John M. Harlan Louis D. Brandeis  Louisville Law Examiner Serving the University of Louisville Law School Community Volume 3 Number 6 Louisville, Kentucky, February 7, 1978 Circulation 3700 Journal Editors Chosen 
by Mark Little 
Dan Fuller, editor-in-chief of the 
Journal of Family Law, has announced the selection of the board of editors for the
 1978-1979 term. They are Steven Berg,
 Editor-in-Chief; Nancy Keene Laurin, 
Executive Editor; Peggy Lyndrup, Articles 
Editor; and Nancy Gall-Clayton, Katie
 Daugherty, Sally Noyes, and Phil Warf, N
otes Editors.
 The selection of the board of editors was
 made a month earlier than last year. Dan 
Fuller felt this would "ensure that the
Journal continues to function as smoothly 
as possible during the change of administration
 and to allow the new editor 
the opportunity to 'learn the ropes' by 
relying on the assistance of the present
 editors." According to Mr. Fuller, the new 
editor-in-chief was selected from seven 
highly qualified members who had completed 
the rigorous requirements of the
candidate program. In addition, a detailed
criteria was employed by the present board
in their selection which included: each
candidate's writing ability, leadership
ability, diligence, outside responsibilities,
grades, and "the Board's estimation of the
candidate's ability to successfully serve in
the editorial capacity." Mr. Fuller an­ticipates
that Steve Berg, in conjunction
with the rest of the editorial board who were
chosen in a similar manner, will assume
full editorial responsibility by mid-semester
with the present board "being the 'elder
statesmen' of the Journal after that point."
Mr. Berg was pleased that the selection
process was earlier and felt that it would
help ensure a smoother transition period.
He said that the new board's first duty will
be to complete the last issue of the Journal
with Dan Fuller. Mr. Berg did anticipate a
few problems as both the managing editor
and associate editor positions remain
unfilled at this time. However, he said that
"we'll just have to all pitch in and help in
these areas."
The next duty of the new board will be to
plan the selection of the new candidates.
While Mr. Berg was not sure at this time
the exact process that will be used, he did
feel that they "would change it in ways that
is offering a cooperative summer school seminar at England's University of Leeds
this year. See story on page 3.
Newly selected editors of the Journal of Family Law: seated, left to right are Nancy Keene Laurin,
Steve Berg, Katie Daugherty. Standing: Phil Warf, Peggy Lyndrup, and Sally Noyes. Not pic­tured:
Nancy GaD-Clayton.
the candidates will like, such as speeding up
the entire process." In the past, selection
for the Journal has taken place late in the
year, with students being evaluated on the
basis of a writing sample and academic
standing.
Second year students will be eligible for
selection this year as well as first year
students. A detailed explanation of the
writing sample and candidate program will
be made available at a later date.
ABA Conv.ention to Discuss
Broad Range of Issues
ADA-Chicago
Issues ranging from family violence to
the proposed Panama Canal treaty will be
discussed during the American Bar Asso­ciation's
midyear meeting in New Orleans
Feb. 8-15.
The more than 2,500 lawyers and judges
expected to attend the meeting of the ABA
and several of its affiliates will hear Chief
Justice Warren E. Burger make his annual
"Report on the State of the Judiciary" on
Sunday, Feb. 12.
Other major speakers will include
Patricia R. Harris, secretary of the
Department of Housing and Urban
Development; U.S. Sens. Birch Bayh (D­Ind.)
and Dennis DeConcini (D-Ariz.);
Warren M. Christopher, deputy secretary
of state and Benjamin R. Civiletti, nominee
for deputy attorney general.
ABA President Wm. B. Spann, Jr.,
Atlanta, said every effort had been made to
"make this one of the most interesting and
productive midyear meetings we've ever
had." Pointing out that the ABA is ob­serving
its Centennial Year, Spann said the
Association is approaching the 230,000-
mark in membership - further increasing
its status as the largest voluntary dues­paying
organization in the world.
A host of potentially controversial
issues, including the Panama Canal treaty,
will confront the 365-member, policy­making
House of Delegates when
Chairman Stanley M. Brown, Manchester,
N.H., calls members into session Monday,
Feb. 13.
Other major issues scheduled for House
consideration include "right-to-die" and .
"living will" legislation, establishment of
an international criminal court to deal with
such issues as airline hijacking, employer
discrimination against expectant mothers,
judicial discipline, sunset legislation and
child stealing by parents.
The meeting opens Wednesday, Feb. 8,
with a meeting of the ABA's 22-member
Board of Governors in the Fairmont Hotel
and a council session of the National
Association of Bar Executives, an affiliate,
in the Hyatt-Regency.
On Thursday, Feb. 9, the Board of
Governors continues deliberations as will
the NABE and the Council of the National
Conference of Bar Presidents, headed by
Mark I. Harrison, Phoenix.
Another affiliate, the Conference of
Chief Justices, will open a three-day
meeting in the Maison Dupuy Hotel with
panels on "State-Federal Relations" and
"Alternatives to Judicial Process." Ohio
Chief Justice C. William O'Neill is con­ference
chairman.
The ABA's Criminal Justice Section
Council will meet Thursday and Friday,
Feb. 9 and 10, to consider such matters as
proposed juvenile justice standards, family
violence, victim intimidation, the legal
status of prisoners, special gran4 juries and
tort immunity for police officers.
The Board of Governors will conclude its
deliberations Friday and Spann will report
on the board's activities, and other mat­ters,
at a news conference Friday af­ternoon.
Chief Justice James Duke Cameron of
Arizona and University of Michigan Law
Prof. Paul D. Carrington will discuss
(Continued on page 6)
2 Louisville Law Examiner, February 7, 1978
itouisuillt ljaw 1Examiner
lB.
miTORIAL BOARD
Kenneth W. Golliher, Editor-in-Chief
Christopher P. Rivers, Managing Editor
Valerie Salven, Associate Editor
Jeannie Baker, Associate Editor
Alan Parsons, Business Manager
Judge MARLIN M. VOLZ, Advisor
46
STAFF
Kevin CaUahan, News Editor
Christopher Seaman, Projects Editor
Susan Barnett, Articles Editor
Stephen Wolford, Brandeis Brief Editor
Jerome A. Mirabito, Executive Editor
Steve Arnett
Mark Little
Rookie Medaris
Phillip R. Warf
Sherry Willman
GreggYopp
Professor ALBERT T. QUICK, Consultant
The Louisville Law Exilminer is published nine times during the academic year in the interest
of the University of Louisville Law School community. Unsigned editorial opinions are those
representing a majority vote of the editorial board and do not necessarily express the views of
the School of Law or tbe University of Louisville.
Address aU communications to the Louisville Law Exilminer, School of Law, University of
Louisville, Louisville, Kentucky 40208. Phone 502-588-6399.
Editorials
W citing Deficiency Dictates
Need for Courses
The absence of an adequate legal writing
program at this law school was a serious
problem in past years. ow, with the in­ception
of the Basic Legal Skills or
freshman wntmg course, the ad­ministration
has made a substantial ad­vance
in giving students an opportunity to
cultivate an essential legal skill. However,
this advance falls short of what's
necessary.
Upperclassmen who would like to refine
their writing skills or gain experience in
areas other than brief and memorandum
writing have only one alternative, the
seminar on Written Advocacy. Two sec­tions
of this course were offered this
semester, both were filled and one was over
subscribed to the extent that an additional
section had to be created.
Filling the Law School's writing
requirement is not the objective of several
of the students taking the writing seminars;
they have already turned in their glorified
graduate papers in earlier seminars. Some
of these people would simply like to learn
how to write well.
In addition to the students' actual desire
to improve themselves, there is the fact that
many of the people graduating from law
school are markedly deficient in writing
skills. Every member of the State Board of
Bar Examiners and many law school
faculty members will openly attest to this
situation. It accomplishes nothing to say
that this is not a problem generated by the
Law School if it is indeed a problem which
the Law School tolerates.
The writing seminars can be useful to all
law students, no matter what their areas of
interest. Hopefully the proposed pre­registration
procedure for future semesters
will be constructed in such a way that
students can demonstrate that such
seminars should be offered every semester.
There may even be a market for offering
more advanced or more highly specialized
writing seminars.
No one has underscored the need for
competent legal writers more matter-of­factly
than Judge Stuart Lampe, "You can
know all of the law in the world and if you
can't express yourself, either in writing or
on your· feet, you can't do much."
The Parameters of Chivalry
Chivalry has reared its ugly head at the
William Mitchell College of Law in St.
Paul, Minnesota.
According to the law school newspaper
there, the Opinion, WMCL's SBA passed
resolutions supporting "Operation
Whistles top," a parking and escort plan
for female law students. One aspect of the
plan was a change in the designation of ad­jacent
parking lots (previously reserved for
seniors), restricting their use to female law
students.
Luckily, Dan Butler (a senior) realized
the disgustingly discriminatory intent of
such a move and filed a formal protest with
the school's hearing qfficer for sex
discrimination complaints.
In an open letter to the SBA, the ad­ministration
and the student body at
WMCL Mr. Butler urged those members of
the student body " ... who are neither
'bleeding heart liberals' nor totally
oblivious to the world around (them) to
consider whether the SBA is providing any
representation for the majority of the stu­dent
body at William and Mitchell."
Among a list of seven objectionable prac­tices
cited in the letter was the SBA's
"(d)isc:rimination in the form of special
protection of minority interests, real or
imagined, without sufficient substantiated
justification (and) the improper use of
funds paid by the student body as a whole
to support said special protection of
minority interests."
Although the original discrimination
hearing established that the SBA resolu­tions
should stand, Mr. Butler was un­satisfied.
He is taking his case to court.
Brandeis Brief
Obscenity-Pornography Series
What Are the Effects
of Pornography?
Dr. Lipton was a member of the Presidential Commission on Obscenity and
Pornography, and is credited with the final drafting of the Effects Panel's report.
He is Director of the Biological Sciences Research Center of the Child Development
Institute, University of North Carolina at Chapel Hill. Dr. Lipton has served as
Chairman, Preclinical Psychopharmacology Study Section, National Institute of
Health; Chairman, Committee on Drug Safety, American Psychiatric Association;
Consulting Editor, Neuropllllrmacology and Psychopllllrmacology; Member,
Editorial Board, American Journal of Psychiatry. He is also the author of
numerous scientific publications.
by Dr. Morris Lipton
Ten years ago the Congress found the traffic in obscenity and pornography to
be a matter of national concern and passed Public Law 90-100 which created a
national Advisory Commission whose purpose was: "After a thorough study
which shall include a study of the causal relationship of such material to an­tisocial
behavior to recommend advisable, appropriate, effective, and con­stitutional
means to deal effectively with such traffic in obscenity and por­nography.''
President Johnson appointed members to the Commission in January 1968. In
July, 1968, funds were appropriated to support the research of the Commission
for two years. The report of the Commission and its ten volumes of supporting
documents were published two years later in September, 1970. The most con­troversial
legislative recommendation with which twelve of the seventeen com­missioners
agreed was that federal, state and local legislation prohibiting the sale,
exhibition and distribution of sexual material to consenting adults be repealed.
Less noted, perhaps because they were less wntroversial, were recom­mendations
that states pass legislation prohibiting the commercial distribution or
display for sale of sexual ma terials to young persons, and that states and local
communities enact legisla tion prohibiting public display and unsolicited mailings
of sexually explicit pictorial materials. The Commission also recommended
against the adoption of any legislation which would limit or abolish the
jurisdiction of the Supreme Court or other federal judgeships and courts in
obscenity cases.
Four non-legislative recommendations were also made. These were: (I) That
there be launched a major, age appropriate, supervised sex education program in
homes, schools and churches; (2) that there be continued open discussion based
on factual information of the issues regarding obscenity and pornography;
(3) that there should be acquired additional factual information about the results
of pornography by further empirical research funded by federal agencies as well
as other sources; (4) that citizens organize themselves at local, regional, and
national levels to aid the implementation of the foregoing recommendations.
The conclusions and recommendations of the Commission were determined by
the findings of its four panels, which had studied traffic and distribution, existing
and potential laws, non-legislative solutions and effects. Considerable weight was
given to the findings of the Effects Panel which, following the congressional
mandate to "study the causal relationship of such material to anti-social
behavior," sought by multiple strategies to find significant evidence for such a
relationship. Had it found one there is no doubt that the final report and its
recommendations would have been very different. That it failed to find
significant effects has generated a storm of criticism of its work. Yet sound law
should be based upon evidence that the proposed laws or policy will eliminate
detrimental effects and promote sound ones.
The measurement of the effects of pornography is not a simple task and the
reader may be challenged at this point to pause and reflect how he might design
and execute appropriate research to determine its effects. The Commission first
limited its definition of antisocial behavior to criminal behavior and did not
include diverse effects like those on religious, cultural or aesthetic values. It then
began with a survey of the opinions of experts who had written opinions on the
subject. It continued with a national survey which reflected the opinions of a
cross-section of American citizens on this subject. A direct experiment involving
the exposure of normal young male adults to erotic materials was conducted to
study both immediate and delayed effects. The history of exposure of delinquents
and of known sexual criminals to erotic materials was studied, Finally a survey of
the effects of liberalizing the laws relating to pornography in Denmark was made
to determine the consequences upon sexual criminals in that nation. The quality
of the research and the validity of the conclusions from each of these studies was
assessed and all of these considerations entered into the final evaluations.
The survey of opinions of experts about the effects of pornography on sexual
criminal behavior revealed a professional orientation. By and large, educators,
counselors, psychologists and psychiatrists, saw little significant relationship
between exposure to pornography and sexually antisocial behavior. But most law
enforcement officers saw a substantial relationship. The general conclusions
from the survey of experts was that persons of good will and considerable ex­perience
came to very different conclusions which seemed to depend upon their
professional orientation as to whether to punish or to rehabilitate. All of the
experts had strong impressions but little had hard evidence. Empirical research
was clearly needed.
(Continued on page 8)
Louisville Law Examiner, February 7, 1978 3
Prof. Brickey Joins Faculty at WashiR,gton Universtty
I
by Valerie Salven
After deciding that joining the faculty of
the School of Law of Washington
University in St. Louis, Missouri, "would
afford me a greater opportunity to more
rapidly advance my academic' ·career,"
Assoc. Professor Kathleen Brickey ten­dered
her resignation from the faculty of
the U of L School of Law effective June 30,
1978.
In her letter of resignation, dated
November 21, 1977, Ms. Brickey called this
action "one of the most difficult decisions
I have ever made." She said that her
"professional association with the (U of L)
law school has been rewarding," but that
"I feel it is unlilrely that the full potential
of the University of Louisville Law School
will be realized in the near term in light of
the problems facing the entire university,
including inadequate financial support."
During a recent telephone interview from
her home in St. Louis, Ms. Brickey ex­plained
that the problems facing U of L to
which she alluded in the letter "are not new
problems. They have faced the University
generally and for some time.~! In par­ticular,
she cited the problem of obtaining
ABA Issues
Monograph on
Plea Bargaining
ADA-Chicago
The benefits and pitfalls of the "plea
bargaining" prOcess are laid out in a
monograph issued recently by the
American Bar Association's Section of
Criminal Jus rice.
The publication, "Plea Bargaining;
MDesis or irvana?," features the view
of six criminal justice system professionals,
ranging from those who wholeheartedly
upport its use to those who have ex-perimentally
eliminated the practice.
The monograph is based on a .Criminal
Justice Section orogram presentl:d during
the ABA's 1977 annual meeting last
August.
Former Vice President Agnew's defense
attorney, Judah Best, discusses "the truth"
about nolo contendere pleas. He traces
their origin back to 14th century England
and points out their practical benefits to
"white collar crime" defe,nse attorneys
today.
The monograph also presents the ex,­periences
of:
-A Texas judge who eliminated "plea
bargaining'' during a 20-month experiment
in his court, through use of sentencing
guidelines;
-A Chicago criminal defense lawyer
who strongly defends ·plea negotiations,
and describes a variation - the use of a
"slow plea" of guilty;
-A Portland, Ore. district attorney who
has eliminated court docket backlogs and
increased prosecution of robbery and
burglary cases through elimination of
charge reductions; •··
-A nationwide study of a "plea
bargaining" project director, who has
observed the variations in the practice
nationwide and offers views on the need
for openness in its application.
Former New York City Dist. Atty.
Richard Kuh, who served as moderator,
discusses his experiences in the Manhattan
prosecutor's office when he . issued
guidelines in 1974 for all assistants to
follow in handling plea negotiations.
The program was presented by the
section's Plea Negotiations Committee,
which recently published a pamphlet en­titled,
"What are Plea Agreements?" This
explains - in simple language - the
benefits and drawbacks of plea
negotiations for laypersons.
The monograph is available from the
Section of Criminal Justice, 1800 M St.,
N.W., Washington, D.C. 20036, at a cost
of$3.00. .
~- ~-
h,-r
Prof. Katllleea Brickey bas resigned from ber ·
posidon at the Univesity of Louisville School of
Law.
adequate funding, maintammg an
adequate library staff, and keeping the
level of new library acquisitions up, saying
that "a good library is essential." A good
student body is al~o essential, Ms. Brickey
added, "but I think U of L has that."
"A lot of good gains have been niade at
U of L (law school) recently,'' Ms. Brickey
continued, "but I question whether the
university will continue to -pro"Vide that
support or whether it will say ~Now you
have reached a certain level of fupding, and
will only get a cost of living ilicrtlas!!,' or if
it will continue its committment to improve
the law school.''
- Washington University ha~ made a
strong committment to its law school, Ms.
Brickey said. Among the assets which
attracted Ms. Brickey to the : ~hool is a
library staff "more than doubie" the size
of that at U of L; a "better dispersed"
secretarial staff and services; competitive
salaries; and flexible teaching schedules
which allow the faculty me.mber'~ to take
advantage of the libra-ry .facilities for
extensive research and writing: As an
example of the "flexible',' • teaching
schedules she mentioned, Ms. ·Brickey. said
that she taught two regular three-hour
courses in the fall semester at Washington,
but this semester must only teach one
regular three-hour class and advise a group
. of 12 students for a writing seminar.
Most of the faculty members at
Washington " are very productive in
writing" Ms. Brickey noted. She said that
she plans to spend more time writing "now
that my schedule allows it.''
When asked if she planned to return to
Kentucky sometime in the future, Ms.
Bri.ckey said that was a "hard question" to
answer since she only recently decided to
accept the position at Washington
University's law school. (Ms. Brickey has
been teaching at Washington this year on a
leave of absence from U of. L.) But she
added that she and her husband "love
Kentucky" and that her letter of
resignation, which praised the students and
faculty at U of L, "was a sincere one."
Ms. Brickey, a 1968 graduate of the
University of Kentucky College of Law,
served on the Kentucky Crime Commission
and was Executive Director of the Ken­tucky
Judicial Conference and Council for
one year before she joined the U of L
faculty in 1972. She is the author of a
treatise on criminal law under the present
Kentucky Penal Code.
Dean - Wren expressed regret that Ms.
Brickey has decided to leave U of L, calling
her an ','able, intelligent person." But he
added, "everyone must act in his or her
o~n best interest, whatever that is."
Summer Classes in England Offered
by Prof. Laurence Knowles
This summer the Law School will
conduct a cooperative summer
school seminar with the University of
Leeds Law faculty. The program will
carry the same credit hours and
residence credits as a regular summer
session.
The Academic Component
Essentially two courses will be
given: One will be Private In­ternational
Law, basically a study of
American Conflict of Laws with the
added consideration of how other
nations, especially England, treat
problems of jurisdiction and
recognition of judgments. The
second course will be the English
Legal System. This will be a study of
the English judicial structure, the
legal profession in England, and
selected current problems that
England is facing in tort, crime, and
criminal procedure.
Structurally, the first four weeks
of both courses, commencing at the
same time as regular summer school,
will be taught in Louisville. Then,
with a two week period for travel,
the classes would resume study at the
law school at the University of Leeds
in England. There the remainder of
both courses would be taught,
principally by outstanding members
of the Leeds law faculty.
The Legal History Component
Several visits are planned to
landmarks or our coinmon law
heritage. One is to the Central
Criminal Court, otherwise known as
the "Old Bailey" where the blind­folded
muse of justice stands. It is
the most well-known court of
<;riminal trials in England.
The class will also visit the four
Inns of Co~rt, the institutions which
have educated the English bar sihce
the eleventh century. Professor
Wolfgarten of the Leeds faculty has
arranged for a private tour and meal
. at Middle Temple::, where she is a
member barrister. Middle Temple,
situated on the river Thames, is the
ol~est of the four inns, cla"iming
Raleigh and Drake as members, as
well as Dr. Johnson. It was there that
the white and red roses were picked,
which lent theii names to England's
bloodiest civil war.
The Royal Courts of Justice and
Parliament are also oli the schedule.
The Cultural Component
Leeds University is one of the
largest in England, and it entertains a
number of film and music festivals.
The city of Leeds is the financial and
industrial center of Northern
England, having a number of
theaters, cinemas and sporting
facilities.
Immediately to the north of Leeds
lie the beautiful Yorkshire dales.
Here the town of Haworth, where
the Bronte sisters liVe<fand wrote,- Is
situated. York, one of the oldest
towns in England, and still embraced
in part by its original Roman wall, is
a thirty minute train ride away.
Edinburgh, Scotland is four hours.
Ruins of eleventh century Roman
Catholic abbeys abound In the
Yorkshire area.
Another part of English culture is
the pub. And an optional visit to
Theakston's Brewery, in the market
town of Masham, is planned. ·
Housing
A fixed number of private rooms
have been reserved at Charles Morris
Hall, a modern student residence five
minutes from the law school. These
very attractive quarters, with maid
service included, are at· a special
student rate of five dollars a night. A
. sumptuous English breakfast has
been made available at the cost of
about two dollars. Lunch and dinner
are optional at a small added cost.
Although most of the . rooms are
designed for single occupancy,
double occupancy for spouses or
friends accompanying students are
. available. Charles Morris Hall also
boasts a large and well appointed
student common room which
contains its own bar:
., ..
Pbilosopbicaland Practical
Components
A number of law schools have
summer programs abroad, listing as ·
courses Partnership Taxation, Civil
Procedure, and the like. There is no
more reason to teach these abroad
than there is to teach them in a
closet. Our program is designed to
integrate both the subject and the
situs. On the other hand, Private
International Law (an expanded
Conflict of Laws) provides a main
line bar course component.
Leeds University was selected
because of the long and fruitful
association U of L has had with the
law faculty there. Indeed, almost
every year U of L has had a visiting
professor from Leeds, and a number
of our faculty have visited there.
Three and a half weeks has been
selected fqr the formal residence at
Leeds University to assure -a
minimum expense while maximizing
opportunities for seeing the English
Legal System at work. Additionally,
this assures travel opportunities both
before and after residence at Leeds,
as well as easy and inexpensive
scheduling of air transport. Un the
other hand, students that plan to
clerk in the summer while attending
summer school can participate in the
program by taking off only three
weeks from work.
Finally, the program is not merely
designed to provide a very
economical opportunity for law
students to expand their vistas
beyond Bluegrass Creek. Jn reality it
may be the only real, but productive,
break in the tunnel whicK extends
from the first day of law school
through the first five .years of
practice.
· (Editors Note. Because of the limited.
spaces available, interested students
should contact Professor Knowles or
Professor Seago at an early date.
Any questions about the program, :
including those concerning air fare'
information, should be addressed t~
Professor Seago or Professo~
Knowles.)
4 Louisville Law Examiner, February 7, 1978
Higher Failure Rate Draws Attention
A Beginner's Guide to the Kentucky Bar Exam
by Ken Golliher
Passing the Kentucky bar examination is
the sine qua non of practing law in the
Commonwealth, at least for the· recent law
school graduate. In the five years previous
to 1977 at least 90 percent of those taking
the exam passed. But, fewer than 80
percent of those taking the February and
J uly 1977 exams received a passing score.
This decrease has generated a good deal of
interest in Kentucky's bar admissions
procedures, both within the field of legal
education and the practicing bar in Ken­tucky.
Kentucky Revised Statute 21A.160 (1976
Cumm. Supp.) vests the entire authority to
establish procedures for admission to the
bar with the Commonwealth's highest
judicial body, the Kentucky Supreme
Court. The rules governing the admission
of persons to practice law, RSC 2.00 et seq
(as amended January 1, 1978), provide that
admittance may be obtained through
examination by the Kentucky State Board
of Bar Examiners or by a motion of the
Kentucky Supreme Court. There is no
formal connection between the Kentucky
Bar Association and the State Board of Bar
Examiners.
To be eligible for admission by motion, a
•:foreign" attorney must have been ad­mitted
to practice before the highest court
of another state where qualifications for
admission were at least as stringent as
Kentucky's or the District of Columbia. He
must also have been engaged in the active
practice of law for five of the seven years
preceding his application.
A request for admission by motion is
made by paying a fee of $225 to the
Supreme Court Clerk and filing the written
application and its appropriate supporting
affidavits.
However, the largest number of those
admitted to the Kentucky Bar each year
gain admittance by examination. Kentucky
has utilized a written examination as a test
of proficiency since 1918 and no longer
makes use of the diploma .privilege. (Only
five states recognize the diploma privilege, .
allowing the graduates of that state's law
schools to be automatically admitted to the
bar without examination.)
Given twice annually, the bar
examination is conducted on the last
Tuesday and Wednesday in February and
again on the last Tuesday and Wednesday
in July. Most applicants take the summer
examination. In order to register for the
test applicants must file a written ap­plication
with the Clerk of the Supreme
Court and pay a $175 fee ($225 for out-of­state
applicants).
Former Circuit Court Judge Stuart
Lampe, a member of the Board of
Examiners, said that the availability of
facilities generally dictated the location of
the test. Last July's examination was given
at the Capital Plaza in Frankfort. The
February 1978 examination will be given at
the University of Kentucky campus in
Lexington.
Board members are appointed by the
Kentucky Supreme Court. Currently
serving with Judge Lampe are Gladney
Harville, a Lexington attorney and the
board's secretary and Fred G. Francis, a
Prestonburg attorney who is the board
chairman. Judge Lampe is the Secretary of
the National Conference of Bar Examiners
(NCBE) and-l'Vfr.- :Francisls a former-c1uiir­man
of that national organization. Mr.
Francis has been a board member for 21
years and Mr. Harville and Judge Lampe
for four and 13 years respectively.
The first day of the bar examination is
broken down into three sessions lasting two
hours each. Each section contains four or
five essay questions. (Each examiner grades
only one section of the test and their grades
are averaged to achieve the score for the
essay portion.) In order to pass an ap­plicant
mu-st receive an overall score of 75
percent or better on the entire test.
While each state is purely autonomous in
its bar examination, the NCBE maintains a
file of over 6,000 suggested exam questions
from which its members may draw. Ac­cording
to Len Young Smith, Chairman of
NCBE's Bar Examination Committe~,
Kentucky "draws liberally" from this
service. Judge Lampe confirmed. this
practice and noted that, "A good number
of our questions have been asked on
another state bar examination at some
time." He also added that such questions
are not repeated verbatim and that not all
questions used on the Kentucky exam were
the product of this service. Each examiner
selects the questions for his section.
Covered on the examination are: ad­ministrative
law and administrative
procedure, conflict of laws, contracts,
corporations, criminal law and procedure,
real property, federal taxation, torts,
uniform commercial code, wills and trusts
and evidence. Although six of these
subjects are covered on the Multi-State Bar
Exam (MBE), there is generally some
duplication of that coverage in the essay
portion of the examination. Effective July
1979, domestic relations and personal
property will be added to the list of subjects
covered on the exam and each applicant
will be required to certify that he has
successfully completed a course in the
study of ethics.
· Grading is an individualized procedure
and not all examiners give each question
equal weight. Mr. Francis said that the
weight he attached depended '' ... upon the
question itself. If I have asked two easy
questions and two of greater difficulty, I
give greater weight to the latter." Mr.
Harville said he--graded his section as a
unit, not assigning a specific score to eacll
question, while Judge Lampe grades his
portion of the exam one question at a time
and assigns equal weight to all answers.
Although the rules of the Supreme Court
allow the board members to hire assistants
to aid them in grading, all three men said
that they do not use assistants ~t the
present time. ·
All examinations must be handwritten
rather than typed. According to Judge
Lampe, allowing applicants to type could
destroy the anonymity of the grading and if
several applicants were to type the exam,
the facilities problem could be un­manageable.
Special arrangements are
made to facilitate the needs of handicapped
applicants.
There is currently no procedure in the
Supreme Court Rules for the appeal of a
failing score on the examination. If an
applicant has failed to pass three or more
bar examinations in one or more states, he
will not be allowed to take the Kentucky
bar exam.
Many unsuccessful applicants do ask to
see their examination and such requests are
usually honored. While an applicant may be
allowed to see the examination, this may be
of little help in assessing his individual
performance since two of the examiners do
not write the numerical score on the
examination paper and only one con­sistently
provides· a sample answer for the
questions in his section.
None o(the board members is willing to
as~;ribe the_ greater faili~ Tate to any
particular variable in applicant per­formance
or weakness in specific subject
areas. But all three men mentioned that the
lack of writing skill exhibited by many
applicants was a factor. Each emphasized
that while applicants are not graded on
spelling and grammar, a lack of writing
skills is a definite hindrance to the ap­plicant:
"I've never had one that I couldn't
figure out," Mr. Harville said, "but, some
take a lot of time. Their aptitude in
grammar is poor. This is a deficiency that
should have been corrected in high school,
if not in elementary sc;hool. When I started
grading these exams four years ago I was
surprised that people could reach this
educational level and still lack basic
proficiency in communication."
Mr. Francis said, "If we graded them on
writing we'd flunk 90 percent .. .if we
graded them on grammar we'd have a
revolution! They can't spell and they don't
know proper sentence structure." He
added that he felt that this deficiency was a
pre-law school problem.
Judge Lampe said, " ... many of the ap­plicants
don't know how to express
themselves well." He emphasized that they
were not graded on grammar and
vocabulary but added, " .. .its only natural
that if I read two papers and one of them is
well written and well expressed and the
other one is poorly written and poorly
expressed I'm going to give a little better
grade to the first one."
Judge Lampe suggested that when a law
school becomes aware of a student's
writing deficiency, it should require that
student to take instruction in English
composition. "It's so damned important
when you become a lawyer to be able to
express yourself well. You can know all of the
law in the world and if you can't express
yourself, either in writing or on your feet,
you can't do much," he said.
The second day of the examination
period is devoted to the MBE. One
professor at U of L's Law School is fond of
saying, "If you like the LSAT you'll love
the Multistate Bar Exam ... they're brought
to you by the same people!"
The MBE is indeed organized and scored
by the Educational Testing Service (ETS) at
Princeton, New Jersey, but its questions
are actually contributed by the National
Conference of Bar Examiners (NCBE).
Len Young Smith, the Chairman of
NCBE's Bar Examination Committee said
that there is a definite physical similarity
between the MBE and the LSA T. ETS
employees do structure question patterns
and point out ambiguities where necessary.
"After all, they are the experts on giving
this kind of exam," Mr. Smith said, but he
went on to emphasize that unlike the
LSAT, the MBE is not an aptitude test.
Committees manried by professors,
practitioners, bar examiners and, oc­casionally,
judges formulate MBE
questions in their area of expertise for the
national bar examiners organization. Some
questions are repeated from earlier exams
and are used to establish a basis by wh~h
the difficulty of the ·current examination
mai be equated with, those of previous
years. For example: The people taking the
February 1976 exam had a raw mean core
of 127 .9, but with adjustment for that
particular test's difficulty as opposed to
tests of previous years the mean "scaled"
score became 134.5 out of a possible total
of200.
The MBE has been in existence and a
part of the Kentucky Bar Exam since 1972
and it is currently utilized in 42 other
jurisdictions. States not using the test are
Indiana, Iowa, Louisianna, Minnesota,
Montana, New York, Washington,
Arizona and West Virginia.
There are 200 questions on the MBE,
distributed among six subject areas as
follows: Constitutional Law 30,
Criminal Law - 30, Evidence - 30, Real
Property - 30, Contracts - 40 and Torts
- 40. The six-hour testing period is broken
down into two three-hour sessions,
allowing an average of one minute and 45
seconds per question. The test is given in all
participating jurisdictions on the same date
-the last Wednesday in February and the
last Wednsday in July.
Joe E. Covington, a Professor of Law at
the University of Missouri and the Director
of Testing for the NCBE, describes the
MBE's multiple choice question format:
"Questions begin with a fact -situation and
then there is a stem, or a basic question.
You choose your answer from four or five
alternatives." He noted that the NCBE has
made over 300 of the previous test
questions available to the public. Test
applicants receive 50 sample questions, and
an additional 200 questions (the 1972 test)
are available at $2 a copy from the
Missouri Book Store, 909 Lowry Street,
Columbia, Missouri 65201. (This test is
also available for Reading Room use at the
reserve desk in the Law School Library.)
According to Mr. Covington, scoring
results are generally returned to the in­dividual
states within three weeks after
their receipt by the ETS. The ETS report to
the state includes the score of each ap­plicant
on each MBE subject, score
frequency distributions, and the percentile
rank of each score. State and national
summary statistics for the entire test and
for each subject are supplied and include
the mean, median, maximum, and
minimum scores and standard deviation
percentages.
Scores on the MBE are given varying
amounts of emphasis and authority among
the states. New Jersey admits all applicants
who score above 145 on the MBE without
grading the essay examination. Florida
allows a degree of reciprocity with MBE
scores in that an applicant who has received
an acceptable score on the exam in another
jurisdiction need not repeat it in Florida
(but he must take the rest of the Florida
examination.) Other states automatically
pass those who score above 130 or 135 on
the MBE. Seven states will accept an MBE
score from a previous examination.
Kentucky has no automatic p::tssing score
and does not allow the use of an earlier
score.
An open -letter to the NCBE members,
printed in a recent issue of the Con­ference's
official publication, The Bar
..':'!. tage
ng
Percent
Repea
toTotall'al!;ing
Percenta3e
Repeaters
Admission
, ,of Foreign
?:'A ~torneys
~amination ,, byJ\lotion .. ,, 1972
\\\ 1973
1974
1975
1976
1977
294
409
393
449
468
*Figures Could ~ot Be Established
Passing
258
279
381
352
404
370
Examination
7
4
6
6
11
*
Passing
64
82
58
75
65
*
, 55 ,
47
15
14
9
*
Louisville Law Examiner, February 7, 1978
Judge Stuart Lampe, a member of the Kentucky State Board of Bar Examiners, feels that many of Kentucky's law school graduates are deficient In their
writing skBis. He advocates remedial instruction for law students who have problems in English composition.
Examiner, noted that two proposals for a
change in the MBE's coverage had been
made: Many would like to see Professional
Responsibility and Clinical Skills included
within the test's scope. According to Mr.
Smith, the Professional Responsibility test
is under consideration by a special NCBE
committee. But he cautioned, "It takes a
bit of time before you actually get to the
point of giving this type of exam ... but
California did have one on its bar
examination last year." Mr. Smith also
noted that Constitutional Law ·had only
been added to the MBE in February of
1976 and it was chosen in lieu of Civil
Procedure or Corporations - concluding
"Any change in coverage is a big
decision." Discussion regarding the
possibility of adding a Clinical Skills test is
not in an advanced stage.
All answer sheets for the MBE are
computer-graded in Princeton, New Jersey
by the Educational Testing Service, but the
calculation of passage is made by yet
another computer located in Columbia,
Missouri by the NCBE's Director of
Testing. This second facility combines the
applicants' scores on the essay portion with
their MBE score according to a pre­determined
formula.
Each state which utilizes the MBE and
the NCBE's computer service is
autonomous in the method which they use
to combine the MBE and essay scores.
Kentucky uses the "Equi-percentile"
method to establish a composite score upon
which the pass-fail decision on the bar
examination is made. This method is
somewhat complex and the NCBE
recommends that any state using this
method should obtain professional
statistical advice. Kentucky does not.
What the method does is to treat the
highest and lowest scores on the essay and
the MBE as equivalents and to establish
percentile rankings for the range of scores
in each category. When the MBE score is
converted to a percentile equivalent then
the two scores can be added together and
since each portion of the test is given equal
weight in Kentucky, the result is divided by
two. All of those whose average is 75 or
above pass.
Although ETS generally returns the
scored MBE within three weeks, due to the
time consumed by grading the essays and
the additional time lapse for making the
passing calculations at . the Columbia
computer, applicants usually are not in­formed
of the test results for eight to 10
weeks. After three years of law school, it's a
long wait.
''We think, Mr. Chase, that you must study another year''
by Ken Golliher
Very seldom, I imagine, has any
candidate for admission to the bar
presented himself for examination
with a slenderer stock of learning. I
was examined in open court. The
venerable and excellent Justice
Cranch put the questions. I answered
as well as I was able - how well or
how ill I cannot say- but certainly,
I think, not very well. Finally, the
Judge asked me how long I had
studied. I replied that, including the
time employed in reading in college
and the scraps devoted to legal
reading before I regularly com­menced
the study, and the time since,
I thought three years might be made
up. The Judge smiled and said, "We
think, Mr. Chase, that you must
study another year and present
yourself again for examination."
"Please, your honors, " said I,
deprecatingly, "I have made all my
arrangements to go to the western
country and practice law." The kind
Judge yielded to this appeal, and
turning to the Clerk said, "Swear in
Mr. Chase." Perhaps he would have
been less facile if he had not k11own
me personally and very well.
James Willard Hurst­The
Growth of American Law
"Mr. Chase" did indeed "go to
the western country and practice
Jaw" and, despite Judge Cranch's
misgivings concerning his
knowledge, distinguished himself
among his fellows.
Salmon Portland Chase later
became the Governor of Ohio, the
U.S. Secretary of the Treasury and
the Chief Justice of the United States
Supreme Court. Kentucky's newest·
law school, the Chase College of
Law at Covington, carries his name
as a continuing remembrance of his
contributions to the legal profession.
"Standing for the bar," as it was
called when Mr. Chase placed
himself before the Federal Court in
the District of Columbia in 1829, was
the, legally prescribed method for
admittance to the profession in most
states, including Kentucky.
A 1796 Kentucky Statute set out
that judges were empowered to
examine the applicant on the Jaw
after he had presented to them " ...
a certificate from the court of any
county, that he is a person of honest
demeanor ... " If after examination
he was found to be qualified he could
be issued a license upon taking the
following oath: "I do swear that I
will honestly demean myself in the
practice of a counsel or attorney at
Jaw and will execute my said office
according to the best of my
knowledge and ability." Any who
had been convicted of • • ... treason,
felony, forgery, or wilful and
corrupt perjury ... " were not
allowed to be admitted to the bar.
In the Commonwealth, this oral
examination was given in open court
after a period of apprenticeship or
the completion of law school. This
was the practice from 1796 to 1892.
After 1892, applicants could be
admitted following a private oral
examination by a committee of two
attorneys appointed by the Circuit
Court. Ten years later, the
examinations were reinstituted as a
procedure in open court, but the two
attorney-examiners conducted the
interviews. The subjects covered
were: common Jaw, equity and
jurisprudence, federal and state
constitutions, criminal Jaw, torts,
real property, contracts, pleadings,
evidences, negotiable instruments,
and public and private corporations.
During the earlier part of the
Commonwealth's history when
examinations were conducted in
open court, an applicant could stand
before two judges of the Court of
Appeals or the District Courts. In
1802, the Circuit judges were also
empowered to grant licenses to
practice law. No effort was made to
restrict the admissions process to the
purvey of the highest court in
Kentucky until the early 20th cen­tury.
The diploma privilege, or ad­mission
to the bar without
examination after the completion of
law school studies, was afforded to
the University of Louisville School
of Law graduates in 1873, and those
of Trannsylvania's Law School in
1874. (The University of Kentucky
and Salmon P. Chase Law Schools
were not established in Kentucky
until 1908 and 1972, respectively.
Trannsylvania's Law School
suspended operation in 1912.) The
diploma privilege was revoked in
1902.
Law studies during the 1800's
varied from one to two years and
there were no prerequisites to legal
study. A person could be licensed as
an attorney in Kentucky by standing
for examination or graduation from
one of the two above Jaw schools
without having obtained a high
school diploma. This situation was
common throughout the United
States and did not change to any
great extent until the early 1920's
when the American Bar Association
began to push for more and more
stringent law school entry
requirements.
In 1918, a Kentucky statute
provided for the establishment of a
Board of Bar Examiners to be ap­pointed
by the Court of Appeals.
Statutory provision also dictated t,hat
a written examination ·on
subjects to be prescribed by Ken­tucky's
highest court and that no
applicant should receive a license to
practice unless he should receive a
"general average of 75 per cent."
Although the statutory framework
has been altered considerably since
that time, this law of 60 years ago
still outlines the existing procedure
in the Commonwealth.
Kentucky's highest court, the
Supreme Court, now has complete
authority to establish a Board of Bar
Examiners ". . . to assist in the
evaluation of applicants for ad­mission
to the practice of law ... "
and to provide for the remuneration
of those examiners. The subjects to
be covered by the exam, the passing
rate, the qualifications of the ap­plicants,
and the establishment of the
Character and Fitness Committee
which investigates all applicants is
dictated by the Rules of the Supreme
Court rather than an enactment of
the legislature.
5
6 Louisville Law Examiner, February 7, 1978
ABA Convention Planned
Legal Writers Horne
Choice of Contests
(Continued from page 1)
"Expediting Appeals in Appellate Courts"
during a Conferenct; of Chief Justices
panel Friday morning. A second panel,
"Judiciary and the News Media," features
New Mexico Chief Justice John B. Mc­Manus,
Jr.,; CBS Legal Correspondent
Fred Graham, and Florida Chief Justice
Overton.
Mr: Spann will address a luncheon
session of the chief justices to discuss wotk
in progress on revising the ABA's Code of
Professional ResponSibility. He also will
speak to the National Conference of Bar
Presidents Friday. Other NCBP programs
will cover lawyer malpractice insurance,
mandatory continuing legal education and
specialization, law student representation
on bar association governing boards, ABA
election procedures and bar support of
promulgation of federal rules of
disciplinary enforcement.
Senator Bayh will address a joint lun­cheon
of the NCBP and the NABE,
discussing ."Direct Election of the
President."
Another. luncheon speaker will be U.S.
Circuit Court of Appeals Judge John
Minor Wisdom, to the ABA's Young
Lawyers' Section.
ABA President-elect S. Shepherd Tate
will make a report on lawyer advertising to
the NCBP Saturday morning, Feb. 11 .
Also on the bar presidents' program
Saturday are panel discussions . on the
organized bar's responsibility to public
interest law, whether integrated bar
associations can compel payment of dues
to nonregulatory activities, possible
rev1s1on of the ABA's Code of
Professional Responsibility and the status
of legal services in the wake of the Supreme
Court's decision on lawyer advertising.
Civiletti, acting deputy attorney general
and also head of the Justice Department's
Criminal Division, will address a luncheon
Mock Trial
Participants
Prepare For
Competition
Many young lawyers get their first trial
experience by being handed a file folder
and hearing a senior member of the firm
say, "Take care of this." Only the lucky
ones get some real guidance and coaching
before they go into cdurt.
However, some students take the op­portunity
to lose their courtroom chastity
while they're still in Jaw school and, in the
words of Prof. Ron Eades, ". . . in a
simulated courtroom situation where no
money is involved. Where mistakes can still
be funny, not damaging.''
Mr. Eades, the advisor for U of L's
mock trial teams, is enthusiastic about the
dedication of this year's team members.
Jeff Kirk, Mark Sullivan, Alphonso
O'Neil-White, Scott Preston, Willi Lowe
and Jim Green have been working steadily
on their hypothetical problem and each
group has met to practice several times
since the team selections were made last
December.
The problem concerns a case in which a
security guard has shot and severely
wounded a man suspected of. shoplifting.
The guard's employer is the defendant in
the case, an action in tort for damages.
Team members have the sworn
statements of four witnesses and each team
session of the Young Lawy~rs' Section.
Civiletti had been in charge of the Tongsuri
Park case.
HUD Secretary Harris will make a
dinner speech to the American Bar
Foundation Fellows Saturday night.
- The Young Lawyers' Section will
sponsor a major conference on legal
services for the elderly Sunday, Feb. 12, in
the Hyatt-Regency Hotel. The program
features panels on bar-sponsored delive..Y
systems for the elderly, legislation affecting
the elderly, improving the relationship
- between the elderly and their lawyers, age
discrimination and education concerning
legal problems of the elderly. Nelson
Cruikshank, counselor to President Carter
on aging and chairman of the Federal
Council on Aging, will make a luncheon
speech on "The Social Security
System: Outlook for the Future."
Chief Justice Burger will make his
"Report on the State of the Judiciary" in
the Fairmont Hotel's International
Ballroom Sunday afternoon.
The ABA's House of Delegates will open
three days of deliberations Monday, Feb.
13. 'Deputy Secretary of State Christopher
will address a luncheon session of House
members on Monday.
On Tuesday, Feb. 14, State Delegates
will announce to the House their
nominations for president-elect, chairman
of the House, secretary and treasurer. Five
of the Association's regions will announce
their candidates for the Board of
Governors. The House will vote on the
nominees and any submitted by petition at
the annual meeting in New York City Aug.
7.
The president-elect nominee will have a
news conference after his nomination is
announced Tuesday.
The House is scheduled to adjourn on
Wednesday, Feb. 15.
Resolutions adopted by the House
become official ABA policy and are
brought to the attention of the proper
governmental officials and agencies.
by R()okie Medaris
Law students interested in working on
developing their writing skills can now do
so,. and at the same time become eligible for
-some -valuable pnzes. 'Three national
contests are now open to legal scholars
willin__g to test their skills.
-: The American Bar Ass-oCiation'S -Section
of Criminal Justice is sponsoring the Alan
Y. Cole Law. Student Writing Contest as
part of it's Centennial observance. The
contest's purpose is to encourage students
to become actively involved · in efforts to
improve the nation's criminal justice
system.
This contest is open to any student
enrolled in an ABA-approved law school.
"Access to Justice: Prospects for
Developments in Criminal Law" is the
topic for this competition. The winner will
receive a set of the ABA Standards for
Criminal Justice and a free trip to the
Association's annual meeting in New York
City in August, where he or she will be'
invited to present an abstract of the paper
to . section officers and council members.
The section also plans to publish the
winning manuscript.
Entries must -be postmarked by May 1,
1978. For more information contact: Ms.
Susan Hillenbrand, Coordinator, Law
Student Contest, ABA Criminal Justice
Section, 2nd Floor, 1800 M Street; N. W.,
Washington, D.C. 20036.
A second contest, sponsored by the
Section of Local Government Law of the
American Bar Association, offers · cash
awards to the authors of the winning
entries. Prizes of $500, $300, $209, $125
and $75 will be given to the producers of
the best papers on the topic: "Taxation
and Revenue: the implications of Article
9(4) of the U.K. Tax Treaty for state and
local tax purposes." Deserving entries will
be published in "The Urbari Lawyer," the
section's official publication.
The deadline for entries is April 14,
1978. Full details, including a suggested
preliminary reading Jist, can be obtained by 1
writing to: Ms. Mary Lou Cox, American
Bar Association, 1155 E. 60th St.,
Chicago, Ill., 60637.
The Howard C. Schwab Memorial
A ward Essay CQntest is conducted by the
Family Law Section of 81e American Bar
Association in cooperation with the Toledo
and Ohio Bar Associations. The purpose of
the contest is to create a greater interest in
the field of Family Law among law
students. The competition is open to all
second and third year students enrolled in
ABA-approved law schools and first year
students in such schools where family law
is a part of the first year curriculum.
Contestants are free to write on any
aSpect of Family Law that interests them.
Manuscripts will be judged on the
timeliness of subject, practicality,
originality, quality of research, and clarity
of style. Cash awards of $500, $300, $200
will be presented to the top three essays.
To obtain an entry form prospective
entrants should write to: Howard C.
Schwab Memorial Award Essay Contest,
Section of Family Law, American Bar
Association, 1155 E. 60th St., Chicago,
Ill., 60637. Entries must be postmarked on
or before April17, 1978.
Prof. Roaald Eades, seatec1 on railiDJ, is tile spoiiSOI' for U of L 's Mock Trial teams. This year's team memben are: front row, left to rf&bt, Scott Preston,_
Alphonso O'Neii-Wbite, Liz Grabam (Moot Court Board member) and WDii Lowe. Second row: Jim Green, Jeff Kirk and Mark SuDivan.
will conduct a direct examination and cross
examination of actors who play the parts of
the principals. They will also make opening
and closing statements, all for the benefit
of a "jury" of six people who-act as their
judges and score their performance based
on the quality of their presentation rather
than the merits of the case.
According to Moot Court Board
member Liz Gralram, Cleveland Ohio is
the site of the regional competition which
will be held February 17 and 18. Winners in
this competition will go to Houston, -Texas
for the final round in the national com­petition.
Eleven law schools from Indiana,
Ohio, Michigan and Kentucky have entered
a total of 16 teams in the regional meet.
Prof. Eades feels that U of L may be
beginning a strong program in this area.
Noting that this year's team members are
all competing for the first time, he said that
he hoped some of them would enjoy the
competition enough to go out for the team
again next year. He said, "This is not a
competition that U of L has participated in
regularly, but considering the enthusiasm
·of these people . . . well, with some ex­perience
we could develop a fme program."
_[--------------------------------------------------------------------~----- ----~------------------------------------------
Louisville Law Examiner, February 7, 1978 7
Forthcoming the Journal of Family Law •
Ill
Volume 16, Number 2
Articles
SPOUSAL RIGHTS IN RETIREMENT AND PENSION BENEFITS
By Henry H. Foster, Jr. and Doris Jonas Freed
These two prominent family law scholars analyze an important and timely
issue: to what extent should the homemaker's services be recognized as significant in
determining the economic incidents of divorce, particularly in regard to the
homemaker's claims to an interest in retirement or pension benefits of the other
spouse. As the authors note, in 1975 one jury awarded $100,000 in damages against
an attorney who failed to assert such a claim for his client.
TERMINATION OF PARENTAL RIGHTS STATUTES AND
THE VOID FOR VAGUENESS DOCTRINE: A SUCCESSFUL
ATTACKONTHEPARENSPATRIAERATIONALE
By DavidS. Day
The author examines a recent federal district court case in which a state's ter­mination
of parental rights statute was held impermissibly vague, in violation of the
plaintiff's rights to federal due process. In presenting the case, the author examines
the historical evolution of the "void for vagueness" doctrine which traditionally has
been limited in application to criminal statutes.
Notes
TERMINATION OF PARENTAL RIGHTS­SUGGESTED
REFO~MS AND RESPONSES
Focusing his attention on the interrelation of parents' rights, children's rights and
the state's interest, this author summarizes current law regarding state intervention
into familial affairs where the state seeks to terminate parental rights because of child
abuse or neglect. After analyzing several suggested reforms by selected commentators
which deal with the protection of parents' and children's rights, the author presents
several recent cases and evaluates them in light of these standards.
Participating In the client counseling competition are, left to right, Alan Schmitt, Prof. Lloyd An­derson
(faculty advisor), Ted Pappas and Carl Arnold.
"What Should We Do, Couns.elor.?"
The legal problems of unmarried couples
will be the subject of the 1978 Client
Counseling Competition sponsored by the
Law Student Division of the American Bar
Association.
Representing U of L's Law School in the
competition will be Alan Schmitt, Carl
Arnold and Ted Pappas. Mr. Pappas was a
member of the U of L entry last year and is
the team's only exJ)erienced member,
although Mr. Schmitt was a member of this
year's National Moot Court team.
Prof. Lloyd Anderson is the team
sponsor this year. He served in the same
capacity for last year's team and Moot
Court Board President, Joe Neary, said
Prof. Anderson's help was invaluable.
"We appreciate all of the time and effort
that our faculty sponsors put into these
competitions . . . Prof. Anderson did a
superb job last year in assisting with our
video taped practice sessions and con­structing
sample problems," Mr. Neary
said.
"Family Law: Unmarrieds Living
Together," is the title of the competition
and the regional meets will be held on
March 4, 1978. The regional meet, which
the U of L contingent will attend, is at
Washington & Lee University at
Lexington, Virginia. The national com­petition
will be held April 1, 1978, at New
York University School of Law, New York
City.
The annual competition tests the
counseling skills necessary for
professional competence in legal practice.
This includes the ability to interview a
client, to help the client define his or her
problems and future course of conduct, the
use of preventive law techniques and how
the student handles the psychological
aspects of the interview.
Conceived and developed as a legal
teaching technique by Prof. Louis M.
Brown of the University of Southern
California Law Center, the Client
Counseling Competition was originally
called the Mock Law Office Competition.
It began on an inter-scholastic level in 1969
with two schools competing. It has been
held each year since then, with the
American Bar Association's Law Student
Division administering the competition
since 1973. In 1977, 102 schools par­ticipated
in the competition.
ARE FAULT REQUIREMENTS IN DIVORCE
ACTIONS UNCONSTITUTIONAL?
While offering a dissent to the present trend in this country's passive attitude
toward marital breakdown as a way of life, this author argues that the Supreme
Court's treatment of marriage as a fundamental right probably precludes the state
from requiring the showing of grounds for divorce. Is the right to divorce inherent in
the right to marry?
A LOOK AT THE AMERICAN FAMILY'S RIGHT TO
STATE DEPARTMENT ASSISTANCE WHEN RELATIVES
ARE DETAINED ABROAD: SOME POLICY CONSIDERATIONS
This author starts from Ugandan President Idi Amin's proposed detention of 200
Americans living and working in Uganda last February and proceeds to outline the
possible steps an American family could take to secure State Department assistance
to free relatives so detained.
Case Notes
The following are just some of the issues presented and analyzed in the Case Notes
section of this issue: the constitutionality of disciplinary corporal punishment in
public schools administered without notice or prior hearing; in personam jurisdiction
in California over a New York father for purposes of modifying a Haitian divorce
decree for purposes of custody and child support (the Supreme Court granted cert. in
this case in December, 1977); the unconstitutionality of a statutory residency
requirement barring one sub-class of illegitimates from receiving Civil Service an­nuity
benefits; and the enforceability of a contract between non-marital partners
concerning the disposition of property acquired during period of cohabitation.
Recent Cases
Over 70 recent decisions are summarized in this issue of the Journal.
Legal Ads Create Curiosity
AHA-Chicago
Watergate has stripped the legal
profession of its "privacy," exposing
lawyers to ever-increasing public
examination according to an American Bar
Association executive.
Richard B. Morris said the Supreme
Court's decision opening the door to
lawyer advertising will also whet the public
appetite for more information about the
legal profession. "Black robes,
professional jargon, and other legal masks
will not protect the profession, the law
schools, the courts or bar organizations
from the full disclosure the public will
demand," said Morris, ABA assistant
executive director for communications.
"The public will want to know who runs
the organized bar, how they are elected,
what their qualifications are and what
happens if they are not competent,"
Morris said.
He said the public will also hold the
profession accountable for failure to
provide adequate legal services to all,
overcrowded courts and a malfunctioning
prison system.
The people will also want to know why
juvenile justice cannot be improved, why
professional discipline is secret and ap­parently
catches so few, Morris said.
He contended that lawyers have no
choice but to go public because "in­vestigative
and adversary media acting on
behalf of the public will keep asking,
watching and reporting."
Morris suggested that lawyers will have
to brush up on their communications skills
to fulfill their obligation to the public.
Conceding that "no public relations
campaign can compensate for any
deficiencies," Morris said that the
profession's response to critics "hinges as
much on public relations or com­munications
skills and values as it does on
the merits of its programs and services."
The ABA executive criticized law schools
for "paying scant attention to the legal
profession as such and its responsibilities
to the public." He also lambasted members
of the organized bar who fail to play an
active role in bar activities. "The view of
bar association members is too often 'What
has the bar done for me lately?' So the
profession's work is left to the few, who
end up doubly dammed when those on the
sidelines complain that bar politicians run
the show," Morris said.
CALENDAR OF EVENTS
Feb.9
Feb. 10 (p.m.)
Feb. 11 (a.m.)
Feb. 17-18
Feb. 24 (p.m.)
Feb. 25 (a.m.)
Mar. 3 (p.m.)
Mar. 4 (a.m.)
Mar. 16
Mar. 17
Mar. 24 (p.m.)
Mar. 25 (a.m.)
Mar. 31 (p.m.)
Apr. 1 (a.m.)
Smoker, Red Barn -7-11 p.m.
Rules of Evidence and Practical Courtroom Application,
Ken lake Stale Park. (Co-sponsor: Murray Stale U niversily)
Closely Held Corporations, College of Law, U niversily of Kentucky
Trial Practice -Investigation, Discovery, Settlement, Discussions;
Middleton Auditorium, University of Louisville.
Practice in the New Kentucky District Courts, Bowling Green Arena.
(Co-sponsor: Western Kentucky University)
Smoker, Red Barn- 7-11 p.m.
Workshop for Legal Secretaries, College of Law, University of Kentucky
Trial Practice- Rules of Evidence and Practical Courtroom
Application, Middleton Auditorium, University of Louisville
Preventitive Law for the Employer, Kentucky Dam Village State Park.
(Co-sponsor: Murray State University)
8 Louisville Law Examiner, February 7, 1978
Pornography Research Inconclusive
(Continued from page 2) .
The results of the national opinion survey also showed wide diversity in public
opinion. When asked to name two or three of the most important social issues of
the day, only two percent of the respondents indicated a concern about por­nography.
Ranking very much above the problem of pornography were issues
like the Vietnam War, racial conflict, the state of the economy, rebellious youth,
breakdown of law and order, drug abuse, pollution, poverty, dissatisfaction with
government, moral breakdown in society, international problems, failure of the
educational system, and over population.
In the same survey, questions were asked about the impact of pornography.
Sixty-one percent of the sample felt that sexual materials provided information
about sex, fifty-six percent felt that it led to a breakdown of morals, forty-nine
percent felt that it led people to commit rape, forty-eight percent felt that it
improved sexual relations of some married couples, forty-eight percent felt that it
provided entertainment, forty-four percent felt that it made people bored with
sexual materials, forty-three percent felt that it led to loss of respect for women,
thirty-seven percent felt that it made people go sex crazy and twenty-seven
percent felt that it offered relief to people with sexual problems.
Interestingly, when asked whether these opinions about effects were based
upon personal experiences or upon their judgments of the effects upon others
most people felt that erotic materials had neutral or beneficial effects upon them
but that it did harmful things to others. For example, of the fifty-six percent who
felt that sexual material led to a breakdown of morals, only one percent said it
happened to them. Of the forty-three percent who felt that it led to a loss of
respect for women, only five percent said that it happened to them. What was -;
most striking about the results of this survey was the wide variety of opinions that ·
were held by the public, with most people feeling that they were immune to the
bad effects but that others were not.
·Some direct experiments were performed on normal volunteers. In an ex­periment
conducted ;1t the University· of North Carolina, physically and mentally
healthy young volunteer males were paid to sit in a room alone for two hours a
day, five days a week for two weeks. They had free access to a very ·large selection
of pornographic movies and projectors, magazines and books. They also had free
access to old copies of popular magazines like Life, Readers Digest, Popular
Mechanics, etc. For the first few days almost lOOOJo of the subjects' time was
spent looking at the sexual material and the psychological studies showed a high
degree of arousal. By the second week only about 30% of the time was occupied
in looking at pornography, and correspondingly the degree of sexual arousal was
low. The remainder was spent in writing letters or looking at the old popular
magazines.
Questions were asked about the effects of the exposure to the erotic material
upon their sexual activity at home and also about the degree to which the ex­periences
were disturbing or intrusive upon their work, school and social ac­tivities.
The answers showed that the experiences in the experiment led to great
increases in sexual conversation for some days and some jncrease in ex­perimentation
with new sexual positions and practices seen in the erotic materials.
But these were transient and there was no significant changes in the quantity of
sexual activity nor to changes in sexual partners over the two week period. The
experiences of the experiment were also not intrusive upon their other activities,
nor did they result in significant changes in the subjects' attitudes about the
problem of pornography.
The results of interviews with juvenile delinquents revealed that they had no
more exposure to pornography than did non-criminal youth of the same age. The
results of examination of sexual criminals were surprising in so far as it was found
that such individuals frequently came from families with high degrees of sexual
repression so that they had less exposure to graffiti and pornography as
youngsters than did age matched normal subjects.
Finally, an examination of the consequences of the liberalization of the laws in
Denmark showed that this did not increase sexual crime in that nation but that
instead, there was a slight and probably insignificant tendency toward diminution
in criminal sexual activity.
The Commission had embarked upon research in an area previously considered
taboo and which, therefore, had no data base. Pioneering research in any area, ·
and especially in the behavioral sciences, initially produces imperfect results and
truth is achieved by a series of repeated approximations. The limited life of the
Commission made any closer approximation impossible, and for this reason, one
of its major recommendations was that additional information be acquired by
further empirical research.
Despite the uneasiness about the need to come to rapid. closure on scientific
questions which merited more extensive and prolonged study, closure was
mandated by the need to report to the Congress. The most striking thing about
the findings was that despite their flaws, the evidence they generated all pointed
in the same direction. It was that voluntary exposure of adults to pornography
could not be causally related to delinquent or criminal sexual behavior. The
controversial recommendation followed from these findings.
Mr. Charles Keating, whose long-term association with the nationally
organized Citizens for Decent Literature and Citizens for Decency Through Law
before and during the Commission clearly indicates his bias in favor of tough
anti-pornography laws, has accused the Commission of bias in the selection of
the young male subjects used in these experiments. He is apparently unable to
recognize that for physicians and scientists the question of damaging effects
overrides their personal, moral or aesthetic opinions. There was no bias in the
selection of subjects and it came as a· surprise that the young men considered the
problem of pronography to be a trivial social issue. That their opinions are not an
aberration was later borne out in the national survey which seemed to indicate
that a cross-section of the population did not consider it to be among the most
significant social issues of the day.
Mr. Keating, the sole Nixon appointee to the Commission, says: "In the seven
years that have passed (since the Commission Report) have my feelings about the
Presidential Commission changed? Not at all." Mr. Keating neglects to say that
his opinions about pornography were set at least a decade before the work of the
Commission. He says: "When Congress created the Commission it asked for a
more effective means of controlling obscenity which it regarded as a national
problem." He clearly \;Vants tough legal action and no research. This is not the ,
way most of the other Commissioners saw their mandate.
The recommendation of the Commission that continued research be carried on
to replicate or to deny the Commission's findings has clearly not been carried out.
All of the Commission's cntlcs point up its -flaws but none have conducted
research or offered data to refute it. There has been virtually no research con­ducted
since the Commission stopped its work, and obviously some critics oppose
research. Instead the arguments in favor of tighter controls continue to be based
on moral and religious judgements, and aesthetic or economic community
standards.
These may be reasonable grounds for denying the recommendations of the
Commission and for tightening up antipornography legislation. If it is the public
will that this be done, so be it, but let the reasons be clear. It is not likely that the
First Amendment will stand or fall on the question of whether X-rated movies or
vulgar magazines are permitted or prohibited. It seems fair to reiterate for 1978
the statement of the Commission in 1970. "If a case is to be made on por­nography
in 1970 it will have to be made on grounds other than demonstrated
effects of a damaging personal or social nature. Empirical research designed to
clarify the question has found no reliable evidence to date that exposure to ex­plicit
sexual materials plays a significant role in the causation of delinquent or
criminal sexual behavior in youth or adults.
Diane Leroy provides emergency mac:ken for snowbound Belknap Campus squirrels after the
January blizzard.
IInutsutllt
&w iExmntntr
Louisville Law Examiner
School of Law
University of Louisville
Louisville, Kentucky 40208