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Book Reviews
Changing
Your Mind: The Law of Regretted Decisions
By E. Allan Farnsworth (New Haven, CT: Yale University Press,
2000). 271 pgs. $16. Order, (203) 432-0964.
Reviewed by Lisa A. Mazzie
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Two centuries ago the French philosopher Jean-Jacques Rousseau said,
"It is absurd that the will should put itself in chains for the future."
Indeed, as a people we value the ability to change our minds in all kinds
of situations - from breaking off an engagement to marry, to deciding
not to sell a home after an accepted offer, to removing a bequest from
a will. Yet we all know there are limits - both moral and legal - to freely
changing our minds. Farnsworth's impeccably organized work, Changing Your
Mind: The Law of Regretted Decisions, provides a brilliant framework for
understanding the kinds of decisions you are stuck with, and the kinds
you can renege. More importantly, Farnsworth explains why.
The work is not simply a book on contract law. Farnsworth takes general
contract principles, but shows them at work in a variety of situations
where someone has had a change of mind, situations that would fall into
other areas of law - tort, property, wills, and family. He defines the
elementary contract notions of the intention principle and the reliance
principle, expounds on their legal development, and shows how they shape
the law behind enforcing or forgiving certain commitments. He also gives
several other principles that support enforcing or forgiving commitments:
the dependence principle, the public interest principle, the anti-speculation
principle, and the repose principle. These principles also are found in
the law behind the reversibility and irreversibility of relinquishments
and preclusions, a topic Farnsworth covers in the second part of the book.
Farnsworth's organization of the book, including his use of chapter summaries
and an "interlude" between the book's major sections, makes the reading
easier. He possesses a powerful command of the language, using examples
from classic literature along with examples from common case law to present
a readable text that is neither too disjointed nor too dry. Finally, he
ties his concepts neatly together in the epilogue.
In the end, Farnsworth concludes, there are some decisions you are just
going to have to regret. After reading his book, at least you'll understand
why.
Lisa A. Mazzie,
U.W. 1999 cum laude, Order of the Coif, is an associate at
Solheim Billing & Grimmer S.C., Madison.
Reflections
of a Radical Moderate
By Elliot Richardson (Boulder, CO: Westview Press, 2000). 320
pgs. $17. Order, (800) 386-5656.
Reviewed by Scott C. Amendola
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Among other things, Elliot Richardson clerked for Judge Learned Hand and
Justice Felix Frankfurter, was the U.S. Attorney for the District of Massachusetts,
and served in four cabinet positions: Health, Education, and Welfare Secretary;
Defense Secretary; Attorney General; and Commerce Secretary. He is best
known, however, for refusing President Nixon's order to fire Watergate special
prosecutor Archibald Cox when Cox pursued tapes of Nixon's White House conversations.
(Acting Attorney General Robert Bork ultimately fired Cox; believers in
karma were undoubtedly gratified by the Senate's rejection of Bork's nomination
to the US Supreme Court.)
Reflections of a Radical Moderate originally was published in
1996, and Richardson wrote a new preface before he died in 1999. While
ostensibly his memoirs, the book's real purpose is to promote public service
and re-energize American democracy. His call to action is two-pronged.
First, he insists the government "urgently needs a new generation of
gifted public servants" and bemoans the increasing numbers of talented
people who choose the private sector instead. Reflecting on his own experiences
and those of colleagues who left "responsible but not necessarily prominent"
government positions for "prestigious and well-paid" private sector jobs,
Richardson states that"not one finds his present occupation as rewarding
as his government service." He urges the government to enhance the attractiveness
of public sector jobs, and job seekers to put aside money in favor of
the satisfaction of making a difference.
Second, Richardson demands that citizens take an active role in democracy.
He chastises people for acquiescing to slogans rather than demanding substance,
selfishly preferring to satisfy short-term wants instead of responsibly
striving to meet long-term needs, and treating the political process as
a zero-sum game. As examples, he contrasts the electoral success of the
congressional candidates who ran on the Contract with America (of which
only a modest portion was enacted) with the failure of his own campaign
for a US Senate seat (which he attributes largely to his honesty regarding
the need to raise taxes as part of a responsible fiscal policy).
Richardson begins the book by describing the history of American democracy
in glowing terms, proceeds to identify the problems that now imperil its
continuing success, and finishes by suggesting how both the leaders and
the led can address these issues. Throughout, he exhorts everyone to put
aside their cynicism and do something. Readers of Reflections of a Radical
Moderate will be encouraged at least to try.
Scott C. Amendola,
U.W. 1998, is a staff attorney for the US Court of Appeals for the
Eighth Circuit, St. Louis, Mo.
Practices
and Principles: Approaches to Ethical and Legal Judgment
By Mark Tunick (Princeton, NJ: Princeton University Press, 2001).
256 pgs. $19.95. Order, (609) 258-5714.
Reviewed by Jill Madden Melchoir
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The best category for this book might be "for lawyers who are former philosophy
majors." In Practices and Principles, Tunick explores the tension
between absolutism and relativism. Tunick lays the groundwork by exploring
the philosophies of Kant (an advocate of the absolutist or "principle" theory
- that a behavior may be absolutely wrong even though all societies everywhere
condone it) and Hegel (who advocates a relativistic "practice" approach
- that in order to determine whether a behavior is wrong, one must look
to the society in which it occurs). It is clear that Tunick favors the Hegelian
view, but he attempts to differentiate his philosophy from Hegel's by stressing
that we should entertain "principled criticism." That is, we should look
to the practices of a society to determine whether a behavior is wrong,
but we also should be able to criticize them if necessary.
Tunick applies this theory to three areas: broken promises, breached
contracts, and search and seizure jurisprudence. He cites numerous cases
to support his theory that one may use principles to criticize the breaking
of a promise, the breach of a contract, or an unreasonable search and
seizure, but in the end one also must look to the practices of a society
to give meaning to the principles.
While the reader is left in general agreement with Tunick (the position
is not really radical), a sense of incompleteness remains. It would be
interesting to discover Tunick's criteria for deciding when to depart
from "principles" in judging a questionable search and seizure, for example,
and call upon the "practices" of our society. It seems that we as a society
already do use both principles and practices in making these decisions;
it is the framework that we lack.
Jill Madden Melchoir,
Cincinnati 1999, is an editorial manager for the Case Law Summaries Retrospective
Division of LexisNexis.
The
Government vs. Erotica: The Siege of Adam and Eve
By Philip D. Harvey (Amherst, NY: Prometheus Books, 2001).
250 pgs. $24. Order, (716) 691-0133.
Reviewed by Dennis Boyer
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Philip Harvey gives us a clear and concise look into the inner workings
of a modern day persecution based on a political conspiracy directed from
Washington, D.C., and involving US attorneys in a number of states. Harvey
is the successful entrepreneur who owns Adam and Eve, a catalog-based business
that sells contraceptives, sex toys, and adult videos. His memoir of his
eight-year legal struggle is a significant chronicle in the evolution of
First Amendment political debate and shows far more client insight than
some of the other recent targets of prosecutorial zeal (Larry Flynt and
the exhibitors of Robert Mapplethorpe's photos come to mind).
The reader is taken on a strange walk through the looking glass of the
Reagan 1980s, where talk show hosts and televangelists help chart litigation
strategy for a US attorney general. It is a strange world of collusion
and odd law enforcement priorities, an ill-conceived and ill-executed
domestic version of Iran-Contra. It is a story in which the bitter irony
of a coterie espousing less government while using government in a ham-fisted
manner is driven home again and again.
It is useful to hear this story from someone like Harvey, someone not
loaded down with the baggage or hysterics of a Flynt. This is an account
from an American businessman's point of view, a believer in the system
up to the day that system decided to crush him. This point of view makes
it possible to see how our nation continues to wrestle with the twin demons
of control and permissiveness.
Because of the context and timeframe, we get to see how these twin demons
create explosive and dangerous pressures in our society, particularly
in the Republican Party. The conflict is between the libertarian impulse
that guides our notions of civil liberties (and the free market) and the
authoritarian impulse with its large appetite for social controls. In
this conflict the "I know obscenity when I see it" crowd has much latitude
for its subjective disgust. Neither Holy Scripture nor the Federalist
Papers are particularly helpful in evaluating sex toys.
Readers can rest assured that this reviewer did not take Harvey at his
word about the benign nature of his product line. I obtained a copy of
the Adam and Eve catalog and reviewed it closely. I can state with confidence
that Harvey offers nothing that cannot be purchased in the adult novelty
stores that are present in almost every city in America. If anything,
the wares are more tasteful, and catalog shopping spares the timid the
sometimes-seedy gauntlet surrounding many of the novelty stores.
The subject lends itself to snickers and graffiti, but the principles
here are valued ones of free expression. If only defenders of political
expression had Harvey's tenacity (and resources). We would be a lot closer
to that dream of a pluralistic society than we are today.
Dennis Boyer,
West Virginia 1978, government relations counsel to AFSCME, Madison,
collects and writes regional folktales, and one day hopes to pen an earthly
collection of adult bedtime stories.
The
Lost Children of Wilder
By Nina Bernstein (New York, NY: Pantheon Books, 2001). 479
pgs. $27.50. Order, (212) 751-2600.
Reviewed by JoAnn M. Hornak
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Seven years in the making, this book spans two and a half decades, from
the filing of the Wilder lawsuit in 1973 to its ultimate dissolution in
1999. It follows the lives of two children trapped in the New York City
foster care system, Shirley Wilder and the son she had at 14 whom she
didn't meet again until she was 33.
During the 1970s children's shelters resembled Dark Ages prisons and
private agencies dictated their own agendas, reserving treatment, not
for those children most in need, but for those children, primarily white,
fitting the agencies' religious criteria. The system routinely ignored
children's best interests; "permanency" was mere lip service. In 1974,
for example, out of 2,123 children in foster care in New York City, only
10 were adopted.
In exhaustive journalistic detail, Nina Bernstein puts a human face on
a bureaucratic system in which children were shuffled repeatedly from
one placement to the next, frequently with devastating psychological consequences.
Often, perfectly normal children, Shirley Wilder and her son Lamont included,
were placed in psychiatric institutions or state reformatories for lack
of an available placement.
The Wilder suit filed against New York City and the private religious
agencies it contracted with was premised on a First Amendment violation
of the establishment clause, but sought equal treatment for all children,
regardless of race or religious affiliation. The suit became a political
battlefield that resulted in a settlement that was to place foster children
on a first come-first served basis, but actually was never implemented.
The book ends on a sad note, with Shirley Wilder's death at 39 of AIDS.
The Wilder decree, dissolved into another lawsuit, didn't change the system.
Rather, the system buckled under new social pressures such as crack cocaine,
AIDS, and homelessness that tripled the number of foster children by the
1990s.
JoAnn M. Hornak,
U.W. 1987, is a Milwaukee County assistant district attorney, currently
handling Chapter 48 Children in Need of Protection or Services (CHIPS)
cases.
Brush
with the Law
By Robert Byrnes & Jaime Marquetry (Los Angeles, CA: Renaissance
Media Inc., 2001). 304 pgs. $24.95. Order, (800) 266-2834.
Reviewed by Jon G. Furlow
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Brush with the Law: The Turbulent True Story of Law School Today at Stanford
and Harvard chronicles the authors' law school adventures at Harvard
and Stanford. I use the word "adventures" deliberately because the authors
revel in the fact that they found a way to game the law school system and
get good grades and jobs without attending many classes. All the while,
the authors tell us, they pursued a life of pleasure: Mr. Marquart devoted
his law school career to gambling; Mr. Byrnes turned his attention to drinking
and drugs.
Why the authors seem proud of their achievement is both fuzzy and remarkable.
But the book is entertaining in a voyeuristic way; it is, in many ways,
the ultimate beach book. We are introduced to familiar law student stereotypes:
the students who delight in the failures of others, figuring that it will
only increase their own chances of success; the obsessive students who,
having been embarrassed once in class, brief every case, attend every
class, and become rabid class participants; and the 24-7 students who
completely immerse themselves in law school and don't come up for air
until graduation. The authors point, somewhat predictably, to Scott Turow's
prominent book, One L, as their reference point upon entering law school.
And their law school anecdotes echo the more familiar stories from One
L.
Once beyond the quirky stories of conventional law student life, the
authors depart dramatically from the One L story line. Law school is a
joke to them and their account quickly degrades into vivid descriptions
of sex, drugs, and gambling. Mr. Marquart tells of his transition from
his small-Texas-town roots to his acceptance to Harvard Law and ultimate
decision to spend his law school career gambling in casinos. Mr. Byrnes
was a bicycle messenger, turned political speechwriter for the Massachusetts
governor, who went off to Stanford Law. Once there, he revels in his habits
of ditching class in favor of drinking binges, pot smoking, and regular
travels to San Francisco to smoke crack. He even fits in a Halloween orgy.
This purports to be nonfiction, but can we really believe it? Has it
been embellished? Do we care? Did the authors report this on the character
and fitness section of their bar applications? The authors' point, it
seems, is that law school is not that challenging after all. Whether or
not that's true, the more salient point of Brush with the Law is that
good taste is no impediment to writing books.
Jon Furlow, Minnesota
1986, is a litigation partner at Michael Best & Friedrich LLP, Madison.
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. $49. Order,
(800) 248-3248.
Reviewed by Amy M. Bentley
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Federal Privacy Rules for Financial Institutions truly is not light
bedtime reading (though it may help you get to sleep), and few attorneys
will find it useful or necessary to read the entire book as I did for this
review. Rather, it is a good reference book for the text of, and information
about, the regulations several federal agencies adopted to implement privacy
provisions of the Gramm Leach Bliley Act.
The book contains the text of the Act and implementing rules, substantial
commentary on the requirements imposed by this law, and the history behind
their adoption. For outside counsel advising many different types of financial
institutions, it is helpful to have all of the rules in one place and
the commentary is generally insightful. To those new to this law, the
commentary sheds light on concepts such as the distinction made between
"consumer" and "customer," the scope of the rules adopted by the different
regulatory agencies, and the intersection of this law and the Fair Credit
Reporting Act.
The resource would be more helpful if it included descriptions of the
differences between the regulations adopted by different agencies, even
though the differences may be slight.
Amy M. Bentley,
U.W. 1998, is an associate at Whyte Hirschboeck Dudek, Milwaukee,
concentrating in consumer finance 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.
- Beyond Our Control? Confronting the Limits of Our Legal System
in the Age of Cyberspace, by Stuart Biegel (Cambridge,
MA: The MIT Press, 2001). 468 pgs.
-
The Criminal Lawyer's Guide to Immigration Law: Questions
and Answers, by Robert James McWhirter (Chicago, IL:
ABA Criminal Justice Section, 2001). 377 pgs.
- Collaborative Law: Achieving Effective Resolution in Divorce
without Litigation, by Pauline H. Tesler (Chicago, IL:
ABA Family Law Section, 2001). 250 pgs. Diskette.
- Flying Solo: A Survival Guide for the Solo Lawyer, 3rd
ed., edited by Jeffrey R. Simmons (Chicago, IL: ABA Law Practice
Management Section, 2001). 832 pgs.
-
Habeas Codfish: Reflections on Food and the Law, by
Barry M. Levenson (Madison, WI: University of Wisconsin Press,
2001). 263 pgs.
-
Krueger on United States Passport Law, 2nd ed. 2000., 3rd
supp. 2001, by Stephen Krueger (Hong Kong: Crossbow Corp.,
2001). 400 pgs.
-
To Look Like America: Dismantling Barriers for Women and
Minorities in Government, by Katherine C. Naff (Boulder,
CO: Westview Press, 2001). 284 pgs.
-
Making Sense of the ASFA Regulations: A Roadmap for Effective
Implementation, edited by Diane Boyd Rauber (Washington,
DC: ABA Center on Children and the Law, 2001). 279 pgs.
-
Making Work Work for You, by Gary A. Hengstler (Chicago,
IL: ABA Career Resource Center, 2001). 78 pgs.
-
Nursing Home Litigation: Pretrial Practice and Trials, edited
by Ruben J. Krisztal (Tucson, AZ: Lawyers & Judges Publishing
Co. Inc., 2001). 320 pgs.
- Occupational Safety and Health Law Handbook, by Lesa
L. Byrum, et al. (Rockville, MD: ABS Consulting, Government Institutes,
2001). 350 pgs.
- Stack and Sway: The New Science of Jury Consulting, by
Neil J. Kressel & Dorit F. Kressel (Boulder, CO: Westview Press,
2001). 302 pgs.
- The Ten Biggest Legal Mistakes Women Can Avoid, by
Marilyn Barrett (Sterling, VA: Capital Books Inc., 2000). 268
pgs.
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