Book Reviews
This Month's Featured Selections
Estate Planner's Guide to Family
Business Entities
By Louis A. Mezzullo
(Chicago, IL: ABA Real Property,
Probate and Trust Law Section, 1998).
214 pgs. $89.95.
Reviewed by Martin A. Blumenthal
This guide speaks to the seasoned tax professional and is not meant
for the general practitioner. The language is terse and technical with
very few illustrative examples. The book provides a good survey of the
tax law concerning partnerships and corporations and would be a handy
reference for a tax person.
The goal of estate and tax planning is combining the client's wishes
with tax savings where possible. The book treats the area of estate and
tax planning that maps out strategies for getting the kids into the
family business without also taking in the government as a partner. To
reach this goal, one needs to know how to structure the business (type
of entity), the tax laws that apply to that entity (partnership,
corporation, and limited liability company), the gift and estate tax
laws, and a smattering of trusts.
There are some sample forms for organizing a limited partnership and
for a limited liability company. These forms illustrate many of the
choices that partners or members have in organizing the operating
structure of the business entity.
This guide probably would sell better among some general
practitioners if the language did not sound like a treasury regulation
and major concepts were illustrated by examples. Tax issues are
difficult to understand in the abstract, which is why a general
practitioner would not find this work useful.
Bad Software: What to Do When Software
Fails
By Cem Kaner & David Pels
(New York, NY: John Wiley & Sons, 1998).
365 pgs. $23.99.
Reviewed by Richard Berkley
This book probably should go on every computer user's bookshelf, and
particularly on lawyers' bookshelves. Like the best of Nolo Press books,
Bad Software uses a consumer-oriented approach to demystifying
an area in which one's rights and remedies are not immediately clear.
Better yet, in addition to making the book accessible to nonlawyers,
there are sufficient citations to precedent - and a specialized, linked
Web site - for lawyers to use this book as a professional reference.
The authors designed the book to be a "readily accessible
problem-solving tool." The first chapter instructs the reader how to
decide whether there is a right to a refund, and how to get one. It also
briefly discusses the Uniform Commercial Code (UCC) rejection rules, and
offers tips on what order to read the chapters if one only wishes to
quickly solve a specific problem.
The book has two general categories of chapters: 1) overview chapters
that provide insight into one's situation and into choosing one
problem-solving approach rather than another; and 2) self-help chapters
that render valuable advice on substantive rights and the proper
procedure to gain the desired remedy. Chapter 2, for example, explains
briefly why businesses release bug-plagued software, and why customer
help lines are often of poor quality. Chapter 3, in contrast, gives an
easy-to-follow 10-step process to make that first call to the software
publisher requesting them to make you whole.
Chapters 1-7 provide the means and rationale for why and how one
would attempt to solve problems with a software publisher without the
assistance of counsel. Chapters 8-10 provide an overview of a
paradigmatic lawsuit. These chapters provide information helpful in
determining how one might decide between hiring counsel or proceeding in
a small claims venue.
Bad Software concludes with a well-reasoned discussion of
the proposed Article 2B of the UCC, and, in the authors' opinion, why it
is bad for consumers and small business owners such as sole
practitioners or smaller partnerships. Since this section is extensively
footnoted and followed by several relevant references, it provides a
foundation upon which readers can form their own opinions about UCC
2B.
Lawyers should read Bad Software if only for its advice on
avoiding purchasing poor quality software and how to gain a better
bargaining position from the moment of purchase. The book gains value
with its plain-English discussion of the Magnuson-Moss Act's effect on
software warranties, the 7th Circuit's ProCD decision on "shrink-wrap"
and "click-wrap" licenses, and its easy-to-follow discussion of warranty
disclaimers and limitation of remedies.
Employment Litigation Handbook
Edited by John W. Green & John W. Robinson IV
(Chicago, IL: ABA Litigation Section, 1998).
345 pgs. $89. To order, (800) 285-2221.
Reviewed by Kristine Nelson Fuge
The 1990s have brought a tremendous change in employment law through
both judicial and legislative regulation of the employment relationship.
Federal initiatives such as the Americans with Disabilities Act and
Family Medical Leave Act and the rise in employment-related tort claims
such as defamation, negligent retention, and infliction of emotional
distress have forced employers and employees to increase their knowledge
of the employment relationship. The 1998 U.S. Supreme Court decisions in
Faragher v. City of Boca Raton, Burlington Industries Inc.
v. Ellereth and Oncale v. Sundowner Off Shore Services
provided further evidence of the continued growth and importance of
employment litigation in this country.
The Employment Litigation Handbook is a compilation of
academic expertise and practical advice from attorneys with diverse
perspectives. The editors have made a special effort to include both
employee and management viewpoints to provide balance. Contributors
include in-house counsel, mediators, and attorneys in private practice
from across the nation.
The book provides a topical format, each chapter discussing different
stages and considerations involved in the employment litigation process.
Sample materials, included in the appendices of most chapters, are
informative and useful. Throughout the text, relevant cites to the
applicable statute, rule, case, or code are included for further
reference.
The book's first section discusses considerations in commencing the
lawsuit, such as damages, complaint drafting, venue selection, and case
evaluation. Practical tips on responding to the lawsuit follow. After
the suit has been commenced, various pretrial considerations are
examined, including discovery techniques and the use of experts.
Discovery is approached from both an employee and employer standpoint,
offering a simplified list of major information topics to be sought by
plaintiff's attorneys along with techniques for employers to avoid
inconsistencies in responding to discovery.
For practitioners unfamiliar with basic trial theories of employment
cases, the editors have included a chapter offering advice on how to
successfully explain the case to the fact-finder, tips on the proper
selection of witnesses and exhibits, and specific preparation techniques
for trial. The book also addresses ethical issues and provides a
framework to analyze potential conflict of interest situations. The
editors also have included a section on arbitration and mediation of
employment disputes that contains thoughtful advice on deciding when or
if to engage in alternative dispute resolution.
Whether a seasoned or new employment law practitioner, the
Employment Litigation Handbook is an inexpensive and valuable
resource for attorneys.
The Politics of Law
Edited by David Kairys
(Boulder, CO: Westview Press, 1998).
Paper. 725 pgs. $16.
Reviewed by Edward S. Marion
The title says it all. Any "the politics of" book is an attempt to
expose some nominally pure endeavor as a less-wholesome political one.
To brand something as political is to debase it.
Get ready for this bombshell: The political process does not end with
the enactment of legislation; lawyers intentionally appeal to the
political and other perceived value systems of judges, and judges
intentionally decide cases based upon those values. How shocking!
Every intellectually honest lawyer and judge knows that the law
provides: "a wide and conflicting variety of stylized rationalizations
from which courts can choose. Social and political judgments about the
substance, parties, and context of a case, as well as about a range of
institutional concerns, guide such choices, even when they are not the
explicit or conscious basis of decision."
Of course, the public face of the legal profession is that the law is
above politics; judges are fungible, applying consecrated objective
principles to the facts. You know, "Judges don't make the law, they just
apply it." Therefore, all the public is supposed to care about when
considering whom to vote for as judge is identifying the intelligent,
honest, and hardworking person. A judge's personal views on the issues
are irrelevant.
In fact, any good lawyer tries to appeal to a judge's personal
beliefs. The skill comes in finding the rule that fits the intended
result and pushing the right buttons without being obvious. And, our
"best" judges know how to make their personal judgments sound inevitable
by citing the "correct" authorities.
Having accepted the reality of the legal process, this book's
contributors might have been expected to bemoan the sorry reality of the
legal world and call for a return to the days - were there such days? -
of honest and pure adjudication. But they don't. They applaud the way of
the world and advocate using the revealed legal system to further their
hysterically anachronistic left-wing agenda.
According to the authors, the only things wrong with the legal system
are Republicans and conservatives. The law exists "to take up the cause
of the rich." Law schools train "for willing service in the hierarchies
of the corporate welfare state." The struggle is to "develop new
entitlements that redistribute income and power, and to break down the
false dichotomies between wage work and welfare" and to develop an
"international system of government."
If you want a nostalgic trip down Marxist memory lane - assuming
you're not a recent law school graduate and, therefore, already mired in
the nonsensical rhetoric of the Left - this beast of a book is for you.
If you want to learn something useful about the law, read A Civil
Action.
Sentencing Digest
(Williamsburg, VA: National Center
for State Courts, 1998).
38 pgs. $5. To order, (888) 228-6272.
Reviewed by Thomas G. Wilmouth
Presumably, a criminal defense practitioner would be excited to read
this report developed by the National Association of Sentencing
Commissions (NASC), the Conference of State Court Administrators
(COSCA), and the National Center for State Courts (NCSC), to gain
insight into this most important phase of the criminal justice system.
The report is highly technical such that it is difficult to comprehend
and merely raises issues rather than provides answers. The reader must
strain through the brief report to gain any meaningful information.
Some value, however, is found in the history of sentencing included
in the report. Sentencing in the 1960s was based upon basic judicial
discretion, in which courts imposed "indeterminate" sentences, and the
rationale was to impose a sentence that was just for the individual
defendant. The 1960s coincided with a period of optimism about
rehabilitation; treatment displaced punishment as the official role of
penal institutions. Sentencing reforms since the 1970s, organized around
the principle of "just desserts," have sought to reduce judicial
discretion. Many state parole boards have been eliminated or have had
their discretionary release authority substantially reduced and the
politically popular mandatory minimum sentences have been enacted,
together with habitual offender and "three-strikes" provisions.
Minnesota enacted the first state sentencing guidelines system in
1980 and several states have since followed. No state, however, has gone
the route of the U.S. Sentencing Commission and developed a highly
detailed and mechanical set of guidelines without a clear rationale for
use by the federal courts. The report asserts, without any support for
this view, that observers today are stressing more the need for
maintaining judicial discretion. The report reminds the reader that
sentencing reform has not curtailed and has likely increased the
prosecutor's general discretion.
The report contains a brief section on truth-in-sentencing, which
will be effective in Wisconsin on Dec. 31, 1999. Labeled "the 1990s
reform," it completely turns away from rehabilitation and treatment, as
the defendant actually serves an amount of time that is closely aligned
with the court's original sentence. The report contends that this law
will allow judges to creatively circumvent statutory provisions in order
to consider adequately the full array of offender characteristics. The
report also notes that the enactment allows a state to be eligible for a
share of $8 billion in federal funding through the year 2000. The norm
of the law for most states seems to be 85 percent service of the imposed
sentence.
The report fails to discuss adequately the costs involved in this
law, other than to note that intermediate sanctions for nonviolent
offenders, which also can be built into a sentencing guideline scheme,
will make prison beds more available. The report also fails to mention
the difficulties this law will cause jail administrators.
On the issue of sentencing disparity, the report notes that despite
the traditional goals and considerations of sentencing, sentencing still
comes down to the court's moral judgment. Evidence of racial disparity
in sentencing may reflect a failure to rigorously consider the full
range of variables, legal and nonlegal, or the disproportionate
participation in crime among various races. Ongoing adjustment of
sentencing guidelines is suggested to decrease perceived disparity.
Prison populations have increased in all of the states studied, but
the rate of new prison commitments has been reduced in some states and
maintained in others. The report inadequately concludes that it is
unknown if sentencing guidelines have affected those trends.
For a relatively experienced criminal law practitioner, this report
was very hard to follow and it is not recommended reading.
Wisconsin
Lawyer
