VOLUME 4

Contents 2 Editor's Column / On the Cover 3 Faculty Abroad 4 Constitutional Change: Reflections on the American Experience / Walter Dellinger 10 American German Tax Law Symposium in Heidelberg 11 A Constitutional Review of the American Income Tax / William Van Alstyne 19 Case Law Substitutes for Constitutional Structures in Computing Taxable Income in the United States / Richard Schmalbeck 25 DukeinDenmark 27 Faculty Travellers: Summer 1985 30 Book Review / Ethnic Groups in Conflict by Donald 1. Horowitz 35 International Relations 36 The Program for International Students 37 The Special Comparative and International Legal Studies Program 38 Commonwealth Countries 44 Europe

DEAN EDITOR SENIOR REPORTERS STAFF Paul D. Carrington Joyce Rutledge Suzanne Bryant Anne Wilkinson Jennifer Carson Alice Higdon PhylliS Redic Julie Woessner Lisa Grogan Julie O'Brien Susan Gwin Susan Weaver NUMBERl

50 Book Review / Claire Germain's Guide to French Legal Materials by Wallace Baker 54 Far East 67 Book Review / Bureaucratic Reform in Nineteenth-Century China by Jonathan Ocko 68 Africa and Middle East 73 South and CentralAmerica 75 The Docket 76 Alumnus Profile 77 Specially Noted

80 Agenda} Law Alumni Week~ September 26-27, 1986

Duke Law Magazine is published under the auspices of the Office of the Dean, Duke Universit)\ School of Law, Durham, North Carolina 27706 © Duke University 1986

BUSINESS MANAGER lYPOGRAPHY/PRODUCTIONIDESIGN COVER PHOTOGRAPH Mary Jane Flowers Marathon Typography Service Chip Henderson DUKE LAW MAGAZINE / 2

Editors~ Column

The Law School at Duke has Because the Law School is relatively Public Law conducted by Percy from its inception served as a small and maintains a close sense of Luney in association with Japanese national institution. In recent years, community, there is a great deal of legal scholars. Several members of it has grown to be an important interaction between its international the Duke Law faculty have taught in international institution as well. The students and its American students. China, including three in 1985; contours of this development are Thus, the School affords a superior another has taught in India, yet more generally described in this opportunity for Asian students and another in Singapore. In addition, in issue. This growth is especially students with Asian interests to share 1985-86, five Duke Law students are notable with respect to the School's a common intellectual enterprise. In studying in China for the year under ties to the continent of Asia. recent years, four professors from the auspices of the School. These Relative to its size, Duke now Asian universities have been in resi­ developments are also reported in enrolls more students from Asia dence at Duke for all or part of the this issue. Instruction in Chinese than any American law school. Duke academic year: one from China, one and Japanese languages is available has developed a close relation with from Korea, and two from Japan. at Duke. a number of institutions in the By reason of the interests and The Duke China Law Fund is a People's Republic of China and is activities of the faculty, the curric­ loose association of scholars and playing a significant role in helping ulum of the Law School has evolved practicing lawyers interested in the that nation redevelop its legal system in recent years to include a number development of the legal system and and legal profession. Ten students of offerings of special interest to the legal profession of China. It from China are enrolled in the persons having an interest in legal enlists the support of American law School in 1985-86; all but one of the developments in Asia. Donald firms, international businesses, foun­ ten is studying for theJD. In addi­ Horowitz, a leading expert on ethnic dations, and government agencies tion, there are five students from the conflict, regularly offers a seminar having interests in China. It also Republic of Korea (3 J.o.'s and 2 on the law of ethnic group conflict; sponsors an annual study trip to U~.M:s), three from Taiwan (2 SJ.o.'s a significant portion of the material China to examine the interaction of and 1 LL.M.), three from Japan (2 studied is Asian. For the last six law and economic development in LL.M.'s and 1 M.L.S.), one from India years, Jonathan Ocko has offered a that country, and to interview Chi­ 0.0.), and one from the Phillipines course in the Chinese Legal Tradi­ nese applicants to Duke. 0.0.). Malaysia was also represented tion. Recently, the School has also in the student body in 1984-85. been offering a course in Japanese

On the Cover

The cover depicts a hand-woven African tapestry recently given to the School by Ralph Lamberson, LL.B. '42. Now hanging in redecorated Room 214, the weaving was designed by Afro Studio and executed by Eliza­ beth '[<;holo. It comes from Phuthadit­ jhaba in Qwa Qwa. Lamberson, formerly of New York City and now living in Williams­ burg, Virginia, has given the Law School a number of works of fine art in the past several years. A print by Nissan Engel adorns the Faculty Lounge; an Engel poster hangs in Room 204 and two Engel watercolors hang in Room 21IA. Room 213 con­ tains two silkscreens of Mayan figures from Lamberson, as well as a block print on the Pegasus theme.

DUKE lAW MAGAZINE / 4 Constitutional Change: Reflections on the American Experience" by Walter Dellingert

alter Dellinger has tral'elled widely during the past year lecturing on a mn'ely of constitutional issues. Last fall, W he delil'ered addresses at the Brookings Institute in Washington, at the National Humanities Center, and at the annual meeting of the Association qf American Law Schools. In the spring he gal 'e a series of fifteen lectures on American constitutional law at tbe Catholic Unillersily in LeulIen, Belgium. While in Europe, be also gal'e talks at a number of leading unil'ersities. He lectured in Ita~v at the Unil'er­ sity ofFlorence and at the UnilJersity ofSienna. He gam two lectures at the University ofCopenhagen, Denmark, and delilJered an address sponsored by the the Gernzan­ American Lawyers Association in Nuremburg, Germany !bis December Professor Dellinger was irll'ited to address a convocation held in Rio de janeiro, Brazil, on the el'e ofthe drafting ofa new democratic constitu­ tion for Brazil, which has turned to cil..'ilian gOl'ern­ ment after twenty-one years of military rule. !be conference was sponsored by the Instituto dos Advogados Brasileiros and the American Bar Associa­ tion. Other American speakers included Harmrd Law Professor Paul Bator, former Attorney General Ben­ Walter Dellinger jamin CilJiletti,jederal court of appealsjudge Abner Mikva, and Michigan Law Professor (andformer Solicitor General) Wade McCree. Professor Dellinger delil 'ered his address to tbe ment article-was drafted, and then to look even more conference's final banquet on December 12, 1985- briskly at the historical context in which the Excerpts from his address follow: Constitution's twenty-six amendments have been Dr. [Sergio] Ferraz [Presidente do Instituto dos adopted. With this as background, I will address a few Advogados Brasileiros] and Mr. [William] Falsgraf specific questions concerning the law and policy of [President of the American Bar Association], ladies and constitutional change that are currently the subject of gentlemen: lively dispute in America. I am honored to have been asked to reflect with you The place to begin is with that extraordinary experi­ at this propitious moment in the constitutional history ence in fundamental constitutional change that took of Brazil about the American experience with constitu­ place in Philadelphia in the summer of 1787. The states tional change. I will talk this evening about a mystery for whom a constitution was being drafted were hardly that reverberates through two centuries: how does a then a nation. The coming together of these colonies a constitutional system of government, itself born of dozen years earlier had been more difficult than we can revolution, properly provide for its own revision easily now imagine. From the vantage point of 1776, the -provide literally for its own re-constitution? To year of the American Revolution, the Constitution that explore this question, I plan first to consider briefly the emerged a dozen years later looms as an extraordinary political and intellectual assumptions against which creation. None of the Revolutionary leaders contem­ Article V of the United States Constitution-the amend- plated erecting over America a truly national govern- VOL. 4, NO. 1 / 5

ment with the power to operate directly on individuals. warrant tumultuous assemblages of citizens, without At that earlier time-I77S-John Adams had written legal authority; to dictate to the government not only its home to Abigale of "[f]ifty gentlemen meeting together current policy, but amendments of the fundamental law. all strangers ... not acquainted with each other's The amendment article can thus be seen as part of the language, ideas, views designs. They are therefore conservative thrust of much of the work of the jealous of each otl1er-fearful, timid, skittish." While to Convention. The inclusion of a specific amendment us they stand at the beginning, initiating a history, Gary procedure emphasized that changes of fundamental Wills notes that "they saw themselves as defenders of a law were henceforth to be made only in accordance history accomplished; taking risks that might end, with modes sanctioned by the docLll~1ent itself. The rather than launch, a noble experiment." They came as amendment article thus served to confine the right to representatives of legislative assemblies a century old. revolution within expressly preso-ibed legal procedures. The colonies were more trading rivals than partners. The physical distances were vast, and land travel between colonies was an arduous undertaking. None of the Massachusetts delegates had ever seen Philadelphia. Most early state constitutions did no~ The American colonies fought the War of Revolution as allies, not as a union. At war's end they confederated however, contain any definite procedures as thirteen government') under Articles of Confedera­ tion, each retaining its "sovereignty, freedom, and by which reform or reformation could independence" except as expressly delegated to a Congress of limited authority, in which each state voted be accomplished. as a state and cast a single vote. Altl10ugh awesome problems beset this Confedera­ tion ("We are fast verging to anarchy and confuSion," The complex procedures provided for by Article V are wrote Washington to Madison), there was little doubt these: Changes-amendments-can be proposed in that the Government under the Articles of Confedera­ either of two ways: amendments may be proposed tion was a duly constituted, legitimate government. It either by Congress or by a national constitutional was a government, moreover, whose fundamental con­ convention. And amendment') may be ratified in either stitution expressly provided that no amendment-no of two ways: either by the legislatures of three-fourths alteration designed to remedy its other defects-could of the states, or by ratifying conventions in three­ be made without the unanimous consent of all the fourths of the states. parties to the Articles of Confederation. But the It has been said that in constructing a federal required unanimiry among the state legislatures on government the two most important issues are the proposed amendments was impossible to achieve. This initial allocation of power between the two levels of then was the framer's dilemma: they sought, in part for government and the location of power to change that the sake of stability, a new and sounder constitution. But allocation in the future. Throughout the summer of that constitution could only be obtained by once again 1787, the delegates at the Philadelphia Convention had (for the second time in a dozen years) engaging in constructed the basic framework of American federal­ lawless (or at least clearly extra-legal) action in viola­ ism. Only in the closing days of the Convention-after tion of the command of the existing constitutional the delegates had completed the difficult task of order. It is with this dilemma that I will begin and end achieving consensus on the balance of state and this lecture. national power-was agreement reached on an From the outset of the Philadelphia Convention, the amendment formula. delegates agreed upon the need for an amendment One striking aspect of the amendment process is process through which future lawful revision would be this: nowhere in the Constitution is its federal character a genuine possibiliry. The amendment process they more pronounced: each state counts as one in the adopted represented, in a sense, the domestication, the ratification process. Unlike the presidential election taming, of the right to revolution which had been process, Article V does not require that the votes of each proclaimed by the colonists. The early state constitu­ state be weighted by population. It does not even tions had legitimated the right of revolution by boldly reqUire that states with a majoriry of the population proclaiming the right of the people to "reform the old ratify an amendment. How much popular support an or establish a new government." (Maryland, 1776). Most amendment needs in order to be ratified varies enor­ early state constitutions did not, however, contain any mously depending upon whether it is supported or definite procedures by which reform or reformation opposed prinCipally in small or large states. An amend­ could be accomplished. As Judge Jameson noted, ment opposed by the twelve smallest states containing less than 4% of the national population will not become The doctrine of the Revolution, that governments were part of the Constitution even though ratified by the founded by the people, and could be amended by them other thirry-seven states which have 96% of the as they should think fit, was erroneously understood to population. On the otl1er hand, an amendment sup- DUKE LAW MAGAZINE / 6

ported by the smaller states could be ratified with the equally against that extreme facility which would support of substantially less than half the population. render the Constitution too mutable; and that extreme An amendment can be ratified by the thirty-eight difficulty which might perpetuate its discovered faults." smallest states-states that contain barely 40% of the How well has Madison's sanguine prediction fared? national population. What does our history tell about the facilit\, with which Of course, this was exactly what the framers the Constitution can be amended? Since 1'789 over fi\'e intended: the equality that is relevant for purposes of thousand bills proposing amendments to the Constitu­ amending the Constitution is nOt the equality of tion have been introduced in Congress.-Ol these, only individuals, but the equality of states in a federal union. thirty-three received the necessary two-thirds vote of As a consequence, however, of this deference to both Houses of Congress and proceeded to the states federalism, the population percentage needed for ratifi­ for ratification. Twenty-six were ratified, seven have cation varies from 40% to 96% depending upon failed. With only a few exceptions, the amendments proposed by Congress have come in clusters. History shows that a political movement with the strength to see one amendment through ratification usually succeeds [rjhe equality that is relevant for in enacting a series of amendments. There have been four periods in our history in which cluster of amend­ purposes of amending the Constitution ments have been proposed and ratified. Virtually all of our amendments are the product of these four political is not the equality of individuals, but movements. the equality of states in a federal union. The first of these four brief amendment periods ran from 1789 to 1804 and produced what may loosely be called the "anti-Federalist amendments"-the Bill of Rights and the eleventh and twelfth amendments whether an amendment is relatively favored by those in -each of which was, in part, a concession to anti­ large or smaller states. Of all the proposals to change Federalist or Jeffersonian interests. The eleventh the American amendment process that have been made amendment limited the authority of the federal courts through history, the one that has the most appeal to me (then in the hands of the Federalists) to hear suits is the suggestion that we reduce the number of states against the states and the tv.oelfth corrected a glitch in required for ratification of an amendment from thirty­ the electoral college process that had nearly costjef­ eight to, say, thirty-two, but add a requirement that the ferson the Presidency More than half a century passed ratifying states contaiil at least a majority of the national before the Constitution was again amended. In 1865, population. Sixty-one years after adoption of the twelfth amend­ Does tlle American amendment process, as it is ment, Congress proposed and the states ratified the presently constituted, make changing the Constitution thirteenth amendment, the first of the three great too hard or too easy? The opponents oftlle Constitution Reconstruction amendments. The adoption of the tllought that it was much too difficult to amend. Patrick fourteenth and fifteenth amendments followed in 1868 Henry, that precursor of the populists, fought against and 1870. this Constitution with all his mighty powers of oratory These three great civil war amendments fundamen­ arguing that the Constitution was an elitist document tally changed the American Constitution. The thirteenth creating a powerful, distant national government far amendment ended slavety and the fifteenth prohibited removed from the people and unduly tilted toward the denying the right to vote on the grounds of race. But it protection of property rights. The supporters of the is the fourteenth amendment that has provided the Constitution urged that it be ratified and argued that any most dramatic continuing source of change in Amer­ defects could be cured by subsequent amendments. ican constitutionalism. Before Congress approved the Henry saw the amendment process as holding out only fourteenth amendment in 1866, the Constitution con­ the beguiling possibility-but not the reality-of tained very few limits upon the legislation that states change since amendments could be blocked by four could adopt. The fourteenth amendment proclaimed in states with less than 5% of the national population. His sweeping language that "No State shall abridge the fellow opponent of the Constitution, Luther Martin of privileges or immunities of citizens of the nited States; Maryland, ridiculed the framers' argument that the nor shall any State deprive any person of life, liberty or Constitution should first be ratified and then could be property without due process of law; nor deny to any amended: They urge us, said Martin, "nOt [to] hesitate person ... the equal protection of the laws." The swallowing the poison from the ease and security of amendment provided further that Congress could instantly obtaining the antidOte." enforce its sweeping provisions through appropriate Madison, the prinCipal architect of Article V, legislation. It also provided a basis for the United States defended the amendment process in the 43rd Federal­ Supreme Court, in the exercise of judicial review, to ist. "The mode preferred by tlle Convention seems to invalidate those state practices that could be seen as be stamped with every mark of propriety It guards violative of the amendment's broad commands, and has VOL. 4, NO.1 /7 been the source of almost all of the controversial amendment's adoption, only five states still imposed judicial decisions issued by the Supreme Coun in such a ta,'(, it was not enforced in all of those, and the our time. Supreme Coun was on the verge of eradicating it For almost half a century following the Civil War anyway. The twenty-fifth amendment, providing rules there were no amendments either proposed or ratified. for presidential disability and succession, was widely And then, suddenly, in the shon space of seven years approved as a useful technical change in the between 1913 and 1920 five amendments were pro­ Constitution. The twenty-sixth-lowering the voting posed by Congress and four of them were ratified by age-seems dramatiC, but the drama was all gone by the states. The Progressive Movement rediscovered the the time of its adoption. The Supreme Court had amendment process and was able to run the gauntlet of upheld Congress's action that had by ordinary legisla­ that process to produce amendments providing for tion lowered the voting age to eighteen for/ederaf federal income taxation (the sixteenth amendment, elections, making it extremely difficult for states to ratified in 1913), direct election of senators (the maintain separate voting lists for state elections. A'i a seventeenth amendment, ratified in 1913), prohibition (the eighteenth amendment, ratified in 1919), and women's suffrage (the nineteenth amendment, ratified in 1920). These linked amendments sought to purify To insure that the full range of future American life-particularly American political life-by curtailing the influence of great wealth through the ta,'( constitutional changes would be a amendment, by bringing into politiCS what was thought to be the uplifting influence of \vomen, by banishing viable possibilit] the framers sought to liquor and the saloon politiCS that went with it, by letting the people themselves choose United States provide some means of constitutional Senators. Extending the franchise to women was thought critical to the success of the amendment change free of the control of existing prohibiting liquor and the proposed (but unsuccessful) governmental institutions. amendment banning child labor. All in all, these Pro­ greSSive Movement amendments constitute the most energetiC use of the amendment process we have ever experienced. result, the twenty-sixth amendment was ratified in less Together, these first three brief periods of constitu­ than four months. The ease of passage of these four tional amendment activity (the Bill of Rights; the Civil amendments thus does not support the conclusion that War Amendments, and the Progressive Amendments) it is a simple matter to adopt an amendment that accounted for all but three of the amendments adopted significantly changes the constitutional framework. before 1960. A fourth period of amendment activity Wholly apart from the question of whether an lasted from 1961 to 1978. During these years, Congress amendment process is too difficult is the question of proposed six amendments, four of which were whether an amendment process tends to lock into adopted. The recent adoption of four amendments may place those existing institutions created by the original create an impression that amending the Constitution is document. This is a problem that inevitably faces those fairly easy. Each of the amendments adopted, however, creating constitutions. One must choose some institu­ enacted relatively uncontroversial propositions. The tions to propose and ratify changes. But how do you change those institutions that are given the power to initiate and ratify amendments? If, for example, Con­ gress is to propose all amendments, and all must be ratified by state legislatures, how can you ever realisti­ [Ijt is the fourteenth amendment that cally expect changes to be made in those institutions has provided the most dramatic and their powers? To insure that the full range of future constitutional continuing source of change in changes would be a viable pOSSibility, the framers sought to provide some means of constitutional change American constitutionalism. free of the control of existing governmental institutions. The framers therefore included alternative mechanisms both for proposing and for ratifying amendments. From the earliest days of the Constitutional Convention, the twenty-third amendment provided three electoral votes delegates sought to avoid giving Congress the sole for the District of Columbia; it affected only a small authority to propose amendments. If the proposal of all percentage of the national population. The tvventy­ amendments ultimately depended upon Congress, founh embodied a salutary prinCiple: the abolition of George Mason argued, "no amendments of the proper the poll tax for federal elections; at the time of the kind would ever be obtained by the people, if the DUKE LAW MAGAZINE / 8

Government should become oppressive, as he verily applications are invalid because they erroneously believed would be the case." 1 Farrand at 629. Other assume that the agenda of the convention can properly delegates, however, were apprehensive about the threat be controlled by the applying state legislatures. These to national authority if state legislatures could effec­ scholars argue that a "Convention' for proposing tively propose and ratify amendments without the Amendments" was designed to be free of the control of involvement of some institution reflecting the national both Congress and the state legislatures, free to deter­ interest. mine its own agenda, free to consider and debate So the Convention struggled to find some method alternative solutions and finally to decide what amend­ of proposing amendments that would be free of con­ ments should be proposed to the states for ratification. gressional control. One possibility was to have a certain In addition to providing this alternative of a national number of state legislatures agree upon an amendment, convention for proposing amendments, Article V also which would then be ratified by the state legislatures. provides an alternative method of ratifying amend­ ments. For each amendment (whether proposed by Congress or by a national convention) Congress is free to choose whether to submit the amendment for [Tjhe use of either a national ratification to state legislatures or to "conventions" in each state. By giving Congress this authority, Article V convention for proposing amendments preserves the possibility of reforms restricting the power of state legislatures. The Constitution itself was or state conventions for ratification are submitted to ratifying conventions in each state, rather than to state legislatures. For thirty-two of the thirty­ at present fraught with uncertainties. three proposed amendments Congress chose to submit its proposal to state legislatures. But the use of the convention method of ratification is not unprecedented: This proposal was njected by the Convention. Hamilton the twenty-first amendment repealing Prohibition was said, "The State Legislatures will not apply for alter­ submitted by Congress in 1933 to state conventions. ations but with a view to increase their own Virtually every state chose to have delegates to its powers-...." State legislatures were considered the ratifying convention elected, and in every state the problem to which the new constitution was a response. election of delegates was, for all practical purposes, a The last thing the framers wanted was a system by dispositive referendum on whether or not to ratify the which two-thirds of the state legislatures could propose amendment. In every state the voters' wishes were amendments which would then be ratified by three­ expeditiously carried out by the slate that had won fourths of those same state legislatures. Madison election. In less than ten months from the time it was reminded the delegates that the "greatest evils com­ proposed by Congress, the amendment was ratified by plained of" were those of the state legislatures. elected conventions in three-fourths of the states. The solution to this dilemma was the "convention of the people." In addition to providing that amend­ ments could be proposed by Congress, the final version of Article V provides that Congress must call "a Conven­ (~xcessive democracy}) in the state tion for proposing Amendments" whenever two-thirds of the state legislatures apply for one. Such a conven­ legislatures was seen by many of those tion would be, like Congress, a deliberative body capable of assessing from a national perspective the who gathered in Philadelphia as the need for constitutional change and capable of drafting proposed amendments for submission to the states for central problem requiring a new ratification. At the same time it would not be Congress Constitution. itself, and therefore would not pose the threat of legis­ lative self-interest blocking needed reform of Congress. No national "Convention for proposing Amend­ ments" has ever been called. In recent years, however, a The "convention of the people" was a familiar number of state legislatures have petitioned Congress device in the eighteenth century. It now seems archaiC, to call a convention limited to proposing a particular and the use of either a national convention for pro­ amendment specified by the applying state legislatures. posing amendments or state conventions for ratification Some scholars conSider these applications to be valid are at present fraught with uncertainties. The conven­ and argue that if similar applications are received from tion device was nonetheless an imaginative effort to two-thirds of the state legislatures Congress should call address a universal problem of constitution drafting: the convention and seek to limit the convention to the how to provide the means for future reform of govern­ particular amendment (or subject) specified in the state mental institutions, when the only institutions readily legislative applications. Others argue that such state available for proposing and approving changes are VOL.4,NO.1/9 those already in existence, and possibly in need of ventions would be direcdy elected by the people reform themselves. dlemselves. There was a substantial equation in the late * * * eighteendl century between the concept of "me Let me finally come full circle and conclude by People" and the concept of the popularly elected reflecting upon the dilemma widl which I began. convention. A phrase mat was commonly used was "the How is it possible to move from one constitutional People in Convention assembled." It was the Articles of system to another and yet maintain constitutional Confederation whose legitimacy was in doubt for they legitimacy? The American Constitutional Convention of rested only on legislative ratification. To send the 1787 confronted dlis difficult question as mey grappled Constitution to dIe people was to recur, as Wilson put it, with the issue of dIe legitimacy or legality of dleir plan "to the original powers of Society." [M-563] Madison for ratification of the new Constitution. The Articles of argued that ''The people were in fact the fountain of all Confederation and Perpetual Union -the existing power, and by resorting to them, all difficulties were got constitutional government-provided dlat the articles over." [M-562] "would be inviolably observed and the union shall be Elbridge Gerry was nonetheless nervous to the end. perpetual; nor shall any alteration be made in any of As late as September 10, "Mr. Gerry urged the indecency mem . .. unless confirmed by dIe legislature of evety and pernicious tendency of dissolving in so slight a state." There was simply no way, however, that every manner, the solemn obligations of me articles of state would agree; nor was dlere any significant hope confederation. If nine of out of thirteen can diss'olve the that me state legislatures, the big losers under the compact, six out of nine will be just as able to dissolve Convention's proposal, would ratify the Constitution. the new one hereafter." [M-612] Power in the early American Confederation was lodged Let me conclude wim me answer to Gerry by young in the state legislatures-the most democratically Governor Randolph of Virginia, an answer that effec­ elected bodies dIe world had even known. Popular tively laid further discussion to rest: "Mr. Randolph ... democracy in these legislatures produced paper money painted in strong colors, the imbecility of the existing and debtor relief legislation and provincial localism confederacy, & the danger of delaying a substantial produced trade barriers between the states that threat­ reform. ... When me salvation of me Republic was at ened to ruin me economy. "Excessive democracy" in stake, it would be treason to our trust, not to propose the state legislatures was seen by many of those who what we found necessary. ... There are great seasons gathered in Philadelphia as the central problem when persons wimlimited powers are justified in requiring a new Constitution. But the state legislatures exceeding dIem, and a person would be contemptible were unlikely to approve dIe kind of changes this new not to risk it." [I Fat 255, 262] Constitution would make. So me framers decided to send this new Constitution not to the state legislatures but to specially elected conventions in each state for *This paper is the banquet address presented at the ratification. The Convention therefore simply declared Symposium on the American Constitutional Experience dlat its Constitution would be dIe Supreme Law of the in Rio de janeiro, Brazil, on December 12,1985- Land when ratified by nine rather man thirteen states, Portions of this address were drawn from Dellinger, The and indeed when ratified by specially elected conven­ Legitimacy of Constitutional Change: Rethinking the tions in dIose states ramer man by the duly consti­ Amendment Process, 97 Harv. L. Rev. 386 (1983); tuted legislative government specified by dIe existing Dellinger, The Recurring Question of the 'Limited' Constitution. Could these revolutionaries in search of Constitutional Convention, 88 Yale L.J. 1623 (1979); stability justify dlis (hopefully last) act of civil Dellinger, The Amending Process in Canada and dIe disobedience? United States: A Comparative Perspective, Law & Madison in fact presented at least the oudine of a Contemp. Probs., Autumn 1982; and Dellinger, substantial argument for the legitimacy of the Anomer Route to dIe ERA, Newsweek, August 1982. Convention's proposed self-validation. Ratifying con- t Professor of Law, Duke UniL'ersity DUKE LAW MAGAZINE / 10 American German Tax Law Symposium in Heidelberg

everal Duke Law faculty members attended Dennis Hutchinson from the University of Chicago, the American German Tax Law Sym- and Stanley Bergman, a practicing attorney. Sympo­ posium held in Heidelberg this summer. sium participants were supplied widl written transla­ S Qrganized by the Institute for Financial and tions of dle American lectures, and arrangements were Tax Law of the University of Heidelberg and sponsored made for simultaneous verbal translations of the by the Drager Foundation, the topic of the symposium German speeches. The program also included a boat was "Income Taxation in the Constitutional System of excursion on the river Neckar, a reception given by the the United States and the Federal Republic of Ger­ Rector of the University of Heidelberg, and travels into many." Professors Gann, Schmal beck, and Van Alstyne dle Heidelberg environs. Additionally, former Duke all delivered papers on taxation topics, and Dean alumni of bodl dle J.D. and LL.M. programs met for an Carrington served as both moderator and speaker. The informal "reunion" luncheon at a local Heidelberg res­ only other American speakers, aside from Duke faculty taurant during the symposium. members, were Hugh Ault from Boston College, VOL. 4, NO.1 / 11 A Constitutional Review of the American Income Taxt William Van A lstyne*

I. INTRODUCTION

oday there are nearly 160 nations with written constitutions, yet no more than six of these constitu­ T tions predate 1900. Of these six, the Constitution of the United States is by far the oldest, and the subject of taxation is its second most prominently featured subject. 1 Indeed, "taxes" are spe­ cifically addressed in eight separate clauses of the orig­ inal Constitution of 1789 and twice more in subsequent amendments. These two facts-the seniority of the American Constitution and the sheer number of its tax clauses -ought to make the American Constitution an abun­ dant resource for comparative study Combined with one other feature of our system, moreover, they might make our experience more valuable than practically any other, especially in respect to principles of income taxation.2 That additional consideration is the special distinction the American courts have always enjoyed since Marbury l 1 Madison confirmed it. That distinc­ tion is, of course, the judicial power of substantive, constitutional review, a power the courts of most coun­ William Van Alstyne tries have not had.3 Yet, very generally our constitutional experience in the management of taxes has not been particularly illuminating .... A number of our constitutional clauses are down­ II. AN OUTLINE OF THE ESSENTIAL right anachronistic; they are preoccupied with revenue (INCOME) TAX POWERS. sources (e.g., duties, imposts, customs, and excises) The essential plan of the American Constitution is which were overwhelmingly the principal source of exceedingly straightforward. It is this: the national gov­ national revenue during the first century of American ernment may do only those things the Constitution constitutional history, but have been long since over­ either expressly or impliedly authorizes it to do; the taken by the income t

to which an identically-situated taxpayer-owner in a dif­ occurred in his property within a given accounting ferent state would pay The resulting apparent inequity period, is thus, constitutionally speaking, widely of that arrangement, while wholly constitutional regarded to be a tax on "income derived" from (indeed, it is exactly the intended result), has generally property, rather than a tax "on property" in the United inhibited Congress from using its power to tax by States. means of levying a "direct" tax. s My own difficulty with this matter, alas, however, is In 1895, the Supreme Court of the United States that to a layman (altllough perhaps not to an econo­ equated a tax on income from property (whether real mist) tlle specific example we just shared does not property or personal property) with a tax directly on seem to have the same feel as an "income" tax ordi­ the property itself. The Sixteenth Amendment was narily connotes. Rather, in several respects, it feels adopted, in turn, to overcome that result, as a glance at indifferently as a tax on land and its mere ownership its language is quite sufficient to suggest. Thus, it rather than as a tax on income from land. Were the tax enables Congress to "lay and collect taxes on incomes, to fall on a person for rents paid by tenants, albeit to from whatever source derived, without apportionment occupy the owner's land (the very item involved in among the several States." Pollock), the issue is not at all doubtful. Whether one The Sixteenth Amendment in turn, however, leaves actually bothered to collect those rents while having a two or three matters quite unclear. And although none full right to do so which right one willfully postponed of them is necessarily interesting to an economist, exercising, seems Similarly to make no appropriate unfortunately they do linger in theoretical importance critical difference-certainly not a constitutional dif­ in the United States. The problems are these. First, ference. If tlle mere theoretical gain in the land's value does it remain true under the Anlerican Constitution alone fixes the measure of tax, on tlle other hand, that Congress may not even now levy taxes on prop­ while the case seems comparable in some respects,1 3 erty (as distinct from taxes on income from property), it seems on the face of things still to be a tax on the unless it adheres to the apportionment formula we land itself-which direct land tax is simply being mea­ have already reviewed?9 If it does remain true,IO how sured by an eccentric measure (namely, the difference does one minimally distinguish a tax on income from between fair market value as of one date and another, property from a tax "on property"? And third, assum­ ratller tllan by the fair market value on a single date). ing that one can make that distinction, to what addi­ In brief, nothing seems to make it less of a land tax tional extent may the Sixteenth Amendment require (and thus a direct tax) when nothing determines that the "income" also be income "derived" from its whether one is subject to the tax other than ownership source in the sense of being already separated from of the land. the source before it becomes taxable? This last ques­ Indeed, if this seems to be a mere cavil (rather tion becomes pertinent because of the apparent than a serious objection), then constitutionally-conceiv­ requirement of the Sixteenth Amendment that while able distinctions between "direct property" and income regardless of source may be taxed by Congress, "income-from-property" taxes appear to be nearly yet it is only such income as has been fully "derived" impossible to make in any coherent fashion. ConSider, from its source as is thus taxable without apportion­ for instance, tlle following possibility. A tax on land ment, assuming that the source is itself some kind of might be measured, neither on the land's fair market property! I value as of a certain date (which no one seems to The latter question is no longer regarded as claim is an "income" tax) nor on the difference controversial, altll0ugh I am not personally clear why between what tlle sanle land might have been sold for not12 Nevertheless, it is reasonably clear tlut any as of December 31st, minus what it might have been readily realizable "accession to wealth" may be subject sold for on the preceding January 1st of the same year, to an unapportioned income tax, whether or not the which many contend is merely a tax on a realizable taxpayer actually cashed it in or sought to cash in at "accession to wealtll" and tllUS a tax on realizable tlle time. Effectively, "derived" tlluS means not derived income. Rather, tlle tax on one's land might instead be in the sense of having been pulled off from or already measured by the sum of money one might have converted as gain, but derived only in the lesser sense received had one rented it during the year, although of an accountable (although unconverted) gain, cur­ one did not rent it at all, one received no rent, and, rently realizable from an identified source which itself having elected not to rent, one had no right to rents. is already under the command of the taxpayer. It is Such a tax would, of course, be valid under the power therefore (by way of example) solely the discretion of of Congress to levy taxes. The question is, however, Congress that currently permits "income" taxpayers to whether it would have to be apportioned as a direct defer the income tax on each year's paper appreciation tax. It would seem tllat it might-or might not. of their assets until such time as they dispose of them, If one had lived on tlle land oneself, some econo­ rather than any alleged constitutional problem that mists insist that one has in fact realized "income." The otherwise the tax would be tllought to be a tax on the measure of that income can be captured in a dollar asset (ratller tllan a tax on income derived from the figure representing the difference between what one asset). A tax on a person for such realizable gain as might have rented the house for and the depreciation DUKE LAW MAGAZINE /14

of the house during the same year. One knowingly power to tax is generally tl1e power also to destroy (by forewent that income by consuming personally its taxation), it must not extend to intergovernmental equivalent, i.e., by living in the house-they are taxation; were it to do so it would imperil the exis­ inclined to call a tax on such a (consumption) choice tence of each government subject to the raw tax an "imputed" income tax. If one neither rented the powers of another. land nor even lived on it, moreover, still that chOice The scope of intergovernmental tax immunities is may itself be said to constitute a consumption choice problematiC, however, because our Constitution no­ such that one has again "consumed" (and thus real­ where expressly addresses the problem of intergovern­ ized something-"income"?) reflected by the value of mental tax immunity and nowhere explicitly draws one's election for oneself as to what one did. The any lines limiting either national or state tax powers. proper figure for purposes of taxing that chOice is There are no express clauses providing for inter­ again allegedly the difference between rents one might governmental tax immunity in the United States, either have received minus the expenses (including deprecia­ for the respective national and state governments as tion) incidental to the earning of those imputed taxpayers or as the respective source of income receipts-call it a "preclusive" imputed (net) income received by others as taxpayers. tax-the income (consumption) value of the "right" The problem is nonetheless an obvious one, isn't one exercised in precluding others from having occu­ it? The "union;' i.e., the national government, could pied one's land in exchange for taxable rents. hardly be indestructible if its own income were sub­ But by this train of reasoning, the last possible ject to unconstrained state income taxes, and so, too, clear distinction between a "property" and an "income" with respect to the state governments and the national tax seems to have disappeared. And, indeed, at bottom, tax power. Similarly, the union could hardly be inde­ perhaps this is so. From one very strict economic structible either if, although the national government perspective, perhaps all ownership values as such may itself could not be taxed by state governments, none­ be nothing other than the sum of some realizable (and theless any activity it carried on within any state (such taxable) stream of income(s). Still, to bring this as paying salaries to federal employees) were itself concession fully within the Sixteenth Amendment subject to an unlimited state income tax power, and seems logically to require one to answer the first ques­ vice-versa as well. tion we put earlier, in a startling fashion: that the Six­ In the absence of express constitutional clauses teenth Amendment may not merely free a tax on providing explicit and particularized boundaries of incomes from whatever sources derived, from the intergovernmental tax immunity, the American Supreme requirement of apportionment. Rather, it may free Court has developed its own case law jurisprudence. Congress to impose direct property taxes without The basic principles are as follows. Note that they are apportionment, to afar greater extent than one had clear and strongly supportive of the national govern­ imagined to be possible.]4 If so, then it is correspond­ ment, and conSiderably less clear (and less supportive?) ingly doubtful whether the "realization" principle of of the several state governments. income taxation frames any significant constitutional The (income) tax immunity of the national govern­ restraint upon the American income t

details of that practice are unimportant. The important, flicting acts of the national Congress. We have already constitutional matter is that the ultimate income tax seen that the opposite is the case. It necessarily powers of the states are subject almost without limit to follows, therefore, that to the extent Congress has been whatever scope of tax immunity Congress may provide granted an express and protean tax power, and chooses in respect to any nationally conducted or nationally to use it by requiring a tax to be paid on "income;' authorized activity to which Congress wishes to extend there is no power in the states simply to "legislate" such immunity. Indeed, it is not necessary even to their own exemption or immunity from that tax. No speak merely of "governmental" immunity from state power, that is, by mere legislation to exempt either income taxes, in this respect. The sweeping clause of themselves (to the extent they might be made to pay our Constitution enables Congress to withdraw from taxes on their own incomes even as pure govern­ state income taxation purely privately-generated (as ments), or anyone else (e.g., their employees, con­ well as governmentally-generated, but privately­ tractors, agenCies, etc.). received) income as well. It need only be able to con­ In brief, whatever the scope of state and local tax vince the Supreme Court that its Act is expediently immunity in respect to federal income taxes, it exists connected to some other power within its authority, a merely: (a) by force of congressional forbearance; or task that is virtually incapable of failure, given the lati­ (b) by force of some kind of implied constitutional tude of interpretation the Court itself has allowed to immunity. For unlike the national government, the those powers. states cannot "legislate" their own immunity. The question, then, remains only this: to what extent does 2. Judicially Implied Immunity the Constitution itself imply some degree of tax immu­ of the National Government nity for state and local government? And at this pOint, In the absence of Congress making any provision 19 we reach one of the few yet unresolved issues in in respect to immunity for itself or for others against American constitutional income ta.,"{ law. state income taxes otherwise owing, the courts may Congress does not now in fact generally subject nonetheless "find" such an immunity on implied, con­ state and local governments to the income tax as stitutional grounds. Where the taxpayer whose income taxpayers, i. e., state and local governments do not would be taxed is itself the government (or an entity report to the U.S. Treasury what their "income" is or agency of the government), it is treated by the (whether from taxes, tolls, service charges, or sales), courts as altogether immune. Where the taxpayer is and do not now pay any federal ta.,"{ on those incomes. someone else, but the income is income from the Congress, moreover, has never attempted to do so. As government, for activity undertaken for the govern­ to this part of our concern, therefore, the questions ment, the judicial test is a bit more complicated. may be more theoretical than immediate or practical. Generally, however, an implied immunity will apply It is widely assumed that Congress could not constitu­ against any state tax that is either discriminatory in tionally apply the income ta.,"{ to state and local reference to the federal source of the income (e.g. , at governments, although for reasons I shall touch upon a higher rate than on other sources of income), or if in a moment, this is in fact a doubtful matter. regarded as though it were imposed virtually on the Congress has also generally exempted even ordi­ government itself. The sufficient points for our pur­ nary taxpayers from paying any tax even on their own poses are these: Congress may provide such immunity income to the extent their income came from certain from state and local income taxes virtually as it kinds of state or local governmental activity. The most pleases, and in the absence of congressional action, prominent example is personal income received as the courts deem the government itself to be immune interest paid on state or municipally issued bonds. as a taA.'payer and also exempt a significant number of Such payments are regarded as costs to the state and private parties and entities as well from such state local governments of financing their own services; taxes as the courts regard as undue interference with thus, though the interest received is certainly "income" federal activity. fully received by the private investor, it has nonetheless There is, on the other hand, no real symmetry in been completely excludable from federally taxable the constitutional structure of intergovernmental income. The exclusion provides a very substantial tax (income) tax immunity in the United States. That is, it shelter for the well to do in the United States. The is not the case that the states possess an equivalency of national revenue thus foregone (by providing this immunity in any degree comparable to that possessed exemption) also amounts to a substantial tax expendi­ by the national government. ture, i.e., an indirect subSidy to states and local The principal distinction arises simply from the governments; it enables them to market their bonds at fact that the supremacy clause of our Constitution is below general market rates. The question thus arises entirely a one way street. It has no counterpart for the whether this treatment is constitutionally required by states. The states are given no power (and neither is the principle of intergovernmental tax immunity, or any power "reserved" to them) to enact laws which, whether it might be eliminated by simple act of when enacted, could possibly have the force of Congress. "supreme law," i.e. , supreme over contrary or con- The question is especially interesting insofar as the DUKE lAW MAGAZINE / 16 salaries of state and local government employees are restraint. "The people of all the states, and the states not similarly excluded from the federal income tax, themselves, are represented in Congress, and, by their and the Supreme Court has rebuffed claims that they representatives, exercise this power" (i.e., the power to should be immune.2o The question may also be raised tax), Marshall insisted. He went on: "When they tax the still again as to whether Congress could tax the state chartered institutions of the states, they tax their and local governments themselves-on whatever constituents ...." income they receive, from "whatever source derived." Thus, the theory ran, the national government Indeed, to complete this description of theoretical required an implied constitutional immunity frOlJ1 cer­ problems, might not Congress be able to tax munic­ tain state taxes insofar as national interests did not ipal bond interest payments (or to tax state govern­ have any built-in political protection in the structure of ment incomes) not merely equally with all other the separate state governments. But, allegedly, insofar incomes being ~"(ed , but even at a differential (i.e. , as the states were all powerfully represented in the bigher) rate? manner of Congress's composition and the (electoral The usual first answer sometimes proposed in college) procedure of the President's own election, the response to all of these questions is "no." It is alleged Constitution protected the states in that way rather that the principle of intergovernmental immunity for­ than d1rough any additional, substantive implied bids these things. The "states" as such are acknowl­ immunity invokable in court.25 edged in the Constitution; it is understood that they Returning to this theme in 1946, in New York L! cannot exist at all without revenue, and it is assumed, United States, Justice Frankfurter accepted it and therefore, that the Constitution necessarily implies employed it as the basis for eliminating most state some degree of strong reciprocal immunity of the claims of implied tax immunity. He expliCitly denied states from taxes on their incomes and on such activi­ that implied constitutional tax immunity was "recipro­ ties (as interest payments to private parties) as other­ cal," i.e. , as available to d1e states, in respect to national wise provide their revenue from the sale of bonds or tax levies, as it was available to the national govern­ other instruments of government credit. The original ment in respect to state tax levies. ''The federal Supreme Court income tax case, moreover, is itself government," he intoned, "is d1e government of all the cited as clear and express authority for the basic States, and all the States share in the legislative process issue. 21 by which a tax of general applicability is laid." Nevertheless, the usual first answer is almost cer­ Finally, in d1e current term of die American tainly incorrect. The actual extent of state and local Supreme Court, this same theme was developed even governmental immunity from federal taxes (including one step more,z6 In a case involving the direct com­ income taxes) is probably extremely small. It may not mand by Congress to state and local governments to extend beyond two limited principles: an immunity pay their own employees not less than die minimum from "discriminatory" taxes or tax rates; a "core" wage Congress also required to be paid by private immunity for state and local governments as taxpayers, employers, the Court, in a five-to-four deciSion, upheld solely in respect to a narrow list of minimum, pecu­ the Act against a claim of state sovereign immunity. In liarly state functions. the course of doing so, it overruled die only decision Despite a number of nineteenth century Supreme during the preceding forty years to have favored the Court decisions that did hold for a broad implied con­ state claim. It also summarized the whole judicial his­ stitutional immunity from federal taxes on persons tory of state tax immunity claims-and indicated that receiving salaries from state governments, or interest previous distinctions27 had proved "unworkable;' and payments for money loaned to state governments,22 were no longer enforced by die Court. The majority the theory and foundations of that immunity were then wrote expansively of the adequacy of the states' abandoned by the American Supreme Court during constitutive representation widlin d1e national govern­ the past fifty years. Perhaps the key case is New York L! ment; it suggested that there was thus little need for United States. 23 In sustaining a federal tax even as continuing judicial monitoring of state implied immu­ imposed on state sales of state property in the open nity claims, and it concluded that only die most market, Justice Frankfurter, writing for the Court, egregrious sort of federal tax or regulation (e.g., a tax returned to a dictum by Justice Marshall in 1819. 24 on a state capitol, or a tax peculiarly discriminatory Marshall, a committed nationalist, had taken the view against only d1ings governments can do), would be that the states were principally protected from the deemed protected by some small residue of implied, threat of unreasonable taxes imposed by Congress by constitutional tax immunity. the adequacy of their own, vicarious representation in In light of these developments, therefore, it is rea­ the national government. His suggestion was, there­ sonably safe to suppose that for now,28 in the United fore, that the Constitution protected the states by its States, very little remains of justiciable implied consti­ provisions granting states conSiderable influence in tutional state and local tax immunity. Concretely, were the very structure of the national government itself Congress to eliminate die current federal income tax -implying, thereb)~ that those built-in political means exclUdability of interest payments private investors of influence might be exclusive as the sale source of receive on state or municipal bonds, despite the orig- VOL. 4, NO.1 / 17 inal holding in Pollock in 1895, I know of no basis be relatively greater than South Carolina's share. Correspondingh', ro raise that relati\'ely greater sum, a somewhat higher tax rate will need to be (consistent with the more recent developments) imposed upon an owner of real estate in Rhode Island than an owner in according to which that change could be successfully South Carolina, although the fair market value of the respective properties challenged.29 were idemical. See also B. BIlTKER, I FEDERAL TAXATION OF INCOME, ESTATES, AND GIFTS I-IS (1981). In brief, principles of federalism in the United The political objective of the restraim thus featured in the Constitution States are asymmetrically favorable to the national gov­ seems quite clear-to relieve the anxiety of the original "land rich" states ernment and unfavorable to state and local govern­ (principally in the South) thal Congress might be tempted to raise national revenue principally by property taxes, unless restrained bv a con­ ments. The Constitution provides virtually no express stitutional requirement according to which the more populous northern protection for the latter from the former; and our states would have to absorb the cost by a population share. Supreme Court is willing to find only the most modest The compromise lhus reached (that the national power to ta" would be vast, that it would include direct ta"es, but that these would be residue of implied protection of the states from the "checked" by [he population-apportionmem formula), carries over to twO protean tax powers of the national government. The other places in the original Constitution-nameh', that for represemation accommodations that currently exist (and, to be sure, purposes and for direct tax apportionment purposes, five persons held in slaver\' (an institution confined ro the South) would coum as three mem­ they are still quite substantial), exist largely as a matter ber, of that state's population. (See Article I, Sec. 2, cl. 3 and see also of national political sufferance alone. Section 1 of the lqth Amendment.) 9. Which apponionmel1l formula Congress general"" does not and is nOt likelv to attempt to satisfy, so that there is no practical likelihood of Congress making use of its power to lev\' such proper(\' ta.xes. t The original version ofthis paper was preparedfor 10. And most commel1lator, think that it does remain true, see, e.g., BIlTKER at pp. 1-22, supra note 8. ("[A]ny direct tax thar is nor imposed on andpresented at the American-German Tax Law Sym­ 'income' remains subject to the rule of apponionmel1l.") posium on Income Taxation in the Constitutional 11. -Ole again_ however, tl13t if the source or objecr of the ta.x b itself System ofthe United States and the Federal Republic not proper(\-, then since the tax might on that accoum not be deemed [0 be a "direct" ta.", it may be levied by Congress without apponionmem. For of Germarl)~ organized by the Institute for Financial example, if Congress ,,-ere to Ie\'\' a ta" on "corporations;' the tax might and Tax Law ofthe University ofHeidelbergJune 27- be characterized as an excise ta.x levied on the privilege of conducting 29, 1985. Several sections ofthe originalpresentation one's business as a corporation. Accordingh', so long as the tax were uni­ form (as required for all federal excise taxes), it might not matter that the have been deleted from the version published here. amount of the ta.x ,,,ere computed according to a fixed percemage of each *Perkins Professor ofLaw, Duke University corporation's assets or, alternatively, according to some uniform rate as applied to each year's appreciation of each corporation's assets. See Flim v. 1. Second only to the clauses which describe the structure of the Stone Tracy Co., 220 U.S. 107 (1911). national government. 12. Certainly [he case most frequently Cited does nor on its facts or in 2. Taxation of " income" is specificallv addressed by the sixteenth its language decide this matter. Commissioner \~ Glensha,,', 3"18 US. "126, amendment (913) which provides: ''The Congress shall have power to lay (955) (income equated with "undeniable accessions ro wealth, and collect ta.xes on incomes, from whatever source derived, without clearly realized, and over which the ta"payers have complete dominion;' apportionment among the several States, and without regard to any census as applied to windfalls of money actually received). Cj the earlier, much or enumeration more restricted (by source) definition. in Eisner v. Macomber, 2S2 L'.S. 189 3. As an interesting historical aside, moreover, it is worth mentioning (920), in which receipt of a stOck dividend was treated as an insufficient that while MarbU/J' l~ Madison is uniformly credited as the case sertling "realization." the Supreme Coun's power of substantive constitutional review, in fact the 13. E.g, the owner had an unqualified right to sell it but "merely" first case in which the power was used by the Court was a ta..'( case­ chose nOt to sell it. Again, howe\'er, nOte also the tension in another decided seven years prior to Jlfarbw)'. (The ca<;e, Hyltonl~ United States, 3 respect. Had the owner sold, all of the received price may be "gross US. (3 Dall.) 171 (1796), held that a federal tax on carriages was not a income" subject as the taxable e\'ent under an (unapportioned) "income" "direct" tax and was therefore nOt subject to the apportionment formula ta.x. Is there any constitutional requirement that only the net proceeds be required by Article I, Sec. 9, cl. 4.) Indeed, until the politiCS surrounding treated as income, i.e., that the owner must (constitutionally) be permined Marblll)' made the issue controverSial, a general power of judicial review to subtract his basis and selling costS' Alternative"~ is there an\' constitu­ appears to ha\'e been widelv taken for granted in the united States. tional reason that the transaction of selling could not be the taxable q. Some of the most important constitutional limitations have been activit\', such that the ta.x is thus an excise (rather than an income) ta.x, judiciallv derived from clauses that do not on their face even mention imposable by Congress subject onlv to the "uniformi(\'" requirement' taxation. E.g. , the first amendment, as interpreted to limit the tax po,,'er as 1"1. Which, indeed, was eVidently Justice Holmes's view. See Eisner" applied to newspapers (Minneapolis Star & Tribune v. Minnesota Comm's Macomber, 252 US. 189, (Holmes.]. dissenting). ("The known of Revenue, q60 US. S"'5 [1983]: Grosjean v. American Press Co., 297 U.S. purpose of this [Sixteenth] Amendment was to get rid of nice questions a.., 233 [1936], or the equal protection clause as interpreted to limit taxes bur­ to what might be direct taxes, and I cannot doubt that most people nOt dening voting or political activity (Harper" Virginia Bd. of Elec., 383 .S. lawyers would suppose when they \'oted for it that they put a question like 663 [1966]). the present to rest:') 5. Indeed, a.<; Chief justice john Marshall observed: ''The power to tax 15. Insofar as the taxpaving enti(\' or person may be unable or involves the power to destroy" McCulloch v. Maryland, 17 US. (4 Wheat.) unwilling to pay the respective taxes due the national and state (or local) 316 (1819). government, or insofar a.~ there is any other son of conflict between the 6. Generally, however, principles of due process (and of international national collection and the state or local collection of ta.xes, the Constitu­ law) have been loosely respected by Congress to confine the imposition of tion resolves the impasse whol'" in favor of the national government's income ta.xes on citizens or entities owing primary allegiance to the claims. It does so via Article VI, which provides that "the la",'S of the United States and to such income as others derive from wealth-enhancing United States which shall be made in pursuance [of an express constitu­ activi(\' or ownership occurring within the United States. tional power vested in Congress] shall be the supreme law of the land: and 7. Bv express statutory concession of Congress, state and local ta.xes, the judges in every state shall be bound thereby, any thing in the constitu­ including state and local income ta.xes, have generally been deductible in tion or laws of any state to the contrar\, norwithstanding." (Emphasis computing the net income on which one is then obliged to pay the added.). national income ta.x. But the concession is entire'" discretionary and, in 16. Texas v. \X'hite, 7"1 U.S. C' Wall.) 2r, 237 (1868). fact, the pending Reagan tax "reform" proposals i;l the United States pro­ 17. Article I, Sec. 8, cl. 18: "The Congress shall have power to make all pose to eliminate the deductibilit\, of Slate and local income ta."es. laws which shall be necessary and proper for carrying into execution the 8. Perhaps an example would be helpful. If Rhode Island has relativelv foregoing powers, and all other powers vested by this constitution in the less land but relatively more population than South Carolina, Rhode go\'ernment of the United States, or in an)' department or office thereof." Island's share of the sum to be raised by direct real estate land ta.x would 18. For instance, Congress does not now pro\'ide that the salaries of DUKE LAW MAGAZINE / 18

federal employees residing in states having state income taxes shall be 1913); (c) The special requirement (Art. I, Sec. " cI. 1) that all "revenue" exempt from such taxes. Neither does it generally provide an\' immunity bills originate in the 1louse of Representatives-whose members ser\'e for corporations or for contractors from such state income taxes as they only rwo-year terms and thus presumptively are more immediatelv would odlerwise owe from payments received for performance of federal accountable to local and state-bound constituencies; and the provision in contracts. Art. I, Sec. 8, cI. I , dlat Marshall expressly noted in .I1cCullocb t ' Jtaryland 19. Congress may make provision in respect to state income taxes, requiring "excise" taxes to be " uniform;'-and dlUS presumably adequate incidentally, either to provide immuniry or to pro/'ide liabifity. Thus, for to protect any from fear of other states or other interests "ganging" up in example, when it is clear (to a federal coun) that Cungress regards it as Congress to impose an unfair (because nonuniform) t3-,(. (But this require­ proper for federal contractors to pay state and local taxes on income ment also is of Virtually no de/acto Significance. The uniformity require­ derived from work for the federal government, the contractor is liable ment has never been more [han one of nomill3l geographic uniformity. whedler or not he would be liable had Congrebs said nOlhing at all. For [thus, "discrimination" is possible b)' selecting a subject for t3-xation which examples, cases, and funher discussion, see, e.g., J. HEli.ERSTEI! , STATE subject is of economic concern onl), to:l few state~ alonel, and, recently, AND LOCAL 1AXATION; CASES AND MATERIALS at ch. 1<1 (3d ed. 1969). ellen tbe requirement 0/ strict geograpbic unillersalit)' bas been part(J' 20. Helvering \ ~ Gerhardt, 30"1 U.S. 40') (1938). abandoned. United States \: Ptasylnski, 1103 S Ct. 2239 (1983) (express 21. Pollock \ ~ Farmers' Loan and Trust Co., 1')7 U.S. "129 (1895). The one-state exemption from federal tax upheld).) holding in Pollock was unanimous. 26. Garcia v. San Antonio Metropolican Transit Authority, ---U.S. 22. Collector \( Dav, 78 U.S. (11 Wall. 113 (18 7 1); Pollock \'. Farmers' Loan --(1985) and Trust Co., 157 U.S. "129 (1895). 27. Such as whether the federal tax was levied on a "proprietary" 23.326 U.S. 5'2 (19"16). The case explicitly sustained a uniform federal rather than a "go\'ernmental" function of state government, i.e., that the excise tax as applied to state sales of mineral water bottled and sold by the t3-,( was collectible merelv to the extent a state had entered into a conven­ state from its own, state-owned and operated springs. tional SOrt of business u~der state auspices (and ~o, like an\' private 24. ;l.lcCulloch \: ~lar\'land, P C.S. ("I \X 'heat.) 316. entrepreneur, should be made to pal' itS fair share of federal t3-xes on the 25. Examples of the manner in which Slates are influentially acknowl­ activity being pursued). edged in the composing of the national government might include: (a) 28. I say "for now," not to be co)' or simply equivocal, but rather Election of the President by a College of Electors, the members of which because the decision in Garcia was itSelf a narrow majority and because I are constitutionally reser\'ed for selection CIS eacb state legislalllre directs do not believe the intellectual foundations for tlie Court'S near total (Art. II, Sec. I , cI. 2) (But this dejure pro\'ision is of no de/acto practical abdication of judicial review in this manner to be sound. I have JUSt now significance am' longer, as "Electors" are chosen in popular election by attempted to address its difficulties in a separate manuscript, Van Alstyne, people obviously voting for national party candidates and not for the elec­ USERY, GARCIA, AND THE SECO 0 DEATH OF FEDERALISl\I, -­ tors at all); (b) Representation in one lIouse of Congress (the Senate) of MICH. L. REV --(1985) rwo Senators per state, regardless of population, the Senators themselves 29. Presumably, a rare example of one kind of state income that Olav to be clJOsell by eacb state legislature (Art. I, Sec. 3). (But this original be constitutionally immune from taxation bv the national government prodsion is also of Iirtle practical Significance since election of Senators would be the states' own income derived solely pursuant to their own was taken out of dle hands of state legislatures and submitted to popular income taxes, (The example is taken from Chief Justice Stone's concurring election again under national political parties, bv the Pth amendment of opinion, in New York v. United States, 526 U.S. 572 (19'16).) VOL. 4, NO.1 / 19 Case Law Substitutes for Constitutional Structures in Computing Taxable Income in the United States Richard Schmalbeck*

INTRODUCTION oth the United States and the Federal Republic rely heavily on individual and corporate income taxes. In the current US. B government's fiscal year (October 1, 1984, to September 30, 1985), it is expected that $328 billion of income tax will be collected from indiViduals, and that an additional $77 billion will be collected from corporations. Together, these taxes will yield about 54 percent of the total receipts of our national government. The Federal government in Germany relies less, in percentage terms, on income taxes, partly because it shares more than half of those revenues with the Laender and municipal governments, and partly because Germany has another major source of revenue in its value added tax-a tax which has been conSidered, but never adopted in the United States. Still, the portion of federal revenues in Germany accounted for by the income tax is substantial-nearly a third of all revenues in recent years. Given the importance of income taxes to both countries, it is in some respects surprising that their respective constitutions are virtually silent on the ques­ tion of what constitute income-the base against which Ricbard Schmalbeck these very important taxes are assessed. What consti­ tutes "income" is by no means self-evident, yet both the US. Constitution, in the Si'A1:eenth Amendment, and the German Grundgesetz, in articles 106 and 108, simply prompted by the Supreme Court's decision in Pollock v refer to taxes on income, without further elaboration. Fanners'Loan & Trust Co., 157 US. 429 (1895) and 158 Of course, the absence of detail in the constitutions US. 601 (1895), that an income ta-x which taxed such themselves does not mean that there is no constitu­ things as rents from property was a direct tax on that tionallaw in these areas. I am told that there is a good property, which, not being apportioned by population, deal of constitutional law on the proper definition of violated Article 1, section 9 of the Constitution. And, income in Germany. However, there has been very little shortly after passage of the Si'A1:eenth Amendment, the constitutional development in the US. defining income. Supreme Court made several pronouncements on the validity of Congress's efforts to exercise its power to tax THE STUNTED CONSTITUTIONAL RESTRAINTS income, including tile famous case of Eisner v ON INCOME DEFINITION Macomber, 252 US. 189 (1920). In Macomber, the Court In the early going, it looked as though there might said that Congress was not permitted to tax corporate be some significant Supreme Court elaboration on dividends that were paid in the form of additional what the Constitution did or did not permit. The shares of stock in the distributing corporation. The Sixteenth Amendment itself, of course, was largely grounds for mat decision were complex, explained in a DUKE LAW MAGAZINE / 20 majority opinion of more than thirty pages. But, to report gains from dealing in property; or how to essentially; the majority view was that the concept of compute those gains, for example. income included a notion of realization: the taxpayer To be sure, certain other sections of tlle Code had to have received something of value, something provide some clarification. Subchapter 0 of the Code that was separated from the property he already owned. (approximately sections 1001-1100) provides rules for Because dividends paid in stock left the taxpayer with computing gain or loss from dealings in property. But the same proportionate ownership of the same even these sections are prone to speak of such things as corporation as she had had before the payment, she making "proper adjustments" to the basis of assets to could not, in the majority's view, have received anything reflect certain events, witll0Ut proViding much detail as that could be called income. to what a proper adjustment might be in particular This was a strong start, but the Court did not sustain cases. this restrictive view of Congress's income-defining powers in subsequent cases. In a few isolated areas of THE CASE LAW STRUCTURES little importance, constraints were found. (For example, Thus, as in many areas of the law, it has fallen to the the Court found in Evans v. Gore, 253 u.s. 245 (1920), judiciary to provide, incrementally over many years, a decided shortly after Macomber, that the constitutional basic structure to the American income tax. And this prohibition on reducing the salaries of federal judges structure has generally provided an adequate substitute while in office precluded inclusion in income of any for the constitutional development that we lack. It is judicial salaries paid to federal judges, at least as to not, of course, a perfect substitute. Like constitutional those judges who were appointed before passage of the law, the non-constitutional American tax case law both Sixteenth Amendment.) However, in the mainstream enables and constrains: some cases enhance the income definition cases, the Supreme Court, and, a government's ability to collect the tax, while others limit fortiOri, the lesser courts as well, have been very that ability. Unlike true constitutional law, however, it is reluctant to find constitutional barriers to Congress's ineffective against concerted efforts by Congress to definitions of income, even if those definitions go produce particular results. This is, of course, no small beyond what the majority in Macomber would appar­ distinction; the American courts have simply not exer­ ently have permitted. Courts do sometimes find that cised a role in the definition of income that even things that the International Revenue Service thinks are approaches the power of their role in areas such as income are not in fact income, but not on constitutional freedom of speech and religion, criminal procedure, grounds. etc. The case law of tax is not super-statutory; it is And Congress has on at least a few occasions entirely developed within the franlework of the Internal enacted statutes that would be suspect under the Revenue Code. It cannot "trump" explicit congreSSional Macomber explanation of the realization requirement. enactments. And yet, it seems to me that the cases An example, to which I will return later, is provided by provide a framework to support tlle Code at least as the tax treatment of original issue discount. Simply much as the reverse is true. This common law of tax stated, Congress has, since 1969, required that taxpayers provides a structure, a powerful set of presumptions, include in income the annual improvement in value of within which the statutory materials are interpreted and zero coupon bonds sold originally at a discount, applied. despite the fact that the holders of the bonds receive no The case law of tax is, as one could imagine, very cash-and have no right to receive any cash-until the rich in material, and growing richer by tlle moment. In maturity of the bond.} Despite the absence in such each of tlle last several years, the Internal Revenue cases of a traditional realization event, I was unable to Service has proposed deficiencies on over one million locate any cases in which taxpayers had challenged the tax returns. Most of those are settled without litigation, inclusion of those value improvements on constitu­ but in 1984, over 40,000 federal tax cases were filed by tional grounds. taxpayers who could not reach agreement with the IRS We have thus reached a point where there are very about what they owe. Many of these cases reflect simply few, if any, truly constitutional constraints on the defini­ factual disputes, but at least 200 or so decided cases tion of income for tax purposes.2 each year involve genuine issues of law. Perhaps even more surprising is that on the basic How courts decide tllese cases is a subject about question of income definition, even the Internal Rev­ which volumes could be written. In tllis paper, I will enue Code speaks with remarkable generality: section describe briefly four basic principles used by courts in 61-titled "Gross Income Defined"-says simply that deciding cases-four chOices that judges appear to "gross income means all income from whatever source make fairly conSistently, which together form a substan­ derived . . .." That section does elaborate a bit, but only tial part of the basic structure of our tax law (though to note that certain types of income are specifically they are by no means intended as a comprehensive list included: compensation for services, rents, royalties, of the principles used by courts in tax cases). In all four gains from dealing in property; and several others. But of these chOices, the choice made by tlle tax jurispru­ these elaborations also are conveyed only in very dence appears to be a sound one, indeed, the choices general terms. Section 61 does not tell taxpayers when seem at first so obvious as hardly to involve chOices to VOL. 4, NO.1 /21

all. I will try to show, however, that they are not obvious, events of year one, noting only that in year five the and tilat good, perhaps preferable, alternatives exist. taxpayer received property worth $10,000 at no cost to him. Under this approach, an additional sum of $10,000 1. TAXABLE INCOME ACCOUNTING would be added to his taxable income. The first prinCiple is one that I would call the A third approach is the one in fact chosen by the "taxable income accounting" principle. Under this court in Alice Phelan Sullivan Corp. , and the one that principle, courts give a very high priority to getting a embodies the tax benefit rule. Since only $8,000 of the correct count of the dollars of taxable income a property's value was deductible in year one, only $8,000 taxpayer has enjoyed from an activity. This certainly should be added to income in year five . Of course, seems reasonable: who can criticize the effort to since the relevant marginal rates had doubled, this account correctly for the gross income, and for the means that the taxpayer will owe $4,000 of additional appropriate deductions, so as to reach tile right amount tax as a result of having taken a deduction worth only of taxable income? But I would assert that this goal of $2,000 to him in year one.7 computing correctly the taxable income is sometimes None of these choices seem unreasonable. Indeed, pursued at the expense of other legitimate goals of a each is consistent with the tenor of at least some early sound tax system. case law in this area. The second approach is probably This can be seen by examining one of the American the easiest to support under strict conformance with tax system's basic doctrines: the so-called "tax benefit" the Internal Revenue Code: there is an annual rule, a rule now partially codified,3 but one that was accounting requirement that makes each tax year a created by the courts and continues to be substantially free-standing unit, and it is clear that windfall gains are developed by the courts. The rule is stated variousl)~ but income. And the second approach to this general for present purposes it will suffice to state it as follows : problem was the one initially approved by the Supreme if a taxpayer recovers'" in one year property or cash that Court in Burnet v. Sanford & Brooks Co. , 282 U.S. 359 had been lost or otherwise disposed of in an earlier (1931). year, the taxpayer has income only to tile extent tilat the The first approach-in which the taxpayer simply event in the earlier year produced a "tax benefit"­ refunds the tax savings when the event on which the which appears to mean nothing more than that it savings were premised proves erroneous-was also produced a reduction in taxable income in the prior endorsed by some case law; in particular, Perry v. United year. Let me illustrate this rule by a not entirely StatesB adopted this approach. Perry has been criticized hypothetical set of facts that closely resembles a 1967 as lacking support in either the statute or the prior case case, Alice Phelan Sullivan Corp. v. United States, 381 law. That is clearly true, but that criticism seems true to F.2d 399 (Ct. CI. 1967). Suppose in year one a taxpayer a considerable degree of tile third alternative-the rule gives $10,000 worth of property to a charitable that inclusion is limited to the amount that produced a organization, that this results in a deduction of $8,000, tax benefit in an earlier year. Indeed, the intermediate and that this deduction reduces tlle taxpayer's tax court in the case that firmly established the tax benefit liability for tilat year by $2,000. Suppose further that in rule-Dobson v. Commissioner, 320 U.S. 489 (1943)­ year five, two events happen: Congress approximately made exactly that criticism of the tax benefit rule. doubles tile relevant marginal tax rates, and tile chari­ By now it is quite clear that courts have chosen the table organization, finding that it no longer has any use third approach-the tax benefit rule-which does for the property, returns it to tile taxpayer. What should manage to count exactly the total taxable income be the tax result, assuming that the property still has a existing in the hypothetical situation I described. Tax­ value of $10,000, and that a court is called upon to able income was understated in year one by $8,000, so determine the appropriate tax treatment without any the corrective action to be taken is to add $8,000 back to explicit guidance from statutes or prior case law;> income in year five, when the recovery takes place. I There are, I dUnk, at least three general approaches would argue that an approach based on the actual to tilis problem, each of which may have some possible amount of the tax saved would be fairer, and an variations. One would be simply to require tile taxpayer approach based on strict adherence to annual to pay $2,000 of additional tax in year five. He saved accounting requirements would be more consistent $2,000 in year one by making what appeared to be a with the Internal Revenue Code, but the courts have permanent property transfer to the charitable focussed instead on finding the right numbers for organization, but it is now known that no permanent taxable income. transfer took place.5 The taxpayer should therefore refund the tax that was saved in year one upon 2. THE ATTRIBUTION PRINCIPLE erroneous grounds. One might also consider whether A second major principle developed almost exclu­ interest should be added to this amount, and how such Sively in the case law of the American tax system may be intere t should be computed.6 called the income artribution prinCiple. Simply stated, it An alternative approach would pay more respect to is that the income belongs to tile taxpayer who earns it, the American system's intermittently strict annual either tilrough personal services or through ownership accounting period. It would disregard entirely the of me capital tilat has produced the return. Again, as DUKE LAW MAGAZINE / 22 stated, this principle seems entirely unobjectionable, principle in place than it would under any alternatives and, indeed, it is generally thought that this principle is that are readily imaginable. Still, nagging doubts persist necessary to protect the progressivity of the income tax. about the looseness of a definition of income that The danger of any contrary principle is well illustrated permits inclusion of amounts a taxpayer will never have by the first major income attribution case, Lucas v: Earl, any rights in, especially where, as in Earl, the taxpayer's 281 U.S. 111 (1930). The taxpayer in that case, Mr. Earl, decisions that produced this result were made long had executed a contract with his wife in 1901 under before these tax consequences could possibly have which they agreed that any earnings of either would be been anticipated. And if this approach is constitutionally owned jointly by both. The date of the contract is of permiSSible, questions still remain regarding the role of some significance, since the agreement was executed the courts, as opposed to Congress, in this area. twelve years prior to the passage of the Sixteenth I think concerns in this area are more theoretical Amendment, which means that a federal income ta,'( than real today: taxpayers are certainly on notice that was neither present nor imminent at the time. transfers of rights sufficient under property law may not Nevertheless, the possibility of splitting one large be sufficient to transfer the tax liabilities asSOCiated with income into two smaller ones to avoid the progreSSive those rights. Occasionally, however, a real case will rates that would otherwise apply to the one large appear that comes close, at least, to raising doubts income was obvious enough once the income tax took about the fairness and propriety of what I have called effect. What was not clear was whether the Internal the aggreSSiveness of the American attribution doctrine. Revenue Service, or the courts, could prevent this tax A relatively recent case that may be of this sort is avoidance. After all, it was conceded that the contract Armantrout v: Commissioner, 570 F.2d 210 (7th Cir. was effective under applicable property law to transfer 1978), in which it was held that financial assistance rights to half of Earl's income to his wife. Could the provided by an employer to college students who were assigned half of his earnings be "income;' constitution­ children of employees was income to those employees. ally and under section 61 of the Internal Revenue Code, To imagine the really troubling case, one must vaty the if he had no right to that half under property law? facts of Armantrout-though not implaUSibly, I Again, there are three general approaches to this believe-to have an employee who has no election situation. The most easily justified approach-and the about whether to participate in this benefit, and who one actually adopted by the intermediate court in has an estranged, emancipated child who qualifies for Earl-is to say that a minimal characteristic of and claims the education benefit. Such a parent would "income" is that the taxpayer has some right to possess enjoy no benefit from the program, but would be it, or at least to control the direction in which it will powerless to avoid the tax liability under the rationale flow. Since Mr. Earl did not, at the time the earnings of Armantrout, which is itself consistent with the other were generated, have any such rights as to the half of his court decisions in the attribution area. earnings owned by his wife, the "income" would have to be hers, not his, under this view. 3. REALIZATION (REVISITED) A somewhat more aggreSSive approach, reflecting As I noted at the outset, it does not appear that there an effort to protect the integrity of the progressive rate is much left of the realization doctrine as a constitu­ structure, could have taken the form of conceding that tional requirement. I do think, however, that courts half of Earl's earnings were his wife's "income;' but at show a great reluctance to improvise when they are the same time insisting that the proper interpretation of faced with realization questions-perhaps because the Congress's rate schedule was that that schedule must be Macomber case, much-disparaged though it is, still casts applied only once, to Earl 's total earnings, with the a shadow over the courts, particularly the lower courts. resulting tax liability split between spouses in the same I see this reluctance principally in some cases proportion as the income was split. where acceleration of realization would seem to have The most aggressive approach of all was the one been an obvious solution to the problem confronting chosen by the Supreme Court: that all the income was the courts in those cases, but where the court in the husband's, and that the full tax liability computed question backed away from such solutions. An example on that income was his as well. One wonders if the is United States v: Midland-Ross Corp. , 381 U.S. 54 (1965), Supreme Court would have been as willing to adopt a relatively modern Supreme Court case in which the this approach if the overall rate of federal tax assessed Court found that gain on disposition of noninterest­ against Mr. Earl had exceeded fifty percent. His tax bearing notes was, in effect, interest income, and not a liability would then have been greater than his share of gain for which the more favorable long-term capital earnings, which would presumably have compelled rates were available. If the gain was interest, however, him to deplete assets accumulated earlier, or to borrow and if there were no realization requirement, why from his wife to pay his tax bill. should the government be made to wait until disposi­ But I do not mean to criticize the Earl decision. It tion of the note to tax the interest income? Yet the does seem to be the easiest way to protect a progressive Supreme Court pointedly refused to consider whether rate structure, and, all things conSidered, the American the tax liability could be imposed prior to disposition. A tax system probably works better with the attribution few years after Midland-ROSS, Congress decided to tax VOL. 4, NO. 1 / 23

so-called "original issue discount" as interest income as the position of various legal specialties on the con­ it accrued each year. tinuum from formal to non-formal. In the American Similarly, it has been clear since the Supreme Court system, one can surely say that real property convey­ decided Heluering v. Bruun, 309 US. 461 (1940), that ancing and the laws of succession are still quite formal: buildings constructed by a tenant on a landlord's it is important that a mortgage call itself a mortgage, property will produce income to the landlord at the and that a will call itself a will. Federal tax law is termination of tl1e lease. In at least some cases (though distinctly at the other end of the continuum, and it got not in Bruun), it is clear that construction of the there because of what judges did to the law in early, improvement is at least a partial substitute for rent. But largely non-constitutional cases. if it is rent in disguise, or even if it is merely windfall As in the other areas, tl1ere are many illustrative gain, why shouldn't it be taxed each year, as tl1e lease cases that could be chosen to demonstrate this. One termination draws nearer?9 The analogy to original case that specifically faced the question was Irwin v. issue discount is clear; and, again in this case, this time Cavit, 268 US. 161 (1925), in which the Court held that more explicitly, the Supreme Court rejected this there was no distinction worth making for purposes of approach. In M.E. Blatt Co. v. United States, 305 US. 267 the exclusion of bequests from income between a gift (1968), a case deCided shortly before Bruun, the Court of income and gift of an interest in an income­ refused to allow tl1e Internal Revenue Service to tax producing fund. The principle continues to be used annually a portion of the value of a tenant's improve­ frequently, and was a prominent part of the Supreme ments, not on tl1e grounds that it was unconstitutional, Court's analysis in the recent Diedrich case. 10 but rather on the grounds that: "any enhancement in tl1e value of the realty in the tax year was not income CONCLUSION It is interesting to speculate about why the develop­ realized by the lessor within the Revenue Act." Thus, the ment of constitutional constraints in the early years of realization requirement, originally a constitutional our income tax was stunted, especially in the light of requirement, found itself appended instead to section the fact that the Supreme Court in the 1920's and 1930's 61 of the Internal Revenue Code, though it would be was generally not reticent about invalidating what it difficult to prove that Congress had ever intended to put thought were unauthorized exercises of power by it there. Congress. It may have been that tl1e Justices, having been mature witnesses to tl1e process of ratification of 4. SUBSTANCE OVER FORM­ the Sixteenth Amendment, understood that Amend­ THE DISREGARD OF FORMALIlY ment to be a repudiation of the Court's previous efforts The last doctrine I will discuss is the notion that the to restrain federal taxing authority, as they had in tax system should focus on what is actually taking place Pollack. That seemed to be Justice Holmes's view when in a transaction-its substance-ratl1er than on the he wrote, in his dissent to Macomber, that: "The known manner in which the transaction may have been purpose of [the Sixteenth] Amendment was to get presented-its form. The fact, for example, that the rid of nice questions as to what might be direct document memorialiZing a transaction is called a taxes ... ." "lease" does not guarantee that it will be treated as a The role of]ustice Holmes himself in preventing the lease, if the circumstances of the transaction indicate vigorous development of constitutional impediments to that it is more like a sale. collection of tl1e income tax appears to have been However, I hesitate to include this in the list of basic considerable. In addition to this dissent in Macomber, doctrines for two reasons. First, the doctrine is he authored several opinions that adopted a broad view overstated. Form frequently matters a great deal. For of what Congress and the Internal Revenue Service example, distribution of corporate assets to share­ could do in refining the definition of income.]] holders followed by a sale of tl10se assets for cash may In any event, as I have attempted to show, the not be treated the same as a sale of tl1e assets for cash vacuum left by the absence of true constitutional law in followed by a distribution of the cash to shareholders. the income tax field has been filled to a fair degree by Second, even when the doctrine seems applicable, it development of the non-constitutional tax common law. often is not very helpful. In many cases, the problem is As I noted at tl1e outset, that case law structure is not a that the substance of a transaction is ambiguous, falling perfect substitute for constitutional structures. However, somewhere between two better-known categories that the structure that has emerged, coupled with tl1e have different tax consequences. In such cases, the restraint shown by Congress, have resulted in a tax substance over form doctrine-though frequently system that is acceptably free, I believe, of the sort of invoked-does notl1ing to help identify what tl1e true abuses by tl1e government that it might have been substance is. thought could only be prevented by a robust set of But I do include the substance over form doctrine constitutional constraints. in my list of case law principles because it seems clear that, while all areas of the law have some formal aspects, and some aspects where formality is disregarded, it is possible to make some meaningful statements about *Professor ofLaw, Duke University DUKE LAW MAGAZINE / 24

1. Tax Reform Act of 1969, Pub. L. No. 91-172, 413(a), 83 Stat. 487, 609-11 170A-1(g) (no deduction for value of services contributed to charitable (1969). organization.) 2. A word of caution may be appropriate here. Though it is generally 6. It would seem that adding interest would be appropriate, but only if believed that the realization requirement-the single significant constitu­ computed at an after-tax rate of return. The taxpayer has presumably paid tional constraint on income definition aniculated by the Supreme some tax on the earnings generated by the tax savings in year one. Only the Court-has lost most of its vitalit)" it is also true that Congress has not after-tax amounts represent gain from the value of the deduction. aggressively sought to explore the boundaries of what is now permissible. 7. This was in fact the central issue in Alice Phelan Sullivan Corp.: a On the few occasions when Congress has enacted s-tatutes that appear to go change in rates caused the t

• VOL. 4, NO.1 / 25 Duke in Denmark

The Duke University Law School, for the European partiCipants, and property subjects (patents, trade­ in conjunction with the University of others are designed primarily for the marks, software). These seminars Copenhagen, is offering a four-week American partiCipants. The schedule will be taught by some of the most educational program this summer at for the program of instruction is as well-known and distinguished law­ the University of Copenhagen. Law follows: yers in their areas of specialty. law­ faculty for the program are from yers who do not partiCipate in the both American and European univer­ INSTRUCTION PRIMARILY FOR four-week program will be per­ sities and participants in the program AMERICAN PARTICIPANTS mitted to enroll separately for these 9:15-10:15 AM will be primarily from the United one-week seminars. Introduction to EEC States and Europe. The purpose of The International Commercial (Institutional Organization and Sub­ the program is to bring lawyers and Transactions course will also include stantive Law) faculty together from both the United a segment on international arbitra­ 10:45-11:45 AM States and Europe for an intensive tion, including a discussion of the International Commercial educational experience in an envi­ use of the International Chamber of Transactions ronment in which they can work and Commerce in Paris and the Stock­ 1:30-2:30 PM learn together, comparing European holm Chamber of Commerce. European Intellectual Property and American law in selected sub­ Three Duke alumni will partiCi­ 2:45-3:45 PM jects important to lawyers engaged in pate as faculty in the program. European Antitrust an international business transac­ Edward Rubin,].D. 1936, will teach tions practice. Opportunities will one of the entertainment law sem­ also be provided for the participants INSTRUCTION PRIMARILY FOR inars, giving five hour-long lectures to see and learn about legal institu­ EUROPEAN PARTICIPANTS on motion pictures, televiSion, and tions in Denmark itself and to enjoy 9:15-10:15 AM the new technologies, organized Investment in the United States primarily around the theme of inter­ one another on excursions in 10:45-11:45 AM Copenhagen and Denmark. Various national deal-making. William Introduction to US. Legal System aspects of the program are described Patterson, LL.B. 1950, will teach some through Labor Law in more detail below. of the classes on inbound real estate 1:30-2:30 PM Date. The program opens with a investment in the U.S. in the course US. Antitrust meeting and reception of partici­ on Investment in the United States. 2:45-3:45 PM Robert Pringle,JD. 1969, will teach pants and faculty on Sunday, July 6. US. Intellectual Property The instruction begins Monday the intellectual property seminar on morning, July 7, and continues for Instruction in antitrust and intel­ trademarks and so-called "gray" four weeks, ending on Friday, lectual property is a primary goods. August 1. emphasis of the program. The Organization, Administration, Participants. Enrollment is schedule permits a participant to and Faculty. Professor Pamela Gann planned for seventy-five lawyers take both the US. and EEC antitrust is the Duke director of the program. -half from the United States and courses, or both the intellectual Judy Horowitz, who administers our half from Europe. Enrollment is not property courses, or to take one of law program for international stu­ limited, however, to lawyers from each. During the final week of dents, will also administer this these geographical areas. instruction the antitrust classes will program. A program like this one Program oj Instruction. All combine to study comparative EEC could not be organized without the classes will be held at the University and US. antitrust law. substantial contribution of persons of Copenhagen, which is located in Also during the final week, the in Copenhagen and the UniverSity of central Copenhagen, and conducted intellectual property classes will be Copenhagen. Dean Claus Gulmann in English. Written materials for each combined for purposes of a seminar of the UniverSity of Copenhagen law course will be provided to the program organized by Professor department is teaching the course participants on Sunday, July 6. David Lange. The participants will on the introduction to the EEC and Classes will meet on Monday be offered a chOice of eight semi­ is handling all the arrangements through Friday for the four-week nars in intellectual property-five with the UniverSity of Copenhagen. period. Two courses will be offered pertaining to entertainment law Marianne Philip and Per Schmidt, at each class period, and participants (motion pictures, music televiSion, graduates of the University of Copen­ can elect between the two courses. publishing, theater) and three per­ hagen and graduates of our LL.M. Some courses are primarily designed taining to other types of intellectual program in 1983, are also helping us DUKE lAW MAGAZINE / 26

make all the local arrangements in Housing. Participants in the four­ Copenhagen. week program will live at Shaffer­ Faculty from the law school gaarden, an estate owned by the include James Cox, Pamela Gann, Danish Norwegian Society It is situ­ Donald Horowitz, and David Lange. ated in a park just north of Copen­ Professor Tom Kauper of the Univer­ hagen, close to both forests and to sity of Michigan, and former Assis­ the beach. tant Attorney General, Antitrust Excursions and Other Events. Division, US. Department ofjustice, The four-week program includes will teach the US. antitrust course. weekly lunches, opening and closing European faculty include, in addi­ receptions, a trip to the Denmark tion to Dean Gulmann, Professors Supreme Court, and two weekend Joseph Lookofsky, University of excursions outside Copenhagen. Copenhagen; Ulrich Immenga, Uni­ Information. We hope that Duke versity of Gbttingen, West Germany; alumni will participate in this pro­ and Wernhard Moschel, University gram. For more detailed informa­ of Tlibingen, West Germany Pro­ tion about the four-week program, fessor Immenga, who is a member or the one-week seminars in intellec­ of the German Monopolies Com­ tual property, please write to Judith mission, will teach the comparative Horowitz at the Law School. Pamela Gann EEC and US. antitrust course. VOL. 4, NO. 1 / 27 Faculty Travellers: Summer 1985

In the wake of the Cultural much interest in value in the new Revolution, China experienced a friendships that may be formed dearth of trained legal professionals during the four weeks of the and educators. However, China is session." clear~v in the midst of what one A diverse student body was defi­ professor termed the "renaissance of nitely achieved. The sixty participants legal education" and Duke Univer­ included staff members of seventeen sity Law School is taking an active law faculties, a judge of an interme­ role in educating Chinese legal diate appeals court, an administrator professionals, both in the United in the Foreign Trade Department of a States and in China. provincial government, three staff Since the establishment of diplo­ members of the People's Bank of matic relations between the United China, an official of the Supreme States and China in 1979, China has Procuratoriate, a lawyer in the Chi­ prioritized the expansion of law nese Patent Office, and the former faculties. In only a few years, institu­ defense counsel for Jaing Quing, the tions providing legal training have widow of Mao Zedong, when she grown in number from three to was prosecuted as a member of the more than forty. In addition, the now notorious Gang of Four. Approx­ number of "law workers" has Paul Carrington imately half of the participants of the increased from three thousand to 1985 session expected to engage in more than nine thousand in the academic enterprise in the United same period and is expected to primary objective is furthering the States during the subsequent aca­ reach 500,000 by the year 2000. work of Chinese law workers who demic year. China's international trade has ex­ are planning to come to the United Many new friendships were panded, and the country is presently States for advanced study or re­ formed both in the classroom and on reacting against the historic family search. The need for such a program a more informal level as professors and cultural ties which have held the was recognized by scholars at Amer­ and partiCipants lived in the san1e society together without resort to a ican law faculties, who found that hotel, travelled together by bus, or traditional legal system. Chinese students, whatever their met individually or in small groups. During the summer of 1985, four intellectual quality, often lost many In addition, there were "educational Duke professors taught in China. months becoming sufficiently ori­ excursions" on Saturdays to inter­ Paul Carrington, William Van Alstyne, ented to the American method of esting locations such as a penitentiary, and Pam Gann participated in a the legal education. Thus, the summer a court, and a major industry that first session of The China Center for program was designed to give Chi­ functioned for all intents and pur­ American Law Study at Jilin Law Fac­ nese visitors a running start before poses as a local government and not ulty in the ancient Manchurian cap­ they arrived in the United States. merely as a manufacturing enterprise. ital of Changchun. The four-week At the same time, the sponsors of Paul Carrington and William Van program was sponsored by the Com­ The China Center for American Law Alstyne, along with Whitmore Gray mittee on Legal Education Exchange Study were eager to welcome others from the University of Michigan, pro­ with China (CLEEC)! in conjunction who might never come to the United vided the bulk of formal instruction with the Chinese Ministry ofJustice , States, but whose present or future at The China Center for American the Chinese Commission on Educa­ professional work might be fur­ Law. Three courses, Civil Procedure tion. In addition, George Christie thered by acquaintance with Amer­ (Carrington), Constitutional Law was invited to teach at Fudan Univer­ ican law and methods. The Center (Van Alstyne), and Legal Method Sity in Shanghai and People's Univer­ sought to attract "not only academic (Gray), were required. In addition, Sity in Beijing. personnel of every age and status, International Business Transactions The stated purpose of The China but also government and enterprise and International Commercial Arbi­ Center for American Law is to give officials .. . . We believe that a varie­ tration were optional course offer­ Chinese juriSts and legal scholars "an gated group of persons drawn from ings and supplemental lectures on a introductory understanding of the many areas of China, with diverse variety of topics were available. origins, structures, methods, and purposes and with different back­ Although the program was very administration of American law." Its grounds of experience, will find demanding and each day included DUKE lAW MAGAZINE / 28 three hours in class plus preparation "democratic centralism" controls, 1985 China Center for American Law in a foreign language, voluntary and civil rights are controlled by the Study consisted of travel expenses, attendance at supplemental lectures people's representatives who are including one week df travel in was generally high. Dean Carrington instructed by tl1e Communist Party China. Altl10ugh few of the cheerful spoke to the students about the In China, legal research and people on the bustling streets spoke organization, training, and function training occurs through four parallel English, they seemed always eager to of the American legal profession and systems. The Ministry of Education help their American visitors. Dean examined the role of the modern supervises approximately forty law Carrington travelled by both plane university law school as a center of faculties in comprehensive universi­ and train to visit friends he had made profeSSionalism in the United States. ties. More than half of China's legal on his 1984 trip to China. In addition Professor Van Alstyne introduced specialists are trained under the aus­ to these more familiar means of some currently contentious issues of pices of the Ministry ofJustice in four transponation, Professor Van Alstyne social rolicy, such as abortion, that institutes and one university of law and Gann spent three very hot and have taken on constitutional dimen­ and politiCS. In addition, a relatively very interesting days travelling by sions in the United States. The issues small number of lawyers and boat on the Yang Tze River. surrounding abonion are very dif­ researchers are trained by the Chi­ Professor George Christie also ferent in China where the govern­ nese Academy of Social Sciences and spent four weeks lecturing in China, ment "encourages" abortions as a the Ministry of Foreign Economic predominantly at Fudan University in means of population control. The Relations and Trade. Many of the top Shanghai and also at People's Univer­ abonion decision in Roe v. Wade graduates of these institutions find Sity in Beijing. His series of lectures was also used to demonstrate how jobs relating to foreign trade and to graduate law students provided an tl1e Supreme Coun could engage in investment. The highest concentra­ overview of the American law of "politics" through the interpretation tion of academically trained lawyers torts. In addition, he panicipated in of nebulous concepts and terms. can be found in the legal depanment small group meetings with faculty Professor Gann lectured about of the Ministry of Foreign Affairs, and students. Because of the expand­ bilateral trade agreements witl1 spe­ while another large group finds ing trade between the United States cial reference to the policy differ­ employment with trust and invest­ and China, students seemed espe­ ences that have thus far precluded an ment companies. In addition to gov­ Cially interested in products liability accord between China and the ernment organizations and trust law as it applied to both Chinese and United States. One example of companies, law firms have recently American products. widely divergent points of view can been established. Many things have changed in be seen in the ways the two countries The difference in legal teaching China since Professor Christie was screen investments. In China, govern­ methods was noted by all the visiting there in 1978. He was especially ment approval must be obtained American scholars. Chinese instruc­ struck by the economic dynamism of before a foreign company is allowed tion consists predominantly of didac­ China today. Greater material wealth to make an investment. However, tic introduction to broad prinCiples. seemed apparent from the increase tl1ere are many ways in which the The viSiting professors found that in building activity and the fact that two countries are moving closer classroom discussions tended to be people appeared to be eating better. together as China opens up its less lively tl1an at Duke. Chinese In addition, American tourists were economy by making foreign invest­ students who were unfamiliar with much less of an oddity and Chinese ment more attractive. the American case method of clothing styles were much more Dean Carrington noted that teaching expressed the wish that Westernized than they had been along with increased international their instructors had stated "more seven years ago. However, Professor trade, especially with the United firm conclusions" or had "systematic­ Christie believes that the more States and Japan, another reason for ally told what the law is." Dean inchoate Chinese law of torts is the proliferation of legal profes­ Carrington commented that many of unlikely to follow this trend toward sionals can be identified. The period the students initially had difficulty Westernization, especially in the between 1966 and 1976 known as the locating or understanding tl1e judge's areas of psychological and emotional Cultural Revolution seems to be gen­ holding in a panicular case. However, torts which have been evolving in the erally regarded as a negative era it seemed the students had mostly United States. when individual rights were minimal. cleared over that hurdle by the time Pam Gann is very affirmative The existence of lawyers is thought he finished his two-week course on about the Duke program for foreign to be one way in which government civil procedure. Perhaps the intro­ students which has attracted a large power can be kept in check. duction to methodology was even percentage of the Chinese students However, Professor Van Alstyne also more valuable than the substantive studying in the United States. 2 She stressed that even though there is a course material, especially for the believes Duke is "serving a very bill of rights in the 1982 Constitution, students who planned to study law in useful function since concepts such Chinese legislation is not subject to the United States. as capitalism, free markets, securities, judicial review. Rather, the concept of Remuneration for teaching at the and anti-trust are very much foreign VOL. 4, NO.1 /29

ideas to the Chinese." These con­ his way and enabled him to travel cepts become especially important around the country His Fulbright as they move from the teaching facili­ research was on the New Zealand ties into Chinese law firms which are accident compensation scheme. He working with foreign investors or met with government officials who representing foreigners in the Chi­ administer the scheme, including the nese court system. Deputy Prime Minister and Attorney Duke Law School students and General, Geoffrey Palmer, and the faculty who remain in the United president of the Court of Appeal, Sir States also have a chance to benefit Owen Woodhouse. Mr. Christie plans from the increasing presence of Chi­ to use the results of his research to nese students who come to North expand an already existing section in Carolina to receive ].0. degrees. The his torts casebook on the New Zea­ cultural exchange not only provides land Accident Compensation Act. the potential for new ideas and pro­ Two of Mr. Christie's children, fessional ties; it is also a connection Martin Golding Serge and Rebecca, joined him for with the radical changes occurring in ten weeks during the summer. While China, which Dean Carrington National University in Canberra. they were there, Serge, who is believes to be "the most exciting Topics of these lectures included thing happening to law in the twen­ "Discovery and Justification in Sci­ tieth century" ence and Law," ''Aesthetics in Legal Dean Carrington is not sure what Reasoning;' and "The Idea of Moral role Duke Law School will playas Pathology" In August, Professor Gol­ China continues to respond to ding participated in conferences changes in its culture and govern­ held in Jerusalem and Athens. In ment, but he has found his involve­ Jerusalem he delivered a paper on ment with China and its students to "Maimonides and the Theory of be both "interesting and fun." Legal Reasoning" at the Second Inter­ Although China has had the same national Seminar on the Sources of leaders for the past thirty years, the Contemporary Law: Maimonides as government is in the process of Codifier of Jewish Law, which was changing, and leaders are now sponsored by the MinistlY ofJustice younger. Many of these current of the State of Israel. In Athens, he leaders, who are in their fifties, were spoke on "The Presuppositions of educated in the Soviet Union when Rights Discourse" at the Twelfth U.S.-Chinese relations led China to World Congress of Legal and Social greater involvement with the U.S.S.R. Philosophy Now that more Chinese students are Professor George C. Christie being educated in the U.S., Europe, spent four months during the George Christie and Japan, Duke Law School is in a summer of 1985 lecturing on torts position to playa major role in this and jurisprudence in New Zealand. trend. He replaced Professor John Smillie, seventeen, attended art college and Professor of Philosophy and Law, who had been a visiting professor at seven-year-old Rebecca went to Martin P. Golding, was a viSiting Duke Law School in the spring of public school. The Christies spent a senior Fulbright lecturer in Australia 1980 and who was on leave in week at the end of the summer for six weeks during June and July Canada for last summer's term. Mr. travelling in Australia. They visited He gave lectures in two courses on Christie lectured at the University of friends in Sydney, and in Melbourne jurisprudence at the University of Otago in Dunedin, which is in the they saw Ronald McCallum, who is a Sydney, and delivered a paper on southern part of South Island. The former viSiting Duke Law School "Community and Rights" to a University of Otago is the oldest uni­ professor. meeting of the Australian Society for verSity in the country. While he was 1. In December of 1984, Dean Paul Carrington Legal Philosophy held in Sydney In there, Mr. Christie also lectured at the was unanimoush' elected to be a member of the addition, he spoke at Law faculties of only other three law schools in New Committee on Legal Education Exchange with the universities of New South Wales, Zealand: the University of Auckland, China (CLEEC), which is an organization of Alner­ iean law professors who seek to strengthen cul­ Melbourne, Adelaide, and La Trobe, Victoria University in Wellington, and tural and professional relations with China. to the Philosophy Department at Canterbury UniverSity in Christ­ 2. Compared to [he ten PRC students currenth- Queensland, and to the Research church. enrolled at Duke Law School, nine in the].o. . program alone, there are about nine Chinese School of Philosophy and the Philos­ Mr. Christie went to New Zealand students enrolled in other ].D. programs in the ophy Department of the Australian on a Fulbright travel grant that paid U.S. DUKE lAW MAGAZINE / 30

Book Review Ethnic Groups in Conflict by Donald L. Horowitz

Most ofProfessor Donald L. Horowitz's profes­ sional career has been devoted to researcb, although he has also served as a judicial law clerk and as a government lawyer. He received his A.B. and LLB. degrees from Syracuse Unil'ersity, and earned the LL.M. M.A., and PhD. degrees at Harvard. He has held re­ search appointments at the Harvard University Center for International Affairs, at the Brookings Institution, and the Smithsonian Institution. His work on ethnic conflict in Asia and Africa, supported by the Guggen­ heim Foundation, featured extended field work in Nigeria, Sri Lanka, and Malaysia. Horowitz's new book, reviewed here, is published by the University of California press. Tbis past summer Horowitz spoke on the subject of ethnic conflict and violence in a National Public Radio "Soundings" broadcast. Tbis fall he was interviewed on the subject ofBritish and American race riots and race relations for the British lTV program, "Weekend World." In September, he delivered a paper on '77Je Reduction qf Interethnic Conflict in DeLleloping Countries" at a conference on intergroup relations sponsored by the Human Sciences Research Council in Pretoria, South Jlfrica. His wife, International Advisor Judith Horowitz, accompanied him on that trip and gave a series of lectures on American higher education at Vista Univer­ sity in Soweto, the University ofNatal in Pietermaritz­ burg, the University ofSouth Africa, and Rand Donald Horowitz Jlfrikaans University Professor Horowitz was recently appOinted to a Carnegie Corporation committee on social reform in South Africa. His speech on South /ifrica, presented at national Relations" section of this issue of the the Law School this fall, is discussed in the "Inter- Magazine.

The recurrent hostilities in Northern ism, Corsican tenurism, Palestinian Ireland, Chad, and Lebanon; secessionist tenurism; the expulsion ofChinese from warfare in Burma, Bangladesh, the Sudan, Vietnam, ofArakanese Muslims from Nigeria, Iraq, and the Philippines; the Burma, ofAsians from Uganda, ofBenin­ Somali invasion ofEthiopia and the Turk­ ese from the Ivory Coast and Gabon; ish invasion ofCyprus; the army killings ethnic riots in India, Sri Lanka, Malaysia, in Uganda and Syria and the mass civilian Zaire, Guyana, and a score ofother coun­ killings in India-Pakistan, Burundi, and tries-these comprise only the most Indonesia; Sikh terrorism, Basque tenur- violent evidence ofethnic hostility. VOL. 4, NO.1 /31

ndorsed by political scientist Samuel P. Having created an awareness of ethnic ties where Huntington as a brilliant "landmark work;' little appreciation may have previously existed, Professor Donald L. Horowitz's Ethnic Groups colonialism further encouraged ethnic divisions by E in Conflict explores the relationship between establishing occupational niches for various groups. ethnicity and the political systems of severely divided Often a group of people would be singled out as good societies. In a comprehensive study of the nature of soldiers. Others, who perhaps were located near the ethnic affiliations, the sources of ethnic conflict, and the colonial capital, were mission educated and so drafted impact of ethnic conflict on party and military politiCS, into the civil service. Yet other groups (sometimes the author probes questions such as: What is it about brought in from far-flung colonies) were used as ethnic affiliations that makes them conducive to severe traders and plantation laborers, and others left in their conflict? Why does ethnic conflict tend to be more rural settings as subsistence farmers. The result of this intense and violent in Asia and Africa than in Europe and North America? What relationship does ethnic conflict bear to social-class conflict and why do ethnic groups attempt secession when it appears they would have much to lose by leaving the undivided state? Using There is much more scope for constructive case studies of political developments in Lebanon, Nigeria, Sri Lanka, and numerous other countries, the policy innovation in the area of ethnic author shows why conCiliatory poliCies have failed and conflict than policy makers in divided indicates promising methods of ethnic accommodation and "coup-proofing" in ethnically segmented societies. societies have generally acknowledged Donald Horowitz breaks new ground in providing all-embracing principles for the tudy of ethnic group Ethnic problems are intractabl~ but they relations. He notes a'lag in the understanding of ethnicity due to the fact that eruptions of violence are are not altogether without hope. frequently studied alone rather in the context of similar occurrences worldwide. His comparison focuses on states in Asia, Africa, and the Caribbean which received their independence during or after the Second World differentiated treatment, according to Professor Horo­ War. In such states, he says, questions such as "Who are witz, was the creation of group comparisons. Some you?;' "What is your nationality?" and "What is your groups sensed that they were "backward;' since they country?" uniformly evoke ethnic responses. While came from rural regions and were not mission European societies are also divided along regional, educated. With the advent of independence, these class, and religiOUS lines, diffusing the bases of conflict, groups feared that ethnic strangers, who had learned in the societies of the developing world, there is a less the ways of dle colonists, would deny them political complex pattern of group loyalties and divisions. Politi­ participation. Such exclusion, they assumed, would cal parties are formed on the basis of ethnicity, lead to domination by the outsider group. Thus, the and "unranked" groups, that is, groups which are not greater the perceived inability or undesirability of presumed to be superior or inferior in all respects to "catching up" with those groups versed in colonial others, engage in the struggle for centralized power. ways, the greater the interethnic tension. Why is ethnicity chosen as dle basis for cleavage? Professor Horowitz states that the goal of ethnic Professor Horowitz notes that ethnicity, which he groups in divided states, therefore, is to shift the describes as "a family resemblance;' is used by balance of political power in dleir favor. He cites five individuals in developing countries to help smoodl the explanations put forward by ethnic groups in newly transition from traditional to modern institutions and independent states to justify their political preeminence: economies. For instance, an individual villager in the (1) Prior occupation of the territory/indigenousness; (2) pre-colonial era considered most non-villagers strangers. a special mission (generally religiOUS in character); (3) When the colonists imposed territorial boundaries traditional rule; (4) the right to succeed the colonial many times the size of preViously existing borders, power by those best able to fill its shoes; and (5) dle however, individuals were introduced to strangers right to succeed the colonial power by those who had much more frequendy than before. Thus thrown made the most sacrifices to rid the country of the together, individuals began to discover resemblances colonial power. The conflicting nature of such claims is between themselves and dlose whom they would have apparent. When coupled with shifts in the balance of preViously classified as outsiders. Language, religion, influence due to demographic changes, claims to politi­ and similar factors all became part of an ethnic identity cal priority can be explOSive. Ethnic group members were then ready substitutes for The author notes that actual hostilities often surface family when reciprocal help was needed in coping with over symbolic issues. Bitter quarrels occur, for instance, the larger environment. Group members performed all over ~hose language and religion will become the of the functions of family on a larger scale. official language and the national religion, who will DUKE lAW MAGAZINE / 32 occupy the post of university president, and what name which blocks access of other ethnic groups to the will be given to a particular town or region. Since the political process. This is especially likely during the rule struggle is one for greater ethnic group status, such of a military government. The second is when ethnic issues show how each group is faring in relation to the group members are lost through assimilation with others. An illustration of the situation is recounted from other groups, and ethnic strangers migrate into the the history of the United States: the temperance move­ potentially separatist region. Both conditions exacer­ ment distinguished nativist, Protestant, small-town bate the fear of extinction. groups from immigrant, Catholic, urban groups. The The only successful secession which has occurred state was used to take symbolic action, indicating the since the Second World War, however, has been that of higher status of the former and degrading the latter. Bangladesh. Professor Horowitz accounts for the failure Where groups are territorially separate from each of wars of separation by noting the failure of consistent other, why does such ethnic friction not result in foreign support for separatist groups. Foreign successful secessionist movements? What kinds of governments, he states, are inhibited from aiding rebel groups attempt to secede and under what circum­ forces by both internal and international political stances? Professor Horowitz states that, as a general pressures, and by fear of contagiOUS separatism in their rule, when a secessionist movement will emerge is own countries. The government of the rump state, determined by domestic politiCS, but when it will moreover, often obtains its own foreign aid, and succeed is determined by the balance of international attempts to exploit divisions between various rebel forces. Because backward groups in backward regions armies. are the most fearful of competition in a Single arena For similar reasons, irredentism (the retrieval of with their advanced neighbors, they are likely to ethnically kindred people and their territory across an attempt a secession soon after independence. Despite international border) has generally failed. While the the low success rate and despite the fact that loss of desire to retrieve ethnic kinsmen across territorial subsidies from the center will cause economic borders is great, the political costs are high. It is hardship, such groups typically choose to suffer rather remarked that the states which undertake irredentas are than to try to compete with advanced groups. A com­ led by leaders ethnically akin to the groups which they mon grievance of backward groups after independence are attempting to retrieve. One example is Libya, whose is that ethnic strangers are sent as government adminis­ Colonial Qaddafi has family roots in Northern Chad. trators to their regions. Groups that are educationally Though separatist and irredentist groups have not and economically advanced in relation to their neigh- reached their primary goals, however, they have affected the political structure of their societies. Professor Horowitz moves from his discussion of ethnic affiliations and the sources of conflict to describe Whether and when a secessionist move­ political structures in ethnically divided societies. He begins by analyzing why political parties in severely ment will emerge is determined mainly divided societies split along ethnic lines, even when such a split means perpetual minority status for one of by domestic politics, by the relations of d1e participants. Since politicians generally aspire to political power, their deciSions to form minority groups and regions within the state. parties seem paradoxical. Professor Horowitz unravels d1e paradox in terms of a peculiar electoral logic Whether a secessionist movement will operating on party leaders in severely divided societies. They come to fear that, if they do not organize political achieve its aims, however, is determined parties along ethnic lines, some other leaders will do largely by international politics, by the so first and, by so doing, steal their following, leaving them with nothing. So the move to ethnic balance of interests and forces that parties, even when that means a minority position and exclusion from power, is explained by the logic of the extend beyond the state. situation in which politicians find d1emselves, despite their best intentions. Parties which stubbornly try to preserve their multiethnic following do indeed tend to be outflanked by parties which cater to the interests of bors are less likely to attempt secession; however, a single ethnic group. These monoedmic organizations, separatist organizations may emerge if such groups are which exhibit more of the characteristics of pressure forced out of their jobs in other regions or are required groups then those of political parties, reduce compro­ to subsidize the benefits given to ethnic strangers. mise between ethnic groups. The examples of Guyana Two conditions which are exceptionally conducive and Trinidad illustrate a progression from multied1nic to the formation of secessionist movements are parties to single ethnic parties, politically polarized. mentioned. The first is when a regime is in power Where two major ethnic parties are pitted against each VOL. 4, NO.1 / 33 other, these examples show that there is a high be temporary in nature, easily affected by the slings and incidence of ethnic voting, violence against deviant arrows of the political climate. The third type of voters, and high voter turnout leading up to a "census­ coalition, though difficult to bring into being, is worth ype" election. Once it appears that a minority group the effort. Two steps must be taken to secure such a will be permanently shut out of power via the electoral multiethnic alliance: (1) The "pure contractualism" process, it seeks other means of attaining ethnic group which characterizes the other two types of coalition preeminence. must be surmounted, and (2) effective steps must be The Horowitz description of party politics in such taken to limit the coalition's vulnerability to centrifugal societies leaves no room for theories of class conflict: forces. When centrifugal forces take over and one "Over and over again, socialists intellectuals in the ethnic group cuts the others off from access to developing world have organized parties intending to government, the regime in power invites the occur­ do battle on class lines, only to find that their potential rence of a "seesaw" coup. followings had rather different ideas about the identity An extensive analysis is made of the militarization of of the enemy." Even popular candidates for office who ethnic conflict in the fourth part of the book. The run on a nonethnic ticket repeatedly lose to those who formation of armies during the colonial period is first firmly assert ethnic claims. Ethnic party politicians, too, examined to show that current ethniC composition of military groups is typically not the same as the ethnic composition of civilian governments. Rural, backward groups were used by colonial governments to keep Among the most important needs met by urban, advanced groups in check. At independence, when advanced groups obtained pOSitions in civilian ethnicity is the need for familiarity and government, rural groups sometimes composed mo t of the officer corps of the military. Alternatively, if community, for family-like tie~ for backward groups came to power, advanced groups with the educational qualifications for officer training in emotional support and reciprocal help, England or France might dominate the officer corps. Civilian leaders often undertook the thankless task of and for mediation and dispute resolution changing the ethnic composition of the military to -for all the needs served by kinship, but reflect the ethnic composition of the regime. For their efforts, they were rewarded by being removed from now on a larger canvas. office by a disgruntled soldiery. Two types of ethnic coups are described in some detail by Professor Horowitz. The first is the "seesaw" coup: a sudden drastic shift in the balance of ethnic are said to be aware of the costs of moderating ethnic power. It often follows "census-type" elections, which demands. Rival language or religiOUS unions are likely demonstrate that one ethnic group will be permanently to accuse them of selling out the group's cause. The in opposition to the government. The minority group consequences for a leader of being labeled an ethnic changes the electoral outcome via military force. The traitor are that the leader will lose most of his electoral second type of coup is the coup of attrition: overthrow support, find himself unable to diversify his clientele, of the government is achieved by military force, then and be permanently out of office. Thus, ethnic party one group within the military attempts to exclude all systems which do not include methods of braking others. As a result, a very small ethnic group comes to increasingly insistent ethnic group demands are apt to rule the whole country. For example, the coup con­ freeze with one group in an electorally unchangeable ducted by Idi Amin in Uganda led to a series of coups of position of dominance. The author notes that when attrition. Amin's group, the Kakwa, comprise only two electoral systems lose their fluidity, they become prone or three percent of the Ugandan population. to violent change. Military intervention, according to the author, does Professor Horowitz suggests that political systems not solve the problem of ethnic exclusion from which mandate the formation of multiethnic coalitions government. Rather, as an extension of civilian politics, are the most durable in severely divided societies. He it retains the same weakness, lack of fluidity, which distinguishes, however, between three types of caused discontent with the civilian government. Civilian coalition: (1) The coalition of convenience, created after regimes attempting to protect against coups may actu­ an election in order to form a government, (2) the ally bring them about by creating a sense of insecurity coalition of commitment, negotiated before an election within the military, but the author lists five methods of in order to form a government and reduce ethnic "coup-proofing" which are commonly used: (1) Ethnic conflict, and (3) the alliance, constructed before an homogenization of the army and (2) creating an ethniC election in order to form a government, reduce ethnic balance within the army. Both of these methods are tenSions, and exist as a permanent entity. The author effective, but tampering with patterns of military asserts that the first two types of coalitions are liable to recruitment and promotion carry high risks. (3) Creat- DUKE lAW MAGAZINE /34

ing a balance outside the army by forming or strength­ first be overcome. Among these are the unwillingness ening various ethnically homogeneous elite troops; this of the leaders and their principal supporters them­ causes intermilitia rivalry and mutual suspicion. (4) selves to promote ethnic accommodation, and the Reliance on foreign forces. This is rarely an adequate uncompromising nature of ethnic demands. It is argued method of coup-proofing in itself, although it may tip that the timing of conciliatory measures is important: a the balance of power in a ruling group's favor. (5) recent experience, painful for all groups, may create a Kinship control. This method has limited effectiveness propitious moment for the restructuring of accom­ and shows insecurity. When a civilian power attempts to modative poliCies. Two types of measures are analyzed: intervene in military affairs, the author cautions, inter­ those which aim to redistribute economic benefits and vention should be either very subtle or very thorough. thereby reduce disparaties between ethnic groups, and those which aim to reshape territorial or electoral arrangements and so decrease interethnic competition for the seat of power. The latter measures include (1) Many of the puzzles presented by proliferating the points of power, for example, by separating institutions as in the United States or by ethnicity become much less confusing separating territories and creating local bureaucraCies, (2) divising electoral inducements for coalition, such as once we abandon the attempt to discover proportional representation, and (3) encouraging align­ the vital essence of ethnicity and instead ments based on interests other than ethnicity. Because of tl1eir immediate benefits, such structural changes are regard ethnic affiliations as being less risky than redistributive measures. The author notes, however, that policies which attempt to redress located along a continuum of ways in the economic imbalance between groups through pref­ erential treatment are often adopted despite their heavy which people organize and categorize political costs. He describes the dangers inherent in discriminatory measures and hints that long-term themselves. At one end, there is voluntary investment policy may be a better solution to such economic grievances. membership; at the othet; membership Professor Horowitz concludes that although democ­ racy is exceptional in severely divided societies, it is given at birth. worth protecting and fostering. Second chances to avoid conflict through democratic institutions may come along, but the obstacles arrayed against such What can be done to reduce the severity of ethnic institutions will then be greater tl1an they were earlier. conflict and maximize the likelihood of interethnic He emphasizes that uncontrolled ethnic conflict is not cooperation? The author says that several barriers to inevitable, and he closes by noting that "ties of blood political innovation in severely divided societies must do not lead ineluctably to river of blood."

DUKE LAW MAGAZINE / 36 The Program for International Students

he Law School's program in American law studies for international students has undergone changes in both size and depth in the past five years. In 1981, at the time of JudyT Horowitz's arrival as international advisor, the program consisted of ten international students: two candidates for the].D. and eight for the U.M. (Master of Laws). Presently, forty-five international students attend the Law School. Last year the Admissions Office received 525 requests for information about the U.M. program, 115 completed applications, and out of thirt:\,- five offers of admission, seventeen were accepted. . Program manager and catalyst of international developments at the School, Horowitz attributes the growth to a conscious effort on the part of the adminis­ tration to shift the program "from an ad hoc position" to one more prominent in the Law School. Horowitz makes sure that word of the high quality of the inter­ national program Circulates widely "Foreign students go back with good reports about the program, and others become interested;' explains Horowitz. By con­ necting potential applicants with Duke alumni in their area, Horowitz furthers the networking process. "Quick responses to student requests for information and more personal contact" are also viewed as factors in judy Horowitz the high acceptance rate. Indeed, several international students pinpointed the comprehensive and personal replies to their letters as significant in their decision to advisors and discusses course selection wid1 d1e stu­ apply to, and eventually attend, Duke. dents. Horowitz also arranges special group sessions One of Horowitz's primary functions as coordi­ as needed on how to take notes, for example, or how nator of the international program is to evaluate student to study for exams. On a personal level, she deals with applications. An obvious precondition for admission is adjustment problems, language difficulties, and practical proficiency in English. To determine applicants' English questions of how to obtain medical care, insurance, skills, scores on the TOEFL (Test of English as a For­ and schooling for the student's children. eign Language), as well as personal statements and As more international students are seeking jobs in letters, are considered. Evaluating the academic back­ this country, Horowitz has operated increasingly as a ground of students from overseas is more difficult professional counselor as well. The U .M. entitles the because grading systems differ from country to country holder to nine months of practical training in the However, given her familiarity with foreign educational United States. Although American law firms are pre­ systems, Horowitz is able to assess the record of an dictably reluctant to invest in an individual who is to international applicant in much the san1e way as an remain with them for only a short time, Horowitz finds American's. Relevant factors include the quality of the tl1at the right amount of persistence will uncover firms student's university, class rank, honors and scholar­ receptive to the opportunity of employing a foreign ships, and faculty recommendations. lawyer. Firms with European branches, connections, or With the arrival of d1e students, Judy Horowitz's role clients, of course, have proven to be the most amen­ develops into one of counselor and advisor of each able. "Once tl1ey understand the needs of foreign individual international student. Working with Interna­ students;' H,Orowitz points out, "they are responSive tional House, an umbrella organization of all the inter­ and helpful." national programs at Duke, Horowitz coordinates the The principal challenge for many international orientation of the student to the Law School, the students at Duke is to integrate into the intellectual life University, and the United States. She assigns faculty of the School and to get to know American students on VOL. 4, NO.1 / 37

a social and personal basis. Horowitz hopes that as increasing the level of interaction. Horowitz notes, the international program becomes more central to the however, that integration is largely a matter of indi­ Law School, a greater amount of interchange will occur. vidual effort-on the part of both the American and The recent revival of the International Law SocietY, for the international student. instance, holds promise "as a major organization' Horowitz is also involved in the administration of for international and American students;' saYs Horowitz. an exciting new Law School program called Duke in She encourages the students to pursue other interests Denmark. With Professor Pamela Gann, Horowitz is they have in common with Americans such as partici­ developing a four-week summer course in Copen­ pation in intramural soccer and rugby The big sib pro­ hagen. Law students will earn up to six credits taking gram and placing foreign students with American courses from European professors. In turn, European roommates at Central Campus are also conducive to students will be taught by American law professors.

The Special Comparative and International Legal Studies Program

n 1985-86 the Law School inaugurated for its Ocko), Comparative Administrative Law (Lawrence G. own students a jointJD.-Il.M. in Foreign and Baxter, University of Natal, South Africa), Comparative International Law, with the same residency Criminal Law (Arnold N. Enker, Bar-Han UniversitY, I requirements as in the older JD.-MA joint degree Israel), Comparative Family Law: The Status of Children programs. The new program was an instant success, (Nicholas C. Bala, Queen's University, Canada), Compar­ with almost half of the incoming summer students ative Law: Western Legal Traditions (Herbert L. electing to pursue the Il.M. The additional degree Bernstein, who joined the Duke faculty in 1984 from requires 20 hours of work in foreign and international Hamburg UniverSity, Germany), Comparative Public law, plus the usual 86 hours for the JD. Law & Policy: Ethnic Group Relations (Donald L. An older companion program, requiring two Horowitz), English Legal History: Commercial Law semesters in residence and 20 hours of course work (Paul H. Haagen), English Legal History: Criminal Law (which may include courses in American law), is (Cynthia B. Herrup, Duke Department of History), available to non-Americans who have received profes­ International Business Transactions (Pamela Gann), sional training as la\V)'ers in other countries. Sixteen International Criminal Law: The Control of "Terrorism" international students entered this program for 1985-86. (A Kenneth Pye), International Law (Horace B. Some of these one-year U.M. students are profiled Robertson), International Organizations (Horace B. elsewhere in this issue. Robertson), International Taxation (Pamela Gann), Jap­ The jOintJD.-Il.M. is meant to broaden and deepen anese Administrative Law (Percy R. Luney), Japanese the study and practice of American law, by exposing Constitutional Law (Koichiro Fujikura, University of American students to alternative theories and proce­ Tokyo,Japan, and Percy R. Luney),Jurisprudence dures and by making them more aware of the interac­ (George C. Christie), and Political Philosophy & Law tion between law and the social order. Candidates for (Guy Haarscher, Free UniverSity of Brussels, Belgium). the joint degree must also eventually demonstrate A research tutorial on Freedom of Expression in Swit­ minimal competence in a modern language by means zerland (Beatrice U. Pfister, University of Berne, of a test administered by the Law School. Switzerland) is also offered. Miss Pfister is a scholar in Each year the course counting toward the U.M. at residence at the Law School this year, along with other the Law School will reflect the interests of visiting viSiting international scholars Michael B. Evans (New international faculty The School's International Studies South Wales Institute of Technology), Peter F. Glavovic Committee has also approved some courses offered (UniverSity of Natal, South Africa), and Masahiro Usaki elsewhere on the campus. The School's program for (Tsuru UniverSity, Japan). 1985-86 includes: Chinese Legal History aonathan K. DUKE LAW MAGAZINE / 38

COMMONWEALTH COUNTRIES Duke's Symposia on Canadian Constitutional Reform

Even as short a time as a half dian Studies Program at McGill stances in the United States. Further­ decade ago, many of the Law University, the symposium involved more, the real impact of the Charter School's forays into international the presentation of twelve papers may become clear only as the courts subjects came about as cooperative authored by five Duke and seven give life to its provisions through ventures. On November 8, 1981, the McGill academics from the disci­ judicial interpretation. To a large School's International and Compara­ plines of political science, economics, extent, the responsibility for pro­ tive Law Institute, with thirty-four stu­ history, and law. These papers, pub­ tecting individual rights and liberties dents on its staff and a Law School lished in both the Autumn 1982 issue has therefore passed from Parliament Editorial Board of four faculty of Law and Contemporary Problems and the provincial legislatures to the members, sponsored a "Conference and a 1984 hardback Duke Press courts. Pye points out that if tllis on Canadian Federalism" as its inau­ verSion, examine, analyze, and delib­ transfer is perceived as successful, gural project. Professor Richard erate tlle constitutional reform pro­ Canadians may wish to strengthen Leach and the Duke Canadian cess which culminated in the Canada the provisions of the Charter itself. Studies Program, together with Vis­ Act of 1982, proclaimed in Canada on Professor Dellinger's paper iting Professor Morris Litman, assisted April 17, 1982. examines the amending formula in in the selection of the topic and Among the five Duke partiCipants Schedule B of the Canada Act (i.e., conference participants. One paper were two professors from the School the Constitution Act, 1982), com­ each was delivered by faculty from of Law: A Kenneth Pye and Walter paring it to the amending process in the University of Ottawa, McGill Dellinger. Professor Pye's paper Article 5 of the United States University, and the University of examined the likely impact of the Constitution. Although many issues Saskatchewan. Walter S. Tarnopolsky Canadian Charter of Rights and Free­ arising during the recent Canadian surveyed the judicial effect given the doms on the rights of persons reform efforts parallel those present Canadian Bill of Rights. JR. Mallory accused of crimes. The Canadian during the Philadelphia Convention studied problems of distribution of Charter was Part I of the Constitution of1787, Dellinger points to funda­ power in conflict management in the Act, composed of thirty-four sections. mental differences in both circum­ Canadian federal system. WH. One of the most controversial parts stances and decisions finally made. McConnell reviewed past and cur­ of the Canada Act, the Charter was The American Constitution was rent provincial debate over the criticized by the provinces as an drawn up by a special convention constitutional amendment process in unwarranted intrusion upon the pro­ chosen for that purpose and was Canada. Among the commentators vincial jurisdictions over property submitted for ratification to similar were Duke Law Professors William and civil rights, and by various spe­ special conventions in the states. Van Alstyne and Donald Horowitz. cial interest groups as too weak and Conversely, in Canada the existing The main articles appeared in the vague. Professor Pye, known for his legislatures have drawn up the Summer 1981 issue of Law and Con­ scholarship in the field of criminal constitutional reforms; this creates a temporary Problems. procedure, concluded that the problem if the legislatures them­ On April 26 and 27, 1982, Duke Charter represents a significant selves are in need of reform. University hosted another interdisci­ improvement in legal protection Dellinger also reviews the new plinary symposium on Reshaping over the Canadian Bill of Rights, Canadian amending formula and Confederation: The 1982 Reform of which had been a disappointingly praises it for addressing specifically the Canadian Constitution. Organ­ ineffectual document. Nonetheless, many questions that are not ade­ ized jointly by Richard Leach, in many areas the protections quately considered in Article 5 of the director of the Canadian Studies afforded by the Canadian Charter American Constitution. For instance, Center at Duke University, and Paul appear to be significantly less than the Canadian Constitution clearly Davenport, Chairman of the Cana- those available in similar circum- indicates how and when those prov- VOL. 4, NO. 1 / 39 inces which dissent from amend­ to override the Charter of Rights. address fully. Nonetheless, they do ments may change their dissent to Long opposed by Trudeau as a mea­ provide an excellent starting point approval. Dellinger does criticize the . sure which would lead to a for analysis and answers. As Paul new Constitution for limiting future "checkerboard constitution" and Davenport points out in his introduc­ constitutional changes to those sug­ foster national disintegration, tion to the anthology, the interdisci­ gested by the national government or Dellinger believes that this provision plinary nature of these papers the provinces; such a limitation pre­ accurately reflects, and will to some emphasizes one essential aspect of cludes amendments which might degree perpetuate, the current de­ the process of constitutional reform: have wide popular support despite centralized quality of Canadian the complex interweaving of political, opposition from existing legislatures. society. economic, linguistic, and legal issues Finally, Dellinger comments on The constitutional reform of 1982 which make up the fabric of Cana­ those provisions that allow provinces and its implications for Canada's dian federalism. to opt out of constitutional amend­ future raise numerous questions ments with which they disagree and which twelve papers cannot hope to

VtSiting Professor Nicholas Bala

Visiting professors from canada the arrival of Nicholas Charles Mat­ ing law students, judges, lawyers, and are nothing new to Duke Law School. thew Bala, Visiting Professor for the other professionals trial techniques Past appointees have included Fall Term, 1985. Born in Montreal, for family law related matters. Gordon Bale from Queen's Univer­ Quebec, Professor Bala received his When asked to compare cana­ sity in Kingston, Ontario; William U.B. from Queen's University in 1977 dian and American law schools, Pro­ Brent Kelly Cotter from Dalhousie and his U.M. from Harvard Law fessor Bala said he found in Canada University in Halifax, Nova Scotia; School in 1980. He joined the Faculty greater variation in the students' aca­ Moe Michael Litman from the Univer­ of Law at Queen's UniverSity in 1978 demic ability, career aspirations, and sity of Alberta in Edmonton, Alberta; as Assistant Professor and Assistant social backgrounds. On the other and Garry D. Watson from the Direaor of Queen's Legal Aid. Since hand, Canadian law students tend to Osgoode Hall Law School of York 1981 Professor Bala has served as a be less varied geographically. Teach­ University in Toronto, Ontario. Bale consultant on child welfare and juve­ ing methods are fairly similar, yet, visited in 1984-85 and offered a nile justice to various groups, according to Professor Bala, Duke research tutorial on Comparative Tax including the National Study on the students typically work harder, and Theory and Policy. Watson taught a Funaioning ofJuvenile Courts and far fewer enter the fields of criminal small section of the first-year course Ontario Council of Indian Chiefs; in or family law. Legal aid clinics are in Civil Procedure in spring 1984. 1982 he was Visiting Lecturer in more common in Canada, yet Duke Cotter came in 1983-84, served as an Family Law at McGill University in offers greater depth in the areas of arbitrator in the Commercial Arbitra­ Montreal. corporate and commercial law. tion CliniC, and taught Lawyers and Professor Bala's publications are Overall Professor Bala said he finds Clients. Litman visited in 1980-81 numerous and cover a broad range Duke law students warm, receptive, under the auspices of the Duke Uni­ of family law and juvenile justice and bright, and he feels very fortu­ versity Canadian Studies Center and topics; in addition, he is co-editor of nate to have this opportunity to teach taught Trusts and Estates, as well as a Young Offenders Service, a looseleaf at Duke. Professor Bala's courses for seminar on Gratuitous Transfers of service tracking developments in the the fall include Family Law and a Wealth. field of Canadian juvenile justice, and Children's Law Seminar. The Law School continues its co-producer of videotapes used Canadian alliance this semester with extensively across Canada for te-dch- DUKE lAW MAGAZINE / 40 Commonwealth Students atDuke

In the past and present, Duke of the papers he wrote during his Peter, a "colonial" attitude persists Law School has attracted a number of course of study have subsequently among Canadian legal scholars, and Canadian students who venture been published. therefore most of them obtain their south to study law. Some of them Several factors compelled Hugh graduate degrees either in England come for a year of graduate work; to select Duke over other schools; or the United States. others stay for three years to obtain a among them were Duke's national In addition to its U.M. students, juris doctorate degree. reputation, its many commercial law Duke also has several Canadians When the U.M. program still had course offerings, its well-organized enrolled in the J.D. program; cur­ a relatively small number of foreign program for international students rently they include Allen Hanen students, Veronica Mahanger came to (both at the law school and under­ (class of 1986) and Jonathan Shapiro Duke upon receiving her U.B. from graduate levels), and its "southern" (class of 1987). the University of Calgary Faculty of location. Allen, from Calgary, Alberta, first Law in 1979. Veronica anticipated Hugh described his fellow Amer­ came to the United States when he quasi-permanent residence in the ican students as "more than friendly, and his wife received graduate United States, and she therefore con­ more than helpful, and sometimes centrated on courses in American curious." He claims to have spent a law, except for Professor Arthur great deal of time discussing differ­ Larson's course in International ences in the respective legal systems, Organizations. FollOWing her gradu­ and he said he would unhesitantly ation from Duke, Veronica has in fact encourage other international stu­ remained in Durham, since her hus­ dents to attend Duke. band is now a tenured Associate Peter Tobias is a Canadian stu­ Professor at the Duke Medical dent currently enrolled in the U.M. School, Department of Anatomy program at Duke. Peter attended While still at the Law School, Queen's University in Kingston; fol­ Veronica worked as Acting Assistant lowing his year in Durham, he plans Dean of Student Affairs, beginning in to return and complete his legal January 1980, and Assistant Dean studies, examinations, and "articling" from May 1980 until May 1983. requirements. Peter came to Duke Having taken the North Carolina bar in the interim, she went into solo Allen Hanen practice for about a year and a half. She also had a child in 1982 and another in 1984. From December teaching appointments in philos­ 1984 to the present she has been the ophy at the University of North Caro­ sole attorney in the Outside Plant lina at Chapel Hill. Allen's wife Engineering Department, handling subsequently accepted a position at and negotiating contracts for Gen­ Duke, while he enrolled in Duke Law eral Telephone of the Southeast! School. Allen plans to remain and Kentucky practice in the States, primarily Hugh B. Lambe, an attorney in because returning to Canada would Toronto, Ontario, recently received entail further study, and because he his U .M. degree from Duke Law feels that legal opportunities are School. When asked his reasons for greater here. Allen's interest is in litigation; his Law School honors obtaining this degree, Hugh said he Peter Tobias felt it would lend stature and credi­ include Winner and Best Brief bility to him in his field, tax planning awards in the annual Moot Court and real estate, as well as be a not only for its expertise in the areas Competition. Having clerked for a rewarding personal experience. of banking and financial law, but also firm in New York City, Allen hopes to Hugh described the professors at because he entertains the idea of return there permanentl)~ for he Duke as "superb" and noted that two teaching law someday According to enjoys the city's mixture and wide VOL. 4, NO.1 / 41

acceptance of many different cultures. fort and security of family and dealing with people and problems. Jonathan Shapiro is from Mon­ friends but feels pOSitive and opti­ When students come to him for treal, Quebec, and studied Political mistic about his decision. He clerked advice or help, he feels that they have Science at McGill University Unhappy in both Orlando and Milwaukee last already decided how to deal wi til the with the political and economic summer and plans to settle in either problem and merely want confirma­ situation in Montreal, Jonathan Philadelphia or Boston. tion. Allen sees in many Americans decided to study law in the United Allen describes the Socratic "a combination of confidence and States. This decision effectively pre­ method as "grossly inefficient;' but insecurity" While Americans always cludes him from returning to Mon­ notes that this observation comes to seem to be so sure of themselves treal to practice, since the Montreal him after four vears of law school. they are at the same time, says Allen, ''You are taught to do so much in the "utterly terrified of failure." Asked for dark here. At university (in England) an explanation, Allen attributes these cases were treated only after a gen­ characteristics to a lack of history and eral lecture in black letter law," say tradition to fall back on and the Allen. He perceives Duke as quite "pioneering spirit where weakness competitive: "It is more visible and would have killed you." more blatant here." The major disappointment, Allen Allen describes his first months feels, is that his experience abroad is in Durham as depressing and not fully utilized here. Although he is disappointing. Interaction with not certain that it would be different Americans was difficult. "(Inter­ for an American in England or national students) came from a Europe, he feels the international whole different set of values, a whole student's special qualities and accom­ different set of experiences." When plishments should be channeled into asked about the tendency of foreign the Law School more effectively students to spend a great deal of time - perhaps into more organized dis­ Jonathan Shapiro together, Allen quotes a fellow cussions and presentations. student: "The only thing that we Neil Clarke holds an undergrad­ (international students) have in uate degree from the University of "bar" requires knowledge of French common is tlut we have nothing in London and a master's degree in civil law. Jonathan, however, agrees common with American students." Economics from the University of with Allen that legal opponunities Allen finds his perspective changing Connecticut. Like Allen, Clarke has are greater in the States. He worries a bit, however. With Judy Horowitz's settled himself in tllis country in at that, as a Canadian citizen, he cannot encouragement, he became a Resi­ least partial reaction to the depressed qualify to take cenain bar exams, and dent Assistant on campus. Living and economic conditions of England. He the period of time required to obtain working with the undergraduates, he explains tllat people are very much American citizenship is quite lengthy says, "ensures that I will continue to pigeon-holed at home: institutions Fonunately, Jonathan can take the be enthusiastic and I carry it on like apprenticeships make change New York bar, and he hopes to even­ through law school." from one occupation to another very tually practice somewhere in the As an RA, Allen has perceived difficult. Clarke admires the relative Nottheast. what he calls an American way of fleXibility and openness of American The English students involved in SOCiety: I love the fact that you can go the international program are both to law school here when you 're candidates for the].D. rather than the fotty" ll.M. David Allen read law at the Despite government funding of University of Exeter and will com­ education in England, Clarke explains plete the].D. course at Duke in two that not only is a university degree of years. Neil Clarke studied History at limited value to most English the University of London and is employers, but also that it takes enrolled in the traditional three-year resources to get staned and no loans track. are available for tllat purpose. Once a Allen passed his barrister exams student finishes law school, for in England but chose to move instance, another year of training is permanently to America. With a required to be cenified as a barrister; 13.9% unemployment rate in if the individual cannot afford it England, Allen was motivated to himself, he cannot go. "There is an come over by a need for greater almost insurmountable built-in disad­ opponunity In this his second year vantage against someone who has at Duke, Allen still misses the com- David Allen ability but is poor." In contrast to DUKE lAW MAGAZINE / 42

England, Clarke believes America open very late." He claims he saw a and will graduate with a].D. degree gives everyone a chance: "One of the lot of then unknown bands in Sydney in 1987. great things about American capi- nightclubs that have since become very famous in the United States. During his college summers, Robert Baxt: Randy worked in Sydney at the si:>...'ty­ Australia attorney branch of a large American law firm. According to Randy, there Another visitor to the Law School are about twelve law firms in Sydney this fall was Robert Baxt, Dean of the with sixty to one hundred lawyers in Law School at Monash University in each one. Victoria, Australia. Baxt presented a The legal education system is lecture to the faculty concerning very different in Australia. At the "Recent Australian Decisions on Cor­ University of Sydney, there is no divi­ porate Oppression;' highlighting the sion between the undergraduate and evolution of key corporate statutes in graduate curricula. High school Commonwealth countries. Such stat­ seniors take an exam called the HSC; utes give shareholders increased the top fifteen percent are admitted rights and remedies. At common law, to college. A student's score deter­ Australia courts required oppression Neil Clarke mines what curriculum he or she suits to be brought by the directors can pursue in the college. For of the corporation rather than by the example, one must score at least 390 minority shareholders (Foss v. Har­ talism as opposed to British social­ out of 500 points to study law there. bottle announces this rule.) However, ism is that people do get a chance." Randy says it takes a minimum of two over time and after 1945, a statutory Clarke carries his idealism about years at the college for an LL.B. right for shareholders developed. America to his defense of the degree, followed by six months in The first enactment of such a remedy methods and system of American law the college of law, which is "like an came in 1948 and the corporation school. "Professional school is a test extended bar exam." statutes are repeatedly amended. of determination; grades are merely Once finished with law school, These statutory innovations, Austra­ indicators to law firms of how you when one might be as young as lian corporate statute sections 320, perform in a competitive situation;' twenty-one years old, a young lawyer 574, and 542, are designed to aid the says Clarke. Hurdles are set up, he starts out as a solicitor or counsellor. shareholder, although cost rules con­ explains, and whether they are true The starting salaries are much lower tinue to act as a disincentive; and measures of intellectual capacity than in the United States; however, changes to fee regulation have thus does not matter. "It's a hazing pro­ law school is free and provided by far been resisted. cess really: everyone here has ability the government, so there are no Section 320, which has so far but detennination is what makes you loans to repay been narrowly read and infrequently succeed." From this point of view, applied, was originally 210 of the says Clarke, law school is effective. English Companies Act. The English Compared to Australians, Ameri­ Companies Act was adopted in 1948 cans are workaholics, according to and followed in Australia in the Randy Benn. Randy lived in Sydne)~ 1950's. Shareholders seeking on Australia, with his family for five oppression remedy faced many hur­ years and attended junior high dles under 210: the shareholder had school there; during high school (in to show continuous oppression, that New York) and college (at Duke the shareholder was being hurt in University), he spend many summers his capacity as a shareholder, and that there. Randy says there is much he had suffered financial detriment. greater emphasis on leisure and the Furthermore, the executor of a outdoors there, and he says Austra­ shareholder could not sue under lians tend to be a little bawdy and 210. In the 1960's, an Australian court off-color but very fun-loving people. interpreted the oppression statute He claims it is not unusual, for narrowly, stating that Parliament had example, to have a repairman come RandyBenn not really intended the section as to your home dressed only in his written. Other courts also found that bathing suit. Randy says alternate life­ While Randy enjoys Australia's a case's facts frequently did not sup­ styles are much more accepted there lifestyle and climate, he very defi­ port an oppression finding but and "the nightlife is wild. The clubs nitely plans to live in the United rather merely a finding of dissatisfac­ don't open until late, and they stay States. He is a second-year student tion with the corporation's actions. VOL. 4, NO.1 /43

The 1961 Report of the English affairs and to purchase shares. Now will balance competing interests. Jenkins Committee suggested wid­ the court will appoint a receiver and However, in Western Suburbs Foot­ ening the base of 210, and similar will either direct that proceedings be ball, the court refused to adopt a initiatives were proposed in other brought against directors or that the liberal view: A thirteen-team Rugby countries, with no result. Sections of members themselves bring such an League decided to exclude the the corporate code were then action. Western Suburbs club without com­ redrafted by the Australian legis­ Cases cited bv Professor Baxt pensation. Western Suburbs applied lature, however. Section 210 became were Don Keith Inuestments, Thomas for an injunction under 300, and the 320, 542 was revised to permit the ~! H. W Thomas (a 1984 New Zealand lower court agreed that the League's court to hold directions and exdi­ case), and Western Suburbs Football financial interests were overriding rectors personally liable, and 574 (now to the Australian high court on interest in the Western Suburbs club. permits the shareholder or "any appeal). In Don Keith , a shareholder The Court of Appeals reversed, other interested person" to seek an who sought a winding up because though, because it found that courts injunction and damages. the partnership was fractured was should not substitute their decisions After several decades of statuton: granted an oppression remedy and for that of management concerning amendment and conservative judi­ received the fair purchase price of the best interests of the corporation. cial interpretation of shareholder his shares. In Thomas, a shareholder, While it appears that Australian rights and remedies, the present who received few dividends from a and New Zealand corporate oppres­ grounds in Australia for bringing an company that turned profits back sion remedy statutes are more oppression remedy suit are very into itself at a four percent return, expansive than in the past and pro­ broad. The conduct of the corpora­ unsuccessfully tried to get the corpo­ vide greater rights to shareholders, tion must be oppressive, discrimin­ ration to change its poli0 ~ He then courts do not seem to uniforml\' atory, and contrary to the interest of asked to be bought out but was apply the broader view that would the members as a whole. Professor offered too Iowa price. Although the make it easier for a shareholder to Baxt finds the inclusion of "members shareholder lost below and on successfully bring an oppression as a whole" significant because it appeal, one Justice interpreted the remedy suit. A<; more cases are encompases more than the company new New Zealand provision more brought under the revised statutes, a itself. Remedies are also more expan­ expansively and as excluding old clearer pattern of the courts' applica­ sive than in the past, when the only cases. Justice Richardson further tions will emerge. available remedies were winding up stated that a court will intervene and an order to regulate corporate given an absence of fair dealing and DUKE LAW MAGAZINE / 44

EUROPE

VtSiting Professors from Western Europe

The internationalization of the while teaching at Queens College in from European students. Each may Law School has not been confined to New York The chance to work in the know certain things the other the student body: visiting professors States, Haarscher explains, was doesn't, but it comes to much the from Western Europe have enhanced tempting too because of what he same thing. It's not like teaching in the faculty in the past year. Mr. Guy described as "the provincialism at Thailand or somewhere-it's the Haarscher from Belgium and Ms. home." "The intellectual life in same world." Beatrice Pfister from Switzerland France is a bit in decline;' he says. Beatrice Pfister graduated in 1981 came to Duke both to conduct America, apparently, is still the land from the University of Berne in courses in their respective specialties of opportunity in the eyes of many Switzerland, and then obtained her and to use the resources of the Law Europeans. Il.M. at UCLA in 1982. She returned School to continue their own Haarscher's reactions to the Duke to Berne to teach in the areas of scholarship. environment are mixed. "The Uni­ jurisprudence and constitutional law. Guy Haarscher spent the fall at verSity of Brussels;' he says, "is in dle She is at Duke for the 1985-86 aca­ Duke on an informal leave from the center of the city There is an interre­ demic year as a Fellow on the Ameri­ University of Brussels. Because sab­ lation between city and university can Counsel of Learned Society In baticals are not allowed at Brussels, dlat doesn't exist here." Still, he is connection with her fellowship , Haarscher was on an abbreviated delighted by the amount of work he Pfister is working on an article for a stint at Duke to enable him to return was able to get done here. Without Swiss law journal on U.S. constitu­ to Belgium to fulfill his lecturing the administrative burdens and fam­ tionallimitations and requirements duties there. Holding doctorates in ily demands of home, Haarscher esti­ of procedural protections. Pfister both law and philosophy, Haarscher mated that he completed work in the plans to offer a research tutorial in offered a seminar this fall entitled twelve weeks here dlat would have the spring on freedom of speech in "Political Philosophy and the Law." taken a year in Brussels. "There is the U.S. and Switzerland. He is writing a book in English on noming to do in Durham;' he says Pfister chose Duke for her fellow­ the same topic and in fact explained, only half-jokingly, "so you work" ship primarily because of the "The course is really my book" Haarscher contrasts law school in facu lty'S reputation, particularly in Through both the articulation of his Belgium widl that in the States. "In the area of constitutional law. She position and dle feedback from class Brussels;' he explains, "more of a also admits that the climate was a discussion, Haarscher says, "[The selection process takes place in the consideration (the Universities of seminar) helped me to work things course of dle program: two-thirds fail Chicago and Pennsylvania were also out and reconsider my approach." out. Here students seem very serious on her list). Pfister finds the aca­ Haarscher was invited to Duke by and committed [from the start)-you demic atmosphere pleasant and Professor George Christie after a lec­ ask them to read something and they states that she was "impressed with ture Haarscher gave here last spring. do it." Haarscher noticed a definite dle reception [she 1was given and Christie's work in jurisprudence evolution in the dynamics of his happy with the professional interac­ attracted him, and Dean Carrington seminar: "It was more academic and tion going on." expressed interest in setting up a one-sided at first. I needed to lay the Like Haarscher, Pfister notes the seminar in Haarscher's field. basis, I think. Then the classes difference betweel) law school at Haarscher also saw the visit as a became much more discussion­ home and in America. But while means "to capitalize on [his) English oriented." Haarscher spoke of the connection speaking abilities" and to strengthen Overall, Haarscher says, "The stu­ between university and City in the American contacts he had made dents in America aren't that different Brussels, Pfister emphasizes that law VOL. 4, NO. 1 / 45

school in Switzerland was more like atmosphere-the interaction the difficulty of finding anything a university itself. "The faculty with between faculty is more narrow at quickly, she says, "Research is harder one specialization;' she explains, home." here because the American legal sys­ "would be grouped in one building, Pfister has discovered a differ­ tem is less systematic than civil law." other law faculty would be in other ence in the legal systems of Switzer­ buildings. It's an entirely different land and America as well. Lamenting

Switzerland and Belgium

Four of the students in this year's high school-like atmosphere ot seem to have much more time to U.M. class are from Switzerland. classes and the number and length SOCialize ," says Schaerer. The Amer­ Barbara Schaerer and Marcel of asSignments. "I spend so much ican law student's lack of free time is Schmocker received their law time with the reading;' says Schaerer. indicative to Schaerer of their com­ degrees from the University of 'At home, law students are much petitiveness and of what at times Berne. Olivier Peclard graduated in more independent in their work." Of appears to her as an obsession with law from the University of Geneva. the American legal system in general money "Here, you want good grades Adrian Steinbeisser received his law Schaerer observes that the problem so you can get with a firm and make degree and the doctorate from the is "to put the system together." a lot of money" Schaerer observes. University of Basel. Unlike civil law; American law "starts 'At home there is more emphasis on Schaerer has a background in from the facts and you try to get the law to help social problems." The both the teaching and practice of law. rules out of the facts ." narrowness of the typical American For a year and a half after taking the Schaerer spends most of her free student, Schaerer notes, "makes bar exam in 1981, she was an assistant time with otl1er international stu­ other aspects of the personality professor at Berne. Subsequently she dents, although she is beginning to suffer. (American law students) never was employed by the Swiss Depart­ develop some friendships with experience the academic freedom I ment ofjustice, working primarily in Americans. She mentions that a great had. They go into the profession so the Legislation Division. There her amount of effort is sometimes quickly" time was divided between analyzing involved, and she sometimes finds Marcel Schmocker graduated drafts of administrative regulations American students a bit difficult to from Berne in 1983. After university, for their constitutionality and writing approach. "International students he joined a law firm with a strong opinions on problems and questions bUSiness orientation. At seven law­ independently submitted to the yers, it's one of the largest in Berne. Department. The decision to enroll Schmocker also worked for a govern­ in an American master's program, ment organization, the Secretary of says Schaerer, "was mainly personal the Police Physician Association. His but I see its usefulness professionally, work there involved explaining new too." Wanting to avoid the frenzy of a regulations and proposals to doctors big city and the competition of too and collecting their feedback. He big a UniverSity, Schaerer chose also participated in arbitration pro­ Duke in particular because of its size ceedings and prepared advisory and atmosphere. While she still finds opinions on questions submitted by the Law School more competitive doctors to the association. Working than she would like, Schaerer for the government as a young "appreciates North Carolina's friend­ lawyer, explains Schmocker, "is very liness and openness." Like most of good professionally (although) it just the other international students, pays expenses." Schaerer praises the smooth adminis­ Although his firm is not spon­ tration of the program and comple­ soring his study, Schmocker was ments Judy Horowitz on her helpful­ encouraged by the firm to come to ness and competence. the States. He has two goals in mind: Schaerer was surprised by the Barbara Schaerer "To learn the basis and basics of DUKE LAW MAGAZINE / 46

American law and to master the dentist and was able to find a language." "Languages are very research job in Chapel Hill. imponant to work as a lawyer, and Schmocker finds that professors Switzerland is so small," explains here are generally more approach­ Schmocker, "that you need interna­ able than at home: "Professors (in tional connections." Duke was Berne) are like gods and the average recommended to him as a top school student can't really talk with them." by members of his firm, and he was What Schmocker misses most attracted bv its small size. about home is the social life. In Like other international students, Berne, he explains, "there are always Schmocker finds American law restaurants you can just drop into school quite different from law and find friends there. There's alwavs school at home. In Berne, one a place to go." written exam is given after four Adrian Steinbeisser has spent the semesters, along with six oral exams. last six years in Brugg as a bUSiness "Most students don't go to class lav"yer and a notary public. His deci­ much and then study everything the sion to enroll in the ll.M. program last half year," says Schmocker. "Even was primarily personally, rather than professors say don't come to lectures profeSSionally, motivated. The firm in Adrian Steinbeisser -study" Noting the difference which he worked was so small as to between the rule-based system at make pannership unlikely and tired of his status as an associate, he had Olivier Peclard, after graduating two options: to open his own firm or from the UniverSity of Geneva in go into government. Before taking 1980, practiced law in a Geneva firm. such a drastic step, and while still To improve his English, he arranged unmarried, he says, "I wanted to to come to the States several months experience the United States and before he was due to stan the ll.M. broaden my horizons." program. With the help of family Duke was recommended as one of friends in Charlotte he was able to ten top schools to Steinbeisser by a obtain a summer position in a Char­ colleague in Basel. As with many lotte law firm. It was there that he students, the Law School's size was heard about Duke's program, and he an asset. "I wanted to be a member eventually changed his original plan of a community and not only a of attending George Washington. number," explains Steinbeisser. Peclard contrasts the constant Steinbeisser is reluctant to judge day-to-day work required at Amer­ the efficiency of the Socratic method ican law schools to the freedom and of teaching but he does find himself independence of studying law at a bit burdened by the daily home. "My time at university was A1arceISchn1ocker aSSignments. He points out, however, holiday" he says. "It was personal that the amount of work may be due self-control to follow courses, and to the fact that law school is three then you 'd work very hard for two years here and four to five years at months before exan1S. Here you are home and the case method here, home. obliged to keep up every day by Schmocker believes the Socratic Socially, he wishes there was classes." Peclard does find a differ­ style of teaching is appropriate if more interaction with the American ence between first-year classes and time-consuming. Its shoncomings, students but, Steinbeisser says, "I upperclass courses in the decreased says Schmocker, are that "you learn feel I'm panly at fault and need to use of the Socratic method, which he only how to analyze a case, not how make a greater effon." He adds, sees as "time-consuming and to put rules together and suppon 'Among international students there inefficient." your client's position." is a special group status-common Unlike many other foreign stu­ Schmocker finds American stu­ courses, International House events dents, Peclard is finding integration dents easy to "just chat with" but -that deepens the connection." rather easy. "One can always find difficult to get to know on a deeper What most impresses Steinbeisser things to do;' says Peclard who plays leyel. He feels more comfonable about Durham and orth Carolina is soccer on the Law School's intra­ socializing with international stu­ the amount of open space and land. mural team. He finds his fellow stu­ dents but at the same time, says "In Switzerland, four universities dents quite open and friendly, Schmocker, "I see the danger of it." would have been built on (the area) attributing it in pan to the national His wife is here with him. She is a of this one campus," he explains. character of Duke. "Becoming VOL. 4, NO. 1 /47

the class passes it, most must re-take and she also believes there is a pro­ it in the fall after studying through feSSional advantage attached to an the summer. After the September American law degree. She plans to re-take, says Evrard, "no one wants to work in this country for at least a start classes right away so they take a year. Ideally Evrard would like to break for a few weeks. Then you connect with an American law firm begin already behind and (it becomes with a branch in Brussels practice. "I a circle)." In addition to the univer­ need opportunity fast," says Evrard. Sity study, three years of practice are When questioned about her per­ required to open a private firm. ception of Americans Evrard The lectures in Belgium, as in answers, "I think the European Switzerland, are rule-oriented and opinion of American freedom is class attendance is comparatively wrong." Her experience in Connect­ low. Hornbooks or published notes icut led her to the conclusion that are used to prepare for exams. Both American teen-agers tend to be Evrard and Tulcinsky agree that the "overprotected and naive;' rather daily burdens of aSSignments and than independent and worldly. class preparation here contrast with Evrard also mentions her initial the independence of the Belgium resentment of America's self-obses­ Olil'ier Peclard law student's experience. Evrard, sion and the degree of arrogance however, explains that she did study about its democratic ideals. ''You are friends (with Americans) is not on a day-to-day basis at home and in so big in this country" says Evrard, difficult, especially at Duke where fact expected the courses at Duke to "that you don't have to look outside people come from all over and live like you need to in Belgium. I am near each other here. It may be proud in both knowing Belgium well different in a big City" He adds, and being able to look outside it." "making good friends anywhere, of She continues that although America course, is not so easy" is a powerful and important country, Among the things Peclard misses Americans should take care to recog­ most about Switzerland is the lively nize their limits. 'Arrogance in atmosphere of downtown Geneva. power," Evrard observes, "leads to Observing that Charlotte is about the neglect of other civilizations." same size as Geneva, he explains, Paul Tulcinsky, working on his "the downtown is dead. The City has third law degree, is being sponsored no spirit." by his law firm in Brussels. At fifty­ Peclard finds the Law School's seven lawyers, the firm is huge by by environment much more competi­ European standards. Tulcinsky ex­ tive than at home. In Switzerland, he plains that the firm is unusually sim­ says, "It is course selection that is ilar to an American firm because it is important, not numbers." He also organized by American- or English­ notes that the two-year practice educated lawyers. In fact , Tulcinsky is requirement in Switzerland helps one of six associates sent this year by employers sort out what you are the firm to study law in America. good at, so grades become less Marie El rard Although he is not formally com­ determinative. mitted to the firm, he does plan to Two LL.M. candidates are from return to it. Belgium. Marie Evrard graduated in be more challenging. The chief Duke was recommended to him law from the University of Liege. Paul difference in studying is one of by a 1979 LL.M. graduate who is an Tulcinsky earned both his law degree approach, says Evrard. "Here, mem­ associate with Tulcinsky's firm. He and his master's in taxation at the ory is used less and instead problem­ describes his reception here as University of Brussels. solving skills are stressed." "wonderful" and mentions that he The ordinary period to complete Evrard can1e to America for a mix was provided with useful informa­ the law program at university in Bel­ of personal and professional reasons. tion from the time of his application gium is five years. Evrard notes, "It's Having spent a year in Connecticut to present-day counselling. Tulcinsky easier to get in (law school) in during high school, she wanted to was surprised with the degree of Belgium, but it's harder to get out." expand her experience with the organization of the program and the The cumulative exam for each year is United States. As with other interna­ warmth of the faculty and Interna­ given for the first time in the spring. tional students, Evrard wanted to tional House. "I think it would be Since usually less than a quarter of refine her English language skills, very different for an American going DUKE LAW MAGAZINE / 48 to Belgium;' he says. PRC; and in further legal programs While he is enjoying the new Michael at the University of Geneva, Switzer­ perspective offered by American law Gyongynosi: land; Leyden, Netherlands; London school, and finds the cases "amusing" School of Economics, England; Stras­ to read, Tulcinsky is a bit disap­ West Germany bourg, France; Coimbra, Portugal; pointed in how classes are conduaed. and Urbino, Italy. He has worked as a He thinks the Socratic method is It is a long way from Munich, law trainee in international subjects employed ineffectively: "It is often Germany, to Durhanl, North Carolina, for both German and American law used just for the facts , not the anal­ but so far graduate student Michael firms, served as an ad hoc intern at ysis of a case." He finds a similar lack Gyongynosi ("Mishi") has had little the UN Secretariat of the Law of the of depth in the Legal Writing Course. trouble adapting to life at Duke Law "(The course) is not challenging for School. Formerly a practicing attor­ someone who is alreadv a lawver." ney, Mishi characterizes his LL.M. Tulcinsky continues, "There is~ ' t study at Duke as a "professional enough criticism and comment on benefit"; he plans to return to the style." He is finding, however, that Munich eventually but would like to the work is very time-consuming. He work with an American firm. is, in a way, grateful for the work According to Mishi, the study of law at Duke is much different from his previous legal studies. In Ger­ many there are no assigned readings, students receive an option of many texts, and professors lecture on the "best" theoretical solution. Classes are extremely nonauthoritarian, with students wandering in and out as they please, and classmates often meet in local coffeehouses for legal discussions and debates. Although he praises the American system as Michael Gyong)'osi more efficient, Mishi nonetheless feels that students here are some­ times too close-minded and reluc­ Sea, and was a law clerk for a civil tant to go beyond assigned readings. and penal law judge in Bavaria. For Mishi's deciSion to come to Duke two summers he worked on a kib­ was based on both Duke's reputa­ butz in Israel. After graduation from tion and its "environment;' and he is Duke he plans to speCialize in an extremely happy with his chOice. He American law firm performing legal Paul Tulcinsky finds the students friendly and work in the Far East. curious, yet sometimes too busv for more than hurried "hellos" ex- . Beata Iracka­ since his wife could not practicably changed in the Law School halls. accompany him to the States. Life in the States has required some Jostmeier: Poland "Sometimes I need to bury myself in adjustments for Mishi; initially he all the books;' says Tulcinsky. tried to eat, as many Duke students Wbat are the major differences Tulcinsky, like Evrard, is some­ do, from the downstairs vending between the legal systems ofPoland what disturbed by the ignorance of machines. His stomach, accustomed and the United States? I would ha£!e many Americans about world events. to leisurely Continental dining, said it's not a common law system. 'i\mericans see the world only in immediately rebelled. Mishi also In the European tradition it's terms of America. It's simply amaz­ expresses a de.'>ire to find some­ codified, you don't look as much to ing;' Tulcinsky says. He sees the where in Durham which serves caselaw But, what is happening in media promoting this attitude, com­ what he describes as "good coffee"; Poland now is that law and its inter­ menting on the small amount of time apparently the DBA foodstore does pretation is being adapted and the news devotes to world politiCS not qualify as such a place. changed to fulfill the present desires and foreign countries. The adjustments are not so dif­ and trends of the regime. ferent from those that Mishi has Beata Iracka-Jostmeier is from made during international experi­ Warsaw, Poland. She attended high ences elsewhere: at tile Central school in England along with Bharat Institute of Nationalities, Beijing, Dube, also now a Duke Law student VOL. 4, NO.1 / 49

from India. Afterward, Beata "wanted Interestingly, Beata reports that J.D. from Duke in May 1986 and to try another country" for under­ "more women than men enter law" plans to practice law with a firm in graduate school and the States were in Poland. the United States. a top choice. Duke University offered Beata met her husband, Eckhard Bozena's involvement with law her a full scholarship. She decided to Jostmeier, in undergraduate school. began long before her studies in the come here, majoring in Political Sci­ They were married in July 1984. He ence and Spanish. currently is in Herford, West Ger­ Duke Law School was a logical many, working on computer data continuation of her college interests bases, but plans to come to the and objectives. As well, she knew United States soon. Durham, and felt the school was top Beata learned our language quality. Had Beata returned to Poland mostly by living in English-speaking for legal training, she "would have countries, although she had a few had to start again. There is no such years' study in Poland too. She also thing as college, then law school. It's speaks Russian, Spanish, German, just law school for four or five years and, of course, Polish. after you decide you're going to be a Her travels have taken Beata lawyer at age 18 or 19." throughout Europe, the USSR, Iran, Kuwait, Venezuela, and Mexico. In the U.S. , Beata has visited the West Coast, the South, New England, and New York City. The size of America's big cities surprised Beata: ''you know the data, but you have to see it to know what Bozena Sarnecka so many people put together means." She likes the great open spaces of the U.S. and our relaxed lifestyle. On the down side, Beata missed United States. Right after high school, Polish food until a new PolishlFrench she entered one of Poland's eleven restaurant opened in Chapel Hill. law schools and for five years studied She keeps up witll her homeland by law along with several undergrad­ reading Polish newspapers in Perkins uate courses. After law school, she Library as well. spent two years as a judicial clerk for Once she gets her J.D. in May an appellate court. In Poland, one 1987, Beata plans to settle penna­ clerks for a court, not for any partiC­ nently in the States. She has no geo­ ular judge. Judicial clerkships there Beata Jracka-jostmeier graphical preference, although she are a type of extended study pro­ has worked in Durham during gram with daily classes and lectures. school, and for law firms in Riverside After the clerkship, Bozena passed and Palm Springs, California. the state judicial exam, which quali­ Law students in Poland have a Commercial Writing is Beata's fied her to be a judge; but she claims summer break, but "do other things favorite course because "it allows she never w~lted to be a judge. instead" of clerking with a firm. you to use your ingenuity. It's as close Instead, she be'came an assistant pro­ Once they complete their studies, as you're going to get to real practice fessor of labor law at an institute in law students do not have further while still in school." Poland and spent most of her eleven examinations, unless they wish to years there writing and publishing. become judges. In addition, she was part-time gen­ Private firms are usually com­ eral counsel for the Agriculture posed of solo practitioners. Larger Cooperative in Blonie and part-time firms are "usually a parent with a Bozena Sarnecka: worker's counsel of labor law and child or close relatives." The bulk of Pola nd social security benefits for the attorneys, however, work for the Warsaw branch of trade unions. government. Bozena Sarnecka originally came Bozena spent time witll relatives The Polish are not as litigious as to the United States for a six-month in Virginia and in Portland, Maine, Americans, Beata thinks, perhaps visit with relatives in Clarksville, before moving to Boston. She lived because "private industry is minimal." Virginia, to study English. Now, six in Cambridge for two and one-half Also, "the system is not geared to this years later, she has a master of law years with ninety-six year old Helene sort of problem-solving approach." degree from Tulane, will receive her Deutsch, who was also from Poland DUKE lAW MAGAZINE /50 and was a student of Sigmund Freud claims that she "loves Duke. It is law. She believes that American labor and author of "Psychology of almost like my family." She thinks laws are "not very human" and are Women." Bozena also lived on Cape Duke's small size and "wonderful inefficient, providing either too Cod for nearly a year before entering administrators and professors" make much or too little protection for Tulane's masters of law program in it particularly good for foreigners, workers. She claims she has no ties New Orleans. The following year, believing it provides "motherly care" with any particular area of the Bozena entered the ].0. program at to students who are far from home country. However, since she is fluent Duke as a second-year student. and unfamiliar with the area. in Polish, English, Russian, French, She says she was "shocked that Last summer, Bozena clerked for German, and Italian, and since she Duke was so nice;' because she had a small firm in Houston, Texas, and plans to practice corporate law, she is not liked either Tulane or Boston. she is now interviewing for an asso­ concentrating on larger metropolitan She wanted to come to Duke ciate position following graduation areas where there is international because it is a "great school" and is in May. She feels very strongly that business. "very famous in Poland." Bozena she does not want to return to labor

Past Graduates from Gernl3flY

In recent years West Germany has later, as secretary and manager of the been represented by several other Indo-German Chamber of Com­ graduate students. Beata Czerwenka merce in Calcutta. After receiving his received her Il.M. in 1981 and then Il.M. at the University of Pennsyl­ went on to Hamburg to practice law. vania, he came to Duke because of Susanne Haas came to Duke with an the pleasant climate, Duke's strong R.A. from Johann Wolfgang Univer­ reputation, and the positive impres­ sity. She received her Il.M. in 1985 sion made on him by Judy Horowitz, and will receive the].D. in 1987. director of the international student Torsten Lange finished his SJ.D. program. His career goal is work thesis in 1985 on "Labor Conflicts eidler widl private industry or an and the Role of Lockouts from a international agency in the areas of Comparative Perspective: A Legal international business transactions Study of American and German and economic cooperation with Approaches." Before coming to developing countries. Duke, Torsten served as legal advisor to the German Chamber of Com­ merce and Industry in London, and, Torsten Lange VOL. 4, NO.1 / 51

BookReview Guide to Foreign Legal Materials: French By Wallace R Bakd

harles Szladits, a well-known scholar at Columbia in the field of comparative law and library science, and Claire Germain, Law C Librarian and Senior Lecturer in Compara­ tive Law at Duke University School of Law, have prepared a second revised edition of a Guide to Foreign Legal Materials, relating to French law. 2 The purpose of this volume is to help the co nun on law lawyer use French legal materials. This book is unique for two reasons. There is no book like it in France,3 and there is a great deal of information about French law-a difficult and faSCi­ nating subject-packed into this small volume. It is an important book for common law laWYers who wish to study French law. Perhaps the biggest problem a common law lawyer must overcome in researching French law is to locate the best books, articles, and cases on the subject of his interest, whether in English or in French. Claire Germain's Part Two of this book, in only a hundred pages of teA't, leads the researcher immediately to the major works on each subject and provides brief descriptions and an evalua­ tion of each work listed. I verified and had reviewed by several friends who are distinguished French legal scholars, who were impressed and interested in the volume, the entries on Civil Procedure and Commercial Law and odler sub­ jects in which they speCialize. We have no found any major omissions of importance but an intelligent common sense selection of dle best audlors and mate­ rials in these fields. Claire Germain The first two chapters in Part II entitled "Bibliogra­ phies" (VI) and "Legislative Materials" (VII) are complete. The latter chapter contains much practical calendar with lovely sounding, seasonably significant information to help understand the more confUSing months such as germinal, jloreal, and prairial. The older French legal materials. For a common law student new calendar was instituted when the revolutionaries of French law, the explanation of the organization of dle deCided to start all over again which, according to Mr. French Codes and the listing of major French legislation Romme, was for the purpose of getting rid of Sundays.'! given in this chapter is helpful in ordering a mass of Whatever the French revolution did for France, it laws that is not easy to systematize. The reading of this created turbulence for those interested in French legal chapter is made appetizing by her instruction of the history, which Claire Germain has smoothed out nicely reader on the historical genesis of the laws and relation­ Chapter VIII deals with case law in France and starts ship of one to the other: An excellent detailed explana­ with the statement dlat "the importance of case law in tion of dle numbering systems used in some of the France cannot be overemphasized in spite of persistent codes is included and the chapter ends widl a nice doctrinal statements that judicial decisions do not make dessert-an explanation of the French revolutionary law." (See below for a discussion by Szladits in his DUKE lAW MAGAZINE / 52 chapter entitled "Case Law".) Claire Germain outlines regulations and case decisions applying EEC rules. how case law is organized, and gives a short explana­ Although progress in making Europe a political entity tion of the form of decisions. She also includes most seems slow, the European legal fabriC is constantly useful sections on computerized legal research and a being woven into the national legal structure. A short description of the data bases available in France, which reference to this development can be found at the will now be coordinated to a great extent. beginning of Part 1 Chapter X relating to Doctrinal Writings lists the In his conclUSion, Szladits gives us some final advice best legal treatises in a good selection of subjects which on how to proceed in researching French materials, concludes Claire Germain's contribution to the volume. explains how classifications of legal materials differ in Exchange Control and Foreign Investment Control are the two systems in the more important subject matter, the only additional subjects which seem appropriate to and returns to deal with the role of case law in tl1e add to the list of subjects. If the next edition of this work French system. could be expanded to be more exhaustive rather than He rightly comments that great reliance in France is selective, it would be useful for scholars to have listed placed on case law to know the present state of the some other unique works which do not fall into the "living law." Case law, as in the United States, is selected subjects, such as "Liberty of Information and important where there is no statutory law or an Opinion in International Law" by Roger Pinto, pub­ interpretation is needed. He then proceeds to explain lished by Economica in 1984. the differences in mental processes in reading an Charles Szladits's contribution starts with Part I, English or an American case and a French case and where he explains the role of legislation and custom as notes that a French lawyer focuses less on facts than on "sources" of French law. For a practitioner in France, legal principles in the decision, which gives a theoret­ the importance given to custom as a source of law may ical answer to a more or less abstract question. The civil seem excessive, although in certain limited domains it lawyer is also said to be more interested in the is important (labor law) and when it is manifested in reasoning than his common law counterpart, who tries the case law, courts do pay important attention to to extract a "narrow holding as in common law case;' custom. The traditional French legal scholar believes which could be futile for a civil lawyer. the "law" is the real source while custom is secondary, Szladits then points out that a French judge is not existing only by implicit permission of the legislative bound by higher court decisions decided in Similar power. cases between different parties, cannot lay down gen­ The section entitled 'JudiCial Review" helps to eral rules which will be binding in future cases,s and explain the totally different position of the courts of cannot cite a previous case as the reason for his general jurisdiction in France. They have no role in decision without invalidating the decision.6 But he adds deciding constitutional questions. Even the special that despite these rules, which are strange to a common "court" which is called the "Constitutional Council" acts law lawyer, "precedents are of great persuasive more like an advisory, adminstrative, or legislative body authority and are de Jacto usually followed by the than a court in ruling on the constitutionality of a law courts." He attributes this result to several factors, which prior to the time it is promulgated. It needs to be include the hierarchy of the courts and the resulting emphasized that the use of the words 'Judicial Review" tendency for lower courts to follow prior decisions of in this context is very different than in the United States. higher courts in order to avoid being reversed. Second, He then goes on to state, with reason, that French since a decision must contain reasons, a court tends to scholars do not consider cases as a source of law but follow another court's decision if it is well reasoned. practitioners do. In Chapter Iv, he notes that opinions This tendency has the advantage of providing expressed by legal scholars (doctrine) are not consid­ predictability ered a formal source of law but they are influencial with The case law is often reinforced by favorable the courts (like case law). Chapter V explains the annotations of a distinguished scholar; or if general importance of general principles in the hands of judges principles of law are Cited, it becomes even more and how they "form the bedrock" of the legal "persuasive;' even if it is not binding. Important deci­ system-the "tradition of the spirit of its law" which sions (decisions de principe) are sometimes printed corrects legislative abuses when sanctioned by the with the opinions of the government lawyer repre­ highest administrative court or the constitutional senting the public interest (conclusions du ministere council. There is also reference to equity as a limited publique), which usually have many citations of cases source of French law (not in the common law sense but and explain in more detail the reasons for the deCision. as the equivalent to moral principles) which has an It is indeed difficult to perceive how much difference, if impact when embodied in case law and the writing of any in practice, results from the different theory in legal scholars. Some French legal theorists do not think French law that decisions are not binding, since case of equity as a source of law. law does have a persuasive influence on decisions of By the time the next edition is published it will be judges. If a common law judge does not wish to follow a appropriate to place more emphasiS on tl1e important precedent, he often distinguishes the case on a factual development occurring in French law as a result of EEC basis. The result does not seem as different in the two VOL. 4, NO.1 /53 systems as the differences in theory would lead us to French society that it seems to be functioning almost as believe. if it offiCially had the power to make law in areas of I have recently had occasion to study French legal doubt or where the parlement has not legislated. history and examine the historical role of judges in In conclUSion, Charles Szladits's and Claire France. I was struck by how the legal profession, and in Germain's introduction and guide to the French legal particular the judges (like the nobles), got themselves system, French legal literature, and to some of the most into a bad spot with Louis XV and Louis XVI, and interesting problems in French law is a noteworthy blocked reforms which the king and the business achievement. Legal scholars and practitioners alike interests (bourgeoisie) wanted. In addition, the judges should be most grateful to tllem for their excellent in the high courtS, which were called "Parlements;' book. started to exercise political power, and issued general rules as though they were legislative bodies. Some scholars claim that the revolution was made 1. Partner, Baker & McKenzie, Conseiljuridique, Paris, France; Licence, more violent because the lawyers and the judges in University of Paris; Docteur en Droit, Free University of Brussels; A.B., LL.B., Harvard. general resisted reform rather than helping to make the 2. Published for the Parker School of Foreign and Comparative Law, adjustments in institutions which were inevitable. When Columbia University, by Oceana Publications, Inc., 1985. The first edition the revolutionaries came to power, they wanted no was written by Szladits in 1959. 3. There is, however, a book published in 1977 entitled Legal Materials, interference from judges. Documentationjuridique, by Andre Dunes, Editor in Chief of the Recueil In France today, there is no separate judicial Dalloz Sirey, who with Bernard Desche has another book in preparation "power" under the Constitution, only a judicial called Legal Research Recbercbe Documentaire en Droit. The former volume is a theoretical work with a first part entitled "General Nature of "authority" Judges, although they have an independent Legal Documentation." A second part outlines the different types of status and cannot be removed easily, are more like civil documentation available. servants, and their work-the case law-is considered 4. E Furet & D. Richet, La Revolution 330 (1965). 5. Article 5 of the Civil Code (the result of the hostilitv of the in theory less authoritative than in the United States. But revolutionaries). . despite these limitations on judicial power in theory, 6. Footnote 58 cites cases for this proposition. the judicial function is still such an important one in DUKE LAW MAGAZINE /54

FAR EAST

Students from the Far East

In the fall of 1982, Duke Law ducted last May After being a student Public International Law and Mari­ School began a program offering].D. of literature for many years, Fang has time Law at Fudan, and hopes to degrees to students from the People's found, to her surprise, that she has teach American law and work in a Republic of China. The program has many more ideas when studying law firm that deals with international grown rapidly: since its commence­ than literature. She plans, upon her business transactions upon his ment, ten more students-from return to Beijing, to practice in a return. Striking to him, in his study of both the People's Republic and municipal law firm or use her American law at Duke, is the flexi­ Taiwan-have been admitted. Korea degree in the area of international bility of judge-made law. Yan-lei is also increasingly represented. business. believes that the varied interpreta­ Eight students from the People's Tien Hui received a degree in tions of certain rules reflects the Republic of China are enrolled this English from Peking Normal Univer­ diversity of American society As a law year in the].D. program. First-year Sity in 1976, and taught English at teacher in China, Yan-Iei has felt an students include Lai Fang, Tien Hui, People's University for seven years. In urgent need to understand American Wu Yan-lei, Xia Yuan-Tao, and Zhao studying American law, Hui finds that law because of the growing cultural Jiusu. her greatest difficulties are in under­ and economic relations between the Lai Fang had taught English for standing the political culture and two countries. Like other Chinese seven years at People's University in social policies that are a part of students at Duke, Yan-Iei emphasizes Beijing. Prior to teaching, she had judge-made law. Hui learned of Duke that the differences in culture create acted as a tour guide in a travel Law School when interviewed by difficulties in understanding the poli­ service in Beijing. Fang learned of Dean Carrington in China. cies that form American law. Duke Law School through Yuan Ping, Wu Yan-Iei received a law degree Xia received a degree in business now a second-year student, when from Fudan University in Shanghai in law from the Peking University of Ping visited People's University dur­ 1982, where he speCialized in International Economics and Busi­ ing the Duke China Study tour con- international relations. He has taught ness. Since graduation, he has taught

LaiFang Tien Hui 'Xit }tm-/ei VOL. 4, NO.1 / 55 business law there. Xia was ac­ Xuan Yan , and Yuan Ping. ]ia An had with Americans. Akira has been espe­ quainted with Duke Law School studied English for four years as an cially surprised to find that while law through a colleague who is now a undergraduate, and was attracted to students here at Duke work very third-year student here, Gao Xi-Qing. the study of law because of its great hard, most of them seem to enjoy it. Like several of the Chinese students, importance not only in foreign trade Enrolled in the LL.M. program is Xia works part-time at the Center for and international transactions but Lin Yi-Ho from Taiwan, and two ]ap­ Study of Sino-American Investment. also in the reform of internal politics. anese students, ]unko Nishibatake The Center, founded by Gao Xi-Qing, The cultural differences between and Nobuo Simakawa. Yi-Ho re­ provides translation services for China and the United States create ceived an LL.B. from National Taiwan those in need-for example, the difficulties for ]ia An in studying University in 1982, and has worked as Chinese Embassy in Washington, American law. As ]ia An puts it, a senior assistant in a Taiwanese firm. D.C. , and law firms dealing in ': .. there is something above law in Duke, she says, is well-known in international bUSiness transactions. China and it's really hard to say Taiwan and has established a reputa­ Zhao ]iusu received both an everyone is equal in front of the law, tion for taking very good care of its undergraduate and master's degree but here one can feel confident in foreign students. Because she studied in international relations at Fudan saying Law is above everything." law in Taiwan, she had always had an University, Shanghai. Before enroll­ Yuan Ping, prior to her enroll­ interest in learning about American ing in the].D. program at Duke,]iusu ment at Duke, taught English at law. As Taiwan is a civil law country, organized training classes on inter­ People's University she has found the case-law method national business transactions at Akira Taguchi, a graduate of the difficult to grasp, and comments that Fudan. He was attracted to Duke University of Tokyo, is enrolled in the "only relying on one final exam to because of its national reputation Master of Legal Studies program. evaluate the whole course seems not and the fact that the student bod\' Taguchi, who majored in American quite reasonable." Although she finds was said to be "friendly, open­ studies, is now employed by Chiyoda the student body at the Law School minded, and active." ]iusu wants to Chemical Engineering & Construc­ helpful, she, like other foreign study American law in order to teach tion Company; Ltd. , and has worked students, finds them to be "too busy law at Fudan. Because the Chinese in the Legal Department there for and serious." legal system is now evolving rapidly, five years. He is particularly inter­ ]unko is a graduate of the Univer­ ]iusu would like to compare and ested in contracts relating to con­ sity of Tokyo. After completion of his evaluate the two different systems. struction or engineering. Because legal training,]unko worked for a law Additionally, knowledge of American Akira had not studied law in Japan, firm in]apan, specializing in interna­ law will be helpful to him should he he was interested in the M.L.S. now tional finance. Upon completion of be involved in establishing bUSiness offered at Duke as a one-year his master's here at Duke, he hopes transactions between the United program. He is sponsored by to work for at least one year for a law States and China. Chiyoda and plans to use his educa­ firm in the United States. Because he Second-year students enrolled in tion in contract law here at Duke has worked with clients that have the ].D. program include ]ia An Ling, when entering contract negotiations many transactions in the United

Xia Yua12-Tao ZhaoJiusu Jia An Lillg DUKE LAW MAGAZINE /56

States, his firm in Japan has encour­ enrolled in the SJ.D. program. James and cites the first-class faculty and aged him to gain international Chen received his LL.B. and LL.M. good facilities as well as the climate, experience. Because of the large from National Central Police College environment, and lack of distractions number of cases he is reading, he in Taipei, Taiwan. Additionally, he has outside the campus as reasons for his finds the study of American law to be studied law and criminology at satisfaction here. "more technical and specialized Vienna UniverSity, Austria, for one James is eager to return to his work than in Japan." year. After teaching at the College for homeland after finishing his studies Nobuo received an LL.B from three years, he worked at the Coordi­ and says he has never been inclined Kyoto University in 1978. Since 1978, nation Council for North American to practice law in the United States. A he has been employed by Nippon Affairs, in Taipei, as a government condition of his fellowship is that he Steel Corporation. In 1981, he was specialist dealing with economic and must return to work for his govern­ assigned to the legal department, legal matters. Janles Chen was ment for a period double the time of and has been involved in legal mat­ awarded a government fellowship to his fellowship. While he has the ters concerning overseas onshore/ study at Duke after vigorous compe­ option of refunding the money to the offshore construction business, tition. Last May, he received another government if he decides to go into including consortium/joint-venture LL.M. from Duke. He was attracted to private practice, James does not agreements, shipbuilding contracts, Duke because of its reputation in object to the time commitment project management at construction Taiwan, and the freedom given to imposed by the government. "This sites, research of foreign laws, and international students in chOOSing (arrangement) seems like a fair deal registration and establishment of courses from a great number of to me. There is no free lunch Nippon Steel's branch in Singapore. offerings. He has noticed, in observ­ anyway" he says. After all, according Nobuo was attracted to the LL.M. ing Duke Law students, that "some to him, government employees enjoy program at Duke because of the law students seem to pay no attention to an above-average social status in school's construction law and com­ what's going on outside the Law Taiwan; and when he returns to the merCial arbitration courses. Nobuo is School." government, he will receive a not so much interested in the degree His academic focus is on interna­ promotion. But he says, "Most of all, I as in acquiring knowledge of law tionallaw, international business can contribute what I learn from relating to international construction transactions, and American laws and here to the further development and contracts that will be helpful in his regulations relating to foreign trade. progress of my country" He adds work. Nobuo is sponsored through He admits that, "Some of these that, "Should I decide to enter into Nippon's overseas study fund, and courses are also available in my private practice in the future, I would hopes, after receiving his LL.M. , to country, but while studying here, I choose to practice law in my gain practical training by working in can study them from a different angle country" rather than return to the the legal department of a construc­ (an American's point of view and United States. tion company in the United States. practice), and I can have direct Huei-Huang Lin received his Two students from Taiwan, James access to the updated materials." LL.B. from National Chungshin Uni­ Chen and Huei-Huang Lin, are Janles enjoys studying at Duke verSity in Taiwan. From 1976 to 1979,

)

Xuan Yan Yuan Ping Akira Taguchi VOL. 4, NO.1 / 57 he held a judgeship in Keelung Dis­ The subject of his thesis involves and brother-in-law who live in trict Court. Judgeships are attained the use of civil remedies to give Dallas. only by passing a very strict and restitution to criminal victims. This Suk-Ho graduated from a college highly competitive examination. joint civil/criminal legal action, of law in Korea and came to Duke to Those who pass are required to be called the "continental system" pursue a LL.M . degree. After com­ trained as professional judges, and because of its wide use in Europe, pleting his master's work and getting enroll in a mandatory two-year pro­ allows criminal victims or their survi­ his degree in May, he entered the].D. gram at the Judge-Prosecutor Training vors to sue for damages in the same program as a second-year student Institute before commencing their action in which the defendant is and will graduate in 1987. Several of judicial careers. Additionally, Huei­ prosecuted. This system is already the classes he took for the master's Huang has served as a prosecutor in working in Taiwan. However, Taiwan degree count toward the ].D. but he both Chunghua and Taichung district is a civil law jurisdiction, and there is also taking a couple of first-year courts. From 1979 to 1981, he served are no jury trials. Part of Huei­ classes. as a judge advocate in Taiwan Gar­ Huang's work is addressed to the Suk-Ho suggests that Duke allows rison Command, and from 1978 to feasibility of adapting this restitu­ foreign students in his position who 1984 lectured at National Chunghua tionary device to a system using jury have completed a master's degree to Educational College. trials. forego the first year ofthe].D. pro­ His government sent him to Twenty-eight year old Suk-Ho gram to encourage more interna­ Duke to do research in comparative Bang had never visited the United tional students to come to Duke. He law for the purpose of reforming the States before last year when he believes it is much easier for foreign legal system in Taiwan. Huei-Huang entered Duke Law School. Suk-Ho is students to be admitted to Duke than received his LL.M. degree from Duke from Korea. According to him, it is for American students. in May 1985 and is spending two studying law in the United States is a He says that twenty-five years ago, more years at Duke to earn an SJ.D. fairly recent phenomenon for Harvard had the same policy of degree. He believes the advanced Koreans, although they have been allowing international students to degrees will be "very beneficial" to studying in Germany for years. enroll directly into tl1e second-year him when he returns to Taiwan as a Suk-Ho chose to come to the United class but that the program became so government counsel after finishing States rather than to Germany popular that it has become very diffi­ his studies. because the time commitment is cult to be accepted tl1ere now. He While at Duke, Huei-Haung is shorter (three to four years versus believes that, Similarly, Duke will taking a very broad range of courses; seven to eight years in Germany) and become very much more competi­ however, his concentration is in the he will have more career flexibility tive for international students in the criminal area. He is currently when he finishes. Had he pursued a near future. enrolled in Trial Practice, Federal German degree, he would teach law Suk-Ho spent the past summer in Criminal Law, and Civil Procedure when returning to Korea; with an the United States, working in the and is also working on his master's American degree, he can teach or legal department of a company for thesis. practice law. Suk-Ho also has a sister six weeks. He is now taking a very

Lin Yi-Ho Junko Nishibatake Nobuo Shimakawa DUKE lAW MAGAZINE / 58

Huei-Huang Lin james C. Chen Suk-HoBang

heavy course load (sixteen credit he is also interested in Washington, least three to four years. He may also hours) and interviewing for a D.C. A problem, he says, is that most pursue a two-year S].D. degree in summer clerkship with law firms for firms' programs for international law­ the United States after practicing law 1986. He originally concentrated his yers are for six months to one year, in an American firm, but he plans efforts on California firms because of and Suk-Ho wants to stay and prac­ eventually to return to Korea. the high Asian population there, but tice law in the United States for at

Instruction inJapanese Law

In 1985-86 two special courses in and Yale. His major work in English Japanese Administrative Law. Luney's foreign law were featured in d1e is Environmental Law in Japan, work is partially supported by the curriculum. A seminar on Japanese published in 1981. He teaches Jap­ Duke Pacific Studies Program. A Public Law was offered in the fall , anese civil procedure and constitu­ graduate of Hamilton College and directed by Professor Koichiro Fuji­ tionallaw. His research specialty is Harvard Law School, Luney practiced kura and assisted by Percy R. Luney, comparative torts and compensation law in the Department of the Interior Jr., and Masahiro Usaki. Fujikura, a in Anglo-American law. Usaki, also a and with a private firm in Washing­ native of Tokyo, was a Visiting Pro­ native of Tokyo, was trained at ton. He has taught at Antioch and fessor in residence for part of the fall Waseda University. He is now a pro­ North Carolina Central University, term. He is a graduate of Doshisha fessor at Tsuru University in Tokyo, where he is now a tenured professor. University, where he later served as and will spend 1985-86 as Scholar in In 1983, he was a Faculty Fellow of dean, and Amherst; he also holds Residence at Duke. the North Carolina Japan Center and graduate law degrees from North­ Luney, who came to Duke in 1985 a viSiting scholar at the University of western and Harvard. Presently Pro­ as Martha Price Research Fellow for Tokyo, a position which he renewed fessor of Law at d1e University of two years while he continues to in 1985. Tokyo, he has also taught at study Japanese law, also offers a California, Emory, Harvard, Hawaii, research tutorial in the spring in VOL. 4, NO.1 / 59

In China law degrees can be Xi-Qing Gao: achieved several ways: a four-year Peoples Republic undergraduate progranl or two years of technical training are the ofChina most usual paths. Ordinarily at his school, law students go for five years Attitudes toward different races because time is spent on mastering is what surprised me the most about English. Xi-Qing, however, went for America. In China, we thought the three years' "advanced study for spe­ Civil Rights movement had changed cialized knowledge in international things dramatically, ... slavery was subjects" because he already had an just in museums. Still, I believe the undergraduate degree. us. is probab~y one of the few ''You do not need to go to nations which treats minorities com­ school to be an attorney in China. paratively fair~y under the law It is Anyone with two years or the better than other countries here." equivalent [e.g., self-study) can Xi-Qing Gao is from Xian, the become one. In China, you can't ancient Chinese capital. He is mar­ choose your job. The market is not ried to Shu-ya Zhang (women retain Xi-Qing Gao tllat mobile; there is only a small their surnames upon marriage in range to pick from both as far as China). Shu-ya works at Duke Law location and trade. Peasants study Library. They have a three-year-old Peoples' Republic of China (PRC) at law to elevate themselves. Chinese son, Da-Qian Gao, who is staying Duke Law School. law is not so complex that tlley can't with Xi-Qing's parents in Xian. Xi-Qing has several favorite do it." Xi-Qing went to college at the classes. Jurisprudence is one be­ The bar examination is only for Beijing Institute of Foreign Trade cause he alwavs has "been inter­ tllose without formal classroom (now called the University of Inter­ ested in philo~ophy and history." training. For regular law students, "a national Business and Economics). Two others are Constitutional Law law degree is enough. You are There, he majored in English and and Criminal Law because tlley assigned to work in legal areas, or International Trade. He went on to demonstrate tlle wide differences you apply and are approved to be a law school in the same university. between the underlying American lawyer. The committee looks at your After law school, an American and Chinese cultural philosophies. background (and test scores if you law firm invited him to be a foreign For instance, "it was surprising have no legal education)." legal consultant to them for one that a fundamental right here is the Summer vacations for PRC law year. Xi-Qing spent six months in protection of individual rights, even students are now two months long. San Francisco (there, he was amazed if tlle individual is wrong in compar­ Most students go home because at how cold June could be!), three ison to tlle interests of society as a there is "no real chance to work months each in Washington, D.C. , whole. In China the individual inter­ until they graduate in law. Some will and Los Angeles, and brief periods ests can be sacrificed for those of do volunteer work/study in a com­ in Atlanta, Houston, and New York. society at large. There are less pro­ pany, but it is not legal work for the Once here, Xi-Qing was in a cedural protections. The Chinese most part." position to realize a long-held desire would regard Anlericans as over­ In China, colleges are affiliated to study American law. He audited protective." with another institution such as a classes at Hastings and Golden Gate Xi-Qing feels his international court, law firm, or company. His Law Schools, but soon concluded background has cut bOtll ways for school was affiliated with a foreign that this method of legal training him in law school. At first, he used a trade company. "Students are usually was inadequate. To really grasp tape recorder in classes. He soon required to work for these institu­ American law, he felt he needed to gave it up, though, because it took tions during their last year. That's enter a program of regular study. too much time to re-play the record­ more like an American clerkship, Attorneys at his firm advised Xi-Qing ings. His Chinese legal training hin­ although they aren't paid." to pursue a full J.D. so he would dered rum "a lot" in Constitutional After Xi-Qing receives his J.D. in have greater understanding of tlle Law. May 1986, he plans to work in an whole American legal system. On the other hand, in his courses American firm, probably in New Duke Law School admitted on Ethnic Group Relations, Juris­ York or Washington, D. C. Jeantet in Xi-Qing first. He had heard Durham prudence, and International Business Paris, France, has invited him to was a nice place to live from a Chi­ Transactions his "wider view and work for them in late 1987. There­ nese friend, Xi-Min Shi, who was in different perspective" complemented after, he will return to Beijing to school here. Xi-Qing thus became tllose courses' international teach at his university. the second Nixon Scholar from the orientation. China has "nearly no private DUKE lAW MAGAZINE / 60 practice. In the past few years we Chinese law is more equitable in refuse it or not. People are sent out started getting law firms not affili­ nature. The question is whetller a to investigate. The court may remand ated with any government instru­ result is 'fair' in the common sense the case to the lower court for mentality, trying to work in as neu­ of the word. The Chinese system is retrial according to what is found, tral a manner as possible. Almost much less doctrinal than common both as to factual findings and legal everyone works for the government law: reasoning. The deciSions become one way or another." "Chinese laws are patterned after law immediately when they are Xi-Qing is currently a part-time tlle Japanese, which, in turn, are pat­ handed down." lawyer with a thirty-member firm terned after the French and German Cultural differences also strike affiliated with the China Council for systems. During the 1949 Revolution, Xi-Qing. For example, Americans tlle Promotion of International we got some things from the Soviet are more concerned about money; Trade, a civilian organization. "It is system which we still have. personal property, and material more neutral than other firms. "China has no formal civil code things-"although that is changing Beijing municipal firms are a lot yet. The criminal code and rules of in China too." More pro bono work larger; they have former Bureau of civil procedure are complete, how­ is expected of the PRC lawyers. Justice people." This past summer, ever. It's trial-and-error basically. Our "The Chinese traditionally do Xi-Qing worked for a branch of a system is thirty years old, compared not have much, so they don't mind New York firm in Hong Kong, giving to six or seven hundred years of giving things up. Here it is difficult him a chance to visit Japan and his deliberations for the common law to ask people to give up anything for hometown. svstem. US. law is much more com­ another. For example at a store if His mom's cooking and "friends plex, sometimes unnecessarily so." you forget your money, people do Witll whom I can talk deeply" are Judges are appointed in the PRe. not want to lend things. You think things Xi-Qing says he most misses There is one four-tiered court three times before borrowing." from China. (Now Shu-Ya, his wife, system: the trial court, an interme­ Moreover, Americans "are not is here and serves him "Chinese diary court, tlle High Court of a afraid to voice their views at all. If food at every meal.") Otherwise, Province, and the Supreme Court. people do not agree, they will argue Xi-Qing keeps up with Chinese cul­ The High Courts "usually have about strongly. This is not only from the ture through a free subscription to every right of the Supreme Court." social system, but your cultural back­ the Peoples'Daily (the Communist The Supreme Court "does not have ground. The Chinese do not want to Party newspaper), as well as records arguments in front of them. It is contradict someone bluntly and and tapes of Chinese music. more a reviewing panel. For embarrass them. It is social etiquette. Several differences between instance, death penalty cases must American lawyers in China, I have Americans and tlle Chinese are get Supreme Court approval now: noticed, get frustrated with Chinese apparent to Xi-Qing. For one thing, ''You can't appeal all the way up indirect answers. 'Say yes or no!' tlle Chinese legal system is more in China; you can only appeal once. tlley insist." like civil law in that it is mostly Only litigants in the intermediate Xi-Qing says he will miss the codified, except in a few areas in court can appeal as of right. For wide variety of opinions and views commercial law where it most others, the parens patriae idea expressed in US. news and litera­ closely resembles a common law exists. They must go to the provin­ ture, as well as "driving a car on a system. cial governor, tlle Party Chairman, or highway. In the US. you can go any­ "We are just developing the law; petition tlle court for certiorari. where by car-that is just impos­ it's very crude comparatively. China "Once the court gets a petition, sible in China." Xi-Qing, a modern­ has had laws for thousands of years, from either regular channels or day cowboy in his mustard-colored but the law was very different. It was from the Party, etc., it will look into Pinto, has driven off into the sunset feudal until early in this century. the matter and decide whether to all over America. VOL. 4, NO.1 /61 Duke Students in China

Five Americans, past and present Her previous travels have taken Duke Law students, left September Allison to London, Canada, and 10,1985, for eleven months' law study throughout the U.S. She is originally at the People's University in Beijing, from Long Island, New York, but her China. They are: Allison Rottmann, family home is in Rhode Island now. Daniel Scheinman (rising second­ As a politiCS major at Brandeis years), Ross Katchman (a rising third­ UniverSity, Daniel Scheinman had year), and Gerald Lee and Don studied and written about reform in Gotcher (graduates). communist systems. Another first­ Duke Law School has had Chi­ year student at Duke told Dan about nese Nixon Scholars for several an opportunity to go to the People's years. These five Americans are the Republic as an exchange student first to complete the exchange from Duke Law School. Professor between Duke and the People's Uonathan] Ocko "was also very UniversitY, as well as the first Ameri­ encouraging and helpful. The chance cans ever to study at People's to go to China permitted me to University. broaden my experience and pursue The Chinese academic year runs my interests before I got caught up in from September to early July. Their Allison Rottman the co 11 ege-to-Iaw-schoo I-to-fi rm first semester is devoted to learning grind." the Chinese language. This training International Law was always an will continue in the second semester, tional Law. interest of his. He was hoping to get along with basic law classes in She believes "it will be easier to involved in China trade issues some Chinese. They will have a translator break into practicing International day: increasing Chinese access to available. Law after studying in China." Once at American goods and providing Chi­ The American students will have a firm, Allison expects to be "less a nese market contacts for American the option to take English-language lawyer and more a diplomat. In bUSi­ companies. courses on Trade Law, Economics, or ness joint ventures, for instance, I "Lawyers have an opportunity to International Business at the Foreign would know how the Chinese think bring about vast changes in the prod­ Trade Institute of the University and approach law. I can speak the ucts and technology available to thiS of International Business and language and deal with them. I could country. Law can be a very positive Economics. both explain the contracts and show Tuition and housing in Beijing is them around." After her loans are free for the Americans. As well, they paid off, Allison hopes to work for receive a generous stipend from the the United Nations or the State Chinese government of 200 yuan! Department. month (approximately $100.00) for While most of the other Ameri­ food. The students pay Duke Law cans going on this exchange pro­ School a fee to hold their places in gram do not speak any Chinese, their class and they purchased their Allison has had college language own plane tickets. training in Mandarin. "I am confi­ At George Washington University, dent;' she said, "that I will regain my Allison Rottmann majored in Interna­ fluency once I am in China. My tional Affairs, with a specialty in East ability to speak Chinese will be most Asian studies. She has "always been helpful because we will have much fascinated by Communism." free time. The big barriers will be "It was a toss up for me between reading and speaking the language." a PhD. program and law school," The Chinese Nixon Scholars at Allison explains. "I do not like Law Duke Law School are sending pack­ School all that much. I really missed ages via Allison to their families and my Chinese studies:' Upon her friends. Delivering them should return to Duke, Allison hopes to create many visits to fill up her free pursue a LL.M. degree in Interna- time. Daniel Scheinman DUKE LAW MAGAZINE / 62

force in this environment." Dan is tural Revolution, many lawyers were "experiences will be largely market­ clearly enthusiastic about the pros­ thrown in jail. Now reforms are able. The Chinese language I will pect of being "a pioneer in many being introduced. The government have learned will help in Chinese respects." sees a need for law in the business trade law practice, or in joint ven­ Last summer was a busy time for and commercial areas, for example. tures with the Chinese government Dan. He is from California, but Every day, much law is codified. Pro­ and American businesses. worked for Boston's Special Strike fessor Chao at the People's UniverSity "What differentiates me from the Force on Organized Crime. In drafted tl1e Commercial Code which other applicants is my undergraduate addition, he hired a tutor and took has only recently come out." degree in Quantitative Business Anal­ Mandarin Chinese classes at night. Ross had taken a Chinese Law ysis and the practical experience I When he left for China, Dan course from Professor Jonathan gained in the use of statistical could read and write 300 characters, metl10ds while working as a techni­ as well as speak simple sentences in cian in a General Electric quality basic grammar. Once there, "I just control laboratory Many of the topics have to build my vocabulary and that I have studied-linear program­ memorize words. Knowledge of ming, time series analysis, computer 3,000 characters is necessary to read Simulation, statistical analysis, as well a newspaper." as basic finanCial, marketing, account­ Other than Mandarin and English, ing, and management concepts-are Dan speaks Hebrew and "butchers" of interest and value to China. Spanish. He has backpacked through­ "One important problem that out Europe and the Middle East. China will face in its attempt to Perhaps Dan will b~ awarded a industrialize is the waste of resources. ll.M. degree for his schooling in Although I make no pretensions of PRC; but "I love Duke Law School:' being an expert, I believe tl1at my he explains:' I anticipate remaining background in computer modeling, there for my last two years toward a fundamental business concepts, and J.D." American commercial law provides "It's hard to say my reasons for me with something useful to offer going [on the People's Republic of the Chinese." China exchange program r says Ross Ross Katchman Ross speaks "only a little Spanish, Katchman. "I have always been fasci­ some Hebrew, and English." To pre­ nated by China. It will be a unique pare for tl1is trip, Ross studied Chi­ experience, to be immersed in a Ocko at Duke. He saw a notice in the nese language on his own in the society which only recently became Herald about an English-teaching summer. "Mandarin:' Ross explains, accessible to Americans. China itself pOSition at Fudan University in "is a tonal language. The same word is undergoing a number of changes China. He approached Dean Car­ can be said four ways, giving it four and Westernizing influences. This rington about that opportunity, but meanings." When he left for China, trip will be really exciting and adven­ decided to shift gears when he Ross could not read or write Chinese turous for us. learned that the Dean and Professor characters, only English phonetic "The chance to be in China now Ocko were setting up this exchange representations of Chinese words. is the opportunity of a lifetime. The program with the People's University Once back at Duke, Ross plans to social and economic complexion of Ross is "pleased with the way the "work on my Chinese language the country is changing dramatically program is taking shape. I am really some more." He plans to finish his Generations of Chinese who were excited and very much appreciate all third year toward a J.D. "Since this is force-fed Maoist doctrine are now tl1at the Dean has done. the first year of the American half of being told that much of what they "The Dean set up a meeting with the exchange, it's not clear what learned was wrong; the managers of past Georgia Governor George credit we'l! come back with. There Chinese business have become profit Bugsbee, who is presently in China may be an option for a ll.M. in maximizers; foreign corporations are trade law practice. There is a lot of International Law." employing Chinese workers; and opportunity in the area. Perhaps I "We have a couple breaks and there is serious talk of forming a can work for a Chinese law firm , or will have a chance to travel in China Chinese stock market. in Hong Kong, for six weeks before I then:' Ross expects. He has never "People's University is the best come back to Duke." travelled outside the U.S. before, law school in China. During the Cul- Upon his return, Ross feels his except to Canada. VOL. 4, NO.1 /63

world's richest country, this is sad Anna Shereen and wrong. The category of people Chacko: Malaysia who rely on public transportation are d1e same ones who fall d1rough "In Malaysia] there is an ethnic the cracks for medical treatment. I power struggle] strife] and preferen­ never knew there would be such tial treatment for the Malay indige­ extremes here. nous people. I great~v appreciate the "Comparing the States to Asia is degree of integration in America. It's like comparing black to white. It is the ultimate melting pot and could, different altogether; d1ere are no in this regard] sen'e as an example." worries about basic comforts here. Anna Shereen Chacko is from The complaints in Asia concern Penang, Malaysia. She left home at much more basic needs. Econom­ age sixteen for England, where she ically, Malaysia is relatively well-off. It spent two years in pre-university, has its own brand of capitalism, yet three years at Aston University in things taken for granted here are not Birmingham, and then one year in Anna Chacko even available in Malaysia." the Inns of Court School of Law. Anna appreciates the "level of After she qualified as a barrister, sophisticated practice" she has expe­ Anne worked in London for a short practice. She is rotating through the rienced in America. Malavsia basi­ time, then returned to Penang. She latter department now. callv follows d1e British common law practiced there for two years in a "I like Cleveland because it's old. svstem. Anna found less difference small firm gaining "good base-level It has lots of history and some really between the American and Malaysian experience." lovely buildings. I recently got a car systems than she expected. A master's degree was her next and so I've seen more of the city." Judges are appointed to serve. goal. "I wanted to try a new educa­ "It was awful in the beginning "There is no political angle. Either tional system. I wanted to try the U.S. because I didn't know anyone. I they are selected from among the instead." Anna's sister and brother knew of people in Cleveland through best practitioners after years of were already here, in Austin, Texas, friends, who coincidentally were also watching or they work their way up and Lawrence, Kansas, respectively Indian. I did not consciously go from lower-level courts. The caliber The An1erican Bar Association looking for them, yet now I have of judges is high, as is d1eir integrity sent Anna a list of law schools. She many Indian friends here." and independence. They are very talked with people to arrive at her Anna speaks Tamil , Mala}~ English, good, especially those handpicked top ten choices. Duke was the first and Malayalam (her parents' mother after many years' consideration." law school to admit Anna. She got "a tongue; they are originally from The Malaysian court system has very good response from the Kerala, India). English was the four levels: Magistrate, Sessions administrators: very warm, welcom­ medium of instruction while Anna Court, High Court, and, finally, Fed­ ing, and prompt. The program was in school in Malaysia. eral Court. Subject matter jurisdic­ sounded attractive because the inter­ Nowadays, Malay is the language tion is different in the various courts, national students were not isolated; of instruction. "Malay is a limited "so sometimes you skip to a higher they were graded with everyone else language because it is relatively new. level straight awar" and mixed in with Americans for They often take words from English Law school in Malaysia is a four­ classes. It was a small school; that and just re-speU them to expand the year undergraduate degree. Over was important. When I got here, the vocabulary" summer mond1s, students do not pretty campus was an added bonus." Anna really misses d1e food, her clerk for a law firm. "That is peculiar Intellectual Property was one of home, and family in Malaysia. She to the U.S. However, when you finish Anna's favorite courses at Law School. cooks Indian food here in the States your law degree, you have twelve She considered it a "fun, unusual and remains in "close touch with months' pupillage with a practitioner. subject." Another favorite was her familv and friends who are Indian. I It's like an apprenticeship, pupil and Seminar in Child Practice because use my mother tongue often." master. You become like a shadow. she "had trained as a barrister. It was Her travels have taken Anna to You are not admitted to practice in a chance to study litigation instead of India, Sri Lanka, and Europe. In the Malaysia until after this pupillage doing it. The class was easy and U.S.A., she has seen most of the East period." The largest Malaysian firms enjoyable." Coast and has driven from the Mid­ are in Kualalumpur, the capital. They Anna received her LL.M. degree West to California by car. have about Sixty lawyers. Most attor­ in May 1985. She is working at The American standard of living neys are in private practice. "People present in Cleveland, Ohio, for a firm falls short in comparison to that of in government are the local gradu­ which has a public bond finanCing, Britain in Anna's eyes. "There is no ates. If they have studied in England, litigation, labor, and corporate law minimum standard here. For d1e they almost always go to private DUKE lAW MAGAZINE / 64

practice. ilar to judicial clerks]. They have would have been sunk [here at work] "While some male local gradu­ some rights and duties of their own. with just one year's exposure to the ates enter private practice, women They can take and hear certain mat­ U.S. system. England was my founda­ almost exclusively enter government ters and minor motions." tion; I see the U.S. system through service. They become magistrates Her British training was Anna's that experience." and Senior Assistant Registrars [sim- "basis of understanding. Without it I

Alumni Tour China

Last May, the Duke Law Alumni of the founders of one of the first given by the faculty of the University Study Delegation travelled for two "private" law firms in China. Both of International Business and Trade. weeks in the People's Republic, vis­ alumni and David Peterson, an The group will also meet with mem­ iting Beijing, Xian, and Shanghai. The adjunct faculty member of the Law bers of China's new "law firms;' arbi­ delegation, comprised of Jonathan School, interviewed students at the trators and other officials of the Ocko, Associate Professor of Chinese Fudan University Law School. Counsel to Promote International Legal History at Duke Law School, In the alumni tour planned for Trade, and legal scholars. In Shang­ Yuan Ping, a second-year law student May 9-26, 1986, twenty-two alumni hai, the delegation will observe the at Duke from the People's Republic will have the opportunity to become mediation process and civil court of China, and d1irteen alumni, was acquainted with the rapidly devel­ trials. Meetings will be held with the organized to increase alumni's under­ oping contemporary legal system in staff of the Legal AdviSOry Offices and standing of the growing exchange the People's Republic. The delega­ the newly established "law firms ." In program between Duke and legal tion, during its two-week excursion the rural areas, the group will meet institutions in the People's Republic. to Beijung, Xian, Shanghai, Wuxi, and with legal officials. In Xian, a City In Beijing, d1e delegation met with Suzhou will meet wid1 judges, law which contains some of the richest legal advisors of the Chinese Law professors, prosecutors, police, and archaelogical sites in China, the Society Legal AdviSOry Center, an lawyers. The group will be led by alumni will meet with Chinese institution that functions as a referral Duke faculty, including Jonathan prosecutors and police. and advisory body for public and Ocko, and Chinese students enrolled The group will also spend two private firms in the People's Republic. in Duke Law School. nights in arita,Japan-one prior to The delegation also met with the law In Beijing, a Supreme Court justice arrival in Beijing and another imme­ faculty at People's University Ocko of the People's Republic will address diately after departure from Shang­ interviewed students at People's for the delegation. Additionally, a five-day hai at d1e end of the two-week tour. d1e exchange program here at Duke. series of morning lectures regarding In Shanghai, the group met with one investment and economic law will be VOL. 4, NO. 1 / 65 The Duke Center for Studies of Law on Investment and Trade in China

The Center is an activity of the are available. The qualifications of California offices; Mudge, Rose, Law School chartered by its faculty Duke Law students to perform these Guthrie, Alexander & Ferdon in The members of the Center are stu­ services are exceptional. The Duke ew York; and Coudert Brothers in dents at the School from China and Law Library maintains a growing col­ Hong Kong. He has published sev­ other students, faculty members, and lection of working materials and, eral articles in China on American alumni retaining an interest in the through the contacts of the School, law, and has translated articles on development of the legal system and can secure any necessary materials electronic computers, technology profession in the People's Republic that may be available in China. transfer, leverage leasing, and joint of China. The mission of the Center The Center will charge appropri­ ventures in China. He is a member is to engage its members in a shared ately for its services. All of its income of the Duke J.D. Class of1986. intellectual exercise which will be of will be paid to the Duke China Law Ross Katchman is a native of service to persons and firms outside Fund to be used for the support of New York and a graduate of Pennsyl­ the Law School who are likewise students coming from the People's vania State University. He has com­ interested in legal developments in Republic of China to the Law School pleted two years of law study at China. to study in the J.D. progran1. Firms Duke, and is studying in 1985-86 at The President of the Center is having needs for the kind of services People's University in Beijing. appointed by the Dean of the Law which the Center can provide are Lai Fang earned her bachelor's School, and is responsible for the invited to become patrons of the degree in English at the China Uni­ distribution of work asSignments and Center for an annual fee of one verSity of Foreign Studies. She has for assuring effective quality control thousand dollars; patrons will be served as a lecturer in English at in the services provided by the given a preference in making ser­ People's University in Beijing, and Center. The appointment will nor­ vices available, and will not be has translated a number of articles, mally be made in April of each year charged for services received until including one for the Readers' Digest. for a one-year term. The President their value exceeds the patron's fee. She is a member of the Duke Law will be assisted by an Executive Com­ For 1985-86, the standard fee charged Class of 1988. mittee also appointed by the Dean at by the Center is eighteen dollars an LingJia-An earned her bachelor's the same time. These appOintments hour for each hour of a member's degree from Peking University in will be made on the advice of the time invested in the task assigned; an English literature. She taught English, continuing members of the Center, additional fee is charged by the Law first at High School 138 in Beijing, and with the consent of the Interna­ School for secretarial services, and then at Peking University She is tional Studies Committee of the Law postage, and toll calls. a member of the Duke Law Class of School. The current members of the 1987, and trained during the sum­ The services provided by the Center, some of whom are discussed mer of 1985 with King & Spalding in Center will draw on the special elsewhere in this issue of Duke Law Atlanta. expertise of Chinese students who Magazine, are: William G. Maddox is a native of are pursuing the J.D. degree in the Louisville and a graduate of Harvard. Law School, and of American stu­ MEMBERSHIP LIST He also holds a master's degree dents who have studied Chinese law Gao Xi-Qing, President of the from the Union Theological Sem­ and language in China. The services Center, holds a master's degree from inary. He has completed one year of will include research on the law of the University of International Busi­ law school at Duke and is teaching China; translation of legal documents ness and Economics in Beijing. He English at Fudan University in from Chinese to English, or from has been a lecturer in the law Shanghai in 1985-86, while pursuing English to Chinese; and interpreta­ department of that university. He has his study of Chinese law and tion for Chinese business visitors to been employed by the CCPIT Arbi­ language. the United States, or American visi­ tration Commission, the Canton Jonathan K. Ocko is a profes­ tors to China whose travel can be Trade Fair, and the China Global Law sional historian holding a secondary scheduled at times when members Office; also by Graham & James in appointment in Law at the Law DUKE LAW MAGAZINE / 66

School; his field is Chinese Legal ner, Vonnegut, and Cheever. He tural delegation from Wisconsin; History His Ph.D. was earned at received his].D. degree from Duke and for the TSingtao Commodity Yale, but he trained with Professor in 1985, and is continuing his train­ Inspection Bureau. He is a member Jerome Cohen at Harvard Law ing with Mudge, Rose, Guthrie, Alex­ of the Duke Law class of 1988. School for a year in 1979-80. His ander & Ferdon. He has performed Yan Xuan holds a degree in major work to date is Bureaucratic legal services for the Embassy of the English and International Affairs Reform in China in the Nineteenth People's Republic of China and has from the China University of Foreign Century; published by Harvard in also been employed by Covington & Studies. He has taught in the law 1983, and reviewed in this issue. He Burling. department of People's University is the President of the Chinese Legal Tian Hui earned a bachelor's and has translated articles in law History Association. His present degree in English at Peking Normal and in business. He is a member of interests extend to the contempo­ UniverSity She taught English at the Duke Law class of 1987 and rary development of legal institu­ High School 196 in Beijing and as a trained during the summer of 1985 tions in China. member of the English Department with Dechert, Price & Rhoads in Allison Rottmann is a native of at People's University She is a mem­ Philadelphia. New York and a graduate of George ber of the Duke Law class of 1988. Yuan Ping holds a degree in Washington UniverSity She has com­ Wu Yan-Lei holds degrees from English from the China University of pleted one year of law study at Duke Fudan UniverSity and the East China Foreign Studies. She served as a pro­ and is studying at People's University Institute of Law and PolitiCS, both in fessional interpreter in China for in Beijing during the academic year Shanghai. He has been employed several years preceding her appOint­ 1985-86. with the United Law Firm of Shang­ ment to teach English at People's A. Daniel Scheinman is a native hai, First Branch, and has served as University in Beijing. She is a of California and holds a bachelor's an administrator and as a teacher in member of the Duke Law class of degree from Brandeis. He has com­ the Law School at Fudan University. 1987 and trained during the summer pleted one year of study at the Law He is a member of the Duke Law of 1985 with McDermott, Will & School, where he will graduate in class of 1988. Emery in Washington, D.C. 1988; he is devoting the 1985-86 year Xia Yuan-Tao holds a bachelor's Zhao Jiu-Su holds a Master of to study at People's UniverSity in degree in English and a Master of Jurisprudence degree from Fudan Beijing. Laws degree from dle University of University in Shanghai. He has also Shi Xi-Min holds a master's International Business and Econom­ trained in the design and produc­ degree from the University of Inter­ ics in Beijing. He has taught law in tion of thermo instrumentation, and national Business and Economics in that university and has served as a has published a book on Italian Beijing. He has been employed in legal adviser to an import unit in history He has taught law at Fudan, the Chinese Ministry of Foreign Eco­ China. He has also served as an organized and taught a public train­ nomic Relations and Trade, working interpreter for a UN Conference on ing class in Shanghai on interna­ widl bodl American and Japanese Technology Registration; for Visiting tional business transactions, and has firms. He was a co-editor of a Chi­ Justice Brennan of the High Court of served as legal consultant and trans­ nese quarterly which widely circu­ Justice of Australia; for two major lator of legal documents to Chinese lated his translations of American American law firm representatives units. He is a member of the Duke literature, including work of Faulk- working in Beijing; for an agricul- Law class of 1988. VOL. 4, NO.1 / 67

BookReview Bureaucratic Reform in Nineteenth-Century China

onathan K. Ocko's Bureaucratic Reform in Provincial China: TingJih-ch'ang in Restoration Kiangsu, 1867-1870 is Significant in that it offers an entirely different approach to the critical study of the T'ung-chih Restoration. There have Jbeen a number of studies focusing on China's post- Taiping Rebellion period under the Ch'ing dynasty, perhaps none so widely recognized as the late Mary Wright's The Last Stand of Chinese Conseruatism: The T'ung-chih Restoration, 1862-1874 In The Last Stand of Chinese Conservatism, Wright examined China's central government and the major goals of the Restoration pro­ gram: the re-establishment of the network of local control, the rehabilitation of the economy, the reform of local government, and the resoration of a system of superior civil officials. In Bureaucratic Reform in Provincial China, Ocko, a former student of Wright's, tests Wright's view that the Ch 'ing dynasty enjoyed a revitalization and restoration of health and power after the Taiping Rebellion, and concludes that "viewed in terms of its own goals, there was not Tung-chin Restoration." Ocko maintains that the Ch'ing dynasty's "inability to restore a system of rule by superior civil officials and its consequent patent failure to reform local government impeded and attenuated every Jonathan Ocko element of the Restoration agenda." Recognizing that the T'ung-chih Restoration must be Ocko cites a number of reasons for Ting's failure, and, analyzed in terms of the local, provincial governments' by extension, the failure of other provincial leaders. achievements and failures in the Restoration effort, The most crucial reasons were the central government's Ocko chooses to examine the career of TingJih-ch'ang, lack of support and direction and the poor quality of who served as the chief financial superviser and gover­ local officials. The local officials were by and large nor of the Kiangsu province during the years 1867 to individuals unable to administer effectively because 1870. As Ocko notes, this study is not a biography but is they came into office through an examination system rather a "detailed exan1ination of three basic aspects of which gave them very little in the way of practical provincial administration-law and SOCiety, fiscal knowledge. The provincial leaders esentially had no affairs, and personnel-in which Ting is merely a control over the local officials, and, without support device that affords us a Singular insight into the process from the central government, were simply unable to ofthe Ch'ing bureaucratic machine." Ocko chose Ting build a competent and effective local bureaucracy. as the "model official" for a number of reasons, Aside from providing important new inSights into perhaps the foremost being that Ting was viewed by his the Chinese bureaucratic system during the Restoration colleagues as "one of the ablest provincial officials of program, Bureaucratic Reform in Provincial China also his time." Simply stated, if anyone were to succeed in gives the layman a sense of how a provincial govern­ implementing the Restoration program, it would have ment functioned during this critical period in China's been Ting. history Ocko, an Associate Professor of History at North Ocko examines Ting's efforts in social, judicial, and Carolina State University and Adjunct Associate Profes­ administrative reform, and arrives at the inescapable sor of Chinese Legal History at Duke Law School, is conclusion that Ting's administrative achievements fell currently working on his second book, which examines far short of his self-pronounced goals and policies. the concept of justice in traditional China. PUKE LAW MAGAZINE / 68

AFRICA AND MIDDLE EAST

Professor Visits South Africa

Duke Law Professor Donald L. Mr. Horowitz says the Group Areas problematic. Initially, the problem is Horowitz recently returned from a Act, the "pillar of apanheid;'j results to make the government understand two-week trip to South Africa where in the severe "restriction of blacks' that to achieve a multiracial SOCiety, he attended a conference sponsored spatial mobility" Under the Act, all there must be universal suffrage. by the Human Sciences Research land in the country is controlled by Beyond that is the problem of what Council (HSRC) to discuss a recent the government. "It requires a per­ type of voting arrangement to estab­ HSRC repon on intergroup relations. mit from a government officer to lish. The blacks want a fully demo­ The subject of the paper he delivered change the color of ownership of any cratic system, which they see as there was techniques to reduce parcel of land, even if the land is not achieved only by a one person-one interethnic conflict in Asia and Africa. allocated to a specific group area. In vote regime. On the other hand, According to Professor Horowitz, most cities, blacks are relegated, as "the leadership has said repeatedly the source of South Africa's problem d1eyare in Pietermaritzburg, to the that it wants negotiations and panici­ is racial subordination. Beyond that, township, bedroom developments pation at all levels but that this can­ however, there are obstacles to a generally lacking d1e amenities to not include one person-one vote:'·1 settlement. One obstacle is that some sustain a genuine community life."2 The government equates such a sys­ blacks and some whites do not admit The unrest of the blacks is not due to tem with majority rule, that is, black the legitimacy of the other side in discontent with material circum­ majority rule. "The illusions on both the country Some blacks, including stances but rather with the social sides will be hard to dispel. If white "certain leaders" of the banned inequality that the restrictions pro­ leadership thinks it can settle on the African National Congress (ANC) and mote and reflect. But while the gov­ basis of less than universal suffrage, the United Democratic Front (UDF), ernment has made some promises it is fooling itself. Surveys of black claim they are the indigenous people and concessions over the past several opinion show an acute sense of and that the whites are the colonists. months regarding various aspects of political deprivation. Similarl)~ it will This premise leads to uncertainty apanheid, "[wJhen it comes to group be difficult to persuade the UDF of and conflict as to the respective areas, the regime has dug in its the utility of unfamiliar electoral sys­ rights of the groups. heels."3 tems or political arrangements."" Horowitz states that in the past Second, the government recog­ While he was in South Africa, few months the government has nizes many blacks as citizens of the Horowitz spoke with many black and made many concessions to black so-called homelands, but it does not white leaders and interviewed peo­ demands, but "the government has recognize the homelands as pan of ple with different perspectives on the not really given anything d1at is a the country Thus, many blacks are current issues. He spoke with several strong step to becoming multiracial." not recognized as citizens of SOUd1 UDF members, although they were He cites d1ree specific areas in which Africa. To achieve the equal status often difficult to find. He met with there has been vinually no move­ they are seeking, it is clear that government people, Indians, Col­ ment by the government: the Group blacks must have South African oureds, Afrikaners, and members of Areas Act, the government's refusal to Citizenship. the white opposition ProgreSSive accord citizenship to all South Finally, blacks have been com­ Federal patty. Generally, people were Africans, and the continuing absence pletely left out of political repre­ "eager to talk and have a sounding of universal suffrage. sentation in the South African board in the form of an outside In his paper on South Africa, government despite the fact dut a pany," he says. 'After Apanheid;' presented to a new constitution provides a legisla­ In addition to participating in the packed lecture room at the Law tive house for Indians and one for HSRC conference, Horowitz tr~l\ 'elled School and then published in Coloureds. More importantly, blacks around the country speaking on the excerpts in d1e ovember 4, 1985, have no voting righl<;. Horowitz sees rights of minorities in the United issue of The Neu' Republic magazine, dle voting issue as one of d1e most States and on poliCies to reduce eth- VOL. 4, NO.1 /69 nic tensions in Asia and Africa. He countries that Horowitz has visited. central and important, such as segre­ gave a speech at the annual meeting Over the past twenty years Horowitz gated living and political power. of the Institute of International Rela­ has studied ethnic conflict in Thus, for the time being, Horowitz tions in Pietermaritzburg. He also MalaYSia, Sri Lanka, India, Guyana, contends that tile violence will spoke at Vista University, a black uni­ Trinidad, igeria, and the United probably continue. While there has versity in Soweto, at the University of States. In his new book, reviewed in been violence already\ what has hap­ Durban-Westville, which is an Indian this issue of the Magazine, Horowitz pened is minor compared to what university, at the University of Natal, a addresses the sources and patterns can potentially occur. "There is , mostly white university with some of ethnic and racial conflict and sug­ unfortunately, room on both sides blacks and Indians, and at tile United gests what policymakers can do to for escalation."6 States Information Service cultural achieve democratic, multiracial poli­ center in Johannesburg. tics in a society prone to conflict. Why did Horowitz go to South Horowitz contends mat in Soum l. The Nell' Republic, Nov. 4, 198'). at 20. Africa? He explains, "1 am very inter­ Africa neither side is ready to make Reprinted with permiss ion of the publisher. 2. /d. ested in what mechanisms could be tile changes necessary to achieve a 3. ld at 22. devised to make South Africa a multiracial society. The government 'cI. Id. peaceful, multiracial society." SOUtll has made only incremental, relatively S. Id. at 23. 6. ld. Africa's ethnic and racial problems insignificant reforms and so far has have ~ lot in common with omer refused to touch the issues mat are

~1Siting Professors Lawrence Baxter, P. D. Glavovic Professor Lawrence Baxter of istrative law endeavors, Mr. Baxter is course was the first such course Soutl1 Africa will be a Visiting Profes­ very Widely published in South offered at a South African university sor at the Law School in tl1e spring of Africa in the area of constitutional In addition to his research and 1986. Mr. Ba.'\.1:er will be teaching law. Furilier, he has a strong interest teaching involvement, Mr. Glavovic American administrative law. Cur­ in jurisprudence and social meory. At has much praaical experience re­ rently, Mr. Ba.'

decided to study law in the United George C. Christie: States, because he would like to work South Africa in a firm with an international prac­ tice and aJD. from a prestigious In 1980 Professor George C. American university is well regarded Christie lectured at several law throughout the world. schools in South Africa. At the invita­ Kwasi lives in Durham with his tion ofJohn Dugard, a leading civil wife, Jeanette, who is originally from rights lawyer in South Africa and a the island of Jamaica, and their two former visiting professor at Duke, Mr. school-age daughters, Abena and Christie was a visiting professor at Ama. Their teenage son Paakwasi the University of Witwatersrand in attends boarding school in Ghana. Johannesburg. He also lectured on Kwasi has found tl1e adjustment to tortS and jurisprudence at the life as a first-year law student to be University of Capetown, the Univer­ very draining. He and Jeanette have Sity of the Western Cape, and the had to set up house and to balance University of Stellenbosch, all in or familial responsibilities in addition near Capetown. to their work outside the home. Mr. Christie went to South Africa Kwasi regrets his studies prevent him partly out of curiosity and partly from spending as much time with his Kwasi Nyamekye because of his friend John Dugard's family as he would like. encouragement. Mr. Dugard had Kwasi has been especially pleased expressed concern about the increas­ by Duke University's helpful attitude Kwasi has tried to maintain his ing isolation of the South African towards international students. The cultural heritage by cooking local intellectuals and felt it was important staff of Duke's International House dishes, listening to Ghanian music, to keep them in touch with the rest on Campus Drive has helped ease and speaking Twi, his native tongue, of the world. Mr. Christie provided the transition to life in an American whenever possible. After a tl10rough such a link. university by organizing orientation search, he has found a shop in The political situation was less programs and providing advice and Raleigh which carries canned palm tense when Mr. Christie was in South counselling. In tl1e Law School, Judy nuts, the essential ingredient for his Africa, and he had hoped that there Horowitz, the International Student delicious palm nut soup. Kwasi would be enough goodwill among Advisor, and the offices of Deans would like to form an association of the South African people to enable Carrington and Swinson have con­ African students at Duke and to orga­ them to reach a settlement. He is less tributed to the success of the interna­ nize an African Cultural Festival in optimistic now, however, and believes tional program. The Law School's order to share traditional music, there is likely to be a lot more size and supportive administration costumes, and dance with tl1e Duke violence there. encourages all the law students to community interact with one another, both in Kwasi Nyamekye: and out of the classrooms. In Ghana, students generally Bharat Dube: Ghana attend law school directly after high school. They must complete three India Kwasi Nyamekye, a native of years of study and one year of Ghana, is in his first year of the J.D. apprenticeship in order to qualify as "In India, few people talk about program at Duke. For the past ten attorneys. There are now a few pro­ tbe weatber. Rare(v does one talk years, he has been a Professor of grams available for students who about salaries or whicb law finns Political Science at the University of have received undergraduate degrees are going to bire us. Americans usu­ Papua, New Guinea, where he taught in other fields and would like to al(v do not discuss life and deatb courses on international relations practice law. issues, tbe purposes in life, wbere we and foreign policy Prior to that, he The Ghanian legal system is are going. Broadly, Indians tbink in was a Research Fellow at the Center based upon the British common law tenns of millenia while Americans for Foreign Policy Studies at Dal­ inherited from its colonial past. Dif­ focus on day-to-day existence." housie University in Halifax, Nova fering historical, cultural, and polit­ Bharat Dube is from Calcutta, Scotia. He has done graduate work at ical influences have produced India. He competed for a national McMaster University in Hamilton, modifications unlike those in the scholarship to attend high school in OntariO, as well. American legal system. Kwasi has Wales. (That is the same school Kwasi's interest in law was been most surprised at the American where Beata Iracka-Jostmeier, a cur­ strengthened by his work in interna­ retention of medieval property rights rent Duke Law student from Poland, tional politiCS and foreign policy He notions. went.) Blurat intended to pursue an VOL. 4, NO.1 / 71

undergraduate education in Britain, by listening to tapes of Indian music, but Harvard University recruited him playing sitar, teaching and practicing and offered "a good financial deal" yoga, and reading novels and news­ to come stateside. He majored in papers. He also spends time with an Social Studies there. Indian student group and his Duke Law School also offered brotl1er, a journalist in Minneapolis, Bharat an attractive financial aid Minnesota. package-and a pleasant climate. It Bharat was very surprised by was an offer Bharat could not many Americans' ignorance about refuse: "Indian lawyers say the best t11e rest of the world. Some people, legal training is here in the U.S. , not he feels, are too "ultra-conservative only as a living, but also as far as and xenophobic." He is "glad Dean academic rigor." [Paul] Carrington and Professor and Law practice in India is more Mrs. [Donald] Horowitz have closely related to the British com­ increased the numbers of foreign mon law system than to US. prac­ students at Duke Law School. Inter­ tice. Judges are appointed after national students have a lot to con­ taking competitive civil service tribute with their different perspec­ examinations. India has one three­ tives on law, life, political situations, tiered court system: trial courts are Bhara! Dube and culture. This is the perfect at the lowest level, then each state opportunity to cash in on an insider's has a High Court, and finally New perspective," Bharat adds. "The for­ Delhi houses the Indian Supreme is Bharat's favorite subject because eign students often possess un­ Court. he finds the issues interesting. tapped musical, danCing, and Despite similarities to the British Blurat will receive his ].0. in speaking talents." (Bharat himself system in other respects, law school May 1986. He wishes to practice in has performed sitar concerts several in India is a three-year post-graduate international law, an organization times for the Law School community.) degree as in America. However, "no devoted to development and trade, Bharat wishes that 'j\mericans one works on summer breaks. Stu­ or diplomacy Understandably, the would endeavor to accept foreign dents relax, there is no emphasis on Bhopal-Union Carbide incident is a students for what they are and try jobs. Students may become appren­ case of special concern to him. not to impose their view of t11e tices with big law firms if they wish." In the short run, Bharat will world. Americans can learn a lot in The legal profession does not probably stay in the States, but he informal give-and-take too. Just have the same reputation and pres­ will eventually return to India. Bharat because foreign students can't talk tige as in the States. Indians joke, "If has no geographical preference as football or basketball, or drink as you 're not a success in other fields, to where he will settle, but he "loves many beers, doe not mean that become a lawyer." Foreign service, Boston." In the past, Bharat has they can't offer a good conversation! business, and medical careers all worked for the NAACP in Washing­ Likewise, foreign students have enjoy higher respect. To add insult ton, D.C. , the Nielsen Corp. in Chi­ much to learn from Americans." to injury, attorneys are not well-paid cago, the United Nations in New there. York, and also as "both a dishwasher "No comparison" exists between and cop at Harvard University in the size and scope of US. law firms Cambridge." Tahir Khilji: and those of India, Bharat believes. Bharat had been taught English Pakistan Few firms of more than 100 attor­ in India since the age of four or five . neys exist. Solo practitioners com­ He also speaks Hindi and Spanish, Tahir Khilji received his LL.M. prise the great majority of firms. but confesses that English is the lan­ degree in 1985 from Duke. He is Many lawyers are hired by the guage he feels "most comfortable originally from Pakistan, where he government. with." In addition to his journeys in studied at the University Law College When asked how he has coped twenty-seven states here ("all east of in Lal1ore. As in the United States, with American law school, Bharat Minnesota"), Bharat has travelled in students in Pakistan must receive an smiled broadly and said, 'Just India and Canada. undergraduate degree before attend­ dandy:" He thiflks his international The possibilities for "material ing law school. After a two-year perspective "has helped with Inter­ indulgence" is what Bharat will miss course of study at t11e law school and national Law but hindered" him in the most about the US. upon his a six-month internship, law students job hunting. He has also been hin­ return to India. Here in the States, are eligible to take the Low Court dered in classes because of his lack he mostly misses his family and Bar. After two years of practice, they of fan1iliarity of the U.S. government "Indian food and delicacies." Bharat are eligible for the High Court Bar. and legal systems. International Law keeps up witl1 his homeland culture Tahir had passed both bar exams and DUKE LAW MAGAZINE / 72

was a practicing attorney in Pakistan Group Home for mentally retarded when he became interested in travel­ and autistic adults. He finds his work ling to the United States to study law. especially rewarding, and would like At present, the Pakistani legal to find a job which would utilize his system is in a state of flux. The law background as well. His favorite country is under martial law and the class last year was a seminar in judicial system is torn between the forensic psychiatry which prompted often competing concerns of tradi­ his present interest in psychology­ tional Islamic law and the common related matters. He would most like a . law legacy of the British colonialists. job connected in some way with Tahir wished to learn more about the psychiatry. American legal system which had evolved as well from the British common law. His study at Duke has provided him with insights into both the American and the Pakistani adap­ David Goren: tations upon the British model. He believes Pakistan could benefit from Israel a Constitution like that of the U.S. David Goren was born in Jeru­ Dal'id Goren Tahir's an1bition is to return to Paki­ salem, Israel, and studied law at the stan after a few years of practice in Faculty of Law, Tel Aviv University the United States and to teach law at The law program in Israel is a four­ David's exposure to two different his alma mater. year undergraduate course of study societies and ways of life tends to At Duke, Tahir was most fasCi­ During the fourth year, students make him sensitive to policy nated by the administration of work at firms in the daytime and implications. exams. Unsupervised exams, which attend classes in the evening. After David was surprised to note the most U.S. students take for granted, graduation, they must complete an politicalization of the judicial are unknown in Pakistan. The system apprenticeship of six months to a appointment system in the United at Duke communicates the faculty'S year in order to qualify for the bar. States. In Israel, Supreme CourtJus­ The bar is a brief oral exan1ination tices are selected by a committee in contrast to the grueling two-day comprised of judges, members of ordeal common in the United States. the Bar, and members of the Min­ In Israel, the primary emphasis for istlY ofJustice. Their first consider­ bar membership is placed upon ation is the judges' prior profes­ field work. sional records rather than their David has always wanted to study political affiliations. Other factors law in the United States. Israel's such as sex and religious beliefs are common law system is based upon conSidered secondarily in order to many of the same principles and achieve a diversified and balanced poliCies as that of the U.S. Israeli judicial system. judges frequently rely on British and David believes it is very impor­ American legal developments, and a tant for law students to gain prac­ knowledge of American law can be tical experience before becoming very useful. David is in his first year members of the Bar. In the U.S. , the of the two years he will study at more common theoretical lecture Duke for his J.D. He would like to courses can be supplemented by Tahir Khilji work in an American law firm after elective clinical programs and his graduation from Duke and to summer or part-time employment. concentrate upon tax and interna­ Legal educators may find the Amer­ trust in the students and encour­ tional trade matters. ican legal system lacking an emphasis ages personal and professional In Israel, students learn a body on practical experience; however, responsibility of substantive law. Since the United the institution of an internship pro­ Tahir lives in Durham with his States is comprised of many different gram such as that in Israel can result mother, father, and three sisters, so jurisdictions, each with its own body in "enforced servitude." Because of he has had ample opportunity to of law, American law schools stress the economic benefits to practicing speak his native Urdu, to eat tradi­ general concepts much more than attorneys, David does not foresee tional Pakistani food, and to practice specific statutes. David finds this any radical reform of the Israeli Islam. Tahir is working now as a approach more conducive to the system in the near future. Home Teach~r at a Durham County discussion of policy questions. VOL. 4, NO.1 /73

SOUTH AND CENTRAL AMERICA

Alvaro Aleman: situation, fields such as admiralty and Maria Eugenia banking are especially important. Panama Alvaro notes that the legal sys­ Arosemena: tems ofpanama and the United States Alvaro Aleman is an U.M. candi­ approach problems very differently Panama date from Panama City, Panama. He In a civil law country, such as received his undergraduate law Imagine a country where law Panama, one moves from general degree from Catholic University in firms frown on rotating young principles to a particular fact situa­ Panama. Panamanian law firms often people in and out for short tion, whereas in a common law work with clients from the United durations. That means no summer country, such as the United States, States, and like many of his col­ associates-and no interviewing, one moves from the particular to the leagues in Panama, Alvaro believed a business suits, or tube letters! general. Panamanian students do not basic knowledge of the American Panama is such a wonderland. learn by the case method, but study legal system would benefit him Law firms there use law students broad legal concepts as embodied in professionally Alvaro learned of the during the school year as pasantes to statutes and restatements. Alvaro has Duke program from his brother handle title searches, court filings , found that law students in the United Jaime, who received his ].D. from and other clerical tasks. Pasantes do States are necessarily more analytical Duke in 1978. He was impressed with not research legal questions, nor are than their Panamanian counterparts. the flexibility of course selection they employed just for summers. Alvaro is enjoying his studies at afforded the U.M. students at Duke. Maria Eugenia Arosemena, better Duke. He has found Duke's small size They are required to take a few stipu­ known as "Maruja;' is from Panama conducive to interaction with the law lated courses such as Legal Writing City, Panama. Her family felt a better faculty and American students. He and Advocacy, but for the most part college education was available here, does miss Panama's tropical climate, are free to choose from upper level so she came to the States in high lovely beaches, and delicious sea­ course offerings, in contrast to U.M. school to learn English. Now she food dishes, such as ceviche. His programs at other American law speaks fluent Spanish, English, and family sends local newspapers each schools. Alvaro would like to remain French because she graduated from week so that he can keep up with in the United States for six to nine Wellesley College with degrees in developments in Panama. Alvaro months after he graduates, to gain Political Science and French. meets other Hispanic students with practical experience by working in Maruja thought about a legal whom he can speak Spanish at par­ an American law firm. career after she saw what her father's ties given by SALSA, Duke's Spanish In Panama, law is a five-year law firm did in its banking, American Latin Students Association. undergraduate course of study. corporate, trademark, and admiralty During the first two years, students practices. Duke Law School was a take "cultural" courses, such as logical choice because her brother­ history, political science, and eco­ in-law had attended here and it was nomics, in addition to law. A large well-recommended at Wellesley number of students work part-time College. while they attend law school. There American friendliness favorably is a very high rate of attrition (at least impressed Maruja upon her arrival. 50%), which Alvaro attributes to the She feels, though, that Panamanians youth and inexperience of the have a stronger sense of family and students. Often seventeen- and roots. Although she misses her eighteen-year-olds choose law before family while she is here, Maruja man­ they have had an opportunity to ages to keep up with her homeland explore other options. culture through Latin friends in the Law firms in Panama are smaller area and Panamanian newspapers than those in the United States. sent from home. She also vacations Twenty lawyers is considered a large there, and worked last summer as an firm. Generally, firms are composed American-style summer associate in of five to ten attorneys. Because of her father's law firm. Panama's geographical and historical Alvaro Aleman Her international perspective has DUKE LAW MAGAZINE / 74

and firms with fewer than five attorneys with a background in the lawyers, are very common. American legal system. The Amer­ May 1986 will be a big month for ican legal system has been very Maruja. She will receive both her influental and Venezuelan attorneys JuriS Doctor diploma and a marriage often use American statutes for certificate. After law school, Maruja models when drafting regulations, may stay in the United States for a few particularly in those fields which years to gain experience, but eventu­ have originated in the United States, ally she will return to Panama to such as securities and industrial work for her father's law firm. property: Antonio believed he would What will she miss the most expand his job opportunities in both about the States? "My friends-that's the private and public sectors by easy!" studying in the United States. Antonio first came to Duke to pursue his LL.M. degree. He had wanted a small school with acces­ Antonio Ramirez: sible professors, a relaxed atmo­ Venezuela sphere, and an excellent reputation. Maria Arosemena Antonio has enjoyed his study here, Antonio Ramirez is a second-year but finds the workload very demand­ J.D. candidate from Caracas, Ven­ ing and wishes he had more time to ezuela. He received his undergrad­ travel, SOCialize, and relax. He helped her legal studies by providing uate law degree from the prestigious decided to pursue his].o. because "more flexibility and broader under­ Catholic University in Caracas. he would like to practice law in a U.S. standing." Maruja has travelled Antonio worked for six years as firm for a few years before he eventu­ throughout Europe, South America, Deputy Attorney in the State AdviSOry ally returns to Venezuela. Antonio and the West Coast of Canada. She Section of the Republic of Venezuela will have to take law courses next has also seen much of the Eastern Attorney General's Office. He under­ summer in order to make up the Seaboard. took the legal representation of the extra credits required for the].D. Comparative Law is Maruja's Republic before all courts, including degree. favorite course at Duke Law School the Supreme Court ofJustice, most Antonio's favorite course has because she finds it "interesting to often in cases involving public law been Comparative Law with Pro­ learn about different legal systems." (constitutional law, administrative fessor Bernstein. In addition to For instance, she explains, Panama is law, labor law, and taxation). He learning about the differing laws of a civil law country. All judges are helped draft opinions adviSing the various countries, such as Germany, appointed. The Supreme Court is various ministries on the legal impli­ France, and Poland, the students divided into three chambers: penal, cations of their policies. He also learn about the cultural contexts of administrative, and civil. The Notary worked as Secretary of the Legal those countries by studying their his­ Public plays a much more important AdviSOry Committee for the Public tory and political systems. Antonio role than in the United States. Administration, a group comprised finds this approach a refreshing All attorneys go to law school, a of the legal counselors of all the departure from that of the traditional five-year program. (There is no ministries and presided over by the law curriculum. opportunity to "read law" and then Attorney General. The Committee take a qualifying examination.) examines all legal government pro­ Studies begin after high school. In jects before their submission to the Panama, law graduates do not have to Council of Ministers. Antonio left his take a separate bar exam; their post in 1981 to work in the Legal diplomas are enough. Since Maruja Affairs Division of the Banco La is a graduate of a foreign law school, Guaira Internacional, where he spe­ however, she would have to pass a cialized in the negotiation of collec­ proficiency test which consists of five tive agreements. oral examinations before a panel of Many Venezuelan attorneys study professors. abroad, primarily in other civil law "It is not that easy to find jobs in countries such as France, Italy, and law, especially nowadays. Many gradu­ Spain. There are many multi-national ates end up in entirely different corporations in Venezuela that need areas;' Maruja says. The biggest Pana­ well-educated attorneys. A number manian law firms have about eigh­ of American law firms have branches teen attorneys. Solo practitioners, in Venezuela and desire bilingual Antonio Ramirez

DUKE lAW MAGAZINE / 76 Alumnus Profile

Richard]. Salem, class of 72, was listed in the December 1984 Esquire Register as one of "The Best of the New Generation." Mr. Salem was selected as one of 272 "Men and Women Under Forty Who Are Changing America," and was one of 42 honorees in the field of polities and law. The honorees were dis­ covered and selected during a two­ year search. The idea of the search, writes Philip Moffitt, the Editor-in­ Chief and President of Esquire, was "to seek out and recognize the best of the new generation, those who exemplify, in their professional lives, tile qualities of courage and inge­ nuity, high standards and strong ideas, that are at tile heart of tile new generation's contribution to American life." Born in North Carolina in 1947, Mr. Salem was blinded by a degenerative disease at age 16. He went on to graduate cum laude from Belmont Abbey College in 1969 and he received his ].D. with distinction Richard Salem from Duke in 1972. After graduation, Mr. Salem entered private practice in Tampa. Four years ago he founded his own general civil practice law firm which deals with corporate School for the Deaf and the Blind. Florida for Carter's 1976 presidential business planning, and administra­ He is an Eagle Scout and is on the bid. In 1979, tile Carter Administra­ tive and civil litigation. regional council of Boy Scouts of tion offered him a high-level position Mr. Salem is an active community America. He is also a member of in tile Department of Education volunteer and has been involved Tampa's Chamber of Commerce and which he declined. extenSively in the political arena. He the Committee of 100, a City Currently, Mr. Salem is focusing serves on the board of directors of economic-development group. his attention on the restoration of the Tampa Lighthouse for the Blind. Mr. Salem was county chairman Ybor City, a century-old, Spanish­ In 1978, Governor Bob Graham of the Democratic party from 1975 to settler section of Tampa. He is work­ appointed him as chairman of the 1977, when he put together one of ing with the Ybor City Chamber of board of trustees of the Florida the most successful campaigns in Commerce. VOL. 4, NO.1 ! 77 SPECIALLY NOTED

Alumni Activities

CLASS OF 1953 Human Relations Council and a for­ bers and is headquanered in San Calvin E. Smith mer director of the Harrisburg Francisco. Calvin E. Smith, '53, was elected Urban Coalition. Wheeler's career has been de­ to a newly created judgeship in the voted to the protection of America's Berks County Coun of Common natural resources. After graduating Pleas in Pennsylvania, on November CLASS OF 1966 from law school, Wheeler worked in 5, 1985. Smith, a Republican, ran Jonathan T Howe private practice before serving in a against Democratic District Attorney Jonathan T. Howe, '66, heads a series of posts in the United States George C. Yatron for the seat. TIle nine-lawyer section handling trade Depanment of the Interior. From race was described by the Reading association practice for the Chicago 1972 to 1977, Wheeler was Deputy Times as one of the hardest-fought firm of]enner & Block Under Howe, Assistant Secretary of the Interior. campaigns in recent memory for a the section has tripled its clients to Wheeler also served as Executive seat on the Berks County bench. more than 200 in the last five years. Vice PreSident of the National Trust Smith is a senior panner in the Howe offers his clients general cor­ for Historic Preservation. The preser­ Reading law firm of Stevens & Lee. porate and tax advice and helps with vation of America's historic and legislative problems. He has also architectural heritage is a similar CLASS OF 1963 handled a number of unusual issue to that of protecting America's ]. Thomas Menaker matters, ranging from helping the wilderness. Wheeler is a committed ]. Thomas Menaker, '63, took Monument Builders of onh Amer­ preservationist. office May 10 as the new chairman ica sue cemeteries to ovenurn In 1980, the American Farmland of the Pennsylvania Bar Association's restrictions on which company's Trust, a leader in farmland conserva­ House of Delegates. The House of headstones a customer had to tion issues, was founded under Delegates is composed of over 300 purchase, to prodding the Reagan Wheeler's guidance. Wheeler served members and is the policy-making administration to cajole Japan into as President and Chief Executive body of the Pennsylvania Bar Associ­ allowing sales of American-made alu­ Officer of that organization until ation, the statewide organization of minum baseball bats. Howe enjoys becoming executive director of the 24,500 lawyers. Menaker will serve his job because it is people-oriented Sierra Club. as chairman for two years. and his work is extraordinarily Menaker is a panner in the Har­ diverse. CLASS OF 1971 risburg law firm of McNees, Wallace Christine M. Durbam Howe characterizes the growth in & Nurick and has been very active The Honorable Christine M. trade groups as benefiCial because in the Pennsylvania Bar Association. Durham, '71, was elected in October they lead to a more informed society He has served as chairman of the 1985 to the Board of Directors of the and government. He has a similar PB& Aeronautics and Space Law American Judicative Society The view of the imponance of profes­ Section, its Labor Relations Section, Society is a national organization sional groups in devising standards and its Long-Range Planning founded in 1913 for improvement of for membership, especially in medi­ Committee. the couns. The Society addresses cine. He does, however, see the Menaker is also a member of the concerns related to the selection and possibility of unfair restriction in national board of the American Civil retention of judges, coun manage­ gaining entry to some fields. Libenies Union and has served as ment and the public's understanding vice president of the Pennsylvania Douglas P Wheeler of the judicial system through affiliate and preSident of the Harris­ Douglas P. Wheeler '66, in July research, educational programs, and burg chapter. In addition, Menaker became the third person to serve as publications. serves on the national board of Fam­ an executive director of the Sierra Justice Durhanl is a justice of the ily Service America and has acted as Club. The Sierra Club, founded in Utah Supreme Coun. She is vice­ president of Fanlily and Children's 1892, is a non-profit organization president of the National Association Service of Harrisburg. He is a for­ devoted to protecting environmental of Women Judges and is a member of mer president of the Harrisburg quality It has grown to 358,000 mem- the American Law Institute. She also DUKE LAW MAGAZINE / 78

serves as a member of the Governor's tatives, Blue was involved in state Task Force on Implementation of Democratic politics, serving as Pre­ Utah Judicial Article Revisions and cinct Chairman and Precinct Com­ the Education Committee of the mittee person. American Bar Association's Appellate Judges' Conferences. CLASS OF 1975 CLASS OF 1972 Gary Lyncb Tom Triplett Gary Lynch, '75, was appointed in Tom Triplett, '72 , is state planning March to be the acting director of the director and top policy adviser to Securities and Exchange Commis­ Minnesota's Governor Rudy Perpich. sion's enforcement division. Lvnch Triplett has worked for Governor joined the SEC in 1976. Lynch 'has Perpich since 1978. Prior to that, he been an associate director of enforce­ served as Senate Counsel for the ment since June 1983. In 1984, Lynch Minnesota Senate. In 1983, Triplett received the SEC's Distinguished Ser­ developed the Minnesota Employ­ vice Award. ment and Economic Development Daniel Blue Program to provide unemployed Minnesotans with jobs. In a January CLASS OF 1979 1985 article in the Minneapolis Star Michael R. Blaha and Tribune, Triplett was described Academy of Trial Lawyers. Blue Michael R. Blaha, '79 was pro­ as one of the most influential figures serves in the orth Carolina House moted in July to assistant general in state government. Triplett has of Representatives and was named counsel of Columbia Pictures Indus­ been credited as one of the chief the Academy's Outstanding Legisla­ tries, Inc. Blaha was an associate at architects of the governor's 1985-87 tor of the Year for 1984-85. Blue was the Los Angeles firm of Lillick, budget. honored for his work in sponsoring McHose & Charles before joining legislation to support the rights of Columbia as an attorney in January CLASS OF 1973 defendants in criminal cases. He has 1982. He was promoted to senior LarIJl J Rosen also co-chaired the legislative study counsel in March 1983. Blaha works Larry Rosen, '73, was elected J. commission on the revision of the in Columbia's West Coast faCility at Albany, New York, City Court Judge Criminal Code of North Carolina. the Burbank StudiOS, Burbank, Cali­ on November 5, 1985. Rosen will Since 1976, Blue has been a man­ fornia. In addition to his position at serve a six-vear term. aging partner in the law firm of Columbia, Blaha is also an adjunct Daniel Blue Thigpen, Blue, Stephens & Fellers in associate professor of law at South­ Daniel Blue, '73, was honored in Durham. Before his election to the western University School of Law in June 1985 by the North Carolina North Carolina House of Represen- Los Angeles.

Obituary

Murray R. Garber, class of '40, Pecora and Duke in 1983. The firm the board of directors of Carnegie died June 3, 1985, in Bradford, Penn­ then became Garber, Pecora and Public Library, Bradford Parking sylvania after practicing law for over Duke. Authority, and d1e Emery Nursing 40 years in Pennsylvania's McKean Mr. Garber was active in various Home. At the time of his death, he County. community and government organ­ chaired the Bradford District Flood Mr. Garber was born in Bradford izations. He was a member of Tem­ Control Authority. in 1916. He was a graduate of Duke ple Bed1 EI and was on the Temple's Mr. Garber was also involved University as well as the Law School. board. During his career, Mr. Garber with the Boys Scouts of America. He He was also a U.S. Army Air Corps had been associated with the was the first McKean County reSident veteran of World War II. Mr. Garber McKean County Planning Commis­ ever to receive their Silver Antelope, practiced law independently for 40 sion; the adviSOry board of the Uni­ the highest award given at regional years before joining the law firm of verSity of Pittsburgh at Bradford; and level. VOL. 4, NO.1 / 79 Urban Property Development Conference 1986

A new group, the Duke Urban the City. Mr. Babcock, who teaches conference attendees. Property Development Council, will land use planning at the Law School, Saturday present a conference entitled "Build­ practiced planning law in Chicago Professor Richard L. Schmalbeck ing and Rebuilding the City" on the for thirty years and is also a distin­ will explore the role of tax policy in afternoon of February 28th and the guished scholar in the field. financing and regulating city renewal. morning of March 1st. The program Mr. Barrington Branch will dis­ Mr. Richard R. Goldberg, vice­ will incl ude: cuss the practical problems of urban president and associate general development. Mr. Branch is execu­ counsel of the Rouse Company, will Friday tive vice-president of Vantage Cor­ present a case study of the renewal of Mr. Richard F Babcock will make poration, a large developer. Boston. a presentation on zoning and its There will be a reception and impact on building and rebuilding dinner that evening for speakers and

Letter

Recently in the Duke Lall' /lJaga­ stood me in good stead throughout zi17e, witl1 deep regret, I read of the the years. passing of a former illustrious pro­ Somehow, in this ratller fluid fessor of mine, nan1el}; Dr. John S. society with empha.')is on haste, one Bradway; whose name brings back so gets the impression that the wheel is many pleasant memories while a stu­ being invented for the first time. dent under his tutelege. Sight, at times, appears to be ob­ Also, it was my distinct pleasure to scured concerning the distinguished serve as a student assistant to Dr. men who served a.<; professors and Bradway which experience I shall who laid the groundwork for the always treasure, for it gave me the noted law school and attendant rare opportunity of associating with nationwide reputation it enjoys this brilliant and extremely hard­ today working scholar whose patience, Dr. Bradway wa.'), without doubt, a organizational ability; creative mind, brilliant diamond among the diadem legal knowledge, good humor, and of distinguished professors who gentlemanly bearing greatly im­ served so well the law school long pressed me. If I may say so, lessons ago. In my mind, at least, his memory learned from this association have has not faded. Sincerely yours,

Hubert K. Arnold ].0.,1939 DUKE LAW MAGAZINE / 80

Agenda Law Alumni Weekend, September 26-27, 1986

Friday, September 26, 1986 (If rain, Portico of Gross Chem.) 2:00 p.m. Registration Desk Opens-Lobby, To be catered by Bullock's Barbecue Law School 1:30 p.m. Football Game 3:00 p.m. Law Alumni Council Meeting­ Room 201, Law School REUNION CLASS PARTIES (1936-37, 1941, 1946, etc.) 7:00 p.m.* Cocktails, Sheraton University Center 5:00 p.m. Cocktails, Lobby, Paul M. Gross (each reunion class will have its own party) Chemical Laboratory 8:00 p.m~ Dinner, Sheraton University Center 6:30 p.m. Dinner on your own (each reunion class will have its own party) Saturday, September 27, 1986 *Should the University decide to reschedule the after­ 9:00 a.m. Coffee-Danish, Hallway, adjacent to noon football game to an evening game, the reunion Moot Courtroom parties will be held earlier (i.e., 4:00 p.m. for cocktails, 9:15 a.m. Professional Program-Moot Courtroom 11:00 a.m. Pig Pickin' BBQ Luncheon, Back Lawn, and 5:00 p.m. for dinner). Law School CHANGE OF ADDRESS Name ______Class of _____ Position, firm ______Officeaddress ______Office phone ______Homeaddress ______Homephone ______

PLACEMENT Anticipated opening for third 0, second 0, and/or first 0 year law students, or experienced attorney O. Date position(s) available ______Employer's name and address ______

Person to contact ______Requirements/comments ______o I would be willing to serve as a resource or contact person in my area for law school students. o I would like to be placed on the mailing list for the Placement Bulletin. Submitted by: Class of _____ ALUMNI NEWS Name ______Classof _____ Address ______Phone ______ews or comments ______Duke Law Magazine NON-PROFIT ORG. Duke University School of Law u.s. POSTAGE Durham, NC 27706 PAID DURHAM,NC Address Correction Requested PERMIT No. 60

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