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.
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.
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.
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.
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.
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.
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."
Wisconsin
Lawyer
