Archive for April, 2012

Book Review – The Constitution Before the Judgment Seat: The Prehistory and Ratification of the American Constitution, 1787-1791

The Constitution Before the Judgment Seat: The Prehistory and Ratification of the American Constitution, 1787-1791, by Jürgen Heideking. Edited by John P. Kaminski and Richard Leffler. University of Virginia Press, 2012. Hardcover, 552 pages, $45.  

Originally published in 1988 as Die Verfassung vor dem Richterstuhl: Vorgeschichte und Ratifizierung der Amerikanischen Verfassung, 1787-1791.

Constitutional analysis often starts with asking what the founders thought. We are familiar with the Federalist Papers and the letters of well-known figures. Jürgen Heideking drew the title for this volume from such a letter. George Washington wrote to Henry Knox:  “The Constitution is now before the judgment seat.—It has, as was expected, its adversaries, and its supporters, which will preponderate is yet to be decided.” The Constitution Before the Judgment Seat seeks to capture the debate Washington acknowledges as the country moved from the Articles of Confederation to the Constitution and the Bill of Rights.  The outcome:  a meaty account of the ratification process from “political, intellectual, and cultural” perspectives, presenting a dynamic that stretches beyond the familiar source material. 

The University of Wisconsin’s Merrill Johnson had spearheaded the collection of primary documents resulting in Documentary History of the Ratification of the Constitution, a project taken over by the current editors, and Heideking was encouraged to examine these documents. Heideking’s analysis benefits from the breadth and depth of this source material, with citations spanning some 80 pages. He discusses not only a wide range of print media—primarily newspapers and pamphlets—but also private correspondence (like the letter from George Washington) to weave a multilayered synthesis of the competing ideas about government, the ways various circles carried out internal discussions and exerted influence over the debate, and the successes and failures of these ideas and methods in the public square. In exploring these layers, Heideking’s analysis draws together many motifs—the booming newspaper business, differing economic interests of rural and urban populations, and the developing rituals of patriotic celebration. In short, it is a very dense read.

Chapters help to channel the argument by focusing on one aspect of the ratification movement at a time, such as “Public Discourses and Private Correspondence” or “State Ratifying Conventions.” This format allows Heideking to thoroughly examine each distinct layer, but it hinders a full exploration of how these layers might interrelate. At just over 10 pages, the final chapter can but hint at Heideking’s thoughts on the overarching theory at work.

Ultimately, Heideking revels in how, despite the underlying complexities and adversarial environment, this country adopted a new governing document and generated a new political process in a peaceable manner. One of the concluding sentences sums up this view: “Far from being an obstacle to change, contrast, contradiction, and conflict proved a catalyst for intellectual achievement and were indispensable to the success of the movement.”

The astute reader will note a lengthy gap between the German edition and this one—24 years. Reviewers of the German text called for a condensed English version. Heideking himself undertook the translation, which was later refined, but he did so only after making “substantial deletions.” This authorial editing and translation process was cut short by Heideking’s death in a car accident in 2000. As the preface explains, the “manuscript lay dormant for several years,” and the publishing house changed hands, but the work of the editors, the German Historical Institute, and the University of Virginia Press completed what Heideking began. 

What did Heideking remove from the over 1,000-page original edition? The editors report that shortening and simplifying footnotes saved space; for example, more documents have been added to the Documentary History of the Ratification of the Constitution, whose abbreviated form dominates the notes. The original also apparently contained a number of images, while the English edition has none. I regret I am not fluent enough in German to offer a more complete account of the differences.

Even so, I can recommend this volume highly, especially for academic law libraries. Professor Christof Mauch, eulogizing his fellow German historian in 2000, called the original work “magisterial.”  The abbreviated English version remains a compelling account of a crucial period in American history, whose products, the Constitution and the Bill of Rights, remain subject to the complexities of which Heideking was so admiring.

 Susan Azyndar is a reference librarian at Ohio State University’s Moritz Law Library in Columbus.

Book Review – In Chambers: Stories of Supreme Court Law Clerks and Their Justices

In Chambers: Stories of Supreme Court Law Clerks and Their Justices, edited by Todd C. Peppers and Artemus Ward. University of Virginia Press, 2012. Hardcover, 472 pages. $34.95. ISBN 978-0813932651.

The U.S. Supreme Court is a highly clandestine body, so it is always intriguing to get a peek behind its protective shroud. Todd Peppers and Artemus Ward are veterans of this genre, each having written previous books about the role of law clerks in the operation of the Court. See Todd C. Peppers, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk (Stanford, California: Stanford University Press, 2006) and Artemus Ward and David L. Weiden, Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court (New York: New York University Press, 2006). Joining together, these authors have compiled a group of essays that provide “snapshots” of life as a judicial clerk spanning the history of what they dub the “Clerkship Institution.”  Recommended for academic and court libraries, the collection will be read with interest by court watchers as well as those with a casual interest in the inner workings of the Supreme Court.  

The essays are the work of a distinguished group of scholars and former law clerks. Following an introductory piece on the history of Supreme Court clerkships, the collection is divided into three time periods that highlight the changing role of law clerks as the demands on the Court have increased. The first includes essays on the institution’s “Origins,” beginning with the hiring of the first law clerk by Justice Horace Grey in 1882. Essays on the “Premodern” clerkship include tales of clerking and living with Justice Black and surviving Justice William O. Douglas’ “Boot Camp,” and there are chapters focusing on William Thaddeus Coleman Jr., the first African American Supreme Court clerk, and the first female clerk, Lucile Lomen. Finally, the “Modern” clerkship consists primarily of personal memoirs of clerking at the Court. In total, the essays give detailed accounts of the clerkship experience serving 19 different justices.

As the title suggests, In Chambers is a collection of stories about working as a judicial clerk. Unlike the editors’ earlier books, it is intended less as a scholarly endeavor (though most of the essays are well footnoted with primary source references), but instead an examination of the personal bonds formed between clerks and the justices they serve. And it is indeed the essays that share former clerks’ personal recollections, rather than those written based on diligent research, that are the most enlightening and enjoyable—notably Jesse Choper’s memories of clerking for Chief Justice Warren and Alan Dershowitz’ account of his clerkship for the “restless” Justice Arthur Golberg. Not surprisingly, these revealing discussions are limited to justices who are deceased. Only one essay is about a sitting justice, an essay by Peppers on Justice Ruth Bader Ginsberg based primarily on his interviews with the justice herself.     

Inevitably, grouping narratives about the clerkship experience leads to some repetition because all clerks, especially in more recent times, have very similar responsibilities. But beyond documenting those commonalities, the stories here provide unique glimpses of justices’ personalities, work styles, and private lives. They also make a valuable contribution to understanding the operation of the Court and the decision-making process of its justices.      

Debbie Shrager is a part-time reference librarian at George Mason University Law Library in Arlington, Virginia. 

Book Review – Special Education Advocacy

Special Education Advocacy, authored and edited by Ruth Colker and Julie K. Waterson. LexisNexis (2011), 746 pages. Softbound, $61.

Special education law is a demanding and growing area of law given the increased diagnoses of disabilities among children, in particular autism. My first introduction to this area of law was in 1997 while attending law school. I secured an internship at a public interest law organization, which led to employment upon graduation. In those early years, my chief legal resources were case files, colleagues, and self-help manuals written for parents of children with disabilities. I often felt like a lost attorney navigating a maze without a map or compass. Special Education Advocacy is an overdue and much needed resource to guide those in that maze.

Special Education Advocacy is a comprehensive resource for individuals representing children with disabilities in special education cases. Although self-described as a textbook, it is more like a combination treatise and practice guide written by several highly respected law school clinicians.

Special education law has a lengthy history consisting of case law and statutory authorities. Special Education Advocacy appropriately begins with a discussion of this history, leading to the present-day principal law governing this area—the Individuals with Disabilities Education Act of 1990 (IDEA). The chapters thereafter are arranged in a fairly chronological case-management order, from identifying the client to closing the case. Chapters 2, 3, and 4 cover the initial stages of a special education case, including the client interview, investigation process, requisite educational and medical documents, and requesting special education assessments and services. Chapter 5 is the heart of this resource, as true for all special education cases—the individualized education program (IEP). The chapter fully analyzes the IEP process, which includes identifying the players, preparing for the IEP meeting, listing the types of services available, and setting forth the necessary components of the IEP document to ensure IDEA compliance. Chapters 6, 7, and 8 cover particular groups of children, such as children under age three who are eligible for Early Intervention Services, students subject to discipline measures, and dependency children in welfare systems, for example. Chapters 9 and 10 cover dispute resolution and remedies available to students, parents, and attorneys. The last chapter provides guidance to those representing students in the delinquency system who require special education services.

The strengths of Special Education Advocacy come from the fact that it is written by practitioners who use their own experiences and real client cases to convey and illustrate the law, both substantive and procedural. Client cases serve as discussion points and demonstrate the various aspects of special education cases. Sample documents are plentiful: client letters, medical and psychology reports, an affidavit, IEP meeting minutes, IEPs, accommodation plans, a complaint, and a school suspension notice, for example. Templates and forms are also provided, including an intake form, retainer, request for services, referral letter, document requests, case chronology spreadsheet, and eligibility determinations. I was pleasantly surprised to find some nonlaw aids as well. For those advocates with little background in child development and assessments of psychology and educational attributes, the resource provides guidelines for normal development, an overview of the categories of disabilities, and a primer on evaluation instruments including an explanation of standard deviations and errors of measurement.

Supplementing the substance, practitioner tips, and samples within Special Education Advocacy are appendices of the text of IDEA, its regulations, and 13 seminal special education law cases. Its finding tools include a detailed table of contents with chapter outlines, a table of cases, a table of statutes, and an index.

Special Education Advocacy is best-suited for law students, clinical faculty, and attorneys interested in or practicing special education law, specifically in the representation of children with disabilities. Given my own experience practicing special education law, I can say with confidence that it is a must-have resource for both new and experienced advocates. Special Education Advocacy provides the map and compass to navigate this area of law competently and, most importantly, to best serve parents and children with disabilities.

Cindy Guyer (cguyer@law.usc.edu) is a research services librarian at the USC Gould School of Law in Los Angeles.

May Issue of Spectrum Available Online

The May issue of AALL Spectrum is now available online in a PDF format. This issue includes:

You can also see two spectacular views sent in by AALL members in Berkeley and New York, as well as read responses to this month’s Member to Member question: What question would you like to ask a political candidate?

Paper copies of the May issue were mailed to members today. Yours should arrive soon!

Book Review – Insider Trading (Corporate Law 1)

Insider Trading (Corporate Law 1), edited by Stephen M. Bainbridge. Jonathan R. Macey, series editor. Edward Elgar Publishing Ltd. Hardback, 740 pages, $365.

At more than 700 pages, Insider Trading can be described as being both dense in size and subject matter. UCLA Professor Stephen M. Bainbridge’s website describes him as being a prolific scholar who has written more than 75 articles with an emphasis on the law and economics of public corporations and who, as editor of Insider Trading, has compiled 15 articles on the subject from law reviews and other related sources. This volume is a part of Edward Elgar’s Corporate Law series, in which each volume features significant scholarly work in the field. Since most of the articles within can be found on typical legal databases (Lexis, Westlaw, HeinOnline, etc.), I recommend this book only for the truly hardcore lover of insider trading or perhaps those looking for articles that have been deemed seminal by an expert in the field. I cannot imagine the book being housed in any library other than academic. 

The book begins with Bainbridge’s introduction, in which he gives a short history of our courts’ views on insider trading and how those views have evolved throughout the years. Bainbridge states insider trading is among the most common violations of federal securities laws and notes it’s the only securities law that receives notice from nonlegal sectors of the public, citing Oliver Stone’s Wall Street as an example of how Hollywood has portrayed the crime. After briefly mentioning key court cases, he notes case law is extremely important in this field due to the lack of a definition of “insider trading” from either federal statutes or regulations. After this short 16-page introduction, the book is divided into six parts, with each part having two to four articles. 

I.   Origins and Development of Insider Trading Law

II.  The Supreme Court’s Decisions in Chiarella Dirks

III. The Misappropriation Theory Emerges

IV. Insider Trading Statutes

V.  Insider Trading Policy: The Manne Debate

VI. Insider Trading Policy: The Post-Manne Debate           

The articles within cover roughly a 40-year time period, and a cursory web search of some of the authors (Arthur Fleischer Jr., Donald C. Langevoort, and Henry G. Mann, among others) indicates they are recognized as serious scholars on the topic. The editor notes the articles within have been reproduced as originally published using facsimile reproduction, including footnotes and pagination to facilitate ease of reference. The book does not have an index or any appendices whatsoever, and after the last article (a photocopy of Bainbridge’s article titled “Insider Trading” from the Encyclopedia of Law and Economics, Volume III: The Regulation of Contracts, 2000, complete with page numbering from the original source), it ends abruptly.

As this book is the first in Edward Elgar’s new Corporate Law series, no indication is given as to whether further revisions will happen in the future. I imagine all that could be done, revision wise, to a collection of articles of this sort would be to include new seminal works as they are published. The preface of the book does indicate, however, that the next book in the series will be Mergers and the Market for Corporate Control, which will be edited by Fred S. McChesney.  

Lance Burke is access services librarian at Elon School of Law in Greensboro, North Carolina.

Book Review – O’Connor’s California Practice: Civil Pretrial 2011

O’Connor’s California Practice: Civil Pretrial 2011, by Julie M. Capell, David I. Levine, Michol O’Connor, and William R. Slomanson. Jones McClure Publishing, 2011 edition. Paperback, 1,400 pages. ISBN: 978-1-59839-100-8.

I usually avoid reading the advertisements for a book before I write a review. But in this case, I found the claims in the ad to be quite informative. Looking at each claim, here is what I determined.

Claim 1: Precise

The book includes detailed commentaries explaining each phase of pretrial litigation in Plain English. Virtually every sentence is backed by citations to relevant authority. More than 20,000 citations have been checked and rechecked by a small army of legal editors. Perhaps you will allow for some hyperbole with use of the term “army” since I’m not aware of any attacks by participles followed by counterattacks by the gerunds; minor quibbling aside, the ad appears quite accurate. I opened the book to a random page, page 531, Chapter 5, Section I, with the heading “Requests For Continuance Or Stay.” There follows about 12 pages of analysis for continuances and stays. The information is very detailed and written in clear, plain English. It cites plenty of California authority and even includes Practice Tips. After cruising the entire book searching for some aspect to critique, my only critical question is: Why didn’t I have this resource when I started practicing law? It is simply very well done and you can tell that a lot of people put a lot of thought into the content.

Claim 2: Portable

It is a single softbound volume packed with 1,400+ pages formatted with clearly worded tabs, page headings, systematic numbering, and a consistent structure to help the reader find material quickly. Someone spent a lot of time deciding format for the busy practitioner. Book format choices are naturally all compromises, but the net result allows a busy practitioner to find relevant material quickly and easily.

Claim 3: Practical

The book was designed for the busy practicing attorney. By now the claims get a bit redundant, and I would not limit the pitch to busy attorneys. Anyone who practices law needs an easy way to research procedural questions, and this publisher delivers that ability in one convenient source.

Recommendation:

I wholeheartedly recommend this book to any law firm that hires new lawyers on a regular basis and every law library open to attorneys and the public. Furthermore, I hope they publish a gift edition, perhaps a nice bound version suitable for giving to a freshly minted California attorney.

Steven R. Feller is law librarian at Alameda County Law Library’s Hayward Branch in Hayward, California.

Book Review – Advocacy to Zealousness: Learning Lawyering Skills from Classic Films

Advocacy to Zealousness: Learning Lawyering Skills from Classic Films, by Kelly Lynn Anders. Carolina Academic Press, 2012, 218 pages. Paperback, $28.00. ISBN 978-1594607981.

This book provides resources that lawyers interested in developing professional skills or professors teaching skills and ethics courses could draw on. It appeals to classic film buffs and is particularly appropriate for any law school library that maintains a film collection. It could easily form the basis for a film series organized by a law school or legal education entity. While there are other books that talk about the appearance of legal topics and lawyers in movies, this appears to be a unique addition to the literature.

The introduction focuses on the need for skills training in law school, contextualizing the discussion in the wake of the 2007 Carnegie Report and ongoing discussions in the legal community about the need to produce “practice ready” lawyers. This book provides an easy-to-implement approach to skills training through the use of films. While many professors in the legal academy and elsewhere often use film to illustrate key points of discussion, this book takes the somewhat unusual step of using exclusively older material (pre-1968, when the modern MPAA ratings system was implemented).

As implied by the title, each letter of the alphabet is attached to a skill, and a chapter is devoted to it. Perhaps surprisingly, almost all of the assigned skills fit easily into this alphabetical scheme. As the introduction explains, each skill is an element of professionalism rather than a doctrinal or research-based skill—the sort of “soft skills” that are often overlooked in law school. Each chapter consists of a short essay defining and discussing the skill followed by a brief description of the film and its historical context but with surprisingly little examination of the skill. Chapters also include 10 film discussion questions (some of which are factual while others are interpretive or reflective) and five exercises for improvement.

The book is thoroughly indexed by skill, movie title, actor, character name, and subject matter. Some chapters provide useful cross-references from one skill to another (balance is linked to judgment, which in turn is linked to honesty). Most of the essays themselves are not footnoted; the film descriptions tend to refer to pop culture resources like the Internet Movie Database, Turner Classic Movies, and The New York Times movie reviews for a great deal of the historical referents. Somewhat disappointingly, though the skills identified in each chapter are linked to professionalism, there are no connections made to the ABA’s model rules or code of professional conduct.

The audience for the book is not entirely clear. The book’s introduction discusses the context of law school courses in lawyering practice, but these are not “lesson plans” ready to translate to the classroom. Indeed, one of the five exercises in each chapter is specifically identified for law students, implying that the main audience for the text may be practicing lawyers. The content of the discussion questions and surface description provided in each chapter will require you to view the entire film before discussion. The mere fact that the questions are labeled “for discussion” implies a group setting of some kind. The exercises are not classroom exercises but more ideas for exploration or personal growth. They could certainly be adapted for classroom use; however, it would be more useful for creating lesson plans if specific scenes were identified that exemplify the skill in question. The author’s prior book, The Organized Lawyer, is clearly an aid aimed at lawyers and law students interested in improving their organizational skills on their own, but this seems more difficult to implement by oneself.

While the use of classic films does have advantages over some modern films in terms of content being appropriate for broader audiences, it also means the content is less familiar to younger readers. (This reviewer, who is not as young as she used to be, has only seen four of the 26 movies, though most of the titles were at least familiar.) The author notes that all 26 are available on DVD but only two are available streaming from Netflix. Most are available streaming from Blockbuster On Demand or iTunes, however, so they are widely available.

A quick and enjoyable read, this book is recommended for collections focusing on practical lawyering skills and for professionals interested in approaching skills from a new perspective.

Kate Irwin-Smiler, JD, MLS, is a reference librarian at the Wake Forest University Professional Center Library in Winston-Salem, North Carolina.

Help Determine the Direction of the Federal Depository Library Program

AALL and the Government Printing Office invite you to join the webinar Law Librarians and the Federal Depository Library Program: Working Together for a Successful Future, on April 19 at 11 a.m. CDT, and learn about the Federal Depository Library Program (FDLP) Forecast Study and how you can contribute. Learn the goals of the study, its three major components, and how you can participate in your state and/or region. Find out how Washington State federal depository libraries are working together to create a state forecast and action plan. The webinar is geared toward law librarians at federal depository libraries, but all AALL and chapter members are welcome to attend. Register by April 12.

This webinar is free for AALL members and chapter members.



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