Wisconsin Lawyer
Vol. 80, No. 4, April 2007
Religion and the Constitution: Free Exercise and Fairness
By Kent Greenawalt (Princeton, NJ: Princeton Univ. Press, 2006). 480 pgs. $39.50. Order, (609) 258-5714.
Reviewed by Brian G. Nuedling
Though religious affiliation is difficult to quantify, polling data typically indicate that almost 80% of American adults identify themselves as adherents of a specific religion. Such an overwhelming seeming agreement on an issue, rarely otherwise seen, might arguably elevate religion to the status of common denominator. But as Kent Greenawalt makes clear in Religion and the Constitution, Free Exercise and Fairness, religion is, in one sense, less a commonality than a clash of divergent principles, which transform the membership equation from one of simple addition and subtraction into something more closely resembling long division.
But this first of two volumes (the second will explore establishment issues) is not intended as a treatise about the oftentimes polarizing nature of incompatible religious attitudes or beliefs. Rather, Greenawalt attempts to prove that it is possible to practice what is preached in a secular society that typically prefers conformity if given the choice. While not suggesting that the exceptions should be the rule, Greenawalt nonetheless posits that the Constitution's free exercise clause generally makes room for exemptions from certain laws, even on issues as thorny as the religious use of hallucinatory drugs, compulsory education laws, and conscientious objection to military service. Noteworthy is Greenawalt's deference to the complexity of the questions and the acknowledgment that fraudulent professions of faith are cause for concern.
Greenawalt's mission of proposing a level playing field for religious expression is largely accomplished, though he concedes that no single standard of review will break every tie between accommodation and fairness. This concession, and his exhaustive text of historical review and contemporary perspective, are testament to the difficulty of merging the divine and temporal worlds. Greenawalt's comprehensive analysis is true to the nuances in the subject matter. His next calling, to similarly dissect the establishment clause, promises to offer more of the same.
Fostering Dialogue Across Divides: A Nuts and Bolts Guide from the Public Conversations Project
By Maggie Herzig and Laura Chasin (Watertown, MA: Public Conversations Project, 2006). 183 pgs. $21. Order, www.cafepress.com.
Reviewed by James Casey
Increasing polarization in public discourse is one of the most defining characteristics of modern society. Discussing public issues today is more about winning the debate than achieving understanding and advancing the public interest. Significant public issues are not being effectively addressed, and this increasing polarization must be halted if not reversed.
Fostering Dialogue Across Divides: A Nuts and Bolts Guide from the Public Conversations Project is a hands-on guide designed to foster truly effective dialogue about controversial public issues. Such dialogue takes place in a group, the size of which depends on the circumstances. It is hoped that trusting and honest communication among group members will take place, resulting in greater understanding, even if opinions and judgments about the issue (for example, abortion, the Iraq War, or Jewish/Palestinian relations) don't change. This dialogue focuses on reaching understanding, not converting other people.
This method, pioneered by the Public Conversations Project in Watertown, Mass., is currently being used by the Frank Zeidler Center for Public Discussion in Milwaukee. The late Zeidler, mayor of Milwaukee from1948 to 1960, firmly believed in using dialogue to increase understanding between people holding diverse opinions on significant public issues.
Much of the Guide is in question and answer format, which makes it immediately useful. All aspects of the dialogue structure are outlined, such as the need to reach group agreements at the commencement of dialogue and the need to craft appropriate and effective questions for group discussion.
The appendices are especially useful because they provide templates, examples, and additional information, as well as also reinforcing and illustrating the text.
Even though this methodology comes from the family therapy area, don't confuse this with being an exercise in therapy. The authors believe that public dialogue on contentious issues must be informed dialogue. The intellectual component is as important as the act of expression.
The Guide is useful and unique and makes an excellent contribution to advancing public discourse - one group at a time.
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Art of the Steal
By Christopher Mason (New York, NY: G.P. Putnam's Sons, 2004). 288 pgs. $15. Order, us.penguingroup.com.
Reviewed by David L. Loeffler
"Those charged today were engaged in classic cartel behavior. Price fixing, pure and simple."
So declared Douglas Melamed, then deputy attorney general for the U.S. Department of Justice antitrust division, in October 2000. The occasion for his remarks was the acceptance by a federal district court of the guilty pleas of Sotheby Holdings Inc. and its chief executive officer, Diana Brooks, to one count of conspiracy with Christie's International to fix the commissions charged to sellers of fine art who consigned those properties to the firms for sale at auction.
That the Sotheby's/Christie's relationship over some seven years was dramatically more complex (and interesting) than Melamed's terse statement would imply, is the subject of Christopher Mason's entertaining book, The Art of the Steal.
Mason is a freelance writer and art critic. The book rests on some 2,400 interviews with relevant players, including the individual defendants in the antitrust proceedings. Mason combines "recreations" of conversations, the various principals' subjective feelings about the matter at hand, creative "extrapolations" (Mason's word) from trial proceedings, and dollops of gossipy style crime reporting.
Notwithstanding these limitations on methodology, those who labor professionally in the vineyards of white collar crime, including criminal prosecution of alleged antitrust violations, will find much of value here - and, will, to boot, enjoy a good read about the lives of the international "rich and famous."
The indictments claimed that both firms' ranking executives, concerned about the pressure on profits imposed by price competition, agreed to establish a uniform, "nonnegotiable" seller's commission and stick with it, while limiting competition to nonprice considerations.
Did they do it? Let's jump to the end of the story. After a 16-day trial, followed by only 10 hours of jury deliberation, Alfred Taubman, the chairman and principal owner of Sotheby's, was found guilty of conspiring with Christie's chairman Anthony Tennant, to fix the seller's commission at a rate likely to optimize the profits of both firms, and directing Sotheby's CEO, Brooks, and Christie's CEO, Christopher Davidge, to work out the details and execute the agreement.
Antitrust practitioners will recognize features of the auction house market that create incentives to cartelize: oligopoly on the supply side; a relatively inelastic aggregate demand curve; constraints on entry; a high ratio of fixed to variable costs. But no sophisticated economic analysis was presented at trial. The economists came in only at the sentencing. Liability was established solely by the direct testimony of Brooks and Davidge and a cache of documents written in the hand of Taubman and Tennant and "authenticated" at trial by Davidge and Taubman's executive secretary.
Much of the trial was absorbed by conventional attacks on the credibility of Brooks and Davidge, who were portrayed as self-aggrandizing liars out to save their own skins. Taubman didn't take the stand. The jurors believed Brooks and Davidge - and the documents.
Antitrust litigation requires a grasp of the tenets of law and economics doctrines and a command of the rational choice theory on which those doctrines rest. But this book indicates that that kind of "rationality" is indeed "bounded." Mason reminds us to brush up on Shakespeare, with his tales of greed, passion, betrayal, and hubris.
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A Practical Guide to Leadership for Lawyers
By Herb Rubenstein (South Bend, IN: NITA, 2005). 168 pgs. $65. Order, (800) 225-6482.
Reviewed by Jean C. Baker
Herb Rubenstein, a lawyer and the founder and president of a Bethesda, Md., consulting firm, poses a challenge to attorneys: If the development of leadership is important, why have CLE providers paid so little attention to developing formal programs on the topic? The general public and clients look to lawyers to be leaders, and Rubenstein questions whether resources are available to guide lawyers in developing leadership skills. A Practical Guide to Leadership for Lawyers is Rubenstein's first step toward a remedy.
Is leadership important? Tom Clay, of Altman Weil Inc., a management consulting firm specializing in law firm governance issues, recently concluded from a survey of large firms that "effective leadership is the single most important element affecting success." Rubenstein would agree and offers as his thesis that "when lawyers begin to understand some of the many brands of leadership on the market today, lawyers will be able to improve their skills and aptitude as leaders; to provide better legal services; to create better law firms; to improve the associations, foundations, and organizations that support and are supported by the legal profession; and they will improve both the reputation of lawyers and the legal profession as a whole."
I'm convinced that the need for leadership training is great, but is this book effective in providing that training? My answer is both yes and no.
Rubenstein's book strives to acquaint lawyers with leadership literature and introduce lawyers to the various "brands" of leadership. It is the brands concept that gives me the most trouble. The book refers to various brands of leadership and has a lengthy appendix that defines 90 different types. It is not for the faint-hearted. "Alpha Male Leadership," understatedly characterized as "gender-oriented," shares the appendix with "Assigned Leadership" and "Authentic Leadership." And that is just the beginning of the alphabet!
The brands concept left me perplexed and a bit irritated. Are the different brands of leadership like different types of yoga - each a product of a different developmental path but all ultimately acceptable in some respects? Or are the different brands like different types of automobiles - some excellent and some lemons? After reading this book, I can't answer this question.
The book also contains many lists of leadership characteristics or behaviors. For example, one checklist contains 12 different strategic management characteristics of a successful leader. You'll learn that a successful leader is one who "correctly analyzes the potential risks of all decisions."
I don't think Wisconsin lawyers are lacking an understanding of the characteristics of leaders. If pressed, most Wisconsin lawyers would indicate that they understand that a successful leader correctly analyzes decisions. The issue for most Wisconsin lawyers would be how to successfully analyze decisions or where to balance that characteristic among all other characteristics of successful leaders.
As a pure description of leadership literature and discussion of leadership training in an abstract context, I think this book succeeds. However, I don't think that most Wisconsin lawyers are looking for this type of instruction - even alpha males!
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To review a book ...
The following books are available for review. Please request the book and writing guidelines from Karlé Lester at the State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158, (608) 250-6127. Reviewers may keep the book they review. Reviews are published in the order in which they are received.
Publications available for review:
- The Constructive Divorce Guidebook: Empowering Families to Reach Long-Term Positive Results, by Mark A. Chinn (Chicago, IL: ABA Family Law Section, 2007). 150 pgs.
- Cry Rape: The True Story of One Woman's Harrowing Quest for Justice, by Bill Lueders (Madison, WI: Terrace Books, U.W. Press, 2006). 275 pgs.
- Defending Federal Criminal Cases: Attacking the Government's Proof, by Diana D. Parker (New York, NY: Law Journal Press, 2006). 500 pgs.
- Executive Compensation and Related_Party Disclosure: SEC Rules and Explanation, by James Hamilton (Riverwoods, IL: CCH, 2006).193 pgs.
- Heuristics and the Law, edited by Gerd Gigerenzer & Christoph Engel (Cambridge, MA: The MIT Press, 2007). 485 pgs.
- The Law of Later-Life Health Care and Decision Making, by Lawrence A. Frolik (Chicago, IL: ABA Senior Lawyers Division, 2006). 298 pgs.
- Think Again! Innovative Approaches to the Business of Law, by Jeffrey L. Nischwitz (Chicago, IL: ABA Law Practice Management Section, 2007). 342 pgs.
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