Vol. 75, No. 4, April 2002

Book Reviews

• Habeas Codfish
• Criminal Lawyer's Guide to Immigration Law
• The Right to Vote
• The Microsoft Antitrust Appeal
• Spoliation of Evidence
• Making Rain

• To review a book

As the book jacket reveals, Barry Levenson is the curator and CMO (Chief Mustard Officer) of the Mount Horeb Mustard Museum in Mount Horeb, Wis. A former Wisconsin assistant attorney general, he has argued dozens of cases before the Wisconsin Supreme Court and undoubtedly is the only lawyer to have appeared before the U.S. Supreme Court with a jar of mustard in his pocket.

Habeas Codfish, as you can tell by its title, is a humorous book about food and the law. And who in this fine audience doesn't like food, the law, and to laugh (though not necessarily at the same time)? Levenson, by his own admission a "recovering" lawyer with an admitted prejudice for mustard over ketchup (or catsup), caused this reviewer no "intentional infliction of gastronomical distress," though she does admit to occasional sore stomach muscles from laughing at some of the more absurd examples the author used to pepper his prose.

But seriously, Habeas Codfish, Reflections on Food and the Law is a thorough though basic book, even for a nonpracticing lawyer like myself, about an interesting topic. Levenson continually stirs his prose while folding in a number of basic legal concepts throughout. Then he adds a large portion of legal reality to the mixture and spices it with reflective thought and humor. Each chapter reads like a veritable recipe for legal concept soup! Most important, it's the only book about the law I know of that has funny cartoons!

Here are a few tidbits (and incomplete sentences) to snack on. Chapter 1 - Assault with a Breadly Weapon, a worldwide feast of food crimes fit for a king (and Supreme Court Justices Felix Frankfurter and Warren Burger). Chapter 2 - Big Beef Supreme, a history of food safety law. Chapter 3 - Nutrition Facts, Nutrition Fiction, a review of food labeling law. Chapter 4 - Food Fight, a discussion of the lawsuits involving advertising and pizza (plus a free Pizza 2Die4 recipe).

Chapter 5 - Java Jurisprudence prepares a tasty meal spiced with contract law and shaped into neat little legal patties of privity, negligence, warranty, or promise that also provides Levenson's feast de resistance (meaning the best we can expect ...) - at the very least, our food should "do us no harm." Chapter 6 - Bones of Contention cooks up a meatier discussion of the concepts in Chapter 5, but replaces foreign objects in food (I won't go there ... you need to read this part for yourself) with items "natural" to the dish or food still able to do serious harm, such as a chicken bone or olive pit.

Chapter 7 - The Legacy of Mr. Peanut folds a solid mixture of the main ingredients of intellectual property law and food into Chapter 8 - McBully, enhancing the intellectual property recipe provided in the previous chapter by tossing in a pinch of trade dress infringement and trade secrets law. Chapter 9 - Ladle and Slander includes the author's "review" on whether to swallow your pride or sue for a negative review by a restaurant critic. Chapter 10 - From Bad Apples to Mad Cows stirs in an additional ingredient of defamation and broadcast reports to complete a four-course meal on intellectual property issues and their connection to our favorite foods.

Chapter 11 - It's Not Nice to Defraud Mother Nature dishes tales about the dairy industry, especially the great butter versus oleo debate, and comes out of the oven a Wisconsin favorite. Chapter 12 - Not So Strictly Kosher sends the reader on an interesting trip around the world of kosher foods, and Chapter 13 - Cruel and Unusual Condiments, a visit to the world of prison food. These chapters all experiment by adding a public policy ingredient served with pungent thought.

Levenson combines a mixture of humor and adds a large measure of easy readability and a sprig of basic law as it applies to the topic of food. Habeas Codfish is a satisfying feast for the eyes and the mind. Bon appetit - and don't forget the mustard!

The Criminal Lawyer's Guide to Immigration Law

By Robert James McWhirter (Chicago, IL: ABA Criminal Justice Section, 2001). 334 pgs. $94.95. Order, (800) 285-2221.

Reviewed by Barry J. Boline

This publication is set up as a series of individual questions about immigation law, followed by relatively brief answers. For most questions, the answers are followed with citations to either primary sources (mainly the United States Code) or other publications and caselaw. Divided into three parts covering an overview of immigration law, immigration crimes, and foreign witnesses and defendants, the book is subdivided into smaller chapters relating to specific situations or issues relevant to immigration law.

The book does not read well cover-to-cover, as the Q and A format leads to a staccato rhythm. Adding to the unreadability are the 18 appendices that follow most chapters. In the appendices, McWhirter reprints United States Code sections (some both in English and Spanish), and memoranda from the Departments of Justice and State, and the Administrative Office of the U.S. District Courts. Attempting to place in one book all the primary sources needed to address basic issues of criminal lawyers dealing with immigration law results in more than half of the book being appendix.

On a more positive note, there is probably no issue relating to criminal immigration law that McWhirter does not address. He describes the deportation process, the procedures involved, and possible defenses and alternatives. He includes a chapter (and two appendices) describing such concepts as "letters rogatory" and "paroling-in" aliens. His coverage of "aggravated felonies" could fill law review articles by themselves, and his chapter on border stops is as complete as an INS field manual.

In the introduction McWhirter writes, "We want this book to be the first place you turn for answers." It will be, but it could have been so much more. The book lacks any real way to reference particular questions quickly and easily. Without an indexed list of his questions, McWhirter's answers get lost. Still, the book serves as a good first source to turn to when a client phones asking you if she might be deported, but it is not an end in itself. You will need to follow up with other, more in-depth sources before the client comes in for the retainer meeting.

This book is foremost a history book, and will appeal to history buffs. Considering the events that followed the November 2000 election, and the apparent effects of voting and not voting, and counting votes, this book should interest a wider audience. Keyssar chronicles the right to the "franchise" in the United States. He details the ways in which women, immigrants, Native Americans, African Americans, workers, and paupers gained and sometimes lost the right to vote.

The book starts with the right to vote that existed following the Revolutionary War. States had set up their own rules regarding the right to vote, and each differed in its requirements. The right to vote was tied to many different qualifications, including race, age, gender, citizenship, property ownership, and being a taxpayer. The Articles of Confederation granted the states complete control over the franchise.

When the U.S. Constitution was drafted, it granted the right to vote in national elections to those who were able to vote for the "most numerous branch of the state legislature." The book documents the changing roles of the state and federal governments in determining the breadth of the franchise, the passage of the 14th and 15th Amendments, and ultimately the 19th Amendment. It also documents the attempts of different groups to limit the franchise and exclude certain groups from voting by literacy and English language requirements, property tax requirements, and poll taxes.

It was interesting to learn that women had the right to vote in some states at the time of the Revolution, and then lost it before regaining it. It also was interesting to note that at the start of the Civil War, five states in New England granted the right to vote to African Americans.

After reading about the efforts of our ancestors to secure the right to nearly universal suffrage, I believe that more of us ought to exercise the franchise, and with more care.

The Microsoft Antitrust Appeal: Judge Jackson's "Findings of Fact" Revisited

By Alan Reynolds (Indianapolis, IN: Hudson Institute, 2001). 131 pgs. $16.95. Order, (317) 545-1000.

Reviewed by Donna M. Jones

The U.S. Department of Justice and at least 19 states'attorneys brought landmark antitrust litigation against the Microsoft Corporation, charging it with being a monopoly that abused its powers. U.S. District Court Judge Jackson ruled in favor of the government. The federal Court of Appeals agreed with Judge Jackson that Microsoft had abused its monopoly powers. The court also reversed Jackson's rulings, in part, and remanded the case back to the District Court for a different judge to consider the question of remedies, among other matters. Judge Jackson also was rebuked by the Court of Appeals for his inappropriate conduct regarding the case. Interestingly, Microsoft has discontinued many of the objectionable monopolistic practices.

Economist Alan Reynolds in The Microsoft Antitrust Appeal: Judge Jackson's "Findings of Fact" Revisited critiques Judge Jackson's findings. Throughout his book, Reynolds quotes findings, providing analysis and strong opinions. Reynolds rejects most of the findings on a variety of bases that are best represented by this statement at the end of his "Conclusion:"

"To summarize, far too many of the 'facts' turn out to be nothing more than ill-formed technological conjectures, bogus estimates, blatant contradictions, self-interested hearsay, and unsupportable opinions. Since the Findings of Fact form the base for the Conclusions of Law, the antitrust complaint against Microsoft is, quite literally, baseless."

An electrically charged environment can surround landmark litigation like the Microsoft case when it has the potential to affect so many consumers and businesses. In such an environment, conflicting opinions often are voiced emphatically. Reynolds offers one economist's critique of trial court findings, findings that were largely upheld on appeal.

Making Rain is not what one expects when you first pick up the book. From its title, it appears as if the book is a "how-to" book on making rain, or rather, obtaining clients. This is the furthest thing from a "how-to" book. Instead, it is a story more fitting of the fiction section of your favorite book store, à là John Grisham or Scott Turow.

Making Rain is about a young partner, Brad Talbert, who works at a major law firm. Talbert is described as a talented but introverted lawyer. He is extremely shy, and unable to get his own clients or "make rain." Talbert lacks self-confidence and does not have the same client charm of George Chambers, the stereotypical mean and unethical partner that Talbert must rely upon for his entire financial existence at the firm. Chambers constantly reminds Talbert that he can get other people to do his work (he can't), and has Talbert at the office during late hours doing his bidding. The relationship between Talbert and Chambers is tenuous at best, and certainly causes strain on Talbert's relationship with his wife.

The underlying story in Making Rain is about Chambers' illegal and improper dealings with the transfer of certain technology rights, which ultimately will lead to a tremendous amount of legal fees for him as one of the firm's big rainmakers. Slowly Talbert, with the help of his outgoing spouse, discovers the truth about Chambers and his alleged rainmaking skills. It is no surprise (and will not ruin the ending) to know that Talbert ultimately triumphs, develops self-esteem, and Chambers does not remain with the firm.

The book includes a test for readers to fill out to determine their rainmaking skills. The book's author and his company, for $85, will process readers' responses and determine the type of rainmaker that they are.

Making Rain is an easy read, and quickly provides evidence for any partner, senior associate, or anyone contemplating becoming a partner, of the perils involved in having your entire financial existence dependent on someone else because you cannot obtain clients. Making Rain should provide the needed swift kick in the proverbial rear end for anyone complaining about their inability to get clients. The book's underlying premise is easy enough to understand - do not waste your money on the test. You will have saved $85, which is a lot of rain to start.

Spoliation of Evidence: Sanctions and Remedies for Destruction of Evidence in Civil Litigation

By Margaret M. Koesel, David A. Bell, Tracey L. Turnbull, edited by Daniel F. Gourash (Chicago, IL: ABA Tort & Insurance Practice Section, 2000). 231 pgs. $89.95. Order, (800) 285-2221.

Reviewed by Moira K. Moran

The authors' ambition for this book is that it "serves as a useful starting point for lawyers in resolving issues." And, at this point, any issue regarding spoliation will present plenty of issues begging resolution. The law regarding spoliation is emerging, with the judiciary and the legislature recognizing new causes of action and sanctions for this tort. This set of circumstances leaves attorneys on either side of the issue with a plethora of provocative arguments to use in obtaining groundbreaking judgments in their jurisdictions.

For example, in Wisconsin, courts have not yet decided whether an independent cause of action exists for independent or negligent spoliation of evidence. However, practitioners hoping to argue that this cause of action exists can start to formulate their argument by perusing the book to find the states that do recognize these torts. In fact, the authors have provided an overview of statutory and case law for civil, criminal, and evidentiary sanctions for spoliation for each of the 50 states, the District of Columbia, and each federal appellate court. For any argument regarding spoliation of evidence, this overview is a compact guide.

The book also offers practice tips, based on the hindsight of prior judgments, for companies formulating document retention policies and for those companies and individuals anticipating litigation. The authors hammer home the idea that spoliation occurs before the litigation begins and after the accident. Thus, both plaintiffs and defendants have to prepare their clients to preserve evidence or to ensure that the other side is preserving it during the gray area between the tort and the lawsuit. The analysis of case and statutory law and the useful practice tips will guide any practitioner who faces a potential spoliation issue in the course of litigation and in its anticipation.

Wisconsin Lawyer