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