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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
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Title | Louisville Law Examiner 15.1, October 1989 |
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 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 |
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 | 1989-10 |
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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