Book Reviews
This Month's Featured Selections
We the Jury: The Impact of Jurors on Our Basic
Freedoms
By Godfrey D. Lehman (Amherst, NY:
Prometheus Books, 1997).
369 pgs. Hard.
$26.95.
Reviewed by Nathaniel Cade Jr.
We the Jury contains 12 chapters that convey an unknown
history as to the formation and implementation of the jury as we know it
and how juries have been at the forefront of protecting human liberty.
Lehman uses 12 chapters to symbolize the 12 jurors that comprise the
typical jury.
In the forward, Lehman bemoans and compares the O.J. Simpson juries
and their decisions. The rest of his book heads downhill because of
Lehman's apparent one-sided blessing of the jury system. For example,
his opening chapter deals with what he calls the "Father of Our
Country." He labels Edward Bushell the "Father of Our Country" because
Bushell allegedly stood up to the lords of England when he was selected
to serve on a criminal jury. One of the defendants in the criminal trial
was William Penn (for whom Pennsylvania was named and one of this
country's most famous Colonists). Penn was arrested with William Mead
for practicing and preaching their Quaker religion.
Lehman relies upon bits and pieces of historical information to weave
a tale of how Bushell saved Penn's life by refusing to allow the jury to
convict Penn or Mead. Although it reads wonderfully, the problem with
this style is that much of Lehman's weaving is his own interpretation of
what may have occurred during the trial, because only some of the words
spoken at Penn's trial were transcribed by the court scriveners.
In other chapters, Lehman addresses freedom of the press, rights of
minorities, and women's suffrage. The book fails to relate many of the
problems a jury can create, such as higher death sentence rates for
minorities convicted of capital crimes.
I found this to be an intriguing and easy read. Readers who fancy
themselves legal history buffs will find pleasure in Lehman's work. Just
keep in mind that many of the more intriguing and interesting points
Lehman relates are fictional.
The Complete Employee Handbook Policies
Manual for Law Firms
Edited by Lisa Walker-Johnson, Linda M. Thomas, and Susan D.
Sjostrom (Newtown Square, PA: Altman Weil Pensa Inc., 1997). Binder.
$225.
To order, call (610) 359-9900.
Reviewed by Theresa L. Schulz
Publisher Altman Weil Pensa Inc., a consulting firm to the legal
profession, succeeds with this book in providing the first comprehensive
and legally sufficient resource for law firms to develop or update
employee handbook policy manuals. There is sure to be a need for this
type of resource, given the growing body of law nationwide in which
courts have held that employee handbook policy manuals may alter the
presumptive at-will status of an employment relationship.
The book provides a comprehensive, up-to-date model employee
handbook, addressing more than 75 topics specifically tailored to law
firm employers. The model handbook section addresses general
organization information, employment relationship details, personnel
record policies, employee benefit programs, timekeeping and payroll
issues, work conditions and hours, leaves of absence, employee conduct
and disciplinary action, and other miscellaneous issues. The publishers
include software on both CD and 3.5" floppy disks that quickly and
easily enable law firms to customize their own employee handbook policy
manuals.
This book also provides approximately 20 employment policy-related
forms that can be adapted quickly for use by law firm personnel
departments. Sample forms include employment applications, reference
release forms, new employee orientation checklists, offer letters,
requests for leave of absence forms, employee exit interview forms, and
termination notices. These forms also are included in the software,
making it quite easy to modify them for a particular firm's needs.
Law firms nationwide that need to create a careful yet comprehensive
employee handbook, but don't have the time to draft one from scratch,
need this resource.
The Securities Enforcement Manual: Tactics
and Strategies
By Kirkpatrick & Lockhart LLP, Edited by Richard M.
Phillips (Chicago, IL: The ABA Business Law Section, 1997).
533 Pgs.
$149.
Reviewed by Terry F. Peppard
This text was assembled by a team of 15 members of the securities
group of the venerable Kirkpatrick & Lockhart LLP. The team was led
by Richard M. Phillips, chair of the firm's securities group, and long
one of the leading lights of federal securities practice.
The contributors claim more than 150 years' experience in the
esoteric world of securities law enforcement, and it shows in the
near-exhaustive treatment of practice tips and tricks given in 12
chapters covering both the domestic and international dimensions of
federal and state securities laws and regulations of the United
States.
Considering the topic, the text is remarkably readable. The authors
have taken pains to target the uninitiated as well as the seasoned
veteran. There are just enough footnotes to reflect a creditable level
of scholarship and to focus the reader's further research.
If there is a glaring omission in this volume, it's the absence of a
topical index. The complexity of the subject certainly warrants one, and
the reader who seeks only reference to this or that arcane subtopic,
such as variations in the scope of the subpoena powers among the SEC,
the state securities administrators, and the federal self-regulatory
organizations, will quickly note the oversight.
Also, presumably as a result of competitive considerations, the book
is a bit light on tips for creative alternatives to the traditional
settlement options preferred by the regulatory community. Mavens of the
field likewise will detect a superficial handling of the impact of the
National Securities Markets Improvement Act of 1996 on state securities
law enforcement powers and related issues of federal-state
relations.
Still, this title is a worthy addition to the library of any lawyer
who, even if only occasionally, takes up the defense of a securities law
enforcement case.
The Gallows in the
Grove: Civil Society in American Law
By George W. Liebmann (Westport, CT: Praeger Publishers,
1997).
264 pgs.
$59.95.
Reviewed by Timothy J. McAllister
Centered around the concept of a purported deviation from the
constitutionally established separation of powers and the concurrent
dishevelment of American society, George W. Liebmann's The Gallows
in the Grove: Civil Society in American Law, covers a great deal of
ground. A multitude of issues is discussed with an admittedly
conservative slant.
The text's core is chapter three, "Delegation to Private Parties in
American Constitutional Law," which was partially published in 1965 in
the Indiana Law Journal (including 340 of the total of 611
chapter ending references). Liebmann expands the concept of the
abdication of legislative duties from the electorate to the functional
interpretation of the judiciary in implementing law, to further cover
legislative and judicial abdication of their duties to private sector
entities who create "law" through rules and standards that are being
upheld.
Liebmann's arguments concerning the distortion of legislation through
judicial review are sound, as is his questioning of the constitutional
validity of the private sector "law"-making through rules enactment and
enforcement by the public sector (as long as the "law" created by
delegated private authorities remains within the bounds of the
judicially approved frame).
To restore balance, Liebmann recommends a return to "judicial
modesty" and restraint. Reducing the availability of federally funded
legal services is suggested as a means to combat judicial oversight,
particularly in the area of administrative law for which Liebmann
proposes "appropriately trained laymen, including citizen volunteers,"
perform the tasks previously performed by lawyers. Liebmann's chapter on
"Lawyers and the Poor," which has no specific chapter references, can be
summed up by the statement that economically disadvantaged people don't
need lawyers - they need to form "passive" political organizations.
Liebmann advocates having citizen volunteers supervise convicted
offenders and paroling offenders to the custody of their "workplace
organizations" as a way to reduce the number of parole agents and get
the community involved in law enforcement. He also advocates combating
the "evils that flow from widespread gun ownership" through the use of
"milder measures, which would deny the right to ownership to those not
subjecting themselves to a training course, with periodic refreshments,
in firearm safety, in self-defense (including alternatives to firearm
use), and in first aid emergency response." As a professional working in
the field of corrections, I fail to envision crime rates plummeting due
to the adoption of these measures.
Communitarian ideology resounds in Liebmann's advocation of reducing
class action suits used for the expansion of rights, and in the emphasis
on volunteerism. The repeal of zoning restrictions to form "[t]he
woonerf, or residential street-government regime, ... a Dutch innovation
of the 1970s" is pushed as a way to restore community values. The
woonerf consists of private streets and expanded legal property rights
of the owners, but utopian thoughts aside, sounds like a self-serving
gated community for the established wealthy.
Completely lacking in graphics and making the reader wonder if
Preager Publishers uses a spell-check or proofreader, The Gallows in
the Grove is an unbalanced book in which some chapters are
obsessively referenced while the majority have few to no specific
chapter references to document or substantiate statements made. There is
plenty of food for thought and cocktail party conversation could rage in
debate over the ideas and opinions expounded. Serious national debate or
the adoption of the advocated reforms is doubtful, as it should be.
Solving the Puzzle of Interest Group
Litigation
By Andrew Jay Koshner (Westport, CT: Greenwood Publishing
Group, 1998).
144 pgs.
$52.95.
Reviewed by Michael P. Matthews
From its title, one may expect this book to be a treatise or handbook
on difficult issues facing interest group litigators, such as thorny
problems of standing or selecting proper plaintiffs and issues to
sponsor. Instead, the "puzzle" is an academic study of why interest
groups' filings of amicus curiae briefs with the U.S. Supreme Court have
increased over the past 50 years.
The author notes that others have proposed and extensively researched
possible answers to this question, but he contends that his book "brings
everything together" and examines the aggregate phenomenon. However, one
may question the wisdom of trying to describe and assess the 16 or so
previously proposed theories in just 105 pages (not including
appendices).
The author's summary of others' theses, presented in about seven
pages, is the book's most valuable part for those who are intellectually
interested in the question presented (the book is of no use to
practitioners, even those who represent interest groups, as it
completely lacks practical information). The rest of the book is the
author's assessment of each theory, in which he applies only his own
opinion and the results of his deficient survey of interest groups. For
example, he argues that liberalized standing rules have not caused the
increase in interest group litigation because only 13 percent of groups
surveyed said that standing rules affected their decision to litigate.
He then reveals that "the 13 percent represents only one group because
only eight responded to this question," even though perhaps thousands of
interest groups litigate. He argues that his survey is "very compelling
evidence," when in fact its minuscule sample size (only 26 groups
responded to the survey) renders it worthless.
The author concludes that his book did not answer the "big question"
of the "implications" of the increase in interest group litigation. Or,
in other words, who cares?
The International Guide to Nonprofit
Law
By Lester M. Salamon (New York, NY: Wiley Publishers,
1997).
400 pgs.
$125.
Reviewed by Richard Berkley
For academics who have research interests in the international role
of nongovernmental nonprofit organizations, Lester Salamon's treatise
fills a significant gap in the literature. For the lawyer involved with
counseling nonprofit organizations or advising on gifts to nonprofits,
the book's utility has a different basis.
Based on the Johns Hopkins Comparative Nonprofit Sector Project's
legal field guides, this book examines the basic law of nonprofit
organizations in 22 countries. Consequently, it provides a point of
departure from which lawyers can begin detailed studies of the relevant
national legal systems. It also serves lawyers by providing a sample of
how legal institutions - from developed, developing, and former
Soviet-bloc countries - treat nonprofit organizations.
The nonprofit sector, long an important facet of life in the United
States, has been growing in international importance because of
increased funding by and interaction with transnational corporations,
governments, and the United Nations. In addition, national nonprofit
organizations have been increasingly involved in seeking multinational
or regional solutions to common problems or national policy conflicts.
Thus, it behooves lawyers to be conversant with the laws surrounding
nonprofit activity in a variety of countries. Despite the growing
importance of the nonprofit sector, however, little systematic research
had been done in this area. Thus, a lawyer or an academic would have an
onerous task finding and analyzing all the relevant principles,
statutes, and caselaw necessary to provide knowledgeable counsel to a
client.
Salamon organizes the book's analysis around 10 central issues,
including: the legal context within which the organizations operate,
organizational eligibility for nonprofit status, forms of governance,
tax treatment, personal benefit restrictions, obligations to the public,
allowable business activity, limitations on funding, limitations on
political activity, and impending legal developments. Then, each
country-oriented chapter analyzes the relevant national legislation in
the context of these questions. For example, charitable contributions by
American corporations are subject to IRC § 170(c)(2)(A), which
creates the "domestic organization restriction" (DOR) on deductibility.
Consequently, unless the donee entity was created or organized under
U.S. laws, contributions generally are not deductible. However, as
Salamon's book notes in its analysis of Canadian, Israeli, and Mexican
charity law (chapters 6, 13 and 16, respectively), U.S. tax treaties
with these countries alter the application of the DOR in some
circumstances.
The book ends with three useful sections for practitioners and
academics. First, Salamon reprints some extracts from the World Bank's
"Handbook on Good Practices for Laws Relating to NGOs," which is a
resource for drafting and debating new nonprofit legislation around the
world. Second, draft "guidelines" for government treatment of the
nonprofit sector and for the internal operations of nonprofit
organizations is included. The guidelines were assembled by a
convocation of experts in Johns Hopkins' International Fellows in
Philanthropy Program who met at a series of international conferences in
the early 1990s. Although they are not a set of model rules, and the
Fellows are not analogous to the Commissioners drafting model uniform
state laws, the "guidelines" are a first effort of its sort well worth
keeping under observation. Third, Salamon's wide-ranging, current, and
multilingual bibliography is a useful tool for the researcher of
international nonprofit law.
Wisconsin Lawyer
