Vol. 75, No. 11, November
2002
Book Reviews
In the Hands of the People: The Trial Jury's
Origins, Triumphs, Troubles, and Future in American Democracy
By William L. Dwyer (New York, NY: Thomas Dunne Books, a
division of St. Martin's Press, 2002). 252 pgs. $24.95.
Reviewed by Martin K. Schmidt
In recent years it has been proposed that the American jury system
undergo some review to either make revisions or do away with juries
altogether. Riding along in the slipstream of some of the trials made
famous by heavy media coverage, jury trial critics claim to see many
weaknesses in the contemporary American jury, including an inability to
deal with the often complicated and technical evidence and testimony
that is presented in trials.
William L. Dwyer, based on his 30 years of practicing law and his
experience as a U.S. district judge since 1987, is a fervent believer in
our American juries. He argues that many of the problems arising from
our use of the jury system, generally, are really the result of
neglecting or inadequately communicating with the jury. He proposes
changes in trial procedure, including: 1) adding a "mini" opening
statement before empanelment to better inform the jury from the start;
2) permitting jurors to ask specific questions and take notes during the
trial; 3) ensuring that jurors perfectly understand jury instructions;
and 4) presenting a jury in deadlock with more evidence or argument on
whatever point is dividing the panel. Dwyer holds the typical juror in
high regard and, given the proper judge-jury and lawyer-jury
communication, has great faith in the jury system.
Dwyer compares our adversarial system, which enables the jury to
determine the truth of a matter, with the European inquisitorial system,
in which the judge investigates the matter and tries to arrive at the
truth. While the inquisitorial system is attractive in that it dispenses
with rhetoric and gamesmanship, it lacks our extensive legal conceptions
of personal liberty such that European judges in criminal trials, for
example, need not concern themselves with anything akin to our Bill of
Rights.
Lest we begin to take our juries for granted or become too glib in
pointing out their shortcomings, Dwyer provides a brief overview of the
history of jury trials in Anglo-American law. Of course he covers the
Salem witch trials, and mentions their latter-day counterpart, the
McCarthy hearings. Perhaps not the least important function of the jury
is its tendency to balance power by way of jury nullification, as
demonstrated in the pivotal John Peter Zenger trial of 1735.
In the Hands of the People is not a technical or scholarly
work. Dwyer backs up his arguments with evidence that is mainly
anecdotal and interesting. To the extent that he cites formal research,
it relates to his arguments in a general way. One senses that, while
Dwyer believes that the benefits we get from the institution of the jury
trial redound to the credit of the jurors and their ability to rise to
something greater than the sum of their individual selves, he also
thinks much of the benefit of the jury trial accrues to the jury members
themselves, who come away somehow enriched by the experience. After
reading this book, you may find yourself wanting to serve on a jury.
Labored Relations: Law, Politics, and the
NLRB
By William B. Gould IV (Cambridge, MA: Massachusetts
Institute of Technology, 2002). 449 pgs. $22.95. Order, (800)
356-0343.
Reviewed by Laura Suess
Nominated by President Bill Clinton in June 1993 to serve as chair of
the National Labor Relations Board (NLRB), WilliamGould vividly recounts
his struggles and triumphs in this book, relying on memory and a
personal journal that details his experience during his tenure that
ended in August 1998. His account details his difficulties in being
confirmed as chair in 1993 and describes "nearly four years of outright
hostility by congressional Republicans who, for the most part, remain
unreconciled to the 65-year-old statute I was charged to administer."
The opposition was no doubt angered by his Agenda for Reform,
in which Gould argued that the law that the NLRB administers, the
National Labor Relations Act, was ineffectual and made several proposals
to amend the Act to enhance its effectiveness. Former NLRB Chairman
Gould describes the charges of untruthfulness he faced by Republicans on
many fronts, including in his opposition to California Proposition 226,
an initiative that would have required unions to get explicit
authorization from all represented workers before spending union dues
for political purposes, and other challenges he faced during his
term.
Gould offers an insightful account into the NLRB's day-to-day
operations and Washington politics. Readers obtain vivid details about
the NLRB and Gould's views, motivations, cases before the Board, and the
rationale for his views. His book includes interesting photos and
several speeches, including his statement at his confirmation hearing,
speeches he gave to NAACP and National Academy of Arbitrators
conventions, and a glossary of cases decided during his tenure.
Gould's descriptive stories may be too detailed or lengthy for some
readers, and at times it was difficult to follow his stream of
consciousness writing to determine his overall point in a given passage.
By and large, however, Gould's memoir demonstrates the impact of
politics and opposition to him as NLRB chair, and is worth one's time to
read.
Strategies for Electronic Commerce and the
Internet
By Henry C. Lucas Jr. (Cambridge, MA: The MIT Press, 2001).
279 pgs. $32.95. Order, (800) 356-0343.
Reviewed by Gail Miles
Long the topic of controversy and curiosity, subjecting observers to
a roller coaster ride of meteoric rise and catastrophic fall, dot.com
companies put the subject of electronic commerce and the Internet on the
financial "map." This book, however, is not about the rise and fall of
the dot.com business category. Rather, it showcases how to use the
Internet as a business enhancement tool and electronic commerce as a
revenue generator, benefiting in part from the lessons learned through
the gyrations of the dot.com ride.
Well-organized and replete with charts, the book is a worthwhile
primer on the basics of business strategy and planning. It does not
offer instruction about technical competence in the medium itself.
Unfortunately, this book also does not apply Internet business strategy
to a law firm environment, though it does cover the service firm aspect
through the Internet experiences of the financial brokerage
industry.
While information about how to apply Internet business strategy to
law firms or other legal service entities is lacking, the book is a
worthwhile read for people who are curious about the Internet and
electronic commerce in general and provides insight into why some
businesses have succeeded using the Internet and others have failed.
However, be prepared for some poor editing (mainly typos) in some
chapters. The book also drags in certain places and becomes a bit
redundant at the end. The author's ability to organize his strategic
hierarchy from the start inherently creates this redundancy.
To successfully use the Internet and electronic commerce, the author
suggests: develop a business model; develop a strategy around that
model; determine how the current organizational design fits the
strategy; execute the plan; and prepare for change, such as new
competition and changing technology. The author breaks down these
threshold tenets into subsets. For example, to develop sound strategy, a
firm must identify its rare, valuable, inimitable, and nonsubstitutable
resources. The author references these four strategic constructs
throughout the text, using experiences from numerous business categories
as models of what to do and what not to do in this rapidly changing
environment.
This book is a must read if you believe, as the author states in the
beginning of Chapter 1 that: "Firms that fail to understand new models
of strategy to apply to a new economy dominated by the Internet are
unlikely to survive in the twenty-first century." If you are starting
from the beginning, need help getting started, or are curious about how
the Internet and electronic commerce "work," you might want to add this
book to your library. If you are looking for a book that teaches how a
law firm can find success with the Internet and electronic commerce,
this isn't the book for you. However, if you follow the author's format
for success, you might just write the book on using the Internet for
legal services.
Beyond Our Control? Confronting the Limits of
Our Legal System in the Age of Cyberspace
By Stuart Biegel (Cambridge, MA: The MIT Press, 2001). 452
pgs. $34.95. Order, (800) 356-0343.
Reviewed by Lisa A. Mazzie
"Thus we have found that no single regulatory formula is appropriate
for the online world." With that sentence, author Stuart Biegel
succinctly summarizes the previous 358 pages of his book. It is
unfortunate for the reader that this conclusion isn't available
sooner.
With the pervasiveness of the Internet and people's increasing
reliance on it, it is natural and expected that we should see a
published work on the law's ability to affect and control the Internet.
Indeed, the Internet and online world are, like Biegel says, a sort of
"Wild West ... a lawless frontier where anarchy and vigilantism are
alive and well." As with the Wild West, there are people who want the
online world to remain free, and people who want to rein it in. This
book is Biegel's attempt to straddle both views and bring them together.
And while Biegel's work is well-organized in its three lengthy parts, it
is dense in its delivery.
Biegel begins with background on the Internet's development and
spends a lot of space analogizing cyberspace to the Wild West to
ascertain just how conduct in the online world compares to the offline
world. Biegel then determines that the problem areas in cyberspace can
be divided into four categories of conduct ranging from the most harmful
to mostly just troublesome. Biegel concludes Part I by summarizing our
current legal system's limits. In Part II, Biegel presents in
painstaking detail his three regulatory models: traditional national
regulation, international regulation, and code-based regulation. In Part
III, he applies his theories to the four areas of potentially
problematic online conduct.
Finally, Biegel concludes what most people already know: there is
probably no single regulatory regime that can affect all of cyberspace.
Biegel's contribution to the field, though, should not be dismissed. In
his conclusion, he sets forth 20 "regulatory principles [to] ... serve
as important guidelines for the resolution of Internet-related problems
in the coming decade." All in all, these principles may represent a
comprehensive approach for people interested in developing and studying
Internet regulation.
Civil Law Handbook: Psychiatric &
Psychological Evidence & Testimony
By John Parry & Eric Y. Drogin (Chicago, IL: ABA
Commission on Mental & Physical Disability Law, 2001). 376 pgs. $60.
Order, (800) 285-2221.
Reviewed by D. Katerinos
The Civil Law Handbook: Psychiatric & Psychological Evidence
& Testimony is a well-written, comprehensive work for
practitioners who may have little prior experience with this topic.
Covering expert and layperson perspectives, the authors introduce the
subject by explaining the general concepts and principles in this
area.
A considerably more detailed explanation of the clinical
classifications follows, through a brief review of the development and
modern classification scheme used by medical practitioners via the
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and its
use by experts in the field. There is a fine breakdown of the more
common disorders and an overview of what is entailed in a mental health
assessment.
The six most common types of legal incompetence are explained, and
expert testimony is reviewed in the light of each of these. Limitations
on this testimony are considered from a standpoint of admissibility,
expertise, and privilege concepts. The book shifts here from a prevalent
clinical basis to more of a legal focus in examining the section on
dangerousness to self or others. The general constitutional parameters
regarding involuntary civil commitment are outlined in a clear and
interesting manner as historically developed from O'Connor v.
Donaldson (1975) to the more recent U.S. Supreme Court examination
in Seling v. Young (2001).
Patient care and treatment is examined from the liability perspective
of mental health providers and associated organizations as to whether
they have met an acceptable standard of care in treatment. Special
attention is given to potential defenses that may eliminate or mitigate
provider liability.
The final chapter is devoted to preserving rights or entitlements via
proof of mental impairment for applications such as the ADA and Social
Security Act, and it concludes with a plethora of additional sources in
a subdivided appendix covering the entire tome.
The Legal Career Guide: From Law Student to
Lawyer, 4th Ed.
By Gary A. Munneke (Chicago, IL: ABA Law Practice Management
Section, 2002). 328 pgs. $24.95. Order, (800) 285-2221.
Reviewed by Cynthia J. Schally
"What do you want to be when you grow up?"
By choosing law school, students begin to answer that question. This
ABA publication is a road map for the transition from law student to
working lawyer. Using plain, sometimes blunt language, author Gary
Munneke sets out a step-by-step approach that can be easily customized
to personal circumstances. Munneke's own career path is an illustration
of the law of unintended consequences. While a law student at the
University of Texas, he complained about its placement services. He was
asked by the dean to conduct a study of placement services and to issue
a report, after which he was hired by the dean to implement it.
This guide shows that the universe of career possibilities is not
comprised of the single planet of private practice, and outlines how to
assess all options. Munneke differentiates between a "career" (who you
are) and a "job" (what you do), and points out that the law school
experience provides assimilation into legal culture, as well as
development of legal and personal skills. Whether you practice or not,
your thought process is changed forever.
Specifically, Munneke advises students to perform a three-step career
choice process, including analyzing personal and professional skills;
assessing the marketplace; and synthesizing skills, interests, and
opportunities. Options should be prioritized on a continuum from optimal
to least desirable. One helpful tip is to transform the vertical "career
ladder" into a horizontal "expansion of possibilities." The truly
essential step is to do an honest self-appraisal, the earlier in law
school the better.
This guide would be a thoughtful gift for a first-year student who
has survived first semester exams, and who should start thinking
creatively and concretely about what's next.
Uniform Probate Code: Official Text,
Comments, History
By CCH Editorial Staff (Riverwoods, IL: CCH Inc., 2001).
1,590 pgs. $85. Order, (800) 248-3248.
Reviewed by David B. Kuehner
This is a useful but unexciting book.
Almost every state has enacted at least part of the Uniform Probate
Code (UPC). Nearly 20 states have enacted the entire code. With this in
mind, the folks at CCH have published this one-size-fits-all volume. It
contains the entire official text and comments for all the free-standing
acts found in the UPC. The book includes all amendments, revisions and
updates. The text and comments are followed by historical notes. The
book includes a topical index. The mission of this book is modest and
straightforward - it is simply an annotated codebook. As such, it is
predictably well organized.
This book also includes the full official text and comments of the
recently approved Uniform Trust Code (UTC). Enacted in 2000, the UTC may
someday prove as influential as the UPC.
Whether directed toward the UPC or the UTC, official comments can
enhance the understanding of various individual code provisions.
However, states seldom enact the actual comments, so they can be
difficult to locate. This book puts all the comments in one easy-to-use
volume.
For the novice, this book provides easy access to relevant background
information. For the veteran, it makes a useful reference guide for
those out-of-the ordinary issues. In either case, the book's value lies
in its comprehensiveness and ease of use.
CCH has conveniently placed the UPC and the UTC in one user-friendly
volume. This book will prove a handy and useful tool to the probate and
trust practitioner.
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.
Publications and videos available for review
- An Estate Planner's Guide to Qualified Retirement Plan Benefits,
Third Edition, by Louis A. Mezzullo (Chicago, IL: ABA Real Property,
Probate & Trust Law Section, 2002). 171 pgs.
- Federal Habeas Corpus, by Steven M. Statsinger (Notre Dame, IN:
National Institute for Trial Advocacy, 2002). 58 pgs.
- Internet Forms and Commentary: A Practitioner's Guide to E-Commerce
Contracts and the World Wide Web, edited by Jonathan B. Wilson &
Julia Alpert Gladstone (Chicago, IL: ABA Business Law and Public
Untility, Communications, and Transportation Law sections, 2002). 138
pgs., with CD-ROM.
Wisconsin
Lawyer