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    Wisconsin Lawyer
    July 01, 1998

    Wisconsin Lawyer July 1998: Book Reviews

     


    Vol. 71, No. 7, July 1998

    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

    Wild JusticeThe 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.

    Laura Smythe, U.W. 1997, is an attorney in Appleton. She also holds an M.A. in Latin American studies and in political science.


    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.

    Theresa L. Schulz, Minnesota 1993, practices employment and adoption law in Wisconsin and Minnesota from her office in Lake Elmo, Minn.


    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.

    Douglas O. Smith, Marquette 1983, is a principal and shareholder of General Counsel S.C., Brookfield. The firm serves as independent general counsel for small businesses and provides contract legal services to in-house law departments.


    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.

    David N. Tulbert, Washburn 1992, is in-house counsel for American Medical Security Inc., Green Bay, where he practices in health-care law and business transactions. He serves on the Managed Care Committee of the State Bar's Health Law Section.


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