Vol. 75, No. 6, June 2002

Book Reviews

• A Trial by Jury
• The Ten Biggest Legal Mistakes Women Can Make
• Code and Other Laws of Cyber Space
• The Price of Terror
• To Look Like America: Dismantling Barriers for Women and Minorities in Government

• To review a book

A Trial by Jury is not the story of a trial; it is the story of a jury. The case is not just any case; it is a murder case involving the death of a cross-dressing male prostitute. The author, D. Graham Burnett, was elected foreman of the jury. While he served on the jury, Burnett put aside his usual occupation as a fellow at the Center for Scholars and Writers at the New York Public Library.

This is one terrific book. The defendant, Monte Milcray, solicited a prostitute who he thought was a woman, but who he learned a bit too late was a man. A scuffle ensued and the prostitute ended up dead after receiving 20 some stab wounds. Milcray was charged with murder in the case People of New York v. Monte Virginia Milcray. He claimed self-defense.

Once you get beyond the tabloid facts, you realize that the focus of the book is how the author as juror viewed the trial and what animated the deliberations in the jury room. The author offers his candid thoughts on the lawyers, the witnesses, and the judge and how the behavior of each influenced his view of the case. He puts all this information together in a very thoughtful look at the jury process from the eyes of an accidental observer. Like many, Burnett wanted to avoid jury duty. But the jury process seemed almost transformative as Burnett describes how he and others on the jury become deeply interested in arriving at a just result.

The book is short at 182 pages. It moves right along and makes for a very interesting read. But there are lessons to be learned. Lawyers take note: jurors see through fake bravado; lawyer antics are silly; lots of evidence matters little if the points are not contested; badger witnesses at your peril; jurors notice everything; jurors take their charge very seriously, but they do get bored; and (gasp!) jurors don't think your case is nearly as interesting as you might think it is.

Many things we lawyers take for granted are utterly foreign to jurors. We ask them to do a job, but instruct them that they can't talk about the job in real time - they must wait for days and passively listen. Can you imagine a lawyer putting up with this? The author wonders why this makes sense; what other job requires one to sit back in silence while information is provided?

This book is for anyone interested in the jury process. True, it is only one book about one jury - and a criminal jury at that. But at $21 it is cheaper than a jury consultant. More important, how often do we get a window like this into the process?

This is the type of book that general practice lawyers may want to keep on hand as a resource for their female clients. Lawyers might use this book to help educate their clients before the damage - graphically described by the author - is done. However, unless marketed widely in lawyer circles, I fear too many readers will pick up this book after making all-too-common mistakes. The book is full of horror stories about too-trusting women being taken advantage of by, primarily, their husbands or business partners.

Barrett recommends simple and straightforward measures to prevent the disasters that befall women in modern- day America. Some of her most basic recommendations undoubtedly echo most lawyers' similar advice: 1) read documents before you sign them; 2) hire your own lawyer for business deals, prenuptial agreements, divorces, real estate transactions, estate planning, and so on; and 3) don't rely on cocktail party tips when doing your tax returns.

This book is not recommended for your more sophisticated business-persons. Still, the author's basic advice is sensible, useful, and reader-friendly. In addition, the author has chosen important, wide-ranging topics for discussion: entering into prenuptial agreements; protecting yourself during a marriage and at the time of divorce; starting and running a business by the books; tips for hiring and firing lawyers; dealing with tax problems; assuring proper legal title to real estate; and estate planning options and issues.

The author nicely mixes the hard-luck stories of "everyday people" with those of the more famous; for example, Doris Day (she trusted her ne'er-do-well husband far too much), Willie Nelson (he got into tax trouble by trusting his business manager too much), Leona Helmsley (she got herself into trouble by her over-reaching greed), and Doris Duke (the tobacco heiress's estate was fought over for years upon her death). Each story teaches a lesson about how informed decisions and planning usually can prevent later legal entanglements.

Generally, the book presents good practical reading for all women. Obviously, it is one-sided - suggesting that primarily it is the women who are duped. However, both genders can be equally guilty of deceiving and manipulating their significant others, be it a spouse, romantic partner, or business partner. And, both genders may benefit from the book's information.

Code and Other Laws of Cyberspace advances a dynamic, turn-of-the-century assessment of the controls and values that shape the Internet. Lawrence Lessig, widely known for his role as the special master appointed early in the Microsoft antitrust case, critiques the structural design options for the emerging commercial uses of the Internet. As a constitutional scholar and cyberpatriot, Lessig issues a public call-to-action to protect the core values of free speech and privacy in cyberspace.

Code's rhetoric and framework synthesize the work of the first- and second-generation Internet theorists. To oversimplify, these two generations detailed the detriments of a world in which, on the one hand, a spying and invasive government regulates software code, and on the other hand, open source software has the capacity to disable the governmental role in protecting liberty.

The author sharply departs from the prima genitur cybertheorists who categorically shun any government regulation of the Internet. Lessig argues that without regulation, the Internet will become "a perfect tool of control" by commercial software programmers, and the democratic values of free speech, privacy, autonomy, and access to information will be undercut.

Code discusses how the law deals with conflicts between the norms of the virtual community and the rules of the real-space community. For example, Code's introductory chapter recalls the government's strict application of the Computer Fraud and Abuse Act of 1986 to make the snooping behavior of hackers a crime and the Internet a place where commerce could survive. Similarly, the book examines how the law may provide too great a protection when applied in cyberspace, as with regulating access to and use of copyrighted materials. Code takes aim at the issue of how sovereignty in cyberspace competes with real-space government sovereigns. Lessig predicts that as sovereign entities come to realize that the rules and norms of outside jurisdictions will affect the behavior of citizens inside their own geographic territories, they will struggle as the U.S. has done with the hackers.

Within the context of constitutional limits on government regulation, Code examines how laws, social norms, the market, and physical architecture can affect behaviors in real space and in cyberspace. To illustrate, the author describes the impact that smoking restrictions have on the hypothetical life of a "pathetic dot," then cycles through a series of examples of direct and indirect regulatory constraints, including architectural accommodations under the Americans with Disabilities Act, seatbelt requirements, illicit drug prohibitions, and case law on abortion and low-level radioactive waste.

The book's thesis that "code is law" is too susceptible of interpretation. Lessig uses the term "code" to mean the software and hardware that make up the Internet. For a computer scientist, code is law. Software code, however, is not by itself "law," any more than the operation your computer performs before crashing is "illegal" as the Windows error message warns. Further, the phrase "code is law" is intertwined with usages of "code" throughout the book to denote not only law and regulation in the traditional sense, but also software and social norms, which do not carry the force of law. The interpretation that the Internet's software shapes our behavior with as much force as law may best resolve the dilemma.

Code traces the evolution of the open and unsecured protocols that supported the Internet's original use for research, to the current "architecture of authentication" that enables an infrastructure of security controls in commercial transactions. The author evaluates the impact of online monitoring and filtering controls - including passwords, cookie file deposits, and digital IDs - and concludes that public choices should determine the appropriate constraints on the power to create and alter code.

Code generally endorses the types of constraints on government that encryption and an open Internet architecture can provide in a system of checks and balances. Given the present mix of privately crafted software code, our corrupted legislative process, and the formalism in American law, however, the author argues that an Internet designed to protect the values of free speech, privacy, due process, and equality is not possible without the opportunity for debate and decision that is required of public regulation.

The lessons learned from the terrorist bomb planted on Pan Am Flight 103 are immeasurable, and 270 lives lost are remembered each day by the survivors. That is the message of the authors in this gripping account, The Price of Terror: The History-Making Struggle for Justice After Pan Am 103.

In the first chapter, the reader is drawn immediately into the horrific events on this American airplane. With detailed accounts of what probably occurred following the explosion, very little is left for the reader to imagine. The following chapters describe America's failure to take military action against the terrorists - Libyan nationals. The U.S. pursued economic sanctions against Libya instead to avoid rocking the world-wide political boat. Feeling that their own country did not act either reasonably or responsibly, the victims' families took legal and political matters into their own hands.

To start, the authors explain why and how the victims' families sought legal redress against Pan Am for the failure to provide adequate safety. Then they give detailed accounts of the legal process and the personnel involved in the quagmire of the judicial and political systems. Last, they discuss the trial of the two Libyan terrorists in Scotland for their direct criminal activity. Throughout the book, the authors also acknowledge the parallels between the events of Pan Am 103 and the events in America on Sept. 11, 2001. The culmination of the victim families' energies ultimately leads to an amendment in the Foreign Sovereign Immunities Act that allows Americans to sue in U.S. courts foreign countries for terrorist activity.

One of the strongest parts of this book is the contrast the authors make between the lawsuit against Pan Am 103, which was for monetary relief, and the legal suit against Libya, which was for "justice." Note that the authors assume the reader's familiarity with legal terms and procedure. In addition, the reader may get bogged down by the many people named in the book and the convoluted course of events. However, the book reads more like a novel than a book of nonfiction and is compelling enough to hold the reader's interest.

Partially in light of America's current position on terrorism, it is interesting to read about the choices America made with Pan Am 103. The timeliness and gravity of The Price of Terror make this an excellent reader's choice for serious and reflective reading.

To Look Like America: Dismantling Barriers for Women and Minorities in Government

By Katherine C. Naff (Boulder, CO: Westview Press, 2001). 284 pgs. $25. Order, (800) 386-5656.

Reviewed by Laura C. Suess

In To Look Like America: Dismantling Barriers for Women and Minorities in Government, Katherine Naff, an assistant professor and senior faculty researcher at San Francisco State University, purports to provide the missing research on whether women and people of color possess the same opportunities to participate in the higher levels of the federal government and engage in the policy making process as Euro-American males.

Here, the underlying assumption is that America is not primarily comprised of career-oriented Euro-American males who are willing to work long hours, travel, and relocate geographically because they have a wife at home who can manage the household and children. Rather, it is that America's citizens are people of different racial, ethnic, and familial backgrounds who offer unique and complementary perspectives, and that the federal government should reflect the composition of its citizens in order to be responsive to their diverse needs. Naff examines whether the government does this, and if not, why not and what should be done about it.

The policy of achieving a representative democracy in the federal government - the nation's largest employer - was established in the Civil Service Reform Act of 1978 (CSRA). The rationale for achieving a representative bureaucracy is that by reflecting the nation's true demographic makeup, federal employees can understand and represent the values of the diverse public, thereby increasing the bureaucracy's effectiveness and legitimacy. Naff analyzed various data and determined the federal government is not representative in this sense.

Besides providing an overview of affirmative action and nondiscrimination policies, Naff identifies six barriers that impact the representation of women and people of color in the federal government: the macro-political environment (identity of president and appointees); micro-internal climate (lack of support by federal supervisors for representative democracy); glass ceilings; disparate impact of employment decisions on these groups; whether federal employees perceive they have been subjectively discriminated against; and sexual harassment. In separate chapters, the author addresses each obstacle and provides scientific analysis that documents the impact of each of these issues on the advancement of women and people of color in the federal government.

The biggest problem, according to the author, is that since 61 percent of the federal government's senior executives are Euro-American men, women and people of color are not adequately represented in these levels to effectively participate in the hiring, promotion, and policy decisions. Naff argues that Euro-American males, who hold pre-conceived ideas about individuals from a different race and/or gender, do not perceive that a representative democracy is important and make hiring and promotion decisions based on stereotypes of people different from them.

Naff explores different factors that influence decision-makers in evaluating candidates for employment or promotion. The factor having the greatest impact on supervisors' perceptions is their own race and/or gender.

Naff also discusses internal or subjective factors that perpetuate the federal government's failure to represent its citizens' diversity. Naff cites data that show people of color and women, who often are evaluated more harshly and receive lower-profile assignments, feel subjectively discriminated against. Females and/or employees of color who do not see others similar to themselves in their working environment may conclude that diversity is given a low priority at their agency and engage in self-limiting behavior by only working up to their supervisors' already low expectations.

Naff demonstrates that much remains to be done to accomplish a representative democracy in the federal government. She offers solutions, including a chapter devoted to emerging trends away from short-term, quota-based affirmative action programs and toward the long-term goal of achieving a truly diverse workforce that increases productivity, quality of the work environment, and responsiveness to the public. Examples of proven solutions include mentoring programs, diversity management initiatives, placing women and people of color in leadership roles, establishing and enforcing sexual harassment policies, and training to help employees recognize the relevance of diversity.

This is an interesting read; however, some of the tables are distracting and might be of limited use to readers who are not well versed in statistics. Though it did not include discussion of other groups such as persons with disabilities, Naff acknowledges that she limited her research to maintain a manageable project. Overall, by emphasizing that the goal of a representative democracy is not simply to meet quotas but to represent the public's needs and establish an environment in which all employees are valued, regardless of their social identity, Naff succeeds in providing analysis useful to state and local governments and the private sector.

Wisconsin Lawyer