas and the fisheries wnes of other countries. In the The WTO is a structure predicated on sovereign statehood Eastern Tropical Pacific dolphin swim above tuna and are often and the centraliry of states as makers and enforcers of trade rules and trade policy, arbiters of disputes, and negotiators of compro mises. The WTO continues to regard international trade as the I United States Restrictions on Imports o/lima (Mexico v. USA) , GATT doc. OS 211R, ILM 30 (1991) , p. 1598. business of state representatives, even while most trading is by non
1 United States Restrictions on Imports o/lima (European Economic Community and state bodies, and much of the pressure for and against trade rules the Netherlands v. USA) , ILM 33 (1994), p. 839. and policies comes from sources not necessarily represented by the 10 DUKE LAW MAGAZINE / WINTER 1995
state 'representatives.' Consumer preferences, consumer boycotts, assistance, and other functions, although a surfeit of enthusiasm for NGO eco-labelling schemes, industry-wide practice codes, and NGOs has given way to more sober assessments of their capacities, unofficial standards all have impacts on trade relations but are not representativity, and accountability. necessarily within the control of states. Footloose capital, the rise of global sourcing and other forms of interdependence, and the 2. Enforcement Should Be By Collectively-Approved Action, decline of state traders, have all affected the position of states. Yet Not Unilateral Action states continue to use the wro to reinforce their managerial roles The Tuna-Dolphin panels manifest the belief that, except in trade. The state representatives gathered at the wro in Geneva where authorized under GATTtwrO rules, trade rights protected cannot in practice represent the entire range of interests affected by these rules ought not to be interfered with by unilateral action by trade rules. Nevertheless, the wro remains largely closed to by other states. all but accredited state representatives. This has been particularly The criticisms of unilateral trade measures are well-known. shocking ro US and other environmental groups accustomed Unilateralism in this context is not subject to effective international to considerable access ro government. Very recently the GATT / supervision, and the risk of mixed motives or the appearance of wro system has gingerly begun consultations with environmental self-serving behavior is high. In the 1991 Tuna-Dolphin case Mex groups, but a US proposal to invite such groups ro address the ico pointed out that the US tuna boat industry had largely left the GATT Council was drowned in a chorus of rejection in 1994. region where incidental catches of dolphins posed problems, and The wro faces the essential difficulty that, as an organiza noted that Mexico had been subject ro earlier US tuna embargoes tion created by and resting on the will of states and state represen imposed for quite different (protectionist or fisheries access tatives, it remains within their power to insulate the organization coercing) reasons.4 There is also a likelihood of subjectivity in cases from national and transnational civil society. Yet such insulation where the unilateral action is not taken to give effect to an interna threatens both the quality of the wro's product and, more seri tional standard. People in the US had formed a great affection for ously, its legitimacy in an international system no longer monopo dolphins, whether endangered species or not, and tlle US set about lized by states. Unsurprisingly, this dilemma is evident in problems pushing Mexico and other states to respect this affection even in of rule-making and dispute settlement. the absence of any international agreement on the point. Unless an States are represented in wro rule-making and dispute set international agreement on environmental standards is a prerequi tlement by their executive branches, usually government agencies site to trade action, it is difficult to see any basis for accepting US responsible for international trade or foreign policy. In the case of GATT-illegal enforcement of its dolphin policy shott of accepting the US, the executive branch continues ro enjoy considerable free that any state might determine and enforce its own 'wildlife' or dom in deciding how ro argue a case before a GATTtwrO panel, even 'environmental' policies. But other states endeavoring to and whether to acquiesce in the adoption of a panel report or to enforce environmental standards against the US are liable to find try to prevent adoption through diplomatic pressure and nego the price very high-the EU ban on beef fed with growth hor tiation. The executive has on occasion welcomed-and pethaps mones has been met with substantial US trade retaliation against even encouraged-adverse GATT tulings as a means to overcome the ED. Less powerful states do not have as many options for envi opposing pressures in domestic politics. In 1986 the Reagan ronmental unilateralism, a point illustrated by Austria's 1992 law administration successfully used an adverse GATT Panel ruling, requiring ecolabelling of all tropical timber (but not softwoods, adopted by the GATT Council with US acquiescence, to discour which Austria exported), which was repealed in 1993 under pres age Congress from reenacting an 1891 law which protected the US sure from Austrian exporters threatened with trade retaliation by printing industty by prohibiting import of various printed works Malaysia and other tropical timber states. In the GATT Council written by US residents. 3 debates on the 1994 Tuna-Dolphin report every representative to The system of rule-making and dispute settlement by nar speak (apart from the US)-a range including India, the Philip rowly-based state representatives-who may have more in com pines, Japan, Mexico, Canada, Australia, the EU, the Nordic coun mon with each other than with many of the societal interests they tries and several others-was against the US measures, and many represent-is increasingly controversial. Many Northern environ emphasized their deep-seated opposition to interventionism and mental NGOs believe the wro would reach more environment unilateralism. (Of course, this does not mean that none of these friendly decisions with a different representative structure. The has taken unilateral trade measures!) This view of the overwhelm insufficient involvement of interest groups, civic organizations, ing majority of states is reflected in the Declaration adopted by legislatures, and other elements outside the executive branch-the states at the 1992 UN Conference on Environment and Develop 'democratic deficit'-has been a difficult problem for most interna ment in Rio de Janeiro: 'Unilateral actions to deal with environ tional organizations. The EU has responded by strengthening the mental challenges outside the jurisdiction of the importing countty directly-elected European Parliament; the International Labour should be avoided.' Organization has long had direct representation of employers and The problem is that unilateral measures, although repugnant unions as well as governments; and some UN bodies have devised to the overwhelming majority, have on occasion been effective formulae for the limited inclusion of non-governmental organiza in securing compliance with existing rules or speedy adoption of tions (NGOs). These and other international institurions have new and stronger rules. The US has the most explicit policies in begun to recognize the direct contributions of national and trans this regard, raising familiar debates about US exceptionalism. It national civil society organizations to agenda-setting, information is possible that well-chosen measures by one state (particularly a gathering, scientific knowledge, compliance monitoring, technical
• Unittd States Restrictiom on Imports ofnma (J 991), para 3.58. Indonesia com 3 Robert Keohane has drawn attention [0 UUS example in work in progress on mented that this was the twenty-third time the US had embargoed imports of Contested Commitments in US Foreign Policy. tuna since 1975. Para 4.15. VOLUME 13. NO. 11
hegemon) will not plunge the system into chaos, while widespread limited to the examination of this matter "in the light of the rele reciprocity in such measures might well do so. The WIO pre vant GATT provisions", and therefore did not call for a finding on sumption of sovereign equality allows no space for such possibil the appropriateness of the United States' and Mexico's conservation ities. One aim of the Uruguay Round was to tie national trade policies as such.'5 The WIO's trade-oriented principles are thus enforcement action to the use of the WIO process. The long-term hierarchically superior, for WIO dispute settlement purposes, ro success of this ambitious reform will depend on highly effective the environmental principles found in other pans of international operation of the wro dispute settlement process combined with law. The panel saw itself as applying GATT but not general inter a major shift in member practices; the likelihood is that some national law: yet the GATTIWTO system is constituted and independent enforcement action will continue. operated within the international legal system. Failure to make reference to applicable rules of international law because they are 3. The WIO Protects States, within their Zones of not WIO rules manifests the common voluntarist view in inter Jurisdiction, from Impingement by Other States national law that parries can-within important limits-choose The Tuna-Dolphin panels concluded that policies of one state the applicable rules to be applied by a dispute settlement body. which are effective only through affecting the conduct of other Whether this systemic purity will continue ro be pursued in the states within areas of their own jurisdictional competence are not future must be doubted. The standard terms of reference have been within the GATT Article XX exceptions. Thus if such policies are broadened somewhat, and panels may increasingly come to recog implemented through measures which prima facie infringe GATT nize the wider public function of the WIO and their place within rights, the measures will not be saved by the Article XX exceptions a rule of law system. Autonomy is no longer claimed for WIO to GATT covering measures aimed at such objectives as protection trade principles vis-a-vis intellectual property, and it may be won oflife and conservation of natural resources. The GATT Secretariat dered whether the WIO will long hold the line on environmental has put the matter more broadly, treating territory (and perhaps issues. The WIO Trade and Environment Committee has already nationality) as the essential basis for jurisdiction regardless of the begun to discuss a lengthy list of principles of environmental pol transboundary or extra-jurisdictional dimension of many envi icy, ranging from the polluter-pays and the precautionary principle ronmental and economic interests. A central distinction is drawn to life cycle management and inter-generational equity. From an between actions taken by a state to protect its own domestic economic perspective, as Robert Repetto argues: 'neither trade environment from domestic production or the consumption of liberalization nor environmental protection are inherently or domestically produced or imported products, which are broadly inevitably more important. The measurable efficiency gains from permitted under GATTIWTO rules, and trade actions intended trade liberalization have usually been estimated to be in the range to shape the environmental policies of other countries, which in of 1 to 2 percent of GDP. Similarly, the costs of environmental many cases are not permitted. controls and the residual economic losses from environmental The dilemma for the WIO is that protection of each state's damages are both typically 1 to 2 percent of GDP in countries competence in this sphere is a quid pro quo to states for agreeing with strong environmental policies, and 3 to 5 percent in countries to the intrusive substantive trade standards established and super with weaker policies. Therefore, there is no strong economic case intended by the WIO system. The WIO presses states to observe that trade policy should take precedence over environmental policy, these trade standards within their territories, and a certain amount or vice versa.'G of enforcement by other states is countenanced. But the WIO's The most problematic implications of this principle for the trade disciplines also function as a shield for states from other WIO dispute settlement system involve conflicts between WIO forms of intrusion. rules and state actions taken pursuant to explicit trade-restrictive The wro model is of state environmental autonomy (from provisions in a widely accepted multilateral environmental agree trade measures) within territorially-defined spheres of jurisdiction. ment. Such trade restrictions are contemplated in treaties concern This is not a natural starring point for rational ecological manage ing endangered species, certain potentially harmful wastes, and ment. Ecosystems and environmental damage both run across state products from certain driftnet fishing nations. The clearest case borders. One of the core problems of global environmental policy is the 1987 Montreal Protocol on Protection of the Owne Layer, is achieving the necessary cooperation among over 190 different which contemplates obligatory and discretionary trade sanctions states: further buttressing of national autonomy is not necessarily against non-parties to prevent free-riding states from staying out a step forward. side the regime and gaining a competitive advantage while under The problem is particularly acute in relation to global com mining its effectiveness. mons such as the high seas or the stratospheric owne layer. The Most of the solutions presently under discussion in the WIO ideal of the inter-state system is that commons regimes are agreed duck the conundrum by employing state consent. The neatest by all nations, and enforced by all states against their own nationals such solution is a waiver ofWIO rules, in favor of the Montreal and throughout their own jurisdictional wnes. In reality free Protocol and similar treaties: such a waiver may be granted by the tiding by some states, and failures of state will or capacity, are vote of two thirds ofWIO members, and effectively binds the not infrequent. entire membership. However, several of the major actors, including the US and the EU, have expressed doubts about the adequacy and 4. The WIO Should Apply Only wro Principles The separation of trade and environment, and the absence of substantive environmental principles within the WIO system, I United StIlleS Restrictions on Imports olTuruz (1991), para 6.1. amounts to an assertion of the autonomy of the trade sphere vis-a 6 See Robert Repetto, Complementarities bttween Tratle and Environment Policies. vis environmental policy. In the 1991 Tuna-Dolphin case the panel in Zaelke, Orbuch, and Housman (eds.), TRADE AND THE ENVIRONMENT, stated that in accordance with its terms of reference, 'its task was pp. 237-46 at p. 237. 12 DUKE LAW MAGAZ I NE / W I NTE R 1 995
appropriateness of using waivers for such a fundamental long-term First, the problem of the democratic deficit might be met purpose, and the WTO does not yet have any agreed solution. by opening the WTO to wider participation. Systems ofNGO participation and direct elections may be more richly described The Liberal Theory of International Law by the liberal account-while they are understood within the exist Proponents of a new liberal paradigm for international law ing inter-state ftamework, but fit uneasily. The more fundamental envisage an expanding world of liberal states, spreading out from problems of representation in international trade are, first, that the Western heartland by diffusion or contagion. Such a world is national political processes attach much greater weight to the characterized by tendencies toward: the declining use of large-scale domestic interests represented there, and second, that both national military force in inter-state wars; states becoming representative and international political processes tend to attach more impor liberal democracies with independent judiciaries and flourishing tance to the concretized interests of likely winners and losers than domestic and trans-border civil societies; free if regulated market to the diffuse interests of larger groups whose losses or gains may economies fueling social interaction and demands for legal norms in aggregate be much greater but more distant and less explicit.8 and institutions; increasingly dense patterns of transnational One function of international institutions such as the WTO is to interactions among all organs exercising governmental authority, counter distortions introduced by these defects in representation. ranging from judiciaries ro securities regularors and sub-national The liberal theory would suggest adopting a system in which inter legislatures; and the erosion of significant distinctions between ests e.g. of exporters in other states are directly represented in the the international (including foreign poEcy) and the domestic. The national poEtical process, and in which diffuse interests are con international legal system should no longer be modelled as the law cretized through specifically empowered representatives. There made by states to regulate their mutual relations. Rather it should have already been modest developments in these directions, evident be seen to comprise: norms of interaction for individuals and in limited representation of foreign and diffuse interests in US pol groups in transnational civil society, many of which are chosen itics and in representational devices in the EU-the liberal scheme voluntarily by contract even if they often rely on state power for explains these developments much better than does the traditional enforcement; rules and decisions promulgated by state institutions framework with its assumption that foreign interests are repre in transnational dialogue with other relevant institutions; and the sented through foreign states. law controlling state action, which will be a mixture of interna Second, the difficulty of unilateralism is that while almost all tional agreements and national law, and will generally be subject states are against it-and there would be dire consequences for the to enforcement in national courtS and in supranational courts of international system if most states regularly attempted unilateral which the EU's European Court ofJustice is a prototype? enforcement-in the decentralized legal system unilateral trade This account seems to have much to offer. It captures the measures can seem to bring results, not only for the state using process of transnational legal interaction much better than do them, but on occasion for the international community more gen mainstream rule-oriented accounts. It acknowledges the impact erally. One influential theory holds that over and above unilateral of the market for legal rules and institutions, which has been well attempts by states to enforce existing international rules, certain documented in such fields as international commercial arbitration. violations ofWTO rules by unilateral enforcement of self-promul It incorporates the large bodies of legal practice which take place gated liberal trade standards above WTO levels make a positive with little or no reference to state legal institutions, such as the contribution in forcing the evolution ofWTO standards.9 establishment of standards (enforced by peer pressure) by transna The d.ilemmas of unilateral ism might theoretically be avoided tional industry groups. It takes note of the ways in which political by a radical shift to either a federal-type system with some central processes and transnational pressures condition state lawmaking standard-setting and enforcement, or a supranational system with and implementation. It gives some account of the patterns of con central standard-setting and local enforcement monitored from vergence and harmonization among national laws, and through the the center. At the international level such a vision applies at most analytical device of dialogue offers at least a possible view of ways to the EU-and unilateralism has not been eliminated there. The to ameliorate conflicts among legal systems. It unifies public and liberal framework does not resolve the problem, but posits the private, domestic and international. It caters to a limited degree containment of unilateral ism through the embedding of state to the impulses of cosmopolitanism, but without implausible dis power in a network of shared values and overlapping interests. placement of states or the even more implausible postulate that Some liberals advocate unilateral enforcement as a substitute for behavior will be based on a universalist ethic of equal duties to all collective action in rare cases where it is vitally needed to uphold human beings. It takes account of context and of values-at least a widely-supported norm and the arguments for it outweigh its process values, and probably Eberal market values roo. very high costs. This argument for circumscribed unilateralism har Positing such a liberal conception of international law as a monizes with the liberal disinclination to maintain the equality of substitute for the standard inter-state conception, does it cast any states as a central tenet. This is highly controversial prescription, more illumination on the problems surrounding the four WTO as the Tuna-Dolphin debates amply demonstrate, but the liberal principles discussed above? framework does at least provide a structure within which to explain and make some sense of current US practice.
1 See in particular Anne-Marie Slaughter Burley, International Law and International Relations Theory: A DualAgentla, AMERJCAN JOURNAL OF INTERNATIONAL LAw 87 8 See e.g. Robert Hudec, "Circumventing" Democracy: The Political Morality oJTratk (1993), pp. 205-39; and Anne-Marie Slaughter, A Theory ojInternational Law and Negotiations, NYU IN'L INT. L. AND POL. 25 (I 993), pp. 311-22, drawing lessons from International Relations, EUROPEAN JOURNAL OF INTERl'-JATIONAL LAw (forthcoming the circumstances (especially logrolling) in which US democracy produced the 1930 1995). The account of international law as the liberal law of a transnational civil Smoot-Hawley tariff. which exacerbated the world-wide economic depression. society discussed in the present article is an amalgam of various current ideas, not 9 Robert Hudec, Thinking About the New Stetion 301: Beyond Good and Evil in necessarily shared by any particular author-the comments relate to the hybrid Jagdish Bhagwati and Hugh Patrick (eds.), AGGRESSIVE UNILATERAUSM (Ann account, not to the positions of individual authors. Arbor, 1990), p. 113. VOLUME 13. NO. 13
Third, the mismatch between ecosystems and the territorial Conclusion strucrure of sovereign states creates grave problems of environmen The Tuna-Dolphin cases and the WTO trade-environment tal management-the WTO principle of non-impingement may debates raise difficult issues for the international legal order. All exacerbate some of these problems. The liberal conception of inter four of the WTO principles discussed here are intelligible within national law proposes several devices to address these problems: the traditional ftamework of international law. The problems with integrating local, national and international decision-making and them point (Q discordance between the traditional model of the rule enforcement to promote optimal commons management; cre inter-state legal system and contemporary needs. The liberal theory ating valuable interests in commons to overcome the market fail of international law as the law of an emerging transnational civil ures analyzed as tragedies of the commons, including some of the society has important attractions in responding (Q globalization inequities resented by developing countries; and assuring adequate and in proposing a theory of states in a legal system rather than a representation within national decision-making systems of interests legal system of states. When applied to a set of specific problems, of those living in other states. All of these devices can be under it exhibits useful explanatory power, bur on some of the hard issues stood within the present inter-state system, bur the Liberal concep seems to be more a vision of future worlds than an operational tion may well be richer in describing them and explaining their problem-solving system for the present one. While the European operation. When it comes to the hard issue of the use of trade Union, beloved archerype ofliberal theorists, has departed in sanctions as a technique for influencing environmental choices of interesting ways from all four principles adhered to by the WTO, other states, the liberal theory has fewer clear implications. Envi the EU remains an institution for the maintenance of states and ronmentalists favor sanctions through market closure or selective sovereignry rather than their eclipse. The expansive vision of Euro incentives through market access, in order to expedite standard pean Union is being called into question even in Europe-its setting, raise standards, and induce compliance. Yet sanctions have value as a model for the future of global organization must remain grave problems. As the Tuna-Dolphin cases graphically demon very doubtful. strated, states are often binerly hostile (Q sanctions as a means of The liberal framework of international law is helpful, but its pursuing environmental objectives even where they themselves proponents are often animated by a vision of a transformed world, endorse and pursue similar environmental policies. In some cases and tend to use the theory to prescribe for the whole world rather ineffectiveness of commons regimes is partly anributable to refusal than simply to explain parts. This triumphalist tendency sees the of rich countries to compensate poor countries for lost opponuni West as the only viable model, beckoning or coercing those in the ties or higher costs in complying with a new regime, an inequiry outer wnes of turmoil (Q transplant and internalize the Western generating compounded resentment where rich countries have in Ii beral package. the past profited from depletion of the same commons. The liberal If the future world envisaged by proponents of the liberal theoty suggestS that the damage sanctions cause to the people framework were ever (Q evolve, would it be as rosy as the most affected, and the inequities associated with sanctions, ought to optimistic depictions suggest? Probably not. The weakening of the weigh more heavily than the existing framework proposes-here, juridical equaliry of states would probably magnify existing dispari however, the liberal account may be more prescriptive than ties of power, and license the increased use of that power. New lay descriptive. ers of privilege among states and polities would emerge, probably Fourth, the liberal theory holds out the possibility of tran rewarding particular types of democratic polities and particular scending the conundrum created by the need of the inter-state thriving economic models. Some states would decline, but success legal system both to respect the will of states (which gives it author ful states could well maintain their positions and profit from the ity) and ro restrain the exercise of that will (through international decline of others. Essential new principles about optimal levels of regulation and enforcement). The liberal theory proposes that government and the management of regulatory competition at states not be understood as autonomous sovereigns subject (Q different levels would not easily be agreed. If a transnational civil nothing but themselves and the rules they have agreed to. It makes sociery can be said to exist and to be important, the power relations the plausible point that states and inter-state institutions do not within it are not necessarily more equitable than those in the and need not occupy the whole field. Rather states should be seen interstate system, and it may contribute no more to solving fun simply as imponant loci of power and authority within a transna damental problems of poverry, environmental degradation, and tional civil society which permeates through their borders. That sustainable development besetting much of humanity than does society finds voice and political expression through states bur not the inter-state system as traditionally conceived. The emergence of only through states-the interests of individuals and groups are necessary social panerns and structures within such a sociery would also expressed in many other ways. International law can be seen be a slow and conflictual process. The UN is already struggling as the law of such a transnational society, regulating states bur not with the problem of determining which NGOs legitimately repre dependent entirely on states for its existence, content, or imple sent which interest, and systems of accountability of civil society mentation. In more ambitious versions of this theory, state sover organizations are rudimentary at best. Such a society is bound to eignty is in some respects constitured by the law of the transna be associated by many with increasing globalization and cultural tional civil society, escaping the tendency within the traditional homogenization or dominance, and may well be viewed with sus framework for international law to take sovereignty as a pre-legal picion by those people, including members of some indigenous social fact. While the law of the transnational civil society is weak and nationalist groups, who already oppose the WTO, NAFTA, and ovetwhelmingly dominated by states, the basic conditions of and similar arrangements. Although it addresses problems with the Hobbesian anarchy (the metaphoric war of all against all) and principles animating the WTO, the liberal vision of a future world the security dilemma (the need of each state to achieve security, is diametrically opposed to the foes of ' GATTzilla', for whom which inevitably threatens the security of others) may persist: but neither transformative globalization nor the cosmopolitan liberal the possibility of their transcendence becomes a visible glimmer. displacement of national sovereignty seem remotely desirable. 14 DUKE LAW MAGAZINE / W I NTER 1995
An International Manual for the Law of Armed Conflict at Sea Horace B. Robertson, f r.
or seven years beginning in 1987 I was involved in a project about 30 participants was active in the deliberations of the Round to modernize the international law of war relating to armed Table for all or nearly all sessions. Twenty-six countries were repre Fconflicts at sea. This project was called the "Round Table sented in at least one session. I of Experts on the Humanitarian Law of Armed Conflict at Sea. " It convened initially in San Remo, Italy, in 1987 in a preliminary The Necessity for a new "Manual " session at the International Institute of Humanitarian Law of San The international law applicable to armed conflicts at sea is Remo under the sponsorship of the Institute, the University of a diffuse body of law drawn from many sources-the practices of Pisa (Italy) Faculty of Law, and the Syracuse University School of States (including national military manuals published by individual Law. The work of the Round Table culminated in June 1994 in countries for the governance of their armed forces), several treaties Livorno, Italy, with the adoption by the Round Table of the San on the law of war dating from the early part of this century (some Remo Manual on International Law Applicable to Armed Conflicts of which have never been ratified and none of which has received at Sea. The Manual and an accompanying paragraph-by-paragraph universal acceptance), the four Geneva Conventions of 1949, commentary, called the "Explanation," will be published by the the 1997 Additional Protocol I to the 1949 Geneva Conventions Cambridge University Press in a few months. (which applies primarily to the law ofland warfare but has some The Round Table was composed of a group of international provisions applicable to armed conflict at sea), and the so-called lawyers and naval experts from a number of countries. Although "Oxford Manual" on the Laws of Naval War Governing the Rela some of the persons involved were officials of their governments, tions Berween Belligerents adopted by the Institute ofInternational all members participated in their personal capacities and not as Law in 1913 (a non-binding but influential restatement of the law representatives of their governments. The membership of the group as it existed at that time). The very diffuseness of these sources of fluctuated somewhat over the seven-year period, but a core of law suggested that a review was necessary. In addition, a number of political events and technical devel opments taking place since the law was last "restated" in 1913 had profoundly affected the way that naval belligerents conducred naval operations against each other, as well as their relations with neu trals. Among the political events were the occurrence of rwo World Wars, the adoption of the United Nations Charter making the resort to the use of force illegal except for self-defense or when authorized under Chapter VII of the Charter, the generality of the practice by States since World War II of engaging in international conflicts without the formality of a declaration of war, and the significant changes in the law of the sea with the broadening of the territorial sea, the emergence and acceptance of the concepts of the exclusive economic wne, the continental shelf and archi pelagic waters. Technical advances included the emergence of the submarine as a commerce raider, the refinement of aircraft as weapons of war and aircraft carriers as the principal "ships of the line" (at least for major navies), the development of weapons of mass destruction and over-the-horiwn missiles, and the development of laser-guided projectiles and other sophisticated electronic warfare devices. The widespread practice in both World Wars of attacking enemy merchant ships without warning (particularly by sub marines), which was clearly contrary to traditional international law, brought into question whether these aberrations were merely violations of the law or had actually wrought a change in the law. Allied practices of so-called "long-distance" blockade and post World War II "blockade-like" practices {such as the Cuban Missile H.B. Robertson, Jr is Professor of Law Emeritus. He joined the Duke Law
faculty in 1976, after a distinguished career in the United States Navy. He was I Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, China, Croatia, the highest ranking legal officer in the Navy in 1975. Before retiring from Egypt, France, Germany, Greece, Iran, Israel, Italy, Japan, Netherlands, Nigeria, Norway, Poland, Singapore, Sweden, Switzerland, United Kingdom, USA, and teaching in 1990, he taught in the areas of international law and admiralty. USSR (succeeded during the course of the proceedings by Russia). VOLUME 13, NO. 1 5
Quarantine and the interdiction of shipping and air traffic to Iraq Table's deliberations. Where consensus was not arrained in the and Kuwait during the recent Gulf Conflict) had substantially Round Table's deliberations, the drafting committee would state altered the thinking of States as to the continued legitimacy of opposing views in brackets [-]. The drafting committee's report the traditional restrictive rules regarding these methods of naval was then presented to the plenary Round Table for approval. From warfare. the outset it was agreed that the report of each session would be provisional, subject to modification at later sessions in the light of APlan of Act ion the discussions at those sessions. The first session of the Round Table at San Remo in 1987 The work of the Round Table proceeded in this manner was convened without a very clear idea of what might emerge from through six additional sessions at Bochum (Germany), Toulon the deliberations. A number of the participants, including myself, (France), Bergen (Norway), Orrawa (Canada), Geneva (Switzer land), and Livorno (Italy). As the work progressed, the Interna tional Commirree of the Red Cross (ICRC) played a major role, primarily through the participation of one of its legal advisers as The international law applicable to armed the coordinator of preparatory work and chair of the drafting conflicts at sea is a diffuse body of law drawn commirree and harmonization group. The ICRC also was host for the Geneva session of the Round Table in 1993 and an interses from many sources. sional meeting of the harmonization group in the Spring of 1994. This was entirely appropriate, since the development of human i tarian law for the protection of the victims of armed conflict has were asked to give reports on certain segments of the traditional been one of the ICRC's principal roles since its establishment in law, highlighting what they saw as the current or emerging prob the last century. lems with the law as it was assumed to exist. Except for some gen The work of the Round Table was enhanced and given greater eral findings that "new technologies and methods of warfare, new authenticiry by the fact that the participants were not solely schol developments in the law of armed conflict and in the law of the ars and international lawyers. A substantial percentage of the mem sea and the increased possibilities of grave harm to the environ bers of the Round Table were naval officers, both active dury and ment as a result of armed conflict at sea" required further study, retired. Collectively they had vast experience in actual naval opera the Round Table did not come up with a plan of action to conduct tions in all spectrums and aspects of naval environments, ranging such study. It wasn't until the second session of the Round Table, from peacetime operations to full, wartime conflict and from small held in Madrid in 1988 under the sponsorship of the Institute, navies engaged in coast-guard rype activities to major naval powers that a defmite plan of action for developing a modern restatement employing the most modern, sophisticated weapon systems. of the law of armed conflict at sea emerged. The so-called "Madrid In addition to taking part in all sessions of the Round Table Plan of Action," which was adopted at the end of that session, except those at Madrid and Bochum, I also contributed to the idelltified five discrete areas of the law that should be addressed work of the group as the Reporter for the session at Orrawa in in subsequent sessions of the Round Table, as follows: - Military objects in the law of naval warfare - the principle of distinction The widespread practice in both World Wars -legal status of the merchant ship in the law of naval warfare of attacking enemy merchant ships without - target identification - Methods and means of combat in naval warfare warning . .. brought into question whether - mines, missiles, torpedoes and other weapon systems these aberrations were merely violations of - state practice in relation to exclusion wnes - Protection of different categories of victims of armed the law or had actually wrought a change in conflicts at sea the law. - Visit, search and seizure - Regions of operations in naval warfare (different maritime areasHthis topic referred to the changes that the 1982 UN 1992 on "regions of operations" and as a member of the drafting Convention on the Law of the Sea had brought about in the committee and harmonization group. This latter group was peacetime law of the sea.] tasked with harmonizing the texts that emerged from each session As to a method of work, the Madrid plan called for subse and drafting the Manual in its final form. Members of the har quent annual sessions to address one or more of the foregoing monization group also authored the "Explanation" (more about topics. Preparatory to each meeting a member of the Round Table this below). would prepare a paper on the subject assigned, making such pro posals as he/she felt warranted as a result of the study. These prep The Final Product aratory papers were distributed well in advance to the members for As is apparent from the above, it was not clear to the Round study and comment. At the meeting, all participants were free ro Table at the outset where its deliberations would eventually lead. comment and propose additions or modifications to the reporter's A consensus soon developed, however, that its work should lead proposals. At the end of each meeting, a drafting committee would ro some concrete product, but the form of that product was some attempt to assemble in "restatement" form the results of the Round what obscure. Some members thought that we should produce a 16 DUKE LAW MAGAZINE / WINTER 1995
draft treaty, which could be presented to the United Nations has been found guilty of aggression by the Security Council. The General Assembly or a sponsoring state2 as a preparatory text for Round Table had no difficulty in affirming that the rules applied negotiation of a treaty on the law of armed conflict at sea. Most equally to both sides, finding that the principle was well established participants, however, were less ambitious. What fmally emerged in international law and in accord with the humanitarian purposes is regarded by the Round Table as something in the nature of a of the law. In this respect, the Manual follows the example of 1977 "restatement" in the American Law Institute sense of that term Ptotocol I to the 1949 Geneva Conventions, which states in its an informal codification of current law but containing some ele Preamble that its provisions apply in all circumstances "without ments of progressive development. The Round Table would like any adverse distinction based on the nature or origin of the armed it to be considered as a successor to the Oxford Manual of 1913. conflict or on the causes espoused by or artributed to the Parties In any event, it is hoped that it will influence the behavior of States to the conflict." in their actions as well as introduce some international uniformity in the interpretation of rules applicable to armed conflict at sea. The Manual attempts to strike a balance The Substantive Content of the Manual between military necessity on the one hand In formulating what it considered to be the modern law of armed conflict at sea, the Round Table faced the dilemma of deter and humanitarian protection of civilian mining the status of many pre-World War I treaties and practices persons and objects on the other. (the "traditional" rules) which, although still technically in effect for a large number of States (including the United States in some instances), were largely ignored during and following World War A new element introduced into the Manual is the articula II. Were these traditional rules to be regarded as binding despite tion of the concept of the "military objective." While this idea their apparent desuetude, or was their non-observance to be was inherent in the traditional rules governing search, seizure and regarded merely as violations of the rules which did not affect their capture of enemy and neutral merchant vessels, it had never been continuing validity? A determination on these issues could not be articulated as a general principle of the law of naval warfare. The made independently of a consideration of the effects of the United idea behind this concept is the protection of civilian persons and Nations Charter, which limits the use of force by one nation objects from direct attack. The difficulty in naval warfare is that against another to situations of self-defense against an armed attack under traditional law, while only enemy warships and naval auxil or actions taken pursuant to resolutions of the Security Council iaries were subject to attack on sight, under certain circumstances under Chapter VII of the Charter. enemy merchant ships, and in some exceptional circumstances Under the theory of the Charter, any State using force against even neutral merchant vessels, were subject to capture and under another except under these limited exceptions would be deemed extremely restricted conditions to destruction. With the advent an aggressor and would be so labeled by resolution of the Security of the submarine and aircraft, with their limited capabilities for Council. Under the obligations imposed by the Charter, all mem stopping, searching and capturing merchant vessels, and removing ber States would be required to carry out the mandates of the passengers to safety before sinking them on the one hand, and the Council, including any measures against the aggressor to restore integration of merchant vessels into the war-support operations peace and security. In theoty at least, then, States engaged in a con and intelligence networks of the naval forces on the other, the flict were either aggressors or victims of aggression. There could be remptation to ignore these traditional restraints on attacking mer no such thing as "neutrality," since the principal duty of a neutral chant vessels on sight yielded to what was considered "military State was impartiality, whereas under the Charter system, States necessity." By defining the military objective and setting forth cri not involved in the conflict were obligated to support the decisions teria that must be met before an attack can take place, the Manual of the Security Council against the aggressor. In actual practice, attempts to strike a balance between military necessity on the one however, the system has worked as designed only in rare instances. hand and humanitarian protection of civilian persons and objects In most cases, the Security Council has been either unable or on the other. Under Manual rules these provisions apply to attacks unwilling to perform in this manner. In nearly all armed conflicts launched from any type of naval platform-surface, submarine that have occurred in the post-Charter era, both sides have asserted or aircrafr. that they are the victims of aggression and each has claimed to be Another area the Manualhad to address to bring the law up acting in individual or collective self-defense. Under these latter to date was the changes that had occurred in the law of the sea circumstances, the Round Table concluded that the concept of since the law of naval warfare crystallized in the early part of the "neutrality" remained a valid one and consequently devoted a Twentieth Century. At that time there was a consensus among substantial segment of the Manual to laying out the duties of States that the breadth of the territorial sea was three nautical miles belligerent and neutral States toward each other. and beyond that limit all the oceans were "high seas," free for A second issue raised by the Charter provisions was whether navigation and other lawful uses (including armed conflict) by all the rules adopted for the conduct of naval hostilities should apply States. The consensus on the breadth of the territorial sea began to equally to both sides of a conflict, even when one of the parties break down at the end of World War II. Since that time large num bers of States have made myriad claims to diverse types of national jurisdiction beyond three miles. Efforts to restore a consensus led 2 The Government of Switzerland, for example, convened the international confer ence which resulted in the negotiations of the twO 1977 Additional Protocols to to lengthy negotiations at several international conferences, finally the 1949 Geneva Conventions. resulting in the 1982 United Nations Convention on the Law of VOLUME 13, NO . 1 17
the Sea. This Convention, which now appears headed toward some navies that had little other offensive capability and limited near-universal recognition as the "new" law of the sea, recognizes technical capability for control of such weapons once they were a 12-nautical-mile territorial sea with several other areas of more launched. While it was recognized that, unlike in land warfare, limited coastal-State jurisdiction extending outward as far as 200 in most cases naval forces operating at sea were isolated from non nautical miles from the shorelines of coastal States. In the case of military objectives, there was the possibility that there might be a few archipelagic States such as Indonesia, the Philippines and protected vessels (e.g., hospital ships) in the immediate objective Bahamas, vast stretches of what had been high seas are incorpo area. A decision to launch an over-the-horizon, target-seeking rated into the "archipelagic waters" bounded by the outermost ("homing") weapon into such an area would violate the basic islands of these archipelagic States. Archipelagic waters have essen principle of international humanitarian law that parries may not tially the same legal characteristics as the territorial sea-that is, employ methods or means of warfare which are indiscriminate. subject to the full sovereignty of the coastal State with only minor According ro the Manua~ such weapons are indiscriminate if either exceptions to allow passage through them. (i) they are not or cannot be directed against a specific military Although the United Nations Convention is "peacetime" objective, or (ii) their effects cannot be limited as required by the law, the zones of national jurisdiction it establishes nevertheless rules laid down in the document. After considerable and heated affect belligerent-neutral relations, since the traditional law of debate, the Round Table included a provision that, in effect, made naval warfare had well defined rules governing permirred and pro over-the-horizon missiles and projectiles subject to the same rules hibited activities by belligerents in neutral waters and the duties of of target discrimination as other weapons. neutrals to enforce these rules against belligerents. The Round One area of the law of naval warfare in which the "traditional" Table, following the lead of several States whose national opera law appeared to be particularly outmoded was that governing the tional manuals had already dealt with these issues, incorporated belligerent's rights to interrupt commerce ro the enemy by means these new concepts of ocean space into the Manual short of attack. This area included detailed and technical rules Another issue that had to be dealt with in the Manualwas growing out of the practices of the 19th Century dealing with visit that of so-called "operational zones" in the oceans. The traditional and search, absolute and conditional contraband, capture and law of naval warfare had recognized the right of belligerent States prize, and blockade. Although modern practice (as exemplified by to conttOl neutral ships and aircraft in the immediate vicinity of the practices of coalition forces in the recent Persian-Arabian Gulf naval operations. Beyond that, there was no right to restrict the War) deviated substantially from the traditional rules, most experts movements of neutral ships and aircraft other than under the in this field of law recognized the utility of measures short of attack doctrines of visit and search and blockade. Nevertheless, since for interdicting or controlling commerce with the enemy. In the World War I belligerents had purported to demarcate large areas Gulf War, for example, the coalition forces interdicted all air and of the oceans as "exclusion zones," or "free-fire zones," or other sea traffic destined for Iraq and Kuwait. Yet no formal blockade zones intended to deny or restrict the normal rights of neutral was proclaimed, and the visit and search procedures did not result ships or aircraft in such zones. Other States had, for the most parr, in the taking of prizes but rather in diversion of the ships and air protested the establishment of such zones and had refused to recog craft to a destination other than one where transhipment to Iraq nize them. The Round Table recognized that under some circum or Kuwait was possible. There was no cordon of warships in the stances, the delineation of such zones was helpful in confining the immediate vicinity of the "blockaded" ports. The Manual's provi areas of hostile activities, but refused to accept the contention that sions take account of these modern innovations. With respect to States establishing such zones could thereby enhance their rights blockade, for example, the Manual maintains the traditional rules against neutrals or absolve themselves from their duties under requiring notification, formal proclamation, effectiveness, and international law. impartiality of enforcement, but allows flexibility with respect to the composition and stationing of the blockading force and with respect to the actions that may be taken against a vessel or aircraft Although the United Nations Convention arrempting to breach the blockade. With respect to visit and search, the Manual's provisions maintain many of the traditional is l'peacetime" law, the zones of national rules, but allow diversion from the declared destination as an alternative to visit and search and use of the system of "navicerts" jurisdiction it establishes nevertheless affect adopted by the British in World War II as a way of reducing the belligerent-neutral relations. need to visit and search at sea. As to contraband, the Manual abolishes the traditional distinction between absolute contraband (such items as munitions and implements of war) and conditional Another area as to which the law was largely undeveloped was contraband (items that may be used either by the armed forces or the law applicable to aircraft in naval conflict. The Round Table the civilian population) . fully integrated rules applicable to aircraft into the Manua~ taking Finally, the Manual contains a section on Protected Persons, account of the practices of States during and after World War II as Medical Transports and Medical Aircraft. While detailed provisions well as the current international rules promulgated by the Interna in this area of the law are found in the Second Geneva Convention tional Civil Aviation Organization for the regulation of air traffic of 1949 and the 1977 Additional Protocol I to the Geneva Con worldwide. ventions, and the Manual makes clear that, with one exception, its An area that proved particularly troublesome for the Round provisions are not to be construed as departing from those instru Table was how ro deal with over-the-horizon weapons that had ments, it arrempts to clarifY and amplifY the application of those come into the operational inventories of many navies, including treaty provisions ro situations of armed conflict at sea. 18 DUKE LAW MAGAZINE / WINTER 1995
The one exception from the Geneva law proposed by the tine wounded. The Round Table decided to include a provision Round Table is found in paragraph 171 , which states: for such defined "no combat" areas in the Manual and encouraged their use for any humanitarian purposes to which the parties In order to most effectively fulfill their humanitarian mission, might agree. hospital ships should be permitted to use cryptographic equipment. The equipment shall not be used in any circum The "Explanation " stances to transmit intelligence data or in any other way to About mid-way through the proceedings, it became apparent acquire any military advantage. to the Round Table that the usefulness of the ManuaL would be This is the only provision in the Manual in which the hortatory enhanced if it were accompanied by a detailed commentary on ("should") rather than declaratory mode of expression is used. The each of its provisions, explaining the sources of each paragraph Round Table used this form because it acknowledged that its pro and summarizing the debates that led to the final product. It was posal was contrary to the treaty law on the subject. Paragraph 2 of decided by the group that this task should be undertaken by the Article 34 of the Second Geneva Convention states that "hospital Reporters who had provided reports on each segment of the ships may not possess or use a secret code for their wireless or other Round Table's work. This group also formed the Harmonization means of communication." The Round Table recognized that this Group and participated in the work of the drafting committee. provision had not become obsolete because of desuetude. The Under the leadership of Ms. Lo uise Doswald-Beck of the Legal "should" indicated the Round Table's concern that the law should Adviser's Office of the International Committee of the Red Cross, be changed. this task was accomplished contemporaneously with the comple tion of the ManuaL The commentary, which the Round Table decided at its last session should be called the "Explanation," will The Round Table included a provision that, be published rogether with the ManuaL in a single volume. in effect, made over-the-horizon missiles and Significance of the Manual projectiles subject to the same rules of target The ManuaL and its accompanying "Explanation" represent a large investment of time and resources by the International discrimination as other weapons. Institute of Humanitarian Law, the International Committee of the Red Cross and the participants in the Round Table. The Manual and the "Explanation" will be published by the Cambridge In explanation of the proposal for a change in the rule, the University Press within the next few months. The Institute, the Round Table pointed out that communication technology has ICRC, and the participants hope that the work and study they changed dramatically since the rule's adoption in 1949. Today all have devoted to the project have served a useful purpose. With the radio traffic to and from warships is auromatically encrypted and end of the Cold War and the reduction of the possibility of global decrypted by equipment integral to transmitters and receivers. nuclear war, the likelihood oflocalized and regional conflicts Hospital ships "should have the same type of communication remains and may have increased. Under these circumstances, it is equipment to avoid delays in receiving vital information caused by important that the humanitarian rules that attempt to eliminate having separate and outdated radio equipment that does not have excessive injury or damage and ameliorate suffering be recognized the integral crypto function." Furthet, combatant forces would be by all parties to the conflict. In order for them to be effective, there reluctant to send "in the clear" messages as to rendezvous points must be some common understanding of these rules and uniform for transfer of the sick and wounded. The Round Table also noted interpretation of them. At this time, when many nationalmilitaty that Article 31 (4) of the Second Geneva Convention provides for establishments are engaged in revising their manuals and adjusting neutral observers on hospital ships. Such neutral observers could their military doctrines to reflect current politico-military realities, prevent abuse of the encryption capability. a new manual, prepared by an internationally diverse group of The Round Table also recognized the utility of the so-called experts rather than a partisan, national group, should be influential "Red Cross Box" agreed to by the British and Argentine govern in shaping the doctrines and practices of these national authorities. ments during the Falklands/Malvinas conflict of 1982. This neutral It was this hope that motivated and sustained the work of the zone was particularly helpful in the exchange of British and Argen- Round Table during its seven years of deliberations. ABOUT THE SCHOOL 20 DUKE LAW MAGAZINE / WINTER 1995
Duke's World Rule of law Center and Founder Arthur larson Made World Peace a Priority
hen Arthur Larson resigned as special assistant to Presi W dent Eisenhower in 1958 to found and direct the World Rule of Law Center at Duke University School of Law, Ike wrote: "I am delighted with the prospect that a real contribution to the rule of law among nations can be forthcoming from [the new Duke] center. To depose the rule of force, and to enthrone the rule of law in the dis position of international differences is imperative." Recalled Larson in a 1977 interview: "Ike said 'For anything else I wouldn't let you go, bur for this, go.'"
Establishing an International Rule of Law Duke's World Rule of Law Center was established with the objective to stimulate and forward acceptance "Can you direct me to the new Rul e-ol-Law Center?" asks Dr. Arthur Larson in a 1958 cartoon by John Sink 01 the of the rule of law at an international Durham Herald-Sun. level, including its use to settle disputes that threaten world peace. "The law, • To suggest avenues by which all gov a contribution to help in bringing edu however it may differ over the globe," ernments might reach the point of cational and research resources to bear said Larson, "is a concept that most general acceptance of the jurisdiction in the most effective way on the task people understand, and provides a com of such a court system as a matter of building a just and durable peace." mon meeting ground for men of rea of routine. The Mary Reynolds Babcock Foun son." (The technical term "rule oflaw" • To seek and find the various common dation also contributed a substantial is construed to mean that agreed-upon denominators among the laws of dif gift of$75,000 in 1960 to help meet legal machinery, rather than force, is ferent countries, and try to identify the Center's operating needs. put to use to settle disputes for which a workable core of law which would The Center's creation and vision a legal basis for settlement exists.) "The have general acceptance. fit perfectly with Arthur Larson's inter awesome alternative to acceptance of • To investigate possible ways of assur ests. "Law and world peace were rwo of the rule of law by various nations over ing compliance with International the biggest commitments I had in my the world is clear and increasingly Court decisions. entire life," he said. Larson served as ominous," stated Larson at the outser. The World Rule of Law Center the Center's director and chief advocate The Center, located within the was funded primarily by gifts, as well as from its birth through the mid-1980s, Law School's existing space from its grants for specific projects. Throughout by which time the Center had all but birth in 1958 and in an entire wing of the 1960s, Ralph Price and his family closed its doors. the School at the height of its growth, contributed over $376,000 to the set forth several long-range objectives: Center, creating The Ralph C. Price MaHers Legal and Justiciable • To reorganize the International Court International Peace Studies Fund. With From its inception, Larson stressed system in order to make it more acces his first gift, Price wrote: "For some that the Center intended to confine sible and effective. time I have been interested in making itself strictly to the rule of law as it VOLUME 13 , NO.1 21
relates to matters that were legal and served as director of the United States justiciable. It would not deal with Information Agency from 1956 to international problems that were essen 1957, then as a special assistant, chief tially political, nor with the possibility speech writer and special consultant to of "legislated" world law as distin Eisenhower on the rule of law. He left guished from judicial. Larson explained the administration in 1958 to head the that the Center did not do research Rule of Law Center, but continued to "in the abstract, but rather with the serve as special presidential consultant, solution to a problem in mind." The first to Eisenhower, later to Kennedy Center tackled the legal aspects of and Johnson. issues such as the struggle over Berlin, Kennedy reviewed another Larson the Cuban crisis and the legal basis for book, What we Are For, on page one United Nations forces . Over the years, of The New York Times Book Review in the Rule of Law Center researched and 1959. Later, Kennedy called Larson's published books and materials on these book, Arms Control Disarmament and topics, as well as on subjects such as National Security, one of "the most propaganda, national sovereignty, dis comprehensive and detailed studies Arthur Larson armament, security, population, and ever published on the subject of arms various forms of discrimination. The limitations and should be read by Center's research was frequently volumes of the treatise earned Larson everyone interested in the important requested by US congressmen and his national reputation in the early problems of our times." foreign embassies. 1950s. Over the next four decades, he Throughout the 1950s, '60s, and revised and expanded the treatise to '70s, Larson was called upon by presi Larson 's Rise To Prominence 11 volumes. "He is quoted by Supreme dents and legislators for his input on Prior to establishing the Rule Court justices in decisions," said a world and domestic affairs. He offered of Law Center at age 48, Larson had friend and colleague after Larson's advice-both solicited and unso already attained prominence within death in 1993. "That's very rare for sec licited--on topics including Medicare, the legal and political communities. ondary sources." In 1954, Larson was workers' compensation, sex, age and Born in South Dakota in 1910, Larson appointed Undersecretary of Labor racial discrimination, and atomic wea graduated from the University of South based on his expertise demonstrated in pons. In 1963 he was elected president Dakota Law School and was awarded his definitive books on fast-changing of the Peace Research Institute, a Wash a Rhodes Scholarship at Oxford Uni workers' compensation laws and on the ington-based non-profit research and versity. There he earned his B.A. and social security system. educational organization whose pur MA in jurisprudence in the 1930s pose is to stimulate research on the and his Doctor of Civil Laws degree Shaping Republicanism problems of achieving and maintaining in 1957 based on his treatise The Law In his 1956 book, A Republican a secure and peaceful world. All the of Workmen's Compensation. Looks at His Party, Larson argued for while, Larson maintained his direc After working as an attorney at new directions in Republican thinking torship of the Rule of Law Center. firms and agencies in Wisconsin and on both international and domestic Throughout his career, Larson Washington DC, Larson moved on to issues, coining the term "modern Re fought against extremism in the academia as professor of law at Cornell publicanism," which advocated taking Republican party, countering right Law School and dean of the University a position toward the center of the wing influences such as the John Birch of Pittsburgh Law School. It was political field. President Eisenhower Society. In 1964, Larson became chair during this time that Larson became read the book and sent for Larson. A man of the newly created National one of the world's leading authorities friendship and mutual respect quickly Council for Civic Responsibility, whose on workers' compensation laws and developed. goal was ro counter the extensive pro social security. Larson was asked to join the paganda efforts of the Birch Society Larson's ll-volume workers' Eisenhower administration, and spent and other militant right-wing groups. compensation treatise is considered a the next few years attempting to redraw He garnered national media attention standard reference work. The first two the party's philosophical basis. He that same year when he publicly 22 D UKE LAW MAGAZ I NE / W I NT ER 1 995
Rule of Law Center Helped Attract Top Minds to Duke
During its heyday, Duke's Rule of Law Center should take place," noted Larson when the project, officer at the US Embassy in Ceylon. A member of attracted some of the best and brightest minds to which was funded by the Carnegie Corporation, was the US Foreign Service from 1951 to 1960, Halder Duke to join the faculty and pursue their specialties. undertaken in 1962. "This is a welcome develop man had served the State Department as officer in Two of the faculty members recruited by Arthur ment, but it underscores the necessity for the fullest charge of Pacific Settlement Affairs for the Office of Larson in the 1960s were Kazimierz Grzybowski and and most accurate knowledge on our part of Soviet United Nations' Political Affairs. He also served with John Halderman. views, theories and proposals in the realm of inter the American delegation to the Palestine Concili national law," Larson contended. ation Commission . At the 1945 San Francisco Grzybowski Provided Soviet Expertise Grzybowski also took a year's leave of absence conference, held to create the United Nations, Hal Kazimierz Grzybowski was a nationally in late 1962 to become a visiting professor of law at derman served as secretary of the committee which known expert on Soviet law and a former director Yale. During that time he continued his work for the drafted the statute organizing the International of the Polish Information Court. Center for the Middle East. At the Rule of Law Cen A member of the Polish Bar ter, Halderman was assigned since 1936 and later adistrict to prepare an analysis of all court judge in Lwow, he needed research on interna received his master of laws tional rule of law, including and doctor of laws degrees determining the extent to from the University of Lwow, which research in this area and his SJD from Harvard was in progress anywhere in University. He served as a the world. While at the member of the 1950 Con Center, he published several gress of Comparative Law in booklets and articles, includ Lwow, aconsultant to the US ing "Regional Enforcement State Department on several Measures and the United cases , and editor of the Euro Nations" and "United Na pean Law Division at the tions Territorial Adminis Library of Congress. tration and the Development Grzybowski wrote num Arthur Larson, fourth from left, is flanked by faculty of the World Rule of Law Center, including John of the Charter." erous books and articles Halderman, far left, and Kazimierz Grzybowski, third from left. According to Professor on international law, Soviet Melvin Shimm, a colleague criminal law, economic problems of the Soviet Bloc, Rule of Law Center, including a study of adminis of Halderman's at Duke, Halderman "was very Polish legislation and politics, including his 1972 trative, organizational, and dispute-settling relations pained at the declining prestige of the United Freedom of Expression and Dissent in the Soviet between members of the Eastern European bloc, as Nations." Shimm says Halderman felt that no one Union. these bore upon the problem of federalism as it was entertaining the real and important role the UN He was recruited to Duke by Larson in the early stood at that time. could serve in international peace-keeping efforts. 1960s to work at the World Rule of Law Center, When the Rule of Law Center ceased to exist, Even after the Rule of Law Center closed its doors, which formulated early plans to reach out to the Grzybowski stayed on at Duke, receiving joint Halderman remained at Duke, continuing his Soviet people with aseries of Soviet-American con appointments in law and political science. He died research in transnational law, the United Nations ferences. In addition, Grzybowski taught courses in in April 1993, just one month after Larson died. and various peace-keeping matters. Halderman international law, international business transac passed away in 1990. tions and comparative law. While serving as asenior Halderman Advocated UN 's Role Grzybowski and Halderman were just two of the research associate at the Center, one of the projects in International Peace-Keeping notable scholars and experts recruited to Duke by Grzybowski headed was a study of Soviet interna John Halderman joined the Center's staff in Arthur Larson to work with the World Rule of Law tionallaw doctrine. 1960. As a senior research associate, he was Center. Some, like Halderman and Grzybowski , "The Soviet Union, although it at one time responsible for general research in the area of inter chose to stay on at the Law School after the Center placed little emphasis on international law in its for national law Before accepting the position at Duke, was phased out, continuing to enrich the lives and eign policy, has recently adopted the position that Halderman was with the US State Department's educations of both students and fellow faculty international law is one of the major areas in which Division of International Organization Affairs in members. the ideological struggle (with the Free World) Washington , DC. Prior to that, he was a political Laura Ertel VOLUME 1 3. NO. 23
crossed party lines to support Presidenr ference to launch a drive for a mora Larson's papers and publications Johnson's re-election over conrroversial torium on the escalating weapons race. will also be available later this year in GOP candidate Barry Goldwater. the Floyd Riddick Special Collections Johnson chose Larson to serve on an Center Phased Out , Room (cutrendy under developmenr) advisory committee to the presidenr on But Impact Remains at the Duke Law School Library. A issues affecting world peace and secu The Vietnam War signaled the combination of materials obtained rity. Although Eisenhower once told beginning of the end for the World by the library over the years and those a magazine that Larson was eminendy Rule of Law Center. ''As a result of a donated this past year by Larson's son, qualified to occupy the Oval Office number of things, funds supporting Lex Larson, will form the foundation himself, Larson felt more comfortable the Center began to dry up. Vietnam of The Larson Collection, focusing in the legal realm than the political was one," explained Larson in a 1977 on peace studies and international law. one. In 1965 he resigned as chairman inrerview. "When the US was waging Mark Bernstein, associate director of of the National Council for Civic an extremely questionable and long the library, says that these materials will Responsibility to devote more time to war, [it] was not in a good position be used as the basis for grant proposals his revisions of his Law ofWorkmen's to tell other people to use the law and and fund-raising efforts to purchase Compensation, and again dedicated his the United Nations to settle disputes. books and journals in support of peace time to further revisions as the Rule of Secondly, emphasis had shifted in the studies and inrernationallaw. Law Cenrer enrered its final phase. sixties from inrernational problems to domestic ones: poverty, urban blight, A Musical Analogy Supporting a Non-Proliferation Treaty race relations, the environment, and Throughout his tenure at Duke, In 1966, in his capacities as direc there was an abrupt shift in foundation Larson taught classes at the Law School. tor of the Rule of Law Center and as money into these areas." He continued to come to campus chairman of the newly-formed Edu By the mid-70s, the Rule of Law almost daily after his retirement to cational Committee to Halt Atomic Center had been reduced drastically work on his research and writings, even Weapons Spread, Larson wrote to in scope, down to three staffers from in later years when back and leg dif President Johnson: "The lack of [a a former high of27. "Such work ficulties interfered with his mobility. non-proliferation] treaty, after a year of became somewhat unfashionable In addition to his interests in law and discussion, increases the apprehension among foundations 10 years ago," world peace, Larson took time to pur of Americans, already profoundly dis said Larson in 1984. "Now it may be sue his inrerest in music. He was an turbed by world developmenrs, and that the pendulum is getting ready to accomplished musician and composer, provides incenrive to the non-nuclear swing," he added hopefully, "especially as well as a collector of rare stringed powers to devise their own nuclear pro when you look around the world and instruments. The walls of his Durham grams. Before world events foreclose see what a mess it's in." But the Rule home were covered with violas da the opportunity, it is imperative that of Law Cenrer would not be around gamba, violas d'amore, guitars, violins new initiatives should be undertaken to address the "mess." Inrerest in the and other rare instrumenrs. Larson to assure a treaty." international rule of law had dwindled, played and composed for all of these Two years later, Larson again made and by the mid-'80s Larson had retired instrumenrs. He and his late wife, national headlines when he announced and the Center was phased out. Florence, whom he married in 1935, that about 25 countries then had ade The original gifts donated by the would often perform for guests-she quate industrial and technological base Price family to help establish the Cen on the harpsichord, he on one of the to develop nuclear weapons, should ter continue to enhance the University. old instruments. they so decide. The Rule of Law By the early 1970s, an endowmenr had Larson once told Lift magazine Center published a pamphlet which been created from the funds in order that he liked the disciplined baroque addressed the spread of nuclear wea to award annual fellowships for the music "because it restores your sense pons. In 1969, charging the Nixon Martha Garner Price Research Fellow of sanity of the world." Throughout administration with stalling on strate ship Fund for visiting professors. his life, Arthur Larson too sought to gic arms talks with the Russians, lar Established in 1972, these fellowships restore a sense of sanity to the world, son and other influential politicians conrinue to bring visiting faculty to using the rule of law as his instrument. and Pentagon critics held a secret con- Duke today. Laura Ertel 24 DUKE LAW MAGAZINE / W I NTER 1995
law School Center Promoting National Security law Conferences
he Law School's new Center provided by Law Professor Paul H. on Law, Ethics and National Haagen-Justice Goldstone spent the T Security, founded on Septem rest of his time interacting with faculty ber 1, 1993 by Professor Robinson O. and law students, including a reception Everett (see Duke Law Magazine, Win in his honor. On this occasion, he ter 1994 at 20), has recently sponsored spoke at length about the Tribunal and several conferences on topics of interest the problems confronting him as its to the national security community. prosecutor, and then opened himself On November 4-5, 1994, the up for questions from the members of Center co-sponsored a two-day con the Law faculty and many others from ference in Charlottesville, Virginia on throughout the University who were in the subject of "Deterring Humanitar attendance. Finally, during a two-hour ian Law Violations: Strengthening brunch just prior to flying back to the Enforcement." According to Scott L. Hague, he met with approximately 25 Silliman, the Center's executive direc Duke Law students who are involved tor, "normative provisions promulgated in a pro bono research project with with a view toward prohibiting aggres the purpose of collecting case law and sion and humanitarian law violations other source material of relevance to Robinson O. Everett have been the subject of many articles, some of the complex issues facing the books and conferences, but the same Tribunal. emphasis had not previously been given School; Michael J. Matheson, Bruce C. For example, since those convicted to the question of how these normative Rashkow and Crystal Nix from the by the Tribunal will be sentenced by provisions should be enforced. In other Office of the Legal Advisor in the State reference to the criminal codes of the words, we needed further discussion on Department; The Honorable John former Yugoslavia, the students have what enforcement options are available H.P. Shattuck, assistant secretary for been doing a great deal of research in to the international community to democracy, human rights and labor at the codes then applicable in the now deal with such atrocities as we find in the State Department; Professor (and defunct Yugoslav federation and from the former Yugoslavia and in Rwanda, alumnus) Michael P. Scharf '88 from the individual republics. and that is exactly what we tried to the New England School of Law; and Meeting Justice Goldstone and accomplish in our first conference in many other distinguished academics having the opportunity to converse Charlottesville. " and policy makers in the national with him at length about issues facing The conference program featured security field. "It was a tremendous the Tribunal was an exciting and six panels, with subjects ranging from success," noted Silliman, "and we were rewarding experience for the students a historical perspective of non-compli encouraged by the comments of all involved in the project. "Speaking with ance in conflicts from the Korean War involved to have a second conference Judge Goldstone was a wonderful to Rwanda, to an in-depth analysis of where we could again look at some of opportunity to further understand the the problems facing the newly-created these highly complex issues. " goals and objectives of the Tribunal and International Criminal Tribunal for At the close of the conference in to gain greater insight into the legal the Former Yugoslavia, to the feasibility Charlottesville, Justice Goldstone issues surrounding international crimi and practicality of using national courtS visited Duke Law School at the invi nal adjudication," noted Siobhan K. to prosecute war crimes. Speakers tation of Dean Pamela Gann. After Fisher, a first-year student. "We left the included the Tribunal's prosecutor, attending the Duke-Virginia football brunch better able to define the ques Justice Richard J. Goldstone; Professor game-with a commentary and inter tions we should address in our research W. Michael Reisman from Yale Law pretation of the rules of the sport for the project," she said. V O LUME 1 3, N O .1 25
Following on the heels of its very the International Criminal Tribunal successful fall conference in Charlottes has been effective in dealing with the ville and Justice Goldstone's visit to former Yugoslavia and Rwanda, how Duke, the Center on Law, Ethics and the international community should National Security had another oppor deal with terrorism, the quest for a per tunity to host a conference focusing on manent international criminal court, national security law themes. Working and many others. "We're assembling with the Triangle Universities Security the world's leading experts," Silliman Seminar (TUSS), an interdisciplinary said, "and we can't help but have a consortium of faculty members from productive session in working towards research universities in the Triangle a resolution of some of these issues." area, the Center held a one-day con In quickly becoming a widely ference at the Thomas Center in the recognized forum for national security Fuqua School of Business on the sub concerns, the Center fIts within Duke ject of "Law and War" on January 20, University's outreach programs into the 1995. international community. According to According to Silliman, trus was John Norton Moore '62 Silliman, "I couldn't be more pleased part of a larger effort seeking answers with the support from Dean Gann and ro the causes of war, while pursuing the the entire Law faculty in everything same course of scholarly research con putting together a slate of international we've been doing. I JUSt hope that we're ducted by Quincy Wright of the Uni legal and governmental experts who will able to make a contribution that will versity of Chicago which resulted in his convene on March 9-11 for debate and further the Law School's-and Duke monumental 1942 work, A Study of discussion of such topics as whether University's-interests in this area. " War. "We were the fIfth in a series of 10 individual conferences," said Silli man, "each limited to a particular dis cipline and how that discipline looked Duke Law Students Research upon the causes of war, and we were privileged to have Professors John Nor Issues for War Crimes Tribunal ron Moore '62 from the University of Virginia School of Law, Ruth Wedge uke University law students Yugoslavia, visited the Law School in wood from Yale Law School, Yoram are working on a pro bono November 1994 to meet with faculty Dinstein from Tel Aviv University and D research project which could and students. Goldstone, a South others present their scholarly views on help strengthen the legal quality of African lawyer for 18 years before this vitally important topic." The con trials of war criminals in the former being appointed judge in 1980, served ference drew academics and practition Yugoslavia. The students are research as chairman of the Commission of ers from throughout the country. ing difficult legal issues arising from Inquiry Regarding Public Violence and But Silliman is most excited about international efforts to hold a United Intimidation preceding the election still another major conference slated for Nations' war crimes tribunal that will of South Africa's new government last March 1995 at Duke. "We're going to try and sentence suspects accused year. The investigating board, known as go back and revisit some of those issues of committing atrocities during the "the Goldstone Commission," uncov where we just scratched the surface at Balkan conflict. ered links between South African secu Charlottesville, and tackle some new Richard Goldstone, a distinguished rity forces and civilian militias opposed ones as well." In conjunction with the • judge from South Africa and the prose to the African National Congress and Center for National Security Law at cutor for the International Criminal issued an important report condemn the University of Virginia, Silliman is Tribunal for War Crimes in the Former ing those activities. Goldstone, ap- 26 DUKE LAW MAGAZINE / WINTER 1 995
pointed in 1994 by President Mandela for murder and other crimes in the to the new South African Constitu former Yugoslavia and the evidence tional Court, took leave from the Court required by a prosecutor to prove that in July 1994 in order to serve as prose a crime took place. Students are also cutor for the International Criminal researching precedents set at previous Tribunal for the former Yugoslavia. war crime trials, particularly cases tried His duties have recently been exanded in Yugoslavia resulting from events in by the UN Security Council to cover World War II. Other groups of stu atrocities in Rwanda. dents are working on legal issues con Law professors Benedicr Kingsbury cerning the transfer of accused persons and Madeline Morris, and CLENS from state authorities to the Tribunal, executive director, Scott Silliman, and the question of which inrernational are advising students involved in the law rules were applicable at different research project. "We have a large stages of the Yugoslav conflict, which number of students here who are depends in part on whether various interested in doing this kind of pro elements of the conflict were "inrerna bono work in the area of inrernational tional" or nor. Results of the research human rights," Kingsbury said. "These will be available to the Tribunal, defense Ri chard Goldstone proceedings will be the first major inter counsel, and anyone else interested. national tribunals since the Nuremberg "What the tribunal is trying to do is at and Tokyo trials at the end of World studying Serbian and Croatian, and the very cutting edge of inrernational War II. They will be breaking a lot of will spend much of this summer in law, " says Plowden. "The expectation new ground and will have to resolve Croatia. Students were able to locate is that what is done with the Yugoslav a lot of important legal problems. English translations of the relevant case cases will be an important precedent They face serious political obstacles, law, and other material being used is for other cases, such as the expansion but given that the UN has decided to in German, French or Russian. It is of the Tribunal to try to address the go allead, it is important that the pro expected that professional translations bloodshed in Rwanda." ceedings be of the highest legal quality, In March, two officials from the and that good research and analysis be Tribunal, William Fenrich and Minna available to all parties." Duke students have under Schrag, visited the Law School, along The tribunal, based at The Hague taken the task of collecting with several other leading experts in in the Netherlands, plans ro fix sen inrernational criminal law, to attend a tences for the defendants by reference case law and other source conference on "Strengthening Enforce to the criminal codes and practice of material from the now menr of Humanitarian Law," co-spon courts in the former Yugoslavia, Kings sored by the Center on Law, Ethics and bury said. Duke students have under defunct Yugoslav federation National Security (CLENS) at Duke taken the task of collecting case law and from the individual and the Cenrer for National Security and other source material from the republics. Law at the University of Virginia. now-defunct Yugoslav federation and Fenrick, a distinguished lawyer who from the individual republics. Lan is senior advisor on international law guage was one of the initial barriers the will be sought of some Serbo-Croatian to Justice Goldsrone, and Schrag, the law studenrs faced when they under material if English translations cannot Tribunal's senior trial attorney, held a took the project, recalls second-year be obtained elsewhere. stimulating session to discuss interim studenr Rob Plowden. Two first-year Legal issues students are research research results with about 20 students studenrs have been working hard ing include determining the sentences involved in the project. VOLUME 13, NO . 27
Duke law School Faculty: Becoming International in a Variety of Ways
he rise of the international approach in federal banking regulation on subjects which have an impact on corporation, growing eco and, of course, in my international Asia. (See article on p. 33). The faculty Tnomic interdependence among banking regulation course. The finan will also take part in teaching at the nations, and widesweeping advances in cial system has become so globalized Hong Kong program, bringing back the communication demand that the law now that it is simply essential to be type of invaluable insight that comes keep pace in an era of rapid and global aware of how financial services are reg only from travel and exchange abroad. change. It is no surprise then that the ulated in other countries-not merely Additionally, Duke Law School study of inrernationallaw at Duke is from a procedural point of view but professors are encouraged to and have flourishing. Now, more than ever, it is also in terms of the entirely different taken the opportunity to teach abroad critical that lawyers be aware of other cultural approach of such systems." in a variety of settings. An impressive modes, systems, and customs of law, Other faculty members regularly study number of faculty members have been for it is almost a certainty that lawyer and teach the comparative dimensions Fulbright scholars or lecturers. Many of and clienr alike will encounter transac of fields such as securities regulation, the faculty have lectured in foreign uni tions with inrernational implications. insurance law, and intellectual property. versities and attended foreign confer On a more philosophical level, the ences, bringing the total of countries in study of international law provides a Teaching and Lecturing Abroad which the Duke law faculty has taught basis of comparison from which to The reach of Duke's international or lectured to international audiences examine the choices our legal system focus extends far beyond Durham. in the past five years to 40. has made. Ultimately, such study pro Since 1985, the Law School has oper Professor Deborah DeMott, who duces a more thoughtful and effective ated a four-week summer program in has taught in Toronto, Canada, as a practitioner. Fulbright Lecturer in Australia, and in the Duke Transnational Institute in Including an International Focus Duke's faculty shine in the Copenhagen, Denmark-where the No Duke law student can escape teaching of al/ phases of Duke European program began his or her three year tenure without believes that the greatest result of her learning something about the relation international law Each year, experiences abroad has been deepened ship between United States law and the students may choose from insights into legal institutions generally: law of other nations. Law School fac a wide selection of courses "I think my own perspective on law ulty attempt to imbue his or her own has changed as a result of coming ro substantive area with a focus on its dealing with international grips with other systems and the way international aspects. In his adminis issues. they approach similar problems. I trative law class, for example, Professor had thought that the United States' Lawrence Baxter compares US admin approach to regulation was the only istrative law with administrative law Europe focusing on international, com way to go, that you couldn't have func in other countries. He emphasizes the parative, and foreign law. Since 1991 tioning capital markets [otherwise], enhanced understanding of United the program has been at the Free Uni which is obviously not true." This States law which the study of other versity of Brussels. Over 75 percent summer, Professor DeMott will return countries' laws brings: "I have always of the Duke Law School faculty have to Australia to teach a graduate course thought a comparative viewpoint-not taught in this program. In 1995, and to the Duke European program only for administrative law but for any Duke will operate a Summer Institute in Brussels, to teach the second half subject-is important in helping stu in Hong Kong, similar to the Brussels of a course giving a comparative intro dents (and their teachers!) understand program but more heavily concentrated duction to corporate law. She is look the characteristics of their own legal with students from Asia, New Zealand, ing forward to the interaction with systems ... I also use a comparative and Australia, and with a greater focus European faculty members, and values 28 DUKE LAW MAGAZINE / WINTER 1995
the friendship that she and several of laws of particular countries. However, in public international law. Born in the her colleagues formed in Copenhagen it generally refers to the study of both Netherlands but a citizen of New Zea with Professor Joseph Lookofsky, who public and private international law, land, Professor Kingsbury teaches pub has since visited Duke on multiple the export of American law, and the lic international law, a course on human OCCasIOns. growing field of international arrange rights, a seminar on international envi ments such as the North American Free ronmentallaw, and an interdisciplinary Trade Agreement (NAFTA) and the theoretical seminar on international law An International Curriculum General Agreement on Tariffs and Trade and international relations. Previously a Duke's faculty shine in the teach (GATT). Given the continued shrink visiting professor at Duke while he was ing of all phases of international law. ing of the world, knowledge of inter a lecturer in law at Oxford University, Each year, students may choose from national law will soon be required for England, Kingsbury's primary research a wide selection of courses dealing with attorneys practicing in most US cities. interests are in public international law, international issues. The broad term The recent appointment of Profes indigenous peoples and international "international law" may mean the study sor Benedict Kingsbuty has brought law, international organizations, inter of comparative law or the study of the significant expertise to Duke's faculty national human rights and human i-
Regular Visitors from Abroad Enrich International Curriculum
Duke Law School has established a long-term for about 320 people. I would not doubt that the US relationship with two international visiting faculty is a very litigious society. " As to the issue of members who return regularly to teach courses whether the Japanese constitution, drafted under and to bring the international perspective to our the auspices of the American occupational gov students. ernment after World War II, should be changed, Every other year, Koic hi ro Fu jikura, pro Fujikura believes that "we should not and need not fessor of law at the University of Tokyo , teaches change our constitution, especially Article 9 which courses about the Japanese legal system and renounces war as a sovereign right of the nation Japanese environmental law at Duke Law School. and the use of force as means of settling interna Further strengthening his ties with the School , he tiona l disputes. There are many other means than also serves as honorary president of the Tokyo Law sending troops in order to contribute to interna Alumn i Club, whose members are Duke Law tional peace and order." alumni living in Japan and which has been meet iii As one might expect, the Law School 's pres- 2 ing regularly since 1986. ~ ence in Belgium has led to Duke relationships with
Professor Fujikura finds "Duke Law students U European scholars. Professor Guy Haarscher intellectually curious and inquiring. I appreciate ~ comes to Duke every other year from Belgium, the fact that their interests are not narrowly focused where he is professor of philosophy and law and Koichiro Fujikura on laws in the United States ." In his course , he director of the Institute for Philosophy and the emphasizes that, "though the Japanese and the US Center for the Philosophy of Law at the Universite legal systems have different traditions and are con parison with the development of environmental law Libre de Bruxelles, to teach acourse about law and structed differently, they both work and operate in the US. " Primarily focusing on environmental political philosophy. He has written many books similarly to achieve common goals of law. Envi law and comparative torts in his research , Fujikura about philosophy and the philosophy of law, and ronmentallaw is one illustration where compara is currently working on a joint project to study the received the prize of the Belgian Academy in 1981 tive perspectives are useful. Japan and the US implementation of international environmental for his book on Marx and the prize of the French share many environmental problems of industrial accords in 10 countries. Speaking Community of Belgium in 1989 for his ized societies, yet their legal responses are differ Fujikura has written a number of publica book on human rights . ent. " Fujikura notes that the Japanese encountered tions comparing Japanese and US law, including In his political ph ilosophy and law seminar, serious industrial pollution problems in the 1960s, Environmental Law in Japan, A Comparative View Haarscher analyzes the relationships between to which they were forced to react and to which of Legal Culture in Japan and the United States, political theory and the law in contemporary phi they did react, enacting many protective environ and The Role of Law and Lawyers in Japan and the losophy. His seminar presents information from a mental laws. Fujikura believes that "Japan's expe United States (with Isaac Shapiro and Michael different perspective from the average black letter rience of environmental destruction should be told Young) . In comparing the two legal systems, he law class , focusing on an abstract theoretical and the process and development of legal notes: "In Japan , there is one lawyer for about framework which is then applied to concrete con responses in Japan should be analyzed in com- 8,000 people, where in the US there is one lawyer temporary legal and political issues. VOLUME 13, NO . 1 29
International Scholars Join Us From Closer to Home
Every other year, Percy lu ney regularly makes law, and society, and he finds Duke students stimu his way across Durham from North Carolina Central lating . He also enjoys talking with Duke faculty University where he has taught torts, professional members such as Paul Haagen about legal history. responsibility, law office management, conflicts of Ocko has found his contact with the Duke legal law, and international law since 1980, and where he community to be useful in his work as a consultant serves as dean, to teach courses in Japanese law at helping to bring American and Canadian software Duke. He has been both a Fulbright scholar and a into Chinese markets. Fulbright lecturer in Japan, and has written widely In the Chinese legal history course, Ocko on anumber of subjects, including business trans emphasizes status and the way that law applies to actions with Japan and the Japanese constitution. status. Ocko believes his mandate at Duke is to pro Equally persuasive when discussing the implica vide adifferent perspective than one usually finds in tions for Japanese society in the ritual of sumo alaw school class: "The reason it's [the Chinese his wrestling and the desirability of dispensing with the tory course] offered is as a consciousness raising jury system in American criminal cases in favor of course, if you want to explore atotally different legal three judge panels, the range of Luney's expertise system ." He teaches his classes at Duke like grad and interests is broad. uate seminars. As a history professor and a non Percy Luney Ageologist by training, Luney has always been lawyer, his slant is to look at law and society issues fascinated with the use that Japan makes of its nat and the way law interacts with society: "It's not a ural resources. While witnessing Japanese mining At Duke, Luney teaches courses in Japanese 'how to' course ... 1 want to teach students to under practices in Zaire as a Thomas J. Watson Fellow in law and international transactions with Japan. In the stand Chinese culture and how the Chinese think the mid-1970s, Luney was impressed with the international transactions class , students negotiate about the law, and then , they as practitioners can respect and sensitivity the Japanese demonstrated an agreement between an American company or the have the skills to function in that environment." As toward the indigenous population. His interest in US government and a Japanese company. The last part of the contemporary Chinese law and society Japan generally was stimulated by this incident, as time the course was offered, the students negotiated course , Gao Xi-Qing '86, a Chinese Duke Law he found the Japanese behavior seemingly at odds with students in Japan, providing a real life window alumnus, instructs the students during a two-week with the group mentality of Japanese culture. into the differences in the two corporate cultures. focus on securities law and imparts the benefit of his However, he has seen a change in the way the The study of Asian law at Duke is supplemented experience practiCing law in China. Japanese deal with other nations as Japan has by another visiting professor from a local institution. Even after the infamous actions of the Chinese become more of aworld power. Each spring, Jonathan Ocko , professor of history government in Tiananmen Square, Ocko believes Luney believes that Duke is poised and ready for and chair of the China Studies Group at North the thrust in Ch inese law is toward amore indepen the changes which will come as Japan and other Carolina State University, serves as an adjunct pro dent, less politicized judicial system: "I would say Asian nations become more economically powerful : fessor of legal history at Duke. Ocko has been teach that . .. in China, if everybody's connections are "Duke has a unique opportunity to really merge ing at Duke since 1980. He alternates teaching basically equal so nobody can use their connections international legal education with a traditional legal Chinese legal history with contemporary Chinese to greater advantage, and the state has no particular education in this country and to make it work for all law and society. He is currently finishing a book political interest in atrial , that there is rule of law, but of the students because of its small size. I think to about the concept of justice in late imperial China. the likelihood of that actually happening is really do that effectively, to prepare young lawyers, partic "It's been a very positive and rewarding experi slender .. . the sphere in which the law operates truly ularly for the world of the 21 st century, you have to ence for me which would be hard to replicate," Ocko autonomously is growing slowly but surely-it's give them ataste not only of European legal systems said about his relationship with Duke. He likes expanding each year. I think the overall trend is a but also Asian legal systems. You can't help it; you teaching at Duke because it gives him an opportu positive one." [even] run into European companies in Asia." nity to teach his research in Chinese legal history, Julia Shields '90 tarian law, and international environ Students can also learn about civil business transactions and comparative menrallaw. procedure in United States courts in business law. She worked for five years In the area of private international proceedings to which a foreign national at the New York City firm of Cleary, law, Dean Pamela Gann teaches inter is a party in a course taught by former Gottlieb, Steen & Hamilton, specializ national business transactions. The dean, Harry R. Chadwick, Sr. Professor ing in international business transac course covers international private of Law Paul D. Carrington. tions, including the privatization of trade, national and international regu New faculty member Amy Chua large government-owned corporations lation in goods, and foreign direct also teaches in the areas of private inter in Latin America. Chua hopes "to teach investment and transfer of technology. national law, including international students to think more broadly. In my 3 0 D U K E L AW MAGAZ I NE / W I NTER 1 995
spring course on international business moment in the link between markets faculty. He has written many books on transactions, I am introducing students and ethnicity, and hoping to take part varied subjects, including government to legal and regulatory aspects of multi in the many interdisciplinary opportu lawyers, military coups, and the courts national transactions; at the same time, nities at Duke, she hopes to become and social policy. Horowitz also wrote I hope to explore with them the broader involved with the history and political Ethnic Groups in Conflict, a comprehen social and political consequences of science departments. sive study of severely divided societies. those transactions." The "international Donald Horowitz, James B. Duke In 1991, he published A Democratic orientation of the university as a whole" professor of political science as well as South Africa? Constitutional Engineering was a key factor in the decision of Chua law, is an example of the interdiscipli in a Divided Society. He teaches an to come to Duke. Interested at the nary strength of Duke's international interdisciplinary seminar in com para-
Professors Take Advantage of International Opportunities
Two Duke Law professors had the opportunity to share their expertise on an international level this fall. Thomas D. Rowe , Jr., who teaches civil procedure, federal courts, and constitutional law at Duke taught a short course at the Escuela Libre de Derecho (Free Law School) in Mexico City. David l. lange, who spe cializes in new technology and intellectual property law, was asked by the government of Vietnam to advise officials on intellectual property programs.
Surveying American law for Mexican lawyers "Duke Law School has been interested in devel oping relations with Mexico and with Mexican law schools, particularly with NAFTA and other develop ments. So when our administration raised the possi bility of my teaching a short course as an introduction to American law there, I accepted," explains Rowe. ______Tom Rowe, left, with James Ritch '90 and Jacquel ine Touchais '90 in Mexico City. ______0 The two-week survey course at this private law school in Mexico City was designed for 60 to 70 Supreme Court, and the Court held that the kidnapping department at ITAM, the Autonomous Technologl Mexican law school graduates who were taking vari didn't preclude the American criminal courts from hav Institute of Mexico in Mexico City. ous post-graduate courses. "It was quite a lively and ing jurisdiction over the doctor. Needless to say, this Other faculty members may have an opportuni interesting group of students, who were a bit more wasn't a very popular decision with the Mexicans. "I teach in Mexico. "Escuela Libre is very interested mature than your average law student because they taught that case in the context of 'well , we do have an continuing this program ," says Rowe. "We're n were already out of school and in practice. I tried to extradition treaty with Mexico, and it does provide for making arrangements for another faculty member give them asurvey of some key areas of American law, means other than kidnapping to get criminals from one myself to do the same sort of thing next year. " R some basics of American legal structure, of judicial country to another. So, where does this leave the extra says there's also talk of having avisiting Mexican p review in constitutional cases , and of the court struc dition treaty?' I folded this discussion in with some fessor come to Duke to offer our students instrucl' ture," says Rowe. "I also tried to include matters that thing of considerable interest to them, American law in Mexican law. fit with the subjects they were studying and that raised on treaties and other international agreements" (The Rowe sees the benefit in fostering a better un questions of international significance or regarding US and 1Mexico have since negotiated the treaty to standing of each other's legal systems. "It's impo relations between the US and Mexico." ban such kidnappings.) that we talk about legal issues, because as we d One of the cases Rowe discussed was that of a Opportunities for continued interaction between more and more with each other, these issues Mexican doctor who allegedly kept a US Drug Duke Law School and the Mexican legal community become more and more significant. " Enforcement Agency agent alive while he was tortured are expanding. Three Mexican LLM students are cur by Mexican drug traffickers. Rowe says that DEA rentlyat Duke, the most ever from that country, accord AdviSing the Vietnamese on agents apparently arranged for the doctor's kidnapping ing to Rowe, who has spent time with them since his Intellectual Property from Mexico when the US couldn't succeed in extra return . A new exchange program for US and Mexican In November, David Lange traveled to Vietnam,• diting him. "That case went all the way to the US law students is also being developed with the law the invitation of the Vietnamese government to c~ V O LUME 13, N O .1 31
rive public law and policy: ethnic ment in the Law School and the Duke In studying comparative law, the group relationships, in which the class history department and is a recipient of study of other countries' laws and legal appraises approaches to the reduction the Walter D. Love prize of the North histories in contrast to those of the of conflict in deeply divided societies, American Conference on British Stud United States, Duke students benefit primarily in Asia and Africa. (See pro ies for her essay, "Law and Moraliry by studying with permanent faculry file of Professor Horowitz on p. 35.) in Seventeenth-Century England," members who are originally from other International study can also lead teaches law students about the history countries such as South Africa, Ger 10 a greater understanding of US law of English criminal law, the precursor many, and Japan. Thus, students learn and its history. For example, Cynthia to American criminal law. to compare US law with the laws of Herrup, who holds a joint appoint- other countries from individuals who
duct several seminars on intellectual property law. Lange speaks of the importance of recognizing the itself to being deeply involved in international relations iheVietnamese want to be major players in the world merging fields of intellectual property and telecom at every level. For the Law School , law and commerce mcommerce, in which intellectual property plays a munications, and observes that the Vietnamese seem are the obvious connections. As long as we are in the • rontr.>ln,rnonii7innrole, " explains Lange. "In order to do fully aware of this phenomenon. "In the international international arena, it's inevitable that we will be hi, they want to learn more about intellectual property marketplace, you can't meaningfully speak of intellec involved in intellectual property because that field of concepts, particularly as they work in American law, tual property without speaking of telecommunications, law is absolutely at the center of international trade they think that we have a supple intellectual and vice versa. That was part of what I took with me these days " property system which they would do well to emulate." when I went to Vietnam , and it is very much a part of During his visit, Lange found himself drawn to the lange taught training courses for government offi what they see themselves. The Vietnamese regard the Vietnamese people. "I learned to admire them very cials. judges, lawyers and other interested parties in field of intellectual property as part of the larger field of much ," he says. "There was an attractive quality to the HanoI and Saigon. He was recommended to the information technologies-or 'informatics' as they call way they thought and reacted and argued about things. Ylillnarnese government by Tony Salzman 76, a Duke it. Although they wanted instruction in American law, Their own ancient and considerable cultural dimen Law alumnus who lives and works in Hanoi. A gener there is also a sense in which they may even be more sions have been augmented through the years by their oosdonation by Kraft Foods underwrote a substantial sophisticated than we are in terms of the world they see interaction with other countries, so that both intellec IXlrtion 01 the cost of the trip. "[Duke Law alumnus) ahead. They view the future with remarkable clarity, tually and socially they are an especially elegant and ~Ivin Collier '67, vice president and general counsel largely unencumbered by the past. " cosmopol itan people. " Of Kraft Foods, was primarily responsible for this wel Agreeing with Duke's perspective on international Lange is optimistic about Vietnam's future in the COOle gift," acknowledges Lange gratefully. relations , Lange says , "The University has committed international economic arena. "While I was in Hong Kong recently, someone said that Vietnam will be a mini-superpower in the 21 st century, and I would certainly not find that surprising , based on what I observed. In a way," Lange reflects, noting the enor mous amount of reconstruction the country must undertake, even down to their water supply, road and transportation systems, "they see the future all the more clearly because they have no choice." Law School Dean Pamela Gann is enthusiastic about the impact of these types of international oppor tunities for Duke faculty members. "To be able to offer the Law School's resources-by that I mean our expert faculty-to facilitate the development of legal educa tion and legal systems in other countries is an honor and a privilege. In addition , it's very clear that our returning faculty members bring back with them an enriched comparative perspective which they can share with our students." Laura Ertel David Lange, standing , lectures while in Vietnam. 32 DUKE LAW MAGAZINE / WINTER 1995
have approached the comparison from versiry Law School, teaches a class Law and Contemporary ProbLems spon the reverse perspective, enhancing the about Japanese law. In 1989, two years sored a conference about Chinese shift in point of view. of planning and work by Dean Luney law-"Emerging Framework of Civil Professor Herbert Bernstein is a culminated in the "Symposium on Law in China" which was organized, case in point; born in Hamburg, Ger the Japanese Constitution," sponsored overseen, and edited by Ocko. The many, he was for many years a member by Law and Contemporary Problems. symposium was successful due to the of the faculry of the Universiry of Ham According to Luney, who served as spe participation of five prominent Chi burg. He received a JD from the Uni cial editor of the papers delivered at the nese legal scholars, including the man versiry of Michigan and has also taught known as "Mr. Civil Law" in China. at the Universiry of California. He Ocko plans to organize another sym began his Duke career in 1983 as a The Law School's strength posium at Duke about Chinese law in visiting professor, teaching comparative in the international area has the fall of 1995, possibly dealing with law and insurance law. Since 1984, he emerging intellectual properry law has been a regular member of the Duke led to a rewarding visiting in China. faculry, teaching, among other courses, relationship with a number The Law School's reputation in comparative law, comparative insur of individuals prominent in international law has attracted many ance law, and foreign law, which con visiting professors from other countries, tinue to be the primary focus of his various fields of international with some of whom regular ties have research and writing. Professor Baxter, law, and from many countries. been established. Every other year, Pro a native South African, who earned fessor Koichiro Fujikura of the Univer post-graduate legal degrees at both the siry of Tokyo teaches japanese law and Universiry of Natal and Cambridge symposium and published in Law and Professor Guy Haarscher comes to the Universiry and Professor Kingsbury, Contemporary Problems, the symposium United States from the Free University who was raised in New Zealand and brought the name of Duke Law School of Brussels to teach law and philoso received his legal training from Oxford to prominence in Japan, "because we phy. Recently, visiting professors have Universiry, also provide this kind of had all the pre-eminent scholars on come from Alberta, Beijing, Berne, international perspective. constitutional law from Japan at Duke Cape Town, Copenhagen, Dalhousie, and because it's published-there's a Exeter, Gujarat, Hamburg, Jerusalem, Visiting Faculty Enhance copy that sits on reserve in the Inter Kyoto, Monash, Munich, Munster, International Teaching national House of Japan-the name Oxford, Osaka Seoul, Shanghai, Syd The Law School's strength in the of Duke Law School is known at every ney and Tokyo, enriching the Duke international area has led to a reward faculry of law in Japan. So it's given curriculum with specialized course ing visiting relationship with a number Duke Law, I think, tremendous rec offerings in international, comparative, of individuals prominent in various ognition in Japan." This assertion is and geographic law. fields of international law, and from borne out by the fact that each year As the world becomes more global many countries. Duke's adjunct legal Duke receives a growing number of in orientation and international in fla communiry also includes visiting pro applications for its LLM program from vor, so does the curriculum of Duke fessors from other institutions in the Japanese students and lawyers. Law School, aided by a faculry that is Triangle area. (See accompanying Similarly, each spring Professor eagerly embracing internationalizing sidebars.) Jonathan Ocko of North Carolina State their teaching in a variery of ways. Every other year, Percy Luney, Universiry teaches a course on Chinese Julia S. Shields '90 dean of North Carolina Central Uni- law, sociery, and legal history. In 1987, VOLUME 13, NO. I 33
Asia-America Institute Established
uke Law School has estab lished in Hong Kong a hagen and moved in 1991 to the Free Dsummer legal studies insti University of Brussels to be nearer the rute focused on transnational legal and She added that many of the firms center of European Community activ business practice in Asia. The institute expressed an interest in sending young ity, is serving as a model for the Hong follows in the footsteps of the suc lawyers to the Hong Kong program Kong program. In 1994,83 students cessful Duke program in Brussels, for further training. "We expect about from 23 nations, including many from Belgium-the Summer Institute in a third of our students will be from newly democratized countries in East Transnational Law. the United States, mostly from Duke, ern Europe, attended the program in The Asia-America Institute in and the rest primarily from Asia, par Brussels. With an emphasis on Europe Transnational Law, offered jointly ticularly East Asia," she said. "Having rather than Asia, courses offered by the by the Law School and Hong Kong participants from so many different Brussels program include competitive University, will educate young lawyers countries is definitely unique." antitrust, and comparative corporate from around the globe in legal sub Courses, including offerings on law, human rights, environmental law, jects crucial to the ongoing economic transnational securities law, compar and international dispute resolution. expansion in Asia, according to Dean ative intellectual property law, and Both summer programs also provide Pamela Gann. The new institute, international environmental law, will an introduction to American law she said, reflects the increasing inter be taught in English by faculty from course. nationalization of the legal profession, Duke, Hong Kong University and "The programs give our students the need for legal scholars and lawyers other leading Asian and European an opportunity to learn about the uained in international law and busi universities. Tuition for the four-week practice of law and the legal systems ness practices, and the Law School's program, which runs from July 2 to of many different countries in Europe commitment to globalization. "Hong August 1, is $2,700. and East Asia," Horowitz said. "They Kong is the financial and legal hub Gann said the new program also have a chance to study with a of Asia," Gann said. "The faculty at fits well with a long-standing interest wide variety of faculty and students Hong Kong University are excellent in international activities at the Law with different backgrounds and expe and have expertise in the areas of School as well as with the University's riences." Many students returning commercial transactions, banking and focus on globalization. "To be a law from the Brussels program have said finance. This is the best place in Asia school with a national reputation, we that having the opportunity to live for us to be. Our cooperation with a have to be doing international and with people from so many different foreign university at this level is fairly transnational law," Gann said, noting countries was in some ways almost as unique." that 10 percent of the School's student important a part of their education as During a trip to Hong Kong in body is now composed of international the classes they were taking, Horowitz October, Gann and Judy Horowitz, students. "The world is becoming too said. The programs not only benefit associate dean for international studies integrated not to follow this path. As students, but provide Duke Law at the Law School, visited American, economies become intertwined, legal faculty a good opportunity to study, British and Chinese law firms and services also will become more inter lecture and travel abroad, according businesses in Hong Kong and their twined. Law is evolving and nations to Gann. "The Law School is very counterparts in Beijing and Shanghai. are borrowing law from many differ committed to the internationalization During their visits with practitioners, ent sources. It's very interesting ro do of Duke," she said. "It's not a new Gann and Horowitz gained insights comparative legal studies right now." commitment but one that's been on legal practice in the Pacific Rim Horowitz said the Law School's nurtured for a long time." that will be used in developing the summer program in Europe, founded Bill Sasser institute's curriculum, Gann said. in 1986 at the University of Copen- THE DOCKET VOLUME 13. NO.1 35
Donald L. Horowitz Exploring Ethnic Conflicts
zerbaijan, Bosnia, Chechnya. In the past few years an alpha Abet's worth of ethnic conflicts has arisen in communism's wake. The places and the conflicts, new and con fusing ro most onlookers, are familiar territory for Donald L. Horowitz, James B. Duke professor of law and political science. Since the late 1960s, Horowitz has studied ethnic group relations around the world. From Malaysia and Sri Lanka to Romania and the former Soviet Union, Horo witz has systematically researched the causes and solurions of ethnic violence.
Ethnic Study Although many scholars are now studying the interaction of ethnic groups, Horowitz was one of the first
[0 study ethnicity on its own terms. "Old theories explained ethnic conflict as part of a larger process; for example, that modernization brings on ethnic conflicts," he says. "I explained ethnic iry on its own terms. What is it about the friction between groups that makes them dislike each other?" In his 1985 Donald and Judy Horowitz landmark book, Ethnic Groups in Conflict, Horowitz compared cases of societies. He urges electoral systems there is enough time, there is no ethnic conflict in different countries to that encourage groups ro seek the sup urgency. When there is urgency, there fi nd patterns that occur across societies. port of other groups. One scheme is not enough time." The most impor For example, he observed that secession would be to allow voters to list a series tant element in any plan to reduce efforts began in "backward groups in of choices for each race. If their first ethnic conflict is "to provide incentives backward regions that benefit from choice lost, their second or third choice rather than constraints." Instead of subsidies from the center." Although would be counted, until an absolute forcing societies to reduce ethnic con one would expect such groups to wish majority emerged. This would reward flict, cohesion must be in politicians' [0 retain the benefits of associating candidates who appealed across ethnic self interest. with the larger group, "they quickly lines and give minority voters political Horowitz's scholarship has caught learn that they cannot compete at the influence. the attention of world political leaders, cemer for power." They conclude that Horowitz emphasizes the limita who frequently consult him on mat belonging is futile and begin pressing tions of political engineering. "I am ters of ethnic relations. This fall he for secession. very cynical about the ability to make consulted with the Commission on Horowitz is committed to finding people from different groups love each Security and Cooperation in Europe ways ro ameliorate the polarization and other," he says. He also cautions that (CSCE) on the international friction violence rhat can arise in multi-ethnic "timing is a very big problem. When that arises when "kin state" countries 36 DUKE LAW MAGAZ I NE / WINTER 1995
aggressively protect the interests of their Brookings Institution resulted in two grown, all of the children are fluent in nationals in foreign countries. Recent legal books, The Courts and Social at least one foreign language. And Judy cases of concern include ethnic Russians Policy and The Jurocracy: Government Horowitz now takes numerous trips in the Baltic States and Hungarians in Lawyers, Agency Programs, and Judicial of her own as associate dean for inter Romania and the former Yugoslavia. Decisions. (The first of them won a national studies at Duke Law School. prize.) Six years at the Smithsonian In 1980 the family moved to Dur Pursuing Two Careers Simultaneously Institution's Research Institute on ham when Horowitz joined the Duke Although Horowitz has made a Immigration and Ethnic Studies law faculty. He teaches a seminar on career's worth of contributions to the allowed him to do work on ethnicity, ethnic group relations, which is also field of political science, he has pursued including Ethnic Groups in Conflict. open to political science graduate stu law with equal vigor. After earning a Horowitz has seized opportunities dents. He also teaches labor law and B.A. and law degree at Syracuse and for scholarship wherever and whenever criminal law. an LL.M. from Harvard, Horowitz they present themselves. Once during a After a lifetime of practicing in concluded that although he enjoyed two distinct fields, Horowitz's interests law, he also wanted to be a political in law and political science are converg scientist. "Early on I decided I wanted "Comparative law fosters ing in the 1990s. "Ethnic group rela to do both things," he explains. He intellectual empathy, helps tions is the world's major problem," stayed at Harvard to pursue a Ph.D. he states. "Lawyers are going to be in political science. us to understand the involved in a major way." Horowitz Thus began a see-saw career which assumptions of other believes training in comparative law is presents a textbook example for those systems. The more we essential for lawyers working on prob wishing to pursue two careers simulta lems of foreign countries. "How do you neously. He took a federal district court understand about other persuade someone who doesn't think clerkship after finishing field work in systems, the more effective like you?" he asks. "Comparative law ethnic relations. Presumably refreshed fosters intellectual empathy, helps us by a year of reading motions and we'll be as lawyers in to understand the assumptions of other drafting orders and opinions, he then these systems. " systems. The more we understand tackled his dissertation. about other systems, the more effective The day after defending his thesis, we'll be as lawyers in these systems." Horowitz flew to Malaysia for a post trip home from Malaysia, he was stay Horowitz believes a comparative law doctoral fellowship through Harvard's ing with a Sri Lankan family when a background is equally essential for Center for International Affairs. In member of the family mentioned that lawyers doing international trade work. Malaysia, he says, "I learned all there he knew someone who had recently "Lots of our graduates are in firms was to know about ethnic politics." He attempted a political coup. Horowitz overseas. Lawyers who never thought chuckles. "Of course, back then it wasn't ended up interviewing 26 leaders of the they'd go outside the city in which they the hot topic it has since become." coup attempt, laying the foundation practice have ended up on the other After interviewing politicians in for his 1980 book, Coup Theories and side of the globe," he notes. As inter southeast Asia, Horowitz returned to Officers'Motives: Sri Lanka in Compar national transactions become a staple the United States as an appellate attor ative Perspective. It was the first study of of the American law practice, the ney with the US Department ofJustice a coup based on first-hand interviews demand is increasing for an under Civil Division in Washington, DC. with the participants. standing of the legal, political, and Two years, 36 briefs, and 16 oral argu Despite the unpredictable nature economic systems of other countries. ments later, it was back to academia. of foreign travel, Horowitz often man Horowitz spent the 1970s estab aged to bring his wife, Judy, and their Comparative Law at Duke lishing himself as a scholar in both law three children-Marshall, Karen, and Horowitz believes Duke Law and political science. Three years at the Bruce-on his trips abroad. Now School is an excellent source of interna- VOLUME 13 . NO.1 37
tional law opportunities. "We're doing essentially completely parochial," he the police? Why do the police fail?" he a lot and we're doing it well," he pro says. "We ignore the sources of law. says. "I discovered, counter-intuitively, nounces. Duke was the first law school Some of our law is borrowed heavily that ethnic riots often occur in areas to offer a joint ]D/LLM in Interna from other countries, and I don't mean where the target group is in the major rional and Comparative Law that can Great Britain. For example, the con ity. It is a desperate kind of violence." be completed in three years and two cepts of bills and notes is continental. Ethnic riots are not limited to the summers. Duke's study abroad pro We are allergic to this idea that innova Third World. Horowitz points out that grams, in Brussels and now in Hong tion is exogenous rather than endoge in the mid-19th century, ethnic riots Kong, mix American law students with nous. It's exogenous. Borrowing is the in the United States targeted Catholics, foreign students and feature interna main source of innovation." Horowitz Irish, Germans, and immigrants in tional professors for a portion of each points out that every subject can be general. And in the late 19th and early subject. taught with a comparative perspective. 20th centuries, anti-black riots marred Horowitz also extols Duke's LLM "Comparative law is very exciting stufE East St. Louis, Detroit and Chicago. program for foreign lawyers. Although Family law, criminal law, labor law. Horowitz does not consider recent nor unique among American law Why study the National Labor Rela minority-led riots in the United States schools, he points out that Duke's tions Act and not labor law? We're the to be "ethnic riots" because their pur program is more rigorous than most only country to approach labor law pose was not to kill members of an such programs. While many programs the way we do. There are other ways other group. Rather, they were "violent design an entire curriculum for their to approach it." protests"-aimed at expressing dissent. foreign students, Duke mixes those "The black protests in America in the students with its American students. In 1960s were qualitatively different [from addition ro professors' fast-paced Eng "I discovered, counter ethnic riots]," he says. "They were not lish and a presumption of an under intuitively, that ethnic riots out to kill people and, for the most standing of the American legal system, part, they weren't killing people." Horo foreign students must grapple with the often occur in areas where witz does not expect a recurrence of the constant cultural references and slang the target group is in the older form of ethnic riots in the United that characterize American classrooms. States. "But," he admits, "I'd like to Having foreign students in their classes majority. It is a desperate know more about Los Angeles." He gives the American law students the kind of violence. " notes that no statistics have been pub opportunity to make international lished from the 1992 Los Angeles riots connections they otherwise would which break down the attackers and miss. As a result, Horowitz says, "Many New Book on Ethnic Riots victims by ethnicity. JO's are lifelong friends with foreign Horowitz's 1991 book, A Demo Horowitz expects his future legal LLM's, even if they were not into the cratic South Afoca? Comtitutional Engi research to address structural questions inrernationallaw curriculum." neering in a Divided Society, won the of "What is it that animates legal Horowitz believes American law 1992 Ralph Bunche Prize. His latest change? Why does legal change happen schools can learn from the LLM stu project is a book exploring ethnic riots. in one way and not another?" He has dents' approach to law. "These students He defines an ethnic riot as violence just published a long article on Islamic come ro Duke ready to borrow ideas by one ethnic group designed to kill law and legal change in the American to use back home. They take securities members of another group because of JournaL o/Comparative Law. No matter regulation ro see how our system works their ethnicity. He has collected data on what his area of research, Horowitz is so they can try out some of those ideas 150 riots in 50 countries. "I wanted to fascinated by the question 'why?' "I am in their home countries." Horowitz answer questions such as why, in multi interested in the ultimate questions of believes legal instruction would benefit ethnic societies, does A choose to target how and why change comes about," by "borrowing" from other legal sys B and not C, D, and E? What kinds he says. rems. "American legal education is of events precipitate riots? Where is Amy Gillespie '93 38 DUKE LAW MAGAZiNE / WiNTER 1995 ....
Duke law Alumni Practice Around the Globe
Covering the Gamut practicing in Europe. Privatization of pean clients in connection with their Throughout Europe government businesses have created US financing and acquisitions. This unprecedented opportunities for Amer past spring, when the Italian govern t the time of the Moscow ican-trained lawyers in both Eastern ment decided to privatize Banca Com coup, an American reporter and Western Europe. As current and merciale Italiana in a deal through a A asked a young woman from prospective members of the European gloabal offering of shares valued at $1.7 Kazakhstan to comment. Her acknowl Union try to balance national and EU billion, Brandon led his firm's team edgement that she had just learned of interests, they are increasingly looking which provided advice to the under the coup on CNN brought home to to those lawyers for experience in a writers of the offering. In 1993, he American audiences the reality of the dual legal system, epiromized by the assisted Glaxo, the UK-based interna global village. In the past two decades, federal-state split in American law. tional pharmaceuticals group, in estab Duke Law School has become a kind Duke Law graduates can be found lishing a joint venture with Warner of global village, as well. Non-Ameri throughout Europe, in legal, govern Lambert in the United States to market cans now account for 10 to 15 percent ment, and corporate circles. Recently, globally over-the-counter versions of of the student body, a percentage that we talked with a sampling of Duke Glaxo's prescription drug products. Dean Pamela Gann expects to grow. Law alumni, who shared the challenges Every day, Brandon finds himself In a recent speech to the Board of of their current work and reflected on on the phone with lawyers and clients Trustees Academic Affairs Committee, the contributions of their experience throughout Europe and the Far East. Dean Gann proposed that "by the end at Duke to meeting those challenges. Though as an international lawyer, of the decade, this number increase to his geographic reach is far braoder than 20 to 25 percent." D. Rhett Brandon JD '79: it would be from his firm's New York At the same time the Law School American Securities and Corporate base, US lawyers practicing overseas is attracting students from other coun Finance Partner in London face special challenges in dealing with tries, it is also sending American gradu More than 50 their non-US clients. "In many in ates to practice abroad. NAFTA, the American law stances, a lawyer in Europe is looked at European Union, the evolution of firms now have as an implementer of a decision made GATT into the World Trade Organi branches in Lon by others rather than an integral part zation, and the development of Asian don-long a rela of the decision making process. Euro trade blocks are creating an open and tivelyaccessible pean clients and European lawyers are complex economic and legal environ legal market for often surprised to experience the depth ment. More than ever, the skills of talented corporate of involvement which a US lawyer American-trained lawyers are in de lawyers like Rhett often has in a financing or acquisition mand worldwide. In the past five years, Brandon. A native of North Carolina, transaction. " for example, the number of foreign Brandon earned an undergraduate his Brandon's intellectual interests are branches of American law firms has tory degree as well as his JD at Duke. far-ranging. In 1990, for example, he more than doubled. In 1991, the most Of his experience at Duke, Brandon co-authored an article on the US eco recent year for which data are available, said, "the quality of a Duke education nomic response to the Iraqi invasion of the US trade surplus for legal services and the scope of educational opportu Kuwait. And, though London hardly had reached almost $1 billion. At the nities which Duke offers have been poses the physical threats of hot spots same time, the US possesses a mature of great help to me as I have faced the like Kuwait, Brandon has had to deal legal services economy, resulting in challenges of working abroad." with danger. In 1992 and again in declining salaries and downsizing in As a partner in the London 1993, Simpson, Thacher & Bardett's domestic law offices. office of the New York firm Simpson, London offices were badly damaged in The largest proportion of Duke Thacher & Bardett, Brandon special IRA terrorist attacks. Law graduates working abroad izes in US corporate and securities law. American and non-American-are He acts principally on behalf of Euro- VOLUME 13. NO. J 39
Ilona Banhegyi LLM '94: Europe. Currently one of only seven she wanted to practice internationally. International Business Associate lawyers in the firm's Budapest office, And at Duke, she did not limit her and Law lecturer in Hungary Banhegyi works with Western banks focus to Europe. "While I was getting Economists predict that the and corporations who are setting up my law degree, I took Chinese courses greatest growth in European legal prac operations in Hungary. Daily, she faces and regularly spoke Chinese with tice will come in Russia and Eastern the significant challenge of reconciling Chinese students." Those contacts have Europe, where a deficit of economic international business practice with the endured, and this year Wachenfeld regulatory law makes demand for US Hungarian legal code. This is particu Jessen was maid-of-honor for Yibing legal skills intense. "One of the most larly difficult because until recently Mao, LLM '89, who practices law in important issues faced by lawyers in Hungary had no national securities Hong Kong. Eastern Europe is how to handle com commission. Along Witll a demanding Like many Americans seeking law petition, a necessary part of privatiza practice, Banhegyi finds time to teach jobs abroad, Wachenfeld-Jessen sought tion, but one that's hard for formerly corporate and civil law at Eorvas a summer internship with a firm that socialist economies to understand." Lorand University-and to stay in had operations abroad. Unlike most In making this point, Ilona Banhegyi, touch with fellow Duke LLMs-both American students, she found that a native of Hungary, speaks for her socially and professionally. opportunity sooner than expected. nation, but not for herself A top law "Just after I arrived at Coudert Brothers student at Budapest's Eorvas Lorand Margaret Wachenfeld- in New York, one of the partners called Universiry, Banhegyi competed success Jessen JD '89: Handling Corporate me into his office and said-'guess fully for a chance to spend a year at the Transactions in Brussels & Czech what, you're going to Hong Kong for German-speaking Universite St. Gallen Republic a month and a hal£''' in Switzerland. Upon graduation, she Unlike Ilona Banhegyi, who began When asked for her advice to simultaneously worked as an associate her law career with a grounding in the Americans seeking law jobs in Europe, at a Budapest law firm and as a research law of the country where she practices, Wachenfeld-Jessen didn't miss a beat. assistant at her alma mater. In 1991, Margaret Wachenfeld-Jessen has been "Language, language, language-if you she again competed successfully, this learning Eastern European law on have second language skills (particu time for a Fulbright Scholarship to the job. From US law firm White and larly French and German), you have mend Duke. She was artracted to Case's Brussels office, Wachenfeld a tremendous advantage." Despite a Duke, not merely for its reputation, Jessen spends most of her time shuttling hectic schedule combining lawyering but because she wanted to experience between the Czech Republic, Poland, and parenting a toddler, Wachenfeld a part of the United States less well and-most recently-Albania, where Jessen finds opportunities to work on known among Europeans. she is advising the government on her French. That's in part, she said, Banhegyi expected the curriculum privatizing major mining enterprises. because compared to lawyers at major to reflect the differences between a con Though writing contracts and purchase New York and Washington firms, tinemal, code-based system and Amer agreements keeps Wachenfeld-Jessen lawyers in most European firms don't ica's common-law tradition. What was on familiar legal ground, other aspects work as many hours. "Europeans in more surprising was the difference in of her corporate transactional work general have found a much better bal teaching sryle. "I was surprised by the take her into more challenging terri ance between work and the family- informal personalities and teaching tory. Communicating with local coun I respect that very much." approaches of my professors-and how sel, for example, requires an ability to they were so available for students," quickly assimilate the particularities Anders C. Jessen LLM '88: said Banhegyi. This informality carried of legal codes very different from those European Union legal into out-of-class activities and Banhegyi she studied at Duke. Currently, the Commissioner in Brussels regularly found herself playing softball Law School offers several courses in Like his wife, Margaret Wachen and baseball, unlikely pursuits for a civil code and European Community feld-Jessen, whom he met at Duke, cosmopolitan European intellectual. law, options that weren't available to Anders Jessen is also working outside Following graduation, Banhegyi Wachenfeld-Jessen six years ago. his native country, but not as a private promptly passed the New York bar and Wachenfeld-Jessen, who came to lawyer. Jessen, a Dane, is a member of was hired by Shearman and Sterling, Duke with an undergraduate major in the European Community Commis a Manhattan-based firm interested marine biology and a special interest in sion's Legal Service at the EU's head in establishing a presence in Eastern the law of the sea, knew from the start quarters in Brussels. As a lawyer in the 40 DUKE LAW MAGAZINE / WINTER 1995
Legal Service, Jessen has responsibility problems and that means you develop hagen Stock Exchange. Clausen will for reviewing all documents presented mental flexibility. " return to Durham for three months by the Commission within his field of this summer. He expects to do research competence, including draft legislation. Nis Jul Clausen llM '85: on American securities law that will Last year alone, more than 1,200 docu law Professor in Denmark help him as a member of the Danish ments were up for his unit's review. Like his compatriot, Anders Jessen, committee taSked with reforming Another major area for the Legal Nis Jul Clausen believes that study Danish security law, "a reform needed Service is representing the European abroad ptovides an immense advantage because of the growing international Commission in all cases before the to the European lawyer. A professor at ization of the Danish market." European Court ofJustice. Further Denmark's Aarhus School of Business, more, the Legal Service gets involved Clausen strongly advises his studenrs Marie Evrard llM '86: at various stages of infringement proce to study abroad for a semester, advice legal Manager, International dures brought against Member States, taken by more than half of those he Accounting Firm in Brusse ls from determining whether an infringe teaches in the graduate business law Currenrly a legal ment of EU law has occurred, to the program. "European legal practitioners manager at the preparation of letters to errant Member have over the last decade faced an Brussels office States during the administrative stage enormous growth in the need to deal of Coopers and of such ptoceedings, and finally, if with international aspects of law," said Lybrand, Marie necessary, to actual litigation. Clausen, who attributes this interna Evrard found her Until this January, Jessen focused tionalization to "harmonization of the law school exper on telecommunications, arguably the laws within the European Union ... iences at Liege fastest growing industry in the world. and the general globalization of trade University and This winter, he was transferred to the and fmancing." Duke radically different. First of all, it politically-charged arena of State sub The need for a global perspective was very easy to get accepted at Liege, sidies. Any aid a Member State offers is especially critical in Clausen's area "but not so easy to get out." According to businesses within its borders must of specialization, securities regulation. to Evrard, approximately 60 percent be cleared by the Commission and Major, worldwide regulatory changes of Belgian law students fail to obtain such requests sometimes fly in the face have occurred in the way securities are degrees. At Liege, as in most law of the Community's goal of an internal issued and traded. Clausen believes schools in countries with a statutory market with undistorted competition. that the term national stock exchange rather than common law tradition, a "I will find myself having to balance is fast becoming an anachronism. premium is placed on memorization as respect for certain national priorities "Companies raise capital internation teachers generally teach to larger groups with those of the common market," ally and investors are looking for in of students on an ex cathedra basis. At said Jessen, who anticipates particularly vestments globally. This requires that Duke, said Evrard, "memory is used challenging work on airline and agri practitioners as well as academics deal less and instead ptoblem-solving skills culture issues. ing with securities regulation must are stressed." Though her experience at Jessen found his LLM work at work internationally." Duke was positive, Evrard wishes she Duke uniquely helpful preparation for And Clausen practices what he had waited to come until after she had his position at the Commission. "Fifty preaches. Since he graduated from actually practiced law. Having practical years ago, studying national law was Duke, he's regularly renewed links with experience, she believes, would have enough. Now European lawyers must the Law Schoo!. In 1990, he taught in helped her especially in her summer have an equal grounding in Commun Duke's Summer Institute in Transna internship with the DC tax firm, ity law. Being exposed to the state and tional Law in Denmark, and he comes Caplin and Drysdale. federal split within American law was to Durham every two years to conduct Evrard-like many of the other a good introduction to a dual legal sys research. He and Duke Law professor European attorneys interviewed-was tem, such as European nations now Jim Cox have collaborated on a research quick to note the differences between face, " said Jessen. Beyond this specific article examining the monitoring duties both the practice of law and the public benefit, Jessen believes that exposure of company directors under the EU, image of lawyers in America and to a foreign legal system, wherever you and in 1993 they joinrly planned a Europe. work, provides an advantage. "You're conference on international securities For example, "large audit firms introduced to new ways of solving regulation sponsored by the Copen- in Belgium (as well as most European VOLUME 13, NO.1 41
countries) provide legal services ro cli ro him and his experiences. In contrast, that specialize ems (which is quite unusual for the and somewhat to his alarm, he encoun in international US) but, in Belgium, the legal advisors tered a widespread provincialism in transactional work are not admitted to the bar and do not the general public. "Americans see the including mergers, go ro courts (this is different in some world only in terms of America. It's acquisitions, dives other European countries such as simply amazing," said Tulcinsky in a titures and joint France where the members of Coopers 1986 interview, attributing this nar ventures. In addi &Lybrand providing legal services rowness of perspective to an American tion, his practice arelawyers admitted to the bar). She press that largely ignores world politics. includes advising acknowledged that lawyers in America In 1989, Tulcinsky joined Coopers foreign clients on international labor typically work longer hours than those and Lybrand, where he became a part law matters, European Union issues, in Europe. But, she added, more time ner in 1992. Like a senior tax partner and litigation in Belgium. On rop of at the office does not necessarily mean in a US firm, Tulcinsky has multiple this, he is the partner in charge of more stress and rigor. "In the US, firms responsibilities ranging from consul administration in the Brussels office. allow their lawyers to go jogging, often tancy and compliance work with large Since Van der Mersch's clients are have a fitness room in the basement, corporations, to public relations and multinational companies, he must con and provide better secretarial support." marketing, as well as coaching and sider the international implications of Evrard confirmed that European law motivating, and managing a Staff of all the legal issues he addresses. "This yers are much less likely to litigate, associates. In addition, he lectures on means when a client comes to me with preferring other means of conflict reso international tax law in the Special Tax a Belgian legal issue, I not only give lucion. Related to this is the belief that Program of the Solvay Business School advice on how that issue may be solved lawyers should not advertise and, she of the Free University. in Belgium, but also consider what explained, most European bars have Tulcinsky-by nature modest- other effects that issue could have on strict bans against lawyers publicizing is hesitant to claim for himself a global the company's operations in other their services. perspective if global is defined as countries or with respect to European worldwide. But he does lay claim ro a Union law," said Van der Mersch. Paul Tulcinsky llM '86: breadth of vision that enables "one not Though McGuire, Woods has Tax Partner, International only to identify advantages for oneself offices in Zurich as well, it is the Brus Accounting Firm in Brussels or for the firm but also for the Belgian sels office that has taken the largest Dean Gann has economy in general." From his vantage share of responsibility for the firm's spoken of her point at the heart of the European legal work in Russian and Kazakhstan. interest in devel Union, Tulcinsky acknowledges a num Van der Mersch represents the govern oping a global ber of challenges-ranging from the ment of Kazakhstan in its negotiations network of need ro understand foreign legislation with oil companies located allover Duke faculty and legal cultures ro increased competi the world. and alumni. Paul tion between legal service providers as Like others used to the more Tulcinsky and firms extend their spheres of operation. theoretical pedagogy of European law Marie Evrard schools, Van der Mersch appreciated provide practical evidence of how such Xavier Van der Mersch llM '84: the applied nature of his LLM course a network might operate. A classmate Corporate and Administrative Partner work. "The Duke program emphasized of Evrard's at Duke, Tulcinsky recruited for American Firm in Brussels addressing issues from a practical stand her to Coopers and Lybrand, where he Xavier Van der Mersch is one of a point," said Van der Mersch. "This IS a tax partner. growing number of Europeans working concept has provided me with a solid When Tulcinsky came to Duke, he for American firms with foreign opera basis for my legal work." Van der already had two degrees from the Free tions. Van der Mersch's firm, McGuire, Mersch also appreciated the interna University of Brussels-one in law and Woods, Battle and Boothe, is one of 27 tional microcosm created by an LLM another in taxation and was employed American firms with offices in Brussels. program with students from all over by a large-by European standards Just five years ago, only seven American the world. "The interchange among firm of 57 lawyers. T ulcinsky found firms were doing business out of Brus students with diverse background and the Duke environment very welcoming sels. Van der Mersch, a corporate part various perspectives brought to the and his fellow students quite receptive ner, directs a team of Belgian lawyers discussions proved useful in preparing 42 DUKE LAW MAGAZINE / WINTER 1 995
me to understand and evaluate issues professors, because "in Switzerland, cases a year. Cartier forms part of the globally." the professor is a rather distant person." Vendome Luxury group, which com Though proficient in English, he prises some of the world's best know Dieter Fullemann LLM '83: valued the opportunity to learn legal luxury brands including Dunhill, Secretary, Supreme Court of English-a linguistic challenge even for Montblanc, Piaget, Sulka, Baume & Switzerland American students. Mercier, Chloe and Karl Lagerfeld. Th( Dieter Fuliemann, who is secre counterfeiting ofluxury goods is big tary-or legal administrator-in the Bharat Dube JD '86: business, and the focus of Dube's prac· Swiss Supreme Court, is not quick to Associate Counsel for Intellectual tice is in the area of anti-counterfeiting jump on the global bandwagon. With a Property, Cartier International According to GATT estimates, last yea: note of humor, he remarked, "the only in Geneva counterfeiters accounted for a loss of global perspective I possess is a perspec While most consider Eastern legitimate business approaching one tive of the Lake of Geneva, which is Europe and Russia to be the most hundred billion US dollars. global (in size) when viewed from my fertile ground for American-trained As manufacturing in Asia has office window." In a more serious vein, lawyers seeking in-house practice in burgeoned, so has counterfeiting and he elaborated. "There really is no such Europe, entrepreneurial Duke JDs like Dube has recently spent considerable thing as a correct global perspective. Bharat Dube do find interesting posi time in China. Unlike Western coun Physical realities are lots more com tions with Western European corpora tries, China does not have well-devel plex." Fullemann believes that to be tions. Dube's resume epitomizes the oped intellectual property protections. effective, lawyers must think concretely new global lawyer. A native of Cal Dube cites a recent case in which a and specifically, rather than abstractly cutta, Dube earned a national schol major US software manufacturer lost and universally. arship to attend a high school in hundreds of thousands of dollars to Fuliemann, who is in the Court's Wales that attracted students from 60 unauthorized copies of its software and Second Civil Section, deals mainly nations. From there he was recruited was awarded a paltry $200 in damages with bankruptcy and family law cases. by Harvard, where he majored in social by a Beijing court. In his most recent Recent economic downturns in Switzer studies. Dube was attracted to Duke Chinese counterfeiting case, Dube land have hit the construction industry because he believed an American law fared considerably better. He wisely particularly hard. And-as in the degree would be a strong asset in India, chose to have the case tried in Shenzen. United States-marriage in Switzerland where he expected to practice. a town neighboring Hong Kong with a is becoming a more fragile institution. Having interned at the United reputation for progressive judges. "I Unlike the US Supreme Court, Swit Nations, upon graduating in 1986 was as surprised by the quickness of the zerland's highest court often deals with Dube was hired to work at the World case-a mere three months-as I was international arbitration cases since Intellectual Property Organization, a with the award in excess of $50,000," many courts of international arbitration UN agency. During his four-year stint said Dube. have their seat in Switzerland. In con there, Dube travelled widely, particu Dube has not given up the idea of trast to his colleagues in other European larly in Asia and the Pacific. Though he settling in India-and returns once or countries, Fullemann encounters rela enjoyed interacting with high govern rwice a year to see his family in Delhi, tively few American lawyers-Geneva ment officials, and learning firsthand a trip that brings him in contact with and Zurich together have only seven about international trade, Dube missed economic realities he doesn't experience American law firms. Not yet a member actual legal practice. "I was a quasi at Switzerland. He has great respect for of the European Union, Switzerland is bureaucrat and wanted something in his brother, a journalist who worked a[ just beginning to see the proliferation the field-practicing law, not just deal the World Bank in Washington, who of laws and legal service providers ing with policy," said Dube. In 1990, has recently returned to India to write characteristic of EU member states. he got this opportunity when he was a book on poverty. Unlike most LLM candidates from offered a position with Swiss-based Europe who come to Duke having Cartier as an associate in-house counsel Joaquin Carbonell JD '77: studied law only at the undergraduate for intellectual property. President, BeliSouth Europe: level, Fullemann brought with him a Though Switzerland is the home Just as many JDs in the US use doctorate in law and considerable legal of international arbitration, Dube is their legal skills as managers rather than experience. While at Duke, he particu heavily involved in litigation; Cartier, lawyers, a number of Duke Law grads larly enjoyed the close contact with he estimates, may be involved in 2,000 abroad are pursuing careers in business. VOLUME 13, NO . 43
Lke Bharat Dube, Joaquin Carbonell national corporate law. After Duke, awareness are the twO most essential has been on the move his entire life, a Carbonell was hired as a lobbyist by skills for the global manager. It is cru mobility that may have bred the adapt BellSouth. In 1992, he was named cial, he told a reporter from Business ability crucial for a global manager. president of BellSouth, Latin America Week in an October 1994 interview, Born in Cuba, at age nine Carbonell and last year became president of "to be able to adapt one's business style was sent by his parents to the United BellSouth, Europe. Among Carbonell's to the cultural environment ... from Stares where he landed in an orphan recent coups was winning a $300 Latin America's low-key working to the age. After a brief stay, he found a more million bid to provide cellular service in-your-face negotiation that's needed permanent home with a foster family in Israel. Carbonell has just met a bid in Israel." Carbonell's advice to those in Lacrosse, Wisconsin. ding deadline in the Netherlands and seeking a career in international busi After triple-majoring at Boston is in the process of leading BellSouth's ness? "Cultivate a mentor or peer who College and graduating summa cum efforts to expand into eastern Europe. will keep you tuned into doings at IP.ude, Carbonell entered Duke Law For Carbonell-bilingual since headquarters." School determined to pursue inter- childhood-language and cultural Enjoying Exciting Careers in Asia
n irs latest survey of the global strengthen during the coming years. fessor Percy Luney, also dean of North economy, The Economist made According to Gann, fast growing mar Carolina Central University Law Ia srriking prediction. By the year ket areas like Asia typically suffer from School, has spent repeated teaching 2020, Asia will account for seven of roo little law; they lack modern eco and research leaves at Japanese universi the world's 10 largest economies. Japan, nomic regulatory law, adequate intel ties, enriching the course he regularly China, and India will maintain their lectual property protection, and legal offers at Duke in Japanese law. In the current top-10 positions, while South education capable of keeping pace with past decade, more than 30 Japanese Korea, Indonesia, Thailand and Taiwan the need for a critical number of highly students have earned law degrees at 1\111 displace traditional European skilled lawyers. "Together, these factors Duke. Together, this interchange has ~antS, including Italy and Britain. indicate that the Law School ought to created a rich environment for prepar Japan excluded, Asia is expected to react by speeding up globalization," said ing lawyers-American and non grow at seven to eight percent per year Gann. And Asia is a centerpiece of the American-for legal careers in Japan. and to require $1 trillion in new capital proposed internationaliza- investments in the next five years alone. tion of the Law School. Such a vibrant economic market is also As Duke Law School shifts its Paul B. Ford, Jr. JD '68: a vibrant, but challenging, legal one. attention east, the experience of alumni "we are not just The legal practitioner in Asia faces a currently practicing in Asia becomes a exporting existing dynamic and complex environment vital asset. Increasingly, as Dean Gann financial products in which markets are transforming, and Associate Dean for International to Asia; rather, regional trade agreements are being Studies Judy Horowitz chart the course these markets are forged, and political institutions are of Law School internationalization, breeding grounds evolving to provide stability and they are relying on the experience of for new products. " prorect rights. alumni like those profiled here. Dean Gann sees Asia as a vital The Law School has enjoyed Whether it was sphere for Duke Law School operations important ties with Japan for more the reassuring credibility of Walter in the coming decade. ''The US econ than a decade. Faculty visits to and Cronkite or a stimulating international omy is very mature, with steady but from Japanese universities have been affairs class in high school, Paul Ford unspectacular growth, and it possesses frequent for a number of years. For is not sure. But, whatever the stimulus amarure legal services economy," stated example, since 1985, Professor Koi towards the international arena, it has Gann, noting a decline in the oppor chiro Fujikura of the University of been a dominant and persistent theme tunities and relative incomes facing Tokyo, has been a biannual visitor in Ford's life. US-based lawyers. The draw of practic at Duke teaching courses in Japanese When Ford was at Duke in the ing abroad, especially in Asia, will only public law. Conversely, adjunct pro- late '60s, although virtually none of his 44 DUKE LAW MAGAZINE / WINTER 1995
classes had an expressly global focus, he and legal "technology" in the United some of his positive impressions chal was exposed to the incisive legal reason States. "Faced with adapting to the lenge popular notions. While Ameri ing and larger vision that have served civil law traditions of Asian countries cans look with envy on the conscien him well in his international practice. where tax and bankruptcy interests are tiousness and discipline ofjapanese Ford particularly recalls the influence different from ours, we will have to parents, Sakai is equally quick to praise of Professor Arthur Larson, whose modify and create new [legal and finan American child-rearing. "In Japan, work in the Eisenhower administra60n cial] technologies." In his humbler we always say how bright and cute gave him a global perspective unusual moments, Ford suggests that, far from the other person's child is; in American among American law faculty at the being essential to the development of parents say good things about their own tIme. Asian markets, "we face the challenge children. I think this helps encourage When Ford joined Simpson, of remaining relevant in markets like self-confidence, which leads to self Thacher and Bartlett in 1968, virtually China that are large enough in their respect." none of the major New York firms had own right" to be viable without As a corporate lawyer, Sakai spend a presence in Asia. Even now that depending on the US. much of his time on bankruptcy cases, leading US firms have offices in Hong For many international lawyers, many of which involve multinationals. Kong, Tokyo and are considering an interest in global affairs remains In late 1993, he handled a case for a beginning operations in Singapore and restricted to their paid work. Not so real estate company with holdings in Korea, Ford believes that US firms have Paul Ford, whose pro bono activities the US and Japan that had to be shep yet to fully understand and embrace center around international affairs. herded through the courts of both the global arena. "When law firms have Ford is chairman of the Foreign Policy nations. In his practice, Sakai assists a preeminent reputation in the states, Association (FPA), a national organiza foreign clients who are just coming there's always the question of why we tion dedicated to educating the general into the Japanese market, as well as need to do this," said Ford of the deci public about foreign and global issues. Japanese companies just beginning to sion to globalize. But, believes Ford, if The FPA sponsors discussion groups, do business in the West. firms are to retain their standings as top seminars and public forums in which Sakai's career typifies that of the quality franchises, they must be willing participants meet, debate and form increasingly entrepreneurial Japanese to locate near their clients, who considered opinions on key policy top lawyer who has studied in the US. increasingly-are in Asia. ics. Last year's forums focused on issues Following his studies at Duke, Sakai When he became a partner in ranging from forging a democratic joined Blakemore and Mitsuki, a 1976, Ford began a concerted effort to union in South Africa to US trade with corporate firm started by a far-sighted build up the firm's international prac the Pacific Rim. American who came to Tokyo as part tice. In 1984, for instance, he coordi of the rebuilding initiative following nated two international conferences World War II. Well-established with on investment in the People's Republic Hideyuki Sakai LLM '82: Japanese and international clients, Sakal of China. In 1990, Ford received the '1 was Duke's first has just established his own practice. go-ahead to open an office in Tokyo. Japanese law The first Duke Law School gradu That office is now under the direct graduate. " ate in Japan, Sakai was a natural choice management of a young American to head the Japanese Duke Law Alurnn lawyer, whom Ford notes is fluent in Hideyuki Sakai Club. This year, at the annual send-off Japanese. Proficiency in Japanese, said came to Duke party for students heading for Duke, Ford, is increasingly viewed as indis having worked the club hosted more than 25, evideno pensable to the lawyer practicing in for three and a of the emerging network of Japan Japan, because even in Tokyo, clients half years at a based Duke Law grads. orren do not speak English well enough Tokyo law firm started by an Ameri to converse about complex legal and can. "It really was premature for me to Hirofumo Golo LLM '84: financial matters. study law in the US-I had engaged in '1n Japan, any person can join a It is widely accepted that American purely domestic Japanese law and had company's legal staffif that company law firms are changing the way Asian little idea of the American system," said believes he or she is qualified. " corporations do business. But, believes Sakai. At Duke, he confided, "I learned Ford, doing business in Asia is also in a little bit about American law and a An in-house lawyer for Japanese fluencing the development of financial lot about the American people." And based Sumitomo Metal Mining Co., VOLUME 13, NO. 45
Hirofumo Goto handles a wide range suggested Goto, sometimes have a largest outdoor statue of Buddha. oflega! maners. He reviews and drafts keener and a pragmatic understanding Finally, Hong Kong is a political hub contracts including joint venture, licen of the business transactions that are where issues of human rights will sing and distributorship agreements. at the heart of most legal controversy. increasingly be tested as July 1, 1997 He manages trademark registration Recognizing the value of this practical approaches and the influence of China and makes due diligence investigations expertise, universities have recently increases. Collectively, these factors related to acquiring shares of other begun to invite members of corporate make Hong Kong a fascinating legal companies or building plants in foreign legal staffs to join their law faculties, market, one that has become a magnet counuies. He also manages dealings modi tying an institution that once for American law firms. with consulting attorneys, domestically favored theory over practice. Rich Allen never aspired to be and internationally, as well as devising Goto believes that US law has had come an "international lawyer," and and overseeing the company's overall a significant impact on Japanese law, claims that "there is nothing glamorous litigation plan. including-but not limited to-anti about practicing abroad." A partner In these many roles, Goto regu trust, commercial code, securities regu specializing in business and corporate larly encounters differences in the way lation, and unfair trading practice. law at Cravath, Swaine and Moore, Americans and Japanese conduct busi Stiff court expenses are used to deter Allen has a strong interest in conser ness. "Japanese and American customs suits against company directors, but a vation issues in his own backyard. A related to business are very different," new law has just lowered those costs, founder of the Environmental Plan said Goto. "As is widely acknowledged, opening the way to shareholder suits. ning Lobby, Allen has devoted much contracts with US companies are long Similarly, a law facilitating product pro bono attention to promoting envi and detailed, in contrast to contracts liability cases has just passed the Diet. ronmental protection in New York. between Japanese companies which This should prompt companies to Allen claims that when in 1994 are much simpler and shorter." Goto establish more stringent and elaborate Cravath was looking for someone to attributes this to the difference berween safety rules and manuals. open a branch office in Hong Kong, he civil and common law systems, as well was chosen not for his Asian expertise, as to a Japanese preference for resolving but primarily "because of my family conflict through consultation rather Richard M. Allen llB '66: situation; it was easier for me than for than litigation. However, he has found '54t Cravath, we many of my partners to relocate to Asia himself increasingly engaged in legal view the assign for three years." For Cravath associates, consulting, contract drafting and the menttoHong according to Allen, practice abroad is modification of in-house rules in re Kong just like any not considered any different from any sponse to changing legal circumstances. other assignment. " other reassignment, say from a banking In Japan, explained Goto, there to a securities group. Unlike many of is a marked difference berween the Hong Kong, with its rival firms, Cravath does business uaining of litigators and other legal its six million peo out of a single office in Asia, making practitioners. Most aspiring legal pro ple, 98 percent of the scope of the Hong Kong branch's fessionals study law as undergraduates, whom are ethnic Chinese, enjoys the operations vast, particularly given a but upon graduation the great majority world's 10th largest trading economy staff of only rwo partners and seven go to work directly for private corpo and a gross domestic product per associates. rations or the government rather capita that is larger than her soon-to Allen finds his foreign surround than preparing for the examinations be ex-mistress, England. According to ings "much like a large, western city," required to litigate or enter the judi Asian experts, Hong Kong also has a but with a very different and very chal ciary. With a pass rate of only rwo per more developed infrastructure, better lenging business environment. "Asian cent and the need to commit years to social services and a more educated economies are incredibly volatile preparation, studying for certification populace than Britain. As a vital junc activity can skyrocket and then sud as an attorney is not a viable option ture berween East and West, Hong denly disappear." He likens the differ for most. Large Japanese corporations Kong is a financial hub through which ence in business transactions in Hong typically draw chiefly on the talents of inbound and outbound investments Kong and New York to the "differences in-house counsel, bringing in outside flow into and out of China. It is also berween the life experiences of a teen attorneys much less frequently than a cultural hub, where Ivy League and ager and an older person-the teenager do American corporations. The former, Oxford graduates worship at the world's has constant ups and downs and flits 46 DUKE LAW MAGAZINE / WINTER 1995
from one direction to another, while the of Tokyo. At Duke, Asaka conducted In 1993, Tiryakian was sent to the older person maintains a better focus background research for former dean UBS 500-person office in Hong Kong, and has a better grasp of priorities." Paul Carrington, who was reporter for as assistant to the branch manager. In Though not taken with the the Federal Civil Rules Advisory Com this position, he serves as inside counsel glanlour of practicing abroad, Allen mittee, that resulted in suggested fed and compliance officer, with responsi does believe practicing law abroad is eral rules revisions that eventually made bility for reviewing contracts, leases anI a broadening-but also humbling their way to the US Supreme Court. other legal documents. He also is the experience. "In the US, all of us In 1993, Asaka returned to the liaison when outside counsel is used. particularly lawyers-see ourselves as United States as a visiting scholar at Within a day, a single transaction may dominating the world. In Asia, lawyers Boalt Hall Law School in Berkeley. put him on the phone ro colleagues are thought to be nothing more than There, he researched the history of fed in Switzerland, Beijing, and New York necessary evils." eral courts. "Federalism is essential for When asked about the challenges of Allen has been helpful to Deans Japanese to understand if they are to practicing law in Asia, Tiryakian imme Gann and Horowitz in setting up the grasp American law," said Asaka. For diately notes the language barrier. He Asia-American Institute in Transna example, explained Asaka, Japanese law finds it difficult to get English language tional Law slated to begin this summer students were surprised to learn that legal periodicals quickly enough and in Hong Kong. At the Institute, Allen Rodney King's double trial did not wishes that he were more skilled in will be offering a seminar in project constitute double jeopardy. Mandarin. Still, he notes, English func· finance. He also hosted a Hong Kong Asaka believes that Japanese legal tions as the lingua .franca of commerce al'lmni gathering for the deans. education must expand its focus to in Asia. "When a Thai and a Malasian keep pace with the global economy. get together, they speak in English." Kichimoto Asaka LLM '87: The fact that very few Japanese practice Like other Americans practicing outside Japan has served as a damper abroad, Tiryakian notes interesting '7n Japan, teaching and practicing on the development of international differences between the image of law law are quite diJJerent pursuits. " legal studies. But as more Japanese legal yers in and outside the US. He appre The majority of professors in scholars follow Asaka's example and ciates that the British colonial vestiges American law schools come to teaching study abroad, pressure to international remaining in Hong Kong lend to his having practiced law. In contrast, Japa ize legal education will mount. profession a certain nobility. This deco nese law faculties contain theoreticians rum is enhanced by the requirement rather than practitioners. But increas Edmund Tiryakian JD/MBA '81: that lawyers in tribunals wear wigs. BUI ingly, theoreticians like Kichimoto Tiryakian daily sees signs that Hong "Where a law degree is common Asaka are seizing opportunities to Kong is losing its identity as a western currency in the Us, Asia remains a study abroad where they are exposed preserve. wide-open market, where an American to practice-oriented teaching methods. Hong Kong's reversion to China JD or LLM is still very much sought Asaka is among a new breed of Japa in 1997 seems a lot closer to Tiryakian aJOer.,/+ " nese legal academics who are challeng than to most Western observers. "It's ing the formalistic pedagogy that has Edmund Tiryakian found that actually less than 1,000 days and we're long been the norm in Japanese legal the combination of law and business already seeing signs of the transition. education. Using cas ~ studies and the degrees from Duke put him in a strong Newspapers are becoming more circum· Socratic method, Asaka encourages position to be hired by an international spect. More and more often Beijing is student participation. bank. "An MBA gives you the ability to making pronouncements and dictating Unlike Hideyuki Sakai and Hiro talk to the product guys in house and policy," said Tiryakian, who sees Hong fumo Goro whose knowledge of the legal training helps in talking to outside Kong's future in vibrant, but turbulent US legal system was minimal before counsel," said Tiryakian. From Duke, terms. For the foreseeable future, believes they came to Duke, Asaka arrived in Tiryakian was hired by the United Tiryakian, Western banks have a niche Durham with a strong foundation in Bank of Switzerland (UBS) and sent to fUl in Asia as exporters of capital. Anglo-American law. Prior to pursuing to its London office. In addition to his But Tiryakian also sees signs of instabil· an American LLM, Asaka completed joint degree, Tiryakian offered strong ity amid the dynamism. "Well-heeled an LLM in American civil procedure language skills in French and German, Hong Kong residents are scrambling and worked as a teaching assistant in a decided advantage in European to get second passports and many are the Faculty of Law at the University banking. investing in real estate abroad," he said. V O LUME 1 3. NO . 47
Although Tiryakian notes ruefully Dechert in general practice, where he as the parent of AT&T companies in that he has been out of the US both had his first exposure, and later many China and centrally manage and coor rimes Duke won the NCAA basketball more, to China related legal matters. dinate AT &T's China business opera championship, he claims not to feel cut From Dechert, Xuan joined, as tions, including several hundred million off from Duke in Hong Kong. "I've its associate corporate counsel, New US dollars in yearly sales. Xuan was been surprised at the number of Duke Jersey-based Inductotherm Industries, recently elected to serve a four-year Law grads-from multiple ethnic and the world's largest manufacturer of term on the Board of Directors of the national backgrounds-working at top induction melting equipment. At holding company. He is also secretary firms here. " Tiryakian expects to see 25 Inductotherm, Xuan experienced first of AT&T China. To accommodate Duke graduates when he attends an hand some of the difficulties of doing AT&T China's increasing need for upcoming Duke Alumni Association business with China. An attempt to legal services, Xuan will soon add a meeting. establish a joint venture ran aground new lawyer to his staff. when the Chinese company refused to Most challenging for Xuan is the commit to keeping proprietary manu lack of clear law and legal precedent Xuan Van JD '87: facturing intelligence confidential. A governing business transactions. "You "The biggest chal subsequent attempt to get around the often don't have anything solid to go lenge a corporate intellectual property snafu through a by," he said. "The advice you give is lawyer in China wholly owned subsidiary also failed. almost always 'maybe or maybe not.' faces is the lack According to Xuan, Inductotherm's Even in areas where there are laws and ofclear laws and application to establish a wholly owned regulations they are so inconsistently rules that can subsidiary was turned down because it interpreted and applied, you can't be used to gov wasn't "grand enough to make the offi advise clients as you do in the US. You ern commercial cials look good on TV-we just weren't have to rely on intuition and experi transactions. " willing to spend millions of dollars up ence and proceed cautiously." front." Finally, Inductotherm decided As AT&T's only lawyer stationed to support its booming equipment in China, Xuan Yan is hard to catch, sales to China through a representative Amy Wen-yueh Chin LLM '91: since during an average work week he office in Shanghai. '54 rapidly shifting docks 12-16 hours a day, six and some In 1991 , Xuan became division economic climate urnes seven days a week and travels counsel of Crompton and Knowles, means a heavy several thousand miles. a Pennsylvania-based manufacturer workload-Pm Xuan attended Duke on a Richard of dyestuffs. Just as he was about to always having to Nixon Scholarship, a part of a visionary be transferred to Charlotte where he quickly read books collaboration with the People's Repub would be nearer to major textile manu and articles to lic to educate legal leaders developed by facturing, the company's customer catch up on all Paul Carrington during his deanship. base, Xuan began receiving recruitment the new financial -\s an undergraduate English major, calls. As an American-trained lawyer, products and regulations. " Xuan came to Duke with a language he was in demand by companies advantage but, unlike most non-Ameri rapidly expanding operations in Asia. Taiwan has long been regarded cans at the Law School, absolutely no Though he hated to forgo a return to by the international financial services prior legal study. Like most Duke Law North Carolina, the opportunity to community as an attractive market. grads, Xuan most values not any par become regional counsel for ATT in But now, its relative political stability, [icular training in international law, China and to help ATT conquer the and geographical as well as cultural bur the rigor of being forced "to think largest telecommunications market in proximity to China, make it an espe asa lawyer." the world proved irresistible. ATT cially appealing center for financial In the summer of 1985, Xuan was China now employs more than 1,000 and legal--expertise. Some Asia-experts hired by the Philadelphia firm, Dechert, people. Xuan has legal responsibilities even predict that Taiwan will surpass Price and Rhoads, where he worked as for AT&T's nine representative offices Hong Kong to become the service aresearch assistant for Paul H. Haagen, in China and eight joint ventures. He center for the Far East. More than ever, who joined the Duke Law School fac just helped AT&T receive approval Taiwan-based law firms are seeking ulty the following fall. After gradua- from the Chinese government to estab practitioners with western legal train [ion, Xuan spent another two years at lish a holding company which will act ing. Increasingly, American law degrees 48 DUKE LAW MAGAZINE / WINTER 1995
are common currency among associates was already well into her legal career. In was chosen one of Taiwan's "Ten Out· and partners in Taiwan's larger firms, Taiwan if a person wants to be a public standing Young Women," an award like Tsar and Tsai where Amy Wen prosecutor or judge he/she must have presented in a national ceremony by yueh Chin is an associate in the secur qualifications beyond a law degree, President Lee Teng-hui. ities practice group. including success on a competitive Currently, Lin sits on a Court of Chin knew from her research entrance examination, and 18 months Appeals, which functions somewhat into American law schools that Duke of intensive training followed by a differently from its US counterpart. ranked highly. But when a friend who second written exam. In addition to For example, not only is a dissenting preceded her in the LLM program overcoming these hurdles, Lin had judge prohibited from writing a dis provided a personal endorsement, Chin practiced five years as a public prose senting opinion, he or she must write decided definitely on Duke. A graduate cutor and three years as a district court the opinion for the majority, a practice of Soochow University Law School, judge. Against this backdrop, the pros Lin sees as less than optimal. Lin has Chin came to Duke knowing she pect of law school appeared positively also taught courses in criminal pro wanted to focus on banking regulation relaxing. As she said, "It was good time cedure at Taiwan's Central Police and securities law. She found course for me to study abroad and take a rest." Academy. work in securities regulations with She applied to and was accepted by Lin has observed a number of Professor James Cox particularly valu several top US law schools, including ways in which the US is influencing able. Chin especially appreciated the Duke. Lin attributes her decision to the Taiwanese legal system. Wildlife opportunity for group study, including attend Duke to Associate Dean for and intellectual property protections, the communal production of memos. International Studies Judy Horowitz. for example, have become much more Chin's practice is truly interna "She called me personally and after stringent in response to western pres tional. She works chiefly on overseas talking with her briefly I realized she sure. Lin has also seen the lighter and convertible bond and equity issues, knew almost everything about me. I darker sides of an expanding global dealing with international securities figured if she was so efficient, then the economy from her position on the firms regularly. Domestically, she School must be an effective schoo!." bench. "We are seeing more and frequently handles public listing of After completing her LLM, Lin more foreigners in our courts and companies and offerings of securities. joined her husband in Boston, where the amounts of money at stake are Recently, she was selected by her firm he was working on a degree at MIT becoming enormous. International for the China Practice Group and is and she was a visiting scholar at Har drug and gun smuggling cases are also reading up on Chinese law in prepara vard. ''After two years there, I started on the rise." tion to go to Shanghai. Chin believes thinking," said Lin. "If I went home Dean Gann estimates that she her LLM experience has been valuable then, I wouldn't have accomplished spends close to 25 percent of her time beyond the professional skills and cre anything. I should study for an ad travelling outside the United States. dentials she acquired while at Duke. vanced degree." In 1987, Lin returned During 1995, much of this time will She has kept in touch personally with to Duke, where she worked on her SJD be spent in Asia, seeking to develop Duke alumni worldwide and considers in criminal procedure with Professor cooperative relationships with institu these "friends for life" the most won Sara Beale, focusing her dissertation tions across the continent. But Dean derful experience at Duke. on search and seizure. Gann will also be making personal Returning to Taiwan-with two visits to the growing number of Duke Jiin-Fang lin LLM '84/SJD '89: Duke degrees and an infant son born Law alumni working in Asia. Together at Durham Regional Hospital-Lin with their counterparts in the Americas "In terms 0/protecting civil resumed her job as a district court and Europe, these alumni are part of rights, I see a lot o/similarity among judge, a particularly weighty responsi an important network of "global elites.' countries. we share a common interest bility given the lack of juries in Taiwan. And the expertise and goodwill con in attaining equal rights for every Lin found death penalty cases partic tained in this network, believes Gann, person. " ularly difficult, but at least on these, will be vital to the success of the Law At the time Jiin-Fang Lin was she was able to seek the assistance of School's accelerating global initiative. considering American law schools, she two additional judges. In 1990, Lin Lucy Haagen VOLUME 13 , NO.1 49
Programs Encourage International Exchange
The annual fulbright Recipients competition Arou nd the World for these highly desirable and "The experience ofliving and study prestigious schol ingin another country transformed the arships draws way I looked at the world and influenced thousands of Illy whole life. " applicants- - ]. William Fulbright, less than one program founder fifth ultimately receive Grant awards. The "The best way to appreciate others' Institute of !Jiewpoints, their belief, the way they International think. and the way' they do things, is to Education (lIE) irlteract with them directly on an indi coordinates the Ilidual basis-work with them, live with activities relevant them, teach with them, learn with them, to the US grad Michael Samway '96 JD/LLM candidate (standing, third from right) in Santiago, Chile, and learn from them. " uate student surrounded by youths at a vocational training center. - Fulbright Grant Brochure program and conducts the annual competition for In addition to providing opportu he Fulbright Program scholar the scholarships, most of which are for nities for American students to study ship fund was created by the one academic year of study or research. and do research abroad, Fulbrights TUS Congress in 1946, imme The Fulbright Program is funded also provide foreign students with an diately after World War II, to foster by an annual Congressional appropria opportunity to experience American mutual understanding among nations tion and contributions from other par culture and education first-hand. through educational and cultural ticipating countries. Under the policy Duke Law School has a long his exchanges. Arkansas Senator J. William guidance of the J. William Fulbright tOly of participation in the Fulbright Fulbright, sponsor of the legislation, Foreign Scholarship Board, appointed program, both with students going saw it as a step toward building an by the US President, the US Informa abroad and hosting foreign students a1 rernative to armed conflict. Fulbright tion Agency sponsors the program in who come to the US on Fulbright died earlier this year at the age of 89. cooperation with binational Fulbright Grants. Below, several Duke law stu Each year the Fulbright Program Commissions and Foundations abroad dents and alumni who have partici allows more than 800 Americans to as well as US embassies. pated in the Fulbright Program srudy or conduct research in over 100 Along with opportunities for intel past, present and future- share their narions. The US Student Program lectual, professional and artistic growth, expenences. gives recent BS/BA graduates, master's the Fulbright Program offers invaluable and doctoral candidates, and young opportunities to meet and work with Helping the Impoverished in Ch ile professionals and artists opportunities people of the host country, sharing "I spent nine months in a Chilean for personal development and interna daily life as well as professional and cre slwn, where I underwent the most rional experience. Grantees plan their ative insights. The program promotes profound experience of my life," wrote own programs, with projects which cross-cultural interaction and mutual Michael Samway, a '% ]D/LLM can may include university coursework, wlderstanding on a person-to-person didate in his personal statement for the independent library or field research, basis in an atmosphere of openness, Fulbright Grant application. "Living special projects in the social or life academic integrity, and intellectual with the poor has given me a unique science, or a combination. freedom. perspective on human needs. I know 50 DUKE LAW MAGAZINE / WINTER 1995
that it is important, as a student of conducted by the Ministry of Justice. period, but never for a stay longer than human rights, to go beyond the theo Samway also plans to publish short three months. His goal was ro return retical realm, to advance into the world pieces in Spanish on new techniques for a longer period of time. of the practical, and to share, eat, cry, for dispute resolution in marginalized While at Duke Law School, he celebrate, mourn, and demand together communities, and to produce a direc studied international and comparative with the poor. Law is a powerful mech tory of public and private legal aid law, and applied for the Grant. "Study· anism for affecting social change, and services available in poor areas. ing in Singapore was a logical continu I hope to use my degree to that end. Samway is joined in Chile by ation," he says. "I saw the Fulbright As a law student now, I feel obligated his wife, Jennifer, who holds master's as a way to set myself apart from [the to return to the marginalized commu degrees in agricultural economics others interested in pursuing a career nities in Santiago." from the University of Missouri and in international law] ." Samway proposed, with the aid of in public health from Johns Hopkins During the summer of 1991, a Fulbright Grant, to return to La Pin University. She had also worked in Reading worked at Palakrishnan & tana, the most impoverished commu Latin America before coming to Chile, Partners in Singapore (Palakrishnan nity in Santiago. In 1991-92, Samway spending nearly a year on a research is a well-known attorney there, and had lived in that slum, teaching car project in Bolivia. "One of our aims," recently defended Michael Fay, the pentry, counseling youth at a drug says Samway, "is to write something American teenager who was caned), rehab center, and helping kids get out together on social services for the poor and as a summer associate at Couden of prison. His proposal was accepted, in general, as Chile consolidates its tran Brothers in that country in 1992. and Samway is now investigating legal sition to democracy and continues to Reading says he has built his career ant assistance programs in La Pintana develop its neoliberal economic model." resume based on his desire to return to "aimed at strengthening a justice sys Despite the heavy workload, Sam Southeast Asia. "Singapore is becomin! tem which in theory guarantees the way and his wife have made time to the hub of Southeast Asian develop rights of all Chileans, but in practice travel around the country and experi ment," Reading explains. "Many orga is in need of modernization." ence the Chilean landscape and culture. nizations are moving their Southeast "This was ultimately a personal "We've camped at 15,000 feet in the Asian operations from Hong Kong to decision," says Samway, "because the altiplano (high plain) region, trekked Singapore, since it is ideally positioned work I'm doing here is not directly in the spectacular peaks of the Andes, geographically to handle activities from related to my career direction-I hope and we recently took crampons, ice India to Vietnam." to practice private international law in axes and a guide and climbed a snow His Fulbright Grant, which ran Latin America." Samway was a summer capped volcano in Chile's lake district. from July 1993 to May 1994, gave associate in the corporate international We've also been to Chilean folk festi Reading the opportunity to graduate section of Morgan, Lewis & Bockius vals, music recitals, exhibits of indige from the Master of Law program at and recently published an article on nous art and political lectures." the National University of Singapore, foreign investment and tax law in Chile. When his Grant ends in August, where he studied a mixture of inter Samway has worked with Chile's Samway will return to Duke to finish national business law and local com Ministry of Justice in a new program law school, then begin a career in pri merciallaw. "I would not have been which "not only provides legal repre vate law working in international busi able to afford to come to Singapore sentation for poor persons before tri ness transactions with Latin America. to get the LLM without the Fulbright bunals, but also holds workshops ro "One day I would like to return to the Grant," he notes. inform people of their rights," he State Department Legal Adviser's Office Immediately after his Grant work, explains. "The poor can also come to [where he had served as a law clerk] and Reading returned to New York to work these new centers for legal advice on eventually join the diplomatic corps." for Coudert Brothers, an international any topic. These are novel ideas here, Samway says that the principal law firm, where he worked mostly on at least in practice," he notes. objective of his Fulbright experience "is distress debt trades and aircraft operat Recently, he designed a question ro produce something useful for people ing leases. This past December, Read naire to determine clients' needs at in marginalized sectors of Santiago." ing again returned to Singapore to legal clinics and also their perception work for White & Case. of access to the justice system after Studying law in Singapore "My whole objective in going to five years of democratic rule. Samway Before receiving a Fulbright Grant, law school was to enter into a trans hopes that his proposal will be inte Michael Reading JD/LLM '93 had visited actional practice in Southeast Asia," grated into a city-wide evaluation Singapore several times over a five-year explains Reading. "This is exactly what VOLUME 13. NO.1 51
J am doing now-moscly in the area The Fulbright program has opened During the fall semester, Yoshida of project finance and securi ties." up new opportunities for him: "With concentrated on getting a background Reading says that Singapore is a out the Fulbright, I wouldn't have the in American law. This spring semester, wonderful place to live. "In many ways opportunity to really go in-depth and she plans to take at least two courses ir is more pleasant than living in many study from a Japanese perspective-to at the Law School, and to work on places in the US. Professionally it is far see US-Japan trade relations from their independent study research in property superior, and for raising a family there side," says Kiss. "Spending the year rights with Professor Laura Under is no comparison with any place that there is going to allow me to utilize kuffier as her advisor. Yoshida says her [have lived. However, the drawbacks Japanese sources to do research to see interest in property rights stems from are that I enjoy winter and outdoor how they view the problem. We have the Supreme Court decision in May activities-neither exist in Singapore. so many trade frictions with Japan and 1994 in the case of Dolan v. Tigard, Additionally, I have a very large dog I know that they think the Americans 114 S.Ct. 2304 (1994). Based on this (a Rorrweiler) and it is difficult to find are totally off-base and we think they're research, she plans to submit an article places where we can really let him go completely wrong. This opportunity to the publishing committee at her and play without concern." will enable me to see things from a dif Japanese university. Of his year in the Fulbright pro ferent perspective, and perhaps think While in America, Yoshida has gram, Reading maintains: "I wouldn't of some different possible solutions." had the opportunity to meet several uade my [Fulbright] experience for After completing his year abroad Supreme Court justices in person. This anything. It was-and is-invaluable and returning to Duke to complete past October, an American professor ro my career." his degrees in 1998, Kiss hopes to prac who had visited her Japanese university tice international trade law or a similar invited her to a meeting of the Ameri Studying US-Japan Trade field. He is optimistic that his Fulbright can Society for Legal History in Wash Relations and Trade law experience will be beneficial to his ington, DC. There Yoshida met Justices Lester Kiss, a JDI future plans. David Souter and John Paul Stevens LLM candidate In addition, he looks forward and retired Justice William Brennan. at Duke, applied to a change of pace: "I came to Duke This is Yoshida's second visit to for a Fulbright direccly from Princeton. Since my pro the United States. In 1988, she spent Grant during gram started in the summer, I didn't a month as an exchange student at his senior year at have any time off, so it's going to be Amherst College, the sister college to Princeton. JUSt nice to have some time to do some her Japanese alma mater. After this year after he arrived thing free and do some research that is done, she plans to finish her studies at Duke to start I've always wanted to do." in Japan, where she has at least one lester Kiss his program this year left in the doctoral program. As past summer, he Experiencing America First-Hand for returning to the US in the future, got the word that he was accepted as While Kiss makes plans to go to Yoshida says "I would like the chance a Grant recipient. Japan, one of his classmates has trav to come to the US again to get more Kiss plans to travel to Japan this eled in the opposite direction. Hitomi background, then teach in Japan." summer, where he'd like to study law Yoshida, a '95 LLM candidate who Throughout the years, the Ful and the Japanese legal system for sev holds a Bachelor of Law degree and bright program has provided many eral months before starting his Grant an LLM from Doshisha University in Duke Law students with unique oppor work in September. He wrote his Grant Japan, is studying at Duke Law School tunities to experience other cultures, proposal on US-Japan trade relations this year on a Fulbright GranL Yoshida to learn new perspectives, and to make and trade law. "I will be advised by a is working on her doctorate in compar a difference in the lives of others in our professor who specializes in interna ative constitutional law, and plans to be global community. Fulbright Grants rional trade law," explains Kiss. "I'll a professor back in her native country. have enabled Duke students and gradu be doing that research in Japanese and "It's great to come to the United ates to contribute to the world, just as ultimately I'll write a thesis on the States," says Yoshida, "because I am the entire Duke community has bene subject." Kiss is no stranger to Japan. studying the constitutional law of the fitted from exposure to the visiting Ful He spent his junior year abroad there, US and I wanted a chance to live where bright scholars the School has hosted. learning the language. Since that expe the law was happening. The Fulbright Laura Ertel rience, he has continued to take Japa has given me the chance to do that." nese language classes. 52 DUKE LAW MAGAZINE I WINTER 1 995
Bundeskanzler Scholarships in Germany
arely has a nation experienced after graduating right now there's only one German the number of convulsive from Davidson speaking attorney in Charlotte offering Revents that Germany did from College in 1991. his services to this growing segment 1989 to 1991. The changes began with After five months of the business community." After the fall of the Wall dividing its commu at the Kiel Insti graduation, Murphy may double that nist East and capitalist West and were tute for World number by returning to Charlotte to highlighted by reunification in 1991. Economics, he work with some of the German sub Nearly five years later, the aftershocks worked in the sidiaries there. are still being felt by the country's Treuhandanstalt, For now, Murphy is planning his political, economic and social systems. Sean Murphy the agency respon- LLM thesis, which will follow up on For Duke student Sean Murphy, sible for privatiz his privatization research, under the a '96 ]D/LLM candidate, and alumni ing the East German state's assets. This supervision of Professor Herbert Bern· Phoebe Kornfeld '90 and Todd Daubert assignment included an emotional stint stein. "Duke has an ideal program '93, a desire to document this country in a small branch office in the former and an excellent faculty member with in transition led to a fully-funded year East German town of Gera. His great whom to study and prepare the thesis,' of independent research in Germany great-grandparents had emigrated from he concludes. as Bundeskanzler Scholars. that region a century before. "It was Professor Bernstein is a common In 1990, the German government incredible," he says. "No member of thread for all of the Bundeskanzler established the Bundeskanzler Schol my family had been there in over three Scholars. Both Kornfeld and Daubert arship program to expose future Amer generations. It was a part of our heri credit his assistance in shepherding ican leaders to the new Germany. tage that was closed off by World War them through the highly competitive Administered by the prestigious Alex II and then suddenly reopened by the application process. A German native, ander von Humboldt Foundation, the fall of the Wall. " Bernstein explains that his familiarity program is funded by the Chancellor with "German practices and German ("Bundeskanzler") of Germany. This ways of thinking" allowed him to sponsorship allows the scholars invalu Each year the program help develop research proposals that able access to members of government selects 10 Americans to would interest the German selection and industry, including Chancellor commIttee. Kohl himself, who makes a point of pursue independent research meeting personally with the scholars at projects in Germany. After Comparative Study Helps Clients least once during each year. Each year only four years, Duke Law Bernstein approached Phoebe the program selects 10 Americans to Kornfeld '90 about applying for the pursue independent research projects in School already claims three Scholarship the year after she gradu Germany. After only four years, Duke of the program's participants. ated. Although she was then working Law School already claims three of the in the corporate department at White program's participants. & Case in New York City, she explains, After his scholarship year, Murphy "the possibility of living in Germany Interest in German Business sought a law school that would allow during such an important period in From 1991-93, Charlottean Sean him to pursue his interest in Germany its history-so shortly after the fall of Murphy studied the privatization of and its law. Presently a second year stu the Wall-was irresistible. " businesses in the former East Germany. dent, he pronounces Duke's joint ]0/ Kornfeld had already spent much Murphy had witnessed much of the LLM program "an absolutely perfect of her academic life studying Germany new Germany's tumult first-hand fit. " Murphy has been struck by the and comparative politics, earning a BA while spending an undergraduate year growing demand for attorneys to work in German and government from St. abroad there during 1989-90. "It was with foreign companies in the United Lawrence University and a PhD in an incredibly exciting time to be in States. "There are 250 German compa political science from Duke. Her doc Germany," he recounts. "One thing nies with subsidiaries in North Caro toral research focused on comparative happened after another that no one lina, 95 of which are located in and politics and included a year of study in expected." He returned to Germany around Charlotte," he explains. ''And Hamburg. This time, she decided to VOLUME 13, NO. 53
study the way the reunified Germany was working for the German Embassay policy on foreigners and integration, dealt with crimes committed in the at that time, spent their breaks discuss consults and coordinates the work of former East Germany. This inquiry ing issues of German and US law. all departments dealing with related meshed with research she had done Daubert, intrigued by the opportunity issues, promotes assimilation of immi at Duke Law School on the way Ger for independent research in a country grant subgroups, and provides infor many's post-war legal system and judi undergoing tremendous change, de mation for those seeking advice on ciary dealt with crimes committed cided that the Bundeskanzler program integration and foreign policy, as well under the Nazi regime. "I compared was an ideal way to continue his legal as on legal and political questions. "I the'de-Nazification' of the German education. have the unique opportunity to learn legal system in the post-war period Daubert is spending the 1994-95 how the German laws and policy have with the 'de-communization' of the year learning about the rights and affected foreigners in Germany, not German legal system in the post-Wall remedies of foreigners under German only by listening to the stories of period," she explains. By observing law. Facing both economic pressute foreigners who consult the office for trials and interviewing lawyers, poli caused by reunification and world advice, but also by discussing these ticians and bureaucrats, she also recession and an increasing influx of cases with people who have the author developed a better understanding of asylum applicants, Germany re-evalu ity to influence the political discussion Germany's legal and political systems. ated and amended its post-war policy about these issues." That knowledge is serving Korn of encouraging guest workers to fulfill During his 1993-94 clerkship feld well. Since returning to White & short-term labor shortages and liberal with Judge Gerald B. Tjoflat '57, chief Case after her Scholarship year, her asylum laws. Daubert is evaluating the judge of the Eleventh Circuit Court of ability to communicate with and work effectiveness of these measures, which Appeals, Daubert became aware of the with German clients has led to stints in have been in operation since 1993. intense social, legal, and political issues the firm's Frankfurt, Prague, Paris, and Although he spoke no German surrounding legal and illegal immigra Budapest offices. Kornfeld works on before beginning his Scholarship, he tion to the United States. "I decided international transactions and analyzes quickly gained language proficiency by to study foreigners under German issues oflocallaw for domestic and for taking advantage of the Bundeskanzler law because 1 hoped that 1 could con eign clients. She believes her year in program's one-month intensive lan tribute information about the German Germany gave her "an understanding guage course in Bonn, followed by an approach to these issues to the current of the goals and concerns of Germans additional month oflanguage training debates in the United States." He will today," she says. "Without that under given in conjunction with an introduc join the law firm of Wiley, Rein & standing, my work with German clients tory seminar about Germany. Daubert Fielding in Washington, DC next year. would be considerably less effective." then spent three months sutying law at Although he expects to work primarily the University of Konstanz. "Studying on international trade issues, he plans Intrigued by Changes German law from wi thin Germany is to publish articles detailing the results Although Todd fascinating, because you gain a deeper of his work on German law in both Daubert '93 first appreciation for the differences in the the US and Germany and to continue became interested legal education system and legal phi working with refugee and immigration in German law losophy, and how these differences are issues in a pro bono capacity. and the compara reflected in Germany's administrative All three Duke recipients believe tive legal method structures and laws. Without fully the Scholarship experience has en while studying at understanding these differences, it hanced their understanding of a com Duke with Pro would be very difficult to gain any plex and changing country. Thanks to fessor Bernstein thing beneficial from simply reading the dedication of professors like Todd Daubert '93 and Visiting Pro Germany laws." Herbert Bernstein, Duke is well-repre fessor Humberto Daubert is now working in the sented among the next generation of Briceno, he was introduced to the Bun office of Barbara John, the Commis American leaders with firsthand knowl deskanzler program by German citizen sioner of Foreigners' Affairs of the edge of the new Germany. Christoph Partsch LLM '92, while they Berlin Senat. The Commissioner's Amy Gillespie ~3 were both studying for the New York office, among other things, addresses bar exam. Daubert and Parrsch, who questions concerning the Berlin Senat 54 DUKE LAW MAGAZINE / WINTER 1995
Increasing and Strengthening Contacts with Eastern Europe
Duke Law School has become one ofthe premier international centers of to the ruling elite. Thus, they are secure legal education in the world, educating students ftom as many as 25 foreign in their positions in government and countries each year, and offering a pioneer JD-LLM program in international in legal institutions while also being in and comparative law. Here two Duke students reflect on their experiences at a position to block the democratization the Ukrainian Legal Foundation and speculate on prospects for a rule oflaw of the legal profession and the transi in Ukraine while other students and scholars participate in Duke programs. tion of the law from an instrument of governmental control to one of indi vidual rights. Expe ri encing Legal Reform in the Ukraine The orientation of the legal system toward protecting the government has e often take our legal sys where you have to wait hours or even brought it into disrepute. Until now it tem for granted. We recog days in order to get any document has been almost impossible ro bring a W nize the problems, worry notarized, unless, of course, you can civil suit successfully against the govern about excess COSt, accessibility, and afford the bribe. These problems are ment. The standard manner of assur delay. But we forget how well the system compounded by the cacophony oflaws, ing victory in any case was to appeal works to resolve disputes and to protect decrees, directives, coming from the leg directly to the judge, usually with cash us. To see how life could be without a islature, the president and government or presents. This worked unless the working legal system all you have to do agencies that are liable to conflict so fun Communist Party had a particular is take a peek behind what was the iron damentally with each other so as to be interest in the suit, in which case a curtain at the legal chaos that cripples undecipherable. Just discovering what well-placed telephone call would ensure attempts at reform in Ukraine. the law is can be a major undertaking. the "proper" verdict. The problems start at the top, Worst of all, the higher levels of When I went to Ukraine in the fall where there is no adequate mechanism the legal profession have adopted an of 1992, I had none of these problems to resolve disputes between president attitude at odds with the necessity for on my mind. I arrived with the hopes and parliament, down to the local level change as they are strongly connected of studying the collapse of political power and the role of nationalism in creating an independent Ukrainian state out of the remains of the Ukrain ian Soviet Socialist Republic. Little did I know that my wife's work with the Ukrainian Legal Foundation and my discovery of the fundamental nature of a working legal system would convince me to leave Soviet studies to take up a career in law. The Ukrainian Legal Foundation (ULF) is one of the few organizations in Ukraine today dedicated to the crea tion of the stable legal framework nec essary for the development of a demo cratic society with a market-oriented economy. This foundation was created Photo of the staff of the Ukrainian Legal Foundation, summer 1994. Jennifer Labach is at far right, front row with Ken by Ukrainian lawyers, with Western Labach immediately behind her. input and funding, in an attempt to VOLUME 13. NO. I 55
bring [0 Ukraine that which we take interview applicants for the Edmund for granted, the rule of law, an inde Muskie Fellowship Program, an award pendent judiciary and legal profession, intended to bring young scholars from and comprehensive legal education. the former Soviet Union to study in Under the leadership of Serhiy the United States. The Muskie Fellow Holovaty, a prominent independent ship Program is funded by the United member of the legislature, the ULF has States Information Agency and facili raclded a number of projects including tated by US-based organizations that me creation of Ukraine's first indepen provide local support in the target - dent legal publishing house, a legal countries. Of these organizations one library containing one of the largest of the most widespread is the Soros collections of Western legal literature in Foundation, operating in 22 countries Ukraine, and of most interest to those in Eastern Europe and the former connected with Duke Law School, in Soviet Union. Among the many pro me fall of 1995 they will soon open jects sponsored by Soros is the Ukrain ne of Duke's two Muskie Fellows for me doors to a new law school. ian Legal Foundation. O1994-95 is Askar Moukhildinov from Duke Law School's interest in For the past three summers, the Kazakhstan. He is currently studying com mer Ukraine and the work of the Ukrainian Soros Foundation has also provided ciallaw, international business transactions and conducting independent research in the field of Legal Foundation began when Asso funds to bring students from Eastern oil and gas. After his May graduation from Duke, ciate Dean for International Studies Europe and the former Soviet Union he plans to do an internship with an American Judith Horowitz travelled to Moscow to Duke's summer program in Brussels. law firm specializing in these areas, then return and Kyiv in the winter of 1993 to LaSt summer, it funded 16 students to Kazakhstan or another former Soviet Bloc country to join a law firm which also specializes in these fields. Oil and gas is one of the biggest industries in the former Soviet Union. Participating in foreign study programs is common for students in Kazakhstan, explains Moukhitdinov. But many of the government scholarships are reserved for undergraduates. As a graduate student, he was pleased that the Muskie Fellowships were available to fund his studies. In February, Moukhitdinov travelled to Washington, DC for a gathering of all the cur rent Muskie Fellows. "The purpose was to meet other participants from our program and to meet with government officials, because the US gov ernment sponsors this program. We also met From leff, Kay Walker of the Law School's Office of International Studies with Stanislav Shevchik and Anna with Edmund Muskie, and talked with psychol Veiksha, visiting researchers from Ukraine. ogists about culture shock when we came here and preparing us for culture shock when we go nna Veiksha is one of two scholars at Duke Law School this year preparing to become faculty mem back. I've found that there's not much time for Abers at a newly established law school in the Ukraine. The school will train new lawyers as well as pro culture shock since I'm always studying and I'm vide advanced training for legal professionals. "Last semester I sat in on some courses, worked on teaching spending all my time with my books!" techniques, and wrote a paper on international commercial arbitration," says Veiksha. "I talked with profes In spite of all the time spent studying, sors from the Law School as well as with judges from the United States appellate courts who were here to Moukhitdinov is still finding his year at Duke teach courses." The paper will become the basis for the international commercial arbitration course she will Law School to be a great experience. "We have teach when she returns home. many students from different countries, not only This semester, she is preparing a second course on comparative contract law. Veiksha believes that her from the former Soviet Union, but from Europe, experience here will be useful not only with the students she will be teaching but perhaps even more impor Latin America, South Africa, America . . . tantly with her generation of young lawyers who, facing the opening up of Ukraine to the world and looking Everyone is different, from all different cultures, for a place in that world, are willing to accept new ideas and learn from someone who has spent time in and we're trying to adjust to each other, to the West. understand each other. It's very interesting." 56 DUKE LAW MAGAZINE / WINTER 1995
from seven countries at the Brussels Duke take an active role in the creation together with their colleagues visiting program, and it typically also provides of their new law school, the Center other law schools in Europe and North funding for two students to study in for Legal Studies. The new school is America, would form the nucleus of Duke's LLM program. intended to be an independent, post the faculty at the new law school. The Ukranian Legal Foundation graduate institution, teaching subjects The first two Ukrainian research had been asked by the Soros Founda generally ignored in the standard ers arrived at Duke in the fall of 1994. tion to distribute applications for the Ukrainian law school curriculum. Duke They are now attending classes, work Muskie Fellowship in Ukraine and Law School's role would be to host ing with faculty, visiting administrarors to provide space and support for the Ukrainian researchers for an academic and preparing to teach new courses in selection interviews for all American year so that they might observe courses Kiev next fall. Anna Veiksha, a gradu universities, Duke included. It was at and see how a Western law school ate of the University of Donetsk in the office of the ULF that Dean Horo operates. During the year, they would Ukraine and an LLM candidate at the witz met Halyna Freeland, a Canadian work with Duke faculty to develop Central European University in Buda lawyer and the then executive director curricula for the courses they would pest, is working on courses in interna of the ULF. Freeland proposed that teach in Ukraine. These researchers, tional trade and arbitration. Stanislav Shevchik, a graduate of the Kharkiv Juridical Academy and former member of the procurator's office in the city of Kharkiv, is preparing for a course in comparative constitutional law. The problems inherited from the Soviet legal system are especially visible at the top of the political structure. While I was working as a copy editor of an English language version of the Constitution, I noticed that there is no legal mechanism to resolve a dispute between the president and parliament except the impeachment of the presi dent or the dismissal of parliament. In the Soviet era, this was not a problem because both groups were taking orders from the Communist Party. But when these two branches become adversaries, alvi Siavov (shown fourth from left at an Institute dinner) of Bulgaria was one of 16 students from seven the situation becomes dangerous. countries in Eastern Europe and the former Soviet Union who attended the Duke Transnational Institute S The best example of this situation in Brussels last summer. "That was the first time I ever left Eastern Europe and entered the West," says Siavov. occurred in Russia in the fall of 1993, "I had the rare chance to learn more, firsthand, about the EC and its legal environment. Integration in 'Europe proper' is the top priority for all Eastern European countries." but it could just as easily occur in Siavov, the only student from Bulgaria, believes that he contributed to the Institute as well, with "a (mod Ukraine because of the constitutional est) degree of maturity and adaptability, an eager desire to learn and explore, and a unique cultural perspec similarities. The crisis started because tive." He notes that the geograhic diversity of the student body provided for "an amazing cultural diversity. of a long-standing power struggle We all benefitted from the plurality of cultural, academic and personal perspectives. between President Yeltsin and the "Their presence brings a great deal to the Summer Institute," notes Judy Horowitz, associate dean for Chairman of Parliament Alexander international studies. "They bring information on legal systems and developing legal systems about which Rutskoi. They were at loggerheads over Duke students would otherwise know very little. Ours is the only summer program with students from places the shape of the new Russian constitu like this, outside programs in Eastern Europe itself. It's an opportunity for students from different cultures to tion and the pace of economic reform. take classes together, interact socially, live and learn together." Unfortunately, the legal framework Sarene Loar (far left) and Wendy Rogers (far right), two American Duke Law students who attended last left by the Soviet era constitution gave summer's Institute, agree. They found it enlightening to meet students from Albania, Bulgaria, Romania, the neither side a peaceful mechanism for Ukraine and other Eastern and Central European countries, and to learn about their legal education, legal careers, and legal systems. "Everyone benefitted from having them with us; we have all made contacts upon resolving the dispute. Yeltsin dismissed which we will always be able to call in the future, whether as friends or professionals." Parliament, which in turn impeached him. The situation was uncertain until VOL U ME 13 , NO.1 5 7
Interning with the Ukrainian Legal Foundation
As I boarded my Swissair flight to Kiev last May, ference brought together a working group of I was excited, but somewhat apprehensive, about Ukrainian lawyers who had drafted the Code and , what awaited me. I was on my way to a six-week German, Dutch , and Russian experts on civil codes. position as a summer intern at the Ukrainian Legal The draft Code, an ambitious undertaking, had been Foundation. I had been warned that it would be completed by the Ukrainians in a short period of tough , that Ukraine was a poor country, that there time. Christina Maciw, a member of the Foundation might not be enough food to eat, and that radio Board , and other members of the Foundation , activity from Chernobyl (some 60 miles north of including Ken Labach , had been very helpful in pro Kiev) was still present. But, as a joint JD-LLM can ducing and refining this draft. German partiCipants didate at Duke University's School of Law, I felt for in the conference were quick to point out that it tunate to have the opportunity to work, even for a had taken Germany some 30 years to produce its short time , in a former Soviet bloc country during civil code. its transition to aWestern legal culture. So off I went. The Conference was a great success. Parti What I found in Kiev was not at all what I had cipants worked through the document article by expected. Although the airport was somewhat run article, offering suggestions and modifications. One down, the city was lovely. Kiev, the mother city of issue of particular importance, that remained unre Russia-although now in Ukraine-has a long and solved , was whether the Ukrainian Civil Code proud tradition. It was here that in the 9th to 11th should incorporate a commercial code (as in the centuries were founded the state from which all later Maurine Murtagh Netherlands), or whether this should be a separate Russian states were descended (Kievan Rus) and document (as in Germany). But great progress was the Orthodox church. There is marvelous architec Halyna Freeland, its executive director. I also met made in refining the draft Code and further meetings ture and beautiful parks. It is avery open city of wide Jennifer Labach , then executive assistant to Holo were planned for this fall. I helped to produce asum boulevards , wonderful for strolling. And the people vaty and Freeland, and now assistant director for the mary, in English, of all the suggested changes This ,
I are very friendly. I settled into an apartment, pro Commission on Radio and Television Policy (a col in turn, was translated into Ukrainian by Ihor vided by the Foundation, which overlooked one of laborative project of the DeWitt Wallace Center for Tsymbalisty, a Foundation staff member. the city's botanical gardens, and looked forward to Communication and Journalism of Duke University The Conference, it seemed to me, was a great my first day of work. and the Carter Center of Emory University), and her example of the Foundation 's work at its best. I walked to the Foundation that first day, not sure husband, Ken , then an English language editor for Through the cooperative efforts of the Foundation what I would find . What I found was agroup of ener the Foundation, and now a first-year law student at staff-from translators, to Board members, to getic people, crammed into small quarters, working Duke. Jennifer and Ken took me under their wing administrative personnel-and the working group on a variety of projects. The Ukrainian Legal that first day at the Foundation and showed me of Ukrainian attorneys, a draft Civil Code was put Foundation was formed in 1992 by asmall group of the ropes together efficiently The Foundation then orches Ukrainian lawyers. Believing that in order to effect I soon became involved in two projects at the trated the Conference, bringing together acknowl political, economic and democratic reforms it would Foundation. The first was to help organize and par edged experts in the field , and provided a forum for be necessary to reform the legal system in Ukraine, ticipate as an observer in an international con a real dialogue by the participants. This, in turn, will the Foundation 's goal is to help establish the rule of ference on arbitration that brought together British lead to a new, improved draft Code. , law in Ukraine. To this end the Foundation, funded arbitration experts and Ukrainian lawyers interested For me, however, life in Kiev was more than by the Soros Foundation, has initiated a number of in learning more about this form of dispute resolu work on conferences and other projects. I also found major and minor projects. These include the estab tion. Of particular interest to the Ukrainian partici time to go to the ballet and opera in Kiev, both lishment of a new law school, the Center for Legal pants was the question of jurisdiction. Since many of which are of avery high standard. I also did some Studies, in Ukraine; the establishment of a legal of their contracts dated from the Soviet era , the touring in the city, visiting such famous sights as St. library and creation of a legal publisher; founding Ukrainians were concerned that Russia had declared Sophia Cathedral and the Caves Monastery. But, of the Ukrainian Center for Human Rights; assis itself the legal successor to these contracts. perhaps best of all , I made awonderful group of new tance with legislative drafting; organization of legal Worrying that Russian arbitration would not be friends at the Foundation. So , by the time I boarded conferences and symposia; and selection of indi unbiased, the Ukrainians sought ways to protest my return flight in late June, I was sad to leave Kiev, viduals for scholarships and internships in Western Russian jurisdiction. The British experts were able but happy that I would see some of my new friends, countries. to give appropriate advice on this and a myriad of like Jennifer and Ken Labach, here at Duke. And My first day at the Foundation I was introduced other topics. happy that the valuable work of the Foundation was to Serhiy Holovaty, a member of the Ukrainian My second project involved aconference on the continuing . Parliament and president of the Foundation , and codification of the Civil Code of Ukraine. This con- Maurine M. Murtagh '96 58 DUKE LAW MAGAZINE / W I NTER 1995
the army stepped in to support Yeltsin Ukrainian constitution have not of the rule of law must take an active, by shelling the parliament building. addressed this problem. participatory role in their society. Pro I happened to be in Moscow to Other areas of law have similar grams like those run by the ULF and take the LSAT just before the culmina problems. Confusing taxation laws supported by Duke Law School are tion of this tragedy and realized that stifle private business and foreign providing young lawyers with the roo~ the legal framework of the constitution investment; the financial markets are they need to make a difference. Once had left neither side any choice in this dominated by unregulated pyramid abroad these lawyers can gain the matter. The authors of the old Soviet schemes (one of these, named MMM, experience necessary to challenge the constitution, knowing that the Com recently collapsed in Moscow); crime status quo and reshape the legal system munist Party controlled both the presi is at an all time high and is linked to so that it can meet the challenges of dent and parliament, never conceived large-scale corruption in government; an open society and the demands of of a need to have a mechanism to and the citizenry is passive. a public ready for change. resolve their disputes. Unfortunately, People who live in a democratic Kenneth J Labach '37 the drafts I have seen of the new society operating under the principle llM Student Elected to Hamburg State legislature
arsten Tietz, a '95 LLM can will begin the last stage of his legal edu require the ability to work with inter didate, is busy juggling his cation. In the final phase he will receive national firms in English, he explains, K studies with his new position practical training as he rotates through and it's often a prerequisite to have an as a representative in the Hamburg five different legal areas over the course international degree. Visiting the US state legislatute in his native Germany. of rwo years. He will start in either also gives Tierz a view of Germany's Tierz will commute berween Durham criminal court or state prosecution. possible future. "There are some things and Germany for the next few months Tierz does not believe that politics Americans experience which you can until graduation, should be a career. Instead, he sees it as imagine Germany will face in 10 or 15 then will return to a way to serve his community. "In Ger years-violence, crime, public apathy Hamburg to serve in many, as in the US, there is frustration about politics and political issues both Parliament and con with politicians," he notes. "Some have within and outside the co un tty. Right tinue his law studies. started in politics so early they have no now it's different in Germany, but we're At age 24, Tietz is other education. These 'professional headed the same way. We should do the youngest repre politicians' are fighting for their jobs to something about it before it gets to sentative in the his support their families, so they use dirty that point." Tietz is now trying to coor· tory of Hamburg's tricks and aren't honest. This leads to dinate a program which would enable state legislature. Karsten Tietz '95 public frustration with politicians." Duke students to visit Germany for a Long active in the Currently, serving in Hamburg's legis month as interns with the federal and Christian Democrat Party (the federal lature is not a full-time job. "Hamburg state legislatures, providing an invalu majority party, and the opposition representatives are expected to earn a able hands-on experience in interna party in Hamburg), he served as vice living. Sessions start at 4 pm and go tional government. chair of the Young Christian Demo into the night, and you can't earn a Tierz says he chose Duke for his crats before coming to Duke. living from politics alone." LLM studies because "Duke had the Tietz was 41 st on the party's list of Tietz has his priorities firmly in combination of an excellent reputation potential representatives when they won order. "First priority is my education, and a good location." He knows that 36 seats in the Hamburg legislature. His second priority is politics. If I'd done his schedule will be much more hectic opportunity arises about a year and a anything else but juggling completing when he returns to Hamburg, so he is half into the term because several party my studies at Duke, then I would have enjoying "having the time to relax, lay representatives have stepped down. been exactly what I criticized." back and do things-play tennis, join He will serve out the remainder of the Coming to Duke has enabled Tietz the Duke Chapel Choir, take French four-year term. to "combine the opportunity to live classes, go out with friends." When he returns to Hamburg, in in the US with a good move for my Laura Ertel addition to serving in Parliament, Tietz future career." Large German law firms VOLUME 13, NO.1 59
Shea is New Director of Annual Fund
ames J. aim) Shea joined the Associate Dean Evelyn Pursley notes, apart though, Shea Law School Alumni Relations and "We have enjoyed welcoming Jim to feels, is its alumni. Development office as director of the Law School where he has shown "There is a satisfac Jthe Annual Fund on August 22, tremendous energy and enthusiasm for tion our graduates 1994. He is responsible for implement his new position. Our volunteers are achieve through ing programs (including class agent enjoying working with him, and I know being involved activities and phonathons) to meet that his experience will serve us well." with alumni af established goals for the Duke Law "This is an outstanding opportu fairs, fundraising, School Annual Fund-those gifts from nity for me professionally," Shea says. and career devel "The development program's success opment." He adds, alumni and other friends of the Law Jim Shea School which directly supplement the was evident to me before I arrived, and "they have made School's operating budget. Shea works since August I've received numerous me feel comfortable and many have with staff and with student and alumni calls from annual fund colleagues from shown enormous energy levels. We are volunteers to accomplish these goals. allover the country. Each wants to find continuing ro grow in annual fund Shea comes to Duke from Emory out more about 'how we do it.' '' support, and that's an important signal University in Atlanta, Georgia, where 'How we do it' includes class agent -financial generosity is certainly he worked with the annual giving pro programs, student phonathons, the law needed for the School ro continue grams of nine schools, including the law firm campaign and simply asking providing an excellent legal education. school, and where he had previously alumni to contribute to the Annual I feel good about the prospect of directed Emory's gift records office. Fund. What sets Duke Law School increased alumni support."
Gifts to the Law School
lowry Unitrust Whitehurst Family Endowment Fund ing course in all aspects of intellectual William J. lowry L'49 T'47 has lee A. and Ann Dickerson White property to government officials, established the William J. Lowry Char hurst of Raleigh, North Carolina have judges and lawyers in Hanoi and Ho itable Remainder Unitrust with a gift established The Lee A. Whitehurst Chi Minh City (Saigon). (See article of$722,550, of which a minimum of and Ann Dickerson Whitehurst Fam on p. 30.) 85 percent will benefit the Law School. ily Endowment Fund with a gift of With the termination of the Unitrust, $498,000. The Fund will provide Goldbergs Donate Paintings the corpus of the Unitrust will fund the discretionary funds ro the Dean of the Robert A. T'40 l'49 and Dorothy William J. Lowry Endowment Fund, Law School. Dr. and Mrs. Whitehurst Goldberg T'38 of North Conway, New the income from which will be spent are the parents of Alan, E'94 r97, Hampshire have donated two paintings at the discretion of the Dean of the Bradford T'97 and Amy T'98. Dr. to the Law School-"Trout Fishing, School of Law. Whitehurst, a former member of the Camden, Maine" by Wesley Webber In acknowledging the establishment Duke University Medical Center 1841-1914 and "On the Way to Mr. of the Lowry Unitrust, Dean Pamela housestaff, is a surgeon. Lafayette" by Edward Hill 1843-1923. Gann said, "Bill Lowry has again shown Both paintings have been hung in the his tremendous generosity to the Duke Kraft Gift for lange Travel Burdman Faculty Lounge. Webber University School of Law. The flexibil KraH Foods, Inc. contributed and Hill were members of the Hudson ity provided for the use of the income $10,000 to subvent the travel expenses River School of Art and the White reflects his confidence that the income of Professor David Lange, who traveled Mountain School of Art. wiU be used by the Dean every year to Vietnam in November 1994 at the where it can best assist the Law School invitation of the Vietnamese govern in achieving its most urgent goals." ment, to teach a comprehensive train- 60 DUKE LAW MAGAZINE / WINTER 1995
Fund-Raising Underway for New Clinic for Persons with HIV/AIDS
he Law School is in the midst ciation), the AIDS Services Agencies Daniel Hudgins, director of the Dur of a fund-raising campaign for in Durham and Raleigh, and the ham County Department of Social T an exciting new clinical offer Durham and Wake County Health Services says: "This Department sees ing at the School. In December, the Departments. the problems associated with HIVI Law School faculty approved the aca There is no other legal office in AIDS, especially as it affects families demic merits of the AIDS Legal Assis North Carolina devoted to serving the with young children, as one of the tance Project, a Law School clinic for legal needs of the HIV/AIDS popula emergent issues of this decade. Staff persons with HIV/AIDS to begin in tion. Clients from throughout North members working with these families the fall of 1995. Clients will be repre have cited legal services as one of the sented by Duke Law students working un met needs of this population." under the close supervision of clinical There is no other legal office Duke Law School has made a instructors at the Law School. Eight in North Carolina devoted significant commitment to the AIDS to 12 students per semester will receive Legal Assistance Project. The project academic credit for assisting persons to serving the legal needs will be housed at the Law School and with HIV/AIDS with their legal prob of the HI VIA IDS population. students will be given academic credit lems. Each student will work 100 hours Clients from throughout for providing some 2,000 free hours per semester. They will receive class of legal assistance per year to persons room instruction as well as one-on-one North Carolina will receive with HIV/AIDS. There is demon supervision for their clinic cases. The assistance. strated student interest at Duke as project will remain open in the summer evidenced by the students who have months through the use of work-study already volunteered for the AIDS Wills students. Carolina will receive assistance. The Project. Strong working relationships Students will assist indigent HIV primary client base proposed to be have already been established berween infected persons free-of-charge with tes served by the project, however, is indi the existing AIDS Wills Project and tamentary and health care documents; gent HIV/AIDS clients in the Triangle. Duke Medical Center, Durham and permanency planning for children; It is estimated by the HIV/STD Con Wake County Health Departments, public benefits; insurance coverage; trol Section of the North Carolina the AIDS Community Residence Asso· guardianship proceedings and employ Department of Environmental Health ciation and the AIDS Services Agencies ment and housing discrimination. and Natural Resources that there are in Durham and Wake Counties. The project is an expansion of berween 8,272 and 10,340 persons in The Law School is seeking to raise the AIDS Wills Project, a volunteer the Triangle alone infected by the HIV the $130,000 in direct costs needed project at the School which starred virus. Clients served by the clinic are to launch the project in the first year. in January 1994. Berween 25 and 35 expected to mirror the demographics This project is a pioneering model for Law student volunteers have been of the Duke Infectious Disease Clinic the School. Contributions towards this working under the supervision of and the Pediatric AIDS Clinic. Just important effort may be sent to: The faculty member Carolyn McAllaster over 50% of the patients seen at the Duke AIDS Legal Assistance Project, preparing health care and testamentary Infectious Disease Clinic are African Duke University School of Law, Box documents for clients with HIV/AIDS. American. Approximately 70% are 90360, Durham, North Carolina Clients have been referred by Duke male. The majority of the parents at 27708-0360. For more information, Medical Center's Infectious Disease the Pediatric AIDS clinic are single contact Carolyn McAllaster at (919) and Pediatric AIDS clinics, ACRA mothers, African-American, with an 613-7036. (AIDS Community Residence Asso- average monthly income of $391. As VOLUME 13, NO.1 61
Faculty News
Bartlett Named Scholar/ Teacher of the Year Katharine T. Bartlett, professor oflaw and senior associate dean for academic affairs, has been named the Duke University Scholar/Teacher of the Year. She received the award from President Nannerl O. Keohane during the annual Founders' Day convocation in Duke Chapel in December. The award was created in 1981 by the Board of Higher Education and Ministry of the United Methodist Church for the purpose of "recognizing an outstanding faculty member for his/her dedication and contribution to the learning arts to a and the institution." It carries with a it a $2000 stipend, which Bartlett o ~ has donated to the Urban Ministries Center of Durham and to the Student Kate Bartlett, left, receives the University Scholar(Teacher of the Year Award from Nan Keohane , president of Duke Funded Fellowship program at the Law University. School. Bartlett is the second member of the law faculty to receive the Award; Beale to Lead Hospital quently), and is the first chair to be Deborah A. DeMott was the 1989 have the ability to log in to the hospital Scholar/Teacher of the Year. Trustees network, so that she is accessible by Dean Pamela B. Gann describes Sara Sun Beale e-mail as well. Bartlett as "a complete professor," has been elected In this time of phenomenally citing her teaching, research and ser chair of the Board rapid change in the health care industry, vice contributions. "Kate is a superb of Trustees of Beale notes that "it is both challenging teacher in both 'old' and 'cutting edge' Durham County and rewarding to work with the board, tOpics. She teaches regularly family law, Hospital Corpora administration, medical staff, and em gender and the law, and feminist legal tion. She has served ployees of Durham County Hospital theory.... She draws both young men on the Board since Corporation ro achieve the corporate and women into her courses. She has 1990. As chair, she mission, which is to improve the health published major teaching materials appoints the com- Sara Sun Beale status of the Durham community." in family law, gender and the law, mittees that control and feminist legal theory, and she is a finances, physician credentialing, risk popular and wise teacher, who is able management and quality improvement, Franklin Receives Award, to use in her courses her own widely the outreach activities of the corpora Celebrates Birthday adopted books." tion, and its planning. She sits ex offi Bartlett began teaching part time cio on all board committees, and also is John Hope Franklin, professor at the Law School in 1979, and joined a member of the board of the Founda emeritus of legal history, was honored the full-time faculty in 1981. tion for the Better Health of Durham. in October as a recipient of the Carter She is in close contact with the hospital G. Woodson Medallion during the administrators (daily or even more fre- 79th annual convention of the Atlanta, 62 DUKE LAW MAGAZINE / WINTER 1995
Georgia chapter of the Association for Luney Named NCCU Maxwell joined the Duke faculty the Study of Afro-American Life and Law Dean in 1979, after serving on the faculties History. The award recognizes Franklin of the University of North Dakota, for his contributions to the preserva Percy R. Luney, Jr., an adjunct the University of Texas, and at UCLA, tion and promotion of African-Ameri member of the Duke Law faculty since where he was also dean. Although he can history. 1985, was named dean of the Law officially retired in 1989, he continues In January, Duke University cele School at North Carolina Central Uni to teach at the Law School on a regular brated Franklin's 80th birthday. The versity (NCCU) in Durham in July basis. celebration featured a keynote address, 1994. An expert on international law "Race, History, and John Hope Frank and the Constitution of Japan, Luney lin," by Pulitzer Prize-winning author has been a member of the NCCU Metzloff and Mosteller David Levering Lewis, a community faculty since 1980. He was a visiting Join Commission scholar at the University of Tokyo in reception, and a dinner hosted by Thomas B. Metzloff 1983, 1986 (as a Fulbright Scholar), Duke President Nannerl O . Keohane. has been named and 1990. He was a Fulbright Lecturer Although officially retired, Frank a member of the on the Kobe University Faculty of lin has two research projects underway, Commission for Law in 1991-92. (See article on faculty including an ambitious study of run the Future of teaching international law on p. 29.) away slaves that will show ways a large Justice and the number of men and women put their Courts in North lives on the line to escape bondage. Maxwell Receives Carolina, and Teaching Award Robert P. Mosteller Horowitz Looking For Peace Richard C. Maxwell, professor Robert P. Mosteller has been named the reporter to in Chechnya emeritus, has been named one of the first recipients of the Clyde O. Martz the Criminal Justice Committee of that Donald l. Horowitz, James B. Duke Teaching Award presented by the Commission. The Commission was professor of law and political science, Rocky Mountain Mineral Law Foun created by Chief Justice James Exum was in The Hague on January 13-16, dation. Maxwell, along with Professor of the North Carolina Supreme Court 1995, for a meeting to discuss ethnic Howard R. Williams and the late Pro to study North Carolina's courts and conflict in the former Soviet Union fessor Charles J. Meyers, both of Stan to recommend a judicial system for the in the light of the Chechnya invasion. ford Law School, received the award next century. The Commission will The conflicts discussed were Crimea in recognition of their landmark book, develop a vision of an ideal judicial sys Ukraine, Moldova-Gagauzia-Trans Cases on Oil and Gas Law (originally tem that can serve North Carolina for Dniestria, Tatarstan-Russia, and published in 1956 and now in its sixth decades. The members will be asking Georgia-Abkhazia. The presidents of edition), for their abilities as teachers fundamental questions about the best Trans-Dniestria, Tatarstan, Gagauzia, of oil and gas law, and for their many means of resolving disputes and admin and Abkhazia attended and participated accomplishments and contributions istering justice. in wide-ranging discussions about the to the field of oil and gas law over possibility of ameliorating tensions. many years. VOLUME 13. NO. 1 63
law Alumni Association News
he Duke Law Alumni Associ edge of the applica ation (LM), which includes tion of environmen T all Duke Law alumni, sponsors tal laws affecting programs designed to advance legal industrial and com education and to promote communi mercial sectors and cation between alumni and the Law broad experience in School. Following is a report on some major federal and of these programs. state regulatory programs. David G. Alumni Seminar Klaber '69 is from An Alumni Seminar, "Changes in Pittsburgh, Penn me Delivery of Legal Services and How sylvania, where he They Affect Your Job Search" was held is a partner with at the Law School on October 6, 1994. Kirkpatrick & The LAA-sponsored Alumni Seminars Lockhart. He spe From left. Dave Klaber '69. Richard Salem '72. Haley Fromholz '67 and Randy bring alumni back to the Law School cializes in litigation May '71 participate in the Alumni Seminar. ro speak to students on topics of cur on behalf of both rent interest in the legal community. plaintiffs and defendants, with particu Law Alumni Weekend This panel provided information on lar experience in products liability, per The classes ending in '4' and '9' how recent changes in the delivery of sonal injury, construction, commercial celebrated their reunions on October 7 legal services have affected decisions litigation, and defamation. Haley J. and 8 during Law Alumni Weekend made by law firms, including hiring, Fromholz '67 has recently become a 1994. Over 200 alumni and their compensation and partnership. superior court judge for Los Angeles families returned to renew friendships The members of the panel were all County. Before that he was a partner with classmates and ties with faculty distinguished alumni actively involved with Morrison & Foerster in Los at the Law School. Members of the at Duke through the Board of Visitors Angeles, California, where he special Half Century Club also attended. The and/or the Law Alumni Association ized in business litigation and also classes ending in '0' and '5' will return Board of Directors: Randolph J. May served as a member of the firm's Part- next October 13 and 14 to celebrate '71 is a partner in the Washington DC ner Compensation Committee. their reunions during Law Alumni office of Sutherland, Asbill & Brennan, The panel was moderated by Weekend 1995. who specializes in communications Richard J. Salem '72, a founding The Weekend began on Friday law. He served for a number of years as partner of Salem, Saxon & Nielson afternoon with a student/alumni lun me assistant and then associate general in Tampa, Florida. He practices in the cheon, sponsored by the Law Alumni counsel of the Federal Communica areas of corporate business, governmen Association. First held in 1992 at the aons Commission where he exercised tal/administrative and international suggestion of the Law Alumni Associ supervisory responsibility in areas sub transactions as well carrying manage ation Board of Directors, the luncheon ject to the FCC's regularory jurisdic ment responsibilities for this 17- promotes interaction between alumni aon. He presently serves on the asso member firm. and students. Alumni returning for ciate review committee for his firm. "Students found the panelists to tl1eir reunions are invited to sign-up Ronald R. Janke '74 is a partner with be extremely informative," notes Bob for the luncheon and asked to provide Jones, Day, Reavis & Pogue in Cleve Smith, director of career services, "espe their specialty areas. This provides land, Ohio. He has served for many cially in the area of how law firm hiring an opportunity for a student to be years as the principal environmental decisions are made. There is no doubt matched with alumni by interest in lawyer on a national basis for numer that this information regarding the specialty area or geographic region so ous companies, including several in the hiring process will prove extremely that alumni can share useful informa Fortune 500. He has extensive knowl- valuable to students' job searches." tion with the students over lunch. 64 DUKE LAW MAGAZ I NE / W I NTE R 1 995
Sanford Institute corporation, Bob has practiced con of Public Policy tinuouslyas a corporate and securities on "Violence, the lawyer at the same law firm (Gibson, Dunn & Crutcher in Los Angeles) Media and First that steadiness alone is increasingly Amendment Is exceptional today-where he is one of sues." The program the most important leaders of one of was followed by the the largest law firms in the world. He ever-popular North has gone on to be involved in impor tant civic activities, particularly his Carolina Barbecue active role as senior vice president of the held on the front Los Angeles Olympic Organizing Com lawn. Various mittee for the 1984 Olympic games. actlvltles were But Bob always held a special place offered on Saturday in his life for his alma maters. I hear afternoon such as that he is exceptionally loyal to his Bob Montgomery '64 and Dean Pamela Gann undergraduate college, Williams, bur golf, a visit to the I know that he has always maintained Museum of Life his specialloyalry for Duke Law School The luncheon was held on the and Science, and tours of the Duke and Duke Universiry. He has been a front lawn of the Law School to ac Primate Center and Duke Gardens. tireless advocate for Duke-always commodate the outstanding response The traditional class dinners ended bringing together the various parts of Duke into a cohesive and workable -over 50 students and 75 alumni, the Weekend on Saturday evening. partnership. including members of the Law School's The Law Alumni Association He has illustrated his dedication to Board of Visitors. Said David Klaber, meeting, on Friday evening, began the success of the Law School and the immediate past president of the LAA with remarks from Dean Pamela Gann Universiry most noticeably by his chair and current member of the Board of and included the honoring of several manship of the Law School's Board Visitors, "Students enjoy the luncheon alumni for their professional achieve of Visitors for the past six years and by his membership on the successful because it gives them a unique oppor ments and their loyalry and devotion Campaign for Duke Universiry-Wide tuniry to get their questions answered to the Law School. Executive Committee. He has always and their fears assuaged, one-on-one. represented Duke in Los Angeles, and, Alumni love it because they can relive Montgomery Receives Dean 's most recently, he has assumed the their Law School days, which get better Alumni Achievement Award chairmanship of Duke's Development Council for Los Angeles. and better as the years pass by." Dean Pamela Gann awarded the For me personally and for [former] Ronald Janke '74, a member of the Dean's Alumni Achievement Award to Dean [Paul] Carrington, and for many LAA Board of Directors who specializes Robert K. Montgomery '64. This award others, Bob set a particularly strong in environmental law, also met with honors an alumnus or alumna who has example as chairman of the Board of a group of students from the Environ demonstrated in an extraordinary fash Visitors. Even though he had a busy mental Law Society during the lunch. ion an understanding of the special schedule, he never missed a meeting and no meeting ever had ro be sched relationship with and duties toward "We were very happy that Mr. Janke uled around his time; he led the Board took the time to meet with us," notes Duke Law School. In presenting the and me through the first serious long Tim Profeta '97, president of the Envi first such award to John F. Lowndes '58 range planning process ever undertaken ronmental Law Society. "He gave us in 1992, Dean Gann noted that "such by the Law School and the Universiry; great insight into the issues and type of an award is not likely to be made he was a Law School advocate in raising the funds for our new building addi practice found in the environmental de every year. The very infrequency of tion, providing leadership at a partic partmen t of a big firm like Jones, Day." the award is to indicate that it is to be ularly critical time. But perhaps the For the second year, Fridayeven made in special cases." In presenting a most telling comments were from other ing offered an all-alumni reception and Steuben crystal sculpture to commem alumni who have worked closely with dinner, during which the Law Alumni orate the award to Montgomery, Dean him. Upon the end of Bob's term as Association held its annual meeting. Gann reflected upon his service to the chairman of the Board of Visitors, I received many letters saying that 'it will Saturday morning offered a substantive Law School: be hard to replace Bob'; 'I don't know legal education program (for which whether we can find the right person to It has been 30 years since Bob met CLE credit was offered) presented by replace Bob;' and some in desperation Dean Jack Latty's initial expectations 'must we really replace Bob'. These William Van Alstyne from Duke Law at Duke. Except for a brief stint in a School and Jay Hamilton from the sentiments from his alumni colleagues VOLUI and friends speak more effectively than LAA programs, including service as a the Law School's Board of Visitors and I can. panelist for the Conference on Career the Duke University Board of Trustees. By this award, I have no intention Choices in 1990 and as a moderator The Awards Committee of the to "retire" Bob's Duke Law School jer for the Alumni Seminar in 1992; both LAA Board of Directors recommended sey; rather, I know that this is just a momentary pause to thank him for all programs are offered to students by that Kenneth Starr receive the Murphy that he has given to us in the past. He alumni. She has also been committed Award because he has dedicated most is going to continue to be a leader for to helping raise money for the Law of his career to public service. Starr Duke University. School by serving in the past as a class studied political science as an under Bob has the respect of all of us. He agent for the Annual Fund and serving graduate at George Washington Univer has done more than even Jack Latty would have required. Most of all Bob on her class reunion fund-raising com sity and as a graduate student at Brown is a superb example of what the Law mittee in 1990-91. University and worked for a year for School expects its graduates to achieve DeHaven, who also holds an the State Department's Bureau of Edu in the legal profession in providing undergraduate and master's degree from cational and Cultural Affairs before support to their community and Duke, is currently serving her third entering law school. In 1973-74, Starr to the University. I declare Bob Mont served as a law clerk to United States gomery to be an outstanding son year as the Law School's representative of his alma mater, Duke University. to the University's Alumni Association Court of Appeals Judge David W Board of Directors. When asked about Dyer on the Fifth Circuit and in 1975 her feelings for Duke and receiving the to Chief Justice Warren E. Burger. Dara DeHaven '80 Honored with award, she remarked, "Duke has been a He then practiced law as a litigator in Charles A. Dukes Award continuing source of friendships, learn Los Angeles and Washington, DC, The Charles A. Dukes Award, ing and professional development for becoming a partner with the firm of named for the late Charles A. Dukes, almost 25 years. Volunteering gives me Gibson, Dunn & Crutcher. a 1929 graduate of Duke University an opportunity to give back to Duke." In 1981, Starr became counselor and former director of Alumni Affairs, to United States Attorney General is given annually to alumni who have Kenneth Starr '73 Receives William French Smith, a position he gone "above and beyond" the cali of Charles S. Murphy Award held until he was appointed to the duty in volunteer leadership roles. The Kenneth W. Starr '73 received the United States Court of Appeals for the recipients of the award are chosen by Charles S. Murphy Award at the LAA District of Columbia in 1983 by Presi the Awards and Recognition Commit Friday night dinner. This award is dent Reagan. Starr left the bench to tee of the Board of Directors of the presented annually by the Law School become the solicitor general of the Duke University General Alumni Alumni Association to an alumnus United States during the Bush adminis Association. of the School who, through public tration. As solicitor general, he argued Dara l. DeHaven '80, nominated service andlor dedication to education, 25 cases before the Supreme Court by the Law School to receive this has shown a devotion to the common involving a wide range of governmental award, was not able to be present to welfare reflecting ideals exemplified in regulatory and constitutional issues. accept the engraved plaque as a symbol the life and career of of Duke's appreciation of her service Charles S. Murphy. but was honored by LAA president Murphy was a 1931 Haley Fromholz for her volunteer graduate of Duke activities for the Law School. DeHaven University. He grad has served in a number of roles to the uated from Duke Law School over the years. She served Law School in on the Law Alumni Association Board 1934 and received of Directors for seven years, from an honorary LLD 1987-1994, during which she rotated from Duke in 1967. through the officer positions. She During his career, served as the immediate past president he held several posi for two terms, 1992-93 and 1993-94, tions in the Tru while the by-laws were being revised; man, Kennedy and president 1991-92; vice-president/pres Johnson adminis idem-elect 1990-91; and secretaryltrea trations. He was Kenneth Starr 73, left, receives Murphy Award from Haley Fromholz '67. surer 1989-90. She has been active in also a member of 66 DUKE LAir' MAGAZINE / WINTER 1995 Since leaving his position as Solicitor including serving as lead counsel in the President to the United Nations High General in 1993, Starr has joined the "one man, one vote" case of Baker v. Commissioner for Refugees in 1971-72 law firm of Kirkland and Ellis in Wash Carr, 369 U.S. 226 (1962). and as counsel to the Commission for ingron, DC. In August 1994 he was Rhyne showed his dedication to the Observance of the 25th Anniver appointed special prosecutor in the education by serving as a professor of sary of the United Nations in 1970-71. Whitewater investigation. (See p. 71). American government in the Graduate Russell Robinson graduated from School at American University and as a Duke Law School in 1956, where he First Charles S. Rhyne Awa rd professor of law at George Washington was editor-in-chief of the Duke Law Goes to Russell Robinson , II '56 University. He has also served on the Journal. He also attended Duke Uni The Duke Law Alumni Associa Board of Trustees of both Duke Univer versity as an undergraduate. He began tion (LAA) has established the Charles sity and George Washington University. practicing in Charlotte in 1956. In S. Rhyne Award to honor alumni in Rhyne served the organized bar 1960 he helped form the law firm private practice who have made signi through his participation and leader which is now Robinson, Bradshaw & ficant contributions to public service. ship in a variety of legal organizations. Hinson, where he specializes in corpo This award will be presented annually In addition to membership on and rate and securities law and litigation. "to an alumnus or alumna of Duke chairmanship of several sections and The LAA committee which recom Law School whose career as a practic committees of the American Bar Asso mended Robinson as the first recipient ing attorney exemplifies the highest ciation (ABA) and committees of the of the Rhyne Award did so because standards of professional ability and ABA House of Delegates, he served as they thought he was the exemplar of personal integrity and who, in addi president of the American Bar Asso what they wanted the award to repre tion, has made a significant contri ciation in 1957-58. He had earlier sent. Robinson's professional ability and bution pro bono publico in education, served as chairman of the ABA House personal integrity are well known. As professional affairs, public service of Delegates. He was also president of was noted when he received the Judge or community activities. Russel! M. the Bar Association of the District of John J. Parker Award in 1993, the Robinson , I! '56 is the first recipient Columbia. He is a life member and highest honor bestowed by the North of the new alumni award. director of the American Judicature Carolina Bar Association: "CoUeagues The award was named after Society, a fellow of the American Col say Robinson represents the best the Cha rl es S_Rh yne '37, a senior partner lege of Trial Lawyers, and a life mem profession has to offer-a superb intel in the law firm of Rhyne & Rhyne ber of the Fellows of the American Bar lect, impeccable integrity, unassuming in Washington DC, who has been an Foundation for which he also served as modesty, and a willingness to share his active trial lawyer since 1937. He has chairman. knowledge and ability with others." represented chiefly states, cities and Rhyne served as counsel to a num Robinson was instrumental in counties in cases in federal and state ber of federal departments and agencies drafting the original North Carolina courts throughout the United States, including the Federal Commission of Business Corporation Act in the 1950s Judicial and Con and served as chairman of the Business gressional Salaries; Corporation Act Drafting Committee the Office of Civil of the NC General Statutes Commis ian Defense; the sion from 1968-73 and from 1985-91. National Defense He authored Robinson on North Caro Advisory Commis lina Corporation Law, which is so well sion; and the Com known among North Carolina lawyers mission on Presi that it is often referred to as "one's copy dent Kennedy's of Robinson." He has served as a mem Assassination. In ber of the Board of Governors of the addition, he was North Carolina Bar Association and its special legal consul Executive Committee. He has been the tant to the Presi president of the 26th Judicial District dent of the United Bar Association and rwice served as a States in 1959-60. director of Legal Services of the South He also served as ern Piedmont. He is a member of the the personal repre- American Law Institute and a fellow Russell Robinson '56, left, with Charles Rhyne '37. sentative of the of the American Bar Foundation. He VOLUME 13, NO.1 67 has been devoted to a number of edu cational institutions. Off-campus alumni events held to date in 1994-95 include: Robinson has been a member of EVENTS FACULTY HOST LOCAL HOST the Board of Trustees for the University CALIFORNIA Orange County William Reppy Randall Erickson 71 of North Carolina at Charlotte since Los Angeles William Reppy Phil Sotel '62 1987 and has served as its chairman San Francisco William Reppy Robert Pringle '69 since 1989. He joined the Duke Law LOUISIANA New Orleans Evelyn Pursley School Board of Visitors in 1983 and American Bar Association Reception served on the Johnson C. Smith Uni Thomas Rowe Association of American Law Schools Breakfast versity Board of Visitors from 1978-84 MINNESOTA Minneapolis Laura Underkuffler John Kirby '68 and as its chairman from 1984-86. He has served as counsel for the John MISSOURI Kansas City Thomas Rowe John Black 73 Motley Morehead Foundation since NORTH CAROLINA Durham/Chapel Hill Thomas Metzloff James Maxwell '66 Charlotte William Van Alstyne Clarence Walker '55 1965 and has served as a trustee for Greensboro Robinson Everett Gary Beaver '82 both the Woodberry Forest School and Wi nston-Salem Robinson Everett William Blancato '83 the Charlotte Country Day Schoo!. WASHINGTON Seattle Sara Beale Michele Sales '81 Robinson has also found the time EUROPE Brussels, Belgium Judy Horowitz Paul Tulcinsky '86 to devote to many civic and commu Cully, Switzerland Pamela Gann Olivier Peclard '86 nity organizations. In 1987, he became Zurich , Switzerland Pamela Gann Stephan Blattler '90 a trustee to the Duke Endowment and HONG KONG Judy Horowitz and Richard Allen '66 has chaired the Hospital and Child Pamela Gann Care Divisions since 1990. He has been TAIWAN Taipei Judy &Don Horowitz Amy Chin '91 very active in the United Way of Cen Amy Chua ua! Carolinas, serving in many capa cities, including president, general cam-paign chair, member of the Board Public Service Responsibility. The firm '78, Winter Park, Florida; Karen Jackson of Directors and the Executive Com was honored for its extensive work in a '78, Philadelphia, Pennsylvania; Bruce mittee, and Policy Committee chair landmark class-action lawsuit charging Baber '79, Atlanta, Georgia; Michele man. the federal government wrongfully Sales '81, Seattle, Washington; Helen Robinson has also been active denied Social Security disability bene Nelson Grant '84, Columbia, South in numerous other organizations and fits to thousands of Norm Carolinians. Carolina; Porter Durham '85, Chatta community projects. He has served as The firm contributed over 3,300 houts nooga, Tennessee; and Brent Clinkscale president and a director for the Char of work to the lawsuit, which went to '86, Greenville, South Carolina. laue Speech and Hearing Center, the US Supreme Court twice. John During the Law Alumni Asso the Florence Crittendon Home and Wester '72, who lead the firm's team in ciation meeting, president Haley G. the Wing Haven Foundation and the case says, ''At every step of the way Fromholz '67 thanked immediate past as a director for the YMCA, Junior in this litigation, Russell has encour president David G. Klaber for his out Achievement of Charlotte, the Char aged each of us on the firm's team who standing service, presenting him with lotte Chamber of Commerce, Good have taken the case through the courts. an engraved gavel and stand to com will Industries of the Southern Pied That is characteristic of him. This is a memorate his service as president from mont and the Presbyterian Hospital man whose public spirit looms large." 1992 to 1994. Klaber called the gavel Foundation. "a cherished gift that serves as a daily Russell Robinson's devotion to LAA Board of Directors reminder of my friends in the Law public service is also instilled through New Members and Officers Alumni Association, in the Law School out the law firm he helped to establish. The Board of Directors welcomed and the Class of 1969." Robinson, Bradshaw & Hinson re me new members recommended by Klaber, a partner at Kirkpatrick & ceived the first Pro Bono Service Award its nominating committee at the fall Lockhart in Pittsburgh, Pennsylvania, from the North Carolina Bar Associ meeting in October 1994. The new joined the Law Alumni Association ation and the firm also received the members are: Phil Sotel '62, Pasadena, Board of Directors in 1989-90. He American Bar Association's first Pro California; Barrington Branch '66, has chaired both standing committees Bono Publico Award presented by Atlanta, Georgia; Michael Pearlman '70, of the Board (Awards and Nomina the Standing Committee on Lawyers' Rochester, New York; Pamela Peters tions) and the ad hoc committee on 68 DUKE LAW MAGAZINE / WINTER 1995 Communications and me Education Local Alumni Committee which explored and recom Associations Upcoming Events mended faculty programming for Law and Events Alumni Weekend as well as reviewing Expand Globally May 13,1995 Law School Hooding Ceremony and student/alumni programming. In The local law Graduation Reception 1992-93 he drafted revised by-laws for alumni associations May 14, 1995 University Commencement the Association which streamlined and and me events mey August 7, 1995 American Bar Association Reception clarified operating procedures, agreeing sponsor help to Chicago to stay on an extra year as president to maintain a sense October 12, 1995 Alumni Seminar implement the revised officer rotation of community and October 13-14, 1995 Law Alumni Weekend schedule. identity with me 1945, 1950, 1955,1960,1965 Klaber also helped organize me Law School and 1970,1975, 1980, 1985, 1990 Pittsburgh local alumni association in among our alumni. 1987 and served as its first president. The Law Alumni Relations and Dean Gann and Associate Dean Horo He received me University's Charles A. Development Office sends Dean Gann witz, traveling in Asia to forge and Dukes Award in 1991 for his alumni or omer faculty representatives to share strengrhen ties for me Law School, rep service to me Law School and currently information about the state of the Law resented me Law School. Dean Gann serves on the Law School Board of School at mese off-campus alumni announced and discllssed wim alumni Visitors. events throughout me year. the new Asia-America Institute in Klaber finds me Association in As our alumni spread around me Transnational Law, which will be co good hands under Fromholz. "The globe, me Law Alumni Association sponsored by Duke Law School and Law Alumni Association is particularly now recognizes six international asso me University of Hong Kong Law blessed to have newly-appointed Judge ciations and hopes to see this number Faculty in Hong Kong beginning in Fromholz at me helm. His judicial continue to grow. Though the Law July 1995. temperament and wisdom are well School cannot send a representative Wim the help of Stephan Blattler known to me members of the Asso to every international association every '90 and Olivier Peclard '86, Dean Gann ciation and are bested only by his year, it sponsors an event each year for and Ptofessor William Van Alstyne dedication to me Law School. Haley's all alumni in Europe in conjunction met with alumni over dinner in Cully enmusiasm for Duke Law School and with me Transnational Institute now in and Zurich during meir vacation trip its graduates have helped to give me Brussels, Belgium and holds events in to Switzerland last August. In addition Law School a major presence on me omer cOllntries whenever faculty and to bringing news from the Law School, West Coast." administrators are traveling and work mey enjoyed learning about more Fromholz was appointed to me ing mere. about me careers of the alumni-and California Superior Court, Los Angeles This year Judy Horowitz, asso about me best hiking spots in the Alps. County this fall. Before mat he was a ciate dean of international studies, and In December, Dean Horowitz and litigation partner at Morrison Foerster's alumnus Paul Tulcinsky '86, hosted a new faculty member Amy Chua visited Los Angeles office. He joined me LAA reception and dinner at me Tulcinsky Taiwan and saw several alumni at their Board in 1989-90. He has served on family home in Brussels, Belgium in law and government offices. Wim me and chaired bom standing committees July. Students and faculty participating help of Amy Chin LLM '91 , a Duke Uni (Awards and Nominations). Because of in me summer program, along with versity alumni party was held in Taipei; the by-laws revision in 1993, he served alumni living in Europe, attended the approximately 30 Duke University an additional year as vice-president and dinner. The event provided an oppor alumni, nine of whom were Law School merefore served as chair of me standing tunity for interaction among alumni alumni, attended. Professor Donald committees for two years. While sec from many different countries and a Horowitz and Jed Rubenfeld, a visiting retary-treasurer he chaired me ad hoc chance for them to greet Law School professor at me Law School, also were committee to review me LAA treasury faculty teaching at the Institute and to in attendance. policies. He has chaired me Education meet current Duke Law students. As the Law School becomes Committee for two years, and in 1993- Richard M. Allen '66 hosted a ever more international such alumni 94 he served on a committee to review dinner in Hong Kong for Law School exchanges will become more frequent the LAA matching program for me alumni in mid-October at which and more beneficial to all. Student Funded Fellowship. VOLUME 13. NO. 1 69 Professional News '37 Richard W. Kiefer is senior ,5 3 =~k H. Chambers has joined ,L4 Charles A. Powell , a parmer partner with the firm of o in the Birmingham, Alabama Hooper, Kiefer and Cornell in Balti Jacksonville, based firm of Powell & Frederick, has more, Maryland. Florida office of been named chairman of the Section Foley & Lardner of Labor and Employment Law of '39 John E. Hoffman now practices as an of counsel the American Bar Association. He is wi th the firm of Hoffman member. He a founding member of the American Thompson Skekloff Rogers & practices in the Council of Employment Lawyers and McNagny in Fort Wayne, Indiana. areas of corpo was an editor of both the second and rate, real estate, third editions of THE DEVELOPING Jack H. Chambers '53 ,/.7 Matthew S. (Sandy) Rae , Jr. and securities LABOR LAw, the standard treatise on ""± has been elected treasurer of law. the National Labor Relations Act. the Chancery Club, a Los Angeles peer selection legal society. He has also been '59 John C. Russell has joined the ,L5 Peter B. Archie has been elected vice-president of the Southern New York City firm of Kroll U elected senior vice president/ California Phi Beta Kappa Association. & Tract as a partner, specializing in law of OESI Power Corporation in mergers and acquisitions, securities Portland, Oregon. OESI acquires, ,/.8 John M. Turner is a full-time regulation, corporate restructuring, develops, operates and sells interests in ""± mediator and arbitrator in partnerships, formation of oil and gas geothermal power projects in the west Coral Gables, Florida. partnerships and joint ventures, nego ern United States, Alaska and Hawaii. tiation and structuring of acquisitions C.N. Revelos, professor oflaw at the ,/.9 Charles F. Blanchard has been and divestitures. Detroit College of Law, is on sabbatical ""± selected as the 1994 recipient leave for 1994-95 to work on the 4th of the Joseph Branch Professionalism ,L2 Vincent l. Sgrosso retired as volume of MICHIGAN PRACTICE SERIES Award of the Wake County, North o vice president and general -BUSINESS AsSOCIATIONS, and on a Carolina Bar Association. T he award counsel of BellSouth Corporation in casebook on chapter 11 bankruptcy is presented annually to the practicing Atlanta, Georgia on December 31, reorganizations. attorney in Wake County who "best 1994. He will remain in Atlanta doing exhibits the qualities of professional arbitration and mediation work. ,L6 David B. Blanco, an attorney ism." Blanchard is a senior partner in o with House & Blanco in the Raleigh firm of Blanchard, Twiggs, ,L3 Glenn E. Ketner of Salisbury, Winston-Salem, North Carolina, has Abrams and Strickland. o North Carolina, has been been named chairman of the local appointed by Governor Jim Hunt as a board of directors of Southern National '51 James F. Perry retired on trustee of Rowan-Cabarrus Commun Bank. January 1, 1994 as vice presi ity College. James A. Courter has joined the Wash dent of the corporate law department Gerald T. Wetherington, chief judge ington, DC firm of Verner, Liipfert, at State Farm Mutual Automobile of the circuit court in Dade County, Bernhard, McPherson and Hand, Insurance Company in Bloomington, Florida, is in residence this semester at where he is active in the firm's legis Illinois. Duke Law School teaching a seminar lative and federal affairs practice. on lawyers in the criminal setting and Anthony S. Harrington has been serving as acting president of the Pri appointed chairman of the President's vate Adjudication Center. Intelligence Oversight Board, of which he has previously been a member. He is a partner in the Washington, DC office of Hogan & Hartson. 70 DUKE LAW MAGAZINE / WINTER 1995 Womble Receives 50-Year Award William F. Womble '39 received by the House of Delegates in 1990. He the 50- Year Award from The Fellows of the served as North Carolina chair of The American Bar Foundation during their Fellows from 1983 through 1988. 1995 Annual Meeting in February in An important aspect of Bill Womble's Miami, Florida. The award is given to ''a service to the organized bar has been his lawyer who, during more than 50 years of commitment to the financial support of, practice, has adhered to the highest prin and fund raising for, worthy bar causes. In ciples and traditions of the legal profes I 1986-88 he chaired the highly success sion and of service to the public. " Below ful Founders Campaign that established are excepts from the text prepared by a permanent endowment for the North Clarence (Ace) Walker '55 to an Carolina Bar Foundation. In 1986-92 he nounce the Award: served as amember of the ABA's Resource Development Council. He is a Life Patron There is atendency to think retrospec Fellow of the American Bar Foundation, a tively when describing the recipient of an member of the President's Club of the award that is available only to those who William F Womble '39 (left) received the 50-Year Award of the Fellows of the Fund for Justice and Education , and a have practiced law for half a century or American Bar Foundation at their 39th Annual Meeting in Miami. The award major donor to the North Carolina Bar more; but this is not the way one normally was presented by Herbert D. Sledd (center), vice-chair of the Fellows. Association Endowment. thinks about William Fletcher Womble. Bill Remarkably, Bill Womble's devotion of Womble is currently busy serving as chair this tremendous time and energy to his of the Senior Lawyers Division of the North Carolina located in Winston-Salem, Charlotte, Raleigh and practice and the legal profession has not come at the Bar Association. He has recently taken over as chair Atlanta. He has been a major force in this growth, expense of his commitments to church , community of the Affiliate Outreach Committee of the American having served as managing partner of the firm for or alma mater. At Centenary United Methodist Bar Association's Senior Lawyers Division. One has six years and more recently as consulting partner. Church in Winston-Salem, he has served as chair the feeling that other leadership responsibilities are Bill's service in the organized bar began with the of the Official Board and chai r of the Board of yet to seek him out, and that he will accept them , Junior Bar Conference in the late 1940s, and he Trustees, and in 1975 was one of the organizers of always saving time to enjoy his [family]. It is the served as its Fourth Circuit representative to the the Triad United Methodist Home, where he has present and the future that engage Bill Womble's ABA in the early 1950s. He went on to become pres served as treasurer and president and continues to attention .. . ident of the Winston-Salem Junior Bar in 1954. He serve as a director. He was chair of the Forsyth Bill was the second of six children of Bunyan was active in the Forsyth County Bar, where he County United Way in 1948 and thereafter was the Snipes Womble, a lawyer. He received his A.B. and served as president in 1962, and in the North Caro first president of the Experiment in Self-Reliance, a JD. degrees from Duke University and Duke Law lina Bar ASSOCiation , where he served in avariety of local anti-poverty program. He was a founder and School, whereupon he took a job with his father's leadership positions. As its president in 1966-67, first president of the Association for the Handi law firm as an associate in 1939. He met and mar he was instrumental in desegregating the member capped . He has served as president of the Winston ried Jane Payne Gilbert of New York in 1941 and ship of the North Carolina Bar Association. Salem Chamber of Commerce and president of soon thereafter entered the Army Air Force where he Through his activities in the Junior Bar Con the Winston-Salem Rotary Club, as a trustee of served throughout World War II , being released with ference and the North Carolina Bar Association, Bill Winston-Salem State University and as a trustee the rank of major at the end of the war in 1945. He Womble became active in the National Conference (including chair of its Board) of High Point College was sent overseas in September 1943 for service of Bar Presidents and the American Bar Association. Lawyers would not all agree on the essential with the 12th and 15th Air Force Service Commands He served in the ABA House of Delegates for nine components of professionalism, but we would agree in North Africa, Corsica, and Italy. years , on the ABA Board of Governors for three that we know it when we see it. We all see it unmis In 1946 Womble returned to his practice with years , on the National Conference of Bar Presidents takably in Bill Womble. And we understand why he Manly, Hendren & Womble (now Womble Carlyle Executive Council for four years and on the ABA was chosen in 1984 to receive the North Carolina Sandridge & Rice) and became a partner in 1947. Standing Committee on Ethics and Professional Bar Foundation's prestigious John J Parker Award He developed an active practice in litigation, real Responsibility for six years His contributions in for "conspicuous service to the cause of jurispru estate, probate and trust, banking, insurance and these pOSitions was always active and important. He dence in North Carolina," and why he now joins the corporate law and served as counsel to the City of served as chair of the Operations Committee of the illustrious roster of lawyers chosen to receive The Winston-Salem and the local school board. Over the ABA Board of Governors and on its Executive Fellows Fifty-Year Award for adhering to "the high 55 years since Bill joined the firm in 1939, Womble Committee, and as chair of the Ethics Committee's est principles and traditions of the legal profession Carlyle Sandridge & Rice has grown from five Judicial Code Subcommittee, which produced the and of service to the public." lawyers in Winston-Salem to more than 180 lawyers Model Code of Judicial Conduct that was adopted VOLUME 13, NO.1 71 ,L7 Haley J. Fromholz is now a nell, Brostrom, Stehlik & Thayer in U judge of the Superior Court Grand Island, Nebraska. Duke Presence on of the State of California for the Rosemary KiUrell is a student in the County of Los Angeles, a trial court graduate program at the University of Rules Committee of general jurisdiction. Georgia, pursuing a masters degree in The chair of the federal Civil Rules Advisory Peter K. Lathrop has been named vice social work. She continues as staff Committee, Judge Patrick Higginbotham, has president, director of taxes at Alexander attorney with the Prosecuting Attor noted the danger of a Duke takeover of that & Alexander Services, Inc. in New York ney's Council of Georgia, specializing committee! At a recent meeting, Justice Chris City, a global organization of profes in capital prosecutions and electronic tine M. Durham '71 was added to the 13- sional advisers providing risk manage surveillance. member group as the representative of the state ment, insurance brokerage and human O. Randolph Rollins has been appointed judiciary. She joins Frank W. Hunger '65 who serves on the committee in his capacity as resource management consulting executive vice president and general assistant attorney general of the Civil Division services from offices in more than 80 counsel for Tultex Corporation, an countries. of the Justice Department, and Professor apparel manufacturer and marketer in Thomas D. Rowe , Jr. , who is the reporter Martinsville, Virginia. for the committee. Professor Rowe replaced Carl F. Bianchi recently retired ,L8 Edward R. Leydon, vice president/law Professor Paul D. Ca rrington , who was the as administrative director of o for Rhone-Poulenc Rorer, has been comm ittee's reporter for many years. the Idaho courts, and is now the direc elected a director of the World Affairs tor of legislative services for the Idaho Council of Philadelphia, Pennsylvania. State Legislature, directing legislative Charles B. Neeley, Jr. , an research, bill drafting, state budget and '~o Robert M. Hart is commuting /' attorney with Maupin, Taylor, appropriations, and financial audits. ,L9 o to Duke Law School this Ellis & Adams in Raleigh, North John R. Brownell has been nominated semester from his law practice in New Carolina, has been awarded the Dis to the 1994 class of fellows of the York City to teach the securities regu tinguished Eagle Scout Award by the Nebraska State Bar Foundation. He is lation II seminar. National Boy Scouts of America. The the senior partner of Lauritsen, Brow- honor goes to former Eagle Scouts who have achieved preeminence in their careers and community. Starr Named Independent Counsel '71 Gail Levin Richmond, a mem- ber of the law faculty of Nova In early August 1994, Kenneth W. Starr '73 University in Ft. Lauderdale, Florida, was named the independent counsel to investigate has been elected to a three-year term the Whitewater inquiry. Starr was appointed by a on the Law School Admissions Council three-member Special Division of the United States Board of Trustees. Court of Appeals to replace Robert Fiske as inde pendent counsel. Fiske had been chosen by Attor ney General Janet Reno, and the judicial panel ruled '72 David W. Hardee has been that the independent-counsel law was meant to appointed president and avoid having an administration investigate itself. As co-chief executive officer of Kleer Vu independent counsel , Starr has the authority to Industries, Inc., a manufacturer of reopen areas of the investigation already reviewed photographic albums, storage, and by Fiske. protective devices for industrial, com Starr is a partner in the Washington , DC firm of mercial, and family uses, located in Kirkland &Ellis. He was solicitor general during the Compton, California. He will also Bush Administration and is a former circuit judge join the company's Board of Directors. on the United States Court of Appeals for the Hardee continues as a general partner District of Columbia. Starr is a life member of the of Hardee Capital Partners, an invest Law School's Board of Visitors. ment partnership, in Santa Monica. Starr acknowledges that the Whitewater inves any form ." At Law Alumni Weekend 1994, Starr tigation will be difficult, but, he says, "I don't say no received the Charles S. Murphy Award for public Amos T. Mills, III was recently elected to public service. I am open and receptive to it in service (see p. 65). to a two-year term as president of the Ocean City Beach Citizens' Council in 72 DUKE LAW MAGAZINE / WINTER North Topsail Beach, North Carolina. a partner in the Los Angeles, California partner of the Washington, DC office Over 100 families reside at Ocean office of Perkins Coie. of Paul, Hastings, Janofsky & Walker. City Beach, which was one of the first Ira Sandron, an immigration judge in l. Keith Hughes has joined the firm of ocean-front beaches established for Miami, Florida, was selected to serve Hopkins & Sutter, as partner and head Blacks in North Carolina. as an acting member of the Board of of the firm's corporate transactions prac John R. Wester, a partner with Robin Immigration Appeals in Falls Church, tice group in the Dallas, Texas office. son, Bradshaw & Hinson in Charlotte, Virginia for the month of April 1994. Stephen P. Kieffer has earned his mas North Carolina, He spoke on a program on courtroom ter's degree in physical education at San has been elected security at the ABA Annual Meeting Diego State University, where he was a fellow of the in August. a teaching assistant and assistant rugby American College Mary Ann Tally, public defender in coach. He is pursuing a PhD in human of Trial Lawyers. Fayetteville, North Carolina, has been movement (biomechanics) at the Uni He practices appointed to the National Criminal versity of Western Australia in Perth. in the areas of Justice Commission. Robert C. Weber has been inducted into employment Raymond l. Vasser, a professor of law the American College of Trial Lawyers, discrimination, John R. Wester 72 at the University of Tulsa College of and is president-elect of the Cleveland, federal and state Law, recently received the university's Ohio Bar Association. He is a partner constitutional law, and commercial and most prestigious teaching award, the with Jones, Day, Reavis & Pogue, and securities law. "Outstanding Teacher Award." chair of the firm's products liability and Frances A. Zwenig is now vice president regulation section. '73 Daniel T. Blue , Jr. has had an endowed chair established and counsel for the US-Vietnam Trade C. Michael Wilson announces the for in his name at North Carolina Central Council, which strives to improve trade mation of his firm in Charlotte, North University in Durham. The chair, and other relations between the United Carolina, where his practice is divided financed by the CD. Spangler Foun States and Vietnam. between corporate/business represen dation, will be a professorship in the tation and personal injury/wrongful political science department. Blue, who '75 Jon P. Bachelder has been death. recently stepped down as speaker of the elected chair of the Michigan North Carolina House of Representa State Service Council of the American '77 Michael A. Ellis has been elected to the Board ofTrus- tives, graduated from NCCU in 1970. Red Cross. The Council consists of 15 members who are representative of the tees of the Jewish Education Center of Marsha Taylor Gepford has opened a five geographic districts in Michigan. Cleveland, Ohio, which plans curricula home-based solo law practice in Madi He is a partner in the firm of Warner, for Jewish education for children and son, New Jersey, dealing primarily in Norcross & Judd in Grand Rapids, adults. He is a principal with the firm the area of real estate. where he practices employment and of Kahn, Kleinman, Yanowitz &Arn Gary W. libby, a solo practitioner in environmental law. son where he practices in the corporate Portland, Maine, was recently elected a Albert A. Skwiertz , Jr. has been ap and securities area; he is also a member trustee of the Portland Water District. pointed general counsel of Alexander of the firm's technology group. Ellis & Alexander Services, Inc. of New is also president of the Cleveland Area Ronald M. Marquette has '7/' York City, an organization of profes Development Finance Corporation, / Lf become a special deputy sional advisers providing risk manage a division of the Greater Cleveland attorney general in the Special Litiga ment, insurance brokerage and human Growth Association. tion Division of the North Carolina resource management consulting Ember Reichgott Department of Justice. services from offices in more than Junge has been Thomas E. Mclain has been appointed 80 countries. elected Senate by President Clinton to serve a three assistant majority year term as a commissioner on both '7.6 Ralph B. Everett has been leader in Min the Japan-United States Friendship / ~ appointed by President Clin- nesota. She is the Commission and on the United States ton to the President's Board of Advisors first woman to Japan Cultural Commission. He has on Historically Black Colleges and serve in the sec been appointed as financial advisor to Universities. Everett is the managing ond-ranking Ember Reichg ott Junge 77 the Friendship Commission. Mclain is leadership post VOLUME 13 , NO. 7 3 in the Senate; she is serving her fourth James E. Williams, Jr. is the chief pub '82 James E. Bauman has joined term. Reichgott Junge practices law lic defender of Chatham and Orange the firm of Mallery & Zim part-time, and is chair of Success by counties in North Carolina. merman in Milwaukee, Wisconsin. 6 Northwest, an early childhood Rhonda Reid Winston has been con James B. Hawkins has been named initiative. firmed as a judge in the District of president of the public communications Gary E. Meringer has joined the New Columbia Superior Court. group of BellSouth Telecommunica Orleans, Louisiana office of Phelps tions, Inc., in Atlanta, Georgia. Dunbar, where he practices in the areas '80 Clifford B. Levine has been Richard R. Hofstetter has become a of securities, corporate and general appointed vice chairman of partner in the Indianapolis, Indiana business law. the Pittsburgh, Pennsylvania Planning law firm of Mantel, Cohen, Garelick, Susan Freya Olive has been reappointed Commission and named a member Reiswerg & Fishman. of Pittsburgh's Zoning Board. He prac to the North Carolina General Statutes Vincent J. Marriott, '" has become a tices as a partner with Thorp, Reed & Commission and has been named a partner in the Armstrong, specializing in commercial, member of the North Carolina Board firm of Ballard administrative, and land use litigation. of Law Examiners. She practices intel Spahr Andrews lectual property law with the firm of Marjorie S. Schultz announces the & Ingersoll in Olive & Olive in Durham. opening of the firm of Schultz & Philadel phia, Farner in Houston, Texas, specializing Pennsylvania. He '78 Christopher K. Kay, a partner in estate planning and probate with a is a member of with the Orlando, Florida special emphasis on charitable giving. the firm's litiga office of Foley & Lardner, has been Bruce P. Vann announces the formation tion department Vincent J. Marriott, III '82 named "board certified" in civil trial of the firm of Meyer & Vann in Los and concentrates law by the Florida Bar. Kay practices Angeles, California, specializing in in the areas of bankruptcy and in the area of complex business and bankruptcy, corporate and litigation workouts. commercial litigation, and is vice matters, with a special emphasis on real I. Scott Sokul has been appointed vice president of the Florida Citrus Bowl. estate bankruptcy and entertainment president of governmental relations of Alan Mansfield has become a share financing. The Everidge Group, a governmental holder of the firm of Greenberg Traurig, affairs, political, and public relations resident in the firm's New York City '81 John J. Coleman, "I has firm based in Orlando, Florida. He suc office. He concentrates in complex civil authored a third book, cessfully managed the re-election cam and white-collar criminal litigation. He ALABAMA WORKERS' COMPENSATION paign of US representative John Spratt is a mediator to the United States Dis PRACTICE (Guide Publishing Co.). (D-SC) on behalf of the Democratic trict Court for the Southern District Proceeds from the book will profit Congressional Campaign Committee. of New York, and an arbitrator for the Kid's Chance Scholarship, a scholarship T. Richard Travis has joined the corpo National Association of Securities for the children of persons killed or rate and tax section of the firm of Dealers, Inc. totally disabled on the job. Coleman is Manier, Herod, Hollabaugh & Smith a partner in the Birmingham, Alabama in Nashville, Tennessee, where he prac John P. Higgins has joined the office of Balch & Bingham, practicing '79 tices in the areas of trust tax, and estate St. Petersburg, Florida office management-side employment law. and business planning. of Carlton, Fields, Ward, Emmanuel, Linda Cox Fornaciari announces the D. Reginald Whitt is in residence at Smith & Cutler as a shareholder. opening of her law office, specializing Duke Law School this semester, teach Denise l. Majette was unopposed in the in business transactions for emerging ing a course on religion and govern November election and retained her businesses in the Silicon Valley area of ment. Father Whitt is affiliated with seat as a judge on the State Court of California. the Domincan House of Studies in DeKalb County in Decatur, Georgia. J. Arthur Pope is the chief financial offi Washington, DC. Juliann Tenney was selected as the cer and treasurer of Variety Wholesalers, Richard C. Zeskind has been named in leader of the Group Study Exchange of Inc., a 500-store regional retail chain in house counsel of Eastern Savings Bank Rotary District 7710 for its five-week Raleigh, North Carolina. He recently in Baltimore, Maryland. tour of Australia in November-Decem served two terms in the North Carolina ber. She teaches for the Duke Univer House of Representatives. sity Nonprofit Management Program. 74 DUKE LAW MAGAZINE / WINTER 1995 '83 Gwen S. Anderson announces quality and government regulation. of 12 lawyers in New York to receive the formation of G.S. Ander Anderson is also of counsel to the firm the President's Pro Bono Service Award son & Associates in Denver, Colorado, of Grimshaw & Harring. from the New York State Bar Associa emphasizing real estate law, hotel Lisa E. Cleary, a partner with the New tion. She was honored for her work as and resort law, commercial litigation, York City office of Patterson, Belknap, chair of the Board of Directors of MYF business and commercial law, and air Webb & Tyler, has been selected as one Legal Services, Inc., an organization Improving International Labor Conditions "It strikes me as bizarre that more people are sen sitized to not buying tuna captured in nets than they are to not buying carpets, garments and other con sumer goods made with child labor, bonded labor, or by workers who have absolutely no rights ," states Terrence (Terry) Collingsworth '82, who is now trying to address this problem. ''There is presently no effective organization to represent workers , farmers and individuals in this new global order [which recently culminated in the ratification of the General Agreement on Trade and Tariffs (GAD)]. so I've made a first start by trying to advocate for workers and bring differing groups together to pursue mutual interests. " Based in Nepal, Collingsworth currently holds two positions: general counsel to the International Labor Rights Education and Research Fund (ILRERF) and country director for the Asian-American Free Labor Institute (AAFLI) programs in Bang ladesh , Cambodia and Nepal. Most of his work abroad is done for AAFLI , while his ILRERF duties involve both policy develop Terry Collingsworth '82 , left, with James Wyatt '82 and young Alexander Collingsworth. ment in Washington, DC and developing coalitions with worker and human rights groups to further the goal In Malaysia, Collingsworth was arrested for passage of this legislation, he stayed on in Nepal for of making the ILRERF the global organization which marching with workers protesting a US company AAFLI to develop the trade union movement under the will coordinate issues of common concern to workers. which had fired workers leading the effort to form a new law. Collingsworth works closely with individual gov union. Collingsworth was asked to leave the country. While in Nepal, Collingsworth says, "I noticed the ernments if they are willing to work with him. Cam "I did, but returned overland from Thailand to continue obvious and pervasive problem of child labor, partic· bodia and Nepal have requested his assistance as a assisting the workers in an advisory capacity." When ularly in the carpet factories, and got involved in pub consultant, while the Malaysian government, he says , a local newspaper quoted the Malaysian Minster of licizing the problem and advocating for the creation 01 harassed him and ultimately forced to him to leave Labor as saying that it was unfortunate that Collings schools and the enforcement of existing compulsory the country. worth had left the country since he would have been education laws. " In order to lead by example, AAFLI happy to discuss labor problems, Collingsworth called recently opened aschool for former chi Id workers, pro Developing Enforceable labor Standards the Minister and took him up on the offer. The two had viding food, lodging, clothes, and high quality educa· With ILRERF, Collingsworth is working to create a long debate in front of local media, but Collingsworth tion and vocational training. enforceable international labor standards. He wo rks says the televised version was heavily edited and "I In Bangladesh, where there has been a labor law with labor lawyers, trade unions and human rights appeared to be agreeing , with my silence, to the system since Bri tish co lonial times, the government groups to create a demand for a "social clause" in the Minister's statements. " has formed acommission to revise and modernize the GAD agreement to assure labor and environmental labor laws. Collingsworth has been invited by several standards and to provide necessary balance in the Improving Rights for Workers union leaders on the commission to advise them as to global economy. ILRERF is aWashington-based non AAFLI , an international institute of the AFL -CIO , necessary changes to improve labor standards. profit which studies labor conditions in specific coun has been conducting union development programs in He is also working with the founders and leaders tries, lobbies for improved global labor standards, and Asia for nearly 20 years. Col lingsworth fi rst got of the Bangladesh Independent Garment-Workers files test cases in all possible forums to advance involved with AAFLI in 1992 when he went to Nepal to Union (BIGU), which is organizing the one million enforcement of labor standards. draft the country's first Trade Union Act. Following female workers making garments for export to the US VOLUME 13, NO . 75 whose mission is to ensure mat poor Volunteer Laywer of the Year for 1994 John Randolph Prince, III has authored New Yorkers are not denied equal -the attorney "who has given me Where No Minds Meet: Imurance Policy access to justice because mey cannot most time to assist in attaining 'equal Interpretation and the Use ofDrafting afford a lawyer. access to justice' to the low income History, 18 VT. L. REv. 409 (Winter Seth Forman was selected by the Guam community." He practices with the law 1994). The article concerns issues aris Legal Services Corporation as Guam's offices of Keogh & Butler in Agana. ing in environmental and toxic tort insurance coverage disputes. Prince practices commercial litigation wim me firm of Anderson Greenfield & Dough erty in Philadelphia, Pennsylvania. Rebecca Davis Prince is associate coun and Europe. Bangladesh has recently become a gar was still fortunate and would never know true misery sel for me Crozer-Keystone Health ment manufacturing center due to extremely low or poverty. This set me free in that I left behind any System in Philadelphia, Pennsylvania. wages . "The average monthly salary for a garment desire to 'get rich' or self-evaluate based on material Robin Bernstein Taub announces me worker is $15, which is for over 70 hours per week. The possessions. " formation of me firm of Paradiso, conditions are nearly identical to the sweatshops in Upon his return from India, Collingsworth taught Dack & Taub, with offices in Bemesda, England and the US around the turn of the century," at the Cleveland-Marshall College of Law at Cleveland says Collingsworth. State University, then at Loyola Law School in Los Maryland; Vienna, Virginia; and In Cambodia, Collingsworth is working exclu Angeles. He spent a year as a professor-in-residence Washington, DC. sively on drafting a comprehensive labor code. "Due at the Equal Employment Opportunities Commission M. Edward Taylor has become corporate to Cambodia's unique and bloody history, many of the (EEOC) before joining with AAFLI and ILRERF. counsel for human resources ofUnivar present members of Pari iament spent the last 20 years Collingsworth's wife, Sufie Berger, is a photogra Corporation, a multi-national chemical in labor camps, in hiding, or living as political refugees pher. They live in Nepal with their son, Alexander, who distributor in Seattle, Washington. in other countries. Consequently, their lack of exper was born this past August. They recently hosted Duke tise required that a number of consultants be brought classmate James F. Wyatt III '82 and his wife Edna '84 Sol W. Bernstein has joined in. I was invited to do the labor code, working with the on their honeymoon. "It was fun for us to show Nepal me legal department of chair of the Parl iament's Labor Committee and the to them ," says Collingsworth. "Most people have National Westminster Bancorp in New never seen some of the things that are normal here: Minister of Labor. Drafting the code was the easy part," York City as vice president and counsel. says Collingsworth. "Since [these two politicians] are cows everywhere (to Hindus, cows are holy and are from two of the formerly warri ng parties, they have a free to walk the streets); children who are thrilled if you Ronald L. Claveloux is now deputy fierce hatred of each other, and now my job has spend a few minutes speaking English with them; general counsel of First Deposit Corpo become serving as an intermediary between them to mountains that are two or three times higher than any ration in San Francisco, California. get them to agree on a final draft law." thing in the US; and poverty and happiness on a Kurt W. Florian , Jr. has been elected Collingsworth feels that his experience at Duke has grand scale ." partner in the Chicago, Illinois office of Collingsworth's long-term goal is "to form aglobal made atremendous difference in his life. "I was trained Lord, Bissell & Brook, where he con to think and reason , not just to spit back theories , and organization that represents workers and indigenous centrates on corporate finance matters. this has served me well , especially now that I'm prac people to provide a balance to the already well-orga ticing in an area that did not exist when I was in nized multinational firms. I hope to be able to offer Briget M. Polichene has recently relo schooL " the equivalent of the 'Good Housekeeping Seal of cated to Indianapolis, where she is the After graduating from Duke, Collingsworth was an Approval' to products made under conditions that meet chief counsel to the Indiana Depart associate at Perkins Coie in Seattle, specializing in reasonable standards for rights for workers. The net ment of Insurance. labor law and litigation. "I often found , especially in work exists globally, but what is lacking is consumer employment cases , that the plaintiffs or individual awareness and funds. " He believes that progressive, '85 Christopher D. Mangum has employees were represented by very marginal lawyers, forward-looking companies can promote themselves been named a partner at while the employer had this huge law firm. I began to "by appealing to consumers who care about worker Alston & Bird in Atlanta, Georgia. feel like things were out of balance and I was on the rights and people. A trend is beginning to take hold Kenneth G. Mattern received an LLM wrong side. When I left the firm , it was to begin work where companies are doing this," notes Collingsworth. degree in environmental law from ing for employees, unions, etc." After leaving Perkins "Levi's, for example, has a voluntary 'Code of Ethics' George Washington University in Coie and before starting his next job, Collingsworth that pledges to only do business with contractors who spent four months traveling around India. "It really comply with the laws in their home countries. " Of his 1993. He is a major in me United changed my life. After seeing some of the poorest peo work, Collingsworth says: "I feel I have finally found a States Air Force, and is legal advisor ple in the world , and being invited to slums in Calcutta use for my legal and advocacy skills that allows me to to commanders and engineers at 23 and Bombay, I knew that I had no real problems. No make a unique contribution in the world. " installations and aircraft plants regard matter what else happened to me in life, I knew that I - Laura Ertel ing environmental compliance and cleanup programs. 76 DUKE LAW MAGAZINE / WINTER 1995 Providing Legal Support for Poland's Emerging Democracy "Don't come." change imposed on people. I choseto come to This two-word telegram from her mother the United States-I imposed that change on was received by Bozena Sarnecka-Crouch myself. The change came to them, and it was a '86 in 1980 as she prepared to return to her big challenge. native Poland after a six-month visit to the "[The Polish people] were against commu United States. "The news was not optimistic," nism, and they idealized capitalism. They did Sarnecka-Crouch explains. Russians were n't know any bad features of capitalism. Then planning to invade Poland, and those outside they found themselves without jobs, without the country were urged by friends and family money, without a possibility of support." She members to stay away. says life in Poland is still very difficult. "It's Sarnecka-Crouch, who has a JD from the extremely tense, extremely stressful, and very Warsaw University School of Law and worked unsure of the future for individuals." as an assistant professor of law in Poland, As a CEELIliaison, Sarnecka-Crouch had began making plans for her new life in America. the opportunity to make apositive impact on her She started her American legal education at native country. She served as a "needs asses Tulane, and then transferred to Duke in 1984 to sor," identifying how CEELI resources should pursue her JD degree. She fondly remembers be used in order to provide the best assistance her days at Duke Law School. "There was an to the Polish Parliament, government agencies openness to foreign students-it was like hav and law schools in the restructuring of the ing an extra family. I felt very protected," she Polish legal system during political and eco- recalls. "All the professors and the administra- Sozena Sarnecka-Crouch '86, left, with Supreme Court Justice nomic transition. "CEELI didn't provide any tors knew me by name, even those I didn't have Sandra Day O'Connor. thing unless Poland asked for our help," she classes with." ------explains. For example, "if they said they had Upon graduation from Duke in 1986, she clerked the second time in 13 years. The newly formed problems with money laundering, CEELI would for the US Bankruptcy Court of the Central District Central and East European Law Initiative (CEELI), a send appropriate attorneys and specialists to assist of California in Los Angeles, then worked for a labor project of the American Bar Association designed to them." law firm in L.A. Then, two years after her initial appli support the process of law reform in Eastern and Working with CEELI provided Sarnecka-Crouch cation, she received a job offer from the US Library Central European countries, was looking for a with a new outlook on her American colleagues. of Congress in Washington, D.C. to work as aPolish Polish liaison. CEELI's premise is that lasting eco "While working with CEELI, I really appreciated law specialist. "The job was made for me," she says. nomic and political reform is dependent upon a American lawyers. The people who came to Poland "It combined my experience in US and Polish law." functioning system of law and on adherence to the to provide free help were a special kind of people." While contemplating the offer, she spoke with rule of law. The pro bono service project makes US She met American law professors on sabbatical former Duke Law professor Kazimierz Grzybowski legal expertise available to emerging democracies, teaching in Polish law schools for $30 to $40 a (who died in 1993), a fellow Pole, who had worked utilizing a network of volunteer lawyers, judges and month. "They loved Poland. They enjoyed helping at the Library of Congress in asimilar position. "He law professors. CEELI recognizes that US expertise people understand American law in order to reform was so happy," she recalls. "He told me it would be and traditions offer only one approach for partici their own law." good for Poland if I got this job." Her decision made, pating countries to consider, and that they may pre At a meeting of the CEELI executive board and she moved back to the East Coast in 1988. fer to follow the example of other civil law countries. liaisons in Austria, Sarnecka-Crouch presented a At the Library of Congress, Sarnecka-Crouch Sarnecka-Crouch took a sabbatical leave from report on CEELI's progress in Poland. Among the researches and writes reports about legal issues the Library of Congress and returned to Warsaw, members of the CEELI Executive Board were Sandra concerning Polish and Russian law for the United Poland for 10 months. As only the third liaison in Day O'Connor, Supreme Court justice and Lloyd States Congress, other government offices, and the the CEELI project (the first two were in Bulgaria and Cutler, former White House counsel. "Imagine. I was judiciary. She has co-authored a range of compar Hungary), she joined the fledgling organization giving a speech and Justice O'Connor was taking ative law publications, including: "Immigration which now boasts over 100 American participants notes!" Laws Concerning Admission and Resettlement of in many Central and Eastern European countries. Sarnecka-Crouch is philosophical about her Refuges," "Campaign Financing of National Elec Her return to Poland "was haunting," she recalls, impact on Poland's development through her CEELI tions in Foreign Countries," "Legislative Ethics in "coming back to find that things were totally gone experience. "You cannot change the total reality," Democratic Countries of the World," and "Firearms from my life. I met people I hadn't seen in 13 years she says. "But by doing your little tiny brick for the Regulations in Various Foreign Countries." -former co-workers who are now high level offi building, you can have an impact." A new opportunity arose in 1992, one which cials. It's very different because there is democracy - Laura Ertel would bring her back to her native Poland for only and freedom now But it's also a total upside-down VOLUME 13, NO . 1 77 William D. Morris is a partner in the John D. Methfessel , Jr. is a partner in has also been appointed co-chair of Houston, Texas office of Akin, Gump, the firm of Methfessel & Werbel in the Subcommittee on African Trade Strauss, Hauer & Feld, working in the Rahway, New Jersey, where he is a trial and Investment of the ABA Section commercial finance area. attorney specializing in insurance on International Law and Practice. Marshall D. Orson has been promoted defense matters. Kelley A. Grady is a litigation associate to vice president/business affairs at Tur Susan Canter Reisner has been elected at Reed Smith Shaw & McClay in ner Home Entertainment in Atlanta, to partnership in the Louisville, Ken Philadelphia, Pennsylvania. Georgia, the Turner division responsi tucky firm of Stites & Harbison, where Michael P. Scharf, a professor at the ble for book publishing, home video, she practices in the employee benefits New England School of Law in Boston, interactive products, licensing and mer area. Massachusetts, has published Report of chandising, educational services and the ABA Task Force on Teaching Inter international theatrical distribution. '87 Mary R. Boland is pursuing a nationaL CriminaL Law, 5 CRIM. L. He also continues as vice president/ PhD degree in English at the FORUM 91 (1994), and co-authored business affairs ofTBJ Productions, the University of Rochester, where she also AN INSIDER'S GUIDE TO THE INTER division which handles documentary teaches. NATIONAL CRIMINAL TRIBUNAL FOR production. He has been elected chair Thomas A. Gauza is now corporate THE FORMER YUGOSLAVIA: A Docu man of APPLE Corps, an independent counsel of Baxter International, Inc. MENTARY HISTORY & ANALYSIS (1994). advisory and oversight group to the in Deerfield, Illinois. Michael C. Sholtz has been named the Atlanta public schools. Robert E. Harrington has been elected to associate director of planned giving for Ann M. Riposanu has been promoted to partnership in the firm of Stone, Pig Duke University. deputy general counsel at K-III Com man, Walther, Wittmann & Hutchin Holly E. Stroud is practicing with Jones, munications Corporation in New York son in New Orleans, Louisiana. Day, Reavis & Pogue in Dallas, Texas. City, a diversified communications Marc Israel announces the opening of company focused on education, infor Winston J. Zhao is working for Clifford his law practice in New York City, spe mation and magazine publishing. Chance in Hong Kong, advising foreign cializing in litigation, landlord/tenant clients doing business with the People's Loren A. Weil has become a partner matters, banking and foreclosure Republic of China. with the Chicago, illinois office of actions, and real estate transactions. Winston & Strawn. Amy K. Johnson is an assistant staff '89 Sean Callinicos has become judge advocate for the United States the chief counsel to the Clean Susan Bysiewicz has been '86 Air Force in Washington, DC. Air, Wetlands, appointed chair of the Con Private Property necticut General Assembly's Govern Timothy R. Johnson has joined the part and Nuclear ment Administration and Elections time faculty at California State Univer Regulation Sub Committee; she is serving her second sity-Hayward, where he will teach committee of term. employment relations. He continues as manager of labor relations for Southern the United States Robe rt T. Danforth is an associate at Pacific Lines in San Francisco. Senate, chaired McGuire, Woods, Battle & Boothe by Senator Stephanie A. Lucie has become assistant in Charlottesville, Virginia, where he Lauch Faircloth general counsel of Trans co Energy Sean Callinicos '89 practices in the area of estate planning (R-NC). and administration. He also teaches a Company in Houston, Texas. Sharon Carr Harrington has been named class on the same subject at the Univer Elizabeth Miller Roesel is an associate in the director of the Office of Environ sity of Virginia School of Law. the intellectual property department of mental Affairs for the City of New Kirkland & Ellis in Washington, DC. Brett D. Fallon has been elected to a Orleans, Louisiana. two-year term on the executive council John E. Pelletier has joined Funds D is of the Young Lawyers' Division of the Kodwo P. Ghartey-Tagoe has '88 tributor, Inc. in Boston, Massachusetts, American Bar Association, representing joined the Richmond, Vir as senior vice president and general Delaware and the District of Columbia. ginia office of Mays & Valentine, work counsel, and he has also been elected He is an associate in the Wilmington, ing primarily in the areas of energy, corporate secretary of the Dreyfus Delaware office of Smith, Katzenstein communications, and insurance regu Funds. & Furlow, where he practices general lation as well as international business, litigation. focusing particularly on Africa. He 78 DUKE LAW MAGAZINE / WINTER 1995 Gary H. Pilnick is working in Tokyo, '90 Karen R. Cashion has relo- Empowerment: Structural Economic Japan for Mori Sogo Law Offices, cated to Atlanta, Georgia, Theory, Procedural Civil Rights, and where he specializes in international and is practicing with the firm of Substantive Racial Justice, 107 HARv. L. transactions. He will return to the firm Meadows, Ichter & Ttigg. REv. 1463 (1994). ofJenner & Block in Chicago, Illinois Timothy S. Crisp has joined the Chicago, Gerard J. Waldron has joined the Wash in the summer of 1995. Illinois office of Winston & Strawn. ington, DC office of Covington & Robin l. Rosenberg has joined the West Anthony Taibi has published Banking, Burling as special counsel, where he Palm Beach, Florida office of Foley & Finance and Community Economic works in the communications and Lardner, where she practices in the liti legislative practice areas. gation department. Changing Mongolia's Legal Framework After 70 years of Russian dominance, Mongolia is searching for a new identity. "Since the first demo cratic elections took place in 1990, the country has begun a transition from a centrally planned economy to a market economy," explains Heimerick (Rick) Jansen , llM '88. Jansen is a legal advisor in Ulaanbaatar, Mongolia, helping to develop Mongolia's new legal framework in avariety of ways. He is currently writing aneeds assess ment for the country's legal sector, which will be dis tributed among foreign donor organizations upon its completion. Since April 1994 , Jansen has been assist ing the Supreme Court of Mongolia and the Ministry of Justice with the interpretation and drafting of new leg islation based on amarket economy. He also reviews Mongolia's existing business and commercial laws. Recently, Jansen has lectured to Mongol ia's legal community on subjects including bankruptcy law, property rights, contracts, privatization of state-owned enterprises, the European Union, the independence of Rick Jansen '88 astride a horse in the Sobi Desert. judges and the Dutch judicial system. "I also assisted Mongolia's judiciary with the drafting of acode of con duct for its members and made several trips to the percent of all livestock in Mongolia is privately owned. he practiced Dutch commercial , corporate, labor and countryside to get acquainted with working conditions Jansen says he applied for this position because environmental law. of judges and lawyers outside the capital." Jansen says he wanted an opportunity to explore the legal environ When not working , Jansen has spent time travel these conditions include poor housing, communica ment outside the big law firms . He was chosen as a ing around the Mongolian countryside and in China. tions, education and salaries, as well as a dearth of finalist for the job by the United Nations, and the Of life in Mongolia, he says that "one starts valu ing the office equipment such as faxes and copy machines. Mongolian government ultimately selected him. This simple things in life again, such as having a hot The concept of private property, particularly as one-year project is sponsored by the United Nations shower or a well-functioning telephone, since these related to immovables, is still an issue on the Mon Development Program (UNDP) and Stichting Neder things are more the exception than the rule here." golian political agenda, says Jansen. "Opponents of landse Vrijwilligers (SNV), a Dutch governmental Jansen says that although Mongolian culture dif land privatization are concerned that this would destroy development organization . It is co-financed by the fers from European culture, it is not that different. pastures and think it would be contradictory to Asian Development Bank. "Many Mongolians got Europeanized when they were Mongol ia's historical traditions," he explains. "On the Prior to his stint in Mongolia, Jansen worked in studying in the former Soviet Union and other coun other hand, supporters of privatization of land believe Brussels for an American law firm , practicing interna tries of the former Eastern Bloc." A recent addition to that this would help util ize currently unused land, tional commercial and corporate law as well as the law Mongolian culture, he notes, is vegetables ("before it develop free market relations , and attract foreign of the European Union. Immediately after Duke, he did was just mutton and rice"). Jansen says the food sup investment. " The privatization of livestock has gone atraineeship in Paris with a French law firm , then was ply is not as bad as it used to be, "but fresh vegetables quite well , notes Jansen. At present, more than 90 an associate at a Dutch law firm in Rotterdam , where and good meat apart from mutton are still hard to find. VOLUME 13 , NO. 19 Elizabeth Zirkle Williams has opened a Dana J. lesemann has joined rhe ser David S. Sager has joined rhe Morris law and mediation practice in Gaithers vice industry practices division of rhe town, New Jersey and New York City burg, Maryland. Bureau of Consumer Protection in rhe law firm of Porzio, Bromberg & New Federal Trade Commission in Wash man, as an associate in rhe litigatio n '91 Susan l. Heilbronner has ington, DC. department. joined rhe Washington, DC Maureen Gimpel Maley is now assistant Juraj Strasser is counsel of rhe Euro office of King & Spalding, working as general counsel of Genesis Healrh Ven pean Bank for Reconstruction and an associate in rhe area of white collar tures in Kennett Square, Pennsylvania. Development in London, England. criminal defense. Thomas K. Wallinder is on leave from the law firm of Mannheimer Swartling in Stockholm, Sweden, and is currently working in the corporate finance department of Merrill Lynch Interna tional Ltd. in London, England. The discovery of apple juice or canned soup on your loan, and as aconsequence , it is less important to find Xianping Wang has been appointed shopping tour becomes a thrilling experience." a $70,000 position after graduation . They will never adjunct professor by rhe Management Jansen notes that many of this country's 2.2 mil find that anyway, since the starting salary for Dutch College of Civil Aviation Administra lion citizens "are extremely curious, perhaps because attorneys is approximately $30,000." tion of China, teaching international of 70 years of isolation. Buddhism is still pretty much Another major difference is that "Dutch law stu aviation strategy and international alive. Destroyed temples are being rebuilt and the Dalai dents are age 18 when they enter law school , often aviation relations. Lama is a frequent visitor to the country." Alcoholism too young to make a motivated choice. Law studies Arnold W. Winter, an associate in the is amajor problem. "One can find the glass of broken are seen more as a general type of education ." Only Philadelphia, Pennsylvania office bottles of Arkhi (Mongolian vodka) nearly everywhere 10 to 15 percent of Dutch law students go on to in Ulaanbaatar." become attorneys, judges, or enter other, strictly legal of O bermayer, Historically, Mongolia has been closely allied with professions. Rebmann, Max the former Soviet Union since 1921 , and was some Jansen modestly jokes that he chose Duke well & Hippel, times referred to as the unofficial 16th Republic of the because "they accepted my application! " He claims to was recently Soviet Union . Jansen notes that Mongolians are now have driven "the biggest car in North Carolina"-a appointed vice trying to re-identify themselves with Genghis Khan, the Buick station wagon, on frequent outings to the Metro president of great warrior and unifier of the Mongolian people back Club, Ninth Street Bakery and Brightleaf Square. membership and in the 13th century. "They take a lot of pride in their Jansen says he had a great time at Duke, getting development and past," says Jansen, "but in my opinion they should acquainted with fellow Europeans and Americans , and a director of rhe focus more on their future." Even now, half of the pop finding the professors very helpful to foreigners . Arnold W. Winter '91 German-Ameri- ulation lives as semi-nomadic herdsmen in the coun With nearly a year of consulting experience in can Chamber of Commerce, Inc. tryside, the other half mainly in Ulaanbaatar. Mongolia under his belt, Jansen sees room for Philadelphia. At his firm, he serves One change over the past few years is the growing improvement of development efforts: "One of the fas trend of Mongol ians turning away from jobs in the cinating things to observe is the circus of foreign con domestic and international clients as public sector and trying their hand at private business. sultants and experts who fly into Ulaanbaatar. Many a member of rhe corporate and real Jansen says this is the result of a widening gap seem to work in the same area and offer the same type estate department. between salaries in the public and private sectors. A of assistance. I think that in order to make development minister, member of Parliament, or a judge-Jansen aid more effective, the coordination between donor '92 Sean E. Andrussier has ac- says-makes only $50 a month. countries and organizations and the Mongolian cepted a clerkship wirh rhe A native of the Netherlands, Jansen earned his authorities must improve conSiderably." Honorable Karen LeCraft Henderson Civil Law degree at the University of Amsterdam in Jansen keeps in touch with the Law School via fre of the United States Court of Appeals 1987, then enrolled at Duke to pursue an LLM . He quent, humorous letters detailing the trials and tribu for rhe DC Circuit for rhe 1995-96 came to the US to get acquainted with the Anglo lations of a stranger in a strange land. Telling tales of term. American legal system (the Netherlands has a civil! getting his apartment robbed by a Mongolian police continental legal system) and to broaden his legal man, falling through a stand which collapsed during Robert S. Chang has joined rhe faculty horizons. the Naadam horseraces, dressing up for the Peace at California Western University School American law schools differ from Dutch schools, Corps' Halloween party, and examining the remains of of Law in San Diego, where he will says Jansen, in that "American law students may be adinosaur, it is obvious that Jansen is making the most teach contracts and a seminar entitled more motivated than their Dutch counterparts. As a of his year in Mongolia. "Law and the Intersection of Race, rule, Dutch law students do not have the burden of a - Laura Ertel Gender, and Ethnicity." His article, 80 DUKE LAW MAGAZINE / WINTER Toward an Asian American Legal Schol arship: Critical Race Theory, Post-struc turalism, and Narrative Space, 81 CAL. L. REv. 1241 (1993), is scheduled to be reprinted in 1 ASIAN L.J. (1994). Jon E. Cohen is running a real estate development and property manage ment company in Newport, Rhode Island. Denise A. Dosier is a corporate law/ health care associate with Bryan Cave in St. Louis, Missouri. Gail H. Forsythe has been chosen as the first discrimination ombudsperson for the Law Society of British Columbia to mediate harassment disputes involving lawyers. She practices in Vancouver and Edmonton, Canada, specializing in dispute resolution and mediation. M. Monique Garris is the academic The Class of 1974 celebrated its 20th reunion in October with Professor William Reppy (seated at piano). coordinator for the 1995 Special Olympics World Summer Games in laura L. Segal is a corporate associate Teresa Deloatch New Haven, Connecticut. at Paul, Weiss, Ritkind, Wharton & has joined the James A. Gleason has a general law Garrison in New York City. Charlotte, North practice in Thomasville, North Carolina office of Carolina. '93 Jacqulynn M. Broughton is Petree Stockton practicing with Clark, Ladner, as a litigator. Norman H. PeHy, Jr. has joined the Fortenbaugh & Young in Philadelphia, business and finance department of Pennsylvania, primarily in the areas Morgan, Lewis & Bockius in Phila of securities and products liability delphia, Pennsylvania. Teresa Deloatch '93 litigation. Personal Notes '51 Milly S. Dufour was married their daughter, Jade Augustine Young '79 Carl J. Schuman and his wife, to Albert H. Peters, Jr. on Ford, on June 26,1994. Mary, announce the birth of August 21, 1993. They reside in Aiken, their second child and first son, Joseph South Carolina. '''""l6 Russell M. Frandsen and his Peter Schuman, on August 10, 1994. / ~ wife, Christie, report the '65 Alexander B. Denson was birth of their tenth child and fifth '80 Jeffrey P. King and his wife, married to Mary Haywood daughter on January 26, 1994. Gail, announce the birth of on October 2, 1993. They reside in their first child, a daughter named Raleigh, North Carolina. '78 Edward P. Tewkesbury and Katherine MacConnell King, on July his wife, Fran, announce the 8, 1994. '68 Paul B. Ford, Jr. and Nancy birth of their third child, a daughter Lisa Margaret Smith was married to Young announce the birth of named Anne Elizabeth, on January 6, William Edward Bowen on October 8, 1994. VOLUME 13 , NO.1 81 1994 in White Plains, New York, J.S. (Chris) Christie announces the '87 Sco" A. Cammarn and his where Lisa is an assistant United States birth of his third child, a daughter wife, Heather, announce the anorney. They reside in Wilron, named Sarah Wallace Christie, on birth of a second child, Kevin John, on Connecticut. Ocrober 9, 1993. September 27, 1994. He joins his older J. Page Davidson and his wife, Nina, sister, Cindy. '81 linda Cox Fornaciari announce the birth of a daughter, Jessie David H. Donaldson and Susan Bysie announces the birth of a Elizabeth, on February 26, 1994. wicz, Class of '86, announce the birth second child, a daughter named Carol J. Porter Durham and his wife, Mere of their second daughter, Leyna, on Cox Fornaciari, on July 3, 1994. dith, announce the birth of their third December 22, 1993. child, a daughter named Everett Leigh Eve Noonberg Howard and Jasper A. lorraine Shook Berkowitz '82 ron, on January 10, 1995. Howard report the birth of a son, reports the birth of a third Charles Durham, on June 16, 1994. child, a son named Michael Shook Eric A. Isaacson and Susan Weaver, Berkowirz, on December 7, 1993. He Class of '87, report the birth of a sec Elizabeth Miller Roesel and her hus joins his sister Rachel and brother ond daughter, Audrey Louise Weaver band, Thomas, announce the birth of Aaron. Isaacson, on June 7, 1994. a daughter, Erica Corinne Roesel, on June 6, 1994. James F. Wya" , III was married ro Edna Peter A. Thalheim was married ro Sandoval on Ocrober 15, 1994. They Maura Delaney Puckett on June 18, Sherry White Tatum and James E. reside in Charlone, North Carolina, 1994 in Old Greenwich, Connecticut. Tatum , Jr. , Class of'89, announce the where James is in private practice. Peter has a solo commercial law prac birth of a son, James E. Tatum, III, on tice in Greenwich. Attending the November 16, 1994. wedding were several members of the '83 David T. Buckingham and Susan Weaver and Eric A. Isaacson, his wife, Cynthia, report the Class of'85: Siobhan and Press Millen, Class of'85, report the birth of a sec birth of a daughter, Anne Elizabeth, Steven Lazar, Alan Cregg and Robert ond daughter, Audrey Louise Weaver on January 7, 1995. Carroll. Isaacson, on June 7, 1994. Jean Gordon Carter and her husband, l. Campbell Tucker, III and his wife, Michael, announce the birth of a son, Burnet, announce the birth of their '88 Timothy A. Baxter was married William Gordon Carter, on May 25, first child, a daughter named Elizabeth ro Lynn E. Digby in Bosron, 1994. Carlisle (Carley) Tucker, on July 25, Massachusetts on Ocrober 9, 1993. 1994. Tim practices with Morrison, Mahoney Richard l. Garbus, and his wife, Peggy, & Miller in Bosron. announce the birth of their second Catherine Deery Barshay and daughter, Berert Elizabeth, on July 21, '86 Jody K. Debs was married ro George H. Clifford A. Barshay announce 1994. Gigiolio in 1993. They reside in San the birth of their first child, a daughter Francisco, California, where Jody is Rona ld G. Hock and his wife, Barbara, named Emily Clare Barshay, on May employed by Bechtel Corporation, report the birth of their third child 13, 1994. working on public secror engineering and second son, Trevor Hollingsworth Susan Bysiewicz and David H. Donald and construction projects. Hock, on August 17, 1994. son, Class of'87, announce the birth Maria B. Douvas was married ro Hence of their second daughter, Leyna, on Patricia Beaujean-lehtola and Orme on May 14, 1994. They reside in '84 December 22, 1993. her husband, Jouni Lehrola, New York City, where Maria is an asso announce the birth of their second Alexandra Allen Carr and her husband, ciate with Stroock & Stroock & Lavan. child, a daughter named Lila Marcela, Timothy, announce the birth of a Kelley A. Grady and her husband, John on July 18, 1994. daughter, Julia Elizabeth Carr, on July Janda, report the birth of a second son, 25,1994. Sol W. Bernstein and his wife, Risa, Conor, in April 1994. announce the birth of their second Robin G. Hayutin and Allen G. Fishel Richard l. Gulino was married ro Becca son, Ari Phillip, on February 1, 1994. announce the birth of their second Biggio on August 28, 1993 in Wash child, Ryan Elliott Fishel, on June 28, ington, DC. 1993. '85 Seth M. Bernanke and his James E. Shepherd V and his wife, wife, Ellen Goldberg, report Brenda, announce the birth of their the birth of a daughter, Mariah Lina Bernanke, on November 6, 1994. 82 DUKE LAW MAGAZ I NE / Amy Shaw McEntee and her husband, David, announce the birth of a son, William Shaw McEntee, on Decem ber 2, 1994. '92 Christoph J.R. Partsch announces the birth of a daughter, Cara Jacobea Ada Henriette, on September 8, 1994. '93 James J. Bergin was married to Kathrin Andrea Zimmer mann in Schaffhausen, Switzerland on August 20, 1994. They now reside in New York City, where James is an Alumn i socialize during Law Alumni Weekend 1994. associate with Donovan, Leisure, New ton & Irvine, practicing securities regulation. first child and son, Kyle Anthony, on James E. Tatum , Jr. and Sherri White June 10,1994. Tatum , Class of'87, report the birth of Lars S. Bramhelft and his wife, Louise, announce the birth of a second daugh Taylor D. Ward and his wife, Sally, a son, James E. Tatum, III, on Novem ter, Pernille, on January 14, 1994. announce the birth of a son, Richard ber 16, 1994. McSween (Mac) Ward on March la, Rebecca A. Denson and David C. Nel 1995. '90 Caroline F. Bergman was son , Class of'94, were married at Duke married to Michael R. Gott Chapel on August 6, 1994. They reside in St. Louis, Missouri where they both '89 Gayle Crellin Anthony and her schalk on March 5, 1994. They reside husband, Kevin, announce in Chatham, New Jersey; Caroline practice law. the birth of their first child, a son practices with Cravath, Swaine & Frances S. Lowenfield was recently named Robert Justin Anthony, on Moore in New York City. married to David R. Blair in the Duke November 30, 1993. Michael D. Kabat was married to Nancy University Chapel. Mark T. Hurt and his wife, Rhonda, A. Stoll in Pittsburgh, Pennsylvania on Mark U. Thurmon was married to Caro report the birth of a second child, May 29, 1994. Classmates Jay Fisher line Erin Barry on October 8, 1994 in William Alexander, on March 14, and Jeff Israel were among the grooms Baton Rouge, Louisiana. They reside in 1994. He joins his older sister, Lauren. men. They reside in Atlanta, Georgia, Austin, Texas, where Mark is an asso where Michael practices with the firm John B. Persiani was married to Theresa ciate at Arnold, White & Durkee. of Fisher & Phillips. Grinwis on September 24, 1994. They reside in Jupiter, Florida. Scott L. Kaufman and his wife, Audrey, '94 Richard S. Arnold , Jr. was announce the birth of a son, Aaron married to Judith Nicholas Kenneth A. Remson was married to Joshua, on December la, 1993. on August 12, 1994 in Ettlingen, Ger Jana Raeanne Kealaokeaumoe Chun many. They reside in Palo Alto, Cali on September la, 1994 in Kahuku, Martin Schaefermeier and his wife, fornia, where Rick is an associate with Hawaii. Groomsmen included Sean Grace, announce the birth of a daugh Wilson, Sonsini, Goodrich & Rosati. Hughto '89 and Alan Levine '88; ter, Elizabeth Anna, on July 14, 1994. Karen Wingo '89 attended. Ken prac Anthony Taibi was married to Hester Jennifer L. McCracken and Jason G. tices in Los Angeles, California with Leone Furey on June 18, 1994 in New New were married on August 20, 1994. Jones, Day, Reavis & Pogue, where York City. Tony is practicing with They reside in Chicago, Illinois. he specializes in insurance litigation. the firm of Kurak Rock in Atlanta, David C. Nelson and Rebecca A. Den Janelle M. Sherlock and her husband, Georgia. son , Class of'93, were married on Chris Pearson, announce the birth August 6, 1994 at Duke Chapel. They of their first child, a son named Jake '91 Anne Eldridge Connolly and reside in St. Louis, Missouri where they Maxwell Pearson, on August 6, 1994. Colm F. Connolly announce the both practice law. birth of a son, John Eldridge Connolly, on August 11, 1994. VOLUME 13, NO. 1 83 Obituaries Class of 1926 bury Foundation, was treasurer and Class of 1951 Bryce R. Holt, 92, of Greensboro, director of the Rowan Development Standish S. Howe of Durham died North Carolina, died on June 7, 1994. Corporation, and served on the Up on June 1, 1994, after a long illness. He was an attorney with the firm of town Improvement Committee. In A lawyer in private practice, he was a Holt, McNairy and Harris, and served 1958, Smith was chosen "Man of the former assistant city attorney for Dur as a United States district attorney Year" by the Salisbury Lions Club. ham. He was awarded the Bronze Star during the Truman and Eisenhower Smith is survived by a son, Harley for bravery during World War II and Administrations. He was the past Smith; two grandsons; and three was a member of Durham American president of the Greensboro Civitan great-grandsons. Legion Post #7. He is survived by his Club, the Greensboro Bar Association, friend and companion, Mary Hintz. and the Duke Alumni Association. Class of 1942 Surviving are his wife, Marion K. M. Haynes Brown, 77, of Erwin, Class of 1952 Holt of Greensboro; a son, Bryce R. Tennessee, died on March 29, 1994. Harold E. Ford , 66, of Madison, Holt, Jr. of Chattanooga, Tennessee; He had served for a number of years Indiana, died on August 5,1994. a daughter, Catherine H. Hudnell of as sessions court judge for UnicoI He was a veteran of the United Sates Greensboro; five grandchildren; and County and had operated A.R. Brown Army. He served as a city judge in four great-grandchildren. and Company, a retail establishment Madison from 1953 to 1955, as attor William H. Smith, 93, of Salisbury, founded by his father, until its closing ney for the Jefferson County Depart North Carolina, died on October 27, in 1985. Brown was a veteran of World ment of Public Welfare from 1955 1994. In the late 1920s and early 30s, War II, having served in the US Navy. to 1966, as attorney for the Madison Smith was a high school coach and He chaired the UnicoI County Board Consolidated Schools from 1965 to principal. In 1934, he moved to Salis of Education, served on the Board 1981, and as an attorney for the Swit bury, where he organized Pilot Paint of Control of the Unicoi County zerland County School Corporation Company, becoming its president in Memorial Hospital, and on the UnicoI from 1968 to 1973. 1935. He was assistant treasurer of County Industrial Commission during Ford was the prosecuting attorney Carolina Rubber Hose from 1936 to the 1950s and '60s. for the Fifth Judicial Circuit from 1943, and was president of Morlan Brown is survived by his wife, 1967 to 1970. He was president of the Park Real Estate Company in 1941. Beryl Stoker Brown; three daughters, Jefferson County Bar Association in He was president of Morris Plan Loan Suzanne Brown Sumrall of Atlanta, 1966 and treasurer in 1956, and was Company from 1942 to 1966 when he Georgia, Martha Brown Stromberg a member of the Indiana Trial Lawyers converted the company to a commer of Erwin, and Alexandra Brown of Association. cial bank, the Security Bank & Trust Lexington, Virginia; three sisters; five Ford is survived by a daughter, Company. He remained chairman of grandchildren; and several nieces and Cynthia Ford Childress of Blooming the board until 1985. nephews. ton, Indiana; a son, Brian S. Ford of Smith was a past chairman of the Madison; three brothers, Bryon Ford, North Carolina Bankers Association Class of 1948 Lynn Ford, and Gerald Ford; two and a past director of the North Caro Julius G. Carden, Jr. of Atlanta, sisters, Janet Ensley and LaVada Bost lina Bankers Association of Auditors Georgia, died on October 15, 1990 of wick; and four grandchildren. and Comptrollers. He served as a cancer. After serving in World War II, Bob Allen Franks, 69, of Wash member of and chair of the Salisbury he joined the FBI and was later a man ington, Pennsylvania, died on June 3, School Board, was a president of ufacturer's representative to the textile 1994. He was a veteran of World War the Rowan County Duke University industry. He had retired as president of II, serving with the US Navy in the Alumni Association, and was a director Carden Sales Company. He is survived Pacific from 1943 to 1946. He prac of the local United Fund and Chamber by his wife, Shirley; two sons; and a ticed law in Washington from 1953 of Commerce. He directed the Salis- daughter. until his retirement in 1992. He was 84 DUKE LAW MAGAZ I NE / W I NTE R 1995 elected Washington County prothono ham; a brother, John Rosenthal of laura B. Humphries, 34, of Arling tary in 1963 and was re-e1ected for Durham; and a grandson. ton, Virginia, died in late September six terms. 1994. She was employed by the Federal Franks is survived by his wife, Class of 1972 Communications Commission, and Estella McFadden Franks; a daughter, luke M. Brown , III of New York had previously worked for the Wash Rita Franks White of Morgantown, City, died on March 11, 1994. ington, DC firms of Leventhal, Senter West Virginia; a brother, Lee David & Lerman and McKenna, Wilkinson Franks of Columbus, Ohio; and two Class of 1973 & Kittner in the area of communica grandsons. William E. Hill, 44, died on Sep tions law. She was a 1982 graduate of tember 1, 1994. He was employed by Vanderbilt University, and was a vol Class of 1963 the Employee Advocacy Program of unteer adult literacy tutor. Brian Stone, 57, of Durham, died the District of Columbia Chamber A fund has been created at the on January 16, 1995. He was director of Commerce. He began his career in Law School in memory of Humphries of the Atlanta Development Office of private practice, later serving as a trial to purchase books in the communi Duke University from 1966 to 1970, attorney for the Justice Department, cations law area for the Duke Law and was a partner in the law firm of and as assistant chief counsel for the Library. Donations may be directed Stone & Pennington in Atlanta from Food & Drug Administration. He to the Office of Alumni Affairs and 1970 to 1979. He left the firm to also served as counsel to the Office Development, Duke University School become the first executive director of of Budget and Management during of Law, Box 90389, Durham, NC the Atlanta Volunteer Lawyers Foun the Carter Administration, and was an 27708-0389. dation, where he served until 1989. adjunct professor at Georgetown Uni Richard E. Rosenberg, 37, of Oak From 1985 to 1986, he was president versity and American University. Hill land, California, died September 13, of the Lawyers Club of Atlanta. He was co-founder of CACTUS, a men 1994, from injuries sustained in a car was a past president of the Leadership toring and tutoring program for inner accident in Waltham, Massachusetts, Atlanta Alumni Association and a long city children. where he had traveled to attend a fam time national director of the Close Up ily member's wedding. He was a devel Foundation Board in Washington, DC. Class of 1975 opment officer for the Green Industry In recent years, since returning William J. Reitman, 42, of Los Program, a recycling project and devel to Durham, Stone had served as a con Angeles, California, died on November opment fund for the City of San Jose, sultant to the NC State Bar Plan for 20, 1994. He was a partner in the Los California. He had previously worked Interest on Lawyers Trust Accounts, Angeles office of Mayer, Brown & Platt, in the San Jose department of afford and as a consultant to the Law School's where he was a litigator. He became able housing, and was an associate at Private Adjudication Center. a partner at the firm's Chicago, Illinois Morrison & Foerster in San Francisco Stone served on the Law School's office in 1982. In 1985, Reifman for three years following his graduation Board of Visitors until 1990, when moved to Los Angeles to open Mayer, from the Law School. he was named an honorary life member Brown & Platt's West Coast office. Rosenberg is survived by his of the Board. He served on the School's Reifman is survived by his wife, parents, Alvin and Beverly Rosenberg Major Projects Council and as a volun Cheryl; two daughters, Rebecca and of Newton, Massachusetts; two broth teer leader of the University's Arts & Abigail; a son, Robert; his parents, Beth ers, Jeffrey and Larry; a sister, Carol Sciences Capital Campaign. In 1986, and Phillip Reifman; and two sisters, Leonard; and grandparents, Samuel he was honored by the University with Barbara and Sallye. Melnick and Sara Rosenberg. the Charles A. Dukes Award for Out A fund has been created at the standing Volunteer Service. Class of 1985 Law School in Rosenberg's memory Stone is survived by his wife Betsey Michael J. Barnes, 34, of New to benefit the Law School's Pro Bono Beach Stone; two daughters, Jennifer York City, died in October of 1993. He Project. Donations may be made Stone Oates of Memphis, Tennessee had worked for Morgan Stanley & Co., to the Office of Alumni Affairs and and Meredith Stone of Chicago, Illi Inc. and as an associate at Winthrop, Development, Duke University School nois; a son, Brian Stone, Jr., Duke '93, Stimson, Putnam & Roberts. He was of Law, Box 90389, Durham, NC of Durham; his parents, Julian Bernard a 1981 graduate of the University of 27708-0389. and Frances Stone Rosenthal of Dur- Notre Dame. 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