John M. Harlan Louis D. Brandeis  Louisville Law Examiner Serving the University of Louisville Law School Community 
Volume 3, Number 5 Louisville, Kentucky November 15, 1977
 Chief Justice Elected by
State Supreme Court 
By Jeannie Baker
 A friend of the new Chief Justice of the 
Kentucky Supreme Court described as
 a distinguished, courteous, pipe-smoking 
scholar. The description fits John S. 
Palmore to perfection. While the silver­haired
Chief Justice was only recently
elected to this position, he should have no
problem in assuming the role, as he filled
the equivalent position on the Kentucky 
Court of Appeals twice before 1966 and
 1973.
Desiring to get back to a small town,
Chief Justice Palmore left Louisville upon
graduating from U of L's Law School and
went into private practice in Henderson, Kentucky. With two intermissions, to serve the Navy during World War II and the 
Korean War, he remained in Henderson 
until 1959. During this time Judge Palmore 
served as City Prosecutor, City Attorney
and Commonwealth Attorney. In 1959, he
was elected to the Kentucky Supreme Court
and upon his retirement in 1982, will have
served 23 years on the highest court in the
state.
When asked what the major goals were
of the newly established Kentucky Supreme
Court, Judge Palmore replied, "The
biggest problem that we have right now is
to get the district courts into operation.
There is a big upheaval in the system and
from the standpoint of public relations,
this is the most important court in the
system because this is where more people
will be in court.''
Judge Palmore explained that there are
two major problems with the new district
courts. The first is seeing that the district
courts are properly financed . The second is
seeing that the mechanical problems such
as where will these courts be housed,
where will the judges' offices be placed,
and what the judges will have in the way of
help, are solved.
Despite its problems, the Chief Justice is
pleased with the change in the state court
system. Even though he knew that the
establishment of the district courts would
be politically disrupting, Judge Palmore
stated, "With so many restrictions being
imposed by Federal law, a person just
almost has to be a lawyer to be any kind of
ajudgeatall."
Another major objective ·of the new
Supreme Court, said Judge Palmore, "is to
bring about more understanding of courts
including this court. I'd really like to bring
it down to earth. I'd like for people not to
look at us as being so aloof and remote and
cold, and I think there is a great deal that
can be done there. But how can you get
a hold of a wet sow? Well, I don't know
exactly how to do it, but I'm going to talk
about it as much as I can and meet with
people as much as I can, and I'm certainly
going to be accessible to the press.''
Plea Bargaining Tactics Challenged
Chief Justice JohnS. Palmore
Looking back over his years on the
bench, the Chief Justice stated that while
he preferred civil to criminal cases, the
constitutional cases were probably the
greatest challenge of all. He went on to
explain, "I'm not saying we get them all
right. You know, that's the imponderable,
who's right and who's wrong. But there's
where the greatest challenge is and there is
where a person can use his experience in
observing the whole panorama of things
over a lifetime of his practice and there is a
case also, in which a man has to look into
his own mind and says, now are you
. Circulation 3700
Photo by Jim Kln1,
Ky. Dept. of Public Information
prejudiced about this? He must say, wait,
this is your idea but you're not the guy
that's going to have to live with this stuff
tomorrow, so think about those people."
Chief Justice Palmore ended by saying
that when he finished out this term, he
wanted to spend some time writing about
the years he had spent on the court, why
courts do things and why they do things the
way they do. "Education is the answer,"
he stated, "everybody needs more
enlightenment, then we're better able to see
problems as they really are and better able
to evaluate them."
U of L Lecturer before U.S. Supreme Court
Law lecturer J. VIncent Aprile currently has a
case on appeal to the United States Supreme
Court.
By AI Parsons
"Is the Commonwealth's Attorney
prohibited from bargaining for a plea of
guilty by threatening to bring an additional
indictment if an accused does not accept a
plea bargain offer?"
Mr. J. Vincent Aprile, University of
Louisville Law School lecturer, argued this
question in the negative before the United
States Supreme Court, November 9, 1977.
Representing Paul Lewis Hayes, Mr.
Aprile urged that such threats were im­permissably
vindictive and violated his
client's due process rights. When earlier
appeals in state courts failed, Hayes sought
a writ of habeus corpus in the Federal
District Court. The writ was denied and
Hayes was permitted to appeal to the Sixth
Circuit Court of Appeals. In an opinion
adopting Mr. Aprile's arguments and
reported as Hayes v. Cowan, 547 F2d 42,
Mr. Hayes' conviction under the recidivist
statute, K.R.S. 431.190 was reversed. The
. opinion was written by Judge Wade H.
McCree, Jr., now United States Solicitor
General.
The facts of the case disclose the
seriousness of an issue not apparent on the
face of such plea bargaining practices.
Hayes was indicted for forgery of a check
in the amount of $88.30 and during the
pretrial conference the prosecutor offered
to recommend a five-year sentence is Hayes
would plead guilty. If Hayes refused and
insisted on receiving a full trial, the
prosecutor threatened to return to the
grand jury for another indictment under
the recidivist statute as Hayes had two
prior felony convictions. When Hayes
exercised his right to trial, the prosecutor
kept his word and procured an enhanced
indictment. After conviction, Hayes was
given the mandatory life sentence for an
offense that originally carried a maximum
sentence of 10 years.
Mr. Aprile, the state Assistant Deputy
Public Defender, entered the case after the
appeal brief to the Circuit Court had been
filed and just in time to give the oral
argument before the court. The attorney
previously handling the case had left the
Public Defender's office. In an interview
shortly before his appearance before the
Supreme Court, Mr. Aprile acknowledged
the importance of plea bargaining in the
criminal justice system, but stated that the
Supreme Court had never countenanced
the use of coerced confessions or guilty
pleas.
It is Mr. Aprile's contention that the
court-imposed limits to the tactics which a
prosecutor may use in plea bargaining with
defendants were exceeded in this case. Mr.
Aprile's brief traced the history .of the
Supreme Court's development of the
principle that a defendant who asserts his
procedural rights must be treated in a way
that avoids any suggestion of vindictive or
retaliatory motive. He asserted that the
court has held that this is a due process
requirement.
Such rights first developed to prevent
harsher sentencing upon retrial after
successful appeals unless permissable
reasons therefore were affirmatively
shown, Mr. Aprile related. He went on to
state that this principle was extended to
situations where the defendant was
(Continued on page 6)
2 Louisville Law Examiner, November 15, 1977
itnuisuillt 1£aw i.Examiner
18
EDITORIAL B?ARD
Kenneth W. Golliher, Editor-in-Chief
Christopher P. Rivers, Managing Editor
Valerie Salven, Associate Editor
Jeannie Baker, Associate Editor
Alan Parsons, Business Manager
Judge MARLIN M. VOLZ, Advisor
46
STAFF
Kevin Callahan, News Editor
Sara Scott Moore, City Editor
Christopher Seaman, Projects Editor
. Susan Barnett, Articles Editor
Stephen Wolford, Brandeis Brief Editor
Jerome A. Mirabito, Executive Editor
Mark Little
Rookie Medaris
Phillip R. Warf
Sherry Willman
GreggYopp
Professor ALBERT T. QUICK, Consultant
The Louisville Law Examiner is published nine times during the academic year in the interest
of the University of Louisville Law School community. Unsigned editorial opinions are those
representing a majority vote of the editorial board and do not necessarily express the views of
the School of Law or the University of Louisville.
Address all communications to the Louisville Law Examiner, School of Law, University of
Louisville, Louisville, Kentucky 40208. Phone 502-588-6399.
Editorial
Brandeis Brief
Obscenity-Pornography Series
Commission Report: A Dissent
Mr. Keating received his J.D. from the University of Cincinnati and was
admitted to the Ohio State Bar in 1948. Jfl 1958, he was admitted to practice
before the United States Supreme Court.
Mr. Keating is founder and president of Citizens for Decency Through
Law, Inc. He has assisted in the prosecution of pornographers, served as an
exper! witness in obscenity cases, filed numerous amicus curae briefs in pro­secutwns
and appeals at all court levels across the country, and testified
before congressional as well as state and local committees and sub­committees.
Obscenity and Pornography.
He has been the subject of numerous articles appearing in such publica­tions
as The Wall Street Journal, National Observer, and Newsweek.
Charles H. Keating, Jr.
The final report of the majority members of the Presidential Commission on
Obscenity and ~ornography was issued more than seven years ago.
T~e Senate, m an unprec~dented action, rejected it by a sixty-to-five vote; the
Pr~stdent. r~fused to accept 1t; the Sup_reme Court has never recognized it in any
of 1ts declSlons; and numerous authonties have questioned the credibility of the
research methods and results.'
Yet the report is trotted out every time someone wants to advocate the "Danish
solution" (repeal of all laws against obscenity) or tries to prove that pornography
CLE K eep S haHsnaoveinfgfe scatt. through the Commission meetings, having fought to obtain copies
of the research reports, and having finally gone to Federal Court to get those
documents, I can only shake my head in frustration and disbelief.
L U D My Reader's Digest article (January, 1971) outlines quite clearly why I have
My purpose in this article is to open some of the Commission files to give the a wyers p to ate long called the report "a Magna Carta for pornographers."
------~--------- ---------~------~------J~:ade a.lool<-at.material which focuses more-Gn the Gfeei-bHity of the researchers
"Law must be stable," said Roscoe the bar were encouraged to attend the th!l!l ~:m the re~earch itself. Many o~ the projects could be, and have already been,
Pound, "and yet it cannot stand still." program offerings to retain their licenses, cnt1c1zed on JUSt about every pomt; but because of space limitations I am
Perhaps with a similar idea in mind, 58 attendance and funding for such a project concentrating on certain facts which merely substantiate my contention that the
percent of the members of the Kentucky would obviously be greater than for a Commission, as appointed, was a run-away Commission whose philosophical
Bar Association responding to a recent program using less persuasive incentives. bent was not compatible with its creator, Congress, and that it actually worked
· c
Economic and Opinion Survey said that With a mandatory program and greater against the directions of Congress.
they would favor a mandatory program of funding a full-time staff could work on The following examples are but a few of the many that can be found in the
Continuing Legal Education (CLE). program offerings and make im- Commission files.
Lawyers, perhaps to a greater extent provements in the state-wide CLE set-up. Dr· W · Cody Wilson, a social psychologist, was the Executive Director of the
than the members of any other profession, If all CLE seminars in the state were video- Commission and, as such, had responsibility for coordinating all of the activities
need to keep up with new developments in taped, a state "library" of seminar tapes of the Commission and the staff. One of his chief responsibilities was to work
their field. The law is constantly changing could be assimilated and made available to closely with contract researchers in order to plan and review the methodology of
and it is capable of more frequent and an attorney whenever he or she en- research projects. Many times since the Commission ended its work Dr. Wilson
pervasive change than are the principles of countered a problem which required an has testified as a defense expert in favor of persons indicted for ~iolating ob­other
disciplines. in-depth understanding of an area of the scenity laws. Almost invariably, Dr. Wilson cites the Reifler Study as a conclusive
What was "law" to the class of '43 may law which had been the subject of an earlier and long-term research project on the subject of satiation. He has never indicated
rate notation only as an historical anecdote seminar. In the long run, this could save that it's results were subject to serious doubt or question. However, allow me to
in a four-point type footnote in a current hours of independent research and reading. quote from a letter dated May 12, 1969, written by Dr. Wilson, and .addressed to
text. This type of legal "culture shock" The public relations aspects of such a G. William Jones, another Commissioner:
will probably accelerate in decades to program are obvious. If the public knows "The staff agrees with you that there are problems with the Reifler et al.
come. A practitioner today may be able to that attorneys are concerned about the proposal and we intend to talk with them in order to try to get it tightened. We do
get by without any regular review, but the competence of each member of the bar, it hav~ ano~her complementary I?roposal_on the satiation effects that is supposed to
lawyer of tomorrow will be more and more could encourage greater confidence in the be m th1s week. My guess lS that 1t will have problems, too. Almost any
dependent upon regular draughts from the bar as a whole. laboratory research of this kind is going to be somewhat 'sloppy.' I think that we
fountain of legal knowledge. Considering the rising professional will have to do something in this area and that we must work with the proposals
Wisconsin adopted a mandatory plan of liability insurance rates for lawyers, this that we have to make them as good as possible.''
CLE in 1976 after lawyers in that state type of pursuit would constitute a good I have never heard Dr. Wilson in public, from the witness stand or anywhere
voted three to one in favor of a mandatory argument for a rate reduction or at least a else, refer to the Reifler Study or it's results as "sloppy" or subject to questioning
program in a bar referendum. The revised reason for holding rates steady. from any other perspective. Furthermore, the report of the Commission does not
rules for the Wisconsin Supreme Court There has always been a sort of running reveal such an attitude.
now state that the purpose of such a plan is feud as to whether law school represents a A l~tter dated Septem?er 4, 1969, on letterhead of the University of North
that CLE " ... is necessary to the Bar to bonafide academic pursuit or just a fan- C!lrohna (where . th_e Retfler Study was conducted), authored by Dr. Morris
maintain delivery of quality legal services cified skills course, i.e., "Once you've Ltpton, a Commtsswn member, and addressed to Dr. Wilson is also revealing.
to the public." Other states have adopted learned the ropes that's all there is to it." Before I quote from it, you must remember that, in the vocabulary of the staff
mandatory plans or are now considering Lawyers are particularly fond of stressing and certain Commission members, an "active proponent of censorship" was one
them. The recognized importance of CLE the academic aspect after they've reached who supported laws restricting the dissemination of obscenity. With that ob­is
shown by the fact that over 40 states now professional success, but that knowledge, if servation, I will quote the middle two paragraphs of this four paragraph letter as
have some type of organized CLE program it can be construed as such, wasn't meant follows (emphasis added):
for members of the bar. to be a lifetime supply. If a lawyer is a "I am becoming increasingly concerned about the disaster that will befall us if
professional, rather than just a user of we do not have some reliable estimates of what community standards actually
Mandatory CLE may not work in every tools, continuing legal education as a goal are. As I see it, the two primary legs that support the proponents of active cen­state.
An ABA report suggests that it is cannot always be achieved through sorship are 'offensive to community standards' and tcausal' to anti-social
impossible to compare any two state CLE courtroom experience or thumbing through behavior. We need data on both of these points very badly;
programs because of differences in the the Recent Decisions section of a loose-leaf . For. what it's worth, our 24 subjects, all over 21 and representing a greater
territorial area served, the amount of time series. dtverstty of people than I had expected, ranging, for example, from Wallaceites
the program has been in operation, the size Basically, the suggestion for mandatory to McCarthyites, from about a half dozen people who are going off to Officer's
of the staff (voluntary or full-time) and CLE is simply a suggestion tbat lawyers do Training School in the Marines, Navy or Army to a couple of pacifists, have at
other variables. what is in their own best interests. More least one uniform opinion about the priority of problems of obscenity and
It might be that a program which could than that, it is a suggestion which could pornography in relation to the other problems facing the nation and the world.
become self-supporting in one state would help assure that the public receives the level Without exception they consider it to be a very low priority item; some were
not work in another. But if all members of of legal services that they need and expect. (Continued on page 8)
Louisville Law Examiner. November 15, 1977 3
Residency Points System Questioned by SBA
by Greg Yopp
The Student Bar Association (SBA) at
the School of Law has recently established
a committee to analyze the School's
residence credit requirement. The com­mittee
has been given the responsibility of
thoroughly examining the current residence
credit regulation, and according to Scott
Preston, President of the SBA, ''see where
they feel it falls short and then write a new
residency point requirement to submit to
the Administration."
The committee was formed as a result of
some student complaints about the
residence credit requirements. 1 ohn An­dris,
a night representative to the SBA and
chairman of the newly formed committee
received some complaints as to why all
night students are classified as part-time
students. "There was a general feeling in
the class that the residency requirement was
unfair," said Andris.
Following up on the complaints, Andris
telephoned Fredrick R. Franklin, Staff
Director of the American Bar Center, to
find out exactly what the American Bar
Association requires in terms of residency.
In a written reply, franklin said that the
ABA "defines a full-time student as one
who devotes substantially all of his
working hours to the study of law. The
Council of the Legal Education Section has
interpreted this to mean a student who is
gainfully employed for not more than 15
hours per week." He went on to say, "Our
standards speak in terms of full-time and
part-time, rather than day and evening.
Therefore, while law schools usually have
full-time programs during the day and
part-time programs in the evening, such a
distinction is not mandated by the Stan­dards."
The Standards referred to by Franklin
r the Standards anrLRules of. ocedu
for the Approval of Law Schools by the
American Bar Association. Standard 305
says that a law school must require as a
condition of graduation, the completion of
a course of study in residence of not less
than 1200 class hours, extending over a
period of not less than 90 weeks for full­time
students, or not less than 120 weeks
for part-time students. 'In residence'
means attendance at classes in the law
school. 'Full-time student' means a student
who devotes substantially all of his
working hours to the study of law."
Standard 305 goes on to say, "To receive
residence credit for an academic period, a
full-time student must be enrolled in a
schedule requiring a minimum of 10 class
hours a week and must receive credit for at
least 9 class hours and a part-time student
must be enrolled in a schedule requiring a
minimum of eight class hours a week and
must receive credit for at least eight class
hours."
• SBA president Scott
committee to establish a workable alternative to
the Law School's residency points system.
The University of Louisville School of
Law residence degree requirements state
that a student must complete at least 84
S1eL.hours in residence, extending over
at least 90 weeks for full-time students
(those enrolled in the day division), or 120
weeks for part-time (those enrolled in the
night division). Each full-time student must
complete six semesters in which the student
has enrolled in and passed at least ten
semester hours. Each part-time student
must complete eight semesters in which the
student has enrolled in and passed at least
eight semester hours.
Dean's Dicta
Delln Harold G. Wren
.Elsewhere in this issue of the
Examiner there appears an analysis
of Regents of the University of
California v. Bakke, the most im­portant
case to come before the
United States Supreme Court in the
last two decades. The resolution of
Bakke will have a profound in­fluence
on affirmative action
programs throughout the country.
For the past several years, our law
school, through its admission
process, has maintained a program
whereby disadvantaged students
would be given an opportunity to
obtain a legal education, and thereby
become eligible to take the Bar
examination and be admitted to the
Bar. Unlike some law schools, we do
not base our admissions solely upon
Law School Admission Test (LSA T)
scores and cumulative grade point
averages (GPAs) in undergraduate
school. In law school admissions,
there are other qualities affecting all
applicants, such as motivation,
thoroughness, and leadership
potential, that are important in
predicting success in law school, and,
ultimately, in the practice of law.
While our Admissions Committee
uses the LSAT and GPA scores as a
starting point, it also makes an
evaluation of a variety of subjective
Advanced standing is not awarded for
heavier loads. However, fractional or
summer session standing will be allowed as
follows:
• If a student does not enroll in and pass
the appropriate minimum semester hours,
that student will only acculliulate a frac­tional
semester in residence in the ratio of
the semester hours enrolled in and the
appropriate minimum. The deficiency can
only be made up by completing an ad­ditional
semester than normally required
during which the number of hours enrolled
in and passed equals the deficiency.
·• Two summer sessions passed of at
least ten total semester hours is equal to
one full-time semester in residence. Two
summer sessions fully passed of at least
eight semester hours is equal to one part­time
semester in residence.
• One semester in residence in the part­time
division is equal to % of one semester
in residence in the full-time division.
When asked about the Law School's
residence credit requirement, Steven Smith,
Associate Dean of the Law School replied,
"You can be more stringent but you can't
be less stringent than the ABA
requirement. There is another ABA
standard that says accredited schools are
told they must seek to exceed the stan­dard."
"As U of L's requirement relates to a
limited number of students, it is more
stringent in that it is conceivable, in the
first year particularly this has happened,
that someone doesn't have outside em­ployment
and is taking more than ten hours
and is still in the part-time division. On the
other hand, it would be unfair for him to
take a limited course load compared to the
day student and get the same residence
credit. We require day students to take an
additional course.
"We pretty much permit people to
switch sections if they want to and there is
no excuse for them not switching sec­tions,"
he said.
"If the students in the part-time division
are doing it so their schedule will work out
nicely for them to work, they are not a full­time
student because we don't let full-time
students arrange their schedules so it works
out nicely for them to work."
factors which play an important role
in the final decision to admit an
applicant, place him or her on the
waiting list, or ultimately send a
rejection letter. In this subjective
consideration of factors other than
numerical scores, the Committee
takes into consideration the fact that
a candidate is disadvantaged.
In Bakke, Mr. Archibald Cox, in
answer to a question from Mr. Chief
Justice Burger about possible
alternatives to the quota 'system,
rejected our approach on the ground
that "the other alternatives
suggested simply won't work." 46
U.S. Law Week 3252. We submit
that this is not true. Indeed, the
method which we use (i.e., using race
as one of the factors in the selection
of students) was specifically ap­proved
by the Supreme Court of the
State of Washington in DeFunis v.
Odegaard, 82 Wash. 2d 11, 507 P. 2d
1169 (1973), vacated as moot, 416
u.s. 312 (1974).
In Bakke, Solicitor General Wade
McCree argued, on behalf of the
United States, that every
professional school must face the
problem of how to employ its
resources when it must apportion
scarcity. So long as this ap­portionment
is not motivated by
invidious racial purposes, this
Talking about the 15 working hour
maximum, Dean Smith said, "The 'less
than 15 hours' is subject to interpretation.
It says devotes substantially all of their
time to the study of law. One person's
interpretation is 15. I'm now told by some
of the ABA people that there is an in­creasing
number of schools that recognize
less. For example, New York law schools
recognize 10 hours · as the limit. 'Sub­stantially
all' is the phrase."
Scott Preston says that the forthcoming
proposal from the SBA, if accepted by the
Administration, would not affect many
people. "The of the people won't
unfair to day students if evening students got the
same residency points for a lighter workload.
notice, only those that are full-time at
night."
Preston thinks that the SBA proposal
has a fair chance of being accepted by the
Administration. "It's how we present it. If
on a very logical basis, on a business type
of approach, I don't see why not. What we
want to say is, this is where we disagree and
this is why. Not on a student to ad­ministration
level but man to man. We
need to get past student vs. ad­ministration."
decision, he said, is best left to the
professional judgment of the
faculties of the schools involved. 46
U.S. Law Week 3253.
Any quota system with respect to
law school admissions is not in the
best interest of legal education or of
our society as a whole. The Council
of Higher Education has imposed a
ten percent quota upon our school,
for students who are not residents of
Kentucky. So long as this is the law
of Kentucky, we must abide by it.
But a quota based on residence can
be as damaging to legal education as
any other quota, by depriving the
student of an educational environ­ment
where the student body is
representative of a cross- section of
our society.
The Admissions Committee has a
grave responsibility. Each year it
must determine who is to be ad­mitted
to law school, and, hence who
shall ultimately be admitted to the
Bar. While it may- and should­take
into consideration the fact that
a person may have been disad­vantaged
for racial, ethnic or
economic reasons, its ultimate goal
remains the selection of those who
will be best able to enter upon the
study of law and ultimately serve our
nation, state and community, as
members of the legal profession.
4 Louisville Law Examiner, November 15, 1977
KBA Polls State Attorneys
By Jeannie Baker
The Kentucky Bar Association published
the results of the 1977 Economic and -
Opinion Survey of the State Bar of Ken­tucky
in the October issue of Kentucky
Bench and Bar. The 1977 survey updated
and greatly expanded the 1967 economic
survey. The purposes of the survey were to
provide information on various forms of
law practices in Kentucky and to give
lawyers a look at today's practices and
trends.
The survey was distributed to Kentucky
lawyers with in-state roster addresses in
February and were due back by March 28,
1977. After editing, the surveys were
delivered to the Council on Public Higher
Education which supplied the computer
personnel and time to compile the data.
5,036 surveys were mailed to in-state
lawyers and, of that ·number, 1,895 or
37 .50Jo were returned. When surveys are
taken commercially in industry and adver­tising,
the return rate is approximately
19%, which is considered sufficient. In ad­dition,
when health surveys are taken of a
large community, the desired return rate is
over 33%. Hence, when comparing this
survey's response with others, it appears to
represent not only a significant figure, but
lends credence to the reliability and validity
of the results as well.
The basic statistical measure used in this
report is the median, defined as the middle
value of a statistical series arranged from
low to high. The median is used to
eliminate distortions caused by very large
or extreme values.
The survey begins with a profile of the
typical Kentucky lawyer (see Table 1).
According to this report, the typical lawyer
has _practiced nine years CQID.Pared with
the 1.967 report, this figure tends to suggest
a larger population of young lawyers
engaged in practice, with an increasing
number being admitted to the bar each
year. It is also noted that 18% of all
lawyers in Kentucky are salaried. The
largest group of all, however, is that of
lawyers who are partners in law firms; this
group constitutes 47%, or almost half of
all Kentucky lawyers. The second largest
group is that which is comprised of solo
practitioners, which represents 25% of all
lawyers in the Commonwealth.
TABI;El -"~
PROFILE FOR THE TYPICAL
KENTUCKY LAWYER
1~1
I. Media.~ Year~
Practie'ed Law
2. Clil'&sifjcation
of Practitioners
Salaried ..
Partner
Assoc.,
Sole
Pr r
Sole P c, Sharing
Off'tce Space
3. Number of
Attorneys in Finn
4. lilt of Hours
Bill. to Client
5. Median Net In·
come per Annum
6. Median Income
Per Annum
Salaried Lawyers
Praelltioners
7. Median Hourly
Charge for Service
-~:z·
ts;~
I50fe
3211Tt
lOOfe
21V.
1611Tt
1.88
$1.5,009
$12,369
. $16.026
$20.12
l08Je
$20.,000
$28.,000 .
'$4o~oo·
The median office size of practitioners
sharing space is three. Comparing this office
size to the 1967 survey results, which
showed a median size of 1.88, an increase
in lawyers per firm over the 10-year period
can be noted.
The matter of income is of primary
interest to most lawyers and other
professionals. The median income of
lawyers in Kentucky in 1967 was $15,009.
In 1977, the median income was $25,000.
The typical Kentucky lawyer, however,
spends the same percentage (30%) of this
gross income on overhead today as he did
in 1967.
There is a great deal of variation in the
income of lawyers in Kentucky. Further,
separation of salaried lawyers and private
practitioners produces a significant dif­ference.
For instance, the table shows that
the median income of salaried lawyers in
1967 was $12,369, whereas the median
income for private practitioners was
$16,026, almost 30% greater. The dif­ference
that exists today between the two
types of lawyers has increased to almost
40%.
The last notable comparison is that the
hourly rate has increased by as much as
100% in 10 years. Inflation and other fac­tors
have dictated the increase and future
increases are expected.
The general factors affecting Legal
Practice and Income which the survey dealt
with are:
Years in Practice- The median income
of any lawyer is obviously affected by the
number of years in practice. As Table 2
indicates, private practitioners who have
been practicing for 20 years may anticipate
a median income of $45,000, as compared
to a median income of $42,000 during the
11-15 ear period and $34,000 during the
9-10 year period.
TABLE2
MEDIAN INCOME BY CATEGORY
OF PRACTICE AND
YEARS ADMITfEDTO BAR
Years In Private
Practice Pract.
1, t 12,000
3,4 19,000
S,6 24,000
7, 8 26,000
9,10 34,000
ll-1"5{ 42,000
16-'20'' " 45,000
21-ZS ··45,000
26-30 41,500
31-35 40,000
36-40 42,000
41-4$ ~2.500
'46-S"Qt 28,000
OverSO \4,000
legal
Occ.
12,350
17,000
24,000
24,000
24,000
,_,37,500
432 000
<z~:ooo
30,000
3s,ooo•
35,000
Com.
bined
15,000
20,000
25,000
24,400,
Jo,cm
I •small number of responses~
Table 3 graphically portrays the general
theory of years admitted to practice as it
affects income. The lawyers income
reaches its peak at the 16-20 year level and
stabilizes until the 25th year, when a slight
decrease is experienced. The most
significant decrease occurs after the 36th
year.
Distribution of Salaried Lawyers - In
order to understand the economic position
of lawyers, consideration must be given to
the distribution of the total lawyer
population among the various fields of
law. Consequently, the survey notes, for
example, that 54% of all salaried lawyers
are in government or related fields, 13%
are in business, and 15% are in judiciary
positions.
City Size- Viewing Table 4, there seems
to be no significant difference in median
incomes o(a given field of law in different
populations. Population, therefore, is a
factor which has considerably less impact
upon median income than years in practice.
Small popullitions, those with less than
10,000 people, have a median income range
that is only $1,000 to $3,000 less than a
population of 200,000. The total picture of
median income as related to the size of the
city involved is one of relatively little
change and no particular consistency. This
would seem to suggest that other factors
such as years in practice, size of firm and
specialization are more important criteria
of the earning power of a Kentucky lawyer.
~'''•t[:-'" :l..\8( "'"
PRtv..('fEPRACTITr
INCOME BASED U S vt:ARS
ADMITTI::D TOPRACTIO:
Median Income
$12,000
$19,000
$24,000
$26.500
$34,000
.$42,000
$45,000
$45,000
$41,500
$40,000
$42,000
$32,500
$28,000
$)4,000
Ylllll'!i in Practk
1-2
M
5-6
7-8
,9,-.1,50 1I
16·20
21 -25
26·30
31 -35
36-40
41-45
46-50
Over 50
Firm Size - The size of one's firm is an
economic factor that can be controlled to
one's advantage. In the 1967 survey, Table
5 indicates that there is little or no dif­ference
between the median incomes of
those lawyers practicing in firms with three
lawyers and those with as many as 10
lawyers. At that point, however, there is a
significant increase in median annual
income from $30,000 to $43,000 for those
firms with 10 or more lawyers. This chart
also points to the advantage of the two or
three lawyer firm as opposed to the sole
practitioner. Between the one lawyer firm
a hree lawyerfirm, he difference is as
;has $7,000.
Form of Business - The form of the
lawyer's practice will have a direct effect
on median income. The survey gathered
information concerning percentages of
lawyers practicing in the various forms of
business. Table 6 shows that the part­nership
is the most prevalent form in which
law is practiced. Forty-seven percent of
those responding are in partnerships. The
next, most frequent form of practice, is the
sole practitioner, representing 25%, or
one-fourth of all practicing Kentucky
lawyers.
Not only is the partnership the most
prevalent form of practice, it is also the
most successful financially. The partner
has a median income of $40,000 whereas
the sole practitioner has a median income
of $20,000 and the associate's median
income is $14,000.
Type of Prl.ctite
Pri\'ate Median
Income
Median Age
Legal Occupation
Median lncome
\Median Age
Combined Practice
Median Income
!Median Age
~ ..•.. )#
Type of P~ttice
Private Median
Income
Median Age
Legal Occupation
100,1)00
$28,000
36
$22,000 ,
34
$28,000
37
10-
39,000
$28,00
36
$27,450
38
$21,000
32.5
$12,000*
29
Under
10,000
27,00
37
rM~~!a~Jrome $1 ~·~, ' s~ro
!Combined Practke
' Median Income $25,00 $25,000
Median Age 35.5 37
=:~= *Limited to ~rne respo~es.. -~~---
90,000 ~
$2.7.000
35
$21;000
34
$25,000
37
~:::<·.
Time Records - The 1977 survey sug­gested
controllable economic factors to
help improve the Kentucky lawyers
practice. One of the most viable is the
practice of keeping time records. Various
surveys, as well as the 1967 Kentucky
survey, have pointed out that the use of
time records will increase the lawyer's
median income. The median income for the
gro~p that always uses time records is $34,000,
whereas the group that never uses time
records has a median income of only
$25,000. Lawyers who frequently keep time
records receive median incomes of $25,000,
a difference of $9,000 when compared to
the group that always uses time records.
TA8Lt:5
1\ft:lliA~ 1~('01\fE
BASEI)l' PO'\ FIRM SIZE
Firm Size
Sole Practitioner
2lawyers
31awyers
41awycr~
5 lawyer<;
6-10 lawyers
M('dian lm:01n<·
$20,(100
$24.( ~ ){)
$27,00()
S30,POO
27.oon
$30.000
$4(),()()(1
S4J,Ofl0
Preparation of Monthly Profit and Loss
Statements - In addition to keeping time
records, another technique to increase
median income is preparation of monthly
profit and loss statements. 29% of all
Kentucky lawyers prepare monthly
statements and have a median income of
$37,500, while the remaining 71 OJo who do
not prepare them have median incomes of
only $26,724.
TABLE6
FORM O.F BUSI Nt:ss Pt-;RCt:NT AGt:S
Partner~ .A1~~' S I P 151Jlo;
t~I~P;:~~~ IOo/o
Associates lOVIoJ
Sole Practitioner with Associates 811>.l
Data Processing-Another adminis­trative
and economic tool is the computer,
or the data processing system. Advantages
for median income apply here as well. Only
10% of all Kentucky lawyers use such equip­ment.
The median income reported for those
who use data processing equipment is
$35,000, compared to only $27,000 for
non-users.
Itemizing - Although itemizing may not
increase your salary, it may well enhance
your reputation as a lawyer who tells it like
it is. Itemizing provides more detailed
records of past services for billing pur­poses.
The data indicates that 30% of those
responding always itemized services, while
43% frequently itemized, 21 OJo sometimes
itemized and 5% never itemized at all.
Telephone Calls - In most instances,
lawyers should charge for time spent on the
telephone. When in use, the device utilizes
the lawyer's most valuable asset, time itself.
Although many lawyers feel that they cannot
afford to charge for telephone calls, in fact
they cannot afford not to.
In its entirety the KBA's survey presents
a fascinating picture of Kentucky lawyers,
or at least several hundred of them. It
should serve as a primer for those who may
be considering practicing in the Com­monwealth
and as a benchmark for those
who already are.
Acknowledgement to the Kentucky Btmch
and Bar.
l.oui~vilh.• L:Jw Examiner. !'\ovember 15, 1977 5
• Change Ill CLE Proposed
by Valerie Salven
A proposal for a voluntary Continuing
Legal Education (CLE) program based on
a system of special recognition for par­ticipating
attorneys is currently being
considered by the Kentucky Supreme
Court. And the results of the recent
Kentucky Bar Association (KBA) economic
and opinion survey which showed that 58
percent of the Kentucky lawyers respon­ding
favored mandatory CLE may cause
the court to take a hard look at the merits
of a mandatory program.
Judge Samuel Steinfeld, Chairman of
the KBA Committee on Continuing Legal
Education, said that the results of the KBA
survey surprised him because of the
relatively low attendance at most CLE
seminars. "When you compare the at­tendance
with the total number of members
of the bar, it is infinitestimally small," he
said, noting that some seminars may at­tract
only 30 attorneys (see table).
The purpose of the proposal for a new
kind of voluntary CLE program in Ken­tucky,
Judge Steinfeld explained, "is to
offer rewards, 'carrots' so to speak, to
those who attend" CLE seminars. The
current proposal was worked out by a
group within the KBA Board of Gover­nors,
headed by KBA president-elect B.M.
Westberry, Judge Steinfeld noted.
The proposed voluntary plan would
permit .n attorney licensed to practice in
the state of Kentucky to qualify for a
"Continuing Legal Education Award" if
he or she attends a minimum of 60 hours of
CLE courses approved by the KBA within
a three-year period. The proposed plan
states that "the Award shall consist of a
dignified certificate suitable for framing
which attests to the educational ac­complishment
and which shall be issued
by the Kentucky Bar Association." In
addition, each holder of a valid, unexpired
award would receive a 25 percent discount
off the normal registration fee for the KBA
Annual Convention, and each September,
the KBA would publish an announcement
in state newspapers of the members who
earned CLE A wards during the preceding
educational year.
Judge Steinfeld suggested that a
drawback to either the voluntary incentives
CLE program or a mandatory program
would be added expenses that would have
to be made up by an increase in bar dues or
an additional fee for those who attend the
seminars. But Judge Marlin Volz, Director
of CLE at U of L and chairman of the
Louisville Bar Association Committee on
CLE expressed the view that the "Board of
Governors put an exaggerated price tag"
on the costs of a new CLE system, and said
that the program could be made self­supporting.
Stating that there "would be no problem
with the programs we have offered in the
past qualifying" for approval by the KBA
under the new program, Judge Volz
conceded that the costs of implementing a
new voluntary or mandatory program
could result in some increase in bar
association dues, and that the "record­keeping
factor" would have to be dealt
with . The problem of managing the records
of a new program could be eased, he
suggested, by placing the responsibility on
each lawyer to send to the bar association
each year how many CLE "hours" he or
she has completed for certification. A 50-
minute seminar period is counted as being
one CLE credit hour.
Assistant Prof. Linda Ewald, who is a
current member of the KBA Committee on
Continuing Legal Education, noted ·that
"its not going to cost anymore to put on a
(CLE) program for 300 lawyers than for
100 lawyers," and said that the state
Supreme Court might decide to adopt a
mandatory CLE plan in view of the ap­parently
favorable attitude of bar members
toward such a policy. The proposal for the
voluntary plan was submitted to the court
before the results of the KBA survey were
published in the October issue of the
Kentucky Bench and Bar. Thirty-seven
percent of the state bar menbers responded
to the survey.
Should a mandatory plan be adopted,
Prof. Ewald said more people would
become involved with CLE, more funds
would be available with which to operate
the program, and a full-time CLE staff
could be hired. At present, UK is the only
Kentucky law school with a full-time CLE
director and staff. The U of L program is
run- by people within the school who
volunteer to help with CLE in addition to
their other duties.
Pointing out that law is a "specialized
field," Prof. Ewald commented that "we
have come to the point in time where
lawyers need to participate (in CLE) on a
continuing basis-and the only way to have
that is to have a mandatory program."
The need for greater participation in
CLE programs, either voluntary or
mandatory, was also endorsed by Judge
Steinfeld. "I saw a dire need for continuing
legal education while on the bench," he
said. "I don't see how a lawyer can practice
today without taking advantage of Con­tinuing
Legal Education programs to keep
abreast of changes in the law."
KBA Membership
Members who have practiced less than 5 years ............................ 1 ,249
Members who have practiced more than 5 years . . . . .. . ............... . .. . . 3,596
Honorary KBA members- over age 75 . . .. . . ................ . . ........... Ill
Judges .................................... .... .................... . .. 106
Out of state members .......................... ...... .......... . ...... I ,055
New members (from Summer 1977 Bar Exam results) ...... .. . ... ............ 268
Total .................... . .............................. .... ........ 6,385
1975-1977 CLE Seminar attendance
UofL
Number of Seminars ... ... ................. . . ............ . ............... 41
Total Attendance ........ . ........................ . .. ........ . ........ 4,040
UK
Number of Seminars ........ .. ........................................... 41
Total Attendance ..................................................... 4,077
UofL .
Number of one day seminars held in Louisville .............................. 22
Total Attendance . . ..... ...... ............................ . . . .. . ...... 2,830
Average attendance per seminar .......................................... 128
UK
Number of one day seminars held in Lexington . ....... ........... ... ......... 6
T6tal Attendance ............... . ...................................... 801
Average attendance per seminar ........................................ 133.5
The University of Louisville Law
School Placement Office is Available
to Assist You with Your Employment
Needs, either Fulltime or Clerking.
The Placement Office Can Arrange
for On-Campus Interviews or the
Posting of a Notice, Describing the
Firm and the Position Available on
the Placement Bulletin Board.
Please contact:
Placement Office
University of Louisville
School of Law
Belknap Campus
Louisville, Ky. 40208
(502) 588-6638 or
(502) 588·6358
Female Juvenile Crime Rises
ABA Chicago
A small gang charged with wheedling
their way into the homes of aged persons
and stealing from them stood before the
judge in Chicago's Juvenile Court. The
gang members are Beverly, Lisa and Gina.
Their ringleader is 14-year-old Renee.
Violent crimes by juvenile females, such
as these four, are rising sharply, but the
justice system is inadequately equipped to
handle female juvenile offenders, ac­cording
to an article in the October issue of
Student Lawyer.
"Renee, Beverly, Lisa and Gina are
atypical to the extent that only 2.2 percent
of all females under 18 arrested in 1975
were charged with violent crimes, ac­cording
to the FBI's Uniform Crime
Reports," says author Laura Meyers.
"Still they are part of a growing trend
reflected in that same report, which shows
total female juvenile arrests for serious
crimes up 56 percent over the five previous
years."
Once the girls are involved with the
justice system whether for violent crimes or
status offenses,
ultimate results
Meyers states,
of their legal
"the
en-tanglements
can be as damaging to their
lives and their person as if it were a
felony." She cites examples of mistreat­ment
in state institutions and lack of
rehabilitation facilities and suitable
alternative placement for older girls.
"Girls are more likely to be confined to
. . . hellholes for non-criminal, juvenile
offenses than boys," Ms. Meyers says.
"Nationally, a mere 21 percent of all
juveniles arrested are females - but one
third of all juvenile detention facilities are
occupied by girls."
Ms. Meyers says that although property ·
crimes is the offense girls are charged with
most frequently, status offenses, such as
runny away, sexual "misbehavior" and
disobedience to parents, are often the
reasons girls are originally in court.
"The tragic irony . . . is that it is the
parents who most often send their children
into the maelstrom of juvenile punish­ment."
And, she notes, they are
"especially fond" of sending their little
girls to court.
6
I saw old Autumn in the misty morn
Stand shadow less like silence, listening
to silence.
Louisville Law Examiner, November 15, 1977
- Thomas Hood
The leaves fall early this autumn, in wind.
Photos by Chris Riven
Aprile Urges Equality in Plea Bargaining
(Continued from page 1)
similarily treated when granted, a trial de
novo. In the latter situation, the prosecutor
was prevented from enhancing the in­dictment
for the new trial without an af­firmative
showing of permissable reasons.
Mr. Aprile would hold that like
reasoning should be applied to plea
bargaining, not only to cases where the
prosecutor's retaliatory motives were
admitted on the record, but also to cases
where such' vindictiveness could be in­ferred.
This inference would be found
whenever the prosecutor failed to establish
the occurance of any event between the
issuance of the first and second indictments
which would justify an enhancement.
One might think that there is little
difference between facing the defendant
with the · enhanced indictment and then
bargaining down and its reverse, ap­proaching
him with a lesser charge and
upon refusal to bargain, "upping the
ante." Mr. Aprile was quick to point out a
fundamental distinCtion. The latter worked
as a threat in that if the defendant refused
to bargain he would be faced with the
possibility of a substantially increased
penalty upon conviction. In the former the
defendant and the prosecutor are left in the
same risk positions when plea bargaining
fails; the defendant is not subject to any
greater punishment. The difference is sub­tle,
but when a defendant, as in this case,
is faced with the prosecution's five-year
sentence recommendation and the
possibility of a life sentence as an alter­native
to non-plea bargaining, the enormity
of the threat becomes apparent.
The Commonwealth had argued at the
Circuit Court level that the entire concept
of plea bargaining would be destroyed if
the prosecutor were not permitted to seek
enhanced indictments if defendants refuse
to plead guilty. Judge McCree "flatly
disagreed," holding that although the
prosecutor could offer concessions in the
course of plea bargaining, he may not
threaten.
The court reasoned that if the prosecutor
obtains an indictment before the plea
bargaining begins that is less severe than is
possible under the facts known to him,
then he has made a discretionary deter­mination
·that the state interests are not
served by seeking the more serious in­dictment.
If, after plea bargaining fails, the
prosecutor procures an indictment on more
serious charges, then a strong inference of
vindictiveness . or retaliation arises, a
circumstance which requires the prosecutor
to justify his actions.
Mr. Aprile noted that the Circuit Court
opinion is broad and the extension of the
principle to new ground has generated
national interest in the case. Several amicus
curiae briefs have been filed from
California and Texas.
The importance of the decision rests on
the fact that, under the Sixth Circuit
Court's reasoning, the defendant does not
have to prove the prosecutor's retaliatory
motives, an extremely difficult task if one
is not benefited by a prosecutor's slip of the
tongue recorded on the record. The
defendant need only show that after plea
bargaining negotiations failed the state
sought to procure an indictment on more
serious charges. This showing
automatically places a burden on the
prosecutor to show by affirmative evidence
reasons other than vindictiveness to justify
the second indictment. If the prosecutor
fails to establish justifiable reasons, then
the less serious indictment prevails.
Mr. Aprile feels confident that the
Supreme Court will affirm the Court of
Appeals' decision, thus maintaining the
trend towards invalidating state criminal
procedural actions that strike the court as
retaliatory or vindictive in nature. He feels
that it is necessary to preserve an at­mosphere
free of coercion in plea
bargaining.
Should Hayes win his appeal, his
freedom would remain in doubt. His
conviction for forgery would continue to
stand and the case would be remanded only
for resentencing on the original indictment.
Des!)ite the adoption of the new Kentucky
Penal Code since his first conviction,
Hayes is still liable under the old statute
and he faces an up to ten-year sentence.
The present code's maximum sentence is
three years. It is also notable that Hayes
would not have been subjected to enhanced
sentencing under Kentucky's new habitual
offender statute K.R.S. 532.080 which
superceded K.R.S. 431.190.
Oral appellate arguments are not a new
thing for Mr. Aprile. He participated on
the law school's national inoot court team
which won the regional competition and
went on to compete in the National finals
competition. He has also had extensive
experience in arguing appeals before the
Military Court of: Appeals obtained while
he was a Judge Advocate in the Army. Mr.
Aprile currently teaches a course in
Criminal Defense Theory and Practice
which he alternates with a course entitled
Written Advocacy. Mr. Aprile is a
graduate of Bellarmine College. He
received his J.D. from the University of
Louisville in 1968 and his LLM frsm
George Washington University in 1973.
Louisville Law Examiner, November 15, 1977 7
Professor Reynolds Predicts Bakke Reversal
by A. David Reynolds
Assistant Professor
University of Louisville
School of Law
On October 12th of this year, the United
States Supreme Court heard arguments in
the case of Regents of the University of
California v. Bakke. The case presents a
challenge to the constitutionality of af­firmative
action programs under which
professional schools have been giving
special preference to minority applicants.
Such has been the publicity surrounding
the case that it is doubtful that there are
many lawyers or lay people who have not
heard of the case and formed a strong
opinion favoring one side or the other. It
has been called the most significant case to
come before the Court since the famous
desegregation case of Brown v. Board of
Education, attracting 58 friend-of-the­court
briefs, a Court record for this sort of
thing.
The pros and cons of affirmative action
plans as a matter of social policy present
very difficult questions. These issues have
been argued quite extensively in the media
and there is little to add. Ho:wever, very lit­tle
has been written about the merits of Mr.
Bakke's case, from a legal standpoint.
Consequently, most lawyers feel no more
able to evaluate the case intelligently than
the average man on the street.
Briefly, these are the facts. Alan Bakke
is a 37-year-old white male aerospace
engineer. In 1973 and again in 1974, he
applied to the Univerity of California's
medical school at Davis . He was rejected
by Davis and by all of the other medical
schools to which he had applied. At the
time of his applications, Davis operated a
special admissions program for minority
applicants. Out of a class of 100, 16 places
were set aside for minority applicants,
primarily blacks and Chicanos. A special
minority admissions committee reviewed
candidates for those slots separately. A
number of the minority applicants ad­mitted
under this program had college
grades and medical aptitude exam scores
much lower than those of Mr. Bakke.
After his second rejection from Davis,
Bakke filed suit against the University of
California, alleging that the university had
discriminated against him because he was a
while male. He argued that by treating him
differently because of his race, the state­run
university was denying him equal
protection as guaranteed by the fourteenth
amendment to the United States Con­stitution.
In a 6-to-1 decision, the
California Supreme Court agreed with Mr.
Bakke. The nation now awaits final word
from the United States Supreme Court.
What may be surprising to some is that a
number of recent rulings by the Supreme
Court may have made Bakke a relatively
simple case. The next few paragraphs
briefly review these developments and
suggest why it appears unlikely that Mr.
Bakke will soon be attending the University
of California's medical school.
This case is not the first to present the
court with a challenge to the con­stitutionality
of affirmative action
programs. The question of "reverse
discrimination" was in front of the Court
in 1974 in the case of DeFunis v. Odegaard,
416 U.S. 312 (1974). DeFunis, a white
male, had similarly alleged that he had
been wrongfully denied admission to the
University of Washington's law school
because of his race. In a much criticized
decision, the court avoided resolving the
issue, holding that the case had become
moot and therefore was no longer ap­propriate
for a constitutional decision. The
Court seized on the fact that, due to a
lower court order, DeFunis had been
permitted to enter the law school and had
virtually completed his studies by the time
the case was argued. Critics have suggested
that the real reason for the decision was the
court's reluctance to decide a thorny
constitutional question.
At the time of DeFunis, a number of
prior decisions of the Court seemed to
make clear that any measure which had the
effect of discriminating against someone
because of his / her race would be con­sidered
unconstitutional. Although states
might escape this prohibition upon the
showing of a compelling state interest, that
standard had never been met. Thus, to find
against DeFunis, the Court would have to
have found either I) that a compelling state
interest had been shown or, 2) that the
equal protection clause did not prevent
discrimination against members of the
white majority. It was exactly because of
an unwillingness to reach either of these
conclusions that the California Supreme
Court ruled as it did in Bakke. One might
wonder if, at the time of DeFunis, some
members of the Court, though sympathetic
to affirmative action, had reservations
similar to those of the California Supreme
Court and joined in the decision, hoping
that before the issue would confront them
again, the groundwork for a more accept­able
solution could be laid.
If this hypothesis is correct, the process
of reshaping the law might have begun in
the case of Washington v. Davis, 426 U.S.
229 (1976). There, unsuccessful black
applicants for positions on the Washington
D.C. police department alleged that the
written entrance exams were un­constitutionally
biased against blacks.
They had sought to make their case by
pointing to the disproportionately high
number of blacks who failed the tests . The
Court rejected their charges, holding that
the mere showing of a discriminatory
impact on a minority, without more, would
not establish a constitutional violation. The
Court made very clear it's view, that, to
result in unconstitutional discrimination,
state actiQn ust have as_ its impetus
discriminatory purpose; i.e., when the state
does something which disadvantages
blacks, the actions must be shown to have
been motivated by an intent or purpose to
discriminate against blacks before it will be
struck down. This decision was extremely
significant because the Warren Court often
had been very willing to infer
discriminatory intent from a showing of
discriminatory effect. The Burger Court
apparently was going to require that
plaintiffs meet the almost impossible
burden of proving the discriminatory intent
in each case.
To the dismay of the civil rights
reformers, citations to Washington v.
Davis began to creep into every decision
where the question of racial discrimination
was involved. The Court began to act as if
it were the only significant racial
discrimination case ever decided. The
Washington decision was extended to the
area of housing discrimination and was the
basis for the Court's holding constitutional,
in the face of unanimous opposition in the
circuit courts, company seniority systems
which perpetuated the effects of past dis­crimination.
So what has all this to do with reverse
discrimination? These were cases that
focused on whether blacks and other mi­norities
had been victimized by uncon- .
stitutional discrimination and not on
resolving the problems that had been
presented in the DeFunis case. The con­nection
seems a little remote unless one also
considers the case of United Jewish
Organizations v. Carey, 430 U.S. 144
(1977). In that case, representatives of a
community of Hasidic Jews were
challenging a reapportionment plan
devised-by the New York state legislature
that would divide their community between
two separate voting districts, substantially
diluting their voting power as an ethnic
block. These plaintiffs argued that the plan
was unconstitutional because it was racially
motivated and designed to increase the
voting strength of surrounding non-white
communities. In effect, they argued that
the state could not constitutionally act in a
racially conscious manner to help non­whites
if, in doing so, it hurt segments of
the white majority.
The Court rejected the plaintiffs'
charges, relying primarily on the fact that
New York's reapportionment plan had to
be racially conscious in order to satisfy the
demands of the Attorney General under the
federal Voting Rights Act of 1965.
However, five members of the Court were
willing to go beyond the federal statute and
hold that the New York plan would be
constitutional regardless thereof. Justices
White, Stevens and Rehnquist, noting that
the plan's purposeful use of race was not
designed to stigmatize whites, stressed;
among other things, the fact that the plan
was not unconstitutional because it did not
"unfairly cancel out white voting
strength." 430 U.S. at 165 . This result
would not occur so long as whites, as a
whole throughout the state, were districted
so as to assure their fair representation in
the state legislature.
Justices Stewart and Powell went even
further . Relying directly on the line of cases
emanating from Washington v. Davis, they
argued that the only issue was whether the
plan represented "purposeful
discrimination against white voters ." 430
U.S. at 179. Since the state's motive was
simply to improv,e non-white represen­tation
in compliance with the Voting Rights
Act, "any finding that it acted with the
invidious purpose of discriminating against
white voters (was foreclosed)." 430 U.S. at
180.
To be sure, the problem of voting rights
is of quite a different character than the
question of professional school ad­missions.
Nonetheless, the problem of
whether racially conscious efforts to help
minorities may unconstitutionally infringe
on the rights o[ the dominant white
majority is central to both cases. If the
approach of Justices Stewart and Powell is
used, the Bakke case becomes remarkably
simple. If, in setting aside 16 places for
non-whites, the Unive~sity of California
simply intended to try to correct minority
under-representation in the medical pro­fession,
then their plan clearly lacked
the requisite "invidious purpose of
discriminating against white (applicants)."
Since Bakke does not ascribe any other
motive to the university, this line of
reasoning could well doom his case. Ar­chibald
Cox, representing the university,
alluded to this reasoning at the oral
arguments (N.Y. Times, Oct. 13, 1977 at
30).
The great irony is that the very cases
which minority leaders so roundly con­demned
may provide the best defense to
what is probably the most serious challenge
yet to minority aspirations.
Even if Powell and Stewart are not able
to command a majority in their adaptation
of Washington v. Davis to deal with
Bakke, the Carey case also showed that at
least three other members of the Court
were willing to authorize the use of racial
criteria in certain instances. Of course, Mr.
Bakke is not like the Hasidic community
whose loss of voting power might be offset
by the fact that other districts where whites
are in the majority will sometimes
represent its interests in the legislature. For
Mr. Bakke, the fact that whites are
otherwise fairly represented in the medical
profession is of no solace.
Though their reasoning in Carey might
not carry over to the Bakke case, Justices
White, Stevens and Rehnquist clearly were
still unwilling to hold that a racially
motivated program to help minorities,
although disadvantaging some whites, was
per se unconstitutional. Given this position
and given the relative incompleteness of the
record for anything less than a fairly
categorical ruling one way or another, the
Court, at the very least, is likely to
recognize the constitutionality of af­firmative
action in principle even if it
withholds approval of the university's
program until the lower court develops a
record sufficient to allow it to determine
whether California may have gone too far.
This position is being urged by the Solicitor
General as amicus curiae.
Mr. Bakke, of course, would still remain
the loser . .
Aside from these recent precedents, two
other factors strongly militate against Mr.
Bakke's success. The first is that the Court
is well aware of its heritage since Brown v.
Board of Education. Though uncomfort­able
with "busing," it certainly has not
abandoned it as everyone in Jefferson
County well knows. Because of this dedi­cation
to protecting the politically weaker
black minority, a ruling in Mr. Bakke's
favor would certainly be out of character.
A second consideration, of great concern
to the Court in recent years, is the prospect
of a whole new set of lawsuits flooding the
courts should there be a finding that af­firmative
action may discriminate un­constitutionally
against whites. Already
suits are being filed all over the country by
white males who claim that job seniority or
other employment opportunities have been
wrongfully awarded to women or
minorities. For the Supreme Court to hold
for the first time that whites may be the
VIctim of unconstitutional racial
discrimination would open up a Pandora's
box of new problems with which the Court
would have to deal.
As any litigator well knows, no case is
ever a sure winner or a sure loser. Although
I wouldn't go as far as Harvard Professor
Larry Tribe when ;. ' says that the con­stitutional
issue in the ... >•kke case is not
"even remotely difficult," .. •hink that a
legal analysis of the problem makes one a
lot less uncertain about the probable result
than one might otherwise suspect.
Prepaid Legal Plans Studied
ABA - Chicago
The American Prepaid Legal Service3
Institute said recently it is starting the first
phase of a major actuarial study of prepaid
legal services plans.
Financed by a Ford Foundation grant,
the institute will seek data on benefits,
membership, operating expenses, reserves
and financing. Membership information
sought includes age distribution, sex,
occupation, average income and residence
(metropolitan, suburban or rural).
The institute, an arm of the American
Bar Asociation, said the data is being
collected and analyzed by Prof. Claude C.
Lilly, University of Southern California.
Institute President Lawrence M. Wood,
Denver, said it is hoped the data will help
establish criteria for setting prepayment
rates and assist in developing a reliable
methodology for determining such rates.
"This actuarial information would then
be passed along to future planners of
prepaid plans," Mr. Wood said. "It may
also help current plans to determine their
future operating costs and needs for
reserves."
Assisting in the study are the Laborers
District Council Plan, Washington, D.C.;
Laborers Local 423, Columbus, Ohio; City
Employees, Columbus, Ohio; Kansas PLS
Plans; DC 37, New York, Social Service
Employees (Local 371), New York City;
University of Minnesota Plan; Berkeley
Coop; State Bar of Michigan - Teachers;
Virginia Plan of Midwest Mutual; Alaska
Laborers and Shreveport Bar Association.
8 Leuisvllle Law Examiner, November 15, 1977
Reifler Study's
Validity Questioned
(Continued from page 2)
critical of the money being spent on it. Two anecdotes may illustrate their sen­timents
when asked what items they felt deserved a lower priority than that of
obscenity and pornography; one replied, 'the super highway from Chapel Hill to
nowhere' and another, 'raising Congressmen's salaries.' All other items from
drugs to poverty to war to international relationships to race are considered
infinitely more important by them. I wonder if in the questionnaire that will be
used in the national survey some similar item might be included to get some
feeling of urgency or lack of it among the population at large.''
That is the statement of the actual researcher concerning his subjects who were
to serve as guinea pigs and who were to represent a reaction to be considered as
typical of the entire population; a researcher who would be called upon to analyze
the results of his research.
No one disputes his right to his personal political opinions. However, one does
expect him to be a totally impartial researcher, ready to accept whatever the
results may be. One does expect him to be assiduously concerned that all of the
controlled mechanisms of his research would not flaw or "control" the result
before the research was completed. To my knowledge, no one has ever pointed
out that the research results may have been biased, either by the attitudes of the
researcher or the attitudes of the guinea pigs.
Anoth~r bias of the Commissioners is illustrated in a letter dated August 26,
1969, wntten by Dr. Wilson and addressed to Freeman Lewis, a Commissioner
and the Vice President in Charge of Publishing at Pocketbooks, a division of
Simon and Schuster, Inc. I will quote the second paragraph of that letter and then
explain it's implications:
"There may be another difficulty with the research. There are rumors that it
was conducted with a grant from a well-known publisher of erotic materials. I do
not think that the people who conducted that study would be influenced by the
source of the funds, but this may cause some problem in the social acceptance of
the findings. We have been waiting until the results are published in the open
literature before calling it to the Commission's attention because, first, we have
been unable to obtain permission from those doing the research to distribute it;
and second, the acknowledgments of sponsorship and financial support may need
the legitimacy of a scientific or professional publication to create credibility. We
will distribute the study to the members of the Commission as soon as it is
available. Meanwhile, we are distributing the news clippings that you sent us to
the members of the Commission.''
First, it should be noted that Dr. Wilson indicates contact with "those doing
the research" because he said he had not been able to get their permission.
Further, Dr. Wilson apparently knew the researchers if he was well enough
acquainte with them..toissue_the opinion that ihey would not be affected by the
source of funds for their research. Obviously, then, Dr. Wilson had familiarity
with the research and it's funding.
The research to which he refers is that of Dr. Donald Carns, and it amounted
to circulation of a questionnaire to certain mental health professionals asking for
written responses concerning their attitudes about the use of "sexually explicit"
materials and their effects in society at large.
The questionnaire itself and it's results are subject to much question, but that is
not my purpose here. What was widely proclaimed as a result of the project was
that mental health professionals were nearly united in . the opinion that no
"harmful" results could be expected from exposure to "sexually eXplicit"
materials.
The research was funded by the Playboy Foundation. Through some
manueverings, a person on the staff at the University of Chicago signed a letter
concerning the research - a device used to create the false impression that it was
THE KEY NUMBER SYSTEM
tllkes you from one case in any law book to all cases in point. Take a cited
·opinion. Check the Table of Cases in your Key Number Digest. There you'll
find the Key Number that dassifies that case and all others in point. And this
method works even when you begin with cases from books not based on the
Key Number System. That's one way the compatible Key Number System
rMkes your library more valuable, more useful. Find out how you can put it
• work too, today.
IEIE PFLUIHIUPT
B.S. Northwestern Unnoersity
LL.B. Southern Methodist Uniwrsity
.WEST
"ILISIIII CI.PIIY
Louisville-~
Shelbyville- 633-ai15
solely the work of the University of Chicago. This was then used by the Com­mission
as an indication of the attitude of mental health professionals.
In t~e ~even years that have passed, have my feelings about the Presidential
Commission changed? Not at all. In fact, the course of history since the issuance
of the Commission's final report have proven its assumptions were in error.
When Congress created the Commission, it asked for a more effective means of
controlling obscenity, which it regarded as a national problem. It did not ask that
the controls be removed.
Because the Commission did not analyze and provide the necessary direction
for better controls, the administration of obscenity laws has suffered. Hard-core
pornography has inundated the neighborhoods of all local communities. A prime
example of the bad effects of the Commission's work is "child pornography."
That tragedy would never have come about, except for the failure of the Com­mission
to recognize and indict obscenity as a major social eviL
~ur!he,rmore, n~turallaw ha_s taken over. Time will now show the fallacy of the
ma]onty s reasomng. They said that two and~ two equals six. It won't be many
more years before the common-sense taxpayer will come to realize the fraud
which has been perpetrated upon him- at his great expense! .
It is my firm opinion that the Presidential Commission on Obscenity fiasco
should remain in it's graveyard where the President, the Senate and others have
placed it, and that a "stacked-deck," controlled investigation should never again
be a_ll?wed_to come into ~eing. T~e failure of the Commission has brought about
a cnsis which needs tendmg to nght now. We cannot sit around and talk about
the problem. If additional Federal monies were available now, they should go
toward coordinating the administration of current obscenity laws of the states
and of the various Federal agencies.
FOOTNOTE
'See, for example, Where Do You Draw the Line, (Brigham Young University
Press, 1974), edited by Victor B. Cline, or the monograph by Lane V. Sun­derland,
"Obscenity, The Court, The Congress and The President's Com­mission"
(Am. Enterprise lost. for Pub. Policy Research, 1975, Lib. of Cong.
Card Cat. No. 74-29416.)
Nov. 24-27
Dec. 2 (p.m.)
Dec. 3 (a.m.)
Dec. 3-17
Dec. 9 (p.m.)
Dec. 15-16
Dec.16
Dec. 16-17
Jan.12
Jan. 13 (p.m.)
Jan. 27 (p.m.)
CALENDAR OF EVENTS
Thanksgiving Holiday
Practice in the New Kentucky District Courts, Middleton
Auditorium, Strickler Hall, University of Louisville, Louisville.
Examination Period
Practice in the New Kentucky District Dourts, Barkley Lodge, Lake
Barkley. (Co-sponsor: Murray State University)
Annual Federal Tax Institute, University of Louisville, Louisville.
Christmas Party for December Graduates {Tentative)
Commercial Law, University of Kentucky, Continuing Legal Education
Program, Lexington.
SBA Smoker 7:00p.m.- 11:00 p.m.
Federal Tax Reform Act of 1976, Owensboro. (Co-sponsor: Western
Kentucky University).
Review of the 1977 Developments in the Law, Middleton Auditorium,
University of Louisville, Louisville.
llnutsutllt
&w 1Exmnintr
Louisville Law Examiner
School of Law
University of Louisville
Louisville, Kentucky 40208