Issuu

John Marshall Harlan School of Law*

* For e xplanation , see Ne-W hy-LS, p. 2

ETOUI Volume III, Issue I

208 A.D. 389 ( 1924)

Novem b er-December, 11 9 92

New York Moves Bar Date, Conflicts With NJ, CT Exams by Nick Caputo

· The good-looking lounge before the return of the old furniture .

Lounge Nears Completion by Steve Simpson

The long wait for the new student lounge is almost QVer. J he renovation of the basement area is nearing completion, with some finishing touches, like the placement of lockers, telephones and vending machines, recent ly completed. The used furniture from the former lounge has been brought back from the dead to furnish the new quarters, but only temporarily. The administration promises that new furniture will be purchased to comp l ete the decorating scheme.

When construction workers opened the vault area beneath the w ·o rth Street- sidewalk, they_ ra_n into a few problems that held up the basement renovations by more than two months . "There are always uncertainties involved with rehabilitation construction," said George Hayes, Director of Facilities Management, in explaining the delays . The original plan for the basement area has been altered. Originally, the school planned to pro~

The New York State Board of Law Examiners recently changed the tentative date of the New York bar exam because it coinci ded with a Jewish holiday. The new date, however, conflicts with the New Jersey and Connecticut exams, making it impossible fo r a student to take both the New York bar and one of these other bars. In the past, the New York bar was administered on Tuesday, the multi-state exam was given on Wednesday, and the New Jersey and Connecticut exams were given on Thursday . This year, New York had scheduled its portio n of the bar on Tuesday, July 27 , 1993; as it turns out, the Jewis h holiday of Tishoh B 'ov is cel'ebrated on the same day. In ~r~s_ponse .. to individual lette r s informing them of the conflict; the bar examiners changed th e date to Thursday, July 29, 1993. But over thirty-percent of those who take t he New York bar take either the New Jersey or Connecticut bar as well. Becaus e New York tested 7500 examinees last year, approximately 2400 individuals will be inconvenie~ced by the change in date.

See BAR, p ag e 5

Inside

See LOUNGE, page 3 A Nam e Ch an g e for NYLS? . . . .

Read My Quips:

. . . . .2

How N YLS F a res in Job Market ..

The Death of Memorable Political Speech

Bob & Dor o t hy fro m Accoun ting: S ervice with a Sm ile

by David Sigmund "The world will little note nor long remember what we say here ," Abraham Lincoln said in the Gettysburg address . Lincoln, of course, was wrong. Although Lincoln's words endure, no one would bother remembering what present-day politicians and speech-makers have to say. And why would anyone? For unless you count "read my lips, no new taxes" as inspired oratory, there has not been one major political sp'eech in the past twenty years that would hold its own in a history textbook. Nor is there one that would make the cut in one of those "I have a dream"/"Ask not what your country can do for you" sound bite montages of the l960's heard on "classic rock" radio stations . . The memorable political speech seems today to be nothing more than an echo of another t ime : What is missing is speech that has power and sweep, speech that resounds with the issues and events of today and- links them to the great events in history. Where are the speeches that define

Anyone wi s h i ng to take b o th New York and e ither New Je Fs ey or Connecticu t will now have to w ait at least until February, 1 9 94 t o do so. The s e people will h a ve to take the mu l t i-state exam ag a in, making the to t a l number of t e sting days fo u r instead of th Fe e. Many may n o t get the opport un ity to take t h e add itional e x a m, h owever, becau se th ey will h a ve begun ne w jo bs by t he n, a nd employers may not be willin g to give time off t o these indi v iid ua ls to prepare. Students ch o o se to take the t wo bar exams at on ce because the N ew York exam is m uch more comp reh ensive exa m t han either N e w J ersey's or Connecticut's ; there ar,e only a few areas of law whic h N ew J ersey and Connecticut emp ha s iz,e that New Yor k do es l).Ot. It w ill be much more di ffi cult to take N ew Jersey or Connecticut the follow ing

who we are as a people, that look to our shared destiny, and question the relationship between the individual and the common good? The missing quality has become so scarce that even the word eloquence seems antiquated. Contemporary political speech is not only divisive, but dispiriting. It is base in tone, and its lack of historical perspective an_d v i sion has robbed public service of its dignity, its grandeur and, yes, its occasional majesty . Perhaps most importantly , what has been lost is this: gre at political oratory's tendency to elevate and ennoble humankind. President Bush's acceptance speech at the Republican National Convention was notable for its want of any appeal to the common good or the higher self. In other words, it was quintessential modern-day campaign rhetoric . · When Bill Clinton took the podium here in New York, he drew the greatest applause when preaching unity to a fractu red nation. "There is no 'them', only an 'us'," he said. On the who le, though, his speech was

overly personal, and at times verged on the corny. This impoverishment of polit ical rhetoric has, not surprisingly, fil tered down into the realm of pro test politics, where it manifests itself in a guise even uglier and more uninspiring . The -_speeches made at last spring's abort ion-rights march in Washington bri ng to mind some of the worst exam ples of the lack of style in today' s rhetoric . Thoug h the crowd was huge, and their de votion to the cause fervent,_the relentless bombardment from the sel frighteous speakers left many listeners queasy, not to say unsatisfied . Only one speaker, a Latin Ameri can clergyman, conveyed the wrenching mora l dile mma that abortio n poses for many . His quiet, understated delivery contrasted sharpl y with those of others who stepp ed up to the micropho ne. Have Ameri cans simply lost the ability of composing tru l y moving, though tfu l addresses? Are we content merel y

See QUIPS, page 5

Constructio n, Ha lted, Remains Dis c o vere.d . . . . 6

Revisiting Pennoyer v. N eff . .

. . .6

In You r Ea r . . . . .

. . .1

-~F&D_ ________,; ,.________;,_,._____ _-,----_ '; Fro~m the Editors: N-Why-LS?

Letter to the Editor Beer Makes a Meal in Itself

''So where do you go to school?" "New York Law." "Oh, NYU?" "No, not NYU. New York Law School." 11

Who among ·us hasn't had this conversation? The confusion and embarrassment that this exchange invariably brings with it is reason enough to urge a name change for NYLS. But there's a better reason: a prominent alumnus and Supreme Court justice whose name the school could take. . John Marshall Harlan served with distinction as an Associate Justice of the United States Supreme Court for sixteen years, and wrote some of the most powerful and analytically sound opinions for the Court during that time. Even those who disagree with his judicial philosophy recogniz_e Justice Harlan's contribution and the value of the conservative counterweight his voice brought to the Court during its most liberal years. But Justice Harlan was more than a legal scholar. He defended our form of government by vigilantly monitoring the balance between state and federal powers . And, legally blind from 1964 on, he exhibited extraordinary courage by remaining on the Court until 1971, writing with the same acuity he had always demonstrated. Perhaps most important, he was respected by his colleagues and those who worked with_ him · on the Court. In sum, Justice Harlan represents the finest -that New York Law School can produce. In addition to honoring a great man, changing the school's name would help NYLS establish an identity. The public often ·mistakes NYLS for NYU, and with the arrival of CUNY Law the situation only got worse: CUNY's official name is City University of New York Law ,School. Now the names of two schools will be confused with ours. These days the school is looking good, both academically and physically. We have a good faculty, a library most_ law students would envy, a varied selection of course offenngs, and a new administration which promises to bring the school some well-deserved recognition. Renovations to the physical plant will make the school a pleasant place to _study and ~o socialize, and 'will impress visitors as well. All m all , there s lots new at NYLS. Why not a new name? The John Marshall Harlan School of Law sounds good to us.

Beer is not to be transformed into a quaint beverage quaffed by the middle-to-upper-income bunch with a fondness for blues and blue jeans, or into a sop to their yearn~ ing for a connection with the working class. The Burpmeister's ridiculous assertion in the April issue of Frolic and Detour that various beers may complement various courses in a meal, or titillate the palate, is absurd. Beer is not wine! It is properly _h eavy, substantial and filling -food in its own right. Beer is to be drunk in quan- . tity, not to become drunk, but to become rosy, loquacious, social, ruminative -- in short, to become a decent human being . Although food may be an adjunct to beer's consumption, it is never a full partner. Properly taken, be~r expands vistas, uplifts souls and often fuels a tolerance among its drinkers for both ideas and each other. It is a common, democratic drink. But beer is beer, especially in North America. Certainly the commercial American product, made mostly of water, some barley and hops, preservatives, including a large dose of formal-

dehyde, is poured into the consumer through the same type of marketing that so successfully sells GM autt>mobiles : drink the stuff and you will get the blonde. As in any free-market economy, however, caveat emptor. . The seasoned drinker will look to the Canadian brews: Indian Pale Ale has long been a favor ite, Moosehead of Maritime fame is now getting far more exposure, and the favorite Lethbridge Pil retains its sentimental position . The products of Labatts and Molson need be written off as too common--like sit-corns. A proper beer will reflect its culture and clime. Singha of Thailand is exemplary in its ability to cut the Bangkok smog, and Red Stripe of Jamaica offers its mix of fluid and malt at just the right degree to complement the sun on the beach. That being said, beer does remain beer and should not be overly elevated. Its position is universal and stable. Much like the sun that always rises and sets, it will be with us always, happily and amen. -Name and Address Withheld

O!)IIS WDIUl1 STREET Good Food and Cheap Beer ($1.00 drafts) Breakfast & Lunch

Served 6:00 am- 4:30 pm Catering Any Amount on Premises for All Occasions Friday Nights DJ. Music from 5:00 pm until ... 83 Worth Street New York, NY 10013 (212) 962-;0834

Frolic & Detour Editors-in-chief

' Ni'ck Caputo Gerard Mackey Josh Porter Mike Cifelli Ste ve Simpson

Art Editor Associate Editor

Writers

Steven Antico, Gary Axisa, . Nathaniel Barber, Nick Caputo, Mike Cifelli, Rich Del Vacchio, John Dillon, Jason Glickman, Ann Kenny, Gerard Mackey, Junling Ma, Charles Maslin, Kevin McCoy, Samuel Mizrahi, Al Myers, Christine O'Connor, Josh Porter, Paul Schiavone, Dave Sigmund, Steve "Simpson Articles herein_reflect the views of the individual writers and not those of Frolic & Detour. \

Byron Johnson, a die-hard Steelers fan, spends Saturdays working in his garden .

F&DI• - - - - - - - - - -

Service with

a Smile

by Christine O'Connor

If you're standing at the registrar's counter some day and you hear the strains of "Swing Low, Sweet Chariot" drifting around the corner, it won't be Dean Wellington singing ·on his way to work. Dorothy Spencer, the school's cashier, is a

have occasion to deal with Bob and Dorothy know that a friendly, personal greeting awaits them each time they find themselves at the Accounting window . "We treat students the way we want to be treated," Dorothy explains.

toons to literary magazines and other publications, including the Village Voice . His work has also appeared in the law school's public service announcements. Dorothy hails from Alabama, where she began singing at age seven. In

"Students are not here to interrupt our function, they are our function. "

soprano and she's probably around the corner making sure students get their financial aid checks. She and Bob Cook staff the Accounting Office, where the motto is evidently, "Service with a Smile." "Students are not here to interrupt our function," Bob says, "they are our function." Bob and Dorothy are eager to help students and they truly enjoy their work; indeed students who

Maybe it's a touch of Southern hospitality that one senses from these two transplants . Bob is from Jacksonville, Fla., which he describes as "a cultural wasteland." He came to New York hoping to make a living as an artist, but reality demanded that he earn a regular paycheck, so he took the job as the school's accountant. He still does drawings, · though, and periodically sells his car-

her free time, Dorothy can be found up in the Bronx in the choir loft of the Friendly Baptist Church, or in the DJ's booth at WWDJ where she sometimes spins gospel tunes. Dorothy is always glad to belt out a song or two, and she lends her talents to the school from time to time by singing at staff events and luncheons. So the next time you're grumbling about some bureaucratic nightmare, like the ones Dean Farrago used to visit on us every semes~er, thank your lucky stars that when you go to pick up your badly needed financial aid 1 checks, you meet two talented,. pleasant people who are happy to help you out.

How Does New York Law School Fare? Percentage of students graduating with a job at various New York schools.

• ,NYLS figure Is based on an informal poll. The remaining statistics were provided by personnel from each school.

r.------------------------,

"A HAPPENING PLACE! "

BUY ANY DRINK ... GET THE SECOND FREE! (YOU MUST SURRENDER THIS CARD)

57 MURRAY STREET, N.Y.C. • 212-791-2348

Coupon good until the end of exams.

L------------------------J

l \~--"

LOUNGE, from page 1 vide each organization with its own office, but the idea was scrapped in favor of one that allots space according to the differing needs of each organization. As a result, a series of large and small office spaces were constructed and assigned according to projected use. Plans call for using one room as a computer room, with Lexis and Westlaw terminals, as well as personal computers, available to students. The only unsolved problem involves student lockers. While the school hopes to be able to provide each student with a locker, there is not enough room in the basement to accommodate everyone. More lockers are on order, and when they arrive they will be placed in any available basement space. But once the ·overall project is completed, some of these lockers will be moved to other parts of the building, so that all the space in the basement can be used as originally planned. Next on the construction agenda is the first floor of "C" building . Work will begin before Thanksgiving and last about 3 months. Given normal construction delays, students can expect this area to be ready for use sometime in late February. In the meantime, the first floor of "C" building will be off-limits and although the elevator will still operate, it will not stop on the first floor. When the construction is completed, the cafeteria will take up the rear of the first floor of "C" building. A few special features planned for this area include skylights and a wooden floor. Parts of both the foocJ service and the dining areas will be located beneath the skylights. In addition, the service area will be larger and easier to navigate than the old one, making the cafeteria much more adequate to student needs. The front of the floor will house a small lounge, and the staircase located across from the elevator will be widened for more comfortable movement between floors . The parking lot is also targeted for refurbishing. Plans are still in development, but they call for making better use of the space, and installing an automatic security system, including an automatic gate.

•

F&D

.. r

.rur THIE KNOWJLlEDGlE Of ILAW IlN ORDER .

Study with Pieper ... and pass.

Pieper New York-Multistate Bar Review, Ltd. . · 90 Willis Ave., Mineola, New York 11501 '

Telephone: ·1-800-635-6569 or (516) 747--4311 PIEPER REPS. :

Marc Lewis, Cindy P :cessman

Cheryl -Y7,illiams

Edward Miller ~ 1990

- - - - - - F&D

QUIPS, from page 1

Birth of the Cool Kenny G. Quartet

(

of inspiring oratory and perspicacious vision in public affairs, there has been a commensurate rise in the coarseness and abusiveness of everyday speech. Perhaps the general public have been so bludgeoned by the torrent of inanity and brutality spouting forth from the fountains of popular culture that they wouldn't recognize great political speech if it came out of their televisions and slapped the channel clickers out of their hands . Yet we all instinctively recognize greatness, no matter what the endeavor, football or fiction. There is a deep-seated yearning in the human heart for something that stirs the higher self, be it a beautiful mountain vista or the ocean's limitless expanse. Great leaders throughout the ages have always spoken to this yearning. But most of the speech heard today, voluminous as it is, goes straight back where it belongs: into the ozone.

to shout at one another? Compare the rhetoric at virtually any recent demonstration with that of the first large 'anti-war protest in Washington in 1965. One of the speakers was a veteran of the civil rights struggles in the South, and he told the crowd, "Listen and think. Don't clap please ... Don't use Mississippi as a moral lightni_ng rod . Use it as a looking glass . Look into it and see what it tells you about all of America." "Listen and think." There are no more moral crusades like the civil rights movement, but there is a growing crisis of disunity in this country that demands a language of understanding, reflection and reconciliation. Which is why this Presidential election was so important. More than any other position, the presidency is symbolic. The president's words and attitudes set the tone for the entire nation . It is perhaps not surprising, then, that in the absence

by Josh Porter Now that I have captured the attention of all the musicologists who like to inhale the frozen New Age wind that whistles out of Kenny G.'s horn, pl_ease stay tuned for a moment. There's a new, twenty-eight year-old jazz talent whose guitar riffs--while challenging to the ear--can be easily digested by the layman searching for a way to break the chains of Windham Hill. His name is Russell Malone, and he has packed his self-titled first release with a variety of styles: gospel, blues, and be-bop. Malone's mastery of so many techniques at such a young age is astonishing; the album shifts into a new gear with every track. It begins with a classic be-bop piece, "Wives and Lovers," then slows down for the soft hues of "Invisible Colors." The third track features Malone's racy picking in "When I Take My Sugar To Tea," which calls to mind the sounds of Django Reinhardt. Malone does not create this variety on his own. His assortment of tunes is enriched by veteran bassist Milt Hinton, who has performed with many famous jazz guitarists, including Charlie Christian and Wes · Montgomery. Hinton plays in a duet with Malone on "St. Louis Blues" and in a trio format on the gospel-based track, "Precious Lord ." And for you Kenny G. fans still with me, one song features a popular white musician, Harry Connick, Jr., who plays piano on "I Don't Know Enough About You." So hurry over to J & R Music World and get yourself a copy of this album while you still can.

r•

Professor B.J. George pushes his way into an already crowded elevator, while a student "searches" the profs coat pocket.

Studyin2 the Law: "Legal studies . . . sharpen, indeed, but like a grinding stone narrow whilst they sharpen." -Samuel T. Coleridge

BAR, from page ' 1

"Pursue the study of the law, rather than the .gain of it; pursue the gain of it enough to keep out of the briers, but give your main attention to the study of it. The next is, not to marry early; for an early marriage will obstruct your improvement; and in the next place, it will involve you in expense. Another thing is, not to keep much company, for the application of a man who aims to be a lawyer must be incessant; his attention to his books must be constant, which is inconsistent with keeping much company ." -Jeremiah Gridley (Advice given to John Adams in 17 5,8)

February because it entails relearning much of the material learned for the New York exam. The most troubling part of the change in dates is that individuals who have yet to find a job by July may have difficulty deciding what bar exam to take. If,

FANCY BAKERY & DELI ON THOMAS

'ANCY DELI" X

THOMAS ST

Ji □ i· WORTH ST

INYLS

r---- ~- - - - - ·-----, " FANCY Deli & Bakery

I ,I Present this coupon, and receive I a free 16 oz. Fountain Soda with the _ I I purchase of any lunch entrec I (a S .90 value) I rolic& Ddovr

I I

Bakery on Premises Bagels Croissants Eggs Muffins Cakes for All Occasions Pies Deli Sandwiches Fresh_Turkey Hot Food 1 Pizza Italian Specialties A Host of Other Items Daily

Free Delivery to NYLS

58 Thomas Street (one block south, under yellow awning) New York, NY 10013 (212) 571-6710, 11, 12

for example, one takes the New Jersey bar, it may be difficult getting a job with a New York employer. Likewise, an individual who takes the New York bar may be at a disadvantage in New Jersey and Connecticut. The bar examiners' decision to change the date makes it that much more difficult to find a job under condjtions that can already be described as gloomy. At this point, the students who want to take both the New York and either the Connecticut or New Jersey bars should write the bar examiners to express their discontent with the rescheduling of the New York exam. For anyone who does not have the time to write an individual letter to the bar examiners, one may pick up a prepared letter in the new student lounge, sign it and mail it to:: James Fuller Executive Secretary State Board of Law Examiners 7 Executive Center Place Albany, New York 12203 There must be a better solution to this dilemma. Please write to the bar and offer your opinion.

•

•~ ·F&D

-------=------------

Construction Halted -as Digging Unearths Deans by J.P. Ashe and Gerry Graves Construction on the New York Law School Student C_e nter came to an abrupt halt last month when an Acme Construction Company employee,

-z., -

'il,.,.1.,~

....

INCMl'i••hElltf" ~OMT&IJC.1'l.,,i

•< .,...'i"'.,I,

sa:: )

'> >

~~ >

~~~> MIQ-1-Ai"l..

Mt" 'T\11,,.,., H1U'

" ~----Tll<, ~.(U.

!lAasot-l

'?OST NO 'BILLS

o~ !!'- .R.D.

Rocky D' Annunzio, discovered human remains in front of the school, beneath the Worth Street sidewalk. ~ichaeologists called in by the school have determined that the site was a

cemet~ry for former NYLS deans.

source close to Dean Wellington said.

"When my shovel hit the bones," D' Annunzio told Frolic & Detour, "I thought one of the crew had thrown Kentucky Fried leftovers in the pit. But when I looked closer," he · adde~, "I saw a cheap toupee atop a rotting skull and I knew it weren't no chicken I was looking at." The schools administration reacted with characteristic sang-froid. "Deans, Schmeans! ! Let's just get on with the dig," one

In the meantime, a local group of radical historians, New Yorkers for the Preservation of Harebrained Legal Theories, has been protesting the continued construction. "This is a historically important site," said Shirley Humphreys, the group's president. "New York Law School makes no contribution to this city. We should close the damn school and open a museum. At least that way, someone would benefit." In spite of the protests, work resumed the week following the gruesome find, after all the human re-

mains had been exhumed and placed safely in a student locker. · The last body removed was evidently interred only last spring, and was remarkable for its diminutive size. "First I thought it was a little kid, the skull was so tiny," said Vinny Goldblum, an Acme worker. "There wasn't much thinking going on in that head, I'll tell you that." Today the sidewalk area is once again intact. A new layer of concrete has been poured, leaving no trace of what was once hallowed ground. Yet some devout soul has respectfully scrawled R.I.P into the freshly laid concrete.

PRISONER SOUGHT Summer City, Nov. 23 -- Prison officials at the Cramer Correctional Facility announced today that an inmate escaped last night by sawing through the bars of his cell window with a nail file. The inmate, Stanley Carlos, was serving a 5-year sentence for fraud and was due to be released early next year. Officials believe Irma Able, the prison· warden's secretary, furnished Carlos with the file, and that the two are in hiding together. When reached for comment, warden D!lvid Scott said, "I always suspected that Irma had the hots for that slightly built immigrant. When we get them, it'll be like two dogs barking up a bees• nest." \

COURT OF LAST RETORT by Al Myers Article I.

Little-known dispositions of cases.

Garratt v. Dailey--On remand _to the trial court, the jury agreed that Brian did have the requisite intent to perform a battery. They awarded damages of $350,000 to Mrs. Garratt, "to teach that little punk a lesson." Defense coun~el protested that even if Brian• s paper route was attached for the rest of his minority he could never pay the full amount. A year later, the state supreme court ruled that little Brian did have the requisite rear end to be "roundly spanked till he coughed up quarters like a slot machine ."

ship at Harvard, to editor-in-chief of the Harvard Corporate Law Review, · thence on to a federal judgeship with the District Court of Hawaii .

Hawkins v . McGee--The trial court reversed itself and ~warded Hawkins the value of a new hand as promised, in this case a straight flush, jack high. McGee's pair of eights was not enough to prev·ent foreclosute on his prized titanium forceps, cash value $125 .

Judge Brewmeister. Well, Senator, that's an interesting question, becausewell, having given the matter much earnest consideration in the days and weeks since learning of my appointment, it's really very clear to me that, notwithstanding your genuine interest-and I'm sure it's very sincere, Senator-notwithstanding that genuine interest, a just and temperate course for me, here, might be to quell the nascent forces of partisanship before us on this momentous occasion and forbear from that level of specificity which might, in another nominee or another nexus in our history, render whatev er future impartiality I, as a member of the High Court, might have, render that impartiality compromised.

Pennoyer v. Neff--Five years passed before the Oregon courts were satisfied that it understood the Supreme Court's opinion. By that time, Mitchell was Oregon Chief Justice, and -Pennoyer was his nonresident landlord. :Attachment follow~d rent hike 16 or l 7 times before the two agreed to meet in the public pasture and "settle this like men ." But Pennoyer peremptorily decked Mitchell, ' Mitchell sued for battery, and eventually the Oregon Supreme Court, Chief Justice Neff presiding, ruled that it had no jurisdiction over the suit.

(From minutes of the confir~ation hearings) Senator T'Omato, New York. Judge Brewmeister, how would you describe your qualifications to sit on the Supreme Court?

Senator T'Omato. Judge Brewmeister.

Lake River v. Carborundum--Lake River Corp . mysteriously dropped the suit and relocated to Medellin, . Colombia. Carborundum never saw its 125 bags of "Ferro-Carbo" again. Article II. Sports extra. The New York Law School football team pummeled NYU yesterday, 38-14. The Writs of Certiorari are now 2-0 , while the Rams fall to 0-2. In other news, NYLS now offers intramural racquetball (school officials having denied motions to squash) . If interested, file a brief with Dean Wellington. Article III . September 14, 2016. The Senate today confirmed the appointment of Robert T . Brewmeister as an associate justice o_f the Supreme Court, overcoming objections from some Senators that his views were vague . Brewmeister, 43, is a billionaire real estate developer who rose from the abject po~erty of his native Montana to a hockey scholar-

Another mint, Judge? Please.

Article IV. Readers' poll. Here• s your chance to declare every week an Occasional Weekly Week . Simply answer these questions and return your questionnaire to Publius . (If you want to preserve your issue of Frolic & Detour, merely photocopy this form onto 30-pound bonded ivory-laid resume paper before submitting.) I

Is this the funniest thing you've ever read? If not, what is? I would like a 156-week subscription. Enclosed is my check for $3 12. (Make checks payable to Frolic & Detour. Author assumes no responsibility for subscription fulfillment.) . Thanks, but I don't want to subscribe at this time. Please accept my voluntary donation of $312. (Make checks payable to Author. Author represents that he will cash promptly.)

yOU

r ear

The Executive Branch: Robbing Democracy of Its Legitimacy by Nathaniel Barber The hallmark of the Reagan-Bush years has been contempt for the law. In his August 10th New York Times column, Anthony Lewis described the general contours of that contempt when he cited the making of policy, a legislative function under the Constitution, by an unelected and unaccountable organ of the executive branch: the President's Council on Competitiveness. The Council improperly meddles in the policy-making that Congress properly delegates to agencies, a clear violation of the constitutional mandate that the government's legislative and executive powers remain separate. Moreover, the Council's secrecy and unaccountability make it more than unconstitutional; they make it illegitimate. In creating the Council, Bush continued Reagan's systematic effort of appropriating to the executive ' branch powers that it does not legitimately have. Dukeminier and Johanson have written, "[T]o a large extent public acceptance of law rests upon a belief that legal institutions . . . are legitimate, and legitimacy cannot exist unless decisions are reasoned ." In order to accept government authority, a society must at least be able to examine the government's reasoning. Justices O'Connor, Kennedy and Souter explicitly recognized the fundamental need for legitimacy in Planned Parenthood of Southeastern Pennsylvania v. Casey. "[A] decision without principled justification would be no judicial act at all," they observed. The Court must "speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and politjcal pressures." Without an explicit and public statement of its reasoning the Court loses its legitimacy; it loses "the people's acceptance of the Judiciary as fit to determine what the nation's law means and declare what it demands." The legitimacy of Congress and of the executive branch depend as well on substance and the people's perception of those bodies as fit to write and execute the nation's laws. Although Congress can, to some extent, "buy support for its decisions by spending money," and the executive branch can "coerce obedience to its decrees," legitimacy ultimately has its roots in democratic principles of openness and accountability. These principles require that decisions be reasoned and that the reasoning be made explicit and public . It is significant that in championing legitimate government the Justices

leave a record of their reasoning - a written decision. The Council on Competitiveness, in contrast, produces no record of its proceedings: its hearings are held in secret. No one is able to review the Council's reasons for the policies it promotes. And the Council repeatedly shapes national policy, most recently by rewriting the EPA regulations which should have implemented the 1990 amendments to the Clean Air Act. The same day it reported the Planned Parenthood decision, the Times profiled the executive director of the Council, David McIntosh. Mr. McIntosh came to politics because he was inspired by a speech he heard Dan Quayle deliver. "I remember him focusing on the need to make Government more accountable to the people," Mr. McIntosh said, "and not have unelected representatives here making decisions for people back in Indiana." The people in lndiana, and everywhere else, should note that no one elected Mr. McIntosh, yet he is credited with rewriting provisions of both the Endangered Species Act and the Clean Water Act, an irony that seems lost on him. This year, there is a widespread perception that the political branches of government are not fit to govern. George Will and Joseph Califano point respectively to perpetual incumbency and the influence of PACs as the underlying cause of Congressional unfitness, and they see term limits and campaign finance reform as salutary. Justice Blackmun, in Planned ParenthooÂˇd, dispelled any assumption that the judicial branch is certain to remain fit to define the meaning and demands of the law. This writer's view is no less sweeping, but differs because it focuses on the executive branch. The Reagan and Bush administrations have made executive power illegitimate through their contempt for the law, the full scope of which is seen in their arrogation of legislative and judiciar power through such instruments as the Council and the ideological appointments to the federal bench. The growing evidence of a Bush administration cover-up of its policy towards Iraq only highlights that illegitimacy and contempt for the law. The power, secrecy and unaccountability of the Council on Competitiveness is truly frightening. In these characteristics, the Council bears a striking resemblance to the most undemocratic and illegitimate organs of the former Soviet Union. If, in carrying out our domestic affairs we assume the enemy's identity, we fail to win the Cold War and to establish a new world order.

Use Your Feet, Not Your Fingers by Âˇ Gerard Mackey A hundred and fifty years ago, when Elisha Graves Otis was working in a factory in Yonkers trying to perfect his invention, he never imagined that one day it would be so popular. Indeed, from the looks of the lines of people waiting in the lobby at 57 Worth Street, one would imagine that Otis had just invented the elevator, and that the hordes shuffling about in the entryway were waiting for a first ride on his newfangled contraption. But, no -- that doesn't explain the presence of these milling masses. These. young adults have seen plenty of elevators in their time ; they're waiting because they are extraordinarily lazy. Putting aside the toll that obesity and heart disease take in this country, and the good a little exercise might do the~e well-fed twentysomethings, their refusal to walk up a flight or two of stairs is causing incredible congestion Sometimes it seems as if very little that goes on around NYLS is done with any foresight. The major construction project now underway will linger well into the winter months, as memories of a dust- and noise-free environment fade with the sun's warmth. Although we were urgently exhorted to empty our lockers last spring so construction could begin right away, the sounds of the first jackhammer weren't heard until well into the summer. So this semester we are forced to make our way about school, squeezing past one another, cursing under our breath. As a consequence of this inopportune renova-

tion, what was always a difficult passage has become almost impossible. Construction has closed the other Worth Street entrances, so getting through the gilded doorway near the elevators now takes .the resolve of an elephant. The mass of students, faculty and staff milling about -makes this

Elisha Graves Otis, Patron Saint of NYLS. area as busy as, well, Grand Central Station. To make matters worse, every class seems to have been scheduled in "A" building; few classes are .held in C200, and B300 is always empty. Simultaneous class starting times only add to the intolerable crush.

But a major factor in the congestion is the unwillingness of most students to use the stairs. A good number of these would-be legal scholars stand about waiting for the elevator, getting in everyone else's way, only to ride from the ground floor to the third floor, a total of some 60 steps. The behavior of these wastrels has had a secondary effect as well: a frightening increase in compet_ition for elevator space. Students have been seen slipping down to the basement to board empty elevators, then riding up to the ground floor, beating out the waiting multitudes. This tactic, though ethically questionable, guarantees a ride with a minimum of delay. Those students not as bright will climb up to the second floor, hopeful of getting a ride sooner that if they had waited on line below . This maneuver is not as surefire as a trip to the basement, though , because when the elevator doors open on two, the car is often packed . Fortunately, one lazybones will often get off' here, leaving space for another one to get on Perhaps the quintessential indication of this slothfulness is using the elevators to travel DOWN a floor or two . This practice is surely indicative of a society in decline. So, the next time you 're watching the elevator indicator slowly work its way down from the ninth floor, your fingers itching to push a button, think about this: You can stand there blocking the way, or you can walk up a few stairs and burn off that pizza Bar/Bri bought you for lunch.

. r

SAR REVIEW

October 5, 1992

Stanley D. Chess President

John E. Holt-Harris, Esq. State Board of Law Examiners c/o DeGraff, Foy, Holt-Harris & Mealey 90 State Street . Albany, N.Y. 12207

Dear Mr. Holt-Harris: -Âˇ Last summer about 2,500 of the 7,400 persons who sat for the New York Bar Examination sat also for the bar exam in a second state. Of these 2,500 persons, the vast majority sat for the exams in New Jersey, Connecticut, or Massachusetts. By scheduling the summer 1993 exam on Wednesday and Thursday, the board is inconveniencing at least 2,500 people and forcing them to take their second bar exams the following winter or another time. This will cost hundreds of thousands of dollars in lost earning power and inefficient use of time. A solution that would work to everyone's benefit would be to hold the New York Bar Examination on Monday and Wednesday. The incremental cost of breakingÂˇ down and setting up 7,400 chairs cannot approach the cost to New York's candidates if they are denied the opportunity to take a second exam in New Jersey, Connecticut, or Massachusetts. We estimate that the cost of breaking down and setting up the 7,~00 chairs at about $10,000. The cost in Buffalo and Albany should be far less than the cost in Manhattan . .To facilitate your decision, BAR/BRI is willing to pay the total ~ost of $10,000. I hope you will reconsider your decision.

PS: More than 2,000 third-year law students have already signed a petition requesting the change of the exam to Monday and Wednesday. If all 7,400 candidates could somehow be contacted, my g~ess is that more than 7,000 would request the Monday-Wednesday scheduling. cc: Members, New York State Board of Law Examiners Deans, New York ~tate law schools