Vol. 77, No. 9, September
Copyright and Publishing Law, Third
By Ellen M. Kozak (New York, NY: Henry Holt & Co.,
2004). 141 pgs. $13.
Reviewed by Prof. Ramon A. Klitzke
Every Writer's Guide to Copyright and Publishing Law should
be on the desk of every writer who has any thought of publishing.
Attorneys interested in publishing law also should read the guide.
When I reviewed the first edition of the guide (63 Wis. Law. 26
(Sept. 1990)) and the second (71 Wis. Law 28 (Feb. 1998)), I pointed out
that the author's extensive experience in educating lawyers and
counseling authors clearly qualifies her to write this book. A published
writer myself, I've met many authors who relied heavily on the earlier
editions of this guide.
The guide is directed to general principles of U.S. law related to
literary works. The 24 chapters include ones on the legal system,
exploiting copyrights, copyright notice, registration and related areas
of law, to mention only a few of the necessary tools for the
author-publisher. The guide will be a continuing resource for authors
and attorneys alike.
Since the 1997 edition, copyright law has progressed immeasurably
because of technological and global market changes. The Digital
Millennium Copyright Act (DMCA) of 1998, the Sonny Bono Copyright Term
Extension Act of 1998, and the Technology, Education and Copyright
Harmonization Act of 2002 are just some of the laws Congress has
With the passage of the 1998 Bono Act, the "life-plus-50-years"
copyright duration became "life-plus-70-years," except for anonymous and
pseudonymous works and works made for hire. Those are protected for 120
years from creation or 95 years from first publication, whichever is
Since publication of the second edition, the U.S. Supreme Court
decided New York Times Co. v. Jonathan Tasini (2001). The Court
held that the Times, absent permission, had no right to sell
articles bought from freelancers to online services. Once an article
appears online, it loses its resale value. But now many larger papers
require such authorization as part of the purchase of the article.
The third edition of the guide is much easier on the eyes than was
the second. The page size is larger and the type font is sharper. A
complete index is included.
I strongly recommend the new edition of Every Writer's Guide to
Copyright and Publishing Law to any lawyer who might face a
question from an author.
Taking and Defending Depositions
By Stuart M. Israel (Philadelphia, PA: ALI-ABA,
2004). 344 pgs. $89. Order, (800) 253-6397.
Reviewed by Dustin T. Woehl
This book purports to be a handy, easy-to-read guide for litigators
at all levels of practice. It is definitely easy and even fun to read.
The author writes with wit and humor, referencing Sergeant Joe Friday,
Rambo, Bill Clinton, Ray Charles, Gary Cooper, Sherlock Holmes, the
Bible, and Bentham. The guide also contains illustrative and often
humorous deposition transcripts. The entertainment, however, bloats the
writing, leaving it rather loose. I sometimes wished the book would make
its point and move on. Also, the discussion is keyed to the Federal
Rules of Civil Procedure, requiring the Wisconsin reader to translate
these to the Wisconsin rules for citation in depositions or in
I first judge this book by its cover, which is physically too firm.
This makes it harder to keep open to read, take notes in, or photocopy.
My copy actually split in two, resulting in loose pages. The book is
organized in four parts. The first and broadest section covers
deposition uses, alternatives, advantages, and drawbacks. This part
should stimulate even seasoned litigators to think creatively about
using depositions in new ways. Part two discusses deposition
fundamentals, rules, principles, mechanics, strategies, practices, and
planning. However, it merely foreshadows the discussion in part four and
could be condensed or eliminated. Part three discusses coaching
deponents. It includes 13 deposition fundamentals and a select 162
essential rules for deponents. Part four could stand alone. It includes
helpful "nuts and bolts" information on taking and defending
depositions, and includes topics such as deposition outlines, transcript
awareness, formulating questions, and dealing with objections. The
checklists in this section will be helpful in preparing to take and
The book also contains several forms, including notices of
deposition, a motion to compel a deponent to answer questions, and a
motion to limit the deposition scope. These should be helpful for anyone
preparing these documents for the first time. The author also includes
the Federal Rules of Civil Procedure that address depositions. This
could help but is probably unnecessary. The actual text of the rules
isn't necessary to understand the related discussions in the book. A
litigator relying on the rules for any other purpose should own or
consult a current official version.
Overall, Taking and Defending Depositions is an
entertaining, thought-provoking, and useful deposition guide. However,
its relaxed and enjoyable writing, too-firm cover, and reliance on the
federal rules rather than the Wisconsin rules make it less handy for one
who litigates in Wisconsin state courts than it otherwise could be.
Uneasy Alchemy: Citizens and Experts in
Louisiana's Chemical Corridor Disputes
By Barbara L. Allen (Cambridge, MA: The MIT Press,
2004). 224 pgs. $22. Order, (800) 405-1619
Reviewed by Peter A. Tomasi
The chemical corridor between Baton Rouge and New Orleans is home to
more than 120 chemical plants, and high rates of cancer and respiratory
illness in the area have earned it the moniker "Cancer Alley." The
area's reputation as an ideal place to site chemical plants because of
its marginalized population and friendly government helped spawn the
environmental justice movement. In Uneasy Alchemy: Citizens and
Experts in Louisiana's Chemical Corridor, Barbara Allen, a
"participant-activist" in environmental disputes, examines the way that
citizen activists and experts of various stripes interact in disputes
over the siting of those large-scale industrial facilities in the
corridor. Using ethnographic analysis of interviews with activists,
citizens, government agency actors, and corporate experts, Allen
analyzes the mixed results of environmental justice challenges and the
factors leading to successful environmental justice challenges.
Allen uses the battle to site a $700 million plastics plant outside
of Geismar, La., as the foundation to a theory of successful citizen
organization and action. Local residents, assisted by outside experts
and the Tulane Environmental Law Clinic, challenged the permitting
decision for the proposed plant. The mix of local citizens temporarily
allied with expert-activists ultimately forced the company to build a
substantially smaller facility on a different site, even though Tulane
Environmental Law Clinic was stripped of most of its capacity to
represent environmental groups by the Louisiana Supreme Court during the
tail end of the permitting challenge.
Although Allen spends a significant amount of time developing a
theory of citizen action, the underlying story of the Louisiana chemical
corridor is the most compelling portion of the book. The unpredictable
mix of race, class, historic business-friendly policies, and endemic
poverty interact in different and sometimes surprising ways. Allen is at
her best when detailing the results of her ethnographic research and
contrasting the different views of all the individual players on the
environmental scene in Louisiana, such as the views of local residents
who distrust large corporations, against the views of other residents
and regulators who questioned the motives and commitment of national
environmental organizations involved in the challenge.
Plan While You Can: Legal Solutions for
By Roger W. Andersen (Toledo, OH: 1stBooks, 2003). 134 pgs.
Reviewed by Cydney Rabourn
A long-held legal maxim states that the bestower of a gift has a
right to regulate its disposal. But history has shown us that planning
ahead for future disabilities and death is often a last minute thought.
Pondering our inevitable demise, it seems, is a thought few of us care
to dwell on. Author Roger Andersen encourages us to change our ways and
provides an easy to use guide in Plan While You Can: Legal Solutions
for Facing Disability, which is his effort to provide to nonlawyers
basic information to help craft individualized solutions for potential
The author describes the book as a tool for both individual and
family planning. It is designed for those who are lucky enough to think
ahead and who are able to make well-informed decisions about the
opportunities available in the realm of disability, incapacity, health
care, and estate planning. Each section provides a list of topics and
questions designed to enable the reader to be an informed member of the
planning process, and encourages planners to be active and creative in
designing an approach that best fits their individualized needs. As the
author indicates, the book is to be used as a reference only and
suggests that proper planning for disability requires a team of advisors
including attorneys, insurance agents, accountants, bankers, and various
other professionals as warranted. At only 131 pages, the book is a quick
A word of caution about this book. Andersen on numerous occasions
encourages readers to come up with imaginative and creative solutions to
their situations without providing a warning that certain requests may
not be capable of being combined with other aspects of the planning
process. For simple family planning, delving into the novel may create
more problems than solutions and may serve to thwart the wishes of the
very people for whom you provide early protection. There also is very
little information provided to the reader about the varying complexities
of each state's estate statutes and regulations. While the author
encourages the reader not to use a cookie cutter plan, he fails to drive
home the point that no state has cookie cutter disability and estate
Andersen does an excellent job of encouraging the reader to think
ahead, to ask questions, and to actively communicate with those who are
involved in the planning process. He also does a good job of reminding
readers that they are not invincible and that taking small steps now can
save money and heartache for loved ones later.
Hiding from Humanity: Disgust, Shame and the
By Martha C. Nussbaum (Prince-ton, NJ: Princeton Univ. Press,
2004). 413 pgs. $29.95. Order, pup.princeton.edu.
Reviewed by Jack Stark
Martha Nussbaum began her career as a specialist in ancient
philosophy. The sweep of her development is evident in her appointments
at the University of Chicago: Philosophy Department, Classics
Department, School of Law, and Divinity School. She also has become a
tenacious polemicist, for example as a defender of disabled persons. She
has combined those interests and others in Hiding from
In the book's first section Nussbaum concentrates on guilt and shame
and their relations to nonlegal concerns. She believes, as do cognitive
psychologists, that emotions and thought are intertwined. She
acknowledges that shame and guilt are, on rare occasions, beneficial but
asserts that they have many negative consequences because they are based
on a repudiation of human imperfection and lead to a denial of humanity
and then to stigmatization of certain groups. That is, their thought
content is nonhelpful.
In the book's second section Nussbaum concentrates on the interaction
between the law and those two emotions. She posits the desirability of a
liberal society, one that fosters human dignity, equality, diversity,
self-actualization, and liberty. From that height she surveys several
areas of the law, including the penalties for homicide, the law of
nuisance and the law of obscenity. She notes that the law both protects
citizens from shame and disgust and uses those emotions as means of
More rigorous editing could have removed some stylistic infelicities
and repetitions. However, her subject is interesting; she is enormously
learned and intellectually subtle and she casts considerable light on
important topics. This book would interest most lawyers who wish to
understand the law in the context of other disciplines, and it would be
particularly attractive to lawmakers and judges.
Common Sense Rules of Advocacy for
By Keith Evans (Alexandria, VA: TheCapitol.Net Inc., 2004).
240 pgs. $35. Order, www.TheCapitol.net.
Reviewed by Jason J. Hanson
For the trial attorney, like everyone else, practice makes perfect.
We develop our skills of persuasion by actually attempting to persuade,
whether in prefiling negotiations, motion practice, appellate writing,
or at a trial. While reading a book could never be an effective
replacement for engaging in these activities, this book may help keep
our skills honed.
The author makes the following promise regarding the book: "If you
devote three minutes a day to reading something in it, then another
seven minutes thinking about what you have read, in two months you will
already be better than 85 percent of the competition." Undoubtedly, a
lawyer will benefit from spending 10 minutes a day thinking about at
least one of the 100 rules of advocacy presented in the book. These
rules vary from the simple "You must dress appropriately" to more
thought provoking ones like "If you don't do re-direct well, it's better
you don't do it at all."
The book presents each rule followed by an explanation of the rule.
The explanations are generally short and sometimes fail to clearly lay
out the logic behind the rule. The book assumes a level of trial
experience on the part of the reader. For these reasons, I would not
recommend this book for use as a trial advocacy textbook or for the new
lawyer. I would fear that a student or new lawyer could either
misinterpret a rule or not know when to refrain from applying a
particular rule in a unique situation.
The rules presented are sound and the book is easy to read. It is
conducive to being read in short increments, as might well be the case
for a busy trial lawyer or for one just using it to brush up. I
recommend that trial lawyers have this book on their shelves for use as
a refresher, in preparation for a trial, or as the basis for daily
reflection on trial advocacy.
Famous and Well-Known Marks, 2d Edition
By Frederick W. Mostert (New York, NY: International
Trademark Association, 2004). 517 pgs. $245. Order,
Reviewed by Jennifer L. Amundsen
In Famous and Well-Known Marks, Frederick W. Mostert,
principal author and editor, and a team of experts from around the world
have compiled a wealth of information on the title subject. Going beyond
a discussion of proper infringement analysis for famous marks, the book
addresses such topics as famous trade dress and "get up," customs
enforcement, rights of publicity, and geographical indications, to name
a few. It also offers individual analyses for many of the more important
commercial countries, written by trademark lawyers (from those
countries) whose names often are familiar. The extensive annotations
include cases from countries in every part of the world, and a table of
cases and alphabetical list of marks put them at your fingertips.
Finally, the book includes appendices with extracts from the more
important sources of supranational trademark law.
I found the anti-counterfeiting section to be particularly
interesting. Rather than simply recounting the issues involved, the
authors actually lay out all the elements they believe are necessary to
prevent, discover, and halt counterfeiting activities. A comprehensive
plan, it covers everything from the importance of exercising centralized
corporate control over the program to cooperating with industry leaders
and local authorities. Those engaged in the design or implementation of
an anti-counterfeiting program can use this as both a source of ideas
and a checklist for the finished product.
Famous and Well-Known Marks is well-written and will be a
valuable resource for some trademark practitioners. For example, I would
recommend it as a reference for in-house counsel dealing with
potentially famous marks or outside counsel who advise them. It also
could serve as a practical guide to foreign law in the countries covered
in individualized sections. Although the book's narrow focus makes it
unlikely to be a practical reference for many attorneys, I found it
appealing based on academic interest in trademark law.
Kill Now, Talk Forever: Debating Sacco and
Edited by Richard Newby (Bloomington, IN: 1st Books, 2003).
662 pgs. Paperback, $20.95; Electronic, $6.95. Order, (800)
Reviewed by Joshua E. Kastenberg
In the history of United States jurisprudence, the prosecution of
individuals belonging to political organizations outside of mainstream
political thought generally has had as much to do with a trial of
ideology as a criminal trial. Moreover, political cases, as opposed to
celebrity trials, have a tendency to leave a lasting imprint on the
practice of law, in part, because such cases are historically viewed as
unfair. Indeed, since the turn of the last century, in prosecutions of
individuals such as Tom Mooney and Julius and Ethel Rosenberg, trials of
ideology underlie the prosecution of the individuals. In a politically
charged environment, questions of guilt or innocence, or a fair trial,
or the decision to charge at all resonate long after a sentence is
carried out. Such was the case of the 1921 trial of Nicolo Sacco and
Both Sacco and Vanzetti were Italian immigrants, and both were
associated with a growing anarchist movement. Indeed, from the end of
the Civil War through the 1930s, the United States experienced a large
degree of political tumult. Moreover, the assassin of President William
McKinley was an avowed anarchist. Both anarchism and communism made
inroads into the country and grew to a point that 1919 became known as
the year of the "Red Scare." Politically powerful "nativist"
organizations seeking to curb non-Western European immigration predated
these communist and anarchist movements. Thus, on May 5, 1920, when
"Italian looking" men were witnessed robbing and shooting a paymaster
and his clerk in Dedham, Massachusetts, the local government was certain
the crime was politically motivated.
The trial of Sacco and Vanzetti resulted in a guilty finding and
death penalty for both. For years afterward questions of their guilt or
innocence, or whether they received a fair trial were debated by
individuals with the highest standing in law, politics, and public
esteem. This list included Supreme Court Justices Felix Frankfurter and
Oliver Wendell Holmes, scientist Albert Einstein, political scientist
Walter Lippman, and author Upton Sinclair.
Author Richard Newby does not directly analyze the Sacco and Vanzetti
trial. The unique structure of the book leaves it to the reader to
determine whether Sacco and Vanzetti were guilty and whether they
received a fair trial. The first two-thirds of Kill Now, Talk
Forever consists of the surviving but incomplete record of trial.
Attorneys versed in appellate practice will appreciate the detailed
objections, statements from the bench, and arguments by counsel. The
formal evidentiary rules familiar today did not exist in 1921, so the
bulk of objections are rooted in competency statements, rather than
numerical rule-based objections.
However, there are readily apparent objectionable issues within the
trial record. For instance the prosecution was permitted to have
witnesses state that certain individuals appeared "Italian," as well as
to present evidence that Sacco and Vanzetti evaded the 1917 draft.
Moreover, jury instructions to the all-male Caucasian jury were lacking
in safeguards currently taken for granted: witness identification,
credibility and bias, character, prior inconsistent statements, and so
on. As in most cases of appellate reading, the trial record is bereft of
information regarding the physical conduct of the parties and audience.
Thus, the reader has to judge whether the defendants received a fair
trial by outdated 1921 standards.
The final third of the book consists of heavily edited written
opinions and statements made by commentators, persons familiar with the
case, and historians since the trial. Finally, Newby poses several
questions to consider regarding guilt or innocence, and whether a fair
trial occurred. While Kill Now, Talk Forever, provides some
insight into the trial, it falls far short of providing enough
information to answer these basic questions. However, studies of
political trials such as the trial of Sacco and Vanzetti should remind
practitioners and the bar alike that the unique prosecutorial discretion
to bring any case to trial, as well as the conduct of a case,
potentially creates a history of confidence, or the lack thereof, in the
administration of justice. This is a reminder as salient today as it was
LawyerLife: Finding a Life and a Higher
Calling in the Practice of Law
By Carl Horn III (Chicago, IL: ABA, 2003). 167 pgs. $30.
Order, (800) 285-2221.
Reviewed by Douglas E. Baker
LawyerLife is one of those books a lawyer might well pick up
from an airport book rack, assuming such books were kept there,
alongside the thrillers by Scott Turow and John Grisham.
LawyerLife is a quality paperback with an attractive cover with
the ABA logo prominently displayed, and glowing reviews across the back
cover. The subtitle promises nothing less than a roadmap to "Finding a
Life and a Higher Calling in the Practice of Law," an idea that few
lawyers, from new associates to senior partners, could resist affording
a second look. A quick riffle of the pages does nothing to dissuade such
a potential reader - the numerous endnotes suggest detailed scholarship,
though they are unobtrusively tucked away at the end of each chapter.
And while it has a certain heft to it, it's not that imposing a book -
having fewer than 200 pages, it's small enough to tuck into a
Written by Carl Horn III, a federal magistrate in North Carolina,
formerly in private and government practice, LawyerLife reads
smoothly, if sometimes a bit stiffly and pontifically, in the sort of
language and tone one would expect from a federal judge at a seminar.
All in all, it reads as well as, or maybe a bit better than, a law
review article or a polished brief, and is less stilted than a formal
judicial opinion. Judge Horn obviously has given the matter a lot of
thought, and he - or perhaps his clerk - has spent a lot of time
perusing the literature on what ails the legal profession, and in
compiling suggested solutions. He has gathered together all the current
phrases and buzzwords, and offers a good overview of the resources that
are - or ought to be - available for troubled lawyers. He also has
assembled "the world's first 12-step program for lawyers," a listing of
principles that should stimulate fresh thinking on the state of the
profession. His discussion of the interrelation of personal and
professional ethics seems especially cogent and compelling.
But for all that, the book is disappointing. The lingering sensation
is of a work "full of sound and fury but signifying nothing,"1 as though all the right words and phrases had been
in place, all the right buttons pushed, but little of substance has been
accomplished. There is too much generalization and glib characterization
of complex issues. One especially jarring example is Judge Horn's
offhand suggestion that toiling on the lower rungs of the legal
profession requires "sweatshop hours" that are "oppressively long,"
requiring associates to "sacrifice their lives to the firm." However
true it may be that associates in larger firms must devote considerable
time and energy to their work, to even suggest that such a working
environment, which after all is relatively well-paid and takes place
mostly behind a desk or in a library, is in any way comparable to that
experienced by pieceworkers in some third-world tennis shoe factory is
an insult to those seriously suffering people, who earn pennies an hour
for standing on their feet all day in real sweatshops, and the
comparison is an affront to anyone concerned with social justice. It
simply exacerbates the public image of a profession that takes itself
and its self-perceived suffering much too seriously.
Similarly, Judge Horn suggests, after building a case as to the
insensitivity, selfishness, and callous nature of those who run those
large law firms and the effect of their actions upon their underlings,
that those senior partners ought to help those poor associates cope by
granting them a lengthy sabbatical. Such a suggestion strikes this
reader as quite unreasonable, a fundamental disconnect between the
premise and the proposed solution, as though those same penurious bosses
are going to let go of three months or longer of billable hours in the
hope that the associates will return recharged and rededicated. However
that may be true in theory, Judge Horn has provided little evidence that
it would work out that way in reality.
The book also offers less in the way of scholarship than it suggests
at first glance. Much of the evidence with which Judge Horn supports his
argument that lawyers are suffering is, by his own admission, anecdotal
or, at best, circumstantial. In fact (and to his credit) he cites one
study in which those authors concluded that "the most valid,
well-designed research has produced little if any support for the notion
that lawyers are unhappy in their work. ... [T]here is no way to
know for sure whether disgruntled lawyers were disproportionately
willing to participate." Similarly, many of the numerous endnotes turn
out to be citations and re-citations to secondary sources, works that
are themselves compilations of data from other works, so that any reader
who wants to further examine the assertions therein would have to dig
very deep indeed to get to the facts. All of which makes for smooth
writing and easy reading, but is of limited verifiable value. The book
is a nice assembly of platitudes and presumptions that one suspects
would not fly very far in this or any other judge's courtroom.
None of this is meant to suggest that Judge Horn is less than sincere
in his concern for the state of the legal profession and those who work
there. The story he shares of his own childhood, in which his mother
committed suicide when Judge Horn was 14, and in which his father, a
successful lawyer and corporate executive, distanced himself from the
family with his work and with alcohol, provides a solid and sobering
example of the tragic impact professional overwork can make on a family.
Judge Horn is to be commended for his recognition of the problem, his
willingness to share his own story, and his evident commitment to making
the profession a better place for all of us. If he practices what he
preaches, one suspects that appearing in his court would be a textbook
example of the way things ought to work.
But that does not make this book work. It is at best worth reading on
its own merits, as a starting point for discussion, as an aid to helping
identify the problems facing the profession. But to the extent that it
promises more than that, it falls short.
1William Shakespeare, The
Tragedy of Macbeth, act 5, sc. 5.
To Review a Book...
The following books are available for review. Please request the book
and writing guidelines from Karlé Lester at the State Bar of
Wisconsin, P.O. Box 7158, Madison, WI 53707-7158, (608) 250-6127, org klester wisbar wisbar klester org.
Publications and videos available for review
- ERISA: The Law and the Code, 2004 Edition,
edited by Sharon F. Fountain & Michael G. Kushner (Washington,
DC: Bureau of National Affairs, 2004). 832 pgs.
- Marketplace Masters: How Professional Service Firms Compete
to Win, by Suzanne C. Lowe (Westport, CT: Greenwood
Publishing Group, 2004). 252 pgs.
- Media Relations Handbook, by Brad Fitch
(Alexandria, VA: TheCapitol.Net, 2004). 368 pgs.
- Women-at-Law: Lessons Learned Along the Pathways to
Success,by Phyllis Horn Epstein (Chicago, IL: ABA Law
Practice Management Section, 2004). 376 pgs.