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Summer 2014

LESS LIABILITY FOR DRUG DEALERS?

SUPREME COURT STRIKES DOWN PROSECUTION ASSET IN DRUG OVERDOSE CASES


LETTER FROM THE EDITOR

The 2013-2014 academic year proved to be a prolific one in terms of awards and recognitions for the Law School here on the Bluff. Dean Ken Gormley’s Pennsylvania Lawyer article “Heading in the Right Direction” highlights the many programs Duquesne School of Law has implemented in order to give students a more “hands-on” approach to the legal field. Not only has Duquesne School of Law recently become a tier-one law school, but jumped 23 spots in the rankings according to U.S. News and World Report. This type of recognition has certainly helped the school acquire connections to further the quality of education Duquesne School of Law students receive, but overall it has done something more than that throughout my three years on campus, which I had not yet recognized to the degree I did this past year. Students are becoming increasingly involved in activities that have helped further the repertoire of the institution, and have a keen interest in producing works that will bolster our school’s standing in the country’s realm of legal education. From the many successes of this year’s trial and moot court teams at national tournaments, to the Veteran’s Clinic and their free representation of indigent veterans, Duquesne law students are taking note of their ability to push our great school forward. These types of efforts have also been noted in the Juris newsroom, where staff writers and editors have willingly taken time out of their busy schedules to contribute their thought in words on issues from the unionization of NCAA athletes to the current happenings at Duquesne School of Law. This summer issue features stories written by veteran Juris writers, including Lauren Gailey’s feature story on “Combating Modern Slavery,” as well as newly featured authors, such as the feature “E-Discovery Special Masters” story by a 1973 alumna, the Honorable Joy Flowers Conti, the Honorable Nora Barry Fischer and Duquesne alumnus Richard Lettieri. Also featured are the top three winners for the 2nd annual Juris Op-Ed writing competition held this March. Throughout the year, Juris has made efforts to further the publication’s quality for our readership by building off of the solid foundation set by past editors. By expanding our presence online, recruiting works by former Duquesne School of Law students and being stringent about the works we allow in our publication, we hope to be a small part of the ‘new wave’ of factors that are helping Duquesne move onward and upward. With that, I would like to extend my warmest appreciation to all student writers, editors, faculty members and alumni who made this spring/summer issue of Juris possible. Let our new graduates reward our school for the first-rate legal education we received by going into the professional world and making a difference only a Duquesne graduate could. Matthew Beddingfield, 3D, is the Editor-in-Chief of Juris. He is also the president of the Duquesne Intellectual Property Law Association. Upon graduation, Matthew will sit for the Virginia Bar Examination and seek employment dealing with intellectual property or media law in the Northern Virginia/D.C. area.

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JURIS Staff Summer 2014 Editor-in-Chief: Matthew Beddingfield Executive Editors: Eric Donato Terence Falk Web Editor: Matthew Andersen Associate Editors: Lauren Gailey Mike McGraw Staff Writers: Ravi Marfatia Phil Luciano Staci Fonner Chris Allegretti Thomas Cocchi Hillary Cox Judy Hale Reed Brittany Kriebel Jamie Inferrera Amy Coleman Justin D. Norris Kevin Neumar Graphic Designer: Meghan Collins Photographers: Nathaniel Klein Zach Bombatch Multimedia Contributors: Justin Ring Zachary Bombatch Adam Quatrini Alex Pilorusso Lauren Gailey Kevin Shaw Connect with Juris: @JurisDuqLaw /JurisMagazine JurisMagazine.com Cover Design By: Meghan Collins


INSIDE

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Duquesne Docket

Features

The Violence Against Women Act After 20 Years ............2

Combating “Modern Slavery”: Zeroing in on Human Trafficking ....................................................... 12

Duquesne Law Appellate Moot Court Board.....................4 Are You Entitled to Paid Sick Days? ...................................6 Navigating the Red Tape: Is the Cost of Regulation Worth the Burden? ...........................................7

Less Liability for Drug Dealers? ....................................... 14 E-Discovery Special Master Program ............................. 16 College Athletes Step Towards Unionization ................ 18

Schweitzer Fellowship Gives Law Students a Chance to Help ...................................................................8

The Strong Competitors Surrounding Marcellus Shale .................................................................. 20

Professor Gray: 62 Baseball Seizins Worth of Memories ...............................................................9

Op-Ed Winner: Schools’ Punishments Do Not Fit the Crimes ........................................................ 22

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DUQUESNE DOCKET

The Violence Against Women Act (VAWA) After 20 Years:

Celebrations at Duquesne Law By Judy Hale Reed, Staff Writer

All Pennsylvania law schools are hosting special events during 2013-2014 to celebrate the 20th anniversary of the Violence Against Women Act of 1994, most recently re-authorized in 2013. At Duquesne University School of Law, students from the Women’s Law Association organized a week of special events, including an exhibition, information table and a lunch panel. The students organized these events to be held in the week leading up to a special CLE symposium organized by Jane Campbell Moriarty, the Carol Los Mansmann Chair in Faculty Scholarship, Associate Dean for Scholarship and Professor of Law. The school hosted an exhibition of Silent Witnesses, which are stand-alone life size figures of female silhouettes bearing a plaque with the story of one woman who was killed by her abusive partner. Students staffed an information booth all week at noon and 5 p.m. to inform the law school community about resources that are available in Allegheny County to address intimate partner violence. The Women’s Law Association, Indigenous Law Society, Criminal Law Association and Public Interest Law Association co-hosted a panel on Thursday, March 27, 2014, with legal professionals who work on VAWA issues. Panelists included state and federal prosecutors and state-level policy advocates who have worked on state and federal legislation related to gender-based and intimate partner violence. Students learned about the experiences of working with victims and the new provisions from the 2013 renewal. The new provisions expanded who may qualify as a victim, to include male, LGBTQ and Native American victims of violence. This event also provided an excellent networking opportunity for the students who attended. The week culminated in the CLE symposium, The Violence Against Women Act and Its Impact on the U.S. Supreme Court and International Law, on March 29, 2014. The keynote speaker was Cheryl Hanna, Professor of Law and Vice President of Vermont School of Law, who spoke about domestic violence as a human rights problem. Professor Hanna’s comments will be published in a forthcoming edition of the Duquesne Law Review. Dean Moriarty moderated a panel with Patricia Falk (Cleveland-Marshall College of Law), Nancy Chi Cantalupo (Georgetown Law) and Judith Lipton (Case Western Reserve University School of Law). Professor Falk spoke on the rape crisis at colleges and in the military, while Professor Cantalupo 2

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3L Judy Hale Reed poses with panelists from the VAWA’s 20th anniversary event.

spoke about the intersection of Title IX and VAWA. Professor Lipton spoke about her role as a Clinical Law Professor representing abused women and about the proliferation of the “mail order bride” industry. Professor Lisette McCormick of the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness moderated a panel presented by Duquesne’s own Professor Kitchen and 3L Judy Hale Reed. Professor Kitchen addressed the judicial mixed messages inherent in protective orders and the courts’ failure to address the role of mothers in these cases. Hale Reed presented an overview of the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), the U.S. decision not to ratify the convention and discussed the approaches to CEDAW’s implementation in two Islamic Law states, Saudi Arabia and Morocco. Duquesne Law’s agenda for celebrating the 20th anniversary of VAWA was quite robust and provided substantive activities and educational opportunities open to the entire University community. Ms. Hale Reed is a 3L who has worked for gender equality at the community and policy levels both within and outside of the U.S. before she entered law school. She is an active member of the Women’s Law Association at Duquesne University School of Law.


Duquesne University School of Law Federal Practice Clinic Prepares for Trial By Brittany Kriebel, Staff Writer

In January 2014, the Duquesne University School of Law Federal Practice Clinic had its first taste of federal court experience. Two students, second year Ruben Cruz and third year Lauren Sullivan had the opportunity to argue a motion for summary judgment on behalf of the Clinic in front of Magistrate Judge Cynthia Reed Eddy of the United States District Court for the Western District of Pennsylvania. The opposing party lost their motion for summary judgment on the day of the arguments, which was a mini victory for the Clinic, and the Magistrate Judge informed the Clinic she would consider their motion and issue a decision within the next week. A week later, the Federal Practice Clinic received the Judge’s opinion, denying the Clinic’s motion for summary judgment, and recommending the parties participate in mediation and come to a settlement agreement. Not long after the opinion was received, the Clinic participated in mediation where the opposing party would not settle to the Clinic’s monetary settlement demand. As a result of the failed mediation attempt, a trial date was set for the week of March 31. In preparing for the impending trial, the Federal Practice Clinic experienced the workload it takes for one case to be litigated in federal court. The students each had different tasks which included: writing motions in limine and responses to motions in limine; preparing deposition designations; producing demonstrative exhibits; learning how to engage in voir dire; forming an exhibit list; practicing with the opposing party’s attorney to create a joint exhibit list; working on fact

stipulations; studying how to examine, cross examine and object in examining witnesses; learning how to write an opening and closing; and attending a preliminary pretrial conference. After a long two months of meticulous preparations, the students were ready to select a jury on March 26 and begin trial on March 31, however, due to unforeseen circumstances, the jury selection date was moved to May 6 and the trial was pushed back to May 12. Instead of selecting a jury on March 26, the Clinic, judge and opposing party’s attorney engaged in a pre-trial conference where certain trial issues were discussed and resolved. The pretrial order gave the students more assignments to prepare before trial. These tasks included: learning how to use the court’s technology from the courtroom presentation specialist; filing a joint stipulation; ordering the parties to meet and discuss whether certain medical records should be allowed filing a motion in limine, a brief in support/opposition of the motion in limine; finalizing the questions for voir dire; and engaging one last time in settlement discussions. In addition to participating in a district court trial in midMay, two students, Emilia Rinaldi and Ruben Cruz, will argue an appeal in another federal case in front of the United States Court of Appeals for the Third Circuit. The class is currently working on a reply brief for the Third Circuit case. It has been a busy year for the Federal Practice Clinic, but the students have gained invaluable real world legal experience in researching and writing, which will prepare them for their future careers.

In addition to participating in a district court trial in mid-May, two students, Emilia Rinaldi and Ruben Cruz, will argue an appeal in another federal case in front of the United States Court of Appeals for the Third Circuit. The class is currently working on a reply brief for the Third Circuit case. 3


DUQUESNE DOCKET

Duquesne Law’s Appellate Moot Court Board Completes Another Successful Year By Matthew Andersen, Web Editor

In the third year since its inception in 2011, the Duquesne Law Appellate Moot Court Board (AMCB) was able to find great success at competitions around the United States. In each competition, the AMCB teams advanced from the initial rounds of the competitions, with a few teams bringing home numerous awards, and all teams gaining positive feedback and invaluable experience. President Zack Bombatch credits the AMCB’s success to multiple factors: “The AMCB utilized its growing institutional knowledge about the competitions we participated in this year to determine our best advocacy strategies. We were prepared for a multitude of questions from competition judges. Competition judges vary between practitioners and scholars, and they generally have distinctive perspectives and questions about competition problems. Our awareness not only of the substantive law but also the varying approaches to the problems from different judges enabled our teams to address the legal issues from almost every possible perspective. This thorough understanding and recognition of the varying

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perspectives of the problems afforded us success in writing our briefs and advocating during oral arguments.” The AMCB teams’ individual successes throughout the 2013-2014 school year:

ABA Regional Arbitration Competition (White Plains, NY) The AMCB sent two teams to the ABA Regional Arbitration Competition. The teams consisted of 3L students Kaci Young, Benjamin Trodden, Matthew Capan, and 2L students Brandon Uram, Lindsay Fouse, Jennifer Grab, Anthony Jackson and Ian Haley. The teams competed in the first and second rounds of the competition. Both teams finished with high scores and positive feedback from the judges. The teams were coached and prepared for the competition by Director of Appellate Advocacy Erin Karsman, and AMCB co-founder Frank Stoy.


...Our awareness not only of

the substantive law but also the varying approaches to the problems from different judges enabled our teams to address the legal issues from almost every possible perspective.

ABA National Appellate Advocacy Competition (New York, NY) The AMCB sent two teams to the prestigious ABA National Appellate Advocacy Competition Regionals in New York City with hopes of qualifying for the national finals. One team consisted of Kate Montgomery, Emilia Rinaldi, Aaron Weiss, and the other team consisted of Angela Reed-Strathman, Martin McKown and Emily Bittle. Montgomery, Rinaldi and Weiss brought home the fourth Best Brief award, and Weiss was named fifth Best Advocate in the preliminary rounds. Both teams made it to the semifinals, arguing on and off brief four times throughout the competition. Director of Appellate Advocacy Erin Karsman and AMCB member Lindsay Fouse coached the teams. The teams were prepared for oral argument by faculty and alumni of Duquesne Law.

West Virginia University College of Law Energy and Sustainability Moot Court Competition (Morgantown, WV) The team of Aleksandra Kocelko and David Leake won the competition, and the team of David Frantz, Lisa Brunner and Paul Roman made it to the quarterfinals out of 22 teams. Frantz, Brunner and Roman won third Best Brief, and Kocelko and Leake won fifth Best Brief. Leake (third), Kocelko (fifth), Frantz (sixth) and Brunner (ninth) all won Best Oralist awards. The teams were coached by Cara Pinto and prepared for oral argument by Director of Appellate Advocacy Erin Karsman, alumni and other members of the AMCB. The judges for the final round included Judge Fisher from the U.S. Court of Appeals for the Third Circuit, Judge Thacker from the U.S. Court of Appeals for the Fourth Circuit, Judge Stamp from the U.S. District Court for the Northern District of

West Virginia, Judge Keeley from the U.S. District Court for the Northern District of West Virginia and Lawrence Rosenberg, a partner at Jones Day in Washington, D.C. Kocelko and Leake defeated a team from the University of North Dakota Law School in the final round.

Brooklyn Law School Jerome Prince Memorial Evidence Competition (New York, NY) Lauren Gailey and Zack Bombatch won Best Brief at the prestigious Jerome Prince Memorial Evidence Competition. That is back-to-back years that the Duquesne Law AMCB has won best brief at this competition (AMCB Alumni Ginevra Ventre and Ryan Wilk won Best Brief in 2013), making Duquesne only the second team in the competition’s 29-year history to win the Best Brief award in two consecutive years. Gailey and Bombatch made it to the quarterfinals out of 36 teams. The team was coached by Mary Hancock, and assisted by Associate Dean Jane Moriarty, Professor Wesley Oliver, Director of Appellate Advocacy Erin Karsman, alumni and fellow AMCB members in preparation for oral argument.

Federal Bar Association Thurgood Marshall Memorial Moot Court Competition (Washington, D.C.) Andrew Griffin and James Mazzocco made it to the quarterfinals out of 46 teams at the prestigious Thurgood Marshall Memorial Moot Court Competition. This was Duquesne’s first time at the FBA competition. Griffin and Mazzocco defeated teams from Temple University, the University of Virginia and the University of Nevada, Las Vegas, before losing to a team from the University of Maryland by a narrow margin in the quarterfinals. The team was coached by Matthew Andersen and Daniel Sodroski, and prepared for oral argument by Director of Appellate Advocacy Erin Karsman, alumni and other members of the AMCB.

...This thorough understanding

and recognition of the varying perspectives of the problems afforded us success in writing our briefs and advocating during oral arguments.

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DUQUESNE DOCKET

Are You Entitled to Paid Sick Days? By Meghan L. Collins, Graphic Designer

In light of one of the subject matters argued during this year’s 1L oral arguments, this article will speak to the students who argued for the Workers Adjustment and Retraining Notification (WARN) Act. For those unaware, the WARN Act is a federal law that requires companies with 100 or more employees to give at least a 60-day notice of a plant closing. The WARN Act regulates notice, but are there any other federal laws to regulate employee compensation and benefits? As of right now, there are a variety of Department of Labor regulated laws governing healthcare, disability leave and wages in the workplace. These laws, such as the Fair Labor Standards Act, cover issues like: enforcing the federal minimum wage, safety conditions in the workplace, compensation for serious illness developed because of exposure in the workplace and retirement plan regulation. The federal laws governing employee/employer relationships are either very broad (like enforcing federal minimum wage) or very narrow (e.g. Black Lung Benefits Act). Under federal law, it is left to the employer to determine benefit plans and company policies. One of those independently determined policies has started a great, nation-wide debate: paid sick leave. Recently, Bill de Blasio, Mayor of New York City, signed his first bill into law surrounded by city council members at Steve’s Ice Cream in Brooklyn. The new law for New York City requires that employers who employ five or more workers give five days paid sick leave. The paid sick leave legislation, which will affect an additional 500,000 workers in New York City, took effect April 1, 2014.  The New York City bill was met with some opposition in the council meetings due to the implications the law may have on small businesses. This law will make New York City one of seven cities and states in the United States that have a paid sick leave law. The other six areas that have enacted this legislation are: Seattle, Wash.; Portland, Ore.; Washington, D.C.; San Francisco, Calif.; Jersey City, N.J.; and the state of Connecticut. The year 2013 saw three of these bills turn into law, however, in the past three years, 10 states have passed bans of paid sick leave legislation. While another handful of states have grassroots efforts to enact paid sick leave in the next year, 14 other states are evaluating bans on paid sick leave. Those in favor of paid sick leave legislation believe that employees deserve the right to get healthy without fearing the loss of their jobs, that by staying home co-workers will not also become sick and that worker productivity will increase with paid sick days. “No one should have to decide between their paycheck and their health, and thanks to expanded earned sick time, thousands more working families won’t have to face that choice,” said New York City Councilwoman, Margaret Chin. Those in opposition to paid sick leave legislation believe that paid sick leave will significantly increase operating costs 6

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Paid sick leave is likely to

increase the number of sick days employees take. If the paychecks keep coming, why return to work?

— Marjorie Baldwin, business professor, Arizona State University

for small businesses and that it will encourage absenteeism, which is costly to productivity and employer bottom line. “Paid sick leave is likely to increase the number of sick days employees take. If the paychecks keep coming, why return to work?” asked Marjorie Baldwin, a business professor at Arizona State University’s W.P. Carey School of Business. As more and more cities and states move to add paid sick leave legislation to the agenda, this is an issue that will not be going away anytime soon. The U.S. is the only major industrial country that does not have national paid sick leave laws. In fact, some 40 million Americans do not have paid sick leave. There is no federal law on the books, should there be?


Navigating the Red Tape: Is the

Cost of Regulation Worth the Burden? By Jamie Inferrera, Staff Writer

Picture nearly 20,000 pieces of copy paper stacked neatly on top of one another. Over seven feet of paper secured on a dolly, complete with a red ribbon bow. It stands taller than Shaquille O’Neal and it’s quickly creeping up the height of Yao Ming. What is this paper monster on wheels? It’s the “red tape tower.” The paper tower travels around the Washington, D.C. area, mainly through the halls of the U.S. Capitol. It’s surely a conversation piece and it’s frequently spotted in photos on various social media outlets. Actually, it has its own Twitter handle: @theredtapetower. The red tape tower represents all of the regulations associated with the Affordable Care Act. Even before the major policy changes of the Affordable Care Act began to take effect, the bureaucratic regulators were hard at work. Staring at a photo of nearly 20,000 pieces of paper, it is difficult to believe that this landmark policy change is not supposed to cost taxpayers any money. There are regulations at every level of government. Focusing solely on the federal level, legislation passed by Congress oftentimes gives agencies or departments the authority to promulgate regulations to fully implement the legislative policy. The regulations are created through a bureaucratic process referred to as “rulemaking,” which is primarily overseen by the Administrative Procedure Act. The average taxpayer is given an opportunity to provide input on proposed regulations through the Federal Register’s website. The Federal Register is the clearinghouse for all proposed and final regulations. A hard copy of the Federal Register is published annually. The first Federal Register, which was published in 1936, was a mere 2,260 pages. While the number of pages in the Federal Register has been holding steady over the past decade (in the 70,000 to 80,000 page range), it is the

cost of implementing the regulations that ultimately burdens taxpayers. As an example, have you ever wondered why you’re starting to see calorie counts pop up on menus? Buried deep within the Affordable Care Act legislation is a provision that requires all companies with 20 or more restaurants or vending machines to disclose the caloric count of each item. The U.S. Food and Drug Administration estimates that completing the arduous task of calorie counting every food item will take the food service industry about 14 million additional hours of work each year. The National Automatic Merchandising Association also estimated that the cost of implementation can range anywhere from $3 to $100 per machine. In 2010, the U.S. Small Business Administration estimated that the total annual cost of federal regulation was $1.75 trillion. Unfortunately, small businesses tend to suffer the worst from the excessive regulatory burden. The small, family-owned company with only 20 vending machines is still responsible for complying with the regulatory burden of calorie counting. The Competitive Enterprise Institute, which has published a yearly report for the past 20 years on the regulatory burden, estimates that regulatory costs amount to $14,678 per family. On average, the federal government promulgates around 3,500 regulations a year, equating to nine regulations per day. Whether taxpayers realize it or not, Americans are burdened by excessive regulations on a daily basis. Companies are increasingly employing or contracting attorneys to monitor the ever-changing regulatory climate, to interpret and ensure compliance with every nook and cranny. To learn more about the cost of red tape (as well as yellow and green tape, too), take five minutes to watch the House floor speech that earned Pennsylvania Congressman Mike Kelly a standing ovation (http://youtu.be/F1YQDjpuY_U).


DUQUESNE DOCKET

Prestigious Schweitzer Fellowship Awarded to Duquesne Law Student By Eric Donato, Executive Editor

Everyone knows that doctors deserve credit for improving the health and well being of the disadvantaged, but what about lawyers? The Albert Schweitzer Fellowship, which is offered to graduate students who implement a year-long service project that addresses health issues in vulnerable communities, has recently been awarded to Margaret McGannon, a first-year student at Duquesne Law School. McGannon will be the only student at Duquesne Law School to join the Pittsburgh Schweitzer Fellow class of 2014-2015, and is one of a comparatively small number of law students offered the award. McGannon said she applied for the fellowship because she developed a desire to serve and learn from others while she was an undergraduate student at Saint Joseph’s University in Philadelphia. “I bought into the whole Jesuit education, like learning from those you’re trying to help,” Margaret McGannon said McGannon. “I guess I was inspired to apply for it because I learned in undergrad that service was a great way to sort of enhance your education and I felt that there was less of an opportunity to do that in law school.” McGannon, who is still in the process of developing her service project, hopes to improve the Allegheny County Jail’s re-entry program and thereby help incarcerated individuals transition back into society upon release. “People in the system [are told] that society doesn’t care about them, and that we don’t want them to be in society, and that message continues to be told to these people even after they’re released,” said McGannon. Christy Gamble, a 2013 graduate of Duquesne Law School and Health Legislative Fellow for the US Senate, decided to enroll in the Schweitzer Fellowship in 2011 because of her interest in health policy. She was the first student from Duquesne Law School to be selected for the program. Gamble’s service project focused on teaching students a health policy-based program at Neighborhood Academy, a college preparatory high school located in Pittsburgh designed to address the academic needs of children suffering from financial hardship. “I would have lectures on… what is health policy, how does Christy Gamble 8

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your socioeconomic status impact health, and then towards the end [the students] were given a project to come up with an environmental justice documentary or a little skit or film to teach other students and their community about what is environmental justice,” said Gamble. Enrollment in the prestigious Schweitzer Fellowship is by no means guaranteed for those looking to participate. The application requires potential recipients to do substantial research in order to locate an underserved population and to then formulate a program to directly serve that population. An impressive, well-researched program plan will land the applicant a place in the Fellowship’s competitive interview process. All potential Fellowship recipients are put through several traditional interviews, and then broken into groups for a fast-paced project intended to gauge how well they work with others and whether they can create a quality program. “They say, ‘Read this, figure out a program that works with any issues that you see, and come back and present it to us in 20 minutes,’” said Gamble. “They’re basically looking to see who stands out in the crowd.” The Schweitzer Fellowship accepts applicants from a wide range of academic and vocational backgrounds. “What we want [in a service project] is something that reflects your passion, not necessarily your education or training,” said Joan Haley, Executive Director of the Pittsburgh Schweitzer Fellowship Program. Haley came to Duquesne Law School in January to discuss the program with potential applicants from the student body. Valarie Blake, a professor at Duquesne Law School who participated in the Schweitzer Fellowship in 2008, said that “there are very few programs out there that are like Schweitzer, in that it really does allow you to work on an autonomous project and use the public’s resources to do it, but you’re kind of really on your own in developing something.” Blake’s project originally focused on educating elementary school-aged children about mental health issues because empirical data suggested problems like anxiety and depression manifest early in a child’s life. The bureaucratic hurdles of implementing her project, however, led her to change her program to ascertaining what sort of legal needs low-income individuals who sought medical attention required. “The idea was that often hospitals are a place where lowincome, high-legal need people will present themselves, and perhaps they’re not thinking about their legal needs at the time, but this is a way to sort of capture them in the community,” said Blake. Gamble said that one of the most important aspects of implementing a service plan is to make sure that it is responsive to the needs of the community. “Go and say, ‘What do you need help with? You have free labor, you tell me what would you like to see done, and we can do it,’” said Gamble.


Property of Professor Gray:

62 Baseball Seizins Worth of Memories By Michael McGraw, Associate Editor

Baseball, it is said, is only a game. True. And the Grand Canyon is only a hole in Arizona. — George F. Will

To hear Professor Kenneth Gray discuss his passion for baseball is to concomitantly hear about his life. Baseball is a prism through which his story can be told, marking the passage of time, punctuating and cataloging life’s events. Professor Gray’s love for the sport is transparent. Anyone who has taken one of his classes knows that the sport often makes its way into his lectures into his lectures, such as analogizing a famous comment by baseball umpire Bill Klem to the common law method or converting an otherwise indistinguishable casebook note into a recital of “Tinker to Evers to Chance,” a poem about the 1908 Chicago Cubs’ double play combination. Gray’s devotion to baseball emanates from his late father and his New York roots. Growing up in Yonkers, New York, Gray and his father would travel to Yankee Stadium to see the Yankees, including Gray’s first game in 1952, when he was eight years old, the Polo Grounds to see the Giants, and on rare occasions, to Ebbets Field in Brooklyn to see the Dodgers. “Growing up in New York, you had to be a fan of one of the three teams,” Gray explains. “In fact, in school…they would stop class in the afternoon and put the [World Series] on.” Gray speaks reverently when discussing the baseball announcers of those games, who provided a personal conduit between the team and fan. “I grew up listening to Mel Allen, Red Barber, Vin Scully, Jim Woods and Russ Hodges. They broadcast games in a way typically you don’t have today. It was very literate. They created the impression that it was important. That every game involved a dramatic story.” Although Gray and his father shared an affinity for the sport, they did not share rooting interests. “The Giants had their ups and downs, and certainly with my father rooting for them, I wasn’t going to root for them, so I rooted for the Yankees.” Gray’s allegiance to the Yankees is unmistakable. He discusses Yankee greats as if they were pals from an old

neighborhood: Joe DiMaggio is “Joe D,” Reggie Jackson is “Reggie,” and Mariano Rivera is “Mo.” When the New York Mets are broached, Gray deadpans, “Who cares?” Before discussing Fenway Park in Boston, ballpark of the long-time Yankee rivals, Gray prefaces with an obligatory disclaimer: “You understand I am not a Red Sox fan.” Despite moving from New York, Gray has seen at least one Yankee home game for the past 62 seasons. Gray, a partial season ticket holder to both the Pittsburgh Pirates and Cleveland Indians, estimates that he now sees about 60 games a year at various ballparks and has witnessed some of the game’s most historic moments.

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Gray has attended more than 3,000 games, including 19 World Series games and 10 All-Star games. He has been to 50 major league ballparks and 26 of the current 30. He saw the only perfect game in World Series history when the Yankees’ Don Larsen accomplished the feat in the 1956 World Series. He saw Jim Bunning throw a perfect game in 1964. He saw Roger Maris break Babe Ruth’s single-season home run record with his 61st home run in 1961. He was at the Giants’ last baseball game in New York in 1957. He saw the Pirates’ Rennie Stennett go 7-for-7, becoming the only player in the 20th century to do so in a 9-inning game. Gray eagerly tells the story of how he wound up at Larsen’s perfect game. Gray’s father, a city clerk for Yonkers, found two tickets at work, which were actually intended for his cousin. In what resembles a property exam fact pattern regarding lost or misplaced personal property, Gray’s father grabbed the tickets and would later witness baseball history with his son. As a first-hand observer of 60-plus years of baseball, Gray has developed opinions on various topics. • Best overall player? “Willie Mays is by far the greatest player I ever saw.” • Best clutch hitter? Yogi Berra. • Best pitcher? Bob Gibson. • Best relief pitcher? Bruce Sutter. • Best team? The 1961 Yankees. • Best current ballpark? Safeco Field in Seattle, with a qualifier though: “I have never met a ballpark I didn’t like.” • Best past stadium? “For sentimental reasons, obviously the parks I grew up with—Yankee Stadium and the Polo Grounds.” • Best food? Crab cakes in Baltimore and bratwurst in Milwaukee.

• A must at each game? A hot dog and keeping score, as he has kept score since that first game in 1952, and plans to have his scorecard collection buried with him. Through his educational and professional pursuits, Gray has lived in four traditional baseball towns: New York, Boston, Chicago and Pittsburgh. While in Boston obtaining his J.D. and M.P.A. from Harvard, he found his way to many games at Fenway Park. “People who worship Fenway Park now—I went up there in the fall of 1966 and they all wanted a new ballpark. They didn’t realize what they had.” Gray then moved to Chicago, where he worked in private practice while also later teaching at Chicago-Kent College of Law. While there, Gray enjoyed both White Sox and Cubs’ games at Comiskey Park and Wrigley Field, respectively. In what only seems like a natural fit, Gray’s first date with his wife was at a White Sox game. “It was July 1970…We sat behind the first base dugout. She pretended to like baseball better than she did,” Gray fondly remembers. He laughs as he remembers a couple of times telling his wife that he was going to the office but instead driving up to Milwaukee to watch a game. “I didn’t do that very much, but she didn’t catch on. She never audited the scorebook.” After 30 years of marriage, Gray’s wife passed away from cancer in 2001. Gray, who is adamant about never leaving a game early, remembers a doubleheader he attended with his wife while she was pregnant with their son. “During the second game, she was feeling sick and wanted to go home, and I never leave—but I guess that dictated that we better leave,” Gray lightheartedly recalls. Gray jokes that he “inoculated” his son with baseball. Gray’s son, a lawyer in Washington, D.C., is not an enthusiast like himself, but the two enjoy games together when the chance presents itself. With each fascinating baseball story he tells comes a compelling story of family, education, or career, all of which has left Gray to conclude that he has enjoyed a fulfilled life, despite the sorrow from his wife’s health struggles and passing.

With each fascinating baseball story he tells comes a compelling story of family, education, or career, all of which has left Gray to conclude that he has enjoyed a fulfilled life, despite the sorrow from his wife’s health struggles and passing.

Prof. Kenneth Gray

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Duquesne Alumn Operates Legal Clinic to Help the Homeless By Eric Donato, Executive Editor

Last year approximately 15,000 Pennsylvania citizens were homeless, according to the National Alliance to End Homelessness. Mary Bates, who graduated from Duquesne Law School in 1998 and is Chief Legal Officer of the City Mission in Washington, Pa., understands the serious legal challenges presented by that statistic. Bates operates a legal clinic through the Washington City Mission that is designed to deal with the legal problems experienced by those who suffer from homelessness. The Mission is a faith-based charitable organization that feeds and shelters the homeless with the goal of transitioning them back to independent living conditions. The organization offers a wide variety of services, including medical assistance, drug and alcohol addiction classes, and with Bates’ help, legal services as well. “They can come here to find Christ and to do some rehabilitation, and our legal clinic can help them with any legal matters that they might have,” said Bates. When Bates says any legal matters, she’s not kidding. She has helped clients handle DUIs, expunge criminal records, acquire protection from abuse orders and secure public housing. She has even helped a client avoid jail time over an enormous number of unpaid parking tickets, and is currently working to prove a client’s Native American ancestry so he can live with his Apache tribe. Bates operates the clinic with the help of two volunteer attorneys. Bates said she got the idea of creating the legal clinic because residents at the Mission, knowing that Bates was a lawyer, would often approach her with their legal problems. Her role as a corporate, in-house lawyer for the Mission, however, didn’t lend itself to providing the types of legal services that the residents required. “They would say to me ‘Well, hey, I have a DUI, can you help me?’ or ‘I need to get a [protection from abuse order] against somebody’ and I thought to myself, how can I tell these people no?” said Bates. Bates educated herself about the relevant legal issues and began volunteering her time to provide legal assistance to the Mission’s residents. She eventually convinced the Washington City Mission’s Board of Directors to make providing those types of legal services a part of her job position. The clinic has been operating in that capacity for at least six years, said Bates. “The legal clinic was really born out of need,” she said. “These people are here, they’re our brothers and sisters in Christ, they need help, and we as attorneys have this special skill…we should really help them.”

I felt that Duquesne always

inspired the students to give back.

Bates said she assisted about 60 clients through the clinic last year. Bates has received accolades for her service in connection with the legal clinic, including the National Legal Services Corporation’s Pro Bono Service Award and the Louis J. Goffman Award for Outstanding Pro Bono Support and Service. Bates’ relationship with the Washington City Mission started when she began volunteering for the organization several years ago. “When I got here everybody was just so wonderful for everything that we did for them, from serving meals to painting walls…everybody was just so grateful, and I ended up volunteering more and more, and the more I volunteered, the more I wanted to give back,” she said. Bates subsequently served on the Mission’s Board of Directors, and was then hired full-time as in-house counsel. Bates said she knew, even when she was a law student at Duquesne University, that she wanted to do pro bono work. “I felt that Duquesne always inspired the students to give back,” she said. “It wasn’t until I got out in the working world that I realized it’s pretty hard to do. You’ve got to pay your student loans, you’ve got to take care of your family, and try and make time to do things for others in order to give back.” 11


Combating “Modern Slavery”:

Federal Prosecutors Zero in on Human Trafficking By Lauren Gailey, Associate Editor

Human trafficking is a global crisis of shocking proportions. According to the 2013 Trafficking in Persons (TIP) Report, a joint effort on the part of the U.S. Department of State and the governments of other countries to track the problem, 27 million men, women and children have been induced by force, fraud or coercion to participate in the sex trade, forced labor or domestic servitude. In a 2012 speech reaffirming the U.S.’s commitment to fighting trafficking, President Barack Obama emphasized that “the injustice, the outrage, of human trafficking . . . must be called by its true name—modern slavery.” Harriet Tubman, the leader of the Civil War-era Underground Railroad, is often quoted as saying, “I freed

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thousands of slaves; I could have freed thousands more if they had known that they were slaves.” Like the slaves Tubman devoted her life to helping, many victims of trafficking do not realize that they are victims, instead mistaking their oppressors for employers or romantic partners. Many victims are members of vulnerable populations, such as undocumented immigrants with language barriers, minors, the homeless, substance abusers and the poor. According to the TIP Report, “[t]raffickers prey on victims’ hopes for a better life.” Because some do not self-identify as victims and others do not seek help due to isolation and fear, only 40,000 trafficking victims were identified in 2012—just over one thousandth of one percent of the estimated worldwide total.


For Judy Hale Reed, a 2014 graduate of the Duquesne University School of Law who has worked on anti-trafficking efforts at the community, state and national levels in the U.S. and the Republic of Moldova, the relative invisibility of trafficking is one of the most difficult challenges governments face in trying to eradicate it. Hale Reed, who coordinated Moldova’s anti-trafficking and gender equality resources and helped to implement laws while working for the Organization for Security and Co-operation Judy Hale Reed in Europe, explains that “numbers are a perennial problem with this hidden crime.” Hale Reed agrees with U.S. Attorney for the Western District of Pennsylvania David Hickton that “[m]any of these victims are hiding in plain sight.” Hickton declared his office’s commitment to finding them when he announced in November 2013 that its Civil Rights Section would be zeroing in on trafficking crimes. “Human trafficking is a civil rights issue that does, indeed, exist in Pittsburgh,” Hickton wrote in an article published in the April 2014 issue of the Allegheny County Bar Association’s Lawyers Journal. “Our work has sent a clear and critical message: In this country, under this administration and in this district, human trafficking crimes will not be tolerated.” The U.S. Attorney’s Office obtained its first child sex trafficking conviction when a Hill District man pleaded guilty in October 2013 to prostituting a 15-year-old girl in a case prosecuted by Assistant U.S. Attorney Jessica Lieber Smolar. The plea agreement carried a 12-year prison sentence. The U.S. Attorney’s Office has also successfully prosecuted cases

involving the forced labor of illegal workers and a 12-year-old girl in the Philippines who was coerced into performing in a live online sex show. Hale Reed predicts continued success in these efforts to investigate and prosecute human trafficking crimes. “The significance of any law enforcement entity getting training on trafficking is that they will see it once they know that it exists,” she explains. As her law school career drew to a close, Hale Reed came full-circle when she put her unique skill set to use as an intern in the U.S. Attorney’s Office, where she researched trafficking cases. Working with AUSAs like Smolar on a variety of projects offered her a “breadth of practical experience,” she says. Hale Reed is grateful that the internship gave her the opportunity to combine her legal education with her passion for working to bring an end to “modern slavery.” She is encouraged by the increase in the public’s awareness of trafficking, which is reflected in “a spike in reporting on human trafficking in the U.S. press, responses from shelters and NGOs, and student activism,” in addition to the U.S.’s participation in the TIP Report. “Public awareness contributes to a significant improvement in identification and reporting of [trafficking] cases because many cases are hidden in plain sight,” Hale Reed explains. The continued focus on trafficking at the highest levels of government can only be expected to increase awareness further. In the words of Secretary of State John Kerry, “Human trafficking is an assault on our most dearly held values of freedom and basic human dignity.”

Public awareness

contributes to a significant improvement in identification and reporting of [trafficking] cases because many cases are hidden in plain sight.

” 13


Less Liability for Drug Dealers?

Supreme Court Strikes Down Prosecution Asset in Drug Overdose Cases By Kevin Neumar, Staff Writer

Graphic by Meghan Collins

Police bust open a door and arrest a drug dealer who sold a deadly batch of heroin to a drug addict. As the handcuffs are being locked, the dealer says, “You have no proof. My drugs didn’t kill him; he always did meth when he got high.” What does the prosecution need to prove to convict the drug dealer for the drug addict’s death? The Supreme Court of the United States, in a 9-0 ruling, held that when prosecuting a drug overdose case, the prosecution has to prove the drug the defendant sold to the decedent was the but-for cause of the death. The original case was tried after a man named Banka, who had a history of drug use, overdosed late one night at his apartment. His girlfriend testified that, along with a cocktail of other drugs, including marijuana and oxycodone, he cooked and injected heroin that was bought from the drug

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dealer Burrage. At trial, Burrage pleaded guilty to the unlawful distribution of heroin and that the “death…resulted from the use of that substance.” This meant that Burrage was subject to the mandatory minimum sentence provided by the Controlled Substances Act 21 U.S.C. Ss 841(b)(1)(c). Medical experts subsequently testified at trial and stated that Banka may have passed away regardless of the heroin use. Burrage then moved for a judgment of acquittal arguing that Banka’s death may only “result from” heroin use if there was evidence that heroin was the but-for cause of the death. This motion was denied by the trial court, and the court instructed the jury that the “result from” language in the statute meant the government only had to prove the heroin was a contributing factor in the death. The Court of Appeals for the Eighth Circuit affirmed this ruling and Burrage petitioned for cert to the Supreme Court


of the United States. Justice Scalia, writing the opinion for the court, discussed whether the “results from” language in the statute meant there needed to be actual cause (the but-for element), or as the government argued, a contributing factor to the death. The first count regarding the distribution conviction was not at issue. The Court first discussed the language of the statute and noted that the default sentencing provisions regarding drug distribution do not apply when “death or serious bodily injury results from the use of [the distributed] substance.” Regarding these cases, the statute states that the defendant “shall be sentenced to a term of imprisonment which…shall be not less than twenty years or more than life,” a substantial fine, “or both.” The court further reasoned that because the “death results” provision increases the penalty substantially, that this is an element that must be submitted to a jury and found beyond a reasonable doubt. The Controlled Substances Act did not supply a definition for the term “results from” and the Court decided to give it its ordinary interpretation. This interpretation, as the Court held, is that “results from” indicates a but-for requirement. Different language would have been used by Congress, as the Court argued, if it was simply just a contributing factor in the death. The Government contended that the particular problems associated with drug overdoses evidence support for the omission of the but-for causation requirement. In support of this argument, the Government cited a statistic from the National Center for Injury Prevention Control, which showed that 46 percent of overdose deaths in 2010 resulted from more than one drug being used. Because of this, the Government should only prove that the drug was a contributing factor in the death, and the cumulative effect of all the drugs was the but-for cause of the death. The Court rejected this argument and stated that it’s the job of the courts to interpret statues, even if some alternative outcome is more in “accord with good policy.” The Court ruled that unless the drug used that was distributed by the defendant is an independent sufficient cause of the victims death or serious bodily injury, the sentencing enhancement provision will not apply. Professor Oliver, professor of criminal law at Duquesne University, stated that this is a “special permutation of

the felony murder doctrine…because it punishes people irrespective of intent or recklessness.” The heroin dealer would not have the homicidal mens rea, “or was not even reckless in regards to the death so long as the user used it in a quantity that was normal.” But this, as Professor Oliver pointed out, brings up the next logical question which is “what if the user takes more of the drug than is normally taken by an average user, unreasonably more than the average user?” This question, along with the Court’s ruling, comes at a time where drug overdoses have been brought to the forefront of our attention. Recently, Academy Award-winning actor Philip Seymour Hoffman died from a heroin overdose. In addition, as many as 22 people have died in the Pittsburgh area as of January 19 because of a bad batch of heroin. It will be interesting to see how courts tackle the question raised by Professor Oliver. While these dealers may be sentenced under the distribution provision of the statute, federal prosecutors just got handed a whole new deck of cards if they pursue the “results from” death provision.

Recently, Academy Award winning actor Philip Seymour Hoffman died

from a heroin overdose. In addition, as many as 22 people have died in the Pittsburgh area as of January 19, because of a bad batch of heroin.

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This article originally appeared in the April 2014 issue of The Federal Lawyer.

E-Discovery Special Master (EDSM) Program By Hon. Joy Flowers Conti, Hon. Nora Barry Fischer, and Richard N. Lettieri, Esq.

In 2011, the U.S. District Court for the Western District of Pennsylvania became the first federal court in the nation to create an E-Discovery Special Master (EDSM) Program. After three years of implementation, the judges share the experience of lawyers, judges, and EDSMs who have participated in the program, the benefits received, “lessons learned,” and their expectations for the program going forward, for consideration by lawyers and judges from other jurisdictions.

Progress Update In May 2011, the U.S. District Court for the Western District of Pennsylvania established the first E-Discovery Special Masters (EDSM) program in the nation to aid the court and the local bar in resolving issues in cases involving electronically stored information (ESI). This program was created to provide technical expertise to the local federal court and bar in light of evolving ESI case law, constant changes in technology, and the belief that ESI is a continually evolving area that requires the application of specialized knowledge.

Brief History The program involved the selection, training, and maintenance of a panel of qualified EDSMs that the parties and the court could use to address ESI issues that may arise during the course of litigation. The court determined that this resource was necessary based upon the dramatic increase in electronic evidence, including social media, and the slow but steady increase in ESI issues arising in litigation. Hence, the court appointed a subcommittee to delve into these issues, and the EDSM program was developed. The February 2011 issue of The Federal Lawyer highlighted the creation of this program in “Creating the Criteria and the Process for Selection of E-Discovery Special Masters in Federal Court.” The selection of EDSMs was based upon their (1) knowledge of e-discovery, (2) experience with e-discovery, (3) relevant litigation experience, and (4) training and experience in mediation. After completing a detailed application process, the candidates were evaluated, and those who qualified were required to complete a court-approved training session prior to being admitted to the program. After an individual who became a panel member was selected to serve as an EDSM in a particular case, the court considered various factors and used

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an order that clearly defined the duties and responsibilities of the EDSM in that case. Since the inception of the program, the subcommittee of the court, comprising judges, court staff, and local practitioners, has monitored and directed its implementation. As part of this process, the subcommittee undertook a number of specific activities in 2013 to assess (1) the effectiveness of the program, (2) suggested improvements in its implementation, and (3) “lessons learned,” for our use and the benefit of others. This article describes each of these activities, shares the data or anecdotal information resulting from each, and attempts to assess the progress made toward the objectives listed above. More detailed information concerning each activity is provided in three brief appendixes at the end of the article, so that readers can review the data from which the authors’ conclusions are drawn. While the EDSM program has been a helpful tool to the court and many litigants, the data and observations illustrate its “work in progress” nature. Final conclusions regarding the ultimate utility and value of the EDSM program may still be several years off.


Hard Data from Reports In 2009, the court modified its local rules to reflect changes in the Federal Rules of Civil Procedure (FRCP). One of those changes added section 11 to the form of the Rule 26(f) report to be filed with the court. That section requires participants to discuss key ESI issues at the Rule 26(f) “Meet and Confer” and report the progress of their discussions to the court. The subcommittee believed that the Rule 26(f) reports that had been filed with the court might contain valuable information which could be studied to determine how often ESI issues arise in cases in this district. After assessing the capabilities and resources available, the subcommittee agreed on a modest effort to review two sets of section 11, Rule 26(f) report data as submitted. Data from 54 reports from March 2010 were compared with data from 68 reports from March 2012 While by no means scientific or statistically valid, the subcommittee believed that this method of reviewing the comparative data provided a snapshot to consider possible changes that might have occurred regarding ESI in litigation filed in the court over the two-year time period. The key questions that the subcommittee expected the data to address were: 1. Had there been any noticeable changes relative to ESI recorded in these reports over the two-year time period? 2. If so, how might any changes be interpreted?

Interpreting the Data Appendix A (available online at www.jurismagazine.com) highlights the data from the analysis of the reports. The response to Question 2 provides the answer to one of the subcommittee’s fundamental questions. In answer to the question: “Of the lawyers using the correct form that included the Section 11 related to ESI, is either party seeking ESI?” there was a slightly greater than 24 percent increase (from 50 percent in 2010 to 74.07 percent in 2012) in the number of parties who were seeking ESI during this two-year period. It is difficult to draw conclusions based upon so little data, but the opinions of the members of the subcommittee were mixed regarding the relatively small increase. It appeared to be inconsistent with the active educational role assumed by members of the subcommittee and the judges. Their active participation in the Federal Bar Association (FBA)-sponsored “E-Discovery Series” of quarterly ESI educational sessions initiated in 2007, as well as other ESI education sponsored by the local and state bars, had led them to believe the increase in ESI awareness among litigators would be higher. The expectation of several of the subcommittee members was that more than 74 percent of the litigators in federal court would be seeking ESI in their cases.

Since the inception of the

program, the appointment of an EDSM has been considered the exception, not the rule.

While it was important to interpret correctly the significance of the 24 percent increase in cases in which the parties indicated that ESI was an issue, the subcommittee was also interested to learn whether there was a corresponding increase in EDSM appointments, and if so, whether there was a correlation between the two increases. It reported that since the program became operational in May 2011, 13 EDSMs had been appointed. While there had been a gradual year-to-year increase in appointments over this period, the total number was small. Since usage is one reasonable factor in assessing the value of the program, the subcommittee wondered why the parties did not request, or the court appoint, EDSMs more often. Was it reasonable to assume that a 24 percent increase in awareness might result in a corresponding increase in the number of appointments? Assuming that the number of Rule 26(f) Reports the court reviewed for 2010 and 2012 (54 and 68 respectively) were typical, the number of annual reports submitted would range from approximately 600 to 800, making the small number of EDSM appointments statistically insignificant. Using the limited data available, the subcommittee concluded that based upon usage alone, the EDSM program had minimal impact in most cases, but in cases where an EDSM was appointed, the court and parties found significant benefits. Since the inception of the program, the appointment of an EDSM has been considered the exception, not the rule. Clearly, all cases do not lend themselves to the appointment of an EDSM. Resolution of ESI issues by agreement of the parties is not only preferred but encouraged. Only after it is clear that resolution is not possible is the EDSM option to be considered. Judicial discretion is also important. While usage is important to measure, and will provide a baseline for continued measurement over time, other factors like the benefits received from the appointment of an EDSM by the parties and the court are viewed as more important indicators of effectiveness. So much for the hard data. Hence, the subcommittee questioned: was there any other evidence upon which a reasonable evaluation might be based?

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College Athletes Take Major Step toward Unionization By Ravi Marfatia, Staff Writer

When you think of unions in employment situations, you might think of the United Steelworkers Union or the American Federation of Teachers. What you do not think of are student athletes at major Division-I colleges and universities. However, the latter has become a reality. A group of Northwestern football players appealed to the local chapter of the National Labor Relations Board (NLRB), marking the first effort by college athletes to join a labor union. On Jan. 28, 2014, Kain Colter, the starting quarterback of the Northwestern University Division-I football team last year, along with Ramogi Huma, the president of the newly created College Athletes Players Association, and Leo Gerard, president of the United Steelworkers, filed a petition to the local chapter of the NLRB on behalf of the Northwestern football team to seek union representation. This is the latest move that is attempting to give college athletes a voice regarding amateurism rules mandated by the NCAA. “College athletes need a labor organization that can give them a seat at the table,” Huma told the New York Times. While the NCAA generated $913 million in total revenue, $527.4 million of which was distributed to Division-I colleges and universities, the college athletes will not initially be seeking monetary compensation for their play on the field. Instead, the College Athletes Players Association, which would represent the Northwestern football players, believes that collective bargaining will help college athletes get long-term medical coverage, increase the value of scholarships and allow college athletes to profit from the use of their likeness. The labor law dispute that the Chicago NLRB chapter was asked to rule on essentially came down to whether college athletes can be considered as employees of the college or university they play for. Huma believes there is no way that college athletes can be considered as just students. As he told the New York Times, “If college athletes are primarily students, they should not devote 40 hours each week to training, traveling and practicing when their graduation rates are only 50 percent.” It turns out the Chicago district of the NLRB agrees with Huma and the Northwestern football players seeking to unionize. In a historic decision, the NLRB ruled that Northwestern football players qualify as employees of the university and can unionize. The NLRB regional director, Peter Sung Ohr, based his decision on several factors including the players’ time commitment to their sport and that their

scholarships were directly tied to their performance on the field as reasons for granting them union rights. Ohr believes that college athletes fall squarely within the National Labor Relation Act’s (NLRA) broad definition of the word employee. Some legal scholars agree with Ohr’s reasoning. “I support a broader definition of ‘employee’ for interpretation of the NLRA as well as for interpretation of some other statutes, such as Title VII,” said Professor Rona Kitchen, a labor law professor at Duquesne University School of Law. However, that doesn’t mean she agreed with Ohr’s ultimate ruling. “That being said, I am not sure whether student athletes are among those who should fall into any definition of employee,” added Professor Kitchen. Understandably, not everyone is thrilled about this decision. The NCAA’s chief legal officer, Donald Remy went on record to say, “While not a party to the proceeding, the NCAA is disappointed that the NLRB Region 13 determined the Northwestern football team may vote to be considered university employees. We strongly disagree.” Despite Remy’s objections, Northwestern football players did vote on whether or not to join a union on April 25, 2014. The results of the vote have been sealed, pending Northwestern University’s appeal to the national NLRB office. The NCAA isn’t the only party that may be against the unionization of college athletes. Pat Fitzgerald,


I do agree that student athletes are often treated unfairly by their

universities and that there should be some mechanism for ensuring that their contribution to the university is recognized and that they are properly compensated and their rights, as students, are protected. — Professor Rona Kitchen, labor law professor

head football coach of Northwestern University is also against the unionization of his football team. “I believe it’s in their best interests to vote no,” said Fitzgerald to ESPN, referring to his football team’s union vote that took place April 25. Trevor Siemian, a current quarterback on Northwestern’s football team has said that unionizing might hurt the team’s goal of winning the Big Ten, referring to the athletic conference Northwestern is a member of. The NCAA’s treatment of college athletes has been a very controversial issue in the national media recently. Responding to the large amount of criticism, the NCAA has attempted to effect change. For example, they just recently passed Proposal 2013-31-B, which has the effect of allowing member institutions to treat food and snacks athletes receive as a benefit

incident to their participation in athletics. NCAA president Mark Emmert has also pushed for a $2,000-per-player stipend to help college athletes pay from other incidental expenses. Nevertheless, people still feel that college athletes are being taken advantage of. “I do agree that student athletes are often treated unfairly by their universities and that there should be some mechanism for ensuring that their contribution to the university is recognized and that they are properly compensated and their rights, as students, are protected,” said Professor Kitchen. Many people share that sentiment. Regardless of whether the players do vote to unionize, or Northwestern wins its appeal, the mere attempt has certainly brought light upon a very interesting issue and change is certainly forthcoming.

E-Discovery Special Master (EDSM) Program (Continued from page 17) Progress and Perspectives On Sept. 12, 2013, members of the subcommittee participated in an FBA-sponsored, “E-Discovery Series” luncheon event entitled, “E-Discovery Special Master (EDSM) Program: Progress and Perspectives.” The panel was organized with the goal of sharing firsthand experiences from attorneys and judges who had participated in cases involving the appointment of an EDSM. Appendix B lists the participants, the questions, and a summary of the responses provided. To a large extent, the two lawyers who participated in the session felt that the EDSM appointment in their individual cases was effective, saved money for their clients, and reduced the time required to resolve ESI issues. These views were further confirmed in confidential surveys received by the court from EDSMs who had been appointed. From a judicial perspective, the EDSM appointments were also deemed highly successful. In cases where counsel had experience with ESI, it was reported that the parties appreciated the knowledge and experience of the EDSM, which led to more focused discussions, less contention, and faster resolution of ESI issues. It was also recounted that less experienced counsel welcomed a knowledgeable

EDSM who, in some instances, served as an e-mediator tasked with resolving issues in a neutral environment of cooperation and trust. The judges commented that sometimes these e-discovery counsel are being hired as co-counsel or to provide discrete advice to one party, and that litigants often forgo e-discovery based upon the small size of the case. A recurring theme of participants at this session was the realization that the EDSM, serving as an e-mediator early in the discovery process, can be very effective. As a result of this session, an effort to incorporate e-mediation into the well-established alternative dispute resolution program in the court is now being evaluated. A pilot program utilizing EDSMs as e-mediators is expected to be launched in 2014. This input was pivotal in confirming the value to the parties and the court of the EDSM program. Although it remains unclear how widespread the usage of EDSMs might become, experienced litigators have reported that the appointment of an EDSM in an appropriate case is a more efficient and cost-effective way to resolve e-discovery disputes than litigating ESI issues using traditional motions practice. Continue reading this article at www.jurismagazine.com. 19


Economy vs. Environment: The Strong Competitors Surrounding Marcellus Shale By Christina Burik, Contributor

The buzz about the effects of Marcellus Shale has been sweeping headlines across the globe, offering very diverse opinions in support of and opposition to the impacts of developing this resource. Most competing opinions value the economic benefits or fear the environmental risks involved in drilling into the Marcellus Shale rock formation, which produces natural gas. Proponents of the Marcellus Shale argue that it promotes a viable green economy by creating jobs, lowering energy costs and carbon emissions and potentially supplying the United States with 90 years of domestically produced energy. Those who oppose the development of Marcellus Shale raise concerns about its potential effects on the environment through possible water contamination, air pollution and seismic disturbances. However, no matter what side of the debate one agrees with, there is a dire need for reliable research to conclusively determine what the long term environmental effects will be to ensure that the economic benefits of Marcellus Shale outweigh the potential future costs of environmental damages. Pennsylvania was the center of the country’s rejuvenated interest in Marcellus Shale as a resource, starting in 2004 when Range Resources-Appalachia, LLC discovered that the formation could be hydraulically fractured to produce natural gas. Hydraulic fracturing is a drilling process that was first used commercially in 1949 and developed in Texas on a large commercial scale in the 1950s. This drilling process involves drilling a vertical well thousands of feet beneath the surface to the Marcellus Shale rock formation. Then, a steel pipe is inserted into the well and cement casing is pumped around it to protect fresh water aquifers under the surface. Next, the well is drilled horizontally into the rock

Graphic by Meghan Collins


formation, where a network of charges are set off, fracturing the shale and releasing natural gas. Two-to-four million gallons of water and fracturing fluids are then pumped into the well and the natural gas is forced out. A Marcellus Shale rock formation spans most of the Appalachian Basin, thousands of feet below the surface. This particular depository of Marcellus Shale is the largest in the country and Pennsylvania is essentially located right in its center. The natural gas resources of the Appalachia Basin span from New York to Ohio, through Pennsylvania and West Virginia and down to parts of Virginia. Further, the states with the most potential for Marcellus Shale production, New York, Pennsylvania and Ohio, are within the top 10 states with the highest overall energy consumption, according to the United States Energy Information Administration. This makes the production of natural gas locally a very cost-effective way to provide energy to some of the most densely populated states in the country. In 2009, it was calculated that the Marcellus gas industry in Pennsylvania directly added $1.98 billion to the local economy and its impact created an estimated 44,098 jobs across the state. Further, thousands of landowners who have leased their oil and gas or mineral estate rights have received financial benefits from signing bonuses, royalty payments, shut-in fees and other payments subject to the terms of a lease. On the other hand, Marcellus Shale development has been recently criticized for having potentially negative effects on the environment. During the Marcellus Shale drilling process, water can be contaminated from improper hydraulic fracturing methods or wastewater disposal. This can occur through defective well casing that causes natural gas and fracturing fluids to pollute fresh groundwater. This can also occur through leaking fracturing fluid pits or tanks and surface spills at the well site or during transportation. Because pure natural gas is mostly methane, improper drilling operations that result in water contamination usually involve high levels of methane. Air pollution is also associated with Marcellus Shale from the release of volatile organic compound emissions from processing plants and diesel exhaust trucks used for operations, as well as the process of controlled burning of natural gas in a well, called “flaring,” which is used for testing or to stabilize pressure in the well. “Flaring” releases methane, which is a greenhouse gas, into the air, where it traps heat in the atmosphere. The problem the Pennsylvania courts currently face is that they are determining for the first time whether they should apply a strict or broad standard of admissibility of the novel scientific evidence surrounding Marcellus Shale damage claims. The Pennsylvania courts currently only accept scientific evidence when it is founded on methodology that is generally accepted in the scientific community. This standard makes it very difficult for both landowners claiming damages due to hydraulic fracturing procedures and energy companies to show they are not reasonable. For example, in order for a claimant to file for damages due to water contamination, the claimant must prove that operations occurred near their property, their wells contain high levels of particular contaminants and supplemental evidence linking the specific operations

This makes the production of natural gas locally a very costeffective way to provide energy to some of the most densely populated states in the country. In 2009, it was calculated that the Marcellus gas industry in Pennsylvania directly added $1.98 billion to the local economy and its impact created an estimated 44,098 jobs across the state. to the exact location that impacted their water supplies. A landowner as a claimant must then hire petroleum engineers, hydrogeologists and geologists to examine the well, the area surrounding it, and the presence of natural chemicals in the area. However, without conclusive evidence that is generally accepted in the scientific community, these expert’s findings may not be admissible in court. Further, the existence of high levels of naturally occurring harmful chemicals in Pennsylvania, like methane, could prevent a claimant from being able to prove a particular well caused damage. High levels of methane gas in Pennsylvania’s water supplies have been traced to coal production and agricultural waste disposal practices long before hydraulic fracturing was popular in the state. Pennsylvania has a need for more conclusive reliable research that is funded by unbiased government entities. This is necessary before the courts accept expert evidence surrounding the environmental impacts of Marcellus Shale. Until conclusive research is developed, the courts should maintain their strict standard of accepting expert evidence, to prevent subjecting innocent parties to paying damages for injuries that they did not cause. On the other hand, the legislature should consider removing the statute of limitations surrounding injuries resulting from Marcellus Shale environmental impacts. Regardless of the support of or opposition to Marcellus Shale in this region.

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Op-Ed Winner: “Zero Tolerance” Policies: Schools’ Punishments Do Not Fit the Crimes By Lauren Gailey, Associate Editor

“The punishment should fit the crime.” This notion, proportionality, is one of the most important principles underlying the American conception of justice. Nevertheless, public schools around the nation, confronted with such frightening issues as gun violence, other violent crime, and drug abuse, have responded by instituting “zero tolerance” policies. These policies, which impose harsh punishments for the slightest infractions, raise the question whether proportionality has, to paraphrase Supreme Court Justice Abe Fortas, been shed at the schoolhouse gate. Consider just a few: In March 2014, a Columbus-area fifth grader was suspended for three days for forming his finger into the shape of a gun and pointing it “execution-style” at a classmate’s head. The same month, a Virginia sixth grader received a 10-day suspension with a recommendation for expulsion for possessing a weapon after she took a razorblade from a classmate who was cutting himself and threw it away. 22

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SUMMER 2014

In 2009, the Supreme Court ruled that school administrators violated a 13-year-old student’s constitutional rights when they strip-searched her after suspecting that she had hidden ibuprofen—the equivalent of two Advil tablets—in her underwear. Closer to home, a Fox Chapel High School student was suspended for 10 days in 2013 when he turned a pocketknife he had accidentally brought to a football game in his coat pocket over to school authorities. A simple internet search will inevitably turn up dozens more stories just like these, in which the harsh punishments school administrators mete out for seemingly minor infractions—many resulting from typical childhood pranks and horseplay—are so disproportionate and divorced from common sense that they rise to the level of absurdity. It was not always this way. The Gun-Free Schools Act of 1994 required schools to adopt a “zero tolerance” approach toward students bringing guns to school—an indisputably


severe offense. Ever since, schools have expanded the reach of these policies to include less egregious conduct. These crackdowns are often instituted as direct reactions to national tragedies such as the massacres at Columbine High School in 1999 and Sandy Hook Elementary School in 2012. The public outcry in response to these events helps to explain why such disproportionality seemed justifiable at the time in the eyes of school administrators. Unfortunately, the reactive nature of zero tolerance is its fatal flaw. In the wake of a tragedy, a measured response by school administrators becomes all but impossible. At the same time, however, zero tolerance policies have not proven to be effective deterrents. As Sandy Hook made painfully clear, mass shootings still occur with alarming frequency. Other types of violent crime and illicit drug use also remain all too common among schoolchildren. These realities make clear that zero tolerance policies punish only a few tiny snowflakes resting harmlessly atop the proverbial iceberg. What they do punish, however, is imaginative play (in the case of the “finger gun”), common sense (carrying ibuprofen to school), caring for others (throwing away the razor blades) and honesty (turning in the pocketknife). The severe punishments they impose take children away from their studies, risk doing permanent harm to their futures, and may even expose them to the whims of the juvenile justice system. They also encourage

students to attempt to evade punishment by sneaking, lying and obscuring the truth from school administrators. As the Fox Chapel incident made clear, a student facing zero tolerance has no incentive to admit an innocent misstep. What does this teach children about accepting responsibility for and learning from their mistakes? Zero tolerance policies are, by definition, disproportionate and unreasonable: they rule out common sense. Society would be better served by carefully identifying the root causes of the problems of gun violence, drug abuse and crime among our youth, and formulating laws and policies that actually have some hope of solving them. Imposing wildly disproportionate punishments upon students for innocent behavior that merely bears a resemblance to these problems solves nothing. The time has come to rethink zero tolerance and replace it with reasonable and fair punishments for harmless youthful indiscretions. America’s public schools do more than just educate their students. They also instill values, and common sense, reasonableness and prudence should be among them. Because their disciplinary measures have the potential to guide students’ vision of what is and is not acceptable behavior, schools must set the right example. They must practice proportionality, not just teach it in social studies classes. Punishment that fits the crime— one of our justice system’s fundamental building blocks—must not stop at the schoolhouse gate.

ALUMNI TIPS:

So Tell Me About Yourself By Dodi Walker Gross, L’82, Partner – Reed Smith LLP

“So Tell Me about Yourself” How should this question be answered in an interview? Here are some suggestions: • Be prepared. • Describe what you are looking for—why you are interviewing for the job. • Explain your personal qualities that make you a perfect fit for the job. • Talk about relevant experience that shows consistency with the stated reason for interviewing and highlights the skills that make you a perfect fit. • Resist the temptation to talk about hobbies and sports, unless it illustrates how you handle difficult situations or other aspects of the job. • Highlight relevant aspects of your resume. • Don’t badmouth the prior employer. • If this is all you get to say in the interview, make sure you leave a positive impression with clear information. 23


Coming off of last year’s successful push to increase Juris Magazine’s online presence, we wanted to do something that would take the Juris Blog to the next level. In September, Web Editor Matthew Andersen designed and launched the new Juris Blog at www.JurisMagazine.com in an effort to make accessing our content easier, and to make the Juris Blog user-friendly. On the new Juris Blog, you can find, among other things, our traditional student-submitted blog posts covering contemporaneous legal issues within Pennsylvania and throughout the United States. In an effort to bring unique content to the Juris Blog, we have added a multimedia section where you will find interviews with Duquesne Law professors

The 50th Anniversary of New York Times v. Sullivan

and notable speakers who have come to Duquesne Law throughout the year. This year, the Juris Blog has also started accepting informational articles from Duquesne Law alumni to assist our current students with the job search process, and to give advice for navigating the rigors of the legal profession. If you would like to contribute to the Juris Blog, please feel free to contact Web Editor Matthew Andersen at andersenm@duq.edu. We hope you will take the time to check out the new Juris Blog at www.JurisMagazine.com, and read the quality content that Duquesne Law students have been contributing all semester! The following excerpts are from our highest viewed blog posts this semester:

Ban the Box: Formerly Convicted Citizens Get a Second Chance

By Jamie Inferrera, Staff Writer March 20, 2014 It is a rite of passage in a student’s first year of law school: the study and discussion of New York Times v. Sullivan, 376 U.S. 254 (1964). Now 50 years later, we reflect upon how this landmark decision has forever transformed the landscape of journalism. 

“Ban the Box” Employment Law Gains Ground in 2014 By Brittany Kreibel, Staff Writer Feb. 27, 2014 According to a recent National Employment Law Project (NELP) report, one in four adults, nearly 65 million Americans, have a criminal record that could be uncovered with a basic background check. Ban the Box, has been a growing trend in recent news as a number of states and

localities are adopting some version of this law. Ban the Box basically means that employers will be barred from asking potential employees whether the applicant has ever been arrested, charged or convicted of any crime prior to a formal job interview.


Care for a Smoke? The Legalization of Marijuana and its Many Arguments & Counter-Arguments By Amy Coleman, Staff Writer Jan. 22, 2014

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Not long ago, the argument for the legalization of marijuana was voiced only by a small segment of professionals. A young lawyer could not openly discuss such matters without fear of the potential characterization a senior partner might find in his or her pro-legalization argument. But now even the leader of the free world believes in it. The Obama Presidency has always been on the cutting edge of social reform, from the way we view Guantanamo Bay to gay marriage to health care. Now, President Barack Obama is taking on marijuana. It all began with Colorado. On Jan. 1, 2014, Colorado law went into effect to allow the sale and purchase of marijuana to anyone over 21 years of age. Residents may purchase up to 1 ounce and non-residents up to ¼ ounce. Further, those who are 21 may give another adult over 21 up to an ounce as long as it is not for re-sale.

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Continued Reading...

ALUMNI TIPS:

Networking By Kathleen Charlton, Evening ’08, Partner at Charlton & Charlton Attorneys at Law

Networking is an integral part of building your career. Regardless of whether you are practicing at a small firm or a large firm, you will be expected to generate clients. I found that the best way to network was simply by joining local organizations that I was interested in. The first place I started with was by joining the local bar association AND attending meetings and events. This is an easy way to meet people and to generate referrals from other attorneys. Also, joining a local charity helps you meet other professionals that may also become a source of referrals and help to get your name out in the community. I have also found that keeping in touch with your classmates is a great way to network, as your classmates may practice in other areas of the law.

Taking these simple steps at the beginning of my career has helped me to expand my network of referrals and to bring in new clients. Stay tuned to the Juris Blog (www.jurismagazine.com) throughout the semester for more of our “Alumni Tips” series. These posts can also be found at the Duquesne Law Career Services’ Blog—“The Common Plea.” 25


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Juris Magazine: Summer 2014