Book Reviews
Changing Your Mind: The Law of
Regretted Decisions
By E. Allan Farnsworth (New Haven, CT: Yale University Press,
2000). 271 pgs. $16. Order, (203) 432-0964.
Reviewed by Lisa A. Mazzie
Two centuries ago the French philosopher Jean-Jacques Rousseau said,
"It is absurd that the will should put itself in chains for the future."
Indeed, as a people we value the ability to change our minds in all
kinds of situations - from breaking off an engagement to marry, to
deciding not to sell a home after an accepted offer, to removing a
bequest from a will. Yet we all know there are limits - both moral and
legal - to freely changing our minds. Farnsworth's impeccably organized
work, Changing Your Mind: The Law of Regretted Decisions, provides a
brilliant framework for understanding the kinds of decisions you are
stuck with, and the kinds you can renege. More importantly, Farnsworth
explains why.
The work is not simply a book on contract law. Farnsworth takes
general contract principles, but shows them at work in a variety of
situations where someone has had a change of mind, situations that would
fall into other areas of law - tort, property, wills, and family. He
defines the elementary contract notions of the intention principle and
the reliance principle, expounds on their legal development, and shows
how they shape the law behind enforcing or forgiving certain
commitments. He also gives several other principles that support
enforcing or forgiving commitments: the dependence principle, the public
interest principle, the anti-speculation principle, and the repose
principle. These principles also are found in the law behind the
reversibility and irreversibility of relinquishments and preclusions, a
topic Farnsworth covers in the second part of the book.
Farnsworth's organization of the book, including his use of chapter
summaries and an "interlude" between the book's major sections, makes
the reading easier. He possesses a powerful command of the language,
using examples from classic literature along with examples from common
case law to present a readable text that is neither too disjointed nor
too dry. Finally, he ties his concepts neatly together in the
epilogue.
In the end, Farnsworth concludes, there are some decisions you are
just going to have to regret. After reading his book, at least you'll
understand why.
Reflections of a Radical
Moderate
By Elliot Richardson (Boulder, CO: Westview Press,
2000). 320 pgs. $17. Order, (800) 386-5656.
Reviewed by Scott C. Amendola
Among other things, Elliot Richardson clerked for Judge Learned Hand
and Justice Felix Frankfurter, was the U.S. Attorney for the District of
Massachusetts, and served in four cabinet positions: Health, Education,
and Welfare Secretary; Defense Secretary; Attorney General; and Commerce
Secretary. He is best known, however, for refusing President Nixon's
order to fire Watergate special prosecutor Archibald Cox when Cox
pursued tapes of Nixon's White House conversations. (Acting Attorney
General Robert Bork ultimately fired Cox; believers in karma were
undoubtedly gratified by the Senate's rejection of Bork's nomination to
the US Supreme Court.)
Reflections of a Radical Moderate originally was published
in 1996, and Richardson wrote a new preface before he died in 1999.
While ostensibly his memoirs, the book's real purpose is to promote
public service and re-energize American democracy. His call to action is
two-pronged.
First, he insists the government "urgently needs a new generation of
gifted public servants" and bemoans the increasing numbers of talented
people who choose the private sector instead. Reflecting on his own
experiences and those of colleagues who left "responsible but not
necessarily prominent" government positions for "prestigious and
well-paid" private sector jobs, Richardson states that"not one finds his
present occupation as rewarding as his government service." He urges the
government to enhance the attractiveness of public sector jobs, and job
seekers to put aside money in favor of the satisfaction of making a
difference.
Second, Richardson demands that citizens take an active role in
democracy. He chastises people for acquiescing to slogans rather than
demanding substance, selfishly preferring to satisfy short-term wants
instead of responsibly striving to meet long-term needs, and treating
the political process as a zero-sum game. As examples, he contrasts the
electoral success of the congressional candidates who ran on the
Contract with America (of which only a modest portion was enacted) with
the failure of his own campaign for a US Senate seat (which he
attributes largely to his honesty regarding the need to raise taxes as
part of a responsible fiscal policy).
Richardson begins the book by describing the history of American
democracy in glowing terms, proceeds to identify the problems that now
imperil its continuing success, and finishes by suggesting how both the
leaders and the led can address these issues. Throughout, he exhorts
everyone to put aside their cynicism and do something. Readers of
Reflections of a Radical Moderate will be encouraged at least
to try.
Practices and Principles: Approaches to
Ethical and Legal Judgment
By Mark Tunick (Princeton, NJ: Princeton University Press,
2001). 256 pgs. $19.95. Order, (609) 258-5714.
Reviewed by Jill Madden Melchoir
The best category for this book might be "for lawyers who are former
philosophy majors." In Practices and Principles, Tunick
explores the tension between absolutism and relativism. Tunick lays the
groundwork by exploring the philosophies of Kant (an advocate of the
absolutist or "principle" theory - that a behavior may be absolutely
wrong even though all societies everywhere condone it) and Hegel (who
advocates a relativistic "practice" approach - that in order to
determine whether a behavior is wrong, one must look to the society in
which it occurs). It is clear that Tunick favors the Hegelian view, but
he attempts to differentiate his philosophy from Hegel's by stressing
that we should entertain "principled criticism." That is, we should look
to the practices of a society to determine whether a behavior is wrong,
but we also should be able to criticize them if necessary.
Tunick applies this theory to three areas: broken promises, breached
contracts, and search and seizure jurisprudence. He cites numerous cases
to support his theory that one may use principles to criticize the
breaking of a promise, the breach of a contract, or an unreasonable
search and seizure, but in the end one also must look to the practices
of a society to give meaning to the principles.
While the reader is left in general agreement with Tunick (the
position is not really radical), a sense of incompleteness remains. It
would be interesting to discover Tunick's criteria for deciding when to
depart from "principles" in judging a questionable search and seizure,
for example, and call upon the "practices" of our society. It seems that
we as a society already do use both principles and practices in making
these decisions; it is the framework that we lack.
The Government vs.
Erotica: The Siege of Adam and Eve
By Philip D. Harvey (Amherst, NY: Prometheus Books,
2001). 250 pgs. $24. Order, (716) 691-0133.
Reviewed by Dennis Boyer
Philip Harvey gives us a clear and concise look into the inner
workings of a modern day persecution based on a political conspiracy
directed from Washington, D.C., and involving US attorneys in a number
of states. Harvey is the successful entrepreneur who owns Adam and Eve,
a catalog-based business that sells contraceptives, sex toys, and adult
videos. His memoir of his eight-year legal struggle is a significant
chronicle in the evolution of First Amendment political debate and shows
far more client insight than some of the other recent targets of
prosecutorial zeal (Larry Flynt and the exhibitors of Robert
Mapplethorpe's photos come to mind).
The reader is taken on a strange walk through the looking glass of
the Reagan 1980s, where talk show hosts and televangelists help chart
litigation strategy for a US attorney general. It is a strange world of
collusion and odd law enforcement priorities, an ill-conceived and
ill-executed domestic version of Iran-Contra. It is a story in which the
bitter irony of a coterie espousing less government while using
government in a ham-fisted manner is driven home again and again.
It is useful to hear this story from someone like Harvey, someone not
loaded down with the baggage or hysterics of a Flynt. This is an account
from an American businessman's point of view, a believer in the system
up to the day that system decided to crush him. This point of view makes
it possible to see how our nation continues to wrestle with the twin
demons of control and permissiveness.
Because of the context and timeframe, we get to see how these twin
demons create explosive and dangerous pressures in our society,
particularly in the Republican Party. The conflict is between the
libertarian impulse that guides our notions of civil liberties (and the
free market) and the authoritarian impulse with its large appetite for
social controls. In this conflict the "I know obscenity when I see it"
crowd has much latitude for its subjective disgust. Neither Holy
Scripture nor the Federalist Papers are particularly helpful in
evaluating sex toys.
Readers can rest assured that this reviewer did not take Harvey at
his word about the benign nature of his product line. I obtained a copy
of the Adam and Eve catalog and reviewed it closely. I can state with
confidence that Harvey offers nothing that cannot be purchased in the
adult novelty stores that are present in almost every city in America.
If anything, the wares are more tasteful, and catalog shopping spares
the timid the sometimes-seedy gauntlet surrounding many of the novelty
stores.
The subject lends itself to snickers and graffiti, but the principles
here are valued ones of free expression. If only defenders of political
expression had Harvey's tenacity (and resources). We would be a lot
closer to that dream of a pluralistic society than we are today.
The Lost Children of Wilder
By Nina Bernstein (New York, NY: Pantheon Books,
2001). 479 pgs. $27.50. Order, (212) 751-2600.
Reviewed by JoAnn M. Hornak
Seven years in the making, this book spans two and a half decades,
from the filing of the Wilder lawsuit in 1973 to its ultimate
dissolution in 1999. It follows the lives of two children trapped in the
New York City foster care system, Shirley Wilder and the son she had at
14 whom she didn't meet again until she was 33.
During the 1970s children's shelters resembled Dark Ages prisons and
private agencies dictated their own agendas, reserving treatment, not
for those children most in need, but for those children, primarily
white, fitting the agencies' religious criteria. The system routinely
ignored children's best interests; "permanency" was mere lip service. In
1974, for example, out of 2,123 children in foster care in New York
City, only 10 were adopted.
In exhaustive journalistic detail, Nina Bernstein puts a human face
on a bureaucratic system in which children were shuffled repeatedly from
one placement to the next, frequently with devastating psychological
consequences. Often, perfectly normal children, Shirley Wilder and her
son Lamont included, were placed in psychiatric institutions or state
reformatories for lack of an available placement.
The Wilder suit filed against New York City and the private religious
agencies it contracted with was premised on a First Amendment violation
of the establishment clause, but sought equal treatment for all
children, regardless of race or religious affiliation. The suit became a
political battlefield that resulted in a settlement that was to place
foster children on a first come-first served basis, but actually was
never implemented.
The book ends on a sad note, with Shirley Wilder's death at 39 of
AIDS. The Wilder decree, dissolved into another lawsuit, didn't change
the system. Rather, the system buckled under new social pressures such
as crack cocaine, AIDS, and homelessness that tripled the number of
foster children by the 1990s.
Brush with the Law
By Robert Byrnes & Jaime Marquetry (Los Angeles, CA:
Renaissance Media Inc., 2001). 304 pgs. $24.95. Order, (800)
266-2834.
Reviewed by Jon G. Furlow
Brush with the Law: The Turbulent True Story of Law School Today
at Stanford and Harvard chronicles the authors' law school
adventures at Harvard and Stanford. I use the word "adventures"
deliberately because the authors revel in the fact that they found a way
to game the law school system and get good grades and jobs without
attending many classes. All the while, the authors tell us, they pursued
a life of pleasure: Mr. Marquart devoted his law school career to
gambling; Mr. Byrnes turned his attention to drinking and drugs.
Why the authors seem proud of their achievement is both fuzzy and
remarkable. But the book is entertaining in a voyeuristic way; it is, in
many ways, the ultimate beach book. We are introduced to familiar law
student stereotypes: the students who delight in the failures of others,
figuring that it will only increase their own chances of success; the
obsessive students who, having been embarrassed once in class, brief
every case, attend every class, and become rabid class participants; and
the 24-7 students who completely immerse themselves in law school and
don't come up for air until graduation. The authors point, somewhat
predictably, to Scott Turow's prominent book, One L, as their reference
point upon entering law school. And their law school anecdotes echo the
more familiar stories from One L.
Once beyond the quirky stories of conventional law student life, the
authors depart dramatically from the One L story line. Law school is a
joke to them and their account quickly degrades into vivid descriptions
of sex, drugs, and gambling. Mr. Marquart tells of his transition from
his small-Texas-town roots to his acceptance to Harvard Law and ultimate
decision to spend his law school career gambling in casinos. Mr. Byrnes
was a bicycle messenger, turned political speechwriter for the
Massachusetts governor, who went off to Stanford Law. Once there, he
revels in his habits of ditching class in favor of drinking binges, pot
smoking, and regular travels to San Francisco to smoke crack. He even
fits in a Halloween orgy.
This purports to be nonfiction, but can we really believe it? Has it
been embellished? Do we care? Did the authors report this on the
character and fitness section of their bar applications? The authors'
point, it seems, is that law school is not that challenging after all.
Whether or not that's true, the more salient point of Brush with the Law
is that good taste is no impediment to writing books.
Federal Privacy Rules for Financial
Institutions
By K.M. Bianco, J. Hamilton, J.M. Pachkowski, R.A. Roth,
& A.A. Turner (Riverwoods, IL: CCH Inc., 2000). 504 pgs.
$49. Order, (800) 248-3248.
Reviewed by Amy M. Bentley
Federal Privacy Rules for Financial Institutions truly is
not light bedtime reading (though it may help you get to sleep), and few
attorneys will find it useful or necessary to read the entire book as I
did for this review. Rather, it is a good reference book for the text
of, and information about, the regulations several federal agencies
adopted to implement privacy provisions of the Gramm Leach Bliley
Act.
The book contains the text of the Act and implementing rules,
substantial commentary on the requirements imposed by this law, and the
history behind their adoption. For outside counsel advising many
different types of financial institutions, it is helpful to have all of
the rules in one place and the commentary is generally insightful. To
those new to this law, the commentary sheds light on concepts such as
the distinction made between "consumer" and "customer," the scope of the
rules adopted by the different regulatory agencies, and the intersection
of this law and the Fair Credit Reporting Act.
The resource would be more helpful if it included descriptions of the
differences between the regulations adopted by different agencies, even
though the differences may be slight.
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, klester@wisbar.org.
- Beyond Our Control? Confronting the Limits of Our Legal
System in the Age of Cyberspace, by Stuart Biegel
(Cambridge, MA: The MIT Press, 2001). 468 pgs.
- The Criminal Lawyer's Guide to Immigration Law: Questions
and Answers, by Robert James McWhirter (Chicago, IL: ABA
Criminal Justice Section, 2001). 377 pgs.
- Collaborative Law: Achieving Effective Resolution in Divorce
without Litigation, by Pauline H. Tesler (Chicago, IL: ABA
Family Law Section, 2001). 250 pgs. Diskette.
- Flying Solo: A Survival Guide for the Solo Lawyer,
3rd ed., edited by Jeffrey R. Simmons (Chicago, IL: ABA Law Practice
Management Section, 2001). 832 pgs.
- Habeas Codfish: Reflections on Food and the Law,
by Barry M. Levenson (Madison, WI: University of Wisconsin Press,
2001). 263 pgs.
- Krueger on United States Passport Law, 2nd ed. 2000., 3rd
supp. 2001, by Stephen Krueger (Hong Kong: Crossbow Corp.,
2001). 400 pgs.
- To Look Like America: Dismantling Barriers for Women and
Minorities in Government, by Katherine C. Naff (Boulder,
CO: Westview Press, 2001). 284 pgs.
- Making Sense of the ASFA Regulations: A Roadmap for
Effective Implementation, edited by Diane Boyd Rauber
(Washington, DC: ABA Center on Children and the Law, 2001). 279
pgs.
- Making Work Work for You, by Gary A. Hengstler
(Chicago, IL: ABA Career Resource Center, 2001). 78 pgs.
- Nursing Home Litigation: Pretrial Practice and
Trials, edited by Ruben J. Krisztal (Tucson, AZ: Lawyers
& Judges Publishing Co. Inc., 2001). 320 pgs.
- Occupational Safety and Health Law Handbook, by
Lesa L. Byrum, et al. (Rockville, MD: ABS Consulting, Government
Institutes, 2001). 350 pgs.
- Stack and Sway: The New Science of Jury Consulting,
by Neil J. Kressel & Dorit F. Kressel (Boulder, CO: Westview
Press, 2001). 302 pgs.
- The Ten Biggest Legal Mistakes Women Can Avoid,
by Marilyn Barrett (Sterling, VA: Capital Books Inc., 2000). 268
pgs.
Wisconsin
Lawyer