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    Wisconsin Lawyer
    September 01, 1999

    Wisconsin Lawyer September 1999: Book Reviews

    Book Reviews


    This Month's Featured Selections


    Essential Criminology Estate Planner's Guide to Family Business Entities

    By Louis A. Mezzullo
    (Chicago, IL: ABA Real Property,
    Probate and Trust Law Section, 1998).
    214 pgs. $89.95.

    Reviewed by Martin A. Blumenthal

    This guide speaks to the seasoned tax professional and is not meant for the general practitioner. The language is terse and technical with very few illustrative examples. The book provides a good survey of the tax law concerning partnerships and corporations and would be a handy reference for a tax person.

    The goal of estate and tax planning is combining the client's wishes with tax savings where possible. The book treats the area of estate and tax planning that maps out strategies for getting the kids into the family business without also taking in the government as a partner. To reach this goal, one needs to know how to structure the business (type of entity), the tax laws that apply to that entity (partnership, corporation, and limited liability company), the gift and estate tax laws, and a smattering of trusts.

    There are some sample forms for organizing a limited partnership and for a limited liability company. These forms illustrate many of the choices that partners or members have in organizing the operating structure of the business entity.

    This guide probably would sell better among some general practitioners if the language did not sound like a treasury regulation and major concepts were illustrated by examples. Tax issues are difficult to understand in the abstract, which is why a general practitioner would not find this work useful.

    Martin A. Blumenthal, IIT Chicago-Kent 1981, is a CPA and practicing attorney in Illinois and Wisconsin.

    Bad Software:
    What to Do When Software Fails

    By Cem Kaner & David Pels
    (New York, NY: John Wiley & Sons, 1998).
    365 pgs. $23.99.

    Reviewed by Richard Berkley

    This book probably should go on every computer user's bookshelf, and particularly on lawyers' bookshelves. Like the best of Nolo Press books, Bad Software uses a consumer-oriented approach to demystifying an area in which one's rights and remedies are not immediately clear. Better yet, in addition to making the book accessible to nonlawyers, there are sufficient citations to precedent - and a specialized, linked Web site - for lawyers to use this book as a professional reference.

    The authors designed the book to be a "readily accessible problem-solving tool." The first chapter instructs the reader how to decide whether there is a right to a refund, and how to get one. It also briefly discusses the Uniform Commercial Code (UCC) rejection rules, and offers tips on what order to read the chapters if one only wishes to quickly solve a specific problem.

    The book has two general categories of chapters: 1) overview chapters that provide insight into one's situation and into choosing one problem-solving approach rather than another; and 2) self-help chapters that render valuable advice on substantive rights and the proper procedure to gain the desired remedy. Chapter 2, for example, explains briefly why businesses release bug-plagued software, and why customer help lines are often of poor quality. Chapter 3, in contrast, gives an easy-to-follow 10-step process to make that first call to the software publisher requesting them to make you whole.

    Chapters 1-7 provide the means and rationale for why and how one would attempt to solve problems with a software publisher without the assistance of counsel. Chapters 8-10 provide an overview of a paradigmatic lawsuit. These chapters provide information helpful in determining how one might decide between hiring counsel or proceeding in a small claims venue.

    Bad Software concludes with a well-reasoned discussion of the proposed Article 2B of the UCC, and, in the authors' opinion, why it is bad for consumers and small business owners such as sole practitioners or smaller partnerships. Since this section is extensively footnoted and followed by several relevant references, it provides a foundation upon which readers can form their own opinions about UCC 2B.

    Lawyers should read Bad Software if only for its advice on avoiding purchasing poor quality software and how to gain a better bargaining position from the moment of purchase. The book gains value with its plain-English discussion of the Magnuson-Moss Act's effect on software warranties, the 7th Circuit's ProCD decision on "shrink-wrap" and "click-wrap" licenses, and its easy-to-follow discussion of warranty disclaimers and limitation of remedies.

    Richard Berkley, U.W. 1997, is an attorney with the NYC Division of Information Technology & Telecommunication in Brooklyn, N.Y., practicing in technology, telecommunications, and intellectual property law. He is licensed to practice in New Jersey, New York, and Wisconsin.

    Employment Litigation Handbook

    Edited by John W. Green & John W. Robinson IV
    (Chicago, IL: ABA Litigation Section, 1998).
    345 pgs. $89. To order, (800) 285-2221.

    Reviewed by Kristine Nelson Fuge

    The 1990s have brought a tremendous change in employment law through both judicial and legislative regulation of the employment relationship. Federal initiatives such as the Americans with Disabilities Act and Family Medical Leave Act and the rise in employment-related tort claims such as defamation, negligent retention, and infliction of emotional distress have forced employers and employees to increase their knowledge of the employment relationship. The 1998 U.S. Supreme Court decisions in Faragher v. City of Boca Raton, Burlington Industries Inc. v. Ellereth and Oncale v. Sundowner Off Shore Services provided further evidence of the continued growth and importance of employment litigation in this country.

    The Employment Litigation Handbook is a compilation of academic expertise and practical advice from attorneys with diverse perspectives. The editors have made a special effort to include both employee and management viewpoints to provide balance. Contributors include in-house counsel, mediators, and attorneys in private practice from across the nation.

    The book provides a topical format, each chapter discussing different stages and considerations involved in the employment litigation process. Sample materials, included in the appendices of most chapters, are informative and useful. Throughout the text, relevant cites to the applicable statute, rule, case, or code are included for further reference.

    The book's first section discusses considerations in commencing the lawsuit, such as damages, complaint drafting, venue selection, and case evaluation. Practical tips on responding to the lawsuit follow. After the suit has been commenced, various pretrial considerations are examined, including discovery techniques and the use of experts. Discovery is approached from both an employee and employer standpoint, offering a simplified list of major information topics to be sought by plaintiff's attorneys along with techniques for employers to avoid inconsistencies in responding to discovery.

    For practitioners unfamiliar with basic trial theories of employment cases, the editors have included a chapter offering advice on how to successfully explain the case to the fact-finder, tips on the proper selection of witnesses and exhibits, and specific preparation techniques for trial. The book also addresses ethical issues and provides a framework to analyze potential conflict of interest situations. The editors also have included a section on arbitration and mediation of employment disputes that contains thoughtful advice on deciding when or if to engage in alternative dispute resolution.

    Whether a seasoned or new employment law practitioner, the Employment Litigation Handbook is an inexpensive and valuable resource for attorneys.

    Kristine Nelson Fuge, Hamline 1996, is an associate with Hebert, Welch & Humphreys P.A., Forest Lake, Minn. She practices primarily in civil litigation, including employment law, in Minnesota and Wisconsin.

    Politics of Law The Politics of Law

    Edited by David Kairys
    (Boulder, CO: Westview Press, 1998).
    Paper. 725 pgs. $16.

    Reviewed by Edward S. Marion

    The title says it all. Any "the politics of" book is an attempt to expose some nominally pure endeavor as a less-wholesome political one. To brand something as political is to debase it.

    Get ready for this bombshell: The political process does not end with the enactment of legislation; lawyers intentionally appeal to the political and other perceived value systems of judges, and judges intentionally decide cases based upon those values. How shocking!

    Every intellectually honest lawyer and judge knows that the law provides: "a wide and conflicting variety of stylized rationalizations from which courts can choose. Social and political judgments about the substance, parties, and context of a case, as well as about a range of institutional concerns, guide such choices, even when they are not the explicit or conscious basis of decision."

    Of course, the public face of the legal profession is that the law is above politics; judges are fungible, applying consecrated objective principles to the facts. You know, "Judges don't make the law, they just apply it." Therefore, all the public is supposed to care about when considering whom to vote for as judge is identifying the intelligent, honest, and hardworking person. A judge's personal views on the issues are irrelevant.

    In fact, any good lawyer tries to appeal to a judge's personal beliefs. The skill comes in finding the rule that fits the intended result and pushing the right buttons without being obvious. And, our "best" judges know how to make their personal judgments sound inevitable by citing the "correct" authorities.

    Having accepted the reality of the legal process, this book's contributors might have been expected to bemoan the sorry reality of the legal world and call for a return to the days - were there such days? - of honest and pure adjudication. But they don't. They applaud the way of the world and advocate using the revealed legal system to further their hysterically anachronistic left-wing agenda.

    According to the authors, the only things wrong with the legal system are Republicans and conservatives. The law exists "to take up the cause of the rich." Law schools train "for willing service in the hierarchies of the corporate welfare state." The struggle is to "develop new entitlements that redistribute income and power, and to break down the false dichotomies between wage work and welfare" and to develop an "international system of government."

    If you want a nostalgic trip down Marxist memory lane - assuming you're not a recent law school graduate and, therefore, already mired in the nonsensical rhetoric of the Left - this beast of a book is for you. If you want to learn something useful about the law, read A Civil Action.

    Edward S. Marion, U.W. 1974, is general counsel at the Wisconsin Public Service Commission. He is a former Dane County circuit court judge and chief of staff to Gov. Thompson.

    Sentencing Digest

    (Williamsburg, VA: National Center
    for State Courts, 1998).
    38 pgs. $5. To order, (888) 228-6272.

    Reviewed by Thomas G. Wilmouth

    Presumably, a criminal defense practitioner would be excited to read this report developed by the National Association of Sentencing Commissions (NASC), the Conference of State Court Administrators (COSCA), and the National Center for State Courts (NCSC), to gain insight into this most important phase of the criminal justice system. The report is highly technical such that it is difficult to comprehend and merely raises issues rather than provides answers. The reader must strain through the brief report to gain any meaningful information.

    Some value, however, is found in the history of sentencing included in the report. Sentencing in the 1960s was based upon basic judicial discretion, in which courts imposed "indeterminate" sentences, and the rationale was to impose a sentence that was just for the individual defendant. The 1960s coincided with a period of optimism about rehabilitation; treatment displaced punishment as the official role of penal institutions. Sentencing reforms since the 1970s, organized around the principle of "just desserts," have sought to reduce judicial discretion. Many state parole boards have been eliminated or have had their discretionary release authority substantially reduced and the politically popular mandatory minimum sentences have been enacted, together with habitual offender and "three-strikes" provisions.

    Minnesota enacted the first state sentencing guidelines system in 1980 and several states have since followed. No state, however, has gone the route of the U.S. Sentencing Commission and developed a highly detailed and mechanical set of guidelines without a clear rationale for use by the federal courts. The report asserts, without any support for this view, that observers today are stressing more the need for maintaining judicial discretion. The report reminds the reader that sentencing reform has not curtailed and has likely increased the prosecutor's general discretion.

    The report contains a brief section on truth-in-sentencing, which will be effective in Wisconsin on Dec. 31, 1999. Labeled "the 1990s reform," it completely turns away from rehabilitation and treatment, as the defendant actually serves an amount of time that is closely aligned with the court's original sentence. The report contends that this law will allow judges to creatively circumvent statutory provisions in order to consider adequately the full array of offender characteristics. The report also notes that the enactment allows a state to be eligible for a share of $8 billion in federal funding through the year 2000. The norm of the law for most states seems to be 85 percent service of the imposed sentence.

    The report fails to discuss adequately the costs involved in this law, other than to note that intermediate sanctions for nonviolent offenders, which also can be built into a sentencing guideline scheme, will make prison beds more available. The report also fails to mention the difficulties this law will cause jail administrators.

    On the issue of sentencing disparity, the report notes that despite the traditional goals and considerations of sentencing, sentencing still comes down to the court's moral judgment. Evidence of racial disparity in sentencing may reflect a failure to rigorously consider the full range of variables, legal and nonlegal, or the disproportionate participation in crime among various races. Ongoing adjustment of sentencing guidelines is suggested to decrease perceived disparity.

    Prison populations have increased in all of the states studied, but the rate of new prison commitments has been reduced in some states and maintained in others. The report inadequately concludes that it is unknown if sentencing guidelines have affected those trends.

    For a relatively experienced criminal law practitioner, this report was very hard to follow and it is not recommended reading.

    Thomas G. Wilmouth, Notre Dame 1987, is a partner in Brennan, Ramirez, Wilmouth & Sesini L.L.P., Milwaukee. He practices criminal defense in the state and federal courts of Wisconsin.

    Wisconsin Lawyer


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