Wisconsin Lawyer
Vol. 83, No. 10, October 2010
Raise the Bar: Real World Solutions for a Troubled Profession
Edited by Lawrence J. Fox (Chicago: ABA, 2008). 300 pgs. $49.95. Order, (800) 285-2221.
Reviewed by Rebecca K. Blemberg
Raise the Bar: Real World Solutions for a Troubled Profession is a collection of essays about what is wrong with the legal profession and how lawyers should fix it. The book is the result of the ABA’s 2007 Raise the Bar project. The authors’ mission was to “write about solutions our profession can embrace.”
Before offering solutions, the essayists frame the problem. Lawyers today are unhappy – unhappier than lawyers have been in previous generations. The authors argue that because law has changed from a profession to a business, lawyers are too motivated by profits and not sufficiently motivated by justice. As a result, lawyers sacrifice their personal well-being for the sake of their law practices, forego important pro bono work, neglect to mentor other lawyers, fail to develop a broad range of important skills, and generally lose a sense of pride and self-satisfaction in their work.
Times have changed since 2007. Given the miserable economy, lawyer layoffs, and the dearth of legal positions, it is easy to view Raise the Bar as less relevant today. Worrying about the ill effects of being overworked seems almost quaint compared to worrying about lack of work and financial ruin. But Raise the Bar has some interesting ideas for improving the profession. Perhaps a time when firms, businesses, and government agencies are in transition is one of the best times to think about ways to change the profession for the better.
The first few essays in Raise the Bar focus primarily on the way law firms are organized and leveraged and on compensation and promotion structures in firms. Essayists contemplate firms that abolish billable-hour goals, create internal reward systems for developing core professional values, and operate with great transparency with respect to how partnership is achieved. In later essays, authors explore how professionalism could be strengthened through apprenticeships, mentoring, and outreach to new lawyers and law students.
The book becomes inspiring in the final essays on lawyers, professionalism, and pro bono work. The authors argue that pro bono experiences lead to deeper job satisfaction and increased skill development for lawyers while at the same time helping more people achieve access to justice. These final chapters explore the ideals and virtues that underlie the legal profession and question what it means to serve others as a professional.
Raise the Bar is an ambitious book and a good read. Most readers will disagree with at least some of the proffered solutions to unhappiness in the legal profession, but contemplating the value of the solutions is what makes the book thought-provoking.
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Free the Market! Why Only Government Can Keep the Marketplace Competitive
By Gary L. Reback (New York: Portfolio, Penguin Group, 2009). 401 pgs. $26.95. Order, www.penguingroup.com.
Reviewed by Gordon R. Shea
As suggested by its exclamation-punctuated but seemingly contradictory title, Gary Reback’s new book about antitrust and (arguably) related doctrines, Free the Market!: Why Only Government Can Keep the Marketplace Competitive, is like a great cup of coffee: strong, bracing, and complex.
Reback’s thesis is essentially that antitrust doctrine has been warped by overly theoretical law-and-economics conceits that fail to duly focus on genuine competitiveness and innovation.
The book is divided into five sections, each of which (other than the first historical one) roughly corresponds to a case or two on which Reback served as counsel. The later sections will likely be of greatest interest to attorney readers; Part V, for example, focuses on mergers and acquisitions and addresses the West legal publishing company and its attempt (as it moved toward marriage with fellow publisher Thompson) to essentially claim a copyright in judicial-opinion page numbers. Part IV, about monopolies, focuses on the U.S. government’s antitrust case against Microsoft; Part III concerns types of intellectual property (a phrase Reback suggests lends a faux respectability to anticompetitive ideas).
Perhaps the key section of Free the Market! is Part II, which illustrates the strengths and weaknesses of the book overall. While purportedly addressing product distribution, Part II’s actual focus is per se antitrust illegality rules, especially as to vertical market integration. This might seem destined to be painfully dull – and, indeed, Free the Market! generally has its share of leaden passages. Yet Reback redeems the text by effectively invoking the human stories underlying his case studies. In Part II, for example, we meet William Baxter, a law professor turned Justice Department enforcer. At least in Reback’s telling, Baxter ultimately belied his unexciting appearance by spending his brief DOJ tenure warring with both Republicans and Democrats; threatening to “litigate to the eyeballs” the landmark AT&T suit that Baxter himself didn’t even originate; and acknowledging that he would enforce only those laws with which he personally agreed.
Reback even entertainingly integrates his personal stories into the book. In one case, for example, Reback successfully begged a court for a permanent injunction against his own client (the client, a corporation, was hemorrhaging money during a protracted trial; the injunction allowed for immediate removal of the fundamental issues to an appellate court), then took the result to the U.S. Supreme Court. He arrived in Washington, D.C. in the midst of the infamous mid-1990s government shutdown and a monumental snowstorm and ultimately landed at the Court caffeine-addled and nearly dumbstruck, trying to understand the impenetrable New England accent of Justice David Souter.
The problem with Free the Market!, however, is that Reback’s mix of memoir and manifesto is probably too dense and intellectual to appeal to general audiences but too expressive to get due respect from policy wonks. This is a shame; the book otherwise deserves to be read not only by any lawyers and judges whose work touches on issues of antitrust, technology, and (yes) intellectual property, but also by academics, economists, corporate clients, politicos, historians, techies … and just plain-old savvy consumers.
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Boardwalk Empire: The Birth, High Times, and Corruption of Atlantic City
By Nelson Johnson (Medford, N.J.: Plexus Publishing, 2009). 300 pgs. $17.95. Order, www.amazon.com.
Reviewed by Tim McAllister
Nelson Johnson, a judge on the New Jersey Superior Court, provides an emotion-laden history of Atlantic City in Boardwalk Empire: The Birth, High Times, and Corruption of Atlantic City. Johnson refers to Atlantic City circa 1974 as “a broken down old whore scratching for customers.” Johnson tells the story of Atlantic City with sincere emotion and plenty of smoky backroom details.
With the aid of inexpensive railroad excursion fares, the emergent middle class discovered vacationing and rode the rails to a former mosquito-infested coastal island from the heartland of the American industrial revolution in Philadelphia. The idea of community-centered tourism was new to antebellum United States. Originally targeted toward wealthy Southerners seeking an ocean-side summer reprieve, Atlantic City did not take off until after the Civil War.
The Atlantic City tourism community, specializing in providing opportunities to promenade on the boardwalk, attend low-cost events, and stay at boarding houses or engage in day trips, provided the illusion of social mobility to factory workers and their families. Package excursions, a modern tourism staple, created a major social shift in recreational behavior.
Johnson details the “necessary evils” of a resort-industry workforce comprised of freed slaves and of the ward political system that enabled a boss to run the city. Collusion among businessmen, politicians, and organized crime enabled Atlantic City to essentially disregard the Volstead Act (Prohibition). Enoch “Nucky” Johnson, the boss during the roaring ‘20s, ensured that all Atlantic City civil servants kicked back between 1 percent and 7 percent of their salaries to the Republican Party. The Republican Party, with Nucky’s approval, used the ward system to control everything from the ice cream monopoly to membership on the police force. The FBI considered Johnson a member of the “Seven Group,” a cooperative alliance of mobsters that included Lucky Luciano, Meyer Lansky, and Joe Adonis. Atlantic City, conceived and created for recreational purposes, flourished under Prohibition – regardless of the percentage siphoned off by racketeers.
Gambling and protection rackets remained lucrative following Prohibition’s repeal. Tax evasion and perjury convictions chipped away at the boss-system infrastructure. American society changed greatly following World War II, and expectations rose enormously. While people’s expectations changed, Atlantic City did not.
Federal laws that mandated civil-service testing, enforcement of vice laws, and the alternatives presented by the evolving tourism industry all put Atlantic City into a rapid decline. Atlantic City found itself with the highest crime rate for a community its size nationally and with the highest rates of poverty, divorce, venereal disease, tuberculosis, and infant mortality in New Jersey.
As an author, Nelson Johnson does not hide his admiration for the “Golden Age of Nucky” or the renewal of casino-based tourism for Atlantic City.
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Shakedown: How Our Government is Undermining Democracy in the Name of Human Rights
By Ezra Levant (Toronto, Canada: McClelland & Stewart Ltd., 2009). 240 pgs. $18.99. Order, www.mcclelland.com.
Reviewed by Robert J. Miller
Ezra Levant’s Shakedown chronicles his prosecution by the Alberta (Canada) Human Rights Commission for republishing Danish cartoons regarding Islam. The original Danish publication led to rioting and deaths. Subsequently, the Yale University Press has refused to publish a book about the original Danish publication, because it fears retaliation.
Canadian taxpayers fund these quasi-judicial tribunals, which afford virtually none of the procedural and due-process protections that common law jurisprudence has produced since the Magna Carta. Tribunal members have announced decisions in advance, sought to bar accused individuals from attending their own proceedings, exercised the tribunal’s right to search and seizure without warrants, used hearsay and double-hearsay, failed to give accused individuals advance notice of the documentary evidence, and even committed crimes to obtain evidence. All the preceding events and more are outlined in Levant’s book.
The father of Canada’s human rights tribunals, Alan Borovoy, has himself disowned the bodies. The book is an indictment of “human rights,” however nebulous, trumping the hard-won rights of the populace.
Admittedly, this book’s brief outline of the claims is hard to believe. The interested reader should view Levant’s eloquent defense on YouTube. Alternatively, review the claim brought against author Mark Steyn regarding an article in Macleans magazine.
The story blossoms into an ode on the value of the Internet. Levant recorded his opening statement to the commission and posted it on YouTube, where it became the fifth most-viewed video during that week. The video was viewed more than 500,000 times.
Levant began raising money on the Internet for his defense. Bloggers rose to his defense and conducted research on his behalf. One person even wrote a song mocking the Human Rights Commission and posted the video for review.
Within a week, Shirlene McGovern, the lead questioner, quit because of the backlash from the Internet publicity. Within three weeks, the complainant withdrew his complaint and was found to have a history of intolerance himself. The Canadian taxpayers were left with a $500,000 tab for the Human Rights Commission investigation, and Levant and his publication had a $100,000 legal bill for his defense.
Levant can be insulting, elegant, eloquent, and abrasive in his defense. Some may disagree with his tactics, his oratory, and his confrontational style. However, it is the very prerogative to disagree (with Levant or with anyone) that the defenders of Canadian “human rights” wish to deny to their citizenry.
Shakedown outlines a representative democracy losing its freedoms. This book is a stark illustration of James Madison’s dictate: “There are more instances of the abridgement of the freedom of the people by the gradual and silent encroachment of those in power, than by violent and sudden usurpation.”
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