Juris Magazine- December, 1979

Advocacy for the SO's A Look at Computers and the Law

I!

..I~

s

Editor's Note If the legal profession found the past decade to be full of change and surprises, it should hang tight to its stare decisis, because the decade of the 80s will be unbelievable.

The judicial system will face a massive caseload, with causes of action heretofore unimagined, which will generate more and more complex iitigation. Additional courts will be necessary to accommodate these developments, and, with these, more specialized expertise. Merit selection of judges will be enacted and an increased administrative staff for the courts will play greater roles in the judicial system. New forms of procedure will streamline filings and process requirements in order to funnel the multitude of cases to quicker, more equitable decisions.

Consumers will continue to press for representation before governmental agencies the numbers of which will geometrically expand. Administrative law will rival antiquated common law courses as a requirement at every American law school by 1990. The Rule in Shelley's Case will finally be repealed in all the 50 states.

Lawyers will have television commercials to detail their talents while the courts will further open their doors to the camera.

In this issue, Juris takes a look at some of these rapidly evolving areas of the law. Mark Widoff, Pennsylvania'S first consumer advocate, reports on the role of public advocacy in agency law-making. Alan Silverblatt describes the growth and importance of computers in the legal world. Juris editor Bill Price discloses a seminar held at Dickinson School of Law where remedies in radiation law were discussed. Former Secretary of Education John Pittenger pinpoints due process requirements as an element of government inefficiency.

Resolving these issues for the 80's and for America's third century will require creative thought by innovative jurists if the term justice is to remain synonymous with the law.

Barry K. Cosey, Editor-In-Chief

Juris wishes to extend its condolences to the family and friends of Charles H. Bender III, class of 1979, whose untimely death in an auto accident has taken something of value from us all.

Response to the October Issue The Socratic method is indispensable to the development of reasoning and speaking abilities and to an appreciation of the subtleties of the law. At the same time, it need not be an oppressive, wasteful, or alienating experience. The key, alluded to by Mr. Eddy, is that the Socratic method be properly used.

The antithesis of this idea is the all too familiar spectacle of a professor taking 30 or 40 minutes to Socraticly develop an extremely simple point of law, rather than taking a few minutes to explain it and then spending the balance of the time in a consequently more enriching discussion of the subtleties.

The best teaching approach must vary with the course, the professor, and the level of experience of the students. I am not advocating spoon-feeding on a massive scale. Still, the limited modification of the Socratic method suggested above would, I believe, produce law students and attorneys who are more knowledgeable and less alienated, without sacrificing the admitted virtues of that method.

Alan M. Silverblatt

VOL. XIV No.2 -

Winter 1979

Editor-in-Chief Barry K. Cosey Associate Editors Verlee Prybyloski Theresa Homisak William McCabe Assistant Editors Michael Calabro Paul Porell William Price Faculty Advisor John J. Sciullo Photography William Price Paul Porell Illustration Paul Porell Staff Members: Lauren Blackburn, Marsha Blythe, John Braszo, Joe Covelli, Philip 'Ebersole, John Eddy, Richard Fidei, Dave Flowers, Paul Giba, Marsha Heister, Judy Himmelhoch, Charlotte Jefferies, Richard Joyce, Dave Laurent, Judy Mackarey, C. J. Manoli, Veleter M. Mazyck, Jerry McDevitt, Gino F. Peluso, Michael Relich.

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 Avenue, Pittsburgh, Pennsylvania 15219.

Telephone (412) 434-6305 Copyright 1979 Duquesne University

10 12 12

4 L G

M

9 2 ------

--

-

- - -

4

0

Ol 0

B

IN MEMORIAM

At the close of the funeral for Justice Louis L. Manderino, former Dean of Duquesne Law School, and former law professor at Duquesne Law School, we sang the Battle Hymn of the Republic. In the refrain of the Battle Hymn is the line: "His Truth is Marching On". I think the statement "His Truth is Marching On" is an appropriate comment to the brilliance of the career of Justice Louis L. Manderino or maybe I'll just call him Lou as he was known to all of his friends. The record indicates that Lou was a brilliant undergraduate student at St. Vincent, a nationally recognized orator while in college, and an outstanding law student at Harvard Law School. His class included Derek Bok, now President of Harvard.

Lou Manderino was one of the most imaginative, creative, and clearly the most brilliant teacher I have ever had the privilege to know. His mind was fertile and aggressive - a hotbed of ideas, thoughts, and passions. He brought to the legal profession and to law teaching insight, creativity, and a warm and human sincerity. Candor requires me to say that Lou never enjoyed the professional reputation he deserved . After all, it was easier to call him Lou than to say Justice Manderino, easier to call him Lou than to say Dean Manderino, and easier to call him Lou than to say Professor Manderino. But those of us who knew him, who worked with him, who shared both his triumphs and his sorrows, realized the brilliance of his mind and his talents.

The molders of public opinion are more concerned with form than substance, are more concerned with how one looks rather than with what one says. These molders of public opinion who do not take the time to think and to examine the words, thoughts, and insights of Louis Manderino thus do not realize the loss that we have suffered. But, for the ordinary working people, the people with problems, the people who look to the law for justice, for support, for protection, who look to lawyers and judges to champion their cause - they know that they have lost a friend. Those of us who have walked with Louis L. Manderino through his valleys and atop his mountains know we have lost a teacher, a dedicated public servant, and most importantly of all, a friend.

We grieve for his death.

Dean Ronald L. Davenport

"A Jriend may well be reckoned a masterpiece oj nature" Ralph Waldo Emerson At some time during our lives, each of us should be touched by a friend like Justice Louis L. Manderino. I, along with many, had that good fortune. I say good fortune because to have such a friend is indeed a rare and fulfilling experience.

As a student at the Law School during the early 60's, Justice Manderino taught me and many others the art of lawyering. To me, those lectures are as if they occurred yesterday. They appear vividly in my mind - electrifying the soul and tormenting the imagination. The neverending hypotheticals reverberate within me sending forth that common theme that justice and fairness is for all and not just for some.

For many of us this outstanding teacher greatly influenced the direction of our careers . But for the experience of being one of his students, I doubt if I would have ever decided to begin a career in legal education.

But more importantly, Justice Manderino instilled in us an attitude of doing what was right regardless of external pressures or adverse personal consequences.

My happiest days at the Law School occurred during his term as Dean. During that period he brought forth a leadership to the Law School which has been unequaled .

His compassion toward, his openness with, and his support of students and faculty developed an attitude that truly created the concept of the Duquesne Law School Family. Disagreement was always respected. Suggestions were willingly received. His office door was open to all, but more importantly his heart was receptive to the problems that came forward. To me, this was the Golden Era of the Duquesne University School of Law. As a member of Justice Manderino's judicial staff, I once again had the good fortune of working with this unique human being. As a member of the Supreme Court, he did not fear taking the unpopular position.

His strong sense of fairness provided him with the strength to stand alone. The Commonwealth and more particularly its legal community will sorely miss him .

And so, as I brush away the tears, I say farewell Dear Friend. Farewell in body but not in spirit, for your spirit shall live with me all the rest of my days.

Professor Raymond F. Sekula Class of 1965

3

First Impression: Public Advocacy In Pennsylvania n the last days before the summer recess of 1976, the General Assembly of Pennsylvania passed and sent a bill to the Governor for his signature establishing the Office of Consumer Advocate - a state-funded executive agency designed to provide public advocacy to Pennsylvania's utility consumers in regulatory and court proceedings. While the concept had been under discussion for quite some time, and while similar legislation had been enacted or was being considered in many other states, the bill represented the first official sanction of the public advocate concept in Pennsylvania and was approved only with serious reservations by the General Assembly.

In fact, so serious were the reservations that the Senate inserted into the bill the first "sunset" provision in modern Pennsylvania legislative history. This provision provided that the Office of Consumer Advocate would expire on June 30, 1979, unless the General Assembly extended the Office's existence by April 30, 1979.

As the State's first Consumer Advocate, sworn in by the Governor around Thanksgiving of 1976, I had the opportunity to personally confront the problems and issues which the legislative reservations reflected for a period of about two and onehalf years. I welcome the opportunity to reflect on my experience and to offer views on the viability of the public advocacy concept.

It probably should be stated at the outset that, at least if measured by public acceptance and legislative action, this initial experiment in public advocacy in Pennsylvania has met with favorable response. In its first

I

4

by Mark Widoff three years of existence, the Office has had its budget increased and its "sunset" provision extended for five years past the initial deadline of June 30, 1979. This is, of course, gratifying to all those who have been associated with the Office during this period.

Yet, it would be a mistake not to continue to explore the problems and questions raised by institutionalized public advocacy first, because the Pennsylvania General Assembly is considering expanding the concept to include advocacy before the state Insurance Department (on insurance rate regulation, e.g.) and before other state agencies and second, because the federal government continues to consider proposals (both legislative and executive) for providing officially sanctioned and funded advocates before federal regulatory agencies.

Thus, the Office of Consumer Advocate may be viewed as an experimental vehicle to be observed for what lessons it can teach us about the pros and cons of establishing such agencies in the future. In that spirit, then, what are the issues and problems that need analysis and what light can our experiment shed on them?

(1) What is the proper role of a regulatory agency and should it include advocacy for consumer interests? Has the Consumer Advocate helped or hindered the PUC? These questions raise the most fundamental of all the issues and must be answered before any others are pursued.

It is possible to argue cogently for

the proposition that regulatory agencies were created to protect the public and, in the proper performance of that function, they should adequately present and reveal all necessary facts and arguments on behalf of all segments of the public. In the area of public utility regulation, then, it would be the responsibility of the Pennsylvania Public Utility Commission (PUC) staff to perform this function. There are two serious problems with this contention - one conceptual and one historical.

As Senator Kury pointed out during floor debate on the original consumer advocate legislation it is difficult to require the same person to serve both as advocate and as judge.

Since public regulation usually involves the balancing of many divergent interests and concerns, it is quite hard to conceive of how a regulator can be properly objective in his analysis if he must also worry about whether unrepresented interests are having their views properly articulated. Further, while it is possible in theory to assign this responsibility to "independent" staff, the fact remains that the staff cannot be truly independent if ultimate responsibility and accountability for its actions lie with the regulator. It is precisely for this reason that we make prosecutors independent of judges and that we attempt to provide for representation in criminal and civil matters for indigents. While it may be arguable in theory that regulators should not be constricted by traditional notions of the role of judges in courts, our experience tells us that the adversary system is likely to produce the best possible clash of viewpoints that will

result in the most complete record in those kinds of proceedings where such a record is desirable. I n a utility or insurance rate case, for example, it is difficult to see on what grounds one might object to having the best possible exposition of relevant facts and clash of informed opinions. Indeed, the complexity and difficulty of the issues in a rate proceeding make such clash and exposition very desirable to the decision-maker. In the exercise of a purely administrative or policymaking responsibility, on the other hand, a full-scale adversary proceeding may not be necessary or desirable. Thus, a regulatory agency, such as the PUC, that has administrative and policy-making functions - as well as those usually referred to as "regulatory" or "quasijudicial" - may very well wish to dispense with full-scale adversary proceedings in performing the former functions. But in performing the latter, considerations of statutory and constitutional law as well as public policy require that full scale hearings be held. And, if full scale hearings are held, then a truly adversary proceeding would appear to be most desirable - both in terms of achieving the best possible result and of bolstering public confidence in the process.

It is here that historical experience also leads us to the conclusion that public advocacy may be necessary and desirable. Our historical experience - both at the federal and state levels - has been that many important regulatory proceedings have not had the aggressive participation of adverse parties that appears desirable. In' Pennsylvania, for example, the role of the public utility staff in rate hearings was relatively passive.

Because the public utility staff basically functioned in an advisory capacity to the Commissioners and because the staff had a responsibility to prepare a final staff report which usually served as the basis for the ultimate Commission decision, the rela-

tionship between the utility company and the public utility staff at rate hearings was not aggressively adversary, certainly not in the sense that one would expect in normal adversary litigation. In fact, the evidence suggests that the staff saw its role as primarily investigative and factfinding and that it therefore went about its task as if someone had a report to write and was trying to collect all the required available information so as to make the necessary recommendations and findings in that report.

The problem of course is that almost all the available information came from the public utility company either in the form of answers to data requests or in the form of answers to questions on cross examination during the actual hearings. Staff did not view it as its responsibility to present testimony of its own or to present a view on the record independent of the utility company in question. In many rate cases the utility company and the staff were the only real participants.

In other cases intervention by municipalities or commercial and industrial representatives resulted in adversary proceedings on rate structure issues but seldom resulted in adversary proceedings on all four of the main issues of a rate proceeding - namely, rate base, rate of return, revenue and expenses, and rate structure.

Since the utility companies retained highly prestigous expert witnesses and lawyers to establish a complete record on their side and to argue it vigorously before the Commission, the result all too often was a one-sided presentation that, at the very least, created the appearance of unfairness. Of course, this situation is still very much present in Federal regulatory proceedings and in state regulatory proceedings where no provisions have been made for a more balanced presentation.

The Office of Consumer Advocate

unquestionably helped to establish a more balanced presentation to the PUc. In the course of the two and one-half years that I served in the Office we presented (primarily in rate cases) highly qualified expert witnesses in areas such as finance, engineering, accounting and economics who had either never before testified in Pennsylvania or had never before testified on behalf of consumer interests. Studies were presented, arguments advanced and briefs filed on behalf of consumers that suggested new approaches to ratemaking problems. In general, it is my perception, based on both public and private statements of the Commissioners, that the Commissioners feel they have benefited from the increased adversarial nature of rate proceedings and from the fact that the Consumer Advocate has invested substantial resources in order to bring outside expert witnesses into the rate case proceedings. This is especially true because we presented to the Commission, in almost all the cases in which we participated, an alternative theory of the case and a whole range of adjustments to the company's proposals. It would appear that the Commissioners benefited substantially from the fact that a large number of important issues not only were raised but also were crystalized and developed on the record by qualified expert witnesses. Thus, the Consumer Advocate made it possibie for the Commissioners to pick and choose from a much wider range of approaches to many of the significant issues which are present today in ratemaking proceedings.

In Pennsylvania, furthermore, the inadequate records that had been developed in many cases were leading to an uncomfortable number of reversals by the appellate courts of PUC decisions, especially where the Commission had attempted to depart from the approach desired by the utility company. Having a full range

5

of expert testimony reflecting consumer interests in all four major areas of rate-making makes it more likely that ultimate Commission decisions rejecting utility company contentions will be sustained on appeal.

Thus, I believe it can be safely concluded that the presence of the Consumer Advocate has helped the decision-maker by providing a more balanced record and has contributed to wider public confidence in the integrity of the regulatory process.

It should not be concluded, however, that public advocacy is necessarily useful or desirable in all administrative agency proceedings. Aside from the obvious constraints imposed by the fact that the public treasury is not deep enough to fund advocacy in all .types of proceedings before all public agencies, it is highly unlikely that such advocacy would be desirable even if fiscally possible. It would be a serious mistake to believe that all decisions by public agencies should be subjected to the process of adversary hearings. The adversary system is a highly useful one for helping to establish a complete record where considerations of time, justice and public policy make such a record desirable and possible. But, there are decisions of an administrative or policy-making nature where the institutionalization of public advocacy is unnecessary and even foolish. This may very well have been the problem with certain proposals at the federal level that would have established institutionalized watchdogs over all aspects of an already overly cumbersome and inefficient administrative mechanism. The test, I would suggest, is whether the decisions to be reached are truly quasi-judicial in nature. Do they involve the kinds of well-defined interests and adversary parties that characterize judicial proceedings? Do they require a full record with a right to judicial review?

Are attorneys going to be active and formal participants? Are the factual issues such that formal adversary proceedings will be desirable and necessary? Are the issues of such a nature that pragmatically allow for the application of the adversary procedure without creating serious harm to society or the body politic?

These are not easy questions and they suggest to me that institutionalized pu blic advocacy would be very desirable, for example, before the

6

state I nsurance Commissioner, the United States Nuclear Regulatory Commission and the Federal Energy Regulatory Commission in their formal regulatory proceedings . An institutionalized public advocate before the Department of Energy generally, on the other hand, would probably add to the already intolerable level of bureaucratic overlap and confusion that characterizes most of the federal bureaucracy .

Thus, in retrospect, our General Assembly acted wisely in restricting public advocacy to a particular regulatory agency and by keeping the agency relatively small.

(2) Who does the public advocate represent?

The Consumer Advocate statute requires the Consumer Advocate to state, in each proceeding which he enters, what specific interest of consumers is to be protected. This requirement, also a very wise one in my judgment, has required the Office to consider fully and carefully what groups of consumers will be affected

by PUC action in a particular proceeding. I n an electric rate proceeding, for example, the interests of residential consumers are quite different from those of commercial and industrial customers. Further, the interest of the small residential user may be very different from the interest of the .all-electric customer.

This inescapable fact has required the Office to make very difficult decisions and choices - that have required the exercise of discretion and the formulation of policy. Thus, it is obvious that all customers have an interest in keeping rates as low as possible without endangering adequate service. By focusing heavily on accounting, finance and engineering questions affecting the total cost of the service, the Office represents the interests of all consumers. But where it comes to questions of cost allocation to various customer classes, the Office during my tenture generally tried to follow this criteria: (l) Represent those classes that are least likely to be represented; (2) Consider the overall purpose of the statute and the legislative intent; (3) Try to be consistent once a decision has been made.

Application of these criteria led us

generally to represent the interest of small residential users on the theory that they are the most poorly organized and therefore are least likely to be represented. Furthermore, it is that group to which the Legislature was most clearly directing its concern when the Office was created. As I said several times during my tenure, we tried to represent the interests of a hypothetical retired couple living on fixed income in Bradford County.

Whether right or wrong, this conscious decision to take seriously our responsibility to represent a specific consumer interest made it possible for us to behave like lawyers - not judges. Unlike the PUC staff, we did not need to concern ourselves with representing the entire" pu blic interest". Such a concern leads invariably to taking "wishy-washy" positions which are of very limited help to the decision-maker. We decided to let the decision-maker balance all the various interests - our job was to make it a little easier for him to realize what he was balancing.

Of course, this approach was criticized. At the "Sunset" hearings, the state Chamber of Commerce attacked our refusal to represent business interests. But the Kury Committee generally displayed no sympathy with this criticism. Businessmen organize a Chamber of Commerce precisely to represent their interests. There is no reason, in my judgment, for the Consumer Advocate to duplicate the Chamber's activities. This is not to say, of course, that particular cases may not present opportunities to represent the interests of small businessmen, as well as small farmers or other unrepresented groups. The important point is that the decision as to who is being represented must be made clear to the decision-maker and to the other parties. This development will lead almost automatically to better representation of the other interests involved, since others will

rush to counter the Consumer Advocate's facts and arguments.

(3) How big should the Office be?

How many cases should it take on?

I n a sense the answer to this q uestion was determined by the legislature from the beginning when it appropriated a wholly unrealistic sum for the Office's operations - $250,000 for the first year. Fortunately, the legislature increased the sum and the Office averaged about $1 million dollars in expenditures annually during its first two and a half years of existence.

When one considers, however, that attorney time and expert witness fees alone in a large rate case often exceeded $100,000 for our Office (compared with several times that amount for the utility companies), it is easy to see that difficult decisions had to be made: How many cases? Which cases?

What issues should be covered in cases we entered? Again answering these questions required the exercise of discretion and, again, fortunately the legislature specifically authorized the Consumer Advocate to exercise that discretion and to pick and choose his cases. This made it possible to mass resources so as to maximize the Office's impact on a particular issue in a particular case. For example, the Office did the first independent analyses of electric utility company load forecasts and the first independent analyses of management of nuclear power construction projects for presentation on the record in rate cases. Such large undertakings were only possible because we consciously ignored dozens of small water or telephone company finngs. The Office undoubtedly would have been condemned to meaningless and unconvincing presentations were it required to participate in all of the hunof regulatory proceedings going ore the PUC each year. n the issue of size, the Office re-

mained small - less than 30 employees. That smallness is a terrific advantage to the head of the Office. Memoranda are unnecessary - people just talk to each other. Morale is high because communication is so much easier. Supervision and accountability are much easier to accomplish.

Thus, for reasons having to do with fiscal necessity and because of the unavailability of many experts - except on a contractual basis - the Office so far, has remained small. Whethe; it will be possible to keep the Office small will depend a great deal on the determination of those responsible to keep it that way. Even the expansion of its responsibilities to include insurance regulation need not necessarily lead to a wholesale expansion of permanent staff. In any event, it is obvious that bureaucratic inertia and fossilization of the agency are a clear and present danger . Keeping the agency small and keeping the "sunset" provision intact may help to retard this process; although it will not, unfortunately, guarantee immunity. Should the agency succumb to this disease, it should be abolished as quickly and as painlessly as possible.

(4) How much independence should the public advocate have?

It appears fitting to conclude this article by discussing an issue that created some unpleasantness just prior to my departure. That issue related to the question of how much policy independence the Consumer Advocate should enjoy in determining what directions the Office should take. In the aftermath of the accident at Three Mile Island it became clear to me that serious financial consequences would result from the accident. The obvious question was who should pay for the capital costs of a useless power plant, the costs of purchased power to replace the power that would have been produced at Three Mile Island had the accident not occurred, and the enormous costs of cleaning up the radioactive mess at the plant. In light of what I always perceived to be the role of the Office - i.e., advocacy - the decision to attempt to remove at least some of the economic burden from the shoulders of the ratepayers seemed a logical one.

Given the enormous public attention on the issue, however, the deci-

Mark P. Widoff is a partner in the law firm of Wid off, Reager, Selkowitz & Adler of Camp Hill, Pennsylvania. Mr. Widoff was nominated by Governor Shapp and confirmed by the Senate to be Pennsylvania's first Consumer Advocate.

Additionally, Mr. Widoff served as Executive Assistant for Public Affairs in the Pennsylvania Department of Education, and was the director of a project to revise and recodify the Pennsylvania School Laws. As Deputy Attorney General for the Pennsylvania Department of Justice, Mr. Widoff served as Chief of the Human Services Division. Mr. Widoff completed his undergraduate studies at Clark University in Massachusetts and received his L. L. B. from Harvard Law School. Mr. Widoff currently resides with his family in Mechanicsburg, Pennsylvania. sion became embroiled in an attempt

by Governor Thornburgh to maintain full control of all aspects of the Three Mile Island situation. The Governor delegated to the Attorney General the task of coordinating all legal responses to the accident and the Attorney General attempted to assume control over the Consumer Advocate's operations in this area.

What further complicated the picture was that the Consumer Advocate, though nominated by the Governor and confirmed by the Senate, is part of the Justice Department for administrative purposes. This decision was made because it seemed ridiculous to create an administratively separate agency which contained less than 30 people. While the Attorney General had never before attempted to exercise policy control over the Office, the potential for trouble had been there all along.

In my last weeks in office I fought

Legal Gems T

he plaintiff in this action prayed for leave to file a complaint in forma pauperis for a violation of his civil rights. The plaintiff, in this unusual case, alleged that Satan and his staff, the defendants, deprived him of his constitutional rights by causing him misery, and deliberately placing obstacles in his path which resulted in his downfall. The court however, dismissed his prayer for several reasons.

First, they questioned whether the plaintiff could obtain personal jurisdiction over the defendant since the complaint did not contain an allegation of residence in the district.

Nonetheless, the court did note that although there were no officially reported cases where jurisdiction was obtained over this defendant, there was an unofficial account of a trial in New Hampshire where the defendant filed an action to foreclose on a mortgage. Second, the court noted that the complaint itself was deficient as it did not include the necessary instructions to the U.S. Marshal concerning where service of process could be made. Finally, the court indicated that the suit could be maintained as a class action since there appeared to be questions of law and fact which would be common to many other people. In this context, the court maintained that it couldn't determine, at this point, whether the

Widoff very hard for the principle of policy independence for the Consumer Advocate. His job, in my view, was not to reflect the policy positions of the Governor or anyone else, but to loyally and aggressively represent the interests of those people on whose behalf he was sworn to advocate.

Thus, the Consumer Advocate Office, if it was to be anything more than just another layer of bureaucracy, had to be true to its advocacy role. The Advocate should not be forced to represent all the various constituencies that a Governor or an Attorney General must represent. He should stake out and present a clear adversary position that does not pretend to be anything more. Should he fail to perform in a satisfactory manner, then he should be accountable to the appointing authority for his

8

plaintiff, as representative party, would fairly protect the interests of the other members of the class.

United States Ex. Rei. Mayo v. Satan and His Staff. 54 F .R. D. 283 (W . O. PA. 1971).

T

he Pittsburgh Press recently reported the Catch-22 like saga of Jerry the Bum v. the Social Security Administration. The story begins in Alabama, where, after having lost his wife and his job, Jerry turns to drinking and living off a $208 monthly Social Security check . Jerry subsequently drifted up to Chicago, but soon discovered that he couldn't receive his $208 monthly check as he no longer had a permanent address to which it could be mailed. Hence, Jerry was forced to panhandle to survive.

One day while panhandling on the streets of Chicago, Jerry met Kevin Gregory, a kind hearted soul who worked for a local church group that failure. The Consumer Advocate cannot be a power unto himself; he can and must be accountable to the people's elected represen tatives.

However, within that framework, he must be able to exercise discretion in staking out his positions and advocating for them. Without policy independence he becomes unnecessary surplusage. As I said at the time: The Attorney General has plenty of lawyers already to represent the Commonwealth; the last thing the Consumer Advocate should be doing is representing those interests that are already more than adequately represented.

For the time being, it does appear that this principle of policy independence has been accepted by all concerned and that the unpleasant confrontation did at least result in a reaffirmation of the importance of this

attempted to straighten out bums.

Kevin listened to Jerry's problem with the Social Security Administration and offered to help by letting Jerry use his residence as a place to receive the checks.

The two proceeded to a nearby Social Security office to have it all arranged. After having given all the preliminary information, Jerry was asked how he's been eating. Jerry explained that he begged, sometimes getting sandwiches, and sometimes food. The clerk then made a notation on the form, reducing Jerry's benefits from $208 to $138 . She explained that if a claimant has any other income, his payments would be limited to $138 per month, and therefore, since Jerry has an income from begging, he could only receive $138. Kevin pointed out that the only reason that Jerry is begging is to survive, since he hasn't been able to receive his checks.

"It's the law," responded the clerk .

In amazement, Kevin said, "That's crazy." The clerk answered, "Then tell Congress to pass a new law."

Kevin retorted, "But if he gets only $138 a month, he'll have to keep begging." "If he keeps begging," said the clerk, "Then he'll be receiving extra income, and he will receive only $138." "How can he get $208?" asked Kevin. The clerk answered, "When he stops begging." "I need a drink," said Jerry.

Pittsburgh Press, Sept. 24, 1979 -

David J. Laurent

principle.

In summary, then, the Office of Consumer Advocate represents a hopeful experiment in public advocacy. The experiment demonstrates that public advocacy can be valuable under certain limited conditions.

Cautious expansion of the concept appears desirable but this should be done without creating a large bureaucracy and without over-selling the virtues of the toncept. Finally, it is imperative that clear and independent advocacy positions be taken that represent an honest and professional attempt to give voice to unrepresented interests. Without a constant effort to adhere to that ideal, without an absolute refusal to dilute meaningful advocacy by enlarging the constituency, the public advocacy experiment in Pennsylvania will not be worth nurturing or expanding. •

W·,

''l = I" : L-r '--;

I IILI

•

.

o

F o

l

A Coming Attraction ..

Implementation of the plans to expand the law school's facilities were set for October 15, 1979, but the Law School Administration is still awaiting the completion of mechanical drawings by the architects of the projects to renovate Peter Mills Auditorium and to relocate the School of Business Library from the ' tenth floor of Rockwell Hall. The drawings of the auditori.u m renovation into three lecture halls to accommodate 100-120 students each are expected to be completed by midNovember, when the University will open bids on the project. Construction is slated for a mid-December start, with availability of the facility

for classroom use by the fall of 1980.

Hopeful guesses show the tenth floor library space to be available in midspring of next year. Total costs are projected to be near $300,000.

Fr. Joseph Duchene, University Vice President for Finance, said several options are being considered to finance the expansion program and the plans for the new law school building have not been abandoned.

The expansion plans have been submitted to the ABA, but a response has not been received by the University. There is apparently no guarantee that these plans are adequate, even as a stop-gap measure.

President Carter invited Dean Davenport to Washington, D.C. twice during the fall semester. On September 17th, the Dean was a member of a select group briefed on Salt II. He was invited back on October 10th for a second Presidential briefing on the administration's Energy Program and the proposed Windfall Profits Tax. A program for recruiting graduates of ABA approved law schools to assist, advise, prosecute test cases, and pursue reform in aid of the nation's poor was begun in 1967 at the University of Pennsylvania and bears the name of the Reginald Heber Smith Community Fellowship Program.

Recruiting culminates in October of each year and the program functions through 265 offices in the U.S ., Puerto Rico, the Virgin Islands, and Micronesia . The standards are high; beginning salary is $15,000 .

Of the 2,010 statewide applicants for the Summer 1979 Pennsylvania Bar Exam, 1,680 passed for a 83.5070 rate, down from last year's 89%. Duquesne's rate was 96%.

Counseling Young Counselors

Jane Fonda and Tom Hayden dressed Pittsburgh Working Woo men, a Pittsburgh organization for women office workers, on October 8th, as part of a national tour for the Campaign for Economic Dem· ocracy. She urged employers to "give raises not roses" since "women don't work to be liberated, they work because they have to."

Allegheny County's association to aid the novice attorney is the Young Lawyers Section of the Allegheny County Bar (YLS). Information is usually passed out at the induction ceremony each October, but the current, active, chairperson, Professor Joy Conti, hopes to disseminate information even earlier and encourage more active participation.

YLS membership is initially free and open to all attorneys in Allegheny County, under 35 or in practice less than 10 years. It exists to involve young lawyers, to assist them, to provide a forum for their views, and to augment the continuing education program by offering low cost courses.

To implement these goals, eleven standing committees exist. Russell J. Ober (391-6668) directs the Educa· tion Committee, aimed at practical skills instruction. J. Frank McKenna (288-7703) chairs th.e Juvenile Justice Committee, which recruits and trains interested attorneys . The Law Student Liaison Committee

is directed by Timothy F. Burke (392-2075) to provide information on YLS activities . Janice H. Anderson (355-6444) heads the Library Committee, aimed at improving the Allegheny County Library. The Discovery Opinion Committee is looking for more access to pre-trial procedures, under John P. Vetica (281-0287). The Media Committee chairman, Kevin Hansen (456-2824) attempts to disseminate information to the public. Joseph Bosick (261-6000) distributes newsworthy information through the Public Relations Committee. Of particular interest to those interested in private practice is the Small Practitioners Committee, chaired by Barbara Clements (261-3773) . Experts on various topics are procured by John S. Sherry (562-9110) for the Speakers Committee. And Tom Michalek (355-0770) and Charles R. Smith (355-6536) handle the Social and Athletic Committees, respectively.

9

Modern technology propels the legal profession into the future

n the not too distant future, comI puters may become as common in law offices as typewriters and dictaphones are now. This marriage of law and technology will create advantages, problems, and new applications which will be of increasing significance to the legal profession in the next few years.

Why Computers?

The legal profession, like almost every other profession and industry today, is making ever-increasing use of computers, and for much the same reasons .

These reasons include the steady reduction in the cost of computers, together with their increased speed, versatility, and reliability. Memory or control circuits that once filled entire rooms have been reduced to a single silicon chip no bigger than a watermelon seed. A hand held programmable calculator costing about $60 now duplicates the functions, except for printing, of a computer of 30 years ago, but with greater speed and reliability. Computer systems costing as little as $2500, can now perform most of the clerical tasks of a small office more quickly and accurately than their human counterparts.

As technology improves and costs less, more and more operations may be automated at a reasonable cost.

Assigning dull and repetitive jobs, such as payroll, filing, or record keeping, to a computer frees humans to do more challenging and productive work.

Modern computers are well sui(ed to a small business or professional environment. Their limited cost, power consumption, and size meet the needs of even a small office. Perhaps most importantly, they are designed to be programmed and operated by nontechnical personnel with a minimum of instruction. Virtually any clerical task that can be reduced to a series of discrete logical steps may be performed by a computer.

10

Hardware While the particular combination of hardware, or physical equipment may vary widely from one computer system to the next, most small systems embody similar components.

A typical system is built around a CPU, or central processing unit. The CPU contains the main internal memory and the circuits which perform the program, do the arithmetic, and control the entire system. The programmer or operator communicates with the computer primarily by means of a keyboard similar to that of an electric typewriter. The computer "talks back" by flashing information on a CRT, or cathode ray tube, similar to an ordinary television screen.

Since the computer's main memory will almost always be insufficient to store all the programs and data that must be accessible to it, and since the contents of the memory are lost whenever the machine is turned off, some type of mass storage is required .

The most common mass storage device for small computers is a flexible magnetic plastic disk, about 8 inches in diameter, which may carry hundreds of thousands of characters of information. The disk is inserted into a disk drive connected to the computer. Information may be read from or written onto the disk at thousands of characters per second .

An automatic typewriter or a high speed printer may be connected to produce letter-quality documents, as fast as a page per second.

Applications The possible applications of computer technology to the law are legion. Computerized legal research is perhaps the most exciting. Several commercial research services, such as LEXIS and WESTLA W, are already in wide use. A computer terminal consisting of a keyboard , screen and printer is installed in each subscriber's office. Each terminal is connected via

telephone lines to a central library computer. An attorney using a terminal may search for materials bearing on a particular question of law from a huge data base of FederalState statutes, case law, and administrative regulations and decisions.

As an example of the speed and power of such systems, consider the problem of researching the current standard of care applicable to a medical malpractice action under Pennsylvania case law. The attorney, after making telephone connections with the central computer, might type in instructions to find all Pennsylvania Supreme Court opinions for the last 10 years in which the phrase "standard of care" occurs within 10 words of the word "malpractice."

After a wait of a minute or two the computer would answer with the number of decisions it found which matched the specifications. If only a few were found, the search could be broadened by including alternate specifications. If hundreds of opinions were found, the search could be narrowed by requiring that only those opinions satisfying additional specifications be included. In addition to this" full text" method of search, the attorney may search only head notes, or may rely on the standard topic indexing of each case. Several searches may be joined into one. The attorney may view the entire text of the opinions found, the headnotes, the passages where the particular words appear, or only a list of citations for later reference. The computer can even Shepardize a case. Any of this material may then be listed on the attached printer.

The cost of computerized legal research services is high, sometimes exceeding $100.00 per hour. However, it may often be less than the cost of having an attorney, at a high hourly rate, trek to the nearest law library and manually do the same research.

In addition to fast access to a wide range of materials and elimination of

much of the drudgery oflegal research, computerized researching avoids the problem of sources that are overlooked or missing.

A law office computer may be used for calendar control. The unit can generate a daily listing showing appointments, court appearances, deadlines, etc .. . , as well as important future dates, such as filing dates for briefs or pleadings or the end of limitations periods .

The computer may be used to organize and index the large quantities of documents and information necessary to prepare for complex litigation . This may be especially helpful in anti-trust or class action cases where the amount of depositions, business records, and other evidence is often staggering. ..

Computerization can also facIlitate word processing, or document preparation. Contracts, wills, leases, and even letters often consist mostly of boiler-plate. By storing the most commonly used phrases in the computer's memory, an individually-tailored document may later be produced by selecting the appropriate phrases in the desired order, filling in the blanks, and adding the required new material. The computer will print out the new document in a few minutes.

Even if the entire document consists of newly typed material, a work processing system facilitates easy COrrection . The typed text may be proofread from the unit's CRT screen and only the mistakes need be re-typed .

The computer will then print out a letter perfect corrected copy.

Additional applications for the law office include keeping of time records, billing, payroll, and general accounting. In related areas, computerization may expedite court administration, legislative redistricting, tax form preparation, economic forecasting, estate planning, and future earnings computations . Computers are presently in wide use in law enforcement to quickly identify and trace stolen property, criminal records, firearms, and motor vehicles and their owners and operators.

Concerns of the Attorney路 Consumer An attorney or firm considering the use of a computer is confronted with a wide array of options. While there is no substitute for individual research and comparison shopping, a

few general considerations should be mentioned.

The first decision is whether to have an in-house computer, or to have only a terminal and use a research system or service bureau. The research system will usually provide only research services. The service bureau may provide data storage, computer time, and some software, or programming. If more individual programs or applications are required, the in-house computer is probably the best choice. The decision must be based on availability, cost, and the needs and budget of the office.

If an in-house computer is selected, the next decision is whether to buy or lease. Leasing costs more in the long run but enables the user to change to another system or supplier on short notice, a change that might be impractical where a purchase is involved.

Service is another important consideration. Sooner or later, all hardware will need some servicing at the hands of highly-trained technicians.

The prospective purchaser or lessee should ask who will do the servicing, at what cost, and how prompt the service will be. A law office with the bulk of its operating information stored in a malfunctioning computer system can ill afford to wait several days for a technician to arrive.

What kind of hardware is the best for a given application? How much

memory will be adequate? What kind of software will be required and who will provide it? How about training of office personnel? And how can the confidentiality of clients' records, so critical to the practice of law, be maintained? Before purchasing or leasing a computer system, the attorney should consult with a disin路 terested person knowledgeable in the field to help answer these and other questions. By making an informed decision, the attorney will get the right system at a reasonable price.

Effects of Computerization As computers become more prevalent, changes in the law and in legal practice can be expected. Computerrelated areas of law have already developed that were unheard of a generation ago. These include computer-assisted theft, electronic funds transfer, taxation of computer services, proprietary protection of software, computer licensing, leasing, and purchasing agreements, and the problem of protecting the privacy of the increasing amount of information stored in computer systems .

As the speed and power of computerized legal research continues to increase, the advantages it affords the user in litigation become more significant. The time may come when access to such a service is regarded as a right, much as certain conventional legal services are now guaranteed to the indigent. A new specialty may even develop, one that combines a general knowledge of the law with the skill to enlist a computer in the practice of it.

The 80's may be the last decade to employ either law clerks or volumes of Shepard's since the capacity of computers to process raw legal data is almost unlimited. The elimination of many of the rote requirements of legal practice may increase the time available for legal reasoning and go a long way toward equalizing the quali. ty of representation by smaller firms, and even the single practitioner, with those of large firms. The concomitant increase in efficiency could even help solve the court backlog of cases which so seriously delays substantial justice at present. At any rate, it appears certain that computers will play an increasingly significant role for the legal profession in future decades.

-

Alan M. Silverblatt 11

asked to determine if an accused's failure to affirmatively indicate an understanding of his constitutional rights could raise the presumption that the Miranda shield had been vol, untarily discarded. The court said no.

An express waiver was required to give more certainty and prote~ti.on ~o an arrested person. By the decISion In Bussey, the determinants of a valid waiver have become narrower and less subjective, and the police have been burdened with a duty to inquire whether the accused understands his rights.

I!iii~~~=~~===""",,~~~~~~ In Sinn v. Burd,2 the Pennsylvania Supreme Court banished the wellknown common law requirement that a person must prove a physical impact or a reasonable threat of he Pennsylvania Supreme Court physical harm, in order to recover for recently made two decisions of the negligent infliction of emotional special importance. One of these, suffering. In Sinn, a mother saw her Commonwealth v. Bussey, I attempts young daughter struck and killed by to simplify the Miranda warnings for the negligent driver of an automobile practical application. The facts of the in front of their home. The mother case can be stated briefly. Bruce became hysterical and later suffered Bussey was arrested by police and severe depression, which necessitated charged with first degree murder. The extensive medical treatment. The police read Bussey his Miranda plaintiff-mother asserted that her aprights, as required by law, and he said prehension in watching her daughter nothing in response. They escorted die was as great as if she had been him to the police station where, fifphysically threatened by the autoteen minutes later the police asked mobile. The court accepted this arguwhether he knew why he had been ment and was convinced that the difpicked up. He answered" It must be ficulty in ascertaining the extent of because I killed that dude back in the mother's resultant emotional sufPennsylvania." This statement led to fering should not deny her the oppormore police questions and the details tunity to establish her claim. of the murder.

The decision to eliminate the reAt trial, Bussey's lawyer argued quirement of physical impact or the that this line of inquiry constituted a immediate threat of impact arguably police interrogation to which the increases the potential for fraudulent Miranda protections applied, and claims. Proof of mental injury has further, that this approach by the always been criticized as speculative police was intended to illicit improper and a source of controversy in other information or a confession from areas of litigation, yet, this problem Bussey. The court agreed, putting in Sinn was dismissed as a matter that credence upon the inference that the judiciary has long coped with in Bussey, under police custody at the other tort actions, and, therefore, no station, felt pressured into saying bar to recognition of the new cause of something he may not have said action . Further, the court rejected the under less coercive circumstances. argument that increased litigation Having resolved this point in would burden the courts, and reBussey's favor, the court's analysis sponded that the duty of ~he co~rt then centered upon whether the conwas to seek justice, not to lIghten Its fession was admissible under an imworkload. plied waiver theory. At the time he The court, however, conditioned was apprehended, Bussey did not inrecovery upon a showing of serious dicate nor was he asked to indicate mental distress and forseeable injury. whether he understood the Miranda To determine forseeability, a factwarnings, and fifteen minutes later he finder could consider facts such as the confessed his guilt. The court was

Decisions

T

'Commonwealth v. Bussey, 404 A.2d 1309 (1979)

12

'Sinn v. Burd, 404 A .2d 672 (1979)

plaintiff's distance from the accident, whether the plaintiff actually saw or heard the accident, and the relationship between the victim and the plaintiff. .

In Sinn, the mother clearly stood In a close relations~ip to the victim and directly viewed the tragedy. However, will the right to sue be limited by the facts of this case? Further appeals will be necessary to draw the line on recoveries in this sort of action. Dean Prosser states in his treatise that only immediate relatives should be granted the right to sue.) Sinn, read broadly, grants a right of action to any person who witnesses a battery and imposes a duty on a wrongdoer to avoid infliction of mental distress. Such person would become a potential plaintiff, provided he or she met the standards set out by the court.

'54 PROSSER ON TORTS 334 (4th ed . 1971)

-

Philip Ebersole

Fault Free Divorce he Pennsylvania Legislature has T departed from its otherwise unimpressive pattern of predictable legislation by radically changing the state's divorce procedures. After much debate among its members, and after a great deal of publicized pressure from the Catholic Church, the House of Representatives passed House Bill No. 640. House Bill No. 640 effectively simplifies marriage dissolution by providing alternative no-fault grounds for divorce either by mutual consent or by following the unilateral provision, in a contested situation. In these cases, the court may grant a divorce without a finding of fault, which had been the touchstone of divorce actions in Pennsylvania prior to this enactment.

Until this Bill is passed by the Senate and signed into law by the Governor, Pennsylvania will still be one of only three states without a nofault divorce provision. The original, fault-based divorce law was enacted in 1929, and, as Anthony Sci rica (R-Norristown), sponsor of the nofault bill commented, "is unjust, sanctions perjury, and intensifies and perpetuates bitterness between spouses. " The "mutual consent" section provides that where both spouses consent

to the divorce by affidavit, and have lived separately for 90 days, the court may grant a divorce. The controversial "unilateral" no-fault divorce provision states that the court may grant a divorce where one spouse files for divorce and, following service of a complaint, lives "separate and apart" from the other spouse for at least three years. The separation must be corroborated by a non-party witness . Additionally, the act mandates court-ordered counseling sessions if either party to a unilateral divorce requests such.

The statute incorporates alimony into Pennsylvania divorce law for the first time. According to the new provisions, the court may grant alimony only if a spouse lacks sufficient prop!-' ) '-=) \ ",...... ;--' ' ~

erty to provide for his or her reasonable needs and that spouse is unable to support himself or herself through appropriate employment. In the determination of necessity, nature, amount, duration and manner of payment, the court is advised to consider a series of factors set forth in the alimony provision. If it appears, therefore, that it is not feasible for an economically dependent spouse to acquire and maintain employment because that spouse is caring for a minor child, the court is not prevented from awarding reasonable alimony. Marital misconduct may also be disregarded in alimony proceedings at the court's discretion.

The proponents of the new divorce code call it fair. Opponents predict the destruction of society. In the words of Moral Majority, Inc.: "The young bride at the altar needs to have the mental freedom to devote herself to her husband and any forthcoming children without having to divide herself between home and career for future security reasons." Persuasive?

Members of the House passed the bill by a vote of 148 to 51 . •

Radiation Law A hot topic at Dickinson seminar Few attorneys actually understand what radiation is or how they would handle a lawsuit on behalf of a client accidentally exposed to it.

Basically, radiation is what results when an unstable isotope ejects particles into the environment around it.

These alpha particles, beta particles, and gamma rays pose a severe health hazard to anyone sufficiently exposed to them .

Exposure to radiation is analogous to being shot with a shotgun. At close range, there is a strong possibility that some vital organ will be "hit".

At long range, even if only one radioactive particle .. hits" the subject, there is always the danger of a mutation developing within the chromosomes of the struck cell. Such chromosomal damage could eventually result in cancer or mutant descendents .

Unfortunately, cancer caused by low level exposure may take decades to show up in the victim. Genetic abnormalities could take several generations to appear. Yet it remains difficult to prove the causal connection since 30070 of the population develops cancer naturally from non-radioactive sources. Add to that the fact that radiation-caused cancer is medically indistinguishable from other cancercausing sources and the difficulty increases tenfold. To compound this proof of causation dilemma, Pennsylvania courts require that expert witnesses testify to a reasonable medical certainty that the cancer is radiation-caused. This is a heavier burden than is required by courts in most other states. A look at Veterans Administration statistics illustrates how difficult it is to establish the causal connection. Of 644 claims submitted by servicemen contending that radia tion caused their cancer, 42 were awa rded compensation. The other 622 ind ividuals were denied recovery becau e they were unable to prove tha t the cancer was caused by radiation ex posure.

Even if the causal connection is established, there are other barriers to recovery. Some jurisdictions have a statute of limitations which could bar recovery by someone whose cancer takes 20 or 30 years to appear.

Likewise, if the victim was accidentally exposed during the course of his employment, Workman's Compensation will probably be his only remedy.

If however, the cancer results from years of low level exposure during the course of employment, suit might be permitted outside of Workman's Compensation if it is argued that such long-term exposure was not the result of an accident.

To add insult to injury, the PriceAnderson Act, enacted in 1957, and recently extended through 1987, provides compensation for the general public, but sets a total liability ceiling of 560 million dollars for anyone nuclear accident. Yet a melt-down of a nuclear reactor in an area similar to Three Mile Island could easily cause billions of dollars worth of damage.

To complicate matters, before strict liability can be argued under the act, the accident must first be classified as an "extraordinary nuclear occurrence" by a showing of at least 5 million dollars in damages.

It is refreshing to note that seminars, such as the one held at the Dickinson School of Law in October, are beginning to address the need for solutions in the developing area of radiation law. Dickinson's two day session began with an introduction to radiation law and major causes of radiation-related injury. The seminar quickly moved from those conceptual points to the more practical problems of preparing a radiation case for trial.

In light of Three Mile Island, the Dickinson seminar was timely and quite successtul at addressing the immediate issues. Unfortunately, the questions of compensation and equitable procedures remain unresolved.

-

William Price

13

Positive Politics Pinpointing the problems ojjair government

by John C. Pittenger ir Henry Taylor, writing in 1832 about "the statesman out of office," says that

S

... I n every man's career, and especially in that of a statesman, a change, a pau se, a break is necessary from time to time, to enable him to understand his life and to weigh permanent interest s and durable effects in an undisturbed medium. I He was right about this, as about a good many other things; and in obedience to his injunction, I have used my recent "sabbatical" to renect on twenty years in politics, the last twelve of them chiefly, if not wholly, in Harrisburg.

Who Cares About Politics When There Are More Interesting and Enjoyable Things To Do? I would argue that we have survived from 1787 to 1979 as much because of our political system, and the skills and understandings needed to make it work, as for any other reasons . Of course, we had three thousand miles of water between ourselves and the pestilences (medical and political) of Europe. Of course, we had boundless (well, not quite boundless, but generous) natural resources. Of course, we had nearly two centuries of colonial experience in which to develop the skills and understandings essential to self-government.

But mostly , we had a superb constitution - and some pretty sound instincts about how to make it work.

Are those instincts weaker today?

And if so, does it require fundamental changes in our ways of doing public business?

There are those who think the answer to both of these questions is "yes." If they are right, I am wrong - and this essay is a defense of the indefensible. But if they are wrongand I intend to suggest that they are wrong - then we are in the process of 'Taylor, Sir Henry . The Statesman, Cambr idge.

England W . Heffer & Sons, Ltd. (1927). p . 181.

14

swallowing some nasty medicine, with unknown side effects, which may also be ineffective.

Why discuss these questions in terms of Pennsylvania government and politics? After all, you will say, events on the national scene - especially in the past decade - have furnished enough material for several primers on citizenship. And the national events and personalities have the advantage of being familiar to nearly everyone. I direct your attention instead to the political health of Pennsylvania for these reasons: I. With the exception of foreign and military affairs, there is no major area of public policy in which the states do not playa role . In some education, welfare, highways - they playa dominant role . So it is a matter of some importance whether they fulfill this role well or bad Iy. 2. For most people, state government is easier to reach and to in f1uence than the federal government. It is partly a matter of arithmetic - as a Pennsylvania voter in a gubernatorial election, you are one of 5 million; as an American voter in a presidential election, you are one of 70 million.

The issues are generally less abstruse - it's easier to fix the blame for potholes than for a balance-ofpayments deficit. And (though this is a matter of conjecture rather than proof) fewer of the key decisio.ns have fallen into the hands of an inscrutable and unreachable bureaucracy .

3. Pennsylvania politics and government need scrutiny - and informed commentary. On this point, both the academicians and the journalists have betrayed us. The professoriat (such are its folkways) would rather write about "Tribal Rivalries in Nigeria" than about the General Assembly of Pennsylvania; and to the press - well, Harrisburg is hell. City Hall is where they want to be . Harrisburg is exile from City Hall, and the Harrisburg press corps is apt to vent on the inhabitants (especially the transient inhabitant s) of that unfortunate city their spleen at being removed from the metropolitan scene.

On The Method of This Essay I propose to approach the problem of assessing the government and politics of Pennsylvania in a roundabout way; to ask, what are the major criticisms? Do they appear to be justified? And are the proposed remedies likely to produce better results?

If the answers to either or both of the last two questions are "no," we may not have established Pennsylvania as a paragon among Commonwealths; but we should at least have raised some doubts about conventional models of reform . 2 Criticisms of our politics may usefully, for purposes of analysis, be lumped into three categories: Some complain of a deficiency of fairness; some of a deficiency of virtue; some of a deficiency of expertise. It will be useful to deal with each separately.

On The Need For Fairness Governments make many decisions vitally affecting individual citizens.

They grant (and revoke) drivers licenses and liquor licenses, school diplomas and college scholarships, permits to discharge wastes and permits to cut timber on state lands.

They bestow a host of other valuable privileges or evidences of quali fication or achievement. They employ large numbers of people. They raise and spend huge amounts of money.

It is important that these things be done fairly - in such a way as to promote confidence in the integrity of government and its policies. For example, few things will erode that confidence faster than the suspicion that a man's hou se, which has the same market value as his neighbor's, is being taxed at twice the rate the neighbor is paying.

In our society, because of its Anglo-Saxon legal tradition, the demand for fairness often takes the specific form of a demand for due process. And we seem to have entered into an era in which no decision can be taken by governments with respect to individuals which does not conform to somebody's ideas of whatever due process requires under the circumstances.

'Some rea ders will perce ive m y debt to Bern ard Cr ick, who se wi se and usefu l book, In Defense oj P()litics, C hicago. U. of C hi cago Pr 1973 (2nd ed) suffer s only from being slightly ollt-of-date and drawn chiefly from British so urces.

Some examples, all drawn from the world of education, will show how pervasive the notion of due process has become: I. It has been true since 1937 that in Pennsylvania a tenured teacher may not be fired except for reasons set forth in the School Code, after a hearing by the local school board, with a right of appeal to the Secretary of Education, and ultimately, to the courts. Now a job is important to the person who holds it (especially if other jobs are unobtainable), and before 1937 it was the regular practice in some parts of Pennsylvania to hire and fire teachers for purely political reasons. But as school enrollments decline and school boards find themselves caught between the rock and the hard place, increasing numbers of teachers, even tenured teachers, are being laid off. What started as a trickle has become a stream, if not a torrent. In my first year as Secretary of Education, I decided eight tenure appeals; in 1977, forty-five.

2. The courts have said - correctly, in my judgment - that a student cannot be expelled or suspended for more than a short time without meeting elementary standards of due process. That same requirement is set forth in the State Board of Education policy on Student Rights and Responsibilities whose validity was affirmed in the Girard case. 3 There is nationwide evidence of arbitrary suspensions and expulsions, and a pattern suggesting racial bias. But only the pendency of the lawsuit and the ignorance of most parents has saved us, in all probability, from a much larger volume of actions in this area.

3. The consent decree signed by the Commonwealth in the nowfamous PARC case' required the state to make a due process hearing available to the parent of any retarded child who was dissatisfied with the child's placement. The State Board, by regulation, extended this protection to all handicapped children in 1975 and recent federal legislation im'Girard School Dist. V. Pill enger, 481 Pa. 91 (1978) held that in issuing the regulations on "Student Rights and Responsibilities" the State Board of Education did not exceed the authority of the General Assembly's grant of legislative rule-making power contained in Section 1317 of the Administrative Code.

'Pennsylvania Association for Retarded Children v. Common wealth of Pennsylvania, 343F. Supp. 279 (1972).

poses the same requirement on all states. Pennsylvania is currently serving over 200,000 handicapped children in public education programs.

As of January I, 1978 we had experienced 344 local due process hearings, with 85 appeals to the Secretary of Education. The first cases are now moving into the federal courts.

4 . By its same action in 1975, the State Board extended due process to the parents of all gifted and talented children. It is impossible to estimate how many children might be involved; but on the premise that most uppermiddle class parents think of each child as a budding Nadia Comaneci or a Bruce Jenner, a Yehudi Menuhin or a Beverly Sills, I would guess that it is not negligible. The picture has been complicated somewhat by the fact that the General Assembly, in passing the 1977-78 budget, imposed a one-year moratorium on programs for the gifted in the secondary schools. But the due process hearings continue.

These examples suggest the dimensions of what has come to be seen as a procedural revolution in the schools.

Similar if less dramatic changes have occurred in other areas of pu blic policy.

Why this sudden zeal for fairness?

It has, I suggest, several roots. One is simply the growing sophistication of the American people themselves. As they acquire more education, and are freed from lives in which survival is the chief concern, practices which formerly were acceptable (i.e., the exclusion of handicapped children from public schools) come to seem abhorrent. Another is the civil rights movement which has educated us to think in terms of fairness, not to blacks alone, but to all Americans who are in any way disadvantaged.

But the spread of due process from its original criminal law context to other areas has gotten much of its impetus from the legal profession itsel f.

Students who were demonstrating in the 1960's decided in the 1970's to work within the system. They are attending law schools in ever-increasing numbers . There they sit at the feet of men and women who for the most part do not have a modest view of what the law can accomplish. More specifically, the public law centers established by federal legislation in the 1960's have furnished a cadre of young lawyers, able and willing to

challenge existing practices in the name of due process, equal protection and whatever other legal concepts are at hand. Finally, the market may be exerting a subtle but powerful influence; if jobs are scarce, then the creation of new rights or the elaborationof existing ones will create employment possibilities in the long run .

All this is far from being an unmitigated evil: Teachers were being dismissed for outrageous reasons; handicapped children were mouldering away in some of our state schools and hospitals; many gifted children are not getting a chance to develop their talents.

But there are costs of many kinds.

Total fairness to X may involve unfairness to Y and Z. We live in a world of limited resources. How much fairness can we afford?

The costs involve both time and money. When I became Secretary of Education, we employed two attorneys; when I left the Department had 13 in Harrisburg and in the field.

And yet, while I was Secretary, we never "caught up." In some respects we were worse off in 1977 than we had been in 1972. It sometimes took (Continued on back)

This article is the first installment of a three part article which Mr. Pittenger wrote while teaching at the Harvard Graduate School of Education. Mr. Pittenger is a lawyer, former state legislator from Lancaster County, Pennsylvania, and a nationally known leader in education.

He is a graduate of Harvard College and the Harvard Law School and was a Frank Knox Fellow at the London School of Economics. He is coauthor, with Henry Bragdon, of The Pursuit of Justice, a study of constitutional rights. Mr. Pittenger served as a member of Governor Milton J. Shapp's administration in the capacities of Legislative Secretary (197l) and Secretary of Education (1972-1977).

15

NO ONE CAN PREPARE YOU FOR THE MULTISTATE BAR EXAM BETTER THAN BRC MULTISTATE TECHNIQUE CLINIC

PROVEN RECORD OF MULTISTATE EXPERTISE

This one-day BRC innovation will sharpen your examsmanship skills through intensive instruction on the psychological and substantive aspects of maximizing your performance on this difficult exam.

The only official statistics available on the performance of the various courses, released by the Supreme Court of a major Multistate jurisdiction, demonstrate that BRC's students substantially outperformed students who chose other forms of preparation.

COMPREHENSIVE MULTISTATE SUMMARIES Written on the assumption that you may have to learn the law from the written materials alone, these summaries provide far more explanation, clarification and bar exam hints than the outlines provided by other courses (BRC's Multistate materials are nearly twice as extensive as BAR/BR I's).

Eastern Regional Headquarters ' 71 Broadway. 17th Floo r. New York. New York 10006 212/344·61BO

Natiunal Headquarters: 924 North Market Street. I nglewood . California 90302 213/674 ·9300

Pittenger us as long as two years to reach decisions in teacher tenture appeals - a scandalous situation, when you think of the personal hardships that are often involved.

Another "cost" which is too often neglected is the drain on managerial time and energy. My Commissioner of Basic Education estimated that he has spent one-quarter to one-third of his time during the past three years on problems relating to fairness toward handicapped children. That is probably not a wise allocation of his time, but given the constraints of lawsuits on the one hand and federal legislation on the other, he has had very little choice.

I have grave doubts about the fitness of judges to resolve some of these questions, and the practicality of asking them to do so. For example, professionals di ffer widely in their views about what is an appropriate education for certain handicapped children. Is a judge in a better position to make such decisions? I think not. And should we be adding substantially to the burdens of a federal

judiciary that is increasingly unable to cope with the tort, contract and criminal law cases which have traditionally been its staple?5 In promising fairness to all we are raising great expectations. Expectations that due process may not be able to meet. The tenured teacher who has been laid off wants her job back not a decision saying that the retrench' For an excellent recent discussion of the limitations facing judges who seek to make broad social policy, see Horowitz, Donald L., The Courls and Social Policy, Washington, D.C., The Brookings Institute, 1977 .

ment was for a good cause. The parents of a handicapped child want to see progress. A decision that the child's placement is appropriate is not likely to be very satisfying.

More than anything, a devotion to fairness carried to extremes may produce paralysis. I don't wish to exag~ gerate. We are not there. We are in fact a long way from being there, but we are moving in that direction, and at a fairly rapid pace. And of what use is a government which is eminently fair - and wholly ineffective? • Non-Profi t Organ ization

U.S. POSTAGE

PA ID PIttsburgh . Pa .

Permil No. 390

.....--

5' ~

~ f'

..-: ~ -

~

0

o

- '"

~

POSTAGE REQUIRED FOR THIS MAILING MATTER