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Editor's Note - Duquesne University · 2016-07-14 · Editor's Note The subject of ... (46070) of the total drop, is civil rights federal question class actions. The ... law student

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Editor's Note The subject of electives has become a source of irritation for many law stu­

dents . Although Duquesne University School of Law has never offered the myriad of elective courses which some other law schools incorporate into their curriculum, there is still a great deal o f concern over the subject here.

Some students perceive the law school elective as that once-in-a-lifet ime shot at an area of substantive law. Their philosophy eems to be that "opportunity knocks but once." Others see the elective as a juicy resume item which will in­crease their marketability and sa lary bargaining position. St ill o ther elect courses which seem to be easy to "get through" or whose instructor has a reputat ion of being an "easy grader."

Hopefully, the majority of students who elect a specific course are taking it because the area covered is one in which they are interested or in which they ho pe to practice. But, even more than this, the electi ve often offers a review o f many substantive areas of law-often termed "the basics" - in new combination , with the possibility of inspect ion of those areas from different angles.

The numbers game is played by bo th curriculum co-ordinato rs and students alike . One chool may offer a plet hora o f elect ives and another-like Duque ne­relatively few. But overall, if records were indeed scrutin ized , the majority of students at law schools where a wide field of electives a re offered are st ill prob­ably electing the "basics" which remain part of the requi red cou rse of study at Duquesne.

It is my belief that even in this age of legal specialization only the most naive law student starts the specialization process in his first year of law school. There is a base in the law, a format which transcend every fi eld , which is the legal reasoning process and the fundamentals of American Law. Upon th is ba e specialization can be succes fully bu il t. Without it, the legal mind might well work in a universe devoid of gravity, seizing some st ray particle of law, as it floats by.

So , I direct th is brief commentary to the law tudents of Duquesne. In the struggle for ever more electives . will we only turn back upon ourselves and have the net result of the conflict be iden tical to that which is ex tant? Perhaps that one elect ive addition should be Legal Hi ·to ry, where we cou ld begin to teep ourselves in the basis and development of the system in which we will practice. I leave this for your consideration.

lin this issue

3 "NADER'S RAIDER"

Sincerely,

~~~p'~ Michael J . Calabro Editor-in-ch ief

6 DIVORCE MEDIATION 8 SPORTS VIOLENCE

VOL. XV No.3 - Spring 1981

Editor-in-Chief Michael J . Calabro

Associate Editors J. Joseph Braszo

Lauren L. Blackburn G. Anthony Siplin

Assistant Editors Cynthia M. Frederick

Paul McGrath

Faculty Advisor John J. Sciullo

Photography Paul McGrath

Michael J. Calabro

Illustration Tony Bittner

Staff Members: Paul Giba, Wayne Spaeth, Pamela Haywood, Michelle Lally, Nat Cohen.

JURIS is a student publication of the Duquesne University School o f Law. Views and opinio ns expressed are not

necessarily those of JURIS or Duquesne Univ'ersity. All ma nusc ripts and

comments may be addressed to JURIS, Duquesne University School o f Law,

600 Forbes A venue, Pittsburgh, Pennsylvania 15219.

Telephone (412) 434-6305

Copyright 1981 Duquesne University

4 JOB MARKET 6 BAILEY 9 INAUGURATION

10 FOOTNOTES

11 JUDGES

11 BARRISTER'S BALL 5 ORGANIZATIONS 7 MALPRACTICE 9 ABA

CONFERENCE 12 240 DA Y RULE

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One Percent Solution: The "Nader's Raider" in

Every Law Student For over a decade Ralph Nader

has alerted law students to the escape of the legal profession from responsibility for the quality and quantity of justice. In his analysis, law schools are central to the prob­lem.

Legal education is a highly so­phisticated form of mind con­trol that trades breadth of vi­sion ... for freedom to roam in an intellectual cage . .. Racial­ism, the gap between rich and poor, the seething slums -these conditions were brought to the attention of law firms by the illumination of city riots rather than the illumination of concerned intellects . (Nader, "Law Schools and Law Firms," in "The New Republic," pp.20-2I, Oct. 11, 1969.)

Law school curricula, according to Nader, prepare the individual for ac­quisition rather than activism. Tax, corporate, securities, and property law outweigh health, criminal, and civil rights law. Estate planning courses ("!re universal; environmental planning courses, until recently, did not exist.

Law students study collapsible cor­porations but not collapsing tenements. Even when cooperatives and non-profit corporations are in the casebook, they are absent from the syllabus. Brief treatment of such legal tools as mandamus, habeas cor­pus, and corporate "duties" leaves the graduate unprepared to challenge illegal actions of government and private institutions. A professional ethics course focuses on issues more appropriate to a trade association than to a profession with a monopoly power over access to justice.

Lawyers control debate in most public forums and, therefore, have special obligations. Ethical Con­sideration 2-25 of the A .B.A . Code of Professional Responsibility specifies that "(t)he basic responsibility for providing legal services for those unable to pay ultimately rests upon

the individual lawyer ... " E.C. 8-1 states that "(b)y reason of education and experience, lawyers are especially qualified to recognize deficiencies in the legal system and to initiate correc­tive measures therein. Thus they should participate in proposing and supporting legislation and programs to improve the system."

In response to the escape of the legal profession from these obliga­tions, Ralph Nader joined with other public interest lawyers and with law students to found a grassroots lawyer's organization based on the one percent solution. It is called the Equal Justice Foundation.

The Equal Justice Foundation is a membership organization of lawyers who tithe and law students who pledge to tithe a small percentage (1070 or more) of their post-law school in­comes for a minimum of one year to promote access to justice for en­vironmental and consumer activists, poor persons, minorities and women, and other underrepresented client­groups. E.J.F . is contributor­controlled. Members (including law student members) elect and may run for the Board of Directors. Members also participate in referenda used in setting the Foundation's agenda of reform work .

E.J .F. works on issues that are likely to have wholesale impact on access to justice. Reform of class ac­tion procedures is one example. By restricting federal court jurisdiction over class actions and imposing unaf­fordable notice requirements on plaintiffs initiating 23(b)(3) class ac­tions, the Supreme Court has reduced by over forty percent the number of class action suits brought. The highest single category of reduced fil­ings, accounting for nearly half (46070) of the total drop, is civil rights federal question class actions. The second highest category is consumer class actions. Ironically, in a time of overcrowded court dockets, the Court effected a large-scale drop in the use of a procedural tool designed to save judicial resource. In response

to requests from Senate and House committees, E .J .F . members and staff have analyzed and submitted comments on legislation to reform class action notification require­ments.

E.J .F. has also worked , during its first year of existence, on legislation to liberalize standing-to-sue re­quirements, to provide attorneys' fees for successful litigations that confer substantial public benefits, and to establish public participation funding in agency proceedings . A special E.J.F. committee assisted in the drafting of H.R. 7010, the Corporate Democracy Act. In response to Ex­ecutive Order 121160, E.J .F. sub­mitted sample guidelines for increas­ing consumer protection to forty­three federal agencies and depart­ments.

Most recently, the E.J.F. staff has initiated a major national organizing effort called the National Energy Ac­cess Project (NEAP) . Citizens' or­ganizations and individuals around the country are uniting in NEAP to fund the presentation of ahernative viewpoints in Nuclear Regulatory Commission and other energy agency rulemaking proceedings.

In accordance with the priorities of its members, E.J.F. conducts legal reform on the local level as well. Each law student pledger may designate that fifty percent of his/her post-law school tithe will return to the local chapter to fund locally-initiated ac­cess projects. Through this fifty / fifty funding scheme, a successful Pledge Drive at a law school provides money for local public interest activity dur­ing the following year.

Local E.J .F. projects are already underway in several cities. In Boston, for example, law school chapters have joined together in a project to reform access to small claims courts . E .J .F. funded a student in Eugene, Oregon, to draft recommended re­forms to the state's class action pro­cedures. The Oregon Council on Court Procedures adopted virtually every recommendation.

(continued on po~e 4)

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NADER'S RAIDER continued

E.] .F.'s method for financing public interest laws comes at a time of par­ticular crisis in such funding. A 1976 report of the Council for Public In­terest Law entitled. Balancing the Scales of Justice re'"ealed that (ex­cluding legal services attorneys) only 600 lawyers in the country worked fun-time in public interest law. The 1975 budgets of all major public in­terest law centers throughout the fifty states totalled less than the combined revenues of two major Wall Street law firms.

The Ford Foundation, which was responsible for over 50OJo of the grants given to such public interest organizations, decided in 1979 to stop making yearly grants to the ten law firms it regularly financed . According to the Washington Post, the Ford Foundation admits that this move could bring the area of consumer ad­vocacy to a halt. (p .FI, Sept. 14, 1979).

Among the endorsers of the Equal Justice Foundation are Ramsey Clark (former United States Attorney Genera!), Laurence Tribe (Harvard Law Professor), Chesterfield Smith (former President of the A.B.A.), and, of course, Ralph Nader.

As law schools are central to the problem, so they are central to the solution. In proposing an organiza­tion of tithing lawyers, Ralph Nader wrote, "(A) broader deployment of the legal profession (is needed) to per­mit more lawyers opportunities to work on lasting system change and to represent clients who are presently shut out of our legal system. This is where law students can make a dra­matic contribution to our country."

Students at over thirty law schools around the country are organizing E.J.F. tithing Pledge Drives . The staff of E.J .F. is currently conducting a national search for E.J .F. "ADVO­CATES" to organize at law schools. E.J.F. provides to ADVOCATES comprehensive organizing and issues materials. Interested students should write or call: The Equal Justice Foun­dation, 1333 Connecticut Ave., N.W . #400, Washington, D.C. 20036, phone - 202 452-1267.

• Monday is an awful way to spend one-seventh of your life.

The Job Market T he legal employment picture for

graduates of law schools approved by the American Bar Association has again shown moderate improve­ment for the sixth consecutive year according to a survey released by the National Association for Law Place­ment at its recent annual conference in Vail, Colorado. This survey - the "Class of 1979 Employment Report" - revealed that 21,633 out of 22,771 or 95.0OJo of the reported law grad­uates had obtained a law-related posi­tion within nine months after gradua­tion. The survey for the NALP Em­ployment Report is conducted as of March 1st of each year in order to allow graduates from the previous year to receive their bar examination results and obtain employment based upon those results.

The 1979 NALP survey is based upon the responses from 139 or 82 .2OJo of the ABA-approved Ameri­can law schools. According to the NALP Report, 54OJo of all graduates entered the private practice of law. Of these, 13.1 OJo joined firms of over 50 la wyers and 8.4 OJo were self­employed, while the rest became associated with firms ranging in size from 2 to 50 lawyers. In addition, 14.7OJo of the graduates entered gov­ernment service; 1O.6OJo took posi­tions with business concerns; 9.8OJo accepted judicial clerkships; 5.4OJo chose public interest - public service positions; 3.0OJo pursued academic careers; 1.7OJo entered the military service; and 0.8OJo went into fields classified as "other". The statistics for the various employment catego­ries have remained relatively stable for the past five years with the excep­tion that there has been a marked decline in the percentage of graduates entering government service, from 17.6OJo in 1975 to 14.7OJo in 1979.

The NALP Employment Report also reveals the geographic distribu­tion of the new law graduates. These figures confirm that graduates choose to settle predominantly in urban areas. The twelve cities most often listed by the graduates were (in de­scending order): New York City; Washington, D.C.; Los Angeles; Chicago; Boston; San Francisco; Houston; Minneapolis; Atlanta; Phil­adelphia; Dallas; and Pittsburgh. The

six leading states were: New York; California; Illinois; Pennsylvania; Texas; and Ohio. The District of Co­lumbia, however, accounted for more graduates than any state except New York and California. Regionally the breakdown of the geographic dis­tribution of graduates was: 34.8OJo in the Northeast; 16.3OJo in the South­east; 23 .1 OJo in the Great Lakes and Plains states; IO.4OJo in the Southwest and Rocky Mountain Region and 14.5OJo in the West Coast Region.

The results of the NALP Employ­ment Report cast doubts upon fore­casts which predict unemployment for large numbers of the law graduates. The figures for entry into traditional legal employment have held relatively firm over the past five years, but at the same time there seems to have been a trend toward greater diversification in the oppor­tunities available to law graduates in newly developing fields . This is due in large part to versatility of the law degree which allows new lawyers to work in areas formerly unavailable to lawyers. These "new" fields as com­piled in the NALP survey include over one hundred different types of positions for law school graduates.

"The NALP Class of 1979 Em­ployment Report" was conducted, compiled and edited by Arthur Ter­zakis, Director of Placement, McGeorge School of Law, University of the Pacific, Sacramento, Califor­nia.

While this report does not give in­formation regarding employment percentages at individual law schools, it does provide the most comprehen­sive survey of the job market for re­cent law graduates.

The "Employment Report" is available for $20.00 plus $2.00 for postage and handling, payable to NALP, from L. Wayne Greenberg, NALP Administrator, Tulane Uni­versity School of Law, New Orleans, Louisiana, 70118; (504) 866-2751.

Editor 's Note: The above report should not be construed to mean that firms are descending upon law schools with easily obtainable job of­fers. The Duquesne Law School Placement Of­fice indicates that positions are sti/l highly com­petitive and that they must be sought by prepared and serious applicants.

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Law School Org,anizations

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L. to R. Colleen McCarthy, Clint Smith, Amy Webster, L. to H. Patricia Gull'ill, Jerry Haines, Katll.!' COl/du-Clift Weber, Pey,y,y Ey,an. Not pictured: Jim Sander. Caritis, Gwen Hol){)ss(}fI, Hichard McCofli)!.I('.

P.A.D. The 1979-80 Egan Chapter of Phi

Alpha Delta was honored at the 1980 Biennial Convention in Hot Springs, Arkansas, as one of the top five chapters in the world for Chapter Merit Award and Outstanding Justice Award. This year's officers and members, through an even more ex­tended program of services and ac­tivities - including such new plans as Prothonotary Week, Casino Night, a possible Alumni Association, and a Panel Discussion series sponsored jointly with ABA/LSD - hope to continue the distinction brought to Duquesne by last year's activities.

Patent Moot Court Team Kathy Condo-Caritis and Edward

L. Pencoske represented Duquesne at the semi-final round of the Giles S. Rich Patent Moot Court Competition in New York City. Kathy and Ed were chosen from the seventy students who completed in the Patent Moot Court Competition held by Duquesne last February. The New York competition was designed to provide interaction with students from other law schools and to provide the experience of ex­posure to judging by practicing pat­ent attorneys.

DUQUESNE LAW REVIEW The staff, editors, and executive editors of the Law Review are respon­sible for preparing, editing, and publishing the quarterly Duquesne Law Review. The Law Review pre­sents practical and analytical writings by attorneys, Law Review members, and other students in the school of law.

DUQUESNE SHALOMI TRIAL MOOT COURT

10 R. Gary Falalovich, Chip Holsworth, Kivovarli Gramby, Lisa Sciullo, Michelle Lally, Nat Cohen. Not pictured: Ken Steidl, Marin Esparaguero, Karen Hughes, Nate Kingery.

The Shalom Trial Moot Court pro­gram gives third-year day and fourth­year evening students the chance to prepare and present a case before a jury and judge in an actual court­room setting. First and second year students serve as witnesses and juro'rs, with law professors and prac­ticing attorneys functioning as judges. Winners of the Duquesne Trial Moot Court competition will represent the Law School in two na­tional compe~itions, to be held this year in Washington, D.C. and in Houston, Texas. Additionally, the team will be competing in the Gourley Cup regional competition held in Pittsburgh.

5

Mandlatory Divorce Mediation California Innovation ·

A new California law that requires mediation for certain divorce cases will not only save the court sys tem time and money, but is likely to result in settlements that are more satisfac­tory to the couples involved.

"Appropriately enough, the state that made community property, pali­mony, and no-fault divorce house­hold words is- on the leading edge of yet another divorce trend," wrote John A. Jenkins in his article, "Divorce Cali fornia Style, " in the January issue of Student Lawyer.

The new law is part icularly signi fi­cant because it could serve as a model for othcr statcs that are experiment ­ing in mediation but have not yet made it mandatory.

T he law sets up a conciliation court in each county as a branch of the state superior court. This ncw court has principle jurisdiction over divorce cases involving child custody , visita­tion rights, and domestic violence.

Couples must bring t heir cases to a court-appointed mediator to talk over t heir disagreements and discuss possi­ble compromises . When they reach an

agreement, or an impasse, ,they pro­ceed to divorce court.

The system seeks to correct the ma­jor problem wit h t hc adversary sys­tem when it is applied to divorce cases. That problem is that sellle­ments reached by lawycrs on behalf of their clients and imposed by judges rarely produce lasting solutions. In­stead, divorccd partners "often find themselves running back to court to modify or contest a decree they never rcally accepted in the first place, " Jenkins writes .

This continuing legal action takes its toll not only on the court system, but al so on the couple.

Those who have studied the media­tion process agree that it resolves this problem by bringing the couple to the bargaining table to work out a settle­ment with the assistance of an impar­tial third party trained in solving such problems.

Jenkin s quotes Jay Folberg, a pro­fessor at Oregon's Lewis and Clark Law School and chairman of the relatively new ABA committee on divorce mediation in the Section of

Family Law: "Mediation saves time, and it's likely to save the couple money. Most importan1t, rhey will have a beller divorce settlement, one they can live with, because they deter­mined t he terms themselves."

The California law sets certain specifications for the mediators. They must have a master of arts degree in psychology , social work, or marriage and family counseling, and have an understanding of the California judicial system. They do not have to be lawyers , and most are not.

Although the mediator does not act as advocate or attorney for either side, critics see the potential conflict of interest as the major flaw in the system, particularly if the mediator is a lawyer.

According to Yale Law School pro­fessor Geoffrey Hazard, a member of the ABA Commission on Evaluation of Professional Standards that is redrafting the lawyers' ethics code, "Obviously, there may be situations where the conflict of interest is suffi­ciently serious that a lawyer should not become an intermediary."

Jenkins concludes that while the organized bar and other states assess the California model, divorce media­tion promises to bring relief to the California court system and to couples.

• Congressman Donald A. Bailey On Legal Education

I sincerely feel we would be better off in Pennsylvania if we eliminated the bar exam and required a year or two of a closely evaluated apprentice­ship . We would produce a more effi­cient attorney coming directly out or law school. The difficulty with the bar exam is that most people view it as an obstacle . The review courses taken in preparation for the exam are good in that they cause you .to evaluate and come back to material that hasn't becn seen in a while, HO\\'­

evcr, the c.xam ihclf is so ahstract anu general that timc cxpenued taking the examination \Youlu he hetter spent rc\earching. Thc \'oung and inc\rcri­enced attorney nccus to he placl'u in a pmition where he can vie\\' the entirc legal rrocess and WOL'clime from a practical aspect v,'hich would he so helpful in actual practice. I feel that

the ability to research rapidly and quickly is what makes a "!awyer 's lawyer" of you and the more "lawyer 's lawyer" we have the finer legal product we are going to pro­d uce,

Basically, lawyers view themselves as service oriented people . They have an obligation to work as hard as they can to do their job in the courts, before a regulatory commiss ion or wherever they perform their duties. This is especially true in Congress, The argument that there are " too many lawyers in Congress" who have a tendency to over-legislate is falla­cious. [ don't feel that being a lawyer has anything to do with the kind of legi slativc rrodllct vou produce. The legislative dra fting committee has to write legislation with an eye to court interpretation as well as to applicable

regulations within the existing admin­istrative framework. With this type of drafting procedure it really doesn't matter what type of individual writes the legislation for the above factors must constantly be considered.

I appreciated and am very grateful for the excellent education I received at Duquesne . I complained bitterly at the time about the teacher's, grades and procedures, but you wouldn ' t have a prcstigous law school if you didn't have students complaining. As a result, academic achievement was difficult at Duquesne and students were constantly engaged in detai lled study. I am a better individual for my experiences in law school, and I am confident this feeling shall be shared by all future graduates of Duquesne University School of Law . •

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Malpractice in Pennsylvania~ _. The Crisis Continues

I n response to the then existing liability insurance "crisis" in the

medical community the Pennsylvania Legislature, on October 15, 1975, enacted into law the "Health Care Services Malpractice Act. ". I The avowed purpose of the Act was, inter alia, "to establish a system through which a person who has sustained in­jury or death as the result of tort or breach of contract by a health care provider can obtain a prompt deter­mination and adjudication of his claim and the determination of fair and reasonable compensation".' The Act provided for the appointment of an Administrator whose duties in­cluded the establishment of Arbi­tration Panels which would have original, exclusive jurisdiction over claims for loss or damages resulting from the furnishing of medical serv­ices which were or should have been provided. J Each seven member Panel' is to conduct a hearing in the County where the cause of action arose. The resulting decision of the Arbitration Panel is appealable to a Common Pleas Court which would hear the claim de novo. S

On September 22, 1980, a divided (5-2) Pennsylvania Supreme Court declared the Pennsylvania Health Care Services Malpractice Act uncon­stitutional. Joan A. Mattos vs. C. Fred Thompson, Jr., M.D. (No. 124 E.D . Misc. Docket 1979). Writing for the majority in a 13 page Opinion Justice Nix declared that after a meaningful evaluation of the efficacy of the Act one can only conclude that the Act is incapable of achieving its purpose of prompt dispute resolution and that the extensive delays in such resolution cast an impermissible burden upon the constitutional right to a jury trial.

I Act of Oct. 15, 1975, P.L. 390, No. III, ~ 101 et. seq., as amended by the Act of Dec. 14, 1979, P.L. _, No. 128, 40 P.S. ~ 1301.101 et. seq.

I 40 P.S. 1301.102 I 40 P.s. 1301.301, 308, 109 • Legislative Act 1979-128 reduced

the Panel from 7 to 3 members I 40 P.S. 1301.509

by John Braszo

Prior to the Mattos case the Act had withstood several other chal­lenges during its short history.· Most of the challenges centered around three issues: (A) whether the Arbitra­tion process created by the Act was filled with such interminable delay that it violated State constitutional guarantees of access to t he Courts, justice without delay, and right to jury trial; (B) whether the postpone­ment of the availability of the right to jury trial by requiring Arbitration as a condition rrcccdcnt to trial rlan:, an imrermissibly onnous burden on litigants; and (C) whether the Act violated the 14th Amendment due process clause of the Federal Con­stitution.

Earlier decisions upholding the constitutionality of the Act pointed out that Pennsylvania had a com­pelling interest in developing an ap­proach to expediate the prompt deter­mination and adjudication of mal­practice claims, that the legislation as enacted was reasonably designed to effectuate the objective, and that any resulting encroachment on constitu­tionally guaranteed rights was, therefore, permissible. Parker vs. Children's Hospital of Philadelphia. 7

The Court indicated that deference to the legislature required that the Act be given a reasonable period of time to operate before challenges to its constitutionality should be enter­tained. 8

By the time the Supreme Court had assumed Plenary Jurisdiction over the Mattos case in September of 1979 they were ready to take another look at the findings of fact that they directed the Commonwealth Court to make. Enough time had passed . A thorough evaluation of the workings of the Act revealed the magnitude of the failure. As of May 31, 1980, of the total of 3450 cases filed with the Administrator 73070 were neither

6 The Act became effective January 13, 1976

7 483 PA. 106, 394 A2d 932 (1978) 8 Ibidl at 121

resolved, settled, nor terminated. Six of t he original 48 cases filed in 1976 remain unresolved, as do 38070 of the claims filed in 1977, 65070 of the claims filed in J 978 and 85070 of the claims filed in 1979. By any yardstick the Act had fallen short of its goals .

The Court concluded its assessment of the Act by noting that while Ar­bitration is a viable alternative in many areas, the statutory scheme provided by this Act failed in its goal to provide an effective ~lternative dispute resolution forum in the area of medical malpractice . The Court further reasoned that the uncon­scionable and intolerable delays occa­sioned by the Arbitration system, together with its onerous conditions, restrictions and regulations imposes an oppressive burden upon the right to trial by jury guaranteed by the Constitution of the State of Penn­sylvania .

In his concurring 0l?inion Justice Larsen launched an acrimonious at­tack on the majority for not having arrived at this conclusion two years earlier in Parker. Larsen, who /CtJIl.'illll ('r / ,If' /JU l!( ' J])

7

Curbing Violence in 'Professional Sports: Crime Bill aims to make Violence on the Playing-Field a Federal Offense.

Commentary

S hould the long-arm-of-the-Iaw extend its reach to deal with acts

of violence on the playing-field? Should the federal courts intervene 'to curb acts of public mayhem disguised as part of the "competitive spirit" of professional. sports? Representative Ronald Mottl (D-Ohio) seems to think so. Mottl, a former profes­sional baseball player, is t he sponsor of the Sports Violence Act of 1980 which is receiving mixed reaction from Congress and the sports world. The Bill [H.R. 7903], aims to deter and punish through criminal penalties those athletes who engage in overt acts of violence on the playing-field.

Growing public distaste for ex­cessive violence in professional sports mandates something more than a mere" unnecessary roughness or un­sportsman-like conduct" penalty . In­ternal rules and penalties have failed to deter athletes from engaging in fisticuffs and inflicting intentional blows to intimidate or incapacitate opponents. Mounting concern for the youth of our nation, who view pro­fessional athletes as role models, demands deterrence.

When professional athletes engage in criminal conduct off the playing­field they must face the conse­quences. On the other hand, when overtly violent acts are perpetrated on the playing-field few professional athletes are prosecuted. What may constitute unquestionable criminal assault in an alley outside the ticket­gate is often written-off as part of the game when inflicted inside the ticket­gate. Should there be such a vast disparity in the treatment of violent acts off the field and on the field? So much emphasis is placed on winning that every means necessary to insure victory is employed, even violence.

Mottl's bill defines excessive force as that which is unreasonably violent and could not be foreseen or implied­ly consented to by the injured player and has no reasonable relationship to the competitive goals of the sport. Mottle claims the legislation, which sports a penalty of $5000 or a year in prison, or both, would not affect nor­mal physical conduct that flows

naturally from sports, but would punish and deter contact that is beyond the bounds of fair play. One is led to wonder whether last summer's occasional visits by batters to the pitcher's mound to protest wild pitches has a "reasonable relation­ship" to the sport of Baseball. "The bill is directed toward the kinds of vicious, dangerous contact that a civilized society should brand as criminal whether it occurs inside or outside the sports arena - conduct in which the player actually steps out­side the role of athlete and sportsman," - Mottl.

Proponents of the bill believe that professional sports have failed to keep their promise to police their own sports. Local prosecutors have been reluctant and ineffective in prosecut­ing players who engage in overt acts of violence. The prosecution has been ineffective because the present criminal system is not designed to

deal with sports violence. For exam­ple, proving the element of intent re­quisite to sustain a conviction for criminal assault is extremely difficult. Prosecutors facing re-election are reluctant to prosecute sports figures for fear of retaliation by those fans who make up the voting electorate.

The National Football League (NFL), issued a directive in 1978 warning clubs that "unbridled" violence, designed to injure or in­timidate opponents would lead to "serious league discipline." (The Na­tional Basketball Association (NBA) has taken a similar stand toward violence.) The Commissioners of the major spectactor sports view the bill as unwarranted and unnecessary. Their attitude was emphasized recently by declining to testify at House Judiciary Subcommittee hearings on the bill. Mottl commented on the disinterest of the Commissioners saying: "When we were dealing with TV and cable TV legislation, all the Commissioners were present. When the almighty buck was involved, they were present. When harm to athletes is the issue, they are absent."

Richard B. Horrow, a 25 year old 1980 Harvard Law School graduate, worked closely with Mottl on the bill. Horrow is the author of the recently published book Sports Violence, a collection of evidence which con­cludes that Pro League Offices have failed to deal adequately and effec­tively with violence during games. Horrow lists numerous ~ccountsof how the National Hockey League (NHL) encourages violence instead of curbing it for the sake of filling arenas. The labeling of players by their respective clubs as "the en­forcer," "the policeman," "the hit man," or "the designated hitter" to sell tickets encourages the blood-lust of the fans. It has been said by many that -We-are breeding a generation of people who are violence prone."

Recognizing that criminal intent is hard to prove beyond a reasonable doubt, the only alternative to criminal prosecution the injured vic­tim has is to bring a civil lawsuit against the player who injured him. A verdict against the defendant merely involves compensation by the defend­ent to the injured player as opposed to the imposition of a prison term in a criminal prosecution. A jury might be more willing to impose a money judg­ment upon the defendant rather than

(conl;nueti VII page 9)

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Duquesne Law Students Attend Inauguration

Nat Cohen , Gary Falatovich, Bruce Phillips and John Sellinger were invited to participate in the Presidential Inaugural events sched­uled in Washington, D .C. during January 18th to 20th . The group at­tended a reception honoring U.S. Governors and Governors-elect at the Sheraton Washington Hotel Ball­room on January 18th . Maureen Reagan, John Connally and General Omar Bradley were the dignitaries in attendance.

The four were also invited to a reception honoring the Vice Presi­dent-elect at the National Museum of American History on January 19th .

Congressman Don Bailey, a grad­uate of Duquesne Law School , sup­plied tickets to the Inauguration and met with the students at his office in Washington. Following the cere­monies, the group was privileged to be able to attend the Inaugural Ball. Guests from Pennsylvania were assigned to the most prestigious site: the Pension Building . The guests at this location included international dignitaries, President and Mrs. Reagan, Vice President and Mrs. Bush, and cabinet officers Schweiker, Watt, and Haig.

• SPORTS VIOLENCE continued

imposing a criminal sanction which may end the career of one of their heroes. Furthermore, an injured player bringing a civil action need only prove his case by a "preponder­ance of the evidence" rather than the "beyond a reasonable doubt" needed for a criminal conviction. The intent necesssary for civil assault may be also difficult to prove but, at least an injured player has a fighting chance to recover on a negligence theory for carelessness.

One fact still remains. Injured pro­fessional athletes are reluctant to bring civil suits against other players

"The bill is directed 'toward the kinds of VICIOUS, dangerous contact that a civi­lized society should brand as criminal whether it occurs in­si<le or outside the sports arena - con­duct in which the player actually steps outside the role of athlete and sports­man," - Mottl.

ABA Client Counseling Conference

"Ethical Issues in the Lawyer­Client Relationship" will be the topic of the national Client Counseling Conference sponsored by the Ameri ­can Bar Association Law Student Division. The conference is scheduled for Friday, March 27, 1981 in Lans­ing, Michigan .

The principal speaker will be at ­torney Richard Wasserstrom, an outspoken critic of lawyer's ethics and author of several books on legal philosophy. He is a professor of philosophy and chairman oft he Board of Studies in Philosophy at the University of California, Santa Cruz .

Other scheduled speakers are Harold Rock, Omaha, a former member of the ABA Committee on Ethics and Professional Responsibil­ity, and Dr . Andrew S. Watson, psy­chiatrist and law professor from the University of Michigan.

The Conference is being held in conjunction with the Law Student Division's annual national Client Counseling Competition for law students . The subject of the competi­tion is "Discrimination in Employ­ment and Credit." The final round of the competition will be Saturday, March 28 in Lansing. Both the con­ference and the competition will be held at t he Thomas M . Cooley Law School.

• who inflict injury. Pressure from fellow teammates, clubs , and coaches is often so overwhelming that an in­jured player is led to honestly believe that he has im pliedly consented to be­ing hit, or that he has assumed the risk when he joined the club. Al­though the chance of successful pas­sage of the Sports Violence Act of 1980 is slim, the bill has served an im­portant purpose. That is, pUlling the sports world on notice that if Leag.ue Offices do not clean-up their own sports, Congress will do it for them.

by Paul R. Giba

9

10

______________ Footnotes ____________ _ Professor Kenneth Hirsch's sab­

batical during the 1979-80 academic year proved to be very productive. Professor Hirsch relinquished all teaching assignments except for teaching first year evening st udents Property law. The Professor spent the Fall semester pursuing his interest in environmental law by completing work on an inter-university research study involving faculty and students of the Duquesne University School of Law and the Carnegie-Mellon Uni­versity Department of Engineering and Public Policy and Graduate School of Urban and Public Affairs. The study was funded by a grant ob­tained by the late Professor Robert Broughton of the School of Law , from MPC Corporation. The MPC Corporation fund for Air Pollution Studies in Allegheny County was the result of a payment made by the United States Steel Corporation as part of a local air pollution dispute settlement. The study culminated in a Duquesne Law Review article, "Clearing the Air: Some Legal Aspects of Interstate Air Pollution," 18 Duq. L. Rev. 53 (1979), which Hirsch co-authored with a 1979 Du­quesne Law School graduate, Steven Abramovitz. Hirsch also served as a Visitor at the University of Pittsburgh School of Law where he was given an office and library research privileges to facilitate his environmental research .

The Pro fessor devoted t he Spring semester to assisting Federal District Court Judgc Hubert I. Teitelbaum, an Adjunct Professor of Law at Du­quesne, in the researching and draft­ing of court opinions involving com­plex issues of law and inflation. One such decision, Aluminum Co. of America v. Essex Group, Inc., 499 F. Supp. 53 (D .C. Pa., 1980), appears in the new edition of Columbia Law School Professor E. Alan Farns­worth's Cases and Materials on Con­tracts, at page 210.

The Law Alumni Association will host its annual Reunion Dinner on Friday, April 10, 1981 at the Pitts­burgh Hyatt Hou se, Chatham Center.

In commemoration 01" the 70th anniversary of I he l.aw School and the 30th anniversary 01" the Reunion

Dinner, the Law Alumni Association is pleased to announce the creation of a very special award The Founder's Award. This award will not be presented on an annual basis, but only on those special occasions when the Association deems it appro­priate,

The first ever Founder's Award will be presented to Chief Justice Henry X. O'Brien, L '28, in recogni­tion of his attainment of the highest judicial office in the Commonwealth of Pennsylvania, his numerous years of service to the public through the legal profession, and his support and dedication to Duquesne University. Chief Justice O'Brien and his wife will be present to receive the award. All current and former members of the Supreme Court of Pennsylvania will be invited to attend.

Pennsylvania' s Senator Arlen Specter will be the featured guest speaker.

A comprehensive new A BA pub­lication describes systems and proce­dures for the employment of legal assistants in order to provide more ef­ficient and effective legal services.

"Working with Legal Assistants," published by the American Bar Asso­ciation Section or Economics of Law Practice and the Standing Committee on Legal Assistants of the ABA, is in­tended for use by lawyers and legal assistants.

It is written both for law offices that are planning to expand existing

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programs as well as for offices with little or no experience in working with legal assistants.

The manua 'i begins with the plan­ning, development, organization, and management of a program. It con­tains sample job descriptions and estimated economic benefits.

With sample forms, checklists, and procedures, the 'volume details the role a legal assistant can play in in­vestigation and fact-finding, factual research and analysis, trial practice, insurance defense, medical-legal practice, bankruptcy, and domestic and family law .

Although the volume concentrates on civil litigation and appellate prac­tice in a private firm, it also discusses how a legal assistant can be employed by a corporate or government office.

The manual relies on the team ap­proach for the lawyer and legal assis­tant, to make maximum use of the assistant's specialized training and to reduce the lawyer's workload.

This is the first of two volumes on legal assistants. The second volume, to be published in the Summer of 1981, will concern other substantive areas of law and types of law practice for the assistant.

The book was edited by lawyers Paul G. Ulrich of Phoenix and Robert S. Mucklestone of Seattle .

It may be purchased from the ABA Circulation Department, J J 55 E. 60th Street, Chicago, lL 60637 for $25 plus $ J handling charge for each order.

Duqucsne University Schooi of Law had 90(t/o of its graduates to suc­cessfully pass the ,July bar examina­tions. Although this was 6(t/o less than last year's results at Duquesne, it was still 8.6070 higher than the state passage rate. Duquesne graduates have consistently performed better than the statc, as shown in the past five years. This year's decline Illay be due in part to the raising of the auto­matic pass score needed on the multi­section or the bar exam.

[)UQUESNE STATE

1980 90070 81.4070 1979 961170 84070 1978 98.6070 89070 1977 97. I % 89.4070 1976 97% 89%

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"MEET THE JUDGES" Phi Alpha Delta's annual "Meet

the Judges" Cocktail Reception was held on November 15 , 1980, at the Cricklewood Hill Club Room.

The following judges attended the event : the Honorable Francis A. Barry, the Honorable Marion Finkelhor, the Honorable Michael O'Malley, the Honorable Henry R. Smith, Jr., the Honorable Leonard C. Staisey, and the Honorable Patrick R. Tamilla . Judges Smith and Judge Tamilla also serve as Adjunct Professors of Law at Duquesne .

Special guests were Law School Dean Ronald R. Davenrort and Pro­fessor Cornelius F. Murphy, Jr .

Well attended by Phi Alrha Delta members from both day and evening divisions, the reception turned out to bethemost successful of recent years.

The purpose of thi s social gather­ing is to rrovide Phi Alpha Delta members with the opportunity to in­formally meet prominent members of the surrounding legal community. It is viewed by student s as a transitional step to becoming full members of the local bar. •

BARRISTER'S BALL The Duquesne Law School Bar­

rister's Ball was held on Saturday, December 13, 1980 in the Duquesne Universit y Student Union Ballroom. The gala event is the highlight of the Law School social calendar. The Ball featured music by disc jockey "That's Entertainment," followed by the traditional Law School Skit s.

A large sandwich buffet replaced last year's snack tables and three large bars were set-lir to se rve the 600 to 700 rersons who attended. The dance floor overflowed mo.,t of the evening with stlluent s and guest s usherin g in the Holiday Season. " The Tornado" made a surrr ise gllest ar­rearance.

Und e r the s lirervi s ion of Barri ster's Hall Committee Chairman Mike Porke and the SBA officers, th e festivities were hailed as th c best ever and were rrovided at no addi­tional exrense over last year's ball.

-Kevin Leonard

II

12

240 Day Rule T his past August, workers in the

Prothonotary's Office of the Civil divi ion of the Allegheny Co unty Court of o mmon Pleas experienced orne hectic moments when local

pract itioners rushed to comply with the State Supreme Co urt' s 240 Day Order . implemented locally by Admin­istrative Judge Nicholas Papadakos.

Several years ago, the Criminal divi­sion of the Court of Commo n Pleas in tillned the 180 day rule which pro­vide that a criminal defendant be brough t to trial within 180 days after hi pre liminary hearing. If he i not brought to tria l wit hin the. peciried ti me. the pro. el:utor will be deemed to have waived his d ght to try the defendant. Many jud icia l observers believe that the I 0 day ru le has im­proved the effic ien y f the riminal Divi i n ince it s implemen tation and embodies the pirit of "a righ t to a peedy tr ial".

In a similar fashio n , the Supreme Court of the Co m monwea lt h of Pennsylvania sought t impr ve the efficiency of the ivil OUrlS in the tate. In November of 1979. hier

J ustice Michael Eagen. in Order 19 1, ordered tha t a ll civ il case be placeJ

MALPRACTICE cuntinued

dissented in Parker, felt that the Court had before it, even at that time, enough statistical evidence to in­validate t he Act. Larsen charged the majority with" .. . inexcusable, un­conscionable delay in rendering justice" and with" . . . sticking one's head in the sand to avoid difficult constitutional problems" ..

The dissent of Justice Robert s, in which J ll stice Eagen concurred, felt that in light of signi ficant ad­justments made to the Act just this past December, a further extension of time should be granted before the Court makes a final determination as to the Act's efficacy .

On October 14, 1980, the Attorney General responded to the Court's rul­ing in Matlos with the issuance of Opinion No. 80-2. The Opinion stated that the Arbitration system provided by the Act may continue to be used if all parties to a claim con­sent. I f any party objects then the claim must be transferred to the ap­propriate Common Pleas Court.

at issue and put on the Co urt ca lendar within 24J days after the filing of the original complaint. Under the old procedure, after the complai nt wa filed and a nswered, there wa an unlimited t ime allowed for d iscovery. While the a. e could be put at i ue any time, many lawyers took advan­tage of the unlimited time allow d and litigati n was permi tled t drag on for year , burdening bo th clien ts and coun e l. Under the new o rder from the Supreme C ourt which wa. impo ed in A ll eg heny ou nt y through Judge Pa padako ' Rule in Augu t , part ie to the li tigation mus t fil e with the P rothonotary " Praecipe fo r Issue" or a imi la r certificate of readine. s within 240 day. after the origi nal com plaint i~ filed, regard les ' of their read ine (or lack thereof) for tria l. W hen the ruled wa ordered in August, it . tated that al l complai nt. prior to J a nua ry 1980 had to be placed at issue b August 23. 1980 . Thb mean t that a ll action which had been pending f r many year had to. by law, be placed upon th trial ' ,lIen­dar. When many local prac t itioner complai ned abou t the suddenne . of the rule, (especia ll y since ma ny

lawyer and their staffs vacation in Augu t), Judge Papadakos extended the ti me for compl iance with the rule for 30 days. until the end of Septem­ber.

I n informal comments to Juris, Judge Papadakos aid that the Supreme Cou rt order e pec ia lly had in m ind Iho e counties in Pen nsyl­vania where there w re long backlogs of very o ld case to be tried. In Alle­gheny ount y. according to the Judge, almost 80070 of all civil com­pla in t filed are on the tria l lis t within the 240 day period. The applicat ion of the new rule will mean thai appr ximatel 600-700 cases from mo nt hs and even yea rs ago will have to be p laced at i sue r fae the anc­tion. of Ihe CUrl.

It i important for practi tio ner to remember tha t [hi 240 day rule i a rule which wa handed down from the Supreme Court of Pennsylvania to each indi idua l county in the Com­monwealth and whi h i adminbtered differently in each co unty, so tho e involved in acti ve civil litigation hou ld be cautiou about the pro­

cedure in o ther counties.

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