Juris Magazine - Spring 2007

Juris Magazine Spring 2007

Women in Law

Justice Samuel Alito accepts the Carol Los Mansmann Award for distinguished service from (left to right) Chief Judge Donetta W. Ambrose, U.S. District Court for the Western District of Pennsylvania; Justice Cynthia Baldwin, Pennsylvania Supreme Court; Judge Joy Flowers Conti, U.S. District Court for the Western District of Pennsylvania; Judge Maureen E. Lally-Green, Pennsylvania Superior Court, President Judge Kate Ford Elliott, Pennsylvania Superior Court; and Judge Kim Berkeley Clark, Allegheny County Court of Common Pleas, Allegheny County Bar Association President (July 2006-June 2007).

The Duquesne University School of Law News Magazine

juris Spring 2007

In This Issue

1 Letter from the Editor 2 Women in the Workplace 4 Judge Cynthia A. Baldwin

Now Everyone Knows Her Name

5 Extraordinary Women and Judges 6 Justice Samuel Alito Visits Campus 8 Women in the Profession 10 When Women Don’t Ask:

How the Salary Differential Grows

11 Welcome: Duquesne Hires New Writing Director 12 Law School Anniversary Duquesne Law School Approaches 100 years: Women Make Their Mark 13 Tax Moot Court 14 Legal Battles with Bar/Bri Heat Up in California and New York Ken Feinberg - 9/11 Victim’s Compensation Fund

15 Alberto J. Mora Law School Commencement Guest Speaker 16 Grading Lawyers: A New Associate’s Guide to Performance Approisals

Wecht Institute

Gearing Up for 2007-08 Academic Year

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Editor-in-Chief Jacki Mirowitz

Executive Editor Salvatore Bauccio

Associate Editor Kelly Geer

Staff Courtney Cole Bucci Beth Dodson Andrea Goldman Kelly Kaufold Catherine B. Pober P. Matthew Roy Eleanor Vaida Sarah Weissman Jenyce Michelle Woodruff

Contributors Assistant Dean Ella Kwisnek Associate Professor Martha Jordan

17 KUDOS

Assistant Professor Kirk W. Junker

18 Duquesne Extends Network to Include Macedonia

Associate Professor Alison Sulentic

20 Preservation Easements Donations of Preservation Easements with Respect to Listed Historic Cooperatives

21 Brownfield Redevelopment and Sustainability 23 Legal Ethics Forum

24 Life as a First Year: Remaining an Individual 25 Editorial from an Alum: Immigration Reform Hits Hazelton, PA

Professor Nancy Perkins

Faculty Advisors Professor Ken Gormley Assistant Professor Kirk W. Junker

Dean of the Law School Donald J. Guter

E-mail Juris at juris@duq.edu

26 Sanitizing Your Online Image 28 Is Online Poker Legal?

Juris is an annual student publication of the Duquesne University School of Law. The views and opinions expressed herein are not necessarily those of JURIS or of the Duquesne University School of Law. © 2006 Duquesne University

Certificate Program to Feature CLE and Public Lectures

With the start of the fall 2007 semester only a few months away, the Law School’s Cyril H. Wecht Institute of Forensic Science and Law is busy gearing up for another stimulating year of lectures, laboratory demonstrations and studentbased, hands-on activities.

The Institute’s Certificate in Forensic Science and Law program, now in its sixth year, is an 8-month course of study offered on Saturday mornings to a broad spectrum of individuals interested in serving as adjuncts to the legal process.

Although designed primarily for working professionals and full-time students committed to enrolling in the entire, twosemester course, the program periodically features lectures by some of the nation’s leading forensic scientific and legal experts that double as CLE and other Duquesne University Law continuing School alumnus Glenn Cannon, education director of the Federal Emergency offerings.

Management Agency’s Response

While the Division, delivered the keynote 2007-08 address at this year’s annual schedule Wecht Institute conference. is yet to be announced, past programs open to the legal and other local communities have included lectures by crime scene investigator Dr. Henry Lee, forensic pathologist Dr. Michael Baden and evidence and exhumation expert Prof. James Starrs, as well as half- or full-day workshops on such topics as elder abuse and cyber-crime. The Institute’s annual conference, a 2 ½-day event held each spring, is also among those offerings.

Please periodically visit the Institute’s Web site at www.forensics.duq.edu for further information. You may also add yourself to the Institute’s mailing and/or e-mail lists by contacting wechtinstitute@duq.edu or 412-396-1330. 

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Letter from the Editor

This winter we thought things were different. It was as if winter never arrived and fall continued to persevere. Winter coats remained in their plastic bags, as if they had just returned from the dry cleaner; schools operated on their normal schedules, never dreaming of multiple delays and closings; and, the talk around town was about how “wonderful” global warming is. Then February arrived -- like a lion. Duquesne University, including the law school, closed for almost two days as the city fought its way out of a snow and ice storm. This weather was really not unusual, especially not for February.

Prior to the Valentine’s Day storm of 2007, we comfortably reminisced about the President’s Day weekend storm of 2003. Before February, the weather was unsurprising and predictable. No one worried about driving home in horrendous road conditions and no one had to scramble for early morning babysitting arrangements.

The feeling was content and relaxed.

It is interesting how quickly we can be lulled into a position of comfort. For years women have been pouring into law schools at rates equal to men. Yet, for some reason our numbers have not been rising at the same rate in the partnership arena. Is it because we, as a legal community, have become complacent and, in a sense, comfortable, with the roles that women have taken in the law? Or, is it something bigger? Does it fall into that black-hole category of gender bias and inequality?

When I went to high school I never gave a second thought to my future. I knew I could do anything I wanted. The key word was options. My college experience was no different. I attended a women’s college within a well-known private university. My classes were co-ed, but there was something special about having the college’s program and its administration geared exclusively toward women. For female college students the curriculum was more rigid than for the male students. Whatever the women graduates wanted to do, we could do.

Again, I stress the word options. There were no boundaries. The only boundaries that existed were created by us, the women graduates.

Fast forward several years, a graduate degree from a top-ranked private university, and a new J.D. and now I face head-on issues relating to my gender. The talk is

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­— Jacki Mirowitz —

all about gender-equality, work options (there’s that word again), and partnership opportunities. Has the profession really changed in all these years? We remain a service-based profession, although more corporate in our management than ever before.

Perhaps we could look to the medical profession for guidance in this area?

After all, if we learn anything from their changes over the last 20 years, maybe we should learn that balancing the bottom line while delivering top-notch service is imperative to success.

Yet, how do they deal with options? A surgeon can’t announce in the middle of a surgery that she has to go home; her day is over since she works part-time. Nor does she fail to respond to an emergent situation because she has filled her daily quota of patients. Perhaps, instead, she chooses an area that complements the rest of her life which is, after all, an option.

Why is the word option such a nasty, dirty word? We should celebrate the fact that the law offers so many options. Lawyers can be litigators in a powerhouse firm or estate-planners working on their own; judges deciding ground-breaking cases or hearing officers deciding how much child support should be paid; full-time in-house counsel or part-time law clerks. There is absolutely no difference in the quality of the contribution that each attorney makes. It is a fact of life, though, that there may be a difference in salary. Then again, isn’t there always?

Surgeons make more than pediatricians; CPAs make more than accounting clerks; and retail managers make more than parttime clerks. It is what it is. Does that make it wrong or just different?

Perhaps the focus should not be whether options exist within the legal profession, but rather with helping women and

men make their chosen options work for them without making them secondclass members of the profession.

Formulating model policies for alternative work schedules, determining when telecommuting will succeed, and designing realistic best practices are all just initial steps to the inclusiveness of all attorneys in the profession. Nevertheless, both attorneys and firms must recognize that options won’t work for every area of the law. A trial does not occur on Mondays, Wednesdays, and every other Thursday so that an attorney can attend nor does Motions Court wait. Practically speaking, certain areas of the law may be more conducive to options.

Just as firms need to review their options, attorneys need to be realistic with their expectations. It is easy to forget that most graduating law students look forward to a legal career spanning three to four decades.

Participation in various options may be time-limited and of short duration. Before long, the practicing attorney may wish to return to a more demanding position, or may wish to extend the option career-long.

Either way, the profession thrives.

Now that it is spring, the remnants of winter long gone, we can easily look back and realize that the reason we appreciate spring and summer so much is that it is those days in the dead of winter that cause us to long for warmer weather. Comfort is defined by the individual. That is why comfort in the legal profession means different things to different people. For that reason we should ensure that the practice of law has, and always continues to have, its many comfort options.  Jacki Mirowitz Editor-in-Chief I would like to thank a professor who has had profound influence on both my growth as a law student and upon my career, Professor Alison Sulentic. I was privileged to serve as her research assistant during my final two years as a law student. Thank you for both your mentoring and your friendship.

Jacki, who holds a Master’s Degree in Human Resources Management, received her J.D. in June. She may be reached at jackimirowitz@hotmail.com.

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Women in the Workplace ­—Kelly Geer —

Women in the Workplace in Allegheny County: Moving Forward?

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The Study In the spring of 2005, Allegheny County Bar Association’s Gender Bias Subcommittee conducted a study on gender bias in the profession. This study served as an update to a 1990 survey that focused on the presence of gender bias in Allegheny County’s legal profession.

The 2005 survey consisted of parts of the 1990 survey as well as topics of interest specifically requested by the Gender Bias Subcommittee. In September 2005, it was distributed to all active ACBA members and was returned at a response rate of 21%. When the subcommittee compared the demographics of the respondents, they discovered a return representative of the membership in terms of gender and years in practice.

The study was separated into four main sections: Preparation for Law, Current Employment, Perceptions and Attitudes, and Demographics and Home Life. At the time of the study, Allegheny County’s male membership was 73.2% and female was 26.8%, and the survey data show 70.6% male and 27.2% female (a few respondents did not supply this data so it does not add up to 100%), so in this study, there was a slightly greater percentage of women than would be the case among bar association membership.

Any female currently attending law school in Pittsburgh might think twice about practicing here after a glance at this study.

The results show a lack of equality in income, allotment of vacation days, and satisfaction with employment situation (among others). A closer look, however, revealed an explanation for the lack of equality in some areas. For example, there was a ten-year graduation difference between male versus female respondents, which could account for the difference of income in some work situations. Also, both men and women were more likely to be in higher income categories the higher rank he or she earned in law school. Men were most likely to be equity partners (24.3%) while women were most likely to be associates (40.9%). In terms of status, male associates were more likely than

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female associates to be on the partnership track. The authors of the study offered that this is partially a reflection of the earlier graduation dates of the majority of males versus females.

Law School The section, “Preparation for Law,” revealed that the largest group of female respondents graduated from law school in the 1980’s, whereas the largest group of male respondents graduated in the 1970’s. The percentage of women from top ten law schools (from U.S. News and World Reports, 2005) versus men was 3.3% to 7.9%. At the time of this study, Duquesne had a ratio of 50/50 men to women and the University of Pittsburgh had a 55/45 ratio of men to women. The authors of this study suggested that the ratio may be attributed to Duquesne’s more flexible program of night classes and the opportunity to earn a J.D. over four years instead of three.

While in law school, women reported doing just as well as men academically.

The study found no significant difference in the respondents’ presence on Law Review (28% of men and 25% of women) and more than a quarter of both women and men reported being in the top ten percent of their class and 37.6% reported being in the top quarter of the class. The only difference reported was that women were significantly more likely to report their law school rank as unknown and 50% of female respondents reported receiving honors where 40% of the male respondents reported receiving honors.

Employment Setting The most common setting for first employment for both women and men was a small firm (10 or fewer lawyers).

The second most common was a large firm (40 or more lawyers), with women beginning there more often than men (22.7% of women versus 18.7% of men).

Women were less likely than men to begin as sole practitioners (4.4% to 7%).

In other categories such as the judicial, business, corporation, government agency,

nonprofit organization, public interest law and education men and women were roughly equal in the beginning setting.

The only category in which men were more likely than women to begin their careers was “other.” More women than men were found to work 36-45 hours per week, while more men were in the 46-55 hours per week category. The study indicated a slightly higher percentage of women than men, however, working the highest number of hours, which was 56 or more hours per week.

Vacation and Benefits The average number of vacation days allotted to women was 15.07, while for men it was 17.14. Women took an average of 13.50 vacation days and men took an average of 14.96. The authors suggested that this statistic was reflective of women’s less senior positions. The use and availability of benefits exposed a similarity among the female and male respondents.

The benefits used by the largest number of female and male respondents were CLE, ACBA paid membership, and computer assistance. The benefits most desired by both female and male respondents were an on-site gym, paid health club membership, and a country club membership. The benefit that female and male respondents were most unwilling to use was part-time work.

Sources of Income In terms of the source of income for males versus females, males were more likely to benefit from bonuses, fee generating appointments, and a division of profits for shareholders. Salary comprised 74% of the male respondents’ income, while it comprised 87% for females. Women were more likely than men to have received a salary increase in the year prior to the survey. The authors noted that this might reflect the extent to which women were more likely to be in salaried positions rather than positions where income was based on other factors such as firm profit.

26.6% of both female and male respondents stated they had reason to

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An Interview think they were earning less than others with whom they work and have comparable education and responsibilities. When gender was considered, 36.4% of women and 22.7% of men reported this belief.

The reason most cited by both respondents for earning less was “other.” Of those respondents that gave a reason, a common response for males was, “type of work,” while for females it was “gender.” 72.8% of all respondents reported that salary and bonus information was only available to decision makers.

Satisfaction When asked about satisfaction, women were twice as likely as males to be dissatisfied with their current employment situation. Women were also more likely to be dissatisfied with salary decisions than men. Men were consistently more satisfied than women regarding promotion policies. When the authors analyzed the overall satisfaction, they found that income influenced men’s satisfaction levels (satisfaction generally increased with income) whereas there was no clear pattern with women. In fact, women in the lowest income groups expressed that they were very or moderately satisfied and the peak of dissatisfaction was found with women earning $300,000 to 349,000.

Women were significantly more likely to choose “always” or “usually” as a response for whether they had been interrupted or cut off when men had not. Men were more likely to report that jokes or degrading comments were made about men.

Having Spouses– Having Spouses that Work Outside the Home 84.2% of the male respondents were married while 63.5% of female respondents were married. Women were more likely to be divorced or never married than men. 20.3% of the women had never been married, while only 6.8% of the men had never been married. The male respondents reported a split between having spouses not employed outside the home and employed full time (38.4% and 37.8%), while female respondents’ spouses were overwhelmingly employed full time (82.8%). The remaining 23.8% of male respondents’ spouses were employed part

Spring 2007

time. For female respondents’ spouses, the remaining 10% work part time and 7.2% were not employed outside the home.

The Importance of Mentors The statistics regarding mentoring show a positive correlation with those who have been mentored becoming mentors themselves. For instance, the study found that 68% of male respondents and 63% of female respondents who had been mentored acted as mentors. The authors of the study cite Dean Kagan of Harvard Law School when he suggested, “mentors not only give advice but model possibilities.” The authors also noted that seeing how someone else manages to balance the stressors inside and outside of the workplace can help pose immediate solutions to the problems.

As a female about to graduate from law school, a quick glance at the results of this study elicited nothing but negative reactions: surprise, frustration, and disappointment. But knowing that there are women and men actively combating these issues provides immense hope.

While some of the results of this survey are disappointing, the survey itself provides hope. Putting these statistics out to the legal community creates an awareness that may have not been quite as clear before this study was published.

Maybe the next step is in mentoring, networking, or even simply talking about these issues with students and co-workers.

Whatever happens, working towards a more equal work environment will take the patience of everyone, since both male and female respondents overwhelmingly agreed that the law was a high-pressure profession.  Kelly Geer will be graduating from Duquesne University School of Law in June. She currently works in the legal department of Duquesne Light Company and is a member of the Corporate Law Society and Women’s Law Association. She can be reached at KellyGeer@gmail.com.

resource Phyllis G. Kitzerow, Ph. D. and Virginia M. Tomlinson, Ph. D., The Legal Profession: A study of the ACBA Membership 2005 (April 24, 2006).

with Gary Hunt & Judge Lisa Lenihan In order to gain insight and perspective on the study, I interviewed Gary Hunt, of Tucker Arensburg, P.C., and Judge Lisa Lenihan, Magistrate Judge for the Western District of Pennsylvania. Both serve as chairs for Allegheny County Bar Association’s Gender Task Force.

Kelly Geer: Do you believe the legal community is aware of the issues addressed in this survey? If not, how do you suggest promoting awareness?

Judge Lenihan: I do not think the community was aware until we published the results of the survey. Since then we have begun to educate via articles in the regular and bar newspapers, and a luncheon for all members of the bar. We also plan to continue to educate the bar on these issues, but our focus will not be on the problem, rather the solutions.

Gary Hunt: I believe that the legal community is becoming more aware of these issues, through articles and presentations. However, I believe that a large part of the legal community is not yet aware of the full range of issues. The ACBA Task Force on Gender Equality identified communication and education as two important components of any long range plan to address issues identified in the survey. As the Task Force moves towards development of a comprehensive final report and recommendations for a course of action, I anticipate that those two components will be front and center.

Kelly Geer: 26.6% of both female and male respondents stated they had reason to think they were earning less than others with whom they work and have comparable education and responsibilities. When gender was considered, 36.4% of women and 22.7% of men reported this belief. Yet, almost 73% of all respondents stated that salary and bonus information was only available to decision-makers. If salary and bonus information is not available to these respondents, there must be other factors that lead them to believe that they are not earning as much as comparable attorneys. Do you believe these factors are attributable to the work place environment? Something else? continued on page 9

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Judge Cynthia A. Baldwin ­—Beth Dodson —

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Now Everyone Knows Her Name

Last semester, while frantically cleaning my apartment and listening to music a bit too loud, I received a call on my cell phone. The number was listed as “private.”

Intrigued, I answered. On the other end was a pleasant “Hello, may I speak to Beth Dodson.” After the requisite, “This is she” response on my end, the identity of this mysterious caller was revealed. It was Justice Cynthia A. Baldwin. The first thought running through my head was, a Supreme Court Justice just called my cell phone and I have Warren Zevon blasting in the background. After the initial shock, and manic reach for the mute button, our conversation quickly became relaxed and pleasant.

One would think that a person as important as Justice Baldwin would be in a hurry to get on with more important tasks and in a rush to get off the phone with a lowly law student. She wasn’t. Justice Baldwin asked me about Duquesne, my classes, my job, what I wanted to do with my life, where I grew up and many other things. She was genuinely interested in what I had to say and was very supportive of my goals.

Justice Baldwin is an extremely intelligent, funny and caring person.

Luckily, she agreed to do an interview to give us an opportunity to learn about her on a personal level and how her experiences at Duquesne helped shape her successful career.

Why did you choose to go to Duquesne Law School?

When I started law school I had a husband and two children, whom by the way I still have, so I was limited geographically.

I asked people in the legal field whose opinions I valued and the majority of them advised me to attend Duquesne. I checked and found that Duquesne had an excellent reputation so I applied.

Do you have any stories you would be willing to share with first year students about any embarrassing or intimidating experiences you had as a first year law student and how you overcame

those situations or turned them into something positive?

Prior to attending law school I taught College English and was an assistant dean of student affairs, so I was coming from one side of the desk to the other. I don’t mind saying that I was scared to death.

A legendary professor named Murphy taught Civil Procedure and everyone was afraid of him. At that time we did cases in alphabetical order and since my last name begins with “B,” my turn came soon.

I stayed up most of the night preparing my case and was still reviewing it when he called on me. I was so deeply involved in the case that I did not hear him call my name the first or the second time. When his voice finally broke through my deep study, I answered, “Oh, that’s me.” He looked at me with an expression that said, “Who let this woman into law school when she doesn’t even know her name?” When the end of the year came I received a letter inviting me to Law Review. When I showed up for the meeting and looked into the room I saw that Professor Murphy was the Law Review advisor. When I walked into the room, I saw a different expression on his face. It said, “This woman made Law Review and she doesn’t even know her name.” Lesson learned- No matter how frightened you are, you can pull yourself together and do well in law school.

Was it a goal for you to become a Pennsylvania Supreme Court Justice while in law school?

Emphatically no. My goal was to become a good lawyer.

If you had the opportunity to re-take Duquesne, what would it be and who would teach it? one class at

I loved law school and my professors. I loved Torts with Professor McClelland, Property with Professor Hirsch, Estates and Trusts with Dean Scuillo, and Professors Mansmann and Conti’s classes. However, after the Murphy story, there is no doubt that I’d like an opportunity to answer to my name on the first try.

What is your fondest memory from law school?

I have fond memories of my study groups and the friends that I made and still have.

While at Duquesne did you participate in any extra-curricular activities, and if so, did/how did those activities impact your career?

I was active in The Black American Law Students Association and I was on Law Review. With two children, I had little time for anything else.

Do you have any advice for current law students in choosing a career path?

Don’t have preconceived notions about law school. Leave yourself open to absorb all of the experiences and then decide what you want to do.

How do you feel your experiences at Duquesne helped shape your career?

I received a good legal education and my professors and the administration were supportive. continued on page 5

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Extraordinary Women, Extraordinary Judges ­— Beth Dodson —

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In addition to being extraordinary women, Joy Flowers Conti, Kate Ford Elliott and Maureen Lally-Green have a few other things in common.

All are Duquesne Law School graduates, recipients of the Duquesne University School of Law’s Woman of the Year Award and well respected judges.

Judge Joy Flowers Conti Still Holds the Record Born in Kane, Pennsylvania, Joy Flowers Conti still holds the record for the student with the highest grade point average to ever graduate from Duquesne Law School. Before becoming a Federal District Court Judge, Joy Flowers Conti served as a law clerk to Pennsylvania Supreme Court Justice Louis L. Mandrino, she was the first woman lawyer to be hired by what is now Kirkpatrick & Lockhart, Preston, Gates, Ellis, L.L.P., and was also a member of the faculty at Duquesne Law School. Named as one of The Best Lawyers in America while she was still in practice, Judge Conti has received many awards throughout her career including the Anne X. Alpern Award, which is the highest honor given by the Pennsylvania Bar Association’s Commission on Women in the Profession.

Judge Conti is extremely active in the community and participates in activities such as serving on the board of several non-profit corporations and co-chairing the Pennsylvania Bar Association’s Task Force on Legal Service for the Poor, Part II.

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Judge Kate Ford Elliott Makes History Kate Ford Elliott currently is the President Judge of the Pennsylvania Superior Court. She is the first woman ever to lead an appellate court in Pennsylvania, and the first to hold the position in the Superior Court’s 110-year history. A Pittsburgh native, Kate Ford Elliott attended the University of Pittsburgh where she earned a B.A. in Education. After she graduated, she earned a Masters in Education and a Juris Doctorate at Duquesne. In addition to her achievements on the bench, Judge Kate Ford Elliott is a Fellow of the American Bar Foundation, and a member of both the National Association of Women Judges and the American Judicature Society. She also is a frequent lecturer on issues of Appellate Practice and Procedure.

Judge Maureen LallyGreen – That’s Who! Maureen Lally-Green recently announced that she will run for the Pennsylvania Supreme Court.

With a remarkable resume and an even better personality, Judge Lally-Green has been the recipient of many awards and is very active in the community. She is, among other things, Secretary and Member

of the Pennsylvania Intergovernmental Commission on Race, Gender and Ethnic Fairness, a member of the Board of Directors of the Epilepsy Foundation of Western/Central Pennsylvania and a member of the National and International Associations of Women Judges. Some of her achievements include: Anne X. Alpern Award recipient, St. Thomas More Award, Duquesne University Law School Distinguished Alumna Award, Who’s Who in the World, Who’s Who in America, Who’s Who in American Law, Who’s Who Among American Women, Who’s Who in Emerging Leaders and Who’s Who in Executives and Professionals.

Judge Cynthia A. Baldwin continued from page 6

Are there any causes to which you are currently dedicating your time outside of the judiciary?

I serve on several non-profit boards. I currently chair the Board of Trustees of The Pennsylvania State University; I am Secretary of the board of the Association of Governing Boards of Colleges and Universities and a member of the board of the Fulbright Association. I am also a Guest Scholar at the Brookings Institution in the Wolfensohn Center.

What is your favorite pastime/hobby?

Unfortunately, I don’t have a lot of time to pursue my hobbies, but I love travel, gardening, writing, fishing and gourmet cooking.

If you could be someone else for one day who would it be and why?

I am so blessed that I don’t want to be anyone else.

What is your definition of a good

lawyer?

A good lawyer is competent, committed and conscientious.

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Campus Visit

Carol Los Mansmann, the “First”

­— P. Matthew Roy—

­— Beth Dodson — One of two women to graduate from Duquesne Law School in 1967, Carol Los Mansmann was a woman who enjoyed many “firsts” in her lifetime.

In 1968, she was hired as an assistant district attorney and soon became the first female prosecutor to try a murder case in Allegheny County. She won.

In 1970, Mrs. Mansmann became the youngest woman ever to argue before the United States Supreme Court. Again, she won.

Then in 1985, Mrs. Mansmann was the first woman appointed to the federal bench in Pittsburgh where she served until her untimely death on March 9, 2002. She lost her battle against breast cancer at age 59.

Before becoming a judge in 1985, Mrs. Mansmann was an assistant to the state attorney general, a private practice attorney in Pittsburgh and an adjunct professor of law at Duquesne University.

After being appointed by former President Ronald Regan, Mrs. Mansmann was sworn in to her position on the U.S. District Court by Supreme Court Justice Sandra Day O’Connor.

At that time, Mrs. Mansmann told a crowd of supporters that she had come a long way for a Polish girl from Pittsburgh.

Mrs. Mansmann was always supportive of women pursuing legal careers. In her capacity as professor at Duquesne, she always encouraged women to follow their dreams.

She also served as a mentor to Judge Donetta Wypiski Ambrose, now Chief District Judge in the Western District of Pennsylvania. Judge Ambrose, looking back on the early days of her friendship with Mrs. Mansmann said she looked up to her because, “[S]he was smart.

She was nice. She was popular. She was friendly. She was Polish. I was Polish. It was a connection.”

United States District Judge Donald Ziegler believed that Mrs. Mansmann’s death was a loss to not only the bench and the bar, but also to the whole community. He said, “She was a teacher in every aspect of her life. She lived her life with truth, kindness and wisdom, as instructed in Proverbs. She is now counsel to the angels.”

In September 2002, at Duquesne University, Justice O’Connor received the first annual Carol Los Mansmann award for distinguished public service. Justice O’Connor described Mrs. Mansmann as a member of “distinguished class of jurists.” This year’s recipient of the award is Justice Samuel A. Alito, Jr. 

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Supreme Court Justice Samuel Alito Visits Duquesne University

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On April 4, 2007, Duquesne University School of Law proudly hosted United States Supreme Court Justice Samuel A. Alito Jr. and his wife Martha-Ann Alito. Justice Alito was presented with the second Carol Los Mansmann Award for Distinguished Public Service in front of an audience of nearly 1000 students, faculty, community and university leaders, attorneys and prominent guests. These included J. Jerome Mansmann and members of the Mansmann family; the First Lady of Pennsylvania; the Honorable Marjorie O. Rendell; ten judges on the Court of Appeals for the Third Circuit; federal trial and bankruptcy judges; as well as numerous Pennsylvania trial and appellate judges. This special award, named for the late Judge Carol Los Mansmann, a dedicated and respected jurist and Duquesne alumna was first bestowed on Justice Sandra Day O’Connor in 2001.

University President Charles Dougherty welcomed the guests, and Dean Donald Guter introduced a short video interview conducted by Professor Gormley with Chief Justice John Roberts of the United States Supreme Court. Noting his own fondness for Western Pennsylvania and his family ties to region, the Chief Justice first quipped that because Justice Alito is a “rabid” Phillies fan, “it is tolerant of all of you in Western Pennsylvania to overlook this and still give Justice Alito this award.”

Chief Justice Roberts, however, went on to laud Justice Alito’s diverse career in public service as a prosecutor, U.S. Attorney, Attorney in the Solicitor General’s Office, and Judge. Of his new colleague and friend, the Chief Justice remarked that, “[i]n all of those capacities, he has demonstrated dedication to the highest standards of the profession – the sort that I think Judge Mansmann would have been very proud of.”

The ceremony proceeded with a second video produced by Professor Ken Gormley that highlighted Judge Mansmann’s momentous career. Judge Mansmann, as one of only two female students in her Duquesne Law School class, served three years on the United States District Court for the Western District of Pennsylvania

before being tapped by President Reagan to serve on the Court of Appeals for the Third Circuit. A jurist known for her “boundless energy,” Court watchers predicted Judge Mansmann’s elevation to the United States Supreme Court.

Distinguished Guests Praised Judge Mansmann and Justice Alito The remainder of the program was filled with speakers who expressed deep respect and admiration for Judge Mansmann, as well as for Justice Alito who served twelve years on the Third Circuit with her.

Professor Gormley began the introduction of the distinguished speakers by remarking, “any of you who knew Carol Mansmann knows that she would never have permitted an event to have even a hint of gloominess on her account . . . she would have insisted that this day belong to the present, not to the past, and to the accomplishments to her colleague Justice Sam Alito, whom we are here to honor today.”

In keeping with Judge Mansmann’s love of celebration and good cheer, a group of distinguished speakers paid tribute to the life and work of Judge Mansmann, as well as Justice Alito. When the speakers’ remarks turned to Justice Alito – some humorous, some serious, but all heartfelt

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– a common theme emerged linking Judge Mansmann and Justice Alito: legendary talent, devotion to public service, and remarkable legal skill. Judge Maryanne Trump Barry of the Third Circuit, who was Alito’s first supervisor in the appellate division of the U.S. Attorney’s office in New Jersey, playfully teased Justice Alito for his lack of loquaciousness. However, she added that, “when he spoke, people listened.” She continued with a story of an argument that Justice Alito had before the Third Circuit while he was at an Assistant U.S. Attorney.

The issue was whether the government had committed a Brady violation and, according to Judge Trump-Barry, it was fair to say that the imposing Judge Ruggero Aldisert was not making life easy for Justice Alito. “By the end of his argument, [Justice Alito] had totally turned the tide . . . you see, when he spoke people listened; Sam was the best that there is,” she said.

In a another video address, taped especially for the ceremony, U.S. Secretary of Homeland Security Michael Chertoff, who served with Justice Alito on the Third Circuit, congratulated Justice Alito for his selection as the second recipient of the Carol Los Mansmann Award for Distinguished Public Service. “I can think of no one more deserving of this prestigious award; it speaks volumes of his commitment to the ideas that Judge Mansmann embodied throughout her career,” said Secretary Chertoff.

Highlighting the remarkable career of Justice Alito, beginning at the age of 26 as a law clerk to the Honorable Judge Leonard I. Garth of the Third Circuit, Secretary Chertoff added that, “in every job, [Justice Alito] has reflected the qualities that Judge Mansmann possessed throughout her life.”

Secretary Chertoff thanked Justice Alito for his commitment to public service and said the country was a better place because of it.

In a rare public appearance, Justice Alito’s wife Martha-Ann, who met her husband while serving as a law librarian decades ago, thanked the Mansmann family and offered some thoughts about her husband, the man and Justice. Speaking humorously of Justice Alito’s dual role as Supreme Court Justice and father of two, she noted their children’s reticence to some of his pronouncements at home - she joked, “Sam has a life beyond the law . . . is a humbling life, in our household.”

Spring 2007

The Award Presentation In a stirring moment of pride for the School of Law, six women jurists who had graduated from Duquesne Law School and had been friends of, and mentored

by Judge Mansmann, gathered on stage and presented Justice Alito with the award. These were: Justice Baldwin of the Pennsylvania Supreme Court , Chief Judge Donetta Ambrose of the Western District of Pennsylvania, Judge Joy Flowers Conti of the U.S. District Court for the Western District of Pennsylvania, Judge Maureen Lally-Green of the Superior Court of Pennsylvania, President Judge Kate Ford-Elliot of the Superior Court of Pennsyvlania, and Judge Kim BerkeleyClark of the Common Pleas Court of Allegheny County.

Justice Alito then took the podium, true to his demure style, he insisted that the program be more of a tribute to Carol Los Mansmann than to himself. He began with praise for Duquesne, having heard so many wonderful things over the years about the school from colleagues including Judge Mansmann and Judge Timothy K. Lewis, who was also in attendance, Justice Alito said, “I felt like I knew the place.”

Serving alongside Judge Mansmann for twelve years on the Third Circuit, Justice Alito told the audience, “I really marveled at all of her abilities; I was immediately struck by her intelligence, by her warmth, her collegiality, her discipline, her poise, her hard work, and her willingness to help others . . . she was the quintessential superwoman; she could do it all.” Justice Alito said he could not remember a moment where Judge Mansmann did not embody poise and grace. He called Judge Mansmann the most efficient Judge he ever knew.

Justice Alito then focused his remaining comments on an aspect of Judge Mansmann’s work that not many people are aware of: her commitment to building the Third Circuit as an institution. On this theme, he talked about the role of collegiality and respect in appellate court settings. In order to function well, according to Justice Alito, a multi-member appellate court requires a delicate balance, a balance of cooperation and individuality, compromise and independence, collegiality and autonomy. He listed two

ingredients as especially important: First, an overriding commitment to the work of the institution, which in the end takes precedence over the individual interests of any judge; and second, a deep and genuine respect for the views of one’s colleagues.

Justice Alito explained, “this means that when a colleague expresses at conference . . . an opinion about a case that’s different from the opinion that you may have formulated at your initial look at the case, your first reaction is not, ‘I’ve thought that through and it’s wrong and I reject it,’ Rather, the first reaction has to be, ‘this is the way this case has been analyzed by a colleague who is very dedicated, . . . intelligent, . . . scholarly and hardworking and is ultimately working toward the same end you are.” The first impulse, according to Justice Alito, must be to try and understand the argument as best one can in deciding whether one’s own position is correct.

Speaking to Juris after the ceremony, Judge Joy Flowers Conti offered her thoughts on Judge Mansmann, Justice Alito, and the moment of award presentation: “The whole event was a marvelous tribute to my friend, Carol Los Mansmann. She was an extraordinary woman of many talents. She will be greatly missed by all of us, and I’m proud to have called her my friend.” Judge Conti continued, “I was immensely grateful to Justice Alito for being there to accept the award.” Duquesne Law Review Managing Editor Katie Koop said the event helped her learn much about Judge Mansmann that she did not already know. “The ceremony was remarkable in that it really gave the students a vivid picture of the remarkable talent and dedication of Carol Los Mansmann’s life. Judge Mansmann was an inspiring woman.” Marie Batz, Executive Editor of the Duquesne Business Law Journal said, “Witnessing six successful, prominent Duquesne Law women, all members of either the federal or state judiciary, present the Carol Los Mannsman Award to Justice Alito was truly an amazing moment. Current Duquesne Law women should look to those who have gone before us, such as Judge Mannsman, Judge Conti, Judge Ambrose, and Judge Lally-Green, for inspiration and guidance.” 

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Women in the Profession ­—Eleanor Vaida —

President, Women’s Law Association

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The Duquesne University Women’s Law Association

The legal career of an attorney does not begin with admission to a state bar or the acceptance of a job offer; it begins with the life-changing decision to enter law school.

It is with this belief in mind that the Women’s Law Association dedicates itself to the professional development of female students the moment they walk through the doors of Duquesne Law School.

On February 28, 1973, the Duquesne University Women’s Law Association was established. It was started by a small group of women devoted to addressing the problems facing women entering the legal profession. In the early 1970’s, a primary purpose of WLA was to recruit females to enter Duquesne Law School. Thirtyfive years later it is evident that this early goal has been accomplished. Over half of the incoming Duquesne Law students are female, and many hold prominent positions within the law school as Law Review and Journal Editors, Moot Court and Trial Advocacy Participants, Teaching Assistants, Scholarship Recipients, and Organizational Leaders.

Today, the WLA is one of the most active organizations at Duquesne Law School. WLA spends each academic year recognizing the dedication of women in the profession, providing mentoring and educational opportunities for female law students, and acting as a liaison between our members and the local legal community at large; in particular, those alumnae who have survived law school and have gone on to become successful in their professions as judges, professors, attorneys and non-traditional law careers.

Members complete three service drives a year. These drives not only raise money for causes important to women but also attempt to simultaneously educate the law school community on these issues.

Each February WLA recognizes Domestic Violence Awareness Month by holding a Silent Witness Display. During this drive the organization sells purple ribbons, shirts, and baked goods to raise money for the local Allegheny County Women’s Shelter. At the same time, WLA holds legal issue presentations open to all law

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students where speakers debate and discuss the procedural and substantive law surrounding civil family law and criminal domestic violence law. Past participants have included representatives from Neighborhood Legal Services, the District Attorney’s Domestic Violence Unit, ALCOA, and the Women’s Shelter of Greater Pittsburgh. In addition to this drive, WLA conducts a Breast Cancer Awareness Drive to benefit Breast Cancer Research and organizes a service project making amenity and activity kits for families with loved ones admitted to the Children’s Hospital.

The WLA is also devoted to increasing the networking and mentoring opportunities available to female law students. The development of networking skills is a necessary component of an attorney’s life.

In addition, mentoring activities assist members in knowing what they can really expect to encounter in the legal world. It is for these reasons that WLA launched a Women in the Profession Panel Discussion.

On March 16, WLA welcomed Laura Ellsworth, Attorney-in-Charge at Jones Day; Linda Ascheson Pool, former Chief Operating Officer of Tucker Arensberg; Dana Baiocco, Jones Day; Rebecca Ross Haywood, Office of the United States Attorney; the Honorable Lisa Pupo Lenihan, United States Magistrate Judge; and Judith F. Olsen, Schnader Harrison Segal & Lewis. This event was based on a similar Continuing Legal Education Course conducted by Ms. Ellsworth in January. The panel conducted a two-hour open discussion with students about keeping your career on course, managing external stress, and work-management techniques. The panelists urged students to consider their goals prior to entering the profession and lent tips on how to successfully reach these goals while still maintaining a balanced life outside of the workplace. The panelists gave candid advice about working part-time, dealing with difficult co-workers, and the differences between big firm life, government employment, and judicial clerkships. The wide range of personalities and backgrounds of the panelists resulted

in honest and open mentoring from an assortment of perspectives.

Following this panel discussion, members and alumni met at Bossa Nova downtown for an informal social networking and mentoring event. Members received similar guidance on a one-on-one basis and had an opportunity to speak in-depth with professionals. This year marked the third anniversary of the event, and WLA is very optimistic about the growth of participation each year brings. Some members said that it was difficult at first to feel comfortable walking up and speaking with a stranger, but all became at ease after a short time. The WLA Executive Board knows that these types of events are new and unusual to most students but urged all members to attend because the WLA feels so strongly that this type of social interaction is vital to the growth of a female attorney.

The Women’s Law Association’s academic year of events ends with its signature and most prestigious event: the Annual Women of the Year Banquet. Each year WLA honors one female alumna who has demonstrated her commitment to the profession through career accomplishments, community service activities, scholarly endeavors, and dedication to Duquesne Law School.

This year’s recipient was the Honorable Stephanie Domitrovich, a graduate of the class of 1979. Judge Domitrovich was the first judge to receive a doctorate degree in Judicial Studies. She holds two masters degrees focusing on racial composition in jury pools and lectures tirelessly on achieving better representation of the minority community in jury pools. She is also President of the Pennsylvania Conference of State Trial Judges, and a board member of the Quality of Life Learning Center, Erie Youth Symphony, and Boy Scouts of America.

In addition, this year, in recognition of the important contributions recent alumni make to the legal community, WLA announced that Amelia Michele Joiner would receive the first-ever Recent Graduate Recognition Award. Ms. Joiner

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is a graduate of the class of 2002, an associate at the law firm of Reed Smith, Secretary of the Alumni Board of Governor’s, and an assistant to Professor Streib’s Trial Advocacy class. Ms. Joiner has been a guest speaker to numerous events held at Duquesne Law School since graduating and remains dedicated to her alma mater.

On April 25th WLA members, law school faculty, local members of the bench and bar, and alumni gathered in the Murray Pavilion to recognize the outstanding accomplishments of these women.

The 2006 Women of the Year Recipient President Judge Kate Ford Elliott stated that this is an exciting time to be a female and an attorney. The Women’s Law Association embraces that notion and looks forward to celebrating the achievements that our members will make as attorneys in the legal profession. 

An Interview continued from page 3

Judge Lenihan: People in workplaces discuss salary even when told not to. Many women I have spoken to know that their peers are making more than they. There may also be a subjective belief of this, but I have no firsthand knowledge of it. Gary’s subcommittee is looking at compensation and he may have more information on this topic.

Gary Hunt: Most law firms, like most businesses, are rumor mills. Partial or incomplete information on both compensation arrangements and the reasons for compensation decisions can lead to distorted views of compensation issues. Merit increases, productivity, skill levels, practice areas, and lateral hire compensation differentials are just some of the factors that can bring about compensation differences. A comparison of one lawyer’s salary to another’s is often an apple to orange comparison, and yet those factors are often not considered in the “water cooler” discussions.

Kelly Geer: Are there any other general comments you would like to make about the survey or the Gender Bias Subcommittee?

Networking begins in Law School In March, the Women’s Law Association (WLA) hosted a Mentoring Event at Bossa Nova. WLA members and local professionals discussed challenges faced by women in the legal profession. Mentors shared their personal struggles, offered advice and encouraged WLA members to continue to work toward the advancement of women in the profession. The attendance at this annual event was the highest to date, and the WLA is very grateful to the mentors who offered their time, advice, and inspiration and to the Networking Committee Chairs Wendy Kunkle, Julie Self Brennan and Andrea Goldman. 

Spring 2007

Judge Lenihan: The most astounding result to me was the fact that there has been virtually no change in the last 15 years (since the first survey). While I agree with some of the points in your article about the compensation gap, we should not dismiss the compensation disparity by attributing it to lack of women partners and women rainmakers. There are a large number of women joining law firms right out of law school, almost in equal numbers. Then the pipeline leaks and the women leave to stay home, move to government, in house, etc. We need to question why this occurs. We need to identify why there are so few women partners, even when there are an equal number of graduates.

Also, why aren’t women rainmakers? Is it because the male partners are grooming the male associates and not the female (not intentional but a reality)? Because there are no female partners to help the younger women? Because women are not taught how to generate clients?

The law remains a wonderful profession for both men and women, but it is time to address the inequalities and make it a

profession that retains the women who spend years in law school and whom firms spend money to train. Our goal is to educate, offer best practices and provide support to both women and the general legal community in accomplishing this.

Gary Hunt: I do not believe that your article addresses what I consider to be one of the most important, and yet most subtle, of the findings of the study - that a great deal of the gender disparities are attributable to “creeping” change that is brought about in large part by “choices” made my women. The real question, as I see it, is why these choices are made, and to what extent are they truly choices rather than inevitable consequences of the system.

As you note, more women than men enter the legal profession in large law firms and mid-size law firms. Large and mid-size law firms are the practice settings likely to generate the highest compensation levels.

And yet, over time, we see the percentage of women in those practice settings declining, The survey results also reveal a disproportionately higher percentage of women in practice areas that traditionally pay at lower levels than practice areas such as corporate and commercial litigation.

I believe that the study results reveal several deep-seated issues, some of which the legal profession can address, and some of which are beyond our reach. Those that we cannot address are the cultural issues.

For example, it seems clear that in many households, the role of being the primary care-giver to children is the women’s.

This can have a very real impact on the opportunities available to women lawyers.

The issues that we can address are issues such as better mentoring, creating more opportunities for networking, client contact and business development, more opportunity in the area of matter assignments, and hopefully, work environments that create more flexibility for women and men. All of those factors heavily influence income and progression in the legal field.

This very brief discussion of the issues hardly touches the surface of a large set of very complex, very subtle issues. I certainly do not have the answers, but I do believe that the ACBA Task Force is developing some of the answers, and that with the support of the ACBA, we will bring about positive change, and create more opportunities for women in the legal profession. 

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When Women Don’t Ask: ­— Dean Ella Kwisnek —

How the Salary Differential Grows, and Grows, and Grows…

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Women are paid less than men. Study after study verifies that there is often a significant discrepancy between salaries for men and women with similar qualifications in similar positions. So why is this? We can simply ascribe it to gender discrimination or we might rationalize that it results from women opting to dedicate more time to family and less time to career. However, recent research indicates that there is another factor contributing to women’s lower compensation: women are far less likely to negotiate compensation.

It is quite common for a woman to be offered a job and to respond with a thank you. That is, she accepts the offer without entering into any negotiation over salary and benefits. Men, on the other hand, will respond with counter offers. As Eric Hinton noted in How Women Can Negotiate Higher Salaries, “Too often, women believe the first offer is the last and only offer, whereas men often see the first offer as a starting point.”1 In researching this issue, Linda Babcock, one of the authors of Women Don’t Ask, examined salary discrepancies between male and female graduate students at Carnegie Mellon University. She found that only 7 percent of the female graduates had negotiated their salaries, compared with 57 percent of the male graduates.2 Interestingly, the discrepancy between the starting salaries of male and female graduates was almost identical to the amount by which those who negotiated were able to increase their salaries.3 Many theories have been considered to explain this phenomenon. Socially, women desire to build relationships. By being agreeable, women may believe that they will please their future bosses and coworkers and be perceived as team players.

Women are also far more likely to believe that if they work hard and do a good job their efforts will be recognized with increased compensation in the future.

None of these assumptions is correct.

Employers will rarely pay more than they need to. Also, women who undervalue

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what they can contribute may be perceived as less deserving of higher compensation.

Even worse, the initial failure to negotiate dooms women to receiving lower compensation than they deserve throughout their careers. Because raises are frequently a percentage of current compensation, their salaries will never equal that of those who started with higher pay.4 The solution seems pretty simple: teach women how to negotiate as men do.

Unfortunately, the reality is much more complex. If we simply tell women to behave more like men in the negotiation process, the problem will not be solved. As Hanna Riley Bowles noted in Negotiating Salary, “the world treats men and women differently.”5 Cultural expectations often result in women who are more assertive about their worth being perceived as less socially astute.

Bowles noted that male evaluators perceived women who attempted to negotiate compensation as less nice and overly demanding. Male evaluators did not have a similar perception of male

“

Too often, women believe the first offer is the last and only offer, whereas men often see the first offer as a starting point.

”

candidates who attempted to negotiation compensation. Female evaluators had a negative perception of candidates who attempted to negotiate, regardless of gender. In sum, women are caught in a Catch 22 situation. If they fail to negotiate, they will be compensated at a lower rate than their male counterparts and the compensation gap will only widen as their career progresses because of their failure to negotiate. On the other hand,

if they approach the process like male candidates and are more assertive about their worth, they may never even receive an offer.

Various societal factors have led women to underestimate their value in the market, to be satisfied with less, and to not recognize opportunities where they might ask for change. Furthermore, as noted above, women are penalized if they adopt a “tough” personal style. They are rewarded if they are perceived as friendly and cooperative and if they demonstrate an interest in the needs of others. Accordingly, for women, negotiating compensation must be a delicate balance. Each woman will have to decide for herself how to advance her interests without offending societal expectations.6 The key to striking this balance is information.

Women must enter into the interview process with information about what salaries are in the particular market for the positions they seek. Besides consulting online resources that provide salary information, women should collect information from both male and female contacts about salaries and reasonable bonus expectations. Armed with this information, women can set higher targets for salaries and bonuses and establish performance goals. Studies have also indicated that by anticipating obstacles and practicing negotiations women will improve outcomes. Being well prepared and knowledgeable gives women the confidence they need to be more successful in the process.

Women are not comfortable negotiating for good reason. Society does not reinforce such behavior. Indeed, it discourages it. As Babcock and Laschever noted “Our culture strongly discourages women from asking for what they want.”7 But it is crucial for women to get outside of their comfort zone and negotiate if they want to begin to close the wage gap. In Get Paid What You’re Worth, by Robin L. Pinkley and Gregory B. Northcraft, the authors estimate that women workers who consistently negotiate salary increases earn at least $1 million more during their careers than women who do not.8

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Welcome It would be naïve to assert that there are not other factors that will continue to impact women receiving lower salaries than men. However, by realizing that failure to negotiate salary is one of the factors leading to wage discrepancies, women can become more informed about the process and the steps they can take to increase their compensation. 

Endnotes

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Eric Hinton, How Women Can Negotiate Higher Salaries, at http://www. diversityinc.com/public/246print.cfm.

1

Linda Babcock and Sara Laschever, Women Don’t Ask: Negotiation and the Gender Divide, 2003.

2

Babcock reported that the starting salaries of men were 7.6 percent or almost $4,000 higher on average than those of women.

She further found that students who had negotiated (primarily men) were able to increase their starting salaries by 7.4 percent on average, or $4,053. Babcock and Laschever, supra at 2.

3

Resources Linda Babcock and Sara Laschever, Women Don’t Ask: Negotiation and the Gender Divide, 2003.

Hanna Riley Bowles, Negotiating Salary, at http://www.ksg.harvard.edu/ksgpress/ update/winter2006/stories/q_a.htm.

Babcock presented the example of 22-year-old equally qualified man and woman candidates who begin jobs and receive annual salaries of $25,000 and $30,000 respectively (the man negotiated and the woman just accepted what she was offered). Even if each of them receives identical 3 percent raises every year throughout their careers (unlikely due to different propensities to negotiate), by the time they reach age 60 the gap between their salaries will have widened to more than $15,000 a year, with the man earning $92,243 and the woman only $76,870. The man’s extra earnings over the 38 years would total $361,171. If he saved the difference and earned 3% interest, by age 60 he would have $568,834 more than the woman.

Babcock and Laschever, supra at 3.

4

Catherine Conrad , The Womanly Art of Negotiation, The Chronicle of Higher Education, Chronicle Careers, (July 22, 2005), at http://chronicle.com/jobs/2005/ 2005072201c.htm.

Eric Hinton, How Women Can Negotiate Higher Salaries, at http://www.diversityinc. com/public/246print.cfm.

R.L. Pinkley and G.B. Northcraft, Get Paid What You’re Worth (2000).

Women Work! Career Center, Salary Negotiation, at http://www.womenwork. org/career/careercenter/Getting_Hired/ salary.htm.

Women for Hire, Mistakes Women Make, at http://www.womenforhire.com/advice/ negotiating_salary_benefits/mistakes_ women_make.

Ella Kwisnek is the assistant dean for students and director of career services at Duquesne University School of Law. She is the secretary of the board for Friends of Lesotho, an organization that raises money to fund scholarships and projects in Lesotho.

Duquesne Hires New Writing Director

Hanna Riley Bowles, Negotiating Salary, at http://www.ksg.harvard.edu/ ksgpress/update/winter2006/stories/ q_a.htm.

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Babcock and Laschever, acknowledged that many women may resent having to work not to offend. However, “[r]esearch on the leadership styles of men and women has found that highly successful women do employ more communal types of behavior and a softer style than equally successful men.” Babcock and Laschever, supra at 107-08.

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Babcock and Laschever, supra. at 17.

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This upcoming fall, Jan Levine will join the Duquesne University School of Law faculty as the Director of Legal Research and Writing, a full-time tenured position. Professor Levine is a renowned expert on legal writing, having built the Temple University School of Law writing program into one of the highest ranked writing programs in the country.

Professor Levine was head writing professor at Temple from 1996 to 2007. Prior to that, he was an Associate Professor and Director of the writing program at the University of Arkansas (Fayetteville) School of Law. While there, he was the faculty advisor to the University of Arkansas Public Interest Law Foundation.

From 1986 to 1992, Professor Levine was an Assistant Professor and CoDirector of the writing program at the University of Virginia School of Law, where he served as faculty advisor to the Legal Assistance Society. He began his teaching career as an adjunct professor at his alma mater, Boston University School of Law, from which he graduated in 1978. Professor Levine obtained his B.A. from the State University of New York at Albany in 1975.

Duquesne Law is excited to have Professor Levine join its faculty. With him, the Law School will improve an already growing legal writing program. 

R.L. Pinkley and G.B. Northcraft, Get Paid What You’re Worth, 2000.

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Spring 2007

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Law School Anniversary ­— Jenyce Michelle Woodruff —

Duquesne Law School Approaches 100 years: Women Make Their Mark

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Duquesne University School of Law opened its doors in 1911 as a four-year program held exclusively in the evening hours. Like most law schools, during that period, Duquesne Law catered only to male students. However, in 1925, marking 1929 as their first graduating class, women were admitted. Three women attended.

Duquesne was most certainly, ahead of the curve in regard to giving women the opportunity to study the law.

20% of her class was female. She further indicates that all of her achievements would not have occurred, or would have been much more difficult, if there had not been a night program to attend. Mrs. Witter, like many other students, had a family and therefore was able to balance school and family responsibilities with the aid of Duquesne’s night program.

Driving Factors

For women, many times, career decisions are weighed on more than their own desires and passions in life. Family situations may weigh into when they might attend, and what program they might enter.

Additionally, by the time they become admitted to the bar, they are faced with many more issues. One of the biggest issues that many women are faced with is the issue of how to spend their time. For many women, in order to spend more time with their partner or children, they might choose circumstances that are more suitable for the family situation.

Throughout the school’s existence, Duquesne has admitted many women who have attended for various reasons and under a multitude of circumstances. Bernadine Meyer began Law School in 1968, taking advantage of the benefits that the night school offered. She was teaching accounting in Rockwell Hall at the time of her initial enrollment and viewed law school as a way to further her teaching career. After she graduated, along with three other women, she continued on with her teaching career.

“Though we were in the minority,” Ms. Meyer explains, “we [women] were treated the same as our male counterparts.”

Jean Witter also graduated in the 1970’s from the night program. Similar to Meyer, she entered law school to be more effective in her then, current career. She graduated from Duquesne University undergraduate school in 1949 with degrees in Chemistry and Math. Mrs. Witter began working for women’s rights groups immediately after graduation. She decided to attend law school because she was interested in legislation to help women (The Equal Rights Amendment). “I went to Law School because I thought that I would be more effective…People have a tendency to believe you or listen to you if you have a graduate degree,” remarked Attorney Witter.

After graduating in 1976, Mrs. Witter continued her women’s rights work by traveling, testifying at court proceedings and publishing articles. Currently, Mrs. Witter believes that there has been a huge improvement in the treatment of women in the workplace as well as the enrollment at Duquesne Law itself. When she attended the Law School, female enrollment was just beginning to pick up. Approximately

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Career Choices

The Associate Dean of Duquesne Law School, Vanessa Browne-Barbour, was faced with those same decisions. She began law school with aspirations of giving people a voice and viewed law school as a necessary vehicle for change. At the time of her graduation, she sought to make that change through the litigation department of Reed Smith Shaw & McClay LLP. After clerking for Judge Justin Johnson on the Superior Court, she began working long hours at the aforementioned large corporate firm. In 1998, however, she began as an adjunct professor at Duquesne Law, while continuing to work at Reed Smith. The next year, she was invited to be a full time faculty member, permanently entering academia, which she describes as, “the best of all worlds.” The Dean expounded by stating that, “it is exciting because you work with bright students, research issues . . . and are still connected to the practice of law.”

As a wife and mother, Dean BrowneBarbour’s views of her career were altered.

While working at Reed Smith, she described a sense of guilt that she carried with her: while at the office, guilt that she was not spending enough time with her son; and while at home with her family,

guilt that she was not billing more hours for the law firm. “To succeed in a large firm,” she advises, “you must have a certain level of commitment . . . to bill hours, to build a client base, to participate in firm functions, to serve on committees, etc.”

Despite her struggles, she believes that as more firms are seeking young women, they are making the necessary and appropriate changes including offering various career alternatives that allow women to enjoy both firm and family life with less or no guilt.

More Opportunities As Duquesne provided many women with the opportunity to obtain their Juris Doctor, it also provided an appropriate program. In turn, the Law School attracted many female students. Of course, only a few women wandered through the doors at first; now, women are not only a part of the Law School, but are one of its most integral driving factors.

The 2006-2007 School year marked the largest incoming first year law class in Duquesne Law history. Of those students who flooded through the doors of Hanley Hall, 46% of them were women. In the late 1950’s Duquesne added onto its night program by establishing a day program with a curriculum allowing students to graduate in three years. Additionally, Duquesne recently established a part-time day program. The degree option began in 1997 and enabled those who wished to attend school during the day, but could not devote the time required to handle a full course load, to attend. The hours of the part-time day program are between 10 a.m. and 2:30 p.m., conveniently situated during the average school day of elementary, middle, and high school students.

Lisa Barnett, a wife and mother of two young sons and a current second year of the part time day program is grateful for the opportunity to attend law school during a convenient time in which it is possible to balance her family obligations, responsibilities at work and her schooling.

“The part-time day program allowed me to pursue my professional passion for the law and yet maintain a balance in my family life,” Mrs. Barnett confirms, “there continued on page 13

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Tax Moot Court

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For good reason, the successes of Duquesne Law’s Trial Moot Court teams have been well documented. Professors Bruce Antkowiak and Michael Streib, as well as their talented team members, have put Duquesne Law on the map as having one of the top trial moot court programs in the country. Duquesne Law has also been renowned, however, for its successes in appellate moot court competitions.

In 1987, Duquesne Law participated in the National Tax Moot Court competition for the first time. The team consisted of three third-year students, and was coached

by Professor Mark Yochum (a professor of federal income tax, bankruptcy and legal ethics at Duquesne Law). The first trip was a great success, as Duquesne team member, Mary Arena Hagen, won an award as runner-up to Best Advocate, and the team took third place in the oral argument competition following a weekend of impressive performances.

The Competition is held annually in St. Petersburg, Florida and invites two- or three-person teams from ABA certified law schools to submit appellate briefs and present oral arguments in regards to federal income taxation issues. For the past twenty years, Duquesne Law and Professor Yochum have sent a team to participate in the competition every year.

This past year, Duquesne Law was

Women Make Their Mark continued from page 12

are many others in the same or similar situations in the program; it helps to facilitate many of our law school careers.”

Leading Women Apart from Duquesne producing women who lead in the outside legal community by serving as practicing attorneys, judges, professors, activists and beyond, it has fostered many students who are women who lead within the Law School. While women may be the slight minority during this 20062007 academic year, they serve as leaders in a majority of active student organizations.

Spring 2007

­— Salvatore Bauccio —

represented in the competition by third-year students, Salvatore Bauccio and Shawn McClure.

Though the competition took place from February 9-12, the team submitted an appellate brief to the competition committee in early January. The issues revolved around the discharge of tax debt in bankruptcy proceedings.

The oral argument portion The 2007 Duquesne Law Tax Moot Court team of the competition was (Sal Bauccio, Shawn McClure, and Coach Mark Yochum) organized as a three-day, dining with the team from the New England School of Law. tournament-style event. On the first day, all sixteen teams competition. “It was heartbreaking that compete. Only eight teams move on we lost after all that work, but it was nice to argue on day two, and the winner is to see the team that beat us win it all,” crowned on the third day. Awards are says McClure. given for Best Advocate, Best Brief and the oral argument competition.

Professor Yochum is currently recruiting a team to participate in the 2008 National Bauccio and McClure argued three times Tax Moot Court competition.  on the first day, and were able to advance in the tournament after compiling a 2-1 record. On the second day, however, Salvatore Bauccio recently graduated from the team faced the Stetson University Duquesne Law School with Honors. He is School of Law and was eliminated from an associate editor and contributor to the the competition after fierce argument.

Duquesne Law Review. He is also a member Though it was tough to lose after working of the Tax Moot Court team and recipient of so hard and coming that far, the team the Pittsburgh Tax Club Memorial Award. was happy to see the team that knocked Salvatore will be obtaining his LL.M. in them out, Stetson, eventually win the Taxation this upcoming year.

As Duquesne approaches its centennial year, it is only appropriate to reflect on contributing factors to its success; the students namely, being one of those factors.

The alumni show ever-growing support to their law school “family.” It is those law students who contribute that help build the University so that others may be given the advantage and opportunity to attend.

Every law student has a story; every woman has a story. Each story is embodied in the one premise that Duquesne gave the person in that story a chance, a platform for change, and a beginning. As many students enter law school to give others a “voice,” Duquesne has proven to give women both a choice and a voice. 

This article is based on interviews with alumni Bernadine Meyer, Esquire; Jean Witter, Esquire; and Associate Dean Vanessa Browne-Barbour; assorted materials from the Duquesne Law website, Duquesne Archives, and statements by Director of Admissions, Joe Campion.

Jenyce Michelle Woodruff is a second-year law student with an interest in bankruptcy and corporate law. She completed her undergraduate degree in finance at the American University.

She can be contacted at woodruffj@duq.edu.

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Legal Battles

Ken Feinberg 9/11 Victims’ Compensation Fund

­­— Kelly Kaufold —

Legal Battles with Bar/Bri Heat Up in California and New York

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Most every law student, and practicing attorney, is familiar with the bar exam preparation course, BAR/BRI. The company is receiving nationwide press regarding two pending law suits, one in New York and one in California.

Anthony Park, a Manhattan attorney admitted to the Bar in 2003, filed an action against BAR/BRI, alleging unlawful tying, monopoly leveraging and unjust enrichment. Park contends that BAR/BRI forces students to buy materials for both the multi-state exam and the state exam in violation of federal antitrust laws.

On January 11, 2007, U.S. District Judge William H. Pauley III denied a summary judgment motion filed by BAR/BRI attorneys and ruled the antitrust claim may proceed. Park was granted summary judgment in part. The judge accepted that the state bar exam preparatory materials and those for the multi-state exam are separate products, premised on the evidence that there are “numerous sellers” offering the state review and multi-state review individually. The judge also held, as a matter of law, that the 80 percent to 90 percent market share held

by BAR/BRI could coerce consumers.

These are only two of the requirements for unlawful tying. For a successful unlawful tying action, Park must still prove at trial that he was an unwilling purchaser, and there were both interstate commerce and anticompetitive effects in the market. BAR/BRI may defend by attempting to show evidence that New York bar applicants need an integrated course to pass the bar exam and, therefore, BAR/BRI’s substantial market share was not used to control competition or increase prices. The judge denied summary judgment to Park on the monopoly leveraging and unjust enrichment claims, which also will proceed to trial.

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­­— September 25, 2006 • Pittsburgh —

In California, a class action suit was filed in 2005 against BAR/BRI and Kaplan, the LSAT preparatory program. The action represents some 300,000 attorneys who purchased BAR/BRI courses from August 1997 through July 2006, and alleges that the two defendants conspired to not compete in each other’s business, which inflated the cost of bar-review courses.

left to right: Ken Gormley, Ken Feinberg and Dean Donald Guter

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Recently, a settlement was reached for $49 million ($36 million to be paid

by BAR/BRI and the remainder by Kaplan). This settlement is pending court approval; however, three of the lead plaintiffs have publicly objected to the proposed settlement. In a memorandum dated January 29, 2007, Ryan Rodriguez, Lisa Gintz and Loredana Nesci claim that the settlement is insufficient to care for the class members and rectify the wrongs they believe BAR/BRI committed.

The class representatives complain that lack of competition allows BAR/BRI to increase their prices by $100 annually, without offering any new or improved product to justify the increase. These representatives believe the case is strong enough to proceed, and are concerned that the firm representing them, McGuire Woods, a predominantly defense firm, is wary to “boldly litigate a case while wearing a plaintiff’s hat.” If necessary, the representatives plan to ask that the court reject the proposed settlement and proceed to trial.

It is expected that sales of BAR/BRI courses this year at Duquesne University will be unaffected by the litigation because BAR/BRI remains the main Bar preparatory class option. 

Ken Feinberg, nationally prominent lawyer who headed the 9-11 Victims’ Compensation Fund, spoke to a packed house at the Law School on September 26th. He visited Duquesne en route to a sold-out dinner at the LeMont Restaurant at which he received a special Presidential Merit Award from the Allegheny County Bar Foundation for his unparalleled pro bono service.

Within eleven days of the September 11th tragedy, Congress set up an unprecedented Victims’ Compensation Fund. Attorney General John Ashcroft – acting with overwhelming bi-partisan support – appointed Ken Feinberg to take on this daunting task. He spent 33 months doing this, putting on hold his law practice and working around the clock, seven days a week, meeting with families individually -- doing all of this without pay, so that he did not deplete a fund designed for victims’ families in need.

ABC News named him “Person of the Week” at the end of 2003, as the individual in the United States who had been exposed to more grief and sadness than any other public servant in the aftermath of 9-11, yet had managed to turn that grief into a ray of hope for families devastated by the tragedy. He was also named The National Law Journal’s “Lawyer of the Year” at the end of 2004.

Feinberg told a reporter that although it was satisfying on one level to work out settlements with victims’ families, one

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Alberto J. Mora Law School Commencement Guest Speaker

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by one, this was unlike any other case or mediation he had ever handled in his life because: “Happy never enters into this equation.”

U.S. District Judge Jack Weinstein of the Southern District of New York said Ken Feinberg “was probably the only person in the country who could have carried it off.”

John Farmer wrote in The Washington Post, in reviewing Ken’s acclaimed book “What is Life Worth,” that what we learn from this experience of pro bono work on such a scale – as is true of so many pro bono efforts on smaller scales – is that there were incredible qualities deep down in these families that allowed them to survive even this unthinkable tragedy.

As Feinberg himself has written so eloquently in his book: “Love was often all that survivors could cling to – a life preserver – in their effort to get through each day. They had been left behind, but they had been left behind with powerful reserves of love.”

Feinberg’s efforts led to the distribution of over $7 billion to nearly 5,300 families of victims, resolving 97 percent of the potential claim. As another book reviewer wrote, assessing his work: “With all that America has gotten wrong since September 11, it’s nice to be reminded what it has gotten right.”

Besides his work as a nationally recognized attorney and mediator, Feinberg is also an adjunct professor of law who has taught at Georgetown University, University of Pennsylvania, University of Virginia and Columbia University. 

­­— Sunday, June 3, 2007 —

Alberto J. Mora serves as Vice President and General Counsel for the International Department of Wal-Mart Stores, Inc., where he is responsible for the company’s legal affairs in its overseas retail markets, including China, Japan, Canada, Mexico, Brazil, Argentina, the United Kingdom, and five Central American countries, as well as Puerto Rico.

Alberto’s career combines extensive private sector legal experience with significant public service in the foreign policy and national security sectors.

Prior to joining the company in 2006, Alberto served as General Counsel to the Department of the Navy, a position requiring presidential appointment and Senate confirmation, which he obtained in 2001. As chief counsel to the Navy and Marine Corps, Alberto managed or supervised the 640 attorneys of the Office of the General Counsel, the Navy Judge Advocate General Corps, the Marine Corps Office of the Staff Judge Advocate, and the Naval Criminal Investigative Service, among other responsibilities.

In addition to his service with the Navy, Alberto served as a Foreign Service Officer in the U.S. Department of State (1975 – 1978), General Counsel of the U.S. Information Agency (1989 – 1993), and, concurrently with his private legal practice, on the U.S. Broadcasting Board of Governors (1995 – 2001).

Alberto entered the legal profession in 1982 and practiced initially as a trial attorney, concentrating on civil and commercial litigation. Over time, the focus of his practice shifted to international legal issues, including both transactional matters and the representation of clients in litigated and non-litigated international disputes.

Alberto J. Mora

as Editor-in-Chief of the Lawyer of the Americas, The University of Miami Journal of International Law. He is a member of the Council on Foreign Relations, and is proficient in Spanish, Portuguese and French.

Since leaving the Navy, Alberto has received international recognition for his efforts, while serving as Navy General Counsel, to prevent the abuse of detainees in U.S. custody at Guantanamo and elsewhere and for his opposition to the legal reasoning that sought to justify officially the abusive treatment. In May of 2006, Alberto was awarded the John F. Kennedy Library Foundation’s Profile in Courage Award in recognition of these efforts. 

The son of Cuban and Hungarian parents, Alberto earned his bachelor’s degree with honors at Swarthmore College in Pennsylvania, and obtained a Juris Doctor degree from the University of Miami School of Law, where he served

Spring 2007

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Grading Lawyers: ­­— Professor Alison M. Sulentic —

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A New Associate’s Guide to Performance Appraisals

So, you’re about to finish law school and you figure that once you walk across that stage to pick up your diploma, you can put report cards and grades behind you.

Wrong. Law school grades may be in your past. But call it what you will—performance appraisals, performance evaluations, annual reviews—grading doesn’t go away.

Evaluations and assessments punctuate the first decade of a lawyer’s practice.

Understanding how the evaluation process works—both formally and informally—will help a new lawyer set and achieve goals for her professional development.

opportunity to better understand her firm, her practice and, perhaps, herself.

Here are five tips for using your performance appraisal to your best advantage.

There are at least three ways to identify the standards against which your performance will be measured.

• First, the most reliable source of information about the expectations for your performance is the firm itself.

Consider adopting a straightforward approach. Ask for a blank copy of the firm's written performance appraisal form and a description of the competencies that you will be expected to achieve at each stage of your career.

This form can serve as a guideline for your professional goals.

• First, the performance appraisal is a management tool. Firms review and compare the performances of associates in order to allocate salary lines and to determine how a particular lawyer might fit into the firm’s partnership structure.

• Second, ask a mentor—whether a partner or a senior associate—to help you set achievable professional goals based on her understanding of the firm's expectations.

• Second, the performance appraisal is an educational tool. The evaluative process enables the firm both to identify its own normative expectations for associate development and to determine the extent to which the associate’s performance conforms to these norms.

• Third, the American Bar Association, state and local bar associations and many larger firms publish sample performance appraisal tools. A particularly helpful resource is Fair Measure: Toward Effective Attorney Evaluations, a publication of the ABA Commission on Women in the Profession. This loose-leaf portfolio reproduces several performance appraisal forms that are actually in use in law firms throughout the country.

• Third, the performance appraisal reinforces and extends the firm culture. The performance appraisal shifts the attention of the associate and the evaluating partners away from client concerns and refocuses attention on the internal firm relationships.

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• Perform a blame-free “post-mortem” on your professional activities since your last appraisal. Identify weaknesses in your performance and specific steps that you can take to strengthen your skills.

1. Learn how the firm evaluates associates.

From the firm’s perspective, performance appraisals serve at least three purposes.

From the associate’s perspective, performance appraisals may seem unnecessary, uncomfortable or just plain embarrassing. Unlike grades, which can be passed through the safely anonymous registrar’s office, performance reviews generally entail a face-to-face discussion of the associate’s developing professional identity. Banishing the awkward memory of this encounter as quickly as possible might be tempting. But an associate who ignores or suppresses the results of her annual review sacrifices a valuable

• Make a note of any professional development activities you have undertaken.

2. Prepare a self-evaluation before you hear what the firm has to say.

You can prepare yourself for your formal performance review by taking a good hard look at the achievements and the challenges you have encountered since your last evaluation.

• Keep a record of your accomplishments to jog your memory.

• Consider whether factors such as personal disposition, stereotyping and perceptions of workplace relations unnecessarily distort your selfassessment.

3. Listen carefully to the evaluator’s presentation.

While performance evaluations provide valuable feedback concerning a lawyer’s professional development, listening to and delivering criticism and suggestions for improvement can be awkward.

An associate’s uneasiness during a discussion of his or her performance is probably matched only by the discomfort of the attorney whose job is to deliver the performance evaluation.

To make the most of your performance evaluation, try to see through the veil of emotions in order to focus on the factual statements that your evaluator presents.

• Be attentive to the actual phrases used by the evaluator to describe your performance. Your own emotions and your confidence in your evaluator may cloud your ability to accept and act on legitimate criticism.

• If you are uncertain about the meaning of an evaluator’s comments, ask for clarification. Greater understanding of an evaluation will help you to identify the actions that you can take to enhance your career.

• Ask for suggestions on how to improve performance and help in identifying specific areas for professional growth.

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4. Identify an action plan for attaining your employer’s goals during the next appraisal period.

Now that the discussion with your supervisor is over, you face two choices.

You could drop the paperwork in a file and forget the whole thing. In the alternative, you could sift through the information you received and make a plan to strengthen the areas in which you received positive feedback and correct any problems that were noted.

• Your supervising attorney or another mentor may be helpful to you in identifying specific goals.

• If a mentor or “coach” is not available to you within the firm, consider hiring a professional coach to help you formulate a plan of action.

5. Identify and create an action plan to reach your own goals during the next appraisal period.

• Continuing legal education programs offer opportunities to advance your skill and knowledge in ways that your firm may not be able to accommodate.

• Join your local bar association and the American Bar Association in order to meet others with your interests. You may be the only person in your firm with an interest in a particular quirk in the tax law, but chances are that there is someone else in the legal community who shares your enthusiasm.

Once you leave law school, your career is in your hands. Use your performance appraisal to help yourself become the lawyer you want to be—not the lawyer your professors want you to be and not the lawyer your firm wants you to be—the lawyer you want to be. 

Congratulations to Melissa Antoszewski whose article, Las Vegas Style Investing: In the Absence of Regulation, Risky Hedge Fund Bets Can Win Big and Lose Even More, was published in the Spring 2007 issue of Transactions: The Tennessee Journal of Business Law (Volume 8, Issue 2).

Congratulations to Sarah Riley, a recent graduate who has been awarded a 2007 Burton Award for her article: Title IX Prohibits Retaliation Against Plaintiff Who Complains of Sex Discrimination, Even if Plaintiff is Not Recipient of Original Claim

Recommended Reading

of Discrimination: Jackson v. Birmingham

Your law career may last more than four decades. Getting and keeping your first job may be your immediate concern.

While your current employer has a great deal of influence over your daily working life, you are in charge of your career. It is important to recognize that your career goals may differ from the short-term needs of your employer.

American Bar Association, Best Practices in Attorney Professional Development: heading Off and Handling Wrong Turns (2004).

Board of Education. The Burton Awards,

American Bar Association’s Commission on Women in the Profession, Fair Measure: Toward Effective Attorney Evaluations (1997).

and encourage the use of clear language

For example, a firm may prefer that an associate in a busy litigation practice spend as many hours as possible going through documents that have been turned over in discovery. If the associate wants to work on courtroom skills, however, spending a year or two in document production may not seem entirely appealing. An employee benefits lawyer who is interested in executive compensation may not be getting the well-rounded training she needs if her daily work consists only in reviewing qualified domestic relations orders.

Austin G. Anderson and Sandra J. Boyer, The Effective Associate Training and Development Program (2d Ed.) (2006).

from nominations submitted by law

• Ask for the training you need. Most firms invest a significant amount of time and money in training young associates. It is in the firm’s interest to help you achieve your long-term goals within its practice.

Spring 2007

M. Diane Vogt and Lori-Ann Rickard, Keeping Good Lawyers: Best Practices to Create Career Satisfaction (American Bar Association) (2000).

modeled after the Pulitzer Prize, recognize excellence in legal writing and the avoidance of legalese. Only 15 recipients were chosen as winners schools across the nation. Among the other schools fielding winning entries this year are Yale University, Columbia University, University of Pennsylvania and Georgetown University.

Professor Alison Sulentic is a tenured member of the faculty of Duquesne University School of Law, where she teaches commercial transactions, health law, employee benefits and Catholic social thought. Professor Sulentic received her A.B. and J.D. degrees from Harvard University and her M.A. in History from the University of the Witwatersrand in South Africa. Before she came to Duquesne University, she practiced law with two of the leading law firms in Texas, where she specialized in employee benefits and pension law.

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Duquesne Extends Network to Include Macedonia ­­— Professor Kirk W. Junker —

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Assistant Professor of Law and Director of International Programs

Bronze corners mark the foundation where the little birth house stood of Gondza Bojadziu, known to much of the world as “Mother Teresa,” until the 1963 earthquake that destroyed much of Skopje. The architecture of Skopje has suffered both from the earthquake and the years of the socialist economy of style. On a clear day, one can see that the city, connected on either side of the Vardar River plain by its famous symbol, the fifteenth century Stone Bridge, is surrounded by mountains that are still snow-capped in March. The locals report that Skopje has not escaped climate change either, and for the first winter in memory, there was no snow in the city in the winter of 2006-07.

Bojadziu is in many ways a synecdoche of Skopje. Born in 1910 of Albanian parents and raised a Catholic,1 she spoke Vlah. Through much of history, Skopje’s geographic position meant that it needed to accommodate differing languages, ethnic identities, religions, and sometimes, occupying forces. Each of these can be seen, heard or tasted today.

Skopje, home to 600,000 residents, is the capital of the poorest of the former Yugoslavian Republics, and the only Balkan state not to have seen armed violence during its secession from former Yugoslavia in 1991. During my visit, I was invited by the US Embassy, which opened in Skopje in 1996, to attend a roundtable discussion chaired by Prime Minister Nikola Gruevski, set up to address the problem of trafficking in persons. (Being a European crossroads has its inherent problems as well.) At the roundtable I also met Mr. Paul Wohlers, Deputy Chief of Mission at the Embassy, and Mr. Nikola Dimitrov, Ambassador, National Coordinator for NATO and former Macedonian Ambassador to the USA. The main contact between Duquesne University School of Law and Macedonia is Resident Justice Department Legal Advisor to the Embassy, Barbara Carlin, Esq., a Duquesne Law graduate. It was Ms. Carlin who invited Duquesne to collaborate with Sts. Cyril and Methodius University Faculty of Law. Ms. Carlin and a delegation of judges and prosecutors visited

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Skopje skyline

Duquesne in 2005 and again in April 2007, and have been in correspondence with Deans Cafardi and Guter in an effort to establish some sort of collaboration.

The guests of the hotel lobby of the Holiday Inn, Skopje, could have been a casting call for a James Bond movie—FBI, UN, and other international law enforcement, international business, and embassy employees, speaking half a dozen languages.

While visiting Skopje, I also presented a research paper on judicial review in the European Union to a training session for Macedonian judges in anticipation of joining the EU, which was supported by the US Office of Overseas Prosecutorial Development, Assistance and Training (OPDAT) program. I had begun that research for Duquesne’s “Judicial Review in the Americas and Beyond” Conference in November of 2006. Duquesne law students Matthew Roy and Greg Landgraf contributed to the research. The following day in Skopje, I presented a paper, “Ethical Emissions Trading and the Law,” to seventy-five international law students at the law faculty of Sts. Cyril and Methodius, in which I compared the air pollution emissions trading systems of China, the US and the EU, and critiqued the legal and ethical shortcomings of all three systems.

Through the cooperative efforts of Dean Gale Galev and his vice-deans, among whom is my counterpart, Prof.

Saso Georgievski, Program Director of International Cooperation, another nonviolent “revolution” of sorts has occurred.

The previous legal educational system labored under dark and corrupt practices, including professors’ alleged open sale of grades to students, who were marked only by oral examinations. In the face of this, and in anticipation of complying with the EU’s Bologna reforms and standardization requirements for European education, the law faculty at Sts. Cyril and Methodius, the largest law faculty in this candidate state for accession to the EU,2 Dean Galev and his colleagues are justifiably proud to have reconstructed the curriculum to include anonymous computer-generated examinations that are anonymously graded, a credit-based portfolio of student progress carried by each student in a microchip on his or her identity card, and accessed by the University on shared databases, and a 3 + 2 year degree structure, apace Bologna, which in turn is modeled on the US.

left to right: Dr. Kirk W. Junker; Professor Sasho Georgievski, Vice Dean, Faculty of Law, Sts. Cyril and Methodius, Skopje; Ms. Irena Pandeva, Coordinator for International Cooperation, Faculty of Law, Sts. Cyril and Methodius, Skopje.

The “test case” (as Prof. Georgevski likes to call it) of Macedonia even negotiates its name. The U.S., most of the countries of Europe and elsewhere recognize Macedonia as it names itself in its constitution—“The Republic of Macedonia.” But Greece does not, insisting upon “Former Yugoslavian Republic of Macedonian” or “FYROM,” and the European Union accepts this distinction. Greece has gone so far as to interrupt joint criminal investigations

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About Barbara Carlin, Esq. if authorities use the name “Republic of Macedonia” on documents. When one crosses the border into northern Greece by car, one is greeted by a sign, in English: “Welcome to Greece. Welcome to Macedonia.” But yet one of the biggest trading partners with the Republic of Macedonia is Greece.

Melissa Ruggiero, L’03 is completing her LLM in human rights law in a joint program offered by The Queen’s University of Belfast and the National University of Ireland at Galway. Just as this issue of Juris goes to press, she will be making a study visit to Skopje to work with faculty on issues of human rights law concerned with trafficking in persons—one of the disadvantages of a city and country truly being at a crossroads.

In addition, Ms. Natasha Stamenkovik, a law student from Skopje, will be coming to Duquesne for a clinical study visit in the autumn of 2007. Students interested in EU law, international law, or human rights law and who may want to visit Skopje, should contact Professor Junker junker@duq.edu. 

Barbara Carlin, Esq. graduated from Duquesne law school in 1982.

While in her last year at Duquesne, she was the first law clerk for Judge Carol Los Mansmann. Carlin then became an assistant U.S. Attorney for the Western District of Pennsylvania. Having always had an interest in international law, she applied for a position advertised within the Justice Department for the Office of Overseas Prosecutorial Development, Assistance and Training (OPDAT). She is now a Resident Legal Advisor at the United States Embassy in Macedonia.

Juris: What is the nature of your work as the Resident Legal Advisor at the U.S. Embassy in Macedonia?

BC: “[Overall], it is to strengthen the investigative, prosecutorial and adjudicative skills of the police, prosecutors and judges in Macedonia – although we are also in 27 other countries as well.”

Juris: What are the main legal issues that you confront in your capacity as Resident Legal Advisor?

BC: “Each country has different issues that are paramount to them; so training is country-specific. It has been of prime importance for the U.S. embassy to combat human trafficking, corruption, and money laundering in Macedonia, for example. Our training is geared to those issues.” left to right: Kire Todorovski, Secretary of the National Commission for Combating Trafficking in Persons; Paul Wohlers, Deputy Chief Of Mission, US Embassy Skopje, Republic of Macedonia; Barbara Carlin, Resident Legal Advisor, DOJ OPDAT, US Embassy Skopje, Republic of Macedonia; Nikola Dimitrov, Ambassador, National Coordinator for NATO (former Macedonian Ambassador to the USA); Dr. Kirk W. Junker; Mariana Neisuler, Political Officer,US Embassy Skopje, Republic of Macedonia

“We are also working with the Ministry of Justice of Macedonia on legislative materials such as the Code of Criminal Procedure. It needs to be revised and OPDAT will work to make sure the Code is in compliance with international and EU law.”

ENDNOTES The Republic of Macedonia is today four per cent Catholic, sixty-five per cent Byzantine Orthodox and twenty-nine per cent Muslim.

1

Criteria for candidate state accession to the EU, called the “Copenhagen Criteria,” can be found on the official website of the European Union, “Europa,” at http:// europa.eu/scadplus/glossary/accession_criteria_copenhague_en.htm

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Spring 2007

Juris: How is Macedonian law different, and how did you adjust your training?

BC: “Since my training was in the common law, I had to retool my thinking about how civil law issues work. For example, a prosecutor under the civil law can appeal an acquittal, whereas in the US, we are precluded from doing that based on the Constitution. At a criminal trial, there are not 12 jurors, but rather just one judge and two lay judges. There are no verbatim transcript of trial proceedings, and no reporter system, though there are published decisions of the Macedonian Supreme Court.”

Juris: You have been in contact with Deans Guter and Cafardi in an effort to establish some sort of collaboration between Duquesne’s School of Law and Sts. Cyril and Methodius University Faculty of Law. What kind of collaboration are you hoping for?

BC: “We hope to establish an exchange of both professors and students so that each has a better understanding of the rule of law and how it is applied in each country. US – Macedonia relations are good and we hope to strengthen [the relationship].

Juris: Do you have any advice for those interested in using their law degrees abroad or in an international setting?

BC: “I would suggest a basic understanding of the law and international law; the conventions and protocols would be most helpful for anyone interested in a career in international law.

Look at positions offered by the UN, OSCE, or the International Organization for Migration (IOM).

I had been a prosecutor for 19 years, and while I don’t think 19 years of experience is necessary, some experience helps before treading into international waters.

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Preservation Easements ­­— Professor Martha Jordan —

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Donations of Preservation Easements with Respect to Listed Historic Cooperatives

The Internal Revenue Code (“IRC”) encourages homeowners who live in buildings listed on the National Register of Historic Places to protect the architecturally significant features of their home by allowing a charitable contribution deduction for the grant of a preservation easement to a charity dedicated to historic preservation.1 A preservation easement is an agreement between the homeowner and a charity which gives the charity the right to prevent the homeowner and all future owners from altering or destroying architecturally significant features. The extent of the charity’s control over the home depends on the terms of the easement. Most preservation easements grant the charity the ability to control changes to the exterior facade; however, some also prevent the homeowner from adding on to the home, or developing the land on which the home sits.

Preservation easements play an important role in the preservation of our country’s built-environment and provide benefits beyond the preservation of a building’s architectural features or the allowance of an income tax deduction. But for many donors, the importance of the income tax deduction cannot be overstated. Homes are expensive to maintain and older homes tend to be more expensive than newer ones. Repairs that replicate the materials and the craftmanship of a previous era make maintenance even more costly. A homeowner who grants a preservation easement may use the resulting income tax savings to underwrite the additional cost of preserving the home’s distinctive features.

One issue I am currently exploring is the proper tax treatment when a homeowner who lives in a cooperative listed on the National Register of Historic Places grants a preservation easement with respect to her home. The ownership structure, peculiar to cooperatives, raises the question of whether the homeowner will be able to claim a charitable contribution deduction.

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Unlike the ownership structure for a condominium, a structure in which each owner holds title to her individual unit and holds an undivided interest in the common areas, the residents of a cooperative have no interest in the underlying property.2 Instead, a corporation, the cooperative housing corporation (“CHC”), owns the entire premises, including each resident’s individual unit; residents merely own stock in the CHC.3 The corporate form of cooperative ownership may adversely impact the tax consequences of a homeowner who donates a preservation easement to charity.

If the owners of a condominium decide to grant a preservation easement on their multi-unit condominium building, each individual owner is entitled to claim a charitable contribution deduction for the portion of the easement attributable to her individual interest in the property.4 If the owners of a cooperative decide to grant a preservation easement with respect to their multi-unit building, the question is whether the resulting charitable contribution deduction belongs to the CHC or to its shareholders.

The CHC is the legal owner of the property encumbered by the easement.

Consequently, if the tax consequences are determined by form alone, the deduction should belong to the CHC. The sole purpose of a CHC, however, is to hold the building for the benefit of the residents. CHCs very seldom have income; they simply collect money from their shareholders to cover taxes, mortgage interest, repairs and other expenses.

In certain instances tax law ignores the cooperative form of ownership and treats the shareholders of a CHC as the beneficial owners of the underlying property. Section 216 of the IRC, for example, provides that all taxes and interest paid by the CHC, as well as any depreciation deductions with respect to the underlying property, are deductible by

the shareholders.5 Even in the absence of a specific directive by the Code, however, there are situations where the IRS treats the shareholders of a CHC as the beneficial owners of the property.

For example, when a shareholder of a cooperative donates a remainder interest in her cooperative stock the Regulations treat the shareholder as owning, and donating, an interest in the underling property.

Generally speaking, the Code does not allow a charitable contribution deduction for a gift of a partial interest in property, including a gift of a remainder interest.6 An exception allows the donor of a remainder interest to claim a charitable contribution deduction if the remainder interest is given with respect to the donor’s personal residence.7 For purposes of the partial interest rule, a shareholder in a cooperative who donates a remainder interest in her cooperative stock is considered to have given a remainder interest in her personal residence and is entitled to claim a charitable contribution deduction for the gift.8 Furthermore, for purposes of valuing the remainder interest, the shareholder is treated as having made a gift of her allocable share of the underlying property, the land and the buildings.9 Building on the treatment afforded gifts of remainder interests with respect to stock in a CHC and other provisions where the Code or the IRS ignores the corporate form of cooperative ownership, I plan to explore in a future article the question of whether one can make a strong argument that a grant of a preservation easement, another partial interest gift that is excepted from the general rule disallowing a charitable contribution deduction for a gift of a partial interest in property,10 should be treated as a donation by each shareholder of the CHC. Such an approach would entitle each shareholder to claim a charitable contribution deduction for her allocable share of the total value of the preservation easement and put the shareholders of cooperatives on an equal footing with condominium owners. 

JURIS

Brownfields Professor Jordan has taught at the Law School since 1992. She received a B.S. in Mathematics from the University of Memphis, a J.D. from the University of Arizona, and an LL.M. in Taxation from the University of Denver. Her scholarly interests include Historic Preservation and Taxation. She also serves on the Board of Pittsburgh History and Landmarks Foundation.

Brownfield Redevelopment and Sustainability ­­— Professor Nancy Perkins —

Professor Jordan would like to thank Mary Jensen, her research assistant, for reading and proofing this article. All mistakes are my own.

Endnotes 26 U.S.C. § 170(h). The charitable contribution deduction is not confined to preservation easements granted with respect to homes but is available for preservation easements granted with respect to all buildings listed on the National Register of Historic Places. Id.

1

L

Herbert Hovenkamp & Sheldon F. Kurtz, The Law of Property 494-499 (2001).

2

Id. at 495-6. See also 26 U.S.C. § 216(b)(1).

3

26 U.S.C. § 170(a),(h).

4

26 U.S. C. § 216(a). See also 26 U.S.C. § 121(d)(4).

5

26 U.S.C. § 170(f)(3)(A).

6

26 U.S.C. § 170(f)(3)(B)(i).

7

Treas. Reg. § 1.170A-7(b)(3). See also Priv. Ltr. Rul. 8431007 (April 20, 1984).

8

Treas. Reg. § 1.170A-12(a)(2).

9

26 § 170(f)(3)(A),(f)(3)(B),(h).

10

Spring 2007

Like many rust belt cities, Pittsburgh is host to numerous brownfields - properties once used for industrial purposes that now lie vacant. Many of these eyesores are contaminated, but not to such a degree that would make them targets of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as the Superfund.1 Nevertheless, for years developers and investors avoided these sites because they feared CERCLA’s demanding remediation standards and its strict, joint and several liability.2 Often, investors chose to build on undeveloped land, rapidly consuming the Commonwealth’s greenfields and contributing to urban sprawl.

The past decade has seen a dramatic turnaround in brownfield development in Pennsylvania, thanks to the Land Recycling and Environmental Remediation Standards Act.3 Also known as Act 2, the law provides developers with the flexibility to select clean up levels from a menu of remediation standards, and allows them to tailor their clean up obligations to the projected use of the land. Further, upon a cleanup’s approval by the Department of Environmental Protection, the owner, developer, and their successors are released from liability under Pennsylvania’s environmental laws.4 Not surprisingly, Act 2’s relaxed remediation standards and

liability protection have made brownfields more attractive to investors.

The proof is all around us. One prominent example is the South Side Works, where the Urban Redevelopment Authority of Pittsburgh (URA) took advantage of Act 2 and remediated the 123-acre LTV Steel site on Pittsburgh’s south side. Today the site is an attractive mixed-use development in a place where the decaying remains of a Monongahela Valley steel plant stood only a decade earlier.

Act 2 is credited with the remediation of 2,194 brownfields and the creation or retention of 76,000 jobs since its enactment in 1995.5 Like similar laws across the country, Act 2 also is celebrated for promoting sustainable development, an integrative development approach that simultaneously considers economic, social, and environmental factors.6 Act 2 certainly addresses environmental and economic concerns by facilitating site remediation and generating development in Pennsylvania’s communities. Indeed, the Rendell administration’s brownfield strategy features a multi-billion dollar economic stimulus package aimed at creating jobs and spurring economic development.7 Act 2’s attention to social objectives is less certain, however. continued on page 22

21

Brownfields continued from page 21

Endnotes

Pennsylvania’s brownfield policy includes community sustainability among its goals,8 yet despite this promise, brownfield laws such as Act 2 often fail to give the social justice component of sustainability the attention it deserves.9 This neglect is ironic, given that the most successful brownfield developments take into account the social concerns of their host communities.10 How is it possible that cleaning up communities while creating jobs may not improve social conditions? Problems arise when nearby residents have no voice in clean up and development decisions. A community may want to transform a brownfield into a lowincome housing development, a park, or a job training center, uses that would improve social conditions by bettering the lives of residents. On the other hand, the site owner may envision upscale loft apartments and high-end retail establishments, hoping to lure new residents and shoppers from more affluent neighborhoods. Both plans would provide environmental and economic benefits and some degree of social advantage, but the developer’s plan overlooks uses that could increase the overall social benefit of a project.

Like most brownfield laws, Act 2 requires little in the way of public participation, so owners and developers are largely free to proceed without reaching out to residents and other stakeholders. Yet a truly sustainable brownfield project depends on the community’s ability to bring its desires and concerns to the attention of developers through meaningful participation in the planning and remediation process. This reality exposes the tension between Act 2’s streamlined process and the goals of sustainability.

This tension dissolves somewhat when a public entity purchases a brownfield and undertakes remediation and planning on its own. The URA, for example, routinely includes communities in the brownfield planning process. In fact, the South Side community was heavily involved

22

42 U.S.C. §§ 9601 – 9675 (Supp. III 2003); Kristen H. Engel, Brownfield Initiatives and Environmental Justice: Second-Class Cleanups or Market-Based Equity, 13 J. Nat. Resources & Envtl. L. 317, 318 (1998).

1

Engel, supra note 1, at 322-23.

2

35 PA. Cons. Stat. Ann. §§ 6026.102 – 6026.908 (1995)

3

in many crucial decisions at the South Side Works and remains involved today.

Despite success stories like this, the risk of minimizing or ignoring community issues remains high in privately remediated and developed sites.

Pennsylvania has taken an important step to better integrate local social concerns into its brownfield program. As part of its brownfield management approach, the Rendell administration has created Community Action Teams (CATs) to assist communities that are struggling with redevelopment efforts.11 Helping community residents ready themselves for brownfield development not only will empower them, but will legitimize them in the eyes of developers, who may in turn become more willing to include them in the decision making process. As the CAT effort takes root and as developers increasingly realize that community input can improve their projects, Pennsylvania’s brownfield policy will become increasingly sustainable and environmentally just.12 

35 PA. Cons. Stat. Ann. § 6026.501.

Liability protection will be lost, however, if certain circumstances – known as reopeners – occur. § 6026.505.

4

Pa. Governor’s Rep., Revitalizing Pennsylvania, A Report on Brownfield Investments 2003 – 2006 (2006). It is estimated that there are as many as 12,000 brownfield sites in the Commonwealth. Id. at 2.

5

See Joel B. Eisen, Brownfields Policies for Sustainable Cities, 9 Duke Envtl. L. & Pol’y F. 187, 196 (1999).

6

Pa. Governor’s Rep., supra note 5, at 2.

7

Id.

8

See Eisen, supra note 6, at 218.

9

See Joel B. Eisen, Brownfields Redevelopment, in Stumbling Toward Sustainability 462 (John C. Dernbach ed., 2002).

10

Pa. Governor’s Rep., supra note 5, at 4.

11

Nancy Perkins, Professor of Law, teaches courses in property and environmental law.

She is the author of numerous articles that explore the intersection of environmental regulation with land use laws and justice.

Most recently, she has written about developments in international sustainability law and how they might energize the environmental justice movement in the United States. She has also prepared a comparative case study of the environmental justice ramifications of the brownfield developments at The Waterfront and Southside Works. Her reflections are an outgrowth of that latter work.

The author recently presented her comparative case study of the Waterfront and South Side Works developments at a national symposium of smart brownfields redevelopment at Boston College Law School. That work will be published in an upcoming issue of the Boston College Environmental Affairs Law Review.

12

JURIS

Legal Ethics Forum ­­— Catherine B. Pober —

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Sex, Lies, and Prosecutorial Misconduct1

Last spring, a grand jury indicted three white members of the Duke University lacrosse team for the alleged rape of a 27year-old African American college student.

Inflamed by overtones of race, gender, politics, and privilege, the story caught the nation’s attention. The ethical issues caught ours.

As the rape investigation ensued, the lead prosecutor, Durham District Attorney Michael B. Nifong, faced accusations of ethical violations and prosecutorial misconduct for his handling of the case.

The criticisms proved compelling and culminated in a formal ethics complaint filed against him by the North Carolina State Bar Association on December 28, 2006. The initial complaint accused Mr. Nifong of making inflammatory statements about the lacrosse players in media interviews and misleading the public with his remarks about the evidence. Mr. Nifong withdrew from the case, citing a conflict of interest. His 27-year career as a prosecutor is now in jeopardy of unraveling.

brutal crime. He referred to them as “a bunch of hooligans” whose “daddies could buy them expensive lawyers.”

Such prejudicial publicity demonstrates a disregard for rule 3.8(f) of North Carolina’s code of professional conduct, which bars prosecutors from “making extra-judicial comments that have a substantial likelihood of heightening public condemnation of the accused.”2 When DNA evidence failed to match any of the three alleged attackers, Mr. Nifong dismissed the results, explaining that the absence of DNA meant the attackers might have used condoms. The North Carolina Bar took issue with this explanation, charging that Mr. Nifong had engaged in “dishonesty, fraud, deceit or misrepresentation” by his suggestion to reporters that the alleged attackers used condoms when he had in his possession a sexual assault examination report in which the accuser stated that no condoms were used and that at least one of the attackers had ejaculated inside of her.

The sordid story began on the night of March 13, 2006, when the Duke University lacrosse team, at the time ranked second in the nation, hired two exotic dancers to perform at a team party held at a small house near the Duke campus. One of the strippers later told police that three of the partygoers pulled her into a bathroom and raped her “anally, vaginally, and orally” while they “hit, kicked, and strangled” her during a “30 minute” time frame. The lacrosse players insisted on their innocence, stating that there was no rape or sex at the party.

District Attorney Nifong responded to the woman’s allegations with an overzealous and very public investigation.

Notwithstanding the absence of incriminating DNA evidence, three Duke lacrosse players were indicted on charges of rape, sexual offense, and kidnapping.

The indictment was based largely upon what some experts have described as a fatally flawed photo line-up. The accuser was shown only photographs taken by police of all forty-six white Duke lacrosse players. The procedure was sharply criticized as improperly suggestive in violation of local, state, and federal guidelines that recommend using “filler“ photographs of uninvolved people to protect against the risk of false identifications. District Attorney Nifong was quoted as saying that the propriety of the identification procedure would be up to the judge to decide.

In what amounted to a media blitz, Mr. Nifong conveyed to the news media that he was certain the Duke lacrosse players had committed a horrifyingly

Some critics speculated that Mr. Nifong’s early missteps in handling the case were politically motivated. When the case surfaced, he was running in a fiercely

Spring 2007

contested election campaign in a city with a large black population. He denied the implication that the campaign had anything to do with his public commentaries, and in May 2006, won by a narrow margin. Previously appointed, Mr. Nifong’s election victory won him a four-year term as the District Attorney of Durham County. Seven months later, Mr. Nifong finally dropped the rape charges against the three lacrosse players, but only after the accuser told his investigator that she could not be certain that a penis had penetrated her. With so many disputed facts and contradictory allegations, the merits of the case had been called into question for several months.

Then, in January 2007, the embattled prosecutor was accused again of new and arguably more serious ethics violations.

The state bar asserted that Mr. Nifong withheld evidence from the defense and lied to the court and to bar investigators.

During the rape investigation, Mr. Nifong used a private lab for DNA testing, which had reported to him the presence of genetic material from several other men on the accuser’s underwear and body, but none from any lacrosse team player. Mr. Nifong conceded that he should have given the complete test results to the defense before the date he signed a filing affirming that “the state is not aware of any additional material or information which may be exculpatory in nature.” In fact, rule 3.8(d) of North Carolina’s code of professional conduct commands a prosecutor to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused.”3 For failing to timely release the potentially exculpatory evidence, Mr. Nifong may find himself defending a separate allegation of prosecutorial misconduct before the judge presiding over the case on the remaining charges of sexual offense and kidnapping. continued on page 24

23

Life as a First Year: Legal Ethics Forum continued from page 23

If defense lawyers pursue this allegation, the state bar’s complaint against Mr. Nifong may be used as additional evidence.

Remaining an Individual

T

Comment (1) to rule 3.8 of the North Carolina code admonishes that “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict.”4 Whatever his motivation, Mr. Nifong appears to have lost sight of the special responsibilities of a prosecutor and of his essential role as a minister of justice. For that he faces the possibility of serious sanctions, including suspension or even disbarment, to be decided by the state disciplinary board. 

As Juris was going to press, Attorney General Roy A. Cooper, North Carolina’s top prosecutor, dropped all remaining charges against the three former Duke University lacrosse players, citing “significant inconsistencies between the evidence and the various accounts given by the accusing witness,” which “led us to the conclusion that no attack occurred.” Referring to District Attorney Michael B. Nifong, Cooper further commented, “This case shows the enormous consequences of overreaching by a prosecutor.”

Nifong has since been disbarred in the state of North Carolina.

Endnotes Various news media sources provided the background research for this story.

1

The Revised Rules of Prof’l Conduct of the N.C. State Bar R. 3.8(f) (2006).

2

Id. at R. 3.8(d).

3

Id. at R. 3.8.

4

24

­­— Sarah Weissman —

This issue we are focusing on women in the law. On the one hand we look at several accomplished alumni and then we see female lawyers in Allegheny County are earning comparatively less for the same work as their male counterparts and are twice as likely to be dissatisfied with their employment situation, according to a 2005 Allegheny County Bar Association study.

There is the individual and there is the group.

We see this in school too. By the time this goes to print, third years will be preparing for the bar exam, and those female graduates going off to work in Allegheny County may be earning slightly less than male graduates for the same position. The second years are off to summer jobs that they hope will turn into permanent job offers come the fall, maybe earning money for the first time in the legal arena.

And then there is us . . . the lowly first years, the most faceless group of all. We move through the day in two groups of one-hundred (for day-time students). You know when we have a break between classes the lounge, the hallways and lockers are the noisiest and most crowded. When we have a legal research and writing assignment due the Westlaw and Lexis printers breakdown from overuse. Most of us survived the first semester exams, yet according to a certain notorious torts professor, we haven’t gotten any smarter.

Since this issue is introducing accomplished alumni, it would seem appropriate to introduce some accomplished students too. This column being the only stage for first years, it seems the place to give a face to the faceless, at least the female half. There just isn’t room to introduce each female first year, so instead I thought I would present some of the basic female first year personalities.

THE PREMIE This woman has just graduated college and come straight to law school with no real world experience in between. Many of them find the transition easier by continuing the “college experience” and living in a Duquesne dorm.

WHERE’S THE PARTY AT She is often direct from college and may have been her sorority’s social coordinator.

She takes law school seriously, but she takes Friday nights equally as seriously, and is apt to organize the pre-party on a weekly basis.

THE VETERAN This woman has had a few years in the world of work. Maybe she always knew or just discovered a passion to go to law school. While she’s a pro at the nine-tofiver it may take a bit to get used to being a student again.

THE NON-TRADITIONAL STUDENT She may be part-time or an evening student because she has a fulltime job. This woman is nontraditional in the sense that she is older than the “average” student or has decided to change careers. Her bravery should be commended because she is competing against students in a class possibly a generation removed, in some cases.

THE MOM There are not many of us. We somehow manage to fit law school and parenting into the mosaic of our first year lives—a strain shared by our families. While our counterparts will have to fit motherhood into their careers, we will have found a career that fits being a mother. We started out law school lumped in the group “mothers” and now we work to become part of a group that will also carve out a separate identity for each of us.

There’s the individual and the group. As each one of these “individual” female personalities meshes into the group, growing and becoming professionals together, lets keep watch and not get lost in the faceless mass and fall prey to being a woman who earns less for the same job or is comparatively less satisfied with the same work. As we move into our second year, let’s remember our individuality. 

Sarah Weissman is a first-year law student interested in intellectual property/trademark infringement. Comments can be sent to weissmans@duq.edu.

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Editorial From An Alum...

Immigration Reform Hits Hazleton, PA

L

Long before 9/11, illegal immigration was a controversial issue. Nearly a hundred years ago one historian stated, “we want [them] for our low-grade work, and when it is finished we want [them] to go home and stay there until we want [them] again.”1 A similar sentiment exists in the new millennium. Society’s view on the topic is not simply based on economics; however, the issue draws emotional sentiment as well. As President Bush acknowledged, “[t]heir search for a better life is one of the most basic desires of human beings.”2 Early America was a “settler society,” or, in other words, a nation of immigrants.

The founding fathers maintained that continued immigration was vital to facilitate the population of a burgeoning nation. Despite the fact that the early “colonists” were actually “immigrants,” most historians adhere to the deep-rooted invidious distinction between the two terms.3

Since 9/11, however, illegal immigration has come under intense scrutiny. On July 13, 2006, the small city of Hazleton, Pennsylvania,4 passed one of the strictest laws in U.S. history with regards to illegal immigration. The ordinance establishes English as its official language and, most pertinently, prohibits businesses from hiring illegal aliens or landlords from renting to illegal aliens.5 After Hazleton passed this ordinance, a number of other communities in Pennsylvania and around the country followed suit by passing their own ordinances.6 However, the legality of such legislation is questionable because federal law pre-empts municipal law.

Prior to the attacks, and against the advice of the (former) Immigration Naturalization Service (“INS”), Congress created a successful experimental “Visa Waiver” pilot program that allowed certain tourists and other non-immigrant aliens easier access without applying for a non-immigrant visa.7 Responding to 9/11, however, President Bush proposed a comprehensive plan for immigration reform. The President’s plan included five elements that must be addressed together: (1) border security, (2) the creation of a temporary worker

Spring 2007

­­— Virginia A. Berlando, Esquire — program, (3) a simplified system allowing employers to verify aliens’ eligibility while holding them accountable for the legal status of their workers, (4) addressing the issue of millions of illegal immigrants already present in the U.S., and (5) honoring the great American tradition of the melting pot.8 In conclusion, it appears that the debate over illegal immigration will not be resolved in the near future. Without immigration reform, illegal immigrants will continue to risk their lives, arrest and deportation to live in the United States. Further, adequate safeguards are needed to avoid the risk of having terrorists or criminals enter into the country. Immigration reform could produce a temporary worker program which would match alien workers with employers that cannot find willing laborers in the United States.9 Reform is necessary, however, to deal with burgeoning issues such as offering illegal aliens credit cards,10 mortgages,11 and in-state college tuition.12 Expediency is key to dealing with this already contentious topic.  Virginia A. Berlando, Esquire, is a 2004 graduate of Duquesne University Law School.

She is a former resident of Hazleton, PA, and a first-generation American on her mother’s side of the family. Ms. Berlando is currently writing a law review article regarding the Hazleton ordinance.

Steve Mocarsky, Latinos Organizing vs. Barletta: A Task Force Meets to Plan Fight Against Proposed Hazleton Ordinance, The Times Leader, Jul. 3, 2006, at 1A.

5

Trial for the Hazleton ordinance is scheduled for March 12, 2007, in the United States District Court for the Middle District of PA, Docket No. 3:06cv1586, with the Honorable Judge James M. Munley presiding. For a list of other communities that either have passed, rejected, or are considering similar ordinances, see generally The Puerto Rican Legal Defense and Education Fund (last visited Feb. 25, 2007), available at http://www.prldef. org/Civil/Latino%20Justice%20Campai gn.htm.

6

Comprehensive Immigration Reform (Jan. 23, 2007 ), available at http://www. whitehouse.gov/infocus/immigration/ index.html.

7

Daniels, supra, note 1, at 227.

8

Fact Sheet: Basic Pilot: A Clear and Reliable Way to Verify Employment Eligibility (Jul. 5, 2006), available at http://www.whitehouse.gov/news/releas es/2006/07/20060705-6.html.

9

10

Endnotes Roger Daniels, Guarding the Golden Door: American Immigration Policy and Immigrants Since 1882, 179, Hill and Wang (2004).

1

President Bush Proposes New Temporary Worker Program (Jan. 7, 2004), available at http://www.whitehouse.gov/news/ releases/2004/01/20040107-3.html.

2

Daniels, supra, note 1, at 6.

3

“Hazleton” is the correct spelling with the “le” transposed. See The Greater Hazleton Historical Society (last visited Aug. 23, 2006), available at http://www. hazletonhistory.8m.com/history_origins.htm.

4

See generally Wells Fargo to Accept Matricula Consular Card as Identification for New Account Openings (Nov. 9, 2001), available at https://www.wellsfargo.com/press/ matricula20011109b. See also Scott Horsley, Bank Defends Credit Cards for Illegal Immigrants (Feb. 18, 2007), available at http://www.npr.org/ templates/story/story.php?storyId=73887 09&ft=1&f=1001.

See generally Carolyn Said, Selling Illegal Immigrants the American Dream, The San Francisco Chronicle (Jun. 15, 2006), available at http://www.sfgate.com.

11

See generally Liza Porteus, States Grapple with In-State Tuition for Illegal Immigrants (Mar. 6, 2006), available at http://www.foxnews.com/ story/0,2933,186876,00.html.

12

25

Sanitizing Your Online Image

F

Facebook.com (“Facebook”) has been an online stomping ground for college students during the past three years.

The social networking site provides users with an easy, fun way to keep tabs on faraway friends and to connect with new ones. Until September 2006, Facebook distinguished itself from other social networking sites like MySpace. com (“MySpace”) and Friendster.com (“Friendster”) by limiting membership to those with .edu email accounts, such as university students, alumni, and staff.

Facebook enhanced its character of exclusivity by offering privacy features unavailable on Friendster and MySpace. All three sites require user membership (which includes a password) to create profiles.

Viewing profiles, however, is a different story.1 Only Facebook requires membership to view user profiles, an access control that cannot be altered by individual users.

Restricting member access to only those in the academic environment, however, did not give members a reasonable expectation of privacy in the information they posted on their Facebook profiles. On Facebook, students have always shared company with school officials, including security officers, who use the site as a law enforcement tool.

Security officers can search Facebook, find students who attend the school at which the officers work, and identify students who violate the law and university policies.

As a result, students at colleges around the country have faced school sanctions such as probation, suspension, and even expulsion due to the content they chose to post in their profiles.

Disciplinary consequences usually stemmed from profiles featuring students engaged in criminal activities, such as pictures of drug use and underage drinking. But not all sanctions are based on obvious displays of prohibited conduct. At Penn State, for example, hundreds of football fans rushed the field after their team’s victory over Ohio State. The police only arrested two students on game day, yet dozens more faced academic sanctions based on their affiliation with the Facebook group, “I Rushed the Field after the OSU Game (And Lived!).”

26

­— Andrea Goldman — But campus security officials weren’t the only ones policing Facebook. In 2005, students turned on one of their own at Duquesne University. That fall, sophomore Ryan Miner created a Facebook group opposing the school’s proposed Gay-Straight Alliance. In one post, Miner appeared to call homosexuals “subhuman,” prompting students to turn over Miner’s posts to school authorities. Miner told the university newspaper, the Duquesne Duke, that his comments were taken out of context, alluding to Facebook’s undeserved reputation among adults for its accurate depiction of its members. Nevertheless, Miner faced expulsion when the judicial board found him guilty of violating the student code of conduct which prohibits discrimination based on “sexual orientation.”

“

Why give employers the opportunity to deny you a position.

EMPLOYERS ENTER THE FACEBOOK FRAY

”

Employers joined school security officers as the latest group to monitor what certain students post on their sites when Facebook relaxed its membership standards last September. Facebook profiles, which are usually viewed as jokes by students, are investigatory aids to the police, and are now viewed as an extension of a job applicant’s resume.

In a 2005 survey, recruitment firm ExecuNet found that 78 percent of executive recruiters regularly search the Internet for background information about job candidates. Even students who are of legal drinking age, therefore, should worry about posting any incriminating or obnoxious photos on their sites because employers use the websites to glean extra information about job candidates.

The treasure trove of personal information revealed by Internet searches supplies employers with “real insight into [a person’s] thoughts over a period of time,” compared to the limited offering in a time-constrained interview, said Tod Hilton, a Microsoft software developer who also participates in the company’s hiring process. When a candidates’ writings appear insulting or argumentative, Hilton revealed that employers might wonder whether the candidates’ online persona matches their real-life personalities.

Employers are looking for people who can cooperate with others, he said.

Heather Momose, a fourth-year evening law student at Duquesne, agrees.

“Employers want to see what [applicants] could be like in the future,” she said.

According to Hilton, an abrasive online personality indicates that the candidate might approach work conflicts in a similar manner and be unable to “resolve conflicts through compromises,” a hiring risk that employers are unwilling to take, he said.

WITHHOLDING INTERVIEWS AND OFFERS Hilton’s perspective is hardly unique.

ExecuNet found that 35 percent of recruiters have denied candidates interviews and job offers based on information they found on the Internet.

Employers also worry that a person who posts objectionable content will compromise the company’s reputation.

Because public perception is so important, recruiters will not hesitate to disregard the résumé of someone whose harsh online persona can easily be discovered by existing and potential clients. Moreover, online rants regarding bosses, co-workers, and clients put companies at risk for libel charges. According to the Electronic Frontier Foundation, the First Amendment protects the right to free speech, but not the consequences that flow from such expression.

Of course, employers risk losing good employees by disregarding candidates without offering them an opportunity to explain questionable online activity.

JURIS

Brian Teller, a first year law student at Georgetown University Law Center, is confident that legal employers will give applicants the benefit of the doubt.

“Lawyers, of all people, know not to jump to conclusions,” he said. Lawyers are trained to get the facts, he explained, “and an interview is the best place to find them.”

A PROFESSIONAL PROFESSION While Brian may have a more progressive view of job seekers’ Internet posts, Ella Kwisnek, Dean of Students and Director of Career Services at Duquesne University Law School, said that the legal profession “is conservative, in a way” so law students “must conduct themselves appropriately and project a certain image.” Professionals are paid so well because their jobs require a “high degree of responsibility,” she said, and people expect them to look and act responsible regardless of the situation.

Each fall, Kwisnek reminds incoming law students that since they chose to enter the legal field, they must now accept the responsibilities that come with the profession, including acting professionally in private lives. In fact, once you become an attorney, professional and private lives tend to meld together. “Don’t wear sweats: even to the grocery store,” Kwisnek jokes.

Although employers take Facebook very seriously, students know that exaggerated and even false profile content is posted for amusement. Indeed, most of the available information “is not relevant to the job,” said Lance Choy, Director of the Career Development Center at Stanford University. Employer conduct raises ethical issues when a candidate’s personal information is used to “inappropriately . . . assess a candidate,” Choy said. Brian wonders if employers will search other sites that, like Facebook, are not intended for work-related use. “I hope [employers] haven’t seen my Fantasy Football roster. Or my personal ads. Yikes,” he quipped.

EAVESDROPPING OR GOOD BUSINESS Students may not like that employers are eavesdropping on their affairs, but according to employment attorney George

Spring 2007

Lenard, it is most likely legal. “Employers are free to make unfair, stupid, arbitrary, and wrongheaded hiring and termination decisions, even based on false information,” he said, as long as those decisions are within the boundaries of federal and state laws. Although discrimination statutes prohibit adverse hiring practices based on a candidate’s gender, religion, race, or national origin, the law does not require employers to disclose their motivations behind the hiring process. The Fair Credit Reporting Act may require employers to disclose the grounds for hiring decisions, but this law is only triggered when background checks are conducted by third parties, and most employers simply do the search themselves.

For this reason, Lenard advises candidates to use caution. “Sorry to say, but you may not even want to admit homosexuality or extreme political or religious views,” he said. In essence, applicants will never know if they were denied job offers because employers were unimpressed by their class rank or because employers discriminate against people who follow a particular religion, which they discovered on Facebook profiles.

Recruiters, on the other hand, should “cut applicants and employees some slack” and question whether “the information creating the negative impression is [relevant] to job performance,” said Lenard. Because personal information is often misconstrued when taken out of context, he reminds recruiters to “[c]onsider the whole person, of whom the Internet persona is not always a fully accurate reflection.” Clearly Facebook was not designed to connect its members with recruiters; profiles leave little room for employment information and the site does not offer any way for members to upload resumes. Thus context is especially

important for sites like Facebook, a selfdescribed “social utility.”

Heather, who accepted a job offer with the Army JAG corps, never joined Facebook.

“As someone going into the military, I can’t do anything that would compromise the integrity of the position,” she said. Indeed, Kwisnek said the safest route is to avoid social networking sites all together. At the very least, students should set Facebook’s privacy controls to restrict access.

“Why give employers the opportunity to deny you a position?,” asked Kwisnek. She tells the incoming students to avoid “adding something negative” to their image because “little things set [applicants] apart.” Regardless of whether students like the idea of sanitizing their Facebook profiles, their professional futures may depend on it. 

Endnotes The default privacy settings on both Friendster and MySpace provide even non-members with easy access to member profiles. Anyone can view a Friendster profile simply by searching the Friendster homepage for a particular user. MySpace profiles, the most accessible of the three, are even viewed by people who did not intend to see the profiles; internet search engines such as Google and Yahoo! actually include MySpace profiles as search results.

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M

Is Online Poker Legal?

Mike (fictitious name) is a typical thirdyear law student. He goes to class four days a week, maintains a part-time job at a downtown law firm and plans on taking the bar exam this July. He swears he has never broken any laws and even pays for the songs he downloads off of the internet. Mike, however, is addicted to online gambling.

Though he has never been to Las Vegas or Atlantic City, he bets on sports—football, basketball and hockey, plays typical casino games such as blackjack and roulette and even squares off against other players in poker tournaments, on a daily basis. Mike is addicted to online gambling, and while the general consensus is that gambling is illegal in Pennsylvania, Mike believes his actions are consistent with the law.

He’s not alone. In 2005, 1.8 million players a day wagered approximately $60 billion online. The online gambling industry grossed $2.4 billion in revenues, a dramatic increase from $82.7 million in 2001. By 2010, experts predict that online gambling will rake in over $24 billion in profit.1 This increase is due in large part to the explosion in popularity of poker game, Texas Hold ‘Em. In 1998, Rounders was released, depicting the underground world of high-stakes poker and introducing many movie goers to Texas Hold ‘Em for the first time. Fans fell in love with the fact that the average Joe could sit down with professional card players and compete for million dollar prizes. This theory was solidified when amateur online poker player, Chris Moneymaker, won the 2003 World Series of Poker, the poker world’s biggest event.

Almost overnight, poker became the thirdmost watched sport in the U.S. behind football and car racing.2 As Texas Hold ‘Em increased in popularity, companies took advantage, creating internet domains that facilitated online poker. Players from all over the world were able to compete against each other over the internet without leaving home. Las Vegas and Atlantic City were no longer the exclusive destinations for gambling; players could now place wagers from anywhere in the world, as long as they had an internet connection.

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­— Salvatore Bauccio —

But wait . . . are not Las Vegas and Atlantic City the only two cities in the country where gambling is legal?

The answer is yes and no. While unregulated gambling is illegal in all 50 states, the major online poker domains are located in the Caribbean Islands, where gambling is plenty legal. Because placing a bet in the Caribbean Islands from a location in the States is considered “foreign commerce,” the wagering itself is governed by the World Trade Organization, and may not be regulated by the United States legislature.3 This does not mean that Congress has not tried.

In 1961, Congress passed the Wire Act, with the purported intention of ending the placement of wagers across state lines.4 The antiquated Wire Act, however, has been interpreted as being inapplicable to internet gambling. Courts have questioned both whether the Act applies to the game of poker itself (as opposed to sports betting) and whether it applies to bets placed over the internet (as opposed to over the phone).5 Congress’ most recent attempt to thwart online gambling has been more successful.

In September 2006, Congress passed legislation that makes it a crime for a bank or financial institution located in the United States to transfer money to or from an online gambling site.6 Though the Act does not make online gambling illegal per se, it does make it illegal for a bank located in the States to aid in the transfer of funds to or from an offshore gambling outfit.

Though it is still early, the Act has had a significant effect on online gambling.

While Congress does not have the power to stop players from placing bets with international outfits, under Title 31 of the United States Code, Congress does have the power to regulate financial institutions located within the States.

The Act has therefore caused a number of U.S. banks to stop operating as an intermediary between the players and the internet gambling agencies. Banks are a necessary ingredient to the online gambling recipe, as players cannot post cash on the internet domains without them.

In conclusion . . . is gambling legal? Yes and no. Undoubtedly, gamblers may not place bets or wagers within the U.S., unless the bet is regulated by the states themselves.

However, it is lawful to place a bet or wager in a country where gambling has been legalized over the internet. Online gambling can best be described, therefore, as “quasi-legal.” While Congress does not have the power to stop it, they are certainly doing their best job to control it.  Salvatore Bauccio recently graduated from Duquesne Law School with Honors. He is an associate editor and contributor to the Duquesne Law Review. He is also a member of the Tax Moot Court team and recipient of the Pittsburgh Tax Club Memorial Award.

Salvatore will be obtaining his LL.M. in Taxation this upcoming year.

ENDNOTES David Silverberg, Online Poker: Going All-in to Expose the Internet’s BillionDollar Bet, Sep. 22, 2006, http://www. digitaljournal.com/article/35746.

1

Silverberg, supra Note 1, at 1.

2

United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, 2005 WL 808271 (W.T.O. 2005).

3

See Wire Act, 18 U.S.C. § 1084 (1961).

4

See In re Mastercard International, Inc., 313 F.3d 257 (5th Cir. 2002).

5

See Unlawful Internet Gambling Enforcement Act, 31 U.S.C. §§ 5361-67 (2006).

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JURIS

Duquesne University • School of Law 2007 Graduates Day Division

Evening Division

Photographs by Chuck Orton Photography, 724-356-4470

juris Duquesne University School of Law 600 Forbes Avenue Pittsburgh, PA 15282