Louisville Law Examiner Serving the University of Louisville School of Law Community
 Volume 11, Number 2 Louisville, Kentucky - November, 1985 Circulation 5,400
Comparable Worth
National Issue Has Local Ramifications
by Tom Ransdell
The rights of some women employees
took a turn for the worse recently in a
court decision on what some have term­ed
"the issue of the eighties;' compara­ble
worth.
In American Federation of State,
County and Municipal Employees v.
State of Washington, 770 F.21 1401 
(Ninth Circuit, 1985), the Ninth Circuit
held that the decision of a state to base
its employee compensation on a compe­titive
market value rather than on a
theory of comparable worth did not es­tablish
a discriminatory motive so as to
demonstrate sex discrimination under
Title VII.
The court also held that compensation
based on market value did not give rise
to a disparate impact in violation of Ti­tle
VII.
The Reagan administration has been
steadfastly against comparable worth
proposals. Reagan has been quoted as
calling the issue of comparable worth
"cockamamie" and "Mickey Mouse:'
Clarence M. Pendleton, Jr., Chairman of
the U.S. Civil Rights Commission, has
been quoted as saying that comparable
worth is "probably the looniest idea
since 'Looney Tunes' came on the
screen."
What is comparable worth? Although
there ·has been a great amount of dis­agreement
in this area, comparable
worth theories generally fall into one of
two categories.
"Pure" comparable worth theorists
maintain that discrimination exists when
workers of one sex, race or ethnicity are
paid less than workers of another sex,
race or ethnicity for performing work of
comparable worth to their employer,
even though the jobs they are perform­ing
may be totally different. For instance,
secretaries and truck drivers should be
paid the same because their work is of
comparable worth to their employer.
Under the "common" theory of com­parable
worth, discrimination exists
when workers of one sex, race or ethni­city
are paid less than workers of another
sex, race or ethnicity for performing si­milar
jobs within the same general job
classification, even though the work they
Law Firm Announces
New Scholarship Program
by Joel D. Zakem
A new scholarship program for Uni­versity
of Louisville law students has
been funded by the law firm of Green­baum,
Doll & McDonald.
Named after the firm, the program
will offer full tuition for one semester for
two full-time students who rank first in
their respective classes. Students will be
eligible for the scholarship after comple­ting
two semesters at the University of
Louisville.
"This is a first-time commitment for
our firm;' said Pat Welsh, a University
of Louisville graduate who is an as­sociate
with the firm. The program will
begin in the fall of 1986.
Welsh also said that a similar program
will begin at the same time at the Uni­versity
of Kentucky Law School. Welsh
said there were several reasons for these
awards.
"The University of Louisville has sup­plied
the law firms of this community
with many fine lawyers;' he said. "This
is one way we can pay the school back:'
"Certainly, this is a challenge to the
other law firms in Louisville;' he said.
The scholarship is based solely on aca­demic
achievement. According to Welsh,
there were several reasons for this.
"The concept of excellence is what we
wanted to award;' he said, pointing out
that at the school, grades were one way
to measure quality and productivity. He
also said that the firm wanted to make
sure that the award was kept totally
objective.
The Greenbaum, Doll & McDonald
Award For Academic Excellence was an­nounced
on November I, 1985, at the
University of Louisville Town and Gown
Day. In announcing the award, Larry
Leatherman, a partner with the firm,
gave the following reasons for the award:
I) As a firm, we believe excellence is
important and should be rewarded. In­deed
that is simply the way things gen­erally
work out in our competitive en­vironment.
It seemed to us that this real
world concept was an appropriate basis
(continued on page 5)
may be performing is not identical. For
example, maids and janitors.
The job evaluation is the means by
which comparable worth can be mea­sured.
By assessing values to different
factors, each job can be rated according
to those factors. The most common fac­tors
used are: skill or training, responsi­bility,
accountability and working con­ditions.
Each job being evaluated is given
a rating for each one of these factors.
The factor ratings are then added
together to determine the worth of a par­ticular
job. All of the jobs being
evaluated are then compared based on
the ratings they have received. Jobs re­ceiving
comparable ratings are assumed
to be of comparable worth to the em­ployer
even though they are different.
Kentucky has had a comparable worth
law since 1966. K.R.S. 337.423 prohibits
an employer from paying an employee
of one sex less than she pays an employee
of the opposite sex for "comparable
work on jobs which have comparable re­quirements
relating to skill, effort and
responsibility:'
Although this statute has not been in-terpreted
by a Kentucky court, it has
been interpreted by the Legislative Re­search
Commission to mean "equal pay
for equal work:' Or, in other words, they
interpreted it as a "common" compara­ble
worth standard. 803 K.A.R. 1:025.
There is also a federal remedy. Ameri­can
Federation of State, County and
Municipal Employees v. State of Wash­ington
was based not upon a state law,
but upon Title VII, the Civil Rights Act.
In essence, the circuit court stated that
an employer may pay employees of one
sex less so long as they base the pay on
the labor market.
It is generally accepted that women
are paid less than men in the labor mar­ket.
A study by the National Academy
of Science concludes that employers
should not base compensation on the la­bor
market because this will perpetuate
past discrimination.
Employers often argue that the costs
of implementing comparable worth pro­posals
are prohibitive. A comparable
worth study done for the City of Louis­ville
estimated the increased payroll costs
(continued on page 2)
Pat Welsh Photo by Joel D. Zakem
2 louisville Law Examiner November, 1985
Louisville Law Examiner
EDITORIAL BOARD
Joel D. Zakem
Editor-in-Chief
Nancy Morgan
Photography Editor
Tom Ransdell
J. B. Phillips
Associate Editors
Jennifer C. Miller
STAFF
Benjamin Johnson
Managing Editor
Rebecca Ward
Brandeis Brief Editor
Winnie McConnell
Night Associate Editor
Bill Wilson
W. Timothy Price
Professor LAURENCE W. KNOWLES, Consultant
The louisville Law Examiner 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, University of Louisville, Louisville, Kentucky 40292. Phone: (502)
588-6398.
Letters To The Editor ...
The Professor's Book
I would like to take this opportunity
to express my thanks to you and your
Examiner staff for the excellent service
your paper gives to the local legal com­munity.
It has given me great pride to
know that my alma mater publishes a
paper of the quality of the Examiner.
Being the only University of Louisville
School of Law graduate in a three-man
firm, I have always been able to point
with pride to the Examiner as an exam­ple
of the high caliber product that
comes out of the School of Law. Believe
me, working on a daily basis with grad­uates
from the Law Schools of the Uni­versity
of Kentucky and Indiana Univer­sity,
I sincerely appreciate having this ad­ditional
ammunition for the age-old
game of one-upmanship in this area of
rival law schools.
You can imagine my pride when my
Indiana University and University of
Kentucky graduate partners both com­mented
on the article in the October,
1985 issue about Professor Leslie
Abramson's book being cited by the U.S.
Supreme Court. Both the Examiner and
Professor Abramson are to be congra­tulated;
him for his obvious ace Jmplish­ment,
and the Examiner for having
brought this accomplishment to the at­tention
of the legal community.
I would, however, like to make a per­sonal
request to you. The next time you
have an opportunity to publish a picture
of Professor Abramson reading his
book, you would save me an enormous
amount of kidding and being the object
of many jokes if you would see that the
book is being read right side up.
Thank you for your consideration in
this request.
Alan R. Miller
Class of 1985
Les Abramson was, and I'm sure still
is, an outstanding professor. However, of
his many skills I never knew he could
read a book upside down, not even his
own.
I enjoy reading each new issue of the
Examiner. Keep up the good work.
Lee J. Calarie
Class of 1977
Parents' Rights
Professor Steven R. Smith's excellent
article on parents' rights to withhold
treatment in certain cases from terminal­ly
ill infants in the October, 1985 Louis­ville
Law Examiner, shows the difficulty,
if not impossibility, of reducing some
problems to writing. They are better left
alone.
That some children are born defective
or injured, to the extent they cannot pro­vide
for themselves, is one of those
Comparable Worth
(continued from page I)
to be $1.2 million per year. This is be­cause
wages for underpaid workers must
be increased, while wages for overpaid
workers cannot be decreased.
Mayor-elect Jerry Abramson has said
that he does not support comparable
worth for city employees. He has, how­ever,
stated that he supports "pay equi­ty;'
meaning that people doing the same
job should be paid equally. Pay equity,
assuming there is no intentional discri­mination,
might be within the para­meters
set by the Ninth Circuit, but it
will not correct the situation where a
woman employee is paid less than a male
employee for doing different yet com­parable
jobs in terms of skills, effort and
responsibility.
Don Langford, chairperson of the
committee that developed the Louisville
comparable worth plan, sees compensa­tion
as being related to more than just
the comparable worth of the employee
to the employer. "Comparable worth is
not a method for determining salaries,
it is a tool to be used in determining
salaries;' said Langford. "You have to
consider the relative worth of the posi­tion
within the organization, the market
value of the position, and you also have
to consider the organization's capacity
to pay;'
He points out that some positions are
paid more than their relative worth sim-
"facts of life" all of us abhor, but none
of us can stop.
The disposition of those children is
better left to the present system which
has evolved over the years on an empiri­cal
basis. That system without doubt in­corporates
the latest medical capabilities,
as well as the wishes of the individual
parents. Some parents are willing to have
a child regardless of its limits. Other
parents do not wish to have such a bur­den
placed on them. Doctors know the
limits of medical knowledge and no
doubt use that, as well as the parents'
wishes, when known to him, in making
those terrible decisions.
Often, these decisions must be made
in a few seconds. There is no system we
could invent that would make it possi­ble
for a committee to review a matter
fast enough to make a decision on life
or death when that itself might last on­ly
two or three minutes.
It would be one thing to let a baby on­ly
a few minutes or hours old die, but
quite another thing to do that to a child
that has survived for days or weeks. The
latter smacks of Nazism to me.
Professor Smith's article shows that
some problems are better left uncofidied
and from that perspective, unsolved.
This is certainly one of them.
Donald L. White
Class of 1965
ABA-LSD Roundtable
The weekend of October 12-14, I was
fortunate enough to attend the ABA­LSD
(American Bar Association-Law
Student Division) Sixth Circuit 1985 Fall
Roundtable in Lansing, Michigan. Ac-ply
because of a scarcity in the market
of people to fill those positions. Lang­ford
also said that about twenty-five
percent of the positions that the commit­tee
found to be underpaid were deliber­ately
underpaid for one reason or
another.
The Board of Aldermen appear to be,
at least tentatively, committed to the
Louisville comparable worth study. The
committee recommended that the plan
be phased in over a period of three years
by allocating $400,000 in additional
money each year until the comparable
worth standard is met. The Board of Al­dermen
have allocated $200,000, with
the possibility that funding will be con­tinued
'Nhen the Board of Aldermen
meet in January.
The cost of paying employees accord­ing
to their worth will undoubtedly be
high. But when you consider that the Ci­ty
of Louisville spends $66 million each
year on wages and salaries, this repre­sents
an increase of about .33 percent for
each of the three years.
According to City Budget Director
Alan Bryant, the City of Louisville cur­rently
has a budget surplus of $7 million.
Only $2 million of this is required re­serve,
and the rest is actual surplus. At
the present time, it seems well within the
capabilities of the City of Louisville to
pay all employees equally for jobs re­quiring
comparable amounts of skill, ef­fort
and responsibility.
companying Doug Neagli, ABA-LSD
representative, and Ward Richards, SBA
President, Vicki Carmichael and myself
met with the governor, Joseph Casacci,
as well as the lieutenant governors and
other ABA-LSD representatives.
The agenda included an ABA-LSD
membership update and membership
workshop. We also discussed the disad­vantages
and advantages of our respec­tive
schools, offering each other sugges­tions
for improvement.
Unfortunately, most law students do
not understand or appreciate the impor­tance
of the ABA-LSD. Your legal edu­cation
is only one aspect of pursuing a
career in the practice of law. Another im­portant
element is your involvement with
the organization that helps to shape the
future of the legal profession, the Ameri­can
Bar Association.
The American Bar Association - the
national organization of the profession
- provides a wealth of opportunities to
complement your legal education
through membership in its Law Student
Division. It is the nation's largest pro­fessional
student organization, with over
40,000 members, and shares your con­cerns
about your career potential and
professional growth.
The American Bar Association is de­dicated
to providing you with access to
valuable resources and opportunities, in­cluding
literally hundreds of publica­tions
and audio-visual materials on time­ly
topics.
For more information about the Law
Student Division of tl:ie ABA, please
contact Doug Neagli at the Law School.
Jennifer Miller
Class of 1987
November, 1985
by Phyllis Leibson
Placement Director
The federal government is the largest
single employer of attorneys in the coun­try.
Of the approximately 18,000 attor­neys
in the federal work force, twen­ty-
five percent are women. In the past
two years, ten percent o(our graduates
have become employed with the federal
government.
Despite the administration's empha­sis
on tightening budgets, there are in­creasing
job opportunities for lawyers.
Congress has passed legislation provid­ing
additional funding for staffing in the
areas of environmental clean-up (Super
Fund), drug law enforcement (FDA and
Justice Department) and interna.tional
law (Export-Import Bank).
Federal government office attorneys
can gain experience in a variety of types
of legal practices - environmental law,
consumer protection, international rela­tions,
contracts, torts, tax law, etc. Seen
Louisville Law Examiner 3
Largest Single Employer
Government May Have Jobs For Graduates
as an advantage to some, new attorneys
are given as much responsibility as they
can handle early in their careers. An­other
reward is that the work often in­volves
issues of national significance and
affects millions of people.
The career ladder for government law­yers
can lead to a policy-making position
of high prestige and responsibility. On
the other hand, attorneys can use their
experience as a springboard into private
practice. The large annual hiring of the
regulatory agencies reflects the attractive
job market for government attorneys en­tering
private practice.
There are several sources for finding
out where there are positions. The
American Bar Association has publish­ed
a book entitled Now Hiring: Govern­ment
Jobs For Lawyers. The book gives
descriptions of positions of more than
a hundred government offices, including
the legislative branch, the judicial
branch, executive departments and inde­pendent
agencies.
In addition, the book provides infor­mation
on the number of attorneys em­ployed,
application procedures, entry
levels and qualifications, nature of the
work involved and promotion potential.
The serious job hunter would be wise
to obtain a copy of the Federal Execu­tive
Telephone Directory published in
Washington every two months by the
Carroll Publishing Company. This direc­tory
lists federal management personnel
by name and by function.
Announcements of current openings
are distributed to the regional Federal
Job Information Centers (FJIC). The
FJIC's compile and publish a listing of
job vacancies and registers for the area
they serve. They also provide SF-171's
and any additional application forms re­quired.
Kentuckians can get information
at the Federal Building, 100 North Main
Street, Memphis, Tennessee 38103, (901)
521-3956.
Some federal departments mail an­nouncements
to the Law School place­ment
office. These announcements are
posted on the Job Opportunity Board
and often a summary is included in Go­ing
Places.
The National and Federal Legal Em­ployment
Report is an excellent source
for finding positions available. This
monthly publication lists attorney and
law-related positions along with other
opportunities for experienced attorneys.
The Law School placement office re­ceives
this subscription the first of each
month.
The application process requires meti­culous
care and follow-up. It is essential
that the appropriate forms be obtained,
completed thoroughly, and mailed by the:
specified deadline. For a fee, the pub­lishers
of the National and Federal Le­gal
Employment Report will evaluate
your resume or SF-171.
After mailing your application, you
should get a confirmation letter. If you
do not receive any acknowledgement,
call to be sure your materials arrived and
are being considered. When you have in
mind specific locations where you want
to work, apply with the offices within
those locations.
Keep in mind that your availability to
interview at the office will enhance your
chances for consideration. Updating
your file and getting recommendations
will keep your name fresh so you are less
likely to be lost in the shuffle.
To be eligible for an attorney position
with the federal government, Bar admis­sion
in any state is required. For entry
level positions, candidates may begin as
law clerks then get upgraded as soon as
the Bar requirement is met.
Some agencies hire entry level attor­neys
through an Honors Program; third­year
students and law graduates com­pleting
judicial clerkships are eligible.
Most of the qualifications desired by the
different offices stipulate one to five
years experience in a specific area; for
example, contracts, real estate, banking,
labor, federal court practice, etc.
When looking for a federal position,
your goal will more likely be achieved if
you know what you are looking for, if
you are thorough in applying, and if you
follow up, and not give up. The place­ment
office resource library is available
to our alumni. I would be glad to pro­vide
materials and guidance in your job
search for a position in federal
government.
Internships Can Provide Experience To Students
by W. Timothy Price
The University of Louisvill e current­ly
offers three programs in which third­year
students can gain actual courtroom
experience. A student can choose be­tween
a Legal Aid Intern ship, a Crimi­nal
Justice Internship and a Judicial
Internship.
The Legal Aid program is designed to
give students experience in civil litiga­tion.
Legal Aid is a private, non-profit,
organization which represents low-in­come
clients in civil suits.
The local Legal Aid office serves a fif­teen
county area, including Jefferson
County. Clients of Legal Aid must meet
federal poverty guidelines.
According to Professor Edwin Render,
the head of the internship program, there
are four University of Louisville students
currently participating in the Legal Aid
Internship program. Eight to ten open­ings
are available. Participants must at­tend
a class once a week, and can receive
from one to four hours credit.
All academic credit from the intern­ship
programs is pass/fail.
Criminal Justice interns learn to pre­pare
cases for trial. The program is two
semesters long, and participants receive
two hours credit. Students are ~ssigned
to either the Commonwealth Attorney's
Office, the Public Defender's Office or
the Office of the County Attorney.
Terry Yenson, a third-year student, re­cently
conducted a first degree arson
trial as part of hi s internship with the
Commonwealth Attorney's Office. Yen­son
did the voir doir, made the opening
statement, did the direct examination
and made the closing argument for the
state. He also made objections and per­formed
the bench arguments.
"The best thing about this exper­ience;
' said Yenson, "is that this is the
first time that I have been able to use
what I have learned in law school in a
real situation?'
"It was much more satisfying than sit­ting
in the library writing memos;' he
said.
The Judicial Internship program al­lows
the student to observe the court­room
from the unique perspective of the
judge. Students are assigned to either the
Jefferson Circuit Court or the Kentucky
Court of Appeals, and do research for
the judge, as well as following the judges .
through their daily routines.
For more information about any of
the internship programs, people can con­tact
Professor Render at the Law School. Professor Edwin Render Photo by Nancy Morgan
4 Louisvjlle Law Examiner November, 1985
Carmichael, Thompson Win
Pirtle-Washer Competition
Vicki Carmichael, a second-year day
student, won the oral argument division
of the University of Louisville's annual
Pirtle-Washer Moot Court Competition
for 1985. She defeated Ted Jackson, a
third-year day student in the final round,
which was held on November I in the
Allen Courtroom.
The brief-writing part of the compe­tition
was won by Tyler Thompson, a
third-year day student.
This year's Pirtle-Washer topic dealt
with the admissionality of testimony
which was recalled through the use of
hypnotism. Preliminar rounds were held
at the Hall of Justice, with the semi-finals
and finals being argued at the Law
School.
Judges for the final round were Jus­tice
William M. Gant of the Kentucky
Supreme Court, Judge Anthony Wil­hoite
of the Kentucky Court of Appeals,
and Chief Judge Lawrence Higgins of
the Jefferson County Circuit Court. The
brief writing competition was judged by
a panel of faculty members.
Nancy Morgan and Jennifer Stanfield,
both third-year students, were semi­finalists
in the oral argument competi­tion.
The semi-finals were judged by
Judge John D. Miller of the Kentucky
Court of Appeals, Judge Wilhoite and
Chief Judge Higgins.
Back row, left to right: Judge Wilhoite, Judge Higgins and Justice Gant. Front:
Ted Jackson and Vicki Carmichael.
Plymale Speaks On Negotiation
by Joel D. Zakem
"Over ninety percent of all civil and
criminal cases are decided by settlement
or some means of negotiation;' accord­ing
to attorney Richard Plymale, who
spoke to a law school audience on No­vember
4 about the value of negotiation.
Plymale's speech was sponsored by
the Louisville Law Forum.
Much of the talk was based on Ply­male's
trial experiences. He is a member
of the Bar in California, Illinois and
Kentucky, and has worked in private
practice and as an Assistant U.S. Attor­ney
in Los Angeles, and as a Federal
Public Defender in Kentucky. He recent­ly
served as a Kentucky Deputy Attorney
General, where he headed the Medicaid
Fraud Unit.
Plymale is currently associated with
the firm of Brown, Todd and Heyburn
at their Lexington office.
"The legal profession requires attor­neys
to negotiate solutions to sometimes
complex situations;' said Plymale, who
thinks that the most common mistake
made in negotiating is a failure to con­sider
the other side's position.
"To be a good negotiator, you must
put yourself in the position of your op­ponent;'
he said.
While some cases do not lead to a ne­gotiated
settlement, Plymale said that
much of an attorney's work requires
good negotiation skills. "The price of
justice is too high;' he said, citing high
legal fees, the time involved, and the
chance of an adverse verdict as reasons
to work toward settlements.
Plymale advises attorneys to try to ap­peal
to all angles of a case in working
toward a negotiated settlement. In his
speech, he listed four factors of good
negotiation:
1) Creativity of the negotiator;
2) Negotiator must remember and ap­peal
to the human factor;
3) Negotiator must focus on the in­terest
of the other party, and allow him
to settle and still feel good; and
4) Negotiator must be diplomatic.
Negotiation has become an increas­ingly
popular area of study for both law
students and practicing attorneys. While
saying that there is no magic formulas
for negotiation, it is worth pursuing, be­cause
it might be the best method to
serve the interest of your client.
Tyler Thompson Photos by Nancy Morgan
Moot Court Board Runs
Competitions For School
by Jennifer C. Miller
The University of Louisville Moot
Court Board has become an important
part of the Law School, yet few students
are aware of what they do.
They are responsible for the Pirtle
Washer Competition in the fall and the
Mock Trial Competitions in the spring;
they select the topics to be used for the
first-year students' Moot Court briefs,
and they assist the National Moot Court
Team.
Together with Professor James Ragan,
the Board consists of Louis Waterman,
president; John Osborne, vice president
day; David Nuttgrass, vice president
night; Vicki Carmichael, secretary; John
Gray, treasurer; and Jeff Newton, Chuck
Adams and Tim Lavender,
members-at-large.
As previously stated, the Moot Court
Board is in charge of all courtroom com­petitions.
Pirtle Washer is an "in­tra-
school" competition for second- and
third-year law students, consisting of
both oral arguments and written briefs.
First place in the oral competition re­ceives
an "in-state" full-year scholar­ship;
second place is awarded an "in­state"
half-year scholarship.
First place in the written brief com­petition
receives an "in-state" half-year
scholarship.
The Regional Mock Trial Competi­tion,
to be held in the spring, will con-sist
of teams chosen from students who
are enrolled or have completed evidence
and Courtroom Law and Technique.
University of Louisville law students will
be competing against other schools in
the southern states region; the ~lnners
will advance to the national competition.
In addition to the Regional Mock
Trial Competition, the University of
Louisville will be holding its first annual
intra-school Mock Trial Competition,
which will be open to any student who
has completed or is taking evidence.
Members of the Moot Court Board
are elected in February by the student
body. Any student can run for an office.
According to Waterman, ''The president
is the administrator of all the programs:'
The only requirement is that the student
be well organized and very dedicated.
Waterman stated that the job was quite
time-consuming, but very rewarding. He
has already met numerous attorneys, as
well as Kentucky Court of Appeals and
Supreme Court Justices.
There are other benefits available. The
president is awarded an "in-state" full­year
scholarship. In addition, beginning
in the upcoming year, an additional half­year
"in-state" scholarship will be .avail­able
to the Moot Court Board to distri­bute
as they choose.
Any student interested in or seeking
more information about the Moot Court
Board should contact one of the officers.
November, 1985 Louisville Law Examiner 5
870Jo Of U Of L's Candidates Pass July Bar Exam
by J. B. Phillips
Every law student probably has or
should have a more than passing interest
in the performance of his or her school's
graduates on the state Bar Exam.
This past October, the results of the
July exam were revealed - some 87o/o
of University of Louisville candidates
had passed.
Dean Barbara Lewis was satisfied with
the July results, though not entirely
pleased since, as she put it, ''I want every
one of our students to pass the Bar:'
Dean Lewis went on to comment that
it is almost incredible how much signi­ficance
is attached to the Bar passage
rate in this state. This fact is all the more
incredible when one considers that Bar
passage rate is not always indicative of
the quality of a legal education.
The classic example hails from Cali­fornia.
The students of McGeorge
School of Law nearly always enjoy a
higher Bar passage rate than do the stu­dents
of Stanford. It cannot be serious­ly
contended, however, that McGeorge
is necessarily a better law school than
Stanford. Simple mathematics will reveal
that if a state has more than one law
school, some schools will have higher
passage rates than others.
Last year, the Law School was visited
by the University of Louisville Board of
Overseers. This group is an advisory
body to the University composed of dis­tinguished
members of the community.
Routinely, they study various academic
units, file reports and make recommen­dations
to the President of the
University.
A subcommittee of this body, com­posed
mostly of lawyers, particularly
studied the poor Bar Exam results of
1983. This body found two significant
correlations. The most significant by far
Professor Volz Arbitrates
Football League Disputes
by Bill Wilson
University of Louisville Professor
Marlin Volz is an arbitrator on a nation­al
cale. A member of the National Aca­demy
of Arbitrators (NAA) and current­ly
their regional chairman, Volz has also
arbitrated in areas ranging from the shoe
and glass industries to a local police de­partment.
One of his most interesting ar­bitration
activity, though, involves the
NFL.
Professor Volz was one of the first to
become involved in the arbitration pro­gram
between the NFL Players' Associa­tion
and the NFL Management Coun­cil
(which represents the twenty-eight
clubs). "I don't know exactly why I got
started, except that I've been in arbitra­tion
since 1953. I've had a lot of opi­nions
published and so I was reasonably
well known at the time:'
NFL arbitration is divided into two
areas. One interprets the contract in
non-injury situations. The other is con­cerned
with grievances involving injur­ies.
Volz is involved in the latter realm.
A player with the NFL has two con­tracts:
(1) The Collective Bargaining
Agreement between the Management
Council and The Players' Association,
which applies to all clubs and all players;
and (2) an NFL Player Contract, which
the individual player signs with his par-ticular
club. '
Approximately 100 individuals begin
pre-season in each training camp. These
candidates will be reduced to a maxi­mum
squad of forty-five players. The
contracts of injured players are often ter­minated
before recovering from an in­jury
sustained during practice.
Paragraph Nine of the NFL Player
Contract provides for benefits to the in­jured
party when this occurs. Volz stated
that, ''This allows the player to draw the
full monetary benefits he would have re­ceived
if he hadn't been released. How­ever,
in order to collect these benefits, the
case must either be settled or an arbitra­tor
must decide in his favor:'
Volz added that the injury benefit is
in addition to the Workmen's Compen­sation
which injured players receive.
After the filling of the grievance, the
first step is usually for the player to be
examined by a neutral physician, a con~
cept which is unique to football. "The
Players' Association and the Manage­ment
Council jointly agreed on a list of
neutral physicians. They have two in
every city where there is an NFL team:'
The findings of the NFL are binding
on everyone, including the arbitrator.
However, whether the injury prevents the
player from playing football and the
length of the injury period is a decision
which remains with the arbitrator.
The grievance hearing normally lasts
one or two days and involves testimony
by doctors, trainers and the player. Volz
states that occasionally a head coach will
testify.
After the artibrator hears the case he
delivers a written opinion rendering his
decision. Volz takes into account many
factors before a decision. In reference to
one case, he noted, ''I subtracted one
week (from the player's benefit period)
because he didn't cooperate in his reha­bilitation
program:'
Professor Volz hears an average of one
case a month for the NFL. In addition,
he has recently been appointed the chief
arbitrator for the USFL.
Despite his extensive involvement with
professional football, he watches very lit­tle
of the sport. "I watch about five
minutes of each game ... however, one of
the advantages (of being an NFL arbi­trator)
are free tickets to the Super Bowl
each year:'
was the number of Bar courses taken by
a student in which that student earned
a grade of "C" or better. The second,
though less significant, was tound to be
class rank.
Apparently, the majority of the peo­ple
who fail are in the bottom third of
their class. However, the Dean rushed to
assure this group that, "It is the mission
of the Law School that any student who
graduates be qualified to pass the Bar
Exam - that is our endeavor:' Essen­tially,
even the person at the very bottom
of the class should be well qualified and
prepared to pass the Bar Exam and prac­tice
law.
Interestingly enough, class size does
not seem to bear any correlation to pas­sage
rate.
With this in mind, one may be well ad­vised
to take as many Bar courses as pos­sible.
A law student's career depends on
it; to do otherwise would be an unwise
decision, according to Dean Lewis.
Another possible factor is clerking, al­though
this is almost entirely dependent
upon the individual. For some, it can be
a helpful and rewarding addition to a le­gal
education. For others, it might be a
necessity. For still others, it might not be
the right choice. Although the individual
must make the decision, one should not
yield to the temptation of allowing work
to eclipse the importance of classwork,
according to the Dean.
At present, students are required to
take a minimum of thirty hours of Bar
courses. However, even in the light of the
correlation between Bar courses taken
and Bar passage, the Dean is in favor of
allowirig the students a fair amount of
discretion in scheduling- "Every per­son
in this building is an adult;' andre­moving
all discretion from the students
would be "inappropriate:'
Professor Marlin Volz Photo by Nancy Morgan
New Scholarship Announced
(continued from page 1)
for rewarding excellence in the Law
School competition.
2) But more important than our views
were the views of Dean Lewis and her fa­culty.
When we started our discussions
some time ago regarding this concept, we
made it immediately clear that our firm
wanted to participate in a program that
blended 100 percent with Law School
policies and goals. This scholarship pro­gram
is the product of those discussions
and I personally believe is a fine exam­ple
of private sector/public education
partnership activity which we all know
in these times is absolutely necessary to
improve the quality of our educational
systems.
3) Finally, this is the right time for this
program. The University of Louisville is
on a roll. For the first time in the his­tory
of this university the public at large
is recognizing that the University of
Louisville is a vital resource for this com­munity,
and indeed, the Commonwealth
of Kentucky. The Quest for Excellence
drive has done remarkably well. Yet, ex­cept
for one large gift by the Gheens
Foundation, with which I am associated,
there has been very little, to date, private
funding earmarked for the Law School.
In our Louisville office, the University
of Louisville Law School graduates from
the Law School by far out-number any
other single institution represented. That
condition prevails throughout this com­munity.
It's time to recognize that the
Law Schooi is a vital resource to our pro­fession
and to support it in a tangible
manner in its continuing efforts to carry
out its mission of providing top-flight
law graduates to serve our needs in the
years to come.
Morgan & Yenson Win
Racquetball Tourney
Third-year law students Nancy Mor­gan
and Terry Yenson repeated as inter­mural
champions by winning the 1985
University of Louisville mixed doubles
racquetball tournament.
Morgan and Yenson first won the
tournament last year.
6 Louisville Law Examiner November, 1985
Sex Discrimination In Legal Profession Is Discussed
by Winnie McConnell
Since an increased number of women
are being admitted into law schools each
year, it would appear that women are be­ing
given an equal opportunity when
they enter into the legal profession. But
it is apparent to some that traces of dis­crimination
still remain.
According to Donna T. Mortonstout,
a minister at the University of Louisville
Ecumenical Center and an attorney, the
total number of women who now serve
as judges, prosecutors and defense attor­neys
is evidence that sex discrimination
is nearly eliminated in that area.
Though she does not believe such dis­criminatory
behavior exists in the law to­day
as it once did, Mortonstout said
women who are now entering the pro­fession
may experience a taste of discri­mination
at times.
"In an interview situation, a woman
may be asked an inappropriate question
from a prospective employer;' she said.
"If this occurs, I think a woman should
turn the question around .and ask it to
the employer. Then he will see how ri-diculous
the question really is?'
According to Mortonstout, women
need to take themselves seriously and to
demand this from others in order to be
accepted on an equal basis in any career.
Ann Oldfather, a trial attorney, agreed
with Mortonstout that any discrimina­tion
against women as attorneys has al­most
completely been diminished.
"I think it is looking up;' she said.
"In the seventies, there was a reluctancy
to hire women, but now the opportuni­ties
are better?'
However, women as attorneys may still
experience discriminatory treatment in
subtle ways, according to several other
attorneys.
"I think there remains a tendency to­day
for women and minorities who are
attorneys to be considered as not serious
or not qualified;' said Denise Clayton,
an attorney and director of Student Le­gal
Services at the University of
Louisville.
She said women must be made aware
that prejudicial attitudes are exhibited
among some attorneys and judges. In
addition, Clayton said women attorneys
should not be misled into believing they
are not hired by a law firm because they
are not the most qualified for the job.
In reality, she believes, some job inter­views
are conducted as a mere formality
to exclude women as candidates for po­tential
positions.
"When you have not been discrimi­nated
against, it is difficult for you to
understand how it diminishes your
self-esteem;• said Ms. Clayton. "No one
gains by negative experiences, but only
by positive ones?'
Laura Douglas, an attorney with Legal
Aid Services, who has worked in corpor­ate
law, also finds that women are treat­ed
differently as attorneys than their
male counterparts.
"In my own development as a lawyer,
I have not been discriminated against
based on my sex;' she said. However,
Douglas has noted that discrimination
against female attorneys is reflected in
salary levels when compared with those
of male attorneys.
Cathy Hinko, who is also an attorney
at Legal Aid, agreed that many ''solid,
good and bright" qualified women have
to accept lower paid positions because
they cannot find employment in the
more prestigious legal areas. Only a few
outstanding women appear to benefit
and are hired in high paying jobs, she
said.
Hinko said despite the apparent dis­crimination
that still exists, it is not im­possible
for a female attorney to find
employment. In addition, she said
women do not have to be targets of dis­crimination
in the courtroom if they
conduct themselves as professionals.
"I act in a very formal manner in the
courtroom and that is my defense
mechanism;• she said. "I go into a
courtroom very prepared and I know I
am on an equal footing with my male
colleagues:'
Douglas believes it is up to the indivi­dual
woman to educate colleagues about
her abilities as an attorney. "Today's
woman attorney must set forth an exam­ple
as being reliable and qualified, and
must carry the burden of smoothing out
the waters;' she said.
New President Westerfield Sets LBA Priorities
Rebecca Westerfield Photo by Bill Wilson
by Bill Wilson
On January 1, 1986, Rebecca Wester­field
will assume the duties and respon­sibilities
of the presidency of the Louis­ville
Bar Association (LBA). She will be
officially sworn in at the LBA annual
dinner on February 21.
Westerfield was born in Newport,
Rhode Island, and received both her
B.A. and J.D. degrees from the Univer­sity
of Kentucky. While attending the
University of Kentucky Law School, she
was a member of the Kentucky Law
Journal and of the National Moot Court
Team. She is currently with the firm of
Goldberg and Simpson.
Westerfield has a long list of goals
which she hopes to accomplish during
her one-year term. "The first thing that
any president of an organization of this
sort has to say they'll do is make sure the
organization will flourish as it has in the
immediate past:' She plans to increase
membership, targeting three groups in
particular. These are women, minorities
and young lawyers.
"I think the Association has a lot of
support-type services to offer these
groups and I'd like to see more of them
involved;' she said.
Another top priority is to involve the
LBA in more community service activi-ties.
"The Association has become
strong as an organization and now is the
time for the LBA to take the leadership
role in the community that it should
have;• she said.
She hopes the LBA Community Re­lations
Committee will become more ag­gressive,
providing services such as a vol­untary
clearinghouse which would link
lawyers who express an interest in work­ing
for a particular cause with the ap­propriate
agency.
Another goal is to revitalize the com­mittee
structure of the organization and
to encourage the committees to become
more active in issues before the General
Assembly. Westerfield thinks the com­mittee's
role should not be to take a
stand on a particular issue, but to pro­vide
information and knowledge.
Locally, she is interested in establish­ing
at least one task force to examine al­ternatives
to court. "The legal system
has become so expensive for a person to
take advantage of that I think a lot of
grievances are not being properly re­solved;'
she said.
These task forces would study various
proposals and submit recommendations
to the Kentucky Supreme Court or ap­propriate
agencies.
A fifth goal concerns working with
the Louisville Bar Foundation to prepare
an educational program in conjunction
with the bicentennial of the United
States Constitution. "l think there is
gross constitutional illiteracy. We should
take every advantage of the celebration
to educate people as to what it. means;'
she said.
In addition, Westerfield feels that Le­gal
Aid should be strengthened and ex­panded.
She is willing to commit the
LBA to a role in such an improvement.
However, she thinks that the LBA could
not fill the role provided by Legal Aid.
"I think its practically unrealistic for
the Reagan Administration to believe
that the needs of indigents will be cared
for by voluntary lawyers. That's ludi­crous.
It's unfair to the lawyers and it's
unfair to the indigent class. I don't know
of any other profession which is asked
to provide free professional services;' ac­cording
to Westerfield.
The concerns expressed over an over­supply
of attorneys are unwarranted in
Westerfield's view. Quoting her mentor,
Judge Henry Pennington, she feels,
"You can never have too many good law­yers:'
Westerfield thinks the process of de­veloping
into a good lawyer requires a
balance during law school between work
and academic study. "The academic side
should not be short-changed in any way.
I think it's essential that one learns to
think like a lawyer?' She stated that
working adds a different dimension to
what is being learned in class.
"I worked at least two jobs the entire
time I was in law school. I learned far
more from those experiences than in any
class I had in law school?' She quickly
cautioned against working too much,
however. "Everything has to be done in
moderation?'
Westerfield also encourages extra-cur­ricular
activities. "I feel that extra-cur­ricular
activities are important to one's
education?' Her personal favorite was
the National Moot Court Team.
''As a practical matter, the experience
I had on the National Moot Court Team
was more valuable than the law journal
experience. The law journal was impor­tant,
but I don't think it was essential;'
she said.
November, 1985 Louisville Law Examiner 7
Budget Cuts May Cripple Student Legal Service
Denise M. Clayton
by Jennifer C. Miller
For the past seven years, University of
Louisville students have had the oppor­tunity
to receive free legal advice. Today,
however, the continuation of this service
is uncertain.
In October, 1978, the Student Legal
Services Program was established, re­ceiving
its funding from the Student
Government Association (SGA). Since
that time, the funding has become irre­gular
and has resulted in several budget
cuts.
Denise M. Clayton, a graduate from
the University of Louisville School of
Law, is the director of the service. Ac-
Size Of First-Year Class Does
Not Worry Administration
by J. B. Phillips
Many of the upperclasspersons at th~
Law School may have noticed that the
entering freshman class is somewhat lar­ger
than usual, numbering some 227
students.
In an interview provided by Dean Bar­bara
Lewis, the Dean candidly admitted
that, "It is true that we had a larger class
than we anticipated, and it is also true
that the class is larger than we wanted:'
Dean Lewis was quick to add, how­ever,
that she did not want to create a lot
of anxiety in the first-year class, nor did
she want to foster the fear that attrition
would take its toll in an unusual man­ner.
That, she said, is "not an accurate
fear:' Rather, she wanted to dispel! any
anxiety of this nature that any of the
freshmen might have.
The Admissions Committee follows a
"rolling admissions" policy. Apparent­ly,
what happened this year was that the
committee, in the light of past exper­ience,
simply had too many offers out­standing
at the same time. This, coup­led
with the fact that the school had a
higher acceptance rate than in the past,
resulted in a larger entering class than
anticipated.
The Dean stated that, "We will do the
very best we can to teach each and every­one
who is in class - it is our ambition
for every person enrolled in the Law
School to graduate and pass the Bar,
that's our job:' Theoretically, the admis­sions
process itself should eliminate
those students who should not be in law
school in the first place.
As for any negative effects attributa­ble
to a larger class, the only factor of
any consequence is a relatively intangi­ble
one. Generally speaking, the aca­demic
experience is better in a smaller
class. In large classes, there is obviously
less opportunity for one-on-one interac­tion
with the faculty.
However, many law schools have sub­stantially
larger classes than the Univer­sity
of Louisville, even though the class-es
are not as small as some might pre­fer.
Dean Lewis intimated that faculty
members try to maintain academic rigor,
and make classes sufficiently demand­ing
to challenge a student, in a calculated
effort to make the students the best that
they can be.
Not surprisingly, first-year instructors
have encountered few problems. Among
them, Professor William F. Dolson
frankly stated that, ''I try to call on
everybody:' He went on to say that he
found no problems in teaching any of his
classes.
Ideally, the Admissions Committee
tries to fill 180 seats in an entering class,
divided into three sections of sixty each.
In keeping with the rolling admissions
policy, a number of offers are extended,
and a deadline is given. Candidates then
respond to the offers, indicating to the
committee how many seats are left, en­abling
the committee to extend more
offers.
Many factors figure into the commit­tee's
selection. Primarily, G.P.A. and
L.S.A.T. scores are reviewed, although
these are not the sole criteria consider­ed.
Other factors that account for class
size are the fact that the records for in­dividual
students are completed at dif­ferent
times. Also, some individuals sim­ply
don't show up, for whatever reason.
The Dean said that the Admissions
Committee will monitor the process
more closely, so that they will be sure
that the same thing doesn't happen
again.
Moreover, in compliance with the
mandate of the Council For Higher Edu­cation,
the Law School will be reducing
the number of residents accepted in law
school. This process will be phased in
over a three-year period. However, this
decision will not affect anyone current­ly
enrolled. Indeed, the Dean strongly
maintained that the administration
would not do anything that would have
a negative effect on any student current­ly
enrolled; such action would be "in­appropriate:'
cording to Clayton, as a result of the
budget cuts, she has undergone varied
changes in service and staffing.
Until this year, Clayton's office hand­led
some litigation services. At the pre­sent
time, the office only does
client counseling and runs legal educa­tional
seminars.
Clayton added that she would like to
establish a clinical work program with
the Law School, but such a program is
not possible at the present time because
of the current financial status of the
program.
"I'm unclear on their basis for fund­ing:'
said Clayton. "There's no stan­dard,
so I don't know where to (make
improvements), if at all. Obviously, it's
a matter of personal priorities rather
than material I bring them:'
"As far as the community at large,
students are not viewed as indigents.
Therefore, there is sometimes a feeling
in the legal community that students
don't need free legal services. A student
would pay anywhere from $50 an hour
or higher for even a consultation in any
legal office in the community:'
In regard to the effectiveness of the
Student Legal Services in relationship to
available community services, Clayton's
1985 Spring Report showed that she
handled as many clients as comparable
professional clinics, and did this at no
cost to the student. She stated that the
students primarily are seeking informa­tion
concerning areas of domestic rela­tions,
i.e. divorce, as well as traffic acci-dents
and insurance coverage.
According to Wade Lewis, SGA Fi­nance
Committee Chairman, Ms. Clay­ton's
position should either be financial­ly
affirmed or be dissolved and replaced
with an alternative method of student le­gal
aid. He is not convinced that Clay­ton's
office is necessary.
"She works hard and the service
should be provided, but Denise is under­paid,
yet financing Student Legal Ser­vices
takes a large chunk out of the SGA
budget:' said Lewis.
Clayton has expressed feelings of loy­::
tlty to Student Affairs, the University
and the students. Nevertheless, because
of the financial instability of her job, she
has considered leaving.
"Of course, I have to think of my
career. Basically, I like working with stu­dents
and being in a campus environ­ment.
It's a personally satisfying job:'
said Clayton.
She hopes, however, that student
government will realize the program it­self
deserves better, deserves stability.
She feels that SGA needs to determine
by what standards they are judging the
program before they do anything.
No decision as to the future of the
program has been made. Currently, the
office is open twenty hours a week:
Monday and Tuesday, 8 a.m.-noon; Wed­nesday,
1:15-4:30 p.m.; Thursday,
1:30-4:30; and Friday, 8-9:30 a.m. and 11
a.m.-1 p.m. (at the Health Science
office).
Paper Chase At U Of L
Photo by Rebecca Ward
Professor Robert Stenger makes a point during the Law School's "Paper Chase"
festivities. The event, part of University of Louisville's "Town & Gown" Week,
allowed relatives and friends of first-year students to attend a special Law School
class in order to learn what law school is like. This year marked the third annual
"Paper Chase."
J
-!
8 Louisville Law Examiner November, 1985
State Plan Will Cut Enrollment At Law Schools
by Joel D. Zakem
A plan approved by the Kentucky
Council on Higher Education will allow
the state to retain all three of its law
schools, but will cause a decrease in in­state
enrollment at the University of
Louisville School of Law.
The plan is scheduled to be phased in
for the entering class of 1989. It will limit
in-state enrollment at the University of
Louisville to 400 students. Currently, 476
state residents attend the University of
Louisville School of Law each year.
The University of Kentucky School of
Law will be limited to 410 in-state stu­dents
(currently, the University of Ken­tucky
has 399) and Chase College of
Law will be limited to 250 such students
(currently, Chase has 300).
While the number of in-state slots will
be cut, the plan also does away with the
current ten percent limitation on out-of­state
residents. There will be no limit to
the amount of out-of-state students each
school can have, but tuition for these
students will be raised in order for it to
more accurately reflect the cost of a stu­dent's
legal education. According to
Dean Barbara Lewis of the University of
Louisville School of Law, the exact figure
for non-resident tuition has yet to be set.
Dean Lewis also said that the plan
calls for the state to set minimum quali­fications
for entering students, which
will probably be the same for all schools.
"I'm satisfied with the program;• said
Dean Lewis. "Overall, it is a good plan:•
The Dean also said that such a plan
is needed because of the decline in law
school applications nationally. "It's rea­sonable
to anticipate a decrease in en­rollment;'
she said.
There is also no reason to expect this
new plan to affect the University of
Louisville's night school, according to
Dean Lewis. She said that the University
is pledged to operate both a day and
night law school.
One thing allowed by the new program
is the recruitment on more out-of-state
residents. In the past, because of the ten
percent limit, the University of Louisville
has not been recruiting non-residents.
Dean Lewis said that the Law School will
look to recruit students with high quali­fications
from other states. Such recruit­ment,
however, might be hard.
"It's difficult to predict how the tui­tion
increase will affect recruitment;'
said Dean Lewis. She said sht> hoped the
new plan would allow more Southern In­diana
residents to attend the University
of Louisville.
The Dean also pointed out that the
Louisville Law Examiner
School of Law
University of Louisville
Louisville, Kentucky 40292
new rule should have no effect on cur­rent
students. She emphasized that the
plan does not begin until 1989. "I don't
want anyone to think that we have to
flunk anybody out to fit within the
limit;' she said.
John M. Harlan Louis D. BrandriS '
'~~ . .
~ ...... .-.iiliiVJ Louisville\
Law Examiner
Volume II
Comparable
Worth
Discussed
Page 1
New
Scholarship
Announced
Page 1
Pirtle-Washer
Results
Page 4
First-Year
Students
Vs.
Second-Year
Students
In Football
Game In The
Oval ...,..
November, I985 Number 2
Photo by Nancy Morgan