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    Wisconsin Lawyer
    August 01, 1998

    Wisconsin Lawyer August 1998: Book Reviews

     


    Vol. 71, No. 8, August 1998

    Book Reviews


    This Month's Featured Selections

    We the Jury:
    The Impact of Jurors
    on Our Basic Freedoms

    By Godfrey D. Lehman (Amherst, NY: Prometheus Books, 1997).
    369 pgs. Hard.
    $26.95.

    Reviewed by Nathaniel Cade Jr.

    We the Jury contains 12 chapters that convey an unknown history as to the formation and implementation of the jury as we know it and how juries have been at the forefront of protecting human liberty. Lehman uses 12 chapters to symbolize the 12 jurors that comprise the typical jury.

    In the forward, Lehman bemoans and compares the O.J. Simpson juries and their decisions. The rest of his book heads downhill because of Lehman's apparent one-sided blessing of the jury system. For example, his opening chapter deals with what he calls the "Father of Our Country." He labels Edward Bushell the "Father of Our Country" because Bushell allegedly stood up to the lords of England when he was selected to serve on a criminal jury. One of the defendants in the criminal trial was William Penn (for whom Pennsylvania was named and one of this country's most famous Colonists). Penn was arrested with William Mead for practicing and preaching their Quaker religion.

    Lehman relies upon bits and pieces of historical information to weave a tale of how Bushell saved Penn's life by refusing to allow the jury to convict Penn or Mead. Although it reads wonderfully, the problem with this style is that much of Lehman's weaving is his own interpretation of what may have occurred during the trial, because only some of the words spoken at Penn's trial were transcribed by the court scriveners.

    In other chapters, Lehman addresses freedom of the press, rights of minorities, and women's suffrage. The book fails to relate many of the problems a jury can create, such as higher death sentence rates for minorities convicted of capital crimes.

    I found this to be an intriguing and easy read. Readers who fancy themselves legal history buffs will find pleasure in Lehman's work. Just keep in mind that many of the more intriguing and interesting points Lehman relates are fictional.

    Nathaniel Cade Jr., Michigan 1996, is an associate at Michael Best & Friedrich LLP, Milwaukee.

    The Complete Employee Handbook
    Policies Manual for Law Firms

    Edited by Lisa Walker-Johnson, Linda M. Thomas, and Susan D. Sjostrom (Newtown Square, PA: Altman Weil Pensa Inc., 1997). Binder.
    $225.
    To order, call (610) 359-9900.

    Reviewed by Theresa L. Schulz

    Publisher Altman Weil Pensa Inc., a consulting firm to the legal profession, succeeds with this book in providing the first comprehensive and legally sufficient resource for law firms to develop or update employee handbook policy manuals. There is sure to be a need for this type of resource, given the growing body of law nationwide in which courts have held that employee handbook policy manuals may alter the presumptive at-will status of an employment relationship.

    The book provides a comprehensive, up-to-date model employee handbook, addressing more than 75 topics specifically tailored to law firm employers. The model handbook section addresses general organization information, employment relationship details, personnel record policies, employee benefit programs, timekeeping and payroll issues, work conditions and hours, leaves of absence, employee conduct and disciplinary action, and other miscellaneous issues. The publishers include software on both CD and 3.5" floppy disks that quickly and easily enable law firms to customize their own employee handbook policy manuals.

    This book also provides approximately 20 employment policy-related forms that can be adapted quickly for use by law firm personnel departments. Sample forms include employment applications, reference release forms, new employee orientation checklists, offer letters, requests for leave of absence forms, employee exit interview forms, and termination notices. These forms also are included in the software, making it quite easy to modify them for a particular firm's needs.

    Law firms nationwide that need to create a careful yet comprehensive employee handbook, but don't have the time to draft one from scratch, need this resource.

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

    The Securities Enforcement Manual:
    Tactics and Strategies

    By Kirkpatrick & Lockhart LLP, Edited by Richard M. Phillips (Chicago, IL: The ABA Business Law Section, 1997).
    533 Pgs.
    $149.

    Reviewed by Terry F. Peppard

    This text was assembled by a team of 15 members of the securities group of the venerable Kirkpatrick & Lockhart LLP. The team was led by Richard M. Phillips, chair of the firm's securities group, and long one of the leading lights of federal securities practice.

    The contributors claim more than 150 years' experience in the esoteric world of securities law enforcement, and it shows in the near-exhaustive treatment of practice tips and tricks given in 12 chapters covering both the domestic and international dimensions of federal and state securities laws and regulations of the United States.

    Considering the topic, the text is remarkably readable. The authors have taken pains to target the uninitiated as well as the seasoned veteran. There are just enough footnotes to reflect a creditable level of scholarship and to focus the reader's further research.

    If there is a glaring omission in this volume, it's the absence of a topical index. The complexity of the subject certainly warrants one, and the reader who seeks only reference to this or that arcane subtopic, such as variations in the scope of the subpoena powers among the SEC, the state securities administrators, and the federal self-regulatory organizations, will quickly note the oversight.

    Also, presumably as a result of competitive considerations, the book is a bit light on tips for creative alternatives to the traditional settlement options preferred by the regulatory community. Mavens of the field likewise will detect a superficial handling of the impact of the National Securities Markets Improvement Act of 1996 on state securities law enforcement powers and related issues of federal-state relations.

    Still, this title is a worthy addition to the library of any lawyer who, even if only occasionally, takes up the defense of a securities law enforcement case.

    Terry Peppard, U.W. 1973, a former chief of enforcement for the Wisconsin Commissioner of Securities, practices in Madison.

    The Gallows in the Grove:
    Civil Society in American Law

    By George W. Liebmann (Westport, CT: Praeger Publishers, 1997).
    264 pgs.
    $59.95.

    Reviewed by Timothy J. McAllister

    Centered around the concept of a purported deviation from the constitutionally established separation of powers and the concurrent dishevelment of American society, George W. Liebmann's The Gallows in the Grove: Civil Society in American Law, covers a great deal of ground. A multitude of issues is discussed with an admittedly conservative slant.

    The text's core is chapter three, "Delegation to Private Parties in American Constitutional Law," which was partially published in 1965 in the Indiana Law Journal (including 340 of the total of 611 chapter ending references). Liebmann expands the concept of the abdication of legislative duties from the electorate to the functional interpretation of the judiciary in implementing law, to further cover legislative and judicial abdication of their duties to private sector entities who create "law" through rules and standards that are being upheld.

    Liebmann's arguments concerning the distortion of legislation through judicial review are sound, as is his questioning of the constitutional validity of the private sector "law"-making through rules enactment and enforcement by the public sector (as long as the "law" created by delegated private authorities remains within the bounds of the judicially approved frame).

    To restore balance, Liebmann recommends a return to "judicial modesty" and restraint. Reducing the availability of federally funded legal services is suggested as a means to combat judicial oversight, particularly in the area of administrative law for which Liebmann proposes "appropriately trained laymen, including citizen volunteers," perform the tasks previously performed by lawyers. Liebmann's chapter on "Lawyers and the Poor," which has no specific chapter references, can be summed up by the statement that economically disadvantaged people don't need lawyers - they need to form "passive" political organizations.

    Liebmann advocates having citizen volunteers supervise convicted offenders and paroling offenders to the custody of their "workplace organizations" as a way to reduce the number of parole agents and get the community involved in law enforcement. He also advocates combating the "evils that flow from widespread gun ownership" through the use of "milder measures, which would deny the right to ownership to those not subjecting themselves to a training course, with periodic refreshments, in firearm safety, in self-defense (including alternatives to firearm use), and in first aid emergency response." As a professional working in the field of corrections, I fail to envision crime rates plummeting due to the adoption of these measures.

    Communitarian ideology resounds in Liebmann's advocation of reducing class action suits used for the expansion of rights, and in the emphasis on volunteerism. The repeal of zoning restrictions to form "[t]he woonerf, or residential street-government regime, ... a Dutch innovation of the 1970s" is pushed as a way to restore community values. The woonerf consists of private streets and expanded legal property rights of the owners, but utopian thoughts aside, sounds like a self-serving gated community for the established wealthy.

    Completely lacking in graphics and making the reader wonder if Preager Publishers uses a spell-check or proofreader, The Gallows in the Grove is an unbalanced book in which some chapters are obsessively referenced while the majority have few to no specific chapter references to document or substantiate statements made. There is plenty of food for thought and cocktail party conversation could rage in debate over the ideas and opinions expounded. Serious national debate or the adoption of the advocated reforms is doubtful, as it should be.

    Timothy J. McAllister is employed by the Wisconsin Department of Corrections at the Wisconsin Resource Center.

    Solving the Puzzle of Interest Group Litigation

    By Andrew Jay Koshner (Westport, CT: Greenwood Publishing Group, 1998).
    144 pgs.
    $52.95.

    Reviewed by Michael P. Matthews

    From its title, one may expect this book to be a treatise or handbook on difficult issues facing interest group litigators, such as thorny problems of standing or selecting proper plaintiffs and issues to sponsor. Instead, the "puzzle" is an academic study of why interest groups' filings of amicus curiae briefs with the U.S. Supreme Court have increased over the past 50 years.

    The author notes that others have proposed and extensively researched possible answers to this question, but he contends that his book "brings everything together" and examines the aggregate phenomenon. However, one may question the wisdom of trying to describe and assess the 16 or so previously proposed theories in just 105 pages (not including appendices).

    The author's summary of others' theses, presented in about seven pages, is the book's most valuable part for those who are intellectually interested in the question presented (the book is of no use to practitioners, even those who represent interest groups, as it completely lacks practical information). The rest of the book is the author's assessment of each theory, in which he applies only his own opinion and the results of his deficient survey of interest groups. For example, he argues that liberalized standing rules have not caused the increase in interest group litigation because only 13 percent of groups surveyed said that standing rules affected their decision to litigate. He then reveals that "the 13 percent represents only one group because only eight responded to this question," even though perhaps thousands of interest groups litigate. He argues that his survey is "very compelling evidence," when in fact its minuscule sample size (only 26 groups responded to the survey) renders it worthless.

    The author concludes that his book did not answer the "big question" of the "implications" of the increase in interest group litigation. Or, in other words, who cares?

    Michael P. Matthews, Michigan 1996, Order of the Coif, is a law clerk for Chief Judge J.P. Stadtmueller of the U.S. District Court for the Eastern District of Wisconsin.

    The International Guide to Nonprofit Law

    By Lester M. Salamon (New York, NY: Wiley Publishers, 1997).
    400 pgs.
    $125.

    Reviewed by Richard Berkley

    For academics who have research interests in the international role of nongovernmental nonprofit organizations, Lester Salamon's treatise fills a significant gap in the literature. For the lawyer involved with counseling nonprofit organizations or advising on gifts to nonprofits, the book's utility has a different basis.

    Based on the Johns Hopkins Comparative Nonprofit Sector Project's legal field guides, this book examines the basic law of nonprofit organizations in 22 countries. Consequently, it provides a point of departure from which lawyers can begin detailed studies of the relevant national legal systems. It also serves lawyers by providing a sample of how legal institutions - from developed, developing, and former Soviet-bloc countries - treat nonprofit organizations.

    The nonprofit sector, long an important facet of life in the United States, has been growing in international importance because of increased funding by and interaction with transnational corporations, governments, and the United Nations. In addition, national nonprofit organizations have been increasingly involved in seeking multinational or regional solutions to common problems or national policy conflicts. Thus, it behooves lawyers to be conversant with the laws surrounding nonprofit activity in a variety of countries. Despite the growing importance of the nonprofit sector, however, little systematic research had been done in this area. Thus, a lawyer or an academic would have an onerous task finding and analyzing all the relevant principles, statutes, and caselaw necessary to provide knowledgeable counsel to a client.

    Salamon organizes the book's analysis around 10 central issues, including: the legal context within which the organizations operate, organizational eligibility for nonprofit status, forms of governance, tax treatment, personal benefit restrictions, obligations to the public, allowable business activity, limitations on funding, limitations on political activity, and impending legal developments. Then, each country-oriented chapter analyzes the relevant national legislation in the context of these questions. For example, charitable contributions by American corporations are subject to IRC § 170(c)(2)(A), which creates the "domestic organization restriction" (DOR) on deductibility. Consequently, unless the donee entity was created or organized under U.S. laws, contributions generally are not deductible. However, as Salamon's book notes in its analysis of Canadian, Israeli, and Mexican charity law (chapters 6, 13 and 16, respectively), U.S. tax treaties with these countries alter the application of the DOR in some circumstances.

    The book ends with three useful sections for practitioners and academics. First, Salamon reprints some extracts from the World Bank's "Handbook on Good Practices for Laws Relating to NGOs," which is a resource for drafting and debating new nonprofit legislation around the world. Second, draft "guidelines" for government treatment of the nonprofit sector and for the internal operations of nonprofit organizations is included. The guidelines were assembled by a convocation of experts in Johns Hopkins' International Fellows in Philanthropy Program who met at a series of international conferences in the early 1990s. Although they are not a set of model rules, and the Fellows are not analogous to the Commissioners drafting model uniform state laws, the "guidelines" are a first effort of its sort well worth keeping under observation. Third, Salamon's wide-ranging, current, and multilingual bibliography is a useful tool for the researcher of international nonprofit law.

    Richard Berkley, U.W. 1997, also has an M.A. in public history from NYU. He is writing his doctoral dissertation on the Rockefeller Foundation's role in shaping U.S. hemispheric relations between WWI and WWII.


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