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    Wisconsin LawyerWisconsin Lawyer
    Vol. 79, No. 3, March 2006

    Book Reviews


    Marital Property Law in WisconsinMarital Property Law in Wisconsin, 3rd ed.

    By Keith A. Christiansen, F. William Haberman, Philip J. Halley, Andrew Herbach, David L. Kinnamon, Margaret Dee McGarity, Michael R. Smith, Stephen R. White, Michael W. Wilcox (Madison, WI: State Bar CLE Books, 2004). 3 vols., 1,800+ pgs. $195, members; $245, others. Order, (800) 728-7788; www.wisbar.org/books.

    Reviewed by Barry J. Boline

    As noted in the preface, "Marital Property Law in Wisconsin has been a leading source of information regarding Wisconsin's community property system for over 20 years." Because the book had not been updated since 1995, the authors chose to produce an entirely new three-volume edition, covering recent case law and changes in state and federal legislation. While providing a complete history of the development of community property law in Wisconsin, the set quickly moves into explanations of very detailed and highly specific areas of marital property law. Additionally, the chapter on estate planning has been entirely redrafted, with new subparts added, reflecting the impact of marital property law on estate planning in Wisconsin.

    While not strictly a form resource, this set does provide several forms related to marital property agreements, estate planning documentation, and the litigation of marital property issues outside of the divorce arena. While there is no accompanying CD with downloadable forms, the value of the forms provided is less for cutting and pasting and more for explanation.

    Like most "brown books" published by the State Bar of Wisconsin, this set is by no means a cover-to-cover read. However, if your practice involves any aspect of estate planning, divorce, bankruptcy, debt collection, real estate, or taxation, you will want to have this third edition of Marital Property Law in your library. It is the best starting place for information related to marital property law in Wisconsin, and more often than not, the answers to inquiries on a marital property law-related topic will be found within its text. Take caution, however, because the authors presuppose a working knowledge of marital property law. This set is encyclopedic and is not a primer on marital property law.

    All in all, with the third edition of Marital Property Law in Wisconsin, the authors have done what is difficult to accomplish; they have improved on what has been the best resource on marital property law for many years. With this update, this set will continue to be used by practitioners for many more years to come.

    Barry J. Boline, Drake 1994, practices family law in Mequon.

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    A Practical Guide to Federal Evidence: Objections, Responses, Rules and Practice Commentary, 7th ed.

    By Anthony J. Bocchino & David A. Sonenshein (Notre Dame, IN: NITA, 2005). 390 pgs. $60. Order, (800) 225-6482.

    Reviewed by Frederic W. Knaak

    There are some useful, softbound, trial-related texts that have found their way into the brief cases of savvy litigators and law students for years. This guide is that kind of well-thumbed practice aid, and its popularity and usefulness is evidenced by NITA's recent release of the book's seventh edition.

    The authors have maintained the manual's practical organization by dividing the material into sections that logically group possible objections by subject matter. Each section contains necessary definitions, the form of objections and responses, and a reprint of the applicable federal rule. Lawyers and students alike will appreciate the succinct and pithy commentary accompanying each topic.

    The guide's usefulness has always been in its good organization, its reliability, and its brevity. It is a very good tool when you need a quick reference. Anyone looking for deeper (or more scholarly) analysis of thorny evidentiary problems may find the guide useful as a starting point but not as a final authority.

    The new edition contains substantial revisions reflecting the most recent changes to the Federal Rules of Evidence. An interesting, new chapter addresses the changes on hearsay in criminal cases enunciated by the U.S. Supreme Court last year in Crawford v. Washington. Other changes include new material on cross-examination technique and the creation and use of exhibits.

    For anyone who has not used the guide in the past, it is a highly recommended, trustworthy tool, suitable as a courtroom resource (or crutch). Current users will find it worthwhile to "upgrade" to this updated, improved edition.

    Frederic W. (Fritz) Knaak, Minnesota 1978, is a partner in Knaak & Kantrud P.A., Saint Paul, Minn. He is licensed to practice in Minnesota, Wisconsin, and Colorado.

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    Guardianship and Protective Placement for the Elderly in Wisconsin, 2nd ed.

    By Gretchen Viney (Madison, WI: State Bar CLE Books, 2004). 200+ pgs. $29, members; $40, others. Order, (800) 728-7788; www.wisbar.org/books.

    Reviewed by Melinda A. Gustafson

    This book grew out of a chapter written for the State Bar's elder law book. Not only does Guardianship and Protective Placement for the Elderly in Wisconsin employ a structure familiar to Wisconsin attorneys, it is a highly useful "how-to" for new attorneys or those seeking to expand their practice into issues of guardianship and protective placement for the elderly in Wisconsin.

    Viney explains that when informal means of providing for the care and safety of an elderly person fail, guardianship or protective placement may become a necessity. As the author walks the reader through the world of guardianships, protective placements, and advocacy roles, she includes numerous features that transform this book into a highly useful reference guide.

    The author includes practice tips and historical notes, which are highly effective in taking the reader beyond the words in statutes and into the real world application. For example, a chapter on the role of the petitioner's attorney begins with a practice tip stating that when the chapter was originally written, the petitioner most likely would be the county and represented by the county attorney. However, Viney notes that practice has changed over time because of scarce resources, and the private practitioner must approach the statutes in a more shrewd manner than a literal reading of the statutes might suggest. As a result, the reader learns about the current law and its historical context.

    Several extensive checklists throughout the book will be useful to the reader when faced with a variety of issues, including: indicators of possible elder abuse, required contents for a petition, and duties of the petitioner's attorney in uncontested guardianship and protective placement proceedings.

    Viney clearly states the book's limitations. For example, she notes that the book does not provide sufficient discussion of trial advocacy skills called for in contested guardianship or protective placement cases. The book also includes discussion of where the law lacks clarity. For example, statutes regarding independent medical or psychological evaluations are unclear as to whether there can be an independent evaluation of any issue other than competency.

    This book is an ideal resource for any attorney looking to begin working in the area of guardianship of the elderly.

    Melinda A. Gustafson, U.W. 2001, is employed at the Legislative Audit Bureau, Madison.

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    School Book Nation: Conflicts Over American History Textbooks from the Civil War to the Present

    By Joseph Moreau (Ann Arbor, MI: The Univ. of Michigan Press, 2003). 382 pgs. $19.95. Order, www.press.umich.edu.

    Reviewed by Paul B. O'Flanagan

    School Book Nation examines how American history texts have been a battleground in a long series of culture wars. The lion's share of these battles has centered on which racial and ethnic groups deserve to be included in the narrative of American history, and thus which groups should be regarded as truly "American."

    The book is a highly academic work, but the introduction provides a pithy overview. The book's ongoing theme is that as minority groups gain political power, they are able to gain inclusion into the narrative of history textbooks. Textbook publishers, as capitalists, must be sensitive to the desires of politically active groups. Thus, as groups gain political power to influence textbook purchasing decisions, they can require changes in school textbooks.

    In almost every instance the author examined, one group tries to gain inclusion into the narrative of American history and another group tries to prevent this inclusion. Issues and arguments are recycled anew each time a different group seeks to enter the narrative. The group seeking inclusion usually wants textbooks to note examples of the group's military valor. Conservatives feel that this results in less emphasis on "real" American history as it traditionally has been taught. For example, in an effort to celebrate the contribution of African-Americans, textbook writers recently began including Crispus Attucks, a Black sailor killed in the Boston Massacre of 1770. Conservatives, who felt that Attucks' inclusion resulted in the slighting of Paul Revere and not realizing that Attucks had been widely included in texts until the imposition of Jim Crow laws in the South, objected.

    Moreau also highlights the effect of a system that rewards publishers for not offending special interest groups. For example, after the Civil War, in an effort not to offend Southern sensibilities, texts tended to blame "extremists" in both the North and South for the war and portrayed slavery as an institution that equally benefited Blacks and Whites.

    Moreau concludes with a discussion of the September 11 attacks and their effect on the American mythos. Moreau contends that as the highjackers saw a single American people, so Americans must see themselves as a single national community.

    Paul B. O'Flanagan, U.W. 1999, practices in Hixton, Wis.

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    Traffic Law and Practice in Wisconsin, 3rd ed.

    By Barry S. Cohen, Thomas J. Hammer, Ralph A. Kalal, Joe Maassen, Todd E. Meuer, Christopher A. Mutschler, John J. Sobotik (Madison, WI: State Bar CLE Books, 2004). Two vols., 1,050+ pgs. $175, members; $220, others. Order, (800) 728-7788; www.wisbar.org.

    Reviewed by Raj Kumar Singh

    It is hard to imagine a legal privilege that is more valued than being able to drive along our public thoroughfares. Yet, it is hard to think of an issue that is taken less seriously by nonlawyers than that of dealing with traffic tickets that can cause the loss of that privilege. Most lawyers will only practice traffic law when established clients receive a citation. While those clients likely will not want to pay much for traffic ticket counsel and representation, those same clients likely will be unforgiving of traffic law malpractice should they lose their driver's license. And that is exactly why every Wisconsin attorney who would discuss a traffic ticket with a client should have a copy of Traffic Law and Practice in Wisconsin on hand for quick reference.

    The six authors of this two-volume, 1,000-plus page practice manual have more than 140 practice years among them, and their experience has enabled them to produce a work that is efficiently comprehensive. The first volume contains six sections that address Wisconsin's licensing system in general, commercial driver licensing, statutory procedures for traffic law cases, and three chapters relating more directly to offenses and violations. Volume II relates to drinking and driving issues and contains nine appendices that reproduce Department of Transportation charts, alcohol influence testing information, sentencing guidelines, relevant parts of the Wisconsin Administrative Code, forms, and more.

    In publishing this latest edition of Traffic Law and Practice in Wisconsin our State Bar continues in its tradition of exercising the highest publishing values. I confidently predict satisfaction for every Wisconsin attorney who purchases this manual.

    Raj Kumar Singh, Valparaiso 1999 cum laude, certificate in criminal practice, is a member of the Ozaukee County Bar.

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    Active Liberty: Interpreting Our Democratic Constitution

    By Stephen Breyer (New York City, NY: Alfred A. Knopf Publisher, 2005). 149 pgs. $21.Order, www.aaknopf.com.

    Reviewed by Gordon R. Shea

    Justice Stephen Breyer's short new book, Active Liberty: Interpreting Our Democratic Constitution, began life as a Harvard speech. And to its credit, the book maintains a straightforward, speaker-like tone that is enhanced by the use of concrete examples from recent controversies on the U.S. Supreme Court's docket.

    Breyer's book also could be read as a rejoinder to another brief volume that began as a speech: Justice Antonin Scalia's well-received book of roughly a decade ago, A Matter of Interpretation.

    Notably, however, Breyer essentially eschews the notion that that his book outlines any overarching theory of Constitutional law. Rather, Breyer maintains, it offers a practical philosophic construction on which judges (at whom the book often seems most aimed) may rely to reach the best results in cases in which traditional judicial tools yield no clear answers. Essentially, Breyer holds that a central goal of the Constitution is to empower citizens to solve their own problems, through their elected representatives. The Constitution, in Breyer's view, was not written solely to keep government from trammeling citizens' personal freedoms. Rather, that goal stands alongside another Constitutional goal: that of promoting a kind of affirmative, positive, "active," liberty. The scales of justice, Breyer argues, have tipped too far away from this latter, more "ancient," conception of liberty. And to his credit, Breyer does not shy away from naming a primary culprit in this alleged unbalancing: jurists who identify themselves primarily as adherents of the originalist/strict constructionist Constitutional school.

    This critique is convincing enough for those inclined to be open to it, but Breyer fails to show why "active liberty" should trump most other Constitutional approaches. Why is active liberty any more valid than, say, a natural law approach to the Constitution? Indeed, is active liberty a unique conception at all, or is it merely an uncredited twist on John Hart Ely-like principles that emphasize the Constitution's democratic functions?

    Readers who hope to see Breyer further develop his occasional forceful criticisms of what is popularly identified as the Scalia/Thomas wing of Breyer's own Court (for example, the Constitution is addressed, Breyer reminds readers, to "we the people," not "we the people of 1787") will also be disappointed. Active Liberty is no left-wing version of Robert Bork's Tempting of America. Still, one can't help but think that Justice Breyer would take such characterization as pretty high praise.

    Gordon R. Shea, Marquette, 1998, wrote about Justice Stephen Breyer's intellectual property jurisprudence in 2 Marquette Intellectual Property Law Review 195-230 (Spring 1998).

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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

    • The ABA Guide to Credit & Bankruptcy: Everything You Need to Know About the Law, Your Rights, and Credit, Debt, and Bankruptcy, by David L. Hudson Jr. (New York, NY: Random House Reference, 2006). 299 pgs.
    • The Art of Mediation, 2nd ed., by Mark D. Bennett & Scott Hughes (South Bend, IN: NITA, 2006). 269 pgs.
    • Business and Commercial Litigation in Federal Courts, 2nd ed., by Robert L. Haig editor-in-chief and 199 authors (Eagan, MN: WestThomson, 2005). 8 vols., CD-ROM forms. [Reviewer must have extensive, direct practice experience.]
    • Elevator and Escalator Accident Reconstruction, 2nd ed., by David A. Cooper, Joel D. Feldman J.D., Ronald D. Schloss (Tucson, AZ: Lawyers & Judges Publishing Co., 2005). 448 pgs.
    • Just Silences: The Limits and Possibilities of Modern Law, by Marianne Constable (Princeton, NJ: Princeton Univ. Press, 2006). 232 pgs.
    • A Practical Guide to Leadership for Lawyers, by Herb Rubenstein (South Bend, IN: NITA, 2005). 148 pgs.
    • Wisconsin Wages & Hours Handbook, Daniel T. Dennehy (Madison, WI: State Bar of Wisconsin CLE Books, 2005). 300 pp.



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