VOLUME 8

Contents From the Dean

5 Forum 6 Constitutional and Statutory Responses to Texas v. Johnson / Walter E. Dellinger; III 12 The Biggest Deal Ever / Deborah A. DeMott

24 About the School 25 Financial Aid: An Investment in the Future 30 The B. S. Womble Scholarship

33 The Docket

34 Faculty Profile: Robert P Mosteller; A Commitment to the l£lw

DEAN EDITOR ASSOCIATE EDITOR Pamela B. Gann Evelyn M. Pursley Janse Conover Haywood NUMBER 1

38 Alumnus Profile: Arnold B. McKinnon '51, Running the Nation's Most Profitable Railroad

41 Alumnus Profile: Breckinridge L. Willcox '69, US. Attorney: The Best Job Government Can Give a Lawyer 44 Book Review: Robert Dole: American Political Phoenix by Stanley Goumas Hilton '75 46 Specially Noted 58 Alumni Activities 72 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 1990

PHOTOGRAPHERS PRODUCTION Dan Crawford Graphic Arts Services Ron Ferrell Les Todd Jim Wallace DUKE LAW MAGAZINE / 2

From the Dean

These pages give me an oppor­ tunity to share with alumni and friends information and issues about various facets of the Law School. In this issue, I want to discuss with you matters relating to our building renovations, admissions, placement, and the public service responsibility of lawyers. Law School Library Reno­ vations. Included on these pages are pictures of the recently com­ pleted renovations of the bottom floor of the library. The reaction of faculty, librarians, and students to the architect's design has been very positive. The combination of lighting, millwork, and specially­ designed individual computer car­ rels creates an inviting environment for students to conduct legal research and to write. The computer carrels house a $100,000 local area computer for Duke University, the University to utilize this network of comput­ network for student use. This net­ of North Carolina, and North Caro­ ers. ~en you next visit the Law work contains word processing, lina State University, which combines School, please take the time to walk LE]JS, ~STLA~, grammerand the total library resources of these around the library, including the citation checks, and computer in­ three universities into the third largest newly-renovated areas, and to ob­ structional exercises assigned by the university library collection in the serve the balance among hard-copy faculty for particular courses. It also United States. Our librarians are ac­ materials and new forms of infor­ contains the on-line library catalogue tively involved in training students mation technology: Admissions. The number of persons applying to the Law School has increased by eighty-six percent since 1985, with significant increases occurring in 1987-88 and 1988-89. For the fall 1989 entering class, the Law School received a record num­ ber of 3,501 applications. Applica­ tions received to date for the fall 1990 entering class are over twenty percent ahead of January 1989. The dramatic increase in applicant vol­ ume has been accompanied by an increase in the qUality of the appli­ cants. Nationwide the number of persons achieving high LSAT scores has increased, and our applicant pool shows that increase as well. The fall 1989 entering class median LSAT is 43, the highest in the School's history, and its median GPA is 3.60. VOL. 8, NO. 1 / 3

Forty-three percent of the fall 1989 the law schools due to the growing recruit only first-years. Also, we use entering class are women, which is number of multiple applications. valuable office space for the inter­ also the highest percent in the Law Placement. Law students have views, often asking adjunct and joint­ School's history. The majority of never had a better choice of jobs appointment faculty to relinquish persons enrolled in undergraduate as the demand for lawyers from top their offices during the fall semester. college presently are women, and law schools increases more rapidly We have previously addressed law schools can expect their enroll­ than the number of students gradu­ in a small way the problem of stu­ ment of women to proceed gradually ating each year. Nevertheless, the dents missing classes to interview to fifty percent over the next sev­ law schools themselves have experi­ off-campus by creating a week-long eral years. The entering class origi­ enced increasing disruption to their October break and encouraging nates from thirty-eight states and educational program caused by the students to interview during that seven foreign countries, illustrating enlarged placement activity. Students week. Beginning in the fall semes­ the "national" nature of the Law spend many hours interviewing firms ter 1990, we will attempt to control School's student body. The enroll­ on campus and then leave school the number of missed classes for on­ ment of fourteen black minority stu­ for entire days to interview firms campus interviews by scheduling dents is the highest absolute number away from campus. Moreover, even 150 of the more than 500 firms that enrolled, and the twelve percent first-year students are engaged in interview during the fall semester enrollment of North Carolina resi­ a spring semester, on-campus place­ over three weekends. This weekend dents is also the highest achieved ment season during which firms concentration of firms will enable in ~he last several years. Our enrollment recruitment efforts are greatly enhanced by the Alumni Admissions Program, which presently involves more than 180 alumni throughout the country. Approximately eighty percent of the admitted candidates were matched with alumni, who personally con­ tacted the candidates. These contacts were made not only to recruit the candidate to Duke, but also to dis­ cuss legal education and the profes­ sion more generally. This network of alumni greatly enhances our recruit­ ment efforts for excellent candidates. This rapidly increasing applicant volume is a mixed blessing. We cer­ tainly appreciate the perception that the Duke Law School is a location in which many strong candidates want to study law. On the other hand, the cost of operating an ad­ missions office both to recruit stu­ dents on a nationwide basis and to review this volume of applications has increased Significantly over the last several years. Private undergrad­ uate colleges, like Duke, estimate that their admissions operations cost about $1,000 per matriculated student. Comparable data is not available for private law schools; nevertheless, the cost is significant. One cannot help but imagine that as private schools need to contain costs, a national application system may be developed to eliminate the current duplication of effort among DUKE LAW MAGAZINE / 4

discussed how large law flrms orga­ nize themselves to deliver pro bono services. They also discussed if prom­ inent, large law firms fail, or if law­ yers individually fail, to volunteer their services in accordance with their public service responsibility, and whether all lawyers should be required to provide pro bono ser­ vices. At least six states now have under consideration a mandatory pro bono requirement for lawyers. Many lawyers believe that if horta­ tory efforts fail to convince lawyers to meet their public service respon­ sibility, the mandatory requirement may be adopted in some states. This panel is part of a larger effort by the Law Alumni Council to present to students alumni panels on various topics about the legal profession. Law school faculty per­ form the traditional functions of legal us to shorten the total number of In response to the need to bring education quite well. The faculty weeks devoted to flrm interviews these issues to the attention of our may not, however, be as helpful on-campus, which should beneflt students, I requested the Law Alum­ as our alumni in thoughtfully dis­ the students and the flrms. ni Council to present a program at cussing such topiCS as the evolving A significant number of the on­ the Law School about the public nature of law firrns, the economics campus interviews are conducted service responsibility of lawyers. of the profession, or the public ser­ by our alumni. I hope that you and Each year panels appear in the Law vice responsibility of lawyers. I your flrms will appreciate the need School to discuss careers in public warmly thank the Law Alumni Coun­ to conduct interviews during the interest law and government. In re­ cil for organizing these alumni panels weekend to lessen the disruption ality, however, most of our students to enrich the professional education of class attendance and preparation will begin their careers in large law of our students. caused by the current placement flrms in large cities; accordingly, I schedule. requested the Council to focus in Pamela B. Gann Law Alumni Council and the particular on how large law flrms Public Service Responsibility encourage and assist their lawyers of Lawyers. The degree to which in delivering pro bono services. lawyers are fulfllling their public A panel discussed this topic service responsibility is one of to­ among themselves and with our stu­ day's most widely discussed profes­ dents in January: Panelists included sional topics. The degree to which Richard Allen '66, a partner at law schools can educate students Cravath, Swaine & Moore; Barbara to understand their future public Arnwine '76, the Executive Direc­ service responsibility is an equally tor of the Lawyers Committee for discussed topic. Civil Rights under the Law; James Pro bono legal services fall within E. Coleman, Jr., of Wilmer, Cutler the broader topic of public service & Pickering; John J. Coleman, Jr. responsibility. Most law schools and '50, the managing partner of Brad­ lawyers are unwilling to confront ley, Arent, Rose & White; Thomas the fact that many lawyers are simply A. Hale '82, a senior associate at not committed to pro bono activi­ Skadden Arps Slate Meagher and ties. Law students are sometimes Flom; Craig A. Hoover '83, a even reticent to bring up the topic senior associate at Hogan & Hart­ in placement interviews. I believe son; and Chip Palmer '66, Vice­ that law schools and their alumni President of the Law Alumni Council have a role to play in educating stu­ and a partner in Fulbright Jaworski dents about these issues. & Reavis McGrath. The panelists

DUKE LAW MAGAZINE I 6

Constitutional and Statutory Responses to Texas v. Johnson Walter E. Dellinger, IIi*

wo hundred years ago today, members ever held by Congress-was presented to the House. of the first United States Senate and House Final agreement had been reached to propose an of Representatives were meeting to agree amendment adding the following words to the Con­ T upon the fmal wording of the proposed Bill stitution of the United States: of Rights. On September 24, 1789 the work of that Congress shall make no law respecting an conference committee-perhaps the most important establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. No amendment has ever been proposed by Con­ gress that would alter in any way this most fundamental part of the Constitution. Today this committee meets to consider for the first time in 200 years an amend­ ment that would revise the Bill of Rights we adopted two centuries ago. Because I believe that the proposal to amend the Constitution for this purpose is utterly misguided and fraught with peril, I have accepted the committee's invitation to appear. I will suggest (1) that a simple act of Congress "protecting the physical integrity of the flag in all cir­ cumstances" by prohibiting all flag-burning and simi­ lar destruction would not necessarily be inconsistent with the Court's opinion in Texas v. johnson, 109 S.Ct. 2533 (1989); and (2) that the proposed amend­ ment to the Constitution of the United States is a truly terrible idea.

Statutory Responses to Texas v. Jobnson Although my own view is that a statute imposing criminal punishment for the burning of a privately owned flag may be insufficiently tolerant of dissent­ ing views, 1 I agree with Dean Geoffrey Stone of the University of Chicago that there are at least reasonable grounds to believe that the United States Supreme Court would in fact sustain legislation "protecting the physical integrity of the flag in all circumstances." *Professor ofLaw, Duke University. Professor Dellinger A majority of the present members of the Supreme has been at Duke since 1969. He teaches constitutional Court have voted to uphold criminal convictions for law and history. During the 1988-89 academic year, misusing the United States flag. Four Justices (Rehn­ he was a Fellow of the National Humanities Center. quist, White, O'Connor, and Stevens) dissented in This article is Professor Dellinger's testimony on Thurs­ Texas v. johnson. A fifth member of the Court-Justice day, September 14, 1989, before the Committee on the Blackmun-has previously voted to sustain a convic­ judiciary of the United States Senate. tion for flag misuse. VOL. 8, NO. 1 I 7

In his dissenting opinion in Smith v. Goguen, 415 The constitutional issue that would u.s. 566 (1974), Justice Blackmun stated that the Court be raised by such a statute is one that should have sustained Goguen's criminal conviction for wearing a small United States flag sewn into the seat the Court has never confronted: may of his trousers in violation of Massachusetts' flag-misuse Congress protect a particular symbol­ statute. Justice Blackmun interpreted the opinion of the state's highest court as ruling out the possibility the American Flag-against all de­ that Goguen was convicted on the basis of any "com­ struction of whatever kind? municative element" and wrote that "I therefore must conclude that Goguen's punishment was constitution­ ally permissible for harming the physical integrity of the flag . . . ." idea is being protected. But it would not necessarily The majority opinion in Texas v. johnson accom­ be "related to the suppression of expression." The modated Justice Blackmun's view by emphasizing that constitutional issue that would be raised by such Johnson was convicted under a statute that made his a statute is one that the Court has never confronted: criminality turn on the communicative impact of his may Congress protect a particular symbol-the Ameri­ message. The Court, citing to Justice Blackmun's can Flag-against all destruction of whatever kind? Goguen opinion, states "The Texas law is thus not In United States v. 0 'Brien, 391 U.S. 367 (1968), aimed at protecting the physical integrity of the flag the Supreme Court sustained a statute that prohibiting in all circumstances, but is designed instead to protect all instances of burning and other destruction of draft it only against impairments that would cause serious cards-regardless of whether any idea was being ex­ offense to others." johnson, Slip. Op. at 13, and n.6. pressed by the destruction-on the basis of a fmding As the Texas Court of Criminal Appeals recognized, that the statute served various governmental interests Johnson was punished for the expression of an idea. in administering the Selective Service System. Those Texas did not make it a crime to burn or destroy the same administrative interests are not present when American flag. Texas prohibited actions affecting the flags are destroyed. flag if and only if those actions expressed an idea For me, the difficult question of constitutional law offensive to others. The "governmental interest" in (and of policy) is whether a blanket ban on burning johnson was thus directly related to the suppression the flag can be justified, as the draft card burning of the message being communicated. statute was, by a governmental interest "unrelated to The proposed federal statute (Biden-Roth-Cohen) the suppression of expression." If the purpose of the eliminates the particular constitutional flaw that was Flag Protection Act is not to suppress certain ideas, the basis for the Court's decision in Texas v. johnson what is the purpose? I have listened carefully to various by changing the federal statute from one that punishes formulations of that interest; several seem plausible, the expression of a "contemptuous" idea to one that none seem entirely clear or wholly persuasive. In the simply protects all flags against destruction without end, even though as a matter of constitutional theory regard to the idea being communicated, and without I continue to have doubts about the statute, I agree regard to whether there is even any idea being com­ with those who suggest that there is a reasonable basis municated at all. 2 Such a statute would not, of course, in the case law for concluding that the Supreme Court accomplish the objective of targeting for punishment would sustain it. those and only those who express an idea the majority One fmal note about the statute: Because it pre­ fmds offensive. Those who would desire to incarcer­ sents such a novel and difficult question, I would have ate Americans based on the idea those individuals supposed that it was in everyone's interest to have a express will not be satisfied with this statute. process of judicial review of the statute that was care­ The proposed federal statute would be "related ful, reflective and orderly. For this reason, the provi­ to expression" in the sense that a symbolic, expressive sion in the House Bill (H.R. 2978) providing for an extreme form of expedited review seems to me very ill-considered. To have this issue immediately rushed to the Supreme Court the instant it is raised in the "The Texas law is thus not aimed at pleadings at the trial level in a single district court protecting the physical integrity of the is not a formula likely to produce a wise and reflec­ tive judgment on a matter of fundamental importance flag in all circumstances, but is de­ for the future of the First Amendment. The "issue" signed instead to protect it only against would be considered by the Supreme Court stripped of any of the informing context that could be sup­ impairments that would cause serious plied by a full record. Whatever "facts" are available offense to others. n at that premature stage may well be so variant as to distort the adjudication process. DUKE LAW MAGAZINE / 8

If the purpose of the Flag Protection "Congress shall have Power to lay and collect Act is not to suppress certain ideas} Taxes ..." what is the purpose? "Congress shall have Power ... To regulate Commerce . . . among the several states "Congress shall have Power ... To provide At a minimum that language should be altered to for the Punishment of counterfeiting . . . provide for Supreme Court review (bypassing the Court "[Article 1, sec. 8]; and of Appeals) only after a fInal decision in the trial court. "Congress shall have power to enforce, by Better yet would be a decision to follow the normal appropriate legislation, the provisions of this appellate review process, which would provide the article." [Fourteenth Amendment, sec. 5] Justices of the Supreme Court with the insights and reflection by Judges of the Court of Appeals. It is sure­ Each of these granted powers gives legislative juris­ ly not in the interest of either supporters or opponents diction to Congress. But the exercise of each of these of this statute to short circuit the process of deliber­ powers and all other powers granted to the govern­ ation by which its Validity should be determined. ment is limited and constrained by the Bill of Rights. 3 Congress may not, for example, exercise its Fourteenth The Proposed Amendment Amendment "power" to enforce the equal protection to the United States Constitution clause by legislation requiring all newspapers to pro­ The President of the United States has proposed mote equality daily in their editorials. an amendment to the Constitution of the United States If the President's proposed Twenty-Seventh Amend­ to permit the punishment of those who "physically ment were read literally, it would do absolutely nothing desecrate" the flag. This potentially dangerous amend­ other than unnecessarily make explicit the authority ment would create an entirely unlimited exception for Congress to legislate with respect to the flag-a to either one, some, none or all of the Bill of Rights; power that has always been assumed to exist in any it would place this power in the hands of all future event. Nothing in the text of the proposed amend­ Congresses, fIfty state legislatures, the government ment would exempt the exercise of that power from of the District of Columbia, and perhaps as many as constraints of the First Amendment. Therefore (on 14,000 local governments; it would set a dangerous this reading) the amendment would not alter in any precedent for resorting to the amendment process way the Supreme Court's decision in Texas v. johnson. for the curtailment of the rights of the unpopular in Any act passed under the amendment would still have general, and for unpopular speech in particular; and to satisfy the First Amendment, and any statute which, it would deprive the First Amendment of much of like the Texas statute, made the criminality of burning its moral legitimacy by suggesting that speech that turn on the nature of the message being communi­ is deeply offensive to most of us will be suppressible, cated, would still be invalid under johnson. while speech deeply offensive to others must continue My colleague, William Van Alstyne, one of the na­ to be tolerated. tion's most distinguished constitutional scholars, be­ The Amendment Fails to State Which Provisions, lieves that the amendment clearly does not override If Any, Of the Bill of Rights It Will Override. One the First Amendment. In his view, Texas v. johnson troublesome aspect of the President's amendment would be decided exactly the same way under this proposal is that its text leaves entirely unanswered proposed amendment because any exercise of the the absolutely critical question of which provisions power granted to Congress under the amendment of the Bill of Rights it will trump or override. The that turned on the communicative message or impact amendment proposal reads: (as the Texas statute did) would continue to be inval­ id under the First Amendment. "THE CONGRESS AND THE STATES SHALL This clearly does not appear to be what the spon­ HAVE POWER TO PROHIBIT THE PHYSICAL sors of the amendment intend. Unless this proposed DESECRATION OF THE FLAG OF THE amendment is understood to override or trump the UNITED STATES." On its face, this amendment does not purport to override either the First Amendment or any other It is surely not in the interest of either provision of the Bill of Rights. It simply (and unnec~s­ supporters or opponents of this statute sarily) adds an additional basis of legislative authority to the powers conferred upon Congress. Its wording to short circuit the process of delib­ is similar to the power-conferring clauses found in eration by which its validity should Article I and in the fInal sections of the Thirteenth, Fourteenth, and Fifteenth Amendments. It is thus be determined. similar to: VOL. 8, NO. 1 / 9

One troublesome aspect of the Presi­ additional, critical piece of evidence: the testimony dents amendment proposal is that its of a witness who heard the defendant say quietly, just text leaves entirely unanswered the as he began his "ceremony," "if they can shoot James Meredith, we don't deserve a damn flag." The defense absolutely critical question of which counsel objects to the introduction of this evidence provisions of the Bill of Rights it will (which is obviously critical to the government's case) on the ground that its introduction would mean that trump or override. the defendant would be convicted for the expression of an idea in violation of the First Amendment. Would the Administration's proposed Flag Amend­ First Amendment and other provisions of the Bill of ment permit a defendant who set fire to a flag under Rights, it does nothing. But if it does override provi­ these circumstances to be convicted on the basis of sions of the Bill of Rights, which provisions does it evidence consisting of the statement he made about override? Some of them? All of them? Only the First, the flag? I have no idea what the result would be, and but not the Fourth, Fifth, and Eighth? neither does anyone else. And the reason we don't Could a state, for example, in some time of great know what the answer to this simple question would strife in the twenty-first century, punish flag desecra­ be is that the spokesmen for the Administration will tion without having to meet the standards of the Cruel not say whether, and to what extent, their proposed and Unusual Punishments Clause? Could a state, in amendment overrides the First Amendment. a future not yet clear to us, dispense with jury trials This is not a trivial problem. It is drawn from one for flag-desecrators? Could a particularly zealous local of the four cases the Supreme Court has decided on government ignore the Fourth Amendment and con­ the subject. And it will inevitably recur under virtually duct general house-to-house warrantless searches look­ all statutes passed (or retained) after the passage of ing for evidence of desecration? the proposed Flag Amendment. It will recur because Because The Amendment (and its sponsors) Are very often the only basis for determining whether Silent About The Critical Question Of Whether And a physical act involving the flag is a legal act or a "des­ To What Extent It Overrides the First Amendment, ecration" would be evidence of what the defendant The Proposed Amendment Will Produce Uncertainty, said , or what he wrote on a banner, at the time of Confusion and Conflicting Court Decisions. The Ad­ the physical act. ministration has steadfastly declined to state whether, There are, as virtually every witness has noted, and to what extent, the powers to be exercised under uncertainties about the application of the First Amend­ this amendment would be limited by the First Amend­ ment to various acts under various statutes under the ment in particular. Until this critical question is an­ Constitution as now written. But at least we know swered, it would be wholly irresponsible to propose what the basic principles are. The proposed amend­ this amendment to the Constitution. A wholly new ment would introduce a wholly new jurisprudence, jurisprudence of the Twenty-Seventh Amendment will and thus produce far more uncertain litigation, espe­ emerge, and it will be marked for years to co~e by cially since neither the text of the proposed amend­ uncertainty and conflicting interpretations. No Issue ment nor its sponsors say whether it overrides the will be more productive of uncertain and conflicting First Amendment, and if so, to what extent. adjudication than the issue of what, if any, First Amend­ ment defenses may be invoked by one prosecuted for some form of desecration after the proposed amend­ ment becomes law: Consider a simple, and realistic example, drawn Some states may assume that ((the from facts very similar to those in Street v. New }brk, flag N includes a picture in a news­ 394 U.S. 576 (1969). After the ratification of the Ad­ ministration's proposed 1Wenty-Seventh Amendment, paper; others may judge that it en­ a man is prosecuted under a statute identical to the compassed only a cloth version. Some present federal statute which makes it a crime to "cast contempt" upon the flag by burning it. The facts show states may assume that placing a flag that he is a veteran who was found kneeling over a on a pair of boots, similar to those carefully folded flag he had been given for his service in the military. Solemnly, with tears in his eyes, he the President gave to a leader of China, quietly burned the flag. On these facts-virtually iden­ constitutes (physical desecration N of tical to Street-he could not be successfully prosecuted. There is as yet no evidence that he is treating the flag the flag. (Boots, after all, have often with "contempt" or as other than "sacred" (desecra­ been a symbol of repression.) tion). The prosecutor, however, proposes to offer one DUKE LAW MAGAZINE I 10

Quick resort to the amendment process to make criminals out of a handful of very unpopular dissidents is a dan­ gerous precedent. Sober reflection is missing from this process.

The Proposed Amendment Confers Power of Un­ certain Dimension on Fifty States and Countless Local Governments. The conferral of power of uncertain scope, cutting for the first time into the Bill of Rights, might be of lesser concern if only Congress were be­ ing so empowered. But the proposal also grants fifty different states the authority to enact legislation to prevent flag desecration. And that increases, by fifty Walter Dellinger testifies before the Senate Committee. times, the risk that harsh and arbitrary legislation might be enacted at some point in the near or distant future. principal check, however, has been the Congress. Most This provision also creates the possibility that there of the amendments actually proposed by Congress will be a wide array of different legislative interpre­ have been ratified by the states: twenty-six out of tations by different state legislatures of what consti­ thirty-three, to be exact. tutes "physical desecration" and what constitutes "the States cannot amend, revise, soften, compromise flag." Some states may assume that "the flag" includes or substitute for a proposed constitutional amendment. a picture in a newspaper; others may judge that it They can only vote to ratify or reject. Up or down. encompassed only a cloth version. Some states may For the flag, or against the flag. In these circumstances assume that placing a flag on a pair of boots, similar it is difficult for state legislators to deflect amendment to those the President gave to a leader of China, con­ proposals that are immediately popular. Those that stitutes "physical desecration" of the flag. (Boots, after affect only a dissident group will be difficult to resist. all, have often been a symbol of repression.) Some With each amendment of this kind, resistance may assume that an artist's rendering of "the flag" in would be lessened for the next amendment affecting green, white and orange constitutes "physical desecra­ an unpopular group. Proposal of this amendment tion;" others may conclude to the contrary. would dangerously "lower the threshold" at which This raises the question of why it is thought neces­ amending the ConStitution is seen as a proper response sary to give to state legislatures (and local governments) to a perceived problem. Not only dissidents are at risk. any new constitutional power over the subject of the Rights like freedom of the press, which now seem flag of the United States. The national government secure, would not necessarily be so in the future. would seem to be the appropriate branch to deter­ The Proposed Amendment Would Undermine the mine the proper protection of the national flag. The Moral Legitimacy of the First Amendment. Let us as­ flag is supposed to be a symbol of nationhood and sume that all of the interpretative difficulties of this national unity. Why then submit its regulation to the amendment can be cured, that it does not in fact pro­ varying legislative determinations of fifty different duce harsh measures and unintended consequences, states? and that it does not lead to a rush of additional amend­ Adoption of the Proposed Amendment Could Set ments curtailing other First Amendment or other rights. a Dangerous Precedent for Frequent Resort to the What then will we have done to the fabric of the Amendment Process for the Curtailment of the Rights First Amendment? For two hundred years we have of the Unpopular. The point is a simple one. Quick told groups of Americans who are deeply and under­ resort to the amendment process to make criminals standably offended by certain kinds of speech activ- out of a handful of very unpopular dissidents is a dan­ gerous precedent. Sober reflection is missing from this process. If this amendment is rushed through Proposal of this amendment would Congress and the states, I fear that the appetites of many for quick ways to leap over constitutional bar­ dangerously ((lower the threshold" at riers will be whetted. which amending the Constitution is I have argued in the past that the amendment process is a difficult one. [Dellinger, The Legitimacy seen as a proper response to a per­ of Constitutional Change: Rethinking the Amendment ceived problem. Process, 97 HARV. L. REV. 386, at 427-430 (1985)] The VOL. 8, NO. 1 I 11

It is difficult to imagine a more irre­ My colleague William Van Alstyne writes that "the Court's flag decision made a liar out of the demon­ sponsible act by this Congress than strator who set the flag in flame." The Supreme Court's to send out to fifty state capitols an decision in Texas v. Johnson said to Johnson: It is not possible to destroy the flag and the principles for amendment to the Constitution for which it stands. You can burn one copy, one version, a purpose that could likely be achieved one replica of the flag. But you carmot burn THE by FLAG. It still flies proudly everywhere, every day, over a statute. the land of the free and the home of the brave. 4 The question before this committee is whether you will ities that they must tolerate those offensive messages now propose a hasty and ill-considered amendment in order to serve the higher goal of allowing expres­ that would compromise that freedom and that bravery. sion that is "free, robust and uninhibited." We under­ I urge you not to turn Gregory Lee Johnson into stand your hurt, we say to them, but we must maintain a prophet. The Administration's proposal would re­ the fundamental principle that "the government may ward Johnson with his ultimate trophy, the Twenty­ not prohibit expression simply because it disagrees Seventh Amendment to the Constitution of the United with its message" (Texas v. Johnson, Slip Op. at 18). States. If we adopt this amendment, Johnson will have But now, when we face the communication of an succeeded beyond his wildest imagination. He will idea-disrespect for our flag-that deeply offends the have succeeded in taunting us into grafting a perma­ great majority of us, we quickly pass a constitutional nent blemish onto our most fundamental constitutional amendment eradicating the offending expression from principle. He will have succeeded in making us just public view. look a little silly, and a little less free, and a little less What would this proposed act of constitutional brave. revision do to the moral legitimacy of the stance our Constitution has taken (and will continue to take) in I. Although Americans are free either to fly the flag proudly; to ignore defense of expression that offends many Americans the flag, or to express contempt for it, we have, in fact, chosen by over­ as deeply as flag burning offends the great majority whelming numbers to fly and display it proudly and to treat it respect­ fully. And our decision to do so is made far more meaningful by the fact of us? As Professor Arnold Lowey put it to me so well, that it is our free decision. The individual choice of millions of Americans "What will we now say to the Holocaust survivor to respect the flag would be far less meaningful if it were the only choice who must tolerate neo-Nazi thugs marching through one could make to avoid imprisonment by the government. As the Texas Court of Criminal Appeals said, in its opinion overturning Johnson's con­ Skokie?" Once we have quickly passed the Twenty­ viction, " ... a government cannot mandate by fiat a feeling of unity in Seventh Amendment to protect the sensibilities of its citizens." Johnson v. State, 755 S.w2d 92 (Tex.Cr.App. 1988). those who revere the flag, what do we say to those 2. Much of the criticism of the Biden-Roth-Cohen bill has concerned its possible application to paper cups, napkins or similar items with flags who are particularly offended by, but must continue printed on them, or to the crumbling of newspapers containing sales to tolerate, the burning of crosses by hooded mem­ advertisements with pictures of the flag. The problems could be elimi­ bers of the Ku Klux Klan, a brazen reminder of the nated simply by defining the "flags " that are covered as flags sold or distributed for display. era of lynching and terror? And what do we say to 3. The Bill of Rights constrains not only powers exercised under the those who find themselves silenced and marginalized original Constitution, but also powers exercised under amendments added by sexualized (but not constitutionally "obscene") por­ later in time than the first ten amendments. That is, even though the Fourteenth Amendment was added after the Bill of Rights, it does not trayals of women? What enduring constitutional prin­ override or trump the First Amendment or any other provision of the ciple will remain unimpaired that will legitimately Bill of Rights. surmount these claims, once we have swiftly moved 4. The Texas Court of Criminal Appeals noted that the State had not shown that isolated acts of flag burning had lessened the value of the to amend the First Amendment to get rid of expres­ flag as a symbol of national pride. Even if the State has a legitimate inter­ sion that the majority of us fmds offensive? est in promoting the flag as a symbol of national unity, the Texas Court wrote in johnson, the State in its brief "does not aver why the American flag is in such 'grave and immediate danger' of losing the ability to rouse Conclusion feelings of unity and patriotism such that the Texas statute is 'essential' to It is difficult to imagine a more irresponsible act prevent its devaluation ... " Johnson v. State, 755 S.w.2d 92 at 97 (Tex. by this Congress than to send out to fifty state capitols Cr. App. 1988). In the five years since Johnson burned a flag in Dallas, there does not appear to have been any noticeable decrease in the Amer­ an amendment to the Constitution for a purpose that ican people's devotion to the flag as a unifying symbol. could likely be achieved by a statute. Whatever the shortcomings of a statute may turn out to be, they can be corrected, rapidly and easily, by a simple act It is not possible to destroy the flag of Congress. A hastily approved constitutional amend­ ment, once launched, will be largely beyond recall and the principles for which it stands. or revision. A statute is thus far less threatening to lVu can burn one copy, one version, our constitutional system than the precedent of this amendment, which would be sent to the states after one replica of the flag. But you can­ the shortest incubation time of any proposal in this not burn THE FLAG. century: DUKE LAW MAGAZINE / 12

The Biggest Deal Ever Deborah A. DeMott*

wenty-five billion dollars buys a lot of Oreos, The RJR Nabisco transaction exempli­ Wins tons, and Milk-Bone dog biscuits. In early December 1988, Kohlberg, Kravis, fies transactions that have, over the T Roberts & Co. (KKR), a firm specializing last few years, provoked major changes in leveraged buyouts, won the contest for ownership and control of RJR Nabisco, Inc., a victory that resulted in the United States economy. in the largest corporate control transaction in the United States to date. When the LBO was completed in 1989, the nineteenth-largest industrial company in the United States had increased its indebtedness from $5 billion to $20.1 billion. RJR Nabisco's former public shareholders received, in addition to cash, a package of preferred stock and notes convertible into com­ mon stock, but immediate control of the company, and its equity, passed to KKR in exchange for a $1.5 billion equity investment. KKR itself provided an esti­ mated 1 % of this equity investment, or $15 million, and a pool of funds that KKR gathered from insti­ tutional investors provided the remainder. The RJR Nabisco transaction exemplifies trans­ actions that have, over the last few years, provoked major changes in the United States economy. Beyond the transaction's magnitude, its structure and origins demonstrate the increasing obsolescence of long-held assumptions about the fmance and governance of large corporations in the United States. For example, many have assumed that the structure of very large com­ panies inevitably involves a division between ownership interests, held by public shareholders, and manage­ ment, composed of individual managers who typically invest little of their own wealth in company shares. In addition, many have believed that very large cor­ porations are immune to the risk of a takeover simply because of the massive amounts of money required, even if a good number of a corporation's shareholders might avidly accept an offer to sell their shares at a pre­ *Professor of l£lw, Duke University Professor DeMott mium over market price. Indeed, many have thought joined the Duke l£lw faculty in 1975. In 1986, she that even large corporations with a predOminance was a Fulbright Senior Scholar at Sydney and Monash of institutional shareholders enjoy such immunity.l Universities in Australia. Her writing concerns corpo­ Many large corporations with solid earnings have long rate law, securities regulation, and fiduciary obligation. been able to fmance most of their needs for additional This article is based on Professor DeMott's Intro­ capital out of retained earnings and thus to operate duction to the Symposium on Fundamental Corporate independently of other equity capital sources like Changes in the February 1989 issue of the DUKE LAW public trading markets. Moreover, such corporations JOURNAL. The article reflects events through Sep­ have used little long-term debt to fmance operations. tember 30, 1989. As a result of the interrelationship among these factors, VOL. 8, NO. 1 / 13

certain large corporations have seemed to resemble This circumstance-that the KKR bid non-ownership institutions (like universities, perhaps) more than smaller public corporations in which equity appeared to be at least semi-hostile­ owners' interests and claims seem more immediate. troubled some investors in KKR's ­ The soundness of these long-held assumptions has been challenged by a series of recent transactions, equity pool. culminating in the LBO for RJR Nabisco. This article develops the history of the RJR Nabisco acquisition and examines its impact, along with the impact of to its credit. In 1979, it arranged the first LBO of a large similar transactions, on these assumptions. It then company listed on the New York Stock Exchangell sketches briefly some of the pertinent legal questions and, in 1984, the first billion dollar buyout. 12 In 1985, raised by the transaction. KKR began the $6.4 billion LBO of Beatrice Com­ panies, a transaction of record size at the time.13 KKR The Story Begins reportedly has about $5 billion available to invest as On October 19, 1988, F. Ross Johnson, the presi­ equity in such transactions, in addition to its own dent and chief executive officer of RJR Nabisco, took capital. 14 In fact, KKR generally invests in only 1% the outside directors of his company's board out to of the equity in its deals from its own capital. Virtually dinner in Atlanta on the night before a board meeting. all LBO funds are organized as limited partnerships, Mr. Johnson told the outside directors that he was con­ which facilitates individual investors' ability to opt sidering leading an LBO for the company because out of participating in particular fund investments. IS the price of its stock had, despite his two year effort Very large LBOs have become more feasible since to increase the stock's value by restructuring the com­ banks have developed the practice, when cOmmitting pany, continued to lag. 2 The directors were stunned themselves to a large loan, of selling smaller pieces of but did not object to Mr. Johnson's proposal: "We the loan to other fmancial institutions. Indeed, about came to the conclusion that shareholders would be 9% of all U.S. bank loans made to corporate borrowers best served by a short-term gain," one of the directors in 1987 were connected to LBOs.16 In addition, ex­ recalled later.3 At the time of Mr. Johnson's proposal, pansion of the market for high-yield debt securities RJR Nabisco was trading at around $55 per share,4 (a.k.a. "junk bonds") enhanced the potential for large and thus the stock market's implicit price tag on the LBO transactions. For example, KKR fmanced its offer entire company was around $13 billion. for RJR Nabisco in part through the issuance of junk Although Mr. Johnson's formal proposal did not bonds to be sold by Merrill Lynch & Co. and Drexel emerge until a few weeks later, RJR Nabisco promptly Burnham Lambert. Many have credited the latter firm issued a press release announcing that members of with developing the market for high-yield debt securi­ its senior management, in association with Shearson ties/7 Drexel Burnham, however, was also the subject Lehman Hutton, would offer $17 billion,S or $75 per of a January 1989 federal information that alleged share, to buyout RJR Nabisco's shareholders. This an­ various violations of the federal securities laws, none nouncement promptly led to a steep drop in the price involving the RJR Nabisco transaction. 18 of the company's outstanding bonds.6 As a senior bond KKR, Mr. Johnson, and Shears on Lehman discussed trader at Drexel Burnham Lambert (which will short­ the possibility of a joint or combined bid, but they ly enter the story in a major role) said, "Bondholders reached no agreement. Neither KKR nor Shearson suffer from those sorts of transactions .... It is clear was willing to surrender control in any joint deal or that the industrial bond market cannot benefit from to share control on an equal basis. 19 Although KKR this deal."7 Indeed, institutional holders of RJR Nabisco and Shearson reportedly later reached an agreement bonds eventually sued, alleging that, among other in principle for a joint bid, the agreement collapsed things, the company neglected to disclose that discus­ when the firms' investment banks failed to agree on sions about a prospective LBO had already occurred which bank would manage the debt securities offer­ when the holders bought their bonds in spring 1988.8 ings necessary to fmance the bid. 20 In any event, as On October 25, six days after the RJR Nabisco a consequence of the participants' failure to make directors' dinner with Mr. Johnson, KKR announced a joint bid, the KKR proposal came to the directors a competing offer at $90 per share for a total of $20.3 of RJR Nabisco without incumbent management's billion, subject to the approval of RJR Nabisco's board.9 endorsement or participation.21 This circumstance­ KKR is the leading LBO specialist in the United States. that the KKR bid appeared to be at least semi-hostile­ As a result of its prior transactions-all coupling large troubled some investors in KKR's equity pool. The head amounts of debt (principally from bank loans and of one potential investor, a state pension fund, char­ high-yield debt securities) with small pools of equity acterized the KKR offer as "a hostile friendly deal."22 collected from institutions-KKR has become an enor­ In fact, two of the investors in the KKR equity pool mous industrial holding company with nearly as much were pension funds of companies that, like RJR Na­ annual revenue as the General Electric Company.lo bisco, have headquarters in Atlanta. 23 Nevertheless, Formed only in 1976, KKR nevertheless has many firsts on November 2, Charles Hugel, an outside director DUKE LAW MAGAZINE / 14

Numbers aside, the most remarkable On November 8, RJR Nabisco's special committee aspect of this transaction is that the promulgated five pages of formal guidelines for the ~sposition of the company and its assets. These guide­ management-sponsored deal lost, even lines contemplated a single round of bidding, to con­ after the management group made clude on November 18. 36 The committee was eager to structure the transaction to leave RJR Nabisco's share­ a bid economically equivalent (and holders a substantial equity stake in the post-buyout perhaps superior) to KKR's. company.37 The committee also announced that it would favor only a bidder that could do something for RJR Nabisco's shareholders beyond what the com­ pany itself could do-like providing a large initial cash serving as chairman of RJR Nabisco, said that the board 38 was "interested in receiving proposals . . . from all payment rather than simply selling off food interests. credible parties wishing to present such proposalS."24 KKR's success in obtaining sufficient information On November 4, a third group announced that it from RJR Nabisco's managers aided its preparation of was considering making an offer. Led by Forstmann a bid. A few days prior to the November 18 deadline Nabisco's chief told KKR that he wanted to provide ' Little & Company, another LBO specialist, and Gold­ man, Sachs & Company, a large investment bank, the more information than other managers had furnished group also included three consumer goods companies.25 about the subsidiary's operations. KKR's head lawyer This group's announcement provoked controversy subsequently sent the special committee a letter on behalf of KKR complaining that some of RJR Nabisco's on two different scores. First, senior partners in Forst­ 39 mann, Little had failed to reach terms on a bid during managers were apparently withholding information. earlier discussions with Mr. Johnson's management The committee promised to remedy the problem.40 group but, according to the management group, had Some of the committee's own fmancial advisors sim­ promised not to bid for RJR Nabisco on their own.26 ilarly complained that at the initial stages even they had not received adequate information to evaluate Second, a special committee of RJR Nabisco direc­ 41 tors, set up to evaluate all offers, had told KKR and bids. Mr. Johnson's group that it wanted no "pre-selling" On November 18, both the management group of the corporation's assets before the committee de­ ~d KKR submitted bids. The board's .special com­ termined whether to support a buyout.27 The inclusion ffi1ttee, however, extended the bidding deadline by ten of the consumer products companies in the Forst­ days-to November 29-permitting a third bidding group, led by First Boston Corporation, to develop m~, Little group, however, suggested that pre-selling ffi1ght be occurring.28 This issue fell away when the a firm offer.42 On November 18, the highest bid was the management group's bid at $100 per share, for Forstmann, Little group announced, less than two 43 weeks later, that it had decided not to submit a bid.29 a total of $22.7 billion. KKR's bid was lower at $21.3 billion.44 The First Boston deal, which would have The deal that Mr. Johnson and a small number of other senior executives had made with their fmancial yielded a price of between $23.8 and $26.8 billion partners also provoked controversy in early Novem­ contemplated an installment sale of RJR Nabisco's fo~d businesses to the investment group by the end of 1988 ber. This deal promised to give the small management 45 group 8.5 % of RJR Nabisco's equity, a stake that could to achieve tax savings. Since Congress had in 1988 ' repealed the tax provisions that favored installment rise to 19.5% if the company met specified financial goals.30 In addition, the deal gave the group veto power sales (effective January 1, 1989), closing this aspect over board decisions in the post-buyout company of the First Boston deal by the end of 1988 was crucial. and promised group members a combined annual Further, the installment sale would result in a $13 bil­ compensation of at least $18 million, plus at least $20 lion installment note, which the investment group million in bonuses.31 In an SEC filing, RJR Nabisco ~ the note's holder, would need to "monetize" (~rn disclosed that Mr. Johnson and nineteen other senior mto cash). To date, no one had achieved such a feat executives would receive "golden parachutes" (or sev­ with a note of comparable size. 46 erance payments contingent on a sale of the company) Finally, on November 30, after much confusion worth $52.5 million.32 After a newspaper disclosed o? November 29, KKR claimed victory. Its winning the terms of this deal, Mr. Johnson wrote to RJR Na­ bId offered cash and securities worth $109 for each bisco's chairman, Mr. Hugel, stating that he had asked his lawyers to "analyze ways in which this stock could be distributed to our employees."33 In this same letter, If control of the corporation is to shift, Mr. Johnson argued that his group's compensation all things being equal, even outside and equity-share percentages were typical for man­ by agement buyout agreements.34 Reportedly, however, directors would prefer a victory one potential fmancial partner in Mr. Johnson's group, a management-backed group. Salomon Brothers, refused to agree to these terms.35 VOL. 8, NO.1 / 15

of RJR Nabisco's 227 million common shares and $108 The committee ultimately recom­ for each of the company's 1.3 million outstanding pre­ ferred shares, totaling $24.88 billion.47 Although the mended the KKR proposal on the management group claimed that its bid had a higher basis of nonfinancial factors. total value, $25.42 billion (or $112 per share), RJR Na­ bisco issued a statement that its advisors assessed the two offers as "substantially equivalent."48 The com­ bid called for $13.75 billion to be raised from banks, mittee of outside directors recommended acceptance and Mr. Kravis asked Japanese banks to provide $5.5 of the KKR offer, and the full board (apparently with­ billion; some observers saw these banks' participation out Mr. Johnson's participation) voted in favor of the 62 49 as crucial to the deal. In Tokyo, Mr. Kravis also spoke committee's recommendation. The First Boston with potential Japanese customers interested in pur­ group dropped out of the bidding as a result of un­ chasing junk bonds that were expected to form part certainties about the bank financing for its bid. 50 of the deal. 63 In addition to Japanese fmanciers' assis­ The management group subsequently complained tance, the original deal also required $ 5 billion in short­ that the bidding process had been unfair. The process term loans, or "bridge fmancing," with $3.5 billion had become somewhat confused around midnight, coming from Drexel Burnham Lambert and $1. 5 bil­ November 30, when the management group learned lion from Merrill Lynch.64 KKR's plan called for re­ that the board committee was working out a deal with fmancing these bridge loans within a year from the KKR. At the 5 p.m. bidding deadline on November proceeds of the sale of $2 billion in zero-coupon high­ 29, KKR had submitted a bid of $106 per share, top­ 51 yield bonds and $3 billion in interest-paying high-yield ping the management group's bid of $101 per share. bonds.65 Early in the morning of November 30, the manage­ KKR's efforts to recruit banks succeeded. By Janu­ ment group offered a new bid of $108 per share and 52 ary 17, 1989, the firm reported that its bank syndicate demanded that it be considered. By midday on No­ had received commitments for $14 billion,66 an indi­ vember 30, the board committee told both groups cation that banks had even oversubscribed. Although that they had a few minutes to formulate a fmal pro­ 53 analysts were optimistic that KKR could also place posal. KKR then raised its bid to $108 per share, and the necessary junk bonds, they noted that junk debt the management group raised its bid to $112 per share. financing of other large deals would require the mar­ The committee invited KKR to raise its bid further, 54 ket to absorb $12 billion of such debt in early 1989, which it did, to $109 per share. KKR then gave the possibly leading to a rise in junk bond interest rates. committee's advisors a signed merger agreement and 55 In mid-January, Drexel increased the amount of its stated that they had half an hour to sign on. In forty piarmed junk bond sale from $3.5 billion to $4 billion.67 minutes, the committee's advisors came back with By January 31, however, KKR's need for a bridge loan the chairman's signature. 56 was eliminated: Drexel had decided that it would be Belying the defmiteness of the amounts given able to sell $5 billion rather than $3 billion in short­ above, each proposal consisted of a complex mixture term notes, to be refinanced in the spring with a sale of cash and securities, so that differing valuations of of long-term junk bonds.68 One novel feature of each proposal were inevitable. The management group Drexel's note sales, perhaps responsible in part for offered per share $84 in cash, preferred stock valued their success, was KKR's payment of cash fees (ana­ at $24, and stock in the post-buyout company valued logous to "points" paid to a mortgage lender), along at $4 (and which would total 15 % of RJR Nabisco's with equity stakes in RJR Nabisco, to note buyers. KKR equity).57 KKR offered $81 in cash per share, preferred funded these novel cash fees partially from RJR Na­ stock valued at $18 with dividends to be paid with bisco's assets, and Drexel funded the rest. 69 additional shares of preferred stock, plus convertible 58 As a result of its magnitude, KKR's buyout of RJR debentures that it valued at $10. After four years, Nabisco will naturally generate large fees for the fi­ the debentures would be convertible to 25% of the nancial institutions involved in the LBO and related post-buyout company's equity. 59 transactions. KKR was entitled to a $75 million fee The committee ultimately recommended the KKR for arranging the transaction, a 1.5% management fee proposal on the basis of nonfmancial factors. KKR for the use of its buyout funds, and 20% of any profit promised to sell neither the tobacco operations nor much of the food business, whereas the management group had plarmed to sell all the food operations.60 As a result of its magnit~ KKR's KKR also promised to try to maintain employees' ben­ efits, even if it sold particular business operations.61 buyout of RJR Nabisco will naturally Under KKR's proposal, moreover, current shareholders generate large fees for the financial would ultimately receive more equity in the post­ institutions involved in the LBO and buyout company. Three weeks after KKR's victory, the firm's head, related transactions. Henry Kravis, flew to Tokyo. The fmancing of KKR's DUKE LAW MAGAZINE I 16

target, and corporate management can exacerbate such Mr. Johnson} who came from Nabiscq uncertainty by sharply limiting the outside bidder's decided that the company should move access to nonpublic information. Moreover, fInancing is usually easier and cheaper for management-allied its headquarters from Winston-Salem groups. Leveraged buyout funds usually will not fI­ 8 to Atlanta} describing Winston-Salem nance a hostile bid. ! Incumbent management's con­ trol over the corporation's assets typically enables it as unduly ((bucolic" for a cosmo­ to obtain lower cost fInancing. 82 politan enterprise like RJR Nabisco. Senior management's often considerable rapport with the corporation's directors also provides an advan­ tage for management groups. If control of the corpo­ that each pool of funds garners from a successful ration is to shift, all things being equal, even outside LBO.70 Although the $75 million fee is the largest that directors would prefer a victory by a management­ KKR has received to date for a single transaction, the backed group. Current managers seem more likely amount only slightly exceeds fees that KKR has re­ than total "outsiders" to be familiar with corporate ceived for considerably smaller transactions in the operations and sympathetic to the interests of non­ past.71 As of the end of January, Drexel was to receive management employees and others with long-standing $201.9 million and Merrill Lynch $84.4 million for interests in the corporation's stability. arranging the requisite junk bond fInancing.72 Each Several factors explain why the contest for RJR investment bank also expected $25 million in advisory Nabisco turned out differently for the management fees. 73 RJR Nabisco disclosed that it would pay $14 group. Although management's fIrst offer-$75 per million to each of the two investment fIrms-Dillon share-represented a 36% premium over the then­ Read & Company and Lazard Freres & Company­ current RJR Nabisco market price, it soon appeared that advised the board.74 The law fIrms involved in unduly low. Within four days, KKR had offered $90 the transaction have also earned record-setting fees. 7s per share, and soon thereafter RJR Nabisco's directors Finally, banks that agree to help fInance LBOs typically gained access to studies setting the value of the com­ receive commitment fees set by a percentage of the pany, if its component businesses were sold separately, loan amount, a percentage that increases with the at prices in excess of $90 per share.83 KKR's ability amount of the loan. The smallest loan amount for to make a credible bid at $90, given RJR Nabisco's the RJR Nabisco transaction ($100 million) carried a size, meant that it could raise suffIcient fInancing for fee of 1.5%, and the largest lenders were reportedly a $20.4 billion deal. The management group, how­ to receive as much as 3.25% in fees. 76 ever, might have underestimated its likely competitors' Numbers aside,77 the most remarkable aspect of ability to raise serious money on short notice. The this transaction is that the management-sponsored deal management group's posture became even more con­ lost, even after the management group made a bid troversial when a newspaper article revealed the gen­ economically equivalent (and perhaps superior) to eroSity of Shearson Lehman's fmancial arrangements, KKR'S.78 Such an outcome stands out because manage­ potentially producing $100 million in profIts for each ment groups initiating buyout proposals typically de­ management participant. 84 As other bidders joined feat outsiders' competing proposalS. 79 Why is this? And the fray, moreover, the contest became lengthier and why did the RJR Nabisco contest turn out differently? pricier. In the end, KKR's proposal, compared with the fmal management-backed proposal, was more gen­ Why RJR Management's Offer Failed erous to RJR Nabisco's shareholders, eventually giving Several factors explain management groups' fre­ them 25% of the company's equity. In addition to quent success over competing bidders. If a manage­ shareholder benefIts, the KKR deal was kinder to the ment group initiates a buyout transaction, it enjoys company's nonmanagement employees. Whereas the advantages that flow to any initial bidder: such a bidder management group announced plans to sell off all chooses the time for the transaction and structures of RJR Nabisco's food bUSinesses, KKR stated that it an initial proposal to which other prospective bidders planned to retain most of the food businesses and all must respond. Moreover, events often move quickly, of the tobacco operations. Further, unlike the man- limiting the likelihood that other prospective bidders will make competing proposals at all. Management groups also enjoy unique advantages. As the RJR Na­ Winston-Salem families had handed bisco experience demonstrates, these groups have down the stock for generations} like unlimited access to nonpublic information on their company, whereas outside bidders have circumscribed heirlooms or homeste~ exhibiting access to such information at best, and often face an unusually emotional} personalized serious initial diffIculty in getting any access. 80 Uncer­ tainty thus might cause outside bidders to systematically tie to the company. discount the top price they are willing to pay for a VOL. 8, NO.1 117

Like many companies that have re­ plaintiffs alleged, among other things, that the direc­ structured through buyouts or lever­ tors' special committee chose KKR in order to repu­ diate Mr. Johnson and thereby publicly disassociate aged recapitalizations, RJR Nabisco themselves from the harsh criticism evoked by the had a strong cash flow . .. management proposal.96 The court denied the plain­ tiffs' motion for a preliminary injunction. In light of evidence that the committee members and directors agement group, KKR explicitly agreed to guarantee acted in good faith, the court held that the plaintiffs nonmanagement employees' fringe benefits through would be unlikely to establish that the special com­ 1991, notwithstanding any sale of business operations. 85 mittee's action showed an improper motivation that Another factor that perhaps contributed to the worked in KKR's favor. 97 The court observed, how­ demise of management's offer was the involvement of ever, that the alleged motivations, if established, would F. Ross Johnson himself, a person unpopular in many disqualify the directors' decision from protection under circles in Winston-Salem, North Carolina, the historic the business judgment rule. In that case, the directors site of the company's tobacco operations. Three years would have pursued the transaction for a reason un­ prior to the buyout, the R.J. Reynolds Tobacco Com­ related to the corporation's best interests, even though pany had merged with Nabisco. 86 Mr. Johnson, who the directors themselves did not benefit fmancially came from Nabisco, decided that the company should from opposing the corporation's interests. As the court move its headquarters from Winston-Salem to Atlanta, noted, "[g]reed is not the only human emotion that describing Winston-Salem as unduly "bucolic" for a can pull one from the path of propriety; so might cosmopolitan enterprise like RJR Nabisco. 87 In Winston­ hatred, lust, envy, revenge or, as it is here alleged, Salem, however, successive generations of people had shame or pride."98 worked in Reynolds's tobacco operations and, because One action that had a substantial effect on the of the company's generous stock purchase program transaction's outcome was the directors' decision to for its employees, individual residents and local insti­ disclose Mr. Johnson's proposal to the public on Octo­ tutions of that "bucolic" place owned about $2.5 bil­ ber 20. 99 Early disclosure enhanced the likelihood lion worth of RJR Nabisco stock at the time of the that competing bids would be made; indeed, KKR buyout. 88 Winston-Salem families had handed down armounced its first offer five days after RJR Nabisco the stock for generations, like heirlooms or home­ issued a press release armouncing that the manage­ steads, exhibiting an unusually emotional, personal­ ment group would offer $75 per share. loo Delaware ized tie to the company. 89 Winston-Salem, moreover, law probably did not require disclosure at that point: has been a quintessential "company town" for over Delaware courts have rejected shareholders' challenges one hundred years; in 1988, 15,000 of its residents still to LBOs that were not publicly armounced until after worked for RJR Nabisco. Even after KKR's assurances the directors and the acquiring entities had signed reduced local fears of job losses, employee-stockholders merger agreements. lOl For example, in In re Fort resented the large tax obligations they would incur Howard Corp. Shareholders Litigation, the Court of when they sold their shares. Although Mr. Johnson Chancery denied plaintiffs' motion for a preliminary initiated the events leading to the sale that made many injunction to prohibit the closing of a public tender employee-stockholders wealthy, they continued to offer that was the first move in a two-step LBO of Fort speak of him in highly unfavorable terms. 90 As one Howard. 102 A special committee of Fort Howard's di­ tobacco worker, interviewed by National Public Radio, rectors had signed a merger agreement with the finan­ said of Mr. Johnson's era of management: "it's not a cial partner in the LBO without conducting an auction home town crowd any more."9l Many Winston-Salem of any sort, public or private. 103 The merger agree­ residents seemed ambivalent at best about the LBO. ment, however, contained provisiOns permitting the The irreparable change to long-settled local practices, committee, during a period of thirty business days coupled with the widespread perception that the initial following the deal's public armouncement, to nego­ management bid was an attempt to buy the company tiate with or provide information to any other potential on the cheap,92 outweighed (or at least accompanied) acquirer. 104 One distinction between the Fort Howard residents' satisfaction with their enhanced individual and RJR Nabisco LBOs is the relative magnitude of wealth. 93 the two transactions: the Fort Howard LBO carried Indeed, Delaware's chancery court94 eventually a price of $3.7 billion,t°5 not an insubstantial amount considered the possibility that RJR Nabisco's directors by most measures, but one dwarfed by the $25 bil­ endorsed the KKR proposal in order to repudiate Mr. lion price of the RJR Nabisco LBO. Even though the Johnson publicly. Actions brought on behalf of RJR Delaware cases to date do not require directors to Nabisco's shareholders challenged the directors' deci­ conduct an auction in response to a proposal for such sion to accept the KKR proposal, after receiving sub­ a large transaction, the determination whether to pur­ stantially equivalent bids, rather than again asking the sue the auction route seems well within the range contestants if they wished to increase their bids. 95 The of decisions protected by the business judgment rule. DUKE LAW MAGAZINE I 18

It is telling that the Federal Reserve fell in the fourth quarter of 1988, while competitor Board} and not the Securities and Phillip Morris's profit margin rose. 111 And RJR's best­ Exchange Commission} is the federal known new product in recent years, the expensively developed "smokeless cigarette" called Premier, was a regulatory body most closely watched failure. 112 Premier cost 25% to 30% more than ordi­ in the policy debate over LBOs. nary cigarettes, but consumers in test markets disliked its taste and the feel of its part-aluminum holder. 113 On February 28, 1989, RJR Nabisco announced the Thus, the special committee's disclosure of the termination of Premier's market testing and indicated management bid, the price disparity between initial that it had no immediate plans of reintroducing Premier bids, and, arguably, Mr. Johnson's local unpopularity or anything like it.114 The Premier venture was not led to the unusual result of a management group losing cheap; KKR reportedly told its bankers that, prior to an auction for a company, even when that group's bid the LBO, RJR Nabisco's management had planned capi­ was substantially equivalent to the competitor's bid. tal expenditures of $80 million on Premier in 1989115 and had budgeted an operating loss on Premier of The Value Discrepancy $100 million.116 Another startling fact about the RJR Nabisco trans­ Like many companies that have restructured through action, along with others like it, is the enormous dis­ buyouts or leveraged recapitalizations, RJR Nabisco crepancy between the company's value as realized in had a strong cash flow (that is, cash revenues and in­ the LBO and its value as reflected in the price of shares flows in excess of the cash outflows needed to oper­ traded on the New York Stock Exchange prior to the ate its present businesses). KKR disclosed that RJR announcement of management's buyout proposal. has a projected 1989 cash flow of $4.5 billion, a finan­ How can one best explain this discrepancy in value? ial condition that, if it continues, can easily service Given RJR Nabisco's size, no one factor is likely to and retire debt from the LBO.ll7 Another common suffice. Some observers took management's proposal explanation for the premiums paid for companies like as an admission that the merger three years earlier RJR Nabisco is improvement in the corporation's brand between RJR, a tobacco company, and Nabisco, a food management-selling more Oreos, Winstons, Milk­ company, had failed to produce its expected return Bones, and other products through better marketing. 118 for shareholders. l06 To be sure, the operational rela­ Moreover, after a buyout, the relationship between tionships between manufacturing and selling tobacco, a company's senior managers and their financial part­ on the one hand, and food products, on the other, ner in a transaction (e.g., KKR) will differ from the are not obvious. However, in light of KKR's apparent prior relationship between senior management and willingness to retain all of the company's tobacco oper­ the company's public shareholders. Share ownership ations and much of its food business, one would be and managerial control are no longer divided, and mistaken to attribute much of the incremental value management becomes subject to more focused and realized by this transaction to an expected disaggrega­ immediate financial accountability.119 tion of mismatched operations. 107 Likewise, in evaluating Finally, but least disputably, debt-fmanced buyout competing LBO proposals, RJR Nabisco's directors transactions achieve significant tax savings derived were appalled at the extent and cost of incumbent principally from the tax deductibility of interest pay­ management's perquisites, including lodgings in Palm ments on debt. One recent study examined seventy­ Springs, California, and a large fleet of jets referred six MBOs in publicly held companies between 1980 to internally as the "RJR Air Force."108 However exces­ and 1986.120 The typical company in the sample paid sive these expenditures might appear, the opportunity almost no federal taxes in its first two years after the to eliminate them does not add up to a $12 billion buyout. 121 Even after the Tax Reform Act of 1986, premium. which eliminated one source of tax savings, buyout Other types of savings may provide a stronger activity continued at a high level. 122 explanation. KKR disclosed internal RJR Nabisco pro­ jections, obtained during the contest, that coupled The Legal Issues predictions of increased profit over the next ten years Like many other restructuring transactions, the with projections of an initial increase in capital spend­ RJR Nabisco transaction is striking because of the iden­ ing, from $1.1 billion in 1988 to $1.7 billion in 1989, tity of some of its participants and the sources of its followed by a decline in capital spending to $735 mil­ funding. KKR itself is an entity of relatively recent lion in 1998.109 Prior to the LBO contest, moreover, the origin, almost as recent a development as the market company's Nabisco operation lagged behind com­ for junk debt securities. 123 Large amounts of capital petitors in modernizing its facilities and reformulating have become available for debt financing, largely out­ its cookie and cracker products to replace lard and side established markets for public offerings of debt tropical oils with unsaturated fatS.IIO On the tobacco and equity securities. It is telling that the Federal Re­ front, the profit margin from RJR's cigarette operations serve Board, and not the Securities and Exchange Com- VOL. 8, NO. 1 I 19

Curiousl~ even after buyout trans­ group received tactical advantages not available to actions became common~ debtholders other bidders (including disclosure of another party's failed to bargain for greater contrac- bid). The Supreme Court held that the directors had tual protection against the financial failed to exercise their "active and direct duty of over­ sight," a failure that significantly contributed to the consequences of restructuring. mismanagement of the auction. 138 In recent years, Delaware law on directors' fidu­ ciary obligation to a corporation and its shareholders mission, is the federal regulatory body most closely has evolved to subject directors to affirmative duties, watched in the policy debate over LBOs.124 which directors can breach even if they act disinter­ One element missing in the RJR Nabisco scenario, estedly. To this extent, directors as fiduciaries resemble but present in many recent contests for corporate other types of fiduciaries, like trustees and guardians, control is a "poison pill," that is securities or rights whose positions are conventionally held to impart to purchase securities designed to deter hostile bids. affirmative obligations. In Smith v. Van Gorkom, a Litigation challenging target directors' refusal to re­ 1985 case involving a proposed cash-out merger, the deem a pill has produced a sizable body of Delaware Delaware Supreme Court interpreted the directors' duty jurisprudence12s but no set of clear operational rules 126 of care to require that "directors inform themselves covering all circumstances. Individual cases apply as to all information that was reasonably available to loose criteria like "reasonableness" and "proportion­ them," including the basis on which an acquisition ality," stressing all the while that such determinations price was computed. 139 Later in 1985, the Delaware are highly fact-specific. 127 Even cases that clarify the Supreme Court held in Unocal Corp. v. Mesa Petro­ law in one respect engender grounds for factual in­ leum Co. that directors confronted with a takeover quiries about new issues in subsequent cases. 128 bid had an obligation to determine whether the bid Poison pills are not, of course, the only area of was in the best interests of the corporation and its development in Delaware law at the moment. The shareholders.140 Directors also have a related obligation applicable standard for directors' decisions to end an to protect the corporation and its shareholders "from auction is also uncertain. In shareholder litigation chal­ perceived harm whether a threat originates from third lenging such a decision in the context of the RJR Na­ parties or other shareholders."141 Indeed, the Unocal bisco transaction, the chancery court acknowledged court observed that directors have a duty to "ensure that the precise nature of the directors' duty in the 129 that the minority stockholders receive equal value for auction context is unresolved. One might view that their shares," at least when an offeror proposes a trans­ duty as an extension or application of the directors' action that compels an exchange of some shares for general duty to act in good faith, with loyalty, and with 142 130 junk debt. Under Unocal, the directors' duty to pro­ due care. An alternative view is that the directors' tect requires that protective means be "reasonable" duty in the auction setting, distinct from their general or proportional to the threat. 143 In Mills, the Delaware duty to act in good faith and with due care, amounts 131 Supreme Court expressly made this standard applicable to a duty to conduct a fair or effective auction. to directors' decisions during an auction.144 Finally, Under the first view, a court examines whether the directors in particular circumstances may come under directors acted with due care and in a good faith ef­ an affirmative duty to redeem a poison pill.14s fort to achieve an appropriate objective.132 Under the This judicial invigoration of the director's role is alternative view, which operates like a form of strict relatively recent. In 1968, a leading academic wrote liability, the court examines whether, after the fact and that he was "very skeptical of the proposition that without regard to the board's good faith, the auction 133 directors of industrial corporations run any substantial was fair or, perhaps, effective. In its May 1989 opin­ risk of liability for ordinary negligence," uncomplicated ion in Mills Acquisition Co. v. Macmillan, Inc., the by self-dealing. 146 To be sure, it is awkward at best to Delaware Supreme Court characterized these apparent characterize the more recently enunciated duties as divergences as "more a matter of semantics than sub­ an obligation not to be negligent,147 and only slightly stance."134 The court held in Mills that directors' deci­ less awkward to treat them as particular manifesta­ sions incident to conducting and concluding an auction tions of the directors' obligation to act with due care. should have as their "primary objective, and essential purpose, . . . the enhancement of the bidding process for the benefit of the stockholders."135 Directors who Non-management employees~ like the treat bidders unequally must establish that they had a rational basis for the action, founded in the share­ local community in which the firm holders' interests,136 and that their actions were rea­ operates~ sonable in relation to the end sought.137 The facts re­ may be injured in the after­ viewed in the Mills opinion illustrated a flawed bidding math of restructuring. process in which a management-sponsored bidding DUKE LAW MAGAZINE / 20

Both formulations---":'avoid negligence" and "use due Startling changes in finanCial practices care'~address how directors discharge their duties, and not the affirmative content of those duties. have occurred in a relatively short Consider, in contrast, the legal position of a trustee. Period of tim~ and the consequences In addition to a duty of loyalty, which requires a trustee to administer a trust solely in the beneficiary's inter­ of those changes are not confined to est,148 and a duty to use skill and care in doing SO,149 the denizens offinancial institutions. the trustee has many affirmative duties. For example, the trustee must, using reasonable skill and care, pre­ serve the trust property. 150 If the trust has two or more ing, the company had during the past three years is­ beneficiaries, the trustee must deal impartially with sued almost $500 million in Swiss-franc-denominated all of them. 151 Moreover, if the trustee can reasonably bonds that gave holders the right to redeem the bonds perform her duties personally, she may not delegate at initial face value in the event of a corporate reorgani­ them. 152 Directors, of course, are not entirely like zation. 159 Two underwriters of the Swiss franc bonds, trustees in their legal obligations,153 but the recent citing stringent capital preservation norms in Swiss developments in Delaware law give directors affirma­ fiduciary law, threatened to force redemption unless tive duties like those applicable to trustees. In the midst KKR agreed to a satisfactory settlement with the bond­ of such evolution, it can be difficult to distinguish holders. 160 Thus, bondholders' vulnerability is far from between legal developments and legal uncertainty. inevitable. Sophisticated lenders, like the plaintiffs in One group that is expressly displeased with these the actions against RJR NabisCO, do not present an transactions, and with directors' role in them, is com­ urgent case for affirmative legal intervention when posed of holders of the target company's debt securi­ risks which they foresaw in fact materialize. ties issued prior to the buyout. In any restructuring, present equityholders receive a bonus financed by Conclusion substantial borrowing. This additional debt reduces Restructuring, nonetheless, both embodies and the market value of the company's preexisting debt provokes profound change. Long-held assumptions securities. The RJR Nabisco transaction led to litiga­ about management's preferences for stability and asset tion against RJR Nabisco, KKR and F. Ross Johnson; growth funded by retained earnings have become in­ two insurance companies that held RJR Nabisco's senior accurate, destabilizing the relationships premised on debt securities sued, alleging fraud and breach of an them. More generally, as one commentator observes, implied covenant of good faith and fair dealing. 154 the "restructuring movement presupposes diminished The federal district court granted the defendant's mo­ relational solidarity."161 In this view, F. Ross Johnson tion to dismiss the implied covenant claim, observing might not be a villain, but his obvious pursuit of a that the plaintiffs argued for a sort of "unbounded self-serving agenda defeated others' expectations, ex­ and one-sided elasticity" that would "interfere with pectations that were real although not captured in and destabilize the market."155 Express provisions in expliCit contract terms. The question of the appro­ the RJR Nabisco indentures, in the court's view, clearly priate legal response to claims that such expectations authorized the buyout transaction: the indentures' have been disappointed is a difficult one. Is a public­ terms contemplated the possibility of a merger and law response appropriate? If so, on behalf of what permitted RJR Nabisco to incur additional debt. 156 categories of claimants, and on what terms? Should Curiously, even after buyout transactions became the law leave parties to anticipate and allocate the common, debtholders failed to bargain for greater con­ risks associated with corporate restructuring and tractual protection against the fmancial consequences to establish appropriate contracts? of restructuring. In the mid-1970s, new unsecured Other, less sophisticated, constituencies are in­ public debt of large industrial corporations ceased evitably affected by these transactions as well. Non­ to contain covenants restricting issuers' ability to incur management employees, like the local community in additional debt and distribute assets to equityholders. 157 which the firm operates, may be injured in the after­ Metropolitan Life, which sued RJR Nabisco, consid­ math of restructuring. 162 In the wake of the buyout, ered pressing for protective covenants but concluded RJR Nabisco ceased work on Premier, the smokeless it might well encounter Significant resistance from pub­ Cigarette, as noted above. In September 1989 it an­ lic companies, placing it as a lender in the pOSition nounced plans sharply to cut cigarette shipments in of trying to impose a "non-standard limitation on po­ order to curb excess inventories. 163 The same month tential borrowers" in a highly competitive market. 158 RJR Nabisco announced plans to sell its Del Monte This situation raises the important question of what canned-food business, having already contracted to limits the law may appropriately impose on issuers' sell Del Monte's tropical fruit unit. 164 These announced behavior that harms creditors who could (at least sales followed the sale in June of five European food in theory) have protected themselves by contract. businesses for $2.5 billion. 165 By the end of Though the bulk of RJR Nabisco's bonds contained September, 300 headquarters employees had been no restrictions addressed to the risk of a restructur- discharged, along with 1,640 employees in tobacco VOL. 8, NO.1 I 21

operations. 166 RJR Nabisco's long-established reputation 9. Buyout SpeCialist Bids 120.3 Billion for RjR Nabisco, supra as a stable and generous employer makes it less likely n.5, at AI , col. 6. that its non-management employees would anticipate 1O . ld. H. Id. at 06, col. 6. the prospect of buyout-induced disruptions. On the 12 . ld. other hand, RJR's friendly merger with Nabisco, four 13. Id. The Beatrice transaction produced an antitrust obstacle to years prior to the buyout, itself produced enormous the RJR Nabisco deal, which was eventually resolved. Through Beatrice, KKR controlled brands that competed with RJR Nabisco brands. KKR upheaval, as Nabisco's (and F. Ross Johnson's) faster­ announced at the end of January that it had reached an agreement paced management culture invaded RJR's more placid with the staff of the Federal Trade Commission to sell either RJR or environment. 167 At some point, perhaps, the inevi­ Beatrice brands to eliminate overlaps, specifically those in Chinese foods, soy sauce, packaged nuts, and ketchup. Smith & Waldman, tability of change itself becomes foreseeable to all. Buy-Out of RjR Proceeds as Financing Is Expanded, Antitrust Pact Financially speaking, we have sailed to Byzantium.168 Is Reached, Wall St. ]., Jan. 31 , 1989, at A3, col. 2, cols. 2-3 . Startling changes in fmancial practices have occurred 14 . Buyout Specialist Bids 120.3 Billion for RjR Nabisco, supra n.5 , at 06, col. 6. in a relatively short period of time, and the conse­ 15 . MeSSineo, Proposed SEC Rules May Impact LBO Funds, New quences of those changes are not confmed to the York L.J ., Sept. 21 , 1989, at 5, col. I. denizens of financial institutions. In September 1989 16. Bartlett, A Corporate Milestone, NY. Times, Oct. 26, 1988, at AI , col. 4, 06, col. 5. prices in the junk bond market plummetted and yields 17. See, e.g. , C. BRUCK, THE PREDATORS ' BALL 344-50 (1988). leapt following the near-collapse of the highly-leveraged 18 . See Cohen, Criminal Charges Filed Against Drexel Indicate retailing empire of Campeau Corporation.169 In this Alleged Wrongdoing by Milken, Wall St. J., Jan. 25, 1989, at A4 , col. 2. 19 . Sterngold,Joint Deal for Nabisco Is Rejected, N.Y. Times, Oct. environment, RJR-Nabisco's bonds were said to epito­ 27, 1988, at DI, col. 6, col. 6. mize "quality junk." 170 Beyond the junk bond market 20. Burrough & Helyar, RjR May Get a Third Offer, Topping Others, itself-whose immediate effects are limited to market Wall St.]., Nov. 7, 1988, at A3 , col. 1, col. 2. 21. Sterngold, supra n.19, at DI , col. 6. participants-future transactions requiring junk bond 22 . Wallace, Several Giant Pension Funds Investing in Offer for fmancing may receive closer and more conservative Nabisco, NY. Times, Oct. 31 , 1988, at AI, col. 5, 05, col. I. assessment from prospective lenders. And defaults 23 . Id. at AI , col. 5 (Coca-Cola Company and Georgia-Pacific Corporation). among junk bond issuers, if they lead to further re­ 24. RjR Nabisco Stock Surges, NY. Times, Nov. 3, 1988, at 04, col. structurings, may have broad consequences. Thus, it 4, col. 4. is yet to be seen whether a fmancial Byzantium will 25. Sterngold, Nabisco Officials Weigh Suit to Block a Bid, NY. Times, Nov. 7, 1988, at DI, col. 3, col. 3. prove stable and desirable in the long run. 26. Id. at DI , col. 4. 27. Id. at 014, col. 4. "Pre-sold" assets are those committed to purchasers before a putative seller acquires the entity that owns the I. See generally L. LOWENSTEIN, WHAT'S WRONG WITH WALL assets. STREET: SHORT-TERM GAIN AND THE ABSENTEE SHAREHOLDER 28. ld. 57-63 (1988) (describing the institutionalizatio n of stock markets and 29. Sterngold, Forstmann Declines to Bid on RjR NabiSCO , NY. its consequences). Times, Nov. 17, 1988, at DI, col. 3. 2. Helyar & Burrough, Nobody's Tool: RjR Nabisco Board Asserts 30. Sterngold, supra n.4, at 05, col. 3. Indep endence in Buy -Out Decisions, Wall St.]., Nov. 9, 1988, at AI , 31. Sterngold, supra n.25 , at DI4, col. 4. col. 1, col. I. 32. Sterngold, RjR Nabisco Discloses Guidelines for Its Buyout, 3. Id. (quoting outside director). NY. Times, Nov. 9, 1988, at 06, col. 3, cols. 3-4. 4. Sterngold, Managers ' Huge Stake in a Private NabisCO , NY. 33. Sterngold, supra n.4, at 05, col. 4. Times, Nov. 14, 1988, at DI, col. 3, 05, col. 2. 34. ld. 5. Sterngold, Shearson Risks, Rewards on RjR Nabisco, N.Y. Times, 35. ld. Oct. 22 , 1988, at 33, col. 3, col. 3; Sterngold, Buyout Specialist Bids 36. Sterngold, supra n.32, at 06, col. 3, cols. 3-4. 120.3 Billion for RjR Nabisco, N.Y. Times, Oct. 25,1988, at AI, col. 37. Id. at 06, col. 4. 6, col. 6 [hereinafter Buyout Specialist Bids 120.3 Billion for RjR 38. ld. Nabisco] . 39. Sterngold, supra n .8, at DI5 , cols. 2-3. 6. Gilpin, Bidfor RjR Nabiscojolts Bonds, NY. Times, Oct. 21 , 40. ld. 1988, at OH , col. 1, col. I. 41. Id. at DI5, col. 3. 7. Id. (quoting senior bond trader). 42 . Sterngold, Tax Hurdles Seen on Bid to RjR Nabisco, NY. Times, 8. Wallace, Nabisco Sued over Bond Drop, NY. Times, Nov. 18, Nov. 22 , 1988, at DI, col. 6, col. 6. 1988, at 03, col. 4, col. 4. 43. ld. As it happens, KKR had discussed a buyout with Mr. Johnson in 44. Sterngold, supra n .29, at DI5, col. I. September 1987, thirteen months before Johnson's own proposal 45. Id. at DI, col. 6, 08, cols. 3-4. surfaced. Sterngold, The Nabisco Battle's Key Moment, NY. Times, 46. Id. at 08, col. 4. Dec. 2, 1988, at 015, col. 1, col. 2; cf. In re RJR Nabisco, Inc. Share­ 47. Sterngold, RjR Nabisco Suitor Claims $24.88 Billion Victory , holders Litig., [1988-1989 Transfer Binder] Fed. Sec. L. Rep. (CCH) NY. Times, Dec. 1, 1988, at AI , col. 2, col. 2, 08, col. I. 194,194, at 91,703 (Del. Ch. Jan. 31 , 1989) (KKR was purportedly earlier 48. Id. at 08, col. I. rebuffed in an effort to entice management to join in an LBO). In a 49.ld. court filing, Mr. Johnson acknowledged that six months prior to his 50. Id. at 08, col. 2. announced buyout proposal, a large shareholder approached him 51. In re RJR NabiSCO, Inc. Shareholders Litig. , [1988-1989 Transfer with an offer to buy the company. Durham (N.C.) Morning Herald, Binder] Fed. Sec. L. Rep. (CCH) 1 94,194 , at 91 ,704 (Del. Ch. Jan. 31 , Jan. 22 , 1989, at Bl , col. 3, col. 3. The shareholder, C.O. Spangler, Jr., 1989). owned less than 1% of RJR Nabisco's stock through family-held cor­ 52 . Id. at 91, 706. porations. Id. at Bl, col. I. Mr. Spangler, the president of the Univer­ 53. See id. sity of North Carolina, is also a director of Jefferson Pilot Corp. , an 54. Id. at 91 ,707. insurance company that is suing RJR Nabisco over the devaluation 55 . See id. of RJR Nabisco bonds it purchased prior to the LBO. Id. at Bl, cols. 56. Sterngold, supra n.47, at 08, col. 4. 3-4. Cf. Metropolitan Life Ins. Co. v. RJR Nabisco, Inc., 716 F. Supp. 57. In re RjR Nabisco, [1988-1989 Transfer Binder] Fed. Sec. L. 1504, 1523-24 n . 32 (S .O.N.Y. 1989) (director Spangler apparently never Rep. (CCH) at 91,706. disclosed fact of unsolicited bid to fellow directors of Jefferson-Pilot). 58. Id. at 91 ,706-07. DUKE LAW MAGAZINE I 22

59. Id. at 91,705. Times, Dec. 5, 1988, at AI , col. 2, OS , cols. 1-2 . 60. See id. at 91 ,708. 84. Sterngold, supra n.83, at OS , col. 2. 6 1. Helyar & Burrough, How Underdog KKR Won RjR Nabisco 85 . Id. at OS , col. 6. Without Highest Bid, Wall St. J., Dec. 2, 1988, at AI , col. 6, All , col. 6. 86. Sterngold, supra n.4, at OS, col. 1. 62. Cowan, Banks to Get Steep Fees in Nabisco Deal, N.Y. Times, 87. See All Things Considered: Winston-Salem (NPR broadcast, Dec. 20, 1988, at OS , col. 4. Dec. 12, 1988) (tape on file with author). 63. Sanger, Kohlberg, Kravis Seeksjapan's Help on Nabisco, N.Y. 88. Id. Times, Dec. 22 , 1988, at 02, col. 5, col. 5. 89. Id. 64. Cowan, Efforts Begin to Rebuild Nabisco 's Morale, N.Y. Times, 90. Id. (One employee described Johnson's initial bid as an Dec. 3, 1988, at 35, col. 3, 37, col. 4. attempt to "steal the company.") 6 5.Id. 91. Id. 66. Smith, RjR Buy -Out by KKR Clears Hurdle as 114 Billion of 92 . During the buyout contest, the following song, created by Bank Loans Are Set, Wall St. J., Jan. 18, 1989, at A3 , col. I, col. l. a local radio station's morning disc jockeys and sung to the tune of 67. Id. at A3 , col. 2. Santa Claus Is Coming to Town , proved popular: 68. Smith & Waldman, supra n.13, at A3 , col. 2. You better watch out, 69. Although such fees are not unusual in private placements of You better pay heed, bonds, fees for buying junior notes were novel to this transaction. See We're all going to be the victims of greed, Smith, How Drexel Overcame Big Hurdles in Selling junk Issuefor F. Ross Johnson's not coming to town. KKR, Wall St. J., Mar. 3, 1989, at AI , col. 7, A7, col. 3. Like the com­ Id. mitment fees paid to bank lenders, see infra text accompanying n.76, 93. In the same vein, a local journalist observed: "We have seen the junior note buyers' fee percentage scaled upward with the amount the future and didn't even get its license number." The RjR Shuffle, of debt purchased. Id. The Independent (Durham, N.C.), Dec. 16, 1988, at 3, col. 2, col. 3. 70. Smith, KKR to Receive 175 Million Fee in RjR Buy-Out, Wall 94. Despite strong ties to North Carolina, RJR Nabisco is a Delaware St. J., Feb. 1, 1989, at A6 , col. I, co. l. corporation. 71. Id. For example, in 1986, KKR received a fee of 145 million for 95 . See In re RJR Nabisco, Inc. Shareholders Litig. , [1988-1989 the S6.2 billion management buyout of Beatrice Companies. Id. ; see Transfer Binder] Fed. Sec. L. Rep. (CCH) 94,194, at 91,700 (Del. Ch. also Williams, King of the Buyouts Kohlberg Kravis Helps Alter Cor­ Jan. 31 , 1989). A shareholder action brought in New York alleged that p orate U s. , Wall St. J., Apr. 11 , 1986, at AI , col. 4. negligent advice from the investment banks advising the special com­ 72. Smith & Waldman, supra n.13, at A12 , col. 2. mittee caused it to terminate the auction prematurely and accept an 73 .Id. inferior bid. See Schneider v. Lazard Freres & Co., No. 09905/89, slip 74. Sterngold, Talking Deals: A Feeding Frenzy on Nabisco Fees, op. (N .Y. Sup. Ct. Aug. 16, 1989). In September 1989, the supreme court N.Y. Times, Nov. 10, 1988, at 02, col. I, col. l. denied the defendants' motion to dismiss, which relied on their lack 75. Law firms involved in the RJR deal will receive more than $60 of contractual privity with RJR-Nabisco's shareholders. In an earlier million in fees. Sontag, 160 Million in Fees , Nat'l L.J ., Dec. 19, 1988, case, the appellate division held that an investment bank could be at 2, col. 1. The transaction used the services of 200 lawyers from at liable to shareholders for negligent or wrongful preparation of a fair­ least 10 law firms, who represented bidders, investors, and sundry ness opinion if the bank knew the opinion would be used by share­ banks, and reportedly billed at premium rates for furnishing round­ holders in assessing the fairness of the offer to buy their shares. See the-clock service in a high-pressure atmosphere. Id. Transactions in Wells v. Shearson Lehman/American Express, Inc., 127 A.D.2d 200, 514 the wake of the LBO, like the formal tender offer to RJR Nabisco share­ N.Y.S.2d I (1987), rev'd on other grounds, 72 N.Y.2d II, 530 N.Y.S.2d holders and asset sales, along with litigation, will also require lawyers' 517, 526 N.E.2d 8 (1988). The investment banks advising RJR-Nabisco's services. Id.; see also For Further Details, See Carton No. 587, Wall special committee argued in their appeal (yet to be decided) that giving St.]., Mar. IS , 1989, at B1 , col. I, col. 1 (reporting that over the Christ­ advice to a board committee differed from giving assistance more di­ mas holiday, KKR employed 150 attorneys from Latham & Watkins, rectly to shareholders through a fairness opinion. See Franklin, On Los Angeles, to compile 680 cartons of documents in response to an Shaky Ground, N.Y.L.J., Oct. 5, 1989, at 5. FTC request for information, which required a DC-9 jet for shipping 96. Id. at 91,702,91,710-13. data to Washington). Lawyers and support staffs working on such 97. Id. at 91,703,91,710-14 . large transactions seem to have problems handling the numbers in­ 98. Id. at 91 ,711. volved. The lawyer for one RJR Nabisco bidder reported: · ~s we kept 99. See Helyar, RjR Nabisco Buy-Out Would Fit the Pattern of typing letters, the last three zeros occasionally dropped out ... [p ]eople a Restless Chief, Wall St. J. , Oct. 21, 1988, at AI, col. 6, col. 6. were not used to typing billions." Sontag, LBOs Put New Focus on the 100. See Buyout Specialist Bids 120.3 Billion for RjR Nabisco, Bar, Nat'l L.]., Dec. 19, 1988, at I, col. 4, 20, col. 3 (quoting First supra n.5, at AI , col. 6. Boston's attorney). 101. See, e.g. , In re Fort Howard Corp. Shareholders Litig., No. 76. Cowan, supra n.62 , at OS , col. 4. 9991 , slip op. (Del. Ch. Aug. 8, 1988) (Westlaw, 1988 WL 83147). 77. Economists predicted that completing the transaction, which 102 . Id., slip op. at 52 . entailed the transfer to KKR of S18.9 billion from banks as well as 103 . Id., slip op. at 21. KKR's purchase of 74 % of RJR Nabisco's shares, would cause a "blip" 104 . See id., slip op. at 19 . in U.S. money supply statistics. Anders, RjR Finale Will Send Money 105 . Id. slip op. at 3. Coursing, Wall St. J., Feb. 9, 1989, at C1 , col. 3. 106. See, e.g. , Sterngold, supra n.4, at OS, col. I ("In effect, Mr. 78. Cf In re RJR Nabisco, Inc. Shareholders Litig. , [1988-1989 Johnson was admitting that the merger . .. failed to produce the Transfer Binder] Fed. Sec. L. Rep. (CCH) 1 94,194, at 91 ,713 (Del. Ch. expected return for shareholders."). Jan. 31 , 1989) (holding that directors' preference for KKR proposal 107. Another possibility is that the stock of a company with a track was not "so beyond the bounds of reasonable judgment as to raise record of unsuccessful acquisitions trades at a discount from the com­ an interference of bad faith"). pany's asset value, in part because investors believe that the company's 79. Cowan, Losers Get Some Spoils in Fightfor RjR Nabisco, N.Y. management will continue to use its earnings or other funds to make Times, Dec. 2, 1988, at 014, col. 5, col. 5. unsuccessful investments. An LBO can "capture" this discount. For 80. See supra nn.39-41 and accompanying text. a full explication of this argument, see Black, Bidder Overpayment 81. Coffee, Proportionality after Pillsbury: The 'New ' Delaware in Takeovers, 41 STAN . L. REV. 597, 635 (1989). Common Law on Defensive Tactics, I MERGERS & ACQUISITIONS L. 108. Helyar & Burrough, supra n.61 , at All, col. l. REP 981 , 989 (1989) . 109. Smith, Investment Bankers Should Get at Least 1386.3 Mil­ 82 . Id. Cf TW Services, Inc. Shareholders Litig., [Current] Fed. lion in RjR Nabisco Buy-Out, Wall St. J., Dec. 8, 1988, at A4, col. 2, Sec. L. Rep. 194,334, at 92,177 (Del. Ch. , Mar. 2, 1989) (hostile bidder col. 4. claimed to have waived condition in bid requiring offer to be approved 110. Waldman, KKR Girds for Tricky rurns in Buy-Out, Wall St . by target's board; bidder asserted waiver would cause it to incur an J., Feb. I, 1989, at A6, col. I, col. 1. In March 1989, Nabisco Brands, additional 13.6 million in financing costs if tender offer were to be Inc., announced that, although it had no target date for removing consummated and 13 .75 million in non-refundable fees if offer not saturated fats from its products, it would attempt to do so as quickly co nsummated). as possible. Unit Says Many Products Are Free of Tropical OilS, Wall 83 . Sterngold, Nabisco Battle Redefines Directors ' Role, N.Y. St . ]., Mar. 6, 1989, at B5, col. 5. Nabisco reported that only four to VOL. 8, NO.1 I 23

six of its products still contained tropical oils, while about 60 still Litig., [1988-1989 Transfer Binder] Fed. Sec. L. Rep. (CCH), 94,181, at contained lard. Id. 91,644 (Del. Ch. Dec. 30, 1988) ("Even if the Board thought it was 111. Unit Says Many Products Are Free of Tropical Oils, Wall St. acting in good faith, the sale process itself was so substantially flawed J. , Mar. 6, 1989, at B5 , col. 5. that the Board's actions, considering all the facts and circumstances, 112 . Waldman, supra n.ll0, at A6, col. 4. were not likely to have maximized the value of the corporation for its 113. Waldman & MorriS, RJR Nabisco Abandons "Smokeless " shareholders and, therefore, its actions cannot be viewed as being Cigarette, Wall St.]., Mar. 1, 1989, at Bl, col. 3, col. 5. rationaL"). 114 . Id. at Bl, col. 3. 132. See In re RJR Nabisco, [1988-1989 Transfer Binder] Fed. Sec. 115 . Id. at Bl, col. 4. The S80 million capital spending on Premier L. Rep. (CCH) at 91 ,714-15 . that RJR Nabisco planned for 1989 amounted to 4.7% of total capital 133. See id. at 91 ,714. Even if an "effective" auction is required, spending planned for that year ($1. 7 billion). See supra text accom­ the court held that boards need not conduct perfect auctions to escape panying n.109. liability. Id. at 91,715 . 116. Waldman & Morris, supra n.113 , at Bl, col. 4. 134 . 559 A.2d 1261 , 1288 (Del. 1988). 117. White, KKR Tells Its Partners RJR Is a Bargain But Gives 135 . Id. at 1287. Them Few Numbers to Prove It, Wall St. ]., Dec. 5, 1988, at A4, col. 2, 136.Id. col. 3. 137. Id. at 1287-88. 118. See The It'ar of the Brand, The Economist, Dec. 24, 1988, at 138. Id. at 1281. 95. Especially in the food industry, which has in recent years become 139. 488 A.2d 858, 877 (Del. 1985). more product-competitive than price-competitive, capturing strong 140. 493 A.2d 946,954 (Del. 1985). For diSCUSSions of the potential brands assures shelf space in retail food stores and thus market share. significance of Unocal, see Coffee, supra n.81; Gilson & Kraakman, See Cheese Whizz, The Economist, Oct. 22, 1988, at 74, 75. Delaware's Intermediate Standard for Defensive Tactics: Is There 119 . See Waldman, New RJR Chief Faces a Daunting Challenge at Substance to Proportionality Review?, 44 BUS. LAW 247 (1989). Debt-Heavy Firm, Wall St. J., Mar. 14, 1989, at AI, col. 6. 141. 493 A.2d at 955. 120. Kaplan, Management Buyouts: Evidence on Taxes as a Source 142. Id. at 957. of Value, 44 J. FIN. 611 (1989). 143. Id. at 955. 121. Id. at 628-30. 144 . 559 A.2d at 1287. 122. Id. at 631. In particular, the Tax Reform Act eliminated the 145 . See n. 125 supra. possibility of stepping-up the basis of the assets of the buyout com­ 146. Bishop, Sitting Ducks and Decoy Ducks: New Trends in the pany from their pre-buyout tax basis to their appraised fair market Indemnification of Corporate Directors and Officers, 77 YALE L.J . value. The step-up would yield higher deductions for asset depre­ 1078, 1101 (1986). ciation. See id. at 619-22. 147. But see Smith v. Van Gorkom, 488 A.2d 858, 873 (Del. 1985) 123. See generally Loomis, Buyout Kings, Fortune, July 4, 1988, (holding that "concept of gross negligence" is applicable test to deter­ at 52 (discussing KKR's origins and operations). mine whether directors' business judgment was informed). 124 . See Man Of the New Year, The Economist, Jan. 7, 1989, at 13 , 148. RESTATEMENT (SECOND) OF TRUSTS § 170(1) (1959). 14 ("For the Fed, the S&L's and the LBOs make an ironic couple of 149. Id. § 174. concerns."). In March 1989 the SEC proposed amendments to the 150. Id. § 176. disclosure schedules filed under the Williams Act that would increase 151. Id. § 183 . the disclosure obligations of LBO funds. See SEC ReI. 34-26599, 54 152. Id. § 171. Fed. Reg. 16360 (Mar. 6, 1989). The amendments require responses 153. See, e.g. , DeMott, Beyond Metaphor: An Analysis of Fidu­ to specified questions (concerning identity, background, funding and ciary Obligation, 1988 DUKE L.J. 879, 908-09, 909 n.l36; Marsh, Are purposes) of each person contributing 10 percent or more of the group's Directors Trustees? Conflict of Interest and Corporate Morality, 22 capital or entitled to 10 percent or more of its profits or assets upon BUS. LAW. 35 (1966). liquidation. See Messineo, supra n.l5. 154. 716 F. Supp. at 1507. 125 . See, e.g., TW Services, Inc. Shareholders Litig., [Current] Fed. 155. Id. at 1520. Sec. L. Rep. , 94,334 (Del. Ch., Mar. 2, 1989) (court declines to require 156. Id. at 1519. redemption of pill where bidder's tender offer was conditioned on 157. Bratton, Corporate Debt Relationships: Legal Theory in a approval of target's board); Grand Metropolitan PLC v. Pillsbury Co., Time of Restructuring, 1989 DUKE L.J. 92, 117. [1988-1989 Transfer Binder] Fed. Sec. L. Rep. , 94,104 (Del. Ch., Dec. 158. 716 F. Supp. at 1513 . 16, 1988) (court grants preliminary injunction requiring redemption 159. Winkler, 7Wo Underwriters Demand RJR Call Swiss Franc of pill; court finds retention of pill served no purpose other than pre­ Bonds, Wall St. ]., Feb. 7, 1989, at Cl, col. 5. venting shareholder from accepting fully-financed cash bid for all 160. Id. at C19, col. 5. In March, a Swiss court issued a temporary shares); City Capital Assocs. v. Interco, Inc., [1988-1989 Transfer Binder] order to block completion of the LBO. White, Swiss Court Seeks to Fed. Sec. L. Rep. , 94,084 (Del. Ch., Nov. 1, 1988) (court grants pre­ Halt Takeover of RJR Nabisco, Wall St.]., Mar. 23, 1989, at A19, col. 3. liminary injunction requiring redemption of pill; pill may not be used 161. Bratton, supra n.157, at 171. to frustrate shareholders' choice between board's proposed restruc­ 162. Macey, Externalities, Firm-Specific Capital Investments, and turing and bidder's cash offer for all shares). the Legal Treatment of Fundamental Corporate Changes, 1989 DUKE 126. See Yablon, POison Pills and Litigation Uncertainty, 1989 L.]. 173. DUKE L.J . 54, 73-81. 163. Waldman, RJR Tobacco Unit Set to Cut Its Shipments, Wall St. 127. Id. at 73 . ]., Sept. 22 , 1989, at A4, col. 1. 128. Id. at 78-80. 164. Smith, RJR Plans Sale of a Food Unit For 11.48 Billion, Wall 129. See In re RJR Nabisco Shareholders Litig. , [1988-1989 Transfer St. J. , Sept. 8, 1989, at A3 , col. 4. Binder] Fed. Sec. L. Rep. (CCH) , 94,194, at 91,714-15 (Del. Ch. Jan. 31, 165. Deutsch, RJR's Brave New World, N.Y. Times, Sept. 17, 1989, 1989). The chancery court attributed its uncertainty on this point to 3 (Business), at 1, col. 2. the limitations of the Supreme Court's bench ruling in a case about 166.Id. management's auction-related decisions, see Mills Acquisition Co. v. 167. Id. Macmillan, Inc., [1988-1989 Transfer Binder] Fed. Sec. L. Rep. (CCH) 168. Yeats, to be sure, was writing in an entirely different context, , 94,072, at 91,025 (Del. Ch. Nov. 2, 1988) (in auction for sale of cor­ see W. Yeats, Sailing to Byantium, in COLLECTED POEMS OF W.B. porate enterprise, there must be "the most scrupulous adherence to YEATS 217 (2d ed. 1952), but the first line of the poem ("[t]hat is no ordinary principles of fairness"), rev'd [Current Transfer Binder] id. country for old men," id.) seems highly descriptive of today's fast­ , 94,401, at 92 ,602 (Del. May 3, 1989). In re RJR Nabisco, [1988-1989 track corporate finance. Transfer Binder] Fed. Sec. L. Rep. (CCH) at 91 ,715 . 169. Being Scrapped, The Economist, Sept. 23, 1989. This collapse 130. See id.; accord In re].P. Stevens & Co. Shareholders Litig., was, in retrospect surely, no surprise. At the end of 1988, Campeau's 542 A.2d 770, 781-84 (Del. Ch. 1988) (auction does not require "level balance sheet showed S88 million in equity versus Sl1.4 billion in playing field" if directors act with care and in good faith pursuit of debt, S3 billion of that short-term debt. By late September, after re­ shareholders' interests). ports of an impending recapitalization, the yield on some Campeau 131. See In re RJR Nabisco, [1988-1989 Transfer Binder] Fed. Sec. debt isues rose to 32 % . See id. L. Rep. (CCH) at 91,714; accord In re Holly Farms Corp. Shareholders 170 . See id.

VOL. 8, NO.1 / 25

Financial Aid: An Investtnent in the Future

If a man empties his purse into his head, no one can take it from him; an invest­ ment in knowledge always pays the best interest. Benjamin Franklin (1706-1790)

The contemporary state of fi­ nancial aid to education may be far removed from Benjamin Franklin's world, but his sentiment certainly applies both to Duke Law School, which makes a significant invest­ ment in fmancial aid to its students, and to the law students themselves who invest not only their time but also considerable amounts of money towards their legal education. While at one time, fmancial aid to educa­ tion may have been a novel idea, in today's world, it is increasingly the norm. At Duke Law School, where tuition alone is over $14,000 this year, approximately sixty per­ cent of the students are currently receiving financial assistance in the form of either grants given or loans processed by the School, or both. The cost of legal education gen­ erally has risen dramatically in recent years with increasing costs and Duke's tuition has not been immune to such increases. Its tuition places it, along with other prestigious institu­ tions, among the ten most expensive private law schools in the country. Given the Law School's small en­ dowment, over eighty percent of its overall operating budget comes from tuition revenues. The Law School's expense budget is driven by three principal cost elements-instruction (consisting Mary T Hawkins, Financial Aid Counselor, assists students in financing their mainly of faculty salaries and ben­ legal education. efits), student fmancial assistance, DUKE LAW MAGAZINE I 26 and support of the Library. The por­ their fmances without assistance notes that "it is tough to keep the tion of the budget being spent on are asked to indicate that on the commitments for fmancial aid with­ scholarship assistance has risen sig­ form as well. This information allows in bounds as the admission process nificantly in recent years, necessi­ the School to know whether an 'rolls' along." In addition to the in­ tated in large part by the increases applicant wishes to be considered come information submitted by in tuition. The Law School presently for a grant, and, if so, on what basis. applicants, other factors that the returns approximately one quarter All admissions decisions, how­ Committee considers in making of its tuition revenues to students ever, are "aid-blind," according to awards are the individual's under­ in the form of fmancial aid. Clearly, Gwynn T. Swinson, Associate Dean graduate loan history, the number this is a significant investment of the of Admissions. Requests for financial of family members enrolled in col­ Law School's funds to its students. aid are not factored into the deci­ lege, and special circumstances. sion to grant or deny admission. Some scholarship funds are ear­ Deciding to Invest She stresses that "the fmancial in­ marked for those students who are A prospective student's elation formation is requested at the time most in need of financial assistance triggered by a letter of acceptance of application so that once a deci­ as demonstrated by the submission from Duke Law School is often cut sion to admit a candidate is made, of detailed reports to the School. short by the realization that accep­ the School can immediately begin Other awards are granted based on tance is actually an invitation to com­ the process of awarding scholar­ the "merit" of the applicant. Merit, mit at least $42,000 to the School ships. In this way we can in most for this purpose, is usually defmed over the next three years for tuition cases inform a student of his or her as extraordinary academic promise alone. For some students the im­ acceptance and, shortly thereafter, manifested by grades and test scores pending bill is not a major concern, let them know what money, if any, which are substantially above the but for others it becomes a con­ is available to them from Duke." class medians, and extraordinary siderable weight against which to Once a student has been admitted achievement or unusual experience balance the desire to attend Duke to the entering class, the process or background. The applicant's rec­ Law School. of considering fmancial aid begins. ommendations are examined closely. To enable students to attend The giving of merit scholarships Duke, the Law School offers fman­ Scholarships allows the Law School to compete cial assistance in three primary areas: When an offer of admission has both with other prestigious private scholarships and grants (both need been made, the file of each admittee law schools and with less expen­ and merit based), loans, and a loan requesting financial aid is reviewed sive public institutions in attracting repayment assistance program. The by the Scholarship Committee, which those students who reasonably can Law School also seeks to inform reviews the request for financial aid be expected to make significant con­ prospective students of programs and allocates scholarships and grants tributions to the community. As to help ease the financial burden based on consideration of both stated one current student put it, "I was of a legal education, assists them in need and merit. The Committee, going to Michigan, then when I securing such funds, and continues chaired by Dean Swinson, includes found out about the scholarship to counsel matriculated students three additional faculty members award I began to think very seri­ regarding fmancial management. (currently Professors Bill Reppy, Jeff ously about Duke." However, the During required entrance and exit Powell and Senior Associate Dean majority of scholarship awards are interviews, and on a continuing basis Bob Mosteller). Professor H. B. Rob­ based on a combination of both while enrolled, students receive ertson, who was a member of the need and merit considerations .. counseling on all aspects of their Committee for several years, applauds Because of the uniform high current indebtedness, their rights the role of the faculty members on quality of Duke's admitted applicants, as borrowers and the loan conditions the Committee. "Committee mem­ the Scholarship Committee must imposed by the various lenders, bership is very time consuming," make difficult choices in distributing as well as receiving detailed infor­ he says, but "faculty input [in this limited funds. "Service on the Schol­ mation as to repayment schedules area] is very important because of arship Committee is extremely labor­ upon graduation. the influence it has on the quality intensive," Dean Swinson notes. When applying for admission to of the student body." "Our faculty members put in long Duke Law School, each prospective Acceptances to the entering class hours reviewing the pertinent data, student must complete a fmancial go out on a "rolling" basis, and the and making considered decisions. aid statement as well as an applica­ Scholarship Committee also awards At many other law schools, faculty tion for admission. On this "yellow its funds in this manner. During the members are not nearly as involved form" an applicant notes whether spring semester, the Scholarship in the scholarship decision process. he or she is interested in fmancial Committee meets weekly, consider­ Our allocation process is really quite aid assistance and, if so, whether it ing requests of all accepted candi­ personal and individualized." would be based on need or merit. dates who ask for need or merit For each entering class, the Applicants who are able to manage based scholarships. Dean Mosteller Committee is given a total budget VOL. 8, NO.1 / 27

to a total grant to be disbursed over the student's first five semesters of law School. This schedule makes more money available early, when it is most needed before lucrative summer legal employment lessens the financial burden for most third­ year students. Duke imposes no academic performance requirements, other than remaining in good stand­ ing, in order to retain scholarship grants. "Our up-front guarantee," Dean Swinson states, "relieves the stress associated with the uncertainty as to whether the scholarship will be renewed and probably reduces cut-throat competition somewhat. Also, the long-term commitment allows students to make informed decisions as to whether Duke is affordable before making the com­ mitment to attend Duke." The drawback to the "front­ of scholarship money to allocate. North Carolina law firm of Robin­ loaded" disbursement of scholar­ This allocation is a combination son, Bradshaw & Hinson in memory ship funds is that almost no grant of funds from three sources-interest of a 1971 law alumnus. Students money is available to students whose from endowed scholarships, restricted from North and South Carolina are fmancial situations change after the gifts, and revenue from the general given preference for the Knight initial fmancial aid assessment. Only operating budget of the law School, Scholarships, and they maintain two scholarships are reserved for with the largest portion presently a personal relationship with Tena upper-class students. The School coming from the School's general Knight, widow of Jack Knight. Mrs. does, however, try to assist students operating revenue. Knight notes that, 'Jack's scholarship who are mced with unexpected finan­ The law School currently has was vital to his attending Duke law cial emergencies, and loan programs a number of endowed funds for stu­ School. . . . Meeting the students is are available to augment scholar­ dent scholarships. Most have been the best part of the scholarship for ship awards in certain situations. funded by, or in honor of, alumni me. The law that Jack Knight loved of the School, and some scholarship and to which he was so dedicated monies are received from charitable lives through these young scholars." Student Loans foundations or law firms. Vincent For many students the offer of While the law School makes L. Sgrosso '62, for example, sup­ a scholarship is one of the deciding its fmancial investment in students ports the Jenny Ferrara Scholarships factors in a decision to attend Duke through scholarship aid, a major named in honor of his grandmother. law School. "The scholarship really source of student fmancial invest­ "She was, during my law school differentiated Duke as a choice from ment in their own future comes experience, a great source of en­ a group of very fme law schools," through ever-increasing student loans. couragement not only to me, but notes Ron Krotozynski '91. "The The investment is sometimes very also to a number of my classmates," scholarship also gives me flexibility substantial-often more than $ 50,000. Sgrosso states. "She even accom­ in making career decisions. It will For many students, however, this is panied us on a job hunting trip to allow me to take a judicial clerkship," money very wisely spent. As some­ Florida. I wanted to honor her mem­ he adds. Garrett Epps '91 echoes one who borrowed heavily to attend ory and values in a special way. Duke this feeling: "Given my goals, which the law School, Terry Hynes '79, law School immediately came to are public interest and academics, now a partner at Sidley & Austin in mind. [The Scholarship] also recog­ I'm not sure that I could have justi­ Washington, D.C. states that, "While nizes the law School's importance fied the cost difference between the prospect of incurring substantial to me and others in helping us Duke and a state school without debt to attend law school may ap­ attain our goals;' he adds. the scholarship to bridge the gap." pear daunting to today's students, Another fund, The Jack M. Knight Scholarship awards are generally I firmly believe that borrowing to Memorial Fund, was established by made in the form of a contract with finance an education at a nationally­ a group of partners at the Charlotte, the student, committing the School recognized school like Duke is the DUKE LAW MAGAZINE I 28

wisest investment a future lawyer study is a government-sponsored and the pay scale in Atlanta will can make." program which allows second- and allow me to enjoy a good standard The process of getting loans is third-year students to earn money of living while I payoff my loans." a complicated matter, but one made while providing a service to the Brooks acknowledges, however, easier by a helpful fmancial aid coun­ School, such as research for a pro­ that the "loans rule out doing pub­ selor, Mary Hawkins. Once a stu­ fessor or clerking in the Library. lic interest work or a judicial clerk­ dent's me has received the atten­ (First-year students are not eligible ship. Not applying for a clerkship tion of the Scholarship Committee for work-study funds to encourage may be unwise, but my debt is too in the grant allocation process, Ms. them to concentrate on their aca­ great." Hawkins reviews the me for the demic work.) "The work-study pro­ Another trend noted by Ms. purpose of determining a student's gram is wonderful," says Janeen Hawkins is the increase in the num­ eligibility for the various available Denson, Circulation Librarian. "It ber of students starting law school loan programs. allows the students to earn money with sizeable indebtedness from From a desk awash with loan and it helps the Library to deal with fmancing their undergraduate edu­ applications, university forms and its workload. Having the work-study cation. The Congressional Joint Eco­ financial status reports, Hawkins students allows the circulation desk nomic Committee coined the term doles advice to fmancially-frazzled to remain open for long hours to "debtor generation" back in 1987 students with a smiling face and service the Law School community." when reporting that nearly half of comforting words. When asked how Ms. Hawkins also counsels stu­ all U.S. students leave college in debt. she handles the ever-increasing vol­ dents regarding the funds available That report painted a grim picture: ume of paperwork, Ms. Hawkins in the form of "non-need based" increasing reliance on loans could says wryly, "it seems to handle me." loans. Ms. Hawkins notes that she price many students out of higher With a total School enrollment of is making "more loans for fewer education, the economic future of over 500, she successfully processes people. The trend seems to be that financially inexperienced borrowers well over 1,000 loans a year. Much we have more and more students could be jeopardized, debt-laden of Ms. Hawkins time is spent both who must borrow the full amount students might be inclined to pur­ counseling students on handling of living and educational expenses. sue more fmancially rewarding pro­ their loan debt and playing "prob­ Fewer students are borrowing partial fessions or default on their loans, lem solver," fmding loan programs amounts to supplement savings or and the repayment of loans could which law students can use and family contributions." Hawkins cites, be placing a heavier burden on keeping up with the constantly­ as an example, a third-year student women and minorities who must changing federal regulations. She who will graduate this spring with devote a larger share of their in­ notes, "loan programs tend to be over $80,000 in loans acquired dur­ come to the debt. somewhat less available to fund ing both undergraduate and graduate graduate education. There are not school. While this is admittedly an Loan Forgiveness Program as many state and federal programs extreme example, she notes that "a Ms. Hawkins stresses her con­ available to graduate students. This student graduating with $600 per cern for the huge debts many stu­ causes some of our students a lot month in loan payments is not a dents are accruing. She worries that of frustration because funds that rare occurrence." And she estimates leaving school with a high debt per­ were available to them as under­ that among those students in the suades some students to accept the grads just aren't there any more." current first-year class who are bor­ jobs with the highest salaries. "Some Ms. Hawkins determines a stu­ rowing to fmance their Law School students with interests in public ser­ dent's fmancial need based on an education, "most will graduate in vice or government jobs may not average budget for the year as man­ 1992 with debt burdens of between pursue such a career in order to dated by federal regulations. This sixty and Sixty-five thousand dollars." secure a higher paying job that will budget is what the student should For many students borrowing earn them the funds to repay their need for living and academic ex­ to fmance their legal education is debt," she stated. penses. From that budget she sub­ the only option available. Rhonda This concern is shared by the tracts an amount previously deter­ Tobin '90 notes, ''I'm paying my Law School faculty, and in May of mined by a government-approved own way through school, so I didn't 1988, the faculty approved a program agency for family contributions and have any choice but to borrow the under which the School will assist any scholarship awards. The differ­ money. I could have gone to a students who accept low-paying ence is the student's unmet need, cheaper school, but it is worth it public interest employment follow­ which in most cases serves as the to be at Duke." Another student, ing graduation to repay the loans basis for loan determination. Doug Brooks '91, who is also bor­ they undertook to support their Law Need-based loans are allocated rowing heavily to attend law school, School education. Because of the in the form of government-subSidized says that "it will be a lot of money tremendous uncertainty about the loans and work-study awards. Work- when I get out, but I have a job scope of the long-term obligation VOL. 8, NO. 1 / 29

that would be placed on the oper­ aries below designated levels. The it that prospective students may ating budget by the loan forgiveness School does not yet have experience have to say 'no' when they would program, there are clear limitations to evaluate the adequacy of the pro­ like very much to say 'yes' to Duke with regard to the nature of the em­ gram to achieve its intended effects, Law School." ployment included and the maximum and the program will remain under What is the solution? The strain salary covered by total or partial continuous review. of "recyling" tuition revenues back "forgiveness." Nevertheless, the fac­ into scholarship allocations negatively ulty's action is, with its limited re­ The Future of influences the amount of scholarship sources, an attempt to ameliorate Financial Aid at Duke money available. Professor Robert­ the hardship imposed on graduates While the School would like son feels that the School allocates taking such public interest jobs and to award more money in the form a sufficient amount of its operating a response to the School's obligation of scholarships and grants, Professor budget to provide financial assis­ to support public interest service William Reppy, as a member of the tance to students. The Law School by its graduates. Scholarship Committee, prudently "should not divert any more of its Under the program, the Law points out the counter-balancing budget to its fmancial aid program," School will make payments of all concern that the Committee not he says. Dean Pamela Gann stresses or a portion of the institutional loans overextend itself or its funds in its the need for endowed scholarship incurred by Duke Law graduates exuberance. In awarding scholarship funds to enable the Law School to of the classes of 1988 through 1995 assistance, he says, "We have to say attract the most worthy students. "We who accept full-time employment 'no' to some people we'd like to absolutely must reduce the almost in certain public interest jobs at sal- say 'yes' to. The corollary, of course, total dependence of our fmancial aid program on tuition revenues. We need increased endowment for the School that can be ear-marked for scholarship aid. We also need to increase annual giving." With regard to graduating stu­ dents' loan burdens, Dean Gann notes that turning out students with substantial educational debts is not unique to Duke Law School and ad­ mits that the increasing costs of a quality legal education are somewhat mitigated by the increase in salaries and opportunities available to grad­ uates. However, she sees a real need "to increase the School's fmancial aid budget so that we can permit stu­ dents to make decisions about their future employment that are not domi­ nated by the need to have a large salary to facilitate loan repayment." While Duke Law School does not seem to be alone in its quest, the need for a larger base from which draw scholarship assisance is very real at Duke. The School needs to have investments made by its friends and alumni to help ensure that Duke Law School can in the long-run at­ tract the best students and can main­ tain the high quality of its legal education.

This article is the result of con­ tributions from Darla Pomeroy '91 and members of the Law School administration. DUKE LAW MAGAZINE I 30

The B.S. Wotnble Scholarship

Current Womble Scholars pictured are: (from left, row 1) Tracy D. Traynam '92, Miriam R. Arichea '90, Terrill L. johnson '90; (row 2) David M. Shaw '92, Laura Dagenhart Fennell '91, Mary E. Spear '92; (row 3) G. Garrett Epps '91, Agustin D. Diodati '91, Spruell Driver '91, and Claude A. Allen '90. Current Womble Scholars not pictured are: David M. Battan '90, Owen Autry Butler '90, Frank]. Chut, jr. '90, M. Monique Garris '92, john R. Hairr, III '90, and Steven M. Marks '92.

Since 1961, the B. S. Womble lence of the student body for which scholarship fund at Duke Law School Scholarship Fund has provided fund­ Duke is recognized. to honor her husband. According ing for scholarships to assist students to Bill Womble Sf. '39, the Scholar­ attending the Law School of Duke ship was established in his father's University in financing their legal Fund Established name "to memorialize his tremen­ education. The Womble Scholarship In October of 1961, Edith Womble, dous abiding interest in Duke and is a critical factor in attracting out­ wife of B. S. Womble, and their the legal profession. To our family standing students to the Law School children-Lila, William (Bill), Olivia, it is appropriate for that interest to and, thus, in maintaining the excel- Edith, Calder and Ruth-created a be perpetuated. Both Duke and the VOL. 8, NO.1 131

legal profession were two of Dad's The Law School's Scholarship greatest interests throughout his Committee determines which appli­ life." The Scholarship was also cants will be awarded Womble Schol­ created "to encourage more and arships. That Committee is chaired better students to come to Duke," by Gwynn T. Sw.inson, Associate says Calder Womble '47. Dean of Admissions, and includes B. S. Womble's children con­ three other faculty members. The tinue to share these interests. All six Committee "works very hard to children attended Duke University honor the Womble family's criteria," as undergraduates and both Bill Sf. says Dean Swinson. From the pool and Calder received their law degrees of successful applicants, it is deter­ from Duke. Bill Womble, Jr. '67 also mined which applicants meet the received his undergraduate and law recommended criteria. According degrees from Duke. The three are to Swinson, the Committee looks now partners in the Winston-Salem at "recommendations, grades, expe­ based law firm which bears B. S. rience, background, LSAT scores Womble's name-Womble, Carlyle, and other factors. Womble Scholars Sandridge and Rice. The Womble usually have extraordinary recom­ family "continues to have a strong mendations. They are persons who B.S. Womble interest in the development of the motivate others; who have an un­ Scholarship Fund as an appropriate usual amount of experience in an­ and graduated in 1904, having been memorial for Dad," says Bill Womble other field; who are leaders on their a member of Trinity's first basket­ Sr. This interest is evidenced by the campuses, or who have an unusual ball team. Under Dean Samuel Fox yearly contributions made by mem­ background which will add to the Mordecai, Mr. Womble was part of bers of the family to the Scholar­ diversity of the class." Trinity's first law class, attending ship Fund and by the recent addi­ From the successful applicants from 1904 to 1906. He spent an addi­ tional pledge of $110,000 by Bill who meet the criteria, first consid­ tional year studying law at Columbia Sr., Calder and Bill Jr. eration is given to students who before commencing the practice attended Duke as undergraduates. of law in 1907. Awarding the Scholarships Additional consideration is given to Mr. Womble served as a member The agreement establishing- the North Carolina residents, "because of the Board of Trustees of Trinity Fund provides that the principal de­ of the prominence of the Wombles College and of Duke University from termining factors used for selecting in the North Carolina legal profes­ 1915 until his death in 1976, and recipients are the applicant's moral sion," states Swinson. However, the was its Chairman from 1960 to 1963. character, scholastic ability, serious­ Scholarship is not limited to Duke Mr. Womble's dedication to Duke ness of purpose and leadership po­ students or North Carolina residents. was not confmed to academic and tential. Although financial need may Once the recipients of the Scholar­ administrative matters. He was also properly be considered, it is not ship are determined, "the Committee a follower of Duke athletics, attend­ to serve as a principal factor. First attempts to balance the distribution ing each of Duke's football contests, consideration is to be given to worthy of the funds available to ensure the including both home and away students who obtained their under­ recognition of those students who games. graduate education from Duke. meet the criteria of the donors," B. S. Womble was equally dedi­ Calder Womble describes the adds Dean Swinson. cated to his chosen profession­ selection of these criteria as "those integrity and competence were para­ which Dad thought made a good B. S. Womble­ mount. His study of the law was person. Each factor is equally im­ Renaissance Man never-ending, and he used his abil­ portant. While grades are significant, of the Twentieth Century ities for the betterment of the pro­ they are not to be overshadowed In 1882, B.S. Womble was born fession and of his firm. Mr. Womble by the other criteria." Bill Womble, in Chatham County, North Carolina, served as president of the North Sr. adds that seriousness of purpose the son of the Rev. William Fletcher Carolina Bar Association during 1936- was included because his father Womble and Olivia Snipes Womble. 37 and was also an active member "lived by the teachings that 'the His personal and professional accom­ of the American Bar Association. law is a jealous mistress' and that plishments demonstrate his devo­ In his personal practice, he was the 'a lawyer who has stopped study­ tion to his family, church, profeSSion, director and general counsel for ing has retired, whether he knows school and state. Wachovia Bank and Trust Company it or not.' Throughout his life, he Mr. Womble entered Trinity Col­ and for Security Life and Trust Com­ was a real student of the law." lege, now Duke UniverSity, in 1900 pany (now Integon). Additionally, DUKE LAW MAGAZINE / 32

he represented many other corpo­ According to Paul K. Sun, Jr. '89, ton and Williams in Raleigh, echoes rations and clients, including a close who is currently serving as a judi­ this sentiment. "I certainly think that association with RJ. Reynolds To­ cial clerk to the Honorable J. Dick­ Duke gave me tremendous oppor­ bacco Company. Under Mr. Wom­ son Phillips of the Fourth Circuit, tunities and that it is the obligation ble's leadership, Womble, Carlyle, "The Womble Scholarship was a of all alumni, particularly those who Sandridge and Rice grew more than very important consideration. I rec­ receive substantial fmancial aid, ten-fold. ognized that Duke was a good school, to try to give something back." Mr. Womble's activities on be­ but the Scholarship provided a finan­ David Shaw '92, a native of half of the state and community are cial incentive as well as indicating England who has spent the past legion. Some of his more significant that Duke, as an institution, was in­ eight years studying and working achievements included: member of terested in having me as a student. in the United States, adds that this the North Carolina General Assembly This meant a great deal to me." duty to contribute continues while from 1925 to 1931, the first two-year For Spruell Driver '91, the Schol­ at Duke. "Because the Law School term as a member of the House arship fulfilled a similar purpose. has seen fit to award me this pres­ of Representatives and the last two "Duke as a law school was, in and tigious Scholarship, I feel that it is terms as a member of the Senate; of itself, very attractive, but the Significant that I give something back member of the State Judicial Council Womble Scholarship defmitely placed to the University and to the area in for six years; member of the State Duke in a more competitive posi­ general. It is surely important not AdviSOry Budget Commission; mem­ tion. Additionally, it felt good to only to get the best education pos­ ber of the Winston-Salem School know that the School recognized sible, but to be involved with some Board from 1930 until 1942; and that I had attributes other than just of the more philanthropic activities president of the Winston-Salem grades." of the School, such as tutoring un­ Rotary Club. Claude Allen '90, current Presi­ derprivileged children and working Mr. Womble was also actively dent of the Duke Bar Association, with Habitat for Humanity." involved with the Centenary Metho­ stresses the importance which the Dean Swinson points to the dist Church. He served on various Scholarship has in attracting North unique and vital quality of a named church committees, successfully Carolina residents. "I think the Schol­ scholarship. "The Womble Scholar­ promoted the construction of a new arship is especially important to ship has a special prestige factor church building and also taught a North Carolina residents who have which makes it more personal. The Bible class at Green Street Methodist the option of attending the Law name implies a personal interest Church for a number of years. School at the University of North of the donor in selecting a recipient. Carolina which is very affordable. It extends beyond the giving of funds. The Importance By reducing this cost advantage, This aspect may be intangible, but of the Womble Scholarship the Scholarship allowed me to con­ it helps the Law School immeas­ As Dean Swinson states, "The centrate solely on the merits of the urably. It is this personal quality Womble Scholarship is extremely School, to concentrate on the fac­ which makes the Scholarship so important as a vehicle for recruiting ulty and program at Duke rather important and which may lead to outstanding students and interest­ than the debt which I would in­ a greater feeling of responsibility ing individuals. Because of the in­ cur." He adds that "although Duke's on the part of the student to con­ crease in tuition and living expenses, LL.M. program was a perfect match tribute something in return." Finally, the importance of the Scholarship for my interests and background, she adds, "Donors, like the Womble has increased. Scholarship assistance I had not seriously considered Duke family, set a splendid example for has always been important, but it since the cost of attending was pro­ the students they assist. They are is now critical and essential." Pamela hibitive. The Scholarship made the great role models. It is hoped that B. Gann, Dean of the Law School, biggest difference." recipients will follow their example." adds "the Scholarship is important The Scholarship also benefits In establishing the Scholarship, in showing successful applicants the School in a more subtle way. the Womble family has perpetuated how they can afford the next three "I absolutely believe that the Schol­ B. S. Womble's interest in both Duke years of law school. Thus, the Schol­ arship has increased my sense of and the legal profession. By so doing, arship is essential in making law responsibility to contribute to the they have ensured that the compo­ school more affordable so as to get School as an alumnus," says Robert sition of the Law School's student the successful applicant to matricu­ Blum '78, who is now a partner at body continues to include those late at Duke." Thelen, Marrin, Johnson and Bridges students who share B. S. Womble's Discussions with both past and in San Francisco. "I contribute yearly, dedication to be "real students present recipients of the Womble in part from respect for the School of the law." Scholarship describe the precise and in part for the gratitude of re­ role which the Scholarship played ceiving the Scholarship." Margaret in their decisions to attend Duke. Lumsden '88, an associate at Hun- Agustin Diodati '91

DUKE LAW MAGAZINE I 34

Faculty Profile A Commitment to the Law Robert P. Mosteller

ing career at Duke law School. In addition, last summer he began a two year term as the senior associ­ ate dean of academic affairs, a job he describes simply as "helping the School to run."

The Early Years Dean Mosteller, the middle child of five, grew up on a farm forty miles west of Charlotte that had been in his father's family for 200 years; The young Perry Mason showed academic promise early. He attended a consolidated high school that drew students from a number of neigh­ boring farm communities, graduat­ ing at the top of his class. He was also president of the student body and a captain of the basketball team. last year Mosteller enjoyed re­ turning to the school to deliver the commencement address. He talked about the advantages and the dis­ advantages people carry with them when they grow up in a small place and suggested that an awareness of where they come from will be help­ ful as students make decisions about their lives. Among the strengths, he claimed a sense of tradition and an understanding of loyalty and respon­ sibility. But he warned that one must be wary of the narrow perspective that sometimes accompanies small town life. He told his young audi­ ence that a product of this narrow Bob Mosteller's explanation for This penchant for hard work perspective is the tendency to not choosing a career in the law is simple expressed itself in varied ways as aim high enough in life's goals. and direct, "I liked Perry Mason Bob Mosteller ventured from days At the University of North Caro­ and never outgrew it. I thought it of watching Perry Mason in Vale, lina, Bob Mosteller .continued his looked like an interesting life. One's North Carolina through a distin­ tradition of involvement and hard professional life ought to be fun guished academic career to work work. He held the office of attor­ and interesting. I tend to work very in the Public Defender's Office in ney general of the student body hard and to organize my life around Washington D.c. Since 1983 he has and served as president of Phi Beta my work." been devoting his efforts to a teach- Kappa, while completing a degree VOL. 8, NO. 1/35

in history. Upon graduation in 1970, ulty. Basketball is a controversial program for two years. His inclina­ he was one of four people to receive subject for the couple; she cheers tions toward teaching are revealed the Frank Porter Graham award in for Duke and he cheers for UNC as he describes watching new re­ recognition of a notable contribu­ "It's the undergraduate loyalty; it's cruits develop into really good trial tion to activities at the school. hard to shake," Mosteller points out. lawyers. "People can learn to be After college Dean Mosteller good trial lawyers. After three years ventured north to Yale Law School. The Public Defender people become quite competent. It His was a circuitous route through Following his clerkship, Dean is gratifying to watch." law school. After his flrst year, he Mosteller took a job with the Wash­ During his last year in Washing­ left for the Kennedy School of Gov­ ington D.C Public Defender'S OffIce. ton Mosteller was chief of the trial ernment at Harvard where he worked A year later Elizabeth joined him in division-a great honor. The posi­ on a master's degree in Public Policy. Washington, flrst clerking for Justice tion reflects recognition as the best At the end of his year at Harvard, Byron White of the Supreme Court trial lawyer at the fmest of Public he went out to California to work and then in private practice. Defender'S offIces. He describes the in the presidential primary of George Dean Mosteller is very enthu­ job as similar to the duties of a flrst McGovern. He has fond memories siastic about his years at the Public lieutenant; the chief manages the of this trip with "a bunch of hippies Defender's offIce. "It was gratifying offIce but also carries a reduced case on the Berkeley Bus," a converted to feel a sense of social purpose. load and is still "in the flghting." moving van that ran between Boston It's part of the whole liberal notion Dean Mosteller has many en­ and Berkeley. In the fall, he contin­ of society. I think of criminal law gaging stories from his years at the ued to work for McGovern, running as meting out justice within a sys­ Public Defender's OffIce, including the campaign in an Ohio congres­ tem that recognizes rights." He sees three hair-raising stories of clients sional district. his interest in criminal defense work who appeared to be guilty but He then returned to law school as linked to the commitments be­ through quirks were shown to be and spent a year commuting be­ hind a Public Defender's offIce. "My innocent. In one rape case, the only tween New Haven and Boston while job there responded to the propo­ point in question was identity. The flnishing his master's degree. In law sition that before the government man charged had what people in school Mosteller concentrated most can take someone's liberty, they must the criminal law trade call a "family of his study on criminal law: "I never demonstrate in a public forum that alibi" meaning that he stated he was took a UCC course for instance; they are justifled in taking that action. with his family at the time of the I knew I wanted to do criminal law: It is all based on rights protection. offense, a type of alibi usually ac­ Criminal law is what made law inter­ If we have a system of something corded little weight by juries. esting for me. I did, however, choose we call justiCe, the least revered The client was placed in a line­ some other courses just to be ex­ members of our society deserve up where victims of two separate posed to the professors. For exam­ protection of their rights." rapes both identifled him. Fortui­ ple, I took Contracts II from Grant The Washington D.C Public De­ tiously for the client, he had been Gilmore, who was magniflcent." fender's OffIce is one of the "Cadil­ in jail, unable to make bail on Mos­ After receiving his law and mas­ lac" public defender programs. It teller's case, at the time of the sec­ ter's degrees in the spring of 1975, was a pilot program in the sixties ond rape; and it was clear to the Mosteller spent the rest of the year and Ken Pye, former dean of Duke prosecutor and the police that the working for the Connecticut Depart­ Law School, was involved in its early same man had commited both rapes. ment of Environmental Protection planning. Dean Mosteller considers The case was dismissed. Mosteller and studying for the North Carolina himself fortunate to have had the . believes that his client could have Bar. The next year he clerked in opportunity to work at the Wash­ spent much of the rest of his life Asheville for Judge Braxton Craven, ington D.C offIce. "People from all in jail if he had not been delayed Jr. of the Fourth Circuit, whose over come to practice criminal de­ in making bond until the day after grandfather was the flrst president fense work there. It is one of 'the' the second rape, because it would of Duke, which was at that time places to do criminal law: They put have been very hard to prove his Trinity College in Randolph County. a heavy emphasis on training law­ innocence in the face of the evi­ It was through this experience yers and the case load, although dence. None of the witnesses ap­ that Dean Mosteller met Elmtbeth demanding, is lighter than it is in peared to be lying; they were simply Gibson, now his wife, who was his other PD. offIces." mistaken about identity. successor as clerk for the judge. While he was at the Public De­ In the rape case, Dean Mosteller Gibson was a Duke undergraduate fender's OffIce he worked as a trial believed his client was innocent, and attended law school at the Uni­ attorney for three years, spent a year but that wasn't always true. In an­ versity of North Carolina, where in the appellate division, and then other case, when Mosteller felt rela­ she is now a member of the fac- served as director of the training tively confldent that his client was DUKE LAW MAGAZINE / 36

guilty, the case was suddenly dis­ that my client was guilty, and that taken time during the past two years missed by the prosecution. It hap­ [guilt] didn't matter at all. Every to further deepen their roots by pened that on the day of the grand client deserved my best effort. It building a home in the mountains jury hearing three different witnesses is a sobering responsibility, and it of North Carolina. independently went to the prosecutor is not always easy to face. What was Dean Mosteller enjoys teaching. and said that they had identified probably my best work as a lawyer "The thought of teaching was always the wrong person; the man who resulted in getting a person off who in the back of my mind. Teaching really committed the crime was sit­ later committed a homicide." has been a respected vocation in ting in the lobby waiting to appear Mosteller admits that he misses my family. My mother and several as a witness in another case. It was life at the Washington D.C. Public members of my extended family not that unusual, Mosteller says, to Defender's Office, but he doesn't teach school at different levels. Before find the victim of one armed robbery want to do it again. "It is like trials, I went to the Washington Public a short time later the defendant in they are fun to bave bad. The turn­ Defender's Office I looked into the another case, although fmding the over rate at the P.D.'s Office is very possiblity of moving from there to real perpetrator in the prosecution's high. Though there are a few people teaching. It turns out it is a fairly witness waiting area was a fluke. who stick it out, most people don't common pattern." Mosteller names his first trial make it a career. The job tends to Mosteller still thinks of himself of a first degree murder charge as occupy your whole life-long hours, "as a lawyer. Now I'm a lawyer who his most memorable moment. He demanding preparation, constant teaches." In fact, as a member of took over the trial after it had been anxiety and stress in trials. It was the North Carolina Bar Mosteller tried twice before, both trials end­ never acceptable to say 'I don't have does some legal work. ''I'm work­ ing in a mistrial with an eleven-to­ time.' Though we had a relatively ing on a death penalty case now one guilty vote. The third time they low case load, around thirty-five and 1 do some appellate work," he won an acquittal. cases at a time, the expectations reports. Mosteller tried eight first degree were very high." Dean Mosteller is very happy murder cases while he was at the "I still work a lot of hours here, with his decision to teach at Duke. P.D.'s office and won acquittals in but I have more control of my sched­ "I enjoy the classroom contact and two. Over time he began to believe ule and can determine which hours the freedom to explore ideas. The that juries use a different standard I work," Mosteller notes. 'i\.t the students are pleasant, and they gen­ of proof for more serious charges. P.D.'s office 1 would typically work erally work very hard. It is a good His sense is that juries seem to ac­ all week and then roll out of bed group of very smart people. The quit more easily in trials on lesser Sunday morning and spend the faculty here is also very friendly, charges. He attributes this tendency hours between eight o'clock and and we tend to get along well." to a psychological phenomenon two o'clock interviewing clients at Dean Mosteller teaches in the operating in serious cases like mur­ the jail because that was a slow time areas of evidence and criminal pro­ der. "I think juries have the sense at the jail and it was easier to inter­ cedure. He teaches evidence as "trial that this is a nasty person, or else view a lot of people in a short time. evidence," focusing on the trial court­ he wouldn't be here. They don't I'll never forget the smell of deter­ room rather than on theory. During like to let nasty people out on the gent and food in that place. Though his years at Duke, Mosteller has de­ street." it was really an interesting life, when voted a significant amount of time Mosteller feels that the Washing­ 1 start missing the work, I think to developing the Criminal Litigation ton D.C. prosecutors were generally of those Sunday mornings." Clinic, a responsibility that he has very good and that they put cases surrendered during his tenure as through a fairly rigorous screening Returning Home to Teach associate dean. process that dumped charges that In 1983 Bob and Elizabeth de­ As part of the Clinic, the twelve appeared ill-founded. But he sees cided to accept teaching positions to eighteen students are placed with a danger in the fact that juries tend at Duke and Carolina. It was a deci­ prosecutor's and public defender's to assume some guilt in these more sion "to return home." They only offices in the area. At the same time, .1 serious charges because at the same applied to two places and probably Mosteller runs a complex case simu­ time the screening process tends would have remained in Washington lation as part of the class. His expe­ J to become less rigorous on higher D.C. if they had not gotten the jobs rience in the D.c. Public Defender's counts because of public pressure. at Duke and Carolina. They have Office is evident in the way he fo­ Near the end of this stint at the two children, Daniel who is eight cuses the course with an emphasis P.D.'s Office, Mosteller saw that he years old and was born in Washing­ on investigation, discovery and pre­ was becoming jaded. "The lawyer ton D.c., and Benjamin who is three trial motions. just doesn't know if the client is years old and a North Carolina na­ At the beginning of the process, guilty. I came to the point where tive. In addition to the usual activ­ the students are divided into defense I simply operated under the premise ities of a young family, they have and prosecution and are given the VOL. 8, NO.1 137

name and phone number of the effective assistance in the placement see myself as having any specific client and of the chief detective. of graduates in judicial clerkships. goals for this pOSition. I'm here to After that point, they are on their He also works to arrange for visit­ keep things running." own. Mosteller hires work-study ing professors and to develop fac­ Bob Mosteller's commitment to students to act the parts of the dif­ Ulty hiring possiblities, though he the law has broadened beyond the ferent persons involved in the case emphasizes that the decision-making example set by Perry Mason and but the students in the class have fmally rests with the Dean on fac­ has taken many different forms over to fmd those persons, ask questions, ulty matters. "She sets the direction, the years. But everything he has done uncover information and plan their I try to implement it." coheres within his philosophy of strategy. "Basically, I gather information life generally, expressed in his ad­ Mosteller himself wears many and focus it to a decision-making vice to people who are thinking different hats during the Clinic, play­ point for the Dean," says Mosteller. about working in the law. "It has ing judge or police chief or any "I am good at gathering and organiz­ something to do with working hard other role that is needed to com­ ing facts. I tend to be very focused and enjoying what you do. I think plete the experience. Planning and in things; that is both my strength law oUght to be interesting and fun. carrying out the class is tremendous­ and my weakness. This kind of in­ I wouldn't encourage anyone to do ly time intensive, but Dean Mosteller formation gathering is gratifying this only as a way to earn a com­ feels that it is important to make because it matters. Dean Gann really fortable living, because there are the experience as real as possible. reads the stuff and thinks about it. lots of other ways to do that. There's "It takes lots of time, but it is really I also enjoy making things work; something more here. The law oUght fun." I liked that aspect of some of my to be fulfilling, an opportunity to work at the P.D.'s office and I en­ take chances and to do what you Helping the School to Run joyed working on political campaigns want to do." On July 1, Mosteller accepted because of the opportunity to orga­ a two year position as senior asso­ nize and see something done. I think ciate dean. The main reason he took that is helpful here. I really don't Denise E. Thorpe '90 the asSignment he articulates as, "wanting to support Dean Gann. I really feel that she is committed to the welfare of this institution. I see this job as designed to sup­ port the work she is trying to do. I think that she is an excellent Dean and she deserves our support." Mosteller fmds Gann's "agenda for this place congenial with my own sense of things. For example, she puts a high premium on teach­ ing. Teaching is not always a priority at top law schools, but she is focus­ ing on teaching excellence as an important goal." Since Significant fund-raising is also a particularly important goal for the School now, Dean Gann has the burden of raising money. Mosteller decided that he "could support her by helping to keep things running here so that she could focus more of her time on issues outside of the day-to-day working of the School." Dean Mosteller's job is an amaz­ ing hodge-podge; it involves every­ thing from the mundane headaches of parking and office allocation to curriculum development. He super­ vises student services and registra­ tion and is helping to develop more Dean Mosteller meets with Ms. Sally Alston, staff specialist (right), and students. DUKE LAW MAGAZINE I 38

Alumnus Profile Running the Nation's Most Profitable Railroad Arnold B. McKinnon '51

Many small boys love to play with trains, often dreaming that they are running the locomotive. Few boys progress beyond those dreams. Therefore it seems ironic that a boy whose primary dream in life was to be a small town lawyer like his father ended up running the nation's most profitable railroad. And the greater irony may be that the "romance of the rails" that cap­ tivated the other boys wasn't even a factor in Arnold B. McKinnon's rise to his current position as Presi­ dent, Chairman and Chief Executive Officer of the Norfolk Southern Corporation.

Fortuity Instead, "it was somewhat for­ tuitous that I was ... offered a job with a railroad. The general coun­ sel [of the Southern Railway] at the time I was finishing law school had gone to old Trinity and turned to the dean of Duke law School to look for suggestions for a young lawyer," million; and the shareholders' earn­ board of Duke Law journal, came related the 62-year-old graduate ings per share increased 285.7%. to an end, McKinnon and his father of Duke law School. That fortuity These statistics leave little doubt agreed that it would be a good ex­ has not been McKinnon's alone. that the company's shareholders perience for the younger McKinnon Under McKinnon's tutelage Norfolk should be thankful that McKinnon and his wife Oriana to live in Wash­ Southern, the nation's biggest coal chose to work for Southern Rail­ ington, D.C. for a year or two. "I hauler and its fifth largest freight way Systems after graduation in 1951 never had any intention of staying carrier, has been one of the most, rather than for his father's firm in in Washington," McKinnon recol­ if not the most profitable and pro­ Lumberton, North Carolina. lects, "[but] I found as I worked ductive corporations in the trans­ Although he did not follow his in it, the kind of law practice I had portation industry. father and brother back to Lumber­ with a corporation was challenging, In 1988, Norfolk Southern's ton, McKinnon did follow in their [and] was in many ways ... like operating revenues increased 8.5 % footsteps when he attended Duke [working in] a smaller law firm." to $4,461.6 million (on assets of University and then its law School. Once hooked, McKinnon stayed $10,059.1 million); its after tax in­ As his law school experience, which on at Southern to become the Gen­ come increased 268.4% to 635.1 included serving on the editorial eral Solicitor in 1965, the Assistant VOL. 8, NO. 1 I 39

Vice President for Law in 1969, Vice his legal education, which he says that one of his three sons, Colin, President for Law in 1971 and the has served him well. Although a received at the Fuqua School of Senior Vice President for Law and lawyer's inclination to incessantly Business. (All three of the McKinnon Accounting in 1975. As more time weigh the alternatives could be a children-Arnold, Colin and Henry­ passed, he became Executive Vice detriment to a businessman and CEO attended Duke University.) But as President for Law and Accounting who needs to make quick decisions, he moved up the legal department and then Executive Vice President McKinnon's own operating style ladder, McKinnon became respon­ for Law and Finance in 1981. One has overcome that potential disabil­ sible for supervising a group of law­ year later, Southern Railway merged ity "Even as a lawyer I always felt yers that had "production sched­ with Norfolk & Western Railway a responsibility . . . that it was not ules," and then had to be a manager to become Norfolk Southern, and a lawyer's job to tell the client what of production, personnel and related McKinnon made his switch from he cannot do; [instead] it's the law­ matters as the Vice President for law to business as the Executive yer's job to tell him how he can, Law. He also had to act as the inter­ Vice President for Marketing. within the legal framework, do what face between the legal department This switch was facilitated by needs to be done for the business. and the other departments that McKinnon's understanding of the I think that approach helped me needed legal advice. railroad industry's (then ongoing) get a feel for what business was Those experiences gave McKin­ deregulation. "I had done an awful about," McKinnon continued, "and non "a combination of some training lot of work on the legislation and to the extent that I've had any suc­ in managing people and in managing understood what the new market­ cess as a manager it came from the "production." I suppose the same place approach was going to have approach I had as a lawyer." is true in a small law firm, but more to be," said McKinnon. "I didn't start Furthermore, law school and so in a great big law firm, that you behind the technical experts who movement within the Southern's legal have to learn to manage production had been experts on traditional fares department helped make McKinnon if you're going to keep the client and things. . . . I had done a lot of a generalist, a background he feels satisfied. So perhaps that's the train­ organizational work and in a merger is more helpful for senior executives ing that all lawyers get; I got it more you're going to have to pull together than a technical one, unless the ex­ simply because of the broader ex­ a lot of people. Those were the ecutive is in a technically oriented posure I had through having posi­ kinds of background skills that led job. Finally, according to McKinnon, tions in a number of different areas me to move out of law and into a person's educational background of our business." the market." may not be so important in the long Prior to becoming a manager run for "management is really more McKinnon was a general corporate An Evolving Career an art than a science." attorney. As such he worked in real Much like the events that lead to estate, tax law, and general corporate his initial employment with Southern, CEO Avoids Being law-fmancial transactions, SEC climbing the corporate legal ladder a 'Helping Hand Lawyer' matters-the type of work that is and then crossing over to fmd a Even though his legal education done in a general corporate law firm. niche in the "marketplace" was not is still useful, McKinnon makes it To his relief, McKinnon was not part of a blueprint that McKinnon a point not to be a "helping hand slated to be an ICC rate expert or had previously inked. Rather, as he lawyer" when problems come up to handle some other technical trans­ climbed the legal ladder McKinnon at the railroad. "I made up my mind portation specialty. Although he did found himself assisting managers in when I left the law department, or not specialize in lobbying or legis­ other departments in their business at least the law and fmance super­ lative work, the fact that Southern judgments. As these interactions visory work, that the best thing I Railway was headquartered in Wash­ increased, McKinnon became more could do is not to try to practice ington, D.C. meant that McKinnon interested in management, "and when law but to be a good client. And was actively involved in legislative the opportunity came to get more I think that it's counter-productive matters, an involvement that grew into it I jumped at it. I can't say it for me to try to get involved in the when he supervised the legislative was any master plan but more just day-to-day activities of the law de­ and public affairs department. an evolving thing that worked out partment." Still, McKinnon hopes Among the legislative work that well for me. . . . [Y]oung people that his legal background enables McKinnon was involved in was the ought to be planners, but I think him to ask intelligent questions when Staggers' Act of 1980, which deregu­ that they oUght not let their plans Norfolk Southern's chief counsel lated many segments of the railroad get in the way of their progression recommends action in major liti­ industry. The Act exempted piggy­ into things that they fmd satisfying." gation or contract negotiations in back business and boxcar traffic Despite his career's evolution which the CEO has been involved. from regulation, as well as giving from law to business and manage­ As a lawyer, McKinnon had none railroads more leeway to withdraw ment, McKinnon still makes use of of the formal management training from dual routes. DUKE LAW MAGAZINE I 40

Revolutionary Impact the understanding that the ideas Western assembly plants just as they of Railroad Deregulation will be tested in small increments. are needed, a service that saves the According to McKinnon, the Act "I believe that incremental change car manufacturers money by limit­ has had "a revolutionary impact. is often ... more effective than ing inventory costs. On the return I think greater changes have come quantum leaps both in terms of be­ trip, the truck/rail containers pick since 1980 than had come in the ing able to manage them and being up industrial goods in the South. 50 years before in the railroad busi­ able to implement them. But each Norfolk Southern's long term plan ness . . . ." Essentially the Act took one of [those incremental changes] for the Triple Crown service is to the railroads from a cartel environ­ may be something that's completely divert some of the SHOO billion ment with oversight by a regulatory new and you build them together freight traffic that currently moves body to a direct marketplace envi­ and you've got what in five years by truck back to the trains. ronment where companies can have time might look like a spectacularly Given his success as both a law­ special contracts for special situations different animal than what you yer and a bUSinessman, McKinnon or give discounts to beat competi­ started with." has a unique vantage-point from tion. Under the old system a com­ which to view the interplay between mon rate for the whole industry Norfolk's Strategy: law and business. One "scene" that was set through a cartel process Stick With the Core Business McKinnon has watched is the num­ and then approved by the ICC. This This philosophy has obvious- ber of people and the amount of led to a situation where, as McKin­ ly served McKinnon and Norfolk time and money that goes into the non described it, "your only real Southern very well. And in keep­ law and the legal process. And like competition was in combination ing with that philosophy, Norfolk Harvard University President Derrick of services and who could be the Southern has not followed the lead Bok (who has a ].D.), McKinnon nicest to the traffic officer of the of many of its competitors by diver­ believes that "we have gotten over­ shipper." sifying into areas outside the trans­ burdened with the 'product' of "That's changed," said McKin­ portation industry: This is not to lawyers." non. Now "we have to be just as say that McKinnon's management Although he will not go to the customer service and price oriented has made Norfolk Southern a stag­ extreme of damning his own pro­ as the comer drugstore." The need nant, one dimensional corporation­ fession by saying "we oUght to get for more responsive customer ser­ the railroad does have coal properties rid of all of the lawyers" or by agree­ vice and market price orientation in West Virginia, natural gas devel­ ing with Bok's statement that the caused a complete change in the opments in West Virginia and Ken­ United States is wasting its top talent industry's mindset in terms of speed tucky, and a number of real estate by having people go into the law of action and "providing service interests, including a new Omni rather than business, engineering, that had special value." The new Hotel in Charlotte. or the sciences, McKinnon thinks era has also seen railroads move Additionally, the corporation was that law schools must make their to the forefront of new marketing a major stockholder of Piedmont graduates understand that a law­ concepts to attract customers and Airlines prior to the airline's merger yer's job is one of a facilitator. It is differentiate products. Overall, de­ with US Air and it acquired North a lawyer's duty "to help the whole regulation has made railroads "a American Van Lines, a household system move more smoothly and much more efficient industry and moving and truckload freight busi­ efficiently and not to bog it down much more a factor in the market ness, in 1985. But "all of these things in some of the products of the law. place. We' were becoming a buggy­ really grew out of the core transpor­ ... [T]he job of a lawyer is ... [not] whip in an automotive era." tation business," McKinnon stressed. to be just a negativist." Throughout his career McKin­ ''As a matter of strategy we have "I think that [being a negativist] non's philosophy has been one of concluded that we are best served is a danger that all lawyers have to careful, steady progression. His max­ and best serve our stockholders by watch, and I think that they have im, as written by Alexander Pope, sticking to that core business." to recognize it as both a serious pub­ is "be not the first by whom the Norfolk's acquisition of North lic relations problem [and] a serious new are tried, nor yet the last to American Van Lines expanded its fundamental problem. And I think lay the old aside." McKinnon feels core business: the combination of the law schools should be helpful the adage really means "that you Norfolk's trains and North American's in encouraging lawyers to recog­ better look at all of the parameters trucks has allowed the company nize what [Bok's] statement [stands of something before you jump into to start a just-in-time, containerized for], and to say "we're not going it." While this philosophy could trucking and rail service dubbed to be guilty of being ... a drag on work as a brake on innovation, a "Triple Crown." The bulk of the society, rather we will be a valued tendency which McKinnon admits Triple Crown business is moving addition to it." he must guard against, it still encour­ recently completed auto parts from ages research and new ideas with Detroit manufacturing plants to Mid- jack Alden '90 VOL. 8, NO. 1 I 41

Alumnus Profile U.S. Attorney, The Best Job Government Can Give a Lawyer

Breckinridge L. Willcox '69

Breckinridge Willcox '69 never Nearing the end of his four-year sentatives for the federal government planned on a career as a federal term as a Reagan appointee, Will­ seems like a logical sequence of cal­ employee. But after eighteen years cox may seek a reappointment from culated stepping stones, but Willcox of government service, the promise George Bush, lengthening his tenure said he never had a "career blue­ of a pension after twenty years, and in what he considers "the best job print." The draft board helped him talk of a pay raise, the United States government can give a lawyer." make his first employment decision. Attorney for the District of Mary­ Looking back, his path to a posi­ During his senior year at Yale Uni­ land is reconsidering his options. tion as one of the key legal repre- versity, he received a notice to report for a physical. To get a deferment for law school, he promised to join the Marine Judge Advocate General Corps after receiving his degree. Graduating from Duke Law School during the height of the Vietnam War, his next three years were al­ ready spoken for. After fulfilling his military com­ mitment, Willcox worked for two years in Washington, D.c. as the executive assistant for former United States Senator Charles McC. Mathias, Jr. of Maryland. During his stint on Capitol Hill, Willcox met Richard Thornburg, who was at that time, the nominee to be the Assistant At­ torney General for the Department of Justice Criminal Division. "My joining the Department was kind of fortuitous," Willcox recalls. "Thornburg asked me to apply, and I did." Over the next ten years, Will­ cox shot up in the Department's ranks, eventually becoming Chief of the Fraud Branch of the Crim­ inal Division. In 1984, Willcox left the Depart­ ment to build a white collar fraud defense practice in a private washing­ ton firm. "I left government, cut the umbilical cord, and didn't look back at all. I was happily enjoying my law firm as much as a career pros­ ecutor can ever enjoy defense work," Willcox said. But two years later, he "got the call" asking him if he DUKE LAW MAGAZINE / 42

would be interested in the US. Attor­ who worked in suburban Maryland. office successfully prosecuted two ney position. After hesitating for three Morison stole satellite intelligence ringleaders of a "murder-for-hire or four days, he decided to accept. photographs taken of the first Soviet racketeering enterprise" that revolved "It's a wonderful job, and this office nuclear-powered aircraft carrier and around a drug gang in a West Balti­ has for decades had a wonderful gave or sold them to a weekly ship­ more project. reputation in terms of non-partisan, ping publication. The photographs In these complex, drug-related professional law enforcement." were printed, and Morison was pros­ cases, Willcox finds that attorneys ecuted on charges of espionage and in his office get very involved in The Job of u.s. Attorney theft. Willcox wrote the brief and the prosecution from the outset. As one of ninety-four US. At­ argued the case on appeal in the "you have to target who you want torneys in the country, Willcox Fourth Circuit. The Supreme Court to go after, and how you get from runs a legal staff of forty-five assis­ denied certiori in 1988. here to that defendant can be a tor­ tants from his well-secured office Morison's conviction sent shock tuous path. There is a lot of con­ in the federal courthouse in Balti­ waves through press organizations. sensual phone monitoring that the more. Willcox reports that the Mary­ "They felt, I guess not incorrectly, assistant has to be involved in. The land district is "the third or fourth that the logical next step would be wire taps are almost exclusively the most active in the country in de­ to prosecute the press," Willcox assistant's responsibility. All search fending government physicians in said. "They are almost as guilty, for warrants are signed by the assistant, medical malpractice actiOns," ex­ taking the confidential information and any cooperation deal for wit­ pending twenty-five percent of its and printing it, as Samuel Morison ness immunity can only be signed resources to defend the United States is. There have been no prosecutions off on by a prosecutor." in such civil actions. The bulk of the of the press yet, but that precedent Thus much of the legal activity office work, naturally, is in prosecut­ case is on the books." involves the investigation of large­ ing criminal cases for the govern­ Outside of his courtroom ap­ scale drug organizations from the ment, some 1,500 annually. pearances, Willcox spends most of bottom up. "In a drug ring, you It is the rapid pace and the nearly his time supervising and allocating don't have boy scouts as witnesses," overwhelming case load that appeal the resources of his large legal corps. Willcox added. "you are using peo­ to Willcox. "I have tried to stay very The majority of the cases prosecuted ple who have pled guilty themselves, active as a trial lawyer myself-that by the Maryland office are referrals who are trying to cut a deal." is my love," he said. "I attempt to from the Federal Bureau of Investi­ Although Willcox recognizes try two cases a year, and I've man­ gation, the Drug Enforcement Agen­ the success his attorneys have had aged that with some difficulty." cy, the Internal Revenue Service, in prosecuting major drug violators, Although he can point to a few sig­ or Customs. The bulk of the cases he makes an effort to limit the drain nificant trials he has handled in the involve white collar criminals and these cases could have on the office's last few years, Willcox feels he is drug organizations. resources. "I could devote forty-five not in court enough. of my assistants to doing nothing He convicted two defendants Prosecuting Drug Offenders but narcotics cases, but I don't think on a retrial of extortion and tax Although Maryland is not a pri­ we are making a huge dent in the evasion charges. One of the defen­ mary drug import site, one fourth drug war," he said. "Everybody in dants was a major narcotics dealer of the open ftles and half of the law enforcement agrees that you in Washington, D.c., who was the trials handled by Willcox's staff are are not going to win the war on prime suspect in the shooting and drug crimes or drug-related offenses the prosecution side-the supply wounding of an Assistant U.S. Attor­ of money laundering or illegal rack­ side. You are going to win it on the ney in Washington. The case was eteering. Willcox points out that demand side-in the homes, the reversed on appeal, and the assistants most of the drugs come from Miami churches, the schools." that handled it at the initial trial or New York. "We focus on gangs had left the office. "It was a tough trafficking in major amounts of co­ Maintaining A Balance case, and I think the boss oUght to caine, crack and heroin. We try to To balance the time-consuming take over a few cases that are not take down a whole organization at focus on drug cases, Willcox also slam-dunks," Willcox remarked. He once-the Maryland street dealers, emphasizes prosecutions in the area also prosecuted a savings and loan the Maryland importer, the source of white collar fraud and corruption. fraud case against the principals in Florida or New York. We try to The Maryland office, according to of the First Maryland Savings and work the case long enough to get Willcox, has always been preeminent Loan in a seven-week proceeding, at the source," he said. in that area-successfully prosecuting resulting in convictions last May. Willcox feels that his office has Vice President Spiro Agnew and The most memorable case for been successful in its legal battles former Maryland Governor Marvin Willcox was the espionage trial of against drug offenders. In July, assis­ Mandel. Willcox also directed the Samuel Morison, a naval analyst tant US. attorneys in the Baltimore activities of his assistants in the re- VOL. 8, NO. 1 I 43

cent Wedtech prosecution of State sistants a high degree of autonomy. neys is a bad idea. law enforcement Senator Clarence Mitchell and a pro­ Similarly he rarely finds himself answer­ these days is so specialized a call­ curement fraud case against Martin ing to his superiors in Washington. ing, and so important a calling, that Marietta. "We are pretty much independent it has to be done in an absolutely This is the work Willcox con­ up here. We don't get overbearing non-partisan, professional way." fessed most interests him. He spent guidance from the Department and Although the position is a popu­ almost nine years in the Fraud Sec­ aren't required to get permission lar stepping stone to political office tion of the Department of Justice's for most of the things we do," Will­ and prestigious judgeships, Willcox Criminal Division and built a thriving cox said. "I nominally report to the said he has no aspiratiOns to run private defense practice in white Attorney General, but I have an for office, and he doesn't want to collar fraud and corruption. enormous amount of resources, be a judge--":'at least not any time Beyond the well-entrenched and enormous power, and I can soon. I'm a trial lawyer. I'm an ad­ activities in drugs and white collar basically set my own agenda." vocate, and I think advocates have crime, Willcox has made his con­ Although Willcox recognizes trouble being judges," he said. "It's tribution to the Maryland district that the office of the U.S. Attorney tough for an advocate who is used office by establishing an environ­ has, in the past, been used as a presi­ to taking a position to sit in a re­ mental practice. He has also insti­ dential tool for setting a partisan active position." tuted a procedural review for all agenda, Willcox believes that the Regardless of what Willcox does cases during the pre-indictment stage. U.S. Attorney position has become next, he has left his mark on the "To my horror that was not being more a post for sharp prosecutors Department of Justice, and he has done," he said. "So we set up a than lax politicians. He estimated no regrets. "It was always a point devil's advocacy unit. We critique that out of the ninety-four U.S. At­ of irritation to me that my colleagues the theory of prosecution and the torneys, approximately eighty-eight in private firms were making twice language of the indictment in order had prior experience as federal prose­ or three times what I was making. to get as good a prosecution as we cutors. He rarely receives calls from But, if you want to be a trial lawyer, can." This process helps Willcox Republican officials, and when he there's little opportunity for that familiarize himself with a portion does, they are simple inquiries about in most big firms. The work I've of the many cases handled by his the status of an investigation. done has always been enjoyable assistants. ''I'm a lawyer who happens to and professionally rewarding." Although Willcox keeps a closer be in a politically appointed job," watch on the more politically charged, he said. "I, for one, think that the newsworthy cases, he gives his as- political appointment of U.S. Attor- Susan Heilbronner 91 DUKE LAW MAGAZINE 144

BookReview Robert Dole: American Political Phoenix* Stanley Goumas Hilton '75

Stanley Goumas Hilton '75 and harsh treatment received in U.S. worked as a Senate aide and coun­ military hospitals are two things sel to Bob Dole in 1979 and 1980. that have most influenced Bob Dole's Combining his personal experience character. Dole emerged from these and interest in the senator with an experiences as an individual who extensive amount of research, he works to excess and is, in general, examines Dole's political career and distant and distrusting, yet has great potential as a future president in his empathy for the disadvantaged. book, Bob Dole: American Political Dole continued and completed Phoenix. Hilton's work was in no his formal education at Washburn way sponsored or even sanctioned Municipal University in Topeka by by Senator Dole. His request for obtaining both an undergraduate a personal interview with the sena­ and a law degree. While still a stu­ tor was denied. On the other hand, dent, he won his fIrst election-a Hilton reports that there was no seat in the Kansas House of Repre­ attempt to discourage the writing sentatives. From there he began a or censor any part of it. Thus, he political climb that would take him is able to discuss candidly the sen­ to the Russell County Attorney's ator's personality and analyze the Offtce, the U.S. House of Represen­ motives for his political actions. tatives, and fmally the U.S. Senate. Bob Dole was raised in Russell, In describing Dole's political na­ Kansas by middle class parents who ture, Hilton repeatedly refers to him belonged to the Democratic party. Stanley Goumas Hilton is in private as a pragmatist and a chameleon. His father was a private business­ practice in San Francisco. Since grad­ Throughout his career Dole has man who believed in hard work uation from the I..a.w School, he has received an MBA from Harvard, seemed to display no strong philo­ and reportedly spared little time worked as minority counsel to Sena­ sophical beliefs, and has appeared or affection for his son. Nevertheless, tor Dole, and as an assistant to the to sway with the prevailing political the son had tremendous respect California State Senate. He has re­ winds. Bob Dole has made many for his father. Driven by a desire cently completed writing two novels. political moves that appear to be to win the attention and affection motivated by an effort to gain na­ he failed to receive from his father, tional attention or political support. Dole became an ambitious and over­ he spent less than two months in The fIrst evidence of this was his achieving young man. An anecdote Italy where a shoulder wound sent decision to run for political offtce that best reflects his nature concerns him back to the states in a body in 1950. Rejecting the party of his a high school football game in which cast. For months Dole was confmed parents, Dole opted for the party Dole "threw and caught his own to military hospitals where inade­ in favor, both nationally and in pass and scored a touchdown." quate treatment not only inhibited Russell-the GOP. Following a mediocre freshman his recovery from the battle wound, Hilton explains that despite Dole's year at the University of Kansas at but nearly cost him his life as a reputation as the "Zelig of American Lawrence, Dole was drafted and severe infection resulted in the loss politics," some of his views have entered the U.S. Army in 1943 as of a kidney. A bitter man, he returned remained constant. One of those is a second lieutenant. In 1945, as to Kansas to face the remainder of the belief that the handicapped de­ World War II was coming to a close, his life with a useless right arm. serve special consideration. Another Hilton suggests that the unaffec­ is his rather intense dislike of Ted *(Contemporary Books, 1989) tionate father and the incompetent Kennedy and George Bush. Aside VOL. 8, NO. 1 / 45

from ideological differences, both positive side the senator appears ing his failure to win the 1988 Re­ Bush and Kennedy represent, in to have made an effort to improve publican nomination, the question Dole's view, the wealthy, patrician his image and is married to a wom­ becomes whether the 'l\merican New Englander. The antipathy he an with a positive personality. Yet, political phoenix" can again become feels toward George Bush even led the fact that he often comes across a serious contender for the highest him to ruin his own presidential as a bitter and antagonistic man office in the land. One can be cer­ chances in 1980, in order to make might place him in the category tain that Hilton is closely watch- sure that the Bush campaign was of active negative. ing Dole's actions under the Bush unsuccessful. Hilton thinks the characteristics preSidency. In 1975, Bob Dole married his that would likely contribute to a Mr. Hilton's book is an interesting political soulmate, Elizabeth Hanford. successful Dole presidency are his and well-written account of Senator Elizabeth, a pragmatist in her own stringent work habits, his compassion Dole's career. There is no question right, was a registered Democrat for and understanding of minorities that he admires his subject and sup­ and White House assistant under and the disadvantaged, and his vigi­ ports his presidential aspirations. President Johnson, but quickly lant attitude toward foreign powers. He states in the opening paragraph changed her party affiliation when He also displays an independence of the preface that he thinks "Dole she stayed on at the White House in his opinions that would make is a truly unique person with the to work for Nixon in 1969. This him less likely to be influenced by potential to become a great presi­ marriage not only gave Dole an un­ special interest groups. On the other dent." Yet, it is also clear that he derstanding political partner, it also hand, some characteristics that might has not let this admiration blind gave him a boost up the social lad­ lead to an unsuccessful presidency him to the senator's shortcomings. der, since the Hanford social and for Dole are his failure to develop In light of frequent references to economic background contrasted good public speaking skills, his ten­ the fact that most people who know with that of the Doles from Russell, dency toward sarcasm and use of Bob Dole do not have neutral feel­ Kansas. cutting wit, and his basic distrust ings toward him, Mr. Hilton must Hilton's book was written while of the press. The latter character­ be commended for the level of Bob Dole was campaigning for the istic has manifested itself in Dole's objectivity he is able to maintain. Republican nomination for president efforts to control what is printed in 1988. A portion of the book is about him. Another negative trait Reviewed by Hope E. Breeze, Head therefore devoted to speculation that would probably hinder a Presi­ of Technical Services, Duke Law about what sort of president Dole dent Dole is the difficulty he has Library. would make. Aided in part by the communicating one on one. There wisdom of Duke professor James are many references by the author David Barber, Hilton attempts to to the senator's aloofness in dealing analyze Dole's character. Barber's with his staff. Too much criticism well-known study has grouped past and too little positive reinforcement u.s. Presidents into four categories have evidently not endeared Dole based on a study of their personality to either colleagues or aides. traits during childhood and early An additional theme of the book, years. Each category combines an as presented by its subtitle, becomes active or passive trait with a positive more interesting with the events that or negative one. Active presidents have transpired since the writing. work hard as opposed to passive Dole's ability to "rise from the ashes" ones. Positive presidents enjoy their like the mythical phoenix is well work while negative ones do not. documented by Hilton. An ill-timed John Kennedy is considered to have divorce from his first wife; the minor, been an active positive president; but virtually ignored role he played Calvin Coolidge, a passive negative. in some of the Watergate scandals; In Hilton's conversation with the a failed vice presidential campaign professor, Barber expresses the view with Gerald Ford in 1976; and a fi­ that Dole would be an active presi­ nancially and emotionally draining dent, but is unsure as to whether run for the presidency in 1980 were he would be an active positive or pitfalls from which Dole emerged active negative president. On the with little political damage. Follow- DUKE LAW MAGAZINE / 46

SPECIALLY NOTED Professor Robertson Retires was during Robertson's tenure as senior associate dean that the plans for renovating the Law School facil­ ities were launched. Working with the architects and shepherding the renovation project became added components of Professor Robert­ son's already busy schedule. Of course, as a member of the faculty, Professor Robertson was also involved in a number of other activi­ ties. He has served on numerous Law School committees and has been the director of the joint ].D.I LL.M. program in comparative and international law since its inception in 1986. For three years, Professor Robertson was a member of the Duke University Academic Council, and he has been a regular participant in the Law School's fund raising telethon. The Duke International Law Society (DILS) owes much to Pro­ fessor Robertson. Debra Kelly '90, the current president of DILS, em­ phatically expressed her "appreci­ ation for all that Dean Robertson has done for DILS over the years. He has been a major supporter of the International Law Society. Dean Robertson's enthusiasm for our par­ ticipation in the Jessup International Moot Court Competition was in­ strumental in our ability to compete Professor Horace B. Robertson, In addition to his teaching re­ in the national semi-fmallast year." Jr. retired from his teaching posi­ sponsibilities, Professor Robertson Professional responsibilities be­ tion in December leaving a legacy held the position of senior associ­ yond the Law School have also re­ of notable accomplishments. Since ate dean of the Law School from ceived Professor Robertson's steady coming to Duke Law School in 1976, July 1986 until June 1989. As senior attention. He has been a member Professor Robertson has taught torts associate dean, he was second in of the Panel on the Law of Ocean and contracts small section classes command to first, Dean Paul D. Car­ Uses, sponsored by the Council on and the accompanying research and rington, and then, Dean Pamela B. Ocean Law, since its inception in writing program, as well as public Gann. During his three year dean­ 1983. Professor Robertson is also international law, admiralty, and ship, Robertson handled the multi­ a member of the advisory commit­ seminars on international organiza­ tude of daily internal administrative tee for operational law for the Naval tions and the law of the sea. He and organizational matters that keep War College and a member of the also has supervised the course in the Law School running smoothly board of advisors for the University American law for international stu­ while freeing the dean to concen­ of Virginia's Center for Oceans Law dents for four years. trate on broader policy issues. It and Policy. Since coming to the Law VOL. 8, NO.1 /47

School, Professor Robertson has Nations Law of the Sea Conference vide. He has more than fulfilled my been writing and publishing, pri­ in 1958 and a member of the US. expectations ...." marily on a range of issues having delegation to the UN. Seabeds Com­ Professor Robertson is married to do with the law of the sea, and mittee's Sixth Preparatory Session to Patricia (Trish) Lavell, and they on the law of naval warfare. for the Third UN. Conference on have two sons, Mark, born in 1952, Whether in his capacity as a the Law of the Sea in 1973. As spe­ and Jim, born in 1954. Trish was teacher or as an administrator, regard­ cial counsel to the Secretary of the a Duke employee herself from 1979 less of how many tasks he was jug­ Navy from 1964 to 1967 and special to 1983, serving as the director of gling at once, Professor Robertson counsel to the Chief of Naval Oper­ alumni travel. Since leaving that job, always made it seem that the only ations from 1970 to 1972, Robertson she has devoted her energies pri­ matter on his mind was the one worked with Admiral Zumwalt, Paul marily to work as a volunteer in the at hand. Martin Ricciardi '90, who Nitze and others on problems in­ American Red Cross. Her present was in Robertson's class on public cluding the Navy's position on the responsibilities there include chair­ international law, remarked that "de­ F-I11B aircraft program and the fu­ man of volunteers for the Central spite his busy schedule, Professor ture of a nuclear navy: From 1968 North Carolina Chapter. She expects Robertson's door was always open to 1970, Robertson was stationed that Professor Robertson's retirement for students who had questions." in the Philippines as assistant chief from teaching will have little effect In the smaller classes, Professor of staff to the Commander of Naval on her busy schedule of volunteer Robertson even let his sense of hu­ Forces for Legal Affairs. activities. Trish has also enjoyed the mor surface, as anyone who has By the time of his retirement Duke Law School connection. Pro­ contemplated the causes of action from the Navy in 1976, Professor fessor Robertson's students fondly in the case of Robertson v. Good Robertson had achieved the rank remember her gracious hospitality Ship Lollipop in admiralty class can of Rear Admiral. He had attended at small section get-togethers. attest. the Naval War College for a year's The Robertsons' son Mark is Professor Robertson's thirteen instruction on naval planning, and a marine biologist employed by the years at the Law School were pre­ had earned an M.S. in International Nature Conservancy in the Florida ceded by an extraordinary thirty­ Affairs from George Washington Keys, and son Jim is an attorney one year career in the Navy: Follow­ University. In recognition of his who, after several years litigating ing graduation from the US. Naval service as Deputy Judge Advocate environmental issues in private prac­ Academy in 1945, Professor Robert­ General and Judge Advocate General, tice and for the US. Department son spent five years as a line officer, Professor Robertson was decorated of Justice, now works in the Mary­ during which time he was on one with the Distinguished Service land office of the Chesapeake Bay of the first ships to arrive in Tokyo Medal. Foundation in Annapolis. Mark and Bay after V-J Day. He also served as Professor Robertson says of his his wife, Deborah, have a two-year­ an air control officer aboard a radar naval career, "The best part of naval old daughter, Emily, who will oc­ picket ship during the Bikini nu­ service is that it is like an extended cupy an important place in the clear tests, and served on a destroyer family. Everyone cares about every­ Robertsons' retirement agenda. of the United States Seventh Fleet, one else. I have found something Although he does have plans based in Tsingtao, China, during of the same experience here at to travel extensively to visit family the later stages of the Communist Duke." and friends, Durham and the Law revolution against the Nationalist Within days of his retirement School will continue to be Profes­ Chinese government. from the Navy, Professor Robertson sor Robertson's home port. He is Under Navy sponsorship, Pro­ had moved to Durham to teach at currently editing a book on the law fessor Robertson attended law school the Law School. Ken Pye was dean of naval warfare, and will continue at Georgetown University, receiving of the Law School at that time, and to have responsibilities vis-a-vis the his J.D. in 1953 after serving as editor­ he was instrumental in bringing Pro­ Panel on the Law of Ocean Uses, in-chief of the Georgetown Law Jour­ fessor Robertson to Durham. Writ­ the University of Virginia's Center nal. Having sailed smoothly through ing from his current position as for Oceans Law and Policy, and the law school, Robertson was assigned president of Southern Methodist Naval War College. As though that to legal duties in the Navy, and his University in Texas, Ken Pye recalls: were not enough, Professor Rob­ responsibilities steadily mounted. "I had no doubt that Robbie would ertson was recently appointed by En route to becoming the Judge be an excellent addition to Duke, Governor Martin to the North Caro­ Advocate General of the Navy, the bringing maturity and experience, lina Marine Science Council. It ap­ highest position attainable for a Navy as well as intellect, to the faculty. pears that Professor Robertson is attorney, Professor Robertson's ca­ He came as a visitor with no assur­ about to redefme the term "retire­ reer seems never to have had a dull ance of a permanent appointment, ment." moment. He was a member of the but the faculty quickly appreciated U.S. delegation to the first United the added dimension he could pro- Phoebe Kornfeld '90 DUKE LAW MAGAZINE / 48

Duke Hosts Sytnposiutn on the Constitution of Japan

The Constitution of Japan is of sity School of Law and Law and has ever had the participation of so special interest in the United States Contemporary Problems. Professor many leading Japanese law scholars because it was partially drafted by Nobuyoshi Ashibe (Gakushuin Uni­ in the same legal subject area." Luney Americans following Japan's surrender versity Faculty of Law and president recalls being jokingly told that if in World War II. In September, at of Koho Gakkai), Professor Yasuhiro anything had happened to the plane a conference entitled, "The Consti­ Okudaira (University of Tokyo In­ on which the Japanese scholars ar­ tution of Japan-The Fifth Decade," stitute of Social Science), Professor rived, he might have been labeled Japanese and American scholars re­ Kazuyuki Takahashi (University of a national criminal in Japan, as the viewed the development of consti­ Tokyo Faculty of Law), and Professor nation would have lost so many of tutionallaw in Japan during the Lawrence Beer (Lafayette College its leading constitutional law scholars. past four decades. The scholars ex­ Department of Government and Law) Each participant at the sympo­ amined how the 1947 Constitution assisted in planning this symposium. sium presented a paper and/or com­ had been woven into the general Funding was provided by the mented on a group of papers, and institutional framework of the Japan-United States Friendship Com­ those papers and comments will be Japanese traditionalist society. They mission, Japan Foundation, Duke published in a forthcoming edition also discussed how trends in Japa­ University's Asian-Pacific Studies of Duke's Law and Contemporary nese constitutional law development Institute, and the North Carolina Problems and later in book form. will indicate the future legal frame­ Japan Center. In addition, the Asia "This publication will probably be work in which businesses and the Foundation provided scholarships the most in-depth study of the Jap­ Japanese government ministries so that two young constitutional law anese Constitution ever done in must operate. scholars from Japan could attend English," says Professor Luney. The symposium was the culmi­ the symposium. "Hopefully it will be the first in nation of nearly two years of work Professor Luney stresses the sig­ a series on the Japanese legal system." and planning by visiting associate nificance of the symposium. "No Following Japan's surrender professor Percy R. Luney, Jr. and symposium on Japan in America in World War II and the subsequent was co-sponsored by Duke Univer- has ever had the participation of so occupation of Japan by the Allied VOL. 8, NO. 1 / 49

Forces, the Japanese government, of Japanese culture and de­ loans, since only the University of under the guidance of the General cisional hierarchies, is not Washington School of Law Library Headquarters and the Supreme Com­ difftcult to understand . . . and the Library of Congress have mander of the Allied Powers, adopted Given the customs, culture, copies ofJapanese caselaw. Professor a new constitution. As Duke law prior forms of government, Luney is assisting in the editing Professor William W Van Alstyne etc. historically in place in process. points out, this Constitution ofJapan Japan, to be sure, I do not Because of the number of inter­ "was partly imposed by General mean to brush over diffi­ national participants "this confer­ MacArthur, and not the 'natural' culties the courts of Japan ence took much more effort than product of Japanese tradition or may appreciate more than others in terms of preparation," re­ will." The Japanese Diet formally you and I (as arrogant, indi­ ports Janse Haywood, communica­ adopted the Constitution on May vidualistic westerners) might tions and conference coordinator 3, 1947, replacing the Meiji Con­ be inclined to do. Even so, at the Law School. "Not only were stitution of 1889. the pace of actual, engaged many of the attendees from Japan, MacArthur's staff, many of them constitutional law is, by any several visiting the United States for New Dealers, helped ensure that fair standard, still largely re­ the ftrst time, but the Japanese dele­ the Constitution of Japan had many latively "soft" constitutional gation remained in Durham for ftve law. (In countries more-or­ of the same features of the Ameri­ days." In order to make the foreign less dominated by a single can Constitution. The Constitution guests feel as welcome as possible, of Japan guarantees fundamental political party that also holds Ms. Haywood enlisted student mem­ human rights, establishes legislative a large national legislative bers of the Deans' Advisory Council supremacy, and delegates govern­ majority; this necessarily to greet and escort the symposium ment responsibility between the means that as judicial deci­ participants to the various social executive, legislative and judicial sions may apply the Consti­ events and campus tours. The stu­ branches of government. Not only tution in a manner that the dents were encouraged to socialize is the Japanese government charged dominant party dislikes, with the Japanese guests. Claude with the negative duty of refraining action is fairly easily taken Allen '90, president of the Duke from violating the enumerated rights simply to alter the Constitu­ Bar Association, recalls, "Having tion itself.) And I believe of its citizenry, but the Japanese gov­ taken courses in Japanese law, it ernment also has a positive duty the papers presented in the was a real thrill to meet the people to promote the economic and social symposium at Duke reflected whom I had quoted extensively" welfare of its citizens. Finally, Article this difference . . . Reaction to the symposium by 9, perhaps the most famous provi­ After four decades under the new participants has been favorable. Pro­ sion in the Japanese Constitution, Constitution, the Japanese people fessor Isao Sato of Tokai University, forever renounces war as a means have successfully made the transi­ the senior member of the Japanese of settling the nation's international tion to popular sovereignty and a delegation of scholars, wrote Dean disputes. democratic government. But Pro­ Pamela Gann that "the Symposium Following the symposium, Pro­ fessor Luney notes that while certain on Japan's Constitution was gen­ fessor Van Alstyne made the follow­ areas of Japanese law have devel­ uinely historic and very successful." ing observations: oped in the direction of American Professor Michael Young of Columbia It has many of the same fea­ law, striking differences, based on University writes, "Great conference. tures as our own [American] Japanese history, tradition and cul­ I couldn't believe the fuepower you Constitution, including a ture remain. These and other aspects recruited from Japan." Professor strong bill of rights set of of Japanese constitutional law, in­ John Haley of the University of wash­ provisions on personal lib­ cluding judicial review and the status ington called it "in terms of both erties and equal protection of the emperor, as well as the con­ substance and personal enjoyment, clauses ... temporary movement calling for the best symposium I have attended." My ftrm impression is revision of the Constitution, were In commenting on the recent that the Japanese Constitu­ thoroughly discussed and debated symposium, Dean Gann stresses tion does not yet de facto by the symposium participants. the beneftt of Duke's hosting such approach the equal status Now that the symposium is over, an event. "The Japanese academics of our Constitution, how­ the task of editing the papers for participating acquired ftrst-hand ever, partly because it was publication begins. According to knowledge of Duke University and imposed, and thus some Barbara Baccari '90, executive editor the Law School. This in turn will degree of domestic reluc­ of Law and Contemporary Prob­ be helpful in the recruitment and tance to credit it, within the lems, her staff is going to have to admission of Japanese students politics and administration rely extensively upon interlibrary to the].D. and LL.M. programs." DUKE LAW MAGAZINE / 50

Duke already has an expand­ Japanese Scholars Participating in the Symposium ing network of ties with Japan [see Nobuyoshi Ashibe, Gakushuin University Faculty of Law. Making the Japanese Connection, Hiroyuki Hata, Hiroshima University Faculty of Law DUKE L. MAG., Winter 1988, at 44], Yoichi Higuchi, University of Tokyo Faculty of Law including an active group of alum­ Taisuke Kamata, Doshisha University Faculty of Law ni. The thirteen Duke Law alumni Mutsuo Nakamura, Hokkaido University Faculty of Law currently living in Japan have formed Yasuhiro Okudaira, University of Tokyo Institute of Social Science the Tokyo Law Alumni Club. Hideyuki Akira Osuka, Waseda University Faculty of Law Sakai '82 is president of the group. Isao Sato, Tokai University Faculty of Law Koichiro Fujikura, professor of law Kazuyuki Takahashi, University of Tokyo Faculty of Law at the University of Tokyo and vis­ Hidenori Tomatsu, Seijo University Faculty of Law iting professor at Duke Law School, Noriho Urabe, Kobe University Faculty of Law serves as honorary president. Masahiro Usaki, Tsuru University Social Science Division The alumni in Japan have been Yoshiaki Yoshida, Meiji University Faculty of Law meeting regularly since 1986. Both Professor Luney and Taylor D. Ward '88 (who spent 1988-89 studying American Scholars Participating in the Symposium in Japan as a Fulbright scholar) have James E. Auer, Vanderbilt University Institute for Public Policy Studies served as guest speakers for the Lawrence Beer, Lafayette College Department of Government and Law group. Professor Paul D. Carrington B.J. George, New York Law School has been awarded a fellowship from John Haley, University of Washington School of Law the Japan Society for the Promotion Dan Fenno Henderson, University of Washington School of Law of Science, and will spend several Hiroshi !toh, SUNY-Plattsburgh Political Science Department months in Japan during the spring Percy R. Luney, Jr., Duke University School of Law of 1990. The Law School looks for­ Margaret McKean, Duke University Political Science Department ward to continuing and solidifying John Maki, University of Massachusetts, Emeritus its expanding ties with Japan. Mark Ramseyer, UCLA School of Law Frank Upham, Boston College School of Law Pamela L. Lohr '91 Michael Young, Columbia University School of Law VOL. 8, NO.1 I 51

Gifts to Duke LaW" School Lowndes Professorship Created

say that he more profoundly and beneficially influenced my profes­ sional development than anyone else I have known." Professor Shirnm also thanked John and Rita Lowndes "for endow­ ing this chair in [Charlie's] memory: It will forever link his name with an institution that he loved and in which he invested so much of him­ self, an institution that was such a vital part of his life and that he so importantly helped to shape and direct on the path to its current pre­ eminence in legal education. This seems so very right and proper." Dean Pamela B. Gann noted that "the establishment of this chair is very meaningful to the Law School community in so many ways. It recognizes and honors Professor Lowndes who was a distinguished member of the Law School faculty for thirty-three years. Professor Lowndes is widely and fondly re­ membered by our alumni as an im­ portant figure in their legal education, and they will learn of this profes­ sorship with great pleasure." John and Rita Lowndes Charles L.B. Lowndes was born in Puerto Rico in 1903, and gradu­ John F. Lowndes (T'53, t:58) and a record of achievement either at ated from Georgetown University. his wife, Rita A. Lowndes, have cre­ Duke Law School or at another in­ He received both his LL.B. and S.].D. ated a chaired professorship at the stitution. Nominations will be made degrees from Harvard University. Law School in honor of his father, by the dean of the Law School. After working briefly for a New York the late Charles 1. B. Lowndes. Income from the fund will be law firm, Lowndes served on the Charles Lowndes was a member added to the Lowndes' original gift law faculty at Georgetown Univer­ of the Duke Law faculty from 1934 of $452,510 until it reaches the $1 sity until coming to Duke in 1934. until his death in 1967, and was the million endowment goal for a Uni­ He served as acting dean of the Law first James B. Duke Professor of Law. versity chair. This gift will count School during 1949-50. The establishment of the chair was toward The Campaign for Duke, A nationally known scholar in announced at the Law School's an­ a University-wide fund-raising drive the field of federal taxation, Profes­ nual faculty dinner in September. to raise $400 million by the end sor Lowndes was the author of many Appointments to the chair will of 1991. It also counts toward the articles and books. In 1946 he was be made to recognize law professors Law School's $12.5 million compo­ one of six tax experts appointed who, at the time of their appoint­ nent goal of the Campaign. to study federal tax procedure, and ment, have made distinguished con­ During the ceremony announcing in 1950 he was a member of a special tributions to the legal profession the creation of the chair, Professor committee appointed to investigate through scholarship, teaching and Melvin G. Shimm praised Charles the administration of North Carolina service to the profession or its in­ Lowndes as "a good and great man courts. During his career he also stitutions. Candidates for the chair whom I was privileged to know taught at the University of North may be evaluated on the basis of and call a friend . . . I venture to Carolina, the University of Michi- DUKE LAW MAGAZINE / 52

gan, and the University of Florida. in the areas of real estate, tax and now serves as a member of the Law John Lowndes is the founding business law. He was graduated first School Board of Visitors and chairs partner of the Orlando, Florida law in his Law School class and was a its Major Projects Council. Rita firm of Lowndes, Drosdick, Doster, member of the editorial Board of Lowndes is an alumna of the Uni­ Kantor & Reed, where he specializes the Duke Law journal. Lowndes versity of Florida College of Law. Siegel Moot Court Competition Established In addition to practicing law, Allen Siegel teaches as a senior lec­ turer at the Law School where he annually offers a seminar in collec­ tive bargaining. Drawing upon the skills and knowledge he has acquired as a labor relations practitioner, Siegel engages his students in intensive examination of the various facets of the management-union relation­ ship and the dynamics of the nego­ tiating process. Mr. Siegel also annually funds the David H. Siegel Scholarship at the Law School, named in honor of his father. The Siegel Scholarship is given to upperclass students dem­ onstrating substantial need, high Rabbi Seymour Siegel achievement, and an outstanding Allen G. Siegel '60 will fund by a committee drawn from the potential for contribution to the legal an annual interscholastic moot court membership of the student Moot profession. competition at the Law School in Court Board under the supervision Rabbi Seymour Siegel was for honor of his late brother, Rabbi of a faculty adviser appointed by the forty-one years prior to his death Seymour Siegel, who died in Feb- the dean. Mr. Siegel will provide associated with the Jewish Theo­ ruary of 1988. Rabbi Siegel was a funding to support the Competi- logical Seminary in New York City, recognized scholar in the area of tion, including cash prizes to be first as a student and later as an in­ medical-legal ethics and an archi- awarded to the winning team, best structor and as the Ralph Simon Pro­ tect of contemporary Conservative brief, and best oralist. Mr. Siegel fessor of Ethics and Theology. Rabbi Jewish theology. Allen Siegel is a will also, in conjunction with asso- Siegel was also known as the "rab­ partner in the Washington, D.c. flrm ciates from his law firm, assist the bi of the neo-conservatives," forging of Arent, Fox, Kintner, Plotkin and Law School in the organization and close ties with the movement's major Kahn. management of the Competition by thinkers, like Irving Kristol, Michael The initial Rabbi Seymour Siegel drafting the problem, providing quali- Novak, and Norman Podhoretz. Moot Court Competition is sched- fied attorneys to review and grade In the 1960s, Rabbi Siegel par­ uled to be held in the spring of 1991 the briefs, assisting the Law School ticipated in civil-rights marches and and will comprise sixteen teams in obtaining distinguished judges rallies protesting the Vietnam War, from ABA-accredited law schools for the flnal round of competition, but he later came to believe that known to have active programs in and preparing bench memoranda unbridled liberalism was a threat the study of ethical issues, especially for the judges. to Jewish rights. He had close ties those intersecting medical-legal in- In announcing the Siegel Com- to several recent administrations, terests. Each school may send two petition, Dean Pamela B. Gann ex- and was appointed by President teams to the Competition, and the pressed the hope that it "will develop Reagan as the executive director of teams will be judged on both writ- rapidly into a very prestigiOUS com- the United States Holocaust Council. ten briefs and oral arguments. It is petition. We are delighted that Allen He spent two years organizing the anticipated that the Competition will Siegel wants to make such an event effort to build a memorial to the take place over a three-day period, possible at Duke, and I know that Holocaust victims in the nation's and will culminate in an awards our Moot Court Board will very capital. banquet for all participants and much enjoy the opportunity to host Although he became politically judges. the Competition. We are deeply grate- conservative, Rabbi Siegel was a re­ Within the Law School, the ful to Mr. Siegel for his exemplary ligious liberal within Conservative Competition will be administered and continued support of the Law Judaism. He headed the Committee School." VOL. 8, NO.1 / 53

on Jewish Law and Standards of research fellow at the Kennedy In­ In addition to his articles, books, the Rabbinical Assembly for more stitute for Bioethics at Georgetown and lectures, Rabbi Siegel spent many than a decade. He authored hun­ University and a visiting scholar hours answering the questions of dreds of articles and was the author at the Woodrow Wilson Center for rabbis across the country for whom of two books, 'Judaism and Jewish Scholars in Washington, nc. He he was the fmal authority on reli­ Law" and "God in the Teachings also served on the President's Com­ gious law: The Law School is hon­ of Conservative Judaism." He was mission on Ethics in Medicine and ored to host a competition honoring preparing a third book at the time Biomedical Research and on the such a distinguished scholar and of his death. AdviSOry Council of the Republican religious leader. Rabbi Siegel was a visiting senior National Committee. Fund Endowed to Honor Judge Snepp Friends, colleagues, and alumni that she plans to use the fund "to criminals and does not do enough of the Law School have established provide scholarship assistance for to protect victims of crimes. an endowment fund in honor of our students. Scholarship funds are Judge Snepp served as vice Judge Frank W. Snepp, Jr. '48. Judge a high priority for the School, and president of the North Carolina Bar Snepp retired as a Mecklenburg we are grateful that so many ofJudge Association in 1980, and that same County, North Carolina Superior Snepp's friends have chosen to honor year was president of the North Court judge in August 1989, after him in this way." Carolina Conference of Superior twenty-two colorful, and sometimes A Memphis, Tennessee native, Court Judges. During his career, he controversial, years on the bench. Snepp was elected to the North also served as chairman of the 1967 Solomon Levine '48 and Ben­ Carolina General Assembly in 1957, North Carolina Jail Study Commis­ jamin S. Horack '41 chaired a com­ where he established a reputation sion, as a member of the Bar Asso­ mittee in Charlotte to raise money as a voice for young conservatives. ciation's Penal Study Commission, for the fund to honor their friend He remained in state politics for and on the Commission on Correc­ and colleague. A total of $18,880 only four years, however. tional Programs and Rehabilitation. was raised from ninety contributors, In 1967, Snepp was fIrst elected A vocal advocate for fostering most of whom had no prior Duke to the Superior Court bench, where cooperation among the many agen­ connection, but rather were moved he quickly gained a reputation as cies that make up the legal system, to contribute to the fund by their an incorruptable and brilliant legal Snepp was quoted by the Associated strong affection and respect for scholar, with the courage to take Press as saying, "By yelling loud Judge Snepp. on controversial cases and make enough, you can get things done. Income from the fund will pro­ unpopular decisions. He was known Courts don't belong to judges. They vide unrestricted support to the Law for running a strict courtroom, and don't belong to lawyers. They be­ School, to be used at the dean's dis­ was often critical of the criminal long to the people." cretion. Dean Pamela Gann notes justice system, saying it coddles Baker & McKenzie Grant The Law School has received This year, Baker & McKenzie made group of firms) that establishes com­ a $5,000 scholarship grant from twenty grants to law schools to be parable annual assistance of at least the law fum of Baker & McKenzie allocated to fIrst-year minority stu­ $100,000 per year to support in­ through its Law Student Assistance dents. The grant received by Duke creased law school enrollment by Program. This program is part of was divided equally between two minority students at participating the fIrm's overall Equal Employment minority members of the Class schools. Opportunity Program, which con­ of 1992. The Law School hopes to par­ sists of a number of components, As a part of its program, Baker ticipate in the Baker & McKenzie including a series of efforts designed & McKenzie has challenged other law program in future years. According to increase the number of minority fums in the United States to join to Associate Dean Gwynn Swinson, applicatiOns to Baker & McKenzie them in providing scholarship assis­ "we believe we would be in a posi­ and to increase the proportion of tance to increase minority enroll­ tion to increase the enrollment of acceptances of offers. ment at national law schools. Baker minority students if more scholar­ Baker & McKenzie's Law Student & McKenzie will increase the funds ship funds were at our disposal. We Assistance Program is specifIcally it makes available from $100,000, truly hope that other law fIrms will designed to provide scholarship assis­ to a maximum of $200,000, in in­ follow the fme example set by Baker tance to law schools for the purpose crements of $10,000 for each pro­ & McKenzie." of increasing minority enrollment. gram adopted by another fum (or DUKE LAW MAGAZINE I 54

Estate Planning Conference Scholarship Endowment The Estate Planning Council of who was at that time an assistant dent of Central Carolina Bank & Duke University has recently created dean at the Law School. The Coun­ Trust Company in Durham. a permanent endowed scholarship cil's goals are to promote Duke Uni­ The Estate Planning Conference fund at the Law School. The Estate versity as a vehicle for giving and is a two-day event, usually held in Planning Conference Scholarship also to further the goals of the es­ the fall. It is co-sponsored by the Law was funded through a single cash tate planning profession. Members School, and features distinguished gift of $50,000, which represents of the Council include attorneys, speakers lecturing on topiCS such past proceeds from the Council's accountants, and development, bank­ as "Drafting for Generation Skipping Annual Estate Planning Conference. ing and University officers, many Transfers," and "Estate Planning in The scholarship is reserved for a of whom are graduates of Duke Uni­ the International Arena." The next third year law student with a par­ versity or the Law School. Norwood Conference will be October 11-12, ticular interest in estate planning, A. Thomas, Jr. (T'55) has served 1990. For information, contact Mr. and the first recipient will be named as Chairman of the Council since Roland Wilkins, Director of Planned in 1990. its inception, and spearheaded the Giving at the Duke Medical Center, The Estate Planning Council drive, together with Mr. Wilkins, at (919) 286-5557. was established in 1978, under the to establish the scholarship fund. leadership of Roland Wilkins '55, Mr. Thomas is a Senior Vice Presi- Professor DeMott Receives University Scholar/Teacher A-ward fields. . . . Her wealth of knowledge and intense interest in the subject matter stimulates her students to a depth of inquiry sometimes miss­ ing in other courses." Dean Gann further stressed that Professor DeMott "has established a preeminent reputation as a scholar in the fields of corporate law, securi­ ties regulation and fiduciary obli­ gation. Her treatise, Shareholder Derivative Actions, published in 1987, is the seminal work in that impor­ tant field of law." Professor DeMott's current writings have taken an inter­ national comparative approach to Deborah DeMott and H. Keith H. Brodie, M.D. takeover regulation, earning her a Fulbright Senior Scholarship at Professor Deborah A. DeMott dards of professional and personal Sydney and Monash Universities was named the recipient of the 1989 life. The award, which includes a in Australia in 1986. Duke University Scholar/Teacher $2,000 honorarium, was presented Professor DeMott stated that she Award at the Founder's Day Convoca­ to Professor DeMott by University is grateful for the support of her tion in December. The award, given President H. Keith H. Brodie. work by her Law School colleagues annually by the Board of Higher In nOminating Professor DeMott and the University generally. "I feel Education and Ministry of the United for the award, Dean Pamela Gann blessed to have work that I enjoy Methodist Church, honors a Duke noted that "she is particularly ver­ so thoroughly. I'm pleased that the faculty member for excellence in satile in her course offerings, teach­ award suggests the value of inte­ both teaching and research, recog­ ing not only contracts and legal grating teaching with scholarship." nized concern for students and col­ research and writing in the first­ Professor DeMott noted that she leagues, significant contributions year curriculum, but also advanced, will contribute a part of the $2,000 to the scholarly life of the Univer­ complex courses in the business, award to the Law School's Building Sity, and commitment to high stan- corporate, and securities regulation Fund. VOL. 8, NO.1 / 55

of over 200 with twenty-five to forty Charles H. Miller '34 students per quarter. By the time Miller retired, the Legal Clinic had Receives Murphy A-ward become the functional equivalent of a large law firm, with fourteen professionals, a nine-member sup­ port staff, one paralegal, and eight student clerkships with approxi­ mately seventy-five students per quarter, a caseload of over 6,000 per year and responsibility for all indigent legal services in Knox County. Gaede reported that, as one who obviously believes in a "hands on approach" to legal education, Miller claims as his favorite quote a para­ phrase from the medical profession: 'To study the phenomena of law in SOciety without books is to sail an uncharted sea, while to study books without clients is not to go to sea at all." Gaede, who had spoken with Marilyn Yarborough, dean of the University of Tennessee law School, reported that she knew of "no one Charles H Miller, Dean Pamela Gann, Nick Gaede who could be more deserving of such an award than Professor Miller." Charles H. Miller '34, professor Professor Miller, a law School She said, "Charlie Miller is first emeritus of the University of Ten­ classmate and close friend of Charles class. He has devoted his life to the nessee College of law, received the Murphy, was recognized for his life­ law and to public service. Many fifth annual Charles S. Murphy Award long dedication to two central lawyers, the Knoxville community during the law Alumni Association themes of the award-legal educa­ and legal education in general are meeting on October 21, 1989. Nick tion and public service. In present­ deeply indebted to him." Gaede '64, president of the Asso­ ing the award, Gaede noted that as In 1976, Professor Miller received ciation, presented Professor Miller founder and director of the Legal the Society of American law Teachers with a set of etched crystal bookends Aid Clinic at the University of Ten­ (SALT) Award which recognizes suc­ to commemorate the award. nessee, Professor Miller had devoted cessful innovators who have made The Murphy Award is presented his professional life to "providing significant contributions to the devel­ annually by the law School Alumni training and a sense of civic respon­ opment and reform of legal, gov­ Association to an alumnus of the sibility to law students and young ernmental or social institutions. He School who, through public service lawyers and to assuring that legal published widely, with special em­ or dedication to education, has aid and other services be provided phasis on legal aid clinics, and co­ shown a devotion to the common to those in need." authored with WE. Cole a book welfare, reflecting ideals exempli­ Charlie Miller, a native of Salis­ entitled, Social Problems, A Socio­ fied in the life and career of Charles bury, North Carolina, taught at Duke logical Interpretation. S. Murphy. Murphy was a 1931 grad­ from 1932 to 1946. He helped to Miller has been a long-standing uate of Duke University; he gradu­ found the Duke Legal Aid Clinic, member of the National Legal Aid ated from Duke law School in 1934, the first such clinic, and served as and Defender Association; the Na­ and received an honorary LL. D. its assistant director. In 1947, Pro­ tional Council of Legal Clinics; the from Duke in 1967. A native North fessor Miller joined the faculty at Knoxville Bar Association Commit­ Carolinian, Murphy died in 1983. Tennessee, where he founded the tees on Legal Aid and Legislation; During his career, he held several second legal aid clinic in the coun­ and the American Association of positions in the Truman, Kennedy, try, serving as its director from 1947- law School's Committee on Legal and Johnson Administrations. He 1975. When the clinic began, the Clinical Teaching. He has also served also served as a member of the law staff consisted of one full-time per­ as co-chair of the ABA Committee School's Board of Visitors and as son, one part-time assistant, and on Student Practices and vice-chair a University Trustee. one secretary handling a caseload of the Knoxville Legal Aid Society. DUKE LAW MAGAZINE / 56

Professor Miller also served in Health Association; and trustee of '37, retired justice of the Nebraska many leadership positions in his the Physicians' Medical Education Supreme Court; Gerald B. Tjoflat community. He was president and and Research Foundation. '57, who is presently the chief judge member of the Board of Directors Previous recipients of the Murphy of the United States Court of Appeals of the Council of Community Agen­ Award are Carlyle C. Ring, Jr. '56, for the Eleventh Circuit, and Gerald cies; director of the Family Service former president of the National T. Wetherington '63, chief judge Association of Knoxville; board mem­ Conference of Commissioners on of the 11th Judicial Circuit (Dade ber of the Knoxville Area Mental Uniform State Laws; Hale S. McCown County) Florida. Dukes Aw-ards go to Sgrosso and Keziah oughly enjoyed my undergraduate years and feel that Duke Law School prepared me extremely well for the practice of law." Perry Keziah received his Dukes Award from Trinity College for his service in numerous capacities. He has been chairman of the Alumni Admissions Advisory Committee and has assisted with class reunions and gift campaigns. He is a former High Point Alumni Chapter presi­ dent, president of the Class of 1952, co-chairman of the High Point Area S. Perry Keziah and Vincent L. Sgrosso Capital Campaign for Arts & Sci­ ences and Trinity Scholars Campaign, During Law Alumni Weekend Barristers after the weekend encour­ member of the Board of Directors ceremonies, Vincent L. Sgrosso (T'57, aging attendance at the next such of the Duke General Alumni Asso­ L'62) and S. Perry Keziah (T'52, L'54) event. ciation, member of the Trinity Schol­ were recognized as recipients of While serving as Barristers chair­ arship Selection Committee, member the Charles A. Dukes Award as de­ man, Sgrosso was also vice president/ of the General Alumni Association termined by the Duke University president-elect of the Law Alumni Executive Committee and director General Alumni Association. The Association and its governing body, of the High Point Duke Alumni Club. award is named for the late Charles the Law Alumni Council. In that A partner in the firm of Keziah, Gates A. Dukes, a 1929 graduate of Duke pOSition, he was responsible for and Samet, Keziah is particularly University and former director of chairing the nominating and awards proud of his involvement in mak­ alumni affairs, and is given annually committees. Sgrosso will be president ing High Point the first community to alumni who have gone "above of the Association during 1989-90, that each year offers a local high and beyond" the call of duty in and also recently began service as school student a full, four-year voluntary leadership roles. a member of the Law School Board scholarship to Duke. Nick Gaede '64, President of of Visitors. Keziah is also involved in many the Law Alumni Association, pre­ Sgrosso lives in Atlanta, where Law School activities. He is a mem­ sented Sgrosso, who was nominated he is vice president and general ber of the Barristers and is a class by the Law School, with a plaque counsel of BellSouth Advertising & agent. He served as reunion coordi­ commemorating the award. As only Publishing Corp. In addition to his nator for the Law Class of 1954 as the second person to hold the of­ service to the Law Alumni Associa­ they celebrated their 35th reunion fice of chairman of the barristers, tion and the Barristers, he is a mem­ in the fall . Sgrosso solidified this volunteer posi­ ber of other Duke groups, including Keziah sums up his volunteer tion for the Law School. The chair­ the Duke Atlanta Alumni Association, spirit by saying, '~tithetically to man handles all personal solicitation the Alumni Admissions Advisory our big city brethren at the bar, we activities for the Law School Bar­ Committee, and the Founders' So­ who are country lawyers find our­ risters throughout the annual fund­ ciety. He is also a trustee of the Pri­ selves with more time than money; raising cycle, and also presides over vate Adjudication Foundation. and volunteer work in Duke's ser­ Barristers Weekend festivities in the Sgrosso serves as a volunteer vice has been for me an appropriate spring. Last spring, at his suggestion, because he feels Duke has given means of satisfying my sense of Sgrosso sent personal letters to all something valuable to him. "I thor- obligation." VOL. 8, NO.1 I 57

Sgrosso Ne~ La~ Alutnni Association President

Sara Beale DBA Distinguished Teaching Award

Professor Sara S. Beale was Nick Gaede and Vincent Sgrosso voted the 1988-89 winner of the Duke Bar Association Dis­ During the Law Alumni Associ­ Alabama local alumni association tinguished Teaching Award. As ation meeting on October 21, 1989, and served as its first president. winner of the award, Professor A.H. (Nick) Gaede '64 passed the Gaede thanked the assembled Beale addressed the Class of presidency of the Law Alumni Asso­ alumni for the opportunity to serve 1989 during the ceremony ciation (LAA) to Vincent L. Sgrosso as president of the association and awarding degrees in May. '62. Sgrosso thanked Gaede for his acknowledged the increase in alumni Created in 1984, the Dis­ significant contributions to the Asso­ involvement with the Law School tinguished Teaching Award rec­ ciation and presented him with a and the Law School's heightened ognizes outstanding teaching gavel and stand to commemorate his efforts to communicate with alum­ by Law School faculty mem­ service. ni over the past few years. He com­ bers, and seeks to promote Gaede was a member of the mended Sgrosso to the group, citing student-faculty interaction and Law Alumni Council in 1985-86 his leadership of the Law Alumni awareness. Nominations for the when plans were being made to Council standing committees while award are made by current stu­ rejuvenate that body. Because of serving as president-elect. Gaede dents and the winner is selected his interest and leadership, he was also expressed his optimism for the by a committee of the Duke asked to assume the role of secretary­ continued vitality of the LAA under Bar Association. The recipient treasurer for 1986-87 and to rotate the leadership of Sgrosso and the is given $500 to use in the pur­ through the officer roles to the presi­ other new officers, Richard (Chip) chase of books for the Law dency. Gaede accepted the appoint­ Palmer '66, vice-president/president­ Library. A bronze plaque list­ ment, even though such service elect and Dara L. DeHaven '80, ing the award winners is on significantly extended his term on secretary-treasurer. display in the Law School lobby. the Council. In 1987-88, under the Gaede closed his term by chal­ Previous winners of the newly revised by-laws of the LAA, lenging the Alumni Association, the Distinguished Teaching Award Gaede, as vice-president, chaired local associations and all Law School are: 1984-85, Thomas D. Rowe, the two standing committees-awards alumni to strengthen their ties with Jr.; 1985-86, Richard C. Maxwell; and nominations-setting policy in the Law School and to help address 1986-87, James D. Cox; 1987-88, addition to conducting business for the fmancial burden of a Duke edu­ John C. Weistart. the year. While serving as an LAA cation by supporting the Law School's officer, Gaede also organized the fund-raising efforts. DUKE LAW MAGAZINE I 58 Alumni Activities

Class of 1933 Class of 1950 Class of 1957 William C. Lassiter has been William H. Adams, III has be­ Robert H. Beber was elected honored by the North Carolina Press come a chaired professor at the corporate vice president and direc­ Association by the creation of an George Mason University School of tor of litigation with W. R. Grace award bearing his name. The Wil­ Law in Arlington, Virginia. He will & Company in New York City. liam C. Lassiter First Amendment remain of counsel to his firm, Ma­ Gerald B. 1Joflat became the Award will be presented annually honey Adams Milam Surface & Chief Judge of the United States to an individual for contributions Grimsley, in Jacksonville, Florida. Court of Appeals for the Eleventh promoting and enhancing First Circuit on October 1, 1989. He has Amendment principles. Lassiter is Class of 1952 served as a circuit judge since 1975. the retired general counsel of the Charles A. Comer has retired as North Carolina Press Association. trust officer of American National Class of 1959 Bank & Trust Company in Chatta­ Leif C. Beck is now chairman of nooga, Tennessee. The Health Care Group in Plymouth Class of 1942 Meeting, Pennsylvania. William j. Lohr was recently Class of 1953 j. Terry Emerson is with the elected to the Baldwin-Wallace Col­ Wade H. Dickens, Jr: has retired firm of Sedam & Shearer in Fairfax, lege Sports Hall of Fame, having held from the practice of law with his Virginia. four records in track while a stu­ firm, Dickens & Dickens, in Buxton, dent. He was also given the Baldwin­ North Carolina. Class of 1960 Wallace Alumni Association Award Rufus s. Hill, Jr: has been named for meritorious service to the col­ Class of 1954 senior adjudicator of the Claims lege. Now retired, Wallace resides Vern D. Calloway, Jr: has been Group at the U.S. General Account­ in Siesta Key, Florida. named attorney general of the State ing Office in Washington, D.c. of Florida in Tallahassee. Class of 1947 S. Perry Keziah, Jr: was named Class of 1961 Matthew S. Rae, Jr: is serving a recipient of the Charles A. Dukes William liltes Manson is now as vice-chairman of the executive Award for outstanding volunteer ser­ a judge for the Durham County committee of the State Bar of Cali­ vice to Duke University. (See story District Court. fornia Conference of Delegates for on p. 56.) Llewelyn G. Pn'tchard has joined 1989-90. the firm of Helsell Fetterman Martin Kenneth F Wooten, Jr: has re­ Class of 1955 Todd & Hokanson in Seattle. tired from the practice of law with Clarence W (Ace) Walker was the firm of Bailey, Dixon, Wooten, elected an assembly delegate for Class of 1962 McDonald, Fountain & Walker in District Five of the American Bar Allen G. Burgoyne has opened Raleigh. Association during its annual meeting a private law practice in Pelham, in August 1989. Walker is a partner New York. in the firm of Kennedy Covington Thomas M. Davidson is now Class of 1948 Lobdell & Hickman in Charlotte. a partner in the New York firm of Edward L. Meadows has retired William L. Woolard was sworn Lidell, Sapp, Zivley, Hill & LaBoon. from the claims department of Nor­ in as international president of the Johnie L. Joyce, Jr: retired from folk & Western Railway Company Lions Club, a worldwide organiza­ the Federal Bureau of Investigation in Roanoke, Virginia. tion dedicated to helping the blind in May of 1989. In June, he became Frank W Snepp, Jr: retired in and visually impaired, in June. He chief of security for the Texas Med­ August 1989 as a judge on the Meck­ is a partner in the Charlotte firm ical Center in Houston. lenburg County, North Carolina Su­ of Jones, Hewson & Woolard. Vincent L. Sgrosso was named perior Court. A scholarship fund has a recipient of the Charles A. Dukes been established at the Law School Class of 1956 Award for outstanding volunteer in his honor. (See story on p. 53.) Lloyd C. Caudle has been re­ service to Duke University. (See Frederick H. Stone recently re­ elected for an additional term of story on p. 56.) tired as general counsel and senior service to the Duke University Board vice president of The Franklin Life of Trustees. He is a founding part­ Class of 1963 Insurance Company in Springfield, ner of the Charlotte firm of Caudle John B. Gordon was named Illinois. & Spears. outstanding lecturer in the North VOL. 8, NO. 1 I 59

Carolina State University College Thomas A. Edmonds has stepped Class of 1967 of Humanities and Social Sciences, down as dean of the University of john T. Berteau, a partner in where he teaches business law. Mississippi School of Law to become the Sarasota, Florida fIrm of Williams, ]. Thomas Menaker, and his executive director and chief oper­ Parker, Harrison, Dietz & Getzen, wife, Bonnie, have both left their ating officer of the Virginia State served as a lecturer to the Florida law practices in Harrisburg, Penn­ Bar, headquartered in Richmond. Bar during its advanced estate plan­ sylvania and set sail on their 42-foot jerome W Gerde is serving as ning series from March to May, 1989. boat to become "cruisers." They chairman of the Bay County, Florida Clyde A. Burkhardt has joined will live aboard 'The Star' and sail Republican Executive Committee. Bedford Capital in New York City. from port to port! Along the way, Lawrence W Klute has been Col. Norman G. Cooper is serv­ they'll do some work for Green­ named general counsel of Duncan ing as judge advocate to the United peace and the Cousteau Society by Aircraft Sales of Florida, Inc. in Nations Command, U.S. Forces Korea tracking Gulf Stream currents and Venice, Florida. and 8th U.S. Army, ROK, the senior checking for pollution in water james P (Pat) Piper has joined military lawyer in Korea. samples. the Law Offices of Windle Thrley William Lyman Dillon has in Dallas. joined the Atlanta office of Jones, Class of 1964 Edan G. Unterman is now gen­ Day, Reavis & Pogue. Samuel P Bell, III is a partner eral counsel of Kajima International, Robert]. Hackett became a di­ in the Tallahassee, Florida law firm Inc. in Fort Lee, New Jersey. rector of the fIrm Fennemore Craig of Cobb, Cole & Bell. Robert]. Stanton is president in Phoenix on July 1, 1989. He con­ Girard E. Boudreau, jr. is now of Refraction Corporation in Newark, centrates in the corporate and securi­ regional managing partner in the New York. ties law area. Atlanta office of Jones, Day, Reavis Rev. Stephan E. KlingelhoJer is & Pogue. now serving as Rector of St. Luke's Anthony F Sauber was pro­ Episcopal Church in Kalamazoo, moted in May 1989 to executive vice Michigan. president, Business and Legal Affairs Class of 1966 F Sherwood Lewis continues in of MCA Recreation Services, a divi­ Bruce H. Anderson has been private practice as a sole practitioner sion of MCA, Inc., in Universal City, selected the fIrst president and man­ with offices in Vienna, Virginia and California. aging partner of his ten-attorney Washington, D.c. Ted R. Todd is a judge for the fIrm, Hutchinson, Anderson, Cox, Robert E. Sheahan, jr., who prac­ Fifth Judicial Circuit of Indiana in Parrish & Coons in Eugene, Oregon. tices labor, employment and envi­ Madison. He practices in the areas of business ronmentallaw in High Point, North Edward A. Vrooman was ap­ and international law, land use, and Carolina, has recently purchased pointed by Governor Cuomo of New environmental law. a Florida company, Wine Concepts, York to the Board of the Metropoli­ jonathan T. Howe, senior partner Inc., a "wine-of-the-month" club. tan Transportation Authority, the and president of Howe & Hutton Sheahan serves as editor of World nation's largest transportation agency. in Chicago, has recently co-authored oj Personnel magazine, on the board Vrooman is a partner at the fIrm of the "Injunctions" chapter for the of editors of Employee Testing and Olwine, Connelly, Chase, O'Donnell 1989 supplement to Chancery and the Law, and is a contributing author & Weyher. Special Remedies, published by the of The Developing Labor Law, pub­ Illinois Institute for Continuing Legal lished by ABA-BNA. Class of 1965 Education. Lanty L. Smith, chief executive jonathan L. Alder has become T. William Porter; III, founding officer of Precision Fabrics, Inc. of a shareholder in the Dallas firm of partner of the Houston fIrm of Porter Greensboro, North Carolina, has Locke Purnell Rain Harrell and heads & Clements, was recently elected been elected to the Board of Direc­ the fIrm's labor section. He will re­ to the Executive Committee of the tors of Wittenberg University. main of counsel to Alder, Cohen Alley Repertory Theatre Company & Grigsby, the fIrm he founded in and is co-chair of its corporate cap­ Pittsburgh in 1981. Alder specializes ital funds drive. He is also a mem­ in representing management in labor ber of the board of the Houston Class of 1968 issues in the health-care industry. Business Arts Fund, a consortium Robert Frey has been named Charles G. Campbell is now of major corporate donors to the president of Whirlpool do Brazil, with the labor relations division of arts in Houston. S.A., a wholly owned subsidiary Morning Star Foods, Inc. of Dallas. Douglas P Wheeler has been of Whirlpool Corporation. He will Patrick C. Couglan is president appointed executive vice president also remain an elected vice president of Resolve Disputes, Inc. in Port­ of The Conservation Foundation of Whirlpool. He and his family land, Maine. of Washington, D.C. have moved to Sao Paulo, Brazil. DUKE LAW MAGAZINE /60

james J Kendig has joined the john A. DeFrancisco has written Moore & Van Alien, where he prac­ Nashville, Tennessee fIrm of Waller, and published a book entitled What tices in the areas of tax and estate Lansden, Dortch & Davis. Happened to This Child? The Golden planning. William P Pinna has been ap­ Murder Case, an account of a highly Sherrie Lavine Krauser was pointed chair of the Asset and Invest­ publicized murder case in Syracuse, sworn in as a judge of the District ment Management Committee of New York, where he practices civil Court of Maryland on August 3, the Law Practice Management Sec­ and criminal litigation. DeFrancisco 1989, becoming the fIrst woman tion of the American Bar Association. is also an adjunct professor at Syra­ in the United States to serve on the cuse University College of Law. same bench as her mother. Class of 1969 Karla Harbin Fox has been William L. Kurtz has joined the E. Victor Roberts has become named associate dean of the Uni­ fIrm of Fennemore Craig in Phoenix. a partner at Neely & Player in Atlanta. versity of Connecticut School of G. Thomas Love, III is a princi­ Young M. Smith, jr. is now a Business Administration. pal in the Memphis, Tennessee fIrm sole practitioner in Hickory, North Randolph J May has been ap­ of Mercer, Meidinger, Hansen. Carolina. pointed chairperson of the Common Roy R. Robertson, jr. has become Carrier Committee of the Federal of counsel in the Chicago offIce of Communications Bar Association. Ross & Hardies, where he concen­ Class of 1970 Bryan E. Sharratt has been trates in energy law and regulation. Victor A. Cavanaugh is now elected vice president of the Board Lawrence J Rosen was elected a partner at Elarbee, Thompson of Trustees of the University of in November to a ten-year term as & Trapnell in Atlanta, specializing Wyoming. a judge on the Albany, New York in labor relations law. City Court. He had served as a part­ james K. Hasson, jr. was recently Class of 1972 time city judge since 1985. elected director of the Foxflre Fund Robert B. Breisblatt has become and a trustee of Reinhardt College a partner in the fIrm of Welsh & in Waleska, Georgia. Hasson is a Katz in Chicago. Class of 1974 partner at Sutherland, Asbill and joseph E. Claxton has returned Kenneth P Adler has opened a Brennan in Atlanta. to the full-time faculty of the Mercer computer consulting business, con­ William F Robinson, jr. has re­ University School of Law, after serv­ centrating on consulting for the legal cently joined the legal department ing as vice president for executive community. He also maintains his of Data General Corporation in West­ administration of Mercer University. private law practice in Sandpoint, boro, Massachusetts. Rebecca Thacher Halbrook has Idaho. J Allen Walker has assumed the recently joined the legal department joel K. Belway has joined the duties of judge of the General Dis­ of Revlon, Inc. in New York City. San Francisco fIrm of Stanton, Kay trict Court, 20th Judicial District, Laura J G. Long has been named & Watson. sitting in Leesburg, Virgina. a partner in the Research Triangle Ronald Van Chernak is presi­ Robert F ~aver, jr. has retired Park, North Carolina offIce of Moore dent of business properties for First from the practice of law in Colum­ & Van Alien, where she concentrates Business Brokers, Inc. in Colorado bus, Ohio to pursue a career as a in business law. Springs. charter boat captain, sole practitioner Glen A. Payne has been named james R. Eller, jr. has joined the and teacher in Mississippi. In the vice president and general counsel fIrm of Charlston, Revich & Williams spring of 1990 he plans to sail from of Financial Programs, Inc., invest­ in Los Angeles. Annapolis to Bermuda and the Ba­ ment adviser and distributor of no­ Stephen L. Elliott has opened his hamas before returning to Biloxi. load mutual funds in Denver. own offIce for the practice of law in Roswell, New Mexico. Class of 1971 Class of 1973 Thomas E. Mclain has become Arthur A. Abplanalp, jr. is serv­ B. Bernard Burns, jr. was re­ a partner in the merchant banking ing as vice-president and member cently appointed vice president and fIrm of Alfred Checchi Associates, of the executive committee of the associate general counsel of AMCA Inc. in Los Angeles. Colorado Bar Association for 1989- International, a diversilled manufac­ Dean A. Messmer is now the 90. He is a shareholder in the fIrm turing and engineering company managing partner of Lasher, Holzapfel, of Earl, Baird & Williams in Vail. which has relocated its headquarters Sperry & Ebberson in Seattle. His Sylvia L. Beckey has returned to Charlotte. practice centers on commercial liti­ to private practice with the New York C. ~lls Hall, III has been named gation and representing creditors City fIrm of Sheft & Sweeney. to the Board of Governors of the in bankruptcy. Holly N. Brandstetter is now North Carolina Bar Association for C. Richard Rayburn, jr. an­ counsel for the Monsanto Company a term to expire in 1992. He is a nounces the opening of the fIrm in St. Louis, Missouri. partner in the Charlotte offIce of Rayburn, Moon & Smith in Charlotte. VOL. 8, NO. 1 / 61

lecturer in justice and policy studies. The Resource Center has received contracts to staff jail over-crowding studies in four North Carolina counties. Gary G. Lynch has become a partner at the New York City law firm of Davis Polk & Wardwell. Linton L. Moyer is the co-editor of the Pennsylvania Bar Association Workers' Compensation Newsletter. He is a partner in the Pittsburgh firm of Thomson, Rhodes & Cowie. Lee G. Schmudde has been named director of governmental affairs at the Walt Disney World Company in Orlando. William J Trull, Jr. has just com­ G. Gray Wilson '76 pleted a year as president of the Family Services Center in Asheville, of New Jersey District X Ethics Com­ Donald W. Wallis '74 North Carolina. mittee for 1989-90. Debra J Stuart is now assis­ Irwin N. Rubin has joined the Class of 1976 tant United States attorney for the fIrm of Gilvert, Segall & Young in David B. Adcock was appointed Southern District of Florida in Miami. New York City. inJuly 1989 as counsel to Duke Uni­ J Alexander Tanjord has been Ira Sandron has been named versity, the school's top legal officer. appointed the Ira e. Batman Fac­ co-chair of the Immigration Com­ Michael R. Casey has opened ulty Fellow at Indiana University mittee of the Federal Bar Association. the firm of Casey and Molchan in School of Law in recognition of his Brett A. Schlossberg has estab­ Ft. Lauderdale, Florida. contribution to scholarship. lished the firm of Schlossberg & Michael G. Culbreth has been G. Gray Wilson has written a AsSOCiates, P.e. in Berwyn, Pennsyl­ named director of employee relations two-volume treatise, North Carolina vania. The firm practices primarily of the Federal Paper Board Co., Inc. Civil Procedure, published by The in the areas of domestic and inter­ in Reiglewood, North Carolina. Michie Company. Wilson is an at­ national corporate law. Winjord R. Deaton, Ir. entered torney in the Winston-Salem firm Phil Sloan was appointed to the into his own law practice in January of Petree, Stockton & Robinson, New York State Board of Equaliza­ 1989 in Shelby, North Carolina. where he practices in tort and in­ tion and Assessment, which estab­ Daniel J Dugan has been named surance litigation, products liability lishes policy with respect to real a partner at Spector Cohen Gadon and avaiation law, as well as com­ estate tax assessment. & Rosen in Philadelphia. mercial and tax litigation. Mary Ann Tally has been named Ralph B. Everett has become Allan D. Windt announces the president-elect of the North Carolina a partner in the Washington, D.e. opening of the Law Offices of Allan Academy of Trial Lawyers. She will office of Paul, Hastings, Janofsky Windt in Philadelphia. take office on July 1, 1990. She is & Walker, where he will head the public defender for the state's 12th firm's legislative practice. Class of 1977 Judicial District in Fayetteville. Lewis E. Melahn has been nomi­ Mary S. Burnett is now senior Donald W Wallis has joined the nated by the Governor of Missouri trial attorney, International Trade Jacksonville, Florida office of Hol­ to serve as director of the Division Field Office, Commercial Litigation land & Knight as a tax partner. of Insurance. Branch of the U.S. Justice Depart­ Stephen E. Roady has been ap­ ment, located in New York City. Class of 1975 pointed counsel to the minority staff Luis A. De Armas has been ap­ Juhn A. Howell has joined the of the Senate Committee on Envi­ pointed administrative partner of the Washington, D.e. office of Ross ronment and Public Works. He has Miami office of Shutts & Bowen, & Hardies. responsibility for legislation pertain­ where he specializes in corporate, John R. Kernodle, Jr. has been ing to Superfund, federal facility banking and securities law. named executive director of the clean-up, and the Toxic Substance Judith L. Harris, an attorney Community Justice Resource Center Act. with GTE Service Corporation, has at Guilford College in Greensboro, Aron M. Schwartz is serving relocated from Stamford, Connecti­ North Carolina, where he is also a as the chair of the Supreme Court cut to the Los Angeles office. DUKE LAW MAGAZINE I 62

Susan Freya Olive is serving Class of 1979 H. Michael Pyles has been named during 1989-90 as chairman of the Louis J Barash has been named manager of human resources for North Carolina Federal Bar Advisory director of Merill Lynch Capital the General Electric Aircraft Engine Council, as chairman of the NCBA Markets in New York City. Group in Evendale, Ohio. Technology & the Law Committee, Alan R. Bender has been pro­ Scott H. Raskin is now general and as treasurer of NC Prisoner Legal moted to the position of vice presi­ counsel of Trammell Crow Ventures Services, Inc. dent of product development at in Dallas. J Wilson Parker, professor Equitec Financial Group, Inc., a di­ Carl J Schuman was appointed of law at Wake Forest University versifIed financial services company assistant United States attorney for in Winston-Salem, was recently rec­ in Oakland, California. the District of Connecticut in New ognized by the North Carolina Acad­ Mark G. Burnette has joined Haven in June 1989. emy of Trial Lawyers for special the Decatur, Georgia fum of Weekes Denise Majette ~lch has been service to student advocacy: & Candler. elected vice-president/president­ Robert L. Pettit has joined the Claudia A. Carver has been elect of the DeKalb Lawyers Asso­ Federal Communications Commis­ elected to the Board of Governors ciation, DeKalb County, Georgia. sion in Washington, D.c. of the State Bar of California. She is She has also formed a partnership Ember D Reichgott, a state sen­ a partner in the Los Angeles offIce for the practice of law, Jenkins, Nel­ ator in Minnesota, has been selected of Paul, Hastings, Janofsky & Walker son & Welch, in Atlanta. by the American Council of Young and is an offIcer and trustee of the J William Widing, III is now Political Leaders as one of a ten­ Los Angeles County Bar Association. with the Reading, Pennsylvania fum member bipartisan delegation to jeffrey c. Coyne has joined, as of Stevens & Lee. Taiwan and Hong Kong, under the a partner, the Los Angeles offIce William T. Wilson has become a group's political leader exchange of Coudert Brothers. partner in the fIrm of Legg, Wilson & program. joel H. Feldman has joined the Smith in West Chester, Pennsylvania. Kim William ~st has founded fum of Friedman, Mallinger & Brown Rhonda Reid Winston has joined the law fIrm of Radcliff & West, with in Boca Raton, Florida. the Pre-Trial Service Agency in Wash­ offIces in Los Angeles, Honolulu, Richard C. Finke has been named ington, D.c. She is a member of and Washington, D.c. senior litigation counsel for W R. the Law School's Board of Visitors. john E. Zamer has joined the Grace & Company in New York Atlanta offIce of Jones, Day, Reavis City. Class of 1980 & Pogue. Herman A. Gailey, III announces Edwin R. Acheson, jr. has joined the opening of the law fIrm of the fIrm of Frost & Jacobs in Cin­ Class of 1978 Katherman Martz & Gailey in York, cinnati, Ohio. Benita S. Baird has been named Pennsylvania. Roger J Bagley has been named deputy general counsel of news and janis Caplan Gordon is now an a partner at Hawkins, DelafIeld & operations of Thrner Broadcasting attorney with McKenzie & McPhail Wood in New York City. System, Inc. in Atlanta. in Atlanta. Ellen jane Bickel is now a part­ john Hasnas has been named Benjamin C. Kirschenbaum has ner at Emmet, Marvin & Martin in a law and humanities fellow at the joined Towers Properties Limited New York City. Temple University School of Law of Stamford, Connecticut. Robert A. Carson is a partner at in Philadelphia. David W. Matson has been named the Chicago fIrm of Gould & Ratner. Marilyn Hoey Howard has been general counsel of Sprint Services Kyle A. Citrynell has become promoted to commercial group in Overland Park, Kansas. a partner in the law fum of Hand­ counsel of the semiconductor sec­ D Duncan Maysilles is now with maker & Citrynell, with offIces in tor of Harris Corporation in Mel­ the Intervarsity Christian Fellowship Louisville and Paris, Kentucky. She bourne, Florida. of Decatur, Georgia. He serves as recently authored the chapter on Wendy Collins Perdue has been campus minister at Emory Univer­ the Federal Communications Com­ promoted to associate professor at sity and Georgia Tech. mission for West's Federal Practice the Georgetown UniverSity Law Gray McCalley, jr. has joined Manual, and frequently lectures and Center. The Coca-Cola Company in Atlanta, writes on the subjects of copyright, Robert D Phillips has joined Georgia. trademark and unfair competition. the fIrm of Bowles & Verna in Wal­ Mark S. McCarty is now with J Lawrence Crocker is now an nut Creek, California. the fIrm of Artchison, Snyder & associate professor at the New York Sarah Holzweig Steindel is now Hoag in Seattle. University Law School, teaching with the fIrm of Rabner, Allcorn & Mary Susan Philip was named crimina1law, torts and jurisprudence. Widmark in Upper Montclair, New a partner in the Washington, D.c. Shirley L. Fulton has been elected Jersey. fIrm of Powers, Pyles & Sutter. to serve an eight-year term as resi- VOL. 8, NO. 1 / 63

dent superior court judge for District Paul J Pantano, jr. has joined 26A in Charlotte, North Carolina. the Washington, D.C office of Barry A. George is the tutorial McDermott, Will & Emery. coordinator for Peirce Junior Col­ Genevieve Harris Roche has be­ lege in Philadelphia. come assistant general counsel of Gregory M. Gordon has been Touche Ross & Company in New named a partner at the Dallas office York City. of Jones, Day, Reavis & Pogue. Anita W Schoomaker has been Mary Metil Grove is a partner admitted to partnership in the firm at the Richmond, Virginia firm of of Morgan, Lewis & Bockius. She Christian, Barton, Epps, Brant & is a member of the firm's labor and Chappell. employment law section in Wash­ james P Holdcroft, jr. was ington, D.C, where she represents elected executive vice president management clients in the private and chief fmancial officer of Man­ and public sectors. hattan Savings Bank in New York Michael W Smith has become City. a partner in the New York City of­ S. William Richter '81 Michael W jorgensen joined the fice of Bryan, Cave, McPheeters firm of Bracewell & Patterson in its & McRoberts. Jack D. Kearney was recently newly-opened Dallas office as a part­ Michael S. Thwaites has joined promoted to vice president in the ner in the corporate law area. the firm of Ogletree, Deakins, Nash, Corporate Finance Department of Douglas P Lambert has become Smoak & Stewart in Greenville, South Robinson-Humphrey Co. Inc. in a member of the firm of Fleming, Carolina. Atlanta. Haile & Shaw, resident in the North Bruce P Vann became a partner Nancy Holland Kerr is now Palm Beach, Florida office. in the Los Angeles office of Keck, counsel to the Law Office of John aifford B. Levine has been named Mahin & Cate, where he continues E. Ford in Irvine, California. a litigation partner at Thorp, Reed to practice in the corporate and Craig B. Merkle has joined the & Armstrong in Pittsburgh. securities area, with an emphasis firm of Goodell, DeVries, Leech & Claire L. Moritz has been named on entertainment industry clients. Gray in Baltimore. vice president of legal services for Elizabeth M. wt>aver has been James A. Pope has recently com­ the Wake County Hospital System, named a partner in the firm of pleted his first session as a representa­ Inc. in Raleigh. McKenna Conner & Cuneo in Los tive to the North Carolina General Robert Patrick Murphy is now Angeles. Assembly. with Proskauer Rose Goetz & Men­ S. William Richter has been delsohn in Washington, D.C Class of 1981 elected to partnership in the firm Marshall S. Adler announces of Reed Smith Shaw & McClay. He the opening of the firm of Adler is resident in the firm's Philadelphia & Strickland in Orlando. office and his practice is devoted to Nancy T. Bowen is a student business and fmance matters, with at the Georgetown University Law an emphasis in banking law and Center, where she is pursuing an municipal fmance law. LL.M. degree. Susan Peters Rosborough has Diana S. Deane is now with been named associate counsel at the Princeton, New Jersey office Allstate Insurance Company in North­ of Drinker, Biddle & Reath. brook, Illinois. james A. Fieber has been elected Michael L. Ward has joined managing partner of the Fieber Showtime Networks, Inc. in New Group, a real estate development York City. firm located in Wilton, Connecticut. Steven M. Zeidman is now acting David D. Gustafson became as­ assistant professor of clinical law at sistant section chief in the Tax Divi­ the New York University School sion of the United States Department of Law. of Justice in March of 1989. Leigh H Hopkins received his Class of 1982 M.D. from Johns Hopkins University josie A. Alexander is now an in 1989 and is now an orthopaedic associate at Jackson, Lewis, Schnitzler Anita W Schoomaker '80 surgeon in Richmond, Virginia. & Krupman in Atlanta. DUKE LAW MAGAZINE / 64

Wade E. Ballard has joined the nar was sponsored by the Indiana Deposit Insurance Corporation in firm of Edwards, Ballard, Bishop, Continuing Legal Education Forum. Washington, nc. Sturm & Clark in Spartanburg, South James L. Lester has moved to 1. Scott Sokul is serving as political Carolina. Greensboro, North Carolina to prac­ and field director for Florida State Gary L. Beaver has left the U.S. tice with Patton, Boggs & Blow. Senator George Stuart (D-Orlando) Marine Corps, and is now with the Ann L. Majestic has been named who is running for the Democratic firm of Patton, Boggs & Blow in a partner in the Raleigh firm of Thar­ nomination for governor. Greensboro, North Carolina. rington, Smith & Hargrove, where M. Jayne Wright is now an assis­ Bernard H Friedman has formed she specializes in education law. tant attorney general in the Office the firm of Talmadge & Friedman Robert W Mann, Jr. became of the Attorney General in Baltimore. in Seattle. The firm concentrates a regional attorney for the National on appellate practice, state and local Association of Securities Dealers, government law, and securities Inc. in Atlanta in December 1989. Class of 1983 litigation. He prosecutes securities violations William A. Blancato has been Peter W Goodwin has been internally for the NASD, a self­ named a partner in the law firm of named counsel to Mobil Explora­ regulatory agency. Hendrick, Zotian, Cocklereece and tion & Producing, U.S., Inc. in Elizabeth Roth has joined the Robinson in Winston-Salem, North Houston. Palo Alto, California firm of Wilson, Carolina. Fern E. Gunn was recently ap­ Sonsini, Goodrich & Rosati as a part­ Angela D. Davis has become pointed chair of the Minorities in time litigator with a labor and em­ associated with the firm of Winstead, the Profession Committee of the ployment specialty. McGuire, Sechrest & Minick in North Carolina Bar Association. She Steven A. Schneider has joined Houston. is employed as a deputy counsel the firm of Johnson & Gibbs in Robert P. Fletcher has become at the North Carolina State Bar in Dallas. a partner in the Washington, nc. Raleigh. A. Bradley Shingleton has be­ office of Hopkins & Sutter. Richard R. Hofstetter was a come an associate at the Washing­ Seth L. Forman has become an panelist at a seminar on "Interna­ ton, nc. office of McGuire, Woods, associate at Keogh and Butler in tional Trade: Advising Export Clients Battle & Boothe. Agana, Guam. and Protecting Clients Abroad" in Sharon Powers Sivertsen is now Daniel M. Gray is now an at­ October in Indianapolis. The semi- a senior attorney with the Federal torney for the United States Securi-

Federal Bar Association Banquet The Honorable Robinson 0. Everett '59, Chief Judge of the Military Court of Appeals (third from left), met with some of his former Duke law students during the Federal Bar Association Annual Con­ vention in August. From left are: Cleveland C. Gambill '75, Assistant U.S. Attorney in Louisville; Garrett E. Brown, Jr. '68, Federal District Judge in Newark; Judge Everett; Ira Sandron '75, of the Immigration & Naturalization Service; Ned P Everett '51, a realtor in Arlington, Virginia; Amos T. Mills '72, now an FBI agent; and Robert C. Mueller '71, who is on the staff of the Court of Military Appeals. VOL. 8, NO. 1 / 65

ties & Exchange Commission in Diane E. Katz has joined the janet Ward Black has become Washington, D.c. fIrm of Moot & Sprague in Buffalo, a partner in the fIrm of Wallace, Eileen S. Hoffner has joined the New York. Whitley, Pope & Black in Salisbury, Office of Steven S. Siegel in Cedar­ Paul]. Levenson is now with North Carolina. hurst, New York. the firm of Widett, Slater & Goldman Allan A. Capute has joined the Sally Sharp Reilly has become in Boston. Office of the General Counsel of a corporate attorney for Southern Karen Brumbaugh Mozenter the Securities & Exchange Commis­ Progress Corporation in Birmingham, has been named associate for legal sion in Washington, D.c. Alabama, a subsidiary of Time, Inc. affairs at The Ohio State University. john L. Charvat, jr. has been Magazine Company. Peter Petrau is with the fIrm of promoted to major in the United Per Haakon Schmidt, an attorney Cuyler, Burk & Matthews in Morris­ States Army. in Copenhagen, Denmark, has pub­ town, New Jersey. Anne W Claussen has joined lished Teknologi og immaterialret, julie Meister Pinke is now a sales the Office of the Treasurer of the an intellectual property text. specialist with West CD-ROM in New State of Florida in Tallahassee. Stephen L. Spector has joined York City. jonathan B. Ealy is now with the MaceRich Company in Santa Briget M. Polichene was recently the Anchorage, Alaska office of Heller, Monica, California. promoted to deputy general counsel Ehrman, White & McAulliffe. Kathleen A. Wechter is now with of the United States House Banking Randy M. Friedberg has become the New York City fIrm of Fried, Committee. an associate at Townley & Updike Frank, Harris, Schriver & Jacobsen. David P Rhodes has become in New York City, where he spe­ john R. Welch has joined Chevron an associate in the Tampa, Florida cializes in trademark and copyright Overseas Petroleum, Inc. in San law fIrm of Glenn, Rasmussen, counseling and litigation. Ramon, California. Fogarty, Merriday & Russo. Chama L. Gerstenhaber has Rebecca Strawn Wilson is now Steven M. Samaha has been joined the flfffi of Brown & Wood an attorney in the Office of the Chief named a partner in the Tampa, in New York City. Counsel, Employee BenefIts & Ex­ Florida firm of Annis, Mitchell, Paul M. Green is an attorney for empt Organizations of the Internal Cockey, Edwards & Roehn. North Carolina Prisoner Legal Ser­ Revenue Service in Washington, D.c. Captain jeffrey A. Stonerock is vices, Inc. in Raleigh. David A. Zalph has been named now a trial attorney in the Contract Arthur]. Howe has recently co­ a shareholder in the flrm of Moore, Appeals Division of the U.S. Army, authored the "Failing Bank Litigation" Farmer, Menkhaus & Juran in Boca stationed in Falls Church, Virginia. chapter for the 1989 supplement to Raton, Florida. He received his LL.M. degree in Advising Illinois Financial Institu­ 1989 from the Army Judge Advo­ tions published by the Illinois Insti­ Class of 1984 cate General School at the Univer­ tute for Continuing Legal Education. Doran D. Bard is serving as vice sity of Virginia. Eric A. Isaacson is now an as­ consul to the United States Embassy David T Thuma is now prac­ sociate with Milberg Weiss Bershad in Oslo, Norway. ticing in Albuquerque, New Mexico Specthrie & Lerach in San Diego, Michael F Bartok has been with the flIm of Poole, Tinnin & California. named associate general counsel Martin. Steven R. Lazar has joined the of Paramount Communications, Inc. Robert L. Toms, jr. has been legal department of Ciba-Geigy Cor­ in New York City. named a partner in the Los Angeles poration in Research Triangle Park, jeffrey D. Butt has joined the firm of Lewis, D1\mato, Brisbois North Carolina. Tampa, Florida flrm of Shear, New­ & Bisgaard. Gerald A. Lee is an associate with man, Hahn & Rosenkranz. Michael H. Weed has joined the the flIm of Berlack, Israels & liber­ David R. Cohen has joined the fIrm of Aufmuth, Fox & Baigent in man in New York City. Treasury Department of the Internal Palo Alto, California. Major john]. Michels, jr. has Revenue Service in Miami. been assigned to the Judge Advo­ Amy M. Flick has become an cate General School at Maxwell AFB associate at Macey, Wilensky, Cohen, Class of 1985 in Montgomery, Alabama, teaching Wittner & Kessler in Atlanta. Lynn E. Barber was elected to administrative and labor law. jonathan A. Gruver has become a three-year term on the Board of Eric]. Murdock joined the Wash­ an associate in the labor and em­ Directors of the North Carolina Civil ington, D.c. office of Hunton & ployment law section of Porter, Liberties Union. She also serves as Williams in November 1989 as an Wright, Morris & Arthur in Wash­ president of the Wake County Chap­ associate on the antitrust and trade ington, D.c. ter of the NCCLU. regulation team. john H. jameson is pursuing his Michael]. Barnes has joined Marshall D. Orson has joined M.B.A. degree at Harvard Business Morgan Stanley & Co., Inc. in New Turner Broadcasting System, Inc. School. York City. of Atlanta as an entertainment lawyer. DUKE LAW MAGAZINE / 66

Steven M. Solinga has joined William]. Kahnk has joined Anne T Wilkinson has joined CPC International, Inc. in Englewood West Publishing Company's research the firm of Hollowell & Silverstein Cliffs, New Jersey as a tax attorney. and development team in St. Paul, in Raleigh. Peter A. Thalheim has opened Minnesota. his own law practice in Old Green­ Terry R. Kane is now assistant wich, Connecticut. staff judge advocate to the Com­ Class of 1987 Mary L. Woodbridge was elected mandant of the Marine Corps for David]. Berger has become an managing director at the investment Operational Law. associate at the Palo Alto, California bank of Merrill Lynch in New York Carl D. Kinsky has been named firm of Wilson, Sonsini, Goodrich City. an assistant public defender in St. & Rosati. Louis, Missouri. Karen A. Besok has joined the Class of 1986 Mary-Elise Long is now an asso­ firm of Smith, Somerville & Case Charles E. Adams is now a patent ciate at the Washington, D.C. office in Baltimore as an associate. attorney for United Technologies of Fried, Frank, Harris, Shriver & Regina M. Blus is now with the Carrier Corporation in Syracuse, Jacobson. firm of Steinhart & Falconer in San New York. jessica Essex Lorden has joined Francisco. David M. Allen has joined the the employment litigation division Deborah Dunn Brown is now recently-established firm of Schloss­ of IBM Corporation in White Plains, an associate with Alston & Bird in berg & Associates, Pc. in Berwyn, New York. Atlanta. Pennsylvania, where he specializes Michael M. Marnell is pursuing Richard W Brown is an asso­ in international corporate and com­ his Ph.D. degree in the Philosophy ciate at Smith, Gambrell & Russell mercial law. Department at Duke University. in Atlanta. Daniel B. Bogart has joined the William D. Matthews is an asso­ ToNola D. Brown has become firm of Vincent, Chorey, Taylor & ciate at the Atlanta firm of Greene, an associate at the Greensboro, North Feil in Atlanta. Buckley, DeRieux & Jones. Carolina firm of Nichols, Caffrey, Richard S. Boulden has recently Gary Myers is now a professor Hill, Evans & Murrelle. become associated with the Durham at the University of Mississsippi Reginald]. Clyne is with the firm of Newsom, Graham, Hedrick, School of Law. Coral Gables, Florida firm of George, Bryson & Kennon. Chauncey G. Parker; IV is now Hartz & Lundeen. john D. Briggs, jr. is a real es­ with the Office of Prosecution­ Frank E. Derby is now with the tate attorney in the Dallas office Special Narcotics in New York City. New York City f!fm of Christy & of Hopkins & Sutter. He will begin Barry G. Pea has recently been Viener. teaching in an adjunct capacity at named assistant counsel in the cor­ Pierre R. Destexhe has joined Southern Methodist University School porate section of the legal department the Los Angeles office of Seyfarth, of Law in 1990 in the area of civil of Burroughs-Wellcome Company Shaw, Fairweather & Geraldson as rights legislation or real estate prop­ in Research Triangle Park, North an associate. erty security. Carolina. R. Wilson Freyermuth, jr. has Kathleen]. Byrnes is now a full­ Mark D. Reeth has become an become an associate in the Raleigh time visiting legal writing instructor associate in the Newark, New Jersey office of Womble Carlyle Sandridge at the School of Law at Villanova firm of HeUring Lindeman Goldstein & Rice. University. Siegal Stern & Greenberg. james Alec Gelin has moved Susan Bysiewicz has joined the Patrick]. Rooney, II has joined to Atlanta and is an associate in the Hartford, Connecticut office of the Minneapolis firm of Rider, Ben­ corporate department of Arnall, Robinson & Cole. nett, Egan & Arundel. Golden & Gregory. Captain jerone C. Cecelic is Caren A. Senter has been named David Goren is now with the now stationed in the 7th CID associate counsel to The Travelers firm of Shulte, Roth & Zabel in New Region in Seoul, Korea. Companies of Hartford, Connecticut. York City. David F. Cooper is with the james D. Smith is now an asso­ Susanne Ingeburg Haas is counsel Atlanta firm of Holt, Ney, Zatcoff ciate at Arnold, White & Durkee for Honeywell, Inc. in the corporate & Wasserman. in Houston. headquarters in Minneapolis. Bharat Dube is now a consultant Lisa Deitsch Taylor is now with Robert E. Harrington is an asso­ with the World Intellectual Property the firm of Shanley & Fisher in ciate at Wilmer, Cutler & Pickering Organization in Geneva, Switzer­ Somerville, New Jersey. in Washington, D.C. land, a specialized agency of the Richard P. Vi'rnig has become Veronique]. Heim is now an United Nations. an associate at the Houston firm associate at the Los Angeles f!fm Pamela]. Gronauer has joined of Hirsch, Glover, Robinson & of Dumas & Taron. the Atlanta office of Jones, Day, Sheiness, where he specializes in Timothy R. johnson recently Reavis & Pogue. civil litigation. completed the requirements for the VOL. 8, NO. 1 / 67

degree of Master of Personnel and Class of 1988 the Middle District of North Carolina Employee Relations at the Univer­ Susan L. Beesley is with the firm in Greensboro. sity of South Carolina, graduating of Latham & Watkins in Washington, Theresa A. Newman Glover has first in his class. He has joined D.c. recently joined the Raleigh office Minneapolis-based General Mills, Amy Kincaid Berry is now an of Womble Carlyle Sandridge & Inc. as a human resource manage­ associate at the Los Angeles firm Rice. ment junior executive resident in of Hill Wynne Troop & Meisinger. Paul E. Harner has joined the the Toledo, Ohio office. Mark G. Califano has become Columbus, Ohio office of Jones, Kevin M. LeWinter has become an associate at the Washington, D.C. Day, Reavis & Pogue. an associate in the Phoenix firm firm of Dunnells, Duvall, Bennett George R. james is now with of Bess & Dysart. & Porter. the Atlanta firm of Powell, Gold­ Susan Gwin Ruch is an asso­ jean-Daniel Chablais has joined stein, Frazer & Murphy. ciate with Allman Spry Humphreys the Cleveland, Ohio office of Jones, Heimerick G. jansen has joined Leggett & Howington in Winston­ Day, Reavis & Pogue. the firm of Van Anken, Verstegen & Salem, North Carolina, where she Kevin M. Connelly has become Esser in Rotterdam, The Netherlands. practices in the areas of business an associate at Oppenheimer, Wolff Enrique R. jelensky has joined law and commercial real estate. & Donnelly in St. Paul, Minnesota. the firm of Patton, Moreno & Asuat junya Sato recently returned Margaret A. Force has joined in Panama City, Panama. to Tokyo, Japan and has rejoined the Raleigh firm of Pinna, Johnston, Mark labaton has become an Furness, Sato & Ishizawa as a part­ O'Donoghue & Burwell. associate in the Washington, D.c. ner, after spending a year and a half Charles G. Francis is now an office of Dewey Ballantine Bushby in practice in New York City. assistant United States attorney for Palmer & Wood. joseph S. lama, jr. has joined the firm of Edwards & Angell in Providence, Rhode Island. Andrew A. Martin has joined the Tulane Medical Center in New Orleans as a resident in pathology, subspecializing in forensics, toxicol­ ogy and environmental medicine. He has been appointed to the Louisi­ ana State Legislative Committee on AIDS to draft state AIDS legislation. Christa A. McGill has joined the Office of the General Counsel of the Department of Health & Human Services in Baltimore. Mary Reddick Moses has joined the Education Section of the Civil Rights Division of the United States Justice Department. Philip M. Nichols has become an associate with Ropes & Gray in Boston. Virginia A. Noble is now an attorney with the Equal Employment Opportunity Commission in Wash­ ington, D.c. Kwasi Nyamekye has joined the firm of Beckley, Singleton, Delanoy, Jemison & List in Las Vegas. Barbara Ida Patterson has re­ cently joined the Atlanta firm of Arnall, Golden & Gregory. john D. Prather is now with the firm of Young, Moore, Henderson & Alvis in Raleigh. Alumni renew friendships during law Alumni Weekend '89. Emily D. Quinn has joined the DUKE LAW MAGAZINE I 68

fIrm of Byrnes & Keller in Seattle. Lisa R. Reid has joined the fIrm of Sullivan & Cromwell, resident in the London offtce. Rawn H. Reinhard has become an associate in the Chicago offtce of Skadden, Arps, Slate, Meagher & Flom. Deborah E. Richardson is an associate at Emmet, Marvin & Martin in New York City. Michael P. Scharf is now an attorney-adviser in the Offtce of the Legal Adviser of the U.S. State De­ partment in Washington, nc Stephen J Segreto has joined the Washington, D.C offtce of Morgan, Lewis & Bockius. Sandra J Seaton is an associate at Poe, Hoof & Reinhardt in Durham. Michael C. Sholtz has joined the fIrm of Wolf, Block, Schorr & Solis­ Cohen in Philadelphia. Howard A. Skaist has become an associate at the Portland, Oregon fIrm of Stoel Rives Boley Jones & Grey. Christopher J Supple has joined the fIrm of Hale & Dorr in Boston. Taylor D Ward has returned from a year of study at Tokoku Uni­ versity in Sendai, Japan under a Fulbright scholarship. He is now an associate at Webster & Sheffteld in New York City. Susan K. weaver is an associate with the fIrm of Lorenz, Alhadeff, Lundin & Oggel in San Diego, California. Barbeque from Bullock's is enjoyed at law Alumni Weekend '89.

Personal Notes

'69-Norman E. Donoghue, II -David L. Vaughan was married their home in Asheville, North was married to Margaret O'Donnell on April 7, 1989. He and his wife, Carolina. on September 23, 1989. They make Barbara, reside in Washington, nc -Paul M. Wright and his wife, Lisa, their home in Philadelphia, where are proud to announce the birth of Ned is a partner at Dechert Price , 73-William L. Kurtz announces their second child, a son named & Rhoads. the birth of his fourth child and Josiah, born on April 29, 1989. second son, David Thomas, born '71-Ted A. Schumacher was mar­ on March 18, 1989. ried on February 14, 1989. He and , 76-Aron M. Schwartz announces his wife, Yvonne, live in Roswell, , 7 5 -William J Trull, jr. recently the birth of his second child, Daniel, Georgia. married S. Kim Bogue. They make born in March 1989. VOL. 8, NO. 1 / 69

'77 -Edward T Hinson and his side in Traverse City, Michigan where Janine, are happy to armounce the wife, Dottie, armounce the birth of Nina is an attorney with Blakeslee, birth of their daughter, Taylor Samara, their second child, Rebecca Eliza­ Chambers, Peterson, Dalrymple on May 11, 1989. beth, born January 10, 1989. & Christopherson. -Richard S. Smith, jr. was married -David S. Felman was married to Jearme M. Galvin (Duke '82) on , 78-jana Banahan Cogburn an­ to Judy Altobell on December 10, October 7, 1989. Richard is an asso­ nounces the birth of her first child, 1988. ciate at the Hartford, Connecticut Cara Anne, born on September 11, -Steven A. Schneider was married firm of Murtha, Cullina, Richter 1989. to Kathy Ellen Minor of Austin, Texas & Pinney. -james T R. jones and his wife, on February 12, 1989. Jane, armounce the birth of their '8 5-Lynn M. Gilleland was mar­ -William A. Blancato and first child, Jennifer Lee, born on ,83 ried to John C. Hawkins on July 1, May 19, 1989. his wife, Eileen, proudly armounce 1989. They make their home in -Linda A. Malone and Rodney A. the birth of their daughter, Lynda, Winter Park, Florida. Smolla are happy to armounce the on January 31, 1989. -Elizabeth Hoffman Liebschutz birth of their daughter, Erin Angeline -Seth L. Forman was married to and David S. Liebschutz happily Malone Smolla, on May 21, 1989. Cristina Rusiana on June 26, 1989. armounce the arrival of a daughter, -Edward P. Tewkesbury and his They make their home in Agana, Jennifer Ellen, born on January 27, wife, Fran, are pleased to report the Guam. 1989. birth of their first child, Edward, -Deborah H. Hartzog and her hus­ -Loreen M. Marcil was married to Jr., born on October 21, 1989. band, Fulton, are proud to armounce Christopher R. Holmes in Washing­ the birth of their son, Joshua Hyl­ ton, D.c. on October 28, 1989. ton, on March 18, 1989. -john J Michels, jr. announces the '79-Carol Gray Caldwell and -Christopher C. Kerr and his wife, birth of a second son, Evan Lee, her husband, Harry, are pleased to Karen, are pleased to armounce the born October 13, 1988. armounce the birth of their first birth of their first child, Kelsey -Belle Meltzer Toren and her hus­ child, a daughter named Jenna Gray Elizabeth, on October 3, 1989. band, Aviv, are pleased to announce Caldwell, born August 14, 1989. -Nora M . jordan and WAllen the birth of their second son, Yuvan Reiser armounce the birth of their Ronen, on November 8, 1988. '80-G. William Brown, jr: and second child, Mary Campbell Reiser, his wife, Amy, armounce the birth in September 1989. , 86-7homas F Blackwell and of their second daughter, Lauren. -john Randolph Prince and Rebecca his wife, Lisa, are proud parents -Colleen C. McCarthy was married Davis Prince are the proud parents of a second child, Jillian Meredith, on August 20, 1988 to Kevin Booze!. of a son, John Carter, born Septem­ born on November 16, 1989. They have started a small, gourmet ber 20, 1989. -William J Kahnk was married food products business, while Col­ to Michelle Larson on September leen continues to practice law full­ '84-Michael F Bartok was mar­ 18, 1988. They make their home time in Erie, Pennsylvania. ried to Patricia Hayashi on October in Coon Rapids, Minnesota. -Alan M. Mitchel and Celeste Norris 14, 1989. They reside in New York -Nina R. Ledis was married to Mitchel are the proud parents of City: David Carmon on October 14, 1989 their second child, a daughter named -Duane M. Geck, and his wife, in Philadelphia. They make their Elizabeth Anne, born September 15, Terri, armounce the birth of their home in New York City, where Nina 1989. first child, Kevin Douglas, born is an associate at Spengler Carlson on December 5, 1988. Gubar Brodsky & Frischling. -Paul A. Kramer armounces the -Marcel H. R. Schmocker announces , 81-Cynthia Leigh Wittmer an­ birth of a daughter, Ariel Mairi, on the birth of a son, Michael Marcel, nounces the arrival of a daughter, April 15 , 1989. on June 25, 1989. Joncie Kimball Wittmer Sarratt, born -Patricia Beaujean Lehtola and -jane G. Spillman was married June 22, 1989. her husband, Jouni, are the proud to Daniel J. Converse on April 15, parents of Carl Marcel, born on 1989 in Bethesda, Maryland. They ,82 -Gary L. Beaver and his August 10, 1989. make their home in Vienna, Virginia. wife, Jane (Duke '79), are the proud -Lee D Mackson was married to Jane is an associate at Hopkins & parents of their second child and Andrea Chodorow on June 22, 1989. Sutter in Washington, D.c. first son, Alexander Lee, born on -Briget M. Polichene was married -Peter BB Tobias was married June 26, 1989. to Chuck Chamness on August 26, to Heather Craik in Toronto, Canada -Nina F Collins was married to 1989. They make their home in on October 28, 1989. Peter is prac­ Charles L. Carey, II on September Washington, D.c. ticing corporate law with Fraser 23, 1989. They will continue to re- -Wilson A. Schooley, and his wife, & Beatty in Toronto. DUKE LAW MAGAZINE I 70

-Anne T Wilkinson, and her hus­ They make their home in Great Thelen, Marrin, Johnson & Bridges. band, Shrin, announce the birth Neck, New York. -David A. Payne and Katherine of their flISt child, a girl named Nina -Katherine A. Strozier and David A. Strozier, Class of 1987, were mar­ Reilly Rajagopalan, born November A. Payne, Class of 1988, were married ried on September 23, 1989 in Wash­ 8, 1989. on September 23, 1989 in Washing­ ington, D.C., where they make their -Richard H. Winters was married ton, nc., where they make their home. David is an associate at Gib­ to Margaret W. Mohr on May 20, home. Kathy is an associate at Dow, son, Dunn & Crutcher and Kathy 1989 in Lake Forest, Illinois. Lohnes & Albertson, and David is is with Dow, Lohnes & Albertson. with Gibson, Dunn & Crutcher. -Melissa A. Prien andJames Walker, '87 -Pamela J Hazen and Wil­ -Sherri J White and James E. IV were married on September 30, liam G. Maddox, Class of 1988, were Tatum, Jr., Class of 1989, were mar­ 1989 in San Francisco, where they married on October 14, 1989. They ried on September 24, 1989 by her make their home. Melissa is an as­ make their home in Alexandria, Vir­ father, Bishop Frank O. White, in sociate at Pillsbury, Madison & ginia. Pam is an associate at Thelen, Freeport, New York. They make Sutro and James is with Cooley Marrin, Johnson & Bridges; Bill is their home in Bowie, Maryland. & Godward. with Paul, Hastings, Janofsky & Sherri has been with the Suffolk Walker. County, New York District Attorney's -Jasper A. Howard and Eve E. Office for the past two years. Jim is '89-Deborah Stone and Daniel Noonberg were married on Septem­ an associate with the firm of Howrey Grossman were married on August ber 9, 1989 in Baltimore, Maryland. & Simon in Washington, nc. 12, 1989 in Atlanta, where they re­ They make their home in Washing­ side. Deborah is an associate at ton, nc., where Jasper is an associate Long, Aldridge & Norman; Daniel at Covington & Burling, and Eve is '88-Amy L. Kincaid was married is with Powell, Goldstein, Frazier an associate at Hogan & Hartson. to Kenneth Berry on December 31, & Murphy. -Cecilia C. Smith was married to 1988. -James E. Tatum, Jr. was married Timothy Glenn Schoenwalder on -William G. Maddox and Pamela to Sherri J White, Class of 1987, May 7, 1989 in Tallahassee, Florida, J Hazen, Class of 1987, were mar­ on September 24, 1989 in Freeport, where they reside. C. C. is an associ­ ried on October 14,1989. They make New York. They make their home ate at Hopping Boyd Green & Sams. their home in Alexandria, Virginia. in Bowie, Maryland. Jim is an asso­ -Amy F Solomon was married to Bill is an associate at Paul, Hastings, ciate at Howrey & Simon in Wash­ Allen M. Hecht on August 17, 1989. Janofsky & Walker; Pam is with ington, nc.

Obituaries Mr. Ward was a member and of Kellam, Pickrell, Cox and Thyloe. Class of 1930 past president of the Warren County Mr. Kellam was one of the principal Lester A. Smith of Raleigh died Bar Association. He served on the organizers of the Princess Anne His­ on February 9, 1989. board of directors of the Vicksburg torical Society and the William and YMCA, and was president of the Mary Concert Series in Norfolk. He Class of 1931 Vicksburg Junior and Senior Cham­ was active on the boards of Virginia Robert B. Billings, who was re­ bers of Commerce. He was also a Wesleyan College, the Virginia Mu­ tired and living in Durham, died trustee of the Vicksburg Hospital seum of Marine Science and the on September 16, 1989. Foundation and a former chairman Virginia Beach Arts Center. of the board of directors of Merchants Mr. Kellam is survived by his Class of 1932 National Bank. Mr. Ward is survived wife, Helen Owen Kellam; a daughter, M. Emmett Ward, Jr. died on by his wife, Ellena; a daughter, Mary Sarah, of Norfolk; two sons, Severn December 3, 1989 in Vicksburg, Ward Slack of Mountain View, Cali­ of Norfolk, and Edwin, Jr. of Vir­ Mississippi, where he had practiced fOrnia; a son, M. Emmett Ward III ginia Beach; four brothers; and five law since 1932, most recently as '67 of New York City; and one grandchildren. a senior attorney with the firm of grandchild. Murry A. Miller died on Decem­ Ward, Martin, Hassell, Jones and ber 17, 1988 in Asheville, North Williford. He was a member and Carolina. former regent of the American Col­ Class of 1936 Walter M. Upchurch, Jr., who lege of Probate Counsel and a mem­ Edwin C. Kellam, of Norfolk, was retired and living at the Metho­ ber of the American College of Virginia, died on November 18, dist Retirement Home in Durham, Trial 12wyers. 1989. He was a partner in the ftrm died on January 22, 1989. VOL. 8, NO. 1 / 71

Class of 1937 Ministries for the Aging from 1983 Since 1986, Oppedal had served Capt. Leonard R. Hardy died to 1987. He is survived by his wife, as a senior vice president and head of cancer on January 10, 1988 in Mary Ann, two sons, a daughter, of the trust department of the Far­ Virginia Beach. two brothers, a sister, two step­ mers Bank and Trust Company in Basil L. Whitener died on March brothers, and two step-sisters. Hanover, Pennsylvania. He was pre­ 20, 1989 at his Gastonia, North Caro­ viously employed by the First Vir­ lina home. Mr. Whitener was the Class of 1951 ginia Bank of Norfolk. Mr. Oppedal state's 10th District congressional james R. Barfield died on March was a member of the Hanover Rotary representative from 1957 to 1969. 19, 1989. He retired in 1988 as a Club, the United way of York County, A veteran of the u.s. Navy, he also partner in the Jacksonville, Florida and the York County SPCA. served in the North Carolina House law fum of Cowles, Hayden, Facciolo, Other survivors include his par­ for two years before World War II. McMorrow & Barfleld. He is sur­ ents, Charles and Jeraldine Phillips, He was the solicitor of the 14th Ju­ vived by his wife, Florence, a son, and a sister, Jo Hubbart, of Spring­ dicial District from 1946 to 1956 two daughters, three sisters and two fleld, Illinois. The family can be con­ and practiced law in Gastonia. Mr. grandchildren. tacted through Ms. Christine Neri, Whitener is survived by his wife, Vice President & Trust OffIcer, Farm­ Harriet, and four children. Class of 1960 ers Bank and Trust Company, 13 Thomas H Lee, who recently Baltimore Street, Hanover, PA 17331. retired as a Durham County superior Class of 1941 court judge, died on Tuesday, No­ Class of 1981 Henry H Sink died on September vember 14, 1989 after a lengthy ill­ Robert P Press of Seattle died 20, 1989. He was a partner in the ness. Elected in 1966 to the district onJuly 17, 1989. He is survived Raleigh flrm of Parker, Sink, Powers, court bench, he ascended to the by his parents and a sister. Sink & Potter. Mr. Sink was a past president of the Wake County Bar superior court in 1974, and in 1977 became Durham's senior resident Law School Association and was instrumental superior court judge. Although he john W Halderman died in in establishing the Legal Aid Society offIcially retired in January of 1989, Durham on August 1, 1989 at the of Wake County. Judge Lee continued to serve as an age of 81. Mr. Halderman came to Mr. Sink is survived by his wife, emergency judge until his death. Duke in 1960 as a senior research Susan D. Sink; three daughters, Rose­ A retired captain in the U.S. associate for the now inactive World mary S. Unsworth of Raleigh, Susan Army, Judge Lee vice president Rule of Law Center. Although he S. Burgess of Port St. Lucie, Florida, was of the Conference of Superior Court retired in 1972, the following year and Honora S. Newell of Charlotte; Judges in 1986 and 1987 and helped he was named a scholar in residence two sons, Henry, Jr. and Robert, to establish Durham's Dispute Settle­ at the Law School, where he con­ both of Raleigh; and two grandsons. ment Center. He is survived by his tinued to work daily for several wife, Ginny Jackson Lee of Durham; years. Class of 1948 two sons, Thomas, Jr. and David, Mr. Halderman worked for the Richard A. Leuthold died on both of Durham; and a brother, J. U.S. State Department for twenty­ March 7, 1989 after a lengthy illness. Grover Lee, Jr. of Fayetteville. three years, where he helped to for­ He served in the U.S. Navy during mulate the United Nations charter. World War II, and spent three years Class of 1964 He served as a legal adviser to the as corporate counsel for Firestone William T. Sims died of a stroke U.S. delegation to the U.N. General Tire & Rubber Co. In 1952, he re­ on August 14, 1988. He was owner Assembly. He accompanied Eleanor turned to his hometown of Warren, and president of a travel agency in Roosevelt, the American representa­ Pennsylvania and established a law Deltona, Florida. tive to the General Assembly and practice, which he continued until the Human Rights Commission's flrst his death. Mr. Leuthold is survived Class of 1971 chairwoman, to the flrst commission by a sister, Phyllis Davis, of Warren, Gregory A. Oppedal was killed meeting in Geneva. a niece, a nephew, a grand-niece in a two-car accident on September Mr. Halderman also served as and a grand-nephew: 30, 1989 in Carroll County, Mary­ a legal offIcer to the U.S. diplomatic Ray Moody Seigler died on Feb­ land, near the Pennsylvania state mission in Berlin during 1953-54, ruary 3, 1989 in Columbia, South line. Also killed were his two chil­ as U.S. Consulate-General in Casa­ Carolina after an eight-month illness. dren, Erica, age 14, and Damon, age blanca, Morocco in 1955-56, and as He practiced with the Columbia 12, and three other persons. His political offIcer at the U.S. Embassy fum of Seigler, Earle and Ellsworth wife, Nancy, was severely injured in Ceylon (now Sri Lanka) from 1957 until his death. He was a deacon in the accident, but is now recov­ to 1958. He is survived by his wife, of his Baptist church and a mem­ ering at the home of her parents Eleanor lAmergan Halderman, and ber of the South Carolina Baptist in Illinois. a son, Charles R. Halderman. DUKE LAW MAGAZINE 172

UPCOMING EVENTS

For more information on upcoming events, call the Law Alumni Office at (919) 489-5089.

Conference on Career Choices H .. H.H ...... March 2, 1990 Barristers Weekend H..H.H. March 23-24, 1990 Board of Visitors Meeting ...... H...H.HH .H. April 6-8, 1990 Commencement H...... H.. .H...... May 13, 1990 Law Alumni Weekend '90 H' ...... November 2-3, 1990

The following classes will celebrate their reunions in 1990:

Classes of 1944, 1945 and 1946 Goint reunion) .... 45th reunion Class of 1950 ...... H .. H...... H..H. 40th reunion Class of 1955 ..HH. ...HH..H 35th reunion Class of 1960 H...... H...... H...... 30th reunion Class of 1965 ...... 25th reunion Class of 1970 HHH.H.H.. .HH..H ..... 20th reunion Class of 1975 ...... H.H ... H.. H. ..H····H·H··H· 15th reunion Class of 1980 ...H....HH..H.... 10th reunion Class of 1985 H...... HH ...... HHH...... 5th reunion

The Law Class of 1940 celebrated a joint 50-year reunion with the Classes of 1938 and 1939 in September 1989.

Members of the Classes of 1938, 1939 and 1940 celebrated their Half-Century Reunion in September 1989. CHANGE OF ADDRESS

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PLACEMENT OFFICE Anticipated openmg for third D, second D, and/or first D year law students, or experienced attorney D Date position(s) available ______

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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.

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