Juris Magazine- Winter 1988

A Federal Bar Exam?

Juris looks at Pension Plans WINTER 1988

THE DUQUESNE LAW SCHOOL NEWS MAGAZIN E

Sen. Arlen Specter

Judicial Selection Also: Why I Opposed Bork

Just ask any of the 50,000 lawyers who enrolled in PMBR for the Multistate Advantage in the last decade! lass Representatives Andy Quinn Tim Uhrich Dwayne Woodruff Mary Jo Perella Tom Wilken Steve Roth Joe Barrett

The nation's -lea(Jing Multistat~ expert Nationwide Toll Free Number: (800) 523-0777

Up Front N

ot since the early 1970s, when President Richard M . Nixon

failed on two occasions to have his first choices confirmed for seats on the United States Supreme Court, has the nation's attention been so focused on the selection of judges for our nation's federal courts.

Last year, President Reagan brought three federa l judges before the U.S. Senate and the public in an effort to solidify the conservative hold on the Court that he had begun to strengthen with the elevation of William Rehnquist to Chief Justice and the appointments of Sandra Day O'Connor and Antonin Scalia as Associate Justices. With previous cases on abortion, the right to privacy and First Amendment rights decided by narrow margins, the resignation of liberal justice Lewis Powell provided the opportunity for the right-wing to dictate legal and social policy into the next century.

Why, then, Robert Bork? Did Attorney General Ed Meese, who pushed for the nomination of the Pittsburgh native, really believe that a Judiciary Committee and a U.S. Senate, now in the control of liberal Democrats, would confirm an outright "strict constructionist" and champion of original intent? Did Meese rush to judgment with Bork, seriously underestimating the power of public persuasion wielded by special interest groups and the liberal law school elite? After all, a week didn't go by during the nomination process without Harvard Law Professor Laurence Tribe, himself an advisor to Senate Democrats, analyzing the Bork hearings on the nightly network news.

Stinging from the Bork defeat, the administration next trotted out Douglas Ginsburg, only to be embarrassed again by revelations of Ginsburg's occasional marijuana use while on the faculty at the Harvard School of Law. Finally Anthony Kennedy survived the process in a way that accommodated both sides. He was a safe conservative that was palatable to the liberal faction - a faction that allowed itself to moderate while avoiding another round of nominee floggings before the American public. lf there was any precedent set during these hearings, it was that the legal philosophies of future nominees, whether to the Supreme Court or the lower federal benches, will take center stage during the nominating process. The law school academe will remain liberal, the special interest groups continue to become more aggressive, and, most important, the use of the media is becoming more sophisticated . When a nominee such as Scalia refuses to directly answer questions, or a nominee such as Bork blatantly rejects theories already settled in court opinions, he will not only have to look directly into his inquisitor's eyes, but into the eyes of the millions of Americans watching at home in their living rooms .

One of those inquisitors during recent hearings has been Sen . Arlen Specter, a Republican U.S. Senator from Philadelphia who has often been at odds with the Reagan administration. As a member of the Senate Judiciary Committee, Sen. Specter became a key player in the Bork hearings when he refused to commit his support to the Reagan appointee, and, in the end, did not vote for his confirmation.

Observers of the Bork process pin the turning point of the hearings on Sen . Specter's questioning of the nominee - particularly the "clear and present danger" doctrine that has been settled in many of our First Amendment freedom-of-speech cases. Because of his political independence, Sen. Specter will be a key figure in future confirmation hearings on all federal levels. This month's Juris features Sen . Specter, his thoughts on the future of the selection process, and his reasons for voting against the nomination of Judge Robert Bork.

Within a few months, graduating seniors from Duquesne School of Law will be facing the most dreaded and feared time of their law school careers: The Pennsylvania Bar Exam. Countless hours of preparation will be expended in crossing the final hurdle in the race to practice law. But will there be another bar exam in our future?

That question came up at a recent lawn party when Alumni Editor Kimberly G. Roberts struck up a conversation with the Hon . Carol Los Mansmann, a Duquesne Law School graduate who now sits on the 3rd Circuit Court of Appeals. The query resulted in more research by Roberts, and her article on the thoughts of Mansmann and Hon . A. Leon Higginbotham, Jr., also of the appeals court, begins on page 17. interestingly, both federal judges disagree with a majority of the federal jurists who believe that a federal bar exa m is warranted due to the deficiencies in trial advocacy found in our federal courts. "Not so;' they said, indicating that the quality of advocacy in their circuit was more than adequate. A testament to the quality of education in Pennsylvania's law schools?

Inside Juris Sen. Arlen Specter: On Judicial Selection

by Timothy G. Uhrich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Why I Opposed Bork

by Sen. Arlen Specter . . . . .. .. .. . . .. . ....... . .... . . . . .. .. . .. . .. . .. 10 Original Intent: Does the Double Jeopardy Clause Apply to Incarceration?

by Prof Bruce Ledewitz . .. ... . .. . . . . . ....... . ... . ....... .. .... . .. 12 A Federal Bar Exam: Will it Lead to More Effective Trial Advocacy in our Federal Courts?

by Kimberly G. Roberts . . ... . . . . .. .... . .. .. . .. .. ......... . ... . ... 17 New Questions, New Laws Affect Pensions

by ]. Kenneth Myers . .... ... . . .... . ... . . ..... .. . . ... . . .. . . . ...... 20

Ledewitz p. 12

Los Mansmann p. 17

Also .. .

Up Front .... . .......... . ......

Squibbs ... . . . . . ... . .......... .

Moot Court . . . . . . . . . . . . . . . . . . .

Faculty Notes. . . . . . . . . . . . . . . . . .

3 4 6 7

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Squibbs Future lawyers learn basic skills Law students from Duquesne and Pitt participated in a unique skills training course for future attorneys in February and March at the Duquesne University School of Law. The two schools, in conjunction with the Allegheny County Bar Association's Young Lawyers' Section, sponsored the '~egheny County Practicum Skills Training Course:' The course offered a practical procedural introduction to the practice of law and offered the experience of ACBA-member attorneys who practice in Allegheny County and who are experts in their fields . Topics included Law Practice Organization, including basic law business, setting up files, fee structures and time management; Preparing the Civil Case, including pleading rules, complaint preparation, arbitration, federal jurisdiction and civil trial procedure; and Procedural Overviews, including family law, estate planning and real estate.

Rosemary L. Corsetti, Esq., coordinated the program for the ACBA while Profs. Ronald Ricci and Cyril Fox coordinated for Duquesne and Pitt, respectively.

Juris The Duquesne Law School News Magazine Timothy G. Uhrich Editor-in-Chief Articles Editors Elisa M. Astorino Joseph H . Bucci

Managing Editor Thomas S. Edwards Production Editor Francis J. Scott

Associate Editors Jessel A . Costa, Jr. Nello Giorgetti Matthew T. Mangino J. Kenneth Myers Veronica Richards Samuel R. Zuck

Alumni Editor Kimberly G. Roberts Senior Staff Eric Borgia Frank Fogl Michael Yasofsky

News Editor Susan M. Gerhold

Staff Coordinator Marcia Allen-Aston

Faculty Advisor Patrick J. Basial

Administrative Assistant Jan Daschbach

JURIS is a student publication of the Duquesne University School of Law. Views and opinions expressed are not necessarily those of JURIS or Duquesne University.

All manuscripts and comments may be addressed to JURIS Duquesne University School of Law 900 Locust Street Pittsburgh, Pennsylvania 15282 Telephone (412) 434-6305 Copyright Š 1988 Duquesne University

VOLUME 21

NUMBER 2

ABA Committee to investigate Crits dismissals Last month's issue of Juris extensively examined the development and methods of the controversial Critical Legal Studies programs advocated by progressive educators at many of our nation's law schools.

Four "crits" from the New England College of Law in Boston, Mass., were denied tenure from the school, and now the American Bar Association's Accreditation Committee has ordered an investigation into the dismissal of the four professors.

Professors David Abramowitz and Christine Williams are affiliated with CLS while Profs. Margaret Houy and Stephen Parnes were sympathetic to the movement. Since their dismissals, all four have been practicing law in the private sector.

The four filed a complaint with the ABA charging that their dismissals were politically motivated. The school denied the accusations, stating that the professors were denied tenure for poor teaching. However, according to the complaint, the tenured faculty of New England College voted to rehire three of the four professors while the fourth was denied review because of visiting professor status . The board of trustees overturned the faculty votes and dismissed all four.

CLS is a nontraditional scholarly movement whose adherents believe that the law is based on subjective judgements rather than independent legal principles. A longstanding debate has raged within the legal community about the legitimacy of the movement. If the ABA committee concludes that the cases were mishandled, the school could lose its accreditation or face probation.

WINTER, 1988 JURIS

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Moot Courts Thank Alumni Judges Each year, the Duquesne School of Law Alumni Association invites its members to volunteer their time to serve as judges for the various trial and appellate moot court competitions conducted throughout the year by the law school. Amy Swanson, the Law Alumni Coordinator, reports that this year's response by the alumni was overwhelming.

It was, in fact, so overwhelming that the number of volunteers exceeded the number of judges that were needed for the competition. The law school, the moot court boards, and most important, the competitors would like to thank those individuals who continue to support the school in its moot court programs: TRIAL MOOT COURT: Edward

APPELLATE MOOT COURT:

J. Abes, Richard Antonelli, Frank Arcuri, David Max Baer, Lauren D. Baltic, Francis A . Barry, Katherine Benesch, Edward J. Borkowski, Jon Charles Botula, John A . Caputo, Daniel P. Carroll , Kenneth P. Christman, Rose E. Constantino, John C. Conti, John Daley, James A. Dattilo, John R. DeAngelis, John L. Doherty, Richard S. Dorfzaun, Bradley Dornish, Albert G . Feczko, Jr. , Karen L. Ferri, Warren Ferry, William R. Friedman, Andrea Geraghty, Paul R. Ciba, Bob Ging, Mark L. Glosser, William F. Goodrich, Brennan Hart, Charles L. Holsworth, Theresa Homisak, Mary Margaret Isabella, J. Lawson Johnston, Richard J. Klein, John L. Kwasneski, David J. Laurent, Wesley T. Long, Thomas J. Lowery, Michael L. Magulick, Robert B. Marcus, Robert J. Marino, Thomas A. Matis, Samuel A . Moore, Ronald Muha, Mindy J. Mulvihill, Mary M. O'Day, Lisa Ondich, John R. Orie, Jr., Ernest B. Orsatti, Robert P. Petyak, William D. Phillips, Paul W. Roman, Jr., Andrew M. Schifino, Richard J. Schubert, Arnold L. Schulberg, Howard J. Schulberg, June S. Schulberg, William S. Schweers, Jr., Raymond J. Seals, Steven B. Sefchek, Dennis E. Shean, Henry M . Sneath, Donald J. Steighner, Leonard E. Sweeney, Robert B. Truel Ira Weiss, David B. White, Mark A. Willard, Lisle A . Zehner, III, Robert A. Zunich.

Frank Arcuri, Walter F. Baczkowski, David Max Baer, Lauren D. Baltic, Francis A. Barry, Katherine Benesch, Edward J. Borkowski, Joseph E. Breman, Robert M . Brown, John C. Conti, J. L. Cosetti, Zelda Curtiss, John R . DeAngelis, Dara A. DeCourcy, Joseph A. DelSole, Kathleen Dalegowski, Richard S. Dorfzaun, Albert G . Feczko, Jr., Dale K. Forsythe, William R. Friedman, Donald C. Gates, Jr., Andrea Geraghty, Paul R. Ciba, Paul J. Gitnik, Mark L. Glosser, Edward I. Goldberg, William F. Goodrich, Carl K. Harvison, Theresa Homisak, Ken Horoho, David R. Hughes, Mary Margaret Isabella, George M . Janocsko, Deborah A. Miskovich Jones, Richard J. Klein, Joseph M. Kulik, John L. Kwasneski, M. E. LallyGreen, Kathleen Larchuk, Roseann J. LaRosa, David J. Laurent, Thomas J. Lowery, Michael L. Magulick, Robert B. Marcus, Rosemary Markham, Thomas A. Matis, Ronald Muha, Mindy J. Mulvihill, Rhoda Shear Neft, Mary M. O'Day, Lisa Ondich, John R. Orie, Jr., Ernest B. Orsatti, Joseph J. Pass, David A. Petersen, Jennifer Fox Rabold, William C. Ries, Andrew M . Schifino, Arnold L. Schulberg, Steven B. Sefchek, Barbara J. Shah, Celia (Berman) Shapiro, Ira Weiss, Mark A . Willard, Meghan R. Wise, Lisle A . Zehner, III, Robert A. Zunich.

Alumni, Senior Dinners Set The 37th annual Duquesne Law Alumni Association reunion dinner is scheduled for Thursday, April 21, at the Fox Chapel Yacht Club on Old Freeport Road in Fox Chapel. Reservation deadline is set for Friday, April 15. For more information, please contact Amy R. Swanson, the Law School Alumni Coordinator, at (412) 434-6297.

The annual Senior Awards Dinner for graduating Duquesne Law School students has been scheduled for May 21 at the Pittsburgh Press Club in downtown Pittsburgh . This dinner honors many of the outstanding students and class leaders for their contributions to the law school.

Details concerning the dinner will be forthcoming to senior students.

Weiss, Pellegrini in Leadership of Solicitors Assn.

Ira Weiss and Dan Pellegrini, both graduates of the Duquesne University School of Law, were elected to leadership positions in the Allegheny County Association of Muncipal and School Solicitors for 1988.

Weiss, a 1973 graduate, was elected committee treasurer. Recently elected president of the Pennsylvania School Solicitors Association, Weiss is the Deputy County Solicitor for Allegheny County. A member of the American Judicature Society, he is also on the adjunct faculty of the law school.

Pellegrini, who is a 1970 graduate of the law school, was elected an association director. He is the City Solicitor for the City of Pittsburgh .

The Squibbs pages are edited by Susan Gerhold, who is News Editor of JURIS.

A second year day student, Gerhold is employed by the Athletic Department of Duquesne University

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Trial Moot Court The finalists in the Trial Moot Court competition, which was conducted in October and November, 1987, are Shelly Snoddy and Joe Barrett (seated); and (from left to right, rear) Tim Uhrich, Tom Mortimer, Rita Valdrini and Randy Hareza. Snoddy and Barret competed in the Gourley Cup competition Feb. 11 and 12 while Uhrich and Mortimer went to the ABA regional competition Feb. 5-7 in Fairfax, Va.

Appellate Moot Court The finalists in the Appellate Moot Court Competition, which was held last spring, are (seated) Rita Hathawa y, Karen Siriani and Rita Valdrini. Standing, from left, are Alex Bicket, Bill Colleran, Donna Long, Bruce Campbell, John Orsini, Barbara Ochs and Randy Hareza. Bicket, Colleran and Orsini competed in the Tax Moot Court Competition at Stetson University, Florida, in January, while Ochs, Hareza and Valdrini participated in the Constitutional Criminal Procedure competition at Temple School of Law, Philadelphia, in February.

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Shertn.an finishes Duquesne Lavv tertn. labor law. Books that he has authored or co-authored include Collective

Herbert L. Sherman, Jr., Professor Emeritus at the University of Pittsburgh School of Law since 1984, has completed a term as professor at the Duquesne University School of Law. He taught torts to first-year law students, and he also taught a labor arbitration seminar to three-year law students. The focus of the seminar was the role of the lawyer in labor arbitration. Problems discussed in the seminar included job classification, seniority, work assignment, and discharge. Students in the seminar were given the opportunity to participate in a mock arbitration hearing.

Professor Sherman received his undergraduate education at Brown and Yale Universities and was a member of Phi Beta Kappa. He received his law degree from Harvard Law School in 1948. While at Harvard, he also completed courses at the Harvard Business School. He has been a member of the faculty of the University of Pittsburgh School of Law since 1948, and in 1960 he also received a joint appointment as Professor of Industrial Relations at Pitt's Graduate School of Business.

Professor Sherman has more than thirty years experience teaching torts, labor law and labor arbitration. In addition to teaching at the University of Pittsburgh, h e has been a visiting professor at several law schools, including the University of Leuven in Belgium. Next summer he will be a visiting professor at the William

Mitchell College of Law in Minnesota.

Professor Sherman is also known for his labor arbitration experience.

From 1952 to the 1980's, he has arbitrated over a thousand labor disputes ranging geographically from Massachusetts to California, and from Texas to Michigan. He has also served as an arbitrator in Canada. Professor Sherman was the chairman of the

Barker publishes

Lights, Camera .. Tax?

Prof. Notes

Professor Robert Barker has been reappointed Chairman of the Constitutional Law Committee of the Inter-American Bar Association. As chairman, he will organize and direct the constitutional law program at the IABA conference this year in San Jose, Costa Rica.

Barker has written two articles on constitutional law which will be published this year. They are "Human Rights: Two Hundred Years of Constitutional Experience in the United States," w hich will appear in the Revista del Colegio de Abogados de Puerto Rico. He is also the author of "Con stitutionalism in th e Americas: A Bicentennial Perspective;' which is scheduled for publication in the University of Pittsburgh Law Review.

If teaching in a law school classroom is considered to be high drama, then there is certainly no one more qualified than the tax guru himself, Prof. Mark Yochum.

Yochum will be appearing in Arsenic and Old Lace at the McKeesport Little Theater every Friday, Saturday and Sunday during March. Curtain time is 8 p.m. nightly, so contact the box office early as crowds are expected.

McKeesport Little Theater is located at 1614 Coursin St., McKeesport, and the box office telephone number is 673-1100.

Frank Yining Liu served as moderator of an education"l symposium sponsored by the Pittsburgh Ethnic Coalition this past winter, focusing on "English, Yes; English Only, No". . . Maureen E. LallyGreen was named to the 1987 edition of Who's Who in American Law . ..

Amy R. Swanson, Director of Placement, was selected by the National Association for Law Placement to organize and present a discussion of new approaches to scheduling on campus interviews at its regional meeting this winter in New York.

Swanson formulated Duquesne Law School's innovative Evening Interview Program.

Prof. Sherman Board of Arbitration for U.S. Steel Corporation and the United Steelworkers of America from 1957 to 1958. In 1956, he was elected to the National Academy of Arbitrators.

Professor Sherman has over fifty publications, and many of these publications concern arbitration and

Bargaining in Private Employment, Unionization and Collective Bargaining, and Arbitration of the Steel Wage Structure.

In addition to being a distinguished educator, lawyer, and arbitrator, Professor Sherman enjoys travel and considers travel to be his hobby. He has visited all fifty states and has been to all of the world's seven continents. He has visited half of all the countries of the world and has performed research in all Common Market Countries. High points of his travels include hunting alligators in the swamps of the Amazon River in South America, and tracking wild animals on safari in the foothills of Mt. Kilimanjaro in East Africa.

Professor Sherman has also lived in China and traveled north to inner Mongolia, where he slept with the fleas from camels, on a mat in a yurt or portable tent of the nomads. He also journeyed on a ship hundreds of miles north of Norway into the Arctic Ocean where the bow of the ship was driven into the polar cap which surrounds the North Pole and, most recently, he joined an expedition to see the penguins in Antarctica where the South Pole is located. Professor Sherman says, "These adventures make it much easier to cope with law students and lawyers:'

- J. Kenneth Myers

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JURIS WINTER 1988

Sen. Arlen Specter

His views on the judicial selection process

by Timothy G. Uhrich

L

ast fall, the search began for a ninth Supreme Court justice.

The retirement of Justice Lewis Powell, a noted high court liberal, presented the opportunity for the Reagan administration to strengthen the conservative hold on the court by filling this crucial "swing seat" with the third Supreme Court appointment of this term. He had succeeded in elevating William Rehnquist to Chief Justice, and followed with the appointment of Antonin Scalia to the Rehnquist vacancy.

Both appointments cleared Congress with relative ease, but the third appointment to the Powell vacancy would meet with stiff opposition.

Atty. Gen. Edwin Meese pressed the nomination of Robert Bork, a federal court judge who was a symbolic strict constructionist and a champion of "original intent." With a presidential election only a year away, the Bork hearing resulted in the drawing of finite battle lines. America watched as an unswerving Bork went down to defeat at the hands of the Senate Judiciary Committee. The administration, now pressed for an alternative, came up with Donald Ginsburg, a young judge with no constitutional experience. Ginsburg fell victim, however, to "coming of age in the 70s" syndrome. He once smoked pot while on the faculty at Harvard Law School. His second wife also worked at a hospital that had performed abortions. Exit Ginsburg.

Finally, after much embarrassment,

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I do not use a Iitmus test. .. What is more important than the Iitmus test is a threshold question. That question is whether judicial philosophy is relevant.

-Sen. Arlen Specter

the Reagan administration settled on Judge Anthony Kennedy, a moderate conservative who was able to survive the battles that had already taken their tolls in both the liberal and conservative camps. He was confirmed late last year.

Throughout those hearings, a central figure was Sen. Arlen Specter of Pennsylvania, a member of the Judiciary Committee who, as a moderate to liberal Republican, has often clashed with the Reagan administration. Uncommitted to Bork at the outset, Specter grilled Bork hard.

Many observers feel that the turning point came when the tough, former Philadelphia district attorney pinned down Bork on original intent. In the end , Specter voted in opposition to Bork's appointment (see story, page 10).

Sitting in judgment of the nation's federal jurists, whether they be Supreme Court justices or circuit court judges, is no easy task, and takes a great deal of preparation.

Judicial philosophies must be balanced with judicial scholarship.

Throw in a good deal of politicking with the lifetime term of a federal judge, and the process grows even more critical. Sen. Specter recently took the time to speak with Juris about his views on the recent h earings and federal judicial selection.

"First of all, I do not use a litmus test," the Senator emphasized. "I do not believe in it. My preparation for the hearings for Bork, Scalia, and

all the lower court judges, was to start with what the person has said in the past. That encompasses opinions, law review articles and speeches.

That gives me an idea as to judicial philosophy.

"The litmus test is used broadly. It depends upon the individual senator, and it is true that most use such a test. In fact, in the recent Bork hearings, 11 of the 14 senators used a litmus test. What is more important that the litmus test is a threshold question . That question is whether judicial philosophy is relevant:' And judicial philosophy was relevant as witnessed by the Bork and Kennedy hearings. Specter indicates that the philosophical question was answered with finality in those hearings, that it will be a major criteria for future hearings.

"I think that the hearings of Justice Scalia contributed greatly to what we did in the Bork hearings;' Specter said. "When Scalia refused to answer a number of questions, that sharpened the issues for a number of us.

Sen. (Dennis) DeConcini and I had taken public positions that we felt it necessary to insist on answers, and not to go so far as to turn down a nominee just because he refused to answer questions."

Sen. DeConcini carried that position even further into the Kennedy hearings when he pressed Kennedy on the right of privacy issue. Kennedy attempted to skirt the issue, but persistent questioning by DiConcini forced Kennedy to recognize that the right of privacy does exist, forcing the future justice, in effect, to weaken his future freedom of individual choice that is the foundation of judicial independence.

The significance of the Bork hearings was unprecedented, Specter said. "Here you had a man who had such a vast public record on positions which were very different ... not necessarily extreme, but different ... and that made it a very controversial setting.

"However, the Bork matter is not over. There are some interesting things which are in process now.

Bork has resigned, and he has said he is going to speak out on the process of his confirmation hearings, and talk about all the unanswered questions from the hearings.

"But I wonder about that;' Specter continues. "The time to answer those questions was during the course of

the hearing. If people wanted to present additional information or raise a question, that was the time to do it. Historically, it's possible to do it at any time, and Bork is free to speak out at any time. But it appears to me that he is going to re-raise the issues, so we may have more controversy."

Specter believes that the hearings on Bork, Kennedy, Scalia and Rehnquist, have set the precedent for future hearings, and he cites the Rehnquist hearings as a turning point.

"I pressed Rehnquist hard on a number of questions about court stripping, and he didn't want to answer them. So I went back and, fortuitously, found an article that he had written in the Harvard Law Record, and had to confront him with that to get answers. Then, you had Scalia, who wouldn't answer any questions at all.

"People were on the edge of their seats . They were insisting on answers. Then you had Bork come along with the other factors, followed

by Kennedy. The Kennedy hearings re-established the principle of the Bork hearings, and that is the principle of judicial philosophy.

"Then, you had another principle which came out of Bork, and that is what I call the rolling majority.

Senators announced their support for or against one at a time, which I don't think should have happened until the deliberative process took place in the Senate. I think that this has to stop. I don't think people should be making up their minds in advance. There will be, in the future, a more thoughtful process by the Senate as a whole:' Observers of the Bork hearings agree that a critical turning point in that process came when Bork allowed Specter to pin him down on how he would interpret the "clear and present danger" doctrine established by Justice Oliver Wendell Holmes should Bork be confronted with future freedom-of-speech, First Amendment cases.

"That was an important point," Specter admits, "but whether it was critical, who knows? It was important to me because in his writings on clear and present danger, he was totally inconsistent with decades of judicial jurisprudence.

"He said he would apply the clear and present danger test as in the 1969 case, Brandenburg v. Ohio. So then I

said, O.K ., you'll take Brandenburg and Hess v. Indiana ... and he immediately shot back at me, 'I won't take Hess v. Indiana! It's an obscenity case: And I asked him: How can we rely on you?

"The telling point was whether it was reasonable for us to rely on him for a good faith representation, a representation that he would follow existing law in the context of his deeply held philosophical disagreement with these cases and these laws."

Finally, there was Specter's confrontation with Bork on Bolling v.

Sharp, the 33-year-old case allowing desegregation of the District of Columbia schools. "He said that Bolling was correct, but he had no rationale for it. His answer was genuine and sincere, and really demonstrated the impossibility of his rigidity on original intent," Specter said.

"You have a Constitution which is interpreted in a way that articulated values of due process of law on standards rooted in the conscience and traditions of the people have specific meaning in a judicial context.

That's the guts of the Constitution."

It was the unswerving nature of Bork's judicial rigidity, and his indicated philosophy of original intent and strict constructionism, that led to Specter's vote against the confirmation of Judge Bork. On the floor of the Senate, on Oct. 1, 1987, Specter told his colleagues : "In raising these doubts about Judge Bork's application of settled law on equal protection and freedom of speech, it is not a matter of questioning his credibility or integrity, which I unhesitatingly accept, or his sincerity in insisting that he will not be disgraced in history by acting contrary to his sworn testimony. Rather, the doubts persist as to his judicial disposition in applying principles of law which he has so long decried:'

Timothy G. Uhrich is Editor-in-Chief of Juris. He is on the administrative staff of Pittsburgh Mayor Richard S. Caliguiri. He thanks Yvonne O'Connor of the senator's staff for her help in these articles.

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Why I opposed Bork Sen. Arlen Specter talks about his vote

. on Judge Bork/s confirmation/ and Bork/s views on original intent and clear and present danger From the day in mid-July when Judge Robert H. Bork stopped by for a courtesy call until I telephoned him later to say I would oppose his nomination, my goal was to figure out what impact Judge Bork would have on the people who came to the Supreme Court in search of their constitutional rights. At the end, having come to like and respect Judge Bork, I reluctantly decided to vote against him, because I had substantial doubts about what he would do with fundamental minority rights, about equal protection of the law and freedom of speech.

From the beginning, it was evident that this nomination process would be different from most. The traditional courtesy call turned out to be much more because Judge Bork was willing - really anxious - to discuss his judicial philosophy. Unlike other nominees who had barely given name, rank and serial number, he enjoyed the exchange and doubtless figured that his extensive writings were so unusual that he would have to talk if he were to have any chance at confirmation.

Our first hour and a half meeting was interrupted by a Senate vote, so he returned a few weeks later for a similar session. In those discussions, I found a man of intellect and charm, who said, in essence, that his writings were academic and professional and not necessarily indicative of what he would do on the Court.

During the August recess, when I had a chance to read many of his approximately 80 speeches, 30 law

10

review articles and 145 circuit court opinions, I found a scholar and jurist whose views and opinions were vast and complex. In voting to confirm Chief Justice William H . Rehnquist and Justice Antonin Scalia last year, I had already decided that a nominee's judicial philosophy need not agree with mine. But I also believe that a nominee's views should be within the tradition of our constitutional jurisprudence. With that in mind, I compared Judge Bork's views with those of other conservative justices.

On freedom of speech, I was surprised to find that Judge Bork in his writings rejected Justice Oliver Wendell Holmes's standard of a "clear and present danger," Chief Justice Warren Burger's notion of constitutional protection for commercial speech and Justice (now Chief Justice) Rehnquist's Court opinion protecting a sexually explicit (as distinguished from an obscene) movie from censorship.

In Judge Bork's earliest views, only political speech was to be protected.

He later modified that to include literature and art that involved political discussion. In the confirmation hearings, I was even more surprised to find him change his position and commit himself to apply the Holmes test even though he continued his strong philosophical disagreement .

Judge Bork's views on equal protection of the law also underwent a major change at the hearings. He committed himself to apply current

case law after having long insisted that equal protection applied only to race and, more recently, to ethnicity.

His narrow position had put him at odds with Chief Justice Rehnquist and Justices Sandra Day O'Connor and Scalia, as well as 101 years of Supreme Court decisions that had applied equal protection to women, aliens, indigents, illegitimates and others.

These significant shifts raised questions about Judge Bork's motives and the depth of his convictions. Butl felt he should have a full opportunity to explain his new positions because a person is entitled to change.

During a long Saturday session, I had an unusual opportunity to explore at length some troubling aspects of Judge Bork's jurisprudence. I was particularly concerned with his writings on "original intent:' He had maintained that judges had to base their opinions on the Framers' original intentions. Without adherence to original intent, he said there was no legitimacy for judicial decisions. And without such legitimacy, there could be no judicial review.

But Judge Bork conceded during the hearings that original intent was often difficult, perhaps impossible, to discern. I feared that this approach could jeopardize the fundamental principle of constitutional law - the supremacy of judical review. Although Judge Bork himself never went so far, some prominent political figures have suggested that the Supreme Court should not be the

ultimate arbiter of constitutionality.

Their cause - with which I deeply disagree - could be aided by a Justice who questioned the legitimacy of judical review.

I had also been concerned by Judge Bork's insistence on "Madisonian majoritarianism;' the idea that, in the absence of explicit constitutional limits, legislatures should be free to act as they please. Conservative justices had traditionally protected individual and minority rights even without a specifically enumerated right or proof of original intent where there were fundamental values rooted in the tradition of our people.

Just this year, for example, Chief Justice Rehnquist and Justices O'Connor and Scalia had found a right in the Constitution for a prisoner to marry. But Judge Bork, at his confirmation hearing, could still find no acceptable rationale for the decision desegregating the District of Columbia schools 33 years ago.

I was further troubled by his writings and testimony that expanding rights to minorities reduced the rights of majorities. While perhaps arithmetically sound, it seemed morally wrong. The majority in a democracy can take care of itself, while individuals and minorities often cannot . Moreover, our history has demonstrated that the majority benefits when equality helps minorities become a part of the majority.

Despite these concerns, I was genuinely undecided - perhaps leaning a little toward Judge Bork - when he finished his impressive testimony at the end of the first week. He had conceded that there was a "powerful argument from a strong tradition" to find rights rooted in the conscience of the people, although not specified in the Constitution. He had also yielded to the "needs of the nation" on some constitutional matters that did not fall within the Framers' original intent. Perhaps his writings were only professional theorizing .

As I listened to the other witnesses during the second and third weeks, and considered the implications of Judge Bork's total approach, my doubts grew about the application of his changed positions. For example, in Judge Bork's former view, which he last expressed 20 days before his nomination, equal protection should have been kept to concerns like race and ethnicity. Considering the many

subtle and discretionary judgments involved, I felt it would be unfair to people who sought equal protection in the Supreme Court to have their cases decided by someone who had so long thought their claims unprotected by the Constitution under standards that were so elusive to apply.

Similarly, the hearings showed the great difficulty, if not impossibility, of Judge Bork's applying the "clear and present danger" standard to free speech cases. If there was a critical turning point, it was Judge Bork's responses regarding two cases.

The "clear and present danger" standard was restated by the Court in 1969, in Brandenburg v. Ohio, and again in 1973, in Hess v. Indiana.

When Judge Bork committed himself to accepting Brandenburg, I pressed as to how we could be confident that he would apply that test to the next case, which obviously would be different on the facts . He promised he would, but then promptly insisted that he was not committed to Hess because it was an "obsenity" case.

Judge Bork's disagreement on Hess, a "clear and present danger" case, cast substantial doubt on his ability to apply cases he philosophically opposed and had long decried.

The hearings brought a record 140,000 calls and letters to my office.

Wherever I went, it seemed that everyone had a strong opinion . The pressure was pervasive. On the afternoon the hearings ended, I talked again with Judge Bork for more than an hour, and met later that evening with Lloyd Cutler, the former adviser to Jimmy Carter, who had been a principle supporter. My substantial doubts persisted, so I decided to vote no.

Considering the many subtle and discretionary judgements involved, I felt it would be unfair to people who sought equal protection in the Supreme Court to have their cases decided by someone who had so long thought their claims unprotected by the Constitution under standards that were so elusive to apply.

This article is published with the permission of Sen. Arlen Specter.

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THE HONORS PROGRAM OF VILLANOVA UNIVERSITY presents: THE UNITED STATES CONS'IlTUTION PERSPECTIVES FROM THE BICENTENNIAL A PUBLIC LECTURE SERIES ON THE DEBATE OVER "ORIGINAL INTENTION"

* * * *

H. JEFFERSON POWELL

PROFESSOR OF LAW, DUKE UNIVERSITY LAW SCHOOL THURSDAY, OCIOBER 15, 3:30 P.M. WAYNE-ST. DAVID'S ROOM OF CONNELLY CENTER

GARY L. McDOWELL

RESIDENT SCHOLAR, CENTER FOR JUDIOAL STUDIES THURSDAY, NOVEMBER 19, 3:30 P.M. WAYNE-ST. DAVID'S ROOM OF CONNELLY CENTER

HARRY V. JAFFA

SALVATORI RESEARCH PROFESSOR OF POLITICAL PHILOSOPHY, CLAREMONT McKENNA COLLEGE -AND-

BRUCE LEDEWITZ

PROFESSOR OF LAW, DUQUESNE UNIVERSITY SCHOOL OF LAW MONDAY, NOVEMBER 23, 3:30 P.M. WAYNE-ST. DAVID'S ROOM OF CONNELLY CENTER

IN COOPERATION WITH INTERCOLLEGIATE STUDIES INSTITUTE AND VILLANOVA UNIVERSITY: THE HONORABLE ANTONIN SCALIA

* *

12

JUSTICE OF THE UNITED STATES SUPREME COURT FRIDAY, NOVEMBER 20, 4:30-6:00 P.M. THE CINEMA OF CONNELLY CENTER

-AND-

THE HONORABLE EDWIN MEESE ill ATTORNEY GENERAL OF THE UNITED STATES FRIDAY, NOVEMBER 20, 7:00 P.M.* VILLANOVA ROOM OF CONNELLY CENTER

Original Intent: Does the Double Jeopardy Clause Apply to Incarceration?

by Bruce Ledewitz Last Fall, Prof. Bruce Ledewitz participated in a public lecture series, The United States Constitution: Perspectives from the Bicentennial at Villanova University, Philadelphia. Also participating in the forum was Harry V. Jaffa, a political philosophy professor from Claremont McKenna College, who has written extensively on the framers' intent in the Constitution. Jaffa's thoughts have sparked a good deal of dialogue and were the basis for many articles in last spring's University of Puget Sound Law Review - including one by Prof.

Ledewitz. Ledewitz took the opportunity to continue his dialogue with Jaffa at the Villanova conference.

The following article is the basis for Ledewitz's remarks at the conference. Other program participants included Supreme Court Justice Antonin Scalia and U.S. Atty. Gen. Edwin Meese III. It may at first strike you that the title of this presentation has little to do with the subject matter I have been asked to address, which is, the controversy over original intent. What I hope to demonstrate to you by the use of this example is the alien quality, given our constitutional tradition, of what has been called "original intent ." In fact, by putting this one question, whether the double jeopardy clause applies to incarceration, to any candid originalist, you will see the whole enterprise exposed. This belief excursion will also demonstrate that Professor Harry Jaffa's views concerning the framers' overall enterprise are very close to those that have actually animated the work of our courts throughout our history.

Before turning to the double jeopardy clause, I must acknowledge two debts. The first I owe to Professor Charles Black, whose teaching at Yale inspired me and whose writing has sustained me since. I have stolen many of the ideas contained in this essay from him as well as the central illustration contained in the title.

Since it is called research if such a confession is made, I hereby confess.

The second debt I owe is to Professor Jaffa, with whose writing and thought I am beginning to become acquainted. Professor Jaffa's attacks on the current original intent school's misunderstanding of our constitutional tradition, are grounded in superb scholarship and are, to my mind, irrefutable. I have chosen to emphasize what unites us, though I

will later comment upon some differences. I consider what unites us to be far more significant.

Having said that, however, I will note one difference now. A central question in American law is whether judges ought to seek natural justice.

If the answer to that question is yes, as I believe and as Professor Jaffa does not, then the question of determining what is natural justice, though vitally important, is of secondary concern. Natural justice, if it is real, will make its own case and assure its own reception. Even temporary setbacks will not prove permanent. The real menace to natural justice, and I am not sure that even this is insurmountable, is that judges may become convinced that natural justice is not their goal and that seeking it represents judicial usurpation.

If this confusion is avoided, I do not fear for the future .

The following illustration is short, though one with enormous implications. The fifth amendment to the United States Constitution provides in part as follows:

[NJ or shall any person be subject for the same offense to be twice put in jeopardy of life or limb; ... nor be deprived of life, liberty or property without due process of law .. .

The clause concerning jeopardy is known as the double jeopardy clause. Simply said, the clause prohibits, where it applies, putting someone on trial a second time after he has been once acquitted.

Now if you read the text carefully

you will see that it plainly does not apply in a case in which liberty is at stake, that is a case involving jail as a punishment. One may not be put twice in jeopardy of life or limb, but the word liberty is simply left out of the enumeration. This omission does not appear to be inadvertent. The due process clause, found next to double jeopardy, lists "life, liberty or property" as those things to be protected by due process. So the framers clearly knew how to include liberty.

Nor is the application of double jeopardy to cases concerning incarceration somehow inevitable. Pennsylvania courts, for example, interpreted a parallel state constitutional provision for years to apply to only death penalty cases.

Based on all the foregoing, one would expect the proponents of original intent to protest the application of the double jeopardy clause beyond cases of "life or limb:' Nevertheless, the application of double jeopardy to cases involving only prison is established and noncontroversal. It is not the subject of denunciation by original intent writers.

Acquiescence in double jeopardy's broad application is not difficult to understand. The Constitution enumerates principles of broad application, due process, equal protection, free speech and so forth . These phrases have been interpreted throughout our history so as to give to them the soundest application of which human intelligence is capable, 13

unless interpretation comes up against a plain constitutional prescription. The arbitrary omission of the word liberty from the double jeopardy clause, and "arbitrary" is not too strong a word to use, has been regarded implicitly as too inconsequential to limit the otherwise full reach of the principle of double jeopardy. This is how Justice Miller put the matter in Ex Parte Lange, 85 U.S. 872, 877 (18 Wall. 163) (1873): "It is not necessary in this case to insist that other cases besides those involving life or limb are positively covered by the language of this amendment; . .. It is very clearly the spirit of the instrument to prevent a second punishment under judicial proceedings for the same crime, so far as the common law gave that protection:' The general point is that the Constitution is not a contract. Though it is binding, it is a different sort of legal document. Its parts are not to be interpreted, "as though each were a narrow thing in itself;' to use Professor Black's phrase. The Constitution has a "spirit; ' as Justice Miller said in 1873. This is why double jeopardy applies to cases involving liberty.

I illustrate this tendency to reasonable rather than literal or historical expansion through the double jeopardy clause because this expansion of constitutional protection is well accepted and, given what I know of original intent arguments, utterly unjustified from that point of view. Unless all double jeopardy cases involving incarceration are to be overruled, we must accept the idea that minor textual variations and historical inference are not impediments to constitutional interpretation.

There certainly are other illustrations of this expansion process. The due process clause, for example, omits the word "limb," which is contained in the double jeopardy clause.

Nevertheless, no one has ever thought that a person could be deprived of a limb without due process of law. For that matter, the double jeopardy clause's reference to "limb" has never been thought to insulate ear-cropping and other mutilation from condemnation under the eighth amendment's probation of "cruel and unusual punishments:' Cutting off hands is understood to violate the eighth amendment despite the contemporaneous reference to limb in the fifth amendment.

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There are more subtle, but farther reaching, instances of this tendency to apply constitutional principles where they seem well adapted without regard for negative implications in text or history. The application of first amendment protections to executive and administrative actions, and then later to the states, is one such example. The first amendment prohibits action only by Congress ("Congress shall make no law . . .") Of course, the framers and ratifiers of the first amendment probably assumed that executive and administrative action would take place only at the direction of Congress, but the Supreme Court has never bothered

The general point 1s that the Constitution is not a contract.

Though it is binding, it is a different sort of legal document.

Its parts are not to be interpreted "as though each were a narrow thing in itself .. . The Constitution has a spirit." to discuss this matter. The due process clause of the fourteenth amendment might similarly justify application of the first amendment against the states, but in Gitlow v. New York, 268 U.S. 652 (1925), the first case to discuss this issue, Justice Sanford simply "assume(d)" that due process includes freedom of speech. No historical evidence of intent by the framers of the fourteenth amendment was felt to be needed. The first amendment applies against the states primarily because free speech is felt

to be, as Chief Justice Hughes said in Near v. Minnesota, 283 U.S. 697, 707 (1931), an "essential personal liberty of the individual."

Equal protection is another example of non-textual, non-historical application. When, in Brown v. Board of Education, 347 U.S. 483 (1954) , a unanimous Supreme Court condemned school segregation, the opinion was written in the teeth of widespread segregation when the fourteenth amendment was adopted.

Chief Justice Warren called this history inconclusive, but his judgment was truly charitable. In fact, history was fairly clear, but legally irrelevant. Equal protection is a constitutional principle for us to interpret without too much regard for what the framers might have thought equal protection to require.

It is strange to see men and women who know these examples, and understand our legal history, sporadically and arbitrarily call for interpretations bound by negative textual implication or historical intention. Their position is not a coherent proposal for constitutional interpretation. In general, these same persons are not prepared to see double jeopardy limited to capital cases, or to permit ear-cropping without due process, or to repeal Brown and its applications.

But the same habit of mind that objects to an eighth amendment challenge to the death penalty because the due process clause mentions life should also object to application of double jeopardy to cases of incarceration, or the eighth amendment to the taking of a limb.

The most peculiar instance of the inconsistency of text and history critics is Judge Robert Bork's difficulty with Bolling v. Sharpe, 347 U.S. 497 (1954), the case that outlawed segregation by Congress in the District of Columbia . Brown declared public school segregation to be a violation of equal protection. The problem was that the equal protection clause binds only the states, not Congress. This objection was simply brushed off by the Court, which said that it would be "unthinkable;' 347 U.S. at 500, for Congress to segregate when the states could not and drafted the fifth amendment due process clause to do the job. Judge Bork questioned the legal reasoning of Bolling.

How can it be that fourteenth amendment due process can be thought to contain a guarantee of

free speech, which Judge Bork not only accepts, but celebrates, but fifth amendment due process cannot contain a guarantee of equal protection?

The answer cannot be historical, for Judge Bork has never shown the intention of the framers of the fourteenth amendment to include the guarantee of free speech and ratifiers of the fifth amendment to omit equal protection. Due process is either a general principle to be given content by reference to other constitutional principles, or it is not. Equal protection is not an especially difficult probem.

It is possible to imagine gaining general assent, even from original intent proponents, for applying constitutional principles without regard to implied textual limits. After all, the principles themselves, whether prohibiting cruel punishments or providing equal protection, are, as Judge Bork once put it, themselves discoverable in the text of the Constitution.

Once such readings are granted legitimacy, however, the narrow original intent position can deal only with a relatively small number of cases. Most of the important work of the Supreme Court has consisted of the application of free speech, equal protection and criminal procedure protections to the conduct of state government. While particular decisions may strike us as unsound, the whole enterprise is legitimated by acknowledgment that it is the constitutional principle itself that controls, rather than negative implications of text or history. All this flows from granting that double jeopardy applies to incarceration.

But what of principles not mentioned in the Constitution? These, as well as most of the Court's work, are quite settled. The right of privacy is highly controversial, but decisions protecting other rights not mentioned in the text pass relatively unnoticed.

The right to vote in state elections is not mentioned in the Constitution, nor is the right to travel across the country and migrate from state to state. Yet the Supreme Court has energetically protected voting and travel. Silence in the text then, is not itself a disqualification for constitutional protection.

But on a deeper level, the idea of in and out, or silence and mention, are not proper categories for interpreting our Constitution. This insight

about the framers' general intention is indeed one of Professor Jaffa's most important contributions. At every crucial point in history, the generations that gave the constitutional tradition birth and nurture reached beyond the text to embody natural rights of unspecified content. In the Declaration of Independence this idea was expressed by the use of the word "among" in the description of the "unalienable Rights" with which men are endowed. There are rights other than "Life, Liberty and the pursuit of Happiness;' but the Declaration of Independence does not attempt to spell them out . In the ninth amendment of the Bill of Rights, express reference is made to the rights not enumerated elsewhere, which are nevertheless not to be denied or disparaged. In the fourteenth amendment, the due process clause was included ten years after the firm establishment of substantive due process in the state courts. See e.g., Wynehamer v. People, 13 N.Y. 378 (1856) (prohibition statute applied to liquor already owned violates state due process clause). Also, the privileges or immunities clause of the fourteenth amendment, which has not been applied by the Supreme Court, was no doubt written to protect national rights theretofore partially protected

by Article IV. At no point did any generation attempt to specify in the text all of the rights that the law was expected to protect.

I cannot pretend to know how the courts should carry out their responsibility to protect natural rights not mentioned in the Constitution . My ideas on the subject differ considerably from those of Professor Jaffa, though I would certainly grant that most desirable things are not natural rights. My point is only that the objection that a particular decision is premised on a right not fairly discoverable in the Constitution itself is not a meaningful objection. It is the very idea of nontextual rights that is itself thoroughly and repeatedly found in the text of the Constitution.

There is no question that nontextual rights give tremendous power to the courts. But so does all constitutional interpretation, and that is exactly what nontextual rights are, a matter of constitutional interpretation.

There are numerous examples of protection of natural rights by the Supreme Court which are not the slightest bit controversial. One of my

favorite cases is Youngberg v. Romeo, 457 U.S. 307 (1982), in which a profoundly retarded man was involuntarily committed to Pennhurst Hospital in Pennsylvania. The patient, by his mother, subsequently sued members of the hospital staff for damages for violation of his constitutional rights to safety, freedom of movement and training. While Justice Powell's opinion is sometimes described as a setback for the idea of a right to habilitation, all the members of the Court found that the involuntarily committed patient has a constitutional right to "adequate food, shelter, clothing and medical care," safe conditions, to be free from undue bodily restraint and to such training as would ensure safety and freedom from undue restraint.

Youndberg is not considered an example of an unrestrained judiciary.

But I defy anyone to find justification for the decision in the text of the Constitution or in the history of its adoption. Essentially, the Court reasoned that if a prisoner in jail would have these rights under the eighth amendment, then surely an involuntarily committed mental patient must have them even though the eighth amendment does not apply to such a patient.

I hope Youngberg illustrates that Roe v. Wade, 410 U.S. 113 (1973), the abortion case, is not all that constitutional interpretation has to offer. The Supreme Court generally is very good at forcing governments to apply principles they themselves acknowledge, but have sacrificed to budgetary or other passing concerns.

The broadest nontextual principle utilized by the Supreme Court, again generally noncontroversial, concerns justification. The Court has consistently required all government action limiting the freedom of the individual to be justified by reasons.

Judge Bork referred to this principle of requiring justification when he testified that even though the equal protection clause should not be read to include women, a preposterous suggestion of itself, discrimination against women might still be unconstitutional because such discrimination would be utterly arbitrary. I realize that Judge Bork has criticized the justification principle as unwarranted, (The Constitution, Original Intent, and Economic Rights, 23 San Diego L. Rev. 823, 829 [1986]) so perhaps I misunderstood his testimony.

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The justification principle is not found in the text of the Constitution and certainly not in the history of its adoption. While one may argue that justification is implied by the federal government's enumerated powers, no such argument can be made with regard to the powers of the states. If it is true that even a State Government must justify its actions, it can only be because that requirement is implied by the framers' general understanding of the relationship between the individual and the community. But if we accept the legitimacy of standards like that, the original intent position has lost all of its promise as a restraining principle.

The justification principle has led to two corollaries, one of quite recent vintage. The first implication is that the greater the invasion of individual liberty, the more substantial the government's justification for its action must be. The second corollary is that hostility by itself is not a justification for taking someone's liberty.

I think you can view most of the Court's successes and failures through the lens of the justification principle and not reach the debilitating question of where certain rights are derived. For example, it is clear in Griswold v. Connecticut, 381 U.S. 479 (1965) that the State was visiting a substantial invasion of individual liberty by prohibiting a married couple from using birth control.

It is also clear that the State's justification for this infringement was quite trivial. Conversely, in Lochner v. New York, 198 U.S. 45 (1905), a case invalidating a maximum hour provision for bakers, the Court adopted a bloated view of the liberty at stake without giving much credit to New York's asserted justification.

In the very weak opinion written in Roe v. Wade by Justice Blackmun, one sees the breakdown of the justification principle. I do not understand those who say a pregnant woman lacks privacy rights in the decision whether to have an abortion. It seems obvious to me that a law requiring a woman to remain pregnant invades her liberty in the most extreme sense. However, the State of Texas offered the most basic justification for the infringement of liberty that any government can offer: the protection of human life. The crucial issue before the Court was the harsh question of when the interests of the woman must be vindicated despite 16

the ensuing death of the unborn child . But instead of addressing that real question, the Court refused to decide whether Texas had offered any justification at all by suggesting that maybe a fetus is not a human being.

In effect, the Court's doubt amounted to discounting the life of the unborn child altogether.

The second corollary of the justification principle - that hostility is not justification - has recently been illustrated in two important cases: Cleburne v. Cleburne Living Center, 105 S.Ct. 3249 (1985), which protected the right of the mentally retarded to live in a group home despite widespread prejudice against them, and Plyler v. Doe, 457 U.S. 202 (1982), in which the Court prevented Texas from denying schooling to children who were illegal aliens. In these cases the Court confronted deep-seated hostility against essentially helpless minority groups. The Court rightly examined the states' justifications for these provisions closely and with skepticism. Conversely, in Bowers v. Hardwick, 106 S.Ct. 2841 (1986), a case I think illustrates hostility legitimated, the Court allowed Georgia to maintain criminal penalties for homosexual sodomy even while suggesting that heterosexual sodomy is constitutionally protected. It is true that moral grounds, including immoral sexual relations, can be powerful justifications for any law. But Georgia was unable to show that homosexual sodomy was more immoral than heterosexual sodomy. Traditionally they have been equally condemned as unnatural. Nor was Georgia committed to enforcing its law. Hardwick was caught in the act, but no prosecution was brought. The refusal to prosecute confirms that pure denunciation of homosexuals was the goal of the State's policy.

I have gone on at some length to suggest how far the original intent approach is from anything like the work of the courts we have known.

Indeed that gap may represent an explanation for the defeat of Judge Bork's nomination to the Supreme Court. For all the misrepresentation of Judge Bork's positions, and I think on civil rights there were misrepresentations, the American people may have rendered a considered rejection of original intent methodology in responding to the Bork nomination.

At this point I must address the

disagreement between Professor Jaffa fad myself. I rather doubt that Professor Jaffa will reject the premises of my remarks about the Court's work, though I imagine he will dispute many of my applications. As I said at the outset, I do not consider such differences to be crucial.

What Professor Jaffa may regard as crucial, however, is my embrace of the living Constitution, the notion that we do not know and cannot know the content of the Constitution once and for all. In this, Professor Jaffa would no doubt lump me with Justice Brennan. Speaking for myself, however, I accept the living Constitution in the following sense.

In the next century three issues will present themselves to our legislatures and courts for resolution. One of these is the constitutional obligation of government to provide relief for poverty. The second is the constitutionality of government action that threatens the environment. The third is the constitutionality of massive nuclear response to attack. Obviously, at this time, there is no general constitutional right to welfare or other social services, and environmental protection and the continuation of human life on earth are totally outside judicial responsibility.

I anticipate that this state of affairs will continue for many years, possibly for my lifetime. But I do not think it will be permanent. I do not doubt that one day poverty will be seen as a greater threat to human liberty than censorship and that we will recognize a natural right of the individual to call upon his neighbors for help. I also think, though here I am not so confident, that such matters as the depletion of the ozone layer and the threat of nuclear holocaust will also be regarded as constitutional questions. This marks me as a living Constitution proponent.

From my perspective, though, it will not be the Constitution that has changed, but we who have changed.

The only reason that we cannot tell the end of the story, the only reason the list of natural rights seems to grow is that our understanding continues to expand. I think the Constitution protects the poor today just as I think the fourteenth amendment always banned segregation, but a judge cannot and should not attempt to step outside her own time.

A Federal Bar Exam:

Will it Lead to More Effective Trial Advocacy

•

In

our Federal Courts?

by Kimberly G. Roberts

hroughout the 1970s, then Chief Justice Warren Burger T called upon the American Bar Association to investigate the continuing debate and discussion over lawyer competency and advocacy. As a result of the Chief Justice's urging, the Judicial Conference of the United States created a committee to consider standards for Admission to Practice in the Federal Courts. That committee, chaired by the Honorable Edward J. Devitt, Chief United States District Judge, St. Paul, Minnesota, "was appointed to investigate the quality of trial advocacy in the federal courts and if deficiencies were found, to recommend ways that those deficiencies could be remedied:' To that end, the "Devitt Committee;' aided by the Judicial Conference, conducted a survey among federal trial judges and lawyers to obtain their evaluation of the magnitude of inadequacy among lawyers in federal courts.

In an interview published in the January, 1979, American Bar Association Journal, Judge Devitt said, "It was the unanimous opinion of the committee . . . that the problem of the quality of advocacy in the federal courts was sufficiently serious to justify the consideration of remedies." Those remedies referred to by Judge Devitt were unanimously approved by the Judicial Conference on September 20, 1979. The report and accompanying recommendations appear in 79 F.R.D. 187 and include: • a federal bar exam • experience requirements • peer review programs • student practice programs • continuing legal education Morever, the "Devitt Committee" proposed the institution of pilot districts to implement these recommendations. Additionally, a special committee of the Judicial Conference was formed to monitor the pilot districts to determine the "feasibility and practicality" of the proposals. Under the chairmanship of Hon. James Lawrence King, Chief Judge United States District Court, Miami, Florida, the "King Committee" set out to formulate plans for each of the Devitt proposals to be implemented in 14 pilot districts nationwide. Thirteen District Courts ultimately participated.

In September 1985, the King Committee reported its "favorable assessment of each of the program elements" and its "recommendations for broader adoption'' of the elements in other districts. Nonetheless, the discussion and debate is ongoing with respect to one of the remedies endorsed by the King Committee, that of a federal bar examination.

The notion of such an exam was not new to the Devitt Committee when it was initially formulating its recommendations to improve lawyer advocacy in the federal courts. In 83 F.R.D. 235, Adrian A. Spears writes about a "45-Year Success Story" in the Western District of Texas.

There, local admission rules require all applicants residing in the Western District of Texas and all non-resident applicants to pass a written exam before being certified to the court for admission. The examination is composed of 50 objective questions designed to test the applicant's knowledge of the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of Evidence, Federal Jurisdiction and Venue, the Bankruptcy Rules of Procedure, as well as Local Court Rules. And like the objectives enunciated by the Devitt Committee, the exam required by the Western District is designed to demonstrate an applicant's knowledge of federal practice subjects.

As indicated below, the Devitt Committee's federal bar examination recommendation was implemented by seven of the pilot districts monitored by the King Committee.

To date, all but the Southern District of Iowa continue to require an examination on federal practice subjects. In the Southern District of Iowa, applicants have the option of taking the supplemental examination or, choosing six hours of continuing legal education.

Much has been said about the King Committee's report that exams intended to insure a "minimum level of familiarity with federal practice and procedure ... contributed significantly to improving the level of (the) appliants' knowledge of federal practice subjects essential to fully effective advocacy." What has received less attention is the lone dissent to the majorities conclusion by Hon. A. Leon Higginbotham, Jr., of the U.S. Court of Appeals for the Third Circuit. Higginbotham strongly rejects the notion that federal courts should adopt and support supplemental federal exams as a prerequisite to admission to the federal trial bar. His argument is threefold: • The level of incompetence among trial lawyers has been grossly overestimated.

• Assuming an inadequacy among the trial bar, there has been little or no evidence indicating increased lawyer advocacy attributable to a supplemental federal bar exam.

• The probable pernicious impact of requiring a supplemental examination greatly outweighs any speculated advantages. spoke with Judge Higginbotharn's colleague, the 17

HON. CAROL LOS MANSMANN of the Third Circuit Court of Appeals seeks to increase the level of competency within the federal trial bar while ensuring the maximum accessibility to practice in the federal courts. She also believes that lawyers need to brush up on evidentiary rules before trying cases in the federal courts.

Hon. Carol Los Mansmann, a Duquesne School of Law graduate and U.S. Circuit Judge, U.S. Court of Appeals for the Third Circuit, about many of the specific concerns articulated in the Higginbotham dissent. That discussion follows .

As previously mentioned, Judge Higginbotham first disputes the degree of incompetence among members of the trial bar. He summarized the Devitt Committee's findings in the following chart: District Judges' Ratings of Lawyers' Trial Performances Number of Performances Percent Rating Category 412 20.9% First rate 26.3 517 Very good 27.0 532 Good 328 16.7 Adequate but no better 5.1 Not quite adequate 100 52 2.6 Poor 17 0.9 Very poor 0.6 Not rated 11 1,969 100.0% TOTAL Higginbotham cited that "only 3.5% of the performances were either poor or very poor" while only "5.1% were not quite adequate:' More positively stated, Judge Mansmann agreed that "the majority of the federal trial lawyers are doing the job pretty well:' When asked whether she could

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pinpoint one particular area of concern, Judge Mansmann quickly offered "the proper, rather than the improper use of objections and the proper grounds for objections." I suggested that the proposed supplemental exam tested knowledge of the Federal Rules of Evidence. Judge Mansmann reminded me that the Multistate tests knowledge of the very same and added that lawyers could and should ''brush up" on evidence rules before going to trial. "An exam will not afford the litigator the needed familiarity with the federal rules necessary for trial advocacy:' Both Higginbotham and Mansmann agree that their disagreement with the King majority's support of a federal bar examination does not mean that the bar should accept only a minimum standard of competence. Quite the contrary. Both desire continued cooperation between the bar and its members in an attempt to improve the quality of advocacy in the federal and state courts. Each supports the King Committee's proposed emphasis on continuing legal education offered by the state and local bar associations, such as the Pennsylvania Bar Institute (PBI), which aid in the improvement of lawyer competency. She added that the increased controversy surrounding the issue of lawyer adequacy had sparked even more of an awareness amongst the bench and bar and has generated an increased effort to formulate plans for improved lawyering skills.

Higginbotham next contends that there is "no evidence - emperical or otherwise - indicating that there has been

any improvement of lawyering skill in the pilot districts attributable to the imposition of the supplemental examination . .." He continues, "the Committee was obligated to explain and justify the rationale that compels it to impose an additionally unique burden on young lawyers of America ." Throughout the pilot program evaluation period, Higginbotham urged King Committee members to authorize additional studies prior to making specific recommendations regarding implementation of a federal bar exam.

Those studies suggested by Judge Higginbotham included a repeat of the original "lawyer competency" survey conducted by the Judicial Committee, a study comparing degrees of advocacy in pilot districts verses non pilot districts and a study detailing the "changes in composition - by race, gender, and economic status - of the bar" resulting from implementation of a supplemental exam. He suggests implementation is analygous with radical surgery, suggesting that, "assuming a disease exists, the unintended side effects may be more dangerous than the targeted disease:' When speaking with Judge Mansmann, I did not specifically address the adequacy of evidence regarding the Committee's support of a supplemental exam. We did, however, discuss potential aspects of its widespread adoption. Judge Mansmann pointed out that the existing trial bench and bar had never complied with such a requirement. Furthermore, she sees no justification for "grandfathering in" lawyers currently admitted to the federal district court. Her thoughts are similar to those quoted in the Higginbotham dissent from an article entitled Lawyers Competence and the Law Schools, "Since there is near universal agreement that the quality of law students being accepted by and graduated from today's law schools is substantially better than those being produced 25 years ago, one would think that if anybody needed to be tested for incompetence, it would be the very lawyers that the Committee proposes to 'grandfather':' Mansmann was equally concerned about the perception of "elitism" which could result from having lawyers fully competent to practice in state courts subjected to an additional requirement in order to practice in federal court. Quoting from a letter written to the Devitt Committee, Higginbotham offered, "The proposal would establish a new level of status within the trial bar, with the elite segment holding a newly created monopoly:' Judge Mansmann suggested that such a monopoly could be "easily overcome by the larger firms able to expend the additional cost and time necessary to prepare new associates for a supplemental exam." However, she recognized that many more would be unable to overcome the additional burden. Mansmann reiterated her desire to increase the level of competency within the federal trial bar while insuring "maximum accessibility to practice in federal courts."

To date there have been no further developments with regard to widespread adoption of a federal bar examination. Jean Coates, a Judicial Conference representative, explained that the individual districts may or may not choose to implement any of the King Committee recommendations. In addition she was unaware of any that have chosen to adopt the exam requirement. That in itself may be the most significant commentary of the Committee's recommendation.

Kimberly G. Roberts, the Alumni Editor for Juris, is a third year evening student. She currently clerks for the Pittsburgh firm of Berkman Russlander Pohl Lieber and Engel.

19

Future money

New questions, new laws affect pensions

by J. Kenneth Myers

P

ension plans are important to employees because upon retirement they depend on the imcone that the pension plan provides. Increasingly, the status of pension plans is of great concern. Many questions arise concerning underfunding and overfunding of pension plans.

Other questions concerning pension plans deal with what happens to the plan if a company goes bankrupt or merges with another company. What are the remedies if a pension plan becomes insolvent? Richard T. Kennedy, who has been an attorney with Thorp, Reed, and Armstrong of Pittsburgh for over three years and who has worked in the field of employee benefits for ten years, offers explanations to some of the problems involving pension plans.

According to Kennedy, in order to understand the problems concerning pension plans, the purpose and types of pension plans must first be discussed. The Employee Retirement Income Security Act (ERISA) defines a pension plan as a fund program or arrangement which provides retirement income or defers compensation until the termination of employment or beyond. The definition includes qualified plans, non-qualified plans, deferred arrangements, and even individual employment contracts.

Mr. Kennedy states, "Pension plans are important because when a person stops working, he needs to have money on which to live. Retired employees receive income from social security, company maintained plans, and individual savings on the part of the employee. Because it is often difficult for employees to save money for retirement in this country, employer provided retirement income becomes very important:' Various types of pension plans are known as qualified pension plans. A qualified pension plan is nothing

20

more than a pension which satisfies the requirements for qualification which are set forth in the Internal Revenue Code. Kennedy explains three advantages of the qualified pension plans. "The employer receives an immediate tax deduction for the contributions the employer makes to the plan, contributions made to the plan are not taxed to the employee until distributed to the employee, and the income accumulated under the trust maintained in connection with the plan is not taxed until it is distributed to the employee.

According to Kennedy, there are two types of qualified pension plans.

The first type is the defined benefit pension plan which defines the benefit to be provided to the individual participant at retirement. The employer contributes money to fund that benefit over the working life of the employee. The second type is the defined contribution plan. Defined contribution plans define the contribution which is contributed on behalf of each employee each year. The contributed amounts are held in an account for the employee, and at retirement the employee receives the contributed amounts plus any investment earnings. Defined contribution plans include the money purchase pension plan and the profit-sharing plan. The distinction between the two is that in a money purchase pension plan the obligation to contribute on the part of the employer each year is fixed generally as a percentage of compensation, and the employer must make that contribution regardless of profits. In a profit-sharing plan, contributions are made from profits, and the employer may have the discretion whether or not to make contributions each year," says Kennedy.

A key distinction between the

defined benefit pension plan and the defined contribution plan is the investment risk involved with each type. Kennedy explains the investment risk of a defined benefit pension plan by saying, "The risk involved is with the employer so if the investment performance is poor, the employer must then make up that poor performance over a period of years:' However, under a defined contribution plan the employee gets only what is in the account. If the investment performance is poor, the employee bears that risk. Kennedy states, "For example, individuals who contemplate retirement under a defined contribution plan and have their accounts heavily invested in the stock market may take quite a financial hit if the value of the stocks drop.

Such a hit could disrupt their retirement plans:' Investment risks are involved in each type of pension plan, but employers still choose to maintain a pension plan. According to Kennedy, large employers maintain plans for the purpose of attracting and retaining employees. Smaller employers are often motivated to maintain a pension plan because of the tax benefits provided by them .

Some large employers are terminating their defined benefit pension plans, and it appears as if they no longer have a pension program. Kennedy says, "What really happens in many cases is that the employer terminates the defined pension plan and replaces it with a defined contribution plan. The motivation behind that is the incredible surpluses that have accumulated in some defined benefit plans. Defined benefit pension plans are funded over the working life of an employee, and the benefits are paid to the individual upon retirement. The funds that have accumulated to pay the benefits are often more than neces-

sary because there are benefits yet to be earned.

"In many instances, when a plan is terminated there is more than enough money to pay-off all the benefits that have been earned to the date of termination, and sometimes this surplus is a very significant amount of money. A company that is struggling financially would terminate the defined benefit pension plan, use the surplus for corporate purposes, and establish a defined contribution plan for the employees .

Other employers may terminate their defined benefit pension plan and replace it with a defined contribution plan because of legislative proposals to increase the liability of an employer when the employer decides to terminate a defined benefit pension plan.

"Some employers view such proposals as taking away the incentives to maintain a defined benefit pension plan. Others may freeze their plans saying that there will be no more benefits earned under the defined benefit pension plan. The benefits earned to date are preserved and future benefits are earned under a defined contribution plan:' The situation is quite different for smaller employers. Small employers may receive tax benefits, but regulations concerning discrimination, contributions, and tax deductions are so complex that many small employers may be discouraged from establishing or continuing a plan . "Many owners of small businesses ask if it is better to go ahead and establish a personal retirement savings program rather than to establish a pension plan subject to complex regulations.

Many of these owners may get rid of all pension programs and let the employee take care of himself;' states Kennedy. That only leaves the employee of a small employer with social security and personal savings.

Because of the increasing complexity of regulations and terminations of defined benefit pension plans, questions may arise about whether it would be feasible to develop a national uniform pension plan. In 1979 and 1980, the federal government established the Commission on Pension Policy to study national retirement income issues. The Commission made a proposal to have employers make a mandatory contribution of a certain percentage of each employee's contribution with exclu-

sions for low service and part-time employees. According to Kennedy, many employers objected to this proposal. It was felt that mandating minimum pension benefits that would have to be provided to each employee was too intrusive. Kennedy states, "Because of objections in the past, mandated pension benefits will probably not be enacted by Congress in the near future:' Other problems with pension issues deal with underfunding.

"Pension plans are important because when a person stops working, he needs to have money on which to live . . . because it is often difficult for employees to save money for retirement in this coutry, employer provided retirement income becomes very important."

- Richard T. Kennedy

Underfunding is only important in the context of defined benefit pension plans because in defined contribution plans benefits are provided solely by the funds in the account.

Therefore a defined contribution plan, by its nature, is always fully funded. The concept of underfunding in defined benefit pension plans is an ambiguous concept, but two funding concepts can be examined .

Kennedy states, "The first concept is funding on the assumption that the plan is ongoing. There are minimum funding standards in the Internal Revenue Code that require an individual's pension be funded

over a given period of time. In effect, benefits must be pre-funded. The second concept is funding on a termination basis. In that case, only the benefits that have been earned to the date of termination must be funded .

"By contrast, on an ongoing plan basis, the employer has the obligation to fund benefits to be earned in the future. When the plan is terminated, that obligation ends, and the only real question is whether there is enough money in the plan to pay all the benefits earned at termination.

Usually, when a pension plan is terminated, an annuity contract is bought from an insurance company.

It is then known whether there are sufficient funds to pay for all benefits.

If there are sufficient funds, the plan is funded on a termination basis."

The role of the Pension Benefit Guaranty Corporation (PBGC) in assuming underfunded defined benefit pension plans has been subject to recent legislative change.

Before the Single-Employer Pension Plan Amendments Act of 1986 (SEPPAA) was enacted, any employer could voluntarily terminate its pension plan . The question of whether there was enough money to fund the guaranteed benefits of the plan was then asked. According to Kennedy, guaranteed benefits are vested benefits at plan termination subject to a dollar limitation and a five-year phase-in of benefit increases. If there was not enough money to fund the guaranteed benefits, the employer was then liable for the guaranteed benefits up to thirty percent of net worth. Problems arose when a company did not have net worth. Such companies would terminate the pension plan, and the PBGC would assume the obligation to pay benefits.

Kennedy explains, "SEPPAA changed all that because now an employer can only terminate a pension plan under two situations. The first situation is the standard termination. Under standard termination, there must be sufficient assets to fund all benefit commitments. Benefit commitments are guaranteed benefits at plan termination plus plant closing and early retirement supplements or subsidies to which employees are entitled at plan termination. If there is enough money to pay off all the benefit commitments, the employer can still voluntarily terminate the plan.

21

"The second situation exists if the plan does not have sufficient funds to cover all benefit commitments. The employer may then terminate the pension plan only by a distress termination . However, in that case certain financial criteria must be met . If the employer is liquidating in a bankruptcy proceeding, the employer can terminate the pension plan . Also, if the employer is reorganizing in a bankruptcy proceeding, the employer can terminate the plan with the authorization of the bankruptcy court. An employer may also terminate a plan in a distress termination if the employer demonstrates that it could not continue in business without terminating the plan, or that pension costs have become unreasonable because of a decline in work force ."

The opposite of underfunding is overfunding. Kennedy states, "Overfunding is usually viewed on a plan termination basis. When a defined benefit pension plan is terminated, the important question is whether there are sufficient funds to pay for the benefits earned by all the employees prior to termination. If there are funds in excess of that needed to pay for all those benefits, that is overfunding on a termination basis. Overfunding is a good practice from the perspective of the employee, because there are enough funds to provide all benefits that have been promised to the employee. Overfunding is a good practice from the perspective of the employer because there is a cushion that allows flexibility in funding the plan in the future .

In a defined benefit pension plan, there is a funding standard account that is statutorily required for ongoing pension plans. The balance in the funding standard account does not necessarily match-up to overfunding on a termination basis, but if the employer has a balance in the funding standard account, the plan is generally fully funded or overfunded on a termination basis. If the plan is overfunded, the employer may be more willing to grant increases to retirees or benefit increases to those who will retire in the future:' When there is overfunding, there are enough funds to pay all benefits promised to employees. However, not all pension plans are solvent.

Some plans become insolvent or have insufficient funds to pay benefits.

22

Kennedy explains why insolvency of a pension plan may occur. "Contrary to public belief, defined benefit pension plans are usually fairly well funded . However, that is not always the case. The employer could establish a defined benefit pension plan promising to pay employees a benefit for years of service completed before the plan was established . In such a case, there would be an initial high level of liability that will have to be amortized over a period of years under the minimum funding standards. The same result can happen by granting benefit increases to retirees for past service completed, instead of giving benefits promised for past years by current employees. Problems could arise if the value of plan investments go down and the assets available to pay for the promised benefits decrease. It is worse in mature industries such as the steel or auto industries. The work force has contracted enormously and many pension plans provide plant closing supplements. Paying the supplements is very expensive, and some actuaries did not include that in calculating the funding of a pension plan or, if they did make assumptions about plant closing, the assumptions were low."

Sometimes a company that is having financial difficulty is acquired by another company. When the acquisition takes place, what happens to the acquired company's pension plan?

Acquisition takes place by either an asset sale or a stock sale. Kennedy states, "When a stock sale occurs, an acquiring company assumes all the assets and liabilities, including the pension liabilities. Although in a stock sale, a pension plan can be terminated before the deal closes. In an asset sale, the buyer assumes only the assets and liabilities that are expressly assigned. In a pension context, it is the same. The buyer may assume all of the liability for a pension plan or only part of the liability for the pension plan. It really depends upon what the parties negotiate. If there is a distinct pension plan covering the employees involved in the sale, the buyer may assume the entire plan. If the seller maintains a pension plan covering more than the employees involved in the sale, the seller may transfer the liability and corresponding assets for the employees involved in the sale from its pension plan to a pension

plan established by the buyer. Alternatively, the seller could retain all liability in an asset sale for the pensions earned to date, or the seller could retain just the retiree liability.

The same may be done with a defined contribution plan. However, defined contribution plans are not much of a concern because the liability is exactly equal to the assets in the plan:' Where pension plans are concerned, employers make things happen. Employers may adopt pension plans, terminate pension plans, amend pension plans, and administer pension plans. What happens if the employer is taken away? Kennedy says, "When an employer ends business, the employer will wrap up benefit matters. The employer will often terminate its defined benefit pension plans. If there are sufficient funds in the defined benefit pension plan, it is a very simple process. All that is necessary is to get the requisite government approvals and to buy an annuity contract from the insurance company. The participants will look to the insurance company in the future for pension payments. If the plan has insufficient funds and the employer still takes voluntary action to terminate the plan, the PBBGC will become responsible for the payment of all the guaranteed benefits. If the employer abandons the pension plan, the PBGC as a general policy comes in and takes over the plan and pays the guaranteed benefits:' In conclusion, Kennedy states, "The law is changing at an incredible pace. There was ERISA in 1974, the Tax Reform Act in 1976, the Revenue Act of 1978, technical corrections in 1979, the Multiemployer Pension Plan Amendments Act in 1980, the Economic Recovery Tax Act in 1981, the Tax Equity and Fiscal Responsibility Act in 1982, the Retirement Equity Act and the Tax Reform Act in 1984, the Tax Reform Act of 1986, and the Budget Reconciliation Acts. The law has become so complex and time consuming that it has created more costs and confusion for employers. That in itself has almost become a disincentive to establish pension plans."

J. Kenneth Myers, a third year day student, is an Associate Editor of Juris. He has a bachelor's degree in English from Washington and Jefferson College.

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