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This Book is brought to you for free and open access by the Law School Publications at NDLScholarship. It has been accepted for inclusion in Notre Dame Lawyer by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. SUMMER 2002 I Dear Friends,

THIS IS MY LAST ISSUE as editor of NOTRE DAME LAWYER.On July 15, 2002, I began a new position in Notre Dame's College of Engineering as director of women's engineering programs and academic advisor. In this new program, I have the chance to use the administrative skills I've developed over six years as director of law school relations, combined with my undergraduate and graduate education in engineering, to work with women engineering intents and students to encourage them to pursue study and careers in engineering. I leave NDLS with mixed emotions, of course. While I'm looking forward to the challenges of my new job, I will truly miss the day-to-day contact with you, our alumni and friends. When I first started working at NDLS, I had no idea FALL 2002 CALENDAR OF EVENTS what to expect on a daily basis. While writing and editing this magazine formed the primary focus of my work, my days and months quickly filled as we worked together to develop activi- August 26, 2002 October II, 2002 ties that gave us the chance to support NDLS in meaningful Fallsemester classes begin Notre Dame LawAssociation Fall Meeting ways: working with groups such as the Notre Dame Law Association and the Law School Advisory Council, helping September 6, 2002 October 12, 2002 classes organize reunions and keeping in touch with the many Fallon-campus interviewing begins ND vs. Pittsburgh individuals who serve the Law School in innumerable ways. What has made these past few years at NDLS most September 6.8, 2002 October 15, 2002 enjoyable and personally satisfying has been how so many of NDLS Class of 1967 - 35th Reunion Fallon-campus interviewing concludes you have consistently responded to our call to help in what- Weekend ever ways we asked - whether giving money to support our October 19·27,2002 students in service, helping a student or fellow Notre Dame September 7, 2002 Fallsemester break lawyer network during a job search, encouraging accepted stu- ND vs. Purdue dents to enroll at NDLS and in so many other ways. My col- November 2, 2002 leagues at other law schools always seemed to envy me when I September 13·15,2002 Continuing Legal Education Program told them how wonderfully giving you all are - how, whenev- NDLS Class of 1972 - 30th Reunion ND vs. Boston College er asked, you always said "yes;' and then you asked what else Weekend November 21.22) 2002 you could do! You truly are different. I'm proud that, in some September 14, 2002 Law School Advisory Council Meeting small way, I may have helped to build a stronger community of ND vs. Michigan Notre Dame lawyers around the world during my time at NDLS Class of 1992 - 10th Reunion November 23,2002 NDLS. Celebration Continuing Legal Education Program I'm confident that you will give my successor this same ND vs. Rutgers support and, in the interim before that individual is identified, September 15, 2002 that you will support the Law School administration in what- Nomination Deadline for NDLA 2003 For more information on Law School or ever ways you are asked. Elections University events, please contact the Law Thank you all for six wonderful years! School Relations Office. October 5,2002 Yours in Notre Dame, Continuing Legal Education Program ND vs. Stanford

Cathy Pieronek, Editor

P.S. If you happen to be visiting campus, I'm just one building over to the east - in 257 Fitzpatrick Hall of Engineering. Please don't hesitate to stop by. My e-mail address remains the same, [email protected], but my phone number has changed to (574) 631-4385. N o li R IE ID A M\ IL A w y IE R

Summer 2 a a 2 LAW SCHOO FOCUS

Current Scholarship 4

The Place or Economics in the Law orTorts The Moral Foundations or Private Law The Moral Foundations or Contract Law

FROM THE DEAN 33 HLSA Presents 2002 Olivarez Award LAW IN THE NEWS 34 29th Annual Black Law Students of 14 Enron, Accounring and Lawyers Notre Dame Alumni Weekend 21 - Rule of Law: Future Church-State NDLS 3Ls Honored as Assistanr Battles Loom Rectors 22 News from the Center for Civil and WLFAuction Proceeds Set New Human Rights Records 23 FACULTY NOTES 35 PILF Dunk Tank Supports Service 24 Professor Emeritus Broden Honored Students Elect Leaders for 2002-03 Editor: Cathy Pieronek Law Library Grows with Addition of 36 IRISHLAW SPORTS REPORT Civil and Human Rights Librarian 38 ALUMNI NOTES Contributing Authors: Roger Jacobs Recognized for Service In Memoriam Matthew J. Barrett, Anthony 25 New Faculty for 2002-03 41 2002 Graduate to Clerk for Bellia Jr., Richard W J. 26 Visiting Faculty for 2002-03 Chief Justice Garnett, Alan Gunn, Michele 27 New Adjuncts Join Faculty 42 New Additions Johnson, Paul Mattingly, 28 Matthew J. Barrett Promoted to 43 Class Reunions for 2003 Patricia A. O'Hara, Julissa Professor 44 NOTRE DAME LAW ASSOCIATION Robles, Charles W Roboski Joseph W. Thomas Promoted to A Message from the NDLA Presidenr Librarian 45 Congratulations to Election Winners Principal Photographer: Matt Cashore Juan Mendez Featured in Book NDLA Honors Alumni with 2002 29 ADMINISTRATOR AND NDLA Awards Notre Dame Lawyer is STAFF NOTES 46 NDLA Supports Student Service published for the alumni and 30 STUDENT NOTES 47 LAW SCHOOL BRIEFS friends of the University of Law School Graduation Highlights News from ,Law School Admissions Notre Dame Law School, 32 Graduation Honors Notre Dame, Indiana. SBA and Students Honored for Community Service Address correspondence to: Notre Dame Lawyer 102 Law School Notre Dame, Indiana 46556 Telephone (574) 631-6891 Fax (574) 631-9299

Summer 2002 IF R o M T H E ID E A N

his issue of NOTRE DAMELAWYERillustrates the wide range of scholarship being produced by our faculty in our efforts to contribute actively to the intellectual dialogue within the legal community, as well as to enrich the discussions in our classrooms. The topics cov- ered are impressive in both scope and content and feature members of our faculty at different stages of their careers. Professor Alan Gunn, John N. Matthews Professor of Law and senior member of our faculty, joined us in 1989 after teaching at Washington University-St. Louis and Cornell. A scholar in torts and taxation, Professor Gunns essay surveys the late-20th-century literature that relies on economic theory to analyze the law of torts. Against this backdrop, he discusses a number of intriguing 19th-century judicial decisions and well-known 20th-century decisions. In the end, he offers a telling insight not merely about the law of torts, but also about the entire legal process. Professor A.J. Bellia '94 J.D., one of the younger members of our faculty, also sweeps broadly for material to enrich his essay, surveying the basic principles underlying contract law in order to emphasize the centrality of moral concepts. A student in one of the last classes taught by our beloved late colleague, Professor Ed Murphy, A.J. recalls Ed's regular reminders of the importance of remembering the moral foundations of all law. The remaining two contributions from our faculty are taken, quite literally, from roday's headlines. Professor Matt Barrett '82, '85 J.D., who was promoted to full professor this past spring, offers his "top 10 accounting lessons for lawyers:' Co-author with Harvard professor David Herwitz of the leading casebook on accounting for lawyers, Matt's compendium of advice is important for anyone hoping to grapple with the recent scandals in accounting and corporate law. Like A.J., Matt concludes with a reminder that there should be a broad focus to the practice of law, one that includes adherence to the highest standards of ethical conduct. Finally, Professor Rick Garnett, another of the younger members of our faculty, reprints his op-ed piece from the • 3

WALLSTREETJOURNALcomparing the lessons from the Pledge of Allegiance case and the school vouchers decision. Taken together, these faculty pieces form a mosaic illustrating the distinctive way in which Notre Dame Law School seeks to examine legal questions with a special emphasis on moral and ethical values. By the time that this issue reaches you, we will have begun another academic year. The academic cycle is always marked by comings and goings. We welcome a highly talented first-year class selected from among one of our largest applicant pools ever. Two new faculty members also join our ranks. Bob Jones '80 assumes leadership of the Notre Dame Legal Aid Clinic. A summa cum laude graduate of the Program of Liberal Studies, Bob worked two years as a community organizer in Chicago before enrolling at Harvard Law School. There he served as managing editor of the HARVARDLAWREVIEWand president of Students for Public Interest Law. Following a federal district court clerkship, he worked for 17 years at Business and Professional People for the Public Interest, a public interest law firm in Chicago, while also teaching at a number of Chicago law schools. Professor Amy Coney Barrett '97 J.D. also returns home to Notre Dame. After graduating first in her class from our Law School, Amy clerked for Judge Laurence Silberman on the Court of Appeals for the D.C. Circuit and for Justice Antonin Scalia on the United States Supreme Court. Following two years of practice with a Washington, D.C., law firm, she received an Olin Fellowship and spent last year as a visiting faculty member at George Washington University Law School. Amy will teach Civil Procedure and Evidence. We look forward to the vision and experience that Bob will bring to our clinic, and to the contributions that Amy will make as a teacher and scholar. With very mixed emotions, we bid farewell to Professor Steve Smith. Steve enriched our community during his four years with us as a wonderful teacher, profound scholar and generous colleague. We will miss him greatly but share his excitement about the new opportunities that await him as a faculty member at the University of San Diego Law School. Finally, Cathy Pieronek, director of law school relations, leaves us to accept a new position in the College of Engineering as director of women's engineering programs. It is little exaggeration to say that this magazine is Cathy's creation. During her six years with us, she built the magazine into a professional publication, coordinated alumni relations activities for the Notre Dame Law Association and played a vital role in helping to establish alumni-funded summer service fellowships. Her new position allows her to return to her undergraduate home in the College of Engineering. We are happy that she will be quite literally right next door. As I begin my fourth year as dean, I do so with energy, excitement and a deep sense of grati- tude for the collaborative efforts that have contributed to our progress in recent years. We have seen continued growth in our library, which is now very competitive with our peers. We have made dramatic strides in our ability to offer financial aid, allowing us to attract highly qualified students interested in our distinct mission. We are in the process of finalizing the details for an educational loan repayment assistance program that we hope to begin before the end of this calendar year for graduates who accept public interest employment. Fund raising for the new building - although not yet complete - is progressing well. All of these advances are in large measure the product of the loyalty and generosity of our alumni and friends. For the part each of you plays in our efforts to offer an academically excellent and distinctively faith-based approach to legal education, I thank you.

Patricia A. O'Hara Joseph A. Matson Dean and Professor of Law • 4

LAW SCHOOL FOCUS more fatal accidents there will be. That's useful information for a legislator deciding how to vote on a no-fault auto-insurance bill. But it has nothing to do with the everyday work of lawyers and judges in tort cases, whom Landes and the others were not addressing. The Place of Similarly, studies have shown that workers' compensation is less effective than torts in deterring workplace acci- Economics in the dents, but more effective than OSHA, which so far as we can tell has no effect on safety at all. Again, useful Law of Torts information for legislators, but not for practicing lawyers. Sometimes the studies show that we don't know whether the system is y text for today is a "Wizard of Id" cartoon. working well or not; there are a couple of ambitious attempts to figure out The king learns that the wizard is trying to what effect medical malpractice cases cross a homing pigeon and a parrot, and the have on medical practices. All we know for sure at this point is that king asks, "What do you expect to achieve by there is a lot of medical malpractice that?" To which the wizard replies, "voice mail!" and a lot in the way of tort damages for that malpractice. Unfortunately, we don't have much of an idea at all of whether the doctors committing most My thesis is that a lot of good have not seriously addressed the ques- of the malpractice are the same ones as work has been wasted or ignored tion of whether, or for what purpose, those paying the damages, though it was useful. because the people doing the work there is some reason to think that they neglected to answer the kings very With part of the literature on eco- are not. This kind of scholarship is good question, "What do you expect to nomics and torts, I have no quarrel. useful to lots of people, but none of it achieve by that?" There is a vast litera- This is the literature on the ways in has, or even claims to have, any effect ture attempting to apply economic the- which the tort system and some of its on how tort cases should come out ory to the law of torts. It started in alternatives affect people's lives. For under our system. 1961, with Calabresi's article on risk instance, a series of studies, beginning The scholarship with which I do distribution in the law of torts, or, if with one by Elisabeth Landes pub- have a quarrel - and this is a large you think a work has to contain calcu- lished in 1982, investigates the effect part of the literature on economics and lus to be real economics, with a 1973 on traffic accidents of replacing part or torts - is that which claims, or just article by John Prather Brown showing all of the tort system for auto accidents assumes, that lawyers and judges that, under ideal conditions, it doesn't with no-fault insurance. Landes should learn the economics of torts so matter whether the law of torts uses looked at no-fault in the United States; that they can devise and apply efficient strict liability or negligence when the later studies have included the more- rules. Perhaps the most sweeping ver- issue is how much in the way of safety extensive no-fault systems of Quebec sion of this claim is Judge Posner's. He precautions will people have an incen- and Australia. Their conclusion is has said, in every edition of his very tive to take. Since then, several books, that, as economic theory would pre- influential book, that the common law including a casebook, and countless dict, the replacement of tort with is efficient, and that the reason it is articles have attempted to apply eco- no-fault increases the number of auto efficient is that common-law judges nomics to tort law. A great deal of this accidents, and the more of the tort have - usually without saying so - work was produced by people who system you replace with no-fault, the tried to make it efficient. "The great • 5

THE WIZARD OF ID

common law fields of property, torts, quantum meruit for the value of the economics people is that the lawyers crimes, and contracts;' he says, "bear work he had done. The court agreed, were protecting their turf. Robert the stamp of economic reasoning:' But in part because a rule denying recovery Cooter said recently that the initial he is far from being alone. Many arti- would encourage employers to make response to economics from many law cles and books either claim that judges life miserable for employees near the professors was to associate economics have adopted particular rules because end of their term in the hope that the with some philosophical idea and then they are efficient, or simply analyze employees would quit and forfeit their to reject economics on the ground that various doctrines to see whether they rights to payment under the contract. the philosophy in question was are efficient or not, without any And (3) a handful of cases involving unsound. This, according to Cooter, express consideration of whether any- intellectual property, such as the right had the advantage of allowing lawyers one would, or should, care. to limit the use of a deceased celebri- to reject economics without taking the The idea that judges routinely ty's name or likeness, in which the trouble to learn it. There's some truth look to economics to help them make evident desirability of having clearly to that, but it's not the whole story. society efficient is nonsense. I can defined property rights seems to have Much of the blame for the chilly count on one hand the number of judi- influenced the courts. That's all I can reception economics got lies with the cial opinions I've read that have think of and it's not much. economists. With very few exceptions, applied economic reasoning to reach The problem here, if I am right, those who practice economic analysis an efficient result. (1) Coffin v. Left is not just that a considerable body of of law have either ignored the question Hand Ditch Co., a 19th-century case scholarship has been produced for an of what use economics might be to involving the question whether water audience that doesn't exist. After all, lawyers or have answered that question taken from a river could be used out- a large part of what academics do is wrong by saying, or implying, that side the watershed, something the write articles that no one will ever economics is useful because knowing English doctrine of riparian rights read. The real problem is that many something about it will enable the would have prohibited. The court said lawyers, understanding very well that courts to devise rules that will encour- it could, because, in an arid state like things like mathematical analyses of age people to behave efficiently. Colorado, it would make no sense to the efficiency of the doctrine of last In a few minutes I'll try to outlaw many useful uses of water. clear chance have nothing to do with convince you that a knowledge of eco- (2) Britten v. Turner, a 19th century their lives, have written off law and nomics can be of use to people who case in which an employee who quit economics as a waste of time. have to resolve torts cases, but first let's before his one-year term of employ- When economics first made itself look briefly at an area of the law that ment was up argued that, although he known in the law schools it met a lot has been greatly improved because of couldn't recover anything on the con- of resistance. The usual explanation economics: antitrust. When I took tract, he should at least recover in for that resistance among law-and- antitrust in law school, we spent a

BY ALAN GUNN JOHN N. MATTHEWS PROFESSOR OF LAW • 6

whole semester reading judicial opin- to try to work in some economics, evidence of subsequent remedial ions without ever considering what it which has been largely absent from the measures in a strict products-liability was about monopolies that might be torts casebooks despite the volumes of case: whether, in other words, the bad or how, if at all, it was possible for writing on the subject in the law phrase "culpable conduct" in the evi- someone to get or keep a monopoly. reviews. And I did find a few opportu- dence code included strict liability. Times have changed. Today, for exam- nities to explain some elementary eco- The California Supreme Court ple, vertical restraints other than price nomics. But so far as the heart of the held that it was not error to admit the are no longer per se illegal, and it's a book - the cases themselves - is evidence of the design change. Its rea- good thing too because, as economists concerned, there is virtually no eco- soning was based on what it saw as the have shown us, vertical restraints can nomics at all. All those books and law purpose of the exclusion: "to avoid benefit consumers and encourage com- review articles - the pioneering work deterring individuals from making petition. It's probably only a matter of of Calabresi and Brown, the reams of improvements or repairs after an acci- time until some vertical price restraints articles on when negligence or strict dent has occurred," The court said are allowed as well; while they can be liability creates better incentives, or on that this argument made no sense in misused, they can also serve valuable whether the doctrines of last clear products-liability cases because goals. Predatory pricing is still illegal, chance or contributory negligence but the courts aren't nearly so willing make economic sense, or on the Coase The contemporary corporate mass as they once were to allow fact finders theorem and the Carroll Towing producer of goods, the normal to make a defendant pay because it Company negligence formula - have products liability defendant, man- charged low prices: The Matsushita case left almost no visible trace on the ufactures tens of thousands of approved of a grant of summary judg- development of the law. This is the units of goods; it is manifestly ment to the defendants in a predatory- literature that seems to me to be mis- unrealistic to suggest that such a pricing case if it was all but inconceiv- guided. But even if I'm right, it doesn't producer will forego [sicJ making able that the defendants could have follow that economics is irrelevant to improvements in its product, and made money by doing what they were the work of common-law courts. I'll risk innumerable additional law- alleged to have done. Matsushita is the use two examples, one fairly obscure, suits and the attendant adverse best opinion Justice Powell ever wrote, the other involving a very-well-known effect upon its public image, sim- and most of it is straight out of law- case, to show why. ply because evidence of adoption and-economics works. Ault v. International Harvester of such improvement may be Antitrust law is a success story for Corp. was a 1974 California products- admitted in an action founded economics, but it is not a story of liability case. The plaintiff was hurt in on strict liability for recovery judges using economic reasoning to the crash of an International Harvester on an injury that preceded the replace inefficient rules with efficient Scout. He claimed that the Scout had improvement. ones. The basic rules of antitrust are crashed because its aluminum gearbox much the same today as they were 30 had failed; International Harvester This is wrong. Without going years ago. The difference is that eco- maintained that the crash was caused into economic theory, it can be shown nomics helps us to understand busi- either by driver error or by the collapse to be wrong by considering the variety ness behavior, and in some cases - of a portion of the highway. The of settings in which manufacturers vertical restraints, some possible plaintiff was allowed to introduce evi- have to decide whether to improve "predatory pricing" cases, and tying - dence that International Harvester had products that may be claimed to be practices that may seem underhanded changed from aluminum gearboxes to defective. If the product clearly is to those who don't understand what gearboxes made of malleable iron after defective, and if the maker expects to they accomplish turn out to be harm- the accident. The California Evidence lose the lawsuits, of course it will less, or even beneficial, when we Code excluded evidence of "subsequent improve the product to cut its losses. understand them. And we won't remedial or precautionary measures" to But some manufacturers may expect to understand them unless we know prove "negligence or culpable conduct:' win those lawsuits, or may not even some economics. So if the plaintiff's case had been expect to be sued, and they may fear But what about torts? A few based on International Harvester's that changing the design would give years ago, I had the opportunity to co- negligence, evidence of the change ammunition to plaintiffs' lawyers who author a torts casebook. I accepted, in could not have come in. The issue was would otherwise have weak cases. part because I thought it would be fun whether this rule of evidence barred That kind of manufacturer has an • 7

incentive either not to make the wrong, and some people are dead now been decided. If the court's economic improvement, or to disguise it: perhaps who would be alive if the case had analysis had been sound, its decision to wait a year or two until a whole new gone the other way. would probably have been right: it kind of transmission was being intro- Ault teaches two important les- would have achieved a good thing - duced, or to replace the whole drive sons. First: a lot of people - both letting highly relevant evidence in, and system, rather than a single compo- law-and-economics people and those so improving the accuracy of fact find- nent. This is said to have been the rea- who think economics is evil - seem ing - at no cost. Economics tells us son the cigarette companies abandoned to think that economic analysis is an that there was a cost, in forgone safety the attempt to design a safer cigarette alternative to other ways of deciding improvements. Unfortunately, it does- in the 1970s: Back then, they were cases: to deciding them on grounds of n't tell us anything about whether that winning all the lawsuits, and they justice, or to following precedent, or cost will be high or low, or whether feared that if they did come up with a perhaps to using natural law in some those costs are outweighed by the safer product, their success in fending form. That's not what's at stake in improvement in accuracy that admit- off litigation would be imperiled. Ault. The problem with that decision ting the evidence provides. I have (Whether this is true or not, it is plau- isn't that the court resolved the issue occasionally heard it said that people sible.) Another possible example: it by following some approach other than are drawn to law and economics has been claimed, and it may be true, economics and should have used eco- because economics offers "right that airbags were introduced in this nomics instead. The problem is that answers" in place of the uncertainty of country much later than in Japan and the court was doing economics, and it the common law. Not in Ault, and Europe because of fears of liability for was doing it badly. The court was probably not anywhere else, either: selling cars without airbags. making a prediction about how people economic analysis typically shows us Here's where economics comes in. would respond to the incentives creat- that cases we thought were easy are in Anyone who has grasped Economics ed by its decision. That's what eco- fact hard. Which, I think, is one of the 101 should recognize instantly that the nomics is: the scientific study of how reasons why some people react so neg- Ault court's analysis of how manufac- incentives will affect behavior. So it's atively to economics: lawyers who see turers would respond to a rule allow- not an "economics vs. justice" issue, it's their task as coming up with ways to ing subsequent improvements into an issue of "good economics vs. bad make people better off may not like evidence was wrong. For one thing, economics:' Second: economics to be shown that well-intentioned the opinion claims that changing man- doesn't tell us how Ault should have proposals that may look good on the ufacturers' incentives will not change their behavior. Technically, it's saying that the manufacturer's demand curve for safety improvements is vertical; and The most basic proposition of there are no vertical demand curves. Another and more basic way to look at microeconomics is that incentives work it is to see that the court goes seriously astray by deciding what "the" manufac- by changing behavior turer would do. There is no such per- at the margin: son as "the" manufacturer: there are a deciding that the "typical" or "average" lot of different manufacturers in a lot of different circumstances, and the fact manufacturer won't change doesn't tell that the one in the court's hypothetical won't respond to a change in the rule us that no manufacturer will chan doesn't mean that no manufacturer will. The most basic proposition of microeconomics is that incentives work by changing behavior at the margin: deciding that the "typical" or "average" manufacturer won't change doesn't tell us that no manufacturer will change. The analysis in Ault was • 8

surface may in fact harm the very those reasons make little sense. - insurance is a very bad buy, espe- people they are supposed to help. One reason he gave:"It is evident cially if they have no dependents, yet My other example is an opinion that the manufacturer can anticipate Justice Traynor makes everyone buy which has had a great effect on the against some hazards and guard his insurance. law: Justice Traynor's concurring opin- against others, as the public cannot:' The kind of insurance you get ion in Escola v. Coca-Cola Bottling Co. of Well, this is true: with respect to some through tort liability is so insanely Fresno. It was just a concurring opin- hazards. With respect to other haz- expensive that people who tried to sell ion in 1944, but it became the law in ards, though, the user of the product is it to customers would go to jaiL For California in 1962 in the Greenman in a much better position to take pre- instance, when Cessna shut down case, and in nearly all other states not cautions, as when someone who has lightplane production because of prod- long after that. According to Justice bought hot coffee decides to open it in uct-liability costs, it estimated that the Traynor, rejecting a vast body of prece- the car and spills it, or when parents cost of insuring against products-liabil- dent, the seller of a product that is let their young children play with ciga- ity claims for a single plane was about defective is liable to a consumer rette lighters even though the kids $70,000 (which is approximately injured because of the defect, even if have previously set the house on fire, $300,000 dollars in current figures). the seller was not negligent - even if or when a drunken driver parks a car You can buy a real insurance policy it was absolutely clear that the seller in the middle of a foggy freeway. that covers losses other than those you was not negligent, as when a retailer Another reason: the manufacturer incur when £lying your Cessna a lot sells a product in a sealed package and is better suited than the consumer to cheaper than that. Apart from cost, the product turns out to be defective. provide insurance to cover the losses this is insurance that pays off in only Now, in Escola itself, holding the defen- that occur when consumers are hurt, a tiny fraction of the cases in which dant liable if the product was defective because the loss is a great misfortune people suffer serious injuries, and, in may have made sense: the majority to the consumer, and the manufacturer most of those cases only after years allowed the case to get to the jury on can spread it around to all of its cus- of litigation, and with much of the res ipsa grounds, which left it to the tomers by charging a higher price. payoff going to the victim's lawyer. jury to decide whether or not to find Well, risk-spreading can be a good Furthermore, the opinion seems to the defendant liable, with no real evi- thing: that's why people buy insurance. assume that sellers who have to pro- dence either way. But the reasons But they don't buy insurance against vide this insurance will simply raise Justice Traynor gave for holding manu- "pain and suffering;' though Justice the price of the product by the amount facturers and other sellers strictly Traynor's rule forces them to buy it of the extra cost. Some elementary liable for product defects went way whenever they buy a product. For economics shows that this can't hap- beyond that situation, and several of some people - especially poor people pen: the price will increase, though by less than the additional cost, and the amount of the good sold will decrease. There's some irony here. What Justices Mosk and Traynor were doing in Ault and Escola was, despite their utter ignorance of the most basic eco- It is fairly clear today that modern nomic principles, precisely what many of the law-and-economics people are at products-liability law has made the world least implicitly advocating: they were trying to devise rules that would create more dangerous than it would otherwise desirable incentives. They failed. It is fairly clear today that modern prod- have been, and it is indisputable that it is ucts-liability law has made the world more dangerous than it would other- regressive: it shifts wealth from poorer wise have been, and it is indisputable that it is regressive: it shifts wealth to wealthier consumers. from poorer to wealthier consumers. When the prices of products that make the world safer increase, people • 9

will buy fewer of them, and their lives Gilowich, there's an interesting Perhaps the watershed here was will be more dangerous. description of an empirical test of the Erie RR. v. Tompkins. If, as many people The extreme case is that in which ability of students in various fields to now think, common-law decisions are products liability drives safety-enhanc- evaluate policy-related claims, such as just state policies, different from legis- ing products off the market. One a mayor's claim that his policies had lation only because they are made by example is Bendectin, a drug for morn- succeeded in reducing crime. Students different people, then federalism ing sickness, withdrawn because of just beginning the study of law, medi- requires the Erie doctrine. Swift v. product-liability claims, though a host cine, chemistry and psychology were Tyson, which Erie overruled, is a deci- of careful studies show that Bendectin tested on their ability to distinguish sion that many modern lawyers find is safe: safer than morning sickness, valid claims of this sort from invalid incomprehensible: for example, one which does kill people, and probably claims, as were people who had stud- civil procedure hornbook describes safer than the drugs doctors now pre- ied these fields for two years. The Swift as a decision that implemented scribe instead, which have not been so study found that people who had stud- Justice Story's views of "policy;' a view extensively tested. Except for the so- ied psychology for two years improved that suggests that the authors of the called "abortion pill;' no drug company quite a bit in this regard; people who hornbook - all well-known legal aca- in the world is now developing any had studied medicine improved some. demics - either never read Swift or drug that can be used by pregnant Studying law or chemistry did nothing misunderstood it badly. women. at all to make people better "policy Is there a better way to look at the And then there are the airplanes: analysts:' law of torts (and, really, all of the com- American lightplanes were the safest in In a review of the first edition of mon law)? Yes: the way in which most the world; when they were killed off Judge Posner's book on law and eco- lawyers saw the law for most of our by Justice Traynor, those who wanted nomics, James Buchanan expressed a history, a way of looking at the law to fly had to buy used planes - some- concern that adding economics to the that is captured in important articles times rebuilt wrecks - or build kits, law school curriculum might encour- by Pat Kelley and Steve Smith. Kelley nearly all of which are harder to fly age lawyers, and eventually judges, to and Smith start with the proposition and more dangerous than the Cessna think that they had the tools to enable that the function of the tort system is 150. them to legislate for us all; a bad thing, to resolve disputes. I suppose all of us Would the courts have done bet- as it is not the job of the judge to legis- were told this sometime during our ter if they had known some basic eco- late. That concern is well founded, but first week of law schooL The usual nomics? Perhaps. But not because a it is far too late to address it by sup- practice, though, is, having said this, to knowledge of economics would have pressing or ignoring economics. The forget about it: in deciding what rules made them more able to legislate intel- idea that courts are devising policies is to apply in resolving those disputes, ligently. The lesson of economics here, deeply ingrained in American law stu- the tendency has been to fall back on and in many other situations, is "I don't dents today. Pat Kelley attributes this policy goals, such as deterrence and know what's efficient, and no one else tendency to Holmes, with considerable compensation. As Smith put it in a in town can tell you either:' The justification: those who think that recent article, "[t1he suggestion that model of judges using economics to common-law judges make policy can tort law exists primarily to resolve dis- devise efficient rules is silly: they can't find lots in Holmes to back them up. putes seems at once prosaic and yet, in do it right. Most judges, and most It is worth noting, though, that the current academic climate, strangely lawyers, are decent, intelligent people. Holmes' views on this were more com- alien:' Kelley and Smith point out that But nothing in their training or experi- plex than those of many of his follow- the implication of the "dispute resolu- ence gives them any particular ability ers. In THE PATH OFTHE LAW, tion" model of torts is that we should to decide what is sound public policy, Holmes pointed out that if judges ask whether the defendant has caused and they have no facilities for conduct- thought more carefully about the an injury to the plaintiff by violating ing even the most basic empirical social consequences of the rules they an established social norm. If the work; without empirical studies, eco- were adopting, they "sometimes would defendant has punched the plaintiff in nomic theory can't answer any ques- hesitate where now they are confident;' the nose, or run a red light and crashed tions to which we don't all know the and, as Robert George pointed out in a into the plaintiff, the answer is "yes:' answers already. recent issue of FIRSTTHINGS, Holmes This system will generally tend In a very useful book, How WE himself was no innovator. to lead to efficient results, because KNOW WHATISN'T So, by Thomas people don't often adopt customs that • 10

In the end, the real lesson of economics enough economics to avoid elementary errors. Economic analysis of law is for tort lawyer is thawolicy-making not an alternative to traditional legal thinking; it is a reason for sticking is hard - too hard to be engaged in by with that kind of system, which has served us well for centuries. the participants in an adversary system. *** I'd like to close by commenting impoverish them. And, if we look at a couple of articles commenting not on on a remark that Richard Epstein once the past several centuries of tort the law itself but on tax scholarship on made. He was talking about the caselaw, that is exactly what we find. that problem, including some of my Hart and Sacks casebook on the legal This approach, the approach of "find- scholarship. These articles draw the process, a book he doesn't think highly ing the law" through asking how same distinction: between internal of, and with good reason: Hart and people are expected to behave and rea- arguments - arguments "of the law" Sacks is an uncritical endorsement of soning by analogy to previous cases, as one of them puts it - and external the view that legislators and judges are gave the common-law countries a legal arguments - arguments "about the engaged in social engineering, and that system that enabled those countries to law:' I was delighted to find myself, the job of the lawyer is to help them flourish economically, socially, and along with another author, used as an along. The book opens with a com- morally. It has served us well, but it example of the "internal" approach, an mercial-law problem involving a ship- is now in the process of being approach said by one of these articles ment of cantaloupes that goes astray scrapped, bit by bit, in favor of a to be representative of the older gener- and spoils. Epstein observed that "the social-engineering project that has ation of scholars, with the external problem with Hart and Sacks is that no hope of succeeding. approach illustrated by the work of the they couldn't think of a more-impor- In the end, the real lesson of people who use economics in analyzing tant social problem than who should economics for the tort lawyer is that tax. pay for the spoiled cantaloupes:' policy-making is hard - too hard to So, it seems, I've been using an At first I thought this a devastat- be engaged in by the participants in an "internal" approach to the tax law for ing blow, but I have come to see that in adversary system. The great value of years, without knowing it. One of this respect, at least, Hart and Sacks economic analysis in tort cases consists Moliere's characters is astonished to had a point: probably a point that they in the humility that it teaches - in learn that he has been speaking prose were not trying consciously to make, the lesson that judges cannot convert all his life without knowing it; I have but a point nevertheless. A legal sys- the tort system into an efficient deter- just had a very similar experience. My tem can deal sensibly with the ques- rent, an effective social-insurance delight is just a little bit tempered by tion of who should pay for the spoiled scheme, or a mix of the two, and that the conclusion of one of the articles, cantaloupes. It cannot deal sensibly if they try, the unintended conse- which says, in the nicest possible way, with questions like "how should manu- quences can be severe. that those whose scholarship takes the facturers design their products." It The approach Kelley and Smith "internal" approach are today consid- cannot tell ophthalmologists when take is one "internal" to the law; an ered fuddy-duddies. I prefer the term they should test for glaucoma, or tug- approach Kelley derives from John "fogies:' boat operators whether their boats Finnis. The difference between this But academic fashions change, should have radios (to take two of sort of "internal" approach and the and so long as law teachers spend most Kelley's least-favorite cases). Hart "external" view of the law that most of their time teaching students how to and Sacks, for all their faults, had an economists take is fundamental, and it do law, some degree of ,internal" legal admirably restrained view of the com- is by no means confined to torts. thinking is bound to remain in legal petence of courts. Economics, properly When I first read Kelley's article, I scholarship except, perhaps, at the understood, teaches that they were noted this point, thought it interesting, "elite" law schools. That scholarship, right about that. and promptly forgot about it. Then, by its very nature, will not concern a few weeks ago, the Southern itself primarily with questions like This article is the speech given by Alan Methodist University law review pub- whether the doctrine of last clear Gunn on the occasion of his inauguration as lished a symposium on the business chance is efficient. But it will, I hope, the John N. Matthews Professor of Law, purpose doctrine in tax law, containing be done by people who have learned the University's oldest endowed chair. • II

THE MORAL FOUNDATIONS OF PRIVATE LAW

What concepts make sense of private law? What explains the theories behind abridged version of which may be found at page 12 of this magazine. His talk the methods by which people, private citizens, order their affairs? These ques- focused on the relationship between the need for contract law"to render cer- tions formed the core of the NDLS Natural Law Institute's annual meeting in tain promises trustworthy, and the trust that otherwise inheres in personal April 2002. With the generous support of the Olin Foundation, five scholars relationships." presented papers on various aspects of private law - including contract, tort James Murphy,a professor at Dartmouth College, addressed "Equality in and property law - and considered the reasons that the legal system enforces Exchange," in counterpoint to Professor Gordley's keynote address. He criti- various agreements or upholds certain rights. cized Professor Gordley's interpretation of views of private law derived from As the keynote speaker,James Gordley, Shannon Cecil Turner Professor of the late scholastics, based primarily on the fact that Professor Gordley did not Jurisprudence at the University of California at Berkeley School of Law,deliv- distinguish between "use value" and "exchange value" in his arguments. ered the keynote lecture, "The Moral Foundations of Private Law:' His engag- Professor Murphy refuted the idea that "justice in exchange requires that the ing lecture considered whether the writers in the Aristotelian tradition performances exchanged be equal in 'value:" NDLS Professor Gerard V. formulated a better view of private law than the current law-and-economics Bradley,who organized the conference, commented that the exchange of ideas theories popular in American law schools today. Professor Gordley believes between Professors Gordley and Murphy was "particularly animated, ... owing "that there is a distinctively to the fact that Professor Murphy criticized Professor Gordley at some points human lifeto be lived,and that in his paper:' there are virtues, and particu- Henry Mather,a professor at the University of South Carolina School of larly virtues of prudence and Law,spoke on "Searching for the Moral Foundations of Contract Law:' He distributive and commutative described the search as "a Sisyphianquest, an uphill effort that is unending and justice, that enable people to never completely successful." Yet he argued that the search should continue, live it:' He commented that "because many of the rules in the positive law of contracts force judges and the current law-and-economics lawyers to make moral judgments, [yet] require the application of some rather view of private law,which vague moral norms" such as an interpretation of the term "good faith." He holds as ultimate values prefer- contended that "natural law theory offers the best approach to take in search- ence satisfaction and economic ing for moral ideas that are efficiency,fails to capture the relevant to contracts;' essence of what it means to be because it forces considera- human. Rather, for the "late tion of teleological purpos- scholastics" of the 17th centu- es, provides general ry,who based their work on principles of justice and an Aristotelian and Thomistic focuses on moral virtues to view of humans,"human happi- enforce in order to achieve ness consists in livinga distinc- the purposes of entering tively human life,a life which realizes, so far as possible, one's potential as a into contracts. human being:' The concluding speaker, As social creatures, one aspect of reaching individual potential requires Scott Fitzgibbon,a professor helping others to realize their potential as well. And achieving this potential at Boston College Law requires not only virtues such as prudence, but also some "external things." In School, addressed "Marriage Professor Gordley's view,"A person should try to acquire what he needs and and the Good of Obligation:' He considered the obligation aspects of mar- to help others to do so:' He distinguished between distributive justice, which riage, and argued for the fundamental good of obligation in marriage. According ensures that each person has the wealth needed to acquire what is needed, and to Professor Bradley,"The audience was quite involved in responding to Scott commutative justice, which ensures that each person obtains what is needed Fitzgibbon's very provocative paper on the marital covenant:' Professor without unfairly diminishing others' share of wealth. Consequently, the legal Bradley commented that the paper was "beautifully written, if not convincing to system should enforce private law as embodied, for example, in contracts and all present:' property rights, because these laws help individuals to acquire what is needed The proceedings of the conference will be available in an upcoming edition to achieve their full potential, while not unfairly depriving others in the process. of the AMERICAJONURNALOFJURISPRUDENaCE publication, of the Notre Dame Four other scholars responded to Professor Gordley's ideas and delivered Law School's Natural Law Institute. For more information, please contact the papers on various aspects of the keynote topic. NDLSAssistant Professor of managing editor, Aniela K. Berreth, Notre Dame Law School, P.O.Box R, Notre LawA.J.Bellia'94 J.D.addressed "Promises, Trust and Contract Law,"an Dame, IN 46556-0780, or [email protected]. • 12

things that an individual may not make a legally enforceable commitment to do - for example, to kill, steal, or unreasonably restrain trade. Why may such commitments not be made? Because we are not free to do The Moral anything we please. The value of a choice lies not in the fact that we have Foundations of made a choice, but in the value of what is chosen. The law may enforce a promise to sell a car, but it will not Contract Law enforce a promise to steal a car. The presupposition that contract law is strictly about enhancing freedom thus has its problems. Something must 11students who Professor Murphy presents a timeless explain why contract law will support entered the Notre reminder that legal education must certain exercises of freedom, but not Dame Law School explore not merely what the law is, but others. There must be higher values between 1958 and also the foundation of moral principles against which we measure exercises of 1991 studied contracts upon which it is built. freedom. James Gordley, who deliv- under the late What are the moral foundations ered this year's Natural Law Lecture Professor Edward J. upon which the Anglo-American law at Notre Dame, spells out these criti- Murphy. Professor of contract is built? There are several cisms in Contract Law in the Aristotelian Murphy was a masterful teacher of theories that attempt to guide us in Tradition, in THE THEORYOF contract law, beloved by his students. determining what the rules of contract CONTRACTLAW(Peter Benson ed. Professor Murphy also taught law should be, each based on different 2001). jurisprudence. Shortly before he died, presuppositions. One theory is the so- A second theory of contract law is he wrote the following in an essay on called "will" theory of contract. This based on "welfare economics;' a branch jurisprudence that stressed the impor- theory argues that contract law should of so-called "law and economics:' tance of identifying the moral founda- serve to enhance the freedom of Welfare economic theorists argue tions of law: autonomous individuals. If it is in the that rules of contract law should be [AJlllegal systems have a common self-interest of an individual to make a designed to maximize preferences in structure. At the apex are the binding commitment, that person society. The claim is that if a person assumptions and basic values, should have the ability to do so. prefers to give something to another as which are, as it were, accepted on Indeed, this theory argues, having the revealed in a promise, the person is faith. From these are derived option to make a binding commitment made better off; otherwise, the person moral norms and ethical princi- makes individuals more free than they would have had another preference. ples, and the law reflects this would be if they did not have the Enforcing contracts is economically morality. For all law involves the option. The iconic work in this efficient because if persons did not imposition of sorneone's morality regard is CHARLESFRIED,CONTRACT believe that assuming obligations upon others. This, I submit, is ASPROMISE:A THEORYOF would make them better off, they how it works in every legal system CONTRACTUALOBLIGATION(1981). would not assume them. This theory and why it is absolutely crucial This theory has been subject to is argued in Louis Kaplow and Steven that the presuppositions of a legal several criticisms. One is that it is Shavell, Fairness v. Welfare, 114 HARV. order be identified.' simply incomplete. There are many L. REv. 961 (2001).

BY ANTHONY J. BELLIA JR. '94 J.D. ASSISTANT PROFESSOR OF LAW • 13

It, too, has been subject to several arise over what the terms of those con- interact, no promises have been made. criticisms. The primary one is that tracts are. We have arranged, perhaps, Is this the way we should think about there is nothing self-evident about the an itinerary of flights on an airline web contract law:' presupposition that the exclusive goal page at a given price, and clicked on a Under welfare economic theories of the legal order should be to "maxi- button labeled, "Purchase Flights" or "I of contract law, enforcement of trans- mize preferences:' Why should prefer- Agree:' What are the terms of this actions arranged by electronic agents ences to kill or enslave merit equal contract:' Terms that were displayed would be justified only if doing so claim to satisfaction as preferences to on pages that we viewed:' Terms on operated to increase aggregate welfare sustain or liberate:' There must be pages that we were instructed to view:' in society. Empirical work would be higher values against which we meas- Terms on pages that we should have necessary to determine what measura- ure individual preferences. Professor viewed:' Terms that we could not have ble effect, if any, enforcement of trans- Gordley has argued these criticisms as seen until after we clicked "I Agree"? actions arranged by electronic agents well. Emerging technologies raise a would have on the preferences of indi- So where does this leave us:' more fundamental question still: What viduals in society. Is this how we In his book NATURALLAWAND is a contract:' Technologies are emerg- should approach the question? NATURALRIGHTS,John Finnis, ing to enable individuals to use elec- Under the theory of contract Biolchini Family Professor of Law at tronic agents to arrange transactions explained by John Finnis, individuals Notre Dame, suggests a third way. We for them. Imagine that, instead of per- are bound to promises in order to pro- should acknowledge up front that all sonally visiting an airline web site and tect their ability to pursue their rea- individual choices and preferences - purchasing a flight, you use an elec- sonable objectives through reliable objectives, if you will - are not enti- tronic agent (a software program) that arrangements. It would seem under tled to equal merit. The law should will visit several airline web sites and this theory that an individual who help individuals to achieve objectives purchase for you a ticket at the best uses an electronic agent to arrange an that are consistent with authentic price within the dates and times that exchange that another may perceive as human good and flourishing. To pur- you have specified. Can electronic obligatory could validly be held bound sue their own reasonable objectives, agents make contracts:' If so, what are to it. For a detailed explanation of Professor Finnis explains, individuals the terms of the contracts they make:' how different theories of contractual must coordinate their actions with Terms that the electronic agent "saw" obligation inform this issue, see others and must cooperate with oth- or "could have seen" if properly Contracting with Electronic Agents, 52 ers. How else in today's society would programmed? EMORY1. J. 1047 (2002). individuals acquire the necessities of Questions such as these admit of Ed Murphy described lawmakers life:' The making of promises is a way no easy answers under common-law as primarily practitioners who exercise that individuals coordinate their activi- paradigms of contract formation. The prudential judgment to adapt to ties with each other. The practice of answers may depend on what we take changing circumstances. But he was promising, however, is an effective to be the moral presuppositions of careful to point out that any exercise form of coordination only if promises contract law. Under a will theory of of prudential judgment to address new are kept. Thus, rendering certain contract, a promise is not thought to circumstances must be consistent with promises enforceable is a necessary be enforceable until it is conveyed. If correct moral presuppositions in order means to enabling individuals to coor- I use an electronic agent to arrange a to be justified. At the Notre Dame dinate reasonable activities with each transaction with an unknown person Law School, we must strive not only to other. who may also be using an electronic teach our students what the law is, bur It is as important today as ever agent, the electronic agents may to provide a foundation for them to that we understand and test the arrange a transaction before either of guide its development in an ever- moral presuppositions of contract law. us is aware of the other's existence. changing world. Technological advances in the way we Is a person bound to a promise before transact business raise fundamental any other person is aware of it? questions of contract law. For exam- Enforcement of transactions arranged 1Edward J. Murphy, The Sign of the ple, what are the terms of a contract:' by electronic agents may not be justi- Cross and Jurisprudence, 69 NOTRE Many of us have made so-called fied under a will theory of contract, DAME1. REV.1285, 1289 (1994). "e-cornmerce" contracts. Questions because at the time electronic agents • 14

LAW IN THE

Enron, Accounting Even if you went to law school so you wouldn't have to deal with numbers or accounting, please read on. and Lawyers I know you're busy and you're tired of reading about Enron, but the corporation's collapse painfully illustrates the importance of financial accounting to all lawyers (and that means YOU!). 1. Where's the beef? operating results. In addition, the cash For years, accounting has been A complete set of financial state- flow statement, possibly the lawyer's called "the language of business." ments includes an income statement, best friend in such situations, also Virtually every lawyer represents busi- a balance sheet, a statement of cash would have alerted a careful reader to nesses, their owners or clients such as flows, a statement of changes in own- problems including the business's creditors and customers. Could you ers' equiry and the accompanying declining profitability. As Enroll's col- effectively practice law in China if you notes. The Enron crisis accelerated lapse demonstrates, a missing financial did not speak, or at least understand, when the company's 2001 third- statement may indicate that the enter- Chinese? Especially after Enron, quarter earnings press release on prise seeks to hide disappointing lawyers cannot competently represent October 16, 2001, provided only an results. Enroll's eventual issuance of clients if they do not grasp certain income statement and not a balance its missing balance sheet and the large basic principles about accounting. sheet, statement of cash flows or state- write-down of shareholders' equity in While accounting rules have ment of changes in shareholders' the balance sheet triggered a loss of become increasingly complex, and few equity. (Remarkably, Enron failed to investor confidence, which caused law students or lawyers receive formal provide a balance sheet in its earnings Enroll's share price to fall, accelerated training in accounting, lawyers can releases dating back to 1996.) In debt repayment obligations and ulti- watch financial statements and related response to questions from analysts, mately led to Enroll's bankruptcy. The disclosures for "red flags:'Although the Enrons management later disclosed Enron scandal illustrates that each facts underlying Enrons collapse con- that Enron recorded a $1.2 billion financial statement offers important tinue to come to light, for now all reduction in shareholders' equity. information necessary to maintain lawyers would do well to consider the Because the income statement does investor and creditor confidence. A following listing of the top 10 account- not reflect this item, without a balance lawyer should ask probing questions ing lessons for lawyers from the scan- sheet or statement of changes in share- any time an enterprise does not pro- dal. (For extra credit, please give holders' equity, investors could not see vide a complete set of financial state- copies of this article to your 10 favorite a complete and accurate picture of ments, plus accompanying notes. lawyers.) Enrons financial condition and

BY MATTHEW J. BARRETT '82, '85 J.D. PROFESSOR OFLAW • 15

year 2000 over 1999, and a 32 percent increase in earnings per share for the 2000 fourth quarter over the 1999 fourth quarter. Buried in the last sec- .. tion of its earnings release, however, the company told a very differenr story. Enron disclosed that EPS for 2000, 2. Old dogs, new tricks. including nonrecurring charges, Generally accepted accounting increased only from $1.10 per share in principles (GAAP) often offer choices 1999 to $1.12 per share in 2000. These in financial accounting treatments. amounts translated to an increase of Although the "consistency principle" only 1.8 percent, compared to the 25 generally requires enterprises to use percent increase Enron reported at the the same accounting principles to beginning of its earnings release. treat the same transactions similarly Next, Enron disclosed that 2000 from year-to-year, this consistency fourth quarter EPS, after nonrecurring requirement does not apply to new charges, totaled $0.05, a decrease of 83.8 business activities. The business com- percent from 1999 fourth quarter, in munity refers to the "rules" governing contrast to the 32 percent increase it the compilation of accounting data 3. Looks aren't everything. reported at the beginning of the into financial statements and the Pro forma reporting can distort an release. Interestingly, earlier in the accompanying notes as GAAP. GAAp, enterprise's financial appearance. In quarter, Enron predicted that it would however, typically allows choices its 2001 third-quarter earnings release, post a fourth quarter EPS of $0.35. among permissible alternatives and Enron reported "recurring" net income Excluding what it called nonrecurring almost always requires estimates and of $393 million. Such pro forma items allowed Enron to exceed those assumptions that affect the amounts reporting, which provides numbers "as expectations. If Enron had included shown in the financial statements, if" certain (often undescribed) assump- the nonrecurring items, its results including the reported amounts of tions apply, does not follow GAAP. would have fallen below that assets, liabilities, revenues and expens- Even a simple analysis of the earnings prediction. es. Especially in today's world, busi- release reveals that Enron actually Second, an enterprise can use pro

ness transactions and practices evolve suffered a $618 million net 1055 under forma reporting to manage earnings. more rapidly than rule-makers can GAAP. By labeling $1.01 billion as Earnings management typically tries to promulgate accounting rules. For sev- "one-time" or "nonrecurring" charges, increase net income (or reduce the size eral reasons, therefore, GAAP does mostly related to investment and of a loss) relative to what the business not provide a set of black-and-white asset write-downs and restructuring would otherwise report under GAAP. rules that produce a single "bottom- charges, the company turned its $618 Enterprises, however, sometimes line" number that a lawyer can use nat- million net loss, purportedly using exclude nonrecurring gains in an effort ural law to verify. Commonly referred GAAp, into $393 million in net to report lower net income, which to as "earnings management;' corporate income. Such write-downs and translates to smaller profit-sharing managers can often use GAAP's flexi- charges, however, would seem to repre- payments to employees (or reduced bility to show operating results in line sent normal business expenses and income tax obligations). Lawyers with projections and expectations. losses. drafting agreements that rely on earn- Especially when an enterprise's In an effort to focus investors on ings to set prices or to trigger pay- business changes (witness Enron's results from "normal" business opera- ments, for example, should distinguish evolution from a regional natural tions, an enterprise may, knowingly or pro forma earnings from net income gas company to a global energy and innocently, mislead investors. Initially, calculated in compliance with GAAP. commodities trader), lawyers should pro forma reporting can hide troubling Without distinguishing between the pay particular attention to the financial results. For instance, in its two benchmarks, parties to such an accounting principles an enterprise 2000 fourth-quarter earnings release, agreement can manipulate earnings by uses to account for transactions arising Enron boasted a 25 percent increase in labeling some items as one-time or from the new business activities. earnings per share (EPS) for the full nonrecurring. • 16

5. With friends like these, .... Related-party transactions, especially those involving a special purpose entity (SPE), can distort an enterprise's apparent financial condition and operating results. Although related-party transactions may increase Lawyers should also efficiency in transacting business, they may also allow an enterprise to manip- carefully scrutinize financial ulate its earnings by the way the enterprise sets prices or allocates expenses. statements, disclosures and transactions that involve an Similarly, an enterprise may use SPEs for legitimate purposes, such as to auditor who may have compromised independence, limit exposure to risk in certain investments, such as credit card receivables whether in fact or in appearance. or residential mortgages. An enterprise, the "sponsor;' generally forms an SPE to transfer risks from such investments to outside investors. Enron's transactions with its SPEs, including the so-called Chewco 4. Sometimes, looks are everything. and LJM partnerships, highlight the Auditor independence matters - both in appearance and in fact. During dangers that can arise from related- the late 1990s, the largest public accounting firms increasingly provided non-audit party transactions. As a small, but rel- services, such as consulting, internal audits and tax advising, often for the very atively simple example, Enron sold an enterprises they audited. During 2000, Enron paid $52 million to Arthur interest in a Polish company to LJM2 Andersen - $25 million for auditing services, and an additional $27 million for for $30 million on December 21, 1999. non-auditing services - and ranked as Andersen's second largest client. In addi- While Enron intended to sell the inter- tion, an internal Andersen memo regarding the retention of Enron as an audit est to an unrelated party, the company client refers to $100 million a year in potential revenues from Enron. could not find a buyer before the end Unlike lawyers who must zealously represent their clients, auditors' real of the year. The sale allowed Enron to responsibilities flow to the investing public, not to the enterprise that hires them. record a gain of $16 million on a trans- By evaluating an enterprise's financial statements and expressing an opinion as to action that Enron could not close with whether those statements fairly present, in all material respects, the enterprise's a third party. Remarkably, Enron later financial position and operating results, an auditor seeks to help maintain investor bought back LJM2's interest for $31.9 and creditor confidence. To satisfy generally accepted auditing standards, an audi- million after it failed to find an outside tor must remain independent from any enterprises it audits - both in fact and in buyer. Another deal allowed Enron to appearance. When non-audit fees comprise a substantial piece of an auditor's report a $111 million gain on the trans- income from the audit client, those fees might tempt an auditor to overlook an fer of an agreement with Blockbuster enterprise's "aggressive" accounting simply to retain the client's non-audit business. Video to deliver movies on demand, At a minimum, substantial fees paid to auditors for non-audit related services call even after Enron realized that no real the appearance of independence into question. Even if the auditor continues, in profits would ever flow from the fact, to exercise objective judgment, such relationships impair the appearance of underlying agreement. independence. As the recent malaise that has afflicted the stock markets in the The related-party transactions United States ably demonstrates, even the perception of lack of independence can with SPEs, often occurring at the end shake investor confidence in the quality of financial statements. Because investors of a fiscal period, allowed Enron to view a lack of independence, whether in appearance or in fact, with a critical eye, manipulate its reported earnings, to lawyers should encourage clients to preserve independence, both in fact and in close deals at desired amounts quickly, appearance. Lawyers should also carefully scrutinize financial statements, disclo- to hide debt, and to conceal poor per- sures and transactions that involve an auditor who may have compromised inde- forming assets. Such transactions, pendence, whether in fact or in appearance. which frequently occurred at the end • 17

of a quarter or year, allowed Enron to client's securities disclosures in an other claims, especially when future or meet its earnings expectations and to effort to assure that those disclosures past earnings determine legal rights sustain its stock price. In fact, Enron accurately describe the transactions' and obligations, should keep in mind sometimes even backdated such trans- true nature and effects on the financial that an enterprise can use related-party • actions to the previous period, in an statements. Likewise, lawyers negoti- transactions to manipulate earnings. effort to "manufacture" income for that ating other transactions or pursuing period. Because Enron entered into those transactions with "friendly" related parties, the company could quickly 6. Details, details, details. and easily negotiate terms that allowed Corporations should develop and adhere to internal controls (both admin- its earnings to appear on target. In istrative and accounting). Administrative controls generally refer to an enter- addition, Enron used its earliest SPEs prise's plan of organization, procedures and records that lead up to management's to obtain financing without showing approval of transactions. Accounting controls, by comparison, describe the plans, the related liability on its balance procedures and records that an enterprise uses to safeguard assets and produce sheet. Finally, Enron used SPEs to reliable financial information. Enron's administrative controls included policies move poor-performing assets off of its designed to minimize conflicts of interest and to ensure that transactions fairly balance sheet. By transferring such benefitted the company. Not only did recent events prove Enrons administrative assets to SPEs, Enron could hide later controls inadequate, but those events also showed that Enron failed to follow the declines in the value of those assets. controls that it had put in place. GAAP requires an enterprise to For example, when Enron's board approved a policy that allowed the compa- disclose information about material ny to enter into transactions with certain entities owned by Enron officers, the related-party transactions in the notes implementing procedures explicitly required management to use a "Deal Approval to the financial statements. In particu- Sheet:' By requiring certain disclosures and the approval of Enrons chief execu- lar, an enterprise must disclose the tive officer, the Deal Approval Sheets sought to ensure that the contractual provi- nature of any relationships involved sions in such transactions would closely resemble the terms that would have and also provide a description of the materialized in an arms' -length transaction. In fact, the chief executive officer's transactions for each period for which signature does not appear on the sheets for several specific transactions. the financial statements present an Moreover, the current absence of sheets for other transactions suggests that income statement, including any infor- Enron did not complete any such document in those transactions. mation necessary to understand the As another example, Andrew Fasrow, Enrons former chief financial officer, transactions' effects on the financial and, for a time, the general partner of the several partnerships that entered into statements; the dollar amounts of the transactions with Enron, reportedly earned more than $30 million from his transactions and the effects of any investments in those enterprises. Even though the board seemed to recognize the changes in the method used to estab- conflict of interest inherent in such related-party transactions, the board failed to lish terms when compared to those require that Mr. Fastow report his profits from the partnerships to the company. followed in the preceding period; and Such disclosures almost certainly would have alerted the board to the possibility amounts due from or to related parties that the underlying transactions unfairly benefitted the related parties, to the on each balance sheet date and the detriment of Enron and its shareholders. Other items in this list document that related terms governing those Enron failed to implement adequate accounting controls. amounts. The disclosures should not Although top management bears the initial responsibility to develop, imple- imply that the transactions contained ment and, when necessary, revise adequate internal controls, overall oversight falls terms equivalent to those that would to the board of directors, who often rely on lawyers for advice. Internal controls have prevailed in an arms' -length work effectively only when those who bear responsibility for developing, imple- transaction unless management can menting, and overseeing those controls stress the need to adhere to all policies substantiate that claim. Enron did dis- and procedures and lead by adhering to those rules themselves. In recent years, close various related-party transactions the SEC has brought administrative actions and imposed so-called "tone-at-the- in the notes to its financial statements, top liability" under the Foreign Corrupt Practices Act, which applies to all SEC but not in any detail. registrants, including enterprises that engage only in domestic operations. Strong Lawyers who assist in related- internal controls enhance the likelihood that the enterprise will engage in sound, party transactions should carefully beneficial transactions and reduce the chances that an enterprise will incur the examine the transactions and their enormous losses that can result from internal control failures. • 18

7. If it walks like a duck, .... 8. Promises, promises. In recognizing revenue (and accounting generally), substance prevails over Any time an enterprise guaran- form. Under GAAp, an enterprise cannot recognize revenue until the business tees the indebtedness of another in has substantially completed performance in a bona fide exchange transaction. If a material amounts, the enterprise transaction does not unconditionally transfer the risks that typically accompany a must disclose the nature and amount "sale;' the enterprise may not recognize revenue. of the guarantees in the notes to the Enron's announcement regarding a $544 million after-tax charge to earnings financial statements. When Enron's in October 2001 revealed a serious flaw in its prior financial statements: Enron SPEs sought credit, the lenders often had improperly recognized revenue from transactions with its SPEs. In short, required that Enron guarantee the Enron recorded revenue after transferring certain assets to those SPEs, even debt. On several occasions, Enron though credit guarantees, promises to protect the purchasers from any loss from guaranteed amounts that various SPEs decline in value or buyback agreements caused the company to retain the risks of borrowed by promising to pay cash or ownership even after the transfers. As a result, Enron had not truly "earned" the to issue additional common shares to revenue it reported. repay the debt if the market price of Enrons "sham" transactions resemble schemes that ultimately led to the Enron's common shares dropped under demise of Drexel Burnham and the imprisonment of Michael Milken, that a set amount or if Enrons bond rating appeared so frequently during the savings and loan crisis, and that accompany fell below investment grade. While the most financial accounting frauds today. Milken ultimately pled guilty to charges notes to Enrons financial statements involving "parking;' whereby Drexel Burnham purchased securities from third par- disclosed guarantees of the indebted- ties with the understanding that the investment banking firm would quickly resell ness of others, Enron did not mention the securities back to the third parties at a fixed price. Similarly, the Federal that its potential liability on those Home Loan Bank Board took control of Lincoln Savings and Loan Association in guarantees, which shared common 1989 after discovering, among other things, that Lincoln or its affiliates had recog- debt repayment triggers, totaled $4 nized income on sales of real estate even though the funds for the down payments billion. When material, GAAP specifi- had emanated from Lincoln itself. In substance, Lincoln or its affiliates had cally requires an enterprise to disclose retained the risks of ownership and could not recognize revenue from the sales. the nature and amount of guarantees The issue of substance over form applies not only to managers and account- of the indebtedness of others. Again, ants, but to attorneys as well. The litigation that follows from financial frauds can inadequate disclosure can subject impose enormous financial costs. In addition, a lawyer who fails to investigate, or enterprises to liability and lawyers to perhaps spot, a "red flag;' such as a side agreement or guarantee, can face stagger- malpractice claims. ing personal liability for malpractice. Whether drafting, negotiating or interpret- ing contractual provisions that refer to "net income" or "earnings;' performing "due diligence" to determine whether a particular transaction will further a client's best interests or rendering a "true sale" opinion regarding whether a transferor that retains some involvement with the transferred asset (or the transferee) has sur- rendered economic control over the asset to justify treating the transaction as a sale for financial accounting purposes, substance over form requires an attorney to look beyond the form of a transaction and to try to identify any arrangements that may affect the transaction's economic realities. In particular, understanding the motivations for a transaction offers an important clue to the transaction's substance. Enron often transferred assets to SPEs to hide losses or to remove liabilities from its balance sheet. Although most clients or adversaries will not expressly state such desires, such effects should also alert attorneys to issues of substance over form.

Again, inadequate disclosure can subject enterprises to liability and lawyers to malpractice claims. • 19

Because provisions in many of Enron's credit agreements required the company to maintain an investment grade credit rating, the downgrades triggered debt repayment obligations, which accelerated Enron's bankruptcy.

9. If it sounds too good to be the value of Enron's common shares GAAP states that an enterprise should true, .... fell, Enron had to issue additional treat any notes received in payment for An enterprise cannot recognize shares pursuant to its agreements with the enterprise's stock as an offset to income from issuing its own shares the SPEs and the related guarantees. shareholders' equity. Only when the and generally should not record a net These additional shares reduced obligor pays the note can the enter- increase in shareholders' equity when Enron's stock value, which triggered prise record an increase in sharehold- it issues stock in exchange for a note additional guarantees. In the interim, ers' equity for the amount actually receivable. At the risk of oversimplify- Enron recognized about $500 million paid. ing, Enron used related-party SPEs to in revenues from the hedges, which Many credit agreements allow the hedge, or to protect itself from declines had really arisen from the issuance of lender to accelerate the repayment of in the market value of, certain invest- the company's own shares. GAAp, the debt if the borrower's debt-to- ments that Enron used current market however, does not allow an enterprise shareholders' equity ratio exceeds a prices to value on its books. In these to record gains from the increase in the certain level or if the borrower fails to arrangements, Enron transferred its value of its capital stock on its income maintain a certain credit rating. own stock to the SPEs in exchange for statement. Although Enrons $1.2 billion reduc- a note or cash. In addition, Enron As previously mentioned in the tion in shareholders' equity did not guaranteed, directly or indirectly, the first item, Enron announced on itself trigger any debt repayment obli- SPE's value. The SPEs in turn hedged October 16, 2001, that it had recorded gations, investment ratings companies the underlying investments, using the a $1.2 billion reduction in sharehold- immediately placed Enron on review transferred Enron stock as the princi- ers' equity, arising, in large part, from for downgrade. Soon after, the ratings pal source of payment for the hedges. an accounting error. When Enron companies downgraded Enrons credit The value of the underlying invest- issued its common shares to several rating to below investment grade. ments decreased, but the hedges SPEs in exchange for notes receivable, Because provisions in many of Enrons allowed Enron to recognize a corre- Enron recorded the notes receivable as credit agreements required the compa- sponding increase, resulting in a wash. assets, thereby overstating sharehold- ny to maintain an investment grade The SPEs, however, could reimburse ers' equity by $1 billion. Although credit rating, the downgrades triggered Enron for any decline in value of the GAAP usually allows an enterprise to debt repayment obligations, which investments only as long as the market record notes receivable as assets, a dif- accelerated Enron's bankruptcy. price of Enron's common shares ferent rule applies when an enterprise remained stable or increased. When issues stock in exchange for the notes. • 20

from them. Now, more than 10 years later, we hear similar questions directed to Enrons lawyers. While Enrons lawyers, both in-house and outside counsel, did question some practices, Enron officers and employees often either ignored the lawyers' advice, or changed the transactions just enough to get around the lawyers' particular concerns. In some cases, Enron's lawyers apparently helped to complete the very transactions they questioned. The attorney-client privilege pre- vents lawyers from disclosing client confidences. That privilege, however, does not prevent lawyers from discussing concerns with their clients, attempting to persuade their clients to choose another course of action, going up the "corporate ladder" or even with- drawing from representing their clients if a client declines to follow the lawyer's advice. When Enroll's lawyers questioned Enrons practices, they voiced their concerns to Enroll's in- house lawyers and its management, but .•• Enron officers and not to the board of directors or the audit committee. Blind deference to employees often either 10. When the going gets accountants and auditors seems unwise tough, .... and dangerous. We'll never know, but ignored the lawyers' Lawyers' duties to their clients without hearing the concerns of include an obligation to object when a Enrons lawyers, the board of directors advice, or changed the client proposes or uses questionable or the audit committee arguably could accounting policies or practices. In not see an objective picture of those transactions just enough his well-publicized opinion in the transactions and Enrons financial Lincoln Savings and Loan case, Judge accounting practices. to get around the lawyers' Sporkin asked where the lawyers were Standing up takes courage. Let's when Lincoln consummated various hope that Enrons collapse encourages particular concerns. improper transactions, wondering why more lawyers to watch for accounting they did not attempt to prevent those "red flags" and to respond courageously transactions or disassociate themselves when they see them.

*THE AUTHOR GRATEFULLY ACKNOWLEDGES THE INVALUABLE ASSISTANCE OF

SHANNON BENBOW, A MEMBER OF THE CLASS OF 2003, AND HELPFUL COMMENTS

FROM DAVID R. HERWITZ, TERRY LLOYD AND MARK P. TELLOYAN. FOR ANOTHER

AND MORE DETAILED LISTING OF THE TOP 10 THINGS THAT EVERY LAWYER SHOULD KNOWABOUT ACCOUNTING,SEE DAVID R. HERWITZ AND MATTHEW J. BARRETT,

~ L_A__VV l_N__T__H_E ~

RULE OF LAW: FUTURE CHURCH-STATE BATTLES LOOM

1 BY RICHARD W. GARNETT, ASSOCIATE PROFESSOR OF LAW

In constitutional law, as in comedy, timing is everything. Of course, even the needs of the disadvantaged would not excuse a constitutional violation. But there is no violation here. Ohio's legislators have elect- [In the last week of June], just before the Supreme Court ruled on the consti- ed to subsidize education, not religion;it is parents, not the state, who decide tutionality of Cleveland's school-choice program, an appellate court in where that education should take place. Such a decision no more violates the California shocked even the Senate with its decision that the Pledge of First Amendment than does an undergraduate's decision to apply federally sub- Allegiance violates the First Amendment In light of the Supreme Court's sidized student loans toward tuition at Notre Dame or BrighamYoung determination that the Ohio voucher program does not "establish" religion, University. one would be right to wonder about the law governing church-state relations. Do these two cases tell us anything about the next wave of church-state How could the same few words of the Constitution require both these results1 disputes! They do. The next round of battles will center on the legal distinc- Although politicians from across the spectrum denounced the Pledge ruling tion between the "sphere of government" and "civilsociety:' The Establishment as wrongheaded, leading precedents provide some support for the result. So Clause, remember, speaks to what the government does - it is government the senators' outrage might have been better directed at those Supreme Court that may not "establish" religion. But the First Amendment does nothing to precedents than at two appellate judges in California. limit,and in fact protects, the right of citizens to proclaim religious beliefs in the The reaction to Zelman v.Simmons-Harris,the school-choice case, was, in public square. some quarters, nearly as overwrought as the outcry over the Pledge decision. The separation of church and state does not mean that religious expression Editorial pages and activists echoed Justice John Paul Stevens' dissent, and is constitutionally condemned to a privatized ghetto; it simply means that it is warned that yet another crucial brick had been removed from the traditional not the business of government But,as the Pledge case and other recent deci- "wall of separation" between church and state. sions involvingreligious after-school clubs remind us,the line between state- In fact, as Justice Sandra Day O'Connor said in her concurring opinion, the sponsored belief and private expression in the public forum is not always easy decision was neither innovative nor radical. Chief Justice William Rehnquist's to identify. majority opinion, confirming that the Constitution permits communities to We can also expect cases dealing with the autonomy of religious institu- experiment with choice-based education reforms, was simplythe reasonable tions, and involvingconflicts between the nondiscrimination norms that we application of a line of cases dealing with educational-assistance programs. have imposed on government and the doctrines of faith. How should a consti- In what will be regarded as a landmark of his distinguished tenure on the tutional democracy, committed to equal treatment, religious freedom, and free court, the Chief Justice emphasized themes that he first sounded in 1983, in expression, respond to groups that practice what government regards as Mueller v. Allen: The Ohio school-choice program is "entirely neutral with discrimination1 respect to religion;' he observed, and it permits its beneficiaries "to exercise Justice Souter's dissent foreshadowed these conflicts when he warned that 'genuine choice among options public and private." In other words, the pro- religious schools which accept "public" funds in the form of vouchers should gram accords equal treatment, not preference, to religious schools and the not be surprised when those funds come with secularizing regulatory strings parents who choose them. Such equal treatment of religion is not, in the attached. The next education-reform fight,then, will not be about whether the education-reform context, an "establishment" of religion. Constitution allows religious schools to participate in voucher plans, but about Judge Ferdinand Fernandez's dissent in the [Ninth Circuit's] Pledge case whether they will be made to compromise their mission if they do. advanced similar arguments. There is nothing unconstitutional about the Recall the recent Boy Scouts case, where a divided Court affirmed the right recitation of the Pledge in school, he reasoned, because the purpose of the of a private group to determine its own values,and to hire and fire on the basis Establishment Clause is not "to drive religious expression out of public of those values. Remember, also, that many of President Bush's faith-based thought," but rather to guarantee "neutrality;' and "avoid discrimination." initiatives stalled in Congress over the question whether religious social-service The dissenters in Zelman, led by Justices Stephen Breyer and David Souter, providers would be required to tone down their evangelization. insisted that the Constitution demands strict separation, not equal treatment of These are the kinds of church-state battles likelyto preoccupy the courts in religion,as the means of achieving"social concord:' Justice Stevens, writing the next few years. separately, sounded similar concerns, asserting that the ruling would "increase the risk of religious strife and weaken the foundation of our democracy:' But these arguments are unfounded. The Court was on solid legal ground in reject- Thisarticle appeared originally in the July 1,2002, edition of the WAil STREETJOURNAL ing a theory that would have had the effect of kickingthousands of inner-city and is reprinted with permission. children out of the school-choice lifeboat. • 22

NEWS FROM THE CENTER FOR CIVIL AND HUMAN RIGHTS

• The Center for Civil and Human • Ada Verloren '90 LL.M., assistant • Ali Qazilbash '97 LL.M., a current Rights hosted a colloquium with to the director in the Center for Civil J.S.D. candidate in the center, com- Douglass Cassel, a visiting scholar in and Human Rights, has left NDLS to mented on the situation in his native the center and associate professor of become the project manager for the Pakistan, in the wake of the kidnaping law at Northwestern University Law Advanced Studies Center of the and murder of WALLSTREETJOURNAL School, on "Why Transitional Justice International Institute at the reporter Daniel Pearl and the attack on Erodes - and Should Erode - State University of Michigan. During the a Christian church in that country, in Sovereignty;' April 18, 2002. last few years at NDLS, Ada strength- an article in the May 14, 2002, edition ened the center's alumni community of the SOUTH BENDTRIBUNE. While • The CCHR has received a $60,000 through a variety of outreach efforts condemning the recent violence, Mr. grant from the Open Society Institute including twice yearly publishing the Qazilbash believes that Pakistan is in a for the 2002 calendar year to support center's newsletter, Notre Dame Human good position to benefit from the two visiting fellows who will examine Rights Advocate. She also taught cours- increased attention the nation has issues of human geography and the es in the center's LL.M. program, and received from the world. He believes internal war in Colombia, as well as represented NDLS and the center at that if President Musharraf can root issues of justice and reconciliation as various human-rights conferences out Islamic fundamentalism and can they relate to punishment and forgive- around the world. improve law and order, the nation's ness in the Colombian war. image will improve and that, in turn, likely will lead to economic development and better opportunities for health care and education.

2001-02 Participants in the LL.M. andJ.S.D. Programs. Back row: Miguel Angel de los Santos, Professor Juan Mendez, Alaa Kaoud, Dr. Ada Verloren, Andres Sanchez Thorin, Sean O'Brien, Bernard Duhaime, James Verdier, Sonia Boulos, Alpha Fall. Front row: Marilyn Imus, Luisa Khitarishvili, Edita Kusari, Clare Hamill, Babafemi Akinrinade,Remzij Istrefi, Helena Olea. • 23

IF A c

Faculty biographies and contact infor- Criminal Wrongdoing of Bishops Would be articles on Human Rights and mation may be found on line at Difficult to Prove, Experts Say on May 2, Subsidiarity, from the European Union to www.nd.edu/-ndlaw/faculty/faculty.htm!. 2002; in an article titled Church's Legal International Law, to be published in Move in the May 7,2002, edition of the AMERICANJOURNAL OF • JOSEPH P. BAUER participated in USA TODAY; in an article titled RICO INTERNATIONAL LAW, The Charter of a panel discussion on "What Do We A Long Shot in Catholic Church Sex Abuse Fundamental Rights, Between the Union Mean by Harm to Competition" at the Case in the April 2, 2002, editions of and the Member States, and Retrieving a Second Annual Midwest Antitrust the BROWARD(FLORIDA) DAILY Latin American Tradition of the Idea of Colloquium sponsored by the Institute BUSINESS REVIEW, the MIAMI Human Rights. In April, he delivered for Consumer Antitrust Studies at the (FLORIDA)DAILY BUSINESS REVIEW the Yves Simon Memorial Lecture at Loyola University Chicago School of and the LEGAL INTELLIGENCER, and the University of Chicago on "Of Law, April 5, 2002. He presented "The the May 13,2002, edition of the PALM Conquest,Constitutions and 'Antitrust Injury' Doctrine: Adding BEACH (FLORIDA) DAILY BUSINESS Catholics: Retrieving a Latin American Insult to 'Injury'?" at the 50th annual REVIEW; and in an article titled More Tradition of the Idea of Human spring meeting of the ABA's Section of Dioceses Face Grand Jury Inquiries After Rights"; an article of the same title is Antitrust Law, April 24-26, 2002, in Bishops' Meeting in Dallas in the July 12, forthcoming in HUMAN RIGHTS Washington, D.C. He also presented 2002, edition of THE NEW YORK QUARTERLY.He also commented on "A Primer on Antitrust" at a program TIMES. tort litigation issues surrounding the titled "Research Workshop and Also on April 24, NPR's "Morning current abuse crisis in the Catholic Conference on Marketing Competitive Edition" featured his comments on the Church in an article titled Scandals in Conduct and Antitrust Policy" spon- propriety of using RICO against pro- the Church: The Liability in the April 23, sored by the University's Mendoza testors at abortion clinics. The U.S. 2002, edition of THE NEW YORK College of Business, the American Supreme Court decided in mid-April TIMES. Antitrust Institute and the JOURNAL to hear the case, brought in 1986 by • RICHARD W. GARNETT pub- OF PUBLIC POLICY ANDMARKETING, the National Organization for Women lished Common Schools and the Common held at Notre Dame, May 2-4, 2002. against Joseph Scheidler and others, to Good: Reflections on the School-Choice decide whether the law had been • GEOFFREY J. BENNETT pub- Debate in volume 75 of ST. JOHN'S LAW applied correctly to the facts of the lished Criminal Procedure and Sentencing REVIEW and Sectarian Reflections on case, and whether the RICO statutes in ALL ENGLAND LAW REPORTS Lawyers' Ethics and Death Row Volunteers should allow judges to grant injunc- ANNUAL REVIEW 2001. in volume 77 of the NOTRE DAME tions against protesters, forbidding LAW REVIEW. He delivered a talk enti- • G. ROBERT BLAKEY '57, '60 J.D. them from further similar actions. His tled "Law and the Humanity of the participated in a discussion on the commentary on the subject has been Death Row Inmate" at the Third April 24, 2002, edition of NPR's "Talk picked up in the May 20, 2002, edition Annual Collegiate Youth Conference, of the Nation" regarding the recent of National Review, in its "The Week" hosted by Notre Dame and sponsored crisis of sexual abuse in the Catholic section. by Notre Dame Right to Life, April 12, Church. His comments concerned the Professor Blakey also commented 2002. difference between crime and sin and on the use of RICO to prosecute street He commented on the recently how the church responds to allegations gangs in an article titled RICO Being completed 2001-02 term of the U.S. of abuse in those various contexts. He LI in the May 8, Used to Fight Gangs Supreme Court, focusing particularly also commented on the issue in two 2002, edition of NEWSDAY. on the decisions involving the death separate articles in the DALLAS penalty and school vouchers, in a num- MORNINGNEWS: Criminal Guilt or Just • PAOLO CAROZZA, during his recent research sabbatical, completed ber of articles including Top Court Bad Decisions? on April 27, 2002, and • 24

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Backs Vouchers in the June 28, 2002, edition of the CHICAGO TRIBUNE; PROFESSOR EMERITUS BRODEN HONORED Longtime Justices Hold Sway in Opposite Camps in the June 30, 2002, edition of Professor Emeritus Thomas F.Broden '49 J.D.has been honored by the United Religious Community (URC) of the Los Angeles Times; Watershed Cases St Joseph County, Indiana,with a "Hearts Afire" award during the URC's 30-year anniversary celebration in Cap High Court Term in the July 1, May. Professor Broden co-founded the organization in 1972 and served on its homelessness task force, out of 2002, edition of the CHICAGO which the South Bend Center for the Homeless originated. The interfaith organization has TRIBUNE; and Yes to Vouchers in the served as a forum through which all religious groups that perform similar work in the com- August 16, 2002, edition of munity could combine their efforts to achieve the same goals. COMMONWEAL Additionally,the SOUTHBENDTRIBUNErecognizedProfessor Broden as one of its "Heroes • JIMMY GURULE published United Among Us" in an article titled GrassrootsEfforts Cuhivate HomelessShelter on May 12,2002. States Opposition to the 1998 Rome Statute The article focuses on his work in the community, particularly his role in founding the South Establishing an International Criminal Bend Center for the Homeless. Court: Is the Court's Jurisdiction Truly A member of the NDLS faculty since 1950,Professor Broden has long been a champion of causes to help the disadvantaged, both locally and nationally. In 1970,he helped to found Complementary to National Criminal the University's Institute for Urban Studies, which he also directed for 20 years. An integral Jurisdictions? in volume 35 of the force behind the creation of the U.S.Civil Rights Commission, he served as counsel to the U.S.House of CORNELL INTERNATIONAL LAW Representatives Judiciary Committee from 1955 to 1957. In the St Joseph County area, he has served with JOURNAL the South Bend Fair Employment Practices Commission, the Coordinating Committee for Civil Rights of He gave the commencement South Bend,the Urban Coalition and the Legal Services Program of Northern Indiana. address at the spring graduation of his alma mater, the University of Utah, May 26, 2002.

• M. CATHLEEN KAVENY com- LAW LIBRARY GROWS WITH ADDITION OF mented on the moral issues surround- CIVIL AND HUMAN RIGHTS LIBRARIAN ing the current abuse scandal in the Catholic Church in a number of arti- Roger Jacobs has appointed Laurel Cochrane to the position of visiting associate librarian in the Kresge Law cles including: For the Faithful, Trying to Library'sTechnical Services Department As the library's new human-rights librarian, Ms.Cochrane will devote Reconcile Morality and Scandal in the much of her time to organizing and making accessible materials acquired and generated by the Center for March 28, 2002, edition of THE NEW Civil and Human RightsTransitional Justice Project Working under the direction of the Head ofTechnical YORK TIMES; James Burnett Looks at Services Joe Thomas, and in close liaison with Project Manager Javier Mariezcurrena, Ms. Cochrane will inte- How the Catholic Church Might Salvage grate the project's materials into existing library holdings in human rights. She will also participate in other Its Tainted Reputation in the April 22, cataloging activities to increase the effectiveness of LINK,the library's online catalog. 2002, edition of PR WEEK; and Bishop Ms.Cochrane earned her BA in Englishat Indiana University,where she was named Outstanding English Student of the Year in 1979. She earned her masters degree in Library Science from I.U.in 1988. She has had Says Mistakes Made Handling Cases in a long and distinguished career as a cataloging librarian, primarily at the St Joseph County Public Library here the May 19, 2002, edition of the in South Bend. She brings expertise in the use of the law library's integrated library system,lnnopac, and is a HOUSTON CHRONICLE. member of national library and cataloging organizations. She participated in a conference on June 13, 2002, sponsored by the Hartford (Connecticut) County Bar Association's Ethics Study Group to discuss her recent article, Billable Hours ROGER}ACOBS RECOGNIZED FOR SERVICE in Ordinary Time. Roger Jacobs was recognized as a "Hero Among Us" by the SOUTHBENDTRIBUNEinan article • DONALD P. KOMMERS titled St Vincent de Paul Volunteer Humble in the paper's May6,2002, edition. A member of the published Die freie Meinungsaiiflerung Notre Dame Law School faculty and director of the Kresge Law Library for 17 years, Mr. in der Rechtsprechung des Jacobs has served the St Vincent de Paul Society for more than a decade as the local confer- Bundesverfassungsgerichts und des Supreme ence (neighborhood) president, although he and his wife Alice have spent many more years Court in TRADITION UND among the ranks of tireless volunteers who help the needy in the South Bend area. WELTOFFENHEIT DES RECHTS; FESTSCHRIFT FORHELMUT e • 25

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STEINBERGER,edited by Hans-Joachim In March, at a meeting of experts Human Rights, he conducted a fact- Cremer (Springer 2002). He spoke at on human rights and democracy at the finding mission to Guatemala that the celebration in honor of Helmut offices of the Open Society Institute included extensive interviews at the Steinberger, professor emeritus of law in New York, Professor Mendez com- capital and visits to two control sites at Heidelberg University and former mented on a proposal to create a on the Guatemala-Mexico border. He justice of Germany's Federal world-wide institute to coordinate presented an advance of his annual Constitutional Court, January 26, legal approaches to human rights report to the Committee on Political 2002, in Heidelberg, Germany. protection. Later that month, as and Juridical Affairs of the Permanent part of as part of his duties as special Council of the OAS in Washington, • GARTH MEINTJES '91 LLM., rapporteur on the Rights of Migrant D.C., several weeks later, in April. associate director of the Center for Workers and their Families within Professor Mendez also continues Civil and Human Rights, served as an the Organization of American States to make significant written contribu- instructor at the 2002 Legislative Inter-American Commission on tions to the field of human rights. In Drafting Institute sponsored the Public Law Center at Tulane University School of Law.

• JUAN MENDEZ continues with NEW FACULTY FOR 2002-03 a very active speaking schedule. In January, he lectured on "Terrorism Dean Patricia A. O'Hara has announced that the Law School will add two faculty members in 2002·03. and International Law;' as part of Robert L Jones Jr. '80 is the new director of the Notre Dame LegalAid Clinic. He graduated from Notre the special undergraduate course on Dame in 1980 with a B.A.,summa cum laude, in the Program of Liberal Studies and French, and earned his J.D., "Problems of Contemporary Violence: cum laude, from Harvard Law School in 1984. He is a member of Phi Beta Kappa and, while in law school, Terrorism, War and Peace after served as managingeditor of the HARVARDLAwREVIEWand as chair of Students for Public Interest Law. September 11:' He also commented Followinggraduation from law school, Mr.Jones clerked for Honorable Milton Shadur on the case of John Walker Lindh and on the U.S.District Court for the Northern District of Illinoisfor a year. the prisoners at Guantanamo Bay, Since 1985,he has been staff counsel and transportation project director of for WSBT radio in South Bend. Business and Professional People for the Public Interest, a Chicago-based public interest In February, he attended a law and policy center, founded in 1969 to engage in litigation,regulatory advocacy and seminar on "Auditing the Quality policy analysis on issues relating principallyto the environment, fair housing and public- of Democracy;' sponsored by the utilities regulation. He also served as a lecturer at the Loyola University of Chicago United Nations Development Program School of Lawfrom 1985 to 1999,teaching in a variety of areas including appellate (UNDP) and the Proyecto Estado de la advocacy, professional responsibility,legal writing and moot court. Mr.Jones and his wife Lucille(Maloney)Jones '80 are the parents of three children. Nacion, a Costa Rican organization, in San Jose, Costa Rica. He gave two *** presentations to an interdisciplinary Amy Coney Barrett '97 J.D. has joined the NDLS faculty as an assistant professor of law. She earned her graduate seminar on human rights at BA in Englishliterature, magna cum laude, from Rhodes College in 1994,where she was also elected to Phi Emory Law School in Atlanta concern- Beta Kappa and, among other honors, was chosen by the faculty as the most outstanding graduate in the col- ing the inter-American system of lege's Englishdepartment. She earned her J.D.,summa cum laude, from NDLS in 1997,where she was a Kiley human rights protection and the incor- Fellow,was awarded the Hoynes Prize, the Law School's highest honor, and served as executive editor of the poration of international norms into NOTREDAMELAwREVIEW. domestic jurisdiction. He also served After graduating from NDLS,she clerked for Honorable Laurence H.Silberman of the U.S.Court of as the keynote speaker at an event on Appeals for the D.C. Circuit from 1997 to 1998,and then for Honorable Antonin Scalia,associate justice of police brutality at the University of the United States Supreme Court, in the 1998·99 term. From 1999 to 200l,she worked as an associate for Chicago Law School, where he dis- Miller,Cassidy,Larroca & Lewin (now Baker Botts) inWashington, D.C.,where she focused on both trial and cussed an international law perspective appellate matters in federal and state courts involvingthe substantive areas of general on forced confessions. In Tallahassee, civillitigation,white-collar crime and religious liberty. In spring 200 I, she joined the Florida, he gave a talk at Florida State faculty of the George Washington University Law School as an adjunct teaching a semi- University's Human Rights Institute as nar on constitutional law and the Supreme Court. For the 200 1·02 academic year at part of a series on human rights and GWU, she served as visitingassociate professor of law and John M.Olin Fellow in Law. terrorism after September 11. Her teaching interests include civilprocedure, evidence and federal courts. Ms.Barrett and her husband Jesse Barrett '96, '99 J.D.are the parents of one daughter. • 26

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2002, the IIHR issued VERDADY JUSTICIA, in tribute to the late Emilio VISITING FACULTY FOR 2002#03 F. Mignone, co-edited by Professor Mendez, Javier Mariezcurrena and Dean Patricia A O'Hara has announced the following visiting faculty for 2002-03. These legal scholars will add Martin Abregu, and containing several richness and curricular diversity to NDLS. articles in Spanish and English on Reverend John J. Coughlin, O.F.M., an associate professor of law at St John's University School of law, will problems of truth, justice and reconcil- teach in the spring semester. Father Coughlin was ordained a Roman Catholic priest in the Franciscan order iation in transitions to democracy. in 1983. He earned his BA degree from Niagara University in Im,an MA from Columbia University in The tribute includes an article by 1982,a master's degree in theology from Princeton University in 1984,a J.D.from Harvard law School in Professor Mendez on La justicia penal 1987,and his canon law license and doctorate in canon law,summa cum laude, from the Pontifical Gregorian internacional, la paz y la reconciliacion University in Rome, Italy,in 1990 and 1994, respectively. His doctoral dissertation focused on a comparative nacional. He authored an essay in study of the administration of the tribunals of the Roma Curia and the U.S.federal court system. Spanish on citizens' security and A member of the New York bar, Father Coughlin clerked for Honorable Francis X.Altimari on the U.S. human rights, Refiexiones sobre la Court of Appeals for the Second Circuit He has served as general counsel of St Bonaventure University in Consolidacion Demomitica y las garantias Olean, New York.from 1990 to 1993. From 1993 to 1996,he served as legal and canonical counsel to the ciudadanas en America Latina, published Ho~ Name Province of Franciscan Friars in New York. Upon appointment by John Cardinal O'Connor of New York. Father Coughlin served as professor of canon law and spiritual director at St Joseph's Seminary in in EL DESAFfoDEMOcRATICODE New York from 1994 to 200 I. He has also served the Archdiocese of New York as a judge in the Appeals MEXICO: SEGURIDADY ESTADODE Tribunal, vicar of canonical and legal aspects of health care, and as a member of the boards of several Catholic DERECHO (Arturo Alvarado and Sigrid hospitals and educational institutions. Arzt eds., El Colegio de Mexico- He taught as an adjunct at St John's from 1996 to 1998,as a research professor in 1998-99 and, in 1999, Centro de Estudios Sociologicos joined the faculty as an assistant professor. In his first year as a full-time faculty member, St John's law stu- 2001). His essay, EI derecho a la verdad dents selected him as "Professor of the Year:' He teaches in the areas of administrative law,canon law,family frente a las graves violaciones a 105 derechos law and professional responsibility, and will teach courses on the canon law of marriage and professional humanos, originally published in responsibility at NDLS in the spring 2003 semester. Argentina in 1997, has been reprinted Raymond J. Gallagher returns for the fall 2002 semester as a visiting professor of law,teaching a course in in PERU 1980-2000: EL RETO DE LA sports law. Professor Gallagher earned his J.D.from Fordham law School, where he served on the staff of the VERDADY LAJUSTICIA(APRODEH, foRDHAMLAwREvIew. He practiced law at White & Case in New York City, and has taught law at Catholic Lima, 2002). And an article he wrote University of America, Widener University,Villanova University and Georgetown University. with GASTON CHILLIER '00 LL.M., La accion del Congreso y las Thomas O. Patrick is the director of the Dispute Resolution Skills Institute at West Virginia University Obligaciones Internacionales de la College of law, where he also teaches legal research and writing. He earned his AB. from Glenville State Argentina en Materia de Derechos College in 1971,two master's degrees, one in counseling and guidance and the other in En~ish education, Humanos, has been published in EL from West Virginia University in 1975 and 1981,respectively, and his J.D.from w.V.U. in 1985. He will serve as CASO BUSSI:EL VOTO POPULARY LAS a visiting associate professor of law,teaching a section of LegalWriting I in the fall 2002 semester, and a sec- VIOLACIONESA LOSDERECHOS tion of LegalWriting II - Moot Court and a course in alternative dispute resolution or negotiation in the spring 2003 semester. HUMANOS, a book edited by Senator Jorge P. Busti and Dr. Juan Carlos Vega Thomas E. Plank is an associate professor of law at University ofTennessee, Knoxville,where he teaches regarding the decision by the courses in debtor-creditor law,commercial law,property law and aspects of representing enterprises. He Argentinian congress to deny recogni- earned his AB. in 1968 from Princeton University, and his J.D.in 1974from the University of Maryland. He tion to an elected representative on was a partner in the Washington, D.C., office of Kutak Rock and twice served as assistant attorney general for account of his role as an army general the state of Maryland. As a visiting professor of law for the academic year, he will teach courses on bankrupt- during the "dirty war" in the 1970s. cy and secured transactions in the fall semester, and a course in payment systems, as well as a seminar in secu- ritization - a capstone commercial law course - in the spring. • PATTI]. OGDEN participated in Collegium's 2002 Annual Colloquy Michael I. Swygert is a professor of law at Stetson University College of law in St Petersburg, Florida. He in mid-June at Fairfield University in earned his AB., cum laude, from Valparaiso University in 1965, and his J.D.,summa cum laude, from Valparaiso Fairfield, Connecticut. The Collegium University School of law in 1967,where he graduated first in his class and served as editor-in·chief of the very first volume of the VMJARAJSOUNMRSfTYLAwREvIew. He then earned an LLM.from Yale law School in summer institute developed in 1968. He engaged in private practice in the Chicago, Illinois,office of Hopkins, Sutter, Owen, Mulroy,Wentz & response to the long-standing concern Davis,before beginning his teaching career, which has included positions at Valparaiso, DePaul and Stetson. As among educators and church leaders a visiting professor of law for the academic year, he will teach Contracts I and a course in advanced jurispru- for the future prospects of the reli- dence in the fall 2002 semester, and Contracts IIand a course in law and economics in the spring 2003 gious identity of the many Catholic semester. • 27

FA C U LTY N o T E s colleges and universities in the United Institute in Santa Clara, California, States and Canada. Some Catholic in April 2002. He spoke at the NEW ADJUNCTS JOIN institutions have found it increasingly May 15 meeting of Michiana Second FACULTY difficult to uphold their faith-based Amendment Advocates, discussing a mission statements and identify, recent case in Texas in which a court The following practitioners will serve as adjunct recruit and develop new faculty who ruled that the right to bear arms, as assistant professors of law during the 2002-03 can both articulate and expand the protected by the Second Amendment, academic year: vision of the Catholic intellectual is an individual right and not a collec- tradition. tive right. Ralph E. Dejong '82 J.D. earned his BA from Collegium, a national organization Calvin College in Grand Rapids, Michigan,in • HONORABLE KENNETH F. of 50 Catholic colleges and universities 1979,and his J.D.,magna cum laude, from NDLS RIPPLE presided at the final argu- in 1982. A partner in the Chicago, Illinois,office including Notre Dame, was founded in ment of the Annual Orison S. Marden of Gardner, Carton & Dou~as, he will teach a 1992 to respond to these challenges. Moot Court Competition at New York course on employment-benefits law in the spring The annual Collegium summer semi- University School of Law, April 16, 2002 semester. nars provide a collegial environment in 2002. which participants from diverse back- John N. Gallo '83 graduated from Notre Dame He was featured in an article grounds, faiths and disciplines can dis- with a BA, summa cum laude, in the Program of titled 7th Circuit Making Its Mark on cuss the sources and implications of a liberal Studies in 1983,and earned his J.D.,cum Law in the April 27, 2002, edition of Christian academic vocation. laude, from Harvard Law School in 1986. A part- the CHICAGODAILYLAWBULLETIN, ner in the Chicago, Illinois,office of Sidley,Austin, • LUCY SALSBURY PAYNE which discussed the strong intellectual Brown & Wood since 1996, he will teach a '88 J.D. has left her position as nature of the circuit owing, in part, to course on complex criminal litigation in the fall research librarian in the Kresge Law the fact that he and several other 2002 semester. Library, which she held for 14 years judges remain involved in academia as Jeanine H. Gozdecki '85, '92 J.D. earned her since her graduation from NDLS, to professors in law schools in the circuit. BA, cum laude, from Notre Dame in 1985,and pursue other activities. In July, she He was honored at University her J.D.from NDLS in 1992. A partner in the moved to Albuquerque, New Mexico, President's end-of-the-year dinner for South Bend office of Barnes & Thornburg since where she will look for an exciting new 25 years of service on the Law School 200 I, she will teach a section of the deposition opportunity that best suits her talents faculty. skills course in the both the fall 2002 and spring and interests. In the meantime, she • THOMAS L SHAFFER '61 J.D. 2003 semesters. will finish a book that she has been has published Review Essay on John writing, study for the February admin- Honorable John H. Harnocha earned his Howard Yoder in volume 16 of the istration of the New Mexico bar exam BA in 1978 from Indiana University South Bend JOURNALOF LAWAND RELIGION. in 1978 and his J.D.from Valparaiso University in and, as an adjunct, teach a course The article reviews Stanley Hauerwas 1982. A judge in St Joseph (County, Indiana) called "Isolated Supreme Court - et a/., THE WISDOM OFTHE CROSS Superior Court since 1999,he will teach a sec- Gender, Race, Religion, Class and (Eerdmans 1999) and John Howard tion of the trial advocacy course in the spring Justice for All?" in the interdisciplinary Yoder, FOR THE NATIONS (Eerdmans 2003 semester. honors program at the University of 1997). He also published: The Irony of New Mexico. Lawyers: Justice in America in volume 70 • TERESA GODWIN PHELPS of the FORDHAMLAWREVIEW;and '73,'75 M.A., '80 PH.D. has been Using the Pervasive Method of Teaching participated in an expert seminar on elected chair of the University's Legal Ethics in a Property Course in vol- reparations for victims of gross human Committee on Women Faculty and ume 46 of the ST. LOUIS UNIVERSITY rights violations, held March 10, 2002, Students. LAWJOURNAL. at the University of Antwerp, Belgium. She presented two writing work- • DINAH SHELTON spent the Her recent publications include shops at the annual meeting of the spring 2002 semester teaching in Protecting Human Rights in a Globalized Council for Appellate Staff Attorneys London at the Notre Dame London World, the lead article in 25 BOSTON in Flagstaff, Arizona, on July 20, 2002. Law Programme. In addition to COLLEGEINTERNATIONAL& • CHARLES RICE spoke at a con- her course work, she lectured at COMPARATIVELAWREVIEW 1 (2002); ference on "Global Family Life" spon- the Universities of Nottingham, With All Deliberate Speed: Case sored by the Population Research Cardiff, Essex and London. She also Management in the European Court of • 28

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MATTHEW J. BARRETT PROMOTED TO PROFESSOR JOSEPH W. THOMAS PROMOTED TO Matthew j. Barrett '82,'85 J.D. has been promoted from associate professor to professor of law. A member of LIBRARIAN the NDLS faculty since 1990, Professor Barrett teaches business-related courses such as business associations, federal taxation and accounting for lawyers. A member of the Ohio bar since 1985,and a certified public joseph W.Thomas, has been promoted to librari- accountant since 1987, he clerked for the Honorable Cornelia G. Kennedy in the U.S.Court of Appeals for an and head of technical services in the Kresge the Sixth Circuit (1985-86), and worked as an associate at the Columbus, Ohio, law firm ofVorys, Sater, Law Library. A member of the library faculty Seymour & Pease (1986-90). since 1989,he began his career In 1997,with Harvard Law Professor David Herwitz, Professor Barrett published the second edition of the at NDLS as a catalog librarian. leading casebook on accounting for lawyers, MATERIALSONACCOUNTINGFORLAWYERS,alongwith the related He became assistant head of teacher's manual. He published an update for the second edition in 1998,and bound technical services in 1992 and supplements in 1999 and 2000. head of technical services in Professor Barrett has served numerous professional organizations including as 1994. He earned his BA from recording secretary of the taxation committee of the Ohio State Bar Association, edi- the University of Kentucky in torial board member of the JOURNALOFliMITEDliABILITCOMPAY NIEchairS, and mem- 1980 and his MALS. from the ber of the MLS Committee on Audit and Association Investment PoliCY,andmember University of Chicago in 1983. of the ABA Section on Business Law,Committee on Law and Accounting. He also He is involved with numerous serves on a number of University and Law School committees. In addition, he assists committees of regional and national professional the Notre Dame LegalAid Clinic with tax and not-for-profit corporation issues, vol- organizations, and often publishes articles and unteers with the Tax Assistance Program sponsored by the University's Mendoza gives presentations on cataloging legal materials, College of Business and advises the South Bend Center for the Homeless on various tax and corporate electronic serials and collection management matters. In 1998,the Student Bar Association awarded Professor Barrett the Captain William O. McLean Community Spirit Award for exceptional contributions to community life,and in 200 I, the graduating class named him the Law School's Distinguished Teacher for the 2000-0 I academic year.

JUAN MENDEZ FEATURED IN BOOK Human Rights and the United States "Dispositional Alternatives and Federal Courts, a lead article in the Juvenile Probation" in Tucson,Arizona, FIGHTINGFORPuBLICJUSTICEbyWesley, j. Smith HUMAN RIGHTS LAWJOURNAL;and in May. The NCJFCJ has also pub- with a foreword by Erin Brockovich, completion of the third edition of lished on interactive compact disk (Washington and Oakland: Trial Lawyers for HUMAN RIGHTS INA NUTSHELLwith Professor Smithburns monograph on Publicjustice) includes a feature on Professor Judge Thomas Buergenthal and David evidentiary issues in cases involving juan Mendez, director of the Stewart. termination of parental rights. The Center for Civil and Human CD has been sent to several thousand • STEVEN D. SMITH has joined Rights. The book comprises sto- judges in the United States and the faculty at the University of San ries about finalists for and win- abroad, as well as to law schools for Diego Law School as a chaired profes- ners of the Trial Lawyers for use in evidence, family-law and juve- sor. The move will allow him to Public justice "Trial Lawyers of nile-law courses. the YearAward" since 1983. pursue his interests in analytical phi- Professor Mendez and several losophy in collaboration with several • JAY TIDMARSH '79 commented co-counsel were chosen as final- professors whom he has known for on class-action issues in a suit filed ists in 1989,for their work in some time who focus on that particu- against MasterCard International and Rapaport v. Suarez Mason, Martinez Baca v.Suarez lar field of research. Visa U.S.A. in an article titled Credit Mason and Forti v.Suarez Mason, three cases Card Giants Charge Class Action in High • J. ERIC SMITHBURN delivered brought under the Alien Tort Claims Act in Court in the April 15, 2002, edition of a lecture and paper titled "Probation California federal courts against a general who the NATIONALLAWJOURNAL. The Conditions and Constitutional Rights: arrived clandestinely in the United States after case is currently before the U.S. Where is the Line?" at the National escaping justice inArgentina. Supreme Court to resolve a conflict Council of Juvenile and Family Court among the federal appellate courts on Judges (NCJFCJ) conference on the standards for class certification. • 29

ADMINISTRATOR & STAFF NOT E S

• Gail Peshel, director of career 2002. The award honors one mem- • Cathy Pieronek '84, '95 J.D., services, presented "Internal ber of the faculty, administration or formerly director of law school Marketing: How to Make the Case staff and one student who has done relations, presented "Title IX and for Career Services" at the National the most to improve the lives of law Intercollegiate Athletics: Myth vs. Association for Law Placement's students over the course of the year. Reality" at the University's Reunion (NALP) 2002 Annual Educational Ms. Hamilton shared this year's 2002 enrichment program, June 7, Conference on April 10, 2002. She honor with 3L Tamona Bright of 2002, and at the annual meeting of also co-authored an article titled Kileen, Texas. the National Association of College What Make Employer Web Sites Work? and University Attorneys, June 26, • Julia B. Meister '95 J.D., director published in the May 2002 edition 2002, in Boston. of student services at NDLS since of NALP's BULLETIN. early 2001, has returned to southern • Best wishes to Nancy • Congratulations to Marilyn Ohio to the active practice of law. Catanzarite, senior staff assistant, Imus, assistant program manager in During her tenure here, she helped who retired from NDLS in June the Center for Civil and Human the Law School regularize a number after 12 years of service as a faculty Rights, and to Deb Fox, acquisi- of functions related to law student secretary. She and her husband Roy tions assistant in the Kresge Law services and student activities plan to travel and to spend lots of Library, who celebrated 15 years of including organizing important time with their children and grand- service to Notre Dame in May 2002. events such as first-year orientation children. and graduation, managing budgets • Congratulations to Law School for over two dozen student organi- Registrar Anne Hamilton, who zations and serving as a counselor to received the Captain William O. students. McLean Award from the Class of

Find1it on me +++ Contact information for individual faculty members is available on the Law School's web site at t www.law.nd.edu/faculty/faculty.html. The site provides hot links with each faculty member's e-rnail address, as well as regular mail and telephone information. • 30

s li UI ID IE N li N o li IE s

Law School Graduation Highlights

espite unseasonably cold weather and Ryan Van Den Elzen of Stevens Point, Wisconsin - with periods of rain, the Law graduated summa cum laude (GPA over 3.8); Ms. Harting School managed to hold its earned the Law School's highest academic honor, the diploma ceremony outdoors as Hoynes Prize, while Mr. DeJulius earned the Dean Joseph part of the University's 157th O'Meara Award and Ms. Hoffman earned the Farabaugh commencement exercises on Prize. Nineteen students graduated magna cum laude (with May 20, 2002, and conferred a GPA over 3.6) and 34 graduated cum laude (with a GPA degrees on 199 graduates. over 3.4). Margaret Munalula earned her On Saturday, the Law School hosted the graduates, J.S.D. degree through the Center for Civil and Human their families and friends, and the faculty, administration Rights, graduating magna cum laude in January 2002, for her and staff at a picnic at the Sacred Heart Parish Center, dissertation titled "The Legitimacy of Sovereign Debt: A north of St. Joseph's lake on the north edge of campus. Case Study of Zambia:' Twelve students earned LL.M. Later that evening, the Law School community participated degrees - one earning magna cum laude honors and one cum in the University's annual Baccalaureate Mass in the south laude honors - from dome of the Joyce the London program Center. in international and The unusually comparative law, with cold Sunday - with a seven traveling to high temperature of 52 Notre Dame to receive degrees - was punc- their degrees personal- tuated by rain showers ly. Fourteen students and threatening skies earned LL.M. degrees all day. The day-long in international human celebration began with rights law through the the prayer service and Center for Civil and hooding ceremony at Human Rights. Sean the Basilica of the B. O'Brien '95, '01 J.D., Sacred Heart, presided '02 LL.M. of South over by University Bend, Indiana, and President Reverend Bernard Duhaime of Edward A. Malloy, St. Laurent, Quebec, Canada, graduated summa cum laude, C.S.c. Reverend John H. Pearson, C.S.c., director of while five others graduated magna cum laude and four gradu- the Law School's Thomas J. White Center on Law and ated cum laude. Government, conducted the solemn ceremony. Afterward, The University conferred the Juris Doctor (J.D.) the graduates made their way next door to the Main Degree on 173 graduates. Seven students - Leon F. Building for a class photo on the building steps. DeJulius Jr. of Davenport, Iowa, Stephanie Sue Harting After box lunches for all in the Law School, students of Dayton, Ohio, Michael John Hayes of Cambridge City, and their guests participated in the University's Indiana, Julie Hoffman of LaOtto, Indiana, Brian Lester of Commencement ceremonies. Tim Russerr, Washington Scottsdale, Arizona, Stephanie Niehaus of Westlake, Ohio, bureau chief for NBC News and moderator of "Meet the • 31

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Press" served as vice president for university relations at Notre Dame. The principal speaker University awarded an honorary doctor of science degree on and received an hon- Helen Rhoda Quinn, physicist at the Stanford Linear orary doctor of laws Accelerator Center, and an honorary doctor of engineering degree. His address, degree on Patrick Toole, retired which focused on senior vice president of IBM the need to take the Corporation. Honorary doctor values learned at of fine arts recipients included Notre Dame and Margaret Bent, musicologist and make the world a senior research fellow at All better place, is avail- Souls College of Oxford able on line at University; Sydney Pollack, www.nd.edu/-prin- motion picture actor, director fo/news/2002/5- and producer; and Cicely Tyson, 19y.html. Reverend Emmy Award-winning actress, John P. Smyth '57, activist and humanitarian. executive director of Despite the touch-and-go weather and warnings from Maryville Academy local meteorologists of the probability of pop-up showers in in Des Plaines, the late afternoon, the diploma conferral ceremony took Illinois, received the place in front of the reflecting pool by the Hesburgh Library. 2002 Laetare Medal, the most prestigious award given to Student Bar Association president Andy Mayle of Fremont, American Catholics, and spoke of the destruction visited Ohio, introduced Professor Emeritus of Law Charles E. on the nation's children by heroin, crack and cocaine. Rice, the recipient of the 2002 Law School Teaching Award, In addition to Mr. Russert, the University conferred who encouraged Notre Dame Law Students to put their honorary doctor of laws degrees on Lord John Browne of education to good use, and to work to protect unborn chil- Madingley, group chief executive of BP Amoco; Alfred C. dren. Dean O'Hara, assisted by Associate Dean Rougeau DeCraene Jr., retired chair and chief executive officer of conferred the diplomas and gave her charge to the class, Texaco, Inc.; which focused on Walter Cardinal the special respon- Kasper, president sibilities NDLS of the Pontifical graduates have to Commission for be that different Promoting kind of lawyer who Christian Unity; makes the profes- Helen Lieberman, sion and society founder and execu- better. tive director of the The day South African non- concluded with a profit organization reception for the Ikamva Labantu: graduates and their Honorable families at South Diarmuid F. Dining Hall, pro- O'Scannlain of viding one last the U.S. Court of opportunity for the Appeals for the graduates, their Ninth Circuit; and families and the Dr. William P. faculty to say Sexton, retiring good-bye. • 32

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Graduation Honors SBA and Students

The following special awards were announced at the Law School's Honored for diploma conferral ceremony: Community Service

Arthur Abel Memorial Writing Competition David T. Link Award Award for outstanding service in the field of social justice n April 11, 2002, at the Leon F. DeJulius Jr. of Davenport, Iowa Myra 1. McKenzie of Slidell, Louisiana annual Dismas House Matthew T. Nelson of Constantine, awards banquet, mem- Edward F. Barrett Award Michigan bers of the SBA's com- for outstanding achievement in the art of trial O advocacy Judge Joseph E. Mahoney Award munity service committee accepted the Andrew M. Hicks of Fair Oaks, Indiana for demonstrating outstanding leadership qualities "Loving Spoon Award" on behalf of all Michelle Chelvam of Houston, Texas NDLS students who participated in Nathan Burkan Memorial Award Michael C. O'Shaughnessy of Wichita, for the best paper in copyright Dismas House programs this year. Kansas Ryan 1. Van Den Elzen of Stevens Point, Dismas House is a live-in community Wisconsin Arthur A. May Award of recently released prisoners, Notre to a member of the Barristers team who Joseph Ciraolo Memorial Award Dame students and others who work demonstrates a commitment to professional ethical to a student who has overcome obstacles to succeed together to reintegrate the former standards and exhibits excellence in trial advocacy in Law School inmates into society. Law students Philip A. Sicuso of Hopkinton, Tamona 1. Bright of Kileen, Texas cooked dinner for the residents on Massachusetts Farabaugh Prize selected Tuesday nights throughout Captain William O. McLean Law School for high scholarship in law Community Citizenship Award Julie A. Hoffman of LaOtto, Indiana to a member of the Law School community Colonel William J. Hoynes Award who has done the most to contribute to the the Law School's highest honor, for outstanding lives of students at the Law School scholarship, application, deportment and Tamona 1. Bright of Kileen, Texas achievement DeanJoseph O'Meara Award Stephanie S. Harting of Dayton, Ohio for outstanding academic achievement International Academy of Trial Lawyers Leon F. DeJulius Jr. of Davenport, Iowa Award National Association of Women Lawyers for distinguished achievement in the art of advocacy Award Andrew C. Baum of Bexley, Ohio for scholarship, motivation and contribution to the the academic year. Committee chair Bernard P. Costello Jr. of Greensburg, advancement of women in society Myra McKenzie, a 3L from Slidell, Pennsylvania Jennifer R. Byrns of South Bend, Indiana Louisiana, SBA vice president Nicole Jessup International Moot Court Award National Clinical Legal Education Borda, a 3L from Mechanicsburg, for excellence in advocacy Association Award Pennsylvania, and lLs Jim Murray of Adrian T. Delmont of Beemer, Nebraska for an outstanding student in the Notre Dame Legal Huron, Ohio, and Brian Josias of Fort William T. Kirby Award Aid Clinic Lauderdale, Florida, represented the for excellence in legal writing Kristina M. Campbell of Concord, dozens of students who participated Kevin E. Barton of Lake Oswego, California throughout the year. Oregon A. Harold Weber Moot Court Award Sunil M. Bhuta of Los Angeles, Research Librarian Lucy Payne for outstanding achievement in the art of oral California 'ss J.D., who accompanied the stu- argument dents to the event, noted, "I was so Dean Konop Legal Aid Award Timothy F. McCurdy of Cumberland, for outstanding service in the Legal Aid and Iowa proud of our law students, whose vol- Defender Association unteerisrn in the South Bend commu- A. Harold Weber Writing Award Tamona 1. Bright of Kileen, Texas nity enabled the Notre Dame Law for excellence in essay writing Mark E. Farrell of Dayton, Ohio School to have a presence at this social Paul A. Wilhelm of Ann Arbor, Michigan John E. Krupnick Award justice event. A big thank you to for excellence in the art of trial advocacy Myra, Nicole, Jim and Brian for their Jacqueline Carroll of Grand Rapids, leadership and to all our many law Michigan students whose service enriches our Thomas E. Day of Ludlow, community!" Massachusetts • 33

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HLSA Presents 2002 Olivarez Award

On AprilS, 2002, woman to receive the Harvard tives from faculty and students. She the Notre Dame University Frederick Sheldon Traveling explained the significance of an affirm- Hispanic Law Students Scholarship, an expense-paid year of ative action case recently decided by O Association presented travel around the world. She currently the Sixth Circuit, Grutter v. Bollinger, the 2002 Graciela Olivarez Award to teaches a traditional legal curriculum, and the role of the University of Professor Margaret Montoya from the but challenges her students to examine Michigan student-interveners. This University of New Mexico Law elements that are often overlooked in case could press the Supreme Court to SchooL This award honors Graciela their casebooks, such as race and gen- explore the constitutionality of consid- Olivarez '70 J.D., the first Latina grad- der, within a legal context. She also ering race as an element in admissions uate in the first class to admit women shared her innovative course work decisions. at Notre Dame Law SchooL Each entitled "Lawyering for Social Change;' Following the award ceremony, year, the students present this award to which is an opportunity for law stu- students and faculty hosted Professor a Latina or Latino who demonstrates dents to create cross-disciplinary, Montoya at an intimate lunch at the leadership and signifi- Morris Inn. cantly contributes to Associate Dean the legal community. Vincent D. Rougeau The students nominat- joined the students in ed Professor Montoya asking questions and for her inspiring men- listening to the sto- torship to law students ries of a life-long across the country, her advocate. Professor outstanding scholar- Montoya made a ship and her dedica- commitment to con- tion to affirmative tinue her relationship action. with the Notre Dame HLSA students students and will noticed Professor exchange ideas on Montoya's remarkable clinical programs and work when one mem- research projects. ber attended the fifth The students' enthu- annual National Latino Steve Marques, ]ulissa Robles, Professor Montoya, Barb Szwed a siastic comments Law Student and Angel Pineda. following the event Conference at Boalt revealed a desire to Hall Law School in the fall of 200l. law-based materials, involving the incorporate her discussion topics into About 50 members of the legal educa- most significant topics for the Latino classroom discourse. Her presence tion community, including administra- community. These materials are at Notre Dame was a blessing that tors, faculty and students, attended the accessed by middle school teachers opened the students' minds and award ceremony to meet the dynamic and employed in their classrooms. created an appetite to promote social critical-race-theory scholar. Professor Professor Montoya's discourse change through legal mechanisms. Montoya's articles dealing with ethnici- focused on empowering students of Professor Montoya's message was clear: ty, gender, language and race are widely color to transform the law. In part, she Knowledge of the law affords great published in books and law reviews focused on the importance of affirma- power, and the way in which law nationally. tive action both for individuals as well school forms students influences how Professor Montoya left an indeli- as for institutions. She believes that students will use that power once they ble mark on her audience as she relat- students benefit from the opportunity graduate. ed the story of her life. She was the to develop academic goals, while insti- first Latina female accepted at Harvard tutions benefit from a richly diverse - ]ulissa Robles, Class of 2004 Law SchooL She then became the first scholarship that elicits new perspec- Lennox, California • 34

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29th Annual Black Law Students of Notre Dame Alumni Weekend

he 29th Annual Black Law Prosecutor's Office, a distinguished vis- The one thing that amazes me Students of Notre Dame iting professor of law, Angela M. about this alumni weekend is how Alumni Weekend was Kupenda, and former much the stu- IIheld on April 5-7 2002. state senator and practic- dents need to This is the longest running black law ing attorney Cleo see alumni students alumni weekend in the coun- Washington. Saturday here. The try. Our theme this year was "Uniting started the day with an comments I Leaders Today to Plan a Successful alumni-student basket- heard most Tomorrow:' With the support of the ball game. Next we held from the Law School Admissions Office, this a round-table discussion prospective year's weekend included 10 admitted focusing on issues relat- students was African-American applicants and their ing to minority recruitment and reten- "Its great to see the alumni here;' and guests, who enjoyed the opportunity to tion at Notre Dame Law School; we "I wish I could meet more alumni." It meet current students and alumni. also discussed the Williams-Lark means so much to both current and The investment paid off. We are Memorial Fellowship, a scholarship prospective students to see successful happy to report that 10 African- program for entering African- alumni like Judge Wilson come back American applicants have committed American students that BLSND has and show us what we can become and to attending NDLS this fall! started, and the BLSND/BLSA name share with us how he got there. It says This year's alumni weekend con- change. a great deal about NDLS when alumni sisted of a The highlight come back year after year to take part panel discus- of our weekend was in the alumni weekend and support sion entitled the annual Alumni current and future students. The "Uniting the Weekend Awards Notre Dame family is alive and well Young Banquet which was and the BLSND annual alumni week- Leaders of held at Greenfield's end is a big part of that family tradi- Tomorrow: Cafe on campus tion. The annual alumni weekend is An Action Saturday night. BLSND's way of saying thanks to all Plan for Our guest speaker, of our alumni and all the people in the Tomorrow's Honorable Charles law school who support us throughout Leaders;' featuring distinguished pan- R. Wilson '76, '79 J.D. of the U.S. the year. We want to thank all those elists such as Marcus Ellison '01 J.D. Court of Appeals for the Eleventh who attended for making this year's of the St. Joseph County (Indiana) Circuit and a member of the Law alumni weekend a tremendous success. School Advisory Council, received our distinguished Alvin C. McKenna - Michele Johnson, Class of 2003 Alumnus of the Year Award. BLSND 2002 Weekend Chair NDLS 3Ls HONORED AS Tampa, Florida ASSISTANT RECTORS

Three NDLS third-year students received honors from the University's Office of Student WLF AUCTION PROCEEDS SET NEW RECORDS Affairs for their work as assistant rectors in the undergraduate residence halls. Sean The Ninth Annual Women's Legal Forum Auction, held April 12,2002, at Monterastelli of Blue Springs,Missouri,was the Alumni/Senior Club on campus, raised a record $6,000 to support selected as men's assistant rector of the year for YWCA of South Bend,and to fund a summer fellowship for a student his work in Keenan Hall. Kate Whalen of who will be engaging in public-interest work focused on providing legal Lincoln,Rhode Island,was selected as women's assistance to women. Nicole Homan, a 2L from Muskegon, Michigan, assistant rector of the year for her work in organized the event. Items auctioned included meals with various Howard Hall. Peyton Berg of Kalispell,Montana, faculty members and their families,a signed copy of the RICO statute, earned a special recognition award for leadership ND football tickets and a car wash by a faculty member. for his work in St Edward's Hall. • 35

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PILF Dunk Tank ~orts Service

ILF's first-ever "dunk tank;' held April 29 on the lawn in front of the Law School, raised $476 to support stu- IP dents engaged in low- or non-paying public service jobs during the summer. Thanks to Research Librarian Lucy Payne '88 J.D. - the only faculty member actually to get dunked - and to Assistant Professor Rick Garnett and Career Services Counselor Alexandria Lewis, who provided generous matching contributions to avoid the tank. Students who braved the water - and their classmates' throwing arms - on the cold April afternoon included 1Ls J.J. Gonzales of Beaverton, Oregon, Jason Linster of Aurora, Illinois, and Jim Murray of Huron, Ohio, as well as incoming SBA president Bryan Wise of Orange, New Jersey.

Students Elect Leaders for 2002-03

Congratulations to the newly elected SBA officers for Class of 2003 Honor Council Representatives: 2002-03: Jane Dall of Ferdinand, Indiana Kate Meacham of Pittsburgh, Pennsylvania President: 3L Bryan Wise of Notre Dame, Indiana Mike O'Connor of San Bruno, California Vice President: 2L Susan Brichler of Phoenix, Arizona Secretary: 3L Larry Ward of Johnstown, Pennsylvania Class of 2004 Honor Council Representatives: Treasurer: 3L Adam Witmer of Bellefonte, J.J. Gonzales of' Beaverton, Oregon Pennsylvania Ken Kleppel of Concord Township, Ohio Ben Whipple of Grand Rapids! Michigan Class of 2003 SBA Representatives: Amy Averill of Richmond, Virginia The incoming Class of 2005 will elect SBA representatives Casey Dick of Buchanan, Michigan and Honor Council members in September. Rebecca McCurdy of Grosse Pointe Park, Michigan

Class of 2004 SBA Representatives: Carah Helwig of Peoria, Illinois Michael Hom of Setauket, New York LaWanda Spearman of Detroit, Michigan • 36

s H LA

Law Students Bring Home University Softball Championship

ontinuing on a successful SPORTS REPORT run for the Law School in the 2001-02 Grad/Faculty/ Staff athletic league, a Law School team comprised 3Ls Earn Softball Championship for 2002 mostly of 3Ls defeated last year's softball champs from the Department of he annual faculty-student softball tournament was held Chemistry to bring home the softball Saturday, April 20, at Stepan Fields. As reported by Rick crown for 2001-02 in addition to the Garnett, the faculty team was "crippled by injuries and flag-football and basketball champi- (excused) absences of such stalwarts as Joe Bauer, John Nagle, onships. "Quan' team members Lucy Payne, Dwight King, Warren Rees and, of course, John included 3Ls Peyton Berg of Kalispell, Finnis," Nevertheless, "the faculty team managed to avoid humiliation in Montana, and T.e. Couhig of the opening game, losing to the first-year team 11-2:' In his opinion, the Painesville, Ohio, as co-captains, and final score makes the game sound worse than it was, and even character- 3Ls Pat Dahl of Winnetka, Illinois, ized it as a "moral victory:' David Krupski of Ponce Inlet, Florida, The faculty team came through in the second game against the 2L Kevin Lohman of Northridge, team, however. As Professor Garnett reports, "Mike 'The Taxrnan' California, Fred Marczyk of Egg Kirsch teamed up with fellow audit-rneister Matt 'The Bat' Barrett to Harbor City, New Jersey, Ethan lead the faculty team to a 6-5 win over the second years. Granted, the McKinney of Mishawaka, Indiana, and game was shortened for various reasons, and we did have one student, Art O'Reilly of Mahopac, New York, Eric Kniffin, on the roster, but a win is a win. In one inning, Mike single- handedly made every put-our, and generally put on what can only be described as a fielding clinic. "As usual, we received rock-solid performances from Patti Ogden, Roger Jacobs and Dan Manier. Lefty Brian 'Spouse of Lisa' Casey was flawless at second base, notwithstanding the lack of a left-handed glove. And Julian 'Shades' Velasco joined his fellow new- bie Mike with some impressive offen- sive production:' Greg Nielsen, the SBA's athletic commissioner, provided the balance of the event reporting. "As a 2L, I would love to be able to tell a tale of glory about our team, but unfortunately, along with 2L Carlos Abeyta of that wasn't the case;' as the 2Ls lost to both the 3Ls and the faculty Lubbock, Texas, and undergraduates team. Ultimately, the 3Ls prevailed as champions for 2002 by beating Mike Garofola and Nick Sciola. the lLs in the second round. • 37

ND Lawyers Make a Difference in Professional Sports

evin Warren '90 J.D., general counsel and senior vice president of business operations for the NFLs Detroit Lions, was profiled in an article titled Detroit Lions Hope Top Lawyer Can Help Bring Championship Mentality to Team in the May 6, 2002, edition of CRAIN'S DETROIT BUSINESS. Law Students Honored by Mr. Warren has also become of counsel to the Alumni Sports RecSports Detroit office of Honigman, Miller, Schwartz and Cohn, L.L.P., as a member of the firm's corporate Notes law department. L Peyton Berg of Kalispell, Coquese Washington '92,'97 J.D., assistant Montana, and 2L Natalie coach of the Notre Dame women's basketball team and point guard for the Wight of Portland, Oregon, WNBA's Houston Comets, writes a "Hoop Clinic" column on women's profes- have been selected as the sional basketball for the bi-monthly WOMEN'S BASKETBALLmagazine. Grad/ Faculty / Staff Participants of the Year by the University's Department of Athletics RecSports Office. Softball World Series

Double-Domer Changes outh Bend East Side girl's Stadium "Seating" 11-12 softball team made it to the softball World Series or those alumni who prefer in Portland, Oregon, this to relive their student days summer, achieving a fourth- when attending Notre Dame place finish in a tough field of competi- home football games, double- tors. As the team progressed through domer Paul Noonan '93, various competitions this summer, '96 J.D. has initiated what will be a both locally and regionally, several welcome change - for both those individuals with NDLS connections who like to sit and prefer unobstructed played prominent roles. Jeff Jankowski views of action on the field as well as '84,'87 J.D., father of player Erin those who like to stand while cheering Jankowski, served as one of the coach- for their team. He and two other ND es along with Peter Gillis, husband of alumni e-rnailed University Athletic Lucinda (Cindy) Gillis '89 J.D. and Director Kevin father of player Maria Gillis. White to suggest Tina Jankowski, assistant setting aside a por- director of Law School tion of the stadi- administration and Erin's um specifically to mother, engaged in her usual accommodate efficient coordination efforts, alumni who, like making sure the team members got where they needed to be, cleaning current students, the uniforms and leading the cheering section. want to stand for Representing the Central Region in the competition, the South Bend the entire game. Named "Alumni team lost in the semifinals to last year's first-place team, the South Region cham- Alley;' the concept will debut this fall pions. Nevertheless, the team and their coaches and other supporters made on a small scale - for 900 to 1,200 South Bend (and NDLS) proud, making it so far in their very first appearance in fans who will be selected by lottery for the series. They also enjoyed a special treat, being among those specially recog- tickets in a section adjacent to the stu- nized by President George W. Bush during his recent visit to South Bend. dent section. Congratulations! • 38

A L UI M\ N N o li IE s

• Paul Meyer, chief executive officer of Clear CLASS OF 1965 LISTSERV ADDRESSES Channel Outdoor, Inc., in Phoenix,Arizona, Secretary: Honorable John D. O'Shea and member of the Notre Dame Law Law School all-alumni: Association board of directors, was honored by [email protected] • John W. Beatty, a partner with Dinsmore his undergraduate alma mater, Saint Mary's Center for Civil and Human Rights alumni: & Shohl in Cincinnati, Ohio, received the University of Minnesota, April 23, 2002. He [email protected] 2002 Community Service Award from the received an honorary doctorate in ethical lead- London LL.M. alumni: Cincinnati Bar Association, which recognizes ership and gave a talk titled "Be Ethical and Be ndlaw·[email protected] members of the association who have per- Successful" as part of the fourth convocation of formed extraordinary volunteer service to the the Hendrickson Institute for Ethical To join any NDLS listserv, please send an Cincinnati community. Mr. Beatty has served Leadership at Saint Mary's. e-mail to [email protected]. on numerous civicand arts organization boards including: Cincinnati Art Museum, Cincinnati Art Academy, Cincinnati Institute CLASS OF 1969 WEB ADDRESS of Fine Arts, 2001 Fine Arts Fund, Community Chest, Community Chest Foundation, United Listserv: [email protected] Law School alumni web site: Way of Cincinnati, Archdiocese of Cincinnati Secretary: James L. Starshak http://www.nd.edu/ -ndlaw/ alumni/ alumni.html Catholic Social Services, Andrew Jergens James L. Starshak has agreed to take over class sec- Foundation,Children's Psychiatric Center and retary duties from Scott Atwell, who served in the Cincinnati Symphony Orchestra. CLASS OF 1952 position for the last several years. If you wish to con- • Michael J. Flaherty, a partner in Flaherty tact him to submit information for the class notes • Honorable Tobias Barry was featured & Shea in Buffalo, New York, has been elected column in NOTRE DAMEmagazine, you may contact in an article titled Tobias Barry: Congenial vice president of the Erie County (New York) him at P.O. Box 656, Honolulu, HI 96813-4450, Dissenter in the July 15, 2002, of the Illinois Bar Bar Association. He will assume the by phone at (808) 523-2515, by fax at (808) Association's Bar News. The article recounts presidency of the association next year. 523-0842, or bye-mail [email protected]. his career as a judge and notes that he "sets an example for his fellow and sister judges ... by his work, by his efforts to improve the admin- CLASS OF 1967 CLASS OF 1970 istration of the law, by his integrity, by his Secretary: John K. Plumb warm companionship, and by his persistent Secretary: James J. Olson dedication to physical fitness:' Judge Barry was • Louis W. Brenner, formerly with the • Joseph J. Jankowski has been elected to the honored by the Illinois State Bar Association Brenner Law Firm, Ltd., in Minneapolis, management committee of Wilentz, Goldman as an ISBA senior counselor in July. Minnesota, has joined Hovland Real Estate, & Spitzer, a 140-attorney firm headquartered Inc., in Naples, Florida, as manager of the in Woodbridge, New Jersey. Mr. Jankowski firm's sales and leasing office in Bonita Springs, also co-chairs the firm's Real Estate,Land Use, CLASS OF 1960 Florida. Environmental and Leasing Department. Secretary: John A. DiNardo

• Hugh McGuire, a sole practitioner in Troy, Michigan, has been elected president of the Macomb County, Michigan, chapter of Habitat IN MEMORIAM for Humanity.

Pleaseremember the followingdeceased alumniand their familiesin your prayers: CLASS OF 1961 John S. Montedonico '35, '36 J.D., April 21,2002, Killen,Alabama Secretary: John N. Moreland Robert E. Gartland '38 J.D., July 12,2002, Niles,lIlinois • David H. Kelsey, founding partner of Edward L. Boyle Jr. '38, '39 J.D., May29,2002, Mesa,Arizona Atkinson & Kelsey in Albuquerque, New Charles J. O'Brien '40 J.D., October 14,200 I,Canton, Ohio Mexico, was profiled in an article titled Law Arthur A. May '47 J.D., June 21,2002, Granger, Indiana Firm Shapes Family Practice in the April 15, William R. Ethridge '48, '51 J.D., January 28,2002, Westlake, Ohio 2002, edition of the ALBUQUERQUEJOURNAL. James R. Kelly '52 J.D., June 5,2002, Columbia,Maryland Mr. Kelsey's lO-attorney firm is the oldest and Lt. Col. William A. Loy '54, '58 J.D., April 12,2002, Peru,lndiana largest family law firm in New Mexico and is John J. Haugh '66 J.D., April I, 2002,Vancouver,Washington tied for fifth-largest among family law firms in Frederick M. Miller '81 J.D., July 30,2002, Grosse Pointe Farms,Michigan the United States. We have also received belated notice of the death of Bruce W. Callner '74 J.D., January 17,200 I, Decatur, Georgia. • 39

ALUMNI N o T E s

• Andrew P. Napolitano, formerly with CLASS OF 1971 Epstein, Becker & Green, P.c., in Newark, CLASS OF 1980 New Jersey, has joined Fischbein Badillo Secretary: E. Bryan Dunigan III Secretary: Honorable Sheila M. O'Brien Wagner Harding in the £irm'sNew York, • Honorable Michael P. Scopelitis, of the New York, office. • DanielJ. Buckley, a partner in Breidenbach, St. Joseph (County, Indiana) Superior Court, Buckley, Huchring, Halm & Hamblet in • Eugene E. Smary, a partner at Warner attended the General Jurisdiction Instructional Pasadena, California, has been appointed by Norcross & Judd, L.L.P., in Grand Rapids, Program at the National Judicial College, sup- California Governor Gray Davis to the Los Michigan, and a member of the board of direc- ported by a scholarship awarded by the State Angeles County Superior Court. tors of the Notre Dame Law Association, has Justice Institute. been elected chair-elect of the ABA'sSection on Environmental Law. CLASS OF 1981 CLASS OF 1972 Listserv: [email protected] Listserv: NDLAW-1972@/istserv.nd.edu CLASS OF 1978 Secretary: Robert]. Christians Secretary: Richard 1. Hill Secretary: vacant; please contact the Law School • Nancy J. Gargula, formerly a partner in • Alfred A. Lechner Jr., a partner at Morgan, Relations Office to volunteer the Indianapolis, Indiana, office of Baker & Lewis & Bockius in Princeton, New Jersey, has Daniels, has been appointed by U.S. Attorney • Jeffrey A. Lichtman, of Trolman, Glaser & been named to the Infractions Committee of General John Ashcroft as U.S. trustee for Lichtman in New York, New York, has begun the National Collegiate Athletic Association. Indiana and central and southern Illinois. his one-year term as president of the New He is one of two public members on the com- York State Trial Lawyers Association. mittee, and will also sit on the Infractions Committee for Division II and III institutions. • Patrick A. Salvi, founder of Salvi, Schostok CLASS OF 1982 & Pritchard, P.c., has been inducted as a fel- Secretary: Frank Julian low of the International Academy of Trial CLASS OF 1974 Lawyers. Membership in the academy is by • Diana Lewis, a partner in the West Palm invitation only, is limited to 500 trial lawyers Beach, Florida, office of Carlton Fields and a Secretary: Christopher Ku/e from the United States, and has members in member of the University's Board of Trustees, • Lawrence Schwarz, assistant district over 30 countries around the world. has announced her candidacy for judge in Palm attorney in Nassau County, New York, and a He recently secured a $2.55 million set- Beach County, Florida. colonel in the U.S. Army Reserves JAG Corps, tlement in a medical malpractice case involving has been called up for a six-month assignment the wrongful death of an lS-year-old who CLASS OF 1983 in the counsel's office for the chair of the Joint received inappropriate treatment for atrial Chiefs of Staff in Washington, D.C., where he flutter. Listserv: [email protected] will oversee government contracting, among Secretary: Ann Burford Merchlewitz other responsibilities. CLASS OF 1979 • David Hasper, formerly with Miller, Johnson,Snell & Cummiskey in Grand CLASS OF 1975 Secretary: M. Ellen Carpenter Rapids, Michigan, has joined the Grand • Stan Cardenas, of Cardenas Financial Rapids office of Miller, Canfield, Paddock & Listserv: [email protected] Services Consulting in San Francisco, Stone as a senior attorney practicing in the Secretary: Dennis Owens California, has been named to the advisory areas of commercial real estate law, commercial j • Reverend E. William Beauchamp, C.S.C., board of National Closing Solutions, a full- leasing transactions, condominium law and formerly executive vice president emeritus at service real estate settlement, vendor manage- general business transactions. the University of Notre Dame, has been ment and post-close servicing company. • Ann E. Merchlewitz, vice president and named senior vice president at the University • Christopher Larmoyeux, a partner at general counsel at St. Mary's University of of Portland in Oregon. His areas of responsi- Larmoyeux & Bone in West Palm Beach, Minnesota, has been elected to the board bility at the university, which is run by the Florida, has been appointed to the Florida of directors of Merchants Bank, based in I Congregation of Holy Cross, will include the Arts Council by Florida's Secretary of State Winona, Minnesota. She is the first woman division of university relations and the depart- Katherine Harris. He is president of the Palm elected to the board in the l26-year history of ment of athletics. He will also serve as the Beach County Cultural Council and a member the bank. university's investment officer and, in that of the Academy of Trial Lawyers of America. role, will assist the investment committee of Portland's board of trustees.He will also over- • Mark G. Olive, who practices personal CLASS OF 1984 see the university's legal affairs and coordinate injury law with Sieben, Grose, Yon Holturn university planning. & Carey in Minneapolis, Minnesota, was Secretary: Cathy Chromulak voted a "super lawyer" by attorneys throughout • Kevin Luby, managing parrner with Adams, Minnesota for the sixth consecutive year since Helzer, Uffelman & Luby in Beaverton, the survey was inaugurated in 1996 by the legal Oregon, is a candidate for a judgeship on the trade magazine MINNESOTALAW& POLITICS. Washington County (Oregon) Circuit Court. The election will be held in late May. • 40

ALUMNI N o T E s

• Timothy G. Merker, formerly with Landau, • Lester N. Fortney has been elected a direc- Omahana & Kopka, Ltd., in Chicago, has CLASS OF 1989 tor of the Webb Law Firm in Pittsburgh, formed Tucker, Bower, Robin & Romanek, Pennsylvania. Web site: http://alumni.nd.edu/-Iaw1989/ L.L.c., also in Chicago, where he is a partner. Secretary: Jennifer O'Leary Smith • Robert A. McMahon, formerly with Thompson, Hine & Flory in Cincinnati, Ohio, • Gregory Evans, formerly with McKenna & has formed Eberly McMahon Hochscheid, CLASS OF 1985 Cuneo in Los Angeles,California, has joined L.L.c., a Cincinnati-based firm representing the Los Angeles office of Orrick, Herrington & Listserv: [email protected] businesses and individuals throughout Ohio Sutcliffe as a partner. His practice focuses on Web site: http://alumni.nd.edu/-law85/ and Kentucky in litigation matters including telecommunications litigation and on assisting Secretary: Tom Nessinger creditors' rights, commercial litigation, prod- clients with governmental affairs and public ucts liability, real estate, employment and • Kathleen Cerveny, formerly with Reed policy. personal injury. Smith in Fairfax, Virginia, has joined the McLean, Virginia, office of Miles & • Judson Montgomery, a member of Givens Stockbridge as a partner. She focuses her CLASS OF 1991 Pursley, L.L.P., in Boise, Idaho, was named one work on emerging-growth companies and of 40 Accomplished Business Leaders Under Forty Secretary: Martha Boesen public and private securities offerings. in the March 18,2002, edition of THE IDAHO • J. Aloysius Hogan has been promoted to BUSINESSREVIEW. • Karen Keltz, a partner at Shannon, Gracey, legislative counsel for Senator Jim Inhofe (R- Ratliff & Miller,L.L.P., in Dallas, Texas, direct- Oklahoma). His responsibilities now include • Kevin M. Moran, formerly counsel and ed and moderated the annual meeting of the legislative assistant to U.S. Senator John Kyl working with the senator on appropriations, insurance section of the State Bar of Texas, (R-Arizona), has been named director of the commerce, agriculture, and energy and natural- June 14,2002, in Dallas. Washington, D.C., office of the Western resources issues. He has worked on Capitol Governors' Association. Hill in various capacities since 1995.

CLASS OF 1986 • Lt. Col. Ronald R. Rarron, U.S. Air Force, formerly stationed in the U.S. Sending State CLASSOF 1992 Listserv: [email protected] Office for Italy at the U.S. Embassy in Rome, Web site: http://alumni.nd.edu/-Iaw86/ Secretary:Paul Drey Italy, is now stationed at the YalcotaAir Base Secretaries: Glenn Schmitt and Don Passenger near Tokyo, Japan. • Erik V. Huey, formerly with Manatt, • Elizabeth Amorosi, formerly assistant Phelps & Phillips in Washington, D.C., has • Stacy Gerber Ward, formerly a shareholder U.S. trustee for Arizona, based in Phoenix, has become of counsel in the D.C. office of with Cook & Frank, S.c., in Milwaukee, been appointed acting U.S. trustee for Arizona. Venable, where he will be part of the firm's Wisconsin, has become an assistant U.S. attorney for the Eastern District of Wisconsin, also • Susan J. Link has been elected to the part- national communications practice. nership at Maslon Edelman Borman & Brand in Milwaukee. • Sarah Ney, formerly with Preaus Roddy & in Minneapolis, Minnesota. She focuses her Krebs in New Orleans, Louisiana, has joined practice in the areas of estate planning, pro- the New Orleans office of McGlinchey CLASS OF 1994 bate, trust administration and tax law. Stafford as an associate practicing with the Secretary: P. Douglas Duncan firm's consumer financial services litigation

CLASS OF 1988 group. • Chris Graddock, formerly with Long Weinberg in Atlanta, Georgia, is now a litiga- • Michael D. RechtinJr. has been named Secretary: Lisa Visingardi tor with Nix, DelCampo, Thornton & counsel in the Chicago, Illinois, office of Graddock in Decatur, Georgia. • Anne E. Becker, utility consumer counselor Mayer, Brown, Rowe & Maw, where he for the State of Indiana, has been appointed focuses his practice on real estate matters. to the Energy Security and Electric Industry CLASS OF 1995 Restructuring Forum of the Consumer Energy Council of America. CLASS OF 1993 Listserv: [email protected] Secretary: Julia Meister • Beth DeBauche, formerly associate com- Listserv: [email protected] missioner of the Southeastern Conference, Secretary: Charley Hegarty Julia Meister has agreed to take over class secretary has been named assistant chief of staff for duties from Kurt Merschmann, who has served the • Patrick L. Emmerling, formerly with Division I at the National Collegiate Athletic Class of '95 well for seven years. She will be respon- Cohen Swados in Buffalo, New York, has Association, headquartered in Indianapolis, sible for providing a regular column of class notes to joined the Buffalo office of Jaeckle Fleischmann Indiana. In this new position, she will work & Mugel, L.L.P., as a partner in the firm's NOTRE DAME magazine, and can be reached at with the Division IBoard of Directors and the [email protected]. Estate and Trust Practice Group. He focuses Management Council, in addition to two his practice on estates and trusts, federal gift • John O. Beanum, formerly with Brobeck, Division I cabinets. and estate taxation, and elderlaw. Phleger & Harrison in Los Angeles, California, with a number of other attorneys has formed the Los Angeles office of Clifford Chance Rogers & Wells, L.L.P. • 41

ALUMNI N o T E s

CLASS OF 1996 CLASS OF 1998 2002 GRADUATE TO Secretary; Marie Prein Web site; http;//alumni.nd.edu/-law98/ CLERK FOR CHIEF Secretary; Mike Rafford JUSTICE • Kristen Fletcher, director of the National Sea Grant Law Center/Mississippi-Alabama • John Cerone, executive director of the Leon F.DeJulius '02 J.D. has been named a Sea Grant Legal Program at the University of War Crimes Research Office at American clerk to Chief Justice of the United States Mississippi Law School, gave the keynote University's Washington College of Law, has address, titled "Fix It! Constructing a William Rehnquist for the 2003-04 term. Mr. been busy speaking and writing on various Recommendation to the Ocean Commission aspects of the subject of war crimes. His arti- DeJulius earned his B.S.B.A.in finance, magna for the Future of Fisheries;' at the National cles, talks and interviews - too numerous to cum laude, from Saint Louis University in Fisheries Law and Policy Symposium at Roger list here - are described more fully in the Missouri in 1997, where he was a member of Williams University Ralph R. Papirro School May-June 2002 edition of NDLS Update, Pi Kappa Alpha fraternity. He earned his J.D., of Law,June 28, 2002. available on the Law School's web site. summa cum laude, from Notre Dame Law School • William K. Sjostrom Jr., currently legal • Bryan Lord, formerly with Testa, Hurwitz in 2002, where he also earned the Dean Joseph counsel for Genmar Holdings, Inc., in & Thibeault in Boston, Massachusetts, has A. O'Meara Award for his academic achievement. Minneapolis, Minnesota, has accepted a posi- joined AmberWave Systems Corporation in While at Notre Dame, he served as editor-in- tion as a ten ure-rrack professor at the Salmon Salem, New Hampshire, as director of corpo- chief for the NOTREDAMELAwREVIEW,andas P. Chase College of Law at Northern Kentucky rate development and legal affairs. executive editor of the National Symposium University in Highland Heights, Kentucky. He • Michael S. Raiford, formerly with Snell Editorial Board for the HARVARDJOURNALOFLAw will teach contracts, corporations and securi- & Wilmer in Phoenix, Arizona, has joined ties regulation. & PUBLICPOLICY. Hypercom Corporation, also in Phoenix, as Mr. DeJulius will clerk for Honorable Diamuid in-house counsel for the company, which F. O'Scannlain, U.S. Court of Appeals for the CLASS OF 1997 makes electronic payment equipment such as Ninth Circuit, in Portland, Oregon, prior to point-of-sale terminals. He also received an beginning his work with the U.S Supreme Court Secretary; Erica Anaya award from the Arizona Bar Foundation as one of the top 50 pro bono attorneys in Arizona. in late 2003. He will be the sixth Notre Dame • Melissa C. Brown, an associate in the Law School graduate since 1994 to clerk for the Chicago, Illinois, office of Foley & Lardner, has nation's highest court. co-authored When You Become a Target of the CLASS OF 1999 SEC, published in the spring 2002 issue of DIRECTORS& BOARDSmagazine. Lisrserv. [email protected] • Martin A. Foos, has completed his Website; • Kathleen Ley-Bruinsma, formerly an clerkship with Honorable Christopher http;//www.geocities.com/Heartland/Trail!3096/ associate with Lovells in Chicago, Illinois, has Neuchterlein in South Bend and has returned Secretary: Steve Boettinger joined the Chicago office of Dykema Gossett, to the practice of law at Faruki, Gilliam and P.L.L.c., as an associate, and will focus her • Timothy M. Bliss, formerly with Powers Ireland in Dayton,Ohio. He received the practice on consumer and commerciallitiga- Kinder Keeney in Providence, Rhode Island, "Diamond in the Rough" award from the tion matters. has joined Tillinghast Licht Perkins Smith & South Bend Center for the Homeless for his Cohen, L.L.P., also in Providence, where he work in preparing formerly homeless individu- • RaymondJ. Tirtrnan, an associate at Paul, focuses his practice on labor and employment als for their GEDs. Hastings, Janofsky & Walker, L.L.P., in San law. Francisco, California, has been interviewed • J. Joseph Rossi has been elected sharehold- by the Bay Area affiliate for Fox News, the • Basil Buchko, formerly with Recka and er at Smith Haughey Rice & Roegge in Grand OAKLANDTRIBUNEand the CHRISTIANTIMES Joannes, S.c., in Green Bay,Wisconsin, has Rapids, Michigan, where he practices in the regarding Bill Simon's campaign for governor joined Whyte, Hirschboeck Dudeck, S.c., in area of general civil litigation, governmental of California. Manitowoc, Wisconsin, as an associate focus- law and employment law. ing his practice on corporate law. • William F. Zieske, an associate in the • Michael L. Schrenk, formerly a partner Chicago, Illinois, office of Ross & Hardies, • Michelle Mack ('00 LL.M.), working with with Cozen O'Connor in Seattle, Washington, P.c., published JULIE, Digger and Liability for the International Committee of the Red Cross has joined St. Paul Insurance Company as Damage to Buried Utilities in the July 2002 edi- (ICRC) in Belgrade, has been transferred to in-house counsel in Baltimore, Maryland. tion of the ILLINOISBARJOURNAL.He focuses the ICRC's relief team in Jerusalem. Her work • Kelly Smith, formerly with Smith Mullin, his practice on oil and gas and public utility will involve starting up operations to facilitate P.c., in Montclair, New Jersey, has joined tort litigation, as well as on general commercial the ICRC's efforts to bring food and non-food Reitman Parsonnet in Newark, New Jersey, litigations. aid to the area. where her practice focuses on plaintiff's • Adriana Nakis, formerly with Stairs employment law as well as on union labor Dillenbeck Finley Merle in New York, New work. York, has joined Vezina, Lawrence & Piscitelli in Tallahassee, Florida, as an associate. • 42

ALUMNI N o T E s

• Alex Nakis, formerly with Dewey Ballantine in New York, New York, has joined Gray Harris & Robinson in Tallahassee, NEW ADDITIONS Florida, as an associate.

• Kurt Rademacher, with Butler, Snow, Please welcome the newest members of the NDLS fami~: O'Mara, Stevens & Cannada, P.L.L.C., in Lee (Illig) Joly '89 J.D. and her husband Tom announce the birth of Nathaniel Lee, November 16,200 I, Jackson, Mississippi, published Eliminating inVancouver,British Columbia. Double Tax on Your Business in the January / February edition of PLANNINGNOTES Catherine Gregory '90 J.D. and her husband Rickannounce the birth of Michael Richard, May 13,2002, MAGAZINE.He spoke to the Jackson Tax in Farmington, Connecticut. Forum on "The Tax Implications of Converting Maura Doherty '91 J.D, and her husband Steve Delano announce the birth of Cori Ruth, October 29,2001, to an S Corporation" and to the Butler Snow Tax Seminar on "Tax Avoidance Techniques on in Quincy, Massachusetts. S Corporation Conversions:' William Fair '93 J.D. and his wife Lorianne announce the birth of Natalie, January 14,2002, in Chicago,lIlinois. CLASS OF 1999 (LL.M.) Bridget Healy '93 J.D. and her husband Rob Schoenig announce the birth of John, February 8, 2002, in Highland Park,lIIinois. • Meg Penrose, assistant professor of law at Oklahoma University in Norman, has just Julie Garvey Davis '93 J.D. and her husband Marc announce the birth of ElijahJames, February 20,2002, been voted the "Most Outstanding" professor in Chicago,llIinois. by the school's students. In addition, she received an "Arkansas Traveler" award from the William F. Dugan '95 J.D. and his wife Jennifer announce the birth of Emma Elizabeth,November 13,200 I, governor of Arkansas for her work with police in Chicago, Illinois. officers and school officials in the state, as part Kara Murphy '95 J.D. and her husband Glenn Kempf '84 announce the birth of their son, Sorin, of her work with the National Center for December 20, 200 I, in Seattle,Washington. Missing and Exploited Children and the U.S. Department of Justice. This summer, she Chris Pardi '95 J.D. and his wife Mary announce the birth of Catherine Rose,July 30,2002, traveled throughout Europe surveying what in Northville, Michigan. remains of many of the Holocaust sites in Germany, Austria, France and Holland. Mike Schrenk '87, '95 J.D. and his wife Danielle announce the birth of Ryan Edward, April 22,2002, in Seattle,Washington.

CLASS OF 2000 Steve Hieatt '96 J.D. and Jennifer Fraley Hieatt '96 J.D. announce the birth of John Paul,April 2,2002, in Cincinnati, Ohio. Secretary: Brian Murray Michael S. Rafford '93, '98 J.D. and his wife Kelly '93 announce the birth of Sean Michael, Brian Murray has agreed to take over class secretary January IS, 2002, in Phoenix, Arizona. duties from Mark Busby, including providing a regu· lar column for NOTRE DAME magazine. He may be Edward Williams '00 J.D. and his wife Jillannounce the birth of Julia Margaret, May 3,2002, contacted at [email protected]. in Lansing,Michigan. • Peter Breen, who is studying for the priest- Michael Hays '02 J.D. and his wife Jenny announce the birth of Seth Micah,July 2,2002, hood at Mundelein Seminary in Illinois, has in South Bend,lndiana. been selected to study theology in Rome, Italy, for the coming academic year. He will take an intensive, six-week course in Italian this summer in Brooklyn and will leave for Rome at the end of August. • Akram Faizer, an associate at Mackenzie • Gabe Tsui, formerly an associate at Vedder, Hughes, L.L.P., in Syracuse, New York, has Price, Kaufman, Kammholz in Chicago, • Danny Cevallos, formerly with Fish & been awarded the President's Pro Bono Service Illinois, has joined Mayer, Brown, Rowe & Neave in New York, New York, has joined Hanna S. Cohn Young Lawyer Award by the Maw, also in Chicago, as an associate. His Piper Rudnick, L.L.P. His practice focuses New York State Bar Association. practice focuses on tax litigation. on products liability defense and he will be based out of the firm's office in Philadelphia, • Roger Mattioli has been promoted to cap- Pennsylvania, although he will also work out of tain in the U.S. Marine Corps. He is a judge the firm's New York offices from time to time. advocate stationed at the Marine Corps Air Station in Cherry Point, North Carolina. • 43

ALUMNI N o T E s

CLASS OF 2000 - LL.M.

• Xiaosheng Huang, formerly with Jon Eric CLASS REUNIONS FOR 2003 Garde & Associates in Las Vegas, Nevada, has joined the Law Offices of Albert C. Lum, also in Las Vegas, where he practices asylum law. He has also been admitted to the New York • If your class is eligible for a reunion in 2003 - that is, if your bar and reports that he is the first Mandarin- speaking American lawyer in Las Vegas. class year ends in "3" or "8" - we look forward to seeing you at the University's Reunion 2003, the weekend of June 5~8,2003. CLASS OF 200 I Members of the 50th anniversary class of 1953 will be invited to Listserv: [email protected] Secretary: Jonel! Lucca special ceremonies hosted by the University to commemorate • Paul Dean has joined Warrick & Boyn in Elkhart, Indiana, as an associate. the occasion. Information on reunion weekend activities is

• Melonie Jurgens, a general-litigation associ- available on the Notre Dame Alumni Associations web site at ate with White & Case in New York, New York, was featured in an article titled Externship http:// alumni.nd.edu/reunion/index.html. On-line registration Draws Law Firm Lawyers to Counsel Women in the July 12, 2002, edition of the NEW YORK will be available in the spring, or you may call the Alumni LAWJOURNAL. The article discusses her four- month service with inMotion, formerly the Associations reunion office directly at (574) 631~6000. Network for Women's Services, representing indigent, working-class and immigrant women, and how that experience has benefitted her work at White & Case. • The NDLS Class of 1968, under the lead- • The NDLS Class of 1998, under the ership of Tom Curtin, is proposing a 35th leadership of Mark Kromkowski, hopes for • Jonell Lucca has completed her clerkship anniversary reunion for the NO-Michigan a strong turn-our for the fifth anniversary with the Supreme Court of Idaho and has State home football weekend, September reunion during the University's spring reunion joined the Maricopa County (Arizona) 19-20,2003. To help with the planning or for celebration in June. Contact Mr. Kromkowski Attorney's Office in Phoenix. more information, please contact Mr. Curtin directly at: • Marjie McCanta is working with the directly at: Coordinated Legal Education, Advice and Wildman, Harrold, Allen & Dixon Referral (CLEAR) system of the Northwest Graham, Curtin & Sheridan Suite 300 Justice Project. CLEAR provides free legal 4 Headquarters Plaza 225 West Wacker assistance on civil matters for low-income P.O. Box 1991 Chicago, IL 60606-1229 residents of the state of Washington. Morristown, NJ 07962-1991 phone: (312) 201-2000 • Thomas Pasuit has completed his clerkship with Honorable Raymond Lyons, in the U.S. phone: (973) 401-7117 fax: (312) 201-2555 fax: (973) 292-1767 e-rnail: Bankruptcy Court for the District of New e-mail: [email protected] Jersey, and has joined Connell Foley, L.L.P., in [email protected] Roseland, New Jersey, as an associate. Class members interested in attending the home football game should be sure to con- NDLA MEMBERS tribute $100 to the University or the Law School before the end of calendar year 2002 in • Philip J. Faccenda '51, formerly general order to receive a lottery application for fall counsel for the University, has been named a 2003 football tickets. Class members may wish life fellow of the American Bar Association, to designate contributions to the Class of 1968 which recognizes the top one-third of 1 per- Law School Fellowship, established at the time cent of attorneys whose professional, public of the 30th reunion to commemorate deceased and private careers have demonstrated out- members of the class. standing dedication to the welfare of their communities and to the highest principles of the legal profession. • 44

News FROM THE NOTRE DAME LAW ASSOCIATION

A Message from the NDLA President

Dear Notre Dame Lawyer:

I am delighted and honored to serve as president of the Notre Dame Law Association for the 2002-03 year. My several predecessors deserve sincere thanks and congratulations for their efforts on behalf of our association and the Law School. Since the reorganization of NDLA several years ago, much has been achieved. Alumni presence in the operation of the Law School has been consid- erably strengthened. Under the auspices of NDLA, approximately 10 students are funded each summer for public interest law fellowships; considerable efforts have been and are being devoted to the identification and selection of incoming students; numerous seminars, talks and workshops have been sponsored and staffed by alumni for the benefit of Notre Dame Law School students; better coordination with the national undergraduate alumni association is under way; regional elections have been established to bring on board enthusiastic alumni committed to the activities of NDLA; and before she joined the College of Engineering, Cathy Pieronek worked tirelessly to assist and coordinate our activities. For the first time, NDLA will present to alumni in the fall of 2002 those various awards previously described in this magazine. More and more Notre Dame alumni are joining these activities. I encourage you to be among them. There are endless opportunities to devote some of your time, treasure, and/or talent, in whatever order they might be available to you and whatever the stage of your career. Help sponsor a summer fellowship in your community; represent Notre Dame Law School at an undergraduate career fair; have lunch with an accepted student who has not yet decided on whether to attend Notre Dame; join in the efforts of your local Notre Dame Club to assist the working poor in preparation of their taxes; nominate a wor- thy graduate for an NDLA award; do what the Spirit moves YOU to do in the name of Notre Dame. Notre Dame Law School's mission of service and responsibility is printed for all to see in its publications and catalogs. It is articulated on a daily basis by the administration, faculty and staff. However, it finds its strongest living presence in, by and through Notre Dame students, faculty, alumni and friends who accept its message and incorporate its essence into their daily personal and professional lives. It is by this means that Notre Dame and its mission become a vibrant witness to the Gospel in a very troubled world. We were all blessed who have had the opportunity to spend time at Notre Dame during the formative stages of our professional lives. We owe it to ourselves and our legal heritage to repre- sentwell each and every day'rhe tradi "on, spirit arrd legacy of Notre Dame and its mis ion.

Yours in Notre Dam,

Paul Mattingly Preside t, 2002-03 Notre lDame Law Association • 45

Congratulations to NDLA Honors Alumni with Election Winners 2002 NDLA Awards

Congratulations to the following, who won the 2002 NOLA At its spring meeting, the Notre Dame Law Association elections. Each successful candidate will serve a three-year board decided to honor four NOLA members for their serv- term beginning on July 1, 2002. Thanks to all who ran for ice to Notre Dame, the Law School, the profession and their making this a successful election process. community. The recipients of these inaugural awards, cho- Region 2 sen because they represent the highest ideals for which Colorado, Montana, New Mexico, Utah, Wyoming and Westem Canada (Calgary) Notre Dame lawyers strive, were honored by the association Brain Bates '79, '86 J.D. at the time of its fall board meeting, October 11, 2002. Denver, Colorado • To Dean Emeritus David T. Link '58, '61 J.D., the Edward F. Murphy Award, for Notre Dame lawyers who have distinguished them- Region 3 selves in the profession of law, exhibited the highest standards of profes- Arizona,Southern California, Southern Nevada and Mexico sional competence and compassion, been guided by the high moral and David C. Scheper '85 J.D. religious values Notre Dame represents, devoted themselves in service to Los Angeles, Califomia their church and have a reputation for being ethical, professional and Region 7 faithful to moral and religious values. Michigan • To Don Wich '69, '72 J.D., the Reverend William E. Lewers, C.S.C., Eugene Smary '75 J.D. Award, for Notre Dame lawyers who have made outstanding contribu- Grand Rapids, Michigan tions in the area of civil and human rights, social justice or pro bono legal services. Region 10 New Jersey, Southem Connecticut, Southern New York • To Carl Eiberger '52, '54 J.D., the Reverend Michael D. McCafferty, Alfred J."Jim" Lechner '72 J.D. C.S.C., Award, for individuals who have rendered distinguished service to the University of Notre Dame, including those who have expended Princeton, New Jersey substantial time and effort as part of alumni association activities, raised Region 12 substantial funds for the University, or been an outstanding faculty DebwJre, EDstem Pennsylvania, Maryland, Virginia,Washington, D.C. member or administrator at the Law School, whether or not a graduate Gregory Shumaker '87 J.D. of the Law School. Washington, D.C. • To Jim Flickinger '71 J.D., the St. Yves Award, for Notre Dame Region 13/14 lawyers who have rendered outstanding service or contribution to the area of public-interest law. Named after St. Yves, one of the patron A1abama,Arkansas, Louisiana, MiSSissippi, Oklahoma, Tennessee, Texas saints of lawyers, the award aims to create awareness of and support for Scott T. Beall '89 J.D. public-interest law. Recipients are lawyers who have devoted substantial Memphis, Tennessee time and effort to the practice of or support of social justice in the law. Examples of such efforts include the private practitioner or corporate The following regions will be up for election in 2003, for counsel who encourages a client to act responsibly or who volunteers three-year terms beginning July 1,2003: professional services outside the scope of paid practice; the government employee who ensures that a public agency acts with the requisite con- Region I - Alaska, Hawaii, Idaho, Northem Califomia, Northem Nevada, cern for the public good; the legislator or legislative staff member who Oregon, Washington drafts and works to enact just law; the judicial clerk, prosecutor or public Region 8 - Indiana (excluding northwest Indiana), Kentucky defender who works to ensure justice for all parties involved in criminal actions or civil disputes; and those who provide financial support for Region 9 - Ohio, Westem Pennsylvania, West Virginia such efforts.

Region 16 - Chicago (Cook County) If you would like to nominate a colleague or friend for an Region 18 - Northem New York, Eastem Canada (foronto) NOLA award in 2003, please contact:

To represent a region, you must be a resident of that region Mr. Charles A. Weiss, Chair and must be a member of the Notre Dame Law Association. NOLA Awards Committee If you are interested in learning more about these opportu- Bryan Cave, LLP nities, please contact the Law School Relations Office. 3600 One Metropolitan Square Nominations for the 2003 elections close on September 15, St. Louis, MO 63102-2750 2002. Ballots will be mailed in January 2003 to all NOLA members. phone: (314) 259-2000 fax: (314) 259-2020 e-mail: [email protected] • 46

NEWS FROM THE NOTRE DAME LAW ASSOCIATION

N DLA Supports Student Service

Thanks to the generosity of Notre Dame Law Association members and Notre Dame Alumni Clubs throughout the country, eight NDLS students had the opportunity to engage in service work in the summer of 2002 at agencies across the country. Alumni - both through individual alumni and through contributions from the Notre Dame Alumni Clubs in Denver and Detroit - raised $32,000 to support these eight students. AmeriCorps grants - provided through the Holy Cross Associates program with the assistance of the University's Center for Social Concerns - offered an additional $1,000 in financial support to the students involved in these projects. Following is a list of the students who helped to serve the public thanks to the commitment on the part of the Notre Dame Law Association to make this program a success:

City Program Student Sponsor

Cincinnati, Ohio Hamilton County Public Defender Catherine Lockard Paul Mattingly '75 J.D.

Denver, Colorado Legal Aid Society of Colorado Rachel Mordecai-Izikson Brian Bates '79, '86 J.D. Notre Dame Club of Denver

Detroit, Michigan Legal Aid and Defender Association Rebecca McCurdy Robert S.Krause '66 J.D. Notre Dame Club of Detroit

Los Angeles, California Attorney Paul Hoffman (pro bono work) JessicaPongratz various alumni donors

Morris County, New Jersey Morris County Legal Aid Nicole Bayman Richard D. Catenacci '62, '65 J.D. Thomas R.Curtin '68 JD

New York, New York Legal Aid Society of New York Ryan Blaney James S.Carr '87 J.D. Kelley,Drye & Warren

San Diego, California San Diego Volunteer Lawyers Project Regena Baxter Michael Witton '92 J.D. Ross,Dixon & Bell

Washington, D.C. Archdiocesan Legal Network Erica Kruse Heather McShane '96, '99 J.D. David Pruitt '92, '99 J.D. Gabriela Teodorescu

If you are interested in helping to secure a position for an NDLS student in your area for the summer of 2003, please contact Paul Mattingly, 2002-03 president and chair of the NDLA's Public Interest Committee, as soon as possible:

Mr. Paul Mattingly Dinsmore & Shohl 1900 Chemed Center 255 East Fifth Street Cincinnati, OH 45202-3172

phone: (513) 977-8281 fax: (513) 977-8141 e-rnail. [email protected] • 47

L A w s c HI o o L

: News from Law School Admissions

Alumni have assisted the Admissions Office in a number of ways this past spring Max Siegel 'S6, '92 J.D. and summer in enrolling the Law School Class of 2005. With more than 500 Eugene E. Smary '69 M.A., '75 J.D. candidates admitted from this year's pool of 2,890 applicants, alumni offered valu- Scott Sullivan '76, '79 J.D. Jeremy Trahan '96 J.D. able assistance in contacting and meeting with potential students. More than 50 William Walsh '95 J.D. alumni agreed to host luncheons for admitted candidates during the month of Zhidong Wang '94 J.D. March, with nearly 100 admitted candidates accepting this invitation. Charles A. Weiss '6S J.D. Additionally, alumni throughout the nation contacted admitted candidates by Honorable Ann Claire Williams '75 J.D., phone, letter and e-rnail. These efforts, similar to the alumni-hosted luncheons, '97 LL.D.(Hon.) were intended to provide potential NDLS students with the opportunity to learn Honorable Charles Wilson '76, '79 J.D. about the Law School so that the candidates would make the best possible choice S. David Worhatch '79 J.D. when selecting what law school to attend. Honorable Mary Yu '93 J.D. Sean Yuzwa '0 I J.D. Luncheons for Admitted Patricia Haim 'S4 J.D. Candidates Scott Hapeman '0 I J.D. Phone, E-mail, and Personal Mary Hartigan '9 I J.D. Contact with Admitted Kevin Hasson '79, 'S2 M.A., 'S5 J.D. Carlos Acosta '90 J.D. Candidates Travis Almandinger '99 J.D. Richard Jordan '70 J.D. Thomas Keller '92 J.D. Thomas Antonini '85, '88 J.D. Lee DeJulius '02 J.D. Douglas Kenyon '76, '79 J.D. Elena Baca '92 J.D. David Petron '0 I J.D. Robert Krause '66 J.D. Brian Bates '79, '86 J.D. Margaret Ryan '95 J.D. Bruce Baty '79, '82 J.D. Alfred J. Lechner Jr.'72 J.D. Scott Beall '89 J.D. David C. Link '81, '86 J.D. Alumni also lent their support to the Robert Berry '63 J.D. Bryan Lord '98 J.D. Law School's admissions efforts in a Stephen Boettinger '90, '99 J.D. James Lynch '83 J.D. Rebecca Brown '0 IJ.D. Susan Lyndrup '0 I J.D. number of other ways. Doug Kenyon Thomas Burns '71 J.D. Alicia Matsushima '97 J.D. '76, '79 J.D., returned to the Law John Cadarette '83 J.D. Paul Mattingly '75 J.D. School in February to address admit- Timothy Carey '73, '80 J.D. Thomas McCusker '65, '69 J.D. ted candidates as part of the annual Ellen Carpenter '79 J.D. Paul Meyer '67 J.D. Fellowship Weekend, a special recruit- Cynthia Morgan '99 J.D. James Carr '87 J.D. ment program for admitted candidates Stasia Mosesso '96, '00 J.D. Arther Carter '92 J.D. who were awarded full and near-full Christopher Mugica '00 J.D. William Cavanaugh Jr. '84 J.D. fellowships by the Law SchooL Bob Gregory Cozad '85 JD./M.B.A. Sara Oberlin '0 I J.D. Greene '69 J.D., hosted a picnic at his Honorable N. Patrick Crooks '63 J.D. Anthony Patti '90 J.D. home for entering students from Thomas R. Curtin '68 J.D. David Petron '0 I J.D. upstate New York during July. Lee DeJulius '02 J.D. Vanessa Pierce '96 J.D. Paul Drey 'S9, '92 J.D. Michael Pietrykowski '79, 'SO M.A., '83 J.D. Honorable David J. Dreyer '77, 'SOJ.D. David Reed '94 J.D. For More Information Frank Eck 'S9 J.D. Diane Rice '80,'83 J.D. Kimberly Esmond '99 J.D. Scott Richburg '95 J.D. If you would like to participate in this Matthew Feeney '79, '83 J.D. Edward Ristaino 'S4 J.D. year's student recruitment efforts, David Rivera '99 J.D. John Fitzpatrick '81 J.D. please contact Janet McGinn '84 J.D., Andrea Roberts '94 J.D. Nancy Gargula '81 J.D. in the Admissions Office, at (574) Joseph Romero Jr.'S6 J.D. Teresa Giltner '86 J.D. 631-6626 or [email protected]. Gregory Gorski '79 M.A., '82 J.D. Charles Rose '93 J.D. Gary Gottschlich '71 J.D. Margaret Ryan '95 J.D. - Charles W. Roboski, Robert M. Greene '69 J.D. Martin Schreier '95 J.D. Director of Admissions Michael Grossman '78 J.D. James Shea '95 J.D. Karen Grundy '90 J.D. Thomas Shumate IV '98 J.D.