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    Wisconsin Lawyer
    September 01, 1997

    Wisconsin Lawyer September 1997: Book Reviews

     


    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 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.



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