The Duquesne University School of Law News Magazine

Juris Magazine

Wiretapping, Data Storage,

and E-Discovery: Protecting Your Clients’ Privacy

Wiretapping, Data Storage,

and E-Discovery: Protecting Your Clients’ Privacy

Wiretapping, Data Storage,

and E-Discovery: Protecting Your Clients’ Privacy

Winter 2007

The Dean John J. Sciullo Fundamentals of Law

2

Continuing Education Series

Over the past several years, Duquesne University School of Law has offered our successful Fundamentals of Law Saturday Series. This year and for the future, we have named the series for the late Dean John J. Sciullo. Dean Sciullo was Dean of the Law School from 1982 through 1993 and continued to teach as Dean Emeritus until his death in February 2000. Dean Sciullo was a master in the classroom, concerned not just with rigorous technical learning, but also with the values and ethical judgments that form the great lawyer. Forward thinking and creative, Dean Sciullo nurtured the Duquesne University School of Law Continuing Legal Education program from the begin-ning.

This successful program will continue to provide a mix of topics, from reexamination of fundamental principles to the most cutting edge exploration of legal issues of the moment. In the spirit of Dean Sciullo, these programs will move you to reconsider the past, broaden your experi-ence, and occasionally challenge your values.

For more information about our programs, please visit our website at http://www.law.duq.edu/.

All programs listed in the series will be held in Room 203 of the Duquesne University School of Law on Saturdays from 9 a.m. to 12:15 p.m. Registration will begin at 8:30 a.m.

To register, contact Kathy Koehler at 412-396-6282 or e-mail Koehler@duq.edu.

SPRING 2007 SCHEDULE OF COURSES

*These courses have been approved by the Pennsylvania Continuing Legal Education Board for three (3) hours of substantive law, practice and procedure CLE credit, and zero (0) hours of eth-

ics, professionalism, or substance abuse CLE credit.

**These courses have been approved by the Pennsylvania Continuing Legal Education Board for two (2) hours of substantive law, practice and procedure CLE credit, and one (1) hour of ethics,

professionalism, or substance abuse CLE credit.

1 This two-hour program is being sponsored and is CLE-qualified through Coventry First.

**January 27 ContractsPresenter: Professor Alfred S. Paleaz

*February 3Constitutional LawPresenter: Professor Robert S. Barker

*February 10 Secured TransactionsPresenter: Professor Nick S. Fisfis

*February 17 Blood, Sweat & Tears, and FingerprintingPresenter: Professor Kenneth L. Hirsch

**March 24 Creating Wealth: Secondary Market for Life Insurance1

Presenter: Coventry First

The Bonehead PlayPresenter: Professor Mark D. Yochum

*April 14 Constitutional Criminal ProcedurePresenter: Professor Bruce Antkowiak

Cost: $200 per series/$150 Law Alumni Association Members$60 any one three-credit session/$50 Law Alumni Associa-tion Member$50 per each for two or more three-credit sessions/$40 Law Alumni Association Member

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TABLE ofCONTENTS

Editor-in-Chief: Jacki Mirowitz

Executive Editor: Ryan L. Dansak

Associate Editors: Salvatore Bauccio

Kelly Geer

Staff:Courtney Cole Bucci

Tim ChiappettaBeth Dodson

Andrea GoldmanKristian M. ParkerCatherine B. Pober

P. Matthew RoySarah Weissman

Jenyce Michelle Woodruff

Contributors:Professor Robert S. Barker

Assistant Dean Ella Kwisnek

Graphic Designers/Photographers:

Megan BurkeDena Galie

Faculty Advisors:Professor Ken Gormley

Assistant Prof. Kirk W. Junker

Dean of the Law SchoolDonald J. Guter

E-mail Juris at juris@duq.edu.

Letter from the Editor

Duquesne Law School Overcomes Small Budget to Get Stellar Bar Results

Protecting Pennsylvanians’ PrivacyThe Commonwealth acts to safeguard citizens’ private information

Duquesne Law Students Choosing to ServeA look at the Navy and Marine JAG Corps

New E-Discovery RulesHow e-mail can cost your clients millions

LL.M. StudiesThe World Beyond the Fort Pitt Tunnel

Preparing for the ABA’s Sabbatical EvaluationThe Law School looks in the mirror

Wiretapping: the balance of power First-Year FrustrationsTale of a 1L

Dukes at the TopDuquesne Law School lays foundation for community leadership

Legal Ethics Forum

The Century MarkDuquesne University Law School approaching 100 years old

Journey to the Mountain Kingdom

Fresh Faces for Fall

The Toughest Job You’ll Ever Love

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JURIS MAGAZINE

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Letter from the Editor

When I first started law school, an attorney several years older than me told me that “time” would soon emerge as the most important commodity in my life. I don’t think he was referring to the “law school” definition that preparing for a 55-minute class takes three hours; or that, after studying for weeks for a final exam, I would yearn for an additional hour to finish the exam exactly to my liking. What he meant was that lawyers measure their productivity in “time” increments—namely billable hours.

Over the last three years I have become acutely aware of the value of time. No, I don’t assign “billable hours” (or some would say financial value) to emptying the dishwasher or doing laundry. Yet, I have been tempted. What I have found myself doing is assigning a value to information.

As a non-traditional student, I appreciate the technological age in which we live. Sometimes I feel like one of those Crest white-strips commercials—did I wear bellbottoms in high school? Did I listen to the Eagles when they first released Peace-ful, Easy Feeling? And most importantly, did I write my college term papers on a typewriter? Well, I am proud to say that the typewriter was electric and that I did my course work for my Master’s degree on a computer. What I am also proud to say is that I cannot imagine attending law school without my trusty laptop or practicing law without all the wonderful electronic tools available today.

Those of us who have attended law school in the last ten years tend to take this newfound information freedom for granted. We do all our research electronically, having learned to navigate Westlaw or Lexis as adeptly as we surf any Internet site. We cannot fathom searching through digests in the firm library. We casually make use of all government websites as if the De-partment of Labor or the IRS always posted their regulations or opinions online. And, we can’t believe that it took this long for the courts to allow e-filing. As members of the class of 2007, we can’t imagine how much additional time it took attor-neys to draft agreements when every change required a complete retyping of the document. Yet, the legal profession somehow existed long before Bill Gates was born.

Along with all the advantages of an electronic, information-based life comes a barrage of challenges. These challenges, if not managed professionally and intelligently, become setbacks rather than benefits. The legal profession rests its laurels on the ethical manner by which it handles information. As law students, we must exhibit our proficiency in legal ethics through the MPRE before we are admitted to the Pennsylvania Bar. Attorneys live by a Code of Professional Responsibility. The founda-tion for this need is a reliance on all types of information.

Information comes to us in all directions and for hours a day. It is our responsibility as lawyers and soon-to-be lawyers to manage this information for the benefit of clients and for the profession.

Jacki MirowitzEditor-in-ChiefJacki, a member of Law Review, holds a Master’s degree in Human Resources Management and will graduate in June 2007. She may be reached at jackimirowitz@hotmail.com.

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Duquesne Law School Overcomes Small Budget to Get Stellar Bar Results

ver the past few years, the day the Board of Bar Examiners released the results of the Pennsylvania Bar Exam has been a day of consterna-tion for Duquesne Law students and alumni. This is because over the past few years Duquesne Law has been mired by a streak of poor perfor-mance on the exam.

This year, however, things have most definitely changed. According to the July 2006 Bar Exam, Duquesne is the most improved law school in the area when it comes to overall bar passage success. Duquesne improved an astounding 12.76 percent from last year, while the average improve-ment among the Pennsylvania-area law schools was only 5.18 percent: a singular achievement for a school that only last year had its worst overall passage rate in more than twelve years.

What is even more encouraging for current Duquesne Law students is that 88.32 percent of Duquesne students taking the exam for the first time passed—an improbable 20.3 percent improvement from last July. When placed in context of the other law schools in the Pennsylvania area, that number becomes even more im-pressive. Duquesne Law finished only 2.84 percent behind Temple Law

School, which had the highest suc-cess rate for first time takers at 91.16 percent.

Duquesne’s bar passage statistics are even more impressive when com-pared to the relatively small amount of money spent per law student at Duquesne. Based on research com-piled by former dean and current professor, Nicholas Cafardi, of the nine schools in the Pennsylvania-area, Duquesne ranks eighth in spending per student. Despite this dearth of dollars for Duquesne law students, the law school was able to rank fifth in the state in the bar passage success for first-time takers.

The significance of the spending per student and success for first-time takers is even more intriguing if you look at the nine Pennsylvania-area law schools. No school other than Duquesne has more than a two-posi-tion integer between what it spends per student and how its first-time takers performed. For example, Temple had the highest passage rate for first-time takers and was third in the Pennsylvania area in spending per student. Likewise, the University of Pittsburgh, second in passage rate for first-time takers, was fourth in spending per student. Given this rela-

tion in spending per student and bar passage results, it would be interest-ing to see how well Duquesne would have faired if its spending per student was increased.

Despite this lack of funding, Vanessa Brown-Barbour, dean of academic af-fairs for the law school, believes that Duquesne gets the most out of the resources it has. Dean Brown-Bar-bour said that the attitude at the law school has improved; consequently, the performance of the students and faculty has improved. Dean Brown-Barbour further stated that, “We have the fundamentals in place to be at the top every year.”

Whether or not more money is spent on Duquesne Law Students, one thing is clear: Duquesne has cast itself into the forefront of Pennsylvania-area law schools.

CRUNCHING THE NUMBERS

THE ALL MIGHTY DOLLAR

TAKING LEMONS AND MAKING LEMONADE

Tim Chiappetta is a third-year law student at Duquesne. He is the Editor-in-Chief of the

Business Law Journal and has been active in the Student Bar Association. He may be reached at

timchiappetta@hotmail.com.

By Timothy Chiappetta

O

6 By Courtney Cole Bucci and Ryan L. Dansak

PROTECTINGPennsylvanians’

PRIVACYThe Internet has created new and abundant convenienc-es for us with just a few clicks of a mouse on the key-board. Business, more and more, is conducted over the phone or Internet, and even when it is face-to-face, the personal information that used to be kept close to the cuff is now freely divulged. Whether checking into a hos-pital for a medical procedure, or buying a toaster off of eBay, private information, which can be used for crimi-nal purposes if in the wrong hands, is disclosed without a second thought.

The personal data, if stolen, enables thieves to assume a person’s identity. Once personal information is stolen it can be used for a myriad of illegal activities, including the destruction of a person’s good credit, which can take years to rehabilitate. Conveniences that make our busy lives more manageable are now being called into ques-tion for having flimsy procedures in place to safeguard clients’ personal information.

PICKING UP THE BALL

Access to private personal information can occur accidentally

when an employee loses a laptop or flash (thumb) drive, or by

more nefarious means when a hacker breaches the Internet

security protocols of a business. The end result, however, is

the same: personal information that was supposed to remain

private or for a very limited use, becomes accessible to unde-

sirable individuals.

The Pennsylvania legislature has recently acted to reduce the

frequency of lost or stolen personal information by enacting

a new statute that creates a cause of action against businesses

that do not properly protect their clients’ personal informa-

tion.

SOME WELL KNOWN BREACHES

A recent example of a breach of personal information that

gained national notoriety came from the Department of

Veterans Affairs (“VA”). The breach occurred when a VA

employee took a computer disk containing information about

veterans home with him, and his home was subsequently

robbed. The items stolen contained the names, social security

numbers, and birthdates of veterans, and in some cases, their

spouses’ personal information, too.1

Recently, the Commerce Department (“Department”) also

announced a possible breach by admitting that more than

1,100 laptop computers have gone missing from the Depart-

ment since 2001. 2

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THE ACT DEFINED

In the wake of these breaches the Commonwealth of Penn-

sylvania enacted the new Notification of Breach of Personal

Information Act (“The Act”) .3 The Act states, in pertinent

part:

An entity that maintains, stores, or manages com-

puterized data that includes personal information

shall provide notice of any breach in the security

of the system … to any resident of this Common-

wealth whose unencrypted and unredacted person

information was or is reasonably believed to be

accessed [or] acquired by an unauthorized person. 4

The Act defines “entity” as every business maintaining com-

puterized databases of clients’ personal information. The Act

further defines a “breach” as “[t]he unauthorized access and

acquisition of computerized data that materially compromises

the security or confidentiality of personal information main-

tained by the entity as part of a database of personal informa-

tion regarding multiple individuals….” 5 Because the statute

only protects electronic databases, it is conceivable that a

business that reverted to hardcopy records would be exempt

from the requirements of the statute, even if that ledger were

stolen. 6

For there to be an actual breach, the loss or access of the per-

sonal information must cause loss or injury to a resident of the

Commonwealth. 7 There is, however, a “good faith”

1 “Personal Data on Veterans is Stolen,” Christopher Lee and Steve Vogel. The Washington Post, May 23, 2006.2 “1,100 Laptops Missing From Commerce Dept,” Alan Sipress The Washington Post, September 22, 2006; Page A03.3 73 P.S. §§ 2301–2329.4 73 P.S. § 2303(a).

5 73 P.S. § 2302.6 It is unlikely, of course, that businesses will return to ledger books to keep clients’ personal information.7 73 P.S. § 2303(a).

8

exception, which allows acquisition of personal infor-

mation by an employee or agent of the entity for the

purposes of the entity’s operations. In other words, a

breach does not occur if the personal information is not

used for a purpose other than the lawful purpose of the

entity.

“Personal information,” for purposes of The Act includes

an individual’s first name or first initial and last name in

combination with, and linked to any one or more of the

following data elements when the data elements are not

encrypted or redacted:

• Social Security number;

• Driver’s license number or a State identification

card number issued in lieu of a driver’s license;

• Financial account number, credit or debit card

number, in combination with any required security

code, access code or password that would permit

access to an individual’s financial account. 8

The Act covers all businesses which maintain, store,

or destroy records, including financial institutions and

non-profit organizations. All state agencies and political

subdivisions of the Commonwealth are also covered by

The Act.

CAUSES OF ACTION

When a breach of personal information is discovered

or reasonably believed to have occurred, the business

or state agency must give notice of the breach to its

customers. The Act provides three methods of notifica-

tion: (1) by written notification, (2) telephone, or (3)

by email. Notification by email is only allowable if a

previous business relationship exists and there is a valid

email address for the business or entity. 9 There is also

a provision for substitute notice if certain conditions are

met, such as when the class of people being notified ex-

ceeds 175,000. Notice must be “made without reason-

able delay,” and, when there are more than 1,000 people

involved, notice must also be given to all consumer

reporting agencies.10 Failure to comply with The Act is

a violation of the Unfair Trade Practices and Consumer

Protection Law. As such, there is no private right of ac-

tion for violation of The Act. The Office of the Attorney

General maintains exclusive authority to bring an action

seeking sanctions against entities that violate the statute.

Compliance with the statute’s reporting requirements

eliminates the Attorney General’s cause of action against

the entity.

SOME OTHER NON-STATUTORY

CONSIDERATIONS

There is some concern, however, that compliance with

The Act will expose entities in the Commonwealth

8 73 P.S. § 2302. 9 Id. 10 73 P.S. §2305.

9

to negligence suits by the individuals whose informa-

tion has been lost or stolen. While compliance with the

statute protects entities from the Office of the Attorney

General, compliance might also be seen as a sort of ad-

mission of negligence by the business, thereby encourag-

ing civil litigation from those individuals whose personal

information has been lost or stolen.

In response to this concern, some businesses in the

Commonwealth have adopted policies that act proac-

tively by offering free credit monitoring to the individu-

als whose information has been lost or stolen.

Additionally, businesses are revamping their in-house

policies for how personal information is handled by their

employees. A proposed change to one Pittsburgh non-

profit’s house policy reads:

Courtney Cole Bucci is a native of Richmond, Va., and she

graduated from the University of Virginia in 2000. She hopes to

have a career in politics one day.

Ryan L. Dansak is a native of the Pittsburgh area. He hopes

to pursue a career in healthcare law. He can be contacted at

ryandansak@gmail.com.

To mitigate the opportunity for the loss or misappro-

priation of clients’ private information, no unredacted

or unencrypted information shall be stored on laptop

computers, zip disks, flash (thumb) drives, floppy disks,

or any other type of portable mass storage devices. All

clients’ information for billing, reporting, or for any

other reason for which clients’ names are paired with

their personal information, shall be stored only on

computers located inside the company.

Time will tell what effect this new law may have on

entities doing business within the Commonwealth. The

Notification of Breach of Personal Information Act was

signed into law in late 2005, and took effect June 20,

2006.

A look at the Navy and Marine JAG Corps

By Ensign Guy L. Reschenthaler JAGC, USNR, and Second Lieutenant Will Schmitt, USMCR

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Duquesne Law Students Choosing to Serve

With four students in the graduating 2007 class joining the military and with the recent estab-lishment of the Military Law Society (“MLS”), Duquesne University School of Law is becoming a hotbed for Judge Advocate General (“JAG”) ac-cession under Retired Rear Admiral and Dean of Duquesne University’s School of Law Donald Guter.

AT T R AC T I O N T O T H E J AG C O R P S The choice to practice law and the choice to serve one’s country are decisions that require passion, discipline, and dedication. Several students at Duquesne University School of Law are choosing to pursue both endeavors. The graduating classof 2007, so far, has four studentsentering service in the United States Military. Tracy Hoffman(Navy), Heather Momose (Air Force), Guy Reschenthaler (Navy), and Will Schmitt (Marine Corps)have each been selected for amilitary commission.

Regardless of the branch of service, the JAG Corps has many benefits. Unlike some positions available to recent graduates, the JAG Corps offers young attorneys the op-portunity to gain courtroom experience within months of passing the bar exam.

Officers are also expected to fulfill duties such as drafting wills, powers of attorney, resolving landlord–ten-

Tracy Hoffman (Navy), Guy Reschenthaler (Navy), Heather Momose (Air Force), and Will Schmitt (Marine Corps) at the December 2006 swearing in ceremony.

Duquesne Law Students Choosing to Serve

11

ant disputes, child-custody issues, and handling other legal needs of the men and women in the military. Along with the opportunity to gain experience in various areas of the law, many attorneys are attracted to the opportu-nity to earn LL.M.s, M.B.A.s, and Master’s Degrees from War Colleges. Most importantly, attorneys can take pride in knowing that they are serving their nation while at the same time advancing their legal careers.

N AV Y J AG C O R P SThere are several ways to enter the Navy JAG Corps. Most officers join through the Student Program that al-lows students to apply for accession after their first year of law school. Law school graduates join the JAG Corps through Direct Appointment. All candidates interview with a current officer, usually a captain. If selected for commission, an accession must pass a bar exam from one of the fifty states.

After taking the bar exam, accessions attend Officer Induction School (“OIS”). OIS is a six-week program in Newport, RI, aimed at preparing law school graduates and other professionals for leadership roles in the U.S. Navy. In addition to courses in leadership, training on how to control flooding on a damaged vessel, and lessons on naval strategy, students also perform military drills and exercises.

After OIS, JAG officers are sent to Naval Justice School (“NJS”). This school, also in Newport, is a nine-week program that teaches students about military justice and other aspects of law important to service in the Navy and Marine Corps. After graduating from NJS, officers are given their first assignments, usually at a Naval or Re-gional Legal Service Office.

T H E M A R I N E SThe United States Marine Corps offers several programs for candidates to become officers of the Marines. For lawyers, the primary route is through a ten-week program called the Platoon Leaders Course. In accordance with their creed “Every Marine is a Rifleman,” the Marine Corps believes in training all officers to the same

basic level of marksmanship, whether they be lawyers, pilots, or ground officers.

In Quantico, Va., all officer candidates are put through a “boot camp for officers,” a rigorous physical and mental training to see if they have the leadership potential nec-essary for all Marine Corps Officers. Following success-ful completion of this program, the candidates receive their commissions as Second Lieutenants in the United States Marine Corps.

Upon completion of law school and passing of the bar exam, every officer attends a six-month course in Quan-tico known as “The Basic School.” There, officers are trained to be basic infantry officers. Leadership skills are developed and refined to ensure that every officer is ca-pable of leading Marines. Following completion of “The Basic School” program, officers attend schools within their individual disciplines.

Will Schmitt (Marine Corps) propells himself up the rope climb.

12

T H E M I L I TA RY L AW S O C I E T YBecause of the increased interest in the JAG Corps within Duquesne’s Law School, Reschenthaler, Schmitt, Hoffman, and Momose established the Military Law Society (“MLS”) this year. After gaining faculty approval, the MLS is now an official law school organization with eighteen active members and Dean Guter as the advisor.

Founded to promote scholarly discussion of military law and to build ties between interested students and the military law community, the MLS has already scheduled several events.

JAG officers attend Naval Justice School in Newport, RI—the same school the Navy JAG officers attend. Following the successful completion of coursework at the Naval Justice School, officers receive their first duty assignments.

Dean Guter spoke late in the fall semester about his experiences in the JAG Corps. In the spring the group plans on hosting the Court of Appeals for the Armed Forces on March 15, 2007, and the Court of Claims for Veteran Appeals on March 20, 2007. Given the close ties to the military, the MLS hopes to promote the ongoing issues in military law today.

Second Lieutenant Will Schmitt, USMCR and Ensign Guy L. Reschenthaler, JAGC, USNR

Will Schmitt (Marine Corps) takes a quick swig from his canteen.

“For me, I always wanted to do two things: practice law and join the military. The Navy offers me the chance to do both. I feel very fortunate to have been selected for a commission in the U.S. Navy JAG Corps. The opportunities and benefits of a JAG Corps career are vast; however, it is the chance to fulfill my dream of serving my country as an attorney that is the true honor and privilege.”

— Ensign Guy L. Reschenthaler, JAGC, USNR

13

December 7, 2006 Dean Guter gives the oath of office to third-year students Tracy Hoffman and Guy Reschenthaler, who were joined by Ensign Sarah Cottrill. Ms. Hoffman and Mr. Reschenthaler were both accepted into the U.S Navy JAG Corps in the spring of 2006. It is very rare for the JAG Corps to select two students from the same school.

Duquesne Law Students Choosing to Serve

Dean Guter swears in Ensign Sarah Cottrill, Tracy Hoff-man, and Guy Reschenthaler

“I chose the JAG Corps for the excellent opportunities it offers me, both personally and professionally. Rather than being forced into a back room to research one specific legal issue for the lawyer’s first few years, a JAG officer receives immediate experience in many areas. I specifically chose the Marine Corps because it provides an excellent opportunity to serve my country within one of the finest organizations in the world. I am not treated as a lawyer in the Marines; rather, I am a Marine Corps officer who serves as a lawyer.”

— Second Lieutenant Will Schmitt, USMCR

ince their inception, the discovery provisions of the Federal Rules of Civil Procedure have treated electronically stored in-formation the same as other traditionally discoverable docu-ments, making no distinction between files found on a hard drive and those found in a filing cabinet. However, as elec-tronic documents are inherently different than tangible docu-ments, both judges and litigants alike have been struggling to apply the discovery Rules to the production of electronic doc-uments. The production of electronic documents throughout the discovery phase of litigation is known as “e-discovery,” and has been an ongoing thorn in the side of the judiciary for years.

The biggest problem-causing differ-

ence between electronic documenta-

tion and paper documentation is the

fact that electronic data can be stored

at an exponentially greater vol-

ume than hardcopy data.

While it would neces-

sitate a large warehouse

to store over 500 billion

pages of paper documenta-

tion, with the advent of “back-up

tapes,” businesses can store hundreds of

billions of pages of electronic text in a

single “storage closet.” It is important

for businesses to maintain this sort of

documentation because the willful

or negligent loss of relevant

evidence during or in antici-

pation of litigation is known

as spoliation, and carries with

it severe penal and civil penalties.

While convenient for storage purposes,

however, backup tapes pose a huge dis-

“The

production

of electronic docu-

ments throughout

the discovery phase of

litigation is known as “e-

discovery,” and has been an

ongoing thorn in

the side of the judi-

ciary for years.”

New E-Discovery RulesNew E-Discovery Rules New E-Discovery Rules New E-Discovery Rules

14

STORING DATA

S

How e-mail can cost your clients millions

By Salvatore Bauccio

New E-Discovery Rules

15

The seminal case for determining the du-

ties and obligations of parties involved

with electronic data storage and pro-

duction is Zubulake v. UBS Warburg, LLC.1

While Zubulake concerned a simple em-

ployment discrimination claim, much of

the case centered on a single discovery

dispute. UBS refused to answer a discov-

ery request made by Zubulake, as it would

have cost UBS approximately $300,000

to locate the back-up tape that housed

the requested data, and then restore, re-

view, and produce the relevant portions.

In determining the issue, the court

found that while responding parties

have a duty to produce all materials

likely to lead to the admissibility of rel-

evant evidence, courts have discretion

to limit discovery that is “unduly cost-

ly and burdensome” by forcing the re-

questing party to bear a portion of the

cost of production. However, the court

also held that responding parties are

required to “front” the costs of produc-

tion, no matter how unreasonably costly

and burdensome a request is, and then it

THE HIGH COST OF DISCOVERY

1 Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003).

New E-Discovery Rules New E-Discovery Rules

advantage to litigants as they are not

structured to allow for the organized

retrieval of data. Instead, back-

up tapes must be restored onto

a hard drive then reformatted

before they can be searched.

This is where voluminous stor-

age becomes problematic. Rule

26(b)(1) requires parties to dis-

close all information likely to lead

to the admissibility of relevant evidence

during the discovery phase of trial; yet

it can be extremely costly and time con-

suming to sift through a number of back

up tapes that contain more than 500 bil-

lion pages of electronic data. Produc-

ing electronic data from a backup

tape typically takes five days and

can cost hundreds of thousands of

dollars. To further aggravate this

process, because the production

of electronic data poses a sub-

stantial r isk of the inadvertent

waiver of both the attorney–client and

work-product privileges, responding

parties must hire attorneys to review

all electronic data before it is produced.

16

CODIFYING ZUBULAKE

Most importantly, amended Rule

26(b)(1) codifies Zubulake by requiring

requesting parties to absorb the costs of

unduly costly or burdensome requests.

The statute, however, goes a step fur-

ther by eliminating the need for the

responding party to front the costs of

production, and puts the burden on the

requesting party to show “good cause”

for production once the responding

party has identified a discovery request

as being unreasonably costly or burden-

some. This revision should eliminate the

incentive for parties to make unreasonable

discovery requests in hopes of influencing

a large settlement. Not only will respond-

ing parties no longer be required to bear

unduly costly production upfront, the bur-

den will be on the requesting party to show

“good cause” for requiring production.

is their burden to move for cost shifting.

Despite the holding in Zubulake, parties

were still free to submit unreasonable

discovery requests, putting the burden

on the responding party to shift costs.

And with e-discovery leaving compa-

nies with costs ranging between six

and seven figures, it does not take a

law degree to understand that the cur-

rent system provides plaintiffs with an

opportunity to leverage hefty settle-

ments with intrusive discovery requests.

To solve this problem, the Civil Rules

Advisory Committee drafted a series

of amendments designed to address the

differences between

e-discovery and tra-

ditional discovery. The

amendments have since been approved

by both Congress and the United States

Supreme Court, and went into effect on

December 1, 2006. Because the amend-

ments make significant modifications to

the Rules, attorneys must be sentient.

Not only will such cognizance allow them

to take advantage of the strategic benefits

that the amendments may bestow, but also

it will allow them to conform with the

new procedures in order to avoid signifi-

cant monetary sanctions to their clients.

New E-Discovery Rules New E-Discovery Rules New E-Discovery Rules

17

The amendments also provide respond-

ing parties with several other less costly

options. Amended Rule 26(b)(5) allows

responding parties to assert any privi-

leges after protected electronic data is

inadvertently disseminated. This will al-

low parties to cut down on burdensome

CLEANING HOUSE

Salvatore Bauccio is a third-year student at Duquesne University School of Law. He is the Associate Editor and contributor to Duquesne Law Review. He is also a member of the Tax Moot Court team. Sal has focused his legal education on litigation and legal procedure and can be reached at bauccios@gmail.com.

and time-consuming document review by

reducing the marginal benefit associat-

ed with thorough document appraisal—

again, reducing the likelihood of encour-

aging settlement based not on the merits

of the suit but on the costs of e-discovery.

Further, amended Rule 37(f) insulates a

responding party for failing to preserve

relevant electronic data if the data was

lost during the routine, good-faith

maintenance of the system that encased

the data. In drafting the amendments,

the Committee recognized that com-

puter systems are commonly designed

to replace old data with new data in

order to keep costs down and preserve

space. The purpose of the proposal was

to therefore encourage the use of this

practice in order to keep costs low for

businesses.

Whether a private practitioner or a

mega-firm corporate lawyer, every at-

torney must become familiar with the

2006 amendments to the Federal Rules

of Civil Procedure. E-mail is chang-

ing the way trials are won and lost,

and those in the legal profession must

be aware of these changes in order to

avoid antiquation. An e-mail may be

the center of any legal dispute. It can

show a decedent’s intent to modify his

will, act as the exclusive evidence of an

alleged contract, or accept an offer to

merge two billion-dollar corporations.

The 2006 amendments provide litigants

with codified procedures for preserv-

ing, requesting, and producing this

electronic evidence. As litigants com-

municate and store information by the

use of electronic means, both counsel

and client alike must have a thorough

understanding of these procedures.

New E-Discovery Rules New E-Discovery Rules New E-Discovery Rules

18

The Duquesne University School of Law recog-nizes two important truisms: that the practice of law has become increasingly global in nature, and that the study of a foreign legal system helps foster a better understanding of one’s native legal system. To help prepare its students to operate in this new global legal community, Duquesne Law School provides opportunities for post-graduation LL.M. studies on campus and around the world.

The LL.M. (Master of Laws) is an internation-ally recognized postgraduate law degree, typically requiring one year of study, usually culminating with a thesis on a topic of the student’s choice. The Master of Laws degree is geared toward those who seek expertise in a specialized area of the law. Typi-cal LL.M. degrees offered in the United States are in areas such as taxation, comparative law, interna-tional law, and environmental law.

American lawyers participating in an LL.M. pro-gram abroad, in addition to studying typical LL.M. topics, receive an in-depth introduction to the legal system of the country of choice. Likewise, many American law schools, including Duquesne’s, cur-rently offer foreign students an opportunity to gain an in-depth introduction to the U.S. legal system through LL.M. programs in the United States.

THE GENESIS OF THE PROGRAMFor nearly seven years, Duquesne’s law students and faculty have visited and received visits from counterparts from the University of Cologne faculty of law in Germany. In May of 2000, then–Dean of the Duquesne University School of Law, Nicholas P. Cafardi, and professors Robert D. Taylor, and Kirk W. Junker visited the law faculty of the Univer-sity of Cologne. Subsequent to their meeting, Dean Peter J. Tettinger of the Law Faculty of Cologne and Dean Cafardi signed an agreement for an exchange between the two law schools. On May 4, 2001, University of Cologne Rector Jens Peter Meincke visited then–University President John E. Murray Jr., to sign an agreement designed to foster edu-cational, professional, and cultural exchanges between the universities’ faculty and students.

REAPING THE BENEFITSDuring the 2005-06 academic year Dorothee Kaulen, from the Law School of the University of Cologne, completed Duq-uesne’s international LL.M. program. While at Duquesne, Ms.Kaulen completed 27credits, including coursework in contracts, constitutional law, criminal law, legal writing, and legal pro-cess and procedure. Her work at Duquesne culminated with a thesis on the recognition of corporations under the Treaty of Friendship, Commerce, and Navigation between the United States and Germany. She successfully defended her thesis this past July, earning Duquesne’s first LL.M. degree. She also took part in Duquesne’s commencement exercises, complete with cap and gown, a ritual for which there is no counterpart at the University of Cologne.

Ms. Kaulen, whose aunt is a judge, always dreamed of be-coming a judge in Germany. Her law school focus in Germa-

LL.M.StudiesThe World Beyond the Fort Pitt Tunnel

Dorothee Kaulen

By Philippe Matthew Roy

19

ny has been international private law (choice of laws), as well as compara-tive law. Realizing the increased global dimensions of legal practice, Ms. Kaulen seized upon the opportunity to study in the United States, and rec-ommends participating in an LL.M. program abroad. “My main focus was to get to know another legal system: that means getting to know your own system better because you see differ-ences, and you inevitably contrast and compare the two,” Ms. Kaulen says.

ACADEMICS AND CULTURE COLLIDE Beyond the academic and career en-richment inherent with study abroad, Ms. Kaulen emphasizes the cultural and personal development aspects. “I had a very intense cultural experi-ence. Since I was the only German at Duquesne, I was, in a sense, forced to delve right into American culture. I celebrated Thanksgiving, Halloween, St. Patrick’s Day, and got to see the Steelers win a Super Bowl,” she says.

The cultural aspect, she maintains, is a necessary corollary to the legal study. “How can one understand the legal system and culture without at least some understanding of the people, language and traditions of the country, and what better way than to be there in person,” says Ms. Kaulen.

DUQUESNE’S FACULTYAND STUDENTSMs. Kaulen also has plenty of praise for the law school at Duquesne. “I was particularly impressed with the open-door policy of the professors at Duquesne. This is a bit different from

Germany because the law school inCologne is much larger. Professors and fellow students at Duquesne were always available to answer any ques-tions I had, definitely easing my transi-tion into studying the common law in English,” she says. This year, Duquesne has welcomed two new LL.M. stu-dents. Ms. Dubravka Nežic of Croa-tia is a day division LL.M. student, and Mr. Rafael F. Torres Antonioli of Paraguay, is an evening division LL.M. student.

Duquesne law students, past and present, are also taking advantage of year-long foreign LL.M. programs. Kristine Behm (L’06) was guided by Duquesne University School of Law adjunct professor Patrick Sorek to the Vrije Universiteit Brussel (Free University of Brussels), where she is pursuing an LL.M. in an English-lan-guage program for foreign students. Melissa Ruggiero (L’03) is currently pursing an LL.M. in international hu-man rights and criminal justice law at Queens University in Belfast, North-ern Ireland, and the National Univer-sity of Ireland in Galway, Republic of Ireland.

Third-year (3D) law student Matt Christensen, who already participated in a summer legal studies program at the Chinese University of Political Science and Law (CUPL) in Beijing in 2005, will return to Beijing in October 2007 as a student in CUPL’s LL.M. Program in Chinese and Com-parative Law. In preparation for study in China, Matt has been working with Professor Liu, who has helped develop the school’s contacts with the CUPL,

*************************Philippe Matthew Roy is currently a third-year (3D) law student at Duquesne. He will participate in the LL.M. program at the University of Cologne in 2007, for which he cred-its, in good measure, the engaged guidance and eager support of Profes-sors Junker and Barker. Comments should be directed to juris@duq.edu.

and received a visit at Duquesne in October from CUPL’s Vice President Professor Yong Zhu.

Having enjoyed the six-week summer program in Beijing, Mr. Christensen would now like to further enhance his knowledge of the Chinese legal system by studying for a full year. “The six week summer program was a great introduction into the system of law developing in China, but in order to really understand Chinese law, its people, culture, and boom-ing economy, I think it is necessary to pursue a more in-depth cour se o f s tudy; the LL.M. program seems ideal,” he says.

In addition to LL.M. opportunities in Europe and China, the Duquesne University School of Law has a work-ing relationship with the Universi-dad Nacional de Cuyo in Argentina, and Professor Barker is currently in discussions with universities in the Dominican Republic.

Any students interested in pursu-ing an LL.M. abroad should contact Professor Junker at junker@duq.edu; Professor Liu at liu@duq.edu; or Professor Barker at barker@duq.edu.

Preparing for the ABA’s Sabbatical Evaluation

By Ryan L. Dansak

very seventh year the American Bar Association

(“ABA”) conducts site evaluations—otherwise know as

“sabbatical evaluations”—of fully approved law schools.

The main purpose of the evaluations is to determine

whether law schools comply with the ABA standards for

the approval of law schools. A determination of com-

pliance with the ABA standards results in a law school

continuing to be classified as an ABA fully approved law

school. The Duquesne University School of Law’s onsite

evaluation is scheduled for March of 2007.

Part of the approval and accreditation process requires the

Law School to undertake a self-study to determine wheth-

er the Law School is in compliance with ABA standards.

The self-study includes a determination by the Law

JURIS: Are there any steps or mea-sures the faculty has taken in prepa-ration for the upcoming review by the ABA?

DEAN GUTER: The primary activ-ity is the process of involving the entire faculty and staff (with input from the students and alumni, and members of the bar, bench, and community) in a self study to iden-tify strengths of the law school and any areas that we believe could be improved. This is intended to be a

candid assessment that represents the consensus opinion of the faculty. This process is guided by a self-study committee of the faculty chaired by Professor McClendon. Other members (of the committee) are Professors Yochum and Spyke, and Associate Dean Browne-Barbour. The report of the last site visit is evalu-ated to determine whether we have made any necessary adjustments that might have been noted therein.

JURIS: What were the results of the

E

20

Law School’s self-evaluation? From a student’s prospective, we have no-ticed that an individual has been hired to oversee the bar review/prepara-tion classes. Did that hire come from the self-evaluation? Were there other measures taken?

DEAN GUTER: The self study is ongoing. Drafting of the study report continues on a daily basis with meet-ings of the committee twice a week and special full–faculty self-study meetings approximately every two

The Law School looks in the mirror

School of its strengths and weaknesses. After determining

its strengths and weaknesses the faculty creates a strategy

to continue improving upon its strengths, and to correct

any weaknesses identified by the self-study.

While the ABA accreditation process is relatively trans-

parent, law students at Duquesne still have a limited

understanding of the process. Some may even fear that

Duquesne Law School’s accreditation could be in danger

of revocation. The following is an e-mail exchange be-

tween Juris and the Dean of Duquesne University’s School

of Law, Donald Guter. The exchange is intended to clarify

the self-study and sabbatical evaluations mandated by the

ABA, and the steps the Law School is taking to assure its

continued good standing.

21

weeks. The Director of Bar Services position was created and filled as a result of a faculty determination that the results of the summer 2005 bar examination were unaccept-able. The faculty concluded that such a person could help us in the future. That decision was made out-side of the self-study process and demonstrates that the Law School will not delay in making improve-ments. A similar determination was made with respect to the need to improve the Law School’s writing program. We are now interviewing to fill a newly structured position of Director of Legal and Research and Writing. These decisions, al-though made outside the self-study process, will be reflected in the self-study report.

JURIS: Was/is there ever any concern that Duquesne University’s School of Law’s ABA accreditation was/is in danger of revocation? If so, why? If not, why?

DEAN GUTER: I believe the Duquesne Law School program is strong and vibrant, and that we will be granted re-accreditation. The faculty is very engaged, on a con-tinuous basis, in evaluating every aspect of the operation of

the Law School and its programs, and in making appropriate recom-mendations for improvement when needed. This is the strength of the concept of faculty governance that is mandated by the ABA.

JURIS: What, if anything, will students of the Law School notice during the accreditation review process? For example, will there be ABA observers in the classrooms?

DEAN GUTER: First, [we had] a visit from the site team leader. He was here to get an overall sense of the school. The entire team will visit on March 11–14, 2007. The students will be exposed to the visi-tors and will have an opportunity to contribute to this process. The ABA site team may sit in on classes if they choose to do so.

JURIS: In your opinion, what is the general sense among the faculty about the ABA accreditation pro-cess? In other words, are professors nervous about the scrutiny? Confi-dent that their teaching abilities and teaching content exceed the mini-mum requirements? Etc.

DEAN GUTER: My general sense is that the faculty sees the process

as a more formal opportunity to take a step back from the day-to-day operations of the school and the incremental, ongoing improve-ments that I have already mentioned to reflect on the overall health of the Law School. This is a chance to evaluate the effectiveness of changes that have been made in the past and to move forward with a re-newed consensus about the overall direction of the school.

JURIS: Is there anything else our readers would be interested in, which we haven’t touched upon?

DEAN GUTER: I would like to reemphasize that this is an oppor-tunity for everyone to contribute to the improvement of our school. Both the process and the results of the self study are valuable tools toward that end.

More information about the ABA’s standards can be found at: www.abanet.org/legaled/standards/standards.html. Questions about Duquesne University’s School of Law’s self evaluation can be directed to the chair of the Self-Study Committee, Associate Professor Kellen McClendon at mcclendon@duq.edu.

Ryan L. Dansak is anative of the Pittsburgh area. He hopes to pursue a career in healthcare law. He can be contacted at ryandansak@gmail.com.

1 The Steel Seizure case (Youngstown Sheet and Tube Co. v. Sawyer, 343 US 579 (1952)) involved a constitutional controversy surrounding Presi-dent Truman’s decision to seize the nation’s steel mills during the Korean War to avoid shutting down the mills due to a wage dispute. Truman believed that a strike would impair the production of materials needed to sustain the war effort, so he took control of the mills. Truman’s seizure prompted a lawsuit by steel company owners attempting to get their property back. When the case was before the Supreme Court of the United States, the decision was 6-3 that Truman did not have the authority to seize the mills, in spite of his claim that the war in Korea required his exercise of emergency powers.

t the SJC hearing Gormley summarized the major Consti-tutional problems inherent in the Bush Administration’s secret surveillance program, while acknowledging that the program, “flows from a good faith effort to wage a crucial war on terror,” he said.

In his testimony, Gormley reminded the Judiciary of the Steel Seizure Case,1 and addressed Justice Jackson’s concurring opin-ion regarding presidential power. He reiterated Justice Jackson’s concept that: “Presidential power is at its high point in the ‘the-ater of war,’ abroad…. It’s at its ‘lowest ebb’ on American turf, especially when the president has acted without Constitutional or Congressional support,” Gormley said. Applying this prec-edent to the Bush administration’s secret surveillance program,

22

On February 28, 2006, Ken Gormley, a professor of Constitutional Law at Duquesne Uni-versity School of Law, testified before the Senate Judiciary Committee (“SJC”) concerning the Bush Administration wiretaps and the scope of presidential power.

A Gormley identified the following four problems in his testimony before the SJC:

First, nothing in the text of the Constitution specifically gives the President the power to conduct such secret, warrantless surveillance on the domestic front, even during times of emergency. Second, the administration’s program bypasses a specific act of Congress, which established the FISA (Foreign Intelligence Surveillance Act) court and sets forth detailed procedures for conducting surveillance of precisely this sort, involving citizens and residents of the United States. Third, the President’s power is even further diminished because the Bush ad-ministration program directly collides with rights of American persons under the Bill of Rights, specifically, the Fourth Amendment. This col-lision puts the President’s power (potentially) at an even lower point than that of President Truman in the Steel Seizure case. Fourth, if one adapts, Justice Jackson’s Steel Seizure test and applies it to Congress, one discovers that Congress—unlike the President—is at its zenith in exercising powers in this terrain.

Gormley further explained Congress’ power to establish inferior courts as well as define the jurisdiction of those courts under Ar-ticle I, Section 8, Clause 9 of the Constitution. Congress utilized

WIRETAPPING:

By Kelly Geer

THEbalanceOFPOWER

“FIRST nothing in the text of the Constitution specifically gives the President the power to conduct such secret, warrantless surveillance on the domestic front, even during times of emergency.”

this power when it set up the FISA court. Additionally, it is Congress that has the power to enact laws that adhere to the Fourth Amendment, as well as other provisions of the Bill of Rights. Congress has used this power since the 1960s by passing detailed wiretap statutes.

To respect the doctrine of separation of powers, Gormley cautioned that the President must seek Congressional sup-port through the FISA proceedings consistent with the Con-stitutional framework, and while preserving and protecting the Bill of Rights.

Gormley provided suggestions to the Judiciary Committee to give the President the tools he needs to fight the war on terror, while still making sure that no Constitutional short-cuts are taken. Gormley testified:

First, the existing FISA Statute should be used as a starting point. It works. It’s been in place for 28 years. It should be adapted to deal with new forms of technology—that much is correct. But the statute has been tested and it’s the best frame-work for any new legislation. Second, a mechanism has to be created for judicial review. Congressional oversight is important, and I’ve proposed a detailed form of such oversight. But any secret surveillance program that makes it impossible to test the constitutionality of that program in the courts will violate the separation of powers doctrine as well as the Fourth Amendment. ‘Probable cause’ by definition includes the participation of neutral, detached judges. The key factor is to include the FISA court in the process, so that judicial review takes place, albeit in a highly-secure fashion. Third, a mechanism must be created to allow standing for aggrieved parties, so that a valid “case or controversy” can be created in the courts.

Currently, several bills concerning wiretapping are pend-ing in the House and Senate. Sen. Arlen Specter (R-Pa.) is co-sponsoring two bills: the Specter-Cheney, which is en-

Kelly Geer will be graduating from Duquesne University Law School in June. She currently works in the legal depart-ment of Duquesne Light Company and is a member of the Corporate Law Society and Women’s Law Association. She can be reached at geer@duq.edu

23

dorsed by the White House, and the Feinstein-Specter, which is endorsed by Senator Lindsey O. Graham (R-S.C.), who is on the Senate Judiciary Committee. The Feinstein-Specter bill proposes to make revisions to the existing FISA statute and allow pro-gram-based warrants. This bill is one of the only bipartisan bills.

In a recent interview, Gormley noted: “[B]ipartisan support is a good sign that this is not breaking into a political issue; people on both sides of the political aisle want the court involved.” Gorm-ley’s biggest concern is that courts remain involved, and hopes that with bipartisan support that will occur.

As Juris was going to press, the Bush Administration announced that it would amend its stance and endorse a program by which secret NSA wire-taps would be channeled through the FISA court, thus permitting deter-minations of probable cause to be made by the judicial branch, consistent with Professor Gormley’s testimony before the Senate Judiciary Committee.

“FIRST nothing in the text of the Constitution specifically gives the President the power to conduct such secret, warrantless surveillance on the domestic front, even during times of emergency.”

Photo courtesy of U.S. Senate Judiciary Committee

FIRST YEAR FRUSTRATIONS

By Sarah Weissman

The air conditioning was on full blast. It wasn’t particularly hot

outside, but the crisp air was the only thing keeping me awake as

I sped down the Boulevard of the Allies, under the Duquesne Arc,

and onto campus. I never thought anything could be more ex-

hausting than the twelve weeks following the birth of my son, but

the first year of law school introduced me to a Sisyphean exhaus-

tion.

It was not yet 8 a.m. and I was already lamenting the nap I would

have taken two hours later when I normally put my newborn son

down—before I started law school. That day, instead of a nap, I

would be in Contracts class. Law school meant rising early each

morning and staying up late each night, and I had a sinking feeling

that my routine was going to be suddenly, inexorably changed.

24

Tale of a 1L

I had mastered waking up two times in the middle of

the night to feed the baby—a routine I could do half

asleep. Law school chores, though, were different. To

sit through class, to retain what I read meant focusing

my full concentration, even when all I wanted to do

was sleep. I forced myself to stay up each night reading

and briefing for class, but I wanted time before class

to read and brief more. That meant getting to school

extra early.

As the end of my first semester as a law student at

Duquesne drew near, I began acclimating to the fa-

tigue, and I have even compiled a short list of truisms

from my short time as a law student.

TRUISM # 1The first truism is that the first-year law student is

like a dog chasing its tail: there is always more work

to do and no matter how thoroughly you try to do it,

you can never quite go fast enough or bend enough to

catch the tail.

TRUISM # 2The second truism I learned was in the beginning

weeks of law school and learned thanks, in large part,

to Hanley Hall’s architect and the lack of natural light

in the law school: Smoking is not the best way to get

some fresh air.

Even if I could get myself addicted, there must be bet-

ter ways to see the outside world than through a haze

of nicotine-laden smoke. Now, the only time I see

the light of day is on the walk from the garage into the

first-year abyss and back out to my car at dusk.

There are surprisingly few windows in the first-year

classrooms at Duquesne’s Law School. Sometimes I

wonder if the school hired a casino architect to design

Hanley Hall. Just as gamblers aren’t afforded a view of

the sunny outdoors so they can focus on gambling, so

are law students denied the luxury of daydreaming out

a window so they can focus on the lecture.

TRUISM # 3The days seem to blend one into the other. There is just

not enough time in the day to fit in the laundry list of

things I need to do, let alone the things I want to do.

There is an upside to all of stress and exhaustion of the

first year of law school, and it constitutes the third tru-

ism: As I forget about regularly scheduled meals and as

daylight disappears, so do the pounds! Living with my

head buried deep in law books is great for my waist-

line. The first year of law school is the most expensive

diet I have ever tried.

I’m told that the boulder I push up the mountain every

day will never stay at the top. I hope, though, that as I

develop analytical thinking, reading, and writing skills,

that the boulder will, at least, get a bit lighter.

25

Sarah Weissman is a first-year law student interested in intellectual property/trademark infringement. Comments can be sent to weissmans@duq.edu.

Judge Kim Berkeley Clark (’83), president of the ACBA, stated that a large part of her leadership abilities comes from the relationships she formed while at Duquesne. “I developed long lasting rela-tionships with many people, and the contact with these people continues to be, for me, a source of information, advice, help and support,” she says. Judge Clark also applauds the community-ori-ented approach the law school takes in educating tomorrow’s lawyers, “The law school demonstrates a commitment to its students, the legal community, and the community at large.”

Judge Clark specifically admires the significant contribution the school makes to community-based legal programs. “The law school supports the pro se motions project and juvenile court with student intern attorneys, who provide a valuable service to the court and who get the benefit of actual legal work.” To Judge Clark, this commitment to sup-porting community programs while also giving stu-dents an opportunity to experience real legal work breeds a more organized, hard-working student with an eye toward being a leader in the commu-nity.

It has been said that great leaders are not taught to be so, but that they are simply born that way. Duquesne Law School defies that old adage, and has the proof to back it up. The presidents of both the Allegheny County Bar Association (“ACBA”) and the Pennsylvania Bar Association (“PBA”) are Duquesne Law School graduates. Both share in praising their alma mater.

Dukes at the Top

Duquesne Law School lays foundation for community leadership

By Tim Chiappetta

Judge Kim Berkeley Clark (‘83)

26

Dukes at the Top

Duquesne Law School lays foundation for community leadership

Kenneth Horoho (’80), president of the PBA, echoed praise for Duquesne’s effectiveness at pro-ducing community-minded lawyers. “Duquesne trains its students to be good lawyers, but it also teaches its students how to be effective communi-cators,” he says. This is very important to Horoho, who says that to be a successful leader “you have to be able to elevate your role beyond being a lawyer.”

Horoho also lauded Duquesne for it ability to push students out of the classroom and into the working environment. “The future of the profession and the PBA rests with the young lawyers, and Duquesne does a great job of blending its students with down-town, [which],” Horoho added, and “prompts stu-dents to ascend to leadership positions at a younger age.”

Horoho is especially encouraged by the ability of Duquesne Law graduates to ascend to leadership roles early in their careers, and he encourages them to use their skill and creativity on their way to be-coming the next generation of community leaders.

Diversity was another characteristic Horoho com-mended, calling his time at Duquesne “the perfect storm.” He elaborated by saying that great people, professors, and wonderful friendships were the perfect combination for producing not only fine at-torneys, but also extraordinary leaders.

Indeed, Horoho stated that quality education, and the strong commitment to the community that Duquesne Law School graduates display makes him proud to say that he is a product of Duquesne Law School.

Regardless of whom you talk to, the professors at the law school are consistently given most of the credit for creating the environment that has pro-duced so many fine leaders.

This tradition of excellence has been perpetuated by Professor Ken Gormley, who is currently Presi-dent-Elect of the ACBA. “It is no accident that we produce a high proportion of local and statewide leaders,” says Gormley. He believes that Duquesne Law School’s motto, Salus Populi Suprema Lex, (The welfare of the people shall be the supreme law,) is taken very seriously at Duquesne, and it is most prevalent in how the professors teach their courses. “We have a long history of the school being focused on public service as a critical factor to a legal educa-tion.”

Upon seeing the success the Duquesne Law School has had in producing inspirational and effective leaders, maybe the old adage should be changed to: “Good leaders are born that way, but great ones went to Duquesne Law School.”

Tim Chiappetta is a third-year law student at Duquesne. He is the Editor-in-Chief of the Business Law Journal and has been active in the Student Bar Association. He may be reached at timchiappetta@hotmail.com.

27

Kenneth Horoho (‘80)

LEGAL ETHICS FORUMASK THE ETHICS EXPERT

Simply speaking, legal ethics can be described as the law of lawyering. The successful prac-tice of law requires knowledge of a jurisdiction’s ethical code governing the conduct of lawyers. Guiding principles regulate how a lawyer should juggle the interest in earning a living against the interests of clients, the courts, and the adversarial parties.

In a larger sense, however, legal ethics transcends the intricacies of written rules. Not unlike the notion of ethics in general, the broader concept of legal ethics encompasses a more humanistic perspective. In this sense, a discussion of legal ethics implicates moral philosophy, commonsense morality, and personal integrity.

It is these conceptions that touch the heart of legal ethics, particularly for those who believe that being a lawyer is not merely a job, but a way of life. Comment 13 to the Preamble of the 2006 American Bar Association Model Rules of Professional Conduct proclaims, “Lawyers play a vital role in the preservation of society.” The enormity of that obligation may not be realized without conscientious regard for the ethical practice of law in all its varied manifestations.

To facilitate our understanding of the ethical environment in which lawyers must dutifully operate, Professor Robert D. Taylor has agreed to open a legal ethics forum. Professor Taylor will attempt to answer questions posed to him by involved readers who may be practicing lawyers, law students, or other interested non-lawyers.

Professor Taylor contemplated the following questions posed by Juris.

28

Professor Taylor joined the Duquesne Law faculty in 1980. He earned his Bachelor of Science in Physics from the University of Pittsburgh in 1960. Three years later he received his Master of Divinity from the Pittsburgh Theological Seminary. At both institutions he received numerous awards and distinctions, including Phi Beta Kappa. He served as minister to several congregations before living and studying in Europe and Israel. In 1979, Professor Taylor received his Juris Doctorate from Duquesne University. Following graduation, he served as a consultant to a justice of the Pennsyl-vania Supreme Court.

Professor Taylor received the President’s Award for Teaching Excellence in 1992, was named the Thomas W. Henderson Distinguished Professor of Legal Ethics in 1998, and received the Eugene P. Beard Award for Leader-ship in Ethics in 2000. In addition to teaching Professional Responsibility, Professor Taylor’s instruction has been concentrated in the areas of Civil Procedure, Law and Religion, and Comparative Law.

By Catherine B. Pober

JURIS: Professor Taylor, what does the phrase “legal ethics” mean to you?

PROFESSOR TAYLOR: I find the Rules of Professional Conduct to be a necessary but insufficient feature of the contemporary practice of law. They are necessary because of many factors. The chief factor is that many in our secular-ized culture, which is hostile to the transcendent dimension of human existence, arrive at our law schools and into our profession having no clue as to moral and ethical values. This is not to blame the young; rather it is based on a recognition that our culture is more and more under the sway of relativism, subjectivism, and even nihil-ism. Since the reasons for this state of affairs are quite com-plex, a complete reflection on the root causes of our present condition cannot be set forth in the format you have requested of me. Furthermore, the rules regulating our legal profession are inadequate since the consci-entious practitioner will regard them with care, the unscrupu-lous will flaunt them. I think that they do not change these respective inclinations of care versus lack of care. We need to take a less prosecutorial stance with respect to this dichotomy and more of a therapeutic and

pastoral stance. Finally, rules are like cancer, they metastasize and result in bureaucratic fixes rather than more humane ones.

JURIS: When lawyers have consulted you regarding ethi-cal issues, in which areas have you found the most prevalent problems to exist? TAYLOR: It is usually the non-lawyer spouse who initiates the consult—not the lawyer. I have been surprised by this fact. When, however, the lawyer is finally joined in the matter, I have found that the problems (be they of many sorts) often manifest first in the marriage and simultaneously/subse-quently in the office. But to cut to the chase concerning your question: the root problem is that the lawyer fails to read the rules. The lawyers believe that they are good people and that reading the rules is, per force, unnecessary. But I inform them that the rules are not about be-ing a good person; rather they are about being a profession-ally safe attorney, i.e., one who knows and is articulate about the lawyer’s duties owing to clients, to tribunals, to other attorneys and to third parties. As a professor at a Catholic law school, I like to think of the ultimate client as the common good itself, the res publica.

JURIS: What are your general recommendations to a lawyer who is confronted with a serious ethical question?

TAYLOR: First, read the rules. Second, read the rules. Third, read the rules. Then if difficulty still remains speak with col-leagues and call the “ethics hot lines;” both national and local. Also, use the smell test regard-ing the troubling matter. If it smells bad, it probably is bad. One of my lawyer friends puts it this way: “There are no small ethical decisions.” JURIS: What ethical advice would you give to new lawyers?

TAYLOR: Again, read the rules. And in addition think of the four C’s: competence, com-munication, confidentiality, and conflict (of interests). Finally, look upon the rules as the de-pository of distilled wisdom of the reasonable and profession-ally safe-practicing lawyer.

Professor Taylor and the Juris staff encourage and welcome legal ethical questions posed by readers. Submis-sions should be sent to juris@duq.edu. Professor Taylor’s responses to your queries will be printed in the Spring 2007 issue of Juris.

Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws. — Plato

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Catherine B. Pober, a published member of Duquesne Law Review, is currently completing her final year of law school and will receive her J.D. in June 2007.

The Century Mark Duquesne University Law School approaching 100 years old By Jenyce M. Woodruff

30

the George Building. Those students underwent a very structured core class regimen, where the Law School delegated what courses would be taken ac-cording to the subjects recently tested on the bar, giving students little room for variation. The struc-tured atmosphere continued through most of the existence of the law school.

Reuben Fingold, now 101 years young, is Duquesne Law School’s oldest living graduate. He graduated Duquesne Law in 1930 after having completed his undergraduate studies in Pittsburgh. He attended class in the Canavan Building and his law professors were practicing lawyers—a common trend at most legal institutions of that time.

After Fingold’s first year of school, he took oral final exams, where he faced his entire panel of teachers and was asked questions pertaining to each class. Fingold’s class was the last to suffer through the oral examination format at the law school.

D E A N G U T E R C O M E S H O M EDean Guter, the current dean of Duquesne’s Law School, attended Duquesne Law when it was housed in Rockwell Hall—located between Shingiss Steet and Boyd Street—where he endured the difficulties and distractions that came along with the building’s location. Dean Guter complained of the awkward room configura-tions and summer months when windows were opened

Duquesne University School of Law was founded in 1911, marking 2011 as the School’s 100th-year anniversary. The institution has undergone many changes over the years that were implemented to improve the level of education offered by the law school. Some of the more recent changes at the school include restoring the law school building itself, adding bar preparation services, legal clinics, com-petitive advocacy teams, and configuring classrooms to be technologically friendly.

D U Q U E S N E L AW S C H O O L’ S PA S TThe first Dean of the Law School was Dean Joseph M. Swearingen who oversaw the 12 students who met in

The Century Mark

31

to allow air in, but that let the sound of passing cars in, too.

Beyond lousy aesthetics, Dean Guter also endured a technological rut. There was no option to take exams on laptops, nor, for that matter, were there laptops. Dean Guter attended Duquesne law school from 1974–1977; the laptop was invented four years after he graduated. He chose, instead, to write his exams by hand in bluebooks.

The law school was eventually moved to its current location in Edward Hanley Hall. The electrical outlets located at every seat in Hanley Hall’s classrooms and the wireless Internet available in every square inch of the law school (including the restrooms), has stirred up quite a debate that Dean Guter never endured or proba-bly never could have imagined during his time as a law student.

While some feel that laptops in classrooms create unnecessary dis-tractions, others argue that they aid in their law school success. Laptops provide a wealth of information at the students’ fingertips—instant access to cases and statutes—or, in the al-ternative, access to international, on-line chess competitions. Dean Guter will likely steward the debate about the pros and cons of Duquesne Law Students’ access to in-class Internet.

Guter began his tenure as Duquesne Law’s Dean in 2004, and is the first graduate of the law school to serve in that position. Dean Guter hopes, among other improvements, to

revamp the core curriculum at the law school, create a comprehensive first-year legal writing program, and increase Duquesne’s bar passage rate. T H E P R E S E N T While Duquesne reaches into the past for inspiration to improve on many aspects of the legal program, it also continues to blaze ahead by creating and maintaining successful student organizations, trial teams, and law clinics—all things that help prepare law students for practical legal work.

The Trial Advocacy team maintains its national prominence as it consistently places in many regional and national tournaments. The moot court and mock trial teams also enjoy contin-ued success. The Law Clinics serve as platforms on which students gain experience and are able to hone their legal skills. Duquesne not only seeks to prepare students for success within its walls, but also for success in taking the bar and in the outside legal world.

C U R R E N T C H A N G E SAn ad hoc committee chaired by Dr. John E. Murray, Jr. recently recom-mended adjusting the required cours-es list because the Pennsylvania Bar exam no longer tests certain subjects. Likewise, classes were added to the required curriculum to ensure stu-dent preparation in those areas that the bar is testing.

A new Director of Bar Services, Rich-ard Gaffney, was recently appointed to direct and administer the develop-ment and implementation of a bar ex-amination preparation program. The

program is to include an intensive review of bar examinable subjects, assist in curriculum development, se-lect educational support materials for the program, and provide individual consultations, along with many other related tasks.

O U T L O O KDuquesne Law School has always been regarded with high esteem, especially in the Pittsburgh Legal community. Graduates are partners at prestigious law firms and fill the largest number of seats on the bench in Pittsburgh. “One true measure of a law school’s greatness is the success of its graduates. Duquesne Law School takes a back seat to no one within that category,” said Dean Guter. As Duquesne Law approaches its centen-nial, it continually seeks to improve its curriculum, provide its students with the best possible legal education, and, above all, to prepare its students to become the best attorneys possible.

This article is based on interviews with Dean Donald Guter, alumnus Reuben Fingold, Esq., assorted ma-terials from LexisNexis, Westlaw, the Spring 2002 issue of Juris Magazine, the Duquesne Law website, state-ments by alumnus Judge Dwayne D. Woodruff, and materials provided by Dean Donald Guter.

Jenyce Michelle Woodruff is a sec-ond-year law student with an interest in Bankruptcy and Corporate Law. She completed her undergraduate degree in finance at the American University. She can be contacted at woodruffj@duq.edu.

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Journey to the Mountain Kingdom

By Assistant Dean Ella Kwisnek

As a third-year law student, I felt that if I were to ever join the Peace Corps I had to do it then. In Oc-tober of 1990, I began the lengthy application pro-cess that involved several interviews and physicals. In the spring of 1991, shortly before my graduation, I was notified that I was selected to go to Lesotho as an agricultural education volunteer.

In November of 1991, the day after I learned that I had passed the Pennsylvania Bar Exam, I headed off for the Mountain Kingdom as a Peace Corps volun-teer. Upon arriving in Lesotho, we exited the plane and were welcomed by a group of Basotho sing-ing songs of welcome. We then headed toward our training site where we received eight weeks of in-country training before being sent to our individual sites. Before going off to the sites to which we were assigned, Peace Corps provided everyone with a stipend and a list of suggested items to purchase. We then had a couple of days to shop for these essen-tials—pots, pans, etc.

I was assigned to Lesotho Agricultural College (LAC), which is located in the capital city of Mas-eru. While there, my primary assignment was teaching, and I taught courses in Home Economics, Animal Science, and Computers.

Besides the primary assignment, Peace Corps volunteers were also permitted to work on second-ary projects: a perfect opportunity to use my legal training. LAC had a Student Enterprise Projectprogram that encouraged graduates to begin their

L E S O T H O T H E C O U N T RYLesotho is a small, landlocked country*, located in-side South Africa with overwhelming natural beauty matched only by the welcoming and giving nature of its people. Much of Lesotho is covered by the towering Maluti Mountains, and even the lowlands, where most Basotho live, are 4,266 feet above sea level—the highest lowest point of any country in the world.

Today, Lesotho is a parliamentary constitutional monarchy made up of ten administrative districts. Lesotho has a bicameral parliament that consists of the Senate (33 members, including 22 principal chiefs and 11 other members appointed by the rul-ing party), and the National Assembly (120 seats, including 80 by direct popular vote and 40 by pro-portional vote). Under the country’s constitution, the leader of the majority party in the National Assembly automatically becomes prime minister. The monarchy is hereditary, but, under the terms of the constitution, which came into effect after the March 1993 election, the monarch is a “living sym-bol of national unity” with no executive or legisla-tive powers.

own businesses. I lectured these students on the various forms of business and assisted one group that decided to form a corporation. In addition, I worked with an organization entitled the Federation for Women Lawyers. I helped them edit a publica-tion and assisted them in doing outreach to women in rural villages.

* Area: 30,355 sq km—slightly smaller than Maryland

33

L E S O T H O L E G A L S YS T E MThe Basotho are governed by a dual legal system, one that permits the application of customary law or the application of laws from the “received” legal system. The received legal system is based on English common law and Roman-Dutch law. The Roman Dutch law was introduced into the Kingdom in the late 19th century via the British Colony of the Cape of Good Hope. The side-by-side operation of traditional law and common law was a result of both legal and political designs.

The common law was declared as the law of Lesotho in the 1870s; however, Basotho refused to be bound or regulated by any law that reflected foreign traditions and underpinnings. In Lesotho, therefore, disputed matters brought before the courts are settled either through the application of customary law or through application of common law and enacted law.

The structure of the court system is as follows:

Court of Appeals

High Court

Subordinate Courts (magistrates)

Judicial Commissioner’s Courts

path of appeal

Central Courts

path of revisory jurisdictionLocal Courts

Basotho Courts

The watercolor is a village scene in Lesotho. A man dressed in a traditional Basotho blanket and hat, looks upon the village.

34

The Court of Appeal hears appeals from the High Court. It also has limited original jurisdiction on matters relating to succession to the throne and the regency.

The High Court has unlimited original jurisdiction to hear any civil or criminal proceeding, whether relating to common law and statutory enactments, or traditional law.

The Subordinate Courts are staffed by various classes of magistrates. They exercise civil jurisdic-tion within certain financial limits. In practice, the Subordinate Courts hear more criminal matters. If a magistrate determines that the matter would best be resolved in Basotho Courts, the magistrate may transfer the matter to a Local or Central Court. Subordinate Courts also have revisionary powers over Basotho Courts.

Basotho Children— Photo by Patty Ghillebert

They may revise any order made by a Basotho court, order a retrial, or transfer a matter to a subordinate court. However, they only interfere if there is gross error or irregularity on the face of the proceedings or if there is evidence that the Basotho Court presi-dent was prejudiced.

The Central and Local courts, commonly referred to as Basotho Courts, are limited to applying cus-tomary law. Accordingly, by electing to institute proceedings in a Basotho Court, a plaintiff chooses to have the case decided according to traditional law. However, a defendant can request that the president of a Basotho Court or a magistrate transfer the case to a Subordinate Court. If a president of a Basotho Court believes that the matter would best be deter-mined under the common law, the president must decline jurisdiction and transfer the matter to a Subordinate Court.

35

T H E L E G A L P RO F E S S I O NThe legal profession in Lesotho is divided into advocates and attorneys. Both have equal rights of audience in the Court of Appeal, High Court, Judicial Commissioner’s Courts, the Subordinate Courts, and the Basotho Courts in criminal proceedings.

Distinctions between the titles relate to requirements concerning trust accounts and admission standards. Although advocates and attorneys must earn a Bachelor of Laws (LL.B.) degree, those seeking to become attorneys must also pass an exam that covers practice and procedure, bookkeeping, and conduct and du-ties of the profession. Disciplinary control over legal practitioners is exercised by the High Court and the Law Society.

Like law school, Peace Corps is a life altering experience. Afterwards you view the world differently.

************************Ella Kwisnek is Assistant Dean for Students and Director of Career Services at Duquesne University School of Law. She is Secretary of the Board for Friends of Lesotho, an organiza-tion that raises money to fund scholarships and projects in Lesotho.

REFERENCES:Vernon V. Palmer & Sebastian M. Poulter, The Legal System of Lesotho (1972).

Sebastian M. Poulter, Legal Dualism in Lesotho (1981).

Journey to the Mountain KingdomAppeals from the Central Courts are reviewed by the Judicial Commis-sioner’s Courts. This intermediate court helps limit the number of ap-peals that reach the High Court.

Chiefs and headmen handle many local non-criminal matters utilizing mediation and conciliation. They cannot enforce their decisions and it is a criminal offense for a chief to attempt to usurp the powers of the Basotho Courts.

Assistant Dean Ella Kwisnek

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Fresh Faces for Fall

As the school year moves into full swing, students on campus may have noticed a few new faces around Duquesne University’s Law School. The Law School has created two new positions in an effort to improve both the bar passage rate of graduates and the overall functioning of the Law School. Marlon Ferguson has been added as Law School Business Manager, and Richard Gaffney is the new Director of Bar Services for the Law School.

Ferguson was born and raised in Aliquippa, Pa., where he was the second of five children. As a child he enjoyed classes that dealt with debate and communications. After graduating from Center High School in Aliquippa, Pa., Ferguson attended the University of Pittsburgh. While at Pitt Ferguson played basketball and led the team to several regional and national championships. After his junior year, Ferguson joined the Navy where he served for seven years. Ferguson specialized in intelligence and fought in Desert Storm and the Persian Gulf during his tour of duty.

By Kristian Parker

DUQUESNE’S NEW BUSINESS MANAGER

Ferguson is responsible for financial oversight, which entails budget development for student organizations. He is also in charge of maintaining the facilities of the Law School and the general operations of the physical building. Finally, Mr. Ferguson is responsible for developing policies and procedures for the Law School.

On a personal note, Ferguson enjoys playing tennis, watching sports, and attending plays in his free time. He also loves to bake and cook (his best dishes are homemade cheesecake and chicken parmesan). He is currently pursuing one of his lifelong ambitions of becoming an opera singer.

Mar lon Ferguson

Fresh Faces for Fall

37

Richard Gaffney hails from Pittsburgh. He completed his undergraduate degree at the University of Pennsylva-nia as a journalism major. After his undergraduate work, Gaffney earned his master’s of business administration from Duquesne University and later earned his juris doctorate from the University of Pittsburgh.

Gaffney’s new position is a huge undertaking, which is completely focused on improving the bar passage rate for Duquesne Law graduates. He intends to achieve this goal, in part, by offering an academic success program that offers one-on-one tutoring to students that need extra help. Gaffney feels very strongly that students should begin preparing for the bar exam in their first year at the law school and strongly suggests that all stu-dents at the law school take advantage of the Bar Review Program.

In his spare time Gaffney enjoys tennis, gardening, and reading (especially Christian philosophy). Kristian is a second year law student at Duquesne Law School. She may be reached at parkerk@duq.edu

DUQUESNE’S NEW DIRECTOR OF BAR SERVICES

Ric hard Gaf fney

Fresh Faces for Fall : Marlon Ferguson and Richard Gaffney

38

The Toughest Job You’ll Ever Love*By Professor Robert S. Barker

It was nine o’clock on Tuesday morning, November 19, 1963. I was a first-year law student at Duquesne. My first class of the day, Dr. Murray’s Contracts, would begin at ten, and so I decided that I could afford to venture into Mills Auditorium to hear a speech by a distinguished visitor to campus, R. Sargent Shriver, Director of the Peace Corps (and brother-in-law of President Kennedy). “Sarge,” as everyone called him, presented a clear, indeed fasci-nating picture of the challenges facing the developing countries of the world and of the ways in which Peace Corps Volunteers were helping to meet those chal-lenges, working side-by-side with the people in doz-ens of countries of Asia, Africa, and Latin America.

I was impressed. As I left the auditorium (a bit early, so as not to be late for class), I was convinced that the Peace Corps was a good idea—for B.A. general-ists right out of college, but probably not for lawyers. Had I stayed for the entire presentation, I might have learned that Shriver, himself a member of the Illinois bar, regarded lawyers as the ultimate generalists and therefore the most versatile of Volunteers.

Three days after Shriver’s speech at Duquesne, the President was assassinated. The events of November 22 and the days that followed made the case for the Peace Corps more vivid and more compelling. Still, it seemed to me, it wasn’t for lawyers.

THE DECISION TO SERVETwo years later, as a third-year student, I noticed on the Law School’s bulletin board an announcement from the Peace Corps that lawyers were needed as Volunteers in Liberia, Ethiopia, Venezuela, and Peru. Perhaps the Peace Corps was for lawyers after all. I applied and received an invitation to train for Venezu-ela. However, training was to begin before the all-im-portant Pennsylvania Bar Exam, and so I asked to be considered for a later assignment. After a number of phone calls to and from Washington, I was invited to train for Panama where, I was assured, Peace Corps activities were so varied that I could be confident that my identity as a lawyer would not be lost.

The bar exam results arrived in late October, and I was promptly admitted to the Pennsylvania courts (admission in those days involving six separate cer-emonies). On November 20, I arrived with ninety-seven other trainees (four of whom were also lawyers) at the Peace Corps Training Center in the mountains of west-central Puerto Rico.

PREPARING TO SERVEThere followed three months of intensive preparation for what we hoped would be two years in Panama. Training emphasized conversational Spanish, area studies, community development (in theory and practice), and—most challenging of all—field train-ing, in which each of us was sent, alone and without introduction, to live for a week (and, later in the training process, for two weeks) in a designated vil-lage or barrio. At the end of the three months, fifty-seven of us had successfully completed training and, in a brief ceremony in San Juan, we were sworn in as Volunteers.1

The Peace Corps’ emphasis on adaptability meant that I did not know where in Panama I would live or what my assignment would be until our group land-ed, in the middle of the night, at Tocumen Airport in Panama City. Upon landing each of us was handed a

* This description of Peace Corps service, by an anonymous Volunteer, later became a promotional slogan for the Peace Corps.

39

sealed envelope, which we eagerly opened. The note in mine read: “Urban Community Development Program: Panama City.”

Panama City, the national capital and my home for my two years as a Volunteer, was (and is) a vibrant, natu-rally-beautiful, and historically-intriguing city, whose dominant Hispanic and Afro-Caribbean culture is enriched by Chinese, Sephardic Jewish, Hindu, Arab, and Anglo influences. The Urban Community Develop-ment Program, to which I was assigned, was just being organized at the time of my arrival, and it enjoyed sig-nificant support from the U.S. Agency for International Development (USAID).

LOS POBRESThe mandate of the Program was to promote the de-velopment of a few selected barriadas de emergencia (squatter settlements) of Panama City by helping the residents to organize themselves, establish plans for community improvement, and, through the maxi-

mum use of community resources, carry out those plans. The Urban Community Development Pro-gram (which, while formally part of the Panamanian Ministry of Labor, Public Health, and Social Welfare, enjoyed considerable autonomy) assisted the commu-nities in the organizational process and supplemented local resources with small loans, even smaller grants, and technical assistance. The success of the Program in the three or four “demonstration communities” would, it was hoped, inspire the city’s thirty other barriadas to begin their own development programs.

Before long it became apparent to a number of us that “community development” could not succeed in either a civic or a material sense as long as the bar-riadas themselves remained illegal settlements. This realization prompted a movement to establish, under the aegis of the Urban Community Development Program, a program of legal services (to be provided, of course, by Panamanian lawyers) to the barriadas, and it was this effort that occupied most of my time in Panama.

1 Just three years before, Panama had been the scene of anti-U.S. rioting, in which twenty-four people died. Since then relations between the two countries had remained somewhat delicate. This made the Peace Corps especially cautious in its evaluation of trainees for Panama, and that caution no doubt explains the unusually high rate of attrition in our group.

“Every Volunteer has come to learn that ... he has received far more in return.” — Professor Robert S. Barker

40

a lawyer)—and I “took the show on the road” and, with the help of several Peace Corps Volunteer lawyers working in rural Panama, held a series of meetings with attorneys, judges, and local officials in the provinces ofVeraguas, Los Santos, and Chiriquí, to promote the idea of legal services to the campesinos. One meeting in Santiago, the capital of Veraguas province, took on the atmosphere of a Western movie when a group of cattlemen, obviously unhappy with our “revolutionary” program, entered the restaurant where we were meeting, leaned with their backs against the bar, and glared menacingly at the long table where we were gathered. Fortunately, the mayor of the town and the governor of the province were part of our group, perhaps preventing the situation from getting out of hand.

THE BEST-LAID PLANSIn October 1968, a few months before I was due to leave Panama, a coup by the country’s National Guard over-threw the elected government. At first, the country’s new military leaders appeared to be sympathetic to the legal services program; however, before long they moved it—along with the rest of the Urban Community De-velopment Program—into the Office of the Presidency, where it disappeared.

But good ideas, like truth, have a way of re-emerging, and the legal services program has come back, now under the auspices of the University of Panama Law School. Many of the barriadas have been legalized through voluntary purchase and indemnified expropriation; others have been relocated to areas where their legitimacy is clear and liv-ing conditions are much improved.

CONSTITUTIONALISM PERSEVERESThe story of Panama’s legal services program parallels in many ways the history of constitutionalism in all of Latin America. The republics of Spanish and Portuguese America were founded on principles of human dignity, self-govern-ment, and the rule of law. Although the proper implemen-tation of these principles has sometimes been impeded by oligarchy, secret societies, racial discrimination, and military activism, the fact remains that the countries of the Western Hemisphere are part of Western

Professor Robert S. Barker (‘66)

CULMINATION OF A PLANAfter much negotiation and some setbacks, with the invaluable support of Panamanian jurists and community leaders, and the help of the local business community and USAID, the Barriada Legal Services Program was inaugurated in May, 1968. (The story of the establish-ment of the program is recounted in my article, “Justice in the Barriadas,” in the October 1968 issue of Juris.) Having established the legal services program in Panama City, my colleagues—Panamanian lawyers Raúl López and Oscar Ceville, and USAID officer John Gibson (also

The Toughest Job You’ll Ever Love

************************Professor Barker is a 1966 graduate of Duquesne Law School, where he was Casenote Editor of the Law Review. He has been a Peace Corps Volunteer in Panama (1967–1969); a Fulbright Scholar in Argentina (1995); a visiting professor at law schools in Mexico, Argentina, and Guatemala; and a con-sultant to Venezuela’s Constitutional Convention of 1999. He has spoken and lectured on constitutional top-ics in fifteen countries of the Western Hemisphere and Europe, and is the author of the definitive English-lan-guage study of Costa Rica’s Constitu-tional Chamber. For five years (1999–2004) he was the General Reporter of the Inter-American Bar Association, for twelve years (1984–1996) was Chairman of its Committee on Con-stitutional Law, and is now Chairman of its Law School Section.

************************ Professor Barker has been a member of the Law School Faculty since 1982, and in 2001 was awarded the rank of Duquesne University Distinguished Professor of Law. His book, La Consti-tución de los Estados Unidos y su dinámica actual, was published in 2005 and is scheduled for a second printing in 2007. His papers dealing with the es-tablishment of Panama’s legal services program are part of the Peace Corps Collection at the John F. Kennedy Presidential Library in Boston.

Civilization and its tradition of limited, regulated government (known in our time as “constitutionalism”). The interruptions of constitutional government by coups and dictatorships are recognized by the peoples of the Americas for what they are—departures from the legal, and moral, norm. This, more than anything else, explains Latin Americans’ persis-tent defense of, and return to, constitutional government.

As a Volunteer I came to know many Panamanians who were (and con-tinue to be) sincerely committed to liberty, civic virtue, and a decent life for all. Since then I have had the good fortune to speak, conduct research, teach, and participate in conferences throughout Latin Ameri-ca. From time to time, people here at home give me credit for “writing constitutions” for various countries. I know that those people mean to compliment me, and I appreciate their kindness and good intentions; however, I hope that I would never presume to tell the people of any other country how to write their constitutions (or, for that matter, any of their other laws). What I try to do, whenever the occasion permits, is to participate with my colleagues from other countries in an exchange of ideas and national experiences, in the hope that the exchange will be beneficial to us all.

A QUESTION PROMPTS ACTIONIn the early morning hours of October 14, 1960—memorable because the Pirates had won the World Series just a few hours before—John F. Kennedy, campaigning for the presidency, asked a large group of college students on a Midwestern campus: “How many of you are willing to give up part of your lives to work in Africa, Asia and Latin America for the United States and for freedom?”

The question resounded from campus to campus and from coast to coast, and the response was immediate, affirmative, and enthusiastic. A few months later, President Kennedy signed Executive Order 10924, establishing the Peace Corps. Since then, the Peace Corps has always enjoyed strong bipartisan support, including notably that of Presidents Ronald Reagan and George W. Bush.

History has proven that there was only one inaccuracy in John Kenne-dy’s 1960 question to the students, and it has to do with the words “. . . give up part of your lives. . . .” Every Volunteer has come to learn that whatever he (or she—59 percent of current Volunteers are women) may have contributed to the people of the country where he served, he has received far more in return. I hope that as a Volunteer I gave some-thing worthwhile to Panama, and in the years since to others in our Hemisphere; but I know that they have given me much, much more.

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Justice Samuel A. Alito,

Jr. poses for his official

2006 Formal Supreme

Court photograph in

robes. March 3, 2006

Justice Alito Coming to Campus

42Steve Petteway, Collection of the Supreme Court of the United States

43

Samuel Anthony Alito, Jr., Associate Justice of the Supreme Court of the

United States, will visit Duquesne University on Wednesday afternoon, April 4, 2007, at 3

p.m. to receive the 2nd Carol Los Mansmann Award for Distinguished Public Service. The

first award was bestowed on Justice Sandra Day O’Connor in 2001.

Justice Alito served for fifteen years on the United States Court of Appeals for the Third

Circuit with Judge Mansmann. He will speak about Judge Mansmann’s enormous contribu-

tions to the legal profession throughout her career. The entire Third Circuit Court of Ap-

peals and the Mansmann family have been invited to attend this special event that is co-host-

ed by the Duquesne University School of Law, the Allegheny County Bar Association, and

the Federal Bar Association. All Law School alumni are cordially invited to attend. For more

and updated information about the event, visit www.duq.edu/alito.

Carol Los Mansmann, a 1967 graduate of Duquesne School of Law, was a distinguished leader in the legal community. The first woman to be appointed to the federal bench in Pennsylvania, she served three years on the U.S. District Court before being appointed to the U.S. Court of Appeals for the Third Circuit (here, she served with Judge Samuel Alito for nearly fifteen years). Prior to her judicial career, Judge Mansmann served as an assistant district attorney, special assistant to the commonwealth attorney general and engaged in private practice. Throughout most of her career, Judge Mansmann was also a member of Duquesne’s law faculty. She lost her battle with breast cancer in 2002 at the age of 59.

The Carol Los Mansmann Award for distinguished service was established shortly before her death to honor her commitment to public service. Supreme Court Justice Sandra Day O’Connor was the first recipient.

Carol Los Mansmann

Duquesne University School of Law600 Forbes AvenuePittsburgh, PA 15282

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