Juris Magazine- April, 1974

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uris April. 1974

In This Issue Air Pollution Control

by Anthony P. Picadio .......... 3 Watergate And The Legal Profession

by Thomas P. Ruane . . .......... 8

FROM THE ED OR'S

CHA R: Spring Training: A Quiz Instead of serious op ini on, the editor off ers a quiz. According to Du q ue sne's Professor Pe laez, the dis ting uished advocate Telford Taylor thought that the art of advocacy did not si mp ly consist of a knowle d ge of the law, but also consisted of the kn o wl edge of the judges before whom the la w yer mu st argue cre ativ ely w it h th e law. Stude n t s of th e Pe n n sylvania S u preme Court should test the ir k now ledge with our m at ching quiz . The num b ered comm e nt s provide an ins ig ht int o th e character of Ju s ti c es curren t ly on th e be nc h or from the rece n t past.

Match the numbered comments with th e letter of the appropriate name.

1. This Justice was called to s ub s titu te for a dignitary w h o w as unabl e to speak at a cele bration at Ge tty s burg . O n a m oment's notice h e delivered Abr a h am Li n coln's Ge tt ys bu rg Address so eloq ue n tly th a t h e stole t h e s h o w from a for me r Pre sident of th e U nit ed S t ates who was th e guest of ho n or. (433 Pa. xxx viii) 2. H e decided at age ten to' go to H arvard Law School a n d we n t th rou gh thre e years of classes there w it ho ut ever taking a s ingle note. (447 Pa.lxiv) 3. On a Friday aft e rnoon, four days before his elevation to the high office of P enns y lva ni a Ju stice, he helped a fell ow C omm on P le as Court Judge in Erie Co unty clear t h e d oc ket of lowly nonsupport cases by se r ving as nisi pri us judge.

(409 P a . x li) 4. "As American as P lymouth Rock an d ou tdoor sports," he served as captai n of six school and college athle t ic teams. In 1914 he was selected to be an All-American soccer pla yer. In 19 20 he ranked among t h e first ten in lawn tennis in the United States. F or five years, he was second in court tennis in the coun try . (405 Pa. xxxiii) 5. This ge n tl eman of th e Supreme Court was a Professor at D uq uesne Law Schoo!. A y oung lawyer remarked about him that w h ile this Justice was a trial judge in the All egheny County Court of Common Pleas, "he was so kind and courteous in court that I would rather lose in his court than win in others." (406 P a. xxix) 6. Not only did his father influence him to follow the same profession, but his father also convinced another young man who later became a

New Jersey Judge to forego plans to enter divinity school and to enter the legal profession instead. [44 7 Pa. lvi) 7. The H onorable H enry J. Friendly of the U n ited States Court of Ap p eals for the 2nd Circuit in his eulogy for thi s disti ng u ished Justice said: "I reme m ber th e w elcome he extended to me despite his obvious regret at having his beloved daughter leave P h il ad elp h ia for that wicked pl a ce n in e ty m iles to the north. Our children loved him as g r andfather, as th ey sensed his lov e for th em. H e d e lighted in play ing games wit h the m on th e ir level ... a lLh ough he always playe d to w in." (434 Pa. cii) 8. In 193 9 he was ap po int ed b y Pre side n t R oosevelt a Jud ge of the Unit ed States Circ ui t Court of A p peals for the Th ird Circ u it. A position he resig ned to s eek electio n as P ennsylvania Su p re me Court Ju stice. (423 P a . xxxvi) 9. H e serve d the Co m mo nwe a lt h in many varied ca p a cities a n d w ith di s t in c ti on ... as leader of h is pa r ty i n the H ouse of R ep re s e nt atives, Director of th e Legi s la tive Refere n ce Bu r eau, A t torney Gene ra\, an d Ju s ti ce on the S u pr eme Court. (443 Pa. cxi) A. H O RA CE S T E RN B. HENRY X . O 'BRI EN C. M ICH A EL M USMANN O D . HERBERT B. C O HEN E. CH ARLE S ALVIN JONE S F . ROBERT N . C. N IX G. JOHN C. BELL , fR. H. LOUIS L. MANDERIN O I. S AMUEL J. ROBERTS (H .C.)

Th e co rrect an swers are: l-C, 2- H , 3-1, 4-G, 5-B, 6-F, 7-A, 8-E, 9-D.

Vol. VII No. 3 - April, 1974

Juris Features Louise Porac

Editor Harry C ancelmi Associate Editor Vincent J .Roskovensky

News J ay S ch iegg

Graphic A rts M. Rich ard Mellon

Layout Tim O ' Brien Alumni Ernest Orsatti

Assistant Editors C r aig Ma yer Ma ureen Lall y

S ta ff Members : John C. Bates. Nelson P. Cohen, Charlene R. Ehrenwerth, John Foster, Charles Goldblum, Lee Goldstein, Joseph Gula, Patsy Iezzi, Christopher Lepore, Steve Levin, Jerry Marks. ThomaS Meredith, Michael Murphy, RODert 'Nowalis, David S. Pollock, Nick Radoycis, Robert Williams, and Howard Zavodnick.

Facul t y Ad v isors: Nicholas J. Demas and John J. Sciullo.

JU RIS is a publication of the Duq ue sne University Sc h ool of Law . Con t r ibutions and comme nts may be addr essed to J U R IS, Duquesne Univers ity School of L aw, 600 Forbes Avenue, Pittsburgh, Pennsylvania 15219. Telephone (412) 434-6305.

Copyright

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Duquesne University, 1974

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Air Pollution Control: The Allegheny County Experience

by An thony P. Picadio eTocqueville's observntion, that in AmeriCa every political question ul t imately becomes a legal on e, has been ba dl y in need of revision for years. Our history h as proved t h at the completeness and, t h erefore, the truth of hi s observ cltion could be substanti a ll y e n ha nced by ridding: "and t he n po lit ical, amJ t h e n legal, e tc ... " The political and subsequent leg al re s olu ti on of the Creelt Social Qups ti ons in Am erica tend to b e IllOI'f~ ephemeral than lasting . P e rsistence ra th e r than grHc e has em e rged as t he Creal American Attribute. Battles lost in the political arena are wag e d agelin in the courts, and again in the legislaturps, and Hgnin in the courts ad nausem.

Abortion, criminal justice, women 's rights, aid to parochi;i1 education, obscenity and c apit al p un ishnwnt are just a few of the su bj ects of what seems to be inter minable con fl ict. Environment a l protection is th e most re c en t.

Environmentalists are only now beg inn ing to recognize that t he m a n y bitter ba tt le s w h ich they considered won as rec e n tly as a year ago, were re a lly o n ly a !'p w volleys in w ha t has emerged a s an extended conte s t.

By t he beg in n ing o f 1973 it app e are d that most, if not a ll , of the im p ortant e nvironm e nt al prot(~ction q u es t io n s had been deCisively a n d finally r eso lve d in the po lit ic al ar e na . IL o n ly remain ed for the courts to a d d their gloss to th e new leg isla ti o n. In th e area of A ir P oll u ti o n Co n trol, th e Air Qua l it y A ct of 1 9 6 7, follo we d b y t he Clean Air Act A me n dme n t s of 1970 es t a b l ished for the first time a co m prehe nsive natio nal reguIntory scheme d e sig n ed to p r o tect a mJ e nh a nce the quality of the n a tio n's a ir resources. The Federal W a te r Q ual ity Act of 196 7 fo llo we d by the F(~ der al W nte r Q u al it y A c t am en dments of 1972 est ab li s h ed a s im ila r regu lat ory sche m e desi g ned to r est o r e t he n a t ion 's r iv e r s and streams to a v irtu al ly p r ist in e state. T he National E nvi ronment a l P ol ic y A c t of 1969 m a d e enviro nm e n t al impA c t an d pro te c ti on a ma jor compo nent in the gove rn m ental decis ion m ak ing process.

In Pennsylv a n ia, t he e xperie n ce wa s s im ilar .

The Stat e Ai r P oll utio n C ontro l Act w a s a m e n d ed and stren gth ene d in 19 68 a n d a gfl in in 19 72.

The Clean St rea m s law WaS toughe n ed in 1965

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EDITOR'S NOTE: The (Jut/lOr is a partner in the fi r m o f Rad ing , Blac k stone, Rea ond Sell and is Chai rman of th e Alleg hen y County Air P o llut io n V(Jrionr.e Board.

and again in 1970 . The Department of EnvironmentflJ Resources was created in 1970 and -sranted broad regulat o ry powers. In Ma y of 1971 , the Pe n n s ylvania electorate overwhelmingly ado p te d the Natural Resources A mendment to th e Pennsylvania Constitution., the first se nt ence of which prov id e d: Th e P eople have a rig h t to clean air, pure water, and to the preservatio n o f the natural. scenic, historic and esthetic values of the environment.

The right to a s a lubrious environment was thus elevated to a matt e r of constitutional principle.

In a few short years, less than ten, the polit 1ical ins tit u ti on s of the Nation, demonstrnting what appeared to be an ama z ing vitality, resolv e d a wide array of extre m ely comp licated and controver sial tec hn ical , s c ie nti fic , a nd economic issues in fa v o r of ma x im um p r o tection of our natur a l enviro nm e n t - or so it s eemed a year a g o. Today it seems that a ll participants have been ordered back to Co. Bills h ave alread y been intro du ced in th e Pe nn s ylv a n ia Ho u se which, if enacte d , w ill effec t iv el y rep eal e x is ting air and w at e r pollu ti on co nt rol law s. C ong re ss has a lr (~ ad y p a ss ed en e rg y emerg e nc y legislation w h ich substa n t ially re lax es t he tougher provisions of t he C le an A ir Act. W hil e P resident N ix on v et oed t h is leg isl a t ion, h e ma d e it cle a r that he wi ll s oon p ro pose legisl a tion w h ic h will not onl y w eaken the C le il n A ir Act, b u t which also w il l repeal th e Nat ion al Environmental P o lic y A c t. R us sell Tr ai n , t h e resp ec te d Administrill or of the U. S. Envir on m e nt al Protection A gency, is w id e ly expe cted to b e forced from office in t h e ne a r fu tu r e as a result of his opposit ion to the A d mi nistration's plan s to relax enviro n me ntal p rotection sta n dards, to substantially reduce EPA 's bud get, and to wi t h draw federal fun ding of state an d local environm e ntal protection pr og ra ms.

T he basic que stions w h ic h u n de rlay the e viron m enl al pro te ctio n issue ar e on ce again open - it's cl e ar n o w th a t t h ey w e re re ally never se ttl ed - a n d u e once ag a i n bei n g h o tly deb at e d in legisl ativ e hearings. Doe s P ollut ion C o n t r o l mean loss o f jobs? Is air pollution really u n he a lth y? D oes te c hn o logy e x ist to p er m it indus try to att a in the po llut io n con t rol s ta n dards n ow in ef fe c t ? C a n and shoul d cost- b enefit an a lysis b e a p p l ied t o poll uti o n control '? Th ese basic q u e s ti o n s and many mor e a r e on c e ag ain o n the front bmn f: r. C y nics wi ll say . w ith some

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justification, that the an ; wers to these questions will depend this time morf~ on the relative political strength of those groups on either side of th e debate, than on absolute truth. But truth will have an effer.t. to the extent that it can be ascertained. And , perhaps, the most valuable undertRking in this regard is to examine our experienr.e with pollution control regulation. The following discussion of Allegheny County's experience with air pollution control regulation is offered as a small start.

HISTORY OF AIR POLLUTION CONTROL IN ALLEG H E NY COUNTY erious Air Pollution Control in A ll egheny County has only a four year history . The first comprehensive set of Air Pollution Control Regulations in this County became effective Ja nuary 1, 1970. Prior to that a very weak smoke control regulation had been in e ffect since 1960.

The 1970 regulations con sisted of fairly tough emission standards for s u lfu r oxides and particuIl ate matter , the two most common dangerous air contaminants . The Allegheny County Air Pollution Variance Board was created by th e 1970 regulations and granted t h e power to grant temporary variances to companies on a case-bycase basis to permit them a reasonable time to comply with the new emission standards. In June of 1972, a new and tougher set of emission regulations was enacted. T h ese n e w regu l a t io n s were necessary to meet the Air Quality Standards established by the federal gove rnme nt pursuant to the Clean A ir Act of 1970. The new regulations are a mong th e toughest air poll u t ion control regulations in t h e country .

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EFFECT ON PUBLIC H EALTH nfortunately, the local public heal th authorities and medical profession have not not attempted to mo ni t or th e p u bli c he a lth effects of air po ll uti on in th e co unt y over the past four years. T h e County Board of H ea l th appointed a Committee in 1 9 7 1 to stu d y h e a lth effects, bu t the Committee has re ma ined dormant. However, the ove rwhe lmi ng w eig ht of existing evidence in d icates that air p ollu t ion is a serious publi c he a lt h h a zard.

In 1967 the U .S. D ep art m e n t of Health, Education, a n d W elfa re publi s h ed a series of "A ir Quality Criteria Documents" which in cluded a review of the best me d ical and sc ie n tifi c evidence then avai la ble of t h e rel atio ns hip be t w een air pollution and public hea lth . These s tud ies identified levels of air contamination above which adverse public health effects, including

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"The People have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and estheti c values of th e envi ro nment ... " inr.reased mortality rates, had been observed and could be expected. For e xample, the do c ument dealing with particul a te matter concluded that increases in mor ta lity could be expe c ted if suspended particulate conc e ntrations exceeded, as an annual avera g e, 80 micrograms per r.ubir. meter of air. To put this number in perspective, average concentrations in ma ny areas of the County exceeded 160 micrograms per cubic meter of air in 1967.

The County's Air Pollution Control Regul a tions are designed to reduce concentrations of S0 2 and particulate matter in the air to the levels ident ifi ed in the H EW Criteria Documents as bein g safe. Therefore, if the conclusions reached by those documents with respect to safe con r. entrations of air contaminants are wron g , and higher levels are safe, then the County's regulations would arguably be unnecessarily tough. However, what little evidence exists inclicates that air pollution is certainly as harmful to public health as the H EW Criteria Documents indicate.

It was recently reported that Roy Ash , Director of the Fed e ral Bureau of Management and Budget, had directed his sta ff to re-evaluate the available evidence on h ea l th effects t o determine if existing air pollution control regulations were not unnecessarily restrictive. T hi s study reportedly concluded that. if any thin g, existing regulations were n ot stringent enough to protect the public's he alt h adequa tely . The report was never made public.

In March of 1973, the University of Illinois School of Medicine com pleted a n d released a two-year study of the h ealth effects of high levels of air pollution. T h e study concluded that in C h icago twice as many people t h an normal die from heart and pu lm onary diseases during periods of high a ir pollution levels. This study also pointed out that the sick, poor and the el d e rl y were affected most by high levels of air p o llu tion.

In January of 1974, t he American Public H ea lt h A ssoc iation criticized the Emergency E n ergy Legislati on then p ending in Congress on the grounds that its re laxation of air p oll ution control stan d ards wo ul d adversely affect public he a lth . The A ssocia ti on esti mate d that if the legis la ti on was e n acted int o la w " 9 1 ,000 additio nal attar.ks of ch r o nic respir a t ory disease and approximate ly 3,800 excess deaths" could be expected AnnUAlly . Th e Association pointed out

result of pollution r.ontrol lavvs . More people are now employ ed in the steel industry than have been in the past fpw years. ev en though local steel c omp a nil~s havf! spent millions for ail' pollution r.ontrol Rinn e ov er the past three years.

This is not to say that no local company found compliance with pollution control laws to be a serious financial strain. However, the Variance Pror.ess has provided the necessary flexibility to prevent financial disasters. This process has proved to be an ideal way to deal with the hardship cases, so to speak, on a case-by-case basis, granting variances w h ere necessary, yet req uiring strict comp li ance w ith the regula tio ns in all other cases . This process has pe rmitted th e County to mitigate economic hardships. avoid dislocations in the local economy, and at the same time significantly improve ai r quality .

Allegheny County, the most ind us triali zed county in the state, has proved that it is possible to have tough air pollution co n t rol laws, th e toughest in th e state, and at th e sa me time a healthy in d ustrialized economy . T he experien ce of Alleghe ny County over t he past fo ur years should pro vid e solid evidence that th e arguments of indu s try to the effect th at m ore pollution con trol means less job s, is no thing but emotional cl aptrap.

A I R POLLUTIO N CO N TROL A ND THE ENERGY CRI SIS IN A LLEG HE N Y COU N TY

he en ergy crisis ha s becom e th e Great Americ an Exc u se. Every t h ing u np le as an t from visiti ng moth ers-in-la w to co m p ly ing with coal mine safet y regulati ons is being avo ide d in the name of the Energ y C risis . H ow ev er, it h as had surprisingly li t tle effect on air p oll u ti on control in A lleghe ny Co unty , which is fa irly s tro ng evidence that air p ollut ion control in th e co un ty did not have an adv erse effect on energy supplies.

One of the reasons is that r elati vely littl e fu el switc hi ng has oc curred am ong th e coun t y's major fuel u sers. Of t he four power s tation s in the cou nt y, th e three la rges t are s till burning coal. alth oug h of a lo wer s ulfur co ntent tha n previously . Th e county has encourage d large firms to solve the air p ollution p roblems ass ociated with co al burning , rath er th an s w itchin g from coa l to oil. A nd the Vari a n ce Board h as granted ex tende d varian ces to pe rmi t companies to do this, even though they could compl y with emission st a ndard s much soon er by s witching fuels .

Another reason w hy the ene rgy crisis ha s not seriously affec ted air po lluti on co ntrol enforcement in the county is the fact that U nite d States

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Steel produ ces a s a by-product of coke and iron production , about 70% of the fuel it r.onsumes.

Onl y 23% of its fuel demand is made up of natura l gas and oil. The remaind er, 7%, is m a de up hy purchas ,ing coal from outside suppli ers.

To date , only five companies have sought variances because of the unavailability of low sulfur fuels; and in only one case, could the effect on air quality be characterized as detectible .

A VAILABILITY OF TECHNOLOGY

he most serious criticism of air pollution control regulations has centered around the qu es tio n of av a ila bility of tec hn ology. Regulatory agencies have been accused - with jus tif icatio n in some cases - of legislating beyond the state of t he art. It is in this a rea where the All egheny County experience is most valuable.

Bu t first it is impor ta nt to un derst an d the theoretical basis of modern air pollution coritrol reg ul ation .

T he exis ti ng structure of air po llu tion control reg ulation is based on a scientific concept k nown as Ai r Resource M anagem ent. In grossly sim plified fo rm th is conc ept w orks as fo ll ows: First, an air qu alit y objective is es tab lis hed. This was don e un der the Clean Air Act of 1970 when the U.S . Environm ent al Protec tio n Ag en cy promu lgated am bi ent air qua lity st a nd ards for a numb er of air co nt a mina nt s. These air quality s tanda rds w ere esse nt ia ll y iden ti cal to the levels of air cont a mi natio n spec ifi ed in th e 1967 H EW Ai r Qu a lity Criteria Docu ments as being safe.

U nde r the Clean Air Act, states a nd local go vernme n ts w ere requ ire d to enact laws and reg ula ti ons des ign ed to a tta in th e federally p rom ulgated a mbi en t air qu ality s tan d ards .

Aft er the federal standards w ere established it was firs t ne cessary fo r Alle gheny County , and oth er lo cal and state ag encies, to de ter m ine ex is tin g air qu a lity. Th is informati on was ga thered throug h the count y 's air monito ring syste m. Onc e existing a ir qu a li ty was de termine d, it w as t hen poss ible to deter mi ne th e red uction in emi s sions ne cessar y to attain the re levant a mbient air quality standard. For exa mple , if th e rele va nt ai r q uali ty s ta nd a rd w re 75 mi crograms pe r cu bic met er and actu a l con centrations of the rel eva nt air co n ta mi n ant wa s 150 micr ogr a ms p er cub ic met er, th en a 50% red uction in emission s w a s requ ired to attain the fe deral stan d ar d.

The next s tep was to d etermine exis ting levels of emis sions for each m ajor st a ti onary source of air po lluti on in the county. Beca use before <'In

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allowable emission ra te 50% below existing emissions for each source could be established, it was necessary to det ermine the starting point.

This wa s do ne by com p ili ng a n Emissions' In ventory for the entire co unt y based on inform ation provided on fo r ms s ubmitte d by th e op erators of eac h m ajor source of air pollution.

Th e nex t step was to promulgat e th e regula- ' ti ons whi ch would a chieve an ov erall 50% re duc tion in emis s ions. Enforce ment of th ese regulati on s then w ould theoretically re s ult in the necessary 50% redu cti on in concentra t ions of the relev ant air contaminant.

O ne ca n see from this over simplified h ypothe ti cal case that the existing state of control technolog y is not a major consider ation in de signin g a ir pollutio n control regulations . How tough th e regulations w ill be de pen ds almost entirely on the reduction necessary to a tt a in the federal standards, Put another way , existing air qu al ity pretty mu ch ,determin es how tough the emi ss io n regula ti ons will be , bec ause the federal s tandard is given , The emission regulations will , the refore, be to ughest in a re a s of high air pollution, b ecause in these areas the nec ess ary re du ctio n will be the greatest.

Ex is tin g te chnology does play a role in all this , b ut it is a minor one . Once the neces sary overall reduction is determined , the agen cy has s ome fle xibility in apportioning the redu ction am ong va rio us classes of sources . For example, industrial boile rs mi ght be re quired to achieve a re duction g rea ter than 50% and a nothe r category of sources might only be req uire d to achieve a 40% re du cti on in existing emis s ion s to achi eve an overall reduction of 50%. The state of existing cont rol te chnol ogy 1S the most important co ns idera ti on in making th e apportionment among so u ~ es.

11 is not s urprising, therefore, that in AIl eghEmy Co unty several catagories of air pollution s ources were required to re duce emi ssion rates to lev els never before att a ined on similar sources. In order to comply with the county's regulations , th erefore, many companie s were re quired to d ev elop new and better air pollution con trol methods and to develop new appli cation s of exis ti ng techn ologies.

H ere ag ain, the variance proc ess has provided the ne cessary flexibility to permit the developme nt of control technology , Operating under temporary var iance s companies in Allegheny Co unty have undertaken s ubstantial research a nd de vel opment programs de s igned to find new way s to control air pollution. Duquesne Li gh t Com pany and Vul can M a teri al s hav e becom e leaders in the dev elopment of fl ue gas des ulÂŁ ur-

ization systems for coal burning power plants and industrial boilers. J & Land Shen ango , In c. have recently cont racted to install coke oven gas desu lfu rization systems several times more effici ent than an y that exi s ted wh en the 1972 regulat ion s we re enact ed.

J & L, Shen a ngo and Duque s ne Slag Products Company are en gaged in se veral pro jec ts to eliminate hydrogen sulfide emission from slag q uenching. Whe n the sl ag quenc hing regulation w as first enac ted , no te chnolog y was kno w n which would control or prevent the se emi ssio n s.

T od a y reductions of up to 90% have alrea d y been attained and research is continuing to fi nd a way to eliminate these emission s altogethe r.

Th ese are only a few of the many examples which could be given of cases where the count y's regulations along with the vari ance process has had th e effect of forcing the development of new air pollution control techn ology , If the regulations were originally d esign ed to require the ins tallation of the then existi ng best availabl e control technology , none of this would hav e happe ned.

T he . criticism that control agencie s often legi slate beyond the state-of-the -ar t, while fr equently true , is seldom justified, espec iall y w hen it is re cognized that air polluti on control regulations are de s igned to reduce air polluti on to le ve ls where the public hea lth will n ot be end angered, and when it is unde rsto od tha t usu all y the only incentive indu s t ry ha s to develop new control te chn ology is the threat of p u nishment for violations of pollution control laws.

Air pollut ion control laws w ere necessary because industry did not de velop adequ ate control te chnology . T o design regul ations that merely refl ect the s t ate-of-the -art is m ere ly to leg islate the s tatu s quo . Allegheny C ou nt y has demons trate d that with tough regul.ation s and a fle xible vari ance procedure, the devel op m ent of control technology can be significantly a cce lerated to the great benefit of everyone with out sa cr ifiCin g esse ntial economic activity.

CONCL US ION he fundamental question s underlying the issue of en vi ronmental prot ecti on hav e been reopened . Decisions made in the p ast five years are being reev aluated. Let tho se who qu es tion the so undness of those decisions come t o All egheny County and see how a heavily industrialized community can with fi r mn ess and flexib ility improve the quality of life of all its citize ns, a nd a t the sa me time preserve and enh a nc e its ec onomic vit al ity ,

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Watergate And The Legal Profession

by T homas P. Rua ne With so many lawyers either convicted or accused of Wa ter-

gate crim es ranging from perjury and burglary to des tr uction of evidence and obstruction of j ustice, th e legal profession ca nn ot afford any th ing less than a thoroug h and exhaus ti,ve investigation.

The year 1973 marked fo r me a nd for most of the 1968 graduates of Duqu esne La w School our fifth anniversary as lawye rs. Th in king back to 1968, it seemed most probabl e then to assum e that five y ears later each of us w o uld be se tt le d into re lat ively permane n t pos i ti ons a n d areas of prac tic e, serving th e law w ell a nd reaping the ben efit s of mem bership in thi s honorable profession . Bu t who among us could foresee th at fiv e years later a Un it ed S tat es Su preme Co urt Justi c, Har ry A. Black m un, wo ul d be w arning th e Am erican Bar As soc iati on of "the pall of Wat ergat e" w ith its "stra nge measures of the ethical", of " unu sua l doin gs in high places .. . by lawyer after la wye r af ter la w yer ... " Wh at did this mean to the legal professi on a s a w hole?

According to t he p resid ent of the A. B.A. , Chesterfie ld S m ith , th e Watergate affair ha s po inted ou t how p oorl y the legal p rofes sion is able to disci pline itse lf (New York Times, July 13, 1973). To meet the probl em, the As s ociat ion is suppose dl y se tti ng up a s p ecial permanent unit dev oted to la w yer-discipline, whi ch would hold seminars, collect data, and genera lly assist the di s ciplinary units of variou s stat e bar associ at ions .

Editor's Note: Thomas P. Ruane is Assistant S pecial Prosecutor of the Watergate Special P rosec ution Force. Mr. Ruane is a graduate of the University of Scranton and a 1965 graduate of Duqu esne's School of Low . Pres ently, he is a ca ndidate for a Moster of Laws in Toxation at Georgeto w n University. Mr. Ruane entered the Department of Justice through the A ttorney Genera l's Honor Law Graduates Program . He begon in the Antitrust Div ision and subsequently served in the T ax Divi s ion . In 1970, he served os Special Assistant U.S. Attorney for the Dis tr ict of Col umbia .

*••• **.

8

O n a more pe rs onal level, the fifth a nniv ersary of my admis sion to the bar was me mo rable bec ause it was followed by a public a nn oun ceme nt that the legal offi ce w it h whic h I w as as sociated had been ab oli s hed , and the fil es cont ain ing the prod ucts of my pas t la bors ha d been "sealed" by the F.B.I. Fort unately, bo th acti on s w ere rendered in operative within a brie f p eri od of time . Othe r eve nts of tha t d at e - Oc tob er 20 , 1973 res ulte d in it s becoming infa mously kn ow n as the "Saturday night massacre", a nd t here w a s n't a non -lawy er am ong th e princi p le pl ayers.

O n the Friday night he was orde re d to cease pursuing by s ubp oena White Hou se t ape recordings and d ocuments rel a ting to p os s ib le Ex ec uti ve Bran ch mis condu ct, Archibal d Co x, Esqu ire, p erceived su ch an order to be a trem end ous s tep b ackward for the rul e of law. Th e next af te rn oon , S aturday , he w ent before a jamm ed press conferen ce to sa y he co uld not obey , and proceeded to re mind th e n ation how import a nt the rule of law was in a democratic society. Ea r ly th at evening my brother called me at ho me to rep ort the new s that Cox h ad been fir ed, a nd th e Watergate Specia l Prosec u tion Force a bo li sh ed .

Within half an hour I was in Mr. Cox's offices in downt own Washington , D.C ., viewing the incredulousness of my colleagues and th e general public. Ra lph Nader, Es qu ire, already at the bu il d in g, was denouncing t he evening's eve nts to a horde of w ait ing ne w s men . Ph otogra phers and camera men jammed th e co rr id ors of the b uildin g, beseechi ng eac h of u s w h o entered for com ment. In the next few h ours w e w it nessed the "new p ost-Wate rg ate morali ty" co mplai ne d of by S piro T . Agnew, Es q uire, in hi s res ig n at io n ad d ress . Th e pu blic outcry was tremendous . T hous an d s of te legra ms began streaming into Cox's off ice fr om eve ry region of the coun try . In r etrospect, it can ha rd ly be doubted t h a t th e "voice of th e peo p le", evi de nced on th is occa sion , was prim ar ily respons ibl e for keeping the Wa terga te investiga tion s aliv e, refu sing to be placated (as some members of Congress w ere) b y th e leg ali s ms invo lved in the fir in g of Cox. Within ten d ay s, Acting Att orney G en eral Robe rt Bork com p letely r evers ed hi ms elf by re-est a blish ing the offi ce of th e Wat erg a te S pecial P ro secution Fo rce and naming a new independen t S pecial Prosec utor, Le on Ja w orsk i.

P oliti call y, the re was precedent and much pressure fr om Co ngress in fa vor of h a ving an in dependent person, outside the a d minist r a ti on in p ow er, inv estigate allega tion s of off icial corru p tion. Pre s id ent Ni xo n [Duke Law Sch ool, 1938 ) was cited as h av in g persuasi vely stated the case in his famo us "C he cker s" speech in 1952 , when he w as a U ni ted S ta tes S enator and can didat e fo r Vic e Presi den t: Tak e th e proble m of co rru ption . You hav e read about the mess in Wa s hington . Mr. Steven son can't clea n it up becaus e he w as pic ked by the man, Tru man , und er wh ose admin is tra ti on th e mess w as mad e. You wo uldn' t tru st t he m a n w ho made th e mess to clean it up . T hat is T ru ma n. And , by th e s ame token y ou can ' t trust the ma n wh o was p ick ed by t he m a n wh o made the mess to cle an it up , and th a t is St eve ns on. And so I say, Eise nhow er, who owe s noth ing to Truman , no thing to the b ig-cit y bo sses - he is t he man wh o ca n cle an up the mess in Was hi ng ton.

In ad dition, the re w a s al s o a solid legal ba s is for co nt in u ing th e Waterga te in vest ig at ion s under an in dependen t prosec u tor. O n November 14, 1973 , U .S . Distric t Co urt Judg e Gerh ard Gesell declared the dis missal of form er S pecial Prosecutor Cox illeg al. T he Co u rt held that the dismissal, at th e Presid ent's direction, wa s beyond the p ower of th e P resid ent because

Congress had validly entrusted to the Attorney General the power to appoint officers of the De pa rtment of Justice; an d the Attorney General had v ali dly issued regulations that provided (a ) th a t th e Sp ecial Prosecutor could be d ismissed on ly for gros s im p roprieties an d (b ) that the Special Prosec ut or' s offic e co uld be abolished onl y up on ag reement b y the S pecial P ro sec utor that his w ork h a d been complet ed . M r. Bork had ad mitt ed th a t neither of th es e provisions were ap plicable on October 20t h.

T h e Court declined to order rein st a tement of Mr. Cox b ecaus e he had not attempt ed to join in the litigation and had publicly st a ted he was returning to the faculty of Harv a rd U nivers it y.

Desp it e the illega l d is mis sal of M r . Cox, the Court ind ica te d that the ap pointment of Leon Jaworski to be the new S pecia l Prosecutor was legal b ecau se ... "Mr. Co x' s evide nt decision not to seek reinst a tement neces sita ted the pro mp t app oin tment of a suces sor to ca rr yon the im portant work in which Mr . Cox had been engaged."

From the above context it can b e s een th at the work of M r . Jaw orski 's offic e sho u ld no t be fe tte red by artificial time restraints or unrealisti c deadlines impo sed b y the adm inis tr ati on under investigation ; or exh ortat ion s tha t M r .

Jaw orski go back to T exas an d forget th e whole thing . His man d ate , signed by A ct ing Att orney Ge neral Bork , provides t ha t th e S pecial Prosecutor s ha ll inve s tigate ond prosec ute a ll offe nses ar lslOg out of the break-in a t Democratic National H eadquarters, the 1972 P r eside ntia l Election, and "allegations inv olving t he President , members of the White Hous e staff , or Pres iden tial appoint ees ." As any lawyer famili ar wit h th e cr im inal law knows , I.he tim e fr ame fr om indi ct ments - t hrough final appeals can extend ove r months and even years. This is an unfortunat e a s pect of the American legal system , bu t it is this very sy stem that the la w ye rs involved must now vindi cat e and validate to a du b ious American public. For with so many lawyers either con victed or accused of Wat ergat e crimes ranging from perjury and burglary to destruction of ev idence and obstru ction of justic e, the legal profession canno t afford anything les s than thorough and exhaustive compliance by the Special Prosecutor with hi s mandat e. Lawyers in particular should demand th is, if for no other reason than to det ermine which memb ers of the profession (a/ k / a O ffic ers of the Court) h a ve been ~uilty of cr iminal cond uct , a nd h ow the A .B.A.' s new group on law yer-discipline w ill res pond to such findings.

9

Consumer Affairs

by Loui s Pora e

"Unfortun ate ly, a sy s tem has ev ol ve d in the U nited S tates tha t all ows dish onest businesses to che at and swindle co nsumers," according to Donna Deaner, former dire ctor of the Alleghen y Cou n ty Bureau of Consum er Affa irs and n ow cons umer affairs commentato r for WT AE-TV. T he Bureau of Consumer Affairs ha s att empt ed to rectify many of the inequities fac ing the consumer during the past thre e years. S inc e its incep ti on in 1970, the Bureau ha s se rved ove r 46,000 All egheny Count y re sidents w ith its s ta ff of 1 2 (a d irector, an administrati ve a ss is tan t, s ix investigato rs, and fo ur clerks .) T hi s includes 4,3 91 inves tigati ve compla in ts and approxi mately 37,000 reque s ts for info rm a ti on and couns eling services . The Bureau's efforts have result ed in refund s and adjustments totalling $ 326,715 for t h o se co ns u m e r s who fil e d formal com plaints, and h as also settled th ousands of cases which d id n ot invol ve an ac tu a l exc hange of mo ne y.

Alleghen y Coun ty lacks a uthority to pass broad-b ased consumer legislatio n of the typ e in force in many met ropolitan are as . Adopti on of a home rule chart er would enhance the County's a bility to pr otect local consumers . Presently , the Bureau must concentrat e on the inv es tigation of cons umer complaint s and vo luntary mediation to settle disputes. S taff members ac t as medi a tors b etwe en the buyer and seller and try to arrange a mutua lly satisfactory solution to th e co nsumer complaint. If efforts at conciliation fai l, the Bureau may suggest privat e legal ac tion to the consume r. Staff members of the Co nsume r Bureau may gather evidenc e and tes tify for the con s umer in any legal a cti on . If th e complain t indicat es either fr a ud or deceptive pract ices, the Bureau may tur n its investiga tory findin gs over to the approp r iate st a te or fed eral agencies for prosec u tion.

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"Publicity itself will sometimes bring recalcitrant businesses into compliance." The Bureau regula rly pu b licizes the names of th ose compa ni es w ho refu s e to cease t heir u nfa ir practices or to make re s tit uti on to in ju re d cons u mers. It also rel eases the res ults of its in dept h investigati ons of bu s in esses t ha t rep ea tedly engage in dec eptive, fr a udul ent or un fair p ra ctices .

"A llegheny County can m ak e real strides in protec ti on," con sumer a dvocate consume r Deaner emp has ized, "only if the Co u n ty recei v es t he auth ority to en ac t co mprehe nsive consumer legislati on."

T o acco mplish th is objecti ve, th e Bureau of Consum er Affa irs has lobbied fo r the p as s age by the Sta te Legis lature of H ouse Bill 1462. This would authoriz e Allegh eny County a nd othe r sec ond-class coun ties to pa ss effec tiv e co nsume r protection ordina nc es . Unde r thi s b ill , the Co unty co uld ou tl aw many of th e mo st preva len t busin ess a b uses plag uing are a con sume rs: tampering with odom et ers in use d cars, aut omotive repair fraud , un fair m erc handis ing gimmicks (phony games , contests an d fre e prizes) , dec eptive ad ve r tis ing (ba it and switch ) and unf a ir debt coll ec ti on ha ra s sment.

House Bill 1462 would als o permit Allegheny Co un ty to lic ense bus inesses t ha t hav e in the pa st dem onst r ated a propens it y for fraud ulent or unfair practices . Th e County could then re voke or sus p end the lice nses of persi s ten t violators. Similar licens ing p rogram s have pro v en successful in a numbe r of cities a n d co unti es throughou t t he nation.

It would also greatl y expand the a uth or ity of the Consum er Affairs Bureau to enab le it to initiate leg al a ction on be ha lf of consume r s.

U nder p r ovisions of the prop osed bill , t he Bureau could fil e civil charges in ma gis trates' court again s t businesses whi ch have wilfully vio lat ed t he County's consume r p rotection law s, and r equest th e imposition of fi nes again st th e offending compan ies . T he Bureau a lso could seek injunc tions in Common P leas Court again st further violations of the County's cons ume r protection laws a s well as resti tution for consumers who have suffered da mages as a re su lt of illegal business practices .

T he County Bureau wou ld also recei v e su bpoen a power to obtain the books and records of suspected viola tor s of consumer protecti on la ws and would vest the enforcement of any licens ing law s enac ted by the Allegh eny Coun ty Commis sioners in th e Bureau of Consumer A ffa irs.

Bureau sta ff memb ers feel the new legislati on will remed y many de fici encies of th e present

1

consumer protection law which is enforced and administered by the Pennsylvania Bureau of Consumer Affairs. Under current law, the State cannot fine violators nor obtain restitution for in jlUred parties. The state cannot establish trade regulations under the present la w or act to stop deceptive and unfair practices not speci fi call y b a nned b y the law. Fina lly, the P ittsburg h offi ce of the state bureau does not possess the manpower to a dequ a t ely proc ess all consumer complaints from its 14-county jurisdiction.

The County Bureau also favors the esta blishment of a con s um er affairs co ur t sys tem s imilar to that in Mi chigan . In effect, it is a sy s tem of b inding arbitration. T h e con s um er court permits an indi vid ual to sue a bus in ess and to hav e his case heard by a pa nel of lawye r s who in tur n render a decision fr om w hic h nei ther side can appeal. Con su m er a ffai rs cou r ts en h ance th e effectiveness of cons u mer legis la t ion and permit indivi d uals to litigat e their p riv a te cl aims against offending b us in esses at m ini mal cost.

The County Bureau ha s encouraged p riv ate consumer suits when ot he r measures fai l. It has also attem p ted to ma ke th e Co un ty Mag is trat e's courts underst andable to the ave rag e layman through p u blica ti on of a pamphle t, "L aw suit s W ith out Lawyers."

Th e Co un ty Bure au of C ons um er Affair s has vigorously ad voc a ted legi s lat io n a im ed a t con sumer protec tio n on both sta te a nd feder al le ve ls . O ne res ult - The U .S. Attorne y's Offi ce in P ittsb u rgh co ndu cted the fi rst pros ecut ion in th e na ti on un der a new fede ra l la w whi ch pro hi b it s ta mp ering with used ca rs ' od omet ers.

The Bu re au has also s upported s a fety s tanda rd s for used cars, a bo litio n of the pric e- fixing power of the S t a te Milk Mark eting Board and of t he Confe ssion of Judgmen t clause, as w ell as pa ssage of no -fa ul t automobile insu r an ce legislati on. In a further effort to arouse interest in consum er protecti on acti vities, the Bure a u has la unche d an aggressive educa tional camp aig n aimed at th e buying puhlic, to inform them of the m eans and methods of protecting themse lves fr om un scrupulous bu s iness prac tices.

"Edu cati on is va lu a ble but not enough. We ca n nev er expect to educ a te con sumers sufficie ntl y so that they can adequately p r o tect t hem se lv es ag ainst a ll forms of decepti ve b us ine ss practices. We need strong consumer laws to regulate the conduc t of commerci al enterp rise s. Thro ugh effective legis lation a nd close cooperation be tween gove rnm ent and cons um ers we can en s ure hig h ethical s t a ndar ds in the ma r ket place. "

FROM THE HALLS Dean Davenport met the Press a nd the students at a Dean 's Forum s ponsored by the Stud ent Ba r Association on Feb ruary 27. The moderator was Richard Pe r hacs, and the pa nelists as king th e questions incl ude d . Vin ce Q ua trin i, Vi nce Dada mo, Orl an d o Sodi ni, A nn

Belger, and H arry Cancelmi. The issues ranged from the quality of educ a tion at Duqu esne, placement progra ms, and a possible new loca tion for the law sc hool (at left).

St ud ent Bar Associatio n ele ctions w ere held rece ntly a nd the ne w P res i de n t is H a rve Linder [mid dle rig h t ). T h e Duq ue sne Women's Law S tude n t gro up s pons ors a disc u ssion group on "W omen and th e Law" w ith weekly p re sen ta ti ons by s tu den ts an d gu est s peaker s on vario us t opics incl ud ing the E q ual Right s Amendm ent , Affirma tiv e Act ion and Edu cation , Abortion and problems of Wom en and Cred it. O h yesl We ha ve a Law Revi ew . T h e Fall iss ue hit the n ew s tands d ur ing the first semester ex a ms in mid -winter. O h ye s! Jur is apologiz es fo r the late ma ili ng of our Decemb er issue whi ch probably reach ed some alumn i in late February ...

[V路 f 路R. )

11

Education Accompanied By Pain

by Craig Ma yer The defense of Joh n T. Scopes in th e fam ous 'monkey trial' was based on the arg umen t tha t the State of Ten ne ssee was aidi ng the establish ment of religio n by m akin g it ill ega l to teach a n y theory that d en ies th e bib lical sto ry of th e divine creati on of man. Scope's defens e, howe ver, w as based on more th a n t he con s tituti on; it also rested on the belief th at gov ernm ent should not inhibit le arn ing by d eny in g s tudent s the opportun ity to learn . O f course, nothing so b r azen as in tention a lly b anning th e te aching of evolut ion is present in the cu rriculum policies of a priv ate Ca tho lic Law Scho ol. None the less, Duquesne Law Sc hool may unwi tti ngl y h ave st ru ctured i ts curric ulu m an d grading s y s tem to produc an effect on th e law s tu de nt s somewha t com parable to t hat injustic e de alt the s tudent s in Tennessee.

Before proceeding, I mus t mak e it clear th at is is no t the intent of th is arti cl e to offer a comprehensive pla n of rev ision for the law school curric ulum n or d o I pres um e t o have that capabili ty. I leav e th is to the experts . The ar ticl e is in te nded to p resen t a s tud ent 's v ie w of how the present gra ding and cours e structure opera tes to inhi bit learni ng, and p erhaps to influence t he fa cult y curriculum committee to ask so me que st ions it m ight otherwis e ignore, and bo re those alu mni who ch oose to read fu r th er.

The a r ticl e suffers at least two limit a ti on s: First, it is d iffi cult to isolate the independent effects of grades and course s tru ctu re . Second , th e observations are b ased on da y s tudents experience s.

From the v ant age point of a studen t in danger of grad ua tion , the probl em can be examined by first looking at the effect of the course s tructure, then at the effects of the grad ing sys te m and las tly a t the polici es whi ch a ppe a r to suppor t the p re se n t practices .

EFFECTS OF THE COURSE STRUCTURE First, a few facts: approximately 80% of a ll cours es taken are re qu ired . T he th ird ye a r of law sc hoo l offers six (6) required su bjects comprising 16 credit ho urs. This represe n ts r oughly 60 to 75% of a third year stud ent's cour s e load.

S ix (6 J required co urs es are a ls o offered in t he seco n d year, b ut th ese comprise 2 1 cred it ho urs.

In addit ion, all s tu de n ts are requ ired to ac q u ire at least 18 elec tive credits d u ring the second and

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thi rd years. Elec tiv e courses then account for app ro xi mate ly 33 % of all cour ses taken in the last tw o years of school, but only 20% of a ll cou r ses ta ken.

Th at so me courses sh oul d be required in th e third ye ar and th ro ug hout law s chool is not qu estioned . What is q ues tio ned is the need or des irab ili ty of t he pr ese nt num b er and distribution of re q uired courses . At first glance, the number an d d istribution of courses mig ht seem ac cep tab le , bu t a close r loo k w ill reve a l h ow th ey ma y adv erse ly a ffe ct the s tu dent. It has been common expe rienc e th a t seco nd year students postpon e taking the bu lk of their electives until the third year. Th is is so because of the 21 credi t re qu ired cou r se load second year and a student's tendency to bal a nce c redit loads.

Within this practice ex ists th e fu rth er practice of taking only one elective course d ur ing th e third semester. Pres entl y, if one takes tw o elec tives third semes ter, he shoulders 6 courses a nd faces 5 mid-term ex a ms. By taking only one elective the student can balance his exams be tween the th ird and fourth s emes te r s and decrease th e chance s of encounte ring a tax, estates and trusts, or consti tut iona l la w d isaster. S ince elec tives offered th e third semes ter ma y not be offe red aga in until the third year , th e p ra ctical effect of req u ire d course crowd ing in the second year is to ma ke cert a in electiv es un av a ila b le.

S ince w e a re dealing with me re electives. it is on ly natural that a studen t's p lac ement in such co u rses should be governed by a lott ery system.

T his remind s on e of the ch ild ren 's card game 'go fi sh'. If I ca n't ma tc h th e card in my hand with the card in my opponent's, I must 'go fish' in th e dec k for a matchu p. At thi s point, it app ea rs that th e admi n istra tio n is s ati s fied that the student's interests in s tud y ing a re as of the law is adequ a tel y fulfilled by th e ga me of ch anc e. T h e cli ncher to th is wh ole system, how ever. is t he cumul a tive effe ct of the lottery and the re quired co urse crow ding in the seco n d year. Th ose electiv es "vol untarily" passed up third sem est er , migh t also be una v ail a ble in the thi rd year b eca use a ll t he ca rds in t he "go fish" deck h av e been pl a y ed. T he fir st neg a tive effect of the prese nt co u rse s tructure then is to close th e do or on many courses in wh ich a st ude nt is in terested.

The nu mber of req uired courses alone narrows th e student s choice of ele cti ve courses. T he

practice of requiring such three credit courses as conflict of laws, legal philosophy and remedies is questionable. One could reason a bly argue that the benefit of these three courses is outw eigh ed by the benefit of the single three credit feder a l courts elective. Indeed, the requirement of takin g th ese three courses may operate to prevent the student from ever taking federal courts or a nother desired elective. It is elementary th a t w ith in a fix ed numb er of courses, the existence of required courses nec essarily displ ac es the opportunity for taking elective courses .

Wh y is it necessary for 80% of all courses to be required? Wh y is t he s tud e nts opportunity for the s tud y of particular interest areas so restricted? I won't tire the reader with the standard answer thai more money and m or e space w ill miti gate the prob lf')m s I've described. On the contrary, the present system ca n itself respond by re-evalu ati ng the required courses and elev a ting some to elective status, by devising a n electi ve selection system that is m ore responsive to the students needs and desires and by re-distrib uting req uired courses in the last 2 years of school.

he a d in the students' choice of electives. One is influenced to select electives on the basis of their past gradin g track record and not from a n internal motivation to explore interest areas.

One is further inclined to choose electives which require less time a nd effort but still return an adequate grade. Thi s permits more time for other subjects and hopefully better grades . Admittedl y, no system w ill remove these considerations from the min d of th e determined student and not a ll students mak e course decisions based on the factors I've described. T he difficulty arises wi th a student's choosi ng to avoid electives of interest beca use othe r electives offer ea sier grades or less efforts . In ternal motivations and student interests a re thus blunted by the ext ernal m otivation of the grade which external motiva ti on is largely b ased on the p remise that students la ck int erna l motivation. A wfully confu sing isn't it? Surely, some pass /fail electives can be offe red. Required courses can still be graded . Wh y shouldn't s tude nts in mortal fear of bein g awarded do cto rat e degrees be able to select courses without the constra int s of the grade?

EFFECTS OF THE GRADING SYSTEM Int ertwined w ith the in h ibi tin g effect of the course s tr uctur e is t he effec t of the grading system . A ll courses, with the minor excep tio ns of research an d wr iti ng and . a ppell a te moot court , are graded on the tr aditional A to F scale. Now , I don't ma li gn th e almight ly grade; it can serve a useful p urpose in provid ing external motivation , d et ecting s up erior s tud ents, a nd a ffording co mp etitive incentives. M y cr iticism is with the gra din g of all courses on the traditional scale and the adverse effect this may have on a student's cho ice of elec tives. The gr ade is intimately re lat ed to th e pro spects of fu ture employment, at least in trad iti on al legal positions.

Proof of this is supplied by th e wide spread practice of potential emplo yers condition ing th eir in terviews on th e basis of class rank. (cl assra nk= cumul a t ive gra de point t ota l) G iven the student's de sire for profitabl e em p lo yment, he will thus probabl y beg in cha s ing th e gra de. Th is racing exercise m ay be very health y, b ut it may als o pro du ce un desira b le effe cts .

S ince 80% of all cou r ses taken are required one ca n reasona bly con cl ude th a t most s tud ent s will and must d evote m ost of th eir tim e to chasing the grade in these courses . Because of the need to devote tim e to these required courses, the grade chasing syndrome may well rear its

POLICIES BEHIND THE PRACTICE It is difficult to detec t a nd analyze the policy considerat ion s which lie behind the p re se nt course s truc tu re and gra ding pra ctice. Firs t, the s tuden t is s impl y not pr ivy to the councils of th e de cision-make rs . S econd, and pe r haps more im porta n tly , it is do ubtful whether a p olicy can even be d e te cted in many are as. The heavy ha nd of his tory clutching at the throat of bureaucra tic in erti a is s ure ly resp on sib le for some of the p resent practices. In any even t , I wi ll m ak e an atte mpt to relate what I perceive so m e of the policies to be.

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Before proceeding it may be useful to meet a few arguments w hich may be advanced a gainst my positions. M y observations to this point migh t be di sm issed by th e reader by reference to A risto tle's famous di cta th at "Ed ucation is accomp an ied by p a in." M y on ly respo n s e is that surely one wo uld agree t h at even Aristo tle wou ldn't d eny one's a tt empt to searc h for th e thres hold of p a in . T he arti cle migh t a ls o be dismissed as a product of seni oritis , the dread disease whi ch invades the ce r ebra l cor tex. I confess th a t I am a ffli cted, but tru st th a t t h e reade r w ill see the article as m ore than a s ymp tom in the terminal stage of the disease. With th ese ma tt ers as ide w e ca n now proceed.

The poli cy b ehind th e large number of re qu ired course s might res t sq u are ly on the beli ef th at th e la w sc h ool must expose th e s tudent to cert ain mate rials because it is ob ligated to provide th e profe ssion w it h at le ast m inimall y competent fledgling a ttorneys . I don 't tot all y rejec t t his proposition; but I do dis agree if the co urses n ow req ui r ed are considered t he m easure of min imal comp etence. I am also suspi cious of whether thi s isn' t the onl y policy beh ind t h e number a nd selecti on of req uired courses and if other policies a re ignored. Th e pro p os ition is app aren tly premised on the belie f that all graduates or ne arly all will be empl oye d as practicing a tt orn eys. It see ms to follow fr om this tha t tra dition a l路 legal skills and courses would be st ressed.

If the Amer ic an Bar Association prognosis is correc t , h owev er, only 16,500 of the 29,000 gradu ates this ye ar will be entering emplo yment in traditi onal legal p ositions and th e job market looks sim il ar in the ye ars ahead. T he products of a legal education then are no t being util ized exclu siv ely in tr adition a l pos it ion s but a re in creasingly find ing t heir way int o other fa cet s of t he soci ety. Might th e p olicy makers consider t h is w h en definin g t he law schools' future ob li gati on s to society? S houldn 't th is b e considere d in s t r ucturing t he l aw sc h o ol curriculum?

I su ppose that an underlying premis e of both the pres ent co urse s tructure and gr ading system is that in their absence, students will pic k their courses like candy in a candy s tore . In ot her word s, men an d wom en a bou t to be awarded their do ctoral degrees are in capabl e of a mature and reasoned select ion of those cours es whi ch best s uit th ei r immediate and futur e needs. I can

14

agree that guidance by the law school is necessary, but migh t th e present sy stem be a bit much?

I suppose th at the ab sence of pass /fail courses can be attribute d to the belief that th ey will encourage medi ocre work and tha t students will seize up on the op portun ity. First, I don' t believe any system ca n prev ent me dioc rity . Second, studen t inte res t and efforts in electi ve cours es may we ll expand when a s tu de nt do es not fear the gra de . In any ev ent , cou rses w hich req uire minima l effort are currently av a ilable and any und esira b le effects of a pas s/fa il sy s tem w ould n't seem an y more for eboding that effects of the tr a dit io n al gr a d i n g system .

Wh y not exper imen t?

CONCLUSION Admittedly , I m ay ha ve overst a ted th e problems a nd omitted or fa iled to give du e consideration to m a ny factors. Ne vertheless, I believe I h a ve identifi ed and demonstrated a few und esirabl e effects of the presen t curri culum st ru c ture, and a tt emp ted to show that t he app a rent policies whi ch m ay lie b eh ind th ese practices are not altogether co nvin cing . 1 sim ply as sert that the present course structure and gra d ing sys te m can be improved . It can be changed to min imize inhibiting effec ts on a st ud en t's ab ility to s tudy areas of interest or sha rpen legal skills such as writing an d oral advo cacy . Ed u cat io n is ac co mpanie d b y pain, but a n educa tion al system whi ch unwitt ingly ge nerat es ad de d pain and fr ust ration should in the le ast be qu es tioned.

Alumni William G. Sutter, Jr. Around six in the m orn ing Bill clim bs out of bed int o a sweatsuit for the beginn ing of a work day, wh ic h beg ins at th e s pa and us ually brings him back to hi s famil y about 14 -16 hours la ter.

Bill and wife Linda we re m arri ed thro ug hout his law schoof d ays w hic h found them li ving in a $32 a month apa rtm ent in the Hili. N ow , tw o English S ett ers, 21fz ye ar old Eden an d p ra cti cally a year old Will lat er , Lind a and Bill are res ident s of Edgewood, ne ar Fr ick Park .

Hard w ork is no new att racti on for him hav ing w ork ed at various full and part time en deav ors s ince th e ag e of tw elv e. T h roughout law school h e held three jobs: in th e m orning doing conde mn ati on w o rk for his fa ther (recently re tired cou nsel for th e Army Corp s of En gin eer s), col lecting fo r an agenc y aft er scho ol, a nd dr iv ing a ta xi in the evening s . Duri ng hi s t h ird year an d up un til th e s ummer 196 5 bar exami na tion , Bill clerked for Thorpe, Ree d & A r mstrong, th ough he also worked in t he law library - at t im es w ith our Profess ors G edid , Ba r ker an d Sekul a. Not only did Bill a nd " the Coach" (as Profe ssor Sek ula is amiab ly referred to aro und Rockwell H all ) freque nt the library toge the r, but th ey cou ld also be fo und fre quentl y in Sandroni's a nd Frank's for a "few " beers. H e w as "very much an all arou nd guy . .. a genuinely nice person."

But Bi ll finds Professor S ekul a's epithe t (" the Coach") quit e a switch - "It was Ra y who coined the na m e to refer to our assistant de an. " Bill rememb ers that his cl a ss wa s a coh esive one: "a few were less a ffabl e tha n th e others, but we all got al ong we ll togethe r" - all tw en ty one by co mm enceme nt d ay. It is the q ua lity of the fe llow s tudent s a nd their int erest in the la w w h ich Bill fe els is a primary fact or in one's legal educat ion. "If you have a goo d cl a s s, you'll learn a helluv a lot mo re law at Duq uesne than you would in a bad class at some 'na me' school."

Accordi ng to Bill, law is se lf-taught; the professor can only guide the stu den t's education.

The professor can teach ne ither technique nor analysis. It is his function to expose the students to the generic area and stimulate interest. "Anything more is surplusage." Bill commended the

majority of his professors for being "prac tical guys." They explored the parts of each issue which rela t ed to the students' practical knowledge and hence ca ptu red their int erest.

A fe w years of p ractice w ith Fred Egler, contrac t w ork for the Urb an Redevelopment Authority , and thre e years as its gener al co un sel, brought Bi ll in 1972 to the recog nition of h is ow n intere st in office m anagement and th e gene ral practic e of law as a s ole practione r. Th e years of working for others , his training for th e t heater at Allegheny Coll ege (Drama '62) a nd "t he d evelopment of my common sens e" (Duquesne S choo l of Law '6 5 ) are the found a tions for his s uccessful trial a nd gene r al practice tod ay.

A s a matter of fact , Bill feels tha t Duq uesne should offer a course called the General Practice of Law in whi ch lo cal practitioners sit down wi th the students to dis cuss amo ng other things law offi ce management , selection of personnel , the importance of personalit y , copin g with di s co uragement , lo ng hours of work, clie nt an al ysis and client reacti on to the vi cissitudes and de lays of Penn s ylv a nia Civil Procedure. Th e p erson-t ope rson rela tionship of client and att orney cannot be empha s ized enough . Bill regrets t hat th e many cl as sic situations with wh ich he h as been co nfront ed were not discu s sed at la w sc hool.

"S omeone should have mentioned th em to m e at sc hool. W it h te aching a nd a li ttle thought. I wo uld have know n how to react." Bill ad monishes the young lawye r, "You're as mu ch before a judge and jury when you'r e before your client for the first time for that fir s t hour." Absolute candor is essenti al wh en engaged in a faceto-face int erview wi th a clie nt.

Bill env isions a Forbe s Ave n ue legal ser vices center es tabli s hed by the sc hool and staff ed by lawyers an d Duque s ne st u d en ts. The program wo uld expose th e s tudent t o many d iffe rent k inds of people with many d iffere nt needs for legal se r v ices. It w o uld be nefit the local bar by s uppl ying s tudent se r vices on a specifi c assignment bas is. Tho ugh th e Ne ighb or ho od Legal Se r vice and s imila r grou ps bring th e law yer and int ern in co n t act with the poor a nd downtrodden, they fail to also focus on the other relevant a spect of law - ma king a livelihood .

Th e d irect contact which th e stu dent would have w ith client s and lawyers through the sidewalk services program and a reestab lished prer.eptorship would br"ing more graduat es into general practice. Bill fe els "man y graduates go into go vernment practice or la w r elated fi elds because of w hat they think are insurmountable problems of earning a 'l iving" in the practice of law.

(D.S .P. ) 15

A Distinguished Alumnus: Gilbert Helwig

by Ernest Orsatti

As an undergraduate student at Duquesne, Gilbe rt Helwig was the editor of the Duquesne Duke. the s tud ent ne wspaper, and ed itor of the Duques ne Monthly, the student lite rary magazine, and was ac tiv e in the Duquesne U niversity Intercollegiate debating program. He majored in Eng lish graduating cum laude with an A. B. degree in 1938.

Upon graduation , he commenced graduate study at Duq ue sne as a tea ching fe ll ow in th e Englis h depa rtment. In the fall of 1940, Mr. Helwig entere d the School of Law . Evening Division . He grad uat ed in 1948 with his s tudi es bei ng interrupted by military se rvice with the Un ited St at es Ai r Force from 194 2 to 1946 in the Asiatic-Pacific Th eate r. In August of 1948, he took th e Penns ylvania Bar Examination and scored the highes t grade in the st ate .

Shortly aft er graduati on Mr. Helwig jo ined the sta ff of the Legal Aid S oci ety of Pittsb urgh where he served the balance of his then required clerks hip . In Jun e of 1949 he was named Hea d of the Offic e of Voluntary Defender of the Legal Aid So ciety of Pitt sburgh . During thi s period he served as Faculty Advis or to the Student Leg al Aid Program of the U niversity of Pittsburgh School of Law .

Fro m 1949 to 19 51 Mr. Helwig was a member of the law firm of Ston e, Silvestri and Helwig.

In 1950 he was appointed Assistant District Attorney of Allegheny County, a post he held unt il Aug ust of 1951 when he became associate d w ith the law firm of Reed, Smith , Shaw an d McClay w here he is currently a Senio r Parlner.

In 1950 Mr. He lw ig became an adjunct professor of law at Duque sne w he re he continued

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until 1970. Alt hough he taug ht Constitutional Law, Co ntracts, Evide nce and Legal Drafting, the course that he taught for the longest time and th e course that he enj oy ed teac hing the most was Penns ylvania and Federal Civil Procedure.

Gil H elwig's princip al fi eld of activ ity has been Litigat ion, w ith ex tensive work in both Civ il and Crim inal Litigati on in the federal courts.

Some of his other activ itie s and achie vements incl ude: Membe r of th e Pittsb urg h Ins titute of Leg al Me dici ne, Coun sel fo r th e Allegheny County Medic al Socie ty, Gover nm ent App eal Ag ent of the Selective Service Sys te rn, Chairman of the Legal Division of the U nited Negro College Fund Drive, Arbitrat or of the Am erican Arbitra ti on Association, Member and Past President of the Ac adem y of Trial Lawye rs, Fell ow of the International Academy of Trial Lawye rs.

Mr. H elwig advise s the student that in ch oosing their particular area of la w or their typ e of employm ent wi th legal tra ining, th ey sho ul d keep in mind th at the legal profess ion has u nd ergone great change s in the pas t twent y years. It is a mistak e to think th at there will not be even gre ater change s in the future. It is vitally important to pro ject what the legal profes sion will be like twenty ye ars fr om now . A s in th e choosing of any occ upation, the law s tud en t must understand himself or he rself and decid e wh at too ls of the law profession w ill giv e his or her life meaning .

Juris

Duquesne University School of Law 600 Forbes Avenue Pittsburgh , Pennsylvania 15219

Non路Profi t Organ iza ti on

U.S. POSTAGE

PAID Pit tsb u rgh. Pa. Pe rmi t N o. 390

POSTA GE REQUIRED F OR THIS MAI LI NG MA T TE R