Juris Magazine- May, 1975

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Money and Your Rights.

by Sheldon H. Nahmod Consitutio na I Conventi on? ... . ..... . .. ... .. 11

FROM THE EDITOR'S CH4 R:

Involvement in '76

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Nearly two hundred years have passed since the birth of our nation. Across America, cities are preparing to celebrate the upcoming Bicentennial. The commemorative events range from traditional museum exhibitions to more contemporary ethnic interpretations of the Revolution. Certainly, the displays and festivities appropriately reflect our heritage. They may not, however, be the only or best way to celebrate.

The Revolutionists risked their lives, their families, and their wealth to effect a political ideal.

They sought to establish a nation where an individual could be the sovereign of his own destiny; the people, not the state, were considered the better guardians of liberty. The state, therefore, should be subservient. This ideal could not be achieved easily. Its success rested in the active participation of the citizens in the affairs of the country. An apathetic populace would be quickly dominated by a strong government.

Today, Americans are too often satisfied with letting others solve the problems of the nation. A commonly held notion is that only the Federal government, and State governments, have the responsibility to act. This lethargic condition may stem from the recent political scandals or from the numbing effects of the Vietnam war. Of course, this same indifference may have been the cause of those unhappy events. Whether these events were the cause or effect, however, matters little, for it is clear that the vast majority of Americans are apathetic. And apathy is the antithesis of the Spirit of '76.

The greatest tribute we can make to our forefathers, therefore, lies not in casually celebrating the Country's birthday, but in actively participating to solve its problems. This duty does not end on election day, nor is it reserved to elected officials, or peculiar to outspoken radicals. Rather, this responsibility is continuous and belongs to every American.

Contemporary avenues of political expression may not be fully responsive to citizen participation. Indeed, there are obstacles, but these obstacles are not an absolute bar to involvement.

During the Revolutionary period, our counterparts solved a similar problem through Committees of Correspondence and by individual pamphleteering.

Perhaps such methods are not feasible in today's sophisticated society. But just as there were means for political expression then, there are means now.

The recent success of consumer groups and environmentalists affirm this conclusion.

To be sure, any meaningful political involvement requires the citizen to make sacrifices. To maintain the political system that our forefathers envisioned requires hard work. We would do well to heed the warning of one Revolutionist who wrote: "It is the common fate of the indolent to see their rights become prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his time and the punishment of his guilt." 1776 was the birth of our nation. If we awake from our apathy, perhaps 1976 will be the rebirth of its spirit.

(T.O'B.)

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Vol. vmNo. 4-May, 1975

Juris

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Edi tor-in-Chief

Timothy P. O'Brien

Layout

ASSOCiate Editor

Joseph M. Gula Features

Jonathan Foster

John C. Bates

News

Alumni

David De Rose

Steven Blum Assistanl Editors

Robert C. Nowalis James Kutz Carol A. Porell Staff Members: Robert Barrett, Jeff Bernstein, AI Goellner, Jerry Marks, Mark McKinney, John McLane, Jackie Mikula, Greg Mitchell, Kenneth Moskowitz, David O'Boyle, JoAnna Panzar, David Petersen, Gordon Reynolds, Robert Williams, John Woltz.

Faculty Advisors: Nicholas J. Demas and John J. Sciullo.

JURIS is a student publication of the Duquesne University School of Law. Manuscripts and comments may be addressed to JURIS, Duquesne University School of Law, 600 Forbes Avenue, Pittsburgh, Pennsylvania 15219. Telephone (412) 434-6305.

Copyright 漏 Duquesne University, 1975

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The States: Alive and Well, Don't Send Flowers

by Ernest P. Kline

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Contrary to predictions by promoters of superregional government, state government is alive and well and living in 50 State Capitols.

The idea of regional governments, which would wipe out state boundaries, replace the traditional role of the States and form new geopolitical associations, has received support and even occasional promotional pushes from academic and reform circles over the last twenty years. It was an idea, however, whose time never came.

The premise of this idea was that the States were too weak to survive, that they were ill-equipped to serve, that they were unnecessary middle-men, that they had lost their will to govern, and that their destiny lay in being subservient to the fe deral colossus. Indeed, during the last two decades, there was a struggle for equal partnership between the States and the Federal Government. At times it was so deceptively subtle that the shifts in the balance of power went largely unnoticed, except by the participants. The results are now evident.

The states have made a come-back. They are r storing equilibrium to our federal system . Time and circumstances have thrust the States into the vanguard of governmental leadership, of imagination, of experimentation, and of innovation.

Today, there is little doubt that State governments are playing a central role in shaping the development of American society.

If there is any single point I can make about the American political system as a whole, it is that the system is a partnership of government. Indeed, the federal principle is the motivating principle of th e American political process; it requires partnership.

I often get the feeling that the American public lacks a sufficient appreciation of our federal system of aovernment. The myths and misunderstandings about the workings of the American federal republic are frequently the source of fals hopes and frustrations. Although it is clear that tomorrow s governmental structure and political processes will not be exactly the same as today's or yesterday's, there is little likelihood of drastic, structural or legal change in the way American go vernment is fundamentally organized. The Constitution of the United States is still the rock upon which we build the American democratic dream. The role and the legal status of the States is firmly anchored to that rock. And wh ile the whole becomes more than the sum of its parts, it must be remembered that the parts, the States, were intended to remain a substantial locus of power.

Such is still the case in 1975 . Dominant power is not and should never be centered in Washington and the Presidency .

This reasoning may seem excessively basic to present to this readership, but it bears attention because there is often a tendency to forget this fundamental principle. In the ebb and flow of American history, the States have had their good days and their bad, their days of being dominated.

This is not only historically understandable, but beneficial. The flexibility of our system of government and its ability to respond to changing needs has kept it healthy for alm ost 200 years.

The real world is, of course, much more complicated than any simplified theory of federalism.

The line between federal and state responsibilities and authority is almost impossible to draw . A flow chart of services and decision-making processes would look like a spider's web. I cannot in the space allotted begin to delve int o the detailed theory of federalism and its dynam ic workings.

I prefer to talk abou t what I see as the potential emergence of a new era of leadership f or the States in the federal system.

Editor's Note: Ernest P. Kline is p resently serving as the Commonwealth's 25th Lieutenant Governor. His state service began in 1965 when he was elected to the Senate from Beaver Coun ty; a position he re tained un til being sworn into his present o ffice January 1971.

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I. NEW ERA OF LEADERSHIP F OR THE STATES In the pasL two-thirds of this century, as the federal government increased its power, state government received less attention. The New Deal for a time almost m onopolized power in Washington as did the various "Wartime G overnments."

Federal efforts in the 1960's to solve the Nation's problems resulted in some rna sive fa ilures and widespread alienation of the citizenry . T he at tempt at delivery of governmental services at that level resulted in loss of control of the massive bureaucracy, lack of coordinaLion within the bureaucracy, and the suffo ation of programs in red tape. The public is disillusioned and "has had it" with that approach. So where do we go from here?

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Today the altered composition of st ate government and the powerful new forces working at that level cannot be ignored. State governm ent is showing a growing ability and will to tackle tough problems. Further, as a result of citiz ens dem anding expanded services, state govern men ts are growing from the bottom up .

In order to meet these demands, state legislatures have created new ad min istrative agencies, lodged new powers in the executive, and have raised through taxation the money to pay for much of this.

The consumer and conservation movements of the 1970's are two examples of growi ng state power and responsiveness. The public interest advo acy that started with these two concern s has grown and changed the nature of sta te governmen t.

In fact, a quiet revolution has taken place in the past decade . This transfiguration is due, in part to the spreading of power in the decision-making process. Witness the mushroom ing of administrative and regulatory agencies; practically every state now has its own environmental protection agency ; many tates also have created consumer protection offices; land use, once the exclusive province of local political subdivisions, is becoming a concern of the state.

E stablished governmental bodies are either spawning new su bdiv isions or are themselves assuming new roles and expanded functions.

Whereas 20 years ago there were perhaps a few hundred rather weak state ad ministrative agencies natio nwide, t oday there are m ore th an 1500 with considerable clout. Most new state agencies and commissions are created t o fit today's social conditions and t o serve the public good.

N a t only have the rules changed, the arena in whic h the game is played has been all but tom d own and re built. Throughou t most of the United States h istory , at least u p to the 1960's, legislatures conducted their business in a casual and leisurely manner. Since th ey met for 30 to 90 days every other year, the atm osphere was like that of a comfort able club. Today, h owever, t he legislature is faced wit h a full agenda and is seldom out of session.

For example, in the 1973-1974 session of the Pennsy lvania General Assembly , 4,721 bills were introduced . Naturally not all of t hese passed. Only 66 2 bills f ou nd their way to the Govern or's desk and became law. Nevertheless, most h ad to be read and examined . Th e commit tees had to do research and determine p ublic opinion.

One reason for this bill introdu ct ion explosion is th e e norm ous increase in state agencies, creating a need for enabling legislation . The agencies bring to every legislative session programs includin g a pile of bills t o be introdu ced. Another less obvious fact or is th e ever-m ou nti ng volu me of new ideas and proposals and the speed with which they spread fro m state capitol to state capitol. Also, the more readily accessible legislative process h as permitted individuals and their collective groups to push 路for bill introduct ions.

T o accommodate the heavier wor k load, state legislatures are meeting more often and longer.

Only a decade ago, 22 st ate bodies were meeting annually and 28 were mee ting every two years. In 1974 only five sta tes did not h old regular or special sessions. In many states, wh en th e sessions end, interi m commi ttees continue to wor k. I n Pennsylvania, where the legislature has becom e virtually a con tinuing body, com m ittees wor k th roughout the year. Moreover legislative reform has caused procedural changes : more committee roll calls, more p ublic h earings and fewer execut ive sessions - all of which are opening up th law-making process in ways prod ucing a new style of conduct, but also suggesting a considerable difference in the product to be turned-out.

Three of Pennsylvania' s recent ru le changes serve as excellent examples. First. the majority of a House committee may now schedule a meeting against the chairman's wishes. This is a significant change since it vitiates the traditional o ne-man rule. Second, notice must be give n before a committee considers a bill. This also lim its th e chairman 's power because he no lo nger can suddenly call for a vote at a t ime when a bill he dislikes is certain to be defeated . Third, all committee votes must be taken in ope n session. In the Pennsy lvania Senate, committee chairmen now frequen tly hold

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open meetings of their committee and committees have been restructured to deal with new concerns and renamed to reflect changes in the executive branch.

Whatever the speed at which they are changing, there is abundant evidence that the Stat es are growing in vigor, in power, and in the will to use that power to unilaterally bring about change within their borders and to work together to bring about change in the nation. It should be noted also that power is not a fixed quantity, but an expanding one, so t hat any contin uing ex pansion of federal power does not necessarily mean dimunition of the powers of the States.

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II. STATE'S ROLE IN THE '70's I believe that just as the 1960's witnessed a great expansion of federal activity in a num ber of fields and a burst of federal innovative activi ty , there is a definite need in the 1970's for the States to take over that innovative and aggressive role. The need and the desire are there. The State's p lace in the American partnership is becoming more apparent .

No longer are the States deferring to Washington or accepting what Washington hands out in programs or policy. I believe our energy should now be directed toward improving the federal system and toward strengthening ('he place of the State as the keystone in the federal arch .

IL must be recognized that state government is also in for its fair share of public criticism . The question must be posed and answered : Do the States have the will and the means to do a better job of delivering govemmental services? As you might suspect, my answer is "yes". A "yes," however, backed by specific action in the States to prove it, and a "yes" qualified with recognition that there is a long way to go to sort out the problems and then tackle them. American govemment still lacks total resp onsiveness to the people which is a basic tenet of our political system. The balance we require in our federalism - balance in decision-making power, balance in fiscal resources,

balance in program responsibilities - still has not been achieved.

With all the talk of the federal giant, some people have jumped to the conclusion that States must therefore be weak and helpless. Not so . Both New York and California have more people in public employment than the federal government did on the eve of World War II. Seven other States, including Pennsylvania, have state-local government work forces with over 250,000 employees.

Pennsylvania'S payroll of salaried state employees numbers 110,515 as of J anuary 1, 197 5. Our annual general fund budget is $4 .3 billion f or this fiscal year. That, as they say , " ain' t peanuts".

There are some other comparisons wh ich indicate at least potential state strength and ab ilit y to serve . The federal civilian work forc e, as of October, 1973, was 2,641,047. F ull-time employment for all 50 Stat es at that time was almost equivalent, 2,546,728. Taking local government int o c on s iderat io n, an additional 7,03 1,26 4 employees are included. This is a t otal of 9 ,577 ,99 2 workers available to the States to t ackle public problems and deliver service.

Money is a d ifferent matter, however, and the figure s tell the tale of why the States are handicapped. In 1973 t he total revenues for all the States was $ 1 29.8 billion. In contrast, the federal revenue that year was $232 .2 billion, and in 1974 receipts jumped t o $270 billion. The fed eral-state difference in financial resources is obvious.

Despite the financial inequity, state governments do have power and resources. The larger American States are the equals of some of the world 's most powerful nations. The States are in a key position to deliver governmental services demanded of them. Yet they are small enough t o maintain good communications with their citizens and remain sensitive t o public opinio n.

Part of the States' ad aptation has been manifested in their efforts to improve their institutional capabilities, to handle the new tasks they have assumed. In the twentieth century t here has been an extensive and continuing reorganization of state governm e nt s leading to increased executive responsibility , greater central budgetary co ntrol and growing expertise of stat e personnel, whose numbers are also increasing. The State of Pennsylvania's payroll increased fro m 67 ,326 people on January 1, 1965 to 110 ,5 15 peo ple on January 1, 1975.

There has also been a great and continuing increase in the States' supervision of t he funct io ns carried-out in their local subdivisio ns. The St ates' role in this respect has grown as fast or faster than t hat of the federal government. The States' supervision has been increased by the provision of technical aid t o t heir localities, by fin ancial grants and by control of the power t o raise revenue for all subdivisions . The States are also becoming more willing and able to do more t o meet metropolitan problems. In fact the future role of the States will in large measure be determ ined by t heir ability and their willingness to come to grips with metropolitan problems comprehensively and thoroughly. 5

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III. PROBLEMS F ACING STATE GOVERNMENTS State governments face serious problems. They have their hands fu ll, and not just in serving th e citizens within their borders. State integrity is challenged by the nu m ber of federal programs and administrative requirement s that proliferate in an effort to ensme state compliance with federal law and federal rule-making.

Some of the worst feature s of federal bureaucratic control are manifested in many fe deral aid programs. Adm inistrative form s are so co mplex th at they make adm inistration unwieldy . Fi nally, the proliferation of federal regu lations and of new federal aid programs in Washington without consulting those responsible for general government in the States - th e Governors and the legislatures interferes with State management. This kind of arbitrary federal action prevents the development of new programs consistent with tate needs.

Recen t inadequacy in the response of the fe deral government to the many aspects of the energy crisis is a good case in poi nt.

Too many tim es we needed federal assistance and couldn't get it. Other times we could have resolved the problem ourselves but the federal government interfered. Again, recent fuel shortages serve as an example of t his inept meddling.

All of this is not to suggest tha t more rational management, m ore money and better leaders are going t o straighten everything ou t. We live in an era of crisis and change; one th at will witness either the decline or the improvement of life. I believe that the well-being of the t ates and the health of the nation are inextricably linked. Grave problems confront us. The deterioratio n of t he nvironment, sub-standard housing, unemployment and underemployment, rising crime and violence, inadequacies of education systems, poverty and sic kness are a few .

The States and the en tire fe deral system must face th ese proble ms. Coping with them , let alone solving them, demands independe nt creativity, a diversity of approach, widespread involvem ent, intense participation and the wi ll t o persist however diffic ult and discou raging the jo b. T herefore, t he reality is a long and constant process of work and struggle , not some m agic shot in the arm which will corr ct every ill and right every wrong. That idyllic state exists only in the realm of King Art hur's Camelot. So the challenge is a lifetime one, long o n criticism - self-imposed and public - and short on acclaim .

IV. ROLE OF STATE LEGISLATURES

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State legislatures cannot be left out of this chaInge . With the growth of the size and complexity of state government, the legislature must not only balance the governor, it must be a full, efficient an d effective partner in resolving problems and

providing services. It must play a significant part in the governments of the State and it must have the will and the means to d o its part.

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The State legislature has three essential tasks.

F irst, it must participate vigorously in policy making. Second , the legislature must review and evaluate the co nduct of administration and the effects o f state programs. It cannot merely aband on enactments to the state executive branch on the assump t ion that its job is complete once a bill has become law. Third, the legislature must represent and help out its constituents. I believe the Penn ylvania General Assembly is making progre s and is participating in the movement for t he kind of state legislative reform which will improve its ability to p rform these tasks .

I am not prepared to suggest that state government is a well- oiled machine, completely capable of ta kling any and every problem with which it is confronted . T here are squeaks in the sy tem, some rusty gears and a few structural parts that could use reshaping or even replacing.

Much must be done to improve state gov rnment. Continued efforts are needed. Her in Pennsylvania they are going on right now . We have reestablished the Governor's Review of Governmental Management to do another thorough analysis of the operation of state governme nt . Our aim is to further improve the effectiveness of state government and to save an additi onal $150 million within th e next two fi scal years. The previous businessmen's task force , which we formed in our first term brought about a total of $256 million in government economies and efficiencies. Many other p.rogressive efforts whic h do not readily lend themselves to a d ollar tag, such as correction reform, youth services, health care, consumer protection, election reform, and mass transit revitalization, are being undertaken .

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V. CITIZEN PARTICIPATION

Most of the problems facing States now are problems which can be alleviated if c~tizens a~d governmont will work together. ActlOn by mterested citizens for the improvement of state government is vital.

The citizen, however, often avoids the opportunity to become active and interested in state government issues. Low voting turnouts at ~~ate elections, low levels of activity in state polItICal party affairs and a general disinterest in state affairs characterize the behavior of citizens in state government. In many instances, the citizen lacks a general understanding of the governmental process with a result that state government issues are of no concern to him . When J ohn Citizen is angry , too frequently he is just generally angry and is willing to broadcast th at fact, but he is not willing to contribute toward find ing solutions to the problems which have generated his anger. Frequently the citizen demands that there be no new taxes or increase in taxation rates, that salaries of state officials not be raised and that no changes in governmental organization be attempted. Yet .he usually demands that his state government prOVIde more and better services.

State government is not helpless to meet these demands, but a public price must be paid in manpower and money.

The States have always provided a governmental arena for experimentation. If we are to meet the demands for the remaining years of the 20th century, we will have to experiment. In some instances state government will have to assume more authority over local problems if the problems of the metropolis are to be solved . Problems of services and intergovernmental relations will increase as the population and service demands grow . The ro~e of the S tate in local issues already great WIll become even greater.

Change will be needed in state governments, but change must be orderly, planned and wellconceived. If the neces ary improvements in state government are to take place, indiv idual~ in ~o.u ps within the states, both citizens and public offiCIalS, will have to work to achieve them .

has. There must be a foundation of principles beyond emotionalism and expediency. What has happened to the great American ideals of the past, such as, democracy, equality, social justice, neighborly humanitarianism, human fellowship and brotherhood?

We have not been able to achieve these goals, bu t I believe they still are the American dream , even if we see much evidence that, as a people, we do not always act that way . We do not act that way because the people of the United States have been neither inspired nor challenged to do so. Our present national mentality puts too much emphasis on defense of the status quo. We need to put the dynamism, the sense of progress and perfectability back into American life.

The American people are looking for a new purpose. They want a philosophy that will lay out and explain what must be done through governmental, social and individual action to raise the quality of life in the United States.

For too long we have had government by crisis, not government by plan. Most of the fundamental economic and social problems of this country have stubbornly refused t o be solved by such a piecemeal approach: the ccncer in our cities; the hopeless mire of our transportation system; the blight of enduring poverty; the inadequate education of our children; uncontrollable and unpredictable economic forces ; the terror of crime and drugs; the violence in American life ; the continuing pain of unemployment; and housing that is in short supply and is shockingly inadequate affirm this conclusion .

The public has come to feel that the solutions of the problem solvers, particularly in the form of governmental programs costing more and more dollars, have not worked as well as hoped. The people are looking for basic and reliable guidelines that will point the way out of the current social morass.

This is the great search and it is one in which every American should participate.

VI. FUTURE OF STATES The future of state governments is dependent , above all else, upon citizen participation and action. Throughout American history the effort to devise ways and means of increasing influence of the ordinary citizen in the affairs and decisions of government has been a continuous one. Our administration made this a major goal in its first term . It remains one of the essential goals of our administration. Particularly in the shift toward aggressive consumer advocacy before regulatory agencies.

Finally, there is more to America's future an~ sense of direction than the kind of government It

7

Money, Legal Power and The Bill of Rights

by Sheldon H. Nahmod

Doctrinal Developments Even a cynic would concede the protections of the Bill of Rights have been significantly expanded.

While the Bill of Rights was originally intended to keep the federal government's hands off the individual, the adoption and subsequent interpretation of the 14th amendment made certain of its provisions applicable to the states. The Bill of Rights now serves as a shield to enjoin .all governmental action which infringes upon the constitutional rights of the individual.

However, after an individual's constitutional rights are violated, the shield of injunctive relief can accomplish little for the injured individual . For example, the evidentiary rules of the 4th and 5th amendments only suppress evidence in a criminal trial; they do not redress the injured party. Can the Bill of Rights serve as a sword to redress constitutional violations? Several notable developments indicate it can.

First, Section 1983, a Civil Rights Act enacted

by Congress pursuant to authority of the 14th amendment, provides an action for damages against state officials who have violated an individual's consLitutional rights. Second, in the Bivens case, the Supreme Court held that the 4th amendment standing alone gives rise to an action for damages against fede ral officials. Some federal decisions have held the same is true under the 1st and 5th amendments. Finally, the Court held that an action for damages for violation of another's constitutional rights exists under certain circumstances against an individual who is not a state or federal official.

These doctrinal developments are impressive. To what extent, however, can individuals as a practical matter take advantage of the protections of the Bill of Rights? The short answer to this question is that it depends in large measure on money.

Money, which may be the root of all evil, is a source of considerable economic power. In our society, "money talks." One's health , social status, education, and mobility are all related to money.

Another kind of power, which I call legal power, is based significantly on money. This legal power has at least three components: access to the courts, control of powerful private entities, and freedom B of choice.

Access To The Courts Money is relevant when an individual seeks access to the legal system to redress constitutional violations by federal and state officials. Even if an individual has the siomach to pursue his or her legal remedies and can overcome doctrinal obstacles such as official immunity, the threshold obstacle for all except the most wealthy is money.

Lawyers, investigators, court reporters, filing fees, court costs, appeal costs - all require a great deal of money. While there are some organizations which represent plaintiffs in civil rights and civil liberties test cases, there are simply not enough organizational resources to deal effectively with most violations of constitutional rights.

Editor's Note : Sheldon H. Nahmod is a graduate o f the University o f Chicago. He received his LL.B. and LL.M. from Harvard Un iversity School o f Law. Presently , he is a Professor o f Law at Duquesne University School o f Law where he teaches Torts, Administrative L aw, and Political and Civil R ights.

"Spiri t of 76" by A. M. Willard

A right of free access to the courts when constitutional violations are asserted could be created.

The threat of damages would encourage public officials to comply with the Bill of Rights. Plaintiffs in such cases would not pay court costs when non-frivolous claims are involved; further, defendants would be responsible for attorney's fees of plaintiffs who prevail on the merits. However, the Supreme Court has stopped the development of a due process right of free access at the divorce courts. Since the Court has refused to apply the concept to bankruptcy courts and to judicial review of a welfare agency's adverse decision, it is unlikely that a free access right would be created here . In the absence of judicial action , Congress could legislate free access to the federal courts for such cases.

Another possible approach to the problem is the creation of state and federal ombudsmen. As representatives of the people paid by the respective governments, the ombudsmen 's sole job would be investigating constitutional wrongs committed by state and federal officials. As an alternative to filing a lawsuit, aggrieved persons could complain to an 0 m b udsman. After investigation, t he om b udsman could not only award damages (subject to judicial review), but also take other action, such as removal of the offender.

The problem of money and access to the courts is not, of course, limited to cases involving violations of constitutional rights. It arises even when private persons, one wealthy and one not so wealthy , have a dispute. In addition, I do not suggest only poor persons have this access problem.

My point is that anyone not in the upper income brackets is seriously hampered in efforts to vindicate legal rights. And, while this is a serious matter generally, to my mind it is especially troublesome when compliance with the Bill of Rights is at stake.

Private Entities Money is also relevant to the control over our lives exercised by private, economically powerful entities which are not politically accountable. By now the observation that such entities possess and use the equivalent of governmental power is trite.

This observation is true not only for employees, but also for others directly affected by their decisions. Examples range from quasi-public utilities with monopoly power, through banks, to large corporations.

The doctrinal obstacle which prevents these entities from being subject to requirements of the Bill of Rights is the concept of state action. Early Supreme Court decisions took a functional approach to this concept, at least insofar as free speech and racial discrimination were concerned.

However, more recent decisions have not found state action when a state-licensed club discriminated on racial grounds and when a utility terminated services to an individual without a hearing.

The Supreme Court decision which recognized there may be a cause of action for damages against private persons who violate the constitutional rights of others is correctly read as applying only to racial discrimination and the right to interstate travel. The result is t~1e Bill of Rights cannot function either as a shield or as a sword with respect to private economic power.

I recognize that much of our national strength and diversity comes from the private sector. However, private, economically powerful entities can and do infringe with relative impunity upon due process, privacy, freedom of speech, and freedom from unreasonable searches and seizures. Unless state tort and contract remedies are available, individuals whose lives have been adversely affected by powerful private entities have no legal recourse.

I emphasize that the state action test should not be done away with or drastically expanded judicially . However, Congress could legislate under authority granted by the Commerce Clause to prevent the abuse of the Bill of Rights by powerful private entities. Alternatively, the Court should undertake a gradual, realistic and reasoned expansion of the scope of state action.

Freedom of Choice Finally, money is relevant to our control over our own lives. Much of our legal system is based on the concept of the free market, including the concepts of the willing seller and buyer, and hence, freedom of choice. Freedom of speech, for example, is thought to thrive in a marketplace of ideas. And the abortion decisions are best understood as vindicating freedom of choice. However, freedom of hoice is meaningful only when individuals have relatively equal bargaining power and can therefore make intelligent and uncoerced decisions. For this reason, in torts decisions, courts have carefully scrutinized defendants' claims of consent and assumption of risk; in commercial decisions, they have considered whether a contract

9

is one of adhesion; and in criminal cases, they have insisted that a waiver of rights be knowing and intelligent.

In contrast, the Supreme Court has not often favored freedom of choice for non-wealthy persons when governmental benefits are at stake. Thus, in effect the Court has held parents in poor school districts do not have the same choice of quality education for their childIen as parents in wealthy school districts. The Court has also held welfare recipients may be forced to admit caseworkers to their homes as a condition to receiving further benefits. These decisions are unwise because the Court did not realistically address the issue of freedom of choice. It cO'u ld have done so and still have limited its decisions to cases involving governmental benefits.

The problem of freedom of choice generally is far more difficult to handle judicially. For example, in response to arguments for a 1st amendment right of access to the media, the Court has held owners of the the relatively few publishing and broadcasting media need not open their pages and airwaves to those who do not own printing presses or studios. While this decision is partially based on a certain view of freedom of the press, to some extent it also reflects the Court's reluctance to change the economic status quo.

This reluctance is more clearly seen in the Court's refusal to recognize wealth as a suspect classification for equal protection purposes. There are several decisions - the "poll tax," "free transcript,' and "free lawyer" cases - which seem LO indicate that classifications based on wealth are suspect and hence must be justified by both a compelling state interest and necessity in order to survive an equal protection challenge. However these cases in reality deal with specific "fundamental rights" relating to voting and the criminal appellate process. No Supreme Court decision has held that wealth, tanding alone, is a suspect class i-

10

fica&ion which triggers "strict scrutiny" under the equal protection clause.

The Court.'s reluctance to maximize fre dom of choice probably stems from Lhe perception of it as a legislative concern whose solution ultimately requires a redistribution of wealth. Consequently. it is fairer to characterize the Court's approach ac; properly deriving from its view of its own role, rather than deriving from a bias favoring the status quo. In any event, we will probably never read a Supreme Court deci ion which upbolds a constitutional right Lo a minimum income, or to a job, or to hou ing.

In contrast, when the government intervenes in the free market, as in education or welfare, the Court should condition such intervention on fair treatment of persons similarly situated, regardless of walth. Tt should not simply say, as it did in Dandridge v. Williams, that "[i] n the area of economics and social welfare, a state does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect."

Conclusion We need much more empirical knowledge to ensure greater compliance with the B.ill of Rights.

Are money and economic power generally as significant as my discussion indicates? To what extent does use of the Bill of Rights as a shield and as a sword encourage governmental compliance with its provisions? Are there mor effective and efficient way than litigation to handle Lhe problem of compliance with the Bill of Rights? Should we perhaps 'bribe" our officials, in the Skinnerian sense, to comply with the Bill of Rights, rather than threatening them with damages for noncompliance?

For the time being, as lawyers, we will have to be content with becoming more knowledgeable about the potential of the Bill of Rights as a sword.

For this and other reasons, "constitutional" torts are introduced in the first year Torts course at Duquesne. Future lawyers must see the Bill of Rights as relevant to their pI路actice. If they do not, Lhe Bill of Rights will not work. It will simply atrophy.

Updating The Constitution

by Bob Williams

"The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to the constitution, or, on the application of the Legislatures of two-thirds of the several states shall call a convention .. ... " Anticipating the necessity for changes in the Constitution, the Founding Father adopted the above provision at the First Constitutional Convention in 1789. Despite this clear mandate for change, nearly two hundred years have passed with little alteration in our basic form of government. Indeed, challenging the constitution is considered political heresy; nevertheless, the possibility of challenge must be examined.

The United State has the oldest written Constitution in the modern world. It was formulated by fifty-five delegates attending a convention in Philadelphia during the summer of 1787 . All the colonies except Rhode Island, which refused to participate, were represented . Although many of the delegates were learned men, the longevity of this aged document is attributable not to their wisdom, but to the adoption of amendments. Even with these amendments, many political experts feel the Constitution should be either rewritten or drastically changed in order to form a more perfect Union, establish justice and insure domestic tranquility .. ."

PROBLEMS WITIDN OUR CONSTITUTION Not to question the signifi ance of a revered document such as the United States Con titution is asy and perhaps popular. Why should we challenge those statements which form he basis of our democratic system of government? A simple answer is the Constitution may not adequately reflect two hundred years of domestic and international transition. An outright refusal to xamine the constitution is unwise because it eliminates any possibility for impl"Ovement. Politi al analy ts can point to many examples of outdated governmental in -titutions which permeate our political system.

Perhaps we have reached the elastic limits of the original document. Its ambiguous nature, while allowing for flexible change, has failed to adequately answer critical constitutional problems and to rid itself of deadwood institutions.

THE PROBLEMS OF THE PRESIDENCY No man on earth commands as much power or respect as the President of the United States. Few people realize that one individual can, upon his own initiative, cause the United States to enter a nuclear conflict. The Constitution mandates that the President, as commander-in-chief of our Armed Services, can and does possess such omnipotent power. Neither the Soviet Union nor China confers such powerful discretion upon a single individual.

Lord Acton once prophesied: "power tends to corrupt; absolute power corrupts absolutely." This country has recently experienced the practical proof of his prophesy. In the past decade, a President distorted the truth about a "foreign involvement" which cost the lives of thousands upon thousands of Americans. Ugly rumors of political deals, which have allowed profits and power to accrue to a wealthy few, surround the Office of the President. A series of lawless acts - burglaries, wire-tappings, and obstruction of justice - have been propagated under the facade of "national security." Executive privilege and the ability to operate secretly have been used far too often to keep the public uninformed about the workings of government. Further, when the system revealed these abuses of power, that is, when President Nixon was forced to resign office for allegedly illegal conduct, his successor was constitutionally empowered with the authority to grant him a full pardon from criminal prosecution.

These realities demonstrate the vast and sometimes uncontrollable powers the Constitution allows a President to utilize. During a term of office, the threat of impeachment provides only a limited degree of a countability. Perhaps the time has come to ask if flaws in our Constitution have permitted excessive power to flow to the White House.

An evaluation of the powers of the Presidency leaves too many unanswered questions. Should impeachment be the only means to hold a President accountable for his actions? Should execu tive privilege be permitt d to thwart the Congressional right to know? hould a Pre ident be able to initiate a nuclear attack? Are other complex decisions thmst upon a President answerable by a single 11

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individual? Has the time arrived when om country can no longer function effectively under the traditional rule of president and vice-president? If the answers to these questions suggest a different role is necessary for t he execu tive branch of government, the n the sanctity of the Constitution should not prevent change.

OTHER PROBLEMS

t Theodore H. White's analysis of certain irregularities within t he Constitution notes grave unrest with the most sacred assumptions of the constitution. For example, many legal sch olars question the validity of the jury system . One need only view the present backlog of court cases, the abusive technique of plea-bargain ing, and the sorry state of our prison system to quickly comprehend why this ancient determiner of guilt or innocence is under fire . Another area subject to cri.tical scrutiny is the traditional process of American electi ons. The past presidential election campaign suggests a need for tighter policing of campaign fun ding and campaign practices. The abuses of the past have threatened the free vote of individual citize ns by allowing powerful politicians to decide the wi nners. Moreover, complete distrust is being registered by some against the entire structure Qf t he United States Governmen t. Are the federal bureaucracies of the 18th century appropriate for the problems of today and tomorrow?

If we are willi ng to accept the claim s of those who question the relevancy and effec tiveness of the Constitutio n , the next problem is to develop a viable alternative to effect change .

STATE CONVENTIONS Statue of Minuteman at Lexington , Massachusetts

T HE SUPREME COURT

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The problems in the scope of power within the Presidency are not the only qu estionable aspects found within our Constitution. Recent Supreme Court decisio ns , based lIpon the dictates of the fourteen th amendment, have aroused much scholarly and unscholarly discussion concerning the role of the Supreme Court in the federal system . Some people argue that various amendments allow the Court the power to mandate social change which the individual justices feel best serve our society. In this manner, the Constitution permits nine Supreme Court Justices to replace the Congress and ultimately the people as the sovereign decision makers of legislative action. Furthermore, this legislative action comes from a non-elected group with extremely limited accountability .

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Article V of the Constitution allows th e states to call for a consLituLional co nvention for the purpose of amending the Constitution. If two- thirds of the states pass such a re soluti on t here would be a eonstitutional convention. In the 60's, the late Senator Everett Dirksen of Illinois urged the states t o summon a constituti onal co nventio n. At t hat time, a major goal was th e adoptio n of an amendment to overturn the Supreme Court's decision alling for one-man, one-vote. By mid-1969, a total of thirty-three states had passed resolutions calling for such a convention - one short of the two-thirds necessary .

Whether a constitutional convention would be beneficial is o pen to much debate. The convention method of am ending, which bypasses Congress, has never been used. Obviously , Illinois and th irty-two other states felt it was a good way of all owing the states to determine current law. Morton Muntz , a noted political analys t, sees the power of the bureaucractic system strangling citizens and the constitutional convention as a remedy for the situation . Mr. Muntz advocates, at the least, a mock constitutional convention because it would hopefully serve an educational fun ction.

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This plan has its opponents. Theodore Sorenson, former Special Counsel to Presidents Kennedy and Johnson, cites three very strong arguments against the convention route. First, the process is dominated by the state legislators who would bypass the Congress and select the delegate . The Congress, however, would bear the brunt of any changes adopted by state delegates. Neither delegates to a convention nor the state legislators who would ratify the convention's proposals have the same knowledge of or re ponsibility for solving federal problems as does the Congress. Second, any amendment adopted by the Congress requires approval by legislators who represent roughly 60% of th e population. This method is in sharp contrast to the conventio n option which permits minority rule . That is, thirty -four states representing 30% of the popUlation could call a convention; twenty-six states representing 16% of the population could propose new amendment ; and thirty-eight states representing less than 40% of the population could ratify them . Third, Mr. Sorenson believes a constitutional convention would only be a reaction to recent extensions of civil liberties and would leave the country in a chaotic state.

Presidents Truman, Eisenhower and Kennedy

THE REVISION COMMISSION

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Nor is the process of Congressional amendment a readily adaptable solution to present problems.

Prior amendments (excepting the 21st) dealt primarily with the creation or definition of new laws. What is presently needed is an examination of the entire structure of the Constitution and the form of government which flourishes under it.

Realistically, Congress is not the place for such a task. Too many personalities and too many different interests will create too great a tension to be o v erc ome by skillful political craftsmanship .

Remember, it took fifty-five men an entire summer to write the Constitution as it now reads. The probability of the House of Representatives and the Senate accomplishing an effective examination of this document within the two years before personnel changes is negligible.

T his examination reveals that the very procedures provided for changing the Constitution are ill-equipped to perform their functions. A statewide constitutional convention nms the risk of deteriorating into a platform selfishly favoring local interests and desires. Piecemeal Congressional amendments would be too time consuming.

Further, the number of Representatives and Senators is too large to allow the type of reexamination today's problems require .

Although most states utilize the convention method for state constitutional change, an approach employed by a minority of states may provide an acceptable alternative for examining the federal Constitution . The alternatives used by these states are Constitutional Revision Commissions.

These Commissions have two distinct forms . Under one approach, the Commission studies the need for constitutional reform and recommends any needed change to a constitutional convention. The second approach allows far greater authority to the Commission. This form has the obligation of working with a convention but it also has the power to amend or revise a constitution .

The second alternative, which gives more power to the Commission, is best suited for today's needs.

Necessary Constitutional reform is too unique, too critical, and too complex to be adequately handled by a convention or to be debated in Congress. A small Commission is better equipped to study, debate, and resolve even the most complex que tions.

Various weaknesses, however, are inherent in the commission approach . Certainly, the easiest course of action for problem solving is to authorize a committee or commission to study the situation. New jobs are created and the public is soundly convinced that the rusty wheels of progress and change will soon be thoroughly lubricated by the commission's recommendations. This rarely happens. These commissions typically die slow and anonymous deaths. To change this frequent result, the Revision Commission must be given sufficient authority to make its members realize that their actions will indeed have an effect upon future government.

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If the Commission option is chosen, the selection of iis members be omes a major problem .

The simplest method would allow election by the President subject to Congressional approval. The difficulty arises when a President of one party selects constitutional commissioners who must be approved by a Congress controlled by another party. This is only one example of our system's built-in ban-iers which defend against the unwelcome enemy - change. But, if const ructive change is to occur, these barriers must be conquered and a non-partisan treatment of the problem must occur.

The initial advantages of a Commission's independent power does, however, create a corresponding problem. The teachings of democratic process require that any change, alteration or rewriting of the Constitution is subject to ultimate review by the people. The people must "ordain and establish" the final document. The failure of this method to allow e tablishment by the people is a severe disadvantage. If the independent Revision Commission is to be an acceptable vehicle for effective change, a method allowing for popular approval must be fashioned .

CONCLUSION Time and ircumstances hav reached the point where constructive Constitutional change is necessary. OUT vast and diverse society can no longer be effectively governed by a document whose original purpose was to offer a form of government for thirteen colonies. Loosely defined terms of power concerning the roles of certain public officials hav resulted in governmental policies not favored by the majority of the people. The pre ent system of government is not as responsive to the needs of the democratic process as the Founding Fathers had envisioned . The centralization of power has diminished the voice of the people.

We have, however, been peacefully and prosperously governed by the dictates of the Constitution. Perhaps, the basic principles within that document still provide a realistic foundation to govern a democratic society. Certainly, a change-forchange-sake attitude is not the correct impetus for meaningful improvement - the change must come as a response to a genuine need.

This writing has tried to demonstrate that certain areas of government - areas we view as sacred because they are Constitutional creationsneed to be questioned. The Constitution does not have to be discarded and a new one adopted. It must be modified to reflect those changes which have taken place within our society. We are no longer a country of ihousands - we are a nation of millions. Positions of power must be better defined; archaic practices of government must be abandoned; and, new ideas which reflect the needs of a modern democracy must be incorporated 14 into the Constitution.

tI

Spirit of '76

by Carol A. Porell

Plans for celebrating the 1976 Bicentennial are being made in cities across Lhe nation. Events are not being limited to museum exhibilions and historical building restorations but include gala celebralions, conc rts, and various happenings lo interesl everyone. There will be ethnic festivals with gourmet specialties and folk dancing, symphonies written especially for the Bicentennial, cross country and regional bicycle tours, and enactments of 1776 events.

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Philadelphia, the setting for the FirsL and Second Continental Congresses and the Declaration of Independence, is appropriately a leading city in today's Bi路 centennial celebration. Under the coordination and direction of Philadelphia '76 Inc., the city has already begun celebrating with a number of events in the fall of 1974 to commemorale the First Continental Congress.

Those events included a re-enactment of the convening of the Congress and Olde City Sunday. an enormous street festival around Independence Hall .

The fall events of 1974 were the first of a series of programs which continue into 1975 and 1976. Phila路 delphia's next major series begins !.his spring with a commemoration of the Second Continental Congress. An ethnic festival on the Philadelphia Parkway on May 11 will be followed by activilies related to the Second Congre s up until Labor Day 1975.

In addition to traditional historical sites, a number of restorations will be opened during the next year, such as the Liberty Bell Pavilion housing the Liberty Bell and Franklin Court consisting of a museum and five houses owned by Benjamin Franklin. Other restorations include Graff House in which Thomas Jeff rson wrote the Declara路 tion of Independence, Old City Hall which was Lhe first home of the United States Supreme Court, and Old City Tavern where delegates to the Continental Congresses met for food, drink and discussion. The Tavern has been restored as a restaurant modeled after the revolutionary war period and will be providing services to visitors similar to those received by Continental Congress delegates.

An interesting change from lhe typical museum is the new Living History Center scheduled to open in 1976. The center's purpose is to illusLnte changes in American liCe over the past 200 years. Through exhibits which lise films and multi-media techniques, our history will be seen in a new, innovative manner.

The Philadelphia Orchestra, the Pennsylvania Ballet, and the Lyric and Grand Opera Companies have planned special Bicentennial programs. The Philadelphia Orchestra will perform compOSitions by Leonard Bernstein, Aaron Copland, and David Amram commemorating the historic occasion . The Lyric Opera will perform the Bicentennial Opera by Gian-Carlo Menotti.

Finally, sports' fans will be glad to be in Philadel phia during the Bicentennial. The All路Star Baseball game in Veterans Stadium, the NCAA Basketball Championsh ip, and other sport events are scheduled for the city.

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BOSTON Boston is another city with strong historical ties to the Revolution. Accordingly, Boston's celebration began in April, 1975 with re-enactments of Paul Revere's Ride and commemorations of the battles of Lexington and Concord.

Under the auspices of Boston 200, the city has as its theme "The City is the Exhibit." A major program reflecting this theme is "Neighborhoods on Display." Residents of twenty Boston neighborhoods are preparing exhibits in each community. Each exhibit will depict the history of their neighborhoods by employing memorabilia and artifacts from private collections.

Boston also wants visitors to get caught up in the historical atmosphere of the neighborhoods. To pOint out historical sites, 285 markers will be placed throughout the neighborhoods and along walking trails . Various trails are being mapped out to take visitors through a sequence of historical sites and will be completed in June, 1975. For example. the Black Heritage Trail will Lead visitors to the African Meeting House, which was built in 1806 and is one of the oldest black church buildings in the United States; the Abiel Smith School, which was one of Lhe earliest schools constructed from funds willed to Boston in 1834 for black public education; and the home of Lewis Hayden, who was one of two black Representatives elected to the Massachusetts Legislature in 1873.

To make the walking tours even more interesting, the Children's Museum of Boston has compiled a booklet called CITY GAMES. This booklet is a collection of games coordinated with the walking trails and neighborhoods and meant to be played while discovering Boston's heritage.

Three major xhibitions exemplifying three centuries of American Life are also opening this spring. "The Revolution: Where It All Began" is an eighteenth century exhibit and is located next to Faneui! Hall. The nineteenth century industrial revolution with its technological developments is displayed in 'The Grand Exposition of Progress and Invention : 19th Century Boston," which is located in the First Corps of Cadets Armory. For the twentieth century, the Prudential Pavilion holds 'Where Boston: Visions of the City," a multi-media presentation.

NEW YORK As the first capital of the United States, New York City's celebration plans for 1975-76 are being coordinated by the New York City Bicentennial Corporation. The 200th anniversary of the meeting of the New York Provincial Congress on May 22, 1975 has been designated as the first day of the celebration. Ceremonies in Lower Manhattan will begin the observance followed by various Bicentennial exhibitions opening throughout the city in the afternoon.

In addition to an open house at the Whitney Museum of American Art, a concert, "A Salute to American MUSiC," performed by the American Symphony Orchestra and a fireworks display in Central Park will comprise the evening's activities.

Many other festivities are scheduled throughout the Bicentennial until November, 1976 which marks the commemoration of the fall of Fort Washington. For instance, the New York City BaUet will perform "Birds of America" and the American Bicentennial Wing of the Metropolitan Museum of Art will open and exhibit an extensive collection of American Decorative Art. Of course, New York's historical sites, such as Federal Hall where Washington was inaugurated, will be open to visitors and wiLl provide the settings for commemorative events and re-enactments.

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Finally, a person may want to experience the Bicentennial atmosphere across the nation instead of visiting only one or two cities. The answer for him is to travel the first trans-continental bicycle trail or, for the less adventurous person, to take a regional bicycle tour, such as, the Kentucky Bluegrass Tour or the Colonial Virginia Bike Tour.

Bicentennial, Inc., a non-profit organization, is presently arranging the tours and is mapping out the Trans-American Bike Trai1. The organization is working with the American Youth Hostels, the Department of Transportation, the Department of Commerce, the American Revolution Bicentennial Administration, and state and local agencies to coordinate the bicycle tours wi th other Bicentennial programs and festivities.

This summer, one major trail will be opened with Missoula , Montana as the jumping off and finishing point.

The tours wiJl last eight to ten days and cover such areas as the Lewis and Clark Trail, the Lolo Pass, and the Clearwater and Nezperce National Forests.

For 1976, the Trans-American Bike Trail will include Oregon, Idaho, Wyoming, Colorado, Kansas, Missouri, Dlinois, Kentucky, West Virginia, and Virginia and \vil\ ross or parallel such trails as the Oregon Trail, the Continental Divide Trail, and the Chisholm Trail.

The Bicentennial events across the nation will be different, yet they will be celebrating the same historical heritage and values. This blend of variety and unity appropriateLy reOects the United States.

15

SBA

COMMENT The function of the Student Bar Association (SBA) i twofold: to improve the general quality of legal education within the law school and to act as the governing body of the students. In performing its functions, the SBA has the potential to be a powerful organization - powerful in the sense that it can effect change. In many cases, for example, administrations are reticent to alter their present educational fo rmat. When this format does not provide for the best inter sts of the students, the SBA must convince the adminjstration that a particular change is necessary . In September, the law faculLy implemented a clinical education program (Criminal Prosecution Clinic). For many months prior to this adoption, the SBA consistently presented to the faculty the necessi ty of supplementing classroom education . By doing so, the SBA created the correct atmosphere within the Law School for such an adoption.

For the Student Bar to function most effectively , it must have the faculty's cooperation. If the faculty views the SBA as a "club" rather than as the personification of th student body's feelings and ideas, a substantial probability exjsts that the needed cooperation will rarely occur.

Without cooperation, a poor academic atmosphere can result.

The faculty must view the policy and decisions of the students as derived from the logic and reason of postgraduate adults . To i~nore a student body comprised of adults from many diverse walks of Life is to ignore the potential of a multitude of positive energies and thoughts.

At Duqu sne, one way to conceptualize this view is with a new approach to the SBA Student-Faculty Committee. On these committees, both the faculty and students must have the capacity to decide pol icy. If both do not, or if one group has unilateral power, then the committees call easily become a device to placate the powerless party.

This past year, I believ d the SBA could best attain its goals by acting as a "stUdent rights" organization . By seeing student needs as the foremost priority, I attempted to channel the Student Bar into areas which ultimately and directly benefit students. Within the Law S hool, the SBA worked in areas of clinical education, curriculum changes, altemativ grading systems, disciplinary codes, studentfaculty relations, Orientation, and basic administration, i.e ., cheduling vacation lime and exam p riods. Also, for the first time, the SBA was very active nationally through its participation with the Law Student Dlvision of the A.B.A.; this participation added prestige and recognition to the Law School.

Within the University structure, the SBA challeng d every adverse, unilateral decision made by the University administration. The SBA expended a great amount of effort in fighting for summer school, better parking facilities, bet路 ier food service, better classrooms, better library hours, and better return on the tuition dollar; all of which effect Lhe overall academic atmosphere.

In some of its tasks , the SBA was quite successful; in others, it met with failure . When failure did result, it was always due to a lack of coop ration between the University administration , the Law School faculty, and the SBA. With out the joint efforts of Lhese factions, our Law School will never reach its full potential. For no maller how effecliv ly each group operates alone, nothing positive ever occurs until there is cooperation. And, this cooperation mlLc;t benefit the stUdent - for the primary purpose of a university's exjstence is the education of its students.

DEANI NOTE

Over the past fiv years, we have added to an exjsting sound faculty, new faculty members of great accomplishment and great promise. New courses and new programs were adopted and implemenLed by the faculty . We have done this \vith a commitment to academic honesty. In 1970, the war was going on in Vietnam, the campuses were in turmoil, and students were attacking the whole educational establishment's rei vancy to life. The response of many institutions, many universities and law school was to capitulate to student demands, to introduce into the curriculum band-aid courses with exotic names, and to adopt a grading system that no longer reOected accomplishment but admission.

Throughout the past five years, we at Duquesne have been under great pressure to adopt a new grading system so thaL everyone becomes a B average student. After all , aren't our students hurt when they apply for jobs? When we were subject to evaluation by the American Bar Association!

As ociation of American Law Schools, one of the evaluators who was rumself a dean said - at Duquesne a C is still a C. Thus, the integrity of our grading system is unquestioned. OUI graduates have left here to go to graduate programs allover the country with confidence that fi rst they would be admitted and secondly that they would perform. This has been accomplished while at the same time the grade point average at Duquesne has improved significantly. This reOects not a capi tulation to Lhe professors' responsibility to call them as they see them, but a reflection of the high caliber of Duquesne law students.

There has been great student pressure to adopt unworkable clinkal education programs under the guise of relevancy and to add band-aid and cosmetic courses. As the students well know, these efforts have been resisted at Duquesne. We have instituted new programs in clinical education. They have been small and experimental, but for the most part they have been succ ssful b cause they were firmly based. We have introduced new courses into Lhe curri ulum not to the extent thai we should or Lhat we will , but the courses have b en not band-ruds, not cosmetics, but courses which belong in a law school curriculum . For better or for worse , we as a faculty have the responsibility of giving to the students our best judgment of a legal education . I am confident we have done this.

StUdents know little of history and sometimes care less about Lhe future, but are concerned with what happens to them while they are here. We ,viII not necessarily be able to make their life a happy one while they are at Duquesne, but we as a faculty, and a an administration are absolutely and unequivocally committed to protecting the quality of their educaLion and the integrity of their degree. Ii is interesting to note that our sisLer law schools are coming back to a grading sysLem that one can trust and getting rid of the band-aid courses.

For me it has been an interesting, exhilarating, frus trating, but exciting five years. Duquesne Law School slands on the threshold of greater accomplishment, of greater standing within the legal community locally and nationally. There can be no question but that with the caliber of our student body and their performance at the Bar, with the expanding local and national reputation of our faculty, Duquesne is rapidly becoming one of the better law schools of this nation . I am proud to have had the opportunity to build on the foundation of my predecessors.

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Student Organizations

by Joe Grochmal

Providing students with a strictly legal orientation through cases, issues and holdi ngs is not the sole function of law school. Where the classroom leaves off, student organizations begin. Nine such organizations serve the law school by pro mo ti n g social interaction, political awareness, and academic challenge. Presented here is a brief look at these organizations, their activities and officers.

LAW REVIEW Th e Executive Editors (picture d below) for Volume 14 of the DUQUESNE LAW REVIEW have been chosen by the outgoing board.

An dy Roman - Editor-in-Chief Beth Troiano - Recent Decisions Editor Gerald Hutton - Exec. Comment Editor John Bates - Exec. Article Editor Dave Petersen - Exec. Managing Editor In addition , Article Editors Henry Chajet, Ray Jacko and Michael Reilly; Comment Editors Fred Brown and Rich DiBella; and Recent Decisio ns Editors Ron Cusano, Marge Krasi k, Steve Speece and Susan Wright were selected.

JURIS Tim O'Brien and Joe Gula recently turned over the pen and pad to the new editorial board.

David DeRose - Editor-in-Chief Jacqueline Mikula - Associate Editor Gregory Mitchell - Feature Editor David O'Boyle - Layout Editor Geary Burton - News Editor Peter Chapla - Alumni Editor ( ot pictured are Assistant Editors William Carroll , Steve Speece and William Stokan.)

Any students wishing Lo assist the Board should contact the JURIS office located on the sixth floor of Rockwell.

FRATERNITIES The law school currently has two, primarily social fraternities : Phi Alpha Delta and Della Theta Ph i. These fraternities seek to encourage student in teraction outside the classroom by periodically spons o r in g speaker's progra ms and social events. Officers of Phi Alpha Delta for the coming ye ar are : Chief Justice Rodney Baxter (2D), Vice-Justices Steve Sabra (2D) and Tom Schlegel (2D) , Secretary John Brosky (2D) , and Treasurer Steve McCloskey (2D). Delta Th eta Phi officers incl ude : Dean Vince Ven tomiller (3D), Day Vice Dean James Cronin (3E), Night Vice Dean John Banke (3E), Tribune Marlene Jackson (4E), and Clerk of Excheque r Mary Isabella (4E).

APPELLATE MOOT COURT BOARD The Appellate Moot Court Board wishes to congratulate all the final round participants for their outstanding performances. Individuals selec ted to receive the Order of the Barrister as well as serve as Board members for 1975-76 i nclu de: Mark McKinney, Gregory Dallas, David Schmitt, David Mattes, Charles Mannix, and James Irwin. Other persons selected to serve on the new Board include : Den nis Biondo, Thomas Bo wman, Thomas Butera, William CarrOll, Henry Chajet, George Entenman n , Es t ella Loar, John Quinn, Michael Reilly, and Patricia Whitmire.

TRIAL MOOT COURT David Baer (4E) and John Gibson (4E) are the recipients of the Shalom Trial Moot Court competition awards.

Dave and John represented Duquesne in the Gourley Cup Competition against the University of Pittsburgh , held April 14 and 15 at the United States Courthouse for the Western District of Pennsylvania.

DWLSA The Duquesne Women's Law Student Association has selected its officers for the coming year. Those elected were: Fran Frederick (2D), who will serve as In tern a tional Representative; Penny Jones (1D) , Secretary; and Marcia Webb, External Representative for Com路 munity Action and Affairs. The Association hopes to continue its teach-in project for the elderly through October 1975 and other community related activities. DWLSA also desires to continue to provide for a greater degree of participation for all students in the coming year.

BALSA The Black American Law Student Association has made plans to introduce incoming minority students to the " law school experience" this summer. The organization is presently headed by Ed Matthews (3D) and Dave Taylor (3D) .

BALSA will continue to provide for the particular needs of its members and the problem they face . The membership also hopes to have a greater involvement in activities in the law school and the Pittsburgh black community.

SBA Ou tgoi ng S BA president Harve Linder received a note of thanks and was presented the gavel from the SBA's newly elected officers. President-elect Tom Butera , pledges a new SBA of "reasonableness and moderation ."

(I. to r. ) Don Russo, Day Vice-President; Tom Butera, President; Pat Whitmire, Secretary ; Mike Sentance , Treasurer.

Bo b Ging, Night Vice-Preside nt is not pictured .

17

P.

From The Halls

by David DeRose

PROFESSOR NAHMOD Professor Sheldon Nahmod has been selected to participate in the Summer Institute for Law Professors on Law and Economics. The Institute is sponsored by the Center for Studies in Law and Economics of the University of Miami School of Law . Last summer Professor Nahmod re eived a stip nd from the ational Endowm nt for the Humanities to do research on the relationship between artisti ' expression a nd the first amendment.

MANKIEWICZ SB A Speakers Com mittee hosLed iLs first guest speaker Monday, February 24. Frank Mankiewicz, former press secretary to Robert Kennedy and campaign manager for Georg McGovern during their presidential campaigns, spoke in the Moot Court Room on the topic : ' Enemy of Nixon Politics." Discussing the Watergate affair, Mankiewicz pointed out that while Nixon's political organization was collapsing, the American legal system operated smoothly throughout the affair. He characterized Nixon's strategy as a public relations exercise that failed. The discussion ended with talk of the 1976 Presidential race, the future of the Democratic Party and the Eagleton incident.

ROBERT P. CASEY "Some Things Which Need to be Changed in Harrisburg" was the subject of Auditor General Robert P. Casey's address at the Law School on April 17 . Discussion centered on t!~e possibility of abolishing the General State Authority, public financing of election campaigns, the possibility of electing rather than appointing the Auditor General, and the problems associated with state management and investment of public funds.

:18

LABOR LAW DEBATE On March 13, the Duquesne Law R view sponsored a debate between R . Heath Larry, ViceChairman of the Board of Directors of U.S . Steel Corporation, and Bernard Kleinman, General Counsel of the United Steelworkers of America, entitled "Labor Demands and Inflation : Is Labor the Pursued or the Pursuer?" The debate centered on the effect of labor settlements on the conomy .

Issues 2 and 3 of Volume 1 3, Duquesne Law Review, contain articles by Larry and Kleinman supporting their contentions.

CITI ZENS CONFERENCE Harvey Linder, SBA President, acted as one of six conference reporters at the Pennsylvania Citizens' Conference on the Judiciary pre ented by the American Judicature Society in mid-February at Hershey, Pa. The purpose of the conference was to gauge the reaction of the Bar, the judiciary and lay people on merit-selection and merit-retention of judges, which is presently the subject of House Bill 400 .

Professor Kenneth L. Hirsch and his wife Carol also attended, representing the Women's League of Voters, Allegheny County .

LSD CONVE NTI ON The annual spring conference of the Third Circuit Law Student Division (LSD) of the A.B.A . was held in Baltimore on March 8 and 9. Topics for discllssion included prison reform and job placement.

Representing the Law School were Harve Linder, SBA PresidentCharles Mannix, LSD representative; and Fran Frederick, Debbie O'Dell and Marcia Webb, DWLSA representatives.

Charles Mannix was successful in his bid for the Governorship of the Third Circuit and will serve in

that capacity for the 1975-1976 academic year. Debbie 0 Dell replaces Mannix as the Law School's LSD representative.

SYMPOSIUM T he Symposium on Human Medical Experimentation, sponsored by the Law Review, was not only informative but quite provocative and controversial . The speakers, all of national prominence, addres ed the legal , medical and ethical considerations involved in the use of psychosurgery on an experimental and/or therapeutic basis. In particular, psychosurgery was discussed as a means of c o ntrolling violent activity stemming from non-sociological sources. Papers presented at the symposium will be printed in Volume 13, Issue 4 of the Law Review. Copies can be obtained by writing the Law Review Office or phoning 434-6297.

CLERKSHIPS To date, the following members of the graduating class have received judicial cler kships: Alan Br averman with Pennsylvania Supreme Court Justice Po meroy; VasiIis Katsafanas wit h Pennsylvania Supreme Court J ustice Manderino; William Cullen and John McLane, Jr. with Pennsylvania Supreme Court Justice Eagan ; David Borkovi.c with Third Circuit Judge Weiss; Janice Holder with Western District Court Judge Sorg; and J oseph Gula with Mercer County Common Pleas Court Judge Acker.

JOBS O n April 27 , SBA President Harve Linder, LSD Third Circuit Governor Charles Mannix, Law Review Recent Decisions Editor Janice Holder and Dean R onald Davenport appeared on Channel II 's " Rappin' ." The topic of discussion focused on job placement .

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ALTERNATIVES TO PRACTICING LAW

,-1976 lell rer ool's

PAT LIVINGSTON, l '55 The Pittsburgh Press Club is a seemingly strange place to interview a Duquesne Law School graduate, but for Pat Livingston, sports editor of the Pittsburgh Press, it is an appropriate one. Except for a four year stint in the Navy, Pat has '" been involved in the publi/ cizing and reporting of sports all his working life.

As Pat points out, the combination of sports and law is not unique. There are at least three sports announcers with legal backgrounds: A.B.C.'s Howard Cosell, the Yankees' Mel Allen, and the Pirates' Bob Prince. There are also several football players who are lawyers: Paul Martha and Charlie Bradshaw of the Steelers, Ed LeBaron and Vince Permuto of the Redskins, and the Dolphins' Nick Buoniconti.

Mr. Livingston's decision to enroll in Law School came about quite incidentally. Pat was working as a reporter for the Press and had many friends, including his brother, who were either law students or lawyers. They encouraged him to go to law school and he finally gave it a try. "After all, I had the time and if I didn't like it, I could always drop out."

He did not drop out. In fact, he enjoyed law school. It presented an academic challenge unknown to him in his undergraduate days. Property, Jurisprudence, and Constitutional Law were particularly fascinating. He fondly remembers Professors Joe Lewis ("He would scare the hell out of you by throwing books at the sleepers."), Len Levinson, and Gilbert Helwig. The intellectual stimulation of the Socratic method, study groups and the challenge of finals were enough to keep Pat in law school despite the high attrition rate in those years. Pat thinks so highly of his law school experience that every now and then he thinks of going back on a part-time basis.

Law school, however, was more than an intellectual game. Pat noticed a subtle change in his outlook. "Everything was no longer black or white, but many shades of grey." Since law is a discipline geared toward critical analysis and reasoning it cannot help but broaden an individual's point of view.

On a practical level, Pat feels that it has helped him eliminate unjust assumptions and even improve his talent as a writer. In short, the study of law is a personal asset whether you practice law or not.

In a period of time when law students are having problems finding law-related jobs, Mr. Livingston serves as a comforting model to students. He mentioned that at least three other members of his class are not practicing attorneys. It is his contention that the training one receives in law school will stand one in good stead not only in the law but also in life. It certainly has for Pat Livingston, class of 1955.

(K.S.M.)

MARTY REGAN, l '71

Having completed both his undergraduate and legal studies at Duquesne University, Marty Regan is what one would call a "pure bred alumnus." His concern for and involvement with Duquesne did not cease upon the completion of his academic career. Since graduating, he has continued to be an active supporter and fund raiser. His efforts have been acknowledged, for he is now the President of the Duquesne University Alumni Association.

In 1961 Mr. Regan completed his undergraduate studies and entered the business world. Six years later, he set out to achieve a goal which he "always wanted to do" - obtain a law degree. While working full time, he enrolled in the evening division of Duquesne's Law School. Upon reflection, Mr. Regan noted that the first year was the roughest and that with each succeeding year the studies became easier and his grades better. (Take heart first year students!)

Upon graduation Mr. Regan took the state bar exam and was admitted to the Bar. However, unlike many alumni, he did not elect to practice law. Instead he continued to pursue his business career and is presently a securities salesman for Merrill Lynch Pierce Fenner & Smith, Inc. In his every day work, Mr. Regan does not deal directly with the legal aspects of securities regulation. Nevertheless, he is convinced of the practical value of his legal education. Law school develops in the student not just the ability to think but the ability to think critically. And judging from his own experience, he believes that critical analysis is an essential asset in the business world.

As for advice to law students, Mr. Regan strongly emphasizes the need to develop a proficient skill in the art of research. He advocates that each semester every law student should be involved in research, either individually or as part of a team.

In his experience with Duquesne alumni, Mr. Regan has found that graduates of the law school tend to form a more cohesive group than alumni from other schools within the University. He attributes this to the fact that many law graduates remain in the area and, as a result, come in contact with one another on a regular basis. Consequently, they build up more of a rapport among themselves and are a closer knit group.

As President of the Alumni Association, Mr. Regan is concerned about the general welfare of the University as a whole. At the same time he is also interested in meeting the special needs of the various alumni groups which compose an important part of the University. Such a combination of concern and interest is indeed a rare and laudable trait. But then again, "pure bred" Duquesne alumni, like Marty Regan, are pretty rare (D.O'B.) as well.

19

ALUMNI RECORD Marcella R. McNanamy, L '29, was honored as the 1975 Outstanding Law Alumnus at the 24th annual reunion dinner held April 29. The dinner, sponsored by the Law Alumni Association, also honored the graduating classes of 1950 (25th reunion), 1935 (40th reunion), and 1925 (50th reunion). Main speaker at the event was the Honorable William F. Cercone of the Superior Court of Pennsylvania.

This year's Dinner Chairman was Peter J . King, L '63. Dianne Faber, L '71, was in charge of tickets and Sanford Gross, L '72, was Publicity Chairman.

Ralph Davies, L '69, heads the Law Alumni Association.

***** P. Louis DeRose, L ' 40, has been appointed Westmoreland County's first Court Administrator.

DeRose is the father of P. Louis DeRose III, L '70, who is currently a partner with the firm of Scales & Shaw, Greensburg, Pa., and David DeRose, a second year day student at Duquesne who was recently elected Juris Editor-in-Chief for the coming year.

The eloer DeRose is a partner with Irving Green, L '52, in Greensburg. In his new position, he will be working closely with Westmoreland Common Pleas Court judges including Earl Keirn, L '43.

*****

Robert M. Brown, L '58, recently spoke on the role of alumni and students at Duquesne. The speech was part of a panel discussion entitled "Duquesne Studies Its Educational Philosophy."

The discussion was convened by University President Rev. Henry McAnulty in preparation for next year's University accreditation evaluation.

Brown is part of the Pittsburgh law firm of Ruffin, Hazlett, Perry and Lonergan where he specializes in public law. He has been involved in numerous P.A.T. cases concerning the proposed Skybus.

In his presentation on the role of alumni in the university, he described alumni as "the visible evidence of the success of the university in meeting its goals .. . The University likes to think that the achievements of its alumni are,. to some extent, its achievements ... A Duquesne graduate is someone special to the University and it wants to be a part of that person's life after graduation. As the student learned from the University during undergraduate days, so may the University learn from the alumni and take advantage of the many talents which its members have to offer."

"Duquesne also realizes that, just as the honors bestowed on its graduates redound to its glory, so does the success of the University reflect upon its alumni. Accordingly, the University recognizes that the obligation to maintain high standards and to offer unique educational opportunities is one owed not only to the students, present and prospective, but also to the alumni wherever situate."

"There is a tendency today, in some quarters, to value alumni in proportion to the degree of financial support which they provide to the University. There is no doubt that financial support is important and that the funds received through the generosity of its alumni are critical for most universities. As important, however, are those other forms of support which alumni and University can give each other through the maintenance of close ties and the exchange of ideas and efforts on each

other's behalf. Duquesne is committed to this kind of relationship with its alumni."

Brown is currently a part-time graduate Theology student in addition to being an active alumnus, member of the University Alumni Association Board of Governors, and a prominent attorney.

*****

Mark Silver, L '71, has recently been named Central Region Chief for the Pennsylvania Department of Transportation. According to Lawrence Weider, L '72, who notified us of the promotion, "As an Assistant Attorney General, Mr. Silver is now in command of a substantial number of trial lawyers who try condemnation cases throughout the central Pennsylvania area. The area encompasses 36 counties and five engineering districts. It also is of import that never in the history of the Department has a man so young held such an important position." Weider reports that he is currently a trial attorney with the state Attorney General's office in Harrisburg.

*****

Ross Weiss, L '72, has recently opened new offices in Elkins Park, Pennsylvania with the firm of Bank, Shor, Levin, and Weiss. The Philadelphia native also has offices in Norristown, where he has served as Montgomery County Assistant District Attorney for the past 15 months, following his clerkship with Chief Justice Benjamin Jones of the Pennsylvania State Supreme Court.

Weiss also reported on the activities of other alumni as follows : Richard Linderman, L '73, is a Public Defender in Montgomery County in addition to his Pottstown practice; James Miller, L '72, is with the Pittsburgh firm of Dickie, McCamey, and Chilcote; Charles Fonzone, L '72, is practicing in Allentown; and Marty Sobel, L '73, is with the Department of Labor in Philadelphia.

'" * '" *......;.*------~----, Commencement exercises will be held on unday, June 8,1975, at 11:00 A.M. in the Ballroom of the Duquesne University Student Union. Reverend Henry J. McAnulty, President of the University, will present degrees to 7 February and 173 June graduates. Immediately following the ceremony, a reception for the new graduates and their guests will be held on the 5th floor of the Student Union.

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