Juris Magazine- Fall 1982

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THE DUQUESNE LAW SCHOOL NEWSMAGAZINE

Edward J. Hanley Hall September 16, 1982

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Editor's Note he members of the community of the Duquesne University School of Law are no longer eagerly awaiting their new beginning. For, in fact, that beginT ning is upon us.

Characterized by much more than the move from Rockwell Hall to the new facility, the Edward J. Hanley Hall, this beginning is symbolized by a new spirit, a new sense of pride within the law school. The administration, under the leadership of Dean John Sciullo, is striving to improve the reputation Duquesne Law School enjoys in Pittsburgh. More importantly, however, they are determined to earn for Duquesne a fine reputation, notable outside of this area. The faculty of the law school is further committed to academic challenges outside the classroom, such as research and writing, in an effort to achieve a higher standard of excellence within the classroom.

Finally, the students at Duquesne should be no less motivated by this new sense of pride. As a student body let us commit ourselves to excellence and assuredly our efforts will not go unrecognized. Each student must share in the responsibility of growth. We must see ourselves as more than a continuation of those who came before us. While we must respect them and attempt to under- I stand their dreams, we must look forward and strive towards the fulfillment of our own goals and aspiration~.

No longer should any student sit idly by, satisfied merely with a passive role.

It is incumbent upon each student to put forth a great personal effort and participate fully in the academic arena. This participation should manifest itself both in the classroom and in extracurricular activities.

The student body can no longer be satisfied with allowing a handful of students to lead. Instead, it is time that only a handful of students do not participate. With respect to this pursuit of activism, it is the classroom that should be the focal point. Apathy and cynicism should not rise among the students as their level of education rises. The interest and desire to learn should not be lower in the third year classrooms than it is in the first year classes.

Rather, it is in the advanced classes where the dialogue and exchange of ideas should be at its zenith.

As students, we should demand nothing less of ourselves now than we did when we first began. However, more than ever before, fully aware of our professional goals we can and should demand more of our law school professors and curriculum.

Perhaps in the final analysis it will be these demands, those we make on ourselves and our school, which will determine the type of law school we will become.

The days of wondering and anticipation are over. The time has come to stop depending on others to do the job only we can do for ourselves. What we do now, is vital! It is our actions, and our spirit which creates the reality of our law school experience. Finally, is it not today's reality which lays the foundation for tomorrow's destiny?

Sincerely,

~ Editor-in-Chief

JilWS Editor-In-Chief Roseann LaRosa Associate Editors Sharon Bogarad Donna Rae Lisa Rich

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DEDICATION CEREMONIES

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REFLECTIONS

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AGE DISCRIMINATION

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Assistant Editors Cheryl Croyle James Gaston Shirley Novak James Orie

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Business Editor Gery Nietupski

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Faculty Advisor Patrick J. Basial

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Photography-coordinator Eric Young

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Feature Writers: William R. Friedman Henry M. Sneath Staff Members: James O'Connell.

Brad Dornish, James Murray, Perry Perrino, Bruce Zero th, 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 Universit y School of Law. 900 Locust Street.

Pittsburgh. Pennsylvania 15282.

Telephone (412) 434-6305 .

Copyright 1982 Duquesne Universit y_

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In this issue

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JURIS INTERVIEW A LOOK INSIDE

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Dedication Ceremonies Edward J. Hanley Hall uquesne University School of Law September 16, 1982

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The day which so many had worked for, planned for, and dreamed of had finally arrived. On September 16, 1982, friends, patrons, and members of Duquesne University's law school community gathered to witness the dedication ceremonies of Duquesne University School of Law's new home, the Edward J. Hanley Hall.

Just fourteen months after the initial ground breaking, this new facility was ready for occupancy at the start of classes on September 8, and was formally dedicated in impressive ceremonies on September 16, 1982.

The keynote speaker for these ceremonies was Supreme Court Justice Byron R. White, who encouraged the law students in the crowd of 800 spectators present by emphasizing that "there remains a strong and consistent demand for first-class young lawyers."

Justice White began his career at the University of Colorado, where as an undergraduate he excelled at both academics and athletics. While at Colorado, "Whizzer" White became a star halfback on the University's football team, and at the same time succeeded in graduating Phi Beta Kappa in 1938. In that same year he accepted a position on the Pittsburgh Pirate football team, later to become the Pittsburgh Steelers, and led the league in yards gained for that season.

Justice White received his LL.B. degree from Yale University Law School in addition to his J . D., graduating magna cum laude in 1946. From 1946 to 1947 he served as a law clerk to the Chief Justice of the United States Supreme Court, Fred M. Vinson. For the next fourteen years, he was a member of a law firm in

Denver, working mainly in the corporate law field. He was appointed Deputy Attorney General of the United States in January of 1961. On April 3, 1962 in the first appointment of a Supreme Court Justice by President John F. Kennedy, Byron R. White was selected to fill the vacancy left by Justice Charles Whittaker. For more than twenty years, Justice White has held this position with the dignity and integrity it necessitates.

In his address to the crowd present at the dedication ceremonies, Justice White also warned legal educators of "taking too narrow a view of their function," causing an overflow of the legal technician, and a scarcity of those legal scholars willing to continually challenge and interpret such basic precepts as the Constitution.

Another important figure in the dedication ceremonies of the new facility on the Duquesne campus was not physically present, but rather attended through his endless contributions to the University itself, through his goals and ideals, through the minds and hearts of his wife and friends, and finally through the dedication of the building to his memory.

That man is Edward J. Hanley, for whom the new law school building was named.

Although many newcomers to Duquesne University ask, Who was Edward J. H~.nley?, those who have been involved with the University, with the City of Pittsburgh, and with the man himself, are more than willing to explain. To begin, Edward J. Hanley was a civic leader, an industrialist, a former Chairman of the University's Board of Directors, and according to Robert J. Buckley, Chairman, President and Chief Ex-

ecutive Officer of Allegheny International, Inc., "one of the finest men I have ever known." The dedication of the building to the memory of Mr. Hanley was made possible through a $1.5 million donation to the University by Allegheny International, Inc. Edward J. Hanley proved himself to be one of those rare individuals who possessed the determination and drive necessary to succeed in the steel industry, while simultaneously expressing the compassion and dedication to the city in which he lived to make him one of its foremost civic leaders. Throughout his forty-six year affiliation with Allegheny International, he emphasized growth, quality, and a positive look to the future .

He realized the strong competition in the market from abroad and vehemently encouraged diversification and discovery of new techniques so as to always remain alive and competitive.

It was in the late 1940' s when Edward J. Hanley became a member df Duquesne University's Board of Directors. He quickly realized that this educational facility was in desperate need of direction, planning, and expansion. These were the needs for which Ed Hanley was ideally suited. During his more than thirty years of service to the University, twenty-two of the school's twenty-six buildings were either built, reconstructed or acquired. Under his leadership and commitment, the University steadily grew and developed into the successful institute it is today. The naming of the University's new facility for its school of law is a gesture of admiration, gratitude, and hope that more people (cuflttnued Ufl pu!!e 20)

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A GUIDE TO ACADEM,I C, PRACTICA'L AND SOCIAL SU'R V,I VAL

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moe his past summer a small group of law students began to plan this year's T orientation program. There was a concensus that the doctrines of fear and degradation which had been so adamantly professed in the past could no longer stand as an honest introduction for incoming students. It was time to assert the primacy of sanity and reason over blind submission and arbitrariness. It was agreed that too often in the past law students were encouraged to accept the depressive qualities of legal education and to make them bedfellows, for three rocky years in law school.

Henry David Thoreau, in chastising the unenlightened and unambitious once wrote; "We are acquainted with a mere pellicle of the globe on which we live.

Most have not delved six feet beneath the surface nor leaped as many above it.

We know not where we are. Beside, we are sound asleep nearly half our time.

Yet we esteem ourselves wise, and have an established order on the surface . ..

There is an incessant influx of novelty into the world and yet we tolerate incredible dullness. " During the planning of this year's orientation program, it was decided that an introduction to law school should do nothing less than ease the fears of the incoming students rather than frighten them. With this in mind, the Orientation program was structured to encourage students to participate in the Socratic method of self-teaching and classroom dialogue while impressing upon them the need to maintain a balance between academic, practical and social coordinates in this community. This new approach to Orientation was designed to free the students from any sense they may have had that there is only one method for survival in law school. This new approach was discussed with and well received by the administration, faculty members and students alike. I was allowed to gather their thoughts into a short essay, the text of which shall follow.

"Laws can never be enforced unless fear supports them."

Sophocles would probably not be offended if his words were used to describe the teaching of law. The first year in law school can be a terrifying experience, but from this morass of academic anxiety can surface great satisfaction and joy. It is the nature of the classroom situation which breeds this tension and yet, it is in this same arena that a law student can experience his first professional triumphs. In theory, we are to learn through dialogue. This dialogue is the Socratic method of teaching and learning and it is based on the premise that in the law, there are far more questions than there are definitive answers. To establish an intellectual rapport with the professor is the first real taste of being an advocate. It is a relationship which can breed great confidence, but it may come only with the price of sleepless nights, a restless stomach and a painful desire to see it all pass by. This apprehension should be treated as something healthy and as a force for motivation rather than debilitation.

With some measure of understanding for your upcoming encounters, we have gathered together some suggestions which might aid in your assault on this educational challenge.

These are strictly suggestions and our only credentials are that we are still here, and still sane enough to care to offer some suggestions.

As you begin your legal education, you will undoubtedly see your life divided among academic, practical, and social concerns. The primary objective should and will be the pursuit of academic achievement. Of course, a more pleasant experience can be found in one of the city's restaurants or nightspots when there is the urge to forget the books and revert to some good collegiate hellraising. Please use the suggestions on the following pages as a guide to

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The Common Law (Struggle Number One)

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In your first few days in law school, you will undoubtedly learn of Ihe Common Law. Handed to the Americans by the British, the common Law is the backbone of our modern legal code. Without steering Ihe analogy too far, it can be shown that in law school there is also a common law. It is codified in the plans and motives of each student and is punctuated with the do's and don't's of how to succeed in law school. These methods are handed do wn from class to class in the form of written outlines and verbal expressions of the best plans for mastering any particular topic . Like the Common Law, these ideas are a backbone, though they are flexible enough for each student, like each state in the Union, to develop a unique model of legal intellectualism and practicality.

There is a good deal of merit in establishing a plan of attack , and then adhering to it for as long as it serves you. There are great ideas to be garnered from upperclass students who can pass on these models.

It is perhaps not unwise to use these models with only minor personal changes. Justice Holmes, a man of great anecdotal ability once wrote: "We always exempt ourselves from the common laws. When I was a boy and the dentist pulled out a second tooth, I thought to myself that I would grow a third if I needed it. Experience discouraged this prophecy."

There is indeed no substitute for the traditional approach to legal education. A good combination of hard work in the casebook and in the classroom is essential. It is beyond these fundamental laws of study that the individual must find a comfortable and workable system.

The Case Method At Duquesne, law is taught by the "case method." We learn the legal principles by studying individual decisions of law and by analytically seeking the solutions to an infinite variety of legal hypotheticals . Cases are assigned on a daily basis and are then discussed in class . The professor begins by leading the student with a legal puzzle, a hypothetical and the students answer from their briefs, their notes and their common sense.

It is wise to establish the habit of "briefing" cases (outlining) before you try to discuss them in class, but briefing should not become a burden.

When the workload gets heavy, you may decide that detailed briefs are not necessary, and a shorter, workable outline will suffice. The important thing is that you learn to utilize individual decisions of law to formulate larger legal principles.

It is no secret that in law school, there are shortcuts. Upperclass students have advice on how to alleviate some of the pressures of day to day preparation. The advice that you get will vary, but undoubtedly you will learn to use materials other than the casebook in your long-range study plans. These may be outlines, prepared briefs or old exams. These may be generically known as the legal supplements. As the name suggests, these publications are to be used in conjunction with and not in place of the assigned materials .

The most scholarly of these materials is the "Hornbook." These are treatises written in textbook style which explore large areas of the law such as Torts and Property. Professors may suggest that you spend some time looking at these texts even though they are somewhat voluminous and "deep." At the opposite end of the spectrum is the "Nutshell." This is an encapsulated review of these same broad topics, written in a very unscholarly and easy-to-read style. Both the Hornbook and Nutshells are very helpful when a specific problem arises which requires explanation beyond that derived from the professor, lectures, or the casebook.

There are also a number of supplements published in outline form which are an aid to long-term study plans . Professors will invariably swear at them, and students will likely swear by them. The foremost in the field is the "Emanuels" series . Compiled by a Harvard law student while he was in school and eventually turned into a lucrative business, these books are a bible to some who find no time or no initiative to compile outlines of their own.

There are two series of bar review outlines which can aid the first-year student at exam time. They are published by BRC and BRI and are best used as a last-minute study review .

They are extremely general in content and are packaged as outlines . There are student representatives for these

companies who will undoubtedly give you their sales pitch during the course of the year, but even before you sign an agreement with these representatives you probably can borrow the books from upperclass students.

Better than those commercial outlines are study and review outlines which have been compiled by former Duquesne students . These outlines are passed from student to student and continually revised, and as they bri~g solace to nervous students, they achIeve immortality in the files of Duquesne scholars everywhere.

You may wish also to make your own outlines, either in conjunction with a study group or on your own.

But , be aware before you begin that this is an enormous task if you attempt to make thorough outlines.

Self-made outlines can be very profitable, for at exam time you will reap benefits from the time you devote to your outline. Casenote Legal Briefs are commercial briefs published to follow the casebooks. Some students use these briefs to relieve themselves of their daily briefing chores . Though they are not infallible, they are reliable enough if you read them along with and not in place of the actual casebook material. As you become more efficient at briefing your cases and developing your own shortcuts you will begin to find enough time to make your own outlines of your courses.

Study Groups The Socratic method is the system of classroom dialogue, designed to foster self-help or self-teaching . Consistent with this classroom philosophy is the institution of "study groups" for outside the lecture hall. As Duquesne's teaching philosophy could easily be seen as leaning towards the practical, study groups with an emphasis on deep legal reasoning might be somewhat counterproductive. In the past, students have found that group study is better spent when each student takes responsibility for a particular subject, and then as an "expert", he or she shares acquired knowledge in reports to the group. There are also groups who only meet at exam time to discuss common problems or to review old exams. The common law here is that group study or at least friendly academic discussions are highly encouraged, but certainly not mandatory. (continued On page IYj

5

The Age Discrimination In Employment Act And Its Applicability To National League Of Cities v. Usery rom the outset of this article it is perhaps best to clarify exactly what the intent of this evaluation is .

It is not the intention to focus merely an exegesis of the Age Discrimination in Employment Act (hereinafter referred to as ADEA) 29 USC 621 et. seq., but to formulate the courts' interpretations of the ADEA into a more comprehensive analysis determining the direction that the Court is headed in Tenth Amendment guaranteed states' powers, as recognized in National League of Cities v. Usery, 426 U.S. 833 (1976) (hereinafter referred to as National League of Cities) . In making such an overall evaluation it is necessary to lay the foundation by which to make the analysis; a reaccounting of the apposite case and statutory law will provide the necessary foundation.

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AN OVERVIEW

The extent of state powers the United States Supreme Court intended to preserve in National League of Cities remains a much belabored issue, leaving not only jurists, but also scholars and legislators to interpret the limits of the federal-state structure of government. As a result, the guaranteed states' power issue has aggrandized since the country's founding to the point that numerous federal legislative acts are now riddled with intricate questions of applicability to state and local Government authorities.

There is no doubt that historically the Supreme Court has vacillated in position as to the magnitude of powers states maintain under the Commerce Clause of the United States Constitution.' In 1976, with the upstaging of National League of Cities there arose the question of whether the Court intended to "call for a new crusade to wrest the Holy Sepulchre of States' Rights from the Caliphs in Washington under the banner of the Tenth Amendment," 2 or entrench in a final line of constitutional limitations that the plenary authority of Congress could not

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JAMES GASTON trespass across (of course a median as suggested by some scholars might also have been the intention).

Nonetheless, most federal C01!rts have consistently striven to uphold the federal legislation as Constitutional, distinguishing away most of National League of Cities ' potential weight of authority. Today, the case brinks on being little more than a remote and isolated case which creates boundaries for federal powers rarely approached .

Enter Equal Employment Opportunity Commission v. Wy oming, 514 F. supp. 595 (D. Wyo. 1981) (hereinafter referred to as EEOC v. Wyoming); the Supreme Court of the United States has granted review to hear the case. J How the Court opines in EEOC v. Wyoming may well determine the fate of National League of Cities - whether National League of Cities will again be viewed as the bastion for states' rights, or if in fact National League of Cities will draw yet another "distinguished " verdict, thereby burying the case in remoteness, perhaps for good .

National League of Cities involved Congress' attempt to impose minimum wage standards upon state and local employees by way of a 1974 amending enactment of the Fair Labor Standards Act of 1938. I n a 5-4 decision, Justice Rehnquist writing for the majority stated that there existed definite constitutional limitations upon the plenary authority of Congress when enacting Commerce Clause powers. ' More specifically, he espoused it as not within the authority granted Congress under the Commerce Clause to directly displace the states' freedom to structure in tegral government functions in areas where states and their political subdivisions have traditionally afforded their citizens, the Tenth Amendment thereby acting as a constitutional barrier and limitation to such Congressional legislation. Consequently, the majority opined that the Fair Labor 4

Standards Act's (hereinafter referred to as FLSA) imposition of minimum wage and overtime legislation, as applied to state and local government employees, overreached into the protected areas of states' rights.

In EEOC v. Wyoming, now before the Supreme Court, the central issue involves the constitutionality of the ADEA 6 as amended in 1974' to include state and local governments and subdivisions within the definition of "employer ." The ADEA is intend ed to preclude all employers who employ twenty or more employes from "discriminating" on the basis of age. Particularly, this means protecting persons from forced retirement when they are capable, competent and willing to work. The Act also recognizes there are bona fide occupational qualifications for certain jobs that except applicability of the Act. By definition, "employe" is restricted to those workers between forty and seventy years of age . EEOC v. Wyomin g was instigated when the state of Wyoming retired an unwilling park service law enforcement officer accord ing to its mandatory retirement policy at age fifty-five.

The Wyoming District Court asserted first, that the ADEA was unquestionably exercised under the Commerce Clause Powers of Congress, "the policies reflected .. . are exclusively couched in terms of commerce."8 In accordance with the Supreme Court decision of National League of Cities the Wyoming Court held that the ADEA could not apply to a state's system for retirement of law enforcement personnel for violation of the guaranteed states' rights in the Tenth Amendment. The Court held that the ADEA directly displaced the state's freedom to strUCture integral operations - financial employer-employe management of its own personnel. Furthermore, the Court stated that the regulation of state and local law enforcement personnel has traditionally been the function of the employing stale

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and/or subdivision thereof. Thus, such powers must remain as the sole responsibility of the state.

Secondly, the Court ruled that even if the ADEA was passed under the Equal Protection Clause of the Fourteenth Amendment as many courts contend, there was no impermissible violation of that amendment. The Wyoming Court cited as authority

Mass. Bd. oj Retirement et al v.

Murgia, 427 U.S. 307 (1976) in which the Supreme Court held that a mandatory retirement age of fifty-five for policemen met the Equal Protection "minimum rationale" test.

THE AGE DISCRIMINATION IN EMPLOYMENT ACT A multitude of courts have ruled on the question of ADEA applicability to state and local governments and resultantly, numerous dIverse interpretative reasonings have developed.

Unlike the Commerce Clause, there is no question that Congress may constitutionally enact legislation which intrudes into state matters under the Fourteenth Amendment.' The language of the Amendment expresses the clear intent for the Post Civil War provisions to apply especially to states. 'O No doubt proponems of the ADEA assert that Congress exercised the Act under Equal Protection powers, II while opponents regard the enactment as falling under the Congress' Commerce Clause powers. Unfortunately, the Congress failed to expressly state the particular area under which it intended to exercise its authority, thus leaving the door ajar for continuous speculation on the matter. In addition, the language in the Congressional Record tends to favor the Commerce Clause Power argument more 12 however the purpose of the ADEA easily lie~ within the bounds of the Equal Protection provision. I) Atop of this conflicting evidence concerning legislative intent is the position espoused by Justice Blackmun in his concurring opinion in National League oj Cities which states the real test to be performed is not that of determining legislative intent but involves a balancing of interests between federal and state governments. Several courts have adhered to this test for its apparent ease in application and avoidance of speculation.

I] THE ADEA UNDER EQUAL PROTECTION POWERS OF THE FOURTEENTH AMENDMENT The most numerous line of cases hold that the ADEA was intended to be exercised under the Equal Protection section of the Fourteenth Amendment. 14 This line of reasoning points out that important Similarities exist between Title VII (Civil Rights Act of 1964)'5 and the ADEA (Title VII was expressly exercised under the Fourteenth Amendment powers).'5 Often cited is Lorillard v. Pons, 434 U.S. 575 (1978) that states "there are important similarities between the two statutes, to be sure, both in their aim - and in their substantive prohibitions. In fact, the prohibitions of the ADEA were derived in haec verba from Title VII ... prohibitions of age discrimination were lifted from Title VI I." It is also noted that the Supreme Court in Fullilove v. Klutznick, 448 U.S. 448 (1980) held "the test of whether legislation is enacted pursuant to section 5 of the Fourteenth Amendment requires no talismanic intoning of the amendment."

From this guidance, combined with the reasonably expressed purpose of the legislation to prohibit arbitrary and discriminatory (government) conduct - courts have held vigorously to the Equal Protection envelopment. 17 Further, the courts have looked to the Equal Pay Act for additional guidance in considering the ADEA status relative to state and local governments. The Equal Pay Act (hereinafter referred to as the EPA), like the ADEA was not provided with any express statement as to the Congressional power it was to be exercised under. Similiar to that in the ADEA, the EPA legislative language suggests that Act be exercised under the Commerce Powers, however, the purpose clearly entails Equal Protection. Several courts have applied the EP A to state and local governments under section 5 of the Fourteenth Amendment, is thereby buttressing the Equal Protection argument for the ADEA. Finally, and most persuasive is the opinion rendered in Usery v. Dallas Indep. School Dis!., 421 F. supp. 111 (N.D . Tex. 1976) by Justice Hall who stated that in choosing between applying the Commerce Clause or Equal Protection powers "if (it) ... could

also be plausibly sustained by any other Congressional power, such as the Fourteenth Amendment courts would be bound to sustain it on the latter basis ... It does not matter that Congress relied specifically on the Commerce Clause. The maxim of judicial review is well established that enactments by Congress are presumptively constitutional. If a court can sustain legislation on the basis of any power in the Constitution, it will do so. One attacking a Congressional enactment must demons tate either that it lacks any plausible basis in the Constitution or that it violates a specific limitation in the Constitution."

Such should be the case for both the EPA and the ADEA so that each is undoubtedly constitutional in its applicability to state and local governments. ra] THE ADEA UNDER THE COMMERCE CLAUSE POWER A) Proponents of state and local government applicability: A number of federal iurisdictions have upheld the ADEA under the powers of the Commerce Clause so not to confront the "Legislative intent" quagmire. I' A tripartite test derived from Justice Rehnquist's majority opinion in National League oj Cities has been applied to several federal acts which dictate state and local government policy under the Commerce Clause. 2U The tripartite test holds that for the Tenth Amendment limitations to apply the Federal regulation must: I) Regulate the states as states 2) Address matters that are indisputably attribute[sl of state sovereignty. and 31 Comply with federal law that would directly impair their ability to structure integral operations in areas of traditional government functions.

(States are not immune from all federal regulations under the Commerce Clause merely because of their sovereign status.)21 Most courts that have applied the tripartite test to ADEA - state and local government cases - have held the third part of the test unsatisfied.

The courts assert that compliance with the ADEA would not directly impair the states' ability to structure integral operations in the areas of traditional governmental functions.

The courts maintain that the prescribed displacement of state power 7

is only indirect, for proscriptions are not absolute but instead yield to bona fide occupation qualifications. Further, unlike National League oj Cities there exist no debilitating financial burdens imposed on the state as a result of compliance. In fact, quite the opposite occurs since citizens may continue to contribute to the states well-being, rather than burden it.

Some courts have also determined that the second part of the tripartite test is unsatisfied. It is argued that the equal protection of all persons alike is not an indisputable attribute left solely to state sovereignty. Instead, courts aver that because the ability to discriminate solely on the basis of age cannot be considered an attribute of sovereignity necessary to a separate and independent existence, federal legislation is the preempting authority which should be enforced. Z2 (See footnote no. 23).

It should also be noted that various courts have ventured boldly upholding the ADEA under the Commerce Clause Powers as well as the Equal Protection section of the Fourteenth Amendment. 2' b) Opponents of State and Local Goverment Applicability EEOC v. Wyoming is the most outstanding case that holds the application of the ADEA to state and local governments unconstitutional.

Taylor v. Dept. oj Fish and Game oj the State oj Montana, 523 F. supp.

514 (D. Mont. 1981) follows the reasoning in EEOC v. Wyoming, however, besides this case there is a paucity of supporting cases in the ADEA area. In the EPA field several courts have held similarly to EEOC v.

Wyoming that National League oj Cities bars the application of the Act's provisions to state and local employers.2' EEOC v. Wyoming submits that the ADEA was solely exercised under the Commerce Clause Powers. The case focuses especially on the strong suggestive language contained in the Congressional Records. 26 Acknowledging the fact that no express statement is made by the Congress as to its exercising intent, the Court cites as authority Pennhurst State School vs.

Halderman, -, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1982), "because such legislation imposes congressional policy on a state involuntarily, and because it often intrudes on traditional state authority, we should not

quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment. Our previous cases are wholly consistent with that view, since Congress in those cases expressly articulated its intent to legislate pursuant to Section 5."27 This Supreme Court language appears to present an unreasonable burden in overcoming the presumption against Fourteenth Amendment applicability, especially since the long history of case and statutory law dictates that legislation should be upheld as constitutional if at all possible to plausibly sustain. 2R In addition, the EEOC v. Wyoming opinion asserted that the basic inconsistencies applied by the legislature to its age discrimination and retirement policies demonstrate the intent to exercise Commerce Powers and not Equal Protection powers.

The Court particularly examined the mandatory retirement age of fifty-five for federal law enforcement officers and firefighters. 29 It should be noted that the similarities in case between the situations and circumstances are questionable. Also one wonders why the exercise of the Act must be a mutually exclusive one, it appears most logical to exercise the Act under a combination of Constitutional powers.

EEOC v. Wyoming contends further that even if the ADEA was passed under the Fourteenth Amendment, the ADEA cannot apply to state and local governments since there exists no impermissible violation of that amendment's equal protection provisions. The Court cited as authority Mass. Bd. oj Retirement et al v. Murgia, 427 US 307 (1976). The Murgia case held that the establishment of a mandatory retirement age of fifty for police officers was within the bounds of the "minimum rationale" test and therefore constitutional under the Equal Protection provision of the Fourteenth Amendment. It must be vigorously argued though, that there are distinguishable factors between EEOC v. Wyoming and Murgia. First, the Murgia case decided the question of Equal Protection in respect to direct Constitutional applicability. EEOC v. Wyoming on the other hand described the application of federal legislation as prescribed to the Constitution. Thus, the focal point in EEOC v. Wyoming

should be on the applicability of the ADEA; the apposite test for constitutionality In this case must be directed to the validity of the legislation, not to the employer.

Second, the Murgia case dealt with the constitutionality of a bona fide occupational qualification which, if present, may except an employer from the ADEA. The issue of Equal Protection as pertaining to the ADEA itself was never considered.

Consequently, the strength of courts' argument on the Fourteenth Amendment's applicability to the ADEA appears especially dubious.

III] THE ADEA UNDER THE BALANCING OF INTERESTS APPROACH Perhaps the clearest test for handling conflict between federal and state powers is by the "balancing of interests" approach expressed by Justice Marshall in this dissenting opinion in Murgia, and by Justice Blackmun in his National League oj Cities concurrence. This approach has had considerable support from the courts. JO The general factors weighed are: the degree of federal intrusion into state matters, the exigent national circumstances justify such an intrusion, and the traditional local nature of the state activities that were to be nationally regulated . Many courts construe National League oj Cities itself to require a balancing of the state and federal interests in employment policies and practices, even when integral state governing functions may be affected. Therefore, Congress may constitutionally regulate discriminatory state employment practices under the Commerce Clause or Fourteenth Amendment where the national interest in employment significantly outweighs the states' interest in discriminatory employment policies and practices.]I The greatest advantage in adopting the balancing approach is its blanket conformability to the continuously changing public policies.

IV] COUNTING THE JUDGES By far the most intriguing questions that arise out of the entire ADEA situation is how exactly the judges will rule in the EEOC v.

Wyoming case, and why the court even considered to hear such a case that involves infinite "ripple effect" ramification of such magnitude.

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National League of Cities was decided by a 5-4 count, Justices Burger, Powell and Stewart joined with Rehnquist in his majority opinion, and Justice Blackmun concurred on the grounds of the balancing test.

Justices Brennan, Marshall, White and Stevens dissented. Currently, the Court remains the same except Justice O'Connor sits in place of Justice Stewart. Educated speculation would presume Justice Rehnquist will continue to advocate protective states' rights in line with his opinion in National League of Cities, especially in light of cryptic concurrence in Hodel v. Va. Surface Mining and Reclamation Assoc., 452 US 264 (1981) "One of the greatest fictions of our federal system is that Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people ... one could easily get the sense from the Court's opinions that the federal system exists only at the sufferance of the Congress." It may also be presumed that Justices Burger and Powell will also concur with Justice Rehnquist as in National League of Cities, and that Justice O'Connor will maintain her conservativism and side with her law school alumnus. It should be noted though, that because this case deals with such a sensitive Equal Protection issue, anyone of these members may be swayed away fFOm states' rights protectivism for social public policy reasons, the presumption, however, will be otherwise.

It may also be presumed that the positions of the dissenting Justices in National League of Cities will remain unchanged. Therefore, the key interest is on which side of the fence Justice Blackmun will stand. Justice Blackmun has demonstrated a liberal approach to applying Eaual Protection pOlicy, and although he concurred in National League of Cities, he clearly upheld the balancing approach test. It is doubtful whether the Justice will find the states' rights interest outweighing the National Equal Protection-Age Discrimination Interest.

Consequently, it must be presumed that the ADEA will be held constitutionally applicable to state and local governments. As a result, one of the last "chunks" of authoritative influence will be removed from National League of Cities. If the Court

chooses to uphold the ADEA under 29 U.S.c. 201 et. seq. the Commerce Clause, then clearly , U.S. Constitution Art. I & 8 cl. 3.

National League of Cities will have 6 29 U.s.c. 62 et seq. been disparaged within its own 7 29 U .S.c. & 631, Pub. L. 93-259, forum. Upon the Court's decision that & 28 (a) (1)-(4), April 8, 1974, 88 the ADEA is exercised under Equal Stat. 74.

Protection, future courts will rubber- 8 E.E.0.c. v. Wyoming, 514 F. neck to the highest degree to find Supp. 595 (D. Wyo. 1981); see Fourteenth Amendment powers withH.R. Rep. No. 805, 90th Conin commerce legislation; the bottom gress, 1st Sess. (1967), U.S. Code line is that National League of Citie.l Congo & Admin. News, 2213 and and the entire protective states rights S. Rep. No. 690, 93rd Cong., 2nd field will easily be circumvented by Sess., 55 (22 Feb. 1974); H. R. Rep. national legislation. In conclusion, it No. 913, 93rd Congo 2nd Sess. (15 appears that by granting review Mar. 1974), U.S. Code Congo & of EEOC v. Wyoming, the Court Admin. News, 2811 and Congo has little alternative but to underRecord Vol. 120 (1974). cut National League of Cities, the 9 ex Parte Va. 100 U.S. 339 (1880). only remaining question is by how 10 Fitzpatrick V. Bitzer 427 U.S. 445 (1976). much.

There is one possible avenue by II U.S. Constitution, section 5, 14th which the Court could both protect Amendment, National League of Cities and pro- 12 see footnote no. 8. mote the purposes of the ADEA, IJ E.E.0.c. v. ELROD, 674 F.2d however, the additional ramifications 601 (7th Cir. 1982); 118 Congo might be startling. The Court could Roc. 15894, 15895 (1972). hold the ADEA exercised under the 14 E.E. 0. C. V. County of Calvmet, Commerce Powers, thus applying 519 F. Supp. 195 (E.D. Wis. 1981); and preserving National League of Arritt V. Griswell, 567 F. 2d 1267 Cities. Further, the Court could then (4th Cir. 1977); Johnson V. Mayor follow Justice Marshall's dissenting and City Council of Baltimore, 515 opinion in Murgia which opines that F. Supp. 1287 (D. Md. 1981); Carthe minimum rationale test be abolpenter V. Com. of Pa. Liquor Conished for questions of age discrimitrol Bd, 508 F. Supp. 148 (E.D. Pa. nation. The Court would recognize 1981); E.E.0.c. V. Pa. Liquor that persons at a particular age either Control Bd, 503 F. Supp. 1051 are a suspect class (to recognize the (M.D. 1980); Marshall V. Dela. right to work as a fundamental right River & Bay Auth., 471 F Supp. 886 would be totally unrealistic), or need (D. Del. 1979); Knight V. County additional protection by way of a of Dane, slip opinion, 80-c-385 stricter (perhaps middle of the road) (W.O. Wis. May 18,1982); Adams V. James, 526 F. supp. 80 (M.D. test than that which "minimum" rationale provides. It is doubtful Ala. 1981). whether many state employers would " Civil Rights Act of 1964, 42 pass this stricter test, and in fact, is U.S.c. 1983 et seq. doubtful whether the ADEA would 16 Fitzpatrick V. Bitzer, 427 U.S. 445 be needed at all. Nonetheless, it is vir(1976). tually unthinkable that the Court 17 Ex Parte Va., 100 U.S. 339 (1879) would move in this direction, such especially interpreted broad abstracts being left for mental exerpowers of the Equal Protection cises within the confines of academia.

Clause, section 5 of the Fourteenth FOOTNOTES Amendment to effectuate its goals.

1 Hammer v.

Dagenhart, 247 U.S. "Whatever legislation is appropri251 (1918); Carter v. Carter Coal ate, that is, adapted to carry out Co., 298 U.S. 238 (1936); Marythe objects of the amendments land v. Wirtz, 392 U.S. 183 (1968); have in view, whatever tends to enFry v. U.S., 421 U.S. 542 (1975); force submission to the prohibiNational League of Cities v. tions they contain, and to secure to Usery, 426 U.S. 833 (1976). all persons the enjoyment of per2 Usery v. Dallas Indep. School fect equality of Civil Rights and Dist. 521 F. Supp. 111 (N.D. Tex. the equal protection of the laws 1976). against State denial or invasion, if J 50 U.S.L.W. 3547 (1982). not prohibited, is brought within 4 Fair Labor Standards Act of 1938, (conlinued on page /5)

9

Private Land Today Public Property Tomorrow

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t ittle did the English barons who convinced King John to accede to the Magna Carta on that summer's day in 1215 realize that one particular concept contained in that document would reach across the centuries and touch such diverse projects as Pittsburgh's redevelopment of Gateway Center, Point Park, the Lower Hill District, the East Street Valley, and Market Square; along with a maggot farm in Montana and Oakland AI Davis' Raiders in California. That concept is the one of eminent domain.

Eminent domain is "the power of the sovereign to take property for public use without the owner's consent.'" The power to take private property for public purposes has been used since Roman times, although the term itself appeared only in the 17th century.2 Eminent domain became well established in England with the king being able to enter private land to erect defenses or to seize provisions for his varied uses. Usually this occurred without compensation to the owner.

Although our founding fathers recognized the power of government to take private property, the power was limited, exercised primarily for the establishment of transportation links such as canals, roads and railroads .

Eminent domain must be distinguished from a government's police power. Police power is the "regulation of such property to prevent the use thereof in a manner that is detrimental to the public interest." J The exercise of police powers requires some sort of control to protect health, safety, or welfare and, importantly, does not require compensation to the owner. Additionally, police power has as its basis specific statutes or local ordinances. Eminent domain, on the other hand, requires that a public purpose be served as well as just compensation to the owner of the property taken. A public purpose is said to be that which enables a government to carryon its governmental functions to preserve

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BY WILLIAM R. FRIEDMAN health, safety, or welfare. 4 "Eminent domain is within the sovereign power of the state, and it needs no additional justification." l Even though the power of government to exercise the right of eminent domain is not expressly given by either the federal or state constitutions, "the courts have held, nonetheless, that the power is an inherent right of sovereignty."6 The United States Constitution, in the Fifth Amendment, provides that private property shall not be taken for public use without just compensation, while the Fourteenth Amendment provides that no state shall deprive anyone of property without due process. In other words, the condemnor must accord the condemnee due process which requires that the condemnee be given adequate notice with the opportunity to be heard as well as just compensation for any losses.

What Can Government Take?

Governments, supported by the courts, are permitted to take both tangible and intangible property; both real and personal property. It must be kept in mind, that although not by eminent domain, governments can also exact personal services such as jury duty and military conscription. Governments have been able to take by "excess condemnation" more property than is actually necessary for a public purpose and governments have also been able to take property for aesthetic reasons. 7 Although there are a large number of eminent domain cases available for analysis, the purpose here is to review a representative sample of cases in order to provide an overview of typical circumstances in which a government will be judicially upheld in its taking of private property.

In the case of Pennsylvania Coal Co. v. Mahon et.al. 260 U.S. 393 (1922), the owners of property had a

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ri.-:ed dating to 1878 which permitted the coal company to mine under their property without regard for the consequences to the surface or the attached structures. The Pennsylvania legislature in 1921 enacted legislation designed to prevent such mining in order to avoid subsidence. The United States Supreme Court reversed the Pennsylvania Supreme Court. Justice Holmes, writing for the majority, said that to prohibit the mining of "certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it." Id. at 414. In other words, such a law would "take" the coal of those who might eventually mine it, therefore, the law was unconstitutional. Justice Brandeis, in his dissent, pointed out that to mine beneath the surface when structures are above is creating a danger to the community and even if it was not an immediate danger, the . resulting diminution of value of the property constitutes a "taking." Id. at 419. The majority disagreed and concluded by saying that "so far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving t hem greater rights than they bought." Id. at 416 . Dimunition of value or not, apparently a deal is a deal!

The well-known case of Griggs v.

Allegheny County, 369 U.S. 84 (1962), concerned a de facto taking of an air easement. "An inverse condemnation or de facto taking occurs when the courts hold that when the effect of the governmental action is tantamount to the 'destruction, injury, or damage' of private property for which just compensation must be paid even though no formal condemnation proceedings have been instituted . " & Here, the U.S. Supreme Court reversed the Pennsylvania 3upreme Court holding that low flying planes at the Allegheny County Airport which caused the proper.IY owner to become nervous and dIStraught , unable to sleep, and whose

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vibrations caused damage to the house, constituted a de facto taking of an air easement for which the owner must be compensated. Id. at 87. Justices Black and Frankfurter, dissenting, did not dispute the fact [hat a taking had occurred but felt [hat the Civil Aeronautics Administration rather than Allegheny County should be responsible for compensation insofar as the County was only acting pursuant to federal requirements. Both the majority and the dissent agreed that when government acts in such a way that one's property is unusable or when one's life is made quite miserable, a compensable taking has occurred .

In Snyder v. Railroad Borough, Pa.Cmwlth . , 430 A.2d 339 (1981), the municipality had zoned a portion of the borough including the Snyder property in such a manner to preclude residential development. The Commonwealth Court said that such a zoning ordinance, which reduced the va.ue of Snyder's property, amounted to a "taking" by the borough and the owner must be compensated, Id. at 345.

Interference with access to a restaurant truck stop caused by the widening of a road by the Pennsylvania Department of Transportation was the subject in Tracy v. Commonwealth of Pennsylvania Pa.Cmwlth., 402 A.2d 286 (1979). The Commonwealth Court ruled that since the reconstruction of the road effectively denied access to the facility, severely reduced the value of the property and thereby denied income to the owner, that the property was constructively taken. Id. at 288.

In a more recent, if not more controversial case, the California Supreme Court determined that the Oakland Raiders football team could be classi fied as property which the City of Oakland could condemn by way of eminent domain. City ofOakland v. Oakland Raiders Sup., 183 CaI.Rptr., 673 (1982). The City sought to prevent the owners of the team, Allen Davis, Edward W. McGah, and other limited partners, from moving the team to Los Angeles. The City argued that "the uniqueness of the franchise and the team's identity with the city - its home games have been sold out for more than a decade - show how much the city and the team are intertwined. "9 I t was this connection with

an already recognized public interest in recreational activities on which the city based its argument.

The California Supreme Court recognized such a public interest saying that "public use is [that] which concerns the whole community or promotes general interest in its relation to any legitimate object of government, [Although] it is not essential that the entire co,nmunity or even a considerable portion thereof shall directly enjoy or participate in an improvement in order to constitute a public use ." Id. at 674. The Court clarified its overall philosophy in stating that it was not "concerned with the economic or governmental wisdom of the City'S acquisition or management of the Raiders' franchise, but only with the legal propriety of the condemnation action."

Id. at 681.

The Court remanded the case for further proceedings, but not before Chief Justice Bird, concurring and dissenting in part, raised an issue which she labeled "creeping statism" wherein a city could arbitrarily and without much justification condemn nearly any business which threatened to move. Id. at 684. Perhaps, her concern is far fetched, but then again who would have thought a city would seek to exercise eminent domain over an NFL franchise? As a practical matter, the Raiders franchise is now a resident of Los Angeles, and not many are taking bets that it will move back to Oakland.

Pennsylvania's Law

The early government in Pennsylvania first granted the right to exercise eminent domain to those companies formed to construct canals.

Later, companies established to build toll roads and then railroads were granted the power of eminent domain. This was possible because in Pennsylvania the power is vested in no one in particular.' 0 By the year 1700, Pennsylvania property owners were to be compensated for losses in an amount which was determined by six persons appointed to view the land."

The Eminent Domain Act of 1964, taking five years to travel the legislative route, was the first codification of Pennsylvania legislative enactments and judicial decisions.

Pennsylvania's eminent domain law is that which governs the exercise

of condemnation. The term, "condemn" includes the taking, destroying, or injuring of private property by authority of law for a public purpose.

The "condemnee" is the owner of the property interest but it does not include a mortgagee, a judgment creditor, or other lienholder. The "condemnor" is the agency which is taking, destroying, or injuring the property. '2 Procedurally, condemnation actions are equitable in nature, are in rem proceedings, and are brought in the court of common pleas which has exclusive jurisdiction in all condemnation cases.' J Condemnation actions are special proceedings which are not subject to the strict rules of pleading or rules of civil procedure but rather "are regulated entirely by the statute under which they are brought.""

Eminent domain is effective only by the filing of a declaration of taking which includes, among other information, a description of the purpose of the taking, the description of the property to be condemned as well as a statement as to how just compensation will be made.

The condemnee is given thirty days in which to file preliminary objections to the taking. Preliminary objections are the only avenue through which one can object to the right of the condemnor to take, the sufficiency of security required, other procedures of the condemnor, or the declaration of taking itself. "Failure to raise these matters by preliminary objections shall constitute a waiver thereof." I l The burden is with the condemnee at this point, insofar as "all objections, other than to the amount of the award, raised by the appeal shall be determined by the court preliminarily." ,.

In the matter of the Condemnation of the Premises at 130 Court Street in the City of Reading, Pa Pa.Cmwlth., 388 A.2d 1108 (1978), although the appellant stated in the preliminary objections that the property in question should not have been designated as blighted, the Commonwealth Court determined that insufficient evidence was presented in the preliminary objections to support such an objection. "Appellant therefore is presumed to have waived his right to further objections." Id., at 1110.

Goodwill Industries challenged a similar designation in City of Harris(conlinued Oil page 16)

11

An Interview With: Dean J1o h'n J. Sciullo l

When the graduating class of 1982 from Duquesne University School of Law was informed during their commencement exercises this past spring that Professor John Sciullo had been selected to serve as Dean of the new law school, they gave him a standing ovation. Their response reflects the sentiments of students and alumni alike towards the man who will lead the law school into a new era. Dean Sciullo recently took time to answer a few questions about his role as dean.

Q. What do you perceive to be your major goals as dean?

A. I think to make it a good, competitive law school - and that's a goal all by itself. And that's to be able to meet the changes for the next few years. What we do now for the next year or so really sets the pattern for the next twenty years. We've been going through stages and this is a different stage. And so it's important that we remain competitive.

It's important that we have good, diverse faculty members who are good teachers. That's been our success in the past and we've got to capitalize on that. We also have to remain competitive so that we can attract diverse students. That doesn't mean just the students with high LSA T scores or high Q PAs, but a student body that represents the community and that's going to go out and serve the community. We're not a weahh oriented law school, we're a people oriented law school, so we have to be concerned about people.

Q. What do you perceive to be your main responsibilities as dean?

A. The dean's job is basically to provide the leadership for the school, to assist in establishing policy, but most of the policy for the law school is set by the faculty. So the dean has to carry out the administrative responsibilities consistent with those policies.

As, far as establishing policy for the school, the dean is a member of the 12

DEAN JOHN J. SCIULLO faculty. Once those policies are established, then the interpretation and implementation is the responsibility of the dean and the administration.

1 think that any curriculum requires constant review. The one thing that stands out in our curriculum and has made us somewhat unique is that it is highly structured. And I think a curriculum that has alot of required courses is good for us and for the times. The basic elective curriculum is somewhat misleading to the students.

Our curriculum that forces our students to be exposed to a variety of area is good for the students and is good for the profession.

I would say 90070 of the people who come to law school do not know what they're going to do when they graduate. So the fact that we require everyone who comes to law school to take a course in evidence, a course in corporations, or tax, or estates - I think that speaks highly of us. That doesn't mean we've hit Utopia.

think the highly structured CUrriculum is peculiar to Duquesne and I think it has served us well. So from that point of view, I'm a traditionalist as far as the curriculum is concerned.

Q. What do you think Duquesne's present strengths and weaknesses are?

A. I think Duquesne's strength is its diversity. The strength is that we have a good faculty. A faculty that's diverse, a faculty that's interested, a faculty that's friendly. I know some students may have difficulty understanding that, but compared to other law schools in the country, Duquesne's faculty is a very friendly, outgoing group. I think our faculty represents people with different backgrounds, with different ideas about education, different methods of teaching. I think that's good for the student. Our strength is our faculty and our responsibility as a law school is to serve the community by providing them with good lawyers.

And this school has done it for a long time and I think we can continue to do that. We've competed with everyone since the beginning of this school and I think we've demonstrated that we belong and we do serve a need and we fill a gap that exists in this general area.

Q. What areas do you think need improvement?

A. I think the weakness is basically not trying to do something. It's attempting to stand still. If you stand stm as a legal educator, you fall behind, that's the weakness. As long as you're always trying to deal with the problems and trying to solve the problems of the time and predict the problems of the future, it seems to me you're alright. Once you start to say, "Well, okay, I've solved most of the problems and now I'm going to kind of enjoy it for the next couple of years," then you're going to fall behind. So complacency is the problem.

Q. Do you plan to make any changes in the curriculum?

A. Any changes that are going to be made will be made by the faculty. I may be able to prod them in one direction or the other. It's hard to believe, but the policies that a law school has are the policies made by the law school faculty. They're a very powerful group. The dean does not make those policies. So the curriculum is going to be primarily what the faculty wants.

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A ASSOCIATE DEAN Paralleling the reconstruction and genesis of the exterior structure of Duquesne University School of Law is the reconstruction of its interior structure and its administration as well. As part of this interior face-lift is the promotion of long-time professor Patrick J. Basial to the position of Associate Dean . Dean Basial views his role in the administration as one of "sharing the duties and responsibilities of the Dean." Both Dean John Sciullo and Associate Dean Basial hope that a program of sharing access to the inner-workings of the school will eliminate the problem of inertia if the Dean himself is unavailable.

K INSIDE: When questioned as to his personal goal for his first year in this new position, the Associate Dean replied that he wishes to, above all, learn the job and perform it efficiently. Then with a surge of optimism he added, "It's going to be a great year!"

DIRECTOR OF ADMISSIONS It is appropriate that the person chosen to fill the position of Director of Admissions at Duquesne University School of Law is Professor Raymond Sekula, who received both his Bachelor and J uris Doctor degrees from this University. In addition, he has served as a member of the law school faculty for the past fifteen years.

As Director of Admissions, Professor Sekula seeks to maintain the excellent quality of students who have consistently been admitted and graduated from the University's Law School. He hopes to institute various new recruiting programs so as to attract the most qualified individuals from colleges and univerSIties throughout the Northeast.

He is confident that this objective can be attained through the "vigorous recruiting campaign" that the law school's new administration has decided to pursue.

Already, Professor Sekula has made recruiting visits to colleges in: West Virginia, New York, Ohio, Connecticut, and New Jersey. Furthermore, he notes that the law school will sponsor an "open house" so that prospective law students may attend classes and meet the students.

Professor Sekula is especially confident that the introduction of an early admissions program (3-3 Program) for the law school "will entice outstanding undergraduate students to attend Duquesne University'S School of Law." A Duquesne undergraduate student enrolled in the 3-3 Program will be able to attend the law school following his or her third year if that individual is able to maintain certain established academic standards. Professor Sekula is hopeful that the 3-3 Program can be expanded in the future to include other colleges.

There is no doubt that Professor Sekula's appoi:1tment as Director of Admissions will maintain and continually improve the quality of legal education at Duquesne University'S School of Law. Through his proposed new innovations in recruitment of excellent quality students Duquesne University School of Law will remain a highly noted educational institute.

NEW FACULTY According to Dean Basial, his new responsibilities that accompany this position are additional to those he holds as a full-time faculty member.

Speaking also as a faculty member, Dean Basial views the new classrooms as the most positive aspect of the facility . He notes that the amphitheater-style classrooms in the new building comfortably seat 120 stu" dents each, providing a key asset and an atmosphere more conducive to both teaching and learning.

The primary objective of recruiting, as Professor Sekula sees it, is to facilitate extensive exposure of Duquesne University School of Law to areas outside of this region, particularly in the Northeastern states.

Duquesne University School of Law welcomes the following new additions to the faculty.

Mr. Robert S. Barker a native of Pittsburgh received his Juris Doctor from Duquesne University School of Law in 1966. He also holds a B.A. in History and Political Science and an M.A. in History from Duquesne University.

Mr. Barker began his legal career as a U.S. Peace Corps Volunteer to the Republic of Panama. Working primarily in the area of urban prob13

lems he is credited with developing a legal service program for the squatter settlement of Panama. Upon returning to the United States, Mr. Barker worked as a Staff Attorney for Neighborhood Legal Services of Allegheny County. Later he served as Director of Program Service of Pittsburgh Model Cities Program and Assistant County Solicitor for Allegheny County . Notably during this time he also taught at both the University of Pittsburgh and Duquesne University Law Schools as an adjunct faculty member.

From 1976 through 1977 Mr. Ricci worked as a judicial clerk for Justice Louis L. Mandirina of the Pennsylvania Supreme Court. He then accepted a position as an associate with the firm of Berkman Ruslander Pohl Lieber & Engel in Pittsburgh. There he specialized in corporate law with a major emphasis on tax planning. Additionally, Mr. Ricci has been an adjunct faculty member at Duquesne University School of Law. Mr. Charles L. Convis, originally from San Marcus, Texas, received his undergraduate degree, a B.S. in Civil and Architectural Engineering and a Ph.D. in Educational Psychology from The University of Texas. He received his J.D. from Harvard Law School in 1956.

Mr. Ronald Ricci received his J.D. from Duquesne University School of Law in 1976. He also received his B.S. in Business Administration from Duquesne University in 1973 with a major in accounting.

"One step at a time" is an old adage with which we are all familiar. Mr. Frank Yining Liu, head law librarian at Duquesne, has, under the guidance of Dean John Sciullo, taken that timeless advice to heart. The new law library, the backbone of the Law School, has had to deal with the universal difficulty facing today's academic institutions, that of limited resources and has managed to come out ahead.

Among the new benefits being offered to students are expanded circulation hours, from 8:00 A.M . until 12:00 P.M., as compared to 8:30 A .M. to 10:00 P.M. in the old library, a new electronic surveillance system which prohibits the unrecorded removal of any of the library's books, and an increase in library volumes to 95,000.

Mr. Liu believes that the Law Library has the capability of becoming "a unique and distinguished legal research center that not only meets the needs of the faculty, students and the Duquesne community in general, but also the needs of the alumni and the legal community of Allegheny County." He also feels that the library will distinguish itself through the "quality of its collection, excellence of service which it provides, and by the inspiration it may bring about for people who are interested in seeing the advancement of the legal profession and the science of law." (continued on pOlle /8)

Mr. Convis' credentials illuminate a strong background in law and psychology. His work includes private practice as the founder and managing partner in Convis Kennedy and Shaw of California, Deputy District Attorney in Marin County, California and legal analyst for the Standard Oil Co . In addition he was an adjunct instructor at San Francisco Law School. Prior to coming to Duquesne, Mr. Con vis was an instructor at Southwest Texas State University where he taught graduate paralegal programs.

Mr. Convis has a distinct research interest in the interrelationships of law and psychology. His publications include coauthorship of Motivations and Emotions: and Perceptions and

Psychophysics.

14

LAW LIBRARY

AGE DISCRIMINATION (fO il lin IJed from page 9)

the domain of Congressional power. " " Usery v. Charleston County School Dist., 558 F. 2d 1169 (4th Cir. 1977); Usery v. Allegheny County Institution Dist., 554 F. 2d 148 (3rd Cir. 1976); Usery 1'.

Dallas Independence School Dist., 421 F . Supp. III (N.D. Tex. 1976) .

I. Usery vs. Bd. of Education of Salt Lake City, 421 F . supp. 718 (D. Utah 1976); Kenny v. Bd. of Trustees of Valley County School Dist., slip opinion no. CV-81-1486F (June 25, 1982); McCroan v.

Bailey, slip opinion CV 181-247 (D. Ga. June 29, 1982); Bleakley v.

Jekyll Island-State Park Auth., 536 F. Supp. 236 (S.D. Ga. 1982).

20 see: Usery v. Bd. of Education of Salt Lake City, 421 F . supp . 718 (D. Utah 1976) - ADEA; E.E. 0. C v. Wyoming, 514 F. supp . 595 (D. Wyo . 1981) - ADEA; Fry v.

US., 421 U.S . 542 (1975) Economic Stabilization Act of 1970; Christenson v. Iowa, 417 F. supp. 423 (N.D . Iowa 1976) EPA; Hodel v. Va. Surface Mining & Reclamation Assoc., Inc. et aI, 452 U.S. 264 (1981) - Surface Mining Control and Reclamation Act of 1977.

Maryland v. Wirtz, 392 U .S. 183

22

23

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(1968); Fry v. US. , 421 U.S. 542 (1975).

Kenny v. Bd. of Trustees, slip opinion No. CV-81-148-GF (June 25, 1982); McCroan v. Bailey, slip opinion No . CV-181 -247 (June 29, 1982); Marshall v. City of Sheboygan, 577 F. 2d I (7th Cir. 1978).

Dissatisfying the second part of the tripartite test appears an ingeniously manipulative argument, however, somewhat off point and therefore inconclusive. Apparently, what these Courts have done is redefine the legal questions to get the desired result. By premising discrimination as an undesired attribute initially, they have answered their own question as to the need for discrimination within State and Local governments. The question presented by the tripartite test should not be a predetermined judgement on age discrmination, but the determination on the merits of State and Local government control of jobs (as characterized by State Sovereignty).

Aaron v. Davis, 424 F. supp. 1238 (E.D. Ark. 1716); E.E.O.C v.

City of Minneapolis, 537 F. Supp.

750 (D . Minn. 1982; E.E. O. C v.

Elrod, 674 F. 2d 601 (7th Cir. 1982).

Adams v. Richland County School

Dist., slip opinion No. 75-1130 (D. S.c. April 29, 1977); Usery v.

Owensboro-Daviess County Hosp ., 423 F. Supp. 843 (W.D. Ky .

1976); Howard v. Ward County, 418 F. Supp. 494 (D. N.D . 1976).

2. see note 8 .

27 Katzenbach v. Morgan, 384 U .S. 641 (1966) - Voting Rights of 1965; Oregon v. Mitchell, 400 U.S. 112 (1970) - Voting Rights Act Amend . of 1970; Fitzpatrick v.

Bitzer, 427 U.S. 445 (1976) - 1972 Amendment to the Civil Rights Act of 1964.

28 Usery v. Dallas Indep. School Dist ., 421 F. Supp. III (N .D. Tex. 1976) .

2. 5 U.S.c. & 8335 (b), 8336 .

30 Usery v. Bd. of Education of Salt Lake City, 421 F. Supp . 718 (D. Utah 1976); Fry v. US., 421 U.S. 542 (1975); Maryland v. Wirtz, 392 U.S . 183 (1968); Hodel v. Va. Surface Mining and Reclamation Assoc. , Inc et al., 452 U.S. 264 (1981); McCroan v. Bailey, slip opinion CV 181-247 (June 29, 1982); Usery v. Dallas Indep.

School Dist., 421 F. Supp. III (N.D . Tex . 1976; Marshall v. City of Sheboygan, 577 F . 2d 1 (7th Cir. 1978) 31 Usery v. Bd. of Education of Salt Lake City, 421 F. Supp . 718 (D .

Utah 1976).

Summer Law Study Abroad School of Law

University of Santa Clara - 1982

Hong Kong Emphasis on Hong Kong as the commercial focus for U.S . trade with China and Southeast Asia. Subject areas include financing and taxation of international transactions through Hong Kong, commercial arrangements in Southeast Asia, and the emerging commercial structure of the Peoples Republic of China.

Internship possibilities.

Oxford, England

J

Students live in 15th Century Oxford College and are taught by Oxford Professors in Oxford Tutorial Method. Course offerings include Jurisprudence, European Economic Community Law, Legal History and various comparative courses.

Strasbourg, France For further information, write: Director, Summer Overseas Programs School of Law University of Santa Clara Santa Clara, CA 95053

Emphasis on International Human Rights. Public International Law taught by recognized experts from around the world. Affiliated with International Institute of Human Rights. Courses in Law of Treaties National and International Control of Multi-national Corporations.

Internship possibilities.

To reserve your place, please include $100 deposit.

Tokyo,Japan Emphasis on U.S.-Japanese Trade .

Courses in Japanese Legal System, Japanese Business Law, Regulation of U.S.-Japanese Trade, Internships available with Japanese law firms and corporate law departments.

15

PRIVATE LAND TODAY ••• (continued from page / J)

burg v. Goodwill Industries of Central Pennsylvania Pa.Cmwlth., 373 A.2d 774 (1977). Goodwill properly filed its objections, but the court nonetheless found that while "Goodwill's buildings may themselves be structurally sound it is not sufficient to prevent their condemnation when they are located in an area properly determined to be blighted." Id. at 776. Not only must a condemnor and condemnee address procedural matters but substantive ones as well.

Critical in this area is the certification of an area as blighted.

Whether a property or an area is "blighted" is often a matter of opinion. A judicial determination made in recent years explains that "blight signifies that type of condition which could generally be characterized as urban obsolescence and decay which is beyond the salvage by private rehabilitation and requires relatively large scale action by governmental entities." Elsesser Condemnation 12 D&C 3d 25 (1979).

EMINENT DOMAIN AND URBAN REVITALIZATION

Often working in concert with eminent domain in Pennsylvania is the Urban Redevelopment Law which was originally enacted in 1945 to promote the elimination of blighted areas and supply sanitary housing, create public bodies known as Redevelopment Authorities, authorizing them to engage in the elimination of blighted areas, to plan and contract with private and public entities to achieve this goa\. Redevelopment Authorities are authorized to acquire real property by eminent domain; reimburse displaced persons for reasonable expenses; acquire an absolute or fee simple title unless a lesser title is designated. 17 No sooner had the Urban Redevelopment Law been passed and the City of Philadelphia embarked on a redevelopment project than the law was challenged. The Pennsylvania Supreme Court addressed the general challenge as well as the question of private gain which results from a public undertaking. Belovsky v. Re-

development Authority of the City of Philadelphia 54 A.2d 277 (1947). The Court declared that if governing bodies cannot take it upon themselves 16

to eliminate blighted areas then "our cities must continue to be marred by areas which are focal centers of disease, constitute pernicious environments for the young, and, while contributing little to the tax income of the municipality, consume an excessive proportion of its revenues."

Id. at 282.

Additionally, the court held that even though there may be some private gain involved in a redevelopment project, it does not detract from the overall public purposes which are essentially the "clearance, reconstruction and rehabilitation of the blighted area." Id., at 282. The court further stated, "if the public good is enhanced it is immaterial that a private interest also may be benefitted." Id., at 283.

The Commonwealth Court of Pennsylvania in Franklin Town v.

Authority of the City of Philadelphia Pa.Cmwlth., 339 A.2d 885 (1975) also held that "incidental private gain does not vitiate the public character of the taking of blighted areas."

Id., at 890. "As a general rule, the assertion that a taking will incidentally benefit private persons is no defense to an otherwise valid taking." 18 In addition to permitting some private gain when a public purpose is served, Pennsylvania courts, as well as many other courts, have been reluctant to substitute their judgment for that of legislative bodies and administrative agencies where eminent domain is concerned. Typically, the courts view eminent domain as one part of a comprehensive plan for urban redevelopment and because of the expertise necessary in developing and implementing the redevelopment plan, they will defer to that expertise, absent a showing of bad faith.

In Crawford v. J(eaevelopment Authority of the County of Fayette 211 A.2d 866 (1965), the Court said it would not question the discretionary actions of a redevelopment authority.

Further, "it is generally settled that unless bad faith, arbitrary action, or failure to follow a statutory requirement are shown, the certification by an Authority that an area is blighted and the plan for improving it are not subject to judicial review." Id., at 869.

The United States Supreme Court, also voicing the philosophy of many courts held that "miserable and disreputable housing conditions may do

more harm than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle." Berman v. Parker 348 U.S. 26,32 (1954). Once the experts had determined that an area is to be redeveloped because of its blightedness "it is within the power of the legisla~ ture to determine that a community should be beautiful as well as healthy, spacious as well as clean, wellbalanced as well as carefully patrolled." Id., at 33. The legislative branch then is the appropriate vehicle through which to proceed without judicial interference.

JUST COMPENSATION

What compensation is just has always been a matter of controversy.

"I n the landmark decision of Schuylkill Navigation Co. v. Thoburn [in 1921] the Supreme Court [described just compensation]: What would the property unaffected by the obstruction have sold for at the time the injury was committed? What would it have sold for as affected by the injury? The difference is ... the measure of compensation.'''9 Ascertaining the value of personal property is not difficult since many similar articles of property are in existence. On the other hand, real property differs from one parcel to another. Consequently, in order to determine the value of real property, one must view the property, evaluate the physical characteristics of the property as well as the surrounding area, look at comparable property similarly situated and perhaps seek expert opinions as to the value. Fair market value is used to designate the compensation for the taking of real property. Fair market value is "the amount of money which a purchaser willing, but not obliged, to buy the property would pay to an owner willing but not obliged to sell it. "20 In the interesting and perhaPS strangely entertaining case of State of

Montana Department of Highways v.

Schumacher 590 P.2d 1110 (1979), the issue was how just compensation would be determined. Insofar as test;· mony of witnesses can be used to assist in calculating value.

Schumacher, the owner, sought 10 use the testimony of the Jessee, Schmidt, as one means to establish value. The Department of HighwaYS had condemned Schumacher's proP"

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erty on which Schmidt had constructed a building which was used for the raising of maggots which were sold as fishbait. The Supreme Court of Montana readily admitted that it would be difficult to independently establish the fair market value of a maggot production facility which was located near a slaughterhouse. The state had attempted to prevent Schmidt from testifying as to value and further had tried to prevent him from being compensated for his expertise In the construction of the facility.

The Court immediately recognized that raising maggots is a skill possessed by very few individuals, that Schmidt had demonstrated his expertise in "designing an efficient, indoor maggot raising operation, gained over the course of 28 years [and concluded that] in view of his extensive experience and the limited number of practitioners in this field, Schmidt may be the only one qualified to estimate the value of his property." Id. at 1115. The Court presents an argument which may be impossible to refute.

Apart from unusual facilities such as Schmidt's, occasionally the property is of a nature that its use precludes a ready ascertainment of value. Such property is termed "special use property," and includes churches, schools, religious institutions, or public service agencies. In those cases, one must "deduce market value from the intrinsic value of the property, and its value to the owners for their special purposes. "21 Another common element in eminent domain cases is "delay compensation" which is an additional sum to which an owner is entitled for failure of the condemnor to pay compensation in a timely manner. 22 However, to avoid unjustment enrichment, "delay compensation is not payable during the period condemnees remain in possession after condemnation."

Commonwealth oj Ponnsylvania, Department oj Transportation v.

Hess Pa.Cmwlth., 423 A.2d 434,436 11980).

In order to provide compensation to those who have been displaced, the Eminent Domain Act was amended in 1971 to conform to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C.A. 搂 46(0) which provides for relocation benefits to those dis-

placed as a result of federally fur.ded redevelopment projects. The Pennsylvania amendments, however, apply to both federal and non-federal projects .

A displaced person is entitled to relocation expenses whether or not there has been a declaration of taking, thus providing compensation in inverse or de facto takings. The compensation includes the removal, transportation, and installation of personal property. Fixed amounts for displacement are also an option available to the displaced person.

When a building is unique and when no other building within a reasonable distance is adaptable, one can include machinery, equipment and fixtures as part of the real estate for compensation purposes. However, if the items are able to be moved the owner will not receive compensation other than relocation expenses. 23 For displaced homeowners, section 602-A (a) of the Act provides for an additional payment not to exceed $15,000 in order to acquire "a comparable replacement dwelling which is a decent, safe, and sanitary dwelling adequate to accommodate such displaced person." Tenants are likewise entitled to compensation "to enable such displaced persons to lease for a period not to exceed four years a decent, safe and sanitar.y dwelling adequate to accommodate such displaced persons in areas not generally less desirable." Tenants can also receive an amount not to exceed $4,000 in order to enable them to make a down payment on their own house.24 ASSEMBLED ECONOMIC UNIT DOCTRINE

In Pennsylvania, the Assembled Economic Unit Doctrine (AEUD) stands for the proposition that when machinery, equipment, or fixtures are such an integral part of the condemned real estate that they cannot reasonably be relocated to a new facility, they are part of the Assembled Economic Unit, and the owner is to receive just compensation for them. On the other hand, if the condemnee chooses to leave machinery, equipment, or fixtures which can be relocated, compensation cannot be claimed.

In the case 路 of Redevelopment

Authority oj the City oj Philadelphia v. Associated Retail Stores, Inc., Pa.Cmwlth., 408 A.2d 181 (1979),

Commonwealth Court ruled that Associated had made such extensive improvements to the property which could not be removed and which could not be easily adapted to its new location that the AEUD must be applied. Id., at 183.

By contrast, in Redevelopment

Authority oj the City oj Philadelphia v. Driscoll Pa.Cmwlth., 405 A.2d 975 (1979), most of the equipment in Driscoll's taproom would be able to be relocated and therefore would not fit within the guidelines of the AEUD. Id., at 980. The court, however, did allow that a "liquor license is a compensable property interest within the meaning of the Code." Id., at 976. Driscoll was compensated in the amount of $20,000 for the license and the loss of patronage which resulted from relocating.

A jury has the discretion to consider the AEUD in determining compensation. In the case of Benkovitz v.

Urban Redevelopment Authority oj the City oj Pittsburgh Pa.Cmwlth ., 425 A.2d 1178 (1981), a new trial was denied by the Commonwealth Court which held that the jury verdict of compensation was adequate. Id., at 1181. The appellant had requested a jury view to determine compensation; the view took place four years after the property had been vacated. The court decided that the jury had the discretion as to whether or not it wanted to apply the AEUD and further, even though the property was quite deteriorated after a four year period, "it is the appellant's burden to prove to the jury the value of the property immediately before and after the taking." Id. PITTSBURGH'S REDEVELOPMENT

The Pittsburgh environment in the early 1900' s was the source of much concern. Conditions were such that drastic changes would have to be made if the city was to survive as a major Metropolitan area . By the 1930' s plans were proposed for the revitalization of the downtown area .

The major programs included the renewal of the area of the point, flood control, and smoke control, as well as the development of a modern highway system. With no substantive changes taking place, by 1945 some of the large Pittsburgh corporations including Westinghouse, Alcoa & U.S. Steel had taken options on property in other cities with the intention

17

to move out of Pittsburgh. 2l The environment had not improved. "A blanket of smoke choked the city much of the time. There are floods almost every year. Hundreds of communities dump their raw sewage into Pittsburgh's rivers. Housing is substandard . No major highway has been built and none is in design. Pittsburgh, in short, was not a fit place in which to live and work and raise a family. "26 However, some corporate leaders decided to change the area rather than move. The primary vehicle for that change was the Allegheny Conference on Community Development, established by the corporations in 1943 and headed by Richard K. Mellon. While the Conference began drafting plans, the "effectiveness of the [Conference] depended ultimately upon the cooperation of Mayor David Lawrence ana the City-County Democratic political machine." 27 With the assistance of the state legislature, the Urban Redevelopment Law was passed in 1945 with the Urban Redevelopment Authority of the City of Pittsburgh formed one year later. The Urban Redevelopment Authority (URA), was granted eminent domain powers and could begin condemning those properties which would then be replaced. Equitable LlIe Assurance Society of the United States was persuaded to invest in the reconstruction of 23 acres of land in Gateway Center. The State eventually constructed a 36 acre park at the Point.

Between 1950, when Gateway Center was begun, and the mid1960's, more than 25 070 of the 330-acre Golden Triangle was rebuilt. hom 1949 to the mid-1960's 60 major new structures were erected. Without eminent domain, it is quite doubtful whether this redevelopment would have been possible. In 1950, 95 acres in the Lower Hill District were certified as blighted and were scheduled for redevelopment; the $22 million Civic Arena was part of the plan. The human cost in this project included the displacement of 1551 families, mostly black, as well as 413 businesses all without the relocation benefits which are available today. 28 The redevelopment of Gateway Center was challenged in the case of

Schenck v. City of Pittsburgh et al. 70 A.2d 612 (1950). The Supreme Court of Pennsylvania agreed with the City

18

Planning Commission's findings that the area suffered from "inadequate planning, defective design and arrangement of buildings thereon, faulty street or lot layout, [with street patterns dating from 1784] and economically or socially undesireable land uses . . . which is wholly unsuited to the needs of a modern city." [d., at 614. The Court went on to say that "where the right of eminent domain is vested in a municipality, an administrative body, or even a private corporation, the question as to whether the circumstances justify the exercise of the power in a given instance is not a judicial one, at least in the absense of fraud or palpable bad faith." [d., at 615 . The Court held that the Urban Redevelopment Law gives the municipalities wide discretion within which to function and this discretion will not be usurped by the courts. [d.

Parisioners of St. Peter's Church in the Lower Hill District questioned the validity of the redevelopment in that area. St. Peter's Roman Catholic

Parish v. Urban Redevelopment Authority of Pittsburgh 146 A.2d 724 (1958). The Pennsylvania Supreme Court held that the allegations of abuse of discretion on the part of the URA were unfounded and further, since the Bishop actually owned the property, and had received $1,240,000 for it, the parish had no standing to sue. [d., at 726. Justice Musmanno, although concurring with the result, did express his regret at seeing the demise of the church. He said that he "sympathized with the parishioners and can appreciate their agony of spirit in the loss of the church to which they are attached ... but the law applicable to the case is explicit and, as it stands can offer no alternative in the disposition of the legal issue involved." [d. at 729.

While the courts generally have been consistent and predictable in their application of eminent domain principles, local agencies have not.

There are many examples, both here and elsewhere, in which eminent domain was exercised for a particular public good for · which homeowners, tenants, and businesses were uprooted and forced to relocate only to see the projects languish because of interminable political and governmental delays. In some cases, proposed public purposes have even been (conl;nued on page 20)

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A LOOK INSIDE . .. (continued from page 14)

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Mr. Liu feels that the library Currently contains an excellent core collection of the primary sources of American law and also a first rate collection in the specific areas of Pennsylvania practice, labor law. taxation. jurisprudence, international law and English law. Barring any major policy changes, Mr. Liu hopes to reach the 130,000 volume capacity of the library within ten years, while continuing to "build through quality rather than quantity."

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Possible areas of future growth include the development of a microfilm area that will allow the facility to grow internally while retaining the capacity to handle incoming material for a marked period into the future.

The expansion of the computer information system. and the augmentation of an already established audio-visual department, will also be given consideration.

Through a long period of planning and hard work, Mr. Liu, in conjunction with the Dean and faculty. opines that the Duquesne University School of Law Library will take its rightful place among the top legal facilities in the country. and in sO doing. become known not only throughout the state and region. but gain national prominence as well.

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will undoubtedly find yourself, regardless of group affiliations, talking with friends about the law at meals or at parties and this is nothing less than informal group study. It also tends to make laymen afraid to invite you to their parties for fear that a social evening will degenerate into legal review.

On Finding Employment YOU

(Struggle Number Two)

The arduous process of looking for a job is a curious task . There is no solitary method which has proven correct, and in times of recession, when employers have all the options, almost anything goes. The name of the game is hustle.

During the first year in law school there should be only one preoccupation and that is with academics. Law school policy prohibits students from working while maintaining a full-time course load. While the hunt for work is clearly secondary to studying, it should by no means be ignored for nine months and then begun after final exams in May. It is a process which should begin after you are comfortable in a studying routine and feel that classwork is going smoothly.

This may take three months or an entire semester. But summer jobs are handed out early, and, therefore, time is obviously a factor.

There is no understating the importance of a strong resume. Strength in a resume is achieved not only by enumeration of background accomplishments, but by packaging this "history" in a professional manner.

There are a number of resume services in town, but, they invariably will redesign your resume unless you leave explicit instructions. Usually it is best to design your own resume on a typewriter and then arrange for it to be typeset and printed. This is perhaps a twenty- five dollar expense which is well-worth the money. As one law professor so bluntly phrased it to his second year class, "To make money, you have to spend money." Unfortunately, this is not altogether untrue.

The New Image Press on Fifth Avenue is one place to have this done, but there are other" presses" further downtown. Duquesne's placement office will issue a manual on resume construction and the proper formats for writing cover letters. This is a helpful guide. The placement office staff is also willing to schedule appointments for individual work on

resumes with students. The first semester is also a good time to construct a writing sample or to polish your "Legal Research and Writing" sample 路which is prepared in satisfaction of your course requirements .

Many firms, if they are pleased with your resume, will ask you to provide a legal writing sample, and you will certainly not have time at that point to rush one together.

"And now, armed with a resume, where in the world do I begin?"

There seems to be no more perplexing problem that to find a starting point and establish a structured hunt for a job. Begin Downtown, pounding the pavement. Dress professionally and go door-to-door with your resume.

There is no truer, albeit sadder statement than the one that a former professor issued to the second-year class last year, "Law firms will not hire a person who does not look like them."

Dress the part and act the part of a confident, aspiring professional. As you drop resume after resume in the secretary's lap at various firms, you may get lucky and bump into a recruiting director or hiring partner and receive an on-the-spot interview .

Certainly far stranger things have happened.

If acting like a legal" Fuller Brush man" is not your forte, then write letters. Use the Martindale-Hubbell Legal Directory to locate firms with practices that interest you and send them a cover letter and resume . In your letters, make specific reference to an aspect of the firm's practice that you find interesting. If they have a strong tax practice, or they do a good deal of environmental litigation and you find one of these to your liking, say so! This might be helpful in distinguishing you from all the others.

From time to time the placement office will "post" announcements of job opportunities on a special bulletin board in the law school. These can usually be responded to with letters or phone calls. It is traditionally a rich source of immediate availabilities and requires somewhat speedy responses.

Do not overlook what are fondly known as "connections" in the legal community. One should approach them not with a "Hello, I need a job", but rather "Hello, I need advice. Try contacting your fellow college alumni or family friends, or anyone to whom you believe it would not be a bother. The idea is to get an interview, no matter how formal or in-

formal, and then to sell yourself in person.

One should never pass up an intellectually satisfying "volunteer" experience when no paying jobs develop.

A prime example of such volunteer work is the Allegheny County Death Penalty Project under the auspices of Professor Bruce Ledewitz. This can be a very challenging and rewarding research experience.

The key of course to the job search is to do a strong job in school. There is no substitution for a good class rank and a solid transcript.

For further details on all placement questions talk to the Placement Director, Ms. Amy Swanson, in the main office.

On Sanity (No Struggle at all) Perhaps the best advice that we were given two years ago was that as we enter law school we become part of the "Profession." It would make the challenge more worthwhile, we were told, if we began with that thought foremost in our minds. The message, of course, was that legal education, like legal professionalism, came not without great social and humanitarian responsibility.

Throughout this article we have espoused the do's and don't's, the right's and wrong's and the sophistication of the challenge before you.

What we hope was implicit in the tone of our thoughts was the notion that there is a great responsibility to remain sane. There is no code which requires lawyers to be dull, sullen and pretentiously intellectual. There should , however, be a code which requires lawyers to be aware of life outside the courtroom and to be versatile, political and social.

Too often we are given bad advice, like that we received on orientation evening two years ago when one upperclassman allowed as how we might do well to plan for one night a month of mild social unwinding. Our lives should never be that arbitrary, for as we are taught to approach reasoning in a legal, logical manner, we should also be taught to approach our social existence in a similarly logical manner.

When we tire, we should relax, and when we are bored we should shift our interests elsewhere.

Allow yourself to be yourself! Be professional, but do it with a sense of humor, a sense of reality, and a little panache. ~

19

DEDICATION CEREMONIES

.. .

PRIVATE LAND TODAY

-10

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II

(continued from page 3)

(continued from page /8)

12

with the convictions, morality, and determination of Edward J. Hanley will step forth and work for the ideals and needs of higher education.

This physical structure that bears the name of Edward J. Hanley is certainly one of which he would be proud. Designed by its architect, James Gerard, and reconstructed by the general contractor, the Massaro Corporation, the new facility sits proudly and stately in the midst of the rest of the University complex. The entire space available in the school is 50070 larger than its former home in Rockwell Hall. The student lounge area is 20070 bigger, the student organization area is 5% bigger, and classroom space is 59% larger. Most significantly, the square footage of the library has increased 118%, to a potential capacity of 130,000 volumes.

The design and color scheme of the interior of the building was initiated with the goal of being one most conducive to study and learning. The tiered classrooms on the main floor of the school provide an unobstructed view of the front of the room, while the earth tone walls and carpeting aid in granting a calm and relaxing atmosphere in which to study. The simply designed layout of the building helps to make it easier for faculty, students, and visitors to arrive at their destinations with the least amount of effort. There is also an increased amount of overhead lighting in both the classrooms and the library areas to better facilitate their inhabitants .

The overall aesthetic effect of the new building is one that incites excitement in the students, especially in those who well remember the former facility.

The educators of the University's School of Law and its students are now responsible to complete the dream of men and women who for years worked to build not only a new physical structure for the school, but also a continuing excellence in its reputation as well. The students, now fully equipped, will take on this responsibility, and make Edward J. Hanley and his predecessors proud to have been a part of the Duquesne University School of Law community.

abandoned while those displaced are simply offered a bureaucratic shrugof-the-shoulder. As Professor Cribbet observes, "the wisdom of some of the planning which has been going on as a part of our urban redevelopment, renewal, and conservation programs may be open to doubt, but the legal power to proceed in this fashion seems to be clear." 29 That is to say, unless the condemnee can show fraud or bad faith on the part of the condemnor, even the most ill-defined and questionable of redevelopment plans will be judicially sanctioned.

13

14

15

16 17

18

19

20 21 22

FOOTNOTES I

2 3 4

5

6

7 8

9

Philip Nichols, "The Law of Eminent Domain" (3rd Revised Ed.) Matthew Bender (1981) § 1.11 p.

1-7.

Id. § 1.12 I, p. 1-13. !d. § 1.42, p. 1-127.

Id. § 7.221, p. 7-49.

Id. § 1.134, p. 1-21.

Edward L. Snitzer, "Pennsylvania Eminent Domain" George T. Bisel Co. (1965). § 201 (3), p. 67.

Nichols, Id. § 7.516, p. 7-237.

Snitzer, Id. § 201 (l)-I-(b), p. 11.

James S. Granelli, "Team's Taking Called Offsides." National Law Journal, July 12, 1982, p. 8.

23 24 2S

26

27

28 29

Phil H . Lewis, "Eminent Domain in Pennsylvania" 26 Pa. C.S.A. p.

22.

Nichols, Id. § 1.22 [6], p. 1-79.

26 Pa . C.S .A . § 1-201 (I), (2), (3).

26 Pa. C.S.A. § 1-401 commentJoint State Government Commission, 1964 Report.

Nichols, Id. § 26.11, p. 26-4.

26 Pa. C.S .A. § 1-406 (a).

26 Pa. C.S .A. § 1-517.

35 Pa. C.S.A. § 1709, 1712.

1980 Report by the Committee on Condemnation and Condemnation Procedure, American Bar Association (1981), p. 9.

Snitzer, Id. § 602-1, p. 285.

Nichols., Id. § 12.2 [1], p. 12-71.

Nichols,Id. § 12.32 [1], p. 12-538.

See Also Redevelopment Authority of Philadelphia v. Driscoll Pa. Cmwlth., 405 A. 2d 975 (1979) and

Redevelopment Authority of Philadelphia v. Associated Retail Stores Pa . Cmwlth., 408 A. 2d.

181 (1979).

26 Pa. C.S.A. § 1-601 (A), (B).

26 Pa. C.S .A. § 603-A (2).

Roy Lubove, "Twentieth Century Pittsburgh" John Wiley & Sons (1969) pp. 105, 106. !d. p. 107 .

Id. p . 110.

Id. pp. 127, 128, 131.

John E. Cribbet, "The Principles of the Law of Property" (2nd Ed.) The Foundation Press (1975), p.

426.

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