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    Wisconsin Lawyer
    April 07, 2020

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    Restoring the Global JudiciaryVERDICT: It’s a Keeper

    Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs

    By Martin S. Flaherty (Princeton, NJ: Princeton Univ. Press, 2019). 344 pgs. $35. Order,

    Reviewed by Lawrence G. Albrecht

    Given the current political dysfunction in Congress, and institutional chaos in the White House, it is both logical and legally premised that the U.S. Supreme Court’s role in foreign affairs should receive enhanced focus by the legal community, particularly human rights advocates. Professor Flaherty timely and persuasively asserts that Constitutional originalism (yes, more Hamilton!) and the contextual history of early Supreme Court precedent addressing incorporation of international law and separation of powers principles strongly support this argument.

    Further, Flaherty argues that judicial “gate-keeping” doctrines, such as separation of powers, the political-question doctrine set forth in Baker v. Carr (which recently infused the Supreme Court’s decision to punt all gerrymandering cases), standing, and other nonjusticiability principles are not insurmountable barriers to revitalization of the Supreme Court’s foreign affairs docket. He advocates for the continuing vitality of the Charming Betsy canon, which evolved from Justice Marshall’s opinion that U.S. judges should interpret statutory law to not conflict with international law, and he argues for the extension of this core principal to interpretation of the U.S. Constitution. His historical argument, however, does acknowledge contextually pragmatic limitations on the judiciary’s ability to address murky and quickly evolving contemporary international crises that may necessitate immediate presidential or Congressional emergency measures.

    Recent international legal developments, including human rights treaties, foreign constitutional and statutory enactments, and corresponding international jurisprudence have necessarily intertwined with Supreme Court precedent in litigation that seeks to expand the federal judiciary’s provenance in enforcement of international law. Human rights advocates in particular will learn much from Flaherty’s concise narrative of post-World War II Congressional initiatives, which he persuasively asserts reflect revitalization of natural-law human rights principles.

    Flaherty’s related recital of prominent recent Supreme Court decisions addresses the Court’s struggle with conflicting precedents and the perpetual separation-of-powers struggle emanating from the well-known Youngstown decision and concurring opinions, and the lesser considered Dames & Moore v. Regan decision concerning the Iranian hostage crisis. These competing doctrinal dynamics are currently reflected in the Supreme Court’s reluctance to intervene when confronted by vigorous assertions of executive power and in the Court’s tightly cabined adoption of international law.

    Flaherty’s thorough review of recent human rights-related decisions cogently makes his case that the Supreme Court has retreated from foundational principles of originalism otherwise regularly incanted by several sitting Supreme Court justices in selected domestic law contexts. In sum, it is obvious that the current Supreme Court favors enhanced governmental sovereignty, immunity, and isolation from international legal developments, with few exceptions. This contemporary judicial retreat is also readily discernible in multiple domestic Supreme Court cases Flaherty analyzes wherein foreign law has intruded.

    Flaherty develops these competing themes chronologically with a plethora of footnotes detailing specific cases and related academic literature. Overall, the treatise is a significant achievement of legal scholarship and tempered advocacy.

    Lawrence G. Albrecht, Valparaiso 1973, is a partner at First, Albrecht & Blondis S.C., Milwaukee.

    Soar! … LoserVERDICT: It’s a Keeper

    Soar! … Loser

    By Ross A. Phelps (La Crescent, MN: Puntillero Press, 2019). Novel. 333 pgs. $15. Order,

    Reviewed by Renee Crain

    It’s fitting that a book about rape and multiple murders would start in the dead of winter.

    “Soar!…Loser: A Novel,” by attorney Ross A. Phelps, is the third book in his series about Lleyellyn Shay, a young ranch hand in Montana, where this complex mystery begins.

    Shay’s ranch foreman and best friend is Manual Montoya. Montoya is an ex-con who, by a combination of sheer luck, timing, and charisma, lands a featured role in a major motion picture. Shay becomes Montoya’s agent in this endeavor.

    It is initially puzzling why these two main characters hardly talk, especially to one another, and when they do, their conversations are short and business like. But, as the story picks up pace toward the end of the first half of the book, readers find out why.

    We follow Shay and Montoya from a ranch in Custer County, Montana, to a penitentiary in South Dakota, a funeral in La Crosse, a rodeo in Las Vegas, and a Hollywood soundstage.

    We gradually realize that they are suspiciously connected to three unsolved murders by virtue of their relationships to the female victims.

    Shay and Montoya are what the author refers to as “cowboy vigilantes”: people who undertake revenge killings. This is not a “whodunnit” but a book about whether they’ll get away with it.

    The characters in this Northern gothic novel have wry wits and unassuming natures and are unapologetic about living in small, underpopulated towns. They each possess a horse sense of what is going on, particularly with the unsolved murders. Readers will notice that the women characters try the hardest to dig and piece together clues about who committed the unsolved murders. And it is clear that they will not alert authorities to what they know.

    If you are interested in the legal matters, the author gives you plenty. Along with the murders and sexual assaults, the novel touches on contracts, disclosure, agency, mortgage foreclosure, the Brady Act, criminal conspiracy, libel and defamation, copyright and intellectual property theft, a cease-and-desist order, and what the vigilantes and their friends refer to as the “technicality” Miranda law, as well as the “so-called” hearsay rule.

    It’s enjoyable to see how Shay, without any formal legal training, deftly negotiates and drafts contracts on behalf of his “client” Montoya, himself, and a stranger. This is amusingly plausible.

    “Soar!...Loser” is a quick read for anyone interested in how criminals hide in plain sight, the world of the secret cowboy vigilantes and their supporters, and people’s feelings about justice being done outside the legal system. It leaves the reader wondering how the characters will continue to operate under clouds of suspicion, as well as who will be their next victim. The author makes it clear that for cowboy vigilantes, the pursuit for justice is never ending.

    Renee Crain, U.W. 1986, works for the Weinberger Divorce & Family Law Group in Parsippany, N.J.

    The YokeVERDICT: A Tree Died for This?

    The Yoke

    By Darrell Dunham (Meadville, PA: Christian Faith Publishing Inc., 2019). Novel. 310 pgs. $26.95. Order,

    Reviewed by Dianne Post

    The author said it took him five years to write this book. During that time, he would have done well to take some basic writing classes. The book is a classic example of just about every amateur writing error ever discussed.

    Pages and pages of “telling not showing” were followed by a few pages of unrealistic dialogue divorced from action or scene. The cliff-hanger in the prologue was never followed up in the actual trial. The person who solved the problem was not the protagonist but someone else, who used methods that remain unknown but are highly implausible, including gross ethical violations in turning against her own client. Facts stated on one page were contradicted on another. The author often tried to use adverbs rather than action to indicate emotion. Jarring shifts in point of view were common.

    The author did describe a pretentious law firm well, and the underlying patent case about a big company stealing the little guy’s invention was full of murder, corruption, and intrigue. Money over principle is a well-worn but still relevant theme.

    Dunham’s Christian underpinnings were evident in a moot-court assignment, lectures, preaching, Bible passages, and frequent musings about first-world problems. Ironically, near the end of the book, Dunham undercut his own argument by admitting that the nonreligious guy was the most honest, ethical, and loving one around. As the bumper sticker says, one can be good without God.

    Clichés and stereotypes abounded, with good women struggling to save bad men to a predictable end. The author’s fixations on sex (avoiding it), height (everyone was 6 foot 2 inches or 6 foot 4 inches), and sports became irritating after a while. Theft of a paper by the bad guy in law school did ring true, however, because exactly the same thing happened to me in high school. Some of the legal actions were a bit suspicious (or maybe they do things differently in Illinois).

    Everyone in this novel got their comeuppance in the end, but unfortunately, that’s not how it works in the real world. We all hope we would be on the right side of principle but even then, justice does not always prevail. Ask the whistleblowers sitting in prison. As good writing, it isn’t. As a proselytizing tool, it won’t.

    Dianne Post, U.W. 1979, practiced family law for 18 years and then began international human rights work for the next 15.

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