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Free
Expression in America: A Documentary History
 Edited
by Sheila Suess Kennedy (Westport, CT: Greenwood Press, 1999).
368 pgs. $49.95.
Reviewed by John A. Neuenschwander
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The issue of free expression in America is everywhere. One can scarcely
pick up a newspaper or catch a news program on television without
encountering someone's claim that his or her right to free expression
has been compromised or suppressed. First Amendment claims have become
both a sword and/or shield in today's America.
For those who would
like to understand how the issue of free expression became so omnipresent,
this slim volume is a good place to start. The book traces the evolution
of the First Amendment from its colonial roots to the present day
by presenting carefully chosen excerpts from court cases, statutes,
and essays that elucidate this long journey.
Sheila Suess Kennedy,
the editor, is an assistant professor of law and public policy at
Indiana University. To her credit, she has carefully sifted through
the vast array of sources on the issue of free expression in America
and come up with a very balanced collection. Rather than merely relying
on major U.S. Supreme Court cases, as so many editors have done, Kennedy
includes key state court cases such as Wisconsin v. Mitchell (1993),
as well as timely essays, including one on the censorship of films
in 1915 from Nation and Hugh Hefner's "The Playboy Philosophy," which
he espoused when he began his venture in 1963. Kennedy also brings
the volume right up to the present by including materials on the issue
of free expression in cyberspace. Each selection is preceded by an
editor's introduction to provide the context and reasons for inclusion.
For readers who like to rummage around in the sources to try and understand
an issue, this would be an excellent choice. Given the sound organization
and major emphasis on free expression in the 20th century, one does
not have to read the book from cover to cover, but can focus on a
particular issue or incident that is of relevance and read the appropriate
sources.
John A. Neuenschwander,
IIT Chicago-Kent 1983, is the municipal judge for the city of Kenosha.
He also is a history professor at Carthage College, teaching American
history..
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Assigning
Retirement Benefits in Divorce, 2d Edition
By Gale S. Finley (Chicago, IL: ABA Family Law Section,
1999). 250 pgs. $89.95.
Reviewed by Martin A. Blumenthal
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This book is a "must have" for every family law or general practitioner
who handles divorces. The author speaks to her colleagues in a conversational
and humorous style about the wonderful world of QDROs (Qualified Domestic
Relations Orders). She assumes no prior knowledge of the reader of
what a QDRO is. She summarizes the different types of retirement plans
and when a plan is subject to the need for QDRO. The book explains
the statutory authorities (ERISA and the Internal Revenue Code) and
how they interact to require a QDRO in the first place.
Basically,
if the retirement plan is subject to ERISA and is qualified for special
tax treatment under the Internal Revenue Code, payments to retirees
cannot be assigned to someone or something else without losing their
tax status. Congress therefore provided in ERISA that a QDRO can get
around this restriction in order to assign benefits to a former spouse.
This may sound easy in theory, but in practice, creating the order
to meet strict drafting guidelines, avoid ambiguity, and get it signed
by the judge as quickly as possible is a difficult path strewn with
traps for the unwary.
A separate chapter describes other types of
retirement plans such as military, state government, federal government,
IRAs, and so on. These plans have their own, sometimes less complicated,
ways of assigning benefits to a former spouse.
The author includes
model QDRO provisions and a well-stocked appendix containing applicable
statutes, sample orders, worksheets, checklists, and authorization
forms.
Martin A. Blumenthal,
IIT Chicago-Kent 1981, of Northfield, Ill., practices law in Illinois
and Wisconsin. He also is a CPA.
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The
EPL Book: The Practical Guide to Employment Practices Liability
and Insurance
By Gary W. Griffin, Andrew Kaplan, Rachel McKinney, Beth
A. Schroeder & Leonard Surdyk (Newport Beach, CA: Griffin Communications,
1999). 608 pgs. $135.
Reviewed by Keith B. Daniels
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The last two decades have seen an explosion of administrative action
and litigation against employers by employees claiming to be victims
of various types of discrimination and harassment prohibited by federal
and state statutes and local ordinances. Responding to the growing
exposures to employment claims that employers face, insurers have
leapt into the field to market Employment Practices Liability Insurance
(EPLI) policies. The first of these policies appeared in the early
1990s. Today, more than 60 insurers offer EPLI products in the U.S.
market.
The increasing frequency of claims and severity of exposure,
the evolution of employment law, and the plethora of competing EPLI
forms (and their lack of uniformity), render the EPL Book a useful
primer for attorneys advising their clients on the purchase of EPLI;
for risk managers, insurance agents and brokers; and insurance underwriting
and claims personnel.
The book essentially is comprised of four
parts. The first section provides an introduction to the history of
employment practices claims and an easily understandable discussion
of the federal laws that form the basis for the majority of employment
claims - Title VII of the Civil Rights Act of 1964, and the Americans
with Disability Act, the Age Discrimination in Employment Act, the
Family Medical Leave Act, and the Equal Pay Act. Other less frequently
asserted federal claims also are explained. State law claims and various
common law tort theories of action also are addressed. Thus, readers
can see the interplay of federal and state law.
The second section
pertains to developing a risk management strategy. Good information
on steps to take to prevent claims, design policies, conduct training,
and handle employment claims is provided.
The third section offers
an explanation of typical EPLI policy terms and standard clauses.
The meaning and effect of "claims made" versus "occurrence" policies
is detailed, as well as such other provisions as the "hammer clause"
that is present in some policies, punitive damages, coverage, and
so on. The book's authors provide valuable suggestions and cautions
for unsophisticated EPLI purchasers.
The fourth section makes the
EPL Book unique from other books and articles that also ably discuss
the topics of the first three sections. In this section, the authors
provide a side-by-side comparison of 30 of the most-often-purchased
EPLI policies at the time this book was written. The comparisons are
presented in easy-to-understand tables that allow for a quick analysis
of which particular EPLI policy form may be best suited for a particular
insured. As the authors make clear, EPLI is not a standard commodity
for which price should be the insured's only consideration.
In conclusion,
few, if any, books are available that compare to The EPL Book in its
entirety. The book's unique strength is the policy comparisons and
discussion of the policy terminology. These matters are not addressed
in most law school classes on employment law in continuing legal education
courses. The book may considerably enlighten most readers.
The book
is excellent; however, a reader cannot take it as gospel. Employment
law continues to evolve, and the U.S. Supreme Court recently decided
several important cases that are not addressed in this edition. Further,
while the policy comparisons cover a large portion of the EPLI market,
there are other EPLI policies on the market (and more become available
every day) which may offer even more favorable coverage terms than
the policies mentioned in this book. Further, several of the policies
addressed have been altered, at least in part, to provide expanded
coverage reflecting the heated competition in the EPLI market. These
comments are not intended as criticism. Rather, they reflect the reality
that in today's world neither the law of employment nor insurance
competitors stand still. However, even given this caution, this is
a book for anyone interested in employment practices liability matters.
Keith B. Daniels,
U.W. 1998, practices in the Chicago, Ill., office of Blatt, Hammesfahr
& Eaton. He represents insurers on matters involving professional
liability insurance, including EPLIs.
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LSAT:
The Official TriplePrep, Vols. 1 & 2
 By
the Law School Admission Council (New York, NY: Random House,
1999). 288 pgs. $15.95 each.
Reviewed by Robert J. Heinrich
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If you have to take the LSAT, it does not get any better than this:
previously administered LSATs. Each volume contains three actual LSATs
plus 30 sample writing exercises. Commercial test preparation courses
may claim to have engineered similar tests, but nothing beats the
real thing.
Only one notable difference exists between the exams
in these books and actual LSATs. An actual LSAT features five sets
of questions (plus the writing exercise), with one merely used to
pretest new test items. These books omit that superfluous section.
Each set of questions contains one of three question types: logical
reasoning (to which two of the four sets are always devoted), reading
comprehension, and analytical reasoning. The introductory materials
describe the question types and suggest useful approaches to attacking
them.
The introductory materials also provide pointers for the
writing exercise. However, your time should be devoted to practicing
the other questions, because the essay does not count towards your
score (and schools notoriously disregard it).
Hardcore test-takers
will delight in filling in the bubbles for their names on the answer
sheets. Also included for every exam is an answer key, along with
a score-conversion chart, allowing the comparison of results across
exams.
The big drawback to these volumes is that the answer keys
do not explain the reasoning behind the answers. However, the LSAC
does offer a book with explanatory answers - LSAT: The Official TriplePrep
Plus with Explanations. So, if you could buy only one LSAC book, I
would recommend that one, sight unseen.
Another potential drawback to these volumes is that they contain
exams from the early 1990s. This is not a big deal. But if age worries
you, you could buy the rather dully-named 10 Actual, Official LSAT
PrepTests, which contains exams of more recent vintage.
Robert J. Heinrich,
Minnesota 1998 cum laude, is a law clerk to the Hon. S. Martin Teel
Jr., in the U.S. Bankruptcy Court for the District of Columbia.
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The
Supremes: Essays on the Current Justices of the U.S. Supreme
Court
By Barbara A. Perry (New York, NY: Peter Lang Publishing,
1999). 176 pgs. $24.95.
Reviewed by Scott C. Amendola
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This book of brief and readable biographical essays is well-suited
to college students learning about the justices for the first time.
Savvy lawyers might be more interested in Bob Woodward's The Brethren,
Max Lerner's Nine Scorpions in a Bottle, or Edward Lazarus's Closed
Chambers for in-depth examinations of the Supreme Court's inner workings.
Biographical
data is interspersed with commentary designed to be thought-provoking.
According to the introduction, while all the justices have elite educational
credentials, the white men had easier career paths. Justices Breyer,
Rehnquist, and Stevens parlayed their Harvard, Stanford, and Northwestern
legal educations into Supreme Court clerkships, but Justices Ginsburg,
O'Connor, and Thomas were unable to secure private law firm employment
upon graduation from Columbia, Stanford, and Yale.
The book is leavened
with interesting trivia. I already knew that Chief Justice Rehnquist
grew up in Shorewood, Wis., and that his robe's gold stripes were
inspired by a Gilbert and Sullivan operetta. I learned that Rehnquist
means "mountain goat" in Swedish, that he enrolled in law school only
after abandoning a Harvard graduate-degree program due to the left-leaning
campus, and that he dated Justice O'Connor during law school.
Some
of the trivia is not trivial. Justice Thomas benefitted from affirmative
action programs at Holy Cross College and Yale Law School, according
to the book, and he felt snubbed by his peers as an "affirmative-action
token." The reader is left to infer how these experiences shaped him
into an ardent affirmative-action opponent.
The book steers clear
of extended forays into substantive law, but sprinkles in enough to
show the Court's ideological shift. Justice Rehnquist was so frequently
a solo dissenter in his early years on the bench that his law clerks
gave him a Lone Ranger doll. By 1997-98, Justice Stevens was the most
prolific solo dissenter and wrote the fewest majority opinions of
any of the justices, despite being the second-most senior (and thus
able to write or assign majority opinions whenever Chief Justice Rehnquist
was in the minority).
Legal formalists believe that law is like
science or math: judges identify the applicable legal rule, apply
it to a case, and logically deduce the outcome. Legal realists recognize
that tough cases present close questions that will be resolved differently
by judges with different life experiences, personalities, and ideologies.
This book should do a fine job of converting undergraduate students
into informed legal realists.
Scott C. Amendola,
U.W. 1998, is a staff attorney for the U.S. Court of Appeals for the
Eighth Circuit.
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A
Theory of the Trial
By Robert P. Burns (Princeton, NJ: Princeton University
Press, 1999). 247 pgs. $23.96.
Reviewed by Peter E. Hans
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Focusing on a discussion of narrative techniques and linguistic processes,
the author of this scholarly text carefully examines the structure
of the American jury trial. Rather than showing the societal importance
of the jury trial by recounting tales of courtroom drama, the author
approaches his subject from the perspective of philosopher and builds
an argument proving its value. He ultimately proves that the trial
is an essential forum in a decent society where "the correct tension
among moral judgment, legal structuring, and public purpose is achieved"
through the performances that occur and the jury's almost unfailing
determination of the proper result.
Make no mistake; this author
allows the reader no intellectual laziness. Most paragraphs and sentences
are quite long (for example, one paragraph contains 11 sentences with
an average length of 29.7 words), and the text includes numerous quotations
and footnote references to other scholarly works.
This book is directed
more to professors accustomed to reading law review treatises than
to practicing trial lawyers. Now and then, though, trial lawyers should
find time to contemplate why cross-examination is essential to the
jury's application of common sense. This well-thought study contains
genuine gems of insight for readers prepared to work hard while mining
for them.
Peter E. Hans,
U.W. 1980, is an attorney with National Specialty Insurance, Madison.
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Trademark
Counterfeiting, Product Piracy, and the Billion Dollar Threat
to the U.S. Economy
By Paul R. Paradise (Westport, CT: Quorum Books, 1999).
288 pgs. $65.
Reviewed by Robert M. Weidenbaum
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The author, in great detail, gives good information about the threat
to the U.S. economy caused by counterfeit goods. The book focuses
on several specific areas of goods where the U.S. has been harmed
and/or threatened by knockoff goods. There are chapters dealing with
everything from clothing and CDs, to automobile and airplane parts,
watches, and prescription drugs.
The book occasionally lags when
Paradise outlines the laws that give tools to those who fight counterfeits.
The author's view of the various federal laws and treaties used to
combat counterfeiting is uninteresting. For most attorneys, especially
those who practice in the field, such information is pretty well-known
already. Readers may not particularly care for the detailed history
of the trade dispute with China over such goods.
The other minor
complaint is with the author's incessant and occasionally confusing
use of acronyms to refer to the many different anti-piracy trade organizations
or industry associations. The author uses more acronyms than a computer
programmer.
However, the book has enjoyable sections relative to
the common law and historical development of intellectual property.
In the area of intellectual property law, the dark ages weren't quite
as dark as one might think. Metalsmiths and even bakers encountered
imitation problems leading to anti-counterfeiting ordinances. For
example, one early law prohibited the sale of adulterated bread. The
author also tells of lawlessness by the U.S. in palming off sheet
music to England in the 1800s. Eventually, the English passed legislation
allowing seizure of sheet music arriving by ship.
The book really
comes to life when Paradise tells the "war stories" of those who do
on-the-street seizures of counterfeit merchandise. Sprinkled throughout
the book are numerous interesting and humorous anecdotes from private
investigators, attorneys, and even U.S. government trade officials.
The author shines in his storytelling.
One of the more interesting
chapters covers the risks of doing seizure actions. There are recollections
of attorneys involved in seizures who were faced with a variety of
threats. The stories are straight out of the University of "Don't-Try-This-at-Home"
Law School.
Another entertaining chapter profiles a particular
private investigator who specializes in gathering information for
attorneys and corporate clients about illegitimate products. Several
stories are told about what the investigator calls "utilizing a suitable
ruse" to obtain information for an ex parte seizure order. It should
be no surprise that these are the book's most entertaining sections.
After all, it isn't the study of case law that makes practicing law
engaging. It is often the cast of unusual characters and their stories
that give each case meaning and interest.
In sum, the basic premise
as stated in the book's title is correct. That is, counterfeiting
and piracy are a billion-dollar threat. Paradise makes a good case
for the argument. Huge consumer demand, new technologies, and a vague
perception of the problem by the public and sometimes law enforcement
officials, are the main reasons for slow solutions.
Robert M. Weidenbaum,
Marquette 1980, practices in Milwaukee, primarily in entertainment,
copyright, licensing, and trademark law.
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To
Review a Book...
The following books are available for review. Please request
the book and writing guidelines from Karlé Lester at the State
Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158, (608)
250-6127, klester@wisbar.org.
Reviewers may keep the book they review. Reviews are published
in the order in which they are received. To purchase any book
reviewed in this column, please visit the State Bar's Web site,
www.wisbar.org/bookstore/
for secure online ordering, or contact the publisher, or ask
your local bookstore to order it for you.
Publications and videos available for review
- Atlas of Crime: Mapping the Criminal Landscape,
edited by Linda S. Turnbull, Elaine Hallisey Hendrix, & Borden
D. Dent (Phoenix, AZ: Oryx Press, 2000). 270 pgs.
- Business Valuation Bluebook: How Entrepreneurs Buy,
Sell and Trade, by Chad Simmons (Prairie Village,
KS: The Corinth Press, 2000). 244 pgs.
- Concise Guide to Successful Employment Practices,
third edition, by J.D. Thorne (Riverwoods, IL: CCH Inc., 2000).
522 pgs.
- Federal Privacy Rules for Financial Institutions,
by K.M. Bianco, J. Hamilton, J.M. Pachkowski, R.A. Roth, A.A.
Turner (Riverwoods, IL: CCH Inc., 2000). 504 pgs.
- Franchising for Dummies, by Dave Thomas &
Michael Seid (Foster City, CA: IDG Books Worldwide Inc., 2000).
378 pgs.
- Law Office Policy & Procedures Manual: Fourth Edition,
edited by Robert C. Wert & Howard I. Hatoff (Chicago,
IL: ABA Law Practice Management Section, 2000). With diskette.
- On the Witness Stand: How to be a Great Witness When
You're Called to Court, by Robert Gordon & Ami Gordon
( Addison, TX: Wilmington Institute Network, 2000). 133 pgs.
- Qualified Retirement Plans for Small Businesses:
A Consultative Guide to Plan Design and Compliance,
by Barry R. Milberg (Riverwoods, IL: CCH Inc., 2000). 248
pgs.
- Run for Your Life, by Andrea Kane (New York,
NY: Pocket Books, 2000). 464 pgs. Fiction.
- Virtual Teams: People Working Across Boundaries with
Technology, by Jessica Lipnack & Jeffrey Stamps (New
York, NY: John Wiley & Sons). 317 pgs.
- The Women's Guide to Legal Issues, by Nancy
L. Jones & Phil Philcox (Los Angeles, CA: Renaissance Books,
2000). 414 pgs.
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