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    Book Reviews

    Sarah HatchTimothy McAllisterTerry PeppardMichael Gratz

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    Wisconsin Lawyer
    Vol. 78, No. 7, July 2005

    Book Reviews

    book: Cultural PropertyCultural Property Law: A Practitioner's Guide to the Management, Protection, and Preservation of Heritage Resources

    By Sherry Hutt, Caroline M. Bolanco, Walter E. Stern & Stan N. Harris (Chicago, IL: ABA Environment, Energy & Resources Section, 2004). 288 pgs. $99.95. Order, (800) 285-2221.

    Reviewed by Sarah Hatch

    The term "cultural property" encompasses objects such as buried treasure, priceless art, sacred religious items, and ancestors' graves. This book examines the laws that govern things that are capable of capturing one's imagination, heart, and soul.

    Cultural Property Law: A Practitioner's Guide to the Management, Protection, and Preservation of Heritage Resources is a good tool for museum board members, anthropologists, artists, and art dealers, and the attorneys who represent them. This book provides an accessible and concise summary of the myriad legal issues pertaining to cultural property. These include, among others, the laws governing museum management and care of collections, the repatriation of Native American funerary and religious objects, and the impact of theft on the arts trade, archaeological digs, and shipwreck recoveries. To achieve this brevity, however, the authors sacrificed the depth of discussion that an experienced practitioner might find useful.

    The book's organization facilitates its utility. Most of the chapters examine the federal and state laws governing the management of cultural property, whether the property is found on private or tribal land, in parks, or underwater. The remaining chapters focus on the trade and movement of art and other cultural property within the United States and abroad. Each chapter ends with an "Issues" section that elucidates potential issues arising under the examined laws and a "Frequently Asked Questions" section. These sections showcase the diverse experiences of the book's attorney authors.

    Given the potential emotional impact of attempts to recover or keep cultural property, greater attention to case law could have made the book more interesting to read, albeit less useful as a quick reference. However, readers desiring such content or more depth will find the book's bibliography and list of Web sites to be rich resources for further reading or study.

    Sarah M. Hatch, Illinois 1999, is an associate in the Milwaukee office of Quarles & Brady LLP. She focuses her practice on intellectual property licensing, copyright law, and art law.

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    Go Directly to Jail: The Criminalization of Almost Everything

    By Gene Healy, editor (Washington, DC: Cato Institute, 2004). 192 pgs. $17.95. Order, www.nbnbooks.com.

    Reviewed by Timothy McAllister

    Federal regulation run amok, duplication of existing state laws, the erosion of Constitutional provisions, and the expansion of federal regulation to a degree of legal incomprehensibility are the central themes of the collection of essays published as Go Directly to Jail: The Criminalization of Almost Everything. This book is comprised of five essays that specifically target federal medical legislation (HIPAA), environmental protections, laws regulating businesses, federal gun control, and the general overextension of federal criminal legislation.

    As might be expected of such a collection, it contains extreme examples that barely pass the "laugh test" of legality, but there are far fewer of these than one would expect. This collection of essays deals head on with the serious issue of the federal government overstepping its bounds in a broad spectrum of issues.

    The individual essays originally were published separately between 1997 and 2003, and one is, thankfully, outdated. One of Erik Luna's two well-written essays deals with the Federal Sentencing Guidelines, which have since been affected by the January 2005 U.S. Supreme Court ruling in United States v. Booker. Many of the same issues that Luna expounds on are further extrapolated in the Court's multi-voiced Booker ruling.

    The mushrooming of regulatory law in the last 30 years has resulted in a system that: is excessively complex (in 1998 the Healthcare Leadership Council president stated that 132,720 pages of federal health care rules and regulations affect the Mayo Clinic); is excessively intrusive (Resource Conservation and Recovery Act section 6927(a) renders it a crime to refuse entry for warrantless searches by EPA investigators); has diminished the concept of intent to break the law (knowledge of a "problem" by line employees implies that the corporation managers had full knowledge of the "problem"); and has diminished constitutional protections (stipulations of the Federal Sentencing Guidelines, which previously allowed evidence considered in sentencing that was not considered by the jury, thereby eroding the Fourth Amendment, and the federal prosecution of laws that should rightfully be prosecuted under the auspices of the state, thereby eroding the Tenth Amendment).

    Go Directly to Jail is a good overview of the increasing number of regulatory laws that result in increased costs of business, squandered governmental resources, an overburdened court system, and the dilution of criminal acts. When the government criminalizes almost everything, it trivializes true criminal behavior.

    Timothy McAllister earned a Masters of Public Administration in 1998 and is a supervisor with the Wisconsin Department of Corrections.

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    Patent, Copyright & Trademark: An Intellectual Property Desk Reference, 7th Ed.

    By Stephen Elias & Richard Stim (Berkeley, CA: Nolo, 2004). 560 pgs. $39.99. Order, www.nolo.com.

    Reviewed by Michael J. Gratz

    This desk reference is a plain English guide to the often confusing and complex area of intellectual property (IP) law. The book starts with a general introduction that breaks down the subject into the four traditional categories of patents, copyrights, trademarks, and trade secrets. The introduction also briefly explains unfair competition, important international IP law considerations, and how the four categories may overlap. As a bonus feature, a useful chart lists creative works, inventions, and so on, and whether they fall under trade secrets, copyrights, patents, trademarks, unfair competition, or "no rights." The introduction ends with a listing of other "self-help" or "how to" IP resources.

    The remainder of the book is divided into sections on patent, copyright, trademark, and trade secret law. Each of these sections contains a more detailed discussion of the IP category based on frequently asked questions (FAQs), followed by definitions of key terms and the full text of applicable statutes for that IP category. Further, the copyright, patent, and trademark sections include sample applications (which are misnamed "Forms").

    The authors use charts, graphs, drawings, and examples with hypothetical fact patterns to clarify key concepts. One criticism is that this work contains a few amateurish, gray-shaded sketches that are difficult to discern and that poorly illustrate the concepts discussed.

    Overall, this book is a good, easy-to-read resource for the IP novice or the skilled practitioner looking to refresh the memory or to explain these complex concepts to a client. Due to the rapid growth and change in this area of law, it is surprising that this book has not been republished every year since its inception in 1996. Nevertheless, for the price, it appears to be a good investment.

    Michael J. Gratz, U.W. 1994, practices in all of areas of patent, trademark, copyright, and trade secret law with the IP boutique firm of Boyle Fredrickson Newholm Stein & Gratz S.C., Milwaukee. He is registered to practice before the U.S. Patent and Trademark Office and is former chair and vice chair of the State Bar Intellectual Property Law Section.

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    The Arbitrator's Handbook, 2nd Ed.

    By John W. Cooley (Notre Dame, IN: National Institute for Trial Advocacy, 2005). 469 pgs. $60. Order, (800) 225-6482.

    Reviewed by Terry F. Peppard

    At more than 450 pages, and with 16 appendices, this text offers much promise. Regrettably, that promise is left largely unfulfilled.

    While the title indicates that the book is aimed at arbitrators, the preface suggests that it is actually intended for a much broader audience, including participants in continuing legal education programs, law students, and arbitration counsel. This attempt to serve all masters causes the work to be too long. A less ambitious undertaking, aimed exclusively at practicing or aspiring arbitrators, would almost certainly have been more effective.

    The text also suffers from incompleteness. For example, the author discusses awards of punitive damages without even mentioning the critical constitutional dimensions of the issue.

    But perhaps the most glaring error in the work is in its treatment of arbitral motion practice. The author, a former U.S. magistrate and assistant U.S. attorney, has imported into a 25-page treatment of this subject (Appendix A) virtually every motion known to federal civil litigation practice but without allowing for the fundamental differences between civil litigation and arbitration. As an example, the text lists ways to analyze a motion to strike pleadings, but it does not note that, because arbitral cases play out in private settings and before law-trained professionals, the core reasons for entertaining a motion to strike irrelevant, frivolous, or scandalous matter from pleadings are not present in arbitration, as these core reasons might be if the same documents were intended to be seen in public proceedings by a lay jury. As another example, the same Appendix A lists ways for an arbitrator to treat a motion for disqualification of arbitration counsel without mentioning that state and federal arbitration laws do not grant arbitrators the power to remove counsel and that the rules of leading arbitral institutions are, accordingly, silent on the subject. The text thus does a disservice to readers, who might have benefited from a mention of the fact that arbitrators do not enjoy all of the powers of judges.

    It is hoped that these shortcomings will be addressed in the next edition of this title.

    Terry F. Peppard, U.W. 1973, past chair of the State Bar Alternative Dispute Resolution Section, practices in Madison and serves as an arbitrator and mediator in business and technology cases both in ad hoc proceedings and for national and statewide ADR institutions.

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    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

    • Annotated Model Code of Judicial Conduct, Art Garwin, editor (Chicago, IL: ABA Center for Professional Responsibility Judicial Division, 2004). 507 pgs.
    • Anatomy of a Law Firm Merger: How to Make or Break the Deal, Third Edition, by Hildebrandt International, (Chicago, IL: ABA Law Practice Management Section, 2004). 208 pgs., CD-ROM.
    • Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Sheila M. Williams and George M. Basharis (Riverwoods, IL: CCH Inc., 2005). 400 pgs.
    • Compensation Plans for Law Firms, Fourth Edition, edited by James D. Cotterman (Chicago, IL: ABA Law Practice Management Section, 2004). 192 pgs.
    • Discovery Problems and Their Solutions, by Paul W. Grimm, Charles S. Fax & Paul Mark Sandler (Chicago, IL: ABA Litigation Section, 2005). 467 pgs.
    • Legal Assistant's Practical Guide to Professional Responsibility, second edition, author/editors Arthur H. Garwin and Kathleen Hamer (Chicago, IL: ABA Center for Professional Responsibility, 2004). 202 pgs.
    • The Lawyer's Guide to Adobe Acrobat, 2d ed., by David L. Masters (Chicago, IL: ABA Law Practice Management Section, 2005). 192 pgs.
    • Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury, second edition, by Jeffrey T. Frederick (Chicago, IL: ABA General Practice Solo and Small Firm Section, 2005). 305 pgs. CD-ROM.