University of Pittsburgh

Archived Faculty News

September 26, 2006 - 2:27pm

W. Edward Sell Professor of Business Law Douglas M. Branson comments on the Hewlett-Packard boardroom spying scandal in today's Pittsburgh Post-Gazette:

What then is to be done when a director allegedly has misbehaved? No witch hunt, for certain. No private detective or security firm. No sanctions. Instead, if a critical mass of directors has reason to suspect the honesty or integrity of a fellow board member, they should bite their tongues. Management simply should not renominate that person for re-election. Short of re-election, management could seek removal of that director at a special shareholders' meeting called for that purpose but that alternative would cost several hundreds of thousands of dollars in a modern publicly held company. Besides, the offending individual may be around for only up to 11 months. More likely, they will know when they are not wanted, resigning beforehand.
 Link:  http://www.post-gazette.com/pg/06269/724955-28.stm Professor Branson's op-ed first appeared at JURIST. Link:  http://jurist.law.pitt.edu/forumy/2006/09/built-to-last-corporate-governance-at.php
September 26, 2006 - 2:27pm
A long-serving federal judge may have committed an impeachable offense, Professor Arthur D. Hellman told a Congressional investigating committee, but the House should not proceed with impeachment at this time.Professor Hellman testified on September 21 at a hearing of the Subcommittee on Courts, the Internet and Intellectual Property of the House Judiciary Committee on H. Res. 916, “Impeaching Manuel L. Real, judge of the United States District Court for the Central District of California, for high crimes and misdemeanors.” In his written statement, Professor Hellman said:
According to the public record, the essence of the alleged misconduct is that Judge Real received an ex parte communication from a litigant and, based on that communication, engaged in “a raw exercise of power” that caused serious harm to that litigant’s adversary. In my view, the accusations against Judge Real, if substantiated, could provide an adequate basis for impeachment and removal from office. However, a Special Committee has been appointed – belatedly – under Chapter 16 of the Judicial Code to investigate the alleged misconduct. I believe that the preferable course of action for the House (and this Subcommittee as its agent) is to suspend proceedings on H. Res. 916 until the Special Committee has completed its work and the Judicial Council and/or the Judicial Conference of the United States have acted upon its report. If the investigation by the Special Committee substantiates the allegations of misconduct against Judge Real, but the Judicial Council and the Judicial Conference fail to impose suitable punishment, the House will be able to proceed with impeachment on a much stronger footing than it could do today.
The full text of Professor Hellman’s statement can be found at: http://judiciary.house.gov/media/pdfs/hellman092106.pdfNews coverage can be found in the Los Angeles Times (free registration required) and the Legal Times.   A video webcast of the hearing is available at http://boss.streamos.com/real/hjudiciary/courts/courts92106.smi
September 19, 2006 - 2:29pm
Our longtime Pitt Law colleague Welsh White passed away early in 2006. A series of remebrances is forthcoming in the Ohio State Journal of Criminal Law and will be available at the journal website. Here are two excerpts from one piece, by Professor John Burkoff:
Welsh also was (and this is something that each and every one of our mutual colleagues knows as well) a very kind and a decent man. Not one of his colleagues disliked him. Not one. Oh, they disagreed with him from time to time, of course. Obviously. We're lawyers and law professors, after all. We disagree with each other as a matter of reflex. We're professional contrarians.But, agree or disagree, each and every one of my colleagues nonetheless respected Welsh and his views and his opinions. And they did this in large part because they knew-they knew!-that each and every one of his positions on the matters that came before us was expressed from the heart. . . .
Welsh White cared that we not devolve into criminals ourselves in the way in which we treat those actually convicted of crimes. To my mind, and I know to many of you as well, Welsh was in that regard-in that conviction that he possessed and acted upon-not just a good and decent man: he was truly a hero as well. And even more than that, he was a patriot. He treasured our American constitutional values, and he didn't just talk about them, he actually went out and he fought for them.
September 19, 2006 - 2:28pm
Professor Sandra Jordan is consulting with the Minority Business Enterprise Legal Defense and Education Fund (MBELDEF). MBELDEF, headquartered outside of Washington, D.C., is a national, non-profit, public interest law firm founded in 1980 by former member of the House of Representatives Parren J. Mitchell. MBELDEF's litigation activities are intended to achieve equity and fairness in the marketplace on behalf of minority business enterprises. MBELDEF has as its mission the goals of defending, advocating, and promoting domestic and international policies affecting equitable and full participation of minority enterprises in the local, regional, national, and global marketplace. Professor Jordan will be working with the firm to develop strategies to use the civil RICO statute as a tool in certain types of cases involving fraud and abuse in federal minority set-aside programs.Professor Jordan also was recently appointed to the Gender Equity Task Force of the Allegheny County Bar Association. The Task Force is charged with reacting to the results of a 2005 survey of ACBA membership that focused on gender issues. The Task Force will examine and publicize the results of the survey; investigate key gender issues affecting women in the legal profession; develop recommendations to address key gender bias issues regarding pay equity, retention of women in the legal profession, career advancement and professional satisfaction, and work/life balance; develop strategic alliances with law firms, legal departments and other legal organizations to ensure a level playing field; and create a body to implement the recommendations.
September 12, 2006 - 2:32pm
Professor Derrick Bell, the Distinguished Visiting Professor of Law at Pitt and Visiting Professor of Law at New York University, kicked off this year's faculty colloquium season recently with a talk on "participatory teaching." Professor Bell summarized his talk this way:
In brief, what I have tried to do in a number of evolving ways over my 36-year teaching career is to structure courses, mainly in the civil rights and constitutional law areas so that students teach one another. I move from the podium and become a director and place students in the spotlight. Rather than lecture on the changing interpretations of say the commerce clause, Art. 1, Sec. 8, I write a hypothetical case presenting the key issues and have students brief and argue the case to the class sitting as the Bell Court. A course web site enables students to write and post their views and then discuss them in a succeeding class. Through this process, I cover the major components of the course, injecting comments both short and lengthy. Every student handles one side of a case and posts a dozen essays totaling at least a thousand words. These writings along with class presence and participation provide adequate basis for a detailed, written evaluation that I provide in a four to six page grade memo – more interesting than grading final exams, but requiring much more time. The tremendous amount of work involved is shared by student teaching assistants who both build on what they learned the year before, and work with the students to whom they are assigned, helping and monitoring their performance and drafting at their assigned students evaluations both at mid-term and at the course’s end. On request, I can provide a 50 page discussion of this teaching approach.
September 12, 2006 - 2:31pm
Professor Rhonda Wasserman has published Tolling: The American Pipe Tolling Rule and Successive Class Actions in the Florida Law Review (58 Fla. L. Rev. 803 (2006)). The abstract:
Timing is everything. Even the most meritorious lawsuit will be dismissed if the statute of limitations has run on the plaintiff’s claim. In class action litigation, this hurdle is particularly daunting. Supreme Court precedent makes clear that if a class action complaint is timely filed, then the claims of all class members are deemed timely. Likewise, if a motion to certify the class is denied, absent class members may seek to intervene in the pending action or to file individual actions and either way, the statute of limitations is tolled from the date of filing of the class action complaint until denial of the motion to certify. But what if the absent class members seek to present their claims collectively in the context of a successive class action? Is the statute of limitations tolled in this context as well? Intuitively, one might think that the same policies that justify tolling in the first two situations also justify tolling in the successive class action context. Yet a majority of the federal Courts of Appeals that have addressed this issue have denied tolling in the successive class action context. Given the volume of class action litigation, the lack of control that absent class members have over the timing of the certification decision, and the devastating effect the statute of limitations may have on their claims, it behooves us to understand why the courts have resolved the tolling issue for successive class actions differently and whether such differential treatment is justified. This Article analyzes three sets of policies that have influenced the courts in this context: the policies underlying statutes of limitations; the policies underlying Rule 23; and the policies underlying preclusion doctrine. A careful analysis of these competing policies calls the majority rule into question in two common circumstances: where certification initially was denied because of a problem with the class representative or because of a problem with the class itself that the successive class action seeks to remedy. Only where there is a problem with the class itself and the successive class action fails to address that problem does the combination of relevant policies counsel against tolling.
The article can be downloaded here.
August 31, 2006 - 2:14pm
Professor Lu-in Wang has published Discrimination by Default: How Racism Becomes Routine (NYU Press, 2006). From the publisher's site:
Much as we "select" computer settings by default—reflexively, without thinking, and sometimes without realizing there are other options—we often discriminate by default as well. And just as default computer settings tend to become locked in or entrenched as the standard, discrimination by default creates a situation in which disparate outcomes are expected, accepted, and taken for granted. The killing of Amadou Diallo, racial disparities in medical care, the dominance of Whites and men in certain professions, and even the uneven media attention paid to crimes depending on their victims' race and class, all might be cases of discrimination by, or as, default. Wang contends that, today, most discrimination occurs by default and not design, making legal prohibitions that focus on those who discriminate out of ill will inadequate to redress the largest share of modern discrimination. She draws on social psychology to detail three ways in which unconscious assumptions can lead to discrimination, showing how they play out in a range of everyday settings. Wang then demonstrates how these dynamics interact in medical care to produce an invisible, self-fulfilling, and self-perpetuating prophecy of racial disparity. She goes on to suggest ways in which institutions and individuals might recognize, interrupt, and override the discriminatory default.
August 31, 2006 - 2:11pm

Pitt Law faculty members had a busy Summer of 2006. Here is a brief recap of some highlights, featuring Professors Brake, Curran, Burkoff, Hellman, Baylis, Brand, Brostoff, Delgado, Stefancic, Infanti, Mueller, Luneburg, Frolik, Fein, and Meisel:

Professor Deborah Brake spent much of the summer working on a book, tentatively titled She Got Game: Title IX and the Women?s Sports Revolution. She also served as the primary author of an amicus curiae brief in Ledbetter v. Goodyear Tire & Rubber Co., a Title VII pay discrimination case before the U.S. Supreme Court. The issue in the case is whether Title VII permits an employee to challenge ongoing pay discrimination that began before the most recent pay decision immediately preceding Title VII's short 180-day limitations period (the Eleventh Circuit ruled that it does not). The brief focuses on the implications of the Eleventh Circuit?s rule for the gender wage gap, and in particular the effect of the rule on employees who experience pay discrimination at the time they are first hired (when much pay discrimination begins, carried through and amplified in subsequent percentage-based raises). The brief also draws on social science research elaborating the difficulties employees face perceiving and complaining of pay discrimination, which make the lower court's rule particularly ill-suited for such claims. The brief was filed on August 31 on behalf of 24 women's organizations, including the National Partnership for Women and Families, the National Women?s Law Center, Legal Momentum (formerly NOW-LDEF), Equal Rights Advocates, and the ACLU Women's Rights Project. In addition, Professor Brake co-authored a two-part series of columns for Findlaw over the summer discussing the Supreme Court?s recent Title VII retaliation case, Burlington Northern & Sante Fe RR v. White, decided in late June. Professor Vivian Curran accepted an invitation to become the U.S. represenatative of the International Alliance for Advanced Judicial Studies, an international network of judges, scholars and practitioners being formed by the Institut des Hautes Études Juridiques in France. Participants already include supreme court justices from the U.S., France, Canada, England, Wales and Australia. Over the summer, I helped a French plainitffs' attorney translate and annotate for Internet publication a French court decision of June 6, 2006 that is a landmark in French law on state liability relating to crimes against humanity. I am working on an article on that case as an illustration of legal globalization. I have proposed (unconfirmed as of this writing) to give a talk on "Picqaurt as the Reluctant Hero of the Dreyfus Affair". Professor John Burkoff, who will be the Executive Dean of the Summer 2007 Voyage of Semester at Sea, now associated with the University of Virginia, spent two weeks in June this summer assisting with the pre-sail administration of the Summer 2006 Voyage in San Diego and then working with the Summer 2006 administrators onboard the M.V. Explorer, sailing across the Pacific from Ensenada to Honolulu. This summer, he also completed most of the hiring of his staff for the Summer 2007 Voyage. Burkoff, who was the first Chairperson of the City of Pittsburgh's Citizens' Police Review Board from 1997 to 1999, addressed the current Board at its Retreat earlier this summer, explaining the politics which gave rise to the creation of the Board and discussing current and historical issues in police-community relations in Pittsburgh and other cities. In July of 2006, Professor Burkoff spent a week consulting and lecturing in Albania. The project with which he was involved was State Department-funded, dealing with issues related to improving community-police relations in Albania. It was administered jointly by the University's Center for Russian & East European Studies and the Institute for Democracy and Mediation (IDM) in Albania. Burkoff had the opportunity to meet and talk with many of the most significant actors involved in improving law enforcement and the criminal justice system in Albania. Most of his work was in Tirana, meeting with: senior officials at the Ministry of Interior; the Mayor and other senior political and police officials in Lushnja, a town sixty-five kilometers southwest of Tirana; the Chief Prosecutor of Albania; the Director of the Postgraduate School of European Studies at the University of Tirana; the Director and faculty of the Albania School of Magistrates; four of the Justices of the Albania Supreme Court; many of the faculty members of the University of Tirana Faculty of Law; and a number of senior officials at the U.S. Embassy in Tirana. Burkoff delivered five formal lectures while he was in Albania: to professionals in the Public Order Section of the General Police Directorate of the Ministry of the Interior, senior officers in the Tirana Police Department, heads of Tirana Municipality units, civic groups, Association of the Municipalities, and students; to student police administrators in the Senior Management Course at the National Police Academy; to the Mayor, Municipal Councilors, Regional Prefect, City Solicitor, Chief of Police, Police Administrators, Community Groups, and concerned citizens in Lushnja; to students in the Masters Program at the School of European Studies of the University of Tirana; and to the National Police Academy Teaching Staff. Also in July, closer to home, Professor Burkoff attended the Pennsylvania Conference of State Trial Judges Annual Meeting in Hershey, Pennsylvania, as a member of the Pennsylvania Commission on Judicial Independence. The Commission also met formally during the Annual Meeting with the Chief Justice and other lawyers and judges involved with judicial-independence issues. Burkoff was appointed to the Commission by the Pennsylvania Supreme Court in February of this year and is one of two law professors on the Commission, along with Professor Geoffrey Hazard of Penn and Hastings. Professor Burkoff completed a number of writing projects this summer. In addition to preparing the 2006 Supplement to his casebook, Criminal Procedure: Cases & Materials, Problems & Exercises (2d edition) (Thomson/West) , which was published this month, he also completed the manuscript for Criminal Procedure: Cases & Materials, Problems & Exercises (3d edition) (Thomson/West) , which is now in production and will be published later this Fall. Burkoff also authored a Teacher's Manual for the new Third Edition of this casebook as well. Burkoff also prepared the 2006 Supplement for his casebook, Criminal Law: Cases & Materials, Problems & Exercises (2d edition) (Thomson/West), which was published this month. Additionally, he completed work on a new edition of his treatise, Principles of Criminal Procedure (2d edition) (Thomson/West), which is now in production and will appear in October. Moreover, Burkoff began and completed work this summer on the September 2006 Release for his treatise, Search Warrant Law Deskbook (Thomson/West), as well as the 2006 Supplement for his treatise, Ineffective Assistance of Counsel (Thomson/West) (co-authored with Adjunct Professor Nancy Burkoff). He also completed the manuscript for the 2006 Edition of his treatise, Criminal Defense Ethics: Law and Liability 2d (Thomson/West), which will be published in early September. Finally, Professor Burkoff began work this summer on a new treatise on substantive Criminal Law, which will be completed late this Fall and is to be published in 2007 by Aspen, as part of their new "Insight Series". Professor Arthur D. Hellman completed four books between the end of classes in May and the beginning of the new term: the Teacher?s Manual for First Amendment Law: Freedom of Expression and Freedom of Religion (with William D. Araiza and Thomas E. Baker); a Judicial Code Supplement (with Lauren K. Robel); the 2006 Supplement to First Amendment Law: Freedom of Expression and Freedom of Religion (with William D. Araiza and Thomas E. Baker); and the 2006 Supplement to Federal Courts: Cases and Materials on Judicial Federalism and the Lawyering Process (with Lauren K. Robel). Professor Teresa Brostoff spoke at the biennial conference of the Legal Writing Institute in Atlanta in June. She participated in a panel presentation entitled, "Expanding Classroom Borders by Incorporating Rhetorical Strategies and Practical Legal Skills into the ESL Legal Writing Classroom." Professor Brostoff?s article, ?Using Culture in the Classroom: Enhancing Learning for International Students,? was accepted for publication by the Michigan State Journal of International Law. Professor Elena Baylis was awarded a grant by Pitt's Central Research Development Fund for research on transitional justice in the Democratic Republic of Congo and used this funding to go to Kinshasa in June and July and study DRC military courts' use of the International Criminal Court's statute in war crimes trials there. In June, Professor Baylis was also a panelist at an Immigration, Integration and Human Security Issues conference at Sciences-Po in Paris. Her article, "Sending the Bureaucrats to War," which is co-authored together with David Zaring at Washington & Lee, was accepted for publication by the Iowa Law Review. Professors Richard Delgado and Jean Stefancic spent the summer as visiting scholars at the Center for the Study of Law & Society at UC-Berkeley School of Law (Boalt Hall). Professor Delgado published A Skewed View of Free Speech at Harvard Law, in Academe, the publication of the American Association of University Professors, and completed a draft article on the myth of upward mobility. He and Jean Stefancic continued work on a reader, a second edition of the Perea, et al. casebook Race and Races: Cases and Resources for a Diverse America (West), a book on postcolonial theory, and a casebook on Latinos & the Law. They also continued editing three book series, Critical America (NYU Press), Everyday Law (ParadigmPublishers), and The Critical Educator (Taylor & Francis/Routledge), with three new books in print and several more in the pipeline. Professor Janice Mueller gave two patent law lectures in the Santa Clara University Law School's summer program in Munich. On Aug. 31-Sept. 2, she chaired the 2006 annual meeting of the Intellectual Property Expert Advisory Committee of the Consultative Group on International Agricultural Research (CGIAR) in Rome. Professor Tony Infanti's article, "Homo Sacer, Homosexual: Some Thoughts on Waging Tax Guerrilla Warfare" was published at in Unbound: The Harvard Journal of the Legal Left. Professor William Luneburg prepared a report and proposed recommendation regarding the need for Congress to amend the Lobbying Disclosure Act of 1995 to cover grassroots lobbying and to expand the existing disclosure requirements applicable to the members of lobbying coalitions. The recommendation was approved in May by the Council of the ABA's Administrative Law and Regulatory Practice Section for final action by the ABA's House of Delegates at its Annual Meeting in Hawaii. In August the House approved the resolution without amendment. Lobbying reform remains on Congress's agenda when it returns from its summer recess, at which time it is expected that Congress will be advised of the ABA's action as it considers what actions to take in response to the Jack Abramoff scandal. Professor Alan Meisel, Director of the Center for Bioethics and Health Law, announced that the Center is the first recipient of a grant from The Greenwall Foundation for the Oscar M. Ruebhausen Visiting Professorship in Bioethics. The grant will support a three-day visit by Michael J. Sandel, the Anne T. and Robert M. Bass Professor of Government at Harvard in November. Prof. Sandel will deliver a public lecture on "Markets and Medicine: The Commodification of Health." Professor Meisel also was appointed to the American Bar Association's Committee on Bioethics and the Law. Professor Ronald Brand gave a presentation on the 2005 Hague Convention on Choice of Court Agreements as part of a Showcase Panel at the Spring Meeting of the ABA International Law Section in New York, in April 2006. Also in April, Professor Brand accompanied the Vis International Arbitration Moot teams from the University of Pittsburgh; Donetsk National University, Ukraine; Kyiv National Taras Schevchenko University, Ukraine; the University of Belgrade, Serbia; and the University of Pristina, Kosovo, during the competition in Vienna. In June, Professor Brand gave a presentation on the Hague Convention on Choice of Court Agreements at the Biennial Meeting of the International Law Association in Toronto, Canada. He also taught an Introduction to the American Legal System course to lawyers from the Slovak and Serbian operations of US Steel in Kosice, Slovakia. The program is part of a series of courses for US Steel lawyers provided through the Center for International Legal Education. Two pieces by Professor Brand were published: Federalism and the Allocation of Sovereignty Beyond the State in the European Union, 44 Duquesne Law Review 71 (2005); and Balancing Sovereignty and Party Autonomy in Private International Law: Regression at the European Court of Justice, in Universalism, Tradition and the Individual, Liber Memorialis Petar ?ar?ivi? 35 (Johan Eraus, Vesna Tomljenovic, & Paul Volken, eds., 2006). Professor Lawrence Frolik was named a Super Lawyer in the category of Elder Law attorneys in the annual special edition published by Philadelphia Magazine. In August, LexisNexis published the 2006 Supplements to his two casebooks, Elder Law Cases and Materials and The Law of Employee Pension and Welfare Benefits. In June, he gave the keynote address at the Colorado Estate Planning Annual Meeting held in Vail, Colorado. In July, he presented a talk to the Pennsylvania Matrimonial Lawyers at their annual meeting in Toronto, Canada. Also in July, he helped organize the PBI Elder Law Institute in Harrisburg, where he also presented on The Ethics of Assisting a Dying Client along with Dr. David Barnard. In August, he helped plan and organize the initial meeting of the Certified Advanced Practitioners of the National Academy of Elder Law Attorneys. Professor Frolik is only one of two academics in the organization, which is composed of the nation?s preeminent elder law attorneys. Professor Marvin Fein appeared in local media, commenting on some of the uncertainty arising out of Mayor Bob O'Connor's disabling illness. He published an op-ed in the Pittsburgh Post-Gazette that addressed the termination of the City's solicitor, and appeared on WTAE-TV to discuss the role of the deputy mayor.
August 30, 2006 - 2:15pm

Dr. Professor Hubert Isak Dr. Professor Marc De Vos Pitt Law is delighted to welcome two visiting faculty from Europe: Dr. Professor Marc De Vos, University of Ghent, Belgium, who will be teaching European Labor and Employment Law, and Dr. Professor Hubert Isak, University of Graz, Austria, who will be teaching Introduction to European Union Law. Professor Hubert Isak (pictured top right) holds a Doctor iuris (1978) from the University of Graz. He also studied European Law and Legal Philosophy at the Universities of Paris II, I, and X. He is a Professor at the University of Graz in Austria and has taught in various Central Eastern European Countries (CEEC). He also taught judges and barristers in European Law in Austria, Hungary, Poland, Croatia and Slovenia. Since 2003, he has been the head of the Institute of European Law. He is a member of the Advisory Committee in the European Affairs Ministry of Foreign Affairs, the Board of the Austrian Society of European Law and the European Communities Studies Association/Austrian Branch. He has several publications in the field of European Law and International Law. Professor Marc De Vos (pictured bottom right) is a professor of labor and employment law at Ghent University Law School and the University of Brussels, Belgium and a regular visiting professor at universities in Europe and the US. He teaches courses on Belgian, European and international employment and labor law. He serves as Adjunct Director of the LLM program in European and Comparative Law at Ghent University Law School. A member of the editorial board of several legal periodicals and the recipient of several academic rewards, he is also a steering committee member of an interdisciplinary MA in American Studies, wherein he teaches an introductory course on American law and the American legal system. Professor De Vos holds a Licentiate and Doctorate in Law (University of Ghent, 1993 and 2000), a Master in Social Law (Université Libre de Bruxelles, 1994), and a Master of Laws (Harvard University, 2000). His main fields of interest include Belgian and European employment and labor law, Belgian contract law, fundamental rights, labor market and welfare reform. On these subjects he has practiced, published, taught, lectured, and debated extensively, both nationally and internationally, and both in academic, professional and policy circles.

August 28, 2006 - 2:16pm
Professor Larry Frolik has published The Law of Later-Life Health Care and Decision Making (ABA, 2006).
Today's aging population presents new challenges and unique legal questions in many areas of the law, but none more so than in health law and in the legal consequences of decision making for those of diminished mental capacity. The Law of Later-Life Health Care and Decision Making takes a close look at the manner in which the law regulates and reacts to health care and personal decision making for the elderly. Professor Lawrence Frolik's groundbreaking scholarly work in the area of guardianship and elder law has earned him recognition as a national expert on the legal issues of older Americans. Here, he guides the reader through the many ins and outs of what can be a complicated and confusing mixture of federal and state statutes and case law. Topics covered include: * Paying for Health Care * Long-Term Care Housing Options * Paying for Long-Term Care * Legal Implications of Mental Incapacity: Guardianship, Conservatorship & Powers of Attorney

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