Vol. 71, No. 8,
August 1998
Book Reviews
This Month's Featured Selections
We the Jury:
The Impact of Jurors
on Our Basic Freedoms
By Godfrey D. Lehman (Amherst,
NY: Prometheus Books, 1997).
369 pgs. Hard.
$26.95.
Reviewed by Nathaniel Cade
Jr.
We the Jury contains 12 chapters that convey an unknown history
as to the formation and implementation of the jury as we know it and how
juries have been at the forefront of protecting human liberty. Lehman uses
12 chapters to symbolize the 12 jurors that comprise the typical jury.
In the forward, Lehman bemoans and compares the O.J. Simpson juries and
their decisions. The rest of his book heads downhill because of Lehman's
apparent one-sided blessing of the jury system. For example, his opening
chapter deals with what he calls the "Father of Our Country."
He labels Edward Bushell the "Father of Our Country" because Bushell
allegedly stood up to the lords of England when he was selected to serve
on a criminal jury. One of the defendants in the criminal trial was William
Penn (for whom Pennsylvania was named and one of this country's most famous
Colonists). Penn was arrested with William Mead for practicing and preaching
their Quaker religion.
Lehman relies upon bits and pieces of historical information to weave
a tale of how Bushell saved Penn's life by refusing to allow the jury to
convict Penn or Mead. Although it reads wonderfully, the problem with this
style is that much of Lehman's weaving is his own interpretation of what
may have occurred during the trial, because only some of the words spoken
at Penn's trial were transcribed by the court scriveners.
In other chapters, Lehman addresses freedom of the press, rights of minorities,
and women's suffrage. The book fails to relate many of the problems a jury
can create, such as higher death sentence rates for minorities convicted
of capital crimes.
I found this to be an intriguing and easy read. Readers who fancy themselves
legal history buffs will find pleasure in Lehman's work. Just keep in mind
that many of the more intriguing and interesting points Lehman relates are
fictional.
Nathaniel Cade Jr., Michigan 1996, is an associate
at Michael Best & Friedrich LLP, Milwaukee.
The Complete Employee Handbook
Policies Manual for Law Firms
Edited by Lisa Walker-Johnson, Linda M. Thomas, and Susan D. Sjostrom
(Newtown Square, PA: Altman Weil Pensa Inc., 1997). Binder.
$225.
To order, call (610) 359-9900.
Reviewed by Theresa L. Schulz
Publisher Altman Weil Pensa Inc., a consulting firm to the legal profession,
succeeds with this book in providing the first comprehensive and legally
sufficient resource for law firms to develop or update employee handbook
policy manuals. There is sure to be a need for this type of resource, given
the growing body of law nationwide in which courts have held that employee
handbook policy manuals may alter the presumptive at-will status of an employment
relationship.
The book provides a comprehensive, up-to-date model employee handbook,
addressing more than 75 topics specifically tailored to law firm employers.
The model handbook section addresses general organization information, employment
relationship details, personnel record policies, employee benefit programs,
timekeeping and payroll issues, work conditions and hours, leaves of absence,
employee conduct and disciplinary action, and other miscellaneous issues.
The publishers include software on both CD and 3.5" floppy disks that
quickly and easily enable law firms to customize their own employee handbook
policy manuals.
This book also provides approximately 20 employment policy-related forms
that can be adapted quickly for use by law firm personnel departments. Sample
forms include employment applications, reference release forms, new employee
orientation checklists, offer letters, requests for leave of absence forms,
employee exit interview forms, and termination notices. These forms also
are included in the software, making it quite easy to modify them for a
particular firm's needs.
Law firms nationwide that need to create a careful yet comprehensive
employee handbook, but don't have the time to draft one from scratch, need
this resource.
Theresa L. Schulz, Minnesota 1993, practices employment
law in Wisconsin and Minnesota from Lake Elmo, Minn.
The Securities Enforcement Manual:
Tactics and Strategies
By Kirkpatrick & Lockhart LLP, Edited by Richard M. Phillips (Chicago,
IL: The ABA Business Law Section, 1997).
533 Pgs.
$149.
Reviewed by Terry F. Peppard
This text was assembled by a team of 15 members of the securities group
of the venerable Kirkpatrick & Lockhart LLP. The team was led by Richard
M. Phillips, chair of the firm's securities group, and long one of the leading
lights of federal securities practice.
The contributors claim more than 150 years' experience in the esoteric
world of securities law enforcement, and it shows in the near-exhaustive
treatment of practice tips and tricks given in 12 chapters covering both
the domestic and international dimensions of federal and state securities
laws and regulations of the United States.
Considering the topic, the text is remarkably readable. The authors have
taken pains to target the uninitiated as well as the seasoned veteran. There
are just enough footnotes to reflect a creditable level of scholarship and
to focus the reader's further research.
If there is a glaring omission in this volume, it's the absence of a
topical index. The complexity of the subject certainly warrants one, and
the reader who seeks only reference to this or that arcane subtopic, such
as variations in the scope of the subpoena powers among the SEC, the state
securities administrators, and the federal self-regulatory organizations,
will quickly note the oversight.
Also, presumably as a result of competitive considerations, the book
is a bit light on tips for creative alternatives to the traditional settlement
options preferred by the regulatory community. Mavens of the field likewise
will detect a superficial handling of the impact of the National Securities
Markets Improvement Act of 1996 on state securities law enforcement powers
and related issues of federal-state relations.
Still, this title is a worthy addition to the library of any lawyer who,
even if only occasionally, takes up the defense of a securities law enforcement
case.
Terry Peppard, U.W. 1973, a former chief of enforcement
for the Wisconsin Commissioner of Securities, practices in Madison.
The Gallows in the Grove:
Civil Society in American Law
By George W. Liebmann (Westport, CT: Praeger Publishers, 1997).
264 pgs.
$59.95.
Reviewed by Timothy J. McAllister
Centered around the concept of a purported deviation from the constitutionally
established separation of powers and the concurrent dishevelment of American
society, George W. Liebmann's The Gallows in the Grove: Civil Society
in American Law, covers a great deal of ground. A multitude of issues
is discussed with an admittedly conservative slant.
The text's core is chapter three, "Delegation to Private Parties
in American Constitutional Law," which was partially published in 1965
in the Indiana Law Journal (including 340 of the total of 611 chapter
ending references). Liebmann expands the concept of the abdication of legislative
duties from the electorate to the functional interpretation of the judiciary
in implementing law, to further cover legislative and judicial abdication
of their duties to private sector entities who create "law" through
rules and standards that are being upheld.
Liebmann's arguments concerning the distortion of legislation through
judicial review are sound, as is his questioning of the constitutional validity
of the private sector "law"-making through rules enactment and
enforcement by the public sector (as long as the "law" created
by delegated private authorities remains within the bounds of the judicially
approved frame).
To restore balance, Liebmann recommends a return to "judicial modesty"
and restraint. Reducing the availability of federally funded legal services
is suggested as a means to combat judicial oversight, particularly in the
area of administrative law for which Liebmann proposes "appropriately
trained laymen, including citizen volunteers," perform the tasks previously
performed by lawyers. Liebmann's chapter on "Lawyers and the Poor,"
which has no specific chapter references, can be summed up by the statement
that economically disadvantaged people don't need lawyers - they need
to form "passive" political organizations.
Liebmann advocates having citizen volunteers supervise convicted offenders
and paroling offenders to the custody of their "workplace organizations"
as a way to reduce the number of parole agents and get the community involved
in law enforcement. He also advocates combating the "evils that flow
from widespread gun ownership" through the use of "milder measures,
which would deny the right to ownership to those not subjecting themselves
to a training course, with periodic refreshments, in firearm safety, in
self-defense (including alternatives to firearm use), and in first aid emergency
response." As a professional working in the field of corrections, I
fail to envision crime rates plummeting due to the adoption of these measures.
Communitarian ideology resounds in Liebmann's advocation of reducing class action suits
used for the expansion of rights, and in the emphasis on volunteerism. The
repeal of zoning restrictions to form "[t]he woonerf, or residential
street-government regime, ... a Dutch innovation of the 1970s" is pushed
as a way to restore community values. The woonerf consists of private streets
and expanded legal property rights of the owners, but utopian thoughts aside,
sounds like a self-serving gated community for the established wealthy.
Completely lacking in graphics and making the reader wonder if Preager
Publishers uses a spell-check or proofreader, The Gallows in the Grove
is an unbalanced book in which some chapters are obsessively referenced
while the majority have few to no specific chapter references to document
or substantiate statements made. There is plenty of food for thought and
cocktail party conversation could rage in debate over the ideas and opinions
expounded. Serious national debate or the adoption of the advocated reforms
is doubtful, as it should be.
Timothy J. McAllister is employed by the Wisconsin
Department of Corrections at the Wisconsin Resource Center.
Solving the Puzzle of Interest Group Litigation
By Andrew Jay Koshner (Westport, CT: Greenwood Publishing Group, 1998).
144 pgs.
$52.95.
Reviewed by Michael P. Matthews
From its title, one may expect this book to be a treatise or handbook
on difficult issues facing interest group litigators, such as thorny problems
of standing or selecting proper plaintiffs and issues to sponsor. Instead,
the "puzzle" is an academic study of why interest groups' filings
of amicus curiae briefs with the U.S. Supreme Court have increased over
the past 50 years.
The author notes that others have proposed and extensively researched
possible answers to this question, but he contends that his book "brings
everything together" and examines the aggregate phenomenon. However,
one may question the wisdom of trying to describe and assess the 16 or so
previously proposed theories in just 105 pages (not including appendices).
The author's summary of others' theses, presented in about seven pages, is the
book's most valuable part for those who are intellectually interested in
the question presented (the book is of no use to practitioners, even those
who represent interest groups, as it completely lacks practical information).
The rest of the book is the author's assessment of each theory, in which
he applies only his own opinion and the results of his deficient survey
of interest groups. For example, he argues that liberalized standing rules
have not caused the increase in interest group litigation because only 13
percent of groups surveyed said that standing rules affected their decision
to litigate. He then reveals that "the 13 percent represents only
one group because only eight responded to this question,"
even though perhaps thousands of interest groups litigate. He argues
that his survey is "very compelling evidence," when in fact
its minuscule sample size (only 26 groups responded to the survey)
renders it worthless.
The author concludes that his book did not answer the "big question"
of the "implications" of the increase in interest group litigation.
Or, in other words, who cares?
Michael P. Matthews, Michigan 1996, Order of the
Coif, is a law clerk for Chief Judge J.P. Stadtmueller of the U.S. District
Court for the Eastern District of Wisconsin.
The International Guide to Nonprofit Law
By Lester M. Salamon (New York, NY: Wiley Publishers, 1997).
400 pgs.
$125.
Reviewed by Richard Berkley
For academics who have research interests in the international role of
nongovernmental nonprofit organizations, Lester Salamon's treatise fills
a significant gap in the literature. For the lawyer involved with counseling
nonprofit organizations or advising on gifts to nonprofits, the book's utility
has a different basis.
Based on the Johns Hopkins Comparative Nonprofit Sector Project's legal
field guides, this book examines the basic law of nonprofit organizations
in 22 countries. Consequently, it provides a point of departure from which
lawyers can begin detailed studies of the relevant national legal systems.
It also serves lawyers by providing a sample of how legal institutions -
from developed, developing, and former Soviet-bloc countries - treat
nonprofit organizations.
The nonprofit sector, long an important facet of life in the United States,
has been growing in international importance because of increased funding
by and interaction with transnational corporations, governments, and the
United Nations. In addition, national nonprofit organizations have been
increasingly involved in seeking multinational or regional solutions to
common problems or national policy conflicts. Thus, it behooves lawyers
to be conversant with the laws surrounding nonprofit activity in a variety
of countries. Despite the growing importance of the nonprofit sector, however,
little systematic research had been done in this area. Thus, a lawyer or
an academic would have an onerous task finding and analyzing all the relevant
principles, statutes, and caselaw necessary to provide knowledgeable counsel
to a client.
Salamon organizes the book's analysis around 10 central issues, including:
the legal context within which the organizations operate, organizational
eligibility for nonprofit status, forms of governance, tax treatment, personal
benefit restrictions, obligations to the public, allowable business activity,
limitations on funding, limitations on political activity, and impending
legal developments. Then, each country-oriented chapter analyzes the
relevant national legislation in the context of these questions.
For example, charitable contributions by American corporations are subject
to IRC § 170(c)(2)(A), which creates the "domestic organization
restriction" (DOR) on deductibility. Consequently, unless the donee
entity was created or organized under U.S. laws, contributions generally
are not deductible. However, as Salamon's book notes in its analysis
of Canadian, Israeli, and Mexican charity law (chapters 6, 13 and 16,
respectively), U.S. tax treaties with these countries alter the application
of the DOR in some circumstances.
The book ends with three useful sections for practitioners and academics. First,
Salamon reprints some extracts from the World Bank's "Handbook on Good
Practices for Laws Relating to NGOs," which is a resource for drafting
and debating new nonprofit legislation around the world. Second, draft "guidelines"
for government treatment of the nonprofit sector and for the internal operations
of nonprofit organizations is included. The guidelines were assembled by
a convocation of experts in Johns Hopkins' International Fellows in Philanthropy
Program who met at a series of international conferences in the early 1990s.
Although they are not a set of model rules, and the Fellows are not analogous
to the Commissioners drafting model uniform state laws, the "guidelines"
are a first effort of its sort well worth keeping under observation. Third,
Salamon's wide-ranging, current, and multilingual bibliography is a useful
tool for the researcher of international nonprofit law.
Richard Berkley, U.W. 1997, also has an M.A. in
public history from NYU. He is writing his doctoral dissertation on the
Rockefeller Foundation's role in shaping U.S. hemispheric relations between
WWI and WWII.
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