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Vol. 73, No. 3, March 2000 |
Book Reviews
This Month's Featured Selections
Wisconsin Law of Easements
By Jesse S. Ishikawa
(Madison, WI: State Bar CLE Books, 1999).
185 pgs. $45.
Reviewed by Clarence W. Malick
 Order
It Online Now!
Some books that begin with definitions never escape tedium,
but not this one. I was fascinated and read through it in a single
sitting. Of course, the seven chapters of actual text total just
73 pages. Still, I recall being befuddled after studying the
topic back in law school. The subject is not trivial. Mr. Ishikawa
has packaged clarity with interest.
Chapter 1 begins with the author's definition of an easement:
"a nonpossessory interest in land that gives the holder
the right to use land owned by another for a specific use and
without profit." The author then dissects each phrase, contrasts
legal constructs which are not easements, and explicates the
concepts of benefit versus burden and easements appurtenant versus
easements in gross.
Chapter 2 explains different ways that easements come into
being - by deed, implication, necessity, prescription, and
so on. Chapter 3 summarizes the rules of construction. Chapter
4 contains excellent drafting tips and refers to examples in
the appendices. Chapter 5 discusses amendment and termination
of easements. Chapter 6 discusses enforcement. Chapter 7 discusses
how and why to use an owners' association to manage an easement
that serves several owners.
Organized in the manner of CLE books, this six-by-nine inch,
paperbound book contains a six-page table of contents and five-page
index that cite to section numbers. The first appendix reprints
statutes. The other seven appendices are examples of typical
easement documents. They are reproduced on a disk, which installed
easily. The forms opened readily for me in WordPerfect 6.1, but
the screen characters were truncated slightly in Word 97.
Certainly anyone who styles himself or herself a real estate
lawyer should own this book. Those who regularly draft or review
utility easements, condominium declarations, and subdivision
covenants ought to at least read it.
Clarence W. "Buck" Malick,
Harvard 1971, is the executive director of the Minnesota-Wisconsin
Boundary Area Commission. He also practices in estate planning
and real estate in Hudson Township.
Leaving the Bench:
Supreme Court Justices At the End
By David N. Atkinson
(Lawrence, KS: University Press of Kansas, 1999).
248 pgs. $29.95.
Reviewed by Michael B. Brennan
When a justice of the U.S. Supreme Court leaves the bench
can be as controversial as that justice's appointment. Leaving
the Bench: Supreme Court Justices at the End describes when
and how justices left the Court. It also considers the various
reasons why justices left the office, including personal pride,
party loyalty, and pensions. The book describes the physical
and mental impairments of various justices in their last days,
and the consequent impact on the Court's work. It also explores
less obvious reasons for departing, including the threat of impeachment,
ambition for another office, dissatisfaction or weariness with
the work, and family pressure. This thin volume offers glimpses
into the deaths, retirements, and resignations of each of the
justices who have left the Court.
The most interesting portions of Leaving the Bench
are anecdotes about the departure of each justice. Chief Justice
John Marshall died in office. In tolling his death, the Liberty
Bell cracked, dramatically symbolizing the end of his contributions
to our nation. Circuit riding duties actually killed certain
justices. Justice Stephen Field held on through declining mental
health and a game leg to break Chief Justice Marshall's
longevity record on the Court. The other justices asked a mentally
impaired Justice Joseph McKenna to retire. He relented eventually,
but not before the Court had decided one year earlier that no
case would be decided upon his vote. Even august Justice Oliver
Wendell Holmes was, at the age of 90, urged to resign by his
colleagues. He did so, gracefully and at once.
The book offers more details in the departures of more recent
justices. Chief Justice Harlan Fiske Stone appeared healthy when
he and his colleagues ascended the bench in April 1946 to deliver
opinions. When it was his turn to deliver his opinions, though,
there was silence. Justice Hugo Black quickly adjourned the Court,
and he and Justice Stanley Reed carried the Chief Justice off
of the bench. As Stone lay muttering incoherently, the Court
reconvened quickly to issue the opinions that had been decided.
"No one can cast a dead man's vote; the day's
business could be concluded only while Stone still lived."
He died three hours later. Justice Charles Whittaker left the
Court after only five terms due to a nervous breakdown. His struggles
with the issue of reapportionment in Baker v. Carr allegedly
precipitated his final collapse. Justice William O. Douglas's
infamous physical and mental deterioration are detailed. The
rest of the Court, over Justice Byron White's written protest,
would not allow Douglas's vote to decide any important issue
in his last years. Also described are Justice Thurgood Marshall's
final years before retirement, notwithstanding his oft-repeated
refrain of "I have been appointed for a life term, and I
intend to serve it."
The author suggests certain reforms to prevent unseemly departures
from the Court. The Court should be more forthcoming about the
justices' health. Further, it should limit the influence
of law clerks; the author believes their large role in the Court's
work harms the institutional integrity of the Court's decisionmaking
by propping up ill justices. Individual justices also should
be sufficiently self-aware to leave the Court while still in
good health.
The strength of Leaving the Bench is not as a polemical
work, however. Amending the Constitution to mandate a retirement
age for the justices - one reform considered in the book
- would only further politicize the Court as an institution.
The book's strength is its historical detail and wealth
of information about the justices. Ultimately, there is nothing
other justices can do to remove a physically or mentally impaired
colleague who is not amenable to peer group pressure and who
has remained in office too long.
Such is the price to pay for lifetime tenure, which, along
with salary protection, aims to ensure judicial independence,
essential to the maintenance of judicial review, a guarantor
of the continuing integrity of constitutional freedoms.
Michael B. Brennan, Northwestern 1989,
is a Milwaukee County Circuit Court judge.
Emergency Vehicle Accidents,
Prevention & Reconstruction
By Stephen S. Solomon
(Tucson, AZ: Lawyers & Judges Publishing Co., 1999).
304 pgs. $79.
Reviewed by Dennis Verhaagh
In their practices, personal injury lawyers occasionally and
municipal lawyers frequently encounter accidents involving emergency
vehicles. For the lawyer or engineer investigating such accidents,
Emergency Vehicle Accidents is a good source of case law,
technical insight, vehicle specifications, and industry standards.
The author is an optometrist and consultant on issues of visual
perception. From that perspective, he devotes chapters to perception
of emergency signals, both visual and audible, accident reconstruction,
and case examples. Contributing authors devote chapters to the
legalities involved in police chases, the defense of governmental
immunity, and the responsibilities of emergency medical personnel.
The last half of the book contains appendices setting forth federal
specifications for emergency vehicles. The citations on governmental
liability in police chases are worth the book's price.
Given the nature of emergency vehicles, speed and lookout
usually are principal contributing causes of their accidents.
The author provides the usual skid mark charts to estimate speed.
However, photogrammetric reconstruction and video reenactment
are the new tools of the reconstructionist, and the text would
have benefited greatly if a chapter had been devoted to their
uses as visual aids for the jury on the issue of lookout. Nevertheless,
I would recommend the book to any lawyer for discovery purposes
when litigating these cases.
Dennis Verhaagh, Minnesota 1972, practices
patent law in Green Bay. He is an environmental engineer with
the Wisconsin DNR and has testified as an accident reconstruction
engineer in both criminal and civil cases.
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