Home

Advertorial

Op-Eds

articles

ghost writing

Newsletters

News Releases

my background

MLT Retrospect

Lehigh valley living

Brotherly Love Historic Trail

By Mark E. Dixon

The faculty at Widener School of Law is proof that those who can really do teach.

Members of the Widener faculty are making a difference – literally – around the globe. A criminal law professor, previously U.S. attorney to the Virgin Islands, has been active in efforts to reform the Russian legal system. An environmental law professor just wrote and edited a book that could break business and the environmental movement out of their traditional tactics of confrontation. The director of Widener’s clinical program is also helping to introduce inner city high schoolers to the law. And several professors have banded together to help law students learn how to balance the rigors of legal education with the sometimes conflicting demands of jobs and family. And…well, read on.

Just teach? Maybe at some other law school.

How does a totalitarian state get democratized? It takes more than elections, says criminal law professor Jim Diehm who, in 1997, developed the Central and East European Law Initiative for the American Bar Association. The program is aimed at nothing less than a top-to-bottom reform of the legal systems in Russia and its former republics.

According to Diehm, who also served as U.S. Attorney to the Virgin Islands under President Reagan, structure is a primary difference between the U.S. and old Soviet criminal courts. Whereas ours is adversarial – a contest between the defense and prosecutor – theirs is inquisitorial, a process through which the accused is examined for guilt.

"That doesn’t necessarily produce a bad result," said Diehm, noting that the French, German and Swiss systems are also inquisitorial. "The problem in (the Soviet Union) was that the entire system was subjugated to the will of the state." Both prosecutor and judge, for instance, were appointed through a process controlled by the communist party, resulting in things such as "phone-in" verdicts, in which judges were instructed what conclusion they should reach.

Judges in Western Europe, in contrast, hold career positions and are independent of such influences – although their legal processes are still inquisitorial in form.

Diehm’s initiative, therefore, is educational. The program has presented seminars for the Ukrainian Law Academy and other entities that examine how its legal system can be separated from outside influences.

"They need to give more independence to judges so that the law is in control, not the party in power," he said. "The question is: Will they put in our system or someone else’s?" Whatever choices Russia and its former republics make, Diehm is convinced that the desire to move toward democracy is genuine.

Think that’s complicated? Consider Juliet Moringiello’s and Ann Anker’s hobbies. Moringiello teaches commercial and bankruptcy law; Anker teaches business organization and securities regulation. Both are active in bar association efforts to create uniform state laws for commercial transactions.

Moringiello is the chair of the publications committee for the ABA business law section and vice chair of its Uniform Commercial Code (UCC) committee.

Anker is the reporter for a project by the National Conference of Commissioners on Uniform State Laws (NCCUSL) that is seeking to coordinate state rules on business mergers. She is also one of five Delaware Commissioners to NCCUSL and previously served on the drafting committees for the Limited Liability Partnership Act, the Uniform Limited Partnership Act and Article 8 of the Uniform Commercial Code.

Lately, Moringiello’s attention has been UCC’s Article 9, to which ABA’s business law section made several major updates, and which her committee was "first out of the box" to publish. Article 9, last amended in 1972, governs the financing of personal property financing. The new version, which makes allowances for intangible collateral and electronic transactions, was the result of 10 years of work by a committee made up of members of American Law Institute and the National Conference of Commissioners on Uniform State Laws (NCCUSL).

"Now, it goes to the states," said Moringiello, explaining that she is often called to educate legislators about how changes will impact their states. The new Article 9, for instance, was the first to specify a uniform filing date; in Pennsylvania, that promised to cost the state money.

"In Pennsylvania, banks have to file at both the state and county levels, and that state makes money at both levels," she explained. "Under the new system, you only file at state level, so there was a concern that state would lose money." In the end, the legislators behaved predictably. They simply raised filing fees to compensate for the lost revenue.

Anker’s committee, meanwhile, has been crafting uniform legislation to cover both unincorporated associations and incorporated organizations of various types. When that process is finished, the states will be asked to repeal their existing regulations and pass the committee’s suggested replacements.

"There is tremendous nonuniformity all over the country," said Anker. Why is that a problem? Consider Pennsylvania and Delaware whose rules differ slightly on when mergers become effective.

"If I’m doing a deal between Delaware and Pennsylvania entities and the papers don’t get filed properly," she explained, "there could be a vacuum in which the new entity appears before the old entities have quite disappeared." The goal, said Anker, is to make such transactions "look" the same on both sides of state lines.

"It lowers transaction costs and facilitates intrastate commerce," she added. "Basically, it’s just good for business."

In addition to teaching administrative law, John Gedid is the official reporter of decisions for Pennsylvania’s Commonwealth Court. It’s a significant position because Pennsylvania is the only state with a court that hears all appeals of cases involving the government – including those appealed from Common Pleas Court or any state agency.

As reporter, Gedid oversees the writing of the history of each case. His students do the writing.

"It would be a lot easier to write it all myself," he said, "but it’s a great opportunity for students to have professional writing experience." Gedid’s students go through three drafts, he said, and he reads every word, three times."

Gedid is also a member of the Pennsylvania Bar’s Law and Government Institute, one goal of which is "better" regulation.

"There is an ongoing debate about how much regulation there should be and what form it should take at federal level and in the states," he explained. "And one of the issues is how to make certain that agencies stay within their charter in issuing regulations." Some states – Pennsylvania included – have created agencies to review their agencies’ regulations and advise their legislatures.

"It’s an extremely complex process that essentially delays the implementation of regulations until (the review agency) and the legislature can look at them," said Gedid. Because such agencies report to the legislature, however, they have stimulated debate whether the delay of legislation that the executive has signed is unconstitutional. In Pennsylvania, the state Supreme Court has yet to rule on this question, said Gedid.

Meanwhile, business law professor Larry Hamermesh is just beginning to wade into the Enron mess. Elected in 2001 to the corporate laws committee of the ABA’s business section, he was named in March as the reporter of ABA’s task force on corporate responsibility.

"In post-Enron environment, there will be a great deal of attention paid to the independence of securities analysts, accountants, outside auditors, directors – and lawyers," predicted Hamermesh who explained that all are "governance participants" who do their jobs well when – supposedly -- exercising independent thought.

Hamermesh’s task force has yet to begin its real work, but he predicted that the Enron episode would probably lead to changes in lawyer’s professional guidelines or the law, or both. But don’t expect a cure that will prevent all future cataclysms, he said.

"The issues are really very old," said Hamermesh. What’s really needed, he said, is to change the corporate "bubble mentality" that good times can’t end. Reform efforts – such as the post-Watergate effort to make outside director a bulwark – usually don’t prevent future disasters.

"In 10 years, people will vaguely remember Enron, but not the details," he predicted. "Then, investors will again become delirious about wealth maximization and forget consequences of their actions."

Working much closer to home is associate professor of law Nathaniel "Nick" Nichols, who directs the school’s clinical programs and was recently honored for his pro bono work in Chester, Pa., by the Delaware County Bar Association.

The county bar also funds a program to teach constitutional law to public school students and Nichols serves on a committee that chooses applicants from Chester High School.

"It’s a wonderful program," said Nichols, "because they learn by doing, not by stale lectures." During the program, students have the opportunity to watch hearings, meet judges and argue a moot case before judges of the Delaware County Court of Common Pleas. Benefits to the students, he said, include gaining an understanding of legal reasoning skills, inductive and deductive reasoning, public speaking and debate.

"There’s not a lot of reinforcement for this from their (public school) classmates," said Nichols. "What I’m really proud of is that they’re doing it because they want to."

Recently, he developed a clinic in which law students helped tenants at a Chester seniors’ residence fill out living wills and Do Not Resuscitate (DNR) orders. This grew out of a Widener social work student’s experience with one resident concerned about what physicians might do if his wishes weren’t clear. The student saw a need and passed the word to Nichols who made it happen.

"It was a transforming experience for me and the students," said Nichols, who led the seminar on two consecutive Fridays for about 20 seniors. An instructor from the Widener nursing program explained the medical implications while Nichols and his students focused on legal aspects.

"It gave the students an opportunity to work with actual ‘clients’ that they don’t get that every day," he said, "and I hope it will encourage them to continue to do pro bono work when they get into practice."

Nichols’ concern for Chester goes back to 1978 when he was a new lawyer and got his first job in the city. Even today, he’s a member of Omega Psi Phi, a black service fraternity that raises money for college scholarships for Chester high school students.

Randy Lee’s passion for community service is expressed, in part, through organizations such as the executive committee of the American Association of Law Schools Section on professional responsibility, which he will chair beginning in January 2003. It is, said the 13-year Widener professor, not a policy-setting body, but one that supports professional responsibility law teachers in their teaching.

"We want to help them integrate their teaching with national and state bars are doing," said the Harrisburg-based Lee, who has helped organize pioneering CE classes such as a partnership with the Harrisburg Shakespeare Festival which presented "The Merchant of Venice" as a legal-ethical problem.

According to Lee, lawyers face unique ethical dilemmas because they must balance sometimes-competing responsibilities to clients, the court and an abstract thing called "justice." As an example, he cited an attorney who was asked by his client to have divorce papers served to his wife at their annual Christmas party.

"His goal, of course, was to make her miserable, and there is nothing in rules of professional conduct to prevent wife being served that way," said Lee. "But is that the way the lawyer wants to practice and will it really benefit the client in the long run?" The lawyer refused.

"Our goal is to stir the pot," he said. "Because lawyers are self regulating, we have obligation to constantly think about and discuss how effective our rules are in serving the public."

In the 1990s, Lee worked to help revise rules that prevented the deaf from serving on juries in late 80s and early 90s. Such exclusions were once common. After Lee sued on behalf of a woman in Blair County, however, the Commonwealth agreed to make accommodations for such jurors.

It’s trendy these days – due, in part, to the anti-lawyer rhetoric of tort-reform advocates – to dismiss pain and suffering as something that can be adequately compensated in medical malpractice suits. In fact, pain can be measured, says Widener professor Barry Furrow, an editorial board member of the Journal of Law, Medicine & Ethics. Furrow teaches torts and healthcare law.

"Pain is now the fifth vital sign," said Furrow, director of the Health Law Institute. "And one of the things lawyers need to know is that there are ways to measure it, and those methods are improving." Facial tension is often a reliable indicator, he said, and at least one researcher is investigating the use of skin samples to identify pain levels.

Now, said Furrow, is a particularly critical time for the healthcare industry to seek protection against charges of pain mismanagement. Why? Demographics: The post-World War II "Boom" generation is getting to an age when cancer and other painful diseases are becoming more common.

"With pain mismanagement getting easier to prove, you would expect awards to be getting consistently higher," he said. "But tort reform is trying to put a cap on what people can recover. It’s going in entirely the wrong direction."

Opioid painkillers are particularly effective. But, according to Furrow, pressure from U.S. drug enforcement authorities has led many physicians to consider any patient who seeks these powerful narcotics as near addicts.

"Some doctors are justifiably nervous," he said. "Their prescription patterns are being tracked."

According to Furrow, his most recent publication (Health Law: Cases, Materials, and Problems, 4th Edition, West Publishing Company 2000) was intended to educate lawyers about the tools available to them if they chose to sue. Also in the book’s audience, he said, are healthcare providers, who need to know what standards of care they should meet, and law students.

Laura K. Ray, recently named the 2001-2003 H. Albert Young Fellow in Constitutional Law, has a less painful focus – unless English literature makes you wince. With a Ph.D. in the subject, a favorite writing topic is the literary quality of decisions by U.S. Supreme Court justices.

"Justices are individuals," she said, "and it used to be that their decisions often revealed that, although they now seem to have lost that distinctive stamp."

Ray blamed a multiplying number of law clerks, who now write most decisions, and, perhaps, some laziness on the high bench. The court that handled 150 cases per term during the second Roosevelt administration now handles about 75. ("The caseload has decreased, there are more clerks and fewer opinions," she said. "Go figure.")

Ah, for a William O. Douglas.

"Douglas was a romantic," said Ray. "He was a colorful public figure and very interested in poets like Wordsworth and Whitman. He was also very interested in the natural world and spent as much time as possible outdoors."

Characteristic of Douglas’ opinions, she said, was that he came at issues by intuition rather than rigorous legal reasoning. And many legal scholars hated him for it, complaining of his omission of doctrine and precedent.

Justice Harry Blackmun, however, stuck out in Ray’s mind for the despair he expressed in a decision that narrowed the scope of Roe v. Wade. "He noted that he was 83, couldn’t live forever and that his replacement will be chosen on the basis of the abortion issue," she said. "That was unusual. Justices don’t usually acknowledge the role of politics in their decisions."

Ray has also written on the perception of the Supreme Court in film and fiction.

"When (Bob Woodward’s) The Brethren came out, it was considered disgraceful that anyone would go behind the scenes of the court," she said. "Today, I think it’s important for students of jurisprudence to understand not just result, but contributions of individuals to that result."

John Dernbach, meanwhile, just published his latest in a series of books on environmental law. Stumbling Toward Sustainability, which he edited with contributions from 42 authors, examines how the United States has fared in moving toward ecologically sustainable human development. Its verdict?

"We’ve made progress in a small number of discreet areas," he said. "On balance, though, we’ve made little progress and, in many ways, are farther away from the goal."

One success, noted Dernbach, is having gotten lead out of gasoline. ("When we talk about that, people will listen to us," he said.) A conspicuous failure, however, is our failure to reduce consumption, particularly that of land through suburban sprawl.

"Officials tend to want more of the same," he said. "So, the law encourages single-use zoning, subsidies for the use of fossil fuels and federal money to build highways." Exceptions are Burlington, Vt., and the state of Maryland which provide developers with incentives to make use existing sewer and water infrastructure, rather than build on virgin land.

According to Dernbach, sustainable development includes four goals: