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• ANKLEBONE CONNECTED TO THE WRENCHED KNEE BONE ANKLE up front

To whom it may concern,

Gone is the summer of '93 and along Also in this issue, some real news JURISnu DUQU(SNE LAW SCHOOL NEWS MAGAZINE with it the many plans and projects that you can use, including information on were never fulfilled in the summer of '92. computer bulletin boards, some articles Also gone are the summer's swimwear on recent legislation including Pennsylva­ (thank God), the cliche-sloganed cola­ nia's Stalker Law and the Family Leave Act, wars, and our much embraced beer com­ and a couple of articles dealing with the ' departments mercials featuring attorneys as rodeo prey recent changes in the federal rules of (less filling, poor taste). For students, evidence. summer's anxiety has turned into fall's In our next issue, Juris will be spon­ Up Front realities which will be followed by winter's soring a Duquesne Law School shirt and 2 sleepless nights. sweatshirt sale to the alumni and students. Congratulations to last year's Juris (Cheap plug). On Campus staff on earning second place in the Law So pop the top off your favorite beer 4 School Division of the ABA magazine con­ or uncork your most palatable chardon­ test (editors' pat on the back). This year's ney and enjoy our first issue of the 27th Alumni News staff (the fall of malcontents) can only Volume of Juris. After all, that's the way 6 hope to continue the precedence of qual­ it's meant to be read. ity and dedication. In keeping with tradi­ Recent Decisions tion, we hope you will enjoy many of the 26 same types of articles and stories we've brought to you over the years. At the Sidebar In this issue you will meet the new 25, 34 administration of the Law school. Associ­ °'';A~ ate Dean Sekula and Assistant Dean Rago, Editor-in-Chief under the guidance of Dean Cafardi, as­ sumed office on July 1 of this year. Along with our old favorites (alum­ P.S. Here's to next summer's most popu­ on our cover ni, recent decisions) we have the com­ lar television commercial. The one that mencement address by Judge Lewis features your favorite New York ad agen­ The changing game of organ acquisition wherein three old friends give some cy executive facing an IRS audit with a and dispersement policies spurred by the advice to the '93 graduates. Students also voice-over proclaiming: "His deodorant recent debate over Pennsylvania Governor get some interesting advice from Jayme has to be strong since he can't find a tax Casey's heart and liver transplants is Deibler on how to "rest their brains." attorney to represent him." explored on page 18. Thanks to Don Frederickson for donating a spare rib. (Photo by MARTIN EGNA.)

Juris is a student publication of the Duquesne University School of Law. Views and opinions expressed herein are not necessarily those of Juris or of Duquesne University. Juris, 900 Locust St., Pittsburgh, Pennsylvania 15282 Tel. (412) 396-6305. Copyright 1993 Duquesne University.

Juris is printed on recycled paper.

fl Juris contents

Portrait of a Daydream, by Judge Timothy K. Lewis 7

MEET THE DEANS In Step With Dean Cafardi, by Michael Stephan 10

In Sync with Dean Sekula, by Jim Tone 12

In Touch with Dean Rago, by Christy Fedigan 13

For Better or For Worse, by Jacqueline 0. Brooks 14

Caution: Brain at Rest, by Jayme Deibler 16

A Most Excellent Opinion 16

Welcome to the Family Uncle Sam, by Glenn E. Camus 17 If I Need A Liver, Should I Run for Office? by Lisa DiCerbo 18

Judges Don Lab Coats, by Ken McKay 21

The Cost of Signing the Dotted Line, by J. W. Bonie 22 Stalkers in the Night, by Terri L. Taylor 30 Tomorrow's Town Square, by Warren Haines 32

Editor-in-Chief Amy F. Haduch

Production Editor Managing Editor Martin R. Egna Joanne E. Cohen

Senior Editor Assistant Production Assistant Managing Sally R. Miller Editor Editor D'Angela Steed Michele E. McNamara

Articles Editors Staff Editors Writers Layout Editor Business Staff Glenn E. Camus Bart Bodkin Jacqueline 0 . Brooks Stacy Tees Patricia Barnett M .J. Charbonnier Renee Eisenberg Jayme Deibler Aaron Deluca Michael Zimecki Joseph Koscinski Lisa Dicerbo Mary Lou Hizney Graphics Editor Paul Oven Cristy Fedigan Patrick Lawlor Lisa Graniero Elizabeth Reiter Donald Fredrickson Recent Decisions Mark Skolnicki Warren Haines Susan Gaetano Faith Slampak Steve McClintock Photography Editor Steve Wirth Cindy L. Smith Ken McKay Dale Provins Jennifer Swistak James M. Rarick Jim Tone Mike Stephan Copy Editors Terri L. Taylor Artist Margo Carter Jerry Yanity Aaron Lyons William Gagliardino Student Organizations Alice Rudolph Front Line Editors Photographers Coordinator Renee Solomon Beverly Bertin Michael Fiorentino Jan Daschbach Colleen Finnegan Alan Hader Susan Fix Laura Schaffron Beat Editors Tom Isenberg Contributors Jamie Aul Jeff Kubay J.W. Bonie Holly Brent Monique Moye Judge Timothy K. Lewis Production Assistant Faculty Advisors Carol M . Gusherowski Kim Pharr C. J. Rapp Joe Toczydlowski Dean Raymond F. Sekula Professor Patrick J. Basia!

Fall • 1993 El Orientation Deemed Success

to success in law school. New students their time (and sometimes their outlines were advised to be tenacious, prepared, as well!) to assist the incoming students and to adhere to the highest standards of with any questions, to assuage any appre­ integrity. President Murray also advised hensions, and to provide support through­ that prayer helps as well. The evening was out the crucial first year of law school. most enjoyable for all. Immediately following the cookout, The second segment of orientation upper-class SBA members were available z was held Saturday, Sept. 11. The new for a brief, informal question and answer g students attended lectures by Professor session. The incoming students welcomed ~ Mark D. Yochum and Professor Kellen the chance to ask questions on topics un­ ~ McClendon, which dealt with the fun­ related to the formal study of law, such as ~ damentals of the law school experience the availability of University exercise facil­ ~ and gave a brief overview of what to ex­ ities and the posting of grades. ~ pect in class. Kudos to the orientation committee, ii: After the lectures, the incoming stu- namely, Professor Mcclendon, Carol The Atar-Krupskis enjoy a beautiful afternoon at dents headed to a cookout at Mellon Hall Gusherowski and Renee Eisenberg, for a the orientation cookout. Counterclockwise from where they were greeted by their "men- right: Iris, 2E, Carol, and their son Yoni. job well done! tors." Serving as mentors were upper-class The orientation program sponsored students who had agreed to volunteer JAMIE AUL by Duquesne University in conjunction with the Student Bar Association was held Tuesday, Sept. 7, and Satu rday, Sept. 11. Incoming students, returning students and faculty members all spoke highly of the event. The orientation events included a sit-down dinner in the Duquesne Student Union on Tuesday, Sept. 7. Prior to the dinner, the incoming students were given the opportunity to socialize with one another, as well as with student organiza­ tion leaders and Law School faculty. Presi­ dent John Murray addressed the incoming students and advised them of the secrets Mentor Colleen Finnegan, 3E, and Dave Grecco, 1E, get acquainted during orientation cookout. SBA Sponsors "Meet the Deans" ABA .Accredits The SBA recently sponsored two dealing with various issues. Deans' assemblies where students were Dean Nicholas Cafardi discussed a Duquesne given the opportunity to ask the new ad­ number of issues affecting law students. The Duquesne Law School received ministration questions regarding its poli­ Many students were concerned with the ABA accreditation. After a year of prepa­ cies. Assistant Dean John Rago informed results of last year's ABA review. Dean ration, committees, and review by the t he students as to the changes he is im­ Cafardi reported that the findings were ABA, the Law School was deemed to be plementing in the Career Services Depart­ good; however, there are areas of the law in compliance with ABA standards and ment. These changes include but are not school that need to be addressed, includ­ was re-accredited . Because the law school limited to expanding the number of law ing possibly reducing the number of releases only results, more specific infor­ firms invited to interview on ·campus, required courses at Duquesne. Finally, mation is unavailable. see king non-local firms, and increasing Dean Cafardi indicated that the yearly stu­ alumni involvement. dent surveys conducted will be used by Associate Dean Raymond Sekula ad­ his administration to determine such Juris Takes 2d dressed students' concerns ranging from things as tenure and possibly the courses Juris was awarded second place in the selection of elective courses to park­ offered by the various professors. the 1992-93 ABA Law School Division ing problems. He discussed possible alter­ newspaper contest. The award was for the natives to the concerns expressed by the catagory of " Entire Magazine." Thank you students and stressed his dedication to DONALD FREDERICKSON to all who contributed to that success. a Juris ABA/LSD Launches Outreach Programs

The American Bar Association Law prehensive enough so an individual placement. This is a fantastic opportunity Student Division held its annual meeting school can modify the suggested format for law students interested in working in New York City in August. The highlight to meet their own student body require­ with European attorneys. of the meeting revolved around three ments. Some of the OAI topics currently In addition, law students from projects that the Law Student Division available include student-attorney mentor around the country gathered to discuss took an active interest in supporting this program, work-a-day, improper interview­ topics of concern to both law students and year. ing questions, in-house childcare pro­ recent law school graduates. Each school Together with the Young Lawyers grams, speakers bureau, resume in attendance voted on resolutions Division, the Law Student Division co­ clearinghouse, Volunteer Income Tax As­ brought before the delegate body. Reso­ sponsored a series of three public service sistance, law students for literacy, and lutions covered topics such as the national announcements (PSAs) focused on professionalism and ethics. Many of these service legislation, policies against sexual preventing hate crimes. The PSAs were projects were initiated and are jointly harassment, on-campus recruiting, writing previewed at the annual meeting. A ser­ sponsored by the Young Lawyers Division. requirements, discrimination in bar admis­ ies of photographs of children engaged in There is financial assistance for interest­ sion requirements, and direct student play activities were presented while a nar­ ed law schools to cover the start-up costs loans. rator discussed hate crimes in the back­ of a particular program. The three major projects that were ground. Both Divisions are proud of the The Law Student Division an­ previewed at the annual meeting reflect work that went into creating the PSAs and nounced the first international intern­ the commitment of law students working the great reception they have received ships. Together with the Association together to provide greater opportunities from the media. Press kits are available for Internationale Des Jeunes Avocats (Inter­ for themselves while contributing time dissemination from the central ABA office national Association of Young Lawyers), and energies to public service programs. in Chicago. American law students can apply to work These programs demonstrate the initiative The Law Student Division also un­ in European law firms during the summer taken by students to reach out to their veiled their Outreach Assistance Initiative of 1994. Each internship lasts approximate­ communities and begin to build strong (OAI) booklets. These booklets are ly eight weeks and students will receive relationships, the roots of which they can designed to assist law schools in im­ a small stipend to cover their living costs. foster after graduation. This commitment plementing public service programs on Those students who are interested must should be commended and supported by their campuses. Each booklet provides a apply by Oct. 15, to the Law Student Office law students, law schools and attorneys step by step guide for replicating an ex­ in Chicago. The most promising applicants everywhere. isting program. The information is com- will be forwarded to the AIJA for final JOANNE E. COHEN Parker, Woodhouse Honored Judge Lewis Addresses Grads; Sciullo Named 1st Dean Emeritus

The keynote speaker at the 1993 address received the highest praise from graduation was Judge Timothy K. Lewis, President John E. Murray, Jr. and is reprint­ the youngest federal judge ever to be ap­ ed in this issue on page 7. pointed to the United States District Court Also at graduation, the title Dean for Western Pennsylvania, and then to the Emeritus was awarded to Dean John J. United States Court of Appeals for the Sciullo by President Murray. Dean Sciullo University President John E. Murray, Jr. speaks Third Circuit. His commencement speech is the first dean to receive such an honor to soon to be graduates. in the history of the Law School. The 1993 Senior Dinner and Awards Banquet was held at the LeMont Restau­ rant on Mount Washington. In a not-too­ common event, two graduates received the Distinguished Student Award. Brian Parker and Sammuel S. Woodhouse were honored upon recommendation of the faculty for the outstanding service, honor and scholarly distinction they brought to the Law School without expectation of 1992-93 SBA President Brian Parker speaks to fellow graduates at graduation ceremony. To the right personal recognition. of Mr. Parker, Dean Sciullo and Judge Lewis look on.

Fall• 1993 iti Judge Timothy K. Lewis

On June 13, Judge Timothy K. Lewis white-collar and financial crimes. tional Bar Associations. Judge Lewis also of the U.S. Court of Appeals for the Third OnJuly1, 1992,attheageof36, Timo­ serves on the Board of Visitors of the Circuit delivered the commencement ad­ thy K. Lewis was appointed by President University of Chicago School of Law and is dress to the Duquesne University Law Bush as a U.S. District Court Judge for the an associate member of the Joint Center for School's 1993 graduating class. Judge Lewis Western District of Penn sylvania. On Oct. Political and Economic Studies in Washing­ found himself on familiar ground si nce 23, 1992, only 15 months later, President ton, D.C. although he is a graduate of Tufts Univer­ Bush then elevated Judge Lewis to the U.S. Judge Lewis is a life-long resident of sity, he received his JD from the School of Court of Appeals for t he Third Circuit. Pittsburgh, where his family has resided Law at Duquesne. Judge Lewis was the youngest federal since t he early 1800s. He and his wife Judge Lewis began his distinguished judge in the United States at the time of Elizabeth, a mental health consultant, are career first as a state and then as a federal both of these appointments. the proud parents of a daughter, Margot, prosecutor. He se rved as an As sistant Dis­ Over the years, Judge Lewis has and a son, Eric. trict Attorney in Allegheny County, where served on the boards of various non-profit The focal point of Judge Lewis' he prosecuted a wide variety of criminal organizations in the Pittsburgh area. Addi­ speech is a story in which he relates one cases. Subsequently, he served as an Ass is­ tionally, he is a member of the Allegheny young law student's graduation experience tant U.S. Attorney, focusing primarily on County, Pennsylvania, American and Na- which we now print with his permission.

FAITH SLAMPAK, second year day

selection, the public would directly vote for Joy Flowers Conti retention, thus not losi ng its vote com­ pletely. In addition to her activity with the Boosting public confidence in the ju­ county bar, Conti is active with both the dicial system is a personal and profession­ state and national organizations because al goal of Joy Flowers Conti, current she says it's a way to have an impact on the president of the Allegheny County Bar As­ legal professi on. She became involved im­ sociation (ACBA) and a distinguished mediately after graduation and was the first graduate of both Duquesne University and woman chairperson of the Young Lawyer's its School of Law. Section of the ACBA. Conti as head of the ACBA pushed A native of the Pittsburgh region for voter support of last spring's success­ whose father was in the military, Conti was ful primary referendum on tighter policing educated overseas. She came to Duquesne of state judges. That referendum called for because it was in Pittsburgh, and because a two-tiered system open to the public in a high school guidance counselor told her which the Supreme Court would not sit in the university "had those Tamburitzens." judgment of one of its members. merit selection of appellate judges as a She was apolitical science major on partial "We are all aware of the problems means to instill confidence in the judicial scholarship during her undergraduate with the Supreme Court these past few system. The current system, Conti believes, years, and was a varsity cheerleader during years. Maybe in a true sense justice is done, results in judges being elected because of the era when the basketball team was na­ but the public doesn't see it that way," she clever advertising. " The natu.re of the po­ tionally known. said. litical system today is that you don't get to At the law school, Conti was one of " We are concerned about public see the backgrounds of the candidates; only seven women in her day-division class. perception-who's right and who's wrong whether they have judicial temperament, She went on to be editor-in-chief of Law with respect to the current dispute that's their level of experience." Review and a national appellate moot court going on w ith the court is not the issue-it Under a system favored by the bar as­ winner. Upon graduation she clerked for was the fact that the very people who are sociation, judic:ial candidates would be Justice Mandarino, and then joined the being scrutinized were the ones who were screened by a committee consisting of at Pittsburgh law firm of Kirkpatrick & Lock­ doing the reviewing process themselves." least half non-lawyers. Recommendations hart for two years. Conti became a tenured she added. would then be made to the governor, with professor at Duquesne and taught corpo­ Conti emphasized, however, that the approval followed by the legislature. " It's rations. She rejoined Kirkpatrick & Lock­ ACBA has no opinion on the current con­ still a political system, but what you have hart in 1982 and is a partner whose area of troversy, only on its method of resolution. are standard criteria, and a determination interests are corporations and bankruptcy. " We are not a fact-gathering body, or a dis­ by the committee that the candidates have She is also the mother of three sons and ciplinary body. Our position is, let the met the minimum threshold level," Conti serves on the board of Catholic Charities. process work. We urge cooperation." said. Conti and the ACBA also support She added that after initial merit SALLY MILLER, fourth year evening II Juris Portrait of a Daydream

of law had left him with far more questions thinning hair, looked somewhat disheveled than answers. And because of the unend­ and were engrossed in serious debate over ing stream of questions that his studies had the President's choice to fill the most recent placed in his mind, he had developed a Supreme Court vacancy. strange practice, indeed; for instead of an­ After a while, the discussion calmed swering his professors questions on final and they fixed their eyes upon Blexis. He exams, Blexis would ask questions. As a waited for a sign that it was alright to pose result, the possibility of law review was a a question, but before he could utter a distant memory. The professors, of course, word, the one seated in the middle, at the were amused by Blexis' unusual penchant head of the table, spoke. This man ap­ and even looked forward to being asked peared well over six feet tall, lanky but not questions they had no intention of answer­ thin, had reddish brown hair combed ing. But they could not reward him with any loosely over the forehead and tied behind. better than a low-B grade point average. He had expressive hazel-blue eyes, a broad face with high cheekbones and a long, In the end, though, Blexis had per­ straight nose. His attire was careless but formed well enough to receive his jurisdoc­ fastidious enough, although Blexis had Judge Lewis, Third Circuit Court of tor. And so, there he sat, with cap and never seen anyone wear such clothes. Appeals, delivered the following com­ gown, a bit uncertain as to what his future mencement address to the Class of 1993. held, relieved to be among the distin­ Once upon a time there was a soon­ guished throng and, as always, brimming to-be law school graduate by the name of­ with so many yet unanswered questions as Blexis. His parents named him Blexis be­ to the meaning of the law in today's socie­ cause they realized he would probably ty and his destiny in both. want to become a lawyer and they thought And as he sat and listened, he mused. that "Bwest-law" sounded a bit preten­ Tired already of the long-winded com­ As a peacemaker, tious. Blexis was pleased to be done with mencement speech, he closed his eyes and the long hours of arduous study and the mused some more. His were not the usual the lawyer has a endless and vain search forthe right answer thoughts of satisfaction and accomplish­ in any of Professor Murphy's courses. He ment and the champagne and high-fives superioropporlunity was poised, finally, to receive his diploma that would soon follow, though; instead, he of being a and begin a life of applying the theoretical thought of the venerable old admiral and underpinnings that make law schools the war hero who had been tapped by Ross good person. places of intellectual discipline they are to Perot to be his running mate and who, in real life clients and real life problems. his opening statement in a vice presiden­ All that stood between the past and tial debate, had taken a page from Blexis' the future, it seemed, was the final, tradi­ book by posing a question to his interlocu­ tional requirement of maintaining a stoic si­ tors when he asked: " Who am I, and why lence during the commencement speaker's am I here?'; Why had the old admiral been soon-to-be forgotten address, and gather­ ·chastised in the media for asking the ulti­ "Young man," he began, " you seem ing the presence of mind actually to walk mate relevant question, Blexis asked him­ a bit troubled by your experience and per­ up and, in a dignified manner, receive his self? Why, I've been asking myself that formance over the past few years of law laurel crown. question for three years and as I sit here school. Before you set out to pursue your Now, Blexis had been anything but now, the uncertainty lingers. practice, we have convened to offer you a an ordinary law student. Bright, energetic And with his eyes closed and his cap glimpse of what should be your destiny. It and cheerful, to be sure, Blexis had per­ still balanced awkwardly atop his head, he is only fitting that we do so since, after all, formed well enough in law school to earn began to dream. And suddenly, there ap­ we have wrought much of what concerns the esteem of his classmates and the admi­ peared in Blexis' dream three figures. They you now. Fear not that you have tuned out ration of his professors. His answers rev­ were seated at the end of a long mahoga­ your commencement speaker and find ealed his meticulous preparation for each ny conference table in a room with no win­ yourself in our presence now, for if your law day's lectures, and his erudite manner and dows; a room which nonetheless glowed school dean student committee could have inquisitive nature instilled in all a confi­ with a light so bright Blexis could barely brought us to speak, I assure you, my young dence that he would, indeed, make a dis­ open his eyes. The three bore a slight friend, they most certainly would have tinguished name at the bar. resemblance to some portraits and photo­ done so. This, then, is your commencement But Blexis, himself, was not so sure. graphs he had seen before in law school, address." And his uncertainty emanated from his when he stopped reading books with por­ Blexis swallowed hard, but his throat grades, for when he would put aside his traits and photographs. He immediately was bone dry, for he suddenly recognized casebooks and his notes and his Gilberts sensed that they were either reporters or the speaker, and he was frozen. The old and Nutshells, he would find that the study lawyers, for they each wore glasses, had man continued.

Fall• 1993 d " Young man," the old man con­ plead what you need not less you oblige tinued, " your apprenticeship- your yourself to prove what you cannot. Just be . your studies should studies-should not be so much an appren­ logical and concise so everybody under­ ticeship for law as an apprenticeship for stands what you mean." not be so much greatness. One never knows what direction "Most important, young Blexis, be one's career might take at any given mo­ honest. People used to refer to me as an apprenticeship ment. A little less than two years after I left 'honest' before they'd even get to my first practice of law at age 31, I found myself sit­ name, and I'm proud of that even now. for law as an ting in a rooming house at the corner of There has always been a vague popular be­ apprenticeship for Seventh and Market streets in Philadelphia lief that lawyers are necessarily dishonest. setting out on paper much of what I had I say vague because when one consi ders to greatness. learned in my legal srudies and through my what extent confidence and honors are re­ questions about society, and the result, of posed in and conferred upon lawyers by course, was the Declaration of Indepen­ the people, it appears that their impression "When I began my legal studies, the dence. When I wrote that we pledged our of dishonesty is very distinct and vivid. Yet, legal profession did not enjoy a high pub­ lives, our fortunes and our sacred honor to the impression is common, almost univer­ lic reputation. We had no formalized in­ that document, I was speaking to values sal. Let no young person choosing the law struction in a law school; our way to the bar and principles that are transcendent, and for a calling for a moment yield to the popu­ was through an apprenticeship. And, of even today, a lawyer would do well to ad­ lar belief-resolve to be honest at all events; course, one had to choose a mentor. My here to his or her approach to the practice. and if in your judgment you cannot be an mentor and teacher was George Wythe of You see, in every lawyer worthy of the honest lawyer, resolve to be honest without Virginia. My apprenticeship with him last­ profession, there burns an ambition to help being a lawyer." ed a full five years. Why, my dear colleague, ensure that the profession will be stronger "That, young Blexis, is who you are John Adams, studied with Wythe for two by virtue of his or her participation in it, and trying to be and why you are here today." years and John Marshall for only three to help improve upon the law as an instru­ months. Undoubtedly, had Marshall ment of human justice. Your charge today, studied longer he would never have ren­ my young friend, is to realize this desire and dered that horrible decision in Marbury v. to grasp it with furious energy." ... it was the law that Madison, but, what's done is done. Patrick The old man leaned back in his chair enslaved us and it Henry studied only six weeks but went on and, with a faint smile, turned his head and to become the truly outstanding trial law­ nodded toward the man seated to his right. was the law that yer in the Colony." This was a tall, homely man who ap­ " My point, young man, is that the peared at first to be asleep. He slowly re­ made us free. questions you have been asking must con­ moved his glasses and rubbed his eyes. He tinue, for if you are to make a contribution stroked his beard as he shifted uncomfort­ to your society and to your profession, you ably in his chair and redistributed his large With that, the tall bearded man once must never indulge the fanciful notion that body. Blexis could not speak; he did not again shifted his large frame and nodded your education is complete-even as you need to. his head toward the large, dark man seat­ receiveyourdiploma today. A lawyer's edu­ "Young Blexis," he began, "I was ad­ ed across the table. cation is never complete." mitted to the Illinois bar when I was about This man began with a question, " Do " I do not suggestthat you follow my your age and I didn't know anything, except you want to practice law, Mr. Blexis, or do rigorous schedule to the fullest, for the that I wanted to do some good." you want to live the law? Your professors world has changed since I practiced law; "My advice to you is based on what have been asking you questions and you but I do implore you to augment your law I tried to do then and what I had to do much have been asking questions back. You may practice with a continuing quest for the later in my life, after I had given up the prac­ not have understood, but in doing so you knowledge of man and man's knowledge tice of law in favor of national politics: dis­ have been questioning yourself and your of himself. To do this, you must read courage disputes! Discourage litigation. Try values, and those of your society. That is more-much more-than the law. Read po­ to persuade your clients to settle their why we are here. That is how we lived the litics; read history. Study ethics, both your differences and to compromise. For one law; we think that is your direction." own and the code adopted for your prac­ thing, that'll give federal appellate judges "The law," the man continued, " is tice. Read criticism, oratory; read the best less to worry about. Point out to your clients about values. Sometimes these values be­ of the poets, but among these Shakespeare how the nominal winner is often the real come misplaced. That is why you must con­ must be singled out by anyone who wish­ loser - in fees, expenses and waste of time. tinue to question. You must always es to learn the full powers of the English lan­ As a peacemaker, the lawyer has a superi­ remember, Mr. Blexis, thatfor many of your guage, for as a lawyer, you must pay great or opportunity of being a good person.And colleagues and fellow citizens, it was the attention to the elegance and correctness that, in part is your goal." law that enslaved us and it was the law that of your language. Read the orations of "They say that simplicity was a part of made us free." Demosthenes and Cicero; analyze these my art, and that may be so.Try to avoid the "I was born in America where Plessy orations. And listen well to all." Blexis young lawyer's trap of using all those big v. Ferguson, the most wretched decision gaped, mouth wide open. "Demosthenes legal words. Never use two words where ever rendered against black people, and in and Cicero?" He wondered. "Will they be one will do. Don't argue points that are un­ a larger sense, against basic principles of on the bar exam?" essential. In law, it is good policy never to equality, was the law of the land. I began my

El Juris law practice in a segregated society. But I continued to question. When I argued the case of Brown v. Board of Education, the case that made the 14th Amendment viable for all Americans, I had to understand the values that form the law to convince the Supreme Court to change the law. And even with that change, for women, for blacks, for all of us, there remained a need to question. There would not be a Sandra Day O'Connor, a Colin Powell, a Janet Reno, without the continuing reassessment of our values. We, as lawyers, no matter what type of law we practice teach or inter­ pret, must find a scope and meaning in our work that enables us to further the cause of justice. And if I may serve as an example to you, Blexis, let it be this: a lawyer's life experience-even the experience of cruel injustice-can be communicated and can produce wisdom. Go out and learn more about life, and bring what you learn with you to court." The man continued. " In my last few years on the Court, Blexis, I became a fre­ quent, almost chronic, dissenter. But I con­ tinued to dissent because of my belief in the power of the law to help make us ajustand equal society, and my fear of the abuse of power to draw a contract, to take away that power. And this brings me to my final someone's wealth or perhaps even their piece of advice to you on this glorious oc­ freedom. You have the power to utter cer­ casion. Revel in your accomplishment. You tain words that are almost an incantation have worked hard and you have paid your that make certain things happen; that un­ dues, and the degree you will receive today, 0 lock doors to business and government. young man, is something to be proud of. Consider the diploma you will receive to­ But it is also something you should receive day a certificate of competence, enabling with humility. You must understand the you to do the work of a lawyer, but also to power that is placed in your hands, and be­ serve as an educator and missionary to the ware of arrogance. You will now have the public." " You cannot become cynical, for you are a part of the public. And no matter what pathway you take from here, you wou Id do well to devote some portion of your profes­ sional life to the public." And with a twin­ 0 kle in his eye, and in characteristic humor, OQO the old man leaned forward and added, " If you really are self-abusive, Blexis, you will 0 become a judge or a justice." And with that, the three men stood up and the room darkened. But not before he heard one of the voices utter words he could barely make out as they faded into the distance. "Congratulations, Blexis. You made it. You're on you way. Do us proud, that we may save a seat for you here in our pantheon someday .. . " And with the third elbow to the ribs and the second time his name was called, Blexis awakened, and he was indeed, as is the Class of 1993, on his way.

JUDGE TIMOTHY K. LEWIS, U.S. Court of Appeals, Third Circuit

Fall• 1993 II In Step With Dean Cafardi

Nicholas P. Cafardi is excited about reduced legal bills by 90 percent. His his new job. secret: " Proper management, that's all." And why not? As dean of the law Beyond the law school's own suc­ school since July, he has set out for him­ cesses, Cafardi sees Pittsburgh's burgeon­ self a challenging three-year tenure to ing health care industry as ripe for make the Duquesne University School of inclusion somewhere in the law school Law one of the best in the nation. curriculum. But, he's starting out with smaller " We live in the center of one of the steps: establishing his own rapport with biggest health care delivery systems in the students, faculty and community by being country. We have one course in hospital a good listener and being available to law. We could do more in that area." those constituencies. Cafardi's interest in European law­ " I want the law school to become he once thought of practici ng law in better before it becomes bigger," Cafardi Rome-may lead to a course in European says. " Not to criticize previous efforts, but economic law. you can look at anything with a fresh pair "I also would like to see more of eyes and make it better. Once things computer-centered learning. I would like are better, we'll think about getting us to focus more on practical skills. I don't bigger." know that we do anywhere near enough Part of getting better is paying atten­ legal writing." tion to what law students want in their Cafardi's scanning of the horizon education. Cafardi says he plans to work shows other, more adverturesome aca­ closely with the student bar in making any demic moves. changes in the law school. He sees a possi ble summer school " I expect to hold regularly sched­ program with the China University of Po­ uled meetings to address student con­ litical Science and Law in Beijing. cerns quickly. You keep problems small "That is a fantastic opportunity. by jumping on them right away. We will There's no doubt in my mind that if we are work to make things better; that will make Murray, under whom Cafardi had served the only American law school with a pro­ us bigger and I think we will receive recog­ as assistant dean at the University of Pitts­ gram in Beijing and if we link up with the nition for what we are doing." burgh School of Law for four years. University of Political Science and Law, the Cafardi says he is going to pay par­ "I also know that Duquesne is a fan­ only law school in Beijing, Duquesne ticularly close attention to what the law tastic asset to the community. An im­ would receive increased attention, in­ school's evening students are saying. mense wellspring of affection in creased publicity, and more people would " They have been through significant Pittsburgh exists for this place. People feel understand our capabilities." work experience. We need to pay atten­ good about Duquesne. They want it to Rome one day may be a summer tion to their perceptions about their edu­ succeed." school venue for Duquesne students, ac­ cation." For Cafardi to succeed as the law cording to Cafardi's dream. Cafardi, his Cafardi sees the roots of his school's leader, he had to climb over his wife, Kathleen Shepard, a pediatrician, and challenge stretching back to 1988, when own fears about the job. their sons, Nico and Chris spent a year in he came to Duquesne as the university's "My experience in law school ad­ Rome in 1985 while Cafardi pursued his general counsel. ministration at the University of Pittsburgh degree in canon law . That was a time, according to provided me with a solid background, so " Right now Loyola and Temple con­ Cafardi, when Duquesne faced a series of I wasn't scared about having a lack of ex­ duct programs in Rome. I'm not sure the problems: decreased enrollment; student perience in administration. city can stand a third American summer unrest; faculty dissatisfaction; and public "However, I was a bit worried that program. But I think that this program is criticism in the media. I wasn't a great legal scholar, and I feel that down the road, and I have the con­ " Coming to Duquesne was a profes­ sometimes deans should be great nections." sional risk. But it was the right thing to scholars." But for now, Cafardi is trying to set­ do." Cafardi isn't exactly new to adminis­ tle into his new role. And with an impor­ Cafardi says he feels particularly trative duties. tant part of that role being a close confident with John Murray in the presi­ As assistant dean at the University connection to law school students, Cafardi dent's office. of Pittsburgh School of Law, he managed plans to take on a half teaching load. "I know that he is capable of accom­ a multimillion dollar budget. As general Students will see him in classes for plishing incredible things," Cafardi said of counsel for Duquesne University, he Tax Exempt Organizations and Canon Law.

Juris He's also thinking of offering a course in European Community Law. Helping students land jobs also is high on Cafardi's list of priorities. He points to his appointment of John Rago as assistant dean to manage the Career Services Office as a sign of this em­ phasis. " I appointed (Rago) to the Career Services Office because of the importance of having a lawyer. " I was concerned about having somebody who knows the Pittsburgh le­ gal community, who had found his own job and who knew what the process was like. I also wanted that person to be a re­ cent graduate of the school. John Rago fills all of these credentials. " John is the kind of person who will be on the telephone making calls on be­ half of students. The job requires some­ body who has been through the mill Focusing on the attorneys who don't themselves. W e need the career office to think about new things to help our stu­ positively contribute to our society dents find jobs." With the United States having half is an improper characterization. of all the lawyers in the world, are Duquesne and other law schools simply adding to the overcrowding at t he bar? law who aren't out for the quick dollar, lawyer for the Divine Redeemer Sisters of Cafardi doesn't think so. who aren't out to make the lives of others Elizabeth, Pa. "The fact of the matter is we have difficult by meeting their client's need for Cafardi also volunteers in commu­ the freest society on earth and despite our revenge. nity service. economic difficulties we have one of the "After eighteen years in Pittsburgh, He is a member of three profession­ stronger economies in the world. I think I have observed that most lawyers don't al societies, and is the founding member lawyers make us a freer society. come near that characterization. I don't of the Allegheny County Bar Association's Section on Tax Exempt Organizations. "Focusi ng on the attorneys who think I've met more than two or three law­ don't posi tively contribute to our society yers in that category. Law school by itself He has been honored by the Board is an improper characterization, and law­ cannot change that image. Lawyers in­ of Governors of the Cannon Law Society· of America and has been elected to the yers do not fight back enough. dividually can change the image. Century Club of Distinguished Duquesne "The best way to counter that image " Although a few lawyers may prac­ University Alumni. is to be the best lawyer you ca n be. Let the tice unethically, Duquesne lawyers have earned respect. That is one reason why Teaching law and administering a people w ith whom you come in contact people want Duquesne to succeed. law school don't consume all of Cafardi's know that people with integrity practice "We are not a factory that produces time. He recently has taken up golf-" I've only lawyers; in fact some students come played only 3 games so far and I've yet to to school without any intention of being break 100" -and he makes sure to exer­ a lawyer. cise regularly. "Other law schools do not offer "Exercise is a great way to work off courses in Philosophy of Law, Canon Law, tension and helps me handle stress much Law and Religion, Jewish Law, and Ethics. better." Not all these courses are required, but we Some of that stress surely will come offer students the opportunity to take from the seemingly never-ending line of these courses. This is one reason why the questions that need answers. And Cafardi community wants us to succeed." says he is ready for the challenge. Cafardi himself has an active prac­ "People will have an opportunity to tice of law. He's doing work for the Arch­ meet with me and express their problems, § diocese of New Orleans; the Sisters of but I will make the decisions." ~ Mercy of Erie; the Holy Cross Sisters from " The daily problems are my job. If

viti s t. Mary's College in Notre Dame; the I am going to be remembered for any­ ~ Holy Ghost Fathers; and the Vincentian thing, I want it to be that people find me ~ Sisters. to be available, that I listened, and that I .0 s He's also chairman of the board of was fair." 0 ~-~~-'----' f the Vincentian Nursing Home and is the MICHAEL STEPHAN, third year evening

Fall· 1993 w In Sync With Dean Sekula

There is a preponderance of evi­ demic affairs." He stressed that the posi­ dence to support a presumption that a tion does not encompass any policy­ transformation has happened at the Law making powers, but instead concentrates School. Professor Raymond F. Sekula's on providing assistance to faculty and the new office on the second floor of the law dean. building permits an inference of such a In addition to discussing his legal change to be drawn. Direct evidence of background and current status at Du­ such change is evident by his recent quesne, Dean Sekula also made general appointment as associate dean. This observations with respect to the evolution change punctuates a 26 year career at the of the legal profession. When asked about school in which Dean Sekula has taught the present condition of the legal profes­ a variety of subjects, including evidence sion, Dean Sekula remarked that the legal and tax. profession has changed significantly over Although Dean Sekula is primarily the past three decades. Prior to the Viet­ known to present students as a professor nam War, law students' expectations were of Evidence, it was the subject of taxation geared toward independence. During the that initially inspired him to enter the le­ 1970s, the emergence of high salaries by gal profession. He developed this interest the large corporate law firms shifted these during his undergraduate studies at Du­ expectations by enticing prospective law­ quesne University as an accounting major. yers to become employees. While not be­ Shortly thereafter, he entered Duquesne ing critical of this transformation, Dean Law School and was soon entertaining Sekula promotes private practice as a high­ thoughts of becoming a teacher. ly fulfilling experience and encourages This notion took shape when he ac­ students to consider such a career. cepted an instructorship at the Universi­ It is obvious that Dean Sekula brings ty of Virginia Law School upon completion to his new position an understanding and of his legal studies. He headed the Legal perspective that goes far beyond the Fed­ Process and Research course at Virginia eral Rules of Evidence. As a diversified for two years and earned an L.L.M. degree professor who has experience in the prac­ in taxation before returning to Pittsburgh tice of law, Dean Sekula was undoubted­ in 1996. After practicing law at a number ly a fitting selection for associate dean. of firms in the area, in 1968, Dean Sekula Although one may conclude that the accepted a faculty position at Duquesne aforementioned statements are hearsay, Law School. being introduced for the truth of the as­ One might wonder what the func­ sertion, there is definitely an exception tion of an associate dean is. Dean Sekula when it comes to Dean Sekula. defined his new role in essentially one line. He is "to implement the policies of the dean and faculty in the realm of aca- JIM TONE, third year evening

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The recent changing of the guard at improve the services offered by the Career the Law School returned john T. Rago to Services Office. Among these changes, the Duquesne University as the newly ap­ dean wishes to increase the involvement pointed Assistant Dean. He brings with of the faculty, upgrade library resources, him many fresh and innovative ideas and utilize Duquesne Law Alumni as in­ gained from his years of experience in the valuable sources of information for stu­ public and private sectors. dents. The new dean encourages students Dean Rago graduated from Du­ to share their ideas in any of these areas, quesne University in 1979 and later attend­ including making the library more com­ ed Duquesne's Law School where he was plete by requesting resources that the the editor of JURIS. Dean Rago was in­ library may not yet have on its shelves. fluenced to pursue a career in the law by Dean Rago plans to make other his friendships with various faculty mem­ changes as well. To insure all students bers here at Duquesne, along with his know where the Career Services Office is desire to provide services to people. Af­ located, new signs will direct students and ter graduating from the Law School in alumni to the office so they can easily use 1987, Dean Rago clerked for several judges its services. Also, every student will receive and was involved in private practice. Dean a new Career Services Handbook, which Rago feels that his federal clerkship was will disseminate helpful employment in­ his most rewarding working experience. formation. Perhaps more importantly, dur­ Dean Rago's wife, Ann, is the Execu­ ing the fall recruiting season, students' tive Director for Public Affairs here at Du­ resumes will no longer be screened by the quesne. The Ragos have a daughter, Annie Career Services Office nor will the office J., who is three years old. Along with run a lottery system for fall interviews. In­ spending time with his family, Dean Rago stead, the office will give a copy of all sub­ enjoys yard work and is actively involved mitted resumes to an employer. Thus, in an organization called the Foundation each employer will ultimately decide who for Performing Arts Education. As the only they would like to interview based on the American member of the Board of Direc­ resumes submitted. Finally, Dean Rago en­ tors, Dean Rago, with a little help from his courages students to be confident, take wife, once had the opportunity to inter­ advantage of the opportunities and op­ view Paul McCartney. The Ragos and the tions that are open to them and realize former Beatie have kept in touch over the that a law degree is versatile. years. We welcome Dean Rago back to Du­ Dean Rago returned to Duquesne quesne and wish him the best of luck and University as the Assistant Dean of the Law success. School because he felt it was a wonderful opportunity. As the Assistant Dean, one of his primary responsibilities will be to CHRISTY FEDIGAN, third year day

"' ~ I z ~ Dean Rago is joined by Susan Gaetano, Student i Bar Association President, in introducing the stu- 0 dent body to administrative changes during the f "Meet the Deans" assembly.

Fall• 1993 w For Better or for Worse

Rape is by far the most frightening, the traditional notions of the role of mar­ comes clear that they have no place in horrifying, and afflicting ordeal women ried women and the purposes behind the today's society. Today the perception of may experience. The effects of rape are enactment of rape laws. Rape laws were women is gradually transforming, and re­ both devastating and everlasting. The ef­ developed at a time when women were form is necessary and essential. fects are intensified when a woman is considered chattel of their father or hus­ The marital rape problem has raped by someone she knows. Perhaps band. Accordingly, the rape laws were de­ gained the attention of several women's the ultimate betrayal occurs when a wom­ veloped to insure a wife's value as a sex political action groups, which has sparked an is raped by her husband. object for her husband.4 Therefore, a hus­ changes in state statutes. Nevertheless, Abigale Andrews Tierney stated that band forcing sex on his wife was merely there are states where marital rape exemp­ when a woman has been ultimately vio­ making use of his own property.5 The rape tions exist. In Alabama, Illinois, South lated by a person who is supposed to love laws were viewed as protection of male Dakota and Vermont, there is absolute ex­ and protect her, it can destroy her capac­ property. emption. A husband is immune from ity for intimacy with someone else. prosecution until the moment when a Moreover, many wife victims may be divorce decree legally ends the marriage. trapped in a reign of terror - experienc­ Not only is this exemption ludicrous, but ing repeated sexual assaults over a peri­ it is al so unjust to wives who have virtual­ od of years. When a woman is raped by ly no protection. Under these statutes, a a stranger, she has to live with a frighten­ couple could be separated for years and ing memory. But when a woman is raped if a husband forcibly rapes his wife one by her husband, she has to live with a The husband cannot day before the divorce decree is final, he rapist. 1 Marital rape is unusually disturb­ be guilty of would be immune from prosecution. ing. Traditionally most people think of Some states have limitations on mar­ rape as involving a stranger hiding in the rape committed. ital rape exemptions. The least favorable bushes waiting to attack a "would be" vic­ limitation entitles a wife to protection from tim at random. However, fourteen percent upon his lawful wife, marital rape only after the couple is sepa­ of all married women are victims of mari­ rated under a court order.8 Kentucky, tal rape. Most marital rapes go unreport­ .... his property. Louisiana, Maryland, Missouri, North ed due to fear, intimidation, retaliation, Carolina, Rhode Island, South Carolina and disbelief, therefore, the figures are and Utah all have such statutes. These sta­ much higher. Based on the aforesaid, it is tutes place women at a disadvantage and obvious this is a very serious problem that at the mercy of the courts, especially con­ needs immediate attention. sidering the amount of time and money it takes to procure a court separation ord­ Theories of Hale Lord Hale's writing supported the er. Nine other states require that the ex­ Marital rape is as old as marriage it­ implied consent theory. According to emption end once the parties are no self. Recognition of the rape exemption Hale, a wife gives carte blanc consent to longer living together. These states are dates back to the 17th Century. Lord Mat­ sexual intercourse at the time of marriage. Alaska, Arizona, Colorado, Idaho, Maine, thew Hale wrote: ''The husband cannot be Therefore, consent to each occasion of Montana, New Mexico, Oklahoma and guilty of rape committed by himself upon sexual intercourse is unnecessary.6 Con­ Texas. Virginia, Arkansas, Georgia and his lawful wife, for by their matrimonial sequently, a husband cannot be prosecut­ Mississippi and the District of Columbia consent and contract the wife hath given ed for committing rape upon his wife are considered common law jurisdictions up herself in this kind unto her husband, since consent is always present. since they are officially silent on the mar­ which she cannot retract.2 Lord Hale's Finally, Hale's writings support the ital rape matter. There are twenty states words laid the foundation for the hus­ marital unity theory, which stated that a where cohabiting husbands can be band's immunity from prosecution and wife's legal identity merged into that of prosecuted for raping their wives. These became judicially recognized in the Unit­ her husband. By marriage, the husband are California, Connecticut, Delaware, ed States in 1857 in Commonwealth v. and the wife are one person in law, the be­ Florida, Hawaii, Iowa, Kansas, Mas­ Fogarty. 3 In this Massachusetts case, a hus­ i ng of the wife is suspended during mar­ sachusetts, Minnesota, Nebraska, New band was granted immunity from prose­ riage and consolidated into that of her Hampshire, New Jersey, New York, North cution for the rape of his wife because she husband. From that perspective, rape of Dakota, Oregon, Pennsylvania, Washing­ was considered his property. a woman was legally impossible since a ton, Wisconsin, West Virginia and Lord Hale's writing became the most man cannot rape himself.7 It is important Wyoming.9 frequently cited source for a husband's to note all of the theories and rationales It is interesting to note that in New immunity in the United States and in En­ that lend support to the marital rape ex­ York a high court declared the marital rape gland. His writings were supported by emption. Upon examining them, it be- exemption to be unconstitutional. In Ore- Iii Juris gon, the marital rape exemption no longer rape victims in general. While it appears exists. New Jersey has made marital rape that Pennsylvania has attempted to 'abol­ a criminal offense. The New Jersey law ish the marital rape exemption, its Spousal reads: "No actor shall be presumed to be Sexual Assault Law falls short. incapable of committing a crime under Unless marital rape Since marital rape is such a complex this chapter because of age, impotency or is treated in the problem and the states hold different the­ marriage to the victim." 10 11 Other states ories with respect to combat ing this like California and Connecticut have made same way as problem, the only recommendation that some progress in this regard but have not can be offered is to treat all rapes as just come as far as Orgeon or New Jersey. In non-marital rape, that-rape. There should no longer be any Connecticut, a law was passed that intend­ separate statutes for spousal sexual assault ed to make marital rape a criminal offense, women will continue or marital rape. A rape, is a rape, is a rape. but it was later discovered that the new In a society where women have made law left the spousal exemption intact on to be oppressed. numerous strides and in a society that ad­ several lesser degrees of sexual assault. vocates justice and protection for all, it is This is also the case in Iowa. an abomination that the judicial system In California, there is a special sec­ would advocate protecting husbands from tion for marital rape. While husbands can­ prosecution for raping their wives. Histor­ not necessarily claim a marital exemption, ical notions of characterizing women as a husband is nevertheless "exempt" if his property must be dispelled. Unless mari­ wife does not report the rape to the police tal rape is treated in the same way as non­ within 90 days. He is al so "exempt" if band may be charged w ith rape punish­ marital rape, women will continue to be the rape occurred because the victim able up to 20 years as a first degree oppressed. Marital rape is rape, and it is was incapable of giving consent (drunk, felony. However, a five year statute of limi­ imperative that the legislature recognize drugged, unconscious or mentally hand­ tation is imposed upon the w ife. This pro­ it as such. icapped). Also in California, the marital tection is also valid if a wife was rape law permits a husband to be charged intoxicated or mentally incapacitated. In JACQUELINE 0. BROO KS, with a misdemeanor rather than a felony, this instance a married spouse is treated fourth year evening thus allowing for substantially lesser crimi­ like a non-married rape victim. However, nal penalties. Moreover, husbands con­ if the marital rape victim resides with her victed of marital rape do not have to husband and there is no court imposed register as sex offenders as do men con­ separation order, the wife is not afforded victed of non-marital rape.1 2 the same protection as the aforemen­ Eight states are still silent on the is­ tioned spouse. In this situation, a wife is sue of the marital rape exemption. The not considered a rape victim but a victim general trend appears to be an attempt to of some form of assault. Unlike the first limit the marital rape exemption either by degree felony penalty available for the removing it entirely or by excluding sepa­ crime of rape, the victim's husband is only rated and divorced couples from its pur­ punishable with up to ten years' imprison­ view. Unfortunately, the marital rape ment under a second degree i elony. exemption still remains part of the Unit­ In addition, a spouse who resides ed States judicial system. with her husband rapist must report her The Pennsylvania legislature creat­ attack within 90 days to receive pro­ ed the crime of spousal sexual assault in tection under the law. Finally, the spousal References 1. Abigale Andrew s Tierney, Spousal Sexual Assault: December 1984, to eliminate criminal im­ sexual assault law excludes a provision Pennsylvania's Place on the Sliding Sca le of Pro· munity created by a perpetrator's marital that protects mentally deranged or defi­ tection From Marital Rape, 90 D ICK. l. REV. m (1986). status.13 cient victims who reside with their hus­ 2. l.M. Hale, Th e History of the Pleas of the Crown, Initially, Gov. Richard Thornburgh bands at the time of the rape. There is just 629 (S. Emlyn ed . 1778). vetoed House Bill 1137. The Governor ex­ such a provision contained in the general 3. Commonwealth v. Fogarty, 74 Mass. 489, 490 (1857). pressed concern that the commonwealth rape law in Pennsylvania. 4. Note, To Have and to Hold: The Marital Rape Ex­ would be entering the privacy of the home Spousal sexual assault victims are emption and the fo urteenth Amendment, 99 and sanctity of an ongoing marriage, and treated differently. Legally separated wom­ HARV. l. REV. 1255 (1986). 5. Id. that the bill would lead to frivolous and en living apart from their husbands are af­ 6. Id. capricious charges, particularly at a time forded protection equally commodious to 7. Id. at 1256. 8. David Finkelhor and Kersti Yllo, License to Rape, when a marriage is "dissolving as well as non-marital rape victims. Women who re­ Sexual Abuse of Wives, 140 NEW YORK: THE FREE devaluating the anguish suffered by real side with their husbands are treated like PR ESS (1987). rape victims."14 "second class citizens" and given inade­ 9. Id. at 141 . 10. N.J . STAT. ANN. § 2c14-5(b) (West 1992). Under Pennsylvania's Spousal Sex­ quate protection from the violent crime of 11 . Id. at 141-42. ual Assault Statute1s, if a couple is married, rape. As evidence, Pennsylvania makes an 12. 90 DICK. l. REV. at 785. but living apart or there is a court imposed obvious distinction between the protec­ 13. Id. 14. Id. separation order prior to the rape, the hus- tion afforded to marital rape victims and 15. 18 PA. CONS. STAT. § 3101- 3128. Fall• 1993 w Caution: Brain at Rest

It seems difficult to believe that I am art of photocopying, filing, or being held one-third of the way through law school. hostage for endless hours in the law Time really flies. It seems like only yester­ library, he or she would be free to engage day that I was procrastinating about read­ in whatever was of interest to him/her. ing Gideon's Trumpet. Now I'm doing the Throughout Pittsburgh there would be law same with the next selection in Dean Sciul­ students catching up on all those episodes lo's Book of the Month Club: Miracle at of The Simpsons that they missed during Philadelphia. This is not meant to slight the school year. There would be time for the Dean in any way. It's just that I inten­ long walks, swimming, and maybe even tionally put it on the back burner this sum­ time for discussions of relevant societal is­ mer. My reason for doing this was that the sues such as: " Who was the coolest summer of 1993 would be the final one sweathog?"; " What really happened to the that I would hold down a non-legal job. original Darrin on Bewitched?"; or "If you This summer I was a maintenance worker could be a member of the Village People for a certain highway that shall remain who would you be?" (My guess would be nameless (HINT: it runs through Pennsyl­ the cowboy). An intriguing idea perhaps, but reality calls vania). This provided a perfect opportunity Yes, the student would return to Du­ and I must be getting back to my reading. to do just what Professor Yochum and quesne in the fall ready to embark on the I think a good place to start is Gideon's others had advised: REST YOUR BRAIN. second year with a recharged mind and Trumpet. I'm anxious to see if Gideon and This "brain-get-away" should be a spirit along with some obscure job skill the Skipper get those people off the required three credit summer course for that perhaps might come into play during island. all first year students. Just imagine, instead the discussion of a case in class ("Why yes, of the weary student being schooled in the Professor Streib, I've handled roadkill!"). JAYME DEIBLER, second year day A Most Excellent Opinion

In 1992, Judge James C. Paine hand­ ed down a most excellent opinion con­ sidering whether the district court's *~9;A subject matter jurisdiction was properly invoked.1 Apparently, a fire on the Prime Time, a boat in a Florida marina, "hurled chunks of flaming debris," destroying ~~ boats owned by Plaintiffs.2 After Plaintiffs amended their complaints to include the ~-.. _Gt!] owner of the Prime Time as a defendant ("Prime Time"), Prime Time sought to re­ move the proceeding to federal court, claiming it had original jurisdiction in an admiralty dispute.3 The court agreed with Prime Time-"NOT!"-noting that the defendant "schw[u]ng and miss[ed]" by about nine months.4 "In short, Prime Time's most bogus attempt at removal is 'not worthy' and Defendants must 'party on' in state court."5 Juris staff members swear on a stack of UCC supplements, "we ain't lyin'."

References * 1. Noble v. Bradford Marine, Inc., 789 F. Supp. 395, 396 (S .D. Fla. 1992). 2. Id. 3. Id. 4. Id. at 397. 5. Id.

Juris Welcome to the Family Uncle Sam

After several years of heated debate weeks of leave. Her first 17 days of leave of Labor Statistics, both s pou s~s are em­ and a veto by the last administration, Presi­ will be paid, and the remaining forty-three ployed in 63 percent of married-couple dent Clinton last February signed into law days will be unpaid. families.10 By the end of this decade, nearly the Family and Medical Leave Act of 1993 80 percent of all mothers nationwide will ("Act"). 1 Effective Aug. 5, 1993, for busi­ Other Provisions work outside of the home sometime dur­ nesses with more than 50 employees (or Congress did not intend for the Act ing their child-rearing years. 11 Employee no later than Feb. 5, 1994 for those with to diminish any leave rights already turnover rate is high in many businesses, collective bargaining units), this legislation provided to employees either by their absenteeism abounds, and family medical guarantees eligible employees the right company or required by state law. For in­ costs soar-all taking a toll on a bu si ness' to take up to 12 weeks per year of un­ stance, some states currently require em­ bottom-line. A report by the Child Care paid leave from a job for family or medi­ ployers with less than 50 employees to Action Campaign reports that businesses cal reasons. Employees are entitled to provide certain types of leave. (California lose $3 billion annually as a result of child­ continued health benefits during their requires employers with at least five em­ care related absences alone.12 leave, as well as a return to their own job ployees to provide reasonable pregnancy Businesses are becoming increas­ or a comparable position with equivalent and disability leave; Oregon provides ingly motivated to recognize the work/fa­ pay and benefits. for childbirth or adoption leave for 25 mily relationship because press ures or more employees; Vermont requires associated w ith the labor shortage and the Who Is Eligible? childbirth or adoption leave for companies costs the company has to absorb when Employees are eligible for leave un­ with ten or more employees and health workers choose their home responsi bili­ der the Act if they have worked for a co­ care leave for serious medical reasons for ties over their work responsibilities are vered company for at least one year and businesses with fifteen or more em­ daily realities. Businesses are being 1,250 hours within the previous twelve ployees).7 challenged to view the Family and Medi­ month period.2 Additionally, they must Employees or the Secretary of Labor cal Leave Act as a means of increasing their work at a location where the employer may bring civil actions for relief for any competitive edge. Most cultures outsi de employs at least 50 employees within a violations of the Act. Available relief may the U.S. have a much greater concern for 75 mile radius. 3 include money damages for lost wages the family unit which is reflected in the and employment and actual damages such benefits given to employees. For instance, What Situations Qualify? as the cost of providing care, and equita­ parents in Sweden receive 15 months of Guaranteed leave is available for an ble relief such as employment, reinstate­ paid leave to divide up between them as employee to: care for a child after his/her ment, and promotion. Damages may also they wish during the first eight years of a birth or. adoption; take in a child through include reasonable attorney fees, fees of child's life.13 Although the government adoption or foster care; care for a child expert witnesses, and costs. 8 provides subsidies, Swedish businesses during the first year after birth or place­ Employers affected by the Act are re­ see it as a necessity to keeping its em­ ment; care for a child, spouse, parent or quired to post a notice summarizing the ployees productive. oneself if suffering from a "serious health law in a common area in their place of bus­ As U.S. companies compete more condition." The Act defines "serious iness. Additionally, employers with em ~ on a global basis, those with the happier, health condition" as "an illness, injury, im­ ployee handbooks or written policies more productive employees will have the pairment, or physical or mental condition regarding employee benefits or leave edge. that involves inpatient care in a hospital, rights, must revise such documents to in­ hospice, or residential health care facili­ clude information on the Act's provisions. GLENN E. CAMUS, third year evening ty; or continuing treatment by a health Fines of up to $100 per offense may result care provider."4 An employer may require for those businesses failing to comply.9 medical certification for any medical leave References request, or a certification and estimate of The Act Makes Good Business Sense 1. Family and Medical Leave Act of 1993, Pub. L. how much time is needed for family leave, The Fam ily and Medical Leave Act No. 103-3, § 101 , 107 Stat. 6 (1993). and may also require periodic recertifica­ represents a new avenue in national legis­ 2. Id. at § 101(2)(A). 3. Id. at § 101(2)(B)(ii). 5 tions during the leave. An employer who lation and opens new opportunities for 4. Id. at § 101(11). doubts the certification may, at its own ex­ businesses to change their way of viewing 5. Id. at § 103. pense, require a second, and in some employee benefits. Critics of this new law 6. Id. at § 102(d). 7. Peter M . Panken, The Family and Medical Leave cases, a third opinion. view the Act as another example of Act of 1993, 464 PRAC. L. INST. 215 (1993) If an employee is entitled to paid va­ government's excessive meddling in our 8. 107 Stat. 6 at § 107. country's free enterprise system. But one 9. Id. at § 109. cation or sick leave, the employee may 10. BARBARA S. VANDERKOLK & ARDI S A. YOUNG, THE elect or the employer may require that the thing they often fail to recognize is the WORK AND FAMILY REVOLUTION ix (1991). paid leave be taken first as part of the re­ drastic change occurring in the needs of 11 . Jennifer Haupt, Employee Action Prompts Management to Respond to Work-and-Family 6 quested leave. For instance, Mary's child the average American worker. The rela­ Needs, PERSONNEL J.. Feb. 1993, at 96. becomes seriously ill. Mary has three tionship between work, employees, and 12. Id. at 98. 13. Denise M . Topolnicki, The World's Best 5 Ideas: weeks of paid vacation and two personal their families is changing due to a shift in Sweden, How to Ca re for Our Yo ung Ones, days left for the year. She requests 12 family structure. According to the Bureau M ONEY M AG ., June 1, 1993, at 76.

Fall• 1993 m If I Need A Liver,

Organ transplants have become so waiting list. Eight people will die each day Donors and rec ipients are matched commonplace in Pittsburgh that we hardly across the country while waiting for or­ on the basis of blood type, body size, take note of their mention in the evening gans; one person will die in Pennsylvania.2 length of time on the waiting list and med­ news. In August 1992, USA Today report­ "That's the paradox of transplanta­ ical emergency. When news surfaced that ed that the University of Pittsburgh was tion: it takes a death to save a life," says the Governor waited less than 24 hours for the country's busiest organ transplant Roger W. Evans, head of health services available organs, many people were skep­ center with 736 transplants per year.1 Pitts­ evaluation at the Mayo Clinic and a lead­ tical. However, following an examination, burgh earned its reputation as a mecca for ing researcher on transplants. And be­ tests revealed that Gov. Casey suffered organ transplantation by serving as the cause of lengthening waiting lists, "every from a build-up of an abnormal protein home base for medical pioneers like Dr. time you do a transplant, someone's go­ produced by his liver. The build-up was Thomas E. Starzl, a renowned transplant ing to be elated to have that extra chance a result of a liver disease known as amyloi­ surgeon at the University of Pittsburgh at life and someone else is going to be dis­ dosis, which was attacking his heart and Medical Center (UPMC) and director of appointed."3 Ellen Moskowitz, a medical other vital organs. According to Dr. Starzl, the UPMC's Transplantation Institute. Dr. Gov. Casey's heart was in fibrillation, beat­ Starzl's team has performed countless ing irregularly and pumping ineffectively. transplant operations, many of which have He was listed as "stat 1" on the heart list become high-profile cases. the highest priority ranking of medical ur­ Pennsylvania's Gov. Robert P. Casey . . . the Governor gency. On the liver list, he was "stat 3," made the news when he received a heart waited less than the second-highest rank.7 Patients on the and liver transplant under the expert care waiting list for a heart transplant will wait of Dr. Starzl's team in June this year. Much 24 hours .... an average of 198 days. For liver transplant public concern was raised over the speed patients, the average wait is 67 days.8 with which donor organs became availa­ Patients on the Skeptics argue that the rich and fa­ ble for the governor: he was on the mous are given priority, while the poor are recipient waiting list for only one day be­ waiting list for a not even placed on a list. In order to be fore he received the organs. The donor, placed on a waiting list in Pittsburgh, a pa­ a 34-year-old man from Monessen, Pa., heart transplant . .. tient must be financially cleared, which was the victim of a fatal beating. The man wait an average of means that he or she must have sufficient had remained on life support at a nearby private health insurance, Medicare, hospital until his family decided to turn off 198 days. Medicaid or a substantial down payment the machines and donate his organs, -$208,000 for a liver transplant, $200,000 which were compatible with the gover­ for a heart transplant or $118,700 for a kid­ nor's tissue type. ney transplant.9 UPMC officials maintained that Gov. ethics attorney, calls it "a classit case of According to the United Network Casey had been placed at the top of the what's sometimes referred to as a tragic for Organ Sharing (UNOS), more than recipient list because he was in need of choice. There are more people who need 31,000 people in the United States are cur­ multiple organs. When a patient is in need the organs than there are organs available. rently waiting for donor organs. Last year, of multiple organs, it is preferable to take Therefore some people will live, and some approximately 25,000 were on the waiting them from one donor. Therefore, a people will die."4 Studies have shown that list.10 The Association of Organ Procure­ recipient needing more than one organ is anywhere from 30% to 50% of those wait­ ment Organizations (AOPO) reported that placed on a separate list. Officials ac­ ing for organs will die before what they in 1992, 4,549 organ donors resulted in knowledge that such a policy is open to need becomes available.5 14,062 transplants. (AOPO estimated there criticism. Some contend that the organs In the five days following Gov. were approximately 2,300 organs donated that went to Gov. Casey could have been Casey's heavily publicized heart-liver by living donors that were not included used to save two lives rather than one if transplant, Pittsburgh doctors performed in the report because they are not coor­ they had been given to the top priority pa­ 27 additional organ transplants, according dinated through organ procurement or­ tients from both the heart and liver to Brian Broznick, executive director of the ganizations [OPO].) According to the recipient lists. With all of the controversy Center for Organ Recovery and Education AOPO, 42 of the 65 OPOs in the United surrounding the issue of organ trans­ (CORE), the agency responsible for States reported a decrease or no change 11 plants, there seems to be no criticism­ recovering organs and getting them to in the rate of donation from 1991to1992. proof way to set guidelines. recipients in the tri-state area. In each of One issue that has sparked a lot of Owing to the unavailability of or­ these 27 cases, a donor had to die before cpntroversy is that of foreign organ gans, difficult decisions are made daily. the transplant operation could take place, recipients. Some have taken issue with the Obviously, it is not easy to decide who will and other desperately ill recipients had to fact that many foreigners come to the receive organs and who will remain on the be kept waiting in line.6 United States for transplants and often

Juris Should I Run For Office?

receive organs before U.S. citizens who Some maintain that such financial transplant programs to comply with are on the waiting list. A recent move in "trade offs" only serve to undermine the UNOS bylaws and policies. At present, Congress may ban foreign transplant pa­ credibility of U.S. transplant programs. compliance is voluntary. UNOS officials tients from receiving the scarce donated "Too many hospitals regard foreign trans­ stated that due to peer pressure, they cur­ U.S. organs. This would strongly affect plant patients as a cash cow," according rently have a high rate of policy compli­ hospitals that market abroad for wealthy to a House subcommittee spokesman. " To ance, despite a lack of regulatory power. patient referrals. In July 1993, the House perform a transplant on a forergn patient In most cases of non-compliance, trans­ Subcommittee on Health and Environ­ because they are wealthy enough to pay plant programs had a tendency to list pa­ ment approved a measure that will require for it denies a chance to a U.S. citizen. Ask tients as more critical than they actually organ transplant centers to place non-U.S. the families who have lost someone who were, thus allowing them to move to the 1 resi dents on a second, lower-priority wait­ was waiting for an organ if they are will­ top of the transplant list. 6 ing list. Once the main list is exhausted, ing to make that trade off."14 Congress passed the National Or­ an organ could then be offered to some­ Scripps Health and Sharp Health­ gan Transplant Act more than a decade one who is not a U.S. citizen. Because care, entities that operate two of San Die­ ago to prevent organ marketing. Any form of financial incentive would eventually there are not enough organs to meet the go's three certified transplant programs, demands of U.S. residents, legislation in­ aggressively seek foreign patient referrals lead to black marketing and to organs be­ troduced as part of the reauthorization bill for costly procedures such as bypass sur­ coming available only to those who could for the National Organ Transplant Act gery and organ transplants. Sharp Health­ afford to pay. The current system, would effectively close the door on for­ care and the San Diego Children's whatever its shortcomings, is based on the eign patients who come to the U.S. for Hospital jointly fund a business develop­ notion that organs will be distributed lifesaving transplants.12 ment entity called International Services democratically, at least to those who have Many U.S. hospitals aggressively (IS), which provides free, extensive con­ health coverage.17 market transplant programs in foreign sulting and development services with During the 1980s, opposition to any countries. Recent policy, enacted in 1986, physicians and hospitals in Mexico, type of remuneration was all but absolute. allows the nation's 811 transplant pro­ Micronesia, Japan and Hong Kong in Physicians and legislators believed that grams to perform up to 10 percent of do­ return for foreign patient referral. Sharp conscience, not cash, would lead individu­ nated organ transplants on non-U.S. Healthcare expects to reap $10 million in als or their families to donate organs in the residents. The bill in Congress would hospital revenues from patient referrals event of death. But because of technolog­ eliminate the 10 percent foreign-transplant that flow through 1s.1s ical advances in transplant and improved patient limit. Restricting transplants for In addition to eliminating the 10 per­ transplant success rates, the waiting lists foreign patients could pose a financial cent foreign patient transplant limit, the are steadily increasing, while organ dona- hardship on U.S. hospitals and poor U.S. proposed reauthorization bill would force patients whose transplants are, to some extent, underwritten by cash-paying for­ eign transplant patients. The portion of transplants performed on non-U.S. resi­ dents last year is a reported 1 percent to 4 percent for various types of donated or­ gans. Officials of Sharp Memorial Hospi­ tal in San Diego report that all four of the U.S. donor organ transplants performed on foreign patients there since 1990 were cash customers. Performing transplants on cash-paying patients allows the hospi­ tal to render services to other patients for whom the hospital would otherwise lose money. In retrospect, one full ca!lh-paying patient allows the hospital to perform serv­ Organ Donor stickers for your Pennsylvania Driver's License ices for four additional Medicaid patients. and information concerning organ donation are available from "Foreign patient transplants are an impor­ the Pennsylvania Department of Health, all Photo Driver's tant capital source that allows you to take License Centers, or by calling 1-800-692-7254. care of your own population. We take a loss on some and regain it on others," For those readers near The Law School, Juris has a limited stresses Dr. Auturo Martinez, a transplant supply of Organ Donor stickers available. surgeon at Sharp Memorial.13

Fall· 1993 tions remain static. A small but vocal who carry a card are the least likely to die minorities." For Native Americans, Ortho­ group of educators, medical ethicists and in a t raffic accident (most donor organs dox Jews and most Asian religions, disem­ physicians are now calling for financial in­ come from accident victims) because they boweling the body is sacrilege, he said. centives to help close the gap. One tend to be more careful drivers. Dr. Spi­ The ACLU su pports educational efforts to proposal is that families receive a flat fee tal argued that " pres umed consent" encourage donation. Walczak said the for donation. Another alternative is to pay would take the burden off families in a proposed law would ass ume that the state 18 the organ donor's burial expenses. time of crisis. He noted that presumed has control of every citizen's organs un­ Dr. Cohen of the Chicago-Kent Col­ consent has been successful in Europe, less the citizen acts to negate that control, lege of Law suggests establishing a type pointing specifically to Belgium where the a concept that courts have rejected in the of life-insurance system to reimburse an approach has Jed to a 140 percent increase past. 26 21 individual's beneficiaries after an organ in donations over the past five years. In an age where the waiting lists for donation. Such contracts, he says, would Not everyone agrees that consent donor organs is increasing at an acceler­ serve as an incentive for individuals to should be assumed. As the Kennedy In­ ated rate and the availability of organs re­ consider donating their organs. At the stitute of Ethics, Dr. Robert M. Veatch mains scarce, it is obvious that the future maintains that donating organs is a " quasi­ for organ transplant regulations is far from property rights issue" and one's right to settled. While controversy besets almost one's organs, like one's interest in real every aspect of the organ transplantation ... the voluntary property, should not be lost simply be­ iss ue, it is hard to discern the outlook for cause one does not affirm or assert the t he future. One thing that remains true is 2 donor method has right.2 Three models are useful in deal­ that the social, ethical and constitutional ing with this aspect of organ transplants: issues will continue to be argued. Only failed, ... Jess than the t hen-Communist bloc view, the Euro­ time w ill reveal the final outcome of the pean view, and the American view. Com­ tragic choices surrounding organ trans­ 15 percent of the munists and other dictatorships regard the plantation. body as property of the state once a LISA DICERBO, fo urth year evening public carries a person dies. Therefore, his organs can be donor card. disposed of in any manner that the state References wishes. This view, of course, is unaccept­ 1. The University of California at Los Angeles was second with 406, followed by the University of able in Jewish, Islamic and Western law. California at San Francisco with 347, Ohio State Several European countries, including Bel­ University with 324, and the University of Alaba­ same time, it would sidestep the criticism gium, Holland and France, have passed ma with 312. surrounding excessive paymerits for or­ 2. Mackenzie Carpenter, " Presumed" Donor Bill laws that allow taking organs for saving Aired, PITTSBURGH POST-GAZETTE, July 14, 1993, at gans by keeping the reimbursement at a I ives if the deceased had not signed a A10. nominal level such as $5,000 for any major statement, during his lifetime, objecting 3. Don Colburn, Governor Casey's Quick Double Transplant: How Did He Jump to the Top of the organ that is transplanted. "Everybody to such a procedure. Lastly there is the Waiting List? WASHINGTON POST, June 22, 1993, at makes money from transplantation except American view, which dictates that one's Z8. the person who delivers the most impor­ 4. Domestic News (CNN television broadcast, June organs cannot be removed without per­ 16, 1993). tant product, the organ," says Dr. Cohen. mission. 23 5. Rickie Windle, Waiting on Death for Another " I don't think this will solve the organ In July 1993, at a meeting of the Joint Cha nce at Life, AU STIN BUSINESS JOURNAL, July 5, 1993, at 1. shortage, but we could make great House-Senate Judiciary Committee of the 6. Colburn, supra, at Z8. progress."19 Pennsylvania legislature, testimony was 7. Id. The American Medical Association's given by witnesses urging approval of 8. Id. 9. Id. Council on Ethical and Judicial Affairs sup­ " presumed consent" legislation that 10. Penni Crabtree, Law Jeopardizes Transplants for ports proposals to pay donors' funeral ex­ would allow the automatic donation of or­ Foreigners, Hospitals' Fees, SAN DIEGO BUSINESS penses and has appointed a committee to gans for transplants in Pennsylvania un­ JOURNAL, July 19, 1993, at 1. 11 . Organ Donation Remained Flat in 1992, According study "future contracts" involving donor less the deceased individual had to AOPO Survey, TRANSPLANT NEWS, March 31 , organs. 20 previously indicated otherwise, or rela­ 1993. One recent proposal for increasing 24 12. Crabtree, supra, at 1. tives objected. If passed, the bill, spon­ 13. Id. organ donations would radically change so red by state Sen. Michael D ~wida , 14. Id. the norms of consent: under the plan, con­ D-Carrick, would be the first in the coun­ 15. Id. 16. Id. sent to donate is assumed unless an in­ try to create such a presumption for the 17. Nat Semple, Ending the Organ Grind; Transplants dividual specifically elects not to give his donation of such life-saving organs as Could be Quicker and Fairer, W ASHINGTON POST, organs after death. " Presumed consent" July 11, 1993, at C4. hearts, lungs and livers. It is believed 18. Prerna Mona Khanna, Scarcity of Organs for Trans­ was debated in an October 1991 article in that the measure will help ease the criti­ plant Sparks Move to Legalize Financial Incentives, the New England Journal of Medicine. Dr. cal shortage of donor organs in P.enn syl­ WALL STREET JOURNAL, September 8, 1992, at B1 . 19. Id. Aaron Spital of the University of Maryland vania.25 20. Richard A. Know, Profiteering is Found in Trans- argued that there is no lack of potential But Witold Walczak, execut~ve direc­ plant System, BOSTON GLOBE, June 24, 1993, at 3. donors, but a failure by physicians to turn tor of the Pittsburgh chapter of the Ameri­ 21 . Windle, supra, at 1. 22. Id. potential donors into actual donors. He can Civil Liberties Union (ACLU) has raised 23. Judy Seigel-ltzkovitch, Postmortem - Did Sorkoa maintained that the voluntary donor doubts about the bill's constitutionality. Doctors Do the Right Thing? JERUSALEM POST, June method has failed, noting that less than "It pays insufficient regard to the rights of 25, 1993. 24. Ca rpenter, supra, at A 10. 15 percent of the public carries a donor privacy and personal autonomy, (and) is 25. Id. card. He also noted that the 15 percent insensitive to the rights of many religious 26. Id.

Juris Judges Don Lab Coats: Supreme Court Adopts Rules for Expert Scientific Evidence

On June 28, 1993, the U.S. Supreme Court ruled in Daubert v. Merrell Dow Pharmaceutical Inc. that " general accep­ tance" of a scientific theory in the relevant field is no longer a precondition to admis­ sibility of expert scientific evidence.1 In Daubert, Petitioners, two minor children and their parents, alleged in their suit against Merrell Dow that the chil­ dren's serious birth defects had been caused by the mother's prenatal use of Bendectin, a prescription drug marketed by Merrell Dow. The district court grant­ ed summary judgment for Merrell Dow, giving much weight to the affidavit of an expert who testified for Merrell Dow. Upon reviewing the extensive published scientific literature on the subject, the dis­ trict court concluded that maternal use of Bendectin had not been shown to be a risk factor for human birth defects. Petitioners responded with their own conclusive evi­ dence through the testimony of eight other experts, who based their conclusion that Bendectin can cause birth defects on animal studies, chemical structure analy­ sis, and unpublished studies. The district court, however, deter­ mined that this evidence did not meet the applicable "general acceptance" standard for the admission of expert testimony. The court of appeals agreed and affirmed, cit­ ing Frye v. United States, 2 for the rule that Federal Rules of Evidence, should not be through cross-examination. expert opinion testimony based on a applied in federal trials." 4 Chief Justice William Rehnquist and scientific technique is inadmissible unless The FRE, especially Rule 702, assigns Justice John Paul Stevens concurred with the technique is " generally accepted" as trial judges the task of ensuring that an ex­ the majority's holding that the Frye rule reliable in the relevant scientific commu­ pert's testimony rests on a reliable foun­ is no longer good law. But their dissent nity. The Frye test originated in 1923 in a dation and also that the testimony is from the majority holding argues that the case involving the admissibility of test relevant. When faced with expert proof, majority should not have gone beyond its results from a precursor to a modern poly­ a trial judge must determine whether the ultimate conclusion when it stated that the graph. Because the lie detector test had expert's proffered testimony is based on FRE have supplanted the Frye rule. not gained scientific recognition, the U.S. scientific knowledge that will assist the tri­ In Daubert, Blackmun wrote that Court of Appeals for the District of Colum­ er of fact in understanding or determin­ nothing in the text of Rule 702 establish­ bia Circuit held that the results were in­ ing a fact in issue. The Court also stated es "general acceptance" as an absolute admissible.3 that traditional measures of judicial con­ prerequisite to admissibility. Further, "a The Supreme Court unanimously trol, including screening unqualified ex­ rigid general acceptance requirement held that the 70-year-old common law perts or irrelevant evidence and granting would be at odds with the liberal thrust Frye rule had been superseded by the summary judgement and directed verdicts of the rules and their goal of relaxing the more liberal federal rules of evidence where warranted, are adequate to contain traditional barriers to opinion testimony."5 ("FRE"). Indeed, Justice Harry Blackmun unreliable testimony. Further, the Court Moreover, Merrell Dow was unable maintained that "that austere standard, added that juries will have adequate op­ to convince the Court that the FRE some­ absent from and incompatible with the portunities to assess witness credibility how assimilated the Frye test. The Court

Fall• 1993 m emphasized that the permissive FRE make rulings; that it shields juries from any ten­ no mention of " general acceptance." The dency to treat novel scientific evidence as majority cautioned that the FRE do place Are doors being infallible; that it avoids complex, expen­ some limits on admissibility. Indeed, " the sive, and time consuming courtroom d ra­ trial judge must ensure that any and all opened to any mas; and that it insulates the adversary scientific testimony or evidence admitted system from novel evidence until a pool is not only relevant, but reliable."6 theory which sounds of experts is available to evaluate it in Additionally, the subject of an ex­ court.11 McCormick reports that most pert's testimony must be " scientific . . . 'reasonable' to a commentators agree that these objectives knowledge." The adjective "scientific" im­ trial judge? can be attained satisfactorily with " less plies a grounding in the methods and drastic constraints on the admissibility of procedures o f science. The word scientific evidence." 12 He encourages the " knowledge" connotes more than subjec­ use of the traditional standards of relevan­ tive belief or unsupported speculation. cy, now stated as the requirements under Also, " proposed testimony must be sup­ leave the further development of Daubert, and justifies this by stating that ported by appropriate validation-Le., this important area of the law to general scientific acceptance is a proper 'good grounds, ' based on what is future cases. 9 condition for taking judicial notice but is known." 7 In short, the requirement that not suitable for the admission of evidence. an expert's testimony pertain to "scientific Will the Court's ruling merely place Whether the formal adoption of this knowledge" establishes a standard of added burdens on trial courts? Those position by the Court further encumbers evidentiary reliability. Additionally, " Rule courts are already overwhelmed with the the taking of scientific evidence is now a 702's helpfulness standard requires a valid "battle of experts." But, at least in the past, matter for continued observation. It seems sc ientific connection to the pertinent in­ theories presented were being pre­ difficult to understand how it will not. quiry as a precondition to admissibility." 8 qualified by the scientific community cog­ When the scientific community debates a Ju st ice Rehnquist, with whom nizant of the questions under considera­ subject without conclusion, how can we Justice Stevens joined, concurring in part tion. Are the doors being opened to any expect the trial court and, in particular, the and dissenting in part, suggested that the theory which sounds " reasonable" to a tri­ juries to do so? majority opinion will raise more questions al judge? than it answers: And what of the burden placed on KEN M c KAY, fourth year evening I do not doubt the Rule 702 con­ the juries, which will now be forced to fides to the judge some weigh between abstract theories to deter­ References gatekeeping responsibility in mine merit as to weight of argument? 1. Daubert v. Merrell Dow Pharmaceutica l Inc., 113 deciding questions of the admis­ These issu_es as questions are not s. Ct. 2786 (1993) . new. There is considerable commentary 2. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). sibility of proffered expert tes­ 3. Id. at 1014. timony. But I do not think it on the merits of both, and the FRE had 4. Daubert at 2790. imposes on them either the ob­ been held to have superseded the com­ 5. Daubert at 2794. 10 6. Id. ligation or the authority to be­ mon law on at least one occasion. The 7. Id. come amateur scientists in order Daubert Court specifically cites FED. R. 8. Id. to perform that role. I think the EVID. 702, that speaks to the contested is­ 9. Daubert at 2800 (Rehnquist, C.J., concurring in part and dissenting in part). Court would be far better ad­ sue directly. 10. Bourjaily v. United States, 483 U.S. 171 (1987). vised in this case to decide only Proponents of the Frye test argue 11 . CHARLES T. M CCORMICK ET AL, M CCORMI CK ON that it assures uniformity in evidentiary EVIDENCE § 608 (3d ed . 1984). the questions presented, and to 12. Id.

The Cost of Signing the Dotted .Line

Recently the U.S. Supreme Court or appropriately corrected." Subsection whether a pleading or motion violates the announced amendments to the Federal (c)(1)(A). Thus, once the motion for sanc­ rule is viewed in the context of the litiga­ Rules of Civil Procedure.1 Among the rules tions is served, a litigator will have 21 days tion at the time of filing. Under the pro­ changed is Rule 112, which deals with to withdraw or correct alleged offenses in posed rule, sanctions may not only be sanctions levied following the improper the document without sanctions being im­ warranted for documents found to be im­ filing of pleadings, motions and other posed. Currently, if a litigator believes a proper at the time of their filing; but also papers with Federal District Courts. pleading, motion or other paper violates may extend to all meritless allegations con­ The first change, referred to as the Rule 11, a motion may be filed with the tained in any filing. " safe harbor" provision, states that a Rule court for an appropriate sanction against The third important change is the 11 motion for sanctions "shall not be filed "the person who signed it, a representa­ "permissive imposition of sanctions," with or presented to the court unless, tive party or both." which gives the judge discretion in impos­ within 21 days after service of the motion The second important change is the ing sanctions as opposed to the current . .. the challenged paper . . . is withdrawn "continuing duty" obligation. The issue of rule, which requires the court to impose

Juris sanctions when a violation of the rule is efficiency and deterrence. Thus, abuse of ings does not relieve the party who signs found. discretion will occur only if the appellate the document from conducting inquiry The fourth and most important, court determines that the district court into the facts and law in order to be satis­ change initiates a shift away from sanc­ was clearly in error. fied that the document is well grounded tions consisting of an award of attorneys' The rationale is that the district court • • • " 7 In formulating the standard, the fees. Subsection (c)(2) of the proposals em­ is in the best position to determine Court in Business Guide stated" . . . stan­ phasize the deterrence goals of the rule whether a sanction is warranted in light dards for ... determining whether the by limiting sa nctions to what is sufficient of local practices. Additionally, deference party is subject to Rule 11 sanctions is one to deter repetition of such conduct. The to the district court's determination em­ of reasonableness under the circum­ sanction must consist of or include orders phasizes and strengthens the district court stances . . . the rule states unambiguous­ such as nonmonetary penalties, payment in its attempts to control litigants and free ly that any signer who does not conduct of penalties, or payment of some or all appellate courts from the duty of reevalu­ reasonable inquiry will face sanctions."8 reasonable attorneys' fees and expenses ating evidence as well as to discourage liti­ Thus both lawyer and client are held to an stemming from the violation. Subsection gants from pursuing marginal appeals. objective standard. (c)(2)(A) of the proposal states that mone­ Further, the decision to sanction must be The present Rule 11 states " ... [i]f tary sanctions may not be awarded against influenced by the factual nature of Rule a pleading, motion, or other paper is a represented party for a violation of Sub­ 11 determinations, as well as the district signed in violation of this rule, the court section (b)(2). This ensures that the client court's greater familiarity with all facets of ... shall impose ... sanction" (emphasis will be sheltered from monetary sanction a case. Given the rationale for the " abuse­ added). At least one circuit, the District of when his or her counsel advances theories of-discretion" standard, as well as the na­ Columbia Circuit, has held that failure to not supported by existing law or by ture of the proposed Rule 11 changes, it impose sanctions constitutes error.9 In reasonable inference from existing law. is difficult to see how the proposed Pelletier v. Zweife!, 1° the Eleventh Circuit However, this apparently does not protect changes could result in a reconsideration Court of Appeals advanced the mandato­ the party from the power of the court to of the present standard of review. ry nature of the imposition of sanctions to impose sanctions or remedial orders that Cooter imposed a duty to conduct include the requirement that "[a] district may have collateral financial conse­ a "reasonable inquiry" to ensure that court . . . must impose sanctions sua quences such as dismissal of a claim, preclusion of a defense or preparation of amended pleadings. The fifth proposed change is the ad­ dition of Subsection (c)(1)(A), which im­ poses joint liability on firms for Rule 11 violations committed by partners , associ­ ates and employees and overrules the re­ cent U.S . Supreme Court decision in Pavelic & Laflore v. Marvel Entertainment Group, 3 which held that joint liability for the firm could not be predicated on a Rule 11 violation by its agents. The sixth significant change man­ dates that no Rule 11 consideration will ap­ ply to sanctions related to discovery. Thus, the litigator will have to examine the differ­ ent sanctioning provisions of each rule to papers filed in court are well-grounded in sponte whenever it finds a complaint to determine possible application, as well as fact, legally tenable and not interposed for be frivolous." Although the Pelletier case the relevant case law in the determination improper purposes. The standard is, clearly had an unusual factual basis that of standards as well. " reasonable inquiry under the circum­ may limit the application of the holding, The U.S. Supreme Court in Cooter stances." An objective rather than a sub­ the case clearly stands for the proposition & Gell v. Hartmarx Corp. stated that the jective test has been applied by the court. that a district court should not limit its purpose of Rule 11 is to deter baseless fil­ The only impact that the proposed Rule consideration of Rule 11 sanctions to is­ ings in the district courts and streamline 11 changes will have in the application will sues and arguments raised. In Pelletier, the administration and procedure of fed­ be that an attorney filing a document will although it appears that a district must im­ eral courts.4 have a second opportunity to make in­ pose sanctions only when it has found the The question remains whether the quiries under the "safe harbor" provision complaint to be frivolous, a full reading proposed changes will modify the exist­ of Subsection (c)(1)(A) prior to the sanc­ of the opinion reveals that the rationale ing standards for review to be applied to tioning. is not limited to a frivolous complaint. determine the propriety of sanctions for The proposed standards for dealing One proposed change under sanc­ baseless filings as they relate to both law­ with abuse of Rule 11 were addressed by tion to Rule 11 provides that "[i]f, after'no­ yers and clients. In Cooter, the Supreme the Supreme Court in Business Guides, tice and a reasonable opportunity to be Court held that an abuse-of-discretion Inc. v. Chromatic Communications Enter­ respond, the court determines that sub­ standard should be applied in reviewing prises, lnc.,.6 The Court held that "the fact division (b) has been violated, the court all aspects of a district court's Rule 11 that ... a party represented by council is may .. . impose an appropriate sanction determination5 based on policy goals of not required to sign most papers or plead- upon the attorneys ... that have violated

Fall• 1993 subdivision (b) or are responsible for the Under the existing Rule 11, the issue Another important area relates to in­ violation."11 Given the prior interpretation of whether a pleading or motion is in vio­ dividuals and other entities against whom of the word "shall", a clear implication has lation of the rule is viewed in terms of the Rule 11 sanctions may be awarded. Clear­ now been raised by use of the word "may" litigation at the moment of filing. The is­ ly, offending law firms and not just law­ in the proposal that sanctions no longer sue has been raised as to whether a con­ yers signing documents will now be liable are mandatory. The related issue of sanc­ tinuing obligation exists to conform for sanctions. Subsection (c)(1)(A) of the tions via a sua sponte motion has been already filed pleadings to new factual and proposed Rule states that a law firm will clarified by the proposed changes as well. legal circumstances. In Corporation of the be jointly liable for violations committed Subsection (c)(1)(B) states," . . . On its own Presiding Bishop of the Church of Jesus by its partners, associates and employees. initiative, the court may enter an order Christ of Latter-Day Saints v. Associated This overturns the Supreme Court's hold­ describing the specific conduct that ap­ Contractors, lnc., 15 the Eleventh Circuit ing in the recently decided case of Pavel­ pears to violate subdivision (b) and direct­ held that "Rule 11 did not impose a con­ ic & LeF/ore v. Marve/ Entertainment ing an attorney .. . to show cause why it tinuing obligation on the [plaintiff] to Group,18 which held that Rule 11 sanctions has not violated subdivision (b) . . . "Sub­ amend its complaint, at least if the com­ may be imposed only upon the attorney section (c)(2)(B) of the proposed changes plaint was reasonably interposed in the who signs the document and not on that further limits sanctions imposed sua first place."16 The rationale was that a "dis­ attorney's law firm. Previously, courts had sponte, "monetary sanctions may not be trict court must focus on what was awarded Rule 11 sanctions against an at­ awarded on the court's initiative unless reasonable for an attorney to believe at the torney as well as the attorney's law firm. the court issues its order to show cause time the pleadings were filed, not on what The decision was clearly based upon a before a voluntary dismissal or settlement the court later finds to be the case."17 literal reading of present Rule 11, "Every of the claims made by or against the party The change found in Subsection pleading, motion, and other paper of a which is, or whose attorneys are, to be (b)(3) of the proposed Rule 11 states party represented by an attorney shall be sanctioned." "(b) . ..[b]y presenting to the court . . . a signed by at least one attorney of record Additionally there exist at least two pleading, written motion, or other paper, in the attorney's individual name." situations where the U.S. Supreme Court In short, the proposed changes to has ruled concerning application of Rule Rule 11 are important becuse of the sanc­ 11 sanctions. The first instance involves tions that can be imposed and because of sanctions for a frivolous appeal of a dis­ the joint liability the Rule imposes upon trict court order to a circuit court. The firms and partners. Supreme Court has ruled that Appellate Rule 38, not Rule 11, should serve as the Clearly, offending J.W. BONIE, Alumnus L'78 basis for sanctions. The Court noted, that Civil Rule 11, permitting sanctions for fil­ Jaw firms and not ing frivolous papers, and Appellate Rule just lawyers signing References 38, permitting sanctions for filing a 1. 61 . U. S. L. W. 40 d108, "The Fed e ral Rules o f Civil Procedure for the United States District Co urts be, frivolous appeal, are better read together documents will now and they hereby are, amended by including the re­ as allowing expenses incurred on appeal in amendme nts to Civil Rules 1, 4, 5, 11 , 12, 15, to be shifted onto appellants only when 16, 26, 28, 29, 30, 31 , 32, 33, 34, 35, 37, 38, 50, 52, be liable for 53, 54, 58, 71A, 72, 73, 74, 75, and 76, and new Rule caused by a frivolous appeal; not merely 4.1, and abrogation of Fo rm 16-A, and ame nd­ because Rule 11 sanctions upheld on ap­ sanctions. ments to Forms 2, 33, 34, and 34A, and new Fo rms peal can ultimately be traced to baseless 1A, 18, and 35." 2. FED. R. EVID. 11 . filing in district court.12 3. 493 U.S. 120,(1989). Secondly, the Supreme Court has 4. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990). indicated that Rule 11 sanctions are avail­ 5. Id. able even if a lawyer voluntarily withdraws 6. Business Guides, Inc. v. Chromatic Communica- a complaint under the Federal Rules per­ an attorney ... is certifying that to the best tions Enterprises, Inc., 111 S. Ct. 992 (1991). 7. Id. mitting voluntary withdrawal before there of the person's knowledge, information, 8. Id. are significant developments in the case. and belief, formed after an inquiry 9. Westmoreland v. CBS, Inc., 770 F.2d 1168, 11 74-75 The Court noted, " Because Rule 11 sanc­ reasonable under the circumstances . .. (3) (D.C. Cir. 1985). 10. Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991 ). tion does not signify a district court's as­ the allegations and other factual conten­ 11 . FED. R. EVID. 11 (c). (emphasis added). sessment of the legal merits of complaint, tions have evidentiary support or . .. are 12. Cooter & Gell, 496 U.S. at 393. 13. Id. at 397. imposition ... does not deprive plaintiff likely to have evidentiary support after a 14. Willy v. Coastal Corp, 112 S.Ct. 1076 (1992). of his or her rights under rule permitting reasonable opportunity for further inves­ 15. Corporation of the Presiding Bishop of the Church dismissal . . . " 13 Neither of these two hold­ tigation or discovery; and (4) the denials of Jesus Christ of Latter-Day Saints v. Associated Contractors, Inc., 877 F.2d 938 (11th Cir. 1989) reh 'g ings will be disturbed by any of the pro­ of factual contentions are warranted on den., 888 F.2d 1398 (1989), cert. den., 110 S. Ct. 1133 posed changes to Rule 11. the evidence or, are reasonably based on (1990). Lastly, the Supreme Court in Willy a lack of information of belief." Thus, un­ 16. Id. at 943. 17. Id. at 941 . 14 v. Coastal Corp, held that a district court der the proposal, sanctions are not only 18. Pave/ic & Leflore v. Marvel Entertainment Group, has the authority to impose Rule 11 sanc­ warranted for improper filings which are 493 U.S. 120 (1989). tions even though it lacks subject matter evaluated at the time of the filing, but may jurisdiction to rule on the merits of the also expand to cover all meritless allega­ case. tions contained in any filing.

Juris at the side bar

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An East coast zoological park now admits lawyers to its shark exhibit free of charge; TV commercials bashing lawyers have replaced "Tastes Great-Less Filling"; and there seems to be a new FCC regulation mandating that late-night talk show hosts put at least one lawyer joke in their monologues. Here are some new lawyer-bashing, money making gimmicks you may not have seen:

* An upcoming Lifestyles of the Rich and Famous episode focuses on former tax attorneys who are waiting out statutes of limitations on yachts in the Bahamas.

Insurance companies are sponsoring Tasseled Loafer day at the ballpark.

* Hollywood will be unveiling Arnold Schwarzenegger's latest movie The Litigator Terminator.

* General Foods plans to market hollowed-out lawyers for use as life-sized Pez dispensers.

* The 80s barroom fad of midget tossing has been replaced by the attorney toss.

Hoping to put a shine on the profession's image, the ABA plans a massive public relations blitz base9 on the slogan: "When Attorneys Are Outlawed Only Outlaws Will Have Attorneys.

C.J . RAPP, Alumnus L'93

Fall• 1993 Proving Workplace Job Bias After Hicks:

The startling increase in the number the 1992-1993 term, and another in a line resolving claims of intentional employ­ of employment discrimination suits filed of technical cases that define what a plain­ ment discrimination in disparate treat­ in recent years makes employment relat­ tiff must do to prove employment dis­ ment cases brought under Title Vll.5 The ed litigation one of the fastest growing crimination, the High Court re-empha­ elements of proof which the plaintiff must areas of civil practice. According to a study sized, 5-4, in St. Mary's Honor Center v. meet, as well as the allocation of the bur­ completed by the Federal Courts Study Hicks, 4 that the burden of proof in em­ den of production that must follow, were Committee, the number of employment ployment discrimination cases sq uarely first described in the Court's 1973 holding discrimination cases filed in federal courts rests on the shoulders of the plaintiff. The in McDonnell Douglas Corp. v. Green, 6 increased from 336 in 1970 to 7,613 in court held that even if an employer pro­ and were subsequently extended by Texas 1989-an increase of 2,166 percent, while vides a dishonest answer in court about Dept. of Community Affairs v. Burdine/ during that same period all other civil liti­ why an employee was treated less favorably and U.S. Postal Service Board of Governors gation increased by 125 percent.1 With the than others, that alone does not entitle the v. Aikens.6 In McDonnell Douglas, the continued recessionary economy, and its employee to victory. Despite the employ­ Supreme Court established a " three-step associated downsizings, consolidations, er's false justifications for the adverse em­ process" for pursuing a case of intentional reductions in force and emergence of the ployment decision, the employee must discrimination: 1) the plaintiff must estab­ "new" corporate philosophy of "doing still prove that there was intentional dis­ lish a prima facie case (i.e., the case on its more with fewer people," the trend in crimination based on race, gender, religion face appears to involve intentional dis­ these statistics is sure to continue. And as or national origin, the majority sai d. crimination and the complainant will win very recent evidence of this trend, the if there is no contradictory evidence); 2) Equal Employment Opportunity Com­ Proving Employment Discrimination the employer must articulate a legitimate mission projects a total of 86,000 dis­ The Hicks decision essentially clari­ non-discriminatory reason for the deci­ c rimination charges for fiscal year fied the burden of proof framework for sion; and 3) the plaintiff must demonstrate 1993-which would be a rec- that the reason given was not ord high in the agency's Impact on Employment litigation a credible one-that it was a So what do legal practitioners have to say about Hicks? 28-year history. 2 "pretext" for discrimination­ " Hicks is clearly a victory for employers, who have become in­ Adding fuel to the fire, or, in other words, that the creasingly susceptible to unfavorable results in employment liti­ recent amendments to Title justifications offered by the gation in recent years, especially with the advent of the Civil Rights VII of the Civil Rights Act of employer for the decision did Act of 1991," says Lynn C. Outwater, Managing Partner of the Pitts­ 1964,3 through passage of the not describe the actual or true burgh office of Jackson, Lewis, Schnitzler & Krupman, a national Civil Rights Act of 1991, now reasons for the decision.9 law firm that represents management exclusively in the area of gives plaintiffs access to man­ Under the first step, the labor, employment and benefits law. "But it is still too early to datory jury trials as well as plaintiff must first establish, tell if the decision will result in fewer suits against employers," compensatory and punitive by a preponderance of the evi­ she sai d. "If anything, it will probably cause plaintiffs' attorneys damages as high as $300,000. dence, a " prima facie" case of to look for more proof before agreeing to take a bias case against This is a new threat to employ­ discrimination by showing their employers." ers; because with the higher that: (i) the employee belongs "From a practical standpoint, Hicks makes it more difficult stakes involved and increased to a protected class; (ii) the for a plaintiff to prove that the reasons articulated by an employ­ chances for successful law­ employee was qualified for er were a pretext for unlawful discrimination," commented Joe suits, employees will be far the position; (iii) the employee C. Ashworth, senior litigation partner at Jackson Lewis. "Prior to less likely to settle their em­ was adversely affected despite Hicks, many courts have said that an instruction would be per­ ployment disputes out of being qualified for the posi­ mitted that says to the jury that 'if the plaintiff disproves the rea­ court. However, it may now tion; and (iv) that the posi tion sons advanced by the employer then you can draw an inference be a bit more difficult for dis­ remained open and the em­ that the reasons articulated by the employer are merely a pretext gruntled employees with ployer continued to seek ap­ for unlawful discrimination.' " claims of job bias to win their plicants with the plaintiff's "Hicks now makes a significant change that requires courts cases against their employers qualifications.10 Under the to instruct the jury that if the employer's reasons for the employ­ thanks to a major employ­ McDonnell Douglas scheme, ment decision are disproved by the plaintiff, that will not, in and ment rights decision handed establishing the prima facie of itself, support a conclusion that the employer's action was moti­ down by the U.S. Supreme case creates a presumption vated by unlawful discrimination. The plaintiff must still prove that Court on June 25, 1993. that the employer unlawfully nevertheless, an unlawful reason motivated the employer to in­ In clearly the most im­ discriminated against the em­ tentionally discriminate against the employee," Ashworth said portant civil rights case of ployee. This presumption

Juris Supreme Court Asks, "Where Is Your Smoking Gun?"

places upon the defendant the burden of charge, namely the severity and frequen­ ployer's false reasons for an adverse em­ producing an explanation to rebut the pri­ cy of the rules infractions by Hicks. The ployment decision, combined with other ma facie case-i.e., the burden of produc­ U.S. District Court for the Eastern District evidence, may well result in a plaintiff's ing evidence that the adverse employment of Missouri, in a full bench trial, found that prevailing in court, but that an employer actions were taken " for a legitimate, non­ the reasons the employer gave were not may be dishonest or even innocently in­ discriminatory reason." The defendant the real reasons for Hicks's demotion and correct about the reasons for its actions must at this point clearly set forth, through discharge. It concluded that Hicks was the without necessarily having discriminated admissible evidence, reasons for its ac­ only supervisor disciplined for violations against the employee. tions which, if believed by the trier of fact, committed by his subordinates; that si mi­ Justice Scalia rejected the Eighth Cir­ would support a finding that unlawful dis­ lar and even more serious violations com­ cuit's reasoning and said that the employ­ crimination was not the cause of the em­ mitted by Hicks's co-workers were either er ce rtainly placed itself in a better ployment action. disregarded or treated more leniently; and position by producing evidence (whether Burdine and Aikens emphasize that that his immediate supervisor manufac­ persuasive or not) of nondiscriminatory once an employer articulates a legitimate, tured the final verbal confrontation in ord­ reasons for the action than had it re­ nondisc riminatory reason for the er to provoke Hicks into threatening him. mained si lent, because it sustained the challenged action, the plaintiff must then Nonetheless, the district court judge held burden of production to rebut the prima be given a fair opportunity to show that that Hicks failed to carry his ultimate bur­ facie case. He points out that the deter­ the employer's justification is merely a den of proving that his race was the de­ mination that the employer has met its " pretext" for intentional discrimination. termining factor in the employer's burden of production, and has thus rebut­ The issue in Hicks was the question left decisi on to demote and dismiss him. In ted any legal presumption of intentional unanswered by Aikens: whether the plain­ short, the court concluded that although discrimination, should involve no credibil­ tiff must prevail if he or she proves that Hicks had proven the existence of a cru­ ity assessment of the employer's articulat­ the employer's proffered reasons are not sade to terminate him, he had not proven ed reasons. The presumption merely the " real reason" for the employment de­ that the crusade was ra cially rather than fulfills the role of forcing the defendant cision. personally motivated. to come forward with some response, The Eighth Circuit reversed this de­ whatever its persuasive effect. Justice cision, on the grounds that "[o]nce [Hicks] Scalia makes it clear that there should be What Happened in Hicks proved all of [employers'] proffered rea­ no credibility assessment of these reasons The respondent Melvin Hicks, a sons for the adverse employment actions because the burden of production deter­ black man, had been employed for six to be pretextual, [Hicks] was entitled to mination precedes the credibility assess­ years by St. Mary's Honor Center, first as judgment as a matter of law."11 The ap­ ment phase. He said that once the a corrections officer and then later as shift peals court reasoned that " [b]ecause all of defendant succeeds in carrying its burden commander. Hicks enjoyed a satisfactory defendant's proffered reasons were dis­ of production, then the McDonnell Doug­ employment record until an administra­ credited, ... defendants were in no bet­ las framework, with its presumptions and tive shake-up left him with a new super­ ter position than if they had remained burdens, is no longer relevant and that to visor and superintendent. He then be­ silent, offering no rebuttal to an estab­ resurrect it later "flies in the face of our came the subject of repeated, and lished inference that they had unlawfully holding in Burdine, that to rebut the increasingly severe, disciplinary actions discriminated against [Hicks] on the basis presumption the defendant need not per­ from his superiors including disciplinary of his race."12 suade the court that it was actually moti­ action for the rules violations of his subor­ vated by the proffered reasons. " 1 3 dinates. He was then removed from his su­ The Supreme Court's Decision and Analysis After the employer rebuts the prima pervisory position and was eventually fired The U.S. Supreme Court reversed facie case, the trier of fact at this point for threatening his supervisor during a the Eighth Circuit's judgment and essen­ must proceed directly to the ultimate heated exchange of words. Hicks then tially agreed with the view of the district question: whether the plaintiff has proven filed a complaint under Title VII alleging court, that "something more" was re­ that the employer intentionally discrimi­ that his demotion and termination were quired of the plaintiff than merely show­ nated against him. While the Court said based on his race. ing pretext in order to prevail (the rejection of the employer's proffered rea­ At trial, Hicks made out a prima facie " pretext-plus" requirement). The majori­ sons will permit the fact finder to infer the case under the McDonnell Douglas stan­ ty opinion, authored by Justice Scalia and ultimate question of intentional discrimi­ dard. In response, the employer in­ joined by Chief Justice Rehnquist and nation and that upon rejection of the rea­ troduced evidence of two legitimate, Justices O 'Connor, Kennedy and Thomas, sons no additional proof of discrimination nondiscriminatory reasons for his dis- asserted that the combination of an em- is actually required, Justice Scalia said that

Fall• 1993 the Court of Appeals was simply wrong in disagreement provides insight into what prove the employer's proffered reason s. holding that rejection of the proffered rea­ exactly the Hicks court meant about the Unfortunately, the majority provides no sons compels judgment for the plaintiff. plaintiff's burden of proof. Central to this meaningful guidance as to how a plaintiff He explained that this approach, "[d]is­ iss ue is a statement made in Burdine must now actually prove intentional work­ regards the fundamental principle of [Fed­ which follows the Court's delineation that place discrimination. eral Rules of Evidence] Rule 301 that a the plaintiff must have the opportunity to Justice Souter's argument is compel­ show that the employer's reasons for the ling from the standpoint of justice, fairness adverse decision were pretextual. The Bur­ and practicality. His argument emphasizes dine court then went on to say that the the " human dynamics" involved in the plaintiff's burden "[n]ow merges with the employment relationship, and the practi­ ultimate burden of persuading the court cal difficulties a plaintiff has in proving a that she has been the victim of intention­ case. al discrimination."17 But determining which argument is To say that the The majority clearly viewed this better really depends on the reader's view­ company . .. or even statement as meaning that the plaintiff still point of the employment relationship. If continues to carry the ultimate burden of you are a firm believer in the "at-will" em­ the employee proving intentional discrimination, even ployment doctrine, then, like Justice Sca­ though the employer's reasons were lia, you really don't see the contract of himself ... pretextual. The majority said proving employment as containing an implicit pretext may be of help in showing the fact promise of fairness. Your concern is that becomes a liar and a finder that the real reasons for the action the employer should not discriminate for were discriminatory, but pretextual rea­ unlawful reasons, and that it may be com­ perjurer when the sons alone should not be determinative. pletely "acceptable" to discriminate, as The dissenting justices viewed the long as the reasons (like the personal ani­ testimony is not majority as trying to rewrite Burdine, and mosity described in Hicks) are not pro­ believed is nothing Justice Souter, in emphasizing the unfair­ hibited by statute. On the other hand, if ness of it all, said that the employer should you adhere to the belief that an employee short of absurd. be bound by its choice of factual explana­ should not be terminated except for " just tion. He argued that if this was not the cause," a view Justice Souter seems to fol­ case and the fact finder could rely on area­ low, fairness becomes an important con­ son not even put forward, then it would sideration when examining any employee be unfair and utterly impractical to saddle discharge. This belief sees Title VII in a the victims of discrimination with the bur­ much broader context, as summed up in presumption does not shift the burden of den of either producing direct evidence the final sentence of the dissent when proof, and ignores our repeated admoni­ of discriminatory intent, or eliminating the Justice Souter says that he sees "[n]o rea­ tion that the Title VII plaintiff at all times entire universe of possible nondiscrimina­ son why Title VII interpretation should be bears the ultimate burden of persua­ tory reasons that the fact finder might find driven by concern for employers who are sion."14 lurking in the record. His argument too ashamed to be honest in court, at the centers on the need for a practical proce­ expense of victims of discrimination who Scalia and Souter Clash dure for addressing what Burdine calls in­ do not happen to have direct evidence of The decision sparked a volley of crit­ direct proof, stating that such a procedure discriminatory intent." 20 ical words between Justice Scalia and is "crucial to the success of most Title VII Is the outcry following the Hicks de­ Justice Souter, author of the dissent, prob­ claims, for the simple reason that employ­ cision really justified? Circumstantial evi­ ably because both sides seemed so en­ ers who discriminate are not likely to an­ dence of job bias may certainly suggest trenched in their conviction that their own nounce their discriminatory motive."18 racial or other types of unlawful discrimi­ reading of the prior cases was so obviously nation, but it clearly does not establish it correct. A frustrated Justice Souter, in Which is the Better Argument? conclusively. To assign guilt to an employ­ describing the majority opinion, said that Justice Scalia at first seems to have er simply because the reasons for the em­ he knew of " [n]o other scheme for struc­ the better argument, particularly when he ployment decision are not believed by the turing a legal action that, on its own terms, points out that merging proof of pretext jury without retaining the plaintiff's ulti­ requires a party to lie in order to prevail."15 with proof of actual discrimination would mate burden of proving discriminatory in­ Justice Scalia, in a cutting retort, said of be a merger in which "[t]he little fish swal­ tent by the employer makes little sense the dissent, "To say that the company ... lows the big one."19 He supports this by and goes against the fundamental princi­ or even the testifying employee himself on arguing that the merger statement in Bur­ ples of our rules of civil practice that a behalf of the employer, becomes a liar and dine is dictum, and that it contradicts presumption does not shift the ultimate a perjurer when the testimony is not be­ McDonnell Douglas and its progeny in burden of proof. The Supreme Court sim­ lieved, is nothing short of absurd."16 that the Court has never said that all the ply recognizes in Hicks that it does not An understanding of the core of this plaintiff needed to do to prevail was to dis- have the authority to impose liability on

Juris an employer for alleged disc riminatory decide to hold an evidentiary hearing to Court has had in articulating a truly work­ employment practices unless t he fact permit the parties to present additional able framework for determining just what finder determines that the employer has, evidence on the issue of personal animos­ an employee really needs to do to win an in fact, unlawfully discriminated. ity. If Hicks can demonstrate that his em­ employment discrimination case. If Melvin Hicks was fired because of ployer's decisions agai nst him were not the personal rather than racial animus of motivated by personal animosity or if so, STEVE WIRTH, third year day his former employer, then he was still a that the personal animosity was itself ra­ victim of injustice. But Hicks was specific cially motivated, then he should prevail in his Title VII claims. References in his charge that he was a victim of racial 1. Federal Courts Study Committee Report, cited in discrimination by his employer. Because While the Hicks decision could lead 5 Daily Labor Report (BNA), Jan . 8, 1990, at A-3. of the specificity in his allegations, the evi­ to a greater emphasis on the need for 2. News Briefs, 20 Pension and Benefits Rep. (BNA) No. 33, at 1780 (Aug. 16, 1993). dence of the guilt of his employer on the direct evidence for a plaintiff to prevail, at 3. Title VI I renders it unlawful " for an employer . . . issue of racial discrimination should be a minimum the decision will place a great­ to fa il or refu se to hire or to discharge any in­ conclusi ve. To require less would be an er burden on district court judges in evalu­ dividual, or otherwise to discriminate against any individual with res pect to his compensation, injustice to his employer. ating cases at the summary judgment terms, conditions, or privileges of employment, But all is not lost for Melvin Hicks. phase. Furthermore, the decision will because of such individual's race, color, religion, definitely require judges to take a more sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) . Because neither parties nor the district 4. St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 court had a "full and fair opportunity" to active role to ensure that what juries do (1993) . apply the Supreme Court's newly clarified is consistent with the law. The aftermath 5. " Disparate treatment" is one of two concepts that and debate over whether the Hicks deci­ have emerged as a result of Supreme Court deci­ analytical scheme to the case, the case has sions involving employer lia bility for discrimina­ been remanded for further considera­ sion actually gives judges proper guidance tory employment procedures. In a disparate tion.23 In particular, the district court may underscores the difficulty the Supreme treatment case, an employer is charged with in­ tentionally treating some people (usually an in­ dividual or small group of people similarly situated) less favorably than others becau se they are a member of a group protected by the civil rights laws. O n the other hand, a " disparate im­ pact" case involves facially neutral employment procedures that have an adverse effect on the em­ The Debate Following ployment opportunities of the protected group as a whole. Before the ink was dry on the Hicks opinion, employee advocacy groups were 6. McDonnell Douglas Corp. v. Green, 411 U.S. 792 labeling the decision as "pro-management" and unfair to employees, while manage­ (1973). ment attorneys were commenting that the decision was fair, given recent employee 7. Texas Dept. of Community Affa irs v. Burdine, 450 U.S. 248 (1981). gains in the legislative arena. "Hicks is clearly a victory for employers, who have 8. U. S. Postal Service Board of Govern ors v. Aikens, become increasingly susceptible to unfavorable results in employment litigation 460 U.S. 711 (1983). in recent years, especially with the advent of the Civil Rights Act of 1991," says Lynn 9. The same process, as well as the Hicks decision, applies to age discrimination cases brought un­ C. Outwater, Managing Partner of the Pittsburgh office of Jackson, Lewis, Schnit­ der the Age Discrimination in Employment Act zler & Krupman, a national law firm that represents management exclusively in the (ADEA). area of labor, employment and benefits law. " But it is still too early to tell if the 10. McDonnell Douglas, 411 U.S. at 802-05. 11 . Hicks v. St. Mary's Honor Center, 970 F.2d 487, 492 decision will result in fewer suits against employers," she said. " If anything, it will (8th Cir. 1992). probably cause plaintiffs' attorneys to look for more proof before agreeing to take 12. Id. 13. Hicks, 113 S. Ct. at 2749. a bias case against their employers." 14. Id. Civil rights advocates have called the decision "a giant step backward" be­ 15. Id. at 2764. cause they feel that since discrimination is far more subtle today than in the past, 16. Id. at 2754. 17. Burdine, 450 U.S. at 256. then it is going to be very difficult for a plaintiff to get evidence of intentional dis­ 18. Hicks, 113 S. Ct. at 2762. criminatory practices.21 Some employee advocates, like Mario Moreno, regional 19. Id. at 2752. counsel for the Mexican American Legal Defense Fund, say that the " pretext-plus" 20. Id. at 2766. 21. Legislation to Overturn, Debate Follow Hicks De­ requirement "can only mean something along the lines of a smoking gun" due to cision, Fair Employment Practices New sletter the difficulty employees will have in finding direct evidence.22 (BNA), July 19, 1993. 22. Id. And these concerns have not gone unheard. Congress has already taken the 23. Hicks v. St. Mary's Honor Center, No. 91 -1571, 1993 first steps to overturn the Hicks decision. On July 28, 1993, Rep. David Mann (D­ WL 328901 (8th Cir., Aug. 16, 1993). Ohio) introduced legislation to reverse the decision. Under Mann's bill, HR 2787, a Title VII plaintiff complaining of disparate treatment would prevail if he or she establishes a prima facie case of an unlawful employment practice, and the defen­ dant employer either fails to rebut that evidence or the plaintiff is able to show that each of the purported non-discriminatory reasons for the employment deci­ sion is not true. The bill has been referred to the House Education and Labor Com­ mittee. Sen . Howard Metzenbaum (D-Ohio) has also pledged to introduce similar legislation in the Senate.

Fall· 1993 Imagine that you had to live every­ day of your life continuously glancing over your shoulder, carefully screening each of your telephone calls, repetitively checking the images in your rear-view mirror, selec­ tively choosing each public place you enter, and while there, maintaining a con­ stant awareness of each person around you. For some people this compulsive be­ havior has become a part of their lives be­ cause they suffer from mental infirmities. However, for thousands of people, of vary­ ing ages, races and backgrounds, this type of behavior is a necessary reality. As a mat­ ter of fact, until House Bill 2346 was enact­ ed as Act 28of1993 and approved on June 28, 1993, these " defensive measures" were the only real protection available for vic­ tims of stalkers in Pennsylvania. Although stalking, and its often un­ pleasant consequences, has been a prob­ lem in the United States for years, it did not receive national attention until 1989 when actress Rebecca Schaeffer was fatally shot outside her home in California by a disgruntled fan . Subsequent to this trag­ ic event, five women, also residing in clusions to these tales of harassment. In that person intentionally threatens, at­ California were murdered by former hus­ its amended form, House Bill 2346 clearly tempts or makes physical contact with bands or boyfriends. California recog­ defines the terms associated with stalking, another person. An individual is likewise nized that something needed to be done, upgrades the penalties for stalking and its guilty of harassment if he follows another and its legislature responded in 1990 by related offenses and expands the scope person, or engages in repetitive conduct passing the first anti-stalking legislation. and enforcement of victim/witness protec­ that serves no legitimate purpose and seri­ Similar stories prompted the legislatures tive orders. ously annoys the object of such action. It of Kentucky, Virginia, Florida, West Vir­ The Pennsylvania legislature has is important to note that the current legis­ ginia, Ohio, Wisconsin, Maryland, and concluded that the crime of stalking has lation has made a provision to protect most recently, Pennsylvania to pass anti­ been committed if, while intending to those wrongly accused of the above­ stalking laws. In all, a total of 28 states have place a person in reasonable fear of bodi­ mentioned crimes. Specifically, the legis­ conceded that stalking is a serious ly injury, or causing that individual to lation establishes that anyone who intends problem that requires urgent attention, suffer substantial emotional distress, a per­ to implicate a person and knowingly gives and they have therefore, either enacted or son engages in a course of conduct or false information to a law enforcement are considering the enactment of anti­ repeatedly commits acts toward another official is guilty of an offense.2 stalking laws.1 individual. Included in these "acts" is the Any Pennsylvania court with juris­ Numerous accounts of stalking and following of that person without proper diction over criminal matters may, at its harassment, that have ended in homicide authority to do so. Commission of such an discretion and subsequent to a hearing on have been reported in the Pennsylvania act is considered a misdemeanor of the the matter, issue protective orders. Such news in the past several years. Law en­ first degree; however, if the commission orders may include instructions prohibit­ forcement officials attributed these homi­ is a second or subsequent offense, or is ing any activities by the accused or a wit­ cides to a lack of stringent statutory an action subsequent to a conviction for ness related to harassment and/or stalking. authority permitting their prompt inter­ any crime of violence toward the same A defendant may be commanded to main­ vention into the matter. It is expected that person or persons, then the offense shall tain a specific geographic distance be­ House Bill 2346 will fill this void and pro­ constitute a felony of the third degree. The tween himself/herself and a victim or vide law enforcement officials with the legislature further concluded that an in­ witness, and may furthermore, be direct­ necessary tools to adequately restrain dividual has committed the crime of ed to cease all communication (except that stalkers, and thus prevent homicidal con- harassment, a summary offense, when which may be conducted through repre-

Juris sentative counsel) with a victim or speci­ current relationships.7 There are also action at the first sign that an accused is fied witness.3 As a matter of safety, the many instances where the person who has not complying with court instructions. current legislation directs that any orders been chosen as a target has never recipro­ Another facet of intervention is the issued by the court must be headed by a cated any attention and/or affection fact that stalkers often take their own life. notice in large print that instructs a wit­ toward the stalker. Data from around the country disclosed ness or victim to immediately call the A majority of stalking incidents are that 33 percent of those who killed their police at the given phone number if the classified as domestic violence. Unfor- partners or spouses also killed themselves. protective order has been violated'.4 In ad­ Although stalkers become psychological­ dition to the granting of orders, the court ly trapped by their obsession with their may authorize any consent agreement that victims, they can be assisted in beginning promotes the cessation of abuse of the Anti-Stalking the process of divestiture if they can be victim.5 stopped before they perform lethal If conduct violative of the protective legislation provides a assaults. order occurs, the person responsible for House Bill 2346 requires the ob­ the conduct may be held in contempt by vehicle for interrupt­ sessed stalker to confront the criminal na­ the issuing court. Punishment for order ture of his conduct, and it safeguards violations may also take the form of revo­ ing the obsessive, victims and witnesses who are the intend­ cation of any pretrial release, or forfeiture desperate, escalating ed objects of the stalker's conduct. The of bail and the issuance of a bench war­ early intervention focus of anti-stalking rant for the accused's arrest or remand­ conduct of stalking legislation has begun to fill the gaps in the ing the accused into custody. The existing statutory laws. It is no longer the revocation provision is applicable whether before it erupts into policy of this commonwealth that people the accused actually committed or simply obsessed with other individuals will be caused or encouraged the violation. lethal violence . ... permitted to terrorize them. The statuto­ ry provisions of House Bill 2346 articulate In the event of an order violation, an our legislature's commitment to the arrest may be made without warrant upon premise that the citizenry of Pennsylvania probable cause even if the violation was tunately, tradition has dictated that what must be free of the intrusive, terrorizing, not committed in the view of law enforce­ occurs in the home is a private matter for violent behavior exhibited by those ob­ ment personnel. The existence of an or­ resolution by the family members them­ sessed with certain individuals and their der may be verified by law enforcement selves. It must be recognized that some lives. Our state's lawyers, district attor­ officer through telephone or radio com­ domestic violence rises to the level of seri­ neys, law enforcement officials and munication. Once the arrest has taken ous criminal behavior, and therefore, must citizenry now have the authority and the place, the accused is to be taken without be treated as such. To this end, police, ability to deal with the heinous crime of unnecessary delay before the court that is­ prosecutors, the judiciary, and society as stalking and its related conduct as a seri­ sued the order. If the issuing court is un­ a whole must be made aware of the preda­ ous criminal offense. available, then in accordance with the tory and escalating nature of stalking and Pennsylvania Rules of Criminal procedure, view its commission as a serious crime. It TERRI L. TAYLOR, third year da y arraignment shall take place before a dis­ is only in this instance that the safeguards trict justice or, in cities of the first class, of the current legislation can truly be ap­ a municipal court judge.6 preciated. Anti-stalking legislation pro­ References Now that the statutory language has vides a vehicle for interrupting the 1. Richard A. Rosen, On Self-Defense, Imminence been examined, it is helpful to discuss the obsessive, desperate, escalating conduct and Women Who Kill Th eir Batterers, 71 N.C. L. type of situation in which the laws will be of stalking before it erupts into lethal vio­ REV . 371 , 397 (1993). 2. 18 PA. CONS. STAT. § 2709 (1993). applied. Stalking is a method of coercive lence, but before the interruption can oc­ 3. 18 PA. CONS. STAT. § 4954 (1993). control by which a person attempts to es­ cur, the crime must be recognized and the 4. 18 PA. C O NS. STAT. § 4954.1 (1993). tablish or re-establish control over an in­ 5. 23 PA. CONS. STAT. § 6108(a)(9) (1993). laws concerning it enforced. 6. 18 PA. CONS. STAT. § 4955 (1993). dividual. Often the "control object" is an Aproximately one-third of the per­ 7. N. Casanave & M . Zahn, Women, Murder and Male intimate partner or spouse. A study on petrators commit further offenses while in Domination: Police Reports of Domestic Homicide homicide conducted in Philadelphia rev­ in Chicago and Philadelphia. A paper presented the pre-trial phase of the criminal process. at the Annual Meeting of Ameri can Society of ealed that 25 percent of the men who Thus, protective orders are necessary to Criminology, Atlanta, October 31 , 1986. killed their female partners were separat­ provide refuge for victims and witnesses. ed or divorced from their victims, and The issuance of orders, and the duty of law another 25 percent of the women killed enforcement officials to enforce such or­ were women attempting to end their ders, empowers the police to take decisive

Fall• 1993 ED Tomorrow's Town Square

Many of you have an outstanding while not as large or versatile, offer use­ But if you do not purchase the program resource with which to engage in discus­ ful features that can supplement the more before the trial period expires, you must sion about current legal issues, or to find expensive services at very little cost. What then delete it. Otherwise, copyright iss ues information about a specific or general le­ I'm talking about is computer bulletin enter in. gal topic, and you may not be aware it board systems (BBSs). This would be an appropriate time even exists. This tool probably sits right A BBS is a " logical" meeting place to insert a word of caution. Downloading on your desk and is used for many other for computer users accessed via telephone copies of files from a BBS is one of the purposes. This tool, can enable you to dis­ lines. A simple BBS is likely to be operat­ ways in which computer viruses are trans­ cuss legal issues with attorneys from all ed by one individual, the system operator mitted. Some viruses have been intention­ over the world at little or no cost. The tool (sysop), on one computer out of his/her ally spread through these services, I'm talking about, of course, is that home. It is likely to have some games that although most are just inadvertently trans­ embodiment of the Age of Information­ can be played while on-line and may even mitted by careless users. So, once you the computer. provide for competition between users. have downloaded a program, it should be We are all familiar with These games can range from simple trivia, checked for viruses, just as you should WESTLAW® and LEXIS®. They are both dice, and card games, to complex role­ check any other new program prior to use. wonderful services from which to get fac­ playing and strategy games that can take A BBS usually has a message area. tual information, citations, current law, many hours to master. On a simple BBS, this message area is like­ news, background information, etc. Many Generally, a BBS has a file area from ly limited to exchanging messages only be­ references discuss all of the amazing which a user can download copies of files. tween the users of that specific BBS . things that can be done with those data­ To " download" a file is to transfer a copy Through some BBSs, however, one or bases. But those services are expensive of the file from the BBS to the user's more worldwide message networks are and do not allow for interaction or the machine. These files might contain games available. These networks allow the user practicing of the skill of discussion/argu­ to play on your machine, word process­ in one city to " post" a message in an area ment with a fellow human being. We all ing programs or programming languages. of specific interest and then have the mes­ know that discussing a topic with some­ In fact, almost every type of computer pro­ sage relayed to all BBSs across the world one who is knowledgeable in that area will gram/file imaginable is available through that are connected to that particular net­ often result in bringing new angles to light BBSs (I even found one to write your own work and carry that specific interest area. or will open a perspective that was previ­ will-it didn't help me in Estates & Trusts The message can then be read by poten­ ously closed. This option is not available class). Another feature, which is available tially hundreds, thousands, millions and with the two big services. However, on most BBSs, is a file that lists other BBSs trillions (okay, maybe not quite that many) WESTLAW® and LEXIS® are not the only in the same area. Additionally, there may of people across the world. If someone services accessible through your comput­ be files that list BBSs for a specific area wishes to respond to the message, the re­ er. Many other services are available that, code. If you cannot find these files, ask the ply is routed to the original BBS from sysop for assistance. An operator is usually which the message was generated, and glad to help. then " delivered" to the message origina­ Most of the files on a BBS contain tor the next time he logs on the BBS after shareware which has been transferred the reply message has been routed. Pub­ between BBSs throughout the world. lic messages are also available for each "Shareware" is a type of computer user to read and reply to, if something program that permits the user to try catches his/her eye. As a result, some very the program before purchasing it. If interesting issues become the topics in a it is a program you desire to have, forum that is open for discussion. • • then you must pay the author for Private messages can be transmitted the program. You are not under any between parties who may live thousands obligation; if you do not like the pro­ of miles apart. It should be noted, gram you do not have to purchase it. however, that any message that is sent by this method is not truly private. Each in-

Juris terest area usually has a moderator or sys­ ready have a modem installed in your scribers between $25 and $50 per year. tem operator who has access to all computer. That is all the hardware you This is significantly less expensive than messages that are transmitted through need. You will, however, need a telephone WESTLAW® or LEXIS®. Each of the BBS that area. Private in this instance means number to call and a communications pro­ sysops must pay to connect to networks that John Q. Public will not have access gram that will enable you to interact with and the subscription charges help to off­ to the message. the BBS. I use Qmodem™, a shareware set these costs. Very few sysops make any One message network of specific in­ program, but there are many others avail­ profit from their BBSs . terest to lawyers is called RelayNet™ able, either as shareware or from software So, if you have a little time and want International Message Exchange (RIME). retailers. While each program is different, to explore a resource that is not available RIME contains interest areas called "con­ all allow you to dial a telephone number through the " regular" legal computer ferences." One such conference is named and connect with the computer at the databases, give your local BBS a call and "legal." This conference is described as: other end. A local Pittsburgh BBS which ask if they have any electronic mail net­ " Discussion of topical legal issues with is connected to RIME (with the " legal" works with a legal interest area. If there some focus on computers, but all legal conference) and some other networks, is such a network available, but you can arenas are welcomed and encouraged. carries on-line games and has more than not find the legal area, ask the sysop to Host presents users with current legal four gigabytes of available files, is The Dew get that area. Usually, he/she will be more questions, encourages discussions which Drop Inn (854-0619). than happy to help out. By exploring these are followed by extended factual informa­ So how much does this cost? You al­ worldwide networks, you just might en­ tion. Host also prepares position papers ready have the computer and the modem counter a helpful resource, reference or which are generally available to the net­ -no extra cost there. The communica­ perspective that you would not have work."1 The term "host" as used in this tions software is fairly inexpensive; it is found otherwise. Although the amount of context refers to the moderator or facili­ usually less than $100 depending on the data is not nearly as vast as that available tator who is often a part of a conference. software you choose. If you decide to use through other services, it is not as expen­ The activity in the legal conference con­ shareware, you may try the software first sive either. As you can see the world of sists of approximately 30 to 60 messages and find one you like before you pay for BBSs can be informative, inexpensive and per day.2 RIME carries more than 400 con­ it. Some public domain communications just plain fun to explore. ferences, ranging from animal rights to packages that do not cost anything also WordPerfect®, and including conferences are available, even if you decide to keep such as beer (a discussion of home brew­ them. However, these programs are usual­ ing of beers and of beers in general), Dis­ ly less versatile than the retail or share­ ney (all things Disney), and geo-political ware programs. Some of the services, international relations (multi-faceted dis­ such as COMPUSERVE®, charge a flat cussions involving politics, religion, etc.). rate and also charge by the minute. Other communications networks These charges may differ, depending are available, many of which carry areas on which options you choose. But by of specific legal interest. Some of these far, the easiest and most inexpensive networks are INTERNET, COMPUSERVE®, way to access these networks is ILINK, SMARTNET, INTERLEC, and through your local BBS. Most BBSs are RUSHNET (this one is dedicated to discus­ free, but often limit access if you do sions of issues raised by or related to Rush not subscribe to that BBS. Since most Limbaugh). Not all BBSs are connected to BBSs only have one phone line, it all networks, or even carry all of the in­ is only fair that subscribers re­ terest areas in a particular network. The ceive an enhanced level of ac­ amount of information that is available is cess, which translates to the just too vast, and carrying these areas can amount of time available, the number of be quite expensive. files that can be downloaded and the num­ Okay, so how do you tap into this ber of available electronic mail interest vast store of knowledge and resources? If areas. Subscription rates are very reason­ you use WESTLAW® or LEXIS®, you al- able; the Dew Drop Inn BBS charges sub-

WARREN HAINES, third year evening

References 1. RelayNet™ Conference List, July 17, 1992. 2. Id.

Fall• 1993 at the side bar II

JURIS DICTIONARY

ACTIVITY FEE: COURTROOM STARE DECISIS: After all, why do the The fee payable by all DEMEANOR: Wear a Most folks refer to this work of making a law school students so suit and never wake up as "precedent." It means decision today, when an undergrads who have the judge. Shine your a judge is unwilling to assize in medieval free time can enjoy shoes. See LAW make a legal decision England did the work for sporting events and SCHOOL COFFEE. different from those of all time? This is why the concerts. This is his brethren or sistren; law involving the U.S. particularly galling to LAW SCHOOL even when the original Steel building Is a direct night crawlers; but it COFFEE: One drop of ii decision maker has extension of ancient pisses off day babies as on your shoe& you won't been dead for hundreds English Shire law. well. have to shine them for a of year&. It Is generally For&ooth? Legal year. not known, but this &cholar& have been indicates what some &een examining cave suspect: judges are paintings In search of lazier than law the ultimate stare professors. decisis.

JAMES M. RARICK, third year evening

NEWS ITEM: In an effort to combat a poor press image tht the legal profession has aquired. (And also to capitalize on the wild success of PBS's children's shows Barney and Mr. Roger's Neighborhood .) The ABA has created a new duo of children's programs to teach about the profession.

Kids! Meet "Arney" the other purple dinosaur l'ts time for a visit to Mr. Buckley's Neighborhood of Litigation

I sue you, you sue me Has anyone ever bothered you? We're a litigious family Called you names or stepped on your shoe? With a great big settlement that I'll get for you We'll make'em pay We'll make'em pay You can go to law school too! Let me be you lawyer!

I've always wanted to have a client just like you! I've always wanted to earn some extra cash for you!

So let's make the most of an unfortunate day They have the cash, but I have a way! We'll make'em pay We'll make'em pay Let me be your lawyer Won't you please? Won't you please? Please let me be, your lawyer.

Can you say 40% boys and girls?

JAYME DEIBLER, Second year day JERRY YANNITY, Second year day m Juris I Passed! I Passed! I Passed!

OOubnBAR REVI EW First Year Review • Multistate Professional Responsibility Exam • Bar Review in 46 States Duquesne University

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