Duke Law Magazine DEAN EDITOR ASSOCIATE EDITOR PHOTOGRAPHERS DESIGN CONSULTATION Pamela B. Gann Evelyn M. Pursley lanse Conover Haywood Dan Crawford Cassell Design Ron Ferrell LesTodd Jim Wallace CONTENTS From the Dean .. ...... ....... .. ... .. .. ... ........ ....... .. .. 1 FORUM German Unification: Political and Legal . .......... ........ .... 5 Aspects of Current Events / Herbert L. Bernstein The Hushed Case Against a Supreme Court Appointment: . 12 Judge Parker's "New South" Constitutional Jurisprudence, 1925-1933/ Peter G. Fish Capital Gains and the Laffer Curve: . ........ .... 22 The Uneasy Case for a Lower Capital Gains Tax / Richard L. Schmalbeck ABOUT THE SCHOOL Judicial Clerkships: An Exciting Opportunity. .. ... .. 31 Law Students Shine in Moot Court Competitions ....... ..... .... .. 37 THE DOCKET Duke Law Alumni on the Bench . .. .40 Alumnus Profile: John H. Adams '62, . ..... .49 Shaping Awareness of Environmental Issues Alumnus Profile: Charles L. Becton '69,. 52 Litigation Specialist and Dynamic Teacher Faculty Profile: Robinson O. Everett, ... ...... 55 A Home-Town Judge Returns Loneliness Filled Noriega's Sanctuary. ...................... ... ..... 57 Book Review: Jerry Falwell v. Larry Flynt. ... ................ .. 60 The First Amendment on Trial by Rodney A. Smolla '78 Aboullhe Cover Specially Noted ....... .. ...... .. , ... .. ... ... ........ 62 Associate Justice Joseph Story of me Alumni Activities ... .. 66 United Stares Supreme Courr is pic­ tured in an engraving from an Upcoming Events . .... ... ....... .. ..... .. ... ....... 72 original painting by Chappel. Jus­ tice Story, who was appointed to the CoUI[ ar me age ofthirty-two, served fTom 1812 to 1845. Used wim per­ Duke iAw Magazine is published under the auspices of me mission of me Collection of me Su­ Office of rhe Dean, Duke University School of Law, Durham, preme Coun of me Unired Srares. Norm Carolina 27706 © Duke University 1990 v a L U M E 9, NO.1 From the Dean n these few pages, I want to share information with you about our I most recent faculty appoint­ ments, new initiatives in the interna­ tional area, the Law School Alumni Association and Council, and the sta­ tus of our planning for the new addi­ tion to the Law School. Faculty Appointments In the 1988-89 academic year, the Law School added to its faculty two persons with tenure-Jefferson Powell, whose scholarly work is a mix of con­ stitutional history and constitutional jurisprudence, and Neil Vidmar, a so­ cial psychologist whose research in­ cludes empirical studies of aspects of the litigation process. This year two instructor in two law schools. In her of the world's economies and mobili­ persons have agreed to begin their aca­ first year at Duke, she will teach a zation of people and the rapid speed demic careers at Duke. course in evidence and a first-year of information flows. Madeline Morris is a graduate of small section in property with its ac­ In response to the need for the in­ the Yale University undergraduate col­ companying research, writing, and ad­ ternational dimension in the Law lege and law school. She is just com­ vocacy components. Her research in­ School, the faculty has increased the pleting a clerkship with Judge John terests include federal sentencing, number of foreign faculty visitors who Minor Wisdom of the U.S. Court of religion and law under the First teach and perform research at the Law Appeals for the Fifth Circuit. In her Amendment, and legal history. School. Also, the Duke University first year at Duke, she will teach a We are delighted to welcome these School of Law is the only law school in course in employment discrimination new appointments to Duke. During the United States that offers students and a first-year small section in crimi­ the 1990-91 academic year, our ap­ the special opportunity to begin their nallaw with its accompanying re­ pointments efforts will largely focus juris doctor studies in the summer in search, writing and advocacy compo­ upon the field of public international order to pursue a formal joint-degree nents. Her research interests already law, because of Professor Horace program combining the juris doctor include federal sentencing, federal and Robertson's retirement in January degree with a master of laws degree in state constitutional rights to equal edu­ 1990, and upon appointments of mi­ international and comparative law. cational opportunity, and issues in the norities to the faculty. This J.D.lLL.M. degree program at­ area of employment discrimination. tracts to Duke a significant number of Laura Underkuffler is a graduate International Dimensions students with a special interest in in­ of Carleton College, the William No university of the first rank can ternational, comparative, or foreign Mitchell College of Law, and is just today ignore international studies and law. About thirteen percent of our completing the Doctor ofJuridical programs. The curriculum and degree juris doctor student body is enrolled in Science degree at the Yale Law School. programs at the best research universi­ this program. She has extensive legal professional ex­ ties in the United States will increas­ These students have several special perience, including being a partner in ingly encompass the international di­ requirements for the LL.M. degree. In a litigation law firm, an attorney in a mensions of various subject matters, particular, they are required (i) to take state public defender's office, and an reflecting the increased integration a course on comparative legal institu- 2 DUKE LAW MAGAZINE Belgium, beginning the summer of of students from many countries with 1991. The program itself will not a broad range of interests. During the change in any important way, but the spring semester break, both the J.D.I location in Brussels will provide the LL.M. (in international and compara­ participants in the program an oppor­ tive law) and the LL.M. foreign stu­ tunity to see first-hand the European dents participated in a week-long series Commissions, the European Court of of briefings and meetings with repre­ Justice, the International Court ofJus­ sentatives of international, govern­ tice at The Hague, the U.S. Mission to ment, and trade organizations in the European Community, NATO, Washington, D.C. and New York and various international law firms. City. Many of our alumni assisted the The program will also be offered by Law School in arranging meetings and the joint efforts of our Law School and seminars, including Erik O. Autor the Law Faculty of the Free University '88, Louis J. Barash '79, James E. of Brussels (i.e., Universite Libre de Buck '60, Donna Coleman Gregg Bruxelles). The faculties of both Uni­ '74, Andrew S. Hedden '66, John A. versities are committed to providing a Howell '75, Gary G. Lynch '75, significant opportunity for law stu­ Edgar J. Roberts, Jr. '63, and dents and young lawyers to spend time Michael P. Scharf '88. I warmly Laura Underkuffler in an academic setting in Brussels that thank these alumni for their contribu­ also permits them to gain first-hand tions to the students' meetings. tions during their first year; (ii) to take knowledge of the important European The Law School's next efforts to the course on Research Methods in Community and regional and interna­ improve its international dimension International, Comparative, and For­ tional organizations located there. Our will be the search for a replacement to eign Law; (iii) to attend our four-week presence in Brussels will also provide a Professor Robertson, who retired this summer program on international and spring-board from which to develop year, in public international law. I per­ comparative law in Copenhagen, Den­ an internship program for students in sonally will be involved in the develop­ mark (the so-called "Duke in Den­ European and international organiza­ ment of a few excellent exchange pro­ matk" program); (iv) to prepare a su­ tions in Europe. grams with foreign universities for our pervised master's thesis in an area of Students interested in interna­ J.D.lLL.M. students as a part of their international or comparative law; and tional, comparative, and foreign law LL.M. curriculum. (v) to demonstate competence in a participate in a broad range of extra­ modern foreign language. curricular activities in the Law School. The "Duke in Denmark" program They operate an active International is a residential program, involving Law Society, which maintains a speak­ about sixty participants, approximately ers forum. The School of Law's Jessup one-third of whom are &om Duke Competition Moot Court team won University and the other two-thirds of the regional championships in both whom are from countries other than 1989 and 1990. Students have pub­ the United States. The faculty comes lished an International and Compara­ from our Law School and several for­ tive Law Annual and the faculty has eign universities. recently approved the conversion of Our Danish hosts have been par­ the Annual into a biannual publication ticularly helpful to Duke in planning called the Duke Journal ofComparative local arrangements and events, in rais­ and International Law, one issue of ing funds for Danish students to at­ which will always be devoted to Euro­ tend the program, and in curricular pean Community Law. development. Not withstanding the The Law School also has an LL.M. excellence of the program develop­ program for thirty to thirty-five young ment in Denmark, the Law School foreign lawyers. This program brings will move this program to Brussels, to the School an extraordinary group Madeline Morris VOL UME 9 , NO . 1 3 Law Alumni Association and Law Alumni Council All of our alumni belong to the Law School's Alumni Association, and we request each year that you make an annual dues payment to this Associa­ tion. I want to be sure that our alumni understand what this organization does and how its programs financed by your dues are an important part of the Law School's outreach to its alumni and the alumni contacts with our cur­ rent students.