Louisville Law Examiner Serving the University of Louisville School of Law Community
Volume 15, Number 1 Louisville, Kentucky - October 1989 Circulation 5,400
Student Bar Association Vice-President Maria Fernandez directs incoming first year
students to their advisors on Orientation Day. See Page 3 for more on the day's
events. (Photo by Deborah Patterson)
Leibson Receives Flexner
Chair For Teaching Excellence
By Maureen Kemme
Staff Writer
Professor David Leibson is the new
recipien of the Bernard Flexner Chair
for teaching excellence. Flexner
established the chair in his will in 1939.
The criteria for the chair are a
demonstrated high quality in the areas
of teaching, creativity, research and
service.
Leibson is the third recipient of the
award. The first holder of the Flexner
chair was Professor Otis Do by. Upon
Doby's retirement, Professor James
Merritt was awarded the chair. When
Merritt retired last year, a committee
was formed to select the new recipient.
The seven committee members were
representatives from the faculty,
students, alumni, and administration of
the school of law.
Dean Barbara Lewis, a member of the
committee, emphasized what a difficult
task it was to choose only one faculty
member. She said there are several
faculty members who should have a
chair, and it is unfortunate that we had
only one to award.
Chairs are salary supplements and are
set up for recognition. They are also
used to help the school keep highly
qualified people who might otherwise be
inclined to go to another law school.
Leibson was also the winner of this
year's Alumni Association Teaching
Excellence award. This award was
started two years ago by the Alumni
Association.
A faculty committee picks three
faculty members they believe are entitled
to the award. These names are given to
an alumni committee, which meets with
the President of the Bradeis Society and
Dean Lewis. This group evaluates the
faculty's choices and picks the professor
they feel most deserving.
Leibson said it was quite an honor to
be selected for the chair, and added that
we have several good people on faculty
who deserve chairs and endowments. He
hopes to see more alumni support in the
form of such endowments in the future
and believes that alumni support will be
the key to the success of the school in the
future.
Leibson said he was especially
honored to be following Professor
Merritt in the chair, since Merritt was
the Dean when he was first hired and it
was Merritt that convinced and inspired
him to go into teaching.
Unexpected Move
Dean Lewis Announces
Resignation Intention
By Vince Heuser
Editor-in-Chief
In a surprise announcement to the
faculty, Dean Barbara Lewis announced
her intent to leave the position of Dean
of the Law School after the 1989-90
school year and to return to teaching law
classes full time.
Lewis was appointed Dean of the
School of Law at the University of
Louisville in 1982 by president Donald
Swain. She replaced Norvie Lay, then
acting Dean, who currently teaches at
the Law School.
Dean Lewis graduated from the
University of Louisville with a degree in
English and entered the University of
Louisville School of Law. She graduated
from the Law School in 1962 having
served on the Journal of Family Law's
first volume. After completing a master
of Art in Education at Tennessee
Technological University, she obtained a
Master of Law and Taxation Degree
from the College of William and Mary
in Virginia in 1974.
She has taught at Cumberland School
of Law, the University of Oklahoma
Law School and was interim Dean there
for 1980-81.
Although Dean Lewis' management
style has left some faculty and students
less than disappointed at her decision,
Dr. Donald Swain, president of the
university, says it has been a pleasure
working with her and he is indebted to
her for accomplishments which include
advances in affirmative action among
faculty and students at the Law School,
improvements in the scholarly work of
both faculty and students and better
relations with the alumni association.
Lewis has also received an award for
teaching excellence and has published or
assisted in publishing numerous works
in such areas as taxation, decedents
estates, corporate planning and estate
planning for women.
Teaching has always been her first
love, according to Dean Lewis, but she
has enjoyed her 8 year tenure as dean.
She says her tenure has been longer than
the national average among law school
deans and that the time has come to
resume teaching full time.
When asked whether she thought
having been the dean would have any
affect on her relationship with other
faculty members, Dean Lewis pointed
out that the faculty at this law school is
used to having former deans around. In
the last few years as many as five
members of the faculty have been
former dean or acting dean at the School
of Law.
She intends to remain on the faculty
of the Law School and return to full­time
teaching when she steps down next
summer.
Dean Barbara Lewis ·
Law Applicants Spend Summer Proving Potential
By Deborah Patterson
Night Associate Editor
The room was filled with the usual
mixture of shorts and business suits. The
attendance sheet circulated down rows
sprinkled with highlighter pens, micro­cassette
recorders and not-so-concealed
Casenote Briefs. A name is called.
Papers shuffle, pages flip and an
anxious voice gives the facts of the next
case.
Despite the obvious similarities, the
scene which took place this summer in
one of the large lecture rooms was not
that of a typical first year law class. The
students gathered together four evenings
a week from 6:00 to 8:40 for eight
weeks. They prepared from lengthy
reading assignments in Constitutional
Law and Wills. They briefed the cases
they read and outlined each course's
material in preparation for the three
hour final exam which would determine
their grade.
And they were stressed. It was the
root of the stress which makes this group
atypical. For while the folks down the
hall doing pretty much the same sort of
things were concerned about how their
performance might affect their class
ranking, this group's focus was on
whether their performance would allow
them the opportunity to even have a
class ranking.
These students weren't official law
students but merely prospective ones
participating in a somewhat unusual
applicant screening program offered by
the School of Law Admissions Office.
The Admission By Performance
Program has been a part of the School
of Law admissions process for five
years. Professor Harold Wren, who
chaired this year's Admissions
Committee and has taught in the
program for three summers, is pleased
with benefits the program affords both
the applicant and the overall incoming
class.
"Admission By Performance makes it
possible for those applicants without the
traditional criteria to go to law school,"
says Wren. And, he adds, these people
who often times do not fit the "fresh out
of college'' mold add to the overall mix
(Continued on Page 7)
2 Louisville Law Examiner, October, 1989
Louisville Law Examiner
EDITORIAL BOARD
Vincent F. Heuser, Jr.
Editor-in-Chief
John Kuhn
Associate Editor
Maureen Kemme
Catherine Morton Ward
Larry Cook
Jim Barrett
Eric Salthe
Erin Brown
STAFF
Frank Dempsey
Managing Editor
Deborah Patterson
Night Associate Editor
Curtis Thornhill
Maureen Thomas
Brad Freeman
Steve Waltrip
Rebecca Carr
Professor LAURENCE C. KNOWLES, Consultant
Professor RONALD EADES, Consultant
The Louisville Law Examiner is published six times during the academic
year in the .interest of the University of Louisville School of Law community.
Articles are invited from faculty members, students, and members of the bar
who wish to do freelance work. Any proposed article should be cleared with
the Editor as to topic and length.
Address all communications to The Louisville Law Examiner, School of
Law, University of Louisville, Louisville, Kentucky 40292.
Phone: S02-S88-6398.
Kentucky's
~llaiting
Children
There are over 250 children in
Kentucky waiting to be adopted. These
are white children over ten years of age,
minority children of all ages, some may
have physical or mental disabilities or
may be in sibling groups of three or
more.
To adopt a waiting child you can be
single; you don't have to own your own
home; and you can be working parents.
If your're interested in more
information on how you can adopt a
waiting child please call the Special
Needs Adoption Program at (502)
588-4303 or toll free 1-800-432-9346.
Editorial
Bans Threaten Freedom
By Vince llcuscr
Editor-in-Chief
Some political writers predicted that
democracy in the United States would
not see its 200th birthday. While the
walls have not come tumbling down,
disturbing trends do exist.
Democracy, as we all know, came to
us as the result of a fundamental desire
for freedom. To many Americans in our
200 year history, freedom has meant
that the government or society imposes
on the people no further than is
necessary to accomplish a legitimate
political or social goal. In order words,
freedom in democracy has meant that
the masses do not crush the individual in
the pursuit of happiness. This premise
ought to determine what means are used
to control the masses.
Controlling crime is an increasingly
difficult problem in the United States. It
is also a legitimate social goal. However,
the means we choose to effect that
control ought to depend on the type of
society, we must make laws that hold
people responsible for violating those
rules, not laws that take away the ability
to commit crime. Those who abide by
the rules ought not suffer the burden of
state intervention.
If we choose not to have a free society
then instead of regulating conduct and
treating people as responsible
individuals, we regulate possessions. We
take away everyone's freedom to act
r th · · · i ·
who act in an improper way. Everyone
then bears the burden of government
intervention. Almost any object can be
misused. Given a sufficient number of
irrational legislators responding to the
untempered emotions of various groups,
we may one day all be locked in rubber
rooms to protect us from each other.
The disturbing trend in the United
States is the increasing use of the ban as
a means of preventing undesirable
conduct. Although in most cases the
items banned causes a relatively
insignificant burden on most people, the
reliance on government control to keep
us all from misbehaving decreases our
own incentive to discipline ourselves and
makes us more dependent on
government control with each new law.
Americans are becoming less
responsible as citizens, less self­disciplined
and more reliant on big
brother to make everything right. We
are moving toward socialism.
The foremost examples of this trend is
found in the "War on Drugs" in this
decade and Prohibition in the 1920's.
Both are clearly losing propositions.
When people want a material thing,
people will get it. The only way to
prevent that is to become a completely
closed society. Is there where we are
headed? Even the local lawmakers
cannot resist the ease of control
associated with a ban. According to a
Courier Journal report, the local county
attorney wants to ban selling cold beer
near the checkout counter.
Perhaps there are many reasons for a
move toward a more restrictive society.
The wealthy class needs increasing
power over the masses to maintain the
increasingly polarized distribution of
wealth. Many Americans fail to object
for no other reason than apathy, but
many others may approve because they
don't see the cost to our system of
government and our freedom.
Probably the biggest reason for morel
restriction is the increasing
shortsightedness of the American
people. In the era of prosperity,
Americans have learned to think of
short term gratification and less about
politics, philosophy, and their own
futures.
In an analysis which ignores the cost
of losing our freedom, the ban seems
like the most economically efficient
means of preventing undesirable
conduct. It avoids part of the cost of
enforcement since inspection under a
ban is less expensive than investigation
in a free society. It reduces the cost of
administering justice since proof of
crimes of possession is much easier and
less costly than proof of acts committed
by free individuals. If freedom means
nothing to Americans then the ban is a
politically viable option.
There remains a problem, however,
even with the ban. The ban has never
been effective in a basically free society.
The two concepts are at odds with each
other. Drugs have been banned for
decades but the news media shows us
almost every night that drugs are the
worst problem in America.
Another problem is one of balance,
only those persons who intend to act
illegally would violate a ban, but law-abidin
teve
benefit that banned items provide. In the
case of drugs, glaucoma patients must
fight their government to get relief while
illegal marijuana becomes the number
one cash crop in Kentucky.
Possession of things like tobacco,
alcohol, firearms and drugs does not
have much of an impact on responsible
people. Just as there are cocaine
billionaires in Colombia, there are
tobacco and alcohol billionaires in the
United States. What is the difference?
The difference is that police and
innocent bystanders aren't being killed
in tobacco and whiskey wars (at least not
any more). Granted, people are dying on
the highways from alcohol, but a six
month suspension of the drivers license
is hardly going to change that. A felony
murder conviction might.
Punishment of undesirable conduct
leads to people taking responsibility for
their own action. Certainty of
punishment causes people to adapt their
behavior. Not too many people go
around picking up hot coals with bare
hands. If criminal justice were as certain
as the physical environment, behavior
would adapt. Instead of making our
criminal justice swift and certain, we
water it down with weak punishment,
probation, and plea bargaining. As a
result, no one is sure what punishment
will result from a particular act.
The faci: that an uncertain justice
system increases the need for lawyers
and the amount of time a lawyer can bill
make uncertainty a good idea for
lawyers. Whether uncertainty in our
legal system is the lawyer's bread and
butter, it is the enemy of responsible
citizenship and of freedom. If we want
freedom, we must act responsibly and be
h~ld responsible.
Louisville Law Examiner, October, 1989 3
Getting Oriented Incoming Students Spend
Day In Preparation
Justice Joseph E. Lambert
By Deborah Patterson
Night Associate Editor
This was the toughest year in history
to gain admittance into a school of law.
So began Dean Barbara Lewis as she
addressed incoming first year students at
the customary Orientation Day activities
on Monday, August 21. Quickly after
quoting the statistic from the Law
School Admission Council, however,
the Dean warned the group not to rest
on their laurels but prepare to "work
harder than you have ever worked in
your life."
Her sentiments were echoed by the
Opening Session's featured speaker,
Justice Joseph E. Lambert of the Ken­tucky
Supreme Court. He urged the
Lawyers Guiding Students
Mentor _Program Continues
By Frank Dempsey
Managing Editor
University of. Louisville law students
are learning about some of the more
practical aspects of the legal world
thorugh the Kentucky Bar Association's
innovative mentor program.
The program, in its third year at U. of
L., matches students with experienced
practicing attorneys. The practitioners
help the students learn some of the
pragmatic aspects of working in the legal
profession. The mentors also explore
available employment opportunities
with the students.
Created in 1986 for the University of
Kentucky's law school as a pilot project,
the K.B.A. expanded the program to the
Schools of Law at U. of L. and
Northern Kentucky University in 1987.
Originally, the program was designed
solely for one-to-one interaction
between the students and their mentors.
But last year, the Louisville's program
was extended to include a series of
general seminars for all participants.
The seminars, which featured speakers
in different fields of practice, were
designed to show students the variety of
career opportunities available. The
seminars also let the students meet and
socialize with a large group of practicing
lawyers.
The first of these groups meetings last
year, held March 31 at the Louisville Bar
Center, featured lawyers explaining the
pros and cons of practicing solo,
working for a large firm, doing
corporate work and working for the
government. The students also had an
opportunity to question the
professionals about job prospects in
their fields.
Reaction to the program from
students, mentors and law school
administrators has been almost
uniformly positive.
"It's been very helpful to me so far,"
said Steve Waltrip, now a second-year
law student, "In addition to seeing some
applications of what we learn in class,
it's been like a practical course in
Kentucky civil procedure."
Melissa Stevens, a third-year student,
who is also participating in the program
for its third year, said working with her
mentor has afforded her some unique
opportunities. "There are certain
practical, everyday things you'll never
learn in school," she said, "Seeing
things like depositions and motion hours
has been fun and informative."
The mentors also find working with
the students rewarding. David
Blandford, Louisville attorney and U. of
L. School of Law graduate ('75) is
working with a student for the first time
this year. "I enjoy it," he said,
"Something like this needed to be done.
The working bar can provide significant
help to students. When I went to law
school, we had practically no contact
with working members of the bar. I
think this program prepares students
better for the world of practice."
Larry Franklin, who heads the K.B.A.
committee which is administering the
program at U. of L. said he liked
working as a mentor last year. "I
thought it was very rewarding," he said.
Franklin and the governing committee
have made several improvements in the
program last year and they want to
expand the program even more this year.
Franklin said, "The biggest change we
made last year was the addition of the
three group seminars for all students and
mentors. We had a small problem last
year with students and mentors being
unable to contact each other. But we've
mandated that the students and mentors
meet with each other at least four times a
semester. And the seminars help to
insure eveyone gets involved, too."
Franklin said reaction from the
practicing bar has been very positive.
"We've got more mentors than
students," he said, "Attorneys in every
speciality. If a student is interested in
any particular area of the law, there is
no problem in matching the student with
someone in that field of practice."
Professor William Dolson represented
the U. of L. School of Law on the
mentor program's governing committee
last year. He also makes sure the
students know about the availability of
mentors.
Dolson thinks the program is an
important addition to the school's
teaching program. "We teach the
substantive and procedural law which is
(Continued on Page 8)
students to feel grateful since the seat
they occupy was pursued by five to ten
other applicants and for them to make
the most from this opportunity.
Justice Lambert is a 1974 University
Of Louisville School of Law graduate
and admitted he was always had some
apprehension about speaking to (or even
before) law professors. Stories of the
cruelty of law professors are
legendary ... and true, he said. But, he
added more seriously, ''The game will
be played fairly."
The distinguished alumnus went on to
give the freshman some advice. "Be
dumb enough to follow the ru1es," he
said, referring to the necessity of reading
and briefing all cases. "And get enough
rest." Justice Lambert said these two
things would more nearly insure success
than anything else.
A total of 182 (138 day, 44 night)
. students are enrolled in the incoming
class, and most braved the rainy Mon­day
to hear Justice Lambert's remarks
and participate in other orientation ac­tivities.
The two new associate deans, Jac­queline
Kanovitz and R. Thomas
Blackburn, explained their respective
duties which according to Dean Lewis'
introduction include "solving all pro­blems
of the faculty and students." The
students were given the opportunity to
put some faces to the names on their
schedules when the Dean introduced the
law school faculty.
Following the Opening Session,
students were grouped with their student
advisors who guided them through the
rest of the day's agenda.
A Professional Responsibility Ses­sion.
Panel discussion with professors.
Book purchases. Locker rentals. Park­ing
permits. I. D. cards. Facility tour. All
this, spiced up with a few helpful "off
the record" hints from upperclass ad­visors,
made for a suitable initiation into
the world of law school.
To quote from Dean Kanovitz's open­ing
remarks, they have begun their pro­gression
from ''fumbling
undergraduates to semi-lawyers (people
who make lawyer like noises in a semi ef­fective
method)."
Second year advisor Anne Leitsch guides
incoming students thru the world of
study aides in the SBA bookstore during
Orientation. (Photo by Deborah
Patterson)
New Professors Welcomed
Prof. Michael Jordon
Michael Jordan, a 35 year old
graduate of the University of Iowa
School of Law, comes to U of L as an
assistant professor and will be teaching
an Employment Discrimination seminar
and the class Labor Law this semester.
He worked for both the Iowa and the
Minnesota Attorney General and has
served as labor counsel for Northwest
Airlines since 1985.
Professor Jordan decided to
accept this teaching assignment
because it allows him to
"address issues that go beyond the day
to day hassles of handling clients."
Prof. Arturo Torres
Arturo Torres is a 42 year old
assistant professor of law in the law
library. He received his J.D. from
Williamette College in Salem, Oregon in
1979 and received his M.L.S. from the
University of Washington in 1984. He
has worked for Legal Aid in Oregon for
3 years and spent 5 years as the head of
Reference for the University of Arizona
Law Library. This native Texan views
the opportunity to work at the
University of Louisville as an important
opportunity to gain breadth and
experience. He was especially drawn to
Louisville by the friendly faculty and
staff he encountered during the
interview process.
4 Louisville Law Examiner, October, 1989
Brandeis Brief Trade Secrets As A Variety Oflnt
John T. Cross
I. INTRODUCTION
Over the course of the last 100 years,
trade secrets have become increasingly
important both to industry and to
society at large. Because of the rapidly­evolving
state of modern technology,
inventors have begun to rely increasingly
on trade secret protection in lieu of the
more traditional protection of the patent
laws'. The patent laws have proven
inadequate to modern inventors for at
least two reasons. First, inventors have
begun to dabble in areas beyond the
imagination of the drafters of the patent
laws, such as splicing the DNA in life
forms. The courts have had to struggle
with fitting these new innovations into
the existing patent structure2
•
Second, inventors have experienced
frustration with the slowness of the
patent process3
• In a field in which
changes occur monthly, these
procedural delays make patent
protection somewhat less attractive to
inventors. Accordingiy, inventors have
often foregone the patent laws and
instead opted for trade secret
protection. •
As might be expected, the increased
use of trade secret protection has
resulted in a great deal more discussion
of trade secrets in the courts and in the
literature. This heightened focus on
trade secrets has had an interesting
effect. In recent years, the courts have
started to divorce the law of trade secrets
from its origin as a subspecies of tort
law. With increasing frequency, trade
secrets are being viewed as a distinct type
of intellectual property5
• Underlying this
change in focus is the recognition that
ownership of a trade secret is a valuable
right of an inventor. This change in
perspective, however, has raised
problems of its own. Unlike patents,
copyrights, and trademarks, the law of
trade secrets serves no clearly-defined
function. As will be discussed below,
certain traits of trade secret protection
conflict with the existing federal laws,
particulary the law of patents. Although
the Supreme Court has ruled that state
trade secret laws are not per se
preempted by the federal patent laws6
,
the degree of overlap between patent
and trade secret protection makes the
function of the latter unclear.
The purpose of this piece is to discuss
the role of trade secret protection in the
overall scheme of intellectual property.
In order to do this, one must of needs
analyze the respective roles played by
copyright and patent protection. This
comparison of the federal laws
governing innovation reveals that there
is an asymmetry in the patent/copyright
scheme. This article will attempt to show
that trade secret laws help to remedy this
asymmetry by providing a "copyright"
style of protection for inventions 7
•
II. TRADITIONAL
JUSTIFICATIONS
FOR TRADE SECRET PROTECTION
Unlike a patent or a copyright, trade
secret protection arises entirely under
state law. Under the Restatement
definition, a trade secret is
... any formula, pattern, device
or compilation of information
which is used in one's business,
and which gives him an
opportunity to obtain an
advantage over competitors who
do not know or use it. It may be a
formula for a chemical compound,
a process of manufacturing,
treating or preserving materials, a
pattern for a machine or other
device, or a list of customers8
•
In addition, the person claiming trade
secret protection (hereinafter the
"owner") must undertake a deliberate,
continuing effort to keep the secret a
secret. Provided that the owner takes
reasonable actions to preserve secrecy,
he may in certain circumstances have a
cause of action in the event the secret is
uncovered9
•
Mere disclosure of the secret,
however, is not sufficient to give rise to a
cause of action. In order to state a trade
secret claim, the owner must
demonstrate some wrongful activity on
the part of the party who learned the
secret' 0
• The defendant is not liable if he
makes his discovery independently or
through "reverse engineering''."
Trade Secret laws help
remedy assymmetry in
patent/copyright scheme.
Instead, the defendant must breach
some promise of confidentiality or
obligation of good faith. Therefore,
trade secret actions are usually brought
against employees who violate an
express or implied covenant of secrecy
with their employers, or competitors
who use industrial espionage or other
unlawful means to obtain the secret.
This focus on breach of confidence
and fair dealing is due to the evolution
of trade secret law as a subspecies of tort
law' 2
• Nevertheless, in its current form a
trade secret also exhibits many of the
characteristics of intellectual property.
Under the law of most states, a trade
secret is protected only if it involves
some degree of innovation 13
• Without
this minimal degree of originality,
disclosure will not be actionable as a
trade secret claim 14
• Accordingly, trade
secret issues usually arise in the context
of some innovative product or method
of production. Although the innovation
may not be of a level sufficient to
qualify for patent protection, trade
secret protection nevertheless offers a
haven for the innovator. Therefore, it is
at least facially logical to view trade
secrets as a species of intellectual
property.
Ill. PATENTS AND TRADE
SECRETS COMPARED
As discussed above, it is a prerequisite
to trade secret protection that the secret
have a minimal degree of novelty.
Therefore, trade secrets, like patents,
protect inventions. In addition, the types
of inventions protected by trade secret
law are virtually identical to the types
that may qualify for a patent. Under the
Restatement definition quoted above,
trade secret protection is available for
materials, processes, designs of
machinery or other devices, and
customer lists. Except for customer lists,
the classes of inventions that may
qualify for patent protection is
remarkably similar' 5
• Therefore, there is
a substantial overlap between the two
spheres of protection. Many inventions
could be protected under either the trade
secret or patent laws.
B. The Conflict Between Trade Secret
Protection and the Goals of the Patent
Laws
Although the categories of inventions
that qualify for protection under each
system are very similar, patent
protection is more difficult to obtain.
Congress' power to provide for the grant
of patents arises from its Article I power
"to promote the Progress of Science and
the useful Arts ... "' 6 In order to ensure
meaningful progress in the state of
technology, Congress has conditioned
patent protection upon several criteria.
The first major hurdle typically proves
to be the most difficult to surpass for
most applications. Patent protection is
available only for truly significant
inventions. As the Supreme Court stated
only half in jest in Graham v. John
Deere Co.'', the seminal case of the
degree of novely required for patents,
"[h]e who seeks to build a better mouse
trap today, has a long path to tread
before reaching the Patent Office' 8
. "
More significantly, Congress has also
established a requirement of public
disclosure in the patent system. When an
inventor applies for a patent, he must
disclose the invention to the Patent and
Trademark Office ("PTO"). If the
patent is granted, the application and all
supporting information become
available for public perusal' 9
• Since only
the inventor can produce or sell the
inverrtion during ,
this information is of little immediate
use to the public while the patent is in
force. Upon expiration of the patent
term, however, the invention is available
for public use. In other words, after
seventeen years, anyone may obtain the
crucial features of the invention from
the PTO files, and freely produce and
sell the invention without interference
from the patentee or any licensee.
Implicit in the scheme of patent
protection, then, is the assurance that
the invention will eventually be
dedicated to the public. 20
These features are not present in state
law trade secret schemes. First, trade
secret protection is available on a
showing of only minimal novelty.
Therefore, it is available for many
inventions that represent nothing more
than a minor change to or improvement
.. . protection is available
on a showing of only mini­mal
novelty.
in the existing art. This means that trade
secret protection will be available for
many inventions that would fall short of
the high barriers established by the
Patent Act.
In addition, trade secret law does not
attempt to protect the interest of the
public in obtaining technological
knowledge. A trade secret has an
indefinite life. As long as the inventor
makes no public disclosure of the
invention, he can protect the secret
against wrongful appropriation 21
• Trade
secret protection is lost only if the
invention is disclosed to the public,
either by direct action of the inventor or
failure to protect. Therefore, the owner
has no incentive whatsoever to reveal his
knowledge to the public. Although in
the short run this may protect the
inventor from losing the fruits of his
labor, in the long run it means that
society may not gain advantage of the
new idea22
• ·
Trade secret law, then, provides an
alternative system of protecting
inventions. In so doing, it affords the
inventor the option of disclosing the
invention and obtaining an limited
monopoly through the patent laws, or
withholding the secret and obtaining
protection that is narrower in scope, but
potentially unlimited in duration. This
· overlap between the scope of trade secret
law and that of patent law may indicate
that trade secet law is either unnecessary
or overbroad23
• To the extent that trade
secret and patent protection are
redundant, the former may interfere
with the operation of the latter. If so, a
case can be made for Congress to step in
and either modify or nullify state trade
secret laws to prevent any adverse
impact on the federal patent laws.
IV. THE ROLE OF TRADE SECRETS
Is there a substantial inconsistency
between state trade secret law and
federal patent law? Perhaps so; but that
question ducks the real issue. A more
pertinent question is whether trade
secret law, as it currently exists, is
consistent with the entire scheme of
federal intellectual property protection.
ough u ade secrets may overlap t11e
field of patents, they may nevertheless
have a place in the overall scheme. In
order to answer this question, it is
necessary to compare the main federal
laws covering innovation; namely,
patent and copyright24
•
For the purpose of discussion,
innovations can be divided into two
large groups: artistic and technological.
The copyright and patent laws,
respectively, represent Congress'
attempt to establish a system of
protection for these types of innovation.
The copyright laws protect works of art;
tangible expressions of ideas or
emtionsH. The patent laws, on the other
hand, cover inventions; items or
processes which serve a utilitarian
function 26
•
Although Congress has set up
separate systems for works of art and
inventions, the systems are in no way
parallel. Conceptually, there are two
fundamental differences between the
two systems.
A. Requisite Degree of Orginality.
As discussed above, the courts in
recent years have required a high degree
of originality before an invention will
qualify for patent protection. The same
is not true for copyright protection. In
order to receive a copyright, the author
need only submit an "original" work27
•
The Copyright Office makes no
judgment as to whether the work is
"significant" or a "substantial
improvement" over a prior book,
symphony, or painting28
• Since the
requisit degree of originality is markedly
less restricted than that for patent. This
broader reach of the copyright laws
produces an asymmetry in the two
systems.
B. Type of Protection - Property-
Louisville Law Examiner, October, 1989 5
llectual Property
based versus Tort-based
It is often said that the grant of a
patent provides the inventor with a
monopoly over production of the
invention29
• If any other person
produces and sells the patented
invention, the patentee may invoke the
power of the courts to protect the
economic benefits flowing from this
monopoly position. The knowledge or
motive of the purported infringer is
generally irrelevant in establishing a case
of infringement. For example, it is not a
defense to an infringement action that
the infringer had no knowledge of the
existence of the patent, or believed in
good faith that his product or process
did not violate the patent30
• The patentee
will prevail in an infringement action
merely upon a showing that the
infringer's product or process is within
the scope of the invention covered by the
patent.
This type of protection in analogous
to a property right. The owner of a
parcel of land has a "monopoly" over
the use of the land. If someone else uses
the land, the owner can invoke the
power of the court to compel the
"trespasser" to cease using the land.
The knowledge or motives of the
trespasser are irrelevant to the owner's
right to eject the trespasser.
A copyright, however, provides a
different type of protection. Although a
grant of a copyright creates a monopoly
in the author, it is a monopoly only over
copying of the work. A copyright owner
has no right to interfere with one who
creates an identical work through
independent means31
• This difference in
.. . provide a copyright
"tort based" system of
protection.
focus is crucial. Unlike patent
protection, the knowledge of the alleged
infringer is important in a copyright
infringement action. One can "copy" a
work only if he is aware of that work.
Absent copying, the later author is free
to prepare and sell his own work of art,
regardless of the degree of similarity.
The form of protection provided by
the copyright laws may be loosely
described as "tort-based." As in the law
of negligence, a copyright infringer may
only be held liable if he knew, or should
have known, that his work was identical
or substantially similar to the
copyrighted work32
•
In summary, then, the protection
scheme created by Congress for the two
broad classes of innovations is not
symmetrical. With respect to inventions,
the initial hurdle to federal protection is
quite high. Due to tke "spark of genius"
requirement, only a small percentage of
inventions will qualify for protection
under the patent laws. Once an
invention surmounts this hurdle,
however, the scope of protection of the
"property right" is quite broad.
Copyright law, on the other hand, has a
much lower initial threshold. Most
original works of art will qualify for a
copyright. Once this hurdle is cleared,
however, the scope of protection
afforded by the copyright laws is much
narrower. To recover against an
infringer, the author must demonstrate
that there has been copying. Therefore,
the protection provided by federal law
for inventions and works of art differs
significantly.
C. The Role of Trade Secrets
This asymmetry between the reach of
the patent and the copyright laws
suggests that there may be a role for
trade secrets to play in the protection of
intellectual property. The strict
originality requirements of the patent
laws mean that there will be a large
category of inventions of lesser
significance for which no federal
protection is available. A work of art,
on the other hand, may receive federal
protection regardless of whether it
demonstrates any artistic genius. It is
somewhat anacronistic to afford
protection to artists regardless of their
level of creativity, but to protect only the
most ingenious of inventors. It can not
be gainsaid that less significant
inventions generate no benefit to
society. And, if these "less significant"
inventions generate a benefit to society,
the inventors should be allowed to
recoup some of thise benefit by way of
some form of legal protection for the
fruits of their labor. Accordingly, the
lack of any federal protection for these
inventions creates a gap in the federal
scheme of protection.
It is the thesis of this article that the
law of trade secrets fills this gap. Trade
secrets, like patents, are available for
inventions. Because trade secret law
requires less originality, a trade secret
affords the inventor of the less
significant invention an alternate form
of protection for his innovation.
Therefore, he can put the invention to
good use without the fear of having it
misappropriated by another. The right
to proceed against a defendant who
misappropriates the invention preserves
to the owner a substantial portion of the
economic value of the innovation.
In some ways, the current state of
trade secret law performs a yeoman
service as an "alternative" to the patent
laws. First, a secret need only be
minimally creative in order to qualify
for trade secret protection. As such, the
law of trade secrets covers that class of
inventions falling without the patent
laws.
Second, and more significantly, the
trade secret laws differ significantly
from the patent laws in that they provide
a "tort-based" instead of a "property­based"
system of protection. In order to
prevail on a trade secret claim, the
owner of the secret must show some
unethical behavior on the part of the
infringer. If someone discovers the
secret through reverse engineering, or
stumbles on to the secret independently
through his own activity, he can not be
held liable to the owner of the secret
under the trade secret laws. Therefore,
the owner of the trade secret holds a
valuable right only as long as no one else
discovers the secret in an acceptable
manner.
Viewed in this light, the trade secret
laws are very similar in concept to the
copyright laws. Neither copyright nor
trade secret law provides the
author /inventor with the exclusive right
to use or sell the innovation. Instead,
Professor John T. Cross is a 1981 graduate of Bradley University. He received his
J.D. from the University of Illinois and was admitted to the Minnesota Bar in 1984.
Cross has been an assistant professor at U. of L. since 1987.
each may prevail only upon a showing of
wrongful activity on the part of the
alleged infringer. In addition, under
each system, the owner of the right must
take some steps to protect the right from
unrestricted public disclosure33
•
Trade secret law, then, can be viewed
as a "copyright" (tort-based) form of
protection for minimally creative
inventions. The true monopoly rights
are reserved under the patent laws for
the truly inspired inventions34
• The less
significant inventions receive a
correspondingly lesser degree of
protection.
This analysis suggests that trade
secrets do play an important role in the
overall scheme of protecting intellectual
property. Without trade secrets, an
inventor would need to make a much
greater showing of creativity to garner
protection under the patent laws than
would an author under the copyright
laws. The addition of trade secret law to
the calcus helps to remove this anomaly.
With trade secret law, both inventors
and authors may receive protection as
long as their innovation bears some
minimal creativity35
• By expanding the
class of inventions that are entitled to
receive protection, the trade secret laws
help to render more symmetrical the
protection afforded to inventions and
works of art36
•
By acting as a supplemental form of
protection, the trade secret laws serve a
useful purpose. Like the patent laws,
they provide an incentive for the
inventor to improve society's level of
technological development through
innovation. Since the inventor is
protected against misappropriation of
his invention, he is assured of the
opportunity to gain the economic
benefit flowing from the innovation.
Without this protection, the inventor
could benefit from a nonpatentable
invention only by never disclosing the
idea to others or reducing the idea to
tangible form. Although this may not
have been the all-encompassing system
intended by Congress when it enacted
the copyright and patent laws, it
nevertheless indicates that there is a
logical niche for trade secret protection
in the realm of intellectual property37
•
V. CONCLUSION
In recent years, the courts and
commentators have started to change
their views concerning the justifications
for trade secret protection. Although
trade secret protection originated in tort,
it has in recent years come to be viewed
as a form of intellectual property. As the
above discussion indicates, trade secrets
do represent an important type of
protection for the inventor. More
True monopoly rights re­served
under patent laws ..
specifically, they provided a limited
form of protection to an inventor who
develops a product or process that
represents only a slight improvement
over the current state of the art. The
protection afforded by the trade secret
laws is only against copying, not against
the independent development of the
secret. By expanding the scope of
protection for inventions, trade secrets
play an important role in the intellectual
property scheme.
NOTFS
l. M. Jager, Trade Secrets Law 1-1 (1988).
2. After a period of uncertainty, it is now clear
that patent protection is available for genetically
engineered bacteria. Diamond v. Chakrabarty, 447
u.s. 303 (1980) . .
3. Current patent applications take an average
of almost two years to prosecute. Quigg, The
200th Year under Article I, Section 8, 69 J. Pat. &
Trademark Off. Soc'y. 685, 689 (1989). This
figure does not include design patents.
4. M. Jager, supra note 1, at 1-l.
5. Cf. Ruckelshaus v. Monsanto Co., 467 U.S.
986, 1001 (1984) (a trade secret is "property" for
purposes of the fifth amendment) and United
States v. Bottone, 365 F.2d 389 (2d Cir.), cert.
denied 385 U.S. 974 (1966) (a trade secret is
"property" under 18 U.S.C. § 2314, which
prohibits transport of stolen goods across state
lines).
6. Kewanee Oil Co. v. Bicron Crop., 416 U.S.
470 (1974). One can also make an argument that
state laws are preempted by the terms of the 1976
Copyright Act. This issue has been discussed in
several recent cases; which are summarized in M.
Jager, supra note 1, at 10-9- 10-16.1.
7. As a matter of convention, this article will use
the term "inventions" to indicate innovations that
may qualify for patent or trade secret protection,
and the term "works of art" to denote innovations
falling under the copyright laws. Similarly, the
term "inventors" will be utilized when referring to
a person who creates an invention, while "author"
will be used for the creator of a work of art.
8. Restatement of Torts § 757.
9. Kewanee Oil, 416 U.S. at 475.
10. Id. at 475-76.
11. "Reverse engineering" is the process of
discovering a trade secret by working backwards
from the finished, distributed product in order to
ascertain the processes and materials used in its
(Continued on Page 7)
6 Louisville Law Examiner, October, 1989
Kanovitz, Blackburn
Professors To Share
Associate Dean Duties
By Jim Barrett
Staff Writer
The school of law has announced that
Professor William Dolson has stepped
down from the post of Associate Dean
and has taken a sabbatical for the fall
semester. His responsibilities are now
being shared by Professors Jacqueline
Kanovitz and Thomas Blackburn.
Dolson served as Associate Dean for
three years.
The office of the associate dean assists
the dean and manages much of the daily
operation of the School of Law. Dean
Kanovitz will specialize. in student
affairs, Dean Blackburn in
administration. The office will require
an element of teamwork as many of the
issues they deal with have both
"student" and administrative elements;
each would perform the other's duties in
the absence of the other.
Some examples of student affairs that
Kanovitz will handle include :
Counseling and assisting students with
special needs and passing on student
requests for exceptions to standard
procedure (e.g. overloads, make-up
exams, leaves of absence, taking courses
in other divisions, etc.) She deals with
attendance probiems by communicating
with students at the request of
professors. She also prepares bar
certifications for graduating students.
Kanovitz would like students to feel free
to bring her "any matter which requires
an administrator's ear." Kanovitz also
plans to be available to evening students
until 6 p.m. on Tuesdays.
Kanovitz is a graduate of the U. of L.
School of Law (magna Cum Laude) '67.
She joined the faculty in 1969,
specializing in property and decedent's
estates. She currently teaches Contracts
and the Uniform Commercial Code.
Kanovitz co-authored a leading
undergraduate text on Constitutional
Law, during her senior year in law
school.
Dean Blackburn's duties will include:
working with student organizations in
planning and executing law school
programs, distributing scholarship
funds and chairing the Financial Aid
Committee. He represents the dean's
office on the Admissions Committee
and works with the admissions officers
to recruit strong candidates for law
school. Blackburn also passes on
admissions to the MBA-LL.M. program
Dean Thomas Blackburn
offered jointly with the School of
Business. He also serves as prosecutor
for Honor Code violations.
Blackburn plans to change the way
scholarship funds are allocated .
Currently, the University allocates funds
immediately after the start of the school
year. The Dean then distributes the
School of Law's share to its most
deserving candidates. Blackburn feels
that the allocation of funds prior to the
commencement of the school year would
allow his office to offer scholarships to
targeted candidates as inducement to
attend U of L.
Dean Jacqueline Kanovitz
Blackburn received his J.D. from the
Vanderbilt School of Law and an LL.M.
from Harvard. He was in private
practice from 1971 and joined the
faculty as a full-time associate professor
in 1980. Blackburn currently teaches
Corporations and Basic Tax.
As both new deans settle into their
positions, they are in the process of
formulating their ojectives. Dean
Kanovitz would like to have "more open
communications with students" and
improve the scholarship and student
recruiting process with the end of
attracting the most qualified applicants.
Brandeis Brief _________ _
(Continued from Page 5)
manufacture. M. Jager, supra note I, at 5-22.3 -
22.6.
12. See, e.g., M. Jager, supra note I, at 2-1- 18,
which traces the historical development of trade
secret protection in Great Britain and the United
States.
13. Kewanee Oil, 416 U.S. and 476.
14. Of course, the defendant's actions may in
some cases give rise to other causes of action .
Therefore, the owner may have a claim for breach
of contract in the case of an employee, or trespass
in the case of industiral espionage.
15. Unlike the law of patents, a trade secret need
not be reduced to workable form. Therefore, trade
secret protection is available for ideas, as long as
the owner of the idea maintains it as a secret.
Ropski & Kline, A Primer on Intellectual Property
Rights: The Basics of Patents, Trademarks,
Copyrights, Trade Secrets and Related Rights, 50,
Albany L. Rev. 405, 431 (1986).
16. U.S. Const., art. I, § 8, cl. 8.
17. 383 U.S. I, 19 (1966).
18. ld. at 19. The applicable statutory provision
is 35 U.S.C. § 103, which set out the requirements
of nonobviousness.
19. During the pendency of the application, the
PTO holds the application in secret.
20. Turner, The Patent System and Competitive
Policy, 44 N.Y.U. L. Rev. 450, 457-58 (1%9).
21. M. Jager, supra note I, at 6-5.
22. Of course, it is quite likely that in time
someone else will discover the trade secret
independently. Indeed, it has been suggested that
most inventions are inevitable. See Kewanee Oil,
416 U.S. at 490-91, and the sources cited therein.
However, there are also instances in which this did
not occur, and the trade secret died with the
owner. See Comment, A Market Oriented
Revision of the Patent System, 21 UCLA Law
Rev. 1042, 1045 n.7 (1974) (the process for making
Damascus steel, which was lost for several
centuries.)
This failure to consider the public interest is a
natural attribute of the tort law origins of the law
of trade secrets. Tort law exists primarily to
protect the interests of those injured through the
actions of others. The primary focus, then, is on
those parties involved in the lawsuit. The patent
and copyrights laws, however, are designed
primarily to protect the public interest in
innovation . See Kewanee Oil, 416 U.S. at 480-81
(patents); Twentieth Century Music Corp. v.
Aiken, 422 U.S. 151, 156 (1974) (copyrights).
23. Indeed, this overlap prompted the Sixth
Circuit to find a state's trade secret laws
preempted by the federal patent laws. Kewanee Oil
Co. v. Bicron Corp., 478 F.2d 1074 (6th Cir.
1973), rev'd 416 U.S. 470 (1974). The Supreme
Court's decision reversing the Sixth Circuit relies
heavily on the notion that there is little incentive
for the inventor to opt for trade secret protection
over patent protection.
24. The third broad category of intellectual
property, trademarks, need not be included in this
analysis.
25. 17 U.S.C. § 102(a).
26. 35 U.S.C. § 101. The only exception to this
rule are design patents. An inventor may obtain a
design patent for an innovative design; provided
that the design serves no utilitarian function. 35
U.S.C. § 171; Design patent protection, however,
is available only for the design of an article of
manufacture; not for works of art. id.
27. Ropski & Kline, supra note 16, at 424 (1986).
This requirement derives from 17 U.S.C. § 102(a),
which established the two requirements for
copyright protection; namely, (a) that the work of
art be original, and (b) that it be fixed in a tangible
medium of expression.
28. Kunstadt, Can Copyright Law Effectively
Promote Progress in the Visual Arts?, 25
Copyright Law Symposium 159, 160 (1980).
29. See Kitch, supra note 27.
6 E. Lipscomb, Walker on Patents 481-82 (ed
ed. 1987). The state of mind of the infringer is not
entirely irrelevant in an infringement action,
however. If the patentee fails to provide notice of
the patent in the statutorily-mandated form, he
can not recover damages form the infringer for the
period prior to commencement of the suit. Id. at
482-83. In addition, laches can be a defense to an
infringement action. 7 E. Lipscomb, Walker on
Patents 470-72. To the extent that the state of
mind of the infringer, is an element of this laches
defense, the state of mind does have some bearing
on the patentee's rights.
31. Kunstadt, supra note 32, at 163. Take, for
example, this article. Someone, call her Ms. X,
could conceivably prepare a piece that was word­for-
word identical to this article. This in and of
itself would not give me the right to recover from
Ms. X. Instead, I would need to show that Ms. X
copied the article.
As might be expected, however, the fact that the
works were identical certainly makes one suspect
that copying has occurred. Indeed, under the
current case law, I could establish a prima facie
case of infringement against Ms. X if I could show
that, in addition to the substantial similarity of the
works, Ms. X had access to my article prior to the
publication of hers. Arnstein v. Porter, 154, F.2d
464, 468 (2d Cir. 1946).
32. Obviously, the analogy is imperfect. For
example, the tort doctrine of strict liability would
allow recovery against one who causes injury
regardless of his state of mind. I use the "tort"
comparison more as a metaphor than as a strict
analogy.
33. In order to gain trade secret protection, the
owner must treat the innovation as if it were secret.
Under the copyright laws, the author must also
take steps to prevent uncontrolled public
disclosure. Failure to protect the work in this
manner can result in the loss of copyright
protection.
34. One might argue that Congress intended that
inventions should not be entitled to any protection
whatsoever unless they are a substantial
improvement over the state of the prior art. This
argument, however, is essentially an argument that
the patent laws preempt state trade secret laws.
After the Supreme Court's decision in Kewanee
Oil, this line of reasoning is forestalled until and
unless Congress indicates to the contrary.
35. Indeed, many patentees use trade secrets in
just such a fashion. When an inventor develops a
patentable invention, he will often develop various
supplementary processes and devices which are
required to make the invention economically
viable. Although these processes and devices may
not themselves exhibit a degree of originality
satisfying the requirements for a patent, they
nevertheless make the patent more valuable.
Accordingly, the inventor will often strive to
maintain these supplementary inventions as trade
secrets.
36. This is not to suggest that the systems are
perfectly symmetrical. In order to achieve actual
symmetry, a body of law would have to be
developed under which "property-based"
protection was afforded to highly significant
works of art.
37. This is not to suggest that the trade secret
laws are perfect. Indeed, as discussed above, trade
secret protection is fundamentally different than
patent and copyright protection due to its
theoretically infinte term. Because of this, there is
no guarantee that society will ever reap the benefits
of the secret. This indicates that Congress could
"fine tune" the trade secret laws to put them more
in line with the patent and copyright laws. The
exact nature of this "fine tuning," however, is
beyond the scope of this article.
Alumnus to appear
on national talk show
Ron Hines, a 1987 graduate of the law
school, will appear on national
television to discuss one of his cases
involving a couple who engaged a 15
year old as a surrogate father. The case
has come into national prominence
because of its right to privacy and
reproductive implications. The
discussion will be aired on the Sally Jesse
Raphael Show on· October 5 at 9:00
a.m.
Louisville Law Examiner, October, 1989 7
Admission By Performance-------
(Continued from Page 1)
and diversity of a law school class.
The traditional criteria to which
Professor Wren refers are the LSAT
score and undergraduate grade point
average (GPA) necessary for automatic
acceptance into law school. Each year
the Admissions Committee develops an
index figure cutoff for that particular
year's applicants. (Only approximately
35% of the 1989 applicants made the
cutoff, according to Wren). Since an
applicant's LSAT score and GPA are
the most heavily weighted variables in
the index formula, a deficiency in one or
the other could very easily result in a
rejection letter.
wouldn't have a chance to go to law
school," she answered, adding that her
LSA T scores were low.
Wren believes it's worth it for the
School of Law, too. "Law is a very
general profession,'' he said.
"Admission by Performance allows us
to pick out people with special talents
that could be particularly valuable to the
law profession."
* * * * *
Once in law school, how do
Admission By Performance students
compare with those admitted under
traditional guidelines? How many are on
probation after the first semester? How
many receive honors, book awards?
.How many drop out? How many
graduate? What is their success rate on
the bar exam? Do those admitted with
low LSA T but acceptable GPAs fare
better than the reverse?
There are some unanswerable
questions concerning the long term
effectiveness of the Admissions By
Performance program. To remedy that
situation, and possibly to alleviate any
possible skepticism concerning the
program, statistics are currently being
compiled on the program by Assistant
Dean Don Olson.
"There has never been a running
history on the Admission By
Performance students," said Dean
Olsen. "We have no way to track these
students through to the bar exam, no
way to flag them."
Dean Olsen is conducting his
statistical study at the request of
Professor Linda Ewald who wa.s recently
named the chairman of the Admissions
Committee.
According to Ewald, the evaluation is
not being conducted in response to any
negative reaction concerning the
program's effectiveness but rather is a
part of "greater package" of self-study
being done for the entire student body.
"What we want is a better picture of
the applicant pool," said Ewald who is
currently writing a self study on the
admission processes. "The committee
needs to know what kinds of students
are most likely to succeed.''
As far as the Admission By
Performance program is concerned,
particular variables such as LSA T scores
and GPAs will be tracked to give the
committee a feel for which are the better
indicators for success in law school.
Olson plans to have his figures
completed by September, then the
Admissions Committee will begin its
analysis.
"Personally, I do not envision ever
doing away with this program," said
Ewald. "My gut reaction is that the
program is a good one. But we will
certainly continue to look at it every
year."
Wren says the process of pulling
applicants from the rejection pool and
offering them a second chance through
the performance program is lengthy and
tedious. Several factors affect the
decision. An applicant's minority status
is weighed heavily since one of the major
objectives of the program when initiated
was to increase minority enrollment. An Opportunity To Prove Herself
The committee looks for applicants
who have distinguished themselves in
other areas. "One of our applicants had
a music engineering degree, an MBA
and was a computer expert," said
Wren. "We favor that kind of person."
Honor Student Praises Admission Program
The committee also favors the older
applicant for the program. The person
who has been out of school for lO years
particularly the older woman who is
retur-ing to school after raising a family,
is a good candidate, according to Wren.
Approximately 40 such applicants are
chosen each spring and invited to
participate in the Admission By
Performance program in the summer.
Those participating pay a set fee and
take two non-credit classes. The classes
are conducted like traditional first year
classes with the traditional final exam
rounding out the session.
Unlike "real life," however, there is
no possibility of probation following a
botched exam. Only those students who
receive a 70 or better on both exams are
allowed to join the incoming first year
class. This summer 40 percent of those
still enrolled in the program at the time
of the exams passed.
For some of the program's
participants, the summer represents a
calculated risk - of time and money.
"It's a real test of commitment," said
one student midway through the
summer. Not only did she invest a
substantial amount of money in tuition
and books, but, coming from another
town, she had to commit to a year's
apartment rent. "And I don't even
know if I'll make it," she said.
Is it worth it? "Sure, otherwise I
By Deborah Patterson
Night Associate Editor
At the end of her first semester in law
school, Anne Leitsch had a grade point
average of 3.4, was ranked second in her
evening division and third overall. She
also received a book award for earning
the highest grade in Torts I.
Six months earlier she was seated in
the Admission By Performance summer
classes trying to convince the
Admissions Committee that she had
what it takes to go to law school.
"I knew I could make it. I just
couldn't get it across to the
Committee," said Leitsch who is now a
second-year day student.
Leitsch is just the type of person the
Admission By Performance program is
designed to catch. Her admission
application showed a high
undergraduate GP A but a low score on
the LSA T. Leitsch admits that she, like
many others, simply does not do well on
standarized tests.
Leitsch realizes that without such a
performance program which allowed her
to prove herself she would not be in law
school today. Consequently, she is one
of the program's biggest supporters.
Most who are admitted through
Admission By Performance are not so
eager to identify themselves much less
speak out for the program. There is a
perception that this group is somewhat
less qualified than those students who
enter law school through traditional
Lou Zimmerman discusses the finer points of the SBA Polo Match with LuAnn
Loberger.
methods, according to Leitsch. But,
surprising enough, she finds the attitude
more prevalent with the student body
than the faculty.
"I respect the faculty enough to know
they won't treat me differently," she
said, "but the students tend to treat us
like second class citizens."
"I really don't feel any less qualified.
I have proved myself and have nothing
to be ashamed of," she said, adding that
she wished more participants would
come out to support the program that
allowed them to be here and stop
''hiding behind the walls.''
As for the summer experience itself,
Leitsch said that the accompanying
stress was of a different sort than found
in regular classes. "You realize that if
you fail, you're going to be picking out a
new career," she said.
The competition factor is different,
too. Students are not really competing
with each other, she said. There is a real
bonding within the class. Everyone helps
each other. "It's like we're all going to
make it," she said.
But Leitsch does not feel that
everyone should make it. And if she
could give one criticism of the program,
it would be that it needs to be tougher.
"I found the classes I took were much
easier than actual law school," she said.
Leitsch said that 24 passed out of her
~lass and unfortunately a lot of those
ended up on probation at the end of
their first semester.
The Admission By Performance
program screens applicants in two areas:
level of ability and level of commitment.
Leitsch admits that some law school
applicants have obvious acceptable
levels of ability but questions the second
area. "It would be nice to have
something to evaluate the level of
commitment of every student applying
to law school," she said.
If it were feasible to have every
applicant go through an Admissions By
Performance type program, there might
be a lower drop out rate that first year of
law school, according to Leitsch.
"I had four people in my row drop
out before finals the first semester," she
said. Those spots could have been filled
by four potentially successful candidates
on the waiting list. "I'm not sure that's
fair."
She also thinks some kind of summer
program would give the older student
returning to school a chance to measure
his or her commitment.
As for herself, Leitsch is just thankful
that the Louisville School of Law has a
program such as Admission By
Performance that gives applicants in her
situation the opportunity to prove
themselves. Otherwise, she would have
been just one of those that ·slipped
through the cracks of the traditional
admission process.
Alumni Appointed To Federal Advisory Committees
J. Vincent Aprile II ('68) was
appointed to the Federal Courts Study
Committee by Chief Justice William H.
Rehnquist in December of 1988.
The Committee includes
representatives of the Executive,
Legislative and Judicial branches. It will
examine the problems faced by the
federal court system and form a long
range plan for the federal judiciary.
Aprile is presently General Counsel
and Assistant Public Advocate for the
Kentucky Department of Public
Advocacy.
U.S. Attorney Joe Whittle ('55) was
named to the Attorney General's
advisory committee by Attorney General
Richard Thornburgh last Decemter.
The committee advises the Attorney
General on all policy matters and is
formed of sixteen U.S. Attorneys.
Whittle is the chiarman of the financial
litigation subcommittee, which deals
with all issues related to the collection of
money by the government.
Whittle was appointed U.S. Attorney
by former President Reagan in February
of 1989.
8 Louisville Law Examiner, October, 1989
.. And Loses
'87 Grad Fights City Hall
By Vince Heuser
Editor-in-Chief
While official vehicles occupy metered
spaces without paying the tolls, average
citizens who visit the area of the Hall of
Justice in downtown Louisville must
search for parking spaces and often
must park blocks away from their
destinations. One University of
Louisville School of Law alumnus
decided to fight for justice for all.
Vicki Carmichael, past president of
the Student Bar Association, refused to
pay five overtime parking tickets and
took her day in court in a public-spirited
campaign against the city's parking
meter policy. Carmichael believes that
allowing official cars to park without
paying the parking meter is selective
enforcement and is unfair. ·
Despite being allowed to hear
testimony about selective enforcement,
the jury in the Jefferson District court
found her guilty of all five counts of
overtime parking and fined her $100
after deliberating a mere 15 minutes.
Louisville Public Works Department
meter officers do not ticket police or
official cars or cars with city parking
permits when these cars are parked at
expired meters. The purpose of this
policy is unclear since there are official
parkings lots in various areas around
downtown Louisville. In the area of the
Jefferson County Hall of Justice, where
the parking problem is most evident,
there are several official lots within one
block. Still, police and official vehicles
occupy most of the available on-street
parking around the courthouse.
Jefferson District Court Judge
Richard Fitzgerald instructed the jury
that selective enforcement is not a
defense to the parking citations.
Carmichael's attorney, Danny Karem,
argued that city parking ordinances do
not exempt police officers and that a
state law that allows police to park
where others cannot doesn't include
expired parking meters. Although
admitting that officers and officials on
official business would be exempt,
Karem argued that there is no way to tell
whether they were on official business.
Carmichael, a 1987 .,raduate of the
School of Law, was a clerk for Supreme
Court Justice Cha1 · es Leibson and on
official business when she received the
tickets.
She says she will appeal the decision.
Vickie Carmichael is appealing her loss
to city hall.
Louisville Law Examiner
School of Law
University of Louisville
Louisville, Kentucky 40292
Mentor Program
(Continued from Page 3)
necessary to prepare students for the
profession. It's a great assistance to the
School of Law to have this program in
place. It introduces students to the
practical aspects of the practice of law,''
Dolson said. He also indicated that an
evaluation of last year's program
showed positive student reaction.
"Students are very anxious to get into
the program," he said.
The mentor program is governed by a
seven member committee of the K.B.A.
The volunteer mentors must have five
years of Kentucky practice experience.
Joltn M. Hllrltln Louis D. Brtmd~is •
·~~ · Louisville·
Law Examiner
Number 15
Dean Lewis Announces
Resignation
.............. story page 1
New Associate Deans
Named
.............. story page 2
Editorial
Ban the Ban
..................... page 2
Cover Photo
October, 1989 Number 1