VOLUME 6

Contents 2 Editor's Column / letters 3 Forum

4 The Criminalization of Insider Trading/james D. Cox

9 College Sports Reform: Where are the Faculty?/ john C. Weistart 16 Conference Report: The Emerging Framework of Civil Law in China

18 About the School 19 Deanship Transition 23 Concentrating on Legal Ethics 24 For the Children S Sake: Duke law Students Represent the Abused and Neglected 29 Innovative Clinical Programs at Duke

DEAN EDITOR ASSOCIATE EDITOR Paul D. Carrington Evelyn M. Pursley Joyce Bumann NUMBER 2

33 The Docket 34 Participating in Changes in the Chinese Legal System 39 Changing Deanships

42 Alumnus Profile: James M. Poyner '40 44 Specially Noted 51 Alumni Activities 58 Upcoming Events

Duke Law Magazine is published under the auspices of the Office of the Dean, Duke University School of Law, Durham, North Carolina 27706 © Duke UniverSity 1988

STUDENT REPORTERS BUSINESS MANAGER PRODUCTION Mark DiOrio Mary Jane Flowers Graphic Arts Services Robert Nagy Greg Orner DUKE LAW MAGAZINE / 2

Editor's Column

This issue announces a major In addition to the news of our alumnus prof.tle for this issue fea­ transition at Duke Law School. Paul dean change, the About the School tures Jim Poyner '40 who has spent D. Carrington, who has served as section includes articles on the legal a lifetime making important contri­ dean here for ten years will be re­ ethics course that is now part of butions to the Triangle area and to turning to teaching, and Pamela B. the first year curriculum and the North Carolina generally. Our Spe­ Gann, a member of the Law School clinical curriculum at the Law School. cially Noted feature highlights tran­ faculty since 1975, will be assuming Also included is an article about sitions of a number of Duke Law the deanship effective July 1, 1988. Duke Law students who are partici­ alumni and faculty members. Both deans are featured on our pating in the Guardian Ad Litem In the Alumni Activities section, cover, and some thoughts on the program in Durham County either we continue to share news of your transition are included in the About as volunteer guardians or through personal and professional milestones the School section. the Child Advocacy Clinical program with the Duke Law family. We are In two timely articles in the established and supervised by Kate always pleased to hear from you Forum, Jim Cox shares his views Bartlett. and hope that you will continue on the criminalization of insider The Docket continues to grow to notify us with news of yourself trading, and John Weistart consid­ as we receive more information re­ or your classmates. We also encour­ ers the (non-?) role of the faculty in garding our alumni. In this issue age all of our readers to communi­ college sports. The Law School we report on our expanding network cate with us so that we can respond hosted a conference on civil law in with China. The China Program is to your interests in the Magazine. China this fall, a report of which is an important part of the Law School's also included. growing international program. Our

Letters

Duke Law journal Dear Mr. Lofton: high standing. Evidently, therefore, I am a graduate of Duke Law ~ appreCiate your interest in the Journal established in 1951 was School-Sept. 1942. Yes, that fall the history of the Law School and a revamping of this earlier publi­ date is correct. We were under a its publicatiOns. One benefit we are cation along the lines of law reviews speedup program arranged so that deriving from publishing articles at other schools. we could graduate before we were on programs at the School is in­ Again, we appreCiate hearing drafted for service in World War II. creased knowledge of our own from you. ~ hope that you continue I am writing about an item in history. to enjoy the Duke Law Magazine. the latest issue of Duke Law Maga­ }bu are correct that there was Please let us know if we can ever zine. It is the article on page 34 a publication of very similar name provide you with further informatiOn. entitled "Duke Law journal." The at the Law School when you were article implies-but does not say here in the early '405. According directly-that a publication called to the article, "Duke Law School Let us know if something the Duke Bar journal had its in the 19305: A Retrospective," pub­ piques your interest. Send letters to beginning in 1951. lished in the Winter 1987 issue of the editor to: If my recollection is correct, we the Duke Law Magazine, the Duke had a Duke Bar journal when I was Bar Association Journal was estab­ Editor, Duke Law Magazine in school. I had a copy of it in my lished at the Law School in 1933. Duke Law School f.tles for years, but I must have fi­ This publication was modeled after Durham, NC 27706 nally discarded it. Therefore, I can't the journals Of state bar associa­ prove my point. tions and carried as one section I would appreciate it, however, the proceedings of the Duke Bar if you could check it out and let Association. A second section pub­ me know. I thOUght you might be lished comments on current court interested in this bit of Duke Law decisions of consequence prepared history. in the Current Decision course by John Lofton second and third year students of

DUKE LAW MAGAZINE I 4 The Criminalization of Insider Trading James D Cox*

nsider trading of one measure or another has Indeed, even a few experienced securi­ most certainly been a part of society as long as markets have existed. Its proscription caught ties lawyers opine that insider trading I the eye of the corporate-securities bar in the is a victimless offense. mid 1960s with the exciting facts involved in the Sec­ ond Circuit's landmark decision, SEC v. Texas Gulf

Sulphur Co. J 1 wherein insiders were required to dis­ close material nonpublic information or abstain from trading. And, in the last few years a new regulatory dimension has been added to insider trading with intensified enforcement of insider trading within the criminal system. The anomaly throughout these de­ velopments has been the lack of agreement among courts and commentators over who is harmed by in­ sider trading. Indeed, even a few experienced securi­ ties lawyers opine that insider trading is a victimless offense. If insider trading were to remain purely an SEC civil enforcement matter, answering this question would be less urgent, because so much of the regu­ lation under the federal securities laws is not designed to protect investors from any overt harm, but rather to assure the smooth and fair operation of securities markets. However, the current frequency and intensity of the government's enforcement of insider trading through the criminal justice system not only invites critical reconsideration of the reasons insider trading is prohibited, but also requires a separate justification for using the criminal justice system to serve that cause. The following are some tentative views on these ques­ tions that I recently shared with our alumni during Barristers Weekend. Not surprisingly for those who know me, I come out on the pro regulation side of these questions and believe that criminalization of insider trading is consistent with both historical and emerging functions of the criminal justice system.

*Professor of Law, Duke University. Professor Cox Insider Trading Orthodoxy joined the Duke Law School faculty in 1979 and First attempts to justify insider trading's proscrip­ teaches primarily in the corporate and securities tion focused on how it was believed to harm investors. area. He recently testified on the Insider Trading Insider trading was characterized as unfair, as surely Proscriptions Act of 1987 before the Securities Sub­ it is, because the insider by virtue of his position or committee of the Us. Senate Committee on Banking stealth has an unerodible advantage in the information Housing and Urban Affairs. Tbis article is derived he possesses. But how does this unfairness harm the from a presentation to those attending the Duke Law insider's opposite trader? The insider's trading can School Barristers Weekend in March 1988. easily be seen as a fortuity. The individual investor's VOL. 6, NO. 2 / 5

decision to sell or to purchase is unaffected by whether ... much of the regulation under the the insider is also secretly trading in that same market. If the insider neither purchased nor sold, the indi­ federal securities laws is not designed vidual investor would nevertheless have pursued his to protect investors from any overt trading strategy To be sure, sellers are disadvantaged by the nondisclosure of good news as are buyers by harm, but rather to assure the smooth the nondisclosure of bad news. But such conclusions and fair operation of securities fail to implicate why the insider's trading contempo­ raneous with their possession of such information markets. should impose upon them a duty to disclose. Modest support for the disclose or abstain rule can be found if the trading and nondisclosure aspects intertemporal swings in the firm's value; they thereby of insider trading are disaggregated. Certainly the in­ can reap the gains of their privileged positions by an­ sider's trading does impact the supply and demand ticipating the direction of stock price movements. for the security traded in, so that the insider may pre­ It is the rare inside trading case where such abusive empt a price that was a lower "buy" price or a higher practices have been found to exist and serve the in­ "sale" price than what would have been available to sider's trading agenda. This does not imply, however, the investor if the insider had abstained from trading.2 that such abuses do not more frequently accompany Under such a rationalization, the investor's harm is insider trading. Great uncertainty exists whether sound both problematic and trivial. It is purely in the realm managerial judgment guided the timing of a corpo­ of speculation what price would have been available to rate announcement and its ambiguities, the initiation outside investors if the insider had not traded. More­ or delay of a transaction, or the selection of a riskier over, in a goodly number of cases, the resolution of project. Moreover, when such abuses are found, it this sticky factual question would appear hardly worthy appears far better to justify prosecution by calling a of the considerable effort it will entail. The insider's "spade a spade" and addreSSing directly the manipu­ trading will have minimal impact on the stock's price. lative practice than it is to trump the manipulative And, the argument overlooks benefits that the insider's practice with the fortuitious unfairness to the insider's trading may have conferred on parallel traders, those contemporaneous opposite trader. And, a generalized who also purchase when the insider purchased; for fear of a potential for abusive disclosure practices to this group, the price and volume changes that the accompany insider trading appears too insubstantial insider's trading stimulated may have attracted others to justify criminal sanctions when the evidence only similarly to trade so that such parallel traders unwit­ supports a fmding of insider trading. tingly invested "in a sure thing." But the ultimate prob­ Close observers of insider trading regulation are lem with the argument that the misdeed of inside aware that most government prosecutions, particular­ trading is that the insider thereby preempts a price ly criminal actions, are against individuals who tech­ otherwise available to others is that this reasoning begs nicallyare not insiders.4 Most actions, and certainly the question. Insiders are permitted to trade, and there­ those that have captured media attention (e.g., Messrs. fore preempt a price available otherwise to others, Boesky and Levine) involved various market profes­ when they are not in possession of inside informa­ sionals and others who "misappropriate" information tion; therefore, why should they not be similarly free from their employer and use that information to pur­ when their trading is on the basis of inside information? chase or sell another entity's stock. The reasoning In the light of the above analysis, it is not surpris­ supporting the "misappropriation theory"5 is the ne­ ing that insider trading regulation has been more fre­ cessity of curtailing the "unfairness" to employment quently justified by highly generalized incantations of relations of such unauthorized uses of the employer's the neceSSity of preserving the integrity of securities confidential secrets. 6 That this justification is highly markets so as to preserve investor confidences. Cer­ privatized, focusing exclusively on protecting the em­ tainly investor confidences are most directly implicated ployer of the misappropriator, is underscored by the when insider trading is accompanied by various abu­ denial of private investors to recover from the mis­ sive disclosure practices. There is growing evidence appropriator.7 To this formulation must be further that insider trading is sometimes accompanied by added the observation that there is an obvious and manipulative practices.3 Tardy corporate disclosures troubling discontinuity between the misappropriation would be the most likely form of manipulation. Delay theory's emphasis upon the "unfairness" to employ­ gives insiders and others time needed to capture a ment relations and the well-recognized purposes of greater share of the changes in the firm's value. Am­ the antifraud provision to facilitate informed investment biguous corporate disclosures and signals can also be decisions, to protect capital markets from manipula­ employed to create market uncertainty against which tion of stock prices and generally to sustain investor insiders with a clearer view can further their secret confidences in securities markets. A further discon­ trading agenda. And insiders may even alter timing of certing observation is that any and all versions of in­ corporate activities for the sole purpose of creating sider trading types of violation, whether labeled that DUKE LAW MAGAZINE / 6

The current frequency and intensity Insider trading is not an offense over which there is moral ambivalence, at least not outside of the of the governments enforcement of "Chicago School."12 In fact, today's increased criminal insider trading through the criminal prosecutions and SEC enforcement actions against inside traders can be viewed as coming center stage justice system not only invites critical where the public concern and condemnation have reconsideration of the reasons insider long played. Clearly no sector of the economy has withheld its condemnation of insider trading and their trading is prohibited~ but also requires reactions appear to become stronger as the prevalence a separate justification for using the of insider trading enjoys heightened visibility with the government's stepped up enforcement proftle. criminal justice system to serve that Thus, insider trading appears to satisfy Devlin's no­ cause. tion of actions ripe for criminal enforcement and to fall neatly outside the concerns expressed by Professor Kadish, because more appears at stake than our gov­ ernment's view of what fair markets require. of an "insider," "tippor," or "misappropriator," all in­ Furthermore, we should not consider it inappro­ volve the unauthorized use of information created by priate for the criminal justice system to be used to the defendant's employer. Hence, it appears that the redress and recompense purely private injuries. Early clearest and most repeated justification for insider criminal and regulatory proceedings in England were trading regulation is the harm it does to private em­ a joint arrangement in which the victim served as ployment relations. Certainly this is the rationale in prosecutor and shared with the state any fme result­ the more frequent misappropriation cases, and it is ing from a successful prosecution. 13 Today, public submitted that this rationale is portable to the pure prosecutions, criminal or otherwise, increasingly pro­ insider trading violation. vide restitution to those injured by the defendants' violation of public directives. Moreover, restitutionary Private Rights and Criminal Sanctions recoveries are generally viewed as particularly appro­ The preceding review leads to a seemingly pre­ priate for white collar offenses as the typical defen­ carious foundation for insider trading regulation dant in those cases is affluent and his offense was a through the criminal process. The central concern is calculated attempt to gain an economic advantage, that purely private matters are being protected through most likely by harming another's property.14 criminal prosecutions. For example, the Supreme Court So viewed, the enforcement question divides into in United States v. CarpenrerB upheld 8-0 the mail­ two distinct, but related questions. The fIrst is whether fraud conviction of R. Foster Winans on the highly it is appropriate to expect public resources for the privatized reasoning that the columnist's unauthorized purpose of vindicating merely private rights. This does use of his advance knowledge of his column harmed not question the appropriateness of insider trading's his employer's economic interests in preserving its proscription, but questions whether proscription reputation. This at least invites the question whether should occur through the arms of government en­ this is an appropriate use of the criminal laws. forcement agencies. In analogous positions where an A quarter of a century ago this concern was force­ employee or advisor misappropriates a fIrm's secrets, fully advanced over that era's economic crime, for customers, or opportunities, private enforcement domi­ example violating price control legislation, when Pro­ nates the fIeld and the near certain summary dismis­ fessor Kadish questioned whether the criminal sys­ sal of the violator from continued employment with tem was disserved by criminalizing conduct that was the fIrm and its related opprobrium surely serve as a "morally neutral" and proscribed one's freedom for pointed reminder to others of the serious repercus­ the purpose of serving the state's vision of an appro­ sions that attend such breaches of confIdence. Why priate economic order. 9 In other sectors of the criminal not the same approach in the case of insider trading? academic community, concern was expressed about The second question focuses on the appropriateness criminalization of victimless crimes, such as vagrancy. of the public enforcement being a criminal proceed­ These concerns over the contemporary role of crim­ ing. Certainly concluding that private actions and not inal law is informed by Lord Devlin's observation that public actions should be the sole route for awarding the purpose of the criminal law is to reinforce moral restitution to the victims of insider trading should values.10 Where conduct is morally neutral, such as not itself foreclose a parallel criminal action. The tort where it reaches legitimate modes of doing business, of conversion and the crime of larceny continue to not only is there the very real likelihood that prose­ coexist, as they have for centuries. The availability of cutions of such morally neutral behavior will over a private remedy does not foreclose the appropriate­ time be temporized, but also that such a misapplication ness of a criminal violation where the public interest of criminal sanctions will cause the criminal justice is served by criminalizing that which also produces system to lose the public's trust. ll a private right of action. On the other hand, it does VOL. 6, NO.2 / 7

It appears that the clearest and most the trading cannot be so explained, the investigation moves into its second stage, the Intermarket Surveil­ repeated justification for insider trad­ lance Information System,16 whereby the brokerage ing regulation is the harm it does to flrms that executed the suspect transactions are iden­ tified. This information appears on magnetic tapes private employment relations. and is automatically matched by the ASAM system. This, however, is only the flrst leg of the tracing process. With the participating broker identified, the not necessarily follow that conduct society deems investigators next learn on whose behalf the trade appropriate for public proscription automatically merits was initiated. The investors 17 behind the suspicious criminal sanctions. For example, of the wide array of trading pattern are then screened18 through the Auto­ possible types of securities law violations, only a few mated Search and Match System (ASAM) to determine tightly drawn categories customarily are the subject their relationship, if any, with the listed company.19 of criminal prosecutions. The question arises, there­ ASAM's data base includes the names and general in­ fore, what sets insider trading apart for criminalization? formation for over 500,000 corporate officers, direc­ tors, attorneys, accountants, and other advisors. ASAM also includes extensive biographical proflles for 71,000 Technology's Impact executives and directors. In total, executives, direc­ On the Private-Public Choice tors, and advisors from some 44,000 companies and The explanations for public prosecution of insider 33,000 subsidiaries are presently included within the trading are partly technological and partly that natural ASAM database. An investigation which may begin efficiencies exist. Public enforcement enjoys a kind with several score of traders in the suspect window of natural monopoly in this area. The government's is, with the aid of ASAM, paired by searching for each enforcement efforts are heavily dependent on the name some characteristic in common with the proflle electronic market surveillance systems of the securities information within the ASAM database. For example, exchanges and the National Association of Securities the investigator's suspicions are increased when the Dealers (NASD). These self-regulatory organizations trader's alma mater or zip code or club membership play a pivotal role in the government's increased en­ match with those of an issuer's executive. Moreover, forcement efforts. Sophisticated computer systems not the investigator can enter additional information to only detect trading irregularities but also can rapidly the ASAM data base appropriate for the inquiry at identify whether the trading involved anyone likely hand, such as the names of the investment bankers to have access to inside information. These systems or lawyers involved in a transaction. These names make an indispensable contribution to the deterrence can be cycled through the list of traders during the and detection of insider trading. Stocks listed on the suspect period to determine whether any linkage exists New York Stock Exchange are subjected to the most among the parties. ASAM is of course not the only intensive surveillance system. ground for suspicion, ISIS facilitates old fashioned The New York Stock Exchange relies upon three investigative questions whereby the investigator can interrelated programs to detect potential insider trading inquire whet.~er any of the traders in the suspect practices. Unusual changes in a listed stock's price or window were those in the know, be they bankers volume are identified within seconds of their occur­ or word processors. rence through the NYSE's Stock Watch program. The Thus, the all important concern of detecting in­ NYSE's ability to do this is heightened by its partici­ sider trading requires a substantial commitment of pation in the Intermarket Surveillance Group (ISG) personnel and sophisticated computers which can whose members include the other seven exchanges only occur through centralized enforcement of insider as well as the NASD. The ISG coordinates the overall trading. Moreover, to require separate private actions effort of exhanging market data and intensifying sur­ not only is wasteful, but runs the serious risk of under­ veillance among the exchanges and the NASD. Through enforcement. 20 Thus, the prevailing practice in which ISG, the NYSE can monitor trading in its listed stock the government obtains recoveries from insiders and on other exchanges as well as options trading in such the preSiding court awards private recoveries appears stocks. It is also standard practice for the NYSE's Market to be a highly efficient utilization of the criminal 21 Trading Analysis division,15 following a listed com­ justice system. pany's significant public announcement, to make a retrospective review of trading in a listed company's stock for possible abuses before that announcement was made. Once an abnormal trading pattern in an The central concern is that purely individual listed stock is identified, investigators, also with the aid of rapid information retrieval systems, private matters are being protected inquire whether the trading can be attributed to mar­ through criminal prosecutions. ket, industry or company-specific information. When DUKE LAW MAGAZINE / 8

going to withdraw support for the corporation's restructuring unless the The prevailing role of regulation of proposed price was increased 810. Messrs. Boesky and Levine, on the basis of their secret knowledge of the investment banker's intention to insider trading is the protection of withdraw, engaged in massive purchases of FMC's shares so that FMC's management believed market conditions required they accede to their highly private values, much as we do advisor's demands. See also, In re Or fa Sec. Lit. [1987 Transfer Binder] Fed. Sec. L. Rep. 93,225 (DN.]. 1987) (misleading statements and delayed by criminally proscribing the tort of fmancial reports accompanied insiders trading). 4. The Supreme Court has held that the "disclose or abstain" rule conversion. oniy reaches those with a fiduciary relationship to those investors trading contemporaneously with the defendant. U.S. v. Chiarella, 445 u.s. 222 (1980). Thus, in Chiarella, a typesetter for a legal printer who traded on his secret knowledge of upcoming takeover targets was outside the dis­ close or abstain rule because he had no relationship to the corporations Criminal Sanctions whose stocks he traded and, hence, no fidudary relationship to other As seen, insider trading, including tipping and investors in those companies. 1d. at 232-33. misappropriation, is not without moral condemna­ 5 The Supreme Court divided evenly over whether the misappro­ priation theory as applied to a columnist of the Wall Street Journal vio­ tion. It is not a form of regulation introduced solely lated the federal securities laws. Carpenter v. U.S ., 108 S. Ct. 316 (1987). for the purpose of advancing our society's current The case involved the criminal prosecution of the columnist Winans and vision of the appropriate economic design. The pre­ his accomplices for trading on their advance knowledge of the contents of the "Heard on the Street" column coauthored by Winans. vailing role of regulation of insider trading is the pro­ 6. See, e.g., SEC v. Materia, 745 F2d 197, 201-202 (2d Cir. 1984). tection of highly private values, much as we do by 7. See, e.g. , Moss v. Morgan Stanley, Inc., 719 F2d 5, 16 (2d Cir. 1983). criminally proscribing the tort of conversion. To be 8. 108 S.Ct. 316 (1987). 9. Kadish, Some Observations On The Use Of Cn'minal Sanctions In sure, criminalization of these private wrongs does ele­ EnforCing Economic RegulatiOns, 30 U. CHI. L. REV 423 (1963). vate the posture of the government's activities in this 10. p. DEVLIN, THE ENFORCEMENT OF MORALS (1959). area. Because of this, we are aware more than before 11. Kadish, supra note 9, at 435. 12 . See, e.g. , Carlton & Fischel, The Regulation of Insider Trading, 35 that insider trading is a serious concern. For the de­ STAN. L. REV 857 (1983). The economic justiftcations for insider trading fendant, the stakes are higher. Their concern is the do not withstand close economic analysis. See Cox, Insider Trading And opprobrium of being labeled a felon; their concern Contracting: A Critical Response To The "Chicago School," 1986 DUKE L.]. 628. is not that their incarceration is for a fairly stiff period, 13 . 2 F POLIDCK & F MAITLAND HISTORY OF ENGLISH LAW thereby affording time away from the office to im­ 449-62 (2d ed. 1898). prove his urbane pursuits, such as racketball, with 14. See, e.g., Goldstein, Defining The Role of The Victim In Criminal Prosecutions, 52 MISS. L.]. 515, 533 (1982). other "white collar" internees. In the end, it would 15. Approximately 90 individuals are employed by this division of the appear that our concern is to reduce the incidence of NYSE. In 1986 the budget for this division was $8 million of which $3 misappropriation of the employer's secrets. The Insider million was allocated to equipment acquisitions for the surveillance sys­ tem. HEARINGS ON INSIDER TRADING BEFORE THE SUBCOMMITTEE Trading Sanctions Act sought to accomplish this by ON TELECOMMUNICATIONS, CONSUMER PROTECTION, AND FINANCE authorizing the government to compel disgorgement OF THE COMMITTEE OF ENERGY AND COMMERCE, HOUSE OF up to three times the defendant's profits. But for many REPRESENTATIVES, 99th Congo 2d SesS. 146 (1986) [hereinafter INSIDER TRADING HEARINGS]. defendants, few assets exist beyond those gained by 16. The ISIS systems can provide detailed data on such items as the their trading. For them, the real deterrent is the pros­ trade or quote price of the stock or option, what brokerage firm par­ pect of criminal prosecution, not merely giving up tiCipated, and even the identity of the broker on the exchange floor who executed the transaction. All this data is available at an analyst's work­ what they had wrongfully gained. station for 30-75 days and in summary form up to 14 months. Thereafter, The result of this quick journey through con­ it can be reloaded into the system for use. Solodar, What the New }brk temporary insider trading regulation is that we are Stock Exchange Is Doing About Insider Trading, MANAGEMENT ACCOUNTING 12 (Nov. 1987). reminded again that the historical roots of our crim­ 17. The NYSE does not limit its reviews to traders of large blocks, but inallaw system were intertwined with the enforcement examines everyone in the suspect trading period. INSIDER TRADING of private rights. Indeed, for most offenses, the early HEARINGS, supra note 15, at 139. 18. In 1985 there were 15 million trades on the New York Stock Ex­ English courts merely provided the forum for private change. The NYSE staff reviewed about 12,000 trades, about 6,000 were rights to be vindicated. The recovery, later to become price and volume variations which suggested possible insider trading. Of known as a fme, was shared by the victim and the this number, about 600 underwent detailed inquiry and 65 of those were referred to the SEC. INSIDER TRADING HEARINGS, supra note 15, at 135. state. It would appear, at least on this preliminary as­ 19. Investigators obviously elicit a good deal of information regarding sessment, that insider trading's regulation once again the trading customer's background and relationship with the issuer from reflects a unique, but quite sound, utilization of pub­ the broker. Investigators access ASAM's data base and matching programs from their workstations using the same terminals that were initially used lic resources for the protection of private property in the Stock Watch phase of the inquiry. 20. Epstein, Crime and Tort: Old Wine in Old Bottles, in ASSESSING THE CRIMINAL RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS 231 (R.E. Barnett &]. Hagel III ed. 1977). A related concern is 1. 401 F2d 833 (1968). that rarely have private insider trading cases not followed a prior govern­ 2. Professor \XIang refers to this as the "Law of Conservation of Securi­ ment prosecution and private actions do not accompany all government ties," reasoning that there are a ftnite number of shares available to be prosecutions for insider trading. See Dooley, Enforcement of Insider traded at any single price and that the insider's trading wrongfully pre­ Trading Restrictions, 66 VA. L. Rev. 1 (1980). empts the availability of a price. Wang, Trading on Material Nonpublic 21. In 1987, the SEC alone obtained disgorgements exceeding $]30 Infonnation On Impersonal Stock Markets: Who Is Hanned, And Who million and in the case of Mr. Levine, a substantial portion of the $11 Can Sue Under SEC Rule lOb-51, 54 so. CAL. L. REV 1217 (1981). million recovered was to be applied to Mr. Levine's back taXes and 52 % 3. For example, in FMC Corp. v. Boesky, [1987 Transfer Binder] Fed. awarded to defrauded investors. BNA Sec. Reg. & L. Rep. No. 20 at 365 Sec. L. Rep. (CCH) , 93,223 (N.D. Ill. 1987) FMC's investment banker was (March 11, 1988). VOL. 6, NO.2 I 9 College Sports Reform: Where are the Faculty? john C. Weistart*

While each individual campus yields a different sto~ available evidence suggests a common and consistent failure on the part offaCUlties to Pick up available signals that things were awry in their revenue-producing sports programs.

point to a failure of faculty governance in these mat­ ters, the most embarrassing must surely be the dismal graduation rates of athletes in several basketball and football programs. Reports in the popular press indi­ cate that four percent of black basketball players grad­ uated at the University of Georgia in a recent period. At one Big Ten school, the graduation rate for all bas­ ketball players was nine percent. At Memphis State, the NAACP-and not the faculty, it might be noted­ discovered that in a ten-year period, no black basketball player graduated. The list goes on and covers twenty or more schools that should have been embarrassed. The troublesome question remains: where were the faculties? In almost all instances, the low gradu­ ation rates were accumulated over a period of time. While each individual campus yields a different story, available evidence suggests a common and consistent failure on the part of faculties to pick up available sig­ nals that things were awry in their revenue-producing any surprising things have been revealed sports programs. in the recent college sports scandals. But A Significant commentary on the present state of one of the most surprising is the historical athletics and higher education can be found in the M absence of effective faculty oversight of manner in which improprieties are revealed. The the educational experiences of student athletes in big­ moving force is much more likely to be a newspaper time college programs. Among the revelations that reporter than a concerned faculty member. Indeed, in two of the past three years, Pulitzer Prizes were awarded to reporters who in effect told university *Professor of Law, Duke University Professor Weistart communities how their athletic programs were be­ is co-author of The Law of Sports and is a frequent ing run. commentator on sports issues. Tbis article originally The faculty, of course, is not the only entity on appeared in Academe: Bulletin of the American Asso­ campus that should be concerned about serious mis­ ciation of University Professors, july-Aug. 1987. directions in the athletic program. The president and, DUKE LAW MAGAZINE I 10

. . . because it is relatively unaffected nopoly on preprofessional training in football and basketball. By providing the exclusive training for as­ by the pragmatic demands of day-to­ piring athletes, universities assume a social role that day administration~ the faculty prop­ inevitably places great downward pressures on aca­ demic standards. A second change would end the erly serves as the conscience of the Athletics Arms Race, as Harry Edwards aptly calls it. universit~ especially in matters that At present, college athletics operates according to an arrangement in which the rewards of athletic success affect an issue as basic as the insti­ go to those who spend the most and demand the least tution s academic reputation. academically. Faculties interested in ending this eco­ nomic and academic pressure would seek to imple­ ment changes that rewarded the athletically successful as we have recently seen, the board of trustees often with recognition, but broadly disbursed the revenues share responsibility. But faculties have a particularly from broadcasting, tournaments, and bowl games. important role to play in shaping a school's academic The fact of the faculty's limited oversight of the program and, most importantly, in insuring its integ­ academic performance of the athletic department is rity. In most universities, the faculty's responsibility not much in doubt. Less clear are the reasons why for defining the institution's educational mission is faculties choose not to be involved in matters that explicit. Faculties frequently are quick to indicate the have turned out to hold such a great capacity for primacy of their role in preserving the rigor and legit­ institutional embarrassment. imacy of the school's other academic pursuits. More­ Faculties at many universities can properly argue over, because it is relatively unaffected by the prag­ that their athletic departments have been organized matic demands of day-to-day administration, the faculty purposely to operate at great distance from the normal properly serves as the conscience of the university, channels of faculty governance. In some instances­ especially in matters that affect an issue as basic as the University of Georgia, for example-the athletic the institution's academic reputation. As a number of association is a legally distinct entity and the faculty universities have learned, the misdeeds of the athletic has no juridical claim to regulate its affairs. Even when department can have a great effect in shaping public the athletic department is "part of the university," perceptions on such matters. Hence, the question autonomy may be de facto. Not infrequently this remains: where were the faculties? happens when a powerful coach insists, and a less The recent sports scandals suggest at least two sig­ forceful president agrees, that the supervision of ath­ nificant issues relating to the faculty's role in athletics. letes will remain with athletic personnel. Thus, unlike First, why did not faculties assume a greater oversight many other issues of academic policy, the special prob­ role over the deteriorating conditions of big-time lems of athletes would not normally come before the sports? And second, can we expect a better faculty faculty. performance in the future? Virtually every school that Ultimately, though, explanations based on internal has experienced a significant sports controversy has governance structure are only partial ones. It is often subsequently undertaken a major internal review. unclear whether the autonomy of an athletic program Typically, the resulting report promises more careful is the cause or the effect of limited faculty oversight. control for the future, often with significant input As many of the recent in-house reform efforts confirm, from the faculty. But we must ask whether, once the when faculty assert a strong interest in the treatment warm winds of scandal have passed, faculties will do and achievement of student athletics, structures can better than they historically have. be found to accommodate this concern. Thus, it is One view of the role of faculty governance in ath­ likely that there are other, more substantive reasons letics offers little reason for optimism over the long why faculties have tolerated the considerable distance term. A variety of factors, including the highly com­ that many athletic programs have put between them­ mercial nature of athletics, work against an effective selves and their universities' core academic function. governance function by faculty members. There is A search for alternative explanations suggests little evidence that universities are prepared to change several points that warrant attention. this business orientation in athletics. Thus, the persis­ tent tension with the university's educational goals is The Different Nature likely to continue. This raises the prospect of a regu­ of a Major Athletics Enterprise latory role for the faculty that is extremely time con­ Big-time athletics-again mainly football and suming and that holds limited prospects of success. basketball-have taken on a distinctive characteristic A more fruitful alternative for faculties would be in recent years. At many schools, the athletic depart­ to urge that the basic structure of college sports be ori­ ment operates as the entertainment division of the uni­ ented to reduce its conflict with the university's edu­ versity. Largely as a result of the impact of television, cational goals. Two changes offer particular promise. big-time programs now produce events that compete One involves eliminating the present university mo- with a variety of other offerings in the entertainment VOL. 6, NO. 2 / 11

market. Increasingly, decisions are made with a view A more fruitful alternative for facul­ to insuring the suitability of the end product for broad­ ties would be to urge that the basic cast purposes. Most of the large football and basketball programs structure of college sports be oriented operate at a substantial profit, largely due to the impact to reduce its conflict with the univer­ of television. A trip to the Final Four in the NCAA basketball tournament pays each participating school sity S educational goals. over one million dollars, an amount greatly in excess of the operating expenses of the typical program. bly "bottom-line" oriented and have little experience When revenues from the conference television pack­ in insuring commercial success in highly competi­ age, national telecasts, and ticket sales are added, a tive markets. Indeed, the best of faculty values­ three to one ratio of revenues to expenses is not un­ deliberateness, a liberal concern for the treatment common in basketball. In football, with postseason of individuals, and an openness that encourages the bowls paying out a total of more than fifty-six million accommodation of differences-are antithetical to the dollars, profits of two to four million dollars in a single common ingredients of profitable business ventures. program are often attained. Athletic personnel may thus come to feel that fac­ Such levels of profitability are not assured, of ulties have little to say about athletic policy that will course, and continued success requires very astute, very be useful. For their part, faculties may have a natural pragmatiC decisions about a variety of entertainment­ reluctance to venture into areas where they will be related issues, including how to increase the size of neither welcome nor particularly effective. In the same the regular season television audience and how to vein, the trustees and presidents who determine or­ select opponents so as to attract the attention of the ganizational structure often take account of the lack bowls with the most lucrative broadcast contracts. Not of synergy in this match and develop lines of authority surprisingly the entire orientation of the athletic depart­ that insure that it does not occur. There is little to ment adjusts to accommodate the demands of pro­ suggest to them that the success of the entertainment ducing a successful-that is, profitable-entertainment product will be enhanced by the opposite arrangement. product. For the people who run the division, a strong business orientation is a necessity. Increasingly suc­ The Risk of Being Co-opted cess within the profession of athletic administration A second problem is that faculties involved in ath­ is judged primarily, although not exclusively, by the letic policy making appear to run a particular risk of dollar results an individual produces. being co-opted into a lenient, if not overly favorable, This athletics-entertainment venture is carried on view of the demands of the athletic department. While in an environment that is unusually competitive. Col­ this is hardly inevitable, it does occur with sufficient lege athletics stands in sharp contrast to profeSSional regularity to suggest that a truly independent faculty sports in this regard. Revenue-sharing and fmancial governance role in athletics may be very difficult to support for weak competitors are the hallmarks of achieve. successful sports leagues. The worst NFL team gets Various devices presently in use are intended to as much from the league's lucrative national television preserve a role for the faculty in athletics matters. Each contract as does the best. Quite the oppOsite situation NCAA school has a "faculty representative," for exam­ is found at the college level. The greatest rewards from ple. Rarely, though, is this position reflective of care­ television go only to the most successful programs. fully gauged faculty sentiment. Direct election of the These are typically the programs prepared to pay the "faculty representative" by the faculty is rare if not most for recruiting, facilities, coaches' salaries, and nonexistent in big-time programs. More typical is the promotion. And the most successful teams have the situation in which the person is designated by the most to spend. The operative principle seems to be univerSity president after informal approval by the that a school must spend to win and must win to athletic department. Seldom are NCAA votes subject spend. Each new lucrative broadcast arrangement to systematic faculty review: For all of these reasons, ups the ante and invites an expensive response. the faculty voice in NCAA matters has historically The values important in these ventures are quite been neither loud nor distinctive. different from those that typically come into play in Many schools have an athletic committee or similar faculty governance decisions. Faculties are not terri- entity that provides the occasion for faculty involve­ ment in deliberations on athletically related issues. Again, at big-time schools, the faculty participation A variety offactors) including the on these bodies has not been noted for its indepen­ highly commercial nature of athletics) dence. Indeed, such bodies existed at most of the schools that have experienced major scandals in work against an effective governance recent years. function by faculty members. The loss of independence by faculty members involved in athletic oversight is difficult to avoid. As DUKE LAW MAGAZINE / 12

As many of the recent in-house reform effective faculty involvement in athletic matters or in terms of other institutional controls to prevent a re­ efforts confirm, when faculty assert a currence of the problems of the past. strong interest in the treatment and There will certainly be some short-term improve­ ments. Almost every school that has looked at its ath­ achievement ofstudent athletics, struc­ letic problems has agreed that standards should be tures can be found to accommodate raised for the admission of athletics and that the em­ barrassing graduation rates of the past should not con­ this concern. tinue. Moreover, in several schools, the individuals responsible for prior academic misdirections were already noted, "insuring athletic success" is often the unmasked and their associations with the university stated goal of committees involved in this work and ended. And, in almost all cases, the mechanisms for in the modern environment that means heeding the institutional control were strengthened. demands of an external marketplace. Athletic depart­ But serious problems are likely to remain. A re­ ment personnel will consistently speak more authori­ view of the recent internal reform efforts will reveal tatively on these matters. that, despite the wide array of matters subjected to Other features of work on athletic committees reconsideration, little or nothing has been done to present temptations not found elsewhere in university address the fundamental cause of the recent scandals­ service. Offers of favorable seating at popular events, the competitive pressures created by commercializa­ school-paid trips to postseason contests, and the op­ tion. Virtually every school that has endured severe portunity to rub elbows with celebrity coaches and academic embarrassment has emerged from its self­ players will inevitably have the effect of reducing crit­ study continuing to embrace implicitly, if not explicitly, icism and encouraging accommodation. This will be the notion that its athletic programs will be "competi­ true even when these special rewards for committee tive." In the present environment, this means that the service are wholly benign. Combining this bit of hu­ cycle of spending to win and winning to spend will man nature with a selection process that favors can­ continue. didates who have a sympathetic orientation to the If the evidence of the recent past is taken as a athletic department, the mildness of the regulation guide, such an orientation will present a considerable undertaken by university athletic committees is not threat to the goals of academic rigor and integrity. Even surprising. where academic standards for the athletic department have been raised, the new standards are likely to be subjected to considerable downward pressures. As The Modest Professional Rewards several schools have already learned, there will almost for Effective Oversight always be competitors willing to admit less-qualified Few incentives encourage a faculty member to athletes. Thus, a pledge to remain competitive com­ engage in rigorous examination of athletic department mits a school to a course in which the determinants policy. A promising career in English, physics, or geol­ of success are frequently being influenced by the pref­ ogy is not likely to be advanced by correcting the erences of the lowest common denominator. defects of a big-time sports program that enjoys wide The decision to stay in the athletics arms race also support on and off campus. Moreover, the task will means that the basic entertainment orientation of the seldom be either easy or abbreviated. In short, the athletic department is not likely to change. It can be absence of professional rewards for university service hoped that personnel antagonistic to the academic in the overSight of athletics, the athletic department's coolness to such a role, and the strong incentives to mind one's own business in academia combine to Few incentives encourage a faculty discourage vigorous faculty involvement in reviewing member to engage in rigorous exami­ athletic department policy. Indeed, for those who are most promising in their academic endeavors, probing nation of athletic department policy. the athletic department may be among the least ap­ A promising career in English, physics, pealing of administrative asSignments. Almost all of the schools beset by major scandals or geology is not likely to be advanced in recent years have undertaken elaborate self-studies. by correcting the defects of a big-time The end result is typically a thorough report and a list of recommendations addressing a variety of re­ sports program that enjoys wide sup­ forms. Increased academic standards for athletes and port on and off campus. Moreover; closer institutional oversight of the athletic policy are commonly urged. The question can reasonably be the task will seldom be either easy or asked whether these reform efforts provide reason abbreviated. for optimism about the future, either in terms of more VOL. 6, NO.2 / 13

function of the university will be eliminated and that In short, the absence ofprofessional more attention will be given to the athletes' classroom endeavors. But at the bottom line is a bottom line. rewards for university service in the Even allowing for the many good athletic directors oversight of athletics, the athletic de­ who will execute their functions as their universities dictate, we should not be surprised to fmd that diffi­ partment's coolness to such a role, and culties of the past reappear. With two-million-dollar the strong incentives to mind one's bowl games and one-million-dollar basketball tourna­ ments at stake, there will be great pressure to shave own business in academia combine off the subtle edges of academic preparedness and to discourage vigorous faculty involve­ substantive achievement. Again, over time some ath­ letic departments will likely conclude that academic ment in reviewing athletic department minimalism enhances their ability to compete. policy. Just as the basic orientation of the athletic depart­ ment is unlikely to change, so are incentives for fac­ ulties to become involved in a sustained effort at over­ The NCAA is the logical group to provide the sight unlikely to increase. The faculty will continue necessary legislative response. However, despite four to be ill-equipped to evaluate claims of necessity in a years of repeated scandals, the NCAA has taken little profit-oriented venture. As in the past, the faculty is action. The movement of this body has been so halt­ apt to fmd itself deferring to the judgments of those ing as to raise doubts about its basic resolves. While who are more knowledgeable and who have more at there is no particular reason to assume that the NCAA stake. In addition, the occasions for reducing faculty will take a new direction, the matter of resolve is one independence will persist. And ultimately, the same that can be affected by the actions of the constituent low level of professional reward that has been evident members. Thus, an appropriate first step for a con­ in the past will attend future efforts at oversight, par­ cerned faculty would be to assert a more active inter­ ticularly as recent embarrassments fade. Thus, while est in how their institution's votes on NCAA matters things have changed, they have in many respects re­ are cast. mained the same. But the NCAA is not the only forum available. In The time has come to reconsider the agenda for the event of continued inaction by that group, other college sports reform. To date, the prevailing assump­ outlets for concern will become increasingly attrac­ tion has been that what is needed is mainly a tight­ tive. An enhanced role for education accrediting or­ ening of the rules. By and large, the basic structure ganizations is properly explored. Most of these groups of big-time sports is left unaffected. These features presently have authority to review the academic per­ seem inevitably to lead to a more time-consuming formance of any component of the univerSity, includ­ regulatory role. ing the athletic department. Much could be done to A more positive approach would seek to modify increase their role. A clear statement of academic stan­ the structural features of big-time sports that create dards, meaningful reporting of academic statistics, undue pressures for the academic program. Rather and the threat of suspension of accreditation offer than seeking to increase the degree of control that the promise of an alternative that avoids the limita­ has to be exercised by faculties and others, this dif­ tions of unilateral action. ferent agenda would undertake to reduce the need Perhaps the ultimate forum for collective action for intense oversight. Reform would be undertaken is Congress. While college sports have historically with the specific intention of introducing economic enjoyed something approaching legislative immunity, forces more naturally complementary to the univer­ sity's educational goals. In redirecting the present debate, attention should Virtually every school that has endured be given not only to the substance of proposals for change but also to the matter of how change will be severe academic embarrassment has achieved. Any internal, single-campus reform is des­ emerged from its self-study continuing tined to be ineffective in stemming the influences of commercialization in college sports. For a school that to embrace implicitly, if not explic­ plans to operate a visible program, unilateral disarma­ itly, the notion that its athletic pro­ ment simply will not work. As noted, the intensity of the economic competition and the tools necessary to grams will be "competitive. JJ In the engage in it will in large measure be dictated by forces present environment, this means that beyond the individual campus. Thus, if truly effective reform is to occur, it must be in a different forum, the cycle of spending to win and win- specifically one that has authority to impose collec­ ning to spend will continue. tive controls. Several alternatives are available. DUKE LAW MAGAZINE / 14

A more positive approach would seek taking to execute more effectively a regulatory effort that presently receives only half-hearted attention. to modify the structural features of The NCAA has a number of rules ostensibly intended big-time sports that create undue pres­ to equalize the competitive positions of a large range sures for the academic program. of schools. Thus, there are limits on the size of team rosters, the size of coaching staffs, and the permissi­ ble number of athletic scholarships. But to legislate this situation may be changing. In recent years, vari­ parity only on these matters is almost certain to be ous bills have been introduced to address the ills of ineffective as a control on competition. No spending college sports. A continued failure of self-regulation controls presently exist for many other items that by the NCAA increases the plausibility of this type of contribute to a school's competitive position. These response. And the antimonopoly fervor in Congress include training and playing facilities, promotional in recent years suggests that such legislation might expenses, salaries, student housing, and a long list well take a different view of the economic ground of other items. Not surprisingly, with only a part of rules of preprofessional sports than does the NCAA. the expenditure budget subjected to regulation, the The issue of where further deliberation should pursuit of competitive advantage fmds ample alter­ occur is a procedural one. On the substantive side, native avenues through which to express itself. The the focus should shift from debates about merely incompleteness of the present economic regulation tightening existing rules to a discussion of changing invites a corrective response in the form of more the basic structure of college sports. Two areas in extensive budgetary controls. particular offer the prospect of relieving the univer­ A second structural issue warrants attention. At sity's educational venture from much of the pressure the present, a rather unnatural link exists between that athletics presently creates. academics and athletics at the post-high-school level. First, the athletics arms race is not inevitable. A A promising high school basketball or football player range of choices is in fact available that will ameliorate who wishes to secure further training effectively has or eliminate it. Revenue sharing would offer the most no choice but to aspire to a four-year degree program. complete tempering of the inclination toward com­ Moreover, the athlete must be a full-time student; part­ mercial excess in individual programs, a lesson well time status is insufficient for eligibility Other pro­ learned by professional sports leagues. Schools would gram options-community college, technical school, still receive the public recognition that attends suc­ corporate sponsored teams, and minor leagues-are cess in championship events. But there would be no unavailable. In what must surely be one of the great disproportionate financial bonanza for that outcome. non sequiturs of our society, we tell promising ath­ Television rights, fees, and the like would be distributed letes in the two most popular high school sports that among a wide group of participants, perhaps all who to get further physical training they must also embrace participate at a particular level of play. our most advanced form of post-high-school degree. The basic objective of a revenue-sharing arrange­ Thus, 100 percent of football and basketball play­ ment would be to eliminate the pressures for bending ers are required to choose an arrangement that only academic and athletic rules that arise in the present roughly thirty percent of their nonathlete peers select. environment. As occasional ups and downs in pro­ Moreover, this limitation is not imposed on other as­ grams would carry no particular toll, most of the re­ piring athletes. Those interested in baseball, hockey, cent by-words---':'win at any cost," "eligibility rather golf, and tennis all enjoy sports options not tied to than real education," and the like-would lose their education, let alone a full-time four-year education. justification. Winning would, of course, still be im­ The contrived nature of the present structure portant. But other values would become much more should be a particular concern of faculties. A good ready competitors because fmancial outcomes would deal of available evidence-including the experience have been made independent. of baseball players who can choose between college While revenue sharing is an anathema to many and minor leagues-suggests that perhaps as many athletic administrators, those who take a broader view as one-half of present college athletes in football and of university budgets may fmd it quite attractive. The vast majority of schools offering major sports programs would be better off under such an arrangement, for While college sports have historically it offers the unavoidably attractive prospect of both enjoyed something approaching legis­ enhancing revenues and reducing expenses. In addi­ tion, it promises a stability for the future that cannot lative immunity, this situation may be assured in the present environment, in which only be changing. In recent years, various wirmers are rewarded. If control is not exercised over revenues, then the bills have been introduced to address next logical step is the control of expenditures. In this the ills of college sports. area, further reform could simply involve an under- VOL. 6, NO. 2 I 15

basketball would not choose the collegiate option if At the present, a rather unnatural good alternatives were available. Thus, educationally it appears that we may be forcing square pegs into link exists between academics and round holes. At the minimum, many of the athletes athletics at the post-high-school level. are likely to have their attention focused elsewhere. Colleges, of course, cannot be expected to bear A promising high school basketball or the full burden of establishing noncollegiate options. football player who wishes to secure But that does not mean that universities and their faculties are powerless to influence the present mo­ further training effectively has no nopoly. In fact, universities have done much to per­ choice but to aspire to a four-year petuate the existing arrangement. Faculties that wished to be relieved of the tensions created by the present degree program. compulsory relationships would seek to modify the NCAA rules that sustain them. temporary. However, the frequency of their occurrence A variety of changes could be considered. The and the presence of very powerful economic forces mildest alternatives would change existing rules on that reward low academic aspiration suggest that the eligibility At present, the NCAA embraces an extremely causes are much more basic. Something other than a narrow view of amateurism. For the mere receipt of mere lack of attentiveness appears to be involved. This fifty dollars in compensation money, even for an ap­ awareness counsels in favor of a greater boldness in pearance in a perfectly legitimate competition, a young the debate on college athletics than we have seen athlete can be denied collegiate eligibility In a world to date. in which educational values come first, the goal would Specifically, the time has come to ask whether it be quite different: athletes would be encouraged to is athletic success that is valued or the large dollars test their semiprofessional and minor league oppor­ that increasingly attend it. The former has a role that tunities before deciding on whether to go to college. can be comfortably accommodated at a university An exploratory period of perhaps two years would Profit making, particularly as a part of an intense com­ be allowed. Those who later enrolled in a university petitive market, fits much less well. The opportunity presumably would have a more focused interest in to separate athletics from excess does exist. Whether the educational opportunity that was available. By it is pursued is a matter over which the entities with the same token, since the university would no longer the most at stake-the universities themselves-have be the exclusive vehicle for post-high-school athletic considerable control. training, it could reasonably demand that its athletes approximate the educational achievement of other students. It is diffiCUlt to imagine that a faculty Conclusion at a serious university would tolerate This article can end where it began, with a refer­ ence to the shockingly low graduation rates achieved the continuation of an academic pro­ in several big-time athletic programs. It is difficult to gram in which, for every student who imagine that a faculty at a serious university would tolerate the continuation of an academic program in graduated, nine others did not. Tht, in which, for every student who graduated, nine others several athletic programs these levels did not. Yet, in several athletic programs these levels of failure, and some even worse, were endured. offailure, and some even worse, were We would be reassured if we could believe that endured. these institutional lapses were only inadvertent or DUKE LAW MAGAZINE I 16 A Conference Report Emerging Framework of Civil Law in China

Duke Law School and Associate Professor of History at North Carolina State University. Scholars and practitioners from China (Four schol­ ars from China were able to attend under a generous grant from the Ford Foundation.), the United States, and Hong Kong attended the conference, presenting not only the fmdings of the most recent research, but also, in the case of Professors Tong Rou and Zhao Zhongfu, the views of participants in the drafting process of the new civil laws. The morning session of the first day of the confer­ ence explored the birth and evolution of the General "Emerging Framework Principles of the Civil Law. Tong Rou, Professor of of Civil Law Law, at People's University in Beijing, began the con­ ference with his presentation of the "Origins, Special in China" Characteristics, and Role of the General Principles of the Civil Law." Tong's work explains the hierarchy of fundamental law (the Constitution), basic law (regulat­ A Conference at ing certain aspects of social relations), and specifically Duke Law School enacted law (subordinate to basic law). According to Held under the Auspices of Tong, the General Principles of the Civil Law serves Law and Contempo~ Problems as basic law regulating the property and personal re­ October 2-3, 1987 lations between equal subjects. The General Principles of the Civil Law will playa major role in China's eco­ nomic reforms by reaffirming basic property relation­ ver the last eight years, the Chinese gov­ ships between the State and "enterprise legal persons" ernment has attempted to reduce its direct and by strengthening these State enterprises. interference in economic life by eliminating The presentation by Tong Rou, a major participant O or loosening restrictive policies, permit­ in the drafting of the General Principles of the Civil ting greater autonomy of decisionmaking, and en­ Law, was followed by critical examination of the the­ couraging new forms of organization. To foster and oretical underpinnings of property rights in the Gen­ to regulate this "socialist commodity economy" (or eral Principles by Edward Epstein, Lecturer in Law at "unified socialist market economy"), which is charac­ the University of Hong Kong. Professor Epstein argued terized by increasing horizontal and voluntary relations, that notwithstanding any special "Chinese character­ China has established a growing body of civil law, istics" that might be found elsewhere in the civil law, highlighted in April 1986 and January 1987 by, respec­ its theoretical framework for legal relations is firmly tively, the passage and promulgation of the General rooted in the Romanist legal tradition as interpreted Principles of Civil Law. On the second and third of by the Pandectists (German legal theorists committed October 1987, this "Emerging Framework of Civil Law to the systemic study of Roman law) and borrowed in China" served as the subject of a symposium spon­ from them by Japanese and Chinese theorists before sored by Law and Contemporary Problems and Duke 1949. And, while the property rights defmed in the Law School. Papers presented at the symposium will General Principles are "based on a mixed system be published in volume 51 of Law and Contemporary of public and private ownership," Chinese civil law Problems under the special editorship of Jonathan K. scholars analyze them with the same theoretical tools Ocko, Adjunct Associate Professor of Chinese Law at as their counterparts in capitalist countries. VOL. 6, NO.2 / 17

Theoretical controversies over basic property no­ legal person is elusive and somewhat circular. How tions still exist, however, particularly in regard to the does a foreign corporation know if an enterprise with nature and extent of property rights vested in the State which it is dealing has the legal capacity to assume enterprise. Epstein asks if the rights purportedly vested enforceable obligations? The answer is that in order in these State enterprises are "real rights" vested in to assume the obligations, the State enterprise must the enterprise which can thus control State property be a legal person. But whether a State enterprise is to the exclusion of even State administrative interven­ a legal person depends, in part, on whether it can as­ tion. Are the rights merely an authority to use public sume independent obligations. Zhao explained that property as directed by the State? Is ownership shared the determination turns on the sufficiency of ftxed by the State and the enterprise? The lack of a clear assets and working capital of the enterprise. Whitmore theoretical basis for State enterprise property rights, Gray, of the University of Michigan Law School, argued Epstein suggests, is an obstacle to a complete reform that this leaves the westerner in only a scarcely better of China's economy position since access to this information is difficult at In an attempt to educate Americans of the histori­ best. Wang Liming discussed the operation of the State cal context in which present reforms are taking place, enterprise in China today along with proposals for Gao Xi-Qing, a graduate of the University of Interna­ alternative organizational forms for this important tional Business and Economics in Beijing and recipient actor in the Chinese economy of a].D. degree from Duke Law School in 1987, pre­ Phyllis Chang, an LL.M. candidate at Columbia Uni­ sented his paper, "The Educational and Ideological versity, presented a paper on "Law and Policy in the Background of Chinese Lawmakers." Gao believes Development of the Rural Production Responsibility that many of the corporate executives who are swarm­ System and the Resolution of Responsibility Contract ing to China to capitalize on the economic revolution Disputes." Chang uses the rural production responsi­ will be profoundly disappointed. While the business­ bility system, the centerpiece of agricultural reorgani­ men and lawyers who deal with China are now better zation and revitalization, as an illustration that Chinese prepared in Chinese language and law than others leaders use poliCies as well as laws to implement cer­ who previously failed, most fail to comprehend the tain economic reforms. Additionally, in adjudicating education and culturalization of the various actors civil disputes, courts may base their decisions not in the Chinese economy only on promulgated laws, but also on non-statutory The afternoon session was devoted to organiza­ legal principles, poliCies, opinions of administrative tions and obligations under Chinese civil law. Fang organs, and their own sense of fairness. Liu Fang of the law department of People's University The following day, James Feinerman, Associate in Beijing began with an examination of Chinese part­ Professor at Georgetown UniverSity Law Center, dis­ nership. The 1980's have seen a resurgence of partner­ cussed banking and securities in China. Professor ships in China after a period of hibernation. Today, Feinerman claims that the assumptions behind the the law of partnership is scattered throughout the past ten years of economic and legal reforms in China General Principles and a number of other economic have been rooted in the belief that creation of a legal regulations and reforms. The laws and regulations regulatory mechanism can engender the very insti­ regulating partnerships are of paramount importance, tution which the law has been created to regulate. for provisions which conflict with these laws or reg­ Thus, China has liberalized its ftnancial markets be­ ulations are unenforceable. Unlike in the United States fore the markets even existed. Such instances of the where great deference is given to the agreement of tail wagging the dog have led to certain shortcomings the parties or where "gap-fillers" from the Uniform in banking and securities laws such as the question Partnership Act are utilized, Chinese partnership agree­ of whether State-owned enterprises may issue shares, ments must carefully adhere to specific provisions of questiOns of the role of specialized banks the statutes the law. Conference participants disagreed as to the and the Validity of new fmancial instruments, and the legal effect of an oral partnership agreement. The de­ powers of the non-bank fmancial institutions. More bate focused on whether under the law a partnership troubling is the conflict of interest arising from the agreement "must" or "should" be in writing. Fang dual role of the People's Bank of China in controlling explained that an oral agreement would most likely the banks which make loans to Chinese enterpriSes be VOidable, but not void. while controlling those enterprises' access to other Another form of economic organization, the State parts of the capital market. enterpriSe, was the subject of two papers, "The State All the presentations at the conference were dis­ Enterprise as a Legal Person" by Zhao Zhongfu, As­ cussed fully in both English and Chinese. The papers sociate Professor of Law at People's University, and will all be published in English due to the translation "The Property Rights of the State Enterprise" by Wang efforts of Professor Ocko, Hing Pitney, and current Liming and Liu Zhaonian, both instructors at People's Duke law students from the People's Republic of China. University Zhao's work outlines the requirements and The author; Marc Golden '88, is Project Editor capacities of legal persons under Chinese law. Some Jor the Law and Contemporary Problems symposium, participants expressed a belief that the concept of the Emerging Framework oj Civil Law in China.

VOL. 6, NO.2 / 19 Deanship Transition

President Brodie and Provost Griffiths introduced Dean Gann at a press conference on May 10, 1988.

Pamela B. Gann, professor a student at Duke. After graduation, University of Michigan and the Uni­ of law, becomes dean of the Duke she worked as an associate at the versity of Virginia. She has taught University School of Law, effective law firm of King & Spalding in . internationally in Paris, France; july 1, 1988. Gann's appointment Atlanta before becoming an asso­ Copenhagen, Denmark; Changchun, will mark a number of firsts for the ciate with Robinson, Bradshaw People's Republic of China; and at School of Law. She will be the first & Hinson, PA. , in Charlotte. The Salzburg Seminar in American woman, North Carolina native, Duke In 1975, she joined the faculty Law and Legal Institutions, Salzburg, Law graduate and previously prac­ of the Duke School of Law as an Austria. She has been an Interna­ ticing lawyer in North Carolina to assistant professor. She was pro­ tional Affairs Fellow of the Council serve as Law School dean at Duke. moted to associate professor in 1978 on Foreign Relations, spending the In announcing the appOintment, and to professor in 1981. Gann's fellowship period at the International Duke President H. Keith H. Brodie teaching and research fields include Monetary Fund and the Office of praised the new dean as 'Cl highly federal income taxation and inter­ the Us. Trade representative. She qualified legal scholar and highly national business transactions. She continues as an active participant capable leader: Truly, she was the has pursued professional activities in the activities of the Council on right choice for all the right reasons. " in the area of taxation, including Foreign Relations. Gann replaces Gann is a Phi Beta Kappa membership on the Board of Direc­ Paul Carrington, who has served graduate of the University of North tors of the New York University/ as dean of the School of Law for Carolina at Chapel Hill, where she Internal Revenue Service Continuing the past ten years. Carrington, who received her undergraduate degree Professional Education Program, will be a visiting professor next year in mathematics. A 1973 honor grad­ the Tax Committee of the American at the University of Michigan, the uate of the Duke School of Law, Association of University Professors, University of California at Berkeley Gann was elected to the Order of and the International Fiscal Asso­ and the University of Texas at Austin, the Coif and served as articles edi­ ciation. While at Duke, Gann has will remain a member of the Duke tor for the Duke Law Journal while held visiting appOintments at the Law faculty. DUKE LAW MAGAZINE / 20

mony. Faculty, students, and parents, he noted, participated in a formal Upon Accepting the Deanship ceremony on Sunday in which the overwhelming emotional elements of Duke Law School* were the goodwill and morale of the participants toward one another and the School. This goodwill and I am pleased to be the next Notwithstanding these observa­ morale are the product of a self­ dean of Duke Law School. I take tions, I anticipate that being the confident and mature institution. advantage of the occasion to make Dean of this Law School will be Third, we have the opportunity some rather serious, but fairly brief, immediately enjoyable, because it is to do something quite concrete and remarks. a very opportune and interesting tangible during the next five years­ Although pleased to be the new time to be here for several reasons. through our planned building proj­ dean, it is fair to say that I did not First-because of my predecessor ect to reconstruct, enlarge and, not seek out this position, which seems Paul Carrington. Duke Law School least of all, improve the aesthetics to be a shared faculty attitude toward has for some time been viewed as of the Law School building. Improv­ deaning. I do not mention that I among the best law schools in the ing the Law School building and did not seek this job for reasons of United States. Rankings aside, many providing additional chaired profes­ modesty but to emphasize some­ of us know that Paul Carrington's sorships, and student fmancial aid, thing that is true about deans, pro­ leadership has caused this Law School are without doubt the primary goals vosts, and presidents of the best to be a qualitatively better institution to be achieved over the next five institutions of higher education in than when he arrived. He will be years. The total fund raising goal the United States. We all are drawn particularly identified with the fac­ for these efforts is substantial­ to the University because we are ulty that he has attracted to the about $20 million. partakers in its core functions-that school. During his ten years as Dean, Finally, I look forward to this of research, writing, and teaching. by my count, he hired thirteen of administrative asSignment because It is typically with reluctance that its present twenty-nine-member fac­ of the Law School's relationship to we give up these activities to ad­ ulty, or nearly 45 % of it. He will the University as a whole. Although minister the schools or institutions also be remembered for the inter­ it is something that we in the law that provide us the opportunity to disciplinary and international dimen­ may not like to acknowledge, it is in­ carry out and enjoy them. It is par­ sions that he added to the faculty, teresting to observe, from a wholis tic ticularly difficult for a law professor students, and curriculum. These down to a unit analysis, that several of my age to switch to an adminis­ factors-the faculty, and interdisci­ of the very best universities in the trative role in the University. It is plinary and international studies­ United States achieve their excel­ often reputed that brilliant mathe­ are all viewed as critical measure­ lence without the presence of any maticians fmd the proof for a sig­ ments of the excellence of a law Law School! President Brodie's un­ nificant theorem by the age of 25; school. By these measures, Paul dergraduate alma mater-Princeton perhaps, then, it may be somewhat Carrington departs his Deanship University-iS perhaps the most easy for them to think about be­ with the confidence of a job well elegant illustration of this fact. But coming an administrator. In any done. it is equally interesting to reverse event, few law professors are ever Second, the Law School and its the observation from the unit up referred to as brilliant at any age. constituents have a strong sense of to a wholistic analYSis; The best law Whatever they have to contribute self and belief in what they are ac­ schools, including this one, are ex­ to scholarship about the law, it is complishing as an educational insti­ cellent units within equally excellent likely to be more significant and in­ tution and for the legal profession. universities. I challenge you to sug­ formed by age and experience in It is evidenced, for example, in the gest a single law school among the the law. Thus, I believe that I give faculty's scholarship and partiCipa­ top tier of law schools which is not up something important about be­ tion in political events like the Bork associated with an equally top tier ing a law professor at this age to nomination, in the outstanding ad­ University. We are not only a fme assume this position. missions and placement statistics, and confident Law School whose and in the comraderie of the facul­ individual achievements are many; ty and staff. But I can think of no but we are a unit within an equally better illustration of this fact than fme and mature University. This * This is a revised version oj remarks the comment of one of our gradu­ mutuality of excellence will assure made by Pamela Gann at the press ates at this year's commencement. our mutual success over the next conJerence at which President H. He stated to me that the Law School five years. I look forward to partici­ Keith H. Brodie announced her graduation had been a particularly pating with you, my friends, in appointment as dean oj Duke Law meaningful event-much more mean­ these shared successes. School. ingful than his undergraduate cere- Pamela B. Gann VOL. 6, NO.2 / 21

of such things: the sort of person one most often desires to attract as one's dean is very often the same person already enthusiastically en­ gaged, and therefore least likely to • want to respond. The deanship at any law school tends to be a con­ suming task. The deanship here is assuredly no exception. While we were eager to attract him, we knew the problems of being the dean (mainly, a great deal more work, not a great deal more pay). Still, half to our surprise, he did accept, and when he accepted, we were embarked on the Carrington years.

Setting the Course The mark of the Carrington years at Duke is clearest in the school's much more complete maturation and cosmopolitan growth as a pro­ fessional school. It is not reported in student numbers; these are, and will remain so far as we can man­ age it, at near flve hundred places. Rather, it is strongly and differently reported in the complexion and completeness of the school itself. In respect to its curriculum, for instance, the school already offered seventy-four different courses a dec­ ade ago, and drew students from The Carrington Years virtually every state. Nonetheless, one hundred and seventeen different of Duke Law School (1978-1988) courses now comprise the current list of offerings, many extended Supreme Court epochs are often his credit, and his highly successful across disciplinary lines. Thirteen remembered eponymously, usually civil procedure casebook was just new faculty (tenure and tenure­ by the name of the Chief Justice then entering its second edition. track faculty) have joined us during who left some special mark on the He was also just flnishing his thir­ the Carrington decade. The num­ Court. The same mnemonic associ­ teenth year on the Michigan Law ber of faculty on extended appoint­ ation may also measure a particular faculty. He had been Research Pro­ ment (that is, appointments of more law school, as I think it now does fessor at Columbia, visiting professor than a year's duration) has increased at Duke. As Paul Carrington com­ at six other law schools, and, earlier from twenty-nine to forty-flve. The pletes a decade of service as Dean still, on the regular faculty at Wy­ full teaching faculty has grown even of the Duke Law School (the longest oming, Indiana, and Ohio State. A more, expanded from forty in 1977, term anyone has served since Jack member of the American Law Insti­ to seventy this last year. Latty held the post), we should note tute since 1966, an A.B.A. Section The Carrington initiative has just what those years have meant. chairman for four years, an A.A.L.S. stretched across disciplines and Here, then, in sketchiest report, is a Project Director, an American Bar across continents. John Hope Frank­ brief Note on the Carrington years. Foundation Study Director, Federal lin joined Duke during this time Judicial Center AdvisOry Council from the University of Chicago and Coming Aboard founder and member, and actively has shared law school courses in In accepting the Duke faculty's engaged AAUP and ACLU counsel legal history, as has also William invitation to assume the deanship, he was, as one says, "going strong." Leuchtenburg, formerly of Colum­ Paul Carrington left Ann Arbor for Paul was by far the Duke faculty's bia, and currently at Chapel Hill. Durham, in 1978. Carrington already flrst preference for Dean, but we Stanley Fish (English), Peter Fish had more than twenty articles to were caught in the usual paradox (Political Science), Martin Golding DUKE LAW MAGAZINE / 22

(Philosophy), Daniel Graham (Eco­ alumni regularly to one another with the same discipline and the nomics), Jonathan Ocko (Chinese and to Duke far more substantially same integrity one should want to legal history) and Neil Vidmar (Law than we had previously managed be able to rely upon, even as a and Social Science), are additions to do. The Duke Law Magazine it­ shoemaker would bring to his pri­ during the Carrington years. Patrick self, incidentally, is an invention of vate workbench, and never produce Atiyah (Oxford), Guy Haarscher the Carrington years. shoddy goods. And, characteristically, (Belgium), Upendra Baxi (India), Duke's comparative law program Paul made the point just four years Koichiro Fujikura Oapan), and Arnold in Denmark is a Carrington initia­ ago, in a brief essay he wrote, in Enker (Israel) reflect Paul's interna­ tive, now entering its third year, 1984. It provides a last appropriate tional curricular impact, as do our and going very well. The Private word on his own decade as dean, several viSiting colleagues from Adjudication Center, introduced as we now welcome him into the Canada, at least one of whom is wholly on his initiative, has also faculty, a year hence. here almost every year. been fitted into place. His personal His essay, titled "Of Law and The Carrington intellectual im­ energy also brought the Alaska Law the River," took some few pages print is also evident in the large Review to the Law School, implausi­ and a great lesson from the writings number of foreign students now in ble as it might geographically have of Mark Twain. Twain was writing attendance at Duke. Currently, they seemed. It was just five years ago of a master riverboat pilot, Twain's are in residence from sixteen coun­ that Paul travelled personally to An­ own mentor, Horace Bixby, in his tries, including twelve students from chorage to persuade the Alaska Bar Life on the Mississippi. Paul's own the People's Republic of China (where Association that Duke, rather than a essay was titled "Of Law and the the dean has taught personally), far closer school (the University of River," yet it was really on the very four from the Republic of China Washington, Seattle) would be the same thing that Twain was remem­ (Taiwan), four from Canada, four logical place to have it done. That bering of his life on the Mississippi from Japan, and others from places journal is now an extremely well and of what ultimately impressed as distant from one another as New run publication, published by a him about Bixby. It was simply, the Guinea, Greece, Venezuela, and first rate student staff. As a comple­ enduring importance of the example Denmark. ment to the Duke Law Journal and one sets by the quality and care of As a frequent participant at fed­ to Law & Contemporary Probl~ one's work. eral circuit court conferences, as it shows the dean's initiative at its He has not thought of the com­ well as Reporter for the Advisory best. parison consciously, I am sure, but Committee on Civil Rules for the each time Paul returns to the Twain JudiCial Conference of the United Knowing The River story before a new audience (as he States since 1985, Carrington also and Knowing Oneself often does), when he calls up Horace succeeded in enlisting a number of With all these Carrington devel­ Bixby to make a certain point, for notable federal judges into the law opments, however, Duke remains many of us he is actually reminding school courses on professional and most emphatically a thoroughly us of things altogether applicable appellate advocacy. Rotating resi­ professional school, a place for not just to Twain's unforgettable dencies of judges from the courts training first class lawyers through mentor on the Mississippi River, but of appeals currently include Harry a recognizable core curriculum, an things we all believe are equally Edwards (D.c. Circuit), James Oakes emphasis on difficult classes, graded applicable, equally true, and equally (2d Circuit), John Gibbons (3d Cir­ work, legal research, strong disci­ admirable in his own case, during cuit), Dickson Phillips (4th Circuit), plined habits, a straightforward life his years as our colleague and our James Logan (10th Circuit), and Alvin in the law. In a word, those who dean. He set the example of integrity Rubin (11th Circuit), and Daniel went to this school when Lon Fuller, and work here. It is what we shall Friedman (Federal Circuit). Douglas Maggs, or Brainerd Currie doubtless remember best. The last Carrington's administrative sig­ taught here, or when Jack Latty ten years have been an important nature has written its own history helped shape its faculty, would still decade in the growth of this national­ in the establishment of the Law recognize it with affection and pride. and-international law school, due School Alumni Affairs Office as The Law School is possibly more in no small part to Carrington's lead­ well as the Major Projects Office complicated than it once was, or at ership, stimulation, and personal added just last year. As the youngest least it certainly seems so. It is also example as dean. He knows the among the truly national law schools, more international, comparative, and river of the Duke Law School as Duke had already produced an interdisciplinary. "Law and . . . ." he knows so much of legal educa­ alumni widely dispersed around are new influences now at Duke: tion. We shall miss him this next the United States. Now, however, for example, law and economics; year, as he spends time in Ann Arbor, with larger numbers of Duke law law and the social sciences; law Berkeley, and Austin, to return a alumni concentrated in several dozen and feminist jurisprudence, and so year hence. states and cities, it became a Car­ on. The point remains importantly, rington achievement to relate our however, that each is treated always William Van Alstyne VOL. 6, NO.2 / 23 concentrating on Legal Ethics

Since the mid-1970s and the materials. Professor Thomas Metzloff, One student noted, "What's so in­ Watergate era, the American Bar who has coordinated the program teresting to me is how their styles Association has required that each for two years, notes that many law complement one another-Judge law student complete a course in schools are using simulated prob­ Oakes is the master of the quip; professional ethics. The ethics course, lems to teach legal ethics later in Judge Rubin the epitome of the seri­ however, has not always met with the law students' career. With first­ ous judge. When they do a jOint success. At some schools, the course year students, however, "it is harder presentation on a topic like oral was taught by uninterested faculty to use that type of teaching material argument, it's like a well-rehearsed to uninterested students. As the effectively given the lack of rele­ stage presentation." Their involve­ course was usually scheduled dur­ vant student experience." ment, as well as their availability ing the student's last semester in This limitation is more than to talk with students outside class, law school, the students' attention overcome given the first-year stu­ "adds a special dimension" to the was understandably elsewhere. dents' "inherent interest in their course according to Dean Carrington. Concern over the state of teach­ chosen profession," noted Metzloff. "They add authenticity and credi­ ing ethics lead Duke Law School to Dean Carrington agrees, and feels bility They are the perfect people experiment with methods of teach­ that the first year is the best year to teach the course. They've been ing the course. Starting in 1983, to teach the ethics course. "First­ there; they've seen it all." Duke began teaching professional year students are much more open­ During the course, the students responsibility to first year students minded about the array of ethical also receive a practical perspective in an intensive week-long course issues," he says. Judge James Oakes on a variety of ethical questions which has been called "an innova­ of the U.S. Court of Appeals, Second from the daily lectures given by tive and very constructive program" Circuit, who along with Judge Rubin a variety of speakers such as prac­ by Judge Alvin Rubin of the Fifth has taught the course for the past ticing private attorneys, government­ Circuit Court of Appeals. The pro­ four years, observed that "students employed attorneys and Duke Law gram has evolved to become one of are able early on in law school to School faculty members. While stu­ the more popular first-year offerings. come to grips with the problems dents are only required to attend The course is offered during the of real life. After the week, students one of the afternoon offerings each first week after winter break before will have a better idea of the prob­ day, some students choose to at­ other spring semester classes begin. lems that may arise as they study tend both. As one student noted, According to one student, "Part of other courses." "the lectures were the first time in its appeal is that it represents a wel­ Judge Rubin also feels that the law school where you didn't have come break from the grind of regular intensive nature of the course stresses to take notes, but could just listen classes and traditional case analy­ the importance of ethics. Because and think about what was being sis." Dean Paul Carrington, the orig­ no other courses are going on at the said." The wide variety of topics, inator of the intensive approach, same time, the students can concen­ ranging from the ethics of criminal agrees. "We figure that maybe we trate fully on learning about ethics. law to the professional malpractice can get their attention not only Its intensive structure consists of crisis, also captures the students' when they don't have to worry two hours of classroom instruction interest. about contracts or torts, but also daily by Judges Rubin and Oakes Dean Carrington says the main when they aren't worrying about and members of the Duke law fac­ comment about the course he has bar exams, jobs, clerkships, or the ulty. Additional afternoon lectures heard from students is that the class­ other issues that prove distracting are offered by members of the legal room portion of the course should during second and third year," community with experience in the be expanded. Carrington says this Carrington says. topiC areas. observation is a compliment to the The course's timing is not with­ From the students' perspective, program considering the fact that out some controversy. Only one the involvement of Judges Rubin students' usual reaction to an ethics other major law school teaches and Oakes has been an integral part course is "the sooner it is over the ethics during the first year. Some of Duke's success. Both judges are better." Duke faculty and adminis­ believe that first-year students do respected commentators on the legal tration are currently conSidering not have sufficient experience to profession generally and have writ­ ways to continue and improve this approach the sometimes difficult ten on the subject in law reviews. innovative program. DUKE LAW MAGAZINE / 24 For the Children's Sake: Duke Law Students Represent the Abused and Neglected*

Duke law students are increas­ others had not even met the child Jane Lombardi '89 came to Duke ingly becoming involved in one of they represented. The qUality of Law School she "wanted to do some­ the most highly publicized and im­ representation ranged from excel­ thing outside the school that was portant problems confronting our lent to virtually nonexistent." worthwhile. I considered working nation today. It is estimated that 1.5 In 1987, the North Carolina with other volunteer programs but million to 2 million children are General Assembly undertook an decided to work with the GAL pro­ physically abused, sexually molested, effort to improve the efficiency and gram because there is such a tre­ or seriously neglected by parents quality of child representation by mendous need for people to get each year in the United States. Na­ approving a pilot project to utilize involved and to know what is hap­ tionwide, more than 3,400-5,000 non-attorney volunteer GALs. From pening to these abused and neglected children are murdered annually by the beginning, Duke law students children," says Lombardi. Other Duke their parents or guardians. Those have played an integral part in this law students, like Lombardi, are in­ children who survive the abuse and upgraded program. Today, Durham terested in supplementing their legal neglect are often left physically handi­ County has the largest volunteer education with social experiences capped or incapacitated, learning GAL program in North Carolina through community involvement. disabled or delayed, and severely with more than eighty GALs, ten of Cy Elkins believes that "the law emotionally and mentally scarred. whom are Duke law students. In ad­ students have one common interest: In response, Congress enacted the dition, eight to nine students each seeing that the abused and neglected Child Abuse Prevention and Treat­ year from the Duke Child Advocacy child's interests are served by the ment Act, requiring the appointment Clinic serve in the role of attorneys courts and the community." There­ of a guardian ad litem (GAL) "in for GALs in the program. fore, the program is eager to accept every case involving an abused or interested students as GALs. But, neglected child which results in a Duke Students Volunteer each student is carefully screened judicial proceeding . . ." in order Peter Quigley, a second-year law based on personal interviews with for states to receive federal foster student, decided to get involved the program directors and recom­ care funds. 1 in the community as a GAL after mendations from community leaders. Prior to 1981, North Carolina spending a summer in Florida as a Currently, there are ten Duke law complied with the federal mandate clerk in an Orlando law firm. Dur­ students working on 15 cases, rep­ by appointing an attorney GAL in ing his time there, Quigley learned resenting more than thirty children. every child abuse or neglect case. about the gravity of child abuse from (Chris Felder '88, Daniel Brian King This system of attorney representa­ his sister, a pediatrician. "For the '88, Tom Rohe '88, Sharon Carr '89, tion was exorbitantly expensive and first time, I found out how inept Jane Lombardi '89, Peter Quigley '89, not entirely satisfactory; attorneys our legal system is in protecting Doug Varie '89, Claude A. Allen were frustrated by the increased children from abuse and neglect. If '90, Kimberly Dunn '90, and Chris non-legal work they had to perform; a medical professional sees an abused Wetherington '90) and, in many cases, the children child and nothing is done to pro­ GAL volunteers participate in an were minimally and inadequately tect that child, the next time the extensive training program designed represented. According to Cy Gurney professional sees that child, he or to equip them with the resources Elkins, the GAL program coordina­ she may be dead," laments Quigley. and skills required to effectively tor for Durham County, "Some at­ When he returned to Duke last fall, represent and advocate for the chil­ torneys were extremely prepared, Quigley had a new perspective on dren they represent. The training his legal education. "I wanted to program consists of reviewing writ­ take a human look at the law. When ten materials on abuse and neglect *This article is the result of a col­ I saw an ad for the GAL program (including North Carolina statutes laboration between Claude A. Allen in the Herald, I decided to volun­ and cases), observing active cases '90, who participated in the Durham teer." Like Quigley, many Duke law with GALs testifying in Juvenile County Guardian Ad Litem program students are recruited by other law Court, and participating in presen­ during 1987-88, and D. Willas Miller students active in the program or tations by court personnel, social '88, a student in the Child Advo­ by reading notices in The Herald, workers, child protection services, cacy Clinic for 1987-88. the Law School newsletter. When mental health professionals, school VOL. 6, NO.2 /25 counselors, and experienced commu­ an initial investigation. It is during Daniel Brian King has been a GAL nity volunteers. Kim DUllil describes this time that the law student is under for two years. He believes "the the training as "very thorough. After the most pressure and has to be greatest skill developed through the training, you really know how most diligent. You have to investigate working as a GAL is empathy. For to identify abused or neglected the charges, interview all possible most law students, first year is a children, how to meet their human leads, and formulate a coherent, selfish year. I was no different than needs through the various institu­ thoughtful recommendation that my classmates. But second year, I tions, and how to effectively press will have a significant impact on a decided to get involved in the com­ for their rights in court." Heidi child's future," says Quigley: munity." Sharon Carr found that Warburton, the assistant GAL di­ Cases a law student GAL handle "the law student GAL acquires nu­ rector, underscores the importance involve children who often have merous skills such as interviewing, of the training by emphasizing that complex and demanding problems. investigating and social work skills. "in order for a GAL to be the most In addition to the abuse and neglect, These are skills which most lawyers effective, he or she must not only the children may be delinquents, will need to use in the practice of be familiar with the broad range of educationally and developmentally law. But, the most important skill I resources and services available in delayed, or seriously emotionally developed is sensitivity to the prob­ Durham, but also with available pro­ traumatized by the prolonged abuse lems of people [a skill which] one grams throughout North Carolina and neglect. The more children in­ generally does not encounter in the which may help the children and volved in a particular case, the more sheltered environment of the law their families." complex the issues become which school." When a petition alleging abuse, the GAL must consider and address David Q. laBarre, Durham neglect or dependency is fIled in in determining what is in the best County's chief district court judge, juvenile court,2 the Duke law student interest of the victimized children. believes that "the most important assigned to represent the abused or Should the children be left in legal skill the student acquires is neglected child must: the home? Should siblings be sep­ how to advocate, not just in the -Make an investigation to de­ arated? Should the GAL petition the court room, but also in the back termine the facts and present the court for termination of parental room where many deals are struck facts to the judge at the adjudication. rights? These are only a few of the through negotiations with the other -Determine the needs of the difficult questions that the GAL must parties. This kind of informal legal child. answer. Sharon Carr, who repre­ education is not taught in the class­ -Find the available resources sented three children in one case, room, but it is very crucial to the within the family and community explains the pressures and respon­ legal process. Thus, a program like to meet the child's needs. sibilities suddenly thrust upon the GAL gives the student the oppor­ -Facilitate, when appropriate, law student GAL: "The GAL is re­ tunity to expand upon his or her the settlement of disputed issues. quired to learn and know as much legal knowledge through practical -Explore options with the judge as possible about the child's past and real life situations, where the at the dispositional hearing. life to be able to make truly thought­ student must serve the child's best -Protect and promote the best ful and sometimes difficult recom­ interest." interests of the juvenile until for­ mendations to the court about what Sometimes, the problems the mally relieved of the responsibility is best for the child's needs." She GAL face stem not from the child's by the judge. found that, "you have to be thick­ family or background, but from the -Conduct follow-up investi­ skinned, yet sensitive; tolerant, court system itself. "The adversarial gations to insure the orders of the yet firm; and decisive, yet non­ system was not designed to serve court are being properly executed. judgmental. Some of the things and protect the abused child's in­ -Report to the court when the you discover in the investigation terests and rights. The disruptive needs of the juveniles are not be­ will shock you, but you have to effect of the process on the child is ing met. keep your focus and ask the tough often overlooked," asserts one GAL. -Petition to terminate the pa­ questions to make the best deci­ As evidence, the student contends rental rights of the child's parents sion." Carr further emphasizes that that "when a child has been abused when appropriate. "it's very important to establish a and the court proceedings have com­ -Participate in post termination rapport with the person who has menced, the child is left to hang in of parental rights placement review abused or neglected the child." limbo for months while the parties until an adoption placement order jockey back and forth to press the is final. 3 Everyone Benefits court to preserve their rights. During The student must work quickly Through this process, the Duke this time the child must struggle to fulfill these responsibilities. "From law student not only learns to func­ with guilt, shame, rejection and fear. the time you receive the case fIle, tion under pressure, but also, how Therefore, it is imperative that the you have only a few days before to deal with distressing and difficult GAL be attentive to the child's non­ the adjudication hearing to make situations confronting the children. legal needs. Cy Elkins supports this DUKE LAW MAGAZINE I 26

view. "The GAL pushes the system with the family and institutions on ginning can assist the DA in the beyond the limits to do what is best behalf of the abused or neglected investigation in a way that an en­ for the child. They (GALs) are not children. For the first time, the law forcement officer cannot." constrained by budgets, bureaucracy, student is suddenly called upon to or political pressures to not get perform the duties of a true advo­ involved." cate." According to Elkins, one Duke The Child Advocacy Clinic Judge LaBarre says "Duke law law GAL had to go into a public During each of the past five students have been very helpful to housing development to interview years, eight to nine students have the court in fashiOning dispositional witnesses. The student was so participated in the GAL program by plans. The fact that they are law shocked that "she refused to get working closely with guardian ad students is particularly helpful be­ out of the car." Another student litem attorneys. The students are cause of their understanding of the "couldn't believe the utter poverty certified under the State Bar's third legal limitations the court has that that exists within one block of such year practice rule4 and work with a layman does not understand." a wealthy and prestigiOUS univer­ one of four guardian ad litem attor­ Elkins believes Duke law students sity," she continues. But, for the neys in Durham County who rep­ are particularly well suited for the students, these experiences are in­ resent children in abuse and neglect role of a GAL. "They are extremely valuable lessons in humanity. Tom cases. Unlike parents' attorneys, De­ competent and dependable volun­ Rohe says that volunteers "will often partment of Social Services attorneys teers whose reports are timely and be shocked by many aspects of the or District Attorneys, GAL attorneys well written. Furthermore, their court case, but you can't let it immobilize are guided by one rule and one presence is particularly noteworthy. you." rule alone: the best interest of the When a Duke law student handles Rohe believes that "the program child. In this respect the job is easy­ a case, the quality of the represen­ and the Durham community have the hard part is deciding what course tation always meets or exceeds my done much more for me than I of action will achieve this goal. expectations," asserts Elkins. Jane could ever do for the program. As Work assigned by a GAL attorney Lombardi is a good example of a a GAL, I quickly learned about the may take many forms, including student who has successfully pushed cruel and heinous realities of child active in-court representation of the system to obtain what is in the abuse and neglect," Rohe confesses. children, interviewing of witnesses, best interest of her child/client. In In working for the children assigned preparation of affidavits and inter­ discussing one abuse case, Lombardi to him, Rohe visited a prison to in­ rogatories, fact investigation, draft­ discloses that "DSS wanted to dis­ terview a witness, and negotiated ing and responding to motions, or miss a petition it ftled alleging abuse with a parent to secure the best out­ any other task that the GAL attor­ and neglect before adjudication de­ come for the children. Rohe was neys might otherwise perform them­ spite the fact that the charges were successful in obtaining the coop­ selves. Kate Bartlett, who devised substantiated upon investigation. eration of an abusive parent because and now administers the Child Ad­ After several continuances, I was he used his extensive knowledge of vocacy Clinic recalls, "The course able to work on behalf of the child. the case and his good rapport with began as a traditional seminar called The court's ruling supported my the children and the family to con­ "Representing the Child." The sub­ recommendation." Thus, because vince the parent to settle on terms stance of the course was much of Lombardi's thorough investigation most beneficial to the children. broader than it now is, in that it and her vigorous representation to Judge laBarre believes that one covered such things as handicapped the court, the child's best interest particular area in which law students children in public schools, and the prevailed. can be most useful and effective is institutionalization of children. We For many Duke law students, "in the area of criminal prosecution had readings and simulated exercises, the GAL program provides an op­ of child abuse and neglect perpe­ but no placements." She added the portunity to experience an aspect trators. Because the District Attorney clinical component two years later. of law to which they are not ex­ (DA) has prosecutorial discretion, "The course then developed more posed in their classroom instruction. there hasn't been an advocate for of a focus on abuse and neglect Kate Bartlett, a Duke law professor the child in criminal court. Since work, because it seemed to me that who teaches family law and adminis­ the child is not a very good com­ those were the cases that worked ters the Child Advocacy Clinic, ob­ plaining witness, there is no one best pedagogically for students." serves that "many Duke law students who pushes the case for the child The course still contains some have never been into a poor person's in the DA's office." laBarre believes elements of a traditional seminar. home or dealt with violence-an that law student GALs can be the Students meet class two hours week­ integral part of criminal law. Thus, most effective because "they are ly for one semester. This time is when they are exposed to trauma not officers of the courts as are the used for simulated exercises in trial for the first time, they are initially GAL attorneys. Therefore, the law advocacy, interviewing and nego­ shocked. After overcoming the student who has been intimately tiating, and for guest speakers, lec­ shock, they are most eager to work involved in the case from the be- tures and discussions on topiCS rang- VOL. 6, NO.2 /27 ing from the detection of sexual a child's best interests. A question to progress that possibly can never abuse in children to the representa­ often asked, for example, is: When be reversed. Once you get a child tion of parents in child abuse cases; is it appropriate to remove a child into foster care, once it's into the and, beginning this year, strategy and from his home? And just as impor­ system, it is hard to turn back." working sessions on a case adopted tant: Am I qualified to make that "I like the idea of getting the by the class as a class project. All decision? abusive person out of the home students are also required to attend Peggy Force phrased the con­ much more than taking the kid out," the Durham County Guardian Ad cern well: "One of the things that commented Mary Mandeville. "I Litem training seminar, under the has been most eyeopening is that, think that after being abused, yank­ supervision of their placement at­ even though the situation the child ing a kid out of his home is, in some torney. In addition, each student is in may seem horrible to me, that cases, even more traumatizing than puts in one hundred hours of clin­ is all the child knows, that is what the initial abuse." ical work over the course of two their security is based on. It's his Despite the difficulty of making semesters. home, even if it is very destructive. serious decisions which drastically The class project was an addi­ And I'm wondering how much the affect the lives of others-of facing tion to the course this year. After pattern of abuse is due to the fact problems without clear answers­ considering different ideas, the class that these kids grow up and try to the students' consensus is that the voted to aid two GAL attorneys in a recreate their sense of home by seminar was a very positive experi­ class action suit against the Durham abusing their kids, because that ence. The general feeling was that County Department of Social Ser­ was home to them. It's a bizarre the in-class work nicely comple­ vices for failure to provide adequate concept." mented the clinical work, and that protection to certain abused chil­ Robin Rosenberg recounted a the clinical work was interesting dren. The students in the class did case she worked on in which the and important. a good deal of research and drafted Department of Social Services re­ "The hypothetical in-class prob­ affidavits, to help prepare the attor­ moved a father from his home to lems were as difficult as the real neys for an upcoming summary protect a child from further poten­ cases were, and we never came up judgment motion ftled by the de­ tial abuse. After an investigation re­ with anyone solution in class. Every­ fense. While it is still unclear what vealed that there was a reasonable one wanted to do something differ­ the end result of the litigation will basis to believe that the injuries to ent. That's exactly the way the real be, the attorneys involved are opti­ the child were in fact accidental, cases were," commented Robin. mistic and appreciative of the stu­ Robin felt she knew what to do. "I "It was good to have the speak­ dents' help. agreed with the Guardian Ad Litem ers from the real world, and the When asked what kind of stu­ in this case, that the father should readings to give us a more theo­ dent takes a course like this, Bartlett be back with that family right away." retical view, and the problems and noted that "as compared with the Putting a child back into a situation class discussion to teach us all the population of Duke Law School in which it has been injured is, per­ alternatives. It was a good course generally, there is a disproportionate haps, the most difficult decision in that respect," said Mary Mandeville. number of women and people in­ faced by some of the students in the "But, it wasn't until we ended the terested in public interest law:" Al­ seminar. It is a decision for which classroom portion of the seminar though true of this year's class, sev­ no law course can adequately pre­ that I realized just how much I got eral students also said that their pare you. Robin felt as though she out of it," she added. interest in the course was sparked could rely heavily on her Guardian "My attorney was involved in two by the opportunity to get some liti­ Ad Litem's advice in this case. "He big divorce cases and I called the gation experience before entering was an older man, retired, and he witnesses and found out everything a firm full-time. Last fall, eight law could give his full time to the in­ relevant to the investigation .... It students were admitted to the sem­ vestigation," she said. took fourteen hours, but it was fas­ inar. (Peggy Force '88, Amy Kincaid Robin did voice a concern shared cinating," said Amy Kincaid, the '88, Robin Rosenberg '89, Mike by many: how much weight should only student in this year's class Wakefield '88, Willas Miller '88, be placed on anyone person's opin­ who opted to do divorce/custody Kirk Halpern '88, Mary Mandeville ion when making decisions of such work. Amy is planning a career in '89 and Jenny Clarke '88) importance? "I know the intention litigation and found the course in­ Among the stories and com­ is to do what is in the best interests valuable. "This is the only course ments related by students in the of the child, but I don't know how in law school that put me in touch course this year, some common successful anyone person can be with reality. It has redeeming social themes appear, and although expe­ in fulfilling that role," Robin said value, not to mention the legal edu­ riences vary, many of the questiOns with much concern. "I mean, when cation. I've learned a lot about soci­ and concerns raised by these ex­ you make a decision today that ety and a lot about children," she periences are similar. Most students you're going to remove that child, added. struggle in determining what is in a whole series of events are put in- When asked what she hoped DUKE LAW MAGAZINE I 28

students would get from this course, the importance of interviewing prior appearing in court for the first time. Professor Bartlett said, "I hope not to litigation. I learned how to pull "I realize now that the more you only that they learn something about out the important facts and how to do it, the more comfortable you an area of the law they otherwise use them." Both Frankel and Bryant become in the courtroom setting." wouldn't learn, and something about acknowledge that the students But, as valuable as the program is a slice of life to which most of them handled a "lot of responsibility." for the student participants, Volland haven't been exposed. but also that But, they were working under the points out its value to the commu­ students gain a greater sense of how supervision of an experienced attor­ nity as well. "The program is a real the law can be used and how it ney. "The supervisorlstudent rela­ asset to our court system." should be used to help people in tionship was wonderful," recalls As for the future, Duke law stu­ circumstances that the students Bryant. I was encouraged to take dents can be instrumental in im­ might have just as soon ignored. as much responsibility as I could or proving programs that protect and But in a sense, you're preaching to would, but there was always some­ serve abused and neglected children. the choir in a course like this, since one there to hold my hand when Judge laBarre believes that "the leg­ the people who sign up have already I needed it. She was an excellent islature responds to the concerns demonstrated an interest, willing­ role model." of interested persons in the com­ ness and sensitivity to the problems Jane Volland '83 decided to fol­ munity. The few people in juvenile of other people who can't pay a lot low that model upon graduation. justice in North Carolina are unable of money." Bartlett also hopes the Today, she practices with Gulley, to devote the required time to lob­ students will get some practical skills Eakes & Volland in Durham and bying the General Assembly. This is training. "I also want them . . . to also serves as a supervising attor­ but one area where Duke law stu­ develop some familiarity with what ney for the Child Advocacy Clinic dents concerned about children legal practice is all about . .. includ­ in which she had earlier participated can be helpful by drafting pro­ ing getting over the shock of having as a third year student. "Certainly posed legislation, attending com­ to stand up in front of the judge the course was quite relevant for mittee meetings, and making the and talk, or the shock of having to me; it convinced me that it was the general public aware of the prob­ interview real people and negotiate type of work I wanted to do," says lems affecting children." with real attorneys. That's a good Volland, who is now one of four For the Duke law students in­ thing to do in law school while GAL attorneys in Durham. "It was volved in the GAL program, the you're not expected to know how also the first time I felt the excite­ only way to measure success is to do all that stuff, as opposed to ment of litigation, which helped when you know in your heart that your first law job when all of a sud­ me realize that I wanted to be a as a result of your work children's den, because you're a lawyer, peo­ courtroom lawyer." Given her own lives will be better than if you had ple expect you to know how to do positive experiences in the course not been there to speak out for them. it all." as a student, Volland was delighted A complete success is when you Several alumni who participated when Professor Kate Bartlett invited see an abused or neglected child in the clinic while at Duke believe her to participate in the program as smile again. that it succeeded in every way. Says a supervising attorney. Over the In commenting on the work of Suzanne Bryant '85, "It was the past three years, she has supervised Duke law students involved in the best thing I did in law school. I still five students and found that each GAL program, Cy Elkins notes that think about it a lot. Not only did one was "a delight to have working "I feel better about human nature I feel that I was really making a dif­ with us. They were intelligent, con­ whenever I see the spark of energy ference in children's lives, but I also scientious and dedicated; I know and hope the students bring to the had the opportunity to do real law­ they went beyond the number of program. Although there are many yedy work while still in school." hours required for the course." opportunities in Durham for Duke Gusti Frankel '84 calls it "an abso­ Volland agrees that the course law students to make significant lutely wonderful course. It was im­ provides excellent skills training, contributions to the community, portant not just because of the issues both in the classroom "where we the Guardian Ad Litem Program is involved-which were critical-but got to fire questions at the practi­ one program where Duke law stu­ also because of the opportunity it tioners" who served as guest lec­ dents are making a difference." gave us to spend time in the court­ turers and during the placement. room." Frankel recalls, "I thought "The students do whatever is neces­ 1. 42 u.s.c. 5103(bX2XG). I wanted to do litigation, and this sary. They collect data, prepare for 2. NCGS 7A-586 defmes abuse, neglect and dependency. course gave me the opportunity to court hearings, negotiate settlements 3. NCGS 7A-586, -289.24(6), -659, and -660. get up in a courtroom and address and advocate in court." For the fu­ 4. N.C. BAR RULES, App. E Art. III . a judge for the first time. It helped ture trial lawyers, she feels that one me to make choices and to learn of the most important benefits of practical lawyering skills. For ex­ the course may be the opportunity ample, it was then that I learned to overcome their anxiety about VOL. 6, NO.2 / 29 Innovative Clinical ProgratIls at Duke Law- School

article (See p. 24), and criminal litigation. The Criminal Litigation Clinic places twelve to eighteen students with prosecutors, public defenders, and private criminal de­ fense attorneys in Durham, Chapel Hill, and Raleigh. The students ap­ pear in court under North Carolina's student practice rule. In addition, they participate in a parallel seminar that simulates a complex criminal investigation and prosecution, con­ centrating on skills that have not been developed in Trial Practice. These include interviewing, investi­ gation, negotiation, discovery, and preparation of pretrial motions. In addition to the traditional clinic courses, Duke Law School has offered a number of non-traditional, simulated clinical courses since 1978. These simulated clinical courses Opening and closing arguments to the jury are an important part of the provide students with practical skill simulated trials conducted in Trial Practice. training in specific substantive areas of the law through simulated exer­ Prior to entering law school, rected at improving such skills as cises. The exercises are formulated many students envision that those the ability to write effectively, com­ by faculty members to raise sub­ three tortuous years will transform municate orally, gather facts, inter­ stantive and ethical legal issues in them into young Clarence Darrows, view, counsel, negotiate, and plan situations resembling those com­ ready to step from classroom into innovative solutions to client prob­ monly encountered in a high level the courtroom. What they may fmd lems. The clinical courses may be legal practice. The current simulated is that while law school teaches taken by second- and third-year clinical program emphasizes cor­ them about the law and how to students, and approximately 250 porate subjects, addressing the type "think like a lawyer," much of their students each year take advantage of practice that the majority of Duke practical skills training takes place of the opportunity. After participat­ students will enter. The simulated after graduation under the super­ ing in the clinical program, these portion of the clinical program at vision of a senior partner. This is students have a solid base of skills Duke Law School can be categorized not a failure of the law school cur­ which they can then polish with into three types of courses; trial riculum; law schools simply carmot experience. practice, corporate clinical courses, be expected to turn out experienced and appellate advocacy: lawyers. Many schools, however, Curriculum have attempted to make the transi­ Traditionally, clinical courses are Trial Practice Courses tion from law school to law prac­ placement-oriented. Law students The Trial Practice courses have tice easier by implementing clinical gain credit and practical experience been the most consistent offerings programs. These clinical programs by working with lawyers engaged in the clinical program at Duke Law provide training in skills which are in litigation in the community sur­ School. They are the only clinical fundamental to the practice of law. rounding the Law School. Duke courses taken by a substantial ma­ Duke Law School offers a clin­ Law School continues to offer such jority of the students over the past ical program to provide practical traditional clinical courses in the ten years, and most students fmd training in fundamental legal skills areas of child advocacy, which is them valuable and enjoyable. Gusti for its students. The program is di- discussed in depth in a separate Frankel '84, an associate at Wom- DUKE LAW MAGAZINE / 30 ble, Carlyle, Sandridge and Rice in preparation, opening statements, areas of antitrust practice, business Winston-Salem, North Carolina, calls closing arguments, motions, evi­ planning, commercial arbitration, Trial Practice "the best time I had dentiary objections, and examina­ commercial practice, entertainment in law school. It was exciting and tion of lay and expert witnesses. law, estate planning, forensic psy­ intense. It convinced me that I The exercises are videotaped so chiatry, land use planning and nego­ wanted to be a litigator." that the students' performances tiation. The courses are taught by Instructors of the course include may later be critiqued by both the adjunct and full-time faculty mem­ both full-time and adjunct faculty student and the instructor. bers with substantial practical ex­ members, all of whom have had The Trial Practice courses cul­ perience in the particular field to substantial trial experience. Donald minate with the students acting as maximize the benefit of the courses. Beskind '77, former associate profes­ counsel in a full trial before a panel Antitrust Practice examines the sor and director of clinical studies of lay jurors recruited from the problems of current doctrinal and at the Law School, is presently a Durham community. After presen­ theoretical interest in this field, in­ partner in Beskind and Rudolph, tation of their cases, the students cluding vertical restraints, merger a Chapel Hill law firm. In addition are able to watch the jury delibera­ policies, and joint ventures. The to teaching trial practice at Duke Law tions. Donald Beskind describes this students confront these problems School, Beskind serves as a frequent experience as invaluable, because it by examining their effect with re­ lecturer in the continuing educa­ provides an insight into how the gard to the competitive aspects of tion courses sponsored by the North jury perceives the evidence. Dean a particular industry. They then pre­ Carolina Bar Association and has Swinson also considers this a par­ pare documents, such as opinion prepared instructional material and ticularly strong point of the pro­ letters and petitions for certiorari, led programs for the National Insti­ gram as "the key to a jury trial is with particular emphasis upon learn­ tute for Trial Advocacy The Honor­ convincing lay people." ing to speak to different audiences able Charles Becton '69, currently Dean Swinson believes that the in an effort to be forcefully persua­ serving on the North Carolina Court trial practice course is important sive. The course is conducted by of Appeals, has been teaching trial because it heightens the students' Calvin Collier '67, a former chairman practice at Duke Law School since awareness of all the different as­ of the Federal Trade Commission 1980. William Hutchinson began pects and important considerations now practicing in Washington, nc. teaching trial practice at Duke Law in handling a case from organizing Commercial Arbitration exposes School in 1980 after thirty years of the materials and planning strategy students to the fundamentals of arbi­ private practice in Michigan, devoted before entering the courtroom to tration in the context of construc­ primarily to litigation of civil and learning to "speak under fire and tion law. Student teams use project criminal matters. Elizabeth Kuniholm make adjustments according to the documents of a recent case to de­ '80, is an associate at the Raleigh judge's rulings." velop practical skills in formulating firm of Tharrington, Smith and Professor Mosteller views the theories of the case, preparing the Hargrove. Associate Dean Gwynn trial practice courses as "integrative. claims/defense manuals, gathering Swinson served as a trial attorney They pull together things the stu­ evidence, writing briefs, interview­ for the Justice Department's Com­ dent has already learned and add ing witnesses and making formal mercial Litigation and Federal Pro­ practical skills training not taught arguments. The teams then present grams Branches before coming to elsewhere, such as interviewing and their case to an arbitrator who rules Duke Law School. Robert Mosteller, other communication skills." Dean on evidentiary matters and renders who teaches both Trial Practice and Swinson also sees the trial practice a written award. A critique follows a more specialized course in Crim­ courses as an excellent review of each arbitration session. The course inal Trial Practice, served seven years academic legal theory-particularly is taught by C. Allen Foster, a Greens­ as Director of Training and Chief of in the field of evidence-as the stu­ boro attorney specializing in the the Trial Division at the District of dents are asked to apply their knowl­ arbitration field who has served as Columbia Public Defender Services. edge in a practical way. President of the American College Trial practice teaches litigation of Construction Arbitrators. skills in a civil and criminal trial set­ Corporate Clinical Courses Michael Wakefield '88 describes ting. On occasion, the School offers The corporate clinical courses the Commercial Arbitration course a more specialized course in crim­ are structured to present the student as "very practical. The twenty-hour inal trial practice, which in addition with practical problems normally arbitration session took a lot of work to covering basic trial practice ma­ encountered in specialized areas of to prepare, but it was worth it. I terials, addresses concerns peculiar a high level corporate law practice. learned a tremendous amount." A to criminal litigation, including sup­ The major strength of the corporate 1984 Duke Law graduate also de­ pression of evidence and identifi­ clinical program lies in the breadth scribed the arbitration course as very cation under the fourth and fifth of the subject matter available. Over practical. "It gave a very realistic amendments. Both courses utilize the past several years, the curricu­ picture of the amount of prepara­ simulation exercises involving trial lum has included courses in the tion required in any type of dispute VOL. 6, NO.2 / 31

resolution. The training is very help­ signed to a "client" from the Duke judge who participated in the pro­ ful and is equally applicable to all MBA program. After classroom in­ gram in 1987 and 1988, termed it types of dispute resolution." An added struction and practice in negotiation "an innovative, educational program. benefit of the arbitration course is techniques, the students must advise I am glad to see that the Law School the instructor, Mr. Foster-described their clients regarding the legal sit­ is providing such realistic and chal­ by one former student as "uniquely uations and pursue negotiations with lenging courses for its students." entertaining." an opposing counsel. Dean Pursley In Entertainment Law, students Commercial Practice presents fmds that "for many students the study the legal, fmancial, and busi­ students with a variety of tasks in­ negotiations phase is particularly ness considerations of practice in volved in the resolution of com­ enjoyable. It is an important part of the entertainment industry. Through mercial disputes and invites several the work they will do as attorneys student participation in several sim­ groups of alumni to participate in and not something they get much ulated projects, many aspects of the the educational process. The course training for in law school. The addi­ production process are analyzed in is administered by Evelyn Pursley, tion of the business school clients light of the attorney's role in sup­ the Law School Assistant Dean with is a real plus because it gives the porting the producer's coordination responsibility for alumni affairs, who law students practice in explaining of creative talent and commercial reports "I enjoy administering this legal issues to lay people and helps interests. The course is taught by program because it gives me an op­ them to realize that the client is the Duke Law Professor David L. Lange, portunity to work with alumni in boss and final decision-maker in who has served as a member of a different way." this situation." Regardless of the the Governing Committee of the Students in the Commercial outcome of the negotiations, each ABA Forum on the Entertainment Practice course are divided into student then prepares a brief in re­ and Sports Industries. small "law firms." Each of these sponse to a motion for summary Robert Nagle '87, an associate firms receives a portfolio of prob­ disposition under the supervision with Buchalter, Nember, Fields, lems prepared by a group of Duke of the senior partner. This brief is Chrystie & Younger in Los Angeles, Law School alumni (known as ex­ evaluated by the external examiner. felt that the course gave him a good ternal examiners) who are associates A group of alumni judges then visits perspective on the relationship be­ in law firms throughout the country. the school to hear oral arguments tween entertainment and the law. Each student is asked to analyze on the briefs. "The simulated problems are very the legal problem and prepare a Dean Pursley feels that a real realistic and they give a very accurate draft memorandum. Another group strength of the program is the fact insight into the field. As a result of of Duke Law alumni who are senior that students work with a legal prob­ taking the course, I feel that I can partners in major law firms confer­ lem from beginning to end. The discuss concerns of the entertain­ ence with the students and review student must investigate the legal ment industry with anyone in the the memoranda. The revised memo­ issues, attempt to negotiate a settle­ field." randum is then evaluated by the ment, and finally argue the issues Estate Planning examines the external examiner who devised the before a judge. The Honorable problems and techniques in estate problem. Each student is then as- Garrett Brown '68, a federal district planning and administration. Students are required to prepare recommen­ dations and draft documents for hypothetical clients. In making their recommendations, the students must take into consideration the specific intentions of their clients as well as facts determined through analysis of client meso Discussion lectures in­ clude presentation by a trust officer, a CPA and a CLU, thus providing exposure to related disciplines. The course is taught by Ralph McCaughan '66, Associate UniverSity Counsel for Development. Before corning to Duke in 1981, Mr. McCaughan prac­ ticed law in the field of estates and trusts in Fort Lauderdale, Florida. Forensic Psychiatry is designed to provide a working knowledge of Judge Friedman listens to oral argument as part of his instruction in brief the interface between law and psy­ writing and oral argument. chiatry. Primary focus is on the roles DUKE LAW MAGAZINE / 32

and responsibilities of the attorney the last thirty years on local zoning One of our courses in this area and the psychiatrist in the commit­ policies; the acceptance or rejection is taught by the Honorable Harry ment process, the right to demand of the halfway house; and the atti­ Edwards of the United States Court or refuse treatment, and the deter­ tude of the communities toward of Appeals for the District of Colum­ mination of competency to stand "time sharing." Each student then bia Circuit. The other uses a team trial and criminal responsibility. Stu­ chooses a piece of vacant land in of judges from the federal courts of dents taking the course become the viCinity, investigates its zoning, appeal. Judge Dickson Phillips of involved with the interviewing and and decides upon a use for the land the Fourth Circuit teaches a class­ observation of patients in each of which would not be allowed under room component concentrating on these areas. The course is taught by its present zoning status. After inter­ appellate jurisdiction. Judge Daniel Dr. Sally Ann Cunningham Johnson, viewing members of the community Friedman of the Federal Circuit the Director of Forensic Services and investigating the substantive provides instruction on brief writ­ and Clinical Research at the Federal law, each student writes a proposal ing and oral argument, and most Correctional Institution at Butner, on the procedure to follow to get recently Judge James Logan of the North Carolina. the zoning changed, pinpointing Tenth Circuit and Judge John Gib­ Negotiation and Settlement offers where opposition will arise and how bons of the Third Circuit critiqued an examination of an attorney's role to overcome it. Finally, the student briefs and held oral argument. as negotiator, attempting to resolve leads a class discussion on his prob­ The simulated clinical programs disputes prior to adjudication. The lem and his proposed solution. provide the student with a great course focuses on techniques, eth­ One former student described deal of practical skill training while ics, and other aspects of the negoti­ the land use planning course as still in school. As a result, the par­ ation process. Students in the course "amazing. The insights on land use ticipants should fmd the transition form teams and negotiate settlements provided by Professor Babcock are from law school to law practice for simulated problems involving better than anything that appears somewhat easier for they already commercial transactions, personal in print." have a strong base of skills devel­ injuries, real estate transactions, anti­ oped. Robert Nagle felt that the pro­ trust and labor relations. The course Appellate Advocacy gram gave him a definite initial edge is taught by Professor F. William Federal Courts and the Appellate on the job. Susan Henderson '87, Hutchinson, who developed his ex­ Process is a relatively new addition an associate with Gardere & Wynn pertise in this field through thirty to the clinical program at Duke Law in Dallas, Texas, noted another ben­ years of litigation practice. School, first appearing in 1983. It efit of the clinical program. "Law When offered, the Land Use provides an opportunity for the in­ school generally gives you little idea Planning clinic is taken concurrently depth study of appellate practice of what you will do as a lawyer. The with a survey course, which covers and procedure in the federal courts. clinical program is an exception be­ public and private nuisance law, The course involves an applied re­ cause it gives you a somewhat real­ zoning, subdivision control, hous­ search and writing project, along istic picture of the practice of law." ing codes, street mapping and con­ with traditional lectures and class The clinical program is not with­ demnation. Both courses have been discussions. The course culminates out limitation. It must be conceded taught by Richard F. Babcock, who with oral arguments before an ex­ that the program does not provide practiced land use planning in Chi­ perienced judge. Substantive cover­ students with all of the skills neces­ cago for thirty years. He also served age includes jurisdictional issues of sary to practice in a certain specialty as President of the American Plan­ particular interest at the appellate One Duke Law graduate described ning Association in 1971-72 and as level; fmal orders and interlocutory the program as "leaving some holes, Chairman of the Advisory Commit­ appeals; standing and ripeness issues; but providing the broad picture." tee of the American Law Institute prudential considerations militating Another graduate added that his Project on Model Land Development against appellate review; waiver of clinical courses were perhaps the Code from 1965 to 1975. He has appealable issues; the proper scope part of law school most relevant written four books, including The and standard of review (with em­ to his practice and deserved much Zoning Game. phasis on administrative agency ap­ more exposure. He cautioned, how­ In this clinical course, each stu­ peals); and the remedial authority ever, that "while the program pro­ dent writes a paper which is an in­ of the courts. In addition, the course vides training in many practical skills, depth study of a select jurisdiction deals with certain practical problems these skills still require the polish to determine the impact of a par­ of advocacy and judicial adminis­ that only comes with experience." ticular legal issue in land use plan­ tration, such as when and what to Though the clinical program may ning on communities in those juris­ appeal, preparation of appellate briefs, not produce a fully formed Clarence dictions. The issues explored in the oral advocacy, dispute settlement Darrow, it does at least take the course include the Central Business techniques, decision making pro­ student part of the way down the District and the Sherman Act; the cesses, and special institutional prob­ road from the classroom to the impact of changing demography in lems facing appellate judges. courtroom.

DUKE LAW MAGAZINE / 34 Participating in Changes in the Chinese Legal System

Trade, who indicated an interest in studying law in the United States. Mr. Shi, trained in English and eco­ nomics, was working on a degree comparable to an M.B.A. His pro­ gress had not been uneventful, however, as he had served as an officer in the Red Guards during the Cultural Revolution and as a helicopter pilot in the Chinese Air Force in addition to being twice "rehabilitated" for ideological short­ comings. He had also found time to develop a hobby-translating con­ temporary American fiction into Mandarin; his specialty is Faulkner. The faculty found his letter so in­ teresting that arrangements were made enabling Mr. Shi to enter Duke for a].D. degree in 1982. Now an alumnus working as an associate at Whitman and Ransom in New York, Mr. Shi '85 explains that Duke's China program is unique due to its emphasis on the].D. degree. Even now, when many other law schools have Chinese students, Duke remains alone in primarily graduating Chi­ nese ].D.s, rather than LL.M.s. He feels this is important because many people believed that Chinese stu­ dents could not make it through a The author, Allison Rottmann, '88 spent the 1985/86 school year in China where rigorous J.D. program, and Duke she studied in the law department of People's University of China (Zhongguo has proved that they can. "Duke is Renmin Daxue) in Beijing. succeeding at a tremendous experi­ mental job and is turning out quali­ On October 1,1949, Mao Zedong Law School is contributing to China's fied lawyers," says Mr. Shi, who proclaimed the establishment of the legal development by offering Chi­ works in the firm's corporate divi­ People's Republic of China. That nese students an opportunity to sion and is substantially involved same year, the new communist study American law. Currently, there with international joint ventures. government abolished all existing are thirteen students from the Peo­ Duke's unique program is recognized civil law. From that time until the ple's Republic of China enrolled in in China, where an internal govern­ present decade, little legal devel­ the].D. program at Duke, two more ment newspaper cited Duke's legal opment occurred, but once begun, studying for the LL.M. degree, and program as one of the world's best the pace has been rapid. Recog­ six alumni. The School is also of- for Chinese students. nizing the importance of a legal fering courses in Chinese law and Following his enrollment, Mr. framework for China's moderniza- society to American students. Shi persuaded the Law School to tion and increasing economic con­ The Law School's China pro­ admit Gao Xi-Qing, the following tacts with the outside world, the gram started by chance with a letter year. Because there were then two Chinese government has targeted from Shi Xirnin, a graduate student Chinese students studying law at legal education for growth. Duke at the Beijing Institute of Foreign Duke, representatives of China's VOL. 6, NO. 2 /35

Ministry of Education visited the what he had missed, such as the argue his individual claims. The stu­ Law School in the fall of 1983. The jokes told by Professor Christie in dent noted, however, that although next summer, Dean Paul Carrington Torts class. As he explained, even the right to challenge was guaran­ visited China, and plans were made American youth know legal basics teed, one must have money to pay for the exchange of legal students. such as Brown v. The Board of for the pursuit of that right. Another By 1984, the Law School was com­ Education. For him, everything was found it interesting that the specific mitted to its China program, and the new and therefore required two or laws themselves were not taught in number of participants has con­ three times the amount of energy the classroom. tinued to grow. as compared with his American Zhang Danian '89, from Shanghai, Why is Duke committing its re­ classmates. has both LL.B. and LL.M. degrees sources to the legal education of Now, Mr. Gao is himself teach­ from Fudan University. Since Mr. Chinese students? As Dean Carring­ ing law at Duke. In addition to his Zhang has studied law extensively ton explained, the commitment re­ current position in the corporate in China, he can sometimes directly flects a faculty judgment that what division of Mudge Rose Guthrie compare Chinese and American law ,., is happening in China now is enor­ Alexander & Ferdon in New York, and determine what China might mously interesting. China's culture Mr. Gao teaches International Busi­ learn from the American legal sys­ is 7000 years old (and has gotten ness Transactions with China at tem. Mr. Zhang finds that in the along most of that time without Duke Law School. In August 1988, business and economic fields, Amer­ much in the way of lawyers). China he will return to Beijing, China and ican law is much more sophisticated is now developing a legal system join the legal faculty of the Univer­ than Chinese. In recent years, China and profeSSion, and that in many sity of International Business and has considered adopting some eco­ ways makes for the most interesting Economics (Wai Mao Xneyuan). nomic mechanisms from western legal event of the century "If China's Although the usual law students' countries. When borrowing or in­ legal activity is not more portentous complaints of too much work, too troducing something from a foreign than Brown v. The Board of Edu­ little sleep, not enough money, and source, Zhang Danian believes one cation," said the Dean, "It is at tough competition are also voiced must first know what one truly hun­ least in that class. Duke's program among the Chinese contingent at gers for, then taste most of what is is an attempt to play a small part in Duke, the visiting students are stim­ available, while fmally digesting only China's legal growth by enrolling a ulated by their studies. One student some. few students each year in the JD. commented that American law is Wang Yaxiong '89, of Taiyuan, program." interesting because room is always Shanxi Province, received his LL.B. left for argument, and more often degree from People's University of Chinese Students than not, legal conclusions are open­ China (Zhongguo Renrnin Daxue) in the J.D. Program ended. Another student likes the before joining the legal faculty there. Most of the Chinese students American adversary system in which Professor Wang, notes that, although agree that law school, particularly everyone has a guaranteed right to China is now focusing more atten- the first year, is extremely demand­ ing. Gao Xi-Qing '86 found his first day of class to be ominous. On the morning after his arrival in the United States, Mr. Gao went to his first law class-Property, taught by Professor Sparks. Mr. Gao was un­ aware of the fact that 105 pages had already been assigned for class; he thOUght the professor would give an introduction to the course on the first day, as his experiences in China led him to expect. As fate would have it, Professor Sparks promptly called upon Gao Xi-Qing. Not only was Mr. Gao unprepared to answer, he could not even under­ stand the question! During Mr. Gao's first year at Duke, he only had four hours of sleep each night. At first, he was unable to appreciate the cul­ tural barriers he confronted in the classroom. Only later did he realize While studying in China, Rottmann also taught classes in English. DUKE LAW MAGAZINE / 36

Law Firms Participating in the Duke Law China Program, Horowitz participates in making 1987 or 1988 admissions deciSiOns, corresponds with prospective Chinese applicants, Bradley, Arant, Rose & White Birmingham provides orientation for new stu­ Carrington, Coleman, Sloman & Blumenthal Dallas dents, acts as a liaison with those Coudert Brothers New York law firms who provide training for Dechert Price & Rhoads Philadelphia Chinese students, and personally Furth, Fahrner, Bluemle & Mason San Francisco counsels students on a wide variety Hancock, Rothert & Bunshoft San Francisco of problems. Beyond the academic Krusen Evans and Bryne Philadelphia rigor of law school, most students Isham, Lincoln & Beale Chicago fmd their biggest problems to be King & Spalding Atlanta culturally related. As Dean Horowitz Kirkpatrick & Lockhart Pittsburgh pointed out, many of the problems Lewis and Roca Phoenix which the Chinese students face McCutchen, Doyle, Brown & Enersen San Francisco are the same as their American class­ McGuire, Woods, Battle & Boothe Richmond mates, but the problems are often Morrison & Foerster Los Angeles magnified because of the unfamiliar Morrison, Hecker, CurtiS, Kuder & Parrish Kansas City environment and the lack of a famil­ Paul, Weiss, Ritkind, Wharton & Garrison New York & Washington iar support system. After arriving Salem, Saxon & Neilsen Tampa in this country, the students must Sidley & Austin Washington rapidly learn new management skills. Ware & Freidenrich Palo Alto They must learn to determine what Womble Carlyle Sandridge & Rice Winston-Salem is important and what is not in coping with such matters as time, transportation, and money. They confront a different set of values tion on legal training, there is still He worked hard, but also had the in the United States. Great cultural much that can be learned from opportunity to meet people. Mr. differences exist between the two American methods, such as making Hirsch mentioned that Sang Bin nations and are the root cause of a greater investment in legal educa­ Xue is an excellent cook, and pre­ many difficulties. Zhao Juisu, a third­ tion in order to aid China's new pared dinners for some of the more year student from Shanghai, aptly economy-oriented policies. Profes­ fortunate members of the firm. describes the problems faced in sor Wang is, however, critical of case Chris Knight '71 of Isham Lincoln dealing with American life as an law analysis as the primary means & Beale (now with Hopkins and "emotional and psychological di­ of teaching law, considering it to Sutter) in Chicago, mentioned sim­ lemma or pressured experiences in be an inefficient study method. ilar reasons for that firm's participa­ a different social and cultural envi­ tion. In addition to helping out the ronment which could hardly be Law Firm Participation Law School, Mr. Knight said an in­ fully understood or appreciated An important aspect of Duke's ternational element was added to by Americans." China program is the work experi­ the firm's summer program. Because Many of the students have left ence which the students receive cultural differences are so vast, the spouses and young children behind each summer. This opportunity to global, cross-cultural aspect of par­ in China. Naturally, this situation is gain valuable practical training is ticipating in Duke's program is very the cause of much loneliness and made possible through fellowships important. Participation in the pro­ homesickness. The students also offered by law firms participating gram provides a firm's lawyers with miss their country itself-Chinese in Duke's program. Bill Hirsch '64 an excellent opportunity to meet music, food, reading materials, etc. of Morrison, Hecker, Curtis, Kuder and work with a foreign attorney. When Li Xiaoming '90, thinks of & Parrish in Kansas City, said that Attorneys at the firm provided Zhao his homeland, he remembers and one of the reasons his firm partici­ Jinsu the opportunity to see how a misses the Chinese spirit of coop­ pates in the program is to give some­ large corporate law firm operates, eration: "When it snows overnight, thing back to SOciety. The firm's and went out of their way to give everyone in my city, Beijing, would participation is a way to contribute him feedback, so he could hone get up early the next morning and to developing good relations with his lawyering skills. clear up the roads together-public other countries, which Mr. Hirsch or private . . . ." believes to be important. Sang Bin Culture Shock The Chinese students are amaz­ Xue '89 from Harbin, China, worked Judith A. Horowitz, Assistant ingly adaptable, nevertheless, and for Morrison Hecker. The firm en­ Dean for International Studies, is they operate with amazing facility joyed having Mr. Sang, and treated coordinator of the China program. once they become accustomed to him the same as any other clerk. In the course of her work, Dean life at Duke. Many of them have VOL. 6, NO.2 /37

also enjoyed the opportunity to money helping the proletariat around American Students travel in the United States. When the world." He was surprised when Study China asked to describe their best time or co-workers appeared dumbfounded­ The Law School presently also favorite place, some students men­ not sure whether Mr. Wang was offers American students the op­ tioned Disney World, stating that it serious. portunity to study Chinese law and was a wonderful combination of Li Xiaoming, however, has been society: The School offers two sem­ technology, imagination, education, disturbed by attitudes toward China's inars, Chinese Law and Society and and fun. form of government. Mr. Li was sur­ Chinese Legal History, taught in al­ Some students have had the prised to fmd here a general para­ ternate years. These courses survey opportunity to view some of the noia concerning communism. He legal thOUght and practice in the country's natural wonders. Tian Hui, feels that nothing is worse than be­ People's Republic of China, focusing a third-year student from Beijing, ing labeled a communist in American particular attention on the relation worked as a summer associate with SOciety: The tragedy is, he stated, of law to social ideals, social change Lewis & Roca in Phoenix, Arizona. that very few people bother to ask and politiCS. The courses specifi­ She therefore had the opportunity themselves if they really understand cally consider socialist theories of to visit the Grand Canyon, which what communism is and how it law, conventional criminal and civil she describes as "gorgeous." Several operates in various different cultures. processes, informal and extrajudicial cities were mentioned as favorite When asked about their worst institutions, international law and places: Washington, D.c., because it experiences in the United States or trade law: The courses are taught is a place where all types of people at Duke, most students spoke of by Jonathan Ocko, who has served can fmd something to suit their homesickness, first year pressures, as an associate professor of legal tastes; Boston, for its beauty, rich illness during exams, and cultural history at the Law School on a part culture, historic sites, and good res­ misunderstandings. A few students, time basis since 1983. Professor taurants and universities; New York, however, had more specific stories Ocko also supervises independent because even if it is not the best to relate. One student had a bad study programs for students who place to travel, it is the best place experience while returning home have specific interests to pursue. He to know America. One student con­ on foot from the doctor. Suddenly, is presently serving as special editor sidered Duke Law School his favorite she felt extremely sick and faint, to the symposium issue of Law and place because it gave him knowl­ so she sat down on the ground in Contemporary Problems devoted to edge and happiness. a parking lot. She asked a woman the Emerging Framework of Civil Wu Yanlei '88 is from Shanghai, who was passing by for help. The Law in China. The conference Of where he taught maritime and pub­ woman responded, ''I'm busy" and symposium authors was held at' the lic international law at Fudan Uni­ refused to help. Eventually, the stu­ Law School in October of 1987. versity. His best time in the United dent did feel strong enough to con­ (See Conference Report at p. 16) States happened at a church in Wash­ tinue walking home. Later the ex­ In addition to the seminar in ington, D.c. at 5:30 in the morning perience helped put into perspective International Trade Transactions with on a cold winter day. Along with a discussion of the good Samaritan China taught at the Law School by some "yuppies," Mr. Wu worked in from her first year Torts class. Gao Xi-Qing, the 1988 Duke in Den- a soup kitchen serving breakfast to the city's homeless. The experience left Mr. Wu feeling happy, because he learned how much some people really care for those who are less fortunate. Wang Yaxiong, who is always curious and optimistic about life in the United States, chuckles over an experience from his summer clerk­ ing experience. After work one day, Mr. Wang went out for drinks at a local bar with a few associates from the Philadelphia firm where he was employed. Unaware that Mr. Wang worked at the firm on a fellowship and received only a living expenses stipend, one of the other clerks asked what he was going to do with Duke law students studying in China also enjoyed visiting the Forbidden City. all the money he was making. Wang L. to r. Dan Scheinman '88, Gerald Lee '85, Ross Katchman '87, Don Gotcher jokingly replied, ''I'll spend all my '85, Sang Ben Xue '89. DUKE LAW MAGAZINE / 38

students from China. Originally, the Law School, by agreement, accepted qualified students from only four Chinese universities. Dean Horowitz stated that admissions decisions will no longer be so exclusive. Duke will rely more on a free market to admit the best candidates. In the future, the Law School may reduce the number of new students each year, to make the program easier to administer. The program will also begin to encourage more LL.M. candidates. In considering the possible effect that Duke's Chinese alumni may have upon the development of law in their own country, Dean Carrington remarked that it would be unwise for China to emulate American law as law cannot be simply transplanted. Such a trans­ Our Chinese students enjoy socializing when not studying. Tian Hui '88 and plant would be suspect by nature. her husband, Peng Ii, with the author's husband, Steven Mandelberg. The Dean hopes that exposure to American law will open the Chinese mark program will offer a course in some English courses. The students legal mind to other possibilities, Trade with the People's Republic of found it particularly useful to be­ with the result being more creative China. The Law School has also of­ come immersed in Chinese language than it would have been otherwise. fered Chinese language courses for and culture. More of our students Wu Yanlei believes that, in the law students interested in working may be able to take advantage of long run, Duke's Chinese alumni on their language skills in addition this type of opportunity now that may exert a powerful influence in to the Chinese language courses Chinese universities are establishing China's legal development and for­ offered by the University programs geared to the needs of eign trade sector. Mr. Wu thinks that A number of our American Americans and Europeans who China will change its power struc­ students have also spent some time want to study in China. ture and the way that talented peo­ in the People's Republic of China. ple are put into positions. These Under the original agreement be­ The Future people will then affect the process tween the School and the Ministry Just as changes are occurring in of modernization. Ten years of an of Education, nine of Duke's stu­ China, Duke's China program may open door policy is up against thou­ dents with at least some prior Chi­ also see some changes soon. In the sands of years of tradition, as well nese language study spent a year at early 1980s, Duke Law School stood as nearly forty years of orthodox the People's University in Beijing or alone in having Chinese JD. stu­ Marxist teachings. Yet in spite of Fudan University in Shanghai. These dents from the People's Republic the frustrating ups and downs that students studied Chinese language, of China. Duke is no longer unique, reform brings, China will likely con­ audited some law courses and taught as many other law schools now have tinue to change. VOL. 6, NO.2 / 39

Changing Deanships

Several law alumni in addition been unable to receive funding from to Pamela Gann are involved in the Legislature for a library addition. changing deanships. Frank T. Read -Establishment of three $1 mil­ '63 will step down as Dean of the lion Eminent Scholar Chairs through University of Florida College of Law a combination of private and pub­ on June 30; he has served as dean lic funding and two $300,000 en­ there since 1981. He has recently dowed professorships which has accepted the deanship at the Uni­ allowed the School to recruit and verSity of California Hastings College retain leading scholars by offering of Law in San Francisco, which he competitive faculty salaries. will begin on August 15. Read will -Establishment of three $100,000 be succeeded at Florida by Duke scholarship endowments and sev­ Law alumnus Jeffrey E. Lewis '69, eral annual scholarships and awards who has served as Associate Dean at which has strengthened the schools' that school since 1982. Thomas A. ability to recruit increasingly well Edmonds '65 also recently changed qualified students and to reward deanships. He left the deanship of outstanding achievement. the University of Richmond School -Increased national recognition of Law in December 1986 to be­ for the School and its faculty stem­ come dean at the University of ming from involvement in national Frank TRead '63 Mississippi Law School in January organizations and conferences and 1987. Dale A. Whitman '66 will be ress which has benefited the school innovative curricular programs and returning to teaching at the Univer­ enormously resulting in national research. Read's philosophy was to Sity of Missouri School of Law at and international recognition. High­ "recognize that we are an integral Columbia where he has served as lights of Read's tenure cited by his part of the legal profession. As the dean since 1982. colleagues include: entry point to the profession, it is When Dean Read steps down -Construction and occupation important that the profession under­ at Florida in June, he will already of the $4.1 million Bruton-Geer Hall, stands what we're doing and that have served as a law school dean a second law school building which we understand the problems facing for fourteen years and as a teacher has relieved a severe space shortage the profession. I believe in a high and administrator even longer. Fol­ at the School. Most of the funding degree of dialogue between the lowing a stint in private practice for the project was raised from pri­ profession and the academy." with a law firm in Minneapolis and vate sources despite the fact that -Broadening of the curriculum, in corporate practice with American the country was experiencing a re­ with emphasis on legal writing, skills Telephone and Telegraph, Read re­ cession, and the fact that the Law training, international law and the turned to Duke Law School as an School had never run a major capi­ enhancement of traditional law assistant professor and assistant dean; tal campaign and had only a small courses. In response to the expressed he later served here as associate dean annual giving program. Dean Read needs of practicing attorneys, Florida ;. and tenured professor. In 1974, he spent much of his tenure, particu­ restructured its legal research and became dean of the University of larly in the early years, on the road writing program to provide individ­ Tulsa College of Law, and in 1979 visiting with alumni who not only ualized instruction and made Legal moved to the deanship of the In­ contributed to the construction of Drafting a required course. The diana University School of Law at the new building but then followed College now has major writing re­ Indianapolis. In 1981 he accepted through with increased support to quirements in all three years. Sev­ the deanship at the University of the school's annual enrichment fund. eral new international curricular pro­ Florida School of Law with the -Four years of Quality Improve­ grams have been implemented in­ avowed goal of "moving that school ment Funding from the Florida leg­ cluding a summer orientation pro­ to the first rank of America's great islature, amounting to $2 million gram for international lawyers and public law schools." The consensus above and beyond the normal state law students, one of only two com­ in Florida is that the Read years con­ funding, though Read has expressed prehensive orientation programs at stituted a period of continued prog- disappointment that the School has U.S. law schools for those who plan DUKE LAW MAGAZINE I 40 to enter American graduate programs. When Read steps down as dean, According to Ken Pye, president of he will be handing the reins to As­ Southern Methodist University and sociate Dean and fellow Duke law former professor and dean at Duke alumnus, Jeffrey lewis '69. lewis Law School, Florida is making its joined the law faculty at the Uni­ mark in the international arena and versity of Florida as an assistant truly "internationalizing the school." professor in 1972, having previous­ Despite the success and enjoy­ ly served as an assistant professor ment he has reaped as dean at Florida, at the UniverSity of Akron School Read says that he and the school of Law. He was promoted to asso­ are ready for a change. "I think I ciate professor in 1975 and to full have stayed long enough to provide professor in 1977. In 1982, he was some continuity: It's now time for named associate dean with respon­ the institution to seek new leadership sibility for budgeting and curricular and renewed energy." He is looking planning. A specialist in civil proce­ forward to his new position at Hast­ dure and evidence, lewis intends to ings. Evidently, Read's experience continue teaching while fulfilling in Florida and his strengths in the his new administrative role. lewis areas of alumni relations and pri­ says that, as dean, he hopes to build vate fund raising figured prominently upon the successes of past deans to Dale Whitman '66 in his selection, which followed a ensure that Florida continues to have national search. Hastings is the na­ one of the best public law schools tion exercises on dispute resolution tion's second-largest state supported in the country. "Our strength lies for ftrst-year law students, and the law school based on enrollment in our alumni, faculty and students, school is becoming nationally known and is the only "free standing" and I plan to call upon that strength as a leader in this growing and in­ public law school in the country, to realize our potential." creasingly important field. meaning that it is governed by an Dale A. Whitman '66 is stepping Whitman also cites success in independent board of directors down as dean of the Law School at recruiting increasing numbers of with the dean functioning as its the University of Missouri in Colum­ minority students, many of whom chief operating officer. In accepting bia. Whitman has devoted most of have already established successful the pOSition, Read noted "Hastings his professional life to teaching and careers while remaining involved is an outstanding law school with law school administration with brief with current minority students and great potential. This position offers stints in private and government current programs at the School. The me a challenge to use whatever tal­ practice. He has served as dean at school has also recruited a number ents I have in a new and creative Missouri, which he describes as an of strong faculty members, and enterprise." immensely rewarding and satisfying Whitman commends the entire fac­ role, since 1982. In reviewing his Ulty for their ability to balance fine years as dean, he notes several pos­ teaching, publication and service itive changes that have occurred at to the bar. the School during his tenure. First, All in all Whitman fmds, "Morale a new building was constructed to is strong, and productivity is high," provide badly needed space. Offi­ so he leaves the deanship with very cial dedication ceremonies for the pOSitive feelings. He does, however, building, which was funded by the "long to return to the faculty and legislature and by alumni and friends to full-time teaching and research." of the School, will be held in Sep­ While serving as dean, he has con­ tember. Though pleased with the tinued to collaborate with Grant addition, Whitman's challenge to Nelson of the Missouri faculty in the School and its alumni as he writing a series of books and articles leaves the deanship is to help see in the field of real estate finance. to it that the School receives the The two have plans for more books fmancial support for its faculty and and articles, and Whitman looks library that will maintain the high forward to having more time to qUality of its programs. In 1985, the devote to "hold up my end of the School established a Center for the partnership." Study of Dispute Resolution under Thomas A. Edmonds '65 left faculty direction. Building on this the deanship of the T.C Williams project, faculty members developed School of Law at the University of jeffrey E. Lewis '69 a book and accompanying simula- Richmond in December of 1986. In VOL. 6, NO. 2 / 41

January 1987 he returned to his taught at the Florida State Univer­ home state of Mississippi to become Sity Law School. Edmonds then and a number of clinical placement dean of the Law School at the Uni­ served as dean at Richmond for ten programs were established. versity of Mississippi, where he be­ years, which he professed to be Edmonds left Richmond with gan his teaching career twenty years "long enough for anyone to serve mixed feelings as he had enjoyed before. The Jackson Mississippi na­ in this type of position at anyone working with the students, faculty; tive began his teaching career at the institution." and alumni there, but he was also Ole Miss Law School in 1966 and To commemorate his deanship, eager to take up the new challenges served there until 1970 with the ex­ the University of Richmond Law awaiting him at the University of ception of one year spent at Duke School Association presented a por­ MiSSiSSippi-that state's oldest and Law School as a visiting faculty trait of Edmonds to the School. At the nation's fourth oldest state­ member. From 1970 to 1977, he the portrait unveiling, the president supported law school. Since his of the Association read a resolution arrival at the MiSSissippi Law School, of appreciation for Dean Edmonds he has been working with the fac­ which thanked and commended ulty and administration to identify him for his "many years of devoted special areas in which the school and distinguished service to the may become well known while hold­ [School]." Among the accomplish­ ing onto long-established traditions. ments cited by the Association were: Because he feels that it is "critically the establishment of a Law School important that the basic budget at Placement Office and creation of the University be augmented," Ed­ the position of Associate Dean for monds is making fund raising-both Academic Affairs; the addition of a public and private-a top priority. library wing; a dramatic increase in In an effort to spread the word re­ funding through the Law School garding his hopes and plans for the Annual Fund; the establishment of School, he spent a great deal of time a firm scholarship program, and the following his arrival at Ole Miss expansion of Virginia's Tuition As­ meeting with legislators and alumni. sistance Grant Program to include It is gratifying to note that so law students. In addition, the school's many of our alumni are engaged in faculty was increased by the addition shepherding the institutions which of both full-time and adjunct mem­ will be providing the next genera­ Thomas A. Edmonds '65 bers; the curriculum was broadened; tion of our profession. DUKE LAW MAGAZINE / 42

Alumnus Profile Versatile, Energetic Leader James M. Poyner '40

The Student Musician the corporate ladder with a chem­ Poyner's musical talent and his ical company. Since then, I have considerable energy helped him to found that the math and account­ fmance his college career. By the ing courses I took and the type age of 12 , having become proficient of thinking processes developed on the drums and trombone, Poyner by studying the sciences and the was playing road engagements with law have served me well." his high school orchestra. In fact, before the advent of child labor The Lawyer laws, Poyner was appearing with Following his graduation from his mother and brother on WPTF's Duke Law School, Poyner began late-night Night Owl show. Thus, it practicing law in Raleigh. His legal seemed natural to form his own career in Raleigh w.as, however, in­ band-the Collegians-in 1933. As terrupted after two years when, in Poyner recalls, "That was in the 1942 , he was called into the Army. '30's and job prospects weren't too The military made good use of his good. We felt fortunate to be able background. Poyner served in the to pay our way through School. legal division of the Chemical War­ We played all over the South and fare Service. In fact, as a 28-year­ in New York City." In fact, the band old major, he became the command­ members did not have a weekend ing officer of a 13-state legal divi­ or summer night free from 1933 sion headquartered in Dallas, Texas. Versatility and energy are per­ through 1937. He received the Legion of Merit for haps the best words to describe Though his career eventually his service. Jim Poyner. These qualities have led in other directions, he contin­ While in Dallas, he continued made him a leader in many areas­ ues his interest in music. "I haven't to think of and promote his home including business, law and com­ played professionally for many years, state. So successful was he in fact munity service-in North Carolina but I do a little arranging and have that he returned to the state not and have kept him vitally involved done some writing." Another mem­ only with his wife, Florence, whom in the growth and change in the ber of his band, Les Brown, did he met and married in Dallas, but state, and, in particular, in the pursue a musical career forming Les also with two army buddies who Research Triangle area. Brown and his Band of Renown. became influential members of the Poyner refers to himself as a true Poyner has been working with his Triangle community. John Geraghty resident of the Triangle. This area is old friend and colleague on a proj­ of New York became a partner in his home, and his roots grow deep ect entitled "Fifty Years of Les Brown the law firm Poyner founded upon here. Poyner was born in Raleigh Music" in California. his return to the state, and Charles where his great grandfather, Aldert Poyner laughingly claims to have Cameron of Mississippi led in the Smedes, had founded St. Mary's been on "the ten year plan in col­ formation of Cameron-Brown mort­ Episcopal College in 1842. Rev. lege." He received both a bachelor's gage company and First Union Smedes was succeeded as head of degree and a master's degree in Corporation. the school by Poyner's grandfather, chemical engineering at North The law firm established by Dr. Bennett Smedes in 1877. Poyner Carolina State before entering Duke Poyner in 1946 became Poyner, later served the School himself as Law School. "My thinking was that Geraghty, Hartsfield & Townsend a member and later Chairman of the combination would prepare me in 1955. Over the next thirty years, its Board of Trustees. as a patent lawyer or help me up the firm prospered and grew into VOL. 6, NO.2 / 43

one of the leading law firms in the He served as president of the North of it. In 1961, when, as he recalls, state. Poyner recalls, "We always had Carolina Bar Association in 1967-68 there were less than 500 people the philosophy of growing with and was Chairman of the Bar Asso­ working in Research Triangle Park, our clients. As they prospered and ciation Committee which solicited Poyner served as General Chairman grew, so did we. Also, our proximity the necessary funds for land acqui­ of the Triangle Area Executive Tour, to the Research Triangle Park was a sition and construction of the Bar which was one of the first programs major factor in our growth. As new Center. The Center was built with designed to bring executives from people came in, we got our share." funds donated by North Carolina across the country to the area so On January 1, 1986, the firm lawyers and was one of only a few they could see its potential for them­ merged with Spruill and Spruill to such centers in the country. selves. As Poyner observes, "That create Poyner & Spruill, one of the Since 1967, he has been a mem­ tour helped us contact a large, select largest law firms in the state. A year ber of the ABA National Conference group of people at one time." later, on January 1, 1987, Poyner of Bar Presidents. He is a Life Mem­ Other such visits followed as & Spruill merged with two other law ber of the Fellows of the American the area developed. In 1964, as firms-Harris, Cheshire, Leager & Bar and a member of the American President of the Raleigh Chamber Southern and Meadows Johnson Judicature Society, serving as Direc­ of Commerce, Poyner was involved & Spinks-to become the largest tor from 1972 to 1976. He has also in a similar venture made possible firm in the Triangle area and the served his Law School. He was a by the hard work and cooperation fourth largest in North Carolina. member of the original Law School of business and government leaders On May 1, 1988, Poyner & Spruill Board of Visitors and is presently from around the region and across opened a Charlotte, North Carolina a life member of that body. the state. The Chambers of Raleigh, office. Durham and Chapel Hill with the Poyner insists, however, that the Business and Community Leader cooperation of nine other cham­ firm will not forget its roots. While Poyner's energy has extended to bers arranged for a two-day tour its practice is statewide and includes a wide variety of activities in the of the Piedmont Crescent for then a number of multi-national com­ business community and to the pur­ Governor Sanford and 280 business panies, a majority of its clients are suit of civic improvement. In addi­ leaders. Poyner observes, "We never located in the Research Triangle area tion to founding his law firm, Poyner had a problem getting the cities' and Eastern North Carolina. "We was co-founder of Cameron-Brown business and government fo coop­ have always been a business oriented Company, mortgage bankers, and erate. It always seemed that folks firm-securities, taxes, banking, real founder and Chairman of the Board just linked arms and made things estate and corporate law. I don't see of the Eastern Standard Insurance happen." The results of this kind that changing." The firm is organized Company. Much of his time in re­ of showcasing the potential of the into four divisions: business, real cent months has been spent as area are obvious. The Triangle area estate, litigation and-recognizing Chairman of the Executive Com­ continues to grow and attract new the increasing complexity of "the mittee for First Federal Savings and people and new technology. Never connections between business, gov­ Loan Association where he has also content to rest on his laurels, how­ ernment and the law ' ~government served as Director and Vice Chair­ ever, Poyner points out that "as we relations. Poyner feels that the firm man of the Board. continue to grow, I believe one of is fortunate to have partners who Poyner's community interests the main problems we must address, are familiar with the complexities ranged from local to regional and in addition to the basic challenge involved in this type of practice. statewide. He served as president of of growth and how to manage it, Co-Chairmen of the Government the Raleigh Chamber of Commerce. is where will the institutions that Relations division include former He also served two terms in the started it all, the universities, expand. Governor James Hunt, former Asso­ state Senate in the late 1950's. His In order to continue our progress ciate Justice of the North Carolina most Significant contribution to the we must find ways to help the in­ Supreme Court, J. Phil Carlton and region, however, may have been stitutions grow." Duke Law School alumnus and for­ the vision and leadership he con­ Since 1981, Poyner has been mer State Representative Marvin D. tributed to the growth and contin­ semi-retired. Though the emphasis Musselwhite, Jr. '63. Musselwhite is uing success of the Research Triangle so far seems to have been on the also Chairman of the Real Estate Di­ area. "Governor Hodges had the "semi" rather than the retired, he vision and serves as Co-Chairman vision and foresight," Poyner remem­ is looking forward to having more of the firm's Management bers, "but I think the development time to play golf-a hobby which Committee. of the Triangle area was almost to has become a passion. Indeed, he In addition to the time devoted be expected. As a true Triangle resi­ has played in sixty-four pro-ams to his private law practice, Poyner dent, I just knew that the univer­ in the last twenty years including has devoted his considerable energy sities would be the center of some­ fourteen Bob Hope Classics. He is to the administration and enhance­ thing wonderful. I was happy to be hoping to be able to spend more ment of professional associations. a part of it." Poyner was a big part time at this pursuit. DUKE LAW MAGAZINE / 44 SPECIALLY NOTED Williams Retires as Chairman of Board of Trustees

tus Terry Sanford and the search current building project as a critical for a successor; record numbers of step necessary to maintain both the applicants to the undergraduate and Law School and University's aca­ graduate schools; successful capital demic preeminence. He emphasizes fund raising projects and the plan­ the need for "great cooperation" ning, approval, and/or completion within the University to ensure the of a number of "brick and mortar" project's success over the next sev­ projects, including the Law School's eral years. On the issue of cooper­ own plans for a building renovation! ation, Williams favorably notes that addition effort. the "good thing about the Duke Viewing the proper role of the Board of Trustees is that they're Board of Trustees as a policy-making trustees for an entire institution. body largely removed from the day­ This sort of orientation is impor­ to-day administration of the Uni­ tant and should continue as it helps versity; Williams said he focused on ensure University-wide progress." two major objectives while chair. Describing his time as Chair First, he insisted that the university of the Board as a "fascinating engage in "long-term planning in a experience-the most interesting fairly meticulous way." Calling this and challenging volunteer position an "ongoing process," Williams be­ that I have ever had;' Williams will L. Neil Williams, Jr. (A.B., 1958; lieves that the University must con­ continue to serve the Board as a J.D., 1961) stepped down as chair stantly work to "identify its true trustee through the remaining four of the Board of Trustees of Duke needs over time." One visible result years of his second six-year term University in May after deCiding not of this planning emphasis is the es­ (University by-laws limit trustees to seek a sixth term. Williams had tablishment of the Duke Land Re­ to two consecutive six-year terms). served as chair since 1983. In an­ sources Committee which studies "I believe in the institution-the nouncing his decision, Williams said the University'S long-range land use. need to support it financially and that although he could continue to During his tenure as chair, Williams otherwise. I am happy that I've been serve enthusiastically in the chair also continued what he termed the able to give something back to Duke pOsition, "five years seem[ ed] like "targeted excellence" approach ini­ through service on the Board. And a right time to change . . . . It is tially proposed in a report written as always, Duke continues to give important that other people have several years ago by A. Kenneth Pye, something to me-my years on the the opportunity to make their former Chancellor of the University Board have been a wonderful learn­ contribution." and Dean and Professor of Law, who ing experience." In order to ensure a smooth is currently president of Southern Active in Law School alumni af­ transition, Williams informed the Methodist University. According to fairs as a member of the Law School Board in May 1987, one full year in Williams, since it is "basically im­ Board of Visitors, Williams says that advance, that he would not seek a possible for Duke to do everything he hopes to have more time to be sixth term as chair. During the past well, it is important for the Univer­ "directly involved in law school af­ year, Williams has worked closely sity to focus on things it can do fairs in the future." He notes, how­ with Fitzgerald Hudson, vice-chair well-that will make a contribution ever, that his immediate plans are of the Board of Trustees, Williams' that is distinctive." to "be fully engaged in the practice successor as chair. Williams said he With respect to the Law School, of law. I am lucky that my family will also continue to serve on the Williams notes that it is one of the and partners at the law firm (Williams Board's Executive Committee through areas of the University that has made is currently Managing Partner, prac­ the 1988-89 academic year to pro­ "tremendous progress" under the ticing in the area of corporate law, vide further assistance with the targeted excellence approach. How­ at Alston & Bird in Atlanta) have transition process. ever, he adds that "an unftnished been so understanding in providing Williams' term as chair coin­ item on the agenda and a priority the flexibility to allow me to attend cided with numerous changes and concern is the need to enhance the to my Duke responsibilities. It's accomplishments at Duke, including Law School's physical facilities." now time for me to make up for the retirement of President Emeri- Williams views the Law School's their indulgence." VOL. 6, NO. 2 / 45

Hardin named UNC Chancellor

what attracts me. Something I have and correct infractions in NCAA not done in a very interesting life rules. In 1987, SMU was hit with full of experience and full of a lot the most severe penalty ever admin­ of happiness and satisfaction is to istered by the NCAA when the foot­ preside over a large public univer­ ball program was suspended for sity with all those political processes continued infractions of NCAA rules and structures. I can't wait to give even while on probation. it a try." Hardin was nominated for Hardin has been president at the chancellorship after an eight Drew UniverSity since 1975, where month national search that attracted he is said to employ a low-key man­ 105 nominations and applicatiOns. agement style with high visibility in Paul Hardin '54 has been elected While at Duke Law School, institutional relations. During his to the post of Chancellor of the Uni­ Hardin served as editor-in-chief thirteen years at Drew, the school's versity of North Carolina by the of the Duke Law journal. Follow­ endowment grew from $22 million UNC Board of Governors upon the ing his graduation, he practiced law to $70 million, and Hardin is look­ recommendation of UNC President in Birmingham, Alabama and served ing forward to one of his chief tasks C. D. Spangler, Jr. He takes office with the United States Army Counter at UNC-leading the campus in its bi­ July 1, 1988. At a press conference Intelligence Corps before returning centennial fund raising effort. Hardin announcing his selection, Hardin to join the faculty at Duke Law also hopes to work to strengthen stated that he would bring "stamina, School in 1958, becoming a full professional programs and to im­ enthusiam and a lot of experience" professor in 1963. In 1968, Hardin prove faculty salaries and fringe to his new post. He has previously became president at Wofford Col­ benefits. He does not, however, served as president of Wofford Col­ lege in South Carolina where he foresee radical reorientation as the lege, Southern Methodist University remained until 1972 when he was University is already a leader among and Drew University. Though admit­ named president of Southern Meth­ state colleges and research universi­ ting a lack of experience at a large odist UniverSity in Dallas. He re­ ties. Hardin and his wife, Barbara, public research university, Hardin signed that post in 1974 following both North Carolina natives, are fmds that "the very thing that makes disagreements with some university looking forward to returning to some people wonder if I'm sane is trustees over his decision to report the state. Horowitz named Murphy Professor

Donald L. Horowitz has been named the Charles S. Murphy Pro­ low Prize of the National Academy fessor of Law. Horowitz, who is also of Public Administration for his book, a professor of political science, be­ The Courts and Social Policy. His gan his teaching career at Duke in most recent book is Ethnic Groups 1980. With the exception of service in Conflict. He is also a recipient as an attorney in the Civil Division of the Woodrow Wilson Center Fel­ of the U. S. Department of Justice, lowship, a Rockefeller Foundation he has primarily been engaged in Fellowship, and a Guggenheim research at the Harvard Center for Fellowship. International Affairs, the Council on Charles S. Murphy, a North Foreign Relations, the Brookings In­ Carolina native, graduated from stitution and as senior fellow at the Duke UniverSity in 1931 and from Smithsonian Institution's Research Duke Law School in 1934, and also Institute on Immigration and Ethnic received an LL.D. in 1967. Mr. Murphy Studies. was a distinguished public servant, Horowitz, who has served as holding positions in the administra­ Chairman of the American Academy tions of Presidents Truman, Kennedy of Arts and Sciences Planning Group and Johnson. He also served on on Ethnicity since 1984, has lec­ the Law School Board of Visitors tured and published extensively. In and on the University Board of 1977, he received the Louis Brown- Trustees. DUKE LAW MAGAZINE /46

man on his first day of basic train­ ing, Professor Sparks volunteered Professor Sparks Retires* when an officer asked if any of the new recruits could type. ("It didn't "What did Hattie have?" is the sound like too bad a deal to me.") infamous question Professor Bertel Sparks was quickly asSigned to the M. Sparks perenially asked his first personnel and administration unit year property students early in the at the base. "I never took another semester when discussing the case day of basic training," he recounts. Lewis v. Searles. 1 After several in­ "The base officers essentially 'passed variably incorrect or at least im­ me through' and looked the other precise answers (My notebook con­ way!" tains a marginal notation of the Thus began a four and one-half Professor's general advice that day: year stint in the Army that encom­ "Be precise-know what your words passed such diverse experiences as mean! "), further brave volunteers patrolling the California coast fol­ would be acknowledged by Pro­ lowing the Japanese invasion at fessor Sparks. He would lean far Pearl Harbor, overseeing various over the lectern with both arms administrative responsibilities in sprawled as if to get a better mea­ domestic based personnel assign­ sure of his students, fix his gaze for would fmd a way to attend law ments, and "trying to catch spies" several seconds on a student who school. during overseas duty with the Coun­ had her hand raised, take off his But the path to law school would terintelligence Corps in Casablanca, glasses, and finally invite comment be a bit longer than average and Iran, Algiers, France and Germany. with his trademark query: "Well, contain a few detours. After work­ Always a quick study, Professor what do you want to tell us?" After ing his way through Eastern Ken­ Sparks was given increasingly im­ almost forty years as a law profes­ tucky University during the worst portant duties in the Counterintel­ sor, Professor Sparks has retired but period of the economic crisis of ligence Corps. He considers his not before we could turn the tables the 1930s, Professor Sparks gradu­ toughest and most sensitive assign­ and put his question back to him. ated in 1938 with a B.S. degree as ment acting as special liaison to A native of Kentucky, Professor well as some pressing fmancial obli­ General Eisenhower's headquarters Sparks showed a keen interest in gations. "The country was still in in Paris coordinating personnel activ­ the law at an early age. During his the midst of the depression, and I ity for the Allied Southern European grade school years, he would sneak quite simply didn't have the money invasion in August 1944. Although away from his chores several times to attend law school." Instead, he given the opportunity to return to per year on days when the circuit found a job as a teacher at a local the United States in a teaching ca­ judge made his visits to McKee Vil­ public high school, teaching a "lit­ pacity at an Army training post in lage. Once inside the courtroom, tle bit of everything-history, public early 1945, Professor Sparks did the future law school professor was speaking, math, commercial law, not want to return to the States un­ treated to an interesting docket­ and 'business machines,' or typing less his service commitment was primarily an assortment of boot­ as we now call it." Professor Sparks over and he could attend law school. legging and moonshining cases, lar­ taught for three years, during which ("I didn't want to go back home ceny and assault actions, with an time he applied and was admitted unless I could get on with my life.") occasional murder prosecution to law school. Planning to enroll in So he violated another cardinal sol­ thrown in for good measure. "I law school in the fall of 1941, Pro­ dier's rule ("get back to the States always knew I was going to be a fessor Sparks was diverted by yet any way you can"), had himself de­ lawyer someday," Professor Sparks another national emergency-World clared "essential" by the command­ recalls. Although the product of a War II. He was drafted into the U.S. ing officer in Paris, and stayed on rather modest background-few Army in June 1941, so near and yet to assist with the Allied occupation thOUght he would "attend college, still so far from attending his first of Europe. He remained in France let alone law school'-'--Professor law school lecture. until October 1945 when he re­ Sparks would not give up on the If he could not attend law school, ceived his honorable discharge and dream of the young man who hung however, Army life soon did not returned to the States. around the local courthouse-he appear to be all that unpleasant an The war was over, the G.I. bill alternative. Drafted with a "one year had been enacted and Professor commitment;' the would-be law Sparks now had the time and money *The author; Mark DiOrio '88, student reported to basic training to attend law school. He enrolled took first year property with in Fresno, California. Violating one for the next entering law school Professor Sparks. of the cardinal rules of the enlisted term at the University of Kentucky VOL. 6, NO.2 /47

in January 1946. (To accommodate Cases on 7rusts and Estates (1965), and personal progress of his stu­ demand, Kentucky was admitting as well as numerous articles in the dents, assisting many with their job students at the beginning of each fields of both law and economics. searches over the years, both dur­ quarter.) Possibly trying to make up At NYU, as at Duke, Professor ing their time at the Law School for lost time, Professor Sparks at­ Sparks has counted many "movers and following graduation. tacked the study of law with a ven­ and shakers" in the world of law, Although Professor Sparks be­ geance. He completed the require­ politics and business among his for­ lieves that the intellectual caliber of ments for the LL.B. degree in just mer students. For example, he fondly law students at Duke continues to slightly over two years, attending recalls meeting a particular incom­ improve, he has noticed that today's law school for nine consecutive ing first year student on a Saturday students in general appear to be quarters, and compiling an outstand­ afternoon several days before the less focused on the practice of law ing record of academic achievement fall term was to begin while the lat­ than they once were. While Sparks in the process. Professor Sparks was ter was walking around the halls of concedes that this is not necessarily graduated first in his class at Ken­ the NYU law school ("casing the a bad development, it does strike tucky and served as Editor-in-Chief jOint, most likely"). After some in­ him as odd that many current stu­ of the Kentucky Law Journal. troductory pleasantries, Professor dents have never been inside a court­ It was at Kentucky that Pro­ Sparks asked the young man from room. But, whether headed for fessor Sparks crystallized an interest Oregon what he hoped to do with practice in the courtroom or not, in becoming a law professor and his law degree. The student replied Professor Sparks' students have decided to pursue graduate study that he wanted to be a United States received excellent training in his in the law: He chose the University Senator and planned to return to classes-he has always demanded of Michigan for his graduate work­ his home state as soon as practicable that students begin developing high a likely choice considering that to challenge and, of course, beat standards of profeSSionalism from Michigan had one of the great prop­ the long-term incumbent in a local their first day in the law school en­ erty scholars of the era, Lewis Simes, election. Maybe seeing a similarity vironment. Calling himself a bit "old on its faculty. Professor Sparks ex­ in the young man's determination fashioned," Professor Sparks em­ plains, "I thought Michigan was the to his own early ambition to attend phasizes that his teaching philos­ only place for me. I had wanted to law school, Professor Sparks was ophy has always been simple-to attend graduate school there for impressed with the student's drive impress upon students the virtues quite some time." Professor Sparks and sense of destiny A few short of hard work and thorough prep­ was a Cook fellow at Michigan and years following his graduation from aration; to instill in them a con­ studied directly with Simes, his ad­ NYU, Bob Packwood played out sciousness of their future role and visor: "He was a wonderful advisor­ his scenario perfectly, winning the responsibilities-both to clients and a real gentleman, extremely sup­ first of many terms to the U.S. Senate. to the larger society-as attorneys; portive of the graduate students, Professor Sparks came to Duke and to foster a sense of commitment generous with his time, and not Law School in 1966 after a stint as to the practice of law as an honor­ one to show off his exhaustive in­ a visiting professor. "I liked it so able profession. tellect at the expense of making much that I decided to stay!" While When asked about future plans, any of us [the graduate students1 at the Law School, he continued Professor Sparks' face breaks into look or feel stupid." teaching in the areas of Trusts and the somewhat cryptic smile he often After Professor Sparks received Wills and Future Interests, but also flashed during his lectures when an LL.M. from Michigan in 1949 added the first year property course, simplifying a particularly difficult (he later also earned an SJD. from which he hadn't taught that often case or mystifying concept: "I've the University), he moved directly at NYU. Professor Sparks' property been near enough to the top of life's to a teaching pOSition at New York lectures have been a mainstay of mountain," he says, "to see the other University. Although New York was the first year curriculum at Duke side. And I'm happy to report that a long way from both McKee Village for many years. Well known for his there is life after retirement!" Un­ and Ann Arbor, living in a major insistence that students prepare case fortunately, for future generations city was another one of those ex­ briefs for class, Professor Sparks of Duke students, that retirement periences that Professor Sparks just reports that "even if they don't like means that there will be something "had to have. New York seemed to to do it at the time, most students missing from their law school ex­ be the place to be. It was where it eventually realize that preparing perience, not the least of which is was at, so to speak." At NYU, he briefs and closely reading the cases that Lewis v. Searles will just be­ taught primarily in the areas of Wills helps them immensely in the long come another case in the Property and Trusts and Future Interests, and run. They're better able to see both Casebook. also served for a period of time as sides of an argument and to recog­ Director of Admissions. While at nize and distinguish closely analog­ 1. 452 S.w.2d 153 (1970). For those who are interested, Hattie Searles had a fee simple de­ NYU, he also published two books, ous fact patterns." He has always terminable subject to divestiture of an undivided Contracts to Make Wills (1956) and taken a keen interest in the academic two-thirds interest upon her marriage. DUKE LAW MAGAZINE / 48

In Memory of David F. Cavers*

flections on the subject of profes­ Genius is a word that appears sionalism. That discussion was a frequently. That is a big word, yet reprise to a conversation held in one not lightly used. Its use in this 1955 about a seminar paper I had case reflects enormous admiration written on Karl Llewelyn's ideas for David's intellectual gifts, partic­ about legal education. On that ear­ ularly for his ability to discern and lier occasion, we had reflected on depict central realities even when the nature and causes of the vitu­ obscured or eclipsed by multiple peration between Karl Llewelyn illusions. and Roscoe Pound. On both occa­ He wrote a pure prose and im­ sions, the teacher evaluated the stu­ posed that style on his students, dent's appreciation of the gentle where it is still reflected in their virtues which the student sadly letters written a half century later. lacked. It was a style also imposed on his Never a man to lead the unex­ journal, Law and Contemporary amined life, David instilled an am­ Problems, during the years of his bition perpetually to question the editorship. That, I suspect, as much assumptions which underlie and as the novel nature of the publica­ shape the institutions which we as tion accounts for its stunning suc­ law teachers inhabit, preserve, and cess, a success which our school extend. For these lessons, though enjoys to this day. imperfectly mastered, I will always But it was more than a literary I am honored to share in this cel­ be grateful. style; it was an eye for the previously ebration of the life of David Cavers. I am here today, however, not unrecognized center of a matter I come here in two capacities-as merely to express my own grati­ enabling him to make complex his student and as the representa­ tude, but also that of an institution matters truly less complex. Indeed, tive of Duke Law School, an insti­ which greatly beneflted from its as­ alas, if only there were more men tution which still bears his stamp. sociation with David Cavers. Our like David Cavers, we would not be I flrst met David Cavers in Sep­ professional law school at Duke bound to fulfill E.B. White's awful tember 1954, when as a third year was founded in 1930; David came but indubitable prophecy that "com­ student I sought admission to his to us in 1931, and remained on our plexity has a bright future." Oh that graduate seminar on Legal Educa­ faculty through his wartime service David might have been the drafts­ tion. From that day until his death, in the government until his depar­ man of the Tax Simpliflcation Act! David Cavers was my teacher. Thus, ture to Harvard in 1945. Yet even his pure style and his as recently as 1986, we held a long, David was revered by his students eye for simplifying themes were and for me instructive, discussion and colleagues at Duke. There are not all. Due must be given to the of the vituperative controversy in barely 200 living alumni who at­ idea of David's journal, which fea­ which I became enmired by my tended our law school during David's tured cross-disciplinary study of use or misuse of Mark Twain's re- time, and I have received letters current legal issues as a constant from over forty in the last month, theme. It has been said that a genius most recalling a special event in is one who does the right thing * These remarks were delivered by which David had indelibly touched flrst, and, in that sense, his journal Paul D. Carrington, Dean at Duke their lives. Most share the conclu­ was ingenious. It reflected, more University School of Law, at a cere­ sion written in a 1934 postcard by perhaps than any other institutional mony celebrating the life of David a flrst year student to his parents in development of the first half of this Cavers, held at the Memorial Church, Cedar Rapids: "Cavers was best." century, the creative force of Legal Harvard University, April 22, 1988. There are, however, more specillc Realism, the dominant jurisprudential Professor Cavers died March 5, 1988. themes to those letters. expression of that time. In his flrst VOL. 6, NO.2 I 49

foreword, he insightfully contrasted defense on its head, revealing its writing. Thus, as a one-time student his enterprise with that of the Har­ fundamental unsoundness. This pro­ of the conflict of laws, I carry with vard Law Review, which he had duced a concession by the student me David's engaging hypothetical earlier served as president. He, of that he had unwisely approved the used as a theme to his elegant 1933 course, venerated the Review; yet it decision; the concession was then article: is now true that Law and Contem­ followed by another series of gentle A salesman induces a married porary Problems has become as questions which revealed the even lady in state A to order several venerable as was the Review at the greater weakness of the oppOsite feet of belles lettres. Her order time of his writing. position which the student had just is received and accepted by the It is a further mark of David's adopted as his own, causing him at publishers at their offices in state genius that, although he edited an last to reaffirm his original support B and they express the books interdisciplinary journal, he was a of the outcome, if not the reason­ to her residence in state A. After lawyer's lawyer, making no pretense ing, of the decision. reading through two inches and of attainment in fields other than But David's kindness to Duke paying for six, she repents of his own. There is irony that a found­ students went far beyond the class­ her bargain. The publishers sue ing editor of such a journal should room. Remembered are the beck­ in state A. The lady pleads want be primarily devoted in his own oning call of the clanking of iron of capacity to contract. [T]he work to the field of conflict of laws, against iron in late spring afternoons law of state A is reminiscent of a subject that can rightly be de­ behind our library, when David the time when husband and wife scribed as a study of problems that would demonstrate the superiOrity were one . . . [while] the law of lawyers make for themelves, prob­ of the South Carolina over the North State B mirrors the latest views lems having almost no connection Carolina method of pitching horse of the National Woman's Party to the insights of any other academic shoes. Remembered also was the on sex equality before the law. discipline. Indeed, when Law and variation on ping pong doubles I also recall the gentle homily Contemporary Problems published played with lungs not paddles, the used to illustrate the difference be­ a symposium in honor of David on object being to blow the ball off tween the conflict of laws theories the subject of Conflict of Laws, it the table at the adversaries' end. of Walter Wheeler Cook and Learned was not to be imagined that any­ One student from California, then Hand, long perceived to be the same. one but lawyers could be asked to in his first year of law school, still The tendency to conflate these two contribute. Some day we may have remembered the menu of a 1934 theories reminded David of: scholarship on the Economics or Christmas dinner at the Cavers' the way in which my son re­ the Sociology or the Psychology of home. Another recalled an unex­ solved a like problem when, at Conflict of Laws, but it would be pected visit to his Denver law office the age of four, he encountered a bold special editor who would in 1940. Many recalled his help in tuna fish salad. "Isn't that chick­ undertake responsibility for a sym­ securing employment, no easy mat­ en?" he inquired after the first posium of such articles. What is ter for a graduate of a new school bite. Told that no, indeed, it was reflected in this irony is the breadth hitting the streets filly years ago. fish, he restored his world to of David's mind and the range of Because of his kindness and con­ order and concluded the matter his interests, both so great as to jus­ cern, members of that generation by remarking to himself, "Fish tify the deSignation of genius. He of Duke students consulted David made of chicken." brought remarkable intellectual about their careers for many years, Unifying this remarkable intellect breadth to bear on his arcane field. continuing to do so long after he and this gentility was another qual­ Genius was one theme of our had come to Harvard. And more ity which for at least some of us regard for David, but it was secon­ than one continued to seek his was his most memorable trait-his dary to our esteem for his kindness counsel following his retirement exceptional grace. More than a few as a teacher. His kindness extended to Florida. of us have tried to emulate that to the classroom even at a time Mingled with that kindness was precious inner calm reflected in both when harsh rigor was the standard a gentle humor that David brought his thought and his demeanor. He affect of the law teacher, an affect to his teaching and writing. It was seemed throughout to have lived which provided the inspiration for an understated yet contagious humor. his life according to the injunction the legendary Professor Kingsfield. Often it was just an unexpected of William Cullen Bryant: As a teacher, he was "swift to hear, flourish, perhaps merely a turn of so ... that when the summons slow to speak, and slow to wrath." phrase, that interrupted the simple came to join the innumerable Well-remembered still is an event in purity of his language. Or perhaps caravan, he . . . [would be] sus­ which David called upon the ablest more frequently it was simply an tained and soothed by an unfal­ student in his class to defend a judi­ astonishing economy of language. tering trust, like one who wraps cial decision. An able defense was The humor is not really cap­ the drapery of his couch about made and followed by a series of tured in remembered events. It is him, and lies down to pleasant gentle questions which turned the perhaps better preserved in David's dreams. DUKE LAW MAGAZINE / 50

Law School Gifts According to materials collected O'Connor & Hannan. His father, and privately printed by Dean Mor­ Robert Wheaton Walter, also lives decai's students, this era at the law in Denver where he has been active School was not only exciting and in the establishment and oversight challenging but inspirational. "We of companies which supply equip­ didn't just study law, we lived law. ment to the oil industry. Mr. Mordecai was inspirational. He Gwynn Swinson, Assistant Dean ran a strictly professional school for Admissions and Student Affairs and taught law 'in the grand manner' points out that such scholarship with a single aim: to make great funds are increasingly important to lawyers ... . He loved his students, the School and its students. "With and they loved him." the cost of tuition continuing to rise, Richard C. Kelly, who graduated it becomes increasingly important from the School in 1907, was among for us to be able to offer fmancial the students inspired by Dean Mor­ assistance to well-qualified students." decai. Mr. Kelly went on to establish himself as an outstanding attorney Miller & Chevalier Award and citizen in Greensboro. President The Washington, D.c. law fIrm Samuel Fox Mordecai Brodie noted, '~s [the family's 1gen­ of Miller & Chevalier has had a long­ eroSity will help the law School standing connection with the law R.C. Kelly carry on the tradition of excellence School both as a fIrm and through Law Endowment Fund established by Mr. Mordecai, this its members who are Duke law The Follin family of Greensboro, endowment is a particularly apt trib­ School alumni. This spring, the law North Carolina has established an ute to these distinguished attorneys." fIrm established an annual award at endowment fund at the law School the law School to honor three sec­ which will be used to provide schol­ Walter Law Scholarship ond year students who have per­ arships to law School students. Ms. Endowment Fund formed exceptionally well as mem­ Ellen Kelly Follin wished to estab­ Robert William Walter '81 estab­ bers of the editorial boards of the lish the fund in honor of her father lished a scholarship endowment fund three scholarly publications. ReCipi­ Richard C. Kelly and her grandfather, in the name of himself and his father, ents will be chosen by the officers Samuel Fox Mordecai. Samuel Fox Robert Wheaton Walter of the journals. An award of $500 Mordecai served as dean of the Duke '47. Mr. Walter wishes to have schol­ will be presented to each recipient University law School from 1905 arships awarded to "well-rounded at the annual banquets for the Duke to 1927, and recipients of the schol­ students intending to pursue busi­ Law Journal, Law and Contempo­ arships will be known as Mordecai ness law careers." Mr. Walter is prac­ rary Problems and Alaska Law scholars. ticing law in Denver, Colorado with Review. VOL. 6, NO.2 / 51 Alumni Activities

county's Economic Development internationally, Gordon is also a Class of 1937 Corporation and chairman of the partner in the Gordon & Scalo law Richard M. Nixon has a new Delaware Heritage Commission. firm in Bridgeport, Connecticut. book on the market entitled 1999: Victory Without War. The former Class of 1950 Class of 1956 president described his book as Nathan H. Wilson joined the Carl P Rose is now engaged "the product of a lifetime of study firm of Ulmer, Murchison, Ashby in the private practice of law in the and on-the-job training in foreign & Taylor in Jacksonville, Florida, District of Columbia and serves as policy" According to the New York as a senior partner in late 1987. Special Counsel to the Farm Credit Times, Nixon demonstrates his state­ Council. He and his wife, Ruth, re­ craft by answering the questions he Class of 1951 side in Arlington, Virginia. raises about the present state of the Arnold B. McKinnon was named world in a thorough and systematic national trustee of the National Board Class of 1959 manner. of Boys Clubs of America in March Robinson 0 Everett was pre­ 1988. McKinnon will play an active sented the Earl Kintner Award by Class of 1939 role in determining the goals and Federal Bar Association President Erma G. Greenwood, "of coun­ policies which guide the national Stanley Fisher at the FBA annual sel" to the firm of Kramer, Johnson, organization. He serves as president convention in Memphis, Tennessee Rayson, McVeigh, Leake & Rodgers in and chief executive officer of the in September 1987. Everett, the re­ Knoxville, Tennessee, is still actively Norfolk Southern Corporation and Cipient of the FBA's most prestigious engaged in the trial of product lia­ resides in Norfolk, Virginia. award and member of the faculty bility cases, representing defendants. at the Duke University School of Class of 1954 Law, is serving as Chief Judge of Class of 1940 Marshall G. Curran is now the U.S. Court of Military Appeals Margaret Adams Harris was associated with McCune, Hiaasen, in Washington, D.C honored recently as Woman of the Crum, Ferris & Gardner in Fort Year for 1988 by the Quota Club of Lauderdale, Florida. Class of 1962 Greensboro, North Carolina. Harris Paul Hardin was elected to the ]. Marne Gleason recently ac­ was chosen because of her contri­ post of chancellor of the University cepted the pOSition of Vice President butions to the community spanning of North Carolina at Chapel Hill, with MONY in Purchase, New York. forty-eight years. A former Greens­ effective July 1, 1988. (See article james W McElhany, a nationally boro Mother of the Year, Harris on pg. 45.) recognized expert in trial practice also served as president of the local and advocacy, served as the keynote PTA council, and a former officer Class of 1955 speaker at the Drake University 51st of the N.C Congress of PTAs, chaired john A. Carnahan received the Annual Supreme Court Day Week­ the curriculum study committee for George W Ritter Award presented end in March 1988. McElhaney, a the Greensboro Schools, and was by the Ohio State Bar Foundation Joseph C Hostetler professor of the first woman to serve as chair in November 1987. Carnahan is a trial and advocacy at Case Western of the Greensboro Board of Educa­ partner in the firm of Arter and University School of Law, holds one tion. In addition to other responsible Hadden in Columbus, Ohio. He of only two endowed chairs in trial positions in state-wide education, served as president of the Ohio advocacy in the nation and is the Harris is a Duke University trustee State Bar Association in 1983-1984. author of Effective Litigation, Trials, emerita. She served as the first wom­ The Foundation presents the award Problems and Materials and Trial an president of Duke's General annually to a public agency, court, Notebook. He is a faculty member Alumni Association. or individual in recognition of out­ of The Professional Education Group standing contributions to justice. and also serves on the faculty of Class of 1948 Abraham 1. Gordon was recently the National Institute for Trial Ad­ Robert P Barnett received the chosen district governor-elect for vocacy in Boulder, Colorado. Wallace M. Johnson Award for Rotary's 57 club Southern Con­ community service in March 1988 necticut district. Gordon, a past Class of 1963 at the 65th anniversary dinner of president of the Bridgeport Rotary Frank T. Read was recently the New Castle County Chamber Club, will serve as governor-elect named dean of the University of of Commerce. Long active in the for 1988 and will automatically serve California Hastings College of Law Wilmington, Delaware, community, as governor during the 1989-90 year. in San Francisco. Read will assume Barnett is currently president of the An active Rotarian nationally and the deanship on August IS, 1988. DUKE LAW MAGAZINE / 52

Read was selected following a na­ Class of 1967 john C. Weistart, professor of tional search. He served as dean of Lanty L. Smith finalized the pur­ law at Duke University, was the re­ the University of Florida College of chase of the Precision Fabrics Divi­ cipient of the 1988 Distinguished Law in Gainesville for seven years sion of Burlington Industries, Inc., Teaching Award. Weistart addressed where he will be succeeded by of Greensboro, North Carolina, in the graduating class at the Law jeffrey Lewis '69. (See article on February 1988. The new corpora­ School's degree awarding ceremony pg.39.) tion organized by Smith is Precision May 8, 1988. Fabrics Group, Inc., and he serves Class of 1965 as the firm's chief executive officer. Ward B. Stevenson, jr: and his wife, Margot, are living in wndon, Class of 1968 England. Stevenson is the resident Robert K. Garro, vice president partner in charge of the wndon of the Continental Bank in Chicago, office of Rogers & Wells. recently authored the "Forms of Holding Title" chapter for the 1988 Class of 1966 supplement of Basic Estate Plan­ Robert D Cabe became vice ning published by the Illinois Insti­ president and general counsel of tute of Continuing Legal Education . . Arkansas Blue Cross and Blue Shield Stephen P Pepe co-authored in Little Rock in February 1988. In Avoiding & Defending Wrongful March, he was also elected secretary Discharge Claims. The book was of the company. published through Callaghan & james B. Maxwell was recently Company and released in the sum­ elected a Fellow of the International mer of 1987. Society of Barristers. The Society's membership of approximately 600 trial lawyers is dedicated to excel­ lence in advocacy, to the preserva­ tion of the advocacy system and of the right to trial by jury, and to the encouragement of young lawyers Charles L. Becton '69 to enter the field of trial practice. Maxwell is a member of the Durham, Class of 1969 North Carolina, firm of Maxwell, Charles L. Becton, North Carolina Martin, Freeman & Beason. Court of Appeals, received the William J. Brennan, Jr. Advocacy Award at ceremonies held at the University of Virginia on January 10, 1988. Becton was the second judge to receive the award named in honor of the US. Supreme Court Justice. Becton was honored for his efforts to improve the trial skills of lawyers. He teaches trial advocacy classes at the University of North Edward A. Reilly '68 Carolina School of Law, where he is the John Scott Cansler Adjunct Edward A. Reilly, a tax and estate Professor of Law, and at the Duke planning lawyer, is now a partner University School of Law, where he in the Research Triangle law firm of is a Senior Lecturer of Law. During Harlow, Reilly, Derr & Stark. Reilly the last twelve years, Becton has was previously a partner in the taught lawyers how to try cases at New York City firm of Shearman & trial advocacy institutes all across Sterling. He and his wife, Patricia, the country. reside in Durham, North Carolina. Robert M. Hart joined the firm Ernest C. Torres was confirmed of Donovan Leisure Newton & Irvine by the US. Senate as a judge on in New York City in February, 1988. the US. District Court in Providence, jeffrey E. Lewis, associate dean Lanty L. Smith '67 Rhode Island. of the University of Florida College VOL. 6, NO.2 / 53

of Law, succeeds Frank T. Read '63 with autonomously-run Bacardi General in the Antitrust Division of as dean effective July 1, 1988. After organizations. Naclerio joined the the U.S. Department of Justice. He a national search, Lewis was selected company in 1977 as assistant gen­ was formerly the Chief Counsel for for his strong internal and external eral counsel, became general coun­ Antitrust at the Senate Judiciary leadership abilities. Lewis has been sel in 1983, and vice president in Committee. He is married to Susan in the field of education for nearly 1984. Parker Starling '72. The Starlings two decades, and he is highly re­ Michael L. Richmond was pro­ have two children and reside in garded as an effective administrator. moted to Professor of Law at the Mclean, Virginia. (See article on pg. 39). Nova University Center for the Study of Law in Fort Lauderdale, Florida. Class of 1974 Class of 1971 Ronald H. Ruis recently moved Norman A. Smith formerly a Christopher N. Knight joined from California to a fishing village partner in the firm of Boyle, Alex­ the firm of Hopkins & Sutter in on the northeast coast of Spain. ander, Hard and Smith in Charlotte, Chicago, Illinois. Knight has rep­ Ruis is writing science fiction novels North Carolina, has formed the firm resented numerous governmental as well as engaging in some inter­ of Smith and Feerick. The new firm bodies and underwriters as bond national law practice. will carry on a general business counsel and underwriters counsel, Bryan E. Sharratt was appointed practice with particular emphasis and specializes in creative public to the University of Wyoming Board on civil litigation, including mal­ fmancings, as well as ·bank fmanc­ of Trustees. Sharratt is a partner in practice and products liability de­ ings and credit enhancements. Sharratt & Sharratt in Wheatland, fense and other complex litigation Douglas B. Morton was named Wyoming. involving computer litigation sup­ chairman of the Civil Benchbook port. Smith remains active in the Committee for the Indiana Judicial Class of 1972 Naval Reserve Intelligence Program Center. The committee should pub­ Robert T. Brousseau is a litiga­ and was recently promoted to the lish in September 1988. tion and bankruptcy partner in the rank of Captain, USNR. Dallas law firm of Stutzman & Brom­ berg. He recently addressed analysts and examiners of the Federal Home Class of 1975 Loan Bank Board on the legal im­ David B. Franklin returned to plicatiOns of distressed real estate San Francisco recently after a four workouts. year stay in Hawaii. Franklin is a Cym H. Lowell joined the firm partner in the firm of Berg, Ziegler, of Johnson & Swanson in Dallas, Lichtman & Anderson. Texas. Lowell was formerly in law Hugh Ranald McDonald has practice in Indianapolis, Indiana. joined the firm of Jones, Day, Reavis & Pogue in Irvine, California. Class of 1973 Clinton Richardson authored a Mark S. Foster was elected to book entitled The Venture Magazine the Managing Committee and has Complete Guide to Venture Capital. assumed the role of managing part­ According to Richardson, the book ner with the law firm of Stinson, is a "practical guide to investments Mag & Fizzell. The firm is the largest in private companies and is written law firm in Kansas City, Missouri, for the entrepreneur and investor." and also has offices in Overland Richardson is with the Atlanta law Park, Kansas, and Dallas. firm of Arnall Golden & Gregory Pamela B. Gann succeeds Paul The book was published in 1987 D. Carrington as dean of the Duke by New American Library. Steven Naclerio '71 University School of Law effective Steven Naclerio was named senior July 1, 1988. She's the first North Class of 1976 vice president of Bacardi Imports, Carolina native and first Duke Law Eric H. Halvorson has rejoined Inc. , of Miami, Florida, in January graduate to serve as dean. (See article Godfrey & Kahn, S.c., as a share­ 1988. Naclerio was formerly vice on pg. 19.) holder in the fum's Green Bay, president of the corporation. In Robert W Hillman, Professor of Wisconsin, office. Halvorson was addition to his continuing respon­ Law at the UniverSity of California in the Milwaukee office from 1976- sibilities as general counsel and as­ at Davis, received that school's Dis­ 1985. From 1985-1987, he was vice sistant secretary, Naclerio will also tinguished Teaching Award at an president/general counsel of Salem be increasingly involved in the in­ awards dinner this spring. Communications Corporation in ternational aspects of the company Kenneth G. Starling has been Camarillo, California. He will remain as well as other business relationships appointed Deputy Assistant Attorney a member of the Board of Direc- DUKE LAW MAGAZINE / 54 tors of Salem Communications pany in Wallingford, Connecticut. in the law firm of Sidley & Austin Corporation. Steven R. Gilford joined the in New York. Sheri S. Labovitz was named a firm of Mayer, Brown & Platt in Dara DeHaven is a partner in partner at the law firm of Alston & Chicago, Illinois. the law firm of Powell, Goldstein, Bird in Atlanta, Georgia. Labovitz Bruce jacques became a partner Frazer & Murphy in Atlanta, Georgia. specializes in commercial real estate. in the firm of Higgs, Fletcher & Mack Linda B. Griffey is a partner She joined the firm in 1978. in Escondido, California. Jacques ih the Los Angeles law firm of Branch L. Winegeart, III re­ published an article entitled "Im­ 0'Melveny & Myers. cently joined the firm of Mahoney plied Indemnity in Breach of Con­ john H. Hickey has been made Adams Milam Surface & Grimsley, tract" in the March 1988 issue of a partner in the 23-attorney firm of P.A., in Jacksonville, Florida. California Lawyer. Hornsby & Whisenand, P.A., in Gregory A. Robertson became a Miami, Florida. Class of 1977 partner at the firm of Alston & Bird Richard C. Van Nostrand is a Harold I. Freilich, joined the in Atlanta, Georgia. Robertson joined partner in the law firm of Mirick, firm of Davis, Graham & Stubbs the law firm in 1985 and specializes O'Connell, DeMallie & Lougee in in Washington, nc. His practice is in securities regulation, real estate Worcester, Massachusetts. primarily in the area of corporate, syndication and corporate financial securities and commercial real estate. transactions, including mergers and Class of 1981 Robert G. Moskowitz was named acquisitions. john J Coleman, III published senior vice president and general jerome C. Scowcroft with "Muddy Waters: Allis Chalmers and counsel for Shamrock Holdings, Schwabe, Williamson, Wyatt & the Federal Policy Favoring Labor Inc., in Burbank, California. Mosko­ Leniham of Seattle, Washington, Arbitration" in the Washington & witz joined the company in 1986 served as a panelist during the In­ Lee Law Review Volume 44, Num­ as vice preSident, legal affairs. ternational Conference on Maritime ber 2. Coleman has also published Ember D Reichgott was recently Arbitration in Vancouver, B.C., in the Saint Louis University Law honored by the Minnesota Chapter Canada, in May 1988. journal, the Cumberland Law Re~ of the National Association of Women view, Barrister, Personnel, the Per­ Business Owners as "Public Policy Class of 1979 sonnel journal, and the Birmingham Advocate of the Year" for 1988. Richard D Blau of San Antonio, Bar Bulletin. Reichgott serves in the Minnesota Texas, co-authored articles for the State Senate and was honored for March and April 1988 editions of her work in promoting legislation the journal of Taxation regarding affecting Minnesota small businesses the federal income taxation of S and women business owners in par­ Corporations. He currently chairs ticular. Reichgott is also an attorney a subcommittee of the Committee part-time with The General Coun­ of S Corporations of the ABA Tax sel, Ltd., a law firm that provides Section and serves as a member of business clients with legal services the editorial board of S Corpora­ similar to those of in-house counsel. tions: The journal of Tax, Legal Geoffrey H. Simmons has been and Business Strategies, a quarterly appointed by the American Bar As­ publication. He co-authored a book sociation's Standing Committee on on the federal income taxation of Lawyers Public Service Responsibil­ S Corporations which is scheduled ities to oversee pro bono programs for release by Callaghan & Company and projects. Simmons was appointed later this year. to a three-year term. He is also a Claudia A. Carver became ~ board member of Legal Services a partner with the firm of Paul, ] of North Carolina. Hastings, Janofsky & Walker in Los ~ Kim west is a partner in the law Angeles, California. .~ ~ firm of Lewis, Dl\mato, Brisbuis & Thomas A. Croft became a Bisgaard of Los Angeles, California. partner with the firm of Porter & Jeffrey Donaldson '81 Clements in Houston, Texas. Class of 1978 Solveig Overby is teaching a jeffrey L. Donaldson is a part­ William B. Bunn accepted the course in Law and Information Tech­ ner with the law firm of Mirick, position of corporate medical di­ nology at Hampshire College, Am­ O'Connell, DeMallie & Lougee in rector for the Manville Corporation herst, Massachusetts. Worcester, Massachusetts. Donald­ in Denver, Colorado. He and his son has been associated with the family are now residing in Denver. Class of 1980 firm since 1981 and is engaged in Bunn was with Bristol-Myers Com- G. William Brown, jr. is a partner the practice of corporate and securi- VOL. 6, NO.2 / 55 ties law. Donaldson is a member of Harlow, Reilly, Derr & Stark in Re­ Class of 1984 the Central Massachusetts Region search Triangle Park, North Carolina. Sol W Bernstein is now an asso­ Board of Directors of the Society Douglas L. McCoy became a ciate with the New York City law for the Prevention of Cruelty to member of the law firm of Hand, firm of Win deIs, Marx, Davies & Ives. Children and serves on the Execu­ Arendall, Bedsole, Greaves & John­ Helen Nelson Grant is now a tive Committee and as Secretary of ston in Mobile, Alabama. partner with the law firm of Gergel, the MSPCC He is also a member Peter A. Sachs, an associate with Burnette & Nickles in Columbia, of the Clark University Small Busi­ Jones & Foster, PA. , West Palm Beach, South Carolina. A Columbia news­ ness Development Center Advisory chaired a workshop for the Palm paper, The State, recently published Council. Beach County Bar Association en­ a proftie of Ms. Grant. She acknowl­ Patrick B. Fazzone recently titled "The Constitution: Teaching edges that, as a black woman in a received a Fulbright Award to do Strategies for the Bicentennial Cele­ predominately white male profes­ research in Australia during the bration." The day-long workshop sion, she faces obstacles and even 1989 academic year. Fazzone is an for secondary social studies teachers prejudice at times. Her remedy to associate with the law firm of Collier, was presented by the PBCBA and these challenges is to rely on her Shannon, Rill & Scott in Washington, the Palm Beach Post. The project father's counsel: "If you're the best o.C evolved during a search for an ap­ prepared and best qualified, nothing Donald]. Rendall, jr. is a mem­ propriate and creative way to cele­ is impossible." ber of the firm of Sheehey Brue brate the 200th armiversary of the jonathan A. Gruver joined the Gray & Furlong in Burlington, Constitution. The teacher workshop firm of Akin, Gump, Strauss, Hauer Vermont. was organized with the assistance & Feld as a laborllitigation associate. Dennis G. Friedman is now a of the Palm Beach Post whose Gruver is in the Washington, o.C member of the Chicago, Illinois, educational staff presents workshops office. law firm of Mayer, Brown & Platt. for teachers to introduce them to Robert P Monyak has become Elizabeth Page Potter is now various ways newspapers can be an associate with the law firm of Director of the Legal Assistants Pro­ used in curriculum. Sachs told The Love and Willingham in Atlanta, gram at Meredith College in Raleigh, Florida Bar journal, "The bar as­ Georgia. North Carolina. sociation was proud to be involved Patrick Michael Rosenow is an Mark W Ryan is now a mem­ in such a professionally run and instructor in civil law, director of ber at the law firm of Mayer, Brown successful program, and by reach­ continuing legal education, and di­ & Platt in Chicago, Illinois. ing so many teachers, the project rector of environmental law instruc­ William Stoner has become a has reached literally hundreds of tion, AF Judge Advocate School. partner with the law firm of Lillick school children with its message Rosenow is a Captain and is sta­ McHose & Charles in Los Angeles, about the Constitution." tioned at Maxwell AFB, Montgomery, California. Stoner specializes in Hezekiah Sistrunk, jr. is a part­ Alabama. commercial and business litigation ner with the newly-formed firm of Shiji Tawra moved to Tokyo and is a registered CPA. He joined Love and Willingham in Atlanta, recently and plans to stay for a year. the firm in 1981. Georgia. David E. Sturgess became a Ellen Stebbins became a partner Class of 1985 principal in the forty-attorney law in the Houston, Texas, law firm of Lynne E. Barber is now associ­ firm of Updike, Kelly & Spellacy, Dotson, Babcock & Scofield. Stebbins ated with the firm of Olive & Olive, PC, in Hartford, Connecticut. concentrates primarily in the areas PA., in Durham, North Carolina. Neil Tucker is now a partner of real estate and commercial finance. Chama L. Gerstenhaber is an with the law firm of Lillick McHose Diane A. Wallis is now a partner associate with the law offices of & Charles in Los Angeles, California. in the firm of CriSp, Davis, Schwent­ Russel H. Beatie, Jr., in New York Tucker specializes in real estate law ker, Page & Currin in Raleigh, North City. with particular emphasis in con­ Carolina. Arthur]. Howe is now asso­ struction and permanent fmancing, ciated with the firm of Schopf & leasing, purchase and sale, and de­ Class of 1983 Weiss in Chicago, Illinois. velopment work. Tucker joined the Ronald L. Clever announces the Torsen lilnge is the author of firm in 1981. opening of his office for the gen­ The Role of Lockouts In Labor Con­ eral practice of law in Allentown, flicts: A Legal Study of American Class of 1982 Pennsylvania. and German Approaches, published Richard W Evans has become David A. Zalph recently joined by Peter Lang Publishing, Inc. Lange, associated with the law firm of the law firm of Shutts & Bowen in his wife, Norma, and daughter, Anja Harlow, Reilly, Derr & Stark in Re­ West Palm Beach, Florida. Zalph Martina, left Hong King recently. search Triangle Park, North Carolina. concentrates primarily in the areas He is now on an executive assign­ Donald S. Ingram has become of commercial real estate, business, ment with BASF Philippines, Inc. in associated with the law firm of and municipal finance law. Manila, Republic of the Philippines. DUKE LAW MAGAZINE / 56

Elizabeth H. Liebschutz is now tional and criminal law. He is cur­ of international agreements and associated with the flrm of Richard­ rently stationed at Camp Lejeune, related legal matters. son, Berlin & Morvillo in Washington, North Carolina. Huei-huang Lin has been pro­ D.c. Stephen A. Labaton has been moted to director of the offIce of Andrew L. Shapiro is now asso­ named legal affairs reporter for The student affairs with the Judiciary ciated with the flrm of Ross, Dixon New York Times. Labaton is gaining Training Institute of the Ministry and Masback in Washington, D.c. recognition as one of the top flnan­ of Justice in Taipei, Taiwan. Ronald E. Sharpe is now as­ cial section writers for the Times. Tish Walker Szurek is an asso­ sociated with the flrm of Sacks, Margaret J Neilsen joined the ciate with the law flrm of Kemp, Montgomery, Pastore & Levine in San Francisco law flrm of Broad, Smith, Duncan & Hammond. Szurek New York City. Schultz, Larson & Wineberg. is in the flrm's EI Paso, Texas, offIce. Loren A. weil is now an asso­ Anne Wilkinson is the assistant james A. Thomas is now associ­ ciate with the Chicago law flrm of legal counsel for the Honorable James ated with the flrm of Harlow, Reilly, Winston & Strawn. G. Martin, Governor of the State of Derr & Stark in Research Triangle North Carolina. Park, North Carolina. Class of 1986 TR. Kane published "Prosecuting Class of 1987 Class of 1988 International Terrorists in United james Chin-hsien Chen has been Taylor D. Ward received a Ful­ States Courts" in the Yale journal promoted to section chief of the bright fellowship for 1988-89. He of International Law, Summer 1987. Department of Treaty & Legal Affairs will be conducting research in north­ Kane, a Lieutenant Colonel in the with the Ministry of Foreign Affairs eastern Japan at Tohokee University U.S. Marine Corps practices interna- in Taipei, Taiwan. He is in charge in Sendai. Personal Notes

'65-Richard Moore Morgan second son, Michael Lawrence, -Lawrence G. McMichael and married Rebecca Lynne Owens on on December 29, 1987. his wife, Carol Stern, announce the September 12, 1987 in Wilmington, -Gary Lynch and his wife, birth of their second child, David North Carolina. Morgan is a partner Donna Parratt, are the proud pa­ Stern McMichael on March 11, 1988. in the flrm of Stevens, McGee, rents of a baby boy, Trevor Clark, McMichael is a partner in the law Morgan, Lennon and O'Quinn born January 4, 1988. flrm of Dilworth, Paxson, Kalish & in Wilmington. Kaufmann in Philadelphia. , 76-Peter J Kahn and his wife, '71-john R. Ball married P. Pamela, proudly announce the birth '80-Lori E. Terens and her hus­ Preston Reynolds on January 9, of their flrst child, a daughter named band, Eric Holshouser, both class 1988 in Duke Chapel. Both gradu­ Alyssa Jonas, on April 17, 1987. of 1980, announce the birth of a ated from Duke University Medical 9 lb. 5 oz. son on March 16, 1988. School. Ball also graduated from '77 -David S. Feinman and his They named their flrst child Eric Duke Law School and is executive wife, Elizabeth M. weaver '80, an­ James Holshouser, Jr. nounce the birth of their flrst child, vice president for the American -Elizabeth M. weaver and her a boy named Matthew Alexander, College of Physicians. husband, David S. Feinman '77 born on December 12, 1987. announce the birth of their flrst child, a boy named Matthew Alex­ '73-john S. Black and his wife, '78-Marilyn Hoey Howard and ander, born on December 12, 1987. Darcy; announce the birth of their her husband, Charlie, are the proud daughter, Katheryn Anne Black, on parents of a second son, John January 12, 1988. Thomas Howard, born January 19, '81-john J Coleman III and his -Donald 0 'Brien Mayer married 1988. wife, Liz, announce the birth of a Mary Ann Garth on November 28, -james TR. jones married Jane son, John]. Coleman IV Gack), 1987. Mayer teaches business law at Craig of Gatlinburg, Tennessee, on born December 31, 1987. Western Carolina University. The January 2, 1988. They are making Mayers make their home in Sylva, their home in New Albany, Indiana. '82-Barbara Ann Zippel and North Carolina. -Gregory Scott Lewis and his her husband, Thomas Pickrell, both wife, Susan, are the proud parents class of 1982, announce the birth '75-john Howell and his wife, of a third child, a son, Trevor Alton of their second child, a son, John Jina, announce the birth of their Lewis, born April 8, 1988. Wesley Pickrell, on January 1, 1988. VOL. 6, NO.2 /57

'83 -Coralyn and Gary Benhart, -Karen Brumbaugh Mozenter -Darrell R. Van Deusen and both class of 1983, are the proud and her husband, Michael, both Caroline E. Emerson, both class parents of a son, Robert Kenneth, class of 1984, announce the birth of 1985, married May 9, 1987. They born December 12, 1987. of a daughter, Rachel Ann, on April 2, make their home in Baltimore, -Susan]. Cole married Dr. 1988. Maryland. Glenn Dranoff on August 30, 1987. Margaret (Peggy) jean Reinsch -Mary Woodbridge and Marc The Dranoffs live in Cambridge, and her husband, Bruce A. Jones, Leaf '84 announce the birth of their Massachusetts. are the proud parents of their first third child, a daughter, Constance -Robba Addison Moran and child, a son named Edwin Tucker Davis Leaf, on February 22, 1988. her husband, Jerry Moran, announce Reinsch Jones, born April 16, 1988. the birth of a daughter, Kelsey Paige, , 86-Alvaro Aleman announced on February 14, 1988. '85-Suk-Ho Bank recently the birth of a daughter recently. married. -Thomas F Blackwell and his '84-Hiro Goto recently married. -Hidefumi Kobayashi an­ wife, Lisa, are the proud parents of -Marc Leaf and his wife, Mary nounced the birth of a daughter a son, Zebadiah Benjamin Blackwell, Woodbridge, '85 announce the birth recently born December 28, 1987. Blackwell of their third child, a daughter, -Domingo Diaz announced is an associate with Jenkens & Constance Davis Leaf, on February the birth of a daughter recently. Gilchrist in Dallas, Texas. 22, 1988. -Marshall David Orson married Christopher W Loeb, married Jennifer Deskins Cole on October '87 -Luisa Fernandez married Terry Armstrong on May 14, 1988. 17, 1987 in Abingdon, Virginia. Orson recently Loeb is an associate with Robinson is an attorney with the Paul, Hast­ Bradshaw & Hinson, PA., in Char­ ings, Janofsky and Walker law Hrm lotte, North Carolina. in Atlanta. Obituaries Class of 1936 Medical Center in Ashland, Kentucky Class of 1969 WD "Pete" Murphy a promi­ Gearhart overcame polio as a youth, William E. Pursley, jr. died at nent attorney and civic leader in earned his law degree, and became his home in Arlington, Virginia, on Batesville, Arkansas, died on De­ one of the longest serving county November 25, 1987. A former Capi­ cember 24, 1987, in a Little Rock attorneys in Kentucky history At tol Hill staff member, he had been hospital. He was a senior partner the time of his death, Gearhart was a Senate lobbyist with Shell Oil in the Murphy, Post, Thompson, associated with the Hrm of Gearhart, Company for the past five years. Arnold and Skinner law firm. Dur­ Vigor and Pitt. Before coming to law school, he ing his 48 years of law practice, he was an Angier B. Duke Scholar at served as president of the Indepen­ Duke University where he made dence County Bar Association and Class of 1954 Phi Beta Kappa. As an undergrad­ as examiner for the Arkansas Bar john Eric Swanstrom, of Shrews­ uate, he also won a Rotary Interna­ Association. He received the Kiwanis bury, Massachusetts, died of a heart tional Scholarship and attended the Citizenship Award in 1986. attack on August 14, 1987. Before London School of Economics. attending Duke Law School, Swan­ Paul D Robeson of Robesonville, strom had graduated from Worcester Class of 1978 North Carolina, died on February Academy and earned a bachelor's Dr. john Hunt Rutledge died 8, 1988 while vacationing in Torre­ degree at Clark University. While on December 5, 1987 at Columbia molinos, Spain. at Duke, he was head of the pro­ Presbyterian Hospital in New York fessional ethics committee of the City Rutledge received his M.D.-].D. American Law Student Institute. degree from Duke University and Class of 1940 Mr. Swanstrom was a trial lawyer a master's degree in public health F john Beattie of Parma Heights, in Worcester, Massachusetts. from Harvard. Since September Cleveland, Ohio, died on March 16, 1985, he served as Deputy Com­ 1988. missioner for the New Jersey State Class of 1958 Department of Health in Trenton, C. Eugene McCartha died in New Jersey. Rutledge resigned in Class of 1947 late 1987. November 1987 due to declining Calvin Gearhart died on No­ jesse D Henry of Miami, Florida, health. Graveside services were vember 25, 1987 at King's Daughters died of a stroke on July 11, 1987. held in Richmond, Kentucky. DUKE LAW MAGAZINE I 58 UPCOMING EVENTS

LAW ALUMNI WEEKEND OCTOBER 21-23, 1988

FRIDAY, OCTOBER 21, 1988 2 :00 p.m. Registration Desk Opens, law School Lobby 2:00 p.m. law Alumni Council and Board of Visitors Meeting, law School 6:00 p.m. Reception, Gross Chemistry Lobby 7:30 p.m. Dinner on your own 9:00 p.m. Hospitality Rooms at Sheraton University Center

SATURDAY, OC1DBER 22, 1988 9:00 a.m. Registration Desk Opens, law School Lobby 9:00 a.m. Coffee and Danish, law School 10:00 a.m. Professional Program and law Alumni Association Meeting 12 :00 Noon Pig Pickin' catered by Bullock's Bar-B-Que, law School lawn 1 :30 p.m. Duke vs. Maryland Football Game 6:00 p.m. Reception and Reunion Dinner at Sheraton (by class) 9:00 p.m . Hospitality Rooms at Sheraton University Center

SUNDAY, OC1DBER 23, 1988 9:00 a.m. Barristers Breakfast* 10:00 a.m. Council for the Annual Fund Meeting, Sheraton University Center

The class of '62 enjoyed getting together for their 25th reunion in 19B7.

*Barristers of the law School are alumni and friends who contribute $1,000 or more annually to Duke law School. Contributors of $500 or more annually are Barristers if they are seventy years of age or older; judges, teachers, government officials or graduates of less than seven years. VOL. 6, NO.2 / 59

Reunion Coordinators: 1948 Frank Snepp 1968 Carl F. Lyon, J r. Superior Court Judge Mudge Rose Guthrie Alexander Charlotte, North Carolina & Ferdon (704) 342-6738 New York, New York (212) 510-7318 1953 Harry R. Chadwick Chadwick & Chadwick Edward A. Reilly St. Petersburg, Florida Harlow, Reilly, Derr & Stark (813) 327-5444 1000 Park Forty Plaza P.O. Drawer 13448 1958 Robert L. Burrus, Jr. Research Triangle Park McGuire Woods Battle North Carolina 27709 & Boothe (919) 544-5555 Richmond, Virginia (804) 644-4131 1973 Sarah Adams 56 Westminister Drive, N.E. John F. Lowndes Atlanta, Georgia Lowndes, Drosdick, Doster, Kantor (404) 876-8363 & Reed Orlando, Florida 1978 Christopher G. Sawyer (305) 843-4600 Alton & Bird Atlanta, Georgia 1963 Charles W. Petty (404) 955-2420 Hamel & Park Washington, D.c. 1983 Richard Garbus (202) 835-8032 Marks Marase & White New York, New York Brian Stone (212) 832-3333 Atlanta Volunteer Lawyers Foundation Atlanta, Georgia (404) 521-0790

The law classes of 1938-40 will have a joint 50th year reunion in 1989. The law class of 1943 had a joint reunion with the classes of 1941 and 1942 in September 1987.

aTHER UPCOMING EVENTS

American Bar Association, 1988 Annual Meeting, Toronto, Canada Monday, August 8, 1988, Duke Law School Alumni Reception, 6 :00 to 7:30 p.m ., L'Hotel, Ontario Room. Please join us and get acquainted with our new dean, Pamela Gann.

Conference on Career Choices The third annual Conference on Career Choices will be held in February 1989. Panels will feature Duke Law alumni who will discuss their professional careers as well as respond to topics of particular interest and concern to students.

Barristers Weekend Barristers Weekend will be March 31-April 1, 1989. This special weekend is held annually for members of the Barristers Club. Barristers are alumni, faculty, parents and other friends who contribute $1,000 or more annually to Duke Law School. Contributors of $500 or more annually are Barristers if they are also graduates of less than seven years, seventy years of age or older; judges; teachers; or government officials. Donors of $2 ,500 or more are Sustaining Barristers.

For more information on Upcoming Events, call the Law Alumni Office at (919) 489-5089. DUKE LAW MAGAZINE / 60

Annual Fund Catnpaign Begins

BE TRUE TO YOUR SCHOOL

As our new dean reminds us in these pages, we can all take pride in the fact that, for some time, Duke Law School has been considered one of the best law schools in the country. As she observed, the Law School and its constituents-alumni, faculty, students and other friends-are also quite fortunate in sharing a tremen­ dous sense of goodwill toward each other and the institution. That sense of goodwill is reflected in the fact that, for the last five years, over forty percent of Duke Law alumni have participated in the Law School's Annual Fund Campaign providing unrestricted support to the operating budget of the Law School-and thus to current educational programs. That participation rate is competitive with other law schools of our stature. In fact, few law schools boast a higher participation rate. (Though it would be fun to join the com­ petition between Penn and Yale who are pushing for 56% and 57% respectively while also competing for the top partiCipation rate in the country.)

Though the size of the average gift contributed by alumni has also increased over time, we lag behind other law schools of our stature in this measure. It is time to change that fact. We need the assistance of each of you to' help increase the annual contribution to the Law School through the Annual Fund Campaign.

STAND UP AND BE COUNTED

The 1988-89 Annual Fund Campaign runs from July 1, 1988 through June 30, 1989. Dean Gann has accepted the challenge of fmding increased funds for the Law School so that the School can continue to provide an exceptional educational program, attract excellent faculty, grant fmancial aid to deserving students and enlarge and improve the Law School building. Please join me in sending the message to the faculty and administration that we appreciate their keeping Duke Law School at the forefront nationally and that we want to do our part to contribute to one of the finest legal education programs in the country. Your gift does make a difference, especially at this crucial point in the Law School's history.

Donald B. Craven Chairman Duke Law School Annual Fund

Make the stretch to a Leadership Gift

University wide $10,000 or more ...... Few Association President's Council $ 5,000 or more ...... William Preston Few Association $ 2,500 or more ...... Sustaining Barrister $ 1,000 or more* ...... Barrister $ 500-$999 ...... Patron $ 250-$499 ...... Supporter *or $500 or more for donors who are graduates of less than seven years, seventy years of age or older; judges, teachers or government officials. CHANGE OF ADDRESS

NMne ______Cl~sof ______Firm /Position ______Businessaddress ______Busmessphone ______Homeaddress ______

, ~ Homephone ______

Return to Law School Alumni Office.

PLACEMENT OFFICE Anticipated opening for third 0, second 0, and/or fust 0 year law students, or experienced attorney 0 Date position(s) available ______Employer's nMne and address ______

Pe~on to con~ct ______Requirements/comments ______o I would be willing to serve ~ a resource or con~ct person in my area for law school students.

Submitted by: ______Cl~s of _____

Return to the Law School Placement Office.

ALUMNI NEWS The Duke Law Magazine invites alumni to write to the Alumni Office with news of interest such as a change of status within a firm, a change of association, or selection to a position of leadership in the community or in a professional organization. Please also use this form for news for the Personal Notes section.

Name ______Cl~sof ______Address ______Phone ______News or comments ______

Return to Law School Alumni Office. Duke Law Magazine NON-PROFIT ORG . Duke University School of Law u.s. POSTAGE Durham, NC 27706 PAID DURHAM,NC Address Correction Requested PERMIT No. 60