Wisconsin Lawyer
Vol. 78, No. 9, September 2005

Book Reviews

• Wisconsin Insurance Law
• Does God Belong in Public Schools?
• Advance Health Care Directives: A Handbook for Professionals
• Kohler: A Political Biography of Walter J. Kohler Jr.
• It's Legal, but It Ain't Right: Harmful Social Consequences of Legal Industries

• To review a book
  

Reviewed by David Sparr

I just finished my "best read" of the month! A new novel, you say? Perhaps the latest legal thriller from Turow, Grisham, DeMille, or Patterson? No, it is an insurance book, and no, it wasn't what I read when I was trying to get to sleep. Arnie Anderson's latest update of Wisconsin Insurance Law is a wonderful, indispensable resource for those who do personal-injury plaintiff or defense work, or for any lawyer who has a question about auto, fire, or general liability policies or coverage. This two-volume set will save you much time: it is well organized by topic and type of insurance policy and has a great index and table of cases. Anderson provides us with a primer on how to read and interpret insurance contracts.

This is an exhaustive work. Anderson discusses a multitude of subjects, including coverage issues and exclusions, duties of the insured when buying and responsibilities of the agent and the insurance company when selling coverage and when reporting and handling claims, uninsured and underinsured motorist (UM/UIM) coverage and issues, general liability, fire, and auto policies, and subrogation, to name just a few. He provides a nice discussion and summary of the case law in the UM/UIM section both before and after the 1995 anti-stacking legislation and does a nice job making sense out of the cases in this complicated area of the law.

As he discusses each topic, Anderson provides an analysis of case law combined with his own opinions on what the courts did correctly or not in applying prior case law. In the first party claims section, for example, the author discusses court decisions that appear to have intermingled and obscured the concepts of first- and third-party bad faith. Anderson discusses the law and then provides practical solutions, such as in the subrogation area, in which he answers the question of how to proceed when an injured party and the tortfeasor's insurer want to settle a claim, and there are subrogation claims. Having practiced in the plaintiff personal-injury field for nearly 30 years, I find that I can't agree with everything the author says, especially in this subrogation section, in which one of the cases cited was handled by me at the trial court level. My reading of the subrogation case law suggests that in most, if not all such cases, the subrogated carrier must reduce its recovery in recognition of attorney fees and expenses incurred in recovery from the at-fault party. Anderson disagrees.

The author has a sense of humor as he treats subjects that are sometimes complex and contradictory. For example, in Chapter 11, where he discusses "other insurance, excess and escape" provisions, Anderson describes the decisions as "hair splitting and nitpicking elevated to an art form."

This is a great set of books - you need it to improve your knowledge and ability to properly represent your clients.

Does God Belong in Public Schools?

By Kent Greenawalt (Princeton, NJ: Princeton Univ. Press, 2005). 296 pgs. $29.95. Order, www.pupress.princeton.edu.

Reviewed by Jeffrey P. Kippa

The chapter in this book entitled "Teaching Natural Science" could be taken out and used as the basis for a persuasive piece entitled "Why Creationism Does Not Belong in Public Schools." Less legal treatise and more op-ed.

This book does not, though, claim to be a legal treatise. It does state very clearly in the introduction that it is based on the "central principle that public schools should not teach religious views as true." Author Kent Greenawalt concludes that paragraph with "this study helps show why that assumption [that religion is not the same as other public school subjects] has arisen and why it should continue." The author spends the remaining 178 pages explaining why that assumption should continue, and he does so in a clear and persuasive manner.

At times, this book seems to read like a "how-to" guide for public school administrators. That is not meant to detract from the author's writing skills. He demonstrates his breadth of knowledge in a concise and easy-to-read fashion. Always up front about his opinion, the author gives equal treatment to opposing views. The author effectively highlights the current state of the law, while making the book accessible to the layperson.

Following a brief history of public schools in the United States, the book progressively moves from topics that courts have clearly decided to those that will require further clarification. Issues such as prayer and Bible-reading within the schools, while controversial, have been clearly ruled on. The use of classrooms for extracurricular religious club meetings has been dealt with by the courts and the legislature. The role that religion can or should play in public school curriculums is much cloudier. That issue also makes for the bulk of this text. The book concludes with a section on the rights of students within the classroom.

Advance Health Care Directives: A Handbook for Professionals

By Carol Krohm, M.D. & Scott Summers, J.D. (Chicago, IL: ABA Law Practice Management Section, 2002). 374 pgs., CD-ROM. $99.95. Order, (800) 285-2221.

Reviewed by Ellen J. Henningsen

Advance Health Care Directives: A Handbook for Professionals is readable, comprehensive, thoughtful, and thought-provoking. Written by an attorney and a physician, it probes the important question of why such important documents are essentially a failure. Only about 20 percent of the adult population bothers to complete them, and most agents don't even follow the wishes of their principals. The authors encourage both attorneys and physicians to take a more active role in promoting their completion. Attorneys are urged to take advantage of society's aversion to probate by suggesting that guardianship is "living probate," which can be avoided by completing power of attorney for health care documents.

Because the book is written for a multidisciplinary audience, some chapters may not be of interest to attorneys. The most useful chapters for attorneys are: Competence and Incompetence (Chapter 4); The Attorney Perspective (Chapter 7), which includes a helpful drafting checklist; The Health Care Provider Perspective (Chapter 8); Involvement of Clergy and Spiritual Advisors (Chapter 9); and Special Circumstances (Chapter 11). The appendix is a valuable resource, containing pertinent federal, uniform, and state statutes; sample religious directives; citations for state advance directive statutes; and sample letters. A CD-ROM includes statutory forms from each state.

The book could have been improved by a discussion of an attorney's ethical obligation to clearly identify who is the client and to take direction only from the client, including separating the client from adult children or other relatives or caregivers. The ABA's pamphlet entitled "Why Am I Sitting in the Waiting Room?" would have been a valuable addition to the appendix and the CD-ROM.

With the Terri Schiavo case still fresh in our minds, this book is an excellent resource for attorneys and other professionals who wish to encourage others to complete powers of attorney for health care.

Kohler: A Political Biography of Walter J. Kohler Jr.

By Gregory A. Fossedal (Piscataway, NJ: Transaction Publishers, Rutgers Univ., 2003). 146 pgs. $34.95.

Reviewed by James J. Casey Jr.

The Wisconsin governorship of Republican Walter J. Kohler Jr., from 1951 - 57, like the mayoralty of Frank P. Zeidler in Milwaukee during this same period (1948-60), has not received much attention from scholars. Kohler: A Political Biography of Walter J. Kohler Jr. helps correct this neglect. This book is an excellent read because it covers the various dimensions of Kohler's administration and helps illustrate how history is still germane today.

Led off by a thought-provoking foreword by William Proxmire and an introduction by Tommy Thompson, Fossedal treats the reader to history and public policy lessons. The book amply illustrates that personality, persuasion, and public policy are equally important when it comes to executive leadership in government.

The book has equally informative chapters on Kohler's upbringing, education, and political inculcation, not to mention his role in the 1954 Kohler Company strike. Much more interesting from a public policy standpoint, however, are Kohler's policy preferences. By the book's end the reader comes to fully understand the impact of his initiatives.

The 1951 tax cut Kohler championed was the largest federal or state tax cut between the Coolidge and Kennedy administrations. November 1953 saw the creation of the Milwaukee County Expressway Commission. Kohler's initiatives to expand the highway system led to a 25 percent increase in Wisconsin highway miles between 1951 and 1957. This expansion led to his successful initiative to improve road safety in 1955. His 1955 push for greater coordination among state public universities ultimately led to the creation of the U.W. System.

Politically, the end of Kohler's governorship in early 1957 was followed by Democratic dominance in state politics until the election of Tommy Thompson as governor. Kohler's 1958 special election loss to William Proxmire to fill the seat vacated by the death of U.S. Sen. Joseph McCarthy ended Kohler's political career but not his effectiveness in forming public policy.

The book is an essential read for historians, political junkies, and the general public. And it would not hurt high school students to read this book as a way to better understand Wisconsin's more recent political history.

It's Legal, but It Ain't Right: Harmful Social Consequences of Legal Industries

Nikos Passas & Neva Goodwin, Editors (Ann Arbor, MI: Univ. of Mich. Press, 2004). 279 pgs. $25.95. Order, www.press.umich.edu.

Reviewed by Joseph C. Mrazek

Despite the folksy title, this collection of 11 essays by professors and NGO (nongovernmental organization) activists is not a populist book. Part of a critical series entitled "Evolving Values for a Capitalist World," this book is an academic project in both the positive and the pejorative senses.

In their introduction, the editors polemicize against a global economic-legal system in which "the rich get richer and the poor get prison." Several of the pieces have scholarly heft, such as Loretta Bondi's "Externalities of the Arms Trade" and John Warren Kindt's "The Costs of Legalized Gambling: An Economic Approach." Reading most of the essays is like attending a moderately interesting leftist lecture.

Other essays verge on snarky propaganda, such as "Titans of the Enron Economy: Ten Habits of Highly Defective Corporations," which opens with a sort of manifesto: "The pivotal lessons of the Enron debacle do not stem from any criminal wrongdoing. Most of the maneuvers leading to Enron's meltdown not only are legal but are widely practiced." That essay goes on to offer a utopian 10-point "rehabilitation program" for publicly traded companies, urging rapacious executives to get the religion of corporate responsibility.

The same grim message recurs: certain industries and corporate actors are harmful to the public; they must either be eliminated or be put on a tight leash by some benevolent regulator. Of course legalized gambling, tobacco use, and processed foods are bad for us. Pesticides and firearms are deadly, and pharmaceutical companies have surely bought favorable legislation. The illicit trade in antiquities, also covered here, seems harmless by comparison. Sadly, neoliberal free trade may actually create more economic and environmental problems than it solves.

But unhealthy products and antisocial practices by greedy players will always plague free markets. These authors do offer useful suggestions on how consumers - and attorneys - can fight the tide of big-business-related corruption and environmental spoliation. But their ideas get pummeled by a flood of arcane language and finally drown in a sea of footnotes.

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