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COKU 3n XT nw QTW9< in brief Number 49 Inside this issue. Published three times a year by the Case Western Reserve University School of Law for alumni, students, faculty, and friends. Editor Kerstin Ekfelt Trawick Professor Mehlman on Director of Publications and External Affairs Underservice: The Faculty Editor Wilbur C. Leatherberry Patient’s Perspective Professor of Law Contributing Editor Elizabeth Hlabse Photographers Mike Sands Kerstin Ekfelt Trawick Professor Jensen on Buffalo Law Law School Administration Peter M. Gerhart (216) 368-3283 Dean Daniel T. Clancy (216) 368-3308 Vice Dean Melvyn R. Durchslag (216) 368-3293 Associate Dean for Academic Affairs Remembering JoAnne Urban Jackson (216) 368-.')139 Sidney Jacoby Associate Dean for Student and PosbJ.D. Programs Barbara F. Andelman (216) 368-3600 Assistant Dean for Admissions and Financial Aid Debra Fink (216) 368-6353 Associate Director of Career Planning Two New Kerstin Ekfelt Trawick (216) 368-6352 Endowment Funds Director of Publications and H External Affairs Scott R. Lange (216) 368-4495 Director of Development Robin L. Meinzer (216) 368-6355 Development Officer Adrienne Potts (216) 368-6363 Coordinator of Continuing s Legal Education Faculty Notes Betty J. Harris (216) 368-3280 a Registrar Ann Marcy (216) 368-6350 a Director of Budget and Human Resources

Case Western Reserve University School of Law Copyri^^it Case Western Reserve I Si University All rights reserved. I Design: Design Assocyttes, I Cleveland, Ohio I Manufactured by the Schaefer Printing I Company, Cleveland, Ohio. The Dean Reports

I know that our graduates and friends are deeply inter­ ested in the strength of our educational program and the quality of the intellectual life of our students. 1 also know that our graduates and friends are gratified by the great progress the law school has made over the past two decades, and that you are committed to an even stronger program and an even better education for our students. What 1 do not yet know is how good you want us to be.

By any measure, we can be proud of the work of our graduates, our students, and our faculty. Our graduates provide leadership to law firms, corporations, govern­ ment agencies, and other institutions around the coun­ try. They serve our society well. Our student body is drawn from all over the country (currently, from twenty- eight states), from all of the best undergraduate schools, and from a wide variety of prior careers. The faculty are recognized around the country for their scholarly writ­ ing and their professional activities. I cannot prove it, but I would be surprised if even a dozen law schools can claim the uniformly high quality of classroom teaching that we have, or such a vibrant intellectual atmosphere rations and moving as quickly as possible to achieve outside the classroom. We are very, very good. And we them, we should rank ourselves high, and outside sur­ ate getting better. veys and rankings should not especially bother us.

Yet when rankings of law schools are published, we are But the U.S. News survey was based in part on a series of not always listed among the top twenty-five. Should that reputational surveys conducted both inside and outside bother us? of academia, and our reputation is important. Aside from the fact that it influences our sense of well being, how 1 was forced to ponder that question recently when the others perceive us affects our future because it affects U.S. News and World Report issued its ranking of the top our continuing ability to attract top students, employers, twenty-five law schools in the country and did not faculty, and new resources. Moreover, the U.S. News rank­ include us. Nor did they recognize us as one of the “up ings were also based on a factual analysis of law school and coming” law schools. We have to suppose that we operations. While facts are only a distant proxy for qual­ are in some never-never land in the law school hierarchy: ity, an analysis of them can tell us interesting things we are already up and already arrived, but not in the top about some differences between our school and other twenty-five. It was some consolation to remember that schools, and about our ability to influence the rankings. just a little over a year ago a survey conducted by Of Counsel magazine found us among the top twenty-five Of the four factual categories measured by U.S. News, we schools from which law firms around the country look must be among the top law schools in two. 1 cannot for associates. It was also some consolation to remember imagine that many schools have a significantly better that there are now perhaps as many as forty law schools placement rate (94 percent) or a significantly better generally agreed to be very good, so that trying to select graduation rate (96 percent) than we do. In another cate­ which ones beyond the “name” schools to include in the gory-institutional resources—we score well in some top twenty-five is to draw a fairly meaningless line. indices and poorly in others. Our student-faculty ratio Clearly, if we are not in the top twenty-five, the distance (18:1) is certainly quite competitive, but we are less between “us” and “them” is insignificant. competitive in terms of total dollars spent per student, and we are simply not competitive in terms of volumes Still, one must consider the significance of the U.S. News and volume equivalents in the library. rankings.

Fortunately, none of those measures is a certain indica­ We all know—even U.S. News and World Report knows — tor of quality. We know that our library has a good col­ that one cannot measure the quality of education by lection and that our investment in electronic information numerical indices, and that reputation surveys are pale sources makes the relative paucity of volumes increas­ images, generally out of date. We know that law schools ingly irrelevant. We are, after all, fifth in the country in differ in their strengths and their character, and that the amount that we spend on electronic databases and, different schools are best for different types of people. by any measure, a leader among law schools in the elec- As long as we are satisfied that we are setting high aspi­

in brief May 1990 tronic library movement. Our commitment to get infor­ cycle, and increase our recognition enough to increase mation to people when and where they want it should be our recognition further? Of course we can. We are well enough to move us to the top rank. Similarly, we may be on our way. But we must first decide whether we want spending less per student than the schools ranked by U.S. to. News, but we may be more efficient, with lower overhead and less waste. 1 have no doubt that our alumni outside of Ohio would love to see our national reputation increase. They are, But we have to acknowledge that there is some truth in after all, more dependent on our national reputation than the U.S. News figures. In particular, 1 would judge that all Ohio alumni are. Ohio alumni know of our quality of the private schools (and some of the public schools) because they see so many of our graduates in action and because they know that our reputation in this part of the in the U.S. News survey have significantly larger endow­ ments than ours, making them less dependent on tuition country is unparalleled. They rub up against our quality and better able to keep up with, for example, inflation in every day. To Ohioans our national reputation may not library materials and the need for scholarship aid for seem so important. students. To a large extent, what differentiates “us” from “them” in terms of the rankings game is simply a matter But it is. Our national reputation is important because of money. improving it is the best way to insure the long-term health of our law school. By improving our national

The fourth category analyzed by U.S Afetcs—student reputation we will insure a steady stream of qualified selectivity—is the one that most plagues our claim for applicants far into the future, and improved placement recognition. For whatever reasons, for the last fifteen opportunities for our graduates, which will generate still years or so we have not attracted the number of appli­ more applicants; we will insure our ability to attract and cants that other first-rate law schools have. We can point hold outstanding faculty. The entire process becomes to declining demographics within our region and we can self-regenerating. 1 do not mistake reputation for real blame the national reputation of Cleveland, but we can­ quality, but an enhanced reputation will allow us to con­ not ignore the facts. That is why since 1 became dean 1 tinue to improve the quality of our program far into the have said that our first goat must be to make ourselves future. more attractive to more applicants across the country. That is why the fund-raising campaign that we are As you know, we have successfully turned the situation launching as part of the $350 million Campaign for Case around. Our student body has remained strong—an Western Reserve University is so important. The only exceptionally bright, energetic, and committed group. thing standing between us and the national recognition Each year for the last two years, applications to our that we deserve is money. We now have the opportunity school increased by more than the average for our region to find the resources that will place us, unmistakably, and the nation. This year our applications will be up by among the nation’s select law schools. 1 look forward to 14 percent, roughly twice the national average. Were we talking to all of our alumni and friends about those ranked in terms of the increase in applications, we would opportunities. Our challenge is to think in important be ranked very high indeed. new ways about the national role of our law school, and to find the resources that make that role a reality.

But stories like those in U.S. News come back to haunt us, for they influence our reputation and thus our ability to Peter M. Gerhart attract the very applicants who will help us to improve Dean our reputation in the future. Can we break through the

If you failed to order a directory before publication, An Omission from we have some extra copies available. The price is $20, the Alumni Directory which includes postage and handling. Make check payable to CWRU and mail to Office of External Af­ After repeated apologies because it was behind sched­ fairs, CWRU School of Law, J1075 East Boulevard, ule, we can report that the law school’s 1989 Alumni Cleveland, Ohio 44106. Directory finally did get printed and mailed. But we must apologize now for its omission of a 1988 gradu­ ate, Barbara Goldberg Rosman of Warren, Ohio. The computer did it (of course), but it was a human error ' A Note of Acknowledgment that misled the computer. We apologize to Barbara Through an editorial oversight, the article by Profes­ sor Jonathan L. Entin that appeared in the last issue Rosman, and we assure one and all that she really is a graduate of this institution. of In Bne/'failed to carry a note on prior publication. “Psychiatry, Insanity, and the Death Penalty” first Except for the no-longer-current address information appeared in the Journal of Criminal Law and Criminol­ that is inevitable with a highly mobile population, this ogy, Volume 79, Issue 1, published by the Northwest­ is the only directory error that we know of—so far. If ern University School of Law. We thank the editors for you have found other problems, please bring them to permission to reprint it, and we apologize for omitting our attention. the acknowledgment in the last issue.—K.E.T.

Case Western Reserve University School of Law Underservice: The Patient’s Perspective

So the evidence of economically-motivated underservice by Maxwell J. Mehlman is not overwhelming. One reason may be that this type Associate Professor of Law of underservice occurs, if at all, primarily at the mar­ gin—that is, the patient care withheld is of relatively any different perspectives are represented little importance to overall patient welfare. If this is the within the health care system: physicians, case, then why are we as patients so concerned? The nurses, hospital administrators, third-party answer is that, in the first place, any incentive for insti­ payers, and so on. Yet there is one perspective tutional providers and practitioners to act contrary to that virtually all of us share: the patient’s perspective. the interests of their patients to further their own eco­ All of us at some point in our lives may be patients. nomic self-interest conflicts with their fiduciary duties. Even in the absence of hard data, we are concerned One of the most serious concerns that we as patients about whether we as patients can trust our caregivers. have is underservice. To put it simply, underservice Furthermore, we are not convinced that the only care means getting too little care. Some people, such as many cut in response to these pressures is care at the margin. working poor, get too little care because they are un- or Clearly some patients die as a result of underservice, underinsured. Some providers may unintentionally pro­ and we do not know whether the underlying cause is vide too little care. mistakes in judgment or economic pressures.

But probably the most significant reason for underser­ Now it may be objected that, even if some underservice vice is economic pressure from third-party payers such results from payment systems designed to control costs, as private insurers and government entitlement pro­ we are no worse off than we were under previous pay­ grams. These pressures are part of payer efforts to con­ tain health care costs. For example, “capitated” or ment systems that pressured providers to overserve patients. Reimbursement methods like fee-for-service “prospective” payment systems, which pay a lump sum create their own set of perverse incentives: when pro­ regardless of the frequency or intensity of services, in viders receive more payment for more care, they have an effect reward providers in proportion to how little care incentive to subject patients to unnecessary risks. Are they provide. Utilization review can give rise to direct we patients not at least as well off now under capitated financial incentives and to more subtle forms of pressure or prospective payment? on individual physicians to reduce referrals, hospitaliza­ tions, and length of stay. In fact, it has been estimated From the perspective of an actual patient, the answer is that 20 percent of health maintenance organizations no. To understand why, let us imagine a practitioner (HMO’s) have physician incentive programs in which a under a fee-for-service system. Let us assume that he physician’s remuneration is based in part on the degree correctly understands that, under fee-for-service, his net to which he withholds service from patients. revenue increases the more care he furnishes, and that he is interested in maximizing his own income. Let us What evidence is there on the prevalence and impact of also assume that he would resist providing care that this type of underservice? Robert Schiff in 1986 calcu­ would be harmful to the patient—that is, he would not lated that 87 percent of patients transferred from one willingly subject the patient to a risk that outweighed hospital to another are transferred for economic reasons, the expected benefit—and that he does not wish to but he did not attempt to measure the effect of these increase his own income at the patient’s expense. Under transfers on patient outcomes. John Fitzgerald,' however, fee-for-service, this practitioner will begin by providing found in 1987 that the mean length of stay for patients care that is of substantial net benefit to the patient and with hip fractures dropped from 16.6 to 10.3 days after that provides more benefit than it costs. Then, since the the Medicare prospective payment system was imple­ system by which he is paid induces him to provide more mented; there was a 50-percent decrease in physical and more care, he will provide care that is increasingly therapy for these patients, and a 200-percent increase in the number of patients who were still institutionalized in expensive. At some point the cost of the care might be deemed to exceed the benefit, but to the extent that the nursing homes six months after discharge. The General patient is insured, this cost/benefit disparity will not be Accounting Office calculated that 6.6 percent of Medi­ a significant concern to the patient: the cost will be care patients under the prospective payment system spread across all those insured, while the patient retains receive poor care, and that 80 percent of the problem the benefit. can be attributed to the omission of necessary medical services. But since the GAO did not compare these find­ Let us now take the perspective of the same patient in a ings with the quality of care received by patients before system that rewards providers for reducing care. Again, the adoption of the prospective payment system, it is we will assume that the practitioner wishes to maximize impossible to tell how much of this underservice is due his own welfare and to provide care that benefits the to economic pressures under the prospective payment patient. The physician will begin by eliminating any care system and how much to inadvertent errors of medical judgment.

in brief May 1990 that costs more than it is worth in patient benefit. To motivations caused the patient to be discharged too the extent that the patient is insured, the savings will be soon. Premature discharge of patients can lead to such spread across all insured persons. The patient himself sanctions as civil monetary penalties and disqualifica­ will receive only a small share of the benefit of reduced tion from the Medicare program. Another administrative costs but will lose the entire benefit of the care that has approach to the underservice problem is the anti-dump­ been denied. And once the practitioner eliminates care ing provisions of the Comprehensive Omnibus Budget that is too costly, he will still face an economic incentive Reconciliation Act of 1985, which authorize the inspector to cut care. At this point, the only care that he can cut general of the Department of Health and Human Services will be care that provides the patient with greater bene­ to penalize providers who transfer patients inappropri­ fit than it costs. The practitioner may resist this pres­ ately from their institution to another. sure, but unlike the practitioner under fee-for-service, he cannot increase both his own welfare and his patient’s. But government remedies raise two problems. First, the For this reason, as patients we have more to fear from government is the largest single third-party payer; it has underservice—which threatens to deprive us of care that a strong incentive to reduce health care costs. Relying is umrth the cost—than from overservice. on it to prevent underservice is a little like relying on the proverbial fox to guard the chickens. Second, sanc­ What can we do to allay our concerns? One answer is to tions under the PRO and anti-dumping programs cannot penalize a provider who succumbs to economic incen­ be imposed without an extremely expensive legal proce­ tives to underserve. For example, if any provider who dure. This may explain why, as of January 31, 1988, only expected to get an extra $100 by underserving a patient two civil monetary penalties had been levied against were made to forfeit $100 instead, that provider would providers for violating the anti-dumping provisions of the have no motivation to underserve. How might patients law. impose these costs on underserving providers? One way is by suing them. This would not be just a simple mal­ Another approach to the problem of underservice is to practice suit, with the plaintiff alleging that the provider rely on informed patients to choose appropriate pro­ acted unreasonably. In addition, the patient could accuse viders. According to this approach, patients should be the provider of acting in bad faith by placing his own told by their providers or by their providers’ competitors financial interests above the welfare of the patient. If about the risk of underservice; then they can decide successful on the bad faith charge, the plaintiff would be whether or not to accept the risk. For example, a patient entitled to punitive damages, which could be substan­ considering whether or not to join a particular health tially greater than the compensation received in a simple maintenance organization ought to be told whether the malpractice case. HMO gives financial incentives to its physicians to reduce hospitalization. Advertisements aimed at patients Since the promise of punitive damages makes these law­ might seek to assure them that a particular provider suits quite lucrative, one may wonder why so few of institution does not underserve—e.g., “We will discharge them have been brought. The answer is that it is no patient before his time.” A patient who does not wish extremely difficult for a patient to prove that she was to accept the risk of underservice would be free to seek injured because the provider acted in bad faith and not care from a provider operating under a fee-for-service because he merely made an unreasonable mistake. If system, although perhaps at a higher cost. concerns about underservice grow, the courts may con­ ceivably be willing to shift the burden of proof in such Disclosure is a classic legal response to conflicts of cases from the plaintiff to the defendant. In other words, interest of the type created by economic incentives to once the patient showed that she was injured as a result underserve. Indeed, the House Committee on Govern­ of substandard care furnished by a provider who was ment Operations is considering whether to require pro­ subject to economic incentives to underserve, the pro­ viders under Medicare and Medicaid to obtain the vider would have to prove that the substandard care was patient’s informed consent before he can be transferred due to an error of judgment rather than to the effect of from one hospital to another. the economic incentives. This would be extremely diffi­ cult for the defendant to prove, just as it is presently But there is a problem with relying on patient informa­ difficult for the plaintiff to prove that the defendant’s tion and choice to solve the problem of underservice. It actions were the result of bad faith rather than incompe­ may not be possible for a patient to obtain alternate care tence. If courts were to shift the burden of proof in this from a fee-for-service provider. The patient may not be way, we would see a dramatic increase in provider liabil­ able to afford the additional cost or may not have time to ity for underservice. shop around. In any event, as patients we are likely to be profoundly disturbed when we are told by our health From the patient’s standpoint, however, lawsuits are not care providers that, in effect, they have a financial incen­ an entirely satisfactory solution to the problem of under­ tive to sacrifice our health for their own economic gain. service. Private legal remedies are expensive to pursue.

And if they strip economic benefit from providers, they A better alternative•> is to focus^ on the underlying eco­ transfer much of that benefit not to patients, but to nomic incentives themselves. It is unlikely that the new attorneys. prospective payment system and other cost-containment efforts will be dismantled, and that the clock will be Instead of relying on private lawsuits, patients might rolled back to the days when providers were reimbursed turn to public adpiinistrative mechanisms, at least for on an unlimited, fee-for-service basis. Cost constraints care provided by publicly-funded programs such as Medi­ on institutional providers are necessary evils. But we care. For example. Medicare’s watchdog agencies—the can and must resist imposing these economic pressures peer review organizations, or PRO’S—presently are on physicians. As patients, we must be able to continue required to examine 25 percent of hospital readmissions to trust our doctors to look after our interests exclu- that occur within 31 days of discharge; some of these readmissions may have occurred because economic

Case Western Reserve University School of Law sively, and to err, if at all, by providing care that is too In the short run, however, providers and payers are still expensive from the perspective of third-party payers. faced with the imperative to reduce costs. What can they do to control costs in a way that does not place them at In fact, we are already taking steps to insulate physicians odds with physicians? In the first place, they can spon­ from cost-containment pressures. The Omnibus Budget sor technology assessment to uncover expensive technol­ Reconciliation Act of 1986, for example, prohibits “know­ ogies that provide little or no patient benefit. (These ingly making a payment, directly or indirectly, to a physi­ efforts can be in the form of relatively inexpensive con­ cian as an inducement to reduce or limit services” to sensus conferences, rather than extremely expensive Medicare and Medicaid patients. Furthermore, there is randomized clinical trials.) Technology assessment that significant resistance to paying physicians on a capitated identifies inappropriate expensive technologies can legit­ or prospective basis under Medicare. imately be used by payers to resist physician and patient demands for them. Furthermore, providers and third- Indeed, the law is willing to uphold the role of physicians party payers can encourage the development of clinical as allies of patients in resisting pressures to underserve. protocols defining what is appropriate care in specific This is the thrust of the recent Wickline case in Califor­ cases. These too can be used to discourage expensive nia, in which the court stated that, in caring for their care that is inappropriate. patients, physicians may not defer to cost constraints imposed by third-party payers. The judges emphasized The concept of a physician-patient alliance whereby the that payers and institutional providers act at their peril power of physicians is increased and aligned with if they override the physician’s orders in order to reduce patients’ interests may seem a precarious solution to the costs. problem of underservice. Physicians and patients may feel caught between powerful forces; constant readjust­ The Wickline approach helps restore some of the power ment may be needed to take account of shifts in the that physicians have lost to institutional providers and relative power of payers, institutional providers, physi­ third-party payers since the advent of serious efforts to cians, and patients. But what at first appears precarious constrain health care costs. Physicians should welcome may turn out to be the most stable solution in tbe long it. An alliance with physicians will be welcomed by run. It is nothing less, after all, than a system of checks patients as well. It reaffirms the traditional role of the and balances—a system which has successfully sus­ physician as caring and trustworthy. And, in the long tained the nation since its founding and which just might run, a physician-patient alliance is likely to be good for work for health care. payers and institutional providers as well, since it will help to rationalize care and to increase patient satisfaction.

About Professor Mehlman

This has been a busy year for Max Mehlman—so busy and productive that the standard author’s note could scarcely do him justice. In fact, he could have provided material for half a dozen separate stories in this issue. What follows is a condensation and compression.

First, the facts of an author’s note. Mehlman graduated from Reed College in 1970, won a Rhodes Scholarship, earned a second B.A. degree at Oxford, then took his J.D. at Yale. After nine years with Arnold & Porter in Wash­ ington, he came to CWRU in 1984 as an assistant profes­ sor. For two years he was associate director of the Law-Medicine Center; in 1987 he succeeded the founding director, Oliver Schroeder, and was promoted to associ­ ate professor. As of July 1, 1990, he will advance to the rank of professor with tenure.

His publications in 1989-90 include “Setting Limits: Age- Based Rationing and Technological Development” in the

St. Louis University Law Journal and “Fiduciary Contract­ ing: Limitations on Bargaining Between Patients and Health Care Providers” in the University of Pittsburgh Law Review. “Issues in High Technology Home Care: A Guide for Decision Making” (co-edited with Stuart Youngner) awaits publication by National Health Publishing, and “Health Care Quality: The Impact of New Quality Assur­ ance Technologies” is in progress.

Another 1989 project was done under the auspices of the New York State Bar Association and published as The

in brief May 1990 Harvard No-Fault Project: A Critique. A team of Harvard innovative teacher. A prime example of innovation is his University researchers conducted a state-sponsored interdisciplinary law/medicine seminar. Health Care Con­ study of malpractice in New York hospitals and con­ troversies, which he conceived a couple of years ago and cluded that a system of no-fault medical malpractice offered this spring for the second time, co-teaching with insurance would not cost a great deal more than what is Dr. Thomas Riemenschneider of the medical faculty. currently being paid in malpractice insurance premiums by New York doctors and hospitals. When Mehlman was Health Care Controversies is open to first- and second- asked by the bar association’s Special Committee on year medical students and to law students who have Medical Malpractice to examine the design of the study, taken the basic Health Law course. Its purpose is to he found it “heavily biased in favor of no-fault.” confront the students with difficult (even intractable) problems of health care and health policy. Students work Mehlman’s critique argues that the study underestimates in small interdisciplinary teams; the best kind of team, the true cost of a no-fault system; ignores events and say the instructors, is a one-on-one pair. injuries which take place in physicians’ offices, hospital outpatient clinics, and nursing homes; and does not ade­ The course revolves around six problems: active eutha­ quately take into account the cost of the administrative nasia, medical malpractice, conflicts of interest and bureaucracy that would be needed to oversee a no-fault overlapping responsibility for patient care, age-based system. Mehlman has commented: “The system they rationing, AIDS and the physician-patient relationship, propose wouldn’t be any cheaper to operate; in fact it’s and quality assurance and the law. likely to cost more. What’s worse, it would eliminate the deterrent effect of the tort system on hospitals and The class deals with each problem in four phases. First, physicians.” the students digest a set of assigned materials. As an example, the problem on active euthanasia has them Mehlman’s increasing stature as a nationally known reading articles from law journals and medical journals, expert on health care and the law was evidenced a few statutory provisions on homicide, court opinions in some years ago when he was named to a special committee of mercy-killing cases, and the notorious “It’s Over, Debbie” the Institute of Medicine of the National Academy of piece from the Journal of the American Medical Association. Sciences. The committee undertook a study, mandated In the second phase, the class splits into teams for dis­ by the Omnibus Budget Reconciliation Act of 1986, of the cussion of the problem and the background materials; Medicare program and its mechanisms for quality assur­ Mehlman and Riemenschneider rove about from team to ance. The group was asked to define quality, assess team, raising issues and answering questions. The third methods for measuring quality, and design a strategy for phase is a class discussion, including presentation and quality review and assurance in Medicare. Of the com­ critique of the various teams’ positions. The final phase mittee’s seventeen members Mehlman was the only is the writing and review of papers by the law students. lawyer. The medical students are exempt from the writing requirement because they are taking the class as a pass/ The committee’s report was released March 7, 1990. A fail elective. summary by the chairman and the project director appeared in the March 8 issue of the New England Journal Two of the six problems—AIDS, and malpractice—do not of Medicine. Briefly, the report recommends a “major require papers, but instead require the teams to deal redirection” for monitoring Medicare services, with with a complex issue in a short period of time. The stu­ greater emphasis on quality assurance and less emphasis dents are given actual medical information that demands on cost containment. An outgrowth of Mehlman’s partici­ a fairly immediate response. They have an hour to for­ pation in the study is “Medicare Quality Assurance mulate their response, and then the class discusses the Mechanisms and the Law,” co-authored with A. Smith responses. and published last year by the Institute of Medicine. One might expect that the dynamics of the seminar Another project of Max Mehlman’s is this year’s Health would involve a confrontation between legal and medical Law Teachers Conference, to be held in Cleveland in June points of view, and that an observer could easily identify under the co-sponsorship of the Case Western Reserve which students come from which school. Not so. One School of Law and the American Society of Law and reason is that some of the students have a dual role; Jack Medicine. It is expected to attract a hundred or more Conomy, for example, is a law student and a physician at teachers of health law and bioethics-related courses in the Cleveland Clinic. But the main reason, said schools of law, medicine, public health, health care Riemenschneider, is that all the students consistently try administration, pharmacy, nursing, and dentistry. to see a problem from alternative perspectives. Mehlman is the conference chair. Riemenschneider was enthusiastic about co-teaching the The program that Mehlman has designed, and for which course, he ^aid, because his own brother is a lawyer: he has recruited an impressive roster of participants “We grew up in the era when lawyers and doctors were from all over the country, includes such topics as Health enemies, and I was interested in seeing if we couldn’t Care Financing and Reimbursement Issues; The Human bring the two together.” To bis and Mehlman’s delight, Genome Initiative; Empirical and Interdisciplinary that is exactly what seems to be happening in the Research on Medical Malpractice; Antitrust and Related seminar. Issues; and Biornedical Ethics and the Right to Privacy. -K.E.T. In addition to his scholarship and his wide-ranging pro­ fessional activities, Mehlman is earning a reputation among the law school’s students as a committed and

Case Western Reserve University School of Law A Call for a New Buffalo Scholarship

by Erik M. Jensen I^ofessor of Law

This article, first published in the Kansas Law Review, is here reprinted with permission. The author sees no reason why one person should take all the blame for this commen­ tary, and he therefore wishes to thank his colleague, Jona­ than Entin, for his helpfully absurd comments on an earlier draft.

Some of us who have long been interested in animal law' are only now starting to go public. 1, for one, have intended since 1979 to write the definitive article on parrot law,^ but 1 have hesitated to tell my dean of this hidden desire. Sheepish proponents of other species have also been waiting anxiously to declare themselves.^

It was with particular pleasure, therefore, that I recently

came across the Buffalo Law Review, a publication that competes with the Kansas Law Review, in the library. Buffalo law has many attractions for academic study, and Erik Jensen, who joined the law faculty In 1983, holds 1 was delighted that a specialized journal devoted to degrees from MJ.T (S.B.), Chicago (M.A. in political science), such scholarship exists. We have been celebrating and Cornell (J.D.). He clerked for Judge Monroe G. McKay on anniversaries of the nation’s founding since 1976: what the Tenth Circuit and practiced in New York with Sullivan & better way for us academics to honor the various bison- Cromwell before embarking on an academic career. If you tennials than to focus on the buffalo? read In Brief’s Faculty Notes at all faithfully (see, for example, page 18), you know that Jensen is one of Gund Hall’s most prolific and (usually) serious scholars. The Buffalo Law Review has provided an opportunity for scholars to come to terms with the world of buffalo law, but the potential has not been fulfilled. In fact, I have difficulty in seeing what many of the articles within its must now take the lead® by putting buffalo law at the pages have to do with buffalo law. 1 suppose an argument center of its activity. This journal is an appropriate can be made that law is a seamless web and that any forum for several reasons, at least one of which is based legal problem eventually affects the buffalo.'* All of law on theory. Two Rutgers University professors have can therefore be seen as buffalo law.® That theory has recently suggested that the Great Plains states were some appeal, 1 must admit, but it is not fully satisfying. never suitable for human habitation and that those states should, in effect, be returned to the buffalo.’ Discounted The Kansas Law Review can do better. Because the Buffalo by the governor of Kansas as “a real buffalo pie in the Law Review editors have not filled the void, this journal sky idea,”* the notion nevertheless has some merit. This 7

'With the species-centrism characteristic of humanity, 1 generally he moved up (or down) the law school pecking order, becoming use the term “animal law” to mean the law developed by humans a dean. He took his ideas with him—poultry in motion? —leaving to control relationships with animals, rather than the internal chicken law scholarship unhatched at this school. ordering mechanisms developed by the animals themselves. However, since consistency is limiting, 1 may ignore my own ■‘For example, the Buffalo Law Review recently published an Amer­ definition. See, eg., notes 26-31 and accompanying text (discus­ ican Indian law article. Smith, Republicanism, Imperialism, and sion of buffalo family law). Sovereignty: A History of the Doctrine of Tribal Sovereignty, 37 Buffalo L. Rev. 527 (1988-89). As numismatists know, Indians and 'Luckily, parrots should be able to survive until I complete the buffalos are two sides of the same coin. project. See Casablanca (Metro-Goldwyn-Mayer 1942) (Richard Blaine reminding lisa Lund that “[wje’ll always have parrots”). "Or parrot law. See supra note 2 and accompanying text.

'At one time a former colleague of mine wanted to put together a ‘See Chinese Zodiac placemat, Golden Wok Restaurant, Cleveland, law school course on “Law and the Chicken,” studying the sick Ohio (meal of Oct. 16, 1989) (“Buffalo: A Leader, you are bright chicken case, eggshell plaintiffs, Henn on Corporations, and so and cheerful. Compatible with the snake and rooster; your oppo­ on. That he is a former colleague does not reflect my institution’s site is the goat.”) (on file with the author). evaluation of the project’s merits. (1 must admit, however, that the institution may not have been capable of an informed judg­ ’See Return the Great Plains to Buffalo, Planners Say, Cleveland ment. See W. Percy, Love in the Ruins 219-20 (Dell paperback ed. Plain Dealer, Oct. 10, 1989, at 11-D, col. 1. 1972) (ridiculing the linguistic abilities of “chicken**** Ohio­ ans”).) Before the idea had passed beyond the embryonic stage. ‘Id.

in brief May 1990 journal, whose sponsoring institution depends on public nothing like that has happened with buffalo law. 1 sus­ support, cannot afford to ignore the effects of relinquish­ pect, but cannot prove, that the justices are not directly ing the state of Kansas to the tax-exempt buffalo. to blame —that it is litigants who have kept the buffalo cases out of Washington. No self-respecting buffalo pro­ ponent relishes appearing before a body that was once The Shortage called the Burger Court.'* Chief Justice Burger That other legal journal has not lived up to expectations, gone, but we are tasting the aftereffects.of Wi* fegin^' but 1 do not question the wisdom of its editorial board. Eventually, one hopes, litigants will muster suffloer Editors cannot publish articles that are not written, and courage, forcing the Court to play catctei^j^^ji they now have few buffalo law articles from which to buffalo law on the front burner. choose. 1 am aware of no law school offering a course in buffalo law." Although 1 gather from reading advance sheets that specialists in the subject exist'"—and 1 have The Call reason to think that firms of specialists have formed" — We cannot wait for the Supreme I the academic literature is skimpy. Legal scholars have research difficulties nor Supreme hesitancy ^ been slow to pick up on buffalos.'^ Why is there so little prevent the development of a scheis^y-field. If ^lut^ buffalo scholarship today?" is scant—or if it is too much-of a hassle to find-r,^^ academics can proceed in^^e-tiitje-hanorcd way by; 1 am convinced that the primary reason is the difficulty ing “think pieces.” 1 sugg^- we do just that: let ys’tj of research. The traditional research services do not the editors of this journM®j^E»terial that' isolate buffalo law materials into a discrete category; new buffalo scholar^ina^^^^SS.. West Publishing Company has no key number for the buffalo. The computer research services are only slightly In urging a new dire more helpful. Put “buffalo” and its variants into the com­ approaching a stampe puter and you wind up with lots of cases that mention law. A herd mentality the snow-covered city on Lake Erie’s shores,'" that cite ters,“ but it should be precedents with the word “buffalo” in the name,'" or that text. Think buffalo!" use “buffalo” as a verb.'" 1 don’t want to read all that stuff,'" and 1 bet others feel the same way. On what should we focus ou arship, like the buffalo him- Buffalo law has generated little academic excitement'* ranging, but we might begin also because of the Supreme Court’s absence from buf­ threshold requirement for buff falo jurisprudence. Areas of the law can become note­ to define the field: What distingu worthy simply because the Court deals with them, but

“Some do offer trial practice courses, which teach a form of from many of the same problems. Someone is always parroting buffaloing. Cf. Henry v. Farmer City State Bank, 127 F.R.D. 154, someone else. Thank goodness there’s no Parrot City. 157 (C.D. 111. 1989) (“counsel either are trying to buffalo the court or have not done their homework”) (quoting Szabo Food '“Big academics have remained calm. Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1082 (7th Cir. 1987), cert, dismissed, 485 US. 901 (1988)). "The buffalos themselves may be nervous undergoing the grill­ ing common in litigation. See Buffalo Shook Co. v. Barksdale, 206 '"5ee, e.g., United States v. McGraw-Edison Co., 718 F. Supp. 154, Va. 45, 141 S.E.2d 738 (1965). 159 (W.D.N.Y. 1989) (“Buffalo counsel shall attend in chambers.”). ”I do not mean to distinguish new buffalos from old. Ageism has no place in buffalo scholarship. Cf. supra note 13. But see United "See, e.g., New York State Energy Resources & Dev. Auth. v. States v. Young Buffalo, 591 F.2d 506 (9th Cir.), cert denied, 441 Nuclear Fuel Serv. Inc., 714 F. Supp. 71, 73 n.5 (W.D.N.Y. 1989) US. 950 (1979). (referring to “Buffalo firm”). They must send out buffalo bills. "'Governmental thinking about the buffalo has already taken new '"Picking up after buffalos is beyond the scope of this essay. directions. In the early 1980s Secretary of the Interior James Watt tried to outflank his critics by remodelling the Interior '“By using the term “little buffalo scholarship,” I do not mean to Department’s seal—the symbol, not the animal—so that the suggest that research on miniature buffalos has priority over symbolic buffalo faced right rather than left. The change was research on the larger variety. “Greater buffalos” do seem to sometimes justified on the basis of “artistic reasons,” see N.Y. have been given disproportionate consideration in the case law. Times, May 7, 1981, at B12, col. 2, but a spokesman later admit­ See, e.g.. Greater Buffalo Press, Inc. v. Federal Reserve Board, 866 ted that Watt “thought the right side should have equal time.” F.2d 38 (2d Cir.), cert, denied, 109 S. Ct. 3159 (1989). But reverse Gailey, Watt Turns His Buffalo to tfie Right, N.Y. Times, May 21, sizeism has no place in buffalo scholarship. Cf infra note 20. 1982, at A18, col. 4.

"5ee, e.g., A.A. Poultry Farms, Inc. v. Rose Acre Farms, Inc., 881 Wl^en Watt left office after a turnaround in his own fortunes, F.2d 1396, 1398 (7th Cir. 1989) (Indianapolis area egg dealer had “right-facing buffaloes were [no longer] in vogue,” and the buf­ “cracked markets as far away as Buffalo”). Another chicken case! falo returned to the orientation he or she had taken since 1849. 5ee supra note 3. ^ N.Y. Times, Jan. 24, 1984, at A13, col. 4.

"E.g., Buffalo Forge v. United Steelworkers of America, 428 US. ’"5ee, e.g., F. Nietzsche, Beyond Good and Evil 212 (1886) (disparag­ 397 (1976). Everyone seems to cite this case —it has something ing the situation “(tjoday, . . when only the herd animal is hon­ to do with labor law—and it really screws up buffalo research. ored and dispenses honors in Europe”), reprinted in The Portable How does one forge a buffalo anyway? Nietzsche 446 (W. Kaufmann ed. 1954).

'•5ee, eg, Mid-State Fertilizer Co. v. Exchange Nat’I Bank, 877 "’Lest any reader misconstrue my approval of a herd mentality, I F.2d 1333, 1340 (7th Cir. 1989) (“Judges should not be buffaloed should emphasize that the scholarship must be unfettered. In the by unreasoned expert opinions.”). best traditions of academic inquiry, we must let the buffalo chips fall where they may. "Nor do I want to do the research on parrot law, which suffers

Case Western Reserve University School of Law other beings for legal purposes? What is the essence of After we open the door to feminist-buffalo law studies, buffalo?^ Should buffalo law be subsumed by bovine law, critical buffalo-legal studies and buffalo law and eco­ or does it stand on its own four feet? At a minimum, we nomics will surely not be far behind.” One might posit should clarify the nature of the buffalo sufficiently so the buffalo as a metaphor for subhyperbolic meta-spacial that confused judges can place the animal in his or her synergistic power relationships in our society. Or one proper habitat.” might study how law has moved inexorably to an effi­ cient allocation of buffalo.” The possibilities are endless, ..Once the threshold has been passed,” substantive areas and 1 am sure your mind is already filling with buffalo wltt demand attention. Buffalo family law holds particu­ think pieces waiting to be disgorged. lar prorriisd. Ftfr'e^ample, C.J. Tower & Sons of Buffalo, Inc. V. United States” a decision of the now-extinct Court of Customs and Patent Appeals, appears to recognize the The Conclusion buffalo family unit. “Sons'of buffalo” has the warm ring The possibilities may be endless, but this commentary is of an earlier family-oriented era, evoking images of not. We are just about there. Few have heard of buffalo young buffalo bundled up fordhe trek to school.” But law, but 1 have suggested that the Kansas Law Review can consider the problems needing analysis. We have devel­ change that fact. It is time to begin a new deal for buf­ oped no formalities to memorialize buffalo marriage.” falo law, this is the place to do it, and this commentary I What is the appropriate fcUnily.Unit? Moreover, the case is a humble attempt at that beginning. I'tew emphasis on “sons of buffalo” suggests an excessive •male-orientation.”The emergence of buffalo-feminist (or, ; if you prefer, feminist-buffaloX^udies” is necessary if ^^ortchanged.

. V. Exchange Nat’l Bank, 877 F.2d ”I am reminded of a New Yorker cartoon in which a distressed kitten is reassured by his elders that his status is not peculiar: all cats are bastards. See my memory (1989) (computer research ”5ee, e.g., Mississippi vJlV^rsh, 710 F. Supp. 1488, 1491 (S.D. Miss. services not yet set up for cartoons). 1989) (refe/rir^ to “rough fish such as catfish and buffalo”). Perhaps I'Jsittheing unj^r'to the Marsh judge. Helping the buffalo ”C7 supra notes 13 & 20. to survii^ bj^Creatingsattemative aquatic environments is a praiseti^u;t&if enterp^^ahd, if that was the judge’s point, I ”C7. “Buffalo Gals, Won't You Come Out Tonight?” (cassette tape commend him. A buM^jould indeed be one rough fish. of singing author, who doesn’t know how to find citation infor­ mation for this item, is on file at the Kansas Law Review}. ^Another threshold question comes to mind: can you imagine Mr. Buffalo carrying a new Mrs. Buffalo into their new home? But “Given my research habits, I find all of these possibilities see infra note 29 and accompanying text (questionable marital appealing. Think pieces are easiest without documents to read, status of buffalos). and none of these schools of thought, in its non-buffalo manifes­ tation, cares about textual analysis—of judicial opinions or ”673 F.2d 1268 (C.C.P.A. 1982). anything else.

“Education obviously remains important in the buffalo commu- ”/.e., almost none anywhere, nity. See Buffalo Teachers Fed’n v. Arthur, 467 US. 1259 (1984); Moore v. Buffalo Bd. of Educ., 465 US. 1079 (1984).

BLSA News 9

The Black Law Students Association too.” Sandra Kerber—writing For the sixth straight year BLSA held, had an active year, culminating in instructor, attorney, lecturer in BAR/ in November, a Minority Pre-Law the fifth annual scholarship dinner BRI courses—conducted the Conference for undergraduate and on April 14. The speaker was June M. seminar. high school students. The program Baldwin, a graduate of the Harvard Included a seminar on test-taking, a Law School and vice president of Most important, BLSA helped to panel of practitioners discussing business affairs with the Carson launch a mentor program, pairing career options, a simulated law class, Productions Group. first-year students with practicing a mock trial demonstration, and attorneys and judges. Most but not discussions with current law stu­ In 1989-90 BLSA put special effort all of the volunteer mentors are dents. This year’s conference into programs benefiting first-year alumni of the law school. Everett L. attracted a record number of pre-law students, starting with a picnic dur­ Glenn ’77, who practices in Cleve­ students, and the Office of Admis­ ing the days of orientation. In land with Benesch, Friedlander, sions has received a number of appli­ November there was an exam-writing Coplan & Aronoff, was particularly cations from attendees. In March seminar. Explained BLSA President helpful in setting up the program members of BLSA conducted a Bryan Adamson: “We all know that and recruiting mentors from the phonathon, calling admitted minority it’s important to know substance local black legal community. (Note: candidates and talking with them when taking a law school exam, but Additional volunteers would be wel­ about the law school and life in approach and strategy are important comed! Call the Office of Admissions, Cleveland. 368-3600.)

in brief May 1990 Remembering Sidney Jacoby

Sidney was as generous to his col­ leagues as he was to his students. When 1 first came to CWRU in 1969 by Sidney Picker, Jr. and met Sidney, 1 was more terrified Professor of Law of looking foolish in front of him than before a classful of third-years, idney Jacoby—the quintessen­ especially when 1 learned that his tial law professor. It is with background in international law (my regret and deep sadness that area) was every bit the equal of his we at the law school learned foreground in civil procedure! He of his death on New Year’s Eve at the proved, however, the the ideal men­ ageS of 81. Our heartfelt sympathy tor. His colleagues knew that his goes to his widow and the law door was always open, and one school’s good friend, Elaine Jacoby. could walk in to discuss any problem. In many ways Sidney was the center- piece of the faculty during the 1960s That same collegiality and support and 1970s. A whole generation of was evidenced often, with both sub­ students passed through the law with anticipation, for to survive stance and style. By way of example, school in awe of the one faculty marked your rite of passage toward when the law school first considered member who fit everyone’s stereo­ lawyerhood. If, God forbid, you were establishing the Canada-U.S. Law typical expectations of what a pro­ unprepared, you heard an audible Institute in the mid-1970s, Sidney not fessor was supposed to be. Straight sigh of disappointment from the only encouraged the idea, he backed out of central casting, Sidney was podium, followed by “Dot’s a zeero,” that encouragement with his time bent, white haired, droopy-eyed, and as Sidney bent over his seating chart and attention. Among other things, seemingly absent-minded. Complete, accompanied by his pen. No one he agreed to be a part of a small down to his marvelously thick knew precisely what the conse­ group of faculty who would visit and middle-European accent, he would quences of those “zeeros” were, but investigate then-candidate Canadian have been a stage director’s ideal the fear of them, coupled with law schools. For Sidney, who suffered choice to play Albert Einstein. humiliation at somehow having let from Parkinson’s disease, traveling the old man down, was sufficient to (often in small charter planes) to In fact, tbe analogy to Einstein was assure an extraordinary level of these schools was not easy, but he more than accent-deep. A true preparation. would not hear of not helping. En scholar in the old-world sense of route he would feed his puckish that word, Sidney was internationally As the term drew to a close, those sense of humor by gleefully turning known for his scholarship (including first-years would try to psyche out to white-knuckled fellow flier Lew the renowned Schwartz and Jacoby their final exam in Civ Pro. 1 recall Katz and speculating on the poten­ once being stopped in the second- casebook. Government Litigation, and tial consequences of any stray air- floor hallway by a knot of them who treatise. Litigation and the Federal bump we encountered. (I learned to were trying to convince me that the Government}. He could often be sit in the middle seat to separate the found in the library searching for secret to acing Sidney’s exam was two, thereby precluding the inclusion some case or other, a real effort in sprinkling it liberally with case of a new case for Katz’s Criminal the old days before tbe law school names. Just at that moment Sidney Law course!) moved to its present quarters. came out of his office en route to Indeed, Sidney gave a whole new the Easter Egg hunt. 1 called him Sidney knew as much about music as meaning to the word “search” once over and asked him in front of the law. Purportedly, one of the principal when, while looking futilely for a students what he would do to an lures by which then-Dean Lou Toep- book absent from its assigned slot in exam laced with case names. “Why, fer was able to bring him to CWRU the overcrowded library, he found flunk it of course; only a student was George Szell’s Cleveland Orches­ instead, tucked horizontally behind who knows nothing knows names. tra. He went so regularly and with the upright tomes, another book be’d What a waste of time to learn such (audible) fervor that Szell been searching for without success them.” invited him on occasion to attend weeks earler. To no one and every­ rehearsals. When in Sidney’s opinion one he exploded, “Ziss iss no library, By the end of the term those stu­ the orchestra screwed up, he had ziss iss an Easter Egg hunt!” dents learned that, while Sidney had a brain which might have served as been heard to mumble sotto voce “Dot’s a zeero.” The sight and sound of him instilled role-model to a Mac Phis, he also had instant terror in first-year students. a heart of marshmallow. After a Sidney Jacoby will be remembered His incredible garden path of ques­ timid start they soon learned the and missed by those he taught, tions (so much for “absent-minded”) path to his office, where they were worked with, and lived among. His in Civil Procedure left them in dread received with gentleness and touch and texture are a part of the of being called on, a dread mixed patience, no matter the level of cultural fabric of this law school. questions presented, or whether the Sidney was a couple of “zeeros” with problem posed was professional or a one in front. personal.

Case Western Reserve University School of Law Book Review

clients on a wide variety of matters.” statutory goals, as well as to public Nan Aron’s Liberty and Aron found public interest law firms interest law firms’ administrative Justice for All to be concentrated on the east and advocacy. The book details the west coasts, focusing principally on firms’ resulting shifts in emphasis by Robert M. Clyde, Jr. ’71 impact issues affecting a relatively and strategy. Building and working

“Although still accounting for only a large population. Noting that the with coalitions, firms engaged more small proportion of total legal activ­ need for such advocacy is just as extensively in legislative advocacy ity, public interest law has, to a sig­ great in the Midwest and the South, and administrative oversight. They nificant degree, been institution­ where she asserts that many issues put more effort into public informa­ alized in the American legal system.” remain unaddressed, she nonetheless tion, communicating the effects of So concludes Nan Aron 73 in her fails to credit the important contri­ adverse action to those individuals butions of legal services firms. Many most directly impacted. (Ironically, recently published Liberty and Justice for All: Public Interest Law in the 1980’s of these firms regularly address the public interest movement had state, local, and at times national learned something from the tactics and Beyond (Boulder, Colorado, Westview Press, 1989). As one who policy issues. Public defender offices of their ideological antagonists has personally struggled for the last also devote substantial resources to throughout the Reagan era.) seventeen years in the provision of impact issues, e.g., the death pen­ legal services to the poor, 1 am alty, the right to effective assistance Thus, Aron aptly observes, Reagan acutely aware of the importance of of counsel, and other issues involv­ administration efforts to disengage this achievement. Aron’s book is ing basic liberty. the federal government from its role itself evidence of the coming of age as regulator and watchdog for the of a vitally important component of The book provides an extensive public good caused a reaction which America’s justice system. profile of public interest law firms. actually aided in the institutionaliza­ Described as cause- or client- tion of public interest law firms.

Chronicling the recent emergence of defined, these firms are all nonprofit These firms diversified their funding the public interest law movement, corporations. Client-defined firms base to such an extent that overall Aron provides a thoroughly detailed include those working (for example) funding actually increased slightly account of the growth and establish­ on behalf of the poor, minorities, throughout the 1980s despite sub­ ment of the public interest law firm. women, children, the elderly, and the stantial reductions in federal Historically rooted in the legal aid disabled. Among the more readily funding. societies of the late 19th century, recognizable are the NAACP Legal the American Civil Liberties Union of Defense Fund, the Native American And the firms’ staff managed to hang World War 1 vintage, and the civil Rights Fund, California Rural Legal on. Therein lies one of the most Assistance, Advocates for Basic rights movement through the 1950s, significant keys to institutionaliza­ public interest law firms blossomed Legal Equality, the Southern Poverty tion. It is important to retain staff in the 1960s and 1970s. Law Center, and the Children’s who have gained experience and Defense Fund. Cause-defined firms maturity and have built a network of

Aron, who is executive director of include the Environmental Defense allies. These public interest lawyers the Alliance for Justice, a national Fund, the Natural Resources Defense are accomplished litigators, association of public interest law Council, the Center for Constitu­ respected by judges and adversaries firms, has integrated the results of tional Rights, and the Center for Law alike. Colleagues working on similar the Alliance’s 1984 survey of its and Social Policy. issues seek their counsel, and so do constituency. The survey found that others who are working to imple­ Aron describes the public interest more than 220 public interest law ment or change policy, such as legis­ firms existed in 1984. This is an law practice as continuing to favor lative and administrative staff at impressive number, particularly litigation and administrative advo­ both state and national levels. In since Aron excludes, by definition, cacy as its primary means of effect­ short, the public interest law firms more than 280 Legal Services Corpo­ ing policy implementation and have become more like their coun­ ration grantees as well as all of the change. But she notes that a combi­ terparts, America’s corporate firms. public defender offices throughout nation of factors has led to extensive They have come of age. Bravo. the country. It is also significant that use of other strategies as well. the Alliance found more than 900 Reagan’s much-publicized transfor­ Bob Clyde spent 17 years with North­ attorneys employed by the 158 sur­ mation of the federal courts shifted east Ohio Legal Services, the last 12 as some of the focus away from use of vey respondents. executive director; he was one of our the formerly activist courts of the graduates included in a Focus on Legal I am somewhat in disagreement with 1960s and 1970s. Likewise, although Services, January 1989. Now he is in Aron’s definitional exclusion of legal firms had previously enjoyed a Cincinnati, working as a legal services! services firms (or legal aid soci­ decent working relationship with management consultant. Reading and eties) and public defender offices. agencies charged with enforcing reviewing Aron’s book was a particular Aron excludes them because, she legislation designed to protect citi­ pleasure, he says, because as a man­ says, their primary function is ser­ zens, Reagan’s policy makers were ager of a legal services firm he had as vice to “a large number of individual not only reluctant to follow legisla­ his goal the institutionalization that Nan tive mandates, but antagonistic to Aron describes.

in brief May 1990 1990 Alumni Weekend

Mark the weekend of Saturday, Sep­ great successes of the 1985 Alumni tember 15. That’s the date of this 1940 Weekend, but Bob Weltman, Gary year’s Law Alumni Weekend. The 50-year reunion will be held just Bryenton, Bob Balantzow, Gene off campus, at the College Club in Bayer, John Marksz, Neil McGinness, At the time of this writing (mid- Cleveland Heights. Sherm Dye, Joe and Shelley Braverman assure us March), plans are still fluid but we Babin, Bunny Goldfarb, and Bill that the 25-year celebration will top know that the format will be a little Walker are the local arrangers, with it. The site had not been agreed on different from that of past years. The long-distance assistance from Ray when this was written, but the Friday evening portion is expanding Morris, Hub Evans, and Jim Fay. Marksz home was a possibility. from a cocktail reception to a gala all-classes alumni dinner, featuring a notable speaker t.b.a., as well as the 1945 1970 presentation of the Fletcher Reed Probably there will not be a 45-year A good-sized committee has under­ Andrews Award and the Alumni Asso­ reunion in 1990. An informal poll of taken the planning of the 20-year ciation’s awards to a Distinguished half a dozen members of this small reunion: Mike Drain, Stu Laven, Bill Teacher and a Distinguished Recent (fewer than 20) class revealed a Lawrence, Kerry Dustin, John Graduate. consensus: Let’s wait till 1995 and Malone, Don Modica, Susan Stauffer, celebrate the 50th. Major Eagan, Tom Liber, Homer Taft, The Office of Continuing Legal Edu­ Dan Wilt, Jack Bjerke, Lee Dunn, cation will offer a full day—and then Tom Ackland. Stu and Lorra Laven some. On Friday John A. Daly, profes­ 1950 have again offered to host the The ringleaders of the 40-year party sor of communication at the Univer­ group. sity of Texas at Austin, will present a are Mel Andrews, Charlie Kitchen, 6-credit program. Communication Tom Murphy, Fred Kidder, Dick Principles and Strategies for Attor­ Renkert, Rollie Strasshofer, Parker 1975 neys. On Saturday you can earn Orr, Charlie Tricarichi, and Jack Planning has begin with a group of more CLE credits with CWRU law Whitney. They’ve chosen a campus Cleveland class members: Tom Corri­ faculty. Teachers and topics have not site—the lobby and Faculty Dining gan, Rick Hauer, Marilyn Shea- yet been identified as of this writing, Room in Tomlinson Hall (which class Stonum, Louis Rorimer, Tom McKee, but the program will include ethics/ members who came through Adel- George McGaughey, Bruce Bogart, substance abuse, which should be of bert College will remember as the Ralph Tyler, Phil Star, Ken Spanagel, particular interest to alumni (includ­ old Case Institute student union). Ed Kramer, Steve Kaufman. At last ing non-Ohio residents) who wish to report they were recruiting non- keep up their Ohio bar certification. Cleveland additions. Mary Ann 1955 Jorgenson declined to serve on the All graduates of the law school will Rush and Nancy McKnight have committee but, in a more-than-fair receive detailed information about offered their Moreland Hills home as exchange, offered to host the party the weekend no later than mid-July. the party site, and the planning com­ at her home. In the meantime, feel free to call (or mittee has vowed to surpass the write) and ask questions. The place record-breaking reunion attendance to call is the Office of External five years ago. The committee is 1980 Affairs: 216/368-3860. Either Kerstin spearheaded by Bill Ziegler; includes Pat Donnelly, Mary Anne Garvey, Bill Trawick, the director, or her assis­ Russell Baron, Jim Wanner, Mike Gagliano, Laurie Baumgardner, Pete tant, Beth Hlabse, will be glad to Gavin, and Bill Wallace; and at last Sikora, Rosemary Macedonio, Ro help you. Even by the time you read report was being expanded. Kiernan Mazanec, Hewitt Shaw, Col­ this, they should have more informa­ leen Flynn Goss, Martin Hoke, Eric tion than was available when it was Kennedy, Jim Goldsmith, and David written. 1960 Weibel have started the ball rolling, Those who remember the 25-year and Rosemary Macedonio has invited The part of Alumni Weekend that reunion at the home of Myron and the class to party at her house. remains essentially unchanged is Kathy Stoll will be delighted to learn Saturday night. As in the past, it that the Stolls’ home has been belongs to the quinquennial reunion offered again for the 30th. Others 1985 , classes, five years through fifty. Each helping in the planning are Neal At this writing the still-increasing class is planning its own party, all at Lavelle, Shelley Berns, Allan Zambie, committee consists of Paul Corrado, different locations around town. If Jack Wilharm, Jim Youipg, Tim Tread­ Ann Harlan Young, Alan Yanowitz, your class year ends in -0 or -5, you way, John Kelley, Don Guittar, and Katy O’Donnell, Anne Heffernan should have received a letter by now; the two Goodmans, Bernie and Bob. Gray, Carl Gluek, Larry Zukerman, let us know if you hckven’t. Dave Leopold, Bret Treier, Greg DeGulis, Lynne Fischer, and Ruth What follows is a quick summary of 1965 Kahn. The probable party site is the the reunion plans as of mid-March. The class’s 20-year reunion at the Flat Iron Cafe, downtown in the Again, feel free to call 216/368-3860 Theatrical Restaurant was one of the Flats. for more up-to-date information.

Case Western Reserve University School of Law Visitors to the Law School

The 1989-90 academic year has seen a number of distinguished visitors to the law school. In the last issue we noted the 1989 Norman A. Sugarman Tax Lecturer, Professor Bernard Wolfman of Harvard University, and the appearance here of US. Supreme Court Justice Antonin Scalia as a Sumner Canary Lecturer. Since then, the Canary Lectureship has brought us a well-known US. appellate judge and the Law-Medicine Center has presented this year’s Oliver C. Schroeder, Jr., Scholar in Residence.

Judge Frank H. Easterbrook of the Seventh Circuit delivered a public lecture on February 7; he also taught classes in Professional Responsibility and Constitutional Law and met informally with the Federalist Soci­ ety. Easterbrook is the author (with

Posner) of Antitrust: Cases, Economic Notes and Other Materials and (with Fischel) of The Economic Structure of Corporate Law. In the field of law and economics he is known as one of the most prolific and influential mem­ bers of the Chicago School. Frank H. Easterbrook, judge of the U.S. Court of Appeals, 7th Circuit, and Sumner Guido Calabresi, dean of the law Canary Lecturer. school of Yale University, was the Schroeder Scholar in Residence. He in hiring; met informally with stu­ judge of the Sixth Circuit; David held a faculty workshop on diversity dents; and delivered a public lecture, Goldberger, professor of law at Ohio “Do We Own Our Bodies?” A much- State; Brian Brennan of the Cleveland published scholar, Calabresi is per­ Browns; W. Lee Hoskins, president of haps best known for his book Tragic the Federal Reserve Bank of Cleve­ Choices, the classic work on the just land; Eric Fingerhut, campaign man­ allocation of scarce health care ager for Cleveland Mayor Michael resources. White; Joel Z. Hyatt of Hyatt Legal Services; Robert L. Smith of the Another scholar in residence during MetroHealth Medical Center; and the spring semester was Professor E. Donald M. Robiner ’61, Cleveland Allan Farnsworth of Columbia Uni­ practitioner and former bar exam­ versity, whose visit was made possi­ iner, on “Taking the Bar Exam.” ble by the Cleveland Foundation. The Academy’s posters publicizing his noontime talk on “Contract Develop­ ments in the 1980s: The Top Ten”

identified him simply as “yes, that Farnsworth.” For anyone who needs further explanation, he is the author of casebooks on contracts (with Young) and commercial law (with Honnold), as well as the 1982 trea­

tise, Contracts, and Introduction to the Guido Calabresi, dean of the Yale law Legal System of the United States. school and 1990 Schroeder Scholar In Residence. The Academy’s spring roster of speakers also included Evan H. Turner, director of the Cleveland Museum of Art; Nathaniel Jones,

in brief May 1990 Two New Endowment Funds

Two new endowment funds have was a member of the Sons of the been established in recent months American Revolution, the Society of for the benefit of the law school. One Mayflower Descendants, and the will provide student scholarships, Mayfield Country Club. And for many and the other will create a new pro­ years he taught a law class for lay­ fessorial chair. men at Western Reserve University.

Professor Emeritus Oliver Schroeder The McCurdy Fund remembers McCurdy not only as a The Everett D. and Eugenia S. good friend and sometime class McCurdy Professorship in Contract agent of the law school, but as his Law, established by action of the neighbor in the Forest Hills suburban university’s Board of Trustees on development. At one time, restrictive February 15, 1990, brings to nine the covenants prevented Jews, blacks, number of the law school’s endowed and other “undesirables” from buy­ chairs. It is the result of a generous ing homes in Forest Hills. McCurdy, gift by Mrs. McCurdy in memory of says Schroeder, was one of the lead­ her late husband, a 1934 graduate of ers of the forces for integration the law school. there.

Born in 1905, Everett McCurdy His longtime law partner. Sterling Ralph A. Colbert ’30 received his B.A. degree from West­ Newell, remembers him as “the kind ern Reserve University’s Adelbert of lawyer who embraced the causes Dempsey in Cleveland, interrupted College in 1926 and was admitted to of his clients with total conviction, during World War II by military ser­ the bar in 1928—six years before the and they loved him and he loved vice. Commissioned in the Army Air law school awarded him the LL.B. He them. And he was very fond of the Force in 1942 as a first lieutenant, began practice in Cleveland with the law school, obviously.” Colbert did intelligence work in firm of Boyd, Brooks & Wickham. In Washington and London. In London 1950 he joined the firm of Spieth, he developed plans for the organiza­ Spring & Bell —now known as Spieth, The Colbert Fund tion of the U.S. Strategic Bombing Bell, McCurdy & Newell. For a time A bequest from Ralph Colbert, a Survey, later established under presi­ he was the firm’s chairman. 1930 graduate who died in October, dential order. He was awarded the 1987, has provided the law school Bronze Star and discharged in 1946 He was an active Mason and an with the Ralph A. Colbert Law Schol­ as a lieutenant colonel. active Christian Science reader: he arship Fund, formally estasblished was one of the founders of Overlook last October by the university’s Colbert was recognized as a leader House, a Christian Science sanato­ Board of Trustees. To that bequest in the Cleveland legal community rium in Cleveland Heights. He also have been added gifts from family and in the wider community as well. and friends, bringing the principal He headed the local chapter of the well over $250,000. We are especially American Jewish Committee from grateful to Mrs. Colbert, whose deci­ 1947 to 1949, and from 1950 to 1955 sion to waive her rights to a charita­ he chaired the Community Relations ble gift annuity trust allowed it to Committee of the Jewish Community pass immediately to the law school Federation. For thirty years he was a as residual beneficiary. trustee and member of the executive committee of the Cleveland Council A native Clevelander, Ralph Colbert on World Affairs. He was also an graduated from Glenville High School active alumnus of the law school, as valedictorian. He won a statewide serving as the 1930 class agent and scholarship competition, entered as a member of the school’s Develop­ Adelbert College at age sixteen, and ment Council. In 1976 he was elected received his A.B. degree summa cum to the Society of Benchers. laude in 1928, with election to Phi Beta Kappa. Having spent his under­ graduate senior year in absentia at The new endowments will honor the the law school, he received his law memory of Ralph Colbert and Everett degree two years later, with election McCurdy in perpetuity and will help to the Order of the Coif. It is said to assure that later generations of that he had the highest grade point students can follow their example of average that anyone had earned at professional and personal distinction. the law school up to that time. We are deeply grateful to them, to their wives, and to their friends and Colbert had a long and distinguished colleagues who have made memorial legal career with Squire, Sanders & Everett D. McCurdy ’34 gifts in their honor.

Case Western Reserve University School of Law 1990 Annual Fund—Close to the Top!

The 1990 Law Annual Fund is within The class agents and gift club advo­ expenses. Only 76 percent of the striking distance of reaching the cates have been busy all year long $9.6 million operating budget is cov­ record-setting goal of $525,000. At contacting classmates and friends ered by tuition and fees. Nearly one the end of March we had cash and and urging them to meet Brennan’s quarter has to come from endow­ pledges totaling $420,750. This rep­ challenge. At a phonathon March 26 ment income and grants and gifts- resents nearly a 24-percent increase and 27, 14 alumni and 20 students in other words, from you. And we are over the same time last year. made calls to 809 alumni. The grateful for your help. results were terrific: 215 alumni The driving force behind the 1990 pledged a total of $35,651. Dean If you have made a pledge, be sure to initiative is the $50,000 challenge Peter Gerhart said he was impressed mail your gift by June 15 so that it provided by David L. Brennan ’57, by the generosity of the donors and will certainly be received by the end who has promised to match all new no less impressed by the commit­ of the fiscal year and credited and increased gifts to the Annual ment of the volunteers who dialed, toward the 1990 fund. Send it to Law Fund up to that amount. If this year’s asked, recorded, redialed, and asked Annual Fund, CWRU School of Law, fund increases by $50,000 over last again —hour after hour. 11075 East Boulevard, Cleveland, year’s, the law school will qualify for Ohio 44106. If you have a question or the full $50,000 match. Your gift is needed to help the law wish to make a telephone pledge, call school meet current operating Robin Meinzer at 216/368-4495.

CLE Offerings

During the months of May and June, programs. We will mention just one the law school’s Office of Continuing of them here. On Friday, September CLE Programs Legal Education is offering a variety 14, in conjunction with the 1990 Law on Campus of programs. Alumni Weekend, Professor John A. June 1 —Negotiation Techniques for Daly of the University of Texas at Lawyers. Norbert S. Jacker, Professor Austin will present a six-credit pro­ For those who prefer to earn their of Law, DePaul University. Strosacker CLE credits without leaving home gram, Communication Principles and Auditorium. (or office), we are offering some Strategies for Attorneys. And we are courses by satellite network. The working on some CLE sessions with June 15—How to Collect a Money Judg­ programs will be broadcast from our own faculty for that Saturday. ment. Robert B. Weltman ’65, of Welt- Room 151 of Gund Hall, from 10 a.m. man, Weinberg & Associates, to 5 p.m. Each carries 5.5 CLE credit Cleveland. Gund Hall. hours. CLE Satellite Network

May 22 —The Automation of Drafting June 21 —Litigation Management and For those who enjoy an occasional Wills and Trust Agreements. Organization. Mark Dombroff, of escape from the office, we continue Hughes, Hubbard & Reed, Washing­ to offer the more conventional on- June 12—Marketing of Legal Services. ton, D.C. Hatch Auditorium, Baker campus sessions, each for 6 CLE Building. credit hours, from 9 a.m. to 4:30 p.m. June 26—Corporate Counsel Current Note the different locations on the Issues. A potpourri. For further information, write or call CWRU campus. Adrienne Potts, CLE coordinator. Her June 27 —International Strategic Plan­ direct-dial number is 216/368-6363. Be sure to check the September In ning Issues for Corporate Counsel. Brief lor an exciting array of fall CLE

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In brief May 1990 Client Counseling Competition

The annual Client Counseling Com­ petition focused on criminal cases this year. In the final round the cli­ ent presented a special problem: he had the HIV virus, which inevitably leads to AIDS.

Professor Rhonda R. Rivera of the Ohio State University College of Law, who has represented many AIDS clients and written an article on the subject (“Lawyers, Clients, and AIDS:

Some Notes from the Trenches,” Ohio State Law Journal, 1989), came from Columbus to judge the final round along with Thomas Hall, a clinical psychologist, and Professor Wilbur C. Leatherberry ’68, director of the Lisa Gale and Robert Faxon, both ’92, with their “client, ” Gregory DelTorto. Client Counseling Competition, who stepped into a sudden void when the third panel member had to cancel. He was remorseful, eager to explain employer, there was a remote possi­ his situation to his former employer bility that the employer might per­ The winning team was a pair of first- and repay the money. He needed to suade the prosecutor to drop year students, Lisa Gale and Robert avoid prison and go back to work if charges, and might even take back Faxon, and the “client” was actor he was to care for his nine-year-old the former employee. But to achieve Gregory DelTorto, formerly of the son and provide for his own antici­ that result the client would have to Cleveland Playhouse. Other finalist pated medical expenses. reveal his illness, both to the teams were Jacqueline Ford/Amy employer and to the prosecutor, and Freedheim and James DeRoche/Tracy The winning team dealt most effec­ take the risk of a strong negative Burton. Nearly 100 students (46 tively with the connection between reaction from either or both. teams) entered the competition this the illness and the crime and with year. the question how best to approach Before judging the competition in the former employer. The client’s the evening. Professor Rivera had In a state of panic after learning that best hope was to make restitution spoken in the afternoon to a group he had the HIV virus, the client had and seek the employer’s forgiveness of law students and health profes­ taken money from his employer and and support in dealing with the sionals on Counseling AIDS Clients. was now under indictment for prosecutor. Since the client had had She talked about the many difficul­ embezzlement and almost certain to an excellent work record and an ties lawyers have in dealing with a be convicted on five felony counts. excellent relationship with his PWA (person with AIDS): fear— rational or not—of catching the dis­ ease, (often) their own homophobia, and—especially—the certainty that their young clients will die within a short time. Rivera reported that in one ten-week period she went to sixteen funerals.

The lawyer for a PWA must under­ stand that the client probably can not or will not spend precious time and enefgy to vindicate legal rights. The legal problems are entwined with difficult practical ones. Many PWAs are estranged from their fami­ lies. They must balance the need for privacy (often necessary to preserve employment) and the need to collect insurance benefits for expensive treatments. They present the lawyer with excruciating ethical and moral Judges of the final round: Professor Rhonda R. Rivera of Ohio State University and issues. How do you respond when clinical psychologist Thomas Hall. Photo by the third Judge, Professor Wilbur C. your client asks your advice about Leatherberry ’68. suicide? Mock Trial & Moot Court Our Students Do Us Proud!

This has been a stellar year for There is more to the mock trial CWRU law students in interscholastic story. Jonathan R. Kuhlman and Marc competitions! W. Morris, both ’91, placed second in the competition sponsored by the The mock trial program—now known American Trial Lawyers Association officially as the Jonathan M. Ault in Des Moines, Iowa—the best per­ Mock Trial Program—was especially formance ever by CWRU in the ATLA successful. Two teams from CWRU tournament. Michael A. Hostettler ’91 entered the National Mock Trial and Laurie C. Knapp ’90 acted as Competition, and one of them fin­ their witnesses in the mock trial. In ished second in the country. Telly C. the Allegheny Competition in Pitts­ Nakos ’90, John R. Liber II '90, and burgh, Todd W. Collis and Max G. John A. Heer II '91 repeated their Gaujean (with Elizabeth Grove’s 1989 win at the regional meet in assistance as their witness) came in Dayton, emerging undefeated after fourth. Gaujean was the second four rounds, and went on to Houston, runner-up for best advocate. where they outpaced Boston College, Wake Forest, and Washington Univer­ The Moot Court Board also sent sity in preliminary rounds; beat student teams hither and yon. Two Hofstra in the quarter-finals; handed teams participated in the National the University of Texas team its first Competition’s regional contest in loss of the year in the semi-finals; Detroit, Michigan. Joseph T. Burke, Dean Peter Gerhart with Judge David D. and lost only in the final round, to Bernadette A. Champa, and Margaret Dowd, Jr., U.S. District Court, N.D. Stetson University, the defending M. Pauken won the award for the Ohio, who presided over the Auit national champion. Telly Nakos was best respondent’s brief. For the first National Moot Court Team Night on February 2. named second best advocate. time in several years we were repre­ sented in the J. Braxton Craven Com­ CWRU’s other national team was petition in constitutional law in Sixteen, along the way defeating last composed of Romney Cullers, Mark Chapel Hill, North Carolina. Rita year’s winner. Sherri Huber, Lynda E. Young, and Virginia Mitchell. Pro­ Bryce, Jennifer Michalski, and Cash Quick, Amy Scott, and Debra Stanton fessor James W. McElhaney was the H. Mischka made it into the Sweet represented CWRU in the Niagara faculty adviser. Tournament at the University of Windsor in Canada. Huber and Scott were named the best overall team of two and won the prize for the best respondent’s brief; Huber had the second highest oral advocacy score.

This year the Jessup Competition was dropped by the Moot Court Board and taken over by the Interna­ tional Law Society. Tamara Hrynik, John Helbling, Jocelyn Johnson, and Eleanora Riesenman represented CWRU at the regional competition, hosted by the Dickinson Law School in Carlisle, Pennsylvania.

What is missing from this issue of In Brief is news of the law school’s long­ standing moot court program for (mainly) second-year students: the Dean Dunmore Competition. Its con­ clusion was later than usual this year, with the tournament’s final found on April 21. We promise you a report in September.

Number 2 in the nation—John Heer, John Liber, and Telly Nakos at the site of the National Mock Trial Competition in Houston, Texas. Faculty Notes

Arthur D. Austin II has an article Visiting Professor Howard M. Fried­ Law School Clinic director Peter A. forthcoming in the University of man has two recent publications; Joy has presented several CLE pro­ “Tbe Insider Trading and Securities grams: “Ethics for the Practicing Miami Law Review on “Footnote Skul­ duggery and Other Bad Habits,” and Fraud Enforcement Act of 1988” in Attorney” in two sessions at the law school; “Asylum Issues” at the Immi­ another—“The ‘Custom of Vetting’ as the North Carolina Law Review (March a Substitute for Peer Review”—just 1990), and the 1990 supplement to gration and Naturalization Law Semi­ nar presented by the Cleveland published in the Arizona Law Review. his Ohio Securities Law and Practice Two review essays should be out by (Banks-Baldwin). chapter of the Federal Bar Associa­ the time this is printed: one in the tion; and “Substance Abuse and the Workplace” for the Cleveland Bar George Mason Law Review on G. Association. He was the moderator Stigler’s Memoirs of an Unregulated Paul C. Giannelli continues to add to for a meeting of Senator John Glenn Economist and the other in the his list of publications. “The United with several groups discussing US. Brigham Young University Law Review States Supreme Court: The 1988-1989 policies in Central America, and he on E. Bronner’s Battle for Justice: How Term” and “Hearsay: Part I” the Bork Nomination Shook America. is listed as an expert on human An op-ed piece appeared in the appeared in the Public Defender rights, immigration, sanctuary, and Reporter. The year 1989 saw a partial asylum policies in the Directory of Cleveland Plain Dealer September 1, 1989: “How Colleges Can Get revision of his Ohio Evidence Manual Northern Ohio Expertise in Interna­ (Banks-Baldwin) and annual supple­ Together to Fix Prices.” Austin’s tional Affairs prepared by the Cleve­ ments of that work and two others: current projects include articles on land Council on World Affairs. the demise of antitrust and the Courtroom Criminal Evidence (co­ “delawing” of law schools. author) and Scientific Evidence (both In 1990 Joy is serving as president of Michie). the Cleveland chapter of the Ameri­ can Civil Liberties Union and as a director of the Ohio ACLU. He has Law library director Kathleen M. been re-elected vice president of Erik M. Jensen reports two recently book, Garrick’s LEXIS: A Legal published articles: “The Law Review Cleveland Public Theatre for 1990. Research Manual, bas been gaining her fame if not fortune. It is the Manuscript Glut” in Journal of Legal basic text for tbe Harvard Law Education, and “A Call for a New School’s course in advanced legal Buffalo Law Scholarship” in the Uni­ Gerald Korngold is chair-elect of the research, and required reading at versity of Kansas Law Review (see Real Property Section of the Associa­ page 7 for the reprint). A third, in several other law schools, including tion of American Law Schools. Texas and Berkeley; it received a the Indiana Law Journal, is imminent: “Commentary: Food for Thought and rave review in the Texas Bar Journal Thoughts About Food: Can Meals and (December 1989); and it inspired the Lodging Provided to Domestic Ser­ Cleveland-Marshall College of Law to The Albany Law Review has just pub­ vants be for the Convenience of the lished Juliet P. Kostritsky’s “Stepping hold a reception in Carrick’s honor Employer?” He also reports two book out of the Morass of Duress Cases: A in February. Suggested Policy Guide.” reviews: one of Right V. Might: Interna­ Carrick’s latest publication is “CALR tional Law and the Use of Force by Louis Henkin and others, solicited by in the Law School Curriculum,” in the Vanderbilt Journal of Transnational Legal Publishing Preview. In January Throughout the year Robert P. Lawry and the other of she spoke in Florida at Mead Data Law, A Law Unto has been busy on the lecture circuit. Central’s annual business meeting for Itself The Untold Story of the Law Firm He presented a CLE program, “Con­ academic account representatives, Sullivan & Cromsell by Nancy Lisagor flict of Interest,” to attorneys at and Frank Lipsius, in tbe and in April she was in Dayton help­ Columbia Jones, Day, Reavis & Pogue, and ing to plan the Graylyn Conference, Business Law Review. In addition, presented a CLE program on “Confi­ Jensen was the author (without an annual meeting of academic law dentiality, Zealousness, and Profes­ attribution) of part of tbe 1988 Cur­ librarians focused on computer- sionalism” on several occasions. He rent Developments report for the assisted legal research. In May she played a major part last fall in the Committee on Sales, Exchanges and will be back in Dayton for the meet­ series of events that the university Basis of the ABA Section of Taxation, ing of the Ohio Regional Association organized under the title Political of Law Libraries; sbe is cbair of the published in The Tax Lawyer. Resistance in the 20th Century and in a ORALL Education Committee and media and ethics conference co­ vice chair of the Ohio Regional Con­ sponsored by tbe Center for Profes­ sortium of Law Libraries. In addition, sional Ethics (of which he is she continues to serve on the ABA co-director). In addition, he spoke to ' Gavel Awards Committee.

Case Western Reserve University School of Law CWRU alumni groups in Pittsburgh Oxford University Press for a new and in Naples, Florida; took part in a book for lawyers on writing style, legal ethics symposium at Capital and he submitted an article, “A Style Law School; addressed the national Sheet for Litigation,” to the inaugural

convention of the Tau Epsilon Rho issue of The Scribes Journal of Legal Law Society; and lectured (or pre­ Writing. sented workshops) on ethics to pub­ lic school administrators, dentists, high school students, university The Cuyahoga County Department of administrators, the Phi Delta Phi Legal Fraternity, federal judges, and Human Services asked Kathryn S. Mercer to provide core training for CWRU freshmen. the county’s child welfare workers. In a six-hour class presented to four separate groups, Mercer outlined the James W. McElhaney has been busy structure of the legal system and the on the CLE circuit, presenting pro­ basis for and limitations of child grams in Georgia, Mississippi, Minne­ welfare worker authority; she also sota, Ohio, South Carolina, Colorado, covered protective service legisla­ Oregon, Texas, and Hawaii, not to tion and social worker liability. mention Canada: Saskatoon, Regina, Edmondton, and Calgary. The Ameri­ can Bar Association published In 1990-91 Karen Nelson Moore will in McElhaney’s Trial Notebook on Tape be a visiting professor at the Har­ December; it was sold out by Febru­ vard Law School, teaching Taxation ary, and the ABA was planning a and Civil Procedure. She reports two second, more advanced series of recently published articles: “The tapes. His regular monthly columns Foreign Tax Credit for Foreign Taxes continued to appear in the ABA Jour­ Paid in Lieu of Income Taxes: An and in magazine; one of nal Litigation Evaluation of the Rationale and a these, “Jumping to Conclusions” in Reform Proposal,” in the American the ABA Journal, included a particu­ larly impressive bit of work by Chris Journal of Tax Policy, and “The Sham Transaction Doctrine: An Outmoded Flemming ’90, a student in his Trial and Unnecessary Approach to Com­ Tactics class. This spring McElhaney served as editorial consultant to the bating Tax Avoidance,” in the Florida Law review.

Five Faculty Promotions Five members of the law faculty will be promoted in rank, effective July 1, 1990. Associate Professors Laura B. Chisolm, Juliet P. Kos-

tritsky, and Maxwell J. Mehlman will become full professors with tenure, and Kevin C. McMunigal and Richard S. Myers will advance from assistant to associate professor.

The promotion-and-tenure process at CWRU, as at any major univer­ sity, is lengthy and arduous. The law candidates’ credentials first were reviewed by their peers —a committee chaired by Gerald Korngold and including Leon Gabinet, Wilbur C. Leatherberry, James W. McElhaney, and Associate Dean Melvyn R. Durchslag. The com­ mittee read the candidates’ published writings and works in pro­ gress, reviewed student evaluations of their teaching, and solicited comments on each candidate from legal scholars prominent in that person’s particular field(s). Upon recommendation by the commit­ tee, the candidates were reviewed and ultimately approved by the faculty, the dean, the provost, the president of the university, and the Board of Trustees.

Dean Peter Gerhart commented: “In these promotions, we can see the strong future of the law school. Each person is contributing to the national dialogue or important legal issues and bringing new insights to our students. We are proud to have them with us.” Class Notes

tional Tennis Committee and Logic and Limits of Bank­ 1950 has been appointed chair of ruptcy Law” in The Business Lawrence E. Stewart was a the USTA National Junior Lawyer. lecturer at the Medical Grand League Committee. Rounds, a continuing medical education program at Lutheran 1967 by Beth Hlabse Medical Center in Cleveland. 1961 We received this from Gary B. We received this from Myron Schwartz: “1 was elected L. Joseph: “1 was recently president of the Greater Miami 1951 elected to the board of direc­ Tax Institute for 1990. Cur­ John H. Gherlein has been tors and elected treasurer of rently 1 am of counsel to Shea elected a trustee of University the Milwaukee Estate Planning & Gould and head of the 1926 Circle, Inc., in Cleveland. Ralph Vince has been Council. 1 also just completed Miami office’s tax inducted into the Greater Does anyone know the where­ nine years on the board of department.” Cleveland Athletic Hall of Fame abouts of Theodore Burns directors of the Tax Section of in recognition of his achieve­ Molden, who entered the law the State Bar of Wisconsin.” ments in sports. He will also school in the fall of 1948 and 1969 be honored at John Carroll dropped out in January, 1950? Terence J. Clark has been appointed chair of the Ohio University with a fitness com­ An old friend is looking for 1964 State Bar Association’s new plex named in his honor. him —Phil Whitelock at (918) John M. Widder has joined 486-4397. Koblentz & Koblentz in Cleve­ statewide Media Law land as an associate. Committee. 1943 Austin T. Klein was honored 1954 posthumously by the Tau The Dayton Bar Association 1965 1970 TRW, Inc. in Cleveland has Epsilon Rho Society at its 69th presented James J. Gilvary In the Statewide Drug Summit announced that William B. annual convention in Naples, with a Certificate of Apprecia­ in Columbus, Ohio, Kenneth Lawrence has been elected Florida. He received the Dis­ tion. The award is given once A. Rocco, judge of the Cuya­ executive vice president of tinguished Service Award for every decade to members who hoga County juvenile court, planning, technology, and his lifetime of service. Mr. have made contributions in spoke at a workshop for case­ Klein had been a member of kind by undertaking litigation workers who deal with chil­ government affairs, the legal fraternity since 1932 on behalf of and in support of dren neglected or abused Thomas C. Liber received and served as editor of its the DBA. because of parental drug use. Bowling Green State Univer­ newspaper and as its sity’s Alumni Service Award. chancellor. 1955 1966 F. Rush McKnight has been Paul Brickner has had these 1971 1948 elected secretary and general book reviews published: “For- Jack Kurant has been named Jordan C. Band, a partner at counsel of the Greater Cleve­ tas: The Rise and Ruin of the partner with Walter, Haver- Ulmer & Berne in Cleveland, land Growth Association. Supreme Court Justice” in The field, Buescher & Chockley in has been listed in Marquis’ Georgetown Journal of Legal Cleveland. Who’s Who in American Law, Ethics-, and “The Fundamentals sixth edition. 1956 of Bankruptcy Law” and “The Bernard Levine has been Fredrick S. Myers has been named the National Labor named first assistant to US. Relation Board’s first inspector Attorney Joyce C. George in general. He will be responsible Cleveland. for detecting and preventing fraud, waste, and mismanage­ ment relating to the programs An Important Notice 1949 and operations of the NLRB. Conrad J. Morgenstern was About Alumni Address Records on a panel of US. bankruptcy The Case Western Reserve University School of Law trustees at a seminar at the 1959 NEVER makes alumni addresses and telephone Commercial Law League in Saul Eisen has been numbers available for general commercial New York City. appointed secretary of the National Association of Bank­ purposes. ruptcy Trustees, which repre­ sents some 17,000 trustees However, we do share such information with other throughout the United States. alumni and often with current students, and we respond to telephone inquiries whenever the caller seems to have a legitimate purpose in locating a 1960 particular graduate. In general our policy is to be Cleveland’s “Tennis Father” open and helpful, because we believe the benefits to James A. Young has been invited to serve as a member everyone outweigh the risks. of the United States Tennis If you want your own address records to be more Association’s Junior Recrea­ severely restricted, please put your request in writing to the Director of Publications and External Affairs, Case Western Reserve University School of Law, 11075 East Boulevard, Cleveland, Ohio 44106.

Case Western Reserve University School of Law The Ohio State Bar Associa­ continuing education courses 1972 tion recently reached the in Ohio in 1988-1989. 1982 Carolyn Watts Allen was 21,000 membership mark and recently appointed Cleveland Thomas M. Parker has been marked the occasion by inter­ public safety director. elected to the Akron school viewing Steve S. Kaufman, board. Joseph J, Allotta spoke at who was that new member. Harbor Hills High School on James A. Sennett has become James E. Phillips was “Constitutional Rights of a partner with Johnson, Hoff­ appointed to the ABA Law- Individuals.” man, Fanos & Campbell in Related Education Committee. Cleveland. Rick Carbone has been named Nancy L. Walsh sent us this: law director of Lyndhurst, “1 have just taken a position as Ohio. general counsel of Meridia 1980 Jeffrey H. Friedman has been Health System in Cleveland, New partners in Cleveland law re-elected by his colleagues Ohio.” firms: John M. Gherlein and for his fifth term as vice Hewitt B. Shaw, Jr. at Baker mayor of University Heights, & Hostetler, and James A. Ohio. 1977 Goldsmith at Ulmer & Berne. Thomas J. Lee has become a Lewis S. Hastings, Jr. has partner with Kelley, McCann & been elected to the Parma Livingstone in Cleveland, 1973 (Ohio) Board of Education. James C. Diggs has been Ohio. named vice president of law at From Jack L. Litmer: “Still James W. Westfall of Marsh- TRW, Inc.’s automotive sector. with the BP America law man, Snyder & Corrigan has New partners: Stephanie Pax department, practicing in the Mark F. Swary has been re­ been re-elected president of Flanigan (photo above) at the environmental area. My family elected treasurer of the Asso­ the Lakewood Civil Service Boston firm of Goldstein & and 1 will move to Anchorage, ciation for Retarded Citizens in Commission, which has juris­ Manello; Edward W. Moore at Alaska, with BP Exploration Cleveland. diction over civil servants for Calfee, Halter & Griswold in for the next two to three the City of Lakewood and the Cleveland; John D. Robinett at George Wentz was one of five years. While 1 was in Anchor­ Lakewood School District. Schottenstein, Zox & Dunn in lawyers featured by the Valley age last December the temper­ Columbus, Ohio. Robinett was Business Journal in a lengthy ature was -I- 35°F, and in also recently elected president article about solo practice in Cleveland it was 15°F. Anchor­ of the Board of Trustees of the New Hampshire and Vermont. 1978 age—a tropical paradise! 1 Ohio Hunger Task Force. hope my luck holds out!” We received this from Chris­ At the Statewide Drug Summit 1974 tine Manuelian: “1 recently in Columbus, Ohio, Peter M. Glenn A. Galbreath has been accepted a position as an Sikora, judge of the juvenile appointed director of Cornell assistant United States attor­ court, Cuyahoga County, Le^al Aid, Cornell University’s ney in Baltimore, Maryland.” civil law clinic. He recently moderated an “Intervention Craig A. Marvinney spoke gave a speech to the Tompkins Strategies” workshop which County Magistrates Associa­ examined community-based before the Ohio House of Representatives’ Civil and tion on the clinic as the bridge programs. Commercial Law Committee to between legal education and Lynn B. Simon has formed the give the Ohio State Medical practice. He is also the faculty new law office of Simon, Blair Association’s views on the advisor for the Cornell Law & Associates, located in issue of physician-patient School’s Moot Court Board. Beachwood, Ohio. privilege. Judge Stephanie Tubbs Jones Steven M. Weiss has become of the Cuyahoga County Court a partner at the firm of Weiss, of Common Pleas was modera­ Kwait & Associates in 1983 tor of the forum “Working Cleveland. Gregory Hatcher was recently Women Make it Work” at Notre appointed traffic referee of the Dame College in Cleveland. Hamilton (Ohio) Municipal John S. Pyle has been elected Ernst & Young has named 1981 Court. He still maintains a New partners in Cleveland law vice president of the Board of Charles R. Kowal as partner private practice involving firms: Virginia S. Brown and Trustees of the Citizens in charge of personal financial personal injury litigation and Stephen F. Gladstone at League of Greater Cleveland. planning in its Cleveland domestic relations. Thompson, Hine & Flory, and offices. He will direct tax, David L. Lester has been James E. Phillips at Arter & retirement, estate and gift, and Hadden. named partner at Banik & Bell 1975 investment planning services. in Cleveland. We received this from Stanley We received this from Steven Paul A. Meyer has joined the M. Dub: “I recently left the A. Rosenberg: “In February, 1 Washington, D.C., firm of Akron firm of Buckingham, assumed the position of dep­ 1979 Graham & James. He will be Doolittle & Burroughs and Jane S. Miller has been uty district counsel at the New specializing in litigation, cor­ joined Dworken & Bernstein in named associate counsel for York District Office of the porate, and commercial law. Painesville, a firm of twelve the Ameritrust Company in Office of Thrift Supervision, attorneys with a broad general Cleveland. Department of the Treasury.” practice. This will be my fifth, Richard A. Naegele received and hopefully final, legal an award from the American position. It has provided me Institute of CPAs and the Ohio with some interesting experi­ Society of CPAs as the out­ ence. Perhaps my most unu­ standing instructor of CPA sual assignment was supervising a farm in the Costa Rican jungle.”

in brief May 1990 David W. Leopold wrote an Gerry Elman, I co-authored a 1984 article for the Cleveland Plain chapter on trademark law as it Kirk C. Katchen has joined Dealer entitled “8,000 Wait for applies to computer software Hazel, Thomas, Fiske, Weiner, Refugee Approval” based on for L. J. Kutten’s legal treatise, Beckhorn & Hanes in Washing­ his experiences representing “Computer Software.” 1 also ton, D.C., as an associate in Soviet Jewish refugees before serve as the organizer for the their insolvency section. the US. Immigration and Natu­ CORPLAW conference on ABA/ John E. Schiller has become ralization Service in Rome, net, the ABA’s computer associated with the Cleveland Italy. He also wrote a piece network. firm of Rosenzweig, Schulz & entitled “Move to Moscow Will Gillombardo. Further Limit Soviet Jewish Refugees” in the Cleveland 1986 David L. Biackner sent us Jewish News. this: “I have left Squire, 1985 Jules D. Sllberberg writes: “I Gregory J. DeGulis sent us Sanders & Dempsey’s Phoenix separated from active service this: “After 4 1/2 years in office and returned to Salt with the Air Force in order to Manhattan, I’ve returned to Lake City, where 1 have joined accept an appointment as a Cleveland to work at Janik & a newly formed litigation firm, foreign service officer with Bell. My practice includes Morgan & Hansen. Although the Department of State.” environmental work for corpo­ there is much to miss about rations and insurance compan­ From Donald L. Sugg: “As of Arizona, it’s great to be back ies. I was recently published in January, 1 have entered the in Utah so close to the moun­ ABA Tort

Case Western Reserve University School of Law Missing Persons Case Western Reserve Please help! Listed below are graduates for whom the law school University has no mailing address. Some are long lost; some have recently disappeared; some may be deceased. If you have any information— Law Alumni Association or even a clue-please call (216/368-3860) or write the Office of Officers External Affairs, Case Western Reserve University School of Law, 11075 East Boulevard, Cleveland, Ohio 44106. PresidentJohn S. Pyle 74

StuartVice President A. Laven 70 Class of 1976 Class of 1940 Class of 1961 Curtis L. Bentz Regional Vice Presidents Norman Finley Reublin James E. Meder Akron—Thomas M. Parker 79 A. Carl Maier Canton—Loren E. Souers, Jr. 75 Class of 1942 Class of 1964 Chicago-Jeffrey L. Dorman 74 Class of 1978 Peter H. Behrendt Dennis R. Canfield Lenore M. J. Simon Cincinnati-Peter E. Koenig ’81 William Bradford Martin Frank M. VanAmeringen Detroit—Robert B. Weiss ’75 Ronald E. Wilkinson Class of 1979 Los Angeles—Thomas B. Ackland Class of 1943 Class of 1965 Corbie V. C. Chupick ’70 David J. Winer Salvador y Salcedo Gregory Allan McFadden New York-E. Peter Harab ’74 Class of 1947 Tensuan (LLM) Pittsburgh—Richard S. Wiedman ’80 Class of 1980 George J. Dynda San Francisco—Richard North Class of 1966 John J. Bennett Patterson ’71 Class of 1948 Robert F. Gould Lewette A. Fielding Washington, D.C.—Bob C. Griffo ’81 Hugh McVey Bailey Class of 1981 Walter Bernard Corley Class of 1967 Peter Shane Burleigh SecretarySara J. Harper ’52 Joseph Norman Frank Paul H. Oppmann, Jr. Kenneth E. Murphy Donald J. Reino Class of 1982 James L. Smith AnnTreasurer H. Womer Benjamin ’78 Class of 1969 Heather J. Broadhurst Class of 1949 Gary L. Cannon Mark A. Ingram Stephen A. Watson Board of Governors Benjamin F. Kelly, Jr. Howard M. Simms Oakley V. Andrews ’65 Coleman L. Lieber Class of 1983 Napoleon A. Bell ’54 Class of 1970 Alayne Marcy Rosenfeld Columbus, Ohio Class of 1950 Marc C. Goodman Oliver Fiske Barrett, Jr. John F. Strong James A. Clark ’77 Class of 1984 Chicago, Illinois Mark Andrew Holland Class of 1951 Class of 1971 Carolyn Davenport Dumas ’80 Robert L. Quigley Christopher R. Conybeare New York, New York Class of 1987 Donald Edward Ryan Michael D. Franke Lee J. Dunn, Jr. ’70 Michael D. Paris Edward M. Aretz Boston, Massachusetts Class of 1952 Class of 1988 Dominic J. Fallon ’59 Anthony C. Caruso Class of 1973 Gregory H. Collins Mary Anne Garvey ’80 Allan Arthur Riippa Thomas A. Clark Joseph Williams David D. Green ’82 Thomas D. Colbridge Class of 1956 Richard J. Cronin Margaret J. Grover ’83 Class of 1989 San Francisco, California Ray James Roche Class of 1974 James Burdett JocUi E. Harley ’57 Class of 1958 Glen M. Rickies Bruce L. McDermott Owen L. Heggs ’67 Jeffrey J. Mueller Leonard David Brown John W. Wiley Herbert J. Hoppe, Jr. ’53 Robert Marc Neault Nancy A. Hronek '82 Lisa R. Schwartz Hartford, Connecticut Gwenna Rose Wootress Mary Ann Jorgenson ’75 Margery B. Koosed ’74 Akron, Ohio Jeffrey S. Leavitt '73 Milton A. Marquis ’84 IN MEMORIAM Boston, Massachusetts John S. Zarka ’42 Gerald A. Messerman ’61 Henry L. Haner '27 Bernard C. Moloney ’33 June 12, 1989 David A. Schaefer '74 February 21, 1990 December 4, 1989 Harold J. Craig ’48 Leonard P. Schur ’48 James C. Gruener ’28 Clyde K. Wiley ’33 October 29, 1989 Roland H. Strasshofer ’50 January 10, 1990 December 3, 1989 James R. Willis ’52 Roger W. Nelson ’50 Ben M. Dreyer ’29 King A. Wilmot ’33 Meu-y Ann Zimmer ’75 January 14, 1990 December 13, 1989 November 3, 1989 New York, New York Richard M! Harmody ’60 C. David Zoba ’80 William K. Watson '30 Frank D. Emerson ’40 February 4, 1990 Dallas, Texas February 27, 1990 January 24, 1990 Robert C. Bouhall ’87 Gordon C. Nichols '31 Russell J. Folise ’40 March 7, 1990 March 7, 1990 December 10, 1989 Laura Carelli Bouhall ’88 Harold Fallon '33 Valentine B. Deale ’42 March 7, 1990 Society of Benchers December 9, 1989 December 27, 1989 3 ^ fij Calendar of Events S ri- rt)

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< 0> Thursday, May 17-5 p.m. OHIO STATE BAR ASSOCIATION Alumni Reception-Dayton & Convention Center, Room 206 < % CD 5T — s, Everyone welcome! No reservation necessary. 9 p-i ^(“ oS' 0-- Is- S'Z o 2

Commencement Day CD Ruggero J. Aldisert, Law School Speaker ni a. US. Court of Appeals, Third Circuit a>

T| |i-fc 1 & American Society of Law and Medicine J Lll 1 2 Health Law Teachers Conference (see page 6)

Friday, August 3—5:30 p.m. AMERICAN BAR ASSOCIATION Alumni Reception-Chicago Hyatt Regency Hotel, Wrigley Room Everyone welcome! No reservation necessary.

CWRU Alumni Event Blossom Music Center

23 & Orientation for Entering Students 24

15 & Law Alumni Weekend 16 Class Reunions

For further information: Office of External Affairs Case Western Reserve University School of Law 11075 East Boulevard Cleveland, Ohio 44106 216/368-3860