Juris Magazine- Fall 1993

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up front

JURIS

To whom it may concern, Gone is the summer of '93 and along with it the many plans and projects that were never fulfilled in the summer of '92.

Also gone are the summer's swimwear (thank God), the cliche-sloganed colawars, and our much embraced beer commercials featuring attorneys as rodeo prey (less filling, poor taste). For students, summer's anxiety has turned into fall's realities which will be followed by winter's sleepless nights.

Congratulations to last year's Juris staff on earning second place in the Law School Division of the ABA magazine contest (editors' pat on the back). This year's staff (the fall of malcontents) can only hope to continue the precedence of quality and dedication. In keeping with tradition, we hope you will enjoy many of the same types of articles and stories we've brought to you over the years.

In this issue you will meet the new administration of the Law school. Associate Dean Sekula and Assistant Dean Rago, under the guidance of Dean Cafardi , assumed office on July 1 of this year.

Along with our old favorites (alumni, recent decisions) we have the commencement address by Judge Lewis wherein three old friends give some advice to the '93 graduates. Students also get some interesting advice from Jayme Deibler on how to "rest their brains ."

Also in this issue, some real news you can use, including information on computer bulletin boards, some articles on recent legislation including Pennsylvania's Stalker Law and the Family Leave Act, and a couple of articles dealing with the recent changes in the federal rules of evidence.

In our next issue, Juris will be sponsoring a Duquesne Law School shirt and sweatshirt sale to the alumni and students.

(Cheap plug).

So pop the top off your favorite beer or uncork your most palatable chardonney and enjoy our first issue of the 27th Volume of Juris. After all , that's the way it's meant to be read.

nu DUQU(SNE LAW SCHOOL NEWS MAGAZINE

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departments Up Front

2

On Campus

4

Alumni News

6

Recent Decisions

째'';A~

At the Sidebar

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25, 34

Editor-in-Chief

P.S. Here's to next summer's most popular television commercial. The one that features your favorite New York ad agency executive facing an IRS audit with a voice-over proclaiming: "His deodorant has to be strong since he can't find a tax attorney to represent him."

on our cover The changing game of organ acquisition and dispersement policies spurred by the recent debate over Pennsylvania Governor Casey's heart and liver transplants is explored on page 18. Thanks to Don Frederickson for donating a spare rib.

(Photo by MARTIN EGNA.)

Juris is a student publication of the Duquesne University School of Law. Views and opinions expressed herein are not necessarily those of Juris or of Duquesne University. Juris, 900 Locust St., Pittsburgh, Pennsylvania 15282 Tel. (412) 396-6305.

Copyright 1993 Duquesne University.

Juris is printed on recycled paper.

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Juris

contents

7

Portrait of a Daydream, by Judge Timothy K. Lewis

MEET THE DEANS

In Touch with Dean Rago, by Christy Fedigan

10 12 13

For Better or For Worse, by Jacqueline 0. Brooks

14

Caution: Brain at Rest, by Jayme Deibler

16 16 17 18 21 22

In Step With Dean Cafardi, by Michael Stephan In Sync with Dean Sekula, by Jim Tone

A Most Excellent Opinion Welcome to the Family Uncle Sam, by Glenn E. Camus If I Need A Liver, Should I Run for Office? by Lisa DiCerbo Judges Don Lab Coats, by Ken McKay The Cost of Signing the Dotted Line, by J. W. Bonie

30 32

Stalkers in the Night, by Terri L. Taylor Tomorrow's Town Square, by Warren Haines

Editor-in-Chief Amy F. Haduch

Production Editor Martin R. Egna

Senior Editor Sally R. Miller

Articles Editors Glenn E. Camu s M .J. Charbonnier Michael Zimecki

Recent Decisions Susan Gaetano Steve Wirth

Copy Editors Margo Carter William Gagliardino Alice Rudolph Renee Solomon

Staff Editors Bart Bodkin Renee Eisenberg Joseph Koscinski Paul Oven Elizabeth Reiter Mark Skolnicki Faith Slampak Cindy L. Smith Jennifer Swistak Jim Tone

Front Line Editors Beverly Bertin Colleen Finnegan Susan Fix Beat Editors Tom Isenberg Jamie Aul Jeff Kubay Holly Brent Monique Moye Carol M . Gusherowski Kim Pharr

Fall • 1993

Writers Jacqueline 0 . Brooks Jayme Deibler Lisa Dicerbo Cristy Fedigan Donald Fredrickson Warren Haines Steve McClintock Ken McKay James M. Rarick Mike Stephan Terri L. Taylor Jerry Yanity

Contributors J.W. Bonie Judge Timothy K. Lewis C. J. Rapp

Managing Editor Joanne E. Cohen

Assistant Production Editor D'Angela Steed

Assistant Managing Editor Michele E. McNamara

Layout Editor Stacy Tees

Business Staff Patricia Barnett Aaron Deluca Mary Lou Hizney Patrick Lawlor

Graphics Editor Lisa Graniero Photography Editor Dale Provins Artist Aaron Lyons Photographers Michael Fiorentino Alan Hader Laura Schaffron Production Assistant Joe Toczydlowski

Student Organizations Coordinator Jan Daschbach

Faculty Advisors Dean Raymond F. Sekula Professor Patrick J. Basia!

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Orientation Deemed Success

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ii: The Atar-Krupskis enjoy a beautiful afternoon at the orientation cookout. Counterclockwise from right: Iris, 2E, Carol, and their son Yoni.

The orientation program spon sored

by Duquesne University in conjunction with the Student Bar Association was held Tuesday, Sept. 7, and Satu rday, Sept. 11.

Incoming students, returning students and faculty members all spoke highly of the event.

The orientation events included a sit-down dinner in the Duquesne Student Union on Tuesday, Sept. 7. Prior to the dinner, the incoming students were given the opportunity to socialize with one another, as well as with student organization leaders and Law School faculty. President John Murray addressed the incoming students and advised them of the secrets

to success in law school. New students were advised to be tenacious, prepared, and to adhere to the highest standards of integrity. President Murray also advised that prayer helps as well. The evening was most enjoyable for all.

The second segment of orientation was held Saturday, Sept. 11. The new students attended lectures by Professor Mark D. Yochum and Professor Kellen McClendon, which dealt with the fundamentals of the law school experience and gave a brief overview of what to expect in class.

After the lectures, the incoming students headed to a cookout at Mellon Hall where they were greeted by their "mentors." Serving as mentors were upper-class students who had agreed to volunteer

a

JAMI E AUL

Mentor Colleen Finnegan, 3E, and Dave Grecco, 1E, get acquainted during orientation cookout.

SBA Sponsors "Meet the Deans" The SBA recently sponsored two Deans' assemblies where students were given the opportunity to ask the new administration questions regarding its policies. Assistant Dean John Rago informed t he students as to the changes he is implementing in the Career Services Department. These changes include but are not limited to expanding the number of law firms invited to interview on 路campus, see king non-local firms, and increasing alumni involvement.

Associate Dean Raymond Sekula addressed students ' concerns ranging from the selection of elective courses to parking problems. He discussed possible alternatives to the concerns expressed by the students and stressed his dedication to

their time (and sometimes their outlines as well!) to assist the incoming students with any questions, to assuage any apprehensions, and to provide support throughout the crucial first year of law school.

Immediately following the cookout, upper-class SBA members were available for a brief, informal question and answer session. The incoming students welcomed the chance to ask questions on topics unrelated to the formal study of law, such as the availability of University exercise facilities and the posting of grades.

Kudos to the orientation committee, namely, Professor Mcclendon, Carol Gusherowski and Renee Eisenberg, for a job well done!

dealing with various issues.

Dean Nicholas Cafardi discu ssed a number of issues affecting law students.

Many students were concerned with the results of last year's ABA review. Dean Cafardi reported that the findings were good; however, there are areas of the law school that need to be addressed, including possibly reducing the number of required courses at Duquesne. Finally, Dean Cafardi indicated that the yearly student surveys conducted will be used by his administration to determine such things as tenure and possibly the courses offered by the various professors.

DONALD FREDERICKSON

ABA .Accredits Duquesne The Duquesne Law School received ABA accreditation. After a year of preparation , com mittees, and review by the ABA, the Law School was deemed to be in compliance with ABA standards and was re-accredited . Because the law school releases only results, more specific information is unavailable.

Juris Takes 2d Juris was awarded second place in

the 1992-93 ABA Law School Division newspaper contest. The award was for the catagory of " Entire Magazine." Thank you to all who contributed to that success.

Juris

ABA/LSD Launches Outreach Programs The American Bar Association Law Student Division held its annual meeting in New York City in August. The highlight of the meeting revolved around three projects that the Law Student Division took an active interest in supporting this year.

Together with the Young Lawyers Division, the Law Student Division cosponsored a series of three public service announcements (PSAs) focused on preventing hate crimes. The PSAs were previewed at the annual meeting. A series of photographs of children engaged in play activities were presented while a narrator discussed hate crimes in the background . Both Divisions are proud of the work that went into creating the PSAs and the great reception they have received from the media. Press kits are available for dissemination from the central ABA office in Chicago.

The Law Student Division also unveiled their Outreach Assistance Initiative (OAI) booklets . These booklets are designed to assist law schools in implementing public service programs on their campuses. Each booklet provides a step by step guide for replicating an existing program . The information is com-

Parker, Woodhouse Honored

University President John E. Murray, Jr. speaks to soon to be graduates.

The 1993 Senior Dinner and Awards Banquet was held at the LeMont Restaurant on Mount Washington . In a not-toocommon event, two graduates received the Distinguished Student Award. Brian Parker and Sammuel S. Woodhouse were honored upon recommendation of the faculty for the outstanding service, honor and scholarly distinction they brought to the Law School without expectation of personal recognition.

Fall• 1993

prehensive enough so an individual school can modify the suggested format to meet their own student body requirements. Some of the OAI topics currently available include student-attorney mentor program, work-a-day, improper interviewing questions, in-house childcare programs, speakers bureau, resume clearinghouse, Volunteer Income Tax Assistance, law students for literacy, and professionalism and ethics. Many of these projects were initiated and are jointly sponsored by the Young Lawyers Division.

There is financial assistance for interested law schools to cover the start-up costs of a particular program.

The Law Student Division announced the first international internships. Together with the Association Internationale Des Jeunes Avocats (International Association of Young Lawyers), American law students can apply to work in European law firms during the summer of 1994. Each internship lasts approximately eight weeks and students will receive a small stipend to cover their living costs.

Those students who are interested must apply by Oct. 15, to the Law Student Office in Chicago. The most promising applicants will be forwarded to the AIJA for final

placement. This is a fantastic opportunity for law students interested in working with European attorneys.

In addition, law students from around the country gathered to discuss topics of concern to both law students and recent law school graduates. Each school in attendance voted on resolutions brought before the delegate body. Resolutions covered topics such as the national service legislation, policies against sexual harassment, on-campus recruiting, writing requirements, discrimination in bar admission requirements, and direct student loans.

The three major projects that were previewed at the annual meeting reflect the commitment of law students working together to provide greater opportunities for themselves while contributing time and energies to public service programs.

These programs demonstrate the initiative taken by students to reach out to their communities and begin to build strong relationships, the roots of which they can foster after graduation. This commitment should be commended and supported by law students, law schools and attorneys everywhere.

JOANNE E. COHEN

Judge Lewis Addresses Grads; Sciullo Named 1st Dean Emeritus The keynote speaker at the 1993 graduation was Judge Timothy K. Lewis, the youngest federal judge ever to be appointed to the United States District Court for Western Pennsylvania, and then to the United States Court of Appeals for the Third Circuit. His commencement speech

address received the highest praise from President John E. Murray, Jr. and is reprinted in this issue on page 7.

Also at graduation, the title Dean Emeritus was awarded to Dean John J. Sciullo by President Murray. Dean Sciullo is the first dean to receive such an honor in the history of the Law School.

1992-93 SBA President Brian Parker speaks to fellow graduates at graduation ceremony. To the right of Mr. Parker, Dean Sciullo and Judge Lewis look on.

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Judge Timothy K. Lewis On June 13, Judge Timothy K. Lewis of the U.S. Court of Appeals for the Third Circuit delivered the commencement address to the Duquesne University Law School's 1993 graduating class. Judge Lewis fou nd himself on familiar ground si nce although he is a graduate of Tufts University, he received his JD from the School of Law at Duquesne.

Judge Lewis began hi s di stingui shed career first as a state and then as a federal prosecutor. He se rved as an As sistant Di strict Attorney in Allegheny County, where he prosecuted a wide variety of criminal cases. Subsequently, he served as an Ass istant U.S. Attorney, focusing primarily on

white-collar and financial cri mes.

OnJuly1, 1992,attheageof36, Timothy K. Lewis was appointed by President Bush as a U.S. District Court Judge for the Weste rn Di strict of Penn sylvania. On Oct. 23, 1992, only 15 month s later, President Bush then elevated Judge Lewis to the U.S. Court of Appeals for t he Third Circuit.

Judge Lewis was the youngest federal judge in the United States at the time of both of these appointments.

Over the years, Judge Lewis has served on the boards of various non-profit organizations in the Pittsburgh area. Additionally, he is a member of the Allegheny County, Pennsylvania, Ameri can and Na-

tional Bar Associations. Judge Lewis also serves on the Board of Visitors of the University of Chicago School of Law and is an associate member of the Joint Center for Political and Economic Studies in Washington, D.C. Judge Lewis is a life-long resident of Pittsburgh, where his family has resided since t he early 1800s. He and hi s wife Elizabeth, a mental health co nsultant, are the proud parents of a daughter, Margot, and a son, Eric.

The focal point of Judge Lewi s' speec h is a sto ry in which he relates one young law student's graduation experience which we now print with hi s permission.

FAITH SLAMPAK, second year day

Joy Flowers Conti Boosting public confidence in the judicial system is a personal and professional goal of Joy Flowers Conti, current president of the Allegheny County Bar Association (ACBA) and a distinguished grad uate of bot h Duquesne University and its Schoo l of Law. Conti as head of the ACBA pu shed fo r voter support of last spring's successful primary referendum on tighter policing of state j udges. That referendum called for a two-tiered system open to the public in which the Supreme Court would not sit in judgment of one of its members.

"We are all aware of the problems with the Supreme Court these past few years. Maybe in a true sense justice is done, but t he public doesn't see it that way," she said. " We are concerned about public perception-who's right and who's wrong with respect to the current dispute that's going on w ith the court is not the issue-it was the fact that the very people who are being scrutinized were the ones who were doing the revi ewing process them selves." she added .

Conti emphasized, however, that the ACBA has no opinion on the current controversy, only on its method of resolution. " We are not a fact-gathering body, or a disci plinary body. Our position is, let the process work. We urge cooperation ."

Conti and the ACBA also support

II

merit selection of appellate judges as a means to instill confidence in the judicial system. The current system, Conti believes, results in judges being elected because of clever advertising. " The natu.re of the political system today is that you don't get to see the backgrounds of the candidates; whether they have judicial temperament, their level of experience."

Under a system favored by the bar association, judic:ial candidates would be screened by a committee consisting of at least half non-lawyers. Recommendation s would then be made to the governor, with approval followed by the legislature. " It's still a political system, but what you have are standard criteria, and a determination by the committee that the candidates have met the minimum threshold level," Conti said.

She added that after initial merit

selection, the public would directly vote for retention , thus not losi ng its vote completely.

In addition to her activity with the county bar, Conti is active with both the state and national organizations because she says it's a way to have an impact on the legal profession . She became involved immediately after graduation and was the first woman chairperson of the Young Lawyer's Section of the ACBA. A native of the Pittsburgh region whose father was in the military, Conti was educated overseas. She came to Duquesne becau se it was in Pittsburgh, and because a high school guidance counselor told her the university "had those Tamburitzens."

She was apolitical science major on partial scholarship during her undergraduate years, and was a varsity cheerleader during the era when the basketball team was nationally known.

At the law school, Conti was one of only seven women in her day-division class.

She went on to be editor-in-chief of Law Review and a national appellate moot court winner. Upon graduation she clerked for Justice Mandarino, and then joined the Pittsburgh law firm of Kirkpatrick & Lockhart for two years. Conti became a tenured professor at Duquesne and taught corporations. She rejoined Kirkpatrick & Lockhart in 1982 and is a partner whose area of interests are corporations and bankruptcy.

She is also the mother of three sons and serves on the board of Catholic Charities.

SALLY MILLER, fourth year evening

Juris

Portrait of a Daydream of law had left him with far more questions than answers. And because of the unending stream of questions that his studies had placed in his mind, he had developed a strange practice, indeed; for instead of answering his professors questions on final exams, Blexis would ask questions. As a result, the possibility of law review was a distant memory. The professors, of course, were amused by Blexis' unu sual penchant and even looked forward to being asked questions they had no intention of answering. But they could not reward him with any better than a low-B grade point average.

Judge Lewis, Third Circuit Court of Appeals, delivered the following commencement address to the Class of 1993.

Once upon a time there was a soonto-be law school graduate by the name ofBlexis. His parents named him Blexis because they realized he would probably want to become a lawyer and they thought that "Bwest-law" sounded a bit pretentious. Blexis was pleased to be done with the long hours of arduous study and the endless and vain search forthe right answer in any of Professor Murphy's courses. He was poised, finally, to receive his diploma and begin a life of applying the theoretical underpinnings that make law schools the places of intellectual discipline they are to real life clients and real life problems.

All that stood between the past and the future, it seemed, was the final, traditional requirement of maintaining a stoic silence during the commencement speaker's soon-to-be forgotten address, and gathering the presence of mind actually to walk up and, in a dignified manner, receive his laurel crown.

Now, Blexis had been anything but an ordinary law student. Bright, energetic and cheerful, to be sure, Blexis had performed well enough in law school to earn the esteem of his classmates and the admiration of his professors. His answers revealed his meticulous preparation for each day's lectures, and his erudite manner and inquisitive nature instilled in all a confidence that he would, indeed, make a distinguished name at the bar.

But Blexis, himself, was not so sure.

And his uncertainty emanated from his grades, for when he would put aside his casebooks and his notes and his Gilberts and Nutshells, he would find that the study

Fall• 1993

In the end, though, Blexis had performed well enough to receive his jurisdoctor. And so, there he sat, with cap and gown, a bit uncertain as to what his future held, relieved to be among the distinguished throng and, as always, brimming with so many yet unanswered questions as to the meaning of the law in today's society and his destiny in both .

And as he sat and listened, he mused.

Tired already of the long-winded commencement speech, he closed his eyes and mused some more. His were not the usual thoughts of satisfaction and accomplishment and the champagne and high-fives that would soon follow, though; instead, he thought of the venerable old admiral and war hero who had been tapped by Ross Perot to be his running mate and who, in his opening statement in a vice presidential debate, had taken a page from Blexis' book by posing a question to his interlocutors when he asked: " Who am I, and why am I here? '; Why had the old admiral been ¡chastised in the media for asking the ultimate relevant question, Blexis asked himself? Why, I've been asking myself that question for three years and as I sit here now, the uncertainty lingers.

And with his eyes closed and his cap still balanced awkwardly atop his head, he began to dream . And suddenly, there appeared in Blexis' dream three figures. They were seated at the end of a long mahogany conference table in a room with no windows; a room which nonetheless glowed with a light so bright Blexis could barely open his eyes. The three bore a slight resemblance to some portraits and photographs he had seen before in law school, when he stopped reading books with portraits and photographs. He immediately sensed that they were either reporters or lawyers, for they each wore glasses, had

thinning hair, looked somewhat disheveled and were engrossed in serious debate over the President's choice to fill the most recent Supreme Court vacancy.

After a while, the di scussion calmed and they fixed their eyes upon Blexis. He waited for a sign that it was alright to pose a question, but before he could utter a word, the one seated in the middle, at the head of the table, spoke. This man appeared well over six feet tall, lanky but not thin, had reddish brown hair combed loosely over the forehead and tied behind .

He had expressive hazel-blue eyes, a broad face with high cheekbones and a long, straight nose. Hi s attire was careless but fastidious enough, although Blexis had never seen anyone wear such clothes.

As a peacemaker, the lawyer has a superioropporlunity of being a good person.

"Young man," he began, " you seem a bit troubled by your experience and performance over the past few years of law school. Before you set out to pursue your practice, we have convened to offer you a glimpse of what should be your destiny. It is only fitting that we do so since, after all, we have wrought much of what concerns you now. Fear not that you have tuned out your commencement speaker and find yourself in our presence now, for if your law school dean student committee could have brought us to speak, I assure you, my young friend, they most certainly would have done so. This, then, is your com mencement address."

Blexis swallowed hard, but his throat was bone dry, for he suddenly recognized the speaker, and he was frozen. The old man continued.

d

. your studies should not be so much an apprenticeship for law as an apprenticeship for greatness.

"When I began my legal studies, the legal profession did not enjoy a high public reputation . We had no formalized instruction in a law school; our way to the bar was through an apprenticeship . And, of course, one had to choose a mentor. My mentor and teacher was George Wythe of Virginia. My apprenticeship with him lasted a full five years. Why, my dear colleague, John Adams, studied with Wythe for two years and John Marshall for only three months. Undoubtedly, had Marshall studied longer he would never have rendered that horrible decision in Marbury v.

Madison , but, what's done is done. Patrick Henry studied only six weeks but went on to become the truly outstanding trial lawyer in the Colony." " My point, young man, is that the questions you have been asking must continue, for if you are to make a contribution to your society and to your profession, you must never indulge the fanciful notion that your education is complete-even as you receiveyourdiploma today. A lawyer's education is never complete." " I do not suggestthat you follow my rigorous schedule to the fullest, for the world has changed since I practiced law; but I do implore you to augment your law practice with a continuing quest for the knowledge of man and man's knowledge of himself. To do this, you must read more-much more-than the law. Read politics; read history. Study ethics, both your own and the code adopted for your practice. Read criticism, oratory; read the best of the poets, but among these Shakespeare must be singled out by anyone who wishes to learn the full powers of the English language, for as a lawyer, you must pay great attention to the elegance and correctness of your language. Read the orations of Demosthenes and Cicero; analyze these orations. And listen well to all." Blexis gaped, mouth wide open . "Demosthenes and Cicero?" He wondered. "Will they be on the bar exam?"

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" Young man," the old man continued, " your apprenticeship - your studies-should not be so much an apprenticeship for law as an apprenticeship for greatness. One never knows what direction one's career might take at any given moment. A little less than two years after I left practice of law at age 31, I found myself sitting in a rooming house at the corner of Seventh and Market streets in Philadelphia setting out on paper much of what I had learned in my legal srudies and through my questions about society, and the result, of course, was the Declaration of Independence. When I wrote that we pledged our lives, our fortunes and our sacred honor to that document, I was speaking to values and principles that are transcendent, and even today, a lawyer would do well to adhere to his or her approach to the practice.

You see, in every lawyer worthy of the profession, there burns an ambition to help ensure that the profession will be stronger by virtue of his or her participation in it, and to help improve upon the law as an instrument of human justice. Your charge today, my young friend, is to realize this desire and to grasp it with furious energy."

The old man leaned back in his chair and, with a faint smile, turned his head and nodded toward the man seated to his right.

This was a tall , homely man who appeared at first to be asleep. He slowly removed his glasses and rubbed his eyes. He stroked his beard as he shifted uncomfortably in his chair and redistributed his large body. Blexis could not speak; he did not need to.

"Young Blexis," he began, "I was admitted to the Illinois bar when I was about your age and I didn't know anything, except that I wanted to do some good."

"My advice to you is based on what I tried to do then and what I had to do much later in my life, after I had given up the practice of law in favor of national politics: discourage disputes! Discourage litigation. Try to persuade your clients to settle their differences and to compromise. For one th ing, that'll give federal appellate judges less to worry about. Point out to your clients how the nominal winner is often the real loser - in fees, expenses and waste of time.

As a peacemaker, the lawyer has a superior opportunity of being a good person.And that, in part is your goal."

"They say that simplicity was a part of my art, and that may be so.Try to avoid the young lawyer's trap of using all those big legal words. Never use two words where one will do. Don't argue points that are unessential. In law, it is good policy never to

plead what you need not less you oblige yourself to prove what you cannot. Just be logical and concise so everybody understands what you mean."

"Most important, young Blexis, be honest. People used to refer to me as ' honest' before they'd even get to my first name, and I' m proud of that even now.

There has always been a vague popular belief that lawyers are necessarily dishonest.

I say vague because when one con siders to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears that their impression of dishonesty is very distinct and vivid . Yet, the impression is common, almost universal. Let no young person choosing the law for a calling for a moment yield to the popular belief-resolve to be honest at all events; and if in your judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. " "That, young Blexis, is who you are trying to be and why you are here today. "

... it was the law that enslaved us and it was the law that made us free.

With that, the tall bearded man once again shifted his large frame and nodded his head toward the large, dark man seated across the table.

This man began with a question, " Do you want to practice law, Mr. Blexis, or do you want to live the law? Your professors have been asking you questions and you have been asking questions back. You may not have understood, but in doing so you have been questioning yourself and your values, and those of your society. That is why we are here. That is how we lived the law; we think that is your direction. " "The law," the man continued, " is about values. Sometimes these values become misplaced. That is why you must continue to question. You mu st always remember, Mr. Blexis, thatfor many of your colleagues and fellow citizens, it was the law that enslaved us and it was the law that made us free."

"I was born in America where Plessy v. Ferguson, the most wretched decision ever rendered against black people, and in a larger sense, against basic principles of equality, was the law of the land. I began my

Juris

law practice in a segregated society. But I continued to question. When I argued the case of Brown v. Board of Education, the case that made the 14th Amendment viable for all Americans, I had to understand the values that form the law to co nvince the Supreme Court to change the law. And even with that change, for women , for blacks, for all of us, there remained a need to question. There would not be a Sandra Day O'Connor, a Colin Powell , a Janet Reno, without the continuing reassessment of our values. We, as lawyers, no matter what type of law we practice teach or interpret, must find a scope and meaning in our work that enables us to further the cause of justice. And if I may serve as an example to you , Blexis, let it be this: a lawyer's life experience-even the experience of cruel injustice-can be communicated and can produce wisdom. Go out and learn more about life, and bring what you learn with you to court."

The man continued. " In my last few years on the Court, Blexis, I became a frequent, almost chronic, dissenter. But I continued to dissent because of my belief in the power of the law to help make us ajustand equal society, and my fear of the abuse of that power. And this brings me to my final piece of advice to you on this glorious occasion. Revel in your accomplishment. You have worked hard and you have paid your dues, and the degree you will receive today, young man, is something to be proud of.

But it is also something you should receive with humility. You must understand the power that is placed in your hands, and beware of arrogance. You will now have the

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power to draw a contract, to take away someone's wealth or perhaps even their freedom . You have the power to utter certain words that are almost an incantation that make certain things happen; that unlock doors to business and government.

Consider the diploma you will receive today a certificate of competence, enabling you to do the work of a lawyer, but also to serve as an educator and missionary to the public." " You cannot become cynical, for you are a part of the public. And no matter what pathway you take from here, you wou Id do well to devote some portion of your professional life to the public." And with a twinkle in his eye, and in characteristic humor, the old man leaned forward and added, " If you really are self-abusive, Blexis, you will become a judge or a justice."

And with that, the three men stood up and the room darkened. But not before he heard one of the voices utter words he could barely make out as they faded into the distance. "Congratulations, Blexis. You made it. You're on you way. Do us proud, that we may save a seat for you here in our pantheon someday .. ."

And with the third elbow to the ribs and the second time his name was called, Blexis awakened, and he was indeed, as is the Class of 1993, on his way.

JUDGE TIMOTHY K. LEWIS,

U.S. Court of Appeals, Third Circuit

Fall• 1993

II

In Step With Dean Cafardi Nicholas P. Cafardi is excited about his new job.

And why not? As dean of the law school since July, he has set out for himself a challenging three-year tenure to make the Duquesne University School of Law one of the best in the nation.

But, he's starting out with smaller steps: establishing his own rapport with students, faculty and community by being a good listener and being available to those constituencies. " I want the law school to become better before it becomes bigger," Cafardi says. " Not to criticize previous efforts, but you can look at anything with a fresh pair of eyes and make it better. Once things are better, we'll think about getting bigger."

Part of getting better is paying attention to what law students want in their education. Cafardi says he plans to work closely with the student bar in making any changes in the law school. " I expect to hold regularly scheduled meetings to address student concerns quickly. You keep problems small by jumping on them right away. We will work to make things better; that will make us bigger and I think we will receive recognition for what we are doing."

Cafardi says he is going to pay particularly close attention to what the law school's evening students are saying. " They have been through significant work experience. We need to pay attention to their perceptions about their education."

Cafardi sees the roots of his challenge stretching back to 1988, when he came to Duquesne as the university's general counsel.

That was a time, according to Cafardi, when Duquesne faced a series of problems: decreased enrollment; student unrest; faculty dissatisfaction; and public criticism in the media. " Coming to Duquesne was a professional risk. But it was the right thing to do."

Cafardi says he feels particularly confident with John Murray in the president's office.

"I know that he is capable of accomplishing incredible things," Cafardi said of

Murray, under whom Cafardi had served as assistant dean at the University of Pittsburgh School of Law for four years.

"I also know that Duquesne is a fantastic asset to the community. An immense wellspring of affection in Pittsburgh exists for this place. People feel good about Duquesne. They want it to succeed."

For Cafardi to succeed as the law school's leader, he had to climb over his own fears about the job.

"My experience in law school administration at the University of Pittsburgh provided me with a solid background , so I wasn't scared about having a lack of experience in administration.

"However, I was a bit worried that I wasn't a great legal scholar, and I feel that sometimes dean s should be great scholars."

Cafardi isn't exactly new to administrative duties.

As assistant dean at the University of Pittsburgh School of Law, he managed a multimillion dollar budget. As general counsel for Duquesne University, he

reduced legal bills by 90 percent. H is secret: " Proper management, that's all."

Beyond the law school's own successes, Cafardi sees Pittsburgh's burgeoning health care industry as ripe for inclusion somewhere in the law school curriculum . " We live in the center of one of the biggest health care delivery systems in the country. We have one course in hospital law. We could do more in that area."

Cafardi 's interest in European lawhe once thought of practici ng law in Rome-may lead to a course in European economic law.

"I also would like to see more computer-centered learning. I would like us to focus more o n practical skills. I don 't know that we do anywhere near enough legal writing."

Cafardi's scanning of the horizon shows other, mo re advertureso me academic moves.

He sees a possi ble summer school program with the China University of Political Science and Law in Beijing.

"That is a fantastic opportunity.

There's no doubt in my mind that if we are the only American law school with a program in Beijing and if we link up with the University of Political Science and Law, the only law school in Beijing, Duquesne would receive increased attention, increased publicity, and more people would understand our capabilities. " Rome one day may be a summer school venue for Duquesne students, according to Cafard i's dream. Cafardi, hi s wife, Kathleen Shepard, a pediatrician, and their sons, Nico and Chris spent a year in Rome in 1985 while Cafardi pursued his degree in canon law . " Right now Loyola and Temple conduct program s in Rome. I' m not sure the city can stand a third American summer program . But I think that this program is down the road, and I have the connections."

But for now, Cafardi is trying to settle into his new role. And with an important part of that role being a close connection to law school students, Cafardi plans to take on a half teaching load .

Students will see him in classes for Tax Exempt Organizations and Canon Law.

Juris

He's also thinking of offering a course in European Community Law. Helping students land jobs also is h igh on Cafardi 's list of priorities .

He points to hi s appointment of John Rago as assistant dean to manage the Career Services Office as a sign of this emphasis. " I appointed (Rago) to the Career Services Office because of the importance of having a lawyer. " I was concern ed about havi ng somebody who knows the Pittsburgh legal commun ity, who had found his own job and who knew what the process was like. I also wanted that person to be a recent graduate of the school. John Rago fills all of these credentials. " John is the kind of person who will be o n t he telephone making calls on behalf of students. The job requires somebody who has been through the mill themselves. W e need the caree r office to t hink about new things to help our students find jobs."

With t he United States having hal f of all the lawyers in the world, are Duquesne and other law schools simply adding to the overcrowding at t he bar?

Cafardi doesn 't think so.

"The fact of the matter is we have the freest society on earth and despite our economic difficulties we have one of the stronger economies in the world. I think lawyers make us a freer society.

"Focusi ng on the attorneys who don 't positively contribute to our society is an improper characterization, and lawyers do not fig ht back enough.

"The best way to counter that image is to be t he best lawyer you can be. Let the people w ith whom you come in contact know t hat people with integrity practice

Focusing on the attorneys who don't positively contribute to our society is an improper characterization.

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Fall路 1993

law who aren't out for the quick dollar, who aren 't out to make the lives of others difficult by meeting their client's need for revenge.

"After eighteen years in Pittsburgh, I have observed that most lawyers don 't come near that characterization. I don 't think I've met more than two or three lawyers in that category. Law school by itself cannot change that image. Lawyers individually can change the image. " Although a few lawyers may practice unethically, Duquesne lawyers have earned respect. That is one reason why people want Duquesne to succeed.

"We are not a factory that produces only lawyers; in fact some students come to school without any intention of being a lawyer.

"Other law schools do not offer courses in Philosophy of Law, Canon Law, Law and Religion, Jewish Law, and Ethics.

Not all these courses are required, but we offer students the opportunity to take these courses. This is one reason why the community wants us to succeed."

Cafardi himself has an active practice of law. He's doing work for the Archdiocese of New Orleans; the Sisters of Mercy of Erie; the Holy Cross Sisters from st . Mary's College in Notre Dame; the Holy Ghost Fathers; and the Vincentian Sisters.

He's also chairman of the board of the Vincentian Nursing Home and is the

lawyer for the Divine Redeemer Sisters of Elizabeth, Pa. Cafardi also volunteers in community service.

He is a member of three professional societies, and is the founding member of the Allegheny County Bar Association's Section on Tax Exempt Organizations.

He has been honored by the Board of Governors of the Cannon Law Society路 of America and has been elected to the Century Club of Distinguished Duquesne University Alumni.

Teaching law and administering a law school don 't consume all of Cafardi 's time. He recently has taken up golf-" I've played only 3 games so far and I've yet to break 100" -and he makes sure to exercise regularly.

"Exercise is a great way to work off tension and helps me handle stress much better."

Some of that stress surely will come from the seemingly never-ending line of questions that need answers. And Cafardi says he is ready for the challenge.

"People will have an opportunity to meet with me and express their problems, but I will make the decisions." " The daily problems are my job. If I am going to be remembered for anything, I want it to be that people find me to be available, that I listened, and that I was fair."

MICHAEL STEPHAN, third year evening

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In Sync With Dean Sekula There is a preponderance of evidence to support a presumption that a transformation has happened at the Law School. Professor Raymond F. Sekula's new office on the second floor of the law building permits an inference of such a change to be drawn. Direct evidence of such change is evident by his recent appointment as associate dean. This change punctuates a 26 year career at the school in which Dean Sekula has taught a variety of subjects, including evidence and tax.

Although Dean Sekula is primarily known to present students as a professor of Evidence, it was the subject of taxation that initially inspired him to enter the legal profession. He developed this interest during his undergraduate studies at Duquesne University as an accounting major.

Shortly thereafter, he entered Duquesne Law School and was soon entertaining thoughts of becoming a teacher.

This notion took shape when he accepted an instructorship at the University of Virginia Law School upon completion of his legal studies. He headed the Legal Process and Research course at Virginia for two years and earned an L.L.M. degree in taxation before returning to Pittsburgh in 1996. After practicing law at a number of firms in the area, in 1968, Dean Sekula accepted a faculty position at Duquesne Law School.

One might wonder what the function of an associate dean is. Dean Sekula defined his new role in essentially one line. He is "to implement the policies of the dean and faculty in the realm of aca-

demic affairs." He stressed that the position does not encompass any policymaking powers, but instead concentrates on providing assistance to faculty and the dean .

In addition to discussing his legal background and current status at Duquesne, Dean Sekula also made general observations with respect to the evolution of the legal profession. When asked about the present condition of the legal profession, Dean Sekula remarked that the legal profession has changed significantly over the past three decades. Prior to the Vietnam War, law students' expectations were geared toward independence. During the 1970s, the emergence of high salaries by the large corporate law firms shifted these expectations by enticing prospective lawyers to become employees. While not being critical of this transformation, Dean Sekula promotes private practice as a highly fulfilling experience and encourages students to consider such a career.

It is obvious that Dean Sekula brings to his new position an understanding and perspective that goes far beyond the Federal Rules of Evidence. As a diversified professor who has experience in the practice of law, Dean Sekula was undoubtedly a fitting selection for associate dean.

Although one may conclude that the aforementioned statements are hearsay, being introduced for the truth of the assertion, there is definitely an exception when it comes to Dean Sekula.

JIM TONE,

third year evening

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In Touch With Dean Rago The recent changing of the guard at the Law School returned john T. Rago to Duquesne University as the newly appointed Assistant Dean . He brings with him many fresh and innovative ideas gained from his years of experience in the public and private sectors.

Dean Rago graduated from Duquesne University in 1979 and later attended Duquesne's Law School where he was the editor of JURIS. Dean Rago was influenced to pursue a career in the law by his friendships with various faculty members here at Duquesne, along with his desire to provide services to people. After graduating from the Law School in 1987, Dean Rago clerked for several judges and was involved in private practice. Dean Rago feels that his federal clerkship was his most rewarding working experience.

Dean Rago's wife, Ann, is the Executive Director for Public Affairs here at Duquesne. The Ragos have a daughter, Annie J., who is three years old . Along with spending time with his family, Dean Rago enjoys yard work and is actively involved in an organization called the Foundation for Performing Arts Education. As the only American member of the Board of Directors, Dean Rago, with a little help from his wife, once had the opportunity to interview Paul McCartney. The Ragos and the former Beatie have kept in touch over the years.

Dean Rago returned to Duquesne University as the Assistant Dean of the Law School because he felt it was a wonderful opportunity. As the Assistant Dean , one of his primary responsibilities will be to

improve the services offered by the Career Services Office. Among these changes, the dean wishes to increase the involvement of the faculty, upgrade library resources, and utilize Duquesne Law Alumni as invaluable sources of information for students. The new dean encourages students to share their ideas in any of these areas, including making the library more complete by requesting resources that the library may not yet have on its shelves.

Dean Rago plans to make other changes as well. To insure all students know where the Career Services Office is located, new signs will direct students and alumni to the office so they can easily use its services. Also, every student will receive a new Career Services Handbook, which will disseminate helpful employment information. Perhaps more importantly, during the fall recruiting season, students' resumes will no longer be screened by the Career Services Office nor will the office run a lottery system for fall interviews. Instead, the office will give a copy of all submitted resumes to an employer. Thus, each employer will ultimately decide who they would like to interview based on the resumes submitted. Finally, Dean Rago encourages students to be confident, take advantage of the opportunities and options that are open to them and realize that a law degree is versatile.

We welcome Dean Rago back to Duquesne and wish him the best of luck and success.

CHRISTY FEDIGAN,

third year day

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For Better or for Worse Rape is by far the most frightening, horrifying, and afflicting ordeal women may experience. The effects of rape are both devastating and everlasting. The effects are intensified when a woman is raped by someone she knows. Perhaps the ultimate betrayal occurs when a woman is raped by her husband.

Abigale Andrews Tierney stated that when a woman has been ultimately violated by a person who is supposed to love and protect her, it can destroy her capacity for intimacy with someone else.

Moreover, many wife victims may be trapped in a reign of terror - experiencing repeated sexual assaults over a period of years. When a woman is raped by a stranger, she has to live with a frightening memory. But when a woman is raped by her husband, she has to live with a rapist. 1 Marital rape is unusually disturbing. Traditionally most people think of rape as involving a stranger hiding in the bushes waiting to attack a "would be" victim at random. However, fourteen percent of all married women are victims of marital rape. Most marital rapes go unreported due to fear, intimidation, retaliation, and disbelief, therefore, the figures are much higher. Based on the aforesaid, it is obvious this is a very serious problem that needs immediate attention.

the traditional notions of the role of married women and the purposes behind the enactment of rape laws. Rape laws were developed at a time when women were considered chattel of their father or husband. Accordingly, the rape laws were developed to insure a wife's value as a sex object for her husband. 4 Therefore, a husband forcing sex on his wife was merely making use of his own property.5 The rape laws were viewed as protection of male property.

Theories of Hale Marital rape is as old as marriage itself. Recognition of the rape exemption dates back to the 17th Century. Lord Matthew Hale wrote: ''The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.2 Lord Hale's words laid the foundation for the husband's immunity from prosecution and became judicially recognized in the United States in 1857 in Commonwealth v.

Fogarty. 3 In this Massachusetts case, a husband was granted immunity from prosecution for the rape of his wife because she was considered his property.

Lord Hale's writing became the most frequently cited source for a husband's immunity in the United States and in England. His writings were supported by

Lord Hale's writing supported the implied consent theory. According to Hale, a wife gives carte blanc consent to sexual intercourse at the time of marriage.

Therefore, consent to each occasion of sexual intercourse is unnecessary. 6 Consequently, a husband cannot be prosecuted for committing rape upon his wife since consent is always present.

Finally, Hale's writings support the marital unity theory, which stated that a wife's legal identity merged into that of her husband. By marriage, the husband and the wife are one person in law, the bei ng of the wife is suspended during marriage and consolidated into that of her husband. From that perspective, rape of a woman was legally impossible since a man cannot rape himself.7 It is important to note all of the theories and rationales that lend support to the marital rape exemption. Upon examining them, it be-

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The husband cannot be guilty of rape committed. upon his lawful wife, .... his property.

comes clear that they have no place in today's society. Today t he perception of women is gradually transform ing, and reform is necessary and essential.

The marital rape problem has gained the attention of several women's political action groups, which has sparked changes in state statutes. Nevertheless, there are states where marital rape exemptions exist. In Alabama, Illinois, South Dakota and Vermont, there is absolute exemption. A husband is immune from prosecution until the moment when a divorce decree legally ends the marriage.

Not only is thi s exemption ludicrous, but it is al so unjust to wives who have virtually no protection. Under these statutes, a couple could be separated for years and if a husband forcibly rapes hi s wife one day before the divorce decree is final, he would be immune from prosecution.

Some states have limitations on marital rape exemptions. The least favorable limitation entitles a wife to protection from marital rape only after the couple is separated under a court order. 8 Kentucky, Louisiana, Maryland, Missouri, North Carolina, Rhode Island, South Carolina and Utah all have such statutes. These statutes place women at a di sadvantage and at the mercy of the courts, especially considering the amount of time and money it takes to procure a court separation order. Nine other states require that the exemption end once the parties are no longer living together. These states are Alaska, Arizona, Colorado, Idaho, Maine, Montana, New Mexico, Oklahoma and Texas. Virginia, Arkansas, Georgia and Mississippi and the District of Columbia are considered common law jurisdictions since they are officially silent on the marital rape matter. There are twenty states where cohabiting husbands can be prosecuted for raping their wives . These are California, Connecticut, Delaware, Florida, Hawaii, Iowa, Kansas, Massachusetts, Minnesota, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Oregon, Pennsylvania, Washington, Wisconsin , West Virginia and Wyoming. 9 It is interesting to note that in New York a high court declared the marital rape exemption to be unconstitutional. In Ore-

Juris

gon, the marital rape exemption no longer exists. New Jersey has made marital rape a criminal offense. The New Jersey law reads: "No actor shall be presumed to be incapable of committing a crime under this chapter because of age, impotency or marriage to the victim ." 10 11 Other states like California and Connecticut have made some progress in this regard but have not come as far as Orgeon or New Jersey. In Connecticut, a law was passed that intended to make marital rape a criminal offense, but it was later di scovered that the new law left the spousal exemption intact on several lesser degrees of sexual assault.

Thi s is also the case in Iowa.

In California, there is a special sect ion for marital rape. While husbands cannot necessarily claim a marital exemption, a husband is nevertheless "exempt" if his wife does not report the rape to the police within 90 days. He is al so "exempt" if th e rape occurred becau se the victim was incapable of giving consent (drunk, drugged, unconscious or mentally handicapped). Also in California, the marital rape law permits a husband to be charged with a misdemeanor rather than a felony, thus allowing for substantially lesser criminal penalties. Moreover, husbands convicted of marital rape do not have to register as sex offenders as do men convi cted of non-marital rape.1 2 Eight states are still silent on the issue of the marital rape exemption . The general trend appears to be an attempt to limit the marital rape exemption either by removing it entirely or by excluding separated and divorced couples from its purview. Unfortunately, the marital rape exemption still remains part of the United States judicial system .

The Pennsylvania legislature created the crime of spousal sexual assault in December 1984, to eliminate criminal immunity created by a perpetrator's marital status.13 Initially, Gov. Richard Thornburgh vetoed House Bill 1137. The Governor expressed concern that the commonwealth would be entering the privacy of the home and sanctity of an ongoing marriage, and that the bill would lead to frivolous and capricious charges, particularly at a time when a marriage is "dissolving as well as devaluating the anguish suffered by real rape victims."14 Under Pennsylvania's Spousal Sexual Assault Statute1s, if a couple is married, but living apart or there is a court imposed separation order prior to the rape, the hus-

Fall• 1993

Unless marital rape is treated in the same way as non-marital rape, women will continue to be oppressed.

band may be charged w ith rape punishable up to 20 years as a first degree felony. However, a five year statute of limitation is imposed upon the w ife. This protection is also valid if a wife was intoxicated or mentally incapacitated. In this instance a married spouse is treated like a non-married rape victim . However, if the marital rape victim resides with her husband and there is no court imposed separation order, the wife is not afforded the same protection as the aforementioned spouse. In this situation, a wife is not considered a rape victim but a victim of some form of assault. Unlike the first degree felony penalty available for the crime of rape, the victim's husband is only punishable with up to ten years' imprisonment under a second degree i elony.

In addition, a spouse who resides with her hu sband rapist must report her attack within 90 days to receive protection under the law. Finally, the spousal sexual assault law excludes a provision that protects mentally deranged or deficient victims who reside with their husbands at the time of the rape. There is just such a provision contained in the general rape law in Pennsylvania.

Spousal sexual assault victims are treated differently. Legally separated women living apart from their husbands are afforded protection equally commodious to non-marital rape victims. Women who reside with their husbands are treated like "second class citizens" and given inadequate protection from the violent crime of rape. As evidence, Pennsylvania makes an obvious distinction between the protection afforded to marital rape victims and

rape victims in general. While it appears that Pennsylvania has attempted to 'abolish the marital rape exemption, its Spou sal Sexual Assault Law falls short.

Since marital rape is such a complex problem and the states hold different theories with respect to combat ing t h is problem, the only recommendation that can be offered is to treat all rapes as ju st that-rape. There should no longer be any separate statutes for spousal sexual assault or marital rape. A rape, is a rape, is a rape.

In a society where women have made numerous strides and in a society that advocates justice and protection for all , it is an abomination that the judicial system would advocate protecting husbands from prosecution for raping their wives. Historical notions of characterizing women as property must be dispelled. Unless marital rape is treated in the same way as nonmarital rape, women will continue to be oppressed . Marital rape is rape, and it is imperative that the legislature recognize it as such.

JACQUELIN E 0. BROO KS,

fourth year evening

References 1. Abigale Andrew s Tiern ey, Spousal Sexual Assault: Pennsylvania's Place on th e Sliding Sca le of Pro· tection From Marital Rape, 90 D ICK. l. REV. m (1986).

2. l.M. Hale, Th e History of the Pleas of the Crown, 629 (S. Emlyn ed . 1778).

3. Commonwealth v. Fogarty, 74 Mass. 489, 490 (1857).

4. No te, To Have and to Ho ld: The Marital Rape Exemption and th e fo urteenth Amendment, 99 HARV. l. REV. 1255 (1986).

5. Id. 6. Id. 7. Id. at 1256.

8. David Finkelhor and Kersti Yllo, License to Rap e, Sexual Abuse of Wives, 140 N EW YORK: THE FREE PRESS (1987).

9. Id. at 141 .

10. N.J . STAT. ANN. § 2c14-5(b) (West 1992).

11 . Id. at 141-42.

12. 90 DICK. l. REV. at 785.

13. Id. 14. Id. 15. 18 PA. CONS. STAT. § 3101- 3128.

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Caution: Brain at Rest It seems difficult to believe that I am one-third of the way through law school.

Time really flies. It seems like only yesterday that I was procrastinating about reading Gideon's Trumpet. Now I'm doing the same with the next selection in Dean Sciullo's Book of the Month Club: Miracle at Philadelphia. This is not meant to slight the Dean in any way. It's just that I intentionally put it on the back burner this summer. My reason for doing this was that the summer of 1993 would be the final one that I would hold down a non-legal job.

This summer I was a maintenance worker for a certain highway that shall remain nameless (HINT: it runs through Pennsylvania). This provided a perfect opportunity to do just what Professor Yochum and others had advised : REST YOUR BRAIN. This "brain-get-away" should be a required three credit summer course for all first year students. Just imagine, instead of the weary student being schooled in the

art of photocopying, filing, or being held hostage for endless hours in the law library, he or she would be free to engage in whatever was of interest to him/her.

Throughout Pittsburgh there would be law students catching up on all those episodes of The Simpsons that they missed during the school year. There would be time for long walks, swimming, and maybe even time for discussions of relevant societal issues such as: " Who was the coolest sweathog?"; " What really happened to the original Darrin on Bewitched?"; or "If you could be a member of the Village People who would you be?" (My guess would be the cowboy).

Yes, the student would return to Duquesne in the fall ready to embark on the second year with a recharged mind and spirit along with some obscure job skill that perhaps might come into play during the discussion of a case in class ("Why yes, Professor Streib, I've handled roadkill!").

An intriguing idea perhaps, but reality calls and I must be getting back to my reading.

I think a good place to start is Gideon 's Trumpet. I'm anxious to see if Gideon and the Skipper get those people off the island .

JAYME DEIBLER, second year day

A Most Excellent Opinion

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In 1992, Judge James C. Paine handed down a most excellent opinion considering whether the district court's subject matter jurisdiction was properly invoked. 1 Apparently, a fire on the Prime Time, a boat in a Florida marina, "hurled chunks of flaming debris," destroying boats owned by Plaintiffs.2 After Plaintiffs amended their complaints to include the owner of the Prime Time as a defendant ("Prime Time"), Prime Time sought to remove the proceeding to federal court, claiming it had original jurisdiction in an admiralty dispute. 3 The court agreed with Prime Time-"NOT!"-noting that the defendant "schw[u]ng and miss[ed]" by about nine months. 4 "In short, Prime Time's most bogus attempt at removal is 'not worthy' and Defendants must 'party on' in state court." 5 Juris staff members swear on a stack of UCC supplements, "we ain't lyin ' ."

References

1. Noble v. Bradford Marine, Inc., 789 F. Supp. 395, 396 (S .D. Fla. 1992).

2. Id. 3. Id. 4. Id. at 397.

5. Id.

Juris

Welcome to the Family Uncle Sam After several years of heated debate and a veto by the last administration, President Clinton last February signed into law the Family and Medical Leave Act of 1993 ("Act"). 1 Effective Aug. 5, 1993, for businesses with more than 50 employees (or no later than Feb. 5, 1994 for those with collective bargaining units), this legi slation guarantees eligibl e employees the right to take up to 12 weeks per year of unpaid leave from a job for family or med ical reason s. Employees are entitled to continued health benefits during their leave, as well as a return to their own job or a comparable position with equivalent pay and benefits.

Who Is Eligible?

Employees are eligible for leave under the Act if they have worked for a covered company for at least one year and 1,250 hours within the previous twelve month period .2 Additionally, they must work at a location where the employer employs at least 50 employees within a 75 mile radius. 3 What Situations Qualify?

Guaranteed leave is available for an employee to: care for a child after his/her birth or. adoption; take in a child through adoption or foster care; care for a child during the first year after birth or placement; care for a child, spouse, parent or oneself if suffering from a "serious health condition." The Act defines "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential health care facility; or continuing treatment by a health care provider."4 An employer may require medical certification for any medical leave request, or a certification and estimate of how much time is needed for family leave, and may also require periodic recertifications during the leave.5 An employer who doubts the certification may, at its own expense, require a second, and in some cases, a third opinion .

If an employee is entitled to paid vacation or sick leave, the employee may elect or the employer may require that the paid leave be taken first as part of the requested leave.6 For instance, Mary's child becomes seriou sly ill. Mary has three weeks of paid vacation and two personal days left for the year. She requests 12

Fall• 1993

weeks of leave. Her first 17 days of leave will be paid, and the remaining forty-three days will be unpaid .

Other Provisions Congress did not intend for the Act to diminish any leave rights already provided to employees either by their company or required by state law. For instance, some states currently require employers with less than 50 employees to provide certain types of leave. (California requires employers with at least five employees to provide reasonable pregnancy and disability leave; Oregon provides for childbirth or adoption leave for 25 or more employees; Vermont require s childbirth or adoption leave for companies with ten or more employees and health care leave for serious medical reasons for businesses with fifteen or more employees).7 Employees or the Secretary of Labor may bring civil actions for relief for any violations of the Act. Available relief may include money damages for lost wage s and employment and actual damages such as the cost of providing care, and equitable relief such as employment, reinstatement, and promotion . Damages may also include reasonable attorney fees, fees of expert witnesses, and costs. 8 Employers affected by the Act are required to post a notice summarizing the law in a common area in their place of business. Additionally, employers with em ~ ployee handbooks or written pol icies regarding employee benefits or leave rights, must revise such documents to include information on the Act's provisions.

Fines of up to $100 per offense may result for those businesses failing to comply.9 The Act Makes Good Business Sense The Fam ily and Medical Leave Act represents a new avenue in national legislation and opens new opportunities for businesses to change their way of viewing employee benefits. Critics of this new law view the Act as another example of government's excessive meddling in our country's free enterprise system. But one thing they often fail to recognize is the drastic change occurring in the needs of the average American worker. The relationship between work, employees, and their families is changing due to a shift in family structure. According to the Bureau

of Labor Statistics, both s pou s~s are employed in 63 percent of married-coupl e families. 10 By the end of this decade, nearly 80 percent of all mothers nationwide will work outside of the hom e sometime during their child-rearing years. 11 Employee turnover rate is high in many businesses, absenteeism abounds, and family medical costs soar-all taking a toll on a bu si ness' bottom-line. A report by the Child Care Action Campaign report s that businesses lose $3 bill ion annually as a result of childcare related absences alone.12 Businesses are becom ing increasingly motivated to recognize the work/family relationship because press ures associated w ith the labor shortage and t he costs the company has to absorb when workers choose their home respon si bilit ies over their work responsibilities are daily realities. Businesses are being challenged to view the Family and Med ical Leave Act as a means of increasing their competitive edge. Most cultures outside the U.S. have a much greater concern for the family unit which is reflected in the benefits given to employees. For instance, parents in Sweden receive 15 month s of paid leave to divide up between them as they wish during the first eight years of a child 's life. 1 3 Although the government provides subsidies, Swedish businesses see it as a necessity to keeping its employees productive.

As U.S. companies compete more on a global basis, those with the happier, more productive employees will have the edge.

GLENN

E.

CAMUS,

third year evening

References 1. Fam ily and Medical Leave Act of 1993, Pub. L. No. 103-3, § 101 , 107 Stat. 6 (1993).

2. Id. at § 101(2)(A).

3. Id. at § 101(2)(B)(ii).

4. Id. at § 101(11).

5. Id. at § 103.

6. Id. at § 102(d).

7. Peter M . Panken, The Family and Medical Leave Act of 1993, 464 PRAC. L. INST. 215 (1993) 8. 107 Stat. 6 at § 107.

9. Id. at § 109.

10. BARBARA S. VANDERKOLK & ARDI S A. YOUNG, THE WORK AND FAMILY REVOLUTION ix (1991).

11 . Jennife r Haupt, Employee Action Pro mpts Management to Respond to Work-and-Family Needs, PERSONNEL J.. Feb. 1993, at 96.

12. Id. at 98.

13. Denise M . Topoln icki, The World's Best 5 Ideas: Sweden, How to Ca re for Our Yo ung Ones, M ONEY M AG ., June 1, 1993, at 76.

m

If I Need A Liver, Organ transplants have become so commonplace in Pittsburgh that we hardly take note of their mention in the evening news. In August 1992, USA Today reported that the University of Pittsburgh was the country's busiest organ transplant center with 736 transplants per year.1 Pittsburgh earned its reputation as a mecca for organ transplantation by serving as the home base for medical pioneers like Dr. Thomas E. Starzl, a renowned transplant surgeon at the University of Pittsburgh Medical Center (UPMC) and director of the UPMC's Transplantation Institute. Dr. Starzl's team has performed countless transplant operations, many of which have become high-profile cases.

Pennsylvania's Gov. Robert P. Casey made the news when he received a heart and liver transplant under the expert care of Dr. Starzl's team in June this year. Much public concern was raised over the speed with which donor organs became available for the governor: he was on the recipient waiting list for only one day before he received the organs. The donor, a 34-year-old man from Monessen, Pa., was the victim of a fatal beating. The man had remained on life support at a nearby hospital until his family decided to turn off the machines and donate his organs, which were compatible with the governor's tissue type.

UPMC officials maintained that Gov. Casey had been placed at the top of the recipient list because he was in need of multiple organs. When a patient is in need of multiple organs, it is preferable to take them from one donor. Therefore, a recipient needing more than one organ is placed on a separate list. Officials acknowledge that such a policy is open to criticism . Some contend that the organs that went to Gov. Casey could have been used to save two lives rather than one if they had been given to the top priority patients from both the heart and liver recipient lists. With all of the controversy surrounding the issue of organ transplants, there seems to be no criticismproof way to set guidelines.

Owing to the unavailability of organs, difficult decisions are made daily.

Obviously, it is not easy to decide who will receive organs and who will remain on the

waiting list. Eight people will die each day across the country while waiting for organs; one person will die in Pennsylvania.2 "That's the paradox of transplantation: it takes a death to save a life," says Roger W. Evans, head of health services evaluation at the Mayo Clinic and a leading researcher on transplants. And because of lengthening waiting lists, "every time you do a transplant, someone's going to be elated to have that extra chance at life and someone else is going to be disappointed ."3 Ellen Moskowitz, a medical

. . . the Governor waited less than 24 hours ....

Patients on the waiting list for a heart transplant . .. wait an average of 198 days. ethics attorney, calls it "a classit case of what's sometimes referred to as a tragic choice. There are more people who need the organs than there are organs available.

Therefore some people will live, and some people will die."4 Studies have shown that anywhere from 30% to 50% of those waiting for organs will die before what they need becomes available. 5 In the five days following Gov. Casey's heavily publicized heart-liver transplant, Pittsburgh doctors performed 27 additional organ transplants, according to Brian Broznick, executive director of the Center for Organ Recovery and Education (CORE), the agency responsible for recovering organs and getting them to recipients in the tri-state area. In each of these 27 cases, a donor had to die before the transplant operation could take place, and other desperately ill recipients had to be kept waiting in line. 6

Donors and rec ipients are matched on the basis of blood type, body size, length of time on the waiting list and medical emergency. When news surfaced that the Governor waited less than 24 hours for available organs, many people were skeptical. However, following an examination, tests revealed that Gov. Casey suffered from a build-up of an abnormal protein produced by his liver. The build-up was a result of a liver disease known as amyloidosis, which was attacking his heart and other vital organs. According to Dr. Starzl, Gov. Casey's heart was in fibrillation, beating irregularly and pumping ineffectively.

He was listed as "stat 1" on the heart list the highest priority ranking of medical urgency. On the liver list, he was "stat 3," the second-highest rank.7 Patients on the waiting list for a heart transplant will wait an average of 198 days. For liver transplant patients, the average wait is 67 days.8 Skeptics argue that the rich and famous are given priority, while the poor are not even placed on a list. In order to be placed on a waiting list in Pittsburgh, a patient must be financially cleared, which means that he or she must have sufficient private health insurance, Med ica re , Medicaid or a substantial down payment -$208,000 for a liver transplant, $200,000 for a heart transplant or $118,700 for a kidney transplant. 9 According to the United Network for Organ Sharing (UNOS), more than 31,000 people in the United States are currently waiting for donor organs. Last year, approximately 25,000 were on the waiting list.10 The Association of Organ Procurement Organizations (AOPO) reported that in 1992, 4,549 organ donors resulted in 14,062 transplants. (AOPO estimated there were approximately 2,300 organs donated by living donors that were not included in the report because they are not coordinated through organ procurement organizations [OPO].) According to the AOPO, 42 of the 65 OPOs in the United States reported a decrease or no change in the rate of donation from 1991to1992. 11 One issue that has sparked a lot of cpntroversy is that of foreign organ recipients. Some have taken issue with the fact that many foreigners come to the United States for transplants and often

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Should I Run For Office? receive organs before U.S. citizens who are on the waiting list. A recent move in Congress may ban foreign transplant patients from receiving the scarce donated U.S. organs. This would strongly affect hospitals that market abroad for wealthy patient referrals. In July 1993, the House Subcommittee on Health and Environment approved a measure that will require organ transplant centers to place non-U.S. residents on a second, lower-priority waiting li st . Once the main list is exhausted, an organ could then be offered to someone who is not a U.S. citizen . Because there are not enough organs to meet the demands of U .S. residents, legislation introduced as part of the reauthorization bill for the National Organ Transplant Act would effectively close the door on foreign patients who come to the U.S. for lifesaving transplants.12 Many U.S. hospitals aggressively market transplant programs in foreign countries. Recent policy, enacted in 1986, allows the nation 's 811 transplant programs to perform up to 10 percent of donated organ transplants on non-U.S. residents. The bill in Congress would eliminate the 10 percent foreign-transplant patient limit. Restricting transplants for foreign patients could pose a financial hardship on U .S. hospitals and poor U.S. patients whose transplants are, to some extent, underwritten by cash-paying foreign transplant patients. The portion of transplants performed on non-U.S. residents last year is a reported 1 percent to 4 percent for various types of donated organs. Officials of Sharp Memorial Hospital in San Diego report that all four of the U.S. donor organ transplants performed on foreign patients there since 1990 were cash customers. Performing transplants on cash-paying patients allows the hospital to render services to other patients for whom the hospital would otherwise lose money. In retrospect, one full ca!lh-paying patient allows the hospital to perform services for four additional Medicaid patients.

"Foreign patient transplants are an important capital source that allows you to take care of your own population. We take a loss on some and regain it on others," stresses Dr. Auturo Martinez, a transplant surgeon at Sharp Memorial. 13

Fall路 1993

Some maintain that such financial "trade offs" only serve to undermine the credibility of U.S. trans plant programs.

"Too many hospitals regard foreign transplant patients as a cash cow," according to a House subcommittee spokesman . " To perform a transplant on a forergn patient because they are wealthy enough to pay for it denies a chance to a U.S. citizen. Ask the families who have lost someone who was waiting for an organ if they are willing to make that trade off."1 4 Scripps Health and Sharp Healthcare, entities that operate two of San Diego's three certified transplant programs, aggressively seek foreign patient referrals for costly procedures such as bypass surgery and organ transplants. Sharp Healthcare and the San Diego Children's Hospital jointly fund a business development entity called International Services (IS), which provides free, extensive consulting and development services with physicians and hospitals in Mexico, Micronesia, Japan and Hong Kong in return for foreign patient referral. Sharp Healthcare expects to reap $10 million in hospital revenues from patient referral s that flow through 1s.1s In addition to eliminating the 10 percent foreig n patient transplant limit, the proposed reauthorization bill would force

transplant programs to comply with UNOS bylaws and policies. At present, compliance is voluntary. UNOS officials stated that due to peer pressure, they currently have a high rate of pol icy compliance, despite a lack of regulatory power.

In most cases of non-compliance, transplant programs had a tendency to list patients as more critical than they actually were, thus allowing them to move to the top of the transplant list. 16 Congress passed the National Organ Transplant Act more than a decade ago to prevent organ marketing. Any form of financial incentive would eventually lead to black marketing and to organs becoming available only to those who could afford to pay. The current system, whatever its shortcomings, is based on the notion that organs will be distributed democratically, at least to those who have health coverage.17 During the 1980s, opposition to any type of remuneration was all but absolute.

Physicians and legislators believed that conscience, not cash, would lead individuals or their families to donate organs in the event of death. But because of technological advances in transplant and improved transplant success rates, the waiting lists are steadily increasing, while organ dona-

Organ Donor stickers for your Pennsylvania Driver's License and information concerning organ donation are available from the Pennsylvania Department of Health, all Photo Driver's License Centers, or by calling 1-800-692-7254.

For those readers near The Law School, Juris has a limited supply of Organ Donor stickers available.

tions remain static. A small but vocal group of educators, medical ethicists and physicians are now calling for financial incentives to help close the gap. One proposal is that families receive a flat fee for donation. Another alternative is to pay the organ donor's burial expenses. 18 Dr. Cohen of the Chicago-Kent College of Law suggests establishing a type of life-insurance system to reimburse an individual's beneficiaries after an organ donation. Such contracts, he says, would serve as an incentive for individuals to consider donating their organs. At the

... the voluntary donor method has failed, ... Jess than 15 percent of the public carries a donor card. same time, it would sidestep the criticism surrounding excessive paymerits fo r organs by keeping the reimbursement at a nominal level such as $5,000 for any major organ that is transplanted. "Everybody makes money from transplantation except the person who delivers the most important product, t he organ," says Dr. Cohen. " I don't think this will solve the organ shortage, but we could make great progress." 19 The American Medical Association 's Council on Ethical and Judicial Affairs supports proposals to pay donors' funeral expenses and has appointed a committee to study "future contracts " involving donor organ s. 20 One recent proposal for increasing organ donations would radically change the norms of consent: under the plan, consent to donate is assumed unless an individual specifically elects not to give his organs after death. " Presumed consent" was debated in an October 1991 article in the New England Journal of Medicine. Dr. Aaron Spital of the University of Maryland argued that there is no lack of potential donors, but a failure by physicians to turn potential donors into actual donors. He maintained that the voluntary donor method has failed, noting that less than 15 percent of the public carries a donor card. He also noted that the 15 percent

who carry a card are the least li kely to die in a t raffic accident (most donor organ s come from accident victims) because t hey tend to be more carefu l drivers. Dr. Spital argued that " pres umed consent" would take the burden off families in a time of crisis. He noted that presumed consent has been successfu l in Europe, pointing specifically to Belgium where the approach has Jed to a 140 percent increase in donations over the past five years. 21 Not everyone agrees that consent should be assumed. As the Kennedy Institute of Ethics, Dr. Robert M. Veatch maintains that donating organs is a " quasiproperty rights issue" and one's right to one's organs, like one's interest in real property, should not be lost simply because one does not affirm or assert the right. 22 Three model s are usef ul in dealing with this aspect of organ transplants: the t hen-Comm uni st bloc view, the European view, and the American view. Communists and other dictatorships regard the body as property of the state once a person dies. Therefore, hi s organs can be di sposed of in any manner that the state wishes. This view, of course, is unacceptable in Jewish, Islamic and Western law.

Several European countries, including Belgium, Holland and France, have passed laws that allow taking organs for saving I ives if the deceased had not signed a statement, during hi s lifetime, objecting to such a procedure. Lastly there is the American view, which dictates that one's organs cannot be removed without permission. 23 In July 1993, at a meeting of the Joint House-Senate Judiciary Committee of the Pennsylvania legislature, testimony was given by witnesses urging approval of " presumed consent" legi slation that would allow the automatic donation of organs for transplants in Pennsylvania unles s the deceased individual had previously indicated otherwise, or relatives objected. 24 If passed, the bill, sponso red by state Sen. Michael D~wida, D-Carrick, would be the first in the country to create such a presumption for the donation of such life-saving organs as hearts, lungs and livers. It is believed that the measure will help ease the critical shortage of donor organ s in P.ennsylvania.25 But Witold Walczak, execut~ve director of the Pittsburgh chapter of the American Civil Liberties Union (ACLU) has raised doubts about the bill 's constitutionality.

"It pays insufficient regard to the rights of privacy and personal autonomy, (and) is insensitive to the rights of many religious

minorities." For Native Americans, Orthodox Jews and most Asian religions, disemboweling the body is sacrilege, he said .

The ACLU su pports educational efforts to encourage donation . Walczak said the proposed law would assume that the state has control of every citizen's organs unless t he citizen acts to negate that control, a concept that courts have rejected in the past. 26 In an age where the waiting li sts for donor organs is increasing at an accelerated rate and the availability of organs remains scarce, it is obvious that the future for organ transplant regulations is far from settled . While controversy besets almost every aspect of the organ transplantation iss ue, it is hard to discern th e outlook for t he future. One thing that remains true is that the social , ethical and constitutional issues will continue to be argued . Only time w ill reveal the final outcome of the tragic choices surrounding organ tran splantation.

LISA DICERBO, fo urth year evening References 1. The University of California at Los Angeles was second with 406, followed by the University of Cali fornia at San Francisco with 347, Ohio State University with 324, and t he University of Alabama with 312.

2. Mackenzie Carpenter, " Presumed" Donor Bill Aired, PITTSBURGH POST-GAZETTE, July 14, 1993, at A10.

3. Don Colburn, Governor Casey's Quick Double Transplant: How Did He Jump to the Top of the Waiting List? WASHINGTON POST, June 22, 1993, at Z8.

4. Domestic News (CNN television broadcast, June 16, 1993).

5. Rickie Windle, Waiting on Death for Another Cha nce at Life, AUSTIN BUSINESS JOURNAL, July 5, 1993, at 1.

6. Colburn , supra, at Z8.

7. Id. 8. Id. 9. Id. 10. Penni Crabtree, Law Jeopardizes Transplants for Foreigners, Hospitals' Fees, SAN DI EGO BUSINESS JOURNAL, July 19, 1993, at 1.

11 . O rgan Donation Remained Flat in 1992, According to AOPO Survey, TRANSPLANT NEWS, March 31 , 1993.

12. Crabtree, supra, at 1.

13. Id. 14. Id. 15. Id. 16. Id. 17. Nat Semple, Ending the Organ Grind; Transplants Could be Quicker and Fairer, W ASHINGTON POST, July 11, 1993, at C4.

18. Prerna Mona Khanna, Scarcity of Organs for Transplant Sparks Move to Legalize Financial Incentives, WALL STREET JOURNAL, September 8, 1992, at B1 .

19. Id. 20. Richard A. Know, Profiteering is Found in Transplant System, BOSTON GLOBE, June 24, 1993, at 3.

21 . Windle, supra, at 1.

22. Id. 23. Judy Seigel-ltzkovitch , Postmortem - Did Sorkoa Doctors Do the Right Thing? JERUSALEM POST, June 25, 1993.

24. Ca rpenter, supra, at A 10.

25. Id. 26. Id.

Juris

Judges Don Lab Coats: Supreme Court Adopts Rules for Expert Scientific Evidence

On June 28, 1993, the U.S. Supreme Court ruled in Daubert v. Merrell Dow Pharmaceutical Inc. that " general acceptance" of a scientific theory in the relevant field is no longer a precondition to admissibility of expert scientific evidence. 1 In Daubert, Petitioners, two minor children and their parents, alleged in their suit against Merrell Dow that the children 's serious birth defects had been caused by the mother's prenatal use of Bendectin, a prescription drug marketed

by Merrell Dow. The district court granted summary judgment for Merrell Dow, giving much weight to the affidavit of an expert who testified for Merrell Dow. Upon reviewing the extensive published scientific literature on the subject, the district court concluded that maternal use of Bendectin had not been shown to be a risk factor for human birth defects. Petitioners responded with their own conclusive evidence through the testimony of eight other experts, who based their conclusion that Bendectin can cause birth defects on animal studies, chemical structure analysis, and unpublished studies.

The district court, however, determined that this evidence did not meet the applicable "general acceptance" standard for the admission of expert testimony. The court of appeals agreed and affirmed, citing Frye v. United States, 2 for the rule that expert opinion testimony based on a scientific technique is inadmissible unless the technique is " generally accepted" as reliable in the relevant scientific community. The Frye test originated in 1923 in a case involving the admissibility of test results from a precursor to a modern polygraph. Because the lie detector test had not gained scientific recognition, the U.S. Court of Appeals for the District of Columbia Circuit held that the results were inadmissible.3 The Supreme Court unanimously held that the 70-year-old common law Frye rule had been superseded by the more liberal federal rules of evidence ("FRE"). Indeed, Justice Harry Blackmun maintained that "that austere standard, absent from and incompatible with the

Fallâ&#x20AC;˘ 1993

Federal Rules of Evidence, should not be applied in federal trials. " 4 The FRE, especially Rule 702, assigns trial judges the task of ensuring that an expert's testimony rests on a reliable foundation and also that the testimony is relevant. When faced with expert proof, a trial judge must determine whether the expert's proffered testimony is based on scientific knowledge that will assist the trier of fact in understanding or determining a fact in issue. The Court also stated that traditional measures of judicial control, including screening unqualified experts or irrelevant evidence and granting summary judgement and directed verdicts where warranted, are adequate to contain unreliable testimony. Further, the Court added that juries will have adequate opportunities to assess witness credibility

through cross-examination.

Chief Justice William Rehnquist and Justice John Paul Stevens concurred wi t h the majority's holding that the Frye rule is no longer good law. But their d issent from the majority holding argues that the majority should not have gone beyond its ultimate conclusion when it stated that the FRE have supplanted the Frye rule.

In Daubert, Blackmun wrote that nothing in the text of Rule 702 establishes "general acceptance" as an absolute prerequisite to admissibility. Further, "a rigid general acceptance requirement would be at odds with the liberal thru st of the rules and their goal of relaxing the traditional barriers to opinion testimony." 5 Moreover, Merrell Dow was unable to convince the Court that the FRE somehow assimilated the Frye test. The Court

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emphasized that the permissive FRE make no mention of " general acceptance." The majority cautioned that the FRE do place some lim its on admissibility. Indeed, " the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." 6 Add itionally, the subject of an expert's testimony must be " scientific . . . knowledge." The adjective "scientific" implies a grounding in the methods and pro cedures o f science. The word " knowledge" connotes more than subject ive belief or unsupported speculation.

Al so, " proposed testimony mu st be supported by appropriate validation-Le., 'good ground s, ' based on what is known. " 7 In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evid entiary reliability. Additionally, " Rule 702's helpfulness standard requires a valid sc ientific connection to the pertinent inquiry as a precondition to admissibility. " 8 Ju st ice Rehnquist, with whom Justice Stevens joined, concurring in part and dissenting in part, suggested that the majority opinion will raise more questions than it answers: I do not doubt the Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony. But I do not think it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role. I think the Court would be far better advised in this case to decide only the questions presented, and to

Are doors being opened to any theory which sounds 'reasonable' to a trial judge? leave the further development of this important area of the law to future cases. 9 Will the Court's ruling merely place added burdens on trial courts? Those courts are already overwhelmed with the "battle of experts." But, at least in the past, theories presented were being prequalified by the scientific community cognizant of the questions under consideration . Are the doors being opened to any theory which sounds " reasonable" to a trial judge?

And what of the burden placed on the juries, which will now be forced to weigh between abstract theories to determine merit as to weight of argument?

These issu_ es as questions are not new. There is considerable commentary on the merits of both, and the FRE had been held to have superseded the common law on at least one occasion .10 The Daubert Court specifically cites FED. R. EVID. 702, that speaks to the contested issue directly.

Proponents of the Frye test argue that it assures uniformity in evidentiary

rul ings; t hat it shields juries from any tend ency to treat novel scientific evidence as infallible; that it avoids complex, expensive, and time consuming courtroom d ramas; and that it in sulates the adversary system from novel evidence until a pool of experts is available to evaluate it in court.11 McCormick reports that most commentators agree that these objectives can be attained satisfactorily with " less drastic constraints on the admissibility of scientific evidence." 12 He encourages the use of the traditional standards of relevancy, now stated as the requirements under Daubert, and justifies this by stating that general scientific acceptance is a proper condition for taking judicial notice but is not suitable for the admission of evidence.

Whether the formal adoption of this position by the Court further encumbers the taking of scientific evidence is now a matter for continued observation. It seems difficult to understand how it will not.

When the scientific community debates a subject without conclusion, how can we expect the trial court and, in particular, the juries to do so?

KEN M c KAY, fourth year evening

References 1. Daubert v. Merrell Do w Pharmaceutica l Inc., 113

s. Ct. 2786 (1993).

Frye v. United States, 293 F. 1013 (D.C. C ir. 1923).

Id. at 1014.

Daubert at 2790.

Daubert at 2794.

Id. Id. Id. Daubert at 2800 (Rehnquist, C.J., concurring in part and di ssenting in part).

10. Bourjaily v. United States, 483 U.S. 171 (1987).

2.

3.

4.

5.

6.

7.

8.

9.

11 . C HARLES T . M CCORMI CK ET AL, M CCORMI CK ON EVIDENCE ยง 608 (3d ed . 1984).

12. Id.

The Cost of Signing the Dotted .Line Recently the U.S. Supreme Court announced amendments to the Federal Rules of Civil Procedure.1 Among the rules changed is Rule 112, which deals with sanctions levied following the improper filing of pleadings, motions and other papers with Federal District Courts.

The first change, referred to as the " safe harbor" provision, states that a Rule 11 motion for sanctions "shall not be filed with or presented to the court unless, within 21 days after service of the motion . .. the challenged paper . . . is withdrawn

or appropriately corrected ." Subsection (c)(1)(A). Thus, once the motion for sanctions is served, a litigator will have 21 days to withdraw or correct alleged offenses in the document without sanctions being imposed. Currently, if a litigator believes a pleading, motion or other paper violates Rule 11, a motion may be filed with the court for an appropriate sanction against "the person who signed it, a representative party or both."

The second important change is the "continuing duty" obligation. The issue of

whether a pleading or motion violates the rule is viewed in the context of the litigation at the time of filing. Under the proposed rule, sanctions may not only be warranted for documents found to be improper at the time of their filing; but also may extend to all meritless allegations contained in any filing.

The third important change is the "permissive imposition of sanctions," which gives the judge discretion in imposing sanctions as opposed to the current rule, which requires the court to impose

Juris

sanctions when a violation of the rule is found .

The fourth and most important, change initiates a shift away from sanctions consisting of an award of attorneys' fees. Subsection (c)(2) of the proposals emphasize the deterrence goals of the rule by limiting sa nctions to what is sufficient to deter repetition of such conduct. The sanction must consist of or include orders such as nonmonetary penalties, payment of penalties, or payment of some or all reasonable attorneys' fees and expenses stemming from the violation. Subsection (c)(2)(A) of the proposal states that monetary sanctions may not be awarded against a represented party for a violation of Subsection (b)(2). This ensures that the client will be sheltered from monetary sanction when his or her counsel advances theories not supported by existing law or by reasonable inference from existing law.

However, this apparently does not protect the party from the power of the court to impose sanctions or remedial orders that may have collateral financial consequences such as dismissal of a claim, preclusion of a defense or preparation of amended pleadings .

The fifth proposed change is the addition of Subsection (c)(1)(A), which imposes joint liability on firms for Rule 11 violations committed by partners, associates and employees and overrules the recent U .S. Supreme Court decision in Pavelic & Laflore v. Marvel Entertainment Group, 3 which held that joint liability for the firm could not be predicated on a Rule 11 violation by its agents.

The sixth significant change mandates that no Rule 11 consideration will apply to sanctions related to discovery. Thus, the litigator will have to examine the different sanctioning provisions of each rule to determine possible application, as well as the relevant case law in the determination of standards as well.

The U.S. Supreme Court in Cooter & Gell v. Hartmarx Corp. stated that the purpose of Rule 11 is to deter baseless filings in the district courts and streamline the administration and procedure of federal courts.4 The question remains whether the proposed changes will modify the existing standards for review to be applied to determine the propriety of sanctions for baseless filings as they relate to both lawyers and clients. In Cooter, the Supreme Court held that an abuse-of-discretion standard should be applied in reviewing all aspects of a district court's Rule 11 determination 5 based on policy goals of

Fall• 1993

efficiency and deterrence. Thus, abuse of discretion will occur only if the appellate court determines that the district court was clearly in error.

The rationale is that the district court is in the best position to determine whether a sanction is warranted in light of local practices. Additionally, deference to the district court's determination emphasizes and strengthens the district court in its attempts to control litigants and free appellate courts from the duty of reevaluating evidence as well as to discourage litigants from pursuing marginal appeals.

Further, the decision to sanction must be influenced by the factual nature of Rule 11 determinations, as well as the district court's greater familiarity with all facets of a case. Given the rationale for the " abuseof-discretion " standard, as well as the nature of the proposed Rule 11 changes, it is difficult to see how the proposed changes could result in a reconsideration of the present standard of review.

Cooter imposed a duty to conduct a "reasonable inquiry" to ensure that

ings does not relieve the party who signs the document from conducting inquiry into the facts and law in order to be satisfied that the document is well grounded • • • " 7 In formulating the standard, the Court in Business Guide stated" . . . standards for ... determining whether the party is subject to Rule 11 sanctions is one of reasonableness under the circumstances . . . the rule states unambiguously that any signer who does not conduct reasonable inquiry will face sanctions." 8 Thus both lawyer and client are held to an objective standard .

The present Rule 11 states " ... [i]f a pleading, motion, or other paper is signed in violation of this rule, the co urt ... shall impose ... sanction" (emphasis added). At least one circuit, the District of Columbia Circuit, has held that failure to impose sanctions constitutes error.9 In Pelletier v. Zweife!, 1° the Eleventh Circuit Court of Appeals advanced the mandatory nature of the imposition of sanctions to include the requirement that "[a] district court . . . must impose sanctions sua

papers filed in court are well-grounded in fact, legally tenable and not interposed for improper purposes. The standard is, " reasonable inquiry under the circumstances." An objective rather than a subjective test has been applied by the court.

The only impact that the proposed Rule 11 changes will have in the application will be that an attorney filing a document will have a second opportunity to make inquiries under the "safe harbor" provision of Subsection (c)(1)(A) prior to the sanctioning.

The proposed standards for dealing with abuse of Rule 11 were addressed by the Supreme Court in Business Guides, Inc. v. Chromatic Communications Enterprises, lnc.,. 6 The Court held that "the fact that ... a party represented by council is not required to sign most papers or plead-

sponte whenever it finds a complaint to be frivolous." Although the Pelletier case clearly had an unusual factual basis that may limit the application of the holding, the case clearly stands for the proposition that a district court should not limit its consideration of Rule 11 sanctions to issues and arguments raised. In Pelletier, although it appears that a district must impose sanctions only when it has found the complaint to be frivolous, a full reading of the opinion reveals that the rationale is not limited to a frivolous complaint.

One proposed change under sanction to Rule 11 provides that "[i]f, after 'notice and a reasonable opportunity to be respond, the court determines that subdivision (b) has been violated, the court may .. . impose an appropriate sanction upon the attorneys ... that have violated

subdivision (b) or are responsible for the violation." 11 Given the prior interpretation of the word "shall", a clear implication has now been raised by use of the word "may" in the proposal that sanctions no longer are mandatory. The related issue of sanctions via a sua sponte motion has been clarified by the proposed changes as well.

Subsection (c)(1)(B) states," . . . On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney .. . to show cause why it has not violated subdivision (b) . . . "Subsection (c)(2)(B) of the proposed changes further limits sanctions imposed sua sponte, "monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned. " Additionally there exist at least two situations where the U.S. Supreme Court has ruled concerning application of Rule 11 sanctions. The first instance involves sanctions for a frivolous appeal of a d istrict court order to a circuit court. The Supreme Court has ruled that Appellate Rule 38, not Rule 11, should serve as the basis for sanctions. The Court noted, that Civil Rule 11, permitting sanctions for filing frivolous papers, and Appellate Rule 38, permitting sanctions for filing a frivolous appeal, are better read together as allowing expenses incurred on appeal to be shifted onto appellants only when caused by a frivolous appeal; not merely because Rule 11 sanctions upheld on appeal can ultimately be traced to baseless filing in district court. 12 Secondly, the Supreme Court has indicated that Rule 11 sanctions are available even if a lawyer voluntarily withdraws a complaint under the Federal Rules permitting voluntary withdrawal before there are significant developments in the case.

The Court noted, " Because Rule 11 sanction does not signify a district court's assessment of the legal merits of complaint, imposition ... does not deprive plaintiff of his or her rights under rule permitting dismissal . . ." 13 Neither of these two holdings will be disturbed by any of the proposed changes to Rule 11.

Lastly, the Supreme Court in Willy v. Coastal Corp, 14 held that a district court has the authority to impose Rule 11 sanctions even though it lacks subject matter jurisdiction to rule on the merits of the case.

Under the existing Rule 11, the issue of whether a pleading or motion is in violation of the rule is viewed in terms of the litigation at the moment of filing. The issue has been raised as to whether a continuing obligation exists to conform already filed pleadings to new factual and legal circumstances. In Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Associated Contractors, lnc., 15 the Eleventh Circuit held that "Rule 11 did not impose a continuing obligation on the [plaintiff] to amend its complaint, at least if the complaint was reasonably interposed in the first place." 16 The rationale was that a "district court must focus on what was reasonable for an attorney to believe at the time the pleadings were filed, not on what the court later finds to be the case." 17 The change found in Subsection (b)(3) of the proposed Rule 11 states "(b) . .. [b]y presenting to the court . . . a pleading, written motion, or other paper,

Clearly, offending Jaw firms and not just lawyers signing documents will now be liable for sanctions.

Another important area relates to individuals and other entities against whom Rule 11 sanctions may be awarded . Clearly, offending law firms and not just lawyers signing documents will now be liable for sanctions. Subsection (c)(1)(A) of the proposed Rule states that a law firm will be jointly liable for violations committed by its partners, associates and employees.

This overturns the Supreme Court's holding in the recently decided case of Pavelic & LeF/ore v. Marve/ Entertainment Group,18 which held that Rule 11 sanctions may be imposed only upon the attorney who signs the document and not on that attorney's law firm . Previously, courts had awarded Rule 11 sanctions against an attorney as well as the attorney's law firm.

The decision was clearly based upon a literal reading of present Rule 11, "Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name."

In short, the proposed change s to Rule 11 are important becuse of the sanctions that can be imposed and because of the joint liability the Rule imposes upon firms and partners.

J.W.

BONIE,

Alumnus L'78

References 1. 61 . U. S. L. W. 40 d108, "The Fed e ral Rules o f C ivil Procedure for the United States District Co urts be, and they he reby are, ame nded by including the rein amendme nts to Civil Rules 1, 4, 5, 11 , 12, 15, 16, 26, 28, 29, 30, 31 , 32, 33, 34, 35, 37, 38, 50, 52, 53, 54, 58, 71A, 72, 73, 74, 75, and 76, and new Rule 4.1, a nd abrogation of Fo rm 16-A, and a me ndments to Form s 2, 33, 34, and 34A, and new Fo rms 1A, 18, and 35."

2. FED. R. EVID. 11 .

3. 493 U.S. 120, (1989).

4. Cooter & Gell v. Hartmarx Co rp., 496 U.S. 384 (1990).

an attorney ... is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . .. (3) the allegations and other factual contentions have evidentiary support or . .. are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, are reasonably based on a lack of information of belief." Thus, under the proposal, sanctions are not only warranted for improper filings which are evaluated at the time of the filing, but may also expand to cover all meritless allegations contained in any filing.

5. Id. 6. Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 111 S. Ct. 992 (1991).

7. Id. 8. Id. 9. Westmoreland v. CBS, Inc., 770 F.2d 1168, 11 74-75 (D.C. Cir. 1985).

10. Pelletier v. Zweifel, 921 F.2d 1465 (11th C ir. 1991 ).

11 . FED. R. EVID. 11 (c ). (emphasis added).

12. Cooter & Gell, 496 U.S. at 393.

13. Id. at 397.

14. Willy v. Coastal Corp, 112 S.Ct. 1076 (1992).

15. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Associated Contractors, Inc., 877 F.2d 938 (11th Cir. 1989) reh 'g den., 888 F.2d 1398 (1989), cert. den., 110 S. Ct. 1133 (1990).

16. Id. at 943.

17. Id. at 941 .

18. Pave/ic & Leflore v. Marvel Entertainm ent Group, 493 U.S. 120 (1989).

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An upcoming Lifestyles of the Rich and Famous episode focuses on former tax attorneys who are waiting out statutes of limitations on yachts in the Bahamas.

Insurance companies are sponsoring Tasseled Loafer day at the ballpark.

*

Hollywood will be unveiling Arnold Schwarzenegger's latest movie The Litigator Terminator.

*

General Foods plans to market hollowed-out lawyers for use as life-sized Pez dispensers.

*

The 80s barroom fad of midget tossing has been replaced by the attorney toss.

Hoping to put a shine on the profession's image, the ABA plans a massive public relations blitz base9 on the slogan: "When Attorneys Are Outlawed Only Outlaws Will Have Attorneys.

C.J . RAPP, Alumnus L'93

Fall• 1993

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An East coast zoological park now admits lawyers to its shark exhibit free of charge; TV commercials bashing lawyers have replaced "Tastes Great-Less Filling"; and there seems to be a new FCC regulation mandating that late-night talk show hosts put at least one lawyer joke in their monologues . Here are some new lawyer-bashing, money making gimmicks you may not have seen:

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Proving Workplace Job Bias After Hicks: The startling increase in the number the 1992-1993 term, and another in a line resolving claims of intentional em ployof employment discrimination suits filed of technical cases that define what a plainment discrimination in disparate treatin recent years makes employment relattiff mu st do to prove em ployment disment cases brought under Title Vll. 5 The ed litigation one of the fastest growing crimination, the High Court re-emphaelements of proof which the plaintiff must areas of civil practice. According to a study meet, as well as the allocation of the bursized, 5-4, in St. Mary's Honor Center v. completed by the Federal Courts Study Hicks, 4 that the burden of proof in emden of production that must follow, were Committee, the number of employment ployment discrimination cases sq uarely first described in the Court's 1973 holding discrimination cases fi led in federal courts rests on the shoulders of the plaintiff. The in McDonnell Douglas Corp. v. Green, 6 increased from 336 in 1970 to 7,613 in court held that even if an employer proand were subsequently extended by Texas 1989-an increase of 2,166 percent, while Dept. of Community Affairs v. Burdine/ vides a dishonest answer in court about during that same period all other civil litiand U.S. Postal Service Board of Governors why an employee was treated less favorably gation increased by 125 percent.1 With the v. Aikens. 6 In McDonnell Douglas, the than others, that alone does not entitle the continued recessionary economy, and its Supreme Court established a " three-step employee to victory. Despite the employassociated downsizings, consolidations, process" for pursuing a case of intentional er's false justifications for the adverse emreductions in force and emergence of the ployment decision, the employee must discrimination: 1) the plaintiff must establish a prima facie case (i.e., the case on its "new" corporate philosophy of "doi ng sti ll prove that there was intentional dismore with fewer people, " the trend in face appears to involve intentional discrimination based on race, gender, religion these statistics is sure to continue. And as crim ination and the complainant will win or national origin, the majority said. if there is no contradictory evidence); 2) very recent evidence of this trend, the Equal Employment Opportunity Comthe employer must articulate a legitimate Proving Employment Discrimination mission projects a total of 86,000 disnon-discriminatory reason for the deciThe Hicks deci sion essentially claric rimination cha rge s for fiscal year sion; and 3) the plaintiff must demonstrate fied the burden of proof framework for that the reason given was not 1993-which would be a recImpact on Employment litigation a credible one-that it was a ord high in the agency's So what do legal practitioners have to say about Hicks? "pretext" for discrimination28-year hi sto ry. 2 " Hicks is clearly a victory for employers, who have become inor, in other words, that the Adding fuel to the fire, creasingly susceptible to unfavorable results in employment litijustifications offered by the recent amendments to Title gation in recent years, especially with the advent of the Civil Rights employer for the decision did VII of the Civil Rights Act of Act of 1991," says Lynn C. Outwater, Managing Partner of the Pittsnot describe the actual or true 1964,3 through passage of the burgh office of Jackson, Lewis, Schnitzler & Krupman, a national reasons for the decision. 9 Civil Rights Act of 1991, now law firm that represents management exclusively in the area of Under the first step, the gives plaintiffs access to manlabor, employment and benefits law. "But it is still too early to plaintiff must first establish, datory jury trial s as well as tell if the decision will result in fewer suits against employers," by a preponderance of the evicompensatory and punitive she said . "If anything, it will probably cause plaintiffs' attorneys dence, a " prima facie" case of damages as high as $300,000. to look for more proof before agreeing to take a bias case against discrimination by showing Th is is a new threat to employtheir employers." that: (i) the employee belongs ers; because with the higher "From a practical standpoint, Hicks makes it more difficult to a protected class; (ii) the stakes involved and increased for a plaintiff to prove that the reasons articulated by an employemployee was qualified for chances for successful lawer were a pretext for unlawful discrimination," commented Joe the position; (iii) the employee suits, employees will be far C. Ashworth, senior litigation partner at Jackson Lewis. "Prior to was adversely affected despite less likely to settle their emHicks, many courts have said that an instruction would be perbeing qualified for the posiployment disputes out of mitted that says to the jury that 'if the plaintiff disproves the reation; and (iv) that the position court. However, it may now sons advanced by the employer then you can draw an inference remai ned open and the embe a bit more difficult for disthat the reasons articulated by the employer are merely a pretext ployer continued to seek apgruntled employees wi th for unlawful discrimination .' " plicants with the plaintiff's claims of job bias to win their "Hicks now makes a significant change that requires courts qualifications. 10 Under the cases against their employers to instruct the jury that if the employer's reasons for the employMcDonnell Douglas scheme, thanks to a major employment decision are disproved by the plaintiff, that will not, in and establishing the prima facie ment rights decision handed of itself, support a conclusion that the employer's action was moticase creates a presumption down by the U.S. Supreme vated by unlawful discrimination. The plaintiff must still prove that that the employer unlawfully Court on June 25, 1993. nevertheless, an unlawful reason motivated the employer to indiscriminated against the emIn clearly the most imtentionally discriminate against the employee," Ashworth said ployee. This presumption portant civil rights case of

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Supreme Court Asks, "Where Is Your Smoking Gun?" places upon the defendant the burden of producing an explanation to rebut the prima facie case-i.e., the burden of produ cing evidence that the adverse employment actions w ere taken " for a legitimate, nondiscriminatory reason. " The defendant must at this point clearly set forth, through admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action .

Burdine and Aikens emphasize that once an employer articulates a legitimate, nondis c riminatory reason for the challenged action, the plaintiff must then be given a fair opportunity to show that the employer's justification is merely a " pretext" for intentional discrimination .

The issue in Hicks was the question left unanswered by Aikens: whether the plaintiff must prevail if he or she proves that the employer's proffered reasons are not the " real reason" for the employment decision.

What Happened in Hicks The respondent Melvin Hicks, a black man, had been employed for six years by St. Mary's Honor Center, fi rst as a corrections officer and then later as shift commander. Hicks enjoyed a sati sfactory employment record until an administrative shake-up left him with a new supervisor and superintendent. He then became the subject of repeated, and increasingly severe, disci plinary actions from his superiors including disciplinary action for the rules violation s of his subordinates. He was then removed from his supervisory position and was eventually fired for threatening his supervisor during a heated exchange of words. Hicks then filed a complaint under Title VII alleging that his demotion and termination were based on his race.

At trial, Hicks made out a prima facie case under the McDonnell Douglas standard. In response, the employer introduced evidence of two legitimate, nondiscriminatory reason s for his dis-

Fallâ&#x20AC;˘ 1993

charge, namely the severity and frequency of the rules infractions by Hicks. The U.S. Di strict Court for the Eastern Di strict of Missouri, in a full bench trial, found that the reasons the employer gave were not the real reasons for Hicks's demotion and discharge. It concluded that Hicks was the only supervi sor disci plined for violations committed by his subordinates; that si milar and even more serious violations committed by Hicks's co-workers w ere either disregarded or treated more leniently; and that his immediate supervisor manufactured the final verbal confrontation in order to provoke Hicks into threatening him.

Nonetheless, the di strict court judge held that Hicks failed to carry his ultimate burden of proving that his race was the determining factor in the employer's deci sion to demote and dismiss him . In short, the court concluded that although Hicks had proven the existence of a crusade to terminate him, he had not proven that the crusade was racially rather than personally motivated.

The Eighth Circuit reversed this decision, on the grounds that "[o]nce [Hicks] proved all of [employers'] proffered reasons for the adverse employment actions to be pretextual , [Hicks] was entitled to judgment as a matter of law." 11 The appeals court reasoned that " [b]ecause all of defe ndant's proffered reason s were discredited, ... defendants were in no better position than if they had remained silent, offering no rebuttal to an established inference that they had unlawfully discriminated against [Hicks] on the basis of his race." 12

The Supreme Court's Decision and Analysis The U.S. Supreme Court reversed the Eighth Circuit's judgment and essentially agreed with the view of the district court, that "something more" was required of the plaintiff than merely showing pretext in order to prevail (the " pretext-plus" requirement). The majority opinion, authored by Justice Scalia and joined by Chief Justice Rehnquist and Justices O 'Connor, Kennedy and Thomas, asserted that the combination of an em-

ployer's false reasons for an adverse employment decision, combined with other evidence, may well result in a plaintiff's prevailing in court, but that an employer may be dishonest or even innocently inco rrect about the reason s for its actions without necessarily having discriminated against the employee.

Justice Scalia rejected the Eighth Circuit's reasoning and said that the employer ce rtainly placed itself in a better position by producing evidence (whether persuasive or not) of nondiscriminatory reasons for the action than had it remained si lent, becau se it sustained the burden of production to rebut the prima facie case. He points out that the determination that the employer has met its burden of production, and has thus rebutted any legal presumption of intentional di scrimination, should involve no credibility assessment of the employer's articulated reasons . The presumption merely fulfills the role of forcing the defendant to come forward with some response, whatever its persuasive effect. Justice Scalia makes it clear that there should be no credibility assessment of these reasons because the burden of production determination precedes the credibility assessment phase. He said that once the defendant succeeds in carrying its burden of production, then the McDonnell Douglas framework, with its presumptions and burdens, is no longer relevant and that to resurrect it later "flies in the face of our holding in Burdine, that to rebut the presumption the defendant need not persuade the court that it was actually motivated by the proffered reasons. " 1 3 After the employer rebuts the prima facie case, the trier of fact at this point must proceed directly to the ultimate question: whether the plaintiff has proven that the employer intentionally discriminated against him . While the Court said rejection of the employer's proffered reasons will permit the fact finder to infer the ultimate question of intentional discrimination and that upon rejection of the reasons no additional proof of discrimination is actually required, Justice Scalia said that

the Court of Appeals was simply wrong in holding that rejection of the proffered reasons compels judgment for the plaintiff.

He explained that this approach , "[d]isregards the fundamental principle of [Federal Rules of Evidence] Rule 301 that a

To say that the company . .. or even the employee himself... becomes a liar and a perjurer when the testimony is not believed is nothing short of absurd.

presumption does not shift the burden of proof, and ignores our repeated admonition that the Title VII plaintiff at all times bears the ultimate burden of persuasion ."14 Scalia and Souter Clash

The decision sparked a volley of critical words between Justice Scalia and Justice Souter, author of the dissent, probably because both sides seemed so entrenched in their conviction that their own reading of the prior cases was so obviously correct. A frustrated Justice Souter, in describing the majority opinion, said that he knew of " [n]o other scheme for structuring a legal action that, on its own terms, requires a party to lie in order to prevail." 15 Justice Scalia, in a cutting retort, said of the dissent, "To say that the company ... or even the testifying employee himself on behalf of the employer, becomes a liar and a perjurer when the testimony is not believed, is nothing short of absurd." 16 An understanding of the core of this

disagreement provides insight into what exactly the Hicks court meant about the plaintiff's burden of proof. Central to this issue is a statement made in Burdine which follows the Court's delineation that the plaintiff must have the opportunity to show that the employer's reasons for the adverse decision were pretextual. The Burdine court then went on to say that the plaintiff's burden "[n]ow merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination."1 7 The majority clearly viewed this statement as meaning that the plaintiff still continues to carry the ultimate burden of proving intentional discrimination, even though the employer's reasons were pretextual. The majority said proving pretext may be of help in showing the fact finder that the real reasons for the action were discriminatory, but pretextual reasons alone should not be determinative.

The dissenting justices viewed the majority as trying to rewrite Burdine, and Justice Souter, in emphasizing the unfairness of it all, said that the employer should be bound by its choice of factual explanation. He argued that if this was not the case and the fact finder could rely on areason not even put forward, then it would be unfair and utterly impractical to saddle the victims of discrimination with the burden of either producing direct evidence of discriminatory intent, or eliminating the entire universe of possible nondiscriminatory reasons that the fact finder might find lurking in the record. His argument centers on the need for a practical procedure for addressing what Burdine calls indirect proof, stating that such a procedure is "crucial to the success of most Title VII claims, for the simple reason that employers who discriminate are not likely to announce their discriminatory motive." 18 Which is the Better Argument?

Justice Scalia at first seems to have the better argument, particularly when he points out that merging proof of pretext with proof of actual discrimination would be a merger in which "[t]he little fish swallows the big one." 19 He supports this by arguing that the merger statement in Burdine is dictum, and that it contradicts McDonnell Douglas and its progeny in that the Court has never said that all the plaintiff needed to do to prevail was to dis-

prove the employer's proffered reason s.

Unfortunately, the majority provides no meaningful guidance as to how a plaintiff must now actually prove intentional workplace discrimination .

Justice Souter's argument is compelling from the standpoint of justice, fairness and practicality. His argument emphasizes the " human dynamics" involved in the employment relationship, and the practical difficulties a plaintiff has in proving a case.

But determining which argument is better really depends on the reader's viewpoint of the employment relationship. If you are a firm believer in the "at-will" employment doctrine, then, like Justice Scalia, you really don't see the contract of employment as containing an implicit promise of fairness. Your concern is that the employer should not discriminate for unlawful reasons, and that it may be completely "acceptable" to discriminate, as long as the reasons (like the personal animosity described in Hicks) are not prohibited by statute. On the other hand, if you adhere to the belief that an employee should not be terminated except for " just cause," a view Justice Souter seems to follow, fairness becomes an important consideration when examining any employee discharge. This belief sees Title VII in a much broader context, as summed up in the final sentence of the dissent when Justice Souter says that he sees "[n]o reason why Title VII interpretation should be driven by concern for employers who are too ashamed to be honest in court, at the expense of victims of discrimination who do not happen to have direct evidence of discriminatory intent." 20 Is the outcry following the Hicks decision really justified? Circumstantial evidence of job bias may certainly suggest racial or other types of unlawful discrimination, but it clearly does not establish it conclusively. To assign guilt to an employer simply because the reasons for the employment decision are not believed by the jury without retaining the plaintiff's ultimate burden of proving discriminatory intent by the employer makes little sense and goes against the fundamental principles of our rules of civil practice that a presumption does not shift the ultimate burden of proof. The Supreme Court simply recognizes in Hicks that it does not have the authority to impose liability on

Juris

an employer for alleged di sc riminatory employment practices unless t he fact finder determi nes that the employer has, in fact, unlawfully discriminated.

If Melvin Hicks was fired because of the personal rather than racial animus of his former employer, then he was sti ll a victim of injustice. But Hicks was specific in his charge that he was a victim of racial discrimination by his employer. Because of the specificity in his allegations, the evidence of the guilt of hi s em ployer on the issue of racial di scrimination should be conclu sive. To require less would be an inj ustice to hi s employer.

But all is not lost for Melvin Hicks .

Because neither parties nor the district court had a "full and fair opportunity" to apply the Supreme Court's newly clarified analytical scheme to the case, the case has been remanded for further co nsideration. 23 In particular, the district court may

decide to hold an evidentiary hearing to permit the parties to present additional evidence on the issue of personal animosity. If H icks can demonstrate that his employer's decisions agai nst him were not motivated by personal animosity or if so, that the personal animosity was itself racially motivated, then he should prevail in his Title VII claims.

While the Hicks decision could lead to a greater em phasis on the need for direct evidence for a plaintiff to prevail , at a minimum the decision will place a greater burden on district court judges in evaluating cases at the summary judgment phase. Furthermore, the decision will definitely requ ire judges to take a more active role to ensure that what juries do is consistent with the law. The aftermath and debate over whether the Hicks decision actually gives judges proper guidance underscores the difficulty the Supreme

The Debate Following Before the ink was dry on the Hicks opinion, employee advocacy groups were labeling the decision as "pro-management" and unfair to employees, while management attorneys were commenting that the decision was fair, given recent employee gains in the legislative arena. "Hicks is clearly a victory for employers, who have become increasingly susceptible to unfavorable results in employment litigation in recent years, especially with the advent of the Civil Rights Act of 1991," says Lynn C. Outwater, Managing Partner of the Pittsburgh office of Jackson, Lewis, Schnitzler & Krupman, a national law firm that represents management exclusively in the area of labor, employment and benefits law. " But it is still too early to tell if the decision will result in fewer suits against employers," she said. " If anything, it will probably cause plaintiffs' attorneys to look for more proof before agreeing to take a bias case against their employers."

Civil rights advocates have called the decision "a giant step backward " because they feel that since discrimination is far more subtle today than in the past, then it is going to be very difficult for a plaintiff to get evidence of intentional discriminatory practices. 21 Some employee advocates, like Mario Moreno, regional counsel for the Mexican American Legal Defense Fund, say that the " pretext-plus" requirement "can only mean something along the lines of a smoking gun " due to the difficulty employees will have in finding direct evidence. 22 And these concerns have not gone unheard. Congress has already taken the first steps to overturn the Hicks decision. On July 28, 1993, Rep. David Mann (DOhio) introduced legislation to reverse the decision. Under Mann 's bill, HR 2787, a Title VII plaintiff complaining of disparate treatment would prevail if he or she establishes a prima facie case of an unlawful employment practice, and the defendant employer either fails to rebut that evidence or the plaintiff is able to show that each of the purported non-discriminatory reasons for the employment decision is not true. The bill has been referred to the House Education and Labor Committee. Sen. Howard Metzenbaum (D-Ohio) has also pledged to introduce similar legislation in the Senate.

Fall路 1993

Court has had in articulating a tru ly workable framewo rk for determining just what an employee really needs to do to win an employment discrimination case.

STEVE WIRTH , third year day

References 1. Federal Courts Study Committee Repo rt, ci ted in 5 Daily Labor Repo rt (BNA), Jan. 8, 1990, at A-3.

2. News Briefs, 20 Pension and Benefits Rep. (BNA) No. 33, at 1780 (Au g. 16, 1993).

3. Title VI I renders it unlawful " fo r an employer . . . to fail or refu se to hire or to di scharge any individual, o r otherwi se to di scriminate against any individual with res pect to his compensation, term s, conditio ns, o r privil eges of employment, because o f such individual ' s race, color, religion, sex, or national o rig in." 42 U.S.C. 搂 2000e-2(a)(1) .

4. St. Mary's Ho nor Center v. Hicks, 113 S.Ct . 2742 (1993) .

5. " Disparate treatment" is one of two concepts that have emerged as a result o f Supreme Court decisions involving employer lia bility for di scri minato ry empl oyment p rocedures. In a disparate treatment case, an employer is charged with i ntentionally treating some people (u sually an individual or small group o f people sim ilarly situated) less favo rably than o thers becau se they are a member of a group protected by the ci vil rights laws. O n the other hand , a " disparate impact " case involves facially neutral employment procedures that have an adverse effect on the employment opportunities of the protected gro up as a whole.

6. M cDonnell Do ug las Co rp. v. Green, 411 U.S. 792 (1973).

7. Texas Dept. o f Co mmuni ty A ffa irs v. Burdine, 450 U. S. 248 (1981).

8. U. S. Postal Service Board of Govern ors v. Ai kens, 460 U.S. 711 (1983).

9. The same process, as well as the Hicks decision, applies to age discriminati on cases brought under the Age Di scrimination in Employment Act (ADEA).

10. McDo nnell Douglas, 411 U .S. at 802-05.

11 . Hicks v. St. Mary's Honor Center, 970 F.2d 487, 492 (8th Cir. 1992).

12. Id. 13. Hicks, 113 S. Ct. at 2749.

14. Id. 15. Id. at 2764.

16. Id. at 2754.

17. Burdine, 450 U.S. at 256.

18. Hicks, 113 S. Ct. at 2762.

19. Id. at 2752.

20. Id. at 2766.

21. Legislatio n to Overturn, Debate Follow Hicks Decision, Fair Employment Practices New sletter (BNA), July 19, 1993.

22. Id. 23. Hicks v. St. Mary's Honor Center, No. 91-1571, 1993 WL 328901 (8th Cir., Aug. 16, 1993).

Imagine that you had to live everyday of your life continuously glancing over your shoulder, carefully screening each of your telephone calls, repetitively checking the images in your rear-view mirror, selectively choosing each public place you enter, and while there, maintaining a constant awareness of each person around you . For some people this compulsive behavior has become a part of their lives because they suffer from mental infirmities.

However, for thousands of people, of varying ages, races and backgrounds, this type of behavior is a necessary reality. As a matter of fact, until House Bill 2346 was enacted as Act 28of1993 and approved on June 28, 1993, these " defensive measures" were the only real protection available for victims of stalkers in Pennsylvania.

Although stalking, and its often unpleasant consequences, has been a problem in the United States for years, it did not receive national attention until 1989 when actress Rebecca Schaeffer was fatally shot outside her home in California by a disgruntled fan . Subsequent to this tragic event, five women, also residing in California were murdered by former husbands or boyfriends. California recognized that something needed to be done, and its legislature responded in 1990 by passing the first anti-stalking legislation.

Similar stories prompted the legislatures of Kentucky, Virginia, Florida, West Virginia, Ohio, Wisconsin, Maryland, and most recently, Pennsylvania to pass antistalking laws. In all, a total of 28 states have conceded that stalking is a serious problem that requires urgent attention, and they have therefore, either enacted or are considering the enactment of antistalking laws. 1 Numerous accounts of stalking and harassment, that have ended in homicide have been reported in the Pennsylvania news in the past several years. Law enforcement officials attributed these homicides to a lack of stringent statutory authority permitting their prompt intervention into the matter. It is expected that House Bill 2346 will fill this void and provide law enforcement officials with the necessary tools to adequately restrain stalkers, and thus prevent homicidal con-

clusions to these tales of harassment. In its amended form , House Bill 2346 clearly defines the terms associated with stalking, upgrades the penalties for stalking and its related offenses and expands the scope and enforcement of victim/witness protective orders.

The Pennsylvania legislature has concluded that the crime of stalking has been committed if, while intending to place a person in reasonable fear of bodily injury, or causing that individual to suffer substantial emotional distress, a person engages in a course of conduct or repeatedly commits acts toward another individual. Included in these "acts" is the following of that person without proper authority to do so. Commission of such an act is considered a misdemeanor of the first degree; however, if the commission is a second or subsequent offense, or is an action subsequent to a conviction for any crime of violence toward the same person or persons, then the offense shall constitute a felony of the third degree. The legislature further concluded that an individual has committed the crime of harassment, a summary offense, when

that person intentionally threatens, attempts or makes physical contact with another person . An individual is likewise guilty of harassment if he follows another person, or engages in repetitive conduct that serves no legitimate purpose and seriously annoys the object of such action. It is important to note that the current legislation has made a provision to protect those wrongly accused of the abovementioned crimes. Specifically, the legislation establishes that anyone who intends to implicate a person and knowingly gives false information to a law enforcement official is guilty of an offense.2 Any Pennsylvania court with jurisdiction over criminal matters may, at its discretion and subsequent to a hearing on the matter, issue protective orders. Such orders may include instructions prohibiting any activities by the accused or a witness related to harassment and/or stalking.

A defendant may be commanded to maintain a specific geographic distance between himself/herself and a victim or witness, and may furthermore, be directed to cease all communication (except that which may be conducted through repre-

Juris

sentative counsel) with a victim or specified witness. 3 As a matter of safety, the current legislation directs that any orders issued by the court must be headed by a notice in large print that instructs a witness or victim to immediately call the police at the given phone number if the protective order has been violated'. 4 In addition to the granting of orders, the court may authorize any consent agreement that promotes the cessation of abuse of the victim. 5 If conduct violative of the protective order occurs, the person responsible for the conduct may be held in contempt by the issuing court. Punishment for order violations may also take the form of revocation of any pretrial release, or forfeiture of bail and the issuance of a bench warrant for the accused's arrest or remanding the accused into custody. The revocation provision is applicable whether the accused actually committed or simply caused or encouraged the violation .

In the event of an order violation, an arrest may be made without warrant upon probable cause even if the violation was not committed in the view of law enforcement personnel. The existence of an order may be verified by law enforcement officer through telephone or radio communication . Once the arrest has taken place, the accused is to be taken without unnecessary delay before the court that issued the order. If the issuing court is unavailable, then in accordance with the Pennsylvania Rules of Criminal procedure, arraignment shall take place before a district justice or, in cities of the first class, a municipal court judge. 6 Now that the statutory language has been examined, it is helpful to discuss the type of situation in which the laws will be applied . Stalking is a method of coercive control by which a person attempts to establish or re-establish control over an individual. Often the "control object" is an intimate partner or spouse. A study on homicide conducted in Philadelphia revealed that 25 percent of the men who killed their female partners were separated or divorced from their victims, and another 25 percent of the women killed were women attempting to end their

Fallโ ข 1993

current relationships.7 There are also many instances where the person who has been chosen as a target has never reciprocated any attention and/or affection toward the stalker.

A majority of stalking incidents are classified as domestic violence. Unfor-

Anti-Stalking legislation provides a vehicle for interrupting the obsessive, desperate, escalating conduct of stalking before it erupts into lethal violence . ... tunately, tradition has dictated that what occurs in the home is a private matter for resolution by the family members themselves. It must be recognized that some domestic violence rises to the level of serious criminal behavior, and therefore, must be treated as such. To this end, police, prosecutors, the judiciary, and society as a whole must be made aware of the predatory and escalating nature of stalking and view its commission as a serious crime. It is only in this instance that the safeguards of the current legislation can truly be appreciated . Anti-stalking legislation provides a vehicle for interrupting the obsessive, desperate, escalating conduct of stalking before it erupts into lethal violence, but before the interruption can occur, the crime must be recognized and the laws concerning it enforced.

Aproximately one-third of the perpetrators commit further offenses while in the pre-trial phase of the criminal process.

Thus, protective orders are necessary to provide refuge for victims and witnesses.

The issuance of orders, and the duty of law enforcement officials to enforce such orders, empowers the police to take decisive

action at the first sign that an accused is not complying with court instructions.

Another facet of intervention is the fact that stalkers often take their own life.

Data from around the country disclosed that 33 percent of those who killed their partners or spouses also killed themselves.

Although stalkers become psychologically trapped by their obsession with their victims, they can be assisted in beginning the process of divestiture if they can be stopped before they perform lethal assaults.

House Bill 2346 requires the obsessed stalker to confront the criminal nature of his conduct, and it safeguards victims and witnesses who are the intended objects of the stalker's conduct. The early intervention focus of anti-stalking legislation has begun to fill the gaps in the existing statutory laws. It is no longer the policy of this commonwealth that people obsessed with other individuals will be permitted to terrorize them . The statutory provisions of House Bill 2346 articulate our legislature's commitment to the premise that the citizenry of Pennsylvania must be free of the intrusive, terrorizing, violent behavior exhibited by those obsessed with certain individuals and their lives. Our state's lawyers, district attorneys, law enforcement officials and citizenry now have the authority and the ability to deal with the heinou s crime of stalking and its related conduct as a serious criminal offense.

TERRI L. TAYLOR,

third year da y

References 1. Richard A. Rosen, On Self-Defense, Imm inence and Women Who Kill Th eir Batterers, 71 N .C. L. REV. 371 , 397 (1993).

2. 18 PA. CONS. STAT. ยง 2709 (1993).

3. 18 PA. CONS. STAT. ยง 4954 (1993).

4. 18 PA. C O NS. STAT. ยง 4954.1 (1993).

5. 23 PA. CONS. STAT. ยง 6108(a)(9) (1993).

6. 18 PA. CONS. STAT. ยง 4955 (1993).

7. N. Casanave & M . Zahn, Women, Murder and Male Domination: Police Reports of Domestic Homicide in Chicago and Philadelphia. A pape r presented at the Annual Meeting of Am eri can Society of Criminology, Atlanta, O ctober 31 , 1986.

ED

Tomorrow's Town Square Many of you have an outstanding resource with which to engage in discussion about current legal issues, or to find information about a specific or general legal topic, and you may not be aware it even exists. This tool probably sits right on your desk and is used for many other purposes. This tool, can enable you to discuss legal issues with attorneys from all over the world at little or no cost. The tool I' m talking about, of course, is that embodiment of the Age of Informationthe computer.

We are all familiar with WESTLAW® and LEXIS®. They are both wonderful services from which to get factual information, citations, current law, news, background information, etc. Many references discuss all of the amazing things that can be done with those databases. But those services are expensive and do not allow for interaction or the practicing of the skill of discussion/argument with a fellow human being. We all know that di scuss ing a topic with someone who is knowledgeable in that area will often result in bringing new angles to light or will open a perspective that was previously closed. This option is not available with the two big services. However, WESTLAW® and LEXIS® are not the only services accessible through your computer. Many other services are available that,

• •

while not as large or versatile, offer useful features that can supplement the more expensive services at very little cost. What I'm talking about is computer bulletin board systems (BBSs).

A BBS is a " logical " meeting place for computer users accessed via telephone lines. A simple BBS is likely to be operated by one individual, the system operator (sysop), on one computer out of his/her home. It is likely to have some games that can be played while on-line and may even provide for competition between users.

These games can range from simple trivia, dice, and card games, to complex roleplaying and strategy games that can take many hours to master.

Generally, a BBS has a file area from which a user can download copies of files.

To " download " a file is to transfer a copy of the file from the BBS to the user's mach ine. These files might contain games to play on your machine, word processing programs or programming languages.

In fact, almost every type of computer program/file imaginable is available through BBSs (I even found one to write your own will-it didn 't help me in Estates & Trusts class). Another feature, which is available on most BBSs, is a file that lists other BBSs in the same area. Additionally, there may be files that list BBSs for a specific area code. If you cannot find these files, ask the sysop for assistance. An operator is usually glad to help.

Most of the files on a BBS contain shareware which has been transferred between BBSs throughout the world .

"S hareware" is a type of computer program that permits the user to try the program before purchasing it. If it is a program you desire to have, then you mu st pay the author for the program . You are not under any obligation; if you do not like the program you do not have to purchase it.

But if you do not purchase the program before the trial period expires, you must then delete it. Otherwise, copyright issues enter in.

Thi s would be an appropriate time to insert a word of caution. Downloading copies of files from a BBS is one of the ways in which computer viruses are transmitted. Some viruses have been intentionally spread through these services, although most are just inadvertently transmitted by careless users. So, once you have downloaded a program, it should be checked for viruses, just as you should check any other new program prior to use.

A BBS usually has a message area.

On a simple BBS, this message area is likely limited to exchanging messages only between the users of that specific BBS. Through some BBSs, however, one or more worldwide message networks are available. These networks allow the user in one city to " post" a message in an area of specific interest and then have the message relayed to all BBSs across the world that are connected to that particular network and carry that specific interest area.

The message can then be read by potentially hundreds, thousands, millions and trillions (okay, maybe not quite that many) of people across the world . If someone wishes to respond to the message, the reply is routed to the original BBS from which the message was generated, and then " delivered " to the message originator the next time he logs on the BBS after the reply message has been routed . Public messages are also available for each user to read and reply to, if something catches his/her eye. As a result, some very interesting issues become the topics in a forum that is open for discussion.

Private messages can be transmitted between parties who may live thousands of miles apart. It should be noted, however, that any message that is sent by this method is not truly private. Each in-

Juris

terest area usually has a moderator or system operator who has access to all messages that are transmitted through that area. Private in this instance means that John Q. Public will not have access to the message.

One message network of specific interest to lawyers is called RelayNet™ International Message Exchange (RIME).

RIME contains interest areas called "conferences." One such conference is named "legal." This conference is described as: " Discussion of topical legal issues with some focus on computers, but all legal arenas are welcomed and encouraged .

Host presents users with current legal questions, encourages discussions which are followed by extended factual information. Host also prepares position papers which are generally available to the network."1 The term "host" as used in this context refers to the moderator or facilitator who is often a part of a conference.

The activity in the legal conference consists of approximately 30 to 60 messages per day. 2 RIME carries more than 400 conferences, ranging from animal rights to WordPerfect®, and including conferences such as beer (a discussion of home brewing of beers and of beers in general), Disney (all things Disney), and geo-political international relations (multi-faceted discussions involving politics, religion, etc.) .

Other communications networks are available, many of which carry areas of specific legal interest. Some of these networks are INTERNET, COMPUSERVE®, ILINK, SMARTNET, INTERLEC, and RUSHNET (this one is dedicated to discussions of issues raised by or related to Rush Limbaugh). Not all BBSs are connected to all networks, or even carry all of the interest areas in a particular network. The amount of information that is available is just too vast, and carrying these areas can be quite expensive.

Okay, so how do you tap into this vast store of knowledge and resources? If you use WESTLAW® or LEXIS®, you al-

ready have a modem installed in your computer. That is all the hardware you need. You will, however, need a telephone number to call and a communications program that will enable you to interact with the BBS. I use Qmodem™, a shareware program, but there are many others available, either as shareware or from software retailers. While each program is different, all allow you to dial a telephone number and connect with the computer at the other end. A local Pittsburgh BBS which is connected to RIME (with the " legal" conference) and some other networks, carries on-line games and has more than four gigabytes of available files, is The Dew Drop Inn (854-0619).

So how much does this cost? You already have the computer and the modem -no extra cost there. The communications software is fairly inexpen sive; it is usually less than $100 depending on the software you choose. If you decide to use shareware, you may try the software first and find one you like before you pay for it. Some public domain communications packages that do not cost anything also are available, even if you decide to keep them. However, these programs are usually less versatile than the retail or shareware programs. Some of the services, such as COMPUSERVE®, charge a flat rate and also charge by the minute.

These charges may differ, depending on which options you choose. But by far, the easiest and most inexpensive way to access these networks is through your local BBS. Most BBSs are free, but often limit access if you do not subscribe to that BBS. Since most BBSs only have one phone line, it is only fair that subscribers receive an enhanced level of access, which translates to the amount of time available, the number of files that can be downloaded and the number of available electronic mail interest areas. Subscription rates are very reasonable; the Dew Drop Inn BBS charges sub-

scribers between $25 and $50 per year.

This is significantly less expensive than WESTLAW® or LEXIS®. Each of the BBS sysops must pay to connect to networks and the subscription charges help to offset these costs. Very few sysops make any profit from their BBSs. So, if you have a little time and want to explore a resource that is not available through the " regular" legal computer databases, give your local BBS a call and ask if they have any electronic mail networks with a legal interest area. If there is such a network available, but you can not find the legal area, ask the sysop to get that area. Usually, he/she will be more than happy to help out. By exploring these worldwide networks, you just might encounter a helpful resource, reference or perspective that you would not have found otherwise. Although the amount of data is not nearly as vast as that available through other services, it is not as expensive either. As you can see the world of BBSs can be informative, inexpensive and just plain fun to explore.

WARREN HAINES, third year evening References 1. RelayNet™ Conference List, July 17, 1992.

2. Id.

Fall• 1993

at the side bar II

JURIS DICTIONARY

ACTIVITY FEE: The fee payable by all law school students so undergrads who have free time can enjoy sporting events and concerts . This is particularly galling to night crawlers ; but it pisses off day babies as well.

JAMES

M.

RARICK,

COURTROOM DEMEANOR : Wear a suit and never wake up the judge. Shine your shoes. See LAW SCHOOL COFFEE. LAW SCHOOL COFFEE: One drop of ii on your shoe& you won't have to shine them for a year.

STARE DECISIS: Most folks refer to this as "precedent." It means a judge is unwilling to make a legal decision different from those of his brethren or sistren; even when the original decision maker has been dead for hundreds of year& . It Is generally not known, but this indicates what some suspect: judges are lazier than law professors.

After all, why do the work of making a decision today, when an assize in medieval England did the work for all time? This is why the law involving the U.S. Steel building Is a direct extension of ancient English Shire law.

For&ooth? Legal &cholar& have been &een examining cave paintings In search of the ultimate stare decisis.

third year evening

NEWS ITEM: In an effort to combat a poor press image tht the legal profession has aquired. (And also to capitalize on the wild success of PBS's children's shows Barney and Mr. Roger's Neighborhood .) The ABA has created a new duo of children's programs to teach about the profession.

Meet "Arney" the other purple dinosaur

Kids! l'ts time for a visit to Mr. Buckley's Neighborhood of Litigation

I sue you, you sue me We're a litigious family With a great big settlement that I'll get for you You can go to law school too!

Has anyone ever bothered you?

Called you names or stepped on your shoe?

We'll make'em pay We'll make'em pay Let me be you lawyer!

I've always wanted to have a client just like you!

I've always wanted to earn some extra cash for you!

So let's make the most of an unfortunate day They have the cash, but I have a way!

We'll make'em pay We'll make'em pay Let me be your lawyer Won't you please?

Won't you please?

Please let me be, your lawyer.

Can you say 40% boys and girls?

JAYME DEIBLER, JERRY YANNITY,

m

Second year day Second year day

Juris

I Passed! I Passed! I Passed!

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