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The Arkansas Lawyer

Results of the Fall 1992 FAX POLL We received 35 responses 10 our FAX POLL from Ihe Fall1ggZ issue. Below are Ihe resulls, figured by percenlage. Some percenlages will nol add 10 100% as more than one answer or no answer was given.

1. Do you think the Model Rules of Professional Conduct are strict enough? 69% yes 31% no 2. Do you think enough elhlcs classes are laughl In Arkansas law schools? 23% yes 74% no Commenls included: "We were read la, Ihal's it"

3. Do you Ihink punishment lor violations ollhe Model Rules is fair? 63% yes 34% no 4. Do you advertise your professional services In Ihe Yellow Pages? 34% yes 66% no 5. Do you think "lawyer advertising" helps or hurts Ihe

image o' Ihe prolesslon? 3% helps 80% hurts 17% no effect Commenls included: "Encourages ambulance chasing image" "I have never seen an allorney advertise on lelevision in a manner IIhoughl had a positive ellecl on Ihe legal profession" 6. Do you think "lawyer advertising is well monitored? 9% yes 89% no

Even wilh Ihe ousting of Presidenl Bush and his "Council on Competitiveness"Ihe issues brought aboul by Ihe group slill demand answers from Ihe legal profession. FollowIng are questions on your views concerning Engtish Rule and Value Billing, bolh lopics currenlly being discussed on Ihe national and local levefs. Please feel free 10 send in additional comments.

1. Some view the idea of English Rule or "loser pays" as the only lair way of paying 'or Iitigalion. Do you think il is ''fair?'' _ _ yes

_ _ yes

_ _ no

8. II you answered yes fo either o. fhe previous Iwo quesllons, do you .eel "loser pays" should be limited 10 litigation Involving privately funded individuals facing Institutions? (I.e., Joe Slip&fall vs. Melronationallnsurance)

_ _ yes

___ no

9. Do you feel legal Aid services should be exempt from "loser pays" rules? _ _ yes

2. Do you think the use 01 English Rule would discourage frivolous or questionable litigation? _ _ yes

7. Do you think "lawyer advertising should be restricled more? 86% yes 14% no

no

7. Do you think Individual slates should Implement English Rule?

no

no

10. Do you Ihink Value Billing would be a good step loward Improving Ihe justice system In the United Slates?

3. Do you Ihink use of contingency lees

_ _ yes _ _ no

discourages frivolous or questionable Iiligalion?

11. Do you 'value bill" now?

8. Do you think the organized bar should be involved In helping the image aflorneys In Arkansas? 91% yes 9% no

_ _ yes

_ _ yes _ _ no

9. Do you think the Supreme Court should be involved In helping the image of aflorneys in Arkansas? 63% yes 34% no

4. Do you Ihlnk than Ihe use o. English Rule would inhibit those wllh meritorious claims from seeking compensalion?

d'

10. Do you de'end the legal pro'esslon when talking with non-lawyers? 63% yes 14% no 23% sometimes Commenls included: "I normally don'I even lell new acquainlances Ihal I am an allorney; II's too embarrassing"

_ _ yes

no

no

d'

5. Do you think the Implemenlatlon English Rule would Increase fhe number o. early sefllements?

_ _ yes ___ no 11. Do you Ihink a public service campaign would help the image of lawyers in Arkansas? 6. Do you think English Rule should be 66% yes 34% no Implemented in Ihe United Slafes on a Commenls included: "/I should showcase Pro Bono nalional basis? lawyers" "Unlil allorneys do beller, nolhing will help _ _ yes _ _ no Ihe image of Ihe profession"

_ _ sometimes 12. Do you Ihlnk Ihe national or local governmenl should be able to regulate billing路 be II value or hourly? _ _ yes _ _ no 13. Do you think Ihe American Bar should lake a stand on value billing? _ _ yes

no

14. Do you Ihlnk Ihe Arkansas Bar should lake a stand on value billing? _ _ yes _ _ no

FAX this completed sheet to:

The Arkansas Lawyer at 375-4901 or mail to 400 W. Markham, Little Rock, Arkansas 72201

LETTER

FROM

THE

EDITOR

1mfrom Arkansas 1

By Paige Beavers Markman

On a warm October afternoon, I sat down on the plaza steps in front of the Arkansas Bar Center and watched as Bill Clinton, Governor of Arkansas announced that he was going to run for President of the United States, and I've got to admit, I didn't think he had a chance. Why? ot because I didn't know that the man had the intelligence, the ambition and the vision. Everyone in Arkansas knows that he is a consummate politician. I'm ashamed to admit that as much as I love the state of Arkansas, as much as this small state has given me, I didn't believe the American people would believe in any man or woman from Arkansas enough to elect them to run the entire country. Yes, the old self-imposed inferiority complex that plagues so many Arkansans had a tight grip on me. I sat in my hotel room in Minneapolis in the early morning in January and watched both the news and USA Today proclaiming that the Gennifer Flowers scandal would be the end of Clinton's campaign for the White House. I was at a meeting of Legal Editors and that morning as we introduced ourselves and our publications, I stood up and said "I'm Paige Markman from Arkansas, and no, I have not been having an affair with Bill Clinton for 12 years." The group broke into laughter and afterward, I got my first taste of what being from Arkansas this year meant. From that moment on, I found that not only would I be asked questions about my state and its leader, I was expected to give clear, intelligent answers about Clinton's policies, his record and my perception of how he had run our government. So I read and I listened. And as I traveled around the country a few times after that, I answered questions. I developed a new sense of pride in Arkansas as the election went on and Clinton continued to beat the odds and the press. And even though I just wanted to tell people what they desperately wanted to hear, I think I told the truth to the best of my knowledge - Bill Clinton is not perfect, but he has helped the state of Arkansas, and I believe he can help the country. I refused to discuss what little I knew about his personal life. After a particularly irritating flight to New York (6 months pregnant), I snapped at a hotel clerk who asked me about Clinton's supposed affair with Flowers - "If Bill Clinton can get this country out of the mess its in, I don't really care if he does the wild thing with Madonna in the middle of Texas Stadium and ne.ither should you!" Carmine, the hotel clerk, gave me my key and said goodbye. As the results started to come in on election night my husband and I prepared to go to a watch party. By 7:10, Peter Jennings was projecting several states for Clinton and none for Bush. My husband looked at me and said "It's over already, why are we even going to a watch party?" I was as shocked as he was. I had thought Clinton would win, but I didn't think it would be that fast! And that night, as I watched the political announcers give the Presidency to the Governor of Arkansas and the people swarm over downtown Little Rock, I remembered my skepticism at the beginning, and I was ashamed. But this time, there was no shame in being from this wonderful small state, only the feeling that I had let myself and my state down by not believing in us. I supported Bill Clinton in this election, but I admit I haven't supported him in the past. So now, as everyone tries to jump on the Clinton bandwagon and head for Washington D. C. - I think I'll just sit back and enjoy the scenery. Now I believe, as does the entire country, that Arkansas is happening - and more importantly to me - it's home. 4

ARKANSAS LAWYER

JANUARY 1993

VOLUME 27, NUMBER 1 PUB USHER

Arkamas Bar Association EDITOR & ART DIRECTOR Paig~ Btav~rs Markman Dir~ctor ofPRiMark~ting

ARKANSAS BAR ASSOCIATION 400 W. Markham Little Rock, Arkansas 72201

In This Issue:

4

Letter from the Editor

President

7

Letters to the Editor

John P. Gill Presidenc-Elect E. Lamar Pettus

8

The Developing Law: The Arkansas Securities Act: A Reborn Vehicle for Plaintiffs

OFFICERS

lmmediate Past President Jam.. H. McKeJWe Secretary -Treasurer

Rodney E. Slater Executive Council Chair

14

Disciplinary Actions

Rosalind M. Mouser Executive Director William A. Martin

17

Book Reviews

Assin:l.flt Executive Director Juwth Gray EXECUTIVE COUNCIL

Joe Benson Sanford Beshear William Clay Brazil Thomas M. Carpenter

Michael H. Crawford Boyce R. Davis Vincent Foster. Jr. Stephen A. Geigle Dave W. Harrod Henry C. Kinslow Roben Lynn Lowery

Jerry c. Post J. Thomas Ray Eddie H. Walker, Jr. Roben E. Young

19 21 23

The President's Message

28

By John P. Gill By Jerry Schwartz

Legislation of the 102nd Congress and a Look Ahead at the 103rd

By Paula Casey

COVER STORY: The Clintons Go To Washington

By David R. Matthews

31

How to Determine the Best Interests of the Child in Custody Litigation: A Guide for Judges & Lawyers

By James A. Chaney & Lil/ian Chaney

38 40 41

In Memoriam

E. Lamar Pettus

The Ark~nsa8 L"wyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Second class po6tage paid at Little Rock, Arkansas. POSTMASTER: send address changes 10 The ArkJllnsu Lawyer, 400 West Markham. Little Rock, Arkansas 72201. Subscription price to non路 members of the Arkansas Bar Association $15.00 per year and to members $10.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to EDITOR. Arkansas Lawyer, 400 West Markham.. Little Rod, Arkansas 72201. All inquiries regarding advertising should be sent to The Arkansas Lawyer at the above address.

By Phillip A. Pesek

Law Practice Management

EX-OFFICIO John P. Gill James H. McKenzie Rodney E. Slater Rosalind M. MOllSt:T Lucinda McDaniel

By Paige Markman

43 46 48 54

Young Lawyers Section Column

By Lucinda McDaniel

Law Office Technology Review

By Barry D. Bayer & Benjamin H. Cohen

Law, Literature & Laughter

By Victor A. Fleming

Executive Director's Report

By William A. Martin

Between Science & Sound Bites: The Future of Environmental Regulation

By Steve A. Weaver

Arkansas Bar Association CLE Calendar

LETTERS

TO

THE

EDITOR -

Dear Ed itor: In response to your request in the last issue of Tlte Arkansas Lawyer, to send us your ideas, I am enclosing literature which, in part, answers the question as to why the legal profession has a bad public image. The advertising and other public promotion of the idea of lawyer's greed is the source of making money for a number of people and organizations that stand to profit by doing so. The enclosed is a good example. This is not to overlook national advertising or political campaigning that denigrates the profession. There are obviously situations for which very legitimate criticism and disciplinary action are justified. However, situations are frequently exaggerated, inaccurately reported or misinterpreted, and widely disseminated by those who find it beneficial to promote tha t view in their own best interest. H. Murray Claycomb Warren, AIkansas Editor's Note: The literature sent was a brochure from a company called Homestead Publishing i/l California advertising "The Living Twst Kit" with promotional materials blaming lawyers for the high costs of probating wills. The brochure tells people that they should "avoid probate - so Ihal your

family can gel 10 keep Ihe assets thai are righlfully Iheirs."

Dear Editor: My wife is an artist and asked me about the picture on the cover of our most recent publication of Tlte Arkansas Lawyer, and [ brilliantly, said that it looked like an old-timey selection of a jury in court presided over by a circuit rider. She then asked me who did the artwork, and I said that I would find out. I looked through the entire publication, and I'm sorry, you do not credit the art work to anyone. I would appreciate it very much if you could tell me who the artist was on the from page of the issue, as I would like to pass it on to my wife. R. L. Wommack Fayetteville, Arkansas Editor's Nole: The credit was inadvertenlly left oul of Ihe magazine, an error for which we apologize. The arlwork is pari of a series offered free of charge 10 Bar Associalions nalionwide called "West Arl & the Law," by Wesl Publishing Company. The litle of Ihe piece is "Jury Duty" and was done by Livermore, California arlisl Muriel Doggell for the 1985 edilion of Arl & Ihe Law. The caption in Ihe calalogue reads, "Jury Duty depicts the ever-changing daily galhering of faceless men and

women, suit/maned by Ihe COllll1y clerks, wlto are waiting for courtroom calls. Cigarelles, coffee and reading molter help to pass Ihe lime, Some will become pari of a Jury, others will return to the wailing room wondering why Ihey were excused. Only the set/ing remains conslanl." We found this piece of artwork parlicularly appropriale for the Batson arlicle by Thomas M. Carpenler contained in thai issue of The Arkansas Lawyer.

Dear Editor: First let me say thanks for your kind and (from my perspective) insightful review of my novel, IN THE MATTER OF BILLY K. [Tlte Arkansas Lawyer Magazine, Vol. 26, No.2, Apri119921 I was also gratified to find the review in such a fine, professional legal magazine, dealing, it seems, with important issues, such as the one you discuss involving the Women & Minorities Committee. I hope with the election of Governor Clinton more women and AfricanAmericans will share in the economic and political power, and that the more subtle walls of racial distrust will crumble. Among the many reasons I supported Governor Clinton is his sensitivity to the issues your letter addressed. David A, Tate Loudonville, New York

The 1993 Mid-Year Meeting ofthe Arkansas Bar Association January 14-15, 1993 . UALR School ofLaw, Little Rock Call 375-3957 to Register NOW!

il11iLltioll pl'riod tur ,1 I.'.lll"'l' 01 ,ldillll ulldl'r till' ~t.'curitil'''' F\l'll,lngl' Ad tll ,1 1l1,1\ill1t11n llf threl' \·l'.u.... hi . . ,util'!e \\'ill brid-l\' l'\plorl' the Ijllll!Jt dl'l.'i . . illl1, it-.. rnpdd Oil .... l'l"lIritil'... litig,ltilln in :\rk,ln";,l<", dlld thl' l'<.,ulLlnt Tl'<"PIIIl<.,1' Irpm CI)Jl,~rl'<""", but nlprl' 11lpl)rLlnth-, thl . . ,1rllL"il' \\-!l1 rl'\-I<.,it thl' llttl'n-tllr,~ptkn ""lrl)\'j"'lPIl'" III thl' :\rkdll . . .1 ... ~l'curitil' ... :\It <llld till' ignitll.',lI11'l' III thl'<"l' prll\·I<.,illll'" ill lighl III thl' I dlll,pl h'l-i ... il lll.

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JANUARY 1993

l I t . . . ~ h 1 . . 0 ac on lH t'r ntl1l'r pnn·i..;ion . . ot thl' Sl'curitil'.. . F\ch'lngl' Act which l'llnt,lil1l'd .l 1-\'l'(HI.~-~'t."lT limiLltiun . . pl'riod, =illl LS

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"nllll\\'ing thl' SUf"'lTl'll1l' Cl\llft dl'l-i . . illib in I.ll!l/pf ,lnd !lIn !it'dlll nllml'Tllll . . dl'll'nd,lnl . . in ~ll) (l-,~ ,letions t"'ll',~,lll tiling 11lutilln . . tll di~11li ........ till' ~I(l(b) l'I,linls ,1~,11Jl ... t tlWTn \\'hidl Ill-l-UTrl,d 111l1fL' th,lll thrl'l' \'l,<lTS trpm \dlL'n tht.' .1(lllll1 \\,1 . . t",fllll~ht \l(I'-..t lIt thl'se rl1l' Fi~hth Cifdllt III !irllldn'llll l/-l2 '·.2d -lLj~ (~th Clf. IY41), lltlll~ 1..1111,'1 and fun !i(i/I/l ,1J...,(l ,l~"'lplil'd Ihl' I1l'\\' LlIlIpf limiLltipn pt.'ripd rdnl.ldl\"l'1~'. rhi ..... hl)\\'l'\"l'r, W,b not tlll'l'lld Llkr II1 Jl/l}l, SI'Il,llllr RIl'h,Hd Br~',lll, D-\:l'\·., ,11ld ~l'n,ltllr f)lI11dld Riq~ll" D-\lil-h., infrudul'L'd ,1 bill III ClIllgTl'.. . S kllllwn <h Ihl' Sl'l·uritll'.. . Ilrlltl'dilln Act. Lndl'r tl1l' Securitil'.. . Proll'di,nll :\d, lhl' I1l'\\' linlitation pl'ril)d fl lr .l ~ 1(Hb) ,let illll WI Hlld bl' IWll \'t.,<lr... fn Hl1 the di ... co\"l'r~· ut facts . . urrounding till' \·iul.ltinn .lnd undef IlU circunlstanCl'S TnPfl' th<ln ti\'l' ~'l'<lT"", In llddition, l"l'rt.lin cl.linl . . which Wt.'ft.' di . . mi ....sl'd ,1'" ,1 result of I11lltillll'" \\'l'rl' hralltl'd

f11'/1'IUI' 1{1/-..~1I1";':-:" ..:.1·11 ....

J jill/fIt

,1 nd 11m Iki/J11 would bL' fl'lIlst<l tl'd ..'"

" l \. l't 11' .... U 1.. . ,111 1.1 ,1t' or l' \\'1 1 rl'g,lri.. 0 ,1 Sl'dilln 12( I) t',HI"'l' uf action ,lnd L1tl'd th,1t Sl'ction 12< I) liability l·,tend ... tu lllll' "\\'hp Ui..'l'l·...... lulh· ulit'its thl' pllrch,1 . . l', Ilhlti\',1ted ,1t il',l ... t in p,lrt b\' ,1 dl' irl' tu . . l'n·l' hi p\\'n Iln,lnci,11 intl'fl' ... h llf thll"'l' pf thl' Sl'CUfitil' 11\\'lll'f," -I-Sh LS. ,1t h-l-7. \\'hat thl' Suprellll' Cllurt dId npt "'.1\, In ')1I1fe/" i.. . \\'hat l'til'd thl' lIplnlUn \\'otIid h,1\'l' on ... tatl' UHlrt intl'rpret.1tions of " l'llers" undl'r ,lpplicabil' . . t,lte blul' sk~' 1.1\\·S, It \\,ptJid l'l'lll logiLll th,lt it sLlk l'OtHtS ,lfl' lppking to kdl'Lll intl'rprl'Lltion pf ... imiLH fcdl'r,ll . . t,ltUh'.. . , it thl' fedl'r,ll intl'rprd,ltinn changl''''' till' St.1te intl'q1rl'L1til1n I11U . . t dl,lngl' ,11",,,1. :\t Il'a ... t t\\·p . . Lltl' l"llllrh h,l\'l' ,1l'ClTtl'd thi ... inkrprd,lti(ln 1-, \\'hiil' (1l1(' cpurt reil'ctl'd thl' I'lIlfl'r hnlding ,lnd ,lpplil'd thl' "... ub.. . Llntial f,ldllr" te... t. 1'" It i... undl'.lr if :\rk.1n . . ,b l-plIrb will fpll11\\' the I'll/fa casl' pr will in . . tl..1d cOlltinue tll ,lppl\' the ""ubstanti,ll f,lctllr" tl·"1. Illl\n'\'l'r, thl' Ark,llls,l . . SUpfl'llll' (-ourt in (JII/'!- c' \\'"",11/.2'1; ..\rk. IhS. 7·+;" S.\\'.2d Ins (1'1,~~) . . . l'l'l111'd ttl jndic,ltl' thdt it \\lIu1d l"pand thl' dl'finition pI ""'l'l1l'r" dlTl'nding Up(ln thl' f,ld . . in the p,Hticlll,lr (·,l"'e. In l)/I1l~'" \\'!llldll thl' cpurt tllund th.1t tht.' I11Pther pf ,1 sdil'r \\',1'" ,1n ,1gl'nt pf thl' sdil'r .111d thu . . li,lb1l' under thl' :\rk,ln . . ,l ... Sl'curitiL'S :\d bl'CtlUsl' ...lll' h,ld materiall}' ,lidl'd in the "',lle pf that particul.lr ,,'eurit\'. Id., 7-l7 S.\\'.2d at 112. Although till' Illotlll'r, ,lS ,111 ,lgl'nt, fell within the special catl'gory of person~ liable under thl' :\rk,ln ....l" Sl'curitie" Ad (to be discus . . l'd III,frll), thl' re"lJ!t I" an indic,ltiun pf the Ark,ln"',l'" Cuurh \\·illingnl'...... hl appl}' tlw prp\·i ...ipn ... III the :\rLlns,l . . Set"llritil's :\d IlHlrl' brnadh' th,ln thl' pruYi ... inn" pf the Sl'olritiL'.. . r\d. 111 2. SECONDARY LIABILITY The Arkan~,ls Sl'curitil'''' /\(t ,11"'0 nlllLlin~ Sl'ctiun 21--l2-!ll/1(c) \\"hid1 impp . . l'.., li,lbilit\" tor ~l'ctlritil''' \'iol,ltiUlb under Ark. ('Udl' Ann, ~21~-I-2~ I(lh(,l l upon ,1 Spl'Ci,ll Cl.1SS uf peop1l' bl'C,lll"l' of thl'ir rl'lationship with thl' . . dkr. Thi . . group include.. . control pl'rSPlh, p,Htnl'rS, pffit'l'rs, dirl'dpr.... ,Hld ,ltn' l'111plllH'l', brpkerde,lll'r pr ,lgent \,",lP Inatt.'ri,lih "id.., ill till' ..,dlL'...\11\' one tlf thl'"e indi\·idu,l).., (,In l''''C,lpl' li,lbilit\' if thl'~' C.1n ,,}HH\' th,lt the\" did Ill)t knu\\', and in the l"l'rcist.' of rl',l . . on,lble carl', (ould not h,l\"(, kno\\'n, of the l'xistl'ncl' uf the t.lCh b\' re,1 . . l111 pf \\"hich li,lbilit\, i.. . ,lllL)ged tu l'xis1. 2(l The speci,ll gruup whidl "l'l'nlS tu be thl' bruadest, .lgl'nts of sl'lkrs, h,lS been SPllll'wh,lt lirnited b}' thl' definitilHl uf ",lgl'nt" CtlnL1ined in the Ark,lnsa . . Securities :\c1. Sedipll 21--I-211)2(2l definl''' "(lgent" ,h an~' indi\'idu,ll otf1l'r than ,1 bn1h'r-dl'<lkr. \\'hl..) ft:pre.. . enh a brpkl'r-dl'<llvr PI' issuer in t'fil,eting PI' ,lttl'1l1pting tp l'tfl'd purch,l~l'''' or . . all·" (lI sl'curitil'''. Thi ........l·dion furthl'r liTl1its till' ddinitiun tlt "agl'nt" h\' l''\cluding frnl11 thl' dl)finitioll thp ... t' ,1gt'nts \\·ho ft..'pn'sellt thl' issul'r in effecting certain tr.tnsactiolls 12

ARKANSAS LAWYER

JANUARY 1993

l"l·111pft·{ trnnl rq~i"lr.lti()n or n'rt,lin ..,ecuritil's l"l'mptl'd tnHll rq.;i"tr,ltion. 3. AlDERS. ABlTIORS, AI\D CO-C01\;SPIRATORS Thl'rl' i... ,1 dl'\'l'lpping ,1rl'a (II ...t'dlritll'''' 1,1\\- \\'hich rl'Cpgni/l'''' "'l'((llld,lf\' li,lbilit\" '.Indl'r tIll' dl'fll1itipn of " . . l'lil'r" , \\'hich i... "'l'p,lL1tt' ,1nd ap,lrt trtl1l1 the . . l'l..tllld.lI\ lidhilit\· di"'t-ll...,";l,d ,lbll\·l'. Thl're ,He t\\·o Sl'p,lf.1te thcories pf li,lbilitv ,llding and ,lbdting and conspILlc\', Lndl'r l',lch tht'tlr.\-·, thl' defl'lld,lnt, 'llthpugh not tl'chnit',llh' ,1 "l'lll'r, i..; dl'riY,lti\'l'ly tr,lnSp(lSl'd intp ,1 ...l'1kr bl'l',ltl"'l' of hi" knlHdl'dgl' ,lnd actinn ... in till' ...ail' tll t1w sl',:uril\·. Bnth thl'llril'.. . "'l'l'Il1l'd tll h(lYl' l'\'(lh'l'd hl'l-,lll"'l' thl' u1urh did IH1t \\·i ... h for putl'nti,llh' li,1bll' dl'!l'lldanh ttl l''''t',lpl' li,1hJllt~' because ()1,1 "tl'chnic,11 g,lp" in tht' ... L1tl"'" l"lul' ... k\· l,lW (llYl'L1gl' '\1)\\' th,lt fillllf)'- h,1..; liIllitl'd tl Il'dl'r,ll . . l'curitie:-. d,lilll, thl' nnlrts ma~' hl' c,llll'd upon to further dl'finl' the"l' nl'W thl)Orie... undl'r sttltl' blul' sky laws. ,1. Aiding and Abetting Liabilitv ,-\Ithtlugh the ;\rk.ln"',b ,,:tlurh h,l\'l' n(lt "'}1l'l'iti(,llh' rl'Cogni/l'd (liding ,1nd ,1bdtin~ li,1bilit\' undl'r Sectip~l 2")--I-210h(,1)( I HB), thl' fl'dl'r,ll t-nurh 11,1\-l' lI111\" " rl'cngni/ed th,1t tlw krIll .....l'llt-r· undl'r Sl'dipn 12 tlt till' Sel"uritil's :\d includl'd tht1"l'}-1l'rsl1Ib \dHl ,lid ,lnd (lbl't till' technic.ll :-'l'ller. Thl' ulndud (lnd ultin1,ltl' li.lbilit~· of thl' ,1idl'f ,lnd ,1b,,·ttor i.. . judged b~' till' s.une "Subst,lnti,ll f.ldor" te...t di . . cu~ ...l'd ";lIp!"ll,:!.1 This pllll'nti,,1 It,lbill[" Illa,' h,lll' bl'l'n ,ltkdl'd b,· thl' !)jlllt'I' deci . . illn, ht~\\·l'\-~'r. tht' Suprl'ml' CtlU~t "'pl'Cltic,llh- ... t.lted th,lt it \\',1S nut t-llllsldl'ring \dll'tlll'r ci\'il 11,1bilit~· fllr .liding ,1nd .l11dtIng \\',1'" .lpprtlpn,llL' undl'r I..:,l'ditlll 12, I'll/!(", -1-,"\/1 L_'"' .It h-lS. ;\lthtllI,'l..;h thl' r\rk(ln";,h ... t,lte (uurh ,Hl' n(lt bpulld b\' thl' I)u/fer dl'cisiun, their COlbidl'r,ltinn ut <1n (liding and ,1bL'tting C,lUSl' pf ,ldion will depend Uptl11 whether thl'}' fed the in\'l'stpr in questiun needs prokdion npt ,lln'ad\' prp\'idl'd b\' thl' /\rk,ln"',h Sl'cuntil'''' :\d. b. Conspiracy TIlt' nlll ... pir,ll-~- tht'tln' i thl' nt'\\·",... t pUkntldl C,HlSl' pf ,ldilln under till' ..\rk,ln a ... Sl'dlritil'''' :\C1. Lndl'r this tlwor~', if ,1 cunspir,lC\' i found bd\\'l'l'n thl' technical sl'lkr ,lnd till' plltl'ntl"l dl'knd,lnl, th,lt p,l\l'nti,ll lkfend,lnt \\'oll1d bl'conll' ,1 sl'lll'r. In pther \\'urds, the .lct of Pill' uf till' cOllspir,ltors i.. . ,In dd of all. Courts in other jurbdictiolh ha\'l' found ,1 dl'f,,'nd.lnt to bl' a ~l'I1l'r h~' \-irtllt.' ot hi" p,lrticip,ltipll 111 a t·nn . . pIf,lcy with till' tl'd1l1ic.lI . . l'IIl'r.:!.:!. CONCLLSION :\lthtlugh thl' :\rktln..;a Sl't-uritil'''' :\,,:t h,l . . hl'en l'n,lctl'd tor Illan.\-· \'l'ar , till' . . hortening of the limit,ltiun . . pl'riud ot a It'dl'r,ll "'l·curitie.., callse of ,lction ,b a result of LI1I11pf Ill,l\' C,ltlSe nl'\\" light to be shed on this Art. Thl' "ntirip,'lL'd rl'sult llt this ch<1nge shlluld

DISCIPLINARY

MICHAEL RAYMOND SALAMa Michael Raymond Salamo, formerly of Fayetteville, Arkansas, has been disbarred following prosecution of an action for disbarment in the Washington

County Circuit Court. The complaint alleged, inter alia, that Mr. Salama's course of conduct over a period of years constituted professional misconduct to such a degree as to render him unfit to practice law. From 1985 through 1990, Mr. Salamo was formally disciplined for violations of the rules of professional conduct on five separate occasions. The Committee had suspended Mr. Salama's law license in the two most recent disciplinary actions.

Mr. Salamo, having filed an answer to the complaint, failed to respond to the Committee's motion for summary judgment. The circuit court granted summary judgment and barred Mr. Salamo from practicing law in the State of Arknnsas. Mr. Salamo did not perfect an appeal from the judgment and order of the court. Upon that order becoming final, the Committee petitioned the Arkansas Supreme Court to order the disbarment of Mr. Salamo and to direct that his name be removed from the list of attorneys permitted to practice law. The Supreme Court granted the petition by per curiam order of September 21, 1992.

MARK BRADEN CHADICK Mark Braden Chadick, Pine 8luff, Arkansas was suspended from the practice of law for a period of three (3) months for violation of Model Rules 1.3, 1.4(a), J.l6(d), 8.4(e) and 8.4(d) as a result of a complaint by Billy Cannon. Mr. Chadick filed notice of appeal from the action taken by the Committee at the hearing cond ucted on July 18, 1992. The Committee stayed the suspension pending disposition on appeal. Subsequently, Mr. Chadick moved to dismiss the appeal and the suspension went into effect on October 3, 1992. In his affidavit of complaint and

14

ARKANSAS LAWYER

ACTIONS

/

ADVISORY

testimony, Mr. Cannon stated that he was injured in a slip and faU accident on the premises of a Piggly Wiggly store while making a delivery on January 12, 1988. He employed Mr. Chadick in March of 1988 to pursue his claim for worker's compensation. It was Mr. Cannon's understanding that damage claims against the premises occupant would be pursued on a contingent fee basis. From March 16, 1988, through June 27, 1988, attorney Chadick corresponded with the workers' compensation insurance carrier and the client. The correspondence, for the most part, related to settlement of the workers' compensation claim, attempts to locate a known witness to the accident and negotiations with the insurance carrier to share in the litigation costs in the contemplated lawsuit against Piggly Wiggly. Mr. Cannon's workers' compensation claim was satisfactorily resolved in December 1989. The client had no communication from his lawyer for a considerable period of time following disposition of the workers' compensation claim. He occasionally telephoned Mr. Chadick and was informed that the tort claim was proceeding normally. The client, upon receiving a letter from Mr. Chadick in April 1988 requesting information about the prospective witness, had discov~r~ the person's whereabouts and driven to Greenville, Mississippi, to contact the potential witness. Mr. Cannon stated that the person's name and address were provided to the attorney. In June of 1988, the subrogated insurance carrier had written Mr. Chadick that it would provide up to $1,000 of the estimated litigation expense and would compensate the attorney on a contingent fee basis of one-third of their recovery. On March 1, 1991, Mr. & Mrs. Cannon went to the lawyer's office to discuss the action against the Piggly Wiggly store. Mr. Cannon was informed that $2,000 would be required from him for costs and expenses to prosecute the claim. He did not have funds available in that amount. Mr. Cannon was somewhat confused because he understood the representation to be on a contingency basis and no previous mention had been made concerning his obligation to advance the

I

OPINIONS

litigation costs. The client left the office with the understanding that he was to contact Mr. Chadick the following week to determine if arrangements could be made to pursue the case. Before Mr. Cannon was able to get back to the attorney, his wife received a call from a representative of the Piggly Wiggly Stores. The person inquired about obtaining a statement from Mr. Cannon in connection with a lawsuit filed by the subrogated insurance carrier against Piggly Wiggly. She was also advised that no suit had been filed on Mr. Cannon's behalf against the store and, in any event, the statute of limitations had expired. Mr. Cannon, in a letter of March 13,1991, advised Mr. Chadick of the information received by his wife and requested return of his files. By letter, dated March 18, the attorney advised that Mr. Cannon could retrieve his files by coming to the law office and executing a release, a copy of which the attorney had enclosed. Mr. Cannon was advised by other counsel that the release would absolve Mr. Chadick of any potential claims in connection with the representation. onsequently, Mr. arulon declined to execute the release. Additionally, on October 26, 1991, Mr. Cannon again contacted the prospective witness to the accident and was informed that the lawyer had not, nor anyone on his behalf, ever contacted the witness. Mr. Chadick's response and testimony admitted representation of Mr. Cannon in his workers' compensation claim but denied any agreement to represent Mr. Cannon on a contingent fee basis against Piggly Wiggly. The lawyer explained the benefits which the client could expect from the workers' compensation claim but advised him of the potential difficulties in pUISuing the claim against the store. Mr. Chadick stated he told the client that he would not pursue a third party claim on a contingent f~ and abu advance the litigation expense. Mr. Cannon was advised that the lawyer would pursue the claim against the store only on condition that the insurance carrier or Mr. Cannon pay the entire litigation expense. A copy of the insurance company's letter of June 27,

JANUARY 1993

_I

l

DISCIPLINARY

1988, wherein the company agreed to share expenses not to exceed $] ,000 on its part, was forwarded by the lawyer to Mr. Cannon. The client subsequently informed Mr. Chadick of his inability to pay litigation costs and again was told that the matter would not be pursued without full payment of the cosls. Upon the successful disposition of the workers'

compensation

claim

on

December 20, 1989, the potential claim against Piggly Wiggly was discussed. Mr. Cannon again declined to advance the litigation costs and indicated a desire to abandon the claim. Mr. Chadick advised Mr. Cannon to contact the lawyer if he changed his mind. Considering the matter concluded, Mr. Chadick took no further action on the case. In May, 1990, the complainant contacted the lawyer regarding some financial matters and also inquired about the Piggly Wiggly case. He was still unable to provide advance costs and Mr. Chadick informed him of the statute of limitations expiration date of january 12, 1991. Mr. Cannon made no response and the matter was not discussed further until the Cannons appeared in the lawyer's office on March 1, 1991. The meeting was brief and concerned the client's financial situation and work problems. Mr. Cannon mentioned pursuing the Piggly Wiggly claim and Mr. Chadick reiterated the requirement for prepayment of expenses. Because the lawyer did not have his case file before him, he was unaware of expiration of the time in which to file suit. Mr. Chadick was not aware of any lawsuit filed by the insurance carrier and, until receipt of Mr. Cannon's letter of March 13, 1991, was not cognizant of the running of the statute of limitations. Since the lawyer's recollection of the previous events and discussions conflicted with some of the comments in Mr. Cannon's letter, he concluded that no useful purpose would be served by a response. However, pursuant to the client's request for return of his case file, he was sent a release form which Mr. Chadick described, basically, as an acknowledgment of receipt of the files and a release of responsibility for further legal representation. Although the attorney acknowledged that his correspondence with the insurance company might have been viewed as his undertaking legal representation for Mr.

ACTIONS

/

ADVISORY

Canon's third party tort claim, he stated that was not the intent or purpose of the letters.

JUDICIAL ETHICS ADVISORY COMMITfEE OPINIO S Follawin8 are summaries of tire advisory opinions issued by tire Judicial Etllics Advisory Committee from requests for opinions received since tl,e Committee's creal;oll, Jllly 1, 1991. Copies of Ihe filII opit,ioflS are available upon request from the Judicial Ethics Advisory Committee, 4th & Cellier Streels - SlIile #1060, Lillie Rock, AR 72201. Copies are also available 01 Ihe Supreme Court Library and the law school libraries in Fayetteville and Little Rock and are included iI' the LAw Office Information Syslem CaseBase for Arkallsas.

Advisory Opinions #91-01,91-02, and 91-03 The first three requests for advisory opinions received by the Judicial Ethics Advisory Committee revolved around the issue of nepotism. In each case the requesting judge asked if the continued employment of his spouse or relative under the unique circumstances of each employment situation was a violation of Canon 36(4) of the Code of judicial Conduct. In each of these instances, the requests did not meet a threshold requirement to go before the Judicial Ethics Advisory Committee. That threshold requirement is that the request for an advisory opinion relate to prospective conduct only.

Advisory Opinion #91-04(November 22,1991) The Arkansas judicial Ethics Advisory Committee issued an advisory opinion staling that a judge may serve on a bank's advisory board, that the judge's ownership of approximately 2 % of the voting stock of the bank constitutes a financial interest that requires disqualification in all cases in which the bank is a party, and that the judge should consider divesting the stock and resigning from the board if frequent disqualification is required. The Committee also advised

OPINIONS

that the judge must disqualify himself from cases filed or tried by his brother-inlaw, the city attorney, and must not issue warrants at the request of his brother, the deputy prosecuting attorney. The Committee also advised that the judge is not precluded from appointing his wife as an unpaid deputy clerk but that it would be better not to do so, although she could still occasionaUy do general secretarial or administrative work. The committee staled that if the judge still considers appointing his wife as a clerk, he should do so only if she is qualified, the position is a deputy position, the position is temporary and part-time, the appointment is on a volunteer and philanthropic basis with no perceived present or future financial benefits (either direct or fringe) to the relative or the judge, and the volunteer service provided by a relative is not considered with respect to increases in the judge's salary. In response to a question about what financial reports judges must file, the Committee stated that the request was not made in accordance with Procedural Rule 3 because it was not accompanied by a concise memorandum setting forth the judge's own research and conclusion.

Advisory Opinion #91-05 (November 19, 1991) The Arkansas judicial Ethics Advisory Committee issued an advisory opinion stating that a judge may not solicit funds in person, by telephone, or by letter from individuals or corporations to support a reception to be held following a continuing legal education seminary sponsored by the Arkansas Association of Women Lawyers nor may the judge solicit funds on personal stationery from her residence, but the judge may suggest to the organization the names of potential donors and participate in the planning of fund-raising, and non judicial members or employees of the organization may contact donors if they are careful not to suggest that they are acting on behalf of or with the knowledge of the judge. The Committee noted that Canon 4C implies that a judge may personally participate in "private" fund-raising, but stated that private fund-raising should be interpreted as limited to narrow situations involving, for example, fund-raising among relatives and other judges.

The book's 42 chapters are divided into ten separate parts, Part I provides an overview of many interrelated principles that are fundamental to the development of a quality law practice, Chief among these principles nrc the role of leadership in developing a properly focused and quality law practice, the continual need for reevaluating the long-term goals of one's practice as part of the long-range planning process, and the need to develop or increase the preventive law aspects of one's practice, The author describes this last concept as the need to move one's practice from a "reactive" to a more "proactive" mode. Indeed, these concepts are intertwined and are interspersed throughout every topic discussed in the book. Parts II, lIT, IV and VI contain a more in-depth review of these principles. Parts V and VII specifically discuss ways to effectively recruit, train and evaluate lawyers and also address other aspects of developing a successful career path for both associates and junior partners. Parts VII, IX and X contain a review of a wide range of subject of particular interest to those engaged in the administration and management of an "in-house" practice. Many lawyers, particularly those who have risen to the position of senior partner in a law firm or a senior a ttorney or associa te genera I counselor above in a corporate legal department, will find little that is either startling or new in LEADI G A LAW PRACnCE TO EXCELLENCh. This is, of course, as it should be. In recent years national and state bar association have conducted numerous seminars and published a number of articles, pamphlets and books which address many, if not most, of the principles necessary to improving the overall quality of a law practice. onetheless, the book does serve as a comprehensive compilation of these fundamentals, and as such can be used a a "primer" on these principles for the senior managers of corporate legal departments and senior partners 18

ARKANSAS LAWYER

JANUARY 1993

of law firms serving in and "in-house" capacity. This is not to say that the book merely contains a rehash of wellestablished and exhaustively analyzed practice pointers. The author does take several positions that are not "mainstream." While LEADING A LAW PRAcnCE TO EXCELLENCE will be a valuable resource for many, it is also subject to criticism. Its focus on the needs of corporate counsel is narrow. The nature and scope of the principles discussed should provide benefits to virtually all lawyers who are interested in improving the focus and quality of their practice. A second criticism is that the fundamentals essential to a quality law practice are repetitiously interspersed throughout the bouk. The author acknowledges this in his Introduction. 2 If the reader approaches the book to explore selected topics of interest rather than reading it from cover to cover, this should not pose a major irritation. In closing, I would recommend the

I

book to all attorneys interested in refocusing their practice and improving the overall quality of their legal services. While the book contains few startling or truly innovative ideas, it provides an excellent review of many ideas and practice pointers gleaned from seminars or other books or pamphlets published on the subject of improving one's law practice. I suggest that those who attempt to read the book from cover to cover will find it tedious to do so because of its length and because of the inherent repetition. One thing that the reader will not find in the book is a bibliography of other articles and books on related subjects, and I believe that this omission may be the book's biggest failing given the book's overall length and purported scope. I For a humorous look at the real world problem of lawyer bashing, see Lawrence Savell, Wily Are Tirey Picking on Us?, A.B.A.)., November, 1992, 72.

2

LEADING A LAW PRACTICE TO at 5.

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PRESIDENT'S

MESSAGE

Clintonls Election: ACall to Assure Justice for All By John P. Gill

The lesson of November 3, 1992, is abundantly clear that the American people want change in not just their government, but their society as well. Lawyers are a significant and visible segment of society, and we therefore cannot take umbrage that the tassel loafer insults were buried in a rout. The lawyer's duty to represent the unpopular will always give lawyer-bashers a forum, and the slightest act of arrogance, incivility and indifference to clients, witnesses and jurors will always justify public dissatisfaction. The message from Bill Clinton, an Arkansas Bar Association member and holder of bar number 73019, was extraordinarily clear and quite plan. He said, "I want an America that values the freedom and the dignity of the individual." This simple objective was central to his

new covenant. And it seems the people too wanted this new covenant that values individual freedom and dignity, for November 3rd was, in Bill Clinton's words, " . .. a victory for the people who work hard and play by the rules, a victory for the people who feel left out and left behind ..." As a result of that victory though, he will take an oath to become the President which merely says: "I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." Upon taking his oath to become a lawyer, however, he made a much deeper commitment to freedom and dignity of the individual when he swore: I will not reject, from any consideration personal to

myself, the cause of the impoverished, the defenseless, or the oppressed. [ will endeavor always to advance the cause of justice and to defend and keep inviolate the rights of all persons whose trust is conferred upon me as an attorney at law.

(You and 1 took the same oath.) Bill Clinton was elected President of the United STates in large part because he understood his Arkansas lawyer's oath, made it a serious commitment, and integrated it into his privilege of being a lawyer. While we can take pride that an Arkansas lawyer will now lead the United States, pride alone won't do it. We must remember our own oath, which in its simplest terms says: 1 will place the client first. Some lawyers will serve on the Clinton transition team, others as White House

Counsel, and still others in the numerous gla morous jobs which are idolized in the media. The rest of us have an even greater opportunity to fulfill our own destiny and have the most important job in the Clinton era. We who stay at hame are the ones who will really craft Bill Clinton' vision of an America which values the freedom and dignity of the individual. And what a splendid opportunity tha tis, because tha t vision will not materialize from a cabinet post, but from lawyers' hard work in DeQueen and Des Arc and DeWitt and in other places like Hope.

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Changing Partners: Comparisons to Your Current Situation By Jerry Schwartz

At this time of the year many partners get restless with their current partnership arrangements. The causes may be many, however, leadership and finances are generally the two prime reasons for discontent. Partners begin to look elsewhere or firms that are interested in expanding may show an interest which fuels the restlessness. Regardless of whether the causes are internal or external, certain areas should be investigated before the partner makes a decision to move to greener pastures. James Larry Green, an author and speaker on law office management topics, ou tlined some of the following areas of concern for consideration; COMPE SATIO SYSTEM Determine whether the compensation system at the new firm is an objective or subjective system. If the system is objective determine what criteria are used in the process. It is important that you fully understand the criteria and that the firm has a reporting system for you to review on a periodic basis to determine your progress. If the system is subjective, determine who decides

and who tends to reap the rewards of the system. Always examine the system personally. Don't leave your compensation to someone's interpretation of the system. FINANCIAL STATEMENTS AND MANAGEMENT REPORTS Exa mine the financial statements of the firm for the past few years. If the firm does not have monthly financial statements, it is difficult to determine the financial strength or weakness of the firm. A substitute for the financial statements is the annual tax return of the organization. It will provide you with some information on the financial condition of the firm. A firm that does not bother to produce monthly financial statements is not taking care of the business side of the practice and should be looked at very carefully. Management reports should also be reviewed to determine the amount of hours worked, billed and written off by the various lawyers. The current work in process and aged accounts

receivable should be examined to insure that these two major assets are being properly managed. If there appear to be problems in these areas then the billing system may be weak which could affect your compensation under both a subjective and objective compensation system. INTER-PARTNER RELATIONS AND MANAGEMENT Review the minutes of partner meetings to determine that all partners participate in partnership meetings. Are significant issues discussed at meetings or do the partners dwell on the minor issues? Check for unresolved topics, which is an indication of philosophical differences among the partners or failure to deal with tough issues. Find out who is in charge and whether that person's philosophy is in line with your own philosophy of managing the firm and the practice. OPERATIONS Closely review the physical plant of the firm. The public areas of the firm must portray an image that will satisfy your clients. The offices, conference rooms and

"back office" areas should be adequate to get the job done. The office should be in good repair and organized. Check to see tha t t he firm is using curren t equipment and technology. Obsolete equipment may be an indication that the firm is not profitable or that a major expenditure will be needed shortly to purchase the necessary equipment and technology. The staffing of the firm should also be considered at this time. If your current secretary is not moving with you, will there be adequate support for your practice? If you require a dedicated person, will other partners and staff be comfortable if ratios are changed for your practice? Other issues including capital contribution, practice growth and support, professional liability coverage and the partnership agreement should be reviewed. You owe yourself an exhaustive examination of the prospective firm, because you do not want to make a capricious decision to leave your current firm to end up in a situation which is worse that the one you are leaving. When all is examined you must weigh your knowledge of the new firm with what you know to be true in your current firm. Change should only occur after careful reflection. Partnershi p should not be taken lightly. It is not just a financial arrangement, it is a strength to better serve the clients who place their trust in you.

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By Paula Casey Despite its inability to override presidential vetoes l and the inability of the Senate to break filibusters,2 the 102nd Congress considered and passed a substantial amount of legislation. 3 This article will review only a small portion of that legislation and will also preview legislation that is likely to be introduced and considered during the next Congress. ENERGY: The 102nd Congress began with an energy-related war in the Persian Gulf and ended with the passage of a comprehensive energy strategy bill,' one of the few major pieces of legislation to emerge from the 102nd Congress. Congressional leaders wasted little time in introducing major energy bills in both houses of Congress S in early 1991 following the start of the war. A cloture vote" on the Senate bill failed in early November, 1991, and the bill was withdrawn from the floor. When the Senate reconvened for the second session, another version of the energy bill was introduced.' The new version was stripped of the controversial provision to open ANWR (the Arctic National Wildlife Refuge) to exploration and drilling, and the provision to boost CAFE (corporate

average fuel economy) standards which would force automakers to build more fuel-efficient cars. The legislation finally passed both houses during the last days of the Congress and was sent to the President, who signed it on October 24,1992. 8 The energy bill affects the production and use of all types of energy. It amends the Public Utility Holding Company Act of 1935 to create a new class of independent power producers, called exempt wholesale generators, to produce electricity to sell to public utilities. Licensing procedures for nuclear power plants were streamlined. Government agencies, both federal and state, and eventually some private companies will be required to purchase vehicles that operate on alternative fuels. A number of tax provisions were part of the final bill, including a deduction for alternative fuel vehicles and for converting vehicles to alternative fuels; an increase in the excise tax for ozone-depleting chemicals; permanent extension of a tax credit for solar and geothermal energy; write-offs for independent oil and gas drillers, even if they pay the alternative minimum tax; and a provision to allow employers to provide tax-free mass transit

subsidies of up to $60 per month with a cap of $155 per month on tax-free, employer provided parking benefits which are currently unlimited. Financing health benefits for retired mine workers was one of the most controversial provisions of the bill. The United Mine Workers health care plan was depleted, leaving approximately 120,000 retired miners without benefils. The plan is being replenished by moving money from the union's pension fund and through the interest on a tax that coal companies pay for reclamation work. The l03rd Congress may consider some of the issues that were dropped from consideration this year in order to get the energy bill passed. CAFE standards and the opening of the Arctic ational Wildlife Refuge are two of those issues. Questions concerning offshore drilling also remain to be addressed. CIVIL RIGHTS: The 102nd Congress acted to "reverse" several decisions by the United States Supreme Court concerning employment discrimination and civil rights9 and to expand the remedies available under Title vn of the Civil Rights Act of 1964. The bill 10 provides for compensatory and punitive damages in cases of intentional discrimination and for jury trials. The

amount of damages which may be awarded is capped according to the size of the employer's workforce. The bill made its way through Congress only after extensive negotiations and only after a similar bill" was vetoed by the President during the 101st Congress.

The loan limit for FHA (Federal Housing Administration) singlefamily home loans would be raised to 95 percent of the median home price in the area or 75 percent of the 1992 loan Umit set by the Federal Home Loan Mortgage Corporation, wltichever is less. An unpopular law

Infrastructure Acti 6 was signed into law before the adjournment of the first session of the 102nd CongresS. This authorization bill allows states and local governments more flexibility in spending their share of the Highway Trust Fund, extends through 1999 two and half cents of

"The 102nd Congress acted to reverse several decisions by the United States Supreme Court concerning employment discrimination and civil rights . .." THE HOUSING BILL: A twoyear reauthorization of federal housing programs was cleared by Congress during the final days before adjournment. J2 A formula for local government contributions for new

construction and rehabilitation of federal housing under the HOME Investment Partnersltips Act is part of the final bill. An authorization for the HOPE (Homeownership and Opportunity for People Everywhere) project, designed to allow public housing tenants to purchase public housing, also includes a program to teach young people job skills through employment on federal housing construction projects. Provisions enacted in 1990 to preserve the supply of federally assisted housing were reauthorized. Elimination of lead based paints from both private and public housing and protection of workers exposed to lead are goals of the bill. One of the most contentious issues addressed in the housing bill was the issue of "mixed housing." Tenants of federal housing projects that once housed only the elderly feel threatened by an influx of younger, disabled tenants, many of whom are mentally disabled or drug abusers. Separate facilities may be designated for the disabled and elderly under the terms of the bill, but the designations must be approved by the Department of Housing and Urban Development. Preference may be given to the elderly by owners of federally subsidized housing so long as at least 10% of the units are set aside for the disabled. 24

ARKANSAS LAWYER

JANUARY 1993

that capped the amount of closing costs that could be financed in an FHA loan at 57 percent was llited by Congress in an earlier bill. 13 The housing bill authorized, for the first time, a program aimed at addressing the problems of homelessness in rural areas and reauthorized the Stewart B. McKinney Homeless Assistance Act. Programs for homeless veterans were approved as part of separate legislation." The House and the Senate cleared bills to strengthen regulation of government sponsored enterprises,1S but the two houses were never able to conference the bills for procedural reasons. The two major government sponsored enterprises, Fannie Mae (the Federal ational Mortgage Association) and Freddie Mac (the Federal Home Loan Mortgage Corporation), have an estimated combined liability in excess of $1 trillion dollars. Out of concern that taxpayers might eventually be at risk if the government sponsored enterprises suffered financial difficulties, members of Congress were anxious to find a vehicle to move the legislation. A compromise bill was attached to the conference report on the housing bill. The compromise creates an independent regulator within the Department of Housing and Urban Development to regulate the entities and to write riskbased capital standards to ensure that the entities can survive economic fluctuations. HIGHWA Y BILL: The lntermodal Surface Transportation

the five cent gas tax increase which would have expired in 1995, and increases the amount of funding CABLE TELEVISIO : Legislation to allow the Federal Communications Commission to regulate rates for basic cable television services'7 was the first and only bill to survive a veto by President Bush. The law also regulates the relationship between cable operators and their competitors, such as satellite operators, and requires cable operators to get

permission from broadcasters to retransmit over-the-air Signals. COMMODITIES FUTURES TRADING COMMISSIO : One of the last pieces of legislation to clear the Senate was the Commodities Futures Improvements Act of 1991. 18 Spurred by the investigation and inclictments of commodities traders in Chicago, legislators sought to restrict dual trading, require more extensive record keeping of transactions, resolve questions of jurisdiction between the Commodities Futures Trading Commission and the Securities and Exchange Commission over new financial products that have characteristics of both securities and futures, and provide more enforcement authority for the Commodities Futures "Trading Commission. CHILDRE : A bill to require consumer credit agencies to include child support debts on credit reports 19 was presented to the PresideXlt for his signature. Willful failure to pa y child support may result in federal criminal action against the nonpayinf; parent

as a result of bill passed during the last days of the session. 2o A bill to promote judicial training for child custody cases 2 ! and a bill to promote the use of expert witnesses in domestic assault cases" were also approved before adjournment. TAX: After failing to override a Presidential veto of the Tax Fairness and Economic Growth Act of 199223 last March, Congress made a second attempt to enact a tax bill before the end of the session. H.R. 11 began as an attempt to aid urban areas following the Los Angeles riots bu t became a magnet for dozens of unrelated provisions. The urban aid was in the form of enterprise zones that would qualify for special tax incentives and federal assistance in order to attract businesses to the area. The final version of H.R. 11 created 50 zones, half in urban areas and half in rural areas, with tax breaks expected to total approximately $2.6 billion over a five-year period. Businesses located in the zones would receive a 15% credit on the first $20,000 in wages paid to employees. Purchases of stock in businesses in the zones would qualify for deductions up to $25,000. Other incentives included accelerated write offs for property and a capital gains tax cut of 50% on zone investments held for five years or more. Other provisions unrelated to urban aid included extension of several temporary tax provisions, known as the " ex tenders;"24 restoration of IRA (individual retirement account) benefits for most taxpayers; penalty-free IRA withdrawal for first-time home purchases or for housing replacements and repairs for victims of recent natural disasters, as well as for education and medical expenses for the unemployed. Restoration of the passive loss deduction, breaks for heaVily indebted real estate investors, and a provision allowing homeowners to roll losses from home sales until the losses can be deducted from ordinary income were all designed to assist the ailing real estate market. Other industries would benefit from a repeal of the excises taxes on luxury

items, such as furs, jewelry, personal airplanes, and boats. The threshold for application of the excise tax to luxury automobiles, which is currently $30,000, would be indexed to inflation. The $100 annual assessment on pleasure boats would be repealed. Employers would be given a credit equal to the amount of payroll tax paid on employees' tips. Charitable contributions would be exempt from the alternative minimum tax. H.R. 11 would raise revenue by increasing the amount that taxpayers who make estimated tax payments would have to pay in order to avoid underpayment penalties; capping the moving expense deduction; closing a loop-hole that allows purchasers of failed savings and loans to receive double tax benefits; extending estate tax rates for large estates; shortening the write off period for intangibles; disallowing business expense deductions for club dues and for travel expenses for spouses; increasing the Withholding rate on bonuses; and not paying interest on tax refunds if the refund is mailed within 45 days. Congress delayed sending H. R. 11 to President Bush so that he would not be forced to decide whether to sign the bill until after the election. The tactic, designed to improve the chances of getting the bill passed, failed. President Bush vetoed H. R. 11 and the l03rd Congress will probably consider a tax bill in 1993. EDUCATION: A higher education authorization bill 2S which, among other things, increases the grants and loans available to middleclass students was signed into law on July 23, 1992. A bill designed to improve elementary and secondary education, the eighborhood Schools [mprovement Act,26 was approved by the House and the Senate but died when the Senate failed to invoke cloture on the conference report 27 after threatened filibusters. Several smaller education bills were approved and igned into law.28 HEALTH CARE: Chief among the issues never addressed by the 102nd Congress that will most likely be addressed during the next Congress is health care. The

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combination of soaring health care costs, increasing numbers of uninsured individuals, and the lack of federal, state, and local money will make the health care problem one of the most difficult facing the 103rd Congress. A number of bills were introduced during the 102nd Congress that may provide a preview of the kinds of solutions that the next Congress will consider. 29 CAMPAIGN FINANCE: A bill JO to set voluntary limits on campaign spending by tying the limits to public financing, limiting contributions by political action committees, and controlling independent expenditures in federal campaigns was passed during the 102nd Congress. The Senate failed to override a Presidential veto making campaign finance a political issue in 1992 and priority legislation for the 103rd Congress.

penalties for crimes involving guns, and extended the death penalty to more than 50 federal crimes. When the Senate failed to invoke cloture on the crime bill for the third time, an unsuccessful attempt was made to move the Brady bill, whicll requires a waiting period for the purchase of handguns and was part of the crime bill, as separate legislation. 33 Other crime measures were successfully passed. A bill to give federal courts jurisdiction over carjacking crimes and impose a maximum penalty of life in prison passed easily during the last days of Congress. 34 A bill to increase the penalties imposed on financial institutions for money laundering35 was attached to the housing bill路 36 Revocation of institutional charters by federal regulators is the toughest of the new penalties for federal

opposed by abortion opponents. The Majority Leader of the Senate, who has the power to designate the first five bills of any new Congress, vowed to use his power to designate this bill as 5.1 and keep the Senate in session during the first week of the new Congress until the bill is passed." ENDNOTES 1. President Bush vetoed 36 bills from the beginning of his term as President until the sine die adjournment of the 102nd Congress on October 9, 1992. Both houses of Congress voted to override only one, the cable television bill, S. 12, 102nd Congress, 2nd Sess. (1992). 2. A filibuster in the Senate can only be ended by agreement or by invoking cloture, which limits debate on the matter to a total of 30 hours, limits the time individual Senators may speak, and requires that all amendments to the pending matter be filed in advance and that the amendments must be germane, both as to subject matter and scope. A three-fifths vote of the Senate, or 60 VOles, is required to invoke

"Chief among the issues never addressed by the 102nd Congress that will most likely be addressed during the next Congress is health care." FAMILY LEAVE: A bill to require employers to provide family leave to employees 31 died when the House fell 27 votes short of the number necessary to override a Presidential veto. The bill would have required employers to allow most of their employees up to twelve weeks of unpaid leave to care for newborns or ill family members. Businesses with fewer than 50 employees were exempt under the bill and only employees who had worked at least 25 hours per week during the preceding twelve months would have been eligible for the leave. Family leave legislation will undoubtedly be considered in the 103rd Congress. CRIME: A crime bill 32 tha t passed both houses during the first session of the 102nd Congress died when the second session adjourned after the Senate failed three times to invoke cloture to forestall a threatened filibuster. The bill would have limited habeas corpus review, imposed new 26

ARKANSAS LAWYER

JANUARY 1993

institutions while state-chartered institutions could lose federal deposit insurance coverage. The bill also authorizes fines and other penalties. ABORTION: The House sustained a veto which killed the Title X Pregnancy Act of 1991,37 The bill was introduced after the United States Supreme Court upheld the Administration's regulation, known as the "gag rule," restricting abortion cuunseling in family planning clinics that receive federal funds. 38 The rule will likely be the target of legislation in the next Congress. FoUowing a Presidential veto of a bill 39 to reauthorize the National Institutes of Health and provide research into health issues of particular concern to women, a similar bill was introduced. 40 The legislation, which contained provisions overturning an Administration ban on the use of aborted fetal tissue for tissue transplantation research, was

cloture. Standing Rules of the Senate, Rule xxn, par.graph 2. 3. A total of 1,544 measures were introduced in the Senate and 2,714 were introduced in the House during the 102nd Congress. The Senate passed 652 and House 746 bills, resolutions, concurrent resolutions, and joint resolutions. 138 CotlgressiolltllRecord 145,01332 (daily ed. October 9,1992). 4. S. 2166, 102nd Congress, 2nd Sess. (1992). 5. S. 341, 102nd Congress, tst Sess. (1991) which was later reported from Committee as S. 1220, 102nd Congress, 1st Sess. (1991), and H.R. 776, 102nd Congress, 1st Sess. (1991) were introduced in early February. 6. note 2, supra. 7. S. 2166, 102nd Congress, 2nd Sess. (1992). 8. H.R. 776, 102nd Congress, 1st. Sess. (1991). 9. Ward's Cove Packing u. Alltonio, 109 S.Ct. 2115 (1989), a plaintiff in a Title VII disparate impact case must prove specifically the discriminatory employment practices that result in a disparate impact rather than merely proving discriminatory impact of the employer's practices in general or simply showing a statistical imbalance. Price Waterhouse v. HopkillS, 109 S.Ct. 1775 (1989), once a Title VII plaintiff can prove that gender played a role in an employment decision, the employer may avoid liability by proving that

the same decision would have been made even if gender had not been taken into account. Martin v. Wilks, 109 S.C!. 2180 (1989) a person discriminated against by a civil rights settlement in which he did not partidpate and was not represented has a right to challenge the settlement. Lorance v. AT&T, 109 S.Ct. 2261 (1989), the statute of limitations for Title VII commences when a discriminatory system is imposed, not when the "concrete effects" of the system become obvious. Patterson v. McLean Credit Union, 108 S.C!. 1419 (1989), Section 1981 extends only to the formation of contracts and does not cover the employment relationship after the contract has been established. 10. S. 1745, 102nd Congress, 1st Sess. (1991). II. S. 2104, 10lst Congress, 2nd Sess. (1990). 12. H.R. 5334, 102nd Congress, 2nd Sess. (1m). 13. H.R. 5679, 102nd Congress, 2nd Sess. (1m). 14. H.R. 5400, 102nd Congress, 2nd Sess. (1m). IS. H.R. 2900, 102nd Congress, 2nd Sess. (1m). 16. H.R. 2950, 102nd Congress, 2nd Sess. (1m). 17. S. 12, 1000d Congress, 1st Sess. (1991). 18. H.R. 707, 102nd Congress, 1st Sess. (1991). 19. H.R. 6022, 102nd Congress, 2nd Sess. (1m). 20. S. 1002, 102nd Congress, 2nd Sess. (1992). 21. H.R. 1253, 102nd Congress, 1st Sess. (1991). 22. H.R. 1252, lO2nd Congress, 1st 5oss. (1991). 23. H.R. 4210, 102nd Congress, 2nd 5oss. (1992). 24. HR. 11 would permanently extend the low-income housing tax credit, the targeted jobs tax credit, and exemptions for mortgage revenue bonds and certificates. Tax breaks for employer-provided educational assistance, health inswance for small businesses, research and development, and orphan drugs would be extended for twelve months. 25. S. 1150, 102nd Congress, 1st Sess. (1991). 26. S. 2, 1000d Congress, 1st Sess. (1991). 27. H.R. Rpt. No.916, 102nd Congress, 2nd Sess. (1992). 28. H.R. 1285, 102nd Congress, 1st Sess. (1991), the Higher Education Technical Amendments; S. 64, 102nd Congress, 1st Sess. (1991), the Education Council Act of 1992; H.R. 751, 102nd Congress, 1st Sess. (1991), the National Literacy Act of 1991; H.R. 2313, 1000d Congress, 1st Sess. (1991), the National Dropout Prevention Act of 1991. 29. see, e.g., H.R. 5502, 102nd Congress, 2nd Sess. (1992) which would establish a national system similar to Medicare with states having the option of establishing an aJtemativei S. 1227, 1000d Congress, 1st Sess. (1991) would require employers to provide coverage through private insurers or contribute to a national health care plan. 30. 5.3, 1000d Congress, 1st Sess. (1991). 31. S. 5, 102nd Congress, 1000d Congress, 1st Sess. (1991). 32. H.R. 3371, 102nd Congress, 1st Sess.

(1991). 33. S. 3282, 102nd Congress, 2nd Sess. (1992). S. 3282 differed from the provisions of H.R. 3371 in that it would require a seven rather than five day waiting pericxi. 34. H.R. 4542, 102nd Congress, 2nd Sess. (1m). 35. H.R. 6018, I02nd Congress, 2nd Sess. (1m). 36. See note 12 supra. 37. S. 323, I02nd Congress, 1st Sess. (1991). 38. Rust v. 5ulli""n, III S.C!. 17S9 {I 991). 39. H.R. 2507, I02nd Congress, 1st 5oss. (l99I). 40. S. 2899, 102nd Congress, 2nd Sess. (1m).

u

41. 138 Congressional Record, 142, S. 16578, (daily ed. October 5,1991). (statement 01 Senator Mitchell).

Paula Casey has served as a legislative aide to Arlalnsas Senator Dale Bumpers for the past year. She is currently a law professor at the University of Arlalnsas at Little Rock School of Law. She is the Arlalnsas Bar Association Lobllyist for the 1993 Arlalnsas General Assembly.

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November 3, 1992 ... The day the dream came true By David R. Matthews The rest of the Nation has now discovered what we, Arkansas lawyers, have long known. Arkansas lawyers make great national leaders. U. M. Rose and Edward L. Wright have served as presidents of the American Bar Association, Herschel Friday now serves as president of the American Bar Association Endowment and Phillip Anderson is the current chairman of the American Bar Association House of Delegates. Countless other Arkansas lawyers have served as national chairmen of various Bar and other civic organization committees. Other Arkansas lawyers, such as joe T. Robinson, Wilbur Mills, john McClellan, Dale Bumpers, and David Pryor, have risen to prominence in the national political arena. All have been members of the Arkansas Bar Association. The ultimate success for an Arkansas lawyer and the ultimate honor for the Arkansas Bar Association was achieved on November 3, 1992, when a member of our Association, Bill Clinton, was elected the Forty-Second President of the United States of America. That honor was, of course, doubly significant in that the Nation's new first lady, Hillary Rodham Clinton, is also an active member of the Arkansas Bar Association. His election as President is not only a great personal honor, it is also a tribute to our State and our profession. Bill Clinton's entire public life has been inextricably tied to the legal profession. After his graduation from Yale Law SChool in 1973, Bill knew he wanted to come home to Arkansas. Spurning many lucrative East Coast job offers, both in government and the private sector, Bill returned to his beloved Arkansas with no job and no money. In the now famous story, Bill Clinton stopped at a pay phone along Interstate 40 and placed a call to then Dean of the University of Arkansas at Fayetteville Law School, Wiley Davis. The future President described his academic career and willingness to teach to Dean Davis. He finally closed the deal by promising the Dean that he would teach any course and would agree, in advance, to not seek tenure. In what was clearly one of Dean Davis' best decisions, he gambled on hiring the young Yale law graduate. Clinton was true to his word. From September, 1973, until December, 1976, Bill carried a diverse and changing curriculum. He taught admiralty law, agency and partnership, a white collar crime seminar, federal jurisdiction, trade regulations, criminal procedure, and constitutional law. During that time, he closely interacted with several hundred future Arkansas lawyers. Many of those same students are now serving in important roles in the Arkansas political scene. Several have become legislators, some judges, and many have worked on various boards and commissions in an effort to make our State an even better place to live and work. In 1976, Bill Clinton was elected Attorney General of Arkansas. In that short two-year tenure as 28

ARKANSAS LAWYER

JANUARY 1993

Attorney General, Clinton instituted new aggressive policies that substantially enhanced the role of the Attorney General's office as an advocate for Arkansas consumers, particularly in the area of utility reform. In 1978, Bill Clinton became the youngest elected governor in the United States of America. His first term in office was marked by an aggressive and all encompassing agenda. Bill Clinton was a young man in a hurry to pull the State up from its perceived low status. In 1980, Bill Clinton was the youngest former governor in the United States. From 1980 until 1982, Bill Clinton was a lawyer with the firm of Wright, Lindsey, and jennings. Hillary Clinton had become a partner in the Rose Law Firm. While Bill and Hillary Clinton have maintained many friends in all walks of life, it was their friends in the legal profession who helped sustained them during the unanticipated two-year sabbatical from public life. In 1982, Bill Clinton began the most important appeal of his life. It was an appeal to the people of Arkansas for a reversal of their decision in 1980. Like all good lawyers, Clinton prepared his arguments carefully, with painstaking attention to detail. In 1982, he was reelected Governor of the State of Arkansas. The lessons learned from defeat and his prior experiences served him well. Beginning in 1983, Arkansas began a series of unprecedented reform efforts led by Governor Bill CHnton and lawyer Hillary Clinton. Time and time again, during the 1980's, as Arkansas would embark on yet another reform effort, Clinton called on Bar Association members for help. Hillary Clinton chaired the Arkansas Education Standards Committee in 1983. Robert Cabe served on the Quality Higher Education Standards Committee of 1985. Webb Hubbell served as Chairman of the Campaign Ethics Commission which led to the Campaign Ethics and Lobbyists Disclosure Initiated Act of 1988. In virtually every instance of public spirited reform, Clinton would turn to members of the legal profession for leadership roles. Throughout his career as Governor of Arkansas, a hallmark of his administration as governor has been his insistence that the legal system be opened up to women and minorities. In a time when lawyers and the legal profession have been frequent targets for political demagogues, Bill and Hillary Clinton have steadfastly proclaimed their pride in the legal profession and have represented all that is good in our profession. The Arkansas Bar Association is proud to congratulate two of its members on their achievements. Our vicarious joy at their victory is tempered by our sadness that they will be leaving their active role in our profession in our State for a while. We take comfort in knowing that soon America will learn that Arkansas is a land of leaders.

How to Determine the Best Interests of the Child in Custody Litigation: A Guide for Judges & Trial Lawyers By James A. Chaney, Ph.D. and Lillian Chaney, Ed.D. Editors Nou:This article was originally

pri,md in th. Oetob" /989 issu. of Th. Arkansas lAwyer. Dut to the ;nurtSI the article gtntraud al that time. we /tit it

would b. h.lpftl to "print it with minor changN.

Prior to the middle of the nineteenth century, it was assumed in the United States that fathers would get custody of the children in a divorce. By the middle of the nineteenth century, however, the "tender years presumption" became operative, and courts began to use the

principle that a very young child could receive psychological benefits from the mother that could not be as easily obtained from the father. It was then assumed that at the end of the tender years period the children would be transferred back to the father, who had the "right" to them. As child labor laws were passed in the early part of the twentieth century, children were no longer an economic asset, and fathers did not automatically demand that they recei ve custod y. Consequen tly, during the 1920s, states changed their laws so that custody was not given automatically to fathers. For the next 50 years, mothers were typically given custody unless

they could be proven grossly unfit. During that time, traditional formulas for placement seem to have fallen along sexist lines, which made the judges' work much easier. Courts then were asked to reevaluate the rules for determining placement in the mid 1970s to consider the likelihood of a man being an equally good or better parent. The consequential change of the polestar of custody determination to the best interests of the child made custody determination a much more complicated process of judgment than utilization of a simple rule,

rigidly adhered to, that the female automatically makes the best parent from the viewpoint of the child's best interests. In preparation for the talk on which this paper is based, letters were sent to all of the Chancery and Circuit Judges in Arkansas, as well as approximately 400 attorneys, to ask their experience concerning the determining factors in custody decisions. It seems to be a consensus that many judges utilize an unwritten presumption that, during the tender years, a mother still has to be proven unfit before the father Can obtain cusLody. It appears that the general viewpoint is that the best interests of the child are served by placement with the mother at this age. While this may often be the case, there may be a strong possibility that since all of us rely on our background, training, and experience to make

judgments, the attitude concerning automatic placement of children with their mothers, during the tender years and later, may be a product of learning. Most of us were reared in traditional families where our fathers worked outside the home, and our mothers stayed home to Care for our needs and those of the family. Thus, we probably came to believe at an early age that our mothers are and should be the proper child rearers. These beliefs were probably reaffirmed in the college and university days of persons 40 yenrs old and over when an important area of research in psychology waS "maternal bonding with the child." This research was widely discussed and probably lent increased credence to the concept that females are the best or "natural" child rearers. Additionally, we knew as youngsters that children in divorced families were automatically given to the mother, which may have further strengthened our belief that women are the proper child rearers. Hence, it may be that many fathers never request custody because these environmental

utilizing "the best interests of a child" to determine custody serves the very purpose of avoiding automatic placement with the mother if the best interests of the child can be served by the father. In the 1990s when almost half of all mothers work outside the home, traditional concepts of the mother as the ultimate parent are being altered. The task of determining which parent Can serve the best interests of the child is very complex at times. Of course, it is not a difficult judgment when one parent is obviou Iy unfit, or if the case is that the child is old enough to have his or her wishes considered (with proof of no undue influence by either parent, or manipulation of the parent by such child). However, the case may be very complex between the ages of five and twelve if both parents appear to be fit parents. It may also be very complex below the age of five if the "motherchild bonding" is not taking place. The determination is usually made on the basis of comparative strengths and weaknesses of the litigants, along lines which are fairly easily brought to court. These include factors such as sobriety, moral character, religious training, work stability, financial stability, health, ability to provide a stable

community

environment,

general environmental conditions of the neighborhood, and present and future financial conditions.

Whjle few would doubt that these are extremely important, other aspects may be even more important in

determining which parent would best serve the child's interests. These are family relationships, emotional stability and personality of the litigants, emotional stability and personality of the children, and the parenting ability of each litigant. It should be noted that all of these factors are interdependent and that problems in anyone area can affect functionjng in the other areas.

factors have convinced them that

Wt!! bt!!Lieve thal these four are areas

femalE'S are the logical choice for parenting. 11 does not take many weeks of psychological practice, law practice, or being a Chancery Judge in the 1990s to realize that the best parent can be a mother or a father. The polestar of

in which a mental health profes ionals such as a psychologist, social worker, or psychiatrist has unique training that may be helpful to a case. Unfortunately, it has been the experience of some attorneys and judges that there are mental health

32

ARKANSAS LAWYER

JANUARY 1993

professionals who are "hired guns," and do not represent the mental health professions well. There are others who perform short, inadequate evaluations, and those who Simply perform routine psychological evaluations without investigating these vital areas. Proper determination of these areas of function is very time consuming

typically taking between 20 to 30 hours including interviewing and testing. Subsequent sections of this paper regarding these four areaS are heavily indebted to the work of Dr. Richard A. Gardner's text, Family Evaluation in Child Custody Litigation, but also to work of family theorists in psychology, social work, p ychiatry, and psychological testing. In families with evere dysfunction of family relationships, parents are not usually having their needs for love met by their spouse and may turn to their children for love and a sense of importance. Thus, one parent forms an alliance with the children, or some of the children, against the other parent. The parent who has been undermined also is not having his or her needs met, and generally turns either to an extramarital affair, throws h.iJTIself into his

work, drinks or uses drugs to kill the pain, divorces, develops a major depression, or becomes mentally ill. [n addition, he probably will become bitter and hostile without knowing why, leading to further alienation from the family. It is probably these families that you are most likely to see in your practice or in your court. Whjle the mother is usually the person who is most able to undermine the father in the eyes of the children, in fact, it is often the father who has undermined the mother with the children, thereby causing her to be isolated from the family and enraged for reasons that she does not understand. Since a custody decision may be made on the basis of what appears to be parental bond, it is extremely important to make a judgment concerning the reason for the bond. The bond formed between a parent and child by undermining the other parent can easily affect the way a child comes to feel about the opposite sex, and set a pattern for how they resolve conflicts with their own spouses when they become adults. We

are all, to some degree, products of our environment, and we can only use methods of resolving conflict with which we are familiar. If we learn to resolve conflicts by getting everyone on our side and isolating the opposing person, then we are more likely to employ that method when we become adults. Unfortunately, most people seem to use this method without ever consciously knowing they are doing it. Those things that children in your practice or court learn from their family of origin are extremely important for adult functioning. Their family of origin is usually where they learn to expect what happens in marriage. Those spouses who have undermined a spouse to the children are likely to carry that behavior pattern into the next marriage for the children to see and to have reinforced. The behavior often re-emerges many years later when the children are married, potentially producing another divorce. There are several methods of determining whether such patterns are present: observing the interaction pattern of both parents with each other; both parents with the child or children; observing each parent with the child or children; and watching children play together. Alliances within the fantily may become quite obvious when the mental health professional gives the famHya task to work on as a group. Another method of determining family relationships is by use of the Family Relations Test, which measures a child's perception of members of the immediate and extended family. The test provides insights concerning the child's perception of positive and negative feelings that others have for him, and measures the child's positive and negative feelings toward others. Additionally, there is a measure of the manner in which a chHd is dependent. The second area where a mental health professional may be of help to the court is the emotional stability and personalities of the litigants, which is typically established by psychological tests. Their personality structures and emotional stability are determined by interviews and personality tests. The most widely used and researched objective personality test is the Minnesota Multi-phasic Personality Inventory (MMPI). TItis test has over

500 questions and was developed in a rather intelligent way for its day. Rather than ask straightforward questions about emotional problems, the questions were constructed and given to people with known emotional problems to ascertain the pattern in which they answered the questions. It was found that persons with specific emotional difficulties tended to answer the test questions in a particular pattern, which persons taking the test could not know, even if they are sophisticated test takers. The test has built in scales to determine if the person has a tendency to lie, and whether they are trying to "fake good" or "fake bad." When the test taker has an excess of any of these responses, the test profile is considered invalid. Otherwise, the practitioner has information concerning a person's tendencies in 10 principal areas and can receive information on 78 secondary areas. The problem with using only the MMPI is that the test measures pathology instead of personality strengths and thus gives a very incomplete view of parents whose relative strengths may be extremely important in a custody decision. Fortunately, tests exist which will measure personality strengths. Examples include the 16 PF and the Motivation Analysis Test. One of the most important of the measures from the Motivation Analysis Test is the conflict area, which measures components like frustration in a career, being unsuccessful in obtaining freedom from the emotional ties of parents, a conscious denial of danger (which criminals typically repress in order to carry out their acts), an improperly functioning conscience, a loser syndrome, repression of sexual interests, and frustration in the search for affection. The Child Abuse Potential Inventory provides a measure of the tendency to be abusive to a child. Regardless of any factor investigated, a mental health professional should have some indication of whether a parent or stepparent is likely to be abusive. The third major issue, emotional stability and personality of the children, is typically determined by test results and interviews. Mental health professionals are quite aware that

children should have a good selfconcept if they feel loved and important and are able to express feelings in the two major feeling channels-love and anger. lf a child's environment is deficient in helping him or her to feel loved and important, his or her self-concept will be lowered. Additionally, a child will often have a poorer self concept if he or she is able to express only one major set of feelings. Testing for these factors includes the Children's Perception Test, Three Wishes, drawings of the family involved in some activity, direct questions, and observations regarding the child's behavior and manner of interacting with the practitioner and others. The tests for young children are not objective questions that children respond to on a sheet of paper, since eighth or ninth grade reading ability is typically necessary to answer objective questions. However, these tests may take as long as six hours, thus enabling the practitioner to get a pretty good idea of the child's personality structure and emotional stability. It is also important to understand which parent the child would prefer to live with and why. It may be helpful to ask the child what things about his mother and father that he or she likes, and what things about their mother and father that he or she does not like. The child may prefer living with a particular parent because they have the bigger house. The practitioner can ask at this point if the parents were to switch houses which parent they would like to live with. A child may not want to live with one parent because that parent makes them do their homework and go to bed early enough to be rested for the next day at school. Other children will never state a preference for one parent. They are aware that their parents may be attempting to pull them in one direction or another, and they do not wish to make a choice. It is often helpful in that situation to ask which parent their brothers and sisters would like to live with. This can help the child to tell you the parent he wants to live with without actually naming one over the other. However, it should be understood that children may have a very negative view of the parent who has left the home.

Practitioners should probably be suspicious if a child describes one parent as being all good and the other as being all bad. The child who describes a parent as having only assets or liabilities has probably been very much influenced by one of his or her parents. Another set of tests which may be helpful for children are Sentence Completion Tests which may have questions such as: I want to know ... Athome ... I regret. .. What annoys me ... I feel. .. My greatest fear ... I can't ... The final area, parenting ability of each litigant, is possibly the most important area in which a mental health professional can provide information in custody decisions. We have found Dr. Richard Gardner's books to be very helpful in this regard, and much of this section utilizes his work. As previously mentioned, our style of coping with stress is learned by watching others. We primarily learn to parent by having watched our parents do it, tending to be the same type of parents that ours were. If a man's relationship with his father was poor, it may be helpful to determine if this father is compromised in his paternal capacity. Similarly, if a mother did not get along with her muth~r, it will likely be helpful to determine if her maternal capacity is compromised. Discussion of their past might include what kinds of games they played as children. If girls liked to play "house" and to play with dolls, this may be helpful infonnation regarding her ability to function as a nurturing parent. An important aspect concerning parents is indicated by their childhood activities involving pets. Research has indicated that childhood interest in pets is positively correlated with parental capacity. It may be helpful to determine expectations regarding the number of children they wanted after they got married. If a person answers none or one, this is not much evidence of parental capacity, especially if they say none and apparently had il child 34

ARKANSAS LAWYER

JANUARY 1993

by accident. On the other hand, those have much respect for the individual needs of children. Another question to ask concerning expectations at the time of marriage, is how long they planned to wail until their first child was born. If they did not take anything into consideration, this is a negative. People with good parenting capacity typically consider their financial and emotional resources, such as wishing to know each other belter, or having their relationship well established and comfortable before having cltiJdren. The practitioner might then ask about altitudes during pregnancy. The mother with good parenting capacity will see to it that she has good prenatal care. One would hope that the practitioner will ask how the mother thought she looked during pregnancy. The mother with good parenting capacity usually thinks she looks beautiful. The woman who believes that she is ugly or is ashamed of herself presents a negative response to parenting capacity. This is similarly true with the father. It might be helpful to ask the parents what their secret preference for sex of the child was. If the bias was unjustified and strong in a particular direction, one might find a parent who chose a name for only one sex. Concerning experiences shortly

The next set of questions regarding the children is about the current period of lime. It is typically begun by asking a parent to describe their children. If the parent answers with comments regarding their physical characteristics instead of personal or psychological factors, this potentially compromises parent capacity. It may then be helpful to ask the parent to describe what things they like about their child and what things they dislike. If they are unable to think of anything they like, this says something significant about their relationship with the child. If they indicate that there is nothing that they dislike, then the parent is probably trying to deceive the practitioner into believing that everything is bliss. The next question is to ask parents to assess themselves as parents, both their strong and weak points. Of course, all these questions are asked with some tact. Dr. Gardner suggests saying," 0 one is perfect. Everyone has both assets and liabilities, both good points and bad points. Regarding parenting, what do you consider your assets and what do you consider your liabilities?" In asSt'SSing answers to this question, the practitioner should altempt to determine whether the liability is actually a liability and whether it is pathological. Some mothers and fathers may say that they scream at

after birth, postpartum depression

the children. Sometimes, soft words

following the birth of any of the children should be explored. These depressions typically involve unhappiness with the maternal role and hostile impulses which are kept outside the mother's awareness by her seemingly being excessively loving toward the child. While there are biological changes which occur, many do not believe that such changes are sufficient to produce postpartum depression. Attitudes toward breast feeding hould be explored. The man or woman who

are not very effective in dealing with children. Another factor to be evaluated is related to parent behaviors regarding cuddling. Research studies since the 1930s have indicated that all children need to be touched and held. It is important to determine which parent tends to cuddle and hug the children. Small children are often fearful entering the practitioner's office, and they may try to cuddle with a parent or to hide their head in the parent's lap. It is important to notice which par~nl the child goes to for the purpose of alleviating his fear. Some children may simply lie comfortably in the parent's lap. This is important information. It is also important to notice what the parent does at that point. An additional area concerns the

who have seven or more may not

considers such behavior "primitive"

is less likely to be paternal or maternal. Simply asking about breast feeding is insufficient, in that popular books tend to equate breast feeding with maternal capacity and femininity. It is important to understand an individual's attitudes.

amount of time that each parent spends with the child outside meal preparation, cleaning the house, etc. How much does each parent enjoy their child sitting on their lap or time spent reading bedtime stories. Even if the father is the only one who has worked outside the home, men with good parenting capacity enjoy these activities. The practitioner might then ask what they like doing most with the children. This is typically a surprise question as many of the others are, and the parent who has difficulty answering the question may not be very close to the child. The practitioner can then ask what they like doing least with the child. If there is nothing, the practitioner will realize that the parent is being deceptive and tends to give less credence to their other answers. Another factor in parenting is how much each parent talks to the child and what they talk about. Research evidence indicates that children can be stunted in intellectual development if parents talk very little to them before five years of age. The involved parent may help them with their homework or talk to them about other things, even though it is a conversation which other adults may find excruciating. Other questions involve which parent has traditionally gone with them to dance recitals, music recitals, baseball games, football games, etc. The other area of concern for the child's best interests involves the issue of helping the child learn to develop social skills to get along with others. Children cannot learn to get along with other people without plenty of contact with other children. Consequently, the practitioner should ask questions about each parent's attitude toward the child haVing friends in the home. The parent who has the children's interests foremost in their minds recognizes that annoyances such as messiness, fighting, and noise are simply the price for a child learning to have good social skills. This skill is terribly important in adult life and a very important goal of child rearing. Regarding the importance of education, children tend to have roughly the same commitment to

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education as parents. This has nothing to do with the parents' professed commitment. Nearly all parents in custody litigation state that they are very interested in their children performing well in school. This attitude can often be assessed by observing how much each parent is involved in the child's performance in school. The parent who is very pleased with a child's work, and lets the child know that he or she is pleased, helps to increase the chHd's motivation for education. The parent who is too busy to observe the child's work or to help them understand a school concept is probably not actually comm;tted to the educational process. On the other hand, the parent who does the child's homework is typically doing the child more harm than good, telling the child that he does not actually have to perform. An additional factor in detemuning educational involvement is to deternune who has gone to the nighttime PTA meetings over the years. Of course, it is important to determine whkh parent does these things out of duty and who has a genuine interest in these activities. Jt may also be helpful for the practitioner to ask each parent if he or she has pictures of the children in his or her wallet. This is not a large factor compared to the others that have been discussed. However, it may be helpful to examine parental facial expression if the practitioner says that they are good looking children. One can then observe whether the parent seems prideful or has no r action. Parental function includes the capacity for discipline as well as ti,e capacity for love. By asking what things that parents find tlley have to punish the children for, one can find if parents are willing to discipline the cluldren. The parent who is unable to discipline typically rears a child who is self-centered with lillie sense of conscience toward those around him or her. On the other hand, finding out the methods of discipline can determine whether a parent is cruel and harsh. Sometimes a practitioner

cannot get a very good answer to this 36

ARKANSAS LAWYER

JANUARY 1gH~

question, and Gardner suggests several questions, including: What's the best way for a parent to handle a c1llid's temper tantrums? What would you do if a child cheated while playing a game with you? What do you do with a c1uld who sucks his or her thumb? How do you handle a child who uses profanity to a parent? What about a child who uses profanity in front of a parent, profanity that is not directed toward the parent? How do you handle the situation when a cIilld refuses to fuush supper? What is the best way to do when a parent catches a cIilld involved in sex play with a neighbor's child? How do you handle children fighting, especially when it becomes fierce? What do you do when a child steals and then lies about having stolen? What is the best thing to do when a child refuses to do homework? What is the best way to handle a child who refuses to do household chores, such as taking out the garbage or making the bed? What is the best thing for parents to do if they find out that their fourteen or fifteen-year-old daughter is pregnant? If a parent responds with a comment like, "My child would never do that," the practitioner can ask the parent to speculate on what they would do if this happened. The practitioner can also find out if the parents might isolate the child for inappropriately long times, withdraw affection for a prolonged period, whether the parent tries to bribe the child, whether the parent relies excessively on reasoning or trying to get a cIilld to understand the parent rationale, or whether the parent makes empty threats. Methods that work

well

include

short-term

isolation, a short explanation, firm command, and the type of spanking wluch does not injure the cIilld. Aside from the four components that have been discussed, there are other areas concerning relationships

that may be helpful. For example, a parent who is remarried may have an edge over the single parent in that there are two people to provide care. Another area of importance is to explore the child's relationships with other relatives. It may help to determine if grandparents or aunts or uncles are available for contact and to ask a series of questions concerning what are the best and worst things about each of these relatives. The final area which has important implications for the best interests of the child is the type of custody awarded. Since judges are frequently concerned about protecting the interests of the parents, they are aware that parents who lose custody not only lose the custody of the cIilldren but also a great deal of selfesteem. Judges may tl1US be tempted to award joint custody. Willie some states have mandated joint custody, it seems to take an unusual set of parents for this to work well. This arrangement requires a great deal of cooperation between parents, and both must be willing to make cODlpromiscs which are necessary to ensure that the arrangement works well. However, assuming that this call be worked out, it is also very important that parents are both well suited in terms of parental capacity. It will not work well for a child to be placed in joint custody if one parent is greatly superior to the other in parental capacity. However, assuming that these conditions are met, it is important that the dlild's school work is not disrupted by going from house to house. Therefore, it should be worked out that parents live in the same school district or the child attend a private school that is fairly close to the house of each parent. It is very difficult to meet all of the e conditions. When they are not met and joint custody is granted, it is typical that from a psychological point of view there is no custody. TIlis is not in the best interests of the child. Where these criteria are met, joint custody seems to have worked very well.

REFERENCES Chaney, L., Psychoanalytic Approaches, Systems Approaches and Behavioral Approaches to Marriage and Family Therapy, Research, 1984. Dudley, R. H., A Chancellor Looks at Child Custody, Support and Visitation, First Supplement to Arkansas Domestic Relations System, January 1, 1982. Gardner, R. A" Family Evaluation in Child Custody Litigation. Cresskill, N.J.: Creative Therapeutics, 1982. Goldstein, J., Freud, A., and Solnit, A. J.. Beyond the Interests of the Child. New York, .Y.: The Free Press, 1979. Group for the Advancement of Psychiatry. New Trends in Child Custody Determinations. Harcourt, Brace, Jovanovich, 1980. Hofling, C.K., Law and Ethics in the Practice of Psychiatry, ew York, .Y.: Brunner/Mazel,lnc., 1981. Lowery, c.R., Child Custody Decisions in Divorce Proceedings: A Survey of Judges, Professional Psychology, Vol. 12, No.4, August, 1981. Schetky, D. H. and Benedek, E.P. (Eds.). Child Psychiatry and the Law. New York, N.Y.: Brunner/Mazet Inc., 1980. Wallerstein, J. S. and Kelly, J. B., Effects

of Divorce on the Visiting Father - Child Relationship, American Journal of Psychiatry 137:12, December, 1980.

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Wilbur H. Botts, 77, of DeWitt died in October. He was a member of the Arkansas Bar Association, the Rotary Club, the Chamber of Commerce of DeWitt and the American Legion. He was Past Chair of the Arkansas National Heritage Committee and served on the Board of Directors of the DeWitt Bank and Trust Co. Survivors include his wife, Kathleen Hagan Botts of DeWitt; one son, Bill Botts of Marianna; one daughter, Mary Carr of DeWitt; two sisters and three grandchildren.

JUSTICE GEORGE ROSE SMITH

jllstice George Rose Smith

Writtell by

J.

GOStOIl Williomsoll

justice George Rose Smith of Little Rock died on Octubff 20,1992, at the age of 81. A native of Little Rock and a graduate in 1933 of the U of A School of Law in Fayetteville, he practiced law for 15 years with Rose, Hemmingway, Cantrell and Loughborough in Little Rock. 38

ARKANSAS LAWYER

JANUARY 1993

During that period, he married Peg Newton of Little Rock, taught in the the Carmachel Night Law School and served for 3 1/2 years in the Army Air Corps' judge Advocate Section. In 1948, judge Smith was elected to the Supreme Court, where he served continuously for 38 years until his retirement on December 31, 1986 at the age of 75. At that time he had served more years on an appellate bench than any other appellate judge then serving in the United States. But it was more than the term of years or the 2000 plus opinions he wrote that made his judicial service so outstanding. justice Smith's judgment was very sound, based on thorough preparation, experience and vast knowledge of the law. He had a brilliant yet open mind, coupled with judicial courage and intellectual honesty. His opinions were concise and complete and written in clear, declarative sentences which were always grammatically perfect. He was the author of the Court's internal procedures and its published ruJes of practice. For a number of years justice Smith taught at the Appellate judges Seminar at ew York University and elsewhere, and rus methods of opinion writing, as well as his law review articles on appellate practice, are still widely taught and followed. The depth of justice Smith's intellect, skills and character was demonstrated by rus hobbies. He was an accomplished brick mason, carpenter and electrician. His love of words led to his creation of crossword puzzles, some 50 of which were published during his last 20 years induding a number in the ew York Times and National Observer. He had a remarkable collection of 444 golf balls, each unique, which he gathered

in the days he used to jog along side of Rebsamen Park Golf Course. Bad1 evening about dusk since 1964, judge Smith served food on his terrace to wild raccoons in numbers which varied from 12 to 27. For 24 years, the Smiths' Christmas card has displayed a different photograph of the raccoons performing some novel task, like trimming a Christmas tree or tying up presents, for wltid1 judge Smith had cleverly enticed the raccoons to pose. He was not only an outstanding judge but a remarkable human. Survivors include his wife, Mrs. Peg Smith; a daughter, Dr. Laurie Smith Fisher of Clarksville; and a grandson, Michael G. Fisher. Memorials may be made to the Arkansas Bar Foundation for the justice George Rose Smith Scholarship Fund.

JAMES

K. YOUNG

james K. Young, 70, of Russellville, who served as City Attorney for 25 years, died in October. He was a partner in the Young & Finley Law Firm. He was a former state representative, a member of the Arkansas Bar Association, the Razorback Lettermen's Club and First Christian Church. Survivors include his wife, Marianne Young; a daughter, Elizabeth Gill ; a stepson, Donald P. Higgins; two stepdaughters, Ann Baca and Susan Carver; and seven granddilldren. Memorials may be made to the Arkansas Tech University endowment fund or to First Christian Church of Russellville.

YOUNG

LAWYERS'

SECTION

COLUMN

We are the Do-Gooders By Lucinda McDaniel

Members of organized bar associations are do-gooders. Yes, we members enjoy the fellowship provided through the organized bar, but we also work diligently on projects which provide services to members and services to the public. During Constitution Week, the Arkansas Young Lawyers Section completed a voter awareness program to stimulate interest in local, state, and national elections and to register those high school students eligible to vote. Brant Perkins of Jonesboro prepared a red, white, and blue poster prominently displaying the Statue of Liberty which urged students to register and vote. Young Lawyers then attended high school classes to discuss voting rights and the elections. At the time of writing this article, the elections had not yet been held; however, the Arkansas Young Lawyers have had an impact on that election and, hopefully, on a new generation of voters. Ruth Ann Wisner of Pine Bluff is coordinating the publication of a consumer handbook. Arkansas consumers will be advised on buying a used car, buying a house, leasing goods, collecting debts, and consumer "scams." Through this project, Arkansas 40

ARKANSAS LAWYER

JANUARY 1993

attorneys can educate the public so that they will be able to make intelligent and informed decisions about the products they purchase and the debt they incur. Abe Bogoslavsky of Little Rock coordina ted the fall swearing in ceremony for new attorneys. Inductees were welcomed to the profession at a reception following the taking of their oath and packets of information from area businesses and the Arkansas Bar Association were distributed. Many of these new lawyers attended the Bridging-the-Gap Seminar coordinated by Don Parker of Little Rock and Scott Morgan of Pine Bluff. The Bridging-the-Gap Seminar annually initiates new attorneys to the profession by providing practical tips a nd sa mple forms for use in their practice. The first annual Minority au treach Project will be conducted this year at the UALR School of Law. Lynn Williams of Hot Springs has secured commitments from minority lawyers, court reporters, courtroom personnel, and other law related professions to speak to minority students about careers in law. Wendell Griffin recently reported to the Execu tive Council of the Arkansas Bar

Association that no minority student graduated from the School of Law at the University of Arkansas at Fayetteville during the past year. The Minority Outreach Project is designed to remedy that situation by actively recruiting minorities to the profession. May will bring the traditional Law Day project where young lawyers allow students to act as a jury in classroom mock trials. Packets of information are prepared including witness statements, applicable law, and suggested topics of discussion. Young lawyers are then paired with participating schools to present the evidence and the law and allow the class to vote as a jury on the guilt or innocence of the accused. This project has consistently been presented in over forty classrooms reaching approximately a thousand students each year. Other sections and committees of local and state bar associations do similar work for the profession and for the public. At a time when lawyer bashing is a popular sport, we must publicize the good we do both for our fellow attorneys and for the public.

LAW

OFFICE

TECHNOLOGY

REVIEW

Tax Research on CD-ROM and Westlaw Goes Natural By Barry O. Bayer & Benjamin H. Cohen We've been spending a lot of time, lately, browsing through the ever growing list of CD-ROM research material presented by both new publishers and traditional old line publishers of print legal research. This week we look at several volumes of CCH Access CD-ROMs, which duplicate the material contained in the Commerce Clearing House Federal Tax Reporter, and a lot more. We also note a major new development from Westlaw. InstallationIDocumentation The CCH search software installed automatically from a 3-1/2 inch floppy disk to about half a megabyte on our hard disk. The program requires the Microsoft MS-DOS CDROM extensions and MS-DOS 3.1, and comes with a .PIF file for use under Microsoft Windows. We had no problem running the program with our usual CD-ROM setups. The program needs about 450 kilobytes of free memory, and, according to the manual, about two megabytes of free disk space. A 220 page manual presents great detail about program usage and problems. Extensive on-line context sensitive help made the manual mostly unnecessary. Toll free help is available from 8:00 PM to 10:00 PM, Eastern time, weekdays, and 9:00 PM to 5:00 PM Eastern time on Saturday. Interface CCH Access CD-ROMs commands can be issued with function keys or pull down menus. The user can narrow the scope of the search by choosing one or more table of contents topics, continually "walking through" the table of contents until

the desired document is reached. At any time, the user can perform a full text search with the standard boolean and proximity connectors, but the scope of the search is always narrowed to the selected topics; in addition after encountering a citations in the text of a document, the user can often '1ink" to the cited document by pressing F5 or using the pull down menu alternative. The program maintains a project log that records the research commands given and shows time logged to the system. The user can open a notepad to record comments, or excerpt material from the data base. A typical search took 5 -10 seconds, and even complex searches usually took no more than 15 seconds, using our relatively slow CD player. Standard Tax Service Our first tests were of a two disk set including the eqwvalent of the 19 volume Standard Federal Tax Reporter, the Gift and Estate Tax Reporter, and CCH's Excise Tax Reporter. The Federal Tax Service is also available, alone. The CD data base is claimed to contain the same information as the paper reporter, and we found that research on the CD is at worst the same as with the loose leaf service, and potentially much faster. When we looked for something that was not on the current disk, we had to write down the search term, change to the other disk, and r.,...,nter the search term, a minor inconvenience. According to the manual, the software supports multiple CD

players, and automatically searches the appropriate disk without human intervention.

The second disk, which contains the topical index, citator, and current and historical lnternal Revenue Code, is updated quarterly. The first disk, which has everything else, is updated monthly. ew material is integrated into the old data base, and new disks sent out to replace the old. CD-ROM subscribers will never have to file new loose leaf pages again. Interim updates will not work more than 60 days after the issuance of a replacement update. The final update of the year, however, is an archive disk intended to be useful in perpetttity. More Disks In addition to the two disk Standard Federal Tax Reporter, we also received one disk of BTR decisions (not available from CCH in paper), a two disk set of "Tax Court Regulars" from 1942 to date, four disks of IRS Letter Rulings and Positions, starting with 1954, two disks of Tax Court Memoranda, and a three disk set of U.S. Tax Cases. CCH also publishes Revenue Rulings and Revenue Procedures, Selected IRS Publications, and the Internal Revenue Manual, each on a separate disk. Multi-disk sets are arranged chronologically, so that only the last disk in the series need be updated. Updates are issued monthly, quarterly or annually, depending upon the publication. All of the disks use the same CCH search software. Anyone purchasing all 19 disks will quickly tire of shuffling disks. We assume that tax lawyers will soon

migrate to multi-station CD-ROM carrousel which can maintain each of the disks, and more, on-line at the sametime. Pricing I Value CCH's CD-ROM pricing is so full of bundles and options that we hesitate to do more than present some guidelines. In general, a CD-ROM product will cost no more than the comparable print product, but users who already have the print version can obtain the CD-ROM at a substantial savings. A nominal annual

price

for

a

two

year

subscription to the CD-ROM version of the Federal Tax Reporter, for example, is $1,290; the comparable price for the printed version is $1,420. Purchase both, and the CD-ROM is only $380. Other "deals" may be available. Ask. Any of the CD-ROM products can be networked upon payment of a surcharge. An office with 1 - 4 tax professionals pays 115 percent of the stand-alone price for the network version; a 50 tax professional office would pay a 50 percent surcharge. As these disks not only permit research from anywhere in the office but save substantial shelf spacing and update filing costs, we consider them to provide excellent value. On-Une News We took some time out this week to chat with the folks at both West and Mead. The Mead announcement was that the five attorney minimum on the single state flat fee MVP Lexis billing has been lowered to three, at least for the State of New York. Sole practitioners and lawyers in other states should demand equal treatment. The West announcement was more interesting. Nter years of work, and untold amounts of research cost WestJaw is adding a natural language interface as an alternative to the traditional boolean interface. The press conference was replete with words like "heuristic," "probabilistic"

and "algorithm", more familiar to artificial intelligence scientists than legal researchers. But we did understand that it will soon be possible to select a case library and enter "Is a pharmaceutical manufacturer liable for damages for 42

ARKANSAS LAWYER

JANUARY 1993

failure to disclose adverse reactions" instead of some carefully crafted combination of "OR", "RNO" +n" "-p" "!" and "-". The new system II

will even rank cases according to the likelihood of applicability to the entered problem, with the "best" cases towards the top of the list. A user will be able to switch back and forth between the boolean interface and the natural language interface, and can even use combine natural language and EZ-Access. Included in the new system is a user accessible thesaurus which can be used to broaden the search. We think the new thesaurus would be just as useful to boolean searches; West agrees, and is hoping to add the thesaurus to the boolean interface some time in the future. The natural language interface for case law only was "rolled out" to the

500 largest law firms in the country October 1, and will eventually catch up with every Westlaw subscriber. Any direct subscriber who wants to use the natural language interface before West has provided training can call West's 800 number and have her account adjusted to use the new system. There is no additional charge. West hopes to extend the new interface to the entire Westlaw database, but would not release a time table.

We expect to compare boolean and natural language searching when the system is available to the public. We would be interested in reader experience with the new system, and particularly any notable anomalies between boolean and natural language searching of the same problem. WesUaw users should not forget, however, that West reference attorneys, available at the punch of an 800 number, continue to provide an excellent, if non-automated, natural language que.ry interface to Westlaw. We suggest that anyone beginning a research task outside of his limited area of expertise, would do well to invest five minutes in a free phone call before turning on the modem. Details Commerce Clearing House, Inc. 4025 West Peterson Revenue, Chicago, IL 60646. Standard Federal Tax Reporter, Annual Subscription: $1290; $380 for subscribers to the paper service. Phone: (800) 248-3248 or (312) 583-8500. Mead Data Central, Inc., P. O. Box 933, Dayton, OH 45401. Phone: (BOO) 543-6862 or (513) 865-6800. West Publishing Company, 610 Opperman Drive, P a Box 64833, St Paul, MN 55164-0833. Phone: (800) 328-9352 or (612) 687-7309

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Law, Literature (But no Laughter, This time Only) By Victor A. Fleming The eat's in the cradle and the silver spoon, Little Boy Blue and the man in the moon"When you coming home, Son?" "I don't know when, But we'll get together then, Dad. You know we'll have a good time then." -Harry Chapin

I hear it now, and o'er and o'er, Eternal greetings of the dead; And "Ave, Ave, Ave," said, "Adieu, adieu," forevermore.

In those sad words I took farewell. Like echoes in sepulchral halls, As drop by drop the water falls In vaults and catacombs, they fell; ... -Alfred, Lord Tennyson October 1992 -- Allowing my eyes to dose gently and my mind to relax, I see across the years a seven-year-old boy with a baseball glove larger than he is. The grown-up man, in his 40's tosses the ball up and hits a fly. Doing as he was taught, the boy glides underneath the descending ball, raising the glove. And Father

was there to ease Son's pain with the ball somehow missed the glove and struck Son's forehead instead. Father would go on to greater achievements, as coach of the little league team when Son was in his ninth year. And, in retirement from coaching, Father yelled loudly for Son's teams in later years-witnessing kick-offs, home runs, sprained ankles, and busted chins. In victory and defeat, Father stood by Son -- always there for such support as was needed. Father smiled and pretended to understand when Son learned about girls (and thus had less time to spend with Father). Father likewise seemed to comprehend when Son chose a college half a country away from home. And Father paid the tuition. Then they got together again a few days or years later and asked, "Where did the time go?" They figured it out. Son had got busy and gone off to law school, married, settled in Arkansas, and started having children. Father was now a grandfather, Son a father. So, for the first time since little league baseball, they had something in common again. Father had passed three score and ten when the two of them first played in the Father/Son Tournament. For four years they played, and did

respectably. Then, a little trouble set in - of the heart variety. But nothing that could not be overcome. And their visits became more frequent. Their friendship grew, in ways that had not occurred before. For instance, as Father had always predicted, Son had become an After Meal Speaker. And in the town where Son was born, in Father's 79th year, Father sat at table and listened as Son gave the After Meal Speech. And Father seemed quite proud. And there were things Son wanted to ask Father -- about the old days. And there were things Son wanted to tell Father - like how proud he was of him. For, you see, Father had taken to working in a sporting goods store, with a bunch of young folks (some even younger than Son). And when Son would talk to these people, they could not but remark how much Father's very presence in the organization meant to all concerned. And that made Son feel very good. Son perceived that Father was going about the sporting goods business -- selling baseball gloves to mothers and fathers and children; outfitting soccer teams; measuring tennis shoe sizes -- with the same sense of excellence and professionalism with which Father had gone about the work of banking

and finance before his first and second retirements years before. But Son did not exactly get the words out about how proud he was. And then last Thursday, the call came that Father was gone. And Son did not feel good about that at all. For Son was not ready to let Father to such a thing! Had not Son just spoken to Father yesterday? Father's plans, he had said, included the 1993 Father /Son Tournament. And showing Grandson how to pitch and catch. And making even more

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Arkansas. But Son's spirit was uplifted by friends, who brought their hearts and their prayers by to say they cared. Father's friends included peers from three professions. And those who cried the hardest were the young folks from the sporting goods store, and the mothers and fathers and children. But those who will miss him the most live in the home of an Arkansas lawyer. Son expresses his thanks to those who get the message. ELIJAH ANSON FLEMING, JR. June 21, 1913 - October 15, 1992

WA TED: Southwest Reports (Arkansas Cases) or Arkansas Reports. Also, Arkansas Digest, Shepherds Citations and Am. Jur. Legal FomlS. 9685557. FOR SALE: Law office and library of Wilbur Botts, practicing attorney in DeWitt, Arkansas for 50 years. Compete up-to-date Arkansas Code Annotated, Arkansas Digest, Arkansas Case Law, Arkansas Shepherds, and miscellaneous form books. Some office equipment, phone system, law office with waiting area, two offices, conference room and storage room. 117 orth Adams, DeWitt, Arkansas. Contact Kathleen Bolls, Executrix of Estate, (SOl) 946-4316.

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EXECUTIVE

DIRECTOR'S

REPORT

-By William A. Martin

Eight C's pius two X's equal C squared, or how to practice law and get a life - this is a formula for success as a person and as C1 lawyer which David L. Nixon, former President of the New Hampshire Bar Association, shared with attorneys attending an Ethics and Products Liability Litigation seminar at last summer's American Bar meeting. Each letter stands for the beginning of descriptive words that provide us with images of goals, approaches, attitudes, and achievements we should strive for. What follows is my distillation and of embellishment David Nixon's words and ideas. Commitment. When we enter into any activity, be it the practice of law or family activities or community involvement, we must have the commitment to be the best we can be. Representing clients with "Olympian Zeal" is the only acceptable standard. Competence. Ethical standards

demand we be competent when we undertake to handle another's problems and causes. Constant study, practice, planning and observation are necessary to maintain it. Along with being competent we must know our limitations, know when we are not competent to handle a particular problem and when we must refer the matter or

associate someone who is competent

on that subject. Compassion. Clients deserve to know by our acts and our words that 46

ARKANSAS LAWYER

JANUARY 1993

we are concerned and care about their problems. Genuine welcome to our office, continual follow-up and explaining what is happening to their case are ways we make sure we care and they know we care. Civility. Courtesy and being considerate and thoughtful are other descriptive words for this attribute. Civility toward opposing counsel, their clients and the courts lubricates the judicial machinery. We can do much through cooperation and agreement on providing Wormation, time extensions, and stipulations rather than use extensive formal discovery and motions to contest everything. It behooves us to work together to narrow the issues which a judge or jury must decide and save everyone time, money and anguish. Another side of this coin is being ever alert to say "thank you," "congratulations," "good job," and similar things which make living and working together easier.

Charity. In many ways what we give away we possess more than what we keep. We have been so blessed to be lawyers that one way we recognize that blessing is to give of our money, our possessions and, even more importantly, of our time in charitable endeavors, including pro bono work, to those individuals and organizations which need our charity. Concern. There is no place for apathy or selfishness among lawyers. We must think about and be concerned with making our

profession and our comn1unities, local, national and global, better and then translate that concern into works.

Confidence. In everything we undertake we can project confidence when we know we have prepared, have practiced and are ready to complete properly the tasks we want to accomplish. Common Sense. We probably never would have gotten this far if we didn't have common sense. It remains for us to always use it-to say and do what makes sense and, in Shakespeare's words: "To thine own self be true." To these eight C's we add two XiS: Extra-Curricular Activities, things that have nothing to do with the law, fishing, golf, recreational reading, travel, church involvement, and a multitude of other activities that clear and refresh our minds, along with Exercise, walking, ambling, jogging, swimming, tennis or other vigorous activities which benefit both our body and our brain. Add up Commitment, Competence, Compassion CivilitYI Charity, Concern, Confidence and Common Sense plus throw in ExtraCurricular Activities and Exercise. The results equal C2, Completeness as a lawyer and a person and Contentment with what we are and what we have achieved each day whkh provides an ability to handle stress and enjoy life. l

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reporting like this misleads the public, denying it the information necessary to participate rationally in the crucial societal debates concerning the environment. Increasingly, the legal community in Arkansas serves as the liaison between an aroused public and government agencies. The purpose of this article is to convey to practitioners the perspective that is missing from the current dialogue on environmental issues in Arkansas. A Brief History of Environmenta.l Regulation A. Common Law NII;sallce and COlIslillltiollnl Property Rights TI,e mother of all environmental regulation is the common law nuisance action. Sic utere tllO Ilt aliemun '1011 laedas: Use your own property in such a mallner as not to injure that of another. The mirror image of this common law principle is that a property owner may use his own property as he sees fit as long as no tangible injury to another's use and enjoyment of his property results. John Locke translated this common law tradition into a principle of natural law that limited the absolute powers of monarches. The Founding Fathers, in tum, adopted large portions of Locke's political philosophy, including his deification of property rights, as inalienable constitutional rights for the fledgling American republic: "Government is instituted no less for protection of the property lhan of the persons of individuals." James Madison, The Federalist Pnpers, No. 54 (1788). When joined with capitalist economics, this principle served an expanding nation well. While resource-depleted European powers resorted to adventures in imperialism to preserve their mercantilistic life styles, the United States capitalized and developed the vast continent in its own backyard. A theory of property rights born of English feudal traditions - along with a convenient American version of Manifest Destiny - sparked and sustained the explosive economic development of North America. It hardly mattered to anyone at the time that this political doctrine was antithetical and downright fatal to indigenous Americans' way of life. The uneasy marriage of Locke's political philosophy and the laissez {aire economics of the late-nineteenth and early-twentieth centuries produced such infamous anomalies as Herbert Spenser and Laelwer v. New York, 198 U.s. 45 (1905). The Great Depression rudely exposed the downside of the Industrial Revolution, revealing the inequities inflicted on families, communities, labor, and other traditional legal institutions. One of the most significant legal developments of the twentieth century was the reassessment of previously unquestioned empirical and legal cornerstones of the nation's economy. 50

ARKANSAS LAWYER

JANUARY 1993

Beginning in the 19305, aU facets of the law evolved to allow government the latitude to alleviate the painful transition of an agrarian society to one that was increasil'lgly industrial and urban. The environmental consequences of the Industrial Revolution are a more recent realization. It was not until the Sixties that cautionary critics such as Rachel Carson began characterizing the modern economic ethic as ultimately suicidal. The societal response was astoundingly swift, perhaps because the accumulating evidence of widespread degradation of the water, air and land by unfettered exploitation was so dramatic. For instance, just before noon on June 22,1969, the Cuyahoga River in Cleveland burst into flames. The cause: unregulated discharges of industrial and municipal pollutants into the river. The incident prompted this stinging commentary by songwriter Randy Newman on the power mankind now exerted over a river, and by extension, over all of nature: The Lord can makt: you Lumble, The Lord can make you tum, The Lord can make you overflow, But the Lord can't make you burn. Randy Newman, lEBurn On:' Snil Awny (1972).

The burning Cuyahoga also illustrated the practical limits of common law as an adequate response to modern day pollution. The typical nuisance action deals with a readily identifiable plaintiff and defendant, and causation issues are considered simple issues of fact in the province of the jury. The most dramatic incidents of modern-day pollution, however, often defy traditional causation tests. In the Sixties, it was difficult or downright impossible to determine which of hundreds of polluters torched the Cuyahoga or were slowly killing Lake Erie. Similarly, common law or existing statutes could not assign or apportion liability for the wrongful death by air pollution of eighty New Yorkers during a four-day period in 1966. By the close of the Sixties, it was clear that neither common law nuisance doctrine nor existing statutory authority was sufficient to preserve the environment or protect public health. The next stage of environmental regulation was at hand. B. Tlte Age Of Polllltioll COlltrol In 1970 three events iJlustrated a sharp break from previous environmental policies. On New Year's Day, 1970, President Nixon signed into law the ational Environmental Policy Act of 1969 (NEPAl. On April 22, 1970, the first Earth Day celebration was held, dramatically illustrating the surge in public awareness of environmental issues. Finally, in December 1970, President Nixon by Executive Order created the Environmental Protection Agency.

A flurry of momentous environmental legislation soon followed. In 1970, Congress passed the first version of the modern Clean Air Act. In 1972, Congress overrode a Nixon veto and passed the Clean Water Act. In 1976, Congress addressed the growing concerns about management of hazardous and solid wastes in the Resource Conservation and Recovery Act. Finally, in 1980, responding to problems identified in Love Canal, New York, and similar sites around the nation, Congress passed the Comprehensive Environmental Response, Compensation and Liability Act, more commonly known as the Superfund Act. The substance of the Seventies era legislation and implementing regulations accepts the premise that some pollution is an inevitable by-product of modern enterprise. The discharge of pollutants to the water, air or land is "controlled" through a complicated mixture of technology-forcing and health-based regulations, enforced by a system of stiff strict liability sanctions. In general. environmental regulntion of the Seventies vintage attempts to determine what the water, air and land can stand as an accommodation to economic development without degrading certain health-based and environmental uses. In the early Eighties, even as the excruciating details of the pollution control strategy were still under construction, the Reagan Administration sought to dismantle the environmental initiatives of the Seventies. For instance, in 1981-1982 environmental enforcement initiatives by the federal government were curtailed sharply as compared to previous years. In the aftermath of the Gorsuch/Lavelle scandals, however, the federal government's commitment to environmental enforcement was revitalized. By 1989, enforcement activity by EPA had increased four-fold over the 1982 levels in most areas. "Enforcement Accomplishments Report: FY 1990," U.S.E.P.A., 1-3 et seq. Even with increased enforcement, however, the pollution control strategy of the Seventies came under increasing attack in the Eighties from both sides of the environmental debate. Environmentalist Barry Commoner ironicaJIy uses the same arguments often made by industry against polJution control regulation: The u.s. environmental program itself is not only ineffectual but also enormously - and unnecessarily complex and costly. B. Commoner, Making Peace With The Plnllel 56 (990). Even commentators who credited the past twenty years of environmental regulation with achieving progress in cleaning up the air and water were prepared to abandon the premise that

pollution is an inevitable by-product of economic activity. See e.g., Sen. Al Gore, EArth In The Balance 109 (1992). Most aities traced the shortcomings of twenty yean; of pollution control regulation to a nearsighted choice of targets: In the U.S., which has a set of environmental statutes second to none in their stringency, and where for the past 15 years poll after poll has recorded the American people's desire for the majority of the population participates in the industrialized world's most wasteful and most polluting style of life. Ruckelshaus, Toward A Sustainable

World, Scientific American, September 1989, 166,169. No one was suggesting that the extensive mechanisms of pollution control should be abandoned; indeed, as long as society generates waste and discharges pollutants, a control strategy is essential. Id. After twenty years of pollution control, however, both environmentalists and industrialists appeared ready to reconsider the economic orthodoxies concerning environmental protection. Thus, by 1990, the stage was set for the next evolutionary development of environmental regulation. C. Beyond Polllllion COlllrol. The twentieth anniversary of Earth Day in 1990 revealed that the public's concern for environmental issues was more pronounced and widespread than in the Sixties and Seventies. The governmental reaction in 1990 was more tentative than in 1970, but has the potential for being just as revolutionary. The Pollution Prevention Act of 1990 recognizes a growing trend in the area of environmental regulation - away from a pollution control strategy to one stressing source reduction. The Pollution Prevention Act - 42 U.s.C 13101 el seq. -like NEPA in 1970, is deceptively insubstantia1. The substantive provisions of the Act merely charge EPA with the task of gathering and disseminating information about "source reduction," defined as any practice that reduces the amount of hazard caused by the release of any pollutant into the environment. The crucial language of the PoUution Prevention Act, however, is the

statement of congressional findings and policy. A new major premise for environmental regulation in the Nineties is stated in 42 U.5.C §13101(a)(4): Source reduction is fundamentally different and more desirable than waste management and poUution control. The I EPA) needs to address the historical lack of attention to source reduction. A subsequent congressional finding

declares that the modest initiatives of the Pollution Prevention Act are merely u a first step" toward meaningful source reduction. 42 U.S.c. §13101(a)(5). The most significant provision of the Pollution Prevention Act is the statement of congressional poLicy set out at 42 U.S.C. §13101 (b) . Here, Congress formulates a hierarchy of regulatory alternatives for addressing environmental pollutants. The most preferred measures are source reduction or prevention and recycling; the least preferred are treatment and disposal. With this policy statement, Congress demotes the control strategies of the last twenty years, including exhaustive statutes and regulations, to the status of least favored alternatives. Instead, the primary thrust of environmental regulation is to be turned into the relatively uncharted waters of a pollution prevention strategy. Congress's first foray into substantive pollution prevention was not far behind. Like the Seventies, the Nineties began with the Clean Air Act. As the Act turns to the thorny question of acid rain, Congress once again recites its commitment to a poUution prevention strategy - §7651 (b) - then enacts a highly complex and unprecedented system of allowances for sulfur dioxide emissions that can be bought and sold as commodities in a free market. 42 U.S.C. §7651b. The alJowance system was developed through negotiations between the Bush Administration, the EPA, and representatives of the Environmental Defense Fund, one of the more aggressive and effective environmental action groups. The legislation was touted as a means to reduce the pollutants that produce add rain

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by half through the influence of free market forces. Recent reports indicate that the Chicago Commodities Exchange is considering opening its market to the trade in pollution credits. Some environmentalists have branded the allowance system as a betrayal. Commoner, for instance, characterizes the allowance system as a free market in pollution." In his opinion, the only effective instruments of pollution prevention are product bans or direct government micromanagement of technological production decisions. See Commoner, supra at 188-189, 214. Will a regulatory strategy relying on the enlightened impulses of the commodities exchange result in a meaningful reduction of sulfur dioxide emissions, or will Commoner's version of environmental martial law be necessary to control acid rain? It is too early to teU. The schism in the environmental movement over the acid rain provisions, however, reveals that a pollution prevention strategy involves difficult and controversial choices between the fortuitous market forces of free enterprise and the more coercive police powers available to government. The Clean Air Act also declares that implementation of the pollution prevention goal is primarily the responsibility of the States. 42 U.S.C §7401(a)(3). Thus, as is the case with most federal environmental programs, the pollution prevention mandate has been laid at the doorsteps of the States, with fundamental questions about the scope of the concept still unresolved. Arkansas Issues By its very title, the Department of Pollution Control & Ecology is tagged as part of the old school of environmental U

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regulation. If PC&E were judged by the benchmarks of a control strategy, the State of Arkansas would receive high environmental marks. In the last year, however, PC&E has endured demoralizing attacks on its regulatory credibility at a time when it is registering significant successes. Campaign hyperbole aside, most criticisms reveal that PC&E is not being judged against its mission of pollution control, but rather an iIl-defined notion of pollution prevention. tn many respects, the recent attacks on Arkansas' envi.ronmental record can be traced to the fundamental questions surrounding aU environmental regulation in the Nineties. For instance, should the development of the poultry, swine and dairy industries in West Arkansas be limited or halted through environmental regulation? Should PC&E permit med.ical waste disposal capacity in Central Arkansas in excess of the State's needs? To what extent shouJd a permitting decision by PC&E be swayed by nontechnical concerns such as the effect on surrounding property values or public acceptance? Each of these questions represents the clash between the autonomy traditionally afforded free enterprise and an emerging environmental ethic. Whenever these broad societal lines of thought have a stake in an environmental controversy, the Supreme Court's guidance in Commission 0/1 Pollution Control & Ecology v.james, 264 Ark. 144, S68 S.W.2d 27 (1978) should be consulted. In james, the PC&E Commission had denied a landfill permit because, ;'lter alia, there was no "demonstrated public or private need for the landfill." The Supreme

Court affirmed a Circuit Court's rcvcrs..'ll of the Commission's decision and in so doing, unequivocally stated that whether a particular facility was "needed" was none of PC&E's regulatory business: (lit is clear that the appellee is the owner of the property and he has a fundamentaJ right to engage in a lawful business so long as his conduct conforms to whatever regulations may be in existence in the public'S interest.... ITlhe Arkansas Legislature did not intend for the Commission to require an applicant to demonstrate that he had customers or users for his landfill before he is enHtled to a permit.. Indeed, under the enterprise system, the right or privilege to pursue a legitimate occup.:'1tion is not predicated upon an affirmative showi.ng to a regulatory agency the venture will be a success.

Id.

Thus, the free enterprise system and the fundamental rights of property owners can be invoked as curbs upon PC&E's reguJatory discretion. james also, however, recognizes that property rights have to yield to statutes and regulations adopted in the public interest. In this regard, developments subsequent to james are instructive. After the 1989 and 1991 legislative sessions, "need" is now a pivotaJ issue in landfill permitting. Every permit application for a landfill now must be accompanied by a Certificate of Need from the regional solid waste management board with jurisdiction over the site. A.CA. 搂8-6706. Note that the General Assembly chose a specially created local governmental body rather than PC&E as the decision maker for determinations of "need." James and its aftermath demonstrate the importance of the legislative processes. The prescriptive detail of the General Assembly's 1991 solid waste legislation is not typical. Generally, environmental

legislation in Arkansas is best described as

"enabling": the legislature passes an outline of broad authority for PC&E and expects the agency to fill in the details through adm.inistrative rule-making. In contrast, PC&E regulations cover almost every area of environmental concern, incorporating by reference volumes of federal regulations, then adding provisions specific to Arkansas. The organizations that have rated Arkansas environmental policy low in national rankings have never looked beyond the enabling outline provided by the General Assembly. Practitioners concerned about environmental issues in this state should not make the same mistake. In a state where the frequency and duration of legislative sessions are constitutionally restricted, PC&E's administrative rule-making process is as important, if not more so, that the legislative process itself. Although PC&E is exempted from coverage under the Arkansas Administrative Procedure Act, its rulemaking procedures are essentiaUy identica.l to those set out in the APA. Typically, regulation changes are submitted by the Department staff to the PC&E Commission. These regulations must pass through a review process that includes an opportunity for public comment and staff response. Any difference with the ultimate regulation proposed by the staff may b~ argued orally before the PC&E Commission. PC&E also allows the right of thirdparty petitions for rule-making. Even during the recent period of environmental awareness, this power has been invoked only twice in the last five years. When the

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outrage over commercial-scale medical waste incineration erupted in mid-1991, no one petitioned for a change in the administrative regulations that compelled PC&E's controversial actions. In tead, the legal chalJenges in that controversy focused on the broad definitions and delegate authority set out in enabling statutes, a legal tactic similar to challenging the reasonableness of a speed limit in traffic court. Rational environmentalism must make its presence felt before the biennial sessions of the General Assembly, and in the administrative rule-making process that is constantly in session. In these forums, however, Arkansas environmentalists often complain about the influence of well-

supposedly distills aU individual econonUc motives for consumption, profit and well~ being into wise societal policy, may be blind to issues of long-term and global

scope: People only live once, and even the 70plus years of present expectation are neeting. In the contest over who gets the electricity and who gets the poUution, now and not in the future, it is

to the ... political forum rather than the market that contenders must repair. For these two functions, self-governing people have yet to perfect their political institutions. G. Piel, Only

O"e World 94 ( 1992 ) .

environmental regulation have literally earth-shaking legal and economic implications. othing less than the credibility of progressive environmentalism in Arkansas is at stake. Political Ecology

In the last three decades, the environmental ethic has matured from a cultist ideal into a societal imperative. What will folJow in the field of regulation is a shift in emphasis from a palliative control strategy to correcting the economic myopia ~at rna kes pollution inevitable. Somehow, the environmental imperative must begin influencing: [Tlhe millions of daily decisions thai are the nerves and sinews of Adam Smith's invisible hand, ... address(ingl the deficiencies of our current methods for defining what is progress and what is absurdity. A. Gore, Silpra at 195. As former EPA Administrator William D. Ruckelshaus observes, "lmJodifying the market to reflect environmental costs is necessarily a function of government. " Ruckelshaus, supra. At the national level, the acid rain compromise in the 1990 Clean Air Act illustrates the complexity and controversy of the new approach. Similar issues will be addressed in Arkansas regarding, for instance, the state's bullish animal husbandry industry and its depressed oil industry. How are environmental concerns regarding these activities resolved when in conflict with the expectations traditionally associated with free enterprise? In Commission on Pollution

The Sixties marked the first time that

COlltrol & Ecology v. James, supra, the

humankind viewed its home from outer space. This perspective - now available on

Arkansas Supreme Court earmarked conflicts between private business expectations and public environmental needs as p:>litical questions. In other words" many of Arkansas' most urgent environmental questions in the ineties cannot be answered through executive fiat in response to discrete controversies. Instead, the burden of initiative lies in

financed and organized industry groups on the legislative processes. The existence of lobbyists, however, is simply a fact of life in modem government: Those adversely affected by [environmentaJ regulation), although they may be a tiny minority of the population, often have disproportionate influence on public policy. In general, the much injured minority proves to be a more formidable lobbyist than the slightly benefitted majority. Ruckelshaus, supra at 169. Lobbying is not going to be banned from representative government; therefore, environmentalists must become effective lobbyists. This means making a case to legislative bodies based on science and economic foresight, not theatrical displays designed to impress the media. As discussed below, the prescriptions

suggested by

the latest trends in

posters, T-shirts, and the dust covers of best sellers - reveals the planet as a miraculous but finite cosmic particle: a commu.nity, not a commodity. After thirty years, this image now permeates the public psyche and forces a re-examination of several economic

and legal orthodoxies. For instance, increased environmental awareness has produced a new perspective for judging economic development.

legislative forums. Before the General Assembly, Arkansas

market capitalism often do not account for

environmentalists can no longer indulge in the luxury of being outsiders looking in. Environmental interest groups played a prominent role in the 1991 reguJar session

the debits accrued from decades of treating

and already are preparing for 1993.

the planet as an infinite industrial resource and waste bin. The founder of Scientific American has observed that an economy driven by an "invisible hand," which

Environmentalists, however, must recognize that their worst enemies may be

Proponents of a philosophy of "sustainable growth" argue that the mechanics of free

the few fawning journalists who reduce the complexity of environmentaJ regulation to

an eighth grade intellectual level and attention span. Environmentalism must avoid becoming the victim of its own p:>pular success and renounce its tendency to reduce the cause to bite-sized nuggets sustaining hungry for scandals or catastrophes. When the media paints environmental issues in broad strokes of

black and white, gains in the press become obstacles that must be surmounted to pass

meaningful legislation. The future of environmentalism in Arkansas lies beyond newsworthiness, in the more difficult but far more lasting

course described by Justice Holmes: I have had in mind an ultimate dependence upon science because it is finaUy for science to determine, so far as it can, the relative worth of our different social ends. (lit is our estimate of the proportion between these, now often blind and unconscious, that leads us to insist upon and to enlarge the sphere of one principle and to allow another to gradually dwindle into atrophy. O.W. Holmes, Jr.

"Law In Science-Science In Law," Collected Legal Papers 242 (920). Senator Gore states the same principle in environmental terms: "As changes in our

thinking about the environment take place, we can expand the range of what is poHtically imaginable." Gore, supra at 178. In other words, the crucial environmental

debates of the Nineties -

globally,

nationally, and in Arkansas - are not melodramatic battles pitting good against

evil, or a powerless public against powerful special interests. Rather, what is at stake is an evolutionary reassessment of how human activity impacts the environment, and what government should do to mitigate the damage.

In 1991, the Arkansas legislature proved it will react positively to environmental initiatives if the proponents of progressive legislation demonstrate both reason and a constituency for their cause. Even more

progress is necessary, but possible only if the political djalogue in Arkansas matures beyond glib doomsaying, gamesmanship and personality conflicts. Everyone

concerned about the planet and the Natural Stale should be aware of the legal, economic and constitutional implications of the latest evolutionary stage of environmental regulation. Legislative decisions on these issues will depend on deliberative dialogue between rational citizens, not intemperate rhetoric only fit

for headlines and sound bites.

Steve A. Weawr is the Chief Legal Counsel for the Armnsas Department of Pollution Control & Ecology. He has writ/en several articles for The Arkansas Lawyer and serves on the Environmental Law Committee of the Arkansas Bar Association.

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