Juris Magazine- October, 1979

October 1979

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Editor's Note The 1979-1980 law school term at Duquesne promises to be interesting and exciting. Juris magazine will endeavor to cover the events that will shape the law school's future in the decade of the 80's, while continuing to provide provocative articles on the current topics facing our legal community.

In the past, Juris has concentrated on theme-oriented issues. Volume 14 will break this tradition and seek to cover a wider variety of topics, hopefully of greater general interest. This year we also hope to provide a greater opportunity for Duquesne law students to demonstrate their writing talents by contributing publishable articles.

In view of this goal, I recently requested Milton J. Shapp, former Governor of Pennsylvania, to write an article for Juris recounting some of his personal experiences dealing with the Mellon Bank of Pittsburgh which had legal and political implications. Governor Shapp submitted an article in plenty of time to be published in this issue of Juris, but unfortunately, Duquesne University officials have ordered me not to print it because of a possible law suit unless elaborate proof is provided for each statement contained in the article.

Since officially the university serves as publisher of Juris, I had no alternative but to accede to their demands, though I believe their order constitutes a violation of the spirit of the constitutional freedoms of free speech and press which my law school education has taught me to admire. In view of this action, it seems appropriate to indicate that Governor Shapp had advised me that he will send a copy of this article to anyone writing to him cloP .0. Box 404, Narbreth, Pennsylvania 19072. In my opinion, the article is both interesting and informative.

Juris has a circulation of nearly 5,000. Copies of our magazine are received throughout the country by Duquesne alumni, law libraries, judicial chambers and others. In fact, we now distribute copies abroad! Juris truly provides a great opportunity for our students to indicate the talent and ability representative of Duquesne La..y School.

I would like to extend an invitation to all Duquesne Law students and alumni to contribute articles, comments or suggestions for the upcoming issues. Your contributions along with the efforts of the Juris Staff, promise to produce an even better Juris publication this year.

It is interesting to note that Juris does not provide academic credits for participation, nor any sort of remuneration for the time and effort contributed.

Those involved in Juris have always become involved because of a genuine interest in the magazine without any other inducement being necessary. This speaks well for all who contribute time and effort, and is not lost on those members of the legal community considering Duquesne graduates for employment.

Juris will in the months ahead, continue to provide you with interesting reading, thoughtful comment on law-related topics, and matters of general interest to the legal community. With your support, Juris will remain a publication of which we can all be proud.

~~o~ Editor-In-Chief

l HE DUQUESNElAWSCHOOI .NEWS.MAGAZlNE

VOL XIV No.1 -

Fall 1979

Editor-in-Chiej Barry K. Cosey

Associate Editors Verlee Prybyloski Theresa Homisak William McCabe

Assistant Editors Michael Calabro Paul Porell William Price Gino F. Peluso

Faculty Advisor John J. Sciullo

Photography William Price Paul Porell

II/ustration Paul Porell

Staff Members: John Eddy, Dave Laurent, C.J. Manoli, Richard Joyce, John Brazzo, Judy Mackarey, Richard Fidei, Michael Relich, Marsha Heister, Jerry McDevitt, Joe Covelli, Paul Giba, Judy Himmelhoch, Dave Flowers.

JURIS is a student publication of the Duquesne University School of Law .

Views and opinions expressed are not necessarily those of JURIS or Duquesne University. All manuscripts and comments may be addressed to JURIS, Duquesne University School of Law, 600 Forbes A venue, Pittsburgh, Pennsylvania 15219.

Telephone (412) 434-6305 Copyright 1979 Duquesne University

In this issue

3

REGENTS v . BAKKE: AN ETHICAL ANALYSIS BY WALTER WIEST ORIENTATION

6 ANTITRUST

8

2

PLUS A PROFILE OF ADJUNCT PROFESSOR TOM KERR

THE SOCRATIC METHOD: GREEK MYTH OR THE WAY TO LAWYERLY THINKING?

11 13 ORGANIZA TIONS 14 LEGAL GEMS

16

DECISIONS

17

FOOTNOTES

18

RECENT LAW SCHOOL CONTROVERSIES - GAINING A PERSPECTIVE ON SOME CHAOTIC ISSUES

Regents v. Bakke: An Ethical Analysis T

he relationship between law and ethics is a matter of complexity and continuing dispute. The points of view range from those who assert that laws are not valid unless ethically justifiable (Aquinas: "An unjust law is not a law. ") to the positivists who seem, at least in some statements to separate law and morality entirely (Austin: "The existence of law is one thing; its merit or demerit is another ... A law, which actually exists, is a law, though we happen to dislike it. ") I Actually, not even the positivists mean to deny that morality and law overlap at some points, especially in the functions of legislatures. There is a serious dispute, however, about whether there is a place for ethical judgment in judicial decisions.

Since it is not possible in a brief article to survey the whole range of issues involved in the interrelations of law and ethics, the purpose here is to take a particular recent instance, the Bakke case, and try to show how ethical and legal considerations interplay in this one case. Bakke is important, ethically as well as legally, since it has to do with the problem of racial discrimination. I t is also a case in which some legal authorities might think it proper. to introduce ethical considerations in reaching a decision.

Justice Cardozo was one who argued that, while most cases can be judged on the basis of law as such, there are some cases in which gaps or interstices appear which are not covered by any obvious or indisputable application of the law.' In such cases, he urged, courts may, and indeed should, introduce other sorts of considerations, including ethical ones.)

He was careful to say that a judge was 'Austin , John, The Province oj Jurisprudence Determined, New York , Noonday Press, 1954, P. 185 : quoted in Stumpf, S. Morality and the Law, Nashville, Tenn, Vanderbilt University Press, 1966, p. 90. lO ne thinks also of H.L.A. Hart's reference to cases in which there is a penumbra: of uncertainty or ambiguity. Cf. The Concept oj Law, London, Oxford University Press, 1961. ' See, E.G. The Nature oj the Judicial Process, Yale University Press, '1921; thirteenth printing. 1971.

by Walter Wiest not to impose his own personal ethical views, but rather to try to bring to bear the best ethical standards of the society at the time. He admitted that identifying these standards is not easy, but held that the task is not insuperable. 4 â&#x20AC;˘ These reflections might well be applied to Bakke. There was no single interpretation of the law which was clearly dominant in the Court. Three justices concurred with the Stevens opinion and three with that of Justice Brennan (though with some dissent in each group). This gave the deciding vote to Justice Powell, whose opinion agreed in some respects with one side and in some with the other, and in still other respects was uniquely his own. It would appear that in this case

Black pupils being read the county school board's letter barring them from the classroom.

there are interstices. Can it be argued that in such a case, added weight might be given to an interpretation which is ethically justifiable as well as legally defensible?

With a view to promoting discussion between lawyers and ethicists, I 'R.M. Dworkin has argued that the principles which are called into play in such cases are themselves legal principles, not just ethical principles added to legal reasoning (though I take it he would not dellY that they may also be ethical.) However, he sees these principles as validated by appeal to a complex of interrelated principles, some at least of which are also ethical. Cf. "Is Law a System of Rules?" reprinted in The Philosphy oj Law, ed. R. M. Dworkin, London, Oxford University Press, 1977.

propose to set aside the final decision for the moment and examine the opinions in the case, asking whether certain ethical distinctions could have made a difference in that decision, and whether it might have been legitimate to introduce them in the decision making process. It must be admitted that all three opinions purport to be interpretations of the law as law. Nevertheless, there are ethically significant differences among them, and the first of these appears in their differing views of the original intention of the legislators who passed the Civil Rights Act of 1964, with special reference to Title VI, and reference also to Title VII.' The Stevens opinion, while maintaining that the point at issue was only the University's admissions decision on one individual and not "whether race can ever be used as a factor in an admission decision," nevertheless understands the intent of the legislation to be that institutions receiving federal financing should adopt policies which are "color blind," and cites statements from the legislative debate over the Civil Rights bill as evidence. The policy of the Medical School at the University of California at Davis, which reserved 16 percent of admissions for members of minority groups, is therefore judged to be a violation, and it is asserted that Bakke, whose qualifications were better by the general standards than those of some minority persons admitted under the special quota, was denied admission because of his race. "Race cannot be the basis of excluding anyone from participation In a federally financed program."

The Brennan opinion holds that the intention of Congress was not to pass legislation for the equal protection of ' Justice Powell states that the Court did not attempt to interpret the Civil Rights Act as such, and concerned itself only with applying the Equal Protection Clause to the Bakke case.

Nevertheless, the Brennan and Stevens opinions enter into debate over the intention of Congress in that legislation. Thus, it seems fa ir to bring such matter into this discussion.

3

whites and minorities, but to do something to correct injustices done to minorities. The aim was specifically to encourage voluntary remedial programs, not excluding racial quotas. Although Justice Powell appeals directly to the fourteenth amendment and its judicial interpretations rather than to the Civil Rights Act, he agrees with Justice Brennan that race can be taken into account in an admissions program. He finds with Justice Stevens, however, that all groups are equally protected under the law and that the Davis quota resulted in a violation of Bakke's rights.

The Brennan view allows more room to consider the problem of racial justice in society. It understands the legislation, under the Equal Protection Clause, as properly aimed at remedying the effects of past societal discrimination. At Davis, there was substantial and chronic underrepresentation of minorities in the student body, and those in authority there could reasonably conclude that this was due to the social situation. The admissions policy was a justifiable effort to remedy those effects.

By contrast, Justice Stevens does not accept this argument at all. He focuses entirely upon Bakke's rights as an individual and does not see 路his exclusion under the quota policy as justifiable on the basis of the aim of remedying social injustice. Justice Powell holds that societal discrimination is far too slippery a basis for interpreting Constitutional principles.

He does say that a compelling interest may exist in this sort of situation, but only where there is evidence of previous discrimination by a particular institution . The rights of individuals must then be protected. Government has a compelling interest in preferring members of the injured group-a minority group injured by the practice, and providing a remedy - even when this may have to be done at some unavoidable expense to the rights of others. But no one has charged that such discrimination occurred at Davis. Moreover, every individual, of whatever group, is entitled to protection against racial/ethnic classification, and quotas are "discrimination for its own sake." They cannot be justified as a remedy for a general social situation against this. Justice Brennan maintains that it is not nec4

essary to show previous discrimination by the particular institution, nor to have a "case by case" determination of discrimination against individuals; further , a quota can be acceptable as an attempt to remedy social injustice, despite "incidental injuries" to persons like Bakke.

No doubt it will be no surprise to find an ethicist favoring the Brennan opinion because it takes an issue of social justice directly into account, though in the form of a legal argument. Lest this seem mere prejudice, it can be shown that there is some support for such a view in the thinking of some authorities on laws. To be fair,

Civil rights leader James Meredith lies shot alter being ambushed during his march to Jackson, Mississippi.

one must share Justice Powell's concern about protecting the objectivity and fairness of judicial decisions by basing them upon constitutional principles that are steadier and more nearly "absolute" than any which are dependent upon "shifting political and social judgments." But Joseph L. Sax had something pertinent to say about this in an article written some time ago. 6 He suggested that his fellow lawyers are sometimes inclined to hide behind "that supposedly value-free facade, 'the Law'." He argued that there are interstices meaning areas of judicial and prosecutorial discretion, in which "the law" per se provides no single, obvious decision , and where sometimes one ought to be guided by ethical judgment. "The greatest danger of all is that an excessive focusing upon the legality of situations tends to blind one to the obligation to make humane judgments." As Cardozo, Dworkin and others have pointed out, sometimes courts have found a legal / ethical principle on which to override the conclusions of a more strict and narrow "legal reasoning," where it was felt that the end result would be a greater measure of justice. They both refer, for example, to the famous ' Civil Disobedience: The Law is Never Blind," Saturday Revie w, September 28, 1968 .

Riggs v. Palmer case. 7 In that case, a murderer stood to profit from his crime by inheriting through his victim, and the court introduced the principle that no one should be permitted to take advantage of his own wrong, thus giving this principle priority over the narrower one of the validity of the will. The larger concerns of justice were judged more important than a strict interpretation of the law as law. Cardozo holds specifically that in a few cases at least, a concern for "social welfare," or for greater justice in society, may guide a judicial decision, along with the best ethical insights available in the society. At such points, he says, "logic and coherence and consistency" are "displaced" by an appeal to a larger sense of justice. Preference for a view which takes the aim of remedying a social injustice as legal justification for a policy has then some backing in legal reasoning and is not necessarily simply an imposition of ethical judgment upon the law.

This brings us to another point, which is both ethical and legal. One must acknowledge that the concern of Justice Stevens and Powell for any injustice done to a majority group person, such as Bakke, is also important, legally and ethically. Is it ever justifiable to violate the rights of some individuals as an unavoidable consequence of remedying wrongs to others? The reference of Justice Brennan to "incidental injuries" of this sort may well seem inadequate . At this point an ethicist is likely to be reminded, however, of the ethical principle, originally though not exclusively, of Roman Catholic ethics, of "double effect." This principle states that in some situations a certain amount of damage done to some per' Case C ite: 115N.Y . 506,22N . E. 188(1889) .

Prelude to violence: Demonstration.

a

Freedom

,. The Ku Klux Klan: protecting majority interests?

sons may be justifiable if the primary intention of the action is just. There are important qualifications: the just effect must indeed be the primary intention; the secondary effect must be unavoidable, and the secondary effect must not be used deliberately as the means to the just end. Further, the secondary effect must not be "disproportionate," that is, the concomitant evil must not be greater than the intended good. Justice Blackmun, in his OpInIOn, concurring with Justice Brennan, observes that since the number of qualified applicants to medical schools exceed the number of places available, many deserving persons will have to be denied. Given that situation, it is inevitable that any attempt to remedy underrepresentation of minorities will adversely effect some majority applicants.

One could interpret the Brennan opinion in terms of an implicit double effect argument. Under this reading, the primary intention of the Davis admissions program was just (remedying effects of societal discrimination,) the concomitant secondary effect upon Bakke was unavoidable but not intended, and was not disproportionate. The Powell opinion might be said to reject the argument in this form, but accept it in a narrower version, in cases where there is evidence of institutional discrimination, remedial policies may be acceptable despite possible adverse effects upon majority persons. Such effects are justified by the primary intention of defending the rights of minority individuals. The Stevens opinion seems to allow no room for this principle at all. It puts Bakke and minority group applicants on the same footing, and holds that "race cannot be the basis of excluding anyone from participa-

lion in a federally funded program."

The "double effect" idea would seem to support Justice Brennan, and to some extent Justice Powell, against Justice Stevens.

This bring us to a third point, namely, what is meant by equal justice. In both ethics and law, it should be clear that justice does not always consist in meting out identical treatment to all parties. A tax of the same amount on all persons is not as "just" as a progressive, graduated tax based at least partly on varying abilities to pay. One remembers the remark of Anatole France, that the law in its majestic impartiality forbids rich and poor alike to sleep under bridges at night. In Justice Blackmun's words, "In order to treat some persons equally, we must treat them differently." Justice must sometimes be an equalizing justice. Justice Stevens in effect sets aside such considerations in this case.

Justice Powell wants to minimize the inequities involved in a racially conscious program. He proposes that race be taken into account in admissions policies of educational institutions by making it one factor among several, all justifiable on educational grounds. In addition to strictly "academic" grades and test scores, institutions have grounds for seeking geographical and racial distributions and looking for personal qualities such as maturity, leadership potential, work experience, ability to communicate with the poor, etc. Certain university programs now in effect are noted as models. This view has much to commend it. Each individual is judged on a combination of factors, and race does not become an exclusive category. It has the defect, however, that unless race or ethnicity becomes a decisive factor in a fair number of instances, underrepresentation of minorities may still not be remedied. Insofar as it does become decisive, some majority group applicants may well be excluded by the policy. The Brennan opInIOn goes farther in affirming an equalizing justice.

All this is not meant to imply that ethical judgments should be substituted for sound legal ones, or that a decision which might be thought to be ethically preferable is necessarily better as a legal judgment. The argument is simply that in a case in which legal opinion is seriously divided, and in

which several views are defensible, one can at least enter a plea that the view which gives more importance to the aim of remedying social injustice be given added weight on that account. Of course, in the Bakke case, this is hypothetical, since a decision has been rendered. But one suspects that there may well be more cases involving the same or similar issues, and courts have been known to change their thinking over a period of time; it is not unknown that they reverse themselves on occasion. It must also be acknowledged that lawyers may well prefer one opinion over another because it seems superior on grounds of legal reasoning or argument alone. It has also been granted that there are legitimate ethical concerns involved in all three of the Bakke opinions. No doubt many will judge that the "social welfare" is best served in the long run by having courts stay within the more narrow bounds set by Justice Powell, or by Justice Stevens. To debate that point would be beyond the limits of this essay. It can be noted, however, that if that argument is offered, it is a sort (continued on page 15)

Dr. Walter Wiest is a Professor of Religion at the Pittsburgh Theological Seminary, where he teaches courses in Theology and Ethics. An adjunct professor at the University of Pitsburgh, he has also taught undergraduate courses at Duquesne University, including participation in a seminar of ecumenics in which Professor Cornelius F. Murphy, Jr. of Duquesne Law School also participated. Dr. Wiest completed his undergraduate studies at Lafayette College, received his B.D. at the Princeton Seminary and his Ph.D. from Columbia University. Dr. Wiest currently resides in the Mt. Lebanon area of Pittsburgh.

5

FROM LEFT TO RIGHT: Dean Ronald R. Davenport; round table discussion with first year students; S.B.A. President John P. Fonzo; BELOW: students pause with refreshments at close of Orientation.

Orientation The new kids in town "Why did you choose Duquesne?"

"Where did you do your undergraduate work?" "What area of law is of particular interest to you?"

These questions were part of the profile questionnaire completed by members of the first year class at this year's Orientation. One hundred students graciously completed the questionnaire, 56 from the day division and 46 from the evening division. Their answers provide for the curious a unique insight into the classes of 1982 and 1983.

According to the responses we received, the average age of the first year day student is 23; of the night student, 28. The oldest day student is 30, the youngest 21; the oldest evening student is 41. the youngest 20.

Women comprise approximately one-fourth of the first year class.

75flJo of the day division class are single while half of the evening students are married. The married first year students are responsible for 31 children, including "one on the way. " Only 13flJo of the first year students are from hometowns outside of Pennsylvania. These foreigners hail from such places as Lynwood, California, Country Club Hills, Illinois, Stamford, Connecticut, and various points in New Jersey, New York, Ohio, and West Virginia. A significant number of students completed their undergraduate work at schools outside of Pennsylvania . Approximately 20flJo graduated from such schools as Long Island University, Georgetown, University of Colorado, Notre Dame.

6

Cornell. American University, Wisconsin and South East Oklahoma State, U.s.c., and Transylvania College. The average year of graduation was 1978 for day students and J972 for evening students.

The first year students who completed the questionnaire received an average LSA T score of 572 and earned an average final undergraduate QPA of 3.4; the average LSAT and QPA for evening students was 602 and 3.2 respectively.

While 88flJo of the evening students indicated that Duquesne was their first choice among the law schools to which they applied, only 38flJo of the day students chose Duquesne first.

Surprisingly, 50flJo of the day students and l8flJo of the evening students made the decision to attend Duquesne without first visiting the law school.

Nearly all of the day students were accepted at other law schools ; however, only l7flJo of the evening students were accepted elsewhere.

The legal profession is part of the family life of only a small number of first year students. Only seven students have parents who are attorneys and eighteen more have at-

torney brothers. sisters, and various in-laws .

More than half of the first year students indicate a desire to practice in Pittsburgh after graduation and the bar, and another 20flJo were certain only that they desired to remain in Pennsylvania to practice. Thirteen others expressed a desire to practice in various foreign jurisdictions including New York. California, Washington. Washington, D.C., Massachusetts, and Mexico.

The area of law of most interest to the first year class is corporate law, followed in order by criminal, labor, international, and environmental law . Although approximately onefifth are uncertain about an area of specialization. others expressed interest in such areas as communications, entertainment, and consumer rights .

Nearly all of the evening students and some day students who completed the questionnaire have been employed between college and law sc hool. The most unique of these employment experiences include free lance writing, the military, and work as a corrections officer, reporter, waiter, labor foreman. steel worker, auditor, engineer, and a heavy equipment operator. At least ten students attended graduate school during this time and one earned a Ph.D. Some extracurricular interests of the first year students include politics, crew. hockey, dancing, various racquet sports, gardening. horse racing, flying, and coaching little league sports.

UPPER LEFT: Professor John J. Sciullo: third year student Rich Schubert fields questions; ABOVE: second year student Jennifer Rabold; first year students react to discussion with upper classmen; BELOW: an expert demon路 strates how not to get ahead in law school; LEFT: keynote orientation speaker Judge Joseph F. Weis, Jr.

7

Antitrust Plus A profile of Adjunct Professor Tom Kerr nti-trust and Trade Regulation Law has been one of the more popular elective courses offered at the Duquesne Law School since its introduction in 1964. The elective's popularity is the result of the fortunate combination of the formidable professional experience as well as the humor and intelligence which Adjunct Professor Thomas M. Kerr brings with him into the classroom .

Professor Kerr was born in Weehawken, New Jersey, and received his A. B. degree from Lafayette College in 1940. After serving in World War II, he entered the George Washington University Law School, receiving his J.D. degree in 1950. He was admitted to the Bar of the District of Columbia in 1951, and worked for the Antitrust Division of the Department of Justice for several years. He is presently a member of the Allegheny County, Pennsylvania, Federal, and American Bar Associations.

Since coming to Pittsburgh to work for Westinghouse Electric Corporation, Professor Kerr has served as a full-time faculty member and Head of the Department of Administration and Management Science of the Graduate School of Industrial Administration (GSIA) at CarnegieMellon University, and teaches one course at the University of Pittsburgh in the School of Communications and Theatre Arts, as well as teaching the one course at the Duquesne Law School. He has served as Commissioner for the City of Pittsburgh Commission on Human Relations, and has been, and continues to be active in the American Civil Liberties Union. He is presently an attorney of counsel with the Pittsburgh firm of Titus & Marcus.

The following are gleanings from an interview which he generously granted to Juris Magazine.

A

"THE STUDY OF ECONOMICS GOT ME INTERESTED IN ANTItrust law - the study of the effect of monopoly, collusive and restrictive trade practices on price, quality and 8

service in the marketplace. After four years of economics in college, the interest in law came because that was the area for studying monopoly.

After the war, I was glad to have the opportunity to go to law school.

"Something I should never forget, and something every professor should never forget - I was privileged to have the dean of anti-trust, a professor named S. Chesterfield Cppenheim, at George Washington University Law School, whose text-book is still current. I did very well in the anti-trust course - I even got an "A" - and although it was a large class of sixty or seventy students,

-

" somehow he remembered and liked my work, and we got talking. I told him that I was very sincerely interested in that field, and he made it possible for me to work at the Department of Justice, Anti-trust Division, before I had finished my law degree. I was called an Economist, as I had done the undergraduate work in economics. When I got through with law school and passed the Bar, I just changed titles changed over to trial attorney and stayed with them. I actually prepared the economics on one case, and later tried it.

"When I say, professors ought to remember, I think that part of our role is recognizing somebody who should be given encouragement, and perhaps be told about an opening that the old guy knows about, and the young guy or young woman doesn't know about. Oppenheim helped me, and that was a proper role for a professor to play.

"Anti-trust is an interesting area,

because it encompasses criminal and civil and administrative law. You use all three areas.

"AT THE ANTI-TRUST DIVISION, we always insisted that we do our own investigation, our own grand jury, and our own trial. That meant that you knew the witnesses from the moment you found them, and were well-acquainted with them by the time you got to trial. I always felt it was one helluva lot more effective than having some case prepared by others handed to you to try. Off and on, I spent five years in Kansas City on one case. I stayed there eighteen months investigating the case and then had the grand jury. There followed a two year lapse, during which I left and worked on other cases, before returning to Kansas City for the trial. An average file load for an Anti-trust Division attorney would be six to eight cases per year.

"There are two areas in the Antitrust Division. There are the people in Washington who deal with relations with Congress and governmental administrative agencies, like the l.e.e. and the S.E.e. These people prepare testimony for legislation and advise the administrative agencies. The Anti-trust Division also has field offices, and that is the place to get trial experience. After I got out of law school, I asked to be moved to the Chicago field office - I wanted to get my feet wet - a field office was the place to do that.

"I WAS HIRED OUT OF THE ANTI-TRUST DIVISION BY Westinghouse Electric Corporation.

When I came, they wanted mainly compliance and representation with respect to the Federal Trade Commission for their Consumer Products Divisions, and I did that for them for five years. Then, another part of the company had participated in what became known as the Great Electrical Price Conspiracy, so I represented Westinghouse in the United States versus G.E. and Westinghouse cases, which began about 1960. These suits were both criminal and civil actions, and I stayed with the company until they were over.

"Following these cases, I had a very interesting experience. The Chairmen of the Board of Westinghouse, Mark Cresap, took the whole episode very seriously, as he, of

course, should have, and requested that an educational program be formulated for Westinghouse, so that their people would be conscious of the free enterprise system, and the nature of the participation of the corporation in the free market, so that illegalities would not ever inadvertently or advertently happen again. In order to do that, I went to a couple of friends of mine. One was Jack Coleman, head of the Economics Department at Carnegie-Mellon University, and he introduced me to Dean Lee Back of the graduate school out there. Together we created a program of executive education, myself doing the legal part, and them doing the economics and business management part. Then we taught it together.

"In the last ten years or so, while dealing primarily with anti-trust and related cases, I have had more and more of a general practice with Titus & Marcus.

"I FOUND THAT I ENJOYED TEACHING, AFTER THE EXPERience with the executive education program, and I began teaching out at the Carnegie-Mellon graduate school of business, which they call the Graduate School of Industrial Administration. I presently teach there on a full-time basis, fall and winter. In "round words," the courses I teach deal with the interrelationships between business and society business and government - so that's legal aspects: anti-trust, securities, labor, corporate law; and also what we might call in the law school "jurisprudence": the philosophy of law, ethics , social responsibility in business, and that sort of thing .

"Amazingly enough, many of those very bright people out there have never had a fundamental course in the structure of our legal system.

The question in many of their minds seems to be "How can I get around that?" It takes me a few weeks each year to convince them that that's not what we're teaching. We're after the same philosophy that came out of the Westinghouse experience: Why it is advantageous to recognize that these rules mean something to the enterprise and to the individual. The alternatives to free enterprise are available in the world, and I don't consider some of them anathema - for example, democratic socialism. I would have trouble with any system where

you did not have free speech, so I can't quite get along with the Russians . But, as long as you want the advantages of a free enterprise system here, the philosophy ought to be that you ought to practice it, rather than "How do I get around it?" or "How can I be the most clever guy here and get the extra nickel that everybody else doesn't get by going closer to the precipice?"

"Very few of these graduate students are that idealistic, but one of the occasional rewards of teaching, randomly occurring every year or so, is that somebody does pick it up and run with it very well. One of my exstudents at Carnegie-Mellon is now, at 30 or 31, a Commissioner of the Occupational Safety & Health Administration. He's an extremely able advocate of safety and health for

workers, and very proud of what he's doing.

"I've had fun at Duquesne. It's been my personal pleasure, more than once, to introduce a Duquesne student to the Third Circuit Court of Appeals as an entering member of the bar of that court, and then have them argue against me in that court, that very day. I have never been asked to teach any other course at the law school, and I could reafly only handle one per term, but there is one other possibility that I've thought about. At many other law schools, the material that we cover in one course is the subject of more than one course. One course is anti-trust, restrictive trade practices and monopolies, and the other course is called "Unfair Competition," and includes deceptive pricing, bait and switch, false advertising, and that sort of thing that you don't usually get into. I'd want to think about it a little more, but I sup-

pose one thing we could do would be to have the anti-trust course one semester and have the unfair competition course the other semester. There is an enormous rise in what you would call "Consumerism," and you could have a course in that.

"I WAS A COMMISSIONER FOR THE CITY OF PITTSBURGH Commission on Human Relations between 1963 and 1976. The Commission has fifteen volunteer Commissioners, appointed by the Mayor, and the purpose of the Commission is to enforce the City of Pittsburgh ordinance with respect to fair housing, equal employment and public accommodations . The Pittsburgh Commission is one of the oldest in the United States Human Relations history. It was founded by an ordinance long before the state commission, and the state commission is earlier than Title VII, which is 1964. The Pittsburgh ordinance was a structural model for a lot of other ordinances in the country, and eventually, for Title VII itself. When Title VII came along, we were veterans, and we told them how to do it, although we were not involved in any of the drafting of Title VII. "We re-drafted our ordinance several times. For instance, public accommodations and women were not in the first ordinance, and those amendments came along as awareness of those issues came along, as did the amendments which related to fair housing - for instance, rental property, and the "Mrs. Murphy" boarding house questions.

"The Commission's enforcement activities are brought into play when a complaint is lodged with the Commission. There is an investigation by the Commission staff and then a presentation of the matter in a private hearing, with one of the Commissioners presiding. The object of the private hearing is conciliation, but if conciliation is not possible, and there is probable cause to believe that a violation exists, then the Commission votes, at its monthly meeting, to hold a public hearing. This hearing follows administrative procedure, and takes place before a randomly-selected panel of three Commissioners. Either side has a right of appeal to the Court of Common Pleas, and up through the courts of Pennsylvania. One of the cases which arose while I was on

9

the Commission was the, I think, somewhat famous City of Pittsburgh v. Pittsburgh Press case, which went to the Supreme Court of the United States. In that case, we had a rare balance between two civil liberties, one being the right of women not to be discriminated against with respect to advertising for employment, and the other being the Press' attitude that the City of Pittsburgh should not intervene in the freedom of the press.

'CIVIL LIBERTIES WORK IS SORT OF A SIDE-LINE. I'VE always been involved with anti-trust as far as practice and professional interest. Anti-trust and civil liberties cases, seen together, illustrate an important point, and that is, that where people talk about due process rights, they are prone to think about VICIOUS, gun-toting, drug-dealing malcontents that you wouldn't want to have in your living room. In a criminal anti-trust prosecution, however, the most elegant, clean-cut, button-down vice president of a large industrial corporation finds that due process is available to also protect his interests. The basic civil libertarian point is that we have due process in order to protect the rights of everyone.

"Anti-trust practice still involves a great deal of the federal grand jury, and the federal grand jury is a constitutional right that has sometimes been misused. There are very few areas where you get into that in corporate or commercial practice, but in anti-trust practice, we've had lots of instances where important people's rights have had to be protected just as much as - I don't know anyone who's unimportant - but other people who are not liked, despised, and so forth.

"I have been, and remain active in litigating cases for the American Civil Liberties Union. These things come in the office randomly . Some high school principal says to the kids "You can't put that in the school paper." It's a public high school First Amendment Fourteenth Amendment problem. He shouldn't say that, but he doesn't know that, and we have cases like that all the time. I would say that there's one of those per month in western Pennsylvania, and they sometimes get litigated. When long hair was an issue with the high schools, we had long 10

hair cases.

"With respect to young lawyers, and even with respect to law students, the kind of agencies that do public interest work - Neighborhood Legal Services, the A.C.L.U., the pre-trial project with the American Friends Service Committee - these are excellent entries for young lawyers into experience. When they get out of law school, they may find that they can get a job with a law firm, but they won't be the lead lawyer on a case for a while . But if they go with one of these volunteer outfits at the same time that they go with a law firm, at the volunteer outfit, they are likely to get some interesting cases on the side, for which they don't get paid, but for which they get paid a great deal in experience and satisfaction.

"The Legal Committee of the A.C.L.U. meets once a month down at the Bar Association. We have lunch, and the cases that have arisen in the last month are discussed. We decide who will take them, who will go ahead with them on the appeal, and so forth . I've had people one year out of law school that took a case on their own, had a good time with it, and learned a lot. The "older people" - whatever that means - help them, and they get started. It's a good way to get experience.

"I consider it to be a professional duty, anyway. Lawyers are supposed to help folks who can't afford the help, or who don't understand the law. Doctors are supposed to fix up people with broken legs even if the guy has just shot President Lincoln, and so forth."

During the interview early in the summer, Professor Kerr also offered the following comments on the present gasoline shortage, and the independent dealers' shutdowns: "The independent gasoline dealer has been a subject of restrictive trade practice for many years . It has been the continuing question of the large supplier, who from time to time owns station outlets, and the small independent reseller, who must compete, from time to time, with the supplierowned stations. Every year since 1923 there have been cases, many of them Supreme Court cases, in which the underlying goal is to in some way or other preserve the independence of those separate businessmen. The gasoline pinches of 1973 and 1979 raised new questions of discrimina-

tion in treatment between the independents and the owned stations, and now, the government regulators are in on it, and the government is run by people who may not have ever run an independent gasoline station, and may not know the problems of the independents. In the process of allocating gasoline, it's easy for the government to say to the big oil company, "You've got one hundred stations. You're easy to talk to. Supposin' we give you gas. What'll you do? Stay open Sundays?" The guy says "Yes." The independents there's just not one hundred of them in one head, and they get overlooked.

So we're in a whole new phase of this - I don't want to say contlict - but this interface between the independent and the owned station is exacerbated by the gasoline shortage.

"Now basic to the philosophy of the independent dealer is our Jeffersonian idea that a lot of small businesses independently owned, create a people who feel more politically, democratically independent and free. In 1949, Mr. Justice Douglas said, "We don't want to become a nation of clerks who are just reporting to absentee owners." There is a certain amount of dignity in being an independent business person, rather than the manager for, let's say, Exxon. I see a great danger that some of the independents are going to get rubbed out.

"Now on the other side of the thing, I think that it's fairly clear that the Independents are close to violating the anti-trust laws. The defense to their alleged violation of these laws is their First Amendment right to express their grievance. One way to get the attention of the government is to close down. Now, whether it's protected by the First Amendment, or whether it's a clear Sherman Act violation, is somewhere in the balance.

"One thing these gas ')tation owners can do is what they did in Maryland, and what has been proposed in Pennsylvania. That is, have the state pass a law that the refiners of gasoline may not own retail outlets, so that we keep that free of vertical integration. The vertical integration may have some economic benefits, but it has economic costs, and it has political and democratic costs. " - Theresa Homisak

C.J.Manoli

John Eddy

The Sword of Socrates

Paper Chase

very law student who. enters a first year c1assro.o.m is aware o.r sho.uld be aware o.f the fact that upo.n entering that scho.o.l, he o.r she has made a tacit agreement to. do. battle with an astute pro.fesso.r who. is wielding a swo.rd kno.wn in the vernacular as the So.cratic metho.d. Use o.f the So.cratic metho.d in the law scho.o.l co.ntext is justified as fo.stering bo.th dedicatio.n to. the study o.f law and attentiveness to. details , traits that are abso.lutely essential to. success as a practicing attorney . Altho.ugh the viability o.f this argument stands unchallenged, I co.ntend that in many instances blind adherence to. the So.cratic metho.d as it is utilized in a law scho.o.l c1assro.o.m may impair rather than aid a student's develo.pment.

The scene is no.t unco.mmo.n . A student is "called o.ut" by the pro.fesso.r.

The student begins to. recite his brief.

He is interrupted and hit with a barrage o.f questio.ns. His co.nfidence is shaken. The co.mbinatio.n o.f fear and humility co.erces him to. surrender.

Ano.ther student vo.lunteers . Ano.ther barrage is fired. This student also. succumbs to. the to.ngue o.f the grand inquisito.r.

Has the student pro.fited fro.m this exchange? I hardly believe SQ .

Granted, this enco.unter wo.uld

E

(continued on page 12)

o.st o.f us who. are familiar with the televisio.n series, "The Paper Chase," are also. familiar with the immo.rtal wo.rds o.f Professo.r Kingsfield, in an address to. his first year Co.ntracts class, that "if yo.u survive, yo.u will leave here thinking like a lawyer." This statement is mo.re than a mere tauto.lo.gy; it is the keyno.te o.f a philo.so.phy o.f what law scho.o.l is all abo.ut. Under this philo.so.phy, the successful law student do.es mo.re than just learn "the law," he o.r she acquires at least the rudimentary to.o.ls o.f legal reaso.ning and argumentatio.n.

This characterizatio.n o.f the legal educatio.n must begin with the understanding that the law is mo.re than just a catalo.gue o.f rules which need only be co.mmitted to. memo.ry . It is , rather, a process in which the lawyer himself plays a creative role. I Mo.reo.ver, it is an adversarial pro.cess, and effective legal advo.cacy mandates the develo.pment of tho.se skills which best facilitate ardent co.nfrontatio.n.

With this in mind, the efficacy o.f a c1assro.o.m technique which co.mpels the student to. summo.n his co.urage and reso.urcefulness is evident. The So.cratic method, if used properly, is just such a technique. The student is called upo.n to answer difficult questio.ns which are carefully designed to.

M

The Socratic Method: Greek Myth or the way to Lawyerly Thinking?

(continued on page 12)

11

Manoli surely impress upon

students that they must alter the lackadaisical attitude that may have permeated their college careers and that they must commit themselves wholeheartedly to the study of law. But this total commitment is accompanied by a high degree of fear and insecurity in one's own ability which tends to relegate the student's ingenuity to the lowest position on the legal totem-pole. The student becomes absorbed in legal precedent. Legal precedent is elevated to an almost sacred status, albeit justifiably so. To the student, blind ad herence to precedent is the only means to escape the sword of Socrates.

This worship of precedent as an end all to legal problems, which in my mind is created by blind adherence to the Socratic method, has a retarding effect on many students that may, in turn, impair their effectiveness as practicing attorneys in the future. Instead of utilizing precedents as a tool to develop one's own style and appreciation for the law, the student immerses himself in them to protect himself from further embarrassment.

To insure that he will survive the ordeal unscathed, the student com-

Eddy stimulate analytical legal thinking.

Obviously, the success or failure of this method is largely dependent upon the instructor's ability to formulate relevant, provocative questions. The Socratic method may be jeopardized, however, by interrogatories which call for "the correct answer." This is because truly stimulating questions are, by definition, those which test the student's ability to reason, and not merely to recall.

Because of the variety of formats employed by professors in eliciting student participation, as well as the varying degrees of competence with which individual instructors formulate their questions, it is difficult to harness the concept of the Socratic method for the purpose of espousing its virture . Nonetheless, whatever the particular style of the professor, the value of promoting meaningful class participation and discourse should not be underestimated.

One purpose of oral interrogatories is perhaps best illustrated with the help of a familiar scenario: It is Mon12

mits the judge's opInion to memory without questioning its worth, and he mimics or simply copies a writing style regardless of whether he is comfortable with it. Regardless of the fact that existing precedents continue to play an integral part in the day to day practice of an attorney, the highly subjective, almost instinctual, ability to mold an argument that will complement a particular fact pattern is what distinguishes attorneys from one another.

The development of a creative attitude toward the practice of law demands a more liberal medium than the question and abuse sessions that occur in law school classrooms. It calls for an environment in which the young students' response is not met with a resounding "No" or a pert "Does anyone have a better answer than Mr. So and So," but rather with "It's interesting that you perceive that to be the major issue, Mr. So and So, How would you justify your position, please?" With this approach, the student would be encouraged to reflect critically on his comment and would induce him to use his argumentative skills creatively to support his contentions . Use of this type of dialogue would serve the law student's purposes better in the long

run than confrontation which too often results in the student having to hide sheepishly behind a book, searching desperately for the magic words for which the professor was looking.

There is another justification for adopting the more humane practice of eliciting dialogue between professor and student. The Socratic method, I believe, prematurely discourages students from developing an interest in trial advocacy. Once a student has had his head lopped off by a professor wielding the Sword of Socrates, that student will be unlikely to engage in combat with any figure who may use the weapon against him again if he can avoid it. Although this ordeal by fire could be justified as a means of screening out those unfit to advocate in a courtroom atmosphere, I believe that in many instances the sharp edge of the Sword of Socrates may cut short the life of a potentially excellent trial lawyer before it is given an opportunity to blossom.

This article is not intended to be a personal indictment of any member of the Duquesne faculty. It merely represents a suggestion to temper the unregulated use of a system that in many instances does more harm than good. â&#x20AC;˘

day morning, midway through the first semester of the student's first year. The student, Mr. A, is wrestling with the prospect of another hour of what he less than affectionately calls "Legal Persecution." Having spent the greater part of Sunday evening reading cases and drafting "abstracts," he is prepared and yet unprepared. As he fixes his gaze upon the erudite figure at the head of the class, one thought only runs through his mind: Will he call on me? The student's palms begin to perspire as the cold, gray eyes of the Grand Inquisitor search the roll sheet for the morning's first victim. "Is Mr. A here today?" Ninety-nine inaudible sighs of relief; and, for the moment at least, Mr. A feels the weight of the world upon his shoulders.

Whatever the psychological underpinnings of Mr. A's anxiety in the foregoing dramatization may be, his experience is one which is common to most students, at least during the first year. Moreover, the value of learning to come to grips with such situations is not lost upon completion of the

first year, nor upon completion of law school itself. For the legal practitioner is routinely confronted with stress situations in which his ability to articulate issues and to arrive at sound judgements will be scrutinized and evaluated both by his peers and by those in a position of authority .

Self-confidence and strength of conviction are marks of a successful attorney .

Perhaps a popular misconception is that the Socratic method of learning has its place only in the classroom.

This is not so. Socrates himself was a promoter of dialogue - the free exchange of ideas - which is necessarily restricted to a large extent in the classroom situation. The study group, on the other hand, is an ideal medium for the Socratic method. The tension of the class rom is eliminated, and the participants are free to pursue the insand-outs of particular issues at their own pace. A truly productive study group is more than a mere review of class material; rather, it is an open dialogue in which students have the (conlinued on page 14)

Organizations JURIS EDITORIAL BOARD - TOP LEFT: Barry K. Cosey (editor·in· chief), LEFT: Verlee Prybyloski (associate editor), BELOW FAR LEFT: Theresa Homisak (associate editor), BELOW: William McCabe (associate editor), INSET: Michael Calabro, Paul Porell, William Price, Gino Peluso (assistant editors).

STUDENT BAR ASSOCIATION OFFICERS - FROM LEFT TO RIGHT: Bill Walker (day vice·president), Tom Newell (secretary), John Fonzo (president), Joe Covelli (treasurer), Paul Klein (evening vice·president).

PHI ALPHA DELTA TOP: Ray Reagle (treasurer), Rich Schubert (justice); FRONT: Peggy Egan (mar· shall), Lauren Blackburn (secretary), Amy Webster (vice·justice).

DUQUESNE LAW REVIEW - TOP: Bill Myers, Marilyn Sydeski, Peter Crusco, FRONT: Jerry McDevitt, James Hollihan.

APPELLATE MOOT COURT OFFICERS - FROM LEFT TO RIGHT: Dennis Turner (president), Veleter Mazyck (secretary), Garry Zyra (evening vice·president), Judy Mackarey (day vice·president; not pictured).

13

Legal Gems Pennsylvania Liquor Control T heBoard recently revoked the Scoreboard Lounge's liquor license finding that it had violated a statute prohibiting "lewd, immoral or improper entertainment" on its premises. The evidence relied on by the board was testimony to the effect that the lounge's scantily clad female dancers had performed in a lewd, immoral and improper manner. The Pennsylvania Supreme Court finalized the revocation when it dismissed the lounge's appeal. However, Justice Manderino filed a sharp dissent maintaining that first, the terms of the statute are unconstitutionally vague, and second, that since the terms are so elusive, a conviction thereunder in fact amounts to an application of private notions of moral beliefs.

Justice Manderino further pointed out that if the court is going to apply such private notions of moral beliefs, it should observe that there are people who believe that the mere sale and consumption of liquor is lewd, immoral, and improper. Finally, Justice Manderino concluded his dissent by noting that:

"I should like to write more, but I need time to relax, 1 have an interesting essay to read about "Elvis the Pelvis" and his allegedly obscene gyrations, following which there is some interesting T. V. fare involving scantily clad females who reportedly (from T.V. previews) will be doing some interesting bumps and grinds - not however supported by any liquor commercials which we all know are "lewd, immoral, and improper" (I may even have a beer while being so occupied)."

Commonwealth oj Po. Liquor Control Board v. Ronnie's Lounge, 400 A2d 1317, 1319 ( 1979).

lena Jech and Adolf Befurt had a A child to whom they attached "Jebef" as a surname. The Hawaii Registrar of Births was not very keen on this compromise and refused to accept "Jebef" as the child's name.

In an opinion by Samuel P. King, the U.S. District Court for the District of Hawaii ruled that parents have a common law right to give their child any name they wish; and that the registrar's refusal to accept "Jebef," amounted to a deprivation of that right under the color of state law. n the evening of February 13, 1974, the Revival Service at Shepard's Fold Church of God was very crowded with many worshipers being forced to pray in the aisles. This proved unfortunate for Mrs. Bass, as she was knocked down and injured when an excited Mr. Fussell ran down the aisle and collided with her. In response to an ensuing suit, Mr. Fussel alleged that he was not responsible since he was "trotting under the spirit of the Lord." The Supreme Court of Louisiana equated this defense with that of self-intoxication however, and thereby found him negligent. Nonetheless, in a dissenting opinion, Judge Bance maintained that Mrs. Bass had assumed the risk by praying in the aisle as she knew or should have known of the demonstrative nature of the church service.

I

Bass ve. Aetna Ins. Co., 370 S02d 511 (1979)

Eddy opportunity to voice opinions, to expose misconceptions, and to stimulate further inquiry.

Professor Kenneth Gray, in his recent Duquesne Law Review article, notes that there are a number oftstated criticisms of the Socratic method, at least with respect to its use in the classroom. 'One such criticism is that the Socratic method tends to reduce the amount and quality of information imparted to the student.

Although there is weight to this argument, it is a common platitude among lawyers that you'll never know more general law than you do when you first graduate from law school. If this is true, it points to the fact that there is a limit to the amount of working information which the practitioner can carry around in his head; and this in turn serves to undermine the necessity of deluging the student with information, much of which will either be forgotten or obsolete shortly after he 14

finishes the bar exam. Certainly information is important, but the development of analytical and critical skills necessary to solve new and unforeseen legal problems, and to engage in effective legal argumentation, are equally if not more important.

For it is these skills which effectuate what Professor O'Meara calls the lawyer's creative role in the legal process: "The lawyer doesn't find the answer to his client's problem - not if it's a real problem he makes it ... Knowledge, as vital as it is, is not the lawyer's chief asset. He has even greater need for ... the "feel" of the law, the ability to diagnose a legal situation, .. . the imagination to use (relevant) materials to his advantage in his client's cause. " J

Another professional criticism of the Socratic method is that it "turns students off. ' .. This is due primarily to the fact that the Socratic method is often, and perhaps justifiably, associated with the perpetration of indignation and humiliation upon the student. When this is the case, an otherwise beneficial tool becomes an instrument of "terror and intimidation" in the hands of the instructor.

This practice is not at all prevalent at Duquesne, but to the extent that it exists at all, it should be discouraged.

Humiliation and indignation breed contempt, which is an unhealthy factor in any formula for learning. The mark of a good teacher has always been the ability to bring out the best in his students. Create the proper atmosphere, provide the necessary challenge, and the student will supply the rest. When the Socratic method is used in this way, the student will have

t's been said on good authority that I law school can be a grueling experience. However, there are easier ways to become a lawyer than to endure three years of legal schooling.

For instance, the Bar Leader, published by the American Bar Association, reported that the 125 members of the Kansas House of Representatives found such a route; they adopted an amendment declaring themselves lawyers. Soon however, they became dissatisfied with their newly acquired status and repealed the amendment. In explaining why, one member stated that "In England, lawyers are called solicitors.

In France, ladies of the evening are called the same thing. If you go to either one of them, the result will be about the same." Another member simply stated that being a lawyer was not enough, "I want to be a judge."

he children and personal repreT sentative of a decedent recently filed suit against Orlando Funeral Home for mental distress. They alleged that they underwent extreme mental pain and suffering after witnessing the decedent's coffin begin to fall apart as it was being carried to the grave site. The First District Court of Appeals of Florida dismissed the complaint, however, noting that in the absence of an actual "physical impact," no claim for mental distress was stated.

Harper v. Orlando Funeral Home, 366 S02d 126 (1979)

-David J. Laurent no one to blame for his shortcomings but himself.

The notion that Socratic dialogue is a vital part of our law school education centers on the idea that a lawyer should be more than a "learned hand;" he should be a dynamic person as well. Those who would abandon the Socratic method altogether in favor of "spoon-fed" instruction would deny the student the opportunity to cultivate a very important aspect of his legal personality. The Socratic method provides the neccessary forum for the cultivation of that personality. Through it, the law school experience is elevated above the mediocrity of a mere paper chase.

'O'Meara, An Inlroduclion 10 Law and How Siudy II, 51 Notre Dame Lawyer (supp.) 7, 14 (1976) 'Gray, supra note I, at 393 .

JO'Meara, supra note 2, at 14 'Gray, supra note I, at 393.

10

â&#x20AC;˘

Bakke of ethical justification for the nature and role of the legal system as a whole in our society. Thus, ethics and law meet again, at that point.

Since the Court's recent decision in Kaiser Aluminum and Chemical Corporation v. Brian E. Weber is so similar to Bakke, a brief comment about it seems in order. Despite what seems at first to be the Court's reversal of itself in this case, there is really no contradiction in the arguments.

Thejacts are significantly different in this case. Kaiser is a private company, not a federally funded institution. No state action was involved, and hence the pertinent law is the Civil Rights Act, Title VII, and not the Equal Protection Clause of the Constitution.

There is, to be sure, a familiar ring to much of the language of the majority opinion. We read that the intent of

the legislation was not to provide equal protection for whites and blacks but to remedy job discrimination against blacks. Preferential treatment for those discriminated against was not to be required, but voluntary preference was to be permitted, and various sorts of affirmative action encourage. The Kaiser employment plan, with its quota, is judged a permissible one. These are emphases typical of the Brennan opinion in Bakke, which is hardly surprising since Brennan wrote the Kaiser opinion and Justice Powell and Stevens took no part in the consideration of the case . Nevertheless, the difference in the factual circumstances prevent the Kaiser decision from being contradictory to that in Bakke.â&#x20AC;˘

15

urely the most vilified decision or the term is Herbert V. Lando. I Colonel Herbert had achieved some notoriety through his expose of the alleged cover-up of atrocities by his superior officers while serving in Vietnam . A subsequent segment of the CBS "60 Minutes" Program reported on his charges in a manner which Colonel Herbert contended falsely and maliciously defamed him.

Colonel Herbert, a conceded public figure, sued the network, two of its employees, and the Atlantic Monthly for defamation. During the course of discovery, the producer and editor of the segment, Barry Lando, refused to answer a variety of questions concerning his editorial decisions regarding the program alleging that the first amendment prohibited inquiry into his state of mind. The Court refused to recognize a constitutional privilege surrounding editorial decisions, thus maintaining New York Times V. Sullivan' as a provable standard. The impact of Herbert V. Lando may be largely confined to cases involving a "public official" or a "public figure", since only these plainti ffs must prove the actual malice of a pu blisher in order to recover damages. The Lando opinion implies that if actual malice does not have to be proven, a court might protect the editorial process from discovery on the grounds that state of mind evidence is not relevant. This suggestion may prove illusory, since even though a private party does not have to prove actual malice as a matter of constitutional law, the same sort of proof is hardly irrelevant to a negligence standard. In any event, a defamed private party could make state of mind evidence relevant by seeking punitive damages since these cannot be recovered absent a showing of actual malice.!

The other signi ficant decisions on libel law this term were Hutchinson v.

Proxmire' and Walston v. Reader's Digest Ass'n.' In both cases, the Court addressed that aspect of Gertz v. Robert Welch, Inc.路 which held that a person may become a public figure for a limited range of issues if

S

'99 S . Cr. 1635 (1979) '376 US. 254 (1964)

'Gertz v. Robert Welch. Inc. 418 US. 323 ( 1974) '99 S. Cr. 2675 (1979) '99 S. Cr. 2701 (1979)

' 4ISUS.323

16

spending. The award was given in the hope that public awareness of federal expenditures would lead to a more useful application of available monies.

Proxmire argued that the plaintiff, by applying for federal funds and responding to the Golden Fleece Award, became a public figure for the limited purpose of comment on his receipt of federal funds. The Court rejected this argument, stating that the plaintiff's access to the press came after the alleged libel. Further, the plaintiff did not qualify as a ~~i===~=-=;;;;;~~~~~~21 public figure because he did not thrust himself or his views into the public controversy to influence others.

The combined effect of Hutchinson and Walston is to sharply reduce the number of libel plaintiffs who will he "voluntarily injects himself or is have to prove "act ual malice" as a drawn into a particular public controversy. " prelude to recovery. Although the In Walston, the Reader's Digest Court considered several factors to published a book which identified the determine the plaintiff's status, their plaintiff as a Soviet agent who had predominant focus in both opinions operated in the United States during was upon the plaintiff's access to the World War II. At no time was the media before the alleged libel took plaintiff ever indicted for espionage, place. Therefore, if a libel plaintiff is although Wolston had plead guilty at shown to have regular and continuing one time to a contempt charge for access to the press, he will most likely failure to respond to a subpoena to be deemed a "pu b I ic figure". If appear before a special grand jury in- however, the plaintiff's access to the vestigating Soviet espionage ac- media is due to the alleged libel, it will tivities. The Court held that this did not be sufficient to elevate him to not justify his classification as a such a status. limited purpose public figure, since he had neither voluntarily injected n Smith v. Daily Mail Publishing Company' , the Court considered himself into controversy, nor engaged the attention of the public in an at- whether a state statute violated the tempt to influence the resolution of first and fourteenth amendments by the issues involved. The Walston making it a crime for a newspaper to decision further states that a party publish, without written approval of who engages in criminal conduct does the juvenile court, the name of any not automatically become a public youth charged as a juvenile offender. figure for purposes of comment on a The Court refused to decide if the limited range of issues relating to the statute operated as a prior restraint, conviction, since conviction of a holding instead that where a newscriminal offense is not a voluntary paper lawfully obtains and publishes truthful information, the state may act.

In Hutchinson, the plaintiff did not punish its publication except perform a voluntary act which precip- when necessary to further a substanitated public debate. The plaintiff, a tial interest. Chief Justice Burger, behavioral scientist, applied for and writing for the Court, found that the received public monies to study ob- state's purported interest in protecjective measures of aggression in cer- ting the anonymity of juvenile oftain animals, such as the clenching of fenders did not override the constitujaws when the animals were exposed tional rights of the press to publish to various stimuli. Senator Proxmire, truthful information. Moreover, the the defendant, awarded a "Golden statute did not even accomplish its Fleece of the Month Award" to stated purpose, since the electronic NASA, which had provided funding media and other forms of publication for what he perceived to be an exam- were not prohibited from placing the ple of extremely wasteful government '99 S. Cr. 2267 (1979)

Decisions

I

same information in the public realm.

In his concurring opinion, Justice Rehnquist stated that the state's interest in preserving the anonymity of its juvenile offenders far out-weighed any interference with freedom of the press, but he agreed with the majority that the statute did not accomplish its stated purpose, and for this reason, concurred in the judgment. In conclusion, Justice Rehnquist stated "that a generally effective ban on publication that applied to all forms of mass communication, electronic and print media alike would be constitutional."

This is a unique approach, as Justice Rehnquist's reasoning is that the statute is unconstitutional not because it impinged upon the newspaper's right to publish truthful information; it is unconstitutional because the electronic media could publish truthful information .

In Gannell Co. v. DePasquale 8 , the Court rendered an extremely perplexing decision on the right of the public, as well as the press, to attend a pretrial suppression hearing . The defendants in Ganell had been charged with murder, and the case received extensive pre-trial publicity. In order to preserve their clients right to a fair trial, the defense attorney requested that the pu b Iic and t he press be excluded from the suppression hearing.

The prosecutor did not oppose the motion, thus the trial judge ordered the proceedings closed. A reporter employed by Gannet was present in the courtroom at the time of the motion, but raised no objection. The next day, however, the reporter asserted a right to cover the hearings, and requested a transcript of the hearing.

The trial judge agreed that the press had a constitutional right of access, but concluded that the defendant's constitutional right to a fair trial out-weighed the interest of the press and the public. Subsequently, the U .S. Supreme Court, in an opinion

by Justice Stewart, held that the Constitution nowhere mentions any right of access to a criminal trial on the part of the public; its guarantee, like the others enumerated , is personal to the accused. Although Justice Stewart recognized that t here is a strong societal interest in public trials, he ruled that such interest does not equal a constitutional right to

compel a public trial, especially when the parties to the action agree that it should be closed to protect the defendant's right to a fair trial. Stewart then refused to decide if the first and fourteenth amendments guaranteed to the public in general, or the press in particular, a right of access to criminal trials, stating that any such putative right was considered by the state court in assessing the competing societal interests. Chief Justice Burger concurred, but wrote separately to emphasize his opinion that a hearing on a motion before trial to suppress evidence is not a Irial, but a pre-trial hearing, and therefore, not within the command of the sixth amendment. This concurrence is based on the grudging admission that a defendant's fair trial rights may be compromised by widespread dissemination of the effects of the exclusionary rule in the particular case. However, to overrule the exclusionary rule in order to ensure a fair trial appears somewhat of a pyrrhic victory for the criminal defendant.

Justice Powell also concurred and stated that the press has an interest protected by the first and fourteenth amendments in being present at the pre-trial suppression hearing, although this right is limited by the right of a defendant to receive a fair trial. To Powell, a trial court must consider whether a fair trial for the defendant is likely to be jeopardized by publicity of prejudicial evidence that will not be presented to the jury .

Justice Rehnquist in a separate concurrence, stated that the sixth amendment did not prohibit the parties from closing a trial for any reason, no matter how jurisprudentially appealing. Further, there is no first amendment right of access in the public or the press to judicial or other governmental proceedings .

Gannel has been harshly criticized by the press, and it has been reported that some 18 trials have been closed since the opinion was announced. In a highly unusual event, both the Chief Justice and Justice Powell have discussed the opinion in public in an effort to temper its effect."

Regardless of why courts have closed their doors since Gannell, it seems obvious that the court did not intend such a result. The Stewart opinion was careful to note that the right to

' 99 S . Ct. 2898 (t 979)

'Newsweek. Augusl 17. 1979

waive a public trial is not the equivalent of a right to compel a private trial. Whatever confusion results from Gannell is due to the Court's failure to state whether closure was proper because of the defendant's right to a fair trial or because the defendant had waived his right to a public trial. Most likely, the Court will take the earliest opportunity to clarify that closure is proper only when both are present.

-

Jerry McDevitt

Footnotes The bespectacled Professor Ken路 neth Hirsch Plans A Unique Sabbatical Leave for the coming 1979-1980 law school year . The Professor will relinquish all teaching assignments he now possesses, but will nonetheless continue instructing first year evening students in the art of Property Law .

Beginning in April 1980, the law faculty will be given an opportunity to embark on sabbatical leave with "no strings attached ." The U niversity, prompted by American Bar Association commentary, will allow

Three New Faculty Members At Duquesne Law School To Be Hired . .. by the month of April.

Professor Cornelius Murphy Was Hospitalized in the middle of the summer of 1979 for what was at first believed to be a mild heart attack. The illness was subsequently diagnosed as being of a less serious nature and he was allowed to return home after only a few days of hospitalization .

Duquesne University has recently decided that the amount of revenue, percentage wise, which the university takes out of each law student's tuition is to be reduced to twenty percent.

The Additional Funds thus AI路

lowed To Be Withheld By The Law School will provide for new renovations to be undertaken at Duquesne, as well as providing greater input into the Student Bar Association Treasury for Student Social activities.

Richard Dechambeau, 1974 evening division, was killed earlier this year in an airplane crash. Those who wish to contribute to Dick's children should make their donations payable to Dechambeau Trust Fund c/ o: 2008 Law and Finance Building, Pittsburgh, Pennsylvania 15219.

17

Recent Law School Controversies Gaining a perspective on some chaotic issues t is important for the student members of an academic community to have a perspective on the institution where they pursue their education. All too often, an appreciation of the academic environment and its curriculum comes only after graduation, while working in one's profession. In an effort to accelerate this process, Juris has consulted people who are concerned with and about Duquesne University School of Law. The Dean, various Faculty, and Student Bar Members were interviewed.

Both the American Bar Association (ABA) and the Association of American Law Schools (AALS), the two law school accrediting bodies, were contacted. The results, to the best of our knowledge, map out a perspective on the dynamics of Duquesne Law School.

From its inception in 1911, the Duquesne School of Law has been regarded by many as the "Workingman's School." This nickname originated because Duquesne was solely an evening law school during its first 47 years. Classes were held from 7 P.M. to 9 P.M. on Monday, Wednesday, and Friday, enabling those who worked during the day to enter the field of law. Until the University of Pittsburgh affiliated with the state in 1965, Duquesne's tuition was approximately VJ that of Pitt Law School and thus placed less strain on the salaries of those students supporting families.

During the evening school years of the Law School, five deans presided in succession over the small student body. These deans were chosen from among eminent practioners in the local legal community. The classes were composed of as few as twelve students in total enrollment, and the faculty was as small as two professors. The location of classes moved from the George Building on Fourth Street (191 I), to Canevin Hall on the Duquesne Campus (1923), to the Fitzsimmons Building on Fourth Street (1931).

The ground work for expansion was laid in 1947, when the Carnegie Corporation commissioned Lon

I

18

Fuller of Harvard Law School to report on the legal needs of Pennsylvania. The Fuller report, entitled

Legal Education In Pennsylvania, commended Duquesne for its dedicated faculty, its excellent studentfaculty rapport, and its continuously open library, but criticized the overcrowded conditions, lack of elective co,-,rses and insufficient li'brary resources. Fuller concluded that Duquesne Law School was not ready for accreditation by either the ABA or AALS. In response to this report and with the University's co-operation, Dean Gerald Brophy instituted a program calling for a new facility, library expansion, and more effective faculty hiring practices. The program remained uncompleted at Brophy's death in 1956. His successor, Thomas <Quinn, was left with the task of establishing the law school in its current home, Rockwell Hall, which was completed in 1958.

The Law School immediately petitioned the ABA for accreditation.

Provisional accreditation was granted in 1960 and finalized in 1962. In 1964, the visiting evaluation team from the AALS unamimously recommended accreditation, which was received by the law school in 1965.

Duquesne's senior faculty members were hired approximately 13 years ago, after the dual accreditation was finalized. Dean Quinn hired four new faculty members, three of whom, Professors Basial, Murphy, and Pelaez remain on the staff. Thus the stage was set for the immediate situation at the law school. he purpose and goals of this law school have become questions of current debate, and should be seen in the context of the law school's development. Law students generally feel themselves to be immersed in a struggle to survive which is so consuming that little time is devoted to consideration of the validity of law school goals. At times, they may be just accepted as valid, or be seen merely as an obstacle to hurdle, or may not be considered at all. But, when administrative policies affect

T

the quality of the legal education provided and the degree conferred, the students must be concerned and take action. Unlike many diciplines, the law allows students to affect its growth both directly in the field as a clerk or in clinical programs, and indirectly through Law Review writing.

It becomes incumbent on those given such responsibility to consider the quality of their preparation and to review the administrative and educational policies of their schools.

Duquesne Law School, although not a "National" institution in the same sense that Harvard and Yale are "National" schools with an interest in producing national political and social leaders, is well considered on a regional basis. The.emphasis of the education here is to place wellprepared, practicing attorneys into the field, with an emphasis on providing a pool of talent for Western Pennsylvania. However, a conflict has recently arisen concerning the administrative techniques necessary to implement this goal.

Therefore, the atmosphere of conflict which has seemed to permeate the law school over the past year may be misleading. Unlike other law schools, ideas which are often kept silently boiling in the minds of the faculty are being brought forward into the arena of public debate. When avenues of quiet reconciliation are exhausted, the legal mind turns to legal means for resolution. uits have been filed against the Law School, the Dean, and the University. One suit against the law school administration has been brought by Professor Krasik to challenge the policies relative to her dismissal. A second suit against the law school administration by Professor Demas disputes the propriety of shifting his status from teaching to law librarian duties. The Krasik suit is on appeal from a ruling by Judge Papadakos dismissing the case and the Demas suit was settled out of court. The third suit was brought by eight faculty members against the Dean, the law school, and the University to challenge the ability of the

S

University to re-appoint a dean over the objection of a majority of the faculty. This suit is still pending.

Affecting these three suits are the policies of the ABA and AALS. Both organizations are concerned with ensuring the quality of legal education and are attempting to assist law schools in their work. To accomplish this goal, both have established guidelines to ensure uniform practices among law schools. These guidelines effect both the administration and educational content of law school programs . It should be reassuring to Duquesne law students that, in an era of doubt as to the quality of practitioners provided by some law schools, the law suits relate only to administrative matters.

Compliance with ABA and AALS guidelines is a concern of all the litigants . Many law schools in this country are isolated from the pool of legal talent and resources which Duquesne enjoys as a result of being located in downtown Pittsburgh. It is fortunate to be able to draw from the city' s network of law firms, legal libraries, and corporate headquarters to augment its staff and physical resources. Many law schools cannot draw from similar resources and must independently comply with ABA and AALS guidelines. With many, diverse law schools to evaluate, both accrediting associations increasingly make their evaluations on quantitative rather than qualitative criteria. As a result, a "numbers game" is likely to develop. The product of a law school is the lawyers it produces, the community enhancement it undertakes through faculty and student involvement in community affairs, and its scholarly work . According to the 1973 evaluation of Duquesne by the ABA, Duquesne does not meet the guideline standard for numbers of volumes in its library, library and classroom space, and faculty student ratios. The ABA follow-up evaluation of 1979 recognized the percentage of law school tuition returned to the law school by the university, faculty student ratio, and library space as areas of concern . But, qualitatively, Duquesne's products are highly regarded as evidenced by the esteem in which the local legal and political community hold Duquesne Law School.

Maintenance of this reputation and compliance with ABA and AALS

standards has been a focal point of the past year due to Student Bar Association efforts to promote better facilities and the faculty law suit.

Both the ABA and AALS allow a "reasonable time" to correct deficiencies in a law school's compliance with their guidelines. Concern over the time since the 1973 evaluation became acute in 1978, with many regarding the current Dean as the key to the correction of the deficiencies and the expansion of the law school. he Dean, Ronald Davenport, has T stated that he has lined-up sizeable grants for the completion of the new building and expansion of law school resources. To facilitate his work the University appointed him to a third five-year term over tAe objection of a majority (8) of the faculty.

The objecting faculty complained of a prior policy agreement whereby deans were limited to two, five-year terms. When a solution was not found, the dissenting faculty filed suit to enjoin his re-appointment as a violation of their contracts of employment. These contracts incorporate the ABA and AALS guidelines by reference. Standard 205 of the ABA Standards and Rules of Procedure for approval of law schools states in part ". . . the Dean and faculty of the law school shall have the responsibility for formulating and administering the program of the school, including such matters as faculty selection, retention, promotion, and tenure; . .. " An interpretation of this standard was obtained from the ABA on February 7, 1979 and allows for the re-appointment of a Dean over the objection of a majority of the faculty in "rare cases and for compelling reasons." A further communication from the AALS stated that they found nothing in the their rules to invalidate the reappointment of Dean Davenport. A recent statement from the ABA states that there was no violation of standards with respect to the reappointment of the Dean. The expansion of the law school might therefore serve as a compelling reason to satisfy this requirement of standard 205.

The Dean has stated that the law suits have slowed the progress on the expansion project. However, the focus these suits place on law school problems has brought positive results. The pending suits may have

precipitated the University's release of a larger portion of law school revenues for law school needs. The University was draining 50 percent to 80 percent of law student tuition for other uses, such as funding for sagging undergraduate programs. Although the new law school building will not be ready for use until the mid1980's, the University has become committed to implementing an interim program which will provide 20 percent to 40 percent more space for library and study use by remodeling the 8th, 9th, and 10th floors of Rockwell Hall and by dividing Peter Mills Auditorium into three classrooms and a study area by January I, 1980 at a cost of approximately $100,000.

Additional faculty hirings, slowed in recent years by a lack of funds, will be started again. Therefore, the 1980's should bring us the completion of a new building, an expansion of the law library, and expansion of the faculty to 20-24 full-time instructors, as compared with the present fourteen, plus a full-time law librarian .

Thus we should meet the letter of the ABA and AALS standards within a "reasonable time." At the same time, Duquesne will continue to be able to draw from the rich legal resources which surround us. Although in the short run, some taint may have resulted from the internal administrative feuds laid bare for public inspection, it is certain that the source of friction which necessitated the drastic action needed to be exposed and examined. The University's withholding of law school funds vital for needed law school improvements could not be justified on any grounds and the question of retaining the present Dean is far from settled, regardless of the outcome of the faculty law suit.

The ripples of these events decrease geometrically with distance. Debate within an academic institution keeps it healthy and dynamic. Our students need not carry a sense of distrust or resentment as they move into the profession and should see the present debate at Duquesne Law School for what it real.ly is: a chance to improve the legal education we receive. This goal will be accomplished through participation and discussion among all concerned.

-

M.J. CALABRO

19

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1980 Day

1980 Night

1981 Day

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