Vol. 73, No. 7, July
2000
Book Reviews
This Month's Featured Selections
Transforming Practices: Finding Joy
and Satisfaction in the Legal Life
By Steven Keeva
(Chicago, IL: Contemporary Books, 1999).
226 pgs. $17.47.
Reviewed by Jason T. Studinski
This book is an epiphany. I recommend it without hesitation.
Transforming Practices offers a long overdue integrated
approach to the practice of law. As Keeva notes, "If the goal of law
school is to teach you to think like a lawyer, the goal of this book is
to enhance the experience of being a lawyer by reminding you of how you
can cultivate your innate ability to think, feel, and be exactly what
you are - a human being."
Keeva accomplishes this task by profiling individual lawyers who
demonstrate an aspect of his all-encompassing approach to law practice.
The reader delves into the lives of the featured lawyers and watches
them hone their skills and regularly summon and apply them with
razor-like precision. Along the way, these lawyers search for meaning in
what they do. Keeva expounds upon the lessons they have learned and
enunciates a practical and unified approach to practicing law.
In each chapter, the author employs lively prose and offers unique
insights that deepen and enrich the practice of law. For example, in
"The Listening Practice," the author exposes our common deficiencies in
listening and recommends exercises to improve our comprehension. As part
of becoming a better listener, Keeva helps us identify our prejudices
and take corrective action so that they do not interfere with
understanding what must be understood. Each chapter offers equally
important building blocks that complement one another.
The author forces readers to embark on a journey of self-discovery,
leading to greater awareness, and hopefully culminating in happiness.
Lawyers often are fixated on a particular goal, to the detriment of
achieving true satisfaction. The lesson of this book is to leave behind
such narrowmindedness to fully appreciate the wonder that surrounds us
every day.
Jason T. Studinski, U.W. 1998, is
the founding member of Studinski Legal Group LLC, Madison. He practices
plaintiff's employment, civil rights, and personal injury law.
The Appearance of Equality
By Christopher M. Burke
(Westport, CT: Greenwood Press, 1999).
224 pgs. $59.95. Order, (800) 225-5800.
Reviewed by Charles Crueger
The U.S. Supreme Court's redistricting cases dealing with attempts to
benefit a specific minority group through "racial gerrymandering" under
the Voting Rights Act are among the most controversial on its docket
today. One reason for the controversy is that these cases are so
theoretically complex - they address issues of racial equality and what
fair representation means in a liberal democracy - that people are bound
to disagree no matter what the result. Another reason is that these
cases touch a raw nerve in our society because they reflect our
lingering racial divisions and tensions and remind us that only recently
the law denied some citizens the liberties enjoyed by others on the
basis of race.
The Appearance of Equality attempts to "describe and undo"
(the author's term) various theories about fair representation
justifying Supreme Court redistricting opinions. On this, the author
does a good job. First, Burke describes the various liberal and
communitarian conceptions of fair representation (communitarian
conceptions focus on the social nature of life and emphasize the
embodied status of the individual person in society, while liberal
conceptions focus on the abstract civil and political rights of
individuals). Burke then explains how these conceptions need not be
mutually exclusive or antagonistic, and shows how the Justices rely on
both conceptions to argue their respective positions. In short, Burke
lays out an interesting analysis of the Court's redistricting
opinions.
Yet for all this, Burke never steps beyond dissecting the Court's
opinions to develop a legal theory on fair representation and equality.
He never expresses a firm opinion on how the law, and therefore the
Court, ought to approach the redistricting cases. Instead, he simply
states at the outset that there is no such thing as fair representation,
and apparently, as the title suggests, concludes that there is no
"correct" outcome in these cases. This is an untenable position, for
legal argument in all hard cases turns on contested conceptions of
abstract rights and principles; and it is the judge's duty to discover
what the rights of the parties are in our constitutional scheme of
government. But, by avoiding the issue of what conception of fair
representation is a more satisfactory elaboration of the general idea of
equality - the hard issue at the heart of the redistricting cases -
Burke does not challenge readers to evaluate their own views about the
issue, and thus the book adds little to the fair representation
debate.
This is a pity. Burke obviously has read widely and thought deeply
about the redistricting cases. One cannot help but conclude that, if he
so chose, Burke could have constructed a rigorous theory of fair
representation that would at least challenge readers to think harder
about their own conceptions on equality and racial gerrymandering.
Charles Crueger, U.W. 1997, is a
trial attorney at the U.S. Department of Justice in Washington,
D.C.
Stewards of Democracy:
Law as a Public Profession
By Paul D. Carrington
(Boulder, CO: Westview Press, 1999).
306 pgs. $22.40.
Reviewed by Kevin L. Keeler
Fans of the Warren court, particularly those who claim Justice
Brennan as one of their judicial heroes, will not like this book. Yet it
would be a mistake to conclude that Paul Carrington, a professor at Duke
University Law School, is necessarily in disagreement with many of the
substantive values that Brennan and his colleagues imposed on the nation
by their decisions.
One of the main themes running through this book is that the
effective and lasting transformation of society can occur only with the
moral support of the people and an approach to law and legal
institutions that respects the "common thoughts of men." On this basis,
Carrington criticizes earlier U.S. Supreme Court decisions dismantling
legislation intended to protect workers' rights, and more recent
decisions such as those invalidating laws restricting abortion, flag
burning, and commercial advertising. He views such cases as instances of
the "national class" of meritocrats imposing their values on society by
constitutionalizing issues in order to bypass the democratic
process.
As an important example, Carrington cites the First Amendment cases
invalidating limits on campaign contributions and limiting defamation
claims by public persons. These cases combine to degrade the political
process by making political campaigns cost-prohibitive for many who are
interested in running for legislative or judicial office, and by
diminishing the ability of candidates and elected officials to maintain
their integrity in the face of disinformative, high-cost, high-tech
campaigns. This very result is then used by the national elite to
justify more court oversight in the political arena.
To illustrate a more democratic approach to law, the first half of
the book is a panegyric of the professional life of Thomas McIntyre
Cooley, a 19th century lawyer, law professor, Michigan Supreme Court
justice, and the founding chair of the Interstate Commerce Commission.
This is followed by shorter encomiums of Louis Brandeis, Ernst Freund,
Learned Hand, and Byron White. According to Carrington, all these
lawyers shared important moral traits. They were committed to the ideal
of popular self-government and distrusted government by a ruling elite;
they subordinated their personal idiosyncratic morality to values shared
by the public; they were independent and disinterested; they had the
patience to attend to factual details; and they had an eye for
compromise and accommodation.
Unfortunately, law schools do not foster these traits. Instead of
devoting their time to writing secondary source treatises useful to
practicing lawyers, full-time law professors pursue theoretical issues
having little relevance to practical affairs. Additionally, the cost of
a legal education is unnecessarily high, causing students to expect high
incomes to justify their investment in a law degree. Carrington suggests
that these problems could be remedied by reducing the required years of
study and hiring part-time faculty.
Whether or not one agrees with Carrington's diagnosis or treatment, I
recommend this book to anyone concerned about the legal profession. It
offers by way of example and analysis the conception of a model legal
career dedicated to serving the public. In this age of cynicism, when
many lawyers find themselves dissatisfied with the practice of law, such
a model is welcome.
Kevin L. Keeler, U.W. 1985, is a
shareholder in the Milwaukee office of Beck, Chaet, Molony &
Bamberger S.C.
Stopping the Train: The Landmark Victory Over
Same-Sex Sexual Harassment in the Workplace
By Edwin B. Martin Jr.
(Mt. Pleasant, S.C.: Corinthian Books, 2000).
173 pgs. $24.95.
Reviewed by Andrea F. Hoeschen
Stopping the Train is a personal account of same-sex sexual
harassment and the indignities of being a plaintiff in sexual harassment
litigation. The author had a well-established career with Norfolk
Southern Railroad when he was transferred from South Carolina to a
terminal in Birmingham, Ala. Once there, his coworkers, including his
immediate supervisor, greeted him with lewd comments and teasing. Over
the next few months, the teasing escalated to mind games, indecent
exposure, and groping. After becoming nearly incapacitated by stress and
panic attacks, Martin retained an attorney and filed suit under the
Federal Employers' Liability Act (FELA), Title VII of the Civil Rights
Act of 1964, and various state law tort theories.
This book is not a legal text. Martin writes simply about his
personal experience, explaining the legal technicalities only as
necessary to move the story forward. The account of his litigation will
be unsatisfying to attorneys who are looking for discussion of the
development of employment discrimination law, or the legal strategy
involved in a sexual harassment claim. There is no explanation, for
example, of the trial judge's reasons for dismissing the Title VII
claims on Norfolk Southern's pre-trial motion. There is likewise little
discussion of the significance of Oncale v. Sundowner Offshore
Services Inc., 523 U.S. 75 (1998), in which the U.S. Supreme Court
recognized a cause of action for same-sex sexual harassment, other than
to note that the decision precipitated the ultimate settlement of
Martin's suit. But Martin obviously did not set out to write a legal
treatise. He set out to explain the extreme emotional toll of being a
male sexual harassment victim in a male-dominated industry, and the
indignities that result from pursuing a sexual harassment claim to
trial.
Stopping the Train is an excellent weekend read for
employment discrimination attorneys who may find themselves wondering
why they chose their field, or those who have become detached from the
anxiety that discrimination litigants endure. The book also is
enlightening for potential litigants, both because it helps dispel a
victim's feelings of isolation and self-blame, and because it presents a
very real picture - or warning - of the potential frustrations and
rewards of litigation. As Martin observes, "There isn't an hour that
goes by on television, it seems, without a court-driven plot. I, like
thousands of other viewers, was duped into believing that what I saw on
television was an accurate depiction of the real thing. I was
wrong."
Andrea Friedenauer Hoeschen, Tulane
1995, practices labor and employment law with Previant, Goldberg,
Uelmen, Gratz, Miller & Brueggeman S.C., Milwaukee.
Wisconsin
Lawyer
