Wisconsin Lawyer
Vol. 79, No. 3, March
2006
Book Reviews
Marital Property Law in
Wisconsin, 3rd ed.
By Keith A. Christiansen, F. William Haberman, Philip J. Halley,
Andrew Herbach, David L. Kinnamon, Margaret Dee McGarity, Michael R.
Smith, Stephen R. White, Michael W. Wilcox (Madison, WI: State Bar CLE
Books, 2004). 3 vols., 1,800+ pgs. $195, members; $245, others. Order,
(800) 728-7788; www.wisbar.org/books.
Reviewed by Barry J. Boline
As noted in the preface, "Marital Property Law in Wisconsin
has been a leading source of information regarding Wisconsin's community
property system for over 20 years." Because the book had not been
updated since 1995, the authors chose to produce an entirely new
three-volume edition, covering recent case law and changes in state and
federal legislation. While providing a complete history of the
development of community property law in Wisconsin, the set quickly
moves into explanations of very detailed and highly specific areas of
marital property law. Additionally, the chapter on estate planning has
been entirely redrafted, with new subparts added, reflecting the impact
of marital property law on estate planning in Wisconsin.
While not strictly a form resource, this set does provide several
forms related to marital property agreements, estate planning
documentation, and the litigation of marital property issues outside of
the divorce arena. While there is no accompanying CD with downloadable
forms, the value of the forms provided is less for cutting and pasting
and more for explanation.
Like most "brown books" published by the State Bar of Wisconsin, this
set is by no means a cover-to-cover read. However, if your practice
involves any aspect of estate planning, divorce, bankruptcy, debt
collection, real estate, or taxation, you will want to have this third
edition of Marital Property Law in your library. It is the best
starting place for information related to marital property law in
Wisconsin, and more often than not, the answers to inquiries on a
marital property law-related topic will be found within its text. Take
caution, however, because the authors presuppose a working knowledge of
marital property law. This set is encyclopedic and is not a primer on
marital property law.
All in all, with the third edition of Marital Property Law in
Wisconsin, the authors have done what is difficult to accomplish;
they have improved on what has been the best resource on marital
property law for many years. With this update, this set will continue to
be used by practitioners for many more years to come.
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A Practical Guide to Federal Evidence:
Objections, Responses, Rules and Practice Commentary, 7th
ed.
By Anthony J. Bocchino & David A. Sonenshein (Notre Dame, IN:
NITA, 2005). 390 pgs. $60. Order, (800) 225-6482.
Reviewed by Frederic W. Knaak
There are some useful, softbound, trial-related texts that have found
their way into the brief cases of savvy litigators and law students for
years. This guide is that kind of well-thumbed practice aid, and its
popularity and usefulness is evidenced by NITA's recent release of the
book's seventh edition.
The authors have maintained the manual's practical organization by
dividing the material into sections that logically group possible
objections by subject matter. Each section contains necessary
definitions, the form of objections and responses, and a reprint of the
applicable federal rule. Lawyers and students alike will appreciate the
succinct and pithy commentary accompanying each topic.
The guide's usefulness has always been in its good organization, its
reliability, and its brevity. It is a very good tool when you need a
quick reference. Anyone looking for deeper (or more scholarly) analysis
of thorny evidentiary problems may find the guide useful as a starting
point but not as a final authority.
The new edition contains substantial revisions reflecting the most
recent changes to the Federal Rules of Evidence. An interesting, new
chapter addresses the changes on hearsay in criminal cases enunciated by
the U.S. Supreme Court last year in Crawford v. Washington.
Other changes include new material on cross-examination technique and
the creation and use of exhibits.
For anyone who has not used the guide in the past, it is a highly
recommended, trustworthy tool, suitable as a courtroom resource (or
crutch). Current users will find it worthwhile to "upgrade" to this
updated, improved edition.
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Guardianship and Protective Placement
for the Elderly in Wisconsin, 2nd ed.
By Gretchen Viney (Madison, WI: State Bar CLE Books, 2004). 200+ pgs.
$29, members; $40, others. Order, (800) 728-7788; www.wisbar.org/books.
Reviewed by Melinda A. Gustafson
This book grew out of a chapter written for the State Bar's elder law
book. Not only does Guardianship and Protective Placement for the
Elderly in Wisconsin employ a structure familiar to Wisconsin
attorneys, it is a highly useful "how-to" for new attorneys or those
seeking to expand their practice into issues of guardianship and
protective placement for the elderly in Wisconsin.
Viney explains that when informal means of providing for the care and
safety of an elderly person fail, guardianship or protective placement
may become a necessity. As the author walks the reader through the world
of guardianships, protective placements, and advocacy roles, she
includes numerous features that transform this book into a highly useful
reference guide.
The author includes practice tips and historical notes, which are
highly effective in taking the reader beyond the words in statutes and
into the real world application. For example, a chapter on the role of
the petitioner's attorney begins with a practice tip stating that when
the chapter was originally written, the petitioner most likely would be
the county and represented by the county attorney. However, Viney notes
that practice has changed over time because of scarce resources, and the
private practitioner must approach the statutes in a more shrewd manner
than a literal reading of the statutes might suggest. As a result, the
reader learns about the current law and its historical context.
Several extensive checklists throughout the book will be useful to
the reader when faced with a variety of issues, including: indicators of
possible elder abuse, required contents for a petition, and duties of
the petitioner's attorney in uncontested guardianship and protective
placement proceedings.
Viney clearly states the book's limitations. For example, she notes
that the book does not provide sufficient discussion of trial advocacy
skills called for in contested guardianship or protective placement
cases. The book also includes discussion of where the law lacks clarity.
For example, statutes regarding independent medical or psychological
evaluations are unclear as to whether there can be an independent
evaluation of any issue other than competency.
This book is an ideal resource for any attorney looking to begin
working in the area of guardianship of the elderly.
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School Book Nation: Conflicts Over
American History Textbooks from the Civil War to the
Present
By Joseph Moreau (Ann Arbor, MI: The Univ. of Michigan Press, 2003).
382 pgs. $19.95. Order, www.press.umich.edu.
Reviewed by Paul B. O'Flanagan
School Book Nation examines how American history texts have
been a battleground in a long series of culture wars. The lion's share
of these battles has centered on which racial and ethnic groups deserve
to be included in the narrative of American history, and thus which
groups should be regarded as truly "American."
The book is a highly academic work, but the introduction provides a
pithy overview. The book's ongoing theme is that as minority groups gain
political power, they are able to gain inclusion into the narrative of
history textbooks. Textbook publishers, as capitalists, must be
sensitive to the desires of politically active groups. Thus, as groups
gain political power to influence textbook purchasing decisions, they
can require changes in school textbooks.
In almost every instance the author examined, one group tries to gain
inclusion into the narrative of American history and another group tries
to prevent this inclusion. Issues and arguments are recycled anew each
time a different group seeks to enter the narrative. The group seeking
inclusion usually wants textbooks to note examples of the group's
military valor. Conservatives feel that this results in less emphasis on
"real" American history as it traditionally has been taught. For
example, in an effort to celebrate the contribution of
African-Americans, textbook writers recently began including Crispus
Attucks, a Black sailor killed in the Boston Massacre of 1770.
Conservatives, who felt that Attucks' inclusion resulted in the
slighting of Paul Revere and not realizing that Attucks had been widely
included in texts until the imposition of Jim Crow laws in the South,
objected.
Moreau also highlights the effect of a system that rewards publishers
for not offending special interest groups. For example, after the Civil
War, in an effort not to offend Southern sensibilities, texts tended to
blame "extremists" in both the North and South for the war and portrayed
slavery as an institution that equally benefited Blacks and Whites.
Moreau concludes with a discussion of the September 11 attacks and
their effect on the American mythos. Moreau contends that as the
highjackers saw a single American people, so Americans must see
themselves as a single national community.
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Traffic Law and Practice in Wisconsin,
3rd ed.
By Barry S. Cohen, Thomas J. Hammer, Ralph A. Kalal, Joe Maassen,
Todd E. Meuer, Christopher A. Mutschler, John J. Sobotik (Madison, WI:
State Bar CLE Books, 2004). Two vols., 1,050+ pgs. $175, members; $220,
others. Order, (800) 728-7788; www.wisbar.org.
Reviewed by Raj Kumar Singh
It is hard to imagine a legal privilege that is more valued than
being able to drive along our public thoroughfares. Yet, it is hard to
think of an issue that is taken less seriously by nonlawyers than that
of dealing with traffic tickets that can cause the loss of that
privilege. Most lawyers will only practice traffic law when established
clients receive a citation. While those clients likely will not want to
pay much for traffic ticket counsel and representation, those same
clients likely will be unforgiving of traffic law malpractice should
they lose their driver's license. And that is exactly why every
Wisconsin attorney who would discuss a traffic ticket with a client
should have a copy of Traffic Law and Practice in Wisconsin on
hand for quick reference.
The six authors of this two-volume, 1,000-plus page practice manual
have more than 140 practice years among them, and their experience has
enabled them to produce a work that is efficiently comprehensive. The
first volume contains six sections that address Wisconsin's licensing
system in general, commercial driver licensing, statutory procedures for
traffic law cases, and three chapters relating more directly to offenses
and violations. Volume II relates to drinking and driving issues and
contains nine appendices that reproduce Department of Transportation
charts, alcohol influence testing information, sentencing guidelines,
relevant parts of the Wisconsin Administrative Code, forms, and
more.
In publishing this latest edition of Traffic Law and Practice in
Wisconsin our State Bar continues in its tradition of exercising
the highest publishing values. I confidently predict satisfaction for
every Wisconsin attorney who purchases this manual.
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Active Liberty: Interpreting Our Democratic
Constitution
By Stephen Breyer (New York City, NY: Alfred A. Knopf Publisher,
2005). 149 pgs. $21.Order, www.aaknopf.com.
Reviewed by Gordon R. Shea
Justice Stephen Breyer's short new book, Active Liberty:
Interpreting Our Democratic Constitution, began life as a Harvard
speech. And to its credit, the book maintains a straightforward,
speaker-like tone that is enhanced by the use of concrete examples from
recent controversies on the U.S. Supreme Court's docket.
Breyer's book also could be read as a rejoinder to another brief
volume that began as a speech: Justice Antonin Scalia's well-received
book of roughly a decade ago, A Matter of Interpretation.
Notably, however, Breyer essentially eschews the notion that that his
book outlines any overarching theory of Constitutional law. Rather,
Breyer maintains, it offers a practical philosophic construction on
which judges (at whom the book often seems most aimed) may rely to reach
the best results in cases in which traditional judicial tools yield no
clear answers. Essentially, Breyer holds that a central goal of the
Constitution is to empower citizens to solve their own problems, through
their elected representatives. The Constitution, in Breyer's view, was
not written solely to keep government from trammeling citizens' personal
freedoms. Rather, that goal stands alongside another Constitutional
goal: that of promoting a kind of affirmative, positive, "active,"
liberty. The scales of justice, Breyer argues, have tipped too far away
from this latter, more "ancient," conception of liberty. And to his
credit, Breyer does not shy away from naming a primary culprit in this
alleged unbalancing: jurists who identify themselves primarily as
adherents of the originalist/strict constructionist Constitutional
school.
This critique is convincing enough for those inclined to be open to
it, but Breyer fails to show why "active liberty" should trump most
other Constitutional approaches. Why is active liberty any more valid
than, say, a natural law approach to the Constitution? Indeed, is active
liberty a unique conception at all, or is it merely an uncredited twist
on John Hart Ely-like principles that emphasize the Constitution's
democratic functions?
Readers who hope to see Breyer further develop his occasional
forceful criticisms of what is popularly identified as the Scalia/Thomas
wing of Breyer's own Court (for example, the Constitution is addressed,
Breyer reminds readers, to "we the people," not "we the people of 1787")
will also be disappointed. Active Liberty is no left-wing
version of Robert Bork's Tempting of America. Still, one can't
help but think that Justice Breyer would take such characterization as
pretty high praise.
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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.
Publications and videos available for review
- The ABA Guide to Credit & Bankruptcy: Everything You Need to
Know About the Law, Your Rights, and Credit, Debt, and Bankruptcy,
by David L. Hudson Jr. (New York, NY: Random House Reference, 2006). 299
pgs.
- The Art of Mediation, 2nd ed., by Mark D. Bennett &
Scott Hughes (South Bend, IN: NITA, 2006). 269 pgs.
- Business and Commercial Litigation in Federal Courts, 2nd
ed., by Robert L. Haig editor-in-chief and 199 authors (Eagan, MN:
WestThomson, 2005). 8 vols., CD-ROM forms. [Reviewer must have
extensive, direct practice experience.]
- Elevator and Escalator Accident Reconstruction, 2nd ed., by
David A. Cooper, Joel D. Feldman J.D., Ronald D. Schloss (Tucson, AZ:
Lawyers & Judges Publishing Co., 2005). 448 pgs.
- Just Silences: The Limits and Possibilities of Modern Law,
by Marianne Constable (Princeton, NJ: Princeton Univ. Press, 2006). 232
pgs.
- A Practical Guide to Leadership for Lawyers, by Herb
Rubenstein (South Bend, IN: NITA, 2005). 148 pgs.
- Wisconsin Wages & Hours Handbook, Daniel T. Dennehy
(Madison, WI: State Bar of Wisconsin CLE Books, 2005). 300 pp.
Wisconsin Lawyer
