The Duquesne University School of Law Newsmagazine Volume 29 • NumberTwo Spring 1996 BAR/BRI's cutting edge computer software will: of all MBE topic areas with multiple-choice questions accompanied by detailed explanatory answers. n in over 100 MBE subtopics with StudySmart™'s detailed score report. I after each question from BAR/BRI's renowned Conviser Mini Review.

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BAR REVIEW The Bar Reri 1· Course ~etected 1~ ore, Than :00 000 Lawyer Orer 7he Pa ,·25+ lear JURIS Volume 29 Number Two Spring 1996

Editor-in-Chief Mary Rose Castelli CoverS tory Executive Editor Stephanie D. Smith Duquesne University President and Law Professor John E. Murray Jr. says we should Managing Editor not fear the future of legal education, but Tsegaye Beru instead embrace it and the changes it brings.

Assistant Page4 Managing Editor Lorraine V. Lawrence Science and the Law • Profile Senior Editor Steven M. Regan Duquesne University Law Professor and nationally renowned forensic pathologist Executive Dr. Cyril Wecht returns to the Production Editor Allegheny County Coroner's Office. Jim Urban Page 12 Production Editor Eileen Flinn Science and the Law • Environment Photography Editor Mary P. Murray The Clean Air Act is costly to Pennsylvania businesses, but companies in Ohio and Photographers West Virginia are not subject to the same Anthony Frego burdensome restrictions. Michele A. Forte Page 23 Contributing Writers Nikolay Diankov Dave Kaleda Professor Bruce Ledewitz Also Inside .. . Dennis M. Moskal Editorial: What is Law? ...... 2 Carl Ronald Profile: Senator Rick Santorum ...... 3 Kim Strohm Elisa Tighe A Student's View of Future Legal Education ...... 9 Science and the Law: Judicial Conference ...... 15 Editorial Staff Forensic Evidence ...... 17 Tim Burns Patented Genetics ...... 20 Dawn Marron HIV and Health Care ...... 26 Mary Beth McCarthy Law and Science Fiction ...... 29 David Spurgeon Feature: Attorneys Assist Arts Groups ...... 32 Jeff Wertz

Faculty Advisers Prof. Kenneth Gormley Assistant Dean John Rago I - -- . --. -- ~

What is Law? Editor Looks to Ancient Rome for Answers

hen I attended graduate school Even if there was no written bravery and view it can be readily understood that to study rhetoric, many friends following its decrees in doing so noble those who formulated wicked and un­ asked me, 'What is rhetoric any­ a deed. Even if there was no written law just statutes for nations, thereby break­ way?" I explained the rhetoric of against rape at Rome in the reign of ing their promises and agreements, put !socrates, continued with Plato and Lucius Tarquinius, we cannot say on into effect anything but "laws." It may Aristotle, discussed Cicero and that account that Sextus Tarquinius did thus be clear that in the very definition Quintilian on rhetoric, John Locke's con­ not break that eternal law by violating of the term "law" there inheres the idea tributions, and on through Edward Lucretia, the daughter of Tricipitinus! and principle of choosing what is just Corbett. For reason did exist, derived from the and true. I ask you then, Quintus, ac­ However, I found my friends fall­ nature of the universe, urging men to cording to the custom of the philoso­ ing asleep soon after my rendition of right conduct and diverting them from phers: if there is a certain thing, the lack Plato's Gorgias. How could I possibly wrongdoing, and this reason did not of which in a State compels us to con­ come up with one simple definition? Re­ first become Law when it was written sider it no State at all, must we consider cently my husband and I began a rather down, but when it first came into exist­ this thing a good? lengthy discussion trying to come up ence; and it came into existence simul­ Quintus: One of the greatest goods, with a simple definition for "law." I taneously with the divine mind. Where­ certainly. found myself flipping through my dusty fore the true and primal Law, applied Cicero: And if a State lacks Law, graduate books. Cicero had the answer, to command and prohibition, is the right must it for that reason be considered no one I hope you will mull over. reason of supreme Jupiter. State at all? Quintus: I agree with you, brother, Quintus: lt cannot be denied. that what is right and true is also eter­ Cicero: Then Law must necessarily nal, and does not begin or end with writ­ be considered one of the greatest goods. Mary Rose Castelli ten statutes. Quintus: I agree with you entirely. Editor-in-Chief Cicero: Therefore, just as that di­ Cicero: What of the many deadly, vine mind is the supreme Law, so, when the many pestilential statutes which Cicero: Ever since we were children, [reason] is perfected in man, [that also nations put in force? These no more de­ Quintus, we have learned to call, "If one is Law, and this perfected reason exists] serve to be called laws than the rules a summon another to court," and other in the mind of the wise man; but those band of robbers might pass in their as­ rules of the same kind. But we must rules which, in varying forms and for sembly. For if ignorance and unskillful come to the true understanding of the the need of the moment, have been for­ men have prescribed deadly poisons, matter, which is as follows: this and mulated for the guidance of nations, instead of healing drugs, these cannot other commands and prohibitions of bear the title of laws rather by favor than possibly be called physicians'; neither in nations have the power to summon to because they are really such. For every a nation can a statute of any sort be righteousness and away from wrongdo­ law which really deserves that name is called a law, even though the nation, in ing; but this power is not merely older truly praiseworthy, as they prove by ap­ spite of its being a ruinous regulation, than the existence of nations and States, proximately the following arguments. It has accepted it. Therefore Law is the it is coeval with that God who guards is agreed, of course, that laws were in­ distinction between things just and un­ and rules heaven and earth. For the di­ vented for the safety of citizens, the pres­ just, made in agreement with that pri­ vine mind cannot exist without reason, ervation of States, and the tranquility mal and most ancient of all things, Na­ and divine reason cannot but have this and happiness of human life, and that ture; and in conformity to Nature's stan­ power to establish right and wrong. No those who first put statutes of this kind dard are framed those human laws written law commanded that a man in force convinced their people that it which inflict punishment upon the should take his stand on a bridge alone, was their intention to write down and wicked but defend and protect the good. against the full force of the enemy, and put into effect such rules as, once ac­ order the bridge broken down behind cepted and adopted, would make pos­ -Marcus Tullius Cicero (106-43 B.C.), him; yet we shall not for that reason sup­ sible for them an honorable and happy philosopher, orator and statesman, was a pose that the heroic Codes was not life; and when such rules were drawn courageous proponent of, and martyr for, obeying the law of bravery and follow­ up and put in force, it is clear that men republican principles. This excerpt is from ing its decrees in doing so noble a deed. called them "laws." From this point of Book II of his dialogue.

2 \ Spring 1996 -- ~ Prqftle ------'

Santorum: Reform Isn't Easy

In 1990, Santorum launched his Santorum is eager to let the states own grass-roots campaign for a seat in go to bat on welfare programs, stating, the U.S. House of Representatives, shak­ "The states will do a much better job at ing thousands of hands in the process implementing these programs in a more and unseating a twelve-year incumbent, rational way than we ever had in Wash­ Congressman Doug Walgren. ington, and I'm excited about the poten­ In his first term of office, Congress­ tial." The Senator would like to encour­ man Santorum proved his ability to age a movement back to the states in think independently of party lines and some areas of legislation. t's sort of a free for all," says U.S. ruffle some feathers in the process.In Pennsylvania's new GOP Senator Senate newcomer Rick Santorum 1991, he and six other freshman Repub­ feels there is a lot of work still needed about the opportunity to take the licans, fondly known as the Gang of on such areas as the Superfund, legal lead on the Senate floor on a lot of dif­ Seven, exposed the U.S. House of reform and deregulation. Critics have ferent issues. In the House of Represen­ Representative's banking scandal. been quick to chastise him and other Re­ tatives, with 435 members observing an After an exhausting and well-or­ publicans on some of those cuts. A 40 unwritten pecking order, you have to ganized campaign for the United States percent cut on federal funding of Neigh­ wait awhile to be heard. Santorum ac­ Senate in which he became a key voice borhood Legal Services has brought knowledges he has just as much right on topics of welfare and health care re­ cries of foul play from the Democrat mi­ to be in the Senate as anyone else. An form, Santorum finds himself where he nority. Santorum defends the GOP po­ old axiom states, "When you get to the is today. Continuously traveling to dif­ sition, stating that the funding has been United States Senate, you wonder how ferent cities and towns in the state, dis­ misused as a political tool. you got there, and after six months, you cussing and educating Pennsylvania Another area of criticism for the wonder how everybody else got there." citizens about his proposed health care Republican plans is the area of medi­ After one year in the Senate, the reforms, he won the seat from incum­ care. "It's been saved seven times in the freshman Senator offers the following bent Harris Wofford in November 1994. past when it was going bankrupt," says advice to newcomers: "The most impor­ Once in the Senate, early successes Senator Santorum. "Each of those times, tant thing you can do on the Senate floor resulted in the Republican majority what we did was increase taxes." is make sure you never take anything moving roughly half of the GOP Con­ Unfortunately for the new Repub­ that occurs on the floor personally." tract with America through the House. lican majority, there is no equitable rem­ Just 15 years ago, a young Rick These successes were thwarted though edy of specific performance for this con­ Santorum, only 23 years old at the time, because senate Republicans, despite tract; it is one built on perspiration and graduated from the University of having enough votes to command a hard work. Pittsburgh's accelerated one-year MBA majority, found Democratic filibusters program. Upon graduation, Santorum and a presidential veto formidable ob­ entered the political sphere, working as stacles. While the Republican majority Dennis M. Moskal interned in the Congres­ an administrative assistant for State has stayed together under the support sional office of Rick Santorum in 1994 and Senator J. Doyle Corman, a member of of Senator Bob Dole, the Senate Major­ on Senator Santorum's 1994 senate cam­ the Pennsylvania Senate since 1977. ity Leader, the GOP is learning valuable paign. Moskal is a second-year day student While working for Senator Corman, lessons about the ability of a Republi­ at the Duquesne University School of Law. Senator Santorum enrolled in Dickinson can dominated Congress trying to lead School of Law, earning high honors and the nation into reform with a Democrat receiving his Juris Doctorate in 1986. in the White House.

Spring 1996 3 n the waning years of the mil­ lennium, the legal profession and legal education confront massive challenges. The future of legal education can only be gauged in the context of the future of the profession. It is important to recognize the current challenges to the profession. While criticism of lawyers in soci­ ety has been with us from time imme­ morial, serious criticisms as well as law­ yer jokes have reached unprecedented Understanding levels of meanness, and even worse, dis­ dain. The conventional wisdom has the entire profession pursuing frivolous claims, Jarndycian delays and fees predicated exclusively upon greed. Older members of the profession yearn for the days of greater civility at the bar. They express anxiety over the current economics of practice where the supply Borrowing wisdom from Cardozo, Duquesne of lawyers severely outstrips the de­ University President and Law Professor john mand. This ambience casts a pall over the ideal of practicing law in the grand E. Murray ]r. says there is no reason to fear tradition with its attendant virtues of diligence, meticulousness, trust, reliabil­ the future of legal education-Lawyers will be ity, decorum and a love of the profes­ sion. more high tech and efficient than ever, and There are frivolous actions and there are signs of greed. There is behav­ lawyering will remain a noble profession. ior that is unethical and more that bor­ ders on the unethical. Such behavior is of who we are came from Edmund Burke As in the 18th century, the num­ often widely promulgated while virtu­ more than 200 years ago, and it still rings ber of lawyers in our highly litigious de­ ous efforts are ignored. Lay ignorance true. When asked by a colleague why so mocracy looms large. One could argue of the true adversary process is perva­ many Colonists studied law, Burke sug­ that we have now reached the zenith of sive. Televised samples of that process gested that his colleague should under­ supply. Yet, as we will see, it is the often present a series of distortions in stand what these lawyers do. They are, uniqueness of a legal education that highly publicized trials that manifest he said, prompt in attack, ready in defense provides a workable solution to this varying levels of incompetence and and filled with resourcefulness-they challenge and other challenges. questionable advocacy. To paraphrase sniff tyranny in every tainted breeze. Law schools and the bar have the Bard, the ignoble acts of lawyers live Burke described a classic and noble pro­ made conscious choices in America to long after them, but the pro bono acts fession. The law student must be educated open wide the door of opportunity to are oft interred with their bones. There to understand the nobility of the profes­ practice law. Among the many univer­ is a formidable amount of pro bono sion and be made ready to practice in the sities that added law schools in the last work performed regularly by our sisters grand tradition. half of the twentieth century, some had and brothers. Yet it is neither publicized But where will she practice? Why go motives that were less than noble. Com­ widely nor is it recorded in any reliable to law school if, in fact, the opportunities pared to some other disciplines, law fashion. for practice continuously diminish as the schools were much less costly and, in The overwhelming majority of law schools produce even more graduates some cases, became "cash cows" for the lawyers in America work very hard and for a saturated market? In a letter to his university. The size of a class in a typi­ genuinely care about their clients and mother, one new lawyer expressed de­ cal law school would be viewed as society. Notwithstanding the slings and spair over the large number of lawyers in much too large in any other graduate arrows, most of the fortunes of our society. He even wondered if he would program. The standard bearer in this de­ neighbors as well as their futures con­ starve to death in this profession. The velopment was Harvard where student tinue to be trusted to lawyers, and young man was John Adams who later rosters began to include photos to en­ rightly so. One of the better descriptions found himself leading a fledgling nation. able the teacher to identify individuals

4 I l Spring 1996 ~~~ .. ~ . .~egarEducation

among the large throng who sat before most enthusiastic students that a teacher over, the principles, ideas and rules of the feet of the masters. If Harvard could would ever desire? The "game" was law are not mere information. They are provide effective legal education with quickly learned by the 1 L who often the lawyer's surgical instruments in per­ large classes, who would argue with that became obsessed with the intellectual forming delicate operations in the con­ standard? parry and thrust of the class in torts, flict resolution process. If a surgeon can Notwithstanding the size of the contracts and other foundational only identify surgical instruments but class, law professors became efficient courses. For decades, this methodology not use them with consummate skill, the and effective in pursuing some form of co-existed with the primitive lecture patient is in peril. Similarly, a law stu­ the socratic method, giving the lie to method by teachers in other disciplines dent who can parrot rules of law with­ claims in other disciplines that it could who emulated their professors in the tra­ out a true understanding and facility to not be done. This interactive mode, ditional method. It is only in recent years apply them to complex fact situations is however, became quite natural for the that many other disciplines have pur­ incapable of serving a client effectively. generations of law professors who had, sued anything like an interactive meth­ In this sense of basic analytical themselves, witnessed the effective use odology. skills, the goals of legal education have of a quasi-socratic methodology on a The popularity of legal education not and will not change. Beyond a com­ regular basis during their halcyon days is based, in part, on this methodology. prehensive understanding of the prin­ as law students. They loved almost ev­ Compared to four years of lecture, the ciples and rules of law, analysis is and ery minute of it and they happily con­ case/problem method is exciting. But will remain the essential focus of legal tinued that methodology from the first the method is not used because it is ex­ education. In many associations with moment of their joyous knighthoods as citing; it is used because it is effective. It law professors in various law schools, I academic lawyers standing before a cap­ focuses upon understanding rather than often asked my colleagues who they tive and eager audience on a daily basis. memory-on the proven basis that viewed as their premier law professor in What could be more intellectually memorized concepts are inevitably for­ their student days and why. The best an­ exciting than to challenge and be chal­ gotten, but once concepts are under­ swer came from a colleague who identi­ l lenged by some of the brightest and stood, they are never forgotten. More- fied a teacher of the civil procedure course

Spring 1996 5 ~-:- -- -~- - - - - .. Cov(dr S l01JI - -

in his law school. His admiration for this It is our challenge to ascertain that such If all of these competencies are to professor had nothing to do with the sub­ reliance by our clients is justified. be assimilated in the same three-year ject matter. Rather, he explained, this pro­ What kind of formal education in the span that was allocated to legal educa­ fessor was the exemplar of "the legal law is necessary to assure such compe­ tion when many of these courses were, mind at work." tency? It cannot be gainsaid that we at best, in the mind's eye, how is this to The objective of the first year of must be grounded in the basic principles be accomplished? More than three de­ law school beyond acquaintance with and rules of law, but the problem has cades ago, the great torts scholar, Will­ the foundational subjects was and is to been exacerbated over the last three de­ iam Prosser, complained even then that begin the process of learning to "think cades. Now the law student and lawyer "we are trying to stuff more and more like a lawyer." As we know, this meta­ must not only be aware of the traditional into the same size (three-year) bag." One morphosis in our mental apparatus not courses in contracts, property, torts, can only imagine what Prosser would only changes the way we think about criminal law and procedure, civil pro­ say today. the law, it changes the way we think cedure, constitutional law, corporations, What has become the traditional about everything. For most, it is a commercial law, evidence, conflicts answer to this concern is the fact that profound change. It is the basis and other staples, but we no law student can take all that is of­ for that "resourcefulness must also understand fered in three years-and this was true, about which Burke spoke administrative law, to a much lesser extent, three decades 200 years ago. It is why environmental law, ago or more. The new lawyer, however, so many millions come securities regula­ can achieve competence in an area to to lawyers to seek their tions, and a pano­ which he has not been exposed in law advice about their ply of other tax school because he has the analytical futures. Those who and regulatory tools to become competent in any facet seek us out impliedly laws includ­ of the law. He has developed the believe we possess ing those dealing lawyerlike mind. a unique form of with health law, Another answer is that continuing mature judgment ERISA, Superfunds legal education has now become man­ which we may and the like. Interna­ datory. Even the most modern version even call wisdom. tional law, particularly of a law school course requires supple­ developments in interna- mentary education in this rapidly tional trade law and interna­ changing society. Yet, CLE is anything tional contracts, are no longer but comprehensive. The effective law­ simply nice electives in the law yer will maintain and enhance her com­ school curriculum. petence in appropriate areas regardless of a requirement to maintain a license to practice. But how does she manage to deal with the volume and expanse of developments in her profession? How many lawyers have com­ plained over many years of their inabil­ ity to keep up with the "advanced sheets" -those pulp records of the lat­ est state and federal opinions, or the surfeiting amount of other materials? On a broader scale, consider the lawyer at work in a law library preparing a brief, or a law professor preparing for class or pursuing research for a book or article.

Murray onfuture attorneys: "Those who genuinnely love the practice and pursue it with complete diligence for their clients and society will suceed admirably."

6 Spring 19% --

l r_ ~{jg~tJi{tz~c_ejltl0~.1~ - ;j

The scene used to be a table filled deed, he need not leave the comfort of pages becomes an electronic book or with volumes of the West Reporter, home on a snowy evening to traipse to source of many thousands of pages. The some opened, others stacked with book­ the library to continue his research. He student inserts class notes instanta­ marks. Among the scatter, one might also simply retreats to his computer where neously in this electronic book and they find statutes, law reviews, a CCH or he can pursue this quest at any time of are automatically justified, suggesting Prentice-Hall binder, an occasional ALR the day or night with no interruptions that the notes are part of the book. Elec­ volume, a text or a treatise. In the center other than those he chooses to recog­ tronic "white" boards in classrooms con­ of this collage, we find the lawyer, in deep nize. The needed book or volume is al­ taining professorial notes or diagrams concentration, fussing over a footnote or ways available in the electronic stacks. will be automatically inserted into the quote that may be included in the finished The enhancement of efficiency is of geo­ student's electronic book. This very work product. The inevitable yellow pad metric proportions. Now there is time scene is occurring right now, in experi­ was at hand and the creator would use a to assimilate the multiple expansions mental fashion. pencil or pen to write the first draft. and totally new additions to any cho­ Like other disciplines, legal edu­ This scene was filled with prob­ sen field. cation will also see the great use of dis­ lems for other actual or potential users Like the practicing lawyer, the law tance learning with professors from of the library. All of these materials are student enjoys similar advantages. Re­ other schools discussing certain mate­ dedicated to the work of one person­ call the casebook with a principal case rials with students in classrooms hun­ the first user to take the materials from followed by notes with citations to other dreds or thousands of miles away. Law the stacks. Unless there were duplicate cases. Were the cited cases always read, students will, in much greater numbers, volumes (typically only reporters, and or was it prohibitively difficult to get to have their questions answered by E­ even with reporters only one or a maxi­ the library to look at those cases for the Mail, perhaps late at night. Professors mum of two duplicates), the entire law next class? Now, those cases can appear will spend time, often in their homes, school student body, faculty and practi­ on a screen within seconds. Beyond the with such questions. Seminars and in­ tioners in the city who used that law li­ citable electronic services, there is a dependent studies will be carried on, to brary were deprived of these critical massive amount of legal and related a greater or lesser extent, through the materials. How many times were users material already available on the "net" computer. CO-Rom applications already frustrated because the essential volume through myriad "web" sites. One con­ allow students to review large amounts they required was not on the shelves? cern is the addiction to the computer of material for law school or bar exami­ Absent the availability of a given vol­ which has already caused certain rela­ nations in increasingly effective ways. ume, work stopped until it was returned tionships to suffer. Another is the ease Multi-media applications will enhance to the shelves.1 of research and composition of a brief learning in the law as it does in other For many, but certainly not all, the or any other document where para­ disciplines. At this time, the most im­ new scenario is more than materially graphs can be moved instantaneously portant step in that direction is total different. There are no volumes, nor and footnotes can be inserted or deleted computer and multi-media literacy of pads nor pencils or pens. There is a with automatic justification causing law faculty as well as students.2 monitor, computer, keyboard and documents to be interminably long and Continuing education for practi­ printer. The cases, statutes, most of the creating diabolically difficult choices in tioners will also benefit heavily from this Ia w reviews and other services are at the shortening the final version to the technology. It will be possible to fulfill fingertips of the user via one or more length required by a court or other re­ mandatory CLE requirements through databases or a CD. She can now find cipient. the computer since the instructor will things that were virtually unfindable The law school classroom is not know whether the practitioner-student under the antiquated system. She can much different from past classrooms, is paying attention and otherwise par­ print anything on a disk or paper that but it is beginning to manifest radical ticipating in such a CLE computer magically appears in professionally fin­ changes. It is not uncommon to be in a course from a distance. These applica­ ished form from a self-fed printer. Quite class where the background includes tions augur a much more interesting, literally, the lawyer has a vast library at the muffled clicks of a laptop computer. effective and efficient method of CLE her fingertips and it extends beyond This is the tip of an electronic iceberg. over the methods currently used which anything that she used to find in a law In the foreseeable future, many law are often not even interactive, but in the library, alone. The use of this technol­ school classrooms will be filled with lecture mode, causing newspapers or ogy has now invaded courtrooms across these muffled sounds as students use magazines to be conspicuously present America. electronic casebooks and other elec­ in certain CLE classes. The lawyer need not pursue this tronic materials-where a case, statu­ Beyond the use of this technology electronic process in the law library. He tory, law review or other reference on a for far more efficient and more effective can remain in his office or home with screen can, by one muffled click, be ex­ learning, the technology, itself, must be the same access to the complete data ploded into the full text of that refer­ understood to practice law effectively. bases accessed through the library. In- ence. A traditional book of a thousand Statutory and other changes have al-

Spring 1996 7 .- CoverSto1y . _: ready occurred because of this technol­ It has never been uncommon to you?" Moreover, I am pleased to report ogy and we have just begun to recog­ discover leaders in business, govern­ that his question was stated with some nize these changes. ment, education or any other field who admiration for the skills of our profes­ In recent years, we struggled with list law degrees on their resumes. A let­ sion. Notwithstanding the criticisms, questions concerning software, e. g., ter from a former student revealed his these skills continue to be admired and, whether it is "goods" to which the UCC current occupation-an opthamologist: for the most part, trusted. applies or whether we must now have He felt compelled to tell me that, though Though the lawyer can be effective a completely revised UCC to deal with he thoroughly enjoys "making people in so many different fields, the central what it really is, licensing, and the need see again," he continues to regard his mission remains the practice of law. Re­ to know about intellectual property. We legal education as the most significant gardless of supply and demand, those live in a society where the percentage educational experience of his entire life. who genuinely love the practice and of service production continues to gain Regardless of the field, lawyers abound pursue it with complete diligence for on the percentage of manufactured and they are often leaders. their clients and society will succeed goods. Technology is an integral part of admirably. They will work very hard such services raising a host of unan­ and love every minute of it as they sniff swered legal questions about intellec­ tyranny in every breeze while they care tual property as well as fundamental is­ for others and carry their burdens. There sues such as whether an electronic ((There is no more is no more noble path than to practice record is the equivalent of a required noble path than to law in the grand tradition. writing to evidence a contract. Like other professionals and academics, practice law in the some have been loathe to surrender the Notes old ways for the new electronic ways. grand tradition." 1 Notwithstanding such frustrations, We may recall one of the many pieces there was a certain and even won­ of wisdom from Benjamin Nathan derful ambience of the stacks, in­ Cardozo, "If we cannot escape the Fu­ cluding the smells and surround­ ries, at least we should understand ing silence as one gazed upon an them." For many of us, the smell of the There was a time when many le­ empty yellow pad with the confi­ stacks will remain with us always, but gal educators expressed the view that dence that it would eventually be the new technology is infinitely better one should not be admitted to law filled with words that would con­ and really does allow us to cope with school without a desire to practice law vince any cou1t or other fomm of huge expansion of that which we must for a living. That view has been over­ the compelling nature of the argu­ understand. come for many reasons, but primarily ment to be created. The central question remains: If I because a legal education has proven to choose to pursue this difficult, fascinat­ be so desirable in myriad walks of life. 2 By "literacy," I do not mean "pro­ ing, frustrating yet wonderful educa­ Many who have left law school regard gramming" or any other highly tion, will I be able to support myself and even their partial law school experience complex effort. The use of comput­ my family in a world filled with so many as particularly significant in their suc­ ers and multi-media applications is who have chosen a similar path? This cessful careers. Modern legal education really not very difficult. The only brings us full circle to the essence of le­ reflects these trends in numerous joint successful route for most effective gal education. With the demise of lib­ degree programs. Dual or multi-disci­ use, however, is continued use un­ eral education in so many universities plinary preparation continues to expand til a level of comfort appears. At over the last four decades, many now in fields involving business, health law, that point, incidentally, the com­ view legal education as the last vestige dispute resolution, environmental sci­ puter becomes indispensable. In of liberal education. The study of law is ence, public policy and administration, some ways, learning to use a com­ the study of logic, epistemology, ethics, international affairs, computerization puter is something like exercising literature, language, rhetoric, writing, and so many others. on a variety of exercise machines, composition, sociology, economics, psy­ Legal education is, indeed, unique many of which remain unused in chology and a host of other disciplines. in its scope, its development of myriad the households of America. There An education that emphasizes critical skills in developing prudent judgment is an initial reluctance-in the case thinking skills, creativity, high levels of and decision-making. These attributes of computers, a phobia-which written and oral communication skills transcend disciplines and work environ­ must be overcome. Once computer and that inevitable resourcefulness of ments. After moderating a friendly phobia is overcome, the computer which Burke spoke enables the student panel discussion among clergy of differ­ is a lot easier than exercise ma­ to pursue innumerable opportunities in ent faiths, I recall the rabbi on the panel chines. widely diverse fields. saying to me, "You're a lawyer, aren't

8 Spring 19% - T -______,. - - Legal Ed.1icalf.on

~~Much more can be done to adequate~ prepare the law student.... A comprehensive educational system is necessary for the preparation of law students so that upon our admission to the Bar, we possess adequate knowledge as to both substance and procedure, and as a result, will hopefully render legal services in a more efficient and effective manner. , ,

Quality ltnprovetnent in Legal Education: A Student's Vie-w

By Steven M. Regan substance and procedure. A comprehen­ of the Court of Common Pleas of Allegh­ sive educational system is necessary for eny County, to possess excellent trial robate, Estate and Fiduciary Law the preparation of law students so that lawyering skills, because one of the typically governed by state pro­ upon our admission to the Bar, we pos­ greatest misconceptions about Orphans' bate codes, can be very complex sess adequate knowledge as to both sub­ Court is that it is noncontentious. In re­ and confusing. Moreover, familiarizing stance and procedure, and as a result, ality, probate and estate work often in­ oneself with the substantive law only will hopefully render legal services in a volves family acrimony that devolves partially prepares the law student for more effecient and effective manner. into outright battles pitting sibling ver­ eventual practice. With a morass of state Probate and Estate law is the fo­ sus sibling. and local procedural rules setting forth cus of this article because it is apparent To acquire insight as to the present how, when and in what form petitions that this will become a more prominent state of legal education and the quality and motions are to be presented to the area of the law in the near future. Are­ of the performance of probate and es­ Orphans' Court Divisions in Pennsylva­ cent article in American Demographics tate practitioners, the judges of the Or­ nia, a newly-admitted member of the reported that "today' s retirees will even­ phans' Court Division were kind Bar may be at a loss as to how to initiate tually pass on $10 trillion in inheritances enough to proffer their assessments of guardianship proceedings for an alleged to their [baby] boomer children," mak­ each and provide their views on how le­ incapacitated person or construct and ing "115 million bequests that average gal education can be improved. file an accounting of an estate's assets. $90,167 apiece." 1 The law schools cannot, simply In order for one to be prepared to The Role of The Law School due to time constraints, provide the stu­ practice in Probate and Estate law and It is quite simple to place the en­ dent with this procedural knowledge to assume the responsibility of dutifully tire burden of improving the quality of and experience. However, much more ensuring that estate assets are managed legal education on the law schools. That, can be done to adequately prepare the and transferred in accordance with a however, is a grave mistake. The entire law student in this vital and growing client's wishes, it is necessary, accord­ responsibility cannot logically or prac­ area of the law so that upon admission ing to Robert A. Kelly, Administrative tically be placed on law school admin­ to the Bar, one is better prepared in both Judge of the Orphans' Court Division istrators and faculty to provide an edu-

Spring 1996 9 cational system for each substantive dis­ dition of graduation. Judge Nathan will. The reason why these exercises cipline. That does not mean there is no Schwartz, who has been on the bench should be reintroduced is that they were room for improvement. for twenty-two years, stated that he was apparently incorporated into substan­ The majority of the judges of the prepared for practice in Orphans' Court tive law courses at Duquesne in the past. Orphans' Court are of the opinion that upon admission to the Bar because it For instance, Judge Kelly, a Duquesne the law schools do a more than adequate was mandatory for students to work in alumnus, stated that he was required to job of preparing students for practice in the office of a seasoned practitioner for draft a will in his Trusts and Estates probate and estate matters, although two months while in school and another course and, Judge Wekselman, also a there seems to be a lack of procedural four months after graduation. Why Duquesne alumnus, was required to do knowledge among many novice and these mandatory "preceptorships" were a title search on a piece of property and some experienced attorneys. discontinued is unclear. Judge Zavarella report on his findings in a course en­ Judge Kelly, a 12-year veteran of surmises that increased law school en­ titled Pennsylvania Real Property. To the bench and Administrative Judge of rollments had made it increasingly more use Judge Wekselman's words, "the the Orphans' Court, stated that law difficult to accommodate everyone in more clinical experience a student ob­ schools can do nothing more to prepare need of a preceptorship, and in order to tains the better so long as it does not in­ students as to probate and estate proce­ obtain one, the student had to know a terfere with the substantive part of the dure because "[T]he law school has the practitioner willing to act as one. course." I cannot see how these require­ student for only three or four years and ments could have possibly interfered needs every bit of that time to convey with the substantive part of the course the substantive law." Furthermore, and, thus, should be reinstated. Judge I. Martin Wekselman, a 23-year ((What the law While I realize this is not a novel veteran of the bench, stated that there is suggestion, its value should not be lost nothing that the law schools can do to school can do ... for want of a mechanism with which to prepare a student procedurally in pro­ evaluate the student's performance in bate and estate matters because that is is to reintroduce completing these practical exercises. "too particular" to be adequately cov­ Adapting the teaching assistant system ered in a substantive course and too spe­ certain practical used in the Legal Research and Writing cialized to warrant its own course. Judge writing exercises courses to the substantive courses Paul R. Zavarella, a 21-year veteran of would solve the problem. The teaching the bench and former Administrative to each of the assistant system would serve a dual ben­ Judge of the Orphans' Court and Presi­ eficial purpose of relieving the faculty dent Judge of the Court of Common substantive of the burden of wading through these Pleas, stated that law schools now pro­ JJ exercises while providing the students vide "a more advanced and sophisti­ c l asses .... chosen to be teaching assistants with cated" education with the advent and additional experience in certain practi­ prominence of computer legal research, cal and procedural areas, which would and most importantly, "the certification also look good on one's resume. of law students to practice law" within While these clerkships seemed to the parameters of a clinical program that have a positive effect on preparing pro­ The Role of the Bar allows the student to gain practical ex­ spective members of the Bar As stated above, there was a time perience that was not available in the procedurally, it seems unlikely that they when the members of the Bar took a past. will be revived. A principal reason why more active role in helping law students Although many of the judges these clerkships are unlikely to be rein­ get that all-important experience. But, stated they, like many of the novice at­ stated, is that with the strong demand for whatever reason, the clerkships died torneys that now come before the court, for seats in the law school's evening di­ off. Perhaps there is a causal connection were not prepared procedurally for vision, as a practical matter, it is virtu­ between the explosion in the size of the practice in Orphans' Court upon admis­ ally impossible for a great number of Bar and the concurrent loss of these and sion to the Bar, it is apparent that the law students to find time to complete other practical opportunities. loss of certain requirements has dimin­ this type of requirement due to their It seems safe to say that with more ished the quality and effectiveness of need to maintain full-time employment. attorneys competing for limited "busi­ legal education as to procedural knowl­ What the law school can do, how­ ness" opportunities, that it is not in the edge. ever, is reintroduce certain practical best interests of many skilled practitio­ First, all five Orphans' Court writing exercises to each of the substan­ ners to sacrifice time engaging in the judges had to fulfill the requirements of tive classes that would give the student tutelage of "law clerks" instead of tend­ a mandatory six month clerkship or experience drafting a complaint, a peti­ ing to the business of law and their prac­ ''preceptorship" in a law office as a con- tion and motion, interrogatories, and a tices. Judge Schwartz stated that prac-

10 Spring 1996 - Leoal Educct.t'ion 0 II

tieing lawyers do not take care of law he first began practicing, he would re­ tated persons who seek review hearings students by sharing their "so-called view files, especially the testimony, so to have the guardianship either limited knowledge" as they had done in the that he would know the right questions or removed. past. to ask and what must be filed and in 4. Represent the next-of-kin of an It was encouraging to see a con­ what form. alleged incapacitated person who certed effort to reinvolve members of the The valuable suggestions of Judge wishes to address the court to suggest Bar via The Alumni Assistance Program Kelly can be carried a step further. If one alternatives for the care of the incapaci­ (TAAP) last year, although it now seems reviews the law society choices at our tated person. that this tremendous idea died quickly. law school, they are very few and highly 5. Represent the low income next­ Though matching law students with specialized. Further, there are no clini­ of-kin who contest an estate accounting. alumni is a tremendous idea and will cal opportunities currently available 6. Devise and implement a Fidu­ provide the student with a valuable that would provide a student with ex­ ciary Training Program designed to in­ source of advice and information as to perience in probate and estate matters, form laypersons newly appointed as the practical aspects of practice in any unless the student procured his or her guardians of their duties and responsi­ substantive field of law, the use of own "externship" with a seasoned prac­ bilities to their ward and his or her prop­ alumni as educational resources could titioner. Thus, a Probate, Estate and Fi­ erty. and would be more effectively utilized duciary Law Society should be orga­ 7. Investigate instances of physi­ if practitioners were teamed with nized and chartered at the law school. cal and financial abuse of the elderly and groups of students comprising a law initiate the appropriate proceedings. society or clinical program. This would A legal clinic focused on this area conserve alumni resources so as to avoid of the law could and would provide the a shortage of those willing to participate student with invaluable client relations in the program. "... our primary and court experience while concurrently The educational benefits of recruit­ serving the needs of a significant seg­ ing experienced probate and estate prac­ responsibility is to ment of the Allegheny County popula­ titioners to act as consultants and advis­ take the initiative tion that is now underserviced. ers for a law association or clinical or­ A well organized and operated ganized for the purpose of furthering and create our own Probate, Estate and Fiduciary Law So­ both substantive and procedural knowl­ clinical opportunities ciety and clinical program, with the ben­ edge in that field would prove invalu- efit of both a faculty advisor and practi­ able, particularly for the evening stu­ and even develop tioner consultant, would provide the dent who does not have the time to take and implement our law student with a full view of this vi­ 1 ad vantage of a true clinical program. tal area of the law and would prove in­ own in-house valuable in preparing law students for The Student's Responsibility educational their future practices. Organizations Since we all will face the same tight such as these would be the ideal venue job market upon graduation, our pri­ programs. " for students to become familiar with the mary responsibility is to take the initia­ Probate, Estate and Fiduciary Code, tive and create our own clinical oppor­ which according to Judge J. Warren tunities and even develop and imple­ Watson, is a necessity, as many that ment our own in-house educational pro­ come before the court have an insuffi­ grams. Next, proceedings should be com­ cient grasp of its contents. Judge Kelly cites several means by menced to charter, organize and incor­ which a law student can become more porate a non-profit legal clinic that will knowledgeable in both substantive and provide a variety of legal services to the Steven M. Regan is a second-year evening procedural matters. He first suggests many low income and indigent indi­ student at the Duquesne University School that a student interested in practicing in viduals who fall through the cracks. of Law and serves as Senior Editor o!Juris. probate and estate matters attend Or­ Some of the services such a clinic could phans' Court hearings as all are held in provide are as follows: open court, with the exception of adop­ 1. Prepare and present petitions Reference tions. and orders of court for the appointment Also, all of the Orphans' Court of guardians of the person for minors. 1 Susan Mitchell, How Boomers Save, records, except adoptions, are public 2. Represent petitioners in inca­ American Demographics, Sept. 1994 records and available at the Register of pacitated proceedings where the person at 26. Will's Office in the City-County Build­ is indigent. ing. In fact, Judge Kelly stated that when 3. Represent indigent incapaci-

Spring 1996 11 The Crime Doctor Dr. Cyril Wecht Goes Over a Crime Victim With Tenacity- When He's Not Helping Investigators By Elisa Tighe (with contributions from Steven M. Regan) Solve Crimes) the Nationally he collective faculty of the Duquesne University Renowned Forensic Pathologist School of Law consists of preeminent scholars and ed u­ cators nationally and internationally known for their Teaches Law at Duquesne University contributions to the law and legal education, a fact that seems to belie its classification as a regional law school. Dr. Cyril Wecht, a Duquesne professor since 1962, is one such individual. Dr. Wecht earned his medical degree from the University of Pittsburgh Medical School in 1956 and while interning at St. Francis General Hospital, he took the Law School Admissions Test. He recalls "scoring in the 99th percentile on the exam despite having been on call the night before." Although Dr. Wecht was accepted at Harvard and Yale law schools, he de­ cided to attend the University of Pittsburgh Law School so that he could complete his medical residency requirements at the Veterans' Administration Hospital. In addition to attending law school and the demands of his residency, Dr. Wecht also moon­ lighted at three or four different hospitals and despite this hec­ tic schedule, he stated that he "still managed to do things [such as] have dates at the hospital where we would sit and have coffee and talk." After two years of law school and his residency, Dr. Wecht was summoned for military service as an Air Force Patholo­ gist. He served atthe Air Force Center for Pathology at Max­ well Air Force Base in Montgomery, Alabama. Because the Air Force Center of Pathology was so large and offered Dr. Wecht the ability to tend to a large and diverse workload, he "received credit for two years of my [medical] residency without having to pay the military back." After his commitment to the Air Force ended, Dr. Wecht was able to finish his law degree in the evening at the University of Maryland Law School in Baltimore while employed during the day as Associate Pathologist and Research Fellow in the Office of the Chief Medical Examiner for the state of Maryland. Dr. Wecht has served as the Chief Pathologist and Chairman of the Department of Pathology for Pittsburgh's St. Francis Medical Center since 1973. Now, one could say that his career in public ser­ vice has come full circle as he was once again elected as Coroner of Allegheny County last No­ vember after having previously served in that ca­ pacity from 1970 to 1980. Why would a world renowned forensic pa­ thologist return to public office after a 15-year hia­ tus? Dr. Wecht stated that while he "initially re­ jected the concept of running for the office again"

12 Spring 1996 because he "did not need it in my life this year, Dr. Wecht analyzes and criti­ Nemacolin Woodlands, was very infor­ financially or professionally," he was cizes the handling of many high profile mative and the judges were more than drawn back to the Coroner's Office for deaths and the examination of the satisfied with the results (s ee page 15). a number of factors. First, he was con­ corpses. He stated that it is no coinci­ As an educator, Dr. Wecht feels cerned that his opponent in the primary dence that most of these cases involved most comfortable. Despite taking on the election lacked the requisite expertise in appointed rather than elected medical additional responsibilities of Coroner of forensic pathology, a qualification he examiners. He stated, "The difference Allegheny County, he has continued to feels is very important. Secondly, he between the two systems is a matter of teach. He stated that he does not have stated, "many pathologists were very attitude and philosophy. It involves an to teach "for identification or enhance­ unhappy about how the office was de­ understanding and appreciation of what ment of my credentials," but continues teriorating and implored me to come the job entails and what the overall ob­ to do so because, "I like students and back." Finally, and most importantly, ligations are to society." According to Dr. talking to lawyers and doctors because Dr. Wecht returned to the office he held Wecht, this kind of awareness and ap­ I like to deal with the pragmatics of the for the entire decade of the 1970s be­ preciation of the sense of obligation to field ." cause, "It's what I do, what I know and community and society does not neces­ As to that field, law and medicine, what I teach, write and talk to groups sarily extend to or arise out of a system Dr. Wecht has seen substantial growth about. This is my field." where the medical examiner is ap­ and change. He surmises that the grow­ Although Dr. Wecht had earlier in pointed. ing importance of medicine and medi­ his career been adamant about main­ Upon his return to Pittsburgh in cal evidence in the law can be traced to taining the Allegheny County Coroner's 1962, Dr. Wecht began his practice as an the Supreme Court's several landmark Office as an elective office rather than attorney, forensic pathologist and decisions concerning constitutional changing to an appointed medical ex­ Duquesne law school professor. In the criminal procedure and the rights of de­ aminer, he is less vigilant than before. three decades he has been associated fendants handed down during the era "I used to be a total hardline for an with Duquesne, he has also held faculty of Chief Justice Earl Warren. Dr. Wecht elected medical examiner," he said, positions in the School of Pharmacy and stated that prior to those changes in the "but, I'm balanced today." While Dr. Graduate School of Health Sciences. law, "it was common for a defendant to Wecht still prefers the elective method Although Dr. Wecht has strong not be informed of his rights, to not have "to ensure the office would function on beliefs as to the future of legal educa­ access to an attorney, to be moved from a professional basis," he would not op­ tion and particularly legal medicine, he police station to police station so that it pose legislation, if introduced, that feels that as an adjunct professor, his would be difficult for the defendant's would change the Coroner's office to an involvement as to the law school should counsel and family to locate him, and it appointed position. not extend beyond fund-raising endeav­ was common for police to abuse a de­ Dr. Wecht prefers the elected form ors because, as he stated, "I don't think fendant to solicit a confession in a way of retention for the Coroner's office be­ it would be proper for me to engage in that no physical traces were left, such cause, "[The] office functions as a quasi­ the decision-making processes other as flushing his head in a commode." magisterial office. There are tremendous than to help with fund-raising. The full­ After those decisions were rendered, Dr. powers of inquiry in the coroner's of­ time faculty are the ones that should Wecht continued, "police and homicide fice which medical examiners do not make the decisions." detectives had to pay much closer atten­ have." Most importantly, Dr. Wecht be­ That is not to say that Dr. Wecht tion to physical evidence," which is lieves that electing a coroner is prefer­ has not been involved in more than where the medical and forensic pathol­ able to an appointed medical examiner fund-raising. Recently, he was instru­ ogy aspects of the law made their initial because, "medical examiners do not mental in organizing a two-day semi­ significant inroads. have the power to make in-depth inves­ nar for appellate court judges on issues In his Legal Medicine course tigations, and the few that do have it do involving forensic science, medicine and taught at Duquesne law school, Dr. not utilize it. I cannot even think of an their impact on the law. Duquesne was Wecht's students have many opportu­ example of an appointed medical exam­ chosen as the sponsor by Pennsylvania nities to learn what he terms "the prag­ iner office that has done the kind of full­ Supreme Court Justice John Flaherty. matics of the field." In addition to dis­ blown open inquiry that was done, for According to Dr. Wecht, "It was a big cussing many of the current issues and example, in the Jonny Gammage case. honor for the school. Dean Cafardi con­ problems in the medicolegal field, Dr. It is not because these offices don't care." tacted me and asked me if I had some Wecht presents actual cases which in­ It is because that they do not enjoy the ideas for the seminar in the field of fo­ voke those very issues and also offers independence from the executive and rensic science and medicine. So I lined the class the opportunity to visit the legislative branches in the counties in up all the faculty," which included the Coroner's Office where his staff recently which they serve. now famous Barry Scheck of the Ben­ instructed his class on the functions of In his first book, Cause of Death, jamin N. Cardozo School of Law. Dr. the office and educated them as to how and in his forthcoming book, due later Wecht stated that the program, held at the legal and medical fields merge, in

Spr[ng 1996 13 Scieru;e: a,nd tbe LauJ 1

their experience. Dr. Wecht also urges such a system is that the general practi­ realize that three years is not enough and encourages his students to observe tioners will retain many of the patients time to impart a quality education for coroner's inquests and autopsies. they had previously referred to special­ the paying student. Dr. Wecht stated, In terms of presenting actual cases, ists and economics will enter the deci­ "schools of pharmacy have recognized there is no one with greater knowledge sion as to what health care will be de­ that five years is necessary" to deliver a and experience to impart on students livered to the customer. quality education "and other disciplines than Dr. Wecht. His first book, Cause of The legal ramifications of such a have reached the same conclusion. Death, published three years ago, re­ system will likely be if economics takes Medical schools are getting close to re­ counted his experience and involvement precedence over what is medically nec­ alizing that more time is needed but still as medical examiner and forensic pa­ essary to treat the patient, then issues offer four year degrees. "For law school, thologist for some to the most well of medical malpractice will surface. it is becoming increasingly obvious that known high profile deaths in the history Also, financial arrangements between three years isn't enough. It is impossible of our country. Cases treated in the book health care organizations and their to educate a law student in the same included the deaths of John F. and Rob­ gatekeepers similar to the one discussed three years that was given fifty years ert Kennedy, Mary Jo Kopeckne, Elvis above, may result in the managed care ago. When you think about it, it doesn't Presley and Sunny Von Bulow, among organization being held vicariously li­ really make sense." many others. His second book, due out able for the injuries or death of a patient To augment the delivery of the late this summer or early fall, will be not afforded appropriate treatment. To substantive law, Dr. Wecht, although much like his first, only the subjects will Dr. Wecht, "the bottom line is that you commending law schools for clinical include his involvement with cases such do not consider money in those situa­ offerings, believes there should be more as the O.J. Simpson trial, the Branch tions. The patient's welfare is most im­ of them. He stated that a law school resi­ Davidian disaster at Waco, Texas, and portant." dency requirement "analogous to medi­ the still controversial suicide of Vincent Dr. Wecht sees other significant cal school residencies and structured Foster, former staff counsel for President areas where the areas of medicine, eco­ like medical residencies should be de­ Clinton. Dr. Wecht's students are truly nomics, ethics and the law will converge veloped so a student interested in crimi­ fortunate to have a professor with such and present the practitioners involved nal defense work works with criminal extensive experience. and the family of the patient with a most triallawyers." Dr. Wecht also stated that In addition to the growing impor­ difficult quandary. For instance, Dr. he would be receptive to establishing a tance of bio-ethical issues such as the Wecht foresees a dilemma where it will clinical program with the Coroner's Of­ right to die, the right to treatment, abor­ have to be decided "how much to spend fice but, "it would have to be done in tion, surrogate motherhood, and physi­ on an infant weighing less than two conjunction with the public defender's cian assisted suicide, Dr. Wecht sees one pounds and with several severe birth office or District Attorney's Office be­ very pressing issue hovering on the ho­ defects, or on a seventy-nine year old cause there is not enough legal in na­ rizon of legal medicine involving medi­ who has had four strokes and is pres­ ture" in the Coroner's office for it to sus­ cal economics, the law and ethics. That ently on life support." Not only will the tain its own legal clinic. issue is the ramifications of managed cost factor be of significant contention, At this point in his career, Dr. care and gatekeeper system of primary but also determining who will make the Wecht's plate is still very full. His many care physicians. Although Dr. Wecht decision to continue treatment will be a roles include elected Coroner of Allegh­ stated that "medical economics is an­ point of issue among all interested par­ eny County, Chief Pathologist and other field altogether not under the ru­ ties. Chairman of the Department of Pathol­ bric of legal medicine, such economic Such complex issues have no ogy for St. Francis Hospital, law profes­ decisions impact legal decisions." simple solution, but, according to Dr. sor, and author. Legal education re­ To elaborate, Dr. Wecht hypoth­ Wecht, law schools need to shed their former is just not in the cards for Dr. esized that legal issues will arise if and "stodginess and conservatism" so as to Wecht. He stated, "If I were thirty-five when a "managed care organization implement fundamental changes in years younger, I might try to get some­ hires a particular group of primary care their basic educational product. For in­ thing going, some kind of ad hoc com­ physicians to be their gatekeepers for $1 stance, Dr. Wecht believes that "curricu­ mittee regarding legal education reform million for one year, but if the group lum changes have not been as dynamic to feed into the American Bar Associa­ goes over the contract amount, the phy­ nor have they kept up with the societal tion." For now, The Duquesne Univer­ sicians practice will pay the difference demands to the extent that they should sity School of Law, including the student and the [managed care organization] have." Dr. Wecht foresees one funda­ body, will just have to be content with will replace them with other mental change that law schools will having Dr. Cyril Wecht as an adjunct gatekeepers, but if they cost the organi­ eventually have to recognize. As the professor. zation less than $1 million, then the practice of law becomes more complex gatekeepers get the balance as a profit." and fields become more diverse and Elisa Tighe is a second-year day student at Dr. Wecht surmised that the result of technical, law schools will soon have to the Duquesne University School of Law.

14 Spring 1996 ~-.~--- ' ,J u.dici~. re:o1~(erence . ,-~-- Under the Microscope Issues of Science and Law Examined at judicial Conference

By Kim Strohm Conference participants (left to right): Justice John P. Flaherty, Dean Nicholas P. Cafardi, Dr. Cyril Wecht, Professor Jagdeep Bhandari

he Conference entitled "Science & the Law" was organized and pre­ sented by the Supreme Court of Pennsylvania and Duquesne University School of Law's Institute of Judicial Edu­ cation. The Conference began with open­ ing remarks by Justice John P. Flaherty, Jr. who explained this was the first "his­ toric conference" for the collaboration, and it would be the beginning of what he hopes to be many more conferences. Af­ ter remarks by Dean Nicholas Cafardi of Duquesne Law School, the floor was turned over to Dr. Cyril Wecht, who served as moderator for the two-day event. As explained by Dr. Wecht, the par­ ticular topics for the conference were cho­ Professor George Annas, Boston Univer­ discussion the great attention to detail sen with an emphasis placed on appel­ sity Schools of Medicine and Public and precision necessary during the vari­ late judicial education. Health, addressed '"Right to Die' ous stages of (1) collecting the samples, The areas of law chosen were based Medicolegal Issues;" and the conference (2) conducting the laboratory tests and (3) upon their significance, prominence and concluded with a discussion on 'Toxic calculating the statistical analysis of the controversy in the legal arena currently Torts" by Professor Jack Snyder from Tho­ actual test results. Any error(s) made dur­ and with anticipation for the future. mas Jefferson University. ing these stages will make the results of The speakers which made presen­ Knowing Barry Scheck was attend­ the test unreliable. tations are all prominently known in their ing, I have to admit I was very excited As an example, Professor Scheck ex­ areas of expertise and in the case of Pro­ about his presentation. It was the closest plained that blood stains are the most dif­ fessor Barry Scheck, from the Benjamin I had ever come to meeting someone who ficult to test for DNA because DNA M. Cardozo School of Law, to the general was involved in the O.J. Simpson trial. comes from white blood cells, and if the public as well. Professor Scheck did make light of blood of more than one individual is Professor Scheck spoke about the "trial of the century" by sharing with present, it is very difficult to sort out the "DNA and its Application in Civil and us some humorous news reports and mixture. During the statistical analysis the Criminal Cases;" Wecht, Chairman, De­ publications about the trial, but he quickly calculations involved magnify any errors partment of Pathology and Chief Patholo­ focused on his primary objective: to give from the difficulty in sorting which makes gist, St. Francis Central Hospital, dis­ his audience a better understanding of the the DNA results and interpretation very cussed "Legal Medicine and Forensic Sci­ procedures and tests conducted in rela­ unreliable. ence;" Professor James Starrs, The George tion to DNA evidence. He had quite a The opportunity for such error Washington University School of Law, weighty task considering DNA was makes it difficult in the court system to reviewed "Recent Developments in Fed­ something I left back in my high school rely upon the DNA evidence being pre­ eral and State Rules Pertaining to Medi­ science books. sented in a particular case. Professor cal and Scientific Testimony;" Professor Professor Scheck explained the use Scheck recommends a regulatory system Lewis Kuller, University of Pittsburgh of Differential Extraction testing, the for the laboratories with a review board School of Public Health, informed his au­ RFLP test, PCR testing and the DQ Al­ so that minimum and consistent stan­ dience on "Epidemiology Studies-Rel­ pha Reverse Dot Blot Technique. Profes­ dards are met to combat the chance for evance and Significance in Litigation;" sor Scheck emphasized throughout his error. Professor Scheck pointed out that

Spring 1996 I 5 -.-.- -- -~~·1 S cie1.1,ce ·,and tbe tau~ I having such a system would reduce the costs involved in DNA cases because ad­ missibility hearings would not last for two months at a time. According to Pro­ fessor Scheck, such a hearing was even too expensive for 0.]. Simpson. For those interested in learning more about this area of law, Professor Scheck recommends reading "DNA Tech­ nology in Forensic Science" by the Na­ tional Research Council which discusses the future of and challenges for this new technology. Expanding upon the need for regu­ lating laboratories, Professor Starrs from George Washington University com­ mented in his presentation that when deciding to admit evidence during a trial, it is not enough for the judge to merely look at the theoretical status of the meth­ odology. Rather, the judge must decide to accept the fact that the person who con­ ducted the procedures involved in test­ ing did so properly by performing all the steps in the proper sequence and time "1be opportunity for. ..ennr makes it difficult in the court system limitations. to re~y upon the DNA evidence being presented in a particular case. For instance, if the laboratory tech­ Professor Scheck recommends a regulato·ry system for the laboratories nician or retriever merely sneezes, that with a review hoard so that minimum and consistent standards are can contaminate the sample, and the met to combat the chance for error. Professor Scheck pointed out that DNA of the technician will be amplified having such a system would reduce the costs involved in DNA cases in the test results. Following the proper because admissibili~v hearings would not last for two months at a protocol is the key of determination once time. According to Professor Scheck, such a hearing was even too the established methodology is accepted. expensive for OJ. Simpson. " Professor Starrs also clarified a com­ monly misplaced reliance on the often used statement that a gun was "recently fired ." He informed us there is no scien­ does not apply because no scientific is­ the individual has received. tific evidence to prove this. What this sue is at question. Besides the scheduled topics and statement means is only that the gun had Though serving as the moderator, discussions, those in attendance made use been fired since its last thorough clean­ Dr. Wecht presented an outline of the de­ of their "free time" to discuss other issues ing, which may not have necessarily been velopment of forensic science from important to them as jurists. recent. So this is an inconclusive state­ Babylorua in the 21st-20th Centuries, B.C. By sitting back and listening to the ment. to its current state today. presentations and the jurists in atten­ Overall Professor Starrs expressed Of most importance, Dr. Wecht pro­ dance, I gained a uruque perspective of his view that we should restrain the use vided an understanding of the different the legal arena I would not have had oth­ of scientific evidence by making certain types of certification in forensic science erwise. all necessary steps which were conducted which individuals who testify as expert during the testing are admitted as evi­ witnesses may receive. These certifica­ dence to show whether proper techniques tions included Odontology, Toxicology, Kim Strohm is a third-year day shtdent at the were followed. This is the holding of Frye · Forensic Psychiatry, Forensic Anthropol­ Duquesne University School of Law. v. United States.1 ogy, Forensic Document Examiners, Pa­ The problem arises, however, in the thology and Criminalist. Depending interpretation of what is "scientific" evi­ upon the type of certification, the indi­ dence. For instance, Professor Starrs says vidual may or may not be an expert in a Reference that some evidence is considered to be just particular field . It is important to be 1 293 F. 1012 (D.C. Cir., 1923). like a photograph, and thus the Frye test aware of the level and type of education

16 Spring 1996 ,.----:-- - .,.... - _-..------~ · For::ensic ·Euide1zce , \ . .-. . - -

Snufflng Out Reasonable Doubt Forensic Evidence Often Snuffs Doubt from the juryJs Mind; Tbe Tricky Part for Prosecutors is Getting It Admitted at Trial.

By Michele A. Forte

n the past one hundred years our Any of these techniques can produce Presumably "the trial process society has developed a strong re­ scientific evidence that can be used by seeks out expert testimony because the liance on science and teclmology. law enforcement to investigate crimes, expert ... possesses knowledge that the The criminal justice system, as a func­ and later introduced as circumstantial judge and jury lack."5 The use of scien­ tion of society, has also developed such evidence at trial by either the prosecu­ tific experts at trial has been steadily in­ a reliance. When science and technology tor or defense attorney. creasing since World War II due to the are applied to evidentiary issues in the Some commentators attribute the advancements in the biological sciences law, it is known as forensic science. increase in the importance of forensic and other technologies. This, coupled Forensic science is a broad classi­ evidence to the United States Supreme with the increase of litigation in both fication that encompasses many spe­ Court's "Warren Years" where many civil and criminal law, has resulted in cialty areas. For example, forensic medi­ cases were decided fashioning the 4th, routine use of doctors and scientists to cine is the application of medical science 5th and 6th Amendment exclusionary evaluate facts and present expert opin­ to legal problems. Forensic odontology rules.1 Decisions such as Gideon v. Wain ­ ions at trial. is the application of dentistry to human wright/ Escobedo v. Illinois,3 and Miranda Expert testimony has been a identification. Forensic psychology is v. Arizona,4 along with others, forced po­ trouble spot for courts dating as far back used to establish criminal profiles and lice to develop new approaches to in­ as the 14th century.6 Juries have a ten­ to evaluate an individual's psychiatric vestigation and placed a much greater dency to concentrate heavily on expert condition in relation to his emphasis on the use of forensic evidence. testimony concerning scientific evi­ actions constituting criminal Prosecutors who formerly dence, while neglecting to focus on the behavior. The broad term relied primarily on physical actual issues being litigated. For this rea­ "criminalistics" is used evidence, confessions and son, the courts must take special care in when referring to trace lay testimony soon began protecting the defendant from expert evidence such as to use scientific testimony that may unduly influence fingerprints, fiber evidence and the jury. analysis, blood expert testimony While there may be problems with and body fluids, routinely at trial. expert testimony concerning forensic firearms and tool The use of evidence, there has been a recognized mark comparison expert testimony need for the assistance of experts at trial. and drug at trial aids the The United States Supreme Court in Ake identification. judge and jury v. Oklahoma 7 recognized the due process in their under- right to expert assistance for indigent standing of defendants. Justice Marshall delivered complex or the opinion of the court, which held that: specialized When a defendant demonstrates to the scientific trial judge that his sanity at the time of the principles. offense is to be a significant factor at trial, the state must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examina­ tion and assist in evaluation, preparation and presentation of the defense .8 A prosecutor or defense attorney will run into significant problems when they attempt to introduce expert testi-

Spring 1996 17 - ' Science .and tbe_~CI_,u! j mony based on a principle that has not admitting expert testimony deduced from laxing the traditional barriers to 'opinion' tes­ received widespread scientific accep­ well-recognized scientific principles, the de­ timony.22 tance. If the court has not yet taken judi­ duction made must be sufficiently established The court then went on to say that cial notice of a particular test or principle, to have gained general acceptance in the par­ the displacement of the Frye test by the the attorney seeking to introduce that ticular field in which it belongs. 15 Federal Rules does not mean there are "no evidence must provide the court with suf­ The "general acceptance" test of limits on the admissibility" of novel sci­ 9 ficient proof of the test's reliability. Frye finally separated the expertise from entific evidence.23 To the contrary, the What standard the court will use in the particular expert and required a court held that the rules, "especially Rule determining the admissibility of un­ showing that others in the expert's par­ 702, assign the trial judge the task of en­ proven or "novel" scientific evidence will ticular field had tested and accepted his suring that an expert's testimony both depend on the jurisdiction and its stan­ theories or ideas.16 rests on reliable foundation and is rel­ dard of admissibility. Frye, however, was barely noticed evant to the task at hand." 24 The first standard for admitting sci­ by any other court until the 1970s, when Reactions to Daubert have varied. entific evidence was probably the com­ scientific evidence became more impor­ One critic of Daubert contended that the mercial marketplace test.10 The court tant to criminal prosecutions in the wake court was extremely vague "on what de­ would determine if the subject matter at of the Supreme Court rulings on new gree of scientific reliability the trial court issue was beyond the "range of knowl­ evidentiary standards concerning the should require before admitting the evi­ edge of the average juror." 11 If it was, a admissibility of certain types of evidence dence under Federal Rule 702." 25 But a qualified expert would be permitted to obtained by the police. After that Frye supporter of Daubert found the decision testify. A person was considered a quali­ became the accepted standard in at least to be "a good first step in the right direc­ fied expert if he could "make a living sell­ forty-five states.17 tion" because it requires judges under ing his knowledge in the marketplace."12 In 1975 the Federal Rules of Evi­ 104(a) of the Federal Rules to examine the The reason being that those who pros­ dence became effective and caused much proffered science and be decided "by a pered in their particular business presum­ confusion concerning the appropriate preponderance of the evidence, that the ably possessed expert knowledge of their standard of admissibility for novel scien­ scientific evidence is valid." 26 profession. tific evidence. The Federal Rules allow As for the state courts, those that By the twentieth century, attitudes testimony by experts when such "scien­ have adopted the Federal Rules of Evi­ toward science and experts had changed. tific, technical or other specialized knowl­ dence, must adhere with Daubert because The flaws in the commercial marketplace edge will assist the trier of fact to under­ "the Supreme Court is the ultimate au­ theory became apparent. The first flaw stand the evidence or to determine a fact thority on its rules of evidence.''27 was that some fields of expertise had in issue ...." 18 In order for the testimony The Delaware Supreme Court held value only in the courtroom and lacked to be presented it must also be relevant in Nelson v. State 28 that the standard of any utility in the commercial market­ and reliable. admissibility of scientific evidence was place. The second flaw was that no one Rule 402 of the Federal Rules of subject to the requirements in Daubert, ever questioned whether a particular Evidence impliedly abolishes Frye for use because the Delaware Rules of evidence body of knowledge could be validated or in federal courts by stating, were modeled after the Federal Rules.29 tested separate from the expert who pos­ All relevant evidence is admissible, ex­ Other states, such as Pennsylvania, which sessed it. 13 cept as otherwise provided by the Constitu­ have not adopted the Federal Rules, con­ In 1923 the Court of Appeals of the tion of the United States, by act of Congress, tinue to use the Frye general acceptance test. District of Columbia dealt with these is­ by these rules, or bt; other rules proscribed by In 1994 the Pennsylvania Supreme sues in Frye v. United States. 14 The court the Supreme Court pursuant to statutory au­ Court ruled on the admissibility of DNA had to rule on a single assignment of er­ thority.19 evidence in Commonwealth v. Crews.30 In ror: whether the trial court erred in refus­ The argument raged on, however, upholding the Frye test as the applicable ing to allow a defense expert to testify for almost twenty years until the Supreme standard in Pennsylvania, the court said, concerning a systolic blood pressure de­ Court addressed the issue in Daubert v. "[ w ]hen scientific advances produce new ception test taken by the defendant. The Merrell Dow Pharmaceuticals.20 In short, the types of evidence, admissibility of such court had to determine whether or not court held that the Frye test was super­ evidence depends on the test first laid this test was admissible as evidence. seded by the adoption of the Federal down in Frye v. United States." 31 The court In finding that the test was inadmis­ Rules of Evidence/1 specifically by Rule then found that the trial court had prop­ sible the court stated, 702, governing testimony by experts. The erly admitted the DNA evidence because Just when a scientific principle or dis­ court stated, it had gained general acceptance in the covery crosses the line between the experimen­ The drafting history [of the Federal scientific comrnunity.32 Perhaps the true tal and demonstrable stages is difficult to de­ Rules] makes no mention of Frye, and a rigid test of Daubert will be whether state courts fine. Somewhere in this twilight wne the evi­ "general acceptance" requirement would be that have not adopted the Federal Rules dential force of the principle must be recog­ at odds with the "liberal thrust" of the Fed­ of Evidence will abandon the Frye test for nized, and while courts will go a long way in eral Rules and their "general approach of re- the Daubert Rule 702 test.

18 Spring 1996 .,...----..- ~~- . ------. - -- Forensic 1~vidence

Ref erences 8 470 U.S. at 83. 2 1 113 S.Ct. at 2793. 1 Edward.). Imwinkelried, Evaluating the 9 Andre A. Moenssens et a l. , Scientific Evi­ 22 Id. at 2794 (citatio n omitted). Weight of Scientific Evidence, 23 Wm. dence in Criminal Cases, 8 (2cl ed. 1976). 25 lei. at 2794-95. & Ma1y L. Rev. 261, 261-262 0981); See 10 David L. Faigman et al. , Check Your 24 Id . at 2799. 2 also , Paul Giannelli , Evidence in Crimi­ Crysta l Ball at the Courtho use Door, ; Paul S. Milich, Controversial Science nal Prosecutions, 137 MiL L. Rev. 167, Please: Exploring the Past, nderstand­ in the Courtroom: Daubert and the 170-171 (1992). ing the Present, And Wo rrying About the L:l\v's Hubris, 43 Emo ry L.J. 913, 920 1 372 U.S. 335 0963). Future of Scientific Evidence, 15 Cardozo 0994 ). Mi lich cites Stale v. Bible, 858 3 378 u.s. 478 ( 1964). L. Rev. 1799, 1804 0 994). P.2d 1152, 11 83 (Ariz. 1993), which re­ 11 ·I 384 .S. 436 0966). Id. at 1803. fused to adopt Daubert because of its > David L. Faigman et al. , Check Yo ur 12 lei. at 1804. uncertainty in application. 1 26 Crystal Ba ll at the Courtho use Door, -' Faigman et al. , supra note 5, at 1805. Faigman et al. , supra note 5, at 1817. Please: Exploring the Past, nderstand­ 14 54 App.D.C. 46, 293 F. 1013 0923) 27 J Ken Thompson, Note, A Review of ing the Present, And Wony ing About the 15 Id. at 47. the Admissibility of Nove l Scientific Evi­ 6 Futu re o f Scie ntific Evide nce, 15 ' Fa igman et al. , supra note 5, at 1807. dence, 17 Am. ]. Trial Advoc. 741, 752 Cardozo L. Rev. 1799, 1801 0994). 17 Imwinke lried, supra note 1, at 264 (ci­ 0 994). 6 Be rt Black, A Unified Theo1y of Scien­ tation omitted). 2X 628 A.2d 69 (De l. 1993). tific Evidence, 56 Fordham L. Rev. -95, IH Fed. R. Evid. 702. 2'} 628 A.2d at 74 n.7. 597 n.1 (1988). l9 Fed. R. Evict. 402. 30 536 Pa. 508, 640 A. 2cl 395 (1994). 20 470 U.S. 68, 0985), remand affirmed, __ U.S. __, 113 S.Ct. 2786, 125 .J J 640 A.2cl at 399 (citations omitted). 2 778 P.2d 460 (1989). L.Ed.2d 469 0993). -' ld. at 400-01.

Michele A. Forte is a third-year dmj shtdent at the Duquesne UniversihJ School of l.tlw and seroes as a staff photographer for Jwis.

Spring 1996 19 - -- - - Science and tbe Lcuo Are We Patently Hu111an? Carl Ronald Says Constitutional Drafters Knew the Importance of Protecting Ideas s long ago as the drafting of the useful process, machine, manufacture, cifically to include certain plants within U.S. Constitution, American leg­ or composition of matter, or any new patentable purview. 11 If Congress had islators have recognized the need and useful improvement thereof.... " 5 meant for patentable subject matter to to develop and protect the ideas of in­ The three additional requirements of include living organisms, the argument ventors. Article I declares that Congress novelty, utility and nonobviousness went, those plant enactments would has the power "[t]o promote the must also be met before a patent wiii be have been unnecessary. 12 Progress of Science and useful Arts, by issued; however, when the invention The Court, through Chief Justice securing for limited Times to .. .Inventors sought to be patented has a life of its Burger, found this argument the exclusive Right to their respective ... own, the biggest roadblock to patent­ unpersuasive. After detailing the legis­ Discoveries."1 Pursuant to this grant of ability is whether it meets the statutory lative history of the 1930 Plant Patent power, Thomas Jefferson penned the subject matter criterion.6 Act, Justice Burger summarized, " the first patent legislation in 1793. The birth of intellectual property relevant distinction [is] not between liv­ When Congress recodified the in animal life occurred in 1980 with the ing and inanimate things, but between various patent statutes in 1952, the draft­ Supreme Court's landmark decision in products of nature, whether living or ers were careful to retain the expansive Diamond v. Chakrabarty. 7 The patent ap­ not, and human-made inventions." 13 language of Jefferson's original enact­ plicant in that case had combined the The Commissioner's second ma­ ment.2 In fact, the Committee reports ac­ genetic components of four different jor argument was that a live microorgan­ companying the recodification indicated naturally occurring bacterium to pro­ ism could not qualify as paten table sub­ congressional intent to make patentable duce a single microorganism which ject matter because the patenting of liv­ "anything under the sun that is made could break down crude oiJ.B The patent ing things was unforeseen by Congress. by man."3 Modern-day biotechnology examiner rejected the patent claim to the Therefore, it was argued, the Court challenges legislators and jurists to genetically engineered bacteria on the should wait until Congress has had a stand by that oft-cited maxim. Indeed, grounds that microorganisms were chance to address the issue before grant­ genetic manipulation raises questions "products of nature" and that as living ing such a patent. 14 The Commissioner previously posed only in the fantastic things, they did not fall within statuto­ urged that Congress was best able to musings of science fiction writers and rily allowed subject matter.9 The case evaluate the competing interests in­ the intellectual hypotheticals of philoso­ was eventually granted certiorari and volved and should rightfully be the phers. presented to the Supreme Court. branch to decide whether living things The founders recognized that a The Commissioner of Patents and should be patentable. 15 system whereby inventions and ideas Trademarks, argued that living things Invoking the well-known mantra were recognized and afforded property were not patentable because they were of Marbury v. Madison, the court intoned rights would serve as an economic in­ neither a "manufacture" nor a "compo­ that "once Congress has spoken, it is 'the centive to expand the boundaries of sition of matter" under the statutory re­ province and duty of the judicial depart­ technology.4 Correspondingly, the sub­ quirement for patentable subject mat­ ment to say what the law is."'~ 6 Seeing ject matter for which a patent may be ter.10 In support of this conclusion, the no ambiguity in the language of the stat­ granted is very broad. Specifically, a Commissioner pointed to the fact that ute, the Court held "[b]road general lan­ patent may be granted for "any new and Congress had enacted legislation spe- guage is not necessarily ambiguous

20 Spring 1996 ~ . - ~ :-- ~ ..=:;---..--~

Patented-··' . Genetics· ~ when congressional objectives require In the wake of this official acqui­ Given the concurrent advance­ broad terms." 17 Addressing the escence to the patentability of geneti­ ment of the patentability of genetically Commissioner's concerns that new in­ cally altered animals, Harvard Univer­ altered animal life forms and the avail­ ventions and principles not contem­ sity became the first patent holder of an ability of patents for isolated and puri­ plated by Congress should not be af­ animal patent in 1988. The 'Harvard fied sections of human DNA, what lies forded patent protection, Justice Burger Mouse' as it is called, was genetically in the way of patent rights in people chastised, "[a] rule that unanticipated engineered to develop cancer so re­ themselves? An additional portion of inventions are without protection searchers could study breast cancer with the aforementioned 1987 PTO notice would conflict with the core concept of the aim of developing a cure for hu­ stipulates the patent law that anticipation under­ mans.24 [t]he grant of a limited, but exclusive mines patentability."18 Throughout this evolutionary pe­ property right in a human being is prohib­ In response to the charge that al­ riod for the patentability of genetically ited blj the Constitution . .. .3 1 lowing patents on genetically altered engineered higher organisms, the ques­ Although the Patent and Trade­ living organisms would endanger hu­ tion of patentability of altered human mark Office lacks the authority to rule man life as is currently known, the court life forms remained unanswered. The on Constitutional issues, the PTO's noted that granting a patent or denying aforementioned statement issued by the statement probably refers to the 13th one would have very little effect on re­ Patent and Trademark Office preempted Amendment.32 The 13th Amendment search already under way. The Court ac­ this question by further announcing, reads, in pertinent part, knowledged that technology will march [a] claim directed to or including Neither slavery nor involuntary ser- on, virtually oblivious to risk in some within its scope a human being will not be vitude . . . shall exist within the United cases, and further, the patent system is considered patentable subject matter under States . .. [and further] Congress sha/1/wve a dike not high enough to check the ris­ 35 u.s.c. § 101 . .. .2 5 power to enforce this article by appropriate ing tide that is the quest for knowledge.19 Perhaps paradoxically, patents on legislation Y Thus disposing of the Com­ portions of the human genome itself While this amendment gives Con­ missioner's subject matter challenges, have been issued.26 Scientists have been gress wide latitude in passing legisla­ the Court proceeded to the customary able to identify sections of DNA which tion to enforce the amendment, that requirements for patentability. Since contain the recipe for certain bodily power has been extended in modern Chakrabarty's bacterium was signifi­ chemicals and the Patent and Trade­ day jurisprudence to encompass state cantly different than any found in na­ mark Office has declared that as long as and private actions that amount to ture and had "the potential for signifi­ the DNA sequence is isolated and puri­ "badges of slavery." :><' At least one com­ cant utility," the Court found the discov­ fied, it is sufficiently removed from na­ mentator has pointed out that, to the ex­ ery patentable.20 While Chakrabarty ture that it is patentable.27 tent the knowledge that a person pos­ merely held a genetically altered bacte­ This "products of nature" doctrine sesses a patented genetic make-up takes rium was patentable, the sweeping lan­ was first applied in Funk Brothers .28 The away from his notion of himself as an guage of the opinion opened the door general idea is that when a patent ap­ individual, his personal freedom may be for inventors of other genetically altered plicant attempts to obtain a patent on a offended. This, in turn, may be seen as organisms to submit patent applica­ combination of bacterium, for example, a restriction upon his 13th Amendment tions. a patent will not issue if the individual constitutional rights because it is a In 1987, the decision in Ex parte bacterium are unchanged from their 'badge of slavery.'35 Allen expanded the significance of the natural state.29 If the combination of Another potential constitutional earlier decision in Chakrabarty. 21 Allen naturally occurring items fails to rise to problem that could arise if patents were questioned the patentability of geneti­ the level of patentability, it would seem granted on genetically altered human cally manipulated oysters. While the that a purified and isolated version of a beings arises from the rights a patent Court dismissed the claims on other portion of a person's DNA severely inherently affords. Patent holders have grounds, it held genetically manipu­ strains the "products of nature" doctrine the right to exclude others from manu­ lated oysters were patentable subject since isolation and purification are the facturing the patented object. They may, matter under the statute.22 This decision only alterations to the DNA. in fact, bring suit for damages if in­ prompted the Commissioner of the Perhaps in response to this criti­ fringement occurs.36 What happens if a Patent and Trademarks Office to issue a cism, there are now several cases in genetically manipulated person who notice concerning the availability of pat­ which the Court has expressed its will­ has a patent upon their gene sequence ents for animals. The notice proclaimed, ingness to issue a patent for a genetic decides to have children? Could it be inter alia, sequence that exists in nature where the seriously argued that patent rights have [t ]he Patent and Trademark Office now con­ sequence is isolated and purified. The precedence over reproductive rights? siders non-1wturally occurring non-human one further requirement is that there Patent rights are economic in na­ multicellular living organisms, including ani­ must be some advantage over the se­ ture. A person having a property inter­ mals, to be patentable subject matter.... 23 quence in its natural state.30 est in the manufacture of a particular

Spring 1996 21 : ... Scimzce and tbe i.a.tlJ

-. -- --- ~ _..,___~Ji

"Tbe issue of human patentabili(Y has yet to conze before the Supreme Court; howeve1; it is only a matter of time. ... "

sequence of DNA would not have the right to lock a person up in his basement just because that person happened to benefit from the genetic alteration. The intellectual property owner would merely have the right to preclude an­ other from "manufacturing" that alter­ ation. The patent holder's rights could be limited to a particular technique (de­ pending on the patent) or could be as broad as keeping others from produc­ References ing the patented alteration by a substan­ tially similar method. Natural reproduc­ 1 U.S. CONST. art. I,§ 8, cl. 8. 21, 1987). 1 tion, however, would definitely not clas­ Diamond 11. Chakrabarty, 447 U.S. 303, 21 Russel H. \'(talker, Patent Ul\v-Should sify as a 'substantially similar method.' 309 (1980). Genetically Engineered Human Beings Finally, it should be noted that patents .i Chakrabarty, 447 U.S. at 309. Be Patentable?, 22 Mem. St. U. L. Rev. 101, 1 do not confer an eternal property inter­ Dan L. Burk, Patenting Transgenic Hu­ 10_ (Fall, 1991). 2 est in the subject matter; they are only man Emb1yos: A Nonuse Cost Perspec­ ' 1077 Official Gazette Pat. Office 24 tive, 30 Hous. L. Rev. 1597, 1616 (Winte r, (A pr. 21, 1987). valid for a limited time- currently 21 1993). ' Rebecca S. Eisenberg, Patenting the Hu­ twenty years from the date of filing.37 '3- u.s.c. §101 0988). man Genome, 39 Emory L.J. 721 (Sum­ While patents have been issued for 6 Michael E. Selle rs, Patenting mer, 1990). increasingly complex animal life forms, Nonnaturall y Occurring, Man-Made Life: 27 lei ., at 727 (citing Amgen, Inc. v. Chugai the PTO has declared that patents on A Practical Look at the Economic, Envi­ Pbarrnaceutica/ Co., 13 U.S.P.Q.2cl1737, genetically altered human beings are ro nmental, and Ethical Challe nges Fac­ 1759 (D. Mass. 1989)). 2 unconstitutional. Seemingly in contra­ ing Animal Patents, 47 Ark. L. Rev. 269, $ Funk Brothers Seed Co. v. Kalo Inocu­ diction with this philosophy, the PTO 274 (l994). lant Co ., 33 U.S. 127 (194R). has recently granted patents on purified, 7 Diamond v. Cbakrabarty, 447 U.S. 303 29 Funk Brotbe1·s, 33 U.S. at __. but otherwise identical portions of the (19RO). 30 Rebecca S. Eisenberg, Patenting the Hu­ human genome. " Cbakrabarty, 447 U.S. at 305. man Genome, at 727. The issue of human patentability 9 ld.at 306 51 1077 Official Gaze tte Pat. Office 24 1 has yet to come before the Supreme " lei. at 311. (Apr. 21, 1987). Court; however, it is only a matter of 11 lei . at 311. (citing The Plant Patent Act 52 Rache l E. Fishman, Pate nting Human time before the justices and the nation of 1930, 3- U.S.C. §16]) Beings: Do Sub-Human Creatures De­ must face these questions. Throughout 12 lei. se•ve Constitutional Protection, 15 Am. the dialogue between scientists, philoso­ u Chakrabarty. 447 U.S. at 313. J.L. & Med. 461 0989). 14 3 phers, the media and the public in the Chakrabarty, 447 U.S. at 314. 3 U.S. CONST. , amend. Xll1 , § 1. 1 14 ; Chakmbarty. 447 U.S. at 315. · Kevin D. DeBre, Patents on People and coming years, it must be remembered 16 Chakrabarty, 447 U.S. at 315 (citing the U.S. Constitution: Creating Slaves o r that we cannot forget what we already ll'larbtuy v. Madison, 1 Cranch 137, 177 En ·laving Science, 16 Hastings Const. know-it is impossible to "undiscover" (1803)). L.Q. 221, 229(Winter, I989)(citingjones knowledge. The building blocks exist to 17 Cbakrabarty, 447 U.S. at 315. v. Alfred H. Mayer Co., 392 U.S. 409 greatly improve the human experience. 18 Cbakmbm·ty, 447 U.S. at 316. 0968)). To blind ourselves to the possibilities, 1 " ld. at 317. <; lei. , at 230 2 56 even if we could, would be the greatest ') Cbakrabarty, 447 U.S. at 310. 35 u.s.c. § 284. injustice of all. 2 1 E.xparteAIIen, 2 U.S.P.Q.2cl1425 (PTO .H jane E.R. Potter and jean B. Foidis, The Bel. Pat. App. and Int. 1987). Impact of GAlT and Trips on U.S. Petent 22 Allen, 2 U.S.P.Q.2cl at 1426. Law, 10 Me.B ..J. 400, 401 (November, Carl Ronald is a second-year day student at 2 ·~ 1077 Official Gazette Pat. Office 24 (Apr. 1995). the Duquesne University School of Law.

22 Spring 1996 • ------·-- ~I Tbe C lea.n A h" Act

embers of Pennsylvania's con­ gressional delegation were weighing a tough decision in 1990: Should they protect the environ­ ment? Or should they protect jobs? When the gavel finally fell on wide-reaching amendments to the Clean Air Restoration and Standards At­ 1 tainment Act , the environment clearly won, especially in Pennsylvania. President Bush subsequently signed the Clean Air Act amendments into law, and the price of doing business in Pennsylvania jumped significantly. Six years later, those charged with at­ tracting business to Western Pennsylva­ nia complain loudly that the Clean Air Act is a huge roadblock to economic growth in the region. 2 "There are companies out there that look at our region but don't seri­ ously consider Pennsylvania because the [pollution] restrictions are too hard," says Harold Miller, director of the South­ western Pennsylvania Growth Alliance, which promotes economic growth in the region. "There are other companies out there that we don' t even know about because they don't even look here from the beginning," Miller says.3 The air quality in Western Penn­ sylvania has gradually improved since the collapse of the steel industry.4 Nev­ ertheless, the Clean Air Act remains in­ tact, requiring companies that emit cer­ tain pollutants to purchase what are known as "emission credits." Some manufacturers, because of increased ef­ ficiency or plant shutdowns, possess more credits than they need, so they are willing to sell them to a company like Sony that needs credits to move ahead with a project. To make a long story short, com­ panies in Pennsylvania have to pay to pollute. And the excessive costs push Gasping for Breath both new and existing companies to Ohio or West Virginia, where the fed ­ eral pollution restrictions under the Some Say the Clean Air Act is Suffocating Pennsylvania Clean Air Act are less stringent.5 Com­ Businesses and Choking Economic Development. panies don't have to pay to pollute in Ohio and West Virginia, so it's cheaper Jim Urban Looks at the Controversial Law. to do business.

Spring 1996 23 #f ~ Science and tb(J taut; - j ~ - - iJl!r

The Vote costs. In the end, lawmakers justified Even worse: The amended Clean Some say 1990 was a time when supporting the amendments with the taking steps to preserve the environ­ Air Act placed the region in the Ozone argument that doing nothing to clean up Transport Region, another black list. So ment was one way politicians survived the nation's air would be even more the next election. Pennsylvania politi­ even if southwestern Pennsylvania's air costly as a result of higher health bills quality improves to the point where the cians did nothing to dispel that theory. 12 and related economic losses. region is redesignated as an attainment All but one Pennsylvania con­ Perhaps then-Senate majority area under the law, businesses here will gressman voted in favor of the Clean Air leader George Mitchell, the venerable 6 continue to face stringent pollution Act amendments , despite what corpo­ Democrat from Maine, best summed up rate heads in Pittsburgh said was obvi­ regulations because they are located the state of mind in Congress: within the transport region.16 ous: The ramifications of such a bill on "With the passage of this legisla­ Consider these requirements: Pennsylvania business would be felt for tion, we will take a long overdue step • Outside businesses locating years. The lone dissenter was Republi­ to renewing our national commitment here, or existing ones looking to expand, can U.S. Rep. Bud Shuster of Altoona, to an active, effective and aggressive must pay to pollute. They purchase who shouted "Nay" when the House program of controlling the pollutants emission credits from other companies voted on the bill. The rest-including that threaten the air we and all Ameri­ that have more than they need. The then-U.S. Rep. Tom Ridge of Erie­ cans breathe," Mitchell said right after buyer must obtain enough credits to voted affirmatively? In defense of Ridge 13 the Senate vote. cover 115 percent of their own emis­ and his Pennsylvania colleagues, they sions.17 weren't the only legislators who fell in • An existing business in south­ line behind the bill, which eventually western Pennsylvania is required to in­ breezed through both the House and ((Tbe good news for stall reasonable available control tech­ Senate. In the House, the vote was lop­ nology, or RACT, on top of other emis­ sided at 401-25. The Senate vote was 89- the people is that sion controls. The estimated cost is 10.8 $1,500 per ton of emissions.18 Ridge and many other lawmakers they are going to acknowledged the impact on business, Dne Company's Story estimating the amendments would take have cleaner air to Perhaps no company knows the about $22 billion annually from the economic effect of the Clean Air Act on 9 breathe. Tbe bad economy. Ridge, in fact, was among Western Pennsylvania better than Sony. many legislators who criticized the news is ... they are The electronics giant spent about $3 Clean Air Act amendments for the nega­ million acquiring emissions credits so it tive effect they would have on business. going to be out of could build a glass plant across the street Three months before Congress from its existing facility near New sent the bill to the White House, Ridge wor.k .... " Stanton, Westmoreland County.19 The took the House floor in Washington, -Tom Ridge, 1990 glass facility will open next year and em­ D.C., on May 23, 1990, and predicted ploy about 600 people, producing the dire consequences for big business.10 glass Sony uses in its picture tubes.20 "We know that people are going But the glass facility project almost to lose their jobs as a direct result of this In a nutshell, the law marked the didn't happen. Sony executives admit­ legislation, and, oh, indeed what a bit­ first overhaul of the federal clean air law ted that they had set a price limit for ter irony that is," Ridge told his House in 13 years. It required new pollution procuring the emissions credits. The colleagues from the podium. "The good controls on automobiles, factories, thou­ company liked the region' s skilled news for the people is that they are go­ sands of businesses and coal-burning workforce and its infrastructure, but had ing to have cleaner air to breathe. The power plants. 14 costs exceeded the limit, the project bad news is that they probably will have Specific to Pennsylvania, the wouldn't have moved forward in west­ a little more time to enjoy the outdoors, amendments designated Allegheny, ern Pennsylvania.21 to hunt and fish and generally enjoy this Armstrong, Beaver, Butler, Fayette, Procuring the credits wasn't easy. clean air, because they are going to be Washington and Westmoreland coun­ The search lasted about one year and in­ out of work as a result of this particular ties as a "moderate nonattainment" area cluded a trip to U.S. Bankruptcy Court piece of legislation." 11 for ground-level ozone. That designa­ for an auction of emissions credits held One of the hardest hit areas would tion was based upon high ozone levels by the former General Glass Co. of I be the Northeast, including Pennsylva­ the region experienced during the Jeannette, Westmoreland County. At the nia, since companies there would have drought of 1988. With such non-attain­ auction, another bidder with consider­ to pay to pollute while counterparts in ment designation comes the stringent ably deep pockets-General Electric­ Midwest states like Ohio had no extra and more costly pollution requirements.15 showed up and bid up the priceY

24 Spring 1996 i"--~~ -~ ~ --- ' I I The·CleanAirAct ,

Sony did end up with the General Then there is the issue of the In the meantime, Sony deserves Glass emissions credits and bought the Ozone Transport Region. Even if there­ credit for actually going through with remainder of what it needed from gion wins attainment status, it still the Westmoreland County project in­ 23 Sharon Steel Corp. , which had more would be subject to stringent emission stead of locating the plant in Wheeling credits than it needed. So Sony moved standards as part of the Ozone Trans­ or elsewhere to avoid the aforemen­ ahead with the project. port Region. As previously mentioned, tioned costs or hassles. Conversely, Sony But while Sony's story definitely Ohio and West Virginia are not in the at the same time is a benchmark for other is one of success, it also illustrates the region, even though power plants in the manufacturers that might consider locating burden the Clean Air Act places on com­ Ohio Valley are a source of the pollut­ in the region despite the Oean Air Act. panies that do business in Pennsylva­ ants blowing east.28 Sony found advantages to locating nia. Moreover, it illustrates why many Even some environmentalists in Westmoreland County and decided companies won't consider southwestern agree that Pennsylvania got a raw deal to eat the Clean Air Act costs. Until this Pennsylvania as a place to locate a from the Clean Air Act amendments.29 region gets out from underneath strin­ manufacturing facility. Just look at the One solution would be pushing gent pollution requirements, we can $3 million Sony spent to comply with the border of the transport region west only hope other manufacturers will the Clean Air Act. and south, leveling the playing field by weigh the benefits and costs, as Sony subjecting Ohio and West Virginia to did, and reach a similar conclusion. Today similar requirements. But don't expect Ridge, ironically, in his current ca­ cooperation from Congressional delega­ Jim Urban is a second-year evening student pacity as Governor of Pennsylvania has tions in Ohio and West Virginia. They at the Duquesne University School of Law launched several attacks against the know they have an advantage. and Executive Production Editor ofJuris. same measures he voted for in 1990. Late last year, for example, Ridge petitioned References the Environmental Protection Agency to 1 Clean Air Act, 42 U.S.C. §7401 et seq. 17 !d. at 1, 3. remove 37 Western Pennsylvania coun­ 1 0990). " Id. at 1, 3. ties from the Northeast Ozone Transport 2 Jim Urban, Sony and the Clean Air Act, 19 Jim Urban, Sony and the Clean Air Act, Region, an area covering 12 northeast­ Exec. Rep., Feb. 1996, at 26. Exec. Rep., Feb. 1996, at 26. ern and mid-Atlantic states that is sub­ 3 Id. at 26. 20 American Video Glass Co., Press Re­ ject to stringent and costly pollution con­ 4 W. Dietrich & T. Simon, Unfair Ozone lease, Nov. 17, 1995. 24 trol requirements. Rules are Costing us jobs, The South­ 21 Interview with Mark Small, Director The region's air today is not good, western Pennsylvania Growth Alliance of Corporate Environmental Affairs, but it's not bad. In fact, had it not been (July 24, 1995) at 1, 3. Sony Electronics Inc., in New Stanton, for unseasonably hot, humid periods 'Id. at 1. PA (Nov. 17, 1995). during some recent summers, the 6 136 Cong. Rec . H12845-03 0990). 21 jim Urban, Sony and the Clean Air Act, region's air would probably meet the 7 136 Cong. Rec. H12845-03 (1990). Exec. Rep., Feb. 1996, at 26. ground-level ozone requirements set by 8 H. josef Herbert, Anti-Pollution Bill 23 Id. at 26. 25 the Clean Air Act. So some hold out 2 Passes Congress, The Associated Press, '' Sharon Voas, Ridge Lobbies to Relax hope that the region can soon gain at­ October 27, 1990. Emission Regulations, Pittsburgh Post­ tainment classification. '> H. josef Herbert, Anti-Pollution Bill Gazette, Oct. 4, 1995, at Cl. But there's also the distinct possi­ Seen on Track for Enactment, The Asso­ 25 W. Dietrich & T. Simon, Unfair Ozone bility that the region's nonattainment ciated Press, Oct. 23, 1990. Rules are Costing us jobs, The South­ classification could be downgraded to 10 136 Cong. Rec. H2771-03, H2817 western Pennsylvania Growth Alliance "serious nonattainment." During last 0990) (July 24 , 1995) at 1, 3. summer's unrelenting heat, the level of 11 136 Cong. Rec. H2771-03, H2817 26 Sharon Voas, Soaring Ozone Level ozone recorded at one monitoring sta­ 0990) May Trigger More EPA Restrictions for tion in the region was the highest it has 12 H. josef Herbert, Anti-Pollution Bill Region, Pittsburgh Post-Gazette, Aug. 1, been since 1988, according to the Allegh­ Passes Congress, The Associated Press, 1995, AI. 26 eny County Health Department. October 27, 1990. 27 lei. at Al. If 28 a downgrade occurs, the 115 per­ 13 Id. W. Dietrich & T. Simon, Unfair Ozone cent capacity requirement on new or II Id. Rules are Costing us jobs, The South­ expanded plants would jump to 120 ts W. Dietrich & T. Simon, Unfair Ozone western Pennsylvania Growth Alliance percent. And regulations that now ap­ Rules are Costing us jobs, The South­ (July 24, 1995) at 1, 3. ply to businesses that produce 100 tons western Pennsylvania Growth Alliance 29 Telephone Interview with Shirley of emissions annually would apply to (july 24 , 1995) at 1, 3. Loveless, Pennsylvania Environmental businesses that produce 50 tons annu­ 16 !d. at 1, 3. Council, (Oct. 19, 1995). allyY

Spring 1996 25 -- :s CieJ1ii6,ii11ii ·rlis~ta;.i; i ------

Dave Kaleda Examines the Predicament Many Health Care Facilities Face When Employees Test Positive for HIV Precaution or Discrimination?

n the wake of the Fourth Circuit On appeal, Doe argued that the Because both parties agreed that Court of Appeals decision in Doe district court erred when it granted the HIV infection was a disability under the v. University of Maryland Medical hospital's motion for summary judg­ Rehabilitation Act and ADA and this System Corporation 1 the attention of the ment on the grounds that there was no condition was the reason for Dr. Doe's legal and health care communities is genuine issue of material fact present termination, the Doe court focused its again drawn to the AIDS crisis and the proving that Doe was not "otherwise analysis on the second requirement, possibility that a treating physician, qualified" under the Rehabilitation Act whether a health care worker infected nurse, or other health care worker who and the ADA to practice in the surgical with the HIV virus is "otherwise quali­ is infected with the human immunode­ setting.7 fied" to perform in his employment de­ ficiency virus (HN) will transmit the vi­ Pursuant to the Rehabilitation Act spite his disability. rus to a patient. Subsequently, the issue and the ADA, an employer cannot dis­ In determining whether a raised before our nation's federal courts criminate against an "otherwise quali­ neurosurgeon who was diagnosed as is whether hospitals and health care fa­ fied" individual with a disability.8 In HJV positive posed a significant health cilities can restrict the duties of a health order for a health care worker to prove risk to his patients despite efforts at rea­ care worker (HCW) or even terminate a prima facie case that either of these sonable accommodation, the court re­ his employment if his infection with the statutes has been violated, he must lied on the guidelines published by the HIV virus poses a threat to the health prove: (1) that he does in fact have a dis­ Center for Disease Control and the U.S. and safety of his patients. ability, (2) that he is "otherwise quali­ Department of Health and Human Ser­ The Doe court and others have es­ fied" to engage in the employment de­ vices entitled Recommendations for Pre­ tablished that a HCW infected with the spite the disability and (3) that he was venting Transmission of the Human Immu­ HJV virus, or with AIDS, is not "other­ "excluded from employment" based nodeficienC1J Virus and Hepatitis B Virus wise qualified" to perform certain types solely on the disability.9 to Patients During Exposure-Prone of procedures due to their disability A health care worker is not "oth­ Invasive Procedures. 12 under both the Rehabilitation Act of erwise qualified" pursuant to either stat­ This report has proven to be the 19732 and the Americans with Disabili­ ute if he poses a significant risk to the document most heavily relied on by the ties Act of 1990 (ADA).3 Subsequently, health or safety of others by virtue of courts when determining whether an an employer can restrict or terminate the disability that cannot be eliminated HIV positive HCW presents a signifi­ an HIV-infected HCW's practice or pa­ by "reasonable accommodation."10 cant health and safety risk to his patients tient-care responsibilities under limited The Supreme Court has stated that which cannot be eliminated by reason­ circumstances. the following factors should be consid­ able accommodation. In Doe v. University of Man;land ered in determining whether a health In this report, the CDC acknowl­ Medical System Corporation (UMMSC), care worker or other employee with an edged little is known about the HJV vi­ Dr. Doe, a former resident of neurosur­ infectious disease poses a significant risk rus and all of the methods by which it is gery at UMMSC, brought claims to the health and safety of his or her transmitted. However, the medical com­ against his employer UMMSC, under patients: '"(a) the nature of the risk (how munity has widely recognized that the the Rehabilitation Acr and Title II of the the disease is transmitted), (b) the du­ virus can be transmitted through the ex­ Americans with Disabilities Act (ADA)5 ration of the risk (how long is the car­ change of blood or through the virus's when his surgical privileges were re­ rier infectious), (c) the severity of the risk contact with the mucous membranes. voked due to his testing positive for (what is the potential harm to the third Because the disease can be transmitted HIV. When he refused to accept alter­ parties) and (d) the probabilities the dis­ in such a manner, the CDC stated that native residences in a nonsurgical field, ease will be transmitted and cause vary­ there was a possibility that an HIV-in­ UMMSC fired Doe.6 ing degrees of harm."'11 fected surgeon could transmit the virus

26 Spring 1996 ~ }iN a.nd H.ealtb Ca.1:e.

through a wound he suffered during certain types of surgical procedures. Such a wound would include a la cera­ tion from a scalpel, a needle stick from a hypodermic needle or probe, or some other surgical accident. The CDC also concluded that the risk was extremely slight. The estimated risk of a patient contracting HIV from a needle stick was between .0024%, or 1 in 42,000, and .00024%, or 1 in 417,000. However, the "accumulated risk" of transmission during a surgeon's career is substantially higher, from .8%-8.1 %_13 Although the CDC recognized there was a slight chance that HIV could be transmitted through a surgical or medical accident, the CDC also distin­ guished between invasive procedures and "exposure-prone" invasive proce­ dures in determining whether a health care worker's patient-care activities rus will in some other way contact the judgment and concluded that Dr. Doe should be limited or terminated due to mucous membranes of the patient's.15 was not "otherwise qualified" pursuant the risk of HIV transmission. Invasive Based on its distinction between to the Rehabilitation Act and the ADA procedures include a wide range of ac­ invasive procedures and "exposure­ because he "posed a significant risk to tivities which require a health care pro­ prone" invasive procedures, the CDC the health and safety of his patients that fessional to enter the body cavity. For made the following recommendations. cannot be eliminated by reasonable ac­ example, placing an intravenous needle The CDC concluded that there was no commodation."17 In so holding, the into a patient's vein or the vaginal de­ scientific or medical basis for restricting court rejected Dr. Doe's argument that livery of a child would constitute an an HIV-positive HCW's participation in the risk of his transmitting HIV to one invasive procedure. Due to the nature procedures, whether non-invasive or of his patient's during surgery was so of these procedures, there is little possi­ invasive in nature, as long as he strictly "'infinitesimal"' that the risk was insignifi­ bility of an exchange of blood or con­ followed the following guidelines: (1) cant under the Rehabilitation Act and ADA tact of the virus with a mucous mem­ application of the universal precautions Despite the fact that the risk of brane.14 against infection, which include the transmission by surgical accident is An "exposure-prone" invasive washing of hands, use of barriers such small and that no known case of HIV procedure, on the other hand, poses a as gloves, masks and eye protection, and transmission by a surgeon to one of his much greater risk of percutaneous, or the proper disposal of needles and other patients has never been reported, the 1 skin piercing, injury to the health care instruments; (2) adherence to accepted court held that the mere risk of trans­ worker. surgical or dental technique; and (3) ap­ mission is sufficient to establish the sur­ These "exposure-prone" proce­ plication of the CDC's current recom­ geon poses a significant threat to the dures are found in the surgical setting mendations for instrument sterilization. health and safety of his patients. The where a surgeon or assistant is required On the other hand, because partici­ court, in rendering its decision, focused to place his or her hands in the body pation in "exposure-prone" invasive on the grave consequences which may cavity simultaneously with needles, procedures involved a greater likeli­ result from the transmission of the HIV scalpels or other sharp surgical instru­ hood of surgical accident, the CDC rec­ virus, namely, the development of the ments. Many of these operations are ommended that each health care facil­ deadly AIDS disease. Moreover, based performed in areas where there is little ity determine which invasive proce­ on the CDC report and the hospital's visibility and little space, so the surgi­ dures it conducts are exposure prone conclusion that all procedures provided cal instrument and the hands are in close and how the HlV positive HCW's role by Dr. Doe were exposure-prone, the proximity. Because the possibility of a should be restricted or eliminated in court held the risk of percutaneous in­ percutaneous injury is greater under such procedures. 16 jury could never be eliminated through these conditions, the risk of HIV trans­ In light of the CDC s report on the reasonable accommodation. Subse­ mission increases due to the possibility prevention of HIV transmission in the quently, the district court's entry of sum­ that the HCW's blood will come in con­ health care setting, the court affirmed mary judgment in favor of UMMSC was tact with that of the patient's, or the vi- the district court's entry of summary affirmed.18

Spring 1996 27 - -- Scie1:zce and tbe Law

an accident could not be eliminated by der the Rehabilitation Act and the ADA "reasonable accommodation" because to perform these procedures due to the his entry into the body cavity was an risk of HIV transmission to a patient. ". . . the door has "essential function." The very reason for Subsequently, the door has been a surgical technician's presence in the opened for hospitals and health care fa­ been opened for operational field, to reach into the body cilities to restrict or even terminate the hospitals and health cavity during surgery, subsequently ex­ employment duties of a HCW infected poses him to the risk of percutaneous with the HN virus if the "essential func­ care facilities to injury. Thus, as the court found in Doe, tion" of ills employment includes par­ restrict and even the possibility of percutaneous injury ticipation in procedures which involve could not be eliminated through "rea­ both direct contact with a patient's body terminate the sonable accommodation."21 cavity or mucous membranes and the employment duties The Fifth Circuit also rejected possibility of a needle stick, laceration, Bradley's argument that he should have or other surgical accident. Of course, the of a HCW infected been reassigned to a position which in­ question remains unanswered whether with the HIV virus. . . " volved patient contact. The court held a HIV-infected HCW participating in that under the Rehabilitation Act an nonexposure-prone invasive proce­ employer is not required to find an em­ dures or non-invasive procedures is ployee a particular job and that its only "otherwise qualified" because the risk duty is to find "him alternative employ­ of transmission during these proced ures The courts have upheld actions ment opportunities reasonably available may be nonexistent or eliminated similar to those taken by UMMSC in under the employer's existing poli­ through "reasonable accommodation." Doe. In Bradley v. University of Texas M.D. cies."22 19 Anderson Cancer Center , the appellant, The Fourth and Fifth Circuit a surgical technician who was diag­ Courts' decisions were most recently fol­ Dave Kaleda is a third-year day student at nosed as HIV-positive, brought an ac­ lowed by the U.S. District Court for the the Duquesne University School of Law. tion against his employer, the Cancer Western District of Michigan. In Mauro 23 Center, under the Rehabilitation Act of v. Borgess Medical Center , the district 1973 in response to his reassignment to court granted the hospital's motion for References the purchasing department after his summary judgment on the grounds that public announcement that he was HIV­ the plaintiff, a surgical technician who 1 50 F.3d 1261 (5th Cir. 1995). positive. was diagnosed as HIV-positive, pre­ 2 29 U.S.C. § 701 , et seq. Bradley claimed that despite his sented no genuine issue of material fact 3 42 U.S.C. § 12101 , et seq. 4 disability, he was "otherwise qualified" proving he was "otherwise qualified" to 4. 29 U.S.C. § 794 . s 42 U. S.C. § 12132. to continue his employment as a tech­ perform the "essential functions" of his 6 Doe , 50 F. 3d at 1262. nician and that his employer had re­ employment. 7 !d. fused to make "reasonable accommoda­ The court held the plaintiff's con­ 8 !d. at 1264; See 29 U.S .C. § 794(a) and tion" by changing his job description so dition presented a "direct threat or sig­ 42 U.S. C. § 12132, respectively. that he would not be required to place nificant risk to the health and safety of 9 lei. at 1264-5. ills hands within a patient's body cav­ others." Moreover, the court was not 10 lei . at 1265. ity during surgery.20 convinced by the plaintiff's argument " !d.; citing School Bel. Of Nassau Cnty. In reviewing the district court's that his direct contact with a patient's V. Arl ine , 480 U.S. 273 0987). 11 entry of summary judgment, the Fifth incision was not an "essential function" lei. ar 1263; citing 40 Morbidity & Mor­ tality Weekly Heport 1 (July 12, 1991). Circuit Court of Appeals concluded Bra­ of his employment as a surgical techni­ l j ld. cian, but merely a "marginal function of dley was not "otherwise qualified" un­ 14 !d.; See 40 Morbidity & Mortality Weekly der the Rehabilitation Act to continue the position." Although the need for a Re port 1, 3-4 (July 12, 1991). his employment as a surgical technician technician to come in direct contact with I; Id. because he could not perform the "es­ a patient's incision was infrequent, the 16 !d. at 1263-4. sential functions" of his job. court concluded that "the need for such 17 !d. at 1266. Relying on the CDC's report on the assistance was foreseeable and is essen­ 18 !d. at 1266-7. prevention of transmitting the HIV vi­ tial to the success of a surgical proce­ 19 5 F. 3d 922 (5th Cir. 1993). 20 rus during exposure-prone procedures, dure." 24 !d. at 923-4. 21 !d. the court concluded the risk of transmis­ In conclusion, as reflected by Doe, 22 !d. at 925. and a HCW that partici­ sion was small but "not so low as to Bradley, Mauro, 23 886 F. Supp. 1349 (W.O. Mich. 1995). nullify the catastrophic consequences of pates in "exposure-prone" invasive pro­ 14 Id. at 1352-3. an accident." Moreover, the risk of such cedures is not "otherwise qualified" un-

28 Spring 1996 ------z------•-=->- ---· Science Fiction.

Professor Bruce Ledewitz Tells How He and Students Survived a Summer Course that Mixed Law and Science Fiction Asimov Goes to Law School his past summer, I was able to able subject matter under the statute. Modern Science Fiction teach a course entitled "Law and The students and I were already aware In this class, we took a wide-rang­ Science Fiction" in Duquesne Uni­ science fiction takes the dangers and ing look at common themes of modern versity Law School's summer program 1 consequences of such activity very seri­ science fiction. We noted five themes: What is a "Law and Science Fiction" ously. So did Chief Justice Burger's ma­ regulating human-like life forms and the course about? There are obvious com­ jority opinion.3 But the opinion dis­ nature of technological disaster-for parative law aspects to any species of counted the danger by questioning the which we looked at portions of the mov­ "law and utopia" course, which "Sci­ role of law in regulating the risks inher­ ies "Blade Runner" and "The Androm­ ence Fiction" clearly is. In addition, the ent in scientific advance: "[L]egislative eda Strain"-the computer that wakes course was meant to be a lark-a piece or judicial fiat as to patentability will not up-The Moon is a Harsh Mistress5-fu­ of summer fun. deter the scientific mind from probing ture domination by foreign corpora­ But I had another purpose as well. into the unknown.. . ." 4 tions, and one theme that would be em­ As a fan, I have read a good deal of sci­ In a world that is new-such as the phasized later in the course-the alter­ ence fiction. In most of these readings, world of man-made life-the forms of ation of human consciousness. lawyers are absent. Lawyers do not go law may also have to be new. If regula­ into space; nor does law play much of a tion is not to be done by courts and leg­ The author and an otherworldly friend. role in solving the future problems of islators, what ordinary processes are humankind. possible-and desirable-to oversee the For me, this state of affairs was not ordering of scientific endeavor? a minor matter. It suggested that law Or, is no ordering to be was regarded as irrelevant and possi­ done? We were all sobered bly malignant to the basic concerns of by Chakrabarty. people. Since the writers of science fic­ The second part of tion are sensitive and insightful, this the first class had a more characterization of law was disturbing traditional law and to me. I thought to examine the phe­ literature focus: images nomenon close up. For me, that meant of the law and lawyers teaching a course. in science fiction. We watched the most famous Law Today lawyer scene in recent movie In the first part of the first class, I history-the lawyer being eaten introduced the students to the current in Jurassic Park- and read two connection between law and advanced treatments of the law in "Star Trek: technology. This included the law of The Next Generation." outer space and issues surrounding the Science fiction is attuned to patenting of non-naturally occurring current popular disquiet about law life. and lawyers. But the literature goes The discussion of the latter topic, further, raising the questions, what for which the students read Diamond v. does society need law for, and what 2 Chakrabarty , changed my attitude-and kind of law. I asked the students I think their attitudes-about the course about the lawsuits to come in and the relationship between law and Jurassic Park and whether this technology. The United States Supreme specter undermines- or justifies­ Court held in Chakrabarty that a live, Chief Justice Burger's legal human-made microorganism is patent- skepticism in Chakrabarty.

Spring 19% 29 Science and tbe La.w

In terms of technological disasters, the one hand and human independence There are four ways to solve the we returned to the first-class theme of on the other. We watched the wonder­ problem of unimaginable distances in the regulative role of law. We discussed ful opening of The Day The Earth Stood science fiction: 1) an invention that tran­ the following quote from Hot Sky at Mid­ Still, in which humankind's first re­ scends some of the laws of the uni­ night6, a novel set in a future of disas­ sponse to alien contact is a military one. verse---"worm holes" or "warp drive," trous environmental degradation. Paul The short stories we read on this theme 2) some form of dormancy for the crew, Carpenter, an employee of Samurai In­ raised a number of issues along the lines as in the movie" Alien," 3) inter-genera­ dustries, is trying to decide whether to of "us and them" and the place of the tional voyages and 4) the effect of time issue a weather warning for a possibly other-rich issues for law. dilation from near speed-of-light travel oncoming toxic cloud. A warning could (which only tempers the problem). save lives. Economic and Religious Life One part of the class concentrated "On the other hand, the toxic In this class, the students were able on some of the practical aspects of sleep cloud could still turn around at any to speculate about what the future might and inter-generational space flight. Who minute and go away without doing any be like. In terms of economics, modern would go? What mix of males and fe­ harm. Broadcasting premature warning science fiction tends to suggest either the males? And how would a sleeping crew of an oncoming peril that wasn't actu­ all-powerful State or the decline of the later cope with unexpectedly changed ally coming could lead to needless fac­ nation-state and the rise of government circumstances? tory closings and panic among the ci­ by corporations. One short story we In some ways my favorite part of vilians; very likely a massive flight of read, Bruce Sterling's "We See Things the course concerned directives that people from the area, which would Differently," described an Earth of com­ might be given to the crew of an inter­ choke the highways and have environ­ peting religious-economic blocks. The generational flight. We looked at a range mental consequences of its own. After Moon is a Harsh Mistress outlines the of material in which a later generation which would come a bunch of lawsuits possibility of small scale, free market considers changing the mission of such demanding damages because the threat­ social and economic arrangements. a flight. ened disaster had failed to materialize. How does a society prevent such People would want to be paid for emo­ changes or at least retard them? Here we tional stress, unnecessary expenses in­ Often, in science fiction, argued the same questions that people curred, interruption of trade, any devices allow all lies to ask about amending the Constitution. damned thing. Samurai Industries hated Should the crew be given a text and a being entangled in lawsuits. They had be known or the past to means for amendment? Or, is every­ pretty much the deepest pockets be replayed. What, if thing properly the later generation's around, and everyone knew it."7 decision anyway? This quote reflects an important anything, is left for law No one perspective emerged in flaw in the judicial component of the to do in such a world? discussions of science fiction's views of legal system. As the environment wors­ nature. Nature can be the avenger of ened over time, there was no one to environmental degradation, as in Hot sue--and perhaps no one with standing Science fiction treats religion either Sky at Midnight. Or, nature can be the to sue-to address the situation. But sympathetically or with hostility. For repository of great wisdom, beyond the later, with catastrophe a fact, efforts to hostility we looked at a part of the movie power of humankind to penetrate. deal with it could be hindered by that version of "The Handmaid's Tale." For The original Star Trek series sees same "impotent" legal system. We con­ a more sympathetic view, we looked at nature as the context for the id-the ir­ sidered how Chief Justice Burger would a science-fiction-like portion of Walker rational forces contained in humans. We respond. Percy's book, Lost in the Cosmos. 8 The watched the Star Trek episode "By Any question that emerged was whether re­ Other Name" in which an invading Criminal Law ligion represents a violent relic of a su­ alien species is thwarted because they My major interest in the summer perstitious past, which we would do were forced to occupy human bodies course was the model of criminal law well to discourage in the future, or does and suffered from sensory-stimulation­ in a context in which all facts could be religion represent one of the few forces over-load. known. Often in science fiction, devices that could shelter humanity from the allow all lies to be known or the past to inhumane forces of science and capitalism. Government in the Galaxy be replayed. What, if anything, is left for This class was the most law re­ law to do in such a world? The Rodney Long-Term Space Travel lated. The major topic was government King episode emerged as a marvelous The possibilities of long-term structures in the galaxy. We developed counterpoint to science fiction. space travel made my students into the four basic models: colonial, "Federa­ The theme of first contact with social engineers that lawyers were once tion," empire, and "cold war." We also alien life raised issues of colonialism on thought to be. examined some subsidiary topics dur------1 30 Spring 1996 ~~ [ __ ~--~ ·-~j ing Class 6: The Law of War, basic legal cuss such a controversial and emotional paradigms governing interplanetary topic and the discussions that do occur relations and the principle of non-inter­ are usually painful and angry. References ference. "Science Fiction" was the first time 1 Professor of Law, Duquesne Uni­ On the level of comparable cul­ I saw students talk freely about what it versity School of Law. I must thank tures, the principle of non-interference means to define membership in a group. rwo persons in particular: Duquesne in internal affairs is a common principle Students really did move from fetuses Law Librarian Frank Liu who elicited of international relations on Earth. In to handicapped persons to robots to the usual tremendous cooperation this regard, we watched a portion of the animals and tried to take account of dif­ from his staff and Jim Whalen, a sci­ "Star Trek: The Next Generation" epi­ ferences and similarities. ence fiction author himself and a sode "Redemption," in which the Fed­ member of Frank's staff. Without eration conducts complex military I dip­ Social Hierarchy Jim's detailed knowledge of the field, lomatic activities in the midst of a It turns out that science fiction, or the course would not have been Klingon civil war. at least that portion of it that I know, is taught. Another sincere thank you is On the level of cultures of vastly rather weak on issues of race and class. due to David Lang and his staff at Du­ different development, the principle of The closest one comes to critique is un­ quesne University Bookstore. non-interference is an anthropological conscious racism. For example, in Hot 2 47 u.s. 343 0980). commitment to prevent cultural con­ Sky At Midnight, Paul Carpenter notes 3 Id. at 316 (noting comments by tamination. We discussed whether such that his immediate supervisor will never reputable scientists.) a principle was wise and whether it ap­ rise in the Japanese corporation because ' Id. at 317. plied when the Federation itself came of a racial breach of convention. This 5 Robert Heinlein, The Moon is a into contact with more technologically Japanese bashing, which is common in Harsh Mistress, (Ace eel. 1987). advanced civilizations. science fiction, points both to the racism 6 Robe1t Silverberg, Hot Sky at Mid­ of the Japanese and to that of the Ameri­ night (1994). Who or What is a Person? cans who write this way. 7 Id. at 18-19. It was not difficult to draw analo­ One of the high points of the class 8 Walter Percy, Lost in The Cosmos gies between the treatment of this topic was the wealth of excellent materials (1983). in law and its treatment in science fic­ concerning gender. 9 10 U.S. 113 (1973). tion. We began discussion with three ex­ The students, especially the male 10 Id. at 156-59. amples of this issue arising in law: Jus­ students, were shocked by the depth of 11 Transplant News, 5/31/95 (NEXIS). tice Blackmun's conclusion in the Roe v. bitterness against men exhibited in a 12 Atlantic Constitution, 6/24/95, Sec­ Wade 9 majority opinion that a fetus is not number of stories written by women.14 tion C, p.l. a "person" within the language and This bitterness was not combined with 13 Reprinted in Asimov, The Complete meaning of the Fourteenth Amend­ an appeal to a powerful sisterhood. In­ Robot, 519 (1982). 10 ment, a proposal by the American deed, the stories were neither reformist Ito Three particularly powerful ex­ Medical Association's Council on Ethi­ nor revolutionary. Obviously, the domi­ amples are Suzeue Haden Elgin's "For cal and Judicial Affairs that parents of nant male hierarchy was viewed as un­ the Sake of Grace", Pat Murphy's "His anencephalic babies be permitted to do­ just, but that did not mean that it would Vegetable Wife," and Candace Jane nate organs from these babies before change. Individual acts of heroism were Dorsey's "(Learning About) Machine they die 11 and Larry Grant Lonchar's possible but no appeal was made to the Sex". attempt to prevent his electrocution so possibility of social transformation. 15 The Norton Book of Science Fic­ that he could donate his organs.12 The words of Mrs. Parsons in tion, Ursula K. LeGuin and Brian We compared all of this with the James Tiptree Jr.'s story (the pen name Attebery, eels. (1993), at 255. plight of Data, the android whose pur­ of Alice Sheldon), "The Women Men ported status as property was litigated Don't See"15 not only captures this tone in the "Star Trek: The Next Generation" of deep hostility but even foreshadows episode "The Measure of a Man." Of the coming reaction against feminism. course, we looked at other materials (The story was published in 1973). Bruce Ledewitz is a professor of law at the along these lines as well, including Isaac "Women have no rights, Don, ex­ Duquesne University School of Law. Asimov' s classic story, "The Bicenten­ cept when men allow us. Men are more nial Man. 13 aggressive and powerful, and they run It was this class that showed me the world. When the next real crisis up­ the power of a course like law and sci­ sets them, our so-called rights will van­ ence fiction. Classes about abortion in ish like-like that smoke. We'll be back law school are almost always dissatis- where we always were: property." fying. The students often refuse to dis-

Spring 1996 31 - ~ ~ Feature J - ... . _.d

tn Up to Help Arts Groups

afloat, but they could not afford it. vice include, but are not limited to, copy­ "These organizations operate on a shoe­ right, trademark and intellectual prop­ ennsylvania Professionals for the string budget. Without assistance some erty matters and formation of nonprofit Arts (Pro~Arts), a new nonprofit of them would not be able to survive," organizations. Individual artists whose organization, has found its way says Marc Sternberger, a Duquesne Uni­ annual incomes are $20,000 or less and into Pittsburgh's cultural life, combin­ versity Law School alumnus and one of arts organizations with annual operat­ ing the capacities and forces of Business the founders of ProArts. "Our goal is to ing budges of $100,000 or less are gen­ Volunteers for the Arts/Western Penn­ protect and nourish these small and me­ erally eligible for pro bono services. sylvania (BVA) and Pittsburgh Area Vol­ dium arts organizations when they are Most of the ProArts endeavors unteer Lawyers for the Arts (PAVLA). most vulnerable," adds Ann Cahouet, a have been very successful. Advertising ProArts was the brain child of en­ board member of ProArts and coordi­ in the Cultural Trust Newsletter and on thusiasts who valued the importance of nator of Reed Smith Shaw & McClay's WQED has brought name recognition the arts in the Pittsburgh community, legal pro bono program. and a sharp increase in the number of and also recognized the need for an or­ requests for legal or managerial assis­ ganization that would coordinate and "Tbese organizations operate tance from arts organizations. ProArts bind the loosely linked arts organiza­ on a shoestring budget. is trying to attract more professional tions, businesses and lawyers interested members to its organization. Increased in the arts and their development. Without assistance some of fund raising is another goal for ProArts, The goal is to benefit the arts com­ them would not be able to since it now operates on a very limited munity in Pittsburgh through the legal suroive." budget. and business pro bono assistance that Other projects underway include its members would provide. Its mission Sternberger and some other attor­ a series of publications covering legal is to strengthen and support Western neys on the Allegheny County Bar As­ topics of interest to arts organizations Pennsylvania's diverse arts community sociation Arts and the Law Committee and expansion of the databank of legal by cultivating a new generation of lay started exploring the possibilities with forms is in the process of expansion. leadership for Pittsburgh's cultural sec­ the Allegheny County Bar Association. Also, a computer program quantifying tor and to foster cooperation and part­ At the same time Business Volunteers the dollar value of the legal and busi­ nership among cultural organizations, for the Arts (BVA) came into existence ness services to arts organizations will businesses and law firms. under the aegis of the Greater Pittsburgh be installed. A study done by the Pennsylva­ Chamber of Commerce. Finally, in 1994 "It is a win-win situation, because nia Economy League in 1989 showed the two organizations joined forces un­ preserving the diversity and vitality of that the total impact of the 36 major lo­ der the umbrella of ProArts, which be­ our region's cultural life spins off eco­ cal arts organizations on the local came the licensed BVA affiliate. nomic benefits to our community," economy exceeds $120 million annually. In less than 18 months from its in­ Sternberger observes. That makes a dif­ The study also showed a support and ception ProArts has grown both struc­ ference, does it not? funding pattern by corporations and turally and functionally. It matches governmental entities that benefited needy artists and arts organizations If you are interested in ProArts, please larger, widely known arts organizations with its volunteer lawyers and business contact Marilyn Colemn at ProArts, P.O. at the expense of smaller, unknown or­ people. It provides educational pro­ Box 19388, Pittsburgh, PA 15213-5388; ganizations trying to establish their ar­ grams for the Arts community, members Telephone: 412-268-8437 Fax 412-268-8620 tistic reputation and financial indepen­ of ProArts and local arts boards includ­ E-mail: proarts@cmu .edu dence. ing workshops, continuing legal educa­ These small, newly formed orga­ tion seminars (in cooperation with the Nikolay Diankov is a second-year day stu­ nizations needed assistance, legal ser­ ACBA) and cultural leadership forums. dent at the Duquesne University School of vices and business advice to remain Arts related legal services and ad- Law.

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