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NORTHERN KENTUCKY LAW REVIEW Volume 22 Summer 1995 Number 3

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NORTHERN KENTUCKY LAW REVIEW Volume 22 Summer 1995 Number 3 NORTHERN KENTUCKY LAW REVIEW Volume 22 Summer 1995 Number 3 General Law Issue IN MEMORIAM Kenneth R. Simmonds ...................................... Roger D. Billings, Jr 559 SIEBENTHALER LECTURE The Nature of the Judicial Process Revisited ......... David A. Nelson 563 ARTICLES Impediments to Global Patent Law Harmonization .................................................. Anthony D. Sabatelli 579 Squeezing the Juice from Lemon: Toward a Consistent Test for the Establishment Clause ............................................ Carole F Kagan 621 SPECIAL ESSAY American Legal Populism: A Jurisprudential and Historical Narrative, Including Reflections on Critical Legal Studies .................................................... John Batt 651 BOOK REVIEW Learned Hand: Evaluating a Federal Judge ....... James A. Thomson 763 NOTES Minnesota v. Dickerson:What You Feel Is What You Get, With The Magic Words ........ Tracey A. Chriske 811 O'Neill v. Commissioner: Misplaced Trust ........ William P Martin 11 841 Loper v. New York City Police Department: A First Amendment Right To Beg ......... ......... Christie L. Sheppard 853 The Road to Nowhere: TXO Production Corp. v. Alliance Resources .................................... Allison M. Steiner 873 STUDENT ARTICLE The Federal Tax Problems Posed by Durable Powers of Attorney Which are Ambiguous as to the Agent's Authority to Make Gifts ......... Valerie Finn-DeLuca 891 IN MEMORIAM KENNETH R. SIMMONDS by Roger D. Billings, Jr.* "Kenneth Simmonds bridged the cultural and legal worlds of the U.S. and Great Britain. He was a genuine asset to our law school as a visiting professor and afterward he continued to make professional and personal contributions to NKU person- nel. It was a privilege for me to know him. I know the NKU legal community feels a keen sense of loss." Leon Boothe President,Northern Kentucky University On December 19, 1983, several Chase professors gathered around a table to interview Kenneth R. Simmonds for the posi- tion of distinguished visiting professor. Professor Simmonds had been contacted about the job opening, was already in the United States, and had agreed to make himself available for an inter- view. After being exposed to his personality that day, and noting his quick wit and extraordinary curriculum vita, the faculty voted to extend him an invitation. That day a decade of friendship and intellectual inspiration began for all who were present and for others who met him when he returned to assume his duties in January 1985. Al- though he was a man of inestimable British decorum, he knew how to make everyone feel at ease. He laughed easily, shared his contacts with other distinguished scholars, discussed his accom- plishments in a way that educated the listener about his daz- zling world of the intellect, and never offended. He brought his * Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University. A.B., Wabash College; J.D., University of Akron. 559 560 NORTHERN KENTUCKY LAW REVIEW [Vol. 22:3 Welsh wife and life companion, Gloria, to Northern Kentucky, and friends came to regard her as the epitome of the gracious woman. Ken and Gloria seemed to fit into our community effortlessly and, after returning to England, stayed in close contact with their friends at the Chase College of Law. They had a party in London for their Chase friends during the American Bar Associa- tion convention in Summer 1985 at the historic Wig and Pen Club. And they kept on entertaining individuals who visited London right up to the last year of Ken's life. They also made several return visits to Northern Kentucky. Once, when Ken and Gloria were visiting in Northern Kentucky, Dean William Jones and his wife, Gerri, took them to Churchill Downs. It was a balmy afternoon with a cloudless sky, and they had reservations at the beautiful patio dining room late in the afternoon. The seating gave them a wonderful view of the colorfully planted in- field, and they were enjoying an early dinner while watching the races. After a time, Ken turned to Dean Jones and in his impish way said, "My, you Yanks have come a long way in 200 years." Ken Simmonds was not just a distinguished author and pro- fessor. He was one of a kind. His specialization in the law of the sea attracted attention from officials who needed a trusted per- son to help settle border disputes between nations. Such work could not be publicized but had to be done quietly behind the scenes. As a member of the International Arbitral Tribunal, Ken regaled us with descriptions of his work on the Dubai-Sherjah Boundary from 1978-81 when he helped draw a line out into the Persian Gulf, which set the boundary between two tiny countries in a region where every foot could represent thousands of barrels of oil. At the suggestion of the Pope, he was hired to intermedi- ate a border dispute between two South American countries, a dispute which dragged on for years, but at least did not lead to war. While Ken was in residence at Chase, officials of a Far Eastern country pleaded with him to spend one week with them (for a substantial fee) in order to have his opinion about a dis- pute with China and another nation about ownership of certain islands. Ken felt he did not have time and declined. Ken's more public career consisted of being elected twice as dean of the faculty of laws at Queen Mary College. He was in demand as guest professor on a regular basis in Singapore, at the Sorbonne, in Amsterdam and at the University of Texas, to 1995] KENNETH R. SIMMONDS name a few places. It is said that he once declined the presiden- cy of a college at Oxford. His publishing career marked him as a one-of-a-kind scholar. In the early 1970s, he was executive director of the British Insti- tute of International and Comparative Law and was responsible for putting on conferences. It was an ideal position in which to acquire knowledge and contacts. Writing came naturally to him. He pioneered multi-volume treatises and collections of cases on the law of the sea, international commercial arbitration and the Common Market (now the European Union). These were pub- lished by Sweet and Maxwell and Oceana Publications. Ulti- mately, he became the trusted counselor to the founder of Oceana, Philip F. Cohen, and to Edwin S. Newman, executive vice president. How often we heard that Ken had left the Oast Barn in Kent to take up temporary residence at the Savoy Hotel in London because Phil Cohen was coming to town. At Chase Ken observed the English academic tradition of welcoming all comers into his office while the door was open. But when he occasionally closed the door, it was as if he had put up a "Do Not Disturb" sign. Usually, it was because he was writing an article for the Common Market Law Review, of which he was editor. For many of us Ken was one of those people with whom we never could spend enough time. After he left Chase we seemed always to miss him, and, sadly, that state of mind is now perma- nent. SIEBENTHALER LECTURE THE NATURE OF THE JUDICIAL PROCESS REVISITED by David A. Nelson* There's an oft-repeated saying, attributed (correctly, for all I know) to Bismarck, to the effect that there are two things in the world one should never watch being made: sausage and laws. To this short list of things best manufactured without too much public scrutiny, you may, by the time I have finished, wish to add a third item: judicial decisions. Now, I know what the cynics among you are probably think- ing: "Sure, it's better that the public not know, because the way judges really decide cases is to let their law clerks do it. The clerk writes the opinion, the judge either reads it or not, de- pending on whether he is a scholarly sort (or depending on whether she is a scholarly sort, if you want to be trendy and don't mind slandering female judges), and off the opinion goes to the printer." Well, maybe it would be just as well if judges did function this way. We might get better decisions for one thing. For another, the 1994 Siebenthaler Lecture would now be over, and we could enjoy a longer cocktail hour starting a bit earlier than planned. But that, unfortunately, is not to be - for no judge of my ac- quaintance works this way. As far as I know. (I do not mean to suggest that law clerks are potted plants, of course. I, for one, always ask the clerk who has worked on a case for me to let me know how he or she would decide the case - and far more often than not, I wind up agreeing with the clerk. And I think most appellate judges rely on law clerks, as I do, for much of the drafting of a good many opinions. But if the lan- guage of all opinions published these days by federal courts of appeals could be dusted for fingerprints, I think the judges would generally be found to be at least as guilty as the law * United States Circuit Judge for the Sixth Circuit. 563 564 NORTHERN KENTUCKY LAW REVIEW [Vol. 22:3 clerks - and responsibility for how each case is decided is a re- sponsibility that obviously cannot be delegated to anyone.) The title of my remarks tonight, as you know, is 'The Nature of the Judicial Process Revisited." Most of this title, like most of the rest of my current output, has been borrowed from another judge. Not an ordinary judge, in this instance, but one of the true masters of our craft - Benjamin Nathan Cardozo, who in 1921 delivered a series of four lectures at Yale Law School under the title The Nature of the Judicial Process.
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