VOLUME 7

Contents

2 From the Dean

5 Forum 6 The Teaching Role of the Law Librarian/ Richard A. Danner 11 Health Care as a Laboratory for the Study of Law/ Clark C Havighurst

15 Intellectual Property Under the Constitution/ David L. Lange

19 About the School 20 Admissions: Enrolling the Best and the Brightest 28 BLSA Recruitment Conference

DEAN EDITOR ASSOCIATE EDITOR Pamela B. Gann Evelyn M. Pursley Janse Conover Haywood NUMBER 2

31 The Docket

32 Faculty Profile: Clark C. Havighurst, Health Law Expert

35 Alumnus Profile: Kenneth W. Starr '73, Solicitor General: Lawyer for the United States

40 Book Review: American Space Law: International and Domestic by Nathan C. Goldman '75 43 Specially Noted 52 Alumni Activities 59 Upcoming Events

Duke Law Magazine is published under the auspices of the Office of the Dean, Duke University School of uw, Durham, North Carolina 27706 © Duke University 1989

SUPPORT SERVICES STUDENT CONTRIBUTORS PRODUCTION Mary Jane Flowers D.S. Berenson Graphic Arts Services Evelyn Holt-Fuller Ralph E. Jones Matthew W Sawchak DUKE LAW MAGAZINE I 2

From the Dean

plinary backgrounds. They are also mature beyond his years. He is pres­ ently completing his Ph.D. in the Duke School of Divinity. He will hold a primary tenured appointment in the Law School and a secondary appointment in the Divinity School. Neil Vidmar is a social psychol­ ogist who joins us from the Uni­ versity of Western Ontario, Canada. Social scientists now play a central role in many of the top-ranked law schools. The appointment of Dr. Vidmar as a tenured member of our faculty recognizes that the Law School should have a social scien­ tist on its faculty in order to be a top research legal institution that also provides a professionally ade­ quate education for its students. Dr. Vidmar's research concerns subjects central to the law and the empirical study of the legal process: the jury, the small claims court, medical mal­ practice, pre-trial procedures, eye­ witness testimony; the death penalty; and change of venue applicatiOns, among others. Empirical studies of various aspects of the litigation pro­ cess are well underway; and Dr. Vidmar will add this dimension to our faculty. Pedagogically; it is im­ portant to expose our students to The 1988-1989 academic year us from the University of Iowa. His social science, since complex liti­ has ended very successfully. You main scholarly work is a mix of gation increasingly involves expert will receive an elaborate year's sum­ constitutional history and consti­ testimony from social scientists and mary in our next Annual Report tutional jurisprudence. He is very jury selection analyses. published in the fall, but I want to highly regarded by serious scholars Admissions. The Law School highlight for you several areas of of constitutional law. His principal received 3,500 applications for the achievement with which the fac­ essays and articles layout large map­ 1989 entering class, more applica­ ulty and I are particularly pleased. pings of the Constitution's origins, tions than it has ever received in its Faculty Appointments. The its diverse and eclectic sources, its history. We will admit only about Law School's success in accomplish­ background and foreground, the one out of each six applicants in ing its research and teaching mis­ differing philosophies and politiCS order to matriculate an entering sions most significantly depends of its early dominant figures, and class of approximately 180 students. upon the excellence of its faculty the sharp differences in interpretive The Duke Law School remains one of appointments. Two superb persons approach respecting many of its the smallest of the national schools, have agreed to join us from other main features that characterized with entering class sizes approxi­ faculties. early constitutional disputes. His mating those at Chicago, Cornell, Jefferson Powell is from Bur­ scholarly writings are very well writ­ Stanford, and Yale. I thank the many lington, North Carolina, and joins ten, showing the mixture of his disci- alumni who have contacted appli- VOL. 7, NO.2 I 3

cants whom we have admitted in Currently, the Law School operates on a single computer have access order to recruit them to the Law a significant part of these auxiliary to catalogues of library resources, School. Your efforts are very help­ services outside the Law School LEXIS, WESTLAW, other relevant ful and much appreciated by the building because no space exists research data bases, and, in addition, applicants. in our current building to house word processing, expert systems, Building Renovations and them. and instructional exercises. Phase Addition. I have previously written Phase I of this total project is I provides the appropriate computer you about our plans to reconstruct currently underway, which is a li­ facilities and wiring that we will our current physical plant and make brary renovation project on the base­ need in the long-run within the Law approximately an 80,000 sq. ft. addi­ ment floor of the four-floor library School building and also for campus­ tion. The justifications for this proj­ in the amount of $1.7 million. Phase wide computer networking. Phase ect arise from three areas: (1) the I fits into the long-term renovation I will be completed around Sep­ building was designed for a student plan of the Law School. It complete­ tember 15, 1989. This scheduling body size of 300 students, and our ly modernizes the bottom floor of permits us to renovate a significant current student body is 550; (2) the the library for the purpose of in­ space in the current building with library must be totally renovated to stalling $600,000 in compact shelving the least possible disruption to our take advantage of computerization so that we can store more hard­ current teaching and examination of the research and writing process volume books in a more compact schedules. and compact shelving; and (3) the space. The new compact shelving Olin Foundation Grant for auxiliary services to support a school permits other current space to be Law and Economics. The John of the top rank (or any university) shifted in use from book storage to M. Olin Foundation has awarded have been greatly enhanced over direct student use such as the in­ the Law School a $487,000, three­ the past decade (e.g., admissions stallation of computer workstations. year operating grant to support a services, placement services, alum­ Each station will be wired so that Program in Law and Economics. ni services, publication services). a student may sit at the station and These funds will provide student

Cecil Maness, of Library Movers, Inc.; Hope Breeze, Head of Technical Services; and Richard Danner, Director of the Law Library, survey the library basement during the early stage of Phase I of the renovation. DUKE LAW MAGAZINE I 4

fellowships for joint degree students scholarly interests in this area. The to report that the Law School has (who in addition to the J.D. degree fIrst John M. Olin fellowships have received this year more total gifts earn the M.A. in economics), visiting been awarded to a few of the joint than at any other time in its history. professorships in law and economics, degree students in this summer's It has also received the largest total faculty seminar series, symposia and entering class. amount from its alumni and friends working paper publications, and Gifts to the Law School. A to the Annual Fund. I warmly thank curricular development grants. The full report of gifts to the Law School you for your generous support of Law School is particularly pleased during the 1988-89 academic year our Annual, endowment, and capital to have received the Olin Founda­ will appear in the fall publication funds. tion's recognition of the faculty's of the Annual Report. I am pleased Alumni Relations. I had only assumed the job as Dean for a few weeks when I decided to spend a signillcant amount of time this fIrst year in traveling around the coun­ try to see alumni. I have journ~yed to over thirty-fIve cities and held alumni luncheons. In addition, I have visited many individual alumni in their offIces and homes. Through this great odyssey I have been able to discuss with alumni the various achievements of and issues that con­ front the Law School. It has also provided me the opportunity to listen to your ideas about the Law School and the legal profession. These discussions have provided me with invaluable, thoughtful ad­ vice. I express to you my heartfelt thanks for the lengthy discussions and the wonderful social occasions. These visits have also resulted in signillcant stacks of correspondence! My in-box overflows with mail from alumni! I urge you to keep up the flow of communication. I have provided you a few high­ lights from the 1988-89 year. I will discuss these and many more areas with you in our next issue of the Annual Report.

Pamela B. Gann

Employees of Library Movers, Inc., load books to be stored in tbe library's new compact sbelving area of tbe basement.

DUKE LAW MAGAZINE / 6

The Teaching Role of the Law Librarian Richard A. Danner*

major turning point in the history of Duke Law School begins this summer with the start of building renovation in the law li­ A brary. Planning a new library building in the late 1980s forces the law librarian to come to grips with the changes in the procedures and techniques of legal research wrought by the continuing evolution of information storage and retrieval technologies. At a basic level, space planning forces one to consider how much room to devote to information stored in microform and various electronic formats, as well as in books. At a more fundamental level, however, the issues involved require consideration of the role of the library and law librarians themselves in the life of the law school. The role of the librarian is defmed traditionally in terms involving the acquisition, organization and dis­ semination of information. Unlike their counterparts in other types of libraries, however, law librarians have long considered teaching to be another essential component of what they do. Morris Cohen, who has served as law librarian at both the Harvard and Yale law schools, points out that law librarians are much more involved with the materials and methods of legal research and bibliography than are other librar­ ians with the materials of their specialities. Because of this involvement, law librarians have assumed the role of experts on legal literature. According to Cohen, law librarians not only are the natural teachers of legal bibliography and the methods of legal research: their expertise creates an obligation to teach these subjects. It is true, of course, that practicing law librarians teach in ways different from those of law professors. The instructional activities of law librarians are on­ *Director of the Law Library and Professor of Legal going and involve a variety of teaching formats and Research, Duke University School of Law. Professor settings. The teaching of legal research and bibliog­ Danner came to Duke in 1979 as associate law li­ raphy is done on a one to one basis in the process brarian and became director of the Law Library in of information retrieval, as well as in formal classes. 1981. He teaches a seminar in legislation as well as legal research. Since 1984, he has been editor of the Legal Research Instructional Programs American Association of Law Libraries' LAW LIBRARY Traditionally, though, instruction in research JOURNAL. Professor Danner is the 1989-90 President methodology and legal bibliography has been based of the American Association of Law Libraries. This in the classroom. Librarians and others have written article is based on several previously published arti­ frequently about instructional programs in legal re­ cles and addresses. search and how better to train law students in legal VOL. 7, NO.2 / 7

writing and research. No clearly superior model has The role of the librarian is defined emerged, as is probably appropriate given the vary­ traditionally in terms involving the ing missions and objectives of American law schools. Many schools recognize that law librarians' profes­ acquisition, organization and dis­ sional training and experience make them somewhat semination of information. Unlike more qualified to teach legal research than writing instructors or others who might be called upon to their counterparts in other types of provide research instruction. Not all law schools make libraries, however; law librarians have direct use of the skills of law librarians for legal re­ search instruction in the fIrst-year curriculum, how­ long considered teaching to be another ever. At a number of schools, the librarian's role in essential component of what they do. the fIrst-year legal writing curriculum remains under­ developed. In light of the current interest in improving law students' writing and analytical skills, many law Legal research instructors have law faculty status as librarians are concerned with developing ways to teach a result of their teaching activities. research effectively within their schools' overall writing programs. Although one should not underestimate Benefits and Problems the diffIculties of teaching legal research as a separate For students, the major benefIt of having legal re­ course from legal writing, it is possible to devise an search taught by librarians is the librarians' expertise effective program of librarian-taught instruction with­ in the subject matter. Just as the law school curricu­ in the fIrst-year writing program. lum provides a contracts specialist, not a torts scholar, At Duke, the legal bibliography instructional pro­ to teach the fIrst-year contracts course, so should it gram has functioned for a number of years as a suc­ provide someone with active knowledge of research cessful preliminary to fIrst-year writing assignments. sources and techniques to teach legal research. Through The program is made up of fIve weeks of classroom law training, practical experience, or both, the librarian and hands-on library instruction with accompanying has the best knowledge and understanding of sources written research asSignments, taught and administered of legal authority, fmding aids for specifIc problems, by law-trained members of the library staff. It is offered and differences among competing sources and tools. during the fIrst weeks of the fall semester and pre­ As more students enter law schools with computer cedes the legal writing course taught by members of experience, they will need informed instruction on the regular law faculty who are responsible as well the advantages and drawbacks of computer-assisted for a small-section substantive course. Both the legal research and on the differences among systems. As bibliography and legal writing courses are organized proliferation of sources and tools makes the legal around the small sections. The makeup of each legal research process increasingly more complex, the need bibliography instructor's course and assignments is for students to be trained in the relative merits of al­ largely the responsibility of the individual instructor, ternative problem-solving approaches will increase. who is encouraged to develop a course that anticipates There is no reason to believe that either legal writing the particular research needs of the writing sections specialists or teachers of substantive law have expertise he or she is instructing. There is usually ongoing co­ in these areas comparable to that of the law librarian ordination between the legal research and writing or that they are prepared to give research instruction instructors, which provides the potential for flexibil­ the emphasis that it needs in a complex information ity in scheduling and coverage. Sessions can be held environment. throughout the school year as needed to meet the re­ Properly designed, the separate librarian-taught search requirements of specillc writing asSignments, research course also provides some assurance that and additional sessions can be offered on sources and law students, in their fIrst year at least, are exposed topics outside those of the core legal bibliography cur­ to the variety of sources of legal authority With most riculum. If the writing assignments will involve legis­ law schools' traditional lack of interest in statutory lative history research, special sessions can be offered; issues and analysis in the fIrst-year curriculum, it can­ students in a contracts section can obtain instruction not be assumed that the legal writing program will in vee research and the specialized tools available. include research and writing problems calling for stu­ LEXIS and WESTLAW training is offered to all students dents to use statutory or administrative law materials. at times convenient for their writing assignments. An introduction to these important sources of law Key factors in the success of this program are the and an appreciation of their place in the system are potential for flexibility and the extent to which the provided through the research course. writing instructors and the legal research instructors The possibly artillcial nature of library research coordinate their courses. At Duke, this relationship is asSignments in a separately taught course is a potential fostered by the school's reCOgnition of the importance problem. After students realize that their "treasure of legal research instruction to the writing program. hunt" library asSignments are not graded and that they DUKE LAW MAGAZINE / 8

At Duk~ the legal bibliography in­ us. Code and the us. Code Service; next week we structional program has functioned will talk about the General Digest. " Recent critics of the traditional method have em­ for a number of years as a successful phasized that legal research should be thought of as preliminary to first-year writing a process, not all of which takes part in the library. Since library research is only one of a series of steps assignments. along the way to solving a legal problem, it is argued that research instruction should be organized func­ tionally to correspond to those steps, rather than along will not be asked to apply the sources they find to bibliographic lines. Otherwise, in order to make use the writing of a memorandum or brief, how can they of the bibliographic information they are given, stu­ be kept interested in the assignments and the course? dents have to reclassify the information into its proper The assignments and the lectures can more effective­ place in the research process. If the students fail to ly keep student interest if they emphasize the process reclassify the bibliographic information properly, they of legal research as well as the relationships between may have learned that the various editions of the Us. law-making bodies and the legal authority being sought Code all contain current federal statutory law, but they in the books. Incoming law students may have a sur­ may not have learned when it is appropriate to be prisingly low threshold of knowledge about institu­ looking for a statutory answer at all. In such situations, tions of government and their authority to make law. if the student does not understand the place of vari­ Classroom presentations that discuss how law is made ous sources in the hierarchy of legal authority and in and promulgated, and present the current and histor­ the research process, library research will proceed at ical relationships between those processes and legal an inefficient trial and error pace. 1 research, help maintain student interest in both lec­ The real point of these criticisms is that legal re­ tures and assignments better than presentations em­ search teachers need to spend more time helping stu­ phasizing bibliographic detail. dents understand what they ought to be doing before One way to promote a degree of realism in "trea­ going to the indexes of the USCA or to a digest, or sure hunt" assignments is to develop them around a before they sit down in front of a LEXIS or WESTLAW factual situation that poses enough analytical challenge terminal. The key to effective legal research in a com­ to interest the students and is complex enough to re­ plex information environment is the ability to formulate quire comprehensive research and the use of a variety good initial research hypotheses prior to embarking of sources. Carried out over several weeks of class­ upon the procedures and techniques of either book room sessions and asSignments, this approach can or computer-based research. inject life into a set of canned exercises and enables In law, where there is frequently an abundance of the students to develop awareness of the interrelation­ research material applicable to a research problem, it ships, not only among the authorities, but among their is never efficient to try and gather all available material sources: the bodies that issue the law. Even if the re­ before starting to work on it. Consequently, skill in search does not lead to a memorandum or other final formulating good research hypotheses-knowing how written product, the theme approach does provide to ask the right questions-is essential to efficient in­ a measure of continuity to the period of research in­ formation gathering. Anyone experienced in teaching struction and an overall problem to be resolved, rather legal research or writing knows that law students need than a series of unrelated drill exercises. The experi­ to be reminded that there is a time when they have enced librarian instructor also will fmd ways to tie to stop their library research and get down to the the research asSignments into what is being covered business of applying the law to the facts and begin in one of the first-year substantive courses, or to to write. complement what will be covered in later writing asSignments.

Factual Analysis and Query Formulation Through law training practical ex­ Another area to be covered in the research course, and one that if taught properly should keep students perienc~ or both} the librarian has interested, is that of factual analysis and question for­ the best knowledge and understanding mulation. Traditional approaches to legal research in­ struction are commonly criticized for their emphases of sources of legal authority, finding on the bibliographic aspects of legal research. Obsta­ aids for specific problems} and differ­ cles to effective learning may be presented if instruc­ tion is organized around descriptions of the books ences among competing sources and of legal research. "This week, we are going to compare tools. the United States Code Annotated with the official VOL. 7, NO.2 / 9

One way to teach students how to know when to As proliferation of sources and tools stop is by training them how to organize and begin a makes the legal research process in­ research project. In large part this is a matter of under­ standing the importance of working effectively with creasingly more complex, the need for the facts of the legal research problem. The facts dic­ students to be trained in the relative tate the issues to research and the sources in which that research will take place. It is only after they orga­ merits of alternative problem-solving nize their thinking about the facts of the problem that approaches will increase. legal researchers can do their best when they get to the library phase of research. In the artificial setting of law school research and ting the facts of a case into one or another category. writing courses, it is difficult for law students, as new The act of categorization itself will identify which facts researchers, to realize how important proper charac­ are relevant to the research process, and will allow the terization of the facts is to finding the law, or how researcher to frame issues and organize further steps hard it is in real life research to obtain facts and deter­ to be taken to fmd applicable law. Yet, the process is mine what facts are relevant. Students need to learn not so easy. Relevance, ranking, and order are unlike­ at the beginning of their education that working with ly to become apparent through a simple classification facts is a difficult and important part of the research of the raw facts of a case under one of several head­ process. Techniques of fact gathering are difficult to in­ ings or by anticipating a legal theory or tactic that corporate in either the research or writing curriculum. may be part of the case. Fact analysis-the process of imposing order on At a minimum, beginning researchers need guid­ relevant facts so to determine their legal Significance ance in learning how far to generalize or broaden the and use in the search for authority-can be taught in specific facts of a research problem before starting a legal research course much more readily than skills to categorize the facts, frame issues, and begin library in fact gathering. Yet, it remains an area that legal research. An example of how to do this from one text research and writing teachers tend to ignore or at is based on the statement: 'i\t the time of the acci­ least to give less emphasis than they might. Proper dent, defendant was driving a blue 1967 Ford Falcon." analysis of the facts of the research process enables Following the categories of any of the classification the researcher to identify legal issues and develop systems, a "thing" for this problem is obviously the terms and other descriptors to use as access points "blue 1967 Ford Falcon." But how should the Falcon to the indexes or the full text data bases. Among the best be characterized to analyze the problem and do things that the beginning researcher needs to learn the research? The systems themselves provide little early is that facts of legal problems may need to be help for the process of categorization. Certainly, a re­ generalized to be useful. The student needs some searcher moderately skilled in using proximity connec­ guidance on how far to generalize the facts and on tors could sit down at a LEXIS or WESTLAW terminal the implications of the choices that are made in the and pull up cases dealing with blue 1967 Falcons. process of generalization. Such a specific entry would not work in the West Fact analysis and generalization is an area that is digest system, but this fact is probably too specific to little explored in the instructional literature of legal be legally significant anyway. Among the things that research. Most text writers and other commentators the beginning researcher needs to learn early on is go no further than to report or suggest variations on that facts of legal research problems may need to be the analytical systems proposed by the major legal generalized to some degree in order to be useful for publishers: West and Lawyers Co-operative/Bancroft issue framing and access to published law. The stu­ Whitney. Each publisher system asks a researcher to dents need guidance on how far to generalize and on categorize the facts of a problem into several elements. the implications of choices made in the generalization Lawyers Co-op has its "TAPP" rule, which asks the process. They need to realize that the blue 1967 Ford researcher to analyze the facts in terms of the Things, Falcon is a part of a series of increasingly broader Acts, Persons, and Places involved. West has a more categories, such as: all 1967 Ford Falcons; all 1967 complex five-part system, consisting of Parties, Places Ford automobiles; all Ford automobiles; all automo­ and Things, Basis of Action or Issue, Defense, and biles; all motor vehicles; all vehicles. 2 Choice of cate­ Relief Sought. As can be seen, the Lawyers Co-op sys­ gory is significant to the research result. If there is no tem limits itself to categorization of the actual facts applicable law for automobiles, there may be one for of a problem; some of West's elements consider legal motor vehicles; if the facts specify a truck, perhaps theories or tactical and procedural issues that might a law on automobiles will not apply. arise. It is essential as well to re-evaluate and to refor­ These systems and most of the variants on them mulate research hypotheses during the reading and found in legal research and writing texts imply that evaluation phase of legal research. Critics point out fact analysis in legal research is largely a matter of fit- that legal research instructors may not emphasize DUKE LAW MAGAZINE / 10

The experienced librarian instructor ther studies of how judges and lawyers actually con­ also will find ways to tie the research duct their research are needed. Scholarly examination of these questions will not only add to our under­ assignments into what is being cov­ standing of the legal research process, but will provide ered in one of the first-year substan­ insight for improving the teaching of legal research in the law school. tive courses, or to complement what Of course, the law schools and law librarians are will be covered in later writing subject to criticism over how well that mission is ful­ filled. An appropriate answer to charges that summer assignments. associates and recent graduates come out of the law schools ill-equipped to do legal research, however, is to provide them better training from persons skilled enough that, until the material is read, the researcher and involved in legal research, rather than from writing hasn't found the law itself, but only the books where instructors or regular faculty for whom legal research it is written. Only after reading does the researcher technique is at best a secondary interest. At some law learn whether initial questions were correctly stated. schools, a trend toward more advanced research Stressing the importance of reading underscores the courses in the second and third years demonstrates need to define a good research strategy for each prob­ that legal research is a subject of interest and impor­ lem, and that there is a tie-in between fact analysis tance to the law school curriculum, and that legal re­ and effective use of the resources of law found dur­ search is itself an appropriate area for research and ing the library phase of research. study. Advanced legal research training, however, should not be at the expense of the law librarian's Legal Research and the Law Librarian continued involvement in the first year curriculum, In all academic and research libraries, the growing where a grounding for effective legal research can complexity and expense of new information technol­ be established for each student. ogies are causing a fundamental change in library ser­ vices and a new recognition of the librarian's role as 1. The process approach to research instruction is argued an instructor of research techniques. Library instruc­ most forcefully by Christopher and Jill Wren in their book THE tional programs, once seen as supplementary to refer­ LEGAL RESEARCH MANUAL (2d ed. 1986), and article The ence services, are now taking on a more central role. Teaching Of Legal Research, 80 LAW LIBRARY JOURNAL 7-61 In law schools, the librarian's teaching role always has (1988). A response, arguing, among other things, for the con­ been vital since professional training requires not only tinued viability of the bibliographic approach is Berring & Vanden Heuvel, Legal Research: Should Students Learn It or Wing It? that students learn where the reference desk is located, (forthcoming in LAW LIBRARY JOURNAL). but that they know how to conduct research on their own, both while in law school and once in practice. 2. This example is from W STATSKY & R. WERNET, CASE Perhaps most important to the development of ANALYSIS AND FUNDAMENTALS OF LEGAL WRITING 158-59 an effective and successful first-year legal research (1977). instruction program is institutional acknowledgment of the librarian's importance as a teacher and contrib­ utor to the law school's educational mission. Such recognition will not come without librarians believ­ In law schools, the librarian $ teaching ing that legal research instruction is important enough role always has been vital since pro- to be included within the law school curriculum and that the process of legal research is itself a fit subject fessional training requires not only of study and research. Academic law librarians may that students learn where the reference have done too little to convince law faculties that the legal research process itself should be recognized as desk is located, but that they know how an appropriate area of interest and specialization for to conduct research on their own, academic lawyers and law librarians. The advent of full-text legal data bases, such as LEXIS and WESTLAW, both while in law school and once has led, for example, to a number of creative studies in practice. of what sources judges cite in legal opinions, but fur- VOL. 7, NO.2 I 11

Health Care as a Laboratory for the Study of Law and Policy Clark C. Havighurst*

nlike most law school courses, health care law cannot be taught simply as a discrete body of legal doctrine. Instead, the teacher U of health care law fmds many points at which some larger body of public law (e.g., tax or antitrust) or private law (e.g., torts or insurance) impinges on health care providers or patients and creates special problems that warrant separate study. Although there are also many statutes, regulations, and legal rules that apply exclusively to the provision and financing of health care, they affect so many dif­ ferent matters, emanate from such diverse sources, and are so uncoordinated, inconsistent, and incom­ plete that they fail to constitute a coherent legal regime that can be studied as an integrated whole. In short, it quickly appears that the common denominator that best unifies the study of health care law is the health care industry itself. My own course in health care law is organized around the special institutions of the industry and the public-policy concerns and issues to which they give rise. This essay attempts to indicate the substan­ tive scope of the course and why I regard a course in health care law as potentially more than just a cur­ ricular frill and preparation for practice in a specialized field. Precisely because the legal framework within which the health care industry now operates is so amorphous and unsettled, health care law provides a uniquely valuable vantage point from which to view generally the operation of legal institutions and the interplay of law and policy. It is a fortuitous additional benefit that the course also includes lessons in ethics, professionalism, and professional regulation that carry over to the law student's own profession.

* William Neal Reynolds Professor of Law, Duke Teaching Law in Action University School of Law. Professor Havighurst has Making a single complex industry the focal point been at Duke since 1964 and is Director of the Law of a law school course is something of a pedagogical School s Program on Legal Issues in Health Care. innovation. To be sure, there have been courses in He also teaches antitrust law. This essay is adapted transportation, communications, and banking law, from the foreword to HAVIGHURST, HEALTH CARE but they have mostly focused on particular, relative­ LAW AND POLICY: READINGS, NOTES, AND QUES­ ly coherent regulatory regimes. Perhaps occasional TIONS (1988), and originally appeared in 38]. LEG. courses in sports law, education law, entertainment ED. 499 (1988). law, or agricultural law have addressed a range of DUKE LAW MAGAZINE I 12

Precisely because the legal framework Health care law also provides special insights into within which the health care industry the law-making process because so many significant now operates is so amorphous and issues affecting the industry and its legal environment remain unsettled. The questiOns yet to be resolved unsettled, health care law provides include not only legal fme points but many funda­ a uniquely valuable vantage pOint mental policy issues of a kind that are rarely open for more than academic debate. In addition to a contin­ from which to view generally the op­ uing regulation-versus-competition debate, there has eration of legal institutions and the been an even more fundamental tension between, on the one hand, centralization of decision making in pro­ interplay of law and policy. fessional or governmental hands and, on the other hand, devolution of authority to consumers and their voluntarily selected agents. There are many useful legal problems besetting a single field of activity, but lessons to be learned from witnessing efforts of the these fields lack the magnitude, complexity, and uni­ legal system to accommodate the aspirations of pro­ versality of health care. The study of law in such spe­ fessionals, the interests of consumers, the rights of cific contexts does have the virtue of capturing some patients, the imperatives of the political system, and of the reality of law practice-legal problems pop up the democratic appeal of reforms based on consumer in all directions rather than in accordance with some sovereignty and restored cost-consciousness. internal logic of the law itself. But health care law The diversity of the sources of law governing also offers superior opportunities for conveying in­ health care also makes the health care industry a valu­ formation about, and insights into, the legal system able laboratory for the study of the legal system. Both itself. In my more idealistic moments, I visualize a Congress and state legislatures have major roles. In course in Health Care Law and Policy as a third-year addition to presenting issues of statutory policy and elective that students would value not so much as a interpretation, the course offers many illustrations of bread-and-butter subject but as an exercise in applied federalism in action (e.g., the Medicaid program and jurisprudence that shows how law evolves and how many delegation and preemption issues, including it influences, for better or for worse, the overall per­ several under the state-action doctrine of antitrust law, formance of a single, intrinsically fascinating industry. the McCarran-Ferguson Act, and ERISA). The admin­ In any event, without neglecting the practical Side, I istrative process is also heavily involved in health try to teach the course in this way, come who may. care; the Health Care Financing Administration, the The health care sector of the economy offers a Federal Trade Commission, and state licensing and unique opportunity for the study of law in action for other regulatory agencies all have major roles. Local several reasons. First, the industry has undergone ex­ government is involved in the provision and fmanc­ traordinary changes in recent years as professional ing of services and in health planning. dominance has given way to other influences. The Defming the proper law-making role of the ju­ rapidity of the transformation and the absence of any diciary presents especially challenging issues in the single watershed event or impelling cause create op­ study of health care law. Courts acting primarily in portunities for observing the performance of the legal a common-law mode govern several important areas system in promoting, retarding, and adapting to devel­ (e.g., redressing medical malpractice and defming opments. Although the legal system originally bol­ hospital/physician relations and the powers of volun­ stered the old medical regime and embodied most tary associations). Federal and state courts are also of its tenets, changes in legal rules and doctrine even­ involved in evaluating health care legislation under tually contributed to the collapse of the old system constitutional norms, interpreting statutes and their and the development of a more chaotic, partly market­ underlying (and sometimes conflicting) policies, and driven system. There are, however, many respects in supervising administrative action. Perhaps most telling­ which the law has been slow to change and still in­ ly, there are enlightening opportunities for questioning hibits innovative responses to new economic condi­ the very need for judicial intervention. The question tions. The contribution of legislation to the evolution of the appropriate scope of judicial activism arises of the industry has been mixed, reflecting old ways vividly in the health care field in the interpretation of thinking as often as new ones. At the same time, many of the most crucial developments in health care law, especially in the all-important antitrust sphere, ... legal problems pop up in all have been the result of judicial decision. Again and directions rather than in accordance again, the student will need to ask whether a particu­ lar statute, regulatory action, legal doctrine, or judicial with some internal logic of the law decision comports with new developments or with itself. any clear-cut policy toward the health care field. VOL. 7, NO.2 / 13

Although the legal system originally and enforcement of private contracts, in the super­ vision of private actions (e.g., hospital staffmg deci­ bolstered the old medical regime and sions), in the oversight of voluntary organizations (e.g., embodied most of its tenets, changes agencies engaged in accreditation and credentialing), in judicial review of questionable statutes and admin­ in legal rules and doctrine eventually istrative actions, and in the administration of antitrust contributed to the collapse of the old law. Finally, cutting across everything else that the stu­ system and the development of a more dent must consider in the study of health care law chaotic, partly market-driven system. are major social policy issues. In addition to engaging the student's political interest as an advocate for or against extensive in-kind redistribution, the health inant policy of relying upon competition between care sector offers a good opportunity to address such financing plans to achieve efficiency. The market pecu­ issues pragmatically, by focusing on both the legal liarities that complicate health care fmancing often and practical details of entitlement programs and the determine the form of public and private actions to disadvantages as well as the benefits of different ways control costs without sacrificing essential quality. A of addressing the needs of the poor. Without losing course in health care law can serve as an excellent sight of the important patient interests at stake, stu­ introduction to the complexities of both social and dents can examine issues relating to costs, including private insurance. the hidden cross-subsidies implicit in expedient legis­ Other large policy themes to which a student lative or judicial policies. Because American sOciety may be introduced through the study of health care falls well short of honoring its professed commitment law include the tension in the American polity be­ to providing health care to those who cannot fmance tween centralized and decentralized decision making­ it for themselves, law students have an excellent op­ that is, between an orderly, regulated system featuring portunity to encounter volatile public issues in the homogeneity, paternalism, and orthodoxy, on the one context of the real-world governmental institutions hand, and a disorderly, pluralistic marketplace featur­ and private actors that must be involved in any re­ ing producer independence, consumer sovereignty, distributive effort. and competitive diversity, on the other. Although it is customary to speak of a health care "system," de­ Teaching Policy and Economic Issues velopments in recent years appear to have moved the In addition to shedding light on the workings of nation away from earlier visions of a social enterprise the legal system, the study of health care law can illu­ operated under fairly strict professional or govern­ minate problems of public policy that a student may mental control. A related issue is whether government not encounter so explicitly or so forcefully elsewhere regulation or some more market-oriented alternative in law school. The problem of controlling health care offers the better solution to the severe dysfunctions costs, which absorbs so much public and private en­ of the health care economy. ergy, is best understood as a challenge to achieve effi­ Breaking down the general themes further should ciency in the allocation of societal resources. Emerging lead the student to contemplate other issues that may evidence about the limits of medicine and about the not surface explicitly or with the same force elsewhere extent of scientific uncertainty dramatizes the chal­ in legal training. The student is confronted at many lenge. Similarly, many of the claims made on behalf points by questions concerning the performance of of the qUality of care also raise (or should be seen the legislative branch of government. Indeed, health to raise) questions of the how-much-is-enough variety. personnel regulation and statutory prohibitions on Although efficiency is a central theoretical concern commercial practices in health care provide some of of economics, attempts to achieve it in health care the best illustrations of the ability of interest groups by either market or nonmarket means encounter major to use state legislative processes to secure their own political and practical difficulties emanating from the advantage. An introduction to "public choice" theory prevalent belief that health (and, by implication, health may impart some desirable sophistication while also care) has, or should have, no price. Law students preparing the student for legislative struggles that are would benefit from an introduction to such societal a constant feature of health care law at both the state dilemmas and to the practical problems they present and federal levels. both to advocates and to public and private decision The study of health care law also invites attention makers. to the role and utility of economic incentives and self­ Other persistent themes in the rigorous study of interest in motivating market participants, both lay health care law include the twin market imperfections and professional. A great deal of health care law re­ that bedevil all risk shifting and insurance: "moral haz­ volves around the legitimacy of such incentives and ard" and "adverse selection." At stake are the viability of corporate agents, both nonprofit and for-profit, as of private health care financing and the currently dom- intermediaries between professional and patient. Few DUKE LAW MAGAZINE / 14

The problem of controlling health care in institutions. Tort liability is examined at length as a quality-assurance mechanism, but with its policy costs7 which absorbs so much public implications in full view. The course then turns to and private en~ is best understood cost containment, focusing first on government regu­ as a challenge to achieve efficiency in lation of the private sector and then on cost-control measures being employed in public programs. Finally, the allocation of societal resources. cost containment in the private sector, including such innovations as health maintenance organizatiOns and preferred-provider arrangements, receives extensive law students are otherwise introduced to issues of this attention. Throughout the treatment of specific legal kind, to the not-for-profit corporation, or to federal, topics, policy threads can be woven to produce a state, and local tax exemptions. The policy context of rich fabric. the course can make the introduction to such issues Unfortunately, time constraints require that most particularly memorable. "bioethics" issues be left in the background for an­ Health care law also deals with information, the other course or seminar. My course does, however, quantity and quality of which are vital to social con­ include at the end-as issues requiring a synthesis trol through either governmental action or market of cost, quality, and access concerns-some dilemmas forces. The health care industry helps to offset the related to medical technology and the rationing of market's chronic underproduction of information health services, especially in the context of so-called when it provides authoritative opinion on qUality by "catastrophic" disease. Questions involving such hard granting accreditation for institutions and credentials choices and many others in the bioethical sphere for personnel. The public, however, still lacks a diver­ seem to me best addressed only after one has a first sity of sources and views on many debatable matters sense of the health care industry, its financing and that are impliCit in these judgments on provider qual­ cost problems, its mix of public and private decision ity or competence. Law students can ponder the role making, and the various mechanisms by which re­ of information and the power of the legal system to sources are or might be allocated to health care. In influence its production and dissemination (e.g., in an ideal curriculum, bioethics would be taught in the parallel use of first amendment principles and a last-semester seminar. antitrust law to lift artificial restraints on professional If teachers who were originally drawn to health advertising). In many respects, the health care sector care law by a fascination with philosophical dilemmas is appropriately viewed as a malfunctioning market­ and the qualitative aspect of the doctor-patient rela­ place of competing ideas and not merely as a market tionship choose not to teach the proposed course for technical services. Indeed, many of the economic because bioethical issues are downplayed, perhaps failures of the health care market can be laid at the someone else on the faculty might be recruited to door of one-party rule by the medical profession and undertake the course. Although the subject matter the consequent lack of public debate and informed may not fall into anyone's particular speCiality, there consumer choice. are apt to be some law teachers who are looking for a vehicle-a laboratory, as it were-in which to im­ Overview of a Course part to students the broad perspectives on legal insti­ in Health Care Law and Policy tutions and public policy that a course focused on My course begins by introducing the basic institu­ the health care industry can provide. tional, legal, economic, and policy framework of the health care industry. In addition to highlighting ac­ cess issues, this introduction focuses on the legal and Indeed many of the economic failures policy tensions between altruism and profeSSionalism, 7 on the one hand, and commercialism and antitrust of the health care market can be laid policy, on the other. The course then covers sequen­ by tially the two sides of the all-important quality/cost at the door of one-party rule the trade-off without losing sight of the central reality medical profession and the consequent around which the course revolves-the trade-off itself. Personnel credentialing and regulation are taken up lack ofpublic debate and informed first, followed by careful consideration of the qUality­ consumer choice. of-care and related organizational and liability issues VOL. 7, NO.2 I 15

Intellectual Property Under the Constitution David L. Lange*

omeone has said: "To know the past is to understand the present; but to anticipate the future-ah, to do that is to walk among the Sages." I want to anticipate the future, briefly, in a few remarks about some issues affecting intel­ lectual property which I expect will arise under the American constitution in that century which now lies but a decade ahead. I think you may fmd the subject intriguing. But it is also vast; and so I must trust you to appreciate my need to move swiftly, and to sketch in broad strokes. The constitution empowers Congress to enact legislation recognizing rights in intellectual property under two grants of authority-one general, the other specific. The general authority is the commerce clause­ which is in fact so general that it carmot be supposed to have any particular bearing upon the subject matter of intellectual property at all! I am led to suggest, then, the first, the broadest, and by far the most intriguing constitutional issue of them all: namely, whether a clause as general as the commerce clause can be counted upon adequately to constrain the growth of subject matter in a field of doctrines fraught (as intellectual property doctrines are fraught) with pro­ found implicatiOns for every aspect of the intellectual life of our nation. Many surely will come to think the commerce clause inadequate to that task in the next century. I think it is now: 1 Meanwhile, however, things do go on, more or less as they have for two centuries. Under the authority of the commerce clause Congress acts to regulate trademarks, unfair competition, trade secrets and, in­ *Professor of Law, Duke University. Professor Lange deed, a host of other activities touching upon intel­ has had substantial professional experience in radio, lectual property in one fashion or another-some of television, cable, and motion picture production, and these activities quite broad (like international trade), has served as a member of the Governing Committee and others quite narrow (like the manufacture of of the ABA Forum on the Entertainment and Sports microchips). 2 Industries. He joined the Duke Law faculty in 1971, Of course it is neither accurate nor fair to say that and teaches in the areas of intellectual property, en­ Congress is altogether unconstrained in these matters. tertainment law and torts. He is also of counsel to The commerce clause is generous, but not unlimited a law firm with offices in Charlotte and Research in what it allows; and besides, other constraints oper­ Triangle Park. This piece is a revised version of re­ ate as well: states may act, by custom or right in our marks made by Professor Lange at the spring 1989 federal system, so as to "preempt" Congressional Barristers Weekend. activity-not of course de jure, but de facto, as in the DUKE LAW MAGAZINE / 16

The Berne convention requires an ad­ case of trade secrets and dilution which are primarily hering country to secure claims which matters still dealt with in our time under state laws. 3 Then there is also the more specific clause with­ are grounded in what are frequently in Article I (Article I, section 8, clause 8), which em­ referred to as the «moral rights n of powers Congress to establish laws with respect to writings and discoveries: authors. The Congress shall have Power ... [t]o Pro­ mote the Progress of Science and useful Arts, by securing for limited Times to Authors and These are strong assertions. They should be sup­ Inventors the exclusive Right to their respec­ ported with examples. I am in the process now of tive Writings and Discoveries. drafting a treatise in which I hope sucessfully to do This is the clause-we can call it Clause 8-under just that. Meanwhile, however, today, let me give you which all federal copyright and patent laws originate. a very specific example-this one drawn from my And here, it may be, is a grant of power to Congress own professional involvement in the dynamic field on terms which also limit what can be done: literally, of moral rights. so as to make valid only those laws which promote It may be helpful if I begin, though, with (as they the progress of science and the useful arts. say) a bit of background. last month (in March, 1989), This clause, couched in the quaint language of the United States flnally joined some sixty other coun­ the eighteenth century, hardly explains itself; and the tries around the world in adhering to the Berne Con­ Framers left us little in the way of directly relevant vention-an important international convention which history.4 Still, we are not obliged entirely to speculate moderates copyright claims among its adherents. about meaning. Two centuries of usage, by courts and The Berne Convention is laudable in many re­ Congress alike, suggest in broad terms: flrst, that Clause spects. I have no doubt we would have adhered to 8 is indeed a limitation upon congressional power; it years before-but for a vexing problem caused by and second, that it permits trafflc in rights primarily article 6bis which requires adhering nations to pro­ in order to enrich the public domain. 5 vide protection for an author's right "to claim author­ And so we might suggest-as I did in testimony ship ... and to object to any distortion, mutilation, I gave some six years ago to the House Subcommittee or other modification of, or other derogatory action which oversees copyright legislation-that in Clause in relation to ... [his] work which would be preju­ 8 the constitution establishes a system of adverse pre­ dicial to his honor or reputation." In effect, the Berne sumptions, against the weight of which proponents convention requires an adhering country to secure of new or additional rights in the fields of copyright claims which are grounded in what are frequently and patents must establish the legitimacy of their referred to as the "moral rights" of authors. 10 claims. 6 Moral rights, in conventional understanding among Indeed, Congressman Kastenmeier (the Subcom­ intellectual property lawyers, include these: the right mittee Chairman) subsequently adopted what he called to be identified as an author; the right to withdraw the "Lange test" for new legislation under Clause 8. from identification as an author; the right to publish So, for example, when the Microchip Protection Act (sometimes called the right to divulge) a work; and of 1984 was passed, it was evaluated (and found suf­ the right not to have one's work distorted, truncated ficient) not only under the commerce clause, but also or otherwise mutilated by others. 11 under the more demanding requirements of Clause Well, you may say, but then surely no one can 8-and in this latter case, more specifically still, under sensibly object to claims like these which appear to a four-part test essentially like the one I had suggested be grounded in common decency indeed, in morality. in my testimony.7 I must confess, however, that I did object in still more You may be sure that efforts to restrain the growth testimony I gave to Congress on this subject, briefly of intellectual property in this fashion do not go un­ and somewhat indirectly, two years ago. 12 And I draw challenged by the would-be proprietors of rights in some reassurance from the fact that my views were these fields. 8 But an effort to insure an orderly growth shared by many others who expressed them at greater of rights in the field of intellectual property, on prin­ length, and more directly, than did I.13 ciples ordained by the constitution, is, in my opinion I take ultimate comfort, moreover, in the fact that at least, no cause for embarrassment. when Congress fmally enacted legislation to imple­ For what is increasingly troublesome about this ment adherence to the Berne Convention-again, the field is that it is expanding so rapidly and so recklessly legislation which took effect March 1 of this year-it as to consume itself in internecine conflict-a conflict did so against a background of legislative history which which ultimately threatens the public domain (that made it clear that our own copyright system would seedbed of impulses and ideas, that common ground afford no direct support for a claim of moral rights. of human experience from which all creativity ulti­ Instead, such rights as one might seek would have to mately must come) with annihilation.9 be found in a number of other separate doctrines al- VOL. 7, NO.2 / 17

ready well-established in our legal system-doctrines One of the colorized pictures I defended (if "de­ such as defamation, privacy, the right of publicity, fended" is the word) was that fIne old classic, "It's a unfair competition and trademark law, and so on.14 Wonderful Life", with James Stewart. You remember But still-why this reluctance to address the sub­ it; it has cheered the hearts of all who have seen it ject directly in the law of copyright? What harm could at more Christmas times than one might wish to that lead to? The immediate answer is that it might acknowledge. It was also-is also-jimmy Stewart's well violate Clause 8 were Congress to establish moral own personal favorite. Among all the many fme fIlms rights as a dominant predicate of our copyright sys­ he made, none so touched his own heart as "It's a tem. In our constitutional system we recognize the Wonderful Life." Splendid though it was, however, rights of authors for limited times in order to encour­ the work eventually fell into the public domain. And age original expression. Our intention is to enrich the now, in 1986, Hal Roach Studios had colorized it. public domain, into which all copyrighted work one The picture was originally fllmed by a cinematog­ day must fall. Our concern for the rights of authors rapher named Joe Walker, who shot it in black and as such is, therefore, quite limited: at best, an author's white shortly after World War II. Walker had died just rights are distinctly secondary to the intellectual econ­ as the colorizing controversy was heating up almost omy which, in effect, the system establishes. IS four decades later. And Stewart-deeply offended by In this constitutional system we differ from many the colorized version (through which, he said, he other nations which give the author's rights a far high­ found himself unable to sit)-expressed sympathy for er priority. 16 Walker in terms of indignation that called to mind I believe our system to be the wiser. And I will a celebrated denunciation delivered by an equally out­ continue with my example to suggest more particu­ raged United States Senator named Smith to his mor­ larly why this may be so-and why also we must be ally bankrupt colleagues, circa 19401 careful, both in our time and in the future, to insure Here, then, was an appealing scenario: a major that our constitution's wise constraints not be over­ fllm star protecting the moral rights of an obscure ridden by transient enthusiasms. artist whose creation and enduring monument had Three years ago I agreed to represent Hollywood's been debased by the forces of contemporary Phi­ Hal Roach Studios in an exceedingly controversial listinism. An appealing scenario-except that, as it matter then pending before the Register of Copyright. happened, things were not exactly as they appeared The subject was "colorizing'~a process by which to be. What Stewart didn't realize was that Walker him­ movies originally rendered in black and white can be self had actually approved the colorized version be­ tinted electronically, so as to afford approximately the fore he died! 18 qUality of color I remember seeing in the better ex­ I give you this story in part because I think it has amples of late-period Republic Studios cowboy fIlms. its own charm and I like to tell stories like that. But The question raised by the Register-quite properly I give it to you as well because it conveys something so, I want to make it clear; he was merely doing his of the subtlety and the complexity of issues which job as custodian of copyright under the constitution­ arise when an author's proprietary claim in expres­ was whether the process of adding color to f1lms could sion is grounded in moral rights. Who, indeed, is the lead to a new and separate copyright in the colorized author in this case? Is it Stewart, or the cinematog­ version. I thought it could, as did a number of other rapher? Or someone else again? The producer? The lawyers with whom I joined in briefIng the case. director, perhaps? Or even the studio!? Eventually, the Register agreed. 17 In truth, I think, the moral rights in cases like this The narrow copyright question in that proceed­ one lie elsewhere altogether. At some pOint, I would ing was arcane; and I will not stop to discuss it here insist, each of us should be entirely free under law to in any additional detail. For the real question in the see in any work of art whatever he or she wishes to colorizing controversy I want to address in these re­ believe is there. Surely this is the essence of what it marks is the far more controversial question of moral means to exchange the limited protection of a mo­ rights. nopoly in expression (as under our constitutional sys­ tem of copyright) for an ultimate dedication of the work to the public domain. You may disagree, of course. Many do. The con­ Colorized versions of classic movies troversy over colorizing has yet to abate. 19 But at least do distort the original work. They may let me tell you one thing more about the aftermath of this particular controversy-again, something very also render it accessible for the first personal and, I hope, something at least modestly time to a public whose tastes are ap­ illustrative of the underlying issues. I own two prints of "It's a Wonderful Life." One pealed to only in the tinted version. is the original version in black and white; the other is the colorized version Hal Roach gave me while I was DUKE LAW MAGAZINE / 18 working on the case. I watch the black and white ver­ These and several scores of questions like them sion once or twice annually, usually with my wife­ are going to require not just attention, but resolu­ but rarely with my children, who don't share my ap­ tion in the century ahead. It will be a challenge to petite for movies which aren't in color. And so, as it our constitution equivalent in substance to the chal­ happened, my son Daniel found it possible to sit lenge we have faced under the first amendment in through that fllm for the first time only because he this century. could now watch it in a colored version. Daniel did The outcome presumably will be beyond our own agree with Stewart that the work was "outrageous." personal experience. But it is open to us all to partici­ But in Daniel's lexicon that term generally conveys pate in the formation of the agenda: to see the chal­ strong approval. Indeed, it amounts to an unqualified lenges clearly; to begin the debates; and to carry them endorsement, suggesting substantial merit on aes­ as far as our vision and our energies allow. thetic grounds! Meanwhile, for those of us who have the pleasure Colorized versions of classic movies do distort the of practicing in this field, or the privilege of teaching original work. They may also render it accessible for it-it is, truly, a wonderful life! the first time to a public whose tastes are appealed to only in the tinted version. That, I believe, is exactly 1. See Intellectual Property and Trade, 1987: Hearings on H.R. as it should be. 1931 before the Subcomm. on Courts, Civil Liberties, and the Holmes warned us-in one of the few copyright Administration Of justice Of the House judiciary Comm., 100th cases to address the underlying constitutional dimen­ Congo 1st Sess. 110 (1987) (statement of Professor David Lange). sions in the law of copyright-that we must be careful 2. See Kastenmeier & Remington, The Semiconductor Chip not to allow copyright itself to become the indirect Protection Act of 1984, 70 U. MINN. L. REV. 417 (1985). 20 3. See, e.g. , Kewanee Oil CO. V. Bicron Corp., 416 u.s. 70 arbiter of public taste. We run that risk when we fix (1974). a work forever in the version of it envisioned by its 4. See M. NIMMER & D. NIMMER, NIMMER ON COPYRIGHT first creator. And it is for this reason (wisely and cor­ § 1.02 (1988). rectly, I believe) that Congress has refused to embrace 5. Graham v. John Deere, 383 u.s. 1 (1965). But c/, id. § 1.03. moral rights under the copyright system our consti­ 6. See Copyright and Technological Change, 1983: Hearings before the Subcomm. on Courts, Civil Liberties, and the Admin­ tution permits. istration Of justice of the House judiciary Comm. , 98th Congo Questions of this character-that is to say, questions 1st Sess. 55 (1983); Audio and First Sale Doctrine, 1983: Hearings inviting an inquiry into the constitutional underpin­ on H.R. 1027 and 1029 before the Subcomm. on Courts, Civil nings of the law-have arisen relatively infrequently Libe.rties, and the Administration of justice of the House judi­ in the two centuries since we began to recognize rights ciary Comm., 98th Congo 1st Sess. 308 (1983). 7. See Kastenmeier & Remington, supra, n.2, at 440. in those intangible, ephemeral expressions of human 8. C/, ]. LARDNER, FAST FORWARD: HOLLYWOOD, THE creativity that we call, collectively, intellectual property. JAPANESE, AND THE VCR WARS 280-281 (Norton 1987). Today they abound on every hand. Confronted 9. See Lange, Recognizing the Public Domain, LAW & by an electronic technology which is having an im­ CONTEMP. PROBS., Autumn 1981 at 147. pact in our time that surely rivals the impact of the 10. See Baumgarten & Meyer, Effects of u.s. Adhe.rence to the Be.rne Convention 10-12, in THE U.S. COPYRIGHT OFFICE press upon fifteenth century England, we are fmding SPEAKS: CONFERENCE PROCEEDINGS (Prentice Hall Law & that our jurisprudence is not yet equal to the challenge. Business 1989). How are we to decide issues in which a new tech­ 11 . See NIMMER, supra n.4, at § 8.21. nology (like the double-headed VCR, or DAT) con­ 12. See Hearings, supra n.1. fronts rights held by motion picture proprietors or 13 . See gene.rally Berne Convention Implementation Act of 1987: Hearings on 1623, 2962 and S. 1301 before the Subcomm. recording artists? Each side may sensibly claim to on Courts, Civil Liberties, and the Adminstration of justice of the "advance the progress of science and the useful arts." House judiciary Comm., 100th Congo 1st Sess (1987). But who is to have priority-and on what grounds? 14. See Baumgarten & Meyer, supra n.10. See also NIMMER How are we to apportion rights among the players supra n.4, at § 8.21. in a field as vital, as exciting, as important-and as 15. See Graham V. John Deere, 383 U.S. 1 (1%5); Mazer V. Stein, 347 U.S. 201 (1954). essentially foreign to every established copyright and 16. See gene.rally STEWART, INTERNATIONAL COPYRIGHT patent principle in our law-as the field of computer AND NEIGHBOURING RIGHTS (1983). technology has become in our time? 17. See Oman, The Copyrightability of Colorized Motion How are we sensibly to recognize legitimate priori­ Pictures Under the u.s. Copyright Law, 23 COPYRIGHT 381 ties among authors in an entertainment age dominated (December 1987). 18. My version of this story is derived from personal sources. by derivative works? The question is not a minor one. An abbreviated version appeared at page 17 of the January, 1987 Were Shakespeare alive and working today, it is un­ issue of Channels, a trade journal. likely that he could write a single one of the plays 19. For a thoughtful examination of the controversy by an he left as his enduring legacy to the English language. author who shares my conclusion on the merits, see gene.rally Beyer, Intentionalism, Art; and the Suppression Of Innovation: He was, to be blunt, a plagiarist; a genius, perhaps; Film Colorization and the Philosophy of Moral Rights, 82 NW but a plagiarist undoubtedly (Today, presumably, he UNIV. L. REV. 1011 (1988). would be employed writing television treatments for 20. BJeistein V. Donaldson Lithographing Co., 188 U.S . 239 Lorimar.) (1903).

DUKE LAW MAGAZINE I 20

Adtnissions: Enrolling the Best and the Brightest

When James B. Duke established Admissions takes this charge seri­ total which fell just short of 3000 the Duke Endowment in 1924 trans­ ously in recruiting and admitting applications. While law school appli­ forming Trinity College into Duke the best and brightest students. cations have been increasing nation­ University, his objectives for the Duke's admissions statistics are wide, the increase in applications newly created University were sum­ impressive by any standard. In 1985 to Duke Law School for the 1988 en­ marized in the seventh article of Duke received 1877 applications for tering class-twenty-seven percent­ the Endowment Indenture. One of admission. This spring the School exceeded the nation-wide increase the cardinal principles stated is "to received 3500 applications-the of twenty percent. admit as students only those whose largest number in its history. This The 182 men and women who previous record shows a character, number represents an eighty-six per­ comprised that class represent the determination and application evinc­ cent increase in applications over realization of last year's admissions ing a wholesome and real ambition the last five years. This is also a sig­ and recruiting goals. The statistical for life." The Law School Office of nificant increase over last spring's data for these students remain vir- VOL. 7, NO.2 121

tually unchanged from the year be­ and bar admission. Thus, when the School community, continued to fore, as the median LSAT is 42 and ABA published its first list of ap­ provide the personal touch to the the median grade point average is proved law schools, Trinity (Duke) Law School Admissions Office. Those a 3.54. The students come from was among the thirty-nine schools who entered the Law School during ninety-seven different colleges and so listed. those years describe her as some­ universities. Thirty states and four In the 1930's, under the direction one who had a particular knack for foreign countries-China, Panama, of Dean Justin Miller, the School admitting people who could con­ South Africa, and West Germany­ actively sought to establish Duke tribute of themselves to the School are represented. Law as an institution with a national and to their classmates, as well as The increase in applicants to scope and character. Miller, a former benefit from the education offered law schools in general has been dean at Southern California Law them. attributed to the higher proftle of School, embarked upon this ambi­ In 1983, then-dean Paul Carring­ lawyers resulting from media cover­ tious program by recruiting legal ton appointed Gwynn Swinson, who age of the hearings related to Robert scholars from California and around is the current Associate Dean of Ad­ Bork's nomination to the U.S. Su­ the country: The impact of the new missions. Swinson, in conjunction preme Court, the Oliver North hear­ admissions program resulted in a with Dean Gann and the Faculty/ ings and trial, or even the L.A. Law student body that was more geo­ Student Admissions Committee, television series. But, no doubt, the graphically and institutionally sets the goals and policies for ad­ increase in applications to Duke Law diverse than in previous times. For missions. Much of Swinson's time, School may also be attributed to example, in 1937, the lO2 Duke Law however is spent on the road. In the active recruitment efforts of Duke students represented twenty-nine the tradition of Dean Latty, she trav­ faculty, staff, students and alumni. states and fifty-five undergraduate els throughout the United States to institutions. increase the public's awareness of A Tradition of Excellence In 1958, Professor E.R. (,Jack") Duke Law School. The Duke Law School Admis­ Latty was appointed dean of Duke Swinson was recently elected sions Office administers an active Law School. Latty inaugurated an to the Board of Trustees of the Law recruitment program designed to unprecedented era of activity for School Admission Council (LSAC). bring some of the best and bright­ the School by spearheading a drive She indicates that "not only was est minds to Duke to study the law. for a new building to accommodate I pleased to be elected by my coun­ This program represents the con­ the growing law program. "Dean terparts at other law schools, but tinuation of a long tradition of high Latty had a definite vision and plan being on the Board allows me to standards and aggressive recruiting to make Duke a national law school," become involved in broad policy in an effort to maintain the School's says Dean Pamela Gann '73. He issues concerning admissions." For reputation as a truly national school. personally recruited top students example, LSAC conducts empirical As former Duke Law Professor W. from around the United States to research on the Validity of the Law Bryan Bolich noted in a 1968 speech come to Duke and procured addi­ School Admissions Test and individ­ at a law alumni luncheon, the ob­ tional scholarships to support his ual test questiOns; addresses ethical jective of the School has always been efforts. questiOns involved in recruiting ap­ to "provide such a broad legal edu­ Debra O'Reilly, current Director plicants and the admissions process; cation as to prepare one for prac­ of Admissions for the Law School, and sets the fees and fee policy for tice in any state." That objective says that "Latty is noted for his work the test. remains the mission of Duke Law in expanding the diversity of the Prior to being elected to the School today. Law School. I have been told that LSAC Board, Swinson was active in In 1904, Samuel Fox Mordecai he would show up on college cam­ LSAC affairs through a subcommittee became dean of the Trinity College puses around the country and tell and work group. 'l\lthough being School of Law. The School quickly promising students he had identified active in the LSAC can be time­ set new standards of excellence in why they should come to Duke." consuming, it is professionally use­ legal education by adopting the case Latty's work was a tremendous suc­ ful and personally rewarding to par­ method as a basis for instruction cess. By 1967, the student body had ticipate in the governance process and by requiring three years of study grown to 340 students from forty through which current admission for the LL.B. degree. Trinity also es­ states and seventy-five colleges and policy questions are addressed," tablished high standards for admis­ universities. These students possessed Swinson states. She also notes that sion to the law program by requiring high scholastic credentials as well Duke has a history of involvement two years of prior college education. as other outstanding qualifications. with activities of the LSAC. "Pro­ These requirements were among Through the seventies and into fessor Deborah DeMott previously those adopted by the American Bar the early eighties, Assistant Dean served on the Board and was help­ Association in 1921 as part of an Charles A. Howell, affectionately ful in informing me about Board attempt to upgrade legal education known as "Charlie" to the Law activities." Swinson, who will serve DUKE LAW MAGAZINE / 22

information but also an attractive the world. Among their ranks are picture of the School's program." prominent lawyers, judges, legisla­ But Swinson is quick to add tors, government officials, corporate that professional admissions officers executives, and teachers, many of also serve as "informal resource whom are interested in helping the counselors to prospective applicants Law School attract and enroll the and students in the course of provid­ best candidates. Positive response ing general information about law to alumni contact convinced the Law schools and the admission process, School Admissions Office to make as well as specific details about their a concerted effort to expand alum­ individual schools." Dean Swinson ni involvement in the process. The also emphasizes that "pre-law ad­ Alumni Admissions Program (AAP) visors at institutions of higher learn­ was established in 1985, at the direc­ ing play an important role in coun­ tion of then-dean Paul Carrington. seling students about where to apply The Alumni Admissions Program and to enroll. The Law School Ad­ currently involves more than 180 missions Office is sensitive to the alumni coast-to-coast as volunteers. importance of pre-law advisors at Extensive use of alumni in the re­ undergraduate schools around the cruitment process is a unique feature country." of Duke Law School's admissions Dean Swinson also serves on program. 'l\lthough many undergrad­ the Executive Committee of the uate institutions use alumni in their Southern Association of Pre-Law recruitment efforts, as far as we know on the Board for three and a half Advisors (SAP LA), and attends con­ Duke is the only law school with years, emphasizes that "in order to ferences sponsored by several other such a program," O'Reilly proudly keep the admission process in per­ pre-law advisor associations. In 1985, states. spective, it is important to under­ Duke hosted the fifth annual SAPLA Alumni involved in the program stand the broader issues." conference, which brought one may work with the Admissions Of­ hundred pre-law advisors to campus. fice in either or both of the recruit­ Recruiting Qualified Applicants At last fall's SAPLA conference, held ment phases-spreading the word Admissions Director Debra at Wake Forest Law School, Swinson about Duke Law School to potential O'Reilly asserts that "in terms of chaired a panel on what pre-law students and/or talking to individual law school admissions, where you advisors should know about the applicants who have been admitted rank is incredibly powerful in deter­ admissions process. to the School and are trying to de­ mining a school's ability to attract cide whether to enroll. Dean Swin­ the most highly qualified applicants." Utilizing An Effective son notes that "with such a small Once you pass that hurdle, the Ad­ Alumni Network admissions staff it would be impos­ missions Office plays a critical role Swinson and O'Reilly have sible for us to recruit as effectively in enrolling the right applicants. adopted a blanket approach to re­ without the assistance of our alum­ Dean Swinson therefore sees "the cruitment across the country. Be­ ni. They are the best ambassadors objectives of our recruitment sys­ tween the two of them, they par­ for the School. They deserve a great tem as twofold. First, we inform ticipate in all five large regional law deal of credit for the success of our prospective applicants about what school forums sponsored by the Law recruitment program." Duke has to offer. Second, the Law School Admissions Council each Many alumni visit with pre- School assists accepted candidates year. Additionally, they respond af­ law advisors and undergraduates to make informed decisions as they firmatively to scores of invitations at nearby colleges and universities. consider their options. Prospective to attend law school fairs at colleges For instance, Jerry Novick '84 and students are more likely to make and universities by using the volun­ Marc Golden '88, both University intelligent choices when they have teer services of Law School alumni of Pennsylvania undergraduate alum­ sufficient information upon which who raised the Law School's ban­ ni, teamed up for a presentation at to base such important decisions." ner in dozens of cities and before their alma mater in Philadelphia this Thus, as O'Reilly states, "ad­ hundreds of prospective students year which attracted more than fifty missions can be seen as a public this past fall. attentive undergraduates. Alumni relations arm of the Law School. Duke Law School'S international Bill Blancato '83 and Jim Lilly '85 Admissions personnel are usually reputation for excellence is due, in spoke to students at Wake Forest the first and sometimes the only large part, to the visibility of Duke University in Winston-Salem, North contacts applicants have with Duke. Law alumni who are located through­ Carolina, the city where they both We must convey not only accurate out the United States and around practice. VOL. 7, NO.2 /23

Margaret A. Behringer '85 of have helped to accomplish this task graduates. Matthews believes that Charlotte, North Carolina has trav­ in a personal way. Under the cur­ "involving recent graduates is best eled to a nearby college to meet rent program, alumni are matched because they are better able to say with prospective students because one-to-one with a recently admitted something about recent events at she is committed to helping Duke student. The purpose of the pro­ the School." maintain its diversity "Duke needs gram is "to personalize the admis­ Chris Loeb '84, of Charlotte, to continue its efforts to attract sions process to an extent, but also North Carolina participates in the well-rounded students," she says. to serve as a recruitment tool by Alumni Admissions Program be­ In Vermont, Middlebury College linking a prospective student with cause he likes "helping out the Law played host to an annual visit by Dan someone who has gone through School." Loeb believes the program Jacobs '82, who notes that loyalty the entire Duke Law School cycle is successful because "meeting with to his undergraduate school as well from admissions to employment," the students and answering their as to Duke Law School spurs his says O'Reilly questions makes them feel that they efforts. "I am fond of both schools At a minimum, alumni call and are being seriously considered by and enjoy making a compatible congratulate the prospective stu­ the School. It also shows that Duke match between Middlebury students dent. They also make themselves Law alumni are deeply committed and Duke Law School." available to answer questions about to and involved in the School." Rick Hofstetter '82, who recruits Duke, life in Durham, and law as a Stanley Barringer '82 partici­ regularly at his alma mater, Indiana profession. Alumni are encouraged, pates in the program because of his University- BlOOmington, agrees. if at all pOSSible, to invite the pros­ experiences at Duke. As a graduate "With a clear conscience I can tell pective student to visit their law of Nyack College in New York, he Indiana University students that Duke firms and/or go out for lunch. This had "always heard the name 'Duke is a great place because it was a really is particularly useful because it pro­ UniverSity' mentioned in the con­ good experience for me." Michael vides a prospective student with an text of being an excellent univer­ Evers, now a rising third year, found opportunity to see a Duke lawyer sity. But I didn't even know what this contact to be effective. "My con­ successful in her or his career. '~d­ state it was in." When Barringer tact with Mr. Hofstetter as an un­ ditionally, it's a great way for our visited the area during his senior dergraduate personalized the admis­ geographically dispersed alumni to year, he dropped by the Law School sions process. I was no longer just keep in touch with Duke and to con­ without an appOintment to look a number, and that had a positive tribute to our efforts from where around. "Suddenly I found myself effect on my decision to come to they are," adds Swinson. set up with an appointment to meet Durham." Louise A. Matthews '69 was asked with the dean of admissions and to join the program by Dean Gann. attending a criminal law class. Two Enrolling the Class This spring she met with a pros­ weeks later I was accepted and de­ Duke Law School admitted only pective student and invited him to cided to come to Duke," he says. twenty percent of all applicants for lunch with two other recent Duke Barringer's personal experience with the Class of 1991. It is unlikely that the acceptance rate will increase for the next entering class. This reflects the intense competition for admis­ sion and the selectivity of the School. Most students apply to more than one law school and decide between or among those schools where they have been admitted. Thus Duke, like other law schools, accepts more students than it will enroll. The number of admitted students who enroll at Duke determines the "yield." Duke's yield has been in the thirty percent range for several years. Dean Swinson notes that once the Admissions Office has determined that an applicant will be an asset to the class and admitted that student, it is important to help the student see the advantage of choosing to enroll at Duke. Alumni in the AAP DUKE LAW MAGAZINE / 24

admissions at Duke makes him an tool. First, because Duke Law alum­ to be a chance to ask the "real" ideal representative for the School ni speak affirmatively about their questions about Duke as well as because he believes that "hearing experience at Duke. Then, the en­ law school in general. According to about real experiences is a crucial thusiasm of our current students O'Reilly, it is during these visits that supplement to the glossy brochures completes the process." prospective students begin to sense you receive from interested law From February until the end of the collegial though competitive schools." the school year, prospective students, atmosphere of Duke Law School. The best evidence of the success whether admitted or not, visit the Many students cite the size of of the Alumni Admissions Program Law School to help make their de­ the Law School community and the is the class of 1989-the first enter­ cisions. Swinson admits that "the friendly environment as reasons for ing class exposed to the program. current building does not present coming to Duke. One student from "The yield from the pool of appli­ an image consistent with Duke's Hawaii had visited the School in cants for the Law School was so trademark for distinct architecture. early May on his first ever trip to strongly affected by the program It was built in another era for a North Carolina. While here, he was that we had an overwhelmingly posi­ smaller Law School community. able to attend a Durham Bulls game, tive response which produced one However, if we can introduce the meet with Dean Gann and Dean of the largest classes in the history prospective student to some current Swinson without appointments, and of the School," says O'Reilly. students and faculty, their enthusi­ hold informal, casual conversations Another important asset of the asm can overcome the limitations with students. Admissions Office is the current of the physical facilities. Of course, For Dara Grossinger '91 , this student body. "We feel that if we we look forward to presenting a posi­ contact with the students was def­ can get a prospective student into tive image on both fronts when our initely the selling point for Duke: contact with an alumnus or alumna building is renovated and expanded." "Honestly it's the people that got and then get the prospect to meet The Admissions Office will send me down here. All the schools I students here, we can convince the the visiting prospective student to looked at had good reputations, but prospective student that Duke is first year classes and to lunch with the closeness between and among the place for her," states Gann. "This current students. Many applicants students and faculty at Duke was networking is an effective recruitment find the interchange with law students important to me." States Gann, "This

Members of the class of '89-the first class exposed to the Alumni Admissions Program-celebrate their graduation. VOL. 7, NO.2 /25

demonstrates how important stu­ O'Reilly. Minority enrollment ac­ endowment for scholarships is an dent contact and good will are to counted for eleven percent of the important goal for the Law School's a successful admissions program." 1988 entering class and the number fund raising efforts over the next of black students doubled-in part few years. due to personal attention to admit­ Duke Law School is also inter­ Maintaining Diversity ting these applicants. (See related ested in maintaining diversity among Because of Duke's commitment story on BLSA Weekend.) age groups. The Faculty/Student Ad­ to maintaining high standards for Dean Gann points out that "geo­ missions Committee looks favorably admission as well as a diverse stu­ graphic distribution has made it on increasing the enrollment of older dent body, the Admissions Office particularly difficult to attract Asian­ students interested in returning to spends time recruiting students who Americans to Duke. But, with the law school. Though sixteen percent can add something special to the assistance of our alumni, like Pauline of the 1988 entering class was twenty­ law School environment. Dean Gann Ng '89, who will be working in Los five or older, the median age of explains, "Diversity means where a Angeles, we will try to enhance those that class was twenty-two and the student is from, their school, socio­ recruitment efforts." It is important average age was twenty-three. economic background, ethnicity, to note that Duke does not have According to Dean Gann, re­ and age. Here, we are extremely specific numerical goals for minor­ cruiting older students is particular­ diversified, but we have to work ity recruitment or enrollment. "Our ly difficult because "most people at keeping our diversity in many actions are influenced to a degree have to move to attend law school. areas." As an example, Gann notes by the size and qUality of the appli­ For older students, this means they that sixty-eight percent of current cant group. We review each applica­ have to quit their jobs, pack up their Duke students come from the East tion for evidence that the individual families, and relocate to Durham. Coast. "Hence, the Admissions Office can handle the work at Duke," says Many are unable to do this. Even concentrates some of its efforts on O'Reilly. "We want our students to though we have a good number of recruiting students from the West succeed and seek to insure that ad­ older students enrolled in the pro­ and Midwest regions of the country." mitting an applicant will be neither gram, this number is low relative Dean Swinson indicates that a disservice to the student nor to to older students enrolled in urban "geographic balance is one of many the Law School." law schools." factors we consider in seeking to Women represented forty-two Because Duke is a national achieve diversity in each class." Notes percent of the students in the 1988 school, many people do not recog­ O'Reilly, "someone from Iowa who entering class. Nationally, the per­ nize the importance of North Caro­ has done farm work will be differ­ centage of women enrolled in all lina as a home for the School and ent from a person who grew up ABA-approved law schools was also its alumni. The Office of Admissions in Manhattan, but each student we forty-two percent. The Law School has made a concerted effort to re­ enroll has something Significant to continues to encourage women to cfl,lit North Carolinians. For the class contribute to the law School expe­ apply and seeks to maintain the of 1991, that effort was quite suc­ riences of his or her classmates in strong representation of women cessful. Despite serious competition addition to what is taught in a class." in future classes. with the University of North Caro­ In addition to enrolling students Duke seeks to enroll students lina at Chapel Hill (UNC) and its from around the country and from from different economic back­ low in-state tuition, the Duke Law a large number of undergraduate grounds, as well. "Maintaining di­ class of 1991 boasts eighteen North schools, Duke law School seeks versity by income has been and Carolinians-the second highest to enroll students from a variety continues to be a serious problem number of students from anyone of backgrounds. Says Swinson, "en­ for all private institutions," says Dean state. Dean Swinson notes that "since rolling students from diverse back­ Gann. "Duke admits students regard­ 1985 ten percent of the students in grounds enhances the intellectual less of their financial need. Financial each entering class have been North and social aspects of the learning assistance in the form of scholar­ Carolinans. That is a significant im­ process for all class members by ships, loans, and work-study is made provement from some earlier years providing different perspectives." available to as many students as when the enrollment of North Caro­ Maintaining ethnic diversity is possible. But there is not enough linians dropped below five percent." an important goal for the School. money available to give to every John R. Hairr III, '90, a Raleigh "We monitor the black, native Amer­ student who needs it." As a result, native and an undergraduate alumnus ican, Asian and hispanic applicant some students who meet Duke Law of UNC, plans to work in Charlotte pools. We are especially attentive School's high standards and are ac­ this summer. He notes, "if we can to black and native American ap­ cepted for admission are unable to just get them [North Carolina resi­ plicants because these two groups attend Duke and opt for less costly­ dents] to realize that it makes sense historically have been discriminated and often less prestigious-legal edu­ to practice in North Carolina with a against in North Carolina," says cation. For this reason, increased Duke Law degree, we will get even DUKE LAW MAGAZINE / 26 more North Carolinians. We need to let them know the extent of the Duke law network throughout North Carolina firms." Because of the School's desire to increase its exposure abroad, the Admissions Office is particularly in­ terested in attracting degree candi­ dates of foreign origin. Duke receives hundreds of applications each year from international students. Dean Gann points out that "any top-ranked university must think globally. What­ ever we do internationally, foreign lawyers must be involved. Given the internationalization of legal prac­ tice and the increased mobility of attorneys, firms are interested in hir­ ing students with training in inter­ national law and international law­ yers with U.S. connections." Judy Horowitz, Associate Dean for International Studies, works close­ ly with the Admissions Office to Debra 0 'Reilly, Director of Admissions select international students for the three-year J.D. program. Additionally; Horowitz devotes much of her time applicatiOns, though applicants are lent. They work very well as a team to directing the international LL.M. encouraged to complete their ftles and their efforts are highly com­ program in which international at­ by mid-January. Review of completed mendable." Meanwhile, the Admis­ torneys come to Duke for one year applications begins in December sions staff is looking forward to to work towards the LL.M. degree. and continues until the class is filled. having new quarters when the law To date, Duke law School has more Applicants begin receiving responses School building is expanded and than one hundred international alum­ as early as January. This policy al­ renovated. ni located in more than twenty-five lows the Admissions Committee to Swinson and O'Reilly ensure countries around the world. grant the most competitive appli­ that all individual applications are cants admission as soon as possible, reviewed. They make recommenda­ The Process while releasing those who are less tions to the Faculty/Student Admis­ The Admissions program requires competitive. sions Committee. Though student year-round cultivation. Requests for At the law School, Debra O'Reilly committee members are asked to information and applicatiOns begin oversees the application screening participate in policy discussions and arriving in April and MaY-Sixteen and selection process. Because of decisions, only faculty members re­ months before those students will space limitations in the law School view the applicatiOns. At Duke, as be enrolling in law school. For the building, the Admissions Processing at many law schools, the three most class of 1991, the law School re­ Office is located three miles away important criteria considered in re­ ceived a record fourteen thousand from campus in the Pickett Road viewing an applicant's ftle, in the inquiries. annex. "The divided office arrange­ order of importance, are the law In the fall, following the ma­ ment, with Dean Swinson in the law School Admission Test (LSAT) score, triculation of the previous class, the School and our offices on Pickett the undergraduate grade point aver­ most intense recruiting for applicants Road, creates many problems in age (GPA), and the undergraduate goes on as alumni, staff, faculty; and work flow and communications," institution attended. students speak to prospective appli­ states O'Reilly. Although reliance on purely cants through law fairs, college­ She says that visitors to the academic criteria is appropriate in sponsored professional-school days, Pickett Road building are kept to making some decisions, particuarly and visits to colleges and student a minimum because "it's not the those involving candidates either groups. face we choose to show the public. clearly admissible or clearly inad­ Under the law School's "rolling But we try to do the best we can missible, the majority of applicatiOns admissions" system, there is no for­ with what we have." Swinson adds fall between these extremes. For mal deadline for the submission of that, "the Admissions staff is excel- these applicatiOns, Duke will give VOL. 7, NO.2 /27

careful consideration to more sub­ by both schools, the applicant is private institution like Duke, as well jective factors such as proven ca­ automatically eligible to participate as the debt burden of students who pacity for leadership, dedication to in the established joint degree borrowed heavily to fmance their community service, excellence in program. undergraduate education. We genu­ a particular field, motivation, grad­ Duke Law School admits very inely try to help make legal educa­ uate study in another discipline, few transfer students because very tion at Duke affordable for as many work experience, extracurricular few students leave the program. students as possible. Unfortunately, activities, and personal and charac­ Occasionally students do leave for the pot of funds isn't large enough ter information provided in letters personal reasons, creating space in to subsidize all students who seek of recommendation. Also, in inter­ the second year class. A transfer scholarships." preting the applicant's GPA, judg­ applicant must present evidence of After the Financial Aid Committee ments must often be made regarding the satisfactory completion of one determines scholarship awards, the the strength of the course of study year of study at any law school that Law School's Financial Aid Coun­ pursued and the significance of class is a member of the Association of selor, Mary Hawkins, advises students rank or the progression of grades. American Law Schools, and be eli­ about loan programs and eligibility No quotas are employed in the gible for readmission to that school. criteria. admissions process. However, be­ To be given serious consideration Dean Swinson describes Hawkins cause the Law School makes a con­ for admission, an applicant should as "very dedicated and professional." scious effort to achieve a broad di­ rank in the top third of the class. She adds, "Mary works closely with versity in each entering class, an Two academic years of law study entering and upperclass students individual student may be selected must be completed at Duke. assessing their fmancial aid pack­ not only for his or her marked po­ ages and in exploring alternatives." tential for academic success, but Financial Aid It is not unusual for fmancial also because application materials Dean Swinson, who chairs the aid packages at Duke to include a indicate that he or she can bring to Law School's Financial Aid Com­ combination of scholarship and loan Duke unique personal qualities or mittee, describes the admissions funds. According to Hawkins, "at talents that will enhance the overall process as being "aid blind." The least half of our students receive a character of the entering class. fact that a student has requested combination of grants and/or loans." Procedures for admission to the financial assistance has no bearing Though Duke's admission decisions summer joint degree programs are on the decisions of the Admissions are made independently of an appli­ no different from those established Committee. Requests for aid are con­ cant's fmancial need, in many in­ for the regular ].D. program com­ sidered by the Financial Aid Commit­ stances a prospective student's de­ mencing in the .full semester. Graduate tee after the Admissions Committee cision to enroll may depend on the school admission tests are not re­ has decided to extend offers of ad­ availabiltiy of fmancial aid. quired. Students must elect whether mission. The role of the Admissions Office they wish to be considered for en­ The Financial Aid Committee is crucial to the life of Duke Law trance in the summer or fall, and consists of three faculty members School. Admissions must first bring may not be considered concurrently who meet regularly with Dean Swin­ top students for professors to in­ for admission to both programs. son during the spring to consider struct in the law. In turn, the best The selection process for M.A. fmancial aid requests. Swinson notes and most accomplished professors applicants is bifurcated. Upon a favor­ that the Committee "works very seek intellectually challenging stu­ able decision by the Law School hard to review requests for schol­ dents to teach. Because of the top Admissions Committee, the appli­ arships in a timely manner after the quality students and faculty, law cant's me will be forwarded to the Admissions Committee accepts appli­ firrns, judges, and corporations then appropriate Graduate School depart­ cants. The Financial Aid Committee seek to recruit Duke graduates to ment for review, and applicants must understands that an acceptance from work with them. The end result is be formally admitted to the M.A. Duke may have little meaning be­ that admitting the best and bright­ program by the Graduate School. fore notification is received about est students to Duke Law School Applicants for any of the other scholarships by those who requested continues to enhance the value of joint degree programs offered by assistance." the Duke Law degree and to main­ the Duke Law School are considered The Law School has a long­ tain a reputation as an excellent in­ for admission to both schools on standing practice of not requesting stitution for training young lawyers. the same basis as those applicants enrollment deposits before accepted who are applying for the individual candidates are informed of the de­ programs. The admission decision cision on their fmancial aid requests. This article is the result of contribu­ of one school has no bearing on Dean Swinson emphasizes, "the tions from Claude A. Allen '90, john the admission decision of the other Committee is keenly aware of the S. DeGroote '90, Evelyn M. Pursley school. If accepted for admission high cost of legal education at a '84 and Gwynn T. Swinson '86 DUKE LAW MAGAZINE I 28

BLSA Recuittnent Conference

Though the number of black rollment, Tanya Martin, third-year reinforces the fact that black stu­ law students at Duke remains small, law student and BLSA Alumni Co­ dents here are not socially or intel­ the Admissions Office and the Duke Chair, perceived that it was "slow, lectually isolated. This is a crucial Black Law Students Association but steady. The enrollment numbers factor that helps increase black ("BLSA") are committed to aggres­ are so small that when we see an student enrollment." sive recruitment of qualified black increase, say, from six blacks to students. Gwynn Swinson, Associ­ twelve, we've doubled our numbers. Alumni Presence ate Dean for Admissions, explains What we have now is a big differ­ Last year marked the first time that "the Law School is very sensi­ ence from ten years ago, when we that BLSA invited Duke Law School's tive to the fact that our enrollment only had one or two black law stu­ black alumni to its Recruitment Week­ of minority students is less than we'd dents." According to Martin, BLSA's end. About twenty-five attended, like it to be. Minority enrollment at purpose in sponsoring the Recruit­ and the feedback from alumni and Duke Law in 1988 was eleven per­ ment Weekend "is to promote the prospective students alike was so cent, while in 1987, only five percent Law School as an attractive alter­ positive that BLSA invited the alum­ of the students receiving].D. de­ native for minority applicants. By ni to return this year. The alumni grees at ABA-approved law schools showing the students the congenial also helped to actively identify and were minority students. Thus, Duke environment of Duke Law, we hope recruit potential students. At the is not out of step with national law to entice them to enroll here." Conference, they led panel discus­ school enrollment patterns, but we're Twelve black students entered sions and attended scheduled activ­ not content. We have a genuine Duke Law School's class of 1991. ities, where they discussed their commitment to expand the diver­ Swinson feels that last year's BLSA experiences in the legal profession sity of our student body and the Recruitment Weekend played an and answered questions. "The pres­ legal profession." important role in persuading many ence of our black alumni can't be To that end, the Third Annual of the prospective black students emphasized enough," Swinson said. Black AlumniIRecruitment Confer­ to seriously consider enrolling at "It ties the whole Weekend together ence was held February 24-26. BLSA Duke. She observed that "regard­ because contact with the alumni invited selected black applicants, less of ethnicity, some prospective enables prospective students to learn identified by Admissions, to spend applicants don't seriously consider about the benefits of a Duke Law a weekend at Duke Law School. Duke because of the high median School education. Students can ask The prospective students had the LSAT and GPA for each entering about career paths, options, and opportunity to attend class, meet class. And for black applicants lack­ the placement services available at with faculty and administrators, par­ ing previous ties to the South, some the Law School. They can see that ticipate in roundtable discussions Southern stereotypes are a negative our black alumni, though small in with students and alumni, and get public relations factor which Duke number, are extremely successful a firsthand view of student life at must work to overcome. These two in the profession." the Law School. Months of planning factors may discourage applications Swinson added that the alumni by BLSA, coupled with fmancial and enrollment by blacks. The BLSA provide "positive reinforcement of and administrative aid from the Ad­ Weekend is one way to help address the overall quality of legal educa­ missions Office, culminated in this these concerns." tion, student life and career oppor­ Conference which Dean Swinson Swinson believes that when Ad­ tunities for Duke Law students and called "the best Recruitment Week­ missions can identify competitive graduates. They emphasize that Duke end we've had, judging from the candidates in Duke's applicant pool provides an excellent entree to the response of the participants and and persuade them to look at the legal profession and is very com­ the alumni." campus, talk with the students and petitive in the national job market." professors, and observe a class, "they The alumni presence during the Recruitment Weekend's Role are pleasantly surprised by the gen­ Weekend also provides an interest­ When asked about Duke's prog­ uine feeling of camaraderie among ing historical perspective of where ress in increasing black student en- the students. The BLSA Weekend Duke Law graduates have gone and VOL. 7, NO.2 I 29

Associate Dean Gwynn Swinson (left) meets with prospective students during the BLSA Recruitment Weekend. how attitudes have changed. Martin receives the aid of the Admissions and campus tours, informal meet­ observed that "when blacks fIrst Office. Swinson was very pleased ings with faculty members, and the started graduating from Duke Law that the administration, under Dean opportunity to attend a fIrst-year School in the late sixties and early Gann's initiative, budgeted for fund­ class. BLSA sprinkled social activi­ seventies, they wanted to avoid the ing specillcally to assist BLSA in plan­ ties throughout the day as well. On South. A lot of visible prejudice ex­ ning and coordinating this year's Saturday, the prospective students isted there. Attitudes have changed Conference for the fIrst time. Ac­ were busy with BLSA-sponsored over time, and prospective students cording to Swinson, these funds panels and roundtables. These dis­ can see that Duke's black graduates enabled the Admissions Office to cussions addressed the recent Su­ now practice throughout the nation." playa greater role in helping to orga­ preme Court decision on minority The BLSA Conference is held nize the Weekend. Admissions helped set asides (City of Richmond v. j.A. in conjunction with Duke Law produce the invitation letters, com­ Croson Co., 109 S. Ct. 706 (1989) ), School's annual Conference on Ca­ pile the responses, and schedule and posed hypothetical circum­ reer Choices at which Duke Law events. The Office also worked to stances which a black attorney might alumni lead panel discussions about ensure constructive contact between face in a mostly white practice. Sat­ the particular career paths they have faculty and the prospective students. urday's activities culminated in cock­ chosen. BLSA invited the visiting Swinson intended a higher faculty tails and a banquet at the Sheraton students to attend a variety of the proftle in this year's Conference. She University Center. Career Choices panels. Swinson is personally contacted faculty mem­ delighted that the two conferences bers to ask for their participation at Weekend's Effectiveness coincide, since the Conference on lunch or at informal meetings with Lasting impressions had already Career Choices offers an additional the students, receiving very positive been made long before the conclu­ opportunity for the prospective stu­ responses from the faculty, whom sion of BLSA's Recruitment Weekend. dents to learn about the myriad ca­ she said were "most willing to par­ The prospective students questioned reer optiOns open to Duke Law ticipate in the Weekend." had formed an enthusiastic opinion graduates. With the resources and assis­ of Duke Law School by the time tance of Admissions, BLSA was able Friday's schedule had begun to wind The Conference to offer a full agenda of activities to down. Asked why he had chosen BLSA members devote much of the nineteen prospective students to attend the Weekend, a prospec­ their time and energy toward orga­ and ten alumni attending the Con­ tive student from the University of nizing the Recruitment Conference. ference. On Friday, February 24, the Georgia commented that "if you're In addition to BLSA's own efforts, it students' day included Law School looking at a lot of good law schools, DUKE LAW MAGAZINE I 30

of the students and faculty surprised another prospective student. She had been uncertain of what to ex­ pect and explained that "a prospec­ tus can't describe what the atmo­ sphere of a law school is really like." Asked to articulate what unique attributes Duke law School possesses to attract the prospective black stu­ dent, Swinson herself responded, "The personality of Duke law School is very impressive. It is much less intimidating than prospective students perceive it to be. Once they come here, the students love the campus. They are impressed by the small size of the law School and its spirit of collegiality. The School sells itself once they come to visit." If a mere visit will successfully recruit a potential student, then the addi­ Professor Sara Beale discusses life at Duke Law School. tional perspective gained by attend­ ing BLSA's Recruitment Weekend a weekend like this helps set the first-year property class that morn­ will certainly persuade more pros­ school apart. You can see firsthand ing, and was impressed with the pective black students that they why its a good law school, instead students' attitude. "They seem really belong at Duke law School. of going on what you've heard or motivated, but not superficial or read." The student had attended a cutthroat," he said. The friendliness Karen Cashion '90

A panel of the Conference on Career Choices held in conjunction with the BLSA Recruitment Weekend.

DUKE LAW MAGAZINE / 32

as a legal clerk in a law office. Faculty Profile After about a year, the army fmally decided to make Havighurst a first lieutenant. Before he actually Health Law Expert received his promotion, however, the surgeon general's office decided Clark C. Havighurst that his back problems were such that he could not become an offi­ cer. Ironically, the day he received this news, he was assigned to a de­ tail moving safes. "I was laughing so hard, I almost dropped one," he recalls. Havighurst decided that it was time to get out of the army and get on with his legal career. "I was twenty-seven years old with a law degree assigned to k.p. (kitchen police)," Havighurst recalls. Anxious to put his legal edu­ cation to use, Havighurst began to look into alternative ways in which he might complete his military obli­ gation. Fortunately, a fellow law clerk in the army had spent some of his free time researching that question and had discovered that one alter­ native was to do work in the pub­ Clark Havighurst, who presently The Path to Duke Law School lic interest. When his friend found serves as the William Neal Reynolds Havighurst received an early such a job and left the military, he Professor of Law at Duke Univer­ exposure to the law. He was born left Havighurst with the ftles con­ Sity, began his relationship with Duke and raised in Evanston, Illinois, taining his research. Law School somewhat fortuitously. where his father was a law profes­ One of the opportunities in the Upon discovering that a history of sor and, later, dean of Northwestern ftle was the research associate posi­ back troubles made him ineligible Law School. Even so, Havighurst tion at Duke Law School. Havighurst to become an officer in the mili­ did not know that he wanted to spent one year working on a Small tary, Havighurst applied for and attend law school until shortly be­ Business Association grant under was chosen to be a research asso­ fore he graduated from Princeton the direction of Professor Hodge ciate at Duke Law School. Thus, he with a degree in English. "I can no O'Neal. During that year, he wrote left the military five months early longer reconstruct my decision to his first book-on deferred com­ to do work in the public interest go to law school," Havighurst says. pensation for key employees. In on a small business grant at the "It was not in my mind when I went 1961 he returned to New York as Law School. "But for that experi­ to college. It just turned out to be an associate for what is now the ence," Havighurst said, "I would the logical thing to do." law firm of Debevoise & Plimpton. never have had any connection Havighurst entered law school He worked primarily in the areas to Duke." at Northwestern immediately after of securities and corporate law. That connection resulted in a graduating from Princeton. After Several years later, E.R. CJack") twenty-five year relationship between receiving his law degree he joined Latty, then dean of the Law School, Duke Law School and Havighurst, a law firm in New York. But shortly offered Havighurst the opportunity who began his teaching career at after his arrival in New York, Havig­ to teach at Duke. "I wasn't really in Duke in 1964. In addition to teach­ hurst was drafted into the military. the market for a teaching job, and ing antitrust law, he has a particular He entered the army with the inten­ whether I ever would have sought academic interest in the field of tion of becoming an officer. "I ap­ one is unclear," Havighurst says. He health care law and national health plied for the Army JAG Corps and found the offer to teach especially care policy. He has also taught courses I went through basic training think­ appealing, however, because it in­ on securities regulation, corporate ing that at any minute I might be­ cluded the opportunity to edit Law insiders' problems, regulated indus­ come a first lieutenant and outrank and Contemporary Problems (L&CP), tries, administrative law, and legal my company commander;' he recalls. which was then a faculty-edited accounting. But instead, Havighurst was assigned publication. Havighurst describes VOL. 7, NO.2 I 33

this opportunity as extremely at­ the government saying 'you must cluding a chance to spend a sab­ tractive because "it seemed like a be an expert in health law prob­ batical year (1972-73) at the newly wonderful way to broaden my hori­ lems.' " The government contacted formed Institute of Medicine of the zons and explore some things that Havighurst because it was interested National Academy of Science. At the I had never had time to consider in encouraging more academic work time, very few people were writing at length. While I was happy in the in law schools on problems related on health care law. Havighurst ad­ law practice, it seemed that teach­ to health law. mits it is much more difficult to get ing would be an interesting thing This phone call from the govern­ anyone's attention nowadays because to try out." He thOUght Duke was ment led to Havighurst's organization so many more people are writing an up-and-coming law school, and­ of a committee on legal issues in on these topics. It is doubtful, how­ having spent time in Durham when health care. The committee consisted ever, that Havighurst himself has he was a research associate-he be­ of twelve members, including aca­ trouble attracting attention, having lieved the area had potential and demics, who worked in various established himself as one of the offered "a nice life." phases of the field. It convened sev­ foremost authorities in the field Before leaving private practice eral times to talk about the emerg­ of health care law. in New York and moving to Durham, ing issues in health law, encouraged Jim Blumstein, professor of law Havighurst bought his Porsche 356c law reviews to cover health issues, at Vanderbilt and former visiting in Europe. Today, twenty-five years and held a few conferences. This professor at Duke, calls Havighurst later, he still drives that Porsche. His activity eventually led to a two­ a "major figure" in the health care positive feelings about Duke and volume symposium in L&CP. "While field. Blumstein also has a special Durham have been equally long-lived. I was working on those things I be­ academic interest in health care law He and his wife, Karen, a graphic came increasingly aware of how the and worked with Havighurst when designer who also owns her own health industry was changing and he was a visiting law professor at special-events business and plays how a lot of the problems that were Duke in 1974. Blumstein says Hav­ the harp, raised two children in arising were amenable to scholarly ighurst was a true pioneer in the Durham. Their son graduated from attention from the perspective that application of marketplace principles Northwestern last year, and is cur­ I had developed in antitrust law, to the health care industry. "When rently traveling in Europe, and plans economic regulation, and the law Havighurst started writing about to enter Duke's public policy pro­ and economics approach," Havig­ these issues in the early '70's," gram in the fall. Their daughter just hurst recalls. "The more I looked, Blumstein said, "legal doctrine and finished her sophomore year at the more interesting those prob­ common perception was that mar­ Davidson. lems became." ketplace principles and the health Although Havighurst enjoyed This realization led Havighurst care industry were not compatible." practicing law in New York, he soon to write an article on health main­ That presumption has changed, ac­ decided that teaching had a special tenance organizations (HMOs) in cording to Blumstein. 'l\lthough no appeal for him. "you don't have L&CP. In the article, Havighurst one individual was responsible for the same pressure upon you," he argued that HMOs might make the this change in attitude," he says, says, "which is an awfully nice fea­ health care industry competitive in "Havighurst was certainly one of ture. You are able to set your own ways that it had never been. This, the most influential, articulate advo­ agenda to a great degree and do he argued, might help control the cates of the application of market­ things that interest you." cost of care and improve the sys­ place principles to the health care tem's ability to allocate resources industry." Health Law Expert efficiently. Up until this time the In 1978-79, Havighurst spent The agenda of interest that Havig­ fact that Havighurst was editor of a year on sabbatical at the Federal hurst set for himself at Duke involved L&CP meant that most of his early Trade Commission (FTC). During that health care law. Like his relation­ scholarship had been published un­ year, Congress, with Havighurst's ship with Duke, Havighurst's interest der other people's names. His article help, amended the 1974 federal in this area of the law developed on HMOs was one of the first to be health planning legislation, making somewhat fortuitously. As editor of published under his own name and explicit remarks about competition L&CP, he took a suggestion from the marked the beginning of what was in the health care industry and how dean that the Law School should do to be a prolific writing career in competition might be desirable. something with the Medical School. the area of health care law. "From Havighurst calls this "a significant Havighurst worked with medical that point on, it turned out that the shift in Congressional thinking . . . faculty to do a symposium in L&CP health care industry offered an un­ because the idea up to that point called "Medical Progress and the limited set of topics for original re­ had been that regulation would have Law." "Because I had my name on search and writing," Havighurst says. to solve all the problems and that that issue of the journal," says Hav­ Havighurst's work during this there was no room for competition ighurst, "I got a phone call from period attracted some attention, in- in the industry." DUKE LAW MAGAZINE / 34

It was not only through his people interested in health care law. one of the top people working on writing that Havighurst contributed "A number of students and research legal issues in the health care indus­ to bringing about this change in assistants have been associated with try as a scholar and commentator, thinking. While he was at the FTC, the program under Professor Hav­ but he has also developed a very Congress voted down a proposal ighurst and have gone on to be very sophisticated casebook for teaching by the Carter Administration to regu­ important in the field," he says. One purposes." She says that what is par­ late hospital rates across the board. example is Glenn Hackbarth '77, ticularly unique about Havighurst, Havighurst participated in the Con­ who worked for Havighurst in 1979- as well, is the fact that he studies gressional hearings, including Sen­ 81, before joining the Department the health care industry as a whole, ate and House debates between ad­ of Health & Human Services, where rather than isolating the various as­ vocates of more regulation and advo­ he held important policy jobs, even­ pects such as antitrust or medical cates of less regulation and more tually becoming Deputy Adminis­ malpractice. competition. Eventually, Congress trator of the Health Care Financing When Havighurst returns from began to lean towards less regula­ Administration. his sabbatical in Washington, DC, tion and more competition. "To Warren, who describes Havig­ he will continue to teach health care my mind, 1979 was a watershed hurst as "one of the gurus of the law and antitrust courses. He is con­ year in health policy," Havighurst field of health care law," says that cerned with the fact that fewer and says. He also believes it is of some Havighurst was not only one of the fewer law students are enrolling in interest that this shift in Congres­ original proponents of analyzing the the antitrust course. "I think it is sional thinking occurred before the health care industry from a market­ an important part of any lawyer's Reagan Administration took office. place viewpOint, but also a very early education to understand something Also while at the FTC, Havighurst advocate of no-fault insurance for about how competitive markets worked on a book on deregulating the medical malpractice problem. work or don't work," he says. Hav­ the health care industry, which he Although not yet a reality, says War­ ighurst suspects that many students completed in 1982. The book covers ren, the idea is receiving active con­ are not taking the course because the federal health planning legisla­ sideration right now. law firms have indicated during inter­ tion passed in 1974 and amended views that antitrust activity is down in 1979. The FTC's work in enforc­ The Future and that their practices in that area ing the antitrust laws in the health Havighurst will be on sabbatical are not growing. "Whether or not care industry was just getting into again during the 1989-90 academic that is where the legal work is at high gear when Havighurst was at year in Washington, DC, this time the moment, it is still an important the FTC, which allowed him to con­ in the private sector. He will be with part of a legal education," Havighurst tribute in that area also. Havighurst Epstein, Becker & Green, which has asserts. "Students are neglecting was elected as a member of the a health care law practice. He plans what I think is a fundamental sub­ Institute of Medicine in 1981. to spend a lot of his time writing, ject on the grounds that it doesn't At Duke, Havighurst has enjoyed particularly regarding policy issues. seem to be marketable at the mo­ the benefit of several government Havighurst does not yet know pre­ ment." Havighurst says the course grants that have supported his work cisely what issues or problems on is also important because it provides in the health care area. The Law which he will focus. "I fmally feel some economics that one might School's Program on Legal Issues like I have said something fairly not get from other law courses. in Health Care, of which Havighurst defmitive about just about every Havighurst believes that the was director, attracted quite a bit problem [in the health care area] course in health care law is more of funding in the 1970s and early that interests me," he said. than just preparation for practice in 1980s. The grants gave him access The sabbatical will allow Hav­ a specialized field. According to him, not only to secretarial and research ighurst to get back into the policy the largely amorphous and unset­ help, but also allowed him to em­ process as well. For the past couple tled legal framework within which ploy a full-time attorney. of years he has been working on a the health care industry currently David Warren '64, who teaches casebook, Health Care Law and operates provides a unique oppor­ medical law and hospital law at Duke POlicy, which has taken him out tunity to study the operation of legal Medical School and also coordinates of the policy arena to a degree. It institutions and the interplay of law the ]D/MD program with Havighurst, is the second casebook in the field. and policy: The course also provides says that Havighurst has made a ''I'm probably not the most objec­ lessons in ethics, professionalism, tremendous contribution to the field tive source but I'm content with and professional regulation that, ac­ of health care law with the Program the way it turned out," Havighurst cording to Havighurst, carry over on Legal Issues in Health Care. War­ says. A more objective source, Dean to the law student's own profession. ren is particularly impressed by the Pamela Gann, says that one of the fact that Havighurst has worked with things that is so impressive about Diane Morse '90 and provided guidance for young Havighurst is that "not only is he VOL. 7, NO.2 I 35

Alumnus Profile Solicitor General, Lawyer for the United States Kenneth W Starr '73

In July 1983, when Ken Starr spring as solicitor general of the went before the US. Senate Judi­ United States, a post that has served ciary Committee as President Ronald as a springboard to the Court for a Reagan's nominee to the US. Court number of justices, including William of Appeals for the District of Colum­ Howard Taft, Stanley Reed, Robert bia Circuit, then-chairman of the Jackson, and Thurgood Marshall. committee Strom Thurmond asked (Former Solicitor General Robert Starr, who had been serving as coun­ H. Bork was nominated for the Court selor to the US. attorney general, by President Reagan in 1987, but was whether it was appropriate for Justice rejected by the US. Senate.) Department officials to go straight to the federal bench. "Mr. Chair­ Coming to the Law man, I do not foresee any difficul­ Starr's life history reveals a long­ ty," Starr replied. "The chief justice, standing interest in politics and pub­ whom I was privileged to serve [as lic office. Starr was born in Vernon, a law clerk], came directly to the Texas, in 1946 and grew up in San Court of Appeals for the District of Antonio. He studied political science Columbia from the Justice Depart­ at George Washington University in ment Civil Division. Justice White Washington, D.c. , and went on to came from the Office of Deputy pursue a graduate degree in political Attorney General." science at Brown. At the time, his A bit later in the hearing, Sen­ hope was to combine an academic At forty-two, Kenneth W Starr ator Arlen Specter asked whether career with electoral politics. But '73 is the new US. Solicitor General. being only thirty-seven years old after his years in Washington, watch­ For most lawyers, this position as would be a disadvantage to Starr ing politicS close up, he found him­ the federal government's chief advo­ on the bench. "I think not surpris­ self frustrated with the theoretical, cate before the US. Supreme Court ingly, Senator, that it is an advantage," quantitative approach of academic would be the pinnacle of a legal Starr replied. "It is not without pre­ political science. career. Starr, however, who is leav­ cedent. In fact, Justice Story was "I was not keen on what I saw ing the US. Court of Appeals for the appointed to the Supreme Court at on the horizon [for political sci­ D.c. Circuit for the new position, is the age of thirty-two. The first chief ence ]-a very strong emphasis on now widely viewed as a leading justice of the United States was chief the quantitative, on crunching num­ contender for any Supreme Court justice of the State of New York at bers, and on the use of computers," vacancy that might occur during the age of thirty-one." he said. "Not only was it slightly the Bush administration. Supreme Court appointments intimidating, but it was not an area In an interview shortly before were even then very much on Starr's I was particularly interested in." his confirmation, Starr did not dis­ mind. Since his elevation to the D.c. After receiving his A.M. degree avow interest in a move to the Su­ Circuit, his name has increasingly from Brown, Starr spent a year as preme Court. "I don't know any been mentioned by others as a pos­ a program/escort officer for the US. lawyer who would not be honored sible Republican appointee to the State Department's Bureau of Edu­ by the opportunity-but one can't Court. That speculation has taken cational and Cultural Affairs (now plan one's life around it," he said. on renewed urgency after Starr's part of the United States Informa­ "I loved being a judge." nomination and confirmation this tion Agency), arranging tours of the DUKE LAW MAGAZINE / 36

United States for students from sub­ In a recent interview, Pamela pinning of the law. Duke has re­ Saharan Africa. Then he decided Garm recalled Starr in his student mained on the traditional end of on law school as the best vehicle days as "extroverted, comfortable that spectrum." In addition, law for his ambitions, picking Duke be­ with himself, likable. He brought schools today place more emphasis cause "it was a good school, and out the best in people around him." on specific-skills training, Starr said. they gave me a modest amount of She remembered Starr as a moderate This change is not entirely favor­ fmancial assistance." Republican. "I never identified him able either, in his opinion. Simu­ Starr married Alice Mendell in as an extreme. I did identify him as lated practice can lead students into the spring of 1970 and entered Duke a politically engaged person. I think empty posturing. "There is a limit that fall . Alice Mendell Starr fmished we would have predicted that if any­ to playing lawyer without a very her undergraduate studies at Duke. one in the class would have gone strong foundation in substantive It was "a wonderful place for us," into public service of a prominent areas of law." Starr said. "We studied together in nature it would be Ken. He was al­ Starr said that Duke Law School the basement of the law library." (The ways drawn toward a career in pub­ is now more "interdisciplinary in Starrs today have three children.) lic service-it could have been elec­ thrust-and I view that as an ex­ Starr found law school itself tive or the route that he actually tremely healthy development. The "a marvelous switch from graduate took. That he was successful was faculty is larger and more diverse, school. I loved the common law unsurprising." and the School is more directly and courses-that surprised me. I hadn't Professor Robert W Hillman '73 substantively involved in the pro­ expected that I would like private of the University of California at fession, not just the bar but the law." Starr particularly recalled his Davis Law School, who served as bench." As an example, Starr cited first-year constitutional law class with editor-in-chief of the Duke Law his colleague on the nc. Circuit, Professor William Van Alstyne, whom journal, says that "the thing that Judge Harry Edwards, who travels he found to be "stunningly good." I recall most clearly about Ken is to Durham every fall to teach fed­ Van Alstyne's course was more in­ his decency in dealing with people. eral appellate practice. "We're also tellectually challenging than any I think it's very unusual to see a much stronger in the international course Starr had taken in graduate fellow as decent as Ken do as well area than we were when I was there." school. "I was working hard at think­ as he has in public service." As a ing. I had been surprised at how law student, said Hillman, Starr was A Legal Career seldom I was asked to do rigorous "a conservative with a strong hu­ After leaving Duke, Starr spent a thinking in graduate school." Pro­ manitarian instinct." On the journal, year as law clerk to Judge David Dyer fessor Walter Dellinger, Starr's first­ Starr was "the voice of moderation." of the Fifth Circuit, then worked year small-section instructor in civil Hillman, who will teach at Duke for a year in the Los Angeles office procedure, was also "a wonderful as a visiting professor next fall, re­ of Gibson, Dunn & Crutcher be­ teacher," Starr said. "I enjoyed the membered a conversation with Starr fore taking a post as law clerk to symmetry of procedure. It appealed during their third year in which Chief Justice of the U.S. Supreme to the sense of orderliness in me." Starr wondered aloud whether he Court Warren E. Burger. Starr fond­ Professor Hodge O'Neal, a for­ would do better to go to California ly remembers his two years in the mer James B. Duke professor of law and become active as a Republican chief justice's chambers and refers and dean of the Law School who or go home to Texas and become often in conversation to lessons he is recently retired from Washing­ a Democrat. "We both agreed that learned from Burger. Burger, he said, ton University in St. Louis, remem­ the two [California Republicans and was personally "very warm, very bered Starr as "an extremely bright Texas Democrats] were almost in­ charming, very wise." In a reminis­ student-always prepared, very re­ distinguishable," Hillman said. "I cence he wrote for the Harvard sourceful in coming up with answers advised him very strongly to go Law Review Starr recalled the in­ to legal problems. I recall that he to Texas." formality of Saturday conferences showed unusual insight into the Since 1987, Starr has served as a in the chief justice's chambers, at problems. He was certainly among member of the Law School's Board which Burger would prepare lunch: the top-flight students I have had of Visitors, which has given him an "There were no stewards or waiters in forty years of teaching law." opportunity to reflect on the changes or the like, just the Chief rustling One of Starr's classmates was in legal education since his Duke up some soup (beef bouillon fre­ Pamela Garm, now dean of the Law years. "Legal education is much more quently entered an appearance) and School. Starr and Garm served to­ theoretical in bent now than it was a little something he brought from gether on the Duke Law journal, previously," he said, adding that "the home. . . . Great legal battles were where, Starr recalled ruefully, Garm jury is still out" on this change in fought again over soup and crackers defeated him in staff elections for emphasis. "It would be unfortunate (and perhaps a homemade jam or articles editor. Starr served as note if the pendulum swung too far in the sauce), particularly the [U.S. Justice] and comment editor of the journal. direction of the theoretical under- department's civil suits [during VOL. 7, NO.2 137

Burger's tenure at Justice] with the Smith his attorney general, Smith gotten involved in making judgments magnates of Greek shipping." asked Starr to join him as counselor against what was clearly an educa­ During the interview, Starr offered to the attorney general. In that job, tional institution, and that was done a historical assessment of Burger's Starr said, "I would see-with 'need­ without legislative sanction. I felt sometimes controversial tenure on to-know' exceptiOns in national­ that [the department's position] was the Court and a reply to scholars security matters-every piece of misguided and argued against it. It who suggest that Burger lacked the paper that the attorney general saw." was highly inappropriate and un­ vision and stature of his predecessor, Starr oversaw the attorney general's seemly for us to shift positiOns, hav­ Earl Warren. "He ranks extremely professional staff and participated ing urged the Supreme Court at fIrst high as an administrator of the sys­ in the selection of judicial nominees, to grant certiorari in order to uphold tem and someone who believed including the search process for the IRS. It became an issue of major strongly that we did have something a replacement for Supreme Court import, but it was discussed within called a federal judicial system that Justice Potter Stewart, which pro­ the department, including by career faced serious dangers that required duced the nomination of Sandra Day employees within the offIce of the him to devote his attention to its O'Connor, the fIrst woman to sit solicitor general, as a legal matter, problems," Starr said. "To the ex­ on the Supreme Court. not a political accommodation." tent that he was devoting his time Starr was also a participant in President Reagan considered to those problems, he could not one of the most controversial deci­ naming Starr to a vacancy on the devote his time to his work at the sions of the Reagan Justice Depart­ Fourth Circuit, but the nomination Supreme Court." Burger, Starr said, ment, the decision to intervene in was blocked by the opposition of was a "progressive reformer," but a Supreme Court case considering Senator John Warner (R-Va.), on the one with a judicial philosophy that whether the U.S. Internal Revenue grounds that, at thirty-six, Starr lacked held that "judges were not to in­ Service (IRS) had the authority with­ the maturity and experience neces­ fringe on the prerogatives of the out a specific congreSSional direc­ sary: (The nomination eventually legislature.' ' tive to deny tax-exempt status to went to J. Harvie Wilkinson, another Burger took offIce in 1969. The private schools and colleges that youthful Justice Department offIcial, times Burger faced, Starr said, were discriminated by race in student but one with impeccable political very different from those that con­ admissions. That case, Bob Jones ties in Virginia.) fronted Warren on his accession to University v. United States, 461 U.S. later that year, Reagan named the court in 1953. "History should 574 (1983), became a sore point for Starr to the D.c. Circuit. This court, in fact view the Warren Court as critics of the administration's ap­ which is often in the thick of impor­ a temporary episode in our consti­ proach to civil-rights matters, be­ tant administrative-law and separation­ tutional history that was aimed at cause the Justice Department fIled of-powers cases, is considered by achieving fundamental reform at a an amicus curiae brief urging the many to be the second most im­ time when human rights were be­ Court to rule that the IRS had acted portant appellate court in the coun­ ing grossly violated. But eventually wrongly. The Supreme Court ruled try, after the Supreme Court. It is democratic institutions caught up. in 1983 that the IRS position was also a training ground for future Congress became the force for re­ correct. The adminsitration's inter­ Supreme Court justices, including form. Chief Justice Burger was not vention was seen as active encour­ Burger and current Associate Justices seeking to undo the reforms of the agement to the so-called "segregation Thurgood Marshall and Antonin M. 196Os. It was a restorative role. Even academies" founded in the South Scalia. though he was sometimes being as a means of avoiding court-ordered Starr arrived at a time when the characterized as a terribly conserva­ desegregation of public schools. court was a center of political con­ tive figure. The truth is captured in In the interview, Starr con­ troversy. Until Reagan's election, [Vincent] Blasi's collection of essays, fIrmed press reports that he had the D.c. Circuit had been one of The Burger Court: The Counter­ argued against the position the Jus­ the nation's most liberal courts. Con­ Revolution That Wasn't. [Burger] tice Department eventually adopted. servative Reagan appointees often felt that there was an undue swing­ But he defended the decision from found themselves in sharp disagree­ ing of the pendulum in criminal charges that it was motivated by ment with their more liberal col­ procedure, but [the Burger Court] hostility to civil rights and a desire leagues, such as Judge Edwards and was not a swing back-it was a re­ to send a positive signal to racist Judge Abner Mikva. Starr said that fusal to expand." voters. "It was a misguided effort reports in the legal press of a split After his two years at the Su­ to achieve an important principle," in the court were overdrawn. "The preme Court, Starr returned to the he said. "The principle is that in polarization is grossly exaggerated Washington offIce of Gibson, Dunn, our system of legislative powers the to the point of being a matter of where he became a partner. In 1981, legislature makes the law. For reasons annoyance to the judges," he said. when President Reagan named Gib­ squarely grounded in democratic "Our caseload is heavily involved son, Dunn partner William French theory it was held that the IRS had with public law, and so one would DUKE LAW MAGAZINE 138 expect the philosophical differences Title VII [of the Civil Rights Act of Stating that he would not enter the to come out. We tend to disagree 1964] and by the higher law of the office with a specific agenda of is­ on the things that a group of Amer­ Constitution." Legal critics charged sues to pursue, Starr pointed out icans at a town meeting would dis­ that Starr's decision misapplied an that "[t]he solicitor general doesn't agree on-issues of constitutional earlier Supreme Court deciSion, have the liberty to opine on a large law, for example. But the process Johnson v. Transportation Ageng;, range of issues. He reacts to the of judging is much more grounded Santa Clara County, 480 U.S. 616 caseload." In response to concerns in the techniques and procedures (1987). Starr's decision in Hammon that the office had been politicized, lawyers employ every day, and we was one basis for the strong criti­ Starr stated, "The solicitor general agreed much more often than one cism of his nomination by the Rev­ must be true to the rule of law. That would expect from reading press erend Jesse Jackson. Jackson wrote has to be his ultimate loyalty." He accounts." to Attorney General Richard Thorn­ did, however, acknowledge that Starr found himself at the center burgh that the nomination dashed "Congress did not create a truly of a number of highly visible cases his hopes that the new administra­ independent office in the S.G." and earned a reputation as a solid tion would "send a clear message conservative with more moderate of commitment to the goal of equal The Job instincts than his controversial col­ justice under law." In Starr, Jackson In moving to the solicitor general's league Robert Bork. In Tavoulareas wrote, "once again we have a nomi­ office, of course, Starr has moved v. Piro, 817 F.2d 762 (1987), he co­ nee for the Justice Department who toward more, not less, controversy. authored with a liberal colleague, strongly opposes affirmative action As chief advocate for the adminis­ the late J. Skelly Wright, an opinion remedies to help those who suffer tration before the Supreme Court, seen as having important implica­ from racial discrimination." the new solicitor general will find tions for First Amendment press A spokesperson for Thornburgh himself in the forefront of many freedom. The case involved a law­ replied that the attorney general issues that were bitterly contested suit by William Tavoulareas, the was "sorry that the Reverend Jack­ in the 1988 presidential election, chairman of Mobil Oil, against The son can't join in the almost unani­ including abortion, church-state Washington Post, which had printed mous praise that has been given to relatiOns, and, criminal justice. an investigative series suggesting Judge Starr's nomination, and he The solicitor general's office that Tavoulareas had used his cor­ hopes the Reverend Jackson can itself was the focus of controversy porate position to "set up" his son become familiar with Judge Starr's in the Reagan years. A 1988 book, in a lucrative shipping company record." The Tenth Justice: The Solicitor Gen­ doing business with Mobil. Press­ Though Starr's confirmation eral and the Rule of Law, by Lincoln freedom advocates had bitterly crit­ hearing before the Senate Judiciary Caplan, charged that the Reagan icized a district court ruling that Committee was considered to be administration had politicized the suggested that juries could consider unusually long and well attended­ office, forcing its solicitors general a newspaper's policy of pursuing largely because of the belief that to pursue the administration's polit­ investigative reporting as evidence this appointment moves him to the ical agenda even when the under­ of the "actual malice" necessary to forefront of prospective nominees lying legal issues of pending cases sustain a charge of libel by a media to the Supreme Court-the appoint­ did not support the ideological cast defendant against a public figure ment failed to generate significant the administration supplied. In so such as Tavoulareas. organized opposition. At the hearing doing, Caplan charged, the Reagan In their 1987 ruling, Starr and Starr pledged to restore the inde­ Justice Department had weakened Wright set aside the judgment, writ­ pendence of the office and seemed the ability of the solicitor general ing that "we reject the proposition to project a more lawyerly than to serve as a source of independent that a jury question of actual malice political role. "I would not take a judgment about government appeals is created whenever a libel plaintiff position as solicitor general that was and undermined the confidence that introduces evidence that the news­ not legally defensible," he testified. justices traditionally feel in the so­ paper vigorously pursues high-impact "But, it would be difficult to imagine licitor general, who has been dubbed stories of alleged wrongdoing." such a situation ariSing." the "tenth justice" because of his But in another 1987 case, Ham­ To both Democrats on the com­ or her collaborative role in setting mon v. Barry, 813 F.2d 412, Starr mittee seeking promises that he the Court's agenda. incurred the wrath of civil-rights would not advocate the overruling In the interview, Starr set out advocates when he invalidated an of Supreme Court precedent and his vision of the solicitor general's affirmative action plan adopted by Republicans seeking assurances that office. "The solicitor general is cer­ the District of Columbia Fire Depart­ he would challenge precedents con­ tainly a unique officer of the Court, ment on the grounds that "the stat­ sidered to be wrongly decided, Starr for the reason that he appears there utory goal of a racially balanced pointed out that his actions would with such unremitting regularity," workforce . . . stands condemned by have to depend upon the context. he said. "It is a special relationship, VOL. 7, NO.2 / 39

and a unique relationshp, between is more constrained as an advocate States has ftled its brief and is tak­ the two branches." The office serves [than lawyers representing state gov­ ing a forthright position that Roe a "gatekeeping role" that "protects ernments or private litigants]. It is v. Wad~ 410 U.S. 113 (1973), should the [Court's] docket" by refusing more important that the solicitor be overturned. That's a fairly sub­ to carry on appeals from government general be honest, forthright, and stantial example of legal advocacy. agencies that are repetitive or have candid with the Court than that Beyond that, it's too soon to tell. little chance of success, according the solicitor general win a case. But I will say that President Reagan's to Starr. A solicitor general can com­ That's unique about the solicitor election was, to borrow from Pro­ pile "an enviable record of success general's role." fessor Bruce Ackerman of Yale, a by saying no [to government offi­ Many observers will be watch­ constitutional moment, because of cials eager to pursue appeals to the ing Starr's first year in office closely what he was taking to the people. Court]." for indications of whether the Bush A strong legal strategy was part of At the same time, Starr said, administration will pursue the same that. Aggressive litigation policies "there are only nine justices. The kind of activist-even confrontational­ and efforts to overrule precedents solicitor general is there to represent legal strategy that the Reagan Jus­ are healthy. If a president hypothet­ the United States, and that means tice Department followed. "It's pre­ ically views a particular course of the people of the United States. But mature for me to be thinking about the Supreme Court as profoundly in our system, executive power is that," Starr said, indicating that many wrong, it would be curious if he vested in one person, the presi­ of these decisions will be made as did not-in an appropriate way, con­ dent. There are dangers in demo­ specific cases arise. "The office of sistent with the rule of law-urge cratic theory in saying that the so­ the solicitor general is reactive in the Court to change it." licitor general is 'independent' [of the same way the Supreme Court the president]. But the solicitor gen­ is reactive." Garrett Epps '9l. eral has a duty of offering indepen­ At the same time, according to dent judgment. The solicitor general Starr, "we now know that the United

Professor Melvin G. Sbimm (left) greets Judge Starr at tbe Board of Visitors meeting beld in Marcb in Durbam. DUKE LAW MAGAZINE /40

BookReview American Space Law: International and Domestic*

Nathan C. Goldman '75

Many years ago the great British principles of sovereignty over the explorer George Mallory, who was seas should serve as a model for to die on Mount Everest, was asked the development of a basic theory wlYy did he want to climb it. He said of space law, legal scholars quickly 'Because it is there.' Well, space is recognized that these ancient prin­ there, and we're going to climb it, ciples would prove to be inadequate and the moon and the planets are for the more complex legal issues there, and new hopes for knowledge that were likely to arise in space. and peace are there. And, therefore, Today, as activities in outer space as we set sail we ask God s blessing progress from scientific exploration on the most hazardous and dan­ to commercial explOitation, the prob­ gerous and greatest adventure on lem of constructing a coherent sys­ which man has ever embarked. tem (or at least a coherent theory) of space law has resulted in an ex­ President John F. Kennedy tensive literature on that subject, Address on the Nations Space including more than one thousand Effort, Rice University, law review articles, several space law Houston, Texas. Public journals and a number of space Papers of the Presidents of law treatises. One recent addition the United States: John F. to this literature is American Space Kennedy 668, 671 Nathan Goldman is an attorney in Law, International and Domestic, (Sept. 12, 1962). private practice in Houston. He has written by Nathan C. Goldman '75 also served as adjunct professor of and published in 1988 by the Iowa Since the beginning of time, space law at the University ofHouston State University Press. women and men have been fasci­ School of Law and as visiting profes­ Mr. Goldman's book is intended nated by the stars, the planets, and sor at Rice University. to serve both as a reference book the blue, ethereal sky. In 1640 John for the space industry and as an in­ Wilkins wrote: "Yet I do seriously his "flying chariot" and greeted the troductory treatise for law students. and in good grounds affIrm it pos­ earth: "The Eagle has landed. . . . Therefore, recognizing the student's sible to make a flying chariot in That's one small step for a man, need for basic information about which a man may sit and give such one giant leap for mankind." the history of space exploration a motion unto it as shall convey Mr. Armstrong's successful step and the emerging role of space ex­ him through the air.... 'Tis likely traced its technological roots to the plOitation, Mr. Goldman includes a enough that there may be means International Geophysical Year, an helpful selected bibliography at the invented of journeying to the moon; international effort in 1957-58 to end of his book. In addition, nu­ and how happy they shall be that study the earth's environments, in­ merous end notes lead the curious are first successful in this attempt." cluding outer space. Developing a general reader to a wide variety of How happy indeed. On July 20, legal infrastructure for mankind's useful sources of information about 1969, Neil Armstrong alighted from space efforts, however, has proven outer space. Mr. Goldman raises to be more problematic. Thus, al­ without resolving fascinating legal though most legal observers gen­ questions. It may be that the sub­ *(Iowa State University Press, 1988) erally agreed that the well-developed ject of space law, which is still in VOL. 7, NO.2 I 41

its relative infancy, does not yet lend itself to extended analysis. In any event, Mr. Goldman's book teaches several important lessons, such as the uniquely multidisciplinary na­ ture of the subject matter and the widely varied sources of information which must be consulted in handling many space law problems. American Space Law may be of even more interest to the inter­ national political scientist or legal theorist, because Mr. Goldman dis­ cusses the effect on the evolving theory and practice of space law of what he perceives to have been a "fundamental shift" in the nature of space activity itself. That shift, as he describes it, is from the early days of space exploration to the current era of commercial space exploitation. Mr. Goldman contends that this change in emphasis in man­ kind's space activities has been ac­ companied by a change in the legal approach that has been applied to these activities. He categorizes this as a movement "from the interna­ tional to the domestic and from the esoteric to the mundane commer­ cial aspects of space." Accordingly, he divides his work into two parts, one covering the years 1957 to 1980, which he labels "the era of inter­ national public law," and the sec­ ond, covering the years 1980 to the present (or, actually, to 1986, which is as far as his book extends), which he labels the period of "municipal law." The fIrst era began after the So­ viet Union orbited Sputnik in 1957. At that point, the nations of the world quickly undertook to guar­ antee the peaceful use of outer space for the "benefIt of mankind." Repre­ sentatives of many disciplines began in earnest to address the problem of governing outer space exploration activities; the results of their efforts include six space treaties formulated the Activities of States in the Explo­ sons have a common interest in the within the United Nations and a ration and Use of Outer Space, In­ exploration and use of outer space number of major treaties and agree­ cluding the Moon and Other Celestial for peaceful purposes, (2) the moon ments negotiated outside the con­ Bodies, done January 27, 1967, 18 and other celestial bodies are free text of that body. The most signill­ U.S.T. 240, T.I.A.S. No. 6347, 610 for exploration and use by all states, cant of these treaties was the basic U.N.T.S. 205. Entered into force on (3) no states shall place in orbit charter of international space law, October 10, 1967, this treaty includes around the earth "any objects car­ the Treaty on Principles Governing the following provisions: (1) all per- rying nuclear weapons or any other DUKE LAW MAGAZINE I 42

kinds of weapons of mass destruc­ increased access to outer space by The shift in the law of outer tion," (4) all states shall use the moon more nations of the world, "the space away from international co­ and other celestial bodies "exclu­ atrophy and obsolescence of most operation is, of course, by no means sively for peaceful purposes," (5) space treaties and the shift toward fortuitous, and it is likely that the astronauts are to be regarded as a domestic law of outer space." To earlier approach was doomed to envoys of all people, (6) states shall illustrate, the author highlights cur­ failure once mankind turned its be internationally responsible for rent space topics such as the de­ space efforts from exploration to national activities in space, (7) states militarization of space, solar power commerce. After all, although hu­ shall retain jurisdiction and control satellites, direct broadcast satellites, man beings have been exploring over their launched space objects, geosynchronous orbit, nuclear power the seas since antiquity, it is only (8) cooperation and mutual assis­ sources in space, and remote sens­ recently that technology has enabled tance shall guide nations engaged ing technology. He also discusses the sea beds to be exploited in a in space activities, (9) stations on the courts' role in domestic space commercially feasible manner, and, the moon and other celestial bodies law and briefly summarizes decisions as has been demonstrated in recent are to be open to other states on the on selected legal issues, including years, the nations of the world have basis of reciprocity, and (10) most questions of civil and criminal juris­ been unable to reach any type of significantly, Article II, stating that diction, property rights, licensing, comprehensive agreement as to how "Outer space, including the moon Federal Communication Commission that exploitation should proceed. and other celestial bodies, is not rate-making, contract disputes, and Nevertheless, one still wishes for a subject to national appropriation numerous unanswered questions better result in space, if for no better by claim of sovereignty, by means surrounding the tragic Challenger reason than the ancient symbolic of use or occupation, or by any accident. Mr. Goldman also describes connection between the heavens other means." the most significant statutes passed and mankind's highest and best Treaties or conventions formu­ during this period and the various aspirations. Thus, we look forward lated after 1967 deal with the rescue United States government agencies to the future and hope that when of astronauts, the return of objects involved in their administration, Mr. Goldman someday updates his launched into outer space, equitable most notably, the National Aero­ work to include post-1986 develop­ compensation for damage caused nautics and Space Administration. ments, he will be able to conclude by space objects and the highly As women and men look for­ that his earlier sharp dichotomy be­ controversial declaration that the ward to the twenty-first century and tween the "international era" and moon and its natural resources are the continued exploitation of outer the "municipal era" of space law the "common heritage of mankind," space, nettlesome issues remain to is by then no longer accurate. and therefore, all nations of the be resolved. Some of these issues world must share equitably in the which Mr. Goldman mentions are Reviewed by Betty Hertel, Reference benefits of the moon's natural re­ (1) the gathering and dissemination Librarian and Instructor in Law, sources. Similarly, treaties and agree­ of information by means of remote Duke University School of Law. ments formulated outside the United sensing (gathering information about Nations context harmonized and the earth's natural resources, weather, facilitated the use of communication and agricultural activities from sat­ networks, encouraged the peaceful ellites in space), (2) the peaceful use use of the radio frequency spec­ of nuclear power sources in space, trum and the related geostationary (3) the definition or delimitation satellite orbit, improved maritime of "outer space" versus "air space" communication networks, and even (including questions related to the allowed for international arbitration geostationary orbit over the equator), for the settlement of disputes re­ and (4) prior consent related to the lated to space. signals of popular direct television Mr. Goldman describes all of broadcasting satellites. Although these international agreements in members of the United Nations have his book, and, in addition, includes been seeking to resolve these and as appendices texts of some of the similar issues since 1979, such thorny significant treaties and conventions. issues are not subject to easy com­ The second half of Mr. Gold­ promise. As a result, Mr. Goldman man's book, covering the years 1980 concludes that nations will continue through 1986, is labeled '1\merican to rely more on bilateral agreements municipal space law." According to and national legislation and less on Mr. Goldman, this period was charac­ treaties formulated in the United terized by the exploitation of space, Nations. VOL. 7, NO.2 / 43

SPECIALLY NOTED

Professor Max-w-ell Retires

wound up in the law sort of by de­ his specialty in oil and gas as an­ fault;' he explains. "I was too clumsy other "matter of default." His loca­ to do the lab experiments in my tion in Texas and the knowledge of science and engineering courses." the politics of the upper Midwest Halfway through his law train­ that he gained during his time in ing at the University of Minnesota, North Dakota combined to point Professor Maxwell joined in the ef­ him in the direction of developing forts of the United States in World mineral law. War II. "It's what everyone was do­ After four years at the UniverSity ing. They said go, and we went." of Texas, Professor Maxwell moved In 1942 he moved to the west coast, to the University of California at married his wife, Frances, and three Los Angeles. There he served twenty­ weeks later left for the Pacific arena. six years; during eleven of those He served as a staff officer with the years he held the position of dean. naval air operations and amphibious Duke's Professor Walter Dellinger forces for four years. After the war, describes Maxwell as "the most suc­ he finished his law degree and served cessful law school dean of the last as the student president of the Min­ quarter century. He took a small nesota Law Review. fledgling law school in California The University of North Dakota and in the space of ten years, through was the first stop in Professor Max­ hard work and great insight, built it well's teaching tour. "I am from into one of the nation's fillest law "The best thing about studying Minnesota," he explains. "I liked schools." Professor Maxwell was law," explains Dick Maxwell, "is you the idea of being able to fish and dean at UCLA from 1958 to 1969. can take your education and it's teach." He was at the University of He explains that this was a "lively negotiable. The law is so broad in North Dakota for two years. During time to be in education." During terms of what you can do. It can that time he became familiar with his tenure as dean he found his work move from place to place and activ­ the Williston Basin Oil Reserves, with African countries and his ef­ ity to activity." Professor Maxwell the last big oil discovery in the forts to expand the reach of legal has himself taken advantage of this United States. He served as counsel education and curriculum challeng­ negotiability as he has served as to the Amerada Petroleum Company ing and exciting. "It was during the scholar, teacher, dean, and advisor. during the early development of time when there was a great empha­ As he retires and friends and col­ the basin. This knowledge proved sis on expanding the role of minor­ leagues reminisce, the warmth and important as he developed special­ ities and social change. There are affection that his name evokes is evi­ ties in oil and gas law and real estate. great challenges in the job of a dean. dence that this deep appreciation From the University of North It is also hard work." During this for new opportunities and for people Dakota, Professor Maxwell moved time he also worked with the Amer­ is an important part of the power­ to the University of Texas. It was ican Bar Association developing ful presence Professor Maxwell there that he developed a specialty early law education programs for provides at Duke Law School. in oil and gas law. Maxwell points primary and secondary schools. Born in Minnesota, Professor to work he did with Stephen Riesen­ Professor Maxwell enjoys the Maxwell entered the University of feld on Modern Social Legislation opportunities to be a part of new Minnesota with a focus on chemical as the impetus behind his decision places that his life in academia has engineering and then pre-med. "I to enter academia. But he describes provided. He has been a lecturer for DUKE LAW MAGAZINE 144

the U.S. State Department in Liberia, Professor Dellinger points to received the Distinguished Teaching Ethiopia, and Nigeria. He held visiting Maxwell as "an enormously valuable Award from UCLA in 1976 and from chairs at the University of Minnesota, influence on the rest of the faculty. Duke in 1987, and was the recipi­ the University of Singapore, and He is a wonderful role model as ent of the UCLA Medal in 1982. He the University of Colorado, and has scholar and teacher. He is generous was awarded an LLD (Hon.) by Cali­ been a visiting professor at Colum­ with his time and his willingness fornia Western in 1983. He was Pres­ bia, Gonzaga, and Texas Tech. He to help guide and shape younger ident of the Association of American was a Fulbright lecturer at Queen's members of the faculty." Law Schools in 1972 and is an edi­ University in Belfast in 1970. Former dean Paul D. Carrington tor of the Oil and Gas Reporter. The Board of Visitors of the Law notes that "Dick Maxwell was sure­ He has done work for the Ameri­ School originally brought Professor ly one of the most accomplished can Bar Association, the California Maxwell to Durham. At then-dean classroom teachers of his genera­ State Bar COmmission, the Employee A. Kenneth Pye's invitation, Profes­ tion. In his youth at Texas in 1948 Rights Board of the City of Los An­ sor Maxwell spent six years on the his animation and intenSity earned geles, and the National Executive Board. When he decided that it was him a sobriquet, 'The Screaming Committee of the Order of the Coif. time for a change, Professor Maxwell Eagle.' In 1982, a group of Chinese He has served as Chairman of the accepted an invitation to serve as a educators visiting Duke identified Council on Legal Education Oppor­ visiting professor at the Law School Maxwell as the appropriate role tunity and as a member of the Board in 1979. In 1981 he moved to Duke model for law teachers in China." of Directors of the Constitutional and accepted a position as the Harry Students express similar appre­ Rights Foundation. He has also R. Chadwick, Sr., Professor of Law. ciation of Professor Maxwell. Brad served as a board member at a num­ He cites a beautiful place to live, Bryan, a second-year student who ber of educational institutions. He a change of pace from the west worked in the oil and gas field be­ does oil and gas arbitration and coast, people he enjoys, and Duke fore entering law school, took Pro­ chairs the Board of Directors of the basketball as the primary incentives fessor Maxwell's oil and gas course Private Adjudication Center at Duke. for his move to North Carolina. He in the fall. "Professor Maxwell," Pictures in his office show that admits that "some have accused me says Bryan, "is that rare combina­ Professor Maxwell is rightfully proud of coming here because UCLA went tion of leading scholar in his field of his private accomplishments as downhill after John Wooden." and outstanding teacher. He has a well. In addition to the good fortune At Duke, Professor Maxwell's tremendous ability to communicate of fmding a wife who was willing primary teaching areas are oil and very technical legal concepts in a to marry him and three weeks later gas and real estate fmance, although way that students can readily grasp. wave goodbye as he set off for war, he describes two summers teaching We are fortunate to have the op­ Professor Maxwell has enjoyed the property as some of his "most portunity to study under a scholar gift of two sons and three grand­ pleasant experiences" because of who has made such a tremendous children. His two grandaughters, the greater student-teacher contact. contribution to the field of oil and ten and eight, reside with their pa­ Professor Maxwell enjoys the stu­ gas." rents in Texas. His grandson, seven, dents at Duke, although he feels In looking back on his years lives with his parents in Indiana. that they travel too much in the fall in teaching, Professor Maxwell feels Knowing his great love for the semester. that his own teaching style has not "negotiable" quality of the life he In addition to his teaching and changed much, but that the total has created, one needn't worry about scholarship, Professor Maxwell has law school experience has changed Professor Maxwell's capacity to enjoy contributed to the life of the School considerably. He cites the wider the days to come. Fishing, hiking, in other important ways. He recently prospects for law graduates and the and spending time with his grand­ served as head of the dean search role of women as two areas that children are a few of the activities committee and is often given special have mushroomed during his ten­ on his list; but, fortunately for Duke administrative tasks because of his ure. In the 1950s he taught a very law students, this retirement is not extensive academic experience. Dean bright female student who has since a full retirement. Professor Maxwell Pamela Garm describes him as a become a federal judge. But when will continue to teach a limited num­ "Senior Wiseperson" who has pro­ she flfSt graduated, Professor Max­ ber of courses at the Law School vided "guidance, advice, and a good well did a lot of pushing and pull­ next year. So the good humor and sense of humor" in helping chart ing to get her a job. The subsidy encouragement of a very important the course of the Law School over and the hands-on training that comes "Senior Wiseperson" will continue the last ten years. "He is really a very from summer jobs are other positive to grace our shared life on Science special person, a sweet, thoughtful, changes he sees in the law school Drive. charming man who is always will­ experience. ing to be a sounding board for Professor Maxwell's professional ideas or problems." accomplishments are manifold. He Denise Thorpe '90 VOL. 7, NO.2 / 45 Carrington Natned Chadw-ick Professor

Carrington came to Duke in 1978 as occasional work for the Ameri­ as professor and dean of the Law can Civil Liberties Union and the School. A native of Dallas, he be­ American Association of University gan his teaching career in 1957 and Professors. has taught at more than a dozen Dean Gann noted that "this rec­ law schools. He has been on the ognition was long overdue. He al­ faculties at Harvard University, the ways placed others forward on the University of Wyoming, Indiana faculty for chairs rather than him­ University, Ohio State UniverSity, self while he was the dean for the and the UniverSity of Michigan. last ten years." She also noted that After stepping down as dean in the "Professor Carrington's accomplish­ summer of 1988, he has spent the ment in remaining a highly produc­ Paul D. Carrington, former dean past year on sabbatical while teach­ tive scholar while serving ten years of the Law School, has been named ing at the Universities of Michigan, in a busy and successful deanship the Harry R. Chadwick, Sr. Professor California at Berkeley, and Texas. was nothing short of remarkable." of Law, effective July 1, 1989. He Long recognized as a leading "He is preeminent as a scholar was one of ten University profes­ expert in the fields of judicial ad­ in federal courts and civil procedure. sors to be named to distinguished ministration, civil procedure, and He is also a primary figure in the professorships on April 27 by Uni­ legal eductation, Carrington cur­ United States in the field of educa­ versity Provost Phillip A. Griffiths. rently serves as the Reporter for tion, legal education, and profes­ The Chadwick Chair was estab­ the Advisory Committee on Civil sional ethics. Throughout his work, lished in 1978 by Harry R. Chadwick, Rules of the Judicial Conference he has shown significant intellectual Jr. '53 and his wife, Laurel, in honor of the United States. He has served and social courage. Occasionally, of his father. The first Chadwick on various committees of the Asso­ his conclusions are unpopular with Professor was Richard C. Maxwell, ciation of American Law Schools, a given audience, but this fact has who retired in June. Other mem­ the American Bar Foundation, the never inhibited his presentations. bers of the Law School faculty who American Bar Association, the Fed­ Perhaps his most significant current hold distinguished professorships eral Judicial Center, and others. His work pertains to services as Reporter are George C. Christie, Clark C. professional experience includes a for the Federal Rules of Civil Pro­ Havighurst, Donald L. Horowitz, brief stint in private practice in Dallas cedure, which is a truly major posi­ and William W. Van Alstyne. and in a military law office, as well tion within our profeSSion."

Gifts to Duke Law- School Womble Family Members Make Gift

Several members of the Womble The family chose to benefit the have continued to make contribu­ family of Winston-Salem, North Law School particularly because it tions to the Scholarship Fund over Carolina, who are alumni of Duke provided the training for Mr. Wom­ the years for which they have been Law School, recently made generous ble's chosen profession. recognized as Barristers. This most gifts to the B.S. Womble Scholar­ Bunyan Snipes Womble grad­ recent gift from the sons and grand­ ship Endowment Fund at Duke Law uated from Trinity College in 1904 son of the original honoree was School. William F. Womble, Sr. '39, and attended Trinity College Law applauded by H. Keith H. Brodie, Calder W. Womble '43 and William School from 1904 to 1906. He later President of the University, as "gen­ F. Womble, Jr. '67 have jointly com­ served on the Board of Trustees of erous and substantial. We commit mitted $110,000 to the Fund. The both Trinity College and of Duke ourselves to making [the Wombles] Womble Scholarship was established University. While a Trustee, he served proud of this decision and gift for in 1961 by the wife and children of as Chairman of the [Board's] Law which we are extraordinarily grateful:' Bunyan Snipes Womble in his hon­ School Committee and as Chairman As provided when established, or and in recognition of his active of the Board of Trustees. income from the Womble Scholar­ and loyal support of Duke University. Members of the Womble family ship provides one or more schol- DUKE LAW MAGAZINE / 46

arships annually at the Law School. year class, and only approximately need increased endowment support. According to Pamela Gann, Dean $60,000 of that amount was cov­ Thus, gifts like these help us satisfy of the Law School, such endowment ered by endowment income. If we some of the most important central income for fmancial aid is critically are to be able to continue a relative­ policies of the Law School admis­ important to the School. "In 1988 ly need-blind admissions policy in sions process, and we warmly thank we awarded a total of $630,000 in order to attract the best students the Wombles for their generosity." scholarships to students in the first- possible to Duke, we very much

Riddicks Create Endowment for Law Library Floyd M. (Trinity '32, Law'37) and Marguerite F. Riddick of Arling­ ton, Virginia have created the Riddick Endowment for the Law Library. Income from the fund will be used to "support the purchase, process­ ing, storage, and preservation of materials on legislative and parlia­ mentary procedure, and on legal materials relating to American gov­ ernment in the Duke University Law Library." Dr. Riddick is the Parliamentarian Emeritus of the United States Sen­ ate, and the former editor of both the Congressional Daily and Legis­ lative Daily He has been closely associated with Congress since 1939, and was responsible for developing the "Daily Digest" section of the Congressional Record. He is the au­ written by or about senators to the Mrs. Riddick have been generous thor of Senate Procedure-Precedents Duke Law Library. This collection, donors to the Law Library since and Practice, "a compilation of the "The Floyd M. Riddick Collection 1979, both in books from Dr. Rid­ rules of the Senate, portions of laws of Senatorial Materials," has been dick's personal collections and in affecting Senate procedure, rulings augmented with materials written funding to support purchase of ma­ by the PreSiding Officer, and estab­ by senators past and present from terials on legislative and parliamen­ lished practices of the Senate," last the Library's general collection and tary procedure. The endowment published in 1981. By joint resolu­ by purchases from the Library's will allow us to continue and ex­ tion of Congress, the next edition general fund. pand our acquisition of materials will be called "Riddick's Senate In acknowledging the establish­ in those areas. We are most pleased Procedure." ment of the Riddick Endowment, that our good friends have chosen In 1979, Dr. Riddick donated Professor Richard Danner, Director to continue their interest in the li­ his collection of autographed books of the Law Library, noted "Dr. and brary in this way." Olin Foundation Grant

In January 1989, the Board of The grant will allow Duke to ticular area of law and economics. Trustees of the John M. Olin Foun­ join other national law schools, such After this period, we would expect dation awarded a grant of $487,500 as Chicago, Stanford and Yale, in to have this area fully incorporated over a three year period, to support increasing the focus placed upon into our program. Law and econom­ a program of Law and Economics economic reasoning in the law. ics is now recognized as a significant at the Duke University School of According to Dean Pamela Gann, aspect of legal analysis and prob­ Law. The benefits of this grant will "The purpose of this grant is to en­ lem solving . . . and we want our be wide-spread and are greatly an­ able us, over a three year period, students and our curriculum to re­ ticipated by both faculty and stu­ to develop a cohort of students, flect this. A school of Duke's stature dents at the Law School. faculty and curriculum in the par- should be very active in this area." VOL. 7, NO.2 /47

It should be noted that Duke their own specialties and believe that program, thus greatly increasing is already active in this field of law, Duke can effectively utilize this type the possibilities for major research most notably through its faculty of grant. "The strength of our fac­ projects in law and economics by whose work currently involves or ulty is the extent to which we are both the visiting scholar and by the employs the insights of the econo­ connected to real legal questions and faculty member on leave. mist in the analysis of legal problems. real legal problems. I would hope It is also anticipated that fmanc­ Examples include Clark Havighurst, that these programs [resulting from ing will be provided for curricular William Neil Reynolds Professor of the grant] will integrate economics development, either to strengthen Law, who is presently in the fmal more fully into that realm," explains the law and economics content in stages of writing a casebook entitled Professor Culp. "The criticism of the School's current courses or to Health Care Law and Policy which economics is that it is too theoreti­ develop new courses dealing ex­ uses a law and economics analysis cal and not practically grounded. If clusively with the subject of eco­ of the health care industry, and these programs are Duke-oriented, nomics in legal analysis. In either Jerome Culp, Associate Professor they will be practical." or both cases, implementation is of Law, who is currently complet­ The grant will most likely be expected to begin by 1991 or 1992. ing his study on the opinions of used in a three-pronged effort to In addition, a portion of the Judge Richard Posner, the highly increase law and economics develop­ grant is to be set aside to provide economically-oriented member of ment at the Law School. A primary support for the ].D./M.A. Program the Seventh Circuit, which was orig­ area of use will be research support, in Economics and Law and to fund inally published in the Autumn 1987 permitting the School to expand the dedication of one issue each edition of Law and Contemporary and develop a visiting speakers pro­ year of the School's journal, Law Problems. gram while allowing faculty research and Contemporary Problems, to Many members of the School's leaves. It is hoped that a senior eco­ focus on topics involving the inter­ faculty fmd the materials generated nomics scholar will spend a year play between legal and economic by law and economics relevant to at Duke on a visiting professorship issues.

Special Gifts to the Building Fund

In order to reach the ambitious 1989 Class Gift class will be Barristers by giving fund raising goals set to accomplish Some members of the Class $ 500 or more to the Law School the needed Law School renovation of 1989 have already made pledges Annual Fund. and endowment, many alumni and to the Law School which they will These figures, particularly the friends of the Law School are mak­ pay over a three year period. Funds average gift, compare very favorably ing generous "stretch" gifts. Such from their first year pledges will with figures from our most recent gifts will be regularly reported in benefit Phase I of the Law School classes in which the average gift for the Duke Law Magazine and the renovation by purchasing computers the first three years following grad­ Law School Annual Report. and related furniture. Pledges for the uation has not risen above $100, At this time we are particularly second and third year will go to though the average gift for all alum­ pleased to acknowledge the gifts the Law School Annual Fund which ni is over $200. ofB. Richard Burdman '56 and John supports the operating budget of The Law School is most grateful A. Canning, Jr. '69, who have each the Law School. to our most recent graduates for pledged individual gifts of $100,000 To date, twenty percent of the their support and vote of confidence to the Law School. Both Burdman class has pledged over $25,000 over in the future excellence of the Law and Canning devote significant time the three years. Matching gifts from School. Class members who have and energy to the Law School as employers will bring the three year not yet made a pledge but wish to members of the Board of Visitors. total to over $30,000. Approximately participate in the program may call Richard Burdman also serves on $6,000 of the pledged amount will or write the Law School Alumni the Major Projects Council. be paid during the 1989-90 year to Office. In addition to these exemplary be used for Phase I of the building gifts, the Law School has received project. The average annual gift a gift of $250,000 from an alumnus pledged by class members rose from donor who wishes to remain anony­ $150 the first year to $275 by their mous. Such gifts are crucial to the third year. And, by the third year success of our efforts. out, at least nine members of the DUKE LAW MAGAZINE / ~8 The Currie Lecture

conflict of laws can never be the same again."! Nonetheless, Currie's influence on the law and on his students resulted as much from his personal enthusiasm for his work as from his intellectual abilities. It is probably fair to say that Currie's legal poetry, "Rose of Aberlone,"l should be required reading for all bar exams. Speakers that Duke Law School has hosted during the twenty-two years of the Currie Lectures have included Justice Traynor, speaking on the effect of conflict of laws questions on criminal law, Judge Friendly, discussing administrative law, John Hart Ely examining con­ Left to right: Dean Pamela B. Gann '73, John H. Lewis '67, Mrs. Brainerd stitutional values, and Phillip Areeda Currie, Professor W. Michael Reisman exploring the relationship between economics and the law. The scope of the lectures is befitting their This year's Currie Lecture by The balanCing of theory and dedication to Brainerd Currie. As Professor W. Michael Reisman of practice, and the search for inno­ Justice Traynor has stated, Currie Yale Law School was well attended vative solutions to legal quandries "was a man of genius whose work by faculty and students from both are appropriate recurring themes in affords us insights for resolving the Law School and the broader the Currie Lectures which have been some of our most troublesome legal Duke community. Professor Reis­ delivered annually at Duke Law problems."3 Through the lecture man's subject, "International Sys­ School since 1967. The Currie lec­ series and the publication of each tems of Arbitral Control: Case Studies tures are a result of the determina­ lecture in the Duke Law journal, and Breakdowns," is an issue he tion of their originator and bene­ Currie's spirit of excitement for chal­ has been researching as part of a factor, John Lewis '67, that Brainerd lenging the frontiers of the law larger work on international com­ Currie's brilliance and contributions lives on. mercial arbitration. The focus of to the law and to Duke Law School Professor Reisman's lecture was should not be forgotten after Currie's Phoebe Kornfeld '90 an analysis of common procedural untimely death in 1965. A Duke weaknesses in international com­ Law School professor from 1946-49 mercial arbitration as it is conducted and 1961-65, Currie is undoubtedly at the International Court of Justice best remembered for his introduc­ 1. W Malone, 1964 Ass'n Am. Law in the Hague, at the World Bank's tion of the concept of governmental Schools, Pt. 2, p. 80. International Centre for the Settle­ interest analysis to the field of con­ 2. lO STUDENT LAWYER 4 (1965). ment of Investment Disputes, and flict of laws. It was in recognition 3. Traynor, Conflict of l£lws in Time: under the 1958 New York Conven­ of his book, Selected Essays on the The Sweep of New Rules in Criminal l£lw, tion. However, the lecture was far Conflict of Laws (1963), that Currie 1967 DUKE L.). 713, 713. from a mere critical condemnation was the first recipient of the Trien­ of the current state of affairs; Pro­ nial Coif Award for legal scholarship. fessor Reisman also squarely As was said at the time the award addressed the need for theoretical was conferred on Currie, "it seems and practical rethinking in the field clear enough that after Brainerd in order to prevent systemic paralysis. Currie that dark science called the VOL. 7, NO.2 / 49

ABA Conunittee Meets visa. Mr. Sasser gave a chronological history of Hyatt v. Heckler; 757 F.2d at Duke LaW" School 1455, a pro bono case undertaken by the Charlotte firm, Robinson, The American Bar Association's for distribution to the private sector Bradshaw & Hinson, co-counselled (ABA) Stancting Committee on Law­ is a guide that accumulates the suc­ by Legal Services. (For a discussion yer's Public Service Responsibility cessful efforts of those firms that of this case, see "In the Public In­ (SCLPSR) was organized to actively have been able to provide pro bono terest," Duke Law Magazine, Winter encourage and assist lawyers in ful­ services in addition to their regular 1989, at 43-44.) The Robinson firm filling an ethical obligation by vol­ practice. It is hoped that this guide received the 1984 NCBA Pro Bono unteering their time and skill for will aid private firms in developing Service Award and the 1984 ABA the benefit of the poor and disad­ effective ways to handle their pro Pro Bono Award for work on the vantaged in our country. As it be­ bono requirements. "The function case. The firm donated attorneys' came apparent that the efforts of of the Committee is to increase fees received for this case to the individual attorneys were not suffi­ lawyer awareness of how they can Mecklenberg County Volunteer Law­ cient to meet this need, the Com­ enhance their public service respon­ yers Program to support other pro mittee began to focus its efforts on Sibilities," said Pamela Gann, Com­ bono efforts. encouraging participation from law mittee member and dean of Duke Jerome R. Eatman, Jr., a partner firms and law students, as well as Law School. "Hopefully we are suc­ in the Raleigh office of Poyner & the bar associations. ceecting in our efforts towards Spruill, presented the Committee On January 21 , 1989, Committee these areas." with an in-depth discussion of how members met at the Duke Univer­ his law firm recently established a sity School of Law for their semi­ North Carolina public service division to coordi­ annual meeting. The day-long session Private Bar Efforts nate the firm's pro bono work. As was co-hosted by Duke Law School, Panelists Marjorie Putnam, Di­ chairman of the new division, Mr. the ABA, and the North Carolina Bar rector of Pro Bono Activities at the Eatman explained that it had be­ Association (NCBA), and featured North Carolina Bar Association and come necessary for Poyner & Spruill panel discussions on the status of Charles Sasser, managing attorney to respond to the increasing need pro bono in North Carolina and the at Legal Services of the Southern to provide free legal services to the Law School's role in encouraging Piedmont, explained the activities, poor. The firm chose to create a public service responsibility for accomplishments and future goals specific division to cope with pro future lawyers. of their programs in part by high­ bono problems after studying the Recognizing the growing need lighting particularly interesting and successful pro bono programs that to increase the number of volunteers involved cases they have handled. had been implemented in other coming from private law firms, the Ms. Putnam discussed representation East Coast firms. Advice was also Committee has begun a new project of Cecilia Ogugua, a Nigerian na­ gleaned from the ABA, the NCBA, to help law firms incorporate into tional who faced deportation by and the pro bono coorctinator of their practice a system for serving the Immigration and Naturalization the local Wake County Volunteer the poor. Currently being completed Service for the overstay of a student Lawyers Program. Underprivileged clients are re­ ferred to the division chairman from various community groups. The chairman then assigns the case to one of the firm's attorneys, based upon the type of expertise required, the geographic constraints of the case, and the current workload of the attorney. This system allows Poyner & Spruill to handle a much greater volume of pro bono cases by spreacting the workload among the firm's eighty lawyers and four North Carolina offices. This also allows the chairman to maintain a high degree of quality control by ensuring the match of lawyer com­ petence to each case requirement. DUKE LAW MAGAZINE I 50

expected pro bono participation into an attorney's workload, Poyner & Spruill has effectively reduced the possibility of penalities occurring from pro bono work, such as lost time in billable hours or an eco­ nomic loss to the attorney.

The Law School's Role Both Jack Alden, the student rep­ resentative for the Forum for Legal Alternatives at Duke Law School, and Dean Pamela Gann spoke to the Committee regarding the Law School's responsibility to encourage and develop the public service ob­ ligations of future lawyers. In his presentation, Mr. Alden stressed that Partners are often assigned to review large law firms. Notably, the time the ability to practice law is a privi­ an associate's performance on pro commitment is now between twenty­ lege that carries with it an obligation bono assignments. five and fifty hours a year per attor­ to provide pro bono assistance to Although many lawyers at Poyner ney, greatly increasing the availability those requiring it. The legal pro­ & Spruill have long been involved of legal services to low-income feSSion, he maintained, has helped in pro bono work on an individual North Carolinians. to create a judicial process that makes basis, the establishment of the pub­ Only limited classes of civil cases, it virtually impossible for a citizen lic service division marks a signifi­ such as guardianship for juveniles, to achieve a favorable outcome with­ cant departure from the traditional are guaranteed the assistance of an out the benefit of an attorney. It is approach taken by North Carolina's attorney. Last year, the State of North therefore vital that lawyers aid those Carolina spent over $1.8 million for who are unable to pass through the defense attorneys needed to repre­ fmancial barriers to legal represen­ sent indigent persons charged with tation. According to Mr. Alden, firms PILF Fellowship criminal offenses through the court­ need to eliminate the negatives as­ appointed lawyer system and the sociated with an attorney undertak­ The Public Interest Law Foun­ public defender program. The state ing pro bono work and instead strive dation (PILF) is an independent, spent almost nothing on legal repre­ to create job incentives encourag­ non-profit organization operated sentation for indigent cases in civil ing such activity. and funded by its membership, matters. Legal Services of North Mr. Alden described a number which consists of Duke Law alum­ Carolina does its best to alleviate of groups at Duke Law School that ni, students, faculty and inter­ the situation; yet it is estimated that give students who already have an ested community members. PILF there are 1.2 million North Caro­ interest in pro bono work the oppor­ hopes to make fellowship awards linians who are eligible for legal tunity to recognize public service predominantly or exclusively to services for civil representation. obligations. These include the Pris­ recent Duke Law School gradu­ Unfortunately there are only about oner Rights Project, the Forum for ates who propose one-year proj­ 100 legal services attorneys in North Legal Alternatives, the Environmental ects in public interest law. Carolina, resulting in a ratio of ap­ Law Society, the Public Interest Law The Public Interest Law proximately one attorney per 12,000 Foundation, the Volunteer Income Foundation plans to grant its first clients. This shows the graphic im­ Tax Assistance program, and the fellowship award in the spring of portance of the work being per­ Student-Funded Fellowship program. 1990. Grant applicatiOns will be formed by private firms and the Many people seek an immediate available by September, 1989 and great need for increased efforts solution to the problem from the anyone interested in applying for in the area of pro bono services. law schools. One suggestion is that the grant should contact PILF by The work of the public service more opportunities could be pro­ mail at Duke Law School. The division at Poyner & Spruill has the vided by which students could prac­ Board of Directors will evaluate added benefit of sending a strong tice their future professional duties, project proposals from third year message to the younger lawyers in thus removing the concept of pro students and alumni to select the the firm that pro bono is not just bono work from the theoretical to grant recipient(s). tolerated but is to be expected of the actual. Indeed, Duke Law School the legal profession. By building is working on a clinical program VOL. 7, NO.2 I 51

to aid students in discovering the Presently, approximately half are infected with pro bono fever, they importance of public service work. the Tulane students are assigned to are likely to spread the contagion. According to Dean Gann, "Duke is work with a volunteer attorney on The Committee hopes that its currently in the process of develop­ a case (or cases) allocated to that efforts and programs such as those ing a pre-trial litigation clinic and attorney through the New Orleans described by the panelists will help hopes to place students into pro Pro Bono Project, which was estab­ to foster an awareness in law stu­ bono areas for learning." lished by the non-profit Louisiana dents and to educate them about Julie Jackson, Director of the Bar Foundation to provide civil legal the obligations of lawyers to pro­ Community Service Program at Tu­ services, free of charge, to indigents, vide public service assistance. A lane Law School described the man­ through volunteer attorneys. Stu­ videotape and classroom materials datory pro bono program for all dents are also assigned to specific were developed by the ABA for use law students instituted there in the legal service providers. For example, in ethics and professional responsi­ fall of 1988-the first ABA-approved students assist in client interviews bility classes. The videotape shows law school in the United States to and screening for Project Save, which the pro bono activities of four attor­ establish such a requirement. provides legal aid and shelter for neys and includes short statements Students are required to per­ battered women in the New Orleans by a variety of pro bono attorneys form community service using the metropolitan area. An example of about why they do volunteer work. skills and knowledge acquired in a placement in the criminal sector The Committee has long maintained the classroom. Each student must is the Opelousas Indigent Defender that pro bono responsibility must complete a minimum of twenty Program where students assist public begin in law school. As U.S. Supreme hours of legal service on behalf of defenders in all stages from arraign­ Court Justice Sandra Day O'Connor indigents. The required hours are ment to plea bargaining or to trial. has stated, "too many lawyers are ungraded, but are recorded on the The essential premise of Tulane's insensitive to their greater ethical student's transcript together with program is the "trickle-up" theory and social responsibilities, not be­ the eighty-eight hours of credited of moral obligation-the belief that, cause such responsibilities do not course work. While not as profound if the organized bar is not yet willing exist or have not been recognized, or prolonged as clinical experience, to impose any public service man­ but because they are neglected in such service will affect many more date upon itself, the best way to legal education, thus nurturing in­ students. There are various avenues alter attorneys' attitudes is from the attention to them when lawyers for student placement to handle ground up by instilling in law stu­ enter practice." both civil and criminal matters in­ dents a sense of the responsibilities volved in a wide range of subject they must shoulder when they be­ D. S Berenson '90 areas. come members of the bar. If they

Justice Scalia Lectures at Duke

istrative Law Lecture before an en­ practice of accepting federal agen­ thusiastic audience of about 700 cies' reasonable interpretations of members of the Duke University ambiguous terms in statutes admin­ community. The Justice's remarks istered by such agencies. (The doc­ at Duke drew widespread press at­ trine gets its name from Chevron tention, including a comment on USA. Inc v. NRDC, 467 u.s. 837 National Public Radio's "Morning (1984), in which the Supreme Court Edition." mandated deference to agencies' Justice Scalia, long recognized "permissible" interpretations of law.) as a leading scholar and jurist in the Justice Scalia's visit to Duke Law administrative law field, spoke on School included meetings with Dean Duke Law Journal 'Judicial Deference to Administrative Pamela Gann, the Law School fac­ Interpretations of Law'~a topic that ulty, and the staff of the Duke Law he characterized as "not for sissies." journal. The text of Justice Scalia's On January 24, 1989, Justice His lecture analyzed the theoretical lecture will appear in the journal's Antonin Scalia of the United States background, practical implications, twentieth annual Administrative Law Supreme Court delivered the first and future direction of the "Chevron Issue, which will be published in annual Duke Law journal Admin- doctrine," the federal courts' recent summer 1989. DUKE LAW MAGAZINE / 52

Alumni Activities

Class of 1933 Class of 1951 Class of 1959 Rufus W Reynolds, United States james A. Scott is now of counsel Robert C. Hudson retired in Bankrupty Judge for the Middle to the Cleveland firm of Kaufman December 1988 as Counsel for the District of North Carolina, has now & Cumberland. Atlantic Division, Naval Facilities retired after forty-two years on the David Zwanetz remains in pri­ Engineering Command, Depart­ bench. During his career he handled vate practice in Philadelphia, where ment of the United States Navy over 40,000 cases-the most widely he was recently reappointed for after twenty-five years. At his re­ known being the recent PTL case another six year term to the Board tirement he was awarded the Navy in South Carolina. of Revision of Taxes & Board of Superior Civilian Service Award, View of Philadelphia. the highest honor that can be be­ Class of 1938 stowed on a civilian employee. Charles R. Warren has retired Class of 1952 from the firm of Warren, Parker, Lina Lee Spence Stout, has re­ Williams, Stilwell & Morrison in tired from the private practice of Class of 1960 Danville, Virginia. law in Durham, where she continues Rufus s. Hill, jr. has retired to make her home. as an attorney with the Interstate Commerce Commission.

Class of 1961 joseph C. 0 'Rorke retired on November 1, 1988 from First Citizens Bank in Raleigh after twenty-six years of service. He was a vice president and trust officer. His retirement plans include travel and volunteer work. Arthur B. Parkhurst has joined Mediation, Inc. of Ft. Lauderdale, Florida as a mediatorlattorney Medi­ ation, Inc. provides neutral third party intervention to settle major pending litigation.

Class of 1963 E. Lawrence Davis, a partner in the Raleigh office of Womble, Carlyle, Sandridge & Rice, has been selected Bill Moscoso '41 chairman of the North Carolina Democratic party Class of 1941 john W Wilcox has joined the Guillenno (Bill) Moscoso re­ David C. Goodwin '55 Berlin, Connecticut real estate firm cently received the Distinguished of ERA Phanco Realty, Inc. Service Medal from the United States Class of 1955 Department of the Army for exem­ David C. Goodwin, a partner in plary service to the Army in war the Miami office of Morgan, Lewis Class of 1964 and peace for thirty-six years. He & Bockius, has been named president­ Charles M Finn is now with the also was decorated by the Princi­ elect of the Miami Chapter of the International Association of Finan­ pality of Monaco with the "Order American Board of Trial Advocates. cial Planners, located in Atlanta. of Grimaldi," for seventeen years Goodwin is a former president of Lonnie 0. Grigsby is Executive of distinguished service as Hon­ the National Association of Railroad Vice President for Finance and Ad­ orary Consul General in Puerto Trial Counsel and is a fellow of the ministration of IBP, Inc. in Dakota Rico and the U.S. Virgin Islands. American College of Trial Lawyers. City, Nebraska. VOL. 7, NO.2 / 53

Charles A. Powell, III has joined the Birmingham, Alabama fIrm of Powell, Tally & Frederick. David Robinson II is now self­ employed in Miami. Richard H. Rogers has recently established three new businesses in the Dayton, Ohio area. He has a pri­ vate practice in that city, concen­ trating on construction/real estate, international law, general business, sports and entertainment law. He has also established Rogers Inter­ national, Inc. , an international mar­ keting fIrm; and, with his wife, Jane, has opened "Artwear Collage," which offers art fashion accessories from around the world. Robert C. Hunter '67 (left) andJames A. Adams '67, (right), co-winners of Drake Law School's Outstanding Professor Award. Class of 1965 Eric F Matthies, a partner in the fIrm of Matthies, Cross, deBoisblanc, Class of 1967 Class of 1969 Haldin & Robbins in Ocala, Florida, james A. Adams and Robert C. Christine Keller is a partner at has been appointed to the Dean's Hunter have been named co-winners the Galveston, Texas fIrm of Greer, Advisory Council of the School of of the Drake University Law School's Foutch, Herz & Adams. Veterinary Medicine at the Univer­ 1988-89 Outstanding Professor Wilson D. Perry, who is Assistant sity of Florida, Gainesville. Award by a vote of the 1989 grad­ General Counsel of Northwest Mu­ uating class. This marks the third tual Life Insurance Co. in Milwaukee, time that each has won the award has recently been appointed by the Class of 1966 from Drake, where they both serve Wisconsin Insurance Commissioner Barrington H. Branch has joined as professors of law. to serve on the Board of the Wis­ Corporex Companies, Inc. of Cin­ Robin Chambers is now with consin Insurance Security Fund. He cinnati as executive vice president. the fIrm of Corrs, Pavey, Whiting & has also been elected to the Board john Cairns has joined the Min­ Byrne in Melbourne, Australia. of the Montana Life and Health neapolis fIrm of Briggs and Moran. Insurance Guaranty Association. He continues to practice in the areas Class of 1968 Dale B. Ramerman now serves of real estate development, land Stuart M. Foss has been named as a Superior Court Judge for King use, zoning and public affairs law. Special Assistant to the General County, Washington. He is a director of the Minnesota Counsel, United States Government Peter A. White is President of Shopping Center Association and Printing OffIce in Washington, D.C International Skye Associates, Inc. formerly served as president of the Kent E. Mast has joined the of Washington, D.C Minneapolis City Council. Atlanta offIce of Hunton & Williams. F Sherwood Lewis has become Robert W Maxwell II is a partner Class of 1970 a partner at the Washington, D.C of the Cincinnati fIrm of Keating, Kenton L. Kuehnle, a partner fIrm of Silver, Stein & Mulliens. Meuthing & Klekamp. in the Columbus, Ohio offIce of Brian A. Snow was appointed Stephen P Pepe has been ap­ Thompson, Hine and Flory, has been General Counsel and Special Assis­ pointed chair of the Labor & Employ­ listed in The Best Lawyers in Amer­ tant to the President of Colorado ment Law Department of O'Melveny ica, published by WoodwardlWhite, State University in October 1988. & Myers in Los Angeles. He authored Inc. of New York. He was recog­ Before this appointment, he was in the 1988 Supplement to AVOiding nized in the real estate area. private practice in Denver for more and Defending Wrongful Discharge R. Mack Rudisill, jr: has joined than twenty years, specializing in Claims (Callaghan & Co. 1987). the Orlando fIrm of Foster & Kelly. corporate and securities law. He Stuart F Pierson has been named previously served as a trustee of a partner in the Washington, D.C Class of 1971 Colorado State and as a member offIce of the fIrm Davis, Wright & Patrick C. McGinley, professor of the Colorado State Board of Agri­ Jones, where he concentrates in the of law at West Virginia University, culture. He and his wife, Crissie, areas of litigation, media law, and was a visiting professor at the Uni­ reside in Ft. Collins. white-collar representation. versity of Oregon during the spring DUKE LAW MAGAZINE / 54 semester of 1989. In 1988, he was Kenneth W Starr was named Committee for Civil Rights Under on sabbatical and researched envi­ Solicitor General of the United States. Law in Washington, D.C ronmental law issues in England, (See story at p. 35.) Russell M. Frandsen has been Japan and Peru. He also testified DurwoodJ Zaelke announces the named a partner in the Los Angeles before the U.S. Senate Interior Com­ establishment of the Center for firm of McKenna, Conner & Cuneo, mittee on public land issues. International Environmental Law where he specializes in corporate Frank "Trip" Sizemore, who is (CIEL) which he will serve as direc­ and finance law. In January, he was serving his third term in the North tor. The CIEL, based in London, will appointed to a new four-year term Carolina State House, was chosen offer aid to Third World countries on the Private Industry Council of to chair the Guilford County dele­ and others with ecological prob­ the Los Angeles County Board of gation during the General Assembly's lems and will develop international Supervisors. The Council provides current session. laws to protect the environment. U.S. policy guidance and oversees oper­ M. john Sterba, jr. is the editor Senator John H. Chafee recently ation of federally funded job-training of Drafting Legal Opinion Letters, praised the CIEL as "a bold new ini­ programs for the County. published by John Wiley & Sons, Inc. tiative in international environmental johnnie W Mask, jr. has become law that holds great promise in our board certified in the specialty area Class of 1972 battle to address global environ­ of criminal trial advocacy by the james Scott McAlister has been mental challenges." National Board of Trial Attorneys. named Inspector General of the Utah He is a Senior Trial Attorney in the Department of Corrections in Salt Class of 1974 Office of Public Defender, Jersey lake City. Ellie G. Harris is an assistant City, New Jersey. professor of finance at the Univer­ Class of 1973 sity of Minnesota. She received her Class of 1977 Robert W Boyd, who practices Ph.D. in finance from Northwestern Lea F Courington is now a in Maitland, FlOrida, has been named UniverSity in 1987. partner in the Dallas ftrm of Gwinn a member of the Alma College Ira Sandron is now an attorney & Roby. (Michigan) Board of Trustees. Boyd with the Immigration & Naturaliza­ Dana N Levitt has been named is a 1969 graduate of Alma College tion Service of the United States First Vice President and Counsel of and lives with his wife, MaryCarol, Department of Justice in Washing­ Security Pacific National Bank in in Longwood, Florida. ton, D.C Los Angeles. Pamela B. Gann was one of Phil Sloan represented Duke Ember D. Reichgott, a State Sen­ three recipients of the North Caro­ Law School at the ceremony for ator of Minnesota and a corporate lina Association of Women Attorneys dedication of a new moot court­ attorney with The General Counsel 1988 Public Service Awards. These room complex at the Albany [NY] Ltd., has been named Chair of the awards are given based on contri­ Law School in September 1988. Civil Law Division of the Minnesota butions to women in the legal pro­ Patricia H. Wagner has joined Senate Judiciary Committee. Senator fession and women's rights under the Seattle, Washington ftrm of Heller, the law. Ehrman, White & McAuliffe. C. Wells Hall III, a partner focus­ ing on federal and state taxation and estate planning in the Charlotte, Class of 1975 North Carolina office of Moore & Nathan C. Goldman has been Van Allen, has been elected a Fellow elected Vice President of the National of the American College of Probate Space Society, a 20,000-member Counsel. The ACPC honors lawyers organization dedicated to further who have distinguished themselves the exploration of outer space. He in the areas of wills, trusts, estate has also been elected to the Board planning and estate administration. of Directors of the Houston Space Andrew F Reish has left active Business Roundtable. (See review duty with the United States Air Force of his book on p. 40.) and has joined the Falls Church, Paul H. Tietz has become a part­ Virginia intellectual property firm ner in the Minneapolis, Minnesota of Birch, Stewart, Kolasch & Birch, firm of Popham, Haik, Schnob rich where he is with the litigation group. & Kaufman, Ltd. Kenneth G. Starling has joined the firm of Sutherland, Asbill & Bren­ Class of 1976 nan, as a partner in their Washing­ Barbara R. Arnwine is now the ton, D.C office. Executive Director of the Lawyers Ember D. Reichgott '77 VOL. 7, NO.2 155

Reichgott has been a Senate leader Class of 1979 in legislation concerning corporate Michael B. Lichtenstein has been issues, family violence and court named assistant general counsel of matters. the Marriott Corporation, resident Geoffrey H. Simmons has been at the international headquarters of elected President-elect of the Wake Marriott in Washington, D.c. He County, North Carolina Bar Associ­ has responsibility for legal matters ation. Simmons is in private practice affecting corporate procurement in Raleigh, and also serves as pres­ and distribution, and real property ident of Legal Services of North dispositions. Carolina. Steven G. Polard has been made jay V Stribling, an attorney in a partner of the firm of Graham Dallas, has been certified by the & James, and has been appointed Texas Board of Legal Specialization head of the Bankruptcy Department in oil, gas and mineral laws. of the firm's Los Angeles office. David H. Wilder became a part­ Class of 1978 ner in the Albany, New York firm Robert M. Blum has become a of Cooper, Ervin, Savage, Nolan & partner in the San Francisco firm of Renee J Montgomery '78 Heller on January 1, 1989. He con­ Thelen, Marrin, Johnson & Bridges. centrates in the areas of commer­ mittee of the Public Utility Law ciallitigation and bankruptcy. Section of the ABA. Steven D. Wasserman has been Renee]. Montgomery, a partner named a partner at the San Francisco in the Raleigh law firm of Adams, firm of Sedgwick, Detert, Moran McCullough & Beard, was recently & Arnold. elected President of the North Caro­ Pam Ford Wright is now a staff lina Society of Healthcare Attorneys, attorney for Legal Services of Middle a non-profit association that aims to Tennessee in Nashville. make available to its members edu­ cational materials and programs on emerging issues in health law. Chris A. Rallis has been pro­ moted to senior counsel in the law Class of 1980 department of Burroughs Well come Kim]. Barr remains with Arthur Company in Research Triangle Park, Andersen & Co., now resident in North Carolina. their Seattle, Washington office. james T Crouse has been named a partner in the firm of Speiser, Krause & Madole, a plaintiffs general negligence firm which concentrates in aircraft accident litigation. He is resident in the firm's San Antonio, Gregory S. Lewis '78 Texas office. john H. Hickey, a partner in the Gregory S. Lewis recently spoke Miami firm of Hickey & Jones, re­ at a Bureau of National Affairs Con­ cently spoke before the International ference on "Coping with Corporate Association for Financial Planning Change: Labor and Employment Law Symposium in Miami. His topiC was Issues Affecting Plant Closings, Joint "Professional Liability Insurance: Ventures, Acquisitions and Other Protecting Yourself from Angry Client Corporate Restructurings," in Wash­ Litigation." ington, D.c. Lewis is a partner in H. Glenn 1Ucker has become the D.c. office of Morgan, Lewis & a partner in the Newark, New Jer­ Bockius, where he practices labor sey firm of Greenberg, Dauber & and employment law on behalf of Epstein. management and employers. He is W Steven Woodward is now also the Vice-Chair of the Labor a partner in the Philadelphia office Relations and Employment Com- Chris A. Rallis '78 of Drinker, Biddle & Reath. DUKE LAW MAGAZINE / 56

Class of 1981 Dicus, where she specializes in civil Class of 1984 john]. Coleman, III was named litigation. Virginia C. Antipolo has become a partner of the Birmingham and Flurin von Albertini has be­ a shareholder in the Everett, Wash­ Montgomery, Alabama law firm of come Assistant Vice President of ington firm of Anderson Hunter, Balch & Bingham, effective January UBS Securities, Inc. in New York where she continues her practice 1, 1989, where he practices in the City. in corporate and business counseling area of labor and employment law. and employee benefit and retirement His article, "When Injured Workers Class of 1983 planning. Return," was published in the Febru­ Lisa P. Ansilio has joined Beck­ Diane M. Barber has been named ary 1989 issue of Personnel journal. man & Associates in Philadelphia. General Counsel of the Franklin john G. Milakovic was named a Robert W Griffith, jr. has opened Mint in Philadelphia. partner in the Harrisburg, Pennsyl­ a solo practice in Woodbridge, Michael F Bartok has been vania fum of Beckley & Madden Virginia. named Associate Counsel of Gulf on January 1, 1989. Reid A. Holter has been named & Western, Inc. in New York City. William K. Richardson is Re­ a partner in the Rochester, New Arthur L. Coleman continues to gional Marketing Manager for Wang York firm of Lacy, Katzen, Ryen practice with the Columbia, South Laboratories, Inc. in Los Angeles. & Mittleman. Carolina firm of Nelson, Mullins, Michele Miller Sales was named Michael P. Lampert is now a Riley & Scarborough. He also now a partner of the Seattle, Washington principal in the law firm of Jacob­ teaches part-time at the University firm of Oles, Morrison & Rinker son, Berkowitz & Lampert in Boca of South Carolina Law School in on January 1, 1989. Raton, Florida. He practices primarily the areas of legal research and writ­ David C. Tarshes has become a in the areas of tax and estate & busi­ ing and constitutional law. partner in the Seattle, Washington ness planning. He is also an instruc­ David]. Farrell announces the firm of Davis Wright & Jones. tor at Florida Atlantic University, opening on May 1, 1989 of the Mari­ Sharon Kronish Wasserman has teaching corporations. time Law Offices of Squires & Farrell been named a partner at the firm Patrick T. Navin has become in Seattle. of Stein, Lubin & Lerner in San Fran­ associated with the Chicago office HiroJumi Goto is now resident cisco, where she specializes in real of Baker & McKenzie, where he con­ in the Fremont, California office of estate and fmance. tinues to specialize in tax litigation Sumitomo Metal Mining, U.S.A., Inc. and ERISA matters. john H. jameson has joined Orner G. Poirier has joined the Malchow & Company of Washing­ Class of 1982 United States Attorney's Office in ton, D.c., where he is a Democratic Nina F Collins has joined the Tampa, Florida, as of March 1, 1989. political consultant. firm of Blakesler, Chambers & Peter­ C. Scott Rassler is now an in­ Michael G. jarman has become son in Traverse City, Michigan. surance advisor in Ft. Lauderdale, an associate at McNees, Wallace & Peter A. Cotorceanu has become Florida with Massachusetts Mutual, Nurick in Harrisburg, Pennsylvania. a partner in the Williamsburg, Vir­ specializing in business and estate Evelyn M. Pursley has been pro­ ginia fum of Graber, Knicely & planning matters. moted to Associate Dean of Alumni Cotorceanu, where he specializes Bruce H. Wynn has become an Affairs at Duke Law School, where in estate planning, trusts and civil associate in the Atlanta firm of Han­ she also serves as a Senior Instruc­ litigation. sell & Post, where he practices pri­ tor in Law. Margaret A. Delong has become marily in the area of employee and Eric M. weiss has become an an associate at the Raleigh office of executive compensation laws. associate at Skadden, Arps, Slate, leBoeuf, Lamb, Leiby & MacRae. David A. Zalph has joined the Meagher & Flom in New York City. Dennis R. Dumas is now with Boca Raton, Florida firm of Moore, the New York City firm of Winthrop, Farmer, Menkhaus & Juran, where Stimson, Putnam & Roberts. he practices principally in the areas Class of 1985 Richard A. Lukianuk has been of real estate, securities, banking, Gill P. Beck, a Captain in the named Associate General Counsel and corporate and municipal fmance. United States Army, is now a litiga­ of Sheller-Globe Corporation in Nancy L. Zisk is an associate tion Attorney assigned to the Penta­ Detroit, Michigan. at Ross, Dixon & Masback in Wash­ gon in Washington, D.c. Richard K. 0 'Donnell has joined ington, D.c., where she practices Aaron jay Besen has become an the Atlanta firm of Summers, Jones labor law, focusing primarily in the associate in the Portland, Oregon & O'Donnell. area of equal employment opportu­ office of Weiss, DesCamp & Botteri, jennifer A. Putman is a partner nity. She recently served as co-chair where he specializes in federal and in the Kansas City office of Arm­ of a Bureau of National Affairs con­ state tax, and corporate, partnership strong, Teasdale, Schlafly, Davis & ference on "Law Firms in Transition." and non-profit law. VOL. 7, NO.2 157

Janet Ward Black has joined the Mark D. DeSantis is now an national arbitration. firm of Wallace & Pope in Salisbury, associate with the Oakland, Cali­ Thaddeus S. Gauza is now an North Carolina. fornia firm of Kincaid, Gianunzio, associate at the Chicago firm of Free­ Alan M. Cregg is now with the Caudle & Hubert. man, Freeman & Salzman. firm of Cregg & Cregg in Lawrence, Christopher j. Hagan has joined Ross N Katchman has returned Massachusetts. the Washington, D.C firm of Davis, from Taiwan, and is now an asso­ Daniel F Danello has become Graham & Stubbs. ciate at McCutchen, Doyle, Brown an associate in the Washington, Terry R. Kane serves as a legal & Enersen in San Jose, California. D.C firm of Miller & Chevalier. advisor and legislative assistant to Elizabeth A. Miller is an associate Gordon A. Kamisar is a liti­ the Chairman of the Joint Chiefs with the firm of Bardehle Pagenberg gation associate at the Washington, of Staff in Washington, D.C Dost Altenburg Frohwitter Geissler D.C firm of Wickens, Koches & Cale. Marcel HR. Schmocker is now & Partner in Munich, West Germany. David C. Profilet is now an serving as corporate counsel to In­ Beginning in August 1989, she will associated with the Miami office spectorate International AG in Bern, serve as clerk to the Honorable Hal­ of Stroock & Stroock & Lavan. Switzerland. dane R. Mayer on the Court of Dana Whitehead is an associate Appeals for the Federal Circuit. in the Baltimore firm of Frank, Bern­ Class of 1987 Robert H Nagle is now an asso­ stein, Conaway & Goldman. Rachel Contorer is now an asso­ ciate at Christensen, White, Miller, Thomas M. Wilson is now an ciate in the Chicago firm of Pope, Fink & Jacobs in Los Angeles. associate with Barrack, Rodos & Ballard, Shepard & Fowle. Ellyn Roberts has joined the San Bacine in San Diego, California. David j. DeMar has recently Francisco firm of Greene, Radovsky, become an associate at the firm Maloney & Share as an associate. of Jacob, Medinger & Finnegan James A. Thomas has become Class of 1986 in New York City. an associate at the Atlanta law firm Elyce Stuart Abraham is now Benoit Feron has joined the of Vincent, Chorey, Taylor & Feil. with the New York City firm of Brussels law firm of Puelinckx, lin­ Pircher, Nichols & Meeks. den, Grolig & Uyttersprot where Class of 1988 Kathleen j. Byrnes is an associate he is an associate in the field of Jay B. Bryan has joined the at White & Robbins in Philadelphia. international business and inter- Atlanta firm of Alston & Bird. Personal Notes

'75-Paul M. Wright and his a partner in the Charlotte firm of M.D. '85) are pleased to announce wife announce the birth of their Caudle & Spears. the birth of their daughter, Rachel daughter, Faith Marie, on March 24, -Thomas R. ~st and his wife, Elizabeth, born March 18, 1989. 1988. Dana Marie Hagh, are proud to an­ -Ronald G. Hock married Barbara nounce the birth of their first child, C Vinson on November 12, 1988. '76-Byron L. Huffman and his a daughter named Katharine Eliza­ They reside in Tampa, Florida, where wife, Kathleen (Fuqua School of beth, born November 13, 1988. Ron is an associate with Foley & Business '75) are pleased to announce -Mary Elizabeth Dunn White and Lardner & Hill. the adoption of two brothers, Victor her husband, Don, are pleased to -Michael P Lampert married Angela Julio, age 5, and Jonathan, age 3, report the birth of their son, Wil­ Gallicchio on December 6, 1987. from Costa Rico. liam Raley White, on June 7, 1988. They reside in West Palm Beach, Florida. '77 -Jay V Stribling and his wife, '81-Michael B. Kupin was mar­ -CO Scott Rassler was married to Deborah, are pleased to report the ried to Rhonda Kaplan on October Karen Rodensky on March 4, 1989 birth of their third child and third 22, 1988 in Roslyn, New York. in Ft. Lauderdale, Florida. son, Robert Allonby Curnutte Strib­ Michael is an associate at the Newark ling, on December 17, 1988. firm of Sells Cummis Zuckerman '84-John H Jameson and Radin Tischman Epstein & Gross. Connie Myers were married on '79-Harold C. Spears married December 17, 1988 in Orangeburg, Teri Habich on March 18, 1989 in ,83 -Susan Cole Dranoff and South Carolina. They make their Charlotte, North Carolina. Hal is her husband, Glenn (Duke A.B. '81, home in Washington, D.C DUKE LAW MAGAZINE / 58

-George C McFarland, jr: and his Morgantown, West Virginia. They child, a son named Taylor Evan, wife are the proud parents of a make their home in Durham, where born November 4, 1988. daughter, Megan Davis McFarland, Rene is Director of Case Manage­ -Amy L. Majewski and Paul M. born October 20, 1988. ment of the Private Adjudication Aggugia, Class of '88, were married Center, an afftliate of the Law School. on January 7, 1989. They make their ,85 -james E. Lilly and his wife, home in New York City, where Amy Dawn, are pleased to announce the , 87-Scott A. Cammarn was mar­ is an associate with Holtzmann, birth of their third child, a daughter ried to Heather L. Whirlow (Duke Wise & Shepard and Paul practices named Kaitlin Elizabeth, born May 3, M.A. '88) on September 10, 1988. with Willkie, Farr & Gallager. 1989. They make their home in Columbus, Ohio, where Scott is an associate '88-Paul M. Aggugia was '86-MariaE. ArosemenaArango at Jones, Day, Reavis & Pogue. married to Amy L. Majewski, Class and her husband, Richard, are the -Erika Chilman married Neal of '87. (See above.) proud parents of their fIrst child, a Richard Roach, Jr. on September 3, -Kirk Halpern married Lori Haim­ daughter named Victoria Eugenia 1988. Erika practices securities liti­ owitz on May 14, 1988 in Jackson­ Arango on January 3, 1989. gation at Carrington, Coleman, ville, Florida, where Kirk is an asso­ -Christopher M. McDermott, and Sloman & Blumenthal in Dallas. ciate at Commander, Legler, Werber, his wife Lucy, are pleased to an­ -Rachel Contorer married Dr. Neil Dawes, Sader & Howell. nounce the birth of their second Bradford Perlman, on May 6, 1989 -Linda H. McCown and her hus­ daughter, Sarah Mary, on December in Northbrook, Illinois. They make band, Butch Boone, are pleased to 6, 1988. their home in Evanston. announce the birth of their daughter, -C Rene Stemple was married to -David P. jones and his wife, Lynn, Kristen Vick Boone, born on No­ Kenneth A. Ellis on April 8, 1989 in are the proud parents of their fIrst vember 7, 1988.

Obituaries Class of 1950 University and had been in private Hedley G. Pingree, of Goffstown, practice in Jacksonville, Florida and Class of 1937 New Hampshire died on August 13, Charleston, South Carolina. He is Emma Lee Smith Crumpacker 1988. He was a retired District Court survived by his wife, Cecelia; a son, died April 13, 1989, in Cape Coral, judge and practiced with the Man­ John]. Irwin III; a daughter, Janet Florida. Ms. Crumpacker was a na­ chester fIrm of Wiggin & Nourie. Mary Mulrow; two brothers; fIve tive North Carolinian, and lived in He had also served as a master of sisters; and four grandchildren. Manteo before retiring to Florida the Hillsborough, New Hampshire nine years ago. She is survived by a County Superior Court and in 1986 Class of 1960 daughter, Dottie C. Lowery of Cape was an administrative law judge for ]. Crispin Soich, of Pittsburgh, Coral; a son, Bill Crumpacker of Ft. the United States Department of died in early May, 1989. He was Myers, Florida; two sisters and three Labor in Camden, New Jersey. Pin­ with the fIrm of Stokes, Lurie & grandchildren. gree worked with many local govern­ Tracy and specialized in represent­ ment projects, and church, business ing hospitals and doctors involved Class of 1939 and educational organizations. He in malpractice claims. He was pre­ james W Blackburn died Octo­ is survived by his wife, Marilyn War­ viously a member of the faculty of ber 11, 1988 in Louisville, Kentucky. ren Pingree of Goffstown; a son, the University of Pittsburgh Grad­ He was a retired attorney for the James, also of Goffstown; a daughter, uate School of Public Health, and Federal land Bank, and had previ­ Nancy Pingree MacKenzie of Sacra­ was a former solicitor for the city ously been an assistant in the Ken­ mento, California; and grandchildren. of Clairton, Pennsylvania. Soich tucky Attorney General's offIce and is survived by his wife, Zella Kay was a major in the Army Reserve. Soich; a son, Terry of Phoenix; a Blackburn was also a World War II Class of 1951 daughter, Cheryl Long of Orlando; veteran. He is survived by his wife, john jackson Irwin, jr: of Tucson, his parents, two sisters, and two Clare Y. Blackburn, and a brother, Lee Arizona died on February 2, 1989. granddaughters. H. Blackburn of Slidell, Louisiana. He was professor emeritus at the A memorial fund has been es­ University of Arizona School of Law, tablished for Soich. Classmates and Class of 1949 where he specialized in the fIelds friends who wish to contribute to Harold T Fletcher; jr:, of Grand of labor law and worker's compen­ the fund may send checks to the Rapids, Michigan, died on March 18, sation. Irwin had previously been a Major Projects OffIce of the Law 1988. member of the faculty at Creighton School. VOL. 7, NO.2 I 59

UPCOMING EVENTS

HALF-CENTURY WEEKEND SEPTEMBER 29-30, 1989 Fiftieth Reunion celebration for the Classes of 1938, 1939 and 1940 and a special Half-Century celebration for all alumni who have celebrated the 50th anniversary of their graduation from Duke Law School. Reunion Coordinator: Hubert K. Arnold '39 6616 Aberdeen Street Wichita, Kansas 67206 (316) 684-2772 LAW ALUMNI WEEKEND OCfOBER 20-22, 1989 FRIDAY, OC1DBER 20, 1989 2:00 p.m . Registration Desk Opens, Law School Lobby 2:00 p.m. Law Alumni Council and Board of Visitors Meeting, Law School 6:00 p.m. Reception, Gross Chemistry Lobby 9:00 p.m. Hospitality Rooms available at Hotels SATURDAY, OC1DBER 21, 1989 9:00 a.m. Registration Desk Opens, Law School Lobby 9:00 a.m. Coffee and Danish, Law School 10:00 a.m. Professional Program and Law Alumni Association Meeting, Law School 12:00 Noon North Carolina Barbeque catered by Bullock's Bar-B-Que, Law School Lawn 1:30 p.m. Golf and other campus activities 6:00 p.m. Reception and Reunion Dinners (by class) 9:00 p.m. Hospitality Rooms available at Hotels SUNDAY, OC1DBER 22, 1989 9:00 a.m. Barristers Breakfast*

Reunion Coordinators: 1949 Charles T. Speth 1969 David G. Klaber Speth & Speth Kirkpatrick & Lockhart Marion, South Carolina Pittsburgh, Pennsylvania (803) 423-7648 (412) 355-6500 1954 S. Perry Keziah, Jr. 1974 Jerry W. Jernigan Keziah, Gates & Samet Wray; Layton, Cannon, Parker & Jernigan, PA. High POint, North Carolina Charlotte, North Carolina (919) 889-6900 (704) 373-0751 1959 Harrison K. Chauncey, Jr. 1979 Sara S. Beezley Alley; Maass, Rogers, Lindsay & Chauncey Route 2, Box 317A Palm Beach, Florida Pittsburg, Kansas 66762 (407) 659-1770 (316) 724-4111 1964 David G. Warren 1984 Sol M. Bernstein Duke University Medical Center Windels, Marx, Davies & rves Dept. of Health Administration New York, New York Durham, North Carolina (212) 237-1094 (919) 684-4188

*Barristers of the Law School are alumni and friends who contribute $1,000 or more annually to Duke Law School. Contributors of $500 or more annually are Barristers if they are judges, teachers, government officials or graduates of less than seven years. DUKE LAW MAGAZINE I 60

OTHER UPCOMING EVENTS American Bar Association, 1989 Annual Meeting Monday, August 7, 1989, Duke law School Alumni Reception, 6:00 to 7:30 p.m., Hilton Hawaiian Village, Sea Pearl Suite I-II . Please join Dean Pamela Gann and other alumni. Conference on Career Choices The fourth annual Conference on Career Choices will be held in February 1990. Panels will feature Duke law alumni who will discuss their professional careers as well as respond to topics of particular interest and concern to students. Barristers Weekend Barristers Weekend will be March 23-24, 1990. This special weekend is held annually for members of the Barristers Club. For more information on Upcoming Events, call the law Alumni Office at (919) 489-5089.

Alumni and faCUlty enjay renewing friendships during events in 1988-89. CHANGE OF ADDRESS

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