Vol. 70, No. 9, September
1997
Book Reviews
The Attorney's Guide
to the Seventh Circuit Court of Appeals
By 25 authors representing the Seventh Circuit Bar Association (Madison,
WI: State Bar CLE Books, 1996). 400+ pgs. $95. To order, call (800) 362-8096.
Reviewed by Nicholas C. Zales
Coauthored by numerous appellate attorneys, The
Attorney's Guide to the Seventh Circuit Court of Appeals provides
a wealth of knowledge on 7th Circuit appellate practice and procedure. It
demystifies the appellate process by providing useful and practical information
in an easy-to-read fashion. Whether you are an old hand at appellate work
or considering your first appeal, this book will save you a great deal of
time, effort and aggravation.
State Bar CLE Books
- The Guardian ad Litem Handbook,
Second Edition, by Joan N. Alschuler et al. (Madison, WI: State
Bar CLE Books, 1997). 230 pgs.
- Wisconsin Discovery Law &
Practice, Second Edition, by Richard L. Bolton et al. (Madison,
WI: State Bar CLE Books, 1997). 525 pgs.
- Workbook for Wisconsin Estate
Planners, Third Edition, by Mark J. Bradley et al. (Madison, WI:
State Bar CLE Books, 1997). 735 pgs.
- Worker's Compensation Handbook,
Fourth Edition, by John D. Neal and Joseph Danas Jr. (Madison, WI:
State Bar CLE Books, 1997). 400+ pgs.
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The single volume's 16 chapters cover everything from the organization
of the court to damages and frivolous appeals. Covering both criminal and
civil appeals, the book is laid out in typical State Bar fashion. Ordered
sequentially, each chapter has a detailed table of contents and contains
a wealth of detailed analysis, insight and authority. The authors provide
countless invaluable suggestions based upon their experiences. For many
purposes, the information in a chapter will completely answer your questions
and give you the authority you need to cite. In other cases the information
provides a solid starting point for further research.
Sprinkled throughout the book are useful charts and numbered lists summarizing
a course of action and providing great detail on one or two pages. There
are examples of what your brief and related papers should look like. Summarized
information like this is invaluable.
In addition to its excellent charts and summaries, the book contains
an appendix that sets forth the complete Federal Rules of Appellate Procedure
and the corresponding 7th Circuit Local Rule. Three other appendices contain
the 7th Circuit's operating procedures, plans for the circuit and instructions
for connecting your computer to the 7th Circuit's electronic docket and
bulletin board system.
The goal of intricate appellate procedure is not to make life difficult
for the attorney, but to make it easier for the judge. To that end, there
are many helpful tips about presenting your case not just so it complies
with the rules, but so it complies, is helpful to the court and presents
your case in the best possible light.
Using a book is the real test; this book aced the exam. I found its discussion
on the issue of appellate sanctions for improperly seeking sanctions to
be excellent. Using it on her first appeal in an employment discrimination
action, a colleague found the book logical and helpful, and noted it answered
all her procedural questions. Another attorney used the book to successfully
obtain sanctions in defending against a frivolous appeal. Neither colleague
had taken an appeal before, and both found the book very useful. By providing
answers to their procedural questions they were able to focus on the merits
of the issues.
This guide separates the wheat from the chaff and gives attorneys a wealth
of detailed useful information. When considering an appeal or appeal-related
issue, it is the first reference I look to.
Nicholas C. Zales, Marquette 1989, is a solo practitioner
in Milwaukee. He served on the State Bar Board of Governors from 1995-97.
Between Facts and Norms:
Contributions to a Discourse Theory
of Law and Democracy
By Jurgen Habermas (Cambridge, MA: The MIT Press, 1996). 630 pgs.
Hardcover. $40. To order, call (800) 356-0343.
Reviewed by James J. Casey Jr.
If you are in the mood to read a highly dense and challenging book, then
Jurgen Habermas' Between Facts and Norms: Contributions to a Discourse
Theory of Law and Democracy, translated into English for the first time
by William Rehg, is the book for you. Not only does Habermas outline an
alternative legal-political theory concerning the relationship between law
and politics ("Facts and Norms") but he addresses academically
challenging topics such as the relationship between law and morality, the
natural law origins of Western-conceived political democracy, and whether
"positive law," that is, law enacted by democratically elected
legislatures, has a legitimacy separate from questions of morality, ethics
and other metaphysical sources, such as religion. In short, even if you
do not agree with his theory or analysis, there still are enough issues
to consider and analyze on your own. This book is geared to the academically
inclined, and its translation into English makes for laborious and sometimes
difficult reading. That said, those problems should not obscure the fact
that this book provokes as much thought as it provides theory.
The theory he propounds is: An internal relationship exists, separate
from historical association, between the rule of law and democracy, where
democratic procedures make it possible for the discussion of issues, information,
contributions and reasons. This process provides the groundwork for political
opinion and will formation, thereby providing the inherent legitimacy required
for the rule of law to be perceived as reasonable by the general population.
The key to this theory lies in the discourse generated by participants in
this process. Like most modern Western legal and political thought, he asserts
that this theory solves the tension between facts and norms.
This theory, while simplified for obvious reasons, on its face seems
similar to what people in the West consider as democracy. However, several
important facts bear explanation and can be construed as controversial.
One point is that, under this theory, "natural law" (based on
a higher order, including morality and ethics) is separate from "positive
law." This is a departure from much of Western political thought over
the past 300 years. A related point is that law and morality in this theory
are two separate though related spheres. His theory rejects the natural
law postulate that positive law is subordinate to the moral law.
An immediate argument can be raised whether, in fact, law and morality
are two separate but related spheres. In an age when it is asserted that
morals are declining, and that laws must be strengthened to reinforce those
morals, his analysis of this dichotomy is particularly relevant.
A second major point is whether the democratic process, by itself, provides
sufficient legitimization of laws that are passed pursuant to those processes.
A major strand of Western political thought over the past 300 years is the
protection of the minority against the tyranny of the majority, primarily
through the promulgation of laws. Habermas solves this problem by explaining
that, although law and morality are separate spheres, morality still finds
its way into law through the legislative (democratic) process; which may
or may not happen. Certainly a structural argument can be made that sometimes
political structures are constituted
in such a way as to lock out certain groups from the legislative process.
If one subscribes to the Elitist view of American democracy, the structuralist
argument becomes more important. It also raises the question whether Habermas'
dichotomy has more form rather than substance. Habermas could do a better
job at outlining structural impediments to access in the decisionmaking
apparatus. These impediments can cause questions to be raised with regards
to the inherent legitimacy of the democratic legislative process in his
model. And there is no denying that morality and ethics will continue to
play a major role in the promulgation of laws.
At 636 pages, this book is of no practical use to the practicing attorney.
It does, however, contain a treasure trove of intellectual ideas and suggestions.
James J. Casey Jr., Dayton 1988, is a sponsored
program officer at Northwestern University and an adjunct faculty member
of public administration and law at Upper Iowa University. He also holds
M.A. and M.P.A. degrees from Marquette University and the University of
Dayton, respectively.
Business & Legal Guide
to Online Internet Law
By Jon A. Baumgarten, Michael A. Epstein, Allen R. Grogan, Ronald
L. Johnston and R. Bruce Rich (Little Falls, NJ: Glasser Legal Works, 1997).
489 pgs. Hardcover. $95. To order, call (800) 308-1700.
Reviewed by Todd C. Lowry
The Internet is changing the way people communicate and the way companies
do business. The Internet also is transforming the law with new legal challenges
that are unique to the online world. This book attempts to provide some
guidance to the new area of online law and is a timely and useful introduction
to this area.
The book is divided into 11 chapters, each of which comprises an ample,
stand-alone article addressing a particular aspect of online law.
The first chapter briefly introduces "The Emerging Online World."
Online services are becoming important new distribution channels for recordings,
books and motion pictures. Chapter 2 discusses general issues in obtaining
and clearing rights for the online use of preexisting, copyrighted materials,
such as literary works, film footage, photographs and music. It also deals
with the issues in drafting licenses that will cover both current and future
technologies.
Joint ventures and other forms of strategic partnering are increasing
in the online world because of the advantages of sharing financing and risks
that such forms provide to companies. Chapter 3 covers the contractual and
business issues in structuring a joint venture.
Chapter 4, "Electronic Contracting," covers the issues that
arise when contracts are formed through the media of email and the Internet.
Such issues include choice of applicable law, determining whether legitimate
offer and acceptance occurred, statute of frauds requirements online and
"digital signatures."
Copyright issues peculiar to the online environment, particularly the
mass uploading and downloading of copyrighted works on the Internet and
the potential liability of online service providers for contributory copyright
infringement, are discussed in Chapter 5. A chapter each is devoted to discussions
of trade secret protection online and the role of patent protection online.
Another chapter covers the rules and procedures for obtaining domain names
and how such rules may or may not conflict with traditional trademark law.
Chapter 9 discusses liability of online service providers for torts such
as defamation and invasion of privacy. Chapter 10 discusses "Crimes
Online," covering both crimes where the computer is a target of the
crime, such as computer espionage by hackers, and crimes where a computer
is used as an instrument to commit the crime, such as illegal gambling online
and online pornography. Also discussed is the potential liability that the
use of email and online services by employees can create for the employer.
Chapter 11 discusses the Telecommunications Act of 1996, including the
"Communications Decency Act." The book's discussion of this latter
Act has been rendered moot by the U.S. Supreme Court's July decision that
declared the Communications Decency Act unconstitutional.
Overall, this book is a useful introduction in a single volume to the
basic legal issues raised by the Internet and other online mediums. The
book logically applies the traditional principles of intellectual property
law and business law to the emerging online world.
However, it is not without flaws. The articles, while readable, seem
somewhat abstract in nature. It would be nice to have the legal principles
applied in more concrete, real-life ways. Citations are made to the leading
cases and an index is provided, but there is no bibliography. Also, there
are no appendices or sample forms.
Still, the book is a useful resource and will provide attorneys a solid
basic background to online issues.
Todd Lowry, Minnesota 1991, is a sole practitioner
in Racine focusing on entertainment and publishing law.
The Ethical Family Lawyer:
A Practical Guide to Avoiding
Professional Dilemmas
By Louis Parley (Chicago, IL: ABA Family Law Section, 1996). $64.95.
To order, call (800) 285-2221.
Reviewed by Victor Dana Brooks
Recently, as family law litigants and their attorneys waited in the gallery
for their status conferences, a member of the local bar advised the court
that he was representing both sides in a stipulated divorce action. As the
parties laid out the terms of their stipulations for the record, even some
of the lay people in the gallery realized that the agreement posed several
serious problems. One local bar member was heard to say, "How thoughtful
of Attorney X to create work for the malpractice bar, the defense bar and
the family law bar all in one case." Had my colleague skimmed The
Ethical Family Lawyer, he might have avoided some embarrassment and
potential liability.
Mr. Parley's work is divided into four parts. The first three deal with
establishing and maintaining the attorney-client relationship. The fourth
addresses ethical considerations in family law cases in which attorneys
are parties. Each part is divided into chapters that deal with issues such
as conflicts of interest, competence, fees, retainer agreements, diligence,
confidences, candor toward a tribunal and dealing with underrepresented
parties. Each chapter describes the major ethical principles considered
in that chapter, interleaved with specific examples of problems that practitioners
may confront. The examples usually are drawn from ethical opinions, rulings
or disciplinary hearings that arose from family law cases.
Parley describes his work as a primer, an overview of the law of ethics
in the context of family law practice. As a primer, it does not address
larger issues, nor does it consider any issue in depth. He analyzes all
problems under the ABA Model Code of Professional Responsibility and the
ABA Model Rules of Professional Conduct. This dual analysis results in a
presentation of both the intended principle and the intended consequence
of the application
of the principle. The analysis generally is accompanied by at least some
reference to case law or bar association ethics opinion. On any particular
issue, readers should be aware that the analysis described in the book may
not apply in Wisconsin, which has adopted a modified version of the Model
Rules.
The Ethical Family Lawyer contains no surprises for experienced
practitioners who will recognize the examples, good and bad, from their
practice, whether in family law or in some other area. This book may serve
as an introduction to ethical problems in a realistic context for law students
or new lawyers, or as a refresher for attorneys who have not practiced recently,
provided the work is supplemented with a reference to Wisconsin's rules
and ethical opinions.
All this leaves unanswered the question of whether an experienced lawyer
who chooses not to see a conflict will benefit from Mr. Parley's effort.
I could give my colleague a copy, but there is little enough entertainment
in a small town.
Victor Dana Brooks, Northeastern 1972, is a shareholder
in Brooks & Martel S.C. with offices in Sturgeon Bay, Wis.
Milwaukee Winters Can Be Murder
By Kathleen Anne Barrett (New York, NY: Avalon Books, 1996). Novel.
404 pgs. $17.95. To order, call (800) 223-5251.
Reviewed by Ellen M. Kozak
I really wanted to like this book. As a publishing lawyer with five books
- two of them novels - to my credit, I am predisposed to sympathize with
other attorneys who want to make the jump from pleadings to publication.
But from the very first sentence, it was obvious to me that Kathleen
Anne Barrett shouldn't have attempted the jump, at least not with Milwaukee
Winters Can Be Murder. But judge for yourself; here's that first sentence:
"Beth! What the heck happened?" Emily said as she rushed into
my kitchen.
No one in this book verbalizes in any way other than saying; they
almost never ask, demand, query, exclaim, stutter, mutter or gulp. The action
is confined to the main character, Beth Hartley, ostensibly a Milwaukee
lawyer who makes her living writing briefs for other attorneys; however,
if her solving of this mystery is any indication of her reasoning power,
those other attorneys lose a lot of cases.
Most of the time, this main character does little more than drive hither
and yon (often by the least direct route just so she can throw in another
street name) and eat bananas. The plot - her secretary's brother has committed
suicide, but the secretary thinks he was murdered - is far from gripping,
and the characters are one-dimensional. The only setting details provided
are extensive descriptions of the placement of furniture.
Had Ms. Barrett's protagonist possessed even minimal legal savvy, she
would have asked a lot more questions early on, reviewed the death certificate,
called the police and the Medical Examiner's Office. Instead, she resorts
to Nancy Drew sleuthing - opening letters, peeking into the bedroom of the
deceased's roommate - all for information she could have garnered by asking
the kind of questions any one of us would ask of any new client.
As a result, there is little law in this mystery, and indeed, very little mystery
- but there is a lot of driving on 894, I43 and South 76th Street (which
she drives down, which usually means south, to get from Southridge to Bluemound
Road, which lies north of that shopping mall). She also drives from Farwell
and North to Newberry via Lincoln Memorial Drive (which Milwaukeeans would
call "driving along the lakefront") on an icy day - an out-of-the-way
excursion likely to endanger life, limb and fender.
Barrett's characters fly into Milwaukee on Midwestern (not Northwest
or Midwest Express), although she has no hesitancy about naming restaurants
like Baker's Square and Ma Fischer's for local color. And Beth Hartley's
mother grows gardenias in windowboxes in Wauwatosa, a trick I'd love to
duplicate; all the Wisconsin gardeners I know settle for geraniums in this
climate.
If you're looking for a local John Grisham novel, this isn't it.
Ellen M. Kozak is a Milwaukee copyright and publishing
lawyer and the author of two published science fiction novels and four nonfiction
books, including From Pen to Print: The Secrets of Getting Published
Successfully.
A Matter of Interpretation:
Federal Courts and the Law
An Essay by Antonin Scalia with Commentary by Amy Gutmann, Gordon
S. Wood, Laurence H. Tribe, Mary Ann Glendon and Ronald Dworkin (Princeton,
NJ: Princeton University Press, 1997). 159 pgs. $19.95.
Reviewed by Michael B. Brennan
In this thin volume, which explains how legal texts are construed and
suggests improvements, U.S. Supreme Court Justice Antonin Scalia espouses
textualism as the correct philosophy of legal interpretation. Laws mean
what they say. The law is the objective indication of words in a regulation,
statute or constitution. The text's original meaning, applied to present
circumstances, should govern judicial interpretation of statutes and the
Constitution.
Justice Scalia's interpretive method is straightforward: "What I
look for in the Constitution is precisely what I look for in a statute:
the original meaning of the text, not what the original draftsmen intended."
Judges must do their best to figure out, first, the original meaning of
laws; and second, the practical implications given new contexts for those
original meanings. This helps judges arrive at definite interpretations
of the text even when the words are ambiguous.
For Justice Scalia, legislative intent is not law, and thus should not
be used as an authoritative indication of a statute's meaning. A government
of laws, not men, means that the unexpressed intent of legislators must
not bind citizens; nor should canons or presumptions of statutory construction,
which he terms sheer judicial power-grab[s]. He assails interpretive methods
that discern constitutional rights in provisions textually incapable of
containing them (especially the Due Process Clause of the Fifth and Fourteenth
Amendments). Interestingly, he does not advocate strict constructionism:
"A text should not be construed strictly, and it should not be construed
leniently; it should be construed reasonably, to contain all that it fairly
means."
Justice Scalia also offers an important systemic point: Federal courts
are common-law courts in a civil law system. The Constitution's separation
of powers makes for an uncomfortable relationship between common-law judging
and democracy. Because every issue of law resolved by a federal judge involves
interpretation of a text, common-law interpretive techniques can import
judges' policy preferences rather than neutral principles of law, a sure
recipe for incompetence and usurpation. Only with textualism can judges
interpret statutory and constitutional law in a manner consistent with a
democratic constitution.
Commentaries by four academics follow Justice Scalia's short essay. Gordon
Wood, an historian, worries that Justice Scalia underestimates the degree
to which judicial lawmaking is part of American constitutional democracy.
The Constitution's text has primacy for Laurence Tribe, but he would look
outside that document for interpretive guidance as well. Mary Ann Glendon
agrees with Justice Scalia that many interpretive woes are due to the common-law
method, but she still finds value in it, even if it is ill-adapted to statutory
and constitutional interpretation. To Ronald Dworkin, key constitutional
provisions set out abstract principles, the application of which to particular
cases requires fresh judgment that must be reviewed continually. Justice
Scalia then responds to these comments.
This book advances a powerful argument for textualist legal interpretation. It
devastates the theory of a living Constitution as a body of law that evolves
from age-to-age to meet the transient needs of a changing society. Justice
Scalia shows that idea to be incompatible with the antievolutionary purpose
of a constitution, exposes it for its lack of a guiding principle, and demonstrates
how it shackles democratic government with new restrictions, not eliminates
old ones:
"If the courts are free to write the Constitution anew, they will,
by God, write it the way the majority wants; the appointment and confirmation
process will see to that. This, of course, is the end of the Bill of Rights,
whose meaning will be committed to the very body it was meant to protect
against: the majority. By trying to make the Constitution do everything
that needs doing from age-to-age, we shall have caused it to do nothing
at all."
Michael B. Brennan, Northwestern 1989, begins
this fall as an assistant district attorney for Milwaukee County. |