Juris Magazine- Spring 1993

THE DUQUESNE LAW SCHOOL NEWSMAGAZINE VOLUME26

NUMBER3

SPRING 1993

up front

]UlUS

Folks, Over the past few months, Duquesne Law School endured what werefor a law school - a couple of gutwrenching experiences.

As most of you know, at the end of this school year "Dean Sciullo" becomes "Professor Sciullo". The centerpiece of this edition of juris is, we hope, an appropriate tribute to a man who' s had an important hand in the careers of so many people.

The search for a new dean has been underway since last Summer. I was among the students who met with the candidates for the job. It was fun; God and Professor Fisfis willing, I won't be here next year, so I was free to ask any fool question that popped into my head without worrying too much about any comeuppance. We forgot to ask whether any of them had ever paid their babysitters under the table, and I could kick myself for not pressing harder on the j.D.'s-for-hostages rumors, but they seemed like good enough people, and Special Prosecutor "Gravy Train" Walsh probably has enough on his hands, anyway.

The new dean will be Duquesne's General Counsel, Nicholas Cafardi. Mr. Cafardi was kind enough to provide us with a brief statement, wh ich appears in the "On Campus" section.

The second-leading cause of ulcers up here on the Bluff has been the ABA's re-accreditation process. With around 90% of Duquesne Law grads passing the Bar exam every year, re-accreditation is a gimme, but the process still hasn't been a picnic. Some of the students seemed to enjoy the chance to kvetch, but I reckon you ' d have to walk a long way before you found a group of people who get more pleasure out of complaining than law students. Complaining for us is kind of like watch ing Mary Tyler Moore re-run s - it's not very exciting, but it does pass the time.

And complain ing to the ABA was particularly gratifying; those folks wro te down everything, including the stuff we made up.

For a change, I didn' t have anything bad to say. I like to think I can whine with the best of them, but the ABA people kept asking fo r my opinion "as ed itor of juris" and on th at score have got no complaints.

Since the day they gave me this job, I've received too much help from too many people to complain.

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THE OUQUESNÂŁ LAW~LN[WSMAGA.Z. IN[

departments

Our student staffers work long and strange hours, but juris isn't what it is solely through the efforts of the people whose names you see in the masthead. It seems that our staffers can knock on the doors of anyone who is or has ever been associated with Duquesne Law School, and be welcome. When we asked for help from the judges down on Grant Street, they always cam e through . Most of the faculty has helped out in one way or another. Ms. Tasillo, Mrs. Fagan, Mrs. M cBride, Leean, Maureen and jan Daschbach w ere always looking out for us. On the day the ABA arrived, Brigitte the Cleaning Lady came around to make sure that our ashtrays were polished.

And when we needed com ic relief, the Student Bar Association was right next door. If only certain profs would take the Mand atory Attendance Policy a little less seriously, we'd have nothing to complain about...And then, of cou rse, w e'd really be miserable.

See how it works? Everyone does what they can.

Up Front

2

On Campus

4

Alumni News

6

Recent Decisions

34

At the Sidebar

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on our cover john Sciullo, Dean of Duquesne U niversity School of Law since 1982, is retiring from office to return to teaching. We've dedicated this issue of juris to Dean Sciullo ... Thanks for everything. Photo by Susann Schneider.

Juris is a stud ent publication of the Duquesne University School of Law. View s and opinio ns expressed herein are not necessarily those of juris o r of Duquesne University. juris, 900 Locust St., Pittsburgh, Pennsylvania 15282 Tel. (412) 434-6305 Copyright 1993 Duquesne University

CJ Rapp Editor-in-Chief

Juris

contents A Judicial Opinion, by the Honorable }. Warren Watson

7

Grant Street Shuffle II, by Valerie A. Catesman

8

A Challenge for Pa. Firefighters, by Paul Hornick

10

Genericide: The Killing of a Trademark, by Glenn E. Camus

12

Career Paths to Partnership-Which Way Is Up?, by Amy F. Haduch

14

Opening the Profession, by Daniel W. Deitrick

16

Hitchhiker's Guide to the Law School, by Susan Malie

17

SO LONG, DEAN SCIULLO Spiritus Est Qui Vivificat, by Elaine Marie Tomko

20

Congratulations on a Job Well Done, by Professor Raymond Sekula

24

Student Perspectives

25

Some Property Law They Don't Teach in School, by Ken McKay

Duquesne Law: A Family Practice, by john and Colleen Finnegan

26 28 30

Pa. Supreme Court Changes Child Support Rules, by Chester Beattie

34

When the Law Doesn't Work, by Carol Cusherowski

36 38

Enforcement of Foreign Judgments, by Thomas A. Slowey

America's Funniest Criminals, by Michael Zimecki

C J Rapp Editor-in-Chief laurie R. Gibbens Executive Production Editor Rebecca Mastrangelo Assistant Production Editor Mary Ellen Howard layout Editor Hector Torres Graphics Editor Susann Schneider Photography Editor Photographers Michael Fiorentino Alan Hader Art Staff lisa Graniero Amy E. Kovac Patricia L. Simpson

Spring • 1993

Tina Oberdorf Senior Editor Craig A. Barr Recent Decisions Editor Articles Editors Sally R. Miller Michael Zimecki Contributors John D. Finnegan Valerie A. Gatesman Brian Kane lisa A. Martino jean A. Milko john E. Murray, Jr. Mark Palmer Henry M . Sneath Arlen Specter ]. Warren Watson lynn Yeakel Mark D. Yochum Stephen W . Zoffer

Susan Malie Executive Managing Editor Copy Editors Tricia Doyle Karen Edwards Alice Rudolph Business Staff William ]. Gagliardino Bob Gold Walter ]. Nalducci Brian Opalka Kimberly A. Peters james P. Sheets Student Organizations Coordinator jan Daschbach Faculty Advisor Raymond Sekula

Staff Editors Michael Alfieri John Basial Constance Collins Suzanne Filiaggi Amy F. Haduch Peter ] . Payne, Jr. Tammy Sarver louis Smith II Thomas ]. Welsh Front Line Editors William F. Caye Ill joanne E. Cohen Daniel W . Deitrick Martin R. Egna Carol M. Gusherowski Warren Haines Darnell Moses Kimberly Koerner Sandra Richetti lorraine A . Smith

Writers Chester Beattie Karen Bonvalot Anna Borro Glenn E. Camus Thomas Crowley lisa DiCerbo Colleen Finnegan Deron Gabriel Joyce Ann Gallagher Christina L. Gill Thomas Hall Paul Hornick Douglas Hottle Paul Krepps jessica Madden Kenneth McKay Melanie Naro Brian Parker Angela Marie Rhad Raymond M . Roberts Thomas A. Slowey Terri L. Taylor Elaine M . Tomko Anna Valla Paul Walsh John B. Wells Steve Wirth

II

Message From Newly Appointed Law School Dean "I appreciate the trust that President Murray and the Law School faculty have placed in me in making this appointment.

I look forward to working with them, the students and the alumni to ensure a bright future for Duquesne Law School. Just as this University is recognized as one of the ten best Catholic universities in America, I believe that Duquesne Law School has it within its grasp to be one of the country's best Catholic law schools. I pledge my energy and my talents toward leading the Law School to that goal."

Education: Licentiate in Canon Law, University of St. Thomas, Rome; University of Pittsburgh, J.D .; Duquesne University, M .A. (Bachelor of Philosophy).

Nicholas P. Cafardi has been appointed Dean of the Duquesne University School of Law.

Employment Highlights: Vice President and General Counsel, Duquesne University; General Counsel, Diocese of Pittsburgh; Assistant Dean, University of Pittsburgh.

Ethics Program Presented Duquesne University School of Law presented on March 20, 1993 its first ailday CLE-Ethics program. Over one hundred lawyers gathered for sessions dealing with the Rules of Professional Responsibility. Half of the program took a unique approach, exploring the function

of the Rules and the habits of practice in the creation of the good lawyer. As a measure of the program's success, the participants were engaged in lively discussion as the long day drew to a close. Professor Mark Yochum anticipates repeating the program in the late summer.

Clelia Hoffman and Raymond Murphy represented Duquesne in the Gourley Cup Trial Moot Court competition (Judge jeffrey A. Manning, not pictured, coached the team.)

Students Host Clean Air Act Symposium The Environmental Law Society hosted a symposium on Clean Air Act implementation issues in Allegheny County on April 15. Citizen, corporate and government perspectives were represented on the panel.

The ELS is a student organization which seeks to improve human stewardship of nature through environmental Jaw. Activities designed to educate students about complex environmental issues as well as increase student access to the field of environmental law are integral parts of the ELS agenda.

(Clockwise from left) Professor Mike Streib (coach), Susann Schneider, Melanie Naro and Brian O'Leary represented Duquesne at the regional level of the ABA Trial Moot Court competition. The team advanced to the semi-final round.

II

Juris

Busy Spring for Women's Law Association The Duquesne Women's Law Association has been especially active this past Spring semester. On March 31, the association sponsored a panel discussion entitled, "Sexual Harassment in the Workplace". Professor Maureen Lally-Green, panel moderator, provided a general introduction to the legal issues arising from sexual harassment in employment settings. Caroline Mitchell, Esq., sole practitioner in Employment Discrimination Law, presented the plaintiff's perspective; the defendant's viewpoint was represented by Laura A. Candris, Esq., of Eckert Seamans Cherin and Mellot. Kathleen A. McKenzie, Esq ., member of the Women's Bar Association of Western Pennsylvania, discussed that organization's Sexual Harassment Education Project. The Project is designed to provide a public interest forum for groups of employers and employees to identify and deal with sexual harassment in their work environments, and is. incorporated into the Three Rivers Lecture Series.

April 12th marked the presentation of the "Duquesne University Women's Law Association Woman of the Year

Professor Maureen Lally-Green, Caroline Mitchell and Laura A. Cardis.

Award" at the association's first annual Awards Dinner. This year's recipient is Gretchen Haggerty, Esq ., vice-president and treasurer of USX. Attorney Haggerty was a member of the 1980 Duquesne Law

School graduating class. She is also a member of the boards-of-directors of three non-profit organizations and, in 1991, received the Triangle Corners Award for Celebration of Excellence.

ABA Accreditation Team-Student Forum During the recent ABA accreditation process, the student body of the Law School was invited to an open forum with the evaluation team to offer the student perspective of the Duquesne Law School experience. The five-member board, composed of both private practitioners and legal educators, used our old friend the Socratic method to elicit opinions from the students present. The board explained the accreditation procedures, which include tours of the physical plant, meetings with faculty, examination of academic offerings, recruitment facilities and library resources and contact with alumni and members of the legal and judicial community.

Employment opportunities and the career services program were the hot topics of discussion. Other areas addressed at the forum included quality of faculty, financial aid, research resources

Spring • 1993

and student activities. To the credit of the students and the law school, there was a healthy balance between criticism and compliments.

The board suggested that the students can play an active role in enhancing the Law School experience by encouraging faculty scholarship and

research and by strongly supporting student activities such as moot court programs and Law Review.

We thank the board for providing us the opportunity to be a part of the accreditation process, and we'll be eagerly awaiting the results of the review.

The ABA Accreditation Team talks with students.

II

Barbara M. Carlin For most of us, the opportunity to prosecute a federal criminal case or chat with john Updike would be the chance of a lifetime; for Duquesne Law graduate Barbara M. Carlin, it's a typical day's agenda.

Although Ms. Carlin has been an attorney for only ten years, she has enjoyed an especially challenging, diverse and interesting career.

Ms. Carlin (L'82) began her legal career as a law clerk for the Honorable Carol Los Mansmann who was then a U.S. District judge for the Western District of Pennsylvania. In 1983, Ms. Carlin accepted a position as an Assistant United States Attorney, Civil Division. During her six years in the Civil Division of the U.S. Attorney's Office, Ms. Carlin represented the United States in a variety of litigation which included government contracts and loan actions,. bankruptcy actions, civil rights matters, employment discrimination cases, and IRS tax issues. She also represented the Department of Justice and originating countries in requests for international judicial assistance pursuant to the Hague Evidence Convention.

In 1989, Ms. Carlin transferred to the Criminal Division of the U.S. Attorney's Office and has been a prosecutor in that Division for the past four years. She handles a diverse caseload encompassing mail, wire, bank, and credit card fraud; civil rights violations; conspiracy; firearms violations; money laundering and interstate transportation of stolen property.

The scope of her work responsibilities allows her to interact with investigators from the FBI, ATF, Defense Department, Post Office, and USDA. Ms. Carlin emphasized that her position is a "roll up your sleeves" job involving time-consuming investigative work as well as courtroom work, but she enjoys the challenges every case presents.

II

One of her most memorable cases involved a fraudulent "advance fee-forloans" operation based in Pittsburgh.

Previous injunctions obtained by the Government against the elusive perpetrator were ineffective as he continued to move his scheme from state to state. After thousands of victims had been bilked out of nearly four million dollars, the Government finally tracked him down, Ms. Carlin was successful in obtaining indictments and convictions for mail fraud and money laundering; the criminal mastermind received a prison term and was ordered to repay the defrauded victims.

Ms. Carlin earned her undergraduate degree in English at Duquesne, and went on to graduate and postgraduate work in English and Education.

She taught at primary and secondary schools in the Pittsburgh area, but is most proud of her years as a teacher for House of Good Shepherd, a home for delinquent high school age girls in Baltimore. Ms. Carlin believes that the opportunity to contribute to both the academic progress and personal growth of those students was one of her most rewarding experiences.

Ms. Carlin's undergraduate studies fueled her interest in literature, particularly in poetry. She became a coordinator of the International Poetry Forum, inspired

by Samuel Hazo, one of her Duquesne professors. Ms. Carlin was managing editor of Byblos Press, Pittsburgh, and administered the Poets-in-Person program.

This program arranges and promotes visits to high school students by poets and novelists. Her involvement with these programs has afforded Ms. Carlin the unique opportunity to personally discuss works of literature with a number of well-known literary figures (including Mr. Updike!).

Despite her career demands, Ms. Carlin remains active in a number of professional organizations including the Allegheny County Bar Association, Women's Bar Association, American Bar Association, Pennsylvania Bar Association, American Trial Lawyers, and the Federal Arbitration Committee, to which she was appointed by U.S. District Court judge Maurice B. Cohill.

Ms. Carlin remembers her Duquesne Law School years as an enjoyable experience and stresses the value of the clinical internships offered by Duquesne in preparing law students for a variety of practice disciplines. Her future goals include the use of the skills she has developed to continue to serve the general community, both personally and professionally. Based on Ms. Carlin's accomplishments those goals are easily within her reach.

Mary Ellen Howard is a third year day student.

Juris

A Judicial Opinion

by The Hon. J. Warren Watson I once had a friend who compared life to a pinball machine. He saw the ups and downs as the bumpers and flippers, and was always prepared to make the most of each directional change. This approach eliminates the very idea of obstacles. It works well for me.

Aside from the many menial jobs I have held, my employment history includes: Adjuster for the Workman's Compensation Bureau, Commonwealth of Pennsylvania; Assistant Solicitor for the City of Pittsburgh ; Associate Professor in the School of Continuing Education for Duquesne University; Guest Lecturer for Penn State University, Robert Morris College and Duffs Iron City Institute; and Teacher at Pittsburgh Technical Institute and Business and job Development Corp .

I now find myself completing nearly 40 years at the Bar, including 27 on the Bench . Since my recent retirement, I have been serving as a Senior judge in Allegheny County. Lawyers may not have "seen it all" , but we do experience quite a bit.

I thought you might be interested in some of the odd things that have happened in the courtroom during my tenure on the Bench .

I have served for 12 years on the Orphan's Court . In the past, the Orphan 's Court was more closely associated with Civil Commitment cases. These cases are initiated when a person exhibits unusual behavior, and is brought to a hospital or other catchment facility for a mental examination. A hearing follows. The object is to provide help to people who cannot help themselves .

Strange things often happen during cases involving Incapacitated Persons (formerly "Incompetents" ). We do not consider these people objects of humor; it is our job to help take care of them .

However, it is a fact that, in the course of these proceedings, remarkable things occur .

During an appeal from a decision by one of our Hearing Officers, I had occasion to listen to testimony by an elderly lady, who, I became convinced, needed care. At issue was only where she should receive such care. The attorneys debated the relative merits of different facilities,

Spring • 1993

and I joined in to offer my thinking. After a while, the lady picked up her bag of papers and said with sincerity, "Thanks, Judge. Let me know what you decide. I'll be at home."

One of our respondents was in the manic phase of a bipolar disorder. He believed it was imperative that he get to Washington, D.C., to alert the president to an impending national emergency. During another hearing, it was necessary to turn out the fluorescent lights. The respondent was convinced that they gave off harmful rays. These are the sorts of people we try to help.

People periodically get ideas for ways to take advantage of Incapacitated Persons . In one instance, a housekeeper to a male respondent in a case before me obtained a license, and married him . As the Incapacitated Person had no legal authority to enter into a marriage, an annulment proceeding was successful. A short time later, the housekeeper took the man out of state and married him again .

This marriage was, of course, also annulled, and the woman is now under arestraining order.

Another person induced a respondent to marry her, and to favor her in his will. The intent here was readily ascertainable; the man was worth $150,000. Immediately following the wedding, the new bride arranged to purchase a $99,000 con dominium and a $50,000 BMW automobile . We were able to set aside all these arrangements, including the marriage.

During the course of a hearing on whether she was responsible for spiriting the incapacitated person away from his guardian, the young lady refused to divulge his whereabouts . This was one of the few times it was necessary for me to jail someone for contempt.

In another case, an unusual situation developed regarding a family member who was an observer in an incapacitated person's case (People associated with incapacitated persons often appear to need as much help as the respondents.) This observer's strange comments led us to believe she was worshipping the Devil. What was worse, she used the rest room in such a way that it

and the lawyer's lounge were rendered uninhabitable. Some of the furniture was past saving, and the entire floor smelled foul.

My tenure on the Orphan ' s Court has been very rewarding . I regard it as noteworthy that as long ago as 1683 the Provincial Legislature, at the request of William Penn, had the foresight to create such a court. The statement read as follows: "That the judges of each respective County Court shall sitt twice every year, to inspect and take care of the estates, usage, and employment of orphans, which shall be called the Orphan's Court, and sitt the first day of ye week, in the first and eighth month yearly; that care may be taken for those that are not able to take care for themselves ."

Emphasis added. judge Watson graduated from Duquesne Law School in 1953.

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GRANT STREET In our Fall issue, we did what we could to help show you the difference between a Secondary Desk and a Foto Hut counter. However, it seems that the sight of Duquesne Law students wandering, dazed, between the Courthouse and the City County Building is still more common than not. So once again we'll take a shot at trying to explain some of the nuts and bolts of the blue-taped maelstrom of our local court system.

OBTAINING A WRIT In the first installment we showed you the moves requisite to having a writ served on a defendant. But, we left you to pester beleaguered county employees when it actually came to retrieving one after you've filed your complaint. General Division, as is most always the case, requires the mastery of a few more dance steps.

General Division Mambo to the Prothonotary's Office, to which we refer as the dance floor, embracing your complaint and two cover sheets securely in your arms. One of these cover sheets will be stamped in official red ink by the official prothonotary to signify the officialization of "the writ", which, in turn, may be picked up by you the following day. Now you need to determine at which of four desks, A through D, your particular writ will be waiting for your pickup. When you filed the complaint you should have received a small yellow receipt upon which the cashier stamped the case number. Case number

The Paper Desk

El

in hand, one, two, cha-cha-cha to the cashier's alcove. On the right wall of the alcove is a bulletin board with a grid labeled "Prothonotary's Desk Chart". It isn't just an artsy wall-hanging placed there for your viewing pleasure. Match the last two numbers of the case number with the same two numbers on the grid and follow the column in an upward fashion. The letter at the top is the desk where the writ may be found. Go to the desk indicated by the chart, and present the clerk with your receipt or case number. The clerk will then give you the writ and ask you for your autograph to acknowledge your receipt thereof.

Arbitration Division Due to the number of people who appear pro se in arbitration, writs for arbitration actions are issued immediately after the filing of the complaint. So, after the complaint is filed, take your cover sheet and receipt to the back office, which is located to the left of the filing desk. Go behind the counter to the second row of desks on your right. At the first desk in this row you'll see a small sign embroidered in lovely brown and white yarn which reads, simply enough, "WRITS". You will there be greeted by a lady named Bernice.

Give Bernice the case name and number and she'll give you what you came for.

HOW TO GET A FILE Suppose your boss needs a copy of a pleading that he, excuse me, the secretary, inadvertently misplaced. Bail him/her out by doing a two-step to the paper desk, which, curiously enough, is made entirely of formica.

General Division The paper desk is located directly opposite the cashier. You'll need the case number, the term year and the names of the parties of the case file you want to retrieve. Write this information, along with your name and firm phone number on one of the small, yellow dance cards found in a basket atop the counter. A clerk will come by, take the slip, initial it, and, pirouetting his way into the file room, will return with the requested file. Files from 1978 to the present can be retrieved in this manner. Most files prior to 1978, however, are warehoused in facilities on the North Side and will have to be ordered through

the paper desk. Oh, and remember, you can leave, but the file stays.

Arbitration Rumba past the main filing desk, around the corner toward the docket desk. If you find yourself suddenly sprawled across the desk in the hall, you've come to the right place. It belongs to the Arbitration file clerk, Dan. Pick yourself up and say "hello" to Dan and give him the case name and number. He'll retrieve the file for you.

"\'\'hat is an Adsectum?"

HOW TO USE THE DOCKET BOOKS What if you need to know when the last pleading was filed in an action or whether a case has been settled? Instead of retrieving the entire file and leafing through all those pleadings, you can get a complete yet brief chronology of a case by inspecting the docket. In both General and Arbitration Divisions, you need to have the case number.

Ge neral Division Go to the Prothonotary's Desk Chart once again to determine the desk to which the action was assigned. The docket books are shelved along the wall in the second alcove past the paper/formica desk. The spine of the docket book will read something like this: 613; C-3; 1987; 9327-1359.

This translates as: docket book #613; C Desk, 3rd book for 1987; case numbers 9327-1359. In each docket book you'll also find in the front an index which lists the case names, alphabetically by plaintiff, which are found in that volume and the page on which the entry is recorded.

Arbitration Division For a reason none other than to confuse you, Arbitration utilizes a different

Juris

SHUFFLE

Scotty the Terrible

system. The Docket books are located underneath the right counter in the rear filing room. There's no time to dance with Dan this time, just pass him by and head toward the copier. On the spine of these books you'll see something like: 236; 4100 to 5999; Arbitration Docket Even Hundreds; 1992. This means: book number 236; case numbers 4100 to 5999 of even hundred numbered cases only for 1992.

There are also, of course, books for odd hundred numbered cases.

DEFENDANTS ABSECTUM If you don't have a case number, but only the name of the defendant and the year the case was filed, you will still be able to find the case number through a search of the "Defendants Absectum".

These books are particularly handy when you want to know how many times a particular defendant has been sued -say, in a medical malpractice case.

HOW TO FIND A WILL In order to find a will, you will have to go, ironically enough, to the Register of Wills office located on the first floor of the City-County Building. To find a will filed from 1990 to the present, go to the computer on the desk to your right. You may retrieve information as to all filings for an estate merely by entering the decedent's name. You may also access this information using the orphans' court case number or the decedent's social security number. Once the computer gives you the Orphans Court number, fill out a slip and give it to the desk clerk who w ill retrieve the file.

If the will was filed prior to 1990, you will have to locate the case number by using the Proceedings Index, located within the far right alcove. Any will or estate plead ing filed from 1788 to the present is listed in these volumes. Information is accessed by using the dreaded Russell Indexing system (yes, the same one used for deeds). Fortunately, there are always floormen on duty to help in case you get really lost between l,R and S. Once you've reached the correct entry, in addition to the f ile number, you w ill find a listing of all pleadings filed for that particular estate.

Again, fill out a slip and hand it to the desk clerk who w ill retrieve your file.

MOTIONS COURT In civil division, the judge hearing motions will rotate on a monthly basis. To find out who is hearing motions that month and where they' re located, look in

the P.l.) . or at the sign behind the paper desk at the Prothonotary.

However, when it comes t ime to actually schedule a motion date, remember that the judges may rotate, the seasons may change, but one th ing remains constant: the clerk of Motions Court, Mr. P.S. "Scotty" Sullivan. Scotty is somewhat of a legend among members of the bar, particularly the younger generation. You' ll quickly discover why your boss sends you in her place to do her schedul ing. A few words of advice: upon entering the courtroom, do not make noise; do not talk; and for the love of Pete, do not walk between the tables. Do, however, bring at least two cover sheets and two copies of anything that may be construed as being remotely relevant to your motion (such as an Order). And yes, do expect to be addressed as though you were something he just stepped in. Do not take this personally, it happens to the best of us.

GOOD LUCK We hate to leave w ithout covering everything, but we're certain that, with your higher education and native cunning, you ' ll be able to figure some of these things out for yourself. Besides . .. We also know that next to a 4:28pm filing there's nothing the County employees like better than a clueless law clerk.

Valerie A. Gatesman, l '92, is an associate with the f irm o f Petraglia and Muscante.

General Division The absecta (absectums?, absecti?, appendectomies?) are located in the third alcove from the paper desk, beneath the counter. The spine will tell you the time frame covered therein. Defendants are listed alphabetically, then by date of fi ling under each section.

Arbitration For actions initiated from 1988 to the present, the absectum is accessible via the computer located on the counter at the rear desk. Prior to 1988, the absectum was docketed by hand, in the same manner as utilized by the general division. The more recent of these books may be retrieved for you by the desk clerk . Earlier volumes must be retrieved from storage.

Spring • 1993

'Why, why do they need SEVEN cover sheets?!¡

d

Getting Together: The most recent advertising campaign attracting visitors to Pennsylvania exclaims "Pennsylvania - America starts here!" Many know that our country's founders wrote the Constitution in Philadelphia. Few know, however, that the nation 's first volunteer fire department, the Union Fire Department, protected Philadelphia at that time. In fact, Benjamin Franklin founded that volunteer department in the early 1700s.

Prior to the beginning of organized firefighting, homeowners provided fire control. They were required (by law) to have two leather buckets available in their homes to be used in "bucket brigades" when a fire occurred in the community.1 Thus, early in our Commonwealth's history, all citizens took an active role in firef:ghting . Today, however, firefighting is largely left to a few volunteers .

Volunteers have traditionally assumed the responsibility of responding to emergencies which affect all of us. We rely upon volunteers to save lives, fight fires, rescue cats from trees, extract occupants from wrecked vehicles and to assist during natural disasters. Today, volunteer departments are becoming increasingly aware of modern threats such as hazardous materials emergencies, industrial accidents and confined space rescues.

Unquestionably, our communities have relied upon volunteer firefighters in numerous capacities for nearly three hundred years.

Also important, but certainly less visible, are the many economic benefits which a community receives from the volunteer fire departments. A good community fire department attracts new

property owners, whether industrial, commercial or residential. It helps keep insurance costs down . Volunteer departments help keep taxes down as well. Local governments bear the ultimate burden of providing their communities with fire protection and without volunteer departments, the financial burdens which would be placed on municipalities would be tremendous. With budget crises on virtually all levels of government, it would be fiscally impossible for most communities to have career firefighters on duty 24 hours a day without heavily increasing the burdens of already frustrated taxpayers.

A recent study conducted in Delaware by State Auditor R. Thomas Wagner, )r. found that, if Delaware (populationexcluding Wilmington, which has a career department - of approximately 600,000) were to replace its volunteer fire service with career departments, it would cost taxpayers an additional $74,421,486.00 per year.2 Obviously, the cost in Pennsylvania, because of its larger size, would be that much higher.

Unfortunately, the proud volunteer tradition is dying. A survey 3 of Pennsylvania volunteer fire departments indicates that 79% of responding companies have difficulty recruiting new members. In 51% of the companies, membership dropped throughout the 1980's. An additional 37% reported no growth in membership.

Volunteer turnout is scarce between 6am and 6pm. Volunteer departments face a continuing struggle between local officials who do not respond to the requests of their volunteers, and state and federal officials who continually demand more of

volunteers by way of training and regulations, but provide less and less financial support. The public also continues to demand more service. Modern emergencies tend to be more complex than those of years ago and the threat of litigation against fire departments is at an all time high . Not only are the volunteers responsible for responding to emergencies, but they must raise funds as well. Today, it is not unusual for a fire engine to cost up to $500,000. The typical volunteer firefighter holds down another job and has family commitments . Demands on time and money are high, yet both are scarce.

One would hope that our elected officials would help volunteer fire departments attack the problems facing them today. But they tend to be more of a burden on firefighters than a help. For example, almost every year, new certification levels are required for response to hazardous materials emergencies. Certainly firefighters need to have structured training requirements - this is not the problem .

But training requires money and time.

Although regulations require increased training and certification, no monies are made available to the volunteer fire departments for these essential purposes.

The burden becomes twofold: already time-stressed volunteers must spend more time raising more money so they can spend more time reaching new training and certification requirements.

The newly proposed Pennsylvania state budget for fiscal year 1993-94 provides $1,048,000 to fund the State Fire Commissioner's Office which coordinates the fire prevention and control activities for the Commonwealth as well as serving as the focal point for all fire departments (career and volunteer) in the state. These funds are to be used to operate not only the Fire Commissioner's Office, but the State Fire Academy and Community College level training throughout the state and the administrative costs of the Volunteer Loan Assistance Program (VLAP).

There is no other specific funding for the fire service in the state budget.

Pennsylvania is fortunate to have the nation's first Volunteer Loan Assistance Program through which volunteer fire, ambulance and rescue departments can obtain loans from the state at low interest rates (2%) to help fund new equipment, facilities and apparatus. Although the original money for the loans comes from municipal bonds and interest collected on the loans, funding for administration of

Juris

A Challenge for PA Firefighters the program comes from the state budget. One of the bureaucratic problems faced by firefighters recently began in November, 1990, when the voters (by nearly 80%) approved the sale of another $25 million bond to be used for additional loans. Because of technicalities, however, the bond was not sold until june, 1992almost two years later. During this period, VLAP received a 30% increase in loan applications.• Because of the influx of additional loan applications, VLAP's administration required additional support staff. Thus, another problem.

This current issue concerns the continued state budget funding for administration of the loan program. When the program was instituted in 1976, four staff members took control of the program.

But, as the requested borrowing amounts increased, more staff time was required to process the applications. As more loans are requested, additional staff becomes necessary. A fire company applying for a loan in November, 1992 will have to wait until june, 1994 to get its money. 5 To adequately staff the program, an additional budget allotment of $200,000 to $300,000 would be needed. This is less than 1/100 of the state's proposed budget. The administration in Harrisburg, however, does not want to allocate this money and has proposed that the program become "self-supporting" and administration costs come from interest collected. On the surface, this appears to be a good idea; however, there are many problems with this "quick and easy-fix".

Section 19 of the Act of july 15, 1976 (P.L. 1036, No. 208), which implemented VLAP, provides that "The General Assembly may make appropriations ... to [VLAP] ... to carry out the purpose of the act which appropriations shall be continuing appropriations and shall not lapse." Also, section 4(3)(f) of the Act requires "All payments of interest on said loans and the principal thereof [to be] deposited ... in the Volunteer Companies Loan Fund." Thus, to implement this plan, the Act would need to be amended. There is a greater problem, however. If interest money is used to administer VLAP, the amount of funds available for loans diminishes. Already financially strapped volunteer departments would be unable to get needed money which is rightfully theirs. Further, administrative costs consistently increase and would result in a larger dip in the program's funding source. To increase the interest rate to generate more returns would

Spring • 1993

destroy the intent of the program.

This is just one of the many legislative problems faced by Pennsylvania firefighters today. The firefighters are taking action to address not only the loan program problem, but other problems faced at the state level. Early in 1991, for the first time in Pennyslvania's history, representatives from the statewide fire service organizations formed the Pennsylvania Fire Services Institute (PFSI). Modeled after the Congressional Fire Services Institute in Washington, D.C., PSFI's mission is to educate the legislature on issues facing Pennsylvania's fire and emergency services. It is not a lobbying group, nor does it endorse legislation; rather, PFSI merely provides our elected representatives with information on Pennsylvania's fire problem.

More importantly, PFSI has brought the state's firefighters together to discuss critical life safety issues. The Institute has established an agenda designed to address the fire problem on a legislative level. Rather than having the legislature tell firefighters what is best for them, the firefighters are now telling the legislature how they can help address the fire problem. Finally, firefighters from across the state are now getting together with each other and preparing a list of priorities addressing the problems in Pennsylvania.

The first statewide priorities list provides that to effectively fight fires and ultimately prevent fires, departments must have updated and safe apparatus, equipment and buildings. The Volunteer Loan Assistance Program must therefore be funded adequately. Second, the best firefighting is fire prevention. Firefighters are therefore proposing reasonable statewide building and fire prevention codes. As these codes vary from municipality to municipality, implementation of statewide codes would require all new construction to meet certain safety requirements. Third, as smoke detectors double a person's chance of survival in a fire, adopt statewide smoke detector legislation.

Fourth, to attract and retain volunteers, increase the state death benefit for survivors of volunteer emergency workers who are killed in the line of duty and add Hazardous Material team members to those who are eligible. Finally, study the feasibility and implementation of water sprinkler installation so that those who install sprinklers are not financially burdened for doing so.

Better understanding from the public and elected officials is only the first step in adequately addressing the many fire problems which affect everyone in the Commonwealth. Volunteer firefighters have not only accepted the challenge, but are taking the first steps toward a safer Commonwealth. As citizens, we must support their efforts and take an active role in implementing a successful plan which will secure the safety of all.

Paul Hornick is a second year day student. He has been a volunteer firefighter for six years.

References 1. A brief overview of firefighting early in Pennsylvania's history is found in Zem v Muldoon, 101 Pa Commw 258, 516 A2d 799 (1986).

2. Projections: The absence of volunteer fire and ambulance service in Dela· ware, State Auditor's office, R. Thomas Wagner, )r., State Auditor, September, 1992.

3. Pennsylvania Volunteer Fire Service Biography, The Pennsylvania Fireman, Vol. 55, No. 8, May 1992, p. 4.

4. Chronology of Significant Legislative Program Changes and Related lnfor· mation, The Pennsylvania Emergency Management Agency, Office of the State Fire Commissioner, Volunteer Loan Assistance Program, Dec 7, 1992.

5. /d.

m

GENERIC/DE: The old saying goes, "what's in a name?" For a major company like Xerox Corporation, a name can literally be worth billions of dollars. With sales of $18 billion in 1991, 1 Xerox continuously takes serious measures to protect its good name. One advertisement placed by Xerox asks that its name only be used as a proper adjective to describe its products: i.e., Xerox copiers, and never as a verb ("to Xerox") or a noun ("here is the Xerox of the original"). This is one tactic Xerox takes to prevent its mark from falling into misuse by the general public as a generic term for the product.

Coca-Cola Company sends its trademark examiners out to sample colas at restaurants and diners to make sure retailers selling other colas are not palming off those brands as "The Real Thing." Why such concern? Well, again, the economic value of a trademark like "Coke" is invaluable. A company losing all of its assets could rebuild again based on its well known trademark. Thus a company will do everything it can to protect its registered mark.

For once a trademark loses its significance as an identifier of specific goods claiming a particular source, it is no longer of any value to its owner. It also loses the federal protection it once had.

Many words commonly used in everyday language, such as jeep, jello and

Kleenex, are actually registered trademarks. When the general public begins to know and refer to a particular type of goods only by its trademark, the trademark becomes generic. It is at this point that the trademark usually is considered abandoned, and registration is canceled. 2 Many

. .. once a trademark loses its significance as an identifier of specific goods . .. it is no longer of any value to its owner. trademarks have met with this fate. Numerous product names used in everyday language at one time were legally protected trademarks. Marks which have become generic include aspirin, thermos, escalator, and shredded wheat.

To better understand how a trademark can fall into the depths of "genericness" and lose its registration, one should first be familiar with some fundamentals of trademark protection. just as copyrights and patents protect one's expression of ideas and inventions, respectively, from infringement by unauthorized use, trademarks protect the goodwill associated with a product and its source. 3 Any word, name, symbol, device, or combination thereof, used to identify and distinguish goods produced or sold by a single source from other makers or sellers of products is eligible for application for registration as a trademark. 4 The Lanham Act,S the basic statutory law governing federal trademark protection, requires that a mark be primarily distinctive to be eligible for trademark protection. 6 Marks that are considered arbitrary, fanciful, or suggestive, can usually be registered as long as there is no successful opposition to the mark by other parties. Descriptive marks, such as "heavy" or "smooth", could not be registered as trademarks if they merely describe a characteristic of the product, unless they have acquired a secondary meaning whereby a supplier has marketed its goods using the term so effectively that consumers immediately associate the descriptive mark with that sole supplier.? A generic term is

TRADEMARKS MISUSED AS GENERIC NAMES 1.

2.

3.

4.

5.

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Baggies Jeep Kleenex Jell-0 Kooi-Aid

6. Q-Tips 7. Scotch tape

11. Vaseline 12. Klondikes 8. Tabasco sauce 13. Styrofoam 9. Teflon 14. Fiberglass 10. Crescent wrenches 15. Saran Wrap

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The Killing of a Trademark TRADEMARKS THAT HAVE BECOME GENERIC

1. aspirin 2. escalator 3. trampoline

4. raisin bran 5. dry ice

never eligible for trademark protection since it is a nondistinctive term for a class of goods. Courts are reluctant to restri ct competition in the marketplace among those who need to use the term to describe their product by registering the mark to one supplier.

Outs ide of a trademark purposely abandoned or di scontinued by the owner with no intent to resume use, the Lanham Act specifically addresses a trademark as abandoned "when any course of conduct of the owner, including acts of omission as well as commission, causes the mark to become the generic name for the goods or services on or in connection with which it is used or otherwise to lose its significance as a mark." 8 Historically, courts have not been entirely clear in interpreting the statutory requirements for ascertaining when a mark becomes generic. In Bayer v United Drug Co., the court was concerned with the average consumer's understanding of the word "aspirin"- whether they associated the drug with Bayer or used the mark to generically describe the drug acetyl salicylic acid even though "aspirin" continued to signify Bayer to physicians and pharmacists. 9 " Shredded wheat" lost its significance as a trademark because its distinctiveness turned on a showing of the primary sig-

Spring • 1993

6.

7.

8.

9.

10.

thermos yo-yo linoleum shredded wheat mimeograph

11.

12.

13.

14.

15.

nificance of the producer and not the product in the minds of the consumers.'o The term "thermos" originally was used to identify the source of a particular brand of vacuum bottles, but became primarily significant to the public as the general description of the vacuum bottle itself."

One court applied the public perception analysis with disastrous resu lts. Applying a literal distinctiveness test based on a survey that indicated consumers were more concerned with playing the Monopoly board game than with who produced it, the court concluded that the primary significance of the game was the product, the real estate board game, and not the producer Parker Brothers. 12 Congress effectively reversed this result with the Trademark Clarification Act of 1984 which provides that the primary significance of a trademark to the relevant public rather than purchaser motivation should be the test to determine whether a mark has become generic. 13 Whatever the test, a company that has spent hundreds of thousands, perhaps even millions, of dollars on associating itself with consumers through its products will certainly continue to take the necessary precautions in order to preserve its trademarks.

high octane cellophane cornflakes kerosene cola

Glenn E. Camus is a second year evening student.

References 1. Xerox Corp ., Form 10-K, December 31 , 1991, available in WESTLAW, Dis· closure Incorporated (1993).

2. See The Lanham Act § 45, 15 USC § 1127 (1991).

3. Basic federal copyright protection is codified in 17 USCA §§ 101-810 while statutory patent protection can be found in 35 USCA §§ 1-376.

4. 15 USCA § 1127 (1991).

5. 15 USCA §§ 1051-1127 (1991).

6. 15 U5CA § 1052 (e) (1) (1991).

7. See Judge Friendly's discussion of the four categories of ma rks in Abercrombie & Fitch Co. v Hunting World, Inc., 537 F2d 4 (2d Ci r 1976).

8. 15 USCA § 1127 (1991).

9. Bayer v United Drug Co., 272 F 505 (2d Cir 1921).

10. Kellogg Co. v National Biscuit Co., 305 us 111, 118 (1938).

11. King-Seeley Thermos Co. v Aladdin Industries, Inc., 321 F2d 577 (2d Cir 1963).

12. Anti-Monopoly, Inc. v General Mills Fun Croup, Inc., 684 F2d 1316, (9th Cir 1982), cert denied, 459 US 1227 (1983).

13. Trademark Clarification Act of 1984, Pub L No 98-620, 98 Stat 3335 (1984), codified at 15 USCA § 1064(c) (1 991).

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Career Paths to Partnership-Which Way is Up? Many law students probably wonder what the path to partnership entails. Students and practictioners alike should realize that it is not carved in stone. Given the number of lawyers practicing law today, the state of the economy, and the impact of modern social views, law firms today find themselves compelled to look for new ways of doing business.

A SHORT HISTORY For decades lawyers and law firms operated in an atmosphere of quiet privilege, shielded from the rigors of competition by both popular perception and a cozy blanket of self-regulation provided by the local bar associations. Law, (with medicine and the cloth) was considered one of the noble professions.' Law firms were run as small, collegial fraternities.

Partnership, men's clubs and social castes made law the gentlemanly practice. 2 Once a lawyer made it on the track, the road to partnership was a relatively easy one. Entry was the problem. 3 The me-generation of the 70's, however, along with the steadily increasing enrollments of students in the nations' law schools in the 80's changed the criteria for the initiates, the "associates", who would make partner.• One of the first changes came in recruiting - graduating law school and passing the bar were no longer enough.

The top firms tried to distinguish themselves by recruiting only the top students from the top law schools. 5 Once recruited, these associates would be on a path or track toward "partnership" with the firm.

After a graduate was made associate, the graduate had "x" number of years to reach partner. If this goal was not reasonably achieved, the associate was "out."

Economics in the 80's, which allowed law firms to expand, had a dramatic influence on organization and partnership decisions. After this period of rapid expansion throughout the 80's, firms realized they not only had more lawyers than work, but in order to stay alive they had to be more business oriented. Mergers and acquisitions along with the continual hiring of associates set the pace.

Competition among firms increased and lateral hires were changing the rules, thanks in large part to the mobility and power of the "rainmaker" (the entrepreneuriallawyer whose ability to bring

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in clients, or take them to other firms, provides the lawyer leverage over colleagues).6 Where is the loyalty? This is not the same old gentlemanly profession it used to be.

Although firms are reluctant to admit it, the practice of law is also a practice of business. As a result, second year associates are learning marketing techniques and are expected to help recruit clients. Otherwise, firms could not keep up with the pace and expect to survive.

Part of the answer to the boom of the 80's was downsizing. Clients no longer accepted huge legal bills without explanation. Moreover, necessities and occurrences such as modern technologies (the computer, necessary for the modern firm) high priced associate salaries, the balkanization of firms into departments and the reluctance to lose highly skilled senior associates made it necessary for law firms to find new ways to avoid the "up-or-out" career paths.7 There is much more at work here, though, than economics and expansion.

The complexion of the profession and its major firms is changing as more and more women and minorities attend law school. 8 Moreover, heading into the 90's, a 70 hour work week doesn't coincide with the demand of a growing number of women and men who are seeking flexibility at their firms in order to accommodate family needs.

"UP-OR-OUT,'' OBSOLETE? The needs of both the firms and the associates helped change the recently liberalized maternity and paternity leave and part- time policies of law firms. Associates want to spend more time at home while firms don't want to loose highly skilled associates to the family or more flexible firms. In the face of discrimination and a new societal attitude, the leave and part- time policies of firms are in flux. Requests for flex-time and "family leave" have become a steady drumbeat for many D.C. firms, and undoubtedly most firms today. 9 "It's one of the all-abiding concerns of young attorneys these days, right up there with compensation." 10 Leave requests and maternity and paternity leave have been dealt with in a variety of ways and more often than not on a case by case basis. Aside from treating maternity as a disability, leave is often

tied to the length of service as well as an array of arrangements which include juggling the accumulation of vacation leave, sick leave, and personal leave."

More than just an issue of maternity or paternity leave, however, is the growing number of women who want to pursue a part-time work arrangement without stepping off the partnership track.

A two track phenomenon called the mommy-track in which a woman's path to partner is slowed or permanently eluded while she divides time between her job and raising children has come about.'2 This too has influenced the way firms are managed and has spawned many questions. Is it possible to work 3 days a week and still be on the partnership track? Does this schedule slow an associate's progress toward partner or bump the associate off the track? How do firms view a nontraditional program?

BLURRING THE LINE BETWEEN ASSOCIATE AND PARTNER Many firms are blurring the line between partner and associate. They have found that to say someone is either an associate or a partner with nothing in between isn't working as it is a poor way to allocate resources in the marketplace. 13 One way firms have attempted to accomplish erasing the line is the two-tier or multi-tier partnership. The two-tier partnership consists of equity and non-equity partners. An associate doesn't have to be "out" anymore; good attorneys who don't want the responsibility of a partnership or who are not qualified for it can be promoted to non-equity partner. While the variations on the privileges associated with each type of partnership vary from program to program, the basic idea is the same. Both equity and non-equity partners get some share of the profits, are involved in management decisions, vote and are "partners".•• The distinction with nonequity partners, aside from compensation, is that they don't get to vote on the admission of equity partners and limited other matters.

The firm Gaston & Snow is an example of a firm which implemented a threetier partnership program. Gaston & Snow's program consists of partners, equity partners, and senior partners. The senior partner status, which is voluntarily

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assumed, was only available to equity partners and was created as a safety valve for grandfathered partners (a way to keep tenured partners and to provide a sort of retirement option). Equity partners maintain voting rights on matters such as mergers, make capital contributions, and are liable for any losses. 15 Non-equity partners, as above, share in the profits and some management decisions.

These distinctions may seem superficial- simply a matter of titles and com pensation . To the contrary, it is just these kinds of distinctions today' s firms are struggling with. For example, there are political pressures at work from within the firm - the distinction between associate and partner, the animosity between associates and partners and the bad feel ings when one associate gets promoted and another doesn ' t - and there are also pressures from without as clients only want to deal with partners. Additionally, there are other issues: control , governance, and flexibility. Firms may want to create partnership opportunities for people who have different goals, comm itments, and lifestyles. The non-equity partnership option provides a partner with all the prestige of the "partner" but without the kind of commitment that equity partnership requires. 16

THE GENERAL PARTNER The California iirm of Latham & Watkins is one of the few firms to implement a general partnership program whereby only partners are hired . All associate positions are eliminated . The system is based on the idea that associates and partners can clash . They wanted to attempt to give every one a significant voice in the firmY The general partnership system divides profits among all of the firm 's members. This was done to eliminate the " eat what you kill" method that discourages the referral of work from partner to partner.18 Management decisions were made one-person/one- vote. And, each attorney joined the firm knowing that if the business goes belly up it is their loss too.

The system was successful not only because the partners understood the advantages of the system but because only experienced lawyers were hired .

Moreover, the firm realized the business realities of operation and its motivating power.

What better way to watch expenses than to have a firm full of owners who benefit directly from minimizing expenses. The Firm recognized advantages in:

Spring • 1993

"Will you have the full partnership with the Mercedes and Cellular phone . .. or the equity partner blue plate special, and find your own parking?"

One:

Holding down costs. It' s in every lawyer's interest to be efficient.

There's an unquantifiable value to everyone's recognition that when money is spent, it comes right out of the profit pool.

Two:

Ownership not only makes the partners more cost conscious, it also takes the edge off having to work overtime.

Three:

Responsibility for tasks related to the operation of the firm is easier to spread around to owners than to associates, given that owners are more knowledgeable about the firm and more interested in the wellbeing of the business as a whole. 19

The general partner program is definitely not for everyone nor every firm. The division of the profits that results from this system will not set well with many, especially when profit division today constitutes a smaller cut of the pie (even though the overall net might be increasing). It is, however, an option.

THE STAFF ATTORNEY The firm of Andrews & Kurth implemented the new position of staff attorney. (When reading the next section, it is important to note that Andrews & Kurth believes and insists that their staff attorneys "Parallel" partners and associates .

The staff attorneys are not to be perceived as below partners and associates or on a lower tier.) Based on a theory of "nobattlefield-promotion rule," staff attorneys are not considered for partnership . Started as a way to get the work that clients need done in a cost-efficient way (being

able to take on larger projects without sparing associates) this program developed into a program for working mothers.

The Andrews & Kurth program is particularly appealing to working moms because it allows for great flexibility in working schedules . It should be noted that the system has several advantages for the firm too.20 First:

The ability to compete . By having staff attorneys whose billings rates are lower than those of associates who might be doing the same thing, the firm is able to quote lower rates . Certainly it makes clients happier with the fees that are charged for big projects, which is where staff attorneys are used.

Second : The staff attorney program fills the gap recruiting leaves. It takes a minimum of two years to recruit an associate. In Houston, the city where Andrews & Kirth is located, you can get a staff attorney in four weeks. Staff attorneys help address the struggle between the particular month ' s demand in business and the growth of the firm.

Third:

It takes some of the pressure off partnership decisions. Staff attorneys, since they will never be partners, constitute a permanent leverage factor which enables the firm to make more associates partners than would otherwise be possible. And finally, of course, staff attorneys are profitable - a good deal more profitable than associates of the same experience level, at least

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early in the first three or four years. 21 While this system surely takes the attorney off the partnership track, it is a definite alternative, not to mention a successful one, which leaves the choice open and up to the individual as to what path to take.

SECOND CLASS CITIZENS There have been many changes in the management of law firms and the way firms organize lawyers, but the status and prestige that attaches to being called a "Partner" has not. There is a perception with "the track" that you have to be either "on" or "off". Even if you're "on" the track, an inflexible time schedule must be adhered to- once your time expires the chance at partnership is gone.

Celia Flesher, a senior partner with Milbank, Tweed, Hadley & McCloy, set the picture straight when she said, "I felt like a second-class citizen [in the senior attorney program] even though that was largely a self-perception." 22 Flesher reduced her hours after her first child. Although she was a senior partner and not "off" the partnership track, the senior attorney program did not work for her. She was not an "associate on the partnership track."

For Flesher it wasn't a matter of compensation. It was a matter of ego within the partnership, she still knew there was this kind of partner and that kind of partner.

Although Celia Flesher felt sidetracked by the "mommy-track," figures collected by the National Law journal don't reflect any significant sidetracking of either women or minorities. 23 However, many women report that the struggle is far from over with management jobs forming a sort of second glass ceiling. Women feel that management positions still elude them, preventing them from participating in their firm's leadership. 24 Even though women have constituted a third of law school enrollments for over a decade, "women still believe it is much more difficult to make partner, and once you do make partner the climb is not over." 2 s It should be noted that in another survey by.the National Law journal, tracking data on lawyers firms consider to be at the partner level but with non-partner titles and associate-level lawyers with nonassociate titles, it appears that white males dominate the "non-partner" ranks in a ratio similar to their dominance in the partnership ranks. 26 Finally, in a national recruitment survey, law firms agreed with the possibility of having attorneys on-staff for a limited

amount of time, often to work on a specific project or case. Others, though, disliked the concept of a temporary attorney and considered it a form of "second-class citizenship" next to lawyers hired in the more traditional partnership mode.27 Amy F. Haduch is a second year evening student.

References 1. john R. Brandt, Tough times for the Law Business, Vol16 Corporate Cleveland p 14, p15 (March 1991).

2. Ron Suskind, MA Law, Vol 3 No 5 Sec 1 Boston Business p 52, p 53 (Oct 1988).

3. td at 55.

4. /d.

5. /d.

6. /d at 58.

7. /d.

8. Brandt, Vol16 Corporate Cleveland at p 16.

9. Lj Pendlebury, Leave/Part-Time Policies Still in Flux, Legal Times p 1 (Nov 3, 1986).

10. ld at 5.

11. /d at 3.

12. Claudia McCiachlan and Rita Henley jensen, Progress Glacial for Women, Minorities, The National Law journal p 1, p 5 Uan 27, 1992).

13. Steven Brill, Reorganizing The Law Firm Hierarchy, Supplement The American lawyer p 50 (Sept 1988).

14. ld at 5(}.53; Lynn Graebner, Law Firm Hunter McCray Found Innovative Save for Friction, Vol 17 No 38 Sec 1 The Business journal-Sacramento p 16, p 16-20 (Dec 17, 1990).

15. Brill, The American Lawyer at 5(}.52.

16. ld at 52.

17. Graebmer, Vol 17 The Business journal-Sacramento.

18. /d.

19. /d at 18.

20. Brill, The American Lawyer at 55.

21. td at 56.

22. ld at 54.

23. McCiachlan and jensen, The National law journal at p 5.

24. /d at 4.

25. /d.

26. ld at 5.

27. Carolee Morrison and janet Shprintz, 1989 National Law Firm Recruitment Survey, The National Law journal p s12.

Opening the Profession A recent interview with the Honorable James R. McGregor, Criminal Division, concerning demographic changes throughout the legal profession, proved to be enlightening. The questions were designed as an inquiry into his experiences in law school, as well as an examination of the attitudes of the attorneys he sees in his courtroom on a daily basis concerning this topic, to see how the field and the perceptions of it have evolved over the years. judge McGregor said that when he attended law school at the University of Pittsburgh in the mid-1950s, there was one female in his first year class, and that she quit school after that first year. This seems truly astonishing in light of the fact that currently no less than forty to fifty percent of the classes at most law schools are made up of females. McGregor, who presently serves as Vice-chairman of a subcommittee designed to eliminate gender bias, says that the most significant change he has seen over the years is obviously the number of attorneys that the profession has had to absorb in recent years, as opposed to when he began his career, when there were far fewer lawyers and consequently many more opportunities in the

field. Naturally, included in the larger pool of would-be attorneys are more and more women and minorities. As a result of the overcrowding that has taken place, judge McGregor says that the attitudes of attorneys have begun to change, and not for the better. Due to the intense competition that most lawyers find themselves in, it has become a more "dog-eat-dog" environment. McGregor said that early in his career, lawyers could count on each other's word on a daily basis. "A lawyer's word is not always good anymore," he says.

As an example of the larger role of women in the field, McGregor said that currently about half of the public defenders are females, and across the state, one would find roughly eighty to ninety assistant district attorneys. Twenty years ago, this was unheard of, as the profession was dominated by white males and was considered more conservative.

Today the field has been forced to become more open to change.

Daniel W. Deitrick is a third year day student.

Juris

A Hitchhiker's Guide to the Law School DAY ONE He wasn't a particularly bestiallooking man. The foreboding tales of Duquesne's Professor Kingsfield's approach to legal indoctrination stared me in the face. An assembly of 102, all of whom had apparently drunk of similar lore, gawked wild-eyed, ink pens mounted as armaments before the man, the myth, the Murph ... Murphzilla.

It spoke. It had two eyes, two ears and one fully-formed human nose. Apparently, it had chosen, on this our initial encounter, to appear to us in human form.

He began his sermon, having mastered the foreign verbiage fabled to flow from the tongues of only the most distinguished jurists, and he was nothing less than enchanting.

For this creature, the Doorwarden, the Keeper of the Keys, was about to grant admittance to us "chosen few" to a sorcery privy only to initiates of a most exalted order. He was going to take us over the rainbow to a place where tiny trolls would expose our very souls to a sophisticated form of magical verbal wizardry to be utilized in our noble search for truth, justice and all kinds of stuff that would make our parents proud. His elves would empower us to do wonderful things like put bad people in jail, eliminate world

Spring • 1993

hunger, use big words the right way . . .

Then it happened. The trolls vanished. The good Professor's eyes glazed over as his hands - now thorny, razor-tipped claws - reached for the seating chart which rested ominously atop the podium. The metamorphosis had begun.

His eyes - they multiplied - they criss-crossed - they shot laser beams at us. I heard the crashing of thunder as the earth beneath me quaked. I sat oh-so still, knowing full well that if !lowered my eyes to a point where I could no longer see him, he could no longer see me. My only defense was a small mountain of outlines and canned briefs. just then, he summoned his Furies, and with all the rage of a rampant nun he squawked in a Godzillalike shriek: "Mr. Goodman. " We sang silent praises to this "Mr. Goodman", our sacrificial lamb, who could not immediately respond, preoccupied as he was with putting his eyeballs back in their sockets. Stopping ourselves just short of intoning the first verse of the Hallelujah chorus, we focused in on Mr. Goodman, who now appeared to us as an eight-year-old boy being dragged by the earlobe by Sister Mary Soap Suds to be publicly flogged for some dastardly event which had transpired during recess. There

we were, some 15 years later, only this time a different lesson had been learned ... I had the distinct feeling that Sister Mary was watching ... And cackling.

DAY SEVENTEEN I took a closer look around the classroom today. We come in all shapes and sizes. A mother of three. A math teacher.

A paramedic. A stratified group of fine personalities and high aspirations, tainted only by the occasional insurance salesman. What common fate brought us here?

One guy says the pretty girls are here to find husbands. I pondered his theory, and dismissed it, concluding that perhaps the admissions office had overlooked the portion of his application that read, "Oh, by the way, I'm a bonehead". Surely people of such depth and brilliance were beyond the small-minded ness generally ascribable to ambulance chasers, pointy-headed bureaucrats and dark green vegetables.

Boy, was I in for a surprise.

DAY THIRTY-TWO I watched as the jolly Green Giant was launched from the fourth row toward Professor Hirsch standing below. Ordinarily, I would have immediately reviewed the elements of a cause of action for battery.

But not today. This day my faith in God

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and lawyers had been restored, as my fellow classmates busily demonstrated their commitment to the betterment of mankind. We proffered green beans, tuna fish and Spaghettios in the name of goodwill, in the name of the homeless- in the

11

~15 Is

VCAJfl..

L.IF'£

E.SiATE, OfAICUE 8Jb.fJoJ~

,,

works were reproduced in Gothic script print by the Supreme Court Reporter.

We quickly grew accustomed to the fact that His word was the Word, as He distinguished for us the "answer to be given to the Board of Law Examiners" from the "answers suitable when answerable before the Pennsylvania Supreme Court" from the "right answer" -this last being the only answer John E. Murray would acknowledge. One of the great orators of our time (what did we know? The extent of our public speaking careers consisted mostly of shouting through Burger King drive-thru speakers ...), His very punctuation held us enthralled, accented as it was with the Ring Tap, the Cough and His classic, "Oh, yeah."

CHRISTMAS

case our names were called. Today, students of the law were offered a reprieve from the daily Socratic Romper Room in exchange for a can of food for the needy.

If the prof called on you, and you gave him a can, he had to go bother somebody else.

We were often called upon for donations of food, clothing and cash. Maybe we weren't such a horrible breed after all. Or maybe after that last trip to the Placement Office, we have something of a recipient'seye view of such kindness .

MURRAY While I don't want to start any blasphemous rumors ... What started out as just another day-in-the-life of the other average joe's of the world, was, alas, the alpha and the omega for first year students of the law. This humblest of congregations filed into our usual situs of worship, taking our places within the pews, behind our respective kneelers as we gazed anticipatorily at the altar below. Enter El Supremo.

Oh, but He was Santa Claus, the Easter Bunny and the younger, healthierlooking Elvis all in one. He glided angelically into the room, hovering 2-3 inches above the floor, cherubim and seraphim lauding him, singing in those really high-pitched, annoying voices they have. Only we true believers, the Faithful , could see the wreath of gold which encircled His head. He commanded respect through manifestations of elegance and wisdom, and by the way citations to His

"Christmas. The greatest of all Christian holidays ... "This was no evangelist preaching. This was a third year day student expressing his dismay over the fact that, while the rest of the free world would be basking in the cheer of the holiday season, Duquesne University law students would be knee-deep in vested fertile octogenarians subject to complete loss of consortium. Where was the fair play, the "not insubstantial" justice in that? I recall one student in particular, who, in times of great stress, donned the "unibrow" look - where the weight of the world presses so heavily that the eyebrows mesh

together and meet in the middle of the forehead. Male law students seemed to have lost, on average, 7-13 pounds over the course of these past weeks, said pounds simultaneously being discovered on the hips of female students. While I later rationalized that this anxiety stemmed from an irrational fear of the unknown, this feeling that the sun would not rise the following morning if I did not memorize, analyze, conceptualize - eat burgers and fries - 'til I dropped, would not extinguish itself until I had taken my first final.

I scowled at my blue book. It scowled back and snickered, "Boy, it sure stinks to be you!" I waited as the tests were distributed througout each row, 9 pens in hand -just in case the other 8 grew wings, took a dislike for the climate and flew south. For five days, I hadn't uttered a syllable for fear that if I opened my mouth the elements of false imprisonment might fall out. Fortunately, I paused, taking the time to place things in perspective.

Right now, people's sons and daughters were being shipped off to a land far and away in preparation for a battle of much more serious consequences . .. Right now, not so far from where I was seated, there was a young girl holding two babies, another one on the way, staring into an empty cupboard, no Jolly Green Giant staring back at her . .. Right now, a family was gathered around a tiny child's

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Juris

limp body in the Mercy Hospital emergency room, wondering . . . I picked up pen number 6, hoping it to be a lucky pen, and I began writing .

DAY ONE, SECOND SEMESTER So where's the new Torts prof? A man fiddled with the electric chalkboards while we waited. He looked like the repairman type - clodhopper shoes, repairman's butt - maybe a plumber doing a little electrical work on the side. He sure looked like he could use the extra cash.

The poor guy squinted a lot as he moved slowly about, glancing every once in a while at the ceiling. Probably checking for leaks. I eyed his tube socks from the third row, noting the 4-inch gap between the bottom of his pant legs and the top of his work shoes.

It looked as though he wanted to talk to us. The class quieted itself and gave its attention to the plumber and his tube socks. He was cordial enough to introduce himself. His name was Mike Streib.

Hey, the plumber wanted to lecture.

He wanted to tell us what he knew about the several theories of products liability.

He even started calling on people! We figured that maybe the University believed that someone with hands-on experience in the area of manufacturer's defects would prove a useful educator. Besides, his blunt, straightforward insults were a welcome change from the law professors' more sophisticated, veiled approach which vaguely made us feel as though we had just been spanked. As I listened, and realized the wealth of knowledge and talent this plumber possessed, it occurred to me that perhaps this man ' s place was not beneath someone's kitchen sink. Oh! That Mike Streib . . . Professor Mike Streib.

SECOND YEAR If the law were that which might be practiced to music, Dean Sciullo would prove the consummate conductor.

From the outset of one of Dean Sciullo's lectures, it is clear that the law and the teaching thereof should be approached with all the passion and devotion deserving a work of art.

Upon a proper introduction, the Dean would raise his baton, directing our attention to the podium as he led us into a simple four-four beat through the Rule Against Perpetuities. What seemed to be a frantic flailing of arms was really his way of telling us to decrescendo into a waltz beat. His repeated command, "At ease!", was a shorthand way of telling the brass section that they are drowning out the

Spring • 1993

woodwinds . He then generally calls upon a student to perform a solo spot, by directing him w ith the peculiar contortions we fondly refer to as the "Curly shuffle". No one really minds, because he only calls on one student each year. Of course, he calls on that student every day . ..

As I observed him this day, I was impressed not only by his pliancy, but by the sincerity with which he spoke. He didn't project himself as the 1-already-know-thisstuff-so-what're-you-looking-at-type of lecturer. He viewed himself as a teacher, the irony of which only a law student could understand. If a student was unprepared, he was greeted by a sigh of concern rather than the usual pompous sneer. And if a student had a question, this man's door was always open. Yeah, he was a regular guy.

THIRD YEAR At this juncture we've been forced to establish a phone-chain to ensure that at the very least our bodies are present during roll call. Oh, how things have changed in just two years. Professor Streib has traded in his Levi's for pants that reach all the way to the floor. A hundred years have lapsed since that first cup of Bev-0Matic coffee. When we are now called upon to tell the class what we know about such terms as "Lex Fori", we are more apt to say such things as, "I'm not sure, but I think he may have transferred ... "The phrase "I'm not prepared" has become an integral part of our vocabulary, as a prof who calls upon us will be lucky to get a page number, much less a case brief. Our professors fear that what was once the creme de Ia creme has become an illiterate collection of buffoons ... and that's mild compared to what we think of them.

I look back on my three-year term and try to trace my change in attitude. My thoughts drift to Civ Pro I and Professor Taylor yammering something about wallpaper .. . no .. . wrapping paper ... No, it was big law firms papering little law firms to death. What I once viewed as a misplaced environmentalist plea was now a cry for honor among thieves. I don't know much about the "thieves" part, but I can identify with the concept of honor.

What was once a blind reverence for that which was deemed "fair and honorable" has, over the course of the past three years, developed into a purposeful respect for the how's and why's of equity and justice. Answers like, "because it's just not right" have been replaced by, "because we need to balance efficiency and purpose with the rights and duties of those whose interests are at issue." But

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you know, even amidst a shaky job market, the lawyer jokes and the cynical jeering at suggestions that this profession is anything more than a business venture, I've still managed to retain a childlike awe for what has become for me a sacred institution . With this in mind, I ponder my future.

If I could build the perfect lawyer, she would of course have as her base an exhaustive understanding of the law and our judicial system. However, she would also require the tenacity and esprit of Plumber Streib coupled with the sincerity, compassion and respect of Dean Sciullo. She would, of course, be armed with the vision, wisdom and style of Dr. john Murray, combined with the patience, consistency and due diligence of Professors Barker, Fisfis and McClendon. The humility and concern of Professor Taylor would be complemented by the verve of Professor Sekula. And finally, she would possess the practicality and realism of Professors Astorino and Gray tempered only by the graceful fortitude and integrity of Professor Lally-Green.

If, in our futures, we salvage nothing else from our three/four year tour of the law, I think the preservation of these attributes should prove most inexpendable. Whatever our destinations, a medium sized law firm, Congress or even the Burger King Drive-thru, we will always remember our experiences together, as all of us have left behind and with one another a tiny piece of our hearts and of our souls. Which reminds me of something my dad always used to say, "Don't ever forget where you came from. "

Susan Malie is a third year day student.

SPIRITUS EST I have had the pleasure of knowing John Sciullo for more than three decades. John was my colleague at law school in the early sixties. Though we had not worked together for many years, upon my return to Duquesne as president, I found that John had not changed at all. Just as he was more that thirty years ago, John is a dedicated teacher and administrator who unselfishly provides all of his talents and energies to assist others and carry their burdens. If anyone has a problem, John is eager to solve that problem . If anyone is in need, John is eager to help that person . John Sciullo combines the best in lawyering with the Christian spirit.

Though John is completing hjs many years as Dean of this fine Law School, we are particularly pleased that he will remain as an active faculty member of the Law School Faculty. On behalf of the entire Duquesne University Community, I express our deepest appreciation to John for his splendid contribution to the School of Law and the University. John Sciullo manifests what is the very best at Duquesne University where "It is the Spirit Who gives life."

John E. Murray, Jr President, Duquesne University

A thundering round of applause and a standing ovation from the Class of '82 greeted Professor John Sciullo when it was announced that he had been chosen to be Dean of the Law School. They welcomed an era of leadership under Dean Sciullo.

That era now comes to an end.

Lawyer, Professor

and Dean john Sciullo has been living in and contributing to the City of Pittsburgh all of his life. A native of the area, he attended the University of Pittsburgh where he received a Bachelor of Arts degree in 1953.

He also attended Pitt's law school, and received his )uris Doctorate in 1956.

Following two years in the United States Army Far East Command, john Sciullo returned to the University of Pittsburgh Law School as a Research Associate, assisting in the preparation of the new Pennsylvania Eminent Domain Code. In

1960 he went to work with Judges Frederick G. Weir and Samuel A. Weiss of the Court of Common Pleas of Allegheny County. john Sciullo then served as a Senior Planner with the Pittsburgh Planning Commission from 1962 to 1964.

Throughout this period in Pittsburgh, john Sciullo was also involved in the general practice of law with Attorney Lloyd H. Fuge in Clairton, PA. It was in 1964 that the Duquesne University School of Law welcomed john Sciullo as an Assistant Professor. Upon completion of his Associate Professorship, he was granted full professorship status.

He has taught classes at Duquesne in the areas of Property, Land Use Planning, Family Law, Estates and Trusts, Fiduciary Administration and Future Interests. He has also taught law students at the George Washington University Law School and at the Hofstra University School of Law. And, of course, there has been more than teaching to john Sciullo's career at the Duquesne University School of Law. He served as Associate Dean from 1969 to

1977. Also, he was the advisor for the Duquesne Law Review in 1966 and 1967, and for juris from 1967 to 1982.

As an attorney, Dean Sciullo has impressive credentials. He has been admitted to practice before the Supreme Court of the United States, the Supreme Court of Pennsylvania, the Superior Court of Pennsylvania and various local courts in Allegheny County. He is a member of the American Bar Association, the Pennsylvania Bar Association and the Allegheny County Bar Association, where he has served on the Lawyers' Employment Subcommittee and the Nominating Committee and as a trustee of the Louis Little Scholarship Fund. He served as Vice Chairman of the Client Security Fund of the Pennsylvania Supreme Court from 1982 to 1988. He is a member of the American Law Institute, Phi Alpha Delta Law Fraternity and the American Bar Association Advisory Committee on the Uniform Probate Code. During the summers of 1966, 1967 and 1968 he served as Law Student Supervisor for Neighborhood Legal Services.

In the community, Dean Sciullo has been involved in a wide range of activities and associations. From the Italian Sons and Daughters of America to the Sierra Club of Pittsburgh to the Church Committee for Immaculate Conception Church to the School Board for the Diocese of Pittsburgh, Dean Sciullo has been making his mark. Other memberships include the Ministerial Assessment Board, the Lawyer Assessment Committee, seven years with the Pittsburgh Planning Commission and five years on the Chief justice's Committee on Comprehensive Education for the Supreme Court of Pennsylvania. Presently, Dean Sciullo still works with the Advisory Committee on Decedents' Estates Laws of the joint State Governments Commission and the Retail Theft Diversion Program Advisory Board; he also serves as a director of The Laurel Funds, Inc. and as a board member of the Urban Redevelopment Authority of Pittsburgh.

And if that isn 't enough, Dean Sciullo also had time to write and publish Cases and Materials on Land Use Planning.

Other credits include an appearance as a guest on The Teachings of Christ with Diocese of Pittsburgh Bishop Donald Wuerl.

Juris

QUI VIVIFICAT Reflections Looking back, each member of the Law School community- student, staff or faculty- has personal memories of Dean Sciullo. Several of these people were kind enough to share their memories, stories and thoughts on the leadership and friendship provided by the Dean over the years.

Professor Frank Y. Liu, head of the Duquesne University School of Law Library, fondly reflected upon his association with Dean Sciullo. "Dean Sciullo has been very important to me and to my position here at the Law School," noted Professor Liu . "It was his personal wish that I remain here with the Law Library, and over the years we have worked very well together." At the time Dean Sciullo stepped into the "top job", Professor Liu was the Director of the Law Library. With the support of the faculty, especially Dean Sciullo, he moved from Director to Associate Professor to Professor. "I know the Dean 's support was very important to making this happen, " said Professor Liu. And it has been with the Dean's continuing support that Professor Liu and his staff have worked to improve the Law Library to make it the facility which serves students, faculty and members of the legal community today.

Dean Sciullo's encouragement was also instrumental in bringing about the exchange program with China. Given that this was happening soon after the unrest and disturbances in that country, it was important that Dean Sciullo wanted to go forward with the program. Professor Liu commented, " Without him, I don't think we'd have that program today."

Colleagues on the professional level, Professor Liu says that he and Dean Sciullo have become good friends. "We share a belief in the United States as a democratic society," said Professor Liu. He noted that Dean Sciullo holds the view that in this nation of immigrants, anyone who comes here can succeed. This belief has been experienced first-hand by both men, as Dean Sciullo's father and Professor Liu himself are immigrants. As a trib-

Spring • 1993

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ute to this vision, Dean Sciullo gave a reception for Professor Liu when he became a citizen in 1982, and presented him a copy of the American History Almanac.

After all of this time together, Professor Liu wishes his friend well in his "retirement" from the position as Dean.

When asked about Dean Sciullo, Professor Mark W. Yochum referred to him as "the best boss I ever had." He feels that Dean Sciullo has been great for the institution . He has always enjoyed talking with the Dean about the law, and remarked on two subjects upon which the Dean has vocal opinions - spendthrift trusts and forced heirship for children. Professor

Yochum remembers one thi'ng he has often heard Dean Sciullo say: "lawyers were writing constitutions while doctors were still bleeding people." He also noted that the Dean " knows a good bottle of Pinot Grigo."

Professor Ronald Ricci points out that Dean Sciullo has been personally responsible for shaping the faculty here, and especially for bringing several former Duquesne Law students on board. Professor Ricci said that there are about a half dozen faculty members, himself included, who were all students who did well here.

From that time, Dean Sciullo took an interest in what they were doing, followed

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their activities and contacted them with t~e ultimate goal of getting them into a po-

Sition on the faculty. Noting how difficult f~culty recruitment is when hiring deci-

Sions are made blindly, Professor Ricci has s~en Dean Sciullo recruit many people w1th whom he had experience . "If he ~new you, if he felt you might do a good JOb, he recruited you." The Dean's recruitment efforts involved long-range plans, and through these plans there are today more women and minorities on the faculty.

Professor Ricci also noted that when he was a student here, Dean Sciullo was considered the best teacher on the faculty.

This sentiment was echoed by Professor Maureen Lally-Green, who said that Dean Sciullo was " truly wonderful" as an instructor.

Professor Bruce Ledewitz, when asked for his comments in tribute to Dean Sciullo, offered the following testimony to the effect that the Dean has had upon his te~ching : " My most vivid memory of john Sc1ullo occurred in his office in Rockwell Hall in the Spring of 1981 . We started talking in his office and several hours later he gave me a ride home. (He lived around the corner from my house in Bloomfield.) 1 ~ad been teaching only six months by that t1me and I was basically asking john to tell me anything he could think of that would help me. " During this conversation, John made two observations that have ever since affected the content of my teaching.

He told me that every class should tell a story and that students should be reminded of how the theme of this class had developed out of what came before and would fit into the material that would be presented later. I took this to heart and ever since that day I have tried to devote each class to a particular idea.

"The other matter john wanted to talk to me about was practice. He told me that while research and writing were fine, my teaching would be enriched far more by continuing contact with legal practice.

He urged me to call Lester Nauhaus at the Public Defender's Office and to volunteer to assist his office in the defense of particularly difficult cases . I did so the very next day, ultimately leading to the establishment of the Allegheny County Death Penalty Project, which still operates at the Law School. I have always felt that John's insight about practice has greatly benefitted my teaching.

"This was not the last time john changed the course of my academic career . A few years later, when he was Dean, John decided that Duquesne Law School should develo p a specialty in State Constitutional Law - a subject which at the time was still fairly undeveloped nationally- and that I should become an expert in this field . So he sent me to a conference in Virginia that later proved to be a watershed event in the field and then started offering two sections a year in a course it was safe to say no student had ever thought of, let alone desired to take.

For that matter, I had never thought of it.

In hindsight, this decision was prescient路 since that time the field has come int~ prominence and Pennsylvania courts look increasingly to State Constitutional Law. But who expected that? " On the way home that day in 1981, John told me two th ings about academic ~ife i~ general that I have always since kept m mmd. He said tenure was absolutely necessary because University Administrators were worse than corporate directors in the way they treated workers. He also told me that every day when he woke up he looked forward to going into the classroom to teach . john told me, 'That's how you know you're in the right job.' We all know that john has been, and will continue to be, in the right job. " Professor Kenneth Hirsch referred to Dean Sciullo as "an authentic gentleman", and said that Dean Sciullo is as honest and as honorable as anyone he has ever met.

He told us that, "Dean Sciullo has a profound love for the traditions of legal education and for the Duquesne University School of Law as an institution. As Dean,

he has exercised gentle leadership, seeking always to further the interests of the Law School. " Professor Hirsch considers it a privilege to have served under his leadership.

Professor Cornelius F. Murphy, Jr., provided the following reflections on Dean Sciullo: "During his tenure as Dean, John Sciullo administered the Law School with wisdom and responsibility. One always knew that the school was in good hands. He also made every effort to maintain a harmony among the diverse faculty ~embers. I found him to be very supportive of my research and writing. I remember with great fondness the receptions which he gave in my honor upon the publication of the books which 1 had written during his service as Dean. During all this period, John has shown himself to be a true Christian gentleman . I wish him every cont inued happ iness."

A recent addition to the Duquesne University School of Law faculty, Professor Martha Jordan, said she will always remember how welcome Dean Sciullo made her feel. "He even went so far as to call me at Thanksgiving to make sure 1 had somewhere to spend the holiday. If 1 didn't, he was going to ask me to his house. That act of kindness I will never forget," she said .

The warm feelings toward Dean Sciullo shared by faculty members are echoed by others who have worked with him over the years. Registrar Molly Sacks feels she and the Dean have " grown up together at the Law School. " They began working together when the Law School operated out of Rockwell Hall. She has fond memories of her days working with the Dean, and she feels he has done much for the Law School. Looking back , she notes how pleasant Dean Sciullo has always been, always making a point to stop by to say, "H i, ladies." She says that he can talk about anything, easily moving from one subject to another, and that he is a great storyteller- especially when talking about his "war escapades ".

Director of Admissions Maureen Stokan has enjoyed working for Dean Sciullo and , while sad that he is stepping down, she's glad that he'll still be around.

She remembers how Dean Sciullo shattered her preconceived notions about " stuffy" law school professors. Her first meeting with the Dean began rather formally, but ended rather differently, when a group of faculty members came into the Dean 's office. They simply barged right in and started arguing. Loudly. It was then that Maureen learned that law professors like heated debates, but somehow

Juris

manage not to get mad at each other.

A demonstration of another side of Dean Sciullo was seen during the Christmas Party of 1984. As a big surprise for the party, faculty sec retary Helen Calhoun ordered some entertainment from Eastern Onion-a young lady dressed as a Christmas tree, in a green net dress, decorated with Ch ristmas bulbs and ornaments, arrived to lead them in some Christmas carols. "The Dean was great about it, and it made for a great party, too." she said. leean Greenwald, Assistant to the Dean, recalled him "being a really good sport about it. This young lady went up to him and did her little routine, and th e Dean danced with her."

Dean Sciullo has also been heard singing "I Get A Kick Out Of You" when returning to the office from lunch, according to Edna Maravich, a clerk in the law School's Front Office. She also expressed a hope that the new Dean has a sweet tooth, as the Front Office staff is accustomed to the samples of his daughter's homemade cookies that Dean Sciullo brings in for them . They'll also miss the soft pretzels that he occasionally brings to the office.

Bernadette Koter, Director of Career Services, appreciated the fact that Dean Sciullo's door was always open. Whenever it w as necessary, she has always been able to see him. This opinion was seconded by the secretary for Career Services, Marianne Buerkle, who remarked that Dean Sciullo "created a family atmosphere at the Law

Spring • 1993

School. He was an easy, nice person to work for." That's because the Dean is so aware of the " people side" of things, added leann Greenwald. " Dean Sciullo was never too busy to spend some time with any of the students, any of the faculty."

Having worked with Dean Sciullo during all eleven years that he served as Dean, Student Organizations Coordinator Jan Daschbach offered these reflections: " Through those years we have developed an understa nding of how the relationship between the Dean's office and the Student Organizations' office works. Here is how it goes. Whenever I walk into the Dean ' s office, Dean Sciullo immediately and involuntarily gets a pinched and pained look and says, ' How much money are you tal king about now and for which organizations?' Whenever the Dean walks into the Student Organizations office, I know that I'm going to hear about a problem. And that is probably the thing that I have appreciated the most about Dean Sciullo's management style.

"Dean Sciullo has an 'if it ain't broke, don't fix it' approach to managing people. This style is one that treats administrators like grownups who are capable of making decisions and keeping their programs up and running without constant monitoring from the Dean's office. In other words, I am able to enjoy doing my job without anyone looking over my shoulder or constantly checking and asking for updates on what I'm doing. After all our years of working together, Dean

Sciullo knows that I know what I' m doing and he lets me do it. And I know that, in spite of all those moans as he reaches for a pen to sign my latest request for more money for another program, he will authorize any reasonable and legitimate expenditure. We have had a working relationsh ip based on reasonableness and trust. I will miss that very much. "

The End of An Era Over and over again, the people who worked with Dean john). Sciullo during the years that he has led the Duquesne School of Law told us how lucky the school has been to have had the benefits of his contributions. As he steps down, he can take a justifiable pride in his accomplishments of the past eleven years.

Elaine Marie Tomko is a th ird year day student.

Thanks to everyone for helping out.

"Congratulations . .. On a Job Well Done" It has been said that "[llhe tone and character of an institution are largely fashioned by its leaders. Its capacity to attract .. . talent and to inspire genuine effort are by-products of a kind of intangible quality that is not so much understood as sensed." 1 After reflecting upon the tenure of john j . Sciullo as dean of the law school during the past eleven years, it is clear that individuals do leave their imprint on institutions. As John steps down from the deanship of the law school, his mark will be lasting.

It may be remembered that when john Sciullo was appointed to the deanship during the summer of 1982, an atmosphere of uncertainty existed among the faculty. As dean, John immediately set a tone of openness, fairness and understanding which, during his first term, transformed the attitude of the faculty to one of unity, trust and regard for each other. Those who remember that period in the history of the law school will agree that only a person of unique leadership qualities could have directed such a remarkable change in faculty attitude. Certainly, this belief was manifested by the faculty when it unanimously recommended the reappointment of John for his second and third terms as dean. In fact, common knowledge has it that john Sciullo would have received unanimous faculty approval had he decided to seek reappointment for a fourth term.

Because of John's dedication and hard work, the school has secured its current prestigious position. The outstanding educational experience which the law school provides is no longer a well-kept secret among its graduates and friends.

The law school is now considered among the "best" Catholic law schools in our country. Applications for admission have more than doubled during John's tenure, to an annual level of approximately two thousand . Admission requirements are at the highest levels ever and, more importantly, are compet itive with the top regional law schools in America.

Alumni relations are better today than at anytime during my 31 -year association with the law school. This, I am certain, is due to the openness and concern which John has had for students, not only during his tenure as dean, but throughout his 29 years as a member of the faculty.

I believe this was why his initial appointment as dean was so enthusiastically supported by the Alumni, and why so many graduates have expressed disappointment in his decision not to seek a fourth term.

It has been said that "[N]o bubble is so iridescent or floats longer than that blown by the successful teacher." 2 John's impact on alumni relations will only become greater as his former students advance in their professional careers and reflect back on him as a teacher who was "successful"

No bubble is so iridescent or floats longer than that

I too wished for john to seek a fourth term . His decision not to do so has left me with mixed feelings. One part of me says, "I'm disappointed because the course of the law school has been straight with you at the helm." The other part of me says, "It will be great to have you back in the ranks with us!" Fortunately, my ambivalence is eased by the fact that my dear friend shall be, in any case, a member of the law school family for many years to come.

Congratulations, john, on a job well done!

Raymond F. Sekula is Professor of Law at The Law School and was a student of Dean John j. Sciullo during academic year 1964-1965. Dean Sciullo and Professor Sekula have been colleagues since 1968.

blown by a successful teacher.

References 1. Dillard, A Tribute to Phillip C. jessup and Some Comments on International Adjudication , 62 Colum L Rev 1138, 1140 (1962).

2. H. Cushing, The Life of Sir William Osier 981 , (1940).

in not only stimulating curiosity, developing creativity and improving reasoning skills, but in instilling in them the importance of adhering to the ethical standards of the profession.

Juris

Student Perspectives When I was first asked to share my thoughts on what it meant to have john Sciullo step down as Dean of our Law School, I was struck by the sudden reality that this event was actually going to take place. There are just some things one comes to rely upon and take for granted.

So what does it mean to have my Dean step down?

One law school institution which was created by Dean Sciullo and for which I will always be forever grateful is juris magazine. For 26 years, juris has provided a forum for Duquesne law students to address the legal topics of the day.

Whether in its capacity as a public relations vehicle connecting the extended law school community or serving as a medium for development of student writing skills or providing a forum for public discourse on issues which affect the law, juris has become an institution at the law school. It was always important to Dean Sciullo that the magazine function as autonomously as possible. While always supportive, the Dean was never quick to interfere with the students' running of the journal. We were permitted to adhere to our convictions and, on occasion, learn from our mistakes. Perhaps of all the legacies which Dean Sciullo will leave law school generations to come, juris stands out and flourishes as a result of the insight of its creator, Dean Sciullo, and is a fitting tribute to his personal and professional integrity.

wanted to assure me that he would not interfere in the management of juris in any way. I was beginning a professional relationship with a man who let me know on more than one occasion that he had a soft spot in his heart for juris and the students who dedicate so much time to its success.

My shift at the helm of juris coincided with the publishing of the twenty-fifth volume of the magazine. We began our recognition of this milestone with an interview with Dean Sciullo, who had served as faculty advisor to Volume One of juris in the fall of 1967. During the interview, I realized that he actually remembered the people whose names were on the masthead of the first issue. He related many stories about the hard work that had been necessary for the first issue to become a reality. I suddenly had a new respect for the person who sat across from me.

That respect grew as the semesters passed. I found that a trip to the Dean's office was usually a pleasant, humorous and enlightening experience. Autonomy was the key, he said. He liked juris because it was a student publication that was actually run by students.

I'm grateful to Dean Sciullo for the guidance he provided to me during what turned out to be a very fulfilling law school career. I believe that one of the greatest benefits of being involved with juris was the opportunity to get to know him.

Lisa Martino, L'92, was Editor-inChief of juris in 1991-92.

Stephen W. Zoffer, L'91, was Editorin-Chief of juris in 1990-91.

When I came to law school in September of 1989, I hoped to complete my legal education without getting to know the Dean of the law school. I would have considered my three years at Duquesne a success if I had never found myself sitting across the desk from Dean john j.

Sciullo. Such a meeting could mean only one thing- I should have been a dentist.

But the spring of 1991 brought a change of heart as I agreed to take on the responsibilities associated with the position of Editor-in-Chief of juris. Before long, Dean Sciullo beckoned me to his office.

I assumed something was wrong. But something was very right. Dean Sciullo

Spring • 1993

As president of the Student Bar Association, I met with Dean Sciullo for the first time at the beginning of September, 1992. Of course, the purpose of this meeting was to beg for money for the SBA budget.

It took little time for me to realize that the Dean is not one to waste words, particularly when money is at issue. After a cursory review of the proposed budget, the Dean approved the proposal and added, "Now, Parker, everything looks fine, even the fact that you want to spend $10,000.00 on the Barrister's Ball; however, if you find that an emergency situation arises or another program develops for which you need more money, just ask."

As I left Dean Sciullo's office, I felt proud of the SBA's first big accomplishment, and

curiously excited about this newly formed alliance with Dean Sciullo.

Over the past year, I have come to know and respect Dean Sciullo, not just because he controls the checkbook, but because he is a generous man who is truly concerned about the Law School.

Since our first meeting, I have had the opportunity to speak with Dean Sciullo on several occasions. At times, we have seen things differently. However, he has always remained open-minded and receptive to new ideas. Our newly adopted no smoking policy is a very clear example of Dean Sciullo's willingness to change against a rather vocal opposition.

The Dean of a Law School must be an educator, scholar, administrator, advocate and therapist, all wrapped up in one.

In the persona of john Sciullo, Duquesne has just that. Thank you, Dean Sciullo, for three great years.

Brian Parker is currently President of the SBA.

My personal contacts with Dean Sciullo have been limited to what I've experienced as Editor of juris (and to that time he called on me in Es and Zs, but I hope he's forgotten about that by now...)

I respect the Dean, and like him, for something he's never done. Since I've been Editor, Dean Sciullo has not set foot in the juris office. He has offered no guidance on what should and shouldn't be published, has offered no "suggestions". If orders came from On High that certain things were taboo, you can bet your malpractice insurance that we'd spend long nights thinking up ways to get around them. But because we set our own limits, we appreciate the significance of what we're doing. Dean Sciullo has been involved with juris since the beginning. He doesn't merely respect our independence.

He helped invent it. juris owes a lot to the Dean. If we've ever failed to meet expectations, the failing has not been due to a lack of support. juris is first-rate largely because john Sciullo has dedicated the resources required to make it first-rate. I'm glad I held this job when he was dean.

CJ Rapp is currently Editor-in-Chief of juris.

SOME PROPERTY LAW THEY DIDN'T TEACH YOU IN LAW SCHOOL Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 1 property owners are liable for cleaning up waste which is contaminating their land even if they were not responsible for the contamination. 2 CERCLA does provide a defense for property owners called the " innocent purchaser defense." In order to avoid liability, property owners will have to sue the parties originally responsible for the pollution for contribution. However, CERCI.A imposes a burden at the time of purchase, for purchasers to purchase with "all appropriate inquiry into the previous ownership and uses of the property". 3 This burden places considerable uncertainty on the outcome of litigation. Moreover, the "all appropriate" inquiry required by CERCI.A may be read as the attorney's duty in properly executing \1 land transaction.

The uncertainty in purchasing property is not limited to present purchasers, though, as Congress has made CERClA liability retroactive.• It makes no difference when the property was contaminated. landowners may be held responsible even if the property was contaminated long before the current owner or operator acquired the property, or long before CERClA was enacted. The exposure to liability under CERClA can extend for many years into the future, long after most people would ordinarily expect that their involvement with a particular property was ancient history.

THE INNOCENT LANDOWNER DEFENSE

quiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. The courts shall take into account any specialized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonable ascertainable information about the property, the obviousness of the presence or likely presence of con tamination at the property, and the ability to detect such contamination by appropriate inspection .6 Under CERCLA, a sufficient environmental assessment must be conducted.

Without an assessment, it is easy for the government to take the position that a sufficient assessment would have revealed the condition.

ENVIRONMENTAL ASSESSMENTS Under the innocent landowner defense, CERCLA establishes a due diligence requirement. No landowner will be exempt from liability except under those limited circumstances where due diligence in the form of an environmental assessment has been properly conducted.

Other than eliminating risk by not owning or operating any real estate or business, the means to avoid liability is proper environmental due diligence through inquiry and assessment which can effectively reduce risk. Effective environmental due

diligence can also help the investor and lender avoid acquiring interests in property with impaired value.

The question of establishing which property and transaction types should require an environmental assessment and determining the extent of that assessment is probably the main issue of environmental due diligence. While all types of property can be contaminated, the following sets forth a general hierarchy of environmental risk related to the property classification, with the degree of diligence required , in descending order: 7 1. Industrial Property 2. Commercial Property 3. Agricultural Property 4. Undeveloped Property 5. Multi-Family Residential Property 6. Single Family Residential Property What must be addressed is not the performance of an assessment but instead, the definition of the extent of the assessment is necessary, based upon the nature of the subject property. There are two common elements always applicable to any of these inquiries: 1. The property should be characterized by both past and present use which can be ascertained from title records and other historical data.

2. Government environmental records should be reviewed to isolate neighboring risks of contamination and potential for value impairment. 8

When a party attempts to use the innocent land owner defense, however, they will find that they may not base a defense completely on grounds of not knowing about contamination or not causing it. In contracts for the sale of land, buyers who seek to avoid liabil ity by requesting indemnification and sellers who seek to exculpate themselves by attaching "as is" cannot rely upon such contractual provisions .5 The duty to inquire under CERClA may succeed these attempts.

In order to use the innocent landowner defense, purchasers have to show that they had no knowledge of nor any reason to know of the condition. CERClA provides that a defendant: must have undertaken, at the time of acquisition, all appropriate in-

Construction of the Pittsburgh Technology Institute was delayed by concerns over toxins left in the land by a steel mill that previously occupied the site.

Juris

Determining Industry Standards A major portion of the determination as to whether the purchaser qualifies for the innocent landowner defense will turn on whether an assessment was at least as thorough as that required and commonly used in practice at the time of acquisition. A court must decide whether the purchaser made "all appropriate inquiry." Definitions of what is appropriate may be determined by prevalent standards.

One important set of standards has been proposed by the American Society for Testing and Material (ASTM). The ASTM has served as a forum for the development of a national standard for real estate site assessments . The current version, which has passed an initial vote, includes a two part process. First, the ASTM "Transaction Screen," which consists of a brief owner/operator questionnaire, site checklist and government records check, is performed to allow identification of " red flags " that indicate potential presence of environmental hazards. The second part consists of a standard for the full Phase I assessment .

Phase I assessment was established when Fannie Mae took the lead in establishing a specific policy and protocol for environmental assessments for its multifamily lending program back in 1986. Under its Environmental Hazards Management Procedures, revised in 1988, Fannie Mae requires (1) a review of governmental records, (2) interviews with people who are familiar with the site, and (3) an inspection of the site called a "Phase I Assessment. " The purpose of the Phase I assessment is to determine quickly whether enough information exists to evaluate the status of the property clearly. A formal protocol for Phase I environmental assessments requires : 1. Documentation of information sources used to perform the assessment.

2. Inquiry into the presence of a. asbestos b . polycholorinated byphenyls (PCBs) c. radon d. underground storage tanks e. waste disposal facilities f. lead paint g. urea formaldehyde h. foam insulation (UFFI) i. lead levels in drinking water.

If there are obvious problems or if the environmental status of the property is uncertain, then Fannie Mae will not finance the property unless a Phase II report indicates that the property is environmentally sound.

Spring • 1993

A Phase II report requiring a more detailed review and physical sampling of the site is required when an investigation results in an inconclusive Phase I report.

The purpose of a Phase II assessment is to determine the presence or absence of an uncertain liability or to quantify the extent of an observed or suspected liability.

The procedures cite examples of Phase II work to be performed including: 1. Bulk asbestos sampling and analysis, and if required, development of abatement and maintenance programs.

2. Underground storage tank leak testing.

3. Soil sampling and analysis.

4. Groundwater sampling and analysis.

5. Testing of suspected PCB contaminated soil and/or facilities.

6. Investigation of the status of Superfund or RCRA enforcement actions related to neighboring properties.

After the completion of a Phase I, or if needed Phase II assessment, the inquiry isn't over. Fannie Mae also requires ongoing confirmation that the property is being maintained in an "e nvironmentally sound manner."

ASTM standards are well recognized by legislatures, courts and regulatory bodies. As such, it is likely that the ASTM standard, when timely adopted, will serve as the prevailing national standard for the scope of work for real estate site assessments.

State Superfund Laws No one really knows how much due diligence is necessary and until contamination is actually found, the due diligence effort is potentially endless . Practitioners should be aware, however, that most states have followed the lead of Congress by enacting a Superfund Law that parallels CERCLA. The state Superfund laws are designed to provide state agencies with the authority to respond to local hazardous waste incidents and to provide the funds necessary for taking responsive actions.

The Pennsylvania Hazardous Sites Cleanup Act provides for substantially the same liabilities and defenses as CERCLA, including the innocent landowner defense. 9 A major distinction in the Pennsylvania statute is that a foreclosing financial institution is exempt from liability if the only basis of liability is ownership of the land. 10The statute provides for no liability when: "an owner of real property if the real property is exclusively used as single- or multi-family housing of

four units or less or for private noncommercial recreational purposes, and the owner did not place the hazardous substance on the property, or the owner did not know and had no reason to know that a hazardous substance which is the subject of the release or threatened release was disposed on the site."11·12 But, again, the amount of inquiry required of a buyer before it will bar an assertion of liability is an open question.

Few states require such inquiry as part of the land sale contract-closing procedure, in particular for the individual , private purchaser. However, there are a minority of states (for instance, Connecticut, New Jersey and Illinois) which have provisions for such an inquiry that is trig gered by title transfer transactions. Those few states with inquiry provisions, however, are not uniform and varying degrees of inquiry are required.

Many may enter into a land sale contract without inquiring into the environmental aspects of the intended property because of the non-institutionalization of the in.quiry process. That simple property transaction is no longer simple.

Ken McKay is a third year evening student.

References 1. 42 USC §§9601 (1992) et seq as amended by Pub L No 99-499, October 17, 1986.

2. ld at § 9607(a).

3. ld at § 9607(b).

4. US v Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 737 (8th Cir 1986). The retroactive effect of CERCLA is not unconstitutional. US v RW Meyer, Inc., 889 F 2d 1497, 1506 (6th Cir 1989), ce rt den 494 US 1057 (1990).

5. The " as is " clause may not act as a bar to recovery in all cases. See, for example, International Clinical Laboratories v. Stevens, 710 F Supp 466 (ED NY 1989), where state co ntra c t law governed.

6. 42 USC § 9601(35)(B).

7. This approach is derived from that recommended in john C. Nanny, Environmental Risks in Real Estate Transactions, (2nd ed 1993). See also Robert A. Corbin, Standard Handbook of Environmental Engineering, (1990).

8. /d.

9. 35 Pa CSA §§ 6020.701 and 6020.703.

10. ld at § 6020.701(b)(1)(vi)(0) .

11. /d at§ 6020.701(b)(2) .

12. The question then arises: should you rely on this exemption when you prosecute even the smallest land transaction? note the retroact ivity provisions of CERCLA (see note 6, supra): who says the law won 't change in Pennsylvania, and be applied retroa ctively later to that transaction you make today?

The Recognition and Enforcement of Foreign Judgments " The expansion of American business and industry will hardly be encouraged if .. . we insist on a parochial concept that all disputes must be resolved under our laws and in our courts ... We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts. "1 An increase in international commerce and the simultaneous increase in the number of disputes that arise from it enhance the need for the United States to renew its effort to negotiate a treaty which provides for the recognition and enforcement of foreign judgments.

Holders of foreign money judgments encounter m inimal difficulty against U.S. debtors. Foreign judgments which otherwise meet U.S. Constitutional requirements have long been recognized and enforced by American courts under principles of comity. However, U.S. judgment holders currently face uncertainty in attempting to enforce their judgments abroad . Requirements differ from country to country. Some may require U.S. reciprocity, while others will almost certainly be difficult to ascertain without advice of local counsel.

Although the U.S. is a party to the New York Convention, 2 which provides for the recognition and enforcement of foreign arbitration awards, it is not a party to any treaty providing for similar recognition of foreign judgments. American delegates participated in drafting the initial Hague Convention in 1971. The convention attracted only three signator countries; the U .S. and other nations found the structure too complex and never ratified it. 3 The U.S. also participated in the negotiation of the Inter-American_ Convention on Foreign judgments, which was finalized in 1984, but neither signed nor ratified that treaty. 4 The U.S. has also been unsuccessful in negotiating bilateral treaties with its principal trading partners. The U .S. and the United Kingdom conducted extensive negotiations between 1974 and 1976.5 Despite the similarity of our legal systems, the draft convention ultimately foundered on British concerns over American treble damage antitrust judgments and "excessive" tort damage awards . The U.K. withdrew from negotiations in 1980.

The U.S. State Department's Legal Advisor recently proposed that the Hague Conference on Private International Law

attempt once again to draft a convention on the recognition and enforcement of foreign judgments. 6 The Hague Conference agreed to convene for a special meeting in October 1992 to discuss this proposal. Approval of the proposal makes a convention on judgments a priority item at the 17th Session of the Hague Conference, which is scheduled for May 1993.

The Hague Conference is an intergovernmental organization of legal experts drawn from approximately 38 countries. The Conference may be the best international organization to receive the U.S. proposal. Its membership includes major U.S. trading partners, such as Canada, Mexico and Japan, and the European Community and European Free Trade Association states. Congress authorized U.S. participation in the Hague Conference in 1963.7 The American Bar Association also advocates that the U.S. renew its efforts in this area. The ABA's Section of International Law and Practice has crafted a Recommendation encouraging a U.S. initiative that the Hague Conference explore the feasibility of a multilateral convention .8 If the House of Delegates approves it as ABA policy, the ABA Government Affairs Office will communicate the policy to the executive and legislative branches of the United States. 9 There has been considerable discussion about the scope of the proposed convention. One line of thinking is that the convention should simply provide for recognition and enforcement of judgments entered on jurisdictional bases whic h all member states recognize.

However, some nations argue that the convention should be extended to bar enforcement of judgments entered on jurisdictional bases they regard as unfair. 10 fair.10

However, there are compelling reasons for a nation's courts to recognize the judgments of foreign courts without substantial restriction. The princi ple of comity is an important element in friendly international relations. More specifically, recognition by a nation's courts of the lawful authority of foreign courts fosters judicial economy, fairness to private litigants, respect for the international order and the proper initial selection of appropriate forums.U European Community member states are required to accede to the Brussels Convention 13 providing for judgment recognition among themselves. The Lugano Convention 14 extends such cooperation among the member states of the European Free Trade Association.

These conventions have been subject to criticism because of their discriminatory treatment of EC and non-EC countries in matters of jurisdiction. Both conventions protect party nationals from judgments of courts based upon so-called "exorbitant" local bases of jurisdiction, such as the plaintiff's nationality. U.S. nationals remain at risk, however, to provisions which require enforcement against property owned by non-domicilaries of EC and EFTA countries.

A multilateral treaty with member states of the Brussels and Lugano Conventions would reduce the risk to American property interests and assets abroad. A treaty wou ld also lend uniformity to U.S. judgments law. Many foreign jurisd ictions require reciprocity before they w ill enforce a U.S. judgment. The failure of foreign cou rts to comprehend the diversity in law among the states, and between the state and federal systems, has led to a denial of judgment recognition simply because reciprocity could not be clearly demonstrated.

The Full Faith and Credit Clause of the U.S. Constitution, and its implementing statute, do not apply to to foreign judgments. Both are restricted to judicial proceedings among the several states.

There are good reasons not to apply the interstate recognition system to the dec ision s of foreign courts. U.S. courts, in enforcing foreign judgments - or foreign courts in enforcing U.S. judgments want the opportunity to test whether the foreign tribunals' factual findings are accurate and whether the assertion of authority to adjudicate can be regarded as fundamentally fair by the enforcing nations' standards.

Some foreign tribunal s also object to U.S. antitrust laws, treble damages, punitive damages and large j ury awards in products liability cases. The Federal Supreme Court of Germany, for example, recently failed to fully recognize a California judgment awarding exemplary and punitive damages. 15 German public policy in awarding damages is to com pensate the plaintiff for injury, but not to punish the defendant or to deter others. These types of objections should not be an excuse or a barrier to the execution of a judgments convention. A treaty could easily provide an escape clause to allow nonrecognit ion of those judgments which are contrary to

Juris

"f<&.AATU NJkKlb SAi~TA ''

the public policy of the enforcing country.

Here at home, pre-emptive federal legislation could also provide a direct method of unifying the current rules among the states. Congress clearly has the authority to pre-empt state law in this area by their power "to regulate Commerce with foreign Nations, and among the several States." 16 Admittedly, federal legislation offers no guarantee that foreign tribunals will recognize U.S. judgments in return . Federal law would, however, provide cognizable proof of U.S. recognition policy for foreign courts requiring reciprocity.

Widespread adoption of the Uniform Foreign Money-Judgments Recognition Act 17 and the related Uniform Enforcement of Foreign Judgments Act, 18 would also enhance uniformity. Unfortunately, only fifteen states, including Pennsylvania, 19 have adopted both acts without injecting a reciprocity requirement.

The Recognition Act was specifically designed to aid in the enforcement of U.S. judgments before tribunals which demand reciprocity. The act is quite similar to existing common law and to the Restatements.10 The act provides for comity as a general principle and sets forth the various grounds for nonrecognition of judgments by U.S. courts. The most common objections involve judgments based upon inadequate jurisdiction of the foreign court, judgments which contravene public policy, and incompatible due process or fair trial requirements which exist in some foreign courts.

Federal courts originally adopted the common law doctrine of comity, but provided that foreign judgments which met due process requirements would be enforced only if the foreign court recognized U.S. judgments on a reciprocal basis.11 The reciprocity requirement has been thoroughly criticized and is no

Spring • 1993

longer followed in most American jurisdictions. Since Erie, 22 the states have been free to define for themselves the standards to be used in recognizing foreign judgments, absent federal legislation or a treaty, and federal courts sitting in d iversity are bound to follow those standards .

Federal law would likely be applied only as an exception where state law standards "would result in the disruption or embarrassment of the United States." 23 Past forecasts for positive change have not been promising. Treaties have been difficult to negotiate, even with countries having legal traditions close to our own . No real effort has developed among legislators to address judgment recognition. Finally, states have been sluggish in adopting uniform acts or have been prone not to change them at all.

However, changes in this area have addressed some of the concerns other governments have expressed regarding the effects of a judgment recognition treaty with the U.S. 14 The success of enforcing arbitration awards in over eighty countries under the New York Convention demonstrates that treaties in this area can work.

The proposals made by the State Department and the ABA Section of International Law that the Hague Conference attempt a renewed effort to draft a convention on the recognition and enforcement of foreign judgments should be encouraged. Amicable international relations, commercial pressures to expand economic activities globally, and the risks that U.S. assets abroad currently face demand nothing less.

Thomas A. Slowey is a third year day student.

References 1. Comm ent of Mr. Chief justice Burger in The Bremen v Zapata Off-Shore Company, 407 US 1 (US 1972).

2. United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 21 UST 2517, TIAS 6997, 330 UNTS 38.

3. 1971 Hague Convention on juri sdiction and Enforcement of judgments in Civil and Commercial Matters. See 35 NILR 196, 214 (1988).

4. OAS Treaty Ser No N39.

5. Woodward , Reciprocal Recognition and Enforcement of Civil judgments in the US, UK, and the EEC, 8 Nj I Inti L & Com Reg 299 (1983).

6. Hague Conference to Draft Convention on Enforcing Foreign judgments, Inti Law News, Vol 21 , No 4 Fall 1992.

7. 22 usc §269g (1988).

8. ABA Sec. of International Law and Practice, Recommendation 109A, December 11, 1992.

9. Did You Ever Want To Be Secretary Of State?, Inti Law News, Vol 22, No 1 Winter 1993.

10. One type of American juri sdiction which some Europeans view as unfair is jurisdiction based on personal sevice upon a nonresident while tem porarily in the state on other business.

See Burnham v California Superior Court, 110 SCI 2105 (1990).

11 . US CONST art IV, §1 and 28 USC §1738 (1988).

12. Casad, issue Preclusion and Foreign Country judgments: Whose Law? 70 Iowa L Rev 53, 61 (1984).

13. 1968 Convention on jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, reprinted at 29 ILM 1413 (1990) .

14. Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Mailers, reprinted at 28 ILM 620 (1989).

15. Judgment of June 4, 1992, 1992 NjW 3073.

16. US CONST art I, §8, cl 3.

17. 13 ULA 263 (1986).

18. 13 ULA 149 (1986).

19. 42 PA CONS STAT ANN §§22001-22009 (Purdon's Supp 1991) and 42 PA CONS STAT ANN §4306 (Purdon 1981).

20. Restatement (Third) of Foreign Relations Law §§481 , 482 (1986).

21 . Hilton v Guyot, 159 US 113 (1895).

22. Erie Railroad v Tompkins, 304 US 64 (1938).

23. Restatement (Second) of Conflict of Laws, §98, comment c (1986 revision).

24. Brand, Enforcement Of Foreign Money-Judgments In The United States: In Search Of Uniformity And International Acceptance, 67 Notre Dame L Rev 253 (1991).

Duquesne Law: john D. Finnegan graduated from Duquesne Law School in 1967. Colleen A. Finnegan, his daughter, will graduate from Duquesne Law School in 1995.

THEN ...

I began to write this article with great trepidation, not because of a fear of writing, not because of lack of interest or failure of memory, but because of the realization that I have offspring who are now old enough and capable of writing competing and far-more interesting articles. Having said that, as I creep westward on Parkway East for the twenty-fifth year toward an all-too familiar courtroom, 1 reminisce and review my legal education and environment in the mid-1960s at Duquesne University School of Law .. . .

After graduating from college and entering law school, I suddenly realized that what I believed to be respectable grades had been accompanied by considerable Irish luck, many wings, and countless prayers, most of them supplied by other people. In any event, having had the good fortune to be admitted into an alien post-graduate atmosphere, I approached the first day of school with wonderment, anxiety and downright fear.

Uncertain how to dress and with a not-particularly happy blessing from my father, I purchased my first two suits on his charge account (not VISA). I also purchased two ties. The suits were dark blue and dark gray. The ties were dark gray and dark burgundy. My fear was so deep on that the first day of school that I could not wear the burgundy tie, for fear it would be too wild for law school. Therefore, I wore the dark gray suit and the dark gray tie. I hesitate to admit that this was my wardrobe for three years. I also must admit that in May of my first year of law school, I was surprised to see everyone dressed in what appeared to be clown outfits, but which I later learned were Madras sports jackets.

Required courses were imposed upon us for three years, with the exception of perhaps one or two electives taken near the end of my law school career. All were entitled with names no one understoodTorts? Classes were attended by all. Missing class was a far more serious offense than Murder I and carried with it a greater penalty, as it involved public embarrassment of a nature unique only to law school.

Along with classes came the threatening experience of receiving our grades. Law schools and law school professors were disinclined to give periodic tests, as the rest of ac;)demia sees fit to do. One's life hung in the balance at the end of each semester, or year, with the clearly-conveyed understanding that only the best and the brightest would receive a "C", professors were entitled to a "B" and only Supreme Beings might realistically hope for an " A". That- coupled with

My fear was so deep on that first day of school that / could not wear the burgundy tie, for fear it would be too wild for law school. the standardized warning the first day of class that if you looked to your left and looked to your right, neither of those persons would be there at the end of the year -obviously caused some fear and confusion as to who would remain and who would be seeking other lines of work.

Professors were stodgy and serious; however, not without a sense of humor.

Unfortunately, with tight neckties and high gripping collars which caused the eyes to bulge, students often failed to demonstrate that they had teeth. Only slight smiles were manageable.

Most of one's day was spent at the law school. It was often difficult to find a

john D. Finnegan, L'67

seat in the library- occassional wh ispering was grudgingly permitted. Research was done with books. Cases were briefed by hand. Facts were something elicited from reading cases.

Socializing certainly occurred.

However, it was limited to Friday nights after 9:00 p.m . and Saturday even ings.

Other than that, there was required studying and library time of approximately 4,000 hours per week- none of which seemed to produce any real understanding of the courses, whose names you still had to look at the cover of the book to remember.

The const itutional issues of the day centered around the recent Miranda case, an occasional First Amendment fla ir and a considerable number of cases involving interstate commerce - whatever that is.

Parking a car was something that was mostly done on sidewalks and in alleys. A garage was something that the more well-to-do people in the suburbs had. Cars were not permitted to law students on campus unless they were at least ten years old with a minimum of 110,000 miles. They also were required to fail to start at least two days per week.

The most outstanding building on campus, if not in the world , was Rockwell Hall. Only the elite were permitted to attend classes there. The seventh and eighth floors, the "law school,'' were open forty hours a day, twenty-three days per week and six hundred fifty-three days per year, to accommodate all those desiring to participate. Snow days were science fiction.

Juris

A Family Practice Travel to parti es was quite often over the then , state of the art, Fort Pitt Bridge (thanks to Jerry Mansmann and Jeff Bradgon). O ccasionally, a misdirected younger law student ventured across the "Bridge to Nowhere", now known as the Fort Duquesne Bridge. Of course, all of that activity only occurred late Friday night or Saturday evening.

Most people still had to tell their parents not only how they were doing in school, but where they were going on the weekend .

I

It was a time when lawyers were simply lawyers, expected to handle any type of problem which may come their way whether it be civil , criminal, domestic or something wh ich belonged in a place called Orphans' Court. Environmental concerns were those within three or four feet of one's library chair. Freedom of speech was the duty to respond when selected by a professor to answer a question . Student rights were the privilege of attending class and engaging in the learning experience . . . . It is later in the day now. The Judge was kind to me. While some of the memories fade, and the Parkway is less crowded going East at mid-day, I still reminisce about what I believe to be one of the finest educations the world has to offer. I am thankful for what it has done for me in not only providing an opportunity to practice some of the things I learned many years ago, but also providing a meaningful quality of life for myself and my family. The real prize, however, is the joy a parent receives in knowing that a high-quality institution of learning such as Duquesne University is still there and available to provide the same and even better learning experience for my children.

I can say that I am proud to have attended Duquesne University School of law and thank it for being available to provide my daughter an outstanding legal education .

John D. Finnegan, l'67, is a sole practitioner in Monroeville, Pa.

Spring â&#x20AC;˘ 1993

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The Law School, 1911

.. . And NOW When I was a freshman in college, I had vague thoughts of someday attending law school. As my father is an attorney, I thought it might be best to seek his advice (besides, he said he'd give me a discount). So, I asked him: "Dad, should I major in pre-law so's I can be a lawyer?"

His response was, " What' s pre-law? " I guess you get what you pay for.

As a junior in college, the idea of continuing my education at law school remained an avenue that , at the t ime, I thought would be pretty cool. Poor college student that I was, I figured I'd better stick to the 'ol bargain: "Dad, should I take the lSATs? And what about that

course that supposedly prepares you for it? And, ah, could you pay for it? " His reply: " The lSAwhats? What course?? Geeze, Coli, when I went to law school all I had to do was sign up. " At that point, I suspected that a few things might have changed since my dad had gone though the law school experience.

My suspicions were confirmed after my first day at Duquesne law School. I came home after class, excited to tell my dad all about it. But before I could utter a word, he exploded in shock and dismay: "I hope you didn't wear that to class." looking down at my denim shorts and blouse, wondering what all the fuss was about, I replied , " Well, yeah . What 's the big deal?" His reply was Classical Stuffy: "Well (shades of Ronald Reagan?), when I was your age (oh no!) I had two suits, just two, one blue and one grey, and I used to trade off wearing them every other day."

iD

status as an evening student, but my idea of a meal at school is a bag of chips .

(Besides, a school cafeteria seems like an odd location to meet the person with whom you will spend the rest of your life.

What did he say to her? "How 'bout that soup d 'jour?")

"The most outstanding building on campus, if not in the world, was Rockwell Hall."

"Ah, OK, Dad. I don't think Duquesne is quite like that any more."

Conversations like the above occur almost every time I seek advice from my father. The selection of classes is always a good one. Last year, when I was contemplating what electives I should choose, I became somewhat confused and even frustrated. I again asked my dad what he thought I should do. His response, whi ch probably would have been long and analytical, had I refrained from cutting him off, consisted of his philosophy on how the law profession is very specialized today, and how important it was for me to become famila r with different areas of the law. It was th en th at I decided that my dad must be a smart lawyer. Even if he isn' t sure of the answer, he is always able to come up with quite a few reasons that make his opinion look like the correct one.

Not surprisingly, my experi ence at Duquesne ha s been quite different from my father' s. Sometime s I wond er if th ey are even comparable. M any of th e stories he tells me about his days in law school revolve around the few guys that he studied with. He makes it sound like studying law was all that w ent on around here. I don't observe the same sort of atmosphere around sc hool th ese days. Today you don ' t find groups of stud ent s lining up to get into the st udy rooms, or hear th em complaining that the library closes too early. Maybe a few outbursts are had around exa m time, but that 's about it. For th e most part, I study on my

own, and I think this is the rule, not the exception. Although having a group with which to meet every day and discuss class material and hot legal topics would surely provide some motivation, the only time I see students engaging in deep legal discourse is at SBA free beer nights.

I have a feeling my father's social life was a little different from what we do today. My parents tell me th ey met in the cafeteria at Duquesne. Cafeteria? Where's that? Maybe my view comes from my

That's another funny thing: my mom was a Duquesne undergrad. How did a law student get to meet a Duquesne undergrad? I doubt I'd know one if I tripped over him. My "campus" is the space between my car and the Law School.

Anyway, one of my favorite Tall Tales dad likes to tell is how he studied every day and every night, even Friday night, until the library closed . He tells me how he would call my mother from the library on Friday night (how sweet) and how they would go out every Saturday night. Of course, the big date only came after he'd worked all day in the library, in one of his two suits. Although I have been at Duquesne on many a Friday night for class, I must confess I have never set foot in the library on a Friday night. judging by what I' ve seen through the windows, I'm willing to bet that most of my classmates are also participating in th e great Friday night library boycott.

Then ...

Juris

I guess that studying and preparing for class is a lot more laid-back these days. For one thing, the nineties brought us the word "pass". I like that word . It's handy when you ' re on the hot seat- sort of like air conditioning for the casebook method. I taught my dad the meaning of that word my first semester at Duquesne, and he was amazed at how progressive legal academia has become. Another great thing about the nineties is that big business and modern technology have at long last been applied to the law.

Can you imagine Shepardizing without LEX IS or WESTLAW? Or studying without commercial outlines?

"Not surprisingly my experience at Duquesne has been quite different from my father's."

Class attendance seems to be a little less of a big deal th ese days. As a second year evening student, I've noticed class attendance wavering a bit. I'm not one to blow off class on a regular basis, but there have been certain times when I've found better things to do. No big

deal-! can get the notes, or read Emmanuals. Although I consider myself a hard worker, my dad does not seem to understand my attitude. I feel one must establish one 's priorities, and on occasion

one' s priorities are apt to change. For me, the need for a change seems to rear its head toward the end of the week.

I know of one thing that hasn't changed at Duquesne Law School. Finals!

I am by now used to drinking eggnog over my outlines. It 's an awful time of the year and I don ' t quite understand the rationale behind the scheduling . But, drudging through my first holiday season at Duquesne, it was comforting to know that at least one family member understood why I mail-ordered all my gifts, and why everyone got the exact same thing. He knew it was the thought that counted- although I am sure he was wondering if I had any thoughts left to count. Maybe someday the administration will adopt a sane midterm schedule . If they do, then maybe I can say to my child: "When I was in law school , we didn 't have it as easy as you do today ... "

"Can you imagine Shepardizing without LEX/5 or WESTLA W?"

and Now

Colleen A. Finnegan is a second year evening student.

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Spring â&#x20AC;˘ 1993

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Blue v. Blue The Pennsylvania Supreme Court recently decided in the case of Blue v. Blue 1 that college educational support is not a necessary element of child support under Pennsylvania law. The Supreme Court further maintained that the imposition of such a duty is a function of the legislature and not that of the courts.

Reginald Blue was enrolled in classes at Penn State University. His parents had assumed responsibility for his tuition payments. After his parents' separation, Reginald decided to move in with his father and transferred to Lehigh Community College. As Reginald's parents were employees of the College, his tuition expenses were covered in full. A few months after his enrollment in the community college, Reginald's life was upset once again by his father's decision to "get on with his life" by purchasing a new home for himself and his girlfriend, leaving Reginald be-: hind at the marital residence. Soon after his father's departure, Reginald reapplied and was again accepted by Penn State.

However, because Reginald lacked sufficient funding to meet his educational expenses, he brought an educational support action against his father.

The trial court ordered that Mr. Blue pay $4,600 per year toward his son's college expenses. The trial court further ordered Reginald to apply for and accept any financial aid, loans and grants that he may be entitled to. The support amount that Mr. Blue was obligated to pay would be offset by any financial aid, loans or grants that Reginald might receive. The $4600.00 figure was based on Mr. Blue's ability to pay, guarding against the imposition of an undue financial hardship on him. This decision stemmed from a line of cases which hold that a parent may be deemed responsible for college educational expenses if the parent meets the following criteria: the parent has the financial ability to pay without causing an undue financial burden on him or her; the child has the ability to pursue a college education; and, there is no willful estrangement between the child and the parent caused by the child. 2

The Superior Court upheld the trial court's decision with respect to the amount of the award, but declined to utilize the financial aid offset. The Superior Court maintained that the father had an affirmative duty to provide educational support for his son if the father had the financial ability to pay and further decided that any financial aid the son might receive will not lessen the father's duty to provide such support for his son. The Superior Court stated that since it is the duty of the parent to bear the financial responsibility for a child's college expenses a parent should not be excused from this by shifting the burden to the child, i.e., requiring the child to secure

adopt a legal principle that a parent has a legal obligation to provide college expenses but rather permitted recovery of college expenses if a parent had the financial ability to do so, because the parties' agreement had required that result."â&#x20AC;˘ The Supreme Court determined that when the Superior Court decided Sommerville, the first case requiring college educational support, it inappropriately relied on Commonwealth v. Gilmore 5 The Gilmore decision stands for the proposition that a father is obligated to continue supporting his child even though the child has reached the age where it is permissible to drop out of high school. The Court's rationale is based on the consideration

Proposed legislation dealing with the obligation of a parent to provide . educational support was defined soon after Blue was decided . .. loans and/or grants.

The Pennsylvania Supreme Court reversed, finding that absent an affirmative agreement to do so, a parent shall not be obligated to provide educational support for his or her college age child.

The only time the Supreme Court directly addressed the issue of a parent's obligation to pay for a child's postsecondary educational costs was in Emerick v. Emerick. 3 In Emerick, the mother and father entered into an agreement that was incorporated into the divorce decree which required the father to bear the costs of a four year college education for his children according to his financial ability.

The Court held the father responsible for his children's college costs.

The Supreme Court explained that its decision in Emerick to uphold the idea of college educational support was based upon the existence of the agreement. It further stated, "[w]e did not unequivocally

that a high school education is perceived to be a necessity rather than a luxury.

At the time Gilmore was decided, according to the Supreme Court, education was deemed to be a necessity in the preparation of a child for the rigors of life and in assisting that child in becoming a useful part of society. The Supreme Court also stated that the use of the term "education" at that time (the 1930's) did not contemplate collegiate or professional education but rather was confined to elementary and vocational education.

"The reason for this distinction was that elementary education was considered a necessary element of support much like food, clothing and housing."

Simply, Sommerville dealt with providing college eduction, whereas Gilmore was concerned with the obligation to finance a child's high school education.

The Superior Court, according to justice Zappala, transferred the "principle of

Juris

necessity" of a basic fundamental education found in Gilmore to a requirement that each child be entitled to an "enhanced" education. The Supreme Court determined that the two were distinct Clnd as such do not merit the same treatment.

The Supreme Court recognized that under common law, a parent had a duty to support a minor child. However, because the legislature bestowed majority on a child at the age of 18, the Court concluded that the common law duty of support must also end at age 18. As of today, our legislature has been silent with respect to a parent's obligation to provide college educational support for a child no longer deemed to be a minor. "[S]ince no legal duty has been imposed by our legislature, nor have we developed such a duty by our case law,we decline to do so ... [W]e feel the more prudent course is to await guidance from the legislature rather than creating duties and obligations by judicial pronouncement. " 6 Proposed legislation dealing with the obligation of a parent to provide postsecondary educational support was drafted soon after Blue was decided, including a provision for retroactivity to November 13, 1992, the date of the Blue decision. The new amendment attempts to put the controversy to rest by requiring parents to provide college educational support for their children. The new legislation would be found at 23 PaCSA sec 4321.1, entitled "Post secondary Educational Expenses".

The statute, as originally drafted, provides that a parent would be responsible for the reasonable and necessary post-secondary educational expenses of an unemancipated child. It requires courts to consider, among other things, the child's ability and willingness to successfully pursue his course of studies, the child's income and ability to receive financial aid, and the parents' earning capacity or income. Support will not be granted if to do so would cause undue financial hardship to the parent or if the child is older than twenty-three, unless exceptional circumstances exist.

As of March 8, 1993, this amendment was passed by the Pennsylvania House of Representatives and was then sent to the Senate for consideration. The Senate proposed its own amendment and delivered its changes to the Senate Committee on Children and Aging for further

Spring â&#x20AC;˘ 1993

"OK, folks - Stay together and the kid's on his own. Split, and one of you is sending him to a school of the other's choice. â&#x20AC;˘

review. The Senate's amendment does not include a provision for automatic termination of support after the student's twentythird birthday, and further does not differentiate between divorced parents and those who are still married. It is expected that such legislation will be passed prior to the commencement of the 1993 fall term.

In conclusion, it is crucial to recognize under our current economic climate that education beyond high school is no longer a luxury. It is important that our legislature and judiciary recognize this necessity and provide measures which will accommodate students whose parents refuse to pay for their child's education.

Allegheny County courts have taken the position not to terminate this type of support while a child is currently enrolled in college and where the child would otherwise be required to withdraw from school due to lack of funding. The courts of the Family Division are merely issuing hearing dates on the payor's petition to terminate educational support instead of granting immediate termination. Hearings are scheduled to begin after the spring semester is over.

Chester Beattie is a second year evening student.

Both custodial parents and children currently enrolled in college are hopeful that the legislature will act quickly. Everyone with a stake in the matter is waiting with apprehension to see whether next semester will be spent standing in line waiting for a loan application or a McDonald's employment application.

References

1. _ Pa _ , 616 A2d 628 (1992).

2. Commonwealth ex rei. Ulmer v Som¡ merville, 200 Pa Super 640, 190 A2d 182 (1%3); Emerick v Emerick, 445 Pa 428, 284 A2d 682 (1971); and, Milne v Milne, 383 Pa Super 1n, 556 A2d 854 (1989).

3. Emirick v. Emirick, 445 Pa 428, 284 A2d 682 (1971).

4. Blue, 616 A2d at 629.

5. Commonwealth v Gilmore, 97 Pa Super 303, (1929).

6. Blue at 632.

WHEN THE LAW DOESN'T WORK:

A defendant's right to confront his accusers is fundamental . ..

Place yourself in the shoes of Sharon Dunnigan: Dunnigan was brought before the United States District Court for the Southern District of West Virginia on charges of conspiracy to distribute cocaine. The government's case consisted of calling forth several witnesses to testify as to the defendant's participation in drug trafficking. As the only witness in her defense, Dunnigan took the stand and denied the incriminating testimony presented by the government as to her possession and distribution of cocaine. Dunnigan was found guilty as charged. Upon conviction, however, she was further penalized by the court by being given an "enhanced" sentence, on the grounds that she had willfully obstructed justice by perjuring herself on the stand. The United States Court of Appeals for the Fourth Circuit affirmed Dunnigan's conviction, but vacated the sentence. The Circuit Court held that enhancement of a defendant's sentence based on a finding that the defendant had obstructed justice by testifying untruthfully at trial placed an "intolerable burden" on the defendant's right to testify on her own behalf. 1 The government pursued the issue further. On writ of certiorari to the United States Court of Appeals for the Fourth Circuit, the Supreme Court of the United States held that, upon a proper determination that the accused has committed perjury at trial, a court may enhance the accused 's sentence under federal sentencing guidelines.

The United States Sentencing Guidelines provide judges with algebraic formulas by which to determine the sentences of people convicted in federal court. For instance, after she was found guilty of the drug charges, Dunnigan's "base offense level" was established at 22.

The government then requested that this

be increased by two levels for perjury under Guideline 3C.1: "willfully obstructing or impeding proceedings." The District Court agreed with the government's contention that perjury constituted an obstruction of justice and sentenced Dunnigan to 51 months' incarceration, based on an offense level of 24. The appellate court vacated the sentence, on the grounds that regarding perjury as a sentence-enhancing obstruction of justice would unduly burden a person's right to testify on his own behalf.

Here, however, the Supreme Court agreed with the trial court. Although noting that "the ordinary task of trial courts is to sift true from false testimony . .. the problem caused by simple perjury was not so much an obstruction of justice as a part of its administration," the High Court interpreted perjury to be a sentenceenhancing " obstruction" as described by Guideline 3C.1.

Neither the lower court nor the Supreme Court specifically defines the standard to be used in determining whether to apply enhancement. However, in the case of Sharon Dunnigan, the government "maintained that every defendant who takes the stand and is convicted should be given the obstruction of justice enhancement." 2 Naturally, if juries always believed defendants' testimony and denials of guilt, every trial would result in acquittal. However, the lower court believed that the government was asking far too much when it advocated a sentence enhancement for every defendant who takes advantage of his right to take the stand in his own defense and is subsequently found guilty. When faced with an automatic enhancement, many defendants will tend to feel that testifying on their own behalf is not worth the risk.3

Ironically, the Supreme Court states in Dunnigan that enhancement is not automatic. "Not every testifying defendant who is convicted qualifies for a §3C.1 enhancement. If a defendant objects to such an enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish that the defendant committed perjury."â&#x20AC;˘ This, at best, seems contradictory. The Supreme Court attempts to support indirectly that which it directly condemns. After imposition of the enhancement, the district court reviews the facts and makes a redetermination only upon request by the convicted defendant. In other words, the enhancement is automatic. If the guidelines are adhered to, an enhancement of every convicted defendant's sentence will become automatic. Every defendant who has the nerve, so to speak, to take the stand in his own defense, but is subsequently found guilty, will be additionally sanctioned for a "willful" obstruction of justice.

The dictionary defines "enhance" as "to make greater (as in value, desirability, or attractiveness)." 5 The United States Sentencing Guidelines provide the following with respect to the enhancement of a defendant's sentence: "If the defendant willfully impeded or obstructed , or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase the [defendant's] offense level by two levels." 6 Clearly the guidelines fail to fulfill the expectations conjured by the definition . The commentary to the section provides that sentence enhancement is clearly applicable in cases involving "testifying untruthfully or suborning untruthful testimony concerning a material fact, .. . during a preliminary or grand jury proceeding, trial, sentencing proceeding, or any other judicial proceeding." 7 Enhancement is a punitive tool used in retaliation against the defendant's wrongdoing while on the stand . In other words, the defendant is actually being sanctioned as though he had committed an offense in addition to that for which he was on trial. Convicted defendants will be sentenced for both the crime and the trial.

Historically, the nature and importance of taking an oath before God and swearing to speak the truth "and only the

Juris

U.S. V. DUNNIGAN truth" has influenced the unyielding attitude with which the modern judicial system approaches the subject. The idea is that you shall answer for your perjury "On that Last Great Day." From a practical standpoint, if there were no impediments to lying on the stand, the entire judicial system would be seriously undermined.

Defendants, otherwise, given their obvious interest in the outcome of their trial, would most likely say anything and everything to influence a favorable finding by the jury. At some point, however, it seems that the theoretical and the realistic reasoning behind sentence enhancements take divergent paths.

Deterrence of perjury, or criminalized lying under oath , is certainly important to the smooth functioning of the legal system. However, the threat of an enhanced sentence in the event of a guilty verdict will inhibit defendants from testifying in their own defense. The threat of enhancement may prove to deter testimony by a defendant whose participation in the trial process would otherwise have a significant impact on the outcome of the case. Instead of proving a useful deterrent against perjury, enhancement actually seems to have become more of an administrative tool for judges who place their own interest in expediency ahead o f

the defendants' right to take the stand and do their best to defend themselves on their own behalfs.

While one might argue that anytime it is discovered that a defendant has lied on the stand an enhancement of the defendant' s sentence would serve as an appropriate penalty, the utilization of across-the-board automatic enhancement discounts the very essence of our adjud ication process. Not every defendant who has proclaimed his innocence wh ile on trial only to be greeted by a subsequent conviction is necessarily gu ilty of perjury, nor should he be deemed to have automatically willfully obstructed justice. Such treatment could be perceived to be an obstruction of justice in and of itself. First, a defendant who chooses to proceed to trial, in the first instance, usually feels reasonably confident about the chance of acquittal and as such has most likely passed up a previous opportunity to negotiate for a lesser charge and, accordingly, a lesser sentence. Further, it is hardly uncommon that a defendant on trial will naturally proclaim himself or herself innocent. As iterated by the Circuit Court, "a defendant's denial of guilt is not a basis for application of this provision." 6 It is crucial to recognize that " the accused may give inaccurate testimo ny as a result of

confusion, mistake or fa ulty memory or give truthful testimony that a jury finds insufficient to excuse criminal liability." 6 It seems that the Supreme Court turned its back on a basic tenet of constitutional law. A defendant's right to confront his accusers is fundamental to our ideas of freedom. Th is makes it all the more galling when the guidelines suggest that testimony by an accused is deemed to have "obstructed" justice merely because a jury finds in favor of the government. The decision to take the stand, in and of itself, is one of great complexity.

It is deserving o f more than passing attention. The defendant is aware that choosing not to take the stand in his or her own defense has been proven, historically, to have a detrimental effect on a defendant's case. While defendants are given the option of remain ing silent and juries are carefully instructed to draw no negative inference from such a choice, the defendant is aware of the impact of such a decision . More im portantly, the note to the guideline expressly provides that the provision is not intended to punish a defendant for exercising his constitutional right.

Not only is one innocent until proven gu ilty but, as a corollary, not all who are found guilty are actual ly guilty.

Thi s is not an implication that wrongful conviction s are a common occurrence, but they do occur. juries are not in fallible. " The rigid ity of the guidelines makes the §3C.1 enhancement for a disbelieved denial o f guilt under oath an intolerable burden upon the defendant' s right to testify in his own behalf." 9 Carol Cusherowski is a second year day student.

References 1. United States v Dunnigan, 944 F2d 178, 185 (4th Cir 1991 ).

2. ld.

3. ld.

4 . /d.

5. Webster's Seventh New Collegiate D ictionary, (7th Edition) 6. Federal Sentencing Guidelines, 3C. 1 (November 1, 1992) 7. /d.

8. Dunningan at 184 9. Dunningan at 185

Spring â&#x20AC;˘ 1993

at the side bar

America's Funniest Criminals As the screen of my TV set flickered in the darkness, David Koresh was explaining the significance of the Seven Seals to CNN's Bernard Shaw when it suddenly occurred to me what's wrong with our country.

America's criminals just aren't funny anymore.

You're probably thinking, what's so funny about crime? That's exactly my point.

Take David Koresh, aka the Wacko from Waco. He may not be the Prince of Peace, but I was beginning to wonder if the Millennium would be upon us before he'd finished talking. If they renamed Godspe/1 in his honor, it would probably be titled Godspiel.

There was a time when being a wise guy meant that one had to be as quick with a bon mot as one was with a gun.

Speaking of which, AI Capone once quipped, "You can get much further with a kind word and a gun than you can with a kind word alone."

Ask Geraldo if Capone didn't have a sense of humor.

My vote for America's funniest criminal has to go to Willie Sutton, a bankrobber who was nicknamed the "Actor" because he had so many disguises.

A reporter once asked Willie why he robbed banks. "Because that's where the money is," Willie answered.

Willie Sutton has been dead for more than a decade. In the interim, his criminal descendants have squandered their capital in this area, and America's lead in the humor department has been overtaken by (you guessed it) the Japanese.

Lest there be any doubt about Japan's new supremacy in this area, one need only recall the terrorist group that held that nation at bay for much of the 1980s. I'm not talking about the Japanese Red Army. I'm talking about The Man with 21 Faces.

The Man with 21 Faces was named after a popular pre-war Japanese comic book character. The gang was first heard from in 1984 when it kidnapped a Japanese candy company executive dripping wet from his bath. Although the CEO later escaped, he was somewhat red-faced (not to mention em-bare-assed) over the incident.

The Man with 21 Faces subsequently attempted to extort millions of yen from the Japanese candy industry by threatening to place poisoned candy on retail shelves shortly before Valentine's Day. Although the Valentine's Day crisis was averted, the threats continued for another 18 months. Each time, the police would receive a taunting letter from the gang, hinting as to their whereabouts. Each time, the police found the poisoned candy but came up empty-handed in their attempts to apprehend the gang members.

Despite the seriousness of the gang's extortion threats, no one was injured by their antics until a police official, embarrassed by the gang's taunts and frustrated by his inability to catch the fel-

ons, committed hara-kari. (Imagine an American cop being so conscientious about crime!) Mortified by the policeman's actions, the gang issued a public apology and withdrew its extortion threat. The Man with 21 Faces was never heard from again.

That's good, because America's funniest criminals may be making a comeback. Remember that scene in Take the Money and Run where Woody Allen misspells his bank holdup note, "I have a gub"? Now imagine how the World Trade Center bombers must have signed their van rental agreement.

Michael Zimecki is a third year evening student.

"Yea. In this field you gotta stay strong. In and out of the coultroom.

Sharp txxly, sharp mind.

Exercise is tho key to winning.

I fully support a well bal. .. â&#x20AC;˘

DEFENDANrSLAWYER

PLAINTIFF'S LAWYER

Juris

People Who Were Invited to Speak During Graduation, and Their Reasons for Not Speaking

Winner Announced * The results of the Law School motto competHion have been handed down. First Place wentto aday student's entry, "Waaaah waaaah waaaah." Second went to a night student for, •Everybody hates us."

- Bill Clinton burned his invitation, but did not inhale and did not enjoy it.

•••••••••••••••••••••••

- Dan Quayle mailed his acceptance to "Pennsburgh, Pittsylvania."

Dear Answerman, To be or not to be? That is the question. Whether 'is nobler in the mind to suffer the slings and arrows of outrageous fortune, or the fear nothing but new taxes.

Hey! Hoi Westward Hoi Oh, I don't want to work, I just wanna bang on de drums all day ...

- #o/o$#§¢ Dear Panicky, Almost out of school and no job yet, huh? Answerman sympathizes. We all sympathize. Has anyone looked Into that domestic Peace Corp thing?

Special Offer I Duquesne Law Trading Cards

- Ross Perot agreed to speak, then backed out, then agreed to speak, then ...

- The title of Pat Robertson's speech, "Why Catholics and Jews Should Go Back Where They Came From", was deemed inappropriate.

- The title of Louis Farrakhan's speech, "Why Catholics and Jews and White People Should Go Back Where They Came From", was deemed inappropriate.

-All the rivers and bridges around here made Ted Kennedy nervous.

- The Dalai Uama and Professor Taylor had an early tee time.

- Salmon Rushdie won't come unless he gets to use the Pope's bubble.

- Edgar Snyder said, "There's no speech unless we get money for you!" ·

A'a Turned In Allendlnoe-Taking Percenlagl

54

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l..alVI Hobblle: In the olleeaeon, Prof.

Sekula lkla 10 llaple equirrlla loglth«.

The Juris staff, having discovered a cache ofhilarious old photos ofprofs In their youths, has decided to tum a fast buck by issuing a limited edition of ProfTM Trading Cards.

Spring • 1993

Duquesne University School

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Sponsored by The Student Bar Association Contact: LEONARD GRENCE - 434-6299

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