Duke Law Magazine DEAN EDITOR ASSOCIATE EDITOR PHOTOGRAPHERS DESIGN CONSULTATION Pamela B. Gann Evelyn M. Pursley lanse Conover Haywood Dan Crawford Cassell Design Ron Ferrell LesTodd Jim Wallace

CONTENTS

From the Dean ...... 1

FORUM German Unification: Political and Legal ...... 5 Aspects of Current Events / Herbert L. Bernstein The Hushed Case Against a Supreme Court Appointment: . 12 Judge Parker's "New South" Constitutional Jurisprudence, 1925-1933/ Peter G. Fish Capital Gains and the Laffer Curve: ...... 22 The Uneasy Case for a Lower Capital Gains Tax / Richard L. Schmalbeck

ABOUT THE SCHOOL Judicial Clerkships: An Exciting Opportunity...... 31 Law Students Shine in Moot Court Competitions ...... 37

THE DOCKET Duke Law Alumni on the Bench ...... 40 Alumnus Profile: John H. Adams '62, ...... 49 Shaping Awareness of Environmental Issues Alumnus Profile: Charles L. Becton '69,. 52 Litigation Specialist and Dynamic Teacher Faculty Profile: Robinson O. Everett, ...... 55 A Home-Town Judge Returns Loneliness Filled Noriega's Sanctuary...... 57 Book Review: Jerry Falwell v. Larry Flynt...... 60 The First Amendment on Trial by Rodney A. Smolla '78

Aboullhe Cover Specially Noted ...... , ...... 62 Associate Justice Joseph Story of me Alumni Activities ... .. 66 United Stares Supreme Courr is pic­ tured in an engraving from an Upcoming Events ...... 72 original painting by Chappel. Jus­ tice Story, who was appointed to the CoUI[ ar me age ofthirty-two, served fTom 1812 to 1845. Used wim per­ Duke iAw Magazine is published under the auspices of me mission of me Collection of me Su­ Office of rhe Dean, Duke University School of Law, Durham, preme Coun of me Unired Srares. Norm Carolina 27706 © Duke University 1990 v a L U M E 9, NO.1

From the Dean

n these few pages, I want to share information with you about our I most recent faculty appoint­ ments, new initiatives in the interna­ tional area, the Law School Alumni Association and Council, and the sta­ tus of our planning for the new addi­ tion to the Law School.

Faculty Appointments In the 1988-89 academic year, the Law School added to its faculty two persons with tenure-Jefferson Powell, whose scholarly work is a mix of con­ stitutional history and constitutional jurisprudence, and Neil Vidmar, a so­ cial psychologist whose research in­ cludes empirical studies of aspects of the litigation process. This year two instructor in two law schools. In her of the world's economies and mobili­ persons have agreed to begin their aca­ first year at Duke, she will teach a zation of people and the rapid speed demic careers at Duke. course in evidence and a first-year of information flows. Madeline Morris is a graduate of small section in property with its ac­ In response to the need for the in­ the Yale University undergraduate col­ companying research, writing, and ad­ ternational dimension in the Law lege and law school. She is just com­ vocacy components. Her research in­ School, the faculty has increased the pleting a clerkship with Judge John terests include federal sentencing, number of foreign faculty visitors who Minor Wisdom of the U.S. Court of religion and law under the First teach and perform research at the Law Appeals for the Fifth Circuit. In her Amendment, and legal history. School. Also, the Duke University first year at Duke, she will teach a We are delighted to welcome these School of Law is the only law school in course in employment discrimination new appointments to Duke. During the United States that offers students and a first-year small section in crimi­ the 1990-91 academic year, our ap­ the special opportunity to begin their nallaw with its accompanying re­ pointments efforts will largely focus juris doctor studies in the summer in search, writing and advocacy compo­ upon the field of public international order to pursue a formal joint-degree nents. Her research interests already law, because of Professor Horace program combining the juris doctor include federal sentencing, federal and Robertson's retirement in January degree with a master of laws degree in state constitutional rights to equal edu­ 1990, and upon appointments of mi­ international and comparative law. cational opportunity, and issues in the norities to the faculty. This J.D.lLL.M. degree program at­ area of employment discrimination. tracts to Duke a significant number of Laura Underkuffler is a graduate International Dimensions students with a special interest in in­ of Carleton College, the William No university of the first rank can ternational, comparative, or foreign Mitchell College of Law, and is just today ignore international studies and law. About thirteen percent of our completing the Doctor ofJuridical programs. The curriculum and degree juris doctor student body is enrolled in Science degree at the Yale Law School. programs at the best research universi­ this program. She has extensive legal professional ex­ ties in the United States will increas­ These students have several special perience, including being a partner in ingly encompass the international di­ requirements for the LL.M. degree. In a litigation law firm, an attorney in a mensions of various subject matters, particular, they are required (i) to take state public defender's office, and an reflecting the increased integration a course on comparative legal institu- 2 DUKE LAW MAGAZINE

Belgium, beginning the summer of of students from many countries with 1991. The program itself will not a broad range of interests. During the change in any important way, but the spring semester break, both the J.D.I location in Brussels will provide the LL.M. (in international and compara­ participants in the program an oppor­ tive law) and the LL.M. foreign stu­ tunity to see first-hand the European dents participated in a week-long series Commissions, the European Court of of briefings and meetings with repre­ Justice, the International Court ofJus­ sentatives of international, govern­ tice at The Hague, the U.S. Mission to ment, and trade organizations in the European Community, NATO, Washington, D.C. and New York and various international law firms. City. Many of our alumni assisted the The program will also be offered by Law School in arranging meetings and the joint efforts of our Law School and seminars, including Erik O. Autor the Law Faculty of the Free University '88, Louis J. Barash '79, James E. of Brussels (i.e., Universite Libre de Buck '60, Donna Coleman Gregg Bruxelles). The faculties of both Uni­ '74, Andrew S. Hedden '66, John A. versities are committed to providing a Howell '75, Gary G. Lynch '75, significant opportunity for law stu­ Edgar J. Roberts, Jr. '63, and dents and young lawyers to spend time Michael P. Scharf '88. I warmly Laura Underkuffler in an academic setting in Brussels that thank these alumni for their contribu­ also permits them to gain first-hand tions to the students' meetings. tions during their first year; (ii) to take knowledge of the important European The Law School's next efforts to the course on Research Methods in Community and regional and interna­ improve its international dimension International, Comparative, and For­ tional organizations located there. Our will be the search for a replacement to eign Law; (iii) to attend our four-week presence in Brussels will also provide a Professor Robertson, who retired this summer program on international and spring-board from which to develop year, in public international law. I per­ comparative law in Copenhagen, Den­ an internship program for students in sonally will be involved in the develop­ mark (the so-called "Duke in Den­ European and international organiza­ ment of a few excellent exchange pro­ matk" program); (iv) to prepare a su­ tions in Europe. grams with foreign universities for our pervised master's thesis in an area of Students interested in interna­ J.D.lLL.M. students as a part of their international or comparative law; and tional, comparative, and foreign law LL.M. curriculum. (v) to demonstate competence in a participate in a broad range of extra­ modern foreign language. curricular activities in the Law School. The "Duke in Denmark" program They operate an active International is a residential program, involving Law Society, which maintains a speak­ about sixty participants, approximately ers forum. The School of Law's Jessup one-third of whom are &om Duke Competition Moot Court team won University and the other two-thirds of the regional championships in both whom are from countries other than 1989 and 1990. Students have pub­ the United States. The faculty comes lished an International and Compara­ from our Law School and several for­ tive Law Annual and the faculty has eign universities. recently approved the conversion of Our Danish hosts have been par­ the Annual into a biannual publication ticularly helpful to Duke in planning called the Duke Journal ofComparative local arrangements and events, in rais­ and International Law, one issue of ing funds for Danish students to at­ which will always be devoted to Euro­ tend the program, and in curricular pean Community Law. development. Not withstanding the The Law School also has an LL.M. excellence of the program develop­ program for thirty to thirty-five young ment in Denmark, the Law School foreign lawyers. This program brings will move this program to Brussels, to the School an extraordinary group Madeline Morris VOL UME 9 , NO . 1 3

Law Alumni Association and Law Alumni Council All of our alumni belong to the Law School's Alumni Association, and we request each year that you make an annual dues payment to this Associa­ tion. I want to be sure that our alumni understand what this organization does and how its programs financed by your dues are an important part of the Law School's outreach to its alumni and the alumni contacts with our cur­ rent students. The Law Alumni Association is composed of all the Law School's alumni, and is governed by the Law Alumni Council of seventeen members and officers. The current president of the Law Alumni Association is Vincent Sgrosso '62 from Atlanta, Georgia and the president-elect is Richard "Chip" Palmer '66 of New York City. The officers and the Coun­ Professor John Weistart (far left) and students participating in the 1989 Duke in Denmark program enjoy an outing cil direct all of the Association's activi­ in Copenhagen. ties, which include planning the re­ union weekends; selection of alumni recipients for annual awards to recog­ create a communiry among our date, and I am working with groups of nize extraordinary public service; su­ alumni and very importantly bring alumni to complete the other fifty per­ pervision of the forty local alumni or­ alumni back to the Law School to en­ cent by next spring. We hope to be ganizations in the United States, joy each other and to assist the School able to break ground on the new addi­ Japan, Taiwan, and Europe; planning in training and counseling its current tion by the summer of 1991. This new the Annual Career Conference held students. I hope that all alumni will addition will enable the Law School each February by Law School alumni increasingly spend time in these after many years to operate in an ad­ for the benefit of the current students; alumni activities. equate physical plant relative to the planning two alumni seminars for cur­ size of its faculry and student body, rent students on topics important to Progress in Planning plus modernize to a great extent the the practice of law and the legal pro­ for our Building Addition library's space in the building. fession; supporting financially summer I have been regularly using these Our next publication is the Law jobs for students in areas of public in­ pages to keep you informed of the School's 1989-90 Annual Report. In terest law; and publishing the Law progress in our plans for our new that Report, I will provide you a fuller Alumni Directory. building addition. At this time, the financial report about the School and Because of the speed and cost sav­ architects are beginning the construc­ its capital planning and a broader cov­ ings created by desktop publishing, the tion document phase for the new addi­ erage of current issues in legal educa­ Law Alumni Council will now publish tion. Their work should be completed tion. the Law Alumni Directory each year. by the end of 1990 or early in 1991. In my travels to alumni, I have heard Simultaneously, I will be spending much appreciation of the urility of this most of my time completing the fund­ Directory. A substantial portion of the raising for the project financing of the Pamela B. Gann Alumni Association dues will be used $14 million new addition by the Dean to finance the annual publication of spring of 1991. This fund-raising is the Directory. All of these activities about fifty percent completed at this

VOL U M E 9, NO.1 5

Gerfllan Unification: Political and Legal Aspects of Current Events

Herbert L. Bernstein

present there is an abundance of speculation about the future of Central and Eastern Europe, including A the prospect of German unification. Much of this discussion is geared only to the most recent events in the various countries of that region. It is also very much focused on individual actors and the question for how long one or the other, especially Mr. Gorbachev, is likely to be in power. This style of debate reflects the attention span of a public dominated by television. In order to gain a better perspective on the German and the East-European question, I will attempt, first of all, to revisit the historical process of the last forty-five years which led to the present situation. Against this background I will then analyze the normative data and certain political struc­ tures which are likely to influence further developments in the region under consideration.

Historical Process On November 9, 1918 a German Revolution in Berlin and other cities brought down the Kaiser and led to the end of World War 1, as a consequence of which the entire politi­ cal landscape in Eastern Europe was changed dramatically. On November 9, 1989 a German Revolution in Berlin and other cities brought down, at least for all practical pur­ poses, the Berlin Wall, the most visible manifestation of the Cold War in Europe. Once again the political landscape in Eastern and Central Europe appears to undergo a process of rapid change. There were two other events in recent German history marking November 9 as a fateful date. On November 9, Professor of Law, Duke University. A native of Germany, Professor Bernstein has 1923 a group of Nazis, including Hitler, attempted a coup been at Duke since 1984. In Germany, he was a practicing member of the bar and against the Weimar Republic. After their rise to power in a professor of law at Hamburg University. He also taught at the University of 1933, the Nazis celebrated this event every year as the day of national "Erhebung," meaning uprising as well as elation. California from 1961 to 1911, and since 1958 he has been affiliated with the Max­ And on November 9, 1938 they staged the "Reichskris­ Planck Institute of Foreign and Private International Law. His writing concerns tallnacht," until then the worst pogrom ofJews in Germany, international law, conflict of laws, insurance and business law. This article is from foreshadowing the Holocaust. a lecture delivered in the Law School on November 28, 1989, sponsored by the The Berlin Wall symbolized more than Germany's parti­ International Law Society. tion. It stood for an order of things which has prevailed in Europe for many decades, just as the Kaiser, along with the Czar and the Austrian Emperor, stood for an older Euro­ pean status quo which lasted for several decades. Both before World War I and after World War II, a small number of powerful nations dominated the political 6 DUKE LAW MAGAZ I NE

many. An accompanying "Allied Statement on Control Ma­ The Berlin Wall symbolized more than chinery in Germany" was to the effect that supreme author­ Germany's partition. It stood for an order ity in Germany would be exercised by the Commanders-in­ Chief, each in his zone of occupation, and jointly through of things which has prevailed in Europe the Allied Control Council in Berlin, in matters affecting for many decades ... Germany as a whole. The Allied Kommandatura for Berlin where each of the four powers occupied and controlled one of four sectors, was charged with the exercise of four-power scene in Europe. Toward the end of the 19th century and control of the entire city. It must be remembered that the early in this century, Britain, France, and Italy were the presence of British, French, and U.S. troops in Berlin was dominant Western powers, while Russia, Austria and Ger­ not the immediate result of military action in World War II; many were the major players in Eastern and Central Eu­ Soviet troops alone had conquered the city. Contingents of rope. The Poles, the Czechs, the Slovaks, and many other the Western allies moved into Berlin on the basis of an peoples in the Balkans, the Baltics and elsewhere in Eastern agreement with the Soviets. As a quid pro quo, this agree­ Europe had no voice or a very minor role in politics. After ment also provided for the withdrawal of British and Ameri­ World War II, a terribly devastasted and impoverished Eu­ can forces from territories they had occupied in Mecklen­ rope was in effect in the hands of only two major powers: burg, Thuringia and Saxony. These territories became part the United States and the Soviet Union. These two nations of the Soviet zone of occupation. emerged from the second Great War of this century as the The Declaration ofJune 5, 1945 also stated that the four "Superpowers." powers had no intention to effect the annexation of Ger­ One of them centered outside of Europe, the other at its many, and it continues: 'The Governments [of the four fringes, the Superpowers have been global antagonists as powers] will hereafter determine the boundaries and the sta­ well as the crucial powers in Europe for more than four de­ tuS of Germany or of any area at present being part of Ger­ cades. Their geographical, ethnic, and social make-up is man territory." At the Potsdam Conference in July and Au­ completely different, their historical experiences are quite gust 1945, the Soviet Union, the United States, and Britain diverse, their official ideologies diametrically opposed. Com­ decided to place certain German territories east of the Oder­ ing from such inconsistent backgrounds, they became allies Neisse line under Polish administration until a peace treaty for a brief period in World War II, as when they entered would determine the permanent status of these territories. into agreements providing for a vaguely defined post-War The Potsdam Protocol and the June Declaration also world order under the aegis of the United Nations and cre­ reformulated principles and policies for the treatment of ated two fairly clearly defined spheres of influence in Eu­ Germany previously stated at the Yalta Conference of Feb­ rope. They also appeared to have agreed on certain prin­ ruary 1945 and worked out in greater detail at meetings of ciples and even on many details of the policy to be pursued expert groups in London. in Germany after its defeat. Profound disagreement soon developed between the This appearance soon proved to be false. But in 1944-45 United States and its Western allies on the one hand, and the Soviet Union on the one hand and the United States on the Soviet Union on the other, over the execution of these the other, acting together with its ally Great Britain, set up a policies. Each side blamed the other for serious breaches of mechanism and rules for the control of Germany under oc­ their mutual undertakings. There was never any genuine cupation. Later, France was permitted to participate in the consensus on the proper interpretation of any of the big-D occupation regime in Germany. After the unconditional objectives: Democratization, Denazification, Demilitariza­ surrender of the German army in May 1945, the four pow­ tion, and the Decentralization (Demonopolization or De­ ers, on June 5, 1945, issued the "Declaration Regarding the cartellization) of Germany's economy. In fact, even among Defeat of Germany and the Assumption of Supreme Au­ thority with Respect to Germany." This document is of great political and legal significance still today. After the After the opening of the Berlin Wall and opening of the Berlin Wall and the other dramatic changes in East Germany, the 1945 Declaration will in fact assume the other dramatic changes in East Ger­ renewed importance after many years of a rather dormant many, the 1945 Declaration will in fact existence. assume renewed importance after many The Declaration ofJune 1945 stated that no central gov­ ernment existed in Germany and that the four governments years ofa rather dormant existence. therefore assumed supreme authority with respect to Ger- VOLUME 9 , NO . 1 7

and the formation of the Federal Republic of Germany in In Berlin there was complete freedom of 1949. movement between East and West until All of these steps taken under American leadership ini­ tially met with sometimes vehement opposition, resistance, August 13, 1961, the day the Wall began or reservations, either from America's allies or from the Ger­ togo up. mans, or both. The American position, however, always pre­ vailed. Needless to say the Soviets protested all of these de­ velopments. The Soviet representatives left the Control the Western allies these objectives were not always uni­ Council in the spring of 1948. Immediately after the cur­ formly understood and pursued. Especially the British rency reform in June 1948, the Soviets imposed a blockade Labour government sometimes tried to put ideas of its own on West Berlin to force Berlin and the Western powers into into effect in Germany, and so did various French cabinets, compliance with certain Soviet demands and, if possible, to whether they were dominated by Gaullists, Centrists, or move Western troops out of Berlin. This was answered by Leftists. On the whole, however, American hegemony was the air lift, and after ten months, the blockade was termi­ quickly and firmly established not only in Germany, but nated on May 12, 1949. throughout the Western world. By the end of 1949 we find two states in Germany: the The Marshall Plan of 1947 and the NATO Treaty of Federal Republic comprising the three Western zones, and 1949 are well-known milestones in a process by which the the German Democratic Republic in the Soviet zone. Until United States assumed a leadership position after World 1955, these two entities were subject to severe restrictions of War II which it had failed to assume after World War I. their powers. In West Germany the Occupation Statute en­ Conditions were of course much more favorable to the acted by the United States, Britain, and France in 1949 set United States now than they had been then. The second out in detail the powers reserved to ensure the accomplish­ World War saw a host of victors, but only one real winner. ment of the basic purposes of the occupation, including The United States emerged from that War as the one coun­ control over the foreign relations of the Federal Republic try which was immeasureably stronger after the War than and its capacity to enter into international agreements. An before-economically, militarily, and politically. All the Allied High Commission replaced the military govern­ other countries including Britain and France had suffered ments. Analogous arrangements were made by the Soviets enormous losses during the War, and were soon to lose all in their zones. of their colonial possessions. The border between the two German states remained The role of the United States as one of the two hege­ fairly open in the first few years of their existence. In Berlin monial powers in Germany and Europe began to crystalize there was complete fteedom of movement between East and even before the Marshall Plan of 1947 and the founding of West until August l3, 1961, the day the Wall began to go NATO in 1949. As early as 1946, Secretary of State Byrnes up. It should also be remembered that in June 1953 workers gave a speech in Stuttgart in which he announced a signifi­ in East Berlin and throughout East Germany initiated an cant reversal of U.S. policy toward Germany. Economic re­ uprising which threatened to overthrow the East German covery rather than punishment was the new motto; repara­ regime, until the uprising was crushed by the Soviet forces. tions out of ongoing production had to stop immediately. This happened three years before similar uprisings in Poland The Soviets, on the other hand, enforced their reparation and Hungary in 1956, and fifteen years before Dubcek's rise demands in East Germany for many years to come. They, as to power in Prague in 1968. In none of these cases did the well as Britain and France, also dismantled machinery and West risk an intervention. This can be seen as a tacit agree­ other industrial equipment in their zones of occupation. ment between the two Superpowers to respect each other's Under the combined pressure of striking Germany workers and a disapproving U.S. government, Britain and France had to discontinue this policy. In other words, the Soviet Union sought an The United States also took a leading role in forging first affirmation of the division of Germany the American and British zones and then all three Western zones into an economic unit in 1947-48. A drastic currency and Europe, as soon as it became apparent reform was pushed through in 1948, which proved to be the that West Germany could not be prevented turning point in West Germany's economic recovery. from joining the Western alliance, not even Finally, the German states in the three zones were given a mandate to form a federal government on the basis of a new by an offer of German unification. constitution. This led to the enactment of the Basic Law 8 DUKE LAW MAGAZINE

over its domestic and foreign affairs. " This statement, how­ Khrushchev reminded the Western powers ever, is subject to important restrictions laid down elsewhere of the fact that they were in Berlin by in the treaty. These provisions are pertinent to the question of German unification, and I will return to them shortly. virtue of an agreement with the Soviets Once the formation of a separate West German state and rather than as a result of military action. its integration into the Western alliance had become a fait accompli, the Soviet Union could do nothing but accord East Germany an analogous status of ostensible sovereignty sphere of interest in Europe, as they were established at the and integration into the Warsaw Pact, which it did in 1955. end of World War II. The Soviets immediately went one step further though. In the late 1940s, the United States had articulated its They recognized the Federal Republic and established diplo­ policy of containment to the effect that the Soviet Union matic relations with the West German state. A correspond­ should not be allowed to expand any further in Europe; that ing step with respect to the German Democratic Republic is, it should be prevented from expansion beyond the line it ("G.D.R.") was taken by the three Western powers seven­ had reached in Germany, Czechoslovakia and Hungary as a teen years later, in 1972. result of World War II. The flip side of this coin obviously In other words, the Soviet Union sought an affirmation was that within its realm in Eastern Europe the Soviet of the division of Germany and Europe, as soon as it be­ Union was free to exercise its form of hegemony. To be came apparent that West Germany could not be prevented sure, Secretary of State John Foster Dulles proclaimed a from joining the Western alliance, not even by an offer of policy of roll-back rather than containment. But when the German unification. The stability of the status quo, how­ events in East Germany, Poland, and Hungary in 1953 and ever, was constantly threatened as long as the people in the 1956 seemed to call for an application of his policy, he did G.D.R were able to move to West Germany and did so in not practice it. He knew well enough that the national in­ great numbers. This happened throughout the fifties. The terest of the United States did not justifY an intervention, G.D.R. tried to stop this exodus at the border to West Ger­ when this might have led to a third world war. A roll-back many in the second half of the fifties. But this measure re­ of sons occurred only in one European country: Austria. mained ineffective, because East Germans could go to East But Austria was a special case; here the Soviets and the Berlin, then move freely to West Berlin and take a plane United States, Britain, and France agreed in 1955 on a mu­ from there to West Germany. This prompted Khrushchev tual withdrawal and a neutral status. Stalin had suggested a to issue a Berlin ultimatum in 1958 demanding drastic similar arrangement for Germany in 1952: a Germany uni­ changes in the status of West Berlin including a withdrawal fied with its neutrality secured by a small German army, but of the Western forces from the city. Khrushchev reminded no foreign troops permined on its territory. The United the Western powers of the fact that they were in Berlin by States, backed by its allies, and Adenauer, backed by the virtue of an agreement with the Soviets rather than as a re­ majority of West Germans, rejected this proposal. The idea sult of military action. Claiming fundamental breaches of of a unified, neutralized, and re-armed Germany appeared this agreement, the Soviets attempted to rescind it. horrifYing to Adenauer as well as to the Western allies. They The West, led by the United States, weathered this sec­ preferred the process of West Germany's integration into ond Berlin crisis fairly well. One of its better moves was to the Western alliance to continue. In 1952 (at the time of point out to the other side that a rescission of the agreement Stalin's proposal) this process had just begun. West Ger­ providing for the presence of Western forces in Berlin many and France, together with Italy, Belgium, the Nether­ would inevitably call for Soviet withdrawal from certain East lands, and Luxemburg, formed the European Coal & Steel German territories. As you will remember, these territories Community, the forerunner of the more comprehensive Economic Community established in 1957-58. The plan for a European Defense Community was launched. After its After 1961) Germans in West Germany, failure in 1954, West Germany and Italy were admitted to realizing that others would not do the job NATO membership to enable West Germany to re-arm under allied control. In this context in 1955 the Occupa­ for them, for the first time began discuss­ tion Statute of 1949 was repealed and the Allied High ing seriously what they themselves could Commission dissolved on the basis of a treaty which the do to ease the consequences of the division Federal Republic concluded with Britain, France, and the United States. This treaty also provided that "the Federal ofBerlin and Germany. Republic shall have the full authority of a sovereign state VOL U ME 9. NO . 1 9

1970s. This included the making of considerable payments ... the Berlin agreement of 1971 contains and the rendition of aid to Poland, Czechoslovakia, and unambiguous statements reaffirming the East Germany. In a closely coordinated action together with West Germany's overture to the East, the United States, rights and responsibilities which the four Britain and France negotiated an agreement with the Soviets powers derived from Germany's defeat in 1971 which provided greatly improved guarantees for and Allied occupation. Berlin.

Normative Data had originally been occupied by British and American Closer analysis of some of the legal instruments men­ troops and were turned over to the Soviets in exchange for tioned earlier will help to assess Germany's present legal sta­ the Western sectors of Berlin. Thus the two sides found tus. The Declaration of] une 1945 by which the govern­ themselves deadlocked over Berlin, for the second time since ments of the four occupation powers assumed supreme au­ World War II. thority with respect to Germany, to be exercised jointly in It was in this situation, with the flow of East Germans to matters affecting Germany as a whole, has not lost its legal the West reaching new heights, that the East German Com­ effect. To be sure, the machinery created for the exercise of munists developed their plan of a Wall in Berlin and of for­ joint authority, the Allied Control Council, ceased to func­ tified, tightly controlled borders with West Germany. It tion in 1948 when the Soviets withdrew from it at the onset seems that the Soviet leadership and Communist leaders in of the first Berlin crisis. But the four powers have always East European countries were shocked when they were con­ been careful not to relinquish their supreme authority in sulted about these plans. It also seems that the Soviets with­ matters affecting Germany as a whole. Also they have not held their approval for quite some time and finally gave it given up their rights as occupation powers in Berlin. but reluctantly. When the plans were carried out beginning When the two German states were formed in 1949, the on August 13, 1961, the United States and its allies again three Western powers approved the West German constitu­ forewent even the slightest anempt at intervention. Argu­ tion, the Basic Law, not without reservation. The German ably, the risk this time would have been smaller and more drafters of the constitution were determined to include Ber­ controllable than in 1953 and 1956 with the uprisings in lin as a state in the Federal Republic of Germany. The text East Germany, Poland, and Hungary. Also the legal basis of the constitution expressed this intention quite clearly. for an intervention was arguably stronger, because the four­ The pertinent provisions, however, were suspended by the power regime in Berlin was at stake. But it had become Western powers when their Military Governors decreed that painfully clear during the second Berlin crisis that the legal Berlin was permitted only to delegate representatives with­ guarantees for West Berlin's viability were far from being out voting rights to the legislature in Bonn and that the fed­ satisfactoty. The Western representatives at the War and eral authorities shall not govern Berlin. Furthermore, the post-War meetings with the Soviets at which the status of Occupation Statute of 1949 reserved control over foreign Germany and Berlin was determined had failed to work out relations and Germany as a whole to the occupation powers. sufficient guarantees. The Soviets retained their corresponding rights when they After 1961, Germans in West Germany, realizing that allowed the formation of the G.D.R. in 1949. others would not do the job for them, for the first time be­ As mentioned before, a treaty went into effect in 1955 gan discussing seriously what they themselves could do to which purported to establish West Germany as a sovereign ease the consequences of the division of Berlin and Ger­ state. This Convention on Relations between the Three many. Obviously, negotiations with the Soviets, other East­ Powers and the Federal Republic of Germany, however, also European countries, and with the authorities in East Berlin provides, in Article 2, that the three powers "retain the were necessary to accomplish this. Certain extreme Cold rights and the responsibilities, heretofore exercised or held War positions, including the West German government's by them, relating to Berlin and to Germany as a whole in- claim to be the only legitimate representative of the German people, had to be given up. Also the existing borders in Eastern Europe had to be recognized as inviolable. After The Berlin agreement of 1971 reaffirmed many years of sometimes acrimonious domestic debate, and the position of the three Western allies that difficult international negotiations, West Germany con­ their ('sectors do not belong to the Federal cluded a series of treaties with the Soviet Union, Poland, Czechoslovakia and East Germany providing for the nor­ Republic and shall not be governed by it. " malization of their relationships in the first half of the 10 D U K E LAW MAG A Z I N E

close to eighty million people representing an economic ... it is hard to believe that many non­ power unmatched by any European nation. Even though Germans are really enthusiastic about the President Bush and other officeholders in the West have announced that they are not troubled by this prospect, this prospect of a united Germany with close is hardly the prevailing sentiment. to eighty million people representing an There are, however, certain normative data which leave economic power unmatched by any little, if any room for the American president or his counter­ partS in Britain and France to take a stand against German European nation. unification. Thereby the three powers would not only dis­ avow policies they have professed to pursue for decades, but they would breach an international treaty. The Convention cluding the reunification of Germany." on Relations between the Federal Republic and the Three When the Soviets also undertook to terminate their oc­ Powers provides in Article 7 that "the parties to this Con­ cupation regime in 1955, their reserved powers were less vention will cooperate so as to realize with peaceful means clearly stated. In the immediately following period, espe­ their common goal: A united Germany with a constitution cially during the second Berlin crisis of 1958-61, it seemed similar to that of the Federal Republic and integrated into sometimes from certain pronouncements by the Soviet the European community." Clearly, this provision was a Union, as if the Soviets had virtually abandoned their rights Western concession to Adenauer who was under constant and responsibilities in Germany. But the Berlin agreement attack in the early- and mid-fifties from the Social Demo­ of 1971 contains unambiguous statements reaffirming the crats and others who charged him with an intention to rights and responsibilities which the four powers derived abandon German unity in favor of integration of West Ger­ from Germany's defeat and Allied occupation. It is not un­ many into the Western alliance. This included challenges of reasonable to assume that the Soviet leadership in 1971, un­ serious violations of the West German constitution. like Khrushchev in the late fifties, considered it to be in Similar charges were made when the Social-Liberal coali­ their interest to retain a legal claim to a certain control over tion normalized the relations with Eastern Europe and East Germany as a whole and Berlin, even though that required Germany in the seventies. Various cases involving constitu­ recognition of corresponding powers of the Western allies. tional challenges against this so-called Ostpolitik were It is also not unreasonable to surmise that the present brought in the Federal Constitutional Court in West Ger­ Soviet leadership is well aware of the existence of these mu­ many. The court held that German unification is constitu­ tual rights and responsibilities held by them and the three tionally mandated and an abandonment of this goal would Western powers. Repeated statements by Soviet representa­ be unconstitutional. tives to the effect that German unification is not on the These normative data may be considered by many as less agenda, must be seen in light of these normative data. welcome than the ones discussed before. It must also be re­ German unification would seem to be by definition a membered that, as long as no peace treaty has been con­ matter affecting Germany as a whole. Indeed, the 1955 cluded, the status of former German territories in the East is Convention makes that explicit. Thus the two German not finally settled. Neither of the two German governments, states have no legal power to act on this matter. Rather, this which have recognized the new borders as inviolable, can power is held jointly by the Soviet Union and the three legally act for Germany as a whole. This does of course not Western allies. Likewise, the status of Berlin is controlled, as preclude a political commitment of the two governments a matter of law, not by German authorities, but by the four and all responsible political actors in Germany to a recogni­ powers. The Berlin agreement of 1971 reaffirmed the posi­ tion of the Polish border as final. Such commitment is abso­ tion of the three Western allies that their "sectors do not lutely necessary for stability and peace in Europe. belong to the Federal Republic and shall not be governed by It.. " These normative data are probably found to be some­ what reassuring not only by the Soviets. Germany's Euro­ Neither of the two German governments) pean neighbors may welcome them too; and so may people which have recognized the new borders as in the United States. Our rhetoric in the West has for de­ cades supported the West German claim to unification. But inViolable, can legally act for Germany as it is hard to believe that many non-Germans are really en­ a whole. thusiastic about the prospect of a united Germany with VOL U M E 9 . NO.1 II

the United States and the Soviet Union. Maybe NATO and The containment and control of the Warsaw Pact can be transformed into such a system. Germany s military power will have to be As I see it, the most important power structure today which could help to keep events in Central and Eastern Eu­ accomplished by an all-European security rope under control is the European Community. West Ger­ system guaranteed by the United States many is fIrmly imbedded in the Community. It is a little and the Soviet Union. known fact that even East Germany has had free access to the Common Market from its inception in 1958. Austria is now seeking membership in spite of its internationally guar­ Power Structure anteed status of neutrality. East European countries like Given the mixed messages coming from the normative Czechoslovakia, Hungary, and probably soon Poland, are data and given the highly volatile present situation in Cen­ eager to associate themselves with the Community. The tral and Eastern Europe, it is more than a little unsettling to process of intensifIed integration expressed in catchword observe the change in power structures in Europe. The fIxa­ fashion by the concept of "Europe 1992" is well under way. tion of both Superpowers on military strategic thinking and The only element of retardation at the moment is Margaret their resulting arms race has in the end not strengthened Thatcher, but she may not last much longer. The Europe­ their power bases. It has undermined them and has led to ans, but also her own people, seem to be losing patience the decline of Soviet-American hegemony in Europe. Nei­ with her. ther of the Superpowers can control events in Europe nearly In Germany nobody in his right mind is opposed to to the same extent they could for forty years. Malta will not these processes. Continued German integration into the change that; Malta is not Yalta. Community is not only an often repeated policy of all major While the decline of Soviet hegemony is all too obvious, political groups. The vast majority of Germans is certainly America's position in the Western world today is also vety behind it. They do not want a German "Sonderweg." This, different from the dominant role it played for decades. The together with the remnants of four-power control over Ger­ trade imbalance and the budget defIcit resulting in a con­ many as a whole and over Berlin, would seem to be the best stantly increasing U.S. government debt are some of the in­ guarantee against unchecked developments in undesirable dicators of change. The recent rift with West Germany over directions in the region. nuclear and chemical weapons located on German territoty Of course, once unifIcation occurs with four-power ap­ and over other issues is another indicator. proval, this will mean the end of four-power rights and NATO was designed, in the words of its fIrst Secretary responsibilities in the exercise of "Supreme Authority" in General, "to keep the Russians out of Western Europe, to Germany. Also, given Germany's economic strength, it will keep the Americans in, and to keep the Germans down." inevitably playa key role in the Community, united or not. The organization has accomplished this triple purpose of But its neighbors will still be better off with Germany assuring American presence and hegemony along with within, rather than without, the Community. A return to double containment vis-a-vis the Soviets and the Germans fully sovereign nation-states in Europe could spell disaster. extremely well for an amazingly long post-War period. But We see already that with the decline of Superpower this period has ended, and NATO has never been developed hegemony in Europe many of the national and ethnic con­ into more than a military alliance, as was originally envis­ flicts dating back to the pre-World War I era are re-emerg­ aged. It is probably too late for that now. ing. While the improvement of economic conditions may In the long run NATO will not be viable as a military help to ease these conflicts, it will take a lot of diplomatic alliance. In view of the changes in the East, the public in our sophistication and ingenuity, and it will take statecraft to Western democracies will not support an organization keep them from erupting. Thus, diplomatic skills and state­ which has lost most of its purposes. The containment and craft are in great demand at a time when our Western televi­ control of Germany's military power will have to be accom­ sion-democracies are poorly prepared to cultivate these vir­ plished by an all-European security system guaranteed by tues. We have reason to be concerned. Nostra res agitur. 12 D U K E L A W MAG A Z 1 N E The Hushed Case Against a Supretne Court Appointtnent: Judge Parker's "New South " Constitutional Jurisprudence, 1925-1933

Peter G. Fish

e was hailed as an exponent of the "New South" when nominated in 1930 by President Herbert H Hoover for Associate Justice of the United States Supreme Court.! But Judge John]. Parker of the United States Court of Appeals for the Fourth Circuit soon found himself politically marooned between the Scylla of alleged racism and the Charybdis of a reputed anti-labor predisposi­ tion.2 In a Senate confirmation process run amuck, Parker's judicial record compiled after his appointment to the appel­ late bench in late 1925 received little attention-with the exception of United Mine Workers ofAmerica v. Red Jacket Comolidated Coal and Coke CO.3 wherein lay putative evi­ dence of his anti-labor proclivities. From that single case and from his 1920 North Carolina gubernatorial campaign speeches, critics transmogrified the jurist; he personified al­ ternatively the consummate nullifier of the legal rights of blacks and labor and the defender of white supremacy and private properry.4 Yet Parker on the bench proved no zealous proponent of either racism or private property, although few cases involv­ ing black Americans reached the circuit court in the 1920s and early 1930s. Instead, the judge, then in his forties, de­ veloped and expounded an authentic "New South" consti­ tutional jurisprudence which implicitly nurtured the eco­ nomic conditions necessary for southern growth.5 lt was a jurisprudence which might well have given pause to some of his confirmation opponents who hailed from rival sections of the nation. Their apprehensions, if they existed, re­ mained unarticulated. Instead, they attacked the Supreme Court nominee on more politically efficacious grounds. Professor of Political Science and Law. Duke University. Professor Fish, who has As an appellate court judge, Parker was no advocate of taught at Duke since 1969, served as a lay member of the United States Circuit economic laissez-faire. Rather, he labored to unleash state Judge Nomination Commission, Panel for the Fourth Circuit (1977-79). At the Law police power as a vehicle for realizing economic develop­ School, he has taught a seminar on the politics of judicial adminstration and a ment in the southern states, a topic previously considered in research tutorial on the development of the United States Courts of the Fourth the Duke Law Magazine. 6 Nor did he, unlike southern tra­ Circuit: 1789-1958. This article is a section of a larger work, Fish, Torchbearer ditionalists, perceive of local or even regional economic de­ velopment as a means of protecting white supremacy from for Pre-New Deal Southern Economic Development: Judge John J. Parker of the erosion by broad nationalistic tides responsive to national U.S. Court of Appeals for the Fourth Circuit in AN UNCERTAIN TRADITION: economic and political integration.? Such regional chauvin­ CONSTITUTIONALISM AND THE HISTORY OF THE SOUTH 253 (K Hall & J. Ely, ists regarded national regulation of economic life as a pre­ Jr. eds. 1989), a portion of which was published as Fish, Judge Parker and the cursor to centralized control of race relations in the South. Public Service State, DUKE L. MAG., Summer 1985, at 37. They and their predecessors railed against federal judges and federal courts seen as diabolical instruments of northern VOL U M E 9 , NO. J 13

economic and political ex­ opinion on the other side of the proposition," he con­ ploitation of the South.s fessed, "but I found that it would not write that way."12 Parker stood apart from A disappointed Parker held that "the deposit balance in these sometimes deafening favor of the insolvent bank should be applied to checks as and demagogic critics of the Federal Reserve Bank contends."13 The decision effec­ the national judiciary. He tively accorded a preferential claim on deposit reserves of was an ardent judicial na­ failed banks to remote users of the Federal Reserve clearing­ tionalist, but one with a house system over claims of local depositors and other credi­ pronounced regional bias,9 tors of such insolvent financial institutions. especially on matters relat­ Southern Utilities. Parker had previously affirmed the ing to southern economic exercise of governmental power as against the right of pri­ life. vate property asserted by timber owners in a case wherein national and regional interests in developing Great Smoky Balancing Law and Policy Mountains National Park had been complementary. 14 Fed­ Cases which pitted na­ eral condemnation of the Duke-owned Southern Power tional interests against Company's right-of-way across Nantahala National Forest, southern regional interests however, encouraged close scrutiny of this interference with tested Parker's fidelity to the keystone of the region's economic infrastructure. As the the tenets of judicial utility's brief stressed, the electric power generated by the nationalism. Activism on company went out "to cities and towns, cotton mills, and the part of the federal gov­ other industrial enterprises, and to the public generally," ernment could promote and the transmission lines in question also "constitute[dl the development of an eco­ sole connecting link between the system of the defendant nomically viable"New and that of the Georgia Railway & Power Company and ... South." On the other the system of other power companies lying to the south of Judge John J. Parker following his ap­ hand, Hamiltonian initia­ the defendant's system." To sever vital connections between pointment in 1925 by President Calvin tives from Washington power grids in the region would cause irreparable loss to the Coolidge to the United States Court of could have the opposite public. IS Appeals for the Fourth Circuit shown effect. 10 How to temper Parker agreed with counsel's assessment. The land in holding acane , agift from Amos M. Stack, national policies injurious question had been obtained for laudable conservation pur­ his former law partner in Monroe, NC. to regional growth per- poses which hardly suffered from rights-of-way enjoyed by plexed Parker in cases in­ public utilities. But interference with their lines would cer­ volving national banking, electric power and railroad freight tainly "involve inconvenience with loss to the public and rate policies. needless expense to the government."16 Furthermore, Con­ Federal Reserve Bank of Richmond. Parker as lawyer gress had never intended to endow the Department of Agri­ had represented southern country banks then warring culture with power "to condemn the rights-of-way of rail­ against the Federal Reserve's "par clearance" system. In the way and power companies for forestry purposes merely be­ United States Supreme Court he had defeated the central cause they happen to be situated on forest lands acquired by bank's attempt to establish a national clearinghouse the government."I? system whereby onerous exchange charges were imposed Intrastate Freight Rates. Freight rates established by on checks tendered at Reserve Bank counters by country the Interstate Commerce Commission had far-reaching im­ banks. II Once on the bench, Parker implicitly questioned plications for southern life. The Lee-fixed rates consti­ the Reserve system's centralizing tendencies as a develop­ tuted a national internal tariff system perceived as respon­ ment antithetical to southern interests. Yet, he proved sible for perpetuating the South's colonial economy and unable to curb the Federal Reserve Bank of Richmond. "I have been sweating for a week over the opinion" in Federal Reserve Bank v. Early, he wrote. Afrer reading" all He was an ardent judicial nationalist} of the cases cited and a great many others and ... looking at but one with a pronounced regional the case from every angle," he acknowledged that the national clearinghouse's claim to the deposit balance of bias} espeCially on matters relating to one of South Carolina's numerous insolvent banking southern economic life. institutions seemed unassailable. "I started out to write an 14 D U K E LAW MAG A Z I N E

Southern Coal Industry How to temper national policies injurious On no other subject did the Fourth Circuit confront to regional growth perplexed Parker in greater national-regional tensions than in cases which related cases involving national banking, electric to the labor intensive bituminous coal industry of the south­ ern Appalachians. And, in no other area did a policy-based power and railroad freight rate policies. pro-South jurisprudence so strikingly emerge during the decade before the New Deal than it did in defense of the threatened coal industry. At stake were that industry's trans­ subordinating it to the economic hegemony of the northern portation costs regulated by the Le.e.; its labor costs de­ metropole.18 pendent on avoidance of high uniform and nationwide To be sure, Parker affirmed exercises of Congress' power union wage scales; and its price-fixing powers. Favorable to regulate interstate commerce in order to protect that resolution of these three key issues meant apparent preserva­ commerce from harmful consequences flowing from tion of regionally important mining enterprises. To the fed­ intrastate activities. 19 But like Chief Justice William Howard eral court in the 1920s came southern coal operators to re­ Taft, he saw a clear distinction between freight shipped in late doleful tales of their bare survival, tales which became intrastate commerce and that carried in interstate com­ the focus of the court's attention. merce.20 The distinction became significant for local con­ The trial and appellate judges in the circuit heard about sumers, shippers, and producers because classification of intersectional economic strife that soared to new heights in commerce as intrastate meant subjecting goods used within the Harding-Coolidge era. Coal shortages and escalating the several states to rates set by state agencies at levels often prices during World War I had induced a boom in bitumi­ below those authorized by the Le.e.21 In an opinion which nous coal and related development of new mines in the Parker deemed among his "most important," he rejected a southern Appalachians. With demobilization and enhanced regional rail carrier's contention that petroleum shipped in­ competition from petroleum and natural gas, the coal in­ terstate by sea to a tank storage depot at the port of dustry confronted vast surplus capacity, an inelastic demand Wilmington and thereafter distributed in railroad tank cars for its product, and slipping prices and profits. 26 Operator to some 20,000 Tar Heel customer constituted "continuous survival in this laissez-faire jungle meant cuts in either or shipments in interstate commerce. "22 Instead, he held in both key factors which determined coal costs to the con­ Atlantic Coast Line Railroad and Seaboard Air Line Railway sumer: transportation and labor. Co. v. Standard Oil Company ofNew Jersey that at Lake Cargo Coal Case. Anchor Coal Co. v. United States Wilmington the oil and gasoline "came to rest and lost their called into question Le.e.-6xed coal freight rates and the identity in complainant's storage tanks and were mingled consequences for the region's economy of such nationally with its general stock."23 Consequently, shipments from the established charges. 27 The suit by southern operators to en­ North Carolina port constituted "independent movements" join rates on their coal shipped into the lucrative Great within the meaning of a Brandeis-coined Supreme Court Lakes industrial market reflected acute intra-industry and test. The applicable rates became those approved by the intersectional rivalry for dominance in "Lake Cargo Coal." North Carolina Corporation Commission for intrastate Northern operators in the Central Competitive Field shipments rather than the higher Le.e.-fixed interstate stretching from western Pennsylvania into Illinois enjoyed a rates.24 Le.e. rates and orders encountered similar judicial natural advantage in their geographical proximity to hostility in another case, but several which portended either industrial markets, an advantage offset by prevailing union lower costs or enhanced intra-regional competition or both wage scales which raised their production costs to levels ex­ were approved.25 ceeding those of the southern operators.28 At the critical decisional points where federal judges en­ Intoads made by southern bituminous in Great Lakes joyed discretion, Parker's regional proclivities surfaced. markets evoked protests ftom northern operators and action His decision-making approach involved the parsing of often by the Le.e. At issue were the "Lake Cargo Coal" rates complex facts of cases wherein national power was arrayed charged by railroads. Rates on a per ton basis from nearby against southern regional interests in economic viability. northern 6elds ranged below those charged remote produc­ That same approach also manifested reasoned exposition of ers in southern West Virginia, Kentucky, and Tennessee. statutes and constitutional doctrines, and a pragmatic, if Higher total transportation costs, even if much lower per usually implicit, policy determination compatible with the mile, required that southern operators achieve the smallest tenets of the "New South" creed. It was an approach which possible per ton rate differential ftom mine to market. Be­ suffused judicial resolution of conflicts involving the south­ tween mid-I922 and mid-I92? the differential between the ern bituminous coal industry. benchmark Pittsburgh and Kanawha rates stood at twenty- VOLUME 9, NO . 1 15

fixing the differential which was to prevail between the As an isolated and low wage labor mar­ two fields and that the Commission based its action ket, the South enjoyed a competitive edge upon the shift of tonnage from the northern to the southern field and the industrial conditions resulting in common markets against products therefrom.34 from regions with higher labor costs Wielding of the rate-foong power to correct displacement of and/or more capital intensive industries. northern coal in the Lake Cargo market was not, he de­ clared in echoing McClintic, a regulation of rates, but rather five cents. But in August 1927 the northern carriers, with a regulation of "industrial conditions under the guise of Lee permission, reduced their rates by twenty cents, regulating rates." The Commission had considered produc­ thereby increasing the differential to forty-five cents. South­ tion and employment as well as transportation in "an effort ern railroads retaliated. They lowered their rates by the to equalize industrial conditions or offset economic advan­ same amount and restored the former twenty-five cent dif­ tages [of the South]. "35 ferential. Appeals for protection by the northern carriers In reaching its rate decision, the Lec had relied on the won an Lee order directing their sectional competitors to 1925 Hoch-Smith Resolution, a farm relief measure, which suspend the unauthorized twenty cent rate reduction and to authorized the agency to adjust rates in order to correct justifY its reinstatement.29 those found "unjust, unreasonable, unjustly discriminatory, When their justification failed to satisfy the commission, or unduly preferential, thereby imposing undue burdens, or southern coalmen, led by Wall Street lawyer John W. Davis, giving undue advantage as between the various localities and went into the United States Court for the Southern District parts of the country. "36 Parker held in the Lake Cargo Coal of West Virginia to enjoin enforcement of the agency's rate Rate case, the federal judiciary's first interpretation of the suspension order and justification requirement. 3DThree days resolution, that the statutory language constituted "no more of what Parker termed a "strenuous hearing" was followed than a general declaration that freight rates shall be adjusted in March 1928 by his selection as author of the three-judge in such a way as to provide the country with an adequate district court's opinion.31 The Lake Cargo Coal Rate opinion system of transportation." Surely Congress had never in­ reflected his conviction that the Lee's rate suspension or­ tended "by this language to create in the Commission an der presented "a question fraught ... with the gravest conse­ economic dictatorship over the various sections of the coun­ quences to the future of the country, if the power asserted ... try, with power to kill or make alive." Today, the Lee can be sustained." Answering this question required an ac­ took aim at southern coal. Tomorrow, he warned, its target tivist approach. It would be necessary, he stated at the out­ could be "cotton manufacturing, ... fruit growing, ... furni­ set, "to look behind" the Lee's conclusions on the rea­ ture manufacturing, in short, ... every branch ofindustry."37 sonability of rates "and ascertain exactly what it is that it has If the Lee had exceeded its rate-fixing powers, could done, and upon what facts and upon the application of Congress remedy the deficiency by empowering the regula­ what principles it has arrived at its conclusion. "32 What the tory agency to weigh intersectional economic conditions in agency had done seemed self-evident to resident District setting rail tariffs? Probably not. In an obiter-dictum, Parker Judge George W. McClintic. It had played sectional favor­ invoked the Supreme Court's regionally beneficial decision ites, affording "a 'special providence' for the Ohio and Pitts­ in Hammer v. Dagenhart, 38 a case that had arisen out of the burgh coal operators, rather than thinking of the consumers North Carolina textile industry. The decade-old precedent in the north-western states or the southern carriers or coal operators. "33 The immediate question before the court involved statu­ The violent and emotion-laden labor con- tory construction. Had Congress empowered the agency to make national economic policies? Quoting voluminously flict in the bituminous coal fields ofsouth ­ from commission reports reciting the collapsed state of the ern West Virginia, dramatized for modern beleaguered bituminous industry in the North, Parker movie audiences by director John Sayles thought it in his 1987pro-unionfilm "Matewan, " perfectly evident ... that, in reducing the rates from the northern field, and in directing the cancellation of the reached the Fourth Circuit court sixty reduction from the southern field, the Commission years earlier. was primarily concerned, not in fixing rates, but in 16 D U K E LAW MAG A Z [ N E

The violent and emotion­ laden labor conflict in the bituminous coal fields of southern West Virginia, dramatized for modern movie audiences by director John Sayles in his 1987 pro­ union film "Matewan,"43 reached the Fourth Circuit court sixty years earlier. The primary issue in United Mine Workers ofAmerica v. Red Jacket Consolidated Coal and Coke Co. involved appli­ cation of the Sherman Anti­ Trust Act to John L. Lewis' union then seeking to orga­ A northbound Norfolk and Western freight in the "Lake Cargo " trade, hauling bituminous coal from mines in southern West Virginia, steams near Circleville, Ohio, thirty miles south of Columbus, on October 5, 1933. nize the West Virginia min- ers. 44 The Act's application hinged, in turn, on discovery solidly supported his contention that Congress "could not of a relationship between the UMWA's organizational strat­ give the Commission power to fix rates to equalize industrial egies and interstate commerce. conditions." Regulation of production lay within the police Resolution of the jurisdictional question reflected powers of the states, a power reserved to them by the Tenth Parker's fideliry to judicial nationalism. He acknowledged Amendment. Futhermore, Parker suggested, but did not Chief Justice Taft's holding in the First Coronado case decide, that such a rate-fixing basis likely violated the due wherein Taft declared "that coal mining is not commerce, process clause of the Fifth Amendment in that the rates pro­ and that ordinarily interference with coal mining could not mulgated would necessarily be "unreasonable and constitute be said to be interference with interstate commerce." But an unprecedented interference with the industrial condi­ Parker entertained "no doubt that ... interference with coal tions of the country."39 Dixie's hardpressed coal industry mining did interfere with interstate commerce in coal as a would be especially disadvantaged by the national regulatory natural and logical consequence."45 The Taft Court had said agency's rate-making policies. as much in its Second Coronado decision.46 The rule of that Red Jacket. New South industries seemingly needed case, not that of First Coronado, applied to Red Jacket be­ protection not only from unfavorable freight rates set by the cause the union, by calling a strike in order to organize the Lee, but also from the imposition of national labor stan­ bituminous coal fields of West Virginia, surely "intended to dards. As an isolated and low wage labor market, the South interfere with the shipment of coal in interstate commerce" enjoyed a competitive edge in common markets against even in the absence of any evidence of interference with the products from regions with higher labor costs and/or more actual transportation of coal. 47 capital intensive industries.40 Standardized national wages The facts spoke for themselves. The 316 coal companies and working conditions threatened this regional advantage, joined as parries in the RedJacketcase produced 40,000,000 thereby inflicting economic losses on both southern produc­ tons a year, over ninery percent of which went into inter­ ers and their labor forces.41 The United Mine Workers of state commerce. "Interference with the production of these America (UMWA), in its quest for monopoly control over mines," he reasoned, "would necessarily interfere with inter­ the price of all coal mine labor, posed just such a threat to state commerce in coal to a substantial degree. " This result regional economic development. Without judicial interven­ suggested a conspiratorial intent, within the scope of the tion to foil unionization, an advocate for the southern op­ Act, to prevent interstate shipments of southern coal. "It erators predicted, "the Union will succeed in the end in was only as the coal entered into interstate commerce," forcing ... non-union mined coal of West Virginia out of Parker noted, "that it became a factor in the price and af­ competition in the markets of the country with the coal fected defendants in their wage negotiations with the union produced by Union operators and miners under Union operators. And in time of strike, it was only as it moved in rules and regulations and sold at prices determined by the interstate commerce that it relieved the coal scarcity and in­ Union."42 terfered with the strike. "48 VOL U M E 9. NO. 1 17

Once Parker's broad conception of national commerce Hitchman barred union organizers from peacefully per­ power had brought the UMWA's local organizing activities suading workers under "yellow dog" contracts to break their within the co un's federal question jurisdiction, he consid­ contracts by joining the union while remaining in their ered the scope of freedom to be accorded the union in its employer's work force. It also prevented union agents from efforts to penetrate and organize the West Virginia coal merely persuading employees to join up and, honoring their miners employed under anti-union "yellow dog" contracts.49 contracts, leave their employment in order to strike. This Resolution of this issue depended on the nature of the anti-enticement provision was augmented by another pre­ venting persuasion of "any of plaintiffs employees to refuse or fail to perform their duties as such."55 Hitchman and its progeny, including Bittner, effectively walled off non-union workers in the southern bituminous fields from the blan­ dishments of national union organizers. UMWA effortS to distinguish Hitchman by confining its prohibitions to union-organizing strategies involving vio­ lence, fraud and/or deceit, factors present in Hitchman but I N 0 I not in Red Jacket, foundered on the sweeping language of the Hitchman decree which restrained even "peaceful per­ suasion."56 Nor did section 20 of the 1914 Clayton Act ap­ plyY That section prohibited issuance of injunctions against nonviolent persuasion tactics used by unions. Duplex Print­ ing Press Co. v. Deering had made clear, however, that this N T U C K statutory restraint on federal judicial power applied only to conflicts berween an employer and his own employees or --C. I O. Ry . IHockingValley Ry.1 __ N. &W. Ry. prospective employees. 58 It did not protect a remote third -.- Connecting lines I R GIN I A party union's peaceful intervention on behalf of the em­ Routes of the intersectional "Lake Cargo" bituminous coal trade from southern West ployer's workers and all other similarly situated employees. Virginia to Lake Erie ports via the Chesapeake and Ohio Railway Co .. Hocking Valley Chief Justice T afr there afrer modified Duplex in American Railway (consolidated with C. & O. Ry. in 1930). and the Norfolkand Western Railway Steel Foundries v. T ri-City Central Trades Council to permit Co. as well as the C. & O. and N. & W. rail link with Chicago. peaceful persuasion when the union involved was a geo­ graphically local one. 59 union and on Supreme Court precedents. The UMWA, The UMWA fit within neither the Duplex nor T ri-City headquartered in Indianapolis in the midst of the Central interpretation of the Clayton Act's protective shield. With a Competitive Field, clearly acted as a remote third party in­ membership generously pegged by Parker at 475,000 and terloper whenever its organizers appeared in West Virginia. with local aifliiates spanning the North American continent, Thus Parker correctly regarded the conflict not as one be­ the union bore precious little resemblance to the geographi­ rween that state's coal operators "and their [non-union] em­ cally confined Tri-City Central Trades Council composed ployees over wages, hours of labor, and other causes, but of thirty-seven crafr unions in a cluster of three Illinois [one] ... berween them as non-union operators and the inter­ national union which is seeking to unionize their mines. "50 Hitchman Coal and Coke Co. v. Mitchel~ 5 1 a case origin­ Once Parker's broad conception of ating in the Fourth Circuit and decided by the High Court national commerce power had brought in 1917, together with that circuit's 1926 decision in Bittner v. West Virginia-Pittsburgh Coal CO. 52 controlled the extent the Wl1WA 's local organizing activities of permissible strategies available to unions such as the within the court's federal question juris­ UMWA Both precedents advanced injunctions as remedies diction, he considered the scope offree­ for protecting non-union or "yellow dog" contracts under the constitutionally based "liberty of contract" doctrine pre­ dom to be accorded the union in its efforts viously approved by the Supreme Court in Adair v. United to penetrate and organize the West Vir­ States and Coppage v. Kansas.53 Language of the Hitchman decree had pervaded the Bittner opinion authored by ginia coal miners employed under anti­ Parker's senior colleague, Edmund Waddill, Jr., as well as union "yellow dog " contracts. the trial court's rendition of RedJacket. 54 18 D UK E L AW M A G A Z [ N E

ties depended on offering their soft coal at marginally lower He held that union agents might peace­ market prices which, in turn, rested partially on wage scales fidly persuade non-union employees to remaining below uniform industry-wide scales prescribed by the UMWA and on the enforcement of "yellow-dog" con­ leave their employment and join the union tracts as a defense against injurious strikes intended to pro­ in order to go on strike and to refrain mote the union's goals. from entering the employee's workplace Appalachian Coals, Inc. Notwithstanding protection accorded the faltering soft coal industry by the Lake Cargo during a strike against it. and Red Jacket decisions, conditions in the southern coalfields went from bad to worse as the Great Depression began. Shrinking markets, sinking prices, and demoraliza­ towns. 6O And the UMWA's goals were different too. It tion of an ever smaller labor force caused desperate operators sought not standardization of wages and working conditions in Virginia, West Virginia, Kentucky, and Tennessee to es­ in a confined locality, but their standardization on a na­ tablish a sales cartel early in 1932. Appalachian Coals, Inc. tional industry-wide basis. 61 consisted of 137 producers who, in 1929, mined fifty-four 1m pelled by advice received from dying colleague John percent of all bituminous extracted in the southern fields C. Rose and by his own latent sympathy for working men and twelve percent of total soft coal produced east of the and women which had emerged in political appeals made in Mississippi River. Their sales predominated in competitive the 1920 gubernatorial campaign as well as in judicial opin­ markets from the Carolinas and Georgia westward to Indi­ ions, Parker limited the Hitchman doctrine.62 He held that ana, southern Michigan, and the Great Lakes region. Once union agents might peacefully persuade non-union employ­ the cartel had been created, the Department of] ustice acted ees to leave their employment and join the union in order to to enjoin the agency's operations under the Sherman Anti­ go on strike and to refrain from entering the employee's Trust Act. 66 workplace during a strike against it. What the Union could Following hearings on United States v. Appalachian Coals, not do was, Inc. before a three-judge district court wholly composed of circuit judges, Parker expressed doubts about the erstwhile to approach a company's employees, working under a contract not to join the union while remaining in the company's service, and induce them, in violation of their contracts, to join the union and go on strike for I the purpose of forcing the company to recognize the I 1:,2 , I H" mil es union or of impairing its power of production. 63 IL ______"Hitchman," Parker declared, "is conclusive of the point in­ volved here." But the sole "point involved" was actual or attempted contract-breaking, an unlawful act which only occurred when an employee joined the union while remain­ ing in the employer's workforce. RedJacket 's decree, as he stated, was "certainly not so broad as that of the decree ap­ proved by the Supreme Court in Hitchman Coal and Coke Co. v. Mitchell ... which also enjoined [any] interference with the contract by means of peaceful persuasion."64 Red Jacket reflected a cautious balancing of the compet­ ing interests of a nationwide labor union and a regional in­ dustry within the rigid confines of the labor law current at the time. 65 Parker weighed organized labor's interest in com­ municating its message to non-union miners, recruiting them into union ranks, organizing the mines, thereafter de­ veloping a collective bargaining relationship conducive to improved standardized wages and working conditions for individual southern coal miners. At the same time, he took account of the interests of the bituminous operators. Their Mines of Red Jacket Consolidated Coal and Coke Company, ThackerCoalfield , Mingo regionally important production and employment capabili- County, West Virginia. Mines of the Red Jacket Company are denoted by dots. V O L U M E 9, NO, J 19

cartel's capacity for success in stabilizing coal pricesY Yet, he "started into the case with the feeling that the combin­ Parker's constitutional jurisprudence ation ought to be upheld and that it could be upheld under developed from 1925 to 1933 was a defen­ the decisions in the Steel and Harvester cases, "68 The associa­ tion, he reasoned, had "been acting fairly and openly, in an sive jUrisprudence endowed with a high, if attempt to organize the coal industry and to relieve the de­ rarely articulated, policy content. plorable conditions resulting from over-expansion, destruc­ tive competition, wasteful trade practices, and the inroads of competing industries,"69 had a laudable purpose and, as Parker had shown, no capac­ However justifiable the combination, hopes for eluding ity for becoming a monopolistic menace. The Court took the Anri-Trust Act were soon dashed by close examination cognizance of the reality that "when industry is grievously of Supreme Court precedents and of the decision in United hurt, when producing concerns fail, when unemployment States v, American Can Co. handed down by his late appeals mounts and communities dependent upon profitable pro­ court colleague, Judge John C. Rose.70 The then federal dis­ duction are prostrated, the wells of commerce go dry. "74 trict judge in Maryland used the Supreme Court's "rule of The Sherman Act did not mandate that outcome. reason" standard to distinguish monopolies arising out of Reversal by the High Court both bemused and pleased natural and legitimate business expansion from those caused Parker. The Court had reached its conclusion, he noted, by by unnatural and illegitimate acquisitions intended to re- overruling "some of its former decisions, which, of course, that Court has a right to do." That its policy-actuated hold­ ing overturned his own opinion did not make him "feel at Parker adjudicated appeals that enabled all bad for I think that I would have decided the case exactly him to help shape economic life from as the Supreme Court did if! had not felt bound by its West Virginia and Maryland to South former decisions."75 Carolina and from the Appalachians to Conclusion the Atlantic. John]. Parker's performance, especially in cases involv­ ing important questions of southern regional economic de­ velopment, spawned a "New South" constitutional jurispru­ strain interstate trade or to create monopolies,?1Appalachian dence that required a delicate balancing of national and re­ Coals Inc. clearly fell into the latter category. Agency mem­ gional interests. He was constrained by the abilities of ag­ bers, independent coal operators who together controlled "a grieved parties to litigate and appeal, by the reach of federal substantial part of the trade," had agreed to fix uniform sell­ jurisdiction, by existing judicial precedents, and by the cir­ ing prices in order to eliminate competition among them­ cumscribed position of a judge on a intermediate appellate selves. Such an agreement suggested a plan to fix monopoly court. Nevertheless, Parker adjudicated appeals that enabled prices in consuming markets "forbidden by the Sherman him to help shape economic life from West Virginia and Act."72 Maryland to South Carolina and from the Appalachians to Parker regretted the conclusion. "We sympathize with the Atlantic. the plight of those engaged in the coal industry, whether as Conflicts between state and national powers or between operators or as miners," he wrote, "but we have no option regional entrepreneurs and national regulations detrimental but to declare the law as we find it. We cannot repeal acts of Congress nor can we overrule decisions of the Supreme Emerging in the twilight ofan expiring Court interpreting them." Quite possibly a cooperative coal marketing agency offered the sole hope for relieving the economic order, this sometimes national industry's economic distress. That remedy, however, was and sometimes regional constitutionalism one "which addresses itself to the lawmaking branch of the was marked by a combination of realism government. "73 The Supreme Court, not Congress, soon acted to protect and optimism, by a sober reflection on the a major regional industry. A week prior to Franklin painfUl economic plight of the region, and Roosevelt's first inauguration, ChiefJustice Hughes held that an unreasonable restraint of trade did not arise from by eternal optimism about the future of mere establishment of a cooperative enterprise which af­ the South 's human and natural resources. fected market conditions, especially when that combination 20 DUKE LAW MAGAZINE

to southern economic interests tested the judge. Aware that 'On Henry W . Grady and the "New South" creed, see D. GRANTHAM, the South stood outside the nation's economic mainstream, SOUTHERN PROGRESSIVISM: THE RECONCILIATION OF PROGRESS AND TRADITION xvi (1983). Parker labored to clothe such regional interests with judicial 6F ish, judge Parker and The Public Service Stall, DUKE L. MAG., Summer protection. But he evaluated national regulations in terms of 1985, at 37. specific economic costs and benefits which the region de­ 'Scheiber, Federalism, The Southern Regional Economy, and Public Policy Since 1865, in AMBIVALENT LEGACY: A LEGAL HISTORY OF THE SOUTH, rived from them. Ulterior motives associated with preserva­ 73-80 (D. Bodenhamer &J. Ely, Jr. eds. 1984). tion of the racial status quo did not figure in his assessments. 'Id. at 91-93. In fact, his lone pre-nomination judicial opinion which ' Parker, The Federal jurisdiction and Recent Attacks Upon It, 18 ABA J. 435 (I 932); Hewlett v. Schadel, 68 F.2d 502 (4rh Cir. 1934) (wherein Parker praised spoke directly to the race question actually threatened the the nationalizing virtues of general federal common law then current under Swift racial status quo at its most sensitive points, intermarriage v. Tyson, 16 Pet. 1, 18 (1842)), rev'd, Erie R.R. Co. v. Tompkins, 304 U.S. 64 and residential living parterns?6 (I 938); United Srares v. Lindgren, 28 F.2d 725 (4rh Cir. 1928) (holding thar the The financially pressed southern bituminous coal indus­ Merchanr Marine Oones) Act of 1920 (533, ch. 250, 4 1 srat. 1007) pre-empted Virginia's wrongful dearh starue), affd, Lindgren, Adm'r v. Unired Stares, 281 try received his special solicitude. Elements of dual federal­ U.S. 38 (1929); Ferris v. Wilbur, 27 F.2d 262, 265 (4th Cir. 1928) (upholding ism and Marshallian nationalism combined in his adjudica­ U.S. Navy's storage of high explosives in close proximiry to privare properry); tion of these coal cases to produce a pragmatic, policy-ori­ Unired Stares v. Tyler, 33 F.2d 724 (4th Cir. 1929), affd, 281 U.S. 497 (1929) (upholding constitutionaliry of federal estare taX). ented, and regionally biased southern constitutional juris­ IOScheiber, supra n.7, at 85-86, 92. prudence as proffered in the Lake Cargo case and as realized II Farmers' & MerchantS' Bank of Monroe, N.C. v. Federal Reserve Bank of in the controversial Red Jacket decision. The larter invoked a Richmond, Va., 262 U.S. 651 (1923). "Letter from John J. Parker to Elliotr Northcorr (Dec. 21,1928) (regarding broad nationalistic conception of the commerce power com­ Federal Reserve Bank of Richmond, Va. v. Early, 30 F.2d 198 (4th Cir. 1929)) bined with a balanced consideration of union-operator rela­ Oohn J. Parker Papers, box 18, Southern Historical ManuscriptS Collections, tionships then controlled by a series of Supreme Court deci­ Universiry of North Carolina, Chapel Hill, N.C.) sions based on the "liberty of contract" doctrine. Although IlFederal Reserve Bank, 30 F.2d ar 199, affd, Early v. Federal Reserve Bank of Richmond, Va., 281 U.S. 84 (1929) (Holmes, J. ); see also Craven Chemical Co. v. favorable to the operators, his RedJacketdecision necessarily Federal Reserve Bank of Richmond, Va., 18 F.2d 711 (4th Cir. 1927) (holding the protected the jobs of southern miners while at the same time Federal Reserve Bank nor negligent in handling a check drawn on a bank which according some union access to employees working under failed during transit of the check). I4Suncresr Lumber Co. v. North Carolina Parks Commission, 30 F.2d 121 "yellow-dog" contracts. (W.D.N.C. 1929). Parker's constitutional jurisprudence developed from I'Transcripr of Record, Answer of AppeUee, Case No. 2764, Unired Srates v. 1925 to 1933 was a defensive jurisprudence endowed with a Southern Power Co., 31 F.2d 852, 9, 17 (4th Cir. 1929), filed Aug. 17, 1928. 16Soltthern Power Co., 31 F.2d at 856. high, if rarely articulated, policy content. Emerging in the I-Letter from John J. Parker to William C. Coleman (Mar. 12, 1929) (Parker twilight of an expiring economic order, this sometimes na­ Papers, supra n.12, box 18); Set Southern Power Co., 31 F.2d ar 856. tional and sometimes regional constitutionalism was marked I'SuWoodward, Orginsofthe New South: 1877-1913 in 9 A HISTORY OF by a combination of realism and optimism, by a sober re­ THE SOUTH 312-17, ch. 11 generally, (W. Srephenson & E. Coulter eds. 1971). "United Mine Workers of America v. Red Jacker Conso!. Coal & Coke Co., flection on the painful economic plight of the region, and 18 F.2d 839 (4rh Cir. 1927) (applying Sherman Ami-Trusr Act to union by eternal optimism about the future of the South's human interference with local coal mining, the ourput of which was intended for interstate and natural resources. Neither these considerations nor their shipment). lOAriantic Coasr Line R.R. Co. v. Standard Oil Co., 275 U.S. 257, 272 (1927) policy consequences could have been received with equa­ (wherein Taft, c.J. approvingly nored Parker's disrincrion between intra- and nimity by his critics who espoused the interests of rival geo­ intersrare commerce drawn in the related case of Arlantic Coasr Line R.R. Co. & graphic sections. 77 A pall of silence enveloped this eminently Seaboard Air Line Ry. Co. v. Srandard Oil Co., 12 F.2d 541 (4th Cir. 1926)). "Su Houston, Easr & WesrTexas Ry. Co. v. Unired Srares, (The Shreveport rational, albeit politically untenable, grounds for opposing Case), 234 U.S. 342 (1914) (Hughes, J.). elevation of a "New South" jurist to the Supreme Court. Far "Untided memorandum, circa Mar. 1930 (Parker Papers, mpra n.12, box 6); more simple and effective was it in 1930 to assail Judge Atlantic Coast Line R.R., 12 F.2d at 541 (memorandum on cases nos. 1441-42); id. Parker as a "white supremacist" and sworn enemy of labor. (Parker Papers, supra n.12, box 48). B12 F.2d 541-44 (4th Cir. 1926), cm. denied, 273 U.S. 712 (1926). 14 Id. ar 545-46 (1926) (quoring Brandeis. J. in Balrimore & Ohio Southwesrern I The President's News Conferena ofMarch 21, 1930: Nomination ofa Supreme R.R. Co. v. Sertle, 260 U.S. 166, 173-74 (1922) thar: COllrtjustice in PUBLIC PAPERS OF THE PRESIDENTS: HERBERT rhe reshipment, although immediare, may be an independent intrastare move­ HOOVER, 1930,98-99 (1976); From the ''New SOltth" to the Supreme COltrt, 105 ment. The insrances are many where a local shipment follows quickly upon an LITERARY DIGEST 12 (1930). intersrare shipment and yer is nor to be deemed parr of ir, even though some 'See WatSon, Jr., The Deftatofjudge Parker: A Smdy in Pressure Groups and further shipment was contemplared when the original movement began.) Politics, in 50 MISS. VALLEY HIST. REV. 213-34 (1963). "United Srares v. Munson S.S. Line, 37 F.2d 681 (4rh Cir. 1930) (holding '18 F.2d 839 (4th Cir. 1927); President Calvin Coolidge nominated Parker on thar the sreamship line need nor file itS rare schedule wirh the I.c.c. because the Oct. 3, 1925 (recess); U.S. REGISTER OF THE DEPARTMENT OF JUSTICE line's relarionships with connecting rail carriers excluded "a common management 18 (1927); the President again nominated Parker on Dec. 8, 1925; CONGRES­ for continuous carriage or shipment within the meaning of the Act of Feb. 4, SIONAL REC.. 69th Cong., 1st sess., 1925,67, pt. 1: 499; the Senate confirmed 1887, § 1,24 Srar. 379" (Interstare Commerce Acr), thereby obviating any Parker on Dec. 14, 1925; see idat p. 769. possibiliry of monopolistic price-fIxing by a railroad endowed with power over 'See Watson, supra n.2. water carriers and rheir rares), affd, 283 U.S. 43 (J 930) (Hughes, c.J.)); Chandler VOLUME 9. NO.1 21

v. Pennsylvania R.R. Co .• 11 F.2d 39 (4rh Cir. 1926) (upholding LC.C. interstare 2492-2503. supra n.45 . freighr rares on potatoes shipped intrasrare from points in Virginia to ports in thar "Redjacket, 18 F.2d at 845. stare and clearly destined for foreign export); Atlantic Coast Line R.R. Co. v. ..Id. at 845-46.848-49. United Stares. 48 F.2d 239 (4th Cir. 1931) (affirming LC.C. orders requiring 50 Id. ar 841. regional carriers to grant lower through rome rates to shipments carried by one line 51 245 U.S. 229 (1917). rro'ingMitchell v. Hitchman Coal & Coke Co .• 214 in competition with another under the common control of the regional carriers). F.2d 685 (4th Cir. 1914) (Pritchard, J.). 26M. BARATZ. THE UNION AND THE COAL INDUSTRY 33 (1955); H. 52 15 F.2d 652 (4th Cir. 1926). MANSFIELD. THE LAKE CARGO COAL RATE CONTROVERSY: A 53208 U.S. 161 (1908); 236 U.S. I (1915). STUDY IN GOVERNMENTAL ADJUSTMENT OF A SECTIONAL 5< Bitrner Y. Wesr Virginia-Pirrsburgh Coal Co .• 15 F.2d 652, 657 (4th Cir. DISPUTE 21-27 (1932). 1926); Redjacket, 18 F.2d at 842. 2725 F.2d 462 (S.D.W.va. 1928). 55 Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229. 261-62 (1917) "Su M. BARATZ. supra n.26. at 43; J. LAMBIE, FROM MINES TO (enjoining the union "from interfering or attempting to interfere with plaintiffs MARKET: A HISTORY OF COAL TRANSPORTATION ON THE employees so as knowingly and willfully to bring about the breaking by plaintiff's NORFOLK AND WESTERN RAILWAY 14 (1954); D. CORBIN, LIFE, employees, present and future. of their [non-union) conuacts of service known to WORK AND REBELLION IN THE COALFIELDS: THE SOUTHERN the defendants to exisr. "). WESTVIRGINlAMINERS. 1880-19224 (1981). 56Su Brieffor Appellants, Redjacket, 18 F.2d 839.190 (4th Cir. 1927), cases 29H. MANSFIELD. supra n.26, ar 264. nos. 2492-2503 filed Oct. 4, 1926. 3OAnchor Coal Co. v. United States. 25 F.2d 462, 463. 469-70 (S.D. W.va. 57 Act of Oct. 25. 1914, ch. 323. § 20. 38 Stat. 730, construd in Red jacket, 18 1928). F.2d at 849. 31 Lerter from John J. Parker to Edmund Waddill. Jr. (Mar. 23. 1928) (Parker 58254 U.S. 443, 471 (1921). Papers, supra n.12, box 18); Letter from John J. Parker to Edmund Waddill, Jr. 59257 U.S. 184.209-10 (1921). (Mar. 26, 1928) (Parker Papers, supran .12. box 18). 6JJld.; Redjacket, 18 F. 2d at 840, 844, 849; American Steel Foundries v. Tri­ 32Anchor Coa4 25 F.2d at 464. City Central Trades Council. 257 U.S. 184, 195 (1921). 33Letter from George W. McClintic to John J. Parker (Mar. 27, 1928) (Parker 6lRedjacket, 18 F.2d at 844. Papers. supra n.12, box 56). 6lLetter from John C. Rose to John J. Parker (Mar. 12, 1927) (Parker Papers, 34 Anchor Coa4 25 F.2d ar 470. supra n.12, box 17); Greensboro [N.C.) Daily News. June 27, 1920. at 2 (assailing 35Id. at 471-72. fiUlure ofNorrh Carolina to enact a workman's compensation law); Charlorte 36Anchor Coa4 25 F.2d at 473-74 (quoting Act ofJan. 30, 1925, ch. 120.43 [N.C.) Observer, Oct. 30, 1920, at 3 (attacking absence of state labor protection Star. 802. amending Act ofFeb. 28,1920 (Esch-Cummins). ch. 91. 41 Star. 456). laws for women and children in mills and factories); id. Apr. 18, 1920. at 8 (stating 37 Id. at 474. rhat "laboring men have a righr to organize ...• [and) collectively. to enter into 38247 U.S. 251 (1918). agreements with employers. "); see Manly v. Hood. 37 F .2d 212 (4th Cir. 1930); 39Anchor Coa4 25 F.2d at 472, acc'dAnn Arbor R.R. Co. v. United States. 281 George A Fuller Co. v. Brown. 15 F.2d 672 (4th Cir. 1926). U.S. 658 (1930) (VanDevanter. J.). 63RedJacket, 18 F.2d at 849. 4OG. WRIGHT, OLD SOUTH. NEW SOUTH: REVOLUTIONS IN THE fAld.. cm. denied, 275 U.S. 536 (1927). SOUTHERN ECONOMY SINCE THE CIVIL WAR 163 (1986). 65 See Bedford Stone Co. v. Journeyman Stone-Cutters. 274 U.S. 37 (1927). 4ISU S. WOOD, CONSTITUTIONAL POLITICS IN THE PROGRES­ 66United States v. Appalachian Coals Inc., I F. Supp. 339, 339-40 (W.va. SIVE ERA: CHILD LABOR AND THE LAW (1968). 1932) suAcr ofJuly 2.1890, ch. 647. § 4, 26 Star. 209. 42Brief for Appellees at 234. United Mine Workers of America v. Red Jacker 67 Appalachian Coals. Inc .• I F. Supp. ar 339, 348. Consol. Coal & Coke Co .• 18 F.2d 839 (4th Cir. 1927). ftled Oct. 13. 1926. Case 68Letter from John J. Parker to Morris A Soper and Elliott Northcott (Sept. 13. Nos. 2492-2503. 1932) (Parker Papers, supra n.12. box 22) (referring to United States v. Unired 43Reviewed by Vincent Canby. N.Y. Times. Aug. 28. 1987, §3 at 3; M. States Steel Co., 251 U.S. 417 (1920) and Unired Stares v. International BUCKLEY, FILMS IN REVIEW, Dec. 1987 at 38. 614; see also J. SAYLES. Harvester, 274 U.S. 693 (1927), both of which held thar mere size did not THINKING IN PICTURES: THE MAKING OF THE MOVIE constitute a violation of the Sherman Act). "MATEWAN" (1987). 69Appalachian Coals. Inc .• 1 F. Supp. at 341. « United Mine Workers of America v. Red Jacket Consol. Coal & Coke Co., 7°1d. at 343-48 (referring to United States v. American Can Co., 230 F. 859 18 F.2d 839. 843-46 (4th Cir. 1927). (D. Md. 1916)). 45United Mine Workers of America v. Coronado Coal Co. (First Coronado 71 United States v. American Can Co., 230 F. 859, 902 (D. Md. 1916). Case), 259 U.S. 344.407-08 (1922) (citing Hammer v. Dagenhart. 247 U.S. 251, 72Appalachian Coals. Inc .• I F. Supp. ar 348. 272 (1918) . Parker Stated that 73 !d. at 349. coal mining is not intersrate commerce. and the power of Congress does not 74Appalachian Coals. Inc., 288 U.S. 344. 372-74 (1933). exrend to its regulation as such .... Obstruction to coal mining is nor a direct 75Letter from John J. Parker to Edwin Yates Webb (Mar. 20, 1933) (Parker obstruction to interstate commerce in coal, although it, of course, may affecr it Papers. supran.12, box 23). by reducing the amount of coal to be carried in that commerce.) 76In City of Richmond v. Deans, 37 F.2d 712 (1930) Parker wrOte the court's ChiefJusrice Tafr. however, had assetted that "a direct. material and substantial per curiam opinion holding unconstitutional under the equal protection clause of effect" on price or supply of coal or a subjective intent to control rhose variables the Fourteenth Amendment a municipal ordinance barring occupancy of would rransform a local and indirect obstrucrion into an interstate and direct one. residential dwellings "where the majority of residences on such street are occupied Id. at 411. On Parker's interpretation ofTafr's opinion. see memorandum on cases by those with whom such person is forbidden to intermarty" as stipulated in nos. 2492-2503. Unired Mine Workers of America v. Red Jacker Consol. Coal & Virginia's Racial Integrity Act of 1924. The Supreme Court denied the City's Coke Co., 18 F.2d 839. 5 (4th Cir. 1927) (Parker Papers. supra n.38, box 48); Stt petition for a writ of certiorari. 281 U.S. 704 (1930). See Parker's Memorandum Norfolk & Western Ry. Co. v. Unired Srates, 52 F.2d 967, 971 (W.D.Va. 1931) on case no. 2900. City of Richmond v. Deans, 37 F.2d 712 (1930) (Parker Papers. (Parker J. srating that "coal mining is a business entirely separate and distinct from supra n.12. box 48); Loving v. Virginia, 388 U.S. 1 (1967) (holding unconstitu­ the business of rransportation .... It has been expressly held thar the mining of tional the state's anti-miscengenation statute, a revised version of the Act to coal is not commerce even though the coal when mined is to be used or Preserve Racial Intergrity of Mar. 20. 1923. 1924 Va. Acts 534, at issue in the uansporred in commerce .... "), affd, 287 U.S. 134 (1932) (Roberts, J.). Deans case). 46Coronado Coal Co. v. United Mine Workers of America (Second Coronado n See Letter from William Edwin Chilton, Jr. to Lee S. Overman (Apr. 23. Case). 268 U.S. 295, 309-10 (1925). 1930) Oohn J. Parker Confirmation File, SEN71 B-A3, uay 14. Records of the 47 Redjacket, 18 F.2d 839. 845 (4th Cir. 1927); memorandum on cases nos. U.S. Senate, RG 46. National Archives. Washington, D.C.). 22 DUKE LAW MAGAZfNE

Capital Gains and the Laffer Curve The Uneasy Case for a lower Capital Gains Tax

Richard L. Schmalbeck

campaign. The controversy has centered primarily around the revenue effects of the proposal, and on its impact on the distribution of the income tax burden. On the revenue question, the Administration has claimed that its current proposal would actually increase overall tax revenue by $12.5 billion over the next five fiscal years. Others-most promi­ nently, the Joint Committee on Taxation of the U.S. Con­ gress-have contested those claims, asserting that the pro­ posed 30% reduction will instead reduce revenues derived from taxation of capital gains by $11.4 billion. The burden question seems less a matter of factual dis­ pute than one of tastes as to the ideal distribution of tax bur­ dens. Both sides agree generally that relatively high-income taxpayers will enjoy most of the immediate dollar benefits of a capital gains cut. Supporters of the bill point out that middle-income taxpayers have capital gains, too. This is true enough, but hardly convincing evidence that the benefits of a rate cut on capital gains would be wide-spread. Taxpayers have gains on capital assets because they have capital in the first place. And the more they have of it, the more they stand to gain from lowering the tax rate on capital gains. Put in this simple way, the issue seems to reduce to a po­ Professor of Law, Duke University. Professor Schmalbeck has been amember of the liticallitmus test. If one prefers as progressive a tax as is po­ litically possible, and wants to be sure that revenues are not Duke faculty since 1980, and teaches and writes in the areas of federal taxation and compromised, one could hardly support a capital gains rate law and economics. He gratefully acknowledges his colleagues, Jean Adams, cut. In a simpler world, this would probably be the case. Charles Clotfelter, Jerome Culp, and Walter Dellinger for their helpful comments on The point of this article, however, is to argue that, taking an earlier draff of this paper. into consideration a number of features that are firmly en­ trenched in the Internal Revenue Code, it may make sense thiS article goes to press, Congress is again consider­ to support a capital gains tax rate cut regardless of one's gen­ ing the Administration's proposals to lower, by as eral political orientation. A much as 30%, the federal income tax rate applied Underlying this argument is a judgment that the current to gains on the sale of certain capital assets. A similar pro­ rates on capital gains are highly inefficient. Lowering those posallast year appeared to enjoy majority support in both rates seems likely to produce considerable welfare gains, at houses of Congress, but was blocked by end-of-session pro­ little cost in tax revenue. Since those welfare improvements cedural maneuvers in the Senate. Favorable rates on capital will be enjoyed mainly by high-income taxpayers, it seems gains were, of course, a fixture of the pre-1986 tax land­ appropriate that those taxpayers be targeted for slightly scape. In the Tax Reform Act of that year, however, Con­ higher rates of tax on ordinary income. Because elimination gress, acting in the name of tax reform, repealed the provi­ of inefficiencies increases total welfare, the benefits of a capi­ sions that created those favorable rates. tal gains rate cut coupled with an increase in ordinary in­ The proposal to restore favorable treatment of capital come tax rates can be allocated in such a way that all taxpay­ gains is intensely controversial. It was, in fact, one of very ers are better off: higher-income taxpayers would pay more few tax issues debated seriously in the 1988 presidential actual dollars of tax, but enjoy enhanced total utility because VOL U M E 9 , NO . I 23

of efficiency gains that affect the returns they enjoy on their investments; middle-and lower-income taxpayers would benefit from either a reduction in the federal budget deficit, or from additional government expenditures financed by the

Cf.) extra taxes collected from higher-income taxpayers. w => Z The notion that all taxpayers would benefit from tax w > w NOtmaIZone changes whose most dramatic feature is a reduction in capi­ ~ tal gains tax rates faced mainly by the wealthy, is a notion that is widely thought to have been discredited by the rate cuts enacted by the Economic Recovery Tax Act of 1981. That Act is (accurately) thought to have had much to do '------, with the huge escalation in budget deficits in the early tMAX 1980s, and (inaccurately) thought to have proven that cut­ TAX RATES ting tax rates inevitably reduces revenues. The inaccuracy of consumption of the taxed commodities ... frequently afford a this latter piece of the conventional economic wisdom is an smaller revenue to government than what might be drawn important element in the argument for lower capital gains from more moderate taxes.'" rates, and is considered extensively in the first part of this Though that is as clear a statement of the Laffer curve article. The second section considers several of the promi­ phenomenon as one could ask for, Arthur Laffer and the nent arguments against reducing capital gains tax rates. A other proponents of this theory nevertheless deserve credit brief concluding section conveys my summary views nar­ (or perhaps blame) for bringing the theory into the public rowly favoring paired enactment of a capital gains rate cut, policy debate over the structure of the American tax system. and a modest increase in the ordinary income tax rates af­ It does not take great imagination to see the political appeal fecting high-income taxpayers. of Laffer curves: the possibility that the government could increase revenue by cutting taxes presents the kind of have­ Efficiency and the Capital Gains Tax your-cake-and-eat-it-too public policy choice that seems to Illustrating some aspects of the inefficiencies of applying enjoy enduring popularity with the ever-optimistic Ameri­ high tax rates to capital gains is facilitated by reference to can electorate. the "Laffer curve." A Laffer curve expresses geometrically the Of course, this possibility is only available to a govern­ relationship between tax rates and total revenues raised by ment that has previously adopted tax rates that are in the those rates. The most enthusiastic proponents of Laffer prohibitive zone of the curve. Since that is a highly irrational curve analysis typically portray the curve as having an ap­ position for a government to be in, one would think that proximately parabolic shape, as shown in the accompanying that was generally unlikely. But it has been politically useful figure. From this curve, it can be seen that as rates rise from for Laffer curve proponents to tolerate a considerable zero, revenues rise as well. They may rise approximately pro­ fuzziness about where the prohibitive zone begins, what portionately at first (so that, for example, a doubling of rates point on the curve the tax system occupies at any particular may almost double revenues), but the proportionality of the time, and even what tax rate is being used for this purpose curve tapers off as it rises, so that any particular percentage (highest marginal rate? average marginal rate? average effec­ increase in rates is associated with a smaller percentage in­ tive rate? etc.) The significant revenue losses associated with crease in revenue. Tax rate increases are, in other words, the 1981 Reagan tax cuts are at least partly attributable to a subject to a diminishing returns phenomenon. At some failure to address these questions; accounts differ on the point (shown as point A on the figure), the marginal rev­ question of whether that failure was due primarily to the enue derived from additional increases in tax rates becomes unfortunately Panglossian outlook at the top of that Admin­ negative. The range of the curve to the right of point A is istration, or cynicism in the ranks. sometimes referred to as the "prohibitive zone," reflecting The unfortunate revenue effects of the 1981 Act rightly the presumption that lower tax rates are preferable to higher counsel a certain caution in the use of Laffer curve analysis. ones, if revenue is constant. It does not altogether discredit that form of analysis, how­ The Laffer curve has never been taken very seriously by ever. What must be kept in mind is that not all taxes-or all the economics establishment. This disdain is not, I think, parts of a single system, such as the federal income tax­ based so much on the view that the theory is flawed as it is respond in the same way to changes in rates. A fundamental on the view that the theory lacks novelty. After all, even rule of taxation is that all taxes tend to discourage, at the Adam Smith noted-at least in the special context of selec­ margin, the activities burdened by the tax. This is, indeed, tive excise taxes-that high tax rates, "by diminishing the the phenomenon that explains why Laffer curves are shaped 24 DUKE LAWMAGAZINE

as they are: as rates increase, they tend in themselves to de­ crease the size of the tax base against which they are assessed. One finds in the capital gains area yet As revenue is plotted along a Laffer curve, an increasing rate another instance of the ubiquitous sec­ is multiplied by a decreasing tax base; sooner or later, in­ creases in the rate will in most cases be overwhelmed by de­ ond-best phenomenon: if the tax system creases in the tax base. But the points at which that happens makes one important departure from a may vary widely among different taxes. Within the income theoretically perfect set of rules, the sec­ tax, it seems very likely that different types of income, and perhaps different types of taxpayers, will display differing ond-best set of rules may be a set that diminishing returns effects in the face of increasing tax rates. includes another, offsetting departure The sensitivity to rate change is to some degree measur­ able, and is referred to in the public finance literature as "tax from the perfect rule set. elasticity." A tax, or a part of a tax, that exhibits relatively large changes in the tax base in response to relatively small Many of these rules may be the result of poor Congres­ changes in the rate is said to be "highly elastic." Tax elastic­ sional policy choices. The income tax would be more con­ ity is undoubtedly influenced by a number of factors, but ceptually sound, and fairer, ifit taxed inflation-adjusted an­ surely one of the most important of these is the availability nual asset appreciation, or, at a minimum, if it taxed accu­ of avoidance opportunities. Where tax avoidance is easy and mulated asset appreciation at death. But the Congressional inexpensive, even relatively low rates may induce enough decisions in this area have for the most part been quite de­ avoidance behavior to place the tax rate in a Laffer curve liberate, in response to perceived limitations of administra­ prohibitive zone. Conversely, where avoidance is difficult, tion, or perhaps in some cases to lobbying muscle. The expensive, or both, even a very high tax rate can be well shortcomings of these decisions have been asserted forcefully within the normal (i.e., revenue-increasing) zone of the ap­ and repeatedly, yet the basic rules enumerated above have propriate Laffer curve. remained in place. At some point, it makes sense simply to In the American tax system, the tax on gains from the accept them as they are, and change those things that seem sale of capital assets is surely easier to avoid than taxes on both in need of, and amenable to, change. most other types of income. To begin with, our system gen­ The tax rates on capital gains are surely amenable to erally taxes only realized gains-those that can be computed change. Most tax policy analysts would argue, however, that on the sale or exchange of the asset. The realization event is conforming the ordinary and capital gain rates in the 1986 normally within the complete discretion of the taxpayer. Tax Reform Act was an important stroke of tax reform­ Further, many things that the tax law might be able to treat one that should be retained. This view is based on the as taxable events are not so treated. Gifts of property are not understanding-with which I generally concur-that capi­ realization events, nor are transfers of property at death. tal gain income is conceptually indistinguishable from any Further, a number of transactions that are considered to be other kind of income, and that comprehensive taxation realization events are nevertheless not recognized for tax therefore requires that it be taxed just like any other income, purposes, including dispositions of property in connection lest unnecessary distortions be introduced into the income with a divorce, exchanges of like-kind property, and certain tax. transactions in which proceeds of a disposition of property The fallacy of this position is that it ignores the fact that are promptly re-invested in similar property. capital gains cannot, because of the deeply entrenched reali­ zation requirement, be treated similarly to ordinary income It does not take great imagination to see in any event. Congress decided in 1986 that it would tax certain realized capital gains as though they were ordinary the political appeal of Laffer curoes: the income. But all this accomplishes is a modest displacement possibility that the government could of the distortion: the distinction between capital gains and ordinary income has been mostly eliminated, but only at the increase revenue by cutting taxes pre­ cost of exacerbating the distinction (and distortion) between sents the kind of have-your-cake-and­ realized and unrealized gains. eat-it-too public policy choice that seems One thus finds in the capital gains area yet another in­ stance of the ubiquitous second-best phenomenon: if the tax to enjoy enduring popularity with the system makes one important departure from a theoretically ever-optimistic American electorate. perfect set of rules, the second-best set of rules may be a set that includes another, offsetting departure from the perfect VOL U M E 9 . NO. 1 25

rule set. 2 In the tax system (or indeed any complex rule sys­ made successful investments in growth stocks, and would tem), in other words, two wrongs may be the next-best now like to convert those assets into a down payment on a thing to a right. Examples in the tax area of the second-best house to accommodate his growing family. In each of these phenomenon may illustrate this point. If nation A were cases, if the disutility of avoiding the realization event that compelled by treaty to exempt from excise taxes all grain stands between the respective taxpayers and their goals be­ imported from nation B, then nation A's excise tax system comes large, they will presumably proceed toward their might produce less distortion if it exempted grain produced goals, adverse tax consequences notwithstanding. But some in other countries as well, even though the best system marginal taxpayers in these situations at any given time will would involve no grain exemptions at all. An actual example decide, at least partly under the influence of tax consider­ from our own tax system is the decision to impose a realiza­ ations, that they would be better off deferring their plans for tion requirement on the sale of publicly traded stocks and awhile, suffering some loss of utility in the meantime. bonds, rather than giving tax effect to the annual changes in Another scenario involves a simple desire for diversifica­ value of those securities. This choice is difficult to justify in tion-usually for the purpose of reducing risk. A may own a isolation, but becomes reasonable when the difficulties of large amount of the stock of one corporation, while B owns annual appraisal of other capital assets, such as land, are con­ a large amount of the stock of another firm in a different sidered. If the tax system must depart from the conceptually industry. Both taxpayers could diversify their portfolios by pure notion that wealth change yields income in the case of buying some of each other's stock. If the desire for diversifi­ land, then perhaps it should do so with respect to all capital cation is strong enough, they may proceed with that possi­ assets, as a second-best solution. bility. But, at the margin, at least some taxpayers who might Of course, the general theory of second-best does not wish to diversify will avoid or defer doing so, at least partly necessarily prove that any particular additional departure because of the adverse tax consequences. from an optimal tax structure will reduce distortion-the Both of these examples involve real losses of utility: per­ theory may only suggest that such an outcome is possible. mitting taxpayers to choose freely between consumption My argument is that if the realization requirement is taken and investment, and to take reasonable steps to control risk, as a given, then taxing realized gains at lower rates may contribute to welfare as a general matter. It might be well reduce the distortions induced by the realization thought that such a free choice is also important if capital is requirement. to be allocated efficiently among competing demands, but This is a difficult assertion to prove; indeed, I doubt that this is less clear. For the most part, it seems that the reduced any very rigorous proof of either the assertion or its contra­ liquidity caused by relatively high taxes on gains affects the diction is possible. I will not in any event attempt a proof ownership of assets, not their deployment. For example, a here. Rather, I will offer some anecdotal illustrations of the business may observe that its use of an asset is suboptimal. types of distortion that relatively high capital gains taxes Even if the gains tax discourages sale of that asset, it may be may induce, in the hope that the plausibility and generality possible in many cases to lease the asset to a user who can of those examples will be in themselves persuasive of my make that asset more productive. It is true that not all mar­ point. I will then offer some evidence of the inefficiency of kets are congenial to leasing, and the movement of some high capital gains taxes based on the revenue estimates asso­ assets from less to more productive uses may thus be im­ ciated with the Administration's proposals. peded by capital gains taxes. Nevertheless, it would appear The Nature of the Distortion. The principal distortion that the primary effects of relatively high taxes on gains are created by the combined effects of a realization requirement on the ownership issue rather than the deployment issue. and a relatively high tax on realized gains has to do with the There is at least one cost of illiquidity, however, that may decision to dispose of assets. 3 This is sometimes referred to implicate both the ownership and the deployment of assets. as the "lock-in" effect. Quite simply, it reduces the liquidity Individual taxpayer liquidity can be seen as a partial antidote of a taxpayer's store of wealth. One can imagine a number to a variety of forms of market failure that have their roots of ways in which illiquidity could adversely affect taxpayers' decision-making, resulting in lower utility for those taxpayers. One scenario would involve investors who may wish at . ..permitting taxpayers to choose freely some point to alter the relationship between their consump­ between consumption and investment, tion and investment activities. For example, A may be a and to take reasonable steps to control middle-aged taxpayer who finds she no longer needs or wants a large house, would prefer a smaller, less expensive risk, contribute to welfare as a general one, and would like to invest some part of the house's value matter. in common stocks.4 B may be a young professional who has 26 DUKE LAW MAGAZ I NE

in information costs or other transaction costs problems. A To return for a moment to the Laffer curve model, what scenario illustrating this would involve the supposition that the revenue estimates suggest is that, as to capital gains, the Farmer A has an opportunity to improve the output of his current rate structure puts the tax either into the prohibitive land, but requires capital to implement his idea. Farmer B zone (if the Administration estimates are accepted) or just to knows A to be trustworthy and of sound business judgment. the left of the prohibitive zone (if the Joint Committee esti­ B also has capital to invest in this project; but if that capital mates are accepted.) But it really doesn't matter which is the is currently invested in appreciated assets, B may be reluc­ case. Even if the Joint Committee's estimates are more accu­ tant to expose himself to tax by selling those assets to raise rate, capital gains tax rates are nevertheless well into the the needed capital. An economist might assume that if A's range within which it is necessary to impose much larger idea has value, an efficient credit market (yes, we're referring rates to produce relatively small increments of revenue, here to the American banking system) will supply the neces­ meanwhile increasing exponentially the excess burden of the sary capital. A more realistic account of this situation, how­ tax. It seems almost beyond dispute that Congress can find ever, would recognize that, at least as to relatively small some other, more efficient corner of the revenue system to transactions, the value of an idea may be swamped by the make up for any revenue lost. various transactions costs of getting financing to implement Long-term versus Short-term Elasticity. It is clear it, consisting largely of allocations of the salaries of loan of­ from the foregoing that the case for a lower capital gains rate ficers, credit investigators, bank examiners, deed recording depends in some part on the tax elasticity of capital gains officials, lawyers, and the like. realizations. One imaginable explanation for at least part of Excess Burden of the Capital Gains Tax. Public fi­ the elasticity of this curve is that taxpayers expect the tax nance economists refer to the cost of distortions induced by rates on capital gains to fluctuate, within some historical taxation, such as those described above, as the "excess bur­ range. In recent years the maximum rate on long-term capi­ den" of the tax. Minimizing the total excess burden of all tal gains has been as high as 35% and as low as 20%. If fluc­ taxes is obviously desirable, as long as that is reasonably con­ tuation within that range is anticipated, it would surely ex­ sistent with other tax policy goals, such as fairness, adminis­ acerbate the rate response; that is, it would, during the high­ trability, and the like. Although excess burden is extremely rate part of the cycle, make taxpayers even more reluctant difficult to measure, there are a few mathematical insights than otherwise to have realization events, and vice versa. about excess burden worth considering.s Within the param­ This would make the realization rate curve appear to be eters of standard public finance models, excess burden is even flatter (more elastic) than it would be in the face of thought to rise proportionally with the tax elasticity, and truly permanent rate changes. This complication has created proportionally with the square of the tax rate. With respect considerable difficulties for those who seek to measure the to capital gains taxation, the ease with which the tax can be revenue effects of capital gains tax rate changes, and prob­ avoided by retaining the asset in question makes it plausible ably accounts for much of the current controversy over those to assume that tax elasticity-and, hence, excess burden-is effects. high. This assumption is supported by substantial-though If the present rate structure were thought by taxpayers to not uncontroverted-empirical evidence; it is also reflected be truly permanent, or at least highly durable, it would un­ implicitly in both the Administration's and the Joint Com­ doubtedly make the realization rate curve steeper (less elas­ mittee's revenue estimates regarding the current capital gains tic), which would in turn reduce the inefficiencies associated tax reduction proposal. with capital gains taxes. The magnitude of the efficiency im­ Those revenue estimates, in fact, provide the best non­ provement is of course uncertain, and inherently difficult to technical explanation of the problem with the current capi­ estimate. I would argue that it is also irrelevant to the cur­ tal gains tax rate. Even accepting the Joint Committee's rent debate. Unless Congress were to propose (and a suffi­ more pessimistic view, cutting the capital gains rates by 30% cient number of states were to ratify) a constitutional would reduce total government revenues over the 1990-95 amendment on this question-a highly implausible event­ fiscal years by only $11.4 billion. That sounds like a lot of no Congress can effectively bind subsequent sessions to a revenue, but it really isn't: it is only about 3% of the total particular course of action, for capital gains taxes or any­ tax on capital gains that the government would collect ab­ thing else. It is quite routine for Congress to finish a major sent any change in rates. In other words, Congress is in a tax bill, pat itself on the back, and announce to constituents position to cut rates in this area by a percentage that is ten that it has finally fixed the tax system. It is equally routine times larger than the percentage revenue loss associated with for Congress to begin considering changes to its recent tax that rate cut-a fact which is a testament to the inefficiency enactments before the loose-leaf sheets memorializing those of the high present rates. enactments have been filed in their binders. Those who VO L U M E 9. NO. 1 27

of different rates for capital gains vis-a-vis ordinary income, It is almost true by definition that the thus restoring the importance of a distinction that has been wealthy will benefit most from a capital mostly irrelevant since the Tax Reform Act of 1986. Distributional Effects.The primary argument against gains tax rate cut: being wealthy means reducing the capital gains tax rate is that the benefits of such having assets) and having assets gener­ a tax cut would be enjoyed almost exclusively by wealthy ally means having gains) at least as long taxpayers. Half-hearted attempts to dispute this can be found in the literature on this subject, but they are wholly as we have both real economic growth unconvincing. They are unconvincing in part because they and inflation. are overwhelmed by counter-evidence. (In 1986, tax returns showing adjusted gross income of $1 00,000 or more ac­ counted for a bit over 1% of all returns filed, but those re­ speak of frequent tax rate fluctuations as though that were turns reported about rwo-thirds of all net long-term capital aberrational have not been paying attention to the pattern of gains-the only gains for which favorable rates have tradi­ recent tax legislation. Contemporary analyses informed by tionally been available.)? But they would be unconvincing public choice theory have even argued that frequent tax even in the absence of counter evidence, because of their change is in the best interest of members of Congress, if not implausibility. It is almost true by definition that the the public, and is therefore likely if anything to get worse.6 wealthy will benefit most from a capital gains tax rate cut: Finally, it is especially heroic of tax reformers to expect that being wealthy means having assets, and having assets gener­ capital gains rate fluctuations can be brought to a halt at a ally means having gains, at least as long as we have both real time when those rates are in the upper ranges of recent his­ economic growth and inflation. torical experience. Owners of appreciated assets can at this Paradoxically, however, the high correlations berween point be expected, having come so close last year to a lower wealth, income, and ownership of appreciated assets, pro­ capital gains rate, to wait for that change patiently. vide poor grounds for opposing a capital gains tax cut. In The only reasonable response to this situation, it seems fact, those correlations present an opportunity rather than to me, is to recognize that the rate realization curve is indeed an obstacle: because we know so clearly who benefits from a quite flat in the relevant ranges and is likely to stay that way capital gains tax rate cut, we know precisely where to look to for the foreseeable future. In that case, relatively high capital make up any revenue lost by such a cut. And, by the analysis gains rates will yield lime or no additional revenue com­ presented in the first part, we have reason to believe that the pared with substantially lower rates, but will nevertheless welfare gains enjoyed by the wealthy from a capital gains tax produce considerable-and wholly avoidable-inefficiencies rate cut will be much greater than just the direct tax dollars in the nation's capital markets. I believe that a prima facie they save; they will include the regained portions of the ex­ case for rate reduction has been made. cess burden of the present rates. In view of these substantial welfare gains, there would seem ro be a good argument for Objections to Lowering the Capital Gains Tax Rate ttying to recoup much more ordinary income tax from the The purpose of the first part of this article has been to wealthy than any revenue that is lost through a cut in the demonstrate to readers that taxing capital gains at the gains rates. An increase in marginal rates on ordinary in­ present relatively high rates is strikingly inefficient, given the come above $200,000 to 33% would seem amply justified.s other constraints built into the federal income tax. That in­ And it is estimated that such an increase would produce efficiency is, of course, not the only concern in developing about $41.9 billion over the next five fiscal years-nearly appropriate policies in this area. Considerations of fairness, simplicity, and administrability, among others, are also im­ plicated by proposals to lower tax rates on capital gains. Ar­ There is a considerable convenience in guments about these concerns have been fully articulated knowing precisely who benefits from a tax elsewhere, and will not be discussed in detail here. I will confine myself in this part to a brief assessment of each of cut) and knowing as well how that group the major arguments against lowering the capital gains rates. can be targeted for an offsetting adjust­ For purposes of this discussion, I am assuming that any pro­ ment elsewhere in the tax system, so as to posals seriously considered would, like the Administration's proposal, impose only a special capital gains rate cut, not a maintain a distributional status quo. general tax cut. Thus, implicit in this discussion is the idea 28 DUKE LAW MAGAZ I NE

From issues such as these, substantial complexity pretty Treating one type of income more favor­ much inevitably arises-complexity both in the tax rules ably than another inevitably puts pres­ themselves, and in the planning for asset transactions. I regard this problem as the most serious drawback of the sure on the distinctions between the two idea of a capital gains rate differential. There are a few re­ types. In the context of the capital gains­ sponses that can be noted, however. First, it should be re­ ordinary income distinction, this is par­ membered that most of this complexity is still in the Code anyway, and probably has to be there in some form or an­ ticularly troublesome, because that dis­ other to limit abuses in capital loss deductions. Individuals tinction becomes highly evanescent at the are still limited, as they were prior to 1986, to a deduction boundaries. of only $3000 for net capital losses in a single tax year. Since net capital losses are, of course, capital losses minus capital gains, it follows that any taxpayer who has already suffered, four times the amount that the Joint Committee believes a say, a $50,000 capital loss in a tax year, can enjoy a gain of capital gains tax would lose. up to $47,000 tax-free, if that gain can qualify as a capital In fact, there is a considerable convenience in knowing gain.9 Thus, many taxpayers may have a need to know precisely who benefits from a tax cut, and knowing as well whether or not sale of one of their assets would generate a how that group can be targeted for an offsetting adjustment capital gain even under present law. elsewhere in the tax system, so as to maintain a distribu­ Second, to paraphrase the public finance maxim "an old tional status quo. An example where that is not so will make tax is a good tax," we might note that an old complexity is the point: Many tax analysts agree that a higher gasoline tax more tolerable than a new complexity. The capital gains­ would be wise, because of its revenue-generating potency, ordinary income distinction has been a part of our modern and its favorable environmental and balance-of-payments income tax virtually from its inception. The tax-reformltax­ effects. It would not be distributionally neutral, however, in avoidance dynamic-whereby a "loophole" is closed by a geographic terms: taxpayers in the west, and in rural areas rule that creates new avoidance opportunities (perhaps everywhere, drive greater distances than other taxpayers, and smaller ones, if the reform is sound) slightly displaced from would bear a disproportionate part of the tax burden. Since the old ones-is surely alive and well in the capital gains it is difficult to design an offsetting adjustment in the tax area. But we should remember that most of the more system to preserve the status quo as to burden distribution, troublesome questions have been reduced by now to higher gasoline taxes have been debated, but not enacted. managable forms. Such a fate need not befall capital gains tax cuts. A solu­ Third, we should also remember that, in this area as in tion that raises revenue while lowering tax burdens may many others, most of the transactions are garden-variety consist of the simple device of tacking on a new, modestly ones that contribute very lirtle to overall complexity of the higher top bracket as an accompaniment to the lower capital tax system. Sales of stock, sales of land, and the like will usu­ gains rates. ally be fairly straight-forward. Further, a lower rate on capi­ Complexity of the Tax System. Even if one is willing tal gains may make at least some highly complex non-recog­ to accept some additional inconsistencies in the tax system, nition transactions (corporate reorganizations, like-kind ex­ it should be recognized that one side effect of doing so is the changes, etc.) marginally less common, as some taxpayers creation of greater complexity. Treating one type of income more favorably than another inevitably puts pressure on the distinctions between the two types. In the context of the We should remember that the great bulk capital gains-ordinary income distinction, this is particularly troublesome, because that distinction becomes highly eva­ of the costs associated with any increase nescent at the boundaries. It is common, for example, to in complexity will be borne by the own­ define the value of a capital asset in terms of the discounted ers of capital assets themselves. And my present value of the income the asset can be expected to pro­ duce in the future. More concretely, if you own a machine strong impression of the situation is that with a five-year expected life, and you lease it to another for the affected taxpayer group will find one year, the rent you receive is clearly ordinary income. But what if you "lease" the machine for all five years of its ex­ these burdens light, and bear them pected life? What if you "sell" the machine, but lease it back, gladly. or retain an option to buy it back at some future point? VOL U M E 9 . NO.1 29

decide they would prefer a simple taxable transaction at militate powerfully in this direction. The tax system should lower rates to the more complex avoidance transaction they depart from such a structure only with great reluctance. might otherwise have chosen. On the other hand, it must be admitted by even the Finally, we should remember that the great bulk of the most ardent opponents oflower capital gains rates that taxes costs associated with any increase in complexity will be in the 30% range on such gains are miserably inefficient, at borne by the owners of capital assets themselves. And my least within the contours of the present federal income tax. strong impression of the situation is that the affected tax­ My own tentative resolution of these competing con­ payer group will find these burdens light, and bear them cerns is informed mostly by a strong sense that the Ameri­ gladly. This is, after all, a group (i.e., upper-middle and up­ can public has shown that it regards itself as excessively bur­ per-bracket taxpayers) that has, as business people, profes­ dened by federal taxes in recent years. Candidates for office sionals, and wealth-holders, borne in recent years the great­ who promise not to raise taxes, no matter what, do better est share of the complexity burden of refined time-value of than candidates who campaign on more responsible plat­ money rules, at-risk limitations, passive activity loss limita­ forms. Under such circumstances, if tax rules can be found tions, alternative minimum taxes, uniform capitalization, that collect the same revenue (or perhaps even a little more) "kiddie taxes," generation-skipping transfer taxes, and a long with less excess burden, we would generally be wise to enact list of others. All these complexity burdens have been im­ them. Lower rates on capital gains, coupled with modest posed in the name of tax reform; this group of taxpayers can increases in the top rates on ordinary income, seem to offer be forgiven if they regard with some exasperation the claims precisely such a possibility. With all its many faults, this of tax-reformers that complexities associated with favorable proposal would, I think, marginally improve the tax system, rates on capital gains make that proposal unacceptable. and I (somewhat uneasily) advocate it. Offsetting Inefficiencies. The argument in the first part of this article is based on the substantial inefficiency of having tax rates on capital gains of 28% or 33%. If 'A. SMITH. AN INQUIRY INTO T HE NATURE AND CAUSES OF those rates are lowered, and especially if doing so then THE WEALTH OF NATIONS. BookV. ch. 2. 'Su Lipsey & Lancaster, Th. General Th.ory ofSecond 8m, 24 REV. ECON. requires that some other rate be raised to recover any STUD. II (1956). revenue loss, there is a distinct possibility of introducing .IOf course. if the asset has a value that is lower than its tax basis, the some alternative source of inefficiency into the system that distortion is reversed: taxpayers may dispose of assets sooner than they orherwise would in order to deduct capital losses. The effects of inflation (which tends to may be as damaging as the capital gains inefficiency. More push asset values above their unindexed tax bases) and the limirations on the particularly, if the ordinary income rates are raised at the deductibility of capital losses make this premature disposition effect a far less top end to maintain revenue neutrality, those rates may serious source of distortion than the lock-in effect described in the text. exaggerate the excess burden associated with that part of ' I.R.C. § 121 may permit her to do this tax-free, if she is over 55, has less than $125.000 of gain, and has not previously used thjs once-in-a-lifetime relief the tax system. provision. If any of rhose conditions fails, she may be inhibited by the threat of a On the other hand, it would seem that the tax elasticity capital gains tax. of ordinary income must be very much lower than the tax 5A substantially more detailed explanation of the public finance economics underlying this discussion can be found in a more complete and berter elasticity of capital gain income, at least under the present documented version of this article. to be published shortly in volume 47 or 48 set of rules. The outstanding distinction between the two is ofTAX NOTES. that capital gains taxes can be avoided without foregoing 6 Suo •. g. • Doernberg & McChesney, On th. Acc&rating Rate and Decreasing Durability of Tax Riform, 71 MINN. L. REV. 913 (1987). wealth accretion, simply by avoiding realization events; the 7Internal Revenue Service, Statistics ofIncome - 1986, Individllallncome opportunities to avoid the income tax without avoiding in­ Tax Returns, Table 1.4 (Washington, D.C. 1989). come itself are much more limited, and generally more ex­ sMore accurately, my suggestion is to eliminate the 5% surcharge that pensive. Although the econometric evidence on this ques­ presently applies to taxpayers having taxable incomes from about $75,000 to about $200.000 (assuming a joint return and a four-person family), and replace tion is hardly conclusive, what evidence exists generally sup­ that with an explicit 33% marginal rate bracket beginning at about $75,000 of ports the view that significantly less welfare would be lost taxable income (fot joint teturns) and continuing indefinitely. In addition to raising revenue, this change would have the adctirional salutary effect of due to modest increases in the top ordinary income rates reversing the decision reflected in the Tax Reform Act of 1986 to impose a than would be gained by a revenue-equivalent reduction in marginal rate on extremely high-income taxpayers that is lower than the one capital gains taxes. imposed on upper-middle income taxpayers. 9Because of capital loss carryovers (I.R.C. § 1212). this capital gain need not be realized in whole, or even in part, in the same year as the loss. However. from Conclusion the taxpayer's viewpoint, the sooner the effectively exempt gain can be realized, In thinking about taxing gains from capital transactions, the more valuable the exemption. one confronts two competing sources of unease. On the one hand, there is great appeal in the idea of taxing all income at the same rate: both simplicity and fairness considerations

VOL U ME. 9 , NO. 1 31

Judicial Clerkships: An Exciting Opportunity

"W hy clerk?" That is a ques­ job as lawyers." Clerkships appear to of clerkship and the type of judge best tion that members of the some to be a delay in that process. But suited to their interests. faculty and administration this perspective does not comport with The new clerkship program at Duke at Duke Law School have attempted to most people's experiences in the law or has made strides both in encouring answer for students this year. The an­ with the experience of most judicial more students to apply for clerkships swers are somewhat varied, but it is clerks. and in raising the awareness of clerkship hoped that the overall effect of the ask­ Many legal employers see a clerkship opportunities. As Professor Beale and ing and answering of that question will as a very positive experience. In fact, Dean Mosteller emphasize-clerkships be a heightening of awareness of clerk­ John M. Harmon '69, a practicing at­ are not for everyone; but most Duke ship possibilities among Duke law stu­ torney in Austin, Texas, states that his law students can find a clerkship some­ dents. firm places great value on the clerkship where if they decide that it is something Last year, Dean Pamela Gann and experience and seeks to hire young law­ they want to do. members of the Faculty-Student Place­ yers who have first clerked with a judge. ment Committee expressed the feeling Also, many lawyers change jobs several The Program that fewer students at Duke considered times during their legal careers and a As Professor Beale expresses it, "We clerkships than might be warranted, and clerkship is not only an opportunity to asked the question, 'What do we need that perhaps clerkships were not pre­ do something for a year or two that is to do to improve on this?', and we came sented as a viable choice to enough of different and enjoyable, but also a pro­ up with several ideas." The efforts were the student body. In response, Senior fessional credential that "travels well." focused in two ways: first, raising aware­ Associate Dean Robert Mosteller, to­ Although the compensation level for ness of clerkship opportunities and sec­ gether with Professor Sara Sun Beale clerks is well below that of associates in ond, helping students to present them­ and the other faculty members on the major law firms, a clerkship offers expe­ selves as attractive candidates for Placement Committee, developed a pro­ riences that are not available in law firm clerking. gram to heighten student awareness of work. In the fall semester, each second-year clerkship opportunities. In addition to broadening the nwn­ law student received a memo from Dean Mosteller believes that the Law ber of Duke law students who consider Dean Gann outlining the benefits of School needs to enhance student enthu­ clerkships, the Law School's program is clerking for a judge and offering sugges­ siasm for clerking as an attractive choice also focused on expanding the types of tions to the students about how to pre­ for the first year or two after graduation. clerkships students consider. Because pare for the clerkship application pro­ He notes that "students fall into pat­ federal circuit court clerkships are often cess. Dean Gann offered a number of terns of expectations, and many stu­ described as the "prestige clerkship," reasons for considering a clerkship: the dents at Duke have not been encour­ students sometimes fail to look beyond ongoing value of a clerkship as a profes­ aged to aim high enough and broadly these to the many opportunities in fed­ sional credential, the distinctive learning enough in their thoughts about what eral district courts, in federal specialty experience available through a clerkship, they want to do after Law School. He courts, and in state courts. Although it and the fact that most clerkships are feels that the attitude about employ­ is true that circuit court clerkships can very enjoyable and satisfYing experi­ ment at the Law School is generally too offer wonderful experiences, the rich­ ences. conservative-instead of looking at their ness and value of other types of Dean Gann also advised students to lives in terms of different opportunities, clerkships should not be underrated. think about how to "position them­ students tend to see their first job in the Through this new program, the faculty selves" for a clerkship. In her letter she law as their last. Mosteller also sees a and administration hope to introduce emphasized the importance of develop­ "tendency on the part of students to feel students to the variety of clerkships ing a working relationship with one or that they must get right at their 'real' available and to help them find the type two faculty members, so that those per- 32 DUKE LAW MAGAZ I NE

sons could write knowledgable letters of judges visit to teach sections of the the judge for whom you clerk. She reference to the judges to whom the course. These judges meet with inter­ found Judge Starr to be a delightful per­ student applied. Because so much of ested first-years to familiarize them with son, and notes that his chambers were Law School instruction is in a large lec­ clerkship opportunities. This year, respectful but informal. There was an ture format, Dean Gann emphasized Judge James Oakes, ChiefJudge of the "open door policy" where the clerks and that students must make course deci­ Second Circuit Court of Appeals, and the judge wandered freely into one sions first semester with an eye toward Judge Abner Mikva of the D. C Circuit, another's offices to discuss the cases and clerkship applications during the next taught in the professional responsibility to exchange ideas. "There is no other term. This means that in course selec­ course and spoke with first-year stu­ opportunity to have that kind of polish­ tion, students should attempt to sign up dents. ing of judgment. In a law firm you start for small seminar courses or arrange for In addition, Professor Beale and out as low person on the totem pole. independent study or research work for Dean Mosteller held meetings with stu­ Clerking is very different. The judge a faculty member. Work on a more per­ dent organizations to familiarize stu­ relies upon you one hundred percent to sonal seminar or independent study dents with clerkship options. They keep on track. Judge Starr required a lot level will insure that at least one or two spoke with each of the law journal of us. He wanted us to be as up on the members of the faculty are familiar with staffs, the Moot Court Board, the Black cases as he was, and he prepared thor­ the student's work. Law Students Association, and the oughly. He argued with us about the During the fall semester the Place­ Deans' Advisory Council. Beale and cases. He was always testing new ideas ment Committee sponsored two pres­ Mosteller have also spent time talking and rethinking approaches to the legal entations for second-year students to with individual students and helping questions we confronted. In the D.C familiarize them with the clerkship pro­ them to prepare effective resumes and Circuit we were often dealing with big cess. First, the Committee brought a application packages. They encouraged policy questions, so it was the perfect distinquished panel of judges to the faculty members to put extra effort into place for a 'policy junkie' like me. Intel­ School to talk about the clerkship pro­ gathering information about students lectually, clerking beats everything you cess. This panel included Justice Gary before writing letters of recommenda­ do afterward in the law. " Stein '56 of the New Jersey Supreme tions. As the application season moved John Harmon '69 clerked for Judge Court, Judge Norma Shapiro of the on, Professor Beale and Dean Mosteller Griffin Bell of the U.S. Court of Ap­ U.S. District Court in Philadelphia, and kept tabs on which students were apply­ peals and for Justices Warren Burger Judge Daniel Friedman of the U.S. ing to which judges, and encouraged and Hugo Black of the U.S. Supreme Court of Appeals for the Federal Cir­ some students to broaden their applica­ Court. He notes that his law firm cuit. During the meeting, Professor tion pool. highly prizes law students who have had Beale also distributed a comprehensive a clerking experience because it gives booklet she prepared about clerkships Why Clerk?: The Alumni Perspective capacities to a student that are diiferent and the "how to's" of making applica­ Kenneth Starr '73, Solicitor General than the skills developed at law school. tion. After the meeting, a reception was of the United States and former judge "Clerking gives self-confidence to a stu­ held for the panel members, students, on the U.S. Court of Appeals in the dent. Law clerks learn that they can step faculty and other judges from the area D.C Circuit, describes the clerking ex­ out and be exposed to many areas of who have some affiliation with Duke perience as "a very special-indeed law and become relative experts in those Law School. In the evening, Professor unique-relationship of high profes­ areas in a very short time. They are able J ames Cox hosted a dinner at his home sionalism and deepest confidence. Se­ to take the resources in the briefs, talk for the judges and for representatives of crets are shared. Confidences are freely with their judges and fellow clerks, re­ various student organizations. exchanged. A law clerk becomes, in ef­ search and solve problems that other A second panel composed of three fect, a member of the judge's judicial more experienced lawyers have not been current third-year students who have family. In fact, the relationship, al­ able to solve. A clerk is, in effect, the secured clerkships and a young alumna though short-lived in chambers, contin­ judge's lawyer. It is valuable to come to who had clerked spoke to second-year ues for a lifetime." a law firm with that confidence." students about their application and Linda Arnsbarger '85, who clerked Harmon clerked for Judge Bell on clerkship experiences. for Judge Starr during the 1985-86 the Fifth Circuit during the years when In January when professional re­ year, describes clerking as a fabulous the court was wrestling with desegrega­ sponsibility is taught to first-year stu­ experience, and emphasizes that much tion. He learned many helpful habits dents at the Law School, a number of of the clerking experience depends on from Bell, including organizational abil- VOL U ME. 9, NO. I 33

ity and efficiency. "Judge Bell would tions. "Justice Black lived the law. We both good lawyering and bad lawyering, step out of oral arguments and pass out rode to work and back together and ate and can learn how cases that seem to be opinions to be written by each of his breakfast together. We worked in his in a mess could have been avoided." clerks and then he would take some of home. We talked about cases continu­ Kevin Kaplan '89, one ofJudge the opinions himself. He believed it was ally. He never had a problem with the Tjoflat's current law clerks, describes important to keep things moving and to forest and the trees. He believed that it the clerkship as "a good exercise in stay on top of the work." was necessary to talk things out in order thinking." In dealing with complicated Harmon also learned many lessons to really understand them." legal questions, a clerk is forced to learn in creativity from the judge. "During Judge Gerald B. Tjoflat '57, Chief how to cut to the heart of things and this time an ingenious concept devel­ Judge of the Eleventh Circuit of the figure out what is really going on. oped in the Fifth Circuit. It was their U.S. Court of Appeals, who has had Kaplan emphasizes the importance of way of dealing with segregation by many Duke law students as clerks over selecting a judge carefully. "Judge changing the status quo and saying the years, provides a view from the Tjoflat gives us a lot of responsibility, 'enough is enough.' For ten years after other side of the bench. "Through but he also spends a lot of time working the desegregation orders carne down clerking, a student can gain an experi­ through problems with us and giving us towns kept developing desegregation ence that money simply can't purchase. advice on how to improve our work." plans which were inadequate and after The experience is the equivalent of a State supreme courts and state courts the plans were overturned by the courts, post-graduate degree, as it offers the of appeal also offer valuable experiences the towns would simply submit new, clerk a unique exposure not only to a at the appellate level of the judicial sys­ but equally inadequate plans. Alexander wide variety of issues, but to the whole tem. Justice Robert Clifford '50 has vs. Holmes City was decided by the Su­ judicial system ... A clerk sees a digest of served on the Supreme Court of New preme Court while I was clerking. After all things in a case. Through examining Jersey for seventeen years. He describes that decision, the Fifth Circuit decided the record a clerk at the appellate level a clerkship in his court as an opportu­ to do more than simply reverse these sees how cases begin, develop, and get nity to gain an interesting perspective cases. They wrote out desegregation to a point where the arguments are on how an appellate court REALLY plans for the towns and told the towns clear. Along the way, the clerk may see works. Clerking on a state supreme to implement them. In essence, the judges were saying, 'It's over, NOW ... you implement these plans not next year, but during Christmas break. The kids are going to come back to new schools.' I had never been to Yazoo City, but there I was in the judge's chambers, redrawing school lines. It was an ingenious plan because it forced the towns to cooperate. Suddenly they were back in court asking for modifications. They took the plans and refined them. They would come into court asking for this or that change, because the judge's plan made kids cross the railroad tracks six times or because a different configu­ ration fit better with the geography of the town. The plans were a way of forc­ ing those towns to actually do some­ thing. It was a spine-tingling moment when the judges passed out all of those plans. I will never forget it." With Justice Black, Harmon learned about thinking through cases and about different ways to approach legal ques- Judge Gerald B. Tjoflat '57 confers in chambers with his judicial clerks , Bill Mureiko '89 (left) and Kevin Kaplan '89. 34 D U K E LAW MAG A Z / N E

court provides a valuable glimpse of the Therefore he works with his clerks to his clerks also have the experience of dynamics of a collegial court where the learn how to pick out and present the reviewing the record for error in social same group of judges address all of the facts that are most decisive, quoting security cases and habeas petitions-"a issues together. Justice Clifford believes Daniel Webster's saying, '''[t]he func­ valuable experience for beginning trial that this is an especially exciting time to tion of a lawyer is to keep things clear.' lawyers who need to learn how to make be involved in an active state supreme It is an intellectually stimulating experi­ the record for review." ToNola Brown court. "It used to be that all of the sexy ence." '87, who clerked for Denson for two legal issues were decided in federal Many students who know they are years, considered the clerkship "a ben­ court. But now there is a noticeable interested in litigation seek clerkships at eficial extension of my legal education." trend in the other direction. All of the the trial court level. Judge Ernest Torres She particularly appreciated the hands problems of society seem to be making '68, a federal diStrict court judge in on experience she had in drafting opin­ their way to the door of the state courts. Rhode Island, believes that a district ions and jury instructions. State constitutions are playing a larger court clerkship is a good opportunity to Trial court clerkships are available in and larger role in litigation. Because get an inside look at the litigation pro­ state courts as well. William Daniel'48 New Jersey is a corridor state we are see­ cess and to work closely with a judge to is a judge in the Superior Court in At­ ing some of the challenging issues dis­ see how the judicial decision-making lanta. Because of his case load, he par­ cussed here-educational funding, process works. He hires two clerks each ticularly values clerks who have a back­ housing and death penalty issues, to year and relies on his clerks for research, ground in criminal procedure. His name just a few. The issues we address writing and "whatever needs to be clerks do more research than writing are fascinating, ever-changing and im­ done." He works with his clerks to im­ and have the opportunity to hear lots of portant. The clerks are intimately in­ prove their writing and their analytical "splendid ... and not so good, lawyer­ volved in the process. I depend heavily abilities, describing a clerkship as an ex­ ing." He describes clerking as "helpful on my clerks. I think it is an excellent cellent opportunity to develop one's in giving an excellent idea of how law­ exposure to an important part of the writing skills. yers conduct their business." legal system." Clerking for a federal magistrate can The clerkship program at the Law Justice Clifford's clerks appear to be also provide good training for litigation. School encourages students to consider equally enthusiastic about the experi­ Though not classified as judges, federal different types of clerking experiences. ence. Peter Verniero '84 clerked for magistrates are authorized to perform For example, Erik Autor '88 is presently Justice Clifford the year after he gradu­ many judicial functions including clerking for Judge Dominick DiCarlo ated from Duke. He believes that a well supervising discovery and holding pre­ on the U.S. Court ofInternational respected court like the New Jersey Su­ trial conferences, arraignments, and bail Trade, an Article III court with both preme Court and a mentor like Justice and suppression hearings. Magistrates trial and appellate jurisdiction. Clifford are, "an unbeatable combina­ are authorized to try misdemeanor In trade cases involving issues of tion. Clerking is a tremendous experi­ criminal cases and, with the consent of dumping and countervailing duty or ence, one you cannot duplicate any­ the parties, civil cases. unfair foreign trade practices, the court where else in legal practice. It is an Alex Denson '66, a federal magis­ hears appeals from the Commerce De­ excellent opportunity to extend devel­ trate in the Eastern District of North partment and the International Trade opment after law school. In the right Carolina, points out that students inter­ Commission. In customs cases, it acts as clerkship you have an opportunity to ested in clerking for a federal magistrate a trial court to decide issues of class and develop a relationship with the judge should determine what types of cases valuation regarding imports. Autor and to develop good professional habits. are handled by the magistrate in that finds that the court and its clerks there­ The judge becomes a tutor. The clerk­ particular jurisdiction. Denson, for ex­ fore "wear two hats," but he considers ship prepared me for private practice. It ample, handles a heavy civil trial calen­ the clerkship more similar to that in a set me on the right professional track." dar so his clerks see a lot of trials, which court of appeals as it involves "more re­ Judge Eugene Phillips '47 serves on he considers helpful for those interested search and writing rather than handling the North Carolina Court of Appeals. in a civil trial career. He sees it as an op­ such things as motions and jury He believes that his clerks develop valu­ portunity to view issues impartially as charges." able skills by focusing on and distilling does the judge, rather than approaching As this is a very specialized field, out the importance of the facts in cases matters as advocates as they will when handling very technical and compli­ that come before the court. His experi­ working in a firm. He points out that cated cases, Autor notes that "many ence is that more often than not the the variety of duties in a magistrate's lawyers have never heard of the court. case turns on the presentation of facts. office offers additional opportunitites; This clerking experience will not trans- VOL U ME . 9. NO. J 35

fer well to a general practice, but it is practice. The experience offers tremen­ very helpful to me as I plan to stay in dous insights into the way 'the law' de­ the field and work for a firm with a velops." trade practice. I now have a much better Professor Jeff Powell, who clerked appreciation of what judges are looking for Judge Sam Ervin on the U.S. Court for when they decide a case-what in­ of Appeals in the Foutth Circuit, be­ formation they need and what argu­ lieves that the decision to clerk should ments are not worth putting in the involve careful thought and research. briefs. " He therefore recommends a "I do not recommend clerking in the clerkship in such a court for those "who abstract. The relationship between a want to go into a specialized field." judge and a clerk is personal as well as Rebecca Swenson '84 worked first as professional. When choosing a clerkship a court law clerk for the D.C. Circuit it is important to get a sense of what the (now called staff attorney) and then for relationship with the judge will be like Judge Robert Bork of the same circuit. on a personal level. Judge Ervin has a Although she enjoyed working for In 1983. Professor Jeff Powell (left) clerked for the laid-back style. That fit in with the way Honorable Samuel J. Ervin . III. Judge Bork and is thankful for the op­ I enjoy living my life. It was the perfect portunity to work in close proximity clerkship for me, but for someone with with someone whom she holds in high Fifth Amendment takings, military a different temperament it would not regard, Swenson's greatest enthusiasm is compensation disputes and tax ques­ work as well. A student shouldn't feel for her job as court law clerk. The court nons. pushed into clerking if it doesn't sound law clerk handled dispositive motions Blancato loved working as a clerk in attractive or exciting." and procedural motions. Her job in­ the U.S. Claims Court. "It is a great "BUT," Powell continues, "if volved researching and presenting the experience. You do it early in your ca­ clerking is something that appeals to a merits of these motions to the judges. reer but it is probably the best job you'll student, it is an ideal opportunity to "It was the best job I've ever had. I have in the law. There was time to ana­ work closely with an experienced senior would write memos and then I would lyze problems and turn over every stone; member of the profession, and to watch have ro argue my position on the mo­ in practice you usually don't have that how that person 'lawyers.' A large part tions before a three-judge panel every sort of time. It was also an opportunity of how we understand who we are as week. I worked a lot. It was exciting ro work with a judge who has had expe­ lawyers is through the development of and it involved a lot of responsibility. rience. Judge Kozinski gave us his images of how a lawyer professes her The opportunity to argue before the thoughts and critiqued our work. calling and of who she understands her­ judges was great preparation for litiga­ Working with the other clerks was fun self to be. To have a rewarding clerkship tion. I could also choose to be the as well. We didn't actually make deci­ is to powerfully develop such an image." fourth clerk to any judge who needed sions; but it is as close as you can get to Professor Sara Sun Beale also em­ help. My writing skills and oral skills playing judge without actually being phasizes the close working relationship really developed during that time. The one. " between a clerk and a judge. She clerked job is also a great source of references for Judge Wade McCree from 1976- and connections. And, it is a job that is The Faculty Perspective 1977 when he was serving on the U.S. available to people even if they don't "A year of looking over the shoulder Court of Appeals in the Fifth Circuit. have perfect grades or a proven track of a judge," is the description Professor In a Michigan Law Review issue dedi­ record. I highly recommend the experi­ John Weistart '68 gives to the clerking cated to Judge McCree after his death, ence. I loved it." experience. Professor Weistart clerked Professor Beale likens the experience of Bill Blancato '83 clerked for Judge for J ustice Walter Schaeffer of the Illi­ being a "McCree clerk" to becoming a Alex Kozinski when he was a judge on nois Supreme Co un in 1968-69. He part of the judge's own family. That the U.S. Claims Court. (Kozinski now feels that clerking is a valuable experi­ sense of extended family continued even serves on the U.S. Court of Appeals in ence whether one chooses ro practice or after the clerks moved away and started the Ninth Circuit.) The U.S. Claims to teach. "Law school offers one per­ families of their own. Court hears all of the claims against the spective on the law and practice offers a She considers it a stroke ofluck to United States except tort claims. That second perspective; clerking is a distinct have landed in Judge McCree's cham­ means that Blancato spent most of his and helpful third perspective. It is the bers. "I clerked for Wade McCree from time doing work on contracts issues, perfect transition from law school to 1976-77. In retrospect I have often 36 D U K E L AW M A G A Z I N E

opinions were the dantes. Judges also depend on the fairness of the pro­ clerks to get the work done. They des­ cess and respect for perately need law clerks. It is an impor­ the dignity and tant position. It is also an opportunity rights of individu­ to help make the law at some level. The als. He once said mutual dependency between clerks and that the social im­ judges usually creates a wonderful rela­ peratives of a large tionship." country should not Professor Tom Rowe clerked for J us­ encroach upon in­ tice Potter Stewart on the U.S. Supreme dividual rights and Court during the 1970-71 term. He freedoms any more recalls, "the term began with the Char­ than necessary ... lotte-Mecklenburg busing arguments [Hle sometimes and ended with the Pentagon Papers. It spoke of the racial was a fascinating experience just seeing discrimination he the inside of how lots of decisions are had suffered. The made. It really gave me a more realistic judge was not bit­ sense of how decisions DO get made. ter, but he was de­ They are greatly affected by political termined that the questions, by other legal issues and by dignity of every the judges' druthers. The other clerks individual should are interesting as well. They are worth be respected. He getting to know because they are bright, applied that stan­ fun people and they provide valuable dard to every per­ professional contacts after everyone goes son with whom he his or her own way." came in contact. Professor Bill Reppy has written an He was as courte­ article about his recollections of clerking Professor Bill Reppy (right) with The Honorable Raymond C. Peters during his ous to the elderly with Justice William O. Douglas on the clerkship in 1966-67. woman who U.S. Supreme Court.2 Professor Reppy, cleaned his cham­ who clerked both with Justice Douglas bers as he would and with Justice Raymond E. Peters of marvelled at my good luck. When I ap­ have been to the Chief] udge .... I feel the California Supreme Court, notes plied, I knew little more than the fact fortunate to have had the opportunity "clerking is a great experience, offering a that the judge's chambers were within to work for such a warm, brilliant, and wide variety of exposure to the law. You commuting distance of Ann Arbor, highly principled man who taught me are involved in scores of cases and are where I was living while my husband so much, both personally and profes­ able to study the record and see where was in graduate school. During and af­ sionally. I loved and respected him, and the errors were made and where people ter my clerkship I learned what an ex­ I will miss him.'" lost who should have won. It is excel­ ceptional man the judge was, what a This sense of warmth and apprecia­ lent practical training, really almost warm relationship he established with tion is often apparent when clerks speak clinical. It's fun, it's exciting and the his clerks, and how much he could and of the judges with whom they have people you work with are bright. There i I did teach them. He was a wonderful worked. Dean Mosteller, who clerked are a group of clerks in most court­ mentor and friend." for Judge Braxton Craven in the Fourth houses, and those people spend time Professor Beale's time with Judge Circuit of the U.S. Court of Appeals, together discussing law and ideas. It is McCree left lifetime impressions. She explains, "Judges can't talk to others really a tremendous intellectual experi- remembers him as a man of profound about the cases they are deciding. They ence. " and deeply held commitments. "As we are largely cut off from professional Professor Tom Medoff clerked for worked on individual opinions with the conversations with lawyers by the ethi­ Judge Robert Ainsworth of the Fifth judge we also learned about his values. cal demands of their job. The clerks be­ Circuit Court of Appeals and for Justice The overriding concerns reflected in his come the judge's professional confi- Byron White of the U.S. Supreme VOL U ME. 9, NO . 1 37

Court. He emphasizes the "people" as­ large law firm. Though acknowledging was four weeks on an anti-trust case. In pects of clerking. "You see that the legal those economics, Professor Metzloff the Supreme Court I spent five weeks system is composed of people. Seeing emphasizes his belief that clerking is a on a commerce clause case. It is a how a judge deals with an issue is an great choice. "The point is, it's only one chance to grapple with tough legal is­ excellent experience for anyone, for any year. And after that year you come back sues very quickly. It is really a lot of kind of lawyer, not just for a litigator. to where you would have been anyway fu n. " In clerking you realize that who wins if you had started with the firm. Most The "fun" of clerking seems to come and who loses doesn't just turn on the importantly it is a pleasant year. It's a up in most everyone's descriptions of way the case is argued. Judges have their free year to go somewhere and experi­ the experience. But Dean Mosteller } own views of things, and that affects ence a new community-risk free. I was may have described that aspect of their decision-making process. Clerking a northeasterner and my clerkship in clerking most aptly: "So many people made me realize that a good lawyer New Orleans was an opportunity to seem to spend time worrying about ca­ structures an argument looking for the experience the South and to live in an reers. But one can also look at life as an best possiblities with that particular interesting and lively city. It's also pleas­ effort to put together pleasant years. judge. Knowing the importance of a ant because the work is interesting. In Clerking is a very pleasant year." judge's views takes some of the pressure practice, two to three cases will often off, and it also helps in planning an ar­ occupy seventy percent of your time. Denise E. Thorpe '90 gument." They go on forever without end and it It is true that today there is a vast is hard to stay fresh. A clerk gets new 'Beale, Wade H. McCree, Jr., 86 MICH. L. REV. 21 7, 218-20 (1987). difference between a law clerk's salary cases at least weekly. The longest time I ' Reppy, Justice Douglas and His Brethren, 12 N.C. and the salary of a starting associate at a spent on a case in the Court of Appeals CENT. L.J. 412 (1981 ).

LaW" Students Shine in Moot Court COfllpetitions

pring semester was a busy time Judges Jon Newman (Second Circuit) Carmela Edmunds in April. Presiding for the many Duke law stu­ and Richard Cudahy (Seventh Cir­ over the final round, which centered Sdents who participated in moot cuit). The case argued, Delgado v. on a right-to-die case, was North court competitions, both within and Smith, centered on whether an initia­ Carolina Supreme Court Justice outside the School. Duke teams par­ tive petition circulated by private citi­ Henry E. Frye. ticipated successfully in three national zens, whose use in accordance with Jessup International Law Moot competitions, bringing home several state election laws results directly in a Court Competition. The Philip C. trophies and awards. The intraschool statewide election on a proposed con­ Jessup International Law Moot Court competitions were highlighted by the stirutional amendment, is subject to Competition consists of two levels of presence of Supreme Court Justice the language minority requirements of oral pleadings. Regionals are held in Sandra Day O 'Connor, who judged the Voting Rights Act of 1965. each country where more than one the final round of the Dean's Cup Although Kann was named the team wishes to participate in the Inter­ Competition in February. winner of the Dean's Cup after a lively national Semifinals Competition. The Dean's Cup & Hardt Cup. The round sparked by frequent and point­ Duke team was the winner over teams Dean's Cup featured weeks of compe­ ed questions from the judges, Justice from eleven schools in the Southeast tition among fifty-four second- and O'Connor noted, "You both showed a Regional held at Washington & Lee third-year Duke law students. The fi­ lot of poise and a lot of knowledge of Law School in Lexington, Virginia in nal advocates, Melanie Caudill '91 and the materials. I would welcome you at February. The members of Duke's Ronnie Kann '91, were determined the Supreme Court." winning team, all second-year law stu­ just days preceding the final argument The final round of the Hardt Cup dents, were Ann Billings, Brad Cope, on February 17 before Justice Competition for first-year students Kari Dohn, Marcella Larsen and O 'Connor and United States Circuit was argued by Glenn Sarno and Kristen Scheffel. The issue in this 38 DUKE LA W MA GAZINE

tional Competi­ cess-particularly Therence's winning tion, featuring the Best National Oralist our of over 158 teams, 350 advocates!" Pickett and National Moot Court Competi­ Allen placed tion on Bioethics and the Law. This Third Overall national competition was sponsored by behind teams and held at Georgetown Law School from George­ in March. Over twenry-five teams town and the from around the country competed in University of the competition which was modeled Georgia. on an actual right-to-die case. The Pickett was competition consisted of three prelimi­ named the Best nary rounds, the semi-finals and the Oralist of the final round. The final round was The judges and advocates in the 1990 Dean 's Cup Competition were (from left) , Judge Jon O. Newman, Melanie S. Caudill '91 , Associate Justice Sandra Day O'Connor, Ronnie National Com- video-taped and broadcast on C-Span. Kann '91 , and Judge Richard D. Cudahy. petition. The Duke team consisted of Colm The issue Connolly '91 and Stan Gibson '9l. year's Jessup Cup concerned interna­ briefed and argued in the regional and They placed Second in the Overall tional environmental law and national competitions centered around Competition, losing to the team from Antarctica. whether a race conscious tenant selec­ the University of Little Rock-Arkansas. At the regionals, the Duke team tion plan implemented by a ficticious They also received an Honorable came in First in Combined Written city violated the Equal Protection Mention for Best Brief. Brief/Oral Scores, came in Second for Clause of the Fourteenth Amendment Next spring will be an even busier Best Brief, and won two speaking and/ or Title VIII of the Civil Rights time for students involved in moot awards (Best Oralist-Kristen Scheffel; Act of 1968. Each member of the team court activities, as the Law School will Honorable Mention Best Oralist­ was required to argue both sides of his host the initial Rabbi Seymour Siegel Ann Billings). Duke's team also won respective issue. Pickett argued the Moot Court Competition. This com­ ,the regionals in the 1989 competition. constitutional claim and Allen argued petition, established by a gift from Although Duke's team did not pro­ the staturory claim. Allen noted that Allen G. Siegel '60, will focus on an ceed to the final round of oral argu­ "it was particularly exciting to compete ethical issue and will feature teams ments in the World Championships, against students from other national from sixteen ABA-accredited law their brief was awarded the the Alona and regional institutions and to come schools. E. Evans Memorial Prize for Fourth away with such a tremendous suc- Place in the World Competition. The brief now moves on to the next round of judging. Frederick Douglass Civil Rights Moot Court Competition. Therence Pickett '91 and Claude Allen '90 rep­ resented Duke at the 14th Annual Na­ tional Frederick Douglass Civil Rights Moot Court Competition in Detroit, Michigan in March. Pickett and Allen won the right to compete in the na­ tional competition by taking First Place in the Regional Competition held at the University of Georgia at Athens in mid-February. The team not only took First Place Overall, but also received awards for Best Overall Brief The Honorable Henry E. Frye of the North Carolina Supreme Court (center) judged the final round of the Hardt and Best Respondent Brief. In the Na- Cup Moot Court Competition between Carmela Edmunds '92 (left) and Glenn Sarno '92 in April .

40 D U K E LAW MAG A Z 1 N E

Duke LaW" Alufllni On the Bench

or some law students, spring se­ ofFlorida from 1970 to 1975. He was Duke Law Alumni Judges mester at Duke Law School is a named ChiefJudge of the Eleventh Cir­ This list of currently sitting judges was compiled F time to live one of their most cuit last fall. from records in the Law School Alumni Affairs secret ambitions-to be a judge. Black­ Tjoflat was the partner in charge of Office. Please let us know if there are additions or revisions that should be made to our records. robed second- and third-year Moot litigation at a large law firm in Jackson­ The persons interviewed for the accompanying Court Board members with responsibil­ ville, Florida in June, 1968 when col­ article represent only a cross-section of Duke ity for judging the Hardt Cup and leagues urged him to consider filling an Law alumni judges. The author appreciates the Dean's Cup Moot Court competitions unexpected vacancy on the Fourth Judi­ time these alumni spent calking with her and conspicuously occupy the halls, class­ cial Circuit of Florida. Although four only regrets that she could not talk with all of Duke's alumni judges. rooms and courtrooms on any given and a half years remained in his prede­ weekday evening in February and cessor's term, Judge Tjoflat was re­ 1941 March. For most, it is the only time quired to run in the next general elec­ Eugene A. Gordon Senior Judge, us. District Court they will have the opportunity to expe­ tion in November of that year. As a Re­ Middle District ofNorth Carolina rience the power, intellectual challenge publican candidate in a predominantly and leadership that comes with the Democratic area, he expected that he 1947 Henry A. McKinnon, Jr. honor of wearing that distinctive black would be returning to private practice Emergency Judge, 16th Judicial District robe. For others, a combination of hard following the election. After running North Carolina Superior Court work during the course of their careers unopposed in both the primary and the Jonathan Z. McKown and luck may result in a future opportu­ general election, however, he decided to Judge, 7th Judicial Circuit nity to sit as a judge in one or more of stay on the bench. "The idea of sitting South Carolina Circuit Court the many courtrooms in the United on the bench was an intriguing one. Eugene H. Phillips States. Opportunities like that don't come Associate Judge North Carolina Court ofAppeals Indeed, Duke Law School graduates when you want them. And at the time, have a good chance of distinguishing I could afford to make the financial sac­ 1948 Ray Leonard Brock, Jr. themselves in the judiciary-around rifice because my children were only Retired ChiefJustice (serves by assignment) 100 alumni are currently sitting on a seven and ten years old." Supreme Court of Tennessee bench. Recently, some of these alumni Tjoflat was appointed to the U.S. Hollie Conley shared their insights into this area of the District Court for the Middle District Judge, 31st Judicial Circuit legal profession with the Duke Law of Florida in 1970, and was elevated to Kentucky Circuit Court Magazine. In general, the judges special­ the Court of Appeals by President Ford William W. Daniel ized in litigation after graduation. For in 1975. Tjoflat says he has no plans to Judge, Atktnta Judicial Circuit most, the opportunity to become a give up his life tenure in the near future. Superior Court ofGeorgia judge was not so much a part of a par­ "This is a very challenging and interest­ A. William Sweeney Justice ticular plan, but more of a fortuitous ing position because of the variety of Ohio Supreme Court happenstance. With very fewexcep­ legal problems that I face." John M. Turner tions, our alumni judges find their work Disposing of the massive number of Judge, 11th Judicial Circuit rewarding from an intellectual as well as cases is the biggest challenge facing Florida Circuit Court civic perspective. Most agree, however, judges today, Tjoflat feels. "The volume Dan Edward Walton that judicial salaries are low and the of litigation has grown at a geometric Senior Judge, 178th Judicial District caseload can be overwhelming. rate, putting a lot of pressure on judges Texas District Court to decide many cases. The courts have 1949 Federal Court Judges scarce resources and, in order to face Walter Heter Butz Gerald B. Tjoflat '57 has served as a this challenge, society must settle cases Municipal Judge Bellevue, Ohio Municipal Court judge in the U.S. Court of Appeals through other means and only try nec­ Hollis Monroe Owens, Jr. since 1975 (on the Fifth Circuit from essary matters in the courthouse." Resident Judge, 29th Judicial District 1975-81, and on the Eleventh Circuit In addition to his judicial activities, North Carolina Superior Court since 1981), having served on the U.S. Tjoflat has sought to improve the legal District Court for the Middle District system by serving in professional organi- VOL U ME 9 , NO.1 41

when he joined with James B. Stephen another lawyer, Potter judge-at-Large South Carolina Circuit Court had a successful solo practice in areas such as 1950 civil litigation, pension Robert L. Clifford Associate justice and profit sharing, real New jersey Supreme Court estate, securities and tax Fred Charles Pace law. He was appointed ChiefAdministrative judge to the bench in 1981 Board ofClaims, Commonwealth ofPennsylvania by President Reagan. Robert D. Potter Potter describes Chiefjudge, Us. District Court himself as an "even­ Western District ofNorth Carolina handed" judge, who Luther Perry Shields judge strives to ensure that United States Tt1.X Court every case receives full James B. Wolfe, Jr. consideration and that Chiefjudge, Us. Bankruptcy Court every decision will be Middle District ofNorth Carolina informed and fair. He 1951 advises the attorneys James J. Booker who appear before him judge, 21st judicial District A to take time to conduct North Carolina Superior Court careful research and to George E. Orr think about a case be­ judge, 11 th judicial Circuit Florida Circuit Court fore filing a lawsuit. The Honorable Robert D. Potter '50 Charles E. Villaneuva Pointing to the fact judge, Vicinage Five that fifty to sixty per­ New jersey Superior Court zations, including two American Bar cent of the cases on the civil docket are 1952 Association committees: the Committee settled after calendar, Potter encourages James S. Byrd on Implementation of Standards of the use of various settlement techniques judge, 3th judicial Circuit Criminal Justice and the Committee on in his courtroom. When cases are not Florida Circuit Court Discovery, Section of Criminal Justice. settled, he views dismissal and summary FrankJ. Montemuro, Jr. He actively nurtures his commitment to judgment as viable options in clearing judge civic improvement through his church the docket of cases that lack justiciable Superior Court ofPennsylvania and the Boy Scouts of America. He also merit. He firmly believes that the pre­ Jay Walter Myers President judge, 26th judicial District serves the Law School as a life member trial resolution of issues is an advantage Pennsylvania Court ofCommon Pleas of its Board of Visitors. In 1987, the both to the litigant and to the court. Peter B. Scuderi Law School honored Tjoflat for his de­ Despite Potter's efforts to streamline Magistrate, Us. District Court votion to public service with the the number of cases in the court's Eastern District ofPennsylvania Charles S. Murphy Award. docket, he points out that the caseload Thomas W. Seay, Jr. Robert D. Potter '50 serves as Chief continues to increase. He feels this is Senior Resident judge, Division Three Judge of the U.S. District Court in the due to the increasing number of crimi­ North Carolina Superior Court Western District of North Carolina, nal cases, particularly drug offenses, civil 1953 after following a fairly unique career and criminal cases under the RICO Calvin Earl Smith path. After graduating from Duke Law statute, and the additional time now judge, 23rd judicial District Pennsylvania Court ofCommon Pleas School, Potter took his father's advice required under the new federal sentenc­ Richard C. Webster "not to work for anyone else" and ing guidelines. However, he warns that Municipal Court judgelRefiree opened his own practice in Charlotte. "no one should take a position like this State ofColoratla He recalls feeling "more prepared to thinking he or she can retire to an easy 1954 argue a constitutional issue before the life. I've probably worked harder here Paul Game, Jr. United States Supreme Court than I than when I practiced law." Magistrate, US. District Court was to file a simple lawsuit." With the Potter recognizes that the legal pro­ Middle District ofFlorida exception of five years in the 1950s fession is quite different now than when 42 D U K E LAW MAG A Z 1 N E

he graduated from Duke Law School. judge, according to Torres, is the re­ ing international corporations. In 1981, For a solo practitioner of the "old striction on outside activities by time Brown became general counsel at the schoo!," he considers his current posi­ constraints. Before returning to the U.S. Government Printing Office tion to be a sanctuary in a time of in­ bench, Torres enjoyed teaching legal where he served for two years before creasing specialization. He sees the fed­ courses to undergradutes and para-legal being appointed to serve as chief coun­ eral bench as an extension of the general students at local colleges. Unfortu­ sel of the Maritime Administration at practice of law. "I enjoy the indepen­ nately, he no longer has time for this, the U.S. Department ofTransporta­ dence and variety of legal problems I but he manages to serve as a member of tion. He received his commission to encounter." He says that "service is the boards of several charitable organi­ serve on the U.S. District Court in probably the chief reason [that] anyone zations, and he enjoys speaking to civic 1985. would want this position," and he sin­ and school groups. Torres also has fond According to Brown, one of the cerely believes a person can make a dif­ memories of attending occasional most attractive things about his current ference sitting on a judicial bench. alumni meetings and participating in position is that "you never get into a rut Two graduates from the Class of Moot Court Board activities at the Law on the federal bench. You could very 1968 also sit on United States district School. easily have a patent case one day, a drug courts-Ernest C. Torres in the District Garrett Brown agrees with his case the next day, and a medical mal­ of Rhode Island and Garrett E. Brown, former Law School classmate and fellow practice case the day after that." Jr. in the District of New Jersey. Torres U.S. District Court colleague that com­ had five years of prior judicial experi­ ing back to Duke to work with the stu­ Federal Magistrates ence on the Superior Court of Rhode dents is a rewarding experience. Brown A number of Duke Law School Island (1980-85) before returning to has enjoyed judging oral arguments in graduates sit as federal magistrates. Peter the bench as a federal district judge in the commercial practice clinical course Scuderi '52, is U.S. Magistrate for the 1988. Previously an assistant vice presi­ at the Law School since 1987. He finds U.S.D.C. for the Eastern District of dent of staff counsel operations for the that he is always delighted with the Pennsylvania. "The judiciary is the Aetna Life and Casualty Insurance preparation and performance of the stu­ epitome oflegal practice. I think that Company, Torres does not think that dents in the course. "I am glad to see any lawyer, particularly a litigator, as­ lawyers prepare to become judges, al­ that the Law School is providing such pires someday to serve on a bench," says though he believes that many have a realistic and challenging courses. This is Scuderi when asked what attracted him yague sense that this is something they the kind of practical approach to teach­ to become a magistrate after twenty-two would like to do at some time in their ing students about the law that I would years of private litigation experience. careers. expect from a school like Duke." Scuderi points out that the biggest He notes, "I have always had a desire Brown's experience in several areas difference between practicing as a law­ to be in public service. As a judge, I of the legal profession make him a reli­ yer and sitting as a judge is "the client. have the opportunity to make a useful able source for advice on what prepara­ You are still very much involved in the and worthwhile contribution. I also en­ tion is helpful to be a practicing attor­ law, but as a judge you are representing joy dealing with questions of impor­ ney and an active judge. "Any trial law­ the interests of the people. A lawyer is tance. The intellectual challenge and the yer is probably interested in sitting on a an advocate and must look at the independence and opportunity to do bench. The best preparation is the client's case from a partisan view. The what I think is right are some of the lawyer's total experience." Brown's role of the adjudicator is much differ­ most positive aspects of being a judge." preparation prior to his appointment to ent; the judge has to make the final de­ When cases come to the U.S. District the U.S. District Court included trial cisions with regard to the rights and Court in Rhode Island, they are as­ and appellate experience in the civil and contentions of two opposing parties. signed to a "basket" based on the sub­ criminal areas. The greatest challenge for the judge is ject matter of the predominant issue in After graduating from Duke, Brown to never become indifferent to any case. the case. Then each judge draws his in­ was a law clerk in the Supreme Court of There are small cases, but every case is dividual docket at random. "Categoriz­ New Jersey, and served as an assistant the most important one to the litigant. ing the cases works well because the sys­ U.S. attorney for the District of New Judges have to remind themselves of tem maximizes the chance that each Jersey. While in that office, he was ap­ that constantly." judge will receive his share of antitrust, pointed deputy chief of the criminal Donald Dietrich '61 was appointed criminal and constitutional cases, for division and later executive assistant U.S. Magistrate to the U.S.D.C. in the example." U.S. attorney. Brown spent more than Middle District of Florida when that One of the drawbacks of being a eight years in private practice represent- position was created in 1970. After ten VOL U M E 9, NO. 1 43

years of private practice, he welcomed gan for two years before entering pri­ C. Anthony Harris his appointment as an opportunity to vate practice. In 1984, he was ap­ judge, 4th judicial Circuit serve the public. One of the most re­ pointed as a part-time magistrate split­ South Carolina Circuit Court warding benefits of his job is that he is ting his time between the court and his Robert L. McFadden able to maintain contact with judges own practice for six months until a full­ judge, 16th judicial CirCltit South Carolina Circuit Court throughout Florida who also graduated time magistrate position was approved. from Duke Law Schoo!. Dietrich does Binder was eager to return to the 1956 not have to go too far to maintain such judicial chambers because he "truly en­ David H. Allard ChiefAdministrative Law judge contacts. When he was appointed u.s. joyed the opportunity to figure Out the Arizona Department ofHealth 6- Human Services Magistrate in 1970, Paul Game '54 was 'right' decision, not what the best thing Harold Bernard, Jr. also appointed to the same bench. is for a particular client. I had no idea Administrative Law judge Game sits in the U.S. Courthouse in how much I enjoyed that perspective National Labor Relations Board Tampa, and will retire this summer. until I sat as a part-time magistrate and Harley B. Gaston, Jr. When both men were appointed twenty applied that process of thought again. I judge, 27th judicial District years ago, Gerald Tjoflat '57 was a U.S. missed the endeavor to come up with North Carolina District Court District Court Judge in the Middle Dis­ the objectively 'right' outcome in my Vmcent T. Hall judge, 2nd District trict of Florida. practice." Binder recognizes the chal­ Florida District Court ofAppeals Currently, Dietrich says that he en­ lenges that come along with his respon­ Gary S. Stein joys keeping in touch with Phillip sibilities. 'This job is not easy. Federal Associate justice Hubbart '61, ChiefJudge of the District law makes for hard cases. It is not easy New jersey Supreme Court Court of Appeals of Florida, and Rich­ to sentence people found guilty after a 1957 ard W. Kreidler '61, County COutt criminal trial. It isn't supposed to be Gerald Bard Tjoflat Judge in Jacksonville. Dietrich's memo­ easy," he says, "and ifit ever gets easy, I Chiefjudge, us. Court ofAppeals ries of Hubbart and Kreidler go back a should think twice when I do it." for the Eleventh Circuit long way. While at Duke, Dietrich 1958 roomed with Hubbart during their sec­ 'Special' Courts Richard L. Denison ond and third years of Law School when Luther Perry Shields '50 never Administrative Law judge they were both editors of the Duke Law thought he would one day serve as a National Labor Relations Board JournaL Dietrich and Kreidler were fra­ judge on the U.S. Tax Court. With the FrederickA. Thayer, III Chiefjudge, 4th judicial Circuit ternity brothers at SUNY-Buffalo and exception of five years that he spent Circuit Court ofMaryland roommates during their first year of Law working for the Internal Revenue Ser­ Schoo!. vice, Shields dedicated twenty-five years 1959 Robinson O. Everett "It is a small world, and that is one of his career to the successful practice of Chiefjudge of the nice things about Duke. It is a tax law in Knoxville, Tennessee. How­ Us. Court ofMilitary Appeals good three years of your life to make ever, in 1981, three vacancies opened Charles E. Plunkett relationships and friendships that will on the U.S. Tax Court and it seemed Chancellor, 13th judicial Circuit grow," says Dietrich, whose son, Paul, that everyone from Washington, DC to Arkansas Chancery Court graduated from the Law School this Tennessee thought that Shields would 1960 spring. He feels that "it's not just a co­ be the perfect choice for one of the Robert B. Bell incidence that all of us have become vacancIes. Administrative Law judge, Office ofHearings 6- Appeals judges in the State ofFlorida. I think we "I knew the people who would be Social SeCltrity Administration, Atlanta share a temperament that lends itself influential in making the appointment. Eugene S. Harris well to the judiciary." They knew my qualifications and, well, Chancel/or, 11 th judicial Circuit West Charles Binder '74, U.S. Magistrate one thing led to another and I was ap­ Arkansas Chancery Court in the U.S.D.C. for the Eastern District pointed by President Reagan to the Maynard F. Swanson, Jr. of Michigan, seems to share this tem­ U.S. Tax Court." Shields says that the judge, 6th judicial Circuit perament, as he says "I enjoyed practic­ service and intellectual challenge of this Florida Circuit Court ing as a lawyer, but perhaps I have a pre­ job "provides a satisfactory way to top Newton C. Taylor disposition to adjudication rather than off a career that has centered on tax President judge, 20th judicial District Pennsylvania COltrt ofCommon Pleas ligitation." After graduating from Law law." School, he clerked on the U.S. District Unlike the typical law student, Court in the Western District of Michi- Shields says that tax was one of his fa- 44 DUKE LAW MAGAZINE

with me from Wash­ In his last year on the bench, ington, DC." Reynolds presided over the PTL bank­ In December ruptcy case in Greensboro. "From a le­ 1988, Rufus W. gal standpoint, the PTL case was rou­ Reynolds '33, U.S. tine. In terms of public impact, it paled Bankruptcy] udge for beside large corporate bankruptcies. It the Middle District was a nightmare," says Reynolds. "I of North Carolina, have never heard anything like it be­ retired after forty-two fore-so emotional, so explosive, so years on the bench. publicized." When Reynolds was as­ When he retired, he signed the PTL case in] une 1987, he was the longest-ten­ had high hopes for the survival of the ured among the ministry. By the end of the following nation's 284 bank­ year, he was discouraged and cynical. ruptcy judges. Dur­ He likes to share the story of the ing his career he woman who called the bankruptcy handled over 40,000 court to ask if Reynolds was a Christian. cases, the most "I said, 'You tell her I was when I widely-known being started this case, but now I plead the the reorganization of Fifth Amendment.'" Jim and Tammy Bakker's PTL Minis­ Administrative Law Judges try. Two other former Duke Law School The Honorable Luther Perry Shields '50 After graduating classmates share the honor of being fed­ from the Law School eral administrative law judges. David H. in 1933, Reynolds set Allard '56 is the ChiefJudge in the Of­ vorite subjects. "Charles Lowndes was up a private practice in Greensboro, fice of Hearings and Appeals, Social Se­ my tax professor. I remember that he where he specialized in bankruptcy mat­ curity Administration under the De­ was an enthusiastic teacher of federal tax ters. "It wasn't because I wanted it," he partment of Health and Human Ser­ law. Tax legal work is drudgery for a lot says. "It was because there just wasn't vices in Tucson, Arizona. Harold Ber­ of people. It's not the least bit colorful anything else going on." World War II nard '56 is an administrative law judge like criminal or divorce cases. I enjoy interrupted his practice for a few years with the National Labor Relations tax because in practice and as a judge and when he returned from "foreign Board (NLRB) in Washington, D.C. you have to work our a reasonable solu­ duty" in Texas, Reynolds found a Allard remembers that he was at­ tion as soon as possible for business reinvigorated Greensboro. Instead of tracted to the idealism involved in the people who want to get back to manag­ returning to his own practice, Reynolds system of justice when he started to ing their businesses." took a job as the "bankruptcy referee" consider the possibility of becoming a By law, the U.S. Tax Court must try in the Middle District Court, and later judge. When he left the staff of the In­ cases in locations that are convenient to became North Carolina's first federal terstate Commerce Commission in the taxpayer, which suits Shields just bankruptcy judge. 1967 to take his first administrative law fine. Like many younger professionals Reynolds admits that the values that judge (AL]) position at ICC, he "ap­ who find themselves balancing careers he learned in the Depression still carry proached it romantically." In his with long-distance relationships, Judge much weight with him. "After you see twenty-three years of experience as an and Mrs. Shields find themselves in a so little money and so many problems, AL], some of his idealism, he says, "has similar position after almost forty years you can't forget that overnight." been smashed, but not all of it." of marriage! "My wife has a family busi­ Reynolds believes that preservation, not Allard says that he practices "mass ness and home in Knoxville and I rent liquidation, is what good bankruptcy justice" in his current position, nor­ an apartment in Alexandria, Virginia. jurists are abour. "They hold together mally having fifty or sixty cases on his Whenever I travel to the southern part institutions whenever possible, they docket each month. According to of the country I go through Knoxville provide fresh starts. And they do this Allard, "one of the hardest things to do and when I travel up north or out west, regardless of the sleaziness that created in this office is to transmit the feeling to Mrs. Shields joins me there or travels the money mess in the first place." the parties that their experience in the V O L U M E 9, NO. I 45

courtroom has been fair. There is no a tremendous respect for the bench 1961 time for reflection and sometimes the "marvelling at the magnificent way they Donald Paul Dietrich Magistrate, Us. District Court courtroom is like a play in which every­ disposed of their heavy case loads." Middle District ofFlorida one knows his lines." He believes that it After about ten years as a trial attor­ Phillip Arthur Hubbart is critical for judges to "take time to re­ ney, "along came the opportunity to Chiefjudge , 3rd District flect on whether what we are doing fits apply for an ALJ position when the Florida District Court ofAppeals into the larger scheme. It is important NLRB let it be known that, as the Ma­ Richard W. Kreidler to ask ourselves 'what type of system of rines say, it was 'looking for a few good judge justice are we providing and is it the men.'" Thus, Bernard began the Duval County Court, Florida best system or are there changes that we lengthy application process for becom­ William Yates Manson should think about and implement?'" ing a federal ALl. He proudly points judge, 14th judicial District North Carolina District Court For Allard, one of the biggest challenges our that appointments to federal ad­ James E. Moore of being an ALJ in the "mass justice" ministrative law judgeships are based judge, 8th judicial Circuit system is to "look at the judges' role solely on merit. If the applicant meets South Carolina Circuit Court from the perspective of the person who the threshold requirement of "at least 1962 uses the final product, i.e., the decision two years of ' in-the-pit litigation' expe­ Peter L. Roda that the judge hands down." He be­ rience within a seven-year time frame, judge, 28th judicial District lieves that judges can make a difference recommendations are sought from ap­ North Carolina District Court in the larger system if they do their best proximately 100 judges and lawyers Herbert Alfred Schaffner and recognize that sometimes it is ben­ with whom the applicant has partici­ judge, 12th judicial District eficial to change set ways of implement­ pated in vigorous litigation." The appli­ Pennsylvania Court ofCommon Pleas ing the law. cant must then pass both written and Leonard Victor Wood judge, 18th judicial Circuit In his last year of law school, Harold oral general examinations, and an ex­ Florida Circuit Court Bernard took a course with the late Pro­ amination before the employing agency. fessor Charles H. Livengood, a former This rigorous process carried our by the 1963 Gerald T. Wetherington solicitor with the Department of Labor, Office of Personnel Management meets Chiefjudge, 11th judicial Circuit and was "struck with a spark of interest two federal government concerns: find­ Florida Circuit Court in labor law." Bernard has been a gov­ ing the most qualified people to serve as 1964 ernment attorney or ALJ with the ALJs, and keeping the ALJ position be­ Kenneth G. Biehn NLRB ever since. He began thinking yond reproach. judge, 7th judicial District about becoming a judge after serving as For Bernard, the reward of being a Pennsylvania Court ofCommon Pleas an NLRB examiner. As an attorney for judge is "the total freedom to approach TedR. Todd the NLRB, he appeared frequently be­ important issues objectively, thor­ judge, 5th judicial Circuit Indiana Circuit Court fore district court judges and developed oughly, and within established legal Thomas G. WJ..Ison Magistrate, Us. District Court Middle District ofFlorida 1965 R. AI1an Edgar judge, Us. District Court Eastern District of Tennessee Robert L. Garrenger, Jr. judge, Vincinage Eight New jersey Superior Court Thomas C. Kleinschmidt judge, Division One Arizona Court ofAppeals 1966 Alexander B. Denson Magistrate, Us. District Court Eastern District ofNorth Carolina

A courtroom at the Law School is decorated with photographs of alumni judges. 46 D U K E LAW MAG A Z I N E

guidelines so that law and justice are courtroom without a worry in the president of the National Association of served. The work- load for the attorneys world. My attention is focused on the Women Judges. "It is a particularly in­ in the field offices is tremendous. As an evidence that is presented to me in the teresting circumstance to have come ALJ for the NLRB I can enjoy the course of the hearing. My main respon­ onto this court at a relatively young age luxury of savoring the facts of my sibilities are to conduct a fair hearing when there really is only one court in cases." and to make proper rulings. Of course, the country that is higher than a state One of the case management tech­ then I spend a lot of time writing my supreme court. But as Justice Sandra niques used quite often by Bernard is own decisions." Day O'Connor said about getting ap­ the telephone settlement conference. Denison firmly believes that many pointed, it is like getting struck by light­ He was one of the first ALJs to success­ cases are better settled than tried, espe­ ning, you just can't plan for it!" fully use this case management tool. cially in the labor law area, as labor dis­ Durham stresses the complexity of Though he believes that it may be ten putes tend to be very emotional and the her lifestyle, its harrowing pace, and its or fifteen years before the U.S. govern­ views held by both parties are deep­ brief moments of relaxation. She ad­ ment provides the means to conduct seated. He believes that labor and man­ mits that it is not for everyone. She hearings by way of video-teleconferenc­ agement will work better together in the works together with her four children ing, he would be in favor of such a sys­ future if they can reach a mutually and pediatrician husband to make their tem. In addition to helping him man­ agreeable resolution through negotia­ system work. Durham is concerned age the ever-increasing caseload he sees tions. In such situations, the role of the with the balance that is critical to her each year, such conveniences provide NLRB ALJ is to ensure that the terms varied responsibilities on the bench, him with more time to pursue his out­ of the settlement are within the statu­ too. She considers "balancing the man­ side interests such as his family and the tory proVISIOns. agement and administrative interests 10K road races and marathons that he and concerns with the actual decision­ participates in each year. State Court Judges making process" to be the greatest chal­ At the time that Bernard was gradu­ Christine Meaders Durham '71, an lenge that she faces on the bench. "This ating from Law School and preparing to Associate Justice on the Utah Supreme is more unique to judges who sit on join the NLRB as a legal assistant, Rich­ Court, says that she was "probably courts of last resort because, among ard L. Denison '58 was taking his first somewhat unusual in that I had judicial other things, our court has responsibil­ labor law class with Professor Livengood ambitions, although I kept them a se­ ity for rule-making and supervising the at Duke. More than thirty years later, cret, even while I was in Law School. bar. You can end up spending too much Bernard and Denison are both adminis­ When I took trial advocacy at Duke I time managing and too little time actu­ trative law judges with the NLRB in used to enjoy it most when I got to play ally participating in the decision-mak­ Washington, DC. Like Bernard, the judge and do the evidentiary rul­ ing process which is, after all, the main Denison claims that Professor Liven­ ings. I enjoyed Moot Court and, again, reason we exist. Fortunately, there isn't good inspired him to pursue a career in always enjoyed more the opportunities a single aspect of my job that I don't the labor law area, and he has not been when I got to judge rather than to advo­ really enjoy a great deal, and it is quite a disappointed with his choice. cate. But this is not the kind of ambi­ privilege to be torn between so many After presenting cases to some very tion that one discloses in public because engrossing and worthwhile activities." distinguished judges throughout the the process of becoming a judge is too Gary S. Stein '56 has fond memories United States while he was a field attor­ chancy. There is no well-defined career of "the old fashioned law school classes" ney, trial attorney and supervising attor­ track that can take you to that end." when there were less than fifty Duke ney with the NLRB, Denison started to Durham became the first woman Law School graduates each year. How­ think about becoming a judge. "This appointed to the Utah Supreme Court ever, he doesn't recall having had a par­ was a natural progression for me. I be­ in 1981. This was perhaps the most ticularly strong desire to become a judge lieved that as a judge I would have the pretigious "first" in a career that has when he was a law student. It wasn't opportunity to put my considerable ex­ witnessed the setting of new standards until during the twenty-six years that he perience to good use and to make a sig­ and opportunities for women in many was in private practice and government nificant contribution to the NLRB." ways. In 1978, Durham was the first service that he began preparing for a According to Denison, "it is very enjoy­ woman appointed to the Utah District judicial appointment. able to be a judge after having had the Court, and in 1980 she was elected After graduation, Stein concentrated burden of prepping witnesses as an at­ president of the Utah District Judges on antitrust and financial issues as an torney. As a judge I can walk into the Association. She served in 1986-87 as associate and partner in a Manhattan V O L U M E 9, NO. 1 47

served on a panel at the 1967 Law School this spring H. William Constangy Judge, 26th Judicial District to discuss judicial North Carolina District Court clerkships with inter­ Robert G.M. Keating ested students. Administrative Judge Thomas C. Criminal Court ofthe City ofNew York Kleinschmidt '65 sits Malcolm B. Street, Jr. on the Arizona Court PresidingJudge, 7th Judicial Circuit of Appeals and enjoys Alabama Circuit Court his work immensely. Dennis D. Yule Judge, Benton & Franklin Counties After spending more Washington Superior Court than twenty-five years in the legal community 1968 Garrett E. Brown, Jr. in Arizona he boasts of Judge, Us. District Court his respect for the bar District ofNew Jersey because "the Arizona Ernest C. Torres bench doesn't have cor­ Judge, Us. District Court ruption. The system District ofRhode Island has a good clean tradi­ 1969 tion and works the way David E. Foscue it should." Judge, Grays Harbor County Kleinschmidt discov­ Washington Superior Court ered early in his career L Alan Goldsberry Judge, Athem County that he wanted to be­ Ohio Court ofCommon Pleas come a judge. "I was Michael J. Kane chomping at the bit Judge, 7th Judicial District The Honorable Gary S. Stein '56 about not getting into Pennsylvania Court ofCommon Pleas court often enough and John Dean Moxley, Jr. law firm. After nine years in New York, one of my colleagues suggested that I Judge, 18th Judicial Circuit he began a small practice in New Jersey, consider becoming a judge. I left private FloritUt Circuit Court specializing in representing clients be­ practice to get more trial experience as Dale B. Ramennan Judge, King County fore government agencies. Before his an assistant federal public defender and Washington Superior Court appointment to the New Jersey Su­ began to prepare for the bench." preme Court, he served as municipal According to Kleinschmidt, Arizona 1970 J. Allen Walker attorney for Paramus, counsel to the follows the merit-based "Missoula Plan" Judge, 20th Judicial District New Jersey Election Law Revision when selecting judges. After completing Virginia General District Court Commission, attorney for the Teaneck a lengthy and probing application and 1971 Board of Adjustment, and New Jersey's filing it with the Supreme Court, a Christine M. Durham Director of Policy and Planning. He nine-member bipartisan commission Associate Justice ascended to the bench in 1981, a job he nominates three candidates for each po­ Utah Supreme Court says "is exceptionally challenging and sition to the governor who finally ap­ Douglas B. Morton provides a high level of satisfaction." points one individual to the bench. Jok­ Judge Stein has maintained close ties with ingly, Kleinschmidt suggests that the Fulton Circuit Court, Indiana Duke University over the past decades. governor selected him because "I wore 1972 One of his colleagues on the New Jersey him out. I had applied so many times. Robert H. Michelson Judge Supreme Court is another Duke Law Persistence is an important part of my Racine, Wiscomin Municipal Court School graduate, Robert L. Clifford '50, make-up." Kleinschmidt sat on the Ari­ and in the past five years Stein's son zona Superior Court for Maricopa 1973 John Richard Carney, Jr. graduated from Duke University and County for seven years. He found trial ChiefJudge, District 79 one of his daughters, Terri, graduated work "enormously satisfYing" and Michigan District Court from the Law School in 1988. Stein earned a reputation as an excellent trial 48 D U K E LAW MAG A Z I N E

judge. In 1982, he was appointed to the the education process quite early and so Larry J. Rosen Arizona Court of Appeals. He finds the helped to implement the juvenile jury Justice, CriminaL Part ALbany, New York City Court thoughtful analysis required by appel­ program in his courthouse to help late work as rewarding as trial work. young people understand the juvenile 1974 Gerald T. Wetherington '63 has justice system. The students, ranging in Brenda Brown Becton Administative Law Judge been on the 11 th Judicial Circuit Court age from fifteen to eighteen, listen to North Carolina Office ofAdministrative Hearings in Dade County, Florida for more than juvenile eases which come before the Charles Edward Binder fifteen years. In 1983 he was elected court and serve in an advisory capacity Magistrate, u.s. District Court ChiefJudge. One of his most impor­ to Swanson or another presiding judge. Eastern District ofMichigan tant concerns is the on-going education They review the applicable laws and Peter David Webster of the bar and judicial staff. According make recommendations regarding the Judge, 4th JudiciaL Circuit to Wetherington, "if you don't educate adjudication of the case though, of FLorida Circuit Court the bar and staff, you'll live in chaos." course, the judge has the final word in 1975 In order to avoid such a situation, his issuing the court's decision. Allyson K Duncan Associate Judge first act as ChiefJudge was to institute a When he is not in the courtroom North CamLina Court ofAppeals recent-ease-law summary program in hearing eases, Swanson spends a lot of Lola Pearl Maddox which his staff prepares manuals and his time trying to envision a remedy for Associate Judge, 3rdJudiciaL Circuit video-tapes on developments in areas two of the biggest problems that he sees ILLinois Circuit Court such as family, criminal, probate and facing courts today: an increase in Paul Michael Wright juvenile law. Wetherington also ar­ crime and a decrease in judicial re­ Resident Judge, 8th JudiciaL District B ranged for the University ofMiami Law sources. "I look for the courthouse to North CaroLina Superior Court Review to write a digest of legal devel­ become almost entirely electronic," he 1977 opments. His theory is that "the court says. As improved court security and Samuel Peter Feldstein should be on top of the law and mini­ lower legal fees become more important Judge/Surrogate HamiLton County, New York mize its reliance on lawyers who have a and technological devices become less Roberto M. Pineiro particular point of view to present on expensive, Judge Swanson believes that County Court Judge behalf of their client." the days of trials with judges, juries, Dade County, Florida Wetherington's program has re­ lawyers and contestants together in the Henry F. Weber ceived national attention through the same room will be over. Judge, 30th JudiciaL District National Judicial College and his video­ Perhaps the role of the judge will Kentucky District Court tapes are frequently used at national change over the next decade or two. Mary Ellen Williams conferences. The 1988 recipient of the Many of the judges interviewed stressed Administrative Judge Law School's Murphy Award for dedi­ the increasing importance of computers GeneraL Services Administration Board ofContract Appeals cation to public service, Wetherington and audio-visual equipment in their is also committed to educating the gen­ courts and the growing acceptance of 1979 Thomas R. West eral citizenry who become involved in alternative dispute resolurion proce­ Administative Law Judge court matters. For example, each time dures by the bar and bench. It is amaz­ North CaroLina Office ofAdministrative Hearings the court appoints a guardian of prop­ ing that these developments were barely 1980 erry, the guardian is required to watch a discussed when the majority of Duke's Shirley L. Fulton twenty-five minute video and receive a judicial alumni were attending the Law Resident Judge, 26th JudiciaL District A written script of the tape which covers School only twenty or thirty years ago. North Carolina Superior Court pertinent issues. Wetherington takes his Even if the donning of the distinctive Scotty Peck Krob commitment to education seriously at black robe becomes an anachronism in Judge, Grand County home as well. Maybe that is one reason the increasingly depersonalized and CoLorado County Court why when his daughter, Chriss '90, de­ electronic American courtroom, it is 1987 cided to pursue a legal education, she, unlikely that this tradition will disap­ David Thor Bjorgvinsson too, chose Duke! pear as rapidly at Duke Law School. Judge, District Court Reykjavik, Iceland Maynard F. Swanson '60, who sits Moot Court competition will continue on the Sixth Judicial Circuit in Pasco to offer aspiring litigators and judges County, Florida, also has a strong com­ one of the best opportunities to hone mitment to an educated citzenry. their legal skills. Swanson believes it is important to start Debra A. Kelly '90 V O L U M E 9, NO. 1 49

Shaping A-wareness of Environfllental Issues Alumnus Profile of John H. Adams '62

e's cheerful. He's amiable. He's soft spoken. But don't H even think for a moment that these traits diminish his desire to give the environmental movement legal rep­ resentation as good "as [that of] Exxon, Ford, or Norfolk Southern." He is John H. Adams '62, the ex­ ecutive director and co-founder of the Natural Resources Defense Council (NRDC). As the executive director of the NRDC, Adams has helped create "a star in the constellation of environ­ mental organizations," and has been described by fellow environmentalist Douglas P. Wheeler '66 of the Conser­ vation Foundation as "one of the handful of environmental leaders who-since the first Earth Day in 1970-has most helped to shape the nation's awareness of environmental issues, and its responses to them." The father of three children, Adams was John H. Adams '62 recently recognized by Parents Maga­ zine for his leadership in the environ­ The Birth of the NRDC and land use. A final group of teams mental field as one of five recipients of Beginning in 1970, John Adams works on international issues such as the First Annual "As They Grow" parlayed a one-man organization, with a nuclear arms control, international Awards to "recognize Americans who budget of "the good wishes of friends," tropical forestry issues, global warming, daily make a difference in the lives of into a 168,000 member environmental and international banking. While the children." advocacy group with a budget of $16 NRDC does spend some time in court, Thus, it is not surprising that a million. After the passage of twenty the majority of its time is spent working mere seven years after it was founded, years, the NRDC now has forty-five with regulatory agencies, Congress and the NRDC was described in a 1977 attorneys, forty-five scientists, and sixty other legislative bodies, and resolving Heritage Foundation report as "the other employees who work on twenty­ conflicts short of litigation. nation's leading public interest envi­ four different integrated law and science While creating such a diverse organi­ ronmentallaw firm" and as "one of teams, confronting the public health zation, Adams utilized the values in­ the more prominent and effective en­ issues of clean air, clean water, toxic stilled in him while growing up on a vironmentally-oriented organiza­ chemicals, pesticides, and food supplies. dairy farm in upstate New York, as well tions ... currently active in the United The teams also work on natural re­ as skills developed at Duke Law School, States." And given that start, it is not source issues such as energy, forestry, at the Wall Street law firm ofCadwal­ surprising that nine years later the public lands, coastal zone management/ ader, Wickersham, and Taft, and at the Wall Street Journal called the NRDC off-shore oil, protection of species, the U.S. Attorney's Office for the Southern the" shadow EPA." Arctic wilderness, marine mammals, District of New York. Life on the dairy 50 D U K E L AW MAG A Z [ N E

farm gave Adams an appreciation for something involving land and conserva­ our [environmental] goals, raise the outdoors, so much so that he and tion and environmental issues." While money, ... and do all the little things his wife of twenty-six years, Patricia, he did "not have grand ideas about that keep it going." bought their own farm in the same area. what it would do for the world" (and he This does not mean that Adams is Adams' rural upbringing also instilled a still doesn't, he said), Adams did know out of touch with the issues confronting desire to perform "some form of public that he would try to set up an environ­ the environmental movement. Instead, service law or practicing law in a very mental advocacy law firm, not knowing having grown up with the environmen­ rural atmosphere." This desire was rein­ whether his venture would succeed. tal movement, Adams remains in touch forced by his Law School experience, But it did. As the Wall Street Jour­ by"track[ing] these issues as they de­ which "was extremely valuable to [his] nal stated in 1986, "the NRDC has velop." In fact, Adams thinks that "its development as a person." At Duke, grown to be a kind of shadow EPA. It probably harder for somebody to be Adams found a group of people who has influenced laws on air pollution, dropped into the air, water, toxic, food, were very interested in public policy water pollution, toxics, drinking water, pesticides, forestry, [and] land use issues issues, which he feels was "extremely pesticides, nuclear wastes, strip mine [today] as a young lawyer than it is to helpful and ... a real source of pleasure." reclamation, land use, energy conserva­ start off on day one when they're pass­ Thus Adams did not envision himself tion and much more. It's hard to find a ing the acts and [to] be there as they are doing, "nor do I think I am capable of major environmental law it hasn't being passed." This involvement is im­ doing, the traditional practice." shaped within Congress, the courts and portant, said Adams, because the regula­ Yet upon graduation, he, like many federal agencies. And often, the influ­ tory agencies and Congress have "to be other Duke third-years past and ence is profound." In creating this lobbied if you care about your side .... present, headed towards New York as a "shadow EPA" Adams attracted an ini­ You want to have a chance of having young associate. This did not last, for tial grant of $1 00,000 from the Ford your group given equal weight in our although Adams made a lot oflasting Foundation (as well as several others system." While he recognizes that friends, he longed for freedom from the over the course of next ten years) and "there is a lot of merit on the other structure oflaw firm life. "[A]fter the began to mull over what "one could do side," the environmental side "is the first three years of working at the law as a lawyer in the environment field." side I want to be on." firm, which I liked a lot, ... [I knew Soon the question became what "seven Through the early 1970s the NRDC that] it just was not what I was cut out could do as lawyers in the environment and other environmental organizations to do and I knew that I was either going field" as Adams was joined by six Yale had an "us and them" relationship with to leave the practice of law or find Law School graduates, three of whom the business community/corporate something that I could defend .... I did were former Supreme Court clerks. America. But now, in part due to the not want to represent clients' interests Thus, the NRDC was born. group's advocacy, problems are seen as that I didn't have an interest in. And a "collective problems." This, however, lot of the issues were big corporate fi­ Solving "Collective Problems" does not mean that the NRDC and cor­ nancing issues, ... issues that I just had The NRDC began by reacting to porate America approach problems the absolutely no way to relate to in my "one issue at a time: a dam, a road, a same way, said Adams. "There isn't any own personal life. I just didn't want to highway, a forest." This proved diffi­ doubt that depending on what point of do it." cult, since "the litigation is difficult and view you bring to [the problems], you For the moment, freedom was the the issues are difficult, and expensive view them differently. But there is a u.S. Attorney's Office, a fertile litiga­ since [the NRDC] neither could nor recognition now that the problems are tion training ground and a place where did charge for [its] services." Now, as a real, and corporate America and govern­ Adams could actually stand up in court "fully integrated, public policy environ­ ment have a different attitude about and learn how to litigate. At the SONY mental organization" the NRDC ad­ these problems-significantly different office, Adams tried a lot of cases and dresses many issues at a time. In keep­ than they did in 1970 and indeed than worked on organized crime and narcot­ ing with this change, and "to be able to they had in 1980." These ani tudes ics issues. Yet, as Adams realized, "ulti­ have 150 people and five offices and a changed because environmental issues mately [this too] was not going to be a representative in Moscow," Adams now have become more important to the place to stay." Criminal law was not essentially acts as the CEO of a major American public. In turn, the govern­ Adams' life-long ambition and, eight business. "I try to keep up with the ment has been forced to work with en­ years after Law School had ended, business ofNRDC and run the business vironmentalists on developing policies Adams knew that he was "going to do and make sure that we're staying within that address the issues. While Adams VOL U M E 9. NO. 1 51

admits that this "relationship is not al­ tty, are facing? That the communities (despite the lessons of the Exxon Valdez), ways perfect, it is fair to say that there is are facing? What is the timber policy? or on waste reduction in factories. not a week that goes by, and really not a Are we protecting our watersheds? Are Even with a growing environmental day that goes by, that the NRDC is not we protecting our wildlife? And if we movement in the United States and the dealing directly with major corporate are not, then the law students that I am world, and even with the better rela­ officers and major governmental offi­ interested in are going to spend time tionship between environmentalists and cials." figuring out how to stop that policy." corporate America, Adams does not In addition to guiding the NRDC's think that the NRDC or other environ­ advocacy efforts, Adams has helped NRDC's Future mental advocacy groups are the ultimate educate the American public, both as a Over the next fifteen years Adams answer to the environmental problems faculty member at the New York Uni­ sees the NRDC concentrating on global which confront the United States or the versity School of Law and through the warming, arms reduction, energy con­ world. Businesses which control the NRDC itself Adams sees education as a servation, public health in urban centers money used in manufacturing will have vital aspect of the environmental move­ and among the disenfranchised and "to make the decisions that their poli­ ment, because "you've got to under­ poor, natural resource policy issues, cies will be environmental, that envi­ stand the issues. If you don't under­ both domestically and internationally, ronmental goals are equal to profits. If stand the significance of these issues, and population issues. This last focus they don't, they will continue to battle how are you going to be part of the so­ impacts the other four said Adams, be­ on" against nature. Yet, it is economic lution? You've got to understand what cause unless we have an understanding not to pollute for the economic and en­ the options are, so you can tell whether of the dimensions of the worldwide vironmental bottom line is that "what­ or not-when some guy tells you that population problem, "none of [the ever you don't do, you don't have to 'we are doing the best we can'-he is other issues] will make a lot of sense." clean up. The price is ten times as ex­ full of bologna." Further, people who A start for this future activity was Earth pensive to clean up something that you are educated about the facts can feel Day 1990, which Adams hoped would have created than not creating the prob­ comfortable that they are not dealing "develop a whole new generation of en­ lem at all." with unknowns. vironmental players," a development For law students, Adams feels that which is "absolutely critical" because the Jack WAlden '90 "the most important thing in develop­ issues that have been identified thus far ing your feelings about [environmental] are not going to be solved quickly. The issues is what are the facts concerning problems "are too big, and the public these issues, not what are the roles" in and government and corporate America the environmental movement or what are not ready to solve all these prob­ are the exact words of an environmental lems." This lack of willingness to solve statute. What is important is not the problems, said Adams, is reflected in whether you work for a corporate law the weak environmental laws that are firm, the EPA, or the NRDC, but being passed, the reluctance to spend "what are the issues that we, the coun- money on double-hulled tankers 52 D U K E LAW MAG A Z f N E

Litigation Specialist and Dynatnic Teacher Alumnus Profile of Charles l. Becton '69

cholarly judge; hard-working turn to North Carolina, Becton found lawyer; dynamic teacher; caring accepting Dean Latty's offer an easy de­ Sfamily man; and litigation spe­ CISIOn. cialist. Anyone who has met Charles In the fall of 1966, Becton enrolled Becton '69 would agree that it is hard to as the only black studenr in a class of easily characterize this man who has approximately 115 at the Law School. been such a positive force in many are­ Despite his status as the only black stu­ nas. Not only is he a devoted family dent in his class, he found that he was man (he prepares seventy percent of the easily accepted by the other students. family meals), but he is also one of the Perceiving rather differenr conditions most dynamic lawyers in North Caro­ for the black undergraduate population lina. Having only recently returned to at Duke, Becton and two others helped private practice after nine years on the organize the Afro-American Society, the North Carolina Court of Appeals, other predecessor of the Black Student Alli­ attorneys in the state will now have to ance that exists at Duke today for black reckon with Becton (as he prefers to be undergraduates. called) as he returns to what he consid­ In 1968, Becton participated with ers his greatest love-" lawyering, per­ Duke undergraduates in a demonstra­ sonally litigating cases." Charles L. Becton '69 tion which involved a sit-in at the Allen Building. Later, in the spring of 1969, North Carolina Roots Becton notes that when he began just months before he was to receive his Born in Morehead City, on the coast considering law schools, he applied to J.D., Becton accompanied the black of North Carolina, Becton says that he only a handful, and visited only one­ undergraduates in the "occupation" became interested in pursuing a legal Duke. His introduction to Duke evokes of the Allen Building. Although he was career at the early age of nine after a vivid memory: "I had already talked tried and placed on probation by the watching a program on television about to Clark Havighurst about Duke on University for his participation in the lawyers. "I recall nothing about the pro­ what may have been his first recruiting Allen Building take-over, formal crimi­ gram except the feeling I had afterwards trip to Howard. I had also received a nal charges were never pressed, and he that a lawyer could somehow help kind 'I-enjoyed-meeting-you' note from was not barred from continuing his le­ soothe (and I didn't know how) the Clark with a deserved post script indi­ gal education at Duke. In fact, many pains of being a second class citizen in a cating that, contrary to my prediction, law professors, including then-Dean racially segregated society. To my Duke had just beaten Carolina in bas­ Ken Pye and Robinson Everett sup­ knowledge, there were no black lawyers ketball. It was spring break at Howard, ported him in his effons to sit for the in Eastern Nonh Carolina then. There and I had heard nothing from Duke. So bar examination after the North Caro­ were no role models. Indeed, I had I drove up to the Law School one day, lina State Bar asked him to "defend" his never met or even seen a lawyer, black and asked to be shown around." Once actions ifhe wanted to be admitted to or white, at the time." Since then he has he mentioned to School officials that he the bar. been unwavering in his pursuit of qual­ had submitted an application, they ity legal work. He received his under­ were "delighted to show me the Law Choosing a Career graduate degree in 1966 from Howard School. Dean Latty was a wonderful During the summers after his first University, a traditionally black institu­ host. He offered what I then consid­ and second years of law study, Becton tion, where he concentrated in the ered a good financial package right on decided not to interview with the cor­ study of government. the spot." Because of his desire to re- porate or big name firms that were in- VOL U M E 9. NO. 1 53

terviewing students at Duke. He may bers' support, and got his first job as a case imaginable-jay-walking cases, be one of the very few Duke Law gradu­ lawyer. During his year with the kidnapping, rape, and newsworthy ates who never interviewed with a single NAACP, Becton assisted staff attorneys murder cases, domestic cases, personal firm while at Duke. He explains his rea­ working on "substantial civil rights and injury cases, and all types of civil rights soning: "I did not want to be co-opted civil liberties cases." Within months his and civil liberties cases. As Becton de­ or influenced by the big money they name began appearing on briefs he scribes it, "we didn't represent corpora­ were offering; I did not want to take a helped to draft which were filed in the tions; we sued them. We didn't draft chance that my principles would be United States Supreme Court. contracts; we sued on them." compromised." Although several firms Becton assisted in representing the approached him about interviewing The Lawyer & Judge Wilmington Ten, the Charlotte Three with them, he maintained a firm devo­ After his year in New York, Jack and Communist Workers' Party mem­ tion to public service and public interest Greenberg and Julius Chambers con­ bers when the Ku Klux Klan shot sev­ work. Becton spent the summer before vinced Becton to return to Charlotte, eral members during a march in entering the Law School at the Equal North Carolina, not eastern North Greensboro in 1979. He also repre­ Employment Opportuniry Commis­ Carolina where he was raised. Becton sented high school students who were sion (EEOC) and spent subsequent joined Chambers at his Charlotte law expelled because of their involvemenr in summers working for the Department firm which later became Chambers, protests against racism, and he helped of Housing and Urban Development Stein, Ferguson & Becton (currently litigate many employment and school (HUD). He says these jobs were invalu­ Ferguson, Stein, Watt, Wallas, Adkins desegregation cases. able and enriching experiences. & Gresham P A., Chambers having left The third case he tried to a jury may In choosing a job after graduation to become the director and general be his most memorable. Becton con­ from the Law School, Becton wanted to counsel of the Legal Defense Fund, a vinced a small-town Eastern North help black people exercise their legal position he currently holds). This was Carolina jury to acquit his 19-year-old rights under the law. So rather than an arrangement which Becton found black client who shot and killed an un­ choose a job in the corporate law firm fulfilling in every respect-mentally, armed white businessman and reputed environment or as a judicial clerk, philosophically, and personally. In de­ local Klan leader. Racial tensions were Becton went to work for the NAACP scribing the cases the firm handled, so high that Becton, his client, and the Legal Defense and Education Fund, Becton finds himself "hard-pressed to trial judge had to be given State High­ Inc. in New York Ciry, an organization remember what we would not defend." way Patrol escorts out of town and Supreme Court Justice Thurgood The partnership litigated every type of through rwo counties. Marshall helped nuture to prominence. In describing how he obtained his position, Becton relates a funny, but now rypical, story. "During my last year in Law School, I drove nine or ten hours to New York and walked right into the NAACP offices asking to be interviewed." He states that if noth­ ing else, the lawyers there were im­ pressed by his tenaciry and straight­ forwardness in seeking a job. After his interview in New York, Jack Greenberg, director and general counsel of the Le­ gal Defense and Education Fund, in­ formed him that he could have driven to Charlotte-a much shorter distance from Durham-to be interviewed by Julius Chambers, the most respected Legal Defense Fund cooperating attor­ ney. Later Becton made the drive from Durham to Charlotte, obtained Cham- The Becton family, (from left). Kevin , Charles , Brenda, Michelle, and Nicole. 54 D U K E LAW MAG A Z I N E

After ten years in private practice, at Carolina Industrial Commission and In addition to his teaching duties at the young age of thirty-six, Becton was two years as an adjunct professor at Duke and UNC, Becton has been a offered a judgeship on the North Caro­ North Carolina Central University mainstay of the National Institute of lina Court of Appeals. On January 19, School of Law. The Bectons' busy and Trial Advocacy (NITA), where he is a 1981, he was sworn in as one of the active household includes their three highly-rated teaching attorney for the twelve judges on the court. When asked children: Nicole, 16; Kevin, 15; and trial advocacy course taught yearly to about the reception he received from Michelle, 11. practicing attorneys around the coun­ fellow attorneys, Becton states that he Becton has joined the Raleigh firm try. In April 1986, he was chosen as one had state-wide support. After practicing of Becton, Slifkin & Fuller. He is en­ of ten attorneys to demonstrate trial ad­ with a firm that made a reputation of thusiastic about his current practice vocacy skills on an ATLAJ ABA/NITA defending oftentimes controversial cases which is devoted mainly to plaintiff per­ video series tided Winning at Trial In in practically every part of the state sonal injury and medical malpractice June of 1986, he was one of twelve at­ (Becton himself had appeared in courts cases. The firm has made a commit­ torneys selected to demonstrate cross­ in nearly sixty of the 100 counties in the ment to limiting its caseload in an effort examination skills on the ABA/NITA state), many members of the bar were to provide the highest quality oflegal video presentation, Mastering the Art of aware of his skills. Becton had also es­ craftsmanship. Unlike some firms in Cross-Examination. Also in June of tablished a reputation among many of which one attorney's caseload may 1986 he was one of thirty-two attorneys the state's judges as always being number over a hundred, attorneys in selected to demonstrate trial advocacy thoroughly prepared for his cases. the firm Becton joined only represented skills at the Smithsonian Folklife Festi­ As a judge, Becton was also thor­ clients in thirty-fout cases last year. This val in Washington, D.C. Becton re­ oughly prepared-for the oral argu­ year, due to Becton's arrival, he sees the ceived the William J. Brennan, Jr. Trial ments, for the exchanges in conference, number increasing by approximately Advocacy Award in 1988 for his work and for the opinions he authored. "I fifteen cases. in improving the skills of trial lawyers enjoyed my stint on the bench, and I across the country. He is only the sec­ would like to think that I helped im­ Dynamic Teacher ond judge to have been honored by prove the jurisprudence of the state," Becton continues to pursue and im­ such an award. says Becton. He remained on the bench part legal knowledge. In 1986 he re­ In further recognition of his superb for nine years until his resignation in ceived his LL.M. degree from the Uni­ teaching skills, later this summer Becton February 1990, to return to private versity of Virginia School of Law. Since will receive the 1990 Jacobsen Award practice. In finding a replacement for 1976, Becton has taught trial advocacy from the Roscoe Pound Foundation to the vacancy left by Becton, Governor at the University of North Carolina, honor excellence in teaching the skills Jim Martin made a landmark decision where he is now the John Scott Cansler and art of trial advocacy. He was the in appointing another Duke Law Adjunct Professor in Trial Advocacy. In nominee from the Law Schools at both School graduate, Allyson K. Duncan addition, he has been a senior lecturer Duke and Carolina. In recommending '75, the first black woman to serve on in law at Duke since 1980, where he his fellow trial practice teacher for the an appellate court in North Carolina. teaches civil and criminal trial practice. Jacobsen Award, Donald H. Beskind Becton is a partner in a double-law­ Becton's section of trial practice at '77 noted, "In a decade of law school yer family. His wife, Brenda Brown Duke is always one of the most popular and NITA teaching, I have taught with Becton, also a graduate of Duke Law among students, causing a waiting list trial advocacy teachers from allover the School, Class of 1975, is now the every spring when he teaches. Former country. Many are excellent, but none "judge" of the family. She was recently trial practice students describe him as is Becton's equal." The North Carolina appointed an administrative law judge "inspirational," "the best teacher I've Academy of Trial Lawyers has just es­ in the Office of Administrative Hear­ ever had," "superb," "expert communi­ tablished the Charles L. Becton Trial ings for the State of North Carolina. cator," and "dynamic lecturer." Garrett Advocacy Award to be presented annu­ Before her judicial appointment, she Epps '91 echos these sentiments: "He ally to recognize an outstanding teacher served as an attorney with the Durham was very patient with us. He knew how of trial skills in North Carolina. Fit­ City Attorney's Office, Orange­ frightened we all were. We would watch tingly, Becton is its first recipient. Chatham Legal Services and North him lecture and wish we could be like Carolina Prisoners' Legal Services. Her him .... He made it seem like trying a Gretchen R Nelli '91 legal career also includes four years as a case would be fun." deputy commissioner for the North VO L U M E 9 , NO . 1 55

A Hotne-Tow-n Judge Returns Faculty Profile of Judge Robinson O. Everett

er more than ten years on the from then-Dean Joseph McClain with United States Court of Military an invitation to rejoin the faculty at ~Appeals, Chief Judge Robinson Duke Law School and also to become O. Everett is retiring from the court and associate editor of Law & Contemporary coming home. Judge Everett not only Problems. In the almost thirty-five years has a permanent home at Duke Law that have followed, he has made it a School as one of its senior faculty mem­ point, regardless of other obligations, to bers, but he was also born and raised in teach at least one class every semester Durham. His knowledge of both the and to get to know his students. He Law School and the city goes deep into attributes this dedication to the pleasure the area's history. If you ask Judge of having contact with "Duke's extraor­ Everett about almost anyone in the dinary law faculty and outstanding Durham legal community, he has prob­ group oflaw students." ably either practiced with, taught, or Today Judge Everett speaks fondly worked with him or her. If you take a of former students and takes pride in walk with Judge Everett through Dur­ their successes. "My former students are ham, he can point out almost every everywhere and I really enjoy it when I building and tell you its history. tun into them. One afternoon while Judge Robinson O. Everett walking a single block from our court­ A Son of Durham house, I first ran into a former student Judge Everett was born in 1928 in who is an assistant prosecutor, then one Durham's Watts Hospital, now the site At twenty-two years of age, Judge who is a public defender, and another of the North Carolina School of Math Everett began his first law school teach­ who is in private practice! How's that and Science. His parents, Reuben and ing job at Duke. He recalls, "I was the for a Duke Law presence?" Kathrine, were both lawyers. His father youngest person in the class. You can't was one of the first five law students at imagine the discomfort of facing a class The "Supreme Court of the Military" Duke-then Trinity College. And his of students all much older than you. In From 1961 to 1964, Judge Everett mother graduated from the University addition, I was teaching courses I never served as counsel to the Subcommittee of North Carolina Law School and be­ had taken in law school and was the on Constitutional Rights of the Senate gan practice in I 920-the same year faculty advisor as we started the Duke Judiciary Committee, and in that capac­ she won the right to vote. Law JournaL " ity he contributed extensively to the Judge Everett grew up in Durham Judge Everett almost breathed a sigh preparation of legislation finally enacted and after graduating from high school of relief when, after a year's teaching, he as the Military Justice Act of 1968. In in 1943, attended Phillips Exeter Acad­ was called to active duty in the Air 1979, Judge Everett was selected by a emy and the University of North Caro­ Force during the Korean War. He nominating commission to serve a one­ lina. He later transferred to Harvard served in the Judge Advocate General's and-a-half year unexpired term on the where he became a Wendell Scholar. Department and upon release from ac­ U.S Court of Military Appeals. He He graduated from Harvard magna cum tive duty became a commissioner of the was then appointed by President Carter laude in 1947, then entered the Harvard U.S. Court of Military Appeals. He re­ and confirmed by the Senate. On April Law School from which he graduated mained in the Air Force Reserve until 16, 1980 he was sworn in and, at the magna cum laude in 1950. In 1959, 1978, when he retired as a colonel. same time, designated Chief Judge. Judge Everett received an LL.M. degree In the winter of 1956, Judge Everett The court now has three judges, with from Duke. In sports, Judge Everett was in private practice in Durham and two additional judges to be added in says he cheers for both Duke and Har­ had just completed his text book Mili­ October. The court reviews criminal vard, but when Duke plays Harvard he tary Justice in the Armed Forces ofthe cases tried under the system of military roots for "a merciful slaughter." United States. He received a phone call justice. Ofren it is referred to as "The 56 D U K E LAW MAG A Z [ N E

Supreme Court of the Military." the first major institution to implement Returning to Duke In his new position, Judge Everett mandatory drug testing and allow use On September 30, Judge Everett is found a "challenge and an opportunity of the evidence obtained for criminal scheduled to retire and become a Senior to write judicial opinions on some top­ prosecutions. One out of every three Judge of the United States Court ofMili­ ics about which I had previously written cases that now comes before the court tary Appeals. He points out that this sta­ law review articles." His first concern, involves drugs and many convictions tus is different from that of a senior judge however, was not with opinion writing are based heavily on positive drug tests. on Article III courts and that he will be in but with what he calls "problems affect­ According to Judge Everett, his court a position similar to that of a "reserve of­ ing the health of the court as an institu­ probably was the first to consider in de­ ficer." This will enable him to engage in tion." When first ascending to the tail the search and seizure issues posed non-judicial endeavors. bench, Judge Everett figured he would by compulsory urinalysis. After a hiatus of more than a decade, have little more than a year to bring the Some of the cases heard by the Judge Everett plans to resume full-time then-troubled court to its full potential. Court of Military Appeals have consid­ teaching at Duke. However, he proudly However, in 1980, Congress extended erable drama. In one case that Judge adds, "my mom, who is in her nineties, his term by ten years. Everett recalled, an attorney was repre­ is still practicing law and I will be ready When Judge Everett joined the court senting his own son, who had received a to give her a hand if she needs me." He in 1980, it was reviewing less than severe sentence for drug offenses. An­ also looks forward to having more time 2,000 cases a year; this number later other was an espionage case concerning with his wife Linda and his sons Robin­ soared to well over 3,000. The caseload an Air Force officer who had delivered son, Jr., a senior at Harvard; Greg, a has now leveled to around 2,500. The missile secrets to the Soviets. F. Lee Bai­ freshman at Wake Forest University; court has world-wide jurisdiction over ley represented the accused officer and and Luke, a high school srudent. any criminal case tried by the armed Judge Everett recalls that his wife, who At the Law School, Judge Everett also services; its decisions are directly had heard the argument, later remarked has hopes of establishing a Center on reviewable by the U.S. Supreme Court. to him that "Mr. Bailey reminded me of Law, Ethics, and National Security. He Although only two cases have been Patrick Henry." Incidentally, the says "we need to take a close and impar­ granted review on writ of certiorari dur­ charges were dismissed because of a gov­ tiallook at some of the laws and policies ing his service, Judge Everen says that ernment promise of immunity. that apply to our defense activities and to the possibility of review helps provide Throughout his tenure on the court set out some clearer guidelines as to what "excellent quality control." and his teaching career, Judge Everett conduct is appropriate when national se­ Because the court is established un­ has remained active in community af­ curity is involved. For several years, der Article I, rather than Article III, of fairs and legal reform. He has been I have been teaching a seminar in this the Constitution and because of its in­ president of the Durham Bar; a mem­ field; and I know that there are many terface with military society, the court ber of the State Bar Council; chair of challenging legal and ethical issues to be has a unique status. This creates an op­ the American Bar Association's Stand­ examined." portunity for the court to blaze trails ing Committee on Military Law; a Judge Everett says he is ready to into some areas where other federal member of the North Carolina IOLTA come home! He remembers the days courts may not venture. For example, Board of Trustees; a life member of the when everyone in the Durham bar and the Court of Military Appeals regularly National Conference of Commissioners Durham courthouse knew everyone else deals with rape and child abuse cases, on Uniform State Laws; an American by name, but he says things have changed. which are seldom seen in other federal Bar Fellow; a director of the American "An uncancelled deed of trust recently courts. These cases have enabled the Judicature Society; and chair of the surfaced on which I had been named the court to develop extensive precedent on Durham Redevelopment Commission. trustee many years ago. I was asked to go issues concerning confrontation, hearsay He received the Federal Bar Associa­ to the courthouse and cancel the docu­ exceptions, and the scope of expert testi­ tion's Earl W. Kintner Award for Dis­ ment; but when I attempted to do this, mony. Judge Everett notes that his is tinguished Service in 1987. the employee in the Register of Deeds one of the very few courts that has al­ Over the years Judge Everett has ed­ Office asked me for an 1.D.! I realized lowed trial judges discretion to admit ited numerous symposia for Law & then that I had been away from Durham exculpatory polygraph evidence. Contemporary Problems and has pub­ for a long time .. .It's nice to be coming The "big issue" that Judge Everett lished extensively in leading law jour­ back. I've got many things planned for says the court now faces concerns com­ nals. As Chief Judge he has addressed my return." pulsory drug testing. He attributes this audiences across the country and to the fact that the armed services were abroad. Jonathon Kaplan '90 VOL U M E 9, NO. 1 57

Loneliness Filled Noriega's Sanctuary Enrique jelenszky '88 and Rolando Domingo

Enrique Jelenszky '88 and Rolando Domingo are Pana­ mouths shut, we kept our minds open. manian lawyers. Because Mr. Domingo was familiar with "You are witnessing history," a friend the Vatican Embassy, the papal nuncio sent for him and said, and we never doubted that. We his friend Mr. Jelenszky to help out when Manuel Antonio scribbled notes from our conversations in Noriega and others took refuge there. Over more than a between answering the nunciature's in­ week the two took notes and later shared their story with cessantly ringing telephones, buying food David Marcos of the Dallas Morning News. This is a slightly revised version of that story which appeared in a and translating documents. number of newspapers on January 7. 1990. Like many Panamanians, we had mixed reactions about the invasion e you listening? The gringos launched by the Americans on December will climb over the wall! 20. We pride ourselves on being a pacific A They're burning up the lot people, yet our country was crumbling next door!" yelled the ousted general in because of the combined squeeze of U.S. the bedsheet. "Please go and check!" economic sanctions and Mr. Noriega's Manuel Antonio Noriega was fright­ ryranny. Many of our old classmates from ened, like a nocturnal animal facing the Jesuit prep school and law school had beam of headlights. His hands were at moved abroad to start anew. his neck, clutching the sheet he had That first night was terrifYing. Red ripped from his bed and wrapped lights ftom tracer bullets and U.S. heli­ around his body. It was the night of De­ copters laced the sky. Troops gutted the cember 26, 1989-two days after he downtown art-deco-sryle headquaners of had arrived at the Papal N unciature, the Panamanian Defense Forces, then which functions as an embassy for the swarmed outward. The next day, Mr. Vatican, looking haggard and suffering Ousted Panamanian leader Manuel Noriega (left), posed Noriega's so-called Digniry Battalions back pains from eluding one of the larg­ with author Enrique Jelenszky '88 in December at the and ordinary citizens were looting and est manhunts of the twentieth century. Vatican Embassy in Panama City. burning everything from barber shops to We were in the room next to Mr. three-story depanment stores. Mean­ Noriega's. Friends of the papal nuncio, make a helicopter landing pad. With while, U.S. soldiers blocked off roads we had been called to help out at the Armed Forces Radio blasting hard rock around the Cuban and Nicaraguan em­ embassy during these turbulent days. or C-130 turboprops buzzing overhead, bassies but did not at first surround the And now we were also at a turning we talked late into the night with our Vatican's Mediterranean-sryle nuncia­ point, though we did not realize it until deposed leader. More accurately, he ture. later. Having initially ignored, even ridi­ talked and we listened-to theories On December 21, Rolando, a twenry­ culed the ousted dictator, we starred to about political intrigue, religion, history, five-year-old lawyer, was called to help at see him for what he now was: a scared, and military strategy. He decried com­ the nunciature. Several ofMr. Noriega's lonely man, justifYing his past and run­ munism, even though all of Panama says associates were already there: Lt. Colonel ning out of options. He had vowed he was allied with Cuban President Fidel Arnulfo Castrejon, Lt. Colonel Carlos never to be taken by the gringos, but Castro. He defended his declaration of Arosemena King and Caja de Ahorros eight days later, he would walk into war against the United States, then bank director Jaime Simmons with his their arms. blamed former national securiry adviser two boys and their nanny. It was to be an astonishing week. John M. Poindexter for ruining relations The nunciature was getting full. Cap­ The windows of the embassy rattled as with Panama five years ago by pressuring tain Gaitan had arrived to ask for refuge. U.S. Army Black Hawk helicopters him to supporr the contras fighting the So had four men from the ETA, the swept in from the Bay of Panama. Bull­ Sandinista government in Nicaragua. Basque separatist group fighting for inde­ dozers groaned outside as the Americans We often disagreed with Mr. Noriega, pendence from Spain, as well as the wife were clearing and burning a field to but even when we could not keep our of one of the ETA rebels. Lieutenant 58 D U K E L A W MAG A Z J N E

Colonel Madrinan bolted over a back When U.S. troops started blaring you would still feel lonely when making fence and almost mowed down songs like "I Fought the Law and the this crucial decision." Rolando, whom he mistook for a priest Law Won" and bellowing "Good "you have a good philosophy," Mr. because of his dark suit. Juan Carlos Morning, Panama," Mr. Noriega barely Noriega said. The ice had been broken. Cabrera, a Cuban exile who had picked seemed to notice. Papal Nuncio Jose The next evening Rolando approached a bad time to cross through Panama, Sebastian Laboa, who was trying to the former general. They got around to walked through the front door. Others maintain his customary calm, called it a subject that made him animated-the had come and gone, including several "outrageous. " United States. officials from the Defense Forces who Enrique, a 24-year-old Duke Uni­ "You were the pampered boy of the left to swear allegiance to the new Pub­ versiry Law School graduate specializing Americans," Rolando said, referring to lic Forces at the nuncio's encourage­ in international law, arrived Tuesday, allegations that Mr. Noriega was on the ment. December 26-two days after Mr. CIA payroll. "What triggered the prob­ Last October, when Mr. Endara and Noriega. Upstairs, Mr. Noriega's door lems with them?" other opponents of the military regime was slightly ajar. Enrique glanced in to "You know, the trigger with the took refuge in the embassy, Rolando see the gaze of a cornered man. Soon Americans was the 12th of December and his friends joked about the day Mr. after, the cacophony of bulldozers and 1984, with the visit to Panama of Noriega would arrive. Now Mr. Endara helicopters started. Poindexter to obtain support for the had been declared president and 26,000 At sunset the next day, we sat to­ contras in Nicaragua." troops were searching for Mr. Noriega. gether next to his room, questioning We can't say if that is true. He had a On Sunday-Christmas Eve­ our Christian sense of chariry. We de­ way of revealing things without really Rolando had gone to a Mass given for cided Enrique should approach. revealing them. He recalled telling Mr. the people left homeless because of the Enrique knocked on the door and en­ Poindexter, "It is a crazy idea because bombing and firefights near Mr. Nori­ tered. Avoiding the ousted dictator's the contras lack the formation, the ega's headquarters. He returned to the glance, Enrique looked at the television. training and the capabiliry for combat." nunciature about 3 p.m. to find an ex­ Children were skating at Rockefeller He brimmed with confidence on hausted, hunched newcomer wearing a Center. "Have your days been long?" he two points. First, he said the govern­ cap and draped in a flower-patterned asked. ments of both countries would find a blanket-Mr. Noriega. No one had Mr. Noriega gestured to the TV set way to break the Panama Canal Treaties said he was expected; but then no one and a Bible and a book by Isabel before the year 2000. He predicted the seemed surprised, either. Allende, daughter of the late Chilean wording the Panamanians would pro­ Rolando went upstairs to check the President Salvador Allende. He said, pose, "By this agreement, as good room assigned to the ousted ruler-the "You know, my life has always been .... " friends, we give you this island so you same room President Guillermo Endara His words trailed off as he moved his can have a base there." Enrique chuck­ had occupied when seeking refuge from hands to indicate hectic activiry. led at his conviction. "I assure you it the military a few months before. Enrique kept the conversation going. will happen that way," Mr. Noriega Rolando disconnected the phone in the "Under the most strenuous circum­ said. room. stances, you can always find the good Second, when the subject of his Immediately, everyone-aids and side. What's the good side of your stay four-and-a-half days in hiding came up, even the priests-split up round-the­ at the nunciature?" he boasted that he could have kept go­ clock shifts watching the upstairs phone "Well, I've learned that nothing is so ing forever. "No one could have found and fax machine. Mr. Noriega rarely left important that you can't do without it." me." When we pressed him, he said he his room, which had an old color televi­ He looked back at the television. "Life had been warned about the U.S. inva­ sion hooked up to cable TV. Mr. goes on .... We are just molecules." sion several hours in advance because of Noriega ate all his meals at a simple Without directly referring to Mr. information he received about an un­ desk. Rolando steered clear of him. Noriega's quandary over whether to stay usual level of activiry at Fort Bragg, When Mr. Noriega did appear, he or leave, Enrique remarked, "A man North Carolina. He would not elabo­ wore a flimsy V-necked undershirt, will always be lonely when making the rate and we sensed that was just part of green shorts, dark socks and sneakers. most important decision in his life, even the story. His wife and daughters were His only other clothing was a pair of if he is surrounded by his family. Re­ out giving Christmas food baskets and gray trousers. Rolando gave him a used member, even if your family was here were informed not long before the at­ shirt. tonight, you would not be alone but tack, he said. VOL U M E 9. NO. 1 59

We switched the subject to religion. market each time because we were with us, then with other occupants of the ''I'm Catholic," he replied. afraid people would get wind we were house, including Lieurenant Colonel "Practicing?" shopping for a group that included Mr. Madrinan and Captain Gaitan, the head "Panamanian-style. " Noriega. We bought only the basics: of his personal security. A few hours later, "Does that mean you only go to vegetables, eggs, rice and canned meat. he would enter the spartan bedroom for a church for baptisms, funerals and wed­ During our visits outside the em­ final time to change into his military uni­ dings?" bassy, friends labeled us traitors. Co­ form with the four stars on the shoulder He laughed. workers said they were abandoning the boards and his Noriega placard pinned "What about Buddhism?" church because it was flirting with a over his heart. "As you know, Buddhism is not a murderous dictator. Some of our rela­ That afternoon, the opposition held a religion unto itself, just a system of tives-victims ofMr. Noriega's six-and­ large rally outside the nunciature to de­ philosophical principles and it's not in­ one-half-year regime-despaired that mand Mr. Noriega's ouster. Enrique compatible with Christianity." He said we had succumbed to his famous hyp­ stayed home. Rolando went to help at people called him a Buddhist merely notic stare. the nunciature, fearing a rush of protest­ because he had received a Buddhist For a few nights, Mr. Noriega ate ers. "I think Noriega's leaving," someone leader. If he had received an African with Captain Asuncion Eliezer Gaitan, said at 7:30 p.m. "They brought his tribal leader, he said, it wouldn't mean his personal security chief, and Lt. unform and it is on his bed." he was animist. He said he was im­ Colonel Nivaldo Madrinan, the burly The general was not around. Rolando pressed by Pope John Paul II's humility, director of his secret police, then moved went upstairs and, sure enough, the which was so great "that you wanted to downstairs to join a group of Basque shined boots and the uniform were laid lift him up." separatists whom he had given refuge out. Rolando felt tension and an over­ He showed his sense of humor. from Spain, and a few others. whelming silence. For some reason, at "This place is so austere. Many people Monsignor Laboa decided we would 8:45 p.m., everyone spontaneously gath­ have benefited from sanctuary here and have a nicer dinner for New Year's Eve, ered inside the double doors. They they don't even give anything in return. bur nothing fancy. We had turkey and formed a receiving line as Mr. Noriega They never even offered a Betamax pork and traditional Panamanian side came down the stairs. As he went our, he [videocassette recorder]". dishes. Everyone ate together for the looked serene. Later, when we watched Some of the talk was just fun. Ro­ first time. Monsignor Laboa shared the television pictures of his arrival in lando asked who of the current trio of special foods he had received ftom Florida, we saw the exact same glower of civilian leaders Mr. Noriega would most friends at the West German Embassy. a cornered man that Enrique had spotted enjoy challenging on a televised debate At the dinner, Mr. Noriega seemed in through the open door that first night. like "Crossfire." Without pausing, he good humor until the monsignor went Not until he walked into the humid named First Vice President Ricardo to take a phone call. Mr. Noriega got night air to turn himself over to the Arias Calderon, "because he's the most quiet and moved to a corner. He pur Americans did we learn that an Uzi ma­ capable." our a candle with an upside-down cof­ chine gun had been found under his bed, We felt emboldened. We asked fee mug. a few steps from the site of our nightly where he would like to live. "In South Finally, on Wednesday, when we chats. America: Argentina. In Europe: had the sense that he was abour to de­ People keep asking us how we would France. The rest of the world: Taiwan." part, that a divisive, bloody chapter was judge Mr. Noriega. We are not evading "Instead of being with us tonight ending, we had the courage to ask a fa­ the question when we say it is not for us who would best understand your posi­ vor. It was hard to guess how someone to decide. At some point, we had stopped tion?" He paused and said Francois under so much pressure would react. fearing him. Perhaps we pitied him; he Miterrand, the French president. After all, he was a man facing up to 145 had such a chance to do good for this be­ At midnight, we broke up the con­ years in prison for drug charges if sent leaguered country and instead he made it versation. He wrote us notes on the to the United States and convicted, or a a pawn in his personal chess game with nunciature's stationety. Rolando's card lynch mob if he was turned over to his the gringos. To this date, we still see the said, "A memory of an analytical chat own country. "Would it be dangerous suffering caused by Mr. Noriega to our over geopolitics." for you if we take a picture?" country and we foresee that it will not We were helping the nuncio in "Not at all," he said. "Just let me pur cease in the near future. whatever way we could. Some days, that on a clean shirt." He strode up to his meant shopping. We went to a different room, seemingly cheered. He posed 60 DUK E LAW MAGA Z INE

Book Review

Jerry Falwell v. Larry Flynt: The First Amendment on Trial* by Rodney A. Smolla '78

o say that Jerry Falwell and ried twice. He Larry Flynt didn't like each opened a string of T other would be one of the great "Hustler" strip­ understatements of modern times. joint bars in Ohio, Falwell, the Baptist minister who published an inter­ founded the Moral Majoriry, and Flynt, nal newsletter and the publisher of Hustler magazine, are then turned that diametrically opposed not only on every into a magazine. conceivable political and philosophical Within four years point of view, but harbor a deep dislike, its circulation hit if not outright hatred, of each other. It over two million was Flynt's open display of this animos­ and annual profits iry that brought the two of them into a exceeded $13 mil­ legal battle that ultimately found its way lion. Smolla de­ to the United States Supreme Court. In scribes Hustler as Jerry FaLweLL v. Larry Flynt: The First "flamboyant, tell­ Amendment on Trial, author Rodney A. it-like-it-is smut Smolla '78, provides a history of that with no pretense to case, as well as biographies of Flynt and serious redeeming Falwell. The depth of his treatment social value." For a gives us insights into the personalities of while, Flynt also both men. published straight Jerry Falwell was born and raised newspapers, and near Lynchburg, Virginia. His father his company pub­ had become an alcoholic after the loss Rodney A. Smol/a '78 lishes 'softer' por­ of a child. During his teens, Falwell was nography. Rodney A. Smo/la is the James Gould Cutler Professor of Constitutional Law and part of a rowdy group of boys, but he In 1977 Flynt never got into any serious trouble. He Director of the Institute of Bill of Rights Law at the College of William and Mary, was converted to became a Christian in 1952, and since Marshall-Wythe School of Law, in Williamsburg, Virginia. He has published Christianiry. For a that time has not drunk any alcoholic extensively and is a frequent lecturer on constitutional law issues, particularly while Hustler re­ beverage. This relationship, or lack of freedom of speech. He is the author of Law of Defamation, a legal treatise, and flected this as "a one, with alcohol was to figure in Suing the Press: Libel , the Media, and Power, which received an ABA Gavel Award screwball mixture Flynt's 1983 artack on Falwell. of sex and reli- Certificate of Merit in 1987 Falwell went on to bible college and gion ... . " Later he later began what was to become one of renounced his con­ the most-watched television ministries, Moral Majoriry. He became a major versIOn. In 1978, while on trial in The Old Time GospeL Hour. Subse­ player in the conservative movement. Lawrenceville, Georgia for publishing quently, in order to carry his religious Larry Flynt was raised in Kentucky. obsceniry, Flynt was shot. His spleen beliefs into the political arena, he He joined the army at fourteen, and by and much of his intestine were removed founded the conservative group, the the age of twenty-one he had been mar- during the ensuing surgery and he was

*St. Martin's Press, 1988 VOL U M E 9, NO. I 61

Hustler's editors chose respondent fact, Falwell had previously sued Pent­ as the featured celebrity and house for publishing an interview of him drafted an alleged "interview" with without what Falwell considered proper him in which he states that his authorization, and Grutman had suc­ "first time" was during a drunken cessfully defended Penthouse in that incestuous rendezvous with his case. Ironically Flynt's attorney, Alan mother in an outhouse. The Hus­ Isaacman, had previously represented tler parody portrays respondent Hustler and Flynt in several lawsuits and his mother as drunk and im­ against Penthouse and Guccione. v. moral, and suggests that respon­ Jerry Falwell v. Larry Flynt: The First dent is a hypocrite who preaches Amendment on Trial is informative and only when he is drunk. In small enjoyable, a book that explains the in­ print at the bottom of the page, ner workings of the minds of these cli­ the ad contains the disclaimer, ents and attorneys. It is comprehensive "ad parody-not to be taken seri­ in its coverage of the celebrities involved THE FKR.ST ously." The magazine's table of and their celebrated case. Its appen­ AMENDMENT contents also lists the ad as "Fic­ dixes include the ad which Falwell (and ON TR.KAL tion; Ad and Personality Parody."1 no doubt, many others) found so offen­ sive and the Supreme Court opinion Shortly after the publication of the which gave Flynt the final victory. It is ad, Falwell sued Flynt and Hustler on rendered a paraplegic. The following a book lawyers and nonlawyers alike the grounds oflibel and intentional in­ years of treatment with drugs and fur­ should put at the top of their reading fliction of emotional distress. Flynt ther surgery left him even more bitter lists. raised the First Amendment, among than he had been. other issues, as a defense, and the case The conflict between Flynt and 'Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). became a battleground for the war be­ Falwell erupted in 1983. The Supreme '375 U.S . 254 (1964). tween the individual rights of public Court decision succinctly summarizes figures and the First Amendment guar­ the action Falwell found tremendously antee of a free press. Ultimately, the Su­ offensive: Reviewed by Kenneth J. Hirsh, Reference preme Court ruled in favor of Flynt and Librarian and Instructor in Legal Research. The inside front cover of the No­ Hustler. vember 1983 issue of Hustler Smolla not only details the title case, magazine featured a "parody" of and the players in it, but explains the an advettisement for Cam pari Li­ legal concepts involved in a manner queur that contained the name likely to hold the interest of both lay­ and picture of respondent and was person and jaded trial attorney. His entitled "Jerry Falwell talks about extensive discussion of public figure his first time." This parody was cases such as New York Times Co. v. modeled after actual Campari ads Sullivan 2 serves as a valuable primer on that included interviews with vari­ the subject, and the sources in his foot­ ous celebrities about their "first notes would make a helpful bibliogra­ times." Although it was apparent phy. by the end of each interview that The author goes beyond the legal this meant the first time they issues and writes insightfully about the sampled Cam pari, the ads clearly parties and their attorneys. We learn played on the sexual double that Falwell's attorney, Norman Roy entendre of the general subject of Grutman, had frequently represented "first times." Copying the form another "skin" publisher-Bob and layout of these Cam pari ads, Guccione, publisher of Penthouse. In 62 DUKE LA W MA GAZ I NE NOTED

Alutnni Setninar Law Firm Delivery of Pro Bono Legal Services

Jim Coleman: Pro Bono Representa­ tion

Despite the public outrage and wide­ spread contempt for convicted mur­ derer Ted Bundy, executed in Florida's electric chair in 1989, attorney James Coleman of Wilmer, Curler & Picker­ ing in Washington, D.C., says he has no regrets about the pro bono represen­ tation he provided to Bundy from 1988 until his 1989 execution. "Representing Bundy was among the most frustrating and rewarding work I have ever done as an attorney," says Coleman, who taught a seminar on capital punishment litiga­ (Left to right) Craig A. Hoover '83 , Richard "Chip " Palmer '66 and Thomas A. Hale '82 discuss pro bono services. tion at Duke Law School in the fall of Other alumni particpants were Richard M. Allen '66, Barbara R. Arnwine '76 and John J. Coleman, Jr. '50. 1989. Bundy was on Florida's death row Under the sponsorship of the Law In answer to questions, the alumni for nearly ten years and is thought to Alumni Association, the Law School encouraged the student audience to seek have been responsible for the murder of has started an alumni seminar program information regarding pro bono about thirty women nationwide. He which will address timely issues regard­ programs and commitments from the was executed in Starke, Florida on Janu­ ing the legal profession through alumni law firms with which they interview and ary 24, 1989 for the murder of a twelve­ panel discussions. On January 23, clerk. It was pointed out to the students year-old Florida girl, despite appeals by 1990, a panel of six alumni and one that not only would this effort allow the Coleman to the Florida Supreme former visiting faculty member dis­ students to find the firm in which they Court, a U.S. District Court in Florida cussed law firm delivery of pro bono would be most interested in working, and the U.S. Supreme Court to block service. but would also let the firms know of the Bundy's execution by presenting evi­ In addition to describing the various interest their law clerks and young dence that he was mentally incompe­ programs in existence at their firms, the associates have in the firm's pro bono tent. alumni discussed the importance of the efforts. A 1974 graduate of Columbia Uni­ commitment to pro bono service by Alumni seminars on additional versity School of Law, Coleman says individuals and law firms. Barbara topics will be planned for 1990-91. lawyers do not have to be opposed to Arnwine '76, Executive Director of the Video tapes of the seminar programs the death penalty to represent people on Lawyers Committee for Civil Rights and the spring Career Conference, death row. "They are people who have under the Law, stressed the importance which invites alumni to talk with the constitutional rights that the legal pro­ of the service of anorneys in private students regarding career choices, will fession has to make sure are protected," practice in the effort to fully staff pro be available in the Law School Place­ says Coleman, who has represented one bono cases. ment Office. other death row defendant and has writ- VOL U M E 9 , NO . I 63

to do pro bono. "When a group or an individual has a legitimate legal claim or problem and cannot afford a lawyer, those in the legal profession ought to make sure that they get representation," said Coleman, a former legal services attorney at the Washington, D.C. Legal Services Corporation from 1976 to 1978. "I am not in favor of mandatory pro bono because it would be like judge­ appointed counsel in criminal cases where a lot oflawyers participate against their will and are not doing the best job they can for their clients," he said. "Pro bono is the kind of thing that lawyers ought to do because they are committed to it and it should be done with the same seriousness as work done for pay­ Jim Coleman (center) at the Alumni Seminar. ing clients." Law firms are not doing more pro bono work, he said, because law stu­ ten amicus curiae briefs to the U.S. Su­ Claude Allen '90, who was among the dents and associates are not asking them preme Court opposing the imposition fifteen students enrolled in the class. to do it. "Pro bono is a recruiting factor of the death penalty in other death pen­ "We looked at capital punishment from for law firms and law students should alty cases, both the litigation and theoretical per­ not be afraid to ask employers about Born and raised in Charlotte, Cole­ spective and also discussed pro bono their commitment to pro bono," said man said he accepted the offer to teach representation of capital offenders. It Coleman, who has recruited for his for a semester at Duke because of its was a very valuable course and should firm. "Iflaw students asked law firms to reputation as one of the nation's finest always be offered among the criminal do more pro bono and to make pro law schools and because of its location law courses taught here." bono a part of their professional devel­ near Charlotte where his family resides. In January, Coleman returned to the opment, they would do it," he said. "I originally intended to take a sabbati­ Law School as a participant in a seminar "Law firms use pro bono to compete cal to do research and writing on capital on "Law Firm Delivery of Pro Bono with other firms because it helps pro­ punishment, until I received an invita­ Legal Services." Coleman noted, "I de­ vide young associates with significant tion from Dean Gann to teach a semi­ fine pro bono as any work done in the responsibility and experience." nar on capital punishment at Duke," public interest, although some people Coleman says that law schools and said Coleman, who is a partner at define it more narrowly as work done in law students are the key to the future of Wilmer, Cutler & Pickering, which the public interest on behalf of people pro bono work. Law students can have funded his pro bono representation of who cannot afford a lawyer. " Pro bono a significant impact on the amount of Bundy. "Being at Duke was a tremen­ might be anything from representing pro bono work law firms will fund, he dous experience-everything that I garden clubs to indigent criminal defen­ said, and law schools have a responsibil­ thought it would be. The students were dants on death row, he said, adding that ity to instill in their students the idea enthusiastic and well prepared for dis­ lawyers and law firms generally decide that doing pro bono work is part of be­ cussions and the faculty was very sup­ individually what are worthwhile pro ing a lawyer. portive." bono projects. "By focusing on Ted Bundy's con­ Although Coleman does not think Samuel L. Starks '92 viction, Professor Coleman's course that state bar associations and law firms challenged me to look at what the judi­ should require lawyers to do pro bono cial system does to capital offenders and work, he says all practicing attorneys the attorney's role in that process," said should feel a professional responsibility 64 D UKE L AW MAGAZ I NE

Currie Lecture

The Law School's Annual Brainerd Currie Memorial Lecture was presented on February 16 by Professor Richard Helmholz (far right) of the University of Chicago Law School. He spoke on "European Law and Common Law: Historical Friends or Foes?" to an audi­ ence of faculty and students. Also pic­ tured are (from left) Dean Pamela Gann, John H. Lewis '67 and his wife, Harriet, of Miami, Florida, the benefac­ tors of the Currie Lecture. Next year's Currie Lecture will be presented by Pro­ fessor Lea Brilmayer of Yale Law School.

Distinguished Teacher Award

Claude Allen '90, immediate past tinguished Teacher Award to Professors guished Teacher Award has been pre­ president of the Duke Bar Association Melvin G. Shimm (far left) and Tho­ sented annually by the DBA since 1985 (far right) presented the 1989-90 Dis- mas B. Metzloff (center). The Distin- to recognize outstanding classroom con­ tributions by a member, or members, of the Law School faculty. In presenting the award to Professors Shimm and Metzloff, Mr. Allen noted the enthusiasm and respect that both show for teaching and for their stu­ dents. "This year's distinguished teach­ ers have provided us with excellent ex­ amples after which to pattern ourselves. They have impacted our lives for the better because of their unmatched com­ mitment to us and to our education." Previous recepients of the Distin­ guished Teacher Award are: Sara Sun Beale, 1988-89; John C. Weistart, 1987-88; James D. Cox, 1986-87; Ri­ chard C. Maxwell, 1985-86; and Tho­ mas D. Rowe, Jr., 1984-85. VOL U M E 9. NO. I 65

Special Gifts to the La", School

Building Fund Duke and I am proud that I was able to ture excellence of the Law School. The Law School is pleased to an­ graduate from such a fine institution." Class members who have not yet made nounce the receipt of three alumni gifts Dean Gann noted that Mr. Fite's a pledge but wish to participate in the of $1 00,000 or more to the Building pledge is "a tremendous help in our program may call or write the Law Fund. These gifts will count toward the fund-raising project. His gift will also School Alumni Office. School's $12.5 million component goal set an important example to his class­ of the University's $400 million Cam­ mates and to others in Florida, and we Paul, Hastings, Janofsky & Walker paign for Duke. James M. Poyner '40 are extremely pleased to receive his sup­ Minority Scholarship Program has made a pledge of $500,000, and port." The law firm of Paul, Hastings, John D. Fite '61 and George R. Krouse, George Krouse is a partner in the Janofsky & Walker will implement the Jr. '70 have each pledged $100,000. New York law firm of Simpson Paul, Hastings, Janofsky & Walker Mi­ James Poyner is a founding partner, Thacher & Bartlett, where he practices nority Scholarship Program at the Law now semi-retired, of the Raleigh-based in the securities and corporate finance School for a two-year period covering law firm of Poyner & Spruill, the largest areas. Mr. Krouse, a member of the Law the 1990-91 and 1991-92 academic in the Triangle area. He provided lead­ School's Board of Visitors, states that years. The PHJ &W Scholarship is to ership and vision in helping to create "Duke has been very good to me, pro­ be awarded on the basis of financial the Research Triangle Park in the viding scholarship funds for my entire need and merit to a student starting his 1960s, and has been active in many legal education. I have always felt an or her second year in the fall of 1990. civic, bar, and business organizations. obligation to give something back to the The Scholarship will cover the cost of (For a profile ofMr. Poyner, see Duke Law School, and I am thankful to now tuition and books for the recipient's sec­ Law Magazine, Summer 1988, at 42). be in a position to do so. In addition, ond and third years, and will provide a In announcing Mr. Poyner's com­ my son just completed his freshman $500 per month stipend during the aca­ mitment, Dean Pamela B. Gann said: year at the University and could not be demic year (September-May) to help "We tremendously appreciate the gen­ more pleased with his decision to attend defray living expenses. erosity ofMr. Poyner, who is an out­ Duke. This has reinforced my already The PHJ &W Scholarship will be standing graduate of the Law School. strong feelings towards Duke." awarded to the individual who best ful­ Mr. Poyner has been a leader of the The Law School has received many fills the criteria established by the firm. practice oflaw in North Carolina for gifts to the Building Fund during 1989- Strong preference is to be given to mi­ many years and it is truly fitting that he 90. A complete listing will be published nority candidates, including individuals make this commitment to the Law in the School's Annual Report this fall. of Mrican-American, Hispanic, Asian School at such a critical stage in its de­ and Pacific Island, and Native-Ameri­ velopment." 1990 Class Gift can descent. Criteria to be considered John Fite is a partner in the Clear­ Some members of the Class of 1990 include demonstrated financial need; water, Florida law firm of Richards, have already made pledges to the Law outstanding scholastic achievement; Gilkey, Fite, Slaughter, Pratesi & Ward, School which they will pay over a three­ demonstrated commitment to others; where he specializes in residential real year period. Funds ftom their first-year leadership ability; and character. estate and estate practice and adminis­ pledges will pay for the trophy case in "The Law School has very limited tration. In making his gift, Mr. Fite the new building renovation. To date, scholarship funds for upperclass stu­ noted "how sincerely I appreciate Duke thirty-three percent of the class has dents," according to Gwynn T. University's help thirty-two years ago pledged $27,000 over the three years. Swinson, Associate Dean for Admis­ when I was a Private First Class in the Matching gifts from employers will sions. "The Paul, Hastings, J anofsky & Panama Canal Zone and had no money b~ing the three-year total to over Walker Scholarship will ensure contin­ whatsoever to enter law school.. .. I feel $32,000. Approximately $9,000 of the ued support for a returning minority very fortunate that I am now in a posi­ pledged amount will be paid during the student. This Scholarship is a most im­ tion to be of help to the school that 1990-91 year. portant initiative by one of the nation's came to my aid when it was desperately The Law School is most grateful to leading law firms. Paul, Hastings has needed. In my opinion, there is no finer our most recent graduates for their sup­ set an example which we hope will be law school in the United States than port and vote of confidence in the fu- followed by others." 66 DUKE LAW MAGAZ I NE ALUMNI ACTIVITIES

Professional News

'37 -David H. Henderson has ruptcy recently published by Shepard's recently retired, but remains counsel to McGraw-Hill, Inc. He is the managing the firm of Helms, Cannon, Hamel & parter of the Atlanta firm of Greene, Henderson in Charlotte. Buckley, DeRieux & Jones.

'47-MatthewS. (Sandy) Rae,Jr. , 62-John H. Adams has been was named the recipient of the 1990 named one of the five recipients of the Shattuck-Price Memorial Award, the First Annual "As They Grow" Awards highest honor bestowed by the Los An­ presented by Parents Magazine, in rec­ geles County Bar Association. Rae is a ognition of Americans who daily make partner in the firm of Darling, Hall and a difference in the lives of children. Rae. Adams is the founder and director of the Natural Resources Defense Council '48-JohnA. Simpson has returned in New York City. (See profile onp.49.) to private practice in Ashland, Ken­ -James W. McElhaney, the Joseph tucky after serving as a state district c. Hostetler Professor of Trial Practice judge. and Advocacy at Case Western Reserve -Thomas Emmet Walsh was recently University, recently received the elected a fellow of the American Bar Sidney W. Smith. Jr. '49 school's Distinguished Teacher Award. Foundation. He is a partner in the firm of Gaines & Walsh in Spartanburg, '55-William G. Bell announces the , 64-Harry J. Haynsworth, IV has South Carolina. opening of his law office in Miami. become the dean of the Law School at -David C. Goodwin was installed as Southern Illinois University in '49-Sidney W. Smith, Jr. has president of the Miami Chapter of the Carbondale. stepped down as chairman of the Ex­ American Board of Trial Advocates in ecutive Committee of the firm of Clark, January. He is a partner in the Miami '66-Alexander B. Denson received Klein & Beaumont in Detroit. He will office of Morgan, Lewis & Bockius. the 1989 Human Relations Citizens remain with the firm, and will become Award for his volunteer efforts and of counsel at the end of the year. '59-Harrison K. Chauncey, Jr. has leadership with the Wake County, joined the firm of Foley & Lardner in North Carolina Coalition for the '51-James J. Booker, superior court West Palm Beach, Florida. Homeless. He is a federal magistrate in judge in Winston-Salem, is seeking Raleigh. statewide re-election in November to '60-John Q. Beard became of coun­ -E.D. Gaskins, Jr. is now the manag­ retain his post, to which he was ap­ sel to the Raleigh firm of Maupin T ay­ ing partner of the newly-formed firm of pointed by Gov. Jim Martin in May lor Ellis & Adams on March 1, 1990. Everett, Gaskins, Hancock & Stevens of 1989. He is a member of the firm's business with offices in Raleigh and Durham. and tax practice group, where he spe­ -Christopher J. Horsch is now '52-WilliamJ. Rokos, Jr. has re­ cializes in business, tax, and estate plan­ general counsel to South Shore Bank of tired from the practice of law and re­ nmg Issues. Chicago. sides in Spring Hill, Florida. -Joseph M. Parker, Jr. now serves as president and Triangle regional counsel , 68-Paul B. Ford, Jr. has been , 54-Paul Hardin III, chancellor of of Lawyers Title of North Carolina, Inc. elected governor of the Foreign Policy the University of North Carolina, has in Raleigh. Association. He is chair of the Interna­ been named to the Board of Trustees of tional Practice Committee of the firm the Carnegie Foundation for the Ad­ '61-c. Richard McQueen is the co­ of Simpson, Thacher & Bartlett in New vancement of Teaching. author of Federal Tax Aspects ofBank- York City. VOL U ME 9, NO. J 67

-William G. Hancock announces School of Law in White Plains and a the formation of the firm of Everett, member of the Professional Responsi­ Gaskins, Hancock & Stevens with bility Committee of the Bar Association offices in Durham and Raleigh. of the City of New York.

, 69-Charles L. Becton has resigned '74-Brenda Brown Becton has from the North Carolina Court of Ap­ been appointed an administrative law peals and has joined the Raleigh firm of judge with the North Carolina Office of Becton, Slifkin & Fuller. He was re­ Administrative Hearings in Raleigh. placed on the bench by Allyson K. -Arpad de Kovacsy is president of Duncan '75. In July, Judge Becton re­ TCOM Systems, Inc. ofWashingron, ceived the Jacobson Award from the D.C., a mass-mailing service that uti­ Roscoe Pound Foundation which rec­ lizes electronic transfer technology. ognizes the outstanding law school pro­ fessor teaching trial advocacy in the '75-Thomas P. Davis has become a United States. (See profile on p. 52.) partner in the law firm of McDermott, -Richard G. LaPorte has been ap­ Will & Emety. A trial attorney, he prac­ pointed a senior vice president of Wells tices in Newport Beach, California. Fargo Bank in San Francisco. He man­ -Timothy J. DeBaets is now with the ages the bank's corporate and interna­ New York City firm of Cowan, Bodine Roberto Pineiro '77 tionallegal affairs, and oversees legal & Gold. services for their loan adjustment, com­ -Allyson K. Duncan was appointed partner in the Washingron, D.C. office mercial and real estate industries by Gov. Jim Martin in February 1990 of Davis, Graham & Stubbs. groups. to fill an unexpired term on the North -Brent S. Gorey is a partner in the -Ronald L. Shumway is special coun­ Carolina Court of Appeals. She replaces Philadelphia firm of Patterson & Weir. sel to Bechtel, Inc. in San Francisco. Charles L. Becton '69, who resigned -D. Ward Kallstrom has been ap­ from the bench in February. Judge pointed to the Senior Editorial Board of '70-James c. Frenzel has joined the Duncan is the first black female to serve Employee Benefits Law. He is a partner firm of Smith, Gambrell & Russell in on an appellate court in North Caro­ with Lillick & Charles in San Francisco, Atlanta. lina. She has been a law professor at and a frequent lecturer on employee North Carolina Central University in benefits issues. '72-John D. Allton was recently Durham since 1986. -Roberto Pineiro has been appointed elected to the National Board of the by Gov. Bob Martinez to a newly-cre­ American Diabetes Association for a '76-David B. Post is now executive ated county court judgeship in Dade three-year term. He is a partner in the director of Turnaround Management County, Florida. Pineiro had previously Norwalk, Ohio office of Hiltz, Associates in Cary, North Carolina. been a prosecutor in the State Wiedemann & Allton. Attorney's Office in Miami. -LauraJ.G. Long is a partner in the '77 -Peter Brian Bothel announces -EdwardJ. Rothe has been named a newly-formed law firm of Porter, Steel, the opening of his law office in San parrner in the Boston office of Coopers Humphreys & Porter in Durham. Francisco. & Lybrand, the international account­ -Donald M. Etheridge, Jr. has been ing and consulting firm. He specializes '73-Nancy Russell Shaw has been named of counsel to the Dutham firm in partnership taxation. named lecturer at the Law School where of Newsom, Graham, Hedrick, Bryson she will teach estate & gift tax and trusts & Kennon. He is also director of , 78-Richard A Horvitz has been & estates during the 1990-91 academic planned giving for Duke University and named secretary/treasurer of Moreland year. She is a partner in the Charlotte a senior lecturer at the Law School. Management Company in Beachwood, office of Moore & Van Allen. -Peter Feldstein has been elected for Ohio. -William J.A. Sparks is now senior a ten-year term as county judge, family -Ann M. "Margie" Humphreys is litigation counsel at W.R. Grace & Co. court judge and surrogate of Hamilton now a partner in the newly-formed firm in New York City. He is also an adjunct County, New York. of Porter, Steel, Humphreys & Porter professor oflaw at PACE University -Harold I. Freilich has been named a in Durham. 68 DUKE LAW MAGAZ I NE

-Charles C. Hunter is now a partner of the Army. He is stationed for a year , 81-CarI R. Gold, as chairman of with the Washington, D.C firm of at Camp Casey, South Korea. the Civil Rights Subcommittee of the Gardner, Carton & Douglas. -John P. Higgins announces the Maryland State Bar, has authored A Ba­ -Don H. Littleton has joined the opening of the firm of Higgins, Cohrs sic Guide to Civil Rights and Discrimina­ firm of Brill, Moore & Wagoner in & McQueen in St. Petersburg, Florida. tion Laws, published in 1989. He is also West Plains, Missouri. He practices in -James D. Palmer announces the regional chairman of the Maryland the areas of corporate law, real estate, opening of the firm Palmer, Barr in Bar's pro bono efforrs. probate, estate planning and tax. Langehorne, Pennsylvania. -Abigail T. Reardon was named a -Jerome C. Scowcroft has been member of the firm of Nixon, Hargrave, elected to partnership in the Seattle of­ , 80-Margreth Barrett is now profes­ Devans & Doyle on January 1, 1990. fice of Schwabe Williamson & Wyatt, sor oflaw at the University of California She is resident in the New York City where he specializes in maritime and Hastings College of Law in San Fran­ office and concentrates her practice in international law. He is also an adjunct CISCO. general corporate and commercial professor of admiralty law at the Uni­ -Daniel S. Bowling, III is a vice­ litigation. versity of Washington School of Law. president at Coca-Cola Enterprises in -DavidJ. Wittenstein has been made Los ArIgeles. a partner in the firm of Dow, Lohnes & -G. William Brown, Jr. has joined AlbertSon in Washington, D.C Goldman, Sachs & Company in New -Michael R. Young was recently York City as a vice-president. He is in­ named a member of the firm ofWillkie volved in sales and new product devel­ Farr & Gallagher, resident in the New opment relating to currency and com­ York City office. modity hedging and derivative products. -Robert A. Carson has co-authored '82-J. Bradford Anwyll has become the "Evidentiary Motions at Trial" a member of the firm of Miller & chapter for the 1989 supplement to ILLi­ Chevalier in Washington, D.C nois CiviL TriaL Evidence published by -J. Phillip Carver is a litigator with the Illinois Institute for Continuing Le­ Greenberg, Traurig, Hoffman, Lipoff, gal Education. He is a partner at the Rosen & Quentel in Miami. Chicago firm of Gould and Ramer. -David S. Felman has become a part­ -Gale M. Ciceric-Payne is with the ner in the firm of Glenn, Rasmussen, firm of Payne, Pilkey & Associates in Fogarty, Merryday & Russo in Tampa, Fort Lauderdale, Florida. Florida. Jerome c. Scowcroft '78 -Michael W. Smith has been elected -Thomas A. Hale has been named a partner in the New York City office of partner in the Chicago office of Bryan, Cave, McPheeters& McRoberrs, Skadden, Arps, Slate, Meagher & Flom. '79-Jean Taylor Adams, who has where he specializes in private finance, He practices in the corporate and in­ been a senior lecturer at the Law School general corporate and international law. vestment areas. since her graduation, has recently -Leslie K. Thiele announces the -Richard L. Horwitz has been named moved to Winston-Salem. Although opening of her law office in Schenec­ a member of the Wilmington, Delaware she will not immediately return to tady, New York. She practices in the firm of Potter ArIderson & Corroon. teaching, she will continue to edit the areas of international & domestic busi­ -Ronald B. Landau is now an attor­ "Keeping Current-Probate" column ness transactions, immigration & na­ ney in the tax department of ARCa in for Probate 6- Property, published by the tionality matters, corporate & commer­ Los ArIgeles. ABA. ciallaw, and international investment. -Hideyuki Sakai is a partner in the -D. Rhett Brandon, a parmer with -William L. Webber has been named Tokyo law firm of Blakemore & Simpson Thacher & Bartlett, has be­ a partner at the Washington, D.C firm Mitsuki. come resident in the firm's London of­ of Howrey & Simon, where he practices -Ellen R. Stebbins has joined the fice. antitrust and commericallaw, and Houston office ofJackson & Walker. -William E. Harlan, an Army JAG white collar criminal defense litigation. Corps Major, was awarded the Legion -Richard D. WtlIstatter announces , 83-John B. Garver, III is now a of Merit medal for service as the deputy the formation of the firm of Green & litigation associate at Robinson, legal advisor to The Inspector General Willstatter in White Plains, New York. Bradshaw & Hinson in Charlotte. VOL U M E 9, NO . 1 69

-M. Timothy Elder is now an associ­ -David E. Mills was appointed assis­ his legal practice in Philadelphia at the ate at Smith, Gambrell & Russell in At­ tant United States attorney for the Dis­ firm of Kauffman, Heck & Berenbaum. lanta. trict of Columbia in May of 1989. -Cheryl M. Feik is now an associate -David A. Grieme has become an -Jonathan P. Nase is counsel to the with the Washington, D.C. firm of Van associate in the business department of Legislative Budget & Finance Commit­ Ness, Feldman, Sutcliffe & Curtis. the St. Louis office of Lewis, Rice & tee in Harrisburg, Pennsylvania. -Marc I. Israel is an associate at Fingersh. -Peter G. Rush has become an associ­ Olshan Grundman Frome Rosenzweig -Scott D. Harrington is now with ate with the firm of Bell, Boyd & Lloyd & Orens in New York City. the firm of Manatt Phelps Rothenberg in Chicago, where he practices in the -Ross N. Katchman is now an attor­ & Phillips in Los Angeles. area of civil business litigation. ney at the Hewlett-Packard Company -Susan Westeen Novatt is an associ­ -Lynn A. Stansel is now an attorney in Palo Alto, California. ate at Hill Wynne Troop & Meisinger at Orrick, Herrington & Sutcliffe in -Paul G. Nofer is with the firm of in Los Angeles. New York City. Schlossberg & Associates in Berwyn, -Carlos E. Pena recently joined the -Sonja Steptoe has recently become a Pennsylvania. law department at Young & Rubicam staff writer for Sports Illustrated maga­ -Harlan I. Prater, N has been named in New York City as a vice-president. zme. an associate in the newly-formed Bir­ -CO Scott Rassler was recently se­ -Paul R. Van Hook has joined the mingham, Alabama firm of Lightfoot, lected as a member of Mass Mutual Life firm of Ballard, Spahr, Andrews & Franklin, White & Lucas. Insurance Company's "Freshman Ingersoll in Washington D.C. -Junyo Sato announces the formation Five"-an award honoring the top five of the firm ofIshizawa, Ko & Sato in new agents throughout the country. , 86-Alexandra Allen has joined the Tokyo. -Kenneth R. Uncapher has joined staff of Greenpeace,USA in Washing­ -Sherri White Tatum is a trial attor­ the Winter Park, Florida firm of ton, D.C. ney for the National Credit Union Ad­ T risman and Willard. -Martin D. Avallone is now labora­ ministration in Washington, D.C. tory counsel for the IBM Corporation , 84-Barbara Tobin Dubrow is now in Atlanta. , 88-Liisa L. Anselmi has relocated with the firm of Sherr, Joffee & Zucker­ -B. Andrew Brown, Jr. is an associate to the New York City office of Gibson, man in Philadelphia. at Dorsey & Whitney in Minneapolis. Dunn & Crutcher. -Mitchell 1. Horowitz has joined the -Jane Spilman Converse has joined -Emily V. Karr has become an associ­ firm of Fowler, White, Gillen, Boggs, the firm of Beveridge & Diamond in ate at Stoel Rives Boley Jones & Grey in Villareal & Banker in Tampa, Florida. Washington, D.C. as an associate prac­ Portland, Oregon. -Kyung S. Lee has become a share­ ticing in the area of corporate transac­ -Mario A. Ponce is an associate at holder in the Houston firm of Shein­ tions. Simpson Thacher & Bartlett in New feld, Maley & Kay. He continues to -Gordon F. Kingsley, Jr. has joined York City. practice in the area of corporate the firm of Hill & Barlow in Boston. -David A. Schwarz is serving as spe­ restructurings and reorganizations. -Karen L. Manos (Tremblay) has cial assistant to Ambassador Morris B. -Floyd B. McKissick, Jr. announces been selected one of ten military attor­ Abram, the U.S. permanent representa­ the formation of the firm of McKissick neys to be detailed to the US Attorney's tive to the United Nations and other & McKissick, with offices in Durham Office for the District of Columbia to international organizations in Geneva, and Oxford, North Carolina. prosecute felony narcotics offenses in Switzerland. -John F. "Sandy" Smith is a candi­ D.C. Superior Court. -T. Scott Wtlkinson, Marine 1st date for a position as a Stanford Univer­ -Ellen Fishbein Mills is an associate Lieutenant, recently reported for duty sity trustee, his undergraduate alma ma­ at Odin, Feldman & Pittleman in with the 2nd Force Service Support ter. He is a senior associate at Morris, Fairfax, Virginia. Group at Camp Lejeune, North Caro­ Manning & Martin in Atlanta. -Julia Tillman Woessner has joined lina. -Peter G. Verniero has become an the firm ofLashly, Baer & Hamel in St. associate at the firm of Herold and Louis, where she specializes in tax and , 89-Kathleen E. Barge has become Haines in Liberty Corner, New Jersey. estate planning. an associate in the Washington, D.C. office of Covington & Burling. '85-J. Porter Durham is now an '87 -Joel B. Bell was named director attorney at Miller & Martin in Chatta­ of international events for the World nooga, Tennessee. Basketball League. He also continues 70 D U K E LAW MAG A Z f N E

Personal Notes North Carolina Firms Merge On March 1, 1990 the North Carolina law firms of Adams, McCullough & Beard and , 54-Eugene C. Brooks, III was Parker, Poe, Thompson, Bernstein, Gage & Preston merged to form the firm of Parker, married to Jean Carrie Forrest on Poe, Adams & Bernstein with offices in Charlotte, Raleigh and the Research Triangle Park. Twelve Duke Law School alumni work for the new firm: March 31, 1989. They reside in Durham, where he practices law. '77-Heloise Catherine Merrill (Parmer/Charlorre) 'B5-Alan G. Dexter (Associate/Charlorre) '78-Renee J. Montgomery (Parmer/Raleigh) -Kip Allen Frey (Associate/RTP) '61-Robert F. Baker was married to 'BO-Stephen D. Lowry (Parrner/Raleigh) 'B7-J. Parker Mason (Associate/Charlorre) 'B1-Cynthia Leigh Wittmer (Parmer/Raleigh) Barbara D. Ferguson on March 10, 'B8-Philip B. Belcher (Associate/Charlorre) 'B3-Linda Markus Daniels (Parmer/RTP) -Jonathan M. Crotty (Associate/Charlorre) 1990 at Duke University Chapel. He is 'B4-Pope "Mac" McCorkle III (Associate/Raleigh) -Josiah C. T. Lucas (Associate/Charlotte) a partner in the Durham firm of Spears, Barnes, Baker, Wainio, Brown & Whaley. Asheville, North Carolina. They reside High Point, North Carolina. Elizabeth in Miami. is an associate at Simpson, Thacher & , 63-David A. Ross was married to Bartlett in New York City. Clare MacIntyre on August 19, 1989. , 83-Ronald G. Hock and his wife, They reside in Arlington, Virginia. T assie, announce the birth of their first , 86-Jean Sih Lidon, and her child, Duncan Van Gorden Hock, husband, James P. Lidon, Class of , 78-Christopher G. Sawyer and his on February 23, 1990. 1985, announce the birth of a son, wife are pleased to report the birth of a -Carlos E. Pena and his wife, Susan, David Jake, their first child, born on daughter, named Frances Elizabeth, on are the proud parents of their second January 27, 1990. May 18, 1990. son, Raymond Alonso, born April 10, -Lisa Long and Kermit B. Kennedy, 1990. both Class of 1986, were married on , 79-William E. Harlan and his -Bruce J. Ruzinsky was married to November 11, 1989. Lisa works for wife, Betty, proudly announce the birth Linda Gracia on January 14, 1989. Fried, Frank, Harris, Shriver & of their second child and first daughter, They reside in Houston, where Bruce is Jacobson in Washington, D.C, and named Elizabeth Estelle, on December with the firm ofJackson & Walker. Kermit is with Hunton & Williams in 6,1989. Fairfax, Virginia. '84-Barbara R. Tobin was married -Julia Tillman Woessner and her '80-T. Patrick Jenkins and his wife, to Kenneth M. Dubrow on March 25, husband, Jeff, announce the birth of Jan (Duke B.S.N. '79), announce the 1990. They reside in Philadelphia. their daughter, Mary Nina, May 16, birth of their third child, a daughter -Peter G. Verniero was married to 1989. named Kayla Elizabeth, on August 2, Lisa Ellen Gaede in Newport Beach, 1989. California on November 25, 1989. '87 -Helene Bertaud was married to -William L. Webber and his wife, They reside in Morristown, New Jersey. Jocelyn Pinoteau on June 9, 1990. Laurie, are pleased to announce the -CO Geoffrey Weirich and his wife, They reside in Paris. arrival of their third daughter, named Kelly, are happy to announce the birth -Laura L. Britton was married to Joan Leah, on Januaty 12, 1990. of their second child, Chelsea Rae, on Michael Josephs on May 27, 1989. October 21, 1989. Laura is an associate at Dechert Price '81-Nancy Holland Kerr an­ & Rhoads in Washington, D.C nounces the birth of a son, Alexander , 85-Brenda D. Hofman was Holland Kerr, on January 4, 1990. married to Lance Feis on January 20, , 88-Eric E. Boody and his wife, -James E. Schwartz was married to 1990. They reside in Chicago, where Ann Catherine, are pleased to announce Dr. Susan Lea Cohen on November 18, Brenda is a labor lawyer with Seyfarth, the birth of their first son, Hunter Eric, 1989 in White Plains, New York. Shaw, Fairweather & Geraldson. born October 18, 1989. James is an associate at the New York -James P. Lidon and his wife, Jean -Josiah C.T. Lucas and his wife, City firm of Carb Luria Glassner Cook Sih Lidon, Class of 1986, announce Sally, are the proud parents of their first & Kufeld. the birth of their first child, David Jake, child, a son named Josiah CT. "Trent" born on January 27, 1990. Lucas, Jr., born on April 24, 1990. '82-J. Phillip Carver was married to -Elizabeth A. York was married to Clara Boza on October 6, 1989 in James A. Schiff on June 24, 1989 in VOL U M E 9. NO .1 71

Obituaries

Class of 1939-Robert E. Kay, a former pitals, Inc., and a member of the Ameri­ ing and Communiry Renewal and a state senator in New Jersey, died on can Academy of Hospital Attorneys. commissioner on the state Board of January 24, 1990. He attended the Law Mr. Richardson is survived by his Equalization and Assessment. Mr. Sloan School after graduating from Duke wife, Margaret Wentzel Richardson; was a past president of the East University in 1937, and graduated from three sons, Lee, Mark and Scott; a Greenbush (NY) Republican Club and the South Jersey Law School, now brother, Robert, of San Francisco; and was a Rensselaer County Republican Rutgers University School of Law in two grandchildren. committeeman. He was also quite active Camden. Senator Kay, a senior partner in other civic organizations and was a in the Wildwood, New Jersey firm of Class of 1947-Harry W. Fogle of member of the Albany Police Pipe and Kay & Kay, was first elected to the New Seminole, Florida died in March of Drum Band. Jersey General Assembly in 1954, and 1988. For fifteen years he was a circuit Mr. Sloan is survived by his father, served there for several years. He served judge for Pinellas-Pasco Counties, twice Jack Sloan of Flushing, and a sister, in the State Senate from 1968-72. serving as chief judge. He had previ­ Joyce Sloan Rogero ofWashingronville, Surviving are his wife, Ella; two sons, ously served on municipal courts in St. New York. Glenn of Wildwood and Stewart of Petersburg, Pinellas Park, Gulfport and Wildwood Crest; a daughter, Patricia South Pasedena and practiced law in St. Class of 1980-Rick D. Horton died Lenza of Linwood; a stepson, Laurence Petersburg for twenty-five years. Judge on April 23, 1990. An artist, painter Morier of Medford Lakes; two step­ Fogle served as vice chairman of the and photographer, he was also a partner daughters, Amy Morier of Cambridge, Florida Sentencing Study Commission in the law firm of Horton and Lloyd in Massachusetts and Sara Hurley of and of the Florida Commission on New York City. A fellowship recipient Gaithersburg, Matyland; and ten grand­ Criminal Justice Task Force. He was a of The National Endowment for the children. member of the advisory council for the Arts in 1976, the Ingram Merrill Foun­ State Department of Corrections. dation in 1985, and the Pollack Krasner Class of 1940-Robert S. Puckett died Judge Fogle served for twelve years Foundation in 1986, Mr. Horton fre­ on March 9, 1988 of cancer. He at­ as a Little League district administrator, quently exhibited his work in one per­ tended the Law School during the year and was a former president and director son exhibitions in New York City, 1939-40, leaving to join the Army Air of the Police Athletic League of St. Pe­ Charlotte, Baltimore and Minneapolis. Corps. He retired from the Army in tersburg. He is survived by his wife, His work is included in many public, 1969 as a colonel, having received many Barbara; a son, Henry, J r. of Seminole; corporate and private collections includ­ commendations. He received his two daughters, Jennifer ofJacksonville ing the Museum of Modern Art in New master's and doctorate degrees in inter­ and Dee Dee Laughlin of Memphis, York City, the North Carolina Museum national relations from Georgetown Tennessee; his mother, Elsie Fogle of of Art, and Centre Georges Pompidou University. Marietta, Ohio; a sister, Eileen Gavin, in Paris. Mr. Puckett is survived by twO sons, also of Marrietta; and six grandchildren. Mr. Horton is survived by his par­ Robert, Jr. of Des Moines, Iowa and ents, Vance and Verla Horton of Con­ Ramsay of Arkansas; two daughters, Class of 1955--Raymon J. Hahn died cord, North Carolina; a brother, Vance, Evelyn ofJacksonville, Florida and Cary on November 10, 1989 of an apparent Jr.; and two sisters, Mary Delamura of of Oklahoma City; and five grandchil­ heart attack. He was a practicing part­ Charleston, South Carolina and Pat dren. ner in the firm of Bell, Hahn, Schuster, Williams of Rockville, Maryland. Wheeler & Williams in Pensacola, Class of 1942-C.H. Richardson, Jr. Florida. He is survived by his wife, Vir­ died February 12, 1990 in Louisville, ginia Harris Hahn; his mother; and a Kentucky. He was a self-employed at­ son. torney in Louisville and taught at the University of Louisville-Division of Class of 1974-Phil Sloan, of Clinton Adult Education. He served in the Heights, New York, died on April 18, Navy during World War II and was 1990. He was counsel to the town's director emeritus of Blue Cross-Blue Zoning Board of Appeals, a senior at­ Shield, general counsel for Baptist Hos- torney with the state Division of Hous- 72 DUKE LAW MAGAZINE

American Bar Association Reception ...... Monday, August G, 1990 Alumni Directory Planned Law Alumni Weekend '90 . . November 2-3, 1990 The Law Alumni Council has voted Conference on Career Choices ...... February 22, 1991 to sponsor an annual alumni directory . The Council took this action because of Barristers Weekend .... March 22-23,1991 the number of positive comments from .... April5-G, 1991 Board of Visitors Meeting alumni regarding the usefulness of the last (1987) directory and because of the rapid changeover in address informa­ The following classes will celebrate their reunions in 1990: tion. The annual directory will be pro­ Classes of 1944, 1945 and 194G (joint reunion) ...... 45th reunion duced from information currently on file in the Law School Alumni Office Class of 1950...... 40th reunion database. All alumni are therefore en­ Class of 1955...... 35th reunion couraged to keep their address informa­ Class of 1960 . .. 30th reunion tion updated in the Alumni Office . Class of 1965 ...... 25th reunion Complimentary copies of the direc­ Class of 1970...... 20th reunion tory will be sent to all alumni who have Class of 1975 ...... 15th reunion paid dues to the Law Alumni Associa­ Class of 1980. . . lOth reunion tion and/or made a gift to the Law School for 1989-90. To help defray the Class of 1985. . ... 5th reunion cost of the annual directory and other alumni programs such as the alumni The Law Class of 1940 celebrated a joint 50-year reunion with the Classes of 1938 seminars and the Career Conference, and 1939 in September, 1989. the Council voted to increase the an­ For more information on upcoming events, call the Law Alumni Office at nual alumni dues for the Law Alumni (919) 489-5089. Association to $25 per year.

Alumni enjoy renewing friendships during Barristers Weekend , 1990. CHANGE OF ADDRESS (Return to Law School Alumni Office)

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