Free Expression in America: A
Documentary History
Edited by Sheila Suess Kennedy (Westport, CT: Greenwood
Press, 1999). 368 pgs. $49.95.
Reviewed by John A. Neuenschwander
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The issue of free expression in America is everywhere. One can scarcely
pick up a newspaper or catch a news program on television without
encountering someone's claim that his or her right to free expression
has been compromised or suppressed. First Amendment claims have become
both a sword and/or shield in today's America.
For those who would like to understand how the issue of free
expression became so omnipresent, this slim volume is a good place to
start. The book traces the evolution of the First Amendment from its
colonial roots to the present day by presenting carefully chosen
excerpts from court cases, statutes, and essays that elucidate this long
journey.
Sheila Suess Kennedy, the editor, is an assistant professor of law
and public policy at Indiana University. To her credit, she has
carefully sifted through the vast array of sources on the issue of free
expression in America and come up with a very balanced collection.
Rather than merely relying on major U.S. Supreme Court cases, as so many
editors have done, Kennedy includes key state court cases such as
Wisconsin v. Mitchell (1993), as well as timely essays, including one on
the censorship of films in 1915 from Nation and Hugh Hefner's "The
Playboy Philosophy," which he espoused when he began his venture in
1963. Kennedy also brings the volume right up to the present by
including materials on the issue of free expression in cyberspace. Each
selection is preceded by an editor's introduction to provide the context
and reasons for inclusion.
For readers who like to rummage around in the sources to try and
understand an issue, this would be an excellent choice. Given the sound
organization and major emphasis on free expression in the 20th century,
one does not have to read the book from cover to cover, but can focus on
a particular issue or incident that is of relevance and read the
appropriate sources.
John A. Neuenschwander, IIT Chicago-Kent 1983, is the municipal judge
for the city of Kenosha. He also is a history professor at Carthage
College, teaching American history..
Assigning Retirement Benefits in
Divorce, 2d Edition
By Gale S. Finley (Chicago, IL: ABA Family Law Section,
1999). 250 pgs. $89.95.
Reviewed by Martin A. Blumenthal
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This book is a "must have" for every family law or general
practitioner who handles divorces. The author speaks to her colleagues
in a conversational and humorous style about the wonderful world of
QDROs (Qualified Domestic Relations Orders). She assumes no prior
knowledge of the reader of what a QDRO is. She summarizes the different
types of retirement plans and when a plan is subject to the need for
QDRO. The book explains the statutory authorities (ERISA and the
Internal Revenue Code) and how they interact to require a QDRO in the
first place.
Basically, if the retirement plan is subject to ERISA and is
qualified for special tax treatment under the Internal Revenue Code,
payments to retirees cannot be assigned to someone or something else
without losing their tax status. Congress therefore provided in ERISA
that a QDRO can get around this restriction in order to assign benefits
to a former spouse. This may sound easy in theory, but in practice,
creating the order to meet strict drafting guidelines, avoid ambiguity,
and get it signed by the judge as quickly as possible is a difficult
path strewn with traps for the unwary.
A separate chapter describes other types of retirement plans such as
military, state government, federal government, IRAs, and so on. These
plans have their own, sometimes less complicated, ways of assigning
benefits to a former spouse.
The author includes model QDRO provisions and a well-stocked appendix
containing applicable statutes, sample orders, worksheets, checklists,
and authorization forms.
Martin A. Blumenthal, IIT Chicago-Kent 1981, of Northfield, Ill.,
practices law in Illinois and Wisconsin. He also is a CPA.
The EPL Book: The
Practical Guide to Employment Practices Liability and
Insurance
By Gary W. Griffin, Andrew Kaplan, Rachel McKinney, Beth A.
Schroeder & Leonard Surdyk (Newport Beach, CA: Griffin
Communications, 1999). 608 pgs. $135.
Reviewed by Keith B. Daniels
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The last two decades have seen an explosion of administrative action
and litigation against employers by employees claiming to be victims of
various types of discrimination and harassment prohibited by federal and
state statutes and local ordinances. Responding to the growing exposures
to employment claims that employers face, insurers have leapt into the
field to market Employment Practices Liability Insurance (EPLI)
policies. The first of these policies appeared in the early 1990s.
Today, more than 60 insurers offer EPLI products in the U.S. market.
The increasing frequency of claims and severity of exposure, the
evolution of employment law, and the plethora of competing EPLI forms
(and their lack of uniformity), render the EPL Book a useful primer for
attorneys advising their clients on the purchase of EPLI; for risk
managers, insurance agents and brokers; and insurance underwriting and
claims personnel.
The book essentially is comprised of four parts. The first section
provides an introduction to the history of employment practices claims
and an easily understandable discussion of the federal laws that form
the basis for the majority of employment claims - Title VII of the Civil
Rights Act of 1964, and the Americans with Disability Act, the Age
Discrimination in Employment Act, the Family Medical Leave Act, and the
Equal Pay Act. Other less frequently asserted federal claims also are
explained. State law claims and various common law tort theories of
action also are addressed. Thus, readers can see the interplay of
federal and state law.
The second section pertains to developing a risk management strategy.
Good information on steps to take to prevent claims, design policies,
conduct training, and handle employment claims is provided.
The third section offers an explanation of typical EPLI policy terms
and standard clauses. The meaning and effect of "claims made" versus
"occurrence" policies is detailed, as well as such other provisions as
the "hammer clause" that is present in some policies, punitive damages,
coverage, and so on. The book's authors provide valuable suggestions and
cautions for unsophisticated EPLI purchasers.
The fourth section makes the EPL Book unique from other books and
articles that also ably discuss the topics of the first three sections.
In this section, the authors provide a side-by-side comparison of 30 of
the most-often-purchased EPLI policies at the time this book was
written. The comparisons are presented in easy-to-understand tables that
allow for a quick analysis of which particular EPLI policy form may be
best suited for a particular insured. As the authors make clear, EPLI is
not a standard commodity for which price should be the insured's only
consideration.
In conclusion, few, if any, books are available that compare to The
EPL Book in its entirety. The book's unique strength is the policy
comparisons and discussion of the policy terminology. These matters are
not addressed in most law school classes on employment law in continuing
legal education courses. The book may considerably enlighten most
readers.
The book is excellent; however, a reader cannot take it as gospel.
Employment law continues to evolve, and the U.S. Supreme Court recently
decided several important cases that are not addressed in this edition.
Further, while the policy comparisons cover a large portion of the EPLI
market, there are other EPLI policies on the market (and more become
available every day) which may offer even more favorable coverage terms
than the policies mentioned in this book. Further, several of the
policies addressed have been altered, at least in part, to provide
expanded coverage reflecting the heated competition in the EPLI market.
These comments are not intended as criticism. Rather, they reflect the
reality that in today's world neither the law of employment nor
insurance competitors stand still. However, even given this caution,
this is a book for anyone interested in employment practices liability
matters.
Keith B. Daniels, U.W. 1998, practices in the Chicago, Ill., office
of Blatt, Hammesfahr & Eaton. He represents insurers on matters
involving professional liability insurance, including EPLIs.
LSAT: The
Official TriplePrep, Vols. 1 & 2
By the
Law School Admission Council (New York, NY: Random House,
1999). 288 pgs. $15.95 each.
Reviewed by Robert J. Heinrich
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If you have to take the LSAT, it does not get any better than this:
previously administered LSATs. Each volume contains three actual LSATs
plus 30 sample writing exercises. Commercial test preparation courses
may claim to have engineered similar tests, but nothing beats the real
thing.
Only one notable difference exists between the exams in these books
and actual LSATs. An actual LSAT features five sets of questions (plus
the writing exercise), with one merely used to pretest new test items.
These books omit that superfluous section.
Each set of questions contains one of three question types: logical
reasoning (to which two of the four sets are always devoted), reading
comprehension, and analytical reasoning. The introductory materials
describe the question types and suggest useful approaches to attacking
them.
The introductory materials also provide pointers for the writing
exercise. However, your time should be devoted to practicing the other
questions, because the essay does not count towards your score (and
schools notoriously disregard it).
Hardcore test-takers will delight in filling in the bubbles for their
names on the answer sheets. Also included for every exam is an answer
key, along with a score-conversion chart, allowing the comparison of
results across exams.
The big drawback to these volumes is that the answer keys do not
explain the reasoning behind the answers. However, the LSAC does offer a
book with explanatory answers - LSAT: The Official TriplePrep Plus with
Explanations. So, if you could buy only one LSAC book, I would recommend
that one, sight unseen.
Another potential drawback to these volumes is that they contain
exams from the early 1990s. This is not a big deal. But if age worries
you, you could buy the rather dully-named 10 Actual, Official LSAT
PrepTests, which contains exams of more recent vintage.
Robert J. Heinrich, Minnesota 1998 cum laude, is a law clerk to the
Hon. S. Martin Teel Jr., in the U.S. Bankruptcy Court for the District
of Columbia.
The Supremes:
Essays on the Current Justices of the U.S. Supreme
Court
By Barbara A. Perry (New York, NY: Peter Lang Publishing,
1999). 176 pgs. $24.95.
Reviewed by Scott C. Amendola
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This book of brief and readable biographical essays is well-suited to
college students learning about the justices for the first time. Savvy
lawyers might be more interested in Bob Woodward's The Brethren, Max
Lerner's Nine Scorpions in a Bottle, or Edward Lazarus's Closed Chambers
for in-depth examinations of the Supreme Court's inner workings.
Biographical data is interspersed with commentary designed to be
thought-provoking. According to the introduction, while all the justices
have elite educational credentials, the white men had easier career
paths. Justices Breyer, Rehnquist, and Stevens parlayed their Harvard,
Stanford, and Northwestern legal educations into Supreme Court
clerkships, but Justices Ginsburg, O'Connor, and Thomas were unable to
secure private law firm employment upon graduation from Columbia,
Stanford, and Yale.
The book is leavened with interesting trivia. I already knew that
Chief Justice Rehnquist grew up in Shorewood, Wis., and that his robe's
gold stripes were inspired by a Gilbert and Sullivan operetta. I learned
that Rehnquist means "mountain goat" in Swedish, that he enrolled in law
school only after abandoning a Harvard graduate-degree program due to
the left-leaning campus, and that he dated Justice O'Connor during law
school.
Some of the trivia is not trivial. Justice Thomas benefitted from
affirmative action programs at Holy Cross College and Yale Law School,
according to the book, and he felt snubbed by his peers as an
"affirmative-action token." The reader is left to infer how these
experiences shaped him into an ardent affirmative-action opponent.
The book steers clear of extended forays into substantive law, but
sprinkles in enough to show the Court's ideological shift. Justice
Rehnquist was so frequently a solo dissenter in his early years on the
bench that his law clerks gave him a Lone Ranger doll. By 1997-98,
Justice Stevens was the most prolific solo dissenter and wrote the
fewest majority opinions of any of the justices, despite being the
second-most senior (and thus able to write or assign majority opinions
whenever Chief Justice Rehnquist was in the minority).
Legal formalists believe that law is like science or math: judges
identify the applicable legal rule, apply it to a case, and logically
deduce the outcome. Legal realists recognize that tough cases present
close questions that will be resolved differently by judges with
different life experiences, personalities, and ideologies. This book
should do a fine job of converting undergraduate students into informed
legal realists.
Scott C. Amendola, U.W. 1998, is a staff attorney for the U.S. Court
of Appeals for the Eighth Circuit.
A Theory of the
Trial
By Robert P. Burns (Princeton, NJ: Princeton University
Press, 1999). 247 pgs. $23.96.
Reviewed by Peter E. Hans
|
Focusing on a discussion of narrative techniques and linguistic
processes, the author of this scholarly text carefully examines the
structure of the American jury trial. Rather than showing the societal
importance of the jury trial by recounting tales of courtroom drama, the
author approaches his subject from the perspective of philosopher and
builds an argument proving its value. He ultimately proves that the
trial is an essential forum in a decent society where "the correct
tension among moral judgment, legal structuring, and public purpose is
achieved" through the performances that occur and the jury's almost
unfailing determination of the proper result.
Make no mistake; this author allows the reader no intellectual
laziness. Most paragraphs and sentences are quite long (for example, one
paragraph contains 11 sentences with an average length of 29.7 words),
and the text includes numerous quotations and footnote references to
other scholarly works.
This book is directed more to professors accustomed to reading law
review treatises than to practicing trial lawyers. Now and then, though,
trial lawyers should find time to contemplate why cross-examination is
essential to the jury's application of common sense. This well-thought
study contains genuine gems of insight for readers prepared to work hard
while mining for them.
Peter E. Hans, U.W. 1980, is an attorney with National Specialty
Insurance, Madison.
Trademark
Counterfeiting, Product Piracy, and the Billion Dollar Threat to the
U.S. Economy
By Paul R. Paradise (Westport, CT: Quorum Books,
1999). 288 pgs. $65.
Reviewed by Robert M. Weidenbaum
|
The author, in great detail, gives good information about the threat
to the U.S. economy caused by counterfeit goods. The book focuses on
several specific areas of goods where the U.S. has been harmed and/or
threatened by knockoff goods. There are chapters dealing with everything
from clothing and CDs, to automobile and airplane parts, watches, and
prescription drugs.
The book occasionally lags when Paradise outlines the laws that give
tools to those who fight counterfeits. The author's view of the various
federal laws and treaties used to combat counterfeiting is
uninteresting. For most attorneys, especially those who practice in the
field, such information is pretty well-known already. Readers may not
particularly care for the detailed history of the trade dispute with
China over such goods.
The other minor complaint is with the author's incessant and
occasionally confusing use of acronyms to refer to the many different
anti-piracy trade organizations or industry associations. The author
uses more acronyms than a computer programmer.
However, the book has enjoyable sections relative to the common law
and historical development of intellectual property. In the area of
intellectual property law, the dark ages weren't quite as dark as one
might think. Metalsmiths and even bakers encountered imitation problems
leading to anti-counterfeiting ordinances. For example, one early law
prohibited the sale of adulterated bread. The author also tells of
lawlessness by the U.S. in palming off sheet music to England in the
1800s. Eventually, the English passed legislation allowing seizure of
sheet music arriving by ship.
The book really comes to life when Paradise tells the "war stories"
of those who do on-the-street seizures of counterfeit merchandise.
Sprinkled throughout the book are numerous interesting and humorous
anecdotes from private investigators, attorneys, and even U.S.
government trade officials. The author shines in his storytelling.
One of the more interesting chapters covers the risks of doing
seizure actions. There are recollections of attorneys involved in
seizures who were faced with a variety of threats. The stories are
straight out of the University of "Don't-Try-This-at-Home" Law
School.
Another entertaining chapter profiles a particular private
investigator who specializes in gathering information for attorneys and
corporate clients about illegitimate products. Several stories are told
about what the investigator calls "utilizing a suitable ruse" to obtain
information for an ex parte seizure order. It should be no surprise that
these are the book's most entertaining sections. After all, it isn't the
study of case law that makes practicing law engaging. It is often the
cast of unusual characters and their stories that give each case meaning
and interest.
In sum, the basic premise as stated in the book's title is correct.
That is, counterfeiting and piracy are a billion-dollar threat. Paradise
makes a good case for the argument. Huge consumer demand, new
technologies, and a vague perception of the problem by the public and
sometimes law enforcement officials, are the main reasons for slow
solutions.
Robert M. Weidenbaum, Marquette 1980, practices in Milwaukee,
primarily in entertainment, copyright, licensing, and trademark law.
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. Reviewers may
keep the book they review. Reviews are published in the order in which
they are received. To purchase any book reviewed in this column, please
visit the State Bar's Web site, www.wisbar.org/bookstore/ for secure online
ordering, or contact the publisher, or ask your local bookstore to order
it for you.
Publications and videos available for review
- Atlas of Crime: Mapping the Criminal
Landscape, edited by Linda S. Turnbull, Elaine Hallisey
Hendrix, & Borden D. Dent (Phoenix, AZ: Oryx Press, 2000). 270
pgs.
- Business Valuation Bluebook: How Entrepreneurs Buy, Sell
and Trade, by Chad Simmons (Prairie Village, KS: The
Corinth Press, 2000). 244 pgs.
- Concise Guide to Successful Employment
Practices, third edition, by J.D. Thorne (Riverwoods, IL:
CCH Inc., 2000). 522 pgs.
- 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.
- Franchising for Dummies, by Dave Thomas
& Michael Seid (Foster City, CA: IDG Books Worldwide Inc., 2000).
378 pgs.
- Law Office Policy & Procedures Manual: Fourth
Edition, edited by Robert C. Wert & Howard I. Hatoff
(Chicago, IL: ABA Law Practice Management Section, 2000). With
diskette.
- On the Witness Stand: How to be a Great Witness When
You're Called to Court, by Robert Gordon & Ami Gordon
( Addison, TX: Wilmington Institute Network, 2000). 133 pgs.
- Qualified Retirement Plans for Small Businesses: A
Consultative Guide to Plan Design and Compliance, by Barry
R. Milberg (Riverwoods, IL: CCH Inc., 2000). 248 pgs.
- Run for Your Life, by Andrea Kane (New
York, NY: Pocket Books, 2000). 464 pgs. Fiction.
- Virtual Teams: People Working Across Boundaries with
Technology, by Jessica Lipnack & Jeffrey Stamps (New
York, NY: John Wiley & Sons). 317 pgs.
- The Women's Guide to Legal Issues, by
Nancy L. Jones & Phil Philcox (Los Angeles, CA: Renaissance Books,
2000). 414 pgs.
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