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BAR .REVIEW

) U R..l S • Volume 28 • Spring 1995

Editor-in-Chief Faith D. Slampak

Executive Editoo· Joseph S. KMcinski

Managiu{l: Editor Gm·alrl W. Yanity

Executive Produt·tion Editor Paul H . J egc•

Assistant Production Editoo• Clifford F. Chin

Law Editoo· Alison Fenlon

Artidce Editors Tst>gaye Bt>ou, Glemo E. Camus

Senior Editor h.ristiu L. Pit:seski

Alumni f.:ditm· John B. Gret•nl .. (•

Camp..., fo:ditor J<'nnift~r M. Swistak

Graphics Editor Joseph H. Kl'ebler J ,._

Photogo•aphy Editor~ Guil L. Brannon, l\1idol'l.. . Fot·te

Staff Editors Susan M. Fix. Coll. .. en Finm:gan

Dnwu K . Gull, Tiffany Lt·t·oy Ruphael A. Pt•arl. David M. Seitz

St .. vt' M. Sodinc

Contributing Writers Brut:e Bugin, Mao·y R . Castelli

Melloney Donee, Wao-rtm Haines Paul T. Ovo>u. Stephanie Smith

Business Staff Aaron .J. DeLuca. Todtl Kristofik

Hel•m Thomp•on, Andrea L. TrPe~•·

Tauunie Williams

Production Staff Carrie J. Dill mar, Georgia M. Nuller

Photographers Patrieia Fisher, Mary P. Murray

Student Organizations Coordinator Jan P. Dasehbaeh

Faculty Advi&Prs Kcnnf'lh Gormley Raymond Sekula

Cover Design Jim Kezooan

CoverS tory

The American public has been snapping up books b y and about l awyers for years. Gera1d

W. Yanity and Aaron J, DeLuca present frank conversa tions with two authot·s of legal fiction.

Page 4

Articles

Duquesne U niversity School of Law has expanded its intemational ties. Clifford F. Chin,

Mary R. Castelli and Mark Yochwn explain the Law School's recent efforts .

Page 10

On Campus

A respected a ide to two Pittsburgh Mayors is the new Director of Clinical Legal Educa tion a t

Duquesne. Jennifer M. Swistak talks with

Professor J oseph Sabino Mistick .

Page 25

Also Inside ...

Editorials ... . . ....... . .. . .. . .. . .......... . .. . . .. ......... . ............ . .. . ..... 2 Articles ....... . ........ .......... .... .... .......... .......... ..... . .... . ... ....... 10 TheLaw .... ... . . . . ....... .............. ..... ............. . . . ..... ...... ...... .. 28 Camp us News ............................. . ........... .. ..... .. .. . ... . .. .. .... . 25 Alumni News .. ............. . ........................ . .... . .... .......... . . .... 27 Humor .. ........... . ............ . ... .. . . ......... . .. . .... ... . ...... . .. . ..... . .. .. . :32

J l ~ Kll is a student publication of the Ouqucsnt• l"nive•·sity Sdtool of l.aw. The views and opinions expressed herdn arc not nen·ssal'ily thost· o(fllris

m· of the Dm(UCSJU' Unive rsity School of I.aw.

Copyright 1<)95 J>uqucsnt• t:nivt:rsity.

Editorials

Cotning to Tertns With Litnits (( .. .(A}ll experience has shown that mankind are more exposed to suffer while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed ... ))

A re state-imposed limits on the number of terms that a member of Congress can serve in the same

office constitutionally permissible t·egu­lations impacting the time, place and man­ner of elections or additional qualifica­tions designed to restrict Congressional membership? More importantly, if the American people, in an exe1·cise of their First Amendment rights, endorse these measures, should it matter?

During the 1992 elections, the Ameri­can public 's support for Congressional term limits was unequivocally demon­strated at the polls a s 14 state ballot ini­tiatives limiting Congressional terms were passed. Again in 1994, the people of an additional seven states voted to enact lim­its on Congressional terms. The Ameri­can people have embt·aced the democra tic system in an effort to address their griP.v­ances. The message the votet·s sent is clear. No longer are Americans willing o t· able to tole t·a te career politicians who are insulated from a nd inattentive to the de­sires and needs of their constituents.

Imposing limits on the number of terms during which a membet· of Congress can hold the same office is not a novel con­cept. The issue predates Congress itself and can t race its roots to the debates on the f1oor of the constitutional convention in 1787. So why has the topic recently gained popularity, capturing the imagina­tion, support and efforts of an increas­ingly large segment of the American pub­lic?

T erm limit opponents asse1·t tha t voters, by virtue of their fran­chise, already possess the ability

to t·id themselves of these incumbents and in a perfect world that may be true. This argument does not, however, address the huge benefits bestowed by long term in­cumbency: an enhanced ability to t·aise

2 JUR-IS Spring 1995

-The Declaration of Independence

campaign funds; the ability to roll over excess campaign funds to their next cam­paign; use of the Congressional franking privilege to mail campaign literature; free travel to and from their distric ts; greater access to the media ; and enhanced name recognition to name just a few. These ben­efits add up to a grea ter than 90 pe rcen t re-election rate for incumbents.

T he effects of long term incumbency at·e an almost ins urmountable handicap to an otherwise quaW"ied

challenger's bid for Congressional office . It comes as no surprise, therefore, that the people of the several states ha ve adopted amendments to their state con­stitutions as the only viable method through which to level the political play­ing field. The alternative is to wait for Congress to vote to amend the federal con­stitution by a two thirds majority of both houses (67 Senators and 290 Representa­tives), an event that is unlikely to happen soon despite 1994 campaign promises.

Moreover, if Congress were to ap­prove a con stitutiona l a me ndment by the requisite two thirds majority, the a mend­m ent still has to he ratified by three fourths of the sta tes within seven years of its passage in Congress. So even if Con­gress were to vote to amend the Constitu­tion to limit their own terms in office , it could take up to seven years for the mea­sure to be ratified. Furthermore, since i t is unlikely that the amendment would be applied r·etroactively, (all of the current state-imposed term limits have been pro­spective) once the Cons titution was actu­ally amended it would take an additional six to 12 years to have a n y t·eal effect.

T his arduous path is exactly why states at·e circumventing the pro­cess and achieving indirectly what

they have little hope of achieving directly.

The strategy of establishing term limits at the state level has been successful thus far, but is it constitutional?

The question of whether the sta tes have the power to enact term limita tions on members of Congress by amending their state constitutions will be decided in the near future. The Supreme Court is cur­rently considering this very issue and is expectP.d to decide the matter before the end of the current tenn in June. Most commentators ex pect, that due to the volatile nature of the subject and the fre­quency with which the states have been amending their s tate cons titutions , that the Court will hand down a definitive rul-ing.

Since 1990, an overwhelming major­ity of voters in 22 s tates have elected to impose term limits on the Congressional office holders representing their s tate . Most of these states have chosen to amend their state constitutions, rather than wait fot· a reluctant Congress to vote to amend the Federal Constitution in an act of po­litical suicide .

I f the Supreme Court h olds that the s tates do not h ave the authority to impose term limits on members of

Congress , the states still ha ve one other option. Two thirds of the s tates are re­quired to call a constitutiona l convention to consider amending the F ederal Consti­tution. If the frequen cy with which the states are amending their cons ti tutions to impose term limits on members of Con­gress is any indication, a hint of a revolu­tionary spirit seems to b e in the air, and so gathering the 34 states necessary to call the convention seems entirely possible.

Faith D. Slampak Edi tor-in-Chief

By Steph:n Yula

On Surday morning J uroe 4, 1995, the Duquesne University School of Law held cororo.encement for the eighty-second time. The School of Law has once again adl-ered to its tradition by graduating o:ne hurdrecl ani sixty outstanding men ani >VOmen to serve the legal profession. But has t:he School of Law, its faculty and administration been fulfilled. its mission statement?

In the 1991-93 prospectus we v.ere told by t:hen Dean John J . Sciullo, tbat t:he School of Law's mission was ''to continue t:he tradition by helping dedicated men ani >VOmen become members of a vital ard hmorecl profession ." Can it be said tbat t:he Sc:hool of Law has fulfilled its mission w:hen its dedicated graduates continue to be denied membership to t:he vital ard :homrecl profession? Or is this mission complete because the Sc:hool of Law has helped to prepare dedicated men ani >VOmenfor the practice of law?

If the latter is true, wbat purpose is served by preparing dedicated men and. >VDmen for t:he a profession tbat does not need t:hem? If the mission is not fulfilled. by mere preparation, t:hen the analysis is mt so simple. By wbat standard, if any,

can we deterrn:ine w:het:her t:he School of Law 's administration and the faculty :have abided by its mission statement? Is the mission a failure until each and e:very one of us is employed in t:he profession? Or, should the School of Law simply ~uire the administration ani fa.cul ty to do all tbatitcan to hJp its students enter

t:he profession? Byeit:her standard in my estimation the

School of Law has fallen srort of its stated goal. On our day of comm.eroe:m.ent, most of us v.ere mt employed or did not :have offers of employment in the legal profession. Call it wbat you will, personal crisis, disappointment death of a dream, fate or luck of t:he draw, students continue to fall short of their goal of finding employment, a fact which the admin­istration continues to igrore.

It may be argued tbat it is unfair to blame t:he School of Law for t:he disastrous legal job market. After all, t:he School of Law has m control over market forces . This "argument" is purportedly but-

(-. .... , ... ,,. .-,. ,_.1 L.•~ I L L 1_.\ l

.a;

tressed by the frequently :heard ec:ho, '~hy hire a D uquense graduate when we can :have our pick form t:he [so ca.lled) 'national law schools'." Yet, t:he very prospectus tbat lured to this institution told us tbat "[ t) wenty-eight percent of all practicing attor:neys in t:he twenty-seven counties of western Perorosylvania" were

Duquesne Alumni. How can it be, with such a high percentage of alumni, tbat the School of Law's administration and faculty can not impact the market?

I lrnow of one alumnus w:ho has made a difference in the market. A partr.er in o:ne of t:he largest law firms in the state hired a Duquense student as a clerk primarily because the student was from t:he Duquesr~e University School of Law. Better yet, according to Assistant Dean John T Rago, this same attorney stated that while :he contribute money to the School of Law, as long as his firm :had a

See lVIISSI.ON an Pagt~ 34

Spring 1995 J L•J<.. I S 5

OjJiJliOJZ

Who Cares? With tongue in cheek) the President of Duquesne)s Student Bar Association decries apathy ... but will anybody care?

By Paul T. Oven

C onsidering it's just about time to elect a new administration to run the Student Bar Association at the

Duquesne University School of Law, I fig­ured that this free space was as good a fot"Um as any to jump on my soapbox and deli vet· a fat· ovet·due "S tate of the Union Address."

Hot off the campaign trail in March of 1994, we started out like gangbusters last spring, having won a convincing de­cision, in a Soviet-style uncontested elec­tion, to the SBA Presidency. Official tally: Oven-271 votes, Professor Cornelius Murphy ( wl"ite-in candidate) --4, Ross Pet·ot (wl"ite-in candidate)-2.

My first task as President was to find a volunteer (or five) to be Class Repre­sentatives for two classes that didn't even have enough people nominated to have an election. With a little cajoling (i.e. "Looks great on a resume" ... "You can't begin to imagine what Student Government has done for my love life" ... "Elevator key" .. . ),the seats were filled.

I guess I should have listened when Brian Parker (1992-93 President) and Susan Gaetano (1993-94) told me not to bother tt·ying to get the Faculty involved in student social affairs. The numbers speak for themselves : There have been 11 SBA functions: six Happy Hours, one Barrister's Ball, one5oftbaU Picnic, one First-Year Orientation Party, two SBA/ ABA Work-A-Day pt·ograms, and the to­tal number of faculty in attendance was a whopping 13.

DISCLAIMER: This has absolutely nothing to do with faculty participation and involvement in other areas. There was a great turnout for Appellate Moot Court arguments , Trial Moot Com·t as­sistance, Law Review, etc.

And the number for faculty attendance does not include the students filling in the gaping roster holes in the faculty squad

at the Softball Picnic. Deans Ricci and Rago have range but not that much range.

This t·aging epidemic of apathy has bothued me since my first year. How­ever, there was something I hadn't real­ized while sweating through the rite of passage entitled Legal Process and Pro­cedure during the Fall of 1992 when my head was down, and I was pretending to write ' Husband hurt at wodc Wife sues for loss of consortium.' over and over in my notes . There was this sense of being on the same ad< as everyone else in class, drifting aimlessly in the middle of the ocean , but it was just a passing feeling.

After the luster wore off a little over the summer between fit·st and second year, the atmosphere changed. These past two years have been one mad dash to land a job by any means necessary.

Students lately have pictured them­selves very happily answet·ing phones for a solo practitioner in Punxsutawney or selling insm·a nce anywhere east of the Pacific. As long as the job doesn't involve saying"Thank you! Drive through to the

next window!" someone here has prob­ably already sent a resume.

Sometimes I wonder if attending class has lost all relevance. It seems like law school classes have gotten in the way of this frenzy. We sign attendance sheets to assut·e " the warden" that someone learns Interna tional Law each year.

Seeing a first-year student skipping a class is somewhat reminiscent of Paul Newman in "Cool Hand Luke." We tell the University Bookstore to stock more supplements than textbooks. Steven Emanuel offered to speak at graduation to express his deep appreciation. Cam­pus parking was the number one student concern three Deans ' Assemblies in a row. See what I mean?

Apathy breeds apathy. We can only come to expect ft·om the Law School and its keepers what we put into it. Yet I myself take comfort, while slumped in my seat during U.C.C . , that I can afford to

See APATHY on page 30

Spring1 995 JU~IS 3

-- ---~~

Couer StrHy

Legal Fiction Two prominent attorneys­turned-authors discuss their practice of law and literary skills.

A merica's fascination with the legal profession has spawned a variety of entertainment options that

feed the country's seemingly insatiable illl':i~!!!!!!!!!!!! appetite for anything connected with the law.

From television's Perry Mason and L.A. Law to the silver screen's The Paper Chase and A Few Good Men , the public has warmly embraced Hollywood's version of lawyers and the way they practice.

But in the recent past, lawyers themselves have increasingly entered the entertainment business with their own offerings and interpretations of the law and the legal experience.

Tapping into their experience writing briefs and memos , a host of lawyers have penned a variety of books about the legal experience which the American public has eagerly snapped up. In the process, the authors of such books have become household names and popular among all segments of the population.

I n the following pages, ]uris presents candid conversations with two prominent attorneys who have taken successful legal practices and have parlayed their

knowledge of the law and the profession into second careers as authors.

Alan M. Dershowitz has represented such high-profile clients as Claus Von Bulow, Leona Helmsley and Mike Tyson. A member of the 0.]. Simpson defense team, Dershowitz recently released his first novel.

Scott Turow is the well-known and controversial author of Presumed Innocent and The Burden of Proof Like Dershowitz, he continues to write while maintaining an active law practice.

4 JUI'-..ISSpring1995

Alan l)ersholl'itz

Alan M. Dershowitz From Harvard Law School to the courtroom to the bookstores, the famed attorney has made waves and headlines. By Gm·ald W. Yanity

Alan M. Dershowitz is no stranger to the limelight.

He has defended many high-profile cli­ents including Claus Von Bulow, Leona Helmsley, Mike Tyson, and, of cout·se, he is a member of the O.J. Simpson defense team. Det·showitz teaches at Harvat·d Law School and is the author of several non­fiction wot·ks and dozens of essays.

But recently, Dershowitz has turned his attention to a new pursuit: fiction. His first novel, The Advocates Devil, has re­cently hit the press, earning favorable t'eviews.

The Advocates Devil tells the story of Abe Ringel, a prominent Boston attorney hired to defend Joe Campbell, a star for­ward with the New York Knicks, who is accused of raping of a woman aftet· she invites him to her hotel room. At first glance , Abe thinks he has taken an easy case ami firmly believes in his client's in­nocence. But as he and his staff investi­gate, he discovers that Campbell has con­cealed facts which may prove his guilt.

Eerily paralleling the 0 .J. Simpson and Mike Tyson cases, The Advocate s Devil explores the hazards of defending a popular athlete, and thoroughly dissects the moral dilemma a lawyer fa ces when evidence suggests that his client is guilty.

Recently, Managing Editor Get·ald W. Yanity had the opportunity to discuss the book with Dershowitz, as well as other issues involving the ubiquitous advocate, professor and occasional writer of legal thrillers.

JURIS: Mr. Dershowitz, why did you choose fiction this t ime?

A.M. D.: Well, fot· years people have been asking me the question " How does it feel to rept·esent somebody who you be-

"I've written non­fiction before in which I talk about, intellectually, why it is important to represent a guilty party. But it really takes fiction to get into the heart and soul of a lawyer."

lieve may be guilty'?" I finally decided I had to answer that question in a more emotionally compelling way that h elps explain what the dynamic is.

You know, I've written non-fiction be­fore in which I talk about , intellectually, why it is important to represent a guilty party. But it really takes fiction to get into the heart and soul of the lawyer.

I couldn't write about any of my real cases and disclose who I think may be guilty, so I had to create a fictional char­acter, a New York Knicks basketball player who the lawyer first believes is in­nocent and then comes to suspect is guilty. I wanted to show the process by which the lawyer fin a lly comes to b elieve in his client's guilt, how he develops "defense lawyer's blind spot ," how he r efuses to recognize the clues and hints that are all around him , and the realization tha t he may do it again.

JURIS: Are you saying things a bout

the O.J , Tyson, and Von Bulow cases through fiction that you ordinarily could not? A.M.D.: No. Not necessarily. In fact , it [The Advocates Devil] in many ways is the mirror image of Mike Tyson's case. I have publicly declared my belief in Mike Tyson's innocence, and he is the opposite in some ways.

People found it easy to believe he is guilty bee a use he 's black, he 's rough around the edges, he's sexual , he's aggres­sive, and yet the fa cts show the opposite.

On the contrary, my character Joe Campbell is white, smooth, very sensitive to women on the surface, educated, and people were unprepared to believe in his guilt. Finally, his lawyer comes around to believing in it.

JURIS: Why, at a time when lawyers are much maligned, has " legal fiction" be­come so popular?

A.M. D.: Fit·st of all , law is very popu­lar although lawyers are not. Think of all the movies and television shows which show so much of the drama of life today revolving around legal cases.

One has to make a distinction between the lawyer and the law. Law is ver y popu­lat· today in the sense that people enjoy watching it. I think lawyer s are complex figures . The t·e is no Nobel Prize for suc­cessfully defending guilty people , and it's a very difficult thing to explain to many people why we do it.

I tried to use this book as a vehicle for explainin g it. And I also very mu ch wanted to wl'ite about a flawed hero, Abe Ringel, who is not a completely admiraLle character. He is in many respects typical of what lawyers are about toda y. They are concet·ned about how to try a case in the media and in the court of law, personal issues do get in the way. Ethics are com-

Spring 1995. J U ~IS 5

C ( n '<:!r S to I~}'

plex, but at least lawyers think about them a lot.

JURIS: At one point in The Advocate's Devil , Abe Ringel says that he wants to be known as the lawyer who won the Campbell case. Is this what drives you?

A.M. D.: No. I had that early in my ca­reet· when I won some very big cases. But that does drive lots and lots of lawyers. I take on some cases knowing that I'm likely to lose them, cases that are impossible to win. If I wanted only to win cases, I would pick my cases much more selectively.

JURIS: You have your choice of high­profile cases. Which kinds of cases are you likely to take, and which ones are re­jected?

A.M.D.: First of all, the vast majority of my cases are low-profile. I get about a hundred r equests a week fot· represen­tation, and I take maybe five or six a year.

The vast majority of my cases involve obscure people, people on death row, people whose First Amendment rights are violated. Just yesterday T argued. an im­portant case in the Supreme Court of Massac huse tts involving some poor "schnook" who lost everything he had as a result of his exercise of free speech. Those at·e my typical cases.

Over my career 1 have had maybe ten high-profile clients, and the reason for that is that people who have the option to pick lawyers have , fortunately for me, asked me to join their defense team. Some­times, I've said no and sometimes I've said yes. I've turned down a lot of high-pro­file cases . I can' t tell you all the names of clients who I have turned down , but I can tell you about two that were disclosed in the newspapers.

One was Pamela Smart, the woman in New Hampshire who was convicted of hir­ing her high school student to murder her husband. I didn't think I was suited for that. And recently, H eidi Fleiss disclosed that she has asked me to represent heL I haven ' t made a decision about that.

I take cases iJ J feel a passion about them, iJ thet·e has been an injustice , or if I feel I can influence the law in the right direction . A vat·iety of factors motivate me to take a case, but mostly, I have to feel

6 JUP--15 Spri ng 1995

passionately that there has been an injus­tice .

JURIS: In The Advocate's Devil there is an interesting comment about jury se­lection ft·om the perspective of the defense lawyer. Abe Ringel talks about h ow he wants a " boring" jury and his advisor tells him that sports fans can be dangerous on a jury. How does this thinking enter into the O.J. Simpson case?

A .M.D . : It's inter esting how life imi­tates art. Several of the things I mention in The Advocate's Devil , all of which was written before the O.J. Simpson case, have come to pass in that case. Jut·y se­lection is one of them. At one point the judge made comments about O.J. 's facial gestures in the courtroom that might in­fluence jurors.

JURIS: And your Joe Campbell char­acter does that throughout his case.

A.M .D.: Exactly. And there's also the issue of the confiden tiality of communi-

cations to a priest , the issue that came up in O.J. 's case r egarding Rosie Grier, the initial interview with clients, a whole range of things. Every lawyer chooses a jury that will be favorabl e to their client. It would be malpractice not to.

We talk about wanting justice , but in the end, of course, we want to win. Jus­tice is a process, and the process is achieved when both sides play fair and tough , within the rules , wanting to win .

J URIS: But in your book The Abuse Excuse you are quoted as criticizing Wil­liam Kunstler for using the " Black Rage" defense. lsn ' the just doing all that he can to help his client?

A.M.D.: I think it hurt his client. You see, his client didn't want to t·aise the "Black Rage" defense. He imposed it ou the clien t. He did it before evet· examin­ing the client 's case. He just made it up. He had read a book once abou t Black Rage and decided 'Gee , that's interesting' without ever consulting his client. Bill puts

his politics before his clients' intet·ests, and that, I think, is wrong.

J U RIS: O.J. Simpson is one of your high-profile clients and he had the money to affot·d an expensive defense team. \'\'hat can lawyers do as a profession to get more attention focused on the cases in which the defendant ca n't afford the attention, the expensive testing, and the expert defense that O.J. can?

A.M.D . : 0.]. , even with all of his money, and it's limited , doesn ' t hold a ca ndl e against the prosecution 's r·e ­sources . We have a half-dozen lawyers, hut they have the whole L.A. D.A. 's of­fice. We have three or four investigators, they have the whole L.A.P.D. We have to pay for our lab work, they get it for free. That all comes with the turf. No one can compete with the resources the prosecu­tion has in a state like California.

It is very important that everyone should have the ability to compete. When people don't have the resources to pay for investigators, they have to accept the state 's version of facts. They have to ac­cept the state's investigation and foren­sics work, and that 's terrible.

In the Von Bulow case, we were able to t·edo all the tests the state had done, and prove that he could not have possibly in­jected her [Sonny Von Bulow] with insu­lin. Had he been "the butler" instead of Klaus Von Bulow, he'd still be in jail to­day.

JURIS: Abe Ringel's daughter gives him an idea for a closing argument, that life is not like TV, and sometimes ther·e are irrelevant facts and coincidences which appear to be related to the crime, but are not. But the O.J. case did play itself out on TV, in front of millions of people, as many as 70 million the night he took his famous ride in the white Bronco. How does this change the way your team approaches the case?

A.M.D.: People do sometimes think that Life is like TV, that there are neat con­clusions to every story, and that the truth will <:orne out before the last commercial.

By the way, that stor·y is a tn1e one. I actually had a case in which my son gave me that analogy to use , and we woo the case with it. In fact , most eve1·ything in

I

Alan Der.shotl'itz

"In terms of the 0.]. case, I think it is very important for us to be able to break that confusion between fiction and reality, and persuade the jury that they can only look at the evidence subn1itted in court, and make conclusions based on logic and experience, but not on what they see on TV."

the book is true in some respect. I'm not a fiction writer by tr·ade , I am a lawyer who has a lot of experience. I decided to write a novel based on that experience. Every character in the book is based on composites, people who have been in my life.

In terms of the O.J. case, I think it is very important for us to be able to break that confusion between fiction and real­ity, and persuade the jury that they can only look at the evidence submitted in court, and make conclusions based on logic and experience, but not on what they see on TV.

JURIS: What about the dilemma that your character Abe Ringel faces? He has to choose between playing by the rilles and protecting innocent people that his client might harm. Which would you choose if you were in that situation, and how would you advise your colleagues to approach this choice?

A.M.D.: It's interesting. When I showed the book to my fr·iend Saul Bel­low, who is a great writer, he said he loved the book, loved the char·acters and the story, but hated the ending. Now I don't want to give away the ending for· your readers , but in the end, it doesn ' t logi­cally flow that the ethical considerations will resolve the case. Real life tends to pre-

vail over intellectual discussions. And in the end, Abe decides to do the right thing and not turn in his client.

I don't know what I would do iffaced with that. I've had a case like that , but I was convinced the guy would never do it again and fortunately, he has nevet·, in fact, done it again. But if I had a person who I knew for sure wouJd kill or would rape, I don't know what I would do.

JUlUS : Now that you have had a taste of writing fiction, what is next for· you as a writer? Is thet·e more fiction in the pipe­line?

A.M.D. There's mo•·e fiction coming. My publishe•·loved the book and gave me a two-book contract. The next book, which I've already stat·ted writing, is a political thriller set in the Supreme Court of the United States. It's about something that almost happened once. I can't say more than that!

Gerald W Yanity i.s a third year day student at Duquesne University School of Law and is Managing Editor of J ur·is.

Spring 1995 JUI'-15 7

ScottTurow Turow)s novels have earned him the distinction of America )s prominent author of legal thrillers By Aaron J. DeLuca

S cott Turow is not merely another attorney-turned-write!". To be pre­cise, Tm·ow, the father of the legal

thriller, is a writer-turned-attorney­turned-wt·iter.

A graduate of the pt·estigious writing program at Stanford University, Turow's early works were not met with ct·itical ac­claim. However, after his first year at Harvard Law School, Tm·ow got the pen working. One L, a look at Harvanl's ver­sion of the Socratic Method, sold over 400,000 copies and is considered required t·eading for law students.

Returning to his homPtown, Turow be­gan his legal career at the U.S. Attomey's office in Chicago. There he became wel1 known for his role in the pt"Osecution of crooked judges in the Operation Grey lord probe. Writing part time , Turow com­pleted his fit·st best seller, Presumed In­nocent.

A fter an eigh t-year stint as a pros­ecutor, Turow switched to white­coil at· d e fense work at

Sonnenschein, Nath & Rosenthal. As a part-time partner, Turow was able to com­plete two more best sellers , The Burden of Proof and Pleading Guilty.

Recentl y, Aaron J. DeLuca was able to track Turow down and ask him a few questions.

8 JUI!-..15 Spri ng 1995

JURIS: Why are Americans so en­thralled with legal thrillers?

TUROW: I think the answers are com­plicated. Americans are obviously much more in terested in the law than they have ever been. I think tha t relates to the fad­ing away of what used to be othee institu­tions or the establishment of values, es­pecially lor.a l communities, religious in­s titutions , neither one of which seem to have the same hold on people any longet·.

And as a result , the law is more promi­nent in people 's moral life . No t to men­tion the fact that it is simpl y moee promi­nent in actuality.

JURIS: In an interview with People magazine, you stated that , "Lawyers are figures of the Madonna Complex." Could

you explain that for our readers"? TUROW: This is consistent with the

first answer. By the Madonna Complex, I mean that people are both fascinated and repulsed-just like people seem to be by Madonna . P eople adtnire the power , privilege and money tha t lawyering seems to bring. They despise the compromising, the rationalizing, what they r egard as de­ceit that goes in the name of reason.

JURIS: Almost all legal thrillers have endings in which everything turns out OK at the end . I s this feature, which is some­what divot·ced from reality, critical to a book's success?

TUROW: I think reader s prefe t· that. Readers like happy endings. I was sort of chastened by some of my loyal r eader s

because Pleading Guilty doesn't have what they regarded as a happy ending. People want to be entenained and uplifted by popular literature, but I think the dif­ference between a popular reader and a more sel'ious reader is the willingness of the more serious reader to come to grips with reality through art. That's a sedous difference of opinion between certain classes of t·eaders.

JURIS: Before starting at Sonnenschein, Nath & Rosenthal as a criminal defense attorney, you worked as a federal prosecutor in Chicago. Which side of the table has been better for pro­viding material for your books'?

TUROW: I think the law is a pretty fer­tile field, no matter what.

JURIS: When you choose cases, is their potential for a story ever a factor in your eonsidera tion '?

TUROW: No, absolutely not. JURIS: The reason we are asking is

that Alan Dershowitz has just come out with a book entitled The Advocate:S Devil. ln The Advocate :S Devil , an attorney is representing a famous athlete charged with a crime.

TUROW: Yes, I know, it looks a lot like Mike Tyson.

JURIS: Or O.J. Simpson . TUROW: I don't do that. JURIS : Is there any conflict of inter­

est involved in this situation? TUROW: I wouldn ' t comment on that ,

but it seems to me that the ethical precept that a lawyer is not supposed to make use of his client's afiairs for his own benefit, except in terms of the way that the remu­nera tion is agreed between lawyer and cli­ent. It's pretty obvious to me. There are cases in this circuit prohibiting flatly ar­t·angements in which lawyet·s make agree­ments with theit· clients to write books about the case.

JURIS: Robert Shapiro and Johnnie Cochran have undoubtedly received much free publicity due to their representation ofO.J . Simpson. Towhatextenthaveyour novels attracted business to your legal practice?

TUROW: I'm sure they have. It 's kind of a wash in the sense that thet·e are people who come for that t·eason and there are people who stay away for that reason. They assume either that I am distracted

or they don't want to take the chance of ending up in a book. I think it has kept as many people away as it has brought, but undoubtedly it has brought some.

JURIS: Because of your prominence, do you believe that clients, jurors, or judges expect more from you as an attor­ney?

TUROW: Sometimes I think the big­gest problem I have tends to be with judges, although occasionally with oppos­ing counsel. I had one really unpleasant intedude with a lawyer last yeat· where I really felt my prominence had driven this guy to new heights of unethical behaviot·. But generally speaking, I am well treated by both opposing counsel and jurists, but if I am going to have a problem it's usu­ally with judges who are accustomed to being the biggest name in the room.

JURIS: Have you encountet·ed jeal­ousy?

TUROW: No, its not jealousy. It's a matter of"We're going to cut this national figure down to size" phenomena. I cer­tainly don't go into any courtroom with the idea of throwing my weight around. Most of the time I am treated pretty nor­mally. I practice, for the most part, in the courthouse where I gt·ew up as a lawyer, the Federal Courthouse in Chicago. Most of the judges are people who I either prac­ticed with or against or before since I have become a lawyer. When I walk into the Northern District of Illinois, I really am

just another lawyeL JURIS: Time magazine described you

as "The bat·d of the litigious age." Is there any responsibility attached to such a title'?

TUROW: I certainly take my own work seriously. Beyond that , I don't feel any other responsibility, but I try to take both my audience and the work that I do seri­ously.

JURIS: What types of reading mate­rial do you prefer?

TUROW: I tend to read serious con­tempora t·y fiction. Jane Smiley or Ann Tyler. Some more-offbeat people . Dennis Johnson. It's a long list. Updike. There are lots of names there but I suppose the thing people would find most surpt·ising is that generally speaking my t·eading does not come off the best seller list.

JURIS : In addition to being a re­spected attorney and a best-selling novel­ist, who is Scott Turow?

TUROW: [Laughing.] A father, a hus­band , a mediocre squash player, and a golfer who would like to break a hundred some year.

Aaron J. DeLuca is a third year day swdent at Duquesne University School of Law and serves as a member of the busi­ness staff of Juris.

"People admire the power, privilege and money that lawyering seems to bring. They despise the compromising, the rationalizing, what they regard as deceit that goes in the name of reason."

Spring 1995 JV~I5 9

A rtich!.';

A Global University Duquesne University School of Law has established exclusive ties with several law schools throughout the world. These programs are designed to provide more educational opportunities for the students and faculty at all of the institutions. By Clifford F. Chin

"What would it profit a man if he would gCtin the world .. . ?"

-Matthew 16:26

I t appears that Duquesne Univer­sity School of Law has adopted this biblical axiom as its motto in light

of Duquesne's recent implementation of three international exchange programs.

" Duquesne Law School wanted to ex­pand internationally into those areas of the world which we believe will experience the most growth and hold the most im­portance in the near future ," said Dean John Rago. "Hence, we looked at China, ... Ireland and Costa Rica as potential areas of interest. "

In allowing its students and faculty to participate in foreign exchange programs, Duquesne hopes to provide its faculty and students the opportunity to study foreign legal systems, the different governmental agencies and the various business oppor­tunities in each country, explained Pro­fessor Frank Y. Liu , Director of the Law Library.

These study-abroad programs could prove to be invaluable to a law student's education because of the increasing role of international commerce in world af­fairs and the ever-shrinking political economy, Liu added.

The Beijing Program traces its roots to August 1990 when Professor Liu trav­eled to China to deliver a speech entitled "American Legal Information Systems" at the China University of Political Science and Law (CUPL).

Because CUPL's faculty and students had been so receptive ofLiu and appeared so genuinely interested in American law,

10 J U P • .l i Spring 1995

r

"Duquesne Law School wanted to expand internationally into those areas of the world which we believe will experience the most growth and hold the most importance in the near future. Hence, we looked at China, .. .Ireland and Costa Rica as potential areas of interest."

he began to envision a possible exchange program between the schools . So when Liu met with CUPL's president, Chen Guang Zhong, Liu suggested the possibil­ity of an exchange program involving the two schools.

" Originally, we [Duquesne and CUPL] talked about developing an exchange pro­gram involving only faculty and library materials. Both Pres ident Chen and I thought the exchange of library materi­als and faculty visits were excellent ideas," said Liu. "So we drafted a Memo­randum of Undentanding which I brought back to Duquesne for faculty approval. "

D ean Emeritus John Sciullo ex­amined the document and strongly approved of the joint­

venture program , according to Liu. Sciullo then introduced the idea of start­ing an exchange between Duquesne and CUPL to the faculty and encouraged the faculty to approve of the program, Liu stated.

"The faculty was very receptive of the idea of an exchange program , in large part because of Dean Sciullo. I applaud the faculty's vision in seeing the importance and utility of such a program," said Liu.

The faculty approved of the exchange program between CUPL and Duquesne, deciding to implement the program in stages. The first stage occurred in March 1991 when President Chen and a delega­tion of three CUPL associates visited the Duquesn~ Univ~rsity campus and the City of Pittsburgh.

W hile in Pittsburgh , the Chinese contingent observed the daily operations at the

School of Law and visited various Pitts­burgh sites , Liu said

The Chinese delega tion also met with Sciullo and Provost Michael P. Weber to draft a more detailed exchange program between the two institutions.

In its finalized form, the p1·ogram pro­vided for the annual exchange of two scholars from CUPL with two Duquesne

faculty members. Additionally, the par·­ties agreed to the exchange of duplicate library materials, said Liu.

In July 1991, Weber, School of Law Professor Nick Fisfis and Liu travelled to Beijing as part of the yearly exchange between CUPL and Duquesne.

While in Beijing, the Duquesne del­egation and the CUPL administration formally executed an agreement provid­ing for a three-year exchange program of visiting scholars and library materi­als.

Among the Duquesne faculty members who have travelled to Beijing are Pro­fessors Mark Yochum and Alfred Pelaez.

In April 1994, CUPL and Duquesne sponsored a workshop in Beijing in which nine practicing attorneys from around the United States participated.

This workshop was the second stage of the Chinese-Duquesne exchange plan. Proclaiming this workshop a success , Liu said, Duquesne and CUPL began to think of expanding the exchange program to include a summer exchange in Beijing for law students.

A !though the details were left open until CUPL's new presi­dent, Yang Yong-Ling and

Duquesne's new dean, Nicholas Cafardi took their respective offices, CUPL and Duquesne tentatively agreed to co-spon­sor a summer school program.

After obtaining American Bar Asso­ciation ("ABA") approval for the ex­change program, Duquesne University President John Murray and President Yang for-malized the agreement on Octo­ber 25, 1994.

Also in April 1994, Duquesne and CUPL renewed the former scholar ex­change program. The new exchange pro­gram has a few amendments , according to Liu. Among the changes was the addi­tion of one more CUPL administrator coming to Duquesne. This Chinese ad­ministrator, however, would only study the administration practices of the School of Law itself, explained Liu.

The Beijing Summer Program is the first and only study abroad program in Beijing. Professor Pelaez was appointed the Director and Liu the Associate Direc-

tor. According to Liu, the program entails an in-depth study of the Chinese legal sys­tem.

In the three-week intensive survey, students from AHA-approved law schools will study Chinese legal history, constitu­tional law, civil procedure and law, crimi­nal law, real estate, intellectual property, foreign investment and tax law, media­tion, international arbitration and the lawyering system in China. Also included in the summer program is an instructional course in the Chinese language.

While in China, students participating in the program will live in the Jimen Ho­tel , a modern hotel within walking dis­tance of the CUPL campus.

S tudents also will participate in field trips to the National Peoples'

I Congress , courts, prisons, Chinese law firms and foreign law firms based in China.

Participants also will take tours of Tiananmen Square, the Forbidden City and the Summer Palace. Participating students will receive four AHA-approved credits.

I nlernaUona! Ties

D uquesne University School of Law has set the cost of tuition, which includes the lectures and

course materials, at $1,485. Room and board is set at $500. Such accommoda­tions include a double occupancy room in the Jimen Hotel and three Chinese food meals per day. Single rooms are set at a higher price.

"We have had many inquiries concern­ing this program from many law students from different law schools around the nation," Liu said . " Given this strong re­sponse, I believe the Beijing exchange this summer will be a great success ."

"Build it and they will come." Shoeless Joe Jackson in Field of

Dreams .

Duquesne's "Field of Dreams" is near­ing completion, at least the Costa Rican part. Beginning this year, professors from Duquesne Law School will teach and lec­ture at the Judicial School of the Repub­lic of Costa Rica and Judicial School fac­ulty will reciprocate by teaching Costa Rican law at Duquesne .

Spring 1995 JU~IS 11

Articles

This exchange became possible when Duquesne University School of Law be­came the fit·st American legal institution to sign an academic cooperation agree­ment with the Judicial School. Duquesne Univet·sity President Mun-ay and Edgar Cet·vantes Villalta, President of the Su­preme Court of Justice of Costa Rica , ex­ecuted the agreement establishing the fac­ulty exchange in the summer of 1994.

T het·e were a number of reasons Duquesne established ties to the Judicial School.

First, the prestigious Judicial School is well respected internationally, said School of Law Professor Robert Barker. The Judicial School is supervised by the Supreme Court of Costa Rica and pro­vides Costa Rican judges and other Cen­tral American judges continuing legal edu­cation courses.

"We [Duquesne] felt it would be ben­eficial for Duquesne to take advantage of the expertise of the Costa Rican judi­ciat·y," added Barker.

Secondly, with the increasing role of international commerce in the Central American region , Duquesne believed the establishment of academic ties with an institution such as the Judicial School

12 )UP--IS Spring 1995

wouJd b e beneficial. "There will be an in­creasing need for familiarity with Central American law and the ramifications com­merce with that region of the wodd will have on the U.S." said Professor Barker. "The ongoing corrobot·a tion with the J u­dicial School is a good opportunity for Duquesne."

P rofessor Barker, in a Pittsbnrgh Legal }onrnal interview, said, "This agreement will help spread

Duquesne University's reputation to other parts of the world and broaden our fac­ulty experience."

Costa Rican Supreme Court Justice

Luis Fernando Solano first appwached Professor Barker in 1993 regarding a pos­sible academic exchange between the schools.

" Because of the importance of the United States both commucially and po­litically in the world today, the Judicial School was looking to add a United States law component to its cuuicuJum," t·elated Pt·ofessor BarkeL

"We are both pleased and flattered tha t the Judicial School would look to Duquesne as its primary source of U.S. legal education," h e added.

T h e agreement pt·ovides that law professors from Duquesne and the Judicial School will spend a

week to 10 days at the other institution.

While visiting the oth e t· institution , according to Barker, the professor will conduct guest lectures and seminars on various aspects of the law. The Judicial School was particulady interes ted in American Constitutional law, Evidence and Legal Writing.

In the near future , one or more fac­ulty from each respective school will be­gin puticipating in the pt·ogt·am.

" Duquesne's collaboration with the Judicial School is an excellent opportu­nity for both institutions," said Barker. "And we look forward with grea t antici­pation to starting the faculty exP-hange."

Clifford F. Chin is a third year day stn­dent at the Dnquesne University School of Law and serves as Assistant Prodnc­tion Editor of J ut·is.

"There will be an increasing need for familiarity with Central American law and the ramifications commerce with that region of the world will have on the U.S. The ongoing corroboration with the Judicial School is a good opportunity for Duquesne."

I ntenzational Ties

Duquesne cetnents ties with Irish School By Mary R. Castelli

H ow can attorneys familiarize themselves with the interna­tional economy'? Duquesne Uni­

versity School of Law Professor Maureen E. Lally-Green knows Duquesne is com­mitted to familia ring lawyers with the glo­bal community.

Duquesne shows its commitment by implementing a Continuing Legal Educa­tion ("CLE") program with the Univer­sity College Dublin School of Law in Dublin, Ireland.

This summer, Duquesne will kick off a Pennsylvania CLE Board-approved pro­gram in Dublin, where attorneys can earn ll hours of substantive law, practice and procedure credits and one hour of ethics, professionalism or substance abuse CLE credits.

The three-day program is designed to benefit attorneys and legal specialists in law firms, commercial and financial busi­nesses and banking entities, state and fed­eral governmental agencies and others with an interest in the law of the Euro­pean Union.

"Although this pat·tnership is strictly for the continuing legal education of at­torneys, it has earned Duquesne greater respect in the legal community and has al­ready began to foster ideas for a faculty and student exchange program;" Lally­Green stated.

The Dublin CLE progt·am evolved from a conversation between Professor Lally-Green and Pennsylvania Supl·eme Couet Justice John Flaherty in 1993. They were discussing Duquesne's commitment to familiarizing lawyers with the global community, and Lally-Green wanted Duquesne University to play a vital role.

Lally-Green stated that American law­yers increasingly have clients who do busi­ness with citizens of countries which are members of the European Union, the world's largest trading block of countr-ies.

Knowledge of the laws and the work­ings of the European Union, therefore, will be a powerful tool American lawyers

will use in effective legal representation of clients. Ireland is positioned both geo­graphically and economically to play a role in the European Union, Lally-Green added.

B ecause the idea of a CLE program in Ireland was well received, con­tacts were initiated with Dean

Paul O'Connor of the University College of Dublin, Justice Hugh O'Flaherty of the Supreme Court oflreland and other mem­bers of the bar.

In February of 1994, Duquesne Uni­versity School of Law Dean Nicholas Cafardi and Lally-Green traveled to Dublin to visit the University College Dublin School of Law, and within a year's time the pwgram was implemented.

According to Lally-Green, the Dublin program is the first and only CLE pro­gram in Ireland. The program is being held for three consecutive days beginning June 27, 1995.

The program will be held in the Jurys Hotel, a five-star facility which offers splendid accommodations for the class sessions. It is located in center-city Dublin in the Ballsbridge section near the Ameri­can Embassy. J urys is within walking dis­tance of many historical sites and govern­mental buildings of Dublin.

Dr. John E. Murray, Professor of Law and President of Duquesne University, will speak, as well as

Liam Connellan, a high-ranking member of the Economic Union.

In addition to the classroom instruc­tion, there will be a reception with mem­bers of the Supreme Court of Ireland. Also, participants have the option of en­joying up to three days of golf or of ex­ploring Irish history and culture.

The tuition is $595. This amount in­cludes the non-refundable deposit of $150, all lectures, instructional materials and receptions. For lawyers who have graduated from law school within the past five years, tuition is $495. Lawyers seek­ing CLE credit in Pennsylvania should add $60 to the applicable tuition.

A special arrangement for accommo­dations is available to program pat·tici­pants and their families at Jurys. The daily charge at J urys includes the room, full breakfast each morning, taxes and service charges. The daily, double occu­pancy, per-person charges range from $ll0 to $135.

Mary R. Castelli is a first year evening student at Duquesne University School of ' Law.

Spring 1995 )U~lS 13

Articles I

Foreign Exchange A Duquesne Professor travels to the Far East to impart American law to a group of bright and receptive students at a Chinese University.

By Mark D. Yochwn

Duquesne University School of Law has a close friendship with China University of Political Science

and Law (CUPL) in Beijing. This relation­ship has been cultivated under the fine hand of our diplomatic Director of the Law Library and Professor of Law Frank Liu , with the eager aid of our counterparts in Cllina 's preeminent law school. In 1995 , the schools will commence a program for study in Beijing for law students . In 1994, we began a successful seminar for prac­ticing lawyers . Since 1992, we have had a fruitful academic exchange, with profes­sors of law from each university visiting the other. In June of 1994, my turn came for a month in "old Beijing."

Samuel Johnson said that "the use of traveling is to regulate the imagination by r eality. " My mission was to teach funda ­mental s of income taxation and bank­ruptcy to young Chinese lawyers. My American colleagues viewed this assign­me nt with skeptic ism . Chinese com­munism , one incorrectly reasons, has no legal principles, no need for taxation , and no need for d ebt collection remedies. Without private property, who cares? Worse, without English, how could you make them care? I had been, nonetheless, assured by our Chinese friends that my topics were just fine and that my students had a firm grounding in English. Besides , such a problem should barely phase the modern professor. I peer into the fresh fa ces at Duquesne and occasionally re­ceive lost looks in return and become con­vinced that my topics are not fine and that my students and I do not share a language.

In 1994, summer began in Beijing in May with an intense sun and energy-sap-

14 JU fi,JS Spring 1995

"Although I walked the Great Wall and entered the Forbidden City ... the best part of my trip was the hours spent in the boiling classroom with the warm and bright students."

ping heat. The classrooms at CUPL are modest affairs, not air-conditioned, desks that seat ten in hard wooden chairs , fifty or so in a room, a t·aised platform for the teacher, a hard slate board. The students were younger than mine at home on the whole, yet these were graduate law stu­dents. In China , law is an undergradu­ate degree. The group was split evenly by sex. They carefully wiped off their seats and desks. Most carried a jar of warm­ish water with loose leaves of tea in the bottom and a Chinese-to-English dictio­nary. Even at eight in the morning , the room was sauna hot.

A lthough I walked the Great Wall and enter ed the Forbidden City, ate two dozen meals of palate bog­

gling perfection , and gazed upon sites of

dazzling ancient accomplishment and cul­ture , the best part of my trip was the hours spent in the boiling classroom with the warm and bright students.

Their comprehension of English was excellent. In China, the younger educated people have had English classes virtually their entire educational career. Older folk s, suc h as the good professors of CUPL, speak virtually no English. Law is language, after all , even in taxation and bankruptcy.

For example , we explored the law of gifts in tax and property. In English and Chinese, the simple word gift is inadequate to convey the difference between a taxable gift for gift tax purposes, an excludable gift for gift tax purposes, and a gift which is effective under property law to convey good title . We played with the language of the law in Socratic style (although none of us knew Greek). Their enthusiasm and consideration and thought was palpable as the sweaty days went by.

A n American academic 's concern might be that the repressive bur­d en s of Communist ideology

would inhibit free discussion and would make examination of two hallmarks of free enterprise (taxation and bankruptcy) un­tenable. My experience was rather that the Chinese view of law, or perhaps the doing of law, was that the act was experimentaL That is , the goal is to create a legal system which in theory maximizes the good for the greatest, but the process of reaching that goal involves trial and input from othe r cultures ' experiments .

There is private property in China , but only personal property. All land is owned by the state . If you want to use land for commerce, you bid for it with the local government and , if successful, enter into

a long term lease. Business is everywhere in Beijing. There is an income tax and a course in the subject at CUPL which law students are required to take. Within the year, China has gone to a value-added tax as the main source of revenue.

E venin this Communist state, taxes must be imposed to pay for gov­ernment. The students recognized

that deficit spending, a failure to collect sufficient revenues to cover expenditures, itself is a form of taxation. Until recently, when China ran a deficit, the government printed more yuan. Now, China has be­gun to sell its bonds, in small careful steps (for China and the investor) on the inter­national market. All recognize the prob­lem with this fundraising is in the mar­ketability of Chinese currency.

In my conversations with my students and the wise professors at CUPL, they were most amazed by our nation's ability to collect taxes through the system of vol­untary compliance. We agreed that the key to efficient coUection is a complemen­tary and uniform system of bookkeeping, which serves as a check for the tax collec­tor, bookkeeping for which there is an eco­nomic incentive to be accurate. We have such a well developed system, a product of a business person's desire to know the origin of his profit and loss and of inves­tors' and lenders' interest in valuing their risk and return. China, only within the past two years, has developed a program for certifying domestic public accountants and that is only a program of several weeks. But China at CUPL is not in a rush; the students and professors think about what must be done, take measured strides toward accomplishment, consider­ing the effect of each step they have taken. A 5 ,000 year-old culture can take its time.

There is a bankruptcy law but in their careful spirit of trial and minimized er­ror, that law is effective in only a few prov­inces. China has no lien law, no security for debts, unless you are given a priority through a court process similar to our execution liens. China is reluctant about having American-style bankruptcy be­cause their first concern is what to do with the displaced workers. As evidence of this serious worry, severe mismanagement of a commercial enterprise is a crime.

I suggested that law for the security of debt would encourage investment. In part, the Chinese failure to create such a law is a product of no private ownership in land and no historical experience with mortgages. But what of the workers, they asked, and I could only answer that we believe that a more efficient use of the capital reallocated tht·ough bankruptcy will provide employment in the longer run. Their current system, however, slyly fits the country's plans. The failure to provide security for debt means that in­vestment in China is exactly that. China does not want to mortgage itself but is will­ing to take on partners for development. I spoke to a large class of undergraduate law students about the role of the lawyer in society and ethical responsibilities. I told them that many people in our culture believe that we have too many lawyers and that lawyers are the butt of jokes which lampoon their avariciousness, callousness and duplicity. These reactions to lawyers was unthinkable for these students. The law is to be respected and, consequently, those knowledgeable in the law must be t·espected and cherished. The students

---------------

I 1 zterJ zat io1 zal Ties

recognized the need for lawyers' skills in regularizing enterprise and in dealing with the world. The cynic may say that these attitudes are easy to hold in a country with more than one billion people and around 5,000 native lawyers. But their respect for the rule of law is genuine and, at times, moving. These students labor hard under tough conditions to do well with the law.

T he great hosts of CUPL fed me a dumpling dinner, a farewell ban­quet the night before I left. Dump­

lings at·e given the traveler, wishing him good fortune and safety on the journey, hoping that one day he will return. There must be a special contentment which fol­lows being stuffed with dumplings, feel­ing like a dumpling oneself. Even as I left the table, after an exchange of gifts and goodbyes with the wise teachers at CUPL, I began to miss my eager Chinese students and their love of the law.

Mark D. Yochum is an Associate Pro­fessor of Law at Duquesne University School of Law.

Spring 1995 )U II-.. 11 15

Articles

Sick days Workers normally take time off after contracting illnesses outside the workplace. Increasingly) employees are getting sick due to conditions at work.

By Susan M. Fix

Increasing public awareness of poten­tial health risks caused by environmental contaminants has lead hundreds of work­et·s to the conclusion that going to work may literally be making them sick.

What happen s when a normally healthy employee relocates to a new build­ing, and then suddenly finds himself or herself experiencing unexplained health problems?

This is what is happening across the United States in commercial office build­ings , hospitals and courthouses. Experts began studying this r eported sym­ptomatology in the 1970s when it ap­peared as though there was a relationship between employee health complaints and time at work.

Gradually, investigators began to iden­tify a collection of work-related symptoms known as "sick building syndrome."

The World Health Organization de­fines "sick building syndrome" (SBS) as an excess of work-related irritations of the skin and mucous membranes and other symptoms, including headache, fatigue and difficulty concentra ting. 1

It is not clear from the definition the frequency of symptoms or irritations re­quired to amount to an excess. 2 Other symptoms which have been identified in­clude a dry cough , dry or itchy skin, diz­ziness, nausea, blurred vision, memory loss , tremors , general malaise , fatigue·1

and increased sensitivity to odors.4

SBS should not be confused with "building-related illnesses," such as Legionnaire's Disease,5 where a known disease process is caused by a specific bio­logical or organic agent. SBS is also dis­tinguishable from " tight building syn­drome" which occurs from r educed ven­tilation in heavily insula ted buildings. 6

Anothet· unique characteristic of SBS is

The World Health Organization defines "sick building syndrome" as an excess of work-related irritations of the skin and mucous membranes and other symptoms, including headache, fatigue and difficulty concentrating.

16 JUP-..IS Spring 1995

that the symptoms are usually relieved upon removal from the wod< environ­ment, as opposed to building-related ill­ness which often require prolonged r ecov­ery periods. 7

A building is labeled as being "sick" when 20 percent or more of a building's occupants complain of health problems, which can be directly related to being in­side the building, from an unknown cause for at least two weeks. 8

Complaints of eye , nose and throat ir­ritations, headache and con centration dif­ficulties began to appear in the late 1970s when the ventilation standards for out­door air were lowered and buildings were heavily insulated due to the energy cri­sis . 9

Sealed buildings with low fresh-air ven­tilation ratios became idea l breeding grounds for the spread of bacteria, fungi, molds, and spores through the heating, ventila tion and air conditions units. 10

Inadequate or uneven ventilation can also cause fluctuations in temperature, humidity and air flow which affect indoot· air quality. Other sour ces which have been identified as factors contt·ibuting to SBS include volatile organic chemicals (VOCs), carbon monoxide, carbon diox­ide, environmental tobacco smoke (ETS), radon , asbestos, ozone, formaldehyde , ni­trogen oxides and chlorofluorocarbons (CFCs).

Forrnaldehyfle can be found in paper towels , permanent press clothing, floor coverings, carpet backings and adhesive bindings , facial tissues , cosmetics, deter­gents and gas used for stoves . 11

Carbon monoxide is typically pro­duced by environmental tobacco smoke, water heaters, gas or coal heaters , gas stoves and through ingestion of vehicle ex­haust fumes from air intake vents. Nitro-

gen oxide gases are commonly released by gas stoves.

Radon is the natural radioactive bypwduct of uranium decay that seeps into buildings through the ground. Ozone can be released from indoor sources such as photocopy machines. VOCs include various solvents, gasoline, chlorinated water and silicone caulking. CFCs are found in air .,..,.. .,_,.,,..,. conditioning systems and in certain build­ing insulation. 12

Specific precipi­tating factors , such as microbial contamina­tion of humidifica t­ion systems, can be identified in 25 percent of cases. 13 The remaining 75 per­cent are unexplained .14

A t first it was thought increasing the outdoor air supply would de­crease symptoms, but a 1993

study in the New England Journal of Medicine reported that increasing the sup­ply of outdoor air did not improve envi­ronmental ratings nor did it the reduce number of reported symptoms. 15

It has been estimated that 10 million to 25 million workers in the United Sta tes will t·eport symptoms characteristic of SBS .16 The evaluation and "diagnosis" of a sick building is an ex tensive and costly undertaking requiring the involvement and coordination of the efforts of pulmonologists, epidemiologists, toxicolo­gists, engineers, occupational therapists and indus trial hygienists .

The economic consequences are over­whelming if one calculates the cost of re­duced worker productivity, time absent from work, costs of medical tests, in­creased energy costs due to increased ven­tilation requirements, cost of abatement pt·ocedures, cost of workers ' compensa­tion, disruption of business activities, cost of outside consultants, cost of corrective interventions and ultimately the cost of litiga tion.

0 ne major obstacle for building owners and employers is that no

single federal, state, or localgov-

ernmental agency is responsible for the regulation of indoor air quality. The Environmental Protection Agency (EPA) , the Occupational Safety and Health Administration (OSHA) and the Consumer Product Safety Commis­sion (CPSC) are a few agencies which regulate ]mown hazardous contaminants such as asbestos, pes ticides and chemical fumes commonly emitted by consumer products.

Other sout·ces also provide r ecommen­dations. The American Society of Heat­ing, Refrigeration and Air Conditioning (ASHRAC) has issued a ventilation stan­dard of 20 cubic feet per minute of venti­lation or more per person , depending upon other circumstances such as fut·nish­ings and equipment. 17

Currently, appropriate parties can vol­untarily request a H ealth Hazard Evalu­a tion (HHE) by the National Institute for Occupational Safety and H ea lth (NIOSH). After r eceiving an HHE, a NIOSH team reviews the request, evalu­ates potential hazards and then makes correc tive r ecommendations.

These, however , are only advisory in nature and He not legally binding on the employers. After being pressured b y unions and health advocates, OSHA es­tablished standards goveming indoor air quality in non-industrial buildings.

Provisions under the proposed stan­dard would (1) require affected employ-

ers to develop an indoor air quality compliance plan with

subsequent implementation of that plan ; (2) develop con­

trols fot· specific known contaminants; (3) sepa­rate enclosed rooms with direct outside exhaust fot·

llill~~ smoking; (4) provide for adequate training of re­

sponsible building workers in maintenance of ventilation systems; and (5) provide for

maintenance of reco1·ds in­cluding complaints of building­

related illnesses .18

However , these proposed stan­duds have yet to be adopted due to continued political pressure over the ETS provisions and de­bate over the lack of scientifi­

caUy substantiated safety thresh­olds and causallinks. 19

With these being only a few examples, one can see that building owners and em­ploye rs are faced with the burdensome task of discovering standards amidst a complicated regulatory maze.

SBS litigation is especially troublesome because many of the symptoms cannot be adequate ly linked to a single etiology. Modem commercial buildings are inun­d a ted with countless biological microor­ganisms, chemicals and substances which in and of themselves , ot· in combination, ma y or may not precipitate the symptoms at issue.

This is further complicated b y the fact that many SBS symptoms are difficult to objectively assess and document. Sensi­tivity and reaction to od o rs and sub­stances and the perception of the severity of symptoms varies with each individual. 20

This forces injured parties to overcome lingering attitudes of mass psychogenic illness and h ypochondria , even though SBS is scientifically recognized .

V ictims of SBS have sought to re­cover under traditional common law pt·inciples of contract, nui­

sance, negligence, s trict )jability, and ex­press and implied warranties. Defendants in these actions have included building owner s, tenant employers, design archi­tects, construction companies, and manu-

Spring l 995 )U fl...l 5 17

S ic/.z B u if dings

facturers of heating and air-conditioning systems.

In a California SBS case, a trial judge ruled that the designers, general contrac­tors and installet·s of a ventilation system could be held liable under the doctrine of strict liability, if the jury found the sys­tem to be a defective pt·oduct. 21

A reo~nt r.ase vividly illustJ·ates what a costly proposition SBS litigation can be. In suburban Chicago, employees of the DuPage County Judicial and Office Cen­ter sued when more than 450 of the courthouse's 700 employees reported typi­cal SBS health problems. 22

The $53 million courthouse, which opened in the summer of 1991, was lav­ishly decorated in marble and wood and was furnished with all new furniture and office equipment.

The county's legal saga began when 20 employees wet·e sent to the hospital com­plaining of respiratory ailments. But even after measures were taken to con·ect a malfunction in a humidifier, which was thought to spread chemicals through the ventilation system, the employees contin­ued to experience symptoms. It was re­ported that nearly 10,000 hours of worl< were lost due to illness. 23

References

l. Richard Menzies, M.D. , et al.. The Effect of Varying Levels of Outdoor-Ai1· Supply on the Symptoms of Sick Building Syndrome, 328 NEW Ex1;. J. Mm. 821 (1993).

2. Menzies, et al., supra note I, at 824.

3. Diane R. Gold, M.D. , MPH, ludoOI·Airl'ol­lution, 13 Cusrcs IN Cllt:ST MEDICI"'E 215, 225 (1992).

4. Bo Holma, M.D. , Ph.D., Occn•ATIO At MEDI­CINE 1067 (3d ed. Mosby 1994); see also StPven A. Loewy, George W. Kelly & Mar tha D. Nathanson, Indoor Pollu.tion ilL Commercial Buildings: Legal Requirements arul Emerging Trends, 3 U.BALT.].ENVTL.L. 29 (1993).

5. See Gold, supra note 3, at 221 .

6. Bo Holma, M.D .• Ph. D .• OccUPATIOMI. Mr.Ol­CINE 1067 (3d ed. Mosby 1994).

7. ld.

8. ld. Ill 1071.

9. KothlePn KreiHs, M.D .• The Sick Building

18 ) Vfl.JS Spring 1995

Preliminary studies, by outside con­sttltants, indicated that the problems wet·e caused by a faulty ventilation system and from chemicals released from furnishings. The county then brought a suit contend­ing that architects and contt·actot·s had in­stalled a defective ventifation unit.

After spending almost $2 .4 million in legal fees, the county was largely unsuc­cessful. County attorneys were upset by the apparent disregard by jurors of medi­cal testimony linking employee symptoms to the malfunctioning ventilation systemY

Even if the county decides not to ap­peal, its legal woes are not over because the civil lawsuit against it by 125 affected employees is still pending. 25 Injured par­ties have also sought relief under state Worket·s ' Compensation laws . Many of the existing SBS claims centet· at·ound exposut·e to environmental tobacco smoke. In Pennsylvania, a claimant was successful on appeal, against the Unem­ployment Compensation Board of Review, when the judge held that she had met the burden of showing a "necessitous and compelling cause" for her termination because she resigned her position due to allergic bronchitis caused from expos me to cigarette smoke in the work area. 26

Syndrome in Offu;e Buildings -A Brellth of Fresh Air, 328 NEw ENI;. J. Mm. 877 (1993).

10. ld. at1068.

11 . Holma, supra. noll' 6, at 1069.

12. Gold , supm note 3, at 223.

13. Menzies, cl ol., supra note 1, at 821.

14. lei.

15. I d. at 824.

16. I d. at 821.

17. Menzies, et al., supra note l, at 821.

Ill. W FPrl. Reg. 15,9611 (1994) (to be eodified at 29 C.F.R. 1910, 1915. 1926 and 1928) (pro­posed April 5, 1994).

19. Mitchf'll Pa~:l'lle , Ga$ping For Breath: All Sides Venting Feelings on Proposed Indoor Air Quality Rules , CIIICA<;o TRIIIUNt:, January 8, 1995. at 7T.

20 . .lolm F. Cahill, An Introduction to the In­door Pollmion Problem, ·10 No.5 PRM.:. LAW. 27

Because there was an isolated factor easily linked to the claimant's condition , it is not clear that a party would be as suc­cessful in a SBS situation where the cause fot· the employee's symptoms t·emain un­certain.

This was apparent in anothet· case where , a claimant's petition was t·eversed on appeal by the Workmen 's Compensa­tion Appeal Board of Pennsylvania after the Board concluded that she "did not meet her burden of proving, via unequivo­cal medical evidence, that she incurred the malady titled 'sick building syndrome' through her work duties and work envi­ronment with defendant. •m

Twenty years after the first appeat·ance of work-t·elated health problems , we appeat· to be no closet· to finding a cause ot· cure for "sick" buildings.

Susan M. Fix is a fourth-year evening student at Duquesne University School of Law and serves as a Staff Editor of Juris.

(1994).

21. Steven A. Loewy, George W. Kelly & Mar·tha D. Nathanson, Indoor Pollution in Commercial Buildings: Legal Requirements and Emel"ging Trends, 3 U.BAI:r.J.Ei\>'TL.L. 29 (199:l) (referring to Call v . Prudential, No. SWC 909B (Cai.App.Dep 't.Super.Ct. fLied 1985) (sellled on October 15, 1990 for an undisclosed amount)).

22 . Murk Hansen, Toxic To,.thorLSe? Ailing Em­ployees Sue Builders of New Courtho!LSe in Su.b­urbCin Chicago, 78 A.B.A.J. 26 (1992).

23. ld.

24. Jan FeJTis & William Grady, County i$ Left Clmchurg Air Afte,. Lawsuit Fight Over 'Sick' ConrtlwiLSe Yields Leglll Fees, Little Eue, Clll­uco TRIDlNE. January 5, 1995, at l.

25. ld.

26. LCipham v. CommonweCIIJh of Pennsylva­nia. UnemploymenJ. Compensation Boal·dofRe­view, 519 A.2d 1101 , 103 Pa .Commw. 144 (1987).

27 . See Rosenthal v. Carnegie MelWn Uni.ver­sity, 1994 WL675025 (Pa.Work.Comp.App.Bd.)

Online Discipline Past Disciplinary Records in a Future Dimension

Focusing on the F

By Alison Fenton

T he American Bar Association (ABA) has recently announced plans to make its Discipline Data

Bank available on-line to disciplinary au­thorities throughout the country. The on­line service consists of the names , ad­dresses, and certain disciplinary viola­tions of 25,000 lawyers. 1

According to Sue Campbell from the ABA Center for Professional Responsibil­ity, the database will be initially available through a test pilot project. The test pilot project is to be conducted in six states . After conducting the pilot project, the ABA will make any necessary changes to the database. It will then be available na­tionwide.

A lthough the data bank has been available by phone or mail for ap­proximately 25 years, on-line ac­

cessibility will speed up disciplinary au­thorities' investigations into attorney con­duct. Once it is on-line, the data bank will be available 24 hours a day, 7 days a week , and will provide information almost in­stantaneously. 2

The decision to go on-line s temmed from the fact that lawyers have become increasingly mobile and licensed to prac­tice law in more than one state . Because each state regulates its own lawyers, and not all states have reciprocal discipline policies , an attorney who is disciplined in one state, even disbarred, may still be able to practice elsewher e .

The ABA hopes to ensure that disci­plinary authorities have convenient access to an attorney's disciplinary background , even if the past discipline occurred in an-

other state. 3 However, the information contained in the data bank is not a com­plete history of a particular attorney 's prior discipline.

In Pennsylvania , attorneys who are found to have violated the Rules of Pro­fessional Conduct can receive six differ­ent forms of discipline , depending on the severity of the attorney's misconduct. The six types are l ) disbarment; 2) suspension; 3) public censure; 4) probation; 5) public censure by the Disciplinary Board; and 6) informal admonition by Disciplinary Counsel.4

Disbarment, suspension and pub­lic censure are public forms of discipline and are contained in

the ABA's Data Bank. The remainder are private forms of discipline and,along with complaints that may have b een fil ed against an attorney, are not contained in the data bank. 5 However, in Pennsylva­nia , although it is not public information, the Disciplinary Board keeps a r ecord of all prior discipline that an attorney re­ceives and keeps on file complaints that have been dismissed for one year.

Access to the Discipline Data Bank will be offered by Wes tlaw, even to users who are not Westlaw customers. The service will be free of charge to those disciplin­ary authorities who agree to turn over to Westlaw a complete list of attorneys reg­istered in their state . Failm·e to turn over the lis t will result in a charge of $90 per hour.6

Although accessibility will be ft·ee and convenient, the information contained in the data bank will not be offer ed to the general public. 7 It will only be available

TechJzologJ'

to disciplinary authorities, who will ide­ally use the database as an investigative tool. Legal reform advocates criticize the limited accessibility, because they argue it keeps information from the consum­ers-potential clients-who need the in­formation to make informed decisions on whether to retain a particular attorney. 8

Jeanne Gray, dit·ector of the ABA Center for Professional Responsibility, main­tains , however, that opening the data bank to the general public subjects the ABA to possible liability for defamation or invasion of privacy.9 Ms. Gray states that the public may use "slightly inaccu­rate" information because the data bank includes names of disciplined attorneys similar to names of lawyers who have not been disciplined and contains records of past discipline that may no longer be ef­fective .10

T he decision not to provide on-line access to the public, however , does not mean that the public can­

not get the information. The ABA will con­tinue to answer inquiries from the pub­lic, via phone or mail, about an attorney's record. In addition, in Pennsylvania, Dis­c iplinary Board s taff will check an attorney's record for any public discipline and will disclose such information to those who r equest it.

References

1. Amy Stevens, Li&t of Bad Lawyers Ia Go On Line, W .\l.L S TREET JotJIIM I., Aug. 26, 1994, at Bl .

2. l d .

3. ld.

4. Pa. RulE' of Disciplinary Enforct'ment 204.

5. StE'veos, supra note I. at Bl.

6. ld. at B5.

7. ld.

8. ld.

9. ld.

10. ld .

Alison Fenton is a third year day student at Duquesne University School of Law and serves as Articles Editor of Juris.

Spring l 995 )U I'. IS 19

AJ1icles

Inventing A variety of state and federal laws aim to protect the casual inventor from unscrupulous marketers.

By Warren Haines

S o you want to be an inventor? Let's say you've got this great idea - call it a flumbledurnble - and

you know that if you could get it out on the market , it would make you enough money that you could retire.

Not knowing how to get your idea into a production line and out to the waiting consumers, you consult a service that de­velops and markets inventions.

The skilled marketer sweet-talks and ca joles and co nvinces you that this f1urnbledumble is great. It'll make a mil­lion dollars. We'll share profits, and we will all be rich.

In actuality, the invention development company knows there's not a rat's chance trus new invention will make money. Nev­ertheless, the invention development com­pany provides you with a package of data showing the r esults of a market evalua­tion and a projection of expected earn­ings.

Just after you've received all of trus good news, out comes a contract and a pen to sign on the dotted line. At the same time , the develope r casually mentions there will be some money needed up front, some additional future costs for advertis­ing and expenses for further development. You don ' t think it 's any big deal; all of that will come back tenfold when the prof­its come rolling in .

This scenario happens all the time. Somf!times, the inventor has not even read the contract or has read it and is deceived about the earning potential of the inven­tion .

To stem abuses in the invention indus­try, at least 13 states have enacted stat­utes to peotect the consumer from unscru­pulous methods that invention marketing companies use to separate the inventor from rus or he r cash. 1

20 J u " IS Spring 1995

S orne invention marke ters have ended up in jail. 2 Others h ave entered into civil settlements . For

example , the Federal Trade Commission recently arranged a $573,000 settlement with three invention development compa­nies with roots in Pittsburgh: Technology Licensing Consultants Inc., Idea Manage­ment and Patent Assistance Corp. , and American Idea Management Corp. 3 And some are currently under investigation for fraud and misrepresentation.4

Florida had an invention development services act that was declared unconsti­tutionally va gu e and a mbiguou s .5

Minnesota 's statute to regulate invention d evelopment services is similar to the Florida s ta tute, but it was held to be con­stitutional.6 In 1991, legislation regard­ing invention development services was introduced in P ennsylvania , but it neve1· b ecame law. 7

So what is the aim of these statutes, and does the consumer r eally need this kind of protection?

Mostly, these statutes are disclosure statutes . They provide that certain infor­mation must be disclosed to the prospec­tive (:us tomer. The statutes r equire dis­closure of how many customers receive

more money from the developer as a re­sult of the invention marketing than the customer gave to the developer, what the prospective fees are expected to be, the fact that the prospective customer likely will lose patentability in other countries once the invention is disclosed to the de­veloper.

Additionally, most of these statutes provide for civil penalties in the event of failure to make the required disclosures and provide for a private cause of action against the developer. This cause of ac­tion is important because some consumer protection statutes allow only the attor­ney general to bring an action, not pri­vate citizens.

Why should the developer be required to disclose the number of customers who have received more money from the de­veloper than they gave? This information bluntly illustrates to the customer that the W<elihood of his or her invention being the next success story is extremely slim. In actuality, only one out of every 300 or 400 inventions patented ever becomes a prod­uct.8

One invention marketing firm claimed that, during the period 1986 to 1990, four (only four) out of2,132 clients made more

References

I. CAL. Bus. & PROF. CoDE 22370-22395 (West 1987); ILL. A:~l'< . STAT. ch. 815, para. 620/101-620/704 (Smith-Hurd 1993); low.1 Coo~: A.~N.

523G.1- 523G.ll (WeMt Supp. 199tl); KAN. STAT. ANN. 50-666-50-668 (Snpp. 1993); MINN. ST~T. A.~N. 325A.01 - 325A.10 (West 1981 & Supp. 1995); NEB. Rr,;v . STAT. 87-601- 87-610 (Supp. 1992 & 1993); N.C. GEN. STA'r. 66-209 - 66-216 (1994); N.D. CENT. c~nn: 9-14-01 - 9-14-09 (1987 & Supp. 1993); Omo R~:v. CooE ANN. 1345.61-1345.68 (Anderson 1993); OKL1. SnT. AN~. tit. 15, 680-689 (West 1993); T~:"i''- CoDE ANN. 47-25-1201 - 47-25-1222 (1988 & Supp. 1994); n :x. REI'. CJv. STilT. A.''N. m·t. 9020 (West Supp. 1995); VA. CoDE AN"<. 59.1-208 - 59.1-215 (Michie 1992).

2. People v. Lewis , 710 P.2d 1110 (Colo. Ct. App. 1985).

3. Steve Massey, FTC Sues lnvelltion Market­ers, PrrT~li[I JIGII PosT-GAZETTE, April 21, 1993, ut B12.

money than what they paid to the mar­keter in fees .9 In fact, "some invention development organizations have admitted they had few customers that earned more from an invention than was paid to the organization, sometimes as few as one out of 10,000. " 10

This disclosure requirement is not in­tended to dissuade innovation , just to ensure that those who are attempting to profit from others' ideas are honest about how successful they have been in bring­ing products to market.

A patent is a constitutional protection granted to an inventor for a certain time period against having his or her invention used by others without permission. 11

Without a patent on an invention, any­body may freely use that invention and not be required to pay for that privilege.

Thus, obtaining a patent for an inven­tion is a desirable protection for an in­ventor. United States patent law has a provision that bars patentability if "the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States. " 12

4. I d. See also Federal Trade Comm 'n v. lnven­ti{>n Submission Corp. , 965 F.2d 1086 (D.C. Cir. 1992), ce1·1. d.mied, 113 S.Ct. 1255 (1993).

5. Shevin v. International bt·ventors, Inc., 353 So.2d 89 (Fla. 1977).

6 . Invention Marketing Incorporated v . Spannaus, 279 N.W.2d 74 (Minn. 1979).

7. 1991 P .1. SE."ATE Btl.t. No. 1005, Pa. 175th Gen. Assembly (1991).

8. Dalla• Gatewood, It's an UphiU Peddle for Inventor Selling Her Idea to Companies, NEWSI>AY, June 20, 1993, at 56.

9. Paul Hemp, Dashed Dreams; Amateur In­·••entors Lose Hope and Money·with Stoneham Marketing Finn, THE BosTON GLOBE, Septemher 17,1991, at39.

10. Hearings hefore the Senate Subcommittee on Regulation and Governmental Information, Commi!let' on Governmental Affairs, on the Mar­keting Practices of ln"ention Promotion Com­panies, FDCH Congressional Testimony, Sep-

I nuen tion

Almost all invention development ser­vice companies are not able to file patents for inventors; to do that , the company must be registet·ed to practice in the Patent and Trademark Office to file for a patent for others. 13 If the developet· does not disclose this information to the cus­tomer, the customer may nevet· know that he or she is foregoing the protection avail­able from obtaining a patent.

Sometimes, a developer will enter into sequential contt·acts with a customer. The first contract will enable the developer to take only limited action. Then the devel­oper will require a subsequent contract to "enable" it to take further actions .

Of course, each contract has an asso­ciated fee. And once the customer has gone "so far," it only makes sense for the customer to continue the series of con­tracts to see the project through.

Requiring the initial disclosure that many contracts may be required and the approximate total fees involved will give the inventor an idea of what he or she will encountet·. This also seeks to remove one

See INVENTOR on page 30

temher 2, 1994 (testimony of Michad K. Kirk , Deputy Assistant Secretary of Coounercc and Deputy Commissioner of Patents and Trade­marks).

11. U.S. CoNST. art. I, 8. cl. 8 .

12. 35 u.s.c. 102(b) (1988).

13. 37 C.F.R 10.10 (1994).

14. Matt Straw. Inventor Beware, How to Make a Million on Fishing, Tm: IN-FJSJJF.JntAN, April 1993. at 47.

15. lei.

16. Hearings before the Senate Subcomm. on Regulation and Govt>rnmental Information, Comm. on Governmental Affairs, on the Mar­keting Practices of Invention Promotion Cos. , FDCH CongresRionol Testimony, Sept. 2. 1994.

17. lei.

18. W. John Moo•·e, Reinventing Patents , TilE N.u'L J ., March 20, 1993, al 694.

Spring 1995 JU fl... IS 21

Articles

Workers with religious objections to employer orders may qualify as conscientious objectors

By Bruce Bagin

T here is little disagreement with a policy that calls for discharging any employee who refuses to carry

out the legitimate directives of the em­ployer. This is a normal penalty for in­subordination. And, an employee who refuses to carry out a legitimate directive is labeled insubordinate.

However, it is not insubordination when an employee refuses to carry out a directive of his or her employer when the directive violates the employee's religious beliefs or practices because it requires him or her to perform some act or omission that is illegal, unethical or dishonest. In­stead, the act of the employee is conscien­tious objection and it is protected by Title VII of the Civil Rights Act of 1964, as amended ("Title VII"). 1

Each day employees are asked to en­gage in certain activities that violate their consciences because the practices are un­ethical, dishonest, or illegal. Because of these conflicts of conscience, the employee frequently voices some objection or per­haps just flatly refuses to engage in the practice.

As a result of his or her conscientious objection, the employee frequently be­comes the subject of ridicule, humiliation and other verbal harassment, or he or she is then subject to discipline and often is discharged or forced to resign.

Much like Saint Thomas More, the em­ployee is placed in the untenable position of choosing between doing that which he or she believes is morally wrong or losing his or her job should he or she refuse. More lost his job as Lord Chancellor of England (and his head) because he could not take an oath that violated his religious beliefs.

Today losing a job because of religious principles is much like a beheading be­cause of the difficulty in securing another job when the employee is discharged for alleged insubordination.

22 J U J(J 5 Spring 1995

I t should not be forgotten that an em­ployee is only insubordinate if the di­rective he or she has refused to com­

ply with is legitimate. Recently, the United States Supreme

Court addressed the application of a com­pany policy, prohibiting the copying of confidential documents bearing upon the employer's financial condition and shar­ing their contents with a third party, when the offending behavior of the employee was not discovered until after the em­ployee was discharged because of her age. 2

In McKennon v. Nashville Banner Publishing, the employer discovered, as a result of her deposition, that Ms. McKennon had copied several confiden­tial documents bearing upon the em­ployer's financial condition and had shown them to her husband.

Ms. McKennon testified that she took the documents both for protection and in­surance when she became concerned about losing her job because of her age. The financial records could be used to dispel any claim that she was discharged for economic reasons.

The Court held that Ms. McKennon's wrongdoing in disobeying her employer's policy against copying documents was not a bar to her age discrimination claim.

In Pennsylvania, an employee who is discharged when he or she refuses to per­form an illegal act may be able to prevail upon a theory of wrongful discharge, if he or she can show that his or her dis­charge violates public policy. The few cases that have been successful have in­volved employees who have been dis­charged for being absent because they went to vote or who applied for worker's compensation.

The tort standard involved in proving these cases is often difficult to meet since the courts are not likely to place any re­strictions on the "employment at will" doctrine in the Commonwealth.

P ublic employees have both state and federal protection under the appropriate "whistle blower"

statutes, for disclosing the unlawful con­duct of an employer to a third party to correct waste, fraud or corruption.

Employees who are asked to do some­thing that is unethical, dishonest, or ille­gal are protected under Title VII, which prohibits an employer from discriminat­ing against any employee because of reli­gious practice or belief.

Section 70l(j) of Title VIP requires an employer to reasonably accommodate the

Each day employees

are asked to engage

in certain activities

that violate their

consciences because

the practices are

unethical, dishonest,

or illegal.

1

religious practices and beliefs of an em­ployee or applicant unless the employer demonstrates that the accommodation would result in undue hardship to the con­duct of its business.

T his provision of the statute takes its origin from the 1966 Guidelines of the United States Equal Em­

ployment Opportunity Commission (EEOC or Commission) on Religious Dis­crimination4 which were revised in 1967, to state that an employer had an obliga­tion to reasonably accommodate the reli­gious practices and beliefs of its employ­ees and its prospective employees unless the employer could prove that to do so would create an "undue hardship."5 The 1966 Guideline had permitted a lesser proof of a "serious inconvenience to the business."

In 1972, Congress adopted the Commission's 1·egula tion and enacted the current requirements of Title VII. Sub­sequently the Supreme Court, in Trans World Airlines v. Hardison, ("TWA "/ held that TWA was not required to uni­laterally violate a seniority provision of a collective bargaining agreement , or to pay another employee to perform Hardison's work at premium pay, or to create a seri­ous shortage of employees in another de­partment in order to accommodate Hardison 's religious practices and belief, because to do so would constitute an un­due business hardship.

In its Guidelines on Discrimination be­cause of Religion, the Commission adopted its definition of the religious na­ture of a practice or belief from a Supreme Court case in which an individual was conscientiously opposed to war and to military service.7

Thus the Commission defines religious practices to include, "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of tra­ditional religious views." Additionally, "the fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a reli­gious belief of the employee or prospec­tive employee.8

There is no known religious belief or practice that approves dishonesty, unfair­ness, or other unethical or immoral con­duct. Thus, a request from an employer or its agents , officers and managers that an employee perform some act or omis­sion that is dishonest , unethical, or ille­gal, will, if performed, violate that person's religious practices and beliefs in violation of Title VII.

B eing discharged for refusing to ac quiesce in requests for sexual fa­vors is not only a violation of the

provisions of Title VII which prohibit sex discrimination, it is often also a violation of the provisions of Title VII that prohibit discrimination because of religion as well.

In addition, employees are often asked by their employers to make false reports to government agencies, customers or stockholders. When an employee refuses to commit the dishonest act, the employer may discharge the employee in retaliation.

Where theemployee is motivated by concerns of right and wrong and refuses to perform the offending act, his or her refusal is an act of conscientious objec­tion and is protected by Title VII.

Suppose a typist is given a dictation tape that contains a series of memoranda that were dictated yesterday, but are to be back-dated to give the appearance that an employee had been counseled regard­ing certain performance problems in or­der to justify its defense to the employee's age discrimination claim.

TheW orl<place

The typist refuses to tt·anscribe the tape because he or she believes that it is full of falsehoods and will be used to de­ceive the agency that will investigate the claim of age discrimination. The employer threatens to dischat·ge the employee be­cause she is insubordinate. Here the typist's objection is based upon her reli­gious belief that it is wrong to engage in dishonest and deceptive acts.

F urther, suppose a dispatcher is told to schedule drivers past their allotted times under applicable

Department of Transportation's regula­tions and she tells her employer that she cannot give that instruction because it is unlawful, but is told to do it or lose her job.

If she violates her conscience and fol­lows the instruction, she has a claim un­der Title VII for religious discrimination, because she was forced to violate her re­ligious principles in order to keep het· job.

If she refuses to comply with the di­rection of her boss , she also has a claim

See OBJECTORS on page 31

References

l . The Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e (1988).

2. McKennon "· NaslwiUe Banner Pubwhing Co. 115 S.Ct 879.883 (1995).

3. The Civil Rights Act of l%4, as amended, 42 ll.S.C. 2000e-U) (1988).

4. 29 C.F.R. l605(a)(2), 31 F.R. 3870 (1966).

5. 29 C.F.R. l605. l(b)(c), 32 F.R. 10298.

6. 432 u.s. 63 (1977).

7. United States v. Seeger, 380U.S.l63(1965); Welsh v. United Stales , 398 U.S. 333 (1970).

8. 29 C.F.R. 1605.1 , 45 F.R. 72612, Octoher31, 1980.

9. Ryan t'. U.S. Dept. of Justice, 950 F.2d 458 (7th Cir. 1989).

Spring 1995 J VI\.. IS 23

Articles

Book 'etn! Law Librarians to focus on flow and sources of technology at conference in Pittsburgh this summer

By Tsegaye Beru

"Connected to justice" will be the theme for the 1995 annual meeting of the American Association of Law Librarians , which will be held July 15-18, 1995, in Pittsburgh .

According Carol Billing, new AALL president, the theme is meant to convey that technology has revolutionized the way legal information is disseminated to and used by everyone electronically to im­prove access to justice .

Law librarians , Ly forming alliances and initiating cooperative efforts with other members of the legal and informa­tion communities, are fostering fair and beneficial use of legal information in the service of justice for all.

A feature of the 88th Annual AALL Convention is the first National Conference on Legal Information

Issues. Along with 2,500 participants in the AALL convention, the conference is expected to dt·aw more than 150 delegates including judges, law faculty, practicing attorneys, governmental officials, pub­lishers and information scientists. This conference will fo cus on the legal infor­mation revolution and its implication to the end-users .

The entire year leading to the Pitts­burgh annual meeting will emphasize both AALL's leadership role in the legal infor­mation revolution and the AALL mem­bers ' desire to work cooperatively with others who have similar needs and inter­ests. AALL hopes to strengthen its ties with governmental institutions in order

24 ) u 1<..15 Spring 1995

to influence public policy, both at the fed­eral and state levels.

AALL thrives to explore new options to provide continuing education for its members and others who may benefit from the AALL services. Various commit­tees are working cooperatively to make this convention a success.

A World of Learning

The local arrangement committee is headed by Professor Frank Liu of Duquesne University School of Law Li­br-ary and Cindy Cicco of the University of Pittsburgh School of Law Library.

T he annual meeting is the premiere educational event for law librar­ians. More than 150 local and

outside companies that are leaders in le­gal information technology will exhibit at the convention. Because the amount of legal information developed every year is so overwhelming, it becomes difficult to keep abreast of all developments. That is where the convention plays a vital role in educating law librarians and other legal

professionals on ~urrent developments and ways to handle information.

Among the various programs offered at the convention, librarians choose those of interest to them. Through the pro­grams, the participants receive updates on the state of the particular technology involved. The librarians, in turn, pass that information on to the legal commu­nity. Likewise, those not involved in legal information services can get first-hand in­formation about these technologies.

T h e AALL was founded in 1906 at the annual meeting of the Ameri­can Library Association. The 24

librarians who reponded to this call set as their goals leadership in the field of le­gal information and enhancement of the value of law libraries to the legal commu­nity and the public.

The AALL is headquartered in Chicago and has 30 city and regional chapters. It is a nonprofit organization dedicated to serving the legal information needs of the judiciary, law students and faculty, the bar and the public through work in court­houses, law schools, law firms, govet·n­mental agencies and corporations.

AALL's membership has grown to 5,000 over the past 87 years. The AALL's mem­bers manage academic law libraries , law firm libraries, bar association libraries, county law libraries , cout·t libraries , leg­islative libraries and libraries in business and industry.

Tsegaye Beru is a third-year evening student at Duquesne University School of Law and serves as Articles Editor of Juris.

0 Jl CanzpltS

Mistick has brought his love of the locale to Duquesne By Jennifer Swistak

Duquesne University School of Law recently welcomed Professot· Joseph Sabino Mistick into the newly created po­sition of Directot· of Clinical Legal Edu­cation.

Mistick is excited about the newly ct·e­ated in-house clinic, the Economic and Community Development Clinic, which will begin in the Spring of 1995. Mistick sees the clinic as an opportunity for stu­dents to work with regional non-profit corporations on ways to more effectively spend money on community development.

The focus of the clinic will be on pro­viding a broad range of expet·ience in helping organizations attempt to revital­ize the community, an issue M.istick be­lieves is extremely critical to the future of Pittsburgh and the region.

He sees the clinic as one way to pro­vide a vital service to the community by teaching people how to help whole neigh­bot·hoods. He also believes clinical edu­cation will give students the necessary ex­perience to succeed in the vigorous job market and allow students to give some­thing back to the community.

In addition to his position as Director of Clinical Leg a I Education , Mis tic k teaches courses in Land Use Planning and Remedies and Damages.

He previously has taught at the Duquesne University School of Law as an adjunct professor and a visiting profes­sor. Additionally, he continues to practice law as a sole practitioner, focusing on the area of development.

Born and bred from a Pittsburgh mill family, Mistick was always interested in local government. During high school, he had the opportunity to work as a summet· page to the Democratic Caucus of the Pennsylvania House of Representatives. From that point, Mistick was enthralled with local government.

Mter receiving a Bachelor of Arts in English Writing from the University of Pittsburgh, Mistick pursued his interest in local government. He held various po­sitions with Allegheny County, including

serving as Director of the Allegheny County Commissioner Service Center.

He also worked as the Municipal Sec­retary for the Borough of Braddock and as an aide to the ranking Democrat on the Pennsylvania Senate Urban Mfairs and Housing Committee.

Inspired to attend law school by a man in his neighborhood who successfully at­tended law school at night while maintain­ing a full-time job, Mistick enrolled at Duquesne University School of Law.

As a young lawyer, Mistick opened a stot·e-front practice with an emphasis in municipal and land use law. While main­taining his private practice, Mistick 's love and enthusiasm for development law drew him to this area to the exclusion of all other at·eas of law.

When he began practicing, Pittsburgh was experiencing its Renaissance with the advent of new skyscrapers. As Chairman of the Pittsburgh Zoning Board of Adjust­ment and as a member and Vice Chair­man of the Pittsburgh Planning Commis­sion, Mistick found it exciting to have in­put in the construction of several promi­nent Pittsburgh skyscrapers, such as Ox­ford Center and PPG Place.

Adtlitionally, Mistick also was a mem­ber of the Airpot·t Advisory Committee and reeeivcd a Citation of Merit from the

Allegheny County Commissioners for his work relating to the development of the new Pittsburgh International Airport.

Mistick also served as a member of the Public Auditorium Authority of AUegheny County, the City of Pittsburgh Apportion­ment Commission and the Southwestern Pennsylvania Regional Planning Commis­sion .

Most recently, Mistick was Executive Secretary to former Mayor Sophie Masloff. In that capacity, Mistick was Mayor Masloff's top policy and adminis­trative aide .

Mistick currently resides in Point Breeze with his wife, Barbara , and his children. He has three daughters, 14-year-old Sloane, seven-year-old Victoria , and five-year-old Adriana Sophia, who can be seen in the numet·ous photographs which adorn the walls of his office.

In his free time, Mistick enjoys music , particularly opera, and cooking, specifi­cally Italian food. He is also intet·ested in travel and finds the romantic and cultural Venice, Italy to be one of his favorite eit­ies.

Mter always wanting to run for state­wide office , Mistick ran for the Common­wealth Court of Pennsylvania in 1993. He said he enjoyed the experience, made many friends and tt·aveled more than 30,000 miles between June and Novem­ber. He stated that it could not have been a better experience-unless he had won.

When asked about his future plans, Mistick s tated that h e enjoyed private practice, but he would not return to it full­time. However, he would like to see the School of Law's new in-house clinic grow substantially in size and impact. He strongly encourages public service and the feeling of satisfaction that comes from helping people , and he would like to bring the feeling of sa tisfaction from develop­ment to the students through the in-house clinic.

Jennifer Swistak is a third-year day student at Duquesne University School of Law and serves as Campus Editor of Juris.

Spring1995 JU ~IS 25

lVIe nlon;

Duquesne SBA working to create mentor programs By Stephanie Smith

T he Student Bar Association (SBA) is currently working with Oliver High School in establishing a men­

tor program. Several high school students have volunteered to participate in Duquesne Law School's magnet public law program which allows the high school stu­dents to focus their academic career to­ward the study of law.

The goal of the mentor program is to help forge a relationship between the high school and law school students. These high school students have made a tremendous commitment to pat·ticipate in the magnet public law program as the program re­quires dedication and discipline to remain in good standing.

Gary Schet·mer, a Duquesne Law School graduate, runs the magnet pro­gram at Oliver High School. As SBA Sec­retary, I am cmTently spearheading the mentor program with Schermer.

A major contributer has been Pat Breman, Alumni Relations Director. Ms. Breman has been very helpful in provid­ing the resources of her office in getting the program up and running.

I nan effort to expose the Oliver High School students to alJ the opportuni­ties that the law school has to offer,

the SBA is seeking not only the pa rticipa­tion of individual law students, but also the other student activity groups.

In Novembet·, Dawn Manon of the Women's Law Association and I visited the students at Olivet· High School to discover initialJy what the students whet·e hoping to receive from the establishment of a partnership with Duquesne Law School.

Many students responded that they were looking for guidance in choosing a colJege within the next year. The students were also seeking suggestions on how to choose an undergraduate path which would improve their chance to attend law school.

The most important element each stu-

26 JUJ'.J5 Spring 1995

dent hoped to acquire was an honest and direct response to their questions. The mentor program is currently recruiting law students to volunteer their time to as­sist the high school students with trial tac­tics and suppression hearings in a crimi­nal prosecution.

Oliver High School's mock trial team is preparing for a national high school mock trial competition, which will be held in Pittsburgh. The mocl( trials will take place between 2:15 and 4 p.m. on week­days, as well as some Saturdays.

Any law student willing to volunteer his or her time to as an adviser for the mock trial or as a big brother/sister can contact me in the SBA office.

A s most students are aware , the 1993-1994 SBA attempted to ini­tiate a mentor program hetween

alumni and the law students. The SBA of 1994-1995 has done its best to take the program it inherited and make it as ac­cessible as possible to the student body.

The new system has been given a new name (the Alumni Assistance Program) and a new structure. Under the new struc­ture, the Alumni Assistance Program will pt·ovide students with the abililty to con­tact alumni as far away as Texas or as close as downtown Pittsburgh with various ca­reer or academic questions.

The ot·iginal pt·ogram involved match­ing students to alumni, based upon the student's area of interest and the alumni's area of practice. One of the intial prob­lems that the program faced from its in­ception was the inability to have the alumni information entered into the school's computer system. As a result, the SBA could not gain access to the informa­tion.

P ast SBA members volunteered a tremendous effort to initiate and execute the program. However,

before the job could be completed, the 1993-94 school year had come to a close. While the 1994-95 SBA is still facing the same access problem, the SBA has refused to relinquish its goal.

---~----------- --------

Sevet·al first-year day and evening stu­dents assisted in checking and sorting the pt·eviously compiled information. I re­cently took the information and created an Alumni Assistance Program Book for students' access.

0 ne major problem that remains, which the SBA plans to address, is the establishment of a more

meaningful student-alumni mentor t·ela­tionship. Such a relationship t·equires a compatibility between students and alumni which is difficult to build by matching inJividuals via computer.

The current Alumni Assistance Pro­gram is for the pm·pose of aiding students in obtaining informational contacts, mak­ing career choices, listening to academic advice and receiving any other helpful suppot·t.. The goal of the program is not to have the alumni pt·ovide the student with a job, but to have the alumni pro­vide direction and encouragment.

The SBA and the Alumni Relations Of­fice will be holding receptions at Duquesne University School of Law and, with hope, at local firms, in an effot·t to bring the stu­dents and the alumni together. These functions allow for possibly adding an­other level to the assistance pt·ogram.

S uch intet·action is a step beyond matching people by computer. The receptions will genet·ally involve

alumni in various pt·actice areas. Pret·egistration by students will be re­

qui•·ed in order to attend. In an effort to help the students inte1·ested in working with the Alumni Assistance Program, the SBA will be holding an informational meeting within the next several weeks to help familiarize the students with the pro­gram.

Stephanie Smith is a second-year day student at Duquesne University School of Law and is Secretary of the Student Bar Association.

Class Notes

1987

RITA YAKE PRESSER and DAVID PRESSER recently adopted a Russian ot·phan. Rita and David tt·aveled to St. P etersburg in April of 1994 and returned with a wonderful and happy 3-year-old daughtet· whom they have named Sabrina Langston Presser.

Legal Briefs Juris is now on the Internet

Hitc hing a rid e on the information superhighway, ]uris now has an Interne t address to which readers-alumni, faculty and students-can communica te with editors of the magazine.

Any r eader s with questions , comments, concerns or news for the magazine's new Class Notes section are encouraged to use their on-line set·vices or Internet connection to send e-mail to .Juris.

To communicate with the editot·s of ]uris, send e-mail to J ul"is@duq3 .cc.duq.edu.

Alunnzi Nell'S

Introducing Class Notes! Juris is now publishing information about alums. All you need to do is give us the news and other information you want your former class mate to know. Just fill out this form and tell us about marriag , births, other academic degrees, career advances and pub­lications! Or you can e-mail this informa­tion to Juris at the following address : Juris@duq3.cc.duq .edu.

Name:

Year of graduation:

I'd like the alumni of Duquesne University School of Law to know:

Send this form to: JURIS School of Law Duque n ni er ity 900 Lo u t t. Pitt burgh PA 15282 On th lnt rnet: Juri @duq3.c .duq. du

Spring 1995 J u fl... IS 27

The Lttll'

Discrimination Does the Americans with Disabilities Act provide protection for persons who are obese? By Dawn Marron

C !aims of employment discrimi­nation against employers who have allegedly discriminated

against obese employees are the latest twist in the labyrinth of litigation under the Americans with Disabilities Act of 1990 ("ADA").'

The ADA prohibits, in part, discrimination in employment situations against quaWied individuals with physical or mental disabilities. 2

Since the ADA was enacted, courts have taken steps to define the far­reaching language to create acceptable boundaries for both employers and employees.

The terms of the ADA are substantially similar to those in the Rehabilitation Act of 1973,3 but the broader scope of the ADA does create new legal challenges for the courts.

"Appearance" claims against employers for discl'imination in hiring, benefits and promotions based on weight likely will increase during the next few years. 4 Some explanations for this prediction are found in the current court interpretations of the ADA, the guidance of the Equal Employment Opportunity Commission ("EEOC" ) and the perceptions of obesity in the legal and medical communities .

In medica l terms, " morbid obesity" is defined as two times or 100 pounds over optimal body weight. 5 Studies show that in the United States , 30 percent to 40 percent of adult women and 20 percent to 30 percent of adult men are obese, while one percent of those persons are termed mo rbidly obese. 6

While one percent is a seemingly small number, in the United States population that translates to 1.5 million people who are potential plaintiffs if obesity is termed

28 JU~S Spring 1995

a disability under the ADA. The EF.O\. , the federal enforcement

agency for the ADA and other discrimination statutes, states that " obesity may be a disability .. . if it is of such duration that it substantially limits a major life activity or is t·egarded as so doing. " 7

Major life activities include walking, breathing, seeing, hearing and working.8

Discrimination h as been prohibited even if an impairment is brought on by voluntary activity such as emphys~ma r esulting from smoking and heart disease resulting from diet.

The classification of obesity as a disability is still highly questionable in the courts, but the EEOC has taken the position that obesity is a qualified disability in certain circumstances.9

T he EEOC filed an amicus b rief in Cook v . Rhode Island Dept. of Mental Health , Retardation,

and Hospitals. 10 Bonnie Cook wor ked as

R~feTences

l. Americans with Disabilities Act, 42 U.S.C.A. 12101-12213 (West. Supp. 1993).

2. ld.

3. The Rehabilita tion Act ofl973, 29 U.S.C.A. 794 (West Supp. 1991).

4. 503 Practising Law Institute Litigation and Administt·ative Practice Cou1·se Handbook Series 591 .June, 1994.

5. Merrk Manual950 (15th ed. 1987).

6. 32 Million Ove rweight , Joint Committee Reports, 102 Pub. Health Rep. 111 (1987).

7. Amicus Brief of the Eqnal Employme nt Opportunity Commission at 11, Cook v. Rhod.e Island Dept. of Meatal Health, Reta.rdation, 01ul Hospitals, 10 F.3d 17 (lst Cir. 1993).

an institutional attendant for Mental Health , Reta rdation , and Hospitals for several years .

S he left voluntarily in 1986, reapplied for the same position in 1988 but was denied the job based

on a pre-hire physical. She was five feet, four inches tall and weighed 320 pounds at the time.

The employer perceived Cook as obese and thus unable to do the job. She sued under both the Rehabilitation Act and the ADA. She won her claim by arguing a perceived disability and not actual disability, thus leaving the courts open for other obesity claims.

The Cook court did not rule whether obesity is a disability. At this time, no legal definition of obesity has been developed for a court to follow, but the EEOC advocates a case-by-case analysis.

See OBESITY on page 31

8. Americans with Disabilities Act, srtpra note l.

9. See Cook, supra note 7.

10. ld.

11. See Greenwood & Pittman-Walle1·, Weight Control: A Complex, Var·ious w•d Controversial Problerr•, in OoF.SlTY .-I ND WE!GIIT CoNTilOl. at 10.

12 . Bre nda C. Colemall, Citing Long-Term Failure of Diets, St ucly Urges New Tack on Ol!P.reatirrg, PlllL,IDELPHI;\ INQLIR~:R , Oct. 30, 1991 , at SA.

13. See 45 C.F.R. 84.3(j)(2)(iv) (1992).

14. Cook, 10 F. 3d at 22.

BLSA C'oT?/erence

BLSA hosts panel discussion on racistn in the legal profession By Melloney Douce

As part of the activities for Black History Month, Duquesne's Black Law Students' Association

(BLSA) hosted a panel discussion on rac­ism in the legal profession. The distin­guished panelists included the Honorable Judge Justin Johnson of the Pennsylva­nia Superior Court; the Honorable Judge Cynthia Baldwin of the Court of Common Pleas civil and family division; Reginald Bridges , an associate at Reed Smith Shaw and McClay; civil rights attorney Byrd Brown; assistant district attorney Kim Clark; Wendall Freeland, a sole practioner; U.S. attorney Bernita Griggs; Duquesne professor Kellen McClendon; and Wrenna Watson of the Housing Au­thority. Professor Ken Gormley acted as the moderator for this event.

The panelists answered questions a­bout racism in the legal profession and gave advice on how to pt·epare yourseu· for the practice oflaw. It was not disputed that racism exists in the profession. Each panelis t shared stories of how they faced either racism , sexism or perhaps both during their careers. However, the advice that they gave was that instead of focus­ing on racism , fo cus on being prepared for the practice of law.

Reginald Bridges gave helpful hints on things to do during an interview. Mr. Bridges s tated that you need to let the in­terviewer know what you can bring to the job. Instead of spending 20 minutes dis­cussing general matters, use that time to impress the interviewer with your skills. Before you go into the interview, think about what you would look for in an interviewee and make sure you empha­size these qualities during your interview.

J udge Johnson and Judge Baldwin cautioned students that when they go to court they must be prepared.

The arguments you make , the brief you write , the way you conduct yourself in the

courtroom are important things that need to be addressed. The judges stated that they expect every attorney that comes before them to be professional and com­petent. Judge Johnson also stated that preparation starts in law school. Learn the substantive law, learn how to write and work on getting good grades. The skills you leam in law school will be es­sential in your legal practice.

Another area of concern was how to get clients and how to work with the cli­ents your firm or agency suvices. One way to get clients is through the commu-

The key to success for an attorney is professionalism. Professionalism includes getting work done in an efficient manner, being prepared for all aspects of your job, going to court ready to represent your clients and showing all those who come into contact with you that you are a competent attorney.

nity. Through your participation with various organizations you may find po­tential clients. Also, when dealing with the clients in your firm , Bernita Griggs stressed, you must be accessible to your clients. If you are accessible, helpful and develop a good rapport with your clients the clients will begin to like and trust you. Eventually the firm's clients will be your clients.

The key to success for an attorney is professionalism. Professionalism incl­udes getting work done in an efficient manne.r, being prepa1·ed for all aspects of your job, going to court ready to repre­sent your client, being accessible and helpful to your clients, and showing all those who come into contact with you that you are a competent attorney. When you show others that you are a professional you gain the respect of your peers and your co-workers.

Professor Gormley's last question cen­tered on what the panelists did to give something back to their community. For the panelists this question embodied many things. Giving back to the community in­cluded taking care of your family and do­ing well at work . It also meant making those who helped you achieve your goals proud of what you had accomplished by doing a good job. You could also join pro­fessional associations. Through your par­ticipation in va 1·ious associations you could help to promote the image of black attorneys. Or community involvement could encompass helping law students, giving a young lawyer a job, or providing help to different community organizations in the city. The concept of community in­volvement is multi-faceted and the diver­sity in the answers reflected the wonder­ful diversity of the panel. BLSA's panel discussion was definitely a successful and informative session.

Melloney Douce is a third-year day stu­dent at Duquesne University School of Law.

Spring l995 )UI'.IS 29

Continued ...

Does anybody really care about apathy anyway? APATHY

Continued from page 3

absorb a six-credit C-Plus hit and still be weal"ing a tassel come J nne 4. Flipping tht·ough my Code, I'm counting on the fact that the three previous owners pt·obably underlined the relevant language in 2-209.

As one of my last official duties this year, I am responsible for selecting a class gift to the Law School. What do you buy for the school that has everything'?

I've nat-rowed it down to two possibilities, easily within our limited budget: either1) a rope and three sticks or 2) a shovel. "Why?" you may ask. One would think that Law School ingress and egress has two fairly adequate possibilities--either the front steps or the concrete walkway from the Union. Despite this , the man-made luge/bobsled t·ut act·oss the grass is the most popular

express route. Contrary to rampant speculation, Hanley Hall is not sponsoring the 1995 U.S . National Bobsled Trials.

Several comments were made about how lovely the lawn in front of the Law

School looked last spring after the landscapers decided to eope off and reseed the ditch we dug as an illustration of the age-old proverb : "The closest distance between any two points is a straight line-especially if those two points are the Law School front doors and the Fot·bes Avenue Gat·age." It really did look nice for a little while-until about 24 hours after the previous three sticks and piece of rope wet·e removed.

There was even a new attraction in our feont yard. The Class of 1994 donated a beautiful Japanese Maple sapling to the school as its present. (Sparse class donations= small tree.) In a desperate attempt to misdirect, if not ebb, the flow of traffic over the Ia wn, the tree was strategically planted so that one day a

first-time offender would fracture his ot· her skull on an overhanging branch.

Unfortunately, this poor limb of a tree will not live to see the day when it is healthy enough to suppot·t the small brass placard which reads, "In Loving Memory of the Class of 1994." Have you seen "A Charlie Brown Christmas"'? The "Straight Line Theory" doesn ' t have a botanical exception .

On second thought , here's another idea for the 1995 class gift. I figured that we could get a shovel, dig up the tree and move it to highee ground before blacktopping the whole thing. We do need bettet· pat·king.

Paul T. Oven is a third-year day student at Duquesne University School of Law, President of the Strtdent Bar Association, winner of a straw poll leading up to the Iowa Caucuses, an avid bobsledder and is circling the Forbes Ave.

· Garage in search of a parking space.

States are moving to protect inventors from marketers

INVENTOR

Continued from page 21

more deceptive practice that unprincipled developet·s may employ.

To illustrate, one company t·ecently de­cided to see how far invention developers would go to make money. This company filled out applications from several inven­tion developers and claimed legitimate inventions. In fact, these inventions were fishing products that were already pat­ented.14

All of the invention mat·keters re­sponded with a positive lettet· indicating that the invention had passed their first stage of evaluation and requested a fcc of $200 to $750 foe a patent search. One of the companies was chosen for fuether in­vestigation and the requested fee was sent. After requesting the patent search and sending in the fee, the firm t·esponded that it had found no patents and the coast was clear to get a patent. The fit·m requested

30 J u ".15 Spring 1995

$2,500 to obtain a patent. The most it would cost to get this hook patented (again) was $10,000.15

It could have been just an oversight that this paeticular firm missed the patent on this pa rticula t· type of fishhook, but this example exemplifies the practice many invention developers use to prompt inventot·s to increase their cash outlays.

U.S. Sen. Joe Lieberman, D-Conn. , intends to introduce legislation to regu­late invention marketing companies. 16

This legislation would require invention pt·omotion companies to register with the U.S . Patent and Tt·ademark Office , tell prospective customers of the success and rejection rates of the invention subtnitted for development; create a citizen com­plaint log at the Patent Office and expand the power of the consumer to sue decep­tive marketing companies. 17

If an inventor t·eally wants to pursue an idea, he or she should be prepared to jump through several legal hoops to get the product to market. One of the things

the inventor should consider is whethet· to patent the invention.

There are many advantages and pro­tections available with a patent, but it is an expensive process. The average cost of a patent application is about $3,750. 18

Further, only one out of every 300 or 400 patented ideas ever becomes a product, and even fewet· produce enough money to cover costs .

Some inventors try to get fin ancing by disclosing the invention to garner back­ing. This can occur in the United States because an invention can be on sale or published for up to one year prior to the filing for a patent.

If patent protection is desired in other countries, this one year "grace period" is not available and any disclosuee will wipe out the possibility of a patent there .

Warren Haines is a fourth-year evening student at Duquesne University School of Law .

J

Objectors are protected in the workplace OBJECTORS

Continued from page 23

under Title VII for retaliation for oppos­ing a p1·actice made unlawful by Title VII. She refused to take an action that would violate her religious beliefs or practices .

Suppose a nurse refuses to participate in an abortion because of his religion, and his employer discharges him because of his refusal.

Abortions are not per se illegal, but the analysis, however, does not depend upon this fact. The statute requires the em­ployer to reasonably accommodate the I·e­ligious beliefs and practices of its employ­ees. Thus , if a job swap or a reassignment or some other accommodation is avail­able, the employer must use the accom­modation in order to prevent the consci­entious objector from losing his job.

Suppose an FBI agent refuses to inves­tigate a group which he supports. Here the agent is only being told to do his job. There is nothing inherently unlawful or unethical about conduc ting an investiga­tion nor does it offend any traditional moral belief or value .

Nevertheless, it may be a firmly held religious belief that must be reasonably accommodated by the employer unless doing so would create an undue hard­ship.9

Each of these cases turns on the prob­lem of what an employee is to do when asked as a condition of employment to engage in an act or omission that offends his or her conscience.

It is clear that an employer has a duty to accommodate the religious practice and belief of its employees unless to do so would cause an undue hardship.

Undue hardship however, cannothinge on an employee's r efusal to perform an act or omission that is itself unlawful.

Bruce Ragin is a graduate of the Duquesne University School of Law and is in private practice.

Continued ...

Atnericans with Disabilities Act tnay provide protections for etnployees who face discritnination due to obesity OBESITY

Continued from page 28

Two litigation choices are offered to a plaintiff who brings an employment discrimination claim under the ADA. First, the employee can claim discrimination based on the actual physical impairment of obesity.

The difficulty lies in proving that obesity is a qualified disability. The employee must make a prima fa cie case showing that the obesity is a permanent or chronic impairment, that it limits a major life function and that the employer discriminated against the employee due to the employee's obese condition.

The argument is further confused by courts that insist on separating the obese into two categories: those who have a physiological disorder and those who overeat. A court using such reasoning may rule in favor of a claim brought by a :300-pound person with a th y roid condition and at the sa me time rule against a :300-pound person with a life­long history of being overweight.

This result defies the purpose of the statute because the ADA provides coverage regardless of how an individual became disabled.

Medical evidence is often used to establish or refute a disability. While the cause of obesity is not known, researchers increasingly reject the notion that environment and " will power" are controlling and now tend to emphasise genetic and metobolic fa ctors.n

The medical community is slowly realizing that obesity is not simply cured by diet and exercise, as shown when less than 5 percent of the obese lose weight and keep it off. 12 Weight loss and semi­starvation should not be confused with a medical cure for obesity.

The majority of courts which rejected handicap discrimination claims based on obesity did so because they viewed obesity as either a voluntary or treatable condition. The traditionally accepted a1·guments against classifying obesity as a disability are being eroded by advances in medical research. A shift in perception regarding what obesity is in medical terms may result in in creased court support for obesity-based claims.

The second choice for a claim under the ADA is for an employee who is "regarded as disabled " by the employer due to the obesity or a perception of obesity, as in Cook. Here, the claimant does not have to be in the strict weight definition of obesity or even consider himself or herself to be disabledY

The p1·ima facie case is proven by demonstrating that the employer perceived the claimant to be obese and unable to perform the job functions and then made employment decisions hased on that perception. The protections of the ADA are the same whether the case is brought as a disability or as a perceived disability.

The argument that obesity is a qualified disability under the ADA is gaining strength through the courts, the EEOC and the medical community. The court in Cook stongly stated that " in a world that confuses 'slim' with 'beautiful' or 'good ', morbid obesity can present formidable barriers to employment. Where these barriers transgress federal law, those who erect and seek to preserve them must suffer the consequenses."14

Dawn Marron is a second year day student at Duquesne University School of Law.

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Spring 1995 J U P-.1 S 31 ~

' I

I-Iunzor

From the Back Row . •• By R. Judicata

THE GRADUATION SPEECH YOU WILL NEVER HEAR

Ladies and Gentlemen, it is my pleasure to present to you our comencement speaker, the great legal scholar, the Honorable C. F. Corduroy, Dean of the Vincent LaGuardia Gambini School of Law . ..

W elcome, 1995 gr·aduates of the School of Law. It truly is a pleasure to be here with you

today as your commencement speaker, but hell , anything is a "tr·ue pleasure" if you're getting paid 25 grand to do it. The Dean told me that aU I have to do is tell you what a great school this is , how great it is to be a lawyer, yadda yadda yadda. Isn ' t that some associate dean's job? I mean, what the hell else do those guys do aU day?

But I digress. All of you people have dropped 60 G 's ovet· the last three years for the diploma we're about to hand you . And what will it get you? Money? Respect'? Love? Wake up! In case you haven't noticed, they cancelled L.A. Law. Matlock isn't doing so hot either. The glamour is gone from your profession.

At least you can call yourselves "professionals," joining the ranks of doctors, accountants , dentists, and the like. But when was the last time you saw a dentist on late-night TV pt·omising, "I'll get money for YOU!!"'? Have you ever seen a Doctor· handing out his business cards at church carnivals to kids who got sick on the Tilt-a-Whirl'? Know an accountant who buys the movie rights to his criminal clients' sordid lives'? Not likely.

" But professor, I came to law school to further the cause of justice," my whiny students tell me. Well , thank you Abe Lincoln. Just crochet that quote and frame it for your waiting room. Hang it above the head of every slumlord who

32 JVP--JS Spring 1995

waits to see you about evicting Granny. "Oh, but professor," they tell me, " the

financial rewar·ds are great!" Guess again, Sparky. Befor·e you celebrate that big raise, open up this month's copy of "Wired" magazine. Read the ar·ticle about that 20-year-old M.l. T. sophomore who just invented some computer gadget. That little geek is worth $5 million, and it only took him two hom·s to invent it. You probably still couldn't shepardize Palzgraffin that amount of time.

Don't even get me s tarted on how much money Macaulay Culkin, or Shaquille O'Neal, or, hell, even that brat who plays "Erkel" made by the time they were your age .

H ey, at least you went to law schooL at a damn fine University. They can honestly say that many of

theit· law graduates have gone on to distinguished legal careers. But think about this: how much money have they made from you in the process? What sort of overhead do they have'? A few library books? The light bill? Sure, they've got to pay all those professors . But how many professot·s did it take to teach you Torts first yeat·? How many students were in that class? RO? 90'?

If administt·ation found out the budget was shot·t at the end of this year, do you think that there is anything stopping them from throwing five more chairs in that big lecture hall? If anyone ever offers you shares in a new law school , put the Beemer in hock, Beavis. That stock is a hotty.

But at least you get a Bar Exam study break while you are here at commencement . I'll bet you ' re glad they waited for your year to double the fee to take the exam. Not to mention that they made it about ten times har:der. Why? Has the law really gotten any harder since last year·? Do they really think a tougher bar exam will make you a better lawyer? Or maybe the giant Wheel of Legal Karma just spun around to swat you in the rear end one last time. Good luck out there .

In conclusion , Mr. President , thanks for that honorary degree! It 's soooooo useful! Now maybe they' ll respect me in lioe at the post office or grocery store. "Make way!," they'll shout. " Make way for the honorary J.D.! He ' s more important than me!" I'll find some room for it in a desk drawer, or something.

H ell, I could ramble on fot· hours more , like a hopped up bull in some academic china shop, but you guys have bee n slurping cheap As ti Spumante all afternoon, so I'll end. But thanks to you, Dean, faculty, and graduates , for allowing me to share my thoughts with you this afternoon. It has been a true pleasut·e being your commencement speaker. I've been waiting yeat·s to get these things off my chest. Now aren ' t you sorry that Sonny Bono cancelled?

R . .I udicata is a third-~year day student and is currently fleeing to the outstretched arms of a country w hich lacks an extradition treaty with the United States.

liJ DUQUESNE UNIVERSITY Photos by Gail L. Brannon

Spring 1995 J U ~1 5 33

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