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Results of the Fall 1992 FAX POLLWe received 35 responses 10 our FAX POLL from IheFall1ggZ issue. Below are Ihe resulls, figured bypercenlage. Some percenlages will nol add 10 100%as more than one answer or no answer was given.

1. Do you think the Model Rules of ProfessionalConduct are strict enough?

69% yes 31% no

The Arkansas Lawyer

__sometimes

11. Do you 'value bill" now?

__yes no

__ yes __ no

___ no

__ yes __ no

9. Do you feel legal Aid services shouldbe exempt from "loser pays" rules?

__yes

__ yes __ no

10. Do you Ihink Value Billing would bea good step loward Improving Ihe justicesystem In the United Slates?

12. Do you Ihlnk Ihe national or localgovernmenl should be able to regulatebilling· be II value or hourly?

8. II you answered yes fo either o. fheprevious Iwo quesllons, do you .eel"loser pays" should be limited 10litigation Involving privately fundedindividuals facing Institutions? (I.e., JoeSlip&fall vs. Melronationallnsurance)

7. Do you think Individual slates shouldImplement English Rule?

__yes no

__ yes no

2. Do you think the use 01 English Rulewould discourage frivolous orquestionable litigation?

__ yes no

3. Do you Ihink use of contingency leesdiscourages frivolous or questionableIiligalion?

Even wilh Ihe ousting of Presidenl Bushand his "Council on Competitiveness"Iheissues brought aboul by Ihe group slilldemand answers from Ihe legalprofession. FollowIng are questions onyour views concerning Engtish Rule andValue Billing, bolh lopics currenlly beingdiscussed on Ihe national and locallevefs. Please feel free 10 send inadditional comments.

4. Do you Ihlnk than Ihe use o. EnglishRule would inhibit those wllhmeritorious claims from seekingcompensalion?

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

6. Do you think "lawyer advertising is well monitored?9% yes 89% no

2. Do you think enough elhlcs classes are laughl InArkansas law schools?

23% yes 74% noCommenls included: "We were read la, Ihal's it"

8. Do you think the organized bar should be involved Inhelping the image d' aflorneys In Arkansas?

91% yes 9% no

9. Do you think the Supreme Court should be involvedIn helping the image of aflorneys in Arkansas?

63% yes 34% no

5. Do you think "lawyer advertising" helps or hurts Iheimage o' Ihe prolesslon?

3% helps 80% hurts 17% no effectCommenls included: "Encourages ambulance chasingimage" "I have never seen an allorney advertise onlelevision in a manner IIhoughl had a positive ellecl onIhe legal profession"

7. Do you think "lawyer advertising should berestricled more?

86% yes 14% no

4. Do you advertise your professional services In IheYellow Pages?

34% yes 66% no

3. Do you Ihink punishment lor violations ollhe ModelRules is fair?

63% yes 34% no

__ yes __ no

__ yes no

6. Do you think English Rule should beImplemented in Ihe United Slafes on analional basis?

5. Do you think the Implemenlatlon d'English Rule would Increase fhe numbero. early sefllements?

__yes __ no

__yes no

__yes __ no

13. Do you think Ihe American Barshould lake a stand on value billing?

14. Do you Ihlnk Ihe Arkansas Barshould lake a stand on value billing?

___ no__ yes

10. Do you de'end the legal pro'esslon when talkingwith non-lawyers?

63% yes 14% no 23% sometimesCommenls included: "I normally don'I even lell newacquainlances Ihal I am an allorney; II's tooembarrassing"

11. Do you Ihink a public service campaign would helpthe image of lawyers in Arkansas?

66% yes 34% noCommenls included: "/I should showcase Pro Bonolawyers" "Unlil allorneys do beller, nolhing will helpIhe image of Ihe profession"

FAX this completed sheet to:The Arkansas Lawyer at 375-4901or mail to 400 W. Markham, Little Rock, Arkansas 72201

LETTER FROM THE EDITOR

11mfrom ArkansasBy Paige Beavers Markman

On a warm October afternoon, I sat down on the plaza steps in front of the Arkansas BarCenter and watched as Bill Clinton, Governor of Arkansas announced that he was going to runfor President of the United States, and I've got to admit, I didn't think he had a chance. Why? otbecause I didn't know that the man had the intelligence, the ambition and the vision. Everyone inArkansas knows that he is a consummate politician. I'm ashamed to admit that as much as I lovethe state of Arkansas, as much as this small state has given me, I didn't believe the Americanpeople would believe in any man or woman from Arkansas enough to elect them to run the entirecountry. Yes, the old self-imposed inferiority complex that plagues so many Arkansans had atight grip on me.

I sat in my hotel room in Minneapolis in the early morning in January and watched both thenews and USA Today proclaiming that the Gennifer Flowers scandal would be the end ofClinton's campaign for the White House. I was at a meeting of Legal Editors and that morning aswe introduced ourselves and our publications, I stood up and said "I'm Paige Markman fromArkansas, and no, I have not been having an affair with Bill Clinton for 12 years." The groupbroke into laughter and afterward, I got my first taste of what being from Arkansas this yearmeant. From that moment on, I found that not only would I be asked questions about my stateand its leader, I was expected to give clear, intelligent answers about Clinton's policies, his recordand my perception of how he had run our government.

So I read and I listened. And as I traveled around the country a few times after that, Ianswered questions. I developed a new sense of pride in Arkansas as the election went on andClinton continued to beat the odds and the press. And even though I just wanted to tell peoplewhat they desperately wanted to hear, I think I told the truth to the best of my knowledge - BillClinton is not perfect, but he has helped the state of Arkansas, and I believe he can help thecountry. I refused to discuss what little I knew about his personal life. After a particularlyirritating flight to New York (6 months pregnant), I snapped at a hotel clerk who asked me aboutClinton's supposed affair with Flowers - "If Bill Clinton can get this country out of the mess its in,I don't really care if he does the wild thing with Madonna in the middle of Texas Stadium andne.ither should you!" Carmine, the hotel clerk, gave me my key and said goodbye.

As the results started to come in on election night my husband and I prepared to go to a watchparty. By 7:10, Peter Jennings was projecting several states for Clinton and none for Bush. Myhusband looked at me and said "It's over already, why are we even going to a watch party?" Iwas as shocked as he was. I had thought Clinton would win, but I didn't think it would be thatfast! And that night, as I watched the political announcers give the Presidency to the Governor ofArkansas and the people swarm over downtown Little Rock, I remembered my skepticism at thebeginning, and I was ashamed. But this time, there was no shame in being from this wonderfulsmall state, only the feeling that I had let myself and my state down by not believing in us. Isupported Bill Clinton in this election, but I admit I haven't supported him in the past. So now,as everyone tries to jump on the Clinton bandwagon and head for Washington D. C. - I think I'lljust sit back and enjoy the scenery. Now I believe, as does the entire country, that Arkansas ishappening - and more importantly to me - it's home.

4 ARKANSAS LAWYER JANUARY 1993

VOLUME 27, NUMBER 1

PUBUSHERArkamas Bar Association

EDITOR & ART DIRECTORPaig~ Btav~rsMarkmanDir~ctorofPRiMark~ting

ARKANSAS BAR ASSOCIATION400 W. Markham

Little Rock, Arkansas 72201

OFFICERSPresident

John P. GillPresidenc-Elect

E. Lamar Pettuslmmediate Past President

Jam.. H. McKeJWeSecretary -Treasurer

Rodney E. SlaterExecutive Council Chair

Rosalind M. MouserExecutive DirectorWilliam A. Martin

Assin:l.flt Executive DirectorJuwth Gray

EXECUTIVE COUNCILJoe Benson

Sanford BeshearWilliam Clay Brazil

Thomas M. CarpenterMichael H. Crawford

Boyce R. DavisVincent Foster. Jr.Stephen A. GeigleDave W. HarrodHenry C. Kinslow

Roben Lynn LoweryJerry c. Post

J. Thomas RayEddie H. Walker, Jr.

Roben E. Young

EX-OFFICIOJohn P. Gill

E. Lamar PettusJames H. McKenzie

Rodney E. SlaterRosalind M. MOllSt:T

Lucinda McDaniel

The Ark~nsa8 L"wyer (USPS 546-040) ispublished quarterly by the Arkansas BarAssociation. Second class po6tage paid at LittleRock, Arkansas. POSTMASTER: send addresschanges 10 The ArkJllnsu Lawyer, 400 WestMarkham. Little Rock, Arkansas 72201.Subscription price to non· members of theArkansas Bar Association $15.00 per year and tomembers $10.00 per year included in annual dues.Any opinion expressed herein is that of theauthor, and not necessarily that of the ArkansasBar Association or The Arkansas Lawyer.Contributions to The Arkansas Lawyer arewelcome and should be sent in two copies toEDITOR. Arkansas Lawyer, 400 West Markham..Little Rod, Arkansas 72201. All inquiriesregarding advertising should be sent to TheArkansas Lawyer at the above address.

In This Issue:4 Letter from the Editor By Paige Markman

7 Letters to the Editor

8 The Developing Law:The Arkansas Securities Act:AReborn Vehicle for Plaintiffs By Phillip A. Pesek

14 Disciplinary Actions

17 Book Reviews

19 The President's Message By John P. Gill

21 Law Practice Management By Jerry Schwartz

23 Legislation of the 102nd Congressand a Look Ahead at the 103rd By Paula Casey

28 COVER STORY:The Clintons Go To Washington By David R. Matthews

31 How to Determine the Best Interestsof the Child in Custody Litigation: By James A. Chaney &A Guide for Judges & Lawyers Lil/ian Chaney

38 In Memoriam

40 Young Lawyers Section Column By Lucinda McDaniel

41 Law Office Technology Review By Barry D. Bayer &Benjamin H. Cohen

43 Law, Literature & Laughter By Victor A. Fleming

46 Executive Director's Report By William A. Martin

48 Between Science &Sound Bites:The Future of Environmental Regulation By Steve A. Weaver

54 Arkansas Bar Association CLE Calendar

LETTERS TO THE EDITOR

Dear Ed itor:In response to your request in the

last issue of Tlte Arkansas Lawyer,to send us your ideas, I am enclosingliterature which, in part, answers thequestion as to why the legalprofession has a bad public image.The advertising and other publicpromotion of the idea of lawyer'sgreed is the source of making moneyfor a number of people andorganizations that stand to profit bydoing so. The enclosed is a goodexample. This is not to overlooknational advertising or politicalcampaigning that denigrates theprofession.

There are obviously situations forwhich very legitimate criticism anddisciplinary action are justified.However, situations are frequentlyexaggerated, inaccurately reportedor misinterpreted, and widelydisseminated by those who find itbeneficial to promote tha t view intheir own best interest.H. Murray ClaycombWarren, AIkansas

Editor's Note: The literature sent was abrochure from a company calledHomestead Publishing i/l Californiaadvertising "The Living Twst Kit" withpromotional materials blaming lawyersfor the high costs of probating wills.The brochure tells people that theyshould "avoid probate - so Ihal your

family can gel 10 keep Ihe assets thai arerighlfully Iheirs."

Dear Editor:My wife is an artist and asked me

about the picture on the cover of ourmost recent publication of TlteArkansas Lawyer, and [ brilliantly,said that it looked like an old-timeyselection of a jury in court presidedover by a circuit rider. She then askedme who did the artwork, and I saidthat I would find out. I lookedthrough the entire publication, andI'm sorry, you do not credit the artwork to anyone. I would appreciate itvery much if you could tell me whothe artist was on the from page of theissue, as I would like to pass it on tomy wife.R. L. WommackFayetteville, Arkansas

Editor's Nole: The credit wasinadvertenlly left oul of Ihe magazine, anerror for which we apologize. The arlworkis pari of a series offered free of charge 10Bar Associalions nalionwide called"West Arl & the Law," by WeslPublishing Company. The litle of Ihepiece is "Jury Duty" and was done byLivermore, California arlisl MurielDoggell for the 1985 edilion of Arl & IheLaw. The caption in Ihe calalogue reads,"Jury Duty depicts the ever-changingdaily galhering of faceless men and

-women, suit/maned by Ihe COllll1y clerks,wlto are waiting for courtroom calls.Cigarelles, coffee and reading molterhelp to pass Ihe lime, Some will becomepari of a Jury, others will return to thewailing room wondering why Ihey wereexcused. Only the set/ing remainsconslanl." We found this piece ofartwork parlicularly appropriale for theBatson arlicle by Thomas M. Carpenlercontained in thai issue of TheArkansas Lawyer.

Dear Editor:First let me say thanks for your

kind and (from my perspective)insightful review of my novel, INTHE MATTER OF BILLY K. [TlteArkansas Lawyer Magazine, Vol. 26,No.2, Apri119921

I was also gratified to find thereview in such a fine, professionallegal magazine, dealing, it seems,with important issues, such as theone you discuss involving theWomen & Minorities Committee. Ihope with the election of GovernorClinton more women and AfricanAmericans will share in theeconomic and political power, andthat the more subtle walls of racialdistrust will crumble. Among themany reasons I supported GovernorClinton is his sensitivity to the issuesyour letter addressed.David A, TateLoudonville, New York

The 1993 Mid-Year Meetingof the Arkansas Bar Association

January 14-15, 1993 . UALR School ofLaw, Little RockCall 375-3957 to Register NOW!

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trpm \dlL'n tht.' .1(lllll1 \\,1 .... t",fllll~ht \l(I'-..t lIt thl'se

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lltlll~ 1..1111,'1 and fun !i(i/I/l ,1J...,(l ,l~"'lplil'd Ihl' I1l'\\' LlIlIpflimiLltipn pt.'ripd rdnl.ldl\"l'1~'. rhi ..... hl)\\'l'\"l'r, W,b not

tlll'l'lld Llkr II1 Jl/l}l, SI'Il,llllr RIl'h,Hd Br~',lll, D-\:l'\·.,,11ld ~l'n,ltllr f)lI11dld Riq~ll" D-\lil-h., infrudul'L'd ,1 bill

III ClIllgTl' .... S kllllwn <h Ihl' Sl'l·uritll'.... Ilrlltl'dilln Act.Lndl'r tl1l' Securitil'.... Proll'di,nll :\d, lhl' I1l'\\' linlitation

pl'ril)d fl lr .l ~ 1(Hb) ,let illll WI Hlld bl' IWll \'t.,<lr ... fn Hl1 the

di ...co\"l'r~· ut facts .... urrounding till' \·iul.ltinn .lnd undef

IlU circunlstanCl'S TnPfl' th<ln ti\'l' ~'l'<lT"", In llddition,

l"l'rt.lin cl.linl .... which Wt.'ft.' di .... mi ....sl'd ,1'" ,1 result of

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

" l \. l't 11' .... U1.... ,111 1.1 ,1t' or l' \\'1 1 rl'g,lri.. 0 ,1Sl'dilln 12( I) t',HI"'l' uf action ,lnd L1tl'd th,1t Sl'ction12< I) liability l·,tend ... tu lllll' "\\'hp Ui..'l'l·...... lulh· ulit'itsthl' pllrch,1 .... l', Ilhlti\',1ted ,1t il',l ... t in p,lrt b\' ,1 dl' irl' tu.... l'n·l' hi p\\'n Iln,lnci,11 intl'fl' ... h llf thll"'l' pf thl'Sl'CUfitil' 11\\'lll'f," -I-Sh LS. ,1t h-l-7.

\\'hat thl' Suprellll' Cllurt dId npt "'.1\, In ')1I1fe/" i....\\'hat l'til'd thl' lIplnlUn \\'otIid h,1\'l' on ... tatl' UHlrtintl'rpret.1tions of " l'llers" undl'r ,lpplicabil' .... t,lte blul'sk~' 1.1\\·S, It \\,ptJid l'l'lll logiLll th,lt it sLlk l'OtHtS ,lfl'lppking to kdl'Lll intl'rprl'Lltion pf ... imiLH fcdl'r,ll.... t,ltUh' .... , it thl' fedl'r,ll intl'rprd,ltinn changl''''' till' St.1teintl'q1rl'L1til1n I11U .... t dl,lngl' ,11",,,1. :\t Il'a ... t t\\·p .... Lltl'

l"llllrh h,l\'l' ,1l'ClTtl'd thi ... inkrprd,lti(ln 1-, \\'hiil' (1l1('cpurt reil'ctl'd thl' I'lIlfl'r hnlding ,lnd ,lpplil'd thl'

" ... ub .... Llntial f,ldllr" te... t. 1'"It i... undl'.lr if :\rk.1n .... ,b l-plIrb will fpll11\\' the I'll/fa

casl' pr will in .... tl..1d cOlltinue tll ,lppl\' the ""ubstanti,llf,lctllr" tl·"1. Illl\n'\'l'r, thl' Ark,llls,l .... SUpfl'llll' (-ourt in(JII/'!- c' \\'"",11/.2'1; ..\rk. IhS. 7·+;" S.\\'.2d Ins (1'1,~~) ..... l'l'l111'd ttl jndic,ltl' thdt it \\lIu1d l"pand thl' dl'finitionpI ""'l'l1l'r" dlTl'nding Up(ln thl' f,ld .... in the p,Hticlll,lr(·,l"'e. In l)/I1l~'" \\'!llldll thl' cpurt tllund th.1t tht.'I11Pther pf ,1 sdil'r \\',1'" ,1n ,1gl'nt pf thl' sdil'r .111d thu ....li,lb1l' under thl' :\rk,ln .... ,l ... Sl'curitiL'S :\d bl'CtlUsl' ... lll'h,ld materiall}' ,lidl'd in the "',lle pf that particul.lr,,'eurit\'. Id., 7-l7 S.\\'.2d at 112. Although till' Illotlll'r, ,lS

,111 ,lgl'nt, fell within the special catl'gory of person~

liable under thl' :\rk,ln ....l" Sl'curitie" Ad (to bediscus .... l'd III,frll), thl' re"lJ!t I" an indic,ltiun pf theArk,ln"',l'" Cuurh \\·illingnl' ...... hl appl}' tlw prp\·i ... ipn ... IIIthe :\rLlns,l .... Set"llritil's :\d IlHlrl' brnadh' th,ln thl'

pruYi ... inn" pf the Sl'olritiL' .... r\d. 111

2. SECONDARY LIABILITYThe Arkan~,ls Sl'curitil'''' /\(t ,11"'0 nlllLlin~ Sl'ctiun

21--l2-!ll/1(c) \\"hid1 impp .... l'.., li,lbilit\" tor ~l'ctlritil'''

\'iol,ltiUlb under Ark. ('Udl' Ann, ~21~-I-2~I(lh(,l l upon ,1Spl'Ci,ll Cl.1SS uf peop1l' bl'C,lll"l' of thl'ir rl'lationshipwith thl' .... dkr. Thi .... group include.... control pl'rSPlh,p,Htnl'rS, pffit'l'rs, dirl'dpr.... ,Hld ,ltn' l'111plllH'l', brpkerde,lll'r pr ,lgent \,",lP Inatt.'ri,lih "id.., ill till' ..,dlL' ...\11\'one tlf thl'"e indi\·idu,l).., (,In l''''C,lpl' li,lbilit\' if thl'~' C.1n,,}HH\' th,lt the\" did Ill)t knu\\', and in the l"l'rcist.' ofrl',l .... on,lble carl', (ould not h,l\"(, kno\\'n, of thel'xistl'ncl' uf the t.lCh b\' re,1 .... l111 pf \\"hich li,lbilit\, i....

,lllL)ged tu l'xis1.2(l The speci,ll gruup whidl "l'l'nlS tu bethl' bruadest, .lgl'nts of sl'lkrs, h,lS been SPllll'wh,ltlirnited b}' thl' definitilHl uf ",lgl'nt" CtlnL1ined in theArk,lnsa .... Securities :\c1. Sedipll 21--I-211)2(2l definl'''"(lgent" ,h an~' indi\'idu,ll otf1l'r than ,1 bn1h'r-dl'<lkr.\\'hl..) ft:pre ....enh a brpkl'r-dl'<llvr PI' issuer in t'fil,eting PI',lttl'1l1pting tp l'tfl'd purch,l~l'''' or .... all·" (lI sl'curitil'''.Thi ........ l·dion furthl'r liTl1its till' ddinitiun tlt "agl'nt" h\'l''\cluding frnl11 thl' dl)finitioll thp ... t' ,1gt'nts \\·hoft..'pn'sellt thl' issul'r in effecting certain tr.tnsactiolls


l"l·111pft·{ trnnl rq~i"lr.lti()n or n'rt,lin ..,ecuritil'sl"l'mptl'd tnHll rq.;i"tr,ltion.

3. AlDERS. ABlTIORS, AI\DCO-C01\;SPIRATORS

Thl'rl' i... ,1 dl'\'l'lpping ,1rl'a (II ... t'dlritll'''' 1,1\\- \\'hichrl'Cpgni/l'''' "'l'((llld,lf\' li,lbilit\" '.Indl'r tIll' dl'fll1itipn of" .... l'lil'r" , \\'hich i... "'l'p,lL1tt' ,1nd ap,lrt trtl1l1 the.... l'l..tllld.lI\ lidhilit\· di"'t-ll...,";l,d ,lbll\·l'. Thl're ,He t\\·oSl'p,lf.1te thcories pf li,lbilitv ,llding and ,lbdting andconspILlc\', Lndl'r l',lch tht'tlr.\-·, thl' defl'lld,lnt,'llthpugh not tl'chnit',llh' ,1 "l'lll'r, i..; dl'riY,lti\'l'lytr,lnSp(lSl'd intp ,1 ... l'1kr bl'l',ltl"'l' of hi" knlHdl'dgl' ,lndactinn ... in till' ...ail' tll t1w sl',:uril\·. Bnth thl'llril' .... "'l'l'Il1l'dtll h(lYl' l'\'(lh'l'd hl'l-,lll"'l' thl' u1urh did IH1t \\·i ... h forputl'nti,llh' li,1bll' dl'!l'lldanh ttl l''''t',lpl' li,1hJllt~' because()1,1 "tl'chnic,11 g,lp" in tht' ... L1tl"'" l"lul' ... k\· l,lW(llYl'L1gl' '\1)\\' th,lt fillllf)'- h,1..; liIllitl'd tl Il'dl'r,ll.... l'curitie:-. d,lilll, thl' nnlrts ma~' hl' c,llll'd upon tofurther dl'finl' the"l' nl'W thl)Orie ... undl'r sttltl' blul' skylaws. -

,1. Aiding and Abetting Liabilitv,-\Ithtlugh the ;\rk.ln"',b ,,:tlurh h,l\'l' n(lt "'}1l'l'iti(,llh'

rl'Cogni/l'd (liding ,1nd ,1bdtin~ li,1bilit\' undl'r Sectip~l2")--I-210h(,1)( I HB), thl' fl'dl'r,ll t-nurh 11,1\-l' lI111\"

"rl'cngni/ed th,1t tlw krIll ..... l'llt-r· undl'r Sl'dipn 12 tlttill' Sel"uritil's :\d includl'd tht1"l'}-1l'rsl1Ib \dHl ,lid ,lnd(lbl't till' technic.ll :-'l'ller. Thl' ulndud (lnd ultin1,ltl'li.lbilit~· of thl' ,1idl'f ,lnd ,1b,,·ttor i.... judged b~' till' s.une

"Subst,lnti,ll f.ldor" te... t di ....cu~ ... l'd ";lIp!"ll,:!.1This pllll'nti,,1 It,lbill[" Illa,' h,lll' bl'l'n ,ltkdl'd b,·

thl' !)jlllt'I' deci .... illn, ht~\\·l'\-~'r. tht' Suprl'ml' CtlU~t"'pl'Cltic,llh- ... t.lted th,lt it \\',1S nut t-llllsldl'ring \dll'tlll'rci\'il 11,1bilit~· fllr .liding ,1nd .l11dtIng \\',1'" .lpprtlpn,llL'undl'r I..:,l'ditlll 12, I'll/!(", -1-,"\/1 L_'"' .It h-lS. ;\lthtllI,'l..;h thl'r\rk(ln";,h ... t,lte (uurh ,Hl' n(lt bpulld b\' thl' I)u/fer

dl'cisiun, their COlbidl'r,ltinn ut <1n (liding and ,1bL'ttingC,lUSl' pf ,ldion will depend Uptl11 whether thl'}' fed thein\'l'stpr in questiun needs prokdion npt ,lln'ad\'prp\'idl'd b\' thl' /\rk,ln"',h Sl'cuntil'''' :\d.

b. ConspiracyTIlt' nlll ... pir,ll-~- tht'tln' i thl' nt'\\·",... t pUkntldl C,HlSl' pf,ldilln under till' ..\rk,ln a ... Sl'dlritil'''' :\C1. Lndl'r thistlwor~', if ,1 cunspir,lC\' i found bd\\'l'l'n thl' technicalsl'lkr ,lnd till' plltl'ntl"l dl'knd,lnl, th,lt p,l\l'nti,lllkfend,lnt \\'oll1d bl'conll' ,1 sl'lll'r. In pther \\'urds, the.lct of Pill' uf till' cOllspir,ltors i.... ,In dd of all. Courts inother jurbdictiolh ha\'l' found ,1 dl'f,,'nd.lnt to bl' a~l'I1l'r h~' \-irtllt.' ot hi" p,lrticip,ltipll 111 a t·nn .... pIf,lcywith till' tl'd1l1ic.lI .... l'IIl'r.:!.:!.CONCLLSION

:\lthtlugh thl' :\rktln..;a Sl't-uritil'''' :\,,:t h,l .... hl'enl'n,lctl'd tor Illan.\-· \'l'ar , till' .... hortening of thelimit,ltiun .... pl'riud ot a It'dl'r,ll "'l·curitie.., callse of ,lction,b a result of LI1I11pf Ill,l\' C,ltlSe nl'\\" light to be shed onthis Art. Thl' "ntirip,'lL'd rl'sult llt this ch<1nge shlluld

DISCIPLINARY ACTIONS / ADVISORY OPINIONS

MICHAEL RAYMONDSALAMa

Michael Raymond Salamo, formerlyof Fayetteville, Arkansas, has beendisbarred following prosecution of anaction for disbarment in the WashingtonCounty Circuit Court. The complaintalleged, inter alia, that Mr. Salama'scourse of conduct over a period of yearsconstituted professional misconduct tosuch a degree as to render him unfit topractice law. From 1985 through 1990,Mr. Salamo was formally disciplined forviolations of the rules of professionalconduct on five separate occasions. TheCommittee had suspended Mr. Salama'slaw license in the two most recentdisciplinary actions.

Mr. Salamo, having filed an answerto the complaint, failed to respond to theCommittee's motion for summaryjudgment. The circuit court grantedsummary judgment and barred Mr.Salamo from practicing law in the Stateof Arknnsas. Mr. Salamo did not perfectan appeal from the judgment and orderof the court. Upon that order becomingfinal, the Committee petitioned theArkansas Supreme Court to order thedisbarment of Mr. Salamo and to directthat his name be removed from the listof attorneys permitted to practice law.The Supreme Court granted the petitionby per curiam order of September 21,1992.

MARK BRADENCHADICK

Mark Braden Chadick, Pine 8luff,Arkansas was suspended from thepractice of law for a period of three (3)months for violation of Model Rules 1.3,1.4(a), J.l6(d), 8.4(e) and 8.4(d) as aresult of a complaint by Billy Cannon.Mr. Chadick filed notice of appeal fromthe action taken by the Committee at thehearing conducted on July 18, 1992. TheCommittee stayed the suspensionpending disposition on appeal.Subsequently, Mr. Chadick moved todismiss the appeal and the suspensionwent into effect on October 3, 1992.

In his affidavit of complaint and


testimony, Mr. Cannon stated that he wasinjured in a slip and faU accident on thepremises of a Piggly Wiggly store while Imaking a delivery on January 12, 1988.He employed Mr. Chadick in March of1988 to pursue his claim for worker'scompensation. It was Mr. Cannon'sunderstanding that damage claimsagainst the premises occupant would bepursued on a contingent fee basis. FromMarch 16, 1988, through June 27, 1988,attorney Chadick corresponded with theworkers' compensation insurance carrierand the client. The correspondence, forthe most part, related to settlement of theworkers' compensation claim, attempts tolocate a known witness to the accidentand negotiations with the insurancecarrier to share in the litigation costs inthe contemplated lawsuit against PigglyWiggly. Mr. Cannon's workers'compensation claim was satisfactorilyresolved in December 1989. The clienthad no communication from his lawyerfor a considerable period of timefollowing disposition of the workers'compensation claim. He occasionallytelephoned Mr. Chadick and wasinformed that the tort claim wasproceeding normally. The client, uponreceiving a letter from Mr. Chadick inApril 1988 requesting information aboutthe prospective witness, had discov~r~

the person's whereabouts and driven toGreenville, Mississippi, to contact thepotential witness. Mr. Cannon stated thatthe person's name and address wereprovided to the attorney. In June of 1988,the subrogated insurance carrier hadwritten Mr. Chadick that it wouldprovide up to $1,000 of the estimatedlitigation expense and would compensatethe attorney on a contingent fee basis ofone-third of their recovery.

On March 1, 1991, Mr. & Mrs. Cannonwent to the lawyer's office to discuss theaction against the Piggly Wiggly store.Mr. Cannon was informed that $2,000would be required from him for costs andexpenses to prosecute the claim. He didnot have funds available in that amount.Mr. Cannon was somewhat confusedbecause he understood the representationto be on a contingency basis and noprevious mention had been madeconcerning his obligation to advance the

litigation costs. The client left the officewith the understanding that he was tocontact Mr. Chadick the following weekto determine if arrangements could bemade to pursue the case. Before Mr.Cannon was able to get back to theattorney, his wife received a call from arepresentative of the Piggly WigglyStores. The person inquired aboutobtaining a statement from Mr. Cannonin connection with a lawsuit filed by thesubrogated insurance carrier againstPiggly Wiggly. She was also advised thatno suit had been filed on Mr. Cannon'sbehalf against the store and, in anyevent, the statute of limitations hadexpired. Mr. Cannon, in a letter of March13,1991, advised Mr. Chadick of theinformation received by his wife andrequested return of his files. By letter,dated March 18, the attorney advisedthat Mr. Cannon could retrieve his filesby coming to the law office andexecuting a release, a copy of which theattorney had enclosed. Mr. Cannon wasadvised by other counsel that the releasewould absolve Mr. Chadick of anypotential claims in connection with therepresentation. onsequently, Mr.

arulon declined to execute the release.Additionally, on October 26, 1991, Mr.Cannon again contacted the prospectivewitness to the accident and wasinformed that the lawyer had not, noranyone on his behalf, ever contacted thewitness.

Mr. Chadick's response andtestimony admitted representation ofMr. Cannon in his workers'compensation claim but denied anyagreement to represent Mr. Cannon on acontingent fee basis against PigglyWiggly. The lawyer explained thebenefits which the client could expectfrom the workers' compensation claimbut advised him of the potentialdifficulties in pUISuing the claim againstthe store. Mr. Chadick stated he told theclient that he would not pursue a thirdparty claim on a contingent f~ and abuadvance the litigation expense. Mr.Cannon was advised that the lawyerwould pursue the claim against the storeonly on condition that the insurancecarrier or Mr. Cannon pay the entirelitigation expense. A copy of theinsurance company's letter of June 27,

_I

DISCIPLINARY ACTIONS / ADVISORY OPINIONS

l

1988, wherein the company agreed toshare expenses not to exceed $] ,000 on itspart, was forwarded by the lawyer to Mr.Cannon. The client subsequentlyinformed Mr. Chadick of his inability topay litigation costs and again was toldthat the matter would not be pursuedwithout full payment of the cosls.

Upon the successful disposition of theworkers' compensation claim onDecember 20, 1989, the potential claimagainst Piggly Wiggly was discussed. Mr.Cannon again declined to advance thelitigation costs and indicated a desire toabandon the claim. Mr. Chadick advisedMr. Cannon to contact the lawyer if hechanged his mind. Considering the matterconcluded, Mr. Chadick took no furtheraction on the case. In May, 1990, thecomplainant contacted the lawyerregarding some financial matters and alsoinquired about the Piggly Wiggly case. Hewas still unable to provide advance costsand Mr. Chadick informed him of thestatute of limitations expiration date ofjanuary 12, 1991. Mr. Cannon made noresponse and the matter was notdiscussed further until the Cannonsappeared in the lawyer's office on March1, 1991. The meeting was brief andconcerned the client's financial situationand work problems. Mr. Cannonmentioned pursuing the Piggly Wigglyclaim and Mr. Chadick reiterated therequirement for prepayment of expenses.Because the lawyer did not have his casefile before him, he was unaware ofexpiration of the time in which to file suit.Mr. Chadick was not aware of any lawsuitfiled by the insurance carrier and, untilreceipt of Mr. Cannon's letter of March 13,1991, was not cognizant of the running ofthe statute of limitations. Since thelawyer's recollection of the previousevents and discussions conflicted withsome of the comments in Mr. Cannon'sletter, he concluded that no usefulpurpose would be served by a response.However, pursuant to the client's requestfor return of his case file, he was sent arelease form which Mr. Chadickdescribed, basically, as anacknowledgment of receipt of the filesand a release of responsibility for furtherlegal representation. Although theattorney acknowledged that hiscorrespondence with the insurancecompany might have been viewed as hisundertaking legal representation for Mr.

Canon's third party tort claim, he statedthat was not the intent or purpose of theletters.

JUDICIAL ETHICS ADVISORYCOMMITfEE OPINIO S

Follawin8 are summaries of tire advisoryopinions issued by tire Judicial EtllicsAdvisory Committee from requests foropinions received since tl,e Committee'screal;oll, Jllly 1, 1991. Copies of Ihe filIIopit,ioflS are available upon request from theJudicial Ethics Advisory Committee, 4th &Cellier Streels - SlIile #1060, Lillie Rock, AR72201. Copies are also available 01 IheSupreme Court Library and the law schoollibraries in Fayetteville and Little Rock andare included iI' the LAw Office InformationSyslem CaseBase for Arkallsas.

Advisory Opinions#91-01,91-02, and 91-03

The first three requests for advisoryopinions received by the Judicial EthicsAdvisory Committee revolved around theissue of nepotism. In each case therequesting judge asked if the continuedemployment of his spouse or relativeunder the unique circumstances of eachemployment situation was a violation ofCanon 36(4) of the Code of judicialConduct. In each of these instances, therequests did not meet a thresholdrequirement to go before the JudicialEthics Advisory Committee. Thatthreshold requirement is that the requestfor an advisory opinion relate toprospective conduct only.

Advisory Opinion #91-04(November 22,1991)

The Arkansas judicial Ethics AdvisoryCommittee issued an advisory opinionstaling that a judge may serve on a bank'sadvisory board, that the judge'sownership of approximately 2 % of thevoting stock of the bank constitutes afinancial interest that requiresdisqualification in all cases in which thebank is a party, and that the judge shouldconsider divesting the stock and resigningfrom the board if frequent disqualificationis required. The Committee also advised

that the judge must disqualify himselffrom cases filed or tried by his brother-inlaw, the city attorney, and must not issuewarrants at the request of his brother, thedeputy prosecuting attorney. TheCommittee also advised that the judge isnot precluded from appointing his wife asan unpaid deputy clerk but that it wouldbe better not to do so, although she couldstill occasionaUy do general secretarial oradministrative work. The committeestaled that if the judge still considersappointing his wife as a clerk, he shoulddo so only if she is qualified, the positionis a deputy position, the position istemporary and part-time, theappointment is on a volunteer andphilanthropic basis with no perceivedpresent or future financial benefits (eitherdirect or fringe) to the relative or thejudge, and the volunteer service providedby a relative is not considered withrespect to increases in the judge's salary.In response to a question about whatfinancial reports judges must file, theCommittee stated that the request was notmade in accordance with Procedural Rule3 because it was not accompanied by aconcise memorandum setting forth thejudge's own research and conclusion.

Advisory Opinion #91-05 (November 19, 1991)

The Arkansas judicial Ethics AdvisoryCommittee issued an advisory opinionstating that a judge may not solicit fundsin person, by telephone, or by letter fromindividuals or corporations to support areception to be held following acontinuing legal education seminarysponsored by the Arkansas Association ofWomen Lawyers nor may the judge solicitfunds on personal stationery from herresidence, but the judge may suggest tothe organization the names of potentialdonors and participate in the planning offund-raising, and non judicial members oremployees of the organization maycontact donors if they are careful not tosuggest that they are acting on behalf ofor with the knowledge of the judge. TheCommittee noted that Canon 4C impliesthat a judge may personally participate in"private" fund-raising, but stated thatprivate fund-raising should be interpretedas limited to narrow situations involving,for example, fund-raising among relativesand other judges.

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I For a humorous look at the realworld problem of lawyer bashing, seeLawrence Savell, Wily Are Tirey Picking onUs?, A.B.A.)., November, 1992, 72.

2 LEADING A LAW PRACTICE TO

EXCELLENCE, at 5.

book to all attorneys interested inrefocusing their practice andimproving the overall quality of theirlegal services. While the bookcontains few startling or trulyinnovative ideas, it provides anexcellent review of many ideas andpractice pointers gleaned fromseminars or other books or pamphletspublished on the subject of improvingone's law practice. I suggest thatthose who attempt to read the bookfrom cover to cover will find ittedious to do so because of its lengthand because of the inherentrepetition. One thing that the readerwill not find in the book is abibliography of other articles andbooks on related subjects, and Ibelieve that this omission may be thebook's biggest failing given the book'soverall length and purported scope.

of law firms serving in and "in-house"capacity.

This is not to say that the bookmerely contains a rehash of wellestablished and exhaustivelyanalyzed practice pointers. Theauthor does take several positionsthat are not "mainstream."

While LEADING A LAW PRAcnCE TO

EXCELLENCE will be a valuableresource for many, it is also subject tocriticism. Its focus on the needs ofcorporate counsel is narrow. Thenature and scope of the principlesdiscussed should provide benefits tovirtually all lawyers who areinterested in improving the focus and Iquality of their practice.

A second criticism is that thefundamentals essential to a qualitylaw practice are repetitiouslyinterspersed throughout the bouk.The author acknowledges this in hisIntroduction. 2 If the readerapproaches the book to exploreselected topics of interest rather thanreading it from cover to cover, thisshould not pose a major irritation.

In closing, I would recommend the

The book's 42 chapters are dividedinto ten separate parts, Part Iprovides an overview of manyinterrelated principles that arefundamental to the development of aquality law practice, Chief amongthese principles nrc the role ofleadership in developing a properlyfocused and quality law practice, thecontinual need for reevaluating thelong-term goals of one's practice aspart of the long-range planningprocess, and the need to develop orincrease the preventive law aspectsof one's practice, The authordescribes this last concept as the needto move one's practice from a"reactive" to a more "proactive" mode.Indeed, these concepts areintertwined and are interspersedthroughout every topic discussed inthe book.

Parts II, lIT, IV and VI contain amore in-depth review of theseprinciples. Parts V and VIIspecifically discuss ways toeffectively recruit, train and evaluatelawyers and also address otheraspects of developing a successfulcareer path for both associates andjunior partners. Parts VII, IX and Xcontain a review of a wide range ofsubject of particular interest to thoseengaged in the administration andmanagement of an "in-house"practice.

Many lawyers, particularly thosewho have risen to the position ofsenior partner in a law firm or asenior a ttorney or associa te genera Icounselor above in a corporate legaldepartment, will find little that iseither startling or new in LEADI G ALAW PRACnCE TO EXCELLENCh. This is,of course, as it should be. In recentyears national and state barassociation have conducted numerousseminars and published a number ofarticles, pamphlets and books whichaddress many, if not most, of theprinciples necessary to improving theoverall quality of a law practice.

onetheless, the book does serve as acomprehensive compilation of thesefundamentals, and as such can beused a a "primer" on these principlesfor the senior managers of corporatelegal departments and senior partners


PRESIDENT'S MESSAGE

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

The lesson of November 3,1992, is abundantly clear thatthe American people wantchange in not just theirgovernment, but their societyas well. Lawyers are asignificant and visiblesegment of society, and wetherefore cannot take umbragethat the tassel loafer insultswere buried in a rout. Thelawyer's duty to represent theunpopular will always givelawyer-bashers a forum, andthe slightest act of arrogance,incivility and indifference toclients, witnesses and jurorswill always justify publicdissatisfaction.

The message from BillClinton, an Arkansas BarAssociation member andholder of bar number 73019,was extraordinarily clear andquite plan. He said, "I want anAmerica that values thefreedom and the dignity of theindividual." This simpleobjective was central to his

new covenant. And it seemsthe people too wanted thisnew covenant that valuesindividual freedom anddignity, for November 3rdwas, in Bill Clinton's words, " ... a victory for the people whowork hard and play by therules, a victory for the peoplewho feel left out and leftbehind ..."

As a result of that victorythough, he will take an oath tobecome the President whichmerely says: "I will faithfullyexecute the office of Presidentof the United States, and willto the best of my ability,preserve, protect and defendthe Constitution of the UnitedStates."

Upon taking his oath tobecome a lawyer, however, hemade a much deepercommitment to freedom anddignity of the individualwhen he swore:

I will not reject, from anyconsideration personal to

myself, the cause of theimpoverished, the defenseless, or the oppressed.

[ will endeavor always toadvance the cause of justiceand to defend and keepinviolate the rights of allpersons whose trust isconferred upon me as anattorney at law.

(You and 1 took the sameoath.)

Bill Clinton was electedPresident of the United STatesin large part because heunderstood his Arkansaslawyer's oath, made it aserious commitment, andintegrated it into his privilegeof being a lawyer. While wecan take pride that anArkansas lawyer will nowlead the United States, pridealone won't do it. We mustremember our own oath,which in its simplest termssays: 1 will place the clientfirst.

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Counsel, and still others in thenumerous gla morous jobswhich are idolized in themedia. The rest of us have aneven greater opportunity tofulfill our own destiny andhave the most important job inthe Clinton era. We who stayat hame are the ones who willreally craft Bill Clinton' visionof an America which valuesthe freedom and dignity of theindividual. And what asplendid opportunity tha tis,because tha t vision will notmaterialize from a cabinetpost, but from lawyers' hardwork in DeQueen and Des Arcand DeWitt and in otherplaces like Hope.

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A lawyer's destiny has

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Mercedes. That destiny will

not change in the new

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as lawyers is restated by our

fellow bar-member-president

elect tMs way: We reach "our

fullness as human beings by

being of service to our fellow

men and women." It is readily

apparent that Bill Clinton's

election has reemphasized the

lawyer's calling to assure

justice to the people who

work hard and play by the

rules, as well as those who feel

left out a nd left behind.

As soon as you lay this

message aside, there will be a

file on your desk requiring

your attention. If that file is

handled as just another fee,

our destiny is lost and the

message from the American

people on ovember 3rd is

ignored. But if the file, be it a

boundary dispute, or a child

support claim, or a corporate

refinancing, is respected as a

matter affecting human life,

the legal profession will

guarantee, as it has done so

often, tha t America is indeed a

place where everyone counts,

and the American dream for

justice will not be a dream for

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LAW PRACTICE MANAGEMENT

Changing Partners:Comparisons to Your Current Situation

By Jerry Schwartz

At this time of the year manypartners get restless with theircurrent partnership arrangements. The causes may be many,however, leadership and financesare generally the two primereasons for discontent. Partnersbegin to look elsewhere or firmsthat are interested in expandingmay show an interest which fuelsthe restlessness. Regardless ofwhether the causes are internal orexternal, certain areas should beinvestigated before the partnermakes a decision to move togreener pastures. James LarryGreen, an author and speaker onlaw office management topics,ou tlined some of the followingareas of concern for consideration;COMPE SATIO SYSTEM

Determine whether thecompensation system at the newfirm is an objective or subjectivesystem. If the system is objectivedetermine what criteria are usedin the process. It is important thatyou fully understand the criteriaand that the firm has a reportingsystem for you to review on aperiodic basis to determine yourprogress. If the system issubjective, determine who decides

and who tends to reap therewards of the system. Alwaysexamine the system personally.Don't leave your compensation tosomeone's interpretation of thesystem.FINANCIAL STATEMENTSAND MANAGEMENTREPORTS

Exa mine the financialstatements of the firm for the pastfew years. If the firm does nothave monthly financialstatements, it is difficult todetermine the financial strengthor weakness of the firm. Asubstitute for the financialstatements is the annual taxreturn of the organization. It willprovide you with someinformation on the financialcondition of the firm. A firm thatdoes not bother to producemonthly financial statements isnot taking care of the businessside of the practice and should belooked at very carefully.Management reports should alsobe reviewed to determine theamount of hours worked, billedand written off by the variouslawyers. The current work inprocess and aged accounts

receivable should be examined toinsure that these two major assetsare being properly managed. Ifthere appear to be problems inthese areas then the billing systemmay be weak which could affectyour compensation under both asubjective and objectivecompensation system.INTER-PARTNER RELATIONSAND MANAGEMENT

Review the minutes of partnermeetings to determine that allpartners participate inpartnership meetings. Aresignificant issues discussed atmeetings or do the partners dwellon the minor issues? Check forunresolved topics, which is anindication of philosophicaldifferences among the partners orfailure to deal with tough issues.Find out who is in charge andwhether that person's philosophyis in line with your ownphilosophy of managing the firmand the practice.OPERATIONS

Closely review the physicalplant of the firm. The public areasof the firm must portray an imagethat will satisfy your clients. Theoffices, conference rooms and

"back office" areas should beadequate to get the job done. Theoffice should be in good repairand organized. Check to see tha tt he firm is using curren tequipment and technology.Obsolete equipment may be anindication that the firm is notprofitable or that a majorexpenditure will be neededshortly to purchase the necessaryequipment and technology. Thestaffing of the firm should also beconsidered at this time. If yourcurrent secretary is not movingwith you, will there be adequatesupport for your practice? If yourequire a dedicated person, willother partners and staff becomfortable if ratios are changedfor your practice?

Other issues including capitalcontribution, practice growth andsupport, professional liabilitycoverage and the partnershipagreement should be reviewed.You owe yourself an exhaustiveexamination of the prospectivefirm, because you do not want tomake a capricious decision toleave your current firm to end upin a situation which is worse thatthe one you are leaving.

When all is examined you mustweigh your knowledge of the newfirm with what you know to betrue in your current firm. Changeshould only occur after carefulreflection. Partnership should notbe taken lightly. It is not just afinancial arrangement, it is astrength to better serve the clientswho place their trust in you.

Jerry Schwartz is the owner of LegalManagement Services of Memphis,Tennessee, a consulting and managementservices firm specializing in profitabilityimprovement for small and medium sizetaw offices.


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Despite its inability to overridepresidential vetoes l and the inabilityof the Senate to break filibusters,2 the102nd Congress considered andpassed a substantial amount oflegislation.3 This article will reviewonly a small portion of that legislationand will also preview legislation thatis likely to be introduced andconsidered during the next Congress.

ENERGY: The 102nd Congressbegan with an energy-related war inthe Persian Gulf and ended with thepassage of a comprehensive energystrategy bill,' one of the few majorpieces of legislation to emerge fromthe 102nd Congress. Congressionalleaders wasted little time inintroducing major energy bills in bothhouses of CongressS in early 1991following the start of the war.

A cloture vote" on the Senate billfailed in early November, 1991, andthe bill was withdrawn from thefloor. When the Senate reconvenedfor the second session, anotherversion of the energy bill wasintroduced.' The new version wasstripped of the controversialprovision to open ANWR (the ArcticNational Wildlife Refuge) toexploration and drilling, and theprovision to boost CAFE (corporate

average fuel economy) standardswhich would force automakers tobuild more fuel-efficient cars. Thelegislation finally passed both housesduring the last days of the Congressand was sent to the President, whosigned it on October 24,1992.8

The energy bill affects theproduction and use of all types ofenergy. It amends the Public UtilityHolding Company Act of 1935 tocreate a new class of independentpower producers, called exemptwholesale generators, to produceelectricity to sell to public utilities.Licensing procedures for nuclearpower plants were streamlined.Government agencies, both federaland state, and eventually someprivate companies will be required topurchase vehicles that operate onalternative fuels.

A number of tax provisions werepart of the final bill, including adeduction for alternative fuel vehiclesand for converting vehicles toalternative fuels; an increase in theexcise tax for ozone-depletingchemicals; permanent extension of atax credit for solar and geothermalenergy; write-offs for independent oiland gas drillers, even if they pay thealternative minimum tax; and aprovision to allow employers toprovide tax-free mass transit

subsidies of up to $60 per month witha cap of $155 per month on tax-free,employer provided parking benefitswhich are currently unlimited.

Financing health benefits forretired mine workers was one of themost controversial provisions of thebill. The United Mine Workers healthcare plan was depleted, leavingapproximately 120,000 retired minerswithout benefils. The plan is beingreplenished by moving money fromthe union's pension fund and throughthe interest on a tax that coalcompanies pay for reclamation work.

The l03rd Congress may considersome of the issues that were droppedfrom consideration this year in orderto get the energy bill passed. CAFEstandards and the opening of theArctic ational Wildlife Refuge aretwo of those issues. Questionsconcerning offshore drilling alsoremain to be addressed.

CIVIL RIGHTS: The 102ndCongress acted to "reverse" severaldecisions by the United StatesSupreme Court concerningemployment discrimination and civilrights9 and to expand the remediesavailable under Title vn of the CivilRights Act of 1964. The bill 10 providesfor compensatory and punitivedamages in cases of intentionaldiscrimination and for jury trials. The

"The 102nd Congress acted to reverse several decisions by theUnited States Supreme Court concerning employment

discrimination and civil rights . .."

amount of damages which may beawarded is capped according to thesize of the employer's workforce. Thebill made its way through Congressonly after extensive negotiations andonly after a similar bill" was vetoedby the President during the 101stCongress.

THE HOUSING BILL: A twoyear reauthorization of federalhousing programs was cleared byCongress during the final days beforeadjournment. J2 A formula for localgovernment contributions for newconstruction and rehabilitation offederal housing under the HOMEInvestment Partnersltips Act is part ofthe final bill. An authorization for theHOPE (Homeownership andOpportunity for People Everywhere)project, designed to allow publichousing tenants to purchase publichousing, also includes a program toteach young people job skills throughemployment on federal housingconstruction projects. Provisionsenacted in 1990 to preserve thesupply of federally assisted housingwere reauthorized. Elimination oflead based paints from both privateand public housing and protection ofworkers exposed to lead are goals ofthe bill.

One of the most contentiousissues addressed in the housing billwas the issue of "mixed housing."Tenants of federal housing projectsthat once housed only the elderly feelthreatened by an influx of younger,disabled tenants, many of whom arementally disabled or drug abusers.Separate facilities may be designatedfor the disabled and elderly under theterms of the bill, but the designationsmust be approved by the Departmentof Housing and Urban Development.Preference may be given to theelderly by owners of federallysubsidized housing so long as at least10% of the units are set aside for thedisabled.


The loan limit for FHA (FederalHousing Administration) singlefamily home loans would be raised to95 percent of the median home pricein the area or 75 percent of the 1992loan Umit set by the Federal HomeLoan Mortgage Corporation,wltichever is less. An unpopular law

that capped the amount of closingcosts that could be financed in anFHA loan at 57 percent was llited byCongress in an earlier bill. 13

The housing bill authorized, forthe first time, a program aimed ataddressing the problems ofhomelessness in rural areas andreauthorized the Stewart B.McKinney Homeless Assistance Act.Programs for homeless veterans wereapproved as part of separatelegislation."

The House and the Senate clearedbills to strengthen regulation ofgovernment sponsored enterprises,1Sbut the two houses were never able toconference the bills for proceduralreasons. The two major governmentsponsored enterprises, Fannie Mae(the Federal ational MortgageAssociation) and Freddie Mac (theFederal Home Loan MortgageCorporation), have an estimatedcombined liability in excess of $1trillion dollars. Out of concern thattaxpayers might eventually be at riskif the government sponsoredenterprises suffered financialdifficulties, members of Congresswere anxious to find a vehicle tomove the legislation. A compromisebill was attached to the conferencereport on the housing bill. Thecompromise creates an independentregulator within the Department ofHousing and Urban Development toregulate the entities and to write riskbased capital standards to ensure thatthe entities can survive economicfluctuations.

HIGHWA Y BILL: Thelntermodal Surface Transportation

Infrastructure Acti6 was signed intolaw before the adjournment of thefirst session of the 102nd CongresS.This authorization bill allows statesand local governments moreflexibility in spending their share ofthe Highway Trust Fund, extendsthrough 1999 two and half cents of

the five cent gas tax increase whichwould have expired in 1995, andincreases the amount of funding

CABLE TELEVISIO : Legislation to allow the FederalCommunications Commission toregulate rates for basic cabletelevision services'7 was the first andonly bill to survive a veto byPresident Bush. The law alsoregulates the relationship betweencable operators and their competitors,such as satellite operators, andrequires cable operators to getpermission from broadcasters to retransmit over-the-air Signals.

COMMODITIES FUTURESTRADING COMMISSIO : One ofthe last pieces of legislation to clearthe Senate was the CommoditiesFutures Improvements Act of 1991.18

Spurred by the investigation andinclictments of commodities traders inChicago, legislators sought to restrictdual trading, require more extensiverecord keeping of transactions,resolve questions of jurisdictionbetween the Commodities FuturesTrading Commission and theSecurities and Exchange Commissionover new financial products that havecharacteristics of both securities andfutures, and provide moreenforcement authority for theCommodities Futures "TradingCommission.

CHILDRE : A bill to requireconsumer credit agencies to includechild support debts on credit reports19

was presented to the PresideXlt for hissignature. Willful failure to pa y childsupport may result in federal criminalaction against the nonpayinf; parent

~--------------

as a result of bill passed during thelast days of the session.2o A bill topromote judicial training for childcustody cases2! and a bill to promotethe use of expert witnesses indomestic assault cases" were alsoapproved before adjournment.

TAX: After failing to override aPresidential veto of the Tax Fairnessand Economic Growth Act of 199223

last March, Congress made a secondattempt to enact a tax bill before theend of the session. H.R. 11 began asan attempt to aid urban areasfollowing the Los Angeles riots bu tbecame a magnet for dozens ofunrelated provisions.

The urban aid was in the form ofenterprise zones that would qualifyfor special tax incentives and federalassistance in order to attractbusinesses to the area. The finalversion of H.R. 11 created 50 zones,half in urban areas and half in ruralareas, with tax breaks expected tototal approximately $2.6 billion over afive-year period. Businesses located inthe zones would receive a 15% crediton the first $20,000 in wages paid toemployees. Purchases of stock inbusinesses in the zones would qualifyfor deductions up to $25,000. Otherincentives included accelerated writeoffs for property and a capital gainstax cut of 50% on zone investmentsheld for five years or more.

Other provisions unrelated tourban aid included extension ofseveral temporary tax provisions,known as the "ex tenders;"24restoration of IRA (individualretirement account) benefits for mosttaxpayers; penalty-free IRAwithdrawal for first-time homepurchases or for housingreplacements and repairs for victimsof recent natural disasters, as well asfor education and medical expensesfor the unemployed.

Restoration of the passive lossdeduction, breaks for heaVilyindebted real estate investors, and aprovision allowing homeowners toroll losses from home sales until thelosses can be deducted from ordinaryincome were all designed to assist theailing real estate market. Otherindustries would benefit from arepeal of the excises taxes on luxury

items, such as furs, jewelry, personalairplanes, and boats. The thresholdfor application of the excise tax toluxury automobiles, which iscurrently $30,000, would be indexedto inflation. The $100 annualassessment on pleasure boats wouldbe repealed. Employers would begiven a credit equal to the amount ofpayroll tax paid on employees' tips.Charitable contributions would beexempt from the alternativeminimum tax.

H.R. 11 would raise revenue byincreasing the amount that taxpayerswho make estimated tax paymentswould have to pay in order to avoidunderpayment penalties; capping themoving expense deduction; closing aloop-hole that allows purchasers offailed savings and loans to receivedouble tax benefits; extending estatetax rates for large estates; shorteningthe write off period for intangibles;disallowing business expensedeductions for club dues and fortravel expenses for spouses;increasing the Withholding rate onbonuses; and not paying interest ontax refunds if the refund is mailedwithin 45 days. Congress delayedsending H. R. 11 to President Bush sothat he would not be forced to decidewhether to sign the bill until after theelection. The tactic, designed toimprove the chances of getting the billpassed, failed. President Bush vetoedH. R. 11 and the l03rd Congress willprobably consider a tax bill in 1993.

EDUCATION: A highereducation authorization bill2S which,among other things, increases thegrants and loans available to middleclass students was signed into law onJuly 23, 1992. A bill designed toimprove elementary and secondaryeducation, the eighborhood Schools[mprovement Act,26 was approved bythe House and the Senate but diedwhen the Senate failed to invokecloture on the conference report27

after threatened filibusters. Severalsmaller education bills wereapproved and igned into law.28

HEALTH CARE: Chief amongthe issues never addressed by the102nd Congress that will most likelybe addressed during the nextCongress is health care. The

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combination of soaring health carecosts, increasing numbers ofuninsured individuals, and the lack offederal, state, and local money willmake the health care problem one ofthe most difficult facing the 103rdCongress. A number of bills wereintroduced during the 102ndCongress that may provide a previewof the kinds of solutions that the nextCongress will consider.29

CAMPAIGN FINANCE: A billJO

to set voluntary limits on campaignspending by tying the limits to publicfinancing, limiting contributions bypolitical action committees, andcontrolling independent expendituresin federal campaigns was passedduring the 102nd Congress. TheSenate failed to override a Presidential veto making campaign financea political issue in 1992 and prioritylegislation for the 103rd Congress.

penalties for crimes involving guns,and extended the death penalty tomore than 50 federal crimes. Whenthe Senate failed to invoke cloture onthe crime bill for the third time, anunsuccessful attempt was made tomove the Brady bill, whicll requires awaiting period for the purchase ofhandguns and was part of the crimebill, as separate legislation.33

Other crime measures weresuccessfully passed. A bill to givefederal courts jurisdiction overcarjacking crimes and impose amaximum penalty of life in prisonpassed easily during the last days ofCongress. 34 A bill to increase thepenalties imposed on financialinstitutions for money laundering35

was attached to the housing bill·36

Revocation of institutional charters byfederal regulators is the toughest ofthe new penalties for federal

opposed by abortion opponents. TheMajority Leader of the Senate, whohas the power to designate the firstfive bills of any new Congress, vowedto use his power to designate this billas 5.1 and keep the Senate in sessionduring the first week of the newCongress until the bill is passed."

ENDNOTES1. President Bush vetoed 36 bills from the

beginning of his term as President until the sinedie adjournment of the 102nd Congress onOctober 9, 1992. Both houses of Congress votedto override only one, the cable television bill, S.12, 102nd Congress, 2nd Sess. (1992).

2. A filibuster in the Senate can only beended by agreement or by invoking cloture,which limits debate on the matter to a total of30 hours, limits the time individual Senatorsmay speak, and requires that all amendmentsto the pending matter be filed in advance andthat the amendments must be germane, both asto subject matter and scope. A three-fifths voteof the Senate, or 60 VOles, is required to invoke

"Chief among the issues never addressed by the 102ndCongress that will most likely be addressed during the

next Congress is health care."

FAMILY LEAVE: A bill torequire employers to provide familyleave to employees31 died when theHouse fell 27 votes short of thenumber necessary to override aPresidential veto. The bill would haverequired employers to allow most oftheir employees up to twelve weeksof unpaid leave to care for newbornsor ill family members. Businesseswith fewer than 50 employees wereexempt under the bill and onlyemployees who had worked at least25 hours per week during thepreceding twelve months would havebeen eligible for the leave. Familyleave legislation will undoubtedly beconsidered in the 103rd Congress.

CRIME: A crime bill32 that passedboth houses during the first session ofthe 102nd Congress died when thesecond session adjourned after theSenate failed three times to invokecloture to forestall a threatenedfilibuster. The bill would have limitedhabeas corpus review, imposed new


institutions while state-charteredinstitutions could lose federal depositinsurance coverage. The bill alsoauthorizes fines and other penalties.

ABORTION: The Housesustained a veto which killed the TitleX Pregnancy Act of 1991,37 The billwas introduced after the UnitedStates Supreme Court upheld theAdministration's regulation, knownas the "gag rule," restricting abortioncuunseling in family planning clinicsthat receive federal funds.38 The rulewill likely be the target of legislationin the next Congress.

FoUowing a Presidential veto of abill 39 to reauthorize the NationalInstitutes of Health and provideresearch into health issues ofparticular concern to women, asimilar bill was introduced. 40 Thelegislation, which containedprovisions overturning anAdministration ban on the use ofaborted fetal tissue for tissuetransplantation research, was

cloture. Standing Rules of the Senate, Rulexxn, par.graph 2.

3. A total of 1,544 measures wereintroduced in the Senate and 2,714 wereintroduced in the House during the 102ndCongress. The Senate passed 652 and House746 bills, resolutions, concurrent resolutions,and joint resolutions. 138 CotlgressiolltllRecord145,01332 (daily ed. October 9,1992).

4. S. 2166, 102nd Congress, 2nd Sess.(1992).

5. S. 341, 102nd Congress, tst Sess. (1991)which was later reported from Committee as S.1220, 102nd Congress, 1st Sess. (1991), and H.R.776, 102nd Congress, 1st Sess. (1991) wereintroduced in early February.

6. note 2, supra.7. S. 2166, 102nd Congress, 2nd Sess.

(1992).8. H.R. 776, 102nd Congress, 1st. Sess.

(1991).9. Ward's Cove Packing u. Alltonio, 109 S.Ct.

2115 (1989), a plaintiff in a Title VII disparateimpact case must prove specifically thediscriminatory employment practices thatresult in a disparate impact rather than merelyproving discriminatory impact of theemployer's practices in general or simplyshowing a statistical imbalance. PriceWaterhouse v. HopkillS, 109 S.Ct. 1775 (1989),once a Title VII plaintiff can prove that genderplayed a role in an employment decision, theemployer may avoid liability by proving that

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Paula Casey has served as a legislativeaide to Arlalnsas Senator Dale Bumpersfor the past year. She is currently a lawprofessor at the University of Arlalnsas atLittle Rock School of Law. She is theArlalnsas Bar Association Lobllyist for the1993 Arlalnsas General Assembly.

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

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(1991).33. S. 3282, 102nd Congress, 2nd Sess.

(1992). S. 3282 differed from the provisions ofH.R. 3371 in that it would require a sevenrather than five day waiting pericxi.

34. H.R. 4542, 102nd Congress, 2nd Sess.(1m).

35. H.R. 6018, I02nd Congress, 2nd Sess.(1m).

36. See note 12 supra.37. S. 323, I02nd Congress, 1st Sess. (1991).38. Rust v. 5ulli""n, III S.C!. 17S9 {I 991).39. H.R. 2507, I02nd Congress, 1st 5oss.

(l99I).40. S. 2899, 102nd Congress, 2nd Sess.

(1m).

ona

the same decision would have been made evenif gender had not been taken into account.Martin v. Wilks, 109 S.C!. 2180 (1989) a persondiscriminated against by a civil rightssettlement in which he did not partidpate andwas not represented has a right to challenge thesettlement. Lorance v. AT&T, 109 S.Ct. 2261(1989), the statute of limitations for Title VIIcommences when a discriminatory system isimposed, not when the "concrete effects" of thesystem become obvious. Patterson v. McLeanCredit Union, 108 S.C!. 1419 (1989), Section 1981extends only to the formation of contracts anddoes not cover the employment relationshipafter the contract has been established.

10. S. 1745, 102nd Congress, 1st Sess.(1991).

II. S. 2104, 10lst Congress, 2nd Sess.(1990).



14. H.R. 5400, 102ndCongress, 2nd Sess. (1m).

IS. H.R. 2900, 102nd Congress, 2nd Sess.(1m).


17. S. 12, 1000d Congress, 1st Sess. (1991).18. H.R. 707, 102nd Congress, 1st Sess.

(1991).19. H.R. 6022, 102nd Congress, 2nd Sess.

(1m).20. S. 1002, 102nd Congress, 2nd Sess.

(1992).21. H.R. 1253, 102nd Congress, 1st Sess.

(1991).22. H.R. 1252, lO2nd Congress, 1st 5oss.

(1991).23. H.R. 4210, 102nd Congress, 2nd 5oss.

(1992).24. HR. 11 would permanently extend the

low-income housing tax credit, the targetedjobs tax credit, and exemptions for mortgagerevenue bonds and certificates. Tax breaks foremployer-provided educational assistance,health inswance for small businesses, researchand development, and orphan drugs would beextended for twelve months.

25. S. 1150, 102nd Congress, 1st Sess.(1991).

26. S. 2, 1000d Congress, 1st Sess. (1991).27. H.R. Rpt. No.916, 102nd Congress, 2nd

Sess. (1992).28. H.R. 1285, 102nd Congress, 1st Sess.

(1991), the Higher Education TechnicalAmendments; S. 64, 102nd Congress, 1st Sess.(1991), the Education Council Act of 1992; H.R.751, 102nd Congress, 1st Sess. (1991), theNational Literacy Act of 1991; H.R. 2313, 1000dCongress, 1st Sess. (1991), the NationalDropout Prevention Act of 1991.

29. see, e.g., H.R. 5502, 102nd Congress,2nd Sess. (1992) which would establish anational system similar to Medicare with stateshaving the option of establishing an aJtemativeiS. 1227, 1000d Congress, 1st Sess. (1991) wouldrequire employers to provide coverage throughprivate insurers or contribute to a nationalhealth care plan.

30. 5.3, 1000d Congress, 1st Sess. (1991).31. S. 5, 102nd Congress, 1000d Congress,

1st Sess. (1991).32. H.R. 3371, 102nd Congress, 1st Sess.

November 3, 1992 ...The day the dream came trueBy David R. Matthews

The rest of the Nation has now discovered what we, Arkansas

lawyers, have long known. Arkansas lawyers make great national

leaders. U. M. Rose and Edward L. Wright have served as presidents

of the American Bar Association, Herschel Friday now serves as

president of the American Bar Association Endowment and Phillip

Anderson is the current chairman of the American Bar Association

House of Delegates. Countless other Arkansas lawyers have served as

national chairmen of various Bar and other civic organization

committees. Other Arkansas lawyers, such as joe T. Robinson, Wilbur

Mills, john McClellan, Dale Bumpers, and David Pryor, have risen to

prominence in the national political arena. All have been members of

the Arkansas Bar Association. The ultimate success for an Arkansas

lawyer and the ultimate honor for the Arkansas Bar Association was

achieved on November 3, 1992, when a member of our Association,

Bill Clinton, was elected the Forty-Second President of the United

States of America. That honor was, of course, doubly significant in

that the Nation's new first lady, Hillary Rodham Clinton, is also an

active member of the Arkansas Bar Association.

His election as President is not only a great personal honor, it

is also a tribute to our State and our profession.

Bill Clinton's entire public life has been inextricably tied to

the legal profession. After his graduation from Yale Law SChool in

1973, Bill knew he wanted to come home to Arkansas. Spurning many

lucrative East Coast job offers, both in government and the private

sector, Bill returned to his beloved Arkansas with no job and no

money. In the now famous story, Bill Clinton stopped at a pay phone

along Interstate 40 and placed a call to then Dean of the University of

Arkansas at Fayetteville Law School, Wiley Davis. The future

President described his academic career and willingness to teach to

Dean Davis. He finally closed the deal by promising the Dean that he

would teach any course and would agree, in advance, to not seek

tenure. In what was clearly one of Dean Davis' best decisions, he

gambled on hiring the young Yale law graduate.

Clinton was true to his word. From September, 1973, until

December, 1976, Bill carried a diverse and changing curriculum. He

taught admiralty law, agency and partnership, a white collar crime

seminar, federal jurisdiction, trade regulations, criminal procedure,

and constitutional law. During that time, he closely interacted with

several hundred future Arkansas lawyers. Many of those same

students are now serving in important roles in the Arkansas political

scene. Several have become legislators, some judges, and many have

worked on various boards and commissions in an effort to make our

State an even better place to live and work. In 1976, Bill Clinton was

elected Attorney General of Arkansas. In that short two-year tenure as


Attorney General, Clinton instituted new aggressive policies that

substantially enhanced the role of the Attorney General's office as an

advocate for Arkansas consumers, particularly in the area of utility

reform.

In 1978, Bill Clinton became the youngest elected governor in

the United States of America. His first term in office was marked by

an aggressive and all encompassing agenda. Bill Clinton was a young

man in a hurry to pull the State up from its perceived low status. In

1980, Bill Clinton was the youngest former governor in the United

States.

From 1980 until 1982, Bill Clinton was a lawyer with the firm

of Wright, Lindsey, and jennings. Hillary Clinton had become a

partner in the Rose Law Firm.

While Bill and Hillary Clinton have maintained many friends

in all walks of life, it was their friends in the legal profession who

helped sustained them during the unanticipated two-year sabbatical

from public life.

In 1982, Bill Clinton began the most important appeal of his

life. It was an appeal to the people of Arkansas for a reversal of their

decision in 1980. Like all good lawyers, Clinton prepared his

arguments carefully, with painstaking attention to detail. In 1982, he

was reelected Governor of the State of Arkansas. The lessons learned

from defeat and his prior experiences served him well. Beginning in

1983, Arkansas began a series of unprecedented reform efforts led by

Governor Bill CHnton and lawyer Hillary Clinton. Time and time

again, during the 1980's, as Arkansas would embark on yet another

reform effort, Clinton called on Bar Association members for help.

Hillary Clinton chaired the Arkansas Education Standards

Committee in 1983. Robert Cabe served on the Quality Higher

Education Standards Committee of 1985. Webb Hubbell served as

Chairman of the Campaign Ethics Commission which led to the

Campaign Ethics and Lobbyists Disclosure Initiated Act of 1988. In

virtually every instance of public spirited reform, Clinton would turn

to members of the legal profession for leadership roles. Throughout

his career as Governor of Arkansas, a hallmark of his administration

as governor has been his insistence that the legal system be opened

up to women and minorities.

In a time when lawyers and the legal profession have been

frequent targets for political demagogues, Bill and Hillary Clinton

have steadfastly proclaimed their pride in the legal profession and

have represented all that is good in our profession.

The Arkansas Bar Association is proud to congratulate two of

its members on their achievements. Our vicarious joy at their victory

is tempered by our sadness that they will be leaving their active role

in our profession in our State for a while. We take comfort in

knowing that soon America will learn that Arkansas is a land of

leaders.

How to Determine the BestInterests of the Child in

Custody Litigation:A Guide for Judges & Trial Lawyers

By James A. Chaney, Ph.D. andLillian Chaney, Ed.D.

Editors Nou:This article was originallypri,md in th. Oetob" /989 issu. of Th.Arkansas lAwyer. Dut to the ;nurtSI thearticle gtntraud al that time. we /tit itwould b. h.lpftl to "print it with minorchangN.

Prior to the middle of thenineteenth century, it was assumed inthe United States that fathers wouldget custody of the children in adivorce. By the middle of thenineteenth century, however, the"tender years presumption" becameoperative, and courts began to use the

principle that a very young childcould receive psychological benefitsfrom the mother that could not be aseasily obtained from the father. Itwas then assumed that at the end ofthe tender years period the childrenwould be transferred back to thefather, who had the "right" to them.As child labor laws were passed in theearly part of the twentieth century,children were no longer an economicasset, and fathers did notautomatically demand that theyrecei ve custod y. Consequen tly,during the 1920s, states changed theirlaws so that custody was not givenautomatically to fathers.

For the next 50 years, motherswere typically given custody unless

they could be proven grossly unfit.During that time, traditionalformulas for placement seem to havefallen along sexist lines, which madethe judges' work much easier.Courts then were asked to reevaluate the rules for determiningplacement in the mid 1970s toconsider the likelihood of a manbeing an equally good or betterparent. The consequential change ofthe polestar of custodydetermination to the best interests ofthe child made custodydetermination a much morecomplicated process of judgmentthan utilization of a simple rule,

rigidly adhered to, that the femaleautomatically makes the best parentfrom the viewpoint of the child's bestinterests.

In preparation for the talk on whichthis paper is based, letters were sent toall of the Chancery and Circuit Judgesin Arkansas, as well as approximately400 attorneys, to ask their experienceconcerning the determining factors incustody decisions. It seems to be aconsensus that many judges utilize anunwritten presumption that, duringthe tender years, a mother still has tobe proven unfit before the father Canobtain cusLody. It appears that thegeneral viewpoint is that the bestinterests of the child are served byplacement with the mother at this age.While this may often be the case, theremay be a strong possibility that sinceall of us rely on our background,training, and experience to makejudgments, the attitude concerningautomatic placement of children withtheir mothers, during the tender yearsand later, may be a product of learning.Most of us were reared in traditionalfamilies where our fathers workedoutside the home, and our mothersstayed home to Care for our needs andthose of the family. Thus, we probablycame to believe at an early age that ourmothers are and should be the properchild rearers.

These beliefs were probablyreaffirmed in the college and universitydays of persons 40 yenrs old and overwhen an important area of research inpsychology waS "maternal bondingwith the child." This research waswidely discussed and probably lentincreased credence to the concept thatfemales are the best or "natural" childrearers. Additionally, we knew asyoungsters that children in divorcedfamilies were automatically given tothe mother, which may have furtherstrengthened our belief that women arethe proper child rearers. Hence, it maybe that many fathers never requestcustody because these environmentalfactors have convinced them thatfemalE'S are the logical choice forparenting.

11 does not take many weeks ofpsychological practice, law practice, orbeing a Chancery Judge in the 1990s torealize that the best parent can be amother or a father. The polestar of


utilizing "the best interests of a child"to determine custody serves the verypurpose of avoiding automaticplacement with the mother if the bestinterests of the child can be served bythe father. In the 1990s when almosthalf of all mothers work outside thehome, traditional concepts of themother as the ultimate parent are beingaltered.

The task of determining whichparent Can serve the best interests ofthe child is very complex at times. Ofcourse, it is not a difficult judgmentwhen one parent is obviou Iy unfit, orif the case is that the child is oldenough to have his or her wishesconsidered (with proof of no undueinfluence by either parent, ormanipulation of the parent by suchchild). However, the case may be verycomplex between the ages of five andtwelve if both parents appear to be fitparents. It may also be very complexbelow the age of five if the "motherchild bonding" is not taking place.

The determination is usually madeon the basis of comparative strengthsand weaknesses of the litigants, alonglines which are fairly easily brought tocourt. These include factors such assobriety, moral character, religioustraining, work stability, financialstability, health, ability to provide astable community environment,general environmental conditions ofthe neighborhood, and present andfuture financial conditions.

Whjle few would doubt that theseare extremely important, other aspectsmay be even more important indetermining which parent would bestserve the child's interests. These arefamily relationships, emotionalstability and personality of thelitigants, emotional stability andpersonality of the children, and theparenting ability of each litigant. Itshould be noted that all of these factorsare interdependent and that problemsin anyone area can affect functionjngin the other areas.

Wt!! bt!!Lieve thal these four are areasin which a mental health profes ionalssuch as a psychologist, social worker,or psychiatrist has unique training thatmay be helpful to a case.Unfortunately, it has been theexperience of some attorneys andjudges that there are mental health

professionals who are "hired guns,"and do not represent the mental healthprofessions well. There are others whoperform short, inadequate evaluations,and those who Simply perform routinepsychological evaluations withoutinvestigating these vital areas. Properdetermination of these areas offunction is very time consumingtypically taking between 20 to 30 hoursincluding interviewing and testing.Subsequent sections of this paperregarding these four areaS are heavilyindebted to the work of Dr. Richard A.Gardner's text, Family Evaluation inChild Custody Litigation, but also towork of family theorists in psychology,social work, p ychiatry, andpsychological testing.

In families with evere dysfunctionof family relationships, parents are notusually having their needs for love metby their spouse and may turn to theirchildren for love and a sense ofimportance. Thus, one parent forms analliance with the children, or some ofthe children, against the other parent.The parent who has been underminedalso is not having his or her needs met,and generally turns either to an extramarital affair, throws h.iJTIself into hiswork, drinks or uses drugs to kill thepain, divorces, develops a majordepression, or becomes mentally ill. [naddition, he probably will becomebitter and hostile without knowingwhy, leading to further alienation fromthe family.

It is probably these families that youare most likely to see in your practiceor in your court. Whjle the mother isusually the person who is most able toundermine the father in the eyes of thechildren, in fact, it is often the fatherwho has undermined the mother withthe children, thereby causing her to beisolated from the family and enragedfor reasons that she does notunderstand. Since a custody decisionmay be made on the basis of whatappears to be parental bond, it isextremely important to make ajudgment concerning the reason for thebond. The bond formed between aparent and child by undermining theother parent can easily affect the way achild comes to feel about the oppositesex, and set a pattern for how theyresolve conflicts with their ownspouses when they become adults. We

are all, to some degree, products of ourenvironment, and we can only usemethods of resolving conflict withwhich we are familiar. If we learn toresolve conflicts by getting everyone onour side and isolating the opposingperson, then we are more likely toemploy that method when we becomeadults. Unfortunately, most peopleseem to use this method without everconsciously knowing they are doing it.

Those things that children in yourpractice or court learn from their familyof origin are extremely important foradult functioning. Their family oforigin is usually where they learn toexpect what happens in marriage.Those spouses who have undermined aspouse to the children are likely tocarry that behavior pattern into thenext marriage for the children to seeand to have reinforced. The behavioroften re-emerges many years laterwhen the children are married,potentially producing another divorce.There are several methods ofdetermining whether such patterns arepresent: observing the interactionpattern of both parents with each other;both parents with the child or children;observing each parent with the child orchildren; and watching children playtogether. Alliances within the fantilymay become quite obvious when themental health professional gives thefamHya task to work on as a group.

Another method of determiningfamily relationships is by use of theFamily Relations Test, which measuresa child's perception of members of theimmediate and extended family. Thetest provides insights concerning thechild's perception of positive andnegative feelings that others have forhim, and measures the child's positiveand negative feelings toward others.Additionally, there is a measure of themanner in which a chHd is dependent.

The second area where a mentalhealth professional may be of help tothe court is the emotional stability andpersonalities of the litigants, which istypically established by psychologicaltests. Their personality structures andemotional stability are determined byinterviews and personality tests. Themost widely used and researchedobjective personality test is theMinnesota Multi-phasic PersonalityInventory (MMPI). TItis test has over

500 questions and was developed in arather intelligent way for its day.Rather than ask straightforwardquestions about emotional problems,the questions were constructed andgiven to people with known emotionalproblems to ascertain the pattern inwhich they answered the questions. Itwas found that persons with specificemotional difficulties tended to answerthe test questions in a particularpattern, which persons taking the testcould not know, even if they aresophisticated test takers. The test hasbuilt in scales to determine if theperson has a tendency to lie, andwhether they are trying to "fake good"or "fake bad." When the test taker hasan excess of any of these responses, thetest profile is considered invalid.Otherwise, the practitioner hasinformation concerning a person'stendencies in 10 principal areas and canreceive information on 78 secondaryareas. The problem with using only theMMPI is that the test measurespathology instead of personalitystrengths and thus gives a veryincomplete view of parents whoserelative strengths may be extremelyimportant in a custody decision.

Fortunately, tests exist which willmeasure personality strengths.Examples include the 16 PF and theMotivation Analysis Test. One of themost important of the measures fromthe Motivation Analysis Test is theconflict area, which measurescomponents like frustration in a career,being unsuccessful in obtainingfreedom from the emotional ties ofparents, a conscious denial of danger(which criminals typically repress inorder to carry out their acts), animproperly functioning conscience, aloser syndrome, repression of sexualinterests, and frustration in the searchfor affection.

The Child Abuse Potential Inventoryprovides a measure of the tendency tobe abusive to a child. Regardless ofany factor investigated, a mental healthprofessional should have someindication of whether a parent orstepparent is likely to be abusive.

The third major issue, emotionalstability and personality of thechildren, is typically determined by testresults and interviews. Mental healthprofessionals are quite aware that

children should have a good selfconcept if they feel loved andimportant and are able to expressfeelings in the two major feelingchannels-love and anger. lf a child'senvironment is deficient in helping himor her to feel loved and important, hisor her self-concept will be lowered.Additionally, a child will often have apoorer self concept if he or she is ableto express only one major set offeelings. Testing for these factorsincludes the Children's Perception Test,Three Wishes, drawings of the familyinvolved in some activity, directquestions, and observations regardingthe child's behavior and manner ofinteracting with the practitioner andothers. The tests for young children arenot objective questions that childrenrespond to on a sheet of paper, sinceeighth or ninth grade reading ability istypically necessary to answer objectivequestions. However, these tests maytake as long as six hours, thus enablingthe practitioner to get a pretty goodidea of the child's personality structureand emotional stability.

It is also important to understandwhich parent the child would prefer tolive with and why. It may be helpful toask the child what things about hismother and father that he or she likes,and what things about their motherand father that he or she does not like.The child may prefer living with aparticular parent because they havethe bigger house. The practitioner canask at this point if the parents were toswitch houses which parent theywould like to live with. A child maynot want to live with one parentbecause that parent makes them dotheir homework and go to bed earlyenough to be rested for the next day atschool. Other children will never statea preference for one parent. They areaware that their parents may beattempting to pull them in onedirection or another, and they do notwish to make a choice. It is oftenhelpful in that situation to ask whichparent their brothers and sisters wouldlike to live with. This can help thechild to tell you the parent he wants tolive with without actually naming oneover the other. However, it should beunderstood that children may have avery negative view of the parent whohas left the home.

Practitioners should probably besuspicious if a child describes oneparent as being all good and the otheras being all bad. The child whodescribes a parent as having onlyassets or liabilities has probably beenvery much influenced by one of his orher parents. Another set of testswhich may be helpful for children areSentence Completion Tests whichmay have questions such as:I want to know ...Athome ...I regret. ..What annoys me ...I feel. ..My greatest fear ...I can't ...

The final area, parenting ability ofeach litigant, is possibly the mostimportant area in which a mentalhealth professional can provideinformation in custody decisions. Wehave found Dr. Richard Gardner'sbooks to be very helpful in thisregard, and much of this sectionutilizes his work. As previouslymentioned, our style of coping withstress is learned by watching others.We primarily learn to parent byhaving watched our parents do it,tending to be the same type of parentsthat ours were. If a man'srelationship with his father was poor,it may be helpful to determine if thisfather is compromised in his paternalcapacity. Similarly, if a mother didnot get along with her muth~r, it willlikely be helpful to determine if hermaternal capacity is compromised.Discussion of their past might includewhat kinds of games they played aschildren. If girls liked to play"house" and to play with dolls, thismay be helpful infonnation regardingher ability to function as a nurturingparent.

An important aspect concerningparents is indicated by theirchildhood activities involving pets.Research has indicated that childhoodinterest in pets is positively correlatedwith parental capacity.

It may be helpful to determineexpectations regarding the number ofchildren they wanted after they gotmarried. If a person answers none orone, this is not much evidence ofparental capacity, especially if theysay none and apparently had il child


by accident. On the other hand, thosewho have seven or more may nothave much respect for the individualneeds of children. Another questionto ask concerning expectations at thetime of marriage, is how long theyplanned to wail until their first childwas born. If they did not takeanything into consideration, this is anegative. People with good parentingcapacity typically consider theirfinancial and emotional resources,such as wishing to know each otherbelter, or having their relationshipwell established and comfortablebefore having cltiJdren.

The practitioner might then askabout altitudes during pregnancy.The mother with good parentingcapacity will see to it that she hasgood prenatal care. One would hopethat the practitioner will ask how themother thought she looked duringpregnancy. The mother with goodparenting capacity usually thinks shelooks beautiful. The woman whobelieves that she is ugly or is ashamedof herself presents a negativeresponse to parenting capacity. Thisis similarly true with the father. Itmight be helpful to ask the parentswhat their secret preference for sex ofthe child was. If the bias wasunjustified and strong in a particulardirection, one might find a parentwho chose a name for only one sex.

Concerning experiences shortlyafter birth, postpartum depressionfollowing the birth of any of thechildren should be explored. Thesedepressions typically involveunhappiness with the maternal roleand hostile impulses which are keptoutside the mother's awareness byher seemingly being excessivelyloving toward the child. While thereare biological changes which occur,many do not believe that suchchanges are sufficient to producepostpartum depression. Attitudestoward breast feeding hould beexplored. The man or woman whoconsiders such behavior "primitive"is less likely to be paternal ormaternal. Simply asking about breastfeeding is insufficient, in that popularbooks tend to equate breast feedingwith maternal capacity andfemininity. It is important tounderstand an individual's attitudes.

The next set of questions regardingthe children is about the currentperiod of lime. It is typically begunby asking a parent to describe theirchildren. If the parent answers withcomments regarding their physicalcharacteristics instead of personal orpsychological factors, this potentiallycompromises parent capacity. It maythen be helpful to ask the parent todescribe what things they like abouttheir child and what things theydislike. If they are unable to think ofanything they like, this sayssomething significant about theirrelationship with the child. If theyindicate that there is nothing that theydislike, then the parent is probablytrying to deceive the practitioner intobelieving that everything is bliss.

The next question is to ask parentsto assess themselves as parents, boththeir strong and weak points. Ofcourse, all these questions are askedwith some tact. Dr. Gardner suggestssaying," 0 one is perfect. Everyonehas both assets and liabilities, bothgood points and bad points.Regarding parenting, what do youconsider your assets and what do youconsider your liabilities?" In asSt'SSinganswers to this question, thepractitioner should altempt todetermine whether the liability isactually a liability and whether it ispathological. Some mothers andfathers may say that they scream atthe children. Sometimes, soft wordsare not very effective in dealing withchildren.

Another factor to be evaluated isrelated to parent behaviors regardingcuddling. Research studies since the1930s have indicated that all childrenneed to be touched and held. It isimportant to determine which parenttends to cuddle and hug the children.Small children are often fearfulentering the practitioner's office, andthey may try to cuddle with a parentor to hide their head in the parent'slap. It is important to notice whichpar~nl the child goes to for thepurpose of alleviating his fear. Somechildren may simply lie comfortablyin the parent's lap. This is importantinformation. It is also important tonotice what the parent does at thatpoint.

An additional area concerns the

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amount of time that each parentspends with the child outside mealpreparation, cleaning the house, etc.How much does each parent enjoytheir child sitting on their lap or timespent reading bedtime stories. Evenif the father is the only one who hasworked outside the home, men withgood parenting capacity enjoy theseactivities. The practitioner might thenask what they like doing most withthe children. This is typically asurprise question as many of theothers are, and the parent who hasdifficulty answering the question maynot be very close to the child. Thepractitioner can then ask what theylike doing least with the child. Ifthere is nothing, the practitioner willrealize that the parent is beingdeceptive and tends to give lesscredence to their other answers.

Another factor in parenting is howmuch each parent talks to the childand what they talk about. Researchevidence indicates that children canbe stunted in intellectualdevelopment if parents talk very littleto them before five years of age. Theinvolved parent may help them withtheir homework or talk to them aboutother things, even though it is aconversation which other adults mayfind excruciating. Other questionsinvolve which parent hastraditionally gone with them to dancerecitals, music recitals, baseballgames, football games, etc.

The other area of concern for thechild's best interests involves theissue of helping the child learn todevelop social skills to get along withothers. Children cannot learn to getalong with other people withoutplenty of contact with other children.Consequently, the practitioner shouldask questions about each parent'sattitude toward the child haVingfriends in the home. The parent whohas the children's interests foremostin their minds recognizes thatannoyances such as messiness,fighting, and noise are simply theprice for a child learning to have goodsocial skills. This skill is terriblyimportant in adult life and a veryimportant goal of child rearing.

Regarding the importance ofeducation, children tend to haveroughly the same commitment to

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education as parents. This hasnothing to do with the parents'professed commitment. Nearly allparents in custody litigation state thatthey are very interested in theirchildren performing well in school.This attitude can often be assessed byobserving how much each parent isinvolved in the child's performance inschool. The parent who is verypleased with a child's work, and letsthe child know that he or she ispleased, helps to increase the chHd'smotivation for education. The parentwho is too busy to observe the child'swork or to help them understand aschool concept is probably notactually comm;tted to the educationalprocess. On the other hand, theparent who does the child'shomework is typically doing the childmore harm than good, telling thechild that he does not actually have toperform. An additional factor indetemuning educational involvementis to deternune who has gone to thenighttime PTA meetings over theyears. Of course, it is important todetermine whkh parent does thesethings out of duty and who has agenuine interest in these activities.

Jt may also be helpful for thepractitioner to ask each parent if he orshe has pictures of the children in hisor her wallet. This is not a largefactor compared to the others thathave been discussed. However, itmay be helpful to examine parentalfacial expression if the practitionersays that they are good lookingchildren. One can then observewhether the parent seems prideful orhas no r action.

Parental function includes thecapacity for discipline as well as ti,ecapacity for love. By asking whatthings that parents find tlley have topunish the children for, one can findif parents are willing to discipline thecluldren. The parent who is unable todiscipline typically rears a child whois self-centered with lillie sense ofconscience toward those around himor her. On the other hand, findingout the methods of discipline candetermine whether a parent is crueland harsh. Sometimes a practitionercannot get a very good answer to this

36 ARKANSAS LAWYER JANUARY 1gH~

question, and Gardner suggestsseveral questions, including:

What's the best way for a parent tohandle a c1llid's temper tantrums?

What would you do if a childcheated while playing a game withyou?

What do you do with a c1uld whosucks his or her thumb?

How do you handle a child whouses profanity to a parent?

What about a child who usesprofanity in front of a parent,profanity that is not directed towardthe parent?

How do you handle the situationwhen a cIilld refuses to fuush supper?

What is the best way to do when aparent catches a cIilld involved in sexplay with a neighbor's child?

How do you handle childrenfighting, especially when it becomesfierce?

What do you do when a childsteals and then lies about havingstolen?

What is the best thing to do whena child refuses to do homework?

What is the best way to handle achild who refuses to do householdchores, such as taking out the garbageor making the bed?

What is the best thing for parentsto do if they find out that theirfourteen or fifteen-year-old daughteris pregnant?

If a parent responds with acomment like, "My child would neverdo that," the practitioner can ask theparent to speculate on what theywould do if this happened. Thepractitioner can also find out if theparents might isolate the child forinappropriately long times, withdrawaffection for a prolonged period,whether the parent tries to bribe thechild, whether the parent reliesexcessively on reasoning or trying toget a cIilld to understand the parentrationale, or whether the parentmakes empty threats. Methods thatwork well include short-termisolation, a short explanation, firmcommand, and the type of spankingwluch does not injure the cIilld.

Aside from the four componentsthat have been discussed, there areother areas concerning relationships

that may be helpful. For example, aparent who is remarried may have anedge over the single parent in thatthere are two people to provide care.

Another area of importance is toexplore the child's relationships withother relatives. It may help todetermine if grandparents or aunts oruncles are available for contact and toask a series of questions concerningwhat are the best and worst thingsabout each of these relatives.

The final area which has importantimplications for the best interests ofthe child is the type of custodyawarded. Since judges are frequentlyconcerned about protecting theinterests of the parents, they areaware that parents who lose custodynot only lose the custody of thecIilldren but also a great deal of selfesteem. Judges may tl1US be temptedto award joint custody.

Willie some states have mandatedjoint custody, it seems to take anunusual set of parents for this to workwell. This arrangement requires agreat deal of cooperation betweenparents, and both must be willing tomake cODlpromiscs which arenecessary to ensure that thearrangement works well. However,assuming that this call be worked out,it is also very important that parentsare both well suited in terms ofparental capacity. It will not workwell for a child to be placed in jointcustody if one parent is greatlysuperior to the other in parentalcapacity. However, assuming thatthese conditions are met, it isimportant that the dlild's school workis not disrupted by going from houseto house. Therefore, it should beworked out that parents live in thesame school district or the childattend a private school that is fairlyclose to the house of each parent. It isvery difficult to meet all of the econditions. When they are not metand joint custody is granted, it istypical that from a psychologicalpoint of view there is no custody.TIlis is not in the best interests of thechild. Where these criteria are met,joint custody seems to have workedvery well.

REFERENCESChaney, L., Psychoanalytic

Approaches, Systems Approaches andBehavioral Approaches to Marriage andFamily Therapy, Research, 1984.

Dudley, R. H., A Chancellor Looks atChild Custody, Support and Visitation,First Supplement to Arkansas DomesticRelations System, January 1, 1982.

Gardner, R. A" Family Evaluation inChild Custody Litigation. Cresskill, N.J.:Creative Therapeutics, 1982.

Goldstein, J., Freud, A., and Solnit, A.J.. Beyond the Interests of the Child. NewYork, .Y.: The Free Press, 1979.

Group for the Advancement ofPsychiatry. New Trends in ChildCustody Determinations. Harcourt,Brace, Jovanovich, 1980.

Hofling, C.K., Law and Ethics in thePractice of Psychiatry, ew York, .Y.:Brunner/Mazel,lnc., 1981.

Lowery, c.R., Child Custody Decisionsin Divorce Proceedings: A Survey ofJudges, Professional Psychology, Vol. 12,No.4, August, 1981.

Schetky, D. H. and Benedek, E.P.(Eds.). Child Psychiatry and the Law.New York, N.Y.: Brunner/Mazet Inc.,1980.

Wallerstein, J. S. and Kelly, J. B., Effects

of Divorce on the Visiting Father - ChildRelationship, American Journal ofPsychiatry 137:12, December, 1980.

James A. Cllalley, PIID., alld Lilliall Cllalley,Ed. D., are Psychologists ;', jOflesboro,Arkansas. Dr. James Cllauey is a faCilitymember at tlte University of Arl(Jmsns for theMedical Scieuces and Arkansas SlaleUniversily. He is also a rotatillg facultymember al U,e University of Mississippi LawSchool Judicial College. He is Ihe Director ofBehavioral Sciellces for IIle Family PracticeResidtmcy Program al jOllesboro Area HealthEducation Center and is 011 staff at 51.Bemard's Regional Medical Center MethodistHospital in jOllesboro, a/ollg wilh mailltaininghis uwn private practice. Dr. Lillian Challeyis also ill private practice alld is a Professor ofCOl/lrselillg alld Psychology al ASU. She IUDS

on Ihe Board of Directors of MethodistHospital alld Arkallsas Adoocales for Childrell& Families i1l jouesboro, has seroed as a "011

legislalive member of the Arkansas LegislativeSelect Committee on Children & Youth(appoi"ted by Governor Cli"tOIl), and hasbeen named one of the Outstnfldi"8 YoungWomell of America.

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WILBUR H. BOTTS

Wilbur H. Botts, 77, of DeWittdied in October. He was a memberof the Arkansas Bar Association, theRotary Club, the Chamber ofCommerce of DeWitt and theAmerican Legion.

He was Past Chair of the ArkansasNational Heritage Committee andserved on the Board of Directors ofthe DeWitt Bank and Trust Co.

Survivors include his wife,Kathleen Hagan Botts of DeWitt; oneson, Bill Botts of Marianna; onedaughter, Mary Carr of DeWitt; twosisters and three grandchildren.

JUSTICE GEORGE

ROSE SMITH

jllstice George Rose Smith

Writtell by J. GOStOIl Williomsolljustice George Rose Smith of Little

Rock died on Octubff 20,1992, at theage of 81. A native of Little Rock anda graduate in 1933 of the U of ASchool of Law in Fayetteville, hepracticed law for 15 years with Rose,Hemmingway, Cantrell andLoughborough in Little Rock.


During that period, he married PegNewton of Little Rock, taught in thethe Carmachel Night Law School andserved for 3 1/2 years in the Army AirCorps' judge Advocate Section.

In 1948, judge Smith was elected tothe Supreme Court, where he servedcontinuously for 38 years until hisretirement on December 31, 1986 atthe age of 75. At that time he hadserved more years on an appellatebench than any other appellate judgethen serving in the United States. Butit was more than the term of years orthe 2000 plus opinions he wrote thatmade his judicial service sooutstanding.

justice Smith's judgment was verysound, based on thoroughpreparation, experience and vastknowledge of the law. He had abrilliant yet open mind, coupled withjudicial courage and intellectualhonesty. His opinions were conciseand complete and written in clear,declarative sentences which werealways grammatically perfect. Hewas the author of the Court's internalprocedures and its published ruJes ofpractice. For a number of years justiceSmith taught at the Appellate judgesSeminar at ew York University andelsewhere, and rus methods of opinionwriting, as well as his law reviewarticles on appellate practice, are stillwidely taught and followed.

The depth of justice Smith'sintellect, skills and character wasdemonstrated by rus hobbies. He wasan accomplished brick mason,carpenter and electrician. His love ofwords led to his creation of crosswordpuzzles, some 50 of which werepublished during his last 20 yearsinduding a number in the ew YorkTimes and National Observer. He hada remarkable collection of 444 golfballs, each unique, which he gathered

in the days he used to jog along sideof Rebsamen Park Golf Course. Bad1evening about dusk since 1964, judgeSmith served food on his terrace towild raccoons in numbers whichvaried from 12 to 27. For 24 years,the Smiths' Christmas card hasdisplayed a different photograph ofthe raccoons performing some noveltask, like trimming a Christmas treeor tying up presents, for wltid1 judgeSmith had cleverly enticed theraccoons to pose. He was not onlyan outstanding judge but aremarkable human.

Survivors include his wife, Mrs.Peg Smith; a daughter, Dr. LaurieSmith Fisher of Clarksville; and agrandson, Michael G. Fisher.

Memorials may be made to theArkansas Bar Foundation for thejustice George Rose SmithScholarship Fund.

JAMES K. YOUNG

james K. Young, 70, ofRussellville, who served as CityAttorney for 25 years, died inOctober.

He was a partner in the Young &Finley Law Firm. He was a formerstate representative, a member of theArkansas Bar Association, theRazorback Lettermen's Club andFirst Christian Church.

Survivors include his wife,Marianne Young; a daughter,Elizabeth Gill ; a stepson, Donald P.Higgins; two stepdaughters, AnnBaca and Susan Carver; and sevengranddilldren.

Memorials may be made to theArkansas Tech Universityendowment fund or to First ChristianChurch of Russellville.

YOUNG LAWYERS' SECTION COLUMN

We are theDo-GoodersBy Lucinda McDaniel

Members of organized barassociations are do-gooders. Yes,we members enjoy the fellowshipprovided through the organizedbar, but we also work diligentlyon projects which provideservices to members and servicesto the public. During Constitution Week, the Arkansas YoungLawyers Section completed avoter awareness program tostimulate interest in local, state,and national elections and toregister those high schoolstudents eligible to vote. BrantPerkins of Jonesboro prepared ared, white, and blue posterprominently displaying the Statueof Liberty which urged studentsto register and vote. YoungLawyers then attended highschool classes to discuss votingrights and the elections. At thetime of writing this article, theelections had not yet been held;however, the Arkansas YoungLawyers have had an impact onthat election and, hopefully, on anew generation of voters.

Ruth Ann Wisner of Pine Bluffis coordinating the publication ofa consumer handbook. Arkansasconsumers will be advised onbuying a used car, buying ahouse, leasing goods, collectingdebts, and consumer "scams."Through this project, Arkansas


attorneys can educate the publicso that they will be able to makeintelligent and informeddecisions about the products theypurchase and the debt they incur.

Abe Bogoslavsky of Little Rockcoordina ted the fall swearing inceremony for new attorneys.Inductees were welcomed to theprofession at a receptionfollowing the taking of their oathand packets of information fromarea businesses and the ArkansasBar Association were distributed.Many of these new lawyersattended the Bridging-the-GapSeminar coordinated by DonParker of Little Rock and ScottMorgan of Pine Bluff. TheBridging-the-Gap Seminarannually initiates new attorneysto the profession by providingpractical tips a nd sa mple formsfor use in their practice.

The first annual Minorityau treach Project will beconducted this year at the UALRSchool of Law. Lynn Williams ofHot Springs has securedcommitments from minoritylawyers, court reporters,courtroom personnel, and otherlaw related professions to speakto minority students aboutcareers in law. Wendell Griffinrecently reported to the Execu tiveCouncil of the Arkansas Bar

Association that no minoritystudent graduated from theSchool of Law at the University ofArkansas at Fayetteville duringthe past year. The MinorityOutreach Project is designed toremedy that situation by activelyrecruiting minorities to theprofession.

May will bring the traditionalLaw Day project where younglawyers allow students to act as ajury in classroom mock trials.Packets of information areprepared including witnessstatements, applicable law, andsuggested topics of discussion.

Young lawyers are then pairedwith participating schools topresent the evidence and the lawand allow the class to vote as ajury on the guilt or innocence ofthe accused. This project hasconsistently been presented inover forty classrooms reachingapproximately a thousandstudents each year.

Other sections and committeesof local and state bar associationsdo similar work for theprofession and for the public. Ata time when lawyer bashing is apopular sport, we must publicizethe good we do both for ourfellow attorneys and for thepublic.

LAW OFFICE TECHNOLOGY REVIEW

Tax Research on CD-ROM andWestlaw Goes NaturalBy Barry O. Bayer & Benjamin H. Cohen

We've been spending a lot of time,lately, browsing through the evergrowing list of CD-ROM researchmaterial presented by both newpublishers and traditional old linepublishers of print legal research.This week we look at several volumesof CCH Access CD-ROMs, whichduplicate the material contained inthe Commerce Clearing HouseFederal Tax Reporter, and a lot more.We also note a major newdevelopment from Westlaw.InstallationIDocumentation

The CCH search software installedautomatically from a 3-1/2 inchfloppy disk to about half a megabyteon our hard disk. The programrequires the Microsoft MS-DOS CDROM extensions and MS-DOS 3.1,and comes with a .PIF file for useunder Microsoft Windows. We hadno problem running the programwith our usual CD-ROM setups. Theprogram needs about 450 kilobytes offree memory, and, according to themanual, about two megabytes of freedisk space.

A 220 page manual presents greatdetail about program usage andproblems. Extensive on-line contextsensitive help made the manualmostly unnecessary. Toll free help isavailable from 8:00 PM to 10:00 PM,Eastern time, weekdays, and 9:00 PMto 5:00 PM Eastern time on Saturday.Interface

CCH Access CD-ROMs commands can be issued with functionkeys or pull down menus. The usercan narrow the scope of the search bychoosing one or more table ofcontents topics, continually "walkingthrough" the table of contents until

the desired document is reached. Atany time, the user can perform a fulltext search with the standard booleanand proximity connectors, but thescope of the search is alwaysnarrowed to the selected topics; inaddition after encountering a citationsin the text of a document, the user canoften '1ink" to the cited document bypressing F5 or using the pull downmenu alternative.

The program maintains a projectlog that records the researchcommands given and shows timelogged to the system. The user canopen a notepad to record comments,or excerpt material from the database.

A typical search took 5 -10seconds, and even complex searchesusually took no more than 15seconds, using our relatively slow CDplayer.Standard Tax Service

Our first tests were of a two diskset including the eqwvalent of the 19volume Standard Federal TaxReporter, the Gift and Estate TaxReporter, and CCH's Excise TaxReporter. The Federal Tax Service isalso available, alone. The CD database is claimed to contain the sameinformation as the paper reporter,and we found that research on the CDis at worst the same as with the looseleaf service, and potentially muchfaster.

When we looked for somethingthat was not on the current disk, wehad to write down the search term,change to the other disk, and r.,...,nterthe search term, a minor inconvenience. According to the manual, thesoftware supports multiple CD

players, and automatically searchesthe appropriate disk without humanintervention.

The second disk, which containsthe topical index, citator, and currentand historical lnternal Revenue Code,is updated quarterly. The first disk,which has everything else, is updatedmonthly. ew material is integratedinto the old data base, and new diskssent out to replace the old. CD-ROMsubscribers will never have to filenew loose leaf pages again. Interimupdates will not work more than 60days after the issuance of areplacement update. The final updateof the year, however, is an archivedisk intended to be useful inperpetttity.More Disks

In addition to the two diskStandard Federal Tax Reporter, wealso received one disk of BTRdecisions (not available from CCH inpaper), a two disk set of "Tax CourtRegulars" from 1942 to date, fourdisks of IRS Letter Rulings andPositions, starting with 1954, twodisks of Tax Court Memoranda, and athree disk set of U.S. Tax Cases. CCHalso publishes Revenue Rulings andRevenue Procedures, Selected IRSPublications, and the InternalRevenue Manual, each on a separatedisk. Multi-disk sets are arrangedchronologically, so that only the lastdisk in the series need be updated.Updates are issued monthly,quarterly or annually, dependingupon the publication. All of the disksuse the same CCH search software.

Anyone purchasing all 19 diskswill quickly tire of shuffling disks.We assume that tax lawyers will soon

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failure to disclose adverse reactions"instead of some carefully craftedcombination of "OR", "RNO" II +n""-p" "!" and "-". The new systemwill even rank cases according to thelikelihood of applicability to theentered problem, with the "best"cases towards the top of the list. Auser will be able to switch back andforth between the boolean interfaceand the natural language interface,and can even use combine naturallanguage and EZ-Access.

Included in the new system is auser accessible thesaurus which canbe used to broaden the search. Wethink the new thesaurus would bejust as useful to boolean searches;West agrees, and is hoping to add thethesaurus to the boolean interfacesome time in the future.

The natural language interface forcase law only was "rolled out" to the500 largest law firms in the countryOctober 1, and will eventually catchup with every Westlaw subscriber.Any direct subscriber who wants touse the natural language interfacebefore West has provided training cancall West's 800 number and have heraccount adjusted to use the newsystem. There is no additional charge.

West hopes to extend the newinterface to the entire Westlawdatabase, but would not release atime table.

migrate to multi-station CD-ROMcarrousel which can maintain each ofthe disks, and more, on-line at thesametime.Pricing I Value

CCH's CD-ROM pricing is so fullof bundles and options that wehesitate to do more than present someguidelines. In general, a CD-ROMproduct will cost no more than thecomparable print product, but userswho already have the print versioncan obtain the CD-ROM at asubstantial savings. A nominalannual price for a two yearsubscription to the CD-ROM versionof the Federal Tax Reporter, forexample, is $1,290; the comparableprice for the printed version is $1,420.Purchase both, and the CD-ROM isonly $380. Other "deals" may beavailable. Ask.

Any of the CD-ROM products canbe networked upon payment of asurcharge. An office with 1 - 4 taxprofessionals pays 115 percent of thestand-alone price for the networkversion; a 50 tax professional officewould pay a 50 percent surcharge.

As these disks not only permitresearch from anywhere in the officebut save substantial shelf spacing andupdate filing costs, we consider themto provide excellent value.On-Une News

We took some time out this weekto chat with the folks at both Westand Mead. The Mead announcementwas that the five attorney minimumon the single state flat fee MVP Lexisbilling has been lowered to three, atleast for the State of New York. Solepractitioners and lawyers in otherstates should demand equaltreatment.

The West announcement was moreinteresting. Nter years of work, anduntold amounts of research costWestJaw is adding a natural languageinterface as an alternative to thetraditional boolean interface. Thepress conference was replete withwords like "heuristic," "probabilistic"and "algorithm", more familiar toartificial intelligence scientists thanlegal researchers. But we didunderstand that it will soon bepossible to select a case library andenter "Is a pharmaceuticalmanufacturer liable for damages for


LAW, LITERATURE & LAUGHTER

Law, Literature(But no Laughter,This time Only)By Victor A. Fleming

The eat's in the cradle and thesilver spoon,Little Boy Blue and the man inthe moon-"When you coming home,Son?""I don't know when,But we'll get together then,

Dad.You know we'll have a good

time then."-Harry Chapin

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

In those sad words I tookfarewell.Like echoes in sepulchral halls,As drop by drop the water fallsIn vaults and catacombs,they fell; ...

-Alfred, Lord Tennyson

October 1992 -- Allowing my eyesto dose gently and my mind to relax,I see across the years a seven-year-oldboy with a baseball glove larger thanhe is. The grown-up man, in his 40'stosses the ball up and hits a fly.Doing as he was taught, the boyglides underneath the descendingball, raising the glove. And Father

was there to ease Son's pain with theball somehow missed the glove andstruck Son's forehead instead.

Father would go on to greaterachievements, as coach of the littleleague team when Son was in hisninth year. And, in retirement fromcoaching, Father yelled loudly forSon's teams in later years-witnessing kick-offs, home runs,sprained ankles, and busted chins. Invictory and defeat, Father stood bySon -- always there for such supportas was needed.

Father smiled and pretended tounderstand when Son learned aboutgirls (and thus had less time to spendwith Father). Father likewise seemedto comprehend when Son chose acollege half a country away fromhome. And Father paid the tuition.

Then they got together again a fewdays or years later and asked, "Wheredid the time go?"

They figured it out. Son had gotbusy and gone off to law school,married, settled in Arkansas, andstarted having children. Father wasnow a grandfather, Son a father. So,for the first time since little leaguebaseball, they had something incommon again.

Father had passed three score andten when the two of them first playedin the Father/Son Tournament. Forfour years they played, and did

respectably. Then, a little trouble setin - of the heart variety. But nothingthat could not be overcome. Andtheir visits became more frequent.Their friendship grew, in ways thathad not occurred before.

For instance, as Father had alwayspredicted, Son had become an AfterMeal Speaker. And in the townwhere Son was born, in Father's 79thyear, Father sat at table and listenedas Son gave the After Meal Speech.And Father seemed quite proud.

And there were things Son wantedto ask Father -- about the old days.And there were things Son wanted totell Father - like how proud he wasof him.

For, you see, Father had taken toworking in a sporting goods store,with a bunch of young folks (someeven younger than Son). And whenSon would talk to these people, theycould not but remark how muchFather's very presence in theorganization meant to all concerned.And that made Son feel very good.

Son perceived that Father wasgoing about the sporting goodsbusiness -- selling baseball gloves tomothers and fathers and children;outfitting soccer teams; measuringtennis shoe sizes -- with the samesense of excellence andprofessionalism with which Fatherhad gone about the work of banking

and finance before his first and

LAWYERS' MARTWA TED: Southwest Reports (Arkansas Cases) or Arkansas Reports.Also, Arkansas Digest, Shepherds Citations and Am. Jur. Legal FomlS. 9685557.

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second retirements years before. ButSon did not exactly get the words outabout how proud he was.

And then last Thursday, the callcame that Father was gone. And Sondid not feel good about that at all.For Son was not ready to let Father tosuch a thing! Had not Son justspoken to Father yesterday? Father'splans, he had said, included the 1993Father /Son Tournament. Andshowing Grandson how to pitch andcatch. And making even morefrequent visits to Son's home inArkansas.

But Son's spirit was uplifted byfriends, who brought their hearts andtheir prayers by to say they cared.Father's friends included peers fromthree professions. And those whocried the hardest were the youngfolks from the sporting goods store,and the mothers and fathers andchildren. But those who will misshim the most live in the home of anArkansas lawyer.

Son expresses his thanks to thosewho get the message.

ELIJAH ANSON FLEMING, JR.June 21, 1913 - October 15, 1992

© 1992 by Victor A. Fleming


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EXECUTIVE DIRECTOR'S REPORT

By William A. Martin

--

Eight C's pius two X's equal Csquared, or how to practice law andget a life - this is a formula forsuccess as a person and as C1 lawyerwhich David L. Nixon, formerPresident of the New Hampshire BarAssociation, shared with attorneysattending an Ethics and ProductsLiability Litigation seminar at lastsummer's American Bar meeting.

Each letter stands for thebeginning of descriptive words thatprovide us with images of goals,approaches, attitudes, andachievements we should strive for.What follows is my distillation andof embellishment David Nixon'swords and ideas.

Commitment. When we enter intoany activity, be it the practice of lawor family activities or communityinvolvement, we must have thecommitment to be the best we can be.Representing clients with "OlympianZeal" is the only acceptable standard.

Competence. Ethical standardsdemand we be competent when weundertake to handle another'sproblems and causes. Constantstudy, practice, planning and observation are necessary to maintain it.Along with being competent wemust know our limitations, knowwhen we are not competent tohandle a particular problem andwhen we must refer the matter orassociate someone who is competenton that subject.

Compassion. Clients deserve toknow by our acts and our words that


we are concerned and care about theirproblems. Genuine welcome to ouroffice, continual follow-up andexplaining what is happening to theircase are ways we make sure we careand they know we care.

Civility. Courtesy and beingconsiderate and thoughtful are otherdescriptive words for this attribute.Civility toward opposing counsel,their clients and the courts lubricatesthe judicial machinery. We can domuch through cooperation andagreement on providing Wormation,time extensions, and stipulationsrather than use extensive formaldiscovery and motions to contesteverything. It behooves us to worktogether to narrow the issues which ajudge or jury must decide and saveeveryone time, money and anguish.Another side of this coin is being everalert to say "thank you,""congratulations," "good job," andsimilar things which make living andworking together easier.

Charity. In many ways what wegive away we possess more thanwhat we keep. We have been soblessed to be lawyers that one waywe recognize that blessing is to giveof our money, our possessions and,even more importantly, of our time incharitable endeavors, including probono work, to those individuals andorganizations which need our charity.

Concern. There is no place forapathy or selfishness among lawyers.We must think about and beconcerned with making our

profession and our comn1unities,local, national and global, better andthen translate that concern intoworks.

Confidence. In everything weundertake we can project confidencewhen we know we have prepared,have practiced and are ready tocomplete properly the tasks we wantto accomplish.

Common Sense. We probablynever would have gotten this far ifwe didn't have common sense. Itremains for us to always use it-tosay and do what makes sense and, inShakespeare's words: "To thine ownself be true."

To these eight C's we add twoXiS: Extra-Curricular Activities,things that have nothing to do withthe law, fishing, golf, recreationalreading, travel, church involvement,and a multitude of other activitiesthat clear and refresh our minds,along with Exercise, walking,ambling, jogging, swimming, tennisor other vigorous activities whichbenefit both our body and our brain.

Add up Commitment, Competence, Compassion l CivilitYICharity, Concern, Confidence andCommon Sense plus throw in ExtraCurricular Activities and Exercise.The results equal C2, Completenessas a lawyer and a person andContentment with what we are andwhat we have achieved each daywhkh provides an ability to handlestress and enjoy life.

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reporting like this misleads the public,denying it the information necessary toparticipate rationally in the crucial societaldebates concerning the environment.Increasingly, the legal community inArkansas serves as the liaison between anaroused public and government agencies.The purpose of this article is to convey topractitioners the perspective that is missingfrom the current dialogue onenvironmental issues in Arkansas.A Brief History ofEnvironmenta.l Regulation

A. Common Law NII;sallce andCOlIslillltiollnl Property Rights TI,e mother ofall environmental regulation is the commonlaw nuisance action. Sic utere tllO Ilt aliemun'1011 laedas: Use your own property in such amallner as not to injure that of another. Themirror image of this common law principleis that a property owner may use his ownproperty as he sees fit as long as no tangibleinjury to another's use and enjoyment of hisproperty results. John Locke translatedthis common law tradition into a principleof natural law that limited the absolutepowers of monarches. The FoundingFathers, in tum, adopted large portions ofLocke's political philosophy, including hisdeification of property rights, as inalienableconstitutional rights for the fledglingAmerican republic: "Government isinstituted no less for protection of theproperty lhan of the persons ofindividuals." James Madison, The FederalistPnpers, No. 54 (1788).

When joined with capitalist economics,this principle served an expanding nationwell. While resource-depleted Europeanpowers resorted to adventures inimperialism to preserve their mercantilisticlife styles, the United States capitalized anddeveloped the vast continent in its ownbackyard. A theory of property rights bornof English feudal traditions - along with aconvenient American version of ManifestDestiny - sparked and sustained theexplosive economic development of NorthAmerica. It hardly mattered to anyone atthe time that this political doctrine wasantithetical and downright fatal toindigenous Americans' way of life.

The uneasy marriage of Locke's politicalphilosophy and the laissez {aire economicsof the late-nineteenth and early-twentiethcenturies produced such infamousanomalies as Herbert Spenser and Laelwerv. New York, 198 U.s. 45 (1905). The GreatDepression rudely exposed the downsideof the Industrial Revolution, revealing theinequities inflicted on families,communities, labor, and other traditionallegal institutions. One of the mostsignificant legal developments of thetwentieth century was the reassessment ofpreviously unquestioned empirical andlegal cornerstones of the nation's economy.


Beginning in the 19305, aU facets of the lawevolved to allow government the latitude toalleviate the painful transition of anagrarian society to one that wasincreasil'lgly industrial and urban.

The environmental consequences of theIndustrial Revolution are a more recentrealization. It was not until the Sixties thatcautionary critics such as Rachel Carsonbegan characterizing the modern economicethic as ultimately suicidal. The societalresponse was astoundingly swift, perhapsbecause the accumulating evidence ofwidespread degradation of the water, airand land by unfettered exploitation was sodramatic.

For instance, just before noon on June22,1969, the Cuyahoga River in Clevelandburst into flames. The cause: unregulateddischarges of industrial and municipalpollutants into the river. The incidentprompted this stinging commentary bysongwriter Randy Newman on the powermankind now exerted over a river, and byextension, over all of nature:

The Lord can makt: you Lumble,The Lord can make you tum,The Lord can make you overflow,But the Lord can't make you burn.

Randy Newman, lEBurn On:'Snil Awny (1972).

The burning Cuyahoga also illustrated thepractical limits of common law as anadequate response to modern daypollution. The typical nuisance action dealswith a readily identifiable plaintiff anddefendant, and causation issues areconsidered simple issues of fact in theprovince of the jury. The most dramaticincidents of modern-day pollution,however, often defy traditional causationtests. In the Sixties, it was difficult ordownright impossible to determine whichof hundreds of polluters torched theCuyahoga or were slowly killing Lake Erie.Similarly, common law or existing statutescould not assign or apportion liability forthe wrongful death by air pollution ofeighty New Yorkers during a four-dayperiod in 1966.

By the close of the Sixties, it was clearthat neither common law nuisance doctrinenor existing statutory authority wassufficient to preserve the environment orprotect public health. The next stage ofenvironmental regulation was at hand.

B. Tlte Age Of Polllltioll COlltrol In 1970three events iJlustrated a sharp break fromprevious environmental policies. On NewYear's Day, 1970, President Nixon signedinto law the ational Environmental PolicyAct of 1969 (NEPAl. On April 22, 1970, thefirst Earth Day celebration was held,dramatically illustrating the surge in publicawareness of environmental issues. Finally,in December 1970, President Nixon byExecutive Order created the EnvironmentalProtection Agency.

A flurry of momentous environmentallegislation soon followed. In 1970, Congresspassed the first version of the modernClean Air Act. In 1972, Congress overrode aNixon veto and passed the Clean WaterAct. In 1976, Congress addressed thegrowing concerns about management ofhazardous and solid wastes in the ResourceConservation and Recovery Act. Finally, in1980, responding to problems identified inLove Canal, New York, and similar sitesaround the nation, Congress passed theComprehensive Environmental Response,Compensation and Liability Act, morecommonly known as the Superfund Act.

The substance of the Seventies eralegislation and implementing regulationsaccepts the premise that some pollution isan inevitable by-product of modernenterprise. The discharge of pollutants tothe water, air or land is "controlled"through a complicated mixture oftechnology-forcing and health-basedregulations, enforced by a system of stiffstrict liability sanctions. In general.environmental regulntion of the Seventiesvintage attempts to determine what thewater, air and land can stand as anaccommodation to economic developmentwithout degrading certain health-based andenvironmental uses.

In the early Eighties, even as theexcruciating details of the pollution controlstrategy were still under construction, theReagan Administration sought to dismantlethe environmental initiatives of theSeventies. For instance, in 1981-1982environmental enforcement initiatives bythe federal government were curtailedsharply as compared to previous years. Inthe aftermath of the Gorsuch/Lavellescandals, however, the federalgovernment's commitment toenvironmental enforcement wasrevitalized. By 1989, enforcement activityby EPA had increased four-fold over the1982 levels in most areas. "EnforcementAccomplishments Report: FY 1990,"U.S.E.P.A., 1-3 et seq.

Even with increased enforcement,however, the pollution control strategy ofthe Seventies came under increasing attackin the Eighties from both sides of theenvironmental debate. EnvironmentalistBarry Commoner ironicaJIy uses the samearguments often made by industry againstpolJution control regulation:

The u.s. environmental programitself is not only ineffectual but alsoenormously - and unnecessarily complex and costly. B. Commoner, MakingPeace With The Plnllel 56 (990).

Even commentators who credited thepast twenty years of environmentalregulation with achieving progress incleaning up the air and water wereprepared to abandon the premise that

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pollution is an inevitable by-product ofeconomic activity. See e.g., Sen. Al Gore,EArth In The Balance 109 (1992). Most aitiestraced the shortcomings of twenty yean; ofpollution control regulation to anearsighted choice of targets:

In the U.S., which has a set ofenvironmental statutes second to none in theirstringency, and where for the past 15 years pollafter poll has recorded the American people'sdesire for the majority of the populationparticipates in the industrialized world's mostwasteful and most polluting style of life.

Ruckelshaus, Toward A SustainableWorld, Scientific American, September 1989,166,169.

No one was suggesting that theextensive mechanisms of pollution controlshould be abandoned; indeed, as long associety generates waste and dischargespollutants, a control strategy is essential. Id.After twenty years of pollution control,however, both environmentalists andindustrialists appeared ready to reconsiderthe economic orthodoxies concerningenvironmental protection. Thus, by 1990,the stage was set for the next evolutionarydevelopment of environmental regulation.

C. Beyond Polllllion COlllrol. Thetwentieth anniversary of Earth Day in 1990revealed that the public's concern forenvironmental issues was morepronounced and widespread than in theSixties and Seventies. The governmentalreaction in 1990 was more tentative than in1970, but has the potential for being just asrevolutionary.

The Pollution Prevention Act of 1990recognizes a growing trend in the area ofenvironmental regulation - away from apollution control strategy to one stressingsource reduction. The Pollution PreventionAct - 42 U.s.C 13101 el seq. -like NEPAin 1970, is deceptively insubstantia1. Thesubstantive provisions of the Act merelycharge EPA with the task of gathering anddisseminating information about "sourcereduction," defined as any practice thatreduces the amount of hazard caused bythe release of any pollutant into theenvironment. The crucial language of thePoUution Prevention Act, however, is the

statement of congressional findings andpolicy.

A new major premise for environmental regulation in the Nineties is statedin 42 U.5.C §13101(a)(4):

Source reduction is fundamentallydifferent and more desirable than wastemanagement and poUution control. The I EPA)needs to address the historical lack ofattention to source reduction.

A subsequent congressional findingdeclares that the modest initiatives of thePollution Prevention Act are merely u a firststep" toward meaningful source reduction.42 U.S.c. §13101(a)(5).

The most significant provision of thePollution Prevention Act is the statement ofcongressional poLicy set out at 42 U.S.C.§13101 (b) . Here, Congress formulates ahierarchy of regulatory alternatives foraddressing environmental pollutants. Themost preferred measures are sourcereduction or prevention and recycling; theleast preferred are treatment and disposal.With this policy statement, Congressdemotes the control strategies of the lasttwenty years, including exhaustive statutesand regulations, to the status of leastfavored alternatives. Instead, the primarythrust of environmental regulation is to beturned into the relatively uncharted watersof a pollution prevention strategy.

Congress's first foray into substantivepollution prevention was not far behind.Like the Seventies, the Nineties began withthe Clean Air Act. As the Act turns to thethorny question of acid rain, Congress onceagain recites its commitment to a poUutionprevention strategy - §7651 (b) - then enactsa highly complex and unprecedentedsystem of allowances for sulfur dioxideemissions that can be bought and sold ascommodities in a free market. 42 U.S.C.§7651b.

The alJowance system was developedthrough negotiations between the BushAdministration, the EPA, andrepresentatives of the EnvironmentalDefense Fund, one of the more aggressiveand effective environmental action groups.The legislation was touted as a means toreduce the pollutants that produce add rain

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by half through the influence of free marketforces. Recent reports indicate that theChicago Commodities Exchange isconsidering opening its market to the tradein pollution credits.

Some environmentalists have brandedthe allowance system as a betrayal.Commoner, for instance, characterizes theallowance system as U a free market inpollution." In his opinion, the only effectiveinstruments of pollution prevention areproduct bans or direct government micromanagement of technological productiondecisions. See Commoner, supra at 188-189,214. Will a regulatory strategy relying onthe enlightened impulses of thecommodities exchange result in ameaningful reduction of sulfur dioxideemissions, or will Commoner's version ofenvironmental martial law be necessary tocontrol acid rain? It is too early to teU. Theschism in the environmental movementover the acid rain provisions, however,reveals that a pollution prevention strategyinvolves difficult and controversial choicesbetween the fortuitous market forces of freeenterprise and the more coercive policepowers available to government.

The Clean Air Act also declares thatimplementation of the pollution preventiongoal is primarily the responsibility of theStates. 42 U.S.C §7401(a)(3). Thus, as is thecase with most federal environmentalprograms, the pollution preventionmandate has been laid at the doorsteps ofthe States, with fundamental questionsabout the scope of the concept stillunresolved.Arkansas Issues

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regulation. If PC&E were judged by thebenchmarks of a control strategy, the Stateof Arkansas would receive highenvironmental marks. In the last year,however, PC&E has endured demoralizingattacks on its regulatory credibility at atime when it is registering significantsuccesses.

Campaign hyperbole aside, mostcriticisms reveal that PC&E is not beingjudged against its mission of pollutioncontrol, but rather an iIl-defined notion ofpollution prevention. tn many respects, therecent attacks on Arkansas' envi.ronmentalrecord can be traced to the fundamentalquestions surrounding aU environmentalregulation in the Nineties. For instance,should the development of the poultry,swine and dairy industries in WestArkansas be limited or halted throughenvironmental regulation? Should PC&Epermit med.ical waste disposal capacity inCentral Arkansas in excess of the State'sneeds? To what extent shouJd a permittingdecision by PC&E be swayed bynontechnical concerns such as the effect onsurrounding property values or publicacceptance?

Each of these questions represents theclash between the autonomy traditionallyafforded free enterprise and an emergingenvironmental ethic. Whenever these broadsocietal lines of thought have a stake in anenvironmental controversy, the SupremeCourt's guidance in Commission 0/1 PollutionControl & Ecology v.james, 264 Ark. 144, S68S.W.2d 27 (1978) should be consulted.

In james, the PC&E Commission haddenied a landfill permit because, ;'lter alia,there was no "demonstrated public orprivate need for the landfill." The Supreme

Court affirmed a Circuit Court's rcvcrs..'ll ofthe Commission's decision and in so doing,unequivocally stated that whether aparticular facility was "needed" was noneof PC&E's regulatory business:

(lit is clear that the appellee is theowner of the property and he has a fundamentaJright to engage in a lawful business so long ashis conduct conforms to whatever regulationsmay be in existence in the public'S interest. ...ITlhe Arkansas Legislature did not intend for theCommission to require an applicant todemonstrate that he had customers or users forhis landfill before he is enHtled to a permit..Indeed, under the enterprise system, the right orprivilege to pursue a legitimate occup.:'1tion is notpredicated upon an affirmative showi.ng to aregulatory agency the venture will be a success.Id.

Thus, the free enterprise system and thefundamental rights of property owners canbe invoked as curbs upon PC&E'sreguJatory discretion. james also, however,recognizes that property rights have toyield to statutes and regulations adopted inthe public interest. In this regard,developments subsequent to james areinstructive. After the 1989 and 1991legislative sessions, "need" is now a pivotaJissue in landfill permitting. Every permitapplication for a landfill now must beaccompanied by a Certificate of Need fromthe regional solid waste management boardwith jurisdiction over the site. A.CA. §8-6706. Note that the General Assembly chosea specially created local governmental bodyrather than PC&E as the decision maker fordeterminations of "need."

James and its aftermath demonstrate theimportance of the legislative processes. Theprescriptive detail of the GeneralAssembly's 1991 solid waste legislation isnot typical. Generally, environmental

legislation in Arkansas is best described as"enabling": the legislature passes an outlineof broad authority for PC&E and expectsthe agency to fill in the details throughadm.inistrative rule-making. In contrast,PC&E regulations cover almost every areaof environmental concern, incorporating byreference volumes of federal regulations,then adding provisions specific toArkansas. The organizations that haverated Arkansas environmental policy lowin national rankings have never lookedbeyond the enabling outline provided bythe General Assembly. Practitionersconcerned about environmental issues inthis state should not make the samemistake. In a state where the frequency andduration of legislative sessions areconstitutionally restricted, PC&E'sadministrative rule-making process is asimportant, if not more so, that thelegislative process itself.

Although PC&E is exempted fromcoverage under the ArkansasAdministrative Procedure Act, its rulemaking procedures are essentiaUy identica.lto those set out in the APA. Typically,regulation changes are submitted by theDepartment staff to the PC&E Commission.These regulations must pass through areview process that includes anopportunity for public comment and staffresponse. Any difference with the ultimateregulation proposed by the staff may b~

argued orally before the PC&ECommission.

PC&E also allows the right of thirdparty petitions for rule-making. Evenduring the recent period of environmentalawareness, this power has been invokedonly twice in the last five years. When the

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outrage over commercial-scale medicalwaste incineration erupted in mid-1991, noone petitioned for a change in theadministrative regulations that compelledPC&E's controversial actions. In tead, thelegal chalJenges in that controversy focusedon the broad definitions and delegateauthority set out in enabling statutes, alegal tactic similar to challenging thereasonableness of a speed limit in trafficcourt.

Rational environmentalism must makeits presence felt before the biennial sessionsof the General Assembly, and in theadministrative rule-making process that isconstantly in session. In these forums,however, Arkansas environmentalists oftencomplain about the influence of wellfinanced and organized industry groups onthe legislative processes. The existence oflobbyists, however, is simply a fact of life inmodem government:

Those adversely affected by[environmentaJ regulation), although they maybe a tiny minority of the population, often havedisproportionate influence on public policy. Ingeneral, the much injured minority proves to be amore formidable lobbyist than the slightlybenefitted majority. Ruckelshaus, supra at169.

Lobbying is not going to be bannedfrom representative government; therefore,environmentalists must become effectivelobbyists. This means making a case tolegislative bodies based on science andeconomic foresight, not theatrical displaysdesigned to impress the media. Asdiscussed below, the prescriptionssuggested by the latest trends inenvironmental regulation have literallyearth-shaking legal and economicimplications. othing less than thecredibility of progressive environmentalism in Arkansas is at stake.Political Ecology

The Sixties marked the first time thathumankind viewed its home from outerspace. This perspective - now available onposters, T-shirts, and the dust covers of bestsellers - reveals the planet as a miraculousbut finite cosmic particle: a commu.nity, nota commodity. After thirty years, this imagenow permeates the public psyche andforces a re-examination of several economicand legal orthodoxies.

For instance, increased environmentalawareness has produced a new perspectivefor judging economic development.Proponents of a philosophy of "sustainablegrowth" argue that the mechanics of freemarket capitalism often do not account forthe debits accrued from decades of treatingthe planet as an infinite industrial resourceand waste bin. The founder of ScientificAmerican has observed that an economydriven by an "invisible hand," which

supposedly distills aU individual econonUcmotives for consumption, profit and well~

being into wise societal policy, may beblind to issues of long-term and globalscope:

People only live once, and even the 70plus years of present expectation are neeting. Inthe contest over who gets the electricity and whogets the poUution, now and not in the future, it isto the ... political forum rather than the marketthat contenders must repair. For these two

functions, self-governing people have yet to

perfect their political institutions. G. Piel, OnlyO"e World 94 ( 1992 ) .

In the last three decades, theenvironmental ethic has matured from acultist ideal into a societal imperative. Whatwill folJow in the field of regulation is ashift in emphasis from a palliative controlstrategy to correcting the economic myopia~at rna kes pollution inevitable. Somehow,the environmental imperative must begininfluencing:

[Tlhe millions of daily decisions thaiare the nerves and sinews of Adam Smith'sinvisible hand, ... address(ingl the deficiencies ofour current methods for defining what isprogress and what is absurdity. A. Gore, Silpra

at 195.As former EPA Administrator William

D. Ruckelshaus observes, "lmJodifying themarket to reflect environmental costs isnecessarily a function of government. "Ruckelshaus, supra. At the national level,the acid rain compromise in the 1990 CleanAir Act illustrates the complexity andcontroversy of the new approach. Similarissues will be addressed in Arkansasregarding, for instance, the state's bullishanimal husbandry industry and itsdepressed oil industry. How areenvironmental concerns regarding theseactivities resolved when in conflict with theexpectations traditionally associated withfree enterprise? In Commission on PollutionCOlltrol & Ecology v. James, supra, theArkansas Supreme Court earmarkedconflicts between private businessexpectations and public environmentalneeds as p:>litical questions. In other words"many of Arkansas' most urgentenvironmental questions in the inetiescannot be answered through executive fiatin response to discrete controversies.Instead, the burden of initiative lies inlegislative forums.

Before the General Assembly, Arkansasenvironmentalists can no longer indulge inthe luxury of being outsiders looking in.Environmental interest groups played aprominent role in the 1991 reguJar sessionand already are preparing for 1993.Environmentalists, however, mustrecognize that their worst enemies may bethe few fawning journalists who reduce thecomplexity of environmentaJ regulation to

an eighth grade intellectual level andattention span. Environmentalism mustavoid becoming the victim of its ownp:>pular success and renounce its tendencyto reduce the cause to bite-sized nuggetssustaining hungry for scandals orcatastrophes. When the media paintsenvironmental issues in broad strokes ofblack and white, gains in the press becomeobstacles that must be surmounted to passmeaningful legislation.

The future of environmentalism inArkansas lies beyond newsworthiness, inthe more difficult but far more lastingcourse described by Justice Holmes:

I have had in mind an ultimatedependence upon science because it is finaUy forscience to determine, so far as it can, the relativeworth of our different social ends. (lit is ourestimate of the proportion between these, nowoften blind and unconscious, that leads us toinsist upon and to enlarge the sphere of oneprinciple and to allow another to graduallydwindle into atrophy. O.W. Holmes, Jr."Law In Science-Science In Law," CollectedLegal Papers 242 (920).

Senator Gore states the same principle inenvironmental terms: "As changes in ourthinking about the environment take place,we can expand the range of what ispoHtically imaginable." Gore, supra at 178.In other words, the crucial environmentaldebates of the Nineties - globally,nationally, and in Arkansas - are notmelodramatic battles pitting good againstevil, or a powerless public against powerfulspecial interests. Rather, what is at stake isan evolutionary reassessment of howhuman activity impacts the environment,and what government should do tomitigate the damage.

In 1991, the Arkansas legislature provedit will react positively to environmentalinitiatives if the proponents of progressivelegislation demonstrate both reason and aconstituency for their cause. Even moreprogress is necessary, but possible only ifthe political djalogue in Arkansas maturesbeyond glib doomsaying, gamesmanshipand personality conflicts. Everyoneconcerned about the planet and the NaturalStale should be aware of the legal,economic and constitutional implications ofthe latest evolutionary stage ofenvironmental regulation. Legislativedecisions on these issues will depend ondeliberative dialogue between rational Icitizens, not intemperate rhetoric only fitfor headlines and sound bites.

Steve A. Weawr is the Chief Legal Counselfor the Armnsas Department of PollutionControl & Ecology. He has writ/en severalarticles for The Arkansas Lawyer andserves on the Environmental LawCommittee of the Arkansas BarAssociation.

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