Winter 2005 the Magazine of the University of Texas School of Ulaw Tlaw

CoverR2 11/3/04 3:38 PM Page 1

WINTER 2005 THE MAGAZINE OF THE UNIVERSITY OF TEXAS SCHOOL OF ULAW TLAW

MANAGINGMANAGING A Tale ofTwo“Mergers” That Yielded Four Big Success Stories PARTNERSPARTNERS Locke Liddell & Sapp LLP managing partner Bryan PLUS Goolsby,’77, and Michelle Parsons Goolsby, ’83, EVP UT Law’s Actual and general counsel, Dean Foods Company Innocence Clinic: Digging Deep to Uncover Injustice

THE UNIVERSITY OF TEXAS LAW SCHOOL FOUNDATION, 727 E. DEAN KEETON STREET, AUSTIN, TEXAS 78705

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CONTENTS WINTER 2005 TABLE OF

John and Laura Beckworth, two longtime UT Law supporters, at Houston’s Hobby Center for the Performing Arts, which Laura helped to build.

FRONT OF THE BOOK FEATURES BACK OF THE BOOK 2 VOIR DIRE TOWNES HALL NOTES 43 MANAGING PARTNERS 4 IN CAMERA NOTEWORTHY 44 10 PRESIDENT’S MESSAGE New faculty members, new books, and 32 UT Law’s new fellows at the American 11 DEAN POWERS Two alumni couples discuss the Academy of Arts and Sciences Educating Leaders by Bill Powers transition from lawyerly independence to management. CLASS NOTES 50 13 CALENDAR by Allegra J. Young 14 AROUND THE IN MEMORIAM 62 LAW SCHOOL ACTUAL INNOCENCE UT Law faculty members visit Brazil, CLOSING ARGUMENT 64 new societies, farewell to Corwin Johnson “Listen to the Book” 38 by Michael Widener 18 ALUMNI FOCUS UT Law faculty launch a new type of A lawyer reports the news. clinic designed to work with changes in by John Schwartz, ’84 Texas’ progressive actual innocence laws. by Laura Castro Trognitz, ’97 20 FACULTY FOCUS The scholarly pursuits of Wendy Wagner, Robert Peroni, Susan R. Klein, William Forbath, John Dzienkowski, Cover photograph by Wyatt McSpadden UTLAW Bernard Black, and Mitchell Berman Photograph this page by Rocky Kneten VOLUME 3 • ISSUE 2 02x03_MastheadLetters 11/1/04 6:33 PM Page 2

DIRE

I am a graduate of the June 1931 UT Law Class and have VOIR UTLAW wondered if you have any records showing approximately UT SCHOOL OF LAW

how many of us are still alive. ALLEN C. STEERE, ’31 Dean BILL POWERS, JR.

Asst. Dean for Development and Alumni Relations the law department of the Lincoln NANCY BRAZZIL National Life Insurance Company Director, Law Alumni Association here in Fort Wayne and retired in TOM HENNINGER, ’92 1973 as a senior officer and member Director of External Relations FRAN CHAPMAN of the board of directors. My wife, Lomarae, died in Janu- UT Law School Alumni Association President TERRY O. TOTTENHAM, ’70 LETTERS ary 2003. We had been married 65 UT Law School Alumni Association President-elect years. She was a Texas girl. I turned THE CLASS OF ’31 DEL WILLIAMS, ’85 96 in August. AM A GRADUATE OF THE JUNE 1931 I have very much enjoyed read- MAGAZINE UT Law Class and have wondered ing UTLAW and have many pleasant I Communications Director if you have any records showing ap- memories of my days at the Univer- ALLEGRA J. YOUNG proximately how many of us are still sity. I was a DKE and the drum major Communications Strategy Manager alive. I attended the 50th and 60th of the Longhorn Band, 1926–31. LAURA CASTRO TROGNITZ, ’97 reunions of the class in Houston Allen C. Steere, ’31 Communications Coordinator and the 59th reunion in Dallas. But JODI BART Fort Wayne, Indiana we seem to have gone silent since Class Notes and In Memoriam Editor that time. SUZETTE MOLINA After practicing three years in my Editor’s note: This fall we counted 79 Editorial Assistance hometown of Fort Worth, I entered Class of 1931 members in our records. MICHAEL WIDENER MICHAEL HORN

Copy Editor JAN MCINROY

Creative Direction, Design, and Production NANCY MCMILLEN NANCY MCMILLEN DESIGN

WE WELCOME YOUR LETTERS AT:

UTLAW Letters UTLAW Alumni Magazine 727 E. Dean Keeton Street Austin, Texas 78705 E-mail: [email protected]

TO ADVERTISE:

BRITTANY ARNOLD ACCOUNT EXECUTIVE

TEXAS MONTHLY CUSTOM PUBLISHING Office phone: (512) 320-6934 Mobile phone: (512) 964-3308 Fax: (512) 476-9007 E-mail: [email protected]

TO CHANGE YOUR CONTACT INFORMATION:

Telephone: (512) 232-1118 E-mail: [email protected] Online: http://www.utexas.edu/law/ depts/alumni/form.html

UTLAW Magazine is published two times a year by The University of Texas Law School Foundation, a nonprofit corporation, 727 E. Dean Keeton St., Austin, Texas 78705.

2 UTLAW Winter 2005 02x03_MastheadLetters 11/1/04 6:33 PM Page 3

celebrate your orangeness

Tim Shinabarger is recognized as one of our greatest contemporary sculptors. And “On The Move” is the finest example of a Texas longhorn we’ve seen. The fact that it is small makes it all the better.

On The Move by Tim Shinabarger Bronze 51/2"h x 7"w x 3"d

15 Highland Park Village Dallas, Texas 75205 214-521-7880 800-521-2403 www.collectorscovey.com

WORKSHOPS WORKING PAPER SERIES The center hosts a cutting-edge The center collects and disseminates workshop series on innovation, with guests a working paper series, which advertises this fall from the Harvard Business the wide range of sophisticated School, the economics departments at analytical work that the center’s faculty MIT and Berkeley, and the law schools at are doing at the intersection of law, Michigan and Chicago. economics, and business.

TRANSACTIONAL PRACTICE FOR MORE INFORMATION ABOUT CLBE, CONTACT: Professor Ronald Mann, Codirector The center has commenced a major initia- PHONE: (512) 232-1301 E-MAIL: [email protected] CENTER WEB SITE: http://www.utexas.edu/law/ tive to make Texas a leader in educating academics/centers/clbe/index.php students who want to be transactional lawyers. The program involves the development of new transactional courses (like “Software Licensing”and “Venture Capital” Deals), as well as a series of lunch panels on important topics about the distinct challenges of the business of law practice. A T T HE UT SCHOOL OF LAW

Winter 2005 UTLAW 3 04x05_InCameraKBH 11/1/04 2:12 PM Page 4

SENATOR KAY BAILEY HUTCHISON

This year the Law School successfully raised more than $1.4 million to endow the Kay Bailey Hutchison Chair in Latin American Law. The proceeds from the endowment will help fund a professorship and scholarly research that focuses on that region of the world. “This chair is a fitting and lasting tribute to a senator who has devoted considerable effort to strengthening our nation’s and Texas’ ties to a region of commercial, social, and political importance,” said David J. Beck, president of the Law School Foundation. “I’d like to thank the many donors who helped make our fundraising effort such a great success.”

P HOTOGRAPH BY J AMES K EGLEY

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Winter 2005 UTLAW 5 06x09_InCamera 11/1/04 2:33 PM Page 6

LEGAL TIMES

This year the New York Times Company hired another UT Law graduate, making UT Law the most represented school on its corporate staff. From left, Johanne Picard, ’96, who works on tax matters, Alison Zoellner, ’90, senior counsel, and Diane Brayton, ’96, who serves as counsel. UT Law’s John Schwartz, ’84, also works for the Times, as a reporter (see page 18).

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Winter 2005 UTLAW 7 COV2_CSOMentor 4/14/04 3:52 PM Page 1

Make a gift of your time. Become aUTLaw Mentor.

Becoming a MENTOR is an LEGAL excellent way to make a PUBLIC INTEREST contribution to the Law School. Whether you are in-house, JUDICIAL at a firm, at a court, in INTERNATIONAL government or public interest, or pursuing an alternative NON-PRACTICING career, UT Law students can benefit from your knowledge CAREER S ERVICES and guidance. Please consider OFFICE

making a gift of your time Mitchell Kam, Associate Director The University of Texas School of Law and experience to students so Career Services Office 727 East Dean Keeton Street they may continue UT’s Austin, Texas 78705 v (512) 232-1150 Fax (512) 471-6790 legacy of excellence. www.utexas.edu/law/career 06x09_InCamera 11/1/04 2:34 PM Page 9 IN CAMERA

HAIL TO THE CHIEF

The Honorable Wallace B. Jefferson, ’88, was named chief justice of the Texas Supreme Court this fall. The UT Law grad is the first African American to serve as chief justice. “Justice Jefferson is an outstanding judge and will be an excellent chief justice,” said UT Law dean Bill Powers. His appointment is subject to confirmation by the Texas Senate.

PHOTOGRAPH BY WYATT MCSPADDEN

Winter 2005 UTLAW 9 10x11_PresDean 11/1/04 2:38 PM Page 10

President’s Message Supporting a worthy mission.

EAR FELLOW UT LAW ALUMNI: I have the great port. Let’s do our part, then—just as alumni of our Law honor and privilege of serving as president of School have done now for more than one hundred years. the UT Law Alumni Association for 2004–05, If you have questions about the Law Alumni Associa- and I am very excited about the coming year. tion, the Annual Fund, or the Law School’s other develop- On these pages, you will read about the ment programs, please write to me at the Law Alumni Asso- accomplishments of our alumni, our faculty, ciation or call one of the association’s staff members. Con- and our students. You will also learn of upcom- tact information for the UT Law Alumni Association can ing events of interest to all of us as alumni. be found on page 2 of the magazine. The work being done at our alma mater is Again, I am honored to serve the Alumni Association truly remarkable and is cause for great pride this year as its president, and I hope I have the opportu- among all members of the UT Law School nity to visit with many of you this year. Together, we can community. I hope it also inspires you to sup- make great things happen. port the Law School—our law school. DOf course, there are many ways alumni can, and do, Sincerely, support the Law School. Our gifts of time and experience as adjunct professors, volunteer recruiters, mentors and advisors to students, peer fundraising coordinators at our respective law firms or places of business, and/or our attendance at Law School events are important and valu- Terry Tottenham able to building a great institution. President Likewise, our friendships—forged during our years together as classmates—and our professional relationships with each other bring strength to our Law School and its reputation as one of the nation’s premier centers of legal scholarship and education. To be known as a law school that views and treats all its various constituencies as part of a single, extended community is also part of what it takes to be known as a great law school. Finally, and no less importantly, is the financial support we give to UT Law School. You have received letters from Dean Powers, from me, and from others associated with the Law School, asking you to contribute to the Annual Fund. There are many reasons to give to the Law School. Some of those reasons you’ve read about in the letters you received. By reading this issue of UTLAW, you may well learn of other reasons to give. For me, and perhaps for many of you, the most compelling reason of all is the need of a worthy enterprise. As alumni, we know the mission of UT Law School is worthy. And we know that UT Law School needs our sup-

Terry O. Tottenham,’70, is a senior partner with Fulbright & Jaworski and currently serves as partner-in-charge of the firm’s Austin office. He earned his B.S. in Pharmacy with High Honors from UT-Austin and his LL.M. in law, psychiatry, and criminology from the George Washington University National Law Center.

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POWERS

DEAN Educating Leaders Lawyers are the day-to-day embodiment of the rule of law.

E OFTEN SAY THAT LAW SCHOOL TEACHES tant, they rise to become leaders in their communities. students to “think like lawyers.” In fact, This is why our curriculum, in addition to including that’s true. We teach analytical skills and analytical skills and bodies of knowledge, also focuses on bodies of knowledge that are essential for legal history, social policy, legal philosophy, economics, lawyers. But we do more than that. We and comparative law. It is why in our clinics students learn incubate our state’s and nation’s leaders. to grapple with what it means to be responsible for the fate In 2003 UT president Larry Faulkner of a real live client. It is why our public interest program convened the Commission of 125. Like the instills in all students the value of striving to ensure that Committee of 75 and the Centennial Com- our legal system serves all people. mission before it, the Commission of 125 Classrooms are not the only place where we foster lead- was composed of civic leaders and was ership. In a multitude of extracurricular activities and or- charged with the task of envisioning the ganizations, students learn leadership. This fall, we in- University’s future. (In 2001–02 the Law School had a simi- stituted a new “society” program, in which the entering Wlar Long-Range Planning Committee. I am proud to say we class is divided into eight societies (and further into sixteen have implemented all of its recommendations, including “mentor groups”). Each society is led by a faculty mem- our new “society” program, which I discuss below.) I had the ber, an upper-level student advisor, and two upper-level privilege of being the lead liaison for the Commission of student mentors. The societies will involve students in 125’s Committee on Graduate and Professional Education, activities in which they learn about our profession and its and I was proud to see how many of the commission’s mem- many paths. And the societies will involve students in pub- bers are lawyers. But that’s true in almost any civic enterprise: lic-service projects. By locating these and other social lawyers—especially UT lawyers—are community leaders. activities in the societies, we have enabled the TQs in our Lawyers are the day-to-day embodiment of the rule of law. writing program to focus more heavily on research and We need to remember that when lawyers are attacked in the writing skills. Along with our hiring an additional writing media. Remember, when Shakespeare penned the lines instructor, this has strengthened our writing program. “First thing we do, let’s kill all the lawyers,” he put them in So with our curriculum, our new societies, our clinics, the mouth of Dick the Butcher, who wanted to overthrow and our student organizations we try to foster leadership as the regime. Lawyers, and the law, are our guardians of lib- well as technical skill. We try to prepare students for their erty. But even when they are not serving as lawyers per se, first jobs, and for a lifetime as leaders in our communities. UT lawyers serve as our local, state, and national leaders. This issue of UTLAW focuses on four alumni who are For the University as a whole, the Commission of 125 models of what we strive to foster. Four people—two cou- focused on UT as an incubator for leadership. In its final ples—each of whom has manifested leadership, not just report in October, it concluded that educating leaders re- in our profession but in our communities as well. They quires more than merely providing students with the entry- are Michelle and Bryan Goolsby and Laura and John Beck- level skills for first jobs in narrow fields. It also requires worth. As their stories show, they are incredibly accom- having students grapple with the fundamental human and plished, dedicated, and talented. I hope you will enjoy intellectual problems presented by history, literature, sci- their individual stories. They are representative of many ence, mathematics, and philosophy. It requires a strong alumni whose stories I wish we had the space to tell. foundation in analytical skills, and in oral and written com- I often say how grateful I and our entire faculty are for munication. It requires a firm understanding of rich cultur- the support you give us. It is essential to our success. We are al heritages in our pluralistic state, nation, and world. also enormously proud of you. Proud of your professional The Law School is no different. I am proud to say that success, and even more proud of your legacy of service. employers report that our graduates are extremely well prepared for entry-level jobs in law firms, government, Sincerely, and nonprofit organizations. But I am equally proud to say that this is not where our graduates stop. They rise to become leaders in their profession. They rise to become leaders in other enterprises. And, most impor- Bill Powers, Dean

Winter 2005 UTLAW 11 13_Calendar 11/1/04 4:26 PM Page 12

ARE YOU A UT LAW GRAD NOT PRACTICING LAW?

TheLaw School’s Non-Practicing Alumni Advisory Council (NPAAC) wants to hearfrom you!

On JANUARY 28, 2005, Dean Powers and Stan McLelland If you are interested or know someone who is interested invite the non-practicing advisory council to the Law in serving on the council, please send the name, address, School for its annual meeting. The advisory council focus- phone number, fax number, and E-mail address to: es on a variety of projects, including ways to involve Fran Chapman non-practicing alumni in the life of the Law School and to Director of External Relations E-mail: The University of Texas School of Law [email protected] provide mentoring services to students and alumni who are 727 E. Dean Keeton Street Phone: (512) 232-9394 considering alternatives to the traditional practice of law. Austin, Texas 78705-3224 Fax: (512) 471-6987 For more information, visit our Web site: http://www.utexas.edu/law/depts/alumni/npaac/index.html

ComeCome homehome to…to…

The University of Texas School of Law ReunionReunion20052005 Saturday, April 16

For more information, visit our web page at www.utexas.edu/law or phone (512) 232-1118.

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SCHOOL OFLAW CALENDAR WINTER 2005

APRIL 16, 2005 232-1280. The Web site is found at attend this popular networking event. www.utexas.edu/law/journals/tlr/. Student résumé directories will be SAVE THE DATE: REUNION! distributed at the reception, and FEBRUARY 11 practitioners do not need to be hir- JANUARY 28 The 14th annual Public Service ing to attend. For more information, The Alumni Association will hold its Career Day, the largest public inter- visit www.utexas.edu/law/career or annual Non-Practicing Alumni Advi- est job fair for law students in Texas, contact Mitch Kam at mkam@mail. sory Council meeting. For more infor- will be held at the Law School this law.utexas.edu or (512) 232-1162. mation about the council, please con- spring. Law students from through- tact Fran Chapman, director of ex- out the state and employers from THIS SPRING ternal relations, at fchapman@mail. throughout the nation will be in Each year Texas Law Fellowships law.utexas.edu or (512) 232-9394. attendance. For more information, (TLF) grants the Excellence in Pub- visit www.utexas.edu/law/career or lic Interest Awards to two Texas FEBRUARY contact Tina Fernandez in the Career attorneys who have demonstrated Professor Karen Engle and the Cen- Services Office at tfernandez@ mail. their commitment to serving the ter for Human Rights at UT Law will law.utexas.edu or (512) 232-1159. public. TLF invites all members present “Working Borders: Linking of the Texas legal community to Contemporary Debates Over In- MARCH join us in honoring the achieve- sourcing and Outsourcing of Capital The Career Services Office will host its ments of this year’s recipients. Also, and Labor.” For more information, fifth annual Small- and Mid-Size- the week before and the week contact Professor Engle at kengle@ Firm Reception. This event offers after spring break, TLF will hold mail.law.utexas.edu. firms and solo practitioners the oppor- its annual TLF Pledge Drive to tunity to meet outstanding UT Law fund summer 2005 fellowships for Spring On-Campus Interviews (OCI) students in a casual setting. Nearly students employed in the public will be held at the Law School in the three hundred UT Law students and interest field. For more infor- Career Services Office Interview Suite. recent graduates are expected to mation, contact TLF at tlf@mail.

For more information, TEXAS LAW REVIEW HOSTS “WATER LAW ISSUES IN THE DESERT SOUTH- law.utexas.edu or at visit www.utexas.edu/ WEST.” PHOTO OF BIG BEND’S HOT SPRINGS CANYON BY LAURENCE PARENT. www.utexas.edu/ law/career or contact law/orgs/tlf/. Andrea Schlafer in the Career Services To review a complete Office at aschlafer@ schedule of the Law mail.law.utexas.edu School’s CLE confer- or (512) 232-7110. ences, go online to www.utcle.org or call FEBRUARY the CLE office at (512) 4-5 475-6700. For infor- The Texas Law Review mation on training will host its annual sessions offered by symposium, this year the Center for Public titled “Water Law Policy Dispute Reso- Issues in the Desert lution, contact Natalie Southwest.” For more Gray at (512) 471- information, contact 3507 or go online to Amanda Borichevsky www.utexas.edu/law/ at amandalb@mail. academics/centers/ utexas.edu or (512) cppdr/training.

Winter 2005 UTLAW 13 14x17_ATLS 11/1/04 4:43 PM Page 14

WINTER 2005 AROUNDTHE

American and the Brazilian constitutions, and human rights and the American Constitution. The panel “The Consti- tution and the Economic Order” included presenta- tions by Brazilian professors Antonio Benjamin, special advisor for judicial affairs to the president of the Bra- zilian Senate, and Claudia Lima Marques, of the Fed- eral University of Rio Grande

Visiting law professor Antonio Ben- jamin welcomes guests to Rio De Janeiro, left. Below (l. to r.): Dean Powers, Benjamin, and Professor rights in the constitution, Larry Sager share a panel discus- the impact of the constitu- sion at a conference in Brasília. Viva Brazil! tion on private law, the Bottom: Law faculty visit the Su- N AUGUST, UT LAW DEAN the Brazilian courts. This is protection of free speech, premo Tribunal Federal in Bra- I Bill Powers and several part of our focus on Latin the constitution and af- sília with U.S. Embassy members faculty members traveled to American law. It is tremen- firmative action, philoso- and Brazilian Supreme Court chief Brazil to discuss North Amer- dously helpful for opening phical foundations of the justice Nelson Jobim (center). ican law with attorneys and up opportunities for our judges in Rio de Janeiro, students,” said Powers. He Porto Alegre, Goiânia, and noted that four UT Law stu- Brasília. dents had internships in UT Law faculty have been Brazil this past summer. going to Brazil annually to A highlight of this year’s teach about American law trip was the first compara- as part of an ongoing Brazil- tive constitutional law dia- U.S. Legal Education Ex- logue at the Brazilian Su- change Program. In addi- preme Court in Brasília. UT tion to Powers, this year the faculty exchanged ideas group included Jane Cohen, with members of the Bra- Karen Engle, William For- zilian Supreme Court, the bath, David Rabban, Larry attorney general of Brazil, Sager, Jane Stapleton, and and the dean of the Na- Jordan Steiker. tional University of Brasília. “For the past eight years Topics discussed includ- we’ve had a very productive ed the contemporary mean- relationship with the Federal ing of the constitution in University of Rio Grande do the United States and Bra- Sul School of Law and with zil, individual and social

14 UTLAW Winter 2005 14x17_ATLS 11/1/04 4:43 PM Page 15 LAW SCHOOL 2005 WINTER

do Sul. Benjamin is a regu- lar visiting professor at UT Montoya,’95,Tapped to Lead Law who teaches comparative environment law and biodiversity law. Marques School’s Career Services Office has also visited UT Law. HEN ASSISTANT DEAN for six years, most recently Rising Star for 2004. for career services serving as a partner in the Kathy Richardson,’95, Commercial Litigation and “I look forward to working with Wstepped into her new Corporate Reorganizations/ the students, faculty, and staff of role as a member of a pri- Restructuring sections. Texas this great institution,” assistant vate legal talent recruiting Monthly named him a Texas dean David A. Montoya, ’95, said. firm, Dean Powers hired her classmate David A. Mon- toya, ’95, to lead one of the nation’s largest legal career service office operations. “Dean Richardson did a wonderful job leading our Career Services Office. We will miss her. We are extremely fortunate to have David Montoya join us to carry on our tradition of career services. He has been an outstanding lawyer, and he will be a marvelous dean AARON FORBATH (2) FORBATH AARON of career services. We are lucky to have him.” Montoya, a native of Santa Fe, New Mexico, earned a bachelor’s Above: Some UT Law faculty hik- degree in business ing through Chapada dos Veadeir- administration from os, a national park near Brasília. the University of Notre Dame in 1985, where he was designated a Notre Dame Scholar. Before attending law school, he was a CPA and worked for one of the largest international CPA firms and a Fortune 200 company. After graduating from the Law School in 1995, he

worked for Jackson Walker WYATT MCSPADDEN 14x17_ATLS 11/1/04 4:43 PM Page 16

UT Law’s AROUNDCenter for THE LAW Human Rights

WINTER 2005 SCHOOL HIS YEAR THE LAW SCHOOL announced a major do-

nation from the Ber- CORBIS Tnard and Audre Rapo- UT LAW #1 port Foundation of $100,000 FOR per year for five years to Karen Engle will direct the Center al Worker Rights Clinic to fund the Center for Human for Human Rights. The center's represent low-income immi- HISPANICS Rights (CHR). Transnational Worker Rights Cli- grant workers in the Austin CHR creates a meeting nic represents migrant workers. area. The clinic allows stu- The recognized influ- ground for interdiscipli- dents to improve their under- ence of UT Law’s 1,300- nary analysis of contempo- standing of workers’ rights plus Hispanic alumni rary human rights issues and will help immigrant contributed to the Law and supports human rights workers recover unpaid School’s top placement activism. It supports student wages for work performed. in this fall’s Hispanic service and learning oppor- Professor Sarah Cleveland Business magazine top tunities by awarding three directs the clinic. law schools survey. It is scholarships, identifying CHR’s kickoff event will

the fourth consecutive summer internship opportu- MCSPADDEN WYATT be a February conference, time the Law School has nities, and hosting support “Working Borders: Linking claimed the top spot on workshops and conferences. Contemporary Debates Over the survey. In addition, the center Insourcing and Outsourcing establishes the Transnation- of Capital and Labor.”

Legislature to enact these measures in 1973), and Maxwell In Brief donated materials including drafts of legislation and tran- A WIN FOR UT'S CAPITAL PUNISHMENT CLINIC scripts of hearings, correspondence, news clippings, talking A 6–3 ruling by the U.S. Supreme Court in a case involv- points, vote counts, and other papers that document the ing the Law School’s Capital Punishment Clinic could political maneuvering and battles that took place during the lead to the reversal of dozens of death sentences adoption and amending of these laws beginning in 1973 and imposed in Texas before 1991. In Tennard v. Dretke, the continuing through the 1990s. Court ruled that a death-sentenced inmate could continue with his claim that his jury was unable to give effect UT LAW COMPETES IN to evidence of his 67 IQ as a mitigating factor in the DANSKIN TRIATHLON penalty phase of a capital trial. UT Law professors Rob Dean Alexandra W. Owen and Jordan Steiker and law students Kimberly Albright, ’80, led a group Carter, Heather Fraley, Haverly Rauen, Leslie Conant of UT Law students and Thorne, Amanda Tyler, and Mitria Wilson took leading staff members who all roles in this case. (For related story, see UTLAW, Spring finished the Danskin 2004, page 49.) Triathlon, held June 13, 2004. Clockwise from ALUMNI, FACULTY WORK TO DONATE INSURANCE top left: Class of 2004 LAW PAPERS TO STATE OF TEXAS members Jodie Slater, Joe K. Longley, ’69, and adjunct professor Philip K. Maxwell, Albright, Lauren Held, ’69, have donated 12 linear feet of records regarding the Martha Newton, and Amy drafting of Texas’ Deceptive Trade Practices Act and Pharr Hefley. Not pic- private remedies amendments to the Texas Insurance Code tured: Law School staff to the Texas Legislative Reference Library. Longley, the members Sally Emrick principal drafter of H.B. 417 (the vehicle used by the Texas and Susan Schultz.

16 UTLAW Winter 2005 14x17_ATLS 11/1/04 4:43 PM Page 17 ITR2005 WINTER need to increase access to are Richard Warren Mithoff, justice and the rewards of ’71, a former law clerk to Justice Center Launch fulfilling their ethical obli- Judge Justice, and William establish the William Wayne gation to engage in pro bono, O. Whitehurst, Jr., ’70, a for- Justice Fund for Public Ser- public service, and public mer president of the State vice in honor ofJudge Justice, interest law as part of their Bar of Texas. ’42, and his more than fifty professional lives. (For related story, see UTLAW, years’ commitment to public Center director Eden Har- Summer 2003, page 48.)

WYATT MCSPADDEN WYATT service and equal justice. rington said the $1 million is The Justice Fund en- an initial endowment and dows the work of the Law the Law School is continuing School’s Center for Public to seek support through the Interest Law, now called the Justice Fund for operating HIS YEAR A TEAM OF ALUM- William Wayne Justice Cen- programs and a larger en- Eden Harrington (left) will direct Tni, faculty, and admin- ter for Public Interest Law. dowment for the Justice Cen- the new Justice Center; Profes- istrators at the Law School The center will help edu- ter. Steering committee co- sor Lynn Blais will serve as one helped to raise $1 million to cate law students about the chairs for the Justice Fund of the fund’s faculty liaisons.

REMEMBERING CORWIN W. JOHNSON 1917–2004

BRADFORD CADENA GREEN HARGRAVE Corwin W. Johnson, a Law School professor for almost six decades and a national expert on property law and New Society water law, died this past summer on July 29 after suffering a stroke. He was 86 years old. On the day of his System for 1Ls memorial service, President Faulkner ordered the UT Law launched a new society system for first-year stu- University's flags to be flown at half-mast. dents this year. Societies, or groups of fifty to sixty students, “Corwin was a pillar of the Law School community will help students foster a stronger sense of community, for over half a century. He was further improve student access to faculty members, and a great teacher and scholar. serve as a base for students’ But even more than that, pro bono, athletic, and social he was a great friend. activities. Professor David S. We will all miss him,” Sokolow (left) and Allyson said Dean Bill Powers. WYATT MCSPADDEN WYATT Childs, ’95, will coordinate ForatributetoJohnson society activities. writtenbyJamesA.Baker The Law School societies were named for: III,’57,see UTLAW, Winter 2004, pages 60–61. GLORIA K. BRADFORD, ’54, our first African American female graduate CARLOS CADENA, ’40, a respected judge and a civil rights crusader LEON GREEN, ’15, one of the most important tort scholars HELEN HARGRAVE, UT Law's longtime librarian and the school's first female faculty member GUS HODGES, a highly popular professor CHARLES MCCORMICK, a former dean ALICE SHEFFIELD, ’18, one of UT Law's first female graduates JOHN SUTTON, ’41, a former dean known for his collegiality

HODGES MCCORMICK SHEFFIELD SUTTON 18x19_AlumFocus 11/1/04 2:47 PM Page 18

FOCUS

ALUMNI A LAWYER REPORTS John THE NEWS Did I throw away a perfectly Schwartz good law degree? Not at all.

’M ONE THOSE UT LAW GRADUATES who doesn’t practice law. Never did, except for a couple of clinics II took in school, getting a divorce for a nice woman whose husband beat her and defending a kid who ended up going up the juvenile river. I figured that quitting while I was bat- ting .500 was pretty good. I had nothing against practicing law, or against lawyers. My dad and two of my brothers are members of the profession, and I enjoyed learning the law. But when it came time to decide on a career, I felt the pull of journalism more compellingly. I started working for the Daily Texan and UTmost, the campus magazine, after getting into law school, and found myself freelancing for Texas Monthly, the Texas Observer, Newsweek, and the New York Times while struggling through classes. The avuncular associate dean of students, T. J. Gibson III, was indulgent; he said that having a law student so involved with the main campus was good for the school, and he let me rack up quite a few incompletes. By the time I graduated (working off the incompletes by churning out some 200 pages’ worth of independent-study papers), I knew that I’d have to at least give writing a

“I wouldn’t have passed up the experience of attending UT Law for anything.”

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try before committing myself to a I can’t say that the people I got in career in law. My wife, who was even touch with were especially helpful— more indulgent than T.J., agreed to EXTRA! EXTRA! they were, after all, loyal employees give me five years to try to get a real Everyone has favorites—these are mine. and executives. But the experience of job in journalism, say, with a health Best books about newspapering: covering that disaster helped put plan. A year later, in mid-1985, I got ALEX JONES AND SUSAN TIFFT, The things in perspective. I might not be a job at Newsweek—and we never Trust. A sweeping history of the New able to afford much of a house on a looked back. Since then, I’ve worked York Times. reporter’s salary, and I don’t know at the Washington Post and at the New ARTHUR GELB, City Room. A longtime how we’ll pay for our kids’ college York Times. I know, I know. I just can’t Times editor tells of everything from education. But at least I’m not on the keep a job. the wild days during WWII, when re- wrong end of a shareholder suit or So did I throw away a perfectly porter Meyer Berger would celebrate wondering what to pack for an ex- good law degree? Not at all. The finishing a big story by running around tended stay in a federal lockup. things I learned at UT Law, and the the city room atop the reporters’ desks, Besides, journalism has its rogues, ability to learn and understand the to the Jayson Blair scandal. too. When the Jayson Blair fiasco law, are an important part of many KATHARINE GRAHAM, Personal His- erupted at the Times, one of my good stories that I write. One of the most tory. The owner of the Washington Post friends from law school who had important ongoing technology sto- tells her story, and with it the story of been at Enron called out of the blue. ries I have covered at the New York a great paper. “Media feeding frenzy,” he said, strik- Times has been the fight over music DAN BARRY, Pull Me Up: A Memoir. ing a tone somewhere between rue- file trading, with its complexities of One reporter’s story, richly told, with ful and gleeful. “It’s not fun, is it?” copyright. You don’t have to be a heart. I had to admit that he was right. It lawyer to get up to speed on those was awful, gut-churning stuff. The issues, but it definitely helped. And reporting trades. The editor who work of a scam artist can be ruinous, when I covered the fight over tobac- hired me to work at Newsweek in 1985, whether he is at a newspaper or an co regulation for the Washington Post Jerrold K. Footlick, was an attorney energy company. These scandals in the 1990s, there was tort litiga- and had been the writer of the maga- erode the public trust, and trust is tion, regulatory law, legislation, and zine’s respected Justice section for the only real asset in business or in more, with a bonus of Chancery law many years. He said one of the rea- journalism. Nothing else works with- for the State of Mississippi’s suit. I sons he hired me was the fact that I out it, and it’s far quicker and easier can talk Chevron deference with the had gotten the law degree and passed to destroy than to build. best of them. the bar—signs of stick-to-itiveness, Of course, Jayson didn’t cause any- Well, that’s not quite right. I can he thought. At the Times, other re- body to lose his life’s savings, either. bluff my way through a discussion of porter-lawyer colleagues include Bar- Even though I’ve traded the pro- regulatory deference under the Chev- naby Feder and Adam Liptak, who fession of law for the trade of journal- ron line of cases, so long as I don’t actually served on the paper’s legal ism, I wouldn’t have passed up the have to actually go into anything in staff before making the jump to typ- experience of attending UT Law for depth. For a journalist, that passes for ing for a living. anything. It gave me a chance to get expertise. Of course, law school is not just to know iconic figures like Page As I worked on these stories, about learning black-letter stuff. Keeton, Bernie Ward, and Charles lawyers began many conversations There are connections, too. That part Alan Wright, and to learn from gifted talking to me as if I were an idiot has come in handy from time to time. teachers like Mark Yudof, Michael child who happened to own a suit. When I was sent to cover the collapse Sharlot, Tom McGarity, and Barbara They’d say things like, “You might of Enron, I was pleased to find that Aldave. (And many, many more whom not understand the legal background UT Law dean William Powers had I hope I have not insulted through here.” It has always been great to be conducted the critical early study of inadvertent omission.) Also, it gave able to respond, “Well, I only went to Enron’s business, giving me a famil- me that thing that all reporters need: a state law school, but I’ll try to keep iar person to talk with about the a way out. I’ve always said that if this up if you use small words.” It seems to report and its implications. I also dis- whole journalism thing doesn’t work open doors every time, telling them, covered that several people I knew out, I can just go back to Texas and in some small way, “I’m in the club.” from law school had ended up in do divorces. (It was almost as effective an ice- positions of authority at one time or breaker as asking tobacco lawyers another at Enron and its affiliates. It John Schwartz,’84, writes about science and lobbyists during breaks in trials should not have been any surprise, of and technology for the New York Times. or congressional testimony if I could course, since UT Law grads are real His father, A.R.“Babe” Schwartz,’49, bum a cigarette.) heat seekers, and find interesting, served in the Texas Senate between 1961 I’m far from the only lawyer in the challenging places to be. and 1981.

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REVERSING INCENTIVES FACULTY Wendy FOR IGNORANCE Current laws provide the wrong Wagner incentives for environmental protection.

ESPITE THE ENORMOUS though the country has devoted eral programs depends on this infor- growth in environmental hundreds of pages of laws to regulat- mation. We even lack the knowledge law and regulation since ing activities that threaten the envi- to talk about, much less test for, a Dthe 1970s, much of the ronment. We do not know when we variety of invisible hazards associated scientific information needed to en- are stressing ecosystems beyond the with household products, pesticides, sure environmental protection is still breaking point, and we do not know missing. The quality of most of our how to help ecosystems recover, even Wendy Wagner is a leading authority on the air, water, and land is unknown, even though the effectiveness of some fed- use of science by environmental policymakers. 20x21_FFWagner 11/1/04 2:53 PM Page 21

food additives, and products of bio- but also may actively work to obfus- sources of pollution being released technology. cate especially damaging informa- into air, water, or land. Beyond these In an article that was published tion produced by others. In dramat- limited requirements, the laws gener- this fall by the Duke Law Journal, I ic cases, where expensive liability or ally excuse regulated entities from argue that a fair share of the blame regulations could result from an un- providing information on their activ- for this pervasive ignorance can be flattering scientific assessment of ities. It is rare for a facility engaged in assigned to the environmental laws their activities, these actors could manufacturing or polluting activities, themselves, particularly their failure have strong incentives to discredit for example, to be required to moni- to require regulated parties to share in third-party research and obscure tor the receiving environment into producing this information. Despite research results. which it places its products or pollu- creating most of the need for such Experience in the area of public tants or to test for potential adverse information, regulated actors are ex- health and safety confirms these sus- effects on health or the environment. cused under most environmental laws picions. Industries rarely volunteer It is bad enough that environmen- from providing any more than a par- information on the long-term safety tal laws fail to require regulated actors tial inventory of their activities and are of their products and activities, and to produce information needed to not required to track the resulting they lobby against laws that require assess the adverse effects of their impact of their products and activities them to share even basic internal products and wastes, but some envi- on public health and the environ- information. For example, the mak- ronmental laws lead to a still worse ment. In fact, in many circumstances ers of the Dalkon shield, ultra- state of affairs by legally reinforcing the laws actually deter regulated par- absorbent tampons, Bendectin, DES, an actor’s predisposition toward con- ties from volunteering information on breast implants, and tobacco all dug cealing damaging information and the adverse effects of their activities. in their heels and resisted conduct- mounting attacks on unflattering Regulators are more likely to greet ing safety research on their products, public research. First, the environ- such information with fines and even when preliminary signs indicat- mental laws generally penalize, rather increased restrictions than with regu- ed that the products might harm the than reward, facilities for volunteer- latory rewards and letters of commen- public. “Hired gun” attacks commis- ing information. Under the current dation. In such a legal environment, sioned by manufacturers against regulatory system, sharing adverse regulated parties might be more will- publicly funded research are also information about one’s activities is ing to contribute, and even invest in, common in high-stakes cases where equivalent to shooting oneself in the the perpetuation of ignorance. acceptance of the results could lead foot. Except for a few partial protec- The failure of the laws to require to shattering liability and publicity. tions, regulation and enforcement regulated parties to contribute to The tobacco industry is most notori- increase in lockstep with the availabil- research about the adverse effects of ous for using this tactic, but it is by no ity of public information about a their activities is especially unfortu- means alone. Individual companies product or a facility’s adverse effects. nate given their superior access to or trade associations engaged in the Coors Brewing Corporation learned much of the information needed to production of oil, lead, asbestos, and this lesson the hard way when it vol- understand the effects of their prod- beryllium have all actively worked untarily discovered and reported to ucts and activities on health and the to discredit research that, if widely state regulators 189 violations of environment. Regulated entities best understood and accepted, would like- Clean Air Act requirements. Rather know the contents, contaminants, and ly result in substantial liability, regula- than rewarding Coors’ candor, state waste products associated with their tory, and market costs. regulators greeted the voluntary dis- activities, and they often experience In such a setting, where there are closure with a $1.05 million fine and firsthand any adverse effects of the such strong incentives for ignorance, more stringent emissions reduction products and associated wastes on one would expect the environmental requirements. public health and the environment. laws to play a vital role in reversing A variety of legal tools also facili- With mountains of detailed facts the rational inclination of regulated tates the ability of regulated actors to about the nature of their products actors to conceal adverse informa- disparage credible research. A new and polluting activities, these entities tion and resist research on potential law passed as an appropriations rider amass specialized private expertise harms. Nevertheless, environmental in 2001, for example, provides pri- about the ways their activities or laws as currently implemented re- vate parties with the opportunity to products could cause harm. quire regulated parties to produce complain about the quality of public Indeed, faced with especially in- information on their products and research disseminated by agencies criminating information about the activities only in limited circum- without the risk of sanctions if the adverse effects of a product or activ- stances, such as testing for a subset of complaints are unfounded. Just in ity, regulated actors may not only pesticides and toxic substances and the last two years, a number of indus- decline to voluntarily assist in pro- requiring polluters to monitor the try groups have used the act to peti- ducing or sharing this information amount (not the effects) of large tion for the [ CONTINUED ON PAGE 56 ]

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CRIMES, SENTENCES, FACULTY Susan R. AND JURIES The ongoing struggle over who has Klein final authority to define a “crime.”

This excerpt is taken in part from “Es- wise apply to an offense element. weapon during a drug trafficking sential Elements,” 54 Vand.L.Rev. 1467 However, in a series of recent offense. That same term, the Court (2001) (with Nancy J. King), and “Ap- closely divided cases, the Supreme in Ring v. Arizona, 536 U.S. 584 prendi and Plea Bargaining,” 54 Court has shown itself much more (2002), applied Apprendi to hold that Stan.L.Rev. 295 (2001) (with King). willing to restrict legislative experi- because Arizona conditioned eligibil- The Supreme Court cited these articles mentation in crime and punishment ity for the death penalty upon the in Harris and Blakely. The practical where the government has labeled presence of an aggravating fact that implications of Blakely, as discussed the proceeding a criminal one but was not an element of first-degree below, were published as “Beyond Blake- attempted to selectively circumvent murder, the Sixth Amendment guar- ly,” 16 Fed.Sent.Rep. 314 (June 2004) constitutional guarantees, particular- anteed the defendant a right to a jury (with King), and a more theoretical ver- ly the Sixth Amendment right to a determination of that fact. The Court sion was presented at a Stanford sentenc- jury trial. In the most important of stated: “If a state makes an increase in ing symposium on October 8, 2004. these cases, Apprendi v. New Jersey, a defendant’s authorized punish- 530 U.S. 466 (2000), a closely divi- ment contingent on the finding of HE COURT HAS STRUGGLED ded Court declared that “any fact fact, that fact—no matter how the for well over a century that increases the penalty for a crime state labels it—must be found by a with the issue of who has beyond the prescribed statutory max- jury beyond a reasonable doubt.” Tfinal authority to define imum [other than the fact of a prior The most recent case, Blakely v. what is a “crime” for purposes of conviction] must be submitted to a Washington, 124 S.Ct. 2531 (June 24, applying procedural protection guar- jury and proved beyond a reasonable 2004), presented the Court with anteed by the Constitution in crimi- doubt.” The trial judge could not another variation of the Apprendi nal cases. After numerous shifts back potentially double Apprendi’s 10-year problem, this one posed by a state and forth from judicial to legislative statutory maximum penalty for the sentencing scheme that included supremacy, the Court settled upon weapon’s offense on the basis of his what might be called dueling maxi- a test for policing the criminal-civil finding, by a preponderance of the mum sentencing statutes. The statute divide, a multifactor analysis that evidence, that the defendant “acted setting the sentencing ranges for each will permit courts to override leg- with a purpose to intimidate an indi- class of felony offense in Washington islative intent in the rare case where vidual . . . because of race.” designated 10 years as the maximum the action waddles and quacks like Two years later, the four justices punishment for Blakely’s Class B kid- a crime despite a contrary legislative who dissented in Apprendi, joined by napping offense. Washington’s Sen- label. Just as labeling an action “civil” Justice Scalia, held in Harris v. United tencing Reform Act specified in a sep- may allow the government to cir- States, 536 U.S. 545 (2002), that Ap- arate statutory provision a “standard cumvent constitutional criminal pro- prendi did not require a fact trigger- range” of 49 to 53 months for Blake- cedure entirely, so labeling a fact an ing a mandatory minimum sentence ly’s offense, a range that could not be “affirmative defense,” a “mandatory to be established beyond a reason- exceeded unless a judge found “sub- minimum,” an “aggravating factor,” able doubt to a jury. Thus, the trial stantial and compelling reasons” justi- or a “sentencing factor” instead of judge could increase Harris’ sentence fying an exceptional sentence. The an element of the offense may allow from five to seven years, still with- trial judge in Blakely’s case imposed states and the federal government in the statutory maximum of life an exceptional sentence of 90 months, to escape constitutional criminal imprisonment, on the basis of a find- after finding that Blakely had acted procedure selectively, bypassing ing by a preponderance of evidence with “deliberate cruelty,” an enumer- the burden of proof, pleading, and that the defendant “brandished” ated factor for an exceptional sen- jury requirements that would other- rather than merely “possessed” a tence. With Justice Scalia writing for

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the same five justices who composed offenses. Any fact triggering a sen- the Federal Sentencing Guidelines the majority in Apprendi, the Court tence exceeding 53 months, the Court and how assistant U.S. attorneys, fed- concluded that because a sentence reasoned, must be admitted by the eral public defenders, and district higher than 53 months required addi- defendant or proven to a jury beyond and appellate court judges might tional factual findings not admitted a reasonable doubt. proceed post-Blakely. In Part III, we by the defendant or proven beyond a In holding that Blakely’s sentence discuss Blakely challenges raised in reasonable doubt to a jury as part of was implemented in a manner incon- cases on direct and collateral review. his conviction, the relevant “statutory sistent with the Sixth Amendment Finally, in Part IV, we collect some of maximum” was the 53-month pre- right to a jury trial, the decision the various options for reform open sumptive sentence and not the 10- threatens the operation of the Federal to Congress and state legislatures. year maximum specified for Class B Sentencing Guidelines and the pre- sumptive sentencing systems in 14 Susan R. Klein is the Baker & Botts Pro- Klein is an expert in the fields of criminal states. In Parts I and II of this article, fessor in Law at The University of Texas procedure, federal criminal law, and ethics. we address how Blakely has affected at Austin. 24x25_FFForbath 11/1/04 3:05 PM Page 24

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SOCIAL RIGHTS AND FACULTY William THE CONSTITUTION Most other democratic nations include these Forbath rights in their constitutions.Why don’t we?

“Social rights”—to housing, health care, ry’s great speeches, proposing a civil and political rights meaningful. education, and so on—form an important “Second Bill of Rights.” As FDR con- FDR did not propose to amend the part of most of the world’s constitutions. ceived it, every American would have Constitution. He argued instead that So I was not surprised to be asked to give the right to a “useful job” and a decent these rights should be seen as funda- a talk on social rights and the American livelihood, the right to a “good educa- mental commitments already implicit Constitution at a televised seminar in tion,” “adequate medical care and the in the Constitution’s promises of lib- Brasilia last summer that paired UT law opportunity to . . . enjoy good health,” erty and equality, commitments that professors with members of Brazil’s Su- and the right to “adequate protection legislators, not courts, must redeem. preme Court. Here is a revised version of from the economic fears of old age, FDR offered his Second Bill to my talk, drawing on work in constitution- sickness, accident, and unemploy- the world—and the world bought al history and theory that I’ve produced ment.” Social insurance would cover it. During the 1940s, the Second over the past few years. every jobless American and every Bill’s social rights became a leading needy family. American export, shaping the United OST OF THE WORLD’S The framers, FDR argued, knew Nations’ Universal Declaration of constitutions include that personal liberty and political Human Rights and influencing three kinds of rights: freedom were inseparable from a dozens of other new constitutions. Mcivil, political, and measure of economic independence But the United States did not embrace social. The U.S. Constitution is an out- and material security. But in their day the Second Bill, and today America lier. It makes no mention of “social land was cheap and plentiful, and exports an anti-social-and-economic- rights,” and the Supreme Court says even laborers owned some property. rights dogma sometimes called the the Constitution’s “majestic generali- So, for a century or more, the old “Washington consensus.” Roosevelt’s ties,” such as “equal protection of the common-law rights “involved in Second Bill is forgotten, and to most laws,” confer no “affirmative rights”— acquiring and possessing property” Americans the idea of “social rights” no right to housing or health care, combined with the ballot and the may sound like a suspicious foreign for example, or to decent work or a freedom to live by one’s “own lights” ideology. decent livelihood. If most other dem- to ensure the liberty of ordinary Elsewhere, during the post–World ocratic nations include these rights in Americans. By the end of the nine- War II years, advanced capitalist their constitutions—either through teenth century, however, working democracies enacted broad new explicit textual provision or via inter- Americans were propertyless and social rights, many including them in pretation, why don’t we? dependent on “our industrial combi- new postwar constitutions, others in Standard answers hinge on gen- nations [which] had become great groundbreaking legislation such as eralities like “American individual- uncontrolled and irresponsible units FDR championed. Here, things un- ism,” or the fact that ours is an “eigh- of power within the State.” These new folded differently. From the late 1930s teenth-century Constitution,” whose conditions robbed the old rights of onward, FDR and New Dealers in rights language is “negative,” impos- their ability to secure the political Congress tried to pass bills to enact ing only limits on government, not equality and “welfare and happiness national health insurance, to remedy “positive” duties of social provision. of ordinary Americans.” The “politi- the many gaps in the Social Security These answers assume that our con- cal tyrants” of the eighteenth century Act, and to commit the federal gov- stitutional tradition has never sup- had been replaced by “economic roy- ernment to full employment. These ported robust social rights claims, alists.” A mature industrial America programs enjoyed broad support, but and that’s wrong. Exactly sixty years needed an “economic constitutional there was a problem—a reactionary ago, in 1944, Franklin Roosevelt de- order” and a “declaration of social core at the heart of Roosevelt’s liberal livered one of the twentieth centu- and economic right” to keep citizens’ coalition. The Southern delegates in

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Congress were all Democrats, but by icans. The oligarchs who ruled the Forbath came to The University of Texas in the late 1930s, they had come to view South were determined to preserve 1997 after more than a decade at UCLA. the New Deal agenda as too great a a social and economic system that threat to the South’s racial order and descended in apostolic succession tional democracy, our betrayal of its caste-based, low-wage feudal econo- from slavery and rested on the open nineteenth-century constitutional my. No doubt the Dixiecrats in Con- denial of any such equality. Through- commitments thwarted that quintes- gress would have supported these out the nation, employers feared sentially twentieth-century project. efforts to “complete the New Deal” and loathed the Second Bill; but The New Deal was left incomplete; if they had voted the wishes of the elsewhere than the South, employ- the major programs it did enact were region’s disenfranchised black and ees had the vote. The lack of political crafted to exclude African Americans, poor white majority. But the same rights in that region (not only blacks and it enacted few broad social rights. combination of Dixecrat power and but also poor and working-class Instead, the industrial unions, aided constitutional bad faith that led the whites were prevented from voting) by New Deal labor reforms, bargained national government to condone Jim doomed the creation of social rights with employers to create a generous Crow undercut Roosevelt’s vision of throughout the nation. Thus, ironi- private welfare state of job security, a Second Bill of Rights. cally, even though most Americans pensions, and health insurance in the This was no coincidence. The shared with the rest of the advanced core of the industrial economy. This, Second Bill aimed to secure the equal world the view that social rights too, excluded most of the nation’s respect and dignity of working Amer- were essential to a modern constitu- black citizens. It [ CONTINUED ON PAGE 56 ]

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John Dzienkowski EQUITY INVESTMENTS: FACULTY AN UNDERSTATED DANGER

and Serious conflicts of interest arise when Robert Peroni lawyers invest in client stock.

Dzienkowski and Peroni began their erties. Clients have paid their legal fiduciary law. The traditional view teaching careers at the Tulane Law School bills by transferring non-cash property in the legal profession until the late in New Orleans. Dzienkowski taught in the to their lawyers. These business trans- 1990s was that lawyer equity invest- natural resources and professional respon- actions have been governed by the ments in clients should generally be sibility areas, and Peroni taught in the fed- conflict-of-interest rules in the ethics avoided because they pose special eral income tax, international tax, and pro- codes and by the basic principles of risks and conflicts. The fiduciary duty fessional responsibility areas. Their friend- ship and common interests have led to a Peroni (left) and Dzienkowski work together on ethics, natural resources, and tax matters. series of coauthored projects. In 1988 they coauthored the first major casebook on natural resource taxation. For several years they were contributing editors of the Natural Resources Tax Review, published by Tax Analysts. Their recent focus has turned to the interaction of legal ethics and business law practice. In 2000 Dzienkowski and Peroni coauthored the leading article “Multidisciplinary Practice and the Ameri- can Legal Profession” in the Fordham Law Review, a work that has been cited many times by other scholars. In 2002 they published “Lawyer Equity Investments in Clients” in the Texas Law Review. The following essay is based upon an excerpt from that article. Dzienkowski and Peroni have recently completed a coauthored work revis- ing the tax chapters of Hemingway’s Law of Oil and Gas and plan to coauthor many more articles critically analyzing the legal profession’s regulation of lawyers in the business law practice context.

INTRODUCTION

OR MANY YEARS, LAWYERS have entered into business transactions with their Fclients. Real estate lawyers have purchased investments in the real estate ventures for which they were performing legal work. Oil and gas lawyers have exchanged legal work for interests in oil and gas prop-

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case law and the application of both lawyers fulfill their function as gate- partner owns (i.e., whether the part- the Model Code and the Model Rule keepers of the securities laws if their ner’s stock portfolio is well diversi- provisions dealing with lawyer-client personal equity interests in the ven- fied), whether this is a controlling business transactions established a sig- ture will be injured by disclosure of block of stock, and the size of this nificant but not insurmountable barri- negative information concerning the investment compared to the partner’s er for lawyers seeking to invest in client? How can a client exercise its total net worth. But client consent clients. For many years law firms chose right to discharge a law firm, with or after full disclosure and an indepen- not to invest in clients because of the without cause, if that law firm has an dent determination that the conflict risks inherent in such transactions. investment in the client? Further- does not adversely affect the repre- Beginning in 1995, several bar more, in today’s climate of legal mal- sentation could solve the Rule 1.7(b) associations, ultimately including the practice and expansion of lawyers’ materially limited conflict. ABA in 2000, issued ethics opinions fiduciary duties, equity investments The major problem with allowing that basically placed their stamp of expose lawyers to potentially serious law firms to take equity interests in approval on lawyers obtaining equity liability if the parties suffer harm by clients is the possible impairment of interests in clients, subject to a few reason of a lawyer’s judgment colored the lawyer’s judgment because of the exceptions and provided that they by an equity investment. lawyer’s competing objective to maxi- meet certain requirements. Lawyers mize the value of the equity invest- throughout the country have used POTENTIAL AND ACTUAL ment. The lawyer’s ownership of these opinions to justify aggressive SUBSEQUENT CONFLICTS equity in the client creates a conflict and even arrogant demands for RESULTING FROM LAWYER EQUITY of interest between the lawyer’s own client equity in standard corporate financial interest as an equity owner practice. These opinions have com- INVESTMENTS IN CLIENTS and the client’s interest. This conflict pletely reversed the tradi- HEN A POTENTIAL may make it difficult for the lawyer to tional view of the orga- client approaches exercise independent professional nized bar that such prac- a law firm for rep- judgment and provide unbiased ad- tices should be severely W resentation, the firm vice to the client in an ongoing rep- restricted. Although they must check to see whether the repre- resentation. The key to whether the caution the lawyer about sentation of that potential client may conflict is actual or potential depends some of the ethical and be materially limited because of the upon the nature of the legal repre- nonethical issues that firm’s and individual lawyers’ respon- sentation undertaken by the lawyer. If could arise, these opin- sibilities to other clients, third per- the lawyer’s legal work has some ions greatly understate sons, and the law firm’s and lawyers’ potential bearing on increasing or re- the legal dangers facing personal interests. Thus, in most ducing the value of the lawyer’s the lawyer who enters into cases, a law firm’s or lawyer’s owner- shares, the conflict becomes actual these arrangements. ship of an equity interest in the plain- and more serious. If the legal repre- We challenge the tacit tiff or defendant gives rise to a con- sentation is unrelated to a potential approval that the orga- flict of interest that should be ana- effect on the value of the shares, the nized bar has given these lyzed under the conflict-of-interest conflict is more attenuated. modern arrangements in rules. Of course, a lawyer’s ownership A law firm may be influenced by which lawyers invest in of only a few shares or indirect own- its own investment and urge a client their clients. Even in situa- ership of client equity through own- to adopt a more risky or less risky tions in which the excep- ership of an interest in a diversified strategy than would be recommend- tions and requirements set mutual fund would be unlikely to give ed if the firm did not have the in- forth in these ethics opin- rise to a sufficiently definite conflict vestment. The potential impairment ions are met, the current of interest to trigger application of of the lawyer’s professional judg- practice of allowing equity the conflict-of-interest rules. On the ment may be illustrated by several investments in clients con- other hand, if a partner in the firm examples. In the first example, when tinues to severely undercut owns 10 percent of the defendant, a law firm accepts pre-IPO equity many time-honored ideals and the plaintiff asks the law firm to with a warrant to acquire more of the legal profession. represent it, that ownership interest shares at the IPO stage, the firm may How can lawyers exercise does create a conflict that must be have a divergent interest in the tim- independent professional carefully examined to determine ing of the IPO. The client may wish judgment and offer unbi- whether it is a materially limited con- to time the IPO to maximize the suc- ased legal advice to their flict of interest that precludes the cess of the offering, but the firm or clients if they have an own- lawyer from accepting the plaintiff’s specific lawyers in the firm may want ership interest at stake representation. In resolving this issue, more immediate access to their equi- in the venture? How can one must look at what other stock the ty. The lawyers [ CONTINUED ON PAGE 57 ]

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OUTSIDE DIRECTORS AND LAWSUITS: WHAT FACULTY Bernard Black ARE THE REAL RISKS? with Brian Chefﬁns Our investigation suggests that and Michael Klausner liability concern is overdone.

E OFTEN HEAR THAT even without out-of-pocket liability, sense that they obtain a settlement in hardly anyone wants directors have a number of incen- cases where directors are named as to sit on corporate tives, both financial and nonfinan- defendants. The damages plaintiffs W boards anymore cial, to do a good job. To be sure, receive, however, are almost always and that public companies struggle to those incentives are not perfect, but paid fully by the company, a directors’ attract outside directors. There are it is not clear that increasing the risk and officers’ (D&O) insurance policy, several reasons for this reluctance, of out-of-pocket liability would do or both. Indeed, our research has un- including the increased workload much to improve the vigor of board covered only one case where outside imposed by new corporate gover- oversight. Meanwhile, a significant directors made an out-of-pocket pay- nance rules and the risk of a damaged increase in this risk would likely have ment as part of a settlement.2 The reputation if problems arise. The pri- adverse consequences, including fos- details of settlements are sometimes mary concern that one hears, howev- tering a justified unwillingness of kept confidential, so we may have er, is that a lawsuit could oblige out- good candidates to serve. missed a few instances of out-of-pocket side directors to dig into their own liability, but such cases are surely rare.3 wallets—even if they do their job well. What about trials? Under corpo- Analysis of the relevant legal rules IT LOOKS SCARY OUT THERE . . . rate law, only once in modern times as well as experience suggests, however, CONSIDER THE UNITED STATES FIRST. has a U.S. court ruled that outside that the concern over personal liabili- Outside directors of public compa- directors of a public company were ty is unjustified by the facts. Provided nies face a daunting array of legal liable to pay damages. This was the an outside director of a public compa- obligations. Under federal securities famous 1985 Smith v. Van Gorkom case, ny refrains from enriching himself at law, directors are potentially liable in which a Delaware court found the company expense, he faces only a whenever a company makes mislead- defendants had exercised insufficient minute risk that he will pay damages ing public statements. Under corpo- care in approving a merger.4 Under or legal fees out of his own pocket. rate law, they can be sued for failure securities law, over 3,000 suits were This is true in the United States, as to adequately oversee management. filed in U.S. federal courts from 1990 well as in less lawsuit-happy countries. Recent court decisions suggest that to the present, many naming outside This is not to say that outside they can be liable under pension law directors as defendants. However, directors of public companies can as well, if the company’s retirement only three cases have gone to trial, just take it easy and let executives do plan holds the firm’s shares. To top only one of these involved outside as they please. As we discuss below, matters off, procedural rules govern- directors as defendants, it was unsuc- ing shareholder suits and the recov- cessful, and the directors were in any This article is a revised and condensed version of ery of attorneys’ fees make it easy for case protected by both indemnifica- Bernard Black, Brian Cheffins, and Michael Klaus- ner, Liability Risk for Outside Directors: A Cross-Border entrepreneurial lawyers to bring cases tion and D&O insurance. Analysis, European Financial Management vol. 10 against directors. The rarity of out-of-pocket liability (forthcoming 2004), available at http://ssrn.com/ abstract=557070, which in turn is a summary of two for outside directors is a predictable longer papers, Bernard S. Black, Brian R. Cheffins, result of a number of factors. To start, and Michael Klausner, Outside Director Liability work- THE REALITY IS LESS FRIGHTENING . . . ing paper 2004), available at http://ssrn.com/ many lawsuits are screened out early in abstract=382422, and Bernard S. Black and Brian R. DESPITE THE LITIGIOUS ENVIRONMENT the litigation process. The corporate Cheffins, Outside Director Liability Across Countries (working paper 2003), available at http://ssrn. in the United States, outside directors charters of almost all public compa- com/abstract=438321. We are keen to track down almost never end up paying out of nies eliminate director liability for counterexamples to the thesis advanced in this 1 paper, so readers should feel welcome to inform us their own pockets. Trials are rare, but breaches of the duty of care, the legal of any of which they are aware. plaintiffs are often successful in the duty that governs a director’s attentive-

2 8 UTLAW Winter 2005 28x29_FFBlack 11/1/04 3:09 PM Page 29

ness and diligence (as opposed to the indemnifying directors, U.S. public unavailable to pay damages or to duty of loyalty, which governs self-inter- companies invariably purchase D&O indemnify directors, the incentives to ested behavior). Even without this insurance. D&O policies provide a settle within D&O policy limits actually shield, judges often rely on the “busi- crucial final layer of protection to out- increase. The defendants’ motive to ness judgment rule” to dismiss a suit if side directors, assuming that they did settle within policy limits is obvious. the board has followed a reasonable not put money in their own pockets or For the plaintiffs, going to court is risky decision-making process, even if the otherwise commit “deliberate fraud,” because they might lose. Also, if a case process yielded a bad outcome. For thus triggering a policy exclusion. is litigated, the D&O policy will cover securities suits, a judge is obliged A pivotal by-product of the set of the directors’ defense costs, for both under federal securities law to dismiss the case unless plaintiffs—before they obtain access to company documents—present strong preliminary evidence of liability. Many securities law claims fail to surmount this hurdle. For lawsuits that make it through these initial screens, other factors protect outside directors from out-of- pocket liability. In a securities suit, the company, if solvent, is always a more attractive defendant. Outside directors are liable only in proportion to their culpability relative to other defendants, including the inside managers, and the outside directors’ relative culpability is usually low. In contrast, the company is fully liable, has a deeper pocket, and has fewer defens- es than the outside directors. If an outside director does end up on the hook to pay legal expenses or damages, U.S. public companies rou- tinely indemnify directors for legal costs and, in securities cases, damages as well. For indemnification to be available, a company’s directors must have acted in “good faith,” in the Black holds the Hayden W. Head Regents Chair for Faculty Excellence. (See story on page 47.) sense that they have not engaged in a self-interested transaction or exhibit- protections just outlined is that plain- the trial and, if the directors lose, the ed extreme inattentiveness bordering tiffs, defendants, and insurers all have likely appeal. Thus, taking a case to on intentional neglect. In addition to strong incentives to settle suits before trial can shrink substantially the princi- trial on terms that leave outside direc- pal “deep pocket”—the D&O policy— 1. Directors with day-to-day management responsi- tors’ personal assets untouched. Ex- from which the plaintiffs hope to col- bility do face some risk of paying civil damages and are sometimes even subject to criminal prosecution. cept in rare cases, a company’s assets lect. A settlement avoids this risk. Our research, however, focuses on outside directors. and D&O insurance are the pots of Insurers, in turn, will likely go 2. We can’t name the company because the settle- gold targeted in a lawsuit. Especially along. For both legal and reputa- ment details are confidential. We are also aware of one ongoing case in which the corporation is insol- when a trial could expose them to a tional reasons, they rarely reject a vent, the D&O insurer is contesting coverage, and risk of out-of-pocket liability, directors settlement to which the plaintiff and outside directors are currently paying their own legal expenses and may ultimately face out-of- will welcome a settlement that is the defendant directors have agreed. pocket liability. It is unclear, however, whether the entirely funded by the company and Indeed, we know of no shareholder insurer will succeed in denying coverage. the insurer. Plaintiffs’ lawyers will be suits since 1990 (as far back as we 3. One cannot prove a negative (the absence of out-of-pocket liability). But we have made exten- similarly inclined, since a trial is risky looked) that insurers have forced to sive efforts to find counterexamples, including and time-consuming—particularly if go to trial. Insurers can predict the consulting with numerous lawyers specializing in corporate and securities litigation and presenting there are appeals, which there surely frequency and expected amount of our work at practitioner conferences. will be if outside directors face an out- settlements and can set premiums 4. Even here, the acquiring company voluntarily paid the claims against the takeover target’s outside of-pocket payment. high enough to cover these payouts. directors, so in the end the directors did not pay. If a company is insolvent, and thus Shareholders [ CONTINUED ON PAGE 60 ]

PHOTOGRAPH BY WYATT MCSPADDEN Winter 2005 UTLAW 29 30x31_FFBerman 11/1/04 5:09 PM Page 30

FOCUS

CONSTITUTIONAL FACULTY Mitchell DECISION RULES Exploring the logical structure of Berman constitutional adjudication.

OW DO COURTS ADJUDICATE constitutional disputes? The orthodox view recog- Hnizes two steps: first, a court interprets the Constitution; second, it applies the interpreted meaning to reach a holding. Take one example at random: having interpreted the Equal Protection Clause to provide that racial classifications must be narrowly tailored to advance a compelling interest, the Supreme Court then concluded that the University of Michigan Law School’s affirmative action program sat- isfies that test, hence is constitutional. To be sure, that first step—interpretation—is more difficult than is sometimes naively supposed. Philip Bobbitt famously typologized the “modalities” of constitutional interpretation to include text, history, structure, precedent, prudence, and ethics. And many scholars, Sandy Levinson notable among them, have demonstrated that choos- ing and applying the interpretive modalities are very far from mechanical processes. Still, increasing realism about the nature of interpretation is not inconsistent with the standard notion that judicial review consists of two steps (interpretation and application) and two outputs (meanings and holdings). Nonetheless, this two-step view will not do, for too much of constitutional law is not plausibly described as constitutional “meaning.” Of course, the claim that some particular court- announced constitutional doctrine ex- tends beyond interpretation is familiar. Thus have critics charged that the pre-

A forthcoming essay in the Texas Law Review applies this analysis to partisan gerrymandering.

30 UTLAW Winter 2005 30x31_FFBerman 11/1/04 5:09 PM Page 31

cisely worded Miranda warnings or Spurred in part by Larry Sager’s obser- able, all things considered, adminis- Roe’s trimester rule are “legislation vation, 25 years ago, that much of con- tered via a decision rule that courts from the bench,” not constitutional stitutional doctrine underenforces con- must conclude that an arrest was rea- interpretation. But my point is more stitutional norms, scholars are increas- sonable if the offender committed any fundamental: an ocean of contempo- ingly attuned to the fact that the “con- criminal offense in the officer’s pres- rary constitutional doctrine—from the stitutional doctrine” issuing from our ence. The newly evolving Commerce tiers of Equal Protection scrutiny to courts (the U.S. Supreme Court most Clause doctrine that permits Congress quotidian details of complex justicia- particularly) is not identical to what to regulate intrastate activities only if bility rules—is a product of processes courts take the Constitution to mean. the activity is commercial in character, not comfortably termed interpreta- This is a step in the right direction, but can be reconceived as the conjunction tion. So we may do better to think of only one step. Having noticed what of an operative proposition that Con- three steps, not two: interpretation, constitutional doctrine is not, what can gress may regulate under the Com- doctrine creation, and application. we say about what it is? Progress in all merce Clause only for commercial pur- This is not a novel observation. domains of knowledge—law no less poses and a decision rule that courts than natural sciences—requires taxo- conclusively presume lack of the requi- nomic understanding. Yet constitution- site commercial purpose if the regulat- al theorists rarely turn classificatory ed activity is not itself commercial. attention to their field, often describ- Now, I do not insist that each of the ing constitutional doctrine as an undif- particular doctrinal unpackings I have ferentiated mass of “interpretations, just offered is correct, let alone incon- reasons, principles, and frameworks.” testable. They simply illustrate how the In recent work I have offered the conceptual distinction between opera- start (only the start) of a taxonomy tive propositions and decision rules of constitutional doctrine by distin- might look in practice. A separate guishing judicial interpretations of question, though, concerns what is to constitutional meaning from direc- be gained by the effort. tions regarding how courts should In my view, doctrinal classification decide whether constitutional mean- along these lines can have substantial ing has been complied with. Coining practical value. It can, for example: terms, I call the former components enhance the social meaning, or cul- of doctrine “constitutional operative tural uptake, of judicial decisions; fa- propositions” and the latter “constitu- cilitate more sensible judicial refine- tional decision rules.” ment of constitutional doctrine; and This is admittedly abstract. So con- clear more space for the democrati- sider a few concrete examples of the cally accountable branches to become distinction I mean to capture. The Mi- involved in the enterprise of constitu- randa doctrine is commonly thought to tional implementation. order police officers to inform suspects Take three brief illustrations. The of their rights prior to custodial interro- Lago Vista decision I just mentioned gation. However, it is better understood was widely denounced by those who as an operative proposition that state- read it to condone the police officer’s ments “compelled” by the police are callousness. Very possibly, though, the inadmissible, administered via a deci- public would have a healthier sense of sion rule directing courts to conclude officers’ true constitutional responsi- that a statement was compelled if elicit- bilities, and of the propriety of this pared during an unwarned custodial inter- ticular officer’s conduct, if the Court rogation. In a recent case from Lago had made the constitutional operative Vista, Texas, involving the arrest of a proposition explicit—an arrest does woman for failing to have seat-belted violate the Fourth Amendment if it is her children, the Court held that an not reasonable under all the circum- officer who has probable cause to be- stances—and then explained that it lieve than an individual has committed selected an underenforcing decision any criminal offense in his presence rule for pragmatic reasons. The Miran- may, without violating the Fourth da decision has generated many subor- Amendment, arrest her. This doctrine dinate questions, such as whether of- can be analyzed as an operative propo- ficers may forgo the warnings in sition that all arrests must be reason- emergencies, [ CONTINUED ON PAGE 61 ]

PHOTOGRAPH BY WYATT MCSPADDEN Winter 2005 UTLAW 31 32x37_CoverStory 11/1/04 5:34 PM Page 32

MANAGINGPARTNERS

Two long-married couples offer advice to young lawyers who wish to become managers.

BY ALLEGRA J. YOUNG UT Law graduates Bryan and Michelle Parsons Goolsby both manage complex enterprises in addition to practicing law. 32x37_CoverStory 11/1/04 5:34 PM Page 33

Different institutions require different types of builders. This season, UTLAW talks with two long-married couples who, between them, work at four different types of corporations. In Dallas, Dean Foods’ Michelle Goolsby,’83, serves as a top manager and lawyer. Her husband, Bryan Goolsby, ’77, is a successful lawyer and the managing partner of Locke Liddell & Sapp LLP in Dallas, one of America’s largest law firms. In Houston we speak with Laura Beckworth, ’83, a lawyer who also helped build the Hobby Center for the Performing Arts, a public-private enterprise. Her husband, John Beckworth, ’83, is a named partner at the Watt Beckworth Thompson & Henneman law firm who, in his volunteer time, serves as the chairman of the board of trustees of the independent Kinkaid School. Both couples have also provided important support for UT Law’s mission of providing a first-class legal education for the next generation of lawyers. In this article, they discuss the unique managerial challenges they face in their careers and offer advice to young lawyers who wish to become managers.

MICHELLE GOOLSBY’S GOT MILK. Two billion sue a high-powered career, raise five children, gallons of it. The 1983 UT Law honors grad- Michelle and engage actively in public service, includ- uate serves as executive vice president, gen- ing supporting UT Law’s mission. Such a eral counsel, chief administrative officer, and Goolsby commitment to their marriage, family, and corporate secretary of Dean Foods. Head- community requires effort, perspective, and a quartered in Dallas, Dean Foods is the lead- Managing flexibility that they have cultivated over the ing dairy beverage company in the United years. They have also been resourceful in States, with annual sales of $10 billion and a large learning new skills, including the managerial 28,000 employees in three countries. The skills required for their management roles. company manufactures and distributes prod- corporation Michelle urges young lawyers to learn Mucts including such brands as Oak Farms from the many people and experiences they (milk and ice cream), Silk (soymilk), Marie’s encounter working on cases, even if they are (dressings), Horizon Organic (organic milk), relatively junior members of the project International Delight (flavored creamers), team. It was this attitude that helped and others. Michelle build her career, one project at a “It’s my job to understand our industry, time. She started as an associate at a law firm our operations, and the unique challenges and then worked for a corporation. When our company faces and then work with our she returned to law firm life she’d learned team to find the right solutions. Our success enough about business to successfully man- is graded the same way our company is grad- age a large section of the firm’s practice. By ed—meeting our short-term growth and 1998, when Dean Foods asked her to be- earnings targets while continuing to focus come a member of their executive manage- on the long-term strategic opportunities,” ment team, she was prepared. Michelle says of her role. “We learn from many people, whether Michelle’s position doesn’t always reflect we’re aware of it or not. I’ve learned man- a typical law student’s idea of what a lawyer agement skills throughout the years from does. In her managerial role, she is not the more-senior lawyers, from clients, and from lone trial lawyer winning the big case but an my own managers and coworkers (and, yes, institution builder working with hundreds even from my kids and my husband). I have of employees to help them succeed in a always tried to find the best attributes in common venture. It’s important work, and each of them and emulate those things, Goolsby is an important part of that team. stringing together the successful habits, traits, Michelle and her husband, Locke Liddell and problem-solving skills of lots of talented & Sapp LLP managing partner Bryan L. people. But regardless of your talent, there Goolsby, ’77, both have busy lives. Their part- is still no substitute for hard work and com- nership has expanded to allow each to pur- mitment. There is no silver bullet.”

PHOTOGRAPH BY WYATT MCSPADDEN Winter 2005 UTLAW 33 32x37_CoverStory 11/1/04 5:34 PM Page 34

ranks his current firm in the top five REIT practices in the country, and he sits as an associate member of the board of governors for the National Association of Real Estate AS MICHELLE AND HER HUSBAND, BRYAN, Investment Trusts. both rose through the ranks of their respec- BryanL. And that’s just his role as a lawyer. Bryan tive professions, they’ve shared many things, also balances these commitments with those including a familiarity with those concepts Goolsby to his marriage, his children, and his public of “hard work and commitment.” service. (He and Michelle support UT Law Locke Liddell & Sapp LLP was formed in Managing as members of the Charles Alan Wright 1999 from the merger of Liddell, Sapp, Society, he serves as a director for Junior Zivley, Hill & LaBoon and Locke Purnell partner Achievement of Texas and for SMU’s Cox Rain Harrell. The firm employs more than School of Business, and he is a member of a four hundred lawyers who represent a number ofDallas’ civic organizations.) Abroad range of businesses and individual How does he do this? “Building a prac- clients. In 2001 the Locke Liddell partners tice requires a lot of effort over a long peri- asked Bryan Goolsby, ’77, to assume the od of time. The efforts have to be sustain- additional responsibilities of managing able, meaning that your efforts have to be partner, a role that he had filled for Liddell in some balance with the rest of your life,” Sapp before the merger. By all accounts, he said. His firm sets goals that are both the firm has prospered under his steward- financial in nature and non–number driven ship, adding accomplished attorneys in stra- (e.g., individual client commitment). His tegic practice areas, increasing its diversity, firm also creates an environment that helps and making wise decisions that support in- individuals sustain their commitment to dustry leadership, community outreach, and their practice and to their outside interests. pro bono work. But even with the firm’s assistance, Gools- It’s not easy. As managing partner of a by emphasizes, a young lawyer needs to pri- large law firm, Bryan faces the challenge oritize. “The best approach is to focus on of coordinating a commonwealth of small becoming a top-notch lawyer. You should law firms within a larger corporate context. treat the prospects of participating in man- He must implement decisions that help agement as an obligation to serve your firm individual lawyers’ practices thrive. He rather than a career goal.” handles issues related to strategic planning, marketing, finance, general operations, and human resources (recruiting, pro- motions, retention). Bryan says, “To become a managing partner you typically need to be a top producing lawyer and have the people skills to deal with a diverse group of partners. The prac- START-UPS—for an individual product line tice of law is essentially a people business, Laura or an entire company—are risky. And they and a managing partner must be able to can feel even riskier when played out in the satisfy the expectations, however unrealis- Beckworth public eye. tic at times, of not only partners but de- Laura was raised in a prominent Houston manding clients.” Managing family with a unique legacy in public service. Managing partners often face the tough- Her grandfather and father were a former est challenge at the firm. They layer respon- the entre- Texas governor and a long-serving lieuten- sibilities for the firm on top of the needs ant governor, respectively, and her grand- oftheir own individual practice, which in- preneurial mother was Oveta Culp Hobby, a legendary clude significant client development and SHouston civic leader, presidential Cabinet service efforts. Bryan has built a nationally venture member, and publisher of the Houston Post recognized legal practice representing real newspaper. estate investment trusts (REITs). He has While at law school, Laura met classmate become involved in national REIT trade John Beckworth, ’83. They knew they shared associations, in part to build his practice interests early on. Both had a strong desire by meeting people and understanding the for a challenging career in a fast-moving city business better. Today, American Lawyer and a desire for public service born of fam-

34 UTLAW Winter 2005 PHOTOGRAPH BY ROCKY KNETEN 32x37_CoverStory 11/3/04 9:41 AM Page 35

“Effective service, particularly with established institutions, starts with understanding the organization.”

John and Laura Beckworth at the new Hobby Center for the Performing Arts in Houston. 32x37_CoverStory 11/1/04 5:34 PM Page 36

ily experience. They graduated, married, and Laura approached these multifaceted moved to Houston 21 years ago to pursue issues using many of the skills that she their goals and to raise a family, now three learned in law school and in her practice as sons strong. general counsel to her family’s media com- Upon Laura’s return to Houston, she pany. While she was not formally taught how practiced communications law and served to draft promotional materials or how to sell as general counsel to her family media com- projects to prospective donors, she used her pany, which at the time included Houston’s advocacy skills, legal knowledge, and prob- KPRC-TV. Her practice naturally focused lem-solving skills to accomplish those tasks on media law, with a healthy dose of em- and others. She helped her team identify ployment matters and governmental regu- times when outside legal help was required, latory compliance issues. She and her hus- and she served as an advocate and part-time band also supported UT Law with their mediator, working with architects, contrac- time and resources. tors, environmentalists, and arts groups, In 1994 Houston citizens established the among others. Houston Music Hall Foundation to build a By all media accounts, the Hobby Cen- new performing arts facility on the site ter team of volunteer leaders succeeded of the old Houston Music Hall. Two years beyond all expectations. In May 2002 later, Houston business leaders approached Houston’s Hobby Center for the Perform- William P. Hobby, the former Texas lieu- ing Arts, a sparkling state-of-the-art com- tenant governor and owner of the large plex, opened with a star-studded gala. The media corporation, about taking a leader- center’s main theater (there are two) seats ship role in the project and helping to pro- 2,650 under a domed ceiling that twinkles vide its initial charitable funding. Hobby with more than 2,000 stars against a blue agreed and suggested that his daughter background, duplicating the South Texas would be the family’s representative as the sky at the summer solstice. (Laura is quick project was undertaken. Laura Beckworth to point out that the domed ceiling was was called and, after catching her breath, made possible thanks to UT Law benefac- accepted the role for the Hobby family. tors Lee and Joe Jamail.) Now in its second She laughs when discussing how she operational year, the Hobby Center has received the responsibility of raising money hosted more than 500,000 patrons and has for and participating in building what is now produced more than 350 performances. the Hobby Center for the Performing Arts. And today, three years after the last nail was “The simple fact is that I missed the meet- hammered, Laura still serves as a board ing—wasn’t even invited to it. My father member and advisor. understood that Houston needed a new performing arts center; he was going to commit our family’s help to it, and I was supposed to help drive,” she said. The challenges of navigating the maze of public interests and regulations that accompanies construction of a complicated public building in downtown Houston JOHN AND LAURA BECKWORTH share a com- were significant. When Laura became John mitment to public service, something John’s involved, fundraising was just getting start- parents fostered in him from an early age. ed. The building site was adjacent to City Beckworth (His father was a long-serving U.S. con- Hall and an environmentally sensitive gressman, federal judge, and teacher.) But bayou. Since the complex would be pre- Managing coming from law school he was primarily sented as a gift to the City of Houston by interested in learning the craft of being private donors, there were additional man- volunteers a trial lawyer with a major national firm. agerial hurdles. The center would be built After he and Laura married and moved to on public land, which necessitated operat- Houston to start their family, John began ing within certain city regulations and Jwork at Fulbright & Jaworski, where he working closely with city staff and elected stayed for ten years, becoming a partner in officials. Finally, the community had to be the firm’s Litigation Section. Today he is a consulted with regard to how the building named partner in Watt Beckworth Thomp- would be used and by whom. son & Henneman, which focuses its law

36 UTLAW Winter 2005 32x37_CoverStory 11/1/04 5:34 PM Page 37

practice on commercial litigation, oil and a lawyer can yield significant contributions.” gas, insurance, employment, and media law. In particular, Beckworth notes, litigation “For my dad, being a lawyer was a way skills that transfer well to leadership in non- to help people. He was clear that lawyers profits include distilling complicated issues, occupy a position of privilege that carries effectively communicating ideas and goals, with it an obligation of service. Rather conflict resolution, and an appreciation for than seeking a paid public position, my bottom-line results. Beckworth adds lightly, compromise has been to work in a busy law “The thick skin you develop in years of practice and to do volunteer work as time butting heads in litigation helps a lot, too.” allows,” says John. “I am sure that many of And just how do couples as busy with our friends sought to become lawyers in career and family as the Beckworths and the the first place at least in part out of a desire Goolsbys find time to contribute to their for service. You need only to look at the communities when their family life and pri- State Bar’s voluntary records of the thou- mary careers are so demanding? “No one sands of hours lawyers contribute annually has the time,” says John. “But organizations to their communities to understand that can benefit from part-time volunteers who commitment.” are committed to trying to help. They seem As the son and grandson of teachers and to complement the full-time volunteers and school administrators, Beckworth devotes professionals.” many hours to volunteering at schools. He He urges young lawyers to get involved believes that quality education remains early and to take the time to learn what the most efficient means to address many makes an organization work, or sometimes of our society’s challenges. At UT Law, he not work, before attempting to assume a joined the leadership of the UT Law Alum- leadership role. “If you can choose an ni Association, serving first as a volunteer and organization, like a foundation or a school, eventually as its president in 1995. He con- and participate in a variety of positions for a tinues to serve as a trustee of the Law School sustained period, it can be a more satisfying Foundation. experience and, in turn, more useful to the Twelve years ago, John was invited to organization.” become a trustee of the Kinkaid School in The benefits flow both ways, too. “I never Houston, where he now serves as chairman expected to receive so many benefits, oppor- of the board and where he has worked dur- tunities, and deep friendships from a rela- ing more than a decade of significant tively small amount of time and effort.” change at the nationally recognized independent school. Among other projects in which he has been involved at Kinkaid have been two long-range plans, an ambitious expansion and deepening of curricular offer- ings, the development of the new Center for Student Life and Character Education, and an extensive $45 million-plus capital cam- AS YOUNG LAWYERS SEEK to make the most of paign that resulted in a reshaping of the A Flexible their law practice or branch out into alter- school’s physical plant. Since 1999 approxi- native careers, they are finding their degree mately 180,000 square feet of new space Degree is even more flexible than they realized. have been added. The J.D. skill set, at its core, helps UT Law Beckworth emphasizes that while some of graduates not only in the practice of law the skills needed to succeed as a volunteer but in many walks of life. overlap with those used in the courtroom, “The best skills I learned at UT Law in- not all do. “Effective service, particularly with cluded how to think critically and analytical- established institutions, requires some differ- ly and how to be a problem solver,” said ent approaches from working in private prac- AMichelle Goolsby in discussing how her tice, but there are a number of complemen- legal degree prepared her for the impor- tary skill applications,” he says. “It starts with tant managerial tasks her current position understanding the organization. Nonprofits requires. “If you have those skills, some cre- are driven by individual cultures and mis- ativity, and are open to opportunity, you can sions, and you have to try to understand and successfully manage people, departments, respect both. If you can do this, your skills as or companies. You can do anything.”

Winter 2005 UTLAW 37 38x41_FeatureActInnoc 11/1/04 5:45 PM Page 38

ACTUALinnocence UT Law’s new Actual Innocence Clinic has students reading between the lines in an effort to give just one innocent prisoner his life back. by Laura Castro Trognitz

ILLUSTRATION BY DIANE FENSTER STUDENTS IN UT LAW’S FLEDGLING ACTUAL ters on his desk are a constant reminder Clinic at UT Law, and David Sheppard, Innocence Clinic have screened more of the work ahead. He is one of three ’74, a criminal defense attorney, know than 500 letters from Texas inmates in criminal law attorneys who are supervis- firsthand that it’s not impossible. the past year, looking for new evidence ing students as they dig deep into the fac- “There have been over twenty exon- to prove that some of them did not tual cases of inmates serving long sen- eration cases in Texas between 1989 commit the serious crimes for which tences for murder, burglary, and rape. and 2002, driven primarily by the avail- they’re imprisoned. It’s a complex and The clinic, still brand-new, hasn’t yet ability of DNA testing,” said Dawson, difficult job, and there are hundreds sprung anyone from prison. Of the hun- whose scholarship has led to substantial more letters waiting to be read. dreds of cases reviewed so far, only 10 reform in the Texas criminal and juve- “We’re all looking for a needle in a to 15 merited investigations. But while nile laws. Of those cases, he emphasized, haystack—a claim of actual innocence Dawson acknowledges that the exonera- Allison was successful in using DNA that can be proved,” said Professor Ro- tion of an inmate can be a long shot, he testing and corroborating evidence to bert Dawson during a recent interview in and his colleagues, William P. Allison, prove the innocence of two inmates— his office, where tall stacks of inmate let- ’71, director of the Criminal Defense Christopher Ochoa and Carlos Laver- S38 UTLAW Winter 2005 L38x41_FeatureActInnoc 11/1/04 5:45 PM Page 39

Winter 2005 UTLAW 39 38x41_FeatureActInnoc 11/1/04 5:45 PM Page 40

nia—in 2000 and 2001. And Sheppard Dougherty, Hearon & Moody in Austin UT LAW PROFESSOR ROBERT DAWSON IS obtained freedom for a third, Richard will provide office and administrative ONE OF THREE CRIMINAL LAW ATTORNEYS Danzinger, in 2001. support when clinic cases are litigated, WHO ARE SUPERVISING STUDENTS IN THE It was these cases that inspired Alli- while UT Law faculty assistant Debbie FLEDGLING ACTUAL INNOCENCE CLINIC. son, Dawson, and Sheppard to start in Steed maintains the clinic’s docket and 2003 the Texas Center for Actual Inno- provides secretarial services. The cen- cence, a nonprofit corporation that op- ter’s founders do not receive salaries for erates the Actual Innocence Clinic. The supervising the clinic. Allison and Daw- three attorneys were confident that they son do it in addition to their normal could find and help additional inno- teaching responsibilities because they cent people languishing in Texas’ huge are passionate about the subject—some- prison population. thing that students notice immediately. “The Texas Department of Criminal “Their passion for the subject was Justice has 150,000 inmates incarcerat- clear to me in class and is one of the ed,” says Dawson, now in his 37th year things that motivated me to do the work,” of teaching at UT Law. “If the Texas jus- says third-year Kate Welbes, a former tice system is 99 percent accurate, there clinic student. The clinic, open to sec- are 1,500 innocent people in prison. ond- and third-year law students, meets And if the system is 99.9 percent accu- once a week to study topics such as the law rate, that’s still 150 innocent people in of exoneration upon proof of actual inno- prison,” he says. “That is both a reassur- cence or the science and law of DNA testing and a depressing thought.” ing. Students also spend time screening The center’s founders were also cer- letters from Texas inmates—ten every tain that law students would want to two weeks—with an eye to eliminating learn how to investigate and analyze cases with no claim of actual innocence. potential exoneration cases. “We ex- If an inmate isn’t making an inno- pected a lot of interest in the clinic cence claim, the student will draft a because the work is cutting edge,” says reply letter explaining why the center Professor Allison, noting that fifty stu- can’t help the inmate. However, students applied for ten slots the first dents do refer inmates to any resource semester the clinic was offered. that may help with their non-inno- “Actual innocence is unique because cence legal problems. The clinic will American courts have never been given also refer actual innocence claims from the option of finding people ‘innocent.’ non-Texas inmates to other innocence The only options judges and juries have projects. When a claim of innocence is are ‘guilty’ and ‘not guilty,’ ’’ Allison ex- made, students search appellate opin- plains. “It was only in the nineties that ions and news articles for information the courts and the legislature began that might refute the inmate’s claim. If to try to craft procedures, burdens of it is not refuted, then a 15-page ques- proof, pardons, and compensation tionnaire is sent to the inmate asking packages for the actually innocent.” for details, and the answers provided The first innocence project was help the student and supervising attor- founded in 1992 by attorney Barry neys decide whether to conduct a field Scheck at Cardozo University in New investigation. Students give class pre- York, with whom Allison worked on sentations on cases that have merit. a couple of exoneration cases. Today In the clinic, students are taught to there are about fifty innocence projects pay close attention to the facts of the nationwide. In Texas, efforts exist at case, and they are cautioned to be objec- “We’re all the University of Houston Law Center, tive when deciding the truth of an Texas Tech, and UT Law. The clinics at inmate’s claim. “You don’t want to be the University of Houston and UT Law overly cynical or overly naïve,” Dawson cosponsored a conference at UT Law says. Students are also reminded to on November 5 aimed at creating a maintain the confidentiality of the statewide actual innocence network. cases and communications with inmates, The Texas Center for Actual Inno- since both are covered by the attorney- cence, a nonprofit organization funded client privilege. For this reason, students a claim by private sources, is a unique hybrid and supervisors don’t discuss cases out- --NEEDLE--- model of how a project can be afford- side the clinic, including the current 10 able for public law schools. Graves, to 15 cases that have been identified cence that

40 UTLAW Winter 2005 PHOTOGRAPH BY WYATT MCSPADDEN 38x41_FeatureActInnoc 11/1/04 5:45 PM Page 41

as warranting further investigation. “Think of this as a law firm,” Shep- pard tells students. “Bill, Bob, and I are the partners, and you are associates in the firm. You’re doing what real lawyers do—working on real cases with real people. If you devote the time to it, you’ll find this work is more interesting than sitting through one more class reading about cases.” Former clinic student Debra Inno- centi, ’04, agrees. “It’s a meticulous process, but we learn a lot about what’s not found in the casebooks,” she says. “We start with handwritten inmate letters asking for everything from help with civil rights claims, to requests for transfers, to pleas for free legal help, to the heart- wrenching claims of innocence. We read between the lines of everything—the letters, the records, and the appellate opinions—to find the gold in the ore,” she says. “And the process is not just about crafting legal arguments; it includes the delicate task of persuading police officers and prosecutors to side with you in searching for the truth.” The process can at times be frustrat- ing. “Believing someone is actually innocent and proving it are two different things,” Dawson says. The process can require hundreds of hours of investigative work, and many of the cases don’t involve biological evidence, so DNA testing isn’t an option. There’s also a high burden placed on the defendant to show his actual innocence. “Texas law requires that the defendant prove by clear and convincing new evidence that he is actually innocent,” Dawson says. “The law of actual innocence starts with a presump- tion that a conviction is final and should remain final unless there is a strong showing that the inmate was not involved in the criminal episode.” The clinic uses the term “actual innocence” to mean that the defendant is looking for a able to prove that he did not engage in the conduct charged and that his conviction was the result of mistaken identi- fication or that nobody committed the offense of which he was convicted. Often the latter includes sexual assault cases involving children. Sheppard emphasizes that “actual innocence” of actual inno- is not the same as a wrongful convic- INAHAYSTACK tion caused by a procedural mistake. “Deductively learning this distinction can be proved.” from the letters, [ CONTINUED ON PAGE 61 ]

Winter 2005 UTLAW 41 cso_winter2004e.qxd 10/27/04 3:08 PM Page 1

FREE LISTING! TEXAS SMALL & MID-SIZE FIRM DIRECTORY Small and mid-size law firms as well as solo practitioners are RECRUIT THE BEST. invited to be included in this directory, which will be made available to UT Law students and alumni.

Mitch Kam, Associate Director [email protected]

PUBLIC SERVICE CAREER DAY FEBRUARY 11, 2005 Tina Fernandez Director of Public Service Programs [email protected]

SPRING ON-CAMPUS INTERVIEWS FEBRUARY 21-MARCH 3, 2005 Andrea Schlafer, OCI Coordinator [email protected]

TEXAS OFF-CAMPUS RECRUITMENT PROGRAM MARCH 4, 2005 Nicole Dubuque Job Fair Coordinator [email protected]

Recruitment Opportunities SMALL & MID-SIZE FIRM RECEPTION Spring 2005 MARCH 10, 2005 Mitch Kam, Associate Director [email protected]

OFF-CAMPUS JOB FAIRS AUGUST-SEPTEMBER 2005 Off-campus recruitment opportunities will be held in Atlanta, Boston, Chicago, Dallas, Los Angeles, Miami, New York, San Francisco, and Washington D.C. Nicole Dubuque Job Fair Coordinator [email protected] David Montoya Assistant Dean for Career Services

The University of Texas School of Law 727 East Dean Keeton Street JOB BANK & Austin, Texas 78705 RECRUIT-BY-MAIL (512) 232-1150 Deb Freeman Fax (512) 471-6790 Assistant Director for Communications www.utexas.edu/law/career [email protected] 43_TownesHallNotes 11/1/04 3:14 PM Page 43

TOWNES HALL NOTES

PRESIDENTIAL CAMPAIGN NOTEWORTHY BANDANNA A POLITICAL GIFT 46Bernard Black TO INSPIRE GOODWILL AND Philip Bobbitt MEMORY AMONG VOTERS, THIS Oren Bracha ONE FOR TEDDY ROOSEVELT'S Elizabeth Chestney,’02 UNSUCCESSFUL 1912 RUN FOR Robert (Ben) Fleming, ’05 PRESIDENT AS THE CANDIDATE Harold Joseph“Tex” Lezar,’77 OF THE PROGRESSIVE Curtis Meadows,’62 ("BULL MOOSE") THIRD PARTY. Benjamin W. Putnam,’04 THE HYDER COLLECTION Erin E. Ruble,’03 ALSO CONTAINS BANDANNAS Wayne Schiess FROM OTHER PRESIDENTIAL Diane Wood,’75 CAMPAIGNS, SOME WELL Elizabeth Youngdale,’92 REMEMBERED, SOME LARGELY FORGOTTEN. COURTESY OF MICHAEL HORN, CURATOR.

CLASS 50NOTES

IN 62MEMORIAM

Winter 2005 UTLAW 43 44x49_Noteworthy 11/1/04 6:25 PM Page 44

WORTHY

tional law, international security, and the history of strategy. They are Tra-

NOTE gic Choices (with Calabresi) (1978), Philip Bobbitt, Constitutional Fate (1982), Democracy and Deterrence (1987), U.S. Nuclear Strategy (with Freedman and Trever- ton) (1989),Constitutional Interpre- Curtis Meadows, tation (1991), and most recently The Shield of Achilles: War, Peace, and the Course of History (Knopf, 2002). His seventh, about the war on terror, will DianeWood be forthcoming this spring. In public life Bobbitt has served as THREE NAMED FELLOWS IN AMERICAN ACADEMY associate counsel to the president, the counselor on international law at the OF ARTS AND SCIENCES State Department, legal counsel to the Senate Iran-Contra Committee, and ROFESSOR PHILIP BOBBITT, country to have at least four faculty director for intelligence, senior direc- Curtis Meadows, ’62, and elected to the academy. Other members tor for critical infrastructure, and sen- Judge Diane P. Wood, ’75, from UT Law are Douglas Laycock, San- ior director for strategic planning at Phave been elected fellows ford Levinson, and Mark Yudof. the National Security Council. ofthe American Academy of Arts and Bobbitt, who holds the A. W. Walker Curtis Meadows serves as executive Sciences, one of the highest academic Centennial Chair in Law, is one of the director of the RGK Center for Phil- honors in the United States. Texas is nation’s leading constitutional theo- anthropy and Community Service. His one of only nine law schools in the rists. His six books focus on constitu- long career in the independent sector includes 18 years of service as UT Law is one of only nine law schools to have at least four faculty elected to the academy. Its president, CEO, and director of members include Philip Bobbitt (pictured here), Douglas Laycock, Sanford Levinson and Mark Yudof. the Meadows Foundation of Texas. During that time, the foundation grew its assets from $60 million to almost $735 million, while dispensing more than $270 million in gifts and grants to assist the work of charitable and community organizations in Texas. At the time of his retirement in 1996, the Meadows Foundation was the third-largest private foundation in Texas and the 39th-largest in the United States. He has also held leadership positions with more than sixty charitable and community organizations. Judge Wood currently serves as both a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer in law at the University of Chicago. Wood clerked for Judge Irving L. Goldberg of the Fifth Circuit and for U.S. Supreme Court associate justice Harry A. Blackmun. She worked briefly for the U.S. State Department on international investment, antitrust, and trans-

44 UTLAW Winter 2005 PHOTOGRAPH BY WYATT MCSPADDEN 44x49_Noteworthy 11/1/04 6:25 PM Page 45

RECENTLY Harold Joseph ESTABLISHED SCHOLARSHIPS “Tex”Lezar, Jr. MEMORIAL LECTURE SERIES CREATED S. Jack and Sophia K. Balagia Endowed Presidential Scholarship in Law TO HONOR LAWYER Established by S. Jack, Jr. (’76) and Mary D. Balagia, James K. and Linda F. Balagia, Susan M. Balagia, and Terry and Heather N SEPTEMBER 16 FORMER U.S. SOLICITOR GEN- Balagia, in honor of their parents eral Ted Olson delivered the inaugural Steve Bickerstaff Endowed Presidential speech of the Tex Lezar Memorial Lecture Scholarship in Law Series to a packed room in Dallas, Texas. Established by Bickerstaff, Heath, Smiley, Pollan, Kever & In addition to Olson’s powerful speech Oabout the separation of powers, Tex’s thirteen year-old McDaniel, L.L.P., in honor of Steve Bickerstaff, ’76 daughter, Maverick, read letters from both of Texas’ U.S. Eugene H. and Gaetana F. Broillet senators, Kay Bailey Hutchison and John Cornyn, which Endowed Presidential Scholarship in Law honored her late father. Le- Established by Bruce A. (’74) and Norah F. Broillet, in honor of zar’s family attended, as did his parents Senator Hutchison, members of the Law School fac- Edward Idar Endowed Scholarship in Law ulty and staff, and many of Established by Rebecca and Bruce Brockway and their daugh- Tex’s friends, including ters, Erin Brockway, Katherine Brockway, and Laura Brockway, Judge Kenneth Starr, who in memory of Rebecca’s father, Edward Idar, Jr., ’56 spearheaded efforts to en- John Lyle Endowed Presidential Scholarship in Law dow a memorial series to Established by friends in memory of former Texas congressman honor Tex. John Lyle Friends of Harold Jo- seph “Tex” Lezar, Jr., cre- Richard T. McCarroll Endowed ated the series to honor Presidential Scholarship in Law Lezar, who died this past Established by Brown McCarroll, L.L.P., in honor of Richard T. January. The UT Law– McCarroll, ’68 based fund will support an annual lecture on law and public policy, which will be held in different cities. Arvind J. Sudarshan Endowed Presidential Scholarship in Law Lezar loved the Law School and excelled in both academics and politics. He came to UT Law after graduating Established by the Sudarshan family in honor of Arvind J. Sudarshan, '86 from Yale. In 1976 he graduated, having served as editor in chief of the Texas Law Review. Lezar then served as an assistant to National Review editor Bill Buckley, a speech- fer of technology issues and until June 1980 as a lawyer writer for President Nixon, general counsel to the Texas at Covington & Burling, where her practice focused on secretary of state, and special counsel to U.S. attorney more general antitrust and commercial litigation issues. general William French Smith. He held the unprece- In 1981 Wood joined the faculty of the University of Chi- dented and unduplicated dual position as Smith’s assis- cago School of Law, taking two leaves to visit at Cornell tant attorney general for legal policy and chief of staff. and to revise the Department of Justice Antitrust Guide for Lezar left Washington in 1985 for Texas to work at International Operations. From 1993 until 1995 she served Carrington Coleman and to pursue public office. He also as deputy assistant general in the U.S. Antitrust Division served as CEO of the conservative think tank Empower with responsibility for the division’s international, appel- America. At the time of his death, Lezar was practicing late, and legal policy matters. Before her elevation as a appellate law for the Houston firm of Clements, O’Neill, judge in 1995, she was the Harold J. and Marion F. Green Pierce, Wilson & Fulkerson. He was the author of a news- Professor of International Legal Studies at the University paper column and edited the book Making Government of Chicago. Work: A Conservative Agenda for the States. Meadows and Wood received both their undergradu- His wife, Merrie Spaeth, and three children, Beau, ate and their J.D. degrees from UT-Austin. Philip, and Maverick, survive him.

Winter 2005 UTLAW 45 44x49_Noteworthy 11/3/04 9:31 AM Page 46

WORTHY

NOTE Legal Writing Program SCHIESS NAMED DIRECTOR, CHESTNEY,’02, AND YOUNGDALE,’92, HIRED

HIS YEAR THE LAW SCHOOL REORGANIZED an M.L.I.S. degree from UT-Austin’s library school. its writing program, appointing Wayne Schiess also implemented a significant change in the Schiess the new director of legal writing. Teaching Quizmaster program. “Historically, the TQs had Schiess, a senior lecturer, teaches the primarily an academic role,” Schiess said. “That role evolved required first-year course in legal writ- and expanded over the years to include a large social coming, as well as writing for litigation, basic ponent. Our alumni from the last fifteen years well know Tdrafting, and a seminar in legal writing. that your TQ was your friend, your mentor, your social Schiess announced the appointment of two new legal director, and your teacher.” This year the TQs returned to writing faculty members: Elizabeth Chestney, ’02, who their academic roots, with social responsibilities handled recently completed two years as a clerk for the Honorable by UT Law’s new societies. Sam Sparks of the United States District Court for the This change follows another change in the program, Western District of Texas, and Elizabeth Youngdale, ’92, from pass-fail to grades, implemented in 2003–04. formerly the head of the library’s student services department. In addition to her law degree, Youngdale holds Schiess (c.) added Youngdale (l.) and Chestney to the writing faculty.

4 6 U T LAW Winter 2005 PHOTOGRAPH BY WYATT MCSPADDEN 44x49_Noteworthy 11/3/04 9:51 AM Page 47

HIGH HONORS Bernard

Markesinis Receives (MALDEF) for his work to advance Commander of the the legal rights of Latinos. “The Legion of Honor Legal Service Award is presented S.Black On October 11, Professor Basil annually to an individual for his or Markesinis, QC, Jamail Regents her exemplary advancement of the CORPORATE LAW AND Chair in Law, was awarded the legal rights of Latinos,” said Luis insignia of the Commander of the Figueroa, legislative staff attorney FINANCE SCHOLAR Legion of Honor at his induction into at MALDEF. “Professor Torres is the French Academy as its new being recognized in particular for JOINS UT LAW FACULTY Corresponding Fellow. The rare com- his academic contributions to critical mander’s honor was conferred upon race theory. His book The Miner’s HIS FALL BERNARD S. BLACK him by President Chirac of France, Canary is one of the more powerful joined UT Law, where he who has described Markesinis as pieces dealing with everything from holds the Hayden W. Head “one of the very greatest compara- affirmative action and race theory TRegents Chair for Faculty tists of Europe.” to the importance of advancing the Excellence in the School of Law and causes of minorities.” Torres also is also codirector of the Center for Lebowitz Receives holds the post of president of the Law, Business, and Economics. Legion of Honor Insignia Association of American Law Dean Powers said: “Bernie Black On August 15 in a ceremony held in Schools (AALS). is a wonderful addition to our facul- the American Cemetery in Draguignan, ty. He is one of the nation’s leading France, emeritus professor Leon Reasoner, ’62, Honored scholars and teachers in corporate Lebowitz received France's Legion at Fifth Circuit law. He is also a nationally recog- of Honor medal. The ceremony was Judicial Conference nized leader in empirical research held sixty years after he and the U.S. This summer the U.S. Fifth Circuit on issues of corporate law and fi- Third Infantry invaded southern Court of Appeals awarded Harry nance. I am excited, and our students France to provide support to troops Reasoner, ’62, its 2004 American are excited, that he will be part of already in Normandy. Inns of Court Professionalism Award our family.” for the Fifth Circuit. The Circuit Black has authored or coauthored Rabban Wins Massey Professionalism Award is presented four books and more than fifty pub- Teaching Excellence Award to honor a senior practicing judge lished articles. (See related essay on page This year’s Massey Teaching or lawyer whose life and practice 28.) He is also sought for his legisla- Excellence Award honored law pro- display sterling character and unques- tive and regulatory advice and has fessor David M. Rabban, a member tioned integrity, coupled with ongoing advised on company law reform in of the elite Academy of Distinguished dedication to the highest standards Russia, South Korea, Mongolia, Viet- Teachers. “I am thrilled to be the first of the legal profession. Candidates are nam, and other countries. recipient of the Massey Teaching nominated through circuit-wide open Educated at Princeton (B.A.), Excellence Award and grateful to the nominations and selected by a panel Berkeley (M.A. in Physics), and Stan- Masseys for recognizing teaching of representatives from both the ford (J.D.), Black has taught at Col- through their generous endowment. It circuit and the American Inns of umbia University (1988–98) and is a pleasure to teach at a law school Court Foundation. Stanford (1998–2004). He served as whose faculty values teaching as well counsel to Commissioner Joseph A. as scholarship and whose students Tarlton Library Grundfest of the Securities and Ex- stimulate and appreciate the efforts Wins Library Public change Commission, as an attorney of their professors,” said Professor Relations Award at Skadden Arps in New York, and as Rabban. (For more information on the The Tarlton Law Library has a clerk for Judge Patricia Wald of the award, see cover story, Winter 2004.) received an LPeRCy award from the U.S. Court of Appeals, District of Library Public Relations Council for a Columbia Circuit. Torres Honored by MALDEF series of brochures that were designed Black joins a number of UT faculty Professor Gerald Torres has been and distributed by the library for the who are pursuing business law and given the 2004 Legal Service Award groups that utilize its resources, empirical studies, among them Henry by the Mexican American Legal including members of the Law School, T. C. Hu, Kate Litvak, Ronald Mann, Defense and Educational Fund UT-Austin, and the general public. Charles Silver, and Jay Westbrook.

Winter 2005 UTLAW 47 44x49_Noteworthy 11/1/04 6:25 PM Page 48

WORTHY BOOK ’EM NOTE Award-winning author and pro- OrenBracha fessor Jack Getman and INTELLECTUAL PROPERTY AND Ray Marshall, the secretary of LEGAL HISTORIAN JOINS UT LAW FACULTY labor under President HIS YEAR OREN BRACHA ciety at Harvard Law School. He clerked Jimmy Carter, joined UT Law as an for Chief Justice Aharon Barak of the have published assistant professor of Supreme Court of Israel from 1998 to a volume of law. His primary schol- 1999 and is currently completing his essays titled The Future of Labor arly interests are intel- dissertation, about the history of intel- Unions: Organized Labor in the 21st T Century. The essays stem from last lectual property, cyberlaw, and legal lectual property in the United States. history. Last year he served as a visit- He joins a number of UT faculty year’s conference in Washington, D.C., ing assistant professor of law. working in the areas of legal history where fifty distinguished international “We are delighted to have Oren in and intellectual property, among business and labor leaders and schol- Austin on a permanent basis. His schol- them William E. Forbath (legal his- ars discussed such topics as the arship and his proven ability to connect tory), Ronald J. Mann (commercial impact of the war on terrorism on with students will be great assets to our transactions, intellectual property, labor policy and law, immigration and community,” said Dean Bill Powers. and electronic commerce), David M. organizing, and the strengths and As a Byse Fellow at Harvard Law Rabban (labor law, higher education weaknesses of 21st-century labor School, Bracha taught a workshop titled and the law, and American legal his- unions in the United States, Europe, “Owning Ideas: Theoretical and Histor- tory), and R. Anthony Reese (copy- and the developing world. The book is ical Perspectives on Intellectual Prop- right, intellectual property, and the available from the Lyndon B. Johnson erty.” Bracha also worked on several law of cyberspace). School of Public Affairs. teaching and research projects for the Berkman Center for Internet and So- Bracha joined the permanent faculty this year. Where does philosophy, the oldest academic subject, stand at the beginning of the new millennium? Do Marx, Nietzsche, and Freud matter in the 21st century? In his new book, The Future of Philosophy (Oxford University Press, 2004), Brian Leiter brings together leading figures from four countries and most major branches of the discipline to offer answers.

This fall Sanford Levinson released Torture (Oxford University Press, 2004), an edited collection of essays by leading scholars from various disciplines who offer their reflections on torture. In it they discuss exactly what constitutes torture; under what circumstances, if ever, it should be used; and whether law can play any useful role in structuring its use. Contributors to the volume include such well-known figures as Alan Dershowitz, Jean Bethke Elshtain, Judge Richard Posner, and Elaine Scarry.

48 UTLAW Winter 2005 PHOTOGRAPH BY WYATT MCSPADDEN 44x49_Noteworthy 11/1/04 6:25 PM Page 49

Roy M. Mersky and coauthors Gary Hartman and Cindy L. Tate have released Landmark Supreme Court Cases: The Most Influential Rwandan War Decisions of the Supreme Court of the United States (Facts on File, 2004). The book provides current, concise, and straightforward Crimes summaries of more than 350 of the most important and influential United States Supreme Court cases, organized A to Z. Each entry includes TribunalInterns the case title and legal ROBERT “BEN” FLEMING,’05, BENJAMIN W. citation, year of decision, PUTNAM,’04, AND ERIN E. RUBLE,’‘03 key issue, historical WO RECENT GRADUATES with unique opportunities to learn background, ofthe Law School and and serve in the area of human rights legal argu- one current student and international criminal law, as well ments, deci- have been selected by as expose them to parts of the world sion (majority the International Crim- they would otherwise be unlikely to and dissent- Tinal Tribunal for Rwanda (ICTR) in see. It is a great tribute to Ben, Benjie, ing opinions), aftermath and signifi- Arusha, Tanzania, to serve as interns and Erin, but also to the work of for- cance, related cases, and in the Office of the Prose- recommended reading. cutor this fall. Robert “Ben” Fleming, ’05, Benjamin W. This spring Birmingham attorney Putnam, ’04, and Erin E. Jim Noles, ’97, released Twenty- Ruble, ’03, will be the three Minutes to Eternity: The seventh, eighth, and ninth Final Voyage of the Escort Carrier UT Law students and re- USS Liscome Bay (University of cent alumni to be accepted Alabama Press). This narrative of to participate in the ICTR the sinking of the ill-fated escort internship program. carrier, one of the U.S. Navy’s worst The United Nations Se- WWII disasters, has been reviewed curity Council established as “a fascinating read.” the International Criminal Tribunal for Rwanda in 1994 Interns work in the prosecutors’ office in Arusha, Tanzania. Chilling to investigate and pros- Effect ecute participants in the 1994 genocide mer UT interns and to the Law School (University in Rwanda. Students work in the Office that the tribunal has selected three Press of of the Prosecutor, conducting a range applicants from UT for the coming Colorado, of investigative work, factual develop- fall,” said Professor Karen Engle, di- 2004) is ment, and legal research on both pro- rector of the newly founded Center the third cedural and substantive international for Human Rights at the Law School. Lucinda criminal law issues. The International Criminal Tribunal Hayes The Law School has been sending for Rwanda internships last for three to mystery by students and graduates to the tribunal six months. The internships are open to Marianne since 2000, but this fall will mark the qualified second- and third-year stu- Wesson, first time it has sent three at one time. dents, as well as recent graduates who ’73, a UC-Boulder law professor. Other interns include James Sanford have strong backgrounds in interna- This time, Hayes must investigate a (summer of 2004), Hope Williams tional and/or criminal law. Participants murder in which one of the suspects, (2003), Yonit Sharaby (2003), Douglas receive either academic credit or a liv- a pornographer, invokes a free- Cox (2002), James Bischoff (2002), ing stipend, as well as airfare. Travel speech defense. Publishers Weekly and Roberta Ritvo (2000). expenses and stipends are made pos- said readers who enjoy the series “These internships provide UT sible by a grant from the Effie and will be “most satisfied.” Law students and recent graduates Wofford Cain Foundation.

Winter 2005 UTLAW 49 50x55_ClassNotes 11/1/04 3:20 PM Page 50 S E T O

N C L A S S S S A L

C N O T E S

will present a paper during its “Inter- homa in spring 2004. His topic was THROUGH SEPTEMBER 2004 national Trade and the Environment“ “Impact of Sarbanes-Oxley on Corporate Have questions about the overall devel- conference, August 7–14, 2004, at St. Governance.” He is a shareholder and opment program of the Law School, includ- Anthony’s College, University of Oxford. director of the Oklahoma City office of ing endowed gifts and planned giving? McDonald will also chair a discussion Conner & Winters. group and present an analysis of the Nancy Brazzil Guadalupe River Delta water usage issues Assistant Dean for Development in Texas. 1965 and Alumni Relations Arthur H. Bayern, of Bay- (512) 232-1129 1955 ern & Aycock in San Antonio, [email protected] was honored in October 2004 Sidney C. Farrar, Jr., senior district with the Distinguished Pro- Fran Chapman judge in Fort Worth, was awarded the bate Lawyer Lifetime Achievement Award Director of External Relations Silver Gavel by the Tarrant County Bar from the Real Estate, Probate, and Trust (512) 232-9394 Association at the Annual Law Day Award Law Section of the State Bar of Texas. A Banquet on May 13, 2004. This award is former chair of the section, a former pres- [email protected] presented to a jurist who has an out- ident of the San Antonio Bar Association, Want to become more involved in the standing reputation for competency, effi- and a former director of the State Bar of Law Alumni Association? Have ques- ciency, and integrity. Texas, Bayern has been active in the tions about the Law School’s Annual trusts, probate, and estates field for his Fund, including online giving and the entire career. Class Fundraising Competition? Need 1962 information about an upcoming alum- Harry M. Reasoner, of the Houston ni event, or to RSVP? office of Vinson & Elkins, has been 1967 awarded the 2004 American Inns of R. Kinnan Golemon has Tom Henninger, ’92 Court Professionalism Award for the Fifth been elected a fellow of the Director, Law Alumni Association Circuit Court of Appeals. Judge Patrick American Bar Foundation. The (512) 232-1156 E. Higginbotham of the U.S. Court of fellows constitute an honorary [email protected] Appeals for the Fifth Circuit, former pres- organization of practicing attorneys, ident of the American Inns of Court, pre- judges, and law teachers whose profes- Want to update your contact informa- sented the award to Reasoner in May at sional, public, and private careers have tion, including e-mail and employer? the 2004 Fifth Circuit Judicial Confer- demonstrated outstanding dedication to Suzette Molina ence in Austin. The Circuit Profession- the welfare of their communities and to alism Award is presented to honor a se- the highest principles of the legal profes- Database Manager nior practicing judge or lawyer whose life sion. He has also been appointed chair of (512) 232-1216 and practice display sterling character the American Bar Association Standing [email protected] and unquestioned integrity, coupled with Committee on Environmental Law. This ongoing dedication to the highest stan- committee is devoted to examination and dards of the legal profession. analysis of environmental law and policy 1949 issues, development of ABA policy posi- Ben McDonald, an adjunct tions in the field, and coordination and professor of environmental 1964 facilitation of ABA environmental law law and policy at Texas A&M Irwin H. Steinhorn was one of the programming and policymaking. Gole- University–Corpus Christi and keynote speakers at the 21st Annual man, the senior environmental partner in a practicing attorney, was selected as a Southwest Business Symposium, spon- the Austin office of Brown McCarroll, delegate to the Oxford Round Table and sored by the University of Central Okla- assumed his responsibilities at the con-

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clusion of the 2004 ABA annual meeting The Law Society Medal was struck in 1985 C L in early August. as an honor to be awarded by the Law 1974 A Society of Upper Canada, the governing Lee Polson of Strasburger & S body of the lawyers of Ontario, Canada, to Price has been appointed partner- S 1968 members who have made a significant in-charge of the Austin office. Claud McIver was chosen by Atlanta contribution to the profession. Chris is a In his new role, Polson will have N Magazine as one of the “Super Lawyers” litigator practicing in Toronto with Paliare primary responsibility for the office’s oper- O in 2004. In 1999 Atlanta Lawyer maga- Roland Rosenberg Rothstein. He is also a ations and strategic planning. In practice T zine named him one of the “Outstanding fellow of the American College of Trial for more than 28 years, Polson is a leading E Legal Minds in the City of Atlanta.” Lawyers and the current chair for Ontario. corporate and securities attorney. S

Charles H. Still, a senior partner in the Houston office of 1973 1975 Fulbright & Jaworski, recently Randolph D. Addison, president of J. Scott Chafin joined the Regulatory was recognized with three sep- Addison Law Firm, announces that the Law and Intellectual Property Division arate honors. In its survey of Fortune 1000 firm was named Law Firm of the Year at the of the U.S. Army Legal Service Agency general counsel, BTI Consulting Group 2003 “Excellence in Achievement” awards in Arlington, Virginia, in March as the named Still to its annual All-Star Team of ceremony held in Anaheim, California, on agency’s first full-time in-house trademark lawyers across the nation. Only the top February 14, 2004. The event was spon- and copyright attorney. ninety U.S. attorneys in client service are sored by The BoardRoom magazine, the named to this prominent list annually. Addi- official publication of the Association of Mike McConnell, a shareholder in Win- tionally, the Chambers & Partners, USA Private Club Directors. This was the fifth stead Sechrest & Minick’s Bankruptcy and directory named Still as a highly ranked consecutive year that Addison Law Firm Business Restructuring Practice Groups in Texas attorney in the practice area of cor- has received the prestigious award. Fort Worth, has been elected to serve as porate mergers and acquisitions. Still was a member of the American Law Institute. also recognized as one of the world’s lead- William L. LaFuze, a partner in the ing mergers and acquisitions lawyers in Houston office of Vinson & Elkins, has PLC Mergers and Acquisitions Handbook been named the chair of the American 1977 2003–2004. In addition to mergers and Bar Association's Section of Intellectual Strasburger & Price is pleased acquisitions, his practice areas include Property Law. LaFuze, who was elected to announce that John Ad- corporate finance and securities law and by his peers last year to lead the 20,000- kins, an attorney in the Hous- other corporate specialty areas. member IP Section, was sworn in as chair ton office of Strasburger & on August 7, 2004. He will serve a one- Price, has been named president-elect of year term. LaFuze has been a lawyer at the Texas Exes, the alumni association of 1969 V&E for 31 years and a partner since 1980. The University of Texas at Austin. Adkins Richard G. Morgan has joined Preis, He specializes in electronics, oil field will hold the position of president-elect Kraft & Roy and will manage the firm’s equipment, and computer-related litiga- for a one-year term under the president, Houston office. Morgan, formerly manag- tion. LaFuze is currently a member of the Hector DeLeon of Austin, ’73. As presi- ing partner at Shook, Hardy & Bacon, will Patent Public Advisory Committee of the dent-elect, Adkins will work closely with continue his energy law practice, with U.S. Patent and Trademark Office. the board of directors and carry out the particular emphasis on litigation. president’s duties in his absence. Upon John M. Nolan, a shareholder and the completion of his one-year term in member of Winstead Sechrest & Minick’s July 2005, he will become the president 1970 real estate/real estate finance practice, of the Texas Exes. In his legal practice, Michael Wims and David Stallard, has been elected a member in the Amer- Adkins represents financial institutions ’77, attended the Utah Attorney General's ican College of Real Estate Lawyers in lending transactions, regulatory mat- Criminal Justice Division annual retreat at (ACREL). Nolan, a 31-year veteran of the ters, and mergers and acquisitions. a mountain cabin near Salt Lake City on legal profession, was nominated for his July 9. In addition, the City Confidential professional legal reputation and expertise David J. Clark has become a share- episode on A&E that aired on July 17 fea- and for his contributions to the improve- holder in Robinson, Bradshaw & Hinson tured a case that Wims prosecuted, State ment of real estate law and practice. in Charlotte, North Carolina. He concen- of Utah v. John Pinder (double murders). trates his practice in the areas of general The episode is titled "Duchesne, Utah: Marianne Wesson published her third corporate and commercial law, interna- Blown Away." Lucinda Hayes mystery, Chilling Effect, in tional transactions, and construction. September 2004. Wesson, a distinguished law professor at the University of Colo- Paul Parsons has been ap- 1971 rado, Boulder, has published two previous pointed by the State Bar of Chris Paliare, LL.M., was one of five novels featuring Lucinda Hayes, Render Texas as the chair of the Com- recipients of the 2004 Law Society Medal. Up the Body and A Suggestion of Death. mittee on Laws Relating to Im-

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S migration and Nationality for 2004–05. prosecuted, State of Utah v. John Pinder of Law, was named the 2004 Outstanding

E He previously served as a member of the (double murders). The episode is titled Administrator of the Year by the Student

T board of governors of the American Immi- "Duchesne, Utah: Blown Away." Bar Association.

O gration Lawyers Association.

N Kenneth Ramirez, a partner Dewey Ballantine has announced that 1978 with the Austin office of Brace- S Alison L. Smith joined the firm as a lit- Steven L. Bell has become a fellow of well & Patterson, has been S igation partner and co-chair of the anti- the American College of Trial Lawyers, included in Chambers USA: A

L trust and trade regulation practice group one of the premier legal associations in America’s Leading Lawyers for Business

C in Houston. Smith was previously a part- America. The induction ceremony took 2004 Client’s Guide. ner with Vinson & Elkins, where she co- place during the 2003 annual meeting of chaired the firm’s antitrust practice group. the college in Montreal, Canada. From 1989 to 1991, Smith served in the U.S. 1982 Department of Justice as deputy assis- Mike Steinhauser was elected vice The Honorable Joseph “Tad” Hal- tant attorney general of the Antitrust Di- chairman of the board of Texas United bach of the 333rd District Court in vision. In this role she was responsible Bancshares, Inc., in 1998. The stock has Harris County, Texas, was elected as the for enforcement of the federal antitrust been traded on NASDAQ under the sym- administrative judge for the Board of Civil laws in the nation’s regulated industries, bol TXUI since 2003. He also continues District Judges in January 2004. including investigations and challenges to be very active in a small-town law of anticompetitive mergers and criminal practice in Flatonia, Texas, centered on antitrust violations. Smith is included in real estate, probate, estate planning, and 1983 Chambers & Partners, USA’s “America’s banking law. Susan F. Zinn of San Antonio was lead Leading Lawyers for Business in 2004,” counsel in the case Frew v. Hawkins, 124 recommended in antitrust. She has also Stephen D. Willey, an estate planner SCT 899 (2004). Zinn argued before the been named a “Texas Super Lawyer” for in Arlington, Texas, taught a practicum in U.S. Supreme Court in October 2003 and 2003 and 2004. estate planning as an adjunct professor at won in January 2004. The case involves a the Texas Wesleyan School of Law in the class-action lawsuit filed against Texas offi- David Stallard and Michael Wims, spring of 2004. He has served for more cials alleging improper medical care for ’70, attended the Utah Attorney Gener- than 22 years as a board member of Boys about 1.5 million indigent children covered al's Criminal Justice Division annual and Girls Clubs of Arlington, is the found- under the federal Medicaid program. At retreat at a mountain cabin near Salt ing officer-director of the Texas Alliance of issue was the ability of federal courts to Lake City on July 9. In addition, the City Boys and Girls Clubs, and of the Texas enforce legal settlements made by state Confidential episode on A&E that aired Boys and Girls Clubs Foundation, and officials. The Eleventh Amendment provides on July 17 featured a case that Wims founding officer-director of the Texas sovereign immunity to states, unless they Alliance for the Blind and of the Dallas voluntarily and unequivocally waive it. Foundation of the Blind. Willey was also There are legal exceptions, and one ques- pleased and honored recently by Fort tion before the justices was whether such Worth, Texas magazine, which named him exceptions applied in this case. one of “The City’s 91 Best Attorneys.”

Ellen Anderson Yarrell was named 1984 an Angel in Adoption by the Congres- Stephen W. Lemmon has sional Coalition on Adoption, Inc., in been elected partner with September 2004. This award recognizes the Austin firm of Brown 100 individuals from across the United McCarroll. Lemmon special- States in the field of adoption. Yarrell is izes in bankruptcy litigation, commer- currently serving a three-year term as cial litigation, and white-collar criminal membership chair and board member defense. He was formerly of counsel of the American Academy of Adoption with the firm. Attorneys. She served as the president of the Texas chapter of the American Academy of Matrimonial Lawyers from 1985 August 2003 to August 2004. Eric Groten is included in Chambers USA: America’s Leading Lawyers for Business 1980 2004 Client’s Guide. Alexandra Albright, associate dean Wims (left) and Stallard caution that the for students and technology and a senior Judith W. Ross has joined the Dallas “UT” on their shirts does not stand for “Utah.” lecturer at The University of Texas School office of Baker Botts as partner. Before

52 UTLAW Winter 2005 50x55_ClassNotes 11/1/04 3:20 PM Page 53

joining Baker Botts, Ross was a partner C L in the Dallas office and practice leader 1989 1991 A of the Houston and Dallas bankruptcy Alistair Dawson and his Dewey Gonsoulin of the S department of Thompson & Knight. wife, Wendy, announce the Houston office of Bracewell & S birth of their son, Collin Patterson has been recog- Ron Stutes has joined the Potter Min- Stuart McCoy Dawson. Collin nized by the firm as a rising N ton law firm in Tyler, where he will con- was born on March 8, 2004. Both he star for 2004. Gonsoulin’s practice focus- O centrate on commercial litigation and and Wendy are doing well. Alistair is a es on corporate finance. T work to establish a municipal law prac- partner in the Houston litigation and E tice in the area. trial firm of Beck, Redden & Secrest. Sandra L. Phillips has re- S He was recently recognized by Texas joined the Houston office of Alan Ytterberg, a partner in Monthly as a Rising Star in the Texas Shook, Hardy & Bacon as a the Houston office of Fulbright legal profession. partner in its Pharmaceutical & Jaworski, was named chair- and Medical Device Division. Phillips was man of the Institute for Re- David Frederick has been named an associate and partner in the firm’s habilitation and Research (TIRR) board of one of 12 of the D.C. area’s top appel- Houston office from 1995 to 2003. She directors. Located in the Texas Medical late litigators in July 2004 by Legal spent the past year as a partner at Baker Center, TIRR is recognized by U.S. News Times magazine in its ongoing Leading & Hostetler in Houston. & World Report as one of the leading Lawyers series. Frederick’s Supreme rehabilitation hospitals in the nation. Court and Appellate Advocacy was pub- Ytterberg joined the firm in 1985. He is lished in 2003 by West Publishing. He is 1992 certified in estate planning and probate a partner with Kellogg, Huber, Hansen, Jay Aldis, board-certified in labor and by the Texas Board of Legal Speciali- Todd & Evans. employment law by the Texas Board of Legal zation and currently serves as the chair Specialization, was elected partner in the of the Houston Bar Association Probate, Mark A. Kammer and Linda W. Browning Houston firm of Bracewell & Patterson. Trusts, and Estates Section. opened the law firm of Kammer Browning in February 2004. Both are registered patent attorneys and practice in the field 1993 1986 of intellectual property law, Kammer with Carol Huneke received the Houston lawyer Daniel David Hu has a focus on electronic and computer tech- 2004 president's award from received the Justice David Wellington Chew nology and Browning with a focus on the Washington Association of Achievement Award for exemplary profes- biotechnology. Criminal Defense Lawyers. sionalism and outstanding accomplishment This award is for "distinguished service from the State Bar of Texas Asian Pacific Jonathan E. Retsky has been elected to the highest traditions of the criminal Interest Section. Hu is deputy chief, Civil to the position of corporate vice pres- defense bar." Division, with the U.S. Attorney’s Office for ident and director of patent operations at the Southern District of Texas. He is a found- Motorola, Inc. Monica Wiseman Latin, a partner ing member of the Asian Pacific Interest with Carrington, Coleman, Sloman & Blu- Section and currently serves as a commis- menthal in Dallas, was named the Out- sioner on the Texas Access to Justice 1990 standing Young Lawyer of Dallas for 2004 Commission and as a director and executive Brian Hail was recently named a Super by the Dallas Association of Young Law- committee member of Lone Star Legal Aid. Lawyer by Texas Monthly and one of yers. She was also named a Best Lawyers the Best Lawyers Under 40 in Dallas by Under 40 in Dallas by D Magazine in Karen Patton Seymour, chief of the D Magazine. He also recently became 2004 and a Texas Super Lawyer by Texas criminal division in the U.S. attorney’s board-certified in civil trial law by the Monthly in 2003. Her practice is concen- office in New York City, was lead prose- Texas Board of Legal Specialization. trated in the areas of business and cutor in the Martha Stewart trial. The He and his wife, Dr. Stacey Hail, are employment litigation. prosecution took place between January the proud parents of Alexander Brian, and March 2004. born on January 2, 2004. Hail is a partner at the Dallas law firm Godwin Gruber, 1994 where he specializes in commercial and Warigia Bowman is a third-year 1987 employment litigation. doctoral student in public policy at the Sharon Reuler of the Dallas law firm John F. Kennedy School of Government of SettlePou has joined the American Andres Villareal joined American at Harvard University. College of Real Estate Lawyers. Reuler Health and Life Insurance Company in its was honored with the Weatherbie Work- legal department on March 15, 2004. He David M. Genender has horse Award at the State Bar’s 2004 is associate general counsel for the Fort been recognized by his peers Advanced Real Estate Law Course in Worth–based company, which is a sub- as among the Best Lawyers July 2004. sidiary of Citigroup. Under 40 in Dallas in the May

Winter 2005 UTLAW 53 50x55_ClassNotes 11/1/04 3:20 PM Page 54

S 2004 issue of D Magazine. This is his Gilchrist, where he practices immigra- most 2004 Rising Stars of any law

E second appearance on the list. tion law. Brian and Deena Brodsgaard school, with 26 percent of the recipients

T Graham, ’94, reside in Austin and have graduating from UT Law.

O Shelton M. Vaughan and his wife, two children.

N Yone Vaughan, are happy to announce the Robert E. Kinney has opened his own arrival of a new baby boy, Lucas Collins, Ann Perry O’Connell, felony prosecu- legal recruiting practice after two years S on June 29, 2004. Lucas joins big sister, tor with the Travis County D.A.’s office, of managing the Texas, Arizona, and S Ashley, and big brother, James. was named Texas child abuse prosecutor South Central operations of a large legal A

L of the year by the Children’s Advocacy recruiting firm.

C Bradley Arant Rose & White Centers of Texas for 2003. She was also has named Laura Parchman named 2003 child abuse prosecutor of Rachel Matteo-Boehm was named a Washburn a partner in the the year for Travis County by the Travis partner at Piper Rudnick in San Francisco. firm’s Birmingham, Alabama, County Children’s Advocacy Center. Her practice is concentrated in media law office. She is a member of the Corporate and intellectual property counseling and Practice Group. Her practice covers a Shannon Ratliff, of the Aus- litigation. Before attending law school, she broad variety of corporate issues, with a tin office of Bracewell & Pat- was a reporter for the metropolitan sec- focus on public companies and compli- terson, has been recognized by tion of the Dallas Morning News. ance with federal and state securities laws. the firm as a rising star for 2004. Washburn’s work in the area of mergers Ratliff’s practice focuses on lobbying. William Prescott Mills Schwind and acquisitions includes experience in has been elected a partner in the bank- buying and selling companies, corporate Thomas M. Tomlinson was elected ing, finance, and major projects practice divisions, and asset sales. partner in the Houston firm of Bracewell group of Baker & McKenzie in Houston. & Patterson, where he concentrates on complex financial transactions in the Morris L. Sheats II was named part- 1995 energy sector. ner in the Fort Worth office of Thompson Victor Alcorta III was named partner in & Knight. Sheats is a member of the firm’s the Austin office of Thompson & Knight. Major Susan L. Turley was named staff trial practice group, where he focuses on Alcorta is the leader of the firm’s govern- judge advocate at Gunter Air Force Base in commercial litigation. His expertise also ment relations and public policy practice Montgomery, Alabama, in January 2004. includes defending claims concerning group, where he focuses his practice on She oversees the operations of an eight- premises and products liability. representing clients before governmental person legal office supporting the Standard agencies and the state legislature, and Systems Group, which handles the acquisi- counseling clients on campaign-finance tion and sustainment of Air Force–wide 1997 regulations under state and federal law. information technology systems. Roberto Anaya-Moreno was appointed undersecretary of public attention Allyson Childs was named the director Hunter E. Webb has joined Hoffman, and normativity of the Ministry of Public of student programs at The University of Warnick & D’Allesandro in Albany, New Function of Mexico on May 1, 2003. Texas School of Law. Childs will act as a York, as a patent attorney. He was previ- counselor and advocate for students and ously a general practice attorney special- Mirut P. Dalal has been promoted to will work with Professor David Sokolow, izing in bankruptcy at the Law Offices of partner with McAndrews, Held & Malloy director of student life. Childs worked for Ed L. Laughlin in Temple, Texas. in Chicago. Dalal has more than six years’ the U.S. Securities and Exchange Com- experience writing patents in such di- mission in Washington, D.C., and the verse areas as video compression, wire- Australian Stock Exchange in Sydney, 1996 less telecommunications, computer soft- Australia, before returning to Austin. Michael A. Blake has re- ware and hardware, fiber optics, and bio- cently started his own patent medical devices. Douglas A. Daniels was elected part- law practice in West Hartford, ner in the Houston firm of Bracewell & Connecticut. He can be reached Jen (Gray) Moss and her husband, Patterson, where he has significant ex- at www.blake-ip.com. Brian Moss, ’98, welcomed a daugh- perience in complex commercial litigation. ter, Emeline, into their family on February Michelle Cheng and Laurie 17, 2004. Emeline joined big brother, Will, Barbara Garcia was appointed associate Higginbotham, ’99, both who turned two in June. Moss reports that municipal court judge with the City of Austin with Whitehurst, Harkness, Will has accepted Emeline with open arms in February 2004. She lives in Austin with Ozmun & Brees in Austin were and lots of slobbery kisses. her husband, Steven De Leon, and their two named Texas Rising Stars Super Lawyers daughters, Leticia and Elizandra. by Texas Monthly magazine in the July Charlotte Rasche, with the 2004 issue. Texas Rising Stars consist of Houston office of Bracewell & Brian Graham was promoted to share- the top 2.5 percent of up-and-coming Patterson, has been recog- holder at the Austin office of Jenkens & Texas attorneys. UT Law produced the nized by the firm as a rising

54 UTLAW Winter 2005 50x55_ClassNotes 11/1/04 3:20 PM Page 55 C star for 2004. Rasche’s practice focuses Jeffrey Engerman of Santa Monica has Umari (bankruptcy associate at Andrews L on banking and financial issues. left his former firm to start his own prac- & Kurth in Houston), and Jason Ross A tice prosecuting class-action pension ben- (white-collar criminal defense lawyer at S Jay E. Ray has joined the Plano office efit and 401(k) cases on behalf of plan par- McManemin & Smith in Dallas) served as S of Moseley Martens as a participating ticipants. He also serves as the vice presi- members of their wedding party. Numer- associate. dent of the National Center for Retirement ous other Longhorn lawyers from the N Benefits in Northbrook, Illinois. Class of 2000 also attended the wedding O celebration. T 1998 Aisha Nawaz Hagen, for- E Bill Childs has been named merly of Thompson Coburn in Sean Price Rasberry has joined Pircher, S to the faculty at the Western St. Louis, Missouri, has joined Nichols & Meeks as a litigation associate. New England College School Winstead Sechrest & Minick He is based in the firm’s Los Angeles office. of Law. Childs brings to the as an associate in Austin. Before joining Pircher, Nichols & Meeks, faculty extensive experience in mass tort, Rasberry was a litigation associate for patent, commercial, and other litigation, Lars Hagen, formerly of the Office of Harrington, Fox, Dubrow & Canter, a real including trial, discovery, appellate, and the Attorney General of Missouri, has estate law firm in Los Angeles. motions practice. Most recently, he was joined the General Civil Litigation Division an associate with Williams and Connolly of the Office of the Attorney General of Patrick Ryan spent the past four years in Washington, D.C. Childs’ legal writings Texas in Austin. in Europe, where he supervised the down- include “The Intersection of Peremptory sizing of two telecommunications compa- Challenges: Challenges for Cause and Laurie Higginbotham, along nies. He married Wendy McCallum in Harmless Error,” which appeared in the with Michelle Cheng, ’96, 2002 and returned to university, where American Journal of Criminal Law, and both with Whitehurst, Hark- he received a Master of Laws (MBL-HSG) “The Implementation of FDA Determina- ness, Ozmun & Brees in Aus- from the Universität St. Gallen (Swit- tions in Litigation—Why Do We Defer to tin, were named Texas Rising Stars Super zerland) and a Ph.D. from the Katholieke the PTO but Not to the FDA?” published Lawyers by Texas Monthly magazine in Universiteit Leuven (Belgium). His disser- in the Minnesota Intellectual Property the July 2004 issue. tation was an interdisciplinary project Review in spring 2004. involving the law, economics, and regula- Steven Runner has been appointed tory policy of wireless frequency alloca- Monica Marie Jacobs, of counsel to Exxon Mobil Qatar, Inc., an tion in the United States and Europe. In Bracewell & Patterson in affiliate of Exxon Mobil Corporation the summer of 2004 Patrick started his Austin, has been recognized located in Doha, State of Qatar. He is own law firm, PSR Law Firm, in Denver, by the firm as a rising star for responsible for providing legal support Colorado (see www.ryanlegal.net). 2004. Jacobs’ practice focuses on envi- for sales of liquefied natural gas to Asia, ronmental and land use. Europe, and North America. Major Rachel VanLandingham is now on active duty with the U.S. Air Brian Moss and his wife Jen (Gray) Stephanie Perin Slobin, Force as the chief recruiter for the U.S. Moss, ’97, welcomed a daughter, Eme- of Bracewell & Patterson in Air Force JAG Corps. line, into their family on February 17, Houston, has been recognized 2004. Emeline joined big brother, Will, by the firm as a rising star for who turned two in June. 2004. Her practice focuses on labor and 2001 employment issues. James D. Hornfischer, author of The Last Stand of the Tin Can Sailors: The 1999 Jacqueline Watson has joined the im- Extraordinary World War II Story of the U.S. Brian Beckcom has formed migration firm of Hines & Leigh in Austin. Navy’s Finest Hour, will be honored by the a law firm in Houston with Naval Order of the United States with the Vuk Vujasinovic. Vujasinovic 2004 Samuel Eliot Morison Award for Naval & Beckcom focuses its prac- 2000 Literature. The prestigious writing prize— tice on plaintiffs’ personal injury and Siobhan E. Fitzpatrick and Christo- past recipients include David McCullough, wrongful-death matters, with a special pher Kratovil, both of Dallas, were mar- Tom Clancy, Stephen Coonts, and former emphasis on offshore injuries, com- ried on March 13, 2004, in Fort Worth. secretary of the navy John F. Lehman—is mercial trucking accidents, and oil field Fitzpatrick continues to practice corpo- awarded to an American author “who by his accidents. rate law with an emphasis on securities published writings has made a substantial work at Locke, Liddell & Sapp in Dallas. contribution to the preservation of the his- Bradley Benoit, of Bracewell Kratovil practices appellate litigation with tory and traditions of the United States & Patterson in Houston, has Hughes & Luce in Dallas. Three other Navy.” The award was given to Hornfischer been recognized by the firm as members of the Class of 2000, Soumit in a ceremony at the Racquet and Tennis a rising star for 2004. His prac- Roy (in-house intellectual property lawyer Club in New York City on November 8, 2004. tice focuses on business litigation. at Texas Instruments in Dallas), Basil Published in February 2004 by Bantam

Winter 2005 UTLAW 55 56x61_JumpColumns 11/1/04 3:22 PM Page 56

C L A S S N O T E S Forbath Books, a division of Random House, The Last Wagner Stand of the Tin Can Sailors is Hornfischer’s first book—and the first book in sixty years to [ CONTINUED FROM PAGE 21 ] censorship or [ CONTINUED FROM PAGE 25 ] also meant the tell the full story of the Battle of Samar, where exclusion of models, studies, and other erosion of broad working-class support a squadron of small U.S. ships heroically scientific inputs used in government for social rights. Social rights talk fell upset a much larger Japanese battleship task decision-making. By contrast, industry- into disuse. And the New Deal’s institu- force on October 25, 1944, thereby sparing produced research is effectively ex- tional legacy became a great affirmative General Douglas MacArthur’s Philippines empted from the act. action program for white Americans. invasion force from disaster. A literary agent Finally, a number of disparate regu- In the 1960s, the doors of social re- and former book editor, Hornfischer lives with latory programs provide regulated par- form opened once more, and this time, his wife and three children in Austin, Texas. ties with additional privacy protections of course, it was African Americans who on the limited information they are pushed them open. Because the limited Dana Davis Paul is pleased to announce required by law to produce. Trade- system of social provision and labor the birth of her son, Caden James, on Nov- secret or confidential business informa- rights bequeathed by the New Deal had ember 4, 2003. tion protections, for example, provide failed most African Americans, public firms with a powerful vehicle for impos- assistance stood as the primary federal ing costly and sometimes unjustified protection against poverty for inner-city 2002 barriers to information about the po- blacks, and many of the new “anti-pover- Angela (McGee) Abney and Mitchell tential harms of their products or activ- ty” programs of the 1960s were targeted Abney were married at the Lady Bird John- ities. Under several statutes, this trade- at minorities. Many civil rights and labor son Wildflower Center in Austin on June secret claim can be asserted without sub- leaders tried to craft a broader agenda, 7, 2003. Serving in the wedding party were stantiation, and the information is clas- including jobs, housing, and health care fellow law students and friends Danielle sified (whether it deserves the protec- as rights of all Americans. But the mass Greco, ’02, Stephanie Fisch, ’02, and Julie tion or not) until a member of the pub- constituencies and organizations for Carter, ’02. Angela, formerly an associate lic requests it under the Freedom of such an agenda weren’t there. with Bracewell & Patterson in Houston, Information Act. Even if the informa- The lack of broad political support also recently joined the Austin office of tion is ultimately disclosed, there are no for the more costly social rights, includ- Martin, Disiere, Jefferson & Wisdom as sanctions for an unjustified trade-secret ing the right to decent work that was at an associate. Her practice will focus prima- claim. Not surprisingly, studies reveal the heart of Roosevelt’s vision, explains rily on civil litigation and first-party insur- that firms classify large amounts of why welfare was the terrain on which ance defense. information relevant to public health poor people’s advocates fought their and environmental protection as trade- War on Poverty. It also explains why Sean W. O’Donnell has joined Husch & secret protected, often without basis. they, like civil rights advocates, so often Eppenberger as an associate attorney in the One facility even went so far as to claim turned to the courts in their battles. firm’s General Business Litigation Practice a firm address as protected trade-secret Indeed, Jim Crow supplied the first Group. Before joining Husch, he served as information. cases in which the Supreme Court rec- judicial clerk for the Honorable Harry Lee These cumulative legal provisions ognized a limited constitutional duty to Hudspeth, ’58, of the U.S. District Court for the serve to perpetuate a state of near-igno- lift some of the handicaps of poverty. Western District of Texas. O’Donnell practices rance about health and environmental Thus, in 1966, the Court held that a in Husch & Eppenberger’s Jefferson City, protection and immunize regulated person’s poverty could not stand as a Missouri, office. parties from contributing much-needed barrier to voting and that therefore the information about their products and South’s poll taxes were unconstitution- activities. In order to correct this legal al. Likewise, appeals from trials in Jim 2003 failure, laws and regulatory require- Crow courthouses dramatized how Adam Flick is working as special counsel ments need to be amended in ways poor, lawyerless (and black) defendants at the Dallas IRS office. that penalize regulated actors when could not enjoy equal justice, prompt- they conceal adverse information or ing the Court in 1963 to announce the Andrew D. Graham has joined Jackson inappropriately attack damaging public states’ constitutional obligation to pro- Walker in Dallas, as an associate in the research and reward actors for produc- vide counsel for indigent defendants Litigation Section. ing needed information. While this will in criminal cases. But voting and access require an enormous effort by regula- to the courts already had constitu- Michelle Smith joined Lloyd Gosselink in tors and even Congress, until current, tional moorings, and neither one is a 2003 and practices in the areas of water, counterproductive legal approaches are social right like the right to adequate environmental, and administrative law. She corrected, ignorance about environ- welfare provision. is a member of the firm’s water practice mental protection will prevail. Far from a right, however, welfare, group, assisting clients with various permit- until the 1960s, had been treated by the ting and enforcement issues related to Wendy Wagner is the Joe A. Worsham Cen- nation’s lawmakers and courts as public water supply and water quality. tennial Professor of Law. charity—precisely not a right. So when

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the federal judiciary set about trans- “brute need” occasioned by public forming welfare into a right, it was assistance that fell below subsistence Dzienkowski behaving as though the Constitution levels. Was there no constitutional and Peroni actually did include parts of Roosevelt’s minimum in respect of a bare subsis- Second Bill. This process first unfolded tence? Or, in a neighboring area of [ CONTINUED FROM PAGE 27 ] may also have in hundreds of statutory construction poor people’s advocacy, no constitu- conflicts in timing given the specific cases that transformed a federal grant- tional minimum in respect of educa- intra-firm arrangements that they may in-aid to the states, to be administered tion? The Court answered no, reason- have for vesting and distribution of the as meanly as state and local officials saw ing that choices about the allocation of shares. Thus, the advice and judgment fit, into a no-strings and no-stigmas public money for welfare, education, given to the client may be colored by national right to welfare. Federal pub- and other social goods were not ones the lawyers’ personal financial goals. lic assistance had been crafted in the for the federal judiciary to make, nor A clear example of how the equity 1930s to allow states to apply their own were courts well suited to judge what investment affects the lawyer’s judg- standards of “moral character” and should count as minimally adequate ment involves the client’s negotiation “suitability” for assistance, and during education or subsistence. These judi- with venture capitalists in drafting the the intervening decades Congress had cial concerns about democratic ac- venture capital term sheet. Because done nothing to disavow and much to countability, separation of powers, and the law firm in many cases acquires reaffirm this tradition. Yet in 1968 the institutional limitations are serious preferred stock along with the venture Court read the Social Security Act as ones. But they are no basis for saying capitalists, at the same price and terms, though it embodied a congressional that the Constitution safeguards no the law firm’s interest is identically intent to provide for every needy family. social rights. Limits on what courts aligned with the interest of the venture The Court behaved as if the U.S. Con- can or should do don’t tell us what capitalists in these negotiations with stitution, like many others, contained a the Constitution means, or what obli- the client. The law firm desires every- “directive principle,” instructing courts gations it imposes on other branches thing that the venture capitalists desire. to construe social legislation in light and levels of government. The Con- Thus, when the venture capitalists of a governmental duty to provide a stitution has many requirements that demand a low valuation, a big liquida- basic subsistence for all citizens. And courts can’t enforce, or can enforce tion preference, aggressive anti-dilu- it made this social rights approach only modestly, indirectly, and not to tion adjustments, conversion rights, explicit in later equal protection and the hilt. Social rights may be one of rigid protective provisions, and voting due-process cases, declaring that wel- them, as the Court itself came close to rights, these issues benefit the law firm fare was not only a “statutory entitle- acknowledging. as well as the venture capitalists. These ment” as deserving of due-process safe- FDR’s logic remains compelling. provisions also weaken the current guards as traditional property rights, An ill-fed, ill-clad, uneducated, jobless, management’s control of the compa- but also a means of bringing with- and shelterless American can’t partici- ny. Consequently, the alignment of the in reach of the poor “opportunities to pate on even a roughly equal footing law firm’s interest with that of the ven- participate in the life of the communi- in the political community or in the ture capitalists presents a glaring con- ty.” “Public assistance,” said the Court, world of work and opportunity. Life flict of interest when the law firm weaving social rights, in Rooseveltian itself, a measure of health and vigor, acquires preferred stock in the same fashion, into the Constitution’s Pre- presentable clothes, a decent liveli- transaction in which it is representing amble, was “not mere charity, but a hood, shelter not only from the ele- the client in negotiation with venture means to ‘promote the general Wel- ments but also from the onslaughts of capitalists. This is a fundamental con- fare, and secure the Blessings of Liberty social and psychological debilitation— flict of interest that cannot be validly to ourselves and our Posterity.’” The these are rock-bottom prerequisites consented to by the client unless the federal courts used equal-protection of political equality, even more basic client has the requisite expertise and scrutiny of administrative and statutory than education, and certainly more so knowledge regarding negotiation of the exclusions and due-process scrutiny of than the niceties of apportionment and venture capital term sheet. termination procedures to compel wel- ballot access on which so much schol- A second example involves the law fare authorities to enlarge the circle of arly and judicial labor has been lav- firm’s role in complying with the dis- eligible poor Americans. These strate- ished since Roosevelt’s day. It is a closure requirements under state law gies resemble the ways many constitu- shame that the Court no longer will or the federal securities laws. A law firm tional courts around the world have set remind our lawmakers that, whatever with an interest in the client may down- about providing a measure of judicial the judiciary’s distinct limitations, the play adverse items that should be more protection to social provision for the nation is obliged to bring social rights fully disclosed in the public offering poor and vulnerable. out of constitutional exile. documents. As we will discuss later, this But with the spate of appointments impairs the lawyer’s gatekeeper duties by President Nixon in the mid-1970s, William E. Forbath holds the Lloyd M. Bent- to the legal system and the client under the Court cut short most of these con- sen Chair in Law and is a professor in UT’s the securities laws. The lawyer’s obliga- stitutional developments. It refused to history department. He is one of the nation’s tion to the client and the legal system find any constitutional redress for the leading legal and constitutional historians. should be to advise full compliance

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with the law, but strict compliance may founders to the venture capitalists, cial interests are enhanced if the initial in fact lead to a reduction in the value which, in turn, creates a “shifting” con- offering price is low and the stock runs of the law firm’s equity investment. The flict-of-interest problem. It is difficult up in value in the first days of trading. argument that lawyer equity invest- to believe that a law firm with an equi- Furthermore, since IPOs on average ments more closely align the interests ty investment could remain as counsel tend to underperform with respect to of the client and the lawyer overlooks to the company and provide inde- comparable firms in the equity market the fact that it is the entity itself, not pendent and competent legal advice in during their first year of issue, the the start-up entrepreneurs and venture this situation. lawyer who receives stock in payment capitalists, that is the client deserving A fourth example of a conflict aris- for legal services in an IPO has a finan- of the lawyer’s protection. es when the client, through its founders, cial incentive to sell the stock as soon as A third type of conflict arises when has misled all of the investors, includ- he may do so under the securities laws. the client experiences financial dif- ing the law firm. When the law firm However, this may harm the lawyer’s ficulties and the venture capitalists discovers the “fraud,” both of the alter- relationship with the issuer client, who exercise their contractual and market natives available to the firm pose ethi- may be upset that the lawyer wants to power to strong-arm the founders into cal dilemmas. On the one hand, the sell its stock so soon after the initial positions that place the current man- law firm could continue to represent public offering. It may also create a agement at risk. If the economic viabil- the corporation and keep its discovery conflict between the lawyer and the ity of the client is uncertain, the ven- quiet until it sells its shares on the client concerning when favorable infor- ture capitalists may propose that they open market, thereby violating the fed- mation should be publicly released by will fund an additional round of pre- eral securities laws. On the other hand, the issuer—the issuer client may have ferred stock financing only at a sub- it could find itself withdrawing from sound business or legal reasons for stantial devaluation that dilutes the the representation and leading the delaying the release of the information, founder’s common stock interests. The lawsuit against the former client in an but the lawyer may pressure the client to interests of the common stockholders attempt to recover its share of funds. release the information to enhance the and the preferred stockholders are Even though the client is culpable in value of the stock before sale. adverse. Moreover, given that the law this situation, the law firm’s invest- A lawyer who holds equity in a firms in many of these cases have taken ment causes the firm to turn into a client focuses on an exit strategy— preferred stock equity, their interests plaintiff against the client. This is a deciding when she should sell her are directly adverse to the interests of troublesome development that would equity interest in the client. This the common stockholders. The law not arise if the firm did not own the observation completes the analogy firms may owe duties to their former equity interest. between the lawyer and the venture clients—the founders who are now in A final example involves the incen- capitalist. Both seek to maximize the the position of being forced out of the tives of a lawyer who holds equity in a return on their investment. Both have company. This situation also may raise client. The lawyer who receives stock in competing demands for their capital. significant “who is the client” issues, as the issuer has a greater direct interest The law firm entered the arrangement it may be difficult to identify the best in the success of the offering and, thus, to represent the founding entrepre- avenue for the entity client. Perhaps, “has an interest in seeing the stock neurs in their dream of taking a com- in a down round financing, the com- price climb in the immediate after- pany public. The founders and the mon stockholders, the preferred stock- market (either as a result of optimistic venture capitalists often have inconsis- holders, and even the board of direc- statements in the prospectus or of tent goals for the entity. An indepen- tors should each have their own lawyers underpricing by the underwriters).” dent lawyer would be far more likely to representing them in the negotiations. The compensation arrangement in represent the interests of the client In some cases, the venture capitalists which a lawyer for an issuer in an IPO without the impairment of judgment insist on removing the founders from receives stock as payment for the legal that occurs when the law firm aligns the board of directors and from man- services raises at least two additional itself with the venture capitalists. In agement of the company. In such situ- potential conflict-of-interest problems many of these cases, the lawyer will not ations, a law firm with financial inter- vis-à-vis the lawyer and the issuer client. clearly disclose to the founders the ests closely aligned with the venture Underwriters tend to significantly shift in motivation resulting from the capitalists would have a difficult time underprice the initial offering price lawyer’s pecuniary interests. And when offering independent legal advice to of stock in an IPO in order to create law firms own capital in many differ- the management of the corporation, the potential for a large run-up in the ent clients, the motivations truly mir- the entity client of the law firm. With price of the stock on the first day of ror the venture capital model. The the downturn in equity markets, the trading. The issuer looks to its counsel founders who control a corporation power shifted from entrepreneurs to to assist in negotiating with the under- may find themselves directly in con- venture capitalists, and law firms work- writer to limit the amount of the under- flict with their lawyers as well as their ing in this area were under consider- pricing. However, if the lawyer is paid venture capitalists. able pressure to keep the venture capi- in stock priced at the initial public Some commentators have stated talists on board. One could refer to offering price, the lawyer has a conflict that these problems “do not appear to this as the shifting of interests from the with the client, since the lawyer’s finan- be any more significant than . . . in the

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contingent fee setting.” On a general providing the client with the opinion firm’s desire to stay on the good side level, this argument is appealing. A that is acceptable to such parties. One of the venture capitalists may have lawyer invests time in a client’s business of the important roles of an attorney is an effect on the representation of the and is rewarded when the markets to certify to such parties the legality client. Furthermore, large law firms react to the value of the business model and respectability of a corporate client’s sometimes represent the venture capi- created in part by the lawyer’s work. past or future conduct. Accordingly, talists on other matters at various other But a more careful examination of this the attorney’s reputation for integrity times, thus complicating the decision analogy shows its flaws. In litigation, the and independence is a key asset and on whether to continue to represent a contingent fee is applied to monies an important component of the attor- failing client. received in settlement or through a ney’s reputational capital. The future conflict-of-interest prob- jury verdict. Once finality sets in, the Under the general rules of ethics, a lem raises several possibilities. Either lawyer receives the contingent fee, lawyer who accepts an equity interest in the law firm will need to obtain the and in the vast majority of cases there the subject matter of the representa- consent of the clients or try to go for- is no ongoing relationship regarding tion should disclose several other risks ward without consent. Obtaining con- the subject matter of the litigation. relating to the continued representa- sent from all of the affected parties is a Furthermore, the details of the litigation of the entity to the client or clients very difficult process because of the tion example have been worked out before accepting the interest. A lawyer disclosure that is needed to make the through decades of practice, and the who has an interest in the business deal consent informed. In many instances, lawyer’s conduct occurs in a setting may automatically be foreclosed from the law firm and its clients cannot eas- before a tribunal with significant pro- representing the parties in many ily disclose all of their legal positions or cedural and substantive rules. Con- actions arising out of the business ven- business plans without suffering signif- tingent fees in the nonlitigation setting ture because of a conflict of interest. icant harm. If the firm decides to go for- have been more innovative, but in the Thus, the acceptance of an interest in ward in all of the representations with- vast majority of instances, the lawyer the venture gives the lawyer a financial out obtaining consent, it has failed to does not own an interest in the client’s stake in the enterprise, which, in turn, follow the requirements of the conflict- business activities. It is the ownership of would preclude many future represen- of-interest rules and has decided to an interest in the client and the ongo- tations. This risk must be disclosed to pursue a perilous ethical course. ing representation that in a sense make the client, and the lawyer could face a Alternatively, the firm may seek to the lawyer part counselor and part very difficult situation if a suit later withdraw from one of the clients. client-owner of the venture. In the vast develops against the former client. Some commentators have complained majority of contingent fee arrange- Apart from conflicts created between that lawyers in the Silicon Valley often ments, the client is in complete control the law firm’s interests and the client’s “dump” their clients for another cur- of the lawyer’s continued involvement. interests, a firm equity investment in a rent client. Those now former clients By contrast, in the equity-investment-in- client is likely to accentuate conflicts are likely to seek redress through dis- client situation, the lawyer is in com- with other current and former clients qualification motions or malpractice plete control of when he chooses to of the firm. When a law firm owns actions against the law firm. Although divest himself of the ownership interest interests in one or more clients, the this “hot potato” issue in conflicts has in the client. The client does not pos- conflicts that arise among the clients been debated significantly in the litiga- sess information about the lawyer’s who may be competing generally or tion context, a lawyer dropping one goals and desires regarding the deci- specifically with each other seem client (like a hot potato) for another sion to retain or dispose of the equity extremely complex and difficult to client in the nonlitigation context also interest. In fact, the law firm may have manage. The fine line between con- poses some troubling questions. Could many opportunities to sell out, and nections, relationships, and conflicts the law firm have stayed in the repre- these timing issues are unlikely to be seems difficult to balance. The lawyers sentation had it not taken equity completely congruent with the inter- may have lost faith in the business investments in the client? What is the ests of the client. Thus, in the nonliti- model of the client and may decline to harm to the client from the law firm’s gation representation, a divergence of make the introductions of the client to withdrawal? And, should the firm con- interest is more likely than in the con- the venture capitalists, as promised at sider withdrawing from all of the tingent fee litigation setting. the time of engagement. In such a affected representations? At this point, Additionally, equity-based compen- case, the lawyers do not want to taint one must question whether lawyers sation arrangements may harm the their reputations in the venture capital qua lawyers should engage in non-law- client by creating or enhancing the community and harm their credibility related behavior that has a significant perception that the lawyer’s indepen- in the representation of other start-up impact on their independent judg- dence of professional judgment is clients. Obviously, the law firms seek to ment for all of their clients. impaired. This, in turn, will under- pick the clients who are the winners in mine the credibility of the lawyer’s the marketplace. And, given that the John Dzienkowski is the John S. Redditt legal opinion in the eyes of third par- law firms have ongoing representations Professor in State and Local Government ties or government regulatory agen- of other clients who are seeking capital Law. Robert Peroni is the Parker C. Fielder cies, thus preventing the lawyer from from the same venture capitalists, the Regents Professor in Law.

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Liability fears have also cropped up In all six countries, public officials Black, Cheffins, during the past few years because some can seek sanctions against directors for insurers have threatened to rescind breach of legislative obligations. In and Klausner D&O coverage on the grounds of appli- practice, however, efforts to prosecute cation fraud, alleging that company outside directors of public companies [ CONTINUED FROM PAGE 29 ] ultimately bear management supplied false financial are rare. One recent exception: In 2003 the cost of high insurance premiums, statements when purchasing insurance. German prosecutors brought criminal but so far have not objected. By and large, however, these insurers charges against two members of the The bottom line is that only an un- have ultimately negotiated reduced cov- Mannesmann supervisory board based likely convergence of conditions can erage limits rather than walking away on allegations that executive bonuses lead to outside directors’ facing out-of- entirely. Meanwhile, insurers are now the board awarded after Mannesmann pocket liability: (1) significant evidence offering noncancelable policies that agreed to be acquired by Vodafone were of director culpability; (2) an insolvent protect outside directors against future improper. The prosecution was unsuc- company; (3) inadequate D&O insur- claims of application fraud. cessful, but at press time the prosecu- ance, either because the insurer can tors were contemplating an appeal. plausibly deny coverage or because dam- DIFFERENT COUNTRIES, In our cross-border study, we did ages greatly exceed the policy limits; and encounter isolated instances where (4) one or preferably several outside SAME CONCLUSION outside directors personally paid dam- directors who are seriously wealthy and FOR DIRECTOR LIABILITY OUTSIDE THE ages or a financial penalty. Still, two thus constitute sufficiently attractive law- United States, the legal terrain differs trends should ensure that the risk of suit targets to offset the costs and risks of considerably from country to country. out-of-pocket liability remains small. taking a case to trial. Without this sort of The bottom line, however, is the same: One is expanded use of D&O insur- “perfect storm,” outside directors have there is only a remote chance that out- ance, with growing numbers of com- little reason to fear that they will have to side directors of public companies will panies purchasing policies and nego- pay personally as a result of litigation. pay anything out of pocket. Our study tiating higher coverage limits. The of three common-law countries—Aus- other is legislation that responds to tralia, Britain, and Canada—and three the instances of out-of-pocket liability ARE THINGS CHANGING? civil-law jurisdictions—France, Ger- risk by improving director protection. WE DON’T THINK SO. THE SARBANES-OXLEY many, and Japan—found that litigation Japan offers a striking example: a Act of 2002 is one source of concern, against outside directors is rare and couple of high profile cases against since it imposes additional duties on out-of-pocket liability is very rare, inside directors led to a 2002 reform, outside directors, especially audit com- though not entirely absent. which lets companies limit outside mittee members. Sarbanes-Oxley, how- In these six countries, a common directors’ legal damages to two years’ ever, does not create new ways for share- theme is that procedural factors do compensation (perhaps US $80,000 holders to sue. Moreover, failure to ful- much to insulate outside directors from to $100,000). This is an amount low fill the new obligations will constitute lawsuits. For instance, for a breach of enough to ensure that, even if there carelessness or perhaps disclosure in- duty under corporate law, usually only are several outside directors who can fractions, not self-dealing. Thus, suits the company itself can sue and share- potentially be sued, hardly anyone is against directors are likely to be handled holders have much weaker rights, com- likely to do so. much as they have been to this point. pared to the United States, to sue on a A recent ruling in an ongoing case company’s behalf. Procedural factors against directors of the Walt Disney also discourage securities law claims IS THIS GOOD POLICY? Company, based on allegations of con- against directors. In the United States, OUTSIDE DIRECTORS’ NEARLY COMPLETE IN- scious inattention to a rich severance almost all securities suits are brought as sulation from personal liability for con- package awarded to former Disney class actions, on behalf of thousands of duct short of actual self-dealing raises president Michael Ovitz, has also raised shareholders. A U.S.-style class action is an important question: Is this good pol- concerns about liability under corpo- impractical in most civil-law countries, icy? We believe that it probably is. rate law. But this case was decided on a including France, Germany, and Japan. To begin with, outside directors preliminary motion, where the judge In Australia, Britain, and some Canadian have a number of reasons to do their was legally required to assume that the provinces, securities class actions are jobs diligently. Many own the compa- plaintiffs’ characterization of the facts permitted, but “loser pays” rules, under ny’s shares or hold stock options; these was true. The directors’ story, which is which plaintiffs must reimburse the holdings can sometimes be a signifi- likely to create some shades of gray, has directors’ legal costs if the directors are cant fraction of a director’s net worth. yet to be heard. Moreover, even if the found not liable, discourage the com- Directors are also professionals who are case proceeds to trial and the directors mon U.S. strategy of suing all plausible motivated by prevailing norms of prop- lose, any damages should be covered by defendants. Even where a company is er boardroom behavior. Moreover, most Disney’s D&O insurance.5 insolvent and cannot pay, plaintiffs will be keen to preserve and enhance

5. One of us (Black) was briefly retained as an expert often ignore directors and sue only audi- their reputations for business acumen. witness on the Disney side of this lawsuit. tors and other professional advisors. Mismanagement or scandals occurring

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on their watch can harm their reputations, even if no lawsuit results. The Berman Innocence potential harm to reputation likely increases if a suit results in a sizeable [ CONTINUED FROM PAGE 31 ] and whether [ CONTINUED FROM PAGE 41 ] documents, in- settlement, even without out-of-pocket fruits of an unwarned statement are vestigation, and class discussion is part liability. The former outside directors themselves admissible. I have argued at of the teaching. It’s a longer, more rig- of Enron and Tyco, for example, have length elsewhere (but will here only orous way of learning, but it is the way not paid a dime to settle lawsuits but assert) that such questions can be real lawyers learn,” Allison notes. have been publicly shamed nonethe- resolved more satisfactorily when doc- “It’s an important distinction be- less. Lastly, directors will be eager to trine is analyzed into separate opera- cause there are lots of cases that merit avoid the time and aggravation that a tive-proposition and decision-rule com- a reversal or retrial for these reasons. lawsuit entails. ponents. The Court has divided in a But that’s not what we’re looking for. From a policy perspective, a signifi- series of cases over the scope of Con- When we go into court we want to prove cant risk of out-of-pocket liability would gress’s power under section 5 of the our client didn’t commit the crime,” also impose large costs. Good candidates, Fourteenth Amendment to enforce Sheppard says. especially those with significant wealth, that amendment’s substantive guaran- That’s not an easy job, but it be- would no doubt regularly decline board tees. That question turns on whether comes easier when the cause is reward- seats—more than they reportedly do the scope of a challenged statute is ing, says Preston Findlay, a clinic stu- today. A shift toward personal liability “congruent and proportional” to a judi- dent who aspires to be a public defend- would also cause boardroom fees to rise cially recognized constitutional viola- er. “I can’t think of anything more re- as directors demanded compensation for tion. Were the Court to appreciate that warding than giving an innocent pris- bearing the additional risk. This greater doctrine consists of operative propo- oner his or her life back,” he says. compensation might in turn make out- sitions and decision rules, however, it While freeing an innocent person side directors hesitate to “rock the boat” would be driven to acknowledge that from prison is the ultimate reward, the in a way that could cost them their federal legislation must be congruent publicity generated by an exoneration appointments. Greater liability might and proportional not to the doctrine case also has the potential to bring also lead directors to act defensively and full stop but only to that part of the about changes in the criminal justice sys- reject sensible business gambles for fear doctrine that represents a constitution- tem. “When it hits, the news is all over,” of the consequences if things went badly. al operative proposition. And where a Allison says, noting that the Ochoa case Paradoxically, then, greater out-of-pock- decision rule effectively underenforces he worked on was covered worldwide in et liability risk could lead to less inde- its operative proposition, the net result the press. “The cases that result in exon- pendence and worse governance. We do is that Congress should have broader eration are so startling that they tear at not claim that directors’ incentives are enforcement power than the Court’s people’s hearts. It is the unthinkable.” always sufficient to induce proper vigi- current approach allows. Sheppard says his hope for the clinic lance. Scandals will surely continue to I don’t mean to make extravagant is that it will serve as a real-world re- emerge to highlight directors’ failings. claims for this particular take on the source for anyone who has ever been But if most directors are reasonably vigi- taxonomic project. The distinction be- convicted of a crime he or she didn’t lant already, and if greater personal lia- tween judicial determinations of consti- commit. “My hope for the students is that bility would have important adverse con- tutional meaning and judicially crafted they leave the class with an understand- sequences, the current system might not instructions for how courts should ing of how our legal system actually func- be far from optimal. decide whether given constitutional tions and how innocent people can be meaning has been complied with can- convicted despite all the procedural pro- Bernard Black is the Hayden W. Head not eliminate substantive disagree- tections built into the system,” he says. Regents Chair for Faculty Excellence and ments in the shaping of constitutional The clinic instructors can’t promise Professor of Law, University of Texas Law law. A large role for subjective judg- their students that they will exonerate an School, and Professor of Finance, McCombs ment is inescapable. But if the distinc- inmate during their law school careers. School of Business, University of Texas. tion between decision rules and opera- But Allison, Dawson, and Sheppard do Tel: 1-512-471-4632; e-mail: bblack@law. tive propositions is sound, then em- guarantee that the more cases the clinic utexas.edu. Brian Cheffins is the S. J. Ber- bracing it will not just mirror our reali- investigates, the closer they come to that win Professor of Corporate Law, Faculty of ty more faithfully; it will have conse- goal. And they are certain that during Law, Cambridge University, 10 West Road, quences. That’s how conceptual frame- this process students will learn how to Cambridge, United Kingdom, CB3 9DZ. works work. analyze and investigate not just crimi- Tel: 44-0-1223-330084; e-mail: brc21@ nal cases but any case. Remaining ever cam.ac.uk. Michael Klausner is the Nancy Mitchell Berman works in both constitution- hopeful, Dawson adds, “And if we man- and Charles Munger Professor of Business al law and criminal law, and is especially age to spring somebody—that will be and Professor of Law, Stanford Law School, interested in the conceptual structures of glorious and we will celebrate.” Stanford, California, USA 94305. Tel: these domains. Portions of this essay are 1-650-723-6433; fax: 1-650-725-0253; drawn from recent articles in the Virginia Laura Castro Trognitz,’97, is communica- e-mail: [email protected]. Law Review and the Iowa Law Review. tions strategy manager for the Law School.

Winter 2005 UTLAW 61 62x63_InMemoriam 11/1/04 3:24 PM Page 62

WINTER 2005 MEMORIAM

T H R O U G H S E P T E MBER 2004 father’s partner in the law firm of Wier 1979. He was also a founding member and Wier in San Antonio. He later worked of Baker, Sharman and Wise, now for the USAA Claims Division. He was a Thompson and Knight. In 1977 he was Professor Corwin W. John- founding member of both the Federal In- honored as a Distinguished Alumnus of son, a professor at the Law School surance Council and the National Insur- UT and was a recipient of the Pro Bene for almost six decades and a ance Crime Bureau. Meritis Award from the College of Lib- national expert on property law and eral Arts. He endowed the Rex G. Baker water law, died Thursday, July 29, 2004, at 86. For a memorial trib- The Honorable Reynaldo G. Chair in Natural Resources Law at the ute, see page 17. Garza, '39, died September 14, 2004. Law School. He was the country’s first Mexican American federal judge when he was Waggoner Carr, ’47, died February Maurice Randolph Bullock, ’36, appointed by President John F. Ken- 25, 2004, at 85. Carr, a Democrat, died August 15, 2004. He was a partner nedy to the Southern District Court in spent two years as the Lubbock assis- with Silliman and Bullock, county attor- 1961. In 1979, President Jimmy Carter tant district attorney, three years as a ney of Pecos County, and founded Bul- appointed Garza to the U.S. Court of Lubbock County attorney, and ten years lock, Kerr and Scott and Bullock, Scott Appeals for the Fifth Circuit. He was the as a state representative. From 1957 to and Neisig. He was president of the first Mexican American to sit on that 1961, he was the Speaker of the Texas State Bar of Texas (1955–56), first bench. He assumed senior status in House of Representatives. In 1963 he chairman of the State Securities Board 1982 and continued to work until a began a four-year term as the attorney of Texas (1957–66), director of the month before his death. Two elemen- general of Texas. In 1971 he was tried American Judicature Society (1957–61), tary schools, one in Brownsville and on federal fraud and conspiracy charges and trustee of the Southwestern Legal another in McAllen, bear his name. He for the Sharpstown stock fraud scandal Foundation (1969–88). In 1993 an En- has been honored as a Distinguished but was acquitted. In 1977 he wrote a dowed Presidential Scholarship was Alumnus by both the UT Ex-Students memoir, Waggoner Carr, Not Guilty. He created in honor of Maurice Bullock at Association (1989) and the UT Law Alum- worked with the firm of DeLeon, Bog- the Law School. ni Association (1994). gins & Icenogle from the late 1970s until his death. Elliott G. Flowers, ’37, died April 13, Gilbert Morgan Denman, Jr., ’42, 2004, at 91. He worked for McCarthy Oil died May 16, 2004, at 83. He donated his Paul G. Davidson, ’47, died February and Gas Corporation and Allied Chemical extensive collection of Greek and Roman 26, 2004. Corporation. artifacts to the San Antonio Museum of Art. He was a third-generation member of Joseph Francis Turpen, Jr., ’48, Armond G. Schwartz, ’38, of Hal- Denman, Franklin & Denman, founded by died May 2, 2004. Most of his practice lettsville, died June 2, 2004. As an his grandfather, Texas Supreme Court was related to the oil and gas industry. undergraduate at UT, he was an unde- justice Leroy G. Denman. He was a member of the Exxon Mobil feated debater, winning the NCAA na- Retiree Club of Lake Houston. tional competition. He was editor of the Alfred Schulman, ’42, died April 23, Texas Law Review and a member of the 2004, at 84. He joined the Law Firm of Harold H. Young, Jr., ’49, died April Order of the Coif. He practiced with his Chris Dixie, ’36, and later established a 28, 2003. For 5 years he was a partner family law firm, Schwartz & Schwartz, practice with J. Edwin Smith, ’37, and in Ragsdale and Young in Dallas. For 20 for 63 years. Jack Rawitscher, ’57. years he worked for Standard Oil, Pan American Petroleum Company, and Amoco Jackson N. Townsend, Jr., ’38, died Rex Gavin Baker, ’47, died March Oil Corporation. For 22 years he worked March 14, 2004, at 89. 21, 2004, at 83. He served as president for El Paso Natural Gas Company. and chairman of the Southwestern Max Harris Wier, Jr., ’38, died Savings and Loan Association, later Harry Loftis, ’50, died December 9, March 6, 2004, at 89. He became his known as Bank United, from 1952 to 2003, at 83. He was an assistant county

62 UTLAW Winter 2005 62x63_InMemoriam 11/1/04 3:24 PM Page 63 IN MEMORIAM IN attorney, a criminal attorney, and was The Honorable Jerome Anthony joined FirstCity Bancorporation. At First- appointed by Governor Allan Shivers, Dellana, ’57, died March 9, 2004, at City, he was an executive vice president ’33, as Smith County’s first criminal dis- 71. After law school, he was an assistant and corporate secretary. trict attorney. He served as county judge county attorney under Judge Tom from 1958 to 1965. He was then execu- Blackwell, ’47. When Blackwell was pro- John Richard Lock, ’67, died Jan- tive vice president of Tyler Bank and Trust moted to County Court at Law, he was uary 21, 2004, at 62. He earned his C.P.A. Company until returning to his law prac- appointed Travis County attorney. He while practicing with Small, Craig, and tice in 1970. was elected justice of the peace and Werkenthin. He then formed Lock and then judge of County Court at Law #1. In Virr, P.C. He was board-certified in estate John T. Simmons, ’51, died April 1974 he was elected judge of the 201st planning and probate law as well as tax 19, 2004, at 82. He was a commercial District Court and presided there for 21 law. Despite 11 years of AMLS, he prac- real estate attorney at Prudential for years. In addition, he served in the U.S. ticed law until his death and was pho- 34 years. Army Reserves in the First Judge Advo- tographed by UTLAW for the Spring cate General detachment. 2003 issue. Arthur Burch “A.B.”Waldron,Jr., ’51, died April 28, 2004, at 75. He co- Richard Curry Giles, Sr., ’57, died John C. Nabors, ’67, died June 14, founded Southwest Land Title Company, June 23, 2004. He worked with Allstate 2004. During law school, he was an asso- now North American Title Company, Insurance Company for forty years in San ciate editor of the Texas Law Review, a where he served as chairman and presi- Antonio, Houston, and Dallas. member of Chancellors, and a member of dent. He retired in 1997 after 52 years of the Order of the Coif. Nabors was a senior service in the land title industry. He was Audrey Elizabeth Poulos, ’59, died partner at the law firm of Gardere Wynne recognized as an honorary member of May 4, 2004, at 79. She graduated from Sewell in Dallas, where he had practiced the Texas Land Title Association for sus- the Law School as one of only two since 1989. tained and meritorious service, the high- women in her class. She returned to est award presented by the association. Texarkana to practice with Raffaelli and Willie Phillips, ’69, died July 22, Keeney. In 1963 she established the 2004. He was a 34-year member of the Herschel Bernard, ’52, died April 28, Law Office of Audrey E. Poulos. She was State Bar of Texas and became munici- 2004 at 77. He practiced law in San appointed the first female municipal pal court judge in Irving in January Antonio for more than fifty years. court judge for the City of Texarkana. 2004. She served in that capacity for 29 years Roger Finnelle Robinson, ’52, died and in 1994 returned to her law and Stafford Hutchinson, ’71, died Feb- January 6, 2004, at 74. He was a partner mediation practice. ruary 28, 2004, at 58. He worked as an in Robinson, Strawn and Robinson in attorney with the SEC and later as a Raymondville from 1953 until its dissolu- David Caldwell, ’65, died April 29, law clerk to Justice Tom C. Clark, ’22, tion, and then was a solo practitioner 2004, at 66. He served in the U.S. Navy U.S. Supreme Court. From 1974 to 1997, until his death. He was also an attorney until 1965 when he joined his father’s he worked for the Department of Jus- for the Willacy County Navigation District law practice and oil business in Dallas. tice as an assistant U.S. attorney for and Willacy County Drainage Districts the Northern District of Texas, Dallas Number One and Number Two. Thomas Nendell Crowell, ’65, Division. died March 31, 2004, at 63. He joined Delmar Lee Sroufe, ’53, died April the Houston law firm of Hutcheson Dennis Ray Garza, ’86, died March 17, 2004. He was an intellectual prop- and Grundy, where he served as part- 29, 2004, at 42. He worked as a senior erty attorney with Baker & Botts for 25 ner for 26 years. He was president of attorney and deputy division chief for years. Near retirement age, he joined the Houston Estate and Financial the General Litigation Division under the firm Bard, Groves and Sroufe. He Forum. state attorney general Jim Mattox. In then cofounded Sroufe and Payne. 1997 he became a litigator for American Dr. Charles William Bailey, Sr., Airlines. He served as president of Marvin F. Sentell, ’55, died April ’66, a surgeon and general practition- Austin LULAC Council 650 and South 15, 2003, at 73. er who became President Lyndon B. Austin Mexican American Democrats. Johnson’s friend and personal physi- Thano Dameris, ’56, died February cian, died February 17, 2004, at 86. He Arvind Jewett Sudarshan, ’86, 12, 2004, at 72. He practiced in Hous- was a fellow of the American College died June 13, 2004. During law school, ton until 1966, when he was appointed of Legal Medicine. He practiced med- he was a member of the Texas Law by President Lyndon B. Johnson as icine in Austin until his retirement Review. He was admitted to practice assistant to the director of the FDIC. in 1985. law in Texas, Hawaii, and the U.S. Su- After completion of his term, he re- preme Court. turned to Houston, where he practiced Phillip Lynn Sampson, ’66, died law and owned and operated several April 21, 2004, at 66. He practiced at Mary Rene Miko Ryan, ’02, died local banks. Vinson & Elkins until 1972, when he March 31, 2004, at 32.

Winter 2005 UTLAW 63 64_ClosingArgument 11/1/04 3:28 PM Page 64

ARGUMENT “Listen to the Book” CLOSING

gets up earliest catches the most worms, BY MICHAEL WIDENER but in book-collecting the prizes fall I ENCOURAGE AND HELP BOOK COLLEC- to birds who know worms when they tors, especially those who are UT see them.” Law alumni, because book collecting The Internet has revolutionized the is good for libraries and libraries are market in rare and out-of-print books. good for book collectors. Collectors Never has information on books been so use libraries, keep the book market plentiful, and the Internet book healthy, and contribute to libraries with market will continue to grow. their knowledge, their advice, their col- The largest online database, lections, and their pocketbooks. Libraries Advanced Book Ex- in the United States have a change, reports 12,000 long tradition of encour- dealers offering 50 mil- aging book collecting. lion books. There have Since private collections been a number of results. often end up in libraries, In terms of supply, the it’s in our best interests Internet has shown that as librarians that these some books previously collections be well built. thought rare are actually quite On a personal level, I love common, while other books have book collecting, and I want to share proven to be surprisingly rare. In terms of the fun. Book collecting at its best is a prices, there is considerable downward pressure on social activity, based on a web of relationships with books in the lower price ranges, and comparing prices book dealers, librarians, and fellow collectors. is vastly easier than it was 10 years ago. What is book collecting? For me, it is more than mere- However, the huge online inventory is deceiving. For ly accumulating books. It is gathering books that have most dealers, large portions of their stock are still not something in common. Collections of a particular author online. For books over $1,000, catalogs and word of or about a certain subject or activity are popular. Some mouth continue to be important marketing channels. As collections are built around a literary genre or physical a result, avid collectors of all kinds still need to form aspects of the book, such as bindings or illustrations. I’ve good relationships with dealers in their specialties. Book thought it would be fun to collect books by curmudgeons. fairs are a great way to meet dealers and to learn about The possibilities are endless, and discovering your own books. Major antiquarian book fairs are held annually in collecting theme is a big part of the fun. New York, Boston, and California, and there are a num- Whatever that theme is, the cardinal rule is to collect ber of regional fairs, including the ones in Austin. books that are interesting to you. “Listen to the book,” My “Introduction to Book Collecting” Web page, at writes Colin Franklin in Book Collecting as One of the Fine http://tarlton.law.utexas.edu/rare/bookcollecting.html, Arts. “I believe in those moments of identity as revelations has links to dozens of resources for book collectors, of a collector’s truth . . . reasons appear later threading including the major databases, specialist dealers in rare these beads together. Without scheme or shrewdness, a law books in the United States and Europe, and refer- subject is born.” I follow this rule in building the Tarlton ence sources on book collecting and related topics. Law Library’s Rare Book Collection. We do not collect I’d love to hear from our alumni book collectors, be- rare books. We collect interesting books that are valuable ginning or advanced. I’m happy to share what I know, and for the study of law and legal culture. eager to learn. Call me at (512) 471-7263, or e-mail me at By following your own interests, you are more likely [email protected], and let’s talk books! to find books that are underpriced because they aren’t appreciated by others. Over the long term, your collec- Michael Widener is the head of Special Collections, Jamail tion will have more intrinsic value, and perhaps even Center for Legal Research. This essay has been excerpted from the monetary value. One of the great bookmen of modern “Introduction to Book Collecting” seminar that the author pre- times, Michael Sadlier, said, “In Nature the bird who sented at the 2004 Alumni Reunion.

64 UTLAW Winter 2005 ILLUSTRATION BY ALETHA ST. ROMAIN COV4_Recruit 4/19/04 1:10 AM Page 1

RECRUIT UT.

RECRUIT THE BEST.

CAREER S ERVICES OFFICE

For more information about recruiting opportunities, please contact: David Montoya, Assistant Dean for Career Services v The University of Texas School of Law 727 East Dean Keeton Street v Austin, Texas 78705 v (512) 232-1150 v Fax (512) 471-6790 www.utexas.edu/law/career 12980-TX-UT Law Ad 4c 11/2/04 12:04 PM Page 1

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