Saint Louis University School of Law
Fall 2007
Health Law Conference Saint Louis Zoo Partnership Professor Levie Turns 100 Reunion 2007
dean’s message
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photo by Jay Fram
World events of the day are powerful reminders of the importance of the rule of law to a civil and prosperous society. Violence and inhumanity prevail in many regions of the world that are home to failed and failing nation states. The absence or decay of a trustworthy legal system is a signal characteristic of such failures. This has been true throughout the history of mankind. It is no surprise that when civil society is under attack, lawyers are also under attack. We see that today, just as Shakespeare did more than four centuries ago in his play Henry VI, part II. The character Jack the Butcher’s famous line, “The first thing we do, let’s kill all the lawyers,” expressed his gang’s traitorous interest in achieving a villain’s paradise; the lawyers were in the way. For more than a century, American law schools have educated and trained the lawyers and judges whose devotion to the rule of law has sustained and nurtured the civil liberties and prosperity which we enjoy today. Suffice it to say, the American law school has an essential and quite serious responsibility. At Saint Louis University we have exercised that responsibility in good fashion for many decades, and we can claim significant “firsts” in legal education. Law was first taught in our predecessor institution in 1843—the first instruction in the law to take place west of the Mississippi River. One hundred years ago women first enrolled in the Institute of Law at Saint Louis University, setting an example for American universities and the legal profession; today, 50 percent of our graduates are women. Currently, more than 20 percent of those admitted to the bar in Missouri are graduates of Saint Louis University. We also provide a healthy percentage of new lawyers admitted to practice in Illinois each year. Washington D.C. is home to the third largest number of our graduates, after St. Louis and Chicago. Saint Louis law graduates are indeed making a difference both at home and throughout the nation.
S AINT LOUIS
The current strength of the School of Law is a function of the personal investment of many generations of faculty, staff and alumni. It is also a function of the strong support of our president, Father Lawrence Biondi. We are at a crossroads today. We must seize the moment, continue our progress, and build upon the investments of the past. That is the only path to take if we are to be true to the historic mission of Saint Louis University and to the legacy of those who have helped build the law school into what it is today. In the last issue of the Saint Louis Brief you learned of our plans to enhance and enlarge the physical space that houses the School of Law. This will be the natural and essential complement to the University’s investment in the law school in recent years. With an outstanding faculty, a talented student body, and a first-rate academic program, the campaign to create the New School of Law at Saint Louis University will secure the law school’s historic role of providing fine lawyers —“men and women for others”—to support our democratic society. But this campaign is about more than the new building. It is about envisioning the great, positive impact our future graduates will have on our communities, and acting now to turn that vision into reality. With this campaign, we aren’t planning just for tomorrow—we are planning for the next century of the School of Law. Thank you for your support. You truly make the difference. We will be steadfast in our work to assure that the value of your degree improves with each passing year. May the year 2008 be one of health and happiness for you. Sincerely yours,
Jeffrey E. Lewis Dean and Professor of Law
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inside Competing for Patients
On the Cover: Queen’s Daughters Hall Photo by Jay Fram Dean and Professor of Law Jeffrey E. Lewis Assistant Dean for Communications Kathleen Carroll Parvis Editor Catherine Dmuchovsky
Speakers at a recent conference hosted by the Center for Health Law Studies examined the antitrust issues that arise when nonprofit hospitals and physician-owned facilities compete for patients.
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more features 15 Emeritus Professor Levie Turns 100 20 Alumni Memories
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Thanks to an innovative partnership with the Saint Louis Zoo, the Legal Clinics now offer their services to our four-legged friends.
Graphic Designer E. Brook Haley Media Relations Specialist Melody Walker Contributors Susan McGraugh, David Sloss, Stephen Thaman Photography Michael Abbene, Steve Dolan, Chuck Dresner, Jay Fram, Barbara Martin, Ray Meibaum Special Thanks Karen Budde, Christy Childs, Maura Connors, Cheryl Cooper, Danielle Jacoby, Colleen Kelly
in every issue 2 Law Briefs 16 Faculty View
Modern Times
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Students and professors in today’s law classes must keep up with changing technology. Find out how the School of Law meets the challenges of a digital world.
18 Faculty Profile 22 Class Notes
Reunion 2007
Copyright © 2008 by Saint Louis University School of Law All rights reserved. Saint Louis Brief is published two times a year by Saint Louis University School of Law. The Office of Communications is located in Queen’s Daughters Hall, Rm. 320 3700 Lindell Blvd. St. Louis, MO 63108 E-mail address is brief@law.slu.edu
SLU at the Zoo
Classmates tested their knowledge of U.S. presidents and famous movie lines at Trivia Night.
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Artist’s rendering of the proposed New School of Law
ii Saint Louis Brief Fall 2007
Fall 2007 Saint Louis Brief
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Law briefs
please go to http://law.slu.edu/handbook/ chapters/ch06/index.html.
school news
School Welcomes New Faculty will be published in the Spring 2008 Saint Louis University School of Law Journal. To watch video of the lecture, go to http://law.slu.edu/multimedia/index.html.
Reunion/Trivia Night
photo by Steve Dolan
Reunion 2007’s Trivia Night attracted 450 alumni and current law students in a battle of the brains. This popular event has become a highlight of reunion weekend along with the PILG 5K run and the Reunion Dinner. Many family members of current students also attended lectures aimed at giving them a taste of law school during the second annual “Family Day.”
Richard J. Childress Lecture “Cooper v. Aaron: Little Rock and the Legacy of Brown” was the topic of the 2007 Childress Lecture given by David A. Strauss, the Harry N. Wyatt Professor of Law at the University of Chicago. Professor Strauss criticized the U.S. Supreme Court for failing to uphold the 1954 Brown vs. Board of Education decision when it struck down two voluntary school desegregation plans in the last term. Nine legal scholars from prominent law schools around the country participated in panel discussions following the lecture. Papers presented
Saint Louis Brief Fall 2007
Jurist-in-Residence Judge Myron H. Bright, Senior U.S. Circuit Court Judge for the Eighth Circuit, returned to campus in November as a Juristin-Residence, a program which he initiated during his tenure as Distinguished Professor of Law at SLU from 1985 to 1995. With a twinkle in his eye, quick wit and sharp legal mind, the energetic octogenarian chatted with students at a breakfast; lectured to a Criminal Law class; reminisced with old friends at a faculty luncheon (Professor Susan FitzGibbon clerked for Judge Bright); and concluded the day in the courtroom observing and commenting on the Moot Court team’s preparations for competition. It was an inspiring and intellectually stimulating day for all!
Got Points? Did you know that attendance at many lectures, workshops and symposia held at the law school earns you Continuing Legal Education (CLE) points? Here’s what you could have earned this fall: • Childress Lecture: 3.0 credits • Health Law Conference: 3.6 credits • Workplace Privacy Conference: 3.6 credits
Health Law Journal Blog This fall, the Saint Louis University Journal of Health Law & Policy launched an online forum where those interested in discussing current health law developments can collaborate, discuss and even advocate solutions to a variety of health care issues. This forum, or “blog,” is easily accessible at http://lawblogs.slu.edu/healthlaw. Recent posts include, “Getting on the Same Page: The Disconnect between Medicare Incentives for Physicians and Hospitals,” “Import Drugs: Are United States Food and Drug Laws Keeping Us Safe?,” “FTC Merger Challenges Aim to Protect Present and Potential Competition in Pharmaceuticals” and many more.
To participate, please e-mail your name, e-mail address and academic or professional affiliation (i.e., university, law firm, corporation, etc.) to sluhealthlawblogs@gmail.com in order to receive a user name and password. We will respond to your request promptly, and once you have received a user name and password, you can begin blogging.
Moot Court Advances to Finals At press time, our Moot Court team was headed to the National Moot Court finals in New York City! They were one of two teams to advance to the finals after a victory in the regional competition in Topeka, Kan., in November. The team also was awarded “Best Petitioner’s Brief” and
photo courtesy of Paul Woody, ’08
Molly Batsch, ’08, received the “Best Oral Advocate” award. Congratulations to Molly and teammates Kristen Ratcliff, ’08, and Paul Woody, ’08, on an outstanding performance.
Honor Code After a year of debate, discussion and drafting, the Student Bar Association presented the school’s first Honor Code to the student body and faculty for approval last spring. The Code was adopted and the first Honor Council was elected this fall. Under the guidance of Professor David Sloss, the Honor Code was crafted by a student committee and outlines conduct subject to the Code and procedures for investigation and adjudication of alleged violations. The philosophy of the Code is stated in the opening of the document: “Acceptance to Saint Louis University School of Law represents the first step toward participation in the legal profession. Membership in the student body, and ultimately in the legal profession, entails a unique set of responsibilities to fellow students, to the law school, to the legal profession, and to the public at large. The legal profession demands the highest degree of trustworthiness, honesty and integrity. As future members of that profession, students of the Saint Louis University School of Law are bound to observe the principles that reflect the same high standards that govern the practice of law.” Violations of the code include plagiarism, cheating on exams, mutilation of library materials and improper use of electronic media in connection with a class assignment, research or examination, among others. Sanctions range from letters of reprimand to expulsion. To review the entire text of the new Honor Code,
Matthew T. Bodie Princeton University, A.B.; Harvard Law School, J.D.; New York University School of Law, LL.M. in Labor and Employment Law Matthew T. Bodie joined the faculty after a year-long visit. He teaches and writes on corporate, contract, employment and labor law subjects. He teaches Contracts, Corporate Governance, Employment Relations and Labor Law. After working for nonprofits in the fields of community investment and land reform, he attended Harvard Law School, where he was an editor and social chair of the Harvard Law Review, and earned best team and best brief awards in the Ames Moot Court competition. After graduating from Harvard in 1996, he served as a law clerk to Judge M. Blane Michael of the U.S. Court of Appeals for the Fourth Circuit. From 1997 to 2000, he served as a field attorney in the New York office of the National Labor Relations Board, investigating and litigating unfair labor practice charges and conducting representation hearings and elections. He then taught at New York University School of Law as an acting assistant professor of Lawyering and earned an LL.M. in Labor and Employment Law. Professor Bodie served as an associate professor at Hofstra University School of Law from 2002 to 2007, where he taught Business Organizations, Contracts, Corporate Governance and Employment Law. Professor Bodie’s research focuses on the role of information and ownership in the workplace. He has written articles on employee stock options, employment arbitration agreements and the AOLTime Warner merger. His recent article, “Information and the Market for Union Representation,” was selected for presentation at the Stanford/Yale Junior Faculty Forum
and the annual meeting of the American Law & Economics Association. It is forthcoming in the Virginia Law Review. Sam Jordan Rhodes College, A.B.; University of Chicago, J.D.; University of Chicago Harris School of Public Policy Studies, M.P.P. The School of Law also welcomes Sam Jordan to the faculty. Professor Jordan teaches and writes in the areas Civil Procedure, Remedies and Judicial Practice. While at the University of Chicago, Professor Jordan was a member of the University of Chicago Law Review, served as a Graduate Research Assistant at the Cultural Policy Center, and taught a course on the First Amendment in the University’s Law, Letters and Society Program. After law school, Professor Jordan served as a law clerk to the Honorable Milton I. Shadur, Senior United States District Judge for the Northern District of Illinois. He then spent two years teaching at Harvard Law School as a Climenko Fellow and Lecturer on Law. Professor Jordan’s scholarship focuses on the procedural mechanics of judicial decisionmaking, and on how those mechanics affect substantive outcomes. His article, “Early Panel Announcement, Settlement, and Adjudication,” was published in the BYU Law Review. It explores how a policy of early announcement of appellate panel composition might affect case selection. Professor Jordan is currently at work on two articles, one dealing with quorum decisions in the United States Courts of Appeals, and the other with the implications of size on the decisional dynamics of the United States Supreme Court.
Do you BLAWG? Send us links to your favorite law-related blawgs or blogs. Where do you go for the latest legal news? Our new Media Relations Specialist, Melody Walker, wants to know. Write her at mwalke25@slu.edu.
Fall 2007 Saint Louis Brief
100 Women Women YEARS OF
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student organizations
Students Sing for Charity
Students took to the stage and revealed their musical talent at the second annual CARE-aoke held in September at Humphrey’s. The Student Bar Association sponsored the fun and fund-raising event, which benefited “Operation Liftoff,” a charity that provides air transportation for a treatment trip for children with a lifethreatening illness. Association, the Midwest Black Law Students Association announced it is launching a law journal in 2008. For more information, go to the web site: http://midwestblsalawjournal.org/.
Students Provide Legal Aid and a Thanksgiving Meal to Homeless Veterans
First Monday In honor of the first Monday in October, the School’s Public Interest Law Group and the Federalist Society, two student organizations, scheduled a timely debate on Missouri’s Nonpartisan Court plan. Former Governor Bob Holden and Missouri Bar Vice-President Thomas Burke,’81, argued in favor of the current system for selection of judges. Local attorneys William Placke and Thomas Walsh spoke against the plan. View the debate at: http://mopns. com/2007/10/03/.
BLSA Retreat The Black Law Students Association of Saint Louis University School of Law hosted the Midwest National Black Law Students Association Academic Retreat in October. During the three-day retreat, 140 students from 45 law schools in 12 Midwestern states participated in workshops, seminars and panel discussions on how to be successful in law school. In honor of the 40th anniversary of the National Black Law Students
Saint Louis Brief Fall 2007
Fifty students have joined the new Veterans’ Law Student Organization (VLSO), initiated by Tom Banning, ’08, former Marine and current infantry officer
military hospitals abroad and for homeless vets here in St. Louis. At the annual citysponsored Thanksgiving dinner for homeless vets, students helped serve meals and distribute the clothing. SLU law student Haley Greer, who was a volunteer at the event, said “I found this project particularly interesting because of the involvement of so many organizations coming together to serve the people who have served our country. No matter the situation a person is in, they should always be admired and saluted for their commitment to our country. This is a small way for me to give back to them.” Approximately 150 veterans enjoyed the home-cooked goodness of a traditional Thanksgiving feast and left the dinner with duffel bags full of new clothes.
Encore Performance on the Missouri Plan
center events
The First 100 Years
AT S A I N T L O U I S U N I V E R S I T Y
When five women enrolled in the law school in 1908, they made history.
Workplace Privacy Video cameras, GPS tracking devices and other high-tech surveillance tools are changing and challenging the definition of privacy in the workplace. A timely and informative conference on workplace privacy issues was held at the law school in November and covered the following topics: Pre- and Post-Hiring Inquiries, Electronic Monitoring On and Off the Job, and Identity Theft and Liability. Panels
Missouri Supreme Court Judge Michael A. Wolff was invited by the American Constitution Society in September, and again in December by the J. Reuben Clark Law Society, to lecture on Missouri’s Nonpartisan Court Plan.
care politics, racial and ethnic relations and scientific advances all interact and inform responses to disease. Dr. Wailoo’s lecture was co-sponsored by the Center for Health Law Studies and the Center for Health Care Ethics.
Health Law Distinguished Speakers
in the Illinois Army National Guard, with help from Amy Morgan, ’08. In September, VLSO joined forces with PILG, the Public Interest Law Group, for “Stand Down for Homeless Veterans,” a program designed to offer a wide range of services including medical screenings, employment opportunities and legal services. This year’s event drew 279 homeless veterans to War Memorial Park where SLU law students and 20 attorneys from Simmons Cooper law firm provided legal services. In November, VLSO and PILG worked together again to collect clothing and personal supplies for injured soldiers in
Spelling Love with an X is the first literary memoir about living with Fragile X, and it has received excellent reviews. The book is available at all bookstores and at amazon. com. For those who are interested, her web site is www.spellinglovewithanx.com.
composed of attorneys and Professor Josef Rohlik presented views on each topic from the perspective of employers, employees, unions and arbitrators. More than 60 attorneys attended the conference, which was co-sponsored by the Wefel Center for Employment Law and the Labor and Employment Research AssociationGateway Chapter.
The Cultural Politics of Pain How do different cultures, ethnicities and racial groups deal with pain? Keith A. Wailoo, Ph.D., professor of history at Rutgers University, discussed the history of pain and treatments in a thought-provoking lecture in November. Wailoo is the author of several books examining how patterns of disease and treatment change over time in America. His talk outlined how health
They were not only the first women to attend the law school, but the first to be accepted by Saint Louis University. Today, women make up more than half of the law school student body. To honor those first five legal scholars and the generations of women that have followed in their footsteps over the past century, the law school will sponsor a series of events in 2008 to celebrate the First 100 Years of Women at Saint Louis University School of Law.
The Center for Health Law Studies sponsored two lectures in its Distinguished Speaker Series this fall.
Please mark your calendars and plan to be part of the centennial festivities:
• Gregory M. Luce, Partner and CoChair, Health Law Practice Group, Jones Day, Washington, D.C.
March 28, 2008 Cobb County Superior Court Judge Dorothy A. Robinson, ’67, will deliver the annual Adler-Rosecan lecture at noon. Judge Robinson has been a trial judge for more than three decades. She was the first woman to serve as judge of a court of record in the history of the State of Georgia when appointed in 1972 to the State Court of Cobb County. In 1980, she was the first woman to be elected as a Superior Court Judge in the Cobb Judicial Circuit. In 1985, Judge Robinson was the first woman in the 140-year history of the Supreme Court of Georgia to be invited to sit as a Justice Pro Hac Vice in that Court. That afternoon, Judge Robinson will be joined by two more distinguished alumnae to serve as judges for the annual moot court finals. On the bench will be: Chief Judge of Madison County (Illinois), Ann Callis, ’90, and Missouri Court of Appeals Eastern District Judge Kathianne Crane, ’71.
Professor’s Daughter Publishes Memoir Professor John Dunsford’s daughter Clare, a dean at Boston College, has just published a book on her life with a Fragile X son, J.P., who is now 21. Fragile X syndrome is the most common form of inherited mental retardation. Genetics determine its dispersal, and not every member of a family will be touched by it. The syndrome occurs in one in 4,000 males and one in 8,000 females, affects the lives of more than one million people in the United States, and often is not identified by parents until months and years have passed.
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• Rep. Connie L. Johnson, ’96, Minority Whip, Missouri State Legislature; Of Counsel, Armstrong Teasdale LLP.
February 26, 2008 The kick-off event sponsored by the Women Law Students Association (WLSA) will be an evening reception honoring Missouri Supreme Court judges, the Honorable Laura Denvir Stith and the Honorable Patricia Breckenridge.
May 15, 2008 The speaker for the hooding ceremony will be Missouri Supreme Court Chief Justice Laura Denvir Stith. The ceremony will be held in the new Chaifetz Arena.
The spring issue of the Brief will contain more information on the centennial celebrations and stories on the women who have made history here at the law school and beyond.
Fall 2007 Saint Louis Brief
Competing for Patients
Daniel Landon
Jay D. Christiansen
photos by Steve Dolan
physician-owned facilities and nonprofit hospitals vie for patients in a complex health law landscape By Catherine Dmuchovsky
O
f all the indicators of a troubled health care industry in this country—and there are lots, from the rising cost of health insurance and prescription medication to trying to reach an actual person when you call your doctor—the controversy surrounding physician-owned hospitals brews somewhat under the general public’s radar, even though the outcomes of litigation on this matter have the power to affect where the public goes to receive medical treatment. On October 25, 2007, the Center for Health Law Studies hosted a conference on “Physician Ownership of Hospitals and Other Health Facilities: Antitrust and Policy Issues.” The event was co-sponsored by the American Bar Association Section of Antitrust Law and the Saint Louis Area Health Lawyers Association. The purpose of the conference was to provide a forum for conference panelists, faculty, students and alumni to discuss the debate and to offer students a glimpse into how law is applied in the real world by the professionals who are involved in all facets of this issue. What is the nature of this controversy? Physician-owned hospitals (also called specialty hospitals), where doctors invest capital to build their own health care facility, compete directly with nonprofit community hospitals. Specialty hospitals are more prevalent in states with either weak Certificate of Need (CON) laws or none at all. A CON is just what the name implies: In
Saint Louis Brief Fall 2007
order to enter a health care market and establish a new facility, an applicant must prove to the state that there is a need for its services. A CON also is required if a facility wants to acquire a piece of equipment that costs more than $1 million. The nonprofit hospitals claim that physicians who own specialty hospitals steer their patients to the their own facility and that this competition is unfair, especially because these physicians often still retain staff privileges at the competing nonprofit hospital. Specialty hospitals, on the other hand, have alleged that nonprofit hospitals engage in activity that violates such antitrust laws as the Sherman Act and the Clayton Act. Both specialty hospitals and nonprofit hospitals ardently believe in the rightness of their positions and have proved themselves willing to take their cases to court. Glenn Davis, chair of the litigation group at Armstrong Teasdale LLP in St. Louis and one of the antitrust panelists at the conference, says that this area of health law is “fertile ground for antitrust and related forms of litigation.” PHYSICIAN, HEAL—AND PAY— THYSELF As it turns out, medical school was the easy part. Working as a physician in today’s health care environment is much more complicated and challenging than Hippocrates ever could have imagined, and with big, modern medicine comes big, modern bureaucracy.
According to Wes Cleveland, legal counsel to the American Medical Association’s Advocacy Group and one of the panelists at the recent conference, physicians are experiencing an “unprecedented level of frustration” with the current realities of practicing medicine, and “they feel disenfranchised by hospitals.” Their frustration stems from several sources: a lack of control over hospital governance and decision-making; an increase in the amount of time devoted to unpaid administrative duties; having to compete with the other hospital departments for their share of the budget, which is especially problematic when physicians ask for new equipment; and, perhaps most important, the administrative burdens leave less time for a physician’s primary function — seeing and treating patients. For those physicians who feel stymied by what they consider to be unresponsive hospital administrations, investing in a specialty hospital seems like an attractive alternative. It all boils down to control. Doctors say that practicing in a specialty hospital empowers them to make the important decisions the way they see fit, and not as a result of hospital administration mandates. Physicians retain the ability to hire and fire their own staff and specify what qualifications the staff should have, they can make decisions about facilities and purchase the most advanced equipment, and they can determine their own schedules. In addition, because the specialty hospitals concentrate on treating only one medical
condition, physicians maintain that their facilities run more efficiently without the interference from the bloated administration of a general hospital, thereby increasing time spent with patients and improving the quality of care patients receive. And like anyone else who invests in a business, physicians who own specialty hospitals want to maximize their profits. When doctors own the facility in which they practice medicine, they collect not only their doctors’ fees, but also the facility fees; in a nonprofit hospital, those facility fees would be paid to the hospital. Lawyers for specialty hospitals also cite studies that show the quality of care at such facilities is equal to or exceeds that of nonprofit hospitals, and that specialty hospitals create tax revenue for the community; moreover, the competitive presence of a specialty hospital spurs the other nonprofit hospitals in the area to innovate and improve their own services. As to the charge that physician ownership fosters a somewhat ghoulish and predatory doctorpatient relationship based on greed rather than care, doctors who own these facilities respond that the percentage of ownership is so small as to be negligible in regard to individual patients, and that such a charge against them is absurd. Improved care for patients, more efficient and happier doctors, no more pointless administrative functions — what’s wrong with this picture? If you ask any nonprofit hospital embroiled in this debate, there’s plenty wrong.
THE OTHER SIDE Daniel Landon, conference panelist and the senior vice president of governmental relations for the Missouri Hospital Association (MHA), manages that organization’s state and federal advocacy activities. In presenting the nonprofit hospital side of the issue, Landon stated that physicians who own specialty hospitals have a tendency to “cherry-pick” only the most lucrative revenue centers (typically cardiac or orthopedic care) and patients (i.e., those with good insurance and without complicating, chronic medical conditions), and refer these patients to their own facility rather than to a nonprofit hospital. Without these moneymaking departments, a nonprofit hospital has less money to subsidize its other, less profitable centers, such as emergency rooms and burn units. Another charge against specialty hospitals is that they do not treat uninsured and underinsured patients, who then wind up in the emergency rooms of nonprofit hospitals, yet another drain on their resources. Unlike the specialty hospitals, nonprofit hospitals that operate an emergency room have a legal obligation to treat any patient who comes through their doors. To nonprofit hospitals, these activities amount to unfair competition — the health care equivalent of taking the money and running. When explaining the economic side of the debate, conference panelist David Argue, Ph.D.,
Fall 2007 Saint Louis Brief
Mark J. Botti
Students provided their commentary on the new Health Law blog: lawblogs.slu.edu/ healthlaw The following is an excerpt from the blog: Specialty hospitals also have a well grounded argument in that they increase the bang for the patient’s buck, at least as far as quality goes. It is here Cleveland says “simplicity and repetition breed confidence.” And he’s probably right. Hypothetically, say a specialty hospital is comprised of half a dozen orthopedics. Logic would dictate that if you had a staff that did nothing but orthopedics, a facility geared towards nothing but orthopedics, and doctors themselves who did nothing but orthpedics, you’re probably going to have some happy orthopedic patients. Aaron Beyt, ’09
Saint Louis Brief Fall 2007
David Argue (left)
of Economists, Inc. stated that “physician ownership provides unambiguous economic incentive” to refer patients to their own facility. A more serious allegation aimed at specialty hospitals and one that has helped to galvanize other opponents of this health care trend—not least of whom are senators and officials at the Centers for Medicare and Medicaid Services (CMS)—is that they are unprepared for patient emergencies. At some of these specialty hospitals, there is no physician on staff 24 hours per day. In a few cases scattered around the country, patients died because the specialty hospital was unable to handle their emergencies and was forced to call 911 for help. POLICY, ANTITRUST AND THE PUBLIC TRUST Indeed, since 2003 Congress has placed— and extended, then lifted, then placed again —moratoriums on specialty hospitals, specifically enrolling them in Medicare and Medicaid, in response to criticisms about and investigations into their quality of care. CMS does not want to give money to hospitals that can’t provide even the most basic emergency care to patients. In addition, at least one of those aforementioned patient deaths occurred at a specialty hospital that opened during one of the federal moratoriums, prompting Senators Chuck Grassley of Iowa and Max Baucus of Montana to ask the Secretary of Health and Human Services to investigate whether the government had performed due diligence in evaluating and licensing specialty hospitals.
Glenn E. Davis
For conference panelist Barry Joyce, ’03, this conference was a homecoming of sorts. Joyce, who is an attorney with the Antitrust Division of the Department of Justice (DOJ), focusing on antitrust enforcement in health care and health insurance, was a research assistant to Professor Tim Greaney. Professor Greaney, coincidentally, was the supervisor in the same DOJ office where Joyce currently works. At the conference, Joyce addressed how the DOJ might view the antitrust issues in this corner of the health care arena. It should be noted that antitrust issues don’t automatically arise concerning competition between specialty and nonprofit hospitals. Physicians interested in starting their own facility can demonstrate through certificates of need that the local marketplace can accommodate another facility, and hospital associations can lobby for stronger certificate of need laws; moreover, normal competitive activity is perfectly legal, though there are complicating factors particular to the health care market, such as thirdparty payers (e.g., insurance companies and the state and federal government). And cherry-picking patients is not exactly an antitrust issue, according to Joyce. “Companies are under no obligation to help their competition,” he says. That said, specialty hospitals have claimed that their nonprofit counterparts have engaged in decidedly anticompetitive practices. Hospital associations can use their considerable bargaining power with managed care organizations to force them to exclude physician-owned facilities from
their contracts. During his presentation at the conference, Glenn Davis cited a Kansas case, Heartland Surgical Specialty Hospital, LLC vs. Midwest Division, Inc., in which the plaintiff claimed, among other things, that there was an “unwritten but understood agreement among MCO’s not to extend managed care contracts” to specialty hospitals. Another tactic that nonprofit hospitals have employed is economic credentialing, which is the practice of basing a physician’s performance review and continued hospital privileges on the percentage of referrals the physician makes to the hospital. The American Medical Association (AMA) states on its web site that some hospitals have “refused to grant staff privileges to physicians who own, have financial interests in or have leadership positions with health care facilities or who refer patients to competing facilities.” The AMA objects to economic credentialing in general, but especially in certain cases when it’s done in retaliation or to punish a staff member who has interest in a specialty hospital. Nonprofit hospitals, for their part, have argued that physicians have an unfair advantage when it comes to where they choose to refer their patients—phrases like “conflict of interest” are frequently used. Could a doctor really have patients’ best interests in mind when referring them to his or her own facility? It is up to the courts to decide what is unlawful, unfair competition, and so far the
Barry Joyce, ’03
This is an intensely political issue, with lots of lobbying at the federal level by physicians and community hospitals. courts’ decisions have favored both sides. With regard to federal policy, Greaney says that political favor currently lies with nonprofit hospitals. Earlier this year, CMS proposed new rules and regulations that would require all
photos by Steve Dolan
hospitals that participate in Medicare to inform patients when physicians have ownership in a facility and whether a facility has a physician on staff at all times to handle emergencies; though these new guidelines would apply to all hospitals, the underlying message is clear that they’re directed at physician-owned facilities. “This is an intensely political issue, with lots of lobbying at the federal level by physicians and community hospitals,” says Greaney. And unlike a lot of the political issues that have pundit tongues wagging all over television, this one is not necessarily tied to the upcoming election. The battle between specialty and nonprofit hospitals will outlast next November. Right now, there are few issues that combine the political and personal more than the debate about health care. It encompasses what is both deeply public and deeply private. There are possibilities for the reconciliation between the two sides of this debate: Physicians can start their own general hospitals; physicians can enter into joint ventures with nonprofit hospitals; and nonprofit hospitals can create specialized centers within their facilities to combine the best of the resources and skills of the hospital staff. While it would be naïve to think that those proposed solutions could easily solve this complex, ongoing debate, one hopes the legal community can guide physicians and hospitals toward workable solutions that benefit patients and not just the financial interest of one particular side.
Fall 2007 Saint Louis Brief
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Elephant: photo by Ray Meibaum, Saint Louis Zoo Zebras: photo by Chuck Dresner, Saint Louis Zoo
ZOO
& legal clinic partnership
by Susan W. McGraugh
Assistant Clinical Professor of Law
The mission of the Saint Louis University School of Law Clinics is to provide public legal service to our community through a variety of legal programs, and we pride ourselves on our unique community partnerships. But representing a reptile? Advocating for an anteater? Litigating for a lemur? That’s what happened this summer when the Clinics entered into a partnership with the Saint Louis Zoo to provide free legal assistance to the zoo in matters great and small. This is one of the transactional programs that benefits the students with both practical legal experience as well as networking opportunities for their future legal career.
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Law students meet with Saint Louis Zoo President Dr. Jeffrey P. Bonner (third from left) and attorney Winthrop B. Reed III (first on left) of Lewis, Rice & Fingersh, L.C. as part of a new partnership with the Clinics in which students assist Mr. Reed and other volunteer lawyers in handling legal matters for the Zoo. Clinic Professor Patricia Harrison (second from left) and Elizabeth O’Keefe, ’08, Matthew Carlyle, ’08, and Greg Stewart, ’08, participated in the project.
The Saint Louis Zoo is a tax-supported political subdistrict of the state of Missouri that is consistently ranked as one of the top zoos in the United States, and it is a significant cultural and educational presence in the St. Louis community. Its programs in conservation, animal management and research have drawn international accolades. It attracts more than 3,000,000 guests a year and generates $47,000,000 in revenue annually before capital gains and restricted revenues. This long-standing historical nonprofit has a complicated yet successful structure that students have the chance to study through this partnership. Winthrop B. “Win” Reed III, a partner at Lewis, Rice & Fingersh, L.C. and a School of Law alumnus from 1994, initiated the partnership with the Clinics. Reed is the president of the Zoo Friends Association (ZFA). The ZFA board deals with oversight of the Zoo Friends funds that support the Zoo’s operating expenses, including animal care. He saw the partnership as a unique opportunity to introduce law students to the inside operations of a major nonprofit organization while providing the Zoo with valuable legal assistance. Depending on what the ZFA board needs them to do, students can gain experience in the areas of employment law, taxation, real estate law, nonprofit law and animal regulation. Lewis, Rice & Fingersh, L.C. provides the law students with their own workspace at the law firm, including access to the firm’s library and staff services. Our students attend the ZFA board and the Zoo Commission meetings to learn the process of taking and developing corporate minutes for nonprofit agencies and to learn how the board operates. And even though it’s
photo by Michael Abbene, Saint Louis Zoo
photo by Chuck Dresner, Saint Louis Zoo
not their primary goal when they begin the program, students come to better appreciate the importance of the Zoo. The Zoo staff teaches the students about the educational and conservation programs that the Zoo offers not only locally but also globally. Greg Stewart, ’08, who worked at the Clinics, felt the experience was invaluable. “The opportunity to observe how a nonprofit board operates was fascinating. This partnership gives law students insight into the many ways in which nonprofit law has an impact on a community.” The students this past summer spent their time researching land and real estate issues as well as matters involving municipal and local government. The students presented their findings to the Saint Louis Zoo Friends Association Executive Committee in the beginning of the fall semester. Many also attended ZFA meetings and were able to connect with the numerous St. Louis leaders of the business and legal communities—CEOs, financial gurus and marketing and fund-raising experts—who serve on the Board. “We are incredibly thankful for the efforts of the Saint Louis University School of Law Legal Clinics. We enjoy and will continue to enjoy working together with the students,” says Reed. The Legal Clinics look forward to expanding this partnership in the future. Professor Patricia Harrison, who is now in charge of the program, says, “Our hope is that students will see the value in volunteering and becoming involved in nonprofit agencies and will understand how successful attorneys and members of the corporate world give back to the community.”
Fall 2007 Saint Louis Brief 11
MIGRATION
FROM CHALKBOARD TO LAPTOP:
By Catherine Dmuchovsky
THE DIGITAL
photos by Jay Fram
12 Saint Louis Brief Fall 2007
o paraphrase Oliver Wendell Holmes’ famous statement, the law should be stable but should never stand still. The same also could be said of legal education. Even though the history of the law goes back centuries and law schools are themselves steeped in tradition, law schools must make room for progress— both literal, physical room and pedagogical room. As IT director for the law school Jim LaPointe explains, the imperative for the School is to enable “the best of the traditional ideas in a world of diverse and evolving technology options.” If you’ve spent any time at all recently at the School of Law, or looked at the brochures, or visited the Web site, you probably have noticed how technology has changed the look of law school. Students now come equipped with a silver (sometimes black) folding typewriter-like appendage called a “laptop computer,” and in the classrooms professors look up into row upon row of their students’ strange insignia—“IBM,” “VAIO,” “Dell” or sometimes just an apple that glows white. All jokes aside, the 21st century classroom is an inevitable product and a reflection of the way we live now, and the story of how the law school meets the educational challenges created by multimedia technology and the increasing technological
savvy of the student body is an evolving one. It’s also a story of how technology gives faculty more options in how they choose to teach the law. Ebay, for example, might not immediately spring to mind when one thinks of a law class, but for Professor Camille Nelson, it’s just one of several web sites and multimedia tools she employs to teach her law classes. She says that technology supplements existing methods of teaching and testing. “I can get more information to students, which thereby enables me to cover issues more in-depth. The web sites and media provide a foundation that the class uses as a springboard to delve into more sophisticated issues.” The illustrative and educational possibilities of video clips, web sites like craigslist.com and the online version of media such as The New York Times offer
an electronic site where faculty post course material for students to access.) While PowerPoint alone is not exactly “bleeding edge” technology, consider the implication of students being able to get class materials whenever, wherever they want: Learning the law is no longer dependent solely on a classroom or a library or a even a book—all the elements of what is traditionally considered “school.” Not all faculty are fans of having technology in the classroom, in particular students taking notes on their laptops. There are some aspects of learning the law that have nothing to do with hardware and everything to do with establishing personal relationships with clients. Professor Barbara Gilchrist, who teaches Judicial Ethics & Court Procedure and Lawyering Practice, is one of a number of law professors
her class novel ways of examining whether “traditional contractual principles and doctrines hold up in a forum that was never even imaged by the original lawmakers.” Professor Mark McKenna says that he uses PowerPoint in every class, “primarily to display relevant statutory text, post hypotheticals, to display audiovisual materials relevant to the cases, and to structure discussion about particular cases.” He gives students “concrete examples of what the cases are about, particularly in the area of intellectual property, where the cases often are about products or creative content that we can evaluate in class.” Students can download the PowerPoint slides from his TWEN site after class if they want to review them. (Produced by Westlaw, TWEN is a course management tool in the form of
nationwide who believe that laptops have become a disruption, so she doesn’t allow them in her classes. And while she understands that law schools must remain technologically competitive and facilitate students’ desired mode of learning, she feels that technology might put undue pressure on professors to be more “entertaining” in class in order to compete with the myriad dazzling temptations students can access on the Internet. “They’ve become a distraction, not a useful tool. In practice, you’re not going to be checking e-mail during opposing counsel’s argument.” It’s one thing if someone isn’t paying attention during class, but it’s quite another if that student distracts those behind him or her by the progress of an online solitaire game or videos on
YouTube. Even LaPointe would like to “restore the visual connection between student and professor” because laptops literally divide the space between them. “Students are becoming stenographers. They’re not hearing and thinking; they’re just typing the words,” Gilchrist says. What do her students think of Gilchrist’s policy? When she asked them, they let her know—politely, diplomatically, but in no uncertain terms—that she is behind the times. Some of the arguments for the use of laptops in law classrooms cut both ways, though. Associate Dean for Academic Programs Dana Underwood says the fact that students are habituated to learning and taking notes on their laptops is precisely why it’s sometimes better that they put them away for law school. “Law school classes are process-oriented. It’s a different kind of approach to learning than what they’ve experienced before.” Professor Frederic Bloom, whom the students voted Teacher of the Year in 2007, says that while he is not “allergic” to technology, he nonetheless opts not to use it to teach his Civil Procedure and Federal Courts classes. His approach to teaching is influenced in part by methods that engaged him and were the most enjoyable and effective when he was a law student. For example, he does not present PowerPoint slides in his classes. “I don’t structure my classes that way,” he says. To him, PowerPoint “feels less organic, more scripted and anodyne.” “Current technology doesn’t provide— yet—what I need to really engage the students and make them push everything from their desks” and focus, Bloom says. He does allow that if he taught another class—Evidence, for instance—video clips might be appropriate. And he does e-mail supplementary materials to his students to clarify or maintain a class discussion. No matter the extent to which the faculty utilize technological aids in their classes, the law school must remain administratively and philosophically agile so that it can respond to each professor’s preference as well as shifts in pedagogy, even if those shifts are rooted in cultural trends that originated outside of the ivory tower. Two years ago the law school began
Fall 2007 Saint Louis Brief 13
Learning the law is no longer dependent solely on a classroom or a library or a even a book—all the elements of what is traditionally considered “school.” a pilot program that allowed students to take exams on their laptops rather than use a standard bluebook. Last year, the school implemented the laptop option for all first year students, and close to 90 percent of the current first year class has chosen to take exams this way, with the percentage slightly less for second and third year students. Associate Dean Underwood says that once students start taking exams on their laptops, they want to keep that option. For one thing, more undergraduate institutions allow students to take laptop exams, so some of the first years already are accustomed to this method of exam-taking; moreover, the exam software that the law school uses is the same one that’s used to administer the Bar exam. As one of the newer faculty members, Professor Molly Walker Wilson, who teaches Torts, Family Law and a seminar in Law and Psychology, has both given and taken laptop exams. She believes that having students complete their exams on their laptops rather than in a bluebook not only produces a better exam, but also prepares students for how they will work once they’re practicing lawyers. “Few attorneys, if any, draft complaints and other documents by handwriting them. Why should the exam-taking process be any different? Most lawyers compose documents directly on their laptops. Students should be able to create answers
14 Saint Louis Brief Fall 2007
to exam questions that, as completely as possible, demonstrate their knowledge and synthesis of the material. Laptop exams optimize students’ ability to do this because they allow for editing and organizing of concepts.” Professor McKenna gives take-home exams that the majority of the students in his classes typically compose on their laptops, and he gives them eight hours to complete the exam. He echoes Wilson’s reasoning that students are able to achieve a “depth of response” on their exams because their answers are better organized and edited. He feels that timed bluebook exams reward those students who merely “regurgitate” information quickly, whereas he is more interested in seeing how the students develop their arguments and analyze the exam question. What’s more, the students learn time management skills that they’ll need once they go into practice. “Forcing them [students] to manage their time in terms of how they study and space out their exams is actually teaching them a valuable skill, and giving students some time to work through a problem more thoroughly is a much better approximation of what they’ll do as lawyers.” But as anyone who has seen a science fiction movie can attest, people and technology don’t always “interface” successfully, as it were. Behind the scenes, the administration at the School of
Law takes great pains to anticipate and prevent any problems at exam time and has established policies and procedures to safeguard against them. (Final exams are stressful enough for students without the heart-stopping panic that they would feel if their exam crashed and burned.) The law school defines the standards regarding the hardware and operating systems that students have on their laptops to make sure they’re compatible with the exam software. Sometimes, though, it’s the students who create the technological problems when downloading the exam software on their laptops; if they upgrade another software program on their laptops before exam time, doing so can render the exam software inoperable or lead to other difficulties. Despite the occasional glitch, the law school has successfully integrated its laptop exam protocols. Ultimately, each professor has the discretion to choose how he or she wants to conduct a class. Some professors embrace the opportunity to access Web pages and video during class, while others want students to unplug themselves from their various gadgets and devote their undivided attention to developing those intangible but invaluable communication skills, so vital to success as a lawyer. It is this very difference in attitudes towards the modern classroom that allows the students to have a full range of educational experiences.
Happy 100 Birthday th
E
Professor Levie
meritus Professor Howard Levie, a recognized authority in international law and former Charles H. Stockton Professor of International Law chair at the United States Naval War College, celebrated his 100th birthday on December 19, 2007. Professor Levie served on the faculty at the School of Law from 1964 to 1976, and in 1977 he became an Emeritus Professor. The Naval War College named the Howard S. Levie Military Chair of Operational Law to honor his contributions in the area of armed conflict law, and he was a member of the Judge Advocate General Corps of the U.S. Army for 21 years. Professor Levie has written many books and articles, including Prisoners of War in International Armed Conflict, Terrorism in War: The Law of War Crimes and Levie on the Law of War. In honor of this remarkable occasion, Levie’s many friends and colleagues wrote letters to commemorate his life and career and to relive fond memories. The following excerpts from the letters written by Levie’s fellow School of Law professors offer a glimpse of the tremendous impact—both personally and professionally—this man had on the law school community. “My memories of you go back to my law school days at SLU, when you introduced me to the wider legal world through your International Law course. I have had occasion recently to reflect on the points you made in that course about the importance of diplomacy and the lessons you drew from your experience in negotiating the Korean armistice before joining the SLU faculty. When I joined the faculty and we
pleasure to have a party amidst Blanche’s paintings and the furniture and keepsakes you had accumulated in your worldwide journeys. I can only wish that your remaining years will be as happy and productive as the first 100 years have been… .” — Vincent C. Immel, Emeritus Professor of Law “When I was writing a piece for the University of San Francisco Law Review about that little-known but fascinating World War II court-martial movie, “Man in the Middle,” you were of huge help to me with your comments (which I quoted extensively) about the real world of military law during that period. My essay, complete with your contribution, has recently appeared in the anthology Screening Justice (Hein & Co., 2006). Again, thanks a million for your generous assistance.” — Francis M. Nevins, Emeritus Professor of Law became colleagues, you were very welcoming and helpful. During my stint as Associate Dean, you helped me negotiate teaching times with other faculty with your off-hand comment that your first teaching assignment was at 8 a.m. six days a week. Virtually any schedule I suggested was perceived to be better than that one.” — Peter W. Salsich Jr., McDonnell Professor of Justice “I have always been proud of the fact that I had a hand in getting you to come to St. Louis. You added a dimension to the school that we had not had before and you did it superbly well and with grace. I still meet alumni who ask about you and they remind me that you were one of their best professors. I apologize again for having assigned the course in agency and partnership to you during your first year here. I also thank you for having brought Blanche with you. The two of you were the best hosts I ever encountered. It was a
“The celebration of your 100th birthday brings back to me many happy memories when we served together on the faculty of Saint Louis University Law School. You have reached a selective milestone which few in life achieve. All of us who were on the faculty in those days—Vince Immel, Dick Childress, Jack Dunsford et al.—wish you all the best. Just think of all your wonderful accomplishments—The Code of International Conflict, Documents on Prisoners of War, Maltreatment of Prisoners, Terrorism and others listed in Michael N. Schmitt and Leslie Green’s book Levie on the Law of War; principal draftsman on the Korean Armistice Agreement, the Stockton Chair at the U.S. Naval War College, the authority on Prisoners of War as recognized by the Supreme Court of the United States; listed in the Country’s Military Legends along with General John “Black Jack” Pershing.” — Joseph J. Simeone, Emeritus Professor of Law Fall 2007 Saint Louis Brief 15
faculty view
Foreign Relations Law through the Lens of History
by David Sloss Professor of Law David Sloss earned his J.D. from Stanford in 1996, clerked for one year on the 9th Circuit and then became an associate with a Silicon Valley law firm where he litigated antitrust, securities and intellectual property cases. He assisted software clients in their bid to persuade the U.S. Justice Department to file an antitrust lawsuit against Microsoft. He joined the School of Law in 1999 with a desire to pursue his interests through scholarship. His research focuses on the interface between domestic constitutional and public international law, including the constitutional law governing the conduct of U.S. foreign relations.
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For those interested in the interplay among history, politics and law, the history of U.S. foreign relations law is a fertile area for study. In a presentation to the School of Law faculty, Professor David Strauss, the keynote speaker the 2007 Childress Lecture, suggested that originalism is a methodology for “outsiders.” This claim is especially true with respect to constitutional foreign affairs law. In recent academic debates related to the Constitution and foreign affairs, “liberals” have tended to make originalist arguments to support their positions, whereas “conservatives” often invoke changed circumstances to defend the concentration of foreign affairs power in the federal executive branch. In the past few years, the U.S. Supreme Court has decided several high-profile cases in which litigants have asserted that various sources of domestic and international law constrain the range of policy options available to the government in pursuing U.S. foreign policy objectives. These themes—original understanding, changed circumstances and the constitutional distribution of power over foreign affairs—will feature prominently during a day-long symposium, “The Use and Misuse of History in U.S. Foreign Relations Law,” that the School of Law will host on Friday, March 7, 2008. The symposium will bring together leading scholars in the fields of legal history and U.S. foreign relations law. Symposium papers will be published in a special issue of the Saint Louis University Law Journal. The topic of the symposium relates
to my ongoing historical research and to my work as an advocate in cases recently decided by, and currently pending before, the U.S. Supreme Court. For example, I co-authored an amicus brief in Hamdan vs. Rumsfeld, 126 S. Ct. 2749 (2006), a case in which the Court rejected the use of military commissions to conduct trials of detainees at Guantanamo Bay. The Hamdan majority cited the brief, a copy of which is available at http://law. slu.edu/sloss/HUMAN%20RIGHTS. htm. Additionally, I assisted with the preparation of an amicus brief in Boumediene vs. Bush, another Guantanamo case currently pending before the Supreme Court. I also drew on my historical research to draft an amicus brief in Sanchez-Llamas vs. Oregon, 126 S. Ct. 2669 (2006), a case that required the Supreme Court to consider the domestic effects of an International Court of Justice decision in cases where foreign criminal defendants were denied their rights under the Vienna Convention on Consular Relations (VCCR). Another VCCR case, Medellin vs. Texas, is currently pending before the Supreme Court. For my commentary on Medellin, you can go to the Texas International Law Journal web site, http://tilj.org/forum/. The symposium will be organized around four panels, each of which will focus on one main paper. Ingrid Wuerth, Professor of Law at Vanderbilt University, will present the first paper, “Foreign Affairs and the New Originalism.” This paper considers several foreign affairs issues from the perspective of what has been dubbed the “New Originalism.” In particular, it
will consider how new originalism, in its several different forms, might address the growth in presidential power in foreign affairs and the role that current executive branch practice plays in ascertaining constitutional meaning. Professor Stephen Vladeck of American University and one other still-to-be-named scholar will provide commentary on Professor Wuerth’s paper. Professor Thomas Lee, Director of International Studies at Fordham Law School, will address the consequences of the Civil War for the development of U.S. foreign relations law in his presentation, “The Civil War in U.S. Foreign Relations Law: A Dress Rehearsal for Twentieth Century Transformations.” The proposed thesis is that the Civil War occasioned
Clause,” given by Professor Michael Van Alstine, the Associate Dean for Research and Faculty Development at the University of Maryland School of Law. He also will explore the significance of those debates for the meaning of the president’s responsibility to “take Care that the Laws be faithfully executed.” Professors Martin Flaherty of Fordham University and Martin Lederman of Georgetown University will serve as commentators. I will present the final paper of the day, “Judicial Foreign Policy: Lessons from the 1790s,” which will examine judicial decision-making in foreign affairs cases in the 1790s. These cases suggest that the Founders believed the executive should defer to the judiciary in at least some
“
For those interested in the interplay among history, politics and law, the history of U.S. foreign relations law is a fertile area for study.
significant departures from prior practice, but that these departures were quickly “papered over” after the war, only to remain as seeds for other changes in foreign relations law that took place in the 20th century. Professors David Golove from New York University and Deborah Pearlstein from Princeton will be the commentators for this portion of the symposium. An examination of the context of early constitutional debates over executive power and the Take Care Clause is the topic of the third presentation, “Taking Care of John Marshall’s Ghost: Treaties, Executive Power and the Take Care
”
cases where foreign affairs controversies are intimately bound up with questions involving individual rights. Professors Arthur Mark Weisburd from the University of North Carolina School of Law and Daniel Hulsebosch from New York University School of Law will be the commentators. With this schedule of papers and allstar cast of scholars, this symposium at the School of Law will be a day of intensive, fascinating discussions that will draw on the lessons of history to shed light on current constitutional controversies related to U.S. foreign relations law.
The Use and Misuse of History in U.S. Foreign Relations Law Friday, March 7, 2008 8 a.m. to 5 p.m. In the past few years, the U.S. Supreme Court has decided several high-profile cases in which litigants have asserted that various sources of domestic and international law constrain the range of policy options available to the government in pursuing U.S. foreign policy objectives. Invariably, the opposing parties submit legal briefs that rely heavily on historical practice and precedent to support their respective positions. This symposium will bring together a group of leading legal historians and foreign relations law scholars to examine the use and misuse of history in framing legal arguments related to the conduct of U.S. foreign policy.
Fall 2007 Saint Louis Brief 17
facult y profile
faculty profile
Stephen C. Thaman, Professor of Law Resumé • Professor of Law and Co-Director, Center for International and Comparative Law, Saint Louis University • Research Fellowship, Max Planck Institute for Comparative and International Criminal Law, Freiburg, Germany • Liaison, Central and Eastern European Law, Initiative of American Bar Association, Moscow, Russia • Fellow, International Research and Exchanges Board, Institute of State and Law, Russian Academy of Sciences, Moscow, Russia • Senior Fellow, International Institute of Higher Studies in Criminal Sciences, Siracusa, Italy • Under Contract with Max Planck Insitute for Comparative and International Criminal Law, Freiburg, Germany • Attorney Trainee, European Commission of Human Rights, Strasbourg, France • Assistant Public Defender, Alameda County, California • Acting Assistant State Public Defender, San Francisco, CA
An International Scholar
Stephen C. Thaman
photo by Steve Dolan
I firmly believe that “ we should all consider
ourselves citizens of the world first, and Americans, Missourians, Californians or St. Louisans only thereafter. 18 Saint Louis Brief Fall 2007
”
Stephen Thaman, a recognized expert on comparative criminal law and procedure, joined the Saint Louis University School of Law faculty in 1995. He is a consultant to former Soviet republics that are reforming their criminal procedure codes. He helped Russia draft its Code of Criminal Procedure, which recently celebrated its two-year anniversary. Currently, he is assisting Latvia, Georgia, Ukraine and Uzbekistan as those republics rewrite their criminal codes. “In general, the republics want to go to a more adversarial system,” says Professor Thaman, who is fluent in six languages. “They want more human rights guarantees and more rights for defendants. It’s fascinating to be a part of the process.” Professor Thaman is in demand as a speaker worldwide and has lectured in 21 countries on five continents on issues in U.S. and comparative criminal law and procedures. His interest in international and comparative law began to develop in 1987. After 12 years as an assistant public defender in Alameda County, Calif., he accepted a Fulbright Senior Professor Award at the Institute of Criminal Law and Procedure at the Free University of Berlin. Professor Thaman was also awarded a research fellowship at the Max Planck Institute for Comparative and International Criminal Law in Germany where he broadened his knowledge of international legal traditions. In addition to traveling extensively, Thaman is a prolific writer and voracious reader. Legal journals from Germany, Spain, England, Italy and Japan fill his shelves and briefcase. His articles have appeared overseas in several languages and in such prominent U.S. journals as the Stanford Journal of International Law, the Hastings International and Comparative Law Review and the Parker School Journal of East European
Law. His present scholarship focuses on a comparative analysis of exclusionary rules, jury systems in Asia, Latin America and Europe, and a comparative perspective on the use of alternative methods of seeking criminal cases other than full-blown jury trial. Also, he and his colleagues at the School of Law are conducting a comprehensive investigation of the Missouri death penalty to determine the criteria used by prosecutors in charging capital cases.
Personal Reflections
I impulsively decided to study law in my third year of a Ph.D. program in German literature. How could one remain holed up in the ivory tower, engaged in belles lettres, when an unjust and bloody war was raging (at that time, Vietnam)? I wanted to do something practical in society—it turned out I ended up defending the poor as a public defender. My return to academia was gradual, however. After quitting the public defender’s office and spending eight years in Europe learning about the criminal justice systems in places like Germany, Italy and Russia, I decided to return to the ivory tower to continue my investigation of foreign legal systems and apply this knowledge to criminal justice reform here and overseas. I have been fortunate to have been involved in such reform in Russia, Latvia, Georgia, Kazakhstan, Kyrgyzstan, Japan and Indonesia. I am very glad Saint Louis University gave me the opportunity to pursue this project. I also hope that the students who take my comparative classes agree that we can learn not only from systems similar to ours, such as the civil law systems, but also from the more exotic variety — the Talmudic, Islamic, Confucian, Hindu and Customary law systems. From every system in the wetlands of legal diversity, we can learn things that will help us to more subtly interpret our own and other modern systems. I love teaching my students about such things, and, as they and my colleagues know, I also love leaving St. Louis to get closer to the sources of this incredible legal diversity through travel. One could derisively call it legal tourism, but I also firmly believe that we should all consider ourselves citizens of the world first, and Americans, Missourians, Californians or St. Louisans only thereafter. You can’t understand what is going on here, our repressive criminal justice system, our repetition of the mistakes of Vietnam, why we became different from the people who live in the countries today from whence our ancestors migrated, without understanding the rest of the world and broadening your perspective. My junior year abroad in Germany 40 years ago was an intellectual and cultural jolt from which I have never recovered. I think every American student should go abroad (and if you haven’t done it yet, be sure to enroll in one of our Summer Programs in Madrid or Berlin, or our other exchanges with Ireland, Germany, France, etc.), for this will help students be better world citizens and better Americans, able to critically assess our legal, political and cultural systems and have a better idea of what is good in our country and what is not. Fall 2007 Saint Louis Brief 19
alumni snapshots
alumni reunion
Class reunions are all about reconnecting with old friends and remembering your school days — or daze, as the case may be. Each year, we ask alumni to fill us in on their careers, families and community activities. These surveys are bound together in a Memory Book for alumni attending the Reunion. This year we asked members of the reunion classes to share their best law school memories. Enjoy this sampling of responses.
My best law school memory is any class taught by Joe Simeone. - Joseph R. Nacy, ’51 Studying Criminal Law and Procedure with Gene Schultz and his uncanny ability to include watermelons, parrots or the Coast Guard in bizarre fact patterns. - Henry Edward Autrey, ’77 I was the defense of a case in moot court and the judge found out (not by me) that I had been up all night awaiting the birth of my daughter Gail, and he mentioned this to the jury. I won the case. - John J. Nangle, ’56 The ladies’ room they added because the class was overrun with women – three! - Colleen (Coke) Hennessy, ’67 The first time I was called upon by Vince Immel in Contracts I. That was also my worst law school memory. - Michael Mihm, ’67
LAW reunion SAINT LOUIS UNIVERSITY
September 28
2007 Trivia Night
At the entering class picnic, teaching Professor Blackmar how to tap a keg of beer. Anthony B. Quinn, ’77 The glee with which Prof. Ordower moved our (summer 1980) taxation final to the “new” law school building so he could be the first to give an exam in the almost finished building. - Kathy Moore Walsh, ’81 Post-finals at Humphrey’s. - Joe Lawder, ’92 The summer E.U. program in Brussels. - Grant Chapman, ’92 Graduation day! - Michael Grossman, ’97 photos by Dolan & Associates Photography
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Fall 2007 Saint Louis Brief 21
CL ASS notes
1956
class notes
John Nangle is retired and enjoying life “as it comes” in Bethany Beach, Delaware.
1960 Ted Salveter III is an attorney in Springfield, Missouri. His book, The Accidental Lawyer, was published in 2006.
1962
photo by Barbara Martin
from the archives Nice view for studying — Students line the windows looking at Lindell Blvd. Do you have a photo you want to share? Send us photos of your time at law school and it might be in the next issue of Saint Louis Brief. E-mail brief@law.slu.edu or mail to: Saint Louis Brief 3700 Lindell Blvd, QDH 320 St. Louis, MO 63108 Photos will be returned in a timely manner.
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1951 Irvin Emerson has been a judge in Hillsboro, Missouri, for 23 years. Joseph Nacy has been an Administrative Law Judge at the Federal Energy Regulatory Commission in Washington, D.C. since 1980. Edward Warner has retired from an active law practice of 50 years.
1953 Roland Wegmann has been in general practice in Hillsboro, Missouri, for 43 years.
Many of John M. “Jack” Bray’s cases as a Washington, D.C. attorney have become the subjects of books. Now, one is headed to the silver screen. The Informant by Kurt Eichenwald is based on an FBI investigation into Archer Daniels Midland and charges of price-fixing lysine, a farm animal food additive and citric acid. Bray’s client, ADM Vice President Mick Andreas, was convicted in the case. Steven Soderbergh will direct the film, which stars Matt Damon and is set to start shooting in April. No word yet on who will play Jack Bray.
1964 Daniel T. Rabbitt of Rabbitt, Pitzer & Snodgrass, P.C., St. Louis, received the 2007 Award of Honor from The Lawyers Association of St. Louis.
1965 David Spitznagel writes that he obtained an alligator trappers license and caught two gators on Lake Hipochee, Florida.
1967 David Dalton served as the elected Prosecuting Attorney for
St. Charles County from 19701975 and as a Circuit Judge, 11th Judicial Circuit, from 1975-1995.
1968 Robert Ritter, chairman of the St. Louis firm Gray, Ritter & Graham, P.C., was profiled in Missouri and Kansas Super Lawyers, 2007. Robb Scoular has been elected president and chair of the 62-member Board of Directors of the Los Angeles Area Council of the Boy Scouts of America, which serves more than 53,000 youth in greater Los Angeles. He is the founding managing partner of the Los Angeles office of Sonnenschein Nath & Rosenthal LLP.
1970 Joseph P. Conran was named in the Best Lawyers in America in the area of Commercial Litigation. Conran is chairman of the management committee at Husch & Eppenberger, LLC, St. Louis. James C. Wirken was named in the Missouri Super Lawyers for the third year in a row. He was named in the “Best of the Bar 2007” by the Kansas City Business Journal. He was also re-elected to the Board of Governors of the Missouri Bar for the 2007-2008 term.
1974 Michael Forster was named managing partner of Sandberg, Phoenix & von Gontard, P.C., St. Louis, in November 2007. He practices in the firm’s business practice group and concentrates on representing financial institutions, and
he specializes in real estate, contract, general corporate and commercial law.
1975 John P. Long is writing the third book in a series analyzing the 168 cases Abraham Lincoln argued before the Illinois Supreme Court. James Welsh was appointed to the Missouri Court of Appeals Western District. He will be vacating the bench in Clay County.
1976 Charles Elbert, partner and member of the management committee in the law firm of Kohn, Shands, Elbert, Gianoulakis & Giljum, LLP, was selected for inclusion in the 2008 Best Lawyers in America for Labor and Employment Law. Daniel J. Stack was appointed Madison County, Illinois, Circuit Court Judge, Civil Division, by Madison County’s Chief Judge Ann Callis, ’90.
1978 In honor of their son Colin, who was killed in a car accident in 2006, David, ’78, and Fritz Fahrenkamp and their daughter Megan have founded the SAVE-ALIFE CAMPAIGN, which encourages kids to have the moral courage to make good choices. For information visit www.savealifecampaign.com.
1979 Kurt Odenwald, former St. Louis County councilman and attorney with Guilfoil Petzall & Shoemake, LLC for 21 years, was named to the Missouri Court of Appeals Eastern District.
1980 Ronnie E. Dixon has been the Deputy District Attorney, Fulton County District Attorney’s Office, Atlanta Judicial Circuit, Head of Trial Division since 2001. Mary D. Fox was named District Defender in St. Louis city for the Missouri State Public Defender system in July 2007. Carol Chazen Friedman was re-elected to a two-year term on the Board of Governors of the Missouri Bar. Laura O’Sullivan was named District Defender in St. Louis County in July 2007. Terry Schnuck is producer of the Broadway musical “Spring Awakening,” which won several Tony Awards this year, including Best Musical.
1984 Salvador Hernandez has been named Assistant Director in Charge of the FBI’s Los Angeles division.
1985 Mary Tolle was elected a Dallas County Criminal Court Judge in November 2006.
Fall 2007 Saint Louis Brief 23
CL ASS notes
1986
1988
Donald K. Anton will return to the University of Michigan School of Law to serve as a Visiting Professor of Law from 2008-2010. He will teach courses in International Law and Environmental Law and will use his recently published casebook, International Environmental Law: Cases, Materials, Problems (LexisNexis, 2007 with Charney, Sands, Schoenbaum & Young).
Margaret Donnelly was presented with LAAW’s Special Recognition Award for her years of service as an attorney and legislator (Missouri state representative) on behalf of abused women in St. Louis.
Thomas J. O’Toole Jr. was nominated to the 2008 USGA Executive Committee. He is a partner in the law firm of Doster, Mickes, James, Ullom, Benson & Guest, LLC, St. Louis, specializing in real estate transactions, construction litigation and zoning issues. Thomas L. Stewart, outgoing president of the Missouri Association of Trial Attorneys, has been honored with MATA’s Outstanding Service Award for 2007. He is a shareholder in the law firm of Zevan Davidson Farris Steward in St. Louis. Nathaniel Walsh is terminating his partnership with Kevin McGowan in McGowan/ Walsh, a downtown St. Louis property development company.
1987 John A. Lally continues to practice law in St. Louis with Rhodes & Lally in the areas of personal injury litigation, workers compensation and insurance litigation. Mary Dorsey is an attorney with Ahlheim & Dorsey, LLC and chair of the St. Louis County Board of Equalization.
24 Saint Louis Brief Fall 2007
John Nations joined Armstrong Teasdale LLP in St. Louis. He has been mayor of Chesterfield since 2001 and is a former partner in Nations, Hettenbach, & Diehl, L.L.C.
1989 Paul D’Agrosa was voted “Best Lawyer” by The Riverfront Times, 2007. He also serves as a legal expert on KMOV-TV in St. Louis.
1990 Ann Callis was elected Chief Judge of Madison County, Illinois, in 2006. Jennifer Joyce was re-elected to a two-year term on the Board of Governors of the Missouri Bar.
1991 Sarah E. Campbell has relocated to Dallas and taken the position of Director of Policy and Procedure Management for Tenet Healthcare Corporation. John Diehl joined Armstrong Teasdale LLP in St. Louis. He has been chair of the St. Louis County Board of Election Commissioners since 2005 and is a former partner in Nations, Hettenbach, & Diehl, L.L.C. Celeste M. Harris was elected to the board of directors of Legal Aid of North Carolina. She is
an attorney and partner in the law firm of Maynard & Harris, PLLC in Winston-Salem.
1992 Alan Fine has been promoted to member at Brown Smith Wallace LLC, St. Louis. Norbert Glassl joined Moser & Marsalek, P.C.
1994 Allison Bartle is a senior attorney for AT&T Advertising & Publishing in St. Louis. John R. Headrick has been the Inspector General for Office of Illinois Auditor General since 2004. Matthew Nordmann is with the St. Louis Equity Fund.
1995 David Franklin has joined Amin, Turocy & Calvin, LLP in Cincinnati with a focus on software, electrical and medical device patents. Deborah Herndon has joined the law office of Robert E. Richardson in Charleston, West Virginia. Kimberly A. Jones, partner with Blackwell Sanders Peper Martin, was named in the Missouri Lawyers Weekly “Annual Up & Coming Lawyers” selection for 2007.
1996 Michael Albrecht is director of operations for HDS Group, LLC, a Beverly Hills-based real estate developer and homebuilder.
Amy Collignon Gunn, plaintiff ’s trial attorney with Simon Passanante, was named in the Missouri Lawyers Weekly “Annual Up & Coming Lawyers” selection for 2007. Trent Mitchell, assistant circuit attorney with the City of St. Louis Circuit Attorney’s Office, was named in the Missouri Lawyers Weekly “Annual Up & Coming Lawyers” selection for 2007.
1997 John Spielman was elected Associate Circuit Judge in Dunklin County, Missouri, for the 35th Judicial Circuit in 2006.
1998 Randy L. Gori is a partner at the Edwardsville, Illinois, law firm of Goldenberg, Heller, Antaguoli, Rowland, Short & Gori. Gregory J. Linhares was selected in November 2007 by the Supreme Court of Missouri to serve as its new state courts administrator, the chief administrator overseeing Missouri’s state court system.
2000 Lisa Finkelstein opened her own law practice in Hillsboro, Missouri, this year. She practices family law, real estate law, traffic and DWI and employment issues. She continues to do guardian ad lidem work for Jefferson County. John Gunn was elected to another term of the Young Lawyers’ section council of the Missouri Bar.
in memoriam JA. Hamilton Strong, 1931
Edwin Classen, 1952
John Bahnak, 1972
August Griesedieck, 1937
M. Guy Hardin, 1952
Robert Hellmann, 1973
Randall Robertson, 1947
Donald Fraser, 1953
Virginia Constantz, 1975
The Hon. Donald Pepple, 1948
Edward Miller, 1955
James Gonedes, 1977
Edward Gray, 1949
Gene Arras, 1957
Steven Cohen, 1987
Edward Neville, 1950
Rollin J. Moerschel, 1957
Sharon P. Hengel, 1997
Paul Henderson, 1951
William Schooley, 1961
Daniel Bennett, 1998
The Hon. Robert Saitz, 1951
Allan Fudim, 1969
Bobbie Moon was named partner with Sandberg, Phoenix & von Gontard, P.C., St. Louis.
2003
2001 Zachary Asher Abeles received the 2007 David N. and Roselin Grosberg Young Leadership Award from the Jewish Federation of St. Louis. He is with Polsinelli Shalton Flanigan Suelthaus PC in Clayton. Joel Green joined Moser & Marsalek, P.C. Evita Tolu is an attorney with the law firm of Stientjes & Pilske LLC. She practices exclusively business and tax law. Aaron Zigler is an attorney with Korein Tillery, a three time pick for the National Law Journal ’s Plaintiff ’s Hot List Hall of Fame.
2002 Tim Forneris is a Missouri State Public Defender by day and still moonlights as a groundskeeper at Busch Stadium, where he caught and returned Mark McGwire’s 62nd home run ball in 1998.
Matt Blevins is the director of business development for St. John’s Hospital in Springfield, Illinois. Ted Disabato was named in the 2007 “30 Under 30” Awards in the St. Louis Business Journal. Abdul Hakim Shabazz hosts the morning show at WXNT-AM and provides news analysis and commentaries for WRTV-TV in Indianapolis. Abdul writes for the Indianapolis Business Journal and is editor of the Indiana Barrister, a leading blog on state and local issues. He is also of counsel at the law firm of John, Lewis And Wilkins LLP and teaches at the University of Indianapolis and Ivy Tech Community College.
2004 David C. Laplante moved to Shook, Hardy & Bacon LLP in Kansas City in January 2007. He practices in the National Products Liability section.
2005 Carla Allen was named in the 2007 “30 Under 30” Awards in the St. Louis Business Journal.
Lindsay A. Chapman is an associate in labor and employment law at Whyte Hirschboeck Dudek, S.C. in Milwaukee, Wisconsin. Matthew Fry is with Rosenblum, Schwartz, Rogers & Glass, P.C. in St. Louis where he practices criminal law. He was a recipient of a 2007 St. Louis Business Journal “30 Under 30” Award and was recognized for his commitment to the law and community. Nick San Diego is working for the Livingston law firm in Fairview Heights, Illinois, concentrating in environmental law. Robert V. Willeford Jr. moved to Texas to take a new position at Raytheon Company right after law school. He has plans to move into a tax attorney position in Texas. Timothy Wright is a procurement advisor with The Boeing Company in Mesa, Arizona.
2007 Gregory Bulgrin is an associate at Lewis, Rice & Fingersh, L.C. in St. Louis. Carine Doyle is an associate at Lewis, Rice & Fingersh, L.C. in St. Louis.
send us an update Moved lately? Changed your e-mail address? Have a new job? The Office of Development and Alumni Relations wants to hear your latest news and get updated information so we can keep you informed about School of Law events and news. Go to law.slu.edu/alumni and click “update my information.” You can also e-mail your class notes to brief@law.slu.edu or send a letter to: Saint Louis University School of Law Office of Development and Alumni Relations 3700 Lindell Blvd. Queen’s Daughters Hall St. Louis, MO 63108
annual fund news Total dollars raised through 1/3/08:
$272,645 Top three classes based on dollars given:
1967: $25,750 1978: $16,240 1975: $10,400 Make your gift today. Go to law.slu.edu/ alumni/giftform. Saint Louis University
School of Law
a n nual f u n d Fall 2007 Saint Louis Brief 25
calendar of
events ’08
January 28
Health Law Distinguished Speaker Tim Westmoreland
February 18 Jurist-in-Residence Judge Myron Thompson 26 WLSA Judges Reception 27 WLSA Women in Law Panel
March 7 11 28 28
Conference: The Use and Misuse of History in U.S. Foreign Relations Law Health Law Distinguished Speaker Wendy K. Mariner Adler-Rosecan Lecture and Moot Court Finals Annual Public Interest Fellowship Auction
April 3 4 4 11 18
Clayton, Missouri Alumni Reception Health Law Symposium: Disability, Reproduction and Parenting Public Law Review Symposium: The Changing Tide of Trade: The Social, Political and Environmental Implications of Regional Trade Agreements Academic Excellence Awards Student Legal Writers’ Association Symposium
May 7 15 19
September 26–28
Downtown St. Louis Alumni Reception School of Law Hooding Ceremony Saint Louis University Commencement School of Law Alumni Reunion
photo by Jay Fram
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