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Louisville Law Examiner Serving the University of Louisville School of Law Community Volume 13, Number 2 Louisville, Kentucky- March, 1988 Circulation 5400 Dean Lewis: It's a Man's World by Tom Lukins Dean Barbara Lewis began by rattling off the statistics: "Women haved moved into the law in dramatic numbers. Today, 50lhO!o of the first year class are women, and women make up 47% of our total enrollment. We have seven women faculty. Ten law deans in the United States are women. Last year the Louisville Bar Association had its first woman president." Still, said Lewis, it's a man's world," if we consider the question in terms of who has power. The legislatures are still predominately male, and men control the majority of wealth. Whatever you want to do in law, you must deal with the fact that it is still very much a maledominated society.'' Lewis' remarks came in a presentation at the Law School entitled "Women in Law School: It's Still a Man's World- Or Is It?" Her talk was sponsored by the Women's Law Caucus. Lewis contrasted today's near-even sexual mix with that of the U of L School of Law she attended in the early sixties. At tha time she was the only woman student, and there were no women faculty. Nor were women welcome in the legal fraternities. Lewis said that she was invited to join the "Law Wives", but, not being one, she declined. Although Lewis graduated first in the 1962 class, the prospects for women law graduates at the time were dim. Even then, she said, "I knew I wanted to teach. But I was told by the Dean that there was no place for women in teaching. He was right; that was an accurate statement at the time." The opportunites for women in private practice were just as limited. Firms openly said that would not even interview women. The commonly held view was that women do not use their law degrees, Lewis said. Even today, when a woman attorney becomes a professor, said Lewis, she can expect to be confronted with a double standard. "If you make a mistake, or if you're not top quality, it's never because you're human or you're having a bad day. It's because 'that woman can't teach.' And it's used as evidence that women as a group can't teach." In adminstration as well, Lewis said, the double standard persists. "A man and a woman may act the same way in a given situation, but the man will be considered to be aggressive, playing hardball, and be admired for it, while the woman will simply be considered nasty.'' "Consequently, when I have to be angry and confrontational to get something done, many people will tell you that I'm the biggest bitch walking. Well, that's their problem. I may win their grudging respect, if not their undying love and affection.'' To illustrate the stereotyping done by both men and women, Lewis commented on two questions asked her Louisville Law Forum The Private Lives Of Candidates By Michael R. Campbell "Is it any of our business that Pat Robertson's first child was conceived out of wedlock?" This question was posed by Jean Becker, political reporter for USA Today, at a Louisville Law Forum panel discussion on political candidates' right to privacy. Joining Becker as panelists were Harvey Sloane, Jefferson County Judge/ Executive; Allan Steinberg, Jefferson Community College professor and counselor and a recent candidate for the state House of Representatives; and attorney Rebecca Westerfield, now a Jefferson Circuit Judge. Westerfield began by giving a brief outline of the legal issues involved. She said that candidates do not relinquish their constitutional right to privacy from unwarranted governmental intrusions, nor do they give up any statutory rights protecting all citizens. In addition to constitutional and statutory protection, said Westerfield, there exists a common law right to privacy in most states. But even where the right is recognized, she said, it is greatly diminished with respect to political candidates. "Candidates certainly have some right to privacy; they don't invite people to come up and ring their doorbells at all hours of the night or wiretap their phone conversations," said Westerfield. "However, anything which is a matter of public record may be disclosed ." ''A candidate is always the focus of legitimate public interest, she continued. Therefore they are by their very essence newsworthy and everything about their lives is newsworthy. The press clearly (Continued on Page 3) when she first came to U of L as Dean. One was, "Can you be tough, professional and feminine?" "What a stupid question!", said Lewis. Second, in response to the question: "What do you bring to the job as a woman?", Lewis replied, "Not a damn thing. I bring many characteristics as a person." Lewis did note, however, that there are many women she respects who disagree with this view. Lewis admitted that she has made career decisions on a "sexist" basis. For example, when she had to decide what to teach, she chose taxation, "because it is recognized by men as being rigorous and demanding. I did not want people to think that women somehow could not teach taxation." Still, when she interviewed for a teaching position at the University of Cincinnati, they insisted on discussing whether she would teach family law, "an obvious selection for a woman with an L.L.M. in taxation," joked Lewis. Despite what Lewis called ''increasingly subtle'' discrimination, she counselled the women in the audience to persevere. ''A lot of the decisions you make will be affected by the fact that it's a man's world, but never, never let that deter you from doing what you really want to do." Lewis listed three rules for dealing with the "man's world": "Be very professional, be very professional and be very professional.'' "And being professional does not mean trying to act like a man," Lewis said. "You do not have to be 'one of the boys'. For example I've been told that basketball is played in Louisville. I hate sports, and I refuse to discuss sports in order to, for example, make contacts.'' Nor does being professional mean trying to dress like a man. "There is no rule that you must wear a blue business suit to be properly dressed for the business world," said Lewis. Lewis said that she encourages women attorneys to be involved in both professional organizations and in women's groups. "As female lawyers, we have advantages. We're bright and we've had opportunities. This means that we have obligations to others." Lewis identified four issues of particular importance to women: "Domestic violence, rape, child care and poverty, because the majority of those in poverty are women and children." In response to a question, Lewis said that the provision of child care within the law school has been discussed but found not to be feasible. "We do not have the budget to meet state child care regulations," said Lewis. "However, concern for students who are also parents was one reason we became more flexible in the scheduling of day and night classes.'' Is it a man's world? "Yes," said • Lewis, "but it's my world and yours. How you live in a man's world is a matter of your own style and your own choice. I've seen great changes in twenty-five years, and you will see even greater changes." Photo by Todd Bolus From left to right: Allan Steinberg, Harvey Sloane, Rebecca Westerfield and Jean Becker. Page2 Louisville Law Examiner March, 1988 LOUISVILLE LAW EXAMINER EDITORIAL BOARD Tom Lukins Editor-in-Chief Gayle Bodner Bill Crowe Associate Editors Todd Bolus Photography Editor Brian Clare Managing Editor Joe French Night Associate Editor Rosemary Lane Brandeis Brief Editor Randy Strause Business Manager STAFF Shealia Murphy-Owens Pat Kidd Dennis Howard II Chris Sanders Todd Seaver Michael R. Campbell Laura Frazier Theresa Brown Professor LAURENCE W. KNOWLES, Consultant The Louisville Law Examiner (ISSN 0890-8605) 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. 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) 588-6399. Letter To The Editor: With a ''PILF'', You Can Afford To Work For the Public Interest To the Editor: Canon Two of the Code of Professional Responsibility states that we have a duty to make legal counsel available. Since the rights of individuals and institutions in our society depends on effective representation before government bodies, the availability of that representation is a measure of liberty in America. However, 7511/o of the legal needs of indigents go unmet by present legal aid and pro bono efforts, according to a noted legal statistician. The middle class, struggling businesses and community groups are also underrepresented. In the past few years, studentorganized Public Interest Law Foundations (PILF's) have grown rapidly to meet this need. A PILF can take many forms, but basically it raises money and serves as a local clearinghouse for the placement of law students in public interest organizations. Some of these positions also provide for loan forgiveness - the payment of student loans while working for the public interest. If the idea of starting any new law school organization, much less one that requires fundraising, scares you - it shouldn't. Last year, 35 law school chapters of the National Association for Public Interest Law (NAPIL) raised half a million dollars to fund 250 summer and one-year graduate fellowships. If you would like to take the initiative to start a PILF at the University of Louisville, there are materials available at the Placement Office and at the Law Examiner office. Also, contact NAPIL headquarters, (202) 546-4918, for further information. Kentucky is ripe for an organization of this type to take root. The rest of the nation's law schools challenge you to help make the legal system meaningful for all. David Funke, JD. 9735 Timberbrook Drive Louisville, Ky. 40223 Come Back, Dan Second-year student Dan White was injured by a hit-and-run driver while crossing Third Street on February 11. Our best wishes to Dan for a swift and complete recovery, and a quick return to classes. OOPS We goofed. Professor Bennett's first name is Geoffrey, despite anything in our last issue to the contrary. What I Learned In Law School By Todd Bolus, G.S. Although most people refuse to believe it, law school is sometimes an educational experience. Take, for example, your relatives. Remember that uncle who used to speak to you at family affairs only out of courtesy. He now calls at least four times a week, trying to suck legal advice from you despite your feeble protests of "I don't have a license to practice law." In the process you learn of your dear uncle's lousy financial situation and even lousier marriage. He tells you enough about his sleazy business deals to make you wonder who in the Commonwealth Attorney's office was paid to head off the indictment. You wonder what the P.R. committee of the bar assocation will think of your mere relationship with the man, much less your actual knowledge of his dealings. This clear-thinking attitude leads you to resolve never to represent family members. Great. That's Lesson Number 1. Another terrific opportunity to learn an important lesson is to talk with your non-lawyer friends. After fifteen beers, eight shots of tequila and an assorted . range of chemicals, they will be certain their legal acumen is far greater than yours. Your paltry knowledge will be overshadowed by the sage wisdom of Judges Wapner and Keene, Kentucky law be damned . For three straight hours you will argue the mechanics of a DUI prosecution, seeking in vain to explain the effects of a statutory presumption . It goes something like this: Non-lawyer: Man, I know this dude who got busted for DUI and he only blew a . 9*! That just ain't right! Law student: Well, .1 is just a statutory presumption of intoxication . Cops have discretion at lower levels. Did thi s guy make him mad? Non-lawyer: Nah, he's a mellow dude. Besides, he'd already done two valiums and he was really laid back. Law student: Well, that explains it. He ... Non-lawyer (interrupting): Man, you can't be right. I know this guy who blew a .8*, and the cop said he couldn't run him in. * note that non-lawyers also don't know where to place decimal points. That's lesson number 2: Drinking and talking to non-lawyers don't mix. Just say no. Though they doubt your legal knowledge, your "friends" are eager to bestow on you a license you don't have. They invariably introduce you to their acquaintences as "my friend the attorney." As this is usually a great icebreaker with the opposite sex, you tend not to mind. You do mind when you are introduced as an attorney to thieves, thugs, dope dealers, pimps and marketing executives. A desireable response is to give a sickly smile, look for telltale bulges which indicate the presence of a weapon (or, in the case of a marketing executive, an industrialsized business card case), and extend a quivering, sweaty palm. You should have no memory of this meeting. You weren't there. You don't know the face or the name. If you were handed a business card, you drop it into the giveaway jar at a downtown lunch counter. You pledge your soul to the devil in return for the sudden demise of the individual you just met and, in true lawyer fashion, you ask God to save you from the devil as long as you never again tell anyone that you plan to be an attorney. If you break this promise, upon graduation you can plan to be set on by hordes of golddiggers, sought out by clients who would rather stab you than pay you, or, if you become a prosecutor, reminded that "I smoked a joint with you, dude. You were pretty cool, especially when you rolled around naked in my old lady's flower bed. Now, what kind of deal are you gonna give me?" Lesson Number 3: Never admit that you're a law student. Take heed, boys and girsl! It's a rough world out there, and the only ones who make it are those who are able to 1) actually bill for time spent on legal matters, and 2) deny past indiscretions. (Nah, man, couldn't be me. I was going to law school, stayed clean.) The rest of us may build a lot of good will. But good will, if it pays at all, makes a partial payment the day of trial and begs a discount of the rest. Think about it. Ciao. CALL FOR VOLUNTEERS The Louisville Bar Association and the University of Louisville School of Law is preparing a trial practice program for attorneys. This program will help teach trial tactics by having all participants perform a mock trial. The organizers of this program need people to perform in the capacity of witnesses and jurors. All volunteers will be given complete instructions on what they are expected to do and absolutely no knowledge of the law, trial tactics, or previous experience is necessary. This program will be conducted on April 21, 22, 23, 1988. Volunteers may participate during any part or all of that time. For further information and sign up please contact: RONALD W. EADES PROFESSOR OF LAW SCHOOL OF LAW UNIVERSITY OF LOUISVILLE LOUISVILLE, KY. 40292 PHONE - 588-5563 March, 1911 Louisvil~ Law Exa.illft' Privacy Rights of Candidates (Continued from Page 1) has a legal right to disclose information about the private lives of candidates and public officials." Apart from the legal issues, there remain questions about the media's duty to inform the public and the issue of ethical restraint. Becker defended the media's coverage of political figures . She said that the press has not only the right but also the responsibility to the public to reveal as much about the candidates as it can. In fact, said Becker, "My job is to report about their private lives; I do not write about how they feel about the issues." Health, finance and criminal background were cited by Judge/Executive Sloane as the only three areas of legitimate public ·interest in the private lives of candidates. As for health reporting, Sloane said that it should be limited to the . question of whether the candidate is physically capable of performing the duties of the office. "Whether the candidate had a venereal disease that was cured fifteen years ago - I'm not sure that is a subject that the candidate has to reveal," said Sloane. In a reference to the recent attempt by the New York Times to bring about the disclosure of all the presidential candidates' medical records, Sloane said, "As a physician I think it is totally inappropriate to have the medical records of the candidates disclosed, because there is so much opportunity for misinformation." Sloane said that he was particularly alarmed that the Times' request for disclosure extended to the medical records of the candidates' families. "The press has some responsibility, moral if not legal," said Sloane. Steinberg said that the fear of personal intrusions brought about by the new brand of political reporting has prevented some qualified individuals from entering the political arena. He requested that the press think about what effect a particular characteristic would have on the candidate's ability to perform his or her duties before going to press. Becker offered this advice to candidates: "Reveal everything on your own. For God's sake don't let the press uncover it, because you'll be slaughtered.'' Master of Laws Boston University School of Law IL.M. Degree in Banking Law Studies A unique graduate program offering separate, multidisciplinary courses of study in American Banking Law Studies and in International Banking Law Studies. Taught by faculty of the Boston University School of Law, eminent banking law attorneys and management experts, these innovative programs provide an exceptional blend of intellectual and practical education at one of the nation's most prestigious law schools. Covering the full range of advanced banking law subjects, the curriculum also includes courses specially developed to introduce lawyers to the economic and managerial aspects of the domestic and international financial services industry. This comprehensive LL.M. program offers a singular educational opportunity for lawyers who wish to practice in these dynamic, fast growing areas of specialization. Applications are now being accepted for full or part-time enrollment in September 1988. For a catalog containing detailed information and application forms, write: Graduate Program in Banking Law Studies Morin Center for Banking Law Studies Boston University School of Law 765 Commonwealth Avenue Boston, Massachusetts 02215 or call: 617/353-3023 ACLU Role in Bork Defeat Criticised by Chris Sanders The politically liberal national leadership of the American Civil Liberties Union has distorted the organization's unique purpose, says Samuel H. Fritschner. Fritschner, a member of the board of the Kentucky Civil Liberties Union, was the guest speaker at a meeting of the ACLU's U of L stuoent chapter. "The ACLU should defend the rights of everybody,'' said the 1981 U of L law graduate, an associate in the Louisville firm of Taustine, Post, Sotsky, Berman, Fineman and Kohn. "If we don't do it, no one else will." Fritschner said that in opposing the nomination of Judge Robert Bork to the U.S. Supreme Court, the ACLU took an "argumentative" stance against a candidate for only the second time in its history, the first being its opposition to the nomination of now-Chief Justice William Rehnquist. "I am distressed that the national organization took a partisan position, because the ACLU, as. an informational organization, should only take an advocacy stance in court on individual cases," Fritschner said. Fritschner noted that both the national and state organizations have represented right-wing groups and individuals. "It is important that we protect the freedom of speech of everyone, in order to have, as Justice Douglas said, an open 'marketplace of ideas,' " Fritschner said. Fritschner said that he has represented a local police officer, unsuspected of any crime, who is being pursued by an antiKu Klux Klan organization wanting access to his KKK membership list. The case has gone to the Sixth Circuit Court of Appeals, but Fritschner withdrew when the KCLU voted it "too hot to handle." The case also became cost-prohibitive. Fritschner said that the KCLU budget is $66,000 a year, which pays for little more than the salaries of two staff . members and office space. "The national organization has plenty of money,'' said Fritschner. "Join the KCLU. We need you." U of L Chapter President Ruby Fenton agreed. "There's work to be done while you're in law school. The KCLU has some fairly narrow research projects designed for a student's schedule,'' she said. .------------------------------------· I ~ Remember - Db :rollin wednesday is 11 Spin-The-Wheel Night ~ 8_!l•!•m Buy One 2100 S. Preston 635-6747 • Deli Sandwiches • Home Cooking Get One FREE Buy any sandwich and get one of equal value FREE. - After 6 p.m. only - • Dancing • Live Entertainment One Coupon Per VIsit Expires May 30, 1988 ------------------------------------~ Page4 Louisville Law Examiner March, 1988 Brandeis Brief: Justice Louis Dembitz Brandeis: His Louisville Connection, By Gene Teitelbaum Professor Gene Teitelbaum served as Head Law Librarian at the University of Louisville School of Law from January 1975 to June 1986. His teaching assignment is now in the areas of Administrative and Constitutional Law. He worked in the Rutgers University Law Library, practised law, both civil and criminal, in New York City, and was Associate Law Librarian at Duke University before coming to the University of Louisville. In conjunction with his current project, "Justice Brandeis and His Law Clerks, ,, Professor Teitelbaum has compiled a 128 page . bibliography of writings and other materials on the Justice that was just published in book form by the Fred B. Rothman Company. Louis D. Brandeis had his roots in Louisville, Kentucky. He was born on November 13, 1856, a short distance from the law school. He left Louisville at the age of 16 to attend high school in Germany, never again to live in Louisville. However, he remained a loyal supporter of the City, the University of Louisville, and the law school. It is fitting that Brandeis is buried on the portico of the Law School building, juxtaposed to his wife of fifty years, Alice Goldmark Brandeis. Brandeis had four successful careers: he was a skilled practising attorney; he was a leader in the late nineteenth century and early twentieth century American reform movement for the social and economic betterment of the working class; he was the most visible and famous American Jew and the leader of the American Zionist movement for many years; and Brandeis served as an Associate Justice of the Supreme Court of the United States. His gifts to the University and the Law School took many forms While Brandeis amassed a fortune through his law practice, during his lifetime he donated almost one million, five hundred thousand dollars to various charities and individuals. His gifts to the University and the law school took several forms. Brandeis gave funds to both the Law School and the University Library. He contributed money to purchase for the Law Library various sets of federal materials. For example, the set of United States Reports shelved on the first floor contains book plates indicating that the volumes were purchased in honor of the Kentuckians who served as District Judges of the United States. Eleven Kentuckians have served as Supreme Court justices, a large number considering the small population of the Commonwealth. While on the Supreme Court, Brandeis caused the Law Library to become a depository for the briefs and records of all cases filed with the High Court. Only forty copies of each brief are filed with the Court. Thus we are one of few academic law libraries in the nation to receive this valuable source of legal history and information. Our collection begins with the October 1924 term. In addition, a unique source of information, Brandeis' personal papers before he joined the Supreme Court in 1916, are in the Law Library. (The post 1916 papers are stored in 'the Harvard Law School Library.) They are kept in a special furnished room on the second floor. To better preserve them, the contents have been placed in acid free folders and boxes. To make the Brandeis Papers more accessible, in the late 1970s the University Archives received a grant from the National Historical Publications and Records Commission to film them on 144 reels of microfilm . Thus thru this miracle of modern technology, scholars may use the Brandeis Papers without traveling to the· University. The interest in Brandeis' life and career has not lessened. Every year or so a new full length biography of the Justice is published. Regularly, articles appear in law reviews and other scholarly periodicals investigating specific aspects of Brandeis' career. At the age of sixty, when many people would be thinking about slowing down, retiring from law practice, reading the books put aside over the years, and enjoying one's grandchildren (The Brandeis' had two daughters), Brandeis embarked on a new career - being an. Associate Justice of the Supreme Court. Previously, he had served as an adviser to President Woodrow Wilson, who nominated him in 1916 to fill the vacancy on the High Court caused by the death of Joseph R. Lamar. Brandeis was never a practising Jew, yet his religion was one, if not the main cause for the opposition to his appointment. The controversy over·his "fitness to be a justice" raged both in the United States Senate and in the newspapers and periodicals of the day. Finally, after almost five months of acrimonious quarreling, the Senate confirmed his appointment by the vote of 47 to 22, with 29 senators abstaining. In comparison, the recent Bork and Ginsburg nomination battles seem like tea parties. In January 1966, the Law School's Student Bar Association held a convocation honoring the fifieth anniversary of Brandeis' appointment to the Supreme Court. Professor Louis Jaffe, of Harvard University Law School and a former Brandeis law clerk, was the main speaker. Brandeis served twenty-three years as Justice, retiring in 1939. Many people erroneously believe he was succeeded by Felix Frankfurter. In fact, William 0. Douglas was Brandeis' successor. Brandeis and Frankfurter sat together on the Supreme Court for only a few weeks. The two Brandeis judicial opinions we are most familiar with are his concurrence (which reads like a dissent) in Whitney v. California, 274 U.S. 357,372 (1927), a free speech case, and the majority opinion in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) . The names of the Brandeis law clerks read like a roster of legal hall of famers Brandeis' role in the development of the concept of recent law school graduates serving as clerks to Supreme Court justices, and the men who served as his law clerks, has fascinated me for years. Twenty-one men served as his law clerks. Two men, Dean Acheson and William Sutherland, each served two terms, because of World War I. All were selected to be Brandeis' law clerks by Felix Frankfurter, then a professor of law at Harvard. All twenty-one had several factors in commoh; all were white, male, and a graduate of Harvard Law School. All but one man had his bachelor of laws degree from Harvard University. The other man (Yale University graduate) received his master of laws degree from Harvard. They were of different religions, and from different geographic regions. Yet above all else, the clerks were "the best and brightest" of their class at Harvard Law School. Until Brandeis came to Washington, Supreme Court justices did not have law clerks to assist them. Brandeis took the idea from the late nineteenth century Supreme Court Justice Horace Gray, who paid the salary of a law clerk out of his own pocket. The concept was not accepted by the other justices. Brandeis used the position and salary of the secretary assigned to him by the Court and instead hired a law school graduate as his clerk. The early clerks listed themselves in their biographical sketches as "Secretary to Justice Brandeis." Other justices began to use law clerks. Finally the concept was accepted by the Court, and the position was made permanent and funded by Congress. The names of the twenty-one Brandeis law clerks read like a roster of legal hall of famers. Two were federal judges, Calvert Magruder, and Henry Friendly. Ten were law school teachers, Henry Hart, Harry Shulman, Nathaniel Nathanson, David Reisman (THE LONELY CROWD), James Landis, William Rice, Louis Jaffe, Paul Freund, William Hurst, and William McCurdy. Nine were practising attorneys, Thomas Austern, Graham Claytor, Robert Page, Warren Ege, William Sutherland, Samuel Maslon, Irving Goldsmith, Adrian Fisher, and Dean Acheson. Most men also did a fair share of public service on the national level. The Brandeis-clerk relationship was similar to a partnership with Brandeis the senior partner, obviously. Brandeis got along better with some clerks than others. Only one or two men were not I succ,essful as his clerk. Of the twenty- s one former clerks, Dean Acheson probably is the most famous and most Justice Louis D. I ,aminer March, 1988 March, 1988 eis: His Louisville Connection, His Clerks ... Jaffe, of Harvard University Law School and a former Brandeis law clerk, was the main speaker. Brandeis served twenty-three years as Justice, retiring in 1939. Many people erroneously believe he was succeeded by Felix Frankfurter. In fact, William 0. Douglas was Brandeis' successor. Brandeis and Frankfurter sat together on the Supreme Court for only a few weeks. The two Brandeis judicial opinions we are most familiar with are his concurrence (which reads like a dissent) in Whitney v. California, 274 U.S. 357,372 (1927), a free speech case, and the majority opinion in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). The names of the Brandeis law clerks read like a roster of legal hall of famers Brandeis' role in the development of the concept of recent law school graduates serving as clerks to Supreme Court justices, and the men who served as his law clerks, has fascinated me for years. Twenty-one men served as his law clerks. Two men, Dean Acheson and William Sutherland, each served two terms, because of World War I. All were selected to be Brandeis' law clerks by Felix Frankfurter, then a professor of law at Harvard. All twenty-one had several factors in common; all were white, male, and a graduate of Harvard Law School. All but one man had his bachelor of laws degree from Harvard University. The other man (Yale University graduate) received his master of laws degree from Harvard. They were of different religions, and from different geographic regions. Yet above all else, the clerks were "the best and brightest" of their class at Harvard Law School. Until Brandeis came to Washington, Supreme Court justices did not have law clerks to assist them. Brandeis took the idea from the late nineteenth century Supreme Court Justice Horace Gray, who paid the salary of a law clerk out of his own pocket. The concept was not accepted by the other justices. Brandeis used the position and salary of the secretary assigned to him by the Court and instead hired a law school graduate as his clerk . The early clerks listed themselves in their biographical sketches as "Secretary to Justice Brandeis." Other justices began to use law clerks. Finally the concept was accepted by the Court, and the position was made permanent and funded by Congress. The names of the twenty-one Brandeis law clerks read like a roster of legal hall of famers. Two were federal judges, Calvert Magruder, and Henry Friendly. Ten were law school teachers, Henry Hart, Harry Shulman, Nathaniel Nathanson, David Reisman (THE LONELY CROWD), James Landis, William Rice, Louis Jaffe, Paul Freund, William Hurst, and William McCurdy. Nine were practising attorneys, Thomas Austern, Graham Claytor, Robert Page, Warren Ege, William Sutherland, Samuel Maslon, Irving Goldsmith, Adrian Fisher, and Dean Acheson. Most men also did a fair share of public service on the national level. The Brandeis-clerk relationship was similar to a partnership with Brandeis the senior partner, obviously. Brandeis got along better with some clerks than others. Only one or two men were not succ,essful as his clerk. Of the twentyone former clerks, Dean Acheson probably is the most famous and most celebrated one. He was described by another Brandeis law clerk as "Son of an Episcopal Bishop, his mother was from a wealthy whiskey family. Thoroughly versed in the Bible, talented beyond redemption, handsome, urbane, beneath the urbanity was sheer granite." After clerking for Brandeis, Acheson joined the distinguished Washington D.C. law firm of Covington & Burling. He served in varous positions in the federal government throughout his legal career, most notably Secretary of State from 1949 to 1953 for President Harry Truman. In his book MORNING AND NOON, Acheson furnishes us with a marvelous description of his two years as Brandeis' law clerk. He sums up Brandeis' work in these words: "Justice Brandeis' standard for our work was perfection as a norm, to be bettered on special occasions. Hard work he took for granted ... " What a wonderful standard to follow in our lives. Louisville Law Examiner PageS ... And His Mind By William Read Professor Read retired last year as Professor of Law at the University of Louisville School of Law. This article was delivered as a speech at the 1987 Brandeis Society Alumni Dinner. The most interesting thing about a lawyer is her or his mind. And the mind of a lawyer as unique as Louis Brandeis is very interesting. Melvin Urofsky describes it in the title of his book as "A Mind of One Piece." He said it this way because it was a mind held together by its passion for facts and results, often at the expense of general principles; by its extraordinary diligence and clarity in mastering factual detail; by vigorous self-confidence in its conclusions, buoyed by natural optimism and cheerfulness; and by its life-long focus on the goal of bettering ordinary people. A good place to start an account of this mind is Prague in 1848- then a city of high culture, but unstable politics, especially for Jews. A group of well-todo and well educated Jewish families sent one of the best and brightest of their young men, Adolph Brandeis, father-tobe of Louis, to America to find farm land where they might settle. Adolph quickly figured out that farming in America would be very hard and very dull work, and that the grocery business made more sense. A group from Prague of about 25 came first to Cincinnati, then to Madison, Indiana, and finally to Louisville, where Louis was born in 1856. He had a warm and stimulating family life and got an education of sorts in Louisville. But it was not good enough to get him into the gymnasium in Vienna in 1872, when his father took the family to Europe for an extended stay. A year later he did manage to get into a school in Dresden, where he says that he learned to think. He discovered, in preparing an essay about something he knew nothing, that he could evolve ideas by reflecting on his material. Here we have the essential key to this mind: The gathering and mastering of facts, and then, but only then, drawing conclusions. And, as we will see, once conclusions were drawn they were likely to become crusades. His struggle in Dresden to educate himself seems to have worked. In 1875 The Brandeis mind thrived on the case method of learning law he was admitted to Havard Law School and was soon making grades that were still begin talked about by students there over 60 years later. He arrived at Harvard at just the right moment - shortly after Christopher Columbus Langdell discovered the case method. The Brandeis mind thrived on this way of learning law, which starts students with the facts of actual cases rather thari with legal rules. And he continued to attack legal problems by way of their facts as he progressed through his career: as an advocate for private clients, when he made his fortune; the early years of the century - before he went on the Supreme Court in 1916 - when he made his name as a reformer and as "the people's lawyer"; and 23 years he was a Supreme Court justice. Throughout, it was his practice to read and digest an abundance of material before reaching a conclusion. Max Lerner, writing in the Yale Law Journal in 1931 in commemoration of Brandeis' 75th birthday, compared the minds of Justices Holmes and Brandeis. Holmes had a philosopher's mind that liked to start from abstract principles. He spent his life seeking major premises to think from. In contrast, Brandeis said that it was only after he had found himself confronted with a specific set of facts and had thought his way through to a conclusion that he found that his conclusion happened to coincide with some "principle." Lerner suggests that for Brandeis principles were nine-tenths submerged preconceptions that cropped out only as approaches to contemporary issues. Among Brandeis' books that our library has inherited are several from the teens on using time and motion studies to reduce fatigue for industrial workers. From the markings in these books, Brandeis read them carefully. And you can see their appeal to his kind of mind: they are about facts that require detailed measurement and correlation; and they promise results that benefit large numbers of ordinary people, both employers and workers. I can picture Brandeis trying, unsuccessfully, to induce Holmes to take books like these home to New England for summer reading. A sense of the difference between the Holmes and Brandeis minds can be gained from the opinions in the 1918 case where Associated Press was trying to stop International News Service from copying, without attribution, news published in early editions of AP papers. Justice Pitney, for the majority, said that news is property and must by protected against piracy. Holmes concurred in the result, but on the basis of tort rather than property: he saw the INS conduct as deception, making it a kind of unfair competition. Brandeis dissented. While he agreed that INS had acted shabbily, he saw the case as presenting a regulatory question for Congress to investigate; and he believed the court should not "establish a new rule of law." Holmes worked from a general torts principle that he found in the common law. Brandeis wanted more facts. The Brandeis antipathy to generalizations is also apparent in his Erie decision, 20 years later, where he says that the Constitution does not empower the federal courts to make general federal common law. Both Holmes and Lerner refer to the Brandeis optimism and cheerfulness. In a letter to Harold Laski, Holmes speculates that it might have something to do with having a Jewish upbringing. Brandeis had a knack for facing up to obstacles and overcoming them. When he was in law school the trainer at the Harvard gym told him he was so frail An incident at his Dresden school illustrates both his cheerfulness and his individualism that unless he got some regular exercise he would be in big trouble. So, he began an exercise program that he followed up to shortly before he died at age 85. While at law school he also began having trouble with his eyes and his doctor told him to give up the law. This was asking too much. Instead he worked out a schedule that permitted him to do his reading and writing during the daylight hours. Stories are told from his years on the Court of law clerks pushing drafts of opinions under his door at six o'clock in the morning and watching them disappear as the Justice pulled them in from the other side of the door. Lerner speaks of how the influences on Brandeis of 19th century European romantic liberalism, inherited from his parents, mixed with the primitive Americanism of his childhood in semifrontier Kentucky to make him an individualist. One night returning to his room he war reprimanded for whistling. This made him furious - he saw the reprimand as an invasion of his individual rights. About 15 years later the scholarly work for which he is best known, the 1890 Harvard Law Review article on the right of privacy, starts with the assertion that the legal right to life includes the right to enjoy life and to be left alone. And he came to include the telephone among the enemies of privacy. In the late 1930s his law clerk received a telephone call in person from President Roosevelt asking to speak to the Justice. (Continued on Page 8) Paae6 Louisville Law ~alllhter March, 1988 Soviet Law, Soviet Reality A Student's View of the Soviet Union By Jimmy L. Hom Not with the mind is Russia comprehended, The common yardstick will deceive In guaging her: so singular her natureIn Russia you must just believe. - Fyodor Tyutchev (1866) Phil Rush, a fellow student from Golden Gate, and I arrived at Sheremetyevo-2 airport in Moscow on June 1 of this year. Off to the right of the runway was a beautiful grove of birch trees, the symbol of Russia for hundreds of years. Phil and I were part of a summer study program in the USSR sponsored by the University of San Diego, Institute of International and Comparative Law. Our itinerary took us from Moscow to Leningrad and then on to Poland. (In July, I returned to the Soviet Union for two more weeks to travel on my own.) Professor Henry Dahl, an expert on comparative law with a specialty in human rights, and Professor Chris Osakwe from Tulane University led our studies in East-West trade and Socialist law. Our group of 23 consisted mainly of students from law schools nationwide in addition to a few practicing attorneys and a journalist, each of whom paid $2,500 for an interesting way to earn 4 units of credit. This summer, the male-female ratio was about even. Last year, as a result of the Chernobyl accident, there were only three women in the program. The major effects of that nuclear accident have worn off, although one Russian woman told me that she had never seen Ukrainian apples so big before as they were this year! LAW AND LA WYERS IN SOVIET SOCIETY One of the first things that struck me about Soviet society was the minor role that lawyers play in governing the system. Although General Secretary Mikhail Gorbachev was trained as a lawyer, he is more the exception than the rule. Legal assistance is guaranteed in the Soviet constitution. Nevertheless, private litigation between citizens in the U.S.S.R. is fairly rare in most situations. I was reminded of this in the port city of Odessa on the Black Sea when I saw an old woman knocked down on the street by a trolleybus. As I watched, the driver rushed out and, instead of helping her, began yelling at her for "stupidly" walking in front of him. She picked herself up, dusted herself off, and then yelled out a few words in response that I didn't quite catch before she walked away. Contrast this with an incident in Oakland three years ago when a truck rear-ended an AC Transit bus. The six passengers got off the bus and were told to wait inside a nearby post office. When the police finally arrived and went inside the post office, they found eight people lying on the ground - all claiming to have been passengers injured in the accident. Phil and I visited Juris Consultazia No. 21 in Moscow, a law firm that boasts as its most famous client former Jewish dissident Anatoly Sharansky. Before Sharanky's 1978 trial for treason, his family was turned down by 20 to 30 advocates who would not take his case bacause Sharansky had refused to plead guilty. (Attorneys who work in law firms are called "advocates.") Unfortunately, the advocate who handled Sharansky's case declined to discuss it, citing client confidentiality. Inside Juris Consultatzia No. 21 was a large sign listing the fee schedule established by the government. The permissable fees charged clients are relatively low. For example, an oral consultation is typically one ruble (about $1.60) and drafting a complicated document costs six rubles ($9.60). A day of a criminal trial that lasts less than three days costs twenty rubles ($32.00); each subsequent day will earn an advocate twelve rubles ($19.20). Some legal services are provided free of charge, such as work involving workers' compensation or alimony. Although an advocate's salary is subject to a formal ceiling of 350 rubles ($560) a month, advocates routinely expect additional compensation (known as mikst) from clients beyond the official rates. As Ivan Fyodorovich, Honored Jurist of the Russian Soviet Federated Socialist Republic, described the workings of his office, Phil and 1 could not resist asking him if mikst was as common as American scholars of Soviet law claim it to be. "Absolutely not," answered Mr. Fyodorovich. "Anyone who took money under the table at this law firm would be fired." A month later I asked the same question of Anna, who had been practicing law m Odessa for eleven years, as we drove to pick up one of her clients for a meeting at the Ministry of Internal Affairs (equivalent to a police station). "Absolutely," she laughed. A SOVIET TRIAL In Leningrad, Joanne, an assistant district attorney from San Diego, and I attended a trial of an alcoholic on a petty offense at the People's District Court on Krasnoarmenskaya (Red Army) Street. As is common with many minor matters, the procurator (prosecutor) did not even take part in the trial. The questioning was conducted by the people's judge, who is elected by the citizens of the local district to the bench for a five-year term. Joining her on the three-judge panel were two lay judges call assessors, elected for 2 Y2 year terms and who theoretically have power equal to their professional counterpart in the courtroom. Traditionally, however, they defer to the people's judge. For the most part, the assessors in the trial sat quietly. The defendent had already pleaded guilty, but a guilty plea does not stop a criminal trial from taking place. A Soviet court is required to independently corroborate a defendant's guilt. Here, the defense attorney called two witnesses, including the defendant's weeping wife. In her closing argument, the advocate concluded by telling the court that her client was a good husband, a hard worker, and had stopped drinking. The three judges then adjourned to a back room to reach their decision. After waiting twenty minutes, Joanne and I left without ever finding out the court's verdict to catch a plane to Warsaw. SOVIET ENCOUNTERS Soviets and Americans have interesting conceptions about each other. American visitors believe that they will be followed everywhere they go by the KGB, the Soviet secret police. The only time I knew I was followed was after I helped an American tourist who wanted to exchange American T-shirts for Russian T-shirts with a Leningrad black-marketeer in front of the Gostiny Dvor department store. Since the blackmarketeer did not speak very good English, an essential requirement in his illegal profession, I conducted negotiations in Russian. This caught the interest of somone nearby who decided to follow us. We eventually lost him by ... ducking into the subway and then jumping on and off a couple of subway trains. Many Soviets, on the other hand, seem to think that the United States is rampant with crime. "Tell me, Jimmy," asked Vladmir, a Soviet Jew who had been thinking about emigrating for the last ten years, "do the Clint Eastwood and Chuck Norris movies represent real life in America?" Vladimir and his wife took part in an illegal video ring that acquired tapes of western movies, transcribed the dialogue into Russian, and then passed them around. Last year, the communist party newspaper Pravda reported that six people were sent to prison for showing "Rambo" and "Rocky IV," both of which Vladimir had seen and disliked. "No plot," he complained. There are over one hundred different nationalities in the Soviet Union. At the Alexander Nevsky Monastry in Leningrad, I struck up a conversation with a woman from Kazakhstan, located in Soviet Central Asia. She was curious about me because she and I shared similar Asian facial features. I was curious about her because a few days earlier, a Lithuanian friend had gotten me past a passport checkpoint at a radio tower /revolving restaurant in Vilnius by telling the guard that I was her friend from Kazakhstan. (I had forgotten my American passport at my hotel.) I asked the woman in Leningrad what life was like in Kazakhstan. "Good," she said, "very good." I then expected her to ask what life was like in the United States. Instead, she continued, "and I understand that you have a lot of unemployment in America and that blacks don't like it there." Article 36 of the Soviet Constitution outlaws racism in the U.S.S.R. At least until Gorbachev's glastnost campaign, racism did not officially exist. Nevertheless, there is probably a lot more racism in the U.S.S.R. than the Soviets will admit and probably a lot less racism that they think exists in the United States. Generally, the only blacks in the Soviet Union are students from thirdworld and "socialist brother" countries, along with an occasional tourist. I met Steven, who was black, in Kiev at the "Monument Commemorating the Reunification of Ukrainians with Russia." He was learning how to use his new Russian Zenit camera and had already ruined two rolls of his East German film that day. He had just finished the first year of study in the Russian language,as well as his introductory political courses (MarxismLeninism, dialectic materialism, history of the Soviet communist party) and was preparing to go back to Chad for part of the summer. Next year, he would begin five years of study at Kiev State University. GLASTNOST AND PERESTROIKA This summer was an exciting time to be in the Soviet Union. Every official we met spoke of glastnost and perestroika, the buzzwords of Gorbachev's campaign to reform the Soviet political and economic system. Although some of the Soviet citizens I spoke with felt that the reforms were overrated and had not yet affected the average person in any substantial way, the beginnings of change could still be seen. For example, at the Institute of State and Law of the U.S.S.R. Academy of Sciences in Moscow, a leading legal think-tank, the legal scholars openly discussed with us some of the proposed revisions to the 30-year old Soviet criminal code. All of this took place five months before the Soviet press agency, Tass, officially announced in early November that the criminal code was being rewritten. FAREWELL Most of us found in the Soviet Union what we expected to find. Those who expected to find corruption were able to meet black-marketeers willing to show them the seamier side of the Soviet system. Those who wanted to find night life were able to locate tourist-filled discotheques. For me, I expected to find a beautiful country populated wtih a wondrous people. I found it. Jimmy L. Hom is a student at Golden Gate University Law School in San Francisco. March, 1988 Louisville Law Examiner Page7 co~in~ Election Sign-ups For The 1988-89 soon· Law Examiner Editorial Board The American Express• Card gets an outstanding welcome virtually an}Where you shop, whether it's for a leather jacket or a leather-bound classic. Whether you're bound for a bookstore or a beach in Bermuda. So during college and after, it's the perfect way to pay for just about everything you'll want. How to get the card now. College is the first sign of success. And because we believe in your potential, we've made it easier to get the American Express Card right now. Whether you're a freshman, senior or grad student, look into our new automatic approval offers. For details, pick up an application on campus. Or calll-800-TIIE-CARD and ask for a student application. The American Express Carel. ® Don't Leave School Without It~ PageS Louisville Law Examiner The Mind Of Brandeis (Continued from Page 5) His clerk dutifully told the President that the Justice does not use the telephone. The President took this in good grace and asked the clerk to arrange to have the Justice come to see him. Lerner describes Brandeis as a "terrifying opponent to encounter." He inspired terror by his preparation and grasp of the facts, his fervor and self confidence, and his sureness that he was right - qualities that led Harold Lasky to write to Holmes that he saw Brandeis as more of a prophet than a judge. These strengths as an advocate made many powerful people fear and dislike him - and to oppose his appointment to the Court in 1916. Four years earlier he had suffered one of his few disappointments: the failure of President Wilson to name him attorney general in reward for master-minding Wilson's 1912 presidential campaign. It was shortly after this let down that he affiliated himself with Zionism - some said to give himself a political base. His relationship with Zionism was a stormy one. Brandeis saw himself as an American, and he saw a Jewish state as simply an option for those who might choose it. This was not enough for the European Zionist leaders. For much the same reasons that Brandeis lacked interest in philosophy and general principles, he lacked interest in religion. His concern was the here and now and how it could be made better. In 1914, when he accepted the chairmanship of the American Zionist Organization, he said: "The Jewish people has something which should be saved for the world .... It is our duty to pursue that method of saving which most promises success ." As an unhypenated American, Brandeis was convinced that our greatest national resource is the undeveloped talents of our ordinary people. And his mind was dedicated to developing that resource. Products of this dedication were his interest in the Louisville law school and the things he did to make it better: getting us on the list to receive . Supreme Court briefs, persuading the Harlan family to give us some of the first Justice Harlan's papers, leaving us a substantial part of his own papers. And his instructions about his burial at our law school reveal much about his mind. He was pragmatist. He thought his remains would do the most good if they were at a place where they could remind law students, and law teachers, I..ouisville Law Examiner School of Law University of I..ouisville l..ouisville, Kentucky 40292 March, 1988 of him and inspire them to work hard - the way he did. In conclusion I offer a little story I believe to be true: When his former law clerks - who included such people as Dean Acheson, Paul Fruend, David Riesman, and Henry Friendly - were planning a pilgrimage to visit him on his 80th birthday, he let the word go out that, instead of a visit, he would rather get a letter from each of them telling him what public service they had done recently. John M. Harlan Louis D. Brandtis ' ·~ . . Louisville~----- Law Examiner Volume 13 Dean Lewis on Women in Law Page 1 Candidates' Right to Privacy Page 1 Insights on Brandeis Page 4 An American Law Student in Russia Page 6 March, 1988 Number 2 T 1 1.·1 ' ~~ {j Photo by Todd Bolus
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Title | Louisville Law Examiner 13.2, March 1988 |
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 13, Number 2 Louisville, Kentucky- March, 1988 Circulation 5400 Dean Lewis: It's a Man's World by Tom Lukins Dean Barbara Lewis began by rattling off the statistics: "Women haved moved into the law in dramatic numbers. Today, 50lhO!o of the first year class are women, and women make up 47% of our total enrollment. We have seven women faculty. Ten law deans in the United States are women. Last year the Louisville Bar Association had its first woman president." Still, said Lewis, it's a man's world," if we consider the question in terms of who has power. The legislatures are still predominately male, and men control the majority of wealth. Whatever you want to do in law, you must deal with the fact that it is still very much a maledominated society.'' Lewis' remarks came in a presentation at the Law School entitled "Women in Law School: It's Still a Man's World- Or Is It?" Her talk was sponsored by the Women's Law Caucus. Lewis contrasted today's near-even sexual mix with that of the U of L School of Law she attended in the early sixties. At tha time she was the only woman student, and there were no women faculty. Nor were women welcome in the legal fraternities. Lewis said that she was invited to join the "Law Wives", but, not being one, she declined. Although Lewis graduated first in the 1962 class, the prospects for women law graduates at the time were dim. Even then, she said, "I knew I wanted to teach. But I was told by the Dean that there was no place for women in teaching. He was right; that was an accurate statement at the time." The opportunites for women in private practice were just as limited. Firms openly said that would not even interview women. The commonly held view was that women do not use their law degrees, Lewis said. Even today, when a woman attorney becomes a professor, said Lewis, she can expect to be confronted with a double standard. "If you make a mistake, or if you're not top quality, it's never because you're human or you're having a bad day. It's because 'that woman can't teach.' And it's used as evidence that women as a group can't teach." In adminstration as well, Lewis said, the double standard persists. "A man and a woman may act the same way in a given situation, but the man will be considered to be aggressive, playing hardball, and be admired for it, while the woman will simply be considered nasty.'' "Consequently, when I have to be angry and confrontational to get something done, many people will tell you that I'm the biggest bitch walking. Well, that's their problem. I may win their grudging respect, if not their undying love and affection.'' To illustrate the stereotyping done by both men and women, Lewis commented on two questions asked her Louisville Law Forum The Private Lives Of Candidates By Michael R. Campbell "Is it any of our business that Pat Robertson's first child was conceived out of wedlock?" This question was posed by Jean Becker, political reporter for USA Today, at a Louisville Law Forum panel discussion on political candidates' right to privacy. Joining Becker as panelists were Harvey Sloane, Jefferson County Judge/ Executive; Allan Steinberg, Jefferson Community College professor and counselor and a recent candidate for the state House of Representatives; and attorney Rebecca Westerfield, now a Jefferson Circuit Judge. Westerfield began by giving a brief outline of the legal issues involved. She said that candidates do not relinquish their constitutional right to privacy from unwarranted governmental intrusions, nor do they give up any statutory rights protecting all citizens. In addition to constitutional and statutory protection, said Westerfield, there exists a common law right to privacy in most states. But even where the right is recognized, she said, it is greatly diminished with respect to political candidates. "Candidates certainly have some right to privacy; they don't invite people to come up and ring their doorbells at all hours of the night or wiretap their phone conversations," said Westerfield. "However, anything which is a matter of public record may be disclosed ." ''A candidate is always the focus of legitimate public interest, she continued. Therefore they are by their very essence newsworthy and everything about their lives is newsworthy. The press clearly (Continued on Page 3) when she first came to U of L as Dean. One was, "Can you be tough, professional and feminine?" "What a stupid question!", said Lewis. Second, in response to the question: "What do you bring to the job as a woman?", Lewis replied, "Not a damn thing. I bring many characteristics as a person." Lewis did note, however, that there are many women she respects who disagree with this view. Lewis admitted that she has made career decisions on a "sexist" basis. For example, when she had to decide what to teach, she chose taxation, "because it is recognized by men as being rigorous and demanding. I did not want people to think that women somehow could not teach taxation." Still, when she interviewed for a teaching position at the University of Cincinnati, they insisted on discussing whether she would teach family law, "an obvious selection for a woman with an L.L.M. in taxation," joked Lewis. Despite what Lewis called ''increasingly subtle'' discrimination, she counselled the women in the audience to persevere. ''A lot of the decisions you make will be affected by the fact that it's a man's world, but never, never let that deter you from doing what you really want to do." Lewis listed three rules for dealing with the "man's world": "Be very professional, be very professional and be very professional.'' "And being professional does not mean trying to act like a man," Lewis said. "You do not have to be 'one of the boys'. For example I've been told that basketball is played in Louisville. I hate sports, and I refuse to discuss sports in order to, for example, make contacts.'' Nor does being professional mean trying to dress like a man. "There is no rule that you must wear a blue business suit to be properly dressed for the business world," said Lewis. Lewis said that she encourages women attorneys to be involved in both professional organizations and in women's groups. "As female lawyers, we have advantages. We're bright and we've had opportunities. This means that we have obligations to others." Lewis identified four issues of particular importance to women: "Domestic violence, rape, child care and poverty, because the majority of those in poverty are women and children." In response to a question, Lewis said that the provision of child care within the law school has been discussed but found not to be feasible. "We do not have the budget to meet state child care regulations," said Lewis. "However, concern for students who are also parents was one reason we became more flexible in the scheduling of day and night classes.'' Is it a man's world? "Yes," said • Lewis, "but it's my world and yours. How you live in a man's world is a matter of your own style and your own choice. I've seen great changes in twenty-five years, and you will see even greater changes." Photo by Todd Bolus From left to right: Allan Steinberg, Harvey Sloane, Rebecca Westerfield and Jean Becker. Page2 Louisville Law Examiner March, 1988 LOUISVILLE LAW EXAMINER EDITORIAL BOARD Tom Lukins Editor-in-Chief Gayle Bodner Bill Crowe Associate Editors Todd Bolus Photography Editor Brian Clare Managing Editor Joe French Night Associate Editor Rosemary Lane Brandeis Brief Editor Randy Strause Business Manager STAFF Shealia Murphy-Owens Pat Kidd Dennis Howard II Chris Sanders Todd Seaver Michael R. Campbell Laura Frazier Theresa Brown Professor LAURENCE W. KNOWLES, Consultant The Louisville Law Examiner (ISSN 0890-8605) 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. 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) 588-6399. Letter To The Editor: With a ''PILF'', You Can Afford To Work For the Public Interest To the Editor: Canon Two of the Code of Professional Responsibility states that we have a duty to make legal counsel available. Since the rights of individuals and institutions in our society depends on effective representation before government bodies, the availability of that representation is a measure of liberty in America. However, 7511/o of the legal needs of indigents go unmet by present legal aid and pro bono efforts, according to a noted legal statistician. The middle class, struggling businesses and community groups are also underrepresented. In the past few years, studentorganized Public Interest Law Foundations (PILF's) have grown rapidly to meet this need. A PILF can take many forms, but basically it raises money and serves as a local clearinghouse for the placement of law students in public interest organizations. Some of these positions also provide for loan forgiveness - the payment of student loans while working for the public interest. If the idea of starting any new law school organization, much less one that requires fundraising, scares you - it shouldn't. Last year, 35 law school chapters of the National Association for Public Interest Law (NAPIL) raised half a million dollars to fund 250 summer and one-year graduate fellowships. If you would like to take the initiative to start a PILF at the University of Louisville, there are materials available at the Placement Office and at the Law Examiner office. Also, contact NAPIL headquarters, (202) 546-4918, for further information. Kentucky is ripe for an organization of this type to take root. The rest of the nation's law schools challenge you to help make the legal system meaningful for all. David Funke, JD. 9735 Timberbrook Drive Louisville, Ky. 40223 Come Back, Dan Second-year student Dan White was injured by a hit-and-run driver while crossing Third Street on February 11. Our best wishes to Dan for a swift and complete recovery, and a quick return to classes. OOPS We goofed. Professor Bennett's first name is Geoffrey, despite anything in our last issue to the contrary. What I Learned In Law School By Todd Bolus, G.S. Although most people refuse to believe it, law school is sometimes an educational experience. Take, for example, your relatives. Remember that uncle who used to speak to you at family affairs only out of courtesy. He now calls at least four times a week, trying to suck legal advice from you despite your feeble protests of "I don't have a license to practice law." In the process you learn of your dear uncle's lousy financial situation and even lousier marriage. He tells you enough about his sleazy business deals to make you wonder who in the Commonwealth Attorney's office was paid to head off the indictment. You wonder what the P.R. committee of the bar assocation will think of your mere relationship with the man, much less your actual knowledge of his dealings. This clear-thinking attitude leads you to resolve never to represent family members. Great. That's Lesson Number 1. Another terrific opportunity to learn an important lesson is to talk with your non-lawyer friends. After fifteen beers, eight shots of tequila and an assorted . range of chemicals, they will be certain their legal acumen is far greater than yours. Your paltry knowledge will be overshadowed by the sage wisdom of Judges Wapner and Keene, Kentucky law be damned . For three straight hours you will argue the mechanics of a DUI prosecution, seeking in vain to explain the effects of a statutory presumption . It goes something like this: Non-lawyer: Man, I know this dude who got busted for DUI and he only blew a . 9*! That just ain't right! Law student: Well, .1 is just a statutory presumption of intoxication . Cops have discretion at lower levels. Did thi s guy make him mad? Non-lawyer: Nah, he's a mellow dude. Besides, he'd already done two valiums and he was really laid back. Law student: Well, that explains it. He ... Non-lawyer (interrupting): Man, you can't be right. I know this guy who blew a .8*, and the cop said he couldn't run him in. * note that non-lawyers also don't know where to place decimal points. That's lesson number 2: Drinking and talking to non-lawyers don't mix. Just say no. Though they doubt your legal knowledge, your "friends" are eager to bestow on you a license you don't have. They invariably introduce you to their acquaintences as "my friend the attorney." As this is usually a great icebreaker with the opposite sex, you tend not to mind. You do mind when you are introduced as an attorney to thieves, thugs, dope dealers, pimps and marketing executives. A desireable response is to give a sickly smile, look for telltale bulges which indicate the presence of a weapon (or, in the case of a marketing executive, an industrialsized business card case), and extend a quivering, sweaty palm. You should have no memory of this meeting. You weren't there. You don't know the face or the name. If you were handed a business card, you drop it into the giveaway jar at a downtown lunch counter. You pledge your soul to the devil in return for the sudden demise of the individual you just met and, in true lawyer fashion, you ask God to save you from the devil as long as you never again tell anyone that you plan to be an attorney. If you break this promise, upon graduation you can plan to be set on by hordes of golddiggers, sought out by clients who would rather stab you than pay you, or, if you become a prosecutor, reminded that "I smoked a joint with you, dude. You were pretty cool, especially when you rolled around naked in my old lady's flower bed. Now, what kind of deal are you gonna give me?" Lesson Number 3: Never admit that you're a law student. Take heed, boys and girsl! It's a rough world out there, and the only ones who make it are those who are able to 1) actually bill for time spent on legal matters, and 2) deny past indiscretions. (Nah, man, couldn't be me. I was going to law school, stayed clean.) The rest of us may build a lot of good will. But good will, if it pays at all, makes a partial payment the day of trial and begs a discount of the rest. Think about it. Ciao. CALL FOR VOLUNTEERS The Louisville Bar Association and the University of Louisville School of Law is preparing a trial practice program for attorneys. This program will help teach trial tactics by having all participants perform a mock trial. The organizers of this program need people to perform in the capacity of witnesses and jurors. All volunteers will be given complete instructions on what they are expected to do and absolutely no knowledge of the law, trial tactics, or previous experience is necessary. This program will be conducted on April 21, 22, 23, 1988. Volunteers may participate during any part or all of that time. For further information and sign up please contact: RONALD W. EADES PROFESSOR OF LAW SCHOOL OF LAW UNIVERSITY OF LOUISVILLE LOUISVILLE, KY. 40292 PHONE - 588-5563 March, 1911 Louisvil~ Law Exa.illft' Privacy Rights of Candidates (Continued from Page 1) has a legal right to disclose information about the private lives of candidates and public officials." Apart from the legal issues, there remain questions about the media's duty to inform the public and the issue of ethical restraint. Becker defended the media's coverage of political figures . She said that the press has not only the right but also the responsibility to the public to reveal as much about the candidates as it can. In fact, said Becker, "My job is to report about their private lives; I do not write about how they feel about the issues." Health, finance and criminal background were cited by Judge/Executive Sloane as the only three areas of legitimate public ·interest in the private lives of candidates. As for health reporting, Sloane said that it should be limited to the . question of whether the candidate is physically capable of performing the duties of the office. "Whether the candidate had a venereal disease that was cured fifteen years ago - I'm not sure that is a subject that the candidate has to reveal," said Sloane. In a reference to the recent attempt by the New York Times to bring about the disclosure of all the presidential candidates' medical records, Sloane said, "As a physician I think it is totally inappropriate to have the medical records of the candidates disclosed, because there is so much opportunity for misinformation." Sloane said that he was particularly alarmed that the Times' request for disclosure extended to the medical records of the candidates' families. "The press has some responsibility, moral if not legal," said Sloane. Steinberg said that the fear of personal intrusions brought about by the new brand of political reporting has prevented some qualified individuals from entering the political arena. He requested that the press think about what effect a particular characteristic would have on the candidate's ability to perform his or her duties before going to press. Becker offered this advice to candidates: "Reveal everything on your own. For God's sake don't let the press uncover it, because you'll be slaughtered.'' Master of Laws Boston University School of Law IL.M. Degree in Banking Law Studies A unique graduate program offering separate, multidisciplinary courses of study in American Banking Law Studies and in International Banking Law Studies. Taught by faculty of the Boston University School of Law, eminent banking law attorneys and management experts, these innovative programs provide an exceptional blend of intellectual and practical education at one of the nation's most prestigious law schools. Covering the full range of advanced banking law subjects, the curriculum also includes courses specially developed to introduce lawyers to the economic and managerial aspects of the domestic and international financial services industry. This comprehensive LL.M. program offers a singular educational opportunity for lawyers who wish to practice in these dynamic, fast growing areas of specialization. Applications are now being accepted for full or part-time enrollment in September 1988. For a catalog containing detailed information and application forms, write: Graduate Program in Banking Law Studies Morin Center for Banking Law Studies Boston University School of Law 765 Commonwealth Avenue Boston, Massachusetts 02215 or call: 617/353-3023 ACLU Role in Bork Defeat Criticised by Chris Sanders The politically liberal national leadership of the American Civil Liberties Union has distorted the organization's unique purpose, says Samuel H. Fritschner. Fritschner, a member of the board of the Kentucky Civil Liberties Union, was the guest speaker at a meeting of the ACLU's U of L stuoent chapter. "The ACLU should defend the rights of everybody,'' said the 1981 U of L law graduate, an associate in the Louisville firm of Taustine, Post, Sotsky, Berman, Fineman and Kohn. "If we don't do it, no one else will." Fritschner said that in opposing the nomination of Judge Robert Bork to the U.S. Supreme Court, the ACLU took an "argumentative" stance against a candidate for only the second time in its history, the first being its opposition to the nomination of now-Chief Justice William Rehnquist. "I am distressed that the national organization took a partisan position, because the ACLU, as. an informational organization, should only take an advocacy stance in court on individual cases," Fritschner said. Fritschner noted that both the national and state organizations have represented right-wing groups and individuals. "It is important that we protect the freedom of speech of everyone, in order to have, as Justice Douglas said, an open 'marketplace of ideas,' " Fritschner said. Fritschner said that he has represented a local police officer, unsuspected of any crime, who is being pursued by an antiKu Klux Klan organization wanting access to his KKK membership list. The case has gone to the Sixth Circuit Court of Appeals, but Fritschner withdrew when the KCLU voted it "too hot to handle." The case also became cost-prohibitive. Fritschner said that the KCLU budget is $66,000 a year, which pays for little more than the salaries of two staff . members and office space. "The national organization has plenty of money,'' said Fritschner. "Join the KCLU. We need you." U of L Chapter President Ruby Fenton agreed. "There's work to be done while you're in law school. The KCLU has some fairly narrow research projects designed for a student's schedule,'' she said. .------------------------------------· I ~ Remember - Db :rollin wednesday is 11 Spin-The-Wheel Night ~ 8_!l•!•m Buy One 2100 S. Preston 635-6747 • Deli Sandwiches • Home Cooking Get One FREE Buy any sandwich and get one of equal value FREE. - After 6 p.m. only - • Dancing • Live Entertainment One Coupon Per VIsit Expires May 30, 1988 ------------------------------------~ Page4 Louisville Law Examiner March, 1988 Brandeis Brief: Justice Louis Dembitz Brandeis: His Louisville Connection, By Gene Teitelbaum Professor Gene Teitelbaum served as Head Law Librarian at the University of Louisville School of Law from January 1975 to June 1986. His teaching assignment is now in the areas of Administrative and Constitutional Law. He worked in the Rutgers University Law Library, practised law, both civil and criminal, in New York City, and was Associate Law Librarian at Duke University before coming to the University of Louisville. In conjunction with his current project, "Justice Brandeis and His Law Clerks, ,, Professor Teitelbaum has compiled a 128 page . bibliography of writings and other materials on the Justice that was just published in book form by the Fred B. Rothman Company. Louis D. Brandeis had his roots in Louisville, Kentucky. He was born on November 13, 1856, a short distance from the law school. He left Louisville at the age of 16 to attend high school in Germany, never again to live in Louisville. However, he remained a loyal supporter of the City, the University of Louisville, and the law school. It is fitting that Brandeis is buried on the portico of the Law School building, juxtaposed to his wife of fifty years, Alice Goldmark Brandeis. Brandeis had four successful careers: he was a skilled practising attorney; he was a leader in the late nineteenth century and early twentieth century American reform movement for the social and economic betterment of the working class; he was the most visible and famous American Jew and the leader of the American Zionist movement for many years; and Brandeis served as an Associate Justice of the Supreme Court of the United States. His gifts to the University and the Law School took many forms While Brandeis amassed a fortune through his law practice, during his lifetime he donated almost one million, five hundred thousand dollars to various charities and individuals. His gifts to the University and the law school took several forms. Brandeis gave funds to both the Law School and the University Library. He contributed money to purchase for the Law Library various sets of federal materials. For example, the set of United States Reports shelved on the first floor contains book plates indicating that the volumes were purchased in honor of the Kentuckians who served as District Judges of the United States. Eleven Kentuckians have served as Supreme Court justices, a large number considering the small population of the Commonwealth. While on the Supreme Court, Brandeis caused the Law Library to become a depository for the briefs and records of all cases filed with the High Court. Only forty copies of each brief are filed with the Court. Thus we are one of few academic law libraries in the nation to receive this valuable source of legal history and information. Our collection begins with the October 1924 term. In addition, a unique source of information, Brandeis' personal papers before he joined the Supreme Court in 1916, are in the Law Library. (The post 1916 papers are stored in 'the Harvard Law School Library.) They are kept in a special furnished room on the second floor. To better preserve them, the contents have been placed in acid free folders and boxes. To make the Brandeis Papers more accessible, in the late 1970s the University Archives received a grant from the National Historical Publications and Records Commission to film them on 144 reels of microfilm . Thus thru this miracle of modern technology, scholars may use the Brandeis Papers without traveling to the· University. The interest in Brandeis' life and career has not lessened. Every year or so a new full length biography of the Justice is published. Regularly, articles appear in law reviews and other scholarly periodicals investigating specific aspects of Brandeis' career. At the age of sixty, when many people would be thinking about slowing down, retiring from law practice, reading the books put aside over the years, and enjoying one's grandchildren (The Brandeis' had two daughters), Brandeis embarked on a new career - being an. Associate Justice of the Supreme Court. Previously, he had served as an adviser to President Woodrow Wilson, who nominated him in 1916 to fill the vacancy on the High Court caused by the death of Joseph R. Lamar. Brandeis was never a practising Jew, yet his religion was one, if not the main cause for the opposition to his appointment. The controversy over·his "fitness to be a justice" raged both in the United States Senate and in the newspapers and periodicals of the day. Finally, after almost five months of acrimonious quarreling, the Senate confirmed his appointment by the vote of 47 to 22, with 29 senators abstaining. In comparison, the recent Bork and Ginsburg nomination battles seem like tea parties. In January 1966, the Law School's Student Bar Association held a convocation honoring the fifieth anniversary of Brandeis' appointment to the Supreme Court. Professor Louis Jaffe, of Harvard University Law School and a former Brandeis law clerk, was the main speaker. Brandeis served twenty-three years as Justice, retiring in 1939. Many people erroneously believe he was succeeded by Felix Frankfurter. In fact, William 0. Douglas was Brandeis' successor. Brandeis and Frankfurter sat together on the Supreme Court for only a few weeks. The two Brandeis judicial opinions we are most familiar with are his concurrence (which reads like a dissent) in Whitney v. California, 274 U.S. 357,372 (1927), a free speech case, and the majority opinion in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) . The names of the Brandeis law clerks read like a roster of legal hall of famers Brandeis' role in the development of the concept of recent law school graduates serving as clerks to Supreme Court justices, and the men who served as his law clerks, has fascinated me for years. Twenty-one men served as his law clerks. Two men, Dean Acheson and William Sutherland, each served two terms, because of World War I. All were selected to be Brandeis' law clerks by Felix Frankfurter, then a professor of law at Harvard. All twenty-one had several factors in commoh; all were white, male, and a graduate of Harvard Law School. All but one man had his bachelor of laws degree from Harvard University. The other man (Yale University graduate) received his master of laws degree from Harvard. They were of different religions, and from different geographic regions. Yet above all else, the clerks were "the best and brightest" of their class at Harvard Law School. Until Brandeis came to Washington, Supreme Court justices did not have law clerks to assist them. Brandeis took the idea from the late nineteenth century Supreme Court Justice Horace Gray, who paid the salary of a law clerk out of his own pocket. The concept was not accepted by the other justices. Brandeis used the position and salary of the secretary assigned to him by the Court and instead hired a law school graduate as his clerk. The early clerks listed themselves in their biographical sketches as "Secretary to Justice Brandeis." Other justices began to use law clerks. Finally the concept was accepted by the Court, and the position was made permanent and funded by Congress. The names of the twenty-one Brandeis law clerks read like a roster of legal hall of famers. Two were federal judges, Calvert Magruder, and Henry Friendly. Ten were law school teachers, Henry Hart, Harry Shulman, Nathaniel Nathanson, David Reisman (THE LONELY CROWD), James Landis, William Rice, Louis Jaffe, Paul Freund, William Hurst, and William McCurdy. Nine were practising attorneys, Thomas Austern, Graham Claytor, Robert Page, Warren Ege, William Sutherland, Samuel Maslon, Irving Goldsmith, Adrian Fisher, and Dean Acheson. Most men also did a fair share of public service on the national level. The Brandeis-clerk relationship was similar to a partnership with Brandeis the senior partner, obviously. Brandeis got along better with some clerks than others. Only one or two men were not I succ,essful as his clerk. Of the twenty- s one former clerks, Dean Acheson probably is the most famous and most Justice Louis D. I ,aminer March, 1988 March, 1988 eis: His Louisville Connection, His Clerks ... Jaffe, of Harvard University Law School and a former Brandeis law clerk, was the main speaker. Brandeis served twenty-three years as Justice, retiring in 1939. Many people erroneously believe he was succeeded by Felix Frankfurter. In fact, William 0. Douglas was Brandeis' successor. Brandeis and Frankfurter sat together on the Supreme Court for only a few weeks. The two Brandeis judicial opinions we are most familiar with are his concurrence (which reads like a dissent) in Whitney v. California, 274 U.S. 357,372 (1927), a free speech case, and the majority opinion in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). The names of the Brandeis law clerks read like a roster of legal hall of famers Brandeis' role in the development of the concept of recent law school graduates serving as clerks to Supreme Court justices, and the men who served as his law clerks, has fascinated me for years. Twenty-one men served as his law clerks. Two men, Dean Acheson and William Sutherland, each served two terms, because of World War I. All were selected to be Brandeis' law clerks by Felix Frankfurter, then a professor of law at Harvard. All twenty-one had several factors in common; all were white, male, and a graduate of Harvard Law School. All but one man had his bachelor of laws degree from Harvard University. The other man (Yale University graduate) received his master of laws degree from Harvard. They were of different religions, and from different geographic regions. Yet above all else, the clerks were "the best and brightest" of their class at Harvard Law School. Until Brandeis came to Washington, Supreme Court justices did not have law clerks to assist them. Brandeis took the idea from the late nineteenth century Supreme Court Justice Horace Gray, who paid the salary of a law clerk out of his own pocket. The concept was not accepted by the other justices. Brandeis used the position and salary of the secretary assigned to him by the Court and instead hired a law school graduate as his clerk . The early clerks listed themselves in their biographical sketches as "Secretary to Justice Brandeis." Other justices began to use law clerks. Finally the concept was accepted by the Court, and the position was made permanent and funded by Congress. The names of the twenty-one Brandeis law clerks read like a roster of legal hall of famers. Two were federal judges, Calvert Magruder, and Henry Friendly. Ten were law school teachers, Henry Hart, Harry Shulman, Nathaniel Nathanson, David Reisman (THE LONELY CROWD), James Landis, William Rice, Louis Jaffe, Paul Freund, William Hurst, and William McCurdy. Nine were practising attorneys, Thomas Austern, Graham Claytor, Robert Page, Warren Ege, William Sutherland, Samuel Maslon, Irving Goldsmith, Adrian Fisher, and Dean Acheson. Most men also did a fair share of public service on the national level. The Brandeis-clerk relationship was similar to a partnership with Brandeis the senior partner, obviously. Brandeis got along better with some clerks than others. Only one or two men were not succ,essful as his clerk. Of the twentyone former clerks, Dean Acheson probably is the most famous and most celebrated one. He was described by another Brandeis law clerk as "Son of an Episcopal Bishop, his mother was from a wealthy whiskey family. Thoroughly versed in the Bible, talented beyond redemption, handsome, urbane, beneath the urbanity was sheer granite." After clerking for Brandeis, Acheson joined the distinguished Washington D.C. law firm of Covington & Burling. He served in varous positions in the federal government throughout his legal career, most notably Secretary of State from 1949 to 1953 for President Harry Truman. In his book MORNING AND NOON, Acheson furnishes us with a marvelous description of his two years as Brandeis' law clerk. He sums up Brandeis' work in these words: "Justice Brandeis' standard for our work was perfection as a norm, to be bettered on special occasions. Hard work he took for granted ... " What a wonderful standard to follow in our lives. Louisville Law Examiner PageS ... And His Mind By William Read Professor Read retired last year as Professor of Law at the University of Louisville School of Law. This article was delivered as a speech at the 1987 Brandeis Society Alumni Dinner. The most interesting thing about a lawyer is her or his mind. And the mind of a lawyer as unique as Louis Brandeis is very interesting. Melvin Urofsky describes it in the title of his book as "A Mind of One Piece." He said it this way because it was a mind held together by its passion for facts and results, often at the expense of general principles; by its extraordinary diligence and clarity in mastering factual detail; by vigorous self-confidence in its conclusions, buoyed by natural optimism and cheerfulness; and by its life-long focus on the goal of bettering ordinary people. A good place to start an account of this mind is Prague in 1848- then a city of high culture, but unstable politics, especially for Jews. A group of well-todo and well educated Jewish families sent one of the best and brightest of their young men, Adolph Brandeis, father-tobe of Louis, to America to find farm land where they might settle. Adolph quickly figured out that farming in America would be very hard and very dull work, and that the grocery business made more sense. A group from Prague of about 25 came first to Cincinnati, then to Madison, Indiana, and finally to Louisville, where Louis was born in 1856. He had a warm and stimulating family life and got an education of sorts in Louisville. But it was not good enough to get him into the gymnasium in Vienna in 1872, when his father took the family to Europe for an extended stay. A year later he did manage to get into a school in Dresden, where he says that he learned to think. He discovered, in preparing an essay about something he knew nothing, that he could evolve ideas by reflecting on his material. Here we have the essential key to this mind: The gathering and mastering of facts, and then, but only then, drawing conclusions. And, as we will see, once conclusions were drawn they were likely to become crusades. His struggle in Dresden to educate himself seems to have worked. In 1875 The Brandeis mind thrived on the case method of learning law he was admitted to Havard Law School and was soon making grades that were still begin talked about by students there over 60 years later. He arrived at Harvard at just the right moment - shortly after Christopher Columbus Langdell discovered the case method. The Brandeis mind thrived on this way of learning law, which starts students with the facts of actual cases rather thari with legal rules. And he continued to attack legal problems by way of their facts as he progressed through his career: as an advocate for private clients, when he made his fortune; the early years of the century - before he went on the Supreme Court in 1916 - when he made his name as a reformer and as "the people's lawyer"; and 23 years he was a Supreme Court justice. Throughout, it was his practice to read and digest an abundance of material before reaching a conclusion. Max Lerner, writing in the Yale Law Journal in 1931 in commemoration of Brandeis' 75th birthday, compared the minds of Justices Holmes and Brandeis. Holmes had a philosopher's mind that liked to start from abstract principles. He spent his life seeking major premises to think from. In contrast, Brandeis said that it was only after he had found himself confronted with a specific set of facts and had thought his way through to a conclusion that he found that his conclusion happened to coincide with some "principle." Lerner suggests that for Brandeis principles were nine-tenths submerged preconceptions that cropped out only as approaches to contemporary issues. Among Brandeis' books that our library has inherited are several from the teens on using time and motion studies to reduce fatigue for industrial workers. From the markings in these books, Brandeis read them carefully. And you can see their appeal to his kind of mind: they are about facts that require detailed measurement and correlation; and they promise results that benefit large numbers of ordinary people, both employers and workers. I can picture Brandeis trying, unsuccessfully, to induce Holmes to take books like these home to New England for summer reading. A sense of the difference between the Holmes and Brandeis minds can be gained from the opinions in the 1918 case where Associated Press was trying to stop International News Service from copying, without attribution, news published in early editions of AP papers. Justice Pitney, for the majority, said that news is property and must by protected against piracy. Holmes concurred in the result, but on the basis of tort rather than property: he saw the INS conduct as deception, making it a kind of unfair competition. Brandeis dissented. While he agreed that INS had acted shabbily, he saw the case as presenting a regulatory question for Congress to investigate; and he believed the court should not "establish a new rule of law." Holmes worked from a general torts principle that he found in the common law. Brandeis wanted more facts. The Brandeis antipathy to generalizations is also apparent in his Erie decision, 20 years later, where he says that the Constitution does not empower the federal courts to make general federal common law. Both Holmes and Lerner refer to the Brandeis optimism and cheerfulness. In a letter to Harold Laski, Holmes speculates that it might have something to do with having a Jewish upbringing. Brandeis had a knack for facing up to obstacles and overcoming them. When he was in law school the trainer at the Harvard gym told him he was so frail An incident at his Dresden school illustrates both his cheerfulness and his individualism that unless he got some regular exercise he would be in big trouble. So, he began an exercise program that he followed up to shortly before he died at age 85. While at law school he also began having trouble with his eyes and his doctor told him to give up the law. This was asking too much. Instead he worked out a schedule that permitted him to do his reading and writing during the daylight hours. Stories are told from his years on the Court of law clerks pushing drafts of opinions under his door at six o'clock in the morning and watching them disappear as the Justice pulled them in from the other side of the door. Lerner speaks of how the influences on Brandeis of 19th century European romantic liberalism, inherited from his parents, mixed with the primitive Americanism of his childhood in semifrontier Kentucky to make him an individualist. One night returning to his room he war reprimanded for whistling. This made him furious - he saw the reprimand as an invasion of his individual rights. About 15 years later the scholarly work for which he is best known, the 1890 Harvard Law Review article on the right of privacy, starts with the assertion that the legal right to life includes the right to enjoy life and to be left alone. And he came to include the telephone among the enemies of privacy. In the late 1930s his law clerk received a telephone call in person from President Roosevelt asking to speak to the Justice. (Continued on Page 8) Paae6 Louisville Law ~alllhter March, 1988 Soviet Law, Soviet Reality A Student's View of the Soviet Union By Jimmy L. Hom Not with the mind is Russia comprehended, The common yardstick will deceive In guaging her: so singular her natureIn Russia you must just believe. - Fyodor Tyutchev (1866) Phil Rush, a fellow student from Golden Gate, and I arrived at Sheremetyevo-2 airport in Moscow on June 1 of this year. Off to the right of the runway was a beautiful grove of birch trees, the symbol of Russia for hundreds of years. Phil and I were part of a summer study program in the USSR sponsored by the University of San Diego, Institute of International and Comparative Law. Our itinerary took us from Moscow to Leningrad and then on to Poland. (In July, I returned to the Soviet Union for two more weeks to travel on my own.) Professor Henry Dahl, an expert on comparative law with a specialty in human rights, and Professor Chris Osakwe from Tulane University led our studies in East-West trade and Socialist law. Our group of 23 consisted mainly of students from law schools nationwide in addition to a few practicing attorneys and a journalist, each of whom paid $2,500 for an interesting way to earn 4 units of credit. This summer, the male-female ratio was about even. Last year, as a result of the Chernobyl accident, there were only three women in the program. The major effects of that nuclear accident have worn off, although one Russian woman told me that she had never seen Ukrainian apples so big before as they were this year! LAW AND LA WYERS IN SOVIET SOCIETY One of the first things that struck me about Soviet society was the minor role that lawyers play in governing the system. Although General Secretary Mikhail Gorbachev was trained as a lawyer, he is more the exception than the rule. Legal assistance is guaranteed in the Soviet constitution. Nevertheless, private litigation between citizens in the U.S.S.R. is fairly rare in most situations. I was reminded of this in the port city of Odessa on the Black Sea when I saw an old woman knocked down on the street by a trolleybus. As I watched, the driver rushed out and, instead of helping her, began yelling at her for "stupidly" walking in front of him. She picked herself up, dusted herself off, and then yelled out a few words in response that I didn't quite catch before she walked away. Contrast this with an incident in Oakland three years ago when a truck rear-ended an AC Transit bus. The six passengers got off the bus and were told to wait inside a nearby post office. When the police finally arrived and went inside the post office, they found eight people lying on the ground - all claiming to have been passengers injured in the accident. Phil and I visited Juris Consultazia No. 21 in Moscow, a law firm that boasts as its most famous client former Jewish dissident Anatoly Sharansky. Before Sharanky's 1978 trial for treason, his family was turned down by 20 to 30 advocates who would not take his case bacause Sharansky had refused to plead guilty. (Attorneys who work in law firms are called "advocates.") Unfortunately, the advocate who handled Sharansky's case declined to discuss it, citing client confidentiality. Inside Juris Consultatzia No. 21 was a large sign listing the fee schedule established by the government. The permissable fees charged clients are relatively low. For example, an oral consultation is typically one ruble (about $1.60) and drafting a complicated document costs six rubles ($9.60). A day of a criminal trial that lasts less than three days costs twenty rubles ($32.00); each subsequent day will earn an advocate twelve rubles ($19.20). Some legal services are provided free of charge, such as work involving workers' compensation or alimony. Although an advocate's salary is subject to a formal ceiling of 350 rubles ($560) a month, advocates routinely expect additional compensation (known as mikst) from clients beyond the official rates. As Ivan Fyodorovich, Honored Jurist of the Russian Soviet Federated Socialist Republic, described the workings of his office, Phil and 1 could not resist asking him if mikst was as common as American scholars of Soviet law claim it to be. "Absolutely not," answered Mr. Fyodorovich. "Anyone who took money under the table at this law firm would be fired." A month later I asked the same question of Anna, who had been practicing law m Odessa for eleven years, as we drove to pick up one of her clients for a meeting at the Ministry of Internal Affairs (equivalent to a police station). "Absolutely," she laughed. A SOVIET TRIAL In Leningrad, Joanne, an assistant district attorney from San Diego, and I attended a trial of an alcoholic on a petty offense at the People's District Court on Krasnoarmenskaya (Red Army) Street. As is common with many minor matters, the procurator (prosecutor) did not even take part in the trial. The questioning was conducted by the people's judge, who is elected by the citizens of the local district to the bench for a five-year term. Joining her on the three-judge panel were two lay judges call assessors, elected for 2 Y2 year terms and who theoretically have power equal to their professional counterpart in the courtroom. Traditionally, however, they defer to the people's judge. For the most part, the assessors in the trial sat quietly. The defendent had already pleaded guilty, but a guilty plea does not stop a criminal trial from taking place. A Soviet court is required to independently corroborate a defendant's guilt. Here, the defense attorney called two witnesses, including the defendant's weeping wife. In her closing argument, the advocate concluded by telling the court that her client was a good husband, a hard worker, and had stopped drinking. The three judges then adjourned to a back room to reach their decision. After waiting twenty minutes, Joanne and I left without ever finding out the court's verdict to catch a plane to Warsaw. SOVIET ENCOUNTERS Soviets and Americans have interesting conceptions about each other. American visitors believe that they will be followed everywhere they go by the KGB, the Soviet secret police. The only time I knew I was followed was after I helped an American tourist who wanted to exchange American T-shirts for Russian T-shirts with a Leningrad black-marketeer in front of the Gostiny Dvor department store. Since the blackmarketeer did not speak very good English, an essential requirement in his illegal profession, I conducted negotiations in Russian. This caught the interest of somone nearby who decided to follow us. We eventually lost him by ... ducking into the subway and then jumping on and off a couple of subway trains. Many Soviets, on the other hand, seem to think that the United States is rampant with crime. "Tell me, Jimmy," asked Vladmir, a Soviet Jew who had been thinking about emigrating for the last ten years, "do the Clint Eastwood and Chuck Norris movies represent real life in America?" Vladimir and his wife took part in an illegal video ring that acquired tapes of western movies, transcribed the dialogue into Russian, and then passed them around. Last year, the communist party newspaper Pravda reported that six people were sent to prison for showing "Rambo" and "Rocky IV," both of which Vladimir had seen and disliked. "No plot," he complained. There are over one hundred different nationalities in the Soviet Union. At the Alexander Nevsky Monastry in Leningrad, I struck up a conversation with a woman from Kazakhstan, located in Soviet Central Asia. She was curious about me because she and I shared similar Asian facial features. I was curious about her because a few days earlier, a Lithuanian friend had gotten me past a passport checkpoint at a radio tower /revolving restaurant in Vilnius by telling the guard that I was her friend from Kazakhstan. (I had forgotten my American passport at my hotel.) I asked the woman in Leningrad what life was like in Kazakhstan. "Good," she said, "very good." I then expected her to ask what life was like in the United States. Instead, she continued, "and I understand that you have a lot of unemployment in America and that blacks don't like it there." Article 36 of the Soviet Constitution outlaws racism in the U.S.S.R. At least until Gorbachev's glastnost campaign, racism did not officially exist. Nevertheless, there is probably a lot more racism in the U.S.S.R. than the Soviets will admit and probably a lot less racism that they think exists in the United States. Generally, the only blacks in the Soviet Union are students from thirdworld and "socialist brother" countries, along with an occasional tourist. I met Steven, who was black, in Kiev at the "Monument Commemorating the Reunification of Ukrainians with Russia." He was learning how to use his new Russian Zenit camera and had already ruined two rolls of his East German film that day. He had just finished the first year of study in the Russian language,as well as his introductory political courses (MarxismLeninism, dialectic materialism, history of the Soviet communist party) and was preparing to go back to Chad for part of the summer. Next year, he would begin five years of study at Kiev State University. GLASTNOST AND PERESTROIKA This summer was an exciting time to be in the Soviet Union. Every official we met spoke of glastnost and perestroika, the buzzwords of Gorbachev's campaign to reform the Soviet political and economic system. Although some of the Soviet citizens I spoke with felt that the reforms were overrated and had not yet affected the average person in any substantial way, the beginnings of change could still be seen. For example, at the Institute of State and Law of the U.S.S.R. Academy of Sciences in Moscow, a leading legal think-tank, the legal scholars openly discussed with us some of the proposed revisions to the 30-year old Soviet criminal code. All of this took place five months before the Soviet press agency, Tass, officially announced in early November that the criminal code was being rewritten. FAREWELL Most of us found in the Soviet Union what we expected to find. Those who expected to find corruption were able to meet black-marketeers willing to show them the seamier side of the Soviet system. Those who wanted to find night life were able to locate tourist-filled discotheques. For me, I expected to find a beautiful country populated wtih a wondrous people. I found it. Jimmy L. Hom is a student at Golden Gate University Law School in San Francisco. March, 1988 Louisville Law Examiner Page7 co~in~ Election Sign-ups For The 1988-89 soon· Law Examiner Editorial Board The American Express• Card gets an outstanding welcome virtually an}Where you shop, whether it's for a leather jacket or a leather-bound classic. Whether you're bound for a bookstore or a beach in Bermuda. So during college and after, it's the perfect way to pay for just about everything you'll want. How to get the card now. College is the first sign of success. And because we believe in your potential, we've made it easier to get the American Express Card right now. Whether you're a freshman, senior or grad student, look into our new automatic approval offers. For details, pick up an application on campus. Or calll-800-TIIE-CARD and ask for a student application. The American Express Carel. ® Don't Leave School Without It~ PageS Louisville Law Examiner The Mind Of Brandeis (Continued from Page 5) His clerk dutifully told the President that the Justice does not use the telephone. The President took this in good grace and asked the clerk to arrange to have the Justice come to see him. Lerner describes Brandeis as a "terrifying opponent to encounter." He inspired terror by his preparation and grasp of the facts, his fervor and self confidence, and his sureness that he was right - qualities that led Harold Lasky to write to Holmes that he saw Brandeis as more of a prophet than a judge. These strengths as an advocate made many powerful people fear and dislike him - and to oppose his appointment to the Court in 1916. Four years earlier he had suffered one of his few disappointments: the failure of President Wilson to name him attorney general in reward for master-minding Wilson's 1912 presidential campaign. It was shortly after this let down that he affiliated himself with Zionism - some said to give himself a political base. His relationship with Zionism was a stormy one. Brandeis saw himself as an American, and he saw a Jewish state as simply an option for those who might choose it. This was not enough for the European Zionist leaders. For much the same reasons that Brandeis lacked interest in philosophy and general principles, he lacked interest in religion. His concern was the here and now and how it could be made better. In 1914, when he accepted the chairmanship of the American Zionist Organization, he said: "The Jewish people has something which should be saved for the world .... It is our duty to pursue that method of saving which most promises success ." As an unhypenated American, Brandeis was convinced that our greatest national resource is the undeveloped talents of our ordinary people. And his mind was dedicated to developing that resource. Products of this dedication were his interest in the Louisville law school and the things he did to make it better: getting us on the list to receive . Supreme Court briefs, persuading the Harlan family to give us some of the first Justice Harlan's papers, leaving us a substantial part of his own papers. And his instructions about his burial at our law school reveal much about his mind. He was pragmatist. He thought his remains would do the most good if they were at a place where they could remind law students, and law teachers, I..ouisville Law Examiner School of Law University of I..ouisville l..ouisville, Kentucky 40292 March, 1988 of him and inspire them to work hard - the way he did. In conclusion I offer a little story I believe to be true: When his former law clerks - who included such people as Dean Acheson, Paul Fruend, David Riesman, and Henry Friendly - were planning a pilgrimage to visit him on his 80th birthday, he let the word go out that, instead of a visit, he would rather get a letter from each of them telling him what public service they had done recently. John M. Harlan Louis D. Brandtis ' ·~ . . Louisville~----- Law Examiner Volume 13 Dean Lewis on Women in Law Page 1 Candidates' Right to Privacy Page 1 Insights on Brandeis Page 4 An American Law Student in Russia Page 6 March, 1988 Number 2 T 1 1.·1 ' ~~ {j Photo by Todd Bolus |
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 | 1988-03 |
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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