Wisconsin Lawyer
Vol. 82, No. 11, November 2009
Garner on Language and Writing
By Bryan A. Garner (Chicago, IL: ABA Publishing, 2009). 600 pgs. $59.95. Order, (800) 285-2221.
Reviewed by Douglas E. Baker
One can always tell when a performer has reached the top – publishers scour the archives for lesser-known earlier works and release them as a set. Bryan Garner has become the dominant authority in the field of legal writing, and this is his anthology, more than 20 years’ worth of articles, essays, and speeches on just about every aspect of legal writing. The materials are drawn from periodicals such as the ABA Journal and For The Defense, as well as Garner’s introductions to myriad law dictionaries, from Black’s (which he now edits) to a reissue of the 1792 New Law Dictionary by Richard Burns. Each is well-written and insightful in its own right.
As is Garner’s wont, several articles offer the usual admonitions against sloppy legal writing – “[A] supermajority of lawyers,” he opines, “even law professors, grossly overestimate their writing skills and underestimate the importance of those skills” – and each provides clear and sharply written advice on how to make legal writing more precise, lively, and effective. He also includes articles of immediate practical value, for example, “Demand Letters That Get Results.”
Legal editors and those they edit may take special interest in a pair of articles dealing with the ongoing war between those who believe the goal of dictionaries and usage guides is to tell writers the rules that must be followed (people who Garner deems “prescribers” (read editors)), and those he calls “describers” (people who believe the dictionaries and the like ought to simply reflect the way words are actually used and not get hung up on technical niceties (read most legal writers)). Garner ultimately proposes a compromise: “[P]rescribers need to be realistic. They can’t expect perfection or permanence, and they must bow to universal usage. But when … only part of the population has adopted a new usage that seems genuinely undesirable – prescribers should be allowed, within reason, to stigmatize it.” Like most good compromises, of course, this position is sufficiently vague to engender the same arguments as before, begging the question of which usages are genuinely undesirable.
Garner even delves into the sometimes arcane world of legal citation, to the extent of taking on traditional canons such as the proscription against string citations: “If you have … five Nebraska cases on point and you want to cite all five, fine. And if one of those cases bears further discussion, then you can discuss it by name in the text. But citing five or even fifteen cases is no problem if they’re in footnotes.” It takes a lot of authority and confidence to speak what would be heresy in most legal writing courses.
In sum, Garner on Language and Writing is a useful compendium for anyone who writes and especially for lawyers. Although not as targeted or indispensable as Garner’s Dictionary of Modern Legal Usage or his Elements of Legal Style, this book certainly deserves a place on the bookshelf of every legal writer and editor.
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Defusing Workplace Time-Bombs: Drafting Employment Agreements and Policies to Prevent Disputes, Avoid Tax Traps, and Settle Cases
By Robert B. Fitzpatrick (Philadelphia, PA: ALI-ABA, 2008). 169 pgs, with CD-ROM. $99. Order, www.ali-aba.org.
Reviewed by Francine Bailey
This reference book for drafting agreements and policies for a variety of employment issues is divided into four sections: model agreements, commentary, sample policies, and illustrative cases. Although the book contains in-depth commentary, there is little explanation or “how-to.” The book is not a primer for someone new to employment law: The author assumes the reader possesses a general understanding of the area. However, the book has excellent forms and model language for drafting thorough employment agreements and policies.
The model settlement agreement – the book’s most in-depth model agreement – addresses commonly used terms and provisions. This section is written from a neutral perspective, pointing out what is important to each side and mentioning common practices for both employees and employers. The author discusses provisions an attorney should consider and various consequences of different clauses. The discussion includes examples of provisions geared to comply with such laws as the Older Workers Benefit Protection Act and explanatory case law.
The book’s commentary section includes an adaptation of an article entitled “Ten Traps to Avoid In Drafting Enforceable Confidentiality, Non-Compete, and Non-Solicitation Agreements.” In a straightforward style, the author states and explains each mistake and provides supporting case law. The section includes a checklist.
A brief section on I.R.C. § 409A begins with its application to severance pay plans. Although not all of the code section’s nuances are addressed in this concise chapter, the author points out various elements that are important when applying § 409A to severance and settlement agreements.
The section of illustrative cases summarizes and analyzes case law from several jurisdictions. Although the significance of these particular cases is not explained, each case does offer insight on unique issues. Some of the employment issues involved include ex-parte contact with employees, disqualification of class counsel in employment law cases, law-firm age discrimination, and the interrelation of independent contractors and employers for the purposes of the Federal Tort Claims Act.
The book’s most useful portion is its accompanying CD, which has Microsoft Word versions of 12 documents discussed in the book. Many of these model agreements are exact replicas of those within the book, and each document’s associated commentary also is included on the CD. Readers may adapt the model’s terms or clauses to a client’s specific needs. Additionally, the text of the entire book is on the CD as a searchable PDF file, which gives busy practitioners convenient access to the reference materials.
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Pension Protection Act of 2006: Law, Explanation, and Analysis
By CCH Editorial Staff (Chicago, IL: CCH, 2006). 1,312 pgs. $45. Order, www.onlinestore.cch.com.
Reviewed by Kerri A. Hutchison
Passed in the wake of Enron and other corporate accounting scandals, the Pension Protection Act of 2006 (PPA) is the most sweeping reform of pension legislation in the past 30 years. While the main purpose of the PPA is to strengthen funding rules for defined-benefit pension plans, the mammoth 907-page PPA also delves into issues unrelated to pensions, such as charitable contributions, all of which are covered in this book. Although employee benefit attorneys will likely find this book to be an excellent reference on the PPA, the nearly 1,200-page guide is overly detailed and technical for lawyers whose practice does not routinely involve employee benefit plans or other substantive areas covered by the PPA.
Overall, this book is well-organized and contains helpful analysis to guide readers through the PPA. A short section on the highlights of the PPA is followed by 500 pages of explanation of the PPA’s provisions. These explanations, written by CCH editorial staff, generally contain a summary of the new law, background on the issue, and a thorough explanation of the new law, with occasional warnings and planning notes for practitioners.
The book also contains all the Internal Revenue Code (IRC) sections that were added or amended by the PPA and selected portions of the PPA that amended sections of the Employee Retirement Income Security Act (ERISA). The Joint Committee on Taxation’s Technical Explanation of the PPA also is included. This book is designed as a one-stop resource and heavy cross-referencing is used throughout. For example, all explanations of the PPA provisions are cross-referenced to both the PPA text and the Joint Committee on Taxation’s Technical Explanation. Practitioners will likely find the tables containing the effective dates of the modified IRC and ERISA sections particularly helpful.
Unfortunately, the book’s 2006 publication date means that more recent guidance related to the PPA is omitted. Also, the book does not address some questions that have arisen since the PPA’s 2006 passage as employers and practitioners have grappled with all the new requirements of the PPA.
Despite these minor shortcomings, this book remains an excellent reference tool. Attorneys seeking to understand the complex PPA will likely not be disappointed by either the depth or the breadth of this book.
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The Public Domain: Enclosing the Commons of the Mind
By James Boyle (New Haven, CT: Yale Univ. Press, 2008). 315 pgs. $28.50. Order, www.caravanbooks.org.
Reviewed by Ernesto Zaldivar
Professor Boyle does an exceptional job of communicating the importance of intellectual property in the lives of all persons – born and unborn. With a strong enthusiasm that immediately makes an impression on the reader, Boyle sets out on a difficult mission: making the case for an intellectual property system that spurs innovation through accessibility to, rather than restrictive protection of, the fruits of innovators’ labor.
The book is a well-researched intellectual exercise that prods readers to do their own thinking – as good books should do. It is unlikely to directly help anyone in the practice of law, but it provides a fun way to enjoy law outside of the work environment. Boyle does a more than adequate job of informing readers how intellectual property law developed and where it is going. I welcomed each chapter of the book because Boyle made me believe that his subject is a new legal frontier. This is contrary to the many areas of law that are deeply rooted in history and tradition.
Despite wanting to believe that an area of the law can still be crafted differently than its current molding, it’s easy to be skeptical because the legal system relies so heavily on letting decisions and methods stand as they always have been. Boyle contends that easier access to intellectual property is necessary for our society and indicates with convincing boldness that we are confronted with the decision over how to direct this new legal frontier.
Boyle makes his case. His thoughts and methods appear to embrace the frustrations that his students have had when learning the intellectual property system. He uses those frustrations to demonstrate that the current patent and copyright systems are counterproductive to their original goals. Boyle also embodies the type of adaptation to innovation that his book posits.
The book is accessible in that each chapter stands alone. Boyle’s writing is logical and fair and delivers his assertions well. The accessibility of the design, however, sometimes leads the reader on tangents that are not readily identifiable as being related to the argument. Yet, some of Boyle’s less direct illustrations also are fascinating; they contextualize the information in the book – a result that many authors aim for but that few achieve.
In 10 chapters, Boyle makes his assertions and provides a balanced history of how society reached the current intellectual property regime. He also provides further reading suggestions for each chapter’s topic and includes many public domain citations.
The book made for a good read about current trends affecting law and society in general. The book is very modern in its content and examples, which provide glimpses into the past by using recent news as the starting point.
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Supreme Court Year in Review 2009: Major Cases and Decisions of 2008
By the Washington Post (New York, NY: Kaplan Publishing, 2008). 401 pgs. $27.95. Order, www.kaplanpublishing.com.
Reviewed by Megan McCormick
The Washington Post’s annual review of significant U.S. Supreme Court decisions covers 15 cases from 2008. For each case, the book provides a lengthy excerpt of the decision, highlights of the dissent, relevant Washington Post news coverage, and legal commentary. The book concludes with a timeline showing the date of each of the Court’s decisions in 2008.
The book’s introduction states that it “seeks to offer broad exposure to and scrupulous analysis of the most noteworthy cases tried by the Supreme Court in 2008.” The book definitely meets its stated goal. Topics covered include habeas corpus, the First Amendment, the Second Amendment, the Eighth Amendment, the Fourteenth Amendment, federal sentencing guidelines, criminal law, employee benefits, and torts.
I found the Post’s review to be an enjoyable way to update my knowledge of recent Supreme Court decisions – especially those that have no bearing on my current practice and that I may have consequently overlooked during the previous year. The book provides a sufficient overview of some of the cases without being overly detailed or cumbersome. Furthermore, the inclusion of newspaper coverage provides background information and explanations, which often are geared toward nonlawyers and are not included in the decision itself.
I especially enjoyed the inclusion of the Washington Post news coverage. In many instances (especially for the most well-known cases) the book provides articles from each major stage in the litigation. For instance, in its treatment of District of Columbia v. Heller, the case challenging the District of Columbia’s handgun ban, the Washington Post’s review includes 14 newspaper articles and editorials spanning from the time certiorari was granted by the Supreme Court to the Congressional reaction to the decision and the subsequent lawsuit filed by Heller (which alleges that the District of Columbia’s licensing system is too burdensome). By providing readers with roughly a year’s worth of news coverage and excerpts from and legal commentary on the decision, readers learn about both the decision itself and any reaction of the parties, the government, and other notable players.
While I enjoyed this book, I would not recommend it as a legal research tool. Although fitted with an extensive index, which allows the reader to proceed directly to various topics of interest, this book provides only an excerpt of each decision and dissent and lacks relevant citations.
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Philadelphia Freedom: Memoir of a Civil Rights Lawyer
By David Kairys (Ann Arbor, MI: Univ. of Michigan Press, 2008). 426 pgs. $24.95. Order, www.press.umich.edu.
Reviewed by Kenneth W. Krause
Law can inspire both the best and the worst in people. Most of us prefer to let others do the dirty work. But an intrepid few will occasionally break away from the pack to don the law like a crusader’s cape, or, perhaps, to wield it like a barbarian’s sword – depending on one’s perspective.
Sometimes an officer of the court will take up the mantle. Consider, for example, David Kairys, now Temple University professor of law. In Philadelphia Freedom: Memoir of a Civil Rights Lawyer, Kairys recalls the plights of his clients along with the uncommonly bold and energetic legal services he delivered to them. Indeed, during his very first gig with the public defender’s office in Philadelphia, he refused to accept a supervising colleague’s advice that a certain extradition file was a “wild goose chase.”
Extradition is usually a clear-cut and artless matter. All the requesting state – Georgia – had to show was that a crime occurred and that the subject of the extradition request – an African American named James Jiles – was the person convicted of the crime. Indeed, to that point in 1968, Pennsylvania had never refused an extradition request.
An all-white jury had found Jiles guilty of murder 25 years earlier. The shooting may have been in self-defense, but Jiles was without counsel. He eventually escaped from a Georgia chain-gang and, thereafter, lived a productive, family-oriented life in Pennsylvania. Great facts, perhaps, for an attorney in Georgia seeking a new trial or clemency.
But Kairys correctly diagnosed his client’s situation as a thorny political problem. The Pennsylvania governor was a conservative “law-and-order” Republican, and so Kairys pursued a creative solution. After repeatedly interviewing Jiles’s wife, he finally discovered that his client’s labor union was the only one in Philadelphia that had supported the district attorney – one Arlen Specter – during his last political campaign. In fact, Jiles had actually met Specter at the union hall and shook his hand.
So Kairys quickly arranged a meeting with Specter, advising the career politician that the Philadelphia Inquirer intended to get involved on Jiles’s behalf. He ultimately argued his case to the deputy attorney general of Pennsylvania – with Jiles, a few character witnesses and affidavits, Arlen Specter’s glowing letter, and a 16-page brief in tow. Within two weeks, the Pennsylvania governor announced his intention to refuse extradition. Jiles continued to live a clean and constructive life in Pennsylvania until he died in 1991.
Kairys also represented Alice Olson. Alice’s husband, Frank, a biochemist and father of three young children, worked for the government on special military projects. Apparently, a CIA researcher had secretly slipped Frank and other scientists large doses of LSD at an exclusive retreat about a week before Frank reportedly jumped out of a 10th-floor window at New York City’s Statler Hotel. That was in 1953 – 22 years before the CIA finally admitted any wrongdoing to Alice. In the end, the government coughed up $750,000 to avoid a lawsuit. But subsequent investigations of the CIA, says Kairys, exposed more victims of drugs, biological agents, and assassinations.
Kairys’s myriad experiences in civil rights practice reveal the simple, recurring themes of dedication to principle and respect for even the least empowered client. Perhaps times have changed, but those ideals are still among the reasons why some people choose to endure the rigors of a legal education. And those are likely the students who one day, if given adequate encouragement, will become truly great lawyers.
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