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Louisville Law Examiner Serving the University of Louisville School of Law Community Volume 11, Number 4 Louisville, Kentucky - April, 1986 Circulation 5,400 High Court To Decide Kentucky Peremptory Challenge Case . by Paula Douglass representative cross section of the com- Heightened publicity, defense counsel indignation, and a magnitude of inconsistency in the lower courts prompted the U.S. Supreme Court to reconsider the constitutionality of the use of peremptory challenges to exclude blacks and other minorities. Previously, in the case of Swain v. Alabama, 380 U.S. 202 (1965), the Court ruled that systematic exclusion of black jurors violates the Fourteenth Amendment Equal Protection Clause. To establish the constitutional violation, however, such exclusion must be shown in a pattern of trials rather than in a single trial, a burden which is virtually insurmountable. The case of Batson v. Commonwealth of Kentucky, argued before the U.S. Supreme Court last December, once again brings this issue to the forefront. James Kirkland Batson, a black man, was convicted by an all-white jury in February, 1984 in Jefferson Circuit Court of second degree burglary and receiving stolen property valued at more than $100.00. He was sentenced to twenty years in prison for both counts, after second-degree persistent felony offender status was established. The Kentucky Supreme Court affirmed the conviction. During jury selection at Batson's trial, prosecutor Joe Gutmann exercised peremptory challenges to exclude all four black jurors on the panel. Public defender Doug Dowell objected to the swearing in of an all-white jury because the exclusion-of blacks denied Batson's Sixth Amendment right to a fair and impartial jury drawn from a munity. The motion was denied. Before the U.S. Supreme Court, as' sistant Jefferson County public defender J. David Neihaus asserts that a Sixth Amendment analysis rather than the Fourteenth Amendment analysis established in Swain should be employed when systematic exclusion of black jurors is at issue. Neihaus argues that the fair cross section requirement of the Sixth Amendment set forth in Taylor v Louisiana, 419 U.S. 522 (1975), which applies to jury pools, should be extended to the actual jury selection process to ensure impartiality. Assistant Kentucky Attorney General Rickie L. Pearson contends that ex-' tension of the cross section requirement to petit juries has no constitutional basis and that the only way to ensure impartiality is to allow jurors to be selected without explanation or inquiry. Professor Albert T. Quick of the U niversity of Louisville School of Law believes that "the Court will not extend Taylor because the majority of Justices view this as a Fourteenth Amendment issue and are not willing to extend the Sixth Amendment's fair cross section requirement of jury pool to the jury selected." As such, the Swain decision which requires systematic exclusion in a pattern of cases to establish an Equal Protection violation will be upheld. A pattern of exclusion was not established in this case and thus there was no constitutional violation. Quick adds that "the Sixth Amendment's guarantee of an impartial jury is I ~ -~ -~ THE GREAT DEBATE Professors Renardo L. Hicks and Albert T. Quick (standing) debate the exclusionary rule at a debate sponsored by the Law Forum on February 24. Hicks spoke in favor of the rule, saying it was needed to protect constitutional rights, while Quick said the rule harms individual rights. Photo by Nancy Morgan a right of the accused. Thus, an individual juror has not had his constitutional right under the Sixth Amendment infringed by a peremptory challenge, and therefore, no constitutional remedy under the Sixth Amendment need be provided by striking him." Nevertheless, Batson contends that use of peremptory challenges to remove blacks and other minorities results in a loss of faith in the integrity of jury trials, particularly in the minority community. Quick believes that "if peremptory challenges are used to exclude an identifiable group, you will have a reaction in the community that does reflect a loss of confidence in the criminal justice system, but that is not necessarily a constitutional violation. You could still have an impartial jury, but one that does have a negative societal impact." Professor Les Abramson agrees that exercise of peremptory challenges against an identifiable group may still result in an impartial jury. Batson also asserts that wholesale exclusion of a particular group from jury service allows the prejudices of the majority to dominate the group. The State argues that impartiality is not assured by balancing biases and that the role of the peremptory challenge is to remove the extremes of partiality on both sides without a stated reason, without inquiry, and without being subject to the state's control. In addition, there is a legitimate question whether black jurors are more partial to members of their own race. Abramson notes that "some say black jurors might be more punitive against their own race, although I don't know if anyone has empirically tried to prove this." As an analogy, Abramson offers that his experience has been that "students on the honor council tend to be more punitive than faculty." The remedy proposed in Batson is that set forth in Wheeler v California 148 Cal. Rptr. 890, 583 P. 2d. 749 (Cal. 1978), and adopted with variations by several states and the Federal Courts of Appeals in the Second, Fifth, and Sixth Circuits. However, the majority of state and federal jurisdictions which have considered the issue have reaffirmed Swain. The Wheeler rule provides that a prosecutor's exercise of a disproportionate number of peremptory challenges to exclude members of an identifiable group shifts the burden to the prosecutor to explain his reasons for so exercising his challenges. Under such an approach, Abramson believes that "the effectiveness of the peremptory challenge is curtailed if not gutted." Quick also sees implementation problems such as difficulty in determining the prosecutor's motives. Notwithstanding the implementation problems, Quick believes that Batson presents an issue for which "the states, pursuant to their own constitutions and procedures should fashion a remedy." A decision is expected in late Spring. Quick predicts the Supreme Court will rule either seven to two or eight to one in favor of the Commonwealth of Kentucky, with Justice Marshall joined either by Justice Brennan or Justice Stevens in dissenting. Journal Of Family Law Hosts National Conference by Tom Ransdell Chief Justice Robert F. Stephens of the Kentucky State Supreme Court, told delegates to the Thirty-Second Annual National Convention of Law Reviews at the Brown Hotel that, "Being on a law journal helps create and sustain an interest in changing the law. In addition, it gives an overview of the law and helps develop a philosophy of the law.'' Justice Stephens spoke at a panel discussion on the role and function of law reviews. He felt that other benefits were that journal participation provides good practical experience and that it develops mental toughness. "It teaches you to go the extra mile." Justice Stephens concentrated on the role of law reviews from a judicial viewpoint. He said that appellate judges regularly read law journals and that they are a valuable resource. "I especially like articles that discuss both sides of an issue and then choose between them," he said. Dean Barbara Lewis was also a member of the panel discussion. She spoke on the role of law reviews from an educator's point of view. "I would like to see a greater emphasis 'on student publishing," she said. "Every article doesn't have to be perfect." Dean Lewis pointed out that student (continued on page 6) --- •• 2 Louisville Law Examiner April, 1986 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 Paula Douglass Jennifer C. Miller David Fuller Bill Wilson Karl Truman Jayne Moore Waldrop 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 Students, Staff, and Faculty: My family and I thank you all for the strong support you have sho~n us these past months. Your generosity, kindness, and patience have helped us cope with my daughter's illness. As of this point, my daughter has recovered from surgery and is doing quite well overall. She should be returning home in the near future. Professor Richard Nowka To The Editor: Our present legal system is under serious attack by the insurance industry, the organized medical profession and by the manufacturing associations. This is due to larger and larger damage awards and to the sharp increase in the number of suits filed over the past decade. Our own Senator Mitch McConnell has introduced S.2038, to limit the amount of a lawyer's contingent fee, and S.2046, to limit the amount of damages payable in tort claim cases. Both these approach the problem much like the ancient's killing the messenger who bore bad news, or the mother who threw the baby out with the wash! Here is their logic: doctors are being sued for malpractice and large awards granted. To stop this, lets take away the lawyer's fee, so there won't be as many suits. Instead, whv don't thev work to reduce medical ne~-li-gence so. there will be no need for ' suits? A new publication, Products Liability Commentan· and Cases, published by Callaghan & Company, included in an article bv Mr. E. G. Jefferson, Chairman, E." I. duPont de Nemours and Company. He cited an example of what he sees as the problem, a case involving the New York Transit Authority, (NYT A hereafter) paying $650,000 to settle a claim by a person injured while attempting suicide by throwing himself ndera-subwaytrain-:- On its face, this seems silly and Mr. Jefferson leaves it at that. But do you think the NYT A management and lawyers "checked their brains at the door" when they settled this claim? Perhaps others had done this before and perhaps NYT A had erected a fence to block access, and perhaps the fence was not properly maintained. Thus, all the elements of liability could be present in this case and it might therefore be prudent to settle rather than risk a large verdict. But we are not given the facts. This is the kind of hysteria and hyperbole used by those fighting the lawyers. Senator McConnell ought to keep in mind that there are more plaintiffs than there are defendants. My own experience in Jefferson County indicates the number of suits has leveled off or slightly declined. I remember that there were about 12,000 suits filed in circuit court in 1984, and about 10,000 in 1985. I do not know how many were divorces, adoptions, appeals from district court, so it is hard to say how many were tort claims in either year. If this number is typical of the country, though, then the peak seems to have been reached. Finally, who is going to arrogate unto himself the right and power to tell others when their suit is "unfounded," or "excessive" or "unjustified"? I say we ought to be studying ways to make the judicial system more available, not less available, to the ordinary citizen. It is indeed his court of last resort. Donald L. White Class of 1965 Night And Day Higgins Appreciates Both Practice And Teaching by Winnie McConnell There are attorneys who devote their time solely to the practice of law. There are also those attorneys who not only practice the law, but also teach the law. James R. Higgins Jr. is one such local attorney who, throughout the past several years, has taught in the University of Louisville Law School's evening division a variety of courses, such as UCC I, II and III; Corporations; and Consumer Transactions. Currently, he is teaching patent law on Wednesday and Thursday evenings. Higgins, who graduated first in the evening division class at the University of Louisville in December, 1978, said he owes a great deal to the law school. "If it were not for the law school's night division and for the many professors who dedicated their efforts to the night division, I would not have a law degree today," he said. For this reason, Higgins has returned to the University of Louisville to "help give back that which was given to me." In the patent law course he now teaches, Higgins said his strategy is to emphasize the reasoning behind the courts' decisions. He wants his students to understand the competing policies occurring in patent law as opposed to reading a conglomerate of cases. "I try to bring practical inferences ine- the-elassroom to- help 'Hustrat-e-thepoint of the case in real life situations," he said. "I want to intertwine case law with the constitutional philosophy of patient law - to promote the progress of science and the useful arts.'' Patent law is nothing new to Higgins, who is a licensed patent attorney with the law firm Middleton and Reutlinger. In fact, Higgins took and passed the patent bar examination while still a law student at the University of Louisville. Currently, his practice is divided between commercial law, concentrating on the Uniform Commercial Code, and patent law. "Patent law is a growing part of my practice," said Higgins. "I am striving to eliminate the view that here in Louisville, the practice of patent law is a cure for which there is no known dis-ease." _ A native of Berea, Ohio, Higgins graduated from Alfred University in New York in 1965 with a Bachelor of Science degree in ceramic engineering. He then moved to Louisville where he · went to work for Corning Glass Works. Higgins began attending night law school in 1975. Upon graduation from the University of Louisville in 1978, he went to work for Tarrant, Combs and Bullitt. Then, in April, 1985, he joined Middleton and Reutlinger. Besides his enthusiasm for the area of patent law, Higgins also has a growing dedication to the teaching field. "I find teaching to be a real challenge. I still get exc1 eo every time teadi a new c ass;" he said. Negotiations Can Determine Final Sala~y Level by Phyllis D. Liebson Placement Director The issue of salaries is a popular topic among law students seeking paying positions and lawyers or persons in business who are seeking a change in employment. As one will discover in the job market, some salaries are fixed and some are open. In both instances, the way a person approaches the salary negotiations can determine the final salary offer. · First of all, do not begin an interview discussing compensation. Be sure that the employer is going to extend an offer to you first. If the salary has not been made public, then some research is required. Former employees may be willing to share such information. Local sources such as law placement offices, bar associations, and chambers of commerce may provide data on the salaries of similar employers in the marketplace. Descriptive data, not specific information, is available. (The University of Louisville Law Placement Office collects data on the starting salaries of law graduates. An employment and salary study of law graduates with five years experience was conducted, but was inconclusive due to the low rate of responses.) In addition to knowing what salary may be offered, you should know the minimum you would accept and what maximum you desire. Be sure to have well-thought out reasons to substantiate your objectives. Before employers make offers, they may try to extract information from you regarding your present salary. If you do not think your present salary reflects what you are worth, then you are going to have to explain why you are worth more. Be prepared to discuss your accomplishments in terms of dollars and sense ( ... not a spelling error). " Other aspects to consider are salary increases and frequency of salary review. Generally, the lower the salary, the higher the annual percentage increase and the more frequent the review. There are many other forms of compensation other than base salary. Other areas you would want to consider are life and health insurance benefits, company car or gas allowance, memberships to social/athletic clubs, disability and pension plans, and reimbursement of all moving expenses. Salary is an issue upon which you can utilize your negotiating skills. For more detailed suggestions on salary negotiations and considerations for a job change, I suggest the Professional Job Changing System, written by Robert Jameson Gerberg. This book can be borrowed from the Placement Library. -A~p•n-·I-,•1•9-86._ _________________________________________ _.L•o•u-is•v•il•le._L~a~w~E-x~a-m•in•e~r~--------------------------------------------------~3 r Judges Rate Local Attorneys In Survey by Joel D. Zakem More than 36!1/o of local attorneys were rated excellent or above average and more than 26% were rated poor or below average, according to a survey of Jefferson County judges. The survey, by University of Louisville Professors Phillip Laemmle and Paul Weber, was conducted last year. Questionnaires were sent out to all 38 circuit and district court judges. Twentytwo judges responded, and 972 attorneys were evaluated by at least one judge. According to the survey, more than 2,800 attorneys practice in Jefferson County. The authors then reduced the number of attorneys to the 862 who were evaluated by three or more judges. Out of this 862, 790 were listed in Martindale- Hubbell, which allowed Laemmle and Weber to compile other data about their background. These 790 attorneys formed the basis for the survey. The data from Martindale-Hubbell allowed the professors to compare the attorneys based on factors such as age, size of firm,. law school attended, and gender. In a paper submitted to the Southwestern Social Science Association Convention Annual Conference on March 21, 1986, Laemmle and Weber explained the reasoning behind the survey. While the Louisville Bar Association rates judicial candidates at every election, the attorneys are rarely rated. "The evaluation of judges does seem to be an appropriate first step in examining the quality of the court system," said the paper. "But if one is to gauge the effectiveness or performance of any system, it seems necessary to complete the evaluation of all the actors in the system." The questionnaire asked the judges to rank the attorneys on a one to five scale, with one being excellent and five being incompetent. Almost 75% of the attorneys were rated average or better, while only 1.80Jo were rated incompetent. "I was pleasantly surprised at the low number of incompetents,'' said Weber. Weber also had some explanations for the findings that large firms were rater higher than small firms, out-of-state graduates were rated higher than University of Louisville Law School graduates, and male attorneys were rated higher than female attorneys. Weber said he felt that the larger firms had an edge because they had specialists who could concentrate on areas such as litigation or legal writing, while the small firms or sole practitioners did not have this luxury. He said hiring patterns might have a lot to do with University of Louisville's showing. "The difference between University of Kentucky and University of Louisville is statistically significant,'' said Weber, "but not by much." He went on to say that an attorney who graduates from the University of Louisville is more apt to stay in this area, no matter what his prospects are, while attorneys from other schools are less likely to settle in Louisville and start a practice unless they are from this area or have a definite job prospect. In looking at the gender issue, Weber admits to a lack of participation by women in the judiciary. "When we did the survey,'' said Weber, ''there were only two women judges in the county. Neither returned their 55-page survey." While the survey distinguished between the backgrounds of the lawyers in Jefferson County, nothing was done to distinguish the judges through their backgrounds. "In the future, we may differentiate between circuit and district judges," said Weber. Other factors may be used in future surveys, according to Weber, including the possible difference between the ratings of day and night graduates of the University of Louisville. In addition, the judges were asked about substance abuse among the attorneys they rated incompetent, but that data is not yet available. Not all judges were in favor of the survey. ''One judge called it bullshit and refused to participate," said Weber. A few others refused because of fear the results would become politicized. Weber said he doubted that this fear would be justified. The attorneys' names were replaced by numbers, according to Weber, and the list of names were later destroyed. This was done to insure that no individual attorney's rating could be made public. Some of the survey results follow. SUMMARY RATINGS FOR MATCHED ATTORNEYS (N = 790) Knowledge of the Law N % Excellent 95 12.0 Above Average 226 40.6 Average 286 36.2 Below Average 98 12.4 Poor 85 10.8 Knowledge of Court Procedures Excellent Above Average Average Below Average Poor N % 97 12.3 219 27.7 290 36.7 83 10.5 101 12.8 Representation of his/her client Excellent Above Average Average Below Average Poor N % 94 11.9 230 29.1 284 35.9 88 11.1 94 11.9 Quality of Written Work N % Excellent 70 8.9 Above Average 204 25.8 Average 283 35.8 Below Average II2 14.2 Poor I2I I5.3 Quality of Oral Presentations/ Arguments N % Excellent 6I 7.7 Above Average I97 24.9 Average 296 37.5 Below Average 104 I3.2 Poor 132 I6.7 General Professionalism Overall Assessment N Excellent Above Average Average Below Average Poor Excellent Above Average Average Below Average Poor Total Missing values (3) Excellent Above Average Average Below Average Poor Total Missing Values (167) N 95 245 271 75 % 12.0 31.0 34.3 Excellent Above Average Average 104 9.5 13.2 Below Average Poor Overall Evaluation by Attorney Age Attorney Age Under 35 36-45 3 17 2.3% 5.0% 33 86 25.4% 25.2% 59 146 45.4% 42.8% 19 52 14.6% 15.2% 16 40 12.3% 11.7% 130 341 16.5% 43.3% 46-60 34 16.3% 70 33.5% 63 30.1% 15 7.2% 27 12.9% 209 26.6% Overall Evaluation by Size of Firm Size of Firm 1 2-9 10-19 11 25 15 3.4% 13.75% 23.4% 55 65 28 17.2% 35.5% 43.7% 120 70 16 37.5% 38.3% 25.0% 55 17 3 17.2% 9.3% 4.7% 79 6 2 24.7% 3.3% 3.1% 320 183 64 51.4% 29.4% 10.3% 76 210 294 98 112 % 9.6 26.6 37.2 12.4 14.2 Over 61 Total 21 75 19.6% 9.5% 21 210 19.6% 26.7% 25 293 23.2% 37.2% 12 98 11.2% 12.5% 28 111 26.2% 14.1% ,... 107 787 13.6 %100.0% 20+ Total 20 71 35.7 11.4% 21 169 37.5% 27.1% 11 217 19.6% 34.8% 2 77 3.6% 12.4% 2 89 3.6% I4.3% 56 623 9.0% 100.0% Overall Rating by Source of Legal Education Out of Judges' Ratings U of L UK State Total Excellent 51 8 I7 76 8.5% I1.9% 13.5% 9.6% Above Average 149 19 42 210 25.0% 28.4% 33.3% 26.6% Average 236 27 31 294 39.5% 40.3% 24.6% 37.2% Below Average 77 8 I3 98 I2.9% 11.9% 10.3% 12.4% Poor 84 5 23 II2 14.I% 7.5% 18.3% 14.2% Total 597 67 126 790 Missing Values (0) 75.6% 8.5% I5.9% IOO.O% Overall Rating by Gender Judges' Rating Male Female Total Excellent 72 4 76 9.8% 7.I% 9.6% Above Average 199 II 210 27.I% I9.6% 26.6% Average 274 20 294 37.3% 35.7% 37.2% Below Average 90 8 98 12.3% 14.3% I2.4% Poor 99 I3 II2 13.5% 23.2% I4.2% Total 734 56 790 92.9% 7.I% IOO.O% Missing Values (0) (continued on page 7) r / 4 Louisville Law Examiner April, 1986 Kentucky Court Upholds Surrogate Parenting Law by Bill Wilson On February 6, the Kentucky Supreme Court validated the practice of surrogate parenthood in Kentucky. Its decision in Surrogate Parenting Associates, Inc. v Commonwealth removes obstacles to the performance of the procedure. Surrogate parenting involves the artificial insemination of a woman with the sperm of an infertile woman's husband. An agreement, usually made with the assistance of a firm specializing in the procedure, provides for the biological mother to terminate her parental rights following the child's birth. The pioneer organization in Louisville was surrogate Parenting Associates (SPA). It was founded by attorney Katie Brophy and Dr. Richard Levin in 1979. SPA was one of the first in the United States to provide surrogate services. Anything Goes The law school's third annual Libel Night was held at the Red Barn on February 12. The audience voted "Slow White and the Seven Dwarfs,'' a skit written by David Mosley and directed by Janice Weiss, as best act. (Cover) Mason Trenaman as ~rofessor Kanovitz doing the "Law School Shuffle." (Top) David Mosley, as the evil dean, threatens Slow White (Mary Barrazotto) with "C" sickness, as the slave associate dean (Ben Phillips) looks on. (Bottom left) Theresa Brown sings a take-off of "Nothing," from A Chorus Line. (Bottom Right) John Caudill (1) and Ward Richards sing "The Law School Blues." (All Libel Night Photos by Nancy Morgan.) Louvetta Parrott of SPA described their procedure and standards. "We basically act as a broker between mothers and infertile couples. Couples are often referred to us by a doctor or they just have heard about us through word of mouth. We then match a surrogate from our file with the couple." She emphasized that surrogate mothers must meet a rigorous set of standards. The woman must be in good physical condition and have had at least one healthy child of which she has custody. Brophy said that each surrogate mother is prefiled, including medical history, allergies, and any drug, alcohol or cigarette use. She also noted that the average procedure will cost the couple $20,000 to $25,000. The Kentucky court based its decision on the fact that K.R.S. 503.050(2) did not apply to surrogate services. 503,-050' prohibits the "purchase of any child for the purpose of adoption or any other purpose, including the termination of parental rights." · In writing for the majority, Justice Charles Leibson noted: "The essential considerations for the surrogate mother when she agrees to the surrogate parenting procedure are not avoiding the consequences of an unwanted pregnancy or fear of the financial burden of child rearing. On the contrary, the essential consideration is to assist a person or couple who desperately want a child, but are unable to conceive in the customary manner.'' The court held in-vitro fertilization and surrogate parenthood were almost identical in terms of "biological engineering." Since the statute specifically allows in-vitro fertilization, no reason was found to prohibit the surrogate parent procedure. University of Louisville Law Profes: sor Ralph Petrilli agrees. "ldentfying invitro fertilization as valid doesn't mean the legislature il\tended for all other methods to be invalid. Petrilli thinks the case involved a traditional statutory interpretation problem and was given the . proper interpretation. ''The statute refers to a child. It doesn't say anything about a contract to carry a child." Professor Robert Stenger believes laws governing surrogate parenting should be enacted, but is not surprised at the legislative reluctance. "We've had artificial insemination for years and there aren't any laws on the books. The courts will have to fashion interpreta-tions." . Stenger is uncomfortable with that notion. "What's unfortunate is that you're going to have to litigate without a law," he said. "This leaves it up to the court. If the judge is willing to listen to broad equitable arguments, fine. But if he's very mechanical, then you have a problem." Stenger is also concerned with the interests of the child. "Typically, in these arrangements, everyone is represented but the child. In adoption, you must go through agencies which take the child's best interests into account." He feels one option for the legislature would be to require a court or agency to analyze the arrangements in a manner similar to adoption. A contr.a.ct between the surrogat mother and husband of the infertile couple is signed prior to implantation of the sperm. Justice Leibson conceded such a contract did not violate Kentucky law as a document, but noted the agreement was voidable. "Should she (the surrogate) elect to do so, the situation would be no different than had she never entered into the procedure. She would be in the same position vis-a-vis the child and the biological father as any other mother with a child born out of wedlock," said the judge. Brophy has been heavily involved in drafting surrogate agreements. She noted in a 1982 article for the Journal Of Family Law that such contracts act as a "gentleman's agreement" and seek to define the duties of the parties and avoid potential conflicts. Stenger finds most provisions of surrogate agreements unenforceable under contract law. He believes equitable estoppel would be an effective defense in some actions for breach of the surrogate contract, but not when the mother refused to terminate parental rights. "The statute (K.R.S. 199.500(5)) prohibits a valid consent to adoption to be made by the mother less than five days after the birth." Petrilli thinks the birth of a mentally or physically handicapped child would present an interesting dilemma. "Would the father still have to assume custody of the child if he didn't want it? And would he have to support it or would that burden be placed on the mother?'' Although other states have been confronted with a mother's refusal to ter- (continued on page 5) April, 1986 Faculty Members Replace ABC Hearing Officers by Joel D. Zakem Members of the U of L School of Law faculty will serve as Hearing Officers for Jefferson County Alcoholic Beverage Control (ABC) hearings, according to a recent announcement by County Judge Executive Harvey I. Sloane. Professors Leslie W. Abramson, Renardo L. Hicks, Richard H. Nowka, Albert T. Quick and Steven R. Smith, and Assistant to the Dean Kent Lollis have volunteered to participate in the new program, according to Professor Nowka, who is coordinating the program for U of L. The idea of using law professors as Hearing Officers grew out of conversations between Nowka and Jefferson County Safety Director Ron Pregliasco. · ''The county was very interested in the idea for several reasons," said Nowka. One important· reason was economics. In the past, Jefferson County had hired hearing officers to administer the proceedings. Using law school faculty to conduct the hearings on a volunteer basis will save the county approximately $8,000 a year, according to Judge Sloane. "This is just one example of how the county plans to seek creative solutions to the coming budget crunch," said the judge. Professor Nowka explained that the faculty had agreed to act in this capacity on a voluntary basis because "it is part of the job of a professor to perform community service.'' Money was not the only reason that the county approved this plan. Professor Nowka pointed out that the county felt that Law School faculty would be impartial, since they would not be tied to any outside interests. Nowka also said that the hearing procedures are already in place. To familiarize themselves with these proceedings, the faculty members have gone through a training session and have studied the ABC regulations. The hearings are informal, but both the county and the license holder are given the opportunity to present their arguments. "The main thing is that both sides have the opportunity to be heard," said Nowka. Once all testimony is given, the hearing officer decides whether a violation has taken place. If the officer rules against the licensee, various sanctions against the business can be given. These can range from a temporary suspension to revocation of the liquor license. The hearing officer, however, does not have any power to impose criminal sanctions on the license holder. If the licensee disagrees with the hearing officer's decision, it can be appeal~ ed to the state ABC in Frankfort. Law School Dean Barbara Lewis applauded the program, saying it "further emphasizes the commitment of the law school to public service in the community.'' She also said that the program allows the faculty to have an opportunity for practical application of their legal skills. Richard H. Nowka U Of L's Divestment Plans Are Ahead Of Schedule by David Fuller The University of Louisville Foundation, Inc.'s plan to totally divest itself within two years of all funds invested in any U.S. corporations or banks doing business in the Republic of South Africa is proceeding well ahead of schedule, according to David Baker of the University's general counsel staff. All of the Foundation's South African holdings, valued last spring at around $8.5 million, have been sold since the plan's announcement last October 29, except for "four or five blue-chip stocks, such as IBM." These stocks will likely be held until near the plan's deadline of November 1, 1987, on the advice of Mercer-Meidinger, Inc., consultant to the University of Louisville's Finance Committee. Baker emphasized that the retention of the most valuable stocks complies with the Foundation's resolution to implement the policy "as soon as possible, but in an orderly and prudent manner, in keeping with the Board's fiduciary responsibilities.'' Rising moral indignation of South Africa's apartheid system moved the Foundation to adopt the total divestment plan, since the Foundation's fiduciary responsibility to get the best return on investments is coupled with a sense of "social accountability," according to Harry Jones, chairman of the University Foundation Board. The Foundation's initial plan, announced last spring, was one of partial divestment - only those stocks whose companies were not Sullivan Principles signatories would be sold. Only 94 of the 286 U.S. companies that do business in South Africa were signatories as of October, 1985; the University of Louisville's investment in such companies was about $1.5 million. (The Sullivan Principles, named after Philadelphia minister and General Motors director Rev. Leon Sullivan, set civil rights guidelines and specify working conditions for South Africa's black employees.) The arousal of the Foundation's "social accountability'' came from growing national and University and community resentment of the U.S.'s toleration of the apartheid system. Columbia University's divestment campaign lasted fourteen years before achieving success. Other states with universities resolving to totally divest include Maine, Arizona, Ohio and Michigan, according to the American Committee on Africa. The southern region has been predictably slow to divest: the University of Louisville resolution, twenty-third nationally, was the first from a major southern university outside Miami (Florida), a school not truly "southern," and Howard University, a predominately black school in Washington, D.C. Deborah Romero, a member of the steering committee of the Progressive Students League (PSL), which, along with the Students Against Apartheid, led the local divestment campaign, said adoption by the Foundation of divestment plans required serious demonstrations and pleadings to illustrate the intensity of emotions towards apartheid in the University and local community. Romero said the PSL pressed the Faun-dation to adopt a plan of total divestment as soon as possible as "a chance to make a statement to other universities in the region, as part of the University of Louisville's 'Quest For Excellence'." Since the University of Louisville's October announcement, the University of Kentucky has resolved to partially divest itself of South African holdings. Ms. Romero added that the PSL established a monitoring committee ''to make sure they're doing what they say they are," and is continuing to bring attention to Africa related problems. Surrogate Parenting (continued from page 4) minate her rights in regard to the child, this situation has not occured in Kentucky. Parrott believes it is unlikely. "Most of them (surrogate mothers) enjoy the pregnancy experience, but don't want the responsibility of rearing another child," she said. She noted a number of women first consider becoming a surrogate when friends have had difficulty conceiving. However, SPA does not allow mothers to carry the children of friends. "There is too much room for conflict," stated Parrott. Organized resistance to surrogate parenthood has not been a problem for either of the two Louisville agencies. Executive director of the Louisville chapter of Right To !--ife, Margie Montgomery, stated the organization had not taken a position on the issue. Professor Petrilli believes the surrogate procedure has attracted little attention due to the small number performed. "Thousands of abortions are performed every year, but only a few hundred surrogates are performed," he said. 6 Louisville Law Examiner April, 1986 Professor Warns Ends Distinguished Teaching Career \ \ -\ Carl "Pop" Warns by Karl Truman The closing of this semester will bring another retirement to the University of Louisville Law School. Professor Carl "Pop" Warns will be leaving the school for the less stressful life of arbitration and retirement. Warns is probably best known for his expertise in the field of labor law. After graduating from the University of Louisville Law School in 1938, he began working in the industrial relations department of Seagrams Distilleries. He stayed with Seagrams until1941, when he was named acting director of industrial relations for the company. That job only lasted one month, however, since Warns was drafted. After World War II, Warns attended Harvard, receiving his Ll.M. in 1947. His teaching career began at the University of Miami, but Warns soon returned to the University of Louisville. It was here that Warns began his arbitration practice. Warns was recalled to the service during the Korean Conflict. After returning to Louisville in 1953, he continued to arbitrate on a local basis. These arbitrations eventually became national in scope. Warns has arbitrated for such companies as Goodyear Tire and Rubber, Continental Airlines and Western Airlines. In 1971, Warns began arbitrating for the U.S. Postal Service. He was given the southwest region, which encompassed eleven states and contains over 100,000 postal employees. These arbitrations, and the time they required him to spend in the field, caused Warns to consider leaving the teaching profession. He submitted his resignation in 1968, only to be talked out of leaving by then university president, Dr. Stricker. Instead of resigning, Warns was allowed to take an indefinite leave. He returned periodically to work on special assignments for the school. One such assignment was the setting up of a grievance procedure for faculty, staff and students. Warns returned to teaching five years ago, after open heart surgery forced him to resign his arbitration practice. He has 3ince signed on with the TV A as an arbitrator, and says he is under pressure from others to return to arbitration. Warns has received many honors in his career in labor arbitration. He was the first academic to be offered a position with the National Labor Relations Board (NLRB). He was forced to turn down the appointment, however, when the university would not grant him a five-year leave of absence. Former Kentucky Governor Bert Combs offered Warns the position of State Director of Industrial Relations, but this job was also rejected. Warns said he felt that he would have encountered difficulty in picking up his arbitration practice when his term was up. Labor relations is not the only area in which Warns has earned a great deal of recognition. He had many prestigious assignments during his military career. Warns entered the service as an enlisted man in 1941, but was commissioned by the Air Force eighteen months later. After receiving his commission, he spent some time as an instructor for officer's candidate school. He was also an instructor at the Aviation Cadet Center in San Antonio. In 1945, Warns began interviewing returning American P.O.W.s for reassignment and rehabilitation. During this time, he interviewed a group of American nurses who were captured by the J apanese on Bataan. He said he found the last experience particularly interesting. Warns was later placed in charge of office personnel at the Redistribution Center in San Antonio, where he aided individuals in returning to civilian life. He was discharged from the service in 1946, but he kept his reserve commission. This led to his being recalled during the Korean Conflict. During the Korean War, Warns served in the Strategic Air Command (SAC) as part of the staff of General Curtis LeMay. As Staff Operations Officer, he dealt with much classified in-formation and several times travelled overseas to inspect SAC bases. Warns has always enjoyed flying, and his military career &ave him the opportunity to work closely with planes and the people who piloted them. Warns decided, however, to resign his commission, but he stayed active in flying, and still flies with a pilot accompanying him. After retirement, Warns plans toresume a reasonable amount of professional arbitration. He says he finds arbitration much less stressful than teaching. Warns also said that his arbitration practice takes him to Florida quite a bit, and he would "like to get in as much beach time as possible.'' Because of his heart condition, Warns must maintain a regular exercise program. Warns also hopes to continue his research and do some writing. This is one area Warns wishes would be stressed more among the faculty. ''To do an effective job,'' he said, ''a teacher must do scholarly research and expose the students to things they might not get on their own." Warns added that he feels Dean Lewis has done more to encourage scholarly research than any of the law school's previous· deans. Journal Hosts Conference (continued from page 1) participation "improves the education of the student, makes the students better lawyers, and makes a body of legal work.'' She emphasized that one of the major roles of law reviews is "to provide a forum for new ideas." L. Stanley Chauvin, of Barnett & Nagia, speaking from a practitioners point ·of view, said that law reviews are able to "pioneer new areas of the law and provide fresh approaches to the law. The most important right is the right to be outrageous," he said, emphasizing the need to provide fresh approaches to the law. Chauvin also felt that law reviews operate to unify the legal profession "lawyers don't have a common thread, law review articles help provide it," he said. He said he basically uses law reviews for the information they provide. He said they are more authoritative and because they aren't written from an adversary point of view, they are more rationale. "Practitioner's get more benefit from law reviews than they'll admit," he said. Elliott H. Levitas, former U.S. Congressman from Georgia, was the last speaker on the panel discussion. His task was to examine the role of law reviews from a legislator's point of view. Levitas said that he felt there was not enough material in law reviews on legislation. "There is too much focus on the judicial process, and not enough on the legislative process." He said he would like to see more articles that "review the rule-making, legislative, history and conclude by making proposals." One area Levi tis said needs to be researched is hazardous waste sites, the regulation~--of which is currently being examined in Congress. "At present, there is no research material on hazardous waste sites," he said. Levitas said that he prefers to see articles with lots of scholarly research and analysis of precedent. "Opinions are less important, it's more important to have a bedrock of authority.'' Chief Justice Stephens then added that he would like to see some law review articles dealing with sovereign immunity and municipal immunity, which he said are being closely examined by the courts of Kentucky. Chauvin added that he would like to see more articles dealing with the judicial history of statutes, with particularly close attention being paid to dissenting opinions which he said are very important. Other programs at the Conference dealt with the editorial function and process, author relations, symposium issues, and writing style. Chuck Adams and Greg Cinnamon, of the University of Louisville's Journal Of Family Law, have been organizing and preparing for the Conference since last summer. The proposal to hold the Conference was submitted by the Journal Of Family Law two years ago. Many local law firms contributed to help make it possible for the Journal to host the Conference. Law reviews are important not only to the legal writer working on research, but for the students who participate in them. As Chauvin said, "Law reviews are instilling. This is the last shot to put concepts on the front burner.'' (related story on page 7) April, 1986 Louisville Law Examiner Anderson Attacks Attorneys At Journal Conference Lawyers Are Rated (continued from page 3) Overall Rating by Gender for Attorneys Graduating After 1975 Judges' Rating Male Female Total by Tom Ransdell "We are abusing the legal system. Two-thirds of the world's lawyers are suing people in the United States, and if the legal profession doesn't do something about it, the people will," Jack Anderson told the guests and delegates to the National Conference of Law Reviews thirty-second annual convention. Anderson, who was awarded the Pulitzer Prize for national journalism in 1972, was introduced by Greg Cinnamon as "an unguided missile, with multiple warheads likely to strike anywhere." True to the introduction, he proceeded to launch an all-out attack against the legal profession. Anderson's column appears in over I ,000 newspapers, and he is best known for his investigative reporting and sensational exposes. Anderson has published detailed articles, including names, on subjects such as a drug ring· on Capitol Hill and the existence and leadership of the Mafia. "While other reporters cover Washington, we try to uncover it," An-· derson said. · While speaking on the topic of over-zealous litigation, Anderson told of how journalists in this country had been threatened by subversives, shot by gangsters, and thrown in jail by crooked politicians, all without being intimidated from telling the truth. "Lawyers have accomplished what the gangsters and the subversives and the crooked politicians could not do," he said. "[News editors] are refusing to print stories because we cannot afford the legal bills anymore." "A free people would be better off with a newspaper and no government than to have a government without a newspaper," Anderson said. In one of the many personal lawsuits he recounted, Anderson told of how he had been sued by a woman on a meritless claim. The woman was willing to settle for $500, but if Anderson had wanted to prove his innocence and clear his name, the legal bill would have been $5,000. "This is extortion. This is immoral. This is obscene," said Anderson. "I've never lost a lawsuit," said Anderson. "Why should I have to pay more for lawyers than I do for reporters? If a jury says I'm innocent, then why should I be punished?" Anderson proposed a solution to the legal dilemma he sees confronting our country. "All we have to do is require the loser to pay the legal fees of the winner. And if the plaintiff can't pay my legal fees, let his attorney pay them." Anderson also came out in favor of federal liability insurance and against the Graham-Rudman Act, which he said delegates to a computer budgetary decisions that only Congress should make. Anderson was particularly skeptical of deficit reducing measures which he said are usually followed by a rise in taxes. "In the thirty-nine years since I've been in Washington, the median family income has increased seven and one-half times," he said. "During that same period, taxes have increased 246 times." Anderson, who received a standing ovation from the NC LR delegates who attended the Conference, began his journalism career in 1946 with Stars And Stripes. In 1947, he joined columnist Drew Pearson's staff and took over the column when Pearson died in 1969. Excellent 5 3 8 2.711fo 6.5% 3.5% Above Average 43 8 51 23.5% 17.4% 22.3% Average 81 18 88 44.3% 39.1% 43.2% Below Average 28 7 35 15.3% 15.2% 15.3% Poor 26 10 36 14.2% 21.7% 15.711fo Missing Values 183 46 229 79.9% 20.1% 15.7% Howtobuya · · • Pernormance You can use the American Express® Card <:'> -;(") 0 0 0 !"" c ?$ , c:n -< "" ...... ~ '"' :c ~ to buy concert tickets for your favorite • tio~~~f.~ ~~ea~lte~~ ~~~e:~ ~0:/f~~ra~a~~ little things, and the big-ticket items, that you 'll want during college. How to get the Card before you graduate. Because we believe college is the first sign of success, wf!.ve made it easier for you to get the American Express Card. Graduating students can get the Card as soon as they accept a SIO ,000 career-oriented job. If you're not graduating yet, you can apply for a special sponsored Card. Look for student applications on campus. Or calll-800-THE-CARD, and tell them you want a student application. The American Express Card. Don't leave school without it ~M 7 8 Louisville Law Examiner Professor Teitelbaum Leaves Library For Full-Time Teaching Position by Bill Wilson Next fall , University of Louisville Law Librarian Gene Teitelbaum will leave his post and assume a new role as a full-time professor. He will teach Administrative Law in the fall and Constitutional Law II next spring. Both classes will be in the evening division. Teitelbaum gave several reasons for the move. "I want to use the law library," he said. "Librarian is more than a full-time job, so I really haven't had a chance." He also expressed a desire to learn new substantive law and become more involved with the students. "Maybe I'm a ham, but I enjoy being in front of a class," he said. Teitelbaum is a graduate of the Rutgers School of Law and was associate librarian at Duke before coming to Louisville in 1975. Eleven years ago, the law library was housed in over-crowded facilities and supported by an inadequate budget. "One of the reasons the budget was so small was because there was no room for additional books," Teitelbaum recalled. He feels the increase in space has been the biggest change since 1975. "For books we have enough physical space for another 20 years. There are also more study areas and conference rooms for student use." Another area of improvement has been the budget. "There is an adequate amount to maintain our collection and provide good basic services." Teitelbaum feels that despite the progress, areas of improvement remain. He cited a book security system to reduce theft and further increases in the budget as examples. "I would like to see the library acquire the official reporters for all 50 states. New areas grow for which we need money. Five years ago, AIDS was unheard of. Today there are three or four books covering the legal aspects of it." Teitelbaum believes Lexis and Westlaw will assume a greater role in the law library of the future. "Students today are more mechanically inclined. They are better able to make use of the technology.'' He thinks the same will hold true for practicing attorneys. "Books are expensive to buy and maintain. For someone in rural Kentucky, a computer in the office is certainly more convenient than traveling to Louisville to research a case." But Teitelbaum disagrees with the idea that books will become obsolete. "There will always be a need for books. Computers don't analyze. For that you still will need to look at a treatise or other commentary.'' A committee to search for a new librarian has been formed with Teitelbaum as chairman. Other faculty members on the committee are Professors Merritt, Blackburn and Read. The list of candidates has been narrowed to four or five finalists, with each finalist scheduled to visit the campus during the month of April. lnuisville Law Examiner School of Law University of Louisville Louisville, Kentucky 40292 Gene Teitelbaum Non-Profit Organization U.S. POSTAGE PAID Permit No. 769 Louisville, KY John M. Harlan Louis D. Brand~is ' ·~· .. ~ Louisville\ ~· Law. Examiner Volume 11 Race And Jury Selection Page 1 Judges Rate Local Attorneys Page 3 Surrogate Parenting Upheld Page 4 More Libel Night Photos Page 4 April, 1986 Number 4 Photo by Nancy Morgan
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Title | Louisville Law Examiner 11.4, April 1986 |
Alternative Title | Law Student Publications |
Contributors | University of Louisville. School of Law |
Description | The Louisville Law Examiner (1975-1991) was the second of three official University of Louisville School of Law student publications. |
Searchable Text | Louisville Law Examiner Serving the University of Louisville School of Law Community Volume 11, Number 4 Louisville, Kentucky - April, 1986 Circulation 5,400 High Court To Decide Kentucky Peremptory Challenge Case . by Paula Douglass representative cross section of the com- Heightened publicity, defense counsel indignation, and a magnitude of inconsistency in the lower courts prompted the U.S. Supreme Court to reconsider the constitutionality of the use of peremptory challenges to exclude blacks and other minorities. Previously, in the case of Swain v. Alabama, 380 U.S. 202 (1965), the Court ruled that systematic exclusion of black jurors violates the Fourteenth Amendment Equal Protection Clause. To establish the constitutional violation, however, such exclusion must be shown in a pattern of trials rather than in a single trial, a burden which is virtually insurmountable. The case of Batson v. Commonwealth of Kentucky, argued before the U.S. Supreme Court last December, once again brings this issue to the forefront. James Kirkland Batson, a black man, was convicted by an all-white jury in February, 1984 in Jefferson Circuit Court of second degree burglary and receiving stolen property valued at more than $100.00. He was sentenced to twenty years in prison for both counts, after second-degree persistent felony offender status was established. The Kentucky Supreme Court affirmed the conviction. During jury selection at Batson's trial, prosecutor Joe Gutmann exercised peremptory challenges to exclude all four black jurors on the panel. Public defender Doug Dowell objected to the swearing in of an all-white jury because the exclusion-of blacks denied Batson's Sixth Amendment right to a fair and impartial jury drawn from a munity. The motion was denied. Before the U.S. Supreme Court, as' sistant Jefferson County public defender J. David Neihaus asserts that a Sixth Amendment analysis rather than the Fourteenth Amendment analysis established in Swain should be employed when systematic exclusion of black jurors is at issue. Neihaus argues that the fair cross section requirement of the Sixth Amendment set forth in Taylor v Louisiana, 419 U.S. 522 (1975), which applies to jury pools, should be extended to the actual jury selection process to ensure impartiality. Assistant Kentucky Attorney General Rickie L. Pearson contends that ex-' tension of the cross section requirement to petit juries has no constitutional basis and that the only way to ensure impartiality is to allow jurors to be selected without explanation or inquiry. Professor Albert T. Quick of the U niversity of Louisville School of Law believes that "the Court will not extend Taylor because the majority of Justices view this as a Fourteenth Amendment issue and are not willing to extend the Sixth Amendment's fair cross section requirement of jury pool to the jury selected." As such, the Swain decision which requires systematic exclusion in a pattern of cases to establish an Equal Protection violation will be upheld. A pattern of exclusion was not established in this case and thus there was no constitutional violation. Quick adds that "the Sixth Amendment's guarantee of an impartial jury is I ~ -~ -~ THE GREAT DEBATE Professors Renardo L. Hicks and Albert T. Quick (standing) debate the exclusionary rule at a debate sponsored by the Law Forum on February 24. Hicks spoke in favor of the rule, saying it was needed to protect constitutional rights, while Quick said the rule harms individual rights. Photo by Nancy Morgan a right of the accused. Thus, an individual juror has not had his constitutional right under the Sixth Amendment infringed by a peremptory challenge, and therefore, no constitutional remedy under the Sixth Amendment need be provided by striking him." Nevertheless, Batson contends that use of peremptory challenges to remove blacks and other minorities results in a loss of faith in the integrity of jury trials, particularly in the minority community. Quick believes that "if peremptory challenges are used to exclude an identifiable group, you will have a reaction in the community that does reflect a loss of confidence in the criminal justice system, but that is not necessarily a constitutional violation. You could still have an impartial jury, but one that does have a negative societal impact." Professor Les Abramson agrees that exercise of peremptory challenges against an identifiable group may still result in an impartial jury. Batson also asserts that wholesale exclusion of a particular group from jury service allows the prejudices of the majority to dominate the group. The State argues that impartiality is not assured by balancing biases and that the role of the peremptory challenge is to remove the extremes of partiality on both sides without a stated reason, without inquiry, and without being subject to the state's control. In addition, there is a legitimate question whether black jurors are more partial to members of their own race. Abramson notes that "some say black jurors might be more punitive against their own race, although I don't know if anyone has empirically tried to prove this." As an analogy, Abramson offers that his experience has been that "students on the honor council tend to be more punitive than faculty." The remedy proposed in Batson is that set forth in Wheeler v California 148 Cal. Rptr. 890, 583 P. 2d. 749 (Cal. 1978), and adopted with variations by several states and the Federal Courts of Appeals in the Second, Fifth, and Sixth Circuits. However, the majority of state and federal jurisdictions which have considered the issue have reaffirmed Swain. The Wheeler rule provides that a prosecutor's exercise of a disproportionate number of peremptory challenges to exclude members of an identifiable group shifts the burden to the prosecutor to explain his reasons for so exercising his challenges. Under such an approach, Abramson believes that "the effectiveness of the peremptory challenge is curtailed if not gutted." Quick also sees implementation problems such as difficulty in determining the prosecutor's motives. Notwithstanding the implementation problems, Quick believes that Batson presents an issue for which "the states, pursuant to their own constitutions and procedures should fashion a remedy." A decision is expected in late Spring. Quick predicts the Supreme Court will rule either seven to two or eight to one in favor of the Commonwealth of Kentucky, with Justice Marshall joined either by Justice Brennan or Justice Stevens in dissenting. Journal Of Family Law Hosts National Conference by Tom Ransdell Chief Justice Robert F. Stephens of the Kentucky State Supreme Court, told delegates to the Thirty-Second Annual National Convention of Law Reviews at the Brown Hotel that, "Being on a law journal helps create and sustain an interest in changing the law. In addition, it gives an overview of the law and helps develop a philosophy of the law.'' Justice Stephens spoke at a panel discussion on the role and function of law reviews. He felt that other benefits were that journal participation provides good practical experience and that it develops mental toughness. "It teaches you to go the extra mile." Justice Stephens concentrated on the role of law reviews from a judicial viewpoint. He said that appellate judges regularly read law journals and that they are a valuable resource. "I especially like articles that discuss both sides of an issue and then choose between them," he said. Dean Barbara Lewis was also a member of the panel discussion. She spoke on the role of law reviews from an educator's point of view. "I would like to see a greater emphasis 'on student publishing," she said. "Every article doesn't have to be perfect." Dean Lewis pointed out that student (continued on page 6) --- •• 2 Louisville Law Examiner April, 1986 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 Paula Douglass Jennifer C. Miller David Fuller Bill Wilson Karl Truman Jayne Moore Waldrop 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 Students, Staff, and Faculty: My family and I thank you all for the strong support you have sho~n us these past months. Your generosity, kindness, and patience have helped us cope with my daughter's illness. As of this point, my daughter has recovered from surgery and is doing quite well overall. She should be returning home in the near future. Professor Richard Nowka To The Editor: Our present legal system is under serious attack by the insurance industry, the organized medical profession and by the manufacturing associations. This is due to larger and larger damage awards and to the sharp increase in the number of suits filed over the past decade. Our own Senator Mitch McConnell has introduced S.2038, to limit the amount of a lawyer's contingent fee, and S.2046, to limit the amount of damages payable in tort claim cases. Both these approach the problem much like the ancient's killing the messenger who bore bad news, or the mother who threw the baby out with the wash! Here is their logic: doctors are being sued for malpractice and large awards granted. To stop this, lets take away the lawyer's fee, so there won't be as many suits. Instead, whv don't thev work to reduce medical ne~-li-gence so. there will be no need for ' suits? A new publication, Products Liability Commentan· and Cases, published by Callaghan & Company, included in an article bv Mr. E. G. Jefferson, Chairman, E." I. duPont de Nemours and Company. He cited an example of what he sees as the problem, a case involving the New York Transit Authority, (NYT A hereafter) paying $650,000 to settle a claim by a person injured while attempting suicide by throwing himself ndera-subwaytrain-:- On its face, this seems silly and Mr. Jefferson leaves it at that. But do you think the NYT A management and lawyers "checked their brains at the door" when they settled this claim? Perhaps others had done this before and perhaps NYT A had erected a fence to block access, and perhaps the fence was not properly maintained. Thus, all the elements of liability could be present in this case and it might therefore be prudent to settle rather than risk a large verdict. But we are not given the facts. This is the kind of hysteria and hyperbole used by those fighting the lawyers. Senator McConnell ought to keep in mind that there are more plaintiffs than there are defendants. My own experience in Jefferson County indicates the number of suits has leveled off or slightly declined. I remember that there were about 12,000 suits filed in circuit court in 1984, and about 10,000 in 1985. I do not know how many were divorces, adoptions, appeals from district court, so it is hard to say how many were tort claims in either year. If this number is typical of the country, though, then the peak seems to have been reached. Finally, who is going to arrogate unto himself the right and power to tell others when their suit is "unfounded," or "excessive" or "unjustified"? I say we ought to be studying ways to make the judicial system more available, not less available, to the ordinary citizen. It is indeed his court of last resort. Donald L. White Class of 1965 Night And Day Higgins Appreciates Both Practice And Teaching by Winnie McConnell There are attorneys who devote their time solely to the practice of law. There are also those attorneys who not only practice the law, but also teach the law. James R. Higgins Jr. is one such local attorney who, throughout the past several years, has taught in the University of Louisville Law School's evening division a variety of courses, such as UCC I, II and III; Corporations; and Consumer Transactions. Currently, he is teaching patent law on Wednesday and Thursday evenings. Higgins, who graduated first in the evening division class at the University of Louisville in December, 1978, said he owes a great deal to the law school. "If it were not for the law school's night division and for the many professors who dedicated their efforts to the night division, I would not have a law degree today," he said. For this reason, Higgins has returned to the University of Louisville to "help give back that which was given to me." In the patent law course he now teaches, Higgins said his strategy is to emphasize the reasoning behind the courts' decisions. He wants his students to understand the competing policies occurring in patent law as opposed to reading a conglomerate of cases. "I try to bring practical inferences ine- the-elassroom to- help 'Hustrat-e-thepoint of the case in real life situations," he said. "I want to intertwine case law with the constitutional philosophy of patient law - to promote the progress of science and the useful arts.'' Patent law is nothing new to Higgins, who is a licensed patent attorney with the law firm Middleton and Reutlinger. In fact, Higgins took and passed the patent bar examination while still a law student at the University of Louisville. Currently, his practice is divided between commercial law, concentrating on the Uniform Commercial Code, and patent law. "Patent law is a growing part of my practice," said Higgins. "I am striving to eliminate the view that here in Louisville, the practice of patent law is a cure for which there is no known dis-ease." _ A native of Berea, Ohio, Higgins graduated from Alfred University in New York in 1965 with a Bachelor of Science degree in ceramic engineering. He then moved to Louisville where he · went to work for Corning Glass Works. Higgins began attending night law school in 1975. Upon graduation from the University of Louisville in 1978, he went to work for Tarrant, Combs and Bullitt. Then, in April, 1985, he joined Middleton and Reutlinger. Besides his enthusiasm for the area of patent law, Higgins also has a growing dedication to the teaching field. "I find teaching to be a real challenge. I still get exc1 eo every time teadi a new c ass;" he said. Negotiations Can Determine Final Sala~y Level by Phyllis D. Liebson Placement Director The issue of salaries is a popular topic among law students seeking paying positions and lawyers or persons in business who are seeking a change in employment. As one will discover in the job market, some salaries are fixed and some are open. In both instances, the way a person approaches the salary negotiations can determine the final salary offer. · First of all, do not begin an interview discussing compensation. Be sure that the employer is going to extend an offer to you first. If the salary has not been made public, then some research is required. Former employees may be willing to share such information. Local sources such as law placement offices, bar associations, and chambers of commerce may provide data on the salaries of similar employers in the marketplace. Descriptive data, not specific information, is available. (The University of Louisville Law Placement Office collects data on the starting salaries of law graduates. An employment and salary study of law graduates with five years experience was conducted, but was inconclusive due to the low rate of responses.) In addition to knowing what salary may be offered, you should know the minimum you would accept and what maximum you desire. Be sure to have well-thought out reasons to substantiate your objectives. Before employers make offers, they may try to extract information from you regarding your present salary. If you do not think your present salary reflects what you are worth, then you are going to have to explain why you are worth more. Be prepared to discuss your accomplishments in terms of dollars and sense ( ... not a spelling error). " Other aspects to consider are salary increases and frequency of salary review. Generally, the lower the salary, the higher the annual percentage increase and the more frequent the review. There are many other forms of compensation other than base salary. Other areas you would want to consider are life and health insurance benefits, company car or gas allowance, memberships to social/athletic clubs, disability and pension plans, and reimbursement of all moving expenses. Salary is an issue upon which you can utilize your negotiating skills. For more detailed suggestions on salary negotiations and considerations for a job change, I suggest the Professional Job Changing System, written by Robert Jameson Gerberg. This book can be borrowed from the Placement Library. -A~p•n-·I-,•1•9-86._ _________________________________________ _.L•o•u-is•v•il•le._L~a~w~E-x~a-m•in•e~r~--------------------------------------------------~3 r Judges Rate Local Attorneys In Survey by Joel D. Zakem More than 36!1/o of local attorneys were rated excellent or above average and more than 26% were rated poor or below average, according to a survey of Jefferson County judges. The survey, by University of Louisville Professors Phillip Laemmle and Paul Weber, was conducted last year. Questionnaires were sent out to all 38 circuit and district court judges. Twentytwo judges responded, and 972 attorneys were evaluated by at least one judge. According to the survey, more than 2,800 attorneys practice in Jefferson County. The authors then reduced the number of attorneys to the 862 who were evaluated by three or more judges. Out of this 862, 790 were listed in Martindale- Hubbell, which allowed Laemmle and Weber to compile other data about their background. These 790 attorneys formed the basis for the survey. The data from Martindale-Hubbell allowed the professors to compare the attorneys based on factors such as age, size of firm,. law school attended, and gender. In a paper submitted to the Southwestern Social Science Association Convention Annual Conference on March 21, 1986, Laemmle and Weber explained the reasoning behind the survey. While the Louisville Bar Association rates judicial candidates at every election, the attorneys are rarely rated. "The evaluation of judges does seem to be an appropriate first step in examining the quality of the court system," said the paper. "But if one is to gauge the effectiveness or performance of any system, it seems necessary to complete the evaluation of all the actors in the system." The questionnaire asked the judges to rank the attorneys on a one to five scale, with one being excellent and five being incompetent. Almost 75% of the attorneys were rated average or better, while only 1.80Jo were rated incompetent. "I was pleasantly surprised at the low number of incompetents,'' said Weber. Weber also had some explanations for the findings that large firms were rater higher than small firms, out-of-state graduates were rated higher than University of Louisville Law School graduates, and male attorneys were rated higher than female attorneys. Weber said he felt that the larger firms had an edge because they had specialists who could concentrate on areas such as litigation or legal writing, while the small firms or sole practitioners did not have this luxury. He said hiring patterns might have a lot to do with University of Louisville's showing. "The difference between University of Kentucky and University of Louisville is statistically significant,'' said Weber, "but not by much." He went on to say that an attorney who graduates from the University of Louisville is more apt to stay in this area, no matter what his prospects are, while attorneys from other schools are less likely to settle in Louisville and start a practice unless they are from this area or have a definite job prospect. In looking at the gender issue, Weber admits to a lack of participation by women in the judiciary. "When we did the survey,'' said Weber, ''there were only two women judges in the county. Neither returned their 55-page survey." While the survey distinguished between the backgrounds of the lawyers in Jefferson County, nothing was done to distinguish the judges through their backgrounds. "In the future, we may differentiate between circuit and district judges," said Weber. Other factors may be used in future surveys, according to Weber, including the possible difference between the ratings of day and night graduates of the University of Louisville. In addition, the judges were asked about substance abuse among the attorneys they rated incompetent, but that data is not yet available. Not all judges were in favor of the survey. ''One judge called it bullshit and refused to participate," said Weber. A few others refused because of fear the results would become politicized. Weber said he doubted that this fear would be justified. The attorneys' names were replaced by numbers, according to Weber, and the list of names were later destroyed. This was done to insure that no individual attorney's rating could be made public. Some of the survey results follow. SUMMARY RATINGS FOR MATCHED ATTORNEYS (N = 790) Knowledge of the Law N % Excellent 95 12.0 Above Average 226 40.6 Average 286 36.2 Below Average 98 12.4 Poor 85 10.8 Knowledge of Court Procedures Excellent Above Average Average Below Average Poor N % 97 12.3 219 27.7 290 36.7 83 10.5 101 12.8 Representation of his/her client Excellent Above Average Average Below Average Poor N % 94 11.9 230 29.1 284 35.9 88 11.1 94 11.9 Quality of Written Work N % Excellent 70 8.9 Above Average 204 25.8 Average 283 35.8 Below Average II2 14.2 Poor I2I I5.3 Quality of Oral Presentations/ Arguments N % Excellent 6I 7.7 Above Average I97 24.9 Average 296 37.5 Below Average 104 I3.2 Poor 132 I6.7 General Professionalism Overall Assessment N Excellent Above Average Average Below Average Poor Excellent Above Average Average Below Average Poor Total Missing values (3) Excellent Above Average Average Below Average Poor Total Missing Values (167) N 95 245 271 75 % 12.0 31.0 34.3 Excellent Above Average Average 104 9.5 13.2 Below Average Poor Overall Evaluation by Attorney Age Attorney Age Under 35 36-45 3 17 2.3% 5.0% 33 86 25.4% 25.2% 59 146 45.4% 42.8% 19 52 14.6% 15.2% 16 40 12.3% 11.7% 130 341 16.5% 43.3% 46-60 34 16.3% 70 33.5% 63 30.1% 15 7.2% 27 12.9% 209 26.6% Overall Evaluation by Size of Firm Size of Firm 1 2-9 10-19 11 25 15 3.4% 13.75% 23.4% 55 65 28 17.2% 35.5% 43.7% 120 70 16 37.5% 38.3% 25.0% 55 17 3 17.2% 9.3% 4.7% 79 6 2 24.7% 3.3% 3.1% 320 183 64 51.4% 29.4% 10.3% 76 210 294 98 112 % 9.6 26.6 37.2 12.4 14.2 Over 61 Total 21 75 19.6% 9.5% 21 210 19.6% 26.7% 25 293 23.2% 37.2% 12 98 11.2% 12.5% 28 111 26.2% 14.1% ,... 107 787 13.6 %100.0% 20+ Total 20 71 35.7 11.4% 21 169 37.5% 27.1% 11 217 19.6% 34.8% 2 77 3.6% 12.4% 2 89 3.6% I4.3% 56 623 9.0% 100.0% Overall Rating by Source of Legal Education Out of Judges' Ratings U of L UK State Total Excellent 51 8 I7 76 8.5% I1.9% 13.5% 9.6% Above Average 149 19 42 210 25.0% 28.4% 33.3% 26.6% Average 236 27 31 294 39.5% 40.3% 24.6% 37.2% Below Average 77 8 I3 98 I2.9% 11.9% 10.3% 12.4% Poor 84 5 23 II2 14.I% 7.5% 18.3% 14.2% Total 597 67 126 790 Missing Values (0) 75.6% 8.5% I5.9% IOO.O% Overall Rating by Gender Judges' Rating Male Female Total Excellent 72 4 76 9.8% 7.I% 9.6% Above Average 199 II 210 27.I% I9.6% 26.6% Average 274 20 294 37.3% 35.7% 37.2% Below Average 90 8 98 12.3% 14.3% I2.4% Poor 99 I3 II2 13.5% 23.2% I4.2% Total 734 56 790 92.9% 7.I% IOO.O% Missing Values (0) (continued on page 7) r / 4 Louisville Law Examiner April, 1986 Kentucky Court Upholds Surrogate Parenting Law by Bill Wilson On February 6, the Kentucky Supreme Court validated the practice of surrogate parenthood in Kentucky. Its decision in Surrogate Parenting Associates, Inc. v Commonwealth removes obstacles to the performance of the procedure. Surrogate parenting involves the artificial insemination of a woman with the sperm of an infertile woman's husband. An agreement, usually made with the assistance of a firm specializing in the procedure, provides for the biological mother to terminate her parental rights following the child's birth. The pioneer organization in Louisville was surrogate Parenting Associates (SPA). It was founded by attorney Katie Brophy and Dr. Richard Levin in 1979. SPA was one of the first in the United States to provide surrogate services. Anything Goes The law school's third annual Libel Night was held at the Red Barn on February 12. The audience voted "Slow White and the Seven Dwarfs,'' a skit written by David Mosley and directed by Janice Weiss, as best act. (Cover) Mason Trenaman as ~rofessor Kanovitz doing the "Law School Shuffle." (Top) David Mosley, as the evil dean, threatens Slow White (Mary Barrazotto) with "C" sickness, as the slave associate dean (Ben Phillips) looks on. (Bottom left) Theresa Brown sings a take-off of "Nothing," from A Chorus Line. (Bottom Right) John Caudill (1) and Ward Richards sing "The Law School Blues." (All Libel Night Photos by Nancy Morgan.) Louvetta Parrott of SPA described their procedure and standards. "We basically act as a broker between mothers and infertile couples. Couples are often referred to us by a doctor or they just have heard about us through word of mouth. We then match a surrogate from our file with the couple." She emphasized that surrogate mothers must meet a rigorous set of standards. The woman must be in good physical condition and have had at least one healthy child of which she has custody. Brophy said that each surrogate mother is prefiled, including medical history, allergies, and any drug, alcohol or cigarette use. She also noted that the average procedure will cost the couple $20,000 to $25,000. The Kentucky court based its decision on the fact that K.R.S. 503.050(2) did not apply to surrogate services. 503,-050' prohibits the "purchase of any child for the purpose of adoption or any other purpose, including the termination of parental rights." · In writing for the majority, Justice Charles Leibson noted: "The essential considerations for the surrogate mother when she agrees to the surrogate parenting procedure are not avoiding the consequences of an unwanted pregnancy or fear of the financial burden of child rearing. On the contrary, the essential consideration is to assist a person or couple who desperately want a child, but are unable to conceive in the customary manner.'' The court held in-vitro fertilization and surrogate parenthood were almost identical in terms of "biological engineering." Since the statute specifically allows in-vitro fertilization, no reason was found to prohibit the surrogate parent procedure. University of Louisville Law Profes: sor Ralph Petrilli agrees. "ldentfying invitro fertilization as valid doesn't mean the legislature il\tended for all other methods to be invalid. Petrilli thinks the case involved a traditional statutory interpretation problem and was given the . proper interpretation. ''The statute refers to a child. It doesn't say anything about a contract to carry a child." Professor Robert Stenger believes laws governing surrogate parenting should be enacted, but is not surprised at the legislative reluctance. "We've had artificial insemination for years and there aren't any laws on the books. The courts will have to fashion interpreta-tions." . Stenger is uncomfortable with that notion. "What's unfortunate is that you're going to have to litigate without a law," he said. "This leaves it up to the court. If the judge is willing to listen to broad equitable arguments, fine. But if he's very mechanical, then you have a problem." Stenger is also concerned with the interests of the child. "Typically, in these arrangements, everyone is represented but the child. In adoption, you must go through agencies which take the child's best interests into account." He feels one option for the legislature would be to require a court or agency to analyze the arrangements in a manner similar to adoption. A contr.a.ct between the surrogat mother and husband of the infertile couple is signed prior to implantation of the sperm. Justice Leibson conceded such a contract did not violate Kentucky law as a document, but noted the agreement was voidable. "Should she (the surrogate) elect to do so, the situation would be no different than had she never entered into the procedure. She would be in the same position vis-a-vis the child and the biological father as any other mother with a child born out of wedlock," said the judge. Brophy has been heavily involved in drafting surrogate agreements. She noted in a 1982 article for the Journal Of Family Law that such contracts act as a "gentleman's agreement" and seek to define the duties of the parties and avoid potential conflicts. Stenger finds most provisions of surrogate agreements unenforceable under contract law. He believes equitable estoppel would be an effective defense in some actions for breach of the surrogate contract, but not when the mother refused to terminate parental rights. "The statute (K.R.S. 199.500(5)) prohibits a valid consent to adoption to be made by the mother less than five days after the birth." Petrilli thinks the birth of a mentally or physically handicapped child would present an interesting dilemma. "Would the father still have to assume custody of the child if he didn't want it? And would he have to support it or would that burden be placed on the mother?'' Although other states have been confronted with a mother's refusal to ter- (continued on page 5) April, 1986 Faculty Members Replace ABC Hearing Officers by Joel D. Zakem Members of the U of L School of Law faculty will serve as Hearing Officers for Jefferson County Alcoholic Beverage Control (ABC) hearings, according to a recent announcement by County Judge Executive Harvey I. Sloane. Professors Leslie W. Abramson, Renardo L. Hicks, Richard H. Nowka, Albert T. Quick and Steven R. Smith, and Assistant to the Dean Kent Lollis have volunteered to participate in the new program, according to Professor Nowka, who is coordinating the program for U of L. The idea of using law professors as Hearing Officers grew out of conversations between Nowka and Jefferson County Safety Director Ron Pregliasco. · ''The county was very interested in the idea for several reasons," said Nowka. One important· reason was economics. In the past, Jefferson County had hired hearing officers to administer the proceedings. Using law school faculty to conduct the hearings on a volunteer basis will save the county approximately $8,000 a year, according to Judge Sloane. "This is just one example of how the county plans to seek creative solutions to the coming budget crunch," said the judge. Professor Nowka explained that the faculty had agreed to act in this capacity on a voluntary basis because "it is part of the job of a professor to perform community service.'' Money was not the only reason that the county approved this plan. Professor Nowka pointed out that the county felt that Law School faculty would be impartial, since they would not be tied to any outside interests. Nowka also said that the hearing procedures are already in place. To familiarize themselves with these proceedings, the faculty members have gone through a training session and have studied the ABC regulations. The hearings are informal, but both the county and the license holder are given the opportunity to present their arguments. "The main thing is that both sides have the opportunity to be heard," said Nowka. Once all testimony is given, the hearing officer decides whether a violation has taken place. If the officer rules against the licensee, various sanctions against the business can be given. These can range from a temporary suspension to revocation of the liquor license. The hearing officer, however, does not have any power to impose criminal sanctions on the license holder. If the licensee disagrees with the hearing officer's decision, it can be appeal~ ed to the state ABC in Frankfort. Law School Dean Barbara Lewis applauded the program, saying it "further emphasizes the commitment of the law school to public service in the community.'' She also said that the program allows the faculty to have an opportunity for practical application of their legal skills. Richard H. Nowka U Of L's Divestment Plans Are Ahead Of Schedule by David Fuller The University of Louisville Foundation, Inc.'s plan to totally divest itself within two years of all funds invested in any U.S. corporations or banks doing business in the Republic of South Africa is proceeding well ahead of schedule, according to David Baker of the University's general counsel staff. All of the Foundation's South African holdings, valued last spring at around $8.5 million, have been sold since the plan's announcement last October 29, except for "four or five blue-chip stocks, such as IBM." These stocks will likely be held until near the plan's deadline of November 1, 1987, on the advice of Mercer-Meidinger, Inc., consultant to the University of Louisville's Finance Committee. Baker emphasized that the retention of the most valuable stocks complies with the Foundation's resolution to implement the policy "as soon as possible, but in an orderly and prudent manner, in keeping with the Board's fiduciary responsibilities.'' Rising moral indignation of South Africa's apartheid system moved the Foundation to adopt the total divestment plan, since the Foundation's fiduciary responsibility to get the best return on investments is coupled with a sense of "social accountability," according to Harry Jones, chairman of the University Foundation Board. The Foundation's initial plan, announced last spring, was one of partial divestment - only those stocks whose companies were not Sullivan Principles signatories would be sold. Only 94 of the 286 U.S. companies that do business in South Africa were signatories as of October, 1985; the University of Louisville's investment in such companies was about $1.5 million. (The Sullivan Principles, named after Philadelphia minister and General Motors director Rev. Leon Sullivan, set civil rights guidelines and specify working conditions for South Africa's black employees.) The arousal of the Foundation's "social accountability'' came from growing national and University and community resentment of the U.S.'s toleration of the apartheid system. Columbia University's divestment campaign lasted fourteen years before achieving success. Other states with universities resolving to totally divest include Maine, Arizona, Ohio and Michigan, according to the American Committee on Africa. The southern region has been predictably slow to divest: the University of Louisville resolution, twenty-third nationally, was the first from a major southern university outside Miami (Florida), a school not truly "southern," and Howard University, a predominately black school in Washington, D.C. Deborah Romero, a member of the steering committee of the Progressive Students League (PSL), which, along with the Students Against Apartheid, led the local divestment campaign, said adoption by the Foundation of divestment plans required serious demonstrations and pleadings to illustrate the intensity of emotions towards apartheid in the University and local community. Romero said the PSL pressed the Faun-dation to adopt a plan of total divestment as soon as possible as "a chance to make a statement to other universities in the region, as part of the University of Louisville's 'Quest For Excellence'." Since the University of Louisville's October announcement, the University of Kentucky has resolved to partially divest itself of South African holdings. Ms. Romero added that the PSL established a monitoring committee ''to make sure they're doing what they say they are," and is continuing to bring attention to Africa related problems. Surrogate Parenting (continued from page 4) minate her rights in regard to the child, this situation has not occured in Kentucky. Parrott believes it is unlikely. "Most of them (surrogate mothers) enjoy the pregnancy experience, but don't want the responsibility of rearing another child," she said. She noted a number of women first consider becoming a surrogate when friends have had difficulty conceiving. However, SPA does not allow mothers to carry the children of friends. "There is too much room for conflict," stated Parrott. Organized resistance to surrogate parenthood has not been a problem for either of the two Louisville agencies. Executive director of the Louisville chapter of Right To !--ife, Margie Montgomery, stated the organization had not taken a position on the issue. Professor Petrilli believes the surrogate procedure has attracted little attention due to the small number performed. "Thousands of abortions are performed every year, but only a few hundred surrogates are performed," he said. 6 Louisville Law Examiner April, 1986 Professor Warns Ends Distinguished Teaching Career \ \ -\ Carl "Pop" Warns by Karl Truman The closing of this semester will bring another retirement to the University of Louisville Law School. Professor Carl "Pop" Warns will be leaving the school for the less stressful life of arbitration and retirement. Warns is probably best known for his expertise in the field of labor law. After graduating from the University of Louisville Law School in 1938, he began working in the industrial relations department of Seagrams Distilleries. He stayed with Seagrams until1941, when he was named acting director of industrial relations for the company. That job only lasted one month, however, since Warns was drafted. After World War II, Warns attended Harvard, receiving his Ll.M. in 1947. His teaching career began at the University of Miami, but Warns soon returned to the University of Louisville. It was here that Warns began his arbitration practice. Warns was recalled to the service during the Korean Conflict. After returning to Louisville in 1953, he continued to arbitrate on a local basis. These arbitrations eventually became national in scope. Warns has arbitrated for such companies as Goodyear Tire and Rubber, Continental Airlines and Western Airlines. In 1971, Warns began arbitrating for the U.S. Postal Service. He was given the southwest region, which encompassed eleven states and contains over 100,000 postal employees. These arbitrations, and the time they required him to spend in the field, caused Warns to consider leaving the teaching profession. He submitted his resignation in 1968, only to be talked out of leaving by then university president, Dr. Stricker. Instead of resigning, Warns was allowed to take an indefinite leave. He returned periodically to work on special assignments for the school. One such assignment was the setting up of a grievance procedure for faculty, staff and students. Warns returned to teaching five years ago, after open heart surgery forced him to resign his arbitration practice. He has 3ince signed on with the TV A as an arbitrator, and says he is under pressure from others to return to arbitration. Warns has received many honors in his career in labor arbitration. He was the first academic to be offered a position with the National Labor Relations Board (NLRB). He was forced to turn down the appointment, however, when the university would not grant him a five-year leave of absence. Former Kentucky Governor Bert Combs offered Warns the position of State Director of Industrial Relations, but this job was also rejected. Warns said he felt that he would have encountered difficulty in picking up his arbitration practice when his term was up. Labor relations is not the only area in which Warns has earned a great deal of recognition. He had many prestigious assignments during his military career. Warns entered the service as an enlisted man in 1941, but was commissioned by the Air Force eighteen months later. After receiving his commission, he spent some time as an instructor for officer's candidate school. He was also an instructor at the Aviation Cadet Center in San Antonio. In 1945, Warns began interviewing returning American P.O.W.s for reassignment and rehabilitation. During this time, he interviewed a group of American nurses who were captured by the J apanese on Bataan. He said he found the last experience particularly interesting. Warns was later placed in charge of office personnel at the Redistribution Center in San Antonio, where he aided individuals in returning to civilian life. He was discharged from the service in 1946, but he kept his reserve commission. This led to his being recalled during the Korean Conflict. During the Korean War, Warns served in the Strategic Air Command (SAC) as part of the staff of General Curtis LeMay. As Staff Operations Officer, he dealt with much classified in-formation and several times travelled overseas to inspect SAC bases. Warns has always enjoyed flying, and his military career &ave him the opportunity to work closely with planes and the people who piloted them. Warns decided, however, to resign his commission, but he stayed active in flying, and still flies with a pilot accompanying him. After retirement, Warns plans toresume a reasonable amount of professional arbitration. He says he finds arbitration much less stressful than teaching. Warns also said that his arbitration practice takes him to Florida quite a bit, and he would "like to get in as much beach time as possible.'' Because of his heart condition, Warns must maintain a regular exercise program. Warns also hopes to continue his research and do some writing. This is one area Warns wishes would be stressed more among the faculty. ''To do an effective job,'' he said, ''a teacher must do scholarly research and expose the students to things they might not get on their own." Warns added that he feels Dean Lewis has done more to encourage scholarly research than any of the law school's previous· deans. Journal Hosts Conference (continued from page 1) participation "improves the education of the student, makes the students better lawyers, and makes a body of legal work.'' She emphasized that one of the major roles of law reviews is "to provide a forum for new ideas." L. Stanley Chauvin, of Barnett & Nagia, speaking from a practitioners point ·of view, said that law reviews are able to "pioneer new areas of the law and provide fresh approaches to the law. The most important right is the right to be outrageous," he said, emphasizing the need to provide fresh approaches to the law. Chauvin also felt that law reviews operate to unify the legal profession "lawyers don't have a common thread, law review articles help provide it," he said. He said he basically uses law reviews for the information they provide. He said they are more authoritative and because they aren't written from an adversary point of view, they are more rationale. "Practitioner's get more benefit from law reviews than they'll admit," he said. Elliott H. Levitas, former U.S. Congressman from Georgia, was the last speaker on the panel discussion. His task was to examine the role of law reviews from a legislator's point of view. Levitas said that he felt there was not enough material in law reviews on legislation. "There is too much focus on the judicial process, and not enough on the legislative process." He said he would like to see more articles that "review the rule-making, legislative, history and conclude by making proposals." One area Levi tis said needs to be researched is hazardous waste sites, the regulation~--of which is currently being examined in Congress. "At present, there is no research material on hazardous waste sites," he said. Levitas said that he prefers to see articles with lots of scholarly research and analysis of precedent. "Opinions are less important, it's more important to have a bedrock of authority.'' Chief Justice Stephens then added that he would like to see some law review articles dealing with sovereign immunity and municipal immunity, which he said are being closely examined by the courts of Kentucky. Chauvin added that he would like to see more articles dealing with the judicial history of statutes, with particularly close attention being paid to dissenting opinions which he said are very important. Other programs at the Conference dealt with the editorial function and process, author relations, symposium issues, and writing style. Chuck Adams and Greg Cinnamon, of the University of Louisville's Journal Of Family Law, have been organizing and preparing for the Conference since last summer. The proposal to hold the Conference was submitted by the Journal Of Family Law two years ago. Many local law firms contributed to help make it possible for the Journal to host the Conference. Law reviews are important not only to the legal writer working on research, but for the students who participate in them. As Chauvin said, "Law reviews are instilling. This is the last shot to put concepts on the front burner.'' (related story on page 7) April, 1986 Louisville Law Examiner Anderson Attacks Attorneys At Journal Conference Lawyers Are Rated (continued from page 3) Overall Rating by Gender for Attorneys Graduating After 1975 Judges' Rating Male Female Total by Tom Ransdell "We are abusing the legal system. Two-thirds of the world's lawyers are suing people in the United States, and if the legal profession doesn't do something about it, the people will," Jack Anderson told the guests and delegates to the National Conference of Law Reviews thirty-second annual convention. Anderson, who was awarded the Pulitzer Prize for national journalism in 1972, was introduced by Greg Cinnamon as "an unguided missile, with multiple warheads likely to strike anywhere." True to the introduction, he proceeded to launch an all-out attack against the legal profession. Anderson's column appears in over I ,000 newspapers, and he is best known for his investigative reporting and sensational exposes. Anderson has published detailed articles, including names, on subjects such as a drug ring· on Capitol Hill and the existence and leadership of the Mafia. "While other reporters cover Washington, we try to uncover it," An-· derson said. · While speaking on the topic of over-zealous litigation, Anderson told of how journalists in this country had been threatened by subversives, shot by gangsters, and thrown in jail by crooked politicians, all without being intimidated from telling the truth. "Lawyers have accomplished what the gangsters and the subversives and the crooked politicians could not do," he said. "[News editors] are refusing to print stories because we cannot afford the legal bills anymore." "A free people would be better off with a newspaper and no government than to have a government without a newspaper," Anderson said. In one of the many personal lawsuits he recounted, Anderson told of how he had been sued by a woman on a meritless claim. The woman was willing to settle for $500, but if Anderson had wanted to prove his innocence and clear his name, the legal bill would have been $5,000. "This is extortion. This is immoral. This is obscene," said Anderson. "I've never lost a lawsuit," said Anderson. "Why should I have to pay more for lawyers than I do for reporters? If a jury says I'm innocent, then why should I be punished?" Anderson proposed a solution to the legal dilemma he sees confronting our country. "All we have to do is require the loser to pay the legal fees of the winner. And if the plaintiff can't pay my legal fees, let his attorney pay them." Anderson also came out in favor of federal liability insurance and against the Graham-Rudman Act, which he said delegates to a computer budgetary decisions that only Congress should make. Anderson was particularly skeptical of deficit reducing measures which he said are usually followed by a rise in taxes. "In the thirty-nine years since I've been in Washington, the median family income has increased seven and one-half times," he said. "During that same period, taxes have increased 246 times." Anderson, who received a standing ovation from the NC LR delegates who attended the Conference, began his journalism career in 1946 with Stars And Stripes. In 1947, he joined columnist Drew Pearson's staff and took over the column when Pearson died in 1969. Excellent 5 3 8 2.711fo 6.5% 3.5% Above Average 43 8 51 23.5% 17.4% 22.3% Average 81 18 88 44.3% 39.1% 43.2% Below Average 28 7 35 15.3% 15.2% 15.3% Poor 26 10 36 14.2% 21.7% 15.711fo Missing Values 183 46 229 79.9% 20.1% 15.7% Howtobuya · · • Pernormance You can use the American Express® Card <:'> -;(") 0 0 0 !"" c ?$ , c:n -< "" ...... ~ '"' :c ~ to buy concert tickets for your favorite • tio~~~f.~ ~~ea~lte~~ ~~~e:~ ~0:/f~~ra~a~~ little things, and the big-ticket items, that you 'll want during college. How to get the Card before you graduate. Because we believe college is the first sign of success, wf!.ve made it easier for you to get the American Express Card. Graduating students can get the Card as soon as they accept a SIO ,000 career-oriented job. If you're not graduating yet, you can apply for a special sponsored Card. Look for student applications on campus. Or calll-800-THE-CARD, and tell them you want a student application. The American Express Card. Don't leave school without it ~M 7 8 Louisville Law Examiner Professor Teitelbaum Leaves Library For Full-Time Teaching Position by Bill Wilson Next fall , University of Louisville Law Librarian Gene Teitelbaum will leave his post and assume a new role as a full-time professor. He will teach Administrative Law in the fall and Constitutional Law II next spring. Both classes will be in the evening division. Teitelbaum gave several reasons for the move. "I want to use the law library," he said. "Librarian is more than a full-time job, so I really haven't had a chance." He also expressed a desire to learn new substantive law and become more involved with the students. "Maybe I'm a ham, but I enjoy being in front of a class," he said. Teitelbaum is a graduate of the Rutgers School of Law and was associate librarian at Duke before coming to Louisville in 1975. Eleven years ago, the law library was housed in over-crowded facilities and supported by an inadequate budget. "One of the reasons the budget was so small was because there was no room for additional books," Teitelbaum recalled. He feels the increase in space has been the biggest change since 1975. "For books we have enough physical space for another 20 years. There are also more study areas and conference rooms for student use." Another area of improvement has been the budget. "There is an adequate amount to maintain our collection and provide good basic services." Teitelbaum feels that despite the progress, areas of improvement remain. He cited a book security system to reduce theft and further increases in the budget as examples. "I would like to see the library acquire the official reporters for all 50 states. New areas grow for which we need money. Five years ago, AIDS was unheard of. Today there are three or four books covering the legal aspects of it." Teitelbaum believes Lexis and Westlaw will assume a greater role in the law library of the future. "Students today are more mechanically inclined. They are better able to make use of the technology.'' He thinks the same will hold true for practicing attorneys. "Books are expensive to buy and maintain. For someone in rural Kentucky, a computer in the office is certainly more convenient than traveling to Louisville to research a case." But Teitelbaum disagrees with the idea that books will become obsolete. "There will always be a need for books. Computers don't analyze. For that you still will need to look at a treatise or other commentary.'' A committee to search for a new librarian has been formed with Teitelbaum as chairman. Other faculty members on the committee are Professors Merritt, Blackburn and Read. The list of candidates has been narrowed to four or five finalists, with each finalist scheduled to visit the campus during the month of April. lnuisville Law Examiner School of Law University of Louisville Louisville, Kentucky 40292 Gene Teitelbaum Non-Profit Organization U.S. POSTAGE PAID Permit No. 769 Louisville, KY John M. Harlan Louis D. Brand~is ' ·~· .. ~ Louisville\ ~· Law. Examiner Volume 11 Race And Jury Selection Page 1 Judges Rate Local Attorneys Page 3 Surrogate Parenting Upheld Page 4 More Libel Night Photos Page 4 April, 1986 Number 4 Photo by Nancy Morgan |
Subject |
University of Louisville. School of law University of Louisville--Students University of Louisville--Alumni and alumnae University of Louisville--Faculty University of Louisville--Employees Law students Law & legal affairs Law and legislation--Kentucky Law and legislation--United States Law libraries Legal education Libraries |
Location Depicted |
Louisville (Ky.) Jefferson County (Ky.) |
Date Original | 1986-04 |
Object Type | Newspapers |
Source | Various-sized print newspapers published by students of the University of Louisville School of Law. The print edition may be found in the University of Louisville Law Library or the University of Louisville Archives and Records Center. |
Collection | Law Library Collection |
Collection Website | http://digital.library.louisville.edu/cdm/landingpage/collection/law |
Digital Publisher | Law Library of the Louis D. Brandeis School of Law, University of Louisville |
Format | application/pdf |
Ordering Information | The publications digitized in this collection are the property of the University of Louisville School of Law and are not to be republished for commercial profit. To inquire about reproductions, permissions, or for additional information, email lawlibrary@louisville.edu. |
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