Book Reviews

• Free Expression in America: A Documentary History
• Assigning Retirement Benefits in Divorce, 2d Edition
• The EPL Book: The Practical Guide to Employment Practices Liability and Insurance
• LSAT: The Official TriplePrep, Vols. 1 & 2
• The Supremes: Essays on the Current Justices of the U.S. Supreme Court
• A Theory of the Trial
• Trademark Counterfeiting, Product Piracy, and the Billion Dollar Threat to the U.S. Economy
• To review a book

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.

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.

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.

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.

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.

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.

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.

Wisconsin Lawyer