Louisville Law Examiner Serving the University of Louisville School of Law Community
Volume 11, Number 1 Louisville, Kentucky, October, 1985
Private School Decision
Affects Local Classrooms 
By Bill Wilson 
The July 1 decision by the Supreme 
Court concerning Aguilar v. Felton, 105 
S.Ct. 3232 (1985), should have a direct 
impact on local public and private 
schools. It may in fact have determined 
the outcome of Barnes v. Bennett which 
is scheduled for an October 11 hearing in 
Federal District Court.
 Barnes concerns the use of federal 
funds by the Jefferson County Public 
Schools to finance remedial classes 
taught by public school teachers in 
parochial schools. A motion for
 summary judgment, filed by local
 members of Americans United for the 
Separation of Church and State, asks 
for an immediate end to the use of 
federal funds for remedial classes in 
private schools. Also requested is the 
payment of attorney's fees and the 
reimbursement to the federal 
government of funds expended since 
1965 on such classes.
 The funds involved are from a
program known as Chapter 1 (U .S.C.A.
§ 2701). The purpose of the program,
originally enacted in 1965, is to provide
financial assistance to educational
districts to meet the needs of deprived
children from low-income families. This
year Jefferson County expects to receive
$7,303,942 in Chapter 1 aid to provide
services for 12,250 public and 985 non­public
students. Approximately 60
percent of these non-public students
attend Catholic schools.
The Felton case, involving the New
York City Public Schools, was initiated
by taxpayers alleging aid to private
schools in such a manner was a violation
of the Establishment Clause. Justice
William Brennan delivering the opinion
of the Court stated, "Although
separation in this context cannot mean
the absence of all contacts, the action
required to maintain the program in this
case would produce a kind of continuing
day to day relationship which the policy
of neutrality seeks to minimize."
The Court argued that religious
schools, which have the advancement
and preservation of a certain religion as
a major purpose, would have to submit
to close monitoring by public officials to
insure that religion was not allowed to
intrude into such remedial classes. "This
pervasive monitoring by public
authorities in the sectarian schools
in fringes precisely upon those
Establishment Clause values at the root
of the prohibition of excessive
entanglement," said the Court.
Dan McCubbin, general counsel for
the Jefferson County Schools, concedes
the only real difference between the local
action and Felton are the parties
involved. McCubbin stated, "The basic
issue isn't whether to comply, it's how to
comply in an orderly manner.''
The Board of Education, in a reply to
the plaintiff's motion for summary
judgment, agrees that Felton requires
the entry of an order prohibiting the
current arrangement. However, the
Board disagrees with the plaintiffs on
three points. It contends:
1. The court should delay the effective
date of its order against the school board
until the end of the 1985-86 school year.
2. The court should not order the
reimbursement of Chapter 1 funds.
3. Attorney's fees should not be
awarded to the plaintiffs.
Joseph McPherson, Director of the
Chapter 1 Program for Jefferson
County, specifies ten problems with
implementing a new plan for non-public
students before the end of the current
school year. In an affidavit, he lists
concerns over the effectiveness of
alternative programs, the cost of
implementation, individual differences
among the 25 non-public schools in
question and compliance with state
statutes regarding teacher reassignment.
McPherson feels an orderly transition is
paramount since 60 percent of these
students are in grades 1-3 and would be
greatly affected by any changes.
McPherson also outlined five
alternatives under consideration:
1. Mobile classrooms on public
property near or adjacent to the private
schools.
2. Rental of neutral classrooms in a
public building near the school.
3. Busing of students to public schools
for classes during school hours.
4. Busing of students to public schools
for classes after school hours.
arculation 5400
photo by Nancy Morgan
5. Originate on public school premises
television programs which could be
relayed to the non-public students.
D.K. Dumeyer, associate school
superintendent for special programs
involving the Catholic schools, is not in
favor, in most instances, of busing the
children to public schools. Dumeyer
states, "When transporting the children
is going to take 45 minutes to an hour
out of our school programs, we think
that's asking too much."
The mobile classroom idea (used by
some Catholic schools in other states) is
viable in Dumeyer's view-. "A loss of ten
minutes of our time we don't consider
too much.'' He added that he had
proposed an alternative to the Ky.
Department of Education, but could not
comment further pending the
Department's decision.
Professor Robert Stenger of the U of
L School of Law thinks the Felton
decision is consistent with past Supreme
Court holdings. He predicts a
combination of alternatives will be used.
(continued on page 3)
U of L Experiments With New Admissions Program
By Jennifer C. Miller
Admissions by Performance, a new
program designed as an alternative to
the traditional admissions process, was
conducted on a trial basis at U of L this
summer.
This program allows students who
might not otherwise have the
opportunity to attend law school the
chance to do so. It also gives students an
opportunity to determine if they want to
be a lawyer without wasting a lot of time
and money. The only prerequisites are
the LSA T and a desire to study law.
U of L is the first Kentucky school to
initiate such a program, but several
schools across the United States have
already included the Admissions by
Performance program in their selection
process.
Fifty students were accepted into the
program, but only 45 actually attended
the first day of classes. Out of the 45,
four withdrew after the first week.
Out of the 41 students, 12 were
admitted into the 1985 Freshman Class,
five in the day division and seven in the
night division.
The program was conducted at night
and ran during the eight week summer
session. The curriculum consisted of two
courses, Criminal Law and Domestic
Relations, taught by Professors Quick
and Stenger respectively.
These two particular courses were
chosen because both are substantive law
courses which require the students to
analyze cases and statutory material. In
addition, no prerequisite course study is
needed to grasp an understanding of the
subject matter entailed.
The classes were held in a normal law
school setting; and due to the fact that
the program was held during the
summer session, the students were not
isolated, but had contact with second
and third year law students.
Three-hour essay exams were given.
The Criminal Law exam also included a
true or false section. In order to pass, a
seventy on each exam was required. The
students could also earn five points for
class participation, which would be
included in their grade.
Both Professor Stenger and Professor
Quick said that the motivation level of
the students was overwhelming. Proof
of this was the fact that not a single
student withdrew after the first week of
classes. In addition, every student took
both exams, regardless of any
discouragement caused by the first
exam.
The majority of the students, whether
they were accepted or not, felt the
program was fair and each student was
treated equally, according to Professor
Stenger. The only grievance towards the
program was in regard to the grading.
Many students felt that the standards set
were too high.
There will be a proposal before the
admissions committee to incorporate the
Admissions by Performance program in
the admissions process. According to
Professor Quick, in order to obtain
accurate feedback, it will be necessary to
continue the program for at least three
to four years, after which time the 1985
students will have taken the bar exam.
Professor Quick further stated that
different courses and instructors should
be utilized in order to determine the
success of the program. Professor
Stenger added that the only change that
he would make would be to limit the
number of enrollment to 40 students
instead of 50 because that is the ideal
number to work with effectively and
efficiently.
2 Louisville Law Examiner, October, 1985
Louisville Law Examiner
EDITORIAL BOARD
Joel D. Zakem
Editor-in-Chief
Nancy Morgan
Photography Editor
Tom Ransdell
J .B. Phillips
Associate Editors
Benjamin Johnson
Managing Editor
Rebecca Ward
Brandeis Brief Editor
Winnie McConnell
Night Associate Editor
STAFF
Jennifer C. Miller Bill Wilson
Profeaor LAURENCE W. KNOWLES, C,11Mila11l
The Louisville Law Exaptlner is published six times during the academic
year in the interest of the University of Louisville School of Law community.
Articles are invited from faculty members, students, and members of the bar
who wish to do freelance work. Any proposed article should be cleared with
the Editor as to topic and length.
Address all communications to The Louisville Law Examiner, School of
Law, Univer-sity of Louisville, Louisville, Kentucky 40292.
Phone: S02-S88-6398.
Kentucky Protects
Bar Exam Results
By J.B. Phillips
Undoubtedly, of all the hardships that
one must endure to become an attorney,
one of the most grueling rites of passage
that an aspiring attorney must face is
sitting for his or her bar examination.
With this in mind, imagine the
devastation that 542 New York bar
candidates suffered when their Multi
State Exams disappeared from the local
offices of the New York State Board of
Law Examiners.
In fairness to the New York Bar
Examiners, some 6,562 candidates sat
for the exam this past July. However,
this offers very little consolation to those
candidates who after eight weeks of
intensive study, and two days of exams,
face the nightmare of retaking the MBE.
The lives and professional careers of
these candidates have been tragically
disrupted.
In an interview, Judge Stuart Lampe,
a Kentucky Bar Examiner, outlined the
general procedures and security
measures employed in Kentucky. In
reference to the New York situation,
NOTICE
If you have any out-of-date books
in the SBA/Law School Book
Exchange, they must be claimed by
November 18, 1985. Books not
claimed will be disposed of.
Thank You
The SBA
S.B.A.
Judge Lampe began the conversation by
saying, "I hope that it doe n't happen
here."
He explained that the Kentucky Board
of Bar Examiners consists of six
members. Each member formulates two
questions. These twelve questions
comprise the essay portion of the
Kentucky Bar Examination.
Following the exam, each member of
the Board carries home the papers that
contain the respective questions that
each member formulated. Each member
is responsible for his or her papers, and
uses his or her best efforts to maintain
the security of the papers and the
integrity of the Bar.
The M BE, however, is treated
differently. The Executive Secretary of
the Board in Lexington gathers the
papers for the MBE after the exam. The
Secretary then puts them under lock and
key in the office, and subsequently
forwards the answer sheets to the
University of Florida in Gainesville
where they are graded by computer as
soon as possible.
The MBE consists of 200 multiple
choice questions. In New York, a
passing grade is determined by
combining both the scores from the New
York essay and multiple choice portions
of the exam with the MBE. Candidates
who fare poorly on one portion of the
exam may boost their overall score with
a better performance on the other.
Judge Lampe pointed out that the
number of applicants taking the exam in
Kentucky is usually only a fraction of
the number of New York applicants.
Moreover, he thought that it was
unlikely that the same problem would
crop up in Kentucky although he could
not rule out the possibility.
Letter To The Editor:
PFO Law Challenged
Why does it seem, that whenever it is
election time there are more pebple
convicted of non-violent felonies who
fall under the Persistent Felony
Offender I statute? Those who qualify
for the PFO I sentencing need only have
two prior felony convictions. The
alarming rate at which the population in
the state prisons are growing, appears to
rise more in relation to tough sentencing
statutes, rather than to an increase in the
crime rate.
Some may call this politics. How can
this be justified? Statistics show the
majority of the people sentenced under
the PFO I statute are from low income
urban areas. Many have committed a
series of non-violent felonies, some as
insignificant as a $150.00 bad check.
Many cannot afford an attorney at
$15,000.00. Poor people must get a state
appointed attorney, who is underpaid
and overworked. Despite their best
efforts, these attorneys really can't
represent their clients best interest,
because of their work load.
It costs our taxpayers approximately
$15,000.00 to keep one person locked up
by the Department of Corrections for
one year. Judges are asking taxpayers to
pay $15,000.00 for each person
sentenced to prison for ten years for an
often minor non-violent offense.
How large is the bill? There are
approximately 500 people sentenced
under the PFO I statute. While I have no
statistics on male offenders, it is
significant that none of the women in
Kentucky prisons are sentenced under
PFO I are incarcerated for violent
offenses. None have any violent felonies
in their records.
Taxpayers spend $7,500,000.00 (seven
million five hundred thousand) annually
to keep PFO I offenders incarcerated.
Although some of these sentences are
justifiable based on repeated acts of
violence, however 30 percent are non­violent
offenses. No wonder there is so
little money for schooling, psychological
services, or even adequate bed spacing in
prisons. Too many valuable dollars must
be allocated for food and supervision of
such offenders.
As you may have guessed by now, I
am one of the four women sentenced
under the PFO I statute. How do they
determine whom to give the PFO charge
to and not to give it to? According to
KRS 532.080, all one needs to be eligible
for the PFO I is two prior felony
convictions. My offense was a non­violent
crime. Yet I have to spend ten
years of my life paying for it, when there
are women here who are sentenced on
serious, violent crimes (such as murder,
manslaughter, reckless homicide, armed
robbery, assault, etc.) who will be
released much sooner than I will.
The psychological effects of the
reality of prison life for ten years on
anyone, especially a female, is
tremendous. The maternal instincts
readily come to mind. The instinct to
love, protect, and care, are in daily
conflict with the demands of self­survival.
Mental toughness is first in a
woman's prison. I am taken away from
my loved ones and miss the sharing we
once had, talking on the phone is
becoming very distant and the visits have
begun to lessen.
Waiting for the next seven and half
years to pass so we can be together
again, seems like a lifetime away. I often
feel that I will never be released from
here. I keep telling myself that day will
come and I try to think rationally and to
stay as busy as I am allowed. I have
begun to depend on the protected society
I now live in. I can't help but wonder
what the 1990's are going to be like, and
what it is going to be like after living in
this protected society for ten years and
then being released is very scary.
This is what the courts could be
offering instead of spending
$2,250,000.00 a year:
1) An intensive-supervision parole
program. The cost would be less than
$15,000.00 a year required to keep an
offender in prison. It takes $800.00 a
year to keep an offender on parole,
according to statistics from the
Sentencing and Overcrowding
Commission, appointed by former
Governor John Y. Brown;
2) Work-oriented pre-release
programs to gradually reintegrate
offenders into society;
3) A re-evaluation of the persistent­felon
laws. The number of those in
prison under the existing persistent-felon
laws have risen from 79 in 1979 to 1400
as of July, 1985;
4) More minimum-security facilities,
which will allow those sentenced under
the persistent-felon law to be able to
serve there;
5) Developing a community-based
restitution program, in which offenders
live in a controlled environment, work in •
the community, contribute toward the
cost of their meals and housing, and pay
restitution to the victims of their crime;
6) Working voluntarily for the state
for a period of time to be decided by the
courts;
7) Give the parole board discretion to
review individual PFO offender at least
after half of their time has been served;
8) Reduce all class C and D felonies to
PFO second degree.
I do believe the PFO I can be a
valuable instrument if applied
appropriately to violent offenders, but
how can one justify sending someone to
prison for ten years for a series of non­violent
minor offenses? The Supreme
Court states, "A prison sentence must
fit the crime," Solem v. Helm, 103 S.
Ct. 3001. This set a precedent regarding
the proportionality of a prison sentence
fitting the crime committed.
The Supreme Court went on to say,
"that a jail sentence may be
unconstitutional if it is too long for the
crime that the defendant committed."
Based on this recent ruling, and the
Eighth Amendment to the U.S.
Constitution, I feel that a ten-flat year
sentence for a non-violent crime is
definitely "cruel and unusual
punishment." Does this sound like the
sentence fits the crime?
Beckie Harp #2202
Kentucky Correctional
Institute for Women
Pewee Valley, Kentucky 40056-0337
Louisville Law Examiner, October, 19S5 3
... ·: ::.: :. ·: .: .; · .... NIGHT and DAY
Night Students Praise Clerking Experience
By Winnie McConnell
So you're thinking about finding a job
as a law clerk in a local firm, but you're
uncertain if the benefits will outweigh
the minimal salary and irregular hours
associated with the position. Any
skepticism you have about such a
position may be eliminated once you
read what several students have to say
about their law clerk jobs.
"It's a great experience for any law
student," said Terry Cushing, a fourth­year
evening division law student. "I
would recommend clerking to anyone
because if gives you a more practical
outlook about the law." ·
Cushing, who has been a law clerk in
the U.S. Attorney's Office since June,
1984, said his post entails writing
appellate briefs and responses to
motions in district court.
"Most of my research is concentrated
in criminal law," he said, adding that he
plans to pursue a career in criminal law.
"I would like to become a prosecutor
and I believe my law clerk experience
here will give me a better chance to work
with a government agency."
Cushing feels clerking has improved
his writing abilities. "I've learned how
to write much better which helps me to
write better law exams," he said .
To Cindy Shirooni, her basic legal
research skills have excelled because of
her new clerk position. Her research has
primarily focused on contract law.
"It's tiresome to do research all day
long but you get used to it and you
realize that it's great experience for
you," said Ms. Shirooni, a second-year
night law student. "You learn more by
doing."
Ms. Shirooni said night students have
a slight advantage over day law students
when it comes to law clerk positions. "I
think the fact I am a night student is in
my favor because I am able to work
more hours each day, whereas a day law
student can only work two to three
hours in a day," she said. "This gives a
night student more time to do research
for the law firm."
According to Ms. Shirooni, a law
clerk position is advantageous in that it
offers law students an opportunity to
meet prospective employers.
Terry Mann, another second-year
night law student, is finding out that his
law clerk job has helped in his law
studies. "Before I began my law clerk
job I found it difficult to sit down and
study for two consecutive hours," he
said. "Now, I am able to study the law
for five hours!"
Smaller Firms Should Use Placement Service
By Phyllis Leibson
Placement Director
Most of the law firms in this country
are "small" law firms - containing
fewer than 20 attorneys. The majority of
these firms do not become involved in
fall, on-campus recruitment. Thus,
small firms may end up feeling that
many students who they might be
interested in have already accepted
positions by the time most small firms
seek to fill their personnel needs.
Typically, a small firm 's personnel
needs are immediate. However, on­campus
recruiting does increase the
placement of students. I am suggesting
that small firms join the bandwagon
occupied by the larger firms and
schedule on-campus interviews.
A firm's presence on campus
definitely increases the firm's visibility
and enhances the firm's reputation
among the students. Arranging an
interview at the law school could also
save time and money.
All the arrangements are handled by
the Placement Office. The
lawyer/interviewer sets aside one day to
be devoted to recruitment. This may
take less time than trying to arrange
interviews at the firm's office between
clients' appointments.
Discrimination Charge
Sparks Investigation
By Tom Ransdell
The NAACP has begun to investigate
complaints of racial discrimination
made against the University of
Louisville Law School.
Geoffrey Ellis, president of the
Louisville NAACP, said that there have
been "several written complaints against
the Law School, but we are investigating
all of the professional schools at the
University of Louisville."
Ellis declined to elaborate on the
nature of the complaints against the Law
School, saying only, "the problem does
not seem to· be academic."
Dean Barbara Lewis of the University
of Louisville Law School says that the
Law School actively recruits qualified
minority students, because "a diverse
student body and faculty enhances the
education of all the students."
"However," Lewis said, "the Law
School only recruits applicants they
think will be successful, and by
successful I mean graduating from law
school and passing the bar."
She also pointed out that the Law
School recently won the University
Award for affirmative action.
The NAACP investigation of the
University's professional schools stems
from a claim made by Dr. Albert Ngoyi
that he was dismissed from the Medical
School's residency program because he
is black. The University has refused to
elaborate on the dismissal of Ngoyi
because it ''involves personnel issues
and matters of student performance that
must remain confidential."
It is not too late to arrange for fall
interviews. However, if you will not
know your exact personnel needs until
later in the year, spring on-campus
interviews may be another way to
facilitate recruitment.
If coming to U of L does not seem
practical, the second best way to attract
a number of candidates is to notify the
Placement Office. The office will post a
notice on the Placement Bulletin Board
and it will also be included in Going
Places. Going Places is a job newsletter
sent to recent graduates and other
alumni.
The employer also has the option of
using "blind ads," in which resumes are
submitted to the Placement Office,
which then forwards the resumes to the
employer.
To gain maximum exposure, a small
law firm may wish to join the National
Association for Law Placement
(NALP), whose membership includes
many large firms and law schools. By
filling out a NALP profile form, your
firm will be included in the Directory Of
Legal Employers, which is distributed to
nearly all the law schools in this country.
Small law firms can also utilize the
Placement Office for aid in the
recruitment of experienced attorneys.
The office keeps an active file of
resumes from alumni who are presently
working, but are interested in other
career opportunities. Representatives of
the firm may review this file.
If a small firm is interested in students
or graduates for clerking or attorney
positions, they can contact the
Placement Office at (502) 588-6368. The
office will be glad to serve you in
meeting your special recruitment needs.
Phyllis Leibson, Placement Director
of the U of L Law School, will be
contributing a regular column for the
Law Examiner.
Mann said he hopes his clerking
experience will guide him in deciding
what area of the law to pursue. "I think
it will offer me a chance to see if I want
to work in a large law firm rather than in
a smaller one," he said.
For Kathy Holder, a fourth-year night
student, a law clerk job this summer
convinced her that it was an invaluable
experience.
As a law clerk you will learn how to tie
several issues of the law together in a
single situation, according to Ms.
Holder.
"I think you learn so much as a law
clerk that it should be a required
course," said Ms. Holder. "It makes
you more efficient in your work and
teaches you how to conduct yourself as
an attorney. It will also build your
confidence. Even if you only clerk for a
few hours, it's worth it."
PllyiHs Leibson
Court Decision
(from page 1)
Stenger feels the strong public policy
toward Chapter 1 remedial education
will cause public schools to continue
providing such classes for private
students in some form. "The private
schools have always given remedial
students to public schools. The state
seems to be an educator of last resort."
Dumeyer agrees. "We hire an
adequate number of classroom teachers.
We don't have the expertise to take the
children out of the class and give them
extra instruction. We don't have the
wherewithal to do that."
Dumeyer, unsure of the effect the
decision will have on Catholic school
enrollment, states, ''A lot of our parents
are making in some cases extreme
sacrifices to keep their children in
Catholic schools. I just don't believe any
of our parents put their children in
Catholic schools because there was a
Chapter 1 program. Now whether or not
they will take them out because there
isn't, I can't say."
4 Louisville Law Examiner, October, 198S
BRANDEIS BRIEF ... Parents Right To Withhold
By Steven R. Smith
Professor Steven R. Smith University of
Louisville School of Law, is an associate
in Community Health at the Louisville
School of Med. & author of "Life &
Death, Decisions in the Nursery; New
York Law Review (1982)."
Under what circumstances is it legally
permissible for parents to cause the
death of their children by withholding
treatment, and what process is
appropriate to ensure that treatment is
not otherwise withheld. It isn't a new, or
small, problem.
More than a decade ago, an article in
the New England Journal of Medicine
estimated that 140Jo of all infant deaths
which occurred in a major medical
center were the result of withdrawing or
withholding treatment. In an
appearance before a Senate
subcommittee, one of the authors of the
study told Senator Kennedy that he
estimated "a couple of thousand infants
a year (died) who would have survived if
treatment had not been withdrawn."
While some argue that this number is
now lower than it was ten years ago,
others argue that with new technology
the number of preventable deaths
resulting from withholding treatment
may in fact be rising.
Physicians with or without parents,
and generally without formal review,
commonly make these life or death
judgments on an ad hoc basis without
any clear understanding of when they
may legally withhold or withdraw
treatment. In reaching these decisions,
principles which are not acceptable to
the law may be applied de facto. For
example, if lifesaving treatment which is
routinely given to normal infants is not
given to mentally retarded or other
abnormal children, life and death
treatment decisions are based on I.Q. or
disfigurement. The decision not to
provide lifesaving treatment is so
profound that it should be based on
principles which are clear and generally
acceptable.
Commentators sometimes confuse
this issue with the abortion question or
whether a competent adult may refuse
treatment for himself. In fact these
issues are not closely related. An adult's
decision to refuse lifesaving treatment
may be based on his own belief systems
in which he chooses the course of action
based on his hopes, fears and view of
life; no such autonomy right can be
exercised by infants. The abortion
debate is, at its core, a debate over when
human life (or "personhood") begins.
Almost no one seriously argues that the
infants involved in refusal of treatment
cases are not human beings, subject to
the protection of the law. Thus it is not
at all inconsistent for someone to: (l)
favor a broad right of competent adults
to refuse lifesaving treatment for
themselves; (2) support abortion rights;
and (3) support strong protection of the
legal rights of newborns.
The distinction between "ordinary"
and "extraordinary" treatment, has also
given rise to much confusion. Ordinary
treatment is that which is generally
accepted and customary under the
circumstances. Extraordinary treatment
may mean experimental treatment, or
treatment with a very high cost/benefit
ratio. It may also mean very invasive
treatment or treatment which most
people would reject. Extraordinary
treatment may refer to such a variety of
different concepts that it cannot
legitimately be used in making non­treatment
decisions for infants or
others. The use of the term by courts
and commentators is confusing and
dangerous.
Parents are generally empowered to
make medical decisions concerning their
infant children. This authority rests on
the right of privacy of parents in child
rearing and on the common law
assumption that parents have the
greatest possible interest in the well­being
of their children. In practice, of
course, parents' medical decisions may
be influenced by factors which are not
consistent with the best interest of the
child.
State has interest in
parents' obligation
The cost of care, the effects of the
child on the family, the fact that the
child is unplanned or "unwanted," the
parent's religious beliefs, failure of the
parents to fully understand medical
treatment issues, or emotional problems
of the parents may all affect the parents'
medical decisions concerning the child.
But courts have significantly limited the
right of the parents to make medical
decisions which will result in the child's
death.
Parents have an obligation to care for,
and protect their children. During the
last hundred years children have moved
from being little more than chattels of
their parents, to individuals with
increasing legal protection. Decisions by
parents to withhold consent for blood
transfusions, vaccinations, abortions,
and to refuse chemotherapy for their
child's cancer are all examples where
parents' decisions concerning medical
treatment have been overturned by the
courts. Child abuse and neglect statutes
routinely provide for interference with
parental decision-making when the
child's health or life is endangered. As
the Supreme Court has said in another
context, "In our society, parental rights
are limited by the legitimate rights and
interest of their children. Parents may be
free to become martyrs themselves, but
it does not follow they are free ... to make
martyrs of their children."
The state has a strong interest in
protecting human life. Thus, when the
parents' decision as to treatment places
the infant's life in unnecessary jeopardy,
the state has a strong interest in
reviewing that decision.
Standards for Refusing Treatment
A general rule can be stated that
parents may not withhold lifesaving
treatment from their children. Are there
legitimate exceptions to this general
rule? Since any exceptions to the rule
involve the death of the very weakest in
our society, the exceptions should be as
narrow and as clear as possible.
Although many standards have been
put forth to justify withdrawal of
treatment from infants, most of the
proposed standards can be grouped into
six categories:
-when the quality of life would be
low
-when the burden on others would
be great
-when the child has a terminal
condition
-when the treatment proposed is
experimental
-when the treatment proposed is
extremely risky
-when some quantity (or length) in
life is traded for an increased quality of
the life that remains.
Our inquiry here is to determioe which
of these are legitimate bases for
withholding treatment.
A threshold issue is whether
"defective newborns" (infants with
mental or physical abnormalities) should
be treated differently than "normal"
newborns. The quality-of-life and
burden-on-others categories force us to
face this issue.
Quality of Life
Consider a newborn with a bowel
obstruction which can be corrected with
modest risk by relatively simple surgery.
Death, probably only after a long period
of suffering, is almost certainly the
result of nontreatment. Suppose three
infants suffer from this condition, one
infant is normal, one has been born
without legs, and another is profoundly
retarded. We may assume that the law
would require that the first child be
given treatment to save its life even over
the objections of the parents. Should the
second child or the third child be treated
differently because of the
abnormalities?
Subjective standard
not reasonable
In some ways it seems inhumane to
force someone to live a life of low
quality. On more careful reflection,
however, permitting the termination of
another's life because of a feeling that
the life is not worth living poses very
serious dangers. It rests on the
assumptions that reasonable judgments
about the quality of another's life can be
made, and that the life of an abnormal
child is so much less acceptable or
meaningful than that of a normal child
that allowing or causing the death of the
abnormal child is justified.
But the quality of life can legitimately
be measured only from the point of view
of the person actually experiencing the
life. Even a life that includes pain may
well be preferable to not experiencing
life at all.
In fact, we often do not know enough
about the quality of tlte life of a
defective newborn to make these
judgments. Some may view the quality
of life prospects for a child born to a
large, uncaring family living in poverty
to be quite limited, but it does not seem
proper to withhold lifesaving treatment
on that basis. In the 1960's at least one
court suggested than an illegitimate child
might have a cause of action against his
biological father because it might have
been better not to have been born at all
than to have been born illegitimate. A
severely depressed father may threaten
to kill his son, whom he loves very
much, to protect the child from the pain
and suffering he associates with life, it
being difficult for the father to
understand what pleasure the child
might find in life.
In a different way, it is difficult for us
to appreciate what the life of a defective
newborn is like. We cannot possibly
view life through the sensibilities of such
a child. In fact, the quality of life of a
profoundly mentally retarded infant, or
infant with other defect, may not be
dramatically lower than it is for other
children.
There is such a variety of views about
what is valuable in life that it is unlikely
there could be any agreement on what is
"valuable" even if we could fully
understand what a defective child was
experiencing. Such a standard for
judgment is much too subjective to be of
use.
Burden on others
The great burden that a defective child
may place on a family or society is
sometimes offered as a reason to permit
the withholding of lifesaving treatment.
This concept is mentioned with
surprising frequency in discussion with
physicians and in the medical literature:
This may be the most frightening
argument for permitting the death of
newborns. The great sympathy we feel
for families facing these problems
should not blind us to the principle that
is being suggested. The disruption of the
family may be an argument for allowing
the family to give up custody and
control of the child; it is not an
argument for allowing the family to
cause the death of the child.
The proposition that one person's life
should be ended by others to avoid
potential social or economic harm is
contrary to the most fundamental
concepts of individual rights and
protection central to our laws and
constitution. It would surely be
unacceptable as a general rule of law and
there seems to be no legitimate reasons
to apply such a principle to defective
infants. However, should the principle
be established that treatment may be
refused for infants when their lives are
too costly to others, there would be no
strong reasons not to apply the same
principle broadly, to the mentally ill, the
seriously handicapped, the elderly
infirm, and so on.
The state has as strong an interest in
protecting the life of a defective infant
as it does in protecting the life of a
normal infant. To suggest that the
state's interest in preserving life is
somehow reduced by a defect would be
to alter seriously the traditional legal
view -of the value of human life. If a
disgruntled employee of a hospital
enters the nursery and stabs two infants
at random and they die, the attacker is
Louis-ville Law Examiner, October, 1985 5
Treatment Examined
equally guilty of homicide whether the
death is of a normal child or a defective
one. The employee may not defend
against the charge of killing the defective
child by claiming that the state's interest
in protecting its life is not as strong as it
is in the normal child.
If both children are only injured but
require blood transfusions to live, it
would be anomalous to suggest that the
state may properly order the transfusion
(over parental objection) for the normal
child, but not the defective child because
the state does not have a strong interest
in preserving the defective child.
Beyond the philosophical problems of
imposing a "burden on other-s" (or
"broad utilitarian" approach) to infant
treatment cases, consider the practical
application of the principle. The
calculation is incredibly complex and
extremely speculative. In part it requires
a prediction of the "net utility" (broadly
defined, pleasure less displeasure) the
infant will experience from life; that this
be calculated on the basis of how the
infant himself will perceive this pleasure
and pain; and finally that the infant's
predicted net utility be compared with
the predicted pleasure and pain that the
infant will bring to the family and any
number of other individuals, from their
own perspectives. This calculation is so
speculative as to be impossible.
Situation discourages
objective decision
It is the kind of speculation, in part,
that makes a "too costly to society" or a
"life not worth living" principle
dangerous. Without any reliable
information on which to make these
decisions, physicians or parents make
them on the basis of hunches, fears,
suspicions, and prejudices, and often on
a feeling that lives substantially different
from our own are imperfect.
These are generally inappropriate
bases on which to make life and death
decisions, and may often cause us to
undervalue considerably the lives of
those who are different. It is impossible
to understand with any precision lives so
different from our own, and yet that is
what a quality of life or burden on
others calculation requires. Paul
Ramsey, an Ethicist, a Professor at
Princeton University, and the author of
"Ethics at the Edges of Life" 1978,
concludes, "If physicians are going to
play God under the pretense of
providing relief for the human
condition, let up hope they play God as
God plays God."
The very speculative nature of the
quality/cost of life or burden on others
decisions might be viewed by some as a
reason to leave this calculation in the
sphere of parental child rearing decision­making:
when we cannot predict with
certainty what is in the best interest of
the child or family, we should leave it to
the parents to decide. To one degree or
another, of course, the future quality of
life of any child is uncertain and
speculative.
The degree to which that uncertainty
increases in abnormal children is far
from clear; many Down's Syndrome
children are said to be quite happy, for
example. While uncertainty about the
future of a child or the desirability of
some forms of treatment does create
substantial latitude in the family, it does
not create a general power in the family
to withhold treatment when that
decision would cause the child's death,
even when the family claims to be acting
in what they perceive to be the broadest
best interests of the child. A parental
decision that it is better for a child to die
for lack of blood than to violate God's
commands by accepting a transfusion
cannot be supported on the basis of the
uncertainty or speculative nature of
what is in fact in the long term best
interest of the child. Nor could a
decision to upheld to withhold a
transfusion because the parents believe
that a child's life will not be worth living
due to a missing limb.
Furthermore, the parents of defective
infants may be in a particularly bad
position to make speculative quality or
cost of life calculations when life and
death decisions are involved; they may
have conflicting interests or be
emotionally unfit to make the decisions.
In many nontreatment cases, the
defective child is refused treatment not
because of the costs or discomfort of the
treatment itself but because of the
nature of the child's life. In these cases,
it is not a decision about treatment so
much as it is a decision whether to take
advantage of the fortuitous presence of
a life-threatening disease to cause the
death of the infant.
Terminal Condition
Children with terminal illnesses may
present special considerations. In some
instances, special factors may
legitimately affect treatment decisions.
Where, for example, it is coupled with a
terminal illness especially where it is
likely to cause death before, or at about
the same time as, the treatable condition
would if left untreated. Terminal
illnesses may also make common
treatment impossible, very risky, or
extraordinarily painful.
However, the fact that an infant has a
terminal condition, or less than a normal
life expectancy should not, in itself,
justify all refusal of treatment. The state
maintains a strong interest in preserving
life, regardless of the length of life
expectancy. Thus homicide statutes
apply equally, whether the victim is 100
years old or 20 years old.
The existence of a terminal condition
would, however, justify refusal of
treatment where treatment becomes
futile (would not appreciably extend life)
or otherwise makes lifesaving treatment
impractical.
Experimental treatment
A strong argument can be made that
parents should not be forced to accept
for their children, truly experimental
treatment. Requiring an experimental
treatment would provide a source of
research subjects, imposing an
obligation to make the infant a human
guinea pig. Parents of a child suffering a
life-threatening condition will often seek
experimental treatment as a last hope,
but such treatment should not be
photo by Nancy Morgan
Prof. Ste-ven R. Smith
imposed against the parents' will.
Risky treatment
At some point, the risk of lifesaving
treatment may become so significant as
to actually reduce the child's life
expectancy. The decision to accept
treatment is then based on a comparison
of the relative chances for survival as a
result of treatment or nontreatment.
Here the choice is to promote the infants
life, and the treatment may be withheld
to maximize the chances for the longest
period of survival. This differs
dramatically from the before-mentioned
decisions to withhold treatment
described above where the decision to
refuse treatment is made in order to
minimize the infant's life expectancy.
Trading quality for quantity
When the risk is that the treatment
will dramatically reduce the infant's
ability to appreciate and enjoy life, then
a true "quality of life" versus "quantity
of life" issue is presented. These
decisions are fundamentally different
from withholding treatment to cause
death. These decisions, in effect, result
in trading some length of life (or the risk
of shortening life) for some
improvement in the life that remains.
These tradeoffs, common in medical
treatment, are reasonable in infant
nontreatment situations as long as the
improvement in life quality is substantial
compared with the level of risk to life,
that is, where there is a legitimate and
reasonable improvement in the quality
of life resulting from nontreatment.
Giving pain palliatives when there is
some risk they may cause the early death
of an infant may be justified on the
grounds that the quality of life is
improved even at the risk of shortening
it somewhat. This is a much different
concept than giving the pain palliative,
even in the absence of significant pain,
to cause the death of the infant.
Treatment decisions that risk
shortening life for the sake of quality of
life, (e.g., a life with less pain), require a
comparison of a life with pain to a
shorter life without some of the pain.
Comparing these two lives, although
difficult, probably calls for judgments
closer to the range of human experience
than an effort to judge, in some absolute
terms, whether a life is worth living at
all.
Standards for withholding treatment
Thus it appears inappropriate to
withhold lifesaving treatment from an
infant because the life of the child is not
worth living or because the infant's
existence places too great a burden on
the family or society. These two reasons
for not providing treatment are not so
much treatment decisions as decisions to
take advantage of a life-threatening
condition to cause the death of the
infant.
It does seem permissible to withhold
lifesaving treatment if: (1) the treatment
would be futile in that there is no
reasonable hope it can extend
significantly the life of the infant; (2) the
proposed treatment is experimental; (3)
the treatment is so risky that it cannot be
said to maximize the infant's life
expectancy; or (4) the probability that
the treatment will cause substantial pain
or suffering is not offset by the
corresponding probability that it will
increase the length of life.
Whether to let nature
take its course
Acti-ve and Passi-ve Euthanasia
A distinction is commonly made
between passive euthanasia (death
caused by inaction) and active
euthanasia (action taken to cause death).
The active/passive euthanasia
distinction is somewhat artificial in
many infant care decisions. There seems
to be no real difference between (A)
taking direct action to cause death and
(B) withholding treatment when the
purpose of inaction is to cause death.
The decision to withhold treatment is
being made by those responsible for the
care of the child and the failure to
provide for medical care necessary to
sustain life is a breach of the duty of
care. The concept of "letting nature take
its course" (e.g., letting an untreated
infection or bowel obstruction cause the
death of an infant) suggests that it is
appropriate to permit death to occur by
inaction (natural causes) when it would
be inappropriate to directly cause death.
As a general principle, however, this
broad let nature take its course
proposition is unacceptable. We surely
are not willing to "let nature take its
course" by letting an infant starve to
death, nor drown if it fell into a lake,
nor freeze to death by letting it wander
into the elements. In fact, we are not
prepared to let nature run its course by
refusing to treat a serious infection with
antibiotics if the infant is normal. The
duty of parents is to protect their
(continued on page 6)
---
6 Louisville Law Examiner, October, 1985
Hicks Brings Teaching Experience To U of L
By Joel D. Zakem
Although this is his first tenure track
teaching position, law school teaching is
not entirely new to Professor Renardo
L. Hicks. As part of his LL.M. program
in Legal Education at Temple
University, Hicks taught classes for two
years.
Hicks recently began his first semester
as an Assistant Professor at U of L,
teaching night classes in Criminal Law
and Professional Responsibility .
"The night classes have worked out
well, so far," said Hicks. "I have all day
to be with my family. "
Hicks, who is married and has two
daughters, added that, while he is
satisfied now, "I'm not sure that I want
to teach only night courses forever."
The enthusiasm of the students at U
of L has impressed Hicks. He also
expressed satisfaction at the. size of his
classes.
"At Temple, the Evidence class I
collaborated in teaching had 175
students," he said. '·'Here, with 52
people taking Criminal Law and 24
enrolled in Professional Responsibility,
the classes are more manageable."
Hicks said that one of his teaching
philosophies is that different subjects
require different teaching methods, and
he plans to tailor his teaching to fit the
course. "At Temple, I was able to
experiment with various teaching
methods including the use of
simulations, the case method, and,
where appropriate, role playing," he
said.
While looking forward to becoming a
tenured professor at U of L, Hicks
admitted to being a ''trial lawyer at
heart."
"Once tenured, I hope to do more
trial work," he said, "even if I have to
do it for free."
At Temple, Hicks was an Associate in
the Temple Legal Aid Office, where he
handled approximately 30 cases a year as
well as supervising some students. While
going for his J.D. at Northeastern,
Hicks participated in a variety of co-op
programs which included doing research
for the Department of Revenue, clerking
for a federal magistrate, acting as a
student attorney in the Public
Defender's office, and working at a
Withholding Treatment
(from page 5)
children against such life-threatening
"forces of nature."
If a parent does not have a duty to
provide medical treatment because the
life of the infant is viewed as not worth
living, logic suggests that the parent
hould be able to decide on active
euthanasia. Indeed such administration
may be viewed as humane for the same
reasons that withholding treatment is
viewed as humane: active euthanasia
enables the infant to avoid a life not
worth living or filled with pain . In the
example of the infant with the bowel
obstruction, failure to perform surgery
will result in a period of painful waiting
for an almost uncertain death . This pain
could be avoided by the administration
of euthanasia. The infant's quality of
life while awaiting death would be even
worse than the low quality of life with
treatment.
If one accepts this line of reasoning,
active euthanasia would not be limited
to merciful shortening of the lives of
only those infants with poor life quality
who fortuituously develop other life­threatening
diseases. If a Down's
Syndrome or Trisomy 13 child has such
a poor quality of life that lifesaving
treatment can legitimately be withheld,
it seems unreasonable, and even unfair
to the infant, to require that he develop
a life-threatening disease ending his life.
The above should not, of course, be
taken as an endorsement of active
euthanasia. It is meant to suggest that
the blanket distinction between active
and passive euthanasia cannot be
supported when the purpose of
withholding treatment is to end a life.
Such decisions are not merely treatment
decisions. They are decisions to use the
life-threatening condition as the means
of terminating the life and, when made
by those with the duty of care, this
nontreatment is similar to direct
euthanasia.
Decision-Makers and Procedures
Standards governing nontreatment
decisions will be effective only if those
making treatment decisions actually
apply the proper standard. As we noted
earlier, there is reason to believe that a
number of nontreatment decisions are
made which violate what the law
apparently requires in terms of
treatment. At the very least, these
medical decisions are being made
without any serious effort to the
requirements of the law . In some cases,
the decision-making process may be
ineffective either because the physician
does not adequately consult with the
parents or because the parents or the
physician have interests which conflict
with the best interest of the child.
Although well-intentioned, they may
find a defective infant emotionally
difficult to accept, and an
understandable sense of anger and guilt
may interfere with their ability to make
treatment decisions in the child's best
interest. They may not wish or be able to
support the child, or they may see the
child as disruptive of the family or
marriage. It is hard to imagine a time
when parents are less likely to be
emotionally well-suited to make life and
death decisions in the best interest of a
child than shortly after they realize that
the child may be seriously defective.
The critical life and death nature of
the decision, the evidence that decisions
have been made in the past without any
serious efforts to determine whether
they conform to the law, and the
potential conflict of interest between the
child and the decision-maker suggests
the need for a review of nontreatment
decisions which may result in the death
of the child.
A judicial review to determine
whether nontreatment decisions adhere
to legal standards might be desirable,
but such a system would undoubtedly be
so cumbersome and slow that it would
be ineffective in many cases. The federal
three-person firm in Philadelphia, where
he occupied the second seat at a number
of trials.
For now, however, teaching is Hicks'
primary concern. "I'm on a tenure
track," he said, "and I'll do whatever it
takes to be tenured."
photo by Nancy Morgan
Professor Hicks makes a point.
government, and many commentators,
have suggested that an ethics committee
might be able to respond more quickly.
But the diversity of backgrounds which
would make such a committee valuable
might also make it extremely difficult to
convene quickly.
An alternative would be to have a
review team consisting of a physician
and an attorney. The attorney would
provide expertise in applying the legal
standards and the physician an
independent medical view. Treatment
could not be withdrawn or withheld
unless both members of the team
certified that nontreatment was
appropriate, the attorney determining
that legal standards were met and the
independent physician determining that
the medical conditions of the infant had
been assessed correctly. If the team were
appointed by a court, and had the
responsibility of reporting back to the
court, this process would provide for a
timely review and, at the same time,
would offer significant assurance to the
treating physicians that they were not
violating the law in withholding
treatment. The attorney could bring
unresolved legal issues to the attention
of the courts. Such an approach would,
of course, require physicians to give
notice before withholding lifesaving
treatment.
The attorney and independent
physician review appears to have real
promise. It avoids cumbersome court
and committee procedures and allows an
informed interdisciplinary review of
critical nontreatment decisions. Such a
review process, using narrowly defined
nontreatment standards, might be
established by hospitals in an effort to
meet their obligations to avoid
discrimination against handicapped
infants.
In addition, some formal reporting of
nontreatment decisions is appropriate.
All states now have child abuse
reporting statutes requiring medical
personnel to report suspected child
abuse or neglect. Some states require
reporting of abortions or certain
prescription drugs. Withholding
lifesaving treatment is a matter of even
greater importance than any of tliese
because it involves the death of a human
being. Requiring the report of such
nontreatment seems quite reasonable in
light of the gravity of the decision and
the difficulty of adequately enforcing
legal standards without such reports.
Decisions to withhold lifesaving
treatment from an infant should be
recorded along with the reasons and
basis for the decisions. Under this
system, the records would be subject to
court review. Failure to follow adequate
standards or process would leave the
physician or parents open to legal
sanctions, although not necessarily
charges of criminal homicide. Unless
criminal action is undertaken, the
reports would remain confidential and
not available to the public, thus
protecting the privacy of the infants and
parents.
Some physicians and others claim it is
inappropriate for a court or other
government agency to "interfere" with
the family's decision to withhold
treatment; this claim is not valid when
the consequence of the decision is the
death of the infant. There is broad
agreement that such interference is
highly desirable when the infant is
"normal," and different rules should
not be justified on the basis of a child's
handicap. An expeditious review,
applying reasonably clear standards,
would not seriously interfere with the
legitimate autonomy rights of the family
and would protect important rights of
the infants.
A slightly different version of this
article was originally published in the
July, 1984, issue of Empire State
Report, and is Copyright 1984 by
Empire State Report, and it is reprinted
with their permission.
' -
Louisville Law Examiner, October, 1985
CALI Offers Computerized Help To Students
By Tom Ransdell
So, you say that old common law just
isn't user friendly? Rules, rules, and
more rules. Do they blur together like
the colors of the spectrum? Need some
help sorting those hair-splitting legal
concepts? Meet CALI, computer
assisted legal instruction.
Equipped with expertly written
programs, the computer can be a
genuine study aid to the law student.
And, contrary to popular belief, you
don't need an engineering degree to
operate one. All you need is a few
minutes to orient yourself and an index
fi nger to operate the machine.
The programs can be used to clarify
confusing legal concepts or to polish
your conceptions in preparation for
exam taking. The format is usually a
simple one. The computer offers a
hypothetical situation and then· asks a
question. The student then answers in
either multiple choice form or a short
statement.
The computer then tells· the student
whether or not their answer was correct
and offers a model answer with the
relevant issues complete with references
to rules, treatises, and case law.
Evidence, Torts , Trial Advocacy,
Insurance Law, and Commercial
Transactions; but there aren't any
programs presently written which ¢over
the other major legal subjects. Another
problem is that, with the exception of
evidence, the programs require the use
of a study manual. This means extra
reading which may or may not be
immediately beneficial to the study of
law.
"It's not a panacea," says Professor
James Merritt. "Some students who
have worked with it have felt that their
time could have been just as well spent
actually studying."
Be that as it may, this student found
that CALI could be a useful reviewing
technique. The necessary reading of the
manuals does not occupy much time and
often the reading consists of concise,
well-defined ruJes of law that are exactly
what the student wishes to review
anyway.
Admittedly, it would have been more
difficult if Professor Merritt hadn't been
willing to help me get started , but he
showed me how to turn the computer on
and off, how to begin the program, and
the rest was as easy as using a typewriter.
The biggest flaw I found with CALI is
that the multiple choice answers may be
too easy when you compare them to a
grueling three hour law exam.
7
There are some pitfalls. For one, very
few of the programs cover an entire
subject. Instead they cover narrower
topics, such as the use of intent in torts,
or the concept of hearsay. Also, the
subjects covered are limited.
There are programs covering Civil
Procedure, Professional Responsibility,
If any student is interested in judging
the benefits of CALI for themselves they
may contact Professor Merritt in room
246.
photo by Nancy Morgan
Professor James Merrit demonstrates CALI.
UNIVERSITY OF SANTA CLARA SCHOOL OF LAW
1986 SUMMER LAW STUDY ABROAD
TOKYO, JAPAN: June 18-August 8
Emphasis on U.S.-Japanese trade. Courses in Japanese Legal
System, International Business Transactions, Comparative Law
(Intellectual Property). Internships available with Japanese law
firms and corporate law departments. Instruction primarily by
Japanese professors and practitioners. Visits to governmental
offices and company legal departments.
STRASBOURG,FRANCE
GENEVA, SWITZERLAND: June 11-August 1
Emphasis on international human rights and public international
law. Taught by recognized experts from around the world. In
cooperation with International Institute of Human Rights
(Strasbourg) and Henry Dunant Institute (Geneva). Courses on
Sources of International Law, International Organizations, Human
Rights, Immigration Law, Soviet Legal System, Humanitarian Law
and International Arbitration. Internship possibilities.
ALL COURSES ARE TAUGHT IN ENGLISH.
APPROVED BY THE AMERICAN BAR ASSOCIATION
For a detailed brochure, contact:
Institute of International & Comparative Law
University of Santa Clara School of Law
Santa Clara, California 95053
(408) 554-4162
OXFORD, ENGLAND: July 30-August 1 0
Students live in 15th century Oxford College and are taught by
Oxford professors in Oxford Tutorial Method. Course offerings in­clude
Jurisprudence, European Economic Community Law,
Legal History, Computers and the Law, International Human
Rights, and various comparative courses in areas such as Con­stitutional
Law, Real Property, Torts and Labor Law.
HONG KONG: June 9-July 30
Trade and commercial relations between Hong Kong, China,
and the rest of East Asia is the focus of the program held at the
University of Hong Kong. Practice component affords option of
either a writing tutorial or an internship with a Hong Kong law firm,
corporate law office or government agency.
SINGAPORE-ASEAN: June 9-July 30
Focus of the program to be held at the National University of
Singapore will be the legal systems and cultures as well as the
legal aspects of international investment and development in the
countries of the Association of Southeast Asian Nations (ASEAN)
(Singapore, Indonesia, Thailand, Malaysia, The Philippines,
Brunei). At our disposal are the resources of the National Univer­sity
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8 Louisville Law Examiner; October, 1985
photo by Nancy Morgan
Professor Leslie Abramson gets a unique view of his Criminal Detainers.
U.S. Supreme Court Cites
Prof. Abramson's Book
A 1979 book authored by U of L Law
Professor Leslie Abramson was recently
cited in a United States Supreme Court
opinion. Both the majority opinion, by
Justice Harry Blackmun, and the
dissent, by Justice William Brennan,
referred to Abramson's book, Criminal
Detainers.
The case, Carchman v. Nash, can be
found at 105 S. Ct. 3401 (1985).
While the book has been cited in
several decisions by other tribunals,
Professor Abramson said that this is the
first tiflle it was mentioned in a Supreme
Louisville Law Examiner
School of Law
University of Louisville
Louisville, Kentucky 40292
Court decision. The cite was also a
surprise for the professor.
"The only inkling I had was that a
research attorney on the Supreme
Court's library staff called and asked
whether a proposed statute in the book
that addresses parole and probation
detainers had been adopted in any
jurisdiction," said Abramson.
This was not the first time Abramson
was cited by the high court. An article of
his dealing with state taxation of exports
was cited in a 1975 Supreme Court
decision.
John M. Harlan Louis D. Brandeis ' . tfii . .•
~
Louisville\~.· ~,.
Law Examiner AMERICAN BAR ASSOCIATION A WARD FOR EXCELLENCE, 1984
Volume 11
Local Schools
Discuss Courts
Decision on Aid To
Private Schools
Page 1
U of L Experiments
with Admissions By
Performance
Page 1
Brandeis Brief:
Withholding
Treatment To
Terminally Ill
Infants
Page 4
Renardo Hicks
Joins Faculty
Page 6
October, 1985 Numhl'r I
Photo by Nancy Morgan