Vol. 84, No. 11, November 2011
Journalists’ Guide to Writing about Securities Regulation
By James Hamilton (New York, NY: Wolters Kluwer, 2011). 37 pgs. Free to media. Order, WoltersKluwerLBMedia@wolterskluwer.com .
Reviewed by Joe Forward
James Hamilton’s publication, Journalists’ Guide to Writing about Securities Regulation, isn’t so much a writing guide for journalists as it is a concise overview of the securities regulation system.
Lawyers (and journalists) who aren’t familiar with federal securities regulation and the parts and subparts that make it tick will surely benefit from this quick-to-read, 35-page primer. While outlining the “big picture” of securities regulation, Hamilton pinpoints the specific laws, departments, and forms that lawyers can reference as a starting point for any basic inquiry into this area.
The publication begins with an overview of major securities regulation legislation, from its origins in the Securities Act of 1933 through the recently passed Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Hamilton briefly explains the purpose and organization of the Securities and Exchange Commission (SEC) and the various divisions that operate under its purview.
The publication goes on to discuss the different “securities” that are regulated, as well as the disclosure, registration, and reporting requirements that companies must follow. What is particularly useful here is that Hamilton identifies specific forms that correspond to each requirement discussed.
An overview of the protections afforded individual investors and the transactions that trigger SEC investigation and enforcement action follows a primer on the SEC’s rulemaking process. Finally, Hamilton explains how investment companies, advisors, and dealers are regulated. Contact information for divisions within the SEC and other self-regulating organizations like the New York Stock Exchange is provided.
A useful source to guide journalists who write about securities regulation, Hamilton’s publication can also serve as a refresher or “cliff note” on basic securities regulation law for attorneys.
Equal Justice: A History of the Legal Aid Society of Milwaukee
By Thomas G. Cannon (Milwaukee, WI: Marquette Univ. Press, 2010). 440 pgs. $35. Order, www.lasmilwaukee.com .
Reviewed by Sarah Schuh
Since its founding in 1916, the Legal Aid Society (LAS) of Milwaukee has represented soldiers, children, blue-collar workers, women, and immigrants, all in the name of preventing injustices. By gathering historic narratives and documents, Thomas G. Cannon has effectively preserved the history of the LAS and shown that serving these populations is as relevant today as it was in 1916. Do not be surprised if what you read about the LAS inspires you to apply an innovative eye in obtaining results for your clients.
The author’s depth of knowledge stems from his experience as the LAS executive director, from 1979 to 1981 and again from 2005 to the present. He also has been a professor of constitutional law and legal ethics at Marquette University Law School, and he was a litigation partner at a law firm until 2000. He expressed the goals of this book as to provide “the raw database for a full academic study in the future” and “to preserve the Society’s valuable heritage, to acknowledge the enduring contributions of past staff, board, and supports, and to provide some larger context within which to understand the organization’s development.”
The format of the book bears out the author’s vision. Some chapters read like a nonfiction narrative while others function as a reference guide. For example, early chapters provide a framework of the founding generation, sponsoring organizations, key board figures, the LAS roster, and the chronology of the LAS as an organization. Additional chapters detail the main types of law practiced at the LAS and a digest of noteworthy cases. The book ends with approximately 150 pages of historical documents. Pictures, chronologies, profiles, charts, and historic texts throughout add value.
This book belongs on the shelves of a variety of lawyers. It is an essential read for Wisconsin (or other state) legal aid lawyers because it provides an insight into the evolution of the law and organizational structure of legal aid societies and the LAS in particular. Attorneys setting up service organizations will find key lessons in the history and evolution of the LAS’s interconnection with grant organizations, the pro bono community, social workers, and government. In addition, I recommend this book to readers interested in the legal and socioeconomic development of cities or the history of Wisconsin.
Aircraft Accident Reconstruction and Litigation 4th ed.
By Barnes W. McCormick & M.P. Papadakis (Tucson, AZ: Lawyers & Judges Publishing 2011). 928 pgs. $199. Order, www.lawyersandjudges.com .
Reviewed by Nate Cade
Aircraft Accident Reconstruction and Litigation is a large book, coming in at about 900 pages. Many of the authors are either experienced pilots or litigators who have had experience with both flying as pilots and legal work arising out of a crash or other event.
The book is divided into four sections, containing 50 chapters in all. The first section, titled “Investigative Techniques,” begins by explaining the basics of airplane aerodynamics, performance, stability and control, load factors, compulsion systems, and so on. It then outlines the various organizations that regulate or have jurisdiction over airlines and pilots. The book also has a lot of material discussing the possible causes of accidents.
The part of the book dealing with the basics of a plane’s controls, aerodynamics, instruments, and human performance might not seem scholarly, because there are very few citations. However, this makes the material in the first half a very easy read.
The next section of the book, “The Law,” covers topics including the handling of a major air disaster, spoliation of evidence, products liability, and potential Freedom of Information Act requests. This is the heart of the book for readers who want to understand the law of aviation litigation. This section is a great primer on the ins and outs of the subject.
The third section, “Helpful Techniques,” is also useful for lawyers. It discusses discovery requests to use in litigation, defense of military-aircraft accident cases, manufacturer defect theories, defense of manufacturers, cross-examination of expert witnesses, and 10 ways to screw up an aviation case. Most important, it includes a checklist for in-house investigations of aviation accidents.
Finally, a section titled “The Third Perspective” contains two very small chapters. One chapter has some interesting quotes overheard at various accident locations, including “Gravity never loses” and “If you mess up, lawyers will grade your papers.”
I enjoyed reading this book. If you have an interest in aircraft accident reconstruction litigation, this is the book for you.
The Labor Movement in Wisconsin: A History
By Robert W. Ozanne (Madison, WI: Wisconsin Historical Society Press, 1984, 2011 reissued). 304 pgs. $24.95. Order, www.wisconsinhistory.org/shop.
Reviewed by James J. Wawrzyn
Political power had shifted. The newly inaugurated Wisconsin governor and legislature took on the reform of laws regulating public employees as one of their first orders of business. The union sprang into action, pulling together a coalition of allies to lobby against the proposed reforms. Those opposed to the reforms viewed them as an existential threat to public-employee unions.
The year? 1933. The newly elected governor and legislature moved to repeal the Civil Service Act, which had been on the books since 1905 and provided protections for employees of the state. The freshly recognized Local for Wisconsin state employees, which had received a federal charter less than a year earlier, led the lobbying effort. The reforms were not enacted. The success led to the Local becoming a national union of state and municipal employees: the American Federation of State, County and Municipal Employees (AFSCME).
If you thought the year was 2011, you would be correct, too. The elections of November 2010 resulted in a new Republican governor, speaker of the assembly, and senate majority leader. Governor Scott Walker’s budget repair bill, 2011 Wisconsin Act 10, proposed drastic changes to the state’s collective-bargaining laws. Public employees’ unions mobilized a monumental response. Thousands of people filled the Capitol. The nation was watching. Media outlets and news shows hosts, including Greta Van Susteren of Fox News, descended on Madison to report on the show of union force.
This was not Van Susteren’s first visit to Madison. She received a bachelor’s degree from U.W.-Madison and worked with an economics professor, Robert W. Ozanne, on research that would eventually be used for a volume titled The Labor Movement in Wisconsin: A History. The book, originally published in 1984, recently was reprinted by the Wisconsin Historical Society Press.
The Wisconsin AFL-CIO urged Ozanne to publish the book. The author’s viewpoint is evident. In discussing the conflicts between workers and management, little attention is given to the rationale behind the opposing side’s positions. The virtues of labor’s position are often assumed.
Perspective aside, the book provides a compelling story of labor’s rise and Wisconsin’s leading role at the national level. Beyond being the birthplace of AFSCME, Wisconsin enacted the first worker’s compensation law in the nation in 1911. In 1932, Wisconsin again led the nation by adopting the first unemployment compensation law.
Labor’s success in the 1933 legislative battle proved to be a springboard for AFSCME, an eventual powerhouse in the labor movement nationwide. In 2011, labor’s efforts failed to prevent Act 10 from becoming law. Whether Act 10 proves to be a temporary setback for Wisconsin public employee unions, or the beginning of their demise, will be a story told in the next volume on the labor movement in Wisconsin.
Civil War Lawyers: Constitutional Questions, Courtroom Dramas, and the Men Behind Them
By Arthur T. Downey (Chicago, IL: ABA, 2010). 461 pgs. $34.95. Order, www.ababooks.org .
Reviewed by Matthew Pinix
Civil War Lawyers is an easy-reading nonfiction work with an esoteric subject matter packaged in a format and style that make it accessible to a wide audience.
The book begins with an examination of America’s founding documents and their contribution to the political and moral conflict that resulted in the Civil War. After a brief discussion about the vast societal changes that took place during the first half of the 19th century, the book reaches its first courtroom drama, the Dred Scott case, which it follows from the trial to the controversial U.S. Supreme Court decision. The book next examines Virginia v. John Brown, in which Brown was convicted for his attempt to incite a riot among Virginia slaves.
After discussing the social ramifications of the events leading up to Brown’s hanging, the book plows toward the war. Moving quickly without shorting the subject matter, the book artfully navigates the legal aspects of secession and the arguments of lawyers on both sides of the issue. The book devotes significant time to the war-time case Ex Parte Merryman, in which President Abraham Lincoln and Chief Justice Roger Taney butted heads over the president’s authority to suspend the writ of habeas corpus.
The book then delves into the battles at sea, explaining how they affected international diplomacy and almost resulted in a war with Great Britain. Maritime history fans will enjoy the book’s discussion of piracy, privateering, and the seizure of vessels. After a thorough examination of slavery and the steps taken to eliminate it, the book considers the legality of the military trials provided to Lincoln’s assassins and the failure to bring the head of the Confederacy to trial. There the book ends, somewhat abruptly, leaving the reader without any summation to punctuate its contents.
Despite the title, the book’s main text offers little biographical information about the lawyers involved in the legal issues it considers. That content appears in an appendix that is not referenced in the main text and is not an easy read. Arranged like an encyclopedia, the appendix is somewhat disorienting because there is no continuity from one entry to the next. More intriguing is a list entitled “Intersecting Lawyers” – presented as a second appendix – which offers 15 examples of instances in which high-profile lawyers of the era more than once found themselves across the aisle.
Overall, the book is an entertaining and informative historical text that should have many readers. The vast material covered in the book is addressed with enough specificity to educate the reader on its main points but remains general enough to ensure that it is accessible across the board.
Government’s Place in the Market
By Eliot Spitzer (Cambridge, MA: The MIT Press, 2011). 96 pgs. $14.95. Order, www.mitpress.mit.edu .
Reviewed by Jay Donald Jerde
What if the bank crisis of 2008 was a wake-up alarm – and America hit the snooze button? Eliot Spitzer is trying to rouse the American people to have a “serious conversation about government’s proper role in the market.” This book, easily read in a few hours, invites the discussion. It offers no solutions. That assignment is up to us.
Spitzer’s three rules of the government’s role in the marketplace can be summarized simply: only the government can ensure that American values of fairness win against the corrupting quest for profits. Examples of attempted enforcement of financial laws show how profits always win against ethics. Only government has the power to regulate or to create legal rights of action that empower individuals to ensure these core values win in the marketplace. Business leaders may feel relief in being forced to do the right thing.
President Reagan’s diagnosis of the government as the problem, according to this book, has taken hold with devastating results. In its wake are public cynicism and an administrative malaise in which regulators are unwilling to regulate to the full extent of their authority. The bank crisis demonstrates the folly of “libertarian” self-regulation, Spitzer says, but before regulation can be allowed to work, citizens must believe that the government can solve the problem.
Success of government regulation relies on enlightened corporate governance. Here, too, Spitzer sees a dereliction of duty resulting from current market structure. Corporate leaders are the ones to ensure operations consistent with American values of fairness. If they do not, their bosses, the shareholders, must intervene. Instead, shareholders fail to act.
Two commentators critique Spitzer’s analysis, but it seems that they all are on the same team. No conservative was invited to comment. The additional questions, nonetheless, are thought provoking. Are intellectual property rights increasingly stringent government-sponsored monopolies? Do zoning regulations merely protect the property values of wealthy single-family households? What if an unrestrained marketplace is the relevant core value?
This book is intended to start the debate by giving reasons for marketplace intervention by the government. The brief analysis of efforts to deal with the bank crisis offers the reader the opportunity to wonder if the structural problems that led to the crisis have been solved. This combination of theory and example may cause the reader to leave the book with questions in his or her mind, and that is a start.
But in a country listening to Ed Schultz and Glenn Beck, is that enough? To have a conversation, one needs someone to debate with. A liberal reader may nod in agreement with Spitzer. For a conservative, there may be enough in this book to say, “He just doesn’t get it” – but not enough pointed argument to respond other than by ignoring it.
Blood and Money: Why Families Fight Over Inheritance and What To Do About It
By P. Mark Accettura (Farmington Hills, MI: Collinwood Press, 2011). 300 pgs. $22.95. Order, www.BloodAndMoneyBook.com.
Reviewed by Dianne Post
I offered to review Blood and Money because it was available, and since getting older is inevitable, I thought I could learn something. I expected to slog my way through the book. I did not expect a scintillating volume full of life lessons. The book was so interesting, I zipped through it in no time. I do not agree with all the author’s conclusions about families or all his science, and he exhibits some lack of understanding about the dynamics of domestic violence, but for the most part Accettura has done nearly everything right in this book, from the conversational tone that draws you in at the beginning to the appendix that keeps you hooked to the end.
Accettura describes how and why we act like animals and the impact of death and inheritance issues on our behavior. He outlines the roles of different family members, including the dead person, who often deliberately created a toxic or altruistic situation. Then he switches to predators and the story of Brooke Astor, which reads like a movie plot. I loved the closing line on Leona Helmsley, “One wry commentator conjectured whether Leona will be exhumed at Trouble’s [the dog she left her money to] death to be buried in the pet cemetery with Trouble and the other bitches.”
The two main theories used in will contests are testamentary capacity (which usually is not successful) and undue influence (which is more likely to succeed). The author outlines steps that can be taken to protect the elderly person under the law; discusses administrative agencies, fiduciary relationships, and advance planning; and gives 61 very practical suggestions to avoid getting in a mess. In the appendix, he traces the evolution of the law of inheritance from primitive humans through various religious permutations into English and then American law.
Nothing is certain but death and change (some people and corporations never pay taxes). Both cause us deep anxiety. The book is not just for probate lawyers or even lawyers; there is something in it for everyone – some wisdom, some reality, and some very practical suggestions for both laypersons and lawyers. If you do probate law, it would be a great gift for your clients. If you don’t, it would be a great gift to yourself.
Assessment of Earning Capacity, 3rd Edition
By Michael Shahnasarian (Tucson, AZ: Lawyers & Judges Publishing Co., 2011). 304 pgs. $85. Order, www.lawyersandjudges.com .
Reviewed by Martin A. Blumenthal
Any lawyer who regularly practices in personal injury, disability, employment, or divorce law encounters issues involving determination of the loss or imputation of earning capacity.
Michael Shahnasarian is a vocational expert whose education and experience qualify him to assess individuals’ earning capacity. His book is a primer for the lawyer who finds it necessary to hire or consult a vocational expert. He explains what qualifications the expert should have, how fees are charged, the evaluation process, and testimony at trial and at depositions.
The author explains in detail the methodology used by vocational experts to prepare their reports. This knowledge is great preparation for deposition questions or cross-examination. He devotes a full chapter to trial and deposition preparation.
I found the discussion on imputing income to a nonwage-earning spouse in a divorce case especially enlightening because I recently was counsel for the petitioner in a case in which the judge did just that.
The damages demand in a personal injury case depends on many factors besides pain and suffering. If the client cannot work to the same extent as before the injury or can no longer work at all, the lawyer should have a reference such as this to rely on to get as close as possible to an objective assessment of loss of earning capacity.
Included are several case studies that give the lawyer a good sense of the process from start to finish. The author includes redacted interviews and reports for several types of cases because the earning-capacity issues vary in different causes of action.
The ACREL Papers, Spring 2011, Continuing Professional Education Proceedings of the American College of Real Estate Lawyers
(Philadelphia, PA: ALI-ABA, 2011). 397 pgs. With CD-ROM. $159. Order, www.ali-aba.org.
Reviewed by Chan Stroman
This collection of selected materials from presentations at the spring 2011 meeting of the American College of Real Estate Lawyers (ACREL) is vividly titled “Real Estate’s Journey Out of the Desert: Mirage, Miracle or Both?” The preoccupations of commercial real estate lawyers in these challenging economic times are aptly reflected in the chosen topics, which include strategies for dealing with failing or bankrupt lenders, borrowers, and landlords; the landscape of current practices in foreclosures, bankruptcies, and workouts; investment opportunities in distressed properties; and the challenges of navigating an increasingly complex regulatory environment. The compendium also covers topics of perennial interest to the commercial real estate lawyer, including commercial leasing, title insurance and underwriting, insurance and contractual risk allocation, and land use.
The materials range from outlines of presentations to publication-caliber papers, and the expertise of each contributor is well evident throughout. Some of the selections include practice forms developed for use in preforeclosure, forbearance and deed-in-lieu-of-foreclosure transactions. However, this compendium may be less useful to the attorney who approaches this book on a stand-alone basis without having had the benefit of the presentations that the materials were created to accompany, particularly since many of the topics, of necessity, focus on specific practice niches within commercial real estate law and, in some instances, cover issues that are not of general applicability across jurisdictions. In that light, it is unfortunate that the presentation schedule included in the volume shows that a presentation on the Model Real Estate Finance Opinion Report was given at the conference, but materials from that presentation are not included in the volume.
This edition was accompanied by a CD, which was supposed to include the contents of the volume but included only a pdf copy of the CD’s cover label, presumably as a result of a production error. However, beyond mere electronic copies of the conference materials, it would be ideal for the publisher, when preparing future editions of The ACREL Papers, to use the opportunities now available with current technology to augment the conference’s print materials with archived presentation videos. This would both increase the value of The ACREL Papers to commercial real estate lawyers eager to delve deeper into specific topics of interest and expand the reach of The ACREL Papers to finance and business lawyers who may be seeking a better and more accessible understanding of the latest developments in commercial real estate law.