VOLUME 5

Contents 2 Editor's Column / About the Cover 3 Current Issues 4 Baby M: The Legal System Confronts Conflicting Human Values Katharine T Bartlett 9 Apartheid and the South African Judiciary / Lawrence G. Baxter

16 Advertising and the Ethical Profession / Thomas B. MetzloJJ

22 The Tax Reform Act of 1986: The Impact on Support of Public Goods and Services / Richard Schmalbeck

30 About the School 31 Duke Law School Conference on Career Choices 35 Duke Society of Medical-Legal Affairs: Bridging The Gap Between Law and Medicine 36 The Duke Bar Association 36 BALSA and Duke Law School 37 Duke's Forum for Legal Alternatives: Activism, Education, and Mutual Support 39 The Student Funded Fellowships Program

DEAN EDITOR ASSOCIATE EDITOR Paul D. Carrington Evelyn M. Pursley Maria lsikli NUMBER 2

41 The Docket 42 Fulbright Scholars at Duke 45 Duke Law Alumni Pursue Diverse Second Careers 48 Alumnus Profile: Gary Lynch 51 Book Review: Justice et Argumentation 54 Specially Noted 58 Alumni News 67 Upcoming Events

Duke Law Magazine is published under the auspices of the Office of the Dean, Duke University School of Law, Durham, North Carolina 27706 © Duke University 1987

STUDENT REPORTERS BUSINESS MANAGER PRODUCfION Robert Nagy Mary Jane Flowers Graphic Arts Services Christopher Petrini David Schwarz DUKE LAW MAGAZINE I 2

Editors Column About the Cover In this issue, the Duke Law members in the Fulbright program, Magazine celebrates the diversity including several faculty members of interests and expertise among who recently received grants to Duke Law School alumni, faculty teach and study abroad. Also fea­ and students. Several faculty mem­ tured are several alumni, including bers share their views on matters of a novelist, an artist and an entre­ topical interest, including the Baby preneur, who continue to practice M case and the surrogate mother­ law while claiming success at other hood issue, attorney advertising, endeavors. Our alumnus proftle fea­ some effects of the new tax law tures Gary Lynch, who is currently and the role of the judiciary under serving as Director of Enforcement South Africa's system of apartheid. at the SEC, and our book review We continue the series of articles reports on a collection of essays on on student organizations currently law and philosophy co-edited by Guy operating at the Law School in the Haarscher, a visiting professor at About the School section. This the Law School. The remainder of issue features some groups which that section focuses on the current show the diversity of interests of activities and accomplishments of our student body. A Significant our alumni and events at the Law The cover reproduces a painting, addition to the Law School calen­ School. Full Moon Behind Clouds, 1987, dar, of importance to students and The Alumni Activities feature by Rick Horton, '80. An article on alumni interested in placing Duke (including Personal Notes and Obit­ Rick's success as an artist since grad­ Law students in compatible jobs, is uaries) is now a regular part of the uating from Law School appears in reported in the article on the Con­ Docket. We have been pleased by the Docket. ference on Career Choices. the response to this feature and en­ The transparency for our use In the Docket, we continue to courage you to continue to send us in reproducing the painting on the highlight the personal and profes­ news of the milestones in your per­ cover was kindly provided courtesy sional accomplishments of Duke sonal and professional careers so of Gimpel & Weitzenhoffer Gallery Law School faculty and alumni. In that we can share the news with (New York and London) and the this issue we report on the involve­ the rest of the Duke Law Alumni Jerald Melberg Gallery, Inc. (Charlotte, ment of Duke Law School faculty family. North Carolina).

DUKE LAW MAGAZINE 14 Baby M: The Legal System Confronts Conflicting Human Values Katharine T. Bartlett *

aby M 1 focuses for us an irreconcilable conflict between some of our most basic values: the sanctity of motherhood on the one B hand; the powerful human drive for genetic reproduction and the value of keeping one's word on the other. These values play a critical role in how we define ourselves and our purpose on this earth. Most of us have experienced some ambivalence in this area. How courts decide cases like Baby M. becomes part of the background against which we resolve this ambivalence. We want them to come out right. Given these stakes, the trial court's decision in the Baby M case is disappointing. The custodial award of Baby M. to her biological and by then psychological father, William Stern, is supportable taking as given the circumstances of March 31, 1987: Baby M. had, by that time, been in the custody of the Sterns for eight months (since she was four months old) and a change of custody at that point would have been cruel. The delays creating these circumstances, as well as the "temporary" placement of Baby M. with the Sterns, are more difficult to justify. What I will address here is not the outcome of the case, however, but the basis upon which the case was decided. The court's approach is troubling. Despite its child-focused rhetOric, the court centers on the rights of the respective parents rather than the child. It offers a blunt inter­ pretation of those rights rather than a refmed analysis of their meaning and application. It focuses on reci­ .. Professor of Law, Duke University School of Law. procity of obligations and fairness rather than the Professor Bartlett began teaching at Duke in 1979. promotion of parent-child relationships and on fIxed, Her special areas of interest include child advocacy, stereotypical notions of appropriate parental conduct family law, and public school law. rather than realistic understandings of the wide range This paper includes material from a presentation of ways parents can demonstrate commitment to made by Professor Bartlett at a program on surro­ their children. gate parent contracts sponsored by the Womens Law The heart of the court's opinion was its fInding Society at Duke Law School on March 17, 1987 and that the surrogate parenting contract is enforceable. sections from a piece by Professor Bartlett entitled Under this contract, Mary Beth Whitehead agreed, Courts Not Bound by Parental Agreements, in a col­ for the payment of $10,000, to become inseminated lection of opinions by law professors published in the with the sperm of William Stern; to carry the child to New Jersey Law Journal on Feb. 26, 1987 It is part term after conception; to deliver the child to Mr. Stern; of a larger work-in-progress on claims by women and to have her parental rights terminated. She agreed for exclusive parenthood. also not to form a parent-child relationship with the VOL. 5, NO.2 / 5

child. When, after the birth, she changed her mind Despite its child-focused rhetoric; the and wanted to keep the child, months of procedural wrangling and a six-month trial ensued. The trial court court's approach centers on the rights enforced the terms of the contract giving custody to of the respective parents rather than Mr. Stern and terminating Mrs. Whitehead's parental rights. It also granted the adoption of the child by the child. Mrs. Stern. To hold the contract enforceable, the trial court had to bypass the available New Jersey law. New Jersey, term child, like the services of a farmer who grows like all other states, prohibits agreements involving com, may change the terms of the exchange but it makes consideration paid or promised in connection with a the child (like com) no less an object of commercial placement for adoption.2 Courts are not bound by value than if she were the explicit object of purchase. any agreements made by parents that relieve them of That Mr. Stern is the child's biological father reduces their parental obligations or that determine custody only slightly the indignity and risks of commodifica­ of their children.3 New Jersey law also, again like other tion, for it does not negate the fact that money is states, specifies procedures that must be followed and paid for the purpose of obtaining a child who would findings a court must make before a private adoption otherwise "belong" to another. can be ordered.4 Adoption requires that the rights of Adoption laws are also intended to prevent the exer­ the child's parents be terminated, that the parents fail tion of pressure on and exploitation of women whose to object to the adoption, or that the parents have personal circumstances may make them vulnerable to intentionally abandoned the child or substantially arrangements under which they give up their babies for neglected their parental duties. 5 money: The trial court concluded that women con­ The "surrogate parenting agreement" in this case was sidering surrogacy are not subject to the same kinds drafted in a deliberate attempt to circumvent the baby­ of pressures as already-pregnant women. This distinc­ selling prohibition by characterizing Mrs. Whitehead's tion is also problematic. A legislature that declines to commitment as the performance of services rather authorize the enforcement of surrogacy contracts may than the sale of a product, and by providing for delivery have concluded quite sensibly that legal endorsement of the child only to Mr. Stern, the child's biological of surrogacy contracts will add to the perceived accept­ father, rather than to him and his wife. The court ability and thus frequency of surrogacy arrangements, found this choice of terminology determinative, con­ making pregnancy and childbirth for pay an option cluding that the contract described a transaction that to which women in severe economic straits may increas­ the legislature did not intend to regulate through its ingingly be vulnerable. adoption laws which, therefore, did not apply: As for New Jersey, like other states, does not allow a its jurisdiction to terminate Mrs. Whitehead's parental parent to terminate her rights voluntarily until after rights on grounds other than those specified by statute, the birth of the child. Appellate courts in the state the court held that its general authority to act as parens have emphasized the state's interest in assuring that patriae was sufficient to terminate Mrs. Whitehead's parents make careful, well-considered decisions to rights on a "best interests of the child" standard. surrender their children for adoption.7 There are The court's treatment of adoption and termination good reasons for assuming that decisions cannot be laws is remarkable. Even if these statutes were not well-considered in advance of the birth of the child. enacted to address the issue of surrogacy, this fact The law expects that parents will develop emotional hardly constitutes a basis to disregard them. These feelings toward their children, will consider their statutes represent our best information on how the welfare, and will attempt to act in their best interests; legislature regards the transfer and termination of indeed, in automatically assigning responsibility for parental rights and responsibilities. Absent an express children to their parents, the law depends upon their Signal from the legislature that it considers surrogacy doing so. That mothers will develop these feelings a different matter (and the New Jersey legislature had during the course of a pregnancy, notwithstanding considered and failed to enact legislation that would agreements they may make to the contrary, demonstrates have treated surrogacy differently6), the court's decision the strength of the connection between parent and to set them aside is inappropriate. child. It is in society's interest that these impulses be As to whether surrogacy should be treated like respected, and that the unwillingness of a parent to adoption, the policy considerations are more similar follow through on her intention to give up a child to than the court acknowledges. State adoption laws are another be viewed as understandable and defensible, concerned that babies not become subjects of com­ not wrong or pathological. Enforcement of a surrogacy merce. The distinction made by the court between contract through specific performance against the selling a child and selling one's procreative services is surrogate mother would assume, and give legal virtually meaningless with respect to this danger. Endors­ encouragement to the view, that parents should be ing the attachment of monetary value to the services able to set aside their parental sentiments at will (if necessary for a woman to nurture a fetus to a full- the price is right). DUKE LAW MAGAZINE / 6

A legislature that declines to autho­ between the feuding adults. In its constitutional analysis, for example, the court reasons: "If a man may offer rize the enforcement of surrogacy the means for procreation then a woman must equally contracts might well conclude that be allowed to do so." The court's analysis as to these matters might be questioned on its own terms. One legal endorsement of surrogacy con­ wonders, for example, whether even a man would, or tracts will add to the perceived should, be compelled to specifically perform under a contract to sell his sperm if he changes his mind after acceptability and thus frequency of the agreement is made. One wonders also whether sperm surrogacy arrangements) making donation is an activity comparable to pregnancy and childbirth for purposes of this constitutional analysis. pregnancy and childbirth for pay an But my objection here is an even more basic one-it option to which women in severe is to the use of these concepts in any form in child custody disputes. economic straits may increasingly The court writes: "A person who has promised is be vulnerable. entitled to rely on the concomitant promise of the other promisor." Setting aside the relevant doctrinal questiOns this statement raises with which the court fails to deal-did Mrs. Whitehead make the kind of The law assumes that, ordinarily, parents will not promise upon which Stern was entitled to rely? And give up their children. DOing so is an extraordinary if she did, is the remedy of specific performance and solemn act requiring in New Jersey an investiga­ available?-a fundamental aspect of this reasoning is tion by an "approved agency" and approval of a the underlying assumption that adults become entitled court before an adoption can be ordered.8 To allow to children on the basis of such concepts as mutuality parties to make the termination of parental rights a and reciprocity. According to the court, Mrs. Whitehead subject for private negotiation and exchange enforceable agreed to terminate her rights; the court should thus in a court of law gives new meaning to parenthood; give effect to her agreement. Put another way, in it becomes a right-an alienable right-belonging to terminating her rights, the court is simply giving to an individual, rather than a relationship that, once Mrs. Whitehead what she deserves. 9 begun, we expect a parent to sustain and protect. Legal doctrines built around notions of mutuality Having abandoned the available statutes, the court of contract, equal treatment, reciprocity, and deserved­ attempts to strengthen the basis for its conclusion ness build upon the model of freely operating, autono­ that surrogacy contracts are enforceable by resort to mous agents. These agents operate for their own bene­ the u.s. Constitution. The court identifies a constitu­ fit to maximize their own advantage and are entitled tional right of non-coital reproduction: "if one has a to whatever gain or pain they experience as a result. right to procreate coitally, then one has the right to This model simply does not fit the context of child reproduce non-coitally." The court may be correct in custody. With respect to disputes over children, what identifying a right of non-coital reproduction. But it should be emphasized are the interests of the child; fails to justify its assumption that such a right means the rights of the parent are not legitimate ends in the right to specific performance of a contract under themselves but rather the vehicle through which it which private parties have sought to rearrange the is assumed that children's interests are best served. terms of parenthood. Children are best served when child custody doctrine In fact, the cases relied upon by the court in defIDing reflects the importance of parental responsibility for a right to non-coital reproduction define a right to be children, not the individual rights of parents. Responsi­ free from certain kinds of state interference with activi­ bility, in turn, is fostered when emphasis is placed on ties that individuals engage in as sexual beings or as parents. They do not in any direct way address the right of private parties against one another. Thus, although these cases may well render unconstitutional Enforcement of a surrogacy contract a state prohibition of surrogacy arrangements by parties who remain willing to perform under them, they do not through specific performance against support the claim of a parent like Mr. Stern to state the surrogate mother would assume, enforcement of a private contract against another parent. To the contrary, the privacy cases are protec­ and give legal encouragement to the tive of parents who have developed relationships with view., that parents should be able to their children and would thus seem to weigh against the termination of Mrs. Whitehead's rights. set aside their parental sentiments at What ultimately drives the court's analysis in Baby will (if the price is right). M. is a concern for reciprocity, fairness, and equality VOL. 5, NO.2 17 the relationship between parent and child. Where With respect to disputes over children, relationships develop, the law should attach certain predictable consequences to them, reinforcing the what should be emphasized are the critical (desirable) cultural assumptions that parents interests of the child; the rights of the should, and will, assume responsibility for their children and, in so doing, put the interests of their parent are not legitimate ends in them­ children ahead of their own. A rule that enforces pre­ selves but rather the vehicle through conception agreements altering the asSignment of parenthood makes parenthood a relationship about which it is assumed that children s which bargains can be made for the parent's own interests are best served. advantage, and thereby redefmes and degrades that relationship. The natural father in a surrogacy arrangement wives should be understanding of their husbands; also, of course, has a biological connection to the mothers should assume their children will go to college child, a connection that should be reinforced and and follow the recommendations of their children's respected. My point is not that this relationship should teachers; and so on. While taking a child out of state be ignored, but only that the maternal connection to in violation of a court order is irresponsible and may the child should not be foreclosed on the basis of properly be taken into account in judging a parent's contract. Custody law, not contract law, should defme stability and ability to serve as a parent, one senses in the status of both parents with respect to the child. reading the opinion that the court is unduly insensi­ Without an enforceable contract, a court in a custody tive to the emotional reactions of a mother, post­ dispute developing from a surrogacy arrangement partum, who finds herself at risk of losing her new­ would be left to follow the state law relating to the born child. This is seen perhaps most clearly in the custodial rights of unwed parents. Under the relevant court's condemnation of her for developing strong law in New Jersey; both parents are to be treated equally; emotions toward her child, changing her mind, and a court determines the best interests of the child. By wanting to keep her child. But what one might ask, this standard, the trial court might have properly reached could be more natural; indeed, how would we prefer the custodial result in favor of Mr. Stern. It would not, mothers to react to the experience of pregnancy? however, have been able to terminate Mrs. Whitehead's In some jurisdictiOns, the law in a custody dispute parental rights because adoption over the objection between unwed parents over a newborn will favor of a natural parent cannot be accomplished under a the mother over the father because of her prior best interests standard alone. 10 connection to the child through pregnancy. Many Moreover, a best interests standard would not have would say that this preference is unfair to fathers, justified some of the court's analysis of the compara­ and perhaps it is. But I repeat: the object of the law tive fitness of the respective parents. For example, the here is not fairness to either parent, but to the child. court made repeated note, sometimes with explicit And to the child, and to children generally; it is most disapproval, of the fact that Mrs. Whitehead dominated important that the law affirms the instincts of parents her husband in their marriage. Also considered rele­ to be parents and links responsibility for the child to vant by the court was expert testimony that Mrs. existing relationships. When both parents feel strong Whitehead acted intuitively rather than rationally; instincts in favor of protecting and taking care of the that she was hard to influence once her mind was child, it is unfortunate that a continuing, meaningful made up; that the reason she wanted to have another relationship with both parents is usually impractical. child was to fulfill herself as a woman; that she had Then, a hard choice must be made. In some cases, the no empathy for her husband's alcoholism; that she biological father may be required to accept the did not place as high a value on education as the disappointment of his expectations of parenthood, in Sterns did; that on at least one occasion she thought the face of an existence of a parent-child relationship she knew her son and his educational needs better that, through the vagaries of biology, will give an than her son's teacher; and that she and her husband initial advantage to the mother. In the right case­ were financially less secure than the Sterns and had and perhaps this is one of them-the father may be once filed for bankruptcy. The court strongly con­ able to demonstrate a stronger commitment to the demned Mrs. Whitehead for the threats she made child and a greater ability to meet her needs than the against the baby in her efforts to persuade Mr. Stern mother. But in this demonstration, it is responsibility; not to interfere with her custody, her "elopement" commitment and relationship, not fairness and with the baby to another state in violation of a court equality, that should make the difference. order, and her apparently deliberate actions to gain Adults can be disappointed in many ways when publicity. they set out to have children, often for reasons totally Several of these considerations reflect fixed and beyond their control. We can grieve for these individ­ unrealistic notions of how parents, especially mothers, uals. But their disappointment, their good works, their should act. Wives should not dominate their husbands; noble efforts to overcome the disadvantages they may DUKE LAW MAGAZINE / 8

I. In re Baby M., 13 FAM . L. REP. (BNA) 2001 (N.]. Super. Ct. Ch. . to hold a woman to her intention Div. , Mar. 31, 1987). 2. See N.]. REV, STAT. § 9:3-54 (Cum. Supp. 1986). to bear a child without developing 3. See, e.g. , Bergen County Welfare Board v. Cueman, 164 N.] .Super. 401, 396 A.2d 620 Guv. & Dom. Ct. 1978); Wist v. Wist, 101 N.]. Super. the instincts of motherhood-is to 509, 503 A.2d 281 (1986); S.M. v. S.]., 143 N.]. Super. 379 (Ch. Div. 1976). See also N.]. STAT. ANN. § 9:17-45(d) (Cum. Supp. 1986) (paternity action redefine motherhood in a way that may be brought notwithstanding any contrary agreement between mother and alleged father) . will benefit neither children nor 4. N.J. STAT. ANN. § 9:3-48(cXl) (Cum. Supp. 1986). 5. N.]. STAT. ANN. § 9:3-48 (cXl) (Cum. Supp. 1986). society as a whole. 6. See 9 FAM. L. REP. (BNA) 2695 (describing SB 3608). The legislature has also considered, without adopting, a bill that would have made surrogate parent contracts illegal. See 9 FAM. L. REP. (BNA) 2356 face in achieving parenthood, and even the agreements (describing AB 3139). 7. See, e.g. , Sees v. Baber, 74 N.]. 201 , 377 A.2d 628 (1977). they may be able to make before the child's concep­ 8. N.]. STAT. ANN. § 9:3-48 (Cum. supp. 1986). tion, are not themselves enough. These factors can­ 9. Another aspect of deservedness seems to enter into the court's not support an entitlement to a child that automati­ analysis when it compares Mr. Stern's family situation-since 1983 and until the birth of Baby M. , he was the only surviving member of all cally requires legal recognition in derogation of an branches of his family-with that of Mrs. Whitehead-the Whiteheads actual relationship between mother and child estab­ already have two children, which they at one time had thought was "the lished through the experience of pregnancy and child­ perfect family." 10. See N.]. STAT. ANN. § 9:3-48(cXl) (Cum. Supp. 1986). Dicta in a birth. To hold otherwise-to hold a woman to her number of Supreme Court opinions suggest that it would be unconstitu­ intention to bear ;l child without developing the tional to terminate the rights of a natural parent who had developed a instincts of motherhood-is to redefine motherhood relationship to her child on a best interests standard. See Santosky v. Kramer, 455 U.S. 745 , 760 n.1O (1982) (citing Quilloin v. Walcott, 434 U.S. in a way that will benefit neither children nor society 246, 255 (1978), quoting Smith v. Organization of Foster Families, 431 as a whole. U.S. 816, 862-63 (1977) (Stewart, ].)). VOL. 5, NO.2 / 9 Apartheid and the South African Judiciary Lawrence G. Baxter *

We also like to recall those grand moments in which judges upheld the prinCiples of liberty and democracy in the face of authoritarian government. In 1879, when a part of the Cape Colony was in a state of rebellion, a Griqua chief and his son, suspected by the government of instigating rebellion, had been unlawfully detained. The chief justice, Sir John Henry de Villiers, granted their petition for habeas corpus. He strongly rejected the government's contention that this action would foment further disturbances: It is said the country is in such an unsettled state, and the applicants are reputed to be of such a dangerous character, that the Court oUght not to exercise a power which under ordinary circumstances might be usefully and properly exercised. The disturbed state of the country oUght not in my opinion to influence the Court, for its first and most sacred duty is to administer justice to those who seek it, and not to preserve the peace of the country. If a different argument were to prevail, it might so happen that injustice towards individual natives has disturbed and unsettled a whole tribe, and the Court would be prevented from removing the very cause which produced the disturbance. 1 Soon afterwards the chief justice issued another writ of habeas corpus, and he was then able to observe with satisfaction that "none of the disastrous conse­ quences which were confidently predicted [by the ecently; while standing at the library check­ Crown in the earlier case] ever ensued."2 out counter, a student noticed the journal Nearly two decades later the judiciary in the old in my hand. He pondered for a moment, South African Republic, now the Transvaal, clashed R then offered this reflection: "Hmmm-the head-on with both President Kruger and the Trekker South African Law Journal; isn't that an oxymoron?" Parliament. The Court, quoting (in Dutch translation!) I am not sure he quite appreciated how complex his from Alexander Hamilton's Federalist No. 78 and from rhetorical question really was. John Marshall's opinion in Marbury v: Madison,J South African lawyers have always been proud of declared a resolution unconstitutional,4 thereby pre­ the rich blend of Roman-Dutch and Anglo-American cipitating a constitutional crisis which was resolved common law that constitutes their legal system. We only by the eventual departure of the Chief Justice like to believe our judges have taken the best from each for another South African bench. to build a body of contractual, delict (tort), property; Much later, South Africa's highest court, the Appellate criminal and commercial law doctrine that is sophis­ Division, took a heroic stand against parliament and ticated, rich and flexible. the executive when the new Nationalist government attempted-successfully in the end-to disenfranchise non-white voters in the 1950's.5 In the process the * Professor of Law, Duke University School of Law. A court attracted international admiration. native of South Africa, Professor Baxter came to Duke But the South African courts have more recently in 1985 from the University of Natal. This article is acquired a different reputation. To some South Africans an updated version of a talk given at Duke Law Alumni and many foreign observers, the legal system now seems Weekend on September 27, 1986. a grotesque parody of everything Western lawyers v:alue. DUKE LAW MAGAZINE I 10

South African lawyers have always been such as these led one jurist to liken the role of the proud of the rich blend of Roman­ South African judiciary to that of an umpire who has Dutch and Anglo-American common been stripped of the power to rule on all the essential aspects of the ball game.10 law that constitutes their legal system. The executive also controls the appointment of we like to believe our judges have judges, all of whom, with one recent exception,11 are white. Unlike the lower magistracy, which is staffed taken the best from each to build a entirely by employees of the Department of Justice, body of contractual, delict (tort), the judges of the Supreme Court do enjoy security of tenure until the mandatory retirement age of 70, but property, criminal and commercial it is inevitable that the appointment power should law doctrine that is sophisticated, influence the character of the judiciary to some degree. In 1955, after the government had suffered a rich and flexible. series of adverse decisions in the Appellate Division, the size of the court was increased to enable the government to add six judges to the five then Sitting. Critics have used various epithets: "quintessentially These factors, coupled with the fact that the govern­ unjust," "wicked," "repressive."6 Inn Fuller once used ment has remained in power for nearly forty years, South African legislation to illustrate his thesis that led to the creation of a judiciary that displayed meek legislation lacking certain moral characteristics could acquiescence in the face of an increasingly draconian not be described as "law" at all. 7 A fact-fmding team body of apartheid and security legislation. of the International Commission of Jurists recently During the 1960's and 1970's the role of the courts announced that "the 'judges' presence on the bench as protectors of liberty and equality reached its nadir. lent 'undeserved credibility' to a legal system in which In a manner reminiscent of some judges during the personal and political freedom was left unprotected;"8 slavery era in the United States,12 the South African and some jurists have called upon the judges to judiciary protested their inability to ameliorate the resign from the bench. harshness of the legislation they were called on to There are a number of reasons. First, the South apply. The most notorious example was Minister of African government has used sweeping, often draconian, the Interior v. Lockhat, 13 where the court had been legislation as the primary means of articulating and asked to rule that group areas legislation (which requires implementing the policy of apartheid. The constitu­ that land be demarcated for exclusive use by members tional model that was adopted in South Africa is that of one race group) should be applied in a manner of parliamentary government. The executive is theoreti­ that did not have disparate impact as between races. cally accountable to parliament; in practice, however, Notwithstanding the existence of an important it has been able, through the party system and a precedent to this effect,14 Holmes JA, speaking for permanent parliamentary majority, to gain full control the unanimous court, concluded that over the legislature. With one trivial exception (relat­ [t]he Group Areas Act represents a colossal social experi­ ing to the official languages), the Republic constitu­ ment and a long term policy. It necessarily involves the tion contains no protection of human rights; these movement out of Group Areas of numbers of people can be infringed by ordinary act of parliament. It throughout the country. Parliament must have envis­ therefore fails to operate as a significant restraint. Unlike aged that compulsory population shifts of persons their American counterparts, judges cannot strike occupying certain areas would inevitably cause disrup­ down acts of the "sovereign" parliament. They are tion and, within the foreseeable future, substantial confmed to interpreting and applying this legislation. inequalities. Whether all this will ultimately prove to be Second, the government has attempted to foreclose for the common weal of all the inhabitants is not for the Court to decide. 15 the remaining avenues of review insofar as administra­ tive rules, orders, and actions are concerned. Although Even where statutes were vague, judges seemed to theoretically subject to judicial review (for want of have little difficulty filling in the details, thereby compliance with the relevant act of parliament), the intensifying the harshness of their application. An governing statutes have themselves frequently con­ illustration is Rossouw v. Sachs, 16 where the Appellate tained provisions purporting, in the clearest possible Division ruled that a detainee was entitled to no terms, to preclude any judicial review whatsoever. more daily exercise or reading material than that One of the most explicit examples is section 29 of officially permitted, even though the relevant act of the Internal Security Act,9 which reads: "No court of parliament was silent on this point and despite the law shall have jurisdiction to pronounce upon the existence of precedent to the effect that a prisoner Validity of any action taken in terms of this section, awaiting trial retains whatever rights the empowering or to order the release of any person detained in legislation does not expressly take away.17 By a spec­ terms of the provisions of this section." Provisions tacular piece of anti-libertarian reasoning, Ogilvie VOL. 5, NO.2 / 11

During the 1960's and 1970's the role Thompson JA took the view that since the statute already constituted a drastic inroad into traditional of the courts as protectors of liberty principles of South African criminal procedure, one and equality reached its nadir. In a had to assume that it also intended to eliminate all residual rights of detainees other than the right to manner reminiscent of some judges basic "necessities"!18 during the slavery era in the United A leading South African jurist has concluded that "the Supreme Court, since 1950 when the total on­ States, the South African judiciary slaught on freedom and legality began, has failed protested their inability to ameliorate (with some exceptions) to protect individual liberty, to understand and apply the requirements of due the harshness of the legislation they process, to check or restrain arbitrary action and to were called on to apply. speak resolutely against uncivilized and sometimes barbarous official behavior."19 Casual observers might be tempted to conclude the University of the Witwatersrand and Director of that the South African legal system not only fails to its Center for Applied Legal Studies. During visits to protect the vast majority of South Africans but actively the United States he had been impressed by the facilitates the imposition and maintenance of apartheid. success of the civil rights movement in the courts. Like the legal systems of Nazi Germany and various Of course, the United States Constitution was central other totalitarian regimes of recent history, it must be to the movement's strategy, and South Africa lacks a a gigantic and tragic farce. 20 But such a conClusion counterpart. But Dugard was also influenced by the would be too facile. Not only does it depend upon views of the American legal realists, from whom he simplistic analogies and a narrowly segmented view of learned that judges enjoy a much greater range of the legal system which overlooks large areas of the law choice in the characterization of evidence and the that are almost untainted by apartheid legislation, but construction of statutes than they are often prepared it also fails to take into account the fact that thousands to admit. He began to advocate the persistent resort of black South Africans, including most of those who to the courts in South Africa as a means of resisting are politically sophisticated and of radical persuasion, government action. In 1974, while visiting at Duke, regularly resort to the courts in an attempt to challenge he wrote the bulk of his most important work, various facets of apartheid. It overlooks the fact that Human Rights and the South African Legal Order;22 a many (black and White) South African lawyers, possessing comprehensive study and critique of the role of the impeccable democratic and human rights credentials, South African judiciary in the maintenance of human regard the legal system as providing at least a partial rights in South Africa. protection against the onslaught of apartheid. Criticisms such as those leveled by Dugard and Most important of all, such a conclusion does not others at first enraged the judges. They were met with square with the dramatic judicial about-turn that has stern reproach from the ChiefJustice. 23 One outspoken occurred during the past five years. This truly remark­ critic, the late Barend van Niekerk, was actually twice able development merits some description since it prosecuted for contempt of court.24 But some judges has been little noticed or understood in the United gradually began to respond. Towards the end of the States. 21 How, I am often asked, can judges do much 1970's, and especially since about 1983, a few started in a system that has the features I have briefly described? handing down decisions in the field of race and security Faced by a sovereign, executive-controlled parlia­ legislation that were surprisingly adverse to the govern­ ment, no bill of rights, powers delegated to officials ment. A Natal judge, setting aside an influx control and the police in far-reaching terms and protected order that had been issued against an African who by a web of unreviewability clauses, what could the had been deemed "idle and undesirable," severely judges really do to protect individual rights and polit­ criticized the legislation concerned in terms that attracted ical expreSSion, even if they wanted to? The answer considerable local publicity 25 A judge in the Transkei is, quite a lot. But it requires a major shift in judicial granted habeas corpus to a detainee who had been held attitude-a shift in which Duke Law School can claim under broadly-couched security legislation. Echoing a small part! Sir Henry de Villiers, he declared that "the criteria As the pro-apartheid attitude of the Appellate [for] ascertaining the intention of a statute do not Division became clear during the 1960's, a few South differ according to the relative tranquility or disrup­ African jurists began to level criticism at the judges tion of a community, but remain the same."26 for their failure to apply presumptions of interpreta­ This trickle of judicial resistance has since become tion that were more favorable to individuals than to a flow that even the two states of emergency, accom­ the government. Among the most prominent of the panied by regulations that are breathtaking in their critics was John Dugard, a former visiting professor sweep, have failed to stem. At all levels and in most at Duke Law School and presently professor of law at provincial jurisdictions of the Supreme Court, judges DUKE LAW MAGAZINE / 12 have declared executive action under widely-framed interpretation, the courts have rejected as inadequate statutes governing forced removals,27 pass law viola­ the provision by the government of sham or "skeleton" tions28 and influx controF9 to be illegal. In 1982 they reasons for detentions (in other words, mere regurgita­ effectively paralyzed the South African government's tions of the empowering statutory clauses), 43 and in attempt to denationalize almost a million blacks by some cases have imposed fair hearing requirements transferring their residential areas to an independent even where the legislation seemed not to contemplate country, Swaziland.30 An order of the State President that these should be observed.44 They have ordered requiring removal of a black tribe from its ancestral prison officials to allow detainees access to legal advisers home against its will was declared unlawful, notwith­ in the face of regulations to the contrary.4S standing the fact that in 1975 the South African Parliament Using the technique of strict construction, judges had attempted by resolution to validate his action in in Natal and the Transvaal have rejected certificates advance.31 The administration of influx control was presented by the Attorney-General purporting to pro­ severely hampered by a series of decisions that imposed hibit the granting of bail to persons charged with liberal constructions upon the narrow statutory rights security offenses. 46 In a particularly outrageous instance of residence enjoyed by Africans living in urban areas;32 of police intimidation, the traditional protection of these decisions have affected the lives of thousands, attorney-client privilege was reinforced when a court ruled illegal the police's seizure on warrant of a written statement taken from a witness by a firm of attorneys This trickle ofjudicial resistance has acting for the wife of a detainee who had died while under arrest. The court very strictly construed the since become a flow that even the two ostensibly-broad wording of the warrant.47 states of emergenc.M accompanied by Some judges have begun to subject official action to vigorous, "hard look" review. In Natal, the Western by regulations that are breathtaking in and Eastern Cape and the Transvaal they have set aside their sweep) have failed to stem. banning orders placed upon individuals,48 meetings49 and funeralsso by officials acting under broadly-phrased security legislation. In Natal, especially, they have amel­ and potentially hundreds of thousands, of African iorated the draconian scope of the statutory offenses urban dwellers, and the government was eventually against the state, which have been used to harass oppo­ compelled to repeal the governing legislation.33 A nents of the government, by imposing tough procedural series of decisions of the Transvaal Provincial Division and evidential requirements,Sl by restricting the scope has also effectively brought to a halt prosecutions of of the offensess2 and by inserting a requirement of blacks living in white areas in violation of group subjective, specific mens rea where the wording of areas legislation. 34 the provisions has remotely permitted. S3 Most striking of all has been the judicial response They have also become more receptive to allega­ in litigation involving the actions of the police and tions of maltreatment. Courts around the country have security forces, under both the permanent security upheld claims of torture by ex-detaineess4 and have legisiation3S and the states of emergency36 Even in issued interdictsSS to the extent that the government strong democracies, such as Britain and the United has been driven, in many cases, to release detaineess6 States, the courts have a predictable tendency to defer and settle damages claims out of court for fear of per­ to the executive at times of national crisis.37 Nor should mitting yet further adverse precedents to be created.s7 we assume that this occurs only at a time of war/8 Some judges have adapted a remedy, derived from the contrary is amply illustrated by recent cases in English commercial law, which authorizes the pre­ both Britain39 and the United States. 40 emptive search, without notice, of a police station or Yet it is in the area of state security that the activism prison for the purpose of obtaining evidence relating of the South African courts has been greatest. In Natal, to allegations of torture or maltreatment. 58 the Eastern Cape, the Transvaal and Namibia, in the The government seems to have assumed that by Appellate Division and in other provincial jurisdictions, imposing a state of emergency and suspending the opera­ judges have rendered ineffective the most broadly tion of the meager safeguards of Parliamentary legisla- phrased unreviewability clauses in the South African statute book. Though expressly forbidden to review the lawfulness of police action in detaining individuals Even in strong democracies) such as or to grant writs of habeas corpus and related remedies, they have done so repeatedly and have ordered the Britain and the United States) the release of numerous detainees. 41 The courts have courts have a predictable tendency to literally interpreted the preclusionary clauses, including the one quoted in this article, out of existence. 42 defer to the executive at times of Employing expansive canons of construction and national crisis. drawing on common law presumptions of statutory VOL. 5, NO.2 I 13 tion it would avoid embarrassment and obstruction The government seems to have assumed in the courts. After all, a state of emergency, like martial law, is usually thought to suspend, in practice if not that by imposing a state of emergency in theory, the jurisdiction of the courts. But here too and suspending the operation of the judicial protection has not been entirely eliminated. Various courts have ruled sections of the emergency meager safeguards of Parliamentary proclamations affecting detainees, 59 the press,60 freedom legislation it would avoid embarrass­ of expression,61 and public gatherings62 invalid. Under the second state of emergency (imposed in June of ment and obstruction in the courts. 1986) there had already been 218 court applications After all} a state of emergen~ like against the validity of the declared state of emergency itself, or actions taken under it, by late September of martial law, is usually thought to 1986!63 suspend} in practice if not in theory, These decisions have forced the government to amend and tighten the wording of the emergency proc­ the jurisdiction of the courts. ~amation and associated regulations under the glare of mternational publicity and without ever being sure that it has plugged all the gaps. And now, having created The most the judges can do is serve to reduce the oppres­ an unwieldy tricameral parliamentary system in which sion, help to protect the agents of political change, South Africans of Indian descent and of mixed race and display the virtue of an independent judiciary to have a limited role, the government can no longer rely South Africa's future rulers. Perhaps in the end, through on the speedy assistance of a compliant "sovereign" a combination of increasingly vicious reactions on legislature to validate its illegalities; instead it has been the part of the government, exhaustion on the part forced, after fIrst having to wait until Parliament actu­ of some judges and recalcitrance on the part of others, ally is in session, frustratedly to coax unwilling legis­ every ember of judicial protection will be snuffed lators, many of whom have resorted to dilatory tactics out. to stall legislative amendments.64 Nevertheless, we should not underestimate the signifi­ The full implications of the cases described here cance of judicial resistance. The judiciary enjoys immense as well as their overall impact, require much fuller exanti­ prestige and credibility in the eyes of most whites, and nation and should not be exaggerated. There have also the business community could not function without been a signifIcant number of decisions in favor of the it. To this extent, therefore, it is a branch of government government, and judicial activism is probably still con­ that is very diffIcult to subordinate, which, through its fmed to a minority of judges. There are still a number very actions and criticism, can help further to erode of judges who appear to be adopting the views and the monolithic power base upon which the govern­ attitudes of their counterparts of the 1960's and 1970's; ment presently relies. Parliament could theoretically some have meted out savage sentences to youthful abolish the courts altogether, or render judges remov­ able at the whim of the executive. Or the government protesters; the notorious Delmas treason trial proceeds 66 in the Transvaal. could just ignore their decisions. But until this has Even so, the mere existence of contrary decisions, happened, what the South African judges have been let alone their actual number, is remarkable. This raises doing to resist apartheid, what they can and should a wide range of questions concerning the constitutional­ be doing, and whether they should collectively resign ist and interpretive theories that might explain these are issues that demand much more complex analysis decisions. It reminds us of the obvious but frequently than has hitherto been accorded them in the United States. forgotten f~ct that judges, having once acquired tenure, often surpnse those who appointed them. More impor­ 1. In re Willem Kok and Nathaniel Balie, (1879) 9 Buch. 45. tantly, it demonstrates the complexity of the lengthy 2. Sigcau v. The Queen, (1895) 12 S.c. 256 at 270-71, afJ'd, [1897] debate among liberal South African legal scholars over A.C. 238 (Privy Council). the appropriate role of judges in an unjust society and 3. 1 Cranch 137 (1803). 4. Brown v. Leyds, N.O., 4 Off. Rep. 26 (1897). whether they should resign. The legal system and the 5. See Minister of the Interior v. Harris, 1952 (4) SA 769 (A.D.); Harris judiciary cannot simply be dismissed as a reflection v. Minister of the Interior, 1952 (2) S.A. 428 (A.D.). of the apartheid state, nor can the decisions surveyed 6. Wacks, Judges and Injustice, 101 S. AFR. L.]. 266, 269, 277 (1984). 7. See L. FULLER, THE MORALITY OF LAW 160-161 (rev. ed. 1969). here be fairly described as "occasional judicial expostu­ 8. See The Financial Times (London), Mar. 17, 1987, at 4. lations in the name of justice" or "faint voices in the 9. Act 74 of 1982. w ild erness."65 l.A1.geT ~~ numb ers of real people are enjoying 10. See Wacks, supra note 6, at 278. 11. An Inclian senior counsel, Mr. Hassan Mall, was appointed as an the benefIts of these "expostulations." acting judge in Natal in February 1987. The impact of "liberal" decision-making in South 12. See R. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE Africa may still be dwarfed by the larger political events. JUDICIAL PROCESS 27-28, 119-23 (1975) . 13 1961 (2) SA 587 (A.D.). It is unrealistic to assume that the judiciary can be an 14. Rex v. Abdurahman, 1950 (3) S.A. 136 (A.D.) (espousing the "separate important agent for the abolition of apartheid itself. but equal" doctrine). DUKE LAW MAGAZINE / 14

The legal system and the judiciary can­ 41. See, e.g. , Radebe v. Minister of Law and Order, 1987 (1) S.A. 587 (WL.D.); Jaffer v. Minister of Law and Order, 1986 (4) S.A. 1027 (C); not simply be dismissed as a reflection Dempsey v. Minister of Law and Order, 1986 (4) S.A. 530 (C); Nkwinti v. Commissioner of Police, 1986 (2) S.A. 421 (E.); Katofa v. Administrator­ of the apartheid state, nor can the deci­ General for South West Africa, 1985 (4) S.A. 211 (S.W.A.), confirmed 1986 (1) S.A. 800 (S.w.A.); Moodly v. Minister of Law and Order, D.c.L.D. un­ sions surveyed here be fairly described reported (see The Weekly Mail, Feb. 13-19, 1987, p. 1); Vale v. Minister of Law and Order, E.P.D. Sept. 5, 1986, unreported; Bishop of Roman Catholic as {{occasional judicial expostulations Churc.h of the Diocese of Port Elizabeth v. Minister of Law and Order, E.C.D. Aug. 1, 1986, unreported (only one applicant released) (for the last in the name ofjustice" or (Jaint voices two cases, see 2 S. AFR. ]. HUM. RIGHTS 381-384 (1986»; Thabata v. Minister of Law and Order, E.C.D. Oct. 29, 1985 (unreported) (see 1 S. in the wilderness." large numbers of AFR. ]. HUM. RIGHTS 300 (1985». 42. See esp. Minister of Law and Order v. Hurley, 1986 (3) S.A. 568 real people are enjoying the benefits (A.D.) (upholding Hurley v. Minister of Law and Order, 1985 (4) S.A. 709 (D.C.L.D.) (where the breakthrough was achieved». See also Akweenda v. of these {{expostulations. JJ Cabinet for the Transitional Government for South West Africa, 1986 (2) S.A. 548 (S.W.A.); Nkwinti v. Commissioner of Police, 1986 (2) S.A. 421 (E.); Steel v. Minister of Law and Order, D.c.L.D. Sept. 20, 1985 unreported (see The Weekly Mail, Sept. 27-0ct. 3, 1985, at 1). For holdings to the same effect in the context of the emergency regulations, see Radebe v. 15 . 1961 (2) S.A. at 602. Minister of Law and Order, 1987 (1) S.A. 586 (W.L.D.); Nqumba v. State 16. 1%4 (2) S.A. 551 (A.D.). PreSident, 1987 (1) S.A. 456 (E.); Jaffer v. Minister of Law and Order, 1986 17. Whittaker v. Roos & Bateman, 1912 App. Div. 92. (4) S.A. 1027 (C); Dempsey v. Minister of Law and Order, 1986 (4) S.A. 18. See Rossouw 1964 (2) S.A. at 558-61. 530, 534 (C.); Metal and Allied Workers Union v. State President of the 19. Mathews, The South African Judiciary and the Security System, 1 Republic of South Africa, 1986 (4) S.A. 358 (D.C.L.D.). S. AFR. J. HUM. R. 199, 202 (1985). 43. See Nkondo v. Minister of Law and Order, 1986 (2) S.A. 756 20. Indeed, there are some painfully obvious parallels between the (A.D.). Nazi and the South African legal systems. See, e.g. , Fernandez, The law, 44. See Nqumba v. State President, 1987 (I) S.A. 456 (E.); Bill v. State Lawyers and the Courts in Nazi Germany, 1 S. AFR. ]. HUM. R. 124 President, 1987 (1) S.A. 265 (W.L.D.); Mathale v. Secretary for Education, (1985). Gazankulu, 1986 (4) SA 427 (T); Buthelezi v. Attorney-General, Natal, 1986 21. For an exception, see Mufson, South African Judges Flexing Their (4) S.A. 377 (D.C.L.D.); Nkwinti v. Commissioner of Police, 1986 (2) S.A. Muscles, 9 (18) NAT'L L.J., Jan. 12 , 1987, at 1, 30. 421 (E .); Momoniat v. Minister of Law and Order, 1986 (2) S.A. 264 (WL.D.). 22.]. DUGARD, HUMAN RIGHTS AND THE SOUTH AFRICAN 45. See, e.g. , Ebrahim v. Minister of Law and Order, TP.D. (unreported) LEGAL ORDER (1978). (see The Weekly Mail, Mar. 20-26, 1987, at 3); Bill v. State PreSident, 1987 23. See Steyn, Regsbank en Regsfakulteit, 30 TYDSKRIF VIR (1) S.A. 265 (WL.D.); Metal and Allied Workers Union v. State President HEEDENDAAGSE ROMEINS-HOLLANDSE REG. 101 (1967). of the Republic of South Africa, 1986 (4) S.A. 358 (D.C.L.D.); Katofa v. 24. State v. van Niekerk, 1970 (3) S.A. 655 (T.) (acquitted, but only Administrator-General for South West Africa, 1985 (4) S.A. 211 (S.w.A.), because of absence of mens rea); State v. van Niekerk, 1972 (3) S.A. 711 confirmed 1986 (1) S.A. 80 (S.W.A.); Nqulunga v. Minister of Law and (A.D.) (conviction upheld). Order, 1983 (2) S.A. 696 (N.). 25. See In re Dube, 1979 (3) S.A. 820 (N.). 46. See Buthelezi v. Attorney-General, Natal, 1986 (4) SA 377 (D.c.L.D.); 26. Sigcaba v. Minister of Police, 1980 (3) S.A. 535, 542 (Transkei Sup. State v. Baleka, 1986 (1) S.A. 361 (T); State v. Ramgobin, 1985 (3) S.A. 587 (N.). Ct.). See also Honey v. Minister of Police, 1980 (3) S.A. 800 (Transkei Sup. 47. See Cheadle, Thompson & Haysom v. Minister of Law and Order, Ct.). 1986 (2) S.A. 279 (W.). 27. See e.g. More v. Minister of Co-operation and Development, 1986 48. See 2 S. AFR.]. HUM. RIGHTS 259 (1986) (where it is reported (I) S.A. 102 (A.D.). that the banning orders imposed on five leading activists were set aside 28. See In re Duma, 1983 (4) S.A. 469 (N.). in the wake of the decision in Nkondo v. Minister of Law and Order, 29. See Black Affairs Administration Board, Western Cape v. Mthiya, 1986 (2) S.A. 756 (A.D.». 1985 (4) S.A. 754 (A.D.); Oos-Randse AdministraSieraad v. Rikhoto, 1983 49. See, e.g., United Democratic Front v. Acting Chief Magistrate, Johannes­ (3) S.A. 595 (A.D.); Komani N.o. v. Bantu Affairs Administration Board, burg, 1987 (1) S.A. 413 (W. L. D.); State v. Mahlangu, 1986 (1) s. A. 135 (T); Peninsula Area, 1980 (4) S.A. 448 (A.D.). See also Mahlaela v. De Beer N.O., Metal and Allied Workers Union v. Castell N.O., 1985 (2) S.A. 286 (D.C.L.D.); 1986 (4) S.A. 782 (T) (attempt by township superintendent to disestablish United Democratic Front (Western Cape Region) v. Theron N.O., 1984 (1) a black township by applying a policy of refusing site and residential S.A. 315 (C.) (rescinded Theron N.o. v. United Democratic Front (Western permits ruled unlawful). Cape Region), 1984 (2) S.A. 532 (C.)). 30. See Government of the Republic of South Africa v. Government 50. See Mbeka v. Nell N.O. , E.P.D. Nov. 14, 1985, unreported (see 2 S. of KwaZulu, 1983 (1) SA 164 (AD). AFR.]. HUM. RIGHTS 128 (1986» . 31. More v. Minister of Co-operation and Development, 1986 (1) S.A. 51. See State v. Ramgobin, 1986 (4) S.A. 117 (N.); State v. Ramgobin, 102 (A.D.). 1986 (1) SA 68 (N.). See generally, 2 S. AFR. J. HUM. R. 120, 261 (1986). 32. See cases cited supra note 29. See also State v. Leepile, 1986 (4) S.A. 187 (W.L.D.) (court refusal to 33. Abolition of Influx Control Act 68 of 1986. permit the state to withhold the identity of one of its witnesses from the 34. See State v. Govender, 1986 (3) S.A. 969 (T). defense); but cf State v. Harber, in re State v. Baleka, 1986 (4) S.A. 214 35. Internal Security Act 74 of 1982. (T); State v. Baleka (2), 1986 (4) S.A. 200 (T.). 36. Declared in terms of §3 of the Public Safety Act 3 of 1953. 52. Cj, e.g., Mokoena v. Minister of Law and Order, 1986 (4) S.A. 42 37. As is illustrated by lord Parker's speech in a case during World 'w.u 1: (WL.D.); State v. Ntshiwa, 1985 (3) S.A. 495 (T.); Ndabeni v. Minister of "Those who are responsible for the national security must be the sole Law and Order, 1984 (3) S.A. 500 (D.C.L.D.). judges of what the national security requires. It would be obviously un­ 53. See e.g. State v. Ratshitanga, 1986 (4) S.A. 949 (Venda Sup. Ct.) (mere desirable that such matters should be made the subject of evidence in a bearing of arms insufficient to constitute 'act of terrorism', unless accom­ court of law or otherwise discussed in public." The Zamora, [1916] 2 panied by an intent to commit a specified offense); State v. Ndlovu, 1986 A.C. 77, at 102 (H.L.). (1) SA 510 (N .) (knowledge of unlawfulness required). 38. Obviously relevant here are Korematsu v. United States, 323 U.S. 54. See generally, 2 S. AFR. ]. HUM. R. 384-85 (1986); 1 S. AFR. 214 (1944), and Liversidge v. Anderson, [1942] A.C. 206 (H.L.). J. HUM. R. 304-07 (1985). 39. See e.g. Council for Civil Service Unions v. Minister for the Civil 55. See id. See also The Weekly Mail, Sept. 27-0ct. 3, 1985, at 4 (report Service, [1985]1 A.C. 374 (H.L.); R v. Secretary of State for Home Affairs, of the Shirish Soni case, in which the security police were ordered to cease ex parte Hosenball, [1977]1 WL.R. 766 (C.A.). their interrogation of the detainee). For subsequent developments, see 40. See Haig v. Agee, 453 U.S. 280 (1981). See also Dennis v. United Morarjee v. Minister of Law and Order, 1986 (3) S.A. 823 (D.C.L.D.) (court States, 183 F.2d 201 (2d Cir. 1950), aff'd, 341 U.S. 494 (1951). The observa­ refused to impose a reasons requirement on the minister but stated that tion concerning the Korematsu and Dennis cases is more fully developed if the detainee was medically unfit to be interrogated his continued deten­ by Dugard. See]. DUGARD, supra note 22, at 362-64. tion would be unlawful). See also Mkhize v. Minister of Law and Order, VOL. 5, NO. 2 I 15

1985 (4) S.A. 147 ( .) (order to cUstrict surgeon to examine detainee and It is unrealistic to assume that the report to court). 56. As in the Billy Nair case, .P.D. (unreported). See The Weekly judiciary can be an important agent Mail, Oct. 11-17, 1985, at 3. 57. See 1 S. AFR. J. HUM. R. 307 (1985); cf SOUTH AFRICAN for the abolition of apartheid itself. INSTITUTE OF RACE RELAT[ONS, RACE RELATIONS SURVEY 1985, 495-496 (1986) . Cf also DIamln.i v. Minister of Law and Order, 1986 (4) The most the judges can do is serve to S.A. 342 (D.CL.D.) (where the government tried to repudiate its settle­ ment); Mda v. Minister of Justice, Police and Prisons, 1986 (3) S.A. 500 reduce the oppression, help to protect (Ciskei Sup. Ct.). 58. See Ex parte Matshini, 1986 (3) S.A. 591 (E .); see 2 S. AFR. J. the agents ofpolitical change, and HUM. R. 262 (1986). 59. See e.g Metal and Allied Workers Union v. State President of the display the virtue of an independent Republic of South Africa, 1986 (4) S.A. 358 (DCL.D.); Nkwinti v. Comrnis­ ioner of Police, 1986 (2) S.A. 421 (E.); Thabata v. Minister of Law and judiciary to South Africa ~ future Order, supra note 41 ; [tsweng v. Minister of Law and Order, T.P.D. Case o. 12 714/86 (unreported) (see 1 Afr. L. Rev. 19 (1987); 2 S. AFR. J. HUM. rulers. R. 382 -383 (1986». 60. See Natal Newspapers (Pty.) (Ltd.) v. State President of the Republic of South Africa, 1986 (4) S.A. 1109 (N .); Argus Printing and Publishing Co Ltd. v. Minister of Law and Order, W.L.D., Jan. 29, 1987 (see 3 S. AFR. J. HUM. R. 131 (1987). Most recently the more extensive restrictions im­ 63. See 2 S. AFR . ]. HUM. R. 377 (1986). posed in response to the Argus decision were struck down by a judge in 64. It has been speculated that the inability to obtain the cooperation Natal . See WashingtOn Post, Apr. 29, 1987, at AI, A24. of all three houses of parliament was the reason for the lifting of the first 61. [n April a full court of the atal Provincial Division struck down state of emergency on Mar. 7, 1986. See 2 S. AFR . ]. HUM. R. 252 (1986). emergency regulations purporting to prohibit expressions of suppon for, 65 . 'w.icks, supra note 6, at 281. or calls for the release of, detainees. See NY. Times, Apr. 25 , 1987, at 3. 66. It was reponed on the CBS Morning ews, May 5, 1987, that the 62 . See United Democratic Front v. The State President, E.CD. July police were ignoring, pending their appeals, the recent decisions of two 30, 1986 (unreported); United Democratic Front v. State President, W.L.D. Natal courtS (cited supra nOtes 60, 61) that had lifted restrictions on July 28, 1986 (unreponed) (see 2 S. AFR. J. HUM. R. 379 (1986» . public protest and press coverage thereof. DUKE LAW MAGAZINE I 16 Advertising and the Ethical Profession Thomas B. Metzlojf*

n the past two years, I have been responsible for organizing the reading materials for Duke's legal ethics course. Unlike most schools which I offer an uppedevel course on the subject, we teach professional responsibility during the first year in a one-week intensive course. Duke is fortunate that Judge Alvin Rubin from the Fifth Circuit Court of Appeals and Judge James Oakes from the Second Cir­ cuit serve as faculty members. Each year before the course begins, we review the materials, and they rou­ tinely suggest that the materials on legal advertising be reduced, if not eliminated. Each year, I have agreed with the suggestion but complied only to an extent. On one level, they are undoubtedly correct. The basic question whether lawyers should be able to advertise is no longer par­ ticularly interesting. The constitutional issue has by now been almost fully explored. The ethical issue lacks depth. Compared to a host of other concerns­ confidentiality, conflict of interest, or the essential appropriateness of the adversarial system-advertising is an also-ran. Why then my urge to continue to include a discussion about legal advertising? In part, I justify my position by noting the significance of the issue within the profession itself. The last fifteen year period has seen great activity in analyzing the ethi­ cal dimensions of the legal profession. During this time, professional ethics has been recognized as a legitimate academic discipline and practitioner con­ cern. Throughout this exciting period of examina­ Indeed, if anything, the legal profession is more con­ tion, the topic that has garnered the most attention cerned with its "professional" image today than at by the legal community itself-whether it should any time in the past decade. Recently, the ABA and have or not-has been the propriety of advertising any number of states have empowered special com­ by lawyers. mittees to opine on how to regain the professional This attention results from the profession's per­ edge. The emotional cachet is real. A large part of ception of its own virtues. The amorphous concep­ the profession believes, and is quite willing to profess tion of professionalism-so often raised and so little its belief, that our tolerance of professional mercan­ discussed-is, as always, a topic of current interest. tilism has been a monumental mistake. Behind much of this renewed concern with pro­ fessionalism is a strong undercurrent that the qUality *Associate Professor of Law, Duke University School of the legal profession has deteriorated largely as a of Law. Professor Metzlof! has taught at Duke since result of the permissive attitude towards advertising 1985. He teaches civil procedure as well as professional fostered by the courts. Advertising has become the responsibility and a course on professional liability stalking horse of the profeSSionalism debate. The This article is derived from a lecture on leading recent report of the Georgia Committee on Profes­ Supreme Court cases given as part of a Duke University sionalism is instructive. Critical of the new emphasis Continuing Education program in 1986. on business development, the report focuses on the VOL. 5, NO.2 117

evils of advertising. "The committee shares the remorse, Behind much of this renewed concern indeed the indignation, of much of the Bar over the shameless commercialism of some advertising by with professionalism is a strong under­ lawyers. It is artless, crude, and, in a word, unpro­ current that the quality of the legal fessional. It is also unsophisticated." To be sure, we have been bemoaning the decline of the attorney as profession has deteriorated largely as professional for a seeming eternity. Yet, the recent a result of the permissive attitude wave of accusations and apologies are at least sincere. If we are to believe the rhetoric, our chosen pro­ towards advertising fostered by the fession has evolved into little more than a cadre of courts. Advertising has become the money-grubbing entrepreneurs. In fact, the critics do not view the process as evolutionary in the least. stalking horse of the professionalism Rather, its origins are directly traced to the Supreme debate. Court's decision in Bates v. State Bar of Arizona (1977) "legalizing" attorney advertising. From that beginning, the powers that be-the local state disci­ confidently predicted, the "most worthy and effec­ plinary authorities-have been unable to stem the tive advertisment possible . . . is the establishment of tide. Like Eve's first encounter with the apple, this well-merited reputation for professional capacity and small beginning has led to dire consequences. It is fidelity to trust." That is essentially where we stood widely perceived that the Supreme Court's required until the Supreme Court's decision in Bates v. State promiscuity relating to advertising has resulted in the Bar of Arizona (1977). legal profession being cast out of its garden paradise Bates is well-known, but its facts deserve brief of profeSSionalism into the world of cheap marketing mention. John Bates and Van O'Steen were attorneys tricks, heightened governmental regulation, malprac­ in Arizona. After passing the state bar in 1972, they tice exposure, and other previously unthinkable worked for a few years with a local legal aid group. potential worries. Many wish that we could some­ They then decided to form their own firm, self­ how confess error and return to the halcyon days. designated as a "legal clinic" Their approach, moti­ At this pOint, the debate over advertising has vated in part by their own values and in part by a become rather staid. Those favoring it, or least will­ perceived opportunity; was to offer legal services at a ing to tolerate it, appeal to the inherent logic of the modest fee. By focusing on routine matters such as Supreme Court's decisions or the benefits of the uncontested divorces, adoptions, simple personal competitive realities of a free market. Its opponents bankruptcies and the like, they hoped to achieve appeal to the subjective virtues of professionalism or some measure of success. Much of the work would the acknowledged tastelessness of particular adver­ be performed by paralegals; secretaries would master tisements. Little new has been added to the discus­ the emerging technology of word processors. sion in quite some time. In fact, however, if one goes Soon after opening shop, they sensed that the flow just a little beneath the surface of the debate, one of business required an improved ability to commu­ fmds a rich deposit of important issues going to the nicate with potential clients. Limited by the State's essence of the profession. disciplinary rules, they quickly concluded that some­ We must first identify more specifically what the thing beyond what was allowed would be needed. In "right" is. The profession's strong anti-advertising clear violation of the regulations, they placed an ad philosophy dates from the early 20th Century, an era in the Arizona Republic, the daily newspaper in Phoenix. dubbed the Progressive period in no small part by The copy was certainly tame by today's standards, those involved. Prior to the promulgation of the noting that their flIm offered "legal services at very 1908 Canons of Professional Ethics, there was no reasonable fees," and then listed the applicable fee for strong history of opposition to advertising. Under the each category of service. There was no misrepresen­ new "professional" regime, lawyers obtained business tation; the fees listed were those being charged. by doing a good job. Their successes combined to Indeed, if a case proved to be more complicated form a professional reputation ultimately resulting in than it appeared at first glance, the firm would not demand for their services. As the Canons themselves even take it. The proper authorities rued disciplinary proceedings and the matter ultimately found its way to the Supreme Court, whose decision is a tour de force rejecting the Indeed) ifanything the legal profession classical arguments of professionalism. The essential is more concerned with its "profes­ concern of the majority in permitting advertising was sional') image today than at any the need to improve access by the public to the legal profession's services. As with many leading Supreme time in the past decade. Court cases, Bates identified a shift in policy. The contours of the "right" were left to be described. DUKE LAW MAGAZINE I 18

To be sure, we have been bemoaning reach interested potential clients with specific legal problems. the decline of the attorney as profes­ The central holding in Zauderer is an important sional for a seeming eternity. Tht, the addition to the constitutional protections afforded attorneys' marketing efforts; indeed, in terms of prac­ recent wave of accusations and apol­ tical implications on the type of marketing it autho­ ogies are at least sincere. rizes, Zauderer is arguably more important than Bates. Given the nature of marketing, this flexibility will be of critical importance. Rather than limiting Bates to information about an attorney's routine services or Since Bates, the Supreme Court has issued a number own personal qualifications, Zauderer broadens the of opinions embellishing and to an extent reinterpreting constitutional protections to include information the limited constitutional right for attorneys to adver­ about whether the consumer has a legal problem in tise. In 1981, the Court was called upon to issue a the fll'St place, a far different informational focus. "We meant what we said" decision in In re R.M] Without the ability to address specific legal problems (1981), involving a rather silly attempt by Missouri to of potential clients through creative marketing, the define the precise words that could be used by an constitutional safeguards established in Bates and R.M.] attorney to describe his or her areas of practice. would have meant little, merely giving attorneys the Many observers would proclaim that as a result of right to conduct ineffective advertising. Bates, as reinforced by R.M.] , there has been a revo­ After Zauderer, I think we are just about ftnished lution in attorneys' opportunities to market their ser­ with the legal adjustments needed to implement Bates. vices in the past decade. Focusing solely on the yellow This is not to say that a few other problems will not pages and late night television programming, this emerge. Indeed, continuing litigation seems inevitable assessment might have some Validity. Certainly, the given the recently enacted Model Rules of Professional legal profession is increasingly aware of the potential Conduct's approach on legal advertising. Moreover, as use of advertising as a marketing tool. Yet, Bates and will be argued below, I believe that the basic approach R.M.] addressed only a limited range of marketing of the Model Rules is descriptive of the attitudinal activities, namely objective statements by attorneys development that has generally occurred within the about their own qualifications and practices. In 1985, profession in response to advertising. the Court was called upon to consider a different State disciplinary authorities only begrudgingly type of marketing effort. accepted Bates' teachings; they were more interested In Zauderer v. Office oj Disciplinary Counsel (1985) , in taking advantage of its potentially limiting language an attorney placed an advertisement in a number of than in opening opportunities for attorneys to adver­ Ohio newspapers offering his legal services to women tise. Canon 2 of the old Model Code of Professional who had suffered injuries possibly stemming from Responsibility contained the advertising and solicita­ the use of a Dalkon Shield intra-uterine device. The tion restrictions under the general axiom that an ad noted that the Dalkon Shield had caused serious attorney had a duty to 'i\ssist the Legal Profession in injuries in other women and that the attorney was Fulfilling its Duty to Make Legal Counsel Available." representing plaintiffs in lawsuits against the manu­ The fact that many of the advertising provisions facturer on a contingency fee basis. The ads also limited attorney communication about services-and contained an illustration of a Dalkon Shield. thereby restricted access-was an irony apparent to The disciplinary authorities illed a complaint charging many. The ABA Model Rules, offtcially adopted in that the ad violated Ohio regulations because it im­ August 1983, were far more sympathetic to attorney properly used an illustration, was not "dignifted," and advertising or at least to its inevitability. Conceptually, contained information beyond that permitted under the Rules restructured the entire approach to regu­ the rules. Following administrative and judicial pro­ lating attorney marketing. ceedings in Ohio upholding the regulations, the case Marketing restrictions are now contained in Part 7 went to the Supreme Court. Writing for the Court in of the Model Rules which is entitled "Information a sharply divided decision, Justice White held that About Legal Services." On the whole, the Model Rules the Dalkon Shield advertisement was constitutionally embrace both the letter and spirit of Bates and R.M.] , protected. The Court noted that the ad was entirely accurate and did not promise success, nor did it claim that the attorney had any special expertise in handling such matters. Therefore, the state's acknowl­ If we are to believe the rhetoric, our edged power to restrict misleading advertising could chosen profession has evolved into not be applied just because the ad was "geared to persons with specific legal problems." Stated differently, little more than a cadre of money­ the Court held that the First Amendment applied to grubbing entrepreneurs. protect creative advertising designed specifically to VOL. 5, NO.2 I 19 as opposed to the AMs earlier, more restrictive efforts It is widely perceived that the Supreme to moclify its prior prohibitions to conform to Bates. As opposed to setting forth a laundry list of permitted Court's required promiscuity relating information, Model Rule 7.1 establishes only a general to advertising has resulted in the legal standard that an attorney "shall not make a false or misleading communication about the lawyer or the profession being cast out of its garden lawyer's services." It defmes three factors to be used paradise ofprofessionalism into the to determine whether a communication is mislead­ ing. Specifically, the communication is misleacling if world of cheap marketing tricks, it: (1) contains a material misrepresentation of law or heightened governmental regulation, fact or omits a fact needed to make the statement not misleading; (2) is likely to create an unjustified expec­ malpractice exposure, and other pre­ tation about the results the attorney can obtain; or (3) viously unthinkable potential worries. compares one attorney's services with another absent factual substantiation. Many wish that we could somehow The Model Rules accept that the inherent purpose confess error, and return to the halcyon of marketing is to make "self-laudatory statements," and that the question whether an advertisement is "dig­ days. nified" is hopelessly subjective. Despite the Model Rules' sensible approach, the "clignity" issue continues to divide the profession and the courts. Like many protection. It is likely that direct mail campaigns will legal concepts, "dignity" is hard to define on any­ continue to spur litigation, especially since these mar­ thing other than an "I know it when I see it" basis. keting efforts are among the most useful an attorney Some courts have, nonetheless, attempted to articu­ can conduct. The ABA itself has recognized the prob­ late a "clignity" restriction. For example, the Iowa able unconstitutionality of this provision and recently Supreme Court in Committee on Professional Ethics circulated a proposed amendment to Rule 7.3. & Conduct of the Iowa State Bar Ass'n v. Humphrey, Rule 7.3 raises another issue relating to marketing (Iowa 1984) recently upheld a state rule prohibiting efforts clirected not to potential clients, but to those the use of dramatic overvoices or music in lawyers' key third parties such as accountants, bankers, and ads based upon a "clignity" concern. The United real estate agents, who frequently are asked to rec­ States Supreme Court vacated the decision and ommend a lawyer to their own clients. The instincts remanded it for further consideration in light of of the "professional" school are deeply offended by Zauderer, but, on remand, the Iowa Supreme Court such "back door" tactics. Some courts have restricted affirmed its prior holding. The Supreme Court, in a these efforts based upon a perceived conflict of interest clivided decision, clismissed the subsequent appeal being promoted between the third party and his or from the Iowa Supreme Court for want of a substantial her client. federal question. It is questionable whether the targeted broker, While the Model Rules as a whole greatly liberalize banker, or accountant will in fact attempt unfairly to the previous regulatory regime, other portions include solicit clients for the attorney or that the solicitation potentially significant restrictions. For example, Model efforts that do occur on the attorney's behalf will Rule 7.3 substantially limits direct contact between result in a conflict of interest. While the concerns attorneys and prospective clients. Specifically, it pro­ about overreaching and conflict of interest are of hibits contact in person, by telephone, by letter, or some significance, there are potential benefits to in­ by other forms of communication clirected to specific creasing the amount of information about attorney recipients while allowing "letters addressed or adver­ services available to those third parties who regularly tising circulars distributed generally to persons not recommend legal services to their own clients. Assum­ known to need legal services of the kind provided ing that the third party cannot receive any compen­ by the lawyer in a particular matter, but who are so sation from the attorney, which is almost uniformly situated that they might in general find such services prohibited, it is doubtful whether the third-party will useful." Beyond the "general circular" exception, the use high pressure tactics to obtain clients for some­ area of prohibited contact is significant. one else. While the restriction against personal contact for Indeed, third parties are likely to perform a useful pecuniary gain rests on firm footing, the Model Rules' and objective function in referring attorneys to their limitation on clirect mailing to targeted inclividuals clients. Their relationship to their own clients, the raises serious constitutional questions and, indeed, crucial factor for denying direct marketing contact has already been questioned in juclicial decisions. For with third parties accorcling to some courts, instead example, numerous state courts have held that direct suggests that they would act in an informed manner mail campaigns to specific individuals known to need to assure that their clients receive competent legal particular legal services are entitled to constitutional assistance. Often, these third parties are in a better DUKE LAW MAGAZINE / 20

The Model Rules accept that the inherent Courts decided numerous cases; bar associations debated the issue seemingly endlessly As it became purpose of marketing is to make «self­ clearer and clearer that there was little power left to limit standard forms of advertising, the organized laudatory statements) N and that the profession capitulated. The tension was resolved only question whether an advertisement is in terms of what the legal community would allow­ ''dignified N is hopelessly subjective. not in terms of what it would prefer or what it wanted. With each new application-as advertising spread to radio, then television, or began to use direct mail position to be aware of the available choices and to techniques-the emotional opposition of many attorneys know something about the competing attorneys' qual­ hardened. We have now reached a rather unpleasant ifications. Rather than seeking limitations on this type equilibrium. The pro-advertising forces believe that of communication, states should perhaps be seeking they have captured most of the territory Remaining ways to capitalize on it. issues-such as imposing disclaimers to accompany In another important respect, the Model Rules also advertisements, limiting marketing efforts to third­ serve to restrict attorney marketing efforts. Model Rule parties, or restricting the claims of specialization-do 7.4 only permits attorneys to state either that they do not seem fundamental, and there is no great push or do not practice in particular fields of law. The rule favoring advertising rights on these issues except by further provides that attorneys may not state that those directly involved in a particular dispute that they specialize except for attorneys practicing patent might emerge. The opponents of advertising, their law, admiralty law, or other areas of designation or resolve to limit the expansion stiffened, seek to accept specialization established by the particular state. By the Zauderer status quo but are willing to go no further. limiting identification of specialization to state-created My reading of the judicial temper is that Zauderer areas of designation, the Model Rules sanction a sig­ may be the last major decision favoring advertising. nificant restriction if the state has not established a The existence of a sizeable dissenting minority on meaningful program of specialization. the Court suggests that there is a growing sense that The limitation on advertising specialties conflicts we have already gone too far and that stopping now with a basic fact of modem legal practice. An increasing is a fair resolution of the debate. number of attorneys specialize to a Significant degree. I suppose stopping where we are and letting the Whether this qualifies them as experts is, of course, profession adjust to the change has some merit; a open to question. To the extent that Model Rule 7.4 judicial time-out once in a while would ordinarily restricts the natural tendency of attorneys to address be appropriate. Yet, in my view, this is not a particu­ their qualifications within self-deSignated areas of larly good place to stop analyzing the issues or dis­ specialization, it is likely to provide fertile ground for cussing the points bubbling directly underneath the litigation. An attorney with relevant expertise has a surface of the advertising issue. Returning to my natural, and arguably legitimate, interest in communi­ original theme for a moment, advertising has never cating that information to potential clients. in and of itself been a major ethical issue. In many In sum, the Model Rules' approach is curiously respects, the debate that has been occurring over the schizophrenic. On the one hand, the Rules finally past decade has really been about issues that tran­ embrace the inevitability; if not the wisdom, of the scend advertising-issues such as the need to allocate Supreme Court's basic pronouncements on the subject. legal services better, the need to move towards a Yet, on those issues where the new advertising rules system that recognizes the desirability of specializa­ have not yet been fully played out, they take a strin­ tion, and the need to lower the overall costs of legal gent approach against attorney advertising. Moreover, services. These ethical issues are fundamental, and as suggested above, the limited vision has occurred in we have been discussing them all too indirectly, but contexts in which there would appear to be poten­ at least we have been conSidering them through the tially major gains to be achieved at least from the advertising context. public's perspective. If we stop now and ethically codify Bates, R.M.] , Given this brief overview of the historical background and Zauderer but nothing more and wash our hands on the advertising issue, let me put the development of it all, we risk stifling development on the more into a ten-year focus from Bates through the present. fundamental issues. If the debate over advertising has Bates took a large part of the established profession shown us anything, it should be that something more by surprise. Its acceptance was never a matter of is needed. For the traditional professional, it is clear belief, rather one of necessity Large portions of the that the changes in advertising rules have not done profession did not see the need for advertiSing, nor very much to improve the delivery of legal services, do they have any use for it today The tension between their cost, or the development of a good informa­ this widespread resistance and the inevitability of the tional system relating to expertise. In this sense, the constitutional arguments favoring advertising played traditionalists are surely right; advertising is a blight out in a number of forums for most of the decade. whose virtues do not begin to outweigh its detriments. VOL. 5, NO.2 / 21

For those who favor advertising, solidifying the status The point can be illustrated by a simple case. quo will ill serve the interests of the consumer who Minnesota had a typical rule prohibiting attorneys has a legitimate need for better information than is from holding themselves out to the public as special­ presently being presented, nor will it insure that compe­ ists until such time as the Minnesota Supreme Court tent attorneys will be able to market their services in adopted a program of specialization. In re Johnson a sensible way. (1983) concerned an attorney who advertised that he My point is simple enough-we are not presented was certified as a civil trial specialist by the National with a choice between restoring professionalism by Board of Trial Advocacy (NBTA). The NBTA, a private returning to the past, any more than we can improve organization, applied a rigorous set of standards before the profession by permitting more advertising. The certifying an attorney as a trial specialist. As of 1983, system is deficient in ways which advertising at best the NBTA had certified only 541 lawyers. only tangentially addresses. The continued discussion The Minnesota Board of Professional Responsibility about advertising using the same old arguments is issued a charge of unprofessional conduct against Mr. now obscuring the more legitimate and important Johnson. On appeal following an administrative pro­ issues. Yet, these issues are readily accessible through ceeding upholding the provision, the Supreme Court the advertising issue; the debate can profitably begin of Minnesota held that the rule was unconstitutional there and hopefully develop. as applied to the ad in question. The information Perhaps the point can best be explained by dis­ seemed to be reliable, and Minnesota had, in a sense, cussing briefly the specialization issue. To be sure, defaulted by not creating a specialization program. there is an advertising question here-should we The court acknowledged, however, that there would continue to follow the Model Rule limitations? But be significant problems with an attorney's self­ certainly the more important approach is not to ask designated claim of specialization or expertise if what marketing rule we should have, but instead to the state had created a specialization program. focus on what is the collective profession doing on In re Johnson raises more questions than it answers. the merits with respect to specialization. The enor­ Why is it assumed that the specialization function is mity of the trend towards the speCialization of legal one that in the first instance belongs to the State? services surely transcends the importance of the rec­ Why should there be any question that a private ognition of the constitutional right to advertise about organization could develop meaningful objective or it. Frequently in history, however, we deal first with subjective criteria for determining expertise? What is the practical effect only then to revisit the cause. most surprising in the entire debate is that the obvious comparisons to the medical profession in the area of specialization are not drawn. Rather than tolerate the state by state development of fields of specialization, In many respects) the debate that has the medical profession has instead relied to a great been occurring over the past decade extent upon private certification boards. While these boards have created their own forms of mischief, has really been about issues that tran­ their basic functioning as developers of acknowl­ scend advertising-issues such as the edged and accepted definitions of relevant compe­ tence has proven beneficial. I cannot help but feel need to allocate legal services better; that the legal profession would be better served by the need to move towards a system some sort of analogous development. For present purposes, however, it is clear that the specialization that recognizes the desirability of issue should not be resolved as a compromise between specialization) and the need to lower the pro- and anti-advertising forces, both of whom are fighting different, as well as the wrong, battles. the overall costs of legal services. Through the debate we have gotten some glimpses of the major currents of professional change, although these issues have been obscured at times in the adver­ While some states have enacted specialization pro­ tising context. After ten years of arguing, we should grams, many have not done so, thereby significantly take stock of where we have been. If we understand restricting efforts by attorneys to advertise areas of the advertiSing debate in its proper historical context, specialization. In some states that have enacted a pro­ it is time to move beyond it. Instead of dealing at the gram, the areas of speCialization are limited, and the fringes, we should address head-on the issues of special­ administration of the programs has proven to be diffi­ ization, competence, and access to legal services, leaving cult. What is actually restricting attorneys is not the advertising alone. It is not so much that we have advertising rule per se, but the inability of the profession been wasting time-although there has certainly been at large-from the law schools through the state bars-to some of that-but that instead we can now use the lead the way on developing a sensible approach to advertising debate as a springboard to address more specialization. important issues. DUKE LAW MAGAZINE / 22 The Tax Reform Act of 1986: The Impact on Support of Public Goods and Services Richard Schmalbeck *

here are a number of good things to be said That may seem surprising since the Act is alleged to about the Tax Reform Act of 1986 ("TRA '86" be revenue-neutral. One of my contentions is that, or the 'Act"), though not many will be found even if you look only at the federal budget, the Act is T here. To mention a few: the Act does ac­ not likely to prove to be revenue neutral. But a sec­ complish important technical reforms in many areas; ond, more important contention is that it would be a it will remove many of the so-called "working poor" mistake to look only at the federal budget in evaluating from the income tax rolls; it will, overall, improve the revenue available for public and quasi-public pur­ the efficiency of our tax system. l poses. The old Code provided a lot of indirect flnanc­ So much for balance. In the present paper, I want ing for a number of public or quasi-public activities to discuss something I regard as a negative aspect of that the new Code will simply not support at the same the bill-one which I believe has gone largely unno­ level. When these indirect effects are considered, it is ticed. That is, the Act will produce substantially less clear that the funds in the public and quasi-public total revenue for public goods and services, and for sectors in total will be signillcantly contracted, and what might be called quasi-public goods and services, presumably the scope of activities within those sec­ than the pre-TRA '86 Code would have produced. tors will have to be contracted as well.

Revenue Neutrality: The Federal Budget Is the Act really revenue neutral even in the narrow sense of that concept, that is, will it produce the same tax revenues as the old Code would have? When it was enacted, Congress called the Act virtually revenue neutral. Congress' revenue estimates overall for the new act were that it would, over the flve-year period from flscal year 1987 to flscal year 1991 inclusive, collect only $286 million less than the old law. 2 This may sound like a signiflcant sum, but it would be only a microscopic portion of the projected budget expenditures over that period of more than flve trillion dollars. 3 But Congress has not been very good at estimating revenue effects. The primary problem is that it has tended to underestimate the behavioral response of taxpayers and other rational actors to changes in the

* Professor of l£lw, Duke University. Professor Schmal­ beck began teaching at Duke in 1980. His focus is on the fields of taxation and law and economics. This paper is based on remarks presented at a panel discussion entitled "Revolution in Our Tax l£lw," held at the University of Michigan l£lw School in November; 1986. Professor Douglas A. Kahn of the Michigan faculty and Dennis E. Ross, the Treasury Department ~ Tax Legislative Counsel, also partici­ pated in the panel discussion. VOL. 5, NO.2 123 tax laws. For example, suppose one wishes to estimate But Congress has not been very good the revenue effect of repealing the deductibility of state and local sales taxes. One simple-minded way to at estimating revenue effects. The do that would be to take Internal Revenue Service data primary problem is that they have on the dollars of such taxes that had been deducted in the most recent year for which that data would be tended to underestimate the secondary available and multiply that times the weighted aver­ effects ofa change in tax la~ by which age of the marginal rates of the taxpayers who claim those deductions. That would yield the historical I mean the behavioral response of cost to the Treasury in that year of having that deduc­ taxpayers and other rational actors tion in the Code. One would then adjust that cost upward for inflation over the intervening couple of to changes in their economic situations. years, and that would produce an estimate of what could be saved next year if that deduction were taken Of course, both of my degrees are from the Uni­ out of the Code. My understanding is that Congress, verSity of Chicago, and Chicago School analysts are until fairly recently, developed revenue estimates in often faulted for assuming that people-even govern­ substantially that way; that is, it assumed no behavioral ment officials-respond rationally, quickly, and thor­ change would result from the change in the tax laws. oughly to changes in economic incentives. And it The problem with that approach in this particular must be acknowledged that there are some institu­ case, of course, is that repealing a sales tax deduction tional rigidities that will prevent wholesale abandon­ alone, without repealing deductions for state income ment of sales taxes. But it should be kept in mind and local property taxes, provides state legislatures that the Tax Reform Act of 1986 changes a great with a fairly clear incentive to shift their revenue em­ number of things affecting state revenues. Most state phasis from sales taxes to income or property taxes. legislatures will be looking at their tax structures be­ Congress now claims to take these behavioral cause they have to. They are going to fmd that changes responses into account in developing a revenue in the federal defmition of the taxable income base estimate; however, Congress won't explain exactly have implications for the state income tax. Some States how it goes about doing that, and it does not pro­ will enjoy a substantial windfall; others will find that vide any backup detail on the precise calculations their revenues are actually contracted because of the that have gone into the revenue estimates.4 I have overall lowering of the federal tax rates. s So States reason to think that Congress does not account very will be looking at their revenue needs and the cur­ generously for these behavioral responses, but it is rent productivity of their major taxes. And I would extremely difficult to verify that belief in view of the think that in the process of that analysis, a major issue sparse published information regarding the method like federal tax deductibility will be on their minds. It by which Congress develops revenue estimates. Occa­ won't be the only thing that determines the new struc­ sionally, however, it is possible to find a revenue esti­ ture of the state revenue-generating devices, but it mate in an area sufficiently simple that some inferences will certainly be one factor that influences that struc­ can be drawn about the degree to which Congress ture. In concluding on this pOint, I would note that a has incorporated a behavioral response. In fact, that shift from sales taxes to state income taxes seems po­ can be done with respect to the repeal of the state litically salable: lower-income constituents will approve sales tax deduction. Congress did, of course, repeal of the greater progressivity of income taxes, while deductibility of state sales taxes in TRA '86, but left higher-income groups will appreciate the deductibility the property tax and the state income tax deductions of state income taxes. in place. How much of a behavioral effect has Congress What if I am wrong about this? To the extent that taken into account? To what degree has Congress an­ rigidities in state tax structures prevent legislatures from ticipated that States may be inclined to change their shifting revenue emphasis from sales to income or revenue mix in the direction of greater reliance on property taxes, then Congress' revenue estimates will income and property taxes? Surprisingly, Congress be more accurate than I credit them with being. But actually projects that revenue savings from repeal of Congress in that case faces another difficulty: it must sales tax deductibility will increase slightly over the then respond to a charge that it has treated the vari­ five-year period to about $4.91 billion by fiscal year ous States rather inequably. Why should, for example, 1991.5 the citizens of Washington (which has a substantial This projection seems quite unlikely to me. There sales tax but no income tax) lose almost all of their has been a significant move away from sales tax fman­ state tax deductions, while the citizens of Oregon cing anyway in the last thirty years, from 58.3 per­ (which has no sales tax but a substantial income tax) cent of state revenue to 48.7 percent of state revenue lose none of their deductions?9 Congress is thus in a between 1960 and 1984.6 With the additional incen­ dilemma to explain the impact of this change: either tive given by the Tax Act, it would seem that that it has imposed a change which does not operate equi­ process would surely accelerate. 7 tably with respect to citizens of all States or, to the DUKE LAW MAGAZINE / 24

Of course, both of my degrees are from This taxpayer-response effect is likely to be worse under the TRA '86 than under most prior acts, it the University of Chicagq and Chicago would seem, simply because this Act is so big, and School analysts are often faulted for affects so many different aspects of people's lives, that it will force nearly every taxpayer to evaluate his assuming that people-even govern­ situation and to make changes accordingly. An act ment officials-respond rationall~ that made more modest changes might not occasion the kind of across-the-board review that this Act will quickl~ and thoroughly to changes produce. in economic incentives. Finally, the political atmosphere from which this bill emerged was one in which Congress went very quickly from a position of not really wanting a tax extent that States are impelled to move away from re­ bill very much to wanting this particular tax bill a liance on sales taxes, the revenue gain Congress has great deal, but only if it would be revenue neutral. projected from the repeal of state sales tax deducti­ Individual Congressmen frequently expressed mixed bility will be largely vitiated. feelings about the bill, but it was quite clear politically As I noted above, it is very difficult systematically that the Republicans wanted to enact tax legislation to examine the revenue estimates that Congress pub­ so that they could campaign in the 1986 election as lishes since it offers no explanation of how it comes having achieved fundamental tax reform during the up with the particular numbers. But there are some Reagan administration, while the Democrats did not systematic biases in favor of over-estimation of rev­ want to go into the election charged with having enues that seem worth noting. The first has to do blocked tax reform. Once a bill emerged that was with the basic nature of the tax-avoidance dynamic, barely tolerable to a majority of Congressmen and which has become a familiar game in 1980's, largely that carried the label, "Tax Reform Act," it became because of the frequency and volume of tax legisla­ nearly irresistible. The bill underwent a number of tion. The game can have any number of iterations, last-minute changes in an effort to make it revenue but the two basic moves are always the same: Congress neutral, and the pressures on the people who are enacts tax reform, plugging many loopholes; the tax­ in charge of making the revenue estimates were sub­ advice industry (which attracts a shamefully large stantial. 14 The staff of the Joint Committee on Taxation, number of the sort of minds that, in the Soviet Union, which is charged with that function, is scrupulous would belong to grandmasters of chess) pores over and professional; even so, there is inevitably some the legislation to fmd the leakiest plugs or other points tendency in the face of genuine uncertainty to prefer in the revenue dike that are now ripe for the devel­ optimism to pessimism in the case of a bill that Con­ opment of new loopholes. A legislative session or gress clearly wants to enact, and whose enactment two later, the two steps are repeated. And so on. To depends on a determination that it was revenue­ the extent that Congress is able to anticipate the tax­ neutral. advice industry's response to new legislation, it will My conclusion is that the rate cuts really will cut try to skip the intermediate move; that is, it will try revenue, but that the base-broadening measures may in the fmal version of the bill to plug any new loop­ very well not produce as large an offsetting incre­ holes opened by the early drafts of the bill. To the ment to revenue as Congress thinks they will. IS This, extent that Congress carmot anticipate the ingenuity of course, will worsen the deficit and make it even of the tax-advice industry, it is presumably unable to harder to maintain, much less augment, government reflect the effects of that ingenuity in its revenue esti­ programs. mates.10 Those effects are not random, of course; they systematically favor taxpayers at the expense of the Revenue Neutrality Beyond the Budget Treasury. Examples of this effect in the case of the Important though all of that is, I think the indirect TRA '86 abound. Did Congress anticipate how nimbly effects of the Tax Reform Act of 1986 will be even more the banking industry would repackage the formerly significant. High rates combined with generous deduc­ cumbersome second mortgage into the new, no-closing­ tion rules have served over the past several years to cost home equity line of credit, which for many tax­ charmel funds privately in directions that Congress payers will permit them to continue to deduct personal has wanted funds to flow. A number of tax commen­ interest payments?l1 Did Congress anticipate how tators, dating back at least to the late Stanley Surrey, quickly entrepreneurs would bring to market invest­ Harvard law professor and Assistant Secretary of the ment options designed to generate "passive activity" Treasury from 1961-69, have criticized this pattern, income to absorb taxpayers' existing passive activity largely because of the lack of control and scrutiny of losses, which the Act tried to make non-deductible?12 funds that are charmeled to quasi-public purposes in I can't prove it, but I don't think Congress fully antic­ that way.16 I don't mean here to defend or condemn ipated these responses; if it had, it probably would the use of the Internal Revenue Code to charmel have written the Act differently in the first place. 13 money for public purposes. I only note that it has VOL. 5, NO.2 /25

been a feature of our Code in recent years to have Finall~ the political atmosphere from high marginal rates, but also to have a number of ways of avoiding the impact of those marginal rates which this bill emerged was one in for taxpayers who are willing and able to do particu­ which Congress went very quickly lar things approved by Congress. But now the rules have been changed. We have much lower marginal from a position of not really wanting tax rates and fewer ways of avoiding the impact of a tax bill very much to wanting this those rates. One effect of that change will surely be that substantially less money will be channeled particular tax bill a great deal. toward ends that Congress has previously endorsed. Let me illustrate this by an example: Under the scribed will face a very different choice-a choice pre-TRA '86 law, someone with a taxable income of between a rental housing investment that generates $150,000 with, say, $100,000 of cash to invest, might neither cash returns nor tax deductiOns, and an in­ well have invested that money in an apartment build­ vestment in corporate bonds that generates substantial ing that produced no net cash income, or even had a cash returns. If such an investor is rational, he would bit of a loss in cash terms. He might have found this then choose the bonds. This will increase his taxable action reasonable because the depreciation deductions income, but the low postTRA rates largely offset this. and other tax benefits generated by his investment in Thus, his 1988 tax situation will be as follows: that apartment building might have reduced his tax­ able income by, let us say, $30,000. The individual Cash Income $162,000 would have saved about $15,000 in tax. His situation Taxable Income 162,000 Tax 45,000 (1988 Joint Rates) would then have been as follows: '3 After Tax Income 117,000 Cash Income $150,000 From one viewpoint this seems to be an attractive, Taxable Income 120,000 (cash income minus almost magical, policy change-it looks as though apartment deductions) Tax 40,500 (1986 Joint Rates) both the government and the taxpayer are better off. The taxpayer has $7,500 more after-tax income than After Tax Income 109,500 (cash income minus taxes)'8 he had in 1986, and the government has collected $4,500 more tax than it collected in 1986. If you ask Alternatively, this investor might have bought $100,000 the Reagan Administration to explain this, its explana­ of corporate bonds paying, let us assume, $12,000 of tion might suggest that efficiency gains were respon­ interest per year. This would have been less advan­ sible. That is, the administration might suggest that tageous, however, since the adverse tax effect of fore­ the tax-sheltering effect that I described was a drain going his tax-sheltered apartment investment would on the economy, and that clearing out that under­ have more than offset the additional income he would brush from the Code really could make everybody, have gotten from the bonds: including the government, better off than they were before. Cash Income $162,000 Unfortunately, that is an incomplete view because Taxable Income 162,000 Tax 61,000 (1986 Joint Rates) it has left out one of the major parties to this trans­ action. More specifically, under the 1986 system, this After Tax Income 101,000 taxpayer paid an impliCit tax of $12,000, in the form So this taxpayer, being rational, would presumably of the interest income that he could have earned on have chosen the apartment investment instead of the his $100,000 of investable capital but chose not to bonds, and would have enjoyed a 109,500 after-tax earn because he invested in the tax shelter instead. income. Note however, that this total is $52,500 less Some of that implicit tax was captured by land­ than the maximum pre-tax income that this taxpayer owners, construction workers, and other groups that could have generated in 1986. This taxpayer can thus Congress mayor may not be particularly interested be said to have been burdened to that extent by the in subsidizing.'9 However, a substantial part of that im­ impOSition of the 1986 tax structure as applied to one plicit tax was, in fact, surely paid out as a rent subsidy in his economic circumstances. This $52,500 burden to this hypothetical taxpayer's tenants. The taxpayer can be broken down into $40,500 of explicit taxes didn't set out to subsidize his tenants, but it was a and $12,000 of impliCit taxes-the bond income that natural effect of the market transaction in which he he could have enjoyed, but elected not to because of engaged. The tax benefits of investing in the apart­ his tax situation. ment building were so generous that it enabled the One of the TRA '86 reforms, however, is intended taxpayer to make those apartments available at rents to preclude taxpayers such as this one from deducting that did not cover the full economic costs of provid­ losses on rental real estate investments against other ing the apartments. In the case of rental housing, the types of income. When those provisions are fully ef­ rent subsidy was produced under the old system by fective, a hypothetical taxpayer such as the one de- the joint effects of high rates (about 50% for most DUKE LAW MAGAZINE / 26

My conclusion is that the rate cuts of the individual and the government are compen­ sated for elsewhere in the bill. Revenue neutrality really will cut revenue, but that the means that the government comes out even, and the base-broadening measures may very modest overall individual rate cuts mean that this in­ dividual is likely to pay slightly less tax in 1988 than well not produce as much offsetting in 1986. The loss to the university, however, is a true increments to revenue as Congress loss-nothing elsewhere in the system compensates thinks they will. This of course, will for it. worsen the deficit and make it even Distributional Consequences There are really two separate observations that harder to maintain, much less augment, follow from the foregoing examples. The first point is government programs. a distributional one. In 1986, the wealthy taxpayers in these examples not only paid substantial direct federal income taxes but some sizable implicit taxes (or, if investors) and relatively generous deduction rules. one prefers, sizable tax-avoidance expenses) as well. lDwering the rates at the same time that the deduc­ The $12,000 of interest foregone in the first example tion rules are tightened obviously produces profound and the extra $2,500 of charitable contributions in changes in the economics of the landlord-tenant the second represent costs incurred in a high-tax sys­ relationship. tem that would not be incurred in a low-tax or no­ Even pure rate reductions without significant tax system. From the individual taxpayer's viewpoint, tightening of deduction rules can produce important the substantial rate cuts reduce the effectiveness of, changes in private incentives, however. For example, but also the need for, much of this tax-avoidance be­ note the effect of the rate changes on the incentives havior. It can be predicted with confidence that tax­ to make charitable contributions. Suppose that in 1986 payers will engage in less of it. While this is in many a wealthy individual made a $10,000 cash contribu­ respects laudable, it should be remembered that high­ tion to his alma mater. Because he would have been bracket taxpayers have always borne the bulk of these in the fifty percent marginal rate bracket, the contri­ implicit taxes, since this phenomenon is driven by bution actually would have cost him only $5,000. the high marginal rates to which only they were ex­ The same contribution in 1988 will cost a wealthy posed. They will, therefore, receive the largest part of taxpayer $7,200, that is, $10,000-(.28 x 10,000). The the benefit of the reduction in impliCit taxes. This is price of conferring a $10,000 benefit on the school precisely the case for the hypothetical investor in my will have substantially increased. Economists generally earlier example. Under the 1986 Act, he will pay some­ believe that individuals respond to increased prices what more direct tax, but the much larger reduction of conferring benefits on exempt organizations in the in implicit taxes leaves him considerably better off same way they respond to other price increases: they in after-tax terms. Because Congress ignored impliCit consume less of the good whose price has increased. taxes in the arithmetic of producing a modest tax cut One well-respected economist who has broken out that was allegedly equally proportioned by income estimates for particular types of charitable enterprises group, my contention is that the tax cut is in fact by projects a 24-30 percent decline in individual con­ no means balanced, but rather is tilted in favor of the tributions to colleges and universities.20 Suppose that high-bracket taxpayer. the result is in that range and that the hypothetical, There is more than a little irony in this. Liberal $1O,000Iyear donor contributes 25 percent less in congressmen and commentators could hardly argue 1988 than he did in 1986, or $7,500. He will still be very persuasively that the cut in implicit taxes should able to deduct that contribution in full, and doing so have been taken into account, since they have never • will reduce the net cost of his gift by (.28 x 7,500) or really admitted that implicit taxes of the sort I've de­ $2,100. Thus, the net [mancial detriment to the alum­ scribed exist. One of the liberal credos has been that I nus of his 1988 gift would be $7500-2100, or $5400. our tax system was not significantly progressive. In I The change from 1986 to 1988 is that the gift has cost fact, the pre-TRA income tax was significantly pro­ f the donor $400 more, after accounting for his hypo­ gressive, but it was so in large part because of the thetical response to the price effect of the tax rate sizable implicit taxes paid by high bracket taxpayers. change. On the other hand, the government is much There is, of course, one possible countervailing better off: its charitable gift subsidy has declined from effect that should be mentioned, though it is unclear $5,000 in 1986 to only $2,100 in 1988-an apparent exactly how it should be incorporated into the distri­ revenue gain of $2,900. Again, however, there is a butional analysis: Congress anticipates that the Act third party here: the university to which the contri­ will raise about $120 billion more from corporations butions are made. In 1986, it received a $10,000 con­ over the next five years than the old Code. 21 To the tribution; in 1988, under these facts, it will receive extent that these additional taxes are borne by holders only $7,500. Of course, the tentative gains and losses of capital-presumably high-bracket taxpayerS-it VOL. 5, NO.2 127

could vitiate the effect of the cut in implicit taxes. But the ongoing debate over tax expen­ That this is a distinct possibility cannot be convinc­ ingly denied. However, there are a number of rea­ ditures has been whether it is preferable sons to be uneasy about whether the extra corporate to fund public and quasi-public activ­ taxes will entirely offset the reduced implicit taxes on individuals. Primary among these reasons, of course, ities directl~ through appropriations) is the general conceptual uncertainty regarding distri­ or indirectl~ by failing to collect taxes bution of the burden of corporate income taxes. Sig­ nificant parts of the incremental TRA '86 corporate otherwise payable. What the TRA '86 tax burdens may be borne by the employees and does is to cut substantially the indirect customers of corporations and by foreign holders of capital rather than by purely domestic holders of financing ofpublic and quasi-public capital. It should also be noted that some of the major activities) without undertaking any revenue items constituting the increase in corporate tax collections are not permanent. An example is the analysis of whether and to what recapture of the excess bad debt reserves held by banks extent those activities are deserving over the three-year period from 1987 to 1989.22 This may generate some one-time windfall losses for holders of direct appropriations. of equity interests in commercial banks, but it will not increase the tax burden on capital investment once economic equilibrium, post-TRA '86, is restored. mating how much these activities must contract is And, of course, one important feature of that post­ very difficult, but some indirect data on this question TRA eqUilibrium will be a corporate tax that has a is provided by the Office of Management and Budget maximum rate of only 34 %, more than a quarter less in the form of its analysis of tax expenditures.24 The than the pre-TRA rate of 46%. President's Budget for the government's 1988 fiscal Finally, it should be remembered that in assessing year (October 1, 1987 through September 30, 1988) the impact of the $120 billion corporate tax increase provides estimates for the "outlay equivalents" of the over the next five years, one is only looking at the Code features that permit taxpayers to avoid taxes explicit taxes paid by corporations. An implicit­ otherwise owed if they engage in particular activities, explicit tax dynamic applies to corporate taxpayers as such as making charitable contributions, investing well as individuals. f.... hypothetical corporation may in solar energy devices, etc. An analysis of these so­ have bought, in 1985, a $10,000 machine, and taken called "tax expenditures" is prepared each year, show­ a $1,000 investment tax credit. The credit reduced ing estimates of the level of such expenditures, by actual taxes by $1,000, but if the net benefit of the category, in the recently completed fiscal year, and machine to the corporation was only, say, $9,200, projections for those levels in the current and next then the company could be said to have paid $800 succeeding fiscal years. in implicit taxes, or tax-avoidance expenses.2J Con­ These estimates and projections do not perfectly versely, TRA '86's repeal of the investment credit will illustrate the contentions in this paper, but they are surely increase tax collections from corporations, but of interest. One of the problems with the data is that the amount of the increase in tax may overstate sub­ there is no consensus on what constitutes a tax stantially the net after-tax detriment to corporate expenditure-each tax policy commentator would taxpayers. have his own list of appropriate items, based in large Putting all these things together is difficult; there part on that commentator's view of what should be are too many opposing vectors of uncertain magnitude in the tax base in the first instance. Furthermore, the to be confident about the net outcome. At this pOint, numbers may overstate the TRA '86 impact on funds it seems to me that all that can be said about the dis­ available for public or quasi-public purposes since tributional effects of TRA '86 is that the substantial some of the tax expenditures represent items that cuts in implicit taxes will disproportionately benefit nearly everyone would concede to be loopholes, high-income taxpayers, and that this effect may be which buy little if any such goods and services.25 partly offset by increased burdens on income from On the other hand, the numbers presently available capital. understate the impact of the fully effective TRA '86 since they only extend through the 1988 fiscal year, Social Effects of Reduced Implicit Taxes during which many of the TRA '86 provisiOns will The second point worth noting about the sub­ be only partly phased-in. stantial reduction in impliCit taxes is that, whether or With these limitations in mind, consider the not the shadow revenues those taxes generated were following reductions in tax expenditures: used efficiently, they were buying billions of dollars -OMB predicts that the outlay equivalent cost of public and quasi-public goods and services that of the charitable contribution deduction will decline will not be bought under the post-TRA Code. Esti- from $16.6 billion in fiscal year 1986 to only $11 .6 DUKE LAW MAGAZINE I 28

billion in fiscal year 1988. 26 Under the analysis described that Congress thought healthy for the republic. TRA in detail in the "Distributional Consequences" section '86's message to those taxpayers is that such behavior above, it seems likely that much of this reduction will is no longer required, that they can keep the bulk of be at the expense of charitable entities themselves, their substantial incomes even if they spend them on and not at the expense of contributors to those entities. yachts and BMWs rather than on rent subsidies and -OMB predicts that the outlay equivalent of allowing charitable contributions. This may be Ronald Reagan's deduction of state and local taxes will decline from vision of a better tomorrow, but is it truly a vision $32.6 billion in fiscal year 1986 to about $22.0 billion shared by the two-thirds of the House, and three­ in fiscal year 1988.27 (About half of this difference is quarters of the Senate that voted for this Act? attributable to the repeal of the state and local sales taxes, the effect of which may be overestimated.) The 28% maximum tax rate, and the reduction in the num­ 1. On the other hand, it is likely to do little to achieve the other two goals of the President's 1985 tax reform initiative: promoting simplicity ber of taxpayers who will find it advantageous to itemize and fairness. One should not judge Congress too harshly for failing to do under the new Code, will lessen the part of state and more, however, since efficiency, fairness, and simplicity are in some local tax burden that is shared by the Treasury. State measure competing goals rather than complementary ones. 2. H.R. Rep. No. 841, 99th Cong., 2d Sess. 11-884 (1986). and local taxes will be about ten billion dollars a year 3. "Current services" outlay estimates (representing expenditure levels more painful than they were before; an indirect fed­ necessary to maintain current government programs without amendment) eral revenue-sharing device has been pruned dramatically. for fIScal years 1987-1991 (the same period for which the Act's revenue impact was estimated) were provided in the President's Fiscal Year 1988 -OMB predicts that the outlay equivalent of allowing budget. They totaled $5 .6 trillion for those years. Special Analyses, Budget deduction of mortgage interest payments on personal of the United States Government, Fiscal Year 1988, at A-5. residences will decline from $30.7 billion in fiscal 4. An interesting description of the Congressional revenue-estimating 28 process is provided in a two-part series in a recent volume of Tax Notes. year 1986 to $19.9 billion in fiscal year 1988. The See 33 TAX NOTES at 698 and 788, November 24, 1986 and December Treasury's indirect contributions to Americans' mort­ 1,1986. gage payments will thus decline about eleven billion 5. The revenue savings projections, by fiscal year, are as follows: FY 87: S744 million; FY 88: S4.876 billion; FY 89: 54.442 billion; FY 90: dollars per year. $4.557 billion; FY 91: S4.908 billion. H.R. Rep. No. 841, 99th Cong., 2d The list goes on and on, running to more than Sess., 11-866. The low FY 87 estimate reflects the fact that the provision one hundred separate items altogether. In total, OMB will be effective only part of the year and will be reflected primarily in differentials in refund checks, which are paid out the year after the tax expects outlay equivalents of tax expenditure items year in which a change in law becomes effective. The relatively high to decline from $473.5 billion in fiscal year 1986 to estimate for FY 88 presumably reflects the fact that the top 1987 marginal $328.1 billion in fiscal year 1988, a decline of more rate will be 38.5% , so that the revenue savings from not allowing a par­ ticular deduction in the Code will be higher than when the full TRA '86 than thirty percent, with more cuts to come as the rate cuts are effective. (And, again, the legal rate for 1987 primarily affects Act's provisions become fully effective. refunds paid in the spring of 1988). The steady increases of about five Recall that the point here is not that all of these percent from FY 89 to FY 90, and from FY 90 to FY 91, presumably reflect an inflation assumption of about five percent per annum. tax expenditures should have been continued indefinitely 6. 1987 Statistical Abstract of the United States, Thble 432. at their 1986 levels. The reduction is in many respects 7. I am fairly confident that States will collect a lower proportion of praiseworthy. But the ongoing debate over tax expen­ their total revenue from sales taxes in the future than they do today. This could take the form of lowering sales taxes while increasing income taxes ditures has been whether it is preferable to fund pub­ (producing roughly constant revenue flows) or through leaving sales taxes lic and quasi-public activities directly, through appro­ at current levels, while income taxes are increased (producing increasing priations, or indirectly, by failing to collect taxes revenue flows) . In the latter scenario, Congress' revenue gain estimates 29 for repealing deductibility of sales taxes could be approximately correct. otherwise payable. What the TRA '86 does is to cut Congress will in that event, however, have lost revenue in the form of substantially the indirect financing of public and quasi­ the additional deductions generated by increased income taxes, a revenue public activities, without undertaking any analysis of loss that does not appear to have been accounted for in its assessment of revenue gains and losses. In either case, revenues under the new tax law whether and to what extent those activities are de­ will have been overestimated. serving of direct appropriations. Furthermore, because 8. For example, the Nebraska state individual income tax is simply the Act, at best, does nothing to lessen the explicit 18% of federal tax liability. NEB. REV. STAT. § 77-2715. Since the TRA '86 embodies a modest reduction in individual tax collections, Nebraska's budget deficit, and (if I am correct) is likely to make collections will, absent legislative change, similarly decline. the deficit worse, there isn't room in the budget for 9. A cynic would quickly fmd an explanation of this phenomenon: any new direct expenditure programs to replace those Oregon's Senator Robert Packwood was chairman of the Senate Finance Committee; the Washington delegation in the 99th Congress had repre­ for which Congress has reduced its indirect support. sentatives on neither the Senate Finance Committee nor the House \XIays and Means Committee (the tax-writing committees of the two houses of Conclusion Congress.) 10. Congress does have one other tool, which it has used increasingly Where does all this leave us? I believe it leaves us in recent tax legislation: it can empower the Treasury to dose loopholes, with considerably shrunken federal support of public through regulations. See foomote 12 , infra, for an example. and quasi-public goods and services, a de-funding 11. Section 511 of the Act repeals deductibility for most non-business interest expenses. Subject to some conditions and limitations, however, that has been accompanied by an equally sizable re­ interest on mortgage loans secured by a personal residence will continue duction in implicit taxes that is malapportioned by to be deductible. income group. While the high pre-TRA rates did not 12. Section 501 of the Act limits deductibility of losses from so-called "passive activities." However, any such losses can be taken against income collect a great deal of tax, they did encourage upper­ from passive activities in the same year. The trick, then, is for taxpayers middle and upper-bracket taxpayers to behave in ways to convert investment activity income (which may not be netted against VOL. 5, NO.2 I 29

passive activity losses) into passive activity income. This is an area that that taxable income equals cash income minus any deductions explicitly Congress has specifically empowered the Treasury to deal with by regu­ noted in the hypothetical. This obviously ignores exemptions and other lations, suggesting in the conference report that: "this authority be exer­ deductions that this taxpayer would be able to take, but doing so does cised to protect the underlying purpose of the passive loss provision, i.e., not impinge on the analysis in any Significant way. preventing the sheltering of positive income sources through the use of 18. Note that the apartment deductions, being by assumption pure tax losses derived from passive business activities." H.R. Rep. No. 841, "paper losses;' need not be subtracted to determine the true economic 99th Cong., 2d Sess. II-147 (1986). It is my belief that the Treasury Depart­ after-tax income for this taxpayer. ment will enjoy, at most, only partial success in this area. See also the 19. Subsidies of this sort in effect change the demand curve for all Lipton article cited at note 13, infra. the factors of production of rental housing, permitting owners of appro­ 13. To be sure, Congress did anticipate many of the avoidance strategies priately zoned land, providers of labor, ftnanciers, etc. to charge more for that might occur to tax advisors and took steps in the Act itself to make their goods and services than would be possible in a more neutral tax those strategies ineffective or less attractive. There are several examples system. Reducing distortions such as these was a major goal of TRA '86. even in the two sections cited in the immediately preceding foomotes. 20. See Clotfelter, Life After Tax Reform for Higher Education However, one gets some sense of what Congress is up against from the Ganuary, 1987 Working Paper, at 7.) titles of articles on the new Act in the December, 1986 Taxes magazine, 21. H.R. Rep. No. 841, 99th Cong., 2d Sess. II-884 (1986). which included an article by Richard M. Lipton entitled: "Fun and Games 22. Section 901 of the Act generally requires recapture of excess bad with OUf New PALs," (noting that "many opportunities for creative tax debt reserves of banks over a four-year period. planning" are provided by the new passive activity loss rules. 1986 Taxes 23. The $10,000 payment to the supplier of the machine that was at 801). The same issue contained a commentary on the corporate tax only worth $9200 to the buyer could be viewed as a $9200 payment for reforms, the centerpiece of which was the repeal of the pro-taxpayer the machine, and an $800 payment for the tax credit. General Utilities doctrine. This latter piece, by Louis S. Freeman, was 24. See Special Analysis G, in SPECIAL ANALYSES, BUDGET OF entitled: "Some Early Strategies for the Methodical Disincorporation of THE UNITED SThTES GOVERNMENT, FISCAL YEAR 1988, at G-l. America After the Thx Reform Act of 1986: Grafting Parmersbips onto C 25. For example, the provisions of IRC § 585, which in past years Corporations, Running Amok with the Master Limited Parmership Con­ have allowed commercial banks to deduct larger additions to bad debt cept, and Generally Endeavoring to Defeat the Intention of the Drafts­ reserves than were necessary properly to account for their loan losses, men of the Repeal of General Utilities." (1986 ThXES at 962.) These might be considered a pure loophole, rather than an indirect purchase of papers were presented at a tax conference held less than one month some quasi-public good or service. Even this relatively uncontroversial after the TRA '86 had been signed into law. example, however, shows how treacherous it can be to divide tax expen­ 14. For example, when the revenue estimators at one point revised ditures into those that accomplish some Congressionally approved pur­ downward their overall revenue estimate, they were harshly and publicly pose and those that do not. It could be argued that a generous bad debt criticized by Senator Packwood. For a brief description of this episode, reserve provision was considered by some in Congress as a means of see 33 Tax Notes at 698, November 24, 1986. ensuring a greater degree of bank solvency and safety, or perhaps as a 15. Some early conftrmation about the overall revenue judgments means of compensating banks indirectly for the opportunity costs of expressed in this paper was provided by the Treasury Department in satisfying Federal Reserve Board reserve requirements. Presumably January, 1987 when it announced that it estimated that the new tax law Congress had some reason for allowing banks to accumulate excessive would in fact lose $15.7 billion in revenue, compared with the old law, bad debt reserves. In some sense, the only reason for continuing a tax over the FY 87-91 period. The Treasury attributed the difference between expenditure that would not support my argument here regarding the in­ its estimate and the Joint Committee on Thxation estimates as stemming direct purchase of quasi-public goods and services would be if Congress' from, inter alia, "different responses in taxpayer behavior" from those motive for the provision were simply to provide rate relief. That is, if some assumed by the Joint Committee. (Letter from O. Donaldson Chapoton, of pre:rRA provisions were intended primarily to relieve the burden of the Deputy Assistant Secretary of the Treasury, as quoted in 34 TAX NOTES 50 percent individual rate (or the 46 percent corporate rate), then repeal­ 310, Jan. 26, 1987.) The Congressional Budget Office has also provided ing the favorable provision at the time that rates are cut creates no reduc­ new estimates of the revenue effects of the Act; it predicts a $9.1 billion tion in quasi-public goods and services financed. revenue loss. Id 26. Special Analysis G, supra note 18, at G-39 to G-40. 16. See Surrey, Tax Incentives as a Device for Implementing Govern­ 27. Id., at G-38, G-41. ment Policy: A Comparison with Direct Government Expenditures, 83 28. Id., at G-38. HARV. L. REV 705 (1970); Surrey; Federal Income Tax Reform: The 29. Note again the titles of the Surrey articles cited supra in note 12: Varied Approaches Necessary to Replace Tax Expenditures with Direct they make it quite clear that Surrey himself, at least, did not intend that Governmental Assistance, 84 HARV L. REV 352 (1970). activities supported by tax expenditures be abandoned, but merely that 17. For simplicity, I have assumed in this and the following =mpJes they be supported at suitable levels by direct appropriations.

VOL. 5, NO.2 / 31

Duke LaW" School Conference on Career Choices

'1f I only knew then what I know far away as California, Colorado dents were pleasantly surprised by now ... " and Wisconsin returned to the Law the presentation. One remarked School to share their personal and that he was "pleased to hear that How many times have you heard professional experiences with cur­ there are rewarding careers outside that phrase? If you are like most peo­ rent students. Many of them com­ large law firms in large cities." ple, probably a hundred times. In mented that they were delighted to International Law Careers. While fact, it is likely that you have used participate in a program which they practicing in a small city may be one it more than a few times yourself. wish had been available to them as option available after graduation, It is only natural to feel that the students. another appealing option might be critical decisions you agonized over The topics presented in the pro­ practicing in one of many exotic are easier when viewed with hind­ gram were based on the results of places around the world. After all, Sight. After all, you are able to draw a law student survey. Six panels were there would be a certain charm upon a wealth of personal experi­ presented: "Off-Broadway" Practice; and mystique in flying to Europe ence. Your successes and failures International Law Practice; In-house or the Orient to counsel a client. provide guidelines for each future Corporate Counsel; Alternative The International Law Careers decision you make. Legal Careers; Firm Speciality Areas; panel, sponsored by the Interna­ Unfortunately, however, few and Balancing Career and Personal tional Law Society, addressed an people benefit from the previous Decisions. audience of interested students successes and failures of others. Off-Broadway Practice. This panel about pursuing careers in this field. Rather, each of us is left to perpetu­ brought back alumni from five smaller The discussion was filled with re­ ate the never-ending cycle of trial cities across the country and one flections of the fascinating people and error. A step was taken at Duke representative from a "boutique" and places encountered by each Law School this spring to combat firm. The panelists mainly addressed of the attorneys on the panel. this unfortunate cycle. Recognizing the concerns of students about legal Perhaps the most encouraging that career decisions are among the opportunities in smaller cities. The portion of the discussion came most critical faced by law students, discussion provided several impor­ when the panel members noted the Duke Bar Association and the tant insights. First, the panel assured that the field of international law is Law Alumni Association jointly the audience that the size of the quickly expanding. Many firms are sponsored a program designed to firrns in their cities was as varied as opening offices in foreign countries provide insight into this area and to that in larger cities. One could choose to better serve their international help minimize the agonizing pro­ a small "boutique" firm, a mono­ clients. With this growth trend, the cess of trial and error. The program lithic general practice firm rivaling demand for attorneys now exceeds was entitled the Conference on the Wall Street giants, or anything the supply. A great deal of travel is Career Choices and was modeled in between. Second, with regard to generally required to practice in after a program of the same name sophistication of practice, not one this field, but the panel members for Duke undergraduates. The pro­ of the panelists felt that he or she agreed that international law can gram consisted of a series of panel had compromised the qUality of legal definitely provide a challenging and discussions featuring Duke Law practice in choosing to work in the rewarding experience for the right alumni in various legal fields who respective locations. Rather, in addi­ person. could provide information regard­ tion to being challenged at work, In-House Corporate Counsel. This ing their different careers and how the panelists felt they enjoyed a panel consisted of four alumni from personal objectives may relate to "higher qUality of life". They based the legal departments of major multi­ career choices. The day ended with this opinion on the lower cost of national corporatiOns. The panel a reception for all students and living and more relaxed lifestyle discussion was structured to describe conference participants held in present in most smaller cities. In the opportunities available in each honor of the graduating class. short, the panel expressed the view corporation's legal department and The alumni response was over­ that practicing in smaller cities was then compare those opportunities whelming and truly heartening. a viable alternative that should be with those available in firm prac­ Twenty-nine law alumni, from as explored by all students. Many stu- tice. The panelists generally agreed DUKE LAW MAGAZINE I 32

while practicing law was attractive, investment banking was more in line with his career interests. Brian Stone, '63, found that providing legal services to the needy was more important to him than serving the stereotypical clients of a large f!fm. For others, the type of life­ style allowed by another field may be the attractive feature. For Michael Richmond, '71, the relaxed work environment of teaching law, coupled with its job satisfaction, makes it one of the most rewarding careers around. "It allows me to deal with many issues on a highly intellectual level and permits me to pursue out­ side interests more than any other career." The pursuit of an alternative legal career did not necessarily entail taking a drastic cut in salary, as Mr. Forlines and Robert Mitchell, '61, President of Law & Technology, illustrate. Salary was simply another consideration in deciding which Chris Sawyer '78, and jim Padilla '78 take time to answer students' questions [allowing the Law Firm SpeCialties presentation. career path to take. In all, students attending the Alternative Careers Panel found that a world of oppor­ that the opportunities offered in summer clerkship. In that way, the tunities lies open to them upon grad­ corporate legal departments are as student would be utilizing a clerk­ uation. The only limiting factor is challenging as those found in f!fm ship to broaden his experience and the imagination. practice. Being an attorney with a education, the true purpose of sum­ Firm Speciality Areas. This panel corporation also provides other bene­ mer clerkship programs. consisted of six attorneys represent­ fits. The in-house attorney becomes Alternative Legal Careers. This ing some of the major practice areas involved with legal concerns as they panel showed the breadth of appli­ of a large firm. The panelists described arise. In this way, the attorney's cations of a legal degree. The panel their areas of practice, then pro­ efforts are geared more toward pre­ was comprised of an investment ceeded to explain both the benefits venting problems than fixing them. banker, a corporate entrepreneur, a and drawbacks associated with them. Because their advice generally is law school professor, a part-time Robert Montgomery, '64, a corpo­ forward-looking, the hours of in­ law professor/part-time law school rate attorney from Los Angeles, and house attorneys tend to be less administrator, and a public interest Christopher Sawyer, '78, a real estate extreme than those of their counter­ lawyer. The varied backgrounds of attorney from Atlanta, described their parts in private firms. the panelists, though not represen­ fields as forward-looking. Both noted The benefits, however, are not tative of all possible applications of that they were challenged working without cost. The panel members a law degree, were intended to illus­ with top corporate management did note that they may receive less trate that a law degree can be the structuring deals which had far .' compensation than attorneys with key to many opportunities. The panel­ reaching effects. Julie Davis, '64, a comparable experience in private ists stressed that the basic skills tax attorney from Washington, D.C., firms. Also, an attorney with a cor­ learned in law school-effective com­ described tax practice as "cerebral porate legal department is subject munication, problem solving, and and intellectually draining." She to being transferred. The panelists organization-are generally in great described a precision-oriented field felt, however, that the benefits demand and that with a little desire geared toward achieving the most received from practicing with a and creativity, the holder of a law correct answer for clients. While corporate legal department are degree can go just about anywhere Ms. Davis noted that dealing with worth the compromises they had he or she desires. the IRS can be a frustrating experi­ made. One of the panelists, Martin They also noted the benefits of ence, the monetary rewards of tax Avallone '86, suggested that the alternative careers. For some, an alter­ practice can make it bearable. James students at least look into corpo­ native career may be more satisfying. Padilla, '78, a commercial law attorney rate practice, perhaps through a John Forlines, '82, indicated that, from Denver, described the inner- VOL. 5, NO.2 / 33 workings of his practice. He said Majestic, '82, and Elizabeth Roth, ment process. Upper-classmen found that he truly enjoys his current '82, provided a viewpoint of women it a great way to reaffirm their career practice area, bankruptcy, where he entering the legal profeSSion after the choices and/or to get more infor­ aims to keep clients afloat. Steven women's movement had supposedly mation about some aspect of their Gilford, '78, of Chicago and Gusti attained equality. chosen legal career. One student Frankel, '84, of Winston-Salem pre­ Surprisingly, all of the women noted that while the Conference sented contrasting views of litiga­ noted that many prevalent issues did not result in any particular tion practice. Both described the remain unresolved by firms, and change in career plans, "it has given field as backward-looking; they the responses of firms which have given me a lot more to think about." enjoyed piecing together the facts taken action have been inconsistent. The aspect of the Conference most to create a case for their client. Ms. The uncertainty of response can appreciated by the students was Frankel noted that life in the litiga­ make certain personal choices, such the opportunity to hear the infor­ tion field is "hassled," but that by as having a child or requesting part­ mation from alumni first-hand. As carefully selecting your firm's size time employment, a risky under­ one student put it, 'Any informa­ and location you can fmd the life­ taking. Donna Gregg also noted tion is helpful, but delivery via style most suited to your needs. that these decisions are not solely flesh and blood alumni was even Balancing Career Choices and "women's issues" but are issues more so." Other students found the Personal Decisions. In the most which must be faced together by discussions to be "candid," "help­ well-attended panel of the day, a couples. She pointed out that her ful," and "insightful." A similar re­ group of Duke Law alumnae, spon­ husband, Robert Gregg, '74, had sponse was received from the alumni sored by the Women's Law Society, also made many career choices participants. They found the pro­ discussed a series of ever-increasing based on the decisions they had gram to be a healthy exchange of concerns faced by women profes­ made regarding their personal goals. information and would welcome sionals and two-career families. The As indicated by the large attendance, the chance to participate again in panel took a unique chronological many law students were obviously the future. approach to the topic. Sandra Strebel, interested in learning how panel Due to the positive response from '62, and Elisabeth Petersen, '72, members had handled these prob­ students and alumni, the Confer­ described the frustrations of enter­ lems. One member of the audience ence will be an annual event at the ing a male-dominated legal profes­ noted that the panel was "a rare Law School. Though an ambitious sion before the women's movement opportunity to get some useful and undertaking, the Conference will of the 1970's. Many of the students practical information on legal prac­ undoubtedly help many students in the audience were surprised by tice." Another found that the panel make a more informed decision in the difficulties faced by these women brought home the "importance of selecting their career path. in seeking acceptance a relatively making decisions in light of your short time ago. Donna Gregg, '74, personal goals." provided the viewpoint of a woman Conclusion. This last comment The author; Robert Nagy, participated entering the legal field when women was typical of student response to in the coordination of the Coriference were first beginning to achieve more the Conference in general. Most on Career Choices and would like widespread acceptance in the pro­ students found the Conference to to take this opportunity to thank the fession. She related a feeling of be a great way to gain insight into students, administrators and alumni accomplishment in making inroads various aspects of the legal profes­ who helped make the program such toward establishing firm policies sion. Many first-years used the Con­ a success. with respect to certain issues, such ference as an aid to fmding a career as pregnancy leave. Finally, Ann path before beginning the recruit- DUKE LAW MAGAZINE / 34

Participants in the First Annual Duke Law School Conference on Career Choices

International Law Careers Steven Gilford, '78 In-House Corporate Counsel (sponsored by Litigation-Isham, Lincoln & Martin Avallone, '86 International Law Society) Beale (Chicago, IL) IBM (Rye Brook, NY) Robert Montgomery, '64 Patrick Fazzone, '81 Rondi R. Hewitt, '83 Corporate Law-Gibson, Dunn Collier, Shannon, Rill & Scott Glaxo, Inc. & Crutcher (Los Angeles, CA) (Washington, D.c.) (Research Triangle Park, NC) James Padilla, '78 Paul B. Ford, '68 Commercial Law-Mayer, David Little, '79 Simpson, Thacher & Bartlett Exxon (Houston, TX) Brown & Platt (Denver, CO) (New York, NY) Vincent Sgrosso, '62 Christopher Sawyer, '78 Ron Katz BellSouth Corporation Real Estate-Alston & Bird Kadison, Pfaelzer, Woodard, (Atlanta, GA) (Atlanta, GA) Quinn & Rossi (Palo Alto, CA) Joseph Pike Balancing Career Choices Graham andJames (Raleigh, NC) and Personal Decisions Kimberly Till, '80 (sponsored by Women's Law Alternative Careers Arnold & Porter Society) for Lawyers (Washington, DC) Donna Gregg, '74 John Forlines, '82 Dow, Lohnes & Albertson Morgan Guaranty Trust Co. Off-Broadway (Washington, DC) (New York, NY) (Comparison of City Ann Majestic, '82 Robert Mitchell, '61 and Firm Sizes) Tharrington, Smith & Law & Technology Associates, Inc. (New York, NY) Harry Griffm, Jr., '63 Hargrove (Raleigh, NC) '72 Professors Gail Richmond, '71, Griffm, Cochrane & Marshall, P.c. Elisabeth Petersen, (Atlanta, GA) Self-employed (Durham, NC) and Michael Richmond, '71 Elizabeth Roth, '82 (Nova University Center Mark Koczela, '83 & for the Study of Law, Godfrey & Kahn Ream, Train Roskoph (Milwaukee, WI) (Palo Alto, CA) Ft. Lauderdale, FL) Sandra Strebel, '62 Brian Stone, '63 John Patterson, '72 & McGuire, Woods, Battle & Spiegel McDiarmid Volunteer Lawyers Foundation Boothe (Richmond, VA) (Washington, DC) (Atlanta, GA) Steve Samaha, '84 Armis, Mitchell (Tampa, FL) Mark Shepard, '82 Buchanan Ingersoll (Pittsburgh, PA) Lori Terens, '80 Ulmer, Murchison, Ashby, Taylor & Corrigan Oacksonville, FL) \~

Large Firm Specialty Areas Julie Davis, '64 Tax-Caplin & Drysdale (Washington, DC) Gusti Frankel, '84 Litigation-Womble, Carlyle, Sandridge & Rice Brian Stone '63, Bob Mitchell '61, and Michael Richmond '71 listen to (Winston-Salem, NC) student reaction during the Alternative Careers for Lawyers panel. VOL. 5, NO. 2 / 35 Duke Society of Medical Legal Affairs: Bridging The Gap Between Law and Medicine

When law students and medical miere of the mm "Eclipse of Rea­ students at Duke University formed son" (the sequel to the graphic and the Duke Society of Medical Legal controversial anti-abortion ftlm, Affairs (D.S.M.L.A.) in the fall of 1986, "Silent Scream"), was attended by many people thought that the group's over one hundred people and drew focus would be solely medical mal­ coverage from three local television practice; they were wrong. "The stations. purpose of D.S.M.L.A. is to foster The formula for D.S.M.L.A .'s understanding and discussion of success, however, depends on com­ the many areas where law and bining hard work with hard play. medicine interface," reports Andy D.S.M.L.A. holds monthly meetings Martin, who co-founded the organ­ and social events. Last fall , for exam­ ization along with Bob McDonough. ple, D.S.M.L.A. hosted a social for According to Martin, "The prolifer­ Officers of the D.S.M.L.A. represent a over 400 graduate students from ation of lawsuits has altered the wide variety ofdisciplines . l. to r. Andy the various schools. Members of pattern and practice of medicine. Martin, M.D. (law); Brad Mindlin D.S.M.L.A. also have the oppor­ While we're interested in changes (law/economics); Bob McDonough tunity to attend conventions of the in the tort system, we're also focus­ (medicinellawlpublic policy); Tom furlano (health adminstration). National Health Lawyers Associa­ ing on medical corporate law, bio­ tion in cities such as Boston, los medical ethics, forensic psychiatry, Angeles, and Washington, D.C and the use of medical experts in which was designed to help first The group's leaders have plans criminal and civil litigation." Partly year law students fmd summer for expansion on the Duke campus as a result of such wide-ranging jobs. Next year the group hopes to and beyond. "We're an organization goals, D.S.M.L.A. includes members sponsor a panel discussion during with a broad interdisciplinary focus, from the schools of law; mediCine, the Conference on Career Choices. and we intend to become leaders health administration, divinity, While the emphasis on medical on the Duke Campus," says co­ public policy, and physical therapy. corporate law has drawn the atten­ founder Bob McDonough. nS.M.L.A. Topics for discussion range from tion of student members from the members took steps in that direc­ "The Ethics and Law of Informed Law School and the School of Health tion this year when they took on Consent," to "The Future of the Administration, the meetings on top leadership positions in the Duke Insanity Defense," and "Risk Man­ biomedical ethics have drawn upon UniverSity Graduate and Profes­ agement in Medical Malpractice." a broader membership base. Under­ sional Student Council (G.P.S .C). One main focus of D.S.M.L.A. is graduates, divinity students, and McDonough, who is working to­ medical corporate law. "Not many medical students share an interest wards joint degrees in law; medi­ people realize that the health care in topics such as the defmition of cine, and public policy, was elected industry makes up about 11 % of death, euthanasia, the treatment of President; co-founder and D.S.M.L.A. the U.S. Gross National Product," severely handicapped infants, and President Andy Martin, a law stu­ says Brad Mindlin, Vice-President genetiC engineering. For example, dent who already has his M.D. of D.S.M.L.A. "Medicine is a big in the spring of 1987, D.S.M.L.A. degree, was elected G.P.S.C Trea­ business which is getting bigger, co-sponsored a panel discussion on surer; and D.S.M.L.A. Vice-PreSident, and it needs corporate lawyers abortion with the Women's Law Brad Mindlin, was elected Secretary. who understand diagnostic-related Society. The panel included Pro­ Martin also has ambitious dreams groups (DRGs), preferred provider fessor William Van Alstyne from of expanding D.S.M .L.A. to other organizations (PPOs), and health the Law School; Takey Crist, M.D. , schools. "We'd like to expand to maintenance organizations (HMOs)." a pro-choice advocate; Jewel Wheeler other schools in the Southeast, Mid­ In an effort to help meet that need, of the National Abortion Rights Atlantic, and West Coast regions this the D.S.M.L.A. sponsored a Health League; and Will Brooks, a right-to­ summer. We'd like to be Duke's con­ Law Job Fair this winter. Fourteen life advocate. Panelists discussed the tribution to graduate schools nation­ law firrns, including several of the legal, medical and political aspects wide. In this way, maybe we'll be largest firms in North Carolina, sent of abortion. The event, which also able to promote harmony between representatives to the Job Fair, featured the North Carolina pre- the medical and legal professions." DUKE LAW MAGAZINE / 36 The Duke Bar Association For years, the Duke Bar Associa­ dents believe has brought the most the Alumni and Special Events Com­ tion ("DM') has served as the student talent, attention, and concern to mittee assisted the Law Alumni Office government of Duke Law School. teaching. The decision is based this year in coordinating the ftrst As such, it coordinates the profes­ upon nominations submitted by Conference on Career Choices. Law sional, social, and other extra­ students. So far the award has gone alumni returned to Duke to speak to curricular activities of the student to Thomas D. Rowe (1985); Richard students on such topics as careers in body. It also serves as a mediator C. Maxwell (1986); and James D. specialized areas of the law, the for students, faculty, and the admin­ Cox (1987). The recipient of the practice of law in particular cities, istration. The DBA oversees all stu­ award receives $500 with which to and alternative legal careers. The dent organizatiOns, publicizes Law purchase volumes for the library: Conference was an overwhelming School activities, sponsors athletic In an effort to increase student/ success and will become an armual and social programs and dispenses faculty interaction, the DBA hosts a event. its dues funds among the School's wine and cheese reception at the Perhaps the most signiftcant func­ organizations. beginning of the school year so tion traditionally performed by the In structure, the DBA is a repre­ that students can meet faculty DBA, however, is the coordination sentative organization comprised of members in an informal, relaxed of various social events. Old tradi­ an executive committee and three setting. In addition, the DBA has tions stand tall: The semi-formal representatives from each class. organized a student/faculty lunch Dean's Cocktail Party remains a gala Seven adjunct committees, com­ program. Each week students now event of the fall semester, and the prised of both student and faculty have the opportunity to have lunch infamous FLAW Day show spooftng members, work in conjunction with with a selected professor. The DMs the Law School experience remains the DBA to bring student ideas and efforts have thus enabled students a highlight of the spring semester. concerns to the attention of the and professors to get to know each Yet, while old traditions remain, Administration. The committees func­ other beyond the confmes of the new traditions are beginning. Stu­ tion in the areas of admiSSiOns; cur­ classroom. dents also enjoy the fall picnic, riculum; placement; faculty appoint­ The DBA, working through its softball season, midnight bowling, ments; the library; alumni and special Curriculum Committee, has helped and a host of other social events to events; and planning. The mission bring student ideas regarding the lighten up an otherwise rigorous of the DBA is a simple one: to improve curriculum to fruition. For example, law school schedule. In its quest to Law School life. The organization the professional ethics course taught make law school life more enjoyable, has been particularly active in re­ to flfSt year students now receives the DBA seeks to bring students cent years in striving to meet its goal. more emphasis than in the past together on both an academic and Recognizing the need to reward due to student concern. In addi­ social level. After all, the students outstanding professors, the DBA estab­ tion, suggestions to enhance the themselves are what make the Duke lished the Distinguished Teaching ftrst year writing program are cur­ experience so special. Award in 1985. Each year the award rently before the faculty. goes to the professor whom stu- The student representatives to

BALSA and Duke La", School

The Black American Law Students dents in chapters at 113 law schools. munity; and influencing law schools, Association, Inc (BALSA) was founded While remaining true to its original legal fraternities, and associations to in 1967 at the New York University mission, BALSA has extended the employ their expertise and prestige School of Law: BALSA's founders scope of the organization's goals in the pursuit of justice and racial hoped that the fledgling organiza­ and activities. equality. Activities designed to imple­ tion would act as a catalyst for change BALSA goals now include: foster­ ment these goals include: moot in the legal system by addressing ing professional competence among court competitiOns; pre-law educa­ the impact of legal proceedings on black attorneys and law students; ex­ tion programs; community seminars; the black community and by serving amining the role of the black attor­ job placement conferences; grant as a resource for black students pur­ ney in the American legal system; programs; and legal aid programs. suing a legal education. Today BALSA encouraging a greater sense of com­ At an armual national convention, is a national organization with a mem­ mitment among black attorneys members review BALSA's progress bership of over 7,000 black law stu- and law students to the black com- and map future strategies. VOL. 5, NO.2 /37

The BALSA chapter at Duke Uni­ who have applied for admission to the quality of life for members of versity School of Llw was established the Llw School. This year, twelve the Durham community. Members in 1976. In 1983, the Duke chapter students from various universities, have volunteered their time and name was changed to the Black including Cornell, Yale, and the expertise in preparing briefs for Llw Students Association (BLSA) to University of Virginia, attended the suits where the potential ruling in symbolize the inclusion of black weekend's activities. Most recently, the case concerns the civil rights of students from other countries. In BLSA, in conjunction with the under­ one or more of the litigants. In addi­ addition to participating in the graduate Black Students Alliance at tion, BLSA works closely with other national conventions, Duke's BLSA Duke, has implemented a program law student organizatiOns and with has been active in addressing a num­ whereby members of BLSA "adopt" the Duke Bar Association to address ber of issues that impinge on the undergraduate students who have issues of interest to the Llw School's legal education of black students at expressed an interest in pursuing a student body. For example, BLSA Duke. One of its most important and law degree. This year Duke's BLSA has cosponsored events with the ongoing activities is working in con­ chapter established an Alumni Forum for Legal Alternatives. Each junction with the admissions office Achievement Award. This award is year BLSA also sponsors Thanksgiving to encourage black students to enroll presented to an alumnusfa who has and Christmas fund raising drives in Duke Llw School. In this way, made significant contributions to to benefit needy Durham residents. BLSA serves as Duke's ambassador the legal community. The 1987 In summary, Duke's BLSA serves as to numerous black students who recipient of the award is Judge a conduit through which black law may be interested in a legal educa­ Charles Becton, '69, of the North students at Duke can pursue their tion. For the last two years, Duke's Carolina Court of Appeals. interests in serving the immediate BLSA chapter has also sponsored a Duke's BLSA also lends the legal Duke Llw community as well as recruiting weekend for black seniors training of its members to improving serving the black community. Duke's Forum for Legal Alternatives: Activism, Education, and Mutual Support

The Forum for Legal Alternatives felt the school needed an organiza­ events on the following topics dur­ (EL.A.) is one of Duke Llw School's tion to initiate a dialogue on cur­ ing 1984-85: the Role of the Public most active and successful student rent political and social issues not Interest Llwyer; Capital Punishment organizations. Composed of students adequately addressed by the school's in North Carolina; Gay Rights and from all three classes who are inter­ curriculum. EL.A. eventuallyex­ the Crime Against Nature Statute; ested in information about less tra­ panded its scope to help publicize and Alternatives to Corporate Llw ditionallegal careers, EL.A. is devoted public interest job opportunities. In Firm Employment. to three central purposes. First, it is fact, Duke's Student Funded Fellow­ The two highlights of that year primarily an activist organization. It ship (S.EE) started as a subcommittee occurred in the spring semester. The unites Duke law students to work of EL.A., becoming an independent first was a presentation entitled for justice and human rights in cur­ organization in the fall of 1978. "The Greensboro Massacre: Has rent political, social, and legal issues. Today, S.EE is also one of the law Justice Been Done?" The keynote Second, EL.A. seeks to fulfill an school's most dynamic groups, col­ speaker was Lewis Pitts, lead attorney educational function. EL.A. regu­ lecting over $12,000 in pledges for the Greensboro Civil Rights larly brings in speakers on a wide from students and faculty in 1986-87 Fund, the organization litigating on variety of topics, ranging from legal to fund public interest jobs. behalf of the widows and families representation of the impoverished E L.A. became dormant in the of the individuals killed by the Ku to the legal and political implica­ early 1980's until it was revived by Klux Klan in November, 1979. The tions of United States intervention David Birman, '87, who has devoted second highlight was a panel dis­ in Central America. Finally, F.L.A. considerable energy and commit­ cussion by members of the Sanc­ provides a network of mutual sup­ ment to the organization. Since the tuary Movement, a predominantly port, sponsoring social events and fall of 1984, F.L.A. has consistently church-based movement providing bringing together students who share increased its membership and activ­ protection to illegal aliens certain to similar hopes and career goals. ities. Under Birman's chairmanship suffer persecution and even death The Forum for Legal Alternatives with a core membership of half a if deported to their native coun­ was founded in the mid-1970's by a dozen first years and a budget of tries. The panel included Sanctuary group of Duke law students who less than $500, EL.A. sponsored attorneys, religious leaders, activists, DUKE LAW MAGAZINE I 38

on January 20th entitled "Rights on Trial": The Lawyer's Duty to Pro­ mote the Public Interest." The conference also featured POVERTY LAW panel discussions and audience questions on the following topics: CONFERENCE The Critical Legal Studies Movement; The Ethical Responsibility of the Legal February 2-9 Profession in the Recruitment and Placement of Women and Minorities; 1987 Pro Bono and Public Interest Work Inside the Law Firm; Ethical Issues Duke Law School in Representing Civil Disobedience Groups; and The Good Moral Re­ quirement for Attorneys. All of the conference events were well attended, especially the keynote addresses, and an illegal alien. Both the Greens­ dissidents, co-sponsored with local which Hlled the largest rooms in boro and Sanctuary presentations chapters of Amnesty International. the law school to capacity. were well-attended and received The keynote participant was Victor In addition, FL.A. members local news coverage, fostering dia­ Davydov, a renowned Soviet dissi­ attended the National Lawyers Guild logue in the community as well as dent who defected to the West to Conference in Charlotte, which fea­ in the law school. tell his story. The second panel tured a workshop on recent devel­ In 1984-85 FL.A. was also in­ gathered lawyers and activists to opments in Section 1983 (42 U.S.c. volved in the CROP walk for Hunger, discuss the legal implications of 1983) law. FL.A. also sponsored the the regional and national conferences AIDS. The participants included collection drive for Oxfam's Day of of the National Lawyers Guild in two attorneys from New York gay Fasting, which netted several hun­ Atlanta, and the sharing of public rights advocacy groups, as well as a dred dollars for famine relief, and interest job information. FL.A. also person suffering from AIDS-related the group held numerous social sponsored a Fall semester potluck complex. The discussion focused events open to the student body, dinner and a picnic lunch after on discrimination suffered by AIDS including pizza meetings and din­ Spring finals, allowing students to victims in employment, housing, ner parties. develop friendships in a more and insurance coverage, as well as Guided by leadership of Co-Chairs relaxed setting. what could be done to prevent Martha Hall and Brad Blower, the Reinvigorated by its 1984-85 such discrimination. 1986-87 FL.A. continued the pace successes, in 1985-86 FL.A. was FL.A.'s First Annual "Conference of the preceding year, bringing numer­ bolstered by increased membership on Ethical Issues in Law School and ous speakers to the law school on and student interest, as well as a Practice" was by far the highlight of issues ranging from problems of larger budget. The 1985-86 FL.A. the 1985-86 year. The purpose of the the homeless to methods of consti­ was led by co-chairpersons David Conference was to assess the ade­ tutional interpretation. Some of its Birman and Chris Petrini. The quacy of legal ethics programs in members decided to direct their events sponsored by the 1985-86 teaching lawyers to fulfill their ethi­ interests to more practical matters group included a presentation by cal and pro bono obligations. It also and have helped local civil rights author and attorney Reed Brody, focused on ethical issues which face attorneys in voting rights and race who utilized his legal skills to docu­ law students and practitioners who discrimination cases. FL.A. again ment human rights violations by seek to advance the public interest. sponsored the Oxfam famine col­ the Contras. FL.A. also sponsored Held January 17-20, 1986 at the Law lection, obtaining significant fman­ speakers on the environment, racist School, the Conference featured key­ cial support from a previously un­ violence in North Carolina, Indian note addresses by Duncan Kennedy tapped segment of the univerSity rights, and apartheid. The organi­ and Arthur Kinoy Duncan Kennedy, population. zation co-sponsored a campus-wide founding member of the Confer­ As in the previous year, the un­ conference entitled "Connections: ence on Critical Legal Studies, gave questionable highlight of 1986-87 Duke UniverSity Symposium on the opening keynote address on was the FL.A. conference. FL.A.'s Apartheid." Friday, January 17. He spoke on second annual symposium, entitled Informative panel discussions pro­ "The Ethics of Professionalism in "Poverty Law Conference;' also vided F.L.A. with two of its biggest Law Teaching and Practice." Arthur drew much support and initiated events of the year. The first was a Kinoy, civil rights lawyer and con­ animated discussions at the Law panel discussion on the human stitutionallaw professor at Rutgers School. The two major speakers rights violations suffered by Soviet UniverSity, gave the closing address for the conference were Robert VOL. 5, NO.2 I 39

Hayes and Ralph Nader. for minorities and consumers were res entation for groups typically Robert Hayes is the Founder and attained in the 1960's because the excluded from the legal system. Legal Counsel for the National Co­ struggles were highly visible and Participants included the directors alition for the Homeless in New York the activists very creative. Today, of the clinical programs at Duke, City. He spoke at the Law School the same struggles are less pub­ the University of North Carolina at on Monday, February 2 about the licized but equally important. Nader Chapel Hill, and North Carolina plight of the homeless and his efforts challenged students to work full­ Central University. to combat it. Hayes spoke about his time for their primary values. Finally, on Monday, February 9, personal concern for the homeless On February 3, a panel discussion Michael Caudell-Feagan, Executive and the ways in which he used his entitled "Solutions to the Problem" Director of the National Association legal talents to translate that con­ dealt with a range of issues raised of Public Interest Law, spoke on the cern into action. In 1979, Hayes in poverty law, including criminal role of student funded fellowships won a landmark decision in a New and civil defense of indigents, and and public interest law fellowships York City court, which found that the rights of migrant workers, abused in providing representation to the the state constitution required the children, and victims of occupa­ impoverished. Mr. Caudell-Feagan city government to provide shelter tional hazards. Participants included lauded the development of these for all homeless men. The ruling Ann Loflin, a criminal defense attor­ organizations, which have had a was eventually extended to women ney; Philip Lehman, past Executive dramatic impact on the availability and homeless families. According to Director and now senior staff attor­ of legal services to the poor. These Hayes, the solution to homeless­ ney of North Central Legal Services; organizations are a concrete exam­ ness is affordable housing, but the Billie Elerbee, senior staff attorney ple of how law students themselves supply is dropping due to cutbacks of the Farmers' Legal Services in can use their creative energies to in federal public housing assistance Raleigh; Tobi Lipman, attorney for improve the balance of legal ser­ and increased gentrification of urban the North Carolina Occupational vice in a tangible, palpable way. areas. Safety and Health Project; and Maxine As evidenced by these events, The visit of consumer advocate Alexander, a child advocate. The the Forum for Legal Alternatives Ralph Nader on February 5, 1987 was panelists discussed particular pro­ has clearly had a stimulating, posi­ co-sponsored by the Duke Demo­ blems and characteristics of their tive impact on the Duke Law School crats, the North Carolina Public Inter­ work, and, in addition, offered some environment. By supplementing the est Research Group, the Bassett general observations on the nature law school curriculum with its acti­ Fund, Associated Students of Duke and future of poverty law in this vism, educational programs, and University (ASDU) , and the Duke country. support network, FLA members Public Policy and Political Science Two other events focused more and the student body as a whole Departments. Over 400 students on the potential role of law schools go into the world more aware of and faculty attended his speech at in contributing to poverty law advo­ their obligation and more confi­ the Law School. Nader challenged cacy. A Wednesday, February 4 panel, dent of their ability to use their the law students to pursue public entitled "How Law Schools Can legal careers as a force for positive interest and community-oriented Help," addressed how law school change. careers. He pointed out that gains clinical programs can increase rep-

the Law Alumni Association and, The Student Funded now, alumni. In order to maximize the contributors' control over the use of their donatiOns, fellows are Fello"VVships Progratll selected by surveying contributors. Each student seeking a fellowship The Student Funded Fellowships with organizations whose salaries submits a proposal, and contrib­ Program (SFF) is a student run organ­ are insufficient for summer living utors rate the proposals. ization at Duke Law School which expenses. "SFF seeks to correct the SFF has recently expanded in a enables Duke law students to pur­ imbalance in summer job oppor­ spectacular fashion. In a fundraising sue alternative summer employment tunities for Duke law students by drive this past February, SFF raised funding jobs in non-traditional areas, over $12,000 in pledges from current such as civil rights, legal services, students, faculty and the Law Alumni Both SFF and PILF can be con­ and environmental protection," Association. This represented close tacted through the Law School. The noted David Birman '87, outgOing to three times the amount raised in new President oj SFF is Susan SFF Secretary. Funding is provided last year's drive. Using the slogan Maxson, '88. by current Duke law students, faculty, "Work a day in the public interest," DUKE LAW MAGAZINE I 40

SFF encouraged students who had dent Press Law Center, a public in­ eye-catching colors, were designed lined up much higher paying jobs terest group in Washington, D.c. One by Kevin Mulcahy, '88. SFF also co­ with law firms to pledge one day's year later, SPLC offered Goodman sponsored a public interest jobs salary to the Fund. Thus, stipends the job of Executive Director, and forum for first year students in the could be provided for students he accepted happily. fall with the help of Cindy Peters who wished to take summer public SPLC is the only organization in in the Placement Office. "We wanted interest jobs which often pay no or the country which counsels high to dispel the myth that the only low salaries. The money will be school student newspapers about jobs available after the first year are available in the summer of 1988 to their rights and protections against in law firms," said Peggy Force, '88. provide fellowships at a livable censorship. "I love my job," Goodman David Birman, '87, commented level for more students than SFF continued. "I have a tremendous that SFF's vision is being extended has ever funded before. "We're amount of responsibility. I'm the to Law School alumni. "We've got a excited about the enhanced ability only attorney on staff, and I co­ great pool of graduates who gave it gives us to support next year's ordinate a pool of interns and law to SFF when they attended Duke, candidates," said Peggy Force '88, students. I wrote a Supreme Court and we've never written them to outgoing SFF President. amicus brief after three months on ask for support. This year the SFF This summer, SFF is helping the job, and now I'm doing another Board decided to take that step." Duke law students work in jobs as one." Birman explained, however, that diverse as the Legal Aid Society of "It's sad that more law students "the 1987 Pledge Drive was so suc­ New York; the Prisoners' Rights don't have the opportunity to expe­ cessful that SFF decided to spin off Project at Duke Law School; and a rience public interest jobs," Goodman a sister organization. I'm working special investigations project at the reflected. "Many of them would love now with John Keller, '87, and some Department ofJustice, which focuses this kind of work. The pay is liv­ recent alumni to create a new group­ on prosecuting Nazi war criminals. able, and it's the kind of experience the Public Interest Law Foundation, In past years, SFF fellows have that they can never get in a law which will fund year-long fellow­ worked as far afield as Alaska and firm. SFF gave me that opportunity." ships for Duke alumni." Birman Wisconsin on a wide range of legal John Williams, '87, is a more said that the new group, known as issues with public interest organiza­ recent SFF alumnus. Last summer PILF, will be sending out letters to tions such as the American Civil Williams worked with the Sierra SFF's list of prior contributors. How­ Liberties Union, the Sierra Club Club Legal Defense Fund in Juneau, ever, it also will accept support from Legal Defense Fund and legal ser­ Alaska. "I assisted one staff attorney alumni who were unable to sup­ vices offices. on one case, opposing the Federal port SFF while they attended Duke. Graduates of the SFF program Bureau of Land Management's prac­ Another key development for report that it has made a real differ­ tices and policies in Alaska. I did both SFF and PILF this past year ence in their legal education. "It research and writing and sections was the emergence of a Washington, was very helpful in building my of briefs and motions on eviden­ D.C.-based, national association of sense of commitment to increasing tiary issues," Williams recalled. "It law school based fundraising organ­ access to justice," remembers Jan was all federal court practice. I worked izations, known as the National Volland, '83. Volland was an SFF behind the lines; everything was Association for Public Interest Law recipient who worked for legal ser­ ftltered through a staff attorney." (NAPIL). This group offers technical vices. Following graduation, she Williams reported that the SFF assistance to groups like Duke's SFF was a sole practitioner for six months experience shaped his career choice and PILF and has put Duke's fund­ before deciding to join a public in a tangible way. He has accepted raisers in contact with students at interest law firm in Durham. Volland a job starting this fall with an envi­ other schools doing similar work. still works with this firm, Gulley, ronmentallitigation law firm in New NAPIL's Executive Director, Michael Eakes & Volland, and she reports York City. "The fellowship con­ Caudell-Feagan, explained that the that work is going well. "The grant firmed my then shaky faith that it success of Duke's SFF this year is a gave me the opportunity to start is feasible to create a socially re­ small part of a national trend towards this kind of work. Also, I got the sponsible legal practice," Williams increased fundraising in law schools chance to work with individuals said. for public interest law projects. "We're who were committed to the work." SFF engaged in a range of other working with law students and law Mark Goodman, '85, another activities this year to enhance its alumni around the country," said SFF alumnus, reports that the grant principal fundraising work. Lisa Caudell-Feagan. "Last year, student made all the difference in his choice Reed, '88, coordinated a t-shirt and rundraisers raised about half a million of career: "It's because of SFF that sweatshirt sale which raised an esti­ dollars for public interest jobs. And I'm in my present job." Goodman mated $800 for SFF's administrative we think the total can go much worked as an SFF fellow after his expenses. The shirts, featuring an higher, with the high energy that second year at Duke with the Stu- original Duke Law design in bright, students like Duke's demonstrate."

DUKE LAW MAGAZINE /42 Fulbright Scholars at Duke

Since its creation in 1947, the variety of fields, review, evaluate Fulbright Scholar Program (named and rank the applications of schol­ for Arkansas Senator J. William ars applying to the program. The Fulbright, the architect of the leg­ Seventeen Area Committees review islation which created the scholar­ the appropriateness of scholars for ship fund) has provided grants which the annual country programs pro­ have allowed more than 21,000 Amer­ posed by forty-three binational ican scholars to conduct research commissions and foundations and or lecture in countries around the by U.S. embassies. world. In its forty-year history, the Richard C. Maxwell, Harry R. program has done more than Chadwick Professor of Law at Duke, encourage an intellectual "cross­ became quite familiar with the fertilization" between scholars and workings of these committees as universities in countries as diverse he served stints on both varieties. as Togo, Papua New Guinea, Chile, Professor Maxwell served as Chair­ and Great Britain. According to A. man of the AdviSOry Committee on Kenneth Pye, Samuel Fox Mordecai Law from 1971 to 1974 and as Chair­ Professor of Law and Chairman of man of the Advisory Committee for the Council for International Ex­ the United Kingdom from 1974 to change of Scholars (CIES) (the chief Professor A. Kenneth Pye serves as 1977. Before taking on these duties, organization responsible for screen­ Chairman of the Council for Inter­ Maxwell had served as a Fulbright ing and nominating Fulbright Schol­ national Exchange of Scholars. Lecturer himself. In 1970, he was ars), its most important achievement, Fulbright lecturer at Queen's Uni­ "has been its contribution to public and answers legal questions such as versity in Northern Ireland, where diplomacy. American Fulbrighters whether questions asked of applicants he did some teaching of property have demonstrated the best tradi­ are appropriate. The Council makes law. He also enjoyed the oppor­ tions of American scholarship and its recommedations on policy matters tunity to share ideas with scholars the genius of the American system to the Board of Foreign Scholar­ in that country. Some of his pro­ of democracy.... Their greatest ships (Board). The Council is also posals were adopted by a parlia­ contribution to foreign understand­ charged with screening and nom­ mentary commission to revise the ing may well be in their example inating promising young scholars property laws of Northern Ireland. of the combination of excellence and academics already well estab­ Over the past two years, four an, iiversity that has been a char­ lished in their fields for other pres­ Duke Law School faculty members acteristic of American society and tigious grants for review by the have been awarded the prestigious American education." Board. The Board, composed of grant. Percy R. Luney, Jr., Martha Professor Pye has served as Chair­ twelve distinguished educational Price Research Fellow and Senior man of the Council for International leaders, makes final decisions re­ Lecturer in Law, was a Fulbright Exchange of Scholars (CIES or Coun­ garding determination of policy, Research Scholar at the UniverSity cil) for the past two years. The establishment of criteria for selec­ of Tokyo during the summer of Council, a private organization, is tion of candidates and selection of 1986. Professor Deborah A. DeMott, mainly responsible for the adminis­ candidates for awards. John Hope who teaches contracts, business tration of the Fulbright Scholar Pro­ Franklin, James B. Duke Professor associations, and corporate finance, gram. Its thirteen members are nom­ of History Emeritus and professor spent four months in 1986 at Sydney inated by four sponsoring agencies­ of legal history at the Law School, and Monash Universities in Australia the American Council of Education, who has served as Chairman of the under the sponsorship of the Ful­ the American Council of Learned Board, was recently honored as the bright Fund. George C. Christie, Societies, the Social Sciences Research recipient of a Distinguished Fulbright James B. Duke Professor of Law, Council and the National Academy Scholar Award on the fortieth anni­ was a travelling Fulbright Scholar in of Science. The Council develops versary of the program. New Zealand during the summer policy, responds to problems, and The Council is aided in this en­ of 1985. Also during that summer, establishes procedures. It evaluates deavor by its own permanent staff Martin P. Golding, Professor of Phi­ the effectiveness of various aspects of seventy in Washington, D.c. and losophy and Law, was a Senior Visit­ of the program, such as procedures by advisory committees of schol­ ing Fulbright Lecturer in Australia, for ranking applicants, or the extent ars. Fifty DiSCipline Committees, where he lectured on the philosophy of feed-back received by scholars, comprised of leading scholars in a of law at a number of universities. VOL. 5, NO.2 143

For Professor Percy R. Luney, professional careers in government the Fulbright Research grant offered and have risen through the bureau­ an opportunity to return to Japan cratic ranks, much as their counter­ (He previously spent six months as parts have in the private sector." a visiting scholar at the University Partly because of this promotion of Tokyo in 1983.) to continue his structure and partly because of the research on administrative decision­ relatively "apolitical':"-and pres­ making in the Japanese civil bureau­ tigious-nature of their work, cracy. It is a subject closely related "Japanese bureaucrats are typically to the courses he teaches at Duke­ better trained, and more scrupu­ Administrative Law in Japan, Inter­ lous than many of their counter­ national Transactions with Japanese parts in other nations." Professor Businesses and Negotiations with Luney believes that the Japanese Japanese Businesses. civil service model offers helpful In addition to lecturing at the parallels for our own federal bureau­ University of Tokyo and Doshisha cracy, much as American industry University, Professor Luney spent has of late begun to borrow from much of his five month stay inter­ the management techniques of the viewing Japanese government bureau­ Japanese private sector. crats and leading administrative law Professor Luney was greatly im­ scholars on the subject of "admin­ pressed with the students at the Uni Percy Luney had the opportunity to istrative guidance':"-the largely in­ versity of Tokyo, which he refers get better acquainted with Professor formal process of bureaucratic in­ to as "the Harvard of Japan." Their Michida during his stay in Japan. Shinichiro Michida is a professor of fluence on the private sector of life curriculum at the faculty of law law at Kyoto University. In spring of and industry in Japan. Although was broader than the typical course 1987, he taught a course on Inter­ Professor Luney focused on the selection of American legal studies. national Business 'Jransactions with efforts of the Ministry of Interna­ "There are no litigation oriented Luney at Duke Law School. tional Trade and Industry to con­ courses, such as trial practice and trol acquiSition, distribution and evidence, and the emphasis is more in American business. allocation of natural resources and on providing a broad based legal edu­ Professor DeMott became inter­ raw materials, he was especially cation in both Japanese and inter­ ested in Australian securities law interested in the relationship between national law Most graduates of the through prior research on securities government and private industry in faculty of law at the UniverSity of regulation in the Commonwealth that country. "Unlike the United Tokyo enter business or public countries and because of Australia's States, where the relationship service." In Japan, only the very active market in the area of corpo­ between the two is best character­ few who manage to pass the extra­ rate mergers and acquisitions. She ized as 'adversarial,' in Japan the ordinarily difficult entrance exams noted that in Australia, unlike the private industry/public sector rela­ of the legal Training and Research United States, there is a "greater tionship is more cooperative and Institute (in a given year, roughly disenchantment with judicial acti­ reciprocal in nature. The absence five hundred slots are available for vism in the area of securities litiga­ of this adversarial posturing between some thirty thousand applicants) tion. This seems to be consistent government and business in Japan and complete the Institute's two with that country's general attitude greatly affects the way business is year course of study become prac­ toward litigation-it has never been done in that country." ticing lawyers-usually prosecutors, high on anyone's agenda as a source Professor Luney plans to publish defense attorneys, or judges. of reform or change. It is a country several articles from his research on Professor Deborah DeMott spent which has more modest expecta­ administrative guidance. He also in­ four months in Australia in 1986, tions of its judiciary." Consequently, tends to continue his comparative where she jointly taught Securities in Australia there are fewer limits research on the Japanese and Amer­ Regulation with a member of the on either the discretion or "busi­ ican government bureaucracies. University of Sydney faculty and ness jUdgment" of corporate boards "Unlike this country," says Luney, lectured on "Company Law" (the of directors, or on corporate raider "where high-level policy making Australian equivalent of our Cor­ activity positions in the federal government porations or Business Associations Professor DeMott was frequently are typically held by inexperienced course) at Monash University in asked about the recent precedent­ political appointees, in Japan the Australia. She also made a brief setting Delaware Supreme Court civil service-including all but the speaking tour of New Zealand, securities case, Smith v. Van Gorkom, highest pOSition in each ministry­ where she lectured at the Univer­ 488 A.2d 858 (1985), and its impli­ is comprised entirely of career em­ sity of Otago and Canterbury Uni­ cations for the erosion of the "busi­ ployees. Most have spent their entire versity on mergers and acquisitions ness judgment rule" in Australia. DUKE LAW MAGAZINE 144

"There is a great deal of concern University of Otago-and taught and professor of philosophy and law, among many Australian attorneys Torts and Jurisprudence at the Uni­ lectured on jurisprudence at uni­ that the Van Gorkom decision will versity of Otago. versities throughout Australia dur­ undermine the traditionally largely Professor Christie was interested ing the summer of 1985. At the Uni­ discretionary, autonomous role in studying the impact of New Zea­ verSity of Sydney, he "taught part played by the board of directors land's recently enacted comprehen­ of a term which involved regularly of an Australian company." sive accident compensation scheme. lecturing in a course on jurispru­ As a result of her Fulbright ex­ The plan, passed as the Accident dence." At four other universities­ periences, Professor DeMott will Compensation Act of 1972, abolished the University of New South Wales, soon publish two articles in Australian the common-law tort system for Adelaide, Melbourne and Queens­ journals: the fIrst on shareholder accidental injury in New Zealand. land-Professor Golding "lectured litigation in the Commonwealth In its stead, the New Zealand Par­ mostly to the faculties of law." During countries; the second on federalism liament enacted a scheme resem­ his summer in Australia, he also problems in securities regulation bling a modilled, no-fault workers' had an opportunity to meet and law in Australia. compensation plan. Strict liability exchange ideas with scholars from Professor Christie's interest in and intentional torts as common Australia and elsewhere. He attended New Zealand's recent tort reforms, law remedies remained unaffected and presented lectures at the Con­ "in addition to a great deal of curi­ by the Accident Compensation Act. ference of the Australian Society for osity about the country," led him Professor Christie noted that the Legal Philosophy, the Second Inter­ to apply for a Fulbright Travelling plan has been largely successful, national Seminar on the Sources of grant for the summer of 1985. (This mainly because torts for non­ Contemporary Law sponsored by was Professor Christie's second economic damages (that is, inflic­ the Ministry of Justice in Jerusalem, Fulbright Scholarship; in 1961-62, tion of emotional distress) were not and the Twelfth World Congress on he was a Fulbright Scholar at Cam­ widely sought by plaintiffs prior to Philosophy of Law and Social Philos­ bridge University, where he earned the Act. It is for this reason, he ophy in Athens. a Diploma in International Law.) concludes, that such a no-fault plan All four faculty members bene­ During his summer in New Zealand, would not gain acceptance in this fItted greatly from the opportunity he lectured at four universities-the country. to conduct research in their respec­ University of Auckland, Victoria Professor Golding, who holds a tive fIelds and learn from their University (Wellington), Canterbury joint appointment at Duke as Chair­ counterparts at the universities University (Christ Church) and the man of the Department of Philosophy which helped sponsor their visits.

While in Australia, Professor DeMott took an eight day camel safari. Accompanied by two guides, a group of thirteen (all others Australian) mounted at the Camel Farm, which is an hour's drive south ofAlice Springs. They rode to a base camp about 20 kilometers from the Farm, and, on subsequent days, took rides out into the desert. VOL. 5, NO.2 I 45 Duke Law Alumni Pursue Diverse Second Careers

Though this is his flrst published guarantee legal jobs to attorneys, who novel, Britton says he has been writing were also required to go through for years-mostly poems and stories regular basic training in addition to for friends. He also did extensive OffIcer Candidate School. Britton writing while at Duke Law School decided to the take the shorter com­ and not just briefs and memoranda. mitment and hope that the Marines Chris wrote for the Devil's Advocate, would need another lawyer. He was the collection of satirical and amusing not the only Duke law alumnus to poems and stories published by Duke take that deal, however; Britton went Law students. At that time, the through Marine basic training with his Advocate was weekly and Britton friend and classmate, Mike Hardin. was one of its main contributors. Britton also did a tour of duty in The novel revolves around the Vietnam, and, upon his return to beating death of a young Marine the Marine base in San Diego, he recruit at boot camp in San Diego served the Corps as a lawyer, which and the subsequent court martial included defending some drill instruc­ of his drill instructor (DI). The main tors who had been carried away by character, Mike Taggart, is a young the physical training of their recruits. Marine attorney who has left his asso­ Though he never defended anyone ciate's pOSition at a large Chicago against a murder charge, he particu­ law flrm to complete his military ser­ larly remembers defending a DI Christopher Britton '68 vice in the Marine Corps, including accused of stomping a recruit. The a tour of duty in Vietnam, and who man was acquitted. The Author. Christopher Britton, fmds himself serving as defense So how much of the novel is practicing attorney and Duke Law counsel for the drill instructor. The drawn from Britton's life? He admits alumnus, class of 1968, has published year is 1971, and, as the Marine Corps that much of the book is real. In his flrst novel, Paybacks (Donald 1. command presses for a quick trial particular, the trial as well as the Fine 16.95; Popular Library 3.95) to negate a public image condon­ military background and settings According to its reviews, the novel ing brutality, Taggert fmds himself and much of the interaction are an contains "especially realistic court battling not only the prosecution amalgam of Britton's experiences. martial scenes with vivid presenta­ but an unsympathetic press (with Two of Taggert's fellow attorneys in tion of legal points"; provides "ex­ the exception of one young tele­ the novel are closely modeled after Citing courtroom drama reminis­ vision newswoman who is at least two of Britton's friends in San Diego. cent of The Caine Mutiny;" and sympathetic to Taggart if not to his Other characters and situations displays "an impressive knowledge client or the military system) and in the novel are completely flctitious, of courtroom warfare." Such acco­ an ailing marriage characterized by however. Though he did work as lades are hardly surprising given the a wife who would prefer the role an associate in a large midwestern author's background. The highly of rising young lawyer's wife to flrm before deciding to strike out acclaimed realism of the courtroom that of military wife. on his own with a smaller flrm in drama can probably be attributed There are many interesting par­ San Diego, he remembers his former to his continuing experience as a allels between Taggert and Britton. flrm fondly It was not the legal practicing attorney He may have Britton also interrupted the normal factory requiring stereotyped person­ also drawn upon experience gained course of his legal career to fulfill alities and lifestyles which Taggert while still in law school. Britton his military service. He left his asso­ feared rejoining in the novel. Indeed, took the job of deputy sheriff in ciate's position with Arter & Hadden Britton remembers his fellow attor­ Hillsborough while he was at Duke in Cleveland after one year to serve neys there as being very supportive, Law School. As part of that job, he three years in the Marine Corps. Why particularly when he had to leave also served as bailiff in court there, the Marine Corps? Britton explains to fulfill his military obligation. He and he particularly remembers one that the Marines only required three only decided not to rejoin them fascinating murder trial during his years commitment if you enlisted. because he had fallen in love with tenure. The catch was that they would not San Diego. He is also quick to point DUKE LAW MAGAZINE I 46

out that there has been no Veronica, Taggert's extracurricular love inter­ est, in his life. In fact, he and his wife, Mona, have been sweethearts since they were seventh grade school­ mates back in Iowa. For Mona's sake, he also points out that Taggert's estranged wife, Cathy, who deplored his Marine Corps involvement is not modeled after his own experience. So, as all beginning writers are urged to do, he based his writing on what he knew and let his imagination take it from there. Yes, Britton is working on another novel, but since he also has a busy practice, it may take a while to com­ plete. He spent one year on the fIrst draft alone of Paybacks. Rewriting and shepherding the manuscript through the publishing process Cbarles Springman took still more time. As Candace Rick Horton '80 Carroll, '74, friend and fellow Duke Law alumna in San Diego opined, art. So in September of 1982, he sity before entering Duke Law School. "I think he gave up sleeping for left the security of the large fIrm Much of his work still resides in awhile." Chris made good use of and, bringing some clients with North Carolina in both private and his legal training during this pro­ him, started his own fIrm in New public collections, including the cess when he found it necessary to York with fellow North Carolinian, North Carolina Museum of Art in negotiate with his publisher regard­ David Lloyd. Horton's art actually Raleigh and the Duke University ing his edited manuscript. Evidently, brought the two partners together School of Medicine. In addition, he the editor, a World War II veteran, originally as they met when both exhibits often in North Carolina. His made a number of changes which were law students in North Carolina, work is also spreading throughout did not suit the tone of the novel. and Lloyd bought some of Horton's the country and the world. He has Britton listed the changes which work. "The fIrm has actually evolved exhibited in galleries as far flung as were important to him, prioritized to the point where I am able to Connecticut, Minneapolis, and San them and held a marathon negotiat­ spend about 95 % of my time on Diego; and his work is in public col­ ing session with the publisher from my art at this point," reports Horton. lections from the Musee National dM which he emerged with the most Along with two law school professors Moderne in Paris and the Puccini important passages intact. who are of counsel to the fIrm, Lloyd Museum in Italy to the Museum of handles the remainder of the legal Modern Art in New York. The Artist. Rick Horton, '80, work, in addition to serving as Primarily a painter, Horton has divides his time between his law Horton's business manager. also worked in a variety of media office and his art studio in New Most of Horton's time then is and techniques, including collage, York, which is not surprising since spent in his studio-a loft on the object construction, drawing, and he also took some time to study art top floor of a converted warehouse photography. In fact, Horton found during his law school career. In which sounds quite romantic Horton, that he could have launched a sep­ 1978-79, following his second year, however, feels that too many would­ arate career as a photographer. His Horton received the North Carolina be artists see only the romance and photographs have appeared in For­ Artists Fellowship and spent the year neglect the practical side of life. He tune, Business week, Forbes, Us. living and working in Paris. He re­ likens surviving as an artist to being News and World Report, and Opera turned to the Law School-to the a one-man corporation. "I am every­ News. He served as Director of surprise of many who thought he thing from president and CEO to Photography for several documen­ would give up law for his art-and shipping clerk and garbage man." taries, including two for the Ameri­ graduated in 1980. Before establishing himself in his can Broadcasting Company which Following graduation, he went studio, Horton had lived, been edu­ took him around the world photo­ to work for Reid and Priest on Wall cated and worked in North Carolina. graphing famous people. The two Street for two years. During that time, He was born in Concord, North Caro­ mms, "I Live for Art-Tosca" and however, he felt that he would like lina and received a B.S. in engineer­ "To Be-Hamlet", explored the per­ to have more time to devote to his ing at North Carolina State Univer- sonalities of people known for these VOL. 5, NO.2 147 preeminent roles. For example, during ings. He does try to make himself Halsted Street in March of 1987. mming of the Hamlet piece, he available to answer questions or Food will be served at The Hidden worked with Laurence Olivier, John respond to problems and does a Shamrock-mostly chili and sand­ Gielgud, Richard Burton, Maximillian thorough inspection at regular wiches, though their Irish manager Schell and Ben Kingsley. Although intervals. may also convince them to serve he enjoyed the photography, he has His partners, Jack O'Donnell some Irish favorites, like shepherd's decided to devote himself to paint­ and B. ]. Nolan, are long-time pie, to accompany the Guinness ing for now. friends. In fact, the three attended and Harp beers on tap. Holy Cross together, where they Both establishments are "neigh­ The Entrepreneur. All young played on the same rugby team. borhood-type taverns" with a 25-35 associates are expected to partici­ They opened the first establish­ year old crowd, and both feature pate in bar activities. Mike Harvey, ment, Mamie Riley's, at 2540 North live Irish music during the week. '84, though a busy associate at Isham, Clark Street in October of 1986. Harvey reports, "The atmosphere is Lincoln & Beale in Chicago, has found Their first venture was fairly small very relaxed and everyone seems time for a different variety of "bar but began to attract a good crowd to have a lot of fun . . . or at least activities." He is part owner of two from the neighborhood mainly by I'm having a lot of fun." He invites bars on Chicago's Northside in the virtue of word-of-mouth advertis­ all of our Chicago Duke Law alumni Lincoln Park area. Actually, with ing. Building on this success, the to drop in any time, or "if you're two partners and a full-time mana­ three partners opened The Hidden ever in Chicago, please stop in for ger, Mike does not have to spend Shamrock, a slightly more ambi­ a pint." too much time on these undertak- tious undertaking, at 2723 North DUKE LAW MAGAZINE / 48

Alumnus Profile Making Waves on Wall Street Gary Lynch) )75) Director of the SEC Enforcement Division

he served on the Editorial Board of of Enforcement has racked up the Duke Law journal. following successes: After graduating, Gary worked -Recovered $7.8 million from a one year as an associate at a Wash­ group of foreign investors who had ington, D.C. firm. Finding his expe­ used inside information to turn a rience less than satisfying, he left high profit in the stock of Santa Fe and traveled for a while, trying to International Corp. in 1981 before decide if he really wanted to be an it was acquired by Kuwait Petroleum attorney. His motivation to join the Corp. SEC as a staff lawyer at the Division -Required First Boston Corp., of Enforcement arose more from the first major investment banking economic necessity than from a firm ever accused of trading on in­ passion for securities or law enforce­ side information obtained from a ment. In his own words, however, client, to pay over $400,000 in once there he loved it. "I was given fines and restitution. a case and told to run with it." Mr. -Won a federal grand jury in­ Lynch quickly mastered the com­ dictment of five individuals, includ­ plexities of the investment world ing attorney Michael David, 27, an and progressed rapidly up the ranks. associate at New York's Paul, Weiss, From staff lawyer, Lynch became Rifkind, Wharton & Garrison. The chief of the branch of the enforce­ indictment charges an insider trad­ Ankers Capitol ment division which policed cor­ ing scheme in which confidential Gary Lynch '75 porate takeover practices and then information concerning pending assistant director of enforcement. takeovers was taken from the law At the age of thirty-six, Duke Law In 1982, at age 32, he was pro­ firm by Mr. David and passed on to School graduate Gary Lynch is the moted to associate director of en­ two brokers in Drexel Burnham's competent and innovative director forcement. When prior enforce­ arbitrage unit who used the infor­ of the Security and Exchange Com­ ment chief John Fedders resigned, mation and traded in the securities mission's Enforcement Division. Mr. Lynch was appointed acting for their clients. Under his leadership, the Division director and then director of the -And, in the biggest success of of Enforcement has sent shock waves Division of Enforcement in April, all, initiated the largest insider trad­ through Wall Street by aggressively 1985. ing case ever by charging Dennis investigating and prosecuting big In his position as Director, Mr. Levine, Drexel Burnham Lambert and small players alike for viola­ Lynch is responsible for overseeing Inc.'s merger and acquisition spe­ tions of the U.S. securities law. The and directing the efforts of the SEC's cialist, with establishing an elab­ list of successes attained by the SEC six hundred plus enforcement staff, orate insider trading scam in which during Mr. Lynch's directorship is including three hundred attorneys, he amassed about $12.6 million truly remarkable. most of whom are based in Wash­ dollars in illicit profits by trading Gary Lynch grew up in rural ington, D.c. In addition, Mr. Lynch on privileged information about Middletown, New York. Gary first is responsible for working with and upcoming mergers. The SEC won became interested in the world of addressing the concerns of the pres­ a preliminary injunction, freezing stocks through his father, who en­ identially appointed commission the assets of Mr. Levine. Mr. Levine joyed playing the stock market as a itself, while taking care to see that cooperated with SEC investigators hobby. Mr. Lynch earned his B.A. in the complex and often turbid re­ and helped put them on the path 1972 from Syracuse University, where quirements of the securities law are leading to Ivan Boesky, who had he was Phi Beta Kappa. From there, enforced. agreed to pay Levine for tipping he entered Duke Law School and Since Mr. Lynch began his direc­ him off on the mergers. Boesky graduated in 1975 . While at Duke, torship in April, 1985, the Division signed an admission of guilt and VOL. 5, NO.2 /49

paid $100 million in fines and resti­ tution. Boesky has also agreed to cooperate with investigators, and this unprecedented, large-scale in­ vestigation continues to this day The Boesky case has been headline news for months and has put to rest (at least for the time being) the peren­ nial criticism that the SEC is too timid to go after the really big players. -Continuing investigations into Boesky's dealings led to charges against Martin A. Siegel and Boyd L. Jeffries. Siegel, a principal archi­ tect of takeover strategies at two of Wall Street's most powerful firms, pleaded guilty to criminal charges Gary Lynch and Professor James Cox spoke at the inaugural meeting of of insider trading and also agreed the New lVrk Area Duke Bar Association on "The Law, Lawyers and to civil penalties requiring him to Jnsider Trading." I. to r. James Cox, James Crouse, President of the New give up more than $9 million in lVrk Area Duke Bar Association, Gary Lynch. cash and assets. On three occa­ sions, according to the SEC, Mr. Gary Lynch took time from sions of substantive legal areas. Siegel secretly met agents of Mr. his busy schedule to participate The Law Alumni Office reports Boesky in public places, exchanged in the inaugural meeting of the significant growth of local law passwords and was given suitcases New York Area Duke Bar Associ­ alumni associations. There are full of cash. The payments were in ation on December 4, 1986. The presently twenty-nine such groups exchange for information regarding evening began with a discussion across the country; with eight corporate takeover battles which he of "The Law, Lawyers, and Insider more actively organizing. The learned about as an investment banker Trading" by Gary Lynch and Pro­ number of law alumni events at Kidder, Peabody & Company. Evi­ fessor James D. Cox from the held in cities across the country dence supplied by Mr. Siegel has led Law School, followed by a cock­ has also significantly increased in to insider trading charges against tail reception. The event was very recent years, from twenty-two other Wall Street figures. Expanding well received and the evening en­ such events in 1981-82 to well the reach of the investigation to the joyed by the approximately eighty over fifty events in both 1985-86 West Coast, Boyd Jeffries, founder Duke Law alumni in attendance. and 1986-87. and chief executive of Jeffries & This program is in keeping with If you are interested in find­ Company in Los Angeles, agreed to an attempt to respond to law ing out more about these pro­ plead guilty to charges of stock manip­ alumni requests to include sub­ grams, please contact the Law ulation and helping Ivan Boesky stantive programs with the alumni Alumni Office: break securities laws by concealing events being scheduled now across Evelyn Pursley ownership of some stocks. the country It also reflects what Assistant Dean or The result of these SEC investi­ we hope will be a growing trend Maria Isikli gations may have even more far to invite more of our alumni to Coordinator for Alumni Affairs reaching effects. As charges mount participate in these events, to which 3024 Pickett Road against some of Wall Street's best we traditionally send a Law School Durham, North Carolina 27706 and brightest-not to mention its representative, to enhance discus- (919)489-5089; 489-5096 highest paid-sentiment grows in Congress and across the country for a radical change in trade regula­ ment world standards. Although Mr. Stock Exchange has increased more tions to combat what Senator William Lynch has defended the adequacy than 300 percent; the number of Proximire of Wisconsin calls "a of the SEC's $111 million budget registered broker-dealers has increased systematic pattern of abuse." (About a third of this amount is for more than 80 percent; investment Gary Lynch and his enforcement enforcement.), until this year, there company assets have tripled; and the division-unaffectionately dubbed had not been a staff increase since volume of shares traded over the the "Lynch Mob" by a New York secu­ 1980. In the meantime, according to counter has increased by nearly rities lawyer-have realized these feats a report by Senator Timothy E. 500 percent. This year, however, despite resources which seem inade­ Wirth, D. Colo., since 1980 the the SEC will be able to add thirty­ quate, at least when judged by invest- volume of trading on the New York five additional staff, including approx- DUKE LAW MAGAZINE / 50 imately twenty-two attorneys, and sion of Enforcement is reportedly on national television broadcasts they are seeking a budget of $145 very high, and many of the coun­ and has been featured in Fortune, million. Such a budget increase try's top law graduates make the USA Today, and The National Law would mean possible future staff division their first choice of employ­ Journal. increases. ment, despite the fact that wages Mr. Lynch is a member of the In the meantime, Lynch does not are up to 60 percent less than what D.c. Bar and serves as a member bemoan the precipitous growth of they could earn at top New York on the American Bar Association the monolith on waIl Street his agency firms. Subcommittee on Proxy Solicita­ is charged with policing. He believes Although the insider trading cases tions and Tender Offers and its that time is better spent trying to are dramatic and receive the most Committee on Federal Regulation figure out how most productively publiCity, Mr. Lynch has sought to of Securities. In addition, he has to allocate the staff and resources develop and maintain diversity in prepared numerous outlines on of the division rather than sitting the types of actions the SEC brings. securities law, which are often in­ back and saying that an effective The enforcement program is multi­ cluded in course materials for con­ job cannot be done. faceted-not one-dimensional. In tinuing legal education materials. Two factors contributing to the fact, more of the SEC's resources In addition to his duties with division's major successes are Mr. are devoted to financial fraud and the enforcement division and his Lynch's management style and the disclosure violations than to insider exhaustive array of professional capable leadership staff he has assem­ trading cases. activities, Mr. Lynch values his pri­ bled. He notes "I approach my work In addition to his success as vate family life. Though chasing the way I like other people to ap­ Director of the Division of Enforce­ down Wall' Street criminals occupies proach work. I like to face a prob­ ment, Gary Lynch has written sev­ the bulk of his time, he still finds lem and solve a problem, and not eral articles on insider trading and time for gardening and for playing spend a lot of time philosophizing the legitimacy of defensive tactics basketball on the SEC team. and theorizing about it. I put a big in tender offers. For his work in This ambitious and successful emphasis on problem-solving, and enforcement, he was a 1984 recip­ 1975 graduate enjoys his job as problem-solving quickly." District ient of the SEC Distinguished Ser­ Director of Enforcement and intends Court Judge Stanley Sporkin, one vice Award, the Commission's high­ to continue working for the SEC for of the SEC's most noted enforce­ est honorary award. Mr. Lynch was the time being. That spells good news ment directors, describes Mr. Lynch's also named to the 1986 Esquire for those interested in a business staff as "a group of highly motivated Register, an honor roll of 72 men community that respects the law people who are thinking all the and women under forty who are and plays by the rules, or else suf­ time." The staff morale of the Divi- changing America. He has appeared fers the consequences. VOL. 5, NO.2 / 51

Book Review Justice et Argumentation (Eruxelles: Editions de l'Universite de Eruxelles, 1986; 1.500 FE)

theory of demonstrative proof. touched on a variety of subjects. (Perelman, Preface to Justice, Law One of his major contributions is and Argument at vii, 1980). his challenge to the Cartesian theory that philosophical and scientific Chairn Perelman (1912-1984) was statements whose validity cannot a world-renowned Belgian philoso­ be proved by irrefutable evidence pher who made important contri­ are to be rejected. 1 As applied to butions to legal philosophy and law, the Cartesian approach reached logic. He was born in Poland and its heights in the twentieth century lived most of his life in Belgium. with the doctrine of logical posi­ His main affiliation was with the tivism. Perelman rediscovered the Universite Libre de Bruxelles and importance of persuasive reasoning Vrije Universiteit Brussel, where he and renewed a tradition going back taught logic, moral philosophy and to Aristotle. Through his study and reasoning under its rhetorical form. expose of the theory of argumenta­ He often visited U.S. and other foreign tion, which he called the new rhet­ universities and received several oric, Perelman opened up a wide honorary degrees. In 1953 after a area located between Cartesian colloquium in Brussels, Perelman rationality and emotion-controlled created and directed the legal sec­ irrationality: the area of reason and Guy Haarscher. University of Brussels tion of the National Center for Logi­ reasoned justification.2 (Belgium). Doctor in Law 1971; Doctor cal Research, l'Ecole de Bruxelles, Perelman's theory of argumenta­ in Philosophy 1977. Haarscher has which gave a new direction to re­ tion is based in part on the Aristotelian served as professor of moral, political search in legal logic. He started doctrine of dialectic reasoning. Dia­ and juridical Philosophy at the Free writing in 1945 (De La justice) and lectic reasoning has resort to argu­ University of Brussels since 1978 and Director of the Center ofPhilosophy of published numerous books, some ments of all kinds (including prag­ law. He will make his second visit to of which have been translated into matic or equitable arguments and Duke in the fall of 1987 to teach his English and other foreign languages. appeals to the dictates of justice) course Law and Political Philosophy. Among the most notable English that cannot be reduced to deduc­ language works are The New Rhetoric: tive or simple inductive schemes In justice and Argumentation, A Treatise on Argumentation (Uni­ which would satisfy the goal of Guy Haarscher and Leon Ingber have versity of Notre Dame Press, 1969; Cartesian certainty.3 gathered a series of essays devoted first published in French in 1958) In justice et Argumentation, to Professor Chairn Perelman's legacy and The Realm of Rhetoric (Univer­ Guy Haarscher and Leon Ingber to law and philosophy. sity of Notre Dame Press, 1982; first have made a judicious choice of published in French; also translated essays to illuminate the different As justice is, for me, the prime into Dutch, German and Japanese), directions taken by Perelman's example of a "confused notion", of which is a further development of thought and to show the variety a notion which, like many philo­ the New Rhetoric. Another major of his influence. The essays are sophical concepts, cannot be re­ book, Logique juridique: Nouvelle written by legal thinkers and phi­ duced to clarity without being Rhetorique (1976) was translated losophers from Belgium and other distorted, one cannot treat it with­ countries. The essays celebrate the out recourse to the methods of rea­ into German, Dutch, Spanish and soning analyzed by the new rhetoric. Italian. interplay of philosophical reflection [. . .J Legal reasoning is fertile ground Perelman's major contributions and legal thinking which is never for the study of argumentation: it is to philosophy, logic and legal theory cut off from legal reality and judi­ to the new rhetoric what mathe­ are hard to present in a concise cial practice. matics is to formal logic and to the manner because his thoughts The book contains fifteen essays, DUKE LAW MAGAZINE 152

all but two written in French; one which would put an end to the appli­ ments. One example is the status of is in English: "Raymond Aron and cation of a foreign law as directed Hong Kong, which soon will be Chaim Perelman: Men for the Same by the abstract conflicts rule. under the sovereignty of the Peo­ Cause," by William Kluback, and The third essay by Luc Silance ple's Republic of China while main­ one is in Italian: "Perelman and tackles the intriguing subject of taining a very extensive autonomous Kelsen," by Noberto Bobbio. "Logic, Sport, and Legal Orders." status, particularly in the economic "Perelman's Thought and Search Perelman's treatise on argumentation area. The inhabitants will be in a for Equality" is examined by Leon renews the old tradition of rhetoric country where two economic and Ingber in the light of recent Euro­ and Greek dialectic. His thesis is social systems coexist. pean Court of Human Rights and that the study of argumentation, The next essay by Francois Rigaux Belgian court decisions. Within the the power to deliberate and argue is on the "Judge as Minister of Mean­ EEC the principle of equality between as the distinct sign of a reasonable ing (Ministre du Sens)". In the Traite sexes is inscribed in article 119 of being, had been neglected for three de l!Argumentation Perelman states the Rome treaty and Directives centuries. As applied to the judge's that the judge has the difficult task 75/117 and 76/207 on equality of reasoning in making a decision, of discovering the meaning of the salaries. In practice, however, these Perelman's studies go against the words used by the legislator and provisions do not lead to the reali­ commonly accepted syllogism: the possesses the awesome power to zation of the principle of equality major premise is the enunciation of impress the authority of law on the between the sexes. This poses the the rule of law, the minor premise judicial interpretation of a statute. important question of the "effec­ is the fact and the conclusion is the Rigaux says that a legislative provi­ tiveness" of legal norms. A new decision. The judge's practical rea­ sion only takes its meaning after step must be taken, in the form of soning does not proceed from a having been interpreted by the positive measures designed to cor­ formally correct deduction on the judge. The judge gives it meaning rect past discriminations. The les­ basis of certain premises. and direction. Realizing that Rigaux son here is that it is illusory to Silance applies this theory to an is a professor from a civil law coun­ think that the text of the law is experiment comparing seven deci­ try where statutes have a preemi­ enough to overcome discrimina­ sions from several countries includ­ nent place, this statement is quite tion. The text of the law must also ing Belgium, France, and the United interesting because it reveals an contain "principles of positive action" States, that apply the rules of the agreement with the common law to persuade and condition public Olympic Charter or other athletic interpretation of a statute. opinion and propose voluntary ways associations instead of national or Hermann Petzold-Pernia writes to accomplish proposed objectives. international laws. An extreme exam­ on "Hermeneutics and Application EqUality is one of these "fragile ple is boxing, a sport allowed in of Law in Venezuela." Hermeneutics values" 4 that has concerned Perel­ most countries in spite of criminal is the art or science of interpreta­ man in his quest for justice. It is law provisions on assault and battery tion (in particular, of biblical texts) not enough to legitimize it in a text (p. 45). In such cases, courts apply or interpretation itself. of law; it has to be made effective. rules of a legal order distinct from The next essay on law and revo­ The second essay by Raymond the state order: the law elaborated lution by John Gilissen discusses Vander Elst, 'Justice and Legal Secu­ by private organisms, the inter­ whether a revolution creates a new rity," takes off from Perelman's essay national sport federations. legal order. on Les Notions it Contenu Variable The next essay "Variations on Then, Paul Orianne in "Legal en Droit (1984). It focuses on how the Theme of Tradition," by Paul­ Epistemology and Law Teaching" to reconcile the need for legal secu­ Alain Foriers, addresses the role of writes about Perelman's recom­ rity with the desire for justice. One tradition in law and its authority in mendation to introduce theoretical way is through the judge's flexible doctrinal writings and in case law. and practical courses on argumen­ interpretation of rigid legislative ThenJean].A. Salmon, in "Inter­ tation into the law school curricu­ provisions to satisfy a goal of con­ national Agreements and Interstate lum. This would make the students crete justice. On the other hand, in Contradictions," picks up on Perel­ more sensitive to their society's certain areas, such as conflicts of man's emphasis on the permanent values, which condition the good laws, the objective of legal security dialectic, the constant dialog between working of justice. should prevail over a global objec­ the judiciary and the legislature, the In "Legal Logic and Theory of tive of justice (pp. 21-22). In con­ latter modifying the law to con­ Argumentation of Ch. Perelman," flicts, the rule applied is chosen on form it to public opinion. Perelman Jerzy Wroblewski reminds us that the basis of its abstract character, tried to illuminate the role of con­ Perelman's theory of argumentation, even if a different rule would be tradictions in the creation of legal or new rhetoric, is tied historically more favorable to one of the par­ rules. Salmon focuses on the prob­ to the traditions of Greek philosophy, ties, or more equitable. To prevent lem of contradictions among states especially Aristotle's ideas. He quotes injustices, the outer limit lies in the in the formation, application and pertinent passages defining the new notion of public international order modification of international agree- rhetoric as a theory of argumenta- VOL. 5, NO.2 / 53

tion which is "nonformal reasoning choice, rather than a rational or (1985). This article is part of a symposium in that aims at obtaining or reinforc­ objective one. There could be other honor of Chaim Perelman. 2. Id. at 402. ing the adherence of an audience," choices considered reasonable by 3. Id. at 402. (p. 181, quoting, The New Rhetoric another individual. This theory, 4. The expression "valeurs fragiles" was used (1979), by Charles Leben in Chaim Perelman au /es valeurs and the Humanities at 12). however, works only so far as there fragiles, 2 Droits 107 (1985), which is another Guy Haarscher's essay, ''After is a certain consensus (Haarscher tribute to Perelman's contributions to the theory Perelman," concludes the series. It refers to a pacte social) that the of law, written by a French professor. helps us understand Perelman's legacy fundamental values organizing the ,. by placing it in context and tying its lives of men must be justified in a philosophical premises to the main free discussion and not imposed by currents of contemporary political an authority, by divine inspiration and legal philosophy. Throughout or by violence (p. 225). The new his life, Perelman criticized Cartesian rhetoric implies a pluralistic society, ideas embodied in certainty, clear where several good reasons can and distinct ideas, intuition and confront one another, where the deduction, and he denounced the rights of the minority or the rights powerlessness of rationalism to of the accused are protected. In the settle human conflicts. To Perelman, face of reemerging religious intoler­ law is based on reason and argu­ ance, ambient racism and Stalinian mentation. As a method of thinking non-thinking, Haarscher reminds us the new rhetoric allows us to make that as Sartre said, "on ne nous a rien a choice and to reach reasonable promis" (no one promised us any­ solutions. In legal reasoning, when thing) and that Perelman's thinking the judge decides a case, he seldom must be further explored. We must applies the judicial syllogism. On go to the essential questions in Claire Germain the contrary, he makes a reasonable light of the dangers threatening our Assistant Librarian and choice among several values, such as pluralistic SOciety. Senior Lecturer legal security, but also equity, social in Comparative Law

peace, changes in mores, effective­ l. See Bodenheimer, Perelman's Contribution Duke UniverSity ness, etc. He makes a "reasonable" to Legal Methodology 12 N.KY. L. REV. 391, 401 School of Law Library DUKE LAW MAGAZINE / 54 SPECIALLY NOTED

Patterson Retires as Board of Visitors Chairman

William R. (Pat) Patterson, '50, is ending his second term as Chairman of the Duke Law School Board of Visitors this year. He presided over the annual meeting of the Board in January for the twelfth year. Both President Brodie and Dean Carrington expressed their appreciation to Patterson for his long and valuable service to the Law School. Many members of the Law School faculty also attended the meeting to express their appreciation. Patterson will now serve as an honorary life member of the Board of Visitors. Robert K. Montgomery, '64, of Gibson, Dunn & Crutcher in iDs Angeles has accepted President Brodie's invitation to serve as Chairman of the Law School Board of Visitors beginning in January 1988. Patterson, who has been an attorney with Sutherland, Asbill & Brennan in Atlanta since his gradu­ President Brodie looks on as Pat Patterson acknowledges the appreciation of ation from Law School, is active in the University President, the Law School facuLty, and members of the Board public service. He has also served of Visitors for his service as Chairman of the Board of Visitors. as a Trustee of lenOir-Rhyne College, a member of the American Law Institute, a founding trustee of the communication between the faculty practice, law alumni in other legal Southern Federal Tax Institute, a and trustees and between the Uni­ careers, and other distinguished founding trustee of the Georgia Tax versity and the general public. The personalties from outside the Law Conference, and a founding trustee Board meets once a year to review School. Care is also taken to ensure of the Atlanta Tax Forum. matters of administration, curricu­ diversity of age and geographical The Law School Board of Visitors lum, and faculty and student progress distribution. Though invested with was created by action of the Uni­ and submits formal reports to the no official administrative responsi­ versity Trustees in January of 1963 Board of Trustees regularly. bility or authority, as an arm of the to serve as a reporting and recom­ Members of the Board are University Board of Trustees, the mending body to the Law School appointed by the President of the Board's advice and recommenda­ administration, the University admin­ University to six year terms and tions carry significant weight, and istration and the Board of Trustees. represent a broad spectrum of inter­ its members perform a valuable It also functions to promote better ests, including law alumni in private service to the Law School.

Changes in Law School Administration

Changes in the administrative At the beginning of the year, Pro­ research and support services for structure of the Law School are fessor Horace Robertson became the faculty, relations with the uni­ annual events, but 1986-87 is a ban­ Senior Associate Dean. He has taken versity, including most budget matters, ner year for change. on responsibilities in the areas of and oversight of all administration VOL. 5, NO.2 / 55

A purpose of the changes has been to re-direct the Dean to exter­ nal affairs of the Law School. Dean Carrington will be devoting more time to alumni and development matters. In this fIeld he is assisted by Assistant Deans Evelyn Pursley and Lucille Hillman. Dean Pursley commenced her duties at the Law School in 1985 with responsibility for alumni relations and the annual giving program. She also assisted the Dean with matters involving gifts to the Law School endow­ ment. With this issue, Dean Pursley takes on a new duty, full responsi­ Horace Robertson bility for the Duke Law Magazine. She will henceforth be Assistant Evelyn Pursley internal to the School. Dean for Alumni Affairs and Public With respect to student matters, Relations and will remain Director Foundation, which seeks fmancial Dean Robertson is supported by of Annual Giving. She will be the support for the Private Adjudication Associate Dean Gwynn Swinson, Law School liaison for the Law Center from individuals and corpora­ who was promoted in January from Alumni Association and its govern­ tions. Dean Hillman brings to the Assistant Dean. Dean Swinson is ing body, the Law Alumni Council, Law School twenty years of fund responsible for all student affairs and for the National Council for raising experience, including two matters, including admissions, fInan­ the Law School Fund, the alumni years at NYU School of Law and cial aid, recording, and placement. advisory body for the annual fund. nine years at New York Law School. An Assistant Dean for Major Deans Pursley and Hillman share Projects, Lucille Hillman, came to the task of keeping the dean and the the Law School in February to take senior faculty on the road in ser­ responsibility for administering the vice to the School's external rela­ School's efforts to raise funds for tions. Both maintain their offices in endowment and plant improvement. the Pickett Road Annex. The Annex She thus stands on the front line of now houses the Admissions Process­ our effort to enhance the Law School ing, Alumni Affuirs, and Major Projects building, a twelve million dollar offIces in addition to the Private project. She will serve as Law School Adjudication Center. The growth of liaison for the Major Projects Council, this annex, which is almost three the alumni advisory board for capital miles from the School, marks the fund raising. She will also serve as intense need of the School for more Director of the Private Adjudication space at its main location.

Gwynn Swinson Judith Horowitz became Assistant Dean for International Studies at the beginning of the year. Dean Horowitz administers the graduate degree programs for our international students and the Duke in Denmark program. She is also coordinator of the China Law Program which brings students to the Law School from the People's Republic of China. Her duties in these areas include admis­ sions, orientation, counseling and alumni relations (in conjunction with the Law Alumni Office). Judy Horowitz Lucille Hillman DUKE LAW MAGAZINE I 56

Assistant Dean Pursley Joins the North Carolina Bar

Having passed the July 1986 North Carolina Bar Examination, Assistant Dean Evelyn Pursley became the latest member of the Duke Law School faculty to join the North Carolina Bar. She was presented to be sworn in before the North Caro­ lina Superior Court by Associate Dean Gwynn Swinson, who is also licensed to practice law in North Carolina. Carmon Stuart, '38, presented Dean Pursley before the United States District Court for the Middle Dis­ trict of North Carolina where he had served as Clerk of the Court for twelve years before retiring, and where she was sworn in by the Honorable Eugene Gordon, '41.

L. to R.: Carmon]. Stuart, '38; Evelyn M. Pursley, '84; Eugene A. Gordon, '41.

Law School Receives Gifts for Scholarships and Awards

at Duke Law School. Jack Knight Jack Knight joined the Charlotte died last April at his home in Char­ firm of Robinson, Bradshaw & Hinson lotte. According to Gibson Smith, as their tenth lawyer after graduating who served as the group's spokes­ from Duke Law School in 1971, person in setting up the fund, "Schol­ and he became a partner after only arships will be named on the basis one year. He is remembered by his of outstanding academic potential partner, Richard Vinroot, as "an and motivation as recommended exceptional lawyer and an excep­ by the Dean of the Law School. tional, genuine person." Knight Applicants from North and South concentrated in the area of corpo­ Carolina will be preferred." Assistant rate acquisitions, securities and Dean Evelyn Pursley reports that international transactions. As his the fund was established at a level wife Tena remarked, "You sent Jack which will allow scholarship funds all over the world and he thrived to be awarded immediately, though on it. He jogged by the American Knight's colleagues hope that the Embassy in Iran weeks before the fund principal will continue to grow overthrow of the Shah. He worked as new gifts are received. The fIrst in Saudi Arabia and he even trav­ Knight Scholar will be named in eled to Yemen." the fall of 1987. In addition to the In expressing her pleasure in the income from the scholarship endow­ establishment of the fund, Tena Jack M. Knight ment fund the fIrst award will include Knight found "this living tribute" the memorial gifts earlier donated to be particularly appropriate as Jack Jack M. Knight Scholarship to the Law School by Jack Knight's himself was a scholarship reCipient Endowment Fund classmates "so that he can be suit­ while attending Duke Law School. ably remembered as the fme father, In fact, she remembers Jack's "tak­ Friends and colleagues of Jack lawyer, scholar and husband, as ing a bologna sandwich every day M. Knight, '71, at Robinson, Bradshaw well as friend, that he was to his that fIrst year. He never even looked & Hinson have established a scholar­ classmates and others who knew at another piece of bologna after ship endowment fund in his memory him in the North Carolina Bar." that." VOL. 5, NO.2 I 57

Jack Knight distinguished him­ lowing Professor Charles Livengood's Smith Award self at Duke Law School. Indeed, death, Mrs. Livengood asked to have Endowment Professor Melvin Shimm remem­ memorial contributions which had bers him as "among that handful of been sent to the Law School granted Each year, the graduating stu­ students who stand out across the to a current law student as ftnancial dent who has compiled the most years as exceptional." He served as aid. A Livengood scholar was named outstanding academic record at Editor-in-Chief of the Duke Law in 1986-87. When his mother died Duke Law School has traditionally Journal and graduated as a mem­ this fall, Dr. Livengood determined received the Willis Smith Award. ber of Order of the Coif. He also to perpetuate this scholarship by This award was originally estab­ graduated ftrst in his class, though establishing an endowment fund. lished by Willis Smith, a Raleigh Tena Knight remembers, 'Jack always According to Assistant Dean Evelyn lawyer who graduated from Trinity made me think he had failed his Pursley, in selecting scholarship recip­ College in 1910 and who served as exams. Then he'd surprise me with ients, Dr. Livengood has asked that a United States Senator and a Duke something like first in the class." preference be given to graduates of University Trustee. Two of Willis The memory of Jack Knight Davidson and Trinity (Duke under­ Smith's sons attended Duke Law will be kept alive at the Law School graduate) and to North Carolinians. School. Willis Smith, Jr. graduated where "[h]e was delighted with the Charles H. Livengood, Jr. served from the Law School in 1947 and qUality of the faculty, the diversity on the Duke Law School faculty practiced law in Raleigh until his of his class and the fumness of friend­ from 1948 through 1981. Professor death in a plane accident in 1971. ships made at Duke Law School." Livengood, who was himself a Lee C. Smith graduated from the 1931 graduate of Duke University, Law School in 1953 and practices also served as University Marshal law in Raleigh with Smith, Anderson, from 1953 to 1961. He was a Blount, Dorsett, Mitchell & Jernigan. nationally known expert in the This fall, Lee Smith established a fteld of labor law and worked in permanent endowment fund at the several aspects of that fteld. He was Law School to perpetuate this award. in private practice with law ftrms in Though the award has traditionally New York City and Durham, North consisted of books on a legal sub­ Carolina; he served in the United ject of the recipient'S choice, Mr. States Department of Labor as re­ Smith has left the form of the award gional attorney for Kentucky and in future to the discretion of the Tennessee; he authored Federal Dean of the Law School. Wage and Hour Law in addition to writing on the subject for numer­ Moore & Peterson ous legal publications; he served as Award consultant to the United States Senate Subcommittee on Labor The Dallas law ftrm of Moore & Relations in 1950; and between Peterson has established an annual 1957 and 1960, he was an arbitra­ award for ftrst year law students at tor with the Federal Mediation and Duke Law School. The firm presently Conciliation Service, the American consists of 63 attorneys, several of Arbitration Association, and the whom are graduates of Duke Law Charles H. Livengood, jr. North Carolina Department of School. Moore & Peterson has Labor. established this award in recogni­ Livengood Scholarship Professor Livengood is well tion of the high quality of legal Endowment Fund remembered and highly regarded education at Duke Law School and at the Law School. Professor emeri­ in appreciation for the Duke law Dr. Charles H. Livengood, III, tus Francis Paschal remembers him students who have participated in recently established a scholarship as the finest seminar instructor at their summer program and/or joined endowment fund at the Law School the Law School. Professor John their ftrm as lawyers. Awards of $ 500 in memory of his parents "[b]ecause," Weistart, who was both a student each will be made to the three as he puts it, "of the great dedica­ and a colleague of Professor liven­ students who achieve the highest tion my father felt to the Law School, good, remembers his clarity and grade in each of the large sections and the mutually beneftcial rela­ precision in writing. Professor of ftrst year contracts, civil procedure tionship he shared with you for so Melvin Shimm remembers his ftne and property courses. A representative many years. . . . " In so doing, Dr. sense of humor. Now, his memory of Moore & Peterson will formally Livengood is continuing the gener­ will be kept alive at the Law School present the awards in the fall when ous tradition started by his mother, through his son's generosity in he or she is at the Law School Virginia Livengood. In 1984, fol- establishing this living memorial. interviewing. DUKE LAW MAGAZINE / 58 Alumni Activities

CLASS OF 1933 for the Medical Center of Delaware Rufus W Reynolds, Chief Bank­ in November 1986. ruptcy Judge for the Middle District john G. Poole, a senior member of North Carolina, allegedly retired of the Miami law flrm Papy, Poole, on October 1, 1986. He will be on Weissenborn & Papy, opened a Tampa recall status for six months to flnish offlce in June 1987. The flrm is con­ up some of his larger cases and to Sidering further expansion in Florida. assist during the transition period of his successor. Sam G. Winstead, jr: has been CLASS OF 1951 honored by the establishment of a Arnold B. McKinnon was named new merit scholarship for under­ Chairman and Chief Executive Officer graduates in the College of Arts of Norfolk Southern Corporation. He and Sciences at the University of was formerly Executive Vice Pres­ North Carolina. The scholarship ident of Marketing. was established by the Carl B. and Florence E. King Foundation of Dallas in honor of Winstead, who CLASS OF 1952 Lee H. Henkel, jr: was appointed received his undergraduate degree to the Federal Home Loan Bank Board from UNC, for his more than 30 by the President in November. The years of service as attorney for Carl John Beard '60 board regulates the nation's savings King and as a trustee of the King and loan industry. Foundation. CLASS OF 1960 john Q. Beard was elected a fel­ CLASS OF 1941 CLASS OF 1954 low of The American College of Warren C Stack became "of coun­ Paul Hardin III, President of Probate Counsel, an international sel" to the flrm of Tucker, Hicks, Drew UniverSity in Madison, New association of lawyers. Its purposes Moon, Hodge and Cranford in Char­ Jersey, received an honorary Doctor include improvement of the standards lotte, North Carolina in March 1987. of Laws degree from Adrian College of attorneys specializing in wills, Hervey S. Moore, jr. is returning in May 1987 for his contribution to trusts, estate planning and probate to private practice with the law flrm the fleld of law and in appreciation and the modernization of the admin­ of Mason, Griffm & Pierson, where of and respect for his leadership of istration of our tax and judicial he will serve of counsel. In Decem­ United Methodist higher education. systems in these areas. Membership ber 1986 he was honored for exem­ is by invitation of the Board of plary service on the bench, most Regents. recently as Presiding Judge of the CLASS OF 1956 C David Lundquist became Civil Part, Law Division, Mercer Carlyle C Ring, Vice President General Secretary (Chief Executive County, New Jersey. and General Counsel of Atlantic Re­ Offlcer) of the General Council on search Corporation, was appointed Ministries of the United Methodist CLASS OF 1946 a member of the Permanent Edi­ Church on August 1, 1986. The jeroll R. Silverberg became a torial Board for the Uniform Com­ General Council on Ministries is charter member of the American mercial Code. The Board has the the program coordination, evaluation chapter of the International Academy responsibility for mOnitoring cur­ and research agency for the entire of Matrimonial Lawyers in February rent developments, preparing offl­ United Methodist denomination. 1987. The IAML, founded in October cial comments interpreting the Code 1986 in London, is dedicated to en­ and making recommendations for CLASS OF 1962 couraging and facilitating dialogue updating the Code. The Board is Thomas W Graves, jr., former among matrimonial lawyers from composed of twelve members, six Executive Vice President of North different countries. appointed by the National Confer­ Carolina Citizens for Business and ence of Commissioners on Uni­ Industry, was named its President CLASS OF 1948 form State Laws and the other six and Staff Executive. Robert P Barnett was elected Vice­ appointed by the American Law Vincent L. Sgrosso was elected Chairman of the Board of Trustees Institute. Vice President and Associate General VOL. 5, NO.2 / 59

Counsel of the BellSouth Corpora­ CLASS OF 1966 tion, the Atlanta-based telecom­ jonathon T Howe, currently Pres­ munications holding company, in ident and founding senior partner March 1987. Sgrosso joined Southern of Howe & Hutton, Ltd., was selected Bell in 1968 as an attorney in the by the Illinois Institute for Contin­ company's Jacksonville, Florida uing Legal Education to serve on office and transferred to Atlanta in the faculty IICLE faculty members 1969. After being promoted to solic­ are law practitioners who have dem­ itor in 1972 and general attorney in onstrated expertise in their fields and 1976, Sgrosso was named general who volunteer their time to help solicitor of BellSouth in 1984. members of the bar stay abreast of legal developments and expand their CLASS OF 1963 knowledge of various areas of law Mark B. Edwards was named to practice. the Board of Governors of the North Eric Michaux, partner and Pres­ Carolina Bar Association June 20 ident of the Durham law firm of during the Annual Meeting of the Michaux and Michaux, was elected Association in Asheville, NC His Chairman of the Board of Law term will expire in June 1990. Examiners for North Carolina. Eric Michaux '66 A partner in the Charlotte firm of Weinstein & Sturges, his primary CLASS OF 1967 Parker, Harrison, Dietz & Getzen is areas of practice include business john T Berteau, a partner in the author of: Steps To Avoid Beneficiary law, tax law and estate planning. Sarasota, Florida law fIrm of Williams, Conflicts Over Bequest of Tangible

CLASS OF 1964 Patrick H. Bowen was elected a Vice President of Allied Stores Cor­ poration in March 1987 and Secretary Law Firm News of the Company in April 1987. Also appointed General Counsel, Bowen In one of the largest law fIfill the history of North Carolina, has assumed responsibility for the mergers ever, two major Virginia creating a new firm of 108 lawyers. Legal Department. firms combined forces in January Powe, Porter and Alphin of ]. Robert Elster was named to 1987. McGuire, Woods & Battle, Durham and Raleigh and Moore, the Board of Governors of the North based in Richmond, and Boothe, Van Allen & Thigpen of Charlotte Carolina Bar Association on June 20 Prichard & Dudley, based in North­ and Raleigh merged in October during the Association's Annual ern Virginia, have formed a new 1986 to become Moore and Van Meeting in Asheville, NC His term firm of approximately 300 law­ Allen. will expire in June 1990. yers, one of the nation's largest Six attorneys of Powe, Porter A partner in the Winston-Salem law fIrillS and the largest group and Alphin are Duke Law School office of Petree Stockton & Robinson, of lawyers in the state practicing graduates: Charles R. Holton, '73; Elster's primary areas of practice in one firm. The new firm, named Nick A. Ciompi, '73; Nancy Russell include civil litigation, and commer­ McGuire, Woods, Battle & Boothe, Shaw, '73; A. Margie Happel, '78; cial and professional malpractice has seven offices in Virginia and Laura Jean Guy Long, '72; and defense work. one in Washington, nc Paul M. Green, '85. john Leech, a partner in the Six attorneys of McGuire, Five attorneys of Moore, Van Cleveland law firm of Calfee, Halter Woods, Battle & Boothe are Duke Allen, Allen & Thigpen are Duke & Griswold, was elected Chairman Law School graduates: Robert L. Law School graduates: C Wells of the Board of Trustees of the Burrus,Jr., '58; E. Duncan Getchell, Hall, III, '73; Kenneth S. Coe, '76; Health Trustee Institute. The Institute Jr., '74; John W. Patterson, '72; 0. Donald S. Ingraham, '82; Richard was funded by the Cleveland Founda­ Randolph Rollins, '68; Joseph L.S. Wilson Evans, '82; and Jean Ann tion to work with hospital adminis­ St. Amant, '74; Robert Richardson Gordon Carter, '76. trators to help improve the effec­ Vieth, '84. The new firm will maintain tiveness of hospital governance. offices in all three cities-Durham, Robert Montgomery has accepted There's a Duke connection Raleigh and Charlotte-with 59 President Brodie's invitation to be­ between two law fIfills which lawyers in Charlotte and 49 in come Chairman of the Law School took part in the largest merger in the Research Triangle area. Board of Visitors for a term beginning on January 1, 1988. DUKE LAW MAGAZINE / 60

Personal Property, 12 JEst.Plan. stitution. Donoghue also serves on joan Cooney, in private practice 356-61 (1985). the executive committee of the in New York, is Director of the Lanty L. Smith was elected to Princess Grace Foundation-USA, a Juvenile Law Education Project, serve on the 27-member board of national organization supporting Legal Air Society in Queens, New First Union Corporation in April young artists in theater, dance and York. She was recently appointed 1987. Smith has served as President fllm. He was a co-founder and Presi­ to Governor Cuomo's Juvenile Jus­ and a member of the Board of dent of Philadelphia Volunteer Law­ tice Advisory Group, which advises Greensboro, North Carolina-based yers for the Arts and was Co-chair the governor on juvenile justice Burlington Industries, Inc. since of the Board of the International legislation and programs. October 1986. Visitors Center of Philadelphia. L. Alan Goldsberry recently left CLASS OF 1968 private practice to accept an appoint­ Carl F. Bianchi was selected as ment by Ohio Governor Celeste as one of the recipients of the 1987 Athens County Common Pleas Court National Public Service Awards, Judge. He will face election in the sponsored annually by the American fall of 1988. Society for Public Administration and the National Academy of Public Administration. Bianchi, administra­ tive director of the courts in the State of Idaho since 1973, has been instrumental in establishing a judi­ cial system that is a model for the country in its simplified court struc­ ture, administrative organization, business-like management and expe­ ditious disposition of cases.

CLASS OF 1969 Christine M. Durham '71 Norman E. Donoghue, a partner in the law flrm of Dechert Price & Christine M. Durham, Associate Rhoads, is Vice-Chairman of the Justice for the Utah Supreme Court, Board of Directors of We the People recently received an award for dis­ 200 Inc. We the People 200 Inc. tinguished and sustained achievement is a not-for-proflt corporation estab­ from Wellesley College, of which lished to administer the City of Phila­ Hal C. Hedrick, fr. '70 she is also an alumna. Appointed in delphia's national celebration of the 1982 she was Utah's flrst female 200th anniversary of the U.S. Con- CLASS OF 1970 district court judge and is now that Hal C. Hedrick, jr. was promoted state's flrst female supreme court to corporate secretary of the LTV justice. Corporation in Dallas in April 1987. Karla H. Fox, associate professor He will be responsible for board of of business environment and policy director activities, Securities and at the University of Connecticut, Exchange Commission filings, cor­ recently co-authored a textbook­ porate bylaws, stock transfers and The Legal Environment of Business. other secretarial functions of the The 626-page volume provokes corporation and its operating sub­ students to ponder moral dimen­ sidiaries. Hedrick joined LTV as a sions applied to modern cases. corporate attorney in 1979. Randolph J May has joined the Kenton L. Kuehnle became a Washington, D.c. law flrm of Bishop, partner in the Columbus law flrm Liberman, Cook, Purcell & Reynolds of Thompson, Hine & Flory in as a partner. He is head of the com­ Ohio. munications law department. M. john Sterba, jr. of New York CLASS OF 1971 City became chair of the 92O-member Sylvia L. Beckey is now Special Corporate Counsel Section of the Counsel in the New York regional New York State Bar Association in offlce of the U.S. Securities & Ex­ January 1987. In 1986 he served as L. Alan Goldsberry '69 change Commission. chair-elect of the section. VOL. 5, NO.2 161

CLASS OF 1972 CLASS OF 1977 of the Choral Arts Society of Wash­ Hugh M. Dorsey, III was awarded Carolyn B. Kuhl, formerly Deputy ington, D.C an honorary degree by Savannah Col­ Solicitor General of the United States Linda A. Malone, assistant pro­ lege of Art and Design, where he is and Deputy Assistant Attorney Gen­ fessor of law at the University of Chairman of the Board of Trustees. eral, Civil Division, U.S. Department Arkansas Law School, is author of: of Justice, rejoined the Los Angeles The Future of Transferable Develop­ CLASS OF 1973 law fIrm of Munger, Tolles & Olson ment Rights in the Supreme Court, Daniel T Blue, jr:, managing as a partner in September 1986. 73 Ky.L.]. 759-93 (1984-85) and A partner with the law firm of Thigpen, Geoffrey H. Simmons has been Historical Essay on the Conserva­ Blue, Stephens & Felders in Raleigh, named the recipient of the 1987 tion Provisions of the 1985 Bill, 34 was elected to the membership of Pro Bono Service Award by the U.Kan.L.Rev. 577-97 (1986). The American Law Institute, Phila­ North Carolina Bar Association. delphia at its last meeting. Blue, a The award was presented June 18 math major at North Carolina Cen­ during the Association's Annual tral University, also gave the fIfth Meeting in Asheville, NC The award annual Marjorie Lee Browne Dis­ was established to recognize North tinguished Alumni Lecture to math Carolina attorneys who have shown and computer students at North outstanding commitment to serving Carolina Central in November 1986. the legal needs of the poor and dis­ advantaged by providing pro bono CLASS OF 1974 services. Ellie G. Harris recently received her Ph.D. in fmance from North­ western University. She is currently CLASS OF 1978 assistant professor of fmance at the Deborah Bauser became a partner School of Business in Indiana Uni­ in the law firm of Shaw, Pittman, Potts versity in Bloomington, Indiana. & Trowbridge in Washington, D.C Her research involves applications William B. Bunn, who received of game theory to topics in corpo­ an M.D. in addition to a].D. at Duke, rate finance and, particularly, to recently accepted the position of Samuel Mason '78 issues related to corporate takeovers. Director of Occupational Health and L. Lynn Hogue was appointed Environmental Affairs for Bristol­ Samuel Mason recently became associate dean of the College of Myers Company, Pharmaceutical a partner in the Philadelphia law Law at Georgia State University. Research and Development Division. fIrm of Montgomery, McCracken, Thomas E. Mclain, who special­ He also accepted an appointment at Walker & Rhoads, practicing in the izes in Japanese business and legal Yale University School of Medicine fIrm's Corporate Department. affairs, was appointed by The Balcor and will be teaching in the Depart­ Company to expand its institutional ments of Epidemiology and Internal CLASS OF 1979 asset management business over­ Medicine. jeffrey c. Coyne became a partner seas, with an initial focus on the Michael jenkins, was appointed of Graham & James in Los Angeles. Far East. Mclain was named a First to the Executive Committee of the His primary emphasis is in the areas Vice President for Institutional and Alumni Association of Haverford of bankruptcy and insolvency. International Business Develop­ College in Pennsylvania, from which Robert T Harper became a part­ ment. Balcor, a unit of American he graduated in 1975. Jenkins is a ner in the Pittsburgh law fIrm of Express Company, is an investment partner in the Los Angeles law fIrm Berkman, Ruslander, Pohl, Lieber & management fIrm with businesses of Richards, Watson & Gershon, Engel in January 1987. based in real estate, lending and where his principal areas of prac­ Edward W Kallal, jr: became a related industries. Mclain was a tice include municipal law, land use partner in the Atlanta law fIrm of partner in the Los Angeles law fIrm and environmental regulation and Sutherland, Asbill & Brennan. of Manatt, Phelps, Rothenberg & civil rights litigation. Steven K. Robison became a part­ Phillips, where he is currently of Gregory S. Lewis became a partner ner in the law fIrm of Montgomery, counsel. with the law fIrm of Morgan, Lewis Elsner and Pardieck in Seymour, & Bockius in its Washington, D.C Indiana in December 1986. CLASS OF 1976 offIce. Lewis is a member of the Arthur]. Minds is Vice President fIrm's Labor Section. In addition to CLASS OF 1980 of National Operations for the Los co-authoring numerous articles on Blain B. Butner was elected Angeles-based Murdock Manage­ labor law issues, Lewis is Director Treasurer of the Younger Lawyers ment Company, which develops of the Society for Education in the Division of the Federal Bar Associa­ and manages commercial real estate. Performing Arts and past President tion for 1987. DUKE LAW MAGAZINE 162 Philadelphia Area Law Alumni On May 9,1987, a group of Phila­ delphia area Duke Law School alumni successfully defended its champion­ ship in the annual Philadelphia Bar Association Young Lawyers Charity Softball Tournament. Gary Biehn (,84-White and Williarns),Jon Drake (,84-Dechert Price & Rhoads), Jerry Novick ('84-Wolf, Block, Schorr & Solis-Cohen), George McFarland ('84-Saul, Ewing, Remick & Saul), Brian Cary ('85-Skadden, Arps, Slate, Meagher & Flom), Steve Scolari (,84-Stradley, Ronon, Stevens & Young), Tucker Boynton ('79- Stradley, et al.), and Dave Lockwood ('84-Stradley, et al.) were Duke Law Alumni on the team. George Brunner (Villanova '87) and Fred Levin (Villanova '86-Stradley, et al.) completed the team as honor­ ary Duke Law Alumni by virtue of their participation on the Duke Law Alumni Champion Team in the 1986 Tournament. The Philadelphia Bar Association has challenged the Duke team to defend its champion- ship in 1988.

Shirley L. Fulton, a prosecutor Lori E. Terens became a partner the private law firm of Funk, Franta since 1982, was recently appointed in the firm of Ulmer, Murchison, & Hauge and serving as attorney for to a Mecklenburg County District Ashby, Taylor & Corrigan, Jacksonville, the State House of Representatives. Court judgeship by North Carolina Florida in February 1987. Cecily Hines recently returned Governor James Martin. Priscilla P wt>aver became a to the practice of law as an in-house justin G. Klimko was elected a partner in the Chicago law firm of attorney at ADC Telecommunications, shareholder of the law firm of Butzel Mayer, Brown & Platt inJanuary 1987. Inc. in Minneapolis. Long Gust Klein & Van Zile, one of Lisa T Witlin received her M.D. Donald J Rendall, jr., formerly Michigan's largest law firms. He is a from Johns Hopkins Medical School Assistant U.S. Attorney for the District member of the State Bar of Michi­ in May and plans to do medical mal­ of Vermont, became an associate of gan Corporation, Finance and Busi­ practice law. Witlin recently won the the law firm of Sheehey, Brue, Gray ness Law Section, the Detroit Bar Schwartz Award for a research paper & Furlong, Burlington, Vermont in Association Securities and Com­ which she entered in a competition February 1987. modities Law Committee and the sponsored by the American College of Robert A. Useted became a partner American Bar Association Section Legal Medicine. in the St. Louis firm of Kohn, Shands, on Corporation, Banking and Busi­ Elbert, Gianoulakis & Giljum in ness Law. February 1987. W Alan Lautanen became a CLASS OF 1981 partner in the San Diego law firm Richard A. Hauge was appointed CLASS OF 1982 of Gray, Cary, Ames & Frye in County Attorney in New Castle Peter A. Cotorceanu recently January 1987. County, Delaware in January 1987. joined the Annapolis law firm of Edward J Schneidman became He served as First Assistant County Ronald R. Holden to specialize in a partner in the Chicago law firm Attorney for the eighteen months estate planning. of Mayer, Brown & Platt in January prior to this appointment. His past Fern E. Gunn was elected Vice­ 1987. experience includes four years in President of the North Carolina VOL. 5, NO.2 / 63

Association of Women Attorneys in jeffrey D. Hutchings is now an Neil D. McFeeley is author of January 1987. She is presently em­ associate with the law flrm of Shaw, Appointment ofjudges: The johnson ployed as a staff attorney and Exec­ Pittman, Potts & Trowbridge in Presidency, the flrst in-depth study utive Director of the North Carolina Washington, D.C. of the judicial selection process in Board of Legal Specialization of the the Johnson years and one of the North Carolina State Bar. CLASS OF 1984 few books that has analyzed any in­ Paul Russell Hardin recently Sol W Bernstein is now an asso­ dividual president's process. McFeeley left the Atlanta law flrm of King & ciate with Sidley & Austin in New is an attorney at the law flrm of Spalding to join the Sports Enter­ York City. Eberle, Berlin, Kading, Turnbow & prises Division of the Robinson­ Audrey McKibbin Moran is now Gillespie in Boise, Idaho. Humphrey Company in Atlanta. with the State Attorney's OffIce, the David A. Trott is a member of julian E. Whitehurst became a Fourth Judicial Circuit of Florida, the law flrm, Trott and Trott in member of the Orlando, Florida law Duval County Courthouse in Jack­ Bloomfleld Hills, Michigan. flrm of Lowndes, Drosdick, Doster, sonville, Florida. Kantor & Reed in February 1987. Floyd B. McKissick, jr: is now CLASS OF 1986 james F. Wyatt, III has begun his with the law flrm of Faison, Brown, Gwynn T Swinson, who received own law practice, specializing in crim­ Fletcher & Brough in Durham, North her LLM in December of 1986, was inal and civil cases, in Charlotte, North Carolina. recently promoted to Associate Dean Carolina. for Student Affairs and Admissions CLASS OF 1985 at Duke Law School. Dean Swinson CLASS OF 1983 Harry P Brody is author of Fields, came to the Law School as Assistant Mark S. Calvert is now Associate a book of poetry, published by Ion Dean for Admissions inJanuary 1984 General Counsel at Carolina Power Books in Memphis, Tennessee. Brody and became Assistant Dean for Stu­ & Light Company in Raleigh, North is with the law flrm of Caudle & dent Affairs and Admissions in August Carolina. Spears in Charlotte, North Carolina. 1985.

Personal Notes

, 73-Michael Stewart and his wife -L. jean Swofford married New York City. Kaelin is an asso­ announce the birth of their daughter, Marc S. Firestone on May 23, 1987. ciate in the New York law flrm of Lindsey Lauren, on August 29, 1986. Swofford is an associate at the law Healy & Baillie. flrm of Arnold & Porter in Wash­ -Marc Leaf and Mary Wood­ ington, bridge '85 announce the birth of '74-john P Bailly, jr: married nc. their son, John Sarkin, on February Lee Ann Lounsbury on March 29, 23, 1987. 1987. Jack is Assistant Counsel at -Laura Stuart married Tim­ ,83 -George C. McFarland, jr: was the New York State Department of othy B. Taylor on April 4, 1987. married to Elizabeth Lawrie Kennedy Social Services in Albany, New York. Laura is now in the San Diego on October 1l, 1986 in Pennsylvania. offIce of Sheppard, Mullin, Richter George is an associate in the Phila­ & Hampton. -Amy Tenney Levere and her delphia flrm of Saul, Ewing, Remick '77 -Nora M. jordan and WAllen husband are happy to announce the & Saul. Reiser, both class of 1983, were birth of their son, Michael Benjamin -Nancy E. Scott was married to married in November 1986. Both Levere, on December 4, 1986. David Paul Henderson on February are associates in the New York law 15, 1986. flrm of Davis, Polk & Wardwell. -Richard Zietz and his wife, 'SO-Blain B. Butner and his -Serena G. Simons married Fred Jenny, announce the birth of their wife, Peggy, announce the birth of Barbash on April 25, 1987 in Wolshing­ flrst child-a daughter-in January their fIrst child-a daughter, Sarah ton, Simons is an associate at nc. 1987. Thiel Butner-on January 14, 1987. Miller & Chevalier in Wolshington, nc.

'82-Paul Russell Hardin married '84-Doug Cannon and his wife, ,85 -Siobhan T 0 'Duffy and Melanie Wilson Hardy in February Kristin, announce the birth of their Pressley McAuley Millen, Ill, both 1987 in Kingston, North Carolina. daughter, Mary Anne, on December class of 1985, were married in Sep­ Hardin recently joined the sports 17, 1986. tember 1986. Siobhan is an asso­ enterprises division of the Robinson­ -Michael P Kaelin married Carol ciate with Gould & Wilkie. Pressley Humphrey Company in Atlanta. Gruendel on October 25, 1986 in is with Sullivan & Cromwell. DUKE LAW MAGAZINE 164

-Mary Woodbridge and Marc is recuperating nicely from her serious -Susan Gwin married David Leaf '84 announce the birth of their accident last summer in Colorado Ruch on March 14, 1987 in Atlanta, son, John Sarkin, on February 23, and recently began full-time practice Georgia. 1987. .at the law firm of Smith, Helms, -Alice F Higdon and Harlan I. Mulliss & Moore in Charlotte, North Prater; IV, both class of 1987, were Carolina. She reports, ''I'm so appre­ married on May 30, 1987 in Quincy, '86-Richard S. Boulden married ciative of all the communication I Florida. Deborah Anne Goodwin on Decem­ have received from friends at Duke." -Emily Oates and Alan Wing­ ber 27, 1986 in Duke Chapel. field, both class of 1987, were married -Elizabeth A. Johnson and Mark on May 16. Daryl Gustafson, both class of 1986, '87 -David Berger married Susan -Marion A. Schreiber married were married on April 11, 1987. Holderman on March 8, 1987 in Donald Franklin May, II on February -Elizabeth McColl Quattlebaum Greensboro, North Carolina. 28, 1987 in Bethesda, Maryland.

Service Agency and President of Obituaries the Community Council. Rice was also a founding member of the CLASS OF 1930 Knollwood Baptist Church. Emerson T. "Curly" Sanders, a Leon Rice served as the fiftieth longtime Burlington attorney and reunion coordinator for the Classes former North Carolina state senator, of 1936-37 at Duke Law School in died April 1987 in Alamance Memorial September 1986 and spearheaded Hospital. Sanders was assistant coach the effort to establish the Law and of football, boxing and wrestling at Contemporary Problems endow­ Duke University for four years before ment fund. In recognition of the moving to Burlington in 1935. He energy and creativity he devoted to was a member of the North Carolina this role, he received the Charles A. State Bar Association, the American Dukes Alumni Achievement Award Bar Association and a member and Leon T. Rice '36 for 1986-87. former president of the Alamance County Bar Association. He prac­ edged by his peers as among the CLASS OF 1942 ticed law for more than 50 years first and best tax lawyers in the Kenneth J Arwe died on May 5, before retiring in 1982. state. A South Carolina native, Rice 1987 in Keene, New Hampshire. A graduated from Furman University partner in the Keene law firm of CLASS OF 1934 and then attended Duke Law School Goodnow, Arwe, Ayer, Prigge & R. Wallace Maxwell died Novem­ on a full tuition scholarship. Wrigley, Arwe served as Keene's ber 25, 1986 after an illness in "Waynes­ Rice always credited a favorite city attorney for several years. He burg, Pennsylvania. A prominent law professor at Duke, Charles L.B. was also a member of the Keene Greene County attorney, Maxwell Lowndes, with influencing him to Planning Board. Active in community was senior member of the Maxwell choose tax law. After graduation activities, Arwe helped to form the and Davis law firm. He was one of from Duke, he practiced in the Community Chest, forerunner to the the oldest members of the Greene Office of Chief Counsel of the IRS Monadnock United Way, and was a County Bar Association in terms of in Washington, D.c. before joining member of its Board of Directors; length of service and a member of the firm which would become was a trustee and Chairman of the the Pennsylvania Bar Association. Womble Carlyle Sandridge & Rice Keene Unitarian Universalist Church; From 1949 to 1952 and, subsequently, in Winston-Salem. The firm, which was Chairman of the Board of the from 1975 to 1977, he served as is over 100 years old, now ranks Salvation Army; and President of mayor of Waynesburg. He was also among the 200 largest law firms in the Keene Lions Club. active in community and church the country. Rice had semi-retired affairs. this fall after completing his fiftieth CLASS OF 1949 year as an attorney. Robert G. Welton died on October CLASS OF 1936 Rice devoted himself to public 21, 1986 in Houston, Texas. Leon T. Rice, the last living name service in Winston-Salem. He was partner in the law firm of Womble on the Board of Trustees of Wake CLASS OF 1953 Carlyle Sandridge & Rice, died on Forest University, was Chapter Chair­ Richard C. Thompson died at his April 26, 1987 in Winston-Salem, man of the American Red Cross, home on September 20, 1986. He North Carolina. Rice was acknowl- President of the Family and Child is buried in Hickory, North Carolina. VOL. 5, NO.2 I 65

Duke University• School of Law Durham, North Carolina 27706

Alumni Affoirs Telephone (919) 489-5089 Annual Fund 489-5096 Public Relations

Dear Fellow Duke Law Alumni:

We are all proud to know that Duke Law School ranks among the top law schools in the nation academically. We can also take pride in the fact that Duke Law alumni are supportive of their school. For the past several years over forty percent of our alumni have pledged to the Law School Annual Fund Campaign, which means that our partiCipation rate has doubled since 1980. Few law schools boast a higher participation rate. (Though it would be nice to surpass Yale, or even our neighbor to the west, Wake Forest, where over fifty percent of the alumni annually contribute to the school.) Though the size of the average gift contributed by alumni has also increased over time, we cannot continue to rely on large gifts from only a small group of alumni. We need the assistance of each of you to help increase the annual contribution to the Law School through the Annual Fund.

The 1987-88 Annual Fund Campaign runs from July 1, 1987 through June 30, 1988. Gifts to the Duke Law School Annual Fund undergird the school's operating budget providing for needs that endowment funds, often designated for specific purposes, do not address and that tuition revenues fall short of covering. These funds may be used to provide additional fmancial aid to current students, to supplement faculty salaries, and to purchase library resources.

I urge you to give careful thought to your contribution. Take advantage of matching gifts if you work for a firm or company with a matching gift program. Join a leadership gift club or move to a higher gift club level. Let's send a message to the faculty and administration that we appreciate all they are doing to keep our law school at the forefront nationally and that we want to do our part to ensure that Duke Law School can continue to provide one of the fillest legal education programs in the country.

Your gift does make a difference. Please join me in generously supporting the Duke Law School Annual Fund Campaign when you are called by a current student during the telethon or asked to participate by your class agent.

Sincerely,

Donald B. Craven '67 Chairman Duke Law School Annual Fund DUKE LAW MAGAZINE / 66

As reported in the article on the Duke Bar Association, one constant at Duke Law School is the fact that law students enjoy socializing, and when they get together; they will poke Jun at just about every aspect oj law school life as this collection oj songs Jrom across the years shows.

To the tune of "The Daring Young Man on the Flying Trapeze"

We've sung to the men on the flying trapeze (CHORUS) So let's sing to others more daring than these When an ambulance passes we'll be in its wake We'll sing to our shysters with collitch degrees Fat fees from thin plaintiffs we'll joyfully take All in the name of the law. And evade every law legislatures can make We've learned how to go on a bender All in the name of the law. And rise the next morning for class On every important occasion To exploit the feminine gender We'll mouth a few broad platitudes And sleep through our courses yet pass. With politics we'll keep liason CHORUS: And keep Baptist attitudes. He went through law school with the greatest of ease (CHORUS) The smiling young man who is now after fees His acts will be led by judicial decrees, We'll take every case to lose it or win All in the name of the law. We'll defend the bootlegger who brings us our gin We'll even defend the original sin Insomnia has kept us awake while in class All in the name of the law. Our profs have all fed us on hot air and gas Then crammed us exams they expect us to pass So fill up your glasses with whiskey All in the name of the law. Swiggle a little more corn We'll get you well soused in the evening Three years we have been cross-examined And then plead your case in the morn. Three years we have been on the spot But now we are out with a vengeance (CHORUS) To show the whole world what we've got. We'll easily tell what each flaw is (CHORUS) In every judicial decree If we don't quite know what the law is We'll drift through our cases with the greatest of grease We can all tell you what it should be. And panic the juries with soft soap stories Charge widows and orphans extortionate fees And for the House or the Senate we will run All in the name of the law. While justice is blind we can still have our fun For we've all found out what strange things still We'll make all the bar exams harder are done To keep future shysters at bay All in the name of the law. And keep them from sharing the larder That we will rake in every day. (CHORUS) From Carmon Stuart, '38

My Favorite Things

Securities reg. and corporate taxation, When the firms come, Oil and gas, interviews on vacation, And reject me, Tubes in my mailbox, And I'm feeling sad, and then real estate, I simply remember I'm not a first year, These are a few of the things that I hate. And then I don't feel so bad. Fed. tax in the morning and then antitrust, See all my dreams for success turn to dust. Second year stinks. Song from "Yankee Doodle Dukie," There's no debate. Musical finale of FLAW Day ]987 These are just some of the things that I hate. by joel Bell, Class of '87

If you have a favorite poem, song or skit from law school days, please send a copy to the Law Alumni Office so that they can be enjoyed by others at Class Reunions and other appropriate occasions. VOL. 5, NO.2 I 67

Agenda Law Alumni Weekend, September 11-12, 1987

Friday, September 11, 1987 Reunion Coordinators 2 :00 p.m. Registration Desk Opens. Joint 1941, 1942 & 1943: Ralph Lamberson Lobby, Law School (804) 253-2377 2 :00 p.m. Meeting of Law Alumni Council. 1947: Henry A. McKinnon, Jr. Moot Courtroom, Law School (919) 739-6446 6:00 p.m. Reunion Class Cocktails and Dinners. 1952: Fred Folger, Jr. Sheraton University Center (919) 786-6541 1957: Gerald Bard Tjoflat Saturday, September 12, 1987 (904) 791-3416 9:00 a.m. Coffee and Danish. 1962: Vincent L. Sgrosso Second Floor Lounge, Law School (404) 529-8231 10:00 a.m. Professional Program. 1967: Wayne A. Rich, Jr. Moot Courtroom, Law School (304) 345-2200 12:00 p.m. Pig Pickin' catered 1972: Jeff Portnoy by Bullock's Barbecue. (808) 521-9221 Gross Chern Lawn & Portico Ronald L. Reisner 2 :00 p.m. Rediscover Duke and Environs (201) 229-6700 (free time) 1977: Donald M. Etheridge 5:30 p.m. Tail Gate Party. (919) 684-3955 7:00 p.m. Duke vs. Northwestern 1982: David Chenkin Football Game. (212) 223-0400 Wallace Wade Stadium Bernard H. Friedman (206) 223-1313 Sunday, September 13, 1987 9:00 a.m. Breakfast at the Sheraton University Center for Barristers attending the weekend festivities: 10: 30 a. m . Meeting of the National Council of the • Barristers of me Law School are alumnilae and friends who contribute SI,OOO or more annually to Duke Law School. Contributors of $500 or Law School Fund at the Sheraton more annually are Barristers if mey are seventy years of age or older; University Center. judges, teachers, government officials or graduates of less than seven years.

Members of the Class of 1951, along with their spouses and Mel Shimm, enjoyed their reunion get-together last September. fJtst 12ublished Encyclopedia OF THE American Constitution LEONARD W. LEVY, editor-in-chief KENNETH L. KARST, associate editor DENNIS J. MAHONEY, assistant editor

New from Macmillan-the first reference The Encyclopedia has just been published. It's available for a source devoted entirely to the Constitution limited time at the special prepublication price of $270.00 the set (plus $6/set for shipping and handling). But this offer ends -from its origins to today's most December31, 1986. ACT NOW AND SAVE $50 off the regu­ controversial Supreme Court cases. lar price of $320. 00. Send for complete ordering information and a full prospectus by filling out and returning the coupon below. Here in four magnificent volumes is everyone's guide to the Constitution. With 2,200 original articles by leading authorities, the Encyclopedia of the American Constitution covers virtually every aspect of our most important document-from the ENCYCLOPEDIA OF debates of the framers to its shaping force on American political THE AMERICAN CONSTITUTION: life, from basic concepts to landmark court cases. • 2,200 original articles Written in nonspecialist language the articles examine a wide • 262 distinguished contributors range of topics: the origins and evolution of the Constitution and • Full cross-references and blind entries for ease of use constitutional laws ... the political conflicts and compromises that have shaped the course of the Constitution, from the Whis­ • Bibliographies for further research throughout key Rebellion to Watergate ... fundamental concepts such as • Indexes of cases, names, and subjects "Clear and Present Danger" and "Freedom of the Press" -and • Glossary the stories behind them ... biographies of every Supreme Court • Guide to legal citations Justice, Presidents, philosophers, politicians, and others who • Set in easy to read type have affected the Constitution ... and hundreds of key Supreme • Handsomely printed, durably bound Court decisions. And so much more, in articles from Abortion and the Consti­ tution and Affirmative Action, to War Powers and Wiretapping. Coverage is broad and interdisciplinary. In the Encyclopedia, MACMILLAN PUBLISHING COMPANY the Constitution is treated not only as a legal and political docu­ 866 THIRD AVENUE' NEW YORK, NY 10022 Or call: 11(212) 702-4282 ment, but also as a living legacy. Among the 262 :contributors are the best known scholars in America-historians, economists, political scientists, legal r ------,Mail to: scholars, judges, attorneys, public officials, and others, includ­ I MACMILLAN PUBLISHING COMPANY I ing many Pulitzer Prize winners. Here is Arthur Schlesinger, 866 Third Avenue' N. Y., N. Y. 10022· Attn: Karen Staubi Jr., on Franklin Roosevelt. John Hope Franklin on Slavery. C. I Yes! Send me full details on the new ENCYCLOPEDIA OF I Vann Woodward on The First Amendment. Anthony Lewis on I THE AMERICAN CONSTITUTION. I Earl Warren. Plus such distinguished constitutional scholars as Charles Black, Benno C. Schmidt, Paul Freund, and editor-in­ I Name/Office I chief Leonard W. Levy. I SchooVinstitution I For high school and college students ... teachers, scholars, I I researchers, judges, attorneys, public officials ... for every citi­ Address zen .. . the Encyclopedia ofthe American Constitution is a perfect I I way to celebrate the Bicentennial of the Constitution. And a ref­ LI ______City/State/Zip ~I erence work destined to serve as a central source of facts and S ideas for many years to come. CHANGE OF ADDRESS

N~e ______Cl~sof ______Firm/Position ______Businessaddress ______Businessphone ______Homeaddress ______Homephone ______

Return to Law School Alumni Office.

PLACEMENT OFFICE Anticipated opening for third D, second D, and/or first D year law students, or experienced attorney 0 Date position(s) available ______

Employer's n~e and address ______

Person to con~ct ______Requirements/corrunents ______o I would be willing to serve ~ a resource or con~ct person in my area for law school students.

Submitted by: ______Cl~s of ______

Return to the Law School Placement Office.

ALUMNI NEWS The Duke Law Magazine invites alumni to write to the Alumni Office with news of interest such as a change of status within a firm, a change of asSOCiation, or selection to a position of leadership in the community or in a professional organization. Please also use this form for news for the Personal Notes section. Name ______Classof ______Adilless ______Phone ______

News orcorrunen~ ______

Return to Law School Alumni Office. Duke Law Magaz ine NON-PROFIT ORG. Duke University School of Law u.s. POSTAGE Durham, NC 27706 PAID OURHAM, NC Address Correction Requested PERMIT No. 60