Book Reviews
This Month's Featured Selections
Wild Justice: The People of Geronimo vs.
The United States
By Michael Lieder and Jake Page (New York, NY: Random House,
1997). 318 pgs. Retail: $25.95. Amazon.
Reviewed by Laura Smythe
The Indian Claims Commission, established in 1946, was the
only judicial body created to award money to Native Americans to redress
some of the wrongs done to them during European-immigrant expansion in
the United States. The Congressional act that created the commission
instructed it to consider not only established legal principles but also
a standard of "fair and honorable dealings."
Wild Justice: The People of Geronimo vs. The United States
provides an excellent analysis of the Indian Claims Commission and its
abilities and failures to address tribal claims. Written by attorney
Michael Lieder and Jake Page, a professional writer, the authors
skillfully blend their viewpoints. I was impressed repeatedly at the
ease with which complex legal theories were explained and applied. The
authors intended this book to be accessible to a wide audience, and it
certainly is.
Although the Indian Claims Commission Act was intended to give tribes
an opportunity to air their grievances and to seek compensation for the
injustices they suffered as our nation expanded, Lieder and Page argue
that the Anglo judicial system was ill-equipped to meet the tribes'
requests. The authors begin the book by exploring the travails of one
particular tribe, the Chiricahua Apache, and then weave the Chiricahua
story throughout the book as the tribe is imprisoned, placed on a
reservation, and eventually file varied claims with the commission.
Lieder and Page make three primary arguments. First, they argue that
the judicial system was incapable of handling Indian claims. The
judicial system, which relies on legal precedent, did not allow for
novel claims made under the "fair and honorable dealings" clause of the
Indian Claims Commission Act. Furthermore, the commission (and the Court
of Claims to which appeals were made) was unable to make sense of claims
that tribal groups had suffered the destruction of their identity and
culture. There is no standard definition of culture nor is it clear from
established legal precedent that a tribe has a right to a culture, the
destruction of which should be compensated. The commission was also
ill-prepared to address tribal land claims. The commissioners treated
the tribes as individual landowners. However, the tribes did not view
land as property, so monetary compensation for lost land was rarely
viewed as adequate or meaningful.
The second argument is that evidentiary problems proved an
insurmountable stumbling block to meeting the tribes' needs through a
judiciary forum. The time lapse between the alleged wrongs and the
trials and the nature of the evidence were problematic. For example, the
land claims required the tribes to prove the geographical boundaries of
the land they lost. There often were no written records of such
boundaries, and oral tradition was considered hearsay. Tribes who
brought accounting and mismanagement claims against the federal
government as trustee had to rely upon government records, which
required years of painstaking tabulations of expenditures made by the
government on behalf of any particular tribe. Given the time lapse
between the offense and the trial, records frequently were spotty or
voluminous, or both.
The third issue is the political problem of the federal government's
inherently conflicted role as trustee/defendant and representative of
millions of taxpayers versus the approximately one million Native
Americans seeking redress for damages done to their ancestors. The
authors argue that the governments' lawyers and the legal system found
it impossible to ignore the potential impact of granting large damages.
The result, according to the authors, was inadequate damage awards that
amounted to approximately $1,000 per Native American. Furthermore,
because the federal government is both trustee for the tribes and the
defendant in claims made by the tribes, the granted awards frequently
were doled out under parameters set by the defendant.
The authors acknowledge the marvelous intent behind the Indian Claims
Commission Act and believe that, for a limited number of fairly
successful tribes, it was a useful forum. However, they make a
convincing argument that the Indian Claims Commission was ill-prepared
to do justice to the claims that the majority of tribes sought to have
addressed.
Representing Children in Child Protective
Proceedings
By Jean Koh Peters (Charlottesville, VA: Michie Publishing,
1997). 917 pgs. Retail: $85. To order, call (800) 446-3410.
Reviewed by Theresa L.
Schulz
Jean Koh Peters wrote this book to help lawyers and nonlawyer
representatives of children in child protective proceedings deal with
both the practical and ethical dimensions of their representations. She
notes at the outset a paradox in the attorney-child relationship: that
while the attorney's love of children is likely what drew the attorney
to the representation of children, the attorney also quickly realizes
that it is best for the child to end the case and the attorney-child
relationship as promptly as possible. Making this relationship as
short-term as possible can pose difficulties for a relationship that
requires a high degree of communication and trust between the
parties.
The book is divided into two parts: the first defining the child's
world, the lawyer's world, and how they meet; the second providing
step-by-step guidance in working with and representing a child. Peters
provides many practical and useful tips from approaching the child in
the initial meeting to advocating for the child's best interests.
While the book is more than 900 pages, most of it is comprised of
many useful appendices for the practitioner. For example, one appendix
provides an insightful history of family law under the English and
American legal systems. Another appendix contains the primary laws
regarding the representation of children in child protective proceedings
in each of the states, territories, and District of Columbia. The
remaining appendices list helpful publications and resources for those
representing children.
Securities in the Electronic Age: A
Practical Guide to the Law and Regulation
Edited by John F. Olson and Harvey L. Pitt (Little Falls, NJ:
Glasser LegalWorks, 1998). Looseleaf. $129. Amazon.
Reviewed by Douglas O. Smith
According to a recent report, the number of Internet users in the
United States doubled in the last 100 days. Online communication rapidly
is becoming an integral part of how companies transact their business,
including the buying and selling of company stock and the conduct of
shareholder meetings. The lawyers that represent those companies need to
understand how to integrate the Internet into these essential corporate
activities without violating the complex securities laws and regulations
that seek to protect the public interests.
Written by 24 securities practitioners, this handbook, billed as a
"comprehensive reference," is not. Most lawyers will find that it's
hardly an essential tool for helping their corporate clients. A good
secondary legal reference does two things. It provides working lawyers
with a basic understanding of an area of law about which they may have
limited knowledge. It then includes lots of practical tips and insights
on how a lawyer can practice in a particular area without creating more
problems than are solved. Unfortunately, this book accomplishes neither
objective.
If you don't already understand the full gamut of securities law
issues, you'll need to start elsewhere than this book to find that
understanding. Chapters 5, 6, and 7, which cover shareholder and
investor relations issues, are an exception; they provide a good
background explanation of the law and identify potential problem areas
and how to avoid them. Otherwise, each chapter appears to begin in the
middle of the discussion, when just a few pages of introduction could
have made it easier for everyone to understand the existing securities
regulation background upon which electronic communications issues are
being resolved. More importantly, however, the SEC has published limited
interpretive guidance on the use of electronic communication in
securities sales, and few companies have ventured forth to test the
limits of that guidance. After the exposition in Chapter 1 discussing
the SEC releases, most of the other authors rehash old ground or provide
lots of Brave New World predictions that don't help
practitioners much.
If you represent a company that plans to explore the world of
cyberproxies and online shareholder meetings in the very near future,
Chapters 5 through 7 provide you with lots of helpful information that
you'll probably need to do it right.
Warning: The choice of an annual looseleaf supplement,
rather than using CD-ROMs issued quarterly or updates available online,
will make the book dated fairly quickly between supplements. Lawyers who
practice extensively in the securities area may appreciate some of the
commentary and the appendix, which includes all of the available SEC and
NASD guidance and a sample online subscription agreement and prospectus.
Others should check out the SEC homepage and other securities law sites
on the Internet instead.
The Wisconsin State Constitution: A
Reference Guide
By Jack Stark. Westport, CT: Greenwood Publishing Group,
1997. Hard. 296 pgs. Retail: $79.50. Amazon.
Reviewed by David N. Tulbert
Wisconsin has a rich and distinct society and culture. Jack Stark
describes the interaction between the Wisconsin Constitution and the
society and people to whom it applies. This interaction produced a
unique constitution rich in guarantees that does not merely imitate the
federal Bill of Rights but creates separate unparalleled guarantees not
found in the U.S. Constitution.
Stark, assistant chief counsel in the Wisconsin Legislative Reference
Bureau, has performed a great service to the legal community and to
those desiring a better understanding of the Wisconsin Constitution.
Stark describes Wisconsin's reputation for good government and explains
that it was earned as a result of the legislation promulgated by the
Wisconsin Legislature and the leadership shown by the Wisconsin Supreme
Court.
Stark describes the influence of the Progressives (a faction within
the Republican Party) and the Wisconsin Idea (the belief that the
University of Wisconsin should serve the state) on Wisconsin's political
culture. This political culture was influential in creating a unique and
innovative political and legal history.
This work provides more than just the history behind the development
of the constitution. It reviews each section of the Wisconsin
Constitution and provides helpful section-by-section commentary that
explains courts' methods of interpreting the constitution. In the
guide's "General Topics" section, Stark explains the various methods
used since the constitution's inception and elaborates on the three
primary methods of interpretation used by the courts.
The Wisconsin Constitution - A Reference Guide is an
excellent resource providing constitutional history of Wisconsin,
Wisconsin constitutional commentary, a bibliographical essay, table of
cases, and an index. Legal practitioners and constitutional historians
will find this book extremely valuable.
Wisconsin
Lawyer
