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11-1991 The ewN York Law School Reporter, vol. 9, no. 3, November, 1991 New York Law School

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Recommended Citation New York Law School, "The eN w York Law School Reporter, vol. 9, no. 3, November, 1991" (1991). Student Newspapers. 27. https://digitalcommons.nyls.edu/newspapers/27

This Article is brought to you for free and open access by the NYLS Publications at DigitalCommons@NYLS. It has been accepted for inclusion in Student Newspapers by an authorized administrator of DigitalCommons@NYLS. Media Sexual Law Randolph Iannacone Harassment Project reviews Hospital Newsletter Responsibility for at NYLS? Medical Malpractice

See Page 3 AfterPage8 The New York Law School

Volume IX, Issue 3 "On the Cutting Edge of Credibility" November 18, 1991

Hon. Nicholas Tsoucalas, New York Law School, '51 Hon. Yorka Linakis, New York Law School, '43 Hon. Stanley Ostrau, New York Law School, '51 Professor Zuhayr Moghrabi, New York Law School, '67 At the Alumni Association's reception honoring "Alumni Serving in the Judiciary

(\ The REPORTER November 18, 1991 Issue 2, Volume 20 Corrections , In This Issue .... and Our cover photograph includes four New York Law School alumni who were among those90who attended the Alumni Credits 1 Association's reception honoring "Alumni Serving in the Judiciary" Often when one aims for greatness, great­ Please Note Corrections ness is achieved. Yet more often, the runner may 2 stumble. The Reporter stumbled in its last issue on several occasions. We at The Reporter takes full Sexual Harassment. What can students, Cable Piracy in Queens responsibilty for these stupid errors. First, the article on Third World economic faculty or staff do when confronted by Media Coverage of the 3 harassment? growth that was attributed to Patrick Benn was not 1 Thomas Hearings his own work. In actuality, it was an article pulled from a Lexis search. The piece is originally from The Economist magazine. That article was copied Students Fight for Constitutional 4 to disk for later use as background material for Rights on Campus another article, but in the process of layout was mistaken as an actual student article. Centennial Gala Honors Forward Mr. Benn did not perform the Lexis search, "Hank" Greenberg, NYLS 'SO An Interview with nor did he submit the article that was published in 5 NYLS-Public Interest Campaign Professor Botein 2 The Reporter. Indeed, The Reporter states cat­ Using Class Notes to studey egorically that he was not connected with the An Interview with article published in his name in any way. A Proposal to Restore Professor Feig The Reporter layout staff assumes total re­ Student Financial Aid Cuts sponsibility for this mistake. Layout Editor Joe 6 Conway, who has ultimate responsibility for what gets put down on each page, has apologized pro­ Tom Smith takes Aim atTed Kennedy fusely to Mr. Benn for the ridicule he has been 7 SBA News subjected to by several of our fellow students over Reporter Advertisers offer discounts this matter. NC 17 ... Another way tc A similar problem occurred with the Great NYLS graduate Randolph spell X? Lakes article which appeared in the Environment Section. That article was apparently accidentally Iannacone looks atMedical Public Interest and Malpractice 8 3 scanned in from Omni magazine. Luckily, we Local Programming credited its real author, Ms. Justine Kaplan, but the magazine itself was not given credit. Also, Ellie Benz was not given byline credit for her article "Visiting with Visiting Professor Moot Court teams gather Jeffrey O'Connell" that appeared on page 20. experience, respect, trophies The Law according Anotherimproperlycreditedarticlethatwas 10 to television 4 accepted for publication was the one on inexpen­ sive wines. The Reporter will no longer accept A New Clinic at NYLS? articles written without being able to give attribu­ The Portable Lawyer tion to a specific author. (Although the author's L. A. W. Symposium 11 name may be withheld at request, our editors must know who wrote each article). Due Process and the Other articles and photos/drawings were 5 media not given proper credit as well. Scott Star took the A Guest Editorial photo on the front cover, the three photos on page Thank You, Anita Hill! 12 8, and the photo of Monica Coen on page 24. Reporter Photo Editor Darlene Miloski took the photo of NYLS students playing football which appeared on page 24. Michael Wood and Alesia SBAMinutes Albanese took the other photos on pages 24-25. In Jack Froelich on Drug Testing Damages and the future, The Reporter will make a concerted 13 the Arts 6 effort to credit every piece of work that goes into each edition-we will never go to print again before we are .able to verify and credit each source that deserves publication credit. This includes making an all-out effort to properly credit each quotation Television in A New York Law School used, as well as each and every source used. student recounts HIV test Politics: We are instituting new guidelines over the experiences 14 7 Access, Form, use of CALR and are revamping the editorial process to make it multi-layered. Substance Yes, we at The Reporter made mistakes in the process of putting out the paper. There are typos, grammatical errors, layout errors, mangled stories and missing pages. But this is the nature of a law school newspaper. The mistakes we make 15 can be called silly, sloppy, unprofessional, infan­ tile, or many other things, but they were not inten­ tional. The time and academic pressures on a law The New York Law School Reporter student are incredible. Extracurricular activities 47 Worth Street by their nature must give way to the demands of New York, New York 10013 Brennan, Michael Bressler, Heather Brownlie, Jeryl Bruner, Mitchell a full academic agenda. The students who work on The Reporter recognize this, but have never­ Tel.: (212) 431-2117 Donner,Bernadette Dono, Jack Froelich, Jeanne Forester, Caroline Gargione, Glenn Gavin, Jennine Gerard, Patrick Hayes, Gail Karan, theless made a commitment to our school and its Fax: (212) 431-2327 Rebecca Koch, AndrewKurtz, Arnold Levine, David LaPorta, Alex newspaper. We will stand by that commitment, Michael Wood, Editor in Chief Lee,Eric Levine, Clui.stopher Luongo, Carol Mashamesh, Joseph Macri, and will continue to work on this worthy project. William Meredith III, Publisher Thomas Mavis, Glenn Miller, James McClymonds, Darlene Miloski, I. We know The Reporter isn't perfect. But we Bryce Moses, Melissa Meares, Seamus Murphy, Brian Neville, Efram James Horan, News Editor Peller, Peggy O'Brien, Mary beth Pascal, Nicholas Penkovsky, Elizabeth have been trying to create a school paper of which Joseph Conway, Layout and Production Editor Rose, Meredith Simpson, Michael Simone, Robin Sherak, Philip we can all be proud. With each issue we try to do Doug Stem, Advertising Manager Spyropoulos, Lome Smith, Thomas Smith, Louis Taubman, Peter a little better. To be successful, we need your help. 1991-1992 Staff: Alesia Albanese, Ali Agha, Craig Wagner, Cheryl Williams, Anthony Van Zwaren, Steven Zorowitz and We need your assistance in writing articles, your Andrioli,JeffBerger, Patrick Benn,Ellie Benz Robert Boder, Joseph many others who we forget to mention. patience when we are slow to get to press, and your understanding when we make mistakes. Sexual Harassment On Campus? by Michael Wood adults, as are (presumably) the students. tion; or drawn up and filed with the appropriate As Sexuality is, of course, one of the more enjoy­ 3. Such conduct is abusive of others sociate Dean. TherecentSenateconfirmationhear­ able aspects of life. When does a free expres­ and createsorimplies a discriminatory hostility A complainant may make use of for ings for Supreme Court Justice Clarence Tho­ sion of interest or attraction become harass­ towards their personal or professional inter­ mal proceeding by filing a complaint with th1 mas have brought an increased awareness of ment? ests." Human Rights Review Board, even after uti sexual harassment to the entire nation. A be­ According to the Code, "Sexual ad­ The Code prohibits sexual relation­ lizing the informal procedures. The Boarc leaguered Anita Hill, upon returning to her vances, requests for sexual favors, and other ships between a student and a faculty member consists of four members: one chosen by fac duties as a law professor at the University of conduct of a sexual nature constitute sexual who has academic responsibilities regarding ulty; one elected by staff; one student chose1 Oklahoma, had these words for those who are harassment when: the student. Students are prohibited from tak­ by the Student Bar Association; one membe victims of harassment; '1 am hopeful that 1. Such proposals are made under ing classes or accepting a recomendation from of the Administration, serving ex officio. others who may have suffered sexual harass­ circumstances implying that a person's re­ any teacher with whom they have a sexual The proceeding is intiated by th, ment will not become discouraged by my sponse might result in negative academic or relationship. filing of a complaint form. The Board, at it: experience, but instead, will find the strength work decisions; or Any student, staff or faculty member own discretion, may decide to hold a hearin~ to speak up about this serious prob- on the complaint. If it does so, it i: lem." required to schedule a hearin~ Long before the Thomas within 7 days of the filing of th1 nomination, the staff, faculty and complaint. Both thecomplainan students of New York Law School ~uGoTr~~•T and the respondent may appea hammered out a program for deal­ accompanied by counsel or oth 1\lAT ~~~ "~$M~T ing with sexual harassment on cam­ ~rlcAN ~ ~ ers. Each may present witnesse: pus. The preamble to the NYLS ~ic,HA~ t«t,~ AWA~ L~~UD to the Board, and each may cross Sexual Harassment Code says in ~ ,"~•f q>\"iotfo ~--· ~u<51(N~l. ..• ~ examine witnesses, file motion: part: "Faculty, staff and students ~1i&\..E ... or make pleadings before th, have a right to be free from sexual Board. The Administration ma~ harassment...sexual harassment is utilize sanctions to ensure tha inappropriate within the context of witnesses appear before the Board the Law School community, will The Rules of Evidence do not ap not be tolerated, and is subject to the ply to the hearing. A decision i: provisions set forth herein." Sexual due within ten days after the dos, harassment is prohibited. But just of a hearing. what constitutes sexual harassment? The Board ma~ recommend that the Administra WHATISSEXUALHARASS­ tion a sanction if it finds a viola MENT? tion of the Code. Sanctions fo Within the context of the students may include: a warning school code, sexual harassment oc­ suspension for a time; probatim curs when one person uses his or with conditions; removal from , her position of power to coerce an­ journal or other student organiza other person into a sexual relation­ tion; revocation or non-renewa ship or subjects another person to a 01~1r,1:>v1eo Dv Tribune Med,a. Services of credits for participation in , hostile academic or work environ­ journal; expulsion, and with o ment. This may include both verbal without terms and conditions re and nonverbal behavior, written or oral ex­ 2. Such conduct is so aggravated as who is the victim of sexual harassment, may at garding re-admission. Sanctions for employ pression, or physical violence between any to contribute to an inhospitable academic or his or her option, utilize the procedures of the ees may include: a warning; suspension witl membersofthelawschoolcommunity.How­ work environment, or to interfere with re­ Code in an attempt to eliminate the problem. or without pay; probation; denial or limita ever the staH and faculty of the school are quired tasks, career opportunities, or educa- The Administration will recommend qualified ti.on of future increases in salary; reduction i1 psychological counseling for anyone who com­ position; and termination of employment plains of sexual harassment. A victim of sexual Sanctions for tenure-track and tenured facult; harassment may utilize either an informal or a may include: a warning; suspension, with o formal procedure in dealing with the problem. without pay; probation; denial or limitation o WANT A LIGHT LUNCH The informal procedure includes the future increases in salary; reduction in grad, presentation of a complaint to a mediator, cho­ or position; termination of employment; or, i sen by the Administration from a panel of a faculty member has recommended a studen mediators (teachers, students, or staff). A con­ with whom the faculty member has previ OR NO LUNCH fidentiality agreement is executed between the ously had a sexual relationship, notification o mediator and the complainant. The informa­ such relationship to all persons receiving sud tion disclosed to the mediator is not admissable recommendations. COME_TO by the mediator in any subsequent formal pro­ The Sexual Harassment Code is de ceeding. The mediator, as is often the case, signed to protect students, faculty and staf serves several roles. The mediator may refer the from unwanted advances or harassment complainant to someone more appropriate, However, it remains to be seen if the enforce provide general counselling, advise the com­ mentof the Code lives up to the promise. Sino plainant of his or her rights under the Code, Board members and mediators operate unde suggest steps to take in resolving the dispute. a condition of confidentiality, there will be n< The mediator may, if both parties are willing, popular review of decisions. It is inevitabl, work with both the complainant and respon­ that only failures will become public knowl dent to resolve the dispute. A report may be edge. SPORTS BAK Who's Doing What at 57 MURRAY STREET New York Law School (Between Church & West broadway) by William Meredith III

(eowuNG) @ASKETBAL0 (DARTS) (Foos BAL0 Professor Arthur S. Leonard was quoted 1984's civil real estate forfeiture provisions. in an article in the November 11 issue of The Professor Strossen is the subject of a cover Nation. The article dealt with the availability of story in the November National Jurist. employment-relatedhealthinsuranceforpeople Professor Stuart Schlesinger's article on with AIDS. standards and pitfalls for expert testimony ~ 0 Professor Richard Siegler's article on appeared in the New York Law Journal on '3 of q changes in Rule 216 the Internal Revenue October 16. Code, and its effect on pass-through interest Both Professor Richard Marsico and BURGERS, IIOT DOGS, CIIICKEl'l lk MEX FOOD expenses for cooperative housing corporations, third year student Glenn Bruno were featured Sl!RVED BY LUCY was published in the New York Law Journal on in an article in the September issue of the ABA November 6, 1991. Student Lawyer. The article dealt with law Professor Nadine Strossen was quoted in school clinics. 1 FULL IHER SUPER MUGS OF BEER s3.00 jln article on "The Diminishing of the First Professor Sanford J .Schlesinger led a Amendment''. It appeared in the fall, 1991 Hu­ series of seminars on "Planning Alternatives man Rights, published by the section of Indi­ for the Aging" at Temple Emanu-El in FREE SNACKS & TACO OilPS vidual Rights and Responsibilities of the ABA, Westfield, New Jersey during September. She was also quoted in a November 6 article Professor E. Donald Shapiro was quoted about the Comprehensive Crime Control Act of in an article in Time magazine's November 11 issue. The article dealt with privacy in the information age. Sttid;ents Fight Judicial Boards'·~for Constitutional Rights

STUDENTS FIGHT JUDICIAL on date rape. She says that because BOARDS FOR THEIR RIGHTS schools try to afford equal protection to both the student and the offender, by Amy Reynolds punishmentsoftendonotfitthecrimes. One problem in any discus­ 1he system stinks. sion of how campus judicial systems That's what students on a re­ should operate is the fact that virtually view board at the University of Minne­ no two systems are the same. "You'll sota say of the school's judicial system. find that they are anything but uni­ They claim that the school sacrifices form," says Randy Bezanson, dean of fairness for- expediency, ignores con­ the Washington and Lee School of Law stitutional rights of due process by and a national expert on constitutional giving one person the power of pros­ law. "The larger universities have more ecutor, judge, jury and appeals judge, elaborate processes. The smaller lib­ and ignores the constitutional protec­ eral arts schools are less elaborate and tion against self-incrimination. their systems are more widely varying "To me, (these violations) C because the whole process reflects tra­ sound like a good argument against !'O E ditions." having the university handle anything :it! 0 The systems that contract that isn't academic," says Jack Stecher, 0... most harshly are public and private, I- an economics graduate student serv­ because public institutions must ad­ :it!... ing on the committee. !'O here to state and federal laws. In Sep­ Stecherisn'taloneinhisthink­ ~ tember, Liberty University expelled >, ing. For years, students, faculty, ad­ .0 three seniors for worshiping at the ministrators and other scholars have ______,.a. ~ United Pentecostal Church, a viola­ butted heads on the issue of a .s::; tion of school a policy. Although the university's right and power to pros­ University of Minnesota students Jack Stecher (front) and Mike Taylor are trying to change school held a hearing on the matter ecute criminal cases in the campus a judicial system that they say violates the rights of people it is designed to protect. and granted the students appeals based courts. on the school's rules, the students' First Universities' "determination Programs at the University of Georgia, says "Will the institution defer to the state if the Amendment freedom ofreligion rights to enforce this ... rests on the premise that col­ state isn't going to respond at all?" were ignored. Because Liberty is private school, leges and universities have a jurisdiction over universities justifiably have separate jurisdic­ tion. Bracewell says schools need to ad­ it is not bound by the Constitution, so the the lives of their students that is independent dress criminal complaints because they affect freedom of religion element of the case wasn't of the law of the land," writes John Roche, a "Each one of those jurisdictions has a different interest to protect," Bracewell says. the university community in terms of cam pus relevant. former member of the Johnson administra­ Each school, like each city and state, "has a set safety and victims' rights to get an education But, in Minnesota's case, the allega­ tion, in a recent article in National Review. of regulations that are right for the campus, without interference from the people who tions against the system, including lack of a "The notion that an aggrieved person believ­ have committed criminal acts against them. students Fifth and Fourteenth Amendment ing him or herself the victim of a crime must that are right for the community." Bracewell points to the issue of date rape as an example Others disagree with the campus rights to due process-the right to a trial by an 'keep the matter in the family' is a jurispruden­ system's ability to handle criminal cases. "The impartial judge and jury, for example--are tial absurdity". of why campuses need to address criminal charges in their judicial systems. goal of the campus judicial system worthy of investigation because the school is Frequently on the opposite side of "If you talk to women, they don't is ... primarily to protect the interest of the bound by the Constitution. "The Constitution the argument are cam pus judicial adm inis tra­ wantthosemenoncampus. Whatifthewoman students. The criminal justice system focuses has a special bearing because we are a public tors. William Bracewell, the former president has a class with the man who assaulted her? In on punishing offenders." says Carol Bohmer. of the Association for Student Judicial Affairs some states, the law doesn't even include date a sociology professor at Cornell University Continued on bottom, next page and current head of the Office of Judicial rape" as a criminal offense, Bracewell says. and a former attorney who is a national expert e Fran Continental Cuisine In the Heart of Tribeca II with the new outdoor cafe"

1/2 off a Second Dinner Entree with this ad 222 West Broadway, Corner of Franklin, Two Blocks North, around the corner frqm NYLS Wed.-Sat,. 12 PM to 11PM -Mon.-Tues., 12 PM-6PM Lunch and Dinner 226-0172 10% off lunch for NYLS Students Use Your Class Notes to Unlock a Greater Understanding of Your Course Material

help place the articulated principle of law from all course materials, use a special symbol by Fernando Cruz Reread and organize illustrated by a case into a framework that to denote your class note insertions. If you Well, its finally time to ''batten down incorporates the relevance of time, place and concentrate mainly on your notes, outline the hatches," to "get serious," and for some, to your notes. evolution of the principle. Thatis, a liitle note them into a condensed set. Use mnemonics "get motivated" about law school finals. It may help you to place a case in the proper wherever you can. means one thing: welcome to the end of the There is a good reason for expending context when you study for exams. Remem­ These are only a few suggestions on semester - papers are due and there are finals so many hours in a classroom: it allows you to ber that law is not static. Law professors seek how to use your notes more effectively. You to be taken. connect what you have read to a greater un­ to test not only whether you know what the should use them together with any other tech­ For some students, finals are a pe­ derstanding of the course material. Listening law is and how to apply it, but also why it niques that may work for you. Ultimately, riod of self-determination ("I can rise to the and taking notes in class has enabled you to exists the way it does and where it may go. you want to end up with some sort of study challenge"), but for many others it is a time of embed knowledge into your subconscience. material that reflects what actually happened panic ("I don't care how much I thought 1 Your notes can assists you to recall the logic Seek clarification of in class. This will help you link "what the law knew, I really don't know anything and I (or lack thereof) of classroom discussion. They is" to what may be asked in an exam. Good don't have time to learn it all). Somehow, it also can help you to synthesize external facts fuzzy areas luck. seems like it was only a few short weeks ago into a framework that reflects the current from your professors. that you sat in a new classroom with a new status of the law. But you really have to sort professor. Now, however, you may be think­ out the essentials from whatever you've writ­ Once you've sorted through your notes New York ing, "Whoa, it's almost the end and I don't yet ten in your notebook and have recognized any fuzzy areas, consult have the big picture." Not to sound an alarm your professor during his or her office hours. but, ... have you started your outlines yet? Reflect on why you Don't wait for the review class, do it now. Law Sch·ool Don't despair. You are not doomed chose to write down Before going to see the professor, review the to failure simply because you haven't begun area of law covered by the fuzzy notes and Public Interest an outline. Honestly, I have yet to determine the information. reacquaint yourself with the cases discussed whether outlining truly contributes to an­ in class. Don't forget, bring the notes in swering that all important question on the Studen ts often miss crucial insights in to question with you. Campaign final exam and getting a good grade. There gaps in understanding when they fail review are many students who dismiss creating an their notes. They should reflect upon what Incorporate your notes outline at all - and they do just fine. Person­ they initially understood when they first read ally, I continue to outline, if only to err on the an assignment. Students need to link that into your study aid. side of caution. However, even if you do initial understanding to what the professor Special to the Reporter outline, your class notes deserve more than said the case really emphasized. This way, Once you've gotten a grasp of the mate­ just a cursory review -- they can help you to they can then ferret out a concise understand­ rial in your notes, incorporate this new knowl­ "Although we are probably the newest improve your chances of getting a better grade. ing of the material. Additionally, notes can edge into your study materials. If you outline member in attendance, I think we've come a Here is how: long way in our short tenure and I hope we're able to build our school's Public Interest Coa­ lition into something great," Jeff Slate told a recent board meeting of the National Associa­ Centennial Gala Honors tion of Public Interest Law. Slate, a second year student and chair of New York Law School's Public Interest Coali­ tion, was accepting the nomination to a na­ "Hank" Greenberg, NYLS '50 tional at-large seat on NAPIL's executive board on behalf of the school. Although NYLS­ choice and everyone was "dressed to the Greenberg was honored for his outstanding PIC did not win a seat on the board, Slate is by Jason Oshins, nines". The dance was also the first chance for leadership in the American insurance indus­ optimistic about the future of PIC. Esq. NYLS"9 l many participants to greet incoming dean try. He is truly a man worthy of New York "Things are really coming together," Harry H. Wellington. It was a grand way for Law School's most prestigous award. Then Slate said recently in an interview. "Since On Thursday, November 7th, at pre­ the new dean to see New York Law School in the dance floor was filled as we all danced to PIC's founding in 1990 we have been able to cisely 6:30 PM, well over 800 New York Law action. the tunes of the Arty Quentzel Orchestra. raise thousands of dollars. With the support of School alumni, faculty, administrators, stu­ The Centennial Gala will serve as the The party ended at about 11 :30 with the students, the administration and the SBA, dents,familyand friendsgatheredattheGrand vehicle for New York Law School's emer­ everyone commenting on what a great time we were able to give out three grants last year Hyatt to officially kick off the Centennial Cel­ gence into the upper echelon of urban law they had and hdw much they look forward to totaling almost $6,000." ebration. The gathering honored Maurice schools. Toward that end, Bernard Mendik, next year's gala. Ona personal note, I'd like to The grants, given to reimburse qualify­ (Hank) Greenberg, NYLS '50, chairman and NYLS '58 and chairman of the board of trust­ thank my dancing partner, Cindy Pressman ing students who take non-paying summer founder of AIG, the American Insurance ees, announced that he will further contribute for her nimble moves on the dance floor. Hope jobs in the public sector, were received by Group. - the $25,000. needed to reach the $10 million to see you all again next year. Christine O'Connor, who worked for the The dinner dance committee, headed by mark of New York Law School's $15 million Brooklyn Bar Association Pro Bono Project, Harris Cordon Miller, NYLS '82 and Linda campaign. Risa Procton, who worked for the Philadel­ Cassano, NYLS '73 produced a pleasant, well Now to the event: After introductions phia Public Defenders Association, and organized evening. Black tie was the attire of by Dean Simon and Mr. Mendik, "Hank" Darlene Milowski, who worked for pro bono environmental lawyer Matthew Davis. In its first full academic year as a nation­ ally recognized public interest support group, PIC has set three goals for itself. "We want to expand membership, raise more money and Students Fight for Constitutional Rights give out more grants," said Slate. He added that the workshops he attended at the national conference, held October 26 and 27 in Wash­ continued from last page ington, D.C., were invaluable inboth the stimu­ lus and ideas they provided-:- university," Stecher says. the administration's members. records private. "! met some great people who are doing Minnesota students say that the The privacy of campus judicial hear­ "I don't think the reach of the Buckley great things," said Slate. "There is nothing school's director of the Office of Judicial Af­ ings is at issue at the University of Georgia. A Amendment has been resolved," Bezanson more exciting, in my opinion, than law stu­ fairs, Betty Hackett, has unilateral power over student newspaper editor has filed a com­ says. "Clearly, there's a conflict in some cases dents doing something a little selfless in an a student's fate. "Say you get a letter accusing plaint in Fulton County court against the uni­ to the press' right for publication against the effort to aid their communities." you of a crime," Stecher says. "You go see a versity, saying two incidents in which the individual's right to privacy and the In an effort to build support on campus counselor, who is Betty Hackett. You talk to school denied the newspaper access to hear­ institution's right to maintain that privacy." PIC will be sponsoring several events. ''We're her, and she makes a recommendation. She ings violated their First Amendment rights The people who will decide the out­ going to be raffling off another bar review gift then becomes the prosecutor of your case, and the state's open records laws. come of these cases and subsequently will certificate during the exam respite periods," which goes into a closed door hearing. She is Red and Black editor Jennifer help define the scope of power in the campus said Slate. "We're also hoping to have two not obligated to tell you during counseling Squillante says the two hearings involved judicial system is well equipped to handle panels. One will be a follow-up to our panel that she will be prosecuting you." charges of hazing and underage drinking questions of academic misconduct and that a last year on the new civil rights legislation; the Hackett, who did not return tele­ against two fraternities. university has a right to do so. other hopefully a forum with the students phone calls to her office, did tell the Minnesota "Our contention is that educational But, inregard to the question of juris­ who received grants last year." daily that, "I wouldn't be here if I didn't think records are not brought into play," Squillante diction over criminal offenses and the guaran­ NYLS-PIC will hold its next meeting on it was a fair system." says. 'We're starting with (these cases) be­ tee of constitutional rights, Bezanson says, Tuesday, November 19 atS PM. All interested Currently, the committee reviewing cause it's the most obvious. Theydon'thavea "As a general rule, the college systems have students are urged to attend. For additional the judicial system is writing two proposals leg to stand on as far as the Buckley Amend­ been found to be consistent and the courts information, contact Jeff Slate through his for changing the system-one submitted by the ment goes." tend to defer to the peculiar needs of the mailfolder or the SBA office, X125, or Helena students and faculty members, the other from The Buckley Amendment requires universities and what is best suited for them." Prigal in the Office of Student Services, 5th universities to keep student educational Floor A Building, X318.

November 18, 1991 New York Law School Reporter Pages ~❖

]F ..·· (C 1Ul §

Brian Schwartz, 2L ''Pee-Wee Herman ... because Pee-Wee and a recently appointed Justice probably Elisa Vasquez, 3L have the same views on the scope of the First ''Woody Allen ... because for Amendment." the first time in the history of the Court there would be someone on it who hal: some insight into human nature."

Marcia Thomas, lL "Mr. Spock .. .logic might be a nice change."

Charles Maslin, lL ''Under Dog... because he would represent the rights of all underdogs."

Q. Ifyou couU appoint Kenny Schuster, 3L one ceCe6rity to tlie ''Norman Mailer ... because he's a well-reasoned and 'US. Supreme Court, thoughtful maniac. He wlio wou{a it 6e, ana would be in good company on the Court." wliy?"

Teri Roberts, lL ''Norman Lear ... because he's a maverick on social issues." ~ Mike Simone, 2L "Shirley McClaine-.because she's a liberal who would live forever." Kevin Walsh, 2L "Madonna ... because she wouldn't be intimidated by Long Dong Silver." DS Miloski New York The Right At Night Law School Student Bar

by Thomas Smith well. Will Teddy stand up just before the or heaven forbid cotton?" Association verdict in the Palm Beach trial, point his finger WOMYN'S RIGHT TO at Willie and his lawyers and cry, "Shame, "Gee whiz, I don't remember." News Shame, Shame?" CHOOSE - VICTORIA'S SE­ "Don't remember!?!" The Senator CRET OR CARTERS ? Sorry Willie, but he's your uncle and from Massachusetts boomed, "I remember (SHAME, SHAME, SHAME drinking buddy and between Easter weekend all of them!" ON YOU FOR ASKING!) and what has followed, there is just too much Student Bar Association News fodder for the cannon. Don't despair, just say "Their names?" Willie asks. Greetings from the S.B.A.! It is mid­ you're a victim. What the hell, everybody else semester (believe it or not) and the Executive Recently, true to our Night School is these days. So off to Palm Beach ... "No damn it, their underwear!" Board would like to give you an update on schedule, my wife and I settled into to catch what has been happening and on what is Ted Koppel' s Nightline. Topi cfor the evening "Does it really matter, I mean golly upcoming . - Sen. Ted Kennedy's recent speech at ... Picture it, Easter Sunday breakfast at Uncle Ted, I tried to do everything else Attendance at S.B.A. meetings has been Harvard, in which he was to take responsi­ the Kennedy Compound South with Teddy, right. I had her near the ocean, near the pool. fantastic, even in light of the tremendous prob­ bility for the "faults There was water, lems that we had scheduling meetings while in the conduct of my water everywhere; working with the new master schedule. Sena­ private life." Believ­ but I couldn't find tors have been doing a great job representing ing faults of that a bridge any- their respective sections and divisions. I would magnitude to be as where ... Wait a like to remind everyone, to feel free to speak large as those in San µol\E.'f, 'hJ'R~ minute ... I remem- with your representative regarding any con­ Andreas and the t,.pi 001~ TO ber, Victoria's Se­ cerns that you may have and thatS.B.A. meet­ time needed to enu­ 6~1.!E.Vt- Wl'P''S ~ cret. Yeah that's ings are open to the entire student body. We merate them equal to c."° 1R6oY what they were, I encourage your interest and participation. The the play time of the °™'~ '/t~R-·-· think." next Senate meeting is scheduled for Novem­ audio cassette ver­ ber 18 at 5:00. The location will be posted on sion of War and "Amateur." the doorof the S.B.A. office (C-101) on the day Peace we drifted off Ted sneers as he of the meeting. If you can not attend a meet­ to sleep as Teddy looks for a back ing, but are interested in what transpired, droned on. Roused door to slip out. please feel free to stop by to review the min­ from our slumber by utes posted on our door. Look for the S.B.A. a toothy-smiled \ minutes in upcomingissuesof the REPORTER. morning show host­ Obviously, So far, the Senate has allocated approxi­ ess, we lay amazed Teddy needs to mately $12,000 to the various student organi­ at the fact that Teddy have long talk with zations. Thus, $7,000 remains available for the wasn't on the screen. Willie, He should Fall semester to handle additional requests Sipping morning resurrect his from student organizations. Be sure to check coffee we discussed "Shame, Shame, the calendar in the student lounge for upcom­ the brevity of his Shame", rhetoric ing events! Also, the Budget Commission is speech and con­ and give Willie and considering various proposals for making a cluded Ted's confes­ his lawyers a semi­ contribution of sorts to NYLS in the event that sions must be in the o ,stnbuteo Oy Tr,bune Media SefVICes nar on the sensi­ we have a remainder of funds at the end of the form of a mini-series tiveissueof under- school year. We encourage your input. Please and we'd catch it on garment selection. submit any ideas as soon as possible, since we video during the ,;e- I suspect he al­ need time to plan the implementation of those mester break. Patrick and Wi\\ie recounting the previous ready has sensitized them, and in turn they ideaS< night's escapades while viewing a re-run of a will do their best to sensitize the jury. We'll We hope that the remainder of your Until now I was able to avoid being "Bridge Too Far." Teddy chides the young­ soon find out just how important under­ semester continues smoothly into exams. As lured into the "he said, she said" contro­ sters for, at least of what he can recall, their wear brands are when it comes to answer­ always, we remain sincerely yours, versy emanating from the Easter weekend behavior, "I take you two out for the time of ing the latest of latest threshold questions, Elizabeth, Kathy, Jack, Doug, Dineen, Palm Beach party. But recent event: Sen. your lives and one ends up with a baker's "Whether or nqt the wearing of a particular Val and Glenn. Kennedy's attempt to recapture his credibil­ daughter and the other ends up with a thief ... brand of underwear denies a womyn the ity in a transparent confession using by the way what kind of underwear did they right to make a rape complaint?" Harvard's Kennedy School of Government have on? as a backdrop; his performance during the Selecting Willie's lawyers, possessing Thomas hearings; his "Shame, Shame, Patrick jumps to their defense, "I don't lingerie expertise, must have been difficult. Shame," sermon on the morn of the Thomas know what my girl had on. All she did was Starting with descendants of Salem Witch vote; his lame and belated attempt at chiv­ drink, talk, drink some more and ask if I knew trial prosecutors ... those of us who are the alry to protect the honor of Anita Hill; and Gerald o's or Maury Povich's phone number." product of ill-informed "Euro-centric Edu­ the offering by the defense of the Palm Beach cation" remember those guys - If you sank alleged rape victim's undergarments into "Oh Patty me boy, I'm your uncle, you in the water you were telling the truth, if you evidence was just too much ignore. can tell me ... what kind of skivvies?" floated you were lying and therefore a witch. But after careful thoughtTeddyurged them Teddy's depth of sincerity equals that "What difference does it make?!? Well to look elsewhere. Who could blame him ? of Joe Izuzu. I'm convinced, despite the lack alright,ifl had totakeaguessl'd say Frederick's The last time a Massachusetts town (hint- it of tears, he must have conferred with the of Hollywood." starts with a "C") observed a "sink or float" writers of Jimmy Swaggart's "I've sinned" trial someone didn't come up and the other speech. The recent ruling to admit the al­ "What about thatthiefof yours Willie?" wasn't burned at the stake - just re-elected! leged victim's underwear into evidence, the "Now It Can Be Told" testimony of three "C'mon Unc," Patrick continues, Remember, you read it hearfirst, when other women William Kennedy Smith (no "Willie's girl probably just wanted some sou­ Willie's lawyers get finished cross-examin­ relation - to me that is) allegedly attacked venirs to remind her of a night with the ing witnesses they'll make Senators Specter and Teddy's air strike on Associate Justice Kennedy boys." and Hatch look as tough as Captain Kanga­ Thomas under the guise of defending roo and Mister Rogers. And when its all women's rights makes the "he said, she Teddy shoots back, "If all of them did over we may have to recommend to our said" contest not only a question of the that we'd have to redecorate this joint twice a future clients, "Play is safe. Stick to Carters, adverse parties' credibility but Teddy's as year. Well Willie what were they? Silk, satin, at least when you're in Florida or Massa­ chusetts. Save Money with Reporter Advertisers' Special Discounts for NYLS Students

Times are tough, the holidays are bers Street, offers its very low prices-low almost upon us, but many REPORTER adver­ mas Street, under the yellow awning, offers students. They also offer 1 /2 off the second enough for a weekly trim-tell them you saw tisers have come together to help New York NYLS stuents a 10% discount. dinner entree with our ad. their ad in the REPORTER. Law School students stretch those little green •Raimo Pizzeria, at 137 Duane Street, •Cafe Society, 915 Broadway at 21 •LeRoy' s Restaurant, at the corner of George Washingtons. They support the stu­ offers NYLS Students a 10% discount. Street, offers free admission and 1 /2 off drink West Broadway and Avenue of the Americas, dents at NYLS by purchasing advertising in •Toe Square Diner, at 33 Leonard prices to law students on Thursday nights. offers 10% offlunch, between 11:00and 12:30. the student newspaper and by offering a Street, a long timeadvertiserin the REPORTER, •Mega Fitness,at611 Broadway,2nd »Toe Burrito Bar, 305 Church Street, student discount. So, do us all a favor, includ­ offers NYLS students a 15% discount between floor, offers a NYLS special discount of $175 offers a complimentary Margarita with din­ ing yourself, and stop by the following stores 6:00 and 11 :00 AM and again between 2:00 and off a year long membership. ner--just show them the ad. Most discounts and restaurants: 9:00PM. »Tony's of Worth Street, at 83 Worth »ToeFranklinCafe,at222WestBroad­ Street, offers $1 drafts to NYLS students. require student 10--some require a coupon. •Fancy Deli on Thomas, at 58 Tho- way, offers a 10% discount at lunch for NYLS »Toe State Barbershop, at 82 Cham- Page7 Hospital Liability for by: Randolph Frank Iannacone, Esq.1 example, the physician's liability for the ac­ tions hospital employees who act under his or EMPLOYEE VERSUS THE INDEPENDENT NYLS '90 her direction in the care of patients in the CONTRACTOR: THE DOCTRINE OF 11 hospitals. The content of a hospitals bylaws hospital is dependant upon establishing the AGENCY BY ESTOPPEL in its internal organization structure are to a 20 INTRODUCTION existence of a master-servant relationship. large extent dictated by JCAH standards. This in tum calls for application of the bor­ In recent years the rule of non-liability of a rowed servant doctrine21 and consideration of hospital for the acts of independent contrac­ The law of medical malpractice is constantly A review of JCAH standards dispels the no­ thepossibilitythattheemployeemaysimulta­ tors has been eroded by the creation of various evolving in the area of hospital liability. This tion that hospitals are merely places where neously be serving two masters.22 exceptions such as the doctrine of agency by may be because of changing societal needs physicians and surgeons provide care and estoppel or estoppel to deny agency; some­ and continuous} y developing concepts of jus­ fortifies the public's perception of the modern A hospital's vicarious liability for the acts of times referred to as apparent or ostensible tice and fair dealing. While this article is in no hospital as a multifaceted health care facility its own employees is now firmly established agency.35 way an exhaustive treatment of the subject, it responsible for the quality of medical care and in most jurisdictions, despite earlier rulings attempts to clarify some of the concepts in this treatment rendered. Under JCAH standards, that some hospitals enjoyed charitable or gov­ When the patient seeks care directly from the area of the law. every hospital must have a governing body ernmental immunity, in that hospitals could hospital, the courts have utilized the doctrine which is responsible for "establishing policy, not control actions of their professional em­ ofapparent or ostensible authority to hold the The discussion starts by giving some reasons maintaining quality patient care, and provid­ ployees. A hospital's liability for the acts of its hospital liable for the malpractice of an inde­ for holding a hospital liable for negligent ing for institutional management and plan­ attending staff physicians remains dependent pendent contractor.36 Two factors that have rendering of medical care. It covers some ning."12 on proof of agency or control. been noted by courts in support of the impo­ standards of care that courts frequently apply sition of liability on a hospital under this to hospitals, along with the role of that the The JCAH standards emphasize the predomi­ Courts generally impose vicarious liability on rationale are: (a) a likelihood that the patient Joint Commission on Accreditation of Hospi­ nant role of the medical staff in supervising hospitals for the malpractice of a physician­ looks to the hospital rather than the individual tals plays in creating those standards. the delivery of health care in the hospital employee under the doctrine of respondeat physician for care; and, (b) the holding out by 37 setting. Of particular significance for mal­ superioror vicarious liability.23 In addition, it the hospital of the physician as its employee. The analysis then covers the issues involving practice cases are those JCAH standards gov­ may be possible to establish a joint venture vicariousliabilityorrespondeatsuperior. The erning quality assurance and utilization re­ between a hospital in a physiciangroup which inquiry then turns to material on the doctrine view. Thehospitalisrequired to maintain "an would subject the hospital to vicarious liabil­ of agency by estoppel and the use of this ongoing quality assurance program ... to ... ity for malpractice on the part of the members The three elements which must ordinarily be doctrine to further erode the rule of non­ systematically monitor ... the quality and proved in order to prevail in an action against 13 of the physician group. Under vicarious li­ liability of hospitals for the acts of indepen­ appropriateness of patient care." ability, liability of the hospital is based on its a hospital for the malpractice of an indepen­ dent contractors. Material on corporate neg­ relationship with the physician rather than dentcontractor /physician based upon agency ligence is also presented. Finally, hospital In addition to general standards, specific JCAH because of the hospital's own negligence.24 by estoppel are: (a) a justifiable belief by the liability for the improper care in selection, standards govern virtually every hospital ser­ patient that the physician is the hospital's maintenance and use of hospital equipment is vice area. In each instance there are standards In order to establish liability under the doc­ agent; (b) which arises from a representation discussed. The discussion concludes by sug­ relating to staffing, equipment, record keep­ trine of respondeat superior or vicarious li­ by the hospital; and, (c) caused the injury.38 gesting legislative reform as a possible solu­ ing, and quality assurance. JCAH Standards ability, the plaintiff must establish two ele­ tion for the problems that our health care relate to several topics of interest in malprac­ ments: (a) that the physician was a servant or More is required than a mere subjective belief facilities will face in the coming century. tice actions, including: (a) diagnostic radiol­ agent of the hospital; and, (b) that the physi­ in agency on the part of the injured party.39 ogy services; (b) emergency services; (c) hos­ cian committed the tort within the scope of his The injured party must rely upon the THE EXPANSION OF HOSPITAL LIABIL­ pital sponsored ambulatory care services; (d) or her employment.25 defendant's representation of agency in such ITY FOR NEGLIGENCE IN THE infection control; (e) medical staff; (f) nuclear a manner that it causes injury. Moreover, DELIVERY OF SERVICES medicine services; (g) nursing services; Traditionally, the hospital has not been held "(t]he rule normally applies where the plain­ (h) pathology and medical laboratory ser­ vicariously liable for the tortious actions of a tiffhas submitted himself to the care or protec­ vices; (i) pharmaceutical services; (j) quality pnys1c1an who 1s a independent contractor.'• tion of an apparent :.ervant in response to an Until the 1950' s most hospitals were protected assurance; (k) utilization review; (l) radiation In New York, the liability of the hospital invitation from the defendant to enter into 40 from liability for medical malpractice by chari­ oncology services; (m) respiratory care ser­ under the doctrine of respondeat superior or such relations with such servant." table or sovereign immunity. In recent years, vices; (n) special care units; and, (o) surgical 14 vicarious liability for the malpractice of a these immunities have been modified or abro­ and anesthesia services. physician was recognized in the landmark A prior physician-patient relationship between gated permitting hospitals to be held liable case of Bing v. Thunig.27 the treating physician and the injured party under various theories for injuries to patients JCAH Standards, however, are evidence of 2 has caused some courts to refuse to hold the due to medical malpractice. This expanded custom, and not necessarily binding on the hospital liable under an ostensible agency 15 In Bing the plaintiff was severely burned dur­ liability was brought about by the increased courts. ing surgery when antiseptic, which had been rationale.41 Accordingly, if a patient is admit­ importance of hospitals in the delivery of spilled by nurses, was touched off by a heated ted to the hospital for treatment by his per­ health care. electric cautery wielded by a surgeon.28 Here, sonal physician, then there may be no liability VICARIOUS LIABILITY the Court of Appeals held that even though under agency by estoppel orostensibleagency. Recent trends have implications for further the distinction between certain types of medi­ On the other hand, it has been held that the fact expansion of hospital liability. These trends Vicarious liability or imputed negligence re­ cal/ administrative acts were "highly elu­ that the plaintiff contracted with a private include: (a) The importance of high technol­ fers to the legal liability of one actor for the physician does not necessarily preclude liabil­ 16 sive",29 hospitals should be subject to liability ogy medicim?3; (b) the bureaucratization and torts of another. Liability is predicated on under respondeat superior on the same basis ity for the act of an intern under ostensible corporatization of health care, and the accom­ some relationship between the parties, ~ as any other employer.30 agency. Nor does the lack ofa pre-thera peu tic panying loss of professional autonomy!; (c) master and servant. The modern justification contract with the putative ostensible agent the emphasis on cost containment in both the for this doctrine derives from concerns of 5 The traditional test for determining the exist­ necessarily preclude imposition ofliability on public and private sectors ; (d) competition public policy, namely the desirability of a ence of a master-servant relationship is the the hospital.42 among health care providers and marketing deliberate allocation of the risk. 17 Since in the 31 6 right of control test. Although most courts strategies aimed directly at consumers ; (e) course of doing business, the employees of an have paid homage to the right of control test, Agency by estoppel, not surprisingly, been diversification and vertical integrationofhealth enterprise can be expected to commit certain 7 there has been a tendency to apply variations used most frequently to hold the hospital care delivery systems ; and, (f) heightened tortious acts, it is considered just that the 32 liable for the acts of physicians with hospital­ 8 of the traditional test in the medical context. consumer expectations. enterprise or employer, rather than the inno­ In New York, a courts have held hospitals based practices,~ radiologist, pathologist, cent plaintiff, should bear the cost of such liable for the negligence of their interns, resi­ anesthesiologists and emergency room physi­ STANDARDS OF CARE: THE ROLE OF losses. Also, the enterprise is better able to dent physicians, and attending staff physi­ cians. Several cases have recognized that THE JOINT COMMISSION ON absorb and distribute such cost to the public at 18 cians.33 under apparent agency hospitals may be held ACCREDITATION OF HOSPITALS large through prices or liability insurance. liable for the acts of anesthesiologists,43 radi­ Other factor relied on by courts in finding a ologists,44 and pathologists.45 Many courts apply a national standard to Issues which must be resolved through appli­ 9 master-servant relationship include: (a) hos­ hospitals in malpractice actions. This stan­ cation of principals of vicarious liability often pital control over billing; (b) setting of fees by Liability on the part of the hospital under the dard is often phrased as that of the reasonably arise in medical malpractice cases involving the hospital; (c) provision of clerical and medi­ doctrine of apparent or ostensible agency has prudent hospital operating under similar cir­ hospital liability. In some instances, a physi­ cal support by the hospital at no cost; (d) been most readily found in cased involving 9 cumstances. cian on staff1 at a hospital will be found liable provision of a facility and equipment by the emergency room physicians. Mduba v. for the negligent acts of a hospital employee hospital at no cost; (e) exclusivity of contract BenedictineHospital46 istheleadingNewYork The Joint Commission on the Accreditation of under his or her direction and control. The between hospital and physicians; (f) receipt of case in which the hospital was found liable Hospitals("JCAH") establishes national stan­ hospital as an enterprise may be liable for the a percentage of gross fees by the physician; (g) under the doctrine of agency by estoppel. dards to which all hospitals seeking accredita­ acts of one of its employees. In each case, an lack of other employment by the physician; tion must conform. A JCAH accredited hos­ essential predicate for the defendant's liability (h) long term contract between the hospital Mduba was a wrongful death action, in which pital is required to use the degree of care and is a finding, under ordinary rules of negli­ and the physician for provision of a service the plaintiff alleged that the defendant hospi­ skill which is expected of a reasonably compe­ gence, that the person for whose actions the which is an inherent function of the hospital; tal was negligent in failing to provide blood tent hospital in the same or similar circum­ defendant is answerable has committed a neg­ (i)lack of patient control over physician selec­ for transfusion soon enough so as to prevent stances. Accreditation by JCAH reflects both ligent act or omission. · tion; (j) hospital control over working hours the plaintiff's decedent from going into irre­ the base line of practice required and a re­ arid scheduling of vacations; (k) contractual versible shock, the theory being that the doc­ source sensitive component which takes into Difficulties sometimes arise in applying prin­ 10 requirementthatphysicianscomplywithhos­ tor attending the emergency room failed to account the hospital size and resources. The cipals of vicarious liability to medical mal­ pital rules and regulations; and, (})-standard­ take a blood sample and order blood.47 A Accreditation Manual for Hospitals, published practice cases. Most of these problems stem ized procedure whereby hospital contacts phy­ contract between the defendant hospital and annually by the JCAH, has become the prime from the manner in which the relationship sician on call.34 the doctor provided that the doctor was to resource of minimum national standards for among the principal parties are defined. For Supplement to the New York Law School Reporter

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THE MEDIA LAW PROJECT CABLE PIRACY IN

/ ~ William Meredith,President QUEENS: Jeryl Brunner, Vice President Monica Ashton, Vice President Marcia J. Thomas, Treasurer Adrienne Zariski, Secretary How Much Can You \. _,) IN THIS ISSUE ... Pay? Michael E. Morrah investigates urban combat over cable piracy at ACQ in Queens by Michael E. Morrah '94 without paying for them, ACQ decided to launch pagel a voltage spike, or an "electronic bullet", through the ACQ syste to short circuit illegally installed Fredrik Cederqvist You are sitting at home in front of the TV, microchips. And if you return your box to ACQ to questions the accountability of the media furiously flicking through several channels during have it repaired or replaced, you will be served during the Thomas nomination hearings a commercial break. Several seconds later your with a fine. page 1 screen turns black. Your cable converter box is broken. You go to your cable distributor to have it However, it turns out that the microchips Prof. Seymour I. Feig replaced, and when you arrive, you are told that or "pirate chips", were installed by ACQ service­ offers his expert advice on the you are illegally using your cable company's ser­ men who solicited viewers by offering a one-time­ entertainment industry vices and that you will be served with a $110,000 only "lifetime subscription" to such premium pay by Adrienne Zariski fine if you do not comply with the company's channels like HBO, SportsChannel, foreign-lan­ page2 wishes. guage programming, Playboy Channel, and Bravo for a one time fee of $3(X), cash. Upon installation, Prof. Michael Botein This practice, the work of American each subscriber was given a business card with a expounds upon the future of Cablevision of Queens located in Astoria, Queens, beeper number if there were any problems with communications law is the newest method of combatting cable theft. the pirate chip. Unsuspecting viewers like Joan M. by Gail Johnston Fed up with the rising ingenuity and sophistica­ of Flushing, Queens thought they were getting a page2 tion of people who wish to see Pay programs good deal when offered the pirate chips by ra cont'd on page 7 Jayl Branner on the economics behind the X rating page3

Steven Onne rails against the FCC for abandoning MEDIA COVERAGE OF THE the Fairness Doctrine page3 THOMAS HEARINGS: SETTING A ToddV. Lamb on television's portrayal of current NATIONAL AGENDA legal issues page4

David Taplitz By Fredrik Cederqvist '94 Allowing unidentified people to muses about obtrusive filmmaking. disperse information through the media page4 The accusations of sexual harassment lev­ shields those people from taking respon­ ied by Professor Hill against newly confirmed sibility for their words, contrary to the Rich Ballerini, our stream of Supreme Court Justice Clarence Thomas gripped right conferred to defendants in our courts. consciousness writer, assesses the media's the attention of the nation. Staying in on a week­ Leaking the FBI report to the public was illegal, role in litigation end evening to watch television gained a new after all. Some worr_y that the right of newspa­ pages found respectability. Aware of its power, the pers and the media to report such information media took full advantage of the situation. While will open an avenue for interest groups to un­ Monica Ashton viewers watched endlessly for answers they would fairly attack future nominees seeking what is covers the damages an not receive, the media helped to shape a national designed to be a nonpolitical post. However, by artist can recieve when a publisher agenda against sexual harassment. showing anger only towards the government breaches his/her contract who leaked the information and not the media page6 The accusations against Thomas first which reported it, the American people gave gained prominence when an "unidentified" staff credence to the notion of the public's right to Scott Mackoff member of a Senator on the Judiciary Committee know such information if it is made available. discusses t.v. in politics leaked information provided by a confidential FBI page7 report. The result was public outrage against the The contradictory standards to which The views presented In this publlatian are thOM ol the "system" that thrust an unwilling witness into the the public held the government and the media individual authors il.lld do not necnsariJy repraent the limelight and that tarnished the name of a man opinions of New York Law Schoo~ th• !ttporter or the Meda Law Projoct. who had overcome poverty and bigotry to serve for the highest court in the land. Few, however, Continued on Page 4 pointed fingers at the media. An IntervievV Foreword ... vVith Prof. The Media Law Project is a student organization dedicated to promoting an awareness Botein of issues in media law. In part, media law consists of art law, communications law, computer Prr(mor llidta,l Boteia law, regulation of the broadcast, cable and recording industries, publishing law, telecommuni­ By Gail Johnston '94 cations law, entertainment law and intellectual property. As evidenced, Media law is quite diverse. It concerns the rights to and transmissions of information. The economic significance Ask Prof. Michael Botein where the jobs of this, as we enter into an information age, is realized by corporations that grapple for for lawyers will be in the next few years, and he'll distribution and broadcast rights. Not surprisingly, New York City and Los Angeles are the hubs tell you that you won't like the answer. ci mum ci this activity . "Students are thinking too much about the sexy areas" of law such as broad­ In anticipation, the Communications Law Center was founded in 1977. Since then, cast and cable television law. ''In 20 years NYLS has provided its students with one of the most outstanding and comprehensive media law curricula in the nation. Recognized paradigms UCLA and NYU both pale in comparison broadcast will be a third of its current size." to the NYLS program. In an effort to futher tradition and academic excellence at NYLS, the "So many students want to .enter enter­ Media Law Project presents the first in a series of supplemental newsletters. Our eventual goal tainment or sports or broadcast and cable law, but is to circulate a representative legal and topical newsletter to faculty, students, alumni, other law the jobs there are limited, and in broadcast and schools and legal associations. We believe other organizations on campus should strive to do cable the number of jobs is sliding," says the 1969 the same. graduate of Cornell University Law School. -Botein has been a professor at New York Kudos goes to: members of the Media Law Project, the tireless staff of the NYLS LawSchoolsince1977,servingfrom 1977-91 as the Reporter "the best law school newspaper in the country'', Professors Allen S. Hammond IV, directorof the NYLS Communications Media Cen­ Michael Botein and Seymour Feig, the SBA and Monica Coen for their continued support, the ter. He is also co-author of the West casebook Sports and Entertainment Law Society, Peter Stern and the Office of Public Affairs, Steven Goot, "Cases and Materials on Regulation of the Elec­ Eric Zohn and everyone else who made this possible. tronic Media" with D.H. Ginsburg and M.D. Di­ rector. If the traditional areas of communica­ tions law are losing their import, then what's left? William Meredith Ill '93 Botein' s answer is two-pronged: telecom­ President, Media Law Project munications and international law, and ideally international telecommunications. Telecommunications includes any form of point-to-point transmission of video, voice or data. "It's much more than just telephones," he said. "With the European unification on Jan. 1, 1993 that market and the way Americans deal with it" will be the trend of the future. "The new Euro­ pean Community will be a bigger market than North America." THE ENTERTAINMENT "That's where the business will be in the next 10 to 20 years," he insists. He also practices what he preaches. WORLD ACCORDING Boteinrecentlyreturnedfromastintteach­ ing at the University of Poitres, about 200 miles south of Paris. The course ran from mid-April to TO FEIG Professor Seymour l. F~ mid-July and was supposed to bean international look at communications, intellectual property and By Adrienne 2.ariski '93 bia Pictures and was approached by the William entertainment regulations. Morris Agency, Inc. At William Morris, I be­ "But the students didn't have the back­ Professor Seymour I. Feig is an adjunct came a member of the business affairs depart­ ground. They knew nothing of French regulations. professor of law at New York Law School who ment and alsoreceived sub-franchiseasanagent. The class was supposed to be in English, but they teaches Entertainment Law: Drafting and Nego­ I represented all elements including writers, only had textbook English. They could read per­ tiation and Entertainment Law I &II. Professor directors, producers and was involved in mo­ fectly well, but they couldn't understand me be­ Feig's comprehensive courses touch upon all tion picture and television packaging. cause they had been taught by British teachers. It aspects of media law and emphasize the art of In 1967, I joined GAC/CMA (prede­ meant I had to know whatever French vocabulary negotiating and contract drafting. cessor to International Creative Management, would come up in class. It was kind of nuts at Inc.), and later became a Vice-President at ICM times." 1. TELL ME ABOUT YOUR BACKGROUND where I represented most of their packages in­ In addition to the language barriers, IN THE ENTERTAINMENT INDUSTRY. cluding the "JACKIE GLEASON SHOW". Botein - or more precisely the students - faced From 1970-72, I was General Counsel and Assis­ another challenge. As a young man, I worked as a professional tant Secretary of the National Association of ''They were used to the lecture method, musician playing the bass fiddle. After graduat­ Theater Owners, Inc. where I gave advice and not the Socratic method. Intellectually they could ing college at an early age, I took a clerk position counsel to approximately 8,500-10,000 theaters. deal, but emotionally they couldn't deal with be­ at RKO Radio Pictures, Inc. It was at RKO that In early 1972, I became Business Affairs ing called on in class." I was encouraged toattendlawschool. I worked Director of Brut Productions, Inc. (a subsidiary After overcoming that obstacle, "I gave full-time at RKO and attended New York Law of Fabrege, Inc.) and was involved with produc­ them a U.S. final exam, a fact pattern." In France a School at night. ing "A Touch of Class" and other films. final exam would be more of a developmental I graduated from law school in 1950, Later in 1972, I joined Gulf and Western history of a doctrine, but Botein said he wanted but did not take the bar exam until 1955. From as Director ofBusiness Affairs and General Coun­ them to understand where American lawyers were 1950-55, I worked in the Sales Department at sel for Paramount Records, Famous Music Cor­ coming from, what they had been through. ''There RKO. I was urged to take the bar exam by the poration and Athena Cable. was literally hand holding." But in the end they legal department, because RKO, like most major In 1974, I was transferred to California asked him back, and he intends to return at the end movie companies, was involved in competitive to integrate Paramount Records to ABC Net­ of next year. b~dding, and they wanted a lawyer to head the work,. since Paramount had been sold to ABC. In the meantime it's off to the University Sales ·Department. In 1975, I opened my private practice at of Melbourne in Australia in January for two In 1955, as a result of my admission to 598 Madison Avenue. I have since moved to 231 months. Atthe end of April, it's off once again this the New York Bar, I was asked to become Gen­ East 55th Street. My clients have included the time to Hebrew University in Jerusalem for an­ eral Counsel of Buena Vista Film Distribution following: independent production companies other two months. Company, Inc., ·which was created by Walt such as the Emmy Award winning Dovetail Although he says his planned globe-trot­ Disney Prcxiuctions, Inc. Since I was familiar Group/Children's Television Workshop and ting is just the result of good luck, it ties in perfectly with sales, and prior to that year, Disney films Mountain View Productions, The Southern Bap­ with his emphasis on the future growth oflaw and had been released by RKO, I was the perfect man tist Radio and Television Commission, Exclu­ international telecommunications. for the job. sive International Pictures (which possesses one ''The way to get ahead is to figure out In 1958, Disney asked me to move to of the country's largest film libraries), artists California, but I declined to do so, because both such as Irene Cara and Gene Anthony record what's on the cutting edge and stay on it." of my parents were ill and I didn't want to leave them alone. I then spent a short time at Colum- Continued on page 6

Media Law Project Page 2 NC17 - EFFECTIVE CHANGE OR ? ANOTHER WAY TO SPELL X •

By Jeryl S. Brunner '92 pressure." The court suggested that the MPAA will not submit their films to the ratings board. revise its arbitrary rating guidelines. The MP AA believes that serious film makers In the past two years, the Motion Picture 14 months after Miramax was decided, will pay to have their movies rated NC-17, while Association of America (MP AA) has undergone the MPAA replaced the X-rating with NC-17 (no porn merchants will happily remain with the fierce scrutiny. Founded in 1968, the association children admitted under age 17). One of the chief old fashioned X. However, soon after theNC-17 currently dominates the film rating market. Al­ reasons why the x-rating was dropped was to was announced, Parliament Films submitted a though the rating system is voluntary, an unrated avoid the porn stigma that was associated with X. toned-down version of the 1978 hardcore sex movie has little chance for wide release through­ From its genesis, the MPAA never in­ film "Disco Dolls in Hot Skin in 3-D" to the out the United States. tended the X to be equated with sex films. In fact, X MPAA and received an NC-17 MPAA and re­ To obtain a rating, films are voluntarily was traditionally supposed to imply that the mate­ ceived an NC-17. submittedandreviewedbyanadministrativebody rial was unsuitable for children. The X-rating was Similar to the X-rating, NC-17 can eco­ within the MPAA. A rating is assigned by a first given to mainstream films such as "A Clock­ nomically damage.a film. Last month, the pro­ majority vote. The party requesting the rating can work Orange" and "MidnightCowboy." However, ducers of the Ken Russell film "Whore" appealed change the assignment by editing the film. When the association never registered the X as a trademark the picture's NC-rating. The association found Pedro Almodovar's "Tie Me Up! Tie Me Down" and as a result, it was used by pornographers who that the movie's sensuality, language and vio­ received an X, reluctantly, the film's distributor affixed the symbol to their films. lence warranted the controversial rating. The opted to release the film without a rating rather Does the NC-17 take the pornographic rating was opposed because it will undoubtedly than cut two sexually explicit scenes. However, stigma out of the" adults only" rating or is it simply harm the film's release. Most newspapers are the MPAA' s decision prompted Miramax to bring another name for X? Earlier this year Blockbuster reluctant to run display advertising for the pic­ an action against the MP AA to obtain a court Video, the largest video-store chain in the United ture. imposed modification of the X rating. See Miramax States, pulled all NC-17 rated films from their It is clear that the MP AA has failed to Film Corp. v. Motion Picture Association of America, shelves. distinguish adult films from x-rated pornogra­ Inc., 560 N.Y.S.2d 730 (1990). A 1th o ugh One of the cornerstones upon which the phy and the NC-17 is merely an X with a Miramax was denied relief, the court criticized the NC-17 rating is based is the assumption that the sanitized title. rating system because "the rating system cen­ makers will be happy to continue using the X, and sors serious films by the force of economic

THE NEED TO REIMPOSE PUBLIC INTEREST AND LOCAL PROGRAMMING STANDARDS ON BROADCASTERS

By Steven Hsiang Orme '93 ally regarded in New York as secondary televi­ produced television news and public affairs sion stations and for the most part have no programs which address Asian American is­ The Fairness Doctrine, which existed audience in the New York area, fail to serve the sues and articulate Asian American views? - from 1929-1987, was the basis for the require­ Asian American community's public interest The Communications Act of 1934 ment that television broadcasters provide a mini­ and local programming needs. However, there mandated that broadcasters serve the mum of five percent (5%) of programming to are two "UHF" stations that by chance and comm unity's public interest, convenience and public interest and local programming. When political affiliation have developed a measur­ necessity in the operation of the broadcast the public interest and local programming re­ able Asian audience. This is due in large part station and in its choice of programming. Cog­ quirement was repealed, annual programming because these two stations are carried on cable nitive of the power and influence of the me­ reports and filing requirements were also abol­ television systems that have a substantial num­ dium, Congress created the Federal Commu­ ished. Broadcasters now hold licenses, worth ber of Asian subscribers. WNYE Channel 25, nication Commission to regulate broadcasters billions of dollars in advertising revenue, free which is owned and operated by the New York and enforce its mandate. Each broadcaster, by of charge and without any obligations to ben­ City Board Of Education, and WNYC Channel the grant of its license, is expected to serve a efit the populations they are supposed to serve. 31, which is owned and operated by New York geographic area and the population in that One of the communities seriously af­ City, carry substantial amounts of Asian '1an­ area. Yet, the Asian American community's fected by this failure to serve is the Asian Ameri­ guage" programming(programming in Korean, needs are deliberately ignored and attempts to can community. The growth and development Chinese, Japanese, Hindi, etc.). getthe stations to respond to the community's of this community have created enormous pres­ It must be pointed out that the pro­ needs are blocked or stonewalled by the sures and such pressures are resulting in indi­ gramming is entertainment in format and that station's management. The reasons for this are vidual,familyandcommunitydysfunction. The the programming provided is entirely produced painfully obvious. Asian Americans have not need of minority groups and in particular the abroad and the airtime leased and is paid for by cultivated a political presence and they have Asian American community to have access to the "foreign language" producers or distribu­ not made themselves known as a market force. the broadcast medium to circulate ideas and to tors. Despite the fact that the programming is Perpetuating the problem, the Fed­ provide a forum for constructing solutions to enjoyed and viewed by a portion of the New eral Communications Commission has failed the problems is extremely urgent. York Asian community, the greater impetus for to enforce the need for public interest and local The commercial television stations in the stations is the revenue stream that pays for programming. The Commission fails its con­ the New York metropolitan area (WCBS Chan­ the stations' American programming. There is gressional mandate, because it fails to serve nel 2, WNBC Channel 4, WNYW Channel 5, no commitment on the part of these stations to and protect the interest of the population. WABC Channel 7, WWOR Channel 9, WPIX serve the Asian American community's need to Instead it is consumed by its obligation to Channel 11, and WNET Channel 13) fail to serve address important social and controversial is­ serve the interests of the Reagan/Bushadmin­ the public interest and local programming needs sues. istra tion and to broker the power among the of the Asian American community. The station Ifit is universally known that one of the voracious broadcast lobbyists. managers are aware that the Asian American significant populations in the tri-state area are It is time that the FCC stop _using its community is woefully under served by their Asians Americans, comprising about ten per­ authority toadvancea hidden political agenda. programming, but don't care. Asian Americans cent (10%) of the entire population, why is there It is time for the FCC to reimpos public are not seen as a significant or necessary market no obligation on the part of television broadcast­ interest and local programming standards on share and, therefore, cannot get the attention of ers to serve the Asian American community in broadcasters and force the broadcasters to the television stations' managers. the tri-state area? Why do we not have locally respond to the needs of the communities they Even UHF stations, which are gener- are supposed to serve. Media Law Project, Page 3 LEGAL ENTERTAINMENT IN TELEVISION: programming guidelines and social mores

By Todd V. Lamb '94 epilogue the prosecutor was asked why he pushed for a conviction when he knew the parents would ' The role of television in our society has not go to jail. He said that with this case on the changed drastically over the last thirty years. Once books, parents with strong religious convictions a medium purely for entertainment, television has might think twice before refusing medical treat­ developed into a hard hitting advocate for social, ment for their children. political, and legal change. Nowhere is this more prevalent than in legal entertainment program­ L.A. Law has also put a lot of effort into ming. addressing contemporary legal issues. On an episode about a year ago a white police officer Thirtyyearsago,legalentertainmentcame killed an Afro-American teenager while respond­ in the form of shows like Perry Mason. From ing to a call. After an investigation, the police episode to episode the story lines were similar: Mr. found that the officer had done nothing wrong. Mason's client was wrongfully accused of a crime. However, a community activist got involved as Afteralengthyinvestigation(settingupanAgatha counsel for the deceased's family. Through the Christie like who-done-it mystery) the case would media he managed to have the case brought to go to trial. At the trial them ystery would continue trial. At the end of the trial the officer was acquit­ to evolve through the testimony of the witnesses. ted. Though there were few similarities between Eventually the guilty party would emerge and Mr. the facts, the community activist on L.A. Law had Mason's client would be vindicated. The program many characteristics like those of Rev. Al Sharpton. provided high quality entertainment, however it The program suggested that crimes in poor and did not address any of the significant legal issues of minority neighborhoods are not always investi­ the time. gated and prosecuted with the same effort as CUniversal Tele'

By Rich Ballerini '94 case is reported through the media that the put some kind of pressure on the proceeding. party many think twice about bringing the The most publicized trials seem to allow for a The ground work for our legal system case to court? I think so. A party may avoid "campaigning" for an appropriate sentence. suggests many terms that are used in an adjudicating a claim that may result in When Michael Milken was convicted, we saw attempttocompensateadamaged party fairly their very personal "matters" being ex­ a deluge of letters to the presiding judge while not being too generous. Some of these posed to a large audience. The resulting trying to persuade her on the severity of his terms include: reasonable, foreseeable, fair­ issue is a distressing one. Many valid claims sentence. Some said Milken would rot in jail ness, public policy, economic efficiency, etc. would be kept out of court due to this type of and a great mind would go to waste. Others Refined as it is, there are areas of our legal fear. stated that he was a criminal of the worst kind system which most of us do not agree with. who swindled innocent people all in the name Somedisagreementsarewidelysupportedby Similarly, this type of fear can affect of greed. I do not know if the judge was members and non-members of the legal com­ the party who is the object of a claim. A swayed by the pleas from either side. Still, I do munity alike. When conflict arises, there is company who is on the receiving end of a know that the exposure through the media always the possibility that the courts will claim may be intimidated by the bad press caused that atmosphere. Is such exposure correct a ruling that has fallen out of favor or that a publicized court action may bring. Yet, dangerous? Sometimes I think it is. is behind the times. here the claim may or may not be a valid one. Besides the expense of the trial, the bad press Perhaps I have leftoutthegood points The courts can correct themselves, coming out of the trial proceeding may cause of the media's effect on our legal system. That but what of an outside influence such as the is another story though. I do not have a clean a financially substantial amount of harm. media? What of the influence of the media on concise conclusion on the few points I have the United State's legal system? What power Years of public relations and advertising brought up. It is a little ironic how our highly does it have over our legal system? How are can be diminished if not destroyed be­ evolved legal system is subject to the possibil­ participants within the system influenced? cause it does not matter whether the ity of manipulation through the media. It What of potential participants? Is the influ­ claim was valid or not. So, an innocent seems that the legal system is just another ence a more positive one? Or could it be a party may have to settle a claim that casualty of the media stream. more negative influence? These are just a few lacked any basis whatsoever. questions to think about. I am sure there are many more. Finally, what effect does the media have on sentencing procedure? How does Icannot say that I have been a party to media affect the final ruling in a case? I am a legal proceeding. Yet, I suppose that being sure many would say that it is a small one. Yet, an adversary in a court case is a very personal the media exposure that a trial receives must matter. Woulditbefairtosaythatif a party's

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Media Law Project, Page 5 DAMAGES AND THE ARTS

By Monica Ashton '92 Vice President/Eve that HBJ had not acted in good faith. The would have given him a chance to make a Media Law Project outline, incidently, helped to establish a profit, the defendant should not be allowed to more objective standard for a publisher's deprive him of that performance without com­ In Contracts I, having been sub­ acceptance of a manuscript, and Senator pensation unless the difficulty of determining jected to the wonderful world of "dam­ Goldwater was able to keep his advance. its value is extreme."2 The Court then deter­ ages", I was immensely disappointed to mined a "reasonable estimate ofroyalties"3 by discover that an author at one time could In 1984, in Dell Publishing Co. v. computing percentages of the likelihood of only collect nominal damages when his Whedon,577F.Supp.1459(S.D.N.Y.1984),a the song reaching the top of the charts based manuscript was rejected by a publisher, court awarded reliance damages to an au­ on similar songs reaching the same status on according to Freund v. Washington Square thor who had written a 12-page outline and the charts in the same year. The court found Press,Inc.,34N.Y.2d379(1974). lnthatcase, more than one half of a manuscript which the analysis was sufficientto award damages. the court held that it was too speculative to had been approved by the publisher, but determine what damages were suffered by was told the manuscript was unsatisfactory Of course, some other courts the author, since "a stable foundation for a upon completion. The court there held that have turned the other way, limiting Contempo­ reasonable estimate of royalties" had not a publisher owes the author a good faith rary Mission\ but at least today, authors and been shown. Ibid, at 383. Being a composer opportunity to revise the manuscript and artists are able to recover damages if they can myself, I remember being upset by this, and he must give the author a detailed explana­ show a reasonable basis for determining those I vowed to look into it at a later date. tion of the problems before rejecting it. The damages. author in this case not only was able to keep So, this semester, I decided to take her advance money, but she was also not Publishing Law (I highly recommend the obligated to give the publisher first pro­ course) whereupon I was happy to find that ceeds from the subsequent sale of the book, 1 see, Contemporary Mission, Inc. v. Famous over the years, the Freund case has been since the contract was terminated. Music Corp~ 557 F.2d 918 (1977). overturned. Today, an author in the same 2 Contemporary Mission, Inc. v. Famous Music position may recover reliance damages, and Moving away from publishing con­ Corporation, 557 F.2d at 926 (1977). in some cases, expectancy damages can be tracts, the courts are beginning to use a 3 Ibid, at 926 (1977) quoting Freund v Washing­ awarded to artists and authors who show a more objective test in determining what ton Sq. Press, Inc. 34 N.Y.2d 379 (1974). reasonable estimate of their losses.1 damages should be awarded to artists in 4 see, Zilgv. Prentice Hall, 717 F.2d 671 (2d Cir. other similar situations. For instance, in 1983) (publisher must make "minimum" ef­ The landmark case which changed 1977, a court awarded damages to a group forts to satisfy obligation to publish in good the standard came in 1982 with Harcourt of priests who wrote a hit song and were faith). Brace Jovaruroich,Inc. v. Goldwater,532 F.Supp. denied profits due to lack of promotion on 619 (S.DN.Y. 1982) where the court held the part of a new company which had taken that a publisher had a duty to edit a manu­ over their original publisher. Contemporary script and the publisher had to act in good Mission, Inc., v. Famous Music Corporation, faith. Since Senator Goldwater had written 557 F.2d 918 (1977). In determining the an outline for the book, which the publisher amount of damages to be assessed, the court had initially accepted, and he had consis­ quoted Williston on Contracts, stating that tently asked for editorial assistance and "if the plaintiff has given valuable consider­ received no response, the court determined ation for the promise of performance which Cafe Society Special Offer---15°/o OFF! ALL INVITES Hurry, Offer Ends 12/5/ New York Law School AND BROOKLYN, CARDOZO, COLUMBIA, FORDHAM AND NYU LAW Students

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At hand are the issues of whether cable has may not use your own converter, you may not Pirate Cable, Cont'd from page 1 grown to such a size and importance that it can use your own cable-ready television or your exert its influence like a government licensed remote control. This is problematic for two rea­ supposedly reputable agent, but found otherwise monopoly, and if there is a policy conflict be­ sons. First, it ignores normal viewers who have when informed of the $110,000 fine. tween a service that is both private and public had service disrupted without having a pirate and if the severity of such drastic measures chip installed and second, it has the potential to Out of 90,000 subscribers within their taken to make pirates pay is legal. ACQ, in this target closed-captioned viewers, whose special viewership, ACQ ferreted out 317 potential pirates case, has the means to monitor, target, and chip might be burned out. with the bullet technique. ACQ filed suit against all control the legal framework of its case. ACQ 317 in Queens County on April 25. Some viewers owns the boxes, so they own the evidence of the The distributor controls every facet of readily chose to settle, but it is not clear whether all pirate chip which was installed by their own the viewing process and in doing so, makes the of these people accused actually stole these special employees. ACQ is aware that most people consumerobliged to cable companies toa higher services. It is important to note that some people cannot afford to fight a company with deep degree than government regulated services like like Paula M., also from Flushing deny the exist­ pockets, so settlement is the only option for telephone services. With phones, once the line ence of owning a pirate chip and cannot prove most, regardless of guilt or innocence. And it can enters your home, you can add connections in their case because ACQ possesses the evidence to be had for a mere $500. Seeing that this would be any room, use your choice of phone, and choose clear her. Yet she, like many, settled for fear of the way out for most people, ACQ then instated from a number of long distance distribution further litigation from superior representation. an amnesty program for all potential violators in services in corn petition with one another. Cable May of this year. does not afford such an option, and this is At present, more than 40% of claims have been because of a lack of regulation in the cable settled through the amnesty program. The oth­ industry. ers claim innocence. Barry Rosenblum feels that II ACQ has Make no mistake, cable is big business sent out a message loud and clear" for pirates to now. By the end of this year, over two-thirds of stop illegal reception of signals, but according to the homes in the United States will have cable a 1985 study of cable pirates' habits in the journal television running into their homes. This end­ Criminolos;y, distributors needn't speak so loud Feig Cont'd less stream of pictures where HBO, Showtime, to lower their rates of theft. Gary Green, of the Sports Channel and the emerging Pay-Per-View University of Evansville claims that cable theft compete means profit and problems to the com­ canbecurtailleddrasticallybymakingtheviewer companies such as Grudge Records, Vanguard panies who provide these services. For the cable who steals pay services from the distributor Records and Sound of New York Record Co., industry, illegal reception of signals has been a awareoftheillegalnatureofcablepiracythrough writers such as David Karp and Barbara Taylor problem since its inception. A recent figure by public notice advertisements transmitted Bradford, and bands such as Newcleus and the National Cable Television Association cites through the cable service. The people who steal Crown Heights Affair. Approximately 20% of lossesof$300 million per year as a result of cable cable signals are not criminal types. As we have my practice is regular commercial work includ- piracy. One figure from Multichannel News seen, they might not even be aware that their ing estates. · claims that as large a portion of people who actions are illegal. This way ample notice to watch pay channels like HBO, Showtime, and pirates is given informing them of the risk and 2. WHAT WAS ONE OF YOUR MOST SATIS­ SportsChannel don't pay. So the cable compa­ consequences of their actions, and it works. In a FYING EXPERIENCES AS AN ENTERTAIN­ nies have taken matters into their own hands. cross-country survey, the notice technique has MENT LAWYER? ANDWHATWASONEOF cut down on illegal behavior once viewers un­ YOUR MOST DISMAL? The electronic bullet represents derstand what they are doing is illegal and is the frustration of cable distributors across taken very seriously by the cable disributors. One of my greatest experiences was the nation, looking for a way to stop cable when I introduced an English (BBC) television pirates. However, the problems raised by this What is needed is a balance between program entitled "It's a Square World" to the method of catching pirates is not the intent of the the pirates who are constantly pushing for new "GARY MOORE SHOW". This program was distributor, who rightfully wishes tochargecus­ techniques to provide pirate services and those the forerunner of ''MONTY PYTHON", and tomers for their services, but the method they using heavyhanded methods of safeguarding was developed by Michael Bentine whose part­ use to catch pirates in the act. against pirates and consumers who are caught ners were David Frost and Peter Sellers. Barry Rosenblum, President of ACQ, in the middle. Joan McCoy ended up settling for One of my darkest moments occurred sees it like this "It is our view the signal never $1500, the pirate chip servicemen have been at ICM when I was asked to endorse performers' leaves our property. It originates in a building fired, and ACQ can still fire other bullets at will. checks by top executives who wished to use the we own, is carried on lines we own, and g~s Manhattan Cable and other distibutors across proceeds for their own purposes. Such an activ­ into a box we own." In other words, if you want the nation are now contemplating "the bullet" ity obviously violates the Canons of Legal Eth­ TV like HBO or SportsChannel you can only go for their own systems. So, if you see your cable ics. I refused to comply, and shortly thereafter, to one place to get it, and if you do, you are screen go black, you'll know why. I was asked to resign. subject to the rules of the cable distributor. You Television in Politics: 3. WHAT ADVICE CAN YOU GIVE LAW Access, Form and Substance STUDENTS INTERESTED IN BREAKING INTO THE INDUSTRY? by Scot Mackoff I would tell them to keep an open mind. New York and California are not the ends How has television affected America? Some will say it has brought us closer together, instantly allowing people of the entertainment world. I've had students from different parts of the country to see and hear the who have gone on to work in entertainment FAST STARTS IN NEW events at the same time. Some say that it has added to our divisions in New Jersey, Florida, New Mexico, culture, allowing us to experience many of these same Colorado, Illinois and Texas. States other than COMMUNICATIONS TECHNOLOGIES: things, while others say it has turned us into a bunch of New York and California have a real need for couch potatoes, that lack initiative and creativity. At its STRATEGIES FOR best television is a great communicator, bringing historic attorneys that are knowledgeableaboutintellec­ ENTREPRENEURS, LENDERS & LAWYERS tual property and contracts unique to the enter­ events into your home as they happen, with a personal and tainment industry such as management agree­ timely touch that no other medium can equal. At its worst it is mere fluff. ments, agency contracts, union contracts, col­ One of the biggest effects on America that television has laboration agreements, option agreements, etc. had is in the way we select our leaders. Debatably, John F. Also, I would suggest that graduating students Kennedy became president because of how he looked on look in Standard and Poors to get names of television; and Lyndon Johnson remained president in companies involved with intellectual property. large part through the negative portrayal of his opponent There are many fascinating avenues to explore Session I, 9:00 a.m. in a television ad. Moreover, Johnson lost the presidency besides the law firm route such as book publish­ Lunch, 12:00 p.m. as America viewed its first T.V. war. In the same vein, Session II, 1:45 p.m. ing companies, ad agencies, independent pro­ Ronald Reagan was known as the television president and probably won election because he was a recognized name duction companies, networks and talent agen­ November 14, 1991 (a T.V. and movie star) rather than a great leader. cies. So television, while allowing more ideas to be communicated to more people in a shorter period of time, 4. HOW CAN ONE USE A LAW DEGREE TO also edits the quality of ideas and limits the number of PURSUE NON-LAWYERING CAREERS IN people who can express their ideas. Only so many people THE ENTERTAINMENT INDUSTRY? Commnnlcatlons Med.la Center get on the air. Even if I developed the best platform to Federal Communications Commlsslon solve America's problems, I still couldn't realistically National Telecommunications and expect to be elected to office without the money to express Law school trains you to think in a Information Admhrlstration Socratic manner. This skill provides an excellent those policies on television. Television has created politicians who must get their background for business, and can also be appli­ ideas across in a 30 second commercial, and to add to the cable to agenting, managing and producing. drama, the candidates are usually more interested in attacking their opponents than in expressing their own 5. WHAT DO YOU SEE AS THE FUTURE views for solving the nation's problems. "HOT" AREAS IN MEDIA LAW? Because in order to run for office today, you need money, then looks and last of all a good platform. It may Magnetic media, fiber optics and other be this skewed sense of priorities in the selection process of RECEPTION FOLLOWING CONFERENCE our leaders that has put America in such questionable advanced technology. I believe that the rapid times. Television has created the fluff without substance advent of new technology will create a real need politican, which ultimately affects the country in a for lawyers versed in media law. negative way. Could Franklin Roosevelt be elected once, much less four times, if he had to campaign on television? Media Law Project, Page 7 !_...-=

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supervise and operate the emergency room In quoting the New York Court of Appeals, However, the delegation of owed to the patient by the hospital has ex­ "onacontractbasis,andnotasanemployee".411 the Darling court recognized: the responsibility to inves­ panded. The emerging trend is to hold the The judgment of the trial court, which dis­ tigate and evaluate the pro­ hospital responsible where the hospital has missed the complaint on the ground that the The conception that the hos­ fessional competency of failed to monitor and review medical services doctor was an independent contractor, was pital does not undertake to applicants for clinical privi­ being provided within its wall. '° reversed by the Appellate Division, Third treat the patient, does not leges does not relieve the Department.49 undertake to act through its governing body of its duty Today, corporate negligence has been used to doctors and nurses, but un­ to appoint only qualified hold hospitals lia'ble for the malpractice of The Appellate Division stated that the test for dertakes instead simply to physicians and surgeons to physicians in the emergency room setting.71 finding the hospital negligent is one of control procure them to act upon its medical staff and peri­ In this regard, JCAH standards may be used in respect to the manner in which the doctor their own responsibility no odically monitor and re­ for imposing liability based on corporate neg­ operated the emergency room. Because the longer reflects the fact. viewtheircompetency. The ligence. JCAH standards provide that a hos­ doctor was controlled by the hospital as to the Present-day hospitals, as Credentials Committee (or pital emergency room is to be "classified ac­ means and manner of rendering emergency their manner of operation Committee of the Whole) cording to the level of the services provided" care, the court found that the doctor was not plain! y demonstrates, do far must investigate the quali­ ranging from a "comprehensive to a first-aid/ an independent contractor but rather an em­ more than furnish facilities fications of applicants. The referral level of care.n These standards estab­ ployee of the hospital.50 The court found for treatment. They regu­ fact is that this case demon­ lished specific requirements for each level of further factors that mandated this conclusion larly employ on a salary strates that a hospital care.73 as a matter oflaw. The doctor was guaranteed basis a large staff of physi­ should, at a minimal, re­ an annual salary, clerical help provided by the cians, nurses and interns, as quire completion of the ap­ Now, hospitals may be held liable for refusal hospital did the billing, and the doctor's fees well as administrative and plication and verify the ac­ to render treatment in their emergency rooms, were based on rates set forth in the contract.51 manual workers, and they curacy of the applicant's even though the patient is uninsured and charge patients for medical statements, especially in re­ unable to pay for the necessary treatment. In The Mduba court found that even if the doctor care and treatment, collect­ gard to his medical educa­ the past, hospitals could subside charity care were an independent contractor, the hospital ing for such services, if nec­ tion, training and experi­ by increasing charges for insured patients. would be responsible for his negligence. The essary, by legal action. Cer­ ence. Additionally, it The ad vent of cost containment, however, has hospital had held itself out to the public as an tainly, the person who avails should: made this cost-subsidy approach more diffi­ institution furnishing doctors, staff and facili­ himself of 'hospital facili­ cult and hospitals have become reluctant to ties for emergency treatment, was under a ties' expects that the hospi­ (1) Solicit information for the provide care to uninsured patients through duty to perform those services, and was there­ tal willattempttocurehim, applicant's peers, including those not refer­ their emergency rooms. The patient "dump­ fore found liable for the negligent perfor­ not that its nurses and other enced in his applications, who are knowl­ ing" i&, the transfer of uninsured patients mance of those services by the doctors and employees will act on their edgeable about his education, training, expe­ from private to public facilities, has report­ staff it hired and furnished.52 Accordingly, own responsibility.'1 rience, health, competency, and ethical char­ edly become a widespread phenomenon.74 the Mduba court held that a person who avails acter; him or herself of hospital facilities has a right Although the Darling court could have used In reaction to these concerns, federal law now to expect satisfactory treatment from any per­ the doctrine of apparent or ostensible agency (2) Determine if the applicant requires hospitals with emergency room which sonnel furnished by the hospital.53 to hold the hospital liable, it instead held that is currently licensed to practice in this state, receive Medicare reimbursement to provide the hospital had an independent duty, owed and if his licensure or registration has been or an "appropriate medical screening examina­ CORPORATE NEGLIGENCE directly to the patient, to prudently select, is currently being challenged; and tion" to "any individual" whether or not cov­ review, and monitor its medical staff.62 Since ered by Medicare and "Who comes to the Another relatively recent development in Darling was decided in 1965, New York has (3) Inquire whether the appli- emergency department" seeking treatment.75 the law of medical malpractice is the embraced the doctrine of corporate negli­ cant has been involved in adverse malpractice doctrine of corrorate n~li~ence. !z,ence.6. action and whether he has experienced a loss Under the corporate negligence concept, hos­ Established in the case of DarJin1 v. ot mechcal organization, membership or medi­ pitals maybe held liable forfailuretoproperly

by Patrick Benn Sometimes considered the unwanted performance. They came home with the Best Hartford, Ct. to participate in the Starr Law Few realize the tremendous amount of step-child of the eight floor, the Moot Court Brief Award and were Quarter-Finalists for Moot Court Competition. They returned vic­ time and effort which comes with entering an Association has been gaining recognition na­ the competition. torious, having advanced to the semifinal intermural competition. Roughly twenty tion wide. This fall, its members are actively On October 24, Steven Goldstein and round. hours per week are spent for the three to eight engaging in intermural moot court competi­ Howard Philips competed in the John Marshall Meanwhile,backhereinNewYorkCity, weeks necessary to write the briefs. Then, tions, pitting their oral advocacy and appel­ Moot Court Competition in Chicago, Illinois. Ivonne Prieto and Bill Thomas will compete in each team participates in seven to fifteen prac­ latebriefwritingskillsagainstopponentsfrom Their coach was Ivonne Prieto, who also spends the National Moot Court Competition tice rounds with alumni, professors and other some of the best law schools in the country. her non-coaching down time as Chairperson Regionals at Fordham Law School beginning Moot Court members serving as judges. As On October 18, Elizabeth Dowell and of the Moot Court Association. Their Wednesday, November 20th. They will be Howard Philips said, "You spend several Eric Jacobs competed in the University of San competition's issue concerned the contract guided by the Moot Court Association's resi­ weeks, entailing hundreds of hours, prepar­ Diego Moot Court Competition in Criminal and privacy implications resulting from a dent sherpa Erik Jacobs, who is feeling good ing for the competition, and then in fifteen Procedure. The Competition's issue was the pharmaceutical company's release of a and ready to go after returning with a golden minutes at the competition, your entire argu­ applicability of the Sixth Amendment toques­ doctor's HIV serostatus to fellow physicians tan from the San Diego Competition. Finally, ment is complete. However, there is no better tions of ineffective counsel during the plea following a computer-generated order for Debra Robb, James McClymonds, Gayle way of improving your legal writing and oral bargaining stage and the appropriate rem­ experimental HIV vaccine. Hyman and Peter Steckelman are earnestly advocacy skills." edies that are available. Guided by the inspi­ Most recently, Desiree Dhir, Carla preparing for the upcoming Jessup Interna­ rational coaching of Debra Robb, the Dowell­ Varriale and Coach Andy Shipper travelled to tional Moot Court Competition. Jacobs team turned in a rather impressive

Page 10 New York Law School Reporter A New Clinic at NVLS? The Portable Lawyer:

By Danielle Deillo Battered Women's Legal Services, suggested The Toshiba T2200 While substantive law classes pro­ thattheCenter, which was established in 1988 vide requisite background knowledge and and is part of Sanctuary For Families, merge develop analytical thinking, most law stu­ with NYLS and therefore provide an institu­ by Joseph Conway popping one in. dents yearn for "real life" experiences faced tion through which to run the proposed clinic. Toshiba has done it again. It's new Toshiba has equipped the T2200_ by lawyers. Under the supervision of a prac­ Following additional discussions, a T2200 notebook computer is state-of- the-art, with a 1O" diagonal LCD screen, the largest ticing lawyer and/or a faculty member, clini­ formal proposal will be drafted and submit­ portable computing that easily compares with they have ever used. The contrast and cal programs in a variety of fields offer oppor­ ted to the Faculty Skills Committee and to some of the best DOS machines on the market brightness are better than average, and the tunities to students for involvement with "real Professor Larry Grosberg, Director of the today. machine is capable of displaying up to 16 life" clients. Clinics also provide valuable le­ Lawyering Skills Center. If implemented, a At a street price of around $3800, this shades of grey. Overall,it is one of the gal services to clients in communities which domestic violence clinic would add to the putty-colored notebook comes standard with better screens on the markettoday, although continue to be underrepresented. curriculum at NYLS by providing more op­ 2MB RAM, and can be expanded to hold up to a the Compaq 386 notebook and the AT&T Currently, Legal Association for portunities for students to receive practical maximum 10MB with the addition of memory Safari by far can still claim to have the best Women (L.A.W.) members and other inter­ "hands-on" training and at the same time cards. A 2MB upgrade, which you will need to DOS-based screens around. , ested students are working to establish a Do­ provide much needed legal services to clients buy if you plan to run Windows, costs around Where the T2200 can't be beat is mestic Violence Clinic at NYLS. Although in the NYLS community. $450. A 4MB RAM upgrade lists at $799 (which discussions are still in the preliminary stages, you will need if you want to do multitasking with its battery. Toshiba uses a nickel hydride battery that gives the T2200 about the possibilities are optimistic. For further information, ideas or inquir­ (that is, run a word procesing program and 3-4 hours of uninterrupted use per char15e. October 24, Kristian Miccio, an adjunct ies, please contact Danielle Deillo or Liz Ames. spreadsheet simultaneously) and 8MB wil set professor at NYLS, and Susan Herman of you back about $1,770. You can install these That's not bad compared to the 2-3 hours Victim Services Agency, spoke to a group of cards yourself by sliding open a side panel and that you get from standard ni-cad batteries students about domestic violence and the sur­ (the type used in most other major note­ rounding legal issues at "Victims Rights", an book brands today). What's even better, is event sponsored by L.A.W. The audience that you can charge the batteries while you members also expressed strong interest in are using the machine, which you cannot establishing the clinic. do with most Ni-Cad based systems. h women whoattendedAntioch,aclini­ Also, the nickel hydride battery cally oriented law school, strongly encour­ doesn't suffer from the "memory effect" aged establishing a domestic violence clinic that plagues Ni-Cad batteries. With the and spoke of the need for and advantages to memory effect, a notebook user cannot both clients and law students. Ms. Miccio, rec~arge a Ni-Cad battery before it wears who is also the Director of the Center for down completely, or else the charge-life of the battery shortens. The T2200 also comes standard with power management and auto resume ,,,,, capabilities. Auto resume allows the note­ book user to close the lid, walk away and come back several days later, and jump L.A.W. right back in at the point where she left off. What it does in the meantime is slow the central processor down to almost the point Symposium of stopping. This cuts down on the power being drawn from the battery, and dra­ matically extends its life. on The T2200, at 5.5 pounds, is also the lightest notebook current! yon the mar­ Domestic ket carrying as tandard internal hard drive. ' . Photos by Darlene Miloski In comparison both the Compaq and the AT&Tweighinatover7pounds. This may Violence not seem like much of a difference on pa­ per, but after an entire day of carrying the Compaq around, you will appreciate the T2200. Toshiba has accomplished this re­ duction in weight without compromising by Alesia Albanese any of the notebook's features. Rather, the company has developed a new carbon­ filament casing which is substantially lighter On October 24, 1991 The Legal Asso­ than the standard plastic housing used. ciation of Women hosted a timely and intrigu­ The keyboard remains at the usual almost­ ing symposium addressing domestic violence standard size, with keys that are springy and the rights of its victims. Two speakers, and responsive (most keyboards have a Susan Herman and Professor Kristian Miccio short return travel length that makes them addressed the audience and then led a ques­ uncomfortable to use over extended peri­ tion and answer period. This symposium laid ods of time. the ground work for a proposed Battered As The Reporter goes to press the Women's Project to be coordinated by L.A. W. optional 2400 baud in terna I modem should Susan Herman, Attorney for Social be available for the T2200. It costs about Services, is a director of the Domestic Violence $300, and must be installed by an autho­ Division of the Victim Services Agency. Ms. rized dealer. Toshiba also plans a docking Herman began the discussion with some eye­ station for the T2200, a machine that will opening statistics. According to Ms. Herman: connect the T2200 to your home computer Crimes against women are the leading cause or any other peripherals (such as a CD­ of injury and death to women in our country; Top Photograph, Students listen to the presentation ROM drive or a scanner). Annually, four thousand women are beaten Bottom Photograph, Susan Herman and Professor Kristian Miccio Overall, the T2200 ranks as one of todeathand six million are physically abused. the best DOS-based notebooks around. If Fifty percentofall women in the United States a Battered Women's Clinic, ideas and interest can you're looking for the best screen on the will be victims of domestic violence within until 1962 that violence in the home was con­ market, the hands-down choice is still the their lifetime. sidered a crime worthy of criminal prosecu­ be presented to the office of The Legal Associa­ tion of Women. Planning and preparation are Mackintosh PowerBook. But if it's battery Professor Miccio is an adjunct profes­ tion in New York State. She stated that the life and unbeatably low weight that you are sor at New York Law and is the founding Common Law rule was that a man could not underway in order that this essential and urgent project will become a reality. looking for in a notebook computer, the director and Attorney for the Center for Bat­ beat his wife with a stick that was thicker than T2200 may be the just the machine for you. tered Women in New York. Professor Miccio his thumb. This was known as "subtle addressed several issues including the Right chastizing." On the accusation that Anita Hill to Privacy (which is granted, she stated, to a fantasized her alleged sexual harrassment, group to which women have historically been Professor Miccio emphatically said, excluded), an historical lack of identity suf­ "You don't fantasize having anyone fered by women who have been "subsumed push themselves into your body any more by fathers and husbands," and the legal than you fantasize having them push them­ struggles of rape victims. Professor Miccio selves into your home." informed an attentive audience that it was not For those interested in taking part in I SOO lrolllway JO Parlr. Plaza, Salt< 931 N•w Yorlr., N.Y. 100!6 lloolon, 11A 02 I I 6 (212) "19-0200 (800) •72-8899 (6 I") 69S-99SS (800) 1166-7277 (201) 62H363 (203) 72•·3910 FAX, (617) 69S-9J86 FAX, (212) "19-IHI New York Law School Reporter Page 11 ew aw Letters to the Editors School Re orter

Other Voices: from the Cardozo Forum

Companies which promote their busi- purchase advertising space in the Forum, and ness by distributing advertising materials explained that he succeeds in capturing a suf­ within the Cardozo building rob from the stu- ficiently large market by distributing fliers at dentbody,degradetheappearanceoftheschool Cardozo. The editor suggested that an adver­ and violate existing school policy. Unfortu- tisement in the Forum would be a meaningful nately,manyoutsidecompaniesroutinelyflout investment toward earning good will, since this policy, and indeed depend upon such free students would be happy to do business with advertising to provide them with much of their a company which supports one of their student profits. Greater enforcement of the policy organizations. The editor was told that he banning outside advertising would benefit the "obviously did not have what it takes to make student body as a whole, and we urge that such it in America", because he was "far too pink". enforcement be pursued with diligence. We do not oppose the commercial ex­ Outside advertisers who advertise for ploitation of the Cardozo community. Those free within the Cardozo building routinely do who seek to sell their goods and services to us not advertise in the school newspaper, which typically provide beneficial products, such as you are now reading, or with other student first year, bar and exam review courses, re­ organizations. The school newspaper derives sume and word processing services and social its operating revenue from only two sources: events. Even as these vendors profit, those ~ outside advertising and Student Bar Associa­ who pay for their products typically receive tion funds. The SBA funds come from the their money's worth (no problems arise even if student activity fees which every student pays they do not, for those are the rules of our along with his tuition. Every dollar in outside informed consumer capitalist market system). advertising revenue which the Forum earns­ What we oppose is the current practice of decreases the amount of money which the double dipping. Free advertising might be ­ other things. By bypassing the student news­ from the perspective of the student who is .0 0 paper in advertising to the Cardozo market, twice relieved of her money. 0 outsideadvertisersderiveprofitforthemselves .c Q. while simultaneously robbing students of their It should be noted that this editorial is not student activity funds. Essentially, the outside a two-faced attempt by the Forum to increase Anita Hill, professor of law at the University of Oklahoma, speaks advertisers are writing themselves subsidies of its advertising revenues by assuring itself a SBA money. This practice should no longer be monopolist's hold on access to the student tolerated. marl.set. Rather, it is an attempt to prevent the current lechery. In our view, alls tudent groups These officious outside advertisers also should remain free to sell advertising space, or degrade the appearance of the Cardozo build­ its equivalent, to outsiders. Examples of this Thank you, Anita Hill! ing by the widespread distribution of their are the student directory which is published by abundant fliers, glossy posters and booklets. the SBA but sponsored by the proprietors of a [Third year NYLS student Julie Petrow sent I think accurately portrayed the events that Universities stand as places for the free ex­ large bar review course, and the weekly parties the following letter to Professor Anita Hill. took place ten years ago. Unfortunately, it is change of ideas, not as trading floors covered run under the auspices of the SBA which are Ms. Petrow also sent this copy to the Reporter far easier to disbelieve one woman's story with commercial scrap paper. By enforcing sponsored by a local tavern. The Forum does with the request that it be published in the than to admit a pervasive problem exists more rigorously the policy which forbids out­ not mind competing with these other student Reporter] and must be dealt with. That a significant side advertisers from distributing their materi­ groups, for they all ultimately represent the part of the American population chose to als in the Cardozo building, these advertisers same interests. We do mind competing with Professor Anita Hill disbelieve you was not the result of your will be forced to channel their advertising ef­ wily and self-serving outsiders. University of Oklahoma College of Law statement and presentation. Rather, forts into more efficient and environmentally 300 West Timberdell Road American's disbelief was the product of the sound means which will not create the kind of We call upon the Dean's office to prepare Norman, Oklahoma 73019 Republican party's onslaught on your char­ mess which Cardozo hosts now. a form letter which will be sent to all commer­ acter and the Democrat's idle response. The cial advertisers whose advertising materials Dear Professor Hill: Democrats satquietlyas Senator Arlen Spec­ TheexperienceofoneForumeditordem­ are found within Cardozo, and which will ter artfully picked away at inconsequential onstrates the wide scope of the outside adver­ explain the policy against outside advertising. I am a third-year law student at New inconsistencies and then labeled you a per­ tising problem. The editor contracted the p,ro­ Further, we call upon all students, staff and York Law School. I am writing to thank_you jurer. Senator Orrin Hatch made the most prietor of a law school exam writing course facultyofCardozotopickupand throwout all for your courage and sense of duty in that, ridiculous and theatrical assertions that I who purports to have tutored 14 % of Cardozo' s copies of commercial advertising material and once approached by the F.B.I., you decided to found totally debasing of the whole nomi­ lL students last year, and who charges each to report the offending advertiser to the dean's tell the truth about the sexual harassment that nation process. student $75 for his course. He refused to office. In this way, the interests of the Cardozo you endured while working under Clarence community will be well served. Thomas. The fact that your were a victim of the political winds at force is infuriating to I believe your coming forward has be­ many of your supporters. It is frightening come a catalyst for Americans to finally be­ to envision what Clarence Thomas' lack of come aware of sexual harassment in the work vision will bring to the Supreme Court. place. Awareness is the first step towards Your testimony, however, will ultimately The experience of the Cardozo editor is similiar to experiences of several taking action. Already I have heard stories of serve to the advantage of many. Thank you Reporter staff members. Recently, mailbox folders were stuffed to overflowing corporate executives talking to their in-house for opening American's eyes to the problem withadsfromalargeout-of-townlawbookstoreanda publisherofstudy guides. The counsel about how to approach the problem of sexual harassment. Your coming for­ Reporter staff contacted the large publisher of law student study aids and was of sexual harassment. ward was one of the most inspiring lessons told," We don't need to advertise, we just send someone down to stuff all the of my law school career. mailboxes." When the Reporter pointed out that a warning against stuffing Your story and corroborating witnesses mailboxes was posted, he was told, "We'll just keep doing it until they stop us". Sincerely, The problem has overflowed the mail folders and overwhelmed the entire Julie .f>etrow student lounge.The student lounge has become unbearably crowded. During the week of November 10-16, on at least two days.A!!_of the tables in the student were taken by vendors of high priced merchandise. On Thursday, November 14, Citibank's credit card services had taken a table, joining the previously observed ranks of two school ring companies, four bar review companies, Lexis, and Westlaw. Both Student Services and Career Services may sometimes be found at a table in lounge, and the Registrar recently utilized the lounge for next semester's advance registration. Rarely, a student may find the free space to spread out books and study.

Page 12

L I SttJdent Bar Association

Minutes, October 30 At{D NiR l>~LLY H~t!MliNG ff~ Liz began the meeting by discussing the cover transportation, room and board.A mem­ , far, YE5r , Fer Halloween party which will be held on Octo­ berof the organization explained that this was ~ UTlf.t;~r,,r,! l/lf1.r/ ber 31st from 5:30 till 10:30. Liz suggested that a reasonable amount and that this event is the we plan for a food drive and or a clothing biggest event the national organization spon­ drive to tie in with our next SBA party which sors. He also noted that attendance was not falls around holiday season. Liz also asked the mandatory, butwasstronglyreccommended. Senators to think about some sort of substan­ Senators wanted to know if the organization tial event the SBA could run next semester. had done anything to raise the money itself and it was reported that alumni were ap­ Old Business: Joan Sutton quickly ran proached and that the people who do attend through the proposed legislation on an hono­ will kick in the difference. The Budget rarium policy. The Senators were instructed Commision's policy is to give up to $30.00 to read through the proposed policy so that towards initiation dues to a national organiza­ the Senate could take formal action at the next tion chapter. Attendance at a national organi­ meeting. The next meeting is scheduled for zation must be mandatory before the commis­ November 18th at 5:00 p.m. sion considers funding the trip in which case there is no set limit on the amount of money to 'ill New Business: Attorney General Doug be allocateed. The organization's spokesper­ Stern discussed Frolic & Detour's new revised son mentioned that the SBA funded a trip to constitution. He gave the constituion a favor­ Harvard last year; however Liz did not recall able review as written and found no textual this and said she would check it. Senators Purely Personal Prejudices problems. He did note that their new constitu­ wanted to know if we had done this in the past tion is identical to The Reporter's existing and for how much. Liz did not believe that the constitution which was ratified 10 years ago. SBA had funded such trips in the past. One After wishing them luck and success he did senator stated that AALSA's requests are al­ issue them a warning. He stated that action ways for alot of money. Dineen stated that would be taken against them in the event that AALSA had received $165.00 with an addi­ By Jack T. Frohlich they instituted their original election process, tional $130.00 bracketed. Glenn noted that as Evening Division Vice President which the senate had vetoed. Doug also stated of 5 years ago, less than 1 % of the judiciary that he felt that the competition would be a were Asians and therefore any leadership we Did all of you notice that Dean Farago and Simpson, but I expected better ofSer,a­ positive move and that he hoped it would as an organization could foster in the Asian wash ung in effigy at the Halloween party? tor Spector who managed to be so rational strengthen the comraderie between the stu­ community would be good. He also noted I guess some people were not happy with during the Bork hearings. I guess he had to dents. It was noted that no one was present that our school community is located very the schedule for the Spring term. And its no redeem himself with the rabid right. With from Frolic$ Detour. A motion was made and close to a large Asian community. A motion wonder. In the eight o'clock time slot there any luck he will receive the same fate as seconded to approve the constitution. Discus­ was made and seconded to grant the money in was a glaring disparity between the Mon­ Dick Thornburgh. sion was had regarding the fact that no men­ the event that the SBA had funded a similar day - Wednesday offerings and the Tues­ tion was made of the election process which trip to Harvard last year. A senator moved to day - Thursday offerings. For those who Here are a few thoughts on a local was the original problem. Liz speaking as a table the issue until we know how much had already taken Fed Tax and Corpora­ matter: fellow student and not as the President of SBA money we have left. Several senators requested ti9rs, Monday - Wednesday offered only noted that The Reporter's constitution was that the motion be clarified. The senator again Environmental Law. A good course but it Even though it is alleged that the ratified more than 10 years ago, that no min­ stated his motion which was to give the money should not be forced on people. How about Labor Day weekend subway crash oc­ utes exist to tell us whatthe issues were atthat now, if in fact the SBA had given the money a little more balance next time? curred because the train operator was time, and that The reporter's elections are run for the Harvard trip last year because that drunk, the New York Transit Authority is democratically in that anyone who contrib­ action would act as precedent. A vote was The SBA Evening Division also re­ scheduled to begin random testing for utes has a shot at being on the editorial board. taken on the motion and division was called. ceived complaints about the clinical pro­ drugs, as well as alcohol, starting Novem­ Therefore, she felt the Senate should assume A second vote was taken with 8 senators in gram. It seems that at the time of registra­ ber 12, 1991. that Frolic & Detour will givP a !

by a New York Law School Student The latter applies when no identification is thumb and forefinger, and I replied with a unopened package containing a disposable ever required. Law students should not need thumbs-up and a smile. A lot of conversation, syringe and needle. I nodded, thinking it was When "Magic" Johnson announced to be warned that a promise to maintain secrecy especially since we never said a word. a bit like approving a wine selection. The that he had tested positive for HIV, the media is not always kept. I was advised to limit my I was finally summoned into a technician (called a phlebotomist) then took a proclaimed that heterosexuals would finally choices to anonymous clinics. The drawback, counseling room. A young woman named blood sample, and asked me if I would like a concede the truth: Anyone Can Cat It. With it turned out, was that the only such clinics in Laurie asked me about a dozen questions, syphilis test as well? Was she nuts? No, I said, luck and wisdom, that concession will lead to New York are booked two months into the mostly relating to how and why I had decided just HIV today, thank you. She then disposed safer sex, less promiscuity and more future. to be tested. I noticed a box on her record of theneedleina bucket with a slotted lid,and compassion. Just maybe, those results will Ultimately, I made an appointment sheet, under the section labeled "Risk Factors", the syringe in a separate container. Then it was reduce the number of people who acquire the attheNewYorkDepartmentofHealth,Bureau said "Partner's Partner''. She checked that box time to leave, and I remember thinking that at virus in the future. of Laboratories, bycalling(212) 34{}-4436. They on the sheet, describing me. I would have been least I now knew the last job I would ever want Mr. Johnson's brave revelation asked me to make up a three digit number happier, if she had had towritethatin,instead to take. should help both those who do not have HIV over the phone, to be used when I appeared to of checking a mass-produced entry. At this point, I actually felt pretty (to stay that way), and those who do (by give a blood sample. They gave me a time and Laurie gave me a short lecture on good. No further action was needed on my enlightening the beknighted). In a narrow date, more information about HIV and AIDS risk-avoidance, and more data on AIDS and part, except to come back for the result. In a zone between those two classes, however, are (whichconflicted,mostly, with what Ileamed its effects (yes, this was inconsistent, too). She way, I thought, thehardestpartisover, because a few frightened souls who don't know if they from the first call), and I waited. It was a pretty then produced a dental dam (a small green the rest is beyond my control. The three weeks have the virus in their bodies, but have reason lonely period. sheet of soft rubber), and explained its use. were not as hard to endure as had been the two to think they do. For each of them, a terrible When testing day came, I appeared She told me where I could buy them, and months before the test. decision, perhaps the first of many, presses on time. I sat in a hallway for about half an offered to give me one free. I sat there and On the date set, I reappeared. Laurie itself to be made: Should I get tested? The hour, and then spent another half hour in a stared at it for about fifteen seconds, thinking wasn't there that day, and it seemed for a logical answer is crystal clear, but logic comes waiting room with two other people. We all I would never use such a thing. She had been moment that I would be asked to come back hard to those who think they may have AIDS. had to read and sign (with our made-up very nice to me, soi took it out of courtesy. I the following week. Without a doubt, I would The simple fact is, testing is scary. With all the numbers) a sheet detailing the known ways to still have it, unused. have spontaneously combusted, if so asked. information flowing about the disease, not catch HIV, and ways to avoid it. I don't Laurie told me to forget my three­ Instead, a different counselor, Joseph, nvited much gets written about how to get tested, or remember a word I read. I do remember digit number and assigned me a new six-digit me into the room reserved for the result what it is like. The testing process remains thinking that the others in the waiting room one. She gave me a card with my new number revelation. He closed the door, and then unknown, and people often fear what they looked about to explode in adrenalized wisps. and her name on it. The result would take explained that my file had initially been don't know. My fear stopped me from getting Probably I looked like that, too. three weeks to get (I had been told two weeks misplaced, but now had been found. tested for over a year, even though I thought One fellow did not have to read the over the phone). If anxiety overwhelmed me Misplaced, I thought? Obviously that must I might have the disease. Here is how it went: sheet; he was there for a result. He was called during that time, she said, I could call her. have been because it was held out for some In 1990, for the first time, I learned into a private room, and the door closed. Five That actually made me feel good. Then the special handling from the main bulk. Uh, oh. that HIV tests can report false negatives for as minutes later, he emerged. I gave him a look time came to provide a blood sample. Joseph then produced a folder, which he half long as a year after exposure. Suddenly, an old that asked, "well?" He made a cicle with his A technician showed me an opened, so I could not see the papers inside. girlfriend' sown negative test looked uncertain. "I just want to check a few things, to Further, I had some mild health problems that be sure this is the right folder", he told me. He were consistent with evidence of HIV­ might as well have told me what a hard job he exposure. It occurred to me that I might have had, or how unfair life is. He asked me my age the disease. I decided to get tested. Then I got and zip code (I didn't really remember giving scared, and decided I didn' t want to know the UrJ

For more information contact:

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Page 14 New York Law School Reporter November18,1991 tion and "Star Trek" in particular. Science fiction is a popular genre among libertar­ Brennan's Justice: ians and many Sci-fi books and movies helped lay the foundation for my accep­ tance of libertarian philosophy. In "Star Trek," Gene Roddenberry presented a prac­ tical application of at least one significant by Joseph D. Brennan libertarian principle: non-intervention. last year, who travelled to school from Con­ many votes for so and so. .. Well, I thought One libertarian's commentary on Through the Prime Directive, the Federa­ necticut everyday. When students have to ar­ I would share with you some of the delega­ issues facing individuals at NYLS and in tion (the government in "Star Trek") is rive at school for 9 AM classes, they are forced tion announcements made at the 91 Liber­ the world at large. prohibited from interfering in the internal to add their numbers to the already tarian Convention, which I think are a politics and development of any society overburdened New York City transportation good example of Libertarian humor. THE PERILS OF REGIS­ which is encountered. Libertarians hope system, competing with floods of workers who "Michigan, whose senior senator, that, one day, the United States govern­ TRATION, PLACED AND have to beat their jobs by 9 AM. After 9 AM, the Don Riegle, was a major player in the S & ment will adopt a similar policy. congestion in the New York City transportation L ripoff. .. we look forward to putting a MISPLACED HUMOR, AND I salute Gene Roddenberry, in rec­ system begins to fall off sharp! y, making it a lot Libertarian in the White House and Mr. THE DEATH OF A LEGEND ognition of his substantial contributions to easier to get to school for a 9:30 AM class. This Riegle in jail..." our culture and I wish him well on his semester, I see a lot more lateness in 9 AM "North Carolina, the first state to journey beyond the final frontier. Spring Registration classes than I saw in 9:30 AM classes last semes­ declare for freedom, but we wonder where Once again, the students of NYLS ter. Not only are 9 AM classes unnecessarily it went..." Memorable Quotes are being subjected to registration, and with hard on students, they are socially irrespon­ "The pretty great state of Utah; "The socialists believe in two things it comes the inevitable memorandum from sible. There is no need for the NYLS Adminis­ well, it's okay if you like that sort of place, which are absolutely different and per­ John Farago, Associate Dean for Academic tration to add to the congestion of the morning I guess. The beehive state, symbol of col­ Affairs. Some of you may wonder what I haps even contradictory: freedom and or­ rush hour. lectivism, home of Republicans for higher ganization." --Elie Halevy. could find to complain about in a Dean Administration sources say that some taxes and bigger government, home of "Is it just or reasonable, that most Farago registration memo? To begin with, administrators are less than sympathetic with Democrats for censorship and drug test­ voices against the main end of government I do not consider myself a cog, esteemed or the plight of students suffering under the bur­ ing, the state with the nation's lowest per should enslave the less number that would otherwise, in anyone's wheel. Certainly, den of 9 AM classes. I wonder if that's because ca pita consumption ofakohol and tobacco, be free? More just it is, doubtless, ifit come Dean Farago displays a high level of cre­ they live in Manhattan? Perhaps, if those ad­ and the highest per capita consumption of to force, that a lessnumbercompel a greater ativity and, perhaps, within his memos can ministrators had to experience the 2 hour com­ ice cream and Jello ... " to retain, which can be no wrong to them, be found the musings of a frustrated artist. mute from Nassau County which I have every "The delegates of the state of Wash­ their liberty, than that a greater number, I even admit that some of what he says is morning, their sympathies might be height­ ington - the other Washington - the GOOD quite funny, but some of the humor may be for the pleasure of their baseness, compel ened. Washington, where we all wish we'd been a less most injuriously to be their fellow misplaced and unappreciated when found Some students have complained that named Jefferson ... " slaves. They who seek nothing but their in registration materials. the Spring course offerings for night students "The state of Alabama, where we When facing the task of success­ own just liberty, have always the right to duplicate too much of this semester's offerings. have every conceivable tax, and where our win it, whenever they have the power, be fully completing registration, a student Other registration complaints which have new Republican governor, the first since the voices never so numerous that oppose needs information, easily ascertained and reached my ears are basically logistical. Stu­ the War of Northern Aggression, just out­ it." --John Milton. understood. At times, it can be frustrating dents have complained of a shortage of regis­ did all previous Democrats at raising sifting through whimsical ramblings on tration materials and a congested Student taxes ... " If you have any questions you "food chains," while trying to find a needed Lounge seems a poor substitute for the Froessel "Connecticut, the home of Lowell would like answered from a libertarian bitofinformation. All in all, this semester's Room. Based on my experiences at two under­ Weickerandnumerousothersocialistpara­ point of view, or any comments you would Faragomemoseemedanimprovementover graduate and two graduate institutions, NYLS sites ... " last semester's. I found myself sifting like to make, correspondence is welcomed does a better job than many in handling regis­ through a lot less superfluity than I did last and should be directed to: tration. However, there's always room for A Tribute To Gene Roddenberry spring. Hopefully this is a trend of im­ BRENNAN'S JUSTICE improvement. On October 24, 1991, entertainment provement which shall continue. legend Gene Roddenberry, creator of "Star cf o The Reporter New York Law School Rumor has it that Dean Farago also Libertarians Have A Sense Of Humor Trek," died. Although no time is a good had a hand in the decision to begin classes 57 Worth Street Too. time to die, his death at this time is particu­ at 9 AM instead of 9:30 AM. Having expe­ Anyone who has ever seen the nomi­ larly saddening because this year is the New York, NY 10013 rienced th1~ ror the rm,t time Jum•s tlus nating process of one of our nation's political 25th Anniversary of "Star Trek" and the Correspondence may also be Jett in semester, I think it sucks. NYLS is ,, com­ conventions is familiar with the practice of the next Star Trek movie, "Star Trek VI: The person at the Reporter office. Any re­ muter school, with many students travel­ various state delegations announcing their first Undiscovered Country," is due to be re­ sp_onses that I may have will appear in ing daily from Long Island, Westchester, ballot vote results with a little style. For ex­ leased in December. future editions of this column. and New Jersey. I even knew one student, ample: New York, the Empire State, casts so I have always enjoyed science fie- '

November's Events

Nov 05 - Sports and Entertainment Law Society will sponsor a panel on professional sports figures Nov 06- Black Law Student Society will sponsor a presentation on the bar exam in the student lounge at 5pm. - Criminal Law Society will sponsor a debate on the death penalty in the faculty dining room at 6pm. The speakers will include Henry Schwartzchild of the A.C.L.U. and Ernst Van Den Haag, formerly a professor at Fordham University School of Law. Nov 12 - Office of Career Services orientation for first year day students, Room A-400 beginning at 6pm. Nov 14 - Office of Career Services orientation for first year evening students, Room A-400 beginning at 5:30pm. Nov 18- The Trial Lawyers Association will sponsor a workshop on domestic violence and litigation at 5pm in the Faculty Dining Room. Speakers will include Michael Dowd, chair of the Governor's Task Force on Domestic Violence; Sara Bennett, Legal Aid Society expert on battered women; Elizabeth Lowey, head of the Manhattan District Attorney's Domestic Violence Division. Nov 19- This year's Otto Walter Fellow, Ambassador Thomas Pickering, the United States Permanent Representa- tive to the United Nations, will speak on "U.S. at the U.N.: Challenges for the 90's at 4pm in the Moot Court Room. Nov 20- National Lawyers Guild will host "Legal Observer Mass Defense Session" in Faculty Dining Room at 6pm Nov 21- SBA Party beginning at 5:30pm Nov 26 - Legal Association of Women will sponsor a discussion concerning issues ofprostitution. The speaker will be Barbara Downs from Prostitution anonymous.

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